“The DNA Test Mechanism: An Analysis, Explanation, and Reaching an Understanding,” by Andrew J. Schatkin

“The DNA Test Mechanism: An Analysis, Explanation, and Reaching an Understanding,” by Andrew J. Schatkin

My dear friends, readers, thinkers and fellow discerners. I propose in this essay to take a close analytic look at the DNA test and its operation and as a mechanism.

Deoxyribonucleic Acid, or DNA, is a substance found in the organism of living cells. It consists of chromosomes within the nucleus and provides the genetic code which determines a person’s individual characteristics. DNA testing has been approved in the State of New York in both civil and criminal cases and in both the State and Federal Courts. (See Matter of SLB v. KA aka KD; Matter of LI v. ETR; Matter of SLB aka KD; People v. Castro; People v. Wesley).

The statutory mechanism whereby the state trial court can order a DNA test upon motion of the people is found in CPL 240.40 2. That section states that upon motion of the prosecutor, the court in which an indictment, superior court information, prosecutor’s information, or simply an information charging a misdemeanor is pending, the defendant may be ordered to provide nontestimonial evidence and that the order may, among other things, require the defendant to have samples of blood, hair, or other materials taken from his body in a manner not involving an unreasonable intrusion thereof or a risk of serious physical injury thereto.

It is clear in this section that the court in its discretion may order upon application of the prosecutor the DNA test. It should be noted that this has long been the law under Schmerber v. California that the defendant has no right under these circumstances to assert a fifth amendment privilege. It is also clear under this statutory section that the section is discretionary.

The question arises then and it is of interest to bench and bar as to whether there any limits, criteria, or guidance with respect to the exercise of that discretion. The leading case is Matter of Abe A. In Abe, the people with reference to a suspect sought in a homicide investigation that Abe be compelled, pursuant to court order, to supply the People with a blood sample for scientific analysis. The court held that the people must establish probable cause to believe the suspect has committed the crime; a clear indication that relevant and material evidence will be found; that the method used to secure the sample must be safe and reliable; imposes no undue physical discomfort than is reasonably necessary; and that when the body is invaded, the procedure should be carried out by a qualified physician in accordance with accepted medical standards. The court further stated that the court must consider if there are alternative means or methods for obtaining the evidence. Applying these rules and criteria, the Court of Appeals reversed the order of the trial court in New York County, holding the respondent in contempt of court for failure to comply with a prior order directing the taking of blood samples from his body, thus allowing the blood testing of the suspect.

The criteria and rules for allowing the taking the taking of a DNA test at the behest of the prosecutor has since been allowed by the lower courts of this state. (See People v. Handley and Matter of David M. v. Dwyer). It is clear that upon application should the people propose a DNA test, they must be put to the burden to establish the criteria and requirements of Abe A. and the cases following it.

Of course, the outcome of a DNA test is always problematic and presents a risk both to the prosecutor and to defense counsel. Nevertheless, it is most wise for the defense to oppose the test and insist on the total fulfillment of the criteria laid in in Abe A. In this way, a potentially disastrous scientific result may be possibly avoided or help the defense to be victorious.

The citations to the cases cited here may be found from pp. 310 and 311 of my book “Select Legal Topics.” The essay is taken from that book, with alterations and modifications, which was published in 2011 by the University Press of America.