Sunday, October 26, 2008

calling all motion writers

I'm looking for a really good analysis, scientific or legal, that supports why DNA samples are testimonial evidence and thus protected by the Fifth Amendment (unlike blood, or hair, which are physical evidence and thus not implicated by the Fifth Amendment).  I cannot possibly do a thorough review of the millions of scientific articles on the endless possibilities of the information we can get from DNA, but I hope to use this information some day to write a motion in limine. 
 
I think it's fun to argue that 40 years of clearly established Fifth Amendment jurisprudence was wrong. 
 
If there are any non-lawyers reading this, how do you feel about the fact that the government has the right to get your fingerprints / blood / hair and use it against you as they see fit?  Do you think the government should be able to use your body to prosecute you?  Do you think the right against self-incrimination should be involved in that determination at all?

5 comments:

Tom said...

Most of what I know about the law is via Law and Order, but don't they use samples like blood/hair to extract DNA?

In other words, I don't understand how they're treated differently.

WomanoftheLaw said...

Yes, they do. The distinction I'm trying to use is that collecting blood or urine, say for the purposes of determining intoxication (which is where most of this Fifth Amendment law comes from) is different from collecting blood to analyze DNA. I don't know that anyone does hair analysis that DOESN'T involve DNA anymore, but if there were such an analysis, I would argue that's different from DNA analysis.

So the law seems to say (Schmerber v. California) that your body is not testimonial, and that only compelled TESTIMONY, or words, is what is prohibited by the Fifth Amendment. Now, the words of the Fifth Amendment are to the effect that no defendant is to be a witness against himself. This "testimonial" rule is made up. Nevertheless, I guess my argument is that DNA is not like testing blood for alcohol, or testing urine for pot. Can you imagine people just having your DNA? For kicks? (or for prosecution, whatever.) Creepy.

rguerriero said...

. In the case of U.S. v. Hubbell, 530 U.S. 27 (2000) Justice Thomas wrote in a concurring opinion that
“[a] substantial body of evidence suggests that the Fifth Amendment privilege protects against compelled production not just of incriminating testimony, but of any incriminating evidence…. The Fifth Amendment provides that ‘[n]o person …shall be compelled in any criminal case to be a witness against himself.’ The key word at issue in this case is ‘witness.’ The Court’s opinion, relying on prior cases, essentially defines ‘witness’ as a person who provides testimony, and thus restricts the Fifth Amendment’s ban to only those communications ‘that are testimonial’ in character’. …None of the Court’s cases, however, has undertaken an analysis of the meaning of the term at the time of the founding. A review of that period reveals substantial support for the view that the term ‘witness’ meant a person who gives or furnishes evidence, a broader meaning than that which our case law currently ascribes to the term.”

TiffanyBee said...

if i am understanding the argument correctly...as we live and breath we are self incriminating because we have body "fragments" (i.e., blood, hair, saliva, etc) that can be used for DNA and/or identification purposes. that seems wrong to me and certainly not how the Amendments were meant to be interpreted.

Lost Soul said...

Hi - Sorry, I don't have an answer to your question...but, I do have a question for you. I read your Sallie Mae nightmare post. I had a couple of questions for you. It would be great if you could email me and I could explain who I am and the information I'm seeking. I can be emailed at lrory- at-epsteinlewis.com. Thanks. And, great blog!