A Lose-Lose Legal Technicality - Island of Sanity

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A Lose-Lose Legal Technicality


People accused of crimes sometimes escape punishment, not because they are found to be innocent, or even because they were guilty but the police were unable to find the evidence to prove it, but because they are able to take advantage of some legal technicality.

Conservatives generally argue that this is senseless. Known criminals are released to steal, kill, and rape again because the police or the courts failed to fill out the paperwork correctly. Why should a criminal literally get away with murder because the police made a mistake?

Liberals generally argue that the existence of legal technicalities protects vital civil rights. They serve as an incentive to the police and the courts to respect individual rights.

We could debate that. (Maybe someday I'll write about it.) But there's one legal technicality where our government has managed to combine the worst of both worlds: collecting DNA samples.

Sometimes the police discover DNA at the scene of a crime. If the victim managed to defend himself, there may be some of the attacker's blood at the scene. In a rape, the police often recover some of the attacker's semen. Etc. But such DNA evidence is only useful if the police have something to compare it to. So they need to collect DNA samples from likely suspects.

If the police have other evidence against a suspect, they may be able to get a search warrant to force him to give a DNA sample. But if they don't have any real evidence, maybe they're hoping the DNA will be the evidence, they can't force a suspect to give a DNA sample. He can simply say no.

(Of course if the person is guilty, he has good reason to refuse to give a DNA sample. But an innocent person might also refuse for any number of reasons. Maybe he resents being considered a suspect. Maybe he objects to giving a sample in principle. Maybe he's afraid of being railroaded. Maybe he just doesn't like the idea of giving body samples. Etc etc.)

And here's where we get to the legal technicality. If you throw something away, it's no longer legally yours. So the police can search a suspect's garbage for something that may have his DNA on it. They may find saliva on a cigarette butt or a paper cup, or blood on a band-aid. They can follow him around and hope he discards a paper cup or plastic utensil at a fast-food restaurant, etc. Of course if the suspect knows that the police are trying to get such a sample, he can be careful about what he throws away. The police may have to spend considerable time and effort getting a sample.

What purpose is served by this set of rules? I could understand a conservative saying that the police should be able to force a suspect to give a DNA sample, so that dangerous criminals could be caught. I could understand a liberal saying that the police should not be able to get DNA samples from unwilling suspects, to protect people's civil rights. But instead we have this silly game where the police have to follow a suspect around and search his garbage. From the conservative point of view, instead of just getting the sample from the obvious known source -- the person himself -- law enforcement has to search for an alternative source. Time that policemen could be doing something worthwhile is instead spent searching garbage. From the liberal point of view, the police can relentlessly pursue an innocent person until they get his DNA regardless of his wishes.

If you have a legal right to refuse to give a DNA sample, letting the police follow you around and harass you, and search your garbage until they get a sample seems to rather defeat the point. It would be like saying that you have a right to freedom of speech, but if you are saying things the government doesn't like, they can cut your phone lines, tear up your letters, block you Internet access, etc, so that no one can hear what you have to say. What is the point of having a legal right if the government can actively work to subvert it? Or if you don't have a right to keep your DNA private, then why make the police go through a big rigamarole to get it?

This isn't even a compromise. In a compromise, each side gives up a little and gets a little. They each get part of what they want but not all of it. But in this case, both sides give up all of what they want in return for nothing. The current rules neither facilitate law enforcement nor protect civil rights. They just turn law enforcement into a stupid game.

© 2012 by Jay Johansen


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