[ExI] interesting legal development

Tue Oct 31 16:59:51 UTC 2023

…> On Behalf Of Adrian Tymes via extropy-chat
Subject: Re: [ExI] interesting legal development

On Tue, Oct 31, 2023 at 8:38 AM spike jones via extropy-chat <extropy-chat at lists.extropy.org <mailto:extropy-chat at lists.extropy.org> > wrote:

In a currently ongoing legal case, a mass murderer left behind a sheath with his DNA on it.  The constables used PCR and figured out who it was whodunnit.  But… since it is legally untested…

>…By "legally untested" do you mean its admissibility has yet to be tested in court?  The court would surely agree that the PCR test itself has certainly been performed…

Ja, it hasn’t been used in court as evidence.  Relevant side info: AncestryDNA is the biggest commercial site with the most users and most existing family trees.  This helps if you have an unknown DNA sample.  It leads to a group of possibilities, sometimes as specific as brothers, but more commonly a group including first and second cousins.  So the constables can get a list, find out who they are, where they live etc.  The murders happened at a university in Idaho.  They get a group of second cousins, go right down the list: that guy is a dentist in Florida, that guy is a roofer in Tennessee, female, female, teacher in Missouri, female, graduate student in Idaho…  hmmm… insurance salesman in West Virginia, etc.  They go thru the coupla dozen, eliminate female suspects because… women don’t usually do stuff like this, and hey, lets go have a chat with this Idaho grad student.

Once they know whodunnit but need evidence, it is pretty easy to get.  They watch the guy, he flees, they follow him, he knows damn well he is being followed, makes mistakes, they eventually have enough on him to arrest him.

Now the case goes to the court, but… the prosecution does not reveal why they knew it was him.

So the question becomes… Is the prosecution required to reveal that they caught him because they knew to gather evidence specifically on that guy, rather than the few thousand other students on the campus, all because he left DNA on the sheath for the knife he used to kill the four students?

Another question: were the defendants’ 4th and 5th amendment rights violated by the use of comparative DNA?  Reasoning: when his cousins did the DNA test, they had no way of knowing they might be (in a sense) testifying in court?  If they require the prosecution to reveal, is that grounds for dismissing any evidence the prosecution found because they identified him to start with using DNA?  Or is DNA analogous to a witness who said he saw a man with broad shoulders, short hair, white, tall, running out of the apartment?  So the DNA is kind of a silent witness in a sense.  Or is it more analogous to video evidence?

That is a legally important question, because in US courts and definitely British courts, video evidence ranks lower than eyewitness testimony.  That played in a case where someone in London was shot in the head, didn’t die but is in a permanent vegetative state.  The bobbies caught the guy using video, followed the trail right to him, he still had the gun which matched the bullet.  But the two eyewitness accounts disagreed with the video: they said the shooter was white, which doesn’t match the guy they caught.  

The British courts dropped the charges.  In Britain, eyewitness accounts outrank video.

In the US now: we have no surviving eyewitnesses, the DNA was used to whittle down to a very short list of suspects, they followed the guy, he fled, they caught, now the case is newsworthy.

>…I would lean toward admitting it.  It's passive evidence, much like the video or traditional fingerprints.  The right to not self-incriminate is with regard to actively given evidence.  Going through one's public statements on social media is not the same as interrogating someone.  The only question is whether there is a reasonable expectation of privacy about one's genetic information when one gives it to a company for non-medical reasons, and increasingly there does not seem to be.  (For one, the company will often let random strangers see if their DNA matches yours.)

Ja me too Adrian.  I would argue that one gives up one’s reasonable expectation of privacy when in the act of committing mass murder.  I might go further, and rule that the prosecution is not required to turn over that DNA evidence they used to catch the perp, and allow the prosecution to proceed using only the evidence not linked to DNA.

spike

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