Legal Question in Criminal Law in Massachusetts

Re: Seeking D.N.A. answers

Here is an excerpt from a recent case:

Suppression issues. a. Voluntariness of consent to search. The defendant argues that the motion to suppress evidence [443 Mass. 253] derived from his blood samples should have been allowed because his consent to a search and seizure of his blood was obtained by trickery, and therefore was not voluntary. Specifically, the defendant contends that detectives affirmatively misled him to believe that the test results of his blood sample would be used only to compare with tests done on blood found inside the fourth victim's car, and not for any other purpose.

When the Commonwealth relies on consent to justify the lawfulness of a search, it must prove that consent was given freely and voluntarily. See > Bumper v. North Carolina, 391 U.S. 543, 548-549, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

Voluntariness of consent "is a question of fact to be determined from the totality of all the circumstances." > Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

The defendant focuses on one factor that has been identified under the "totality of all the circumstances" test, namely, deception as to purpose. See 3 W.R. LaFave, Search and Seizure, � 8.2(n), at 706-713 (3d ed. 1996 & Supp.2004).

In another case, a defendant refused to take a DNA test. The conclusion was that the request for a DNA test beginning with the use of a swab was reasonable.

You probably want to ask WHY they want ro retest.

There are different DNA tests. Some are done by electrophoresis; others wih a newer technology. It may be that they want a "better" test.

Some testers test for one set of chromosomes. Another group tests for a different set of chromosomes.

For ancestry SNA tests: there are 12-marker and 25-marker tests.

The science is getting more sophisticated almost daily.

My guess is that the results of the first test did not prove what "they" wanted to prove, and now they want to test your DNA with aanother system.

You did not give enough facts to get a more definite answer.

Good luck!

Re: Seeking D.N.A. answers -- Answer #2

Forgot to tell you.

READ the conditions of your probation.

Is DNA testing mentioned in it?

Read also the DNA Seizure and Dissemination Act, M.G.L.c. 22E, � � 1-15.

Ask your librarian for help in finding it. In Landry v A-G Harshbarger, the court wrote: approach. Rather, this Court finds and declares that M.G.L.c. 22E, � � 1- 15 violates the Fourth Amendment to the United States Constitution; independent of and apart from the Fourth Amendment, these provisions also violate art. 14 of the Declaration of Rights. For the reasons set forth below, plaintiffs' second motion for preliminary injunction is ALLOWED.

But the later cases still cite to it.

Because this answere is long, it has to be sent in pieces.

Re: Seeking D.N.A. answers -- Answer #3

"According to Section 3 of the Act, each DNA sample shall be collected by an authorized person, in accordance with regulations or procedures established by the director. Section 6 of the Act, further specifies that the director shall promulgate regulations governing the collection, submission, receipt, identification, storage, and disposal of DNA samples. The results of all DNA analyses shall become part of the state DNA database.

In the event that an individual refuses to submit to a DNA sample, Section 4 allows authorized law enforcement and correction personnel to use reasonable force to assist in collecting DNA samples. Additionally, Section 11 permits the imposition of a fine of not more than $1,000, or imprisonment in a jail or house of correction for not more than six months, or both for anyone who refuses to provide a DNA sample.

In January of 1998, defendants and their agents began to enforce the Act, without promulgating regulations, in violation of the Act's requirements. "

Re: Seeking D.N.A. answers -- Answer #4

In Com. v. Barros, 776 N.E.2d 1039, 56 Mass.App.Ct. 1103 (2002), the court wrote: "In March, 2000, his parole was revoked and he was sentenced to five years in State prison after he was charged with three subsequent offenses and with a failure to provide a DNA sample as required by G.L. c. 22E, � 3.

In another "inmate" case, the inmate brought a case to find out whether a DNA test mandatory. An appeal court judge said it was not required to give a sample for DNA testing. The SJC reversed saying that giving a sample would not violate a fundamntal right.

That same case focused on whether the offense was a "listed offense" or an "unlisted offense." Here is exactly what the court wrote:

The Superior Court judge reasoned that this construction was supported by the language in � 8 concerning persons on parole or probation on the effective date. (FN6) Those individuals are required to provide DNA samples only if their status results [429 Mass. 744] from the commission of a listed offense. That the Legislature chose to make a distinction between listed and unlisted offenses with respect to probationers and parolees does not require the court to construe the statute to make the same distinction with respect to incarcerated individuals. "[W]here the Legislature has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present." Beeler v. Downey, 387 Mass. 609, 616, 442 N.E.2d 19 (1982). Moreover, the Legislature is permitted to "deal with problems 'one step at a time' ... '[I]n confronting a multitude of evils, it may address itself to the phase of the problem most urgently requiring remedial action.' " Opinion of the Justices, 423 Mass. 1201, 1233, 668 N.E.2d 738 (1996), quoting Commonwealth v. McQuoid, 369 Mass. 925, 927, 344 N.E.2d 179 (1976). See Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (equal protection does not require the state to "choose between attacking every aspect of a problem or not attacking the problem at all"); Semler v. Oregon State Bd. of Dental Examiners, 294 U.S. 608, 610-611, 55 S.Ct. 570, 79 L.Ed. 1086 (1935). The Legislature might reasonably have concluded that it would be easier to obtain DNA samples from incarcerated individuals than from those who had been released. It might also have concluded that persons still under supervision for a listed offense should not for that reason be treated differently from those who are incarcerated. (FN7) Thus, it was rational to require samples from all incarcerated individuals even though it required samples from probationers and parolees only if they were under supervision for a listed offense.

Re: Seeking D.N.A. answers -- Answer #5

"The second sentence of � 8 of ch. 22E states: "Any person currently on probation or parole as the result of a conviction or judicial determination resulting from a charge of any of the above listed offenses, notwithstanding of the date of such conviction or judicial determination, shall submit a DNA sample to the department within 90 days of the effective date of this act."

The second case is MURPHY v. DEPARTMENT OF CORRECTION, 429 Mass. 736, 711 N.E.2d 149 (1999).

In Landry v. Dept of Corrections, the court wrote:

(a) The Act. All fifty States have enacted statutes creating a DNA database. By St.1997, c. 106, the Act was adopted in Massachusetts, and codified as G.L. c. 22E, �� 1- 15. In creating the Act, the Legislature stated its purpose as follows: "It shall be the policy of the commonwealth to assist local, state and federal criminal justice and law enforcement agencies in: (1) deterring and discovering crimes and recidivistic criminal activity; (2) identifying individuals for, and excluding individuals from, criminal investigation or prosecution; and (3) searching for missing persons. Said policy shall be served by establishing facilities for comparing biological evidence recovered during criminal investigations with biological material obtained from offenders convicted of crimes in the commonwealth." St.1997, c. 106, � 1. The Legislature went on to express its "find[ing] that the collection and analysis of DNA samples is an integral part of the investigation and prosecution of criminal offenses and that such technology is an important tool in the defense of individuals charged with criminal offenses in the commonwealth." St.1997, c. 106, � 2.

The Act provides as follows. Any person convicted of the perpetration of any of thirty-three enumerated crimes (or an attempt or conspiracy to commit any of them) must submit a DNA sample to the State crime laboratory. G.L. c. 22E,� 3. The Act further requires submission of a DNA sample from any person currently incarcerated, on probation, or on parole as the result of a conviction or judicial determination resulting from a charge of any of the listed offenses, notwithstanding the date of such conviction or judicial determination. G.L. c. 22E, � 3. St.1997, [429 Mass. 339] c. 106, � 8. If a conviction is subsequently reversed and then dismissed, relevant DNA records may be expunged by court order. G.L. c. 22E, � 15. Failure to furnish a DNA sample is punishable by a $1,000 fine or up to six months' imprisonment. G.L. c. 22E, � 11. Law enforcement officers and correction personnel are authorized to use "reasonable force" to assist in collecting the DNA samples "in cases where an individual refuses to submit to such collection as required under [the Act]." G.L. c. 22E, � 4 (a ).

Re: Seeking D.N.A. answers -- Answer #6

A "DNA sample" is defined by the statute as "biological evidence of any nature that is utilized to conduct DNA analysis." G.L. c. 22E, � 1. The Act provides that, once a sample is collected, through a process established by way of detailed regulations, it is forwarded to the director of the State crime laboratory within the Department of the State police (director) for analysis. G.L. c. 22E, � 6. "DNA analysis" entails undertaking "DNA typing tests" on the submitted DNA samples "that generate numerical identification information." G.L. c. 22E, � 1. The result is a "DNA record," which contains the numerical identification information derived from the samples by the analysis. G.L. c. 22E, � 1. Once a sample has been processed, the DNA record becomes a part of the State DNA database, G.L. c. 22E, � 3, and will also be forwarded to the Federal Bureau of Investigation (FBI) for storage and maintenance in CODIS, or "combined DNA index

system," the "[FBI]'s national DNA identification index system which facilitates the storage and exchange of DNA records submitted by state and local criminal justice and law enforcement agencies." G.L. c. 22E, � 1. See G.L. c. 22E, � 10 (b ).

Re: Seeking D.N.A. answers -- Answer #7

The Act limits access to, and use of, the information obtained from DNA samples. G.L. c. 22E, �� 6- 10. DNA records are confidential, are not included in the criminal offender record information system, and may be disclosed only as authorized by the Act. G.L. c. 22E, � 9. The Act states that the director is to forward a DNA record to local police departments, to the Department of Correction, to a sheriff's department, to the parole board, or to prosecuting officers on written or electronic request. G.L. c. 22E, � 10(a ). It further mandates disclosure of DNA records to "local, state and federal criminal justice and law enforcement agencies, including forensic laboratories serving such agencies, for identification purposes in order to further official criminal investigations or prosecutions." G.L. c. 22E,[429 Mass. 340] � 10(b )(1) To view preceding link please click here . The Act also requires that DNA records be furnished to the FBI for inclusion in CODIS, G.L. c. 22E, � 10(b )(2); that defendants who are charged with crimes as a result of a DNA database search be provided with a copy of their own DNA record, G.L. c. 22E, � 10(b )(3); and that DNA records be made available as necessary to obtain Federal funding. G.L. c. 22E, � 10(c ).

The Act allows the director, at his discretion, to make DNA records, after all personal identifying information is removed, available "to authorized persons or organizations," for the limited purpose of "advancing DNA analysis methods and supporting statistical interpretation of DNA analysis, including development of population databases." G.L. c. 22E, � 10(d )(1). DNA records may also be supplied for identifying victims of mass disasters, identifying missing persons, and for "advancing other humanitarian purposes." G.L. c. 22E, � 10(d )(2)-(4).

Landry v. Attorney General, 429 Mass. 336,709 N.E.2d 1085, (Mass. 1999)

In Com v Ammons, 1998 WL 1021620 (Mass.Super. 1998): Any person who is convicted of any offense listed in section 3 of chapter 22E of the General Laws who is currently incarcerated in any prison or house of correction on the effective date of this act, notwithstanding the date of such conviction, shall submit a DNA sample to the department within 90 days of the effective date of this act or prior to release from custody, whichever first occurs. Any person currently on probation or parole as a result of a conviction or judicial determination resulting from a charge of any of the above listed offenses, notwithstanding of the date of such conviction or judicial determination, shall submit a DNA sample to the department within 90 days of the effective date of this act.

The Ammons case is old now, uut it is important. Discussed the timing of the request and the terms of probation.

Re: Seeking D.N.A. answers -- Answer #8

By the way, when you see a ? question mark,

it means "section."

For whatever reason, the computer changes the symbol for a section to a question mark.