Subject: A.7607/ Silver et al.

AN ACT to amend the criminal procedure law, the executive law and the state finance law, in relation to special indictments by fictitious name in DNA cases and to create an innocence project program

Position: Opposed This bill allows prosecutors to indict a person whose identity is unknown, based on DNA testing of evidence. Its purpose is to permit an indictment to be filed even if law enforcement has been unable to discover the identity of the suspect within the time period defined in the statute of limitations. With a "fictitious name indictment" the statute of limitations would cease to run and a suspect could be arrested at any time thereafter. The NYCLU has grave concerns that the use of these "fictitious name indictments" could in many cases violate the due process rights of those accused of crimes. These indictments are useful only in cases where a suspect cannot otherwise be identified within the applicable statutory time frame, and in fact has not been identified at the time of the indictment. As a result, these indictments will be brought where the following two circumstances co-exist:

  1. Law enforcement has insufficient evidence to identify a suspect within the applicable statute of limitations (five years for a felony). In such a situation DNA evidence will be the single most important evidence against that person and in effect the principal accuser is a DNA test.
  2. The defendant was unable at the time to monitor and challenge the standards and methods by which the DNA collection, handling and analysis took place, and his or her ability to do so many years after the fact is seriously compromised. With the passage of time the defendant, for all intents and purposes, is no longer able to confront that accuser.

The principal purpose of a statute of limitations is to protect an accused individual from having to defend against charges when the memory and availability of witnesses and other evidence may have diminished or even vanished over time. In any prosecution that takes place after the passage of a significant amount of time, an innocent person accused of a crime may be unable to remember what he or she was doing on a particular day, and alibi witnesses too will not remember, will move away or die. In circumstances where DNA evidence is available, it carries with it the force of apparent scientific certainty based on statistics that sound overwhelming. But mistakes in collection, labeling, testing and analysis do occur and samples may be contaminated. Ten, fifteen, twenty or more years after the fact, a defendant will be severely hampered in any effort to challenge those procedures: lab technicians will have forgotten the details of a particular test, or may have moved away or died. Even if their notes are preserved, they may not be available for cross-examination. Lab procedures may have changed and cannot be observed or effectively challenged by the defendant. How is an innocent person, accused by the testing performed on a strand of DNA, to defend herself in those circumstances? In addition to these fundamental concerns raised by fictitious name indictments, this bill raises other concerns about the standards that would apply in these circumstances:

  1. The bill allows an indictment if the suspect's "identity is established to the satisfaction of a grand jury ... by means of forensic ... DNA testing of evidence." The bill does not provide minimum standards for such evidence, such as the type and number of markers necessary to establish that a match was not due to chance.
  2. The bill provides no limitations on the types of crimes that may be prosecuted by means of these indictments, nor the types of DNA evidence that may be considered by the grand jury. A fresh bloodstain at the scene of a violent crime may be one thing. A hair or other biological material at the scene of a burglary is another.
  3. While the bill requires the commission on forensic science and the DNA subcommittee to promulgate guidelines for law enforcement on the methods and standards for the collection and preservation of material and for the identification, testing and use of DNA evidence, it mandates no minimum standards and provides that such guidelines shall be "voluntary" and "advisory".
  4. While the bill mandates the promulgation of a policy regarding the period of time during which evidence must be preserved, it provides no minimum safeguards and even contemplates that the policy may permit samples to be destroyed. Can we arrest someone based on DNA evidence from a sample we have now destroyed?

While we recognize the desire of the public and victims to apprehend those who commit serious crimes, we caution that our zeal must not allow us to abridge the due process rights guaranteed by the Constitution. It is essential to remember that mistakes do happen, and innocent people can be trapped in these systems when we forget to exercise due caution. This bill allows a delayed prosecution, beyond what the statute of limitations would otherwise dictate, based primarily on DNA evidence. By its very nature, DNA evidence is only as good as the process by which it is collected, preserved, tested and analyzed, and by the techniques and care of those who perform those functions. Remove from the defendant the meaningful ability to cross-examine and challenge technicians and techniques, and you remove the defendant's ability to challenge his or her only accuser: a test result. NYCLU opposes passage of this bill.

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