THE TWIN PROBLEM WITH DNA TESTING

This January thieves made off with over a million dollars of jewelry from a store in Berlin, Germany which happens to be one of the most luxurious department stores in the world. While the miscreants were able to avoid triggering the store’s sophisticated security system, they left behind a critical piece of evidence - a glove. The glove contained DNA material. Recently, the German authorities arrested a suspect with matching DNA characteristics.

There is a rub, however, the suspect has a twin brother. While the most advanced DNA test can distinguish DNA patterns between identical twins, Germany’s rules of criminal procedure will not allow the more advanced test result.

This scientific problem can create a whipsaw defense, where the suspect can claim that his brother was the real culprit. In short, there is a 50/50 chance that the cops got the wrong guy. Is that enough to convict? I doubt it.

RETRACTING A PLEA IN NEW JERSEY

If you think you can change your mind after you have pled guilty to a crime, think twice, and that is especially so, if you have been sentenced because in the words of a recent New Jersey Supreme Court case, you have a “formidable barrier.”

For years, a defendant’s decision to retract a guilty plea has caused confusion and sometimes chaos in the courtroom. This new decision seems to fix a bright line to a just result for this knotting problem. The new analysis is based on four separate factors. They are:
• the existence of a “colorable” claim of innocence.
• the reason for the defendant’s request to retract the plea.
• whether the plea was the result of a plea agreement.
• whether the retraction will result in an unfair advantage to the defendant or an unfair disadvantage to the accused.
The list is not magical, however. A failure of one element does not necessarily spell defeat. All factors must be considered and delicately balanced. As always, the decision will ultimately repose in the discretion of the trial court which is another interesting issue that we can get to on another occasion.

THE FRAILTIES OF EYE-WITNESS TESTIMONY

Two weeks ago, the New York Bar Association presented a report that examined 53 cases where criminal convictions were overturned. In some of those cases, the accused had spend decades in prison for, among other things, murder, rape and other serious crimes. The study concluded that the major causes of these improvident convictions were human error, including false testimony, mishandling of evidence, coerced confessions, illicit law enforcement conduct. Most importantly, in 36 cases, it was found that the accused was convicted of faulty eye-witness identification.

In the next week or two, I will be posting on my website an article relating to the frailties associated with eye-witness testimony and the movement to fix the problem.

SOCIAL NETWORKING AND THE CRIMINAL JUSTICE SYSTEM

From time to time I have explained on this site that the government will use information posted on social network sites like Facebook and MySpace to obtain information to assist in investigating criminal conduct or in prosecuting a criminal case.

Recently, I read about a controversy brooding in Italy, where Sicilian authorities began investigating Facebook discussion groups glorifying high-ranking Mafia figures and offering enlistment into the criminal organization. Italy authorities are interested in identifying these pro-mafia internet groups to determine if they are simply goofing adolescents or criminals seeking to send coded messages to one another. Unfortunately, for the government, these groups seem to disappear from the internet at the most opportune moments.

A spokesperson for Facebook said that while the company could not voluntarily disclose the identity of the members subject of the Italian government’s investigation, it may be required to disclose that information, if subpoenaed or ordered by a court. Ostensibly, the identity of members of these pro-mafia groups are a mere signature away from disclosure.

The Pitfalls of Social Networking in Criminal Investigations and Prosecutions

For quite sometime, we have been advising our clients who are subject of criminal investigations or prosecutions to remove and/or censor information they may have posted on social network sites, e.g. Facebook, Myspace, etc. There are many instances where government will review content on these sites to collect information to further enhance its investigation or its prosecution.

Recently, I read about two cases "downunder" where law enforcement agents used information in Facebook to apprehend criminals. In one instance in New Zealand, a security camera captured a criminal attempting to break into a safe at a local pub. After the event, the police department posted the surveillance photographs on its Facebook page. Within 24 hours, the subject was arrested because viewers of the website readily identified his image. In antoher case, five customers "dined-and- dashed" on a check at an expensive restaurant. Thereafter, the owner remembered that one of the diner's asked about a former waitress. The waitress suggested that the owner search her Facebook list to determine if the criminal could be identified. He was and an arrest followed.

The lessons from these cases are clear. While social networking can be an exciting opportunity to maintain contact with friends and family and to develop new relationships, there is a dangerous downside.

For more information on similar issues visit www.ftlucianolaw.com