Can The Prosecution Us DNA Taken From An Arrestee Without Consent Or A Warrant?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Gammill, 2 Kan App. 2d 627, 585 P.2d 1074 (1978).
This case addresses the following issues:
- Can the prosecution use hairs taken from an arrestee without a warrant, as part of a search incident to arrest?
- May the jury be read back portions of the trial transcript outside the presence of the defendant and defense counsel?
- When do improper comments made by the prosecution in closing arguments deprive a defendant of a fair trial?
In this case, the Kansas Court of Appeals ultimately overturned the conviction of the defendant based on the violation of three separate Constitutional Amendments. Id. at 633. First, hairs were plucked from the defendant by arresting officers without a warrant, in violation of the Fourth Amendment. Id. Second, a portion of the trial transcript was read back to the jury outside the presence of the defendant and his legal counsel, in violation of the Sixth Amendment’s right to confront accusers. Id. Finally, the prosecution was allowed to make several impermissible comments in closing arguments, including commenting on inadmissible evidence, in violation of the Fourteenth Amendment’s Due Process Clause. Id. Each of these errors required a new trial for the defendant. Id.
In this case, the defendant—a juvenile ultimately tried as an adult—was convicted of robbery and rape. Id. at 627-28. He was arrested and held in custody at a juvenile detention center. Id. at 627. While in custody, the officers at the center plucked between 20 and 25 pubic hairs from the defendant. Id. at 628. Neither the defendant nor his parents consented to action. Id. At trial, the prosecution attempted to admit a report showing that these hairs matched hairs found at the scene of the crime, but that report was properly held inadmissible. Id. at 632. Despite this, the prosecution commented on the report in closing arguments and suggested that it showed the hair found at the scene belonged to the defendant. Id. Also during closing arguments, the prosecution referred to the defendant as an “animal” and remarked on the credibility of witnesses. Id. Following closing arguments, the jury asked to have a portion of the testimony read back. Id. at 630. The judge allowed for the court reporter to enter the jury room and read the transcript, outside of the presence of the judge, the attorneys, and the defendant himself. Id. at 631.
The first issue to address was whether or not the hairs collected without a warrant could be used without violating the Fourth Amendment. Id. at 628. The court first noted that the number of hairs taken (20 to 25), the way they were taken (by being plucked, follicle and all), and the area of the body from where they were taken (pubic region) each indicated “needless indignity visited upon the defendant.” Id. These activities violate “the interests in human dignitary and privacy which the Fourth Amendment protects.” Id. The court found no exigency or urgency to forgive the lack of a warrant. Id. This included the search incident to arrest exception, because the hairs were in no danger of being destroyed. Id.
The court next dealt with the reading of a portion of the trial transcript outside the presence of the defendant. Id. at 630. The court made quick work of this based on two authorities interpreting the Confrontation Clause of the Sixth Amendment. Id. at 630-31. First, Kansas Supreme Court had determined that when a transcript is read back the court reports “does so in the presence of the parties to the action.” Id. at 631. Second, the United States Supreme Court has held a criminal defendant is “most basic right” is to “be present in the courtroom at every stage of his trial.” Id. As “reading back any testimony to a sequestered jury is a part of trial,” the Sixth Amendment requires a defendant to be present for the reading back. Id.
Finally, the court discussed remarks made by the prosecution during closing arguments. Id. at 631. The court found that referring to the defendant as an “animal,” though improper, did not reach the level of denying due process and requiring a new trial. Id. However, the remarks concerning the content of the non-admitted report fell outside what the Fourteenth Amendment allows. Id. at 632. Such remarks “undermined the authority and the credibility of the court” and thus denied due process of law to the defendant. Id. The same was true of improper comments regarding the credibility of witnesses. Id.
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