The use of a so-called “John Doe DNA warrant” has made the news recently after a convict escaped from an Arkansas prison last week. The inmate, former police chief Grant Hardin, plead guilty to a first-degree murder charge in 2017 when his DNA was entered into the Arkansas DNA database following his conviction; ultimately, that DNA entry returned as a match for DNA obtained in a 1997 rape that had previously gone unsolved. While the statute of limitations would have precluded his prosecution in that case under Arkansas state law, meaning that too much time had passed between the crime and investigators charging Hardin with the crime, prosecutors had used the aforementioned John Doe DNA Warrant to preserve the case. Prior to the statute of limitations passing, prosecutors issued an arrest warrant for the DNA profile from the DNA sample evidence that was recovered from the scene, despite not knowing the name of the person that DNA profile belonged to (hence the term “John Doe”). Based on that warrant, Hardin would later plead guilty to two rape charges from the 1997 investigation. The John Doe DNA warrant process was first implemented in Wisconsin in 2000 just days before the statute of limitations for a series of rapes were to pass, where the prosecutor argued that a DNA profile was sufficiently unique to identify a person who should be arrested, similar to a fingerprint or an identification by a witness through a photo lineup that would not require a witness identify a criminal by name. That case eventually led to a conviction of an inmate already in the Wisconsin penal system, which was upheld on appeal, and quickly spread around the United States with other states soon approving of the unique practice.
While investigators and law enforcement maintain the practice is a key tool for heinous crimes, in 2014 the National Association of Criminal Defense Lawyers Board adopted a resolution opposing the use of said warrants, saying that, “those charged in such a manner could be seriously hampered in their ability to mount an effective defense.” Compounding this reality is that the public generally sees DNA evidence as infallible and therefore could be more likely to convict a person whose DNA was at the scene and later subjected to such a warrant, such evidence could run into real practical problems for an innocent person charged with a crime trying to defend themselves. The DNA could degrade over time or be lost if not properly stored, making it difficult to rebut any of the prosecutor’s theories of the evidence. The process arguably circumvents legislative intent in crafting the criminal code to include statutes of limitations, which recognizes the need for fairness in the legal system as over time evidence is lost, witnesses can become unavailable or unreliable as memories fade, defendants may lose the ability to mount a proper defense (such as losing an alibi defense decades after the fact), as well as encouraging law enforcement to diligently investigate crimes for the sake of victims and their loved ones. Despite these concerns, the practice of using John Doe warrants continues unabated across the United States.
Judge Allows DNA Evidence Obtained Without a Warrant
Earlier this year, an Idaho judge overseeing the impending criminal trial of Bryan Kohberger, accused of stabbing to death four University of Idaho students in the middle of the night, denied his attorneys attempts to suppress DNA evidence who argued it was obtained in violation of his constitutional rights. Investigators used a process called Investigative Genetic Genealogy, or IGG, in their attempt to identify suspects using DNA recovered from the crime scene. Investigators using IGG create DNA profiles from the crime scene and upload the profile into public and consumer DNA databases, such as GEDmatch or FamilyTreeDNA, which are typically used by people voluntarily uploading their own DNA profiles to find unknown relatives or find out information about their ancestry. Investigators then try and find matches or partial matches that may reveal family members in the databases to narrow their suspects. The method gained national attention when it was first used to identify the eventual Golden State Killer as a possible suspect in 2018. In Kohberger’s case, law enforcement used trace DNA found of the sheath of a knife recovered from the crime scene to identify Kohberger as a possible suspect. At the motion to suppress hearing, Kohberger’s attorney’s argued that the F.B.I. violated his Fourth Amendment rights against unreasonable search and seizures when they uploaded the DNA profile onto a pair of public ancestry databases without a warrant that they knew law enforcement was restricted from accessing and that in doing so they were violating internal federal policy. “If society is not ready to support suppression of every bit of our DNA when the government does not have a warrant and searches it, there is no privacy right left,” lead defense attorney on the case Anne Taylor told the court at the hearing. However, the judge disagreed with this argument, saying that Kohberger could not, “show that he had legitimate expectation of privacy in the item or place searched.” While the judge’s ruling will impact Kohberger as he attempts to mount his defense in his trial scheduled for later this year, it is likely that further challenges to this investigatory practice will emerge in other cases which utilize these services that even the prosecution in that case admitted breached the terms of services of the DNA databases (although they said that did not amount to a constitutional violation). It will be interesting to see how privacy rights are implicated as the surveillance state grows and technology like A.I. is able to process information at ever greater speeds in investigations. Additional legal challenges are sure to come.
