Michigan CSC Attorney - DNA Evidence Basics

AS WE ALL KNOW from popular TV shows like "CSI," DNA evidence can be the difference between guilt and innocence in any sex crime prosecution. In Michigan, the basic sex crimes that involve some form of sexual penetration or sexual contact are broken down into 4 "degrees": First Degree Criminal Sexual Conduct, MCL 750.520b ("CSC"), Second Degree Criminal Sexual Conduct, MCL 750.520c, Third Degree Criminal Sexual Conduct, MCL 750.520d, and Fourth Degree Criminal Sexual Conduct, MCL 750.520e. The word "rape" is a term hardly ever used anymore in Michigan's modern sex crimes laws (one exception being the Michigan Rape Shield Law, MCL 750.520j). The Michigan Criminal Sexual Conduct laws are broad enough to cover much more then what is typically referred to as "rape." In this article, Michigan Sex Crimes Defense Attorney Brian J. Prain uncovers the basics that those who are accused of Criminal Sexual Conduct need to know about DNA evidence. Each individual case involves unique issues, and if you are facing CSC charges in Michigan, you should call our office immediately for answers that are specific to your case.

Is DNA evidence taken in every CSC case?

No. Assuming that the alleged victim consents, or a Search Warrant is authorized, police can attempt to collect DNA evidence. However, there are some situations where there is obviously no likelihood that DNA evidence will exist. For example, imagine the case of a woman who claims that her doctor inappropriately touched her breast during an examination. The alleged inappropriate touching happened over a year ago. The doctor is charged with Criminal Sexual Conduct in the 4th Degree. He denies ever touching her breast. If her accusation were true, there may have been a time when skin cells containing the doctor's DNA were present on her breast or on her clothing. But it doesn't take a scientist to figure out that after even a day of normal bathing or laundering the clothing, any chance of the presence of his DNA is virtually nonexistent. In cases like this, we do not expect that there will be DNA evidence. On the other hand, in the case of a woman who alleges that a man forcibly raped her and ejaculated inside of her the previous night, and she has not bathed yet, we would expect a full "rape kit" to be performed at a hospital. We will explain below what a "rape kit" means. In short, DNA evidence may be taken in cases where we might reasonably expect that DNA was transferred to the body of the accuser, clothing, or another object, and that it would still present.

What types of body parts or body fluids can leave DNA evidence?

Every cell in the human body has a nucleus which contains the entire DNA profile of a human being, with the exception of "gametes," which are reproductive cells. DNA evidence in a CSC case can be obtained from semen, blood, sweat, saliva, skin cells, Vaginal fluid, and even urine. The strength of the DNA profile and how well it will hold up in court is better for some substances than others because of the different testing methods.

What are some examples of circumstances where DNA evidence has been found?

Anytime a person touches an object or another person, there is a potential for the transfer of cells containing DNA. Here are some circumstances that could lead to Criminal Sexual Conduct charges that are likely candidates for leaving DNA evidence (some of these may surprise you):

sexual penetration without a condom and with ejaculation
sexual penetration without a condom and without ejaculation
digital penetration, depending on the circumstances
oral sex (leaving saliva on or around the genitals of the alleged victim)
placing one's mouth on any part of the alleged victims' body
placing one's mouth on the alleged victims clothing (transferring saliva in the same way)

There is an endless list of possibilities, but those are some of the most likely. The bottom line is, anytime there is a transfer of cells onto or inside of a person or object, there is the potential for DNA evidence to arise. The question is: How likely it is that an adequate DNA sample can be obtained in a Criminal Sexual Conduct case, considering things like the passage of time?

How will I know if there is DNA evidence against me in my Criminal Sexual Conduct case?

Your Criminal Sexual Conduct Defense Lawyer will obtain this evidence through a legal process called "discovery." Over the decades, the US Constitution and it's Due Process Clauses have been interpreted by our courts to require that you have the right to see any evidence that the prosecution intends to use against you, as well as any evidence that is helpful to your defense. If DNA evidence is sought by the investigating police agency, one can conclude that it's because they believe there is some likelihood that it may actually be present. If it comes back matching your DNA, then the prosecution will surely seek to introduce it against you. In that case, you would be entitled to the evidence under the Michigan criminal discovery rules. If your DNA is not found, then your CSC defense attorney should argue that that fact is "exculpatory" (or tending to show innocence), and you are likewise entitled to that evidence in the event you wish to present it in your own defense. This may require filing a special Motion.

If police decide that they're going to collect DNA evidence, how do they collect it?

Michigan has a standard procedure for collecting DNA in CSC cases. By law , the Michigan State Police provide DNA evidence collection kits to healthcare institutions called Sexual Assault Kits. These kids include swabs, test tubes, slides, and envelopes for storage of the samples. A person claiming to be the victim of a Criminal Sexual Conduct is directed to go to a healthcare institution where they have a person called a "Sexual Assault Nurse Examiner," or "SANE nurse" for short. The examination begins with a set of standard questions. Throughout the examination, the SANE nurse fills out a standard 10-page form which includes diagrams of private parts and other things. In addition to collecting blood samples, urine samples, hair samples, and even the alleged victim's clothing and underwear, the examiner does a series of swabs on their body with Q-tips. In the case of a woman for example, they will take swabs of the inside of the vagina, the labia majora, the labia minora, the anus, the breasts, the mouth, and any other areas where she claims to have been affected by the alleged assault. The swabs are placed inside envelopes and labeled. All of the envelopes and samples are placed inside of a larger package which is returned to the investigating police agency. From there, The swabs go to the Michigan State Police Forensic Crime Lab in Northville Michigan, while the fluid samples go to the lab in Lansing. Any cells containing DNA in any of those areas will generally be picked up by the swabs and can be compared to other sample profiles to see if they match yours or potentially even someone else's who's involvement was not known.

How do they get my DNA to compare the samples from the alleged victim to?

There are a few different ways that your DNA can end up in the hands of law enforcement for comparison with a sample taken from an alleged victim or alleged CSC crime scene. FIRST, if you have been convicted of certain crimes in the past and have given a DNA sample before, your DNA will already be in the Combined DNA Index System, or CODIS. CODIS is run by the FBI. Each State has enacted a law whereby they agree to send DNA samples collected in the course of criminal investigations to the FBI so that it can be put into CODIS, where it is kept indefinitely. This national database can compare an unknown sample collected from an alleged victims body, clothing, or crime scene to the database of over 12 million samples and growing. SECOND, the police may take a DNA sample as part of their Criminal Sexual Conduct investigation against you. This is most often done by taking a "buccal swab," which is a Q-tip type of swab swiped inside of your cheek. The buccal swab can then be sent to the Forensic Crime Lab in Northville for comparison with an unknown sample from the alleged victims body, clothing, or the crime scene in the very same way that a comparison is done if your DNA were already in CODIS. In July 2015, Michigan expanded its law defining who has to give a DNA sample to law-enforcement. The DNA Identification Profiling System Act, MCL 28.176, now states that any person arrested for a felony or attempted felony must give a DNA sample right then and there. Read it again: "arrested," not just convicted. So the bottom line is, if a police investigation reaches the point where you are actually arrested for suspicion of Criminal Sexual Conduct, they're going to have your DNA - period. Refusing to give a sample is a criminal misdemeanor offense in and of itself, and the police can obtain a Warrant anyway if you refuse. FINALLY, if The police investigation against you played out in some fashion where they either purposely or negligently failed to take your DNA sample upon arrest, then if there is enough evidence, law-enforcement can always obtain a Warrant for your DNA at any time while the investigation or court case is pending. One reason that your DNA sample may not be taken when you are arrested for CSC is that you may already be in the CODIS System for one reason or another. For example, we have had clients whose DNA was never taken at the time of their arrest, but nevertheless a sample taken from the alleged victims body showed up as a "match" to their profile in CODIS. Where this is the case, the Michigan State Police will direct the local investigating police agency to seek a Warrant for a known sample of your DNA so that they can confirm the match. The fact that you came up as a match in CODIS will give them the necessary probable cause to get the Warrant, but it is more than likely insufficient on it's own to be presented in court without the confirmatory test (but a good Criminal Defense Attorney can debunk the evidence in a well-prepared cross-examination).

How do they determine if there is a DNA match?

As you might guess, that's an extremely complicated question- way too complicated to fully answer here. But the bottom-line of how it works can actually be explained quite simply. When the Michigan State Police Forensic Crime Lab receives a sample of a body substance containing human DNA, they begin with the process of "extraction." This extraction process separates the human DNA molecules from the rest of the skin cells or semen or whatever the substance is. Over 99% of the human DNA strand is identical from one person to the next. It is only a tiny fraction of our entire DNA strand that gives us our unique features. DNA testing at the lab involves looking specifically at those areas that are different from person to person. At these locations on the DNA strand, different people will have different numbers of "short tandem repeats," or "STRs." Simply put, these are patterns of chemicals that repeat a different number of times in a row from one person to the next. Once the DNA is extracted, the target portion is copied millions of times. They actually manufacture millions of copies of your DNA in the lab. The Michigan State Police Forensic Crime Lab uses a process called "polymerase chain reaction," or "PCR" to do this. Using the PCR method, your DNA is placed inside of a chemical along with some things called "primers" and free-roaming "nucleotides." The entire mixture is heated up in a device called a "thermal cycler." It is heated up and cooled down multiple times over the course of several hours. The heating process causes the DNA strand (which looks like a ladder, as in the picture above) to "unzip." The cooling process causes the primers and free nucleotides to "magnetize" with the unzipped half-strands so that they now have two copies of the target portion of your DNA strand. Then, the entire mixture is heated up again, when the entire process repeats itself. Repeated many times over the course of just hours, the amount of your target DNA that can be used for testing multiplies exponentially to reach over 1 billion copies. Remember how we are interested in those certain target areas of the DNA strand that were copied billions of times? At each one of those target areas, every person has two "alleles" (one from Mom and one from Dad). Each of the two alleles has a certain number of STRs, and they are written-down in pairs like this: (13, 16). Because a Forensic Crime Lab looks at about 13 different target locations on the DNA strand, there will be 13 pairs of two (14 is the number of target areas recommended for testing by the FBI, but one of them, called "amelogenin," only determines gender). If those 13 pairs of numbers match a profile in CODIS or a known sample, then the person is included as a possible match. If one or more do not match, the person is excluded as a possible match. A number of scenarios can also lead to an "inconclusive" result.

As you can see, if you are facing Criminal Sexual Conduct Charges in Michigan, DNA evidence has the potential to become a big part of your case. It may even dictate the theory of your defense. If they find your DNA in a certain place, unless that conclusion can be attacked, you may have to build your defense around that fact. Does your Criminal Defense Attorney know the ins and outs of DNA evidence, or are they clueless like most attorneys? Want answers to reduce your anxiety? Call a Criminal Sexual Conduct Attorney at (248) 731-4543.