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This article is the result of two successful trials in Winning Despite DNA: which the government charged multiple aggravated counts of , carrying mandatory prison sen- The Truth You Must Reveal tences of 25 years to life, based on the purported strength of the DNA evidence. While this article is not a compre- hensive explanation all DNA defenses, the reader will come to understand how the issues of location and trans- fer of DNA were critical to defending against the DNA evi- dence as well as that crime lab reports do not always reveal he report from the crime lab arrives. After visual the full truth about the biological evidence and DNA. and alternate light source testing, the 14-year- With little resources, defense counsel can battle T old victim’s underwear “reveals stains character- back against the misguided prosecutor’s purported istic of .” Chemical and serological examination DNA evidence and demonstrate to the jury that there of the victim’s bedsheet “confirms the presence of are other plausible explanations, many of which may seminal fluid.” And the lab found male DNA on her come from the mouths of the government’s forensic vaginal/cervical swab from the kit. biologists themselves. In the end, the jury can under- There is a presumption of infallibility when it stand that what may look like damaging evidence comes to biological evidence and DNA. When battling against the client has been neutralized by the defense against sex assault allegations, nothing is more fright- team’s better understanding of DNA evidence and ening for defense attorneys than prosecutors saying defense counsel’s revelation of the truth to the jury. they “have DNA evidence” against a client, i.e., that the crime lab forensic biologists have concluded that the First, Some Basics client’s body fluids, DNA, or other corroborative evi- dence has been found on or inside the alleged victim Transfer of DNA or at the crime scene. In most cases, prosecutors blind- To be relevant to a criminal allegation, biological ly accept the language found in the crime lab’s reports. evidence and DNA must be transferred to an object or It is easy for defense attorneys to become over- person that is spatially proximate to the crime. Skin whelmed by DNA evidence and to believe they have cells, white blood cells, hair follicles and sperm cells no way to fight back against the allegations. all contain DNA and, as such, are considered “sources” This is not true. The questions remain: What does the of DNA. A small amount of any of these sources can evidence really show? What evidence is missing create a full DNA profile, which can identify the client that a forensic biologist might “expect to find” under to the exclusion of any other person on the planet save the circumstances? his or her identical twin.

BY JASON B. SHEFFIELD

18 NACDL.ORG THE CHAMPION People can transfer their sources of fluids and stains. They do this by using Police took her bedsheet, towel, and run- DNA in many ways. They include trans- natural light and fluorescent light. ning shorts for examination. fer via saliva, urine, blood, vaginal dis- Based on the way the stain looks under The crime lab did extensive testing charge, pre-ejaculate, ejaculate, and these circumstances, a scientist may on the bed sheet and the girl’s shorts, through touch.1 conclude the stain is “consistent with” both of which revealed results that were Saliva contains a heavy concentration blood, saliva, or seminal fluid. helpful to the prosecution, including the of skin cells. This is the reason police use Next, the scientists will take a cutting3 presence of seminal fluid and sperm. “buccal swabs” to create profiles. Urine from the stain observed and submit the The towel revealed the defendant’s contains skin cells that release from the cutting to additional, more rigorous tests. DNA. This led to the government charg- walls of the urethra. White bloods cells are These tests include the following: (2) ing the defendant with rape, aggravated a rich source. Vaginal drainage traps skin chemical testing to look for seminal fluid; child molestation, aggravated sodomy, cells and/or another person’s DNA left via (3) microscopically viewing smears of the and aggravated sexual battery. digital penetration or intercourse. Men stain(s) to look for spermatozoa; (4) sero- The defendant denied all allega- can leave behind pre-ejaculate (a nutrient- logical testing to confirm the presence of tions, including ever being in her room. rich fluid for sperm), which also contains seminal fluid; (5) male DNA testing, which skin cells and some sperm cells that leak concludes the presence of male DNA; and Visual/ALS Testing: out of the penis prior to ejaculation. (6) DNA typing to identify the perpetrator Ejaculate contains densely collected sperm to a certain statistical relevance. Bed Sheet, Running cells. Finally, DNA can be left behind Shorts, and Towel through a person’s skin coming into con- DNA on or in the Alleged Victim What It Is7 tact with another person or object, also If contact or penetration is alleged, When there is any object suspected known as “touch DNA.” the alleged victim will be taken for a to contain biological fluid, the first stage SANE examination where a doctor or of testing is visual/alternative light ‘Touch’ DNA Sex Assault Nurse Examiner will con- source (“ALS”) testing. Biological stains 4 Humans constantly shed skin cells duct a forensic examination for possi- have common colors that range from WINNING DESPITE DNA and the DNA within at varying rates. ble injuries and collect swabs from chalky white (ejaculate) to yellow (urine The oils on the skin, along with sweat, inside her oral, vaginal, and anal cavity.5 or ejaculate) to red (blood). The lab sci- can make skin cells sticky and facilitate It is common practice also to take “peri” entists will create a numbering system a greater chance of transfer onto an swabs or swabs around the vagina and about the stains they observe, may circle object. All detectives will admit they anus, as it is common for discharge or the stains on the object, and then move wear gloves at a crime scene for this rea- drainage to flow into those areas.6 These the object into a darkroom for fluores- son. Bed sheets, shirt collars, and hats swabs are preserved as part of the evi- cent light/ALS testing. are a rich depository of touch DNA. dence in the case and are later tested. Certain biological fluids will glow One’s skin cells can be transferred under ALS. Some glow more brightly to the alleged victim in sexual assault A Working Example: than others. Seminal fluid and/or semen cases not only when a man touches the (the combination of seminal fluid and alleged victim (direct), but also when Case Allegations and sperm) glows very brightly. the alleged victim touches the man Crime Lab Results and then touches herself (indirect). In two similar cases, the teenage Government’s Case This subsequent transfer can continue victims accused the defendants of The government’s expert unveiled on and on. Thus, innocuous, innocent vaginal and anal rape and digital pen- the items seized to the jury and showed contact with the alleged victim can etration. The government presented a the jury photographs of the stains under result in the defendant’s DNA being wide spectrum of biological and DNA ALS. She then testified that the bed- transferred anywhere. It is important evidence. This article combines ele- sheet, the crotch of the victim’s running to note that touch DNA, whether ments of each case to create a new shorts, and the towel all revealed stains deposited directly or indirectly, can hypothetic case. “characteristic of semen.” The govern- result in a full DNA profile. 2 The 15-year-old alleged victim ment argued that the expert’s testimony claimed her mother’s boyfriend came corroborated the victim’s account. Evidence Collection and Testing into her room at 2:00 a.m., climbed into These test results would not exist but for The goal of any prosecutor is to her bed, removed his and her the defendant’s assault of the victim. get the expert’s opinion to a “reason- running shorts, and then penetrated her able degree of scientific certainty” vagina and rectum without using a con- Defense Strategy about the source of the DNA, the dom. She feigned sleep until she could On cross-examination of the gov- transfer mechanism, and to whom it no longer do so. Then, she complied due ernment’s expert and through a defense belongs. Investigators should collect to her fear of what he would do if she expert, the jury learned that ALS would any item they believe may have come resisted. She claimed he ejaculated on cause other stains to glow that have into contact with or was used by the himself and used a towel from her bath- absolutely nothing to do with seminal perpetrator. The investigators will room to clean himself. She urinated fluid. These stains include detergents place those items in paper bags, not afterwards, put her running shorts back and paint, but more importantly saliva, plastic, and bring them back to the on, and went back to bed. She did not sweat, urine, and vaginal secretions!8 crime lab to determine the source of shower or douche. ALS testing is only a preliminary test for the DNA and how it was transferred. She was taken for a SANE later that seminal fluid or semen; it is not “con- Scientists will first conduct a (1) same day, which was performed within clusive.” The state’s expert had to admit visual examination of any items col- 18 hours of the alleged assault. The doc- that the stain was “equally consistent lected to look for various biological tor preserved the evidence in a rape kit. with vaginal secretions or urine.”

NACDL.ORG APRIL 2020 19 Chemical Examination: below). The microscope test is the only pre-ejaculate throughout intercourse Acid Phosphatase (AP Test): “true confirmatory test” for sperm. and well before ejaculation. This fluid oftentimes contains sperm cells, which What It Is9 Government’s Case can be found inside the vagina when The lab conducts a chemical exam- The crime lab scientist testified no condom was used, as in the allega- ination following the ALS testing. The she saw “few partially intact spermato- tions in this case. Through the process scientists take a cutting from the stain zoa” on the bed sheet and “many intact of excreting discharge, females can they previously visualized under ALS sperm” on the towel. There were no leak this fluid into the crotch of their and place it into a testing kit that sperm seen on the victim’s running underwear (or lining of their running resembles a contact lens holder. They shorts. Based on the victim’s testimony shorts). Thus, it was possible that add a few drops of a clear chemical and that the defendant removed his penis sperm would be found in the shorts note if the color changes (usually vio- before ejaculating and that she urinat- despite no ejaculation at all. let/purple). If so, the crime lab will ed after intercourse and wiped, the Defense counsel was able to report that the chemical test “indicates crime lab scientist testified that she amplify the argument because vaginal the presence of seminal fluid.” Any would “expect to find” sperm in the secretions were actually found in the color change, no matter how slight, crotch of the shorts. crotch (confirmed by the ALS test and indicates the presence of seminal fluid. In closing, the government argued the AP test). Thus, the absence of the evidence on the bed sheet and sperm in the crotch was inconsistent Government’s Case towel corroborated the victim’s with the allegations: specifically, that The government’s expert testified account that the defendant ejaculated when unprotected intercourse was that she took a cutting from the bed in the victim’s bed and used her towel alleged and pre-ejaculate is known to sheet, the crotch of the running shorts, to clean himself off. Regarding the occur prior to ejaculation, the jury and the towel. She performed her testing running shorts, the government should expect evidence of sperm cells according to protocol, and she noted argued that because the defendant in the crotch. No sperm cells equated how each chemical test on each object removed his penis before ejaculation, to no intercourse. “indicated the presence of seminal fluid.” there was no sperm on the victim and thus no reason for sperm to be left Serological Examination: Defense Strategy behind in the running shorts. In cross-examining the expert, the The PSA Test jury learned that just as ALS has alternative Defense Strategy What It Is12 explanations for glowing stains, this test Unfortunately, the towel had con- Absence a finding under the micro- also reacts and changes color for sub- clusive evidence that it not only con- scope, the crime lab scientist will per- stances other than seminal fluid. In fact, tained sperm cells, but also the defen- form a second chemical test, which is the test can also show color change with dant’s DNA to the exclusion of all designed to be a second attempt to con- certain levels of saliva and vaginal secre- others. The question remained, how- firm the presence of seminal fluid absent tions — also known as “false positives.” ever, about the towel: Did it really a visual confirmation under the micro- The secret to this fact lies with knowing the come from the victim’s bathroom or scope. Called the P30 test, it looks for a “sensitivity” of the test, i.e., knowing what did she remove it from the defendant’s specific protein only found in men: the minimum concentrations of saliva or vagi- bathroom or laundry and plant it in Prostate Specific Antigen (“PSA”). nal secretions need to be present to cause her bathroom?11 The kit resembles a pregnancy test the test to change color. Because each kit The defense’s expert disagreed with strip where one exposes a testing stick WINNING DESPITE DNA manufacturer has its own sensitivity level, the government expert’s report that the to the fluid created when one mixes a defense counsel may need to consult with sheet had “few partial sperm” on it. In third cutting and a new chemical. It is the defense expert. Here, however, the gov- fact, the photo taken of the microscope’s considered positive or “confirmatory” ernment’s expert admitted the test did not visual field showed only one round for seminal fluid if two lines appear in conclusively prove seminal fluid for these object. But it did not have a “collar” or a the viewing field of the testing stick. reasons. In the absence of cross-examina- “tail.” Without these identifying charac- One line is negative. tion, the jury would have been left with the teristics, the defense expert testified it wrong impression. was not a sperm cell but was “most like- Government’s Case ly” a fungal cell. The crime lab did not perform the Microscopic Examination: While the government had its additional confirmatory serological test argument about the shorts, the testi- due to the ample sperm cells found on Smears mony about urination clearing sperm the towel under microscope. What It Is10 was wrong. It failed to acknowledge Due to the minimal nature of the If the chemical test indicates semi- the phenomenon of “vaginal dis- sperm evidence on the sheet, the crime nal fluid, the crime lab scientist will take charge/drainage” and what might pos- lab opted to perform the serological test a second cutting from the object adja- sibly be found in the crotch under nor- in an attempt to resolve the question of cent to the first and soak it in a chemical mal circumstances. seminal fluid. In doing so, however, sero- reagent. The scientist then “smears” or Two defense experts, a SANE logical testing of the bed sheet “failed to rubs the fluid on a glass slide. Under a nurse and a forensic biologist, testified confirm the presence of seminal fluid.” high-powered lens, the scientist can that urinating does not clear ejaculate The government’s case suddenly had a visualize sperm and confirm its presence from inside the vagina because the conflict in the evidence, and the biolo- on the object. If sperm is confirmed, urethra is outside the vagina. Only gist had to admit it. there is no need to do further serological douching would do this. Additionally, As for the crotch of the shorts, the testing via the P30 test (explained both experts testified that men leak biologist testified that the P30 test “con-

20 NACDL.ORG THE CHAMPION Defense Strategy Defense experts testified that the government’s testimony was in error. After all, if the victim’s DNA could over- power the male’s DNA, what would be the point of a “male DNA” test? Next, defense experts educated the jury on the transfer of DNA through touch inside the vagina and rectum, and they responded to a series of hypotheti- cal questions to solidify the point. Yes, there were certain circumstances in which male DNA was “more likely” to be found:18 digital penetration (fingers); intercourse when no condom was used; forceful penetration without lubrica-

© jarun011 | stock.adobe.com tion; using saliva as a lubricant; no douching afterwards (and urinating or The PSA test is considered confirmatory for seminal fluid if two lines appear in the viewing field. showering does not remove the male DNA from inside the vagina); and swab- firmed the presence of seminal fluid.” It Depending on her age and/or claim, any bing those areas within 18 to 24 hours. was a big blow to the defense because it male DNA found on her intimate parts — These circumstances were all facts in the essentially confirmed the defense’s theo- breasts, buttocks, inner thighs, vaginal, rec- defendant’s case. ry of drainage and that the victim’s tum — will create suspicion and fortify the Ultimately, defense experts testified drainage contained a protein that can government’s case because it raises this that a “higher probability” existed that only come from a male’s penis. question: What is male DNA doing there? male DNA would be found on the swabs The test detects the presence of male under those specific facts and circum- Defense Strategy DNA16 by looking solely for evidence of stances. In closing, defense counsel After this third test, the bedsheet the male’s “Y” chromosome.17 Thus, if argued the absence of male DNA on the became less significant to the govern- the test finds the presence of “Y” chro- swabs was conclusive proof that the ment’s case and more supportive of the mosomes, they cannot be related to the alleged victim lied. There was no inter- defense. The towel was beyond contra- alleged victim; they must be from a course or sodomy. diction. The running shorts, however, male. How does the test work? Imagine were still in play for the government searching through a bowl of thousands DNA Typing unless neutralized. of plastic marbles in search of two mag- The learned truth is the PSA is not netic ones. The Y-STR test is the equiva- What It Is specific to just the male prostate! In fact, lent of using a magnet to home in on At its best, “DNA typing” evidence the crime lab’s training included the fact and extract those two magnetic marbles. can only corroborate a claim; it cannot that it could be found in lesser concen- It does not become blinded or confused prove counsel’s client committed the trations in saliva, amniotic fluid, female by the unrelated plastic marbles. crime. However, the presence of the serum, breast milk, and most important- Once male DNA is discovered, the client’s DNA at a certain location can WINNING DESPITE DNA ly female urine.13 The defense team government will seek to answer these absolutely sink the client’s case unless offered this testimony through its own questions: To whom does the DNA defense counsel can explain how it got forensic biologist because the lab scien- belong? (See DNA Typing below.); What on the victim in a way that is consistent tist vacillated a bit on cross.14 is the source of the male DNA — skin, with his innocence. In summary, (1) defense evidence blood, or sperm? How did it get there — When weighing the strength of showed that the glow in the crotch of touch, saliva, drainage, or ejaculate? DNA evidence, counsel must consider the running shorts could be vaginal several different factors before being secretions; (2) the AP test (a test for Government’s Case able to determine just how bad (or semen) had a false positive for vaginal The biologist for the government tes- how neutral) the evidence is. For secretions; (3) there were no sperm cells tified that she received vaginal, cervical example, the location of the DNA, the on microscope; and (4) the P30 test (a and anal swabs, which were collected with- absence of the DNA from where it test for prostate proteins) had a false in 18 hours of the alleged assault by the might be expected, the various tests positive for female urine. SANE exam nurse. The results on all, how- used along the way by the crime lab, After acquittal, the jury revealed ever, were negative: no male DNA found. and the statistical analysis of the they were appalled that the government Interestingly, the government’s results can create many levels of attack left it to the defense to point out the false expert testified that she would “not by counsel in defense of the client. positive nature of these tests. expect to find” male DNA from the If present, DNA typing can produce vaginal or rectal swab because the vic- a statistical certainty that the DNA at a Male DNA: Y-STR Typing tim’s DNA would “overpower” any particular location is the client’s DNA to male DNA. No amount of cross-exam- the exclusion of all others on the planet, What It Is ination could undo her testimony. save his identical twin. The defense Of particular significance is the deter- The government later argued that it attorney needs to explain that. It may be, mination of whether the victim has the was possible male DNA was present, however, that the client “cannot be presence of male DNA in or on her body.15 just overpowered. excluded” or, in other words, is “includ-

22 NACDL.ORG THE CHAMPION ed” in the population of possible people the unknown third profile and permit To help the jury understand that the with no greater certainty than “one of the defense to offer evidence of the girl mother was included in the possible ID, any of the males in the defendant’s being caught having a sexual relation- defense counsel and defense experts had paternal line” or better yet, “one out of ship with her boyfriend, which would to simplify DNA typing. every four” persons on the planet. traditionally be barred by the Rape First, the jury learned that to During trial, this would be the equiva- Shield Statute.19 reach the point where a DNA expert lent of telling the jurors that 3 out of the The government’s scientist testi- can create a statistic in the trillions, 12 of them similarly are included in the fied that the defendant’s DNA on the DNA typing homes in on 16 to 23 DNA results. (Where was Juror Number towel was present to the statistical cer- locations on a strand of DNA. While a Four that night?) tainty of 1 and 9 quintillion. There are strand of DNA has millions of loca- only 6 billion people on the planet. tions, it is this limited number that is Government’s Case The DNA found on the towel definite- used to distinguish one human being Due to the “few sperm” found on ly belonged to the defendant (or his from another. These locations are the sheet, the lab performed DNA typ- identical twin), save contamination called loci. The graph in Figure 1 rep- ing. The biologists homed in on the issues. In closing, the government resents this in the left column. At each same 2mm x 2mm cutting where they reminded the jury that microscope locus, an individual will have two alle- saw the “sperm,” and discovered sur- testing revealed many sperm cells, les, one from the mother and one from prising results: there was evidence of which led to its conclusion that there the father. This will be represented by “at least three profiles.” Of the three, was no plausible explanation for the two numbers.20 Sometimes, the mother the victim was the only conclusive ID defendant’s towel with semen on it and father give the same number at the at 1 and 9 quintillion. Of the other two being in the alleged victim’s private same loci. In that case, only one num- profiles, one purportedly “matched” bathroom other than her report. ber will be seen at that loci. Loci 4, 7, the defendant. The government, how- The biologist also gave inflammato- and 16 show this in the right column. ever, chose not to inform the jury about ry testimony that there was a second To get to the point of analysis, one the DNA results on the sheet. They profile on the towel found in the same must compare a “known sample of were afraid it would “open the door” to 2mm x 2mm cutting, which “matched” DNA” to an “unknown sample” or the victim. Based on the victim’s testi- “suspected sample” and see where (or Figure 1: Known DNA of Victim mony that the defendant penetrated her if) they match at these 16 loci. In the vagina without a condom and then case, defense counsel needed to prove Victim’s Mother’s / wiped himself with the towel, the biolo- the second profile on the towel simi- Loci Father’s Alleles gist explained that the victim’s DNA larly “matched” the mother. Using the could be on the towel simply due to his known DNA of the victim (Figure 1) 1 12 / 15 penetration of her vagina as she testified. and the unknown second profile (Figure 2) on the towel, defense 2 7 /11 Defense Strategy experts explained the unknown profile Defense experts disagreed not only was not as complete as the known pro- 3 10 / 9 with the biologist’s use of the word file. It only showed one allele at each of “match” at trial but also in her report. three locations — 5, 10, and 13. 4 15 They disagreed because the word “match” Of course, the scientists at the created the appearance that the crime lab crime lab were only asked to compare 5 13 / 14 had conclusively determined the second the victim’s known with the unknown WINNING DESPITE DNA profile in fact belonged to the victim. second profile. When they did, they 6 27 / 22 Nothing was further from the truth. wrote that the results “matched the Defense experts explained that the victim at three loci.” Figure 3 shows 7 13 second profile only created a statistical how they lined it up to compare. certainty of one out of every four people. The government did not seek to 8 17 / 15 The alleged victim was only included in obtain the mother’s DNA or DNA from the possible population of people, just as the victim’s father, which meant the 9 14 / 18 one out of every four of the jurors was government did not know which alleles included. It gets better, however. Based the mother or father contributed at the 10 13 / 19 on the DNA profile, the alleged victim’s victim’s loci. In other words, was it the mother was also included in the popula- 14 or the 13 from the mother at loci 5? 11 25 / 22 tion — the mother who shared a bath- Not knowing the answer allowed the room with the defendant. defense experts to testify that the 13 at 12 11 / 9 This allowed defense counsel to loci 5 could be from the mother. The argue that the DNA evidence on the testimony was the same regarding the towel proved only that the defendant 13 at loci 10 and the 23 at loci 13. Thus, 13 23/ 15 had ejaculated on it and that it was the jury learned the DNA on the towel equally probable the mother’s DNA not only “matched” one out of four 14 14 / 12 was on it. To solidify this point, defense people in the population, but also the counsel offered additional testimony victim’s mother. 15 5 / 10 that (1) the towel matched a set of tow- The same was true on cross-exam- els only used by the defendant and the ination of the government’s biologist: 16 14 girl’s mother and (2) the alleged victim She had to concede the point and had her own set of towels. admit she could not tell the jury that

24 NACDL.ORG THE CHAMPION During the process of DNA typ- expert’s former testimony that the Figure 2: Uknown Profile ing, the biologist will soak the cutting alleged “few sperm” on the sheet was or swab and drain the fluid into a more likely to be a fungal cell. Loci Unknown 2nd Profile small tube. The biologist places the tube into a centrifuge machine and Counsel Must spins it at a high rate. This spinning is 1 designed to separate lighter weight Become Informed skin cells from heavier sperm cells. In most jurisdictions, records about 2 The lighter weight skin cells accumu- the crime lab’s investigation into the late at the top of the tube and are evidence remain confidential until 3 referred to as the “E1 Fraction.” The released by the government through the heavier weight sperm cells move to the exchange of discovery. Rarely, however, 4 bottom portion of the tube and form will the crime lab provide anything a harder pellet referred to as the “E2 other than the final reports, which may 5 13 Fraction.” The biologist draws off the be a few pages for each test done. But E1 Fraction by using a pipette and there is much more. Due to the proce- 6 tests for DNA. Any results are pre- dural nature of biological evidence and sumed to be from skin cells. DNA testing, crime labs must document 7 The biologist adds a more strin- every step — from mistakes, to licensing gent chemical back to the tube where issues, to internal communications, to 8 the harder pellet remains. These chem- results. These additional documents icals break open the sperm cells in the and photographs can be a treasure trove 9 E2 Fraction for DNA typing. The of exculpatory information. results of the DNA from both the E1 Defense lawyers will most likely 10 13 and E2 Fraction are reported on inter- have to subpoena the records. Do not nal lab documents, which can be share them with the government. 11 retrieved by both parties. If there is Defense lawyers should not be penal- any DNA found in the E2 Fraction, the ized simply because they must make 12 lab presumes that it is from sperm, the court aware of their needs. Proceed based on the inherent nature of the ex parte and provide the judge with a 13 23 centrifuge separation process. The theory of the case document to help absence of any DNA in the E2 layer is the court understand the critical yet another way to demonstrate to the nature of these records. Depending on 14 jury that no sperm is present where a jurisdiction’s rules of evidence, one would expect to find it. counsel may not have to provide the 15 records to the government at all.22 Government’s Case 16 The DNA from the towel came from Conclusion the E2 Fraction, as expected. The second profile came from the E1 Fraction. DNA does not always sink the the second profile, in fact, belonged to Because there was “no male DNA” found ship. Defense counsel has a real oppor- WINNING DESPITE DNA the victim. on any of the swabs, there was no further tunity to demonstrate to the jury that attempt to do DNA typing. Again, the the government’s case is not open and Male DNA: E1 and E2 government did not address the three shut simply because it has crime lab profiles found on the sheet. reports that seemingly corroborate the Fractions During Separation victim’s allegations. Whether the What It Is21 Defense Strategy defense team is seeking to impeach the The government has another Due to the court’s ruling on the government’s experts or call one of its avenue to argue that its DNA evidence sheet, defense experts informed the jury own, defense counsel can win despite supports the claim that sperm is pres- more thoroughly about the E2 the DNA evidence. In the defense of ent on an object or swab. This infor- Fraction. The experts highlighted that the two cases (condensed into one mation is not directly set out in any there was no DNA found in the E2 hypothetical trial), both juries report- report. Thus, defense counsel can be Fraction, which meant no sperm on the ed to defense counsel that it was due to blindsided by this testimony. sheet. This corroborated the defense the evidence revealed through cross- examination of the government’s Figure 3: Comparison of Profiles experts and the presentation by the defense experts about the DNA that Loci Unknown Second Profile Victim’s Known Alleles they acquitted both men. Special thanks to forensic biologist 5 13 14/13 Amy Mason. © 2020, National Association of 10 13 13/19 Criminal Defense Lawyers. All rights reserved. 13 23 15/23 (Continued on page 33)

26 NACDL.ORG THE CHAMPION testify, be careful not to shift the burden WINNING DESPITE DNA 2013, http://events.cdesign.com.au/ei/view in discussing the testimony the client pdf.esp?id=314&file=//srv3/events/event (Continued from page 26) gave. Remind the jury that, even though win/docs/pdf/anzfss2012abstract00613.pdf). the client testified, the question the 17. Females have two “X” jurors have sworn to answer is whether Notes chromosomes (XX); males have an “X” and the government has met its burden 1. https://nij.ojp.gov/topics/articles/ “Y” (XY). beyond a reasonable doubt. If the gov- dna-evidence-basics-identifying-gathering 18. “More likely” is not the same thing ernment did not do so on the basis of -and-transporting. as “expected.” Counsel may be hard the evidence it put forth in its case, the 2. http://www.theforensicinstitute.com/ pressed to get an expert to say she or he jury’s job is to return a “not guilty” ver- news-articles/views-and-opinions/ would expect to find male DNA under dict, irrespective of anything the client DNA-transfer. certain circumstances. said. If the client did not testify, look for 3. A cutting is roughly the size of a 19. Over defense objection, the ways to highlight the client’s story of one-fourth inch square. court ruled that the defense could not innocence through the other evidence 4. These professionals must balance inform the jury of the third profile. developed over the course of the trial. their support of the emotional needs of the However, the court did allow defense Time’s up, counsel. Will the client alleged victim with the integrity of the counsel to attack the “sperm” found on take the stand? forensic evidence collected during the the sheet. The court also allowed defense © 2020, National Association of medial-forensic examination. See National counsel to cross-examine the girl about Criminal Defense Lawyers. All rights Best Practices for Sexual Assault Kits: A the timeline between being in trouble reserved. n Multidisciplinary Approach, U.S. with the defendant and her outcry of Department of Justice, Office of Justice rape, and to argue it motivated her to About the Authors Programs, National Institute of Justice. falsely accuse him. 5. A “rape kit” as it is typically called, 20. The number represents the Michael Bloch is Counsel at Kaplan contains a comb and several q-tips (swabs) “number of times” a particular sequence HELPING CLIENTS TESTIFY Hecker & Fink LLP. to collect any evidence left behind by the repeats itself at that loci. Fifteen means it He is an experi- perpetrator on the victim’s body, including repeats itself 15 times. enced trial lawyer hairs, saliva, seminal fluid, and 21. https://www.ncbi.nlm.nih.gov/pmc/ whose practice spermatozoa. articles/PMC3119174/ (citing P. Gill, A.J. focuses on white 6. See endnote 5. Jeffreys & D.J. Werrett, Forensic Application collar matters and 7. Maher Noureddine, Ph.D., Forensic of DNA Fingerprints, 318 NATURE 577–579 public interest liti- Tests for Semen: What You Should Know, Oct. (1985), doi: 10.1038/318577a0.). gation. Prior to 19, 2011, https://ncforensics.wordpress.com/ 22. Some rules of discovery allow joining Kaplan, 2011/10/19/forensic-tests-for-semen-what counsel to use the records on cross- Bloch was a public defender and super- -you-should-know. examination without having to provide vising attorney at the Bronx Defenders. 8. Vaginal secretions occur at all ages them prior to trial. Additionally, experts of development. can review documents and the hearsay Michael L. Bloch 9. Maher Noureddine, supra note 7. within and render an opinion without Kaplan Hecker & Fink LLP 10. Id. revealing the source of the hearsay (save , NY 11. The evidence that supported this cross-examination). If the defense 212-763-0883 question will be revealed later in the article. chooses to use the records in its case-in- EMAIL [email protected] 12. Maher Noureddine, supra note 7. chief, the defense may be required to WEBSITE www.kaplanhecker.com 13. PSA in Body Fluids, SERATEC User’s provide them prior to trial. n TWITTER @MichaelBloch15 Manual: An Overview for Users of the

SERATEC© PSA Semiquant Tests. About the Author Sean Hecker is a Partner at Kaplan 14. The crime lab scientist testified that Hecker & Fink LLP. she did not believe the test would alert to Jason B. Sheffield is a criminal trial and He is an experi- the presence of female urine due to the appellate attorney. enced trial lawyer sensitivity of the test excluding it. He is also an adjunct whose practice 15. The presence of male DNA, professor at Emory focuses on white however, is not the same thing as creating University’s School collar criminal a profile that identifies a unique individual of Law, where he defense, govern- through DNA typing. teaches students ment and internal 16. https://www.tasanet.com/Know about the use of investigations, com- ledge-Center/Articles/ArtMID/477/ArticleID/ experts in criminal NACDL MEMBER plex civil litigation, 169/Detecting-the-Presence-of-Male-DNA and civil trials. NACDL MEMBER and regulatory compliance. -in-Cases-of-Sexual-Assault-without -Ejaculation (citing Betz, et al., DYS STR Analysis Sean Hecker with Epithelial Cells in a Rape Case, 118 FOR. SCI. Jason B. Sheffield Kaplan Hecker & Fink LLP INTL. 126-130 (2001); I. Sibille et al., Y-STR DNA Peters, Rubin, Sheffield & Hodges, P.A. New York, NY Amplification as Biological Evidence in Sexually Decatur, Georgia 212-763-0883 Assaulted Female Victims with No Cytological 404-296-5300 EMAIL EMAIL [email protected] Detection of Spermatozoa, 125 FOR. SCI. INTL. jasonsheffieldattorney WEBSITE www.kaplanhecker.com 212-216 (2002); M. Franco & S. Trabuio, Impact @gmail.com TWITTER @hecker_sean of Y-Filer Testing on the Recovery of Evidence in WEBSITE https://justiceingeorgia.com Sexual Assault Investigations, accessed July 26,

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