Using DNA in Michigan Sex Crimes

DNA testing evidence is a powerful tool that may be utilized to prove a person's innocence and exonerate them of all of the charges. DNA evidence is often used in conjunction with other witness testimony to reach a conviction, but it can also be used to prove a person did not commit a crime. Additionally, DNA evidence that the state used may be unreliable or require review for accuracy. Furthermore, it is possible that DNA evidence may place a person at the scene of a crime, but if that person had a close relationship with the accuser, then there may be other justification for their DNA to be at the location. Consequently, a person's presence at a particular location, even if proven by DNA evidence does not necessarily mean that they committed a crime.

Our sex crimes lawyers have been working with DNA and forensic scientists as part of a robust criminal defense practice for nearly two decades. Let us put our experience and knowledge to work for you. In this section, we will review the required DNA profiling laws, and some of the specific evidentiary concerns when utilizing DNA evidence.

DNA Evidence Admissibility in Court

A DNA molecule is a double helix shaped molecule that looks like a twisted ladder and is admissible in court if it follows acceptable laboratory standards and has supporting testimony of statistical interpretation. The outsides of the ladder are composed of deoxyribose sugar and phosphate. There are four base chemicals, Adenine, cytosine, guanine, and thymine that are connected by hydrogen bonds and are called allele pairs, and allele pairs form the rungs of the ladder. There are approximately three billion base pairs in one nuclear DNA molecule, and no two humans, except for identical twins have the same sequence of base pairs. These sequence variations are called polymorphisms and are the basis of DNA identification, and these characteristics are detectable in laboratory settings. The science, procedure, testing methodologies, and statistical interpretation of DNA are all very complicated, and properly utilizing the DNA evidence requires both knowledge and experience.

Nuclear DNA Testing vs. Mitochondrial DNA Testing

Many people may not realize that there are two types of DNA used in forensic science for court and there are also different types of DNA testing methodologies. Consequently, different questions should be asked depending on the type of DNA and the testing methodologies used in obtaining results. Nuclear DNA is the more common DNA. Interestingly, 99% of nuclear DNA material is shared by all humans, and therefore, only1% is used for identification purposes.

Mitochondrial DNA is different, because of its location in the body, shape, size, and prevalence. Mitochondrial DNA is inherited from the mother's side and has a looped shape like a twisted onion ring. It is located floating in the protoplasm of the mitochondria cells. Additionally, mitochondrial DNA only has around 16,000 base pairs of DNA, whereas nuclear DNA has as many as three billion base pairs of nucleotides.

Currently, nuclear DNA and mitochondrial DNA testing are considered very reliable for identifying people. However, the reality is that under ideal conditions both nuclear and mitochondrial DNA are useful for human identification, but the real evidentiary difference for criminal defense exists in the required statistical interpretive testimony.

Mitocondrial DNA is much newer, and consequently, the FBI database contains fewer entries. It is necessary to present a statistical analysis of the probability of the same sequence existing elsewhere in public to give the jury a point of comparison for deciding how probative the evidence is. Since mitochondrial DNA testing is so new, the FBI database is much smaller, and when compared an expert witness is asked about the statistical likelihood of a defendant’s mitochondrial DNA matching the DNA found at the crime scene the answer is almost always .01%. The jury hears the statistical likelihood of a match to be 1 in a 1000, and may automatically assume the match is reliable. However, the probative value of the evidence is only as good as the point of comparison, and the small sample size of the FBI database may be misleading. Without a thorough explanation the jury may believe the information is absolutely credible. Grabel & Associates proactively remains abreast of technological advances in forensic science to provide the highest caliber of cross-examination of forensic witnesses possible.

Different Methods of DNA Testing and Statistical Interpretation

There are several acceptable methods of DNA testing, but it is essential to know what method is utilized to ask the pertinent, relevant and probing questions regarding the procedure and methods employed by the evidence the prosecution is presenting. Restriction Fragment Length Polymorphisms (RFLP) is one method that is considered acceptable and admissible at trial without a Davis-Frye evidentiary hearing if generally accepted laboratory practices are followed in gathering the data. A Davis-Frye hearing is an evidentiary hearing in Michigan for the admissibility of scientific evidence in court. Another acceptable testing method is the Polymerase Chain Reaction (PCR) method of DNA testing, although the PCR method may require a Davis-Frye evidentiary hearing for admission into evidence. Finally, the most recent type of DNA testing is the STRmix Probabilistic Genotype Method of testing. This type of testing was held to be admissible in 2018 under MRE 702.

Another issue that is essential to using DNA in a trial is statistical analysis. The court has held that results of DNA identification testing would be a matter of speculation without the statistical analysis, and consequently, statistical analysis is necessary to connect a specific individual to a crime. Demonstrating the statistical probability of a DNA sequence found at the crime scene to a defendant's DNA or another person's DNA is necessary. Therefore, a presentation of statistical analysis is a foundational element of presenting DNA as evidence in court, and the prosecution may not claim DNA at the crime scene is a "match" to someone's blood without corroborating testimony identifying the statistical parameters and procedures utilized in determining the results presented.

Required DNA Profiling

Under Michigan law MCL 750.520m any person who is arrested for committing or attempting to commit a felony offense, or an offense that would be a felony if that offense was committed by an adult must submit to DNA profiling. This may seem like a surprising law, because it does not require any finding of guilt before the law requires a person to submit their DNA for use in a law enforcement database. However, it does require a DNA profile to be taken only based on an arrest for a felony, but we will also look at how to have your DNA removed from the database by getting the charges dismissed or acquitted.

Additionally, any person convicted of any of the following misdemeanors must submit to DNA profiling:

• Indecent exposure under MCL 750.335a(1)
• Disorderly person for window peeping under MCL 750.167(1)(c)
• Disorderly person for indecent/obscene conduct in public under MCL 750.167(1)(f)
• Disorderly person for loitering in a house of ill fame or prostitution under MCL 750.335a(1)
• First and second prostitution convictions under MCL 750.45(1) and under MCL 750.450(2)
• Leasing a house for purposes of prostitution under MCL 750.454

Therefore, a person will be required to submit to DNA profiling if they are arrested for a felony or attempted felony, or any of the listed misdemeanors. Under MCL 28.176 the law requires the state permanently retain the DNA records, and consequently there is a large database of DNA profiles of people arrested for felonies and convicted of sexually related misdemeanors. Refusing to submit to DNA profiling is a crime itself under MCL 28.173a(1), and has a maximum penalty of one year in prison and $1000 fine.

Acceptable Uses of DNA Information Form Profiling Kits

Under MCL 28.175a(1)(a)-(c) there are three acceptable uses for law enforcement to utilize DNA information. Law enforcement is allowed to use DNA profiles for identification purposes in the pursuit of law enforcement. Also, law enforcement uses the DNA profiles to assist with the recovery or identification of missing persons or human remains. Additionally, if the personal identifiers are removed, then the DNA profiles may be used for academic, research or statistical analysis. However, it is an impermissible use under the act to use the information to identify any medical or genetic disorder.

Getting Your DNA Profile Removed from the Database

It may seem like a miscarriage of justice to have your DNA taken, under potential penalty of imprisonment, when you are arrested, because you are still innocent until proven guilty. However, the law acknowledges this discrepancy and provides that if the charges are dismissed or an acquittal is reached, then you may have all biometric data including fingerprints and your DNA profile expunged or destroyed. Therefore, if you retain competent legal representation and get your case dismissed or acquitted, then it is possible to have your DNA profile removed from the data base.

DNA Testing Petition Post-Conviction under MCL 770.16

Although it is not a constitutional right to have the state’s evidence tested for DNA after a conviction has been entered, a person convicted of a felony may petition the circuit court under MCL 770.16 to have any materials used in the conviction tested. The petition may request that any biological material identified during the investigation leading to his or her conviction may be tested and a new trial may be granted based on the results of the DNA testing. There is a three-part test that is used for determining whether to grant the petition.

• DNA testing was done in the case or under MCL 770.16
• The results were inconclusive
• Testing with current DNA technology is likely inconclusive results

Consequently, if there is a possibility that examining DNA evidence of biological materials utilized in the case that led to a conviction can exonerate you or someone you care about, then it is possible to petition the court to get the state to test the evidence for the possibility of a new trial. This is a powerful post-conviction relief tool to prove a person’s innocence.

Grabel & Associates DNA Evidence Sex Defense Lawyers

Utilizing DNA evidence may be an essential component to proving a person’s innocence, if you or someone you care about has been accused or convicted of a sexual offense. The forensic science behind DNA is complicated, and cross examining the testimony regarding DNA evidence requires a great deal of knowledge and expertise. Grabel & Associates has been successfully defending against sex crimes using DNA evidence for more than 19 years, and we work with some of the best expert forensic witnesses in the State of Michigan. If you are looking for expert legal representation for sexually related charges such as criminal sexual conduct, statutory rape, or date rape, then contact us online or call usat 1-800-883-2138 24 hours a day, seven days a week, for your free consultation.