Sunday, September 08, 2002

DNA & the Central Park Jogger Case

DNA Redux to the Fourth Power: Thoughts Inspired by -- but Not necessarily Faithful to the Facts and Recent Developments in the Central Park Jogger "Wilding" Case

Main Scenario: Three men -- A, B & C -- are charged with collaborating in the aggravated sexual assault -- the rape -- of Vila Victim.

Question 1: If a DNA test almost conclusively shows that the semen found in Vila Victim's vagina several hours after the rape was not either A's, B's or C's, does this test show that A, B & C are not guilty of the crime charged?

Question 2: Is the analysis of Question 1 influenced by whether A, B & C can be held guilty of the crime charged -- collaboration in aggravated sexual assault (assume for now = "collaboration in rape") -- only if one of the three -- A, B or C -- raped Vila Victim?

Question 3: If the criminal liability of A, B & C requires a finding that at least one of the three defendants -- A, B or C -- must have raped Vila Victim, does it follow the DNA test in the Main Scenario (above) proves that A, B and C are not guilty of the crime charged?

Question 4: If your answer to Question 3 is yes, would your answer remain the same if you knew that the source of the supposedly exculpatory DNA is semen that was recovered from Vila Victim's vagina 24 hours after the possible rape of Vila Victim by A, B or C?

Question 5: If your answer to Question 4 is yes, would you be tempted to change your answer if the DNA test shows that it is very probable that (i) D was the source of the semen found in Vila Victim's vagina, (ii) D was Vila Victim's close male companion, and (iii) Vila Victim went home to her apartment immediately after her possible rape and spoke on the telephone with D?

Question 6: Revert to the following assumptions: (i) if A, B, and C are to be found criminally liable, one of them must have raped Vila Victim and (ii) semen is extracted from Vila Victim's vagina shortly after the (possible) rape, and (iii) a DNA test shows that the source of this semen is not A, B or C, but, rather, D, a close male companion of Vila Victim. Under these circumstances are we compelled to conclude that A, B & C are not guilty of the crime charged? Does the answer to the last question depend on whether the extraction of semen from a vagina necessarily or very probably leads to the extraction of all kinds of semen present in a vagina?

Question 7: Does the answer to Question 6 also depend on whether ejaculation and the ejection of sperm are necessary for the commission of the crime of "rape"? (But would we want to know whether extraction of fluids from a vagina by medical personnel will necessarily or very probably extract all foreign bodily fluids, skin particles, cells etc. and would we want to know whether penetration of a vagina by a penis necessarily or ordinarily leaves traces of such foreign substances even in the absence of ejaculation? {Forgive me for using this sort of language. But to pose some questions, I cannot avoid using such language.})

Question 8: Further consideration of the effect of substantive law: Does the analysis of the effect of the DNA evidence on the liability of A, B, and C depend on whether "aggravated sexual assault" can be committed without "penetration"?

The Moral of this Story: Even if we assume that DNA technology and laboratory procedures have improved so much that when a DNA test shows a "match" or "exclusion" we are effectively compelled to conclude, respectively, (i) that two samples containing DNA have a common source or (ii) that two such samples do not have a common source -- even if we assume that DNA evidence and laboratory procedures have gotten this good, the probative force of DNA evidence on a question such as criminal guilt or innocence always depends on a swarm of surrounding assumptions, evidence, and facts. Bottom line: DNA by itself never establishes a proposition such as "guilty" or "innocent."

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