Duke Lacrosse
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Sorry to go of the topic of fly fishing, but I am curious to hear what the lawyers (and everyone else) have to say about this whole Duke lacrosse rape scandal.
I had initially heard that the DNA samples were taken unlawfully, but after reading more stories I think that was just a rumor.
The Box –
You can’t unwillingly be made to give bodily fluid for a test (though there are harsh penalties if you don’t), so if there has been a DNA test, you can bet the DNA sample was taken one of two ways 1) with permission or 2) from fluids left outside the body.
I agree. The DNA thing I am pretty sure was just a premature rumor, they got voluntary samples from 46 of the 47 players, if I’m not mistaken. And the bottom line is that just drinking and hiring a stripper was enough to get them suspended and probably a lot more. If I did either one of those in college I would have lost my scholarship and been kicked out. But what I was saying is that they are pretty much being strung up already by the Duke professors, alumni, students, the district attorney, the community, and obviously the media. They practically have a lynch mob going after them. Again, I’m not saying that they are innocent, but it’s just interesting to see how strongly people believe that they are guilty when there isn’t that much evidence proving or even suggesting it. You could get that much evidence from any party with a bunch of drunk guys who hired a stripper. The DNA tests haven’t even come back yet. And there is probably more facts that we don’t know about.
You can’t unwillingly be made to give bodily fluid for a test
Sure you can. Defendants get forced to produce blood for DNA or blood alcohol tests all the time.
The Fifth Amendment privilege against self-incrimination only applies to evidence of a communicative nature. Blood or bodily fluids are not “testimony” protected by the self-incrimination clause.
Of course, compelling a person to give bodily fluid is still a “search” or “seizure” under the Fourth Amendment, which means that police typically need a warrant before they force someone to produce a DNA sample. On the other hand, in DUI cases, police often don’t even get a warrant prior to forcing a defendant to provide blood – they instead rely on the “exigent circumstances” theory to justify the warrantless search (i.e., they delay of getting a warrant would keep them from getting an accurate reading, in light of the diminishment of blood alcohol over time).
The principle of compelled production of bodily fluids has been upheld by the USSC in Schmerber v. California, and in Tennessee by State v. Jordan.
Applying the law to the facts of this particular case, the victim’s statements provide plenty of evidence to establish probable cause for a warrant. I don’t know if the police forced the defendants to produce a DNA sample via a warrant, or if the defendants voluntarily complied, but if it was forced, I think it’s pretty certain to hold up in court.
bd
Edit:
in DUI cases, police often don’t even get a warrant prior to forcing a defendant to provide blood
My dos pesos….
In Georgia the law is known as Implied Consent. When you apply for…and receive a Georgia Driver’s license you are agreeing to submit to a blood or alcohol test if probable cause exists to the officer….that you are driving while intoxicated.
Just about every state has an implied consent statute, but that’s kind of a different kettle of fish.
Yeah, blame Steve Obermann for that; he gave us a great lecture in the Clinic on beating DUI convictions (not meant for public consumption, one would hope), and I specifically remember him saying you can’t be made to give blood; that must be in the implied consent context where the goal is to postpone the test until you’ve had more time to sober up. (That is, you can’t be made to give blood without a warrant.) I think Obermann was getting at forcing the police to get that warrant – his advice was; if you are being asked to blow into a breathalyzer the police already have probably cause to haul you downtown, so if you know you have been drinking you should decline the breathalyzer and go with them, then decline the blood test and force them to wake a judge and get a warrant to give you time to sober up. As I recall TN also has some kind of burden of proof switch when you do refuse the blood test even if they don’t get the warrant and force you to submit to it.
The exigency analysis is a new one to me. I wouldn’t think getting an ordinary DUI conviction would be sufficient to secure an exigency exception to the warrant requirement for the police and that if they forced a warrantless blood test in those circumstances it would get tossed. Did State v. Jordan deal with alcohol-related vehicular homicide, bd? I could see the need where a murderer might get off.
I had no idea we had so many lawyers on this board.
Zach
PS I always study before tests. *G*
PPS I had Dr. Aarons for Criminal Law, and sadly we stopped discussing criminal law and moved into social justice right about midway through kidnapping – his advice was ‘Don’t worry, Barbri will cover it.’ *sigh*
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