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                            LexisNexisª Academic

           Copyright (c) 2001 The American University Law Review
                          The American University

                                April, 2001

                            50 Am. U.L. Rev. 979

LENGTH: 23504 words

COMMENT: BEYOND FINGERPRINTING: INDICTING DNA THREATENS CRIMINAL DEFENDANTS'
CONSTITUTIONAL AND STATUTORY RIGHTS

Andrew C. Bernasconi*


* Associate Managing Editor, American University Law Review; J.D. Candidate,
May 2002, American University, Washington College of Law; B.A., 1997,
Dartmouth College. I would like to thank my father, Charles Bernasconi, and
my sisters, Karen and Nancy, for their constant support and encouragement in
all endeavors. I would also like to thank my student editor, Kevin Willen,
for his patient advice and suggestions. Finally, I would like to dedicate
this Comment to my mother, Carol Bernasconi, whose loving memory continues
to provide me with the motivation to "seize the day."

SUMMARY:
... Additionally, the nature of DNA indictments reflects the probability
that prosecutors will arrest and charge defendants many years removed from
the commission of the alleged crime, potentially in violation of defendants'
constitutional right to a speedy trial. ... B. Rationale Supporting the
Statutes of Limitation ... Until that time, the Court had considered only
three cases directly addressing the constitutional right to a speedy trial.
The legal protections afforded to defendants remained so slight that in
1975, Congress deemed it necessary to codify a statutory version of the
speedy trial guarantee to give force to the constitutional right. ... With
the precedent in apparent conflict, the Court took the opportunity to
clarify its speedy trial doctrine in Barker v. Wingo in 1972. Barker
involved a defendant's appeal from a murder conviction on speedy trial
grounds after sixteen postponements of his trial date throughout the five
years following his arrest. Notably, however, Barker did not object to the
first eleven continuances, and only asserted his speedy trial right on the
day his trial began in 1963. ... In the speedy trial cases the Court has
adjudicated under a Barker analysis, it has concentrated on issues such as
the government's intentional or negligent "lethargy" and the defendant's
stall tactics. ...

TEXT:
 [*980]

Introduction

In September 2000, California police arrested Paul Eugene Robinson and
charged him with committing a series of sexual assaults in Sacramento in
1994. n1 Despite the horrific nature of the crimes alleged, n2 the arrest
unsettled civil libertarians because it marked the first time police
officers arrested a person based solely on the suspect's genetic profile,
rather than a name. n3 At the time of the indictment, the police had not
determined the accused individual's name n4 and instead resigned themselves
to seeking a "John Doe" warrant. n5 In Robinson's case, the prosecutor filed
charges only one  [*981]  day n6 before the statute of limitations would
have barred any prosecution for the 1994 sexual assaults. n7 In a case that
likely will have a substantial impact on criminal procedure, n8 the
prosecutor in Robinson's case sparked a debate over the constitutionality of
indicting suspects' genetic material to avoid the restrictions imposed on
prosecutors by statutes of limitations. n9

Although Robinson's case n10 marks the first time the police have arrested
an unnamed and unknown suspect based only on a deoxyribonucleic acid (DNA)
description, n11 prosecutors in at least nine states have filed charges
against or indicted "John Doe" suspects  [*982]  by relying exclusively on
the suspects' genetic make-up. n12 The practice of charging or indicting DNA
evidence in lieu of charging an identity - hereinafter referred to as "DNA
indictment" - originated in Kansas. n13 There, in 1991, McPherson County
Assistant District Attorney Ty Kaufman indicted a DNA profile of a man who
committed several rapes, but police never caught him. n14 Theoretically, the
indictment remains in effect until investigators identify the perpetrator of
the rape, n15 notwithstanding a five-year statute of limitations in Kansas
for rape. n16

Prosecutors did not repeat the practice of DNA indictment until 1999. n17 On
September 1, 1999, Milwaukee County Assistant District Attorney Norman Gahn
used a DNA indictment to preserve sexual assault and kidnapping charges for
a case in which the statute of limitations threatened to preclude further
prosecution. n18 At the time  [*983]  he filed the charges, Gahn promised
additional DNA indictments would be forthcoming. n19 Gahn lived up to his
promise and by December 1999, he had used DNA indictments to obtain arrest
warrants against two more suspects accused of sexual crimes. n20 The
repeated invocation of the DNA indictment process by Gahn, a nationally
recognized expert in DNA evidence, n21 inspired other states to employ the
same procedure. n22

Prosecutors like Gahn have stated explicitly that by seeking DNA indictments
against "John Doe" defendants, rather than waiting and filing charges
against suspects known by name, they intend to prevent the relevant statutes
of limitations from barring prosecution when and if investigators later
identify the suspects. n23 Although this approach is certainly a novel
application of scientific and legal principles, n24 the process of charging
genetic material without identifying the suspect raises significant legal
questions about whether DNA indictments adversely affect a defendant's
chances of receiving a fair trial. n25

DNA indictments trigger further concerns about defendants' rights upon
considering the novelty of DNA evidence n26 and its potential for  [*984]
inaccuracy n27 relative to fingerprint evidence. Because prosecutors
generally do not file "fingerprint indictments," n28 the practice of
indicting evidence of inferior accuracy, i.e., DNA, at least suggests the
possibility of misguided prosecutions. Additionally, the nature of DNA
indictments reflects the probability that prosecutors will arrest and charge
defendants many years removed from the commission of the alleged crime, n29
potentially in violation of defendants' constitutional right to a speedy
trial. n30

Part I of this Comment provides an overview of the scientific and
technological procedures that allow investigators to identify suspects on
the basis of their genetic profiles. Part II discusses the evolution of
statutes of limitations, including the purposes and policies giving rise to
legislative limitations. n31 Part II also examines the practice of DNA
indictment against this historical background, concluding that DNA
indictment does not comport with the reasons asserted for the existence of
these legislative enactments. Part III provides an analysis of the use of
fingerprints in criminal investigations. Part III then explores whether DNA
evidence is sufficiently superior to fingerprinting to justify "John Doe"
indictments, comparing and contrasting the use of fingerprints to that of
DNA evidence in criminal trials. Part IV of this Comment provides a brief
primer on the history of the Sixth Amendment right to a speedy trial,
 [*985]  questioning the constitutionality of DNA indictment against the
backdrop of the Supreme Court's interpretation of the right. n32 Part IV
argues prosecutors' use of this practice raises serious, and perhaps
constitutionally fatal, questions about DNA indictments' legitimacy. Part V
concludes by providing recommendations to ensure the protection of criminal
defendants' constitutional and statutory rights in the event the courts
uphold the validity of DNA indictments.

I. The Forensic Use of DNA: Historical Development of DNA's Use in Criminal
Investigations

A brief guide to some of the technical and scientific prerequisites
surrounding DNA analysis will prove helpful in providing a legal analysis to
DNA indictment. Initially, a rapist or perpetrator of a sexual crime n33
must leave behind - generally at the crime scene - a sample of DNA that a
trained technician will be able to recover and ultimately analyze. n34 This
requirement does not present a high hurdle as, inevitably, virtually all
perpetrators of sexual crimes leave behind DNA samples. n35 Because DNA
resides in virtually every cell in the body, n36 the biological sample left
by the sexual offender can be in the form of hair, skin, blood, urine, or
saliva, n37 i.e., it need not be in  [*986]  the form of sperm. n38 Whether
a proper search for the DNA takes place, however, is an entirely different
question. n39

Assuming DNA is collected, a DNA indictment presumes the biological sample
recovered from the crime scene ultimately will match the sample of a person
with a known identity, thereby revealing the identity of the assailant. n40
To give effect to DNA typing, the Federal Bureau of Investigation (FBI)
initiated a pilot project in 1990 called the Combined DNA Index System
(CODIS). n41 Law enforcement officials gather and enter DNA samples into the
CODIS database and its progeny, n42 pursuant to a legislative mandate, after
courts convict defendants for violating specified statutes. n43 These
software-based database systems allow law enforcement officials to compare a
DNA sample, regardless of whether the identity of the sample is known, with
every sample entered in the database. n44 An  [*987]  unstated premise
behind the database regime, of course, recognizes that people who commit
certain statutorily prescribed crimes will re-offend. n45

DNA is the chemical substance, located in virtually every human cell, n46
that carries an individual's genetic code. n47 In 1984, a scientist
developed a method of using DNA as an effective means of personal
identification, naming the process "DNA fingerprinting." n48 The methodology
of DNA fingerprinting originally employed a process known as Restriction
Fragment Length Polymorphism (RFLP) n49 but has since also used another
process named Polymerase Chain Reaction (PCR). n50 Although PCR analysis
offers the benefit of producing potentially conclusive results from a DNA
sample of  [*988]  limited quality and quantity, n51 the RFLP analysis is
more powerful in discriminating between samples and thus more reliable in
accurately identifying a sample's source. n52 Together, RFLP and PCR
analysis provide the underlying framework for the identification of criminal
suspects based on their DNA. n53

The use of DNA evidence in criminal investigations has emerged as one of the
most revolutionary and useful tools available to police officers. n54 Law
enforcement officials first applied DNA technology to the criminal realm in
England by profiling DNA samples to identify a suspect in two unsolved
murders. n55 Since that time, the FBI, most states, and even many counties
and cities have developed their own forensic DNA laboratories in the United
States. n56 The technology is particularly attractive to investigators and
prosecutors because DNA test results are accurate and provide juries with
virtually incontrovertible evidence linking a criminal defendant to a crime
scene. n57 In fact, the American public perceives DNA test results as so
conclusive that the National Research Council's expert commission on DNA
evidence n58 found it necessary to caution courts against allowing jurors to
draw unfairly prejudicial inferences from the  [*989]  evidence. n59

DNA's significance to this Comment is its durability. n60 DNA is useful to
prosecutors who practice DNA indictment because they can store the sample in
the hopes of subsequently determining the identity of the sample's source.
n61 With respect to the purpose for the statute of limitations, then, this
practice begs the question: Has the "genius of our laws" n62 become
subservient to the genius of our scientific and technological advances?

Following the lead of the federal government, all fifty states now have
similar DNA databases. n63 As a condition of federal funding for these
databases, the states must collect samples from offenders convicted of
sex-related felonies. n64 In 1998, the FBI introduced the National DNA Index
System (NDIS), which allows law enforcement agencies at all levels of
government to contribute samples to the national database n65 and thereby
increase the odds of initiating a "cold hit." n66

 [*990]

II. Historical and Modern Application of Statutes of Limitations

In the criminal context, n67 statutes of limitations set time limits beyond
which prosecutors may not pursue a case. n68 Such statutes balance the
competing policy interests of allowing valid claims and precluding stale
claims. n69 Even though the advances in DNA technology mark tremendous
scientific achievements, they also prompt significant legal questions. n70
Specifically, while the constitutionality of DNA indictments awaits
adjudication in the courts, the historical purpose, rationale, and judicial
application of statutes of limitations reveal such indictments possess
limited validity and legitimacy. n71

A. Historical Development of Statutes of Limitations

Protocols time-barring the prosecution of crimes have a long history in the
United States. n72 Although statutes of limitations  [*991]  addressing real
property issues may be traced to ancient Greece, n73 most legislative
limitations as we know them today derive from early English laws governing
civil property claims. n74 The invocation of statutes of limitations
gradually became more popular in England, n75 and by the beginning of the
seventeenth century, King James I found it necessary to codify a new statute
n76 to allow expansion of the use of limitations. n77

The first statutory limiting actions in the American colonies descended
directly from these early English enactments. n78 These  [*992]  early
limiting statutes applied only to civil claims n79 and proved very popular.
n80 Shortly after the American Revolution, the States began enacting
statutes limiting the time available for pursuit of criminal prosecutions.
n81 Today, all but two states n82 have criminal time limitation periods. n83
Though the respective state legislatures create and control these statutes,
n84 the language of the statutes tends to be similar and unambiguous. n85

The federal government followed the colonies' lead and during the second
session of the First Congress, the representatives included a time
limitation within a statute defining penalties for treason and  [*993]
other capital crimes. n86 Although Congress extended the statute's breadth
in 1876 n87 and thereafter modified this limiting statute periodically, n88
the statute remains in effect today. n89 Moreover, Congress has indicated
its legislative preference for limiting actions by codifying statutory
limitations for a wide variety of actions. n90

All time-limiting actions remain subject to modification by the will of the
relevant legislating body. n91 State legislatures and the U.S. Congress
explicitly make modifications when they decide to change the limitation
periods. n92 Although courts have some discretion in applying statutes of
limitations under the tolling doctrine, n93 their  [*994]  authority in this
respect is limited. n94

B. Rationale Supporting the Statutes of Limitation

Little consensus exists on the purposes compelling the creation of civil
statutes of limitations. n95 The historical purpose of criminal statutes of
limitations, however, remains the same today n96 as when first employed: to
promote repose. n97 Although the definition of this legal  [*995]  term
varies in scope and language, n98 statutory limitations ultimately preserve
a defendant's right to assemble evidence and prepare a vigorous defense. n99
Although the first English limiting statutes were designed to quiet estates,
n100 American commentators define domestic statutes in terms more relevant
to a modern context. n101

Most importantly, the statutes protect defendants from an unfair trial by
militating against prejudice caused by deterioration of evidence. n102 This
policy is premised, at least partially, on the theory that evidence
inherently degenerates with the passage of time. n103  [*996]  Similarly,
because the interests of a criminal defendant supersede those of a civil
counterpart, n104 criminal statutes of limitations are shorter in duration
than civil statutes. n105 As a further protection for defendants,
legislatures intended the statutes to reach only the explicit circumstances
contemplated within the statute's language, i.e., they did not provide
courts carte blanche to extend their application as individual judges saw
fit. n106

C. Judicial Interpretation of the Statute of Limitations

Despite the popularity of statutes of limitations with society in general,
n107 these legislative initiatives were not immediately popular  [*997]
with American courts. n108 In this respect, the American experience once
again mirrored the historical development of the statutes in England. n109

Over time, however, judicial attitudes shifted dramatically. In 1805, the
Supreme Court of the United States declared it would be unfair and illogical
to allow a criminal prosecution after the statutory period elapsed. n110 By
1879, the Court had acknowledged the importance of limiting actions to
civilized society. n111 The Court indicated that the true value of the
limitation periods rests in their ability to protect defendants from "stale
demands" n112 that could prejudice the defendant because of fading memories
or an inability to summon witnesses. n113 Up to contemporary times, the
Court consistently has recognized the value of these limitations in
promoting repose and protecting suspects from the potential jeopardy of
defending against stale claims. n114 In emphasizing the importance of
protecting  [*998]  defendants from stale claims, the Court explicitly has
acknowledged that limiting statutes will extinguish otherwise valid claims.
n115

D. Statute of Limitations Issues Implicated by DNA Indictment

At first glance, the accuracy and durability of DNA evidence collected from
the scene of a rape or other sexual crime appears to help solve America's
growing criminal problems. n116 Consideration of the issue beyond the
superficial surface, however, suggests this sense of security and confidence
is based on two potentially erroneous assumptions. First, the theory assumes
that a person whose DNA is collected from a crime scene participated in the
reported crime. Second, DNA evidence presumes that determining the identity
of the perpetrator constitutes the only, or alternatively the most
important, goal in a criminal investigation.

These assumptions are consistent with the "get tough on crime" mentality
engulfing the nation. n117 Ironically, courts initially were reluctant to
apply statutes of limitations despite their popularity with society. n118
Now, however, courts appear willing to apply these  [*999]  statutes n119 in
the face of society's objection. n120

By vindicating rape survivors' rights, DNA indictments bring at least a
modicum of comfort to those whose claims would otherwise be time-barred.
n121 Proponents hail DNA indictments for providing law enforcement more time
to investigate criminal offenses. n122 However, DNA indictments disregard
the very purpose for which statutes of limitations were enacted: to provide
repose and to preclude defendants from being held to answer stale charges so
outdated they presumptively impede defendants' abilities to marshal
potentially exculpatory evidence. n123 Indicting DNA to avoid the statute of
limitations directly contradicts the legislative policies that gave rise to
limiting actions. n124

The argument that rape survivors' interests should take precedence over
statutes of limitations posits that the accuracy of DNA typing outweighs any
potentially exculpatory evidence the defendant might  [*1000]  otherwise
procure for his defense. n125 This argument, while compelling if true,
tenuously draws on the inferences of too many assumptions to establish a
general principle. Independently, without corroborating testimony or
evidence, the presence of a person's DNA in a particular place indicates, at
best, the person was present in that place in the past. n126 The DNA, by
itself, does not indicate why, when, or how it arrived at the scene. n127

With this fact in mind, a DNA sample derived from semen found during a
victim's post-rape hospital examination n128 might be the most probative
type of forensic evidence for DNA analysis involving sexual crimes. Even
this evidence, however, is not dispositive with respect to the alleged
rapist's guilt. In such an instance, the issue of the victim's alleged
consent becomes paramount. n129 Even when the issue turns on consent, a
defendant certainly will find it more difficult to corroborate a legitimate
consent defense with witnesses and other evidence at a point fifteen years
n130 or more after the alleged rape. n131  [*1001]  Additional circumstances
exist whereby allowing DNA as probative evidence of a rape suspect's guilt
prejudices an otherwise innocent defendant, through misidentification n132
and improper handling of DNA evidence (leading to cross-contamination), n133
for example.

This summary of potential problems that inhere in the use of DNA evidence
long after the criminal conduct occurs is not intended to be exhaustive.
n134 Rather, it offers a brief overview of the conflict between the practice
of DNA indictment and the purpose of limiting actions to protect defendants
from answering charges prompted by stale evidence.

DNA remains an incredibly useful tool in solving crimes and resolving
questions of identity. However, the practice of indicting DNA substantially
conflicts with the historical development, n135 purpose, n136 and judicial
attitudes n137 toward modern statutes of  [*1002]  limitations. The better
solution remains for legislatures to modify their respective statutes of
limitations, n138 either by extending them within explicitly-drawn
parameters n139 or abolishing them altogether for rape and other sexual
crimes when investigators collect DNA evidence. n140 Such a solution would
settle lingering legal questions  [*1003]  over defendants' statutory rights
and preserve institutional integrity, instead of forcing prosecutors to find
a loophole through which to press what otherwise would constitute stale
charges. Furthermore, after legislative modification of statutes of
limitations, suspects defending charges so old that potential prejudice
remains would still retain the ability to invoke their Sixth Amendment
speedy trial right to dismiss the charges. n141 A comparison between DNA and
fingerprint evidence reveals that, aside from the potential prejudice
inherent in defending stale claims, DNA indictees might suffer further
prejudice both at the indictment and the trial stage, for which they might
require Sixth Amendment relief.

III. History and Development of Fingerprint Samples

From the time that Alec Jeffreys described his then-new DNA typing technique
as "DNA fingerprinting" in 1984, n142 the nomenclature stuck n143 and with
it follows the natural comparison with traditional fingerprint analysis.
Criminal investigators and prosecutors have come to recognize DNA as the
most accurate and effective investigative tool since the advent of
traditional fingerprint techniques. n144 Proponents of DNA indictments claim
DNA's ability to identify previously unknown suspects outweighs any
prejudice defendants might face due to the lapse of time between the crime
and the indictment, and thus justifies use of DNA indictments. n145

A comparison of the accuracy of DNA versus fingerprint evidence reveals that
this argument remains subject to attack on several grounds. The following
comparison outlines the benefits and inherent limitations of both types of
evidence, concluding prosecutors should employ the same restraint with cases
based on DNA evidence as they have shown with fingerprint evidence.

 [*1004]

A. Historical Use of Fingerprints as an Identification Technique

The use of traditional, or dermatoglyphic, n146 fingerprints to identify
people dates back over two thousand years to ancient times, when the Chinese
used thumbprints in lieu of signatures for legal documents and criminal
confessions. n147 The first recorded use of fingerprints as tools to
determine identification occurred in 1684, when Dr. Nehemiah Grew issued a
report to London's Royal Society describing the ridges and pores on the
hands and feet. n148 In 1788, J.C.A. Mayer became the first researcher to
announce that fingerprints are unique to each person, though his research
was not precise enough to allow the inference that fingerprints could always
distinguish one person from another. n149

Fingerprints' first foray into criminal justice occurred when a Scottish
doctor practicing in Japan used them to exonerate a man accused of burglary
by showing that the prints left at the crime scene did not belong to the
accused. n150 In 1897, a German researcher established the applicability of
dermatoglyphic prints to identification of criminal suspects by
demonstrating fingerprints do not change over time. n151 Shortly thereafter,
in 1899, Edward Henry published a book delineating a classification system
for taking and filing fingerprints in criminal investigations. n152 England
and Wales implemented the Henry classification system in 1901. n153 With
modifications by the FBI, law enforcement agencies in the United States
continue to use the Henry system today. n154

 [*1005]  In 1903, officials in the United States first used fingerprinting
in the criminal context to distinguish between two men at Leavenworth Prison
who looked alike and bore the same name. n155 Prison officials booking an
incoming inmate named Will West became confused when they recognized West's
name, physical features, and measurements, because the man West resembled
already was incarcerated at Leavenworth. n156 This scenario provided the
impetus for Leavenworth and prisons nationwide to adopt a system of
fingerprinting. n157 The following year the St. Louis, Missouri police
department officially adopted a fingerprint classification system to assist
in its crime-fighting endeavors. n158 Between 1905 and 1908, the U.S. Army,
Navy, and Marine Corps followed suit and adapted a fingerprint system to fit
their needs, while the federal government's acceptance of fingerprint
analysis culminated in 1908 when the precursor to the FBI implemented a
fingerprint identification system. n159

The increasing use by law enforcement agencies of dermatoglyphic analysis
invariably compelled criminal defendants to attack the validity of
fingerprints as evidence in criminal trials. The first reported case
involving a legal challenge to fingerprint evidence occurred in People v.
Jennings n160 in 1911. In upholding a murder conviction, the Jennings court
relied on "standard authorities on scientific subjects" n161 and found the
trial court properly admitted  [*1006]  fingerprint evidence. n162 Although
commentators have since criticized this decision for its shortsighted logic,
n163 Jennings paved the way for admission of fingerprint evidence
nationwide. n164

Bolstered by the Jennings decision, prosecutors successfully introduced
fingerprint evidence throughout the following decade in criminal trials in
New Jersey, n165 New York, n166 Nevada n167 and Texas. n168 By 1932, the
federal courts accepted the reliability of fingerprint evidence in
establishing a suspect's identity. n169 Today, forensic fingerprint analysis
has evolved to become one of the cornerstones of criminal investigations.
n170 Judges take judicial notice of the accuracy of fingerprinting rather
than requiring prosecutors to establish reliability of the process itself.
n171 Fingerprint evidence impacts criminal prosecution and trials to such an
extent that the courts subsequently invoked its success as the basis for
admitting other identification evidence - including DNA. n172 The question
remains,  [*1007]  however, whether the accuracy of DNA profiling, relative
to fingerprinting, justifies the use of DNA indictments.

B. Comparison between Dermatoglyphic and DNA Evidence

Researchers liken DNA to dermatoglyphic fingerprints because both provide a
highly individualistic sample. n173 The value of each to law enforcement
efforts thus far has been substantial. n174 The use of DNA analysis to
identify suspects is a procedure that, like fingerprinting, n175 will endure
for many years to come. n176 Thus, a comparison of DNA and fingerprint
analysis will facilitate an understanding of the issues implicated in the
subsequent discussion about the impact of DNA indictments on defendants'
abilities to receive a fair trial. n177

First, jurors often hold the misperception that DNA evidence possesses "an
aura of infallibility." n178 Jurors continue to improperly weigh DNA
evidence n179 even though fingerprint evidence remains, as  [*1008]  shown
below, the superior identification technique. n180 Because DNA profiling has
not reached a level of reliability comparable to that of fingerprinting,
n181 triers of fact unfairly draw inferences against a defendant based on
DNA evidence that might otherwise be warranted only by fingerprint analysis.
n182

Second, a direct correlation between the respective abilities of  [*1009]
fingerprint and DNA evidence to distinguish between possible sources proves
misleading. As a general rule, fingerprints are more conclusive and reliable
in establishing a link between a sample and a criminal suspect. n183
Researchers theoretically have the ability to obtain and analyze all of the
information fingerprints provide. n184 In direct contrast, however,
scientists examining DNA samples possess the capability to analyze only one
millionth of the three billion units of human DNA. n185 Though current DNA
analysis capabilities lead to conclusions about the source of a DNA sample,
n186 a great deal of disagreement and inconsistency remains over the scope
of DNA analysis required to produce a result as conclusive as an examination
of fingerprint samples. n187

Third, although police routinely take fingerprints from a crime  [*1010]
scene, they collect DNA samples on a far less consistent basis. n188 This
inconsistency in collection does not result from a lack of available DNA
evidence, as criminals - and especially rapists n189 - almost always leave
behind DNA samples. n190 Rather, police do not commonly collect DNA samples
because such an effort is cost-prohibitive. n191 This inconsistency might
result in a prejudicial inference, against a criminal defendant, that the
evidence or case is especially important because investigators resorted to
DNA profiling. n192 Additionally, the failure to collect DNA evidence also
leads to conclusory statements that rhetorically, rather than
scientifically, bolster the value of DNA evidence. n193

DNA evidence warrants a further comparison with fingerprints by virtue of
the similarity in matching unknown samples with suspects of known identity.
n194 In both instances, analysts compare portions (i.e., a partial
fingerprint from a specific finger or a locus of a specific gene) of a
sample from an unknown source with its known counterpart (i.e., a print from
the same finger or a profile of the same genetic locus). n195 Similarly,
government officials store fingerprint samples as well as genetic profiles
from known sources in central repositories, n196  [*1011]  thus allowing law
enforcement agencies easy accessibility for comparison. n197

Even though the methodologies for performing a screening are similar, the
disparity between the associated costs of each process remains significant.
n198 Aside from the cost of the relevant software, fingerprint collection is
inexpensive and efficient. n199 In contrast, the labor-intensive effort to
analyze each DNA sample requires a relatively substantial financial
commitment. n200 The higher financial burden of DNA analysis has produced an
enormous backlog of DNA samples awaiting analysis following their collection
from crime scenes. n201

DNA and fingerprint results share a common bond with respect to the primary
controversy over their use as evidence against defendants at trial. The
debate swirls not around the admissibility of the evidence, n202 but rather
around the form of the expert testimony introducing the evidence. n203
Specifically with respect to DNA  [*1012]  evidence, the scientific
community has disagreed on the proper standards for estimating the
probability of a random match between a criminal defendant and a DNA sample
collected from a crime scene. n204 In fact, in a span of fewer than five
years, an expert commission n205 on the application of DNA technology to the
legal forum contradicted the conclusions drawn by its predecessor commission
n206 regarding the proper means of calculating such probabilities. n207

Finally, DNA and fingerprint samples differ significantly in their genesis
and physical composition, an important factor carrying the potential to
significantly affect a defendant's right to a fair trial pursuant to a DNA
indictment. Fingerprints derive their unique characteristics from random
events occurring during the embryonic stage of human development - separate
from genetic influence - while the DNA's individualizing characteristics
derive from genetic variation. n208 The difference has important
implications for distinguishing between twin siblings; because twins by
definition have the same genetic structure, n209 their DNA is
indistinguishable, yet scientists have the ability to distinguish between
identical twins on the basis of their respective fingerprint patterns. n210

Aside from the possible unfairness of using genetic evidence against a DNA
indictee at trial, which this Comment addresses  [*1013]  further in the
speedy trial analysis, n211 prosecutors' reliance on DNA evidence at the
post-indictment arrest phase also threatens a suspect's rights. DNA
indictments rely on a presumption of guilt after obtaining a cold hit
between a crime scene sample and a DNA offender database sample. n212 This
presumption threatens a person identified by the cold hit because the search
for additional suspects usually ends at that time. n213 By focusing their
energies on the cold hit suspect rather than continuing to exclude other
possible sources of the DNA, law enforcement officials risk overlooking the
culpability of equally probable suspects and ultimately prosecuting an
innocent individual. n214

Rather than accepting the DNA match as conclusive evidence of the cold hit
suspect's guilt, one commentator suggests investigators should expend
additional resources to confirm that other persons with similar genetic
structures could not have been the source of the crime scene sample, n215
even when circumstantial corroborating evidence suggests the cold hit
defendant's guilt. n216 Thus, DNA indictments based on genetic matches
between a database and the indictee only justify pursuit of the prosecution
after an investigation affirmatively excludes other potential sources of the
crime scene sample through testing of additional loci and consideration of
non-genetic (e.g., fingerprint) circumstantial evidence. n217

 [*1014]  Thus, despite the frequent comparisons between fingerprint and DNA
identification techniques, the differences between the two suggest
fingerprint evidence provides a more reliable method of identifying
suspects. This conclusion therefore begs a response as to why prosecutors
indict based on DNA but not on fingerprint matches. n218

C. Why Haven't Fingerprints Been Indicted?

To sustain an indictment or criminal information and the resulting arrest
warrant, n219 the issuing body n220 must find that probable cause n221
exists to believe the indictee committed the relevant crime. n222 In the
case of DNA indictments, grand juries issue "John Doe" indictments. n223
Although courts have not yet ultimately ruled on the validity of DNA
indictments, n224 logic dictates that "fingerprint indictments" would be at
least as reliable - if not more so n225 - than  [*1015]  DNA indictments.

The presence of a person's fingerprint at a crime scene does not compel the
conclusion that the person in all reasonable likelihood committed the crime.
n226 Although DNA indictments remain subject to challenge on the grounds
that they alone do not establish probable cause, courts have consistently
found that fingerprints alone are sufficient to establish probable cause
and, in some cases, even proof beyond a reasonable doubt of a suspect's
guilt. n227 Even though prosecutors ostensibly could indict on fingerprint
evidence alone with confidence they will satisfy the indictment's probable
cause requirement, n228 they have acted with restraint and declined to do
so. n229

Prosecutors' attempts to vindicate the rights of rape victims n230 indeed
represent noble endeavors. Yet, if they continue to pursue DNA indictments,
they might find it difficult to refrain from pursuing fingerprint
indictments to vindicate the rights of victims of other types of criminal
activity. n231 Such a scenario essentially would  [*1016]  obliterate the
statute of limitations for any crime resulting in DNA or fingerprint
evidence. n232 In essence, the legal justice system could transform
overnight from an institution designed to protect the innocent n233 to a
system that places more value on winning convictions - with potentially
disastrous implications for innocent bystanders who had the misfortune to
leave their DNA or fingerprints at a place that subsequently turned into a
crime scene.

IV. Historical and Modern Application of the Speedy Trial Clause

If the courts uphold DNA and fingerprint indictments in spite of their
inconsistency with the policy underlying statutes of limitations, n234
defendants ultimately might rely on the Sixth Amendment's Speedy Trial
clause n235 as a last resort to protect their rights. The following analysis
examines the historical development and purpose of the clause, leading to
provocative questions about the constitutionality of DNA indictments. The
section concludes by extrapolating existing precedent and suggesting an
analysis courts should employ in assessing the constitutionality of DNA
indictments with respect to the speedy trial provision.

A. History of the Speedy Trial Clause

The Sixth Amendment provides, in relevant part, "in all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial
... ." n236 As with the statute of limitations, the Speedy Trial Clause
derives from English law. n237 The earliest evidence of a similar right
comes from the Assize of Clarendon in 1166. n238 The most formal  [*1017]
historical articulation of the clause, however, appeared in the Magna Carta
in 1215. n239

At an early date, Sir Edward Coke recognized the importance of providing a
speedy trial to defendants detained in custody. n240 He commended the
traveling justices for meting out speedy justice. n241 Coke viewed the Magna
Carta as "one of the fundamental bases of English liberty." n242 As a result
of Coke's substantial influence, his opinions had a significant impact on
American colonists. n243

Virginia's Bill of Rights, the first among the colonies, revealed deference
to Coke's writings by borrowing heavily from the Magna Carta. n244 Several
of the other colonies followed Virginia's lead by enacting similar
provisions within their respective state constitutions. n245 Although few
documents record the adoption of the Sixth Amendment's Speedy Trial Clause,
n246 the Supreme Court has recognized that the speedy trial guarantee in
Virginia's Declaration of Rights of 1776 provided the foundation for the
Sixth Amendment. n247 In addition to the federal guarantee to a speedy
trial, each of the fifty states provides a similar guarantee to those within
its  [*1018]  jurisdiction. n248

B. Rationale Justifying the Speedy Trial Clause

Commentators generally agree the Speedy Trial Clause protects three distinct
interests: (1) to avoid protracted pre-trial detention of the defendant;
n249 (2) to avoid the anxiety and embarrassment of public accusation of a
crime; n250 and (3) to minimize the prejudice to a defendant's ability to
defend himself by pressing the charges before evidence deteriorates and
memories fade. n251 These three interests do not exhaust all the reasons
behind the Speedy Trial Clause, but rather account for the most important
and oft-cited purposes advanced to justify this constitutional guarantee.
n252 All three of these interests are designed to protect the rights of the
accused in a criminal prosecution. n253

First, the Speedy Trial Clause protects a criminal defendant's personal
liberty interests by compelling the Government to dispose of his case as
soon as possible. n254 Of the three reasons justifying the Speedy Trial
Clause, this rationale holds the strongest basis in historical context. n255

 [*1019]  The second interest advanced in support of the speedy trial
guarantee is less tangible than the first. n256 The courts have consistently
referred to this interest as the defendant's right to minimize "public
obloquy." n257 The goal of this interest is to reduce, to the extent
possible, the anxiety, embarrassment, and suspicion that are inherent when a
person is publicly accused of criminal activity. n258

The third interest, protecting a defendant from stale claims, overlaps to a
great extent with the rationale supporting statutes of limitations. n259
This purpose does not find support in the historical evolution of the right
to a speedy trial, as courts independently have developed and adopted the
reason as fundamental to an understanding of the speedy trial right. n260
Their interpretation lies at the heart of the analysis in this Comment.

C. Judicial Interpretation and Application

The constitutionality of DNA indictments, in light of the Sixth Amendment's
Speedy Trial clause, likely will be challenged in the near future. n261 The
following discussion suggests that the difficulty in anticipating the
Supreme Court's ruling on the subject derives, at least partially, from the
Court's inconsistent application of the Speedy Trial Clause.

Prior to 1967, the Supreme Court had given "scant attention" n262 to the
Speedy Trial Clause. Until that time, the Court had considered only three
cases directly addressing the constitutional right to a  [*1020]  speedy
trial. n263 The legal protections afforded to defendants remained so slight
that in 1975, Congress deemed it necessary to codify a statutory version of
the speedy trial guarantee n264 to give force to the constitutional right.
n265 In fact, the relative dearth of Supreme Court precedent on this topic
may be due, in part, to the preclusionary effect of the more stringent
statutory provisions. n266

Beginning with the Supreme Court's decision in United States v. Ewell, n267
however, the Speedy Trial Clause began to take on far more significance than
previously accorded. For the first time, the Court delineated the three
protections n268 the constitutional provision protects. n269 The following
year, the Court decided another speedy trial case, Klopfer v. North
Carolina, n270 explicitly stating that "the right to a speedy trial is as
fundamental as any of the rights secured by the Sixth Amendment." n271 The
Court underscored its newfound fascination with the Speedy Trial Clause by
announcing the Sixth Amendment right to a speedy trial applies to the states
through the Fourteenth Amendment. n272 In Klopfer, the Court justified its
decision n273 by examining the personal liberty and public obloquy
rationales, without considering the potential evidentiary prejudice to
 [*1021]  a defendant's case. n274

Since 1967, the Court's decisions have reflected an internal disagreement
over the importance of potential prejudice to a defendant in speedy trial
analysis. n275 With the precedent in apparent conflict, the Court took the
opportunity to clarify its speedy trial doctrine in Barker v. Wingo n276 in
1972. Barker involved a defendant's appeal from a murder conviction on
speedy trial grounds after sixteen postponements of his trial date
throughout the five years following his arrest. n277 Notably, however,
Barker did not object to the first eleven continuances, and only asserted
his speedy trial right on the day his trial began in 1963. n278 The Court's
opinion n279 marked a  [*1022]  departure from the Sixth Amendment's
historical protection of the rights of criminal defendants n280 by declaring
the speedy trial right also protects a societal interest distinct from the
rights of the defendant. n281

After noting the deficiencies of alternative proposals, n282 the Court
enunciated a new four-part balancing test to determine whether a prosecution
has violated a defendant's speedy trial rights. Instead of exclusively
focusing on the defendant's interests, the test additionally considers (1)
"society['s] interest in bringing swift prosecutions," n283 by examining the
length of delay between indictment, arrest and trial, (2) the validity of
the government's reason for the delay, n284 (3) the defendant's delay in
asserting his right, n285 and (4) prejudice to the defendant. n286 Despite
the discussion about the importance of societal rights, the Court explicitly
declared that the interest in minimizing prejudice to the defendant n287 is
the "most serious" of the four factors because the integrity of the legal
system of justice depends on an accused's ability to defend against criminal
claims. n288

Although the new Barker test finally provided a relatively concrete
guideline by which to measure the defendant's rights, subsequent decisions
revealed a continuing conflict over whether the Sixth Amendment should be
applied to vindicate a defendant's interest in minimizing prejudice to his
case. n289 Most recently, in Doggett v. United  [*1023]  States n290 the
Court again sullied the clarity of the Speedy Trial Clause waters by
reviving the significance it attached to prejudice against the defendant in
the earlier Dickey v. Florida opinion. n291

In Doggett, Drug Enforcement Agency (DEA) agents attempted to arrest the
defendant, Marc Doggett, at his residence in 1980 after a federal grand jury
indicted him for conspiring to import and distribute cocaine. n292 Doggett,
however, had left for Colombia, without any knowledge of the indictment, by
the time agents reached his residence. n293 The agents subsequently entered
Doggett's name into several national databases and notified Customs
officials of the outstanding arrest warrant. n294 In 1981, agents learned
Doggett was facing drug charges in Panama, but their failure to secure his
extradition allowed Doggett to return to Colombia. n295 Doggett returned to
the United States in 1982, passing through Customs without any problems,
n296 and settled into an otherwise productive and law-abiding life. n297 The
DEA agents assigned to the case failed to actively pursue Doggett or inquire
into his location, n298 allowing him to live freely until a routine credit
check performed by the U.S. Marshal's Service in 1988 finally helped police
locate Doggett and execute his outstanding arrest warrant. n299

 [*1024]  In applying the Barker four-factor balancing test to Doggett, the
Court placed a strong emphasis on the fact that the government could not
justify the reason for the eight and a half year delay in pursuing the
defendant's case. n300 However, the Court also indirectly created an
irrefutable presumption of prejudice to the defendant's case, to be weighed
against the government, when the defendant makes a showing of an
"extraordinary" delay in prosecution. n301 In so doing, the Court
essentially made it easier for defendants to tip the Barker balance in favor
of defendants.

D. Applying Barker/Doggett to DNA Indictments n302

The practice of DNA indictment raises several questions of constitutional
significance in light of the Court's interpretation of the Speedy Trial
Clause throughout the past thirty years. Because DNA indictments are
designed to defeat the relevant statute of limitations, n303 the prosecution
presumes the delay between indictment and trial will be substantial. n304 A
speedy trial defense for a DNA  [*1025]  indictee should offer a great deal
of protection, especially in light of the Court's creation of an irrefutable
presumption of prejudice to the defendant who establishes that an
"extraordinary delay" n305 took place between indictment and arrest. n306
The following discussion examines some important constitutional questions
implicated by DNA indictments and attempts to harmonize the practice with
the articulated objective of protecting defendants from the prejudice caused
by a delayed prosecution.

As a preliminary matter, a doubt remains as to whether a defendant
implicated by a DNA indictment retains the right to raise a speedy trial
defense. The Sixth Amendment provides that "the accused shall enjoy the
right to a speedy ... trial ... ." n307 The Supreme Court has construed this
clause to require either the arrest or the filing of a formal indictment or
criminal information before the Sixth Amendment right to a speedy trial
attaches. n308 Yet the Court has construed the Sixth Amendment as applicable
only to "persons," which do not necessarily include samples of genetic
material. n309

The underlying rationale for this policy acknowledges that a defendant's
arrest is a public act that restricts his personal liberty and subjects him
to suspicion and embarrassment in the community. n310 The practice of DNA
indictment occurs, by definition, when the identity of the defendant is
known neither to law enforcement agencies nor the public at large. n311
Therefore, the defendant is at no  [*1026]  risk of suffering from
restrictions on his liberty or public humiliation because the charge is
filed in the form of a "John Doe" indictment. n312 If, however, the courts
find a DNA indictment sufficiently describes a person, n313 as DNA
indictment proponents suggest, n314 only an unreasonably hypertechnical
reading of precedent would preclude application of the speedy trial
provision on these grounds. n315

Assuming arguendo that the Court will not dismiss such a defense as facially
insufficient, many additional questions remain after Doggett regarding the
constitutionality of DNA indictments. The pivotal question depends on
whether the Sixth Amendment protects defendants against prejudice due to
lost or faded evidence, or whether that duty lies within the primary
province of the statute of limitations.

1. Beyond Doggett: Application of the Barker test to DNA indictment

The Court's conflicting precedent n316 in addressing this question offers no
easy answers in the case of DNA indictments. For this reason, the following
analysis raises some of the difficult questions that DNA indictment provokes
and attempts to extrapolate the Court's reasoning to the current scenario.
The section concludes with recommendations that courts should entertain upon
examining DNA indictments in light of the Speedy Trial Clause.

 [*1027]

a. Length of delay

In assessing the length-of-delay factor, the Supreme Court has recognized a
one-year delay between accusation and trial presents a presumption of
prejudice to the defendant sufficient to trigger a Barker analysis. n317 The
Court thereby shifted the burden to the prosecution to rebut the presumptive
prejudice. n318 In Doggett, however, the Court found an irrebuttable
presumption of prejudice n319 due to "extraordinary" n320 delays, without
defining which factors cause an extraordinary delay and without
distinguishing an extraordinary from a regular delay. n321

A simple examination of the length of delay involved in Barker n322 and
Doggett n323 leads to the conclusion that a delay lasting longer than five
years, i.e., longer generally than most limiting statutes, n324 qualifies as
extraordinary and thereby presents an irrebuttable presumption of prejudice
against a criminal defendant. Although the foregoing conclusion appears to
establish unequivocally that DNA indictments presumptively prejudice
defendants' cases, two factors deserve consideration on this issue. First,
the relevant time frame involved in speedy trial analysis is the period
between accusation (or arrest) and trial. n325 Because prosecutors have
artificially manipulated the  [*1028]  indictment process, n326 they in
effect prohibit defendants from invoking their Sixth Amendment rights until
the statute of limitations has expired. n327 When prosecutors indict DNA
immediately prior to the expiration of the limitations period, they deprive
defendants of statutory rights and may also preclude an invocation of
constitutional rights. n328

Second, the Court allows subjective interpretations to control whether the
length of the delay is sufficient to trigger a Barker analysis. n329 By way
of example, the Court recommended trial courts consider the nature of the
criminal activity, suggesting they should tolerate longer delays for more
"serious" crimes. n330 Leaving this decision to subjective determination
creates the danger judges will focus on the emotionally compelling account
of a rape victim to determine the severity of the crime's effect. n331 Lower
courts should  [*1029]  remain mindful of Barker's emphasis on the
complexity of the crime itself as opposed to the severity of its results in
order to avoid trampling DNA indictees' constitutional rights. n332

b. Cause of the delay

In the speedy trial cases the Court has adjudicated under a Barker analysis,
it has concentrated on issues such as the government's intentional or
negligent "lethargy" n333 and the defendant's stall tactics. n334
Prosecutors' injection of genetic evidence into this analysis, through DNA
indictments, presents entirely new issues the Court has not yet addressed.
For example, has the government satisfied its burden of diligence n335
simply by entering a DNA sample from an unknown source, collected from the
scene of an alleged crime, into a databank? An extrapolation of Doggett
implies the government's burden reaches further than simply entering data
into a databank, n336 although Doggett remains distinguishable on the
grounds the police in that case knew the defendant's identity. n337

On the other hand, the government has very limited options in searching for
a suspect they do not know by name or physical  [*1030]  description. n338
In fact, by analogy the Court might sympathize with a governmental delay
caused by difficulty identifying the suspect. n339 The government might
further strengthen its position by likening an investigation premised on a
DNA indictment to other types of complex prosecutions that require
additional time to investigate. n340

DNA indictments raise the additional question of whether courts should tip
the balance against the government for the delay in entering a defendant's
DNA sample into a database. n341 In such a scenario, the delay could have
resulted from a lack of available resources n342 or prosecutors' failure to
recognize the usefulness of DNA evidence. n343 Courts may properly deem this
delay official negligence, n344 especially with respect to prosecutors'
failure to realize  [*1031]  the importance of DNA evidence. Dicta from the
Barker opinion suggests courts should attribute such delay to the government
n345 but should not weigh it as heavily as deliberate governmental
bad-faith. n346

In making their assessments, however, courts should not overlook
prosecutors' professional responsibilities n347 in seeking indictments. n348
If prosecutors begin indicting DNA to circumvent the statute of limitations
for every rape case, n349 for example, they significantly increase the risk
of running afoul of professional standards of conduct. n350 If the courts
uphold DNA-based warrants and indictments, prosecutors can and should seek
to preserve defendants' constitutional rights by employing these tools based
on reasoned judgment n351 rather than mere opportunity. n352

 [*1032]

c. Defendant's vigilance in asserting speedy trial rights

In Doggett, the Supreme Court found that the defendant's vigilance in
asserting speedy trial rights should not weigh against a defendant who is
unaware of an indictment pending against him. n353 In the case of a DNA
indictment, the defendant presumably would not know he had been indicted
even if the indictment described the genetic markers within the DNA. n354
Absent a showing by the government that the defendant knew about the
indictment, n355 this consideration will be a non-factor in a Barker
analysis of a DNA indictment case.

The discussion above focuses on three factors that individually retain
importance in assessing a defendant's right to a speedy trial. n356 As
alluded to in each instance, however, the main thrust of this analysis
depends on the lynchpin of the Speedy Trial Clause: the potential prejudice
accruing to an accused defending via an old claim. n357

d. Prejudice to the defendant

The Barker Court identified three interests that lower courts should
consider when weighing the prejudice suffered by defendants as a result of
the delay: (1) oppressive pre-trial detention; n358 (2) public obloquy; n359
and (3) impairment of the defendant's ability to defend  [*1033]  himself.
n360 Recognizing the Supreme Court has not been consistent in analyzing the
prejudice factor, n361 the following section attempts to predict the impact
of DNA indictments on these considerations. It concludes that this Barker
factor should favor the defendant because DNA indictments inherently
prejudice indictees' abilities to raise defenses.

i. Pretrial detention

In applying the pretrial detention factor, the Court's main concerns address
restrictions on defendants' liberty. n362 By definition, n363 DNA indictees
do not face the consequences contemplated by pretrial detention and
therefore render it a non-issue in speedy trial analysis of DNA indictments.

ii. Public obloquy

The Court has also expressed a concern over the social consequences a
suspect faces upon public accusation of a crime. n364 As with the pre-trial
detention issue, a DNA indictee's nominal anonymity n365 shields him from
public obloquy and similarly renders it moot.

iii. Impairment of defense

Because the Court has not applied the impairment of defenses factor
consistently, the following analysis relies on the Court's most recent
articulation of the issue in Doggett. n366 The majority suggested that
courts have a duty to consider all factors resulting from a post-accusation
delay affecting an accused's defense. n367

 [*1034]  In Doggett, the Court unwittingly bolstered the argument of future
defendants challenging DNA indictments by declaring that defendants need not
prove actual prejudice to assert impairment of defense. n368 If the
government fails to justify its delay in bringing the prosecution, n369
courts should automatically weigh this failure in the defendant's favor.
n370 The impairment of defenses factor will prove especially helpful to
defendants whose alleged crimes occurred long ago n371 and who no longer may
assert a statute of limitations defense. n372 Furthermore, if the courts
find the government's failure to enter a defendant's DNA sample into the
relevant database to constitute official negligence, n373 the delay
constitutes presumptive prejudice and this factor should favor the
defendant. n374

In examining the possible prejudice to a DNA indictee's defense, courts
should also consider the unique implications of the use of DNA evidence.
n375 In addition to facing the presumptive prejudice caused by a lapse of
time long enough to trigger a Barker analysis, n376  [*1035]  DNA indictees
must also address prejudice caused by use of DNA evidence that manifests in
factors such as: jurors' overemphasis on statistical probabilities
explaining the relevance of DNA evidence; n377 misperceptions surrounding
the accuracy of DNA evidence; n378 misleading explanations of DNA evidence
to jurors by prosecutors and their witnesses; n379 the potential for jurors
to assign undue weight to DNA evidence because of the inconsistency with
which investigators collect it; n380 and the scientific community's lack of
consensus in interpreting DNA evidence. n381 The foregoing list does not
suggest the government necessarily causes these unique problems, but instead
illustrates the significant hurdles an accused faces in defending against
the implications raised by DNA evidence. The prejudice a defendant faces as
a result of the cumulative effect of these factors on a jury is substantial.
n382 When assessed in combination with the presumptive prejudice caused by
the passage of time, these DNA-related issues warrant special consideration
in favor of defendants by courts determining the possibility that an
accused's case has been impaired.

Conclusions and Recommendations

The advent of DNA evidence presents exciting new possibilities, and
prosecutors recently have exploited its potential through the novel practice
of indicting genetic material. Though the virtues of this practice have been
extolled in the media, a deeper analysis reveals the adverse implications
for criminal defendants' statutory and constitutional rights.

First, by directly undermining the rationale giving rise to statutes of
limitations, DNA indictments flagrantly disregard the historical development
as well as the legislative n383 and judicial preference n384 for  [*1036]
limiting actions. Additionally, while forensic scientists have proven DNA to
be extremely useful in identifying criminal suspects, genetic evidence does
not yet deserve the accolades that dermatoglyphic fingerprint evidence has
garnered. n385

These conclusions compel several recommendations. First, legislatures should
re-assess their respective statutory regimes to determine whether their
current limiting actions warrant modification in light of the scientific
advances that give effect to DNA indictments. The development of public
policy lies within the primary domain of legislatures and they are uniquely
positioned to accomplish this task. n386 This solution offers the additional
benefit of preserving defendants' statutory rights rather than forcing them
to seek adjudication in courts of law.

Second, where possible, prosecutors should rely on fingerprint evidence to a
greater extent than DNA evidence. By doing so, they would increase the
probability of drawing a definitive conclusion as to identity and
simultaneously avoid the unique problems and the possible prejudice to
defendants that is associated with DNA evidence.

Third, in the event courts uphold the validity of DNA indictments,
prosecutors should exercise restraint in using them, similar to the
restraint they have shown in using fingerprint evidence. This recommendation
does not imply prosecutors should never use DNA indictments; indeed, there
may be instances when they are especially appropriate. n387 However, their
use should be limited to circumstances when, as with fingerprints, the
available evidence indicates significant corroborating evidence and a
substantial likelihood that: a crime occurred, the genetic sample derived
from the DNA indictee, and the DNA sample did not arrive at the crime scene
inadvertently or innocently. n388

 [*1037]  Finally, in analyzing a DNA indictee's inevitable invocation of
their speedy trial guarantee, courts should carefully scrutinize the
potential prejudice to the indictee's defense caused by the passage of time
by considering the possibility that prosecutors precluded invocation of his
statutory rights. n389 Moreover, courts should grant special consideration
to the unique sources of potential prejudice to defendants occasioned by DNA
evidence. n390 In performing their Sixth Amendment analysis, courts should
bear in mind not only the retrospective difficulties caused by the passage
of time, but also the futuristic hurdles a DNA indictee faces in attempting
to exonerate himself.

These recommendations attempt to provide safeguards against the most
egregious sources of prejudice facing DNA indictees. They provide a
preliminary step toward the preservation of criminal defendants' rights as
well as the integrity and that public trust in the criminal justice system.
n391

FOOTNOTES:
n1. See Erin Hallissy & Charlie Goodyear, Databank Match Brings Arrest on
DNA Warrant, S.F. Chron., Oct. 25, 2000, at A3 (explaining the legal genesis
of Robinson's case).

n2. See Audrey Cooper, Man Identified Only By DNA Arrested, AP Online, Oct.
25, 2000, available at 2000 WL 28615507 (reiterating that prior to
Robinson's arrest, police officers called the suspect the Second Story
Rapist "for his penchant of attacking women" on the second floor of their
residences).

n3. See id. (reporting that civil liberties advocates are concerned that the
process of issuing "John Doe" arrest warrants might adversely affect
suspects' abilities to defend themselves). For a further description of
so-called "John Doe" indictments and warrants, see infra note 5.

n4. See Richard Willing, Police Expand DNA Use, USA Today, Oct. 25, 2000, at
1A (noting that California is one of at least six states that has filed
charges against unidentified suspects using DNA evidence); County Charging
Unknown Man with Rape on DNA Evidence, AP Newswires, Feb. 14, 2000
[hereinafter Unknown Man] (quoting a California Deputy District Attorney,
who filed similar DNA indictments prior to Robinson's arrest, as saying,
"why should some victim not get what they [sic] deserve, just because we
don't have a name?").

n5. See Black's Law Dictionary 840 (7th ed. 1999) ("John Doe" is a
"fictitious name used in a legal proceeding to designate a person whose
identity is unknown ... ."). A "John Doe" indictment or warrant, therefore,
charges the legal entity of a person with the commission of a crime, but
describes the defendant through other means, e.g. a genetic profile, rather
than listing the suspect's name. Cf. id. at 1450 (defining "John Doe
Summons" as a "summons to a person whose name is unknown at the time of
service."). See also Bill Dedman, Only DNA Identifies Suspect in Rapes,
Oregonian, Oct. 10, 1999, at A8 (suggesting the process of indicting DNA is
novel because prosecutors usually employ "John Doe" warrants "when the
accused is known by an alias or by a physical description"). A DNA
indictment simply replaces a physical description with a genetic
description. See Charges Identify Rapist Only By His DNA, AP Newswires,
Sept. 3, 1999 [hereinafter Charges] (describing a DNA-based warrant used in
Milwaukee that identified the suspect as "John Doe, unknown male," with
matching DNA at "genetic locations D1S7, D2S44, D5S110, D10S28 and D17S79").

Many state codes specifically provide for the use of "John Doe" warrants and
indictments. See, e.g., Cal. Penal Code 815 (West 1985) ("A warrant of
arrest shall specify the name of the defendant or, if it is unknown to the
magistrate ... the defendant may be designated therein by any name."); Mass.
Gen. Laws ch. 277, 19 (1992) ("If the name of an accused person is unknown
to the grand jury, he may be described by a fictitious name or by any other
practicable description ... . An indictment of the defendant by a fictitious
or erroneous name shall not be grounds for abatement ... .").

n6. See David Kravets, DNA Sidesteps Limitations Statute, AP Online, Jan. 6,
2001, available at 2001 WL 3649888 (indicating the filing of charges
precluded the statute of limitations from taking effect, thereby allowing
Robinson's arrest after the statutory deadline).

n7. See Willing, supra note 4, at 1A (revealing the prosecutor's reasoning
that state law allows DNA-based warrants because the law allows warrants
based on more general physical descriptions of suspects).

n8. See id. (noting that experts believe Robinson's case will make "legal
history"); see also Kravets, supra note 6 (suggesting Robinson's case might
reach the U.S. States Supreme Court); Erin Hallissy, DNA-Based Warrant Faces
Appellate Review, S.F. Chron., Apr. 6, 2001, at A3 [hereinafter Appellate
Review] ("Robinson's case could end up in the U.S. Supreme Court ... .").

n9. See Cooper, supra note 2 (noting that Robinson's case marks the "flash
point" in the debate between civil libertarians and law enforcement
agencies).

n10. On January 5, 2001, Robinson's attorney moved to dismiss the case
against his client based on a lack of subject matter jurisdiction because
the applicable statute of limitations expired before police arrested
Robinson. See E-mail from Mr. Johnny C. Griffin III, Robinson's attorney, to
author (Nov. 27, 2000) (hard copy on file with the American University Law
Review). On February 23, 2001, a California Superior Court judge rejected
Robinson's motion to dismiss the charges and upheld the arrest warrant as
valid. See Erin Hallissy, Judge Upholds Use of DNA Warrants, S.F. Chron.,
Feb. 24, 2001, at A1 (indicating that experts believe this ruling represents
the first time a court has considered the validity of a warrant identifying
an individual exclusively by genetic data). On April 25, 2001, the
California state Court of Appeals issued a stay in Robinson's case until it
reviews briefs and decides on the constitutionality of Robinson's arrest
warrant. See Appellate Review, supra note 8, at A3 (recognizing the
possibility that Robinson's case could ultimately compel the U.S. Supreme
Court to "set a national precedent on whether it is legal to use DNA
warrants to get around statutes of limitations").

n11. See Willing, supra note 4, at 1A (stating the charges prosecutors filed
against Robinson originally identified him "only by his DNA profile").

n12. See id. (indicating that California prosecutors "have charged a man
with rape using a warrant that identified him only by his DNA profile");
Julian E. Barnes, East Side Rapist, Known Solely by DNA, Is Indicted, N.Y.
Times, Mar. 16, 2000, at B1 (describing the indictment of an unidentified
rapist in Manhattan relying on DNA evidence); Charges, supra note 5
(describing a 1991 Kansas case in which the prosecutor used DNA to
"establish an unnamed defendant"); DNA Profile is Used as Basis for Arrest
Warrant in Sexual Assault Case, St. Louis Post-Dispatch, Dec. 5, 1999, at C2
(stating that an arrest warrant was filed in Illinois against a suspect in a
sexual assault case); Greg Kennedy, Prosecutors File Charges Against DNA
Profile in OU Student's Murder, The Daily Oklahoman, Mar. 21, 2000, at 1A
(noting that charges were filed against DNA evidence in an Oklahoma murder
case); Pennsylvania State U.: DNA Leads to Warrant for Man's Arrest in
Alleged Rape of Former Penn State Student, U-Wire, Mar. 30, 2000, available
at 2000 WL 17590335 (discussing a Pennsylvania case in which a warrant was
issued for the arrest of unknown man whose DNA matched the DNA evidence in a
rape case); Lisa Sink & Linda Spice, Use of DNA Evidence Expands, Milwaukee
J. & Sentinel, Oct. 26, 2000, at 1B (reporting a Wisconsin prosecutor filed
an arrest warrant against DNA); Brady Snyder & Amy Joi Bryson, Charge Filed
Against DNA, Deseret News, Mar. 3, 2000, at A1 (referring to two Utah
criminal cases in which charges have been filed against DNA evidence);
Unknown Man Indicted in Austin Rape Case, Hous. Chron., Nov. 5, 2000, at 45,
available at WL 24523884 [hereinafter Austin Rape] (noting that a grand jury
indicted an unknown man for a 1995 rape case when genetic material
constituted the only evidence); Williston Junior High School Vandalized, AP
Newswire, Apr. 23, 2000 (identifying a North Dakota rape case in which a
prosecutor intended to use DNA evidence to obtain an indictment despite the
fact he did not have a suspect).

n13. See Charges, supra note 5 (stating that Milwaukee County Assistant
District Attorney Norman Gahn was not the first prosecutor to file charges
based solely on DNA).

n14. See id. (indicating that Kaufman filed charges against the DNA material
out of desperation because he did not possess any other leads in the case
and the statutory deadline for prosecution was quickly approaching).

n15. See id. (quoting Kaufman as indicating the cases remain open because
"we haven't found him yet").

n16. See Kan. Stat. Ann. 21-3106(4) (1995) ("[A] prosecution for rape ...
must be commenced within five years after its commission.").

n17. See Serial Rapist Indicted on Long Island Based Solely on DNA Evidence,
AP Newswires, Aug. 9, 2000 (noting that prosecutors initiated DNA indictment
in 1991, but "it was not until 1999 ... that other jurisdictions began to
follow suit").

n18. See David Doege, Novel Warrant IDs Suspect Only by DNA Databank
Evidence Used to Charge "John Doe' in Rape, Milwaukee J. & Sentinel, Sept.
2, 1999, at 1A (stating that authorities filed the charges before they
"bumped up against the time limit" for bringing a criminal case, based on
the relevant statute of limitations).

n19. See id. at 12A (quoting Gahn as saying, "we've got several more cases
like this that have been identified, and we will be filing them.").

n20. See David Doege, Prosecutor Uses DNA to Issue Warrant for Another
Rapist, Milwaukee J. & Sentinel, Dec. 10, 1999, at 7 (noting that in
addition to the three DNA indictments already filed, Gahn planned to pursue
at least three more DNA indictments against suspected rapists within several
weeks to preserve the state's jurisdiction over the cases).

n21. See Doege, supra note 18, at 12A (noting that Gahn's actions and
reputation as a recognized expert have enhanced Wisconsin's reputation as a
pioneer in the use of DNA evidence to resolve criminal cases).

n22. See sources cited supra note 12 (listing states that have pursued
charges against DNA material from crime scenes, all of which employed this
procedure following Norman Gahn's revival of DNA indictments in 1999).

n23. See David Doege, Arrest Sought for Assailant Known Only by Gene
Profile, Milwaukee J. & Sentinel, Nov. 11, 1999, at 1 ("Gahn contends he has
beaten the statute of limitations clock."); Rape Suspect Charged Only by DNA
Code, Cincinnati Post, Oct. 8, 1999, at 9A (quoting Gahn as explaining,
"this way, it's been put into the system so we will preserve jurisdiction");
Dedman, supra note 5, at A8 ("The prosecutor's strategy [in using a DNA
indictment] is an effort to keep the six year time limit for bringing
charges from running out.").

n24. See Doege, supra note 18, at 12A (quoting Marquette University Law
School Professor Daniel D. Blinka in describing Gahn's DNA indictments as
"extraordinary," and Ray Dall'Ostro, the chairman of the Wisconsin Bar
Association's criminal law section, calling the cases "creative").

n25. See id. (according to Professor Blinka, "This [practice of DNA
indictment] is going to raise some interesting, thick legal issues down the
road").

n26. See infra notes 142-43 and accompanying text (indicating that
fingerprinting dates back thousands of years); Keith Inman & Norah Rudin, An
Introduction to Forensic DNA Analysis 21 (1997) (finding scientists did not
perform DNA testing in the United States until 1986).

n27. The scientific community uniformly regards fingerprint evidence as more
accurate and capable of producing conclusive identifications than DNA
evidence. See infra notes 173-74 (comparing the scientific accuracy of these
two methods of identifying suspects in criminal investigations).

n28. An official with the National District Attorneys' Association has never
heard discussion about the idea of indicting fingerprints nor seen any type
of media coverage addressing the concept. Telephone Interview with James
Polley, Director of Government Affairs, National District Attorneys'
Association (July 24, 2001). Similarly, a veteran state prosecutor for over
23 years is not aware of any jurisdiction that has taken steps to indict
fingerprint evidence in the same way that prosecutors have done with DNA
evidence. Telephone Interview with Ara Crowe, Executive Director of the
Maryland State's Attorneys' Association, and state prosecutor for over 23
years (July 24, 2001).

n29. For example, the prosecutors in the Paul Robinson case arrested the
defendant after the statute of limitations expired, more than five years
after the victim reported the crime. See Kravets, supra note 6 (providing
the facts leading to Robinson's arrest).

n30. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial ... .").

n31. Statutes of limitations are also known as "limiting actions," and the
terms will be used interchangeably throughout this paper. Accord Tyler T.
Ochoa & Andrew J. Wistrich, The Puzzling Purposes of the Statutes of
Limitation, 28 Pac. L.J. 453, 454-55 (1997) ("The law of limitation of
actions is the set of legislatively and judicially created legal rules -
including the classification of claims, the duration of limitation periods,
the applicable principles of accrual and tolling, and the like - that
determine whether a claim is time-barred.").

n32. See U.S. Const. amend. VI.

n33. This Comment concentrates on the use of DNA indictments to assist in
identifying and prosecuting perpetrators of sexual crimes, especially rape.
The reasons for this narrow focus are three-fold: (1) Thus far, prosecutors
have used the vast majority of DNA indictments to pursue cases against
defendants accused of committing sexual crimes. See sources cited supra note
12 (listing cases, many of which involve rape and incest, in a number of
states where prosecutors have sought DNA indictments); (2) Prosecutors most
often use DNA evidence in sexual assault and murder cases. See Paul E.
Tracy, Ph.D. & Vincent Morgan, Big Brother and His Science Kit: DNA
Databases for the 21st Century, 90 J. Crim. L. & Criminology 635, 657 (2000)
(noting that DNA evidence usually is limited to sexual offenses and murder
cases). Murder generally is not subject to a statute of limitations. See
infra note 72 (listing crimes historically exempted from statutes of
limitations); and (3) This line of demarcation drawn by prosecutors using
DNA indictment allows an appropriate, albeit arbitrary, means of limiting
the scope of this Comment. This author recognizes, however, the potential
application of DNA indictments to additional criminal offenses.

n34. See Tracy & Morgan, supra note 33, at 649 (stating that DNA's use for
crime-fighting purposes depends on three premises: (1) the criminal must
leave DNA evidence behind at the crime scene; (2) a trained technician must
specifically perform a search for the DNA evidence; and (3) the evidence
recovered must be "found, collected, and be of sufficient quantity and
quality to permit DNA testing").

n35. See Jonathan W. Diehl, Note, Drafting a Fair DNA Exception to the
Statute of Limitations in Sexual Assault Cases, 39 Jurimetrics J. 431, 432
(1999) (noting that rapists are distinguishable from other categories of
criminals in that they "almost always leave behind identifiable biological
evidence").

n36. See Jennifer Sue Deck, Note, Prelude to a Miss: A Cautionary Note
Against Expanding DNA Databanks in the Face of Scientific Uncertainty, 20
Vt. L. Rev. 1057, 1062 (1996) (stating that DNA appears in all human cells
containing a nucleus).

n37. See Tracy & Morgan, supra note 33, at 639 (indicating that cells
containing nuclei are found "in all bodily fluids, tissue, and hair").

n38. Although it is certainly possible for a female to commit a sexual
offense, the focus of this Comment is on sexual crimes committed by males
against females. The concentration on male-against-female offenses is in
recognition of the fact that "the majority of sex offenders are male, while
the majority of reported victims are female." Jessica E. Mindlin, Comment,
Child Sexual Abuse and Criminal Statutes of Limitation: A Model for Reform,
65 Wash. L. Rev. 189, 193 (1990).

n39. See Tracy & Morgan, supra note 33, at 654-55 (arguing that the scarcity
of resources available to most law enforcement agencies severely limits
DNA's use as a crime-fighting tool).

n40. See Christopher H. Asplen, Integrating DNA Technology into the Criminal
Justice System, 83 Judicature J. 144, 146 (1999) (intimating that DNA typing
is relatively useful to the extent that there is an identified sample that
can be matched against an unidentified assailant's DNA).

n41. See Tracy & Morgan, supra note 33, at 640 (noting that the Department
of Justice, acting through the FBI, has taken advantage of the research and
funding resources available through the National Institute of Justice to
take the lead role in using DNA technology as a law enforcement tool). In
1994, Congress approved the project by providing legislative authorization
for the FBI to create a criminal DNA databank in the DNA Identification Act.
See 42 U.S.C. 14132 (1995). See generally George Bundy Smith & Janet A.
Gordon, The Admission of DNA Evidence in State and Federal Courts, 65
Fordham L. Rev. 2465, 2472 (1997) (delineating the three steps required to
make statistical analysis of DNA typing useful: (1) comparison of a known
sample against an unknown sample; (2) calculation of the probability of a
random match between the two samples to establish the statistical
significance of a match if found; and (3) determination of the probability
of such a match with respect to the general population).

n42. See, e.g., Tracy & Morgan, supra note 33, at 640-41 (discussing the
Federal Convicted Offender DNA Database as another example of the FBI's
leading role in developing DNA initiatives).

n43. See id. (explaining that the Anti-Terrorism and Effective Death Penalty
Act of 1996 requires incarcerated federal felons convicted of sexually
violent offenses to provide DNA samples to the databanks as a condition of
their release from prison). As of 1998, the CODIS system contained
approximately 250,000 known samples from offenders convicted of the
statutorily prescribed crimes. See Press Release, Federal Bureau of
Investigation, The National DNA Index System (Oct. 13, 1998), available at
http://www.fbi.gov/pressrel/pressrel98.htm (last visited June 18, 2001).

n44. See Tracy & Morgan, supra note 33, at 642-85 (detailing the value of
the database system). The hope is that the database comparison will lead to
a "cold hit" between a sample of unknown origin and a sample from a person
whose identity is known to law enforcement authorities. See id. at 644 n.40
(defining a "cold hit" as a situation when the source of a sample recovered
from a crime scene matches with a sample of known origin in the database,
thereby revealing the identity of a potential suspect).

n45. See David Doege, Felons' DNA Collection to Begin, Milwaukee J. &
Sentinel, Nov. 15, 2000, at 1B [hereinafter Doege, Felons'] (recognizing
that felons are often responsible for recidivistic crimes); Francie Latour,
Revisited Rapes, Reawakened Trauma, Boston Globe, May 28, 2000, at B1
(declaring the "time-tested knowledge that rapists, like other violent
criminals, tend to be repeat offenders."); National Research Council, DNA
Technology in Forensic Science 119-20 (1992) [hereinafter NRC I] (listing
recidivism statistics for prisoners released in 1983, which revealed that
36.4% of rapists and 32.6% of other sexual offenders were re-convicted
within three years of their release). The NRC I report also found that a DNA
profile databank focusing on sexual offenders, exclusive of other types of
criminals, would be the most cost-efficient means of cataloguing DNA because
of the high rate of recidivism for rapists. See id.

n46. See Smith & Gordon, supra note 41, at 2465 (declaring that DNA "is
found in every cell of the human body, except red blood cells").

n47. See NRC I, supra note 45, at 2 ("DNA, the active substance of genes,
carries the coded messages of heredity in every living thing.").

n48. See Inman & Rudin, supra note 26, at 19 (explaining that the scientist,
Alec Jeffreys, discovered the application of DNA technology to the science
of personal identification while otherwise searching for genetic disease
markers in DNA). Although scientists have drawn legitimate distinctions
between the terms "DNA fingerprinting," "DNA typing" and "DNA profiling,"
this Comment uses the terms interchangeably to refer to the process of using
DNA evidence and technology to identify a person's identity. See id.
(recognizing that scientists prefer the terms "DNA typing" or "DNA
profiling" because they are more descriptive); see also NRC I, supra note
45, at 27-31 (distinguishing DNA fingerprinting, which refers to the process
of testing multiple sites of a gene, from DNA typing, which tests only one
site of a particular gene). DNA typing generally is preferred in the United
States because the test results are easier to analyze, while English
scientists prefer DNA fingerprinting. See id. at 28.

n49. See Smith & Gordon, supra note 41, at 2468 (noting that RFLP analysis
is the primary technique for developing DNA evidence). For a simplified
explanation of the six scientific steps composing RFLP analysis, see id. at
2469-70.

n50. See Inman & Rudin, supra note 26, at 19 (noting that Kary Mullis
received a portion of the Nobel Prize in chemistry in 1986 for developing
PCR analysis). See generally id. at 37-55 (providing a scientific
explanation of how these two processes operate to analyze a DNA sample,
which can lead to an inference about the source's identity).

n51. See NRC I, supra note 45, at 40 ("With PCR amplification, very small
samples of tissue or body fluids - theoretically even a single nucleated
cell - can be used to study DNA.").

n52. See Inman & Rudin, supra note 26, at 47 (drawing a general comparison
between PCR and RFLP analyses through a discussion of PCR analysis performed
at a gene site named D1S80).

n53. See id. at 19 ("RFLP and PCR technology together form the cornerstone
of forensic DNA typing.").

n54. See Manning A. Connors, Comment, DNA Databases: The Case for the
Combined DNA Index System, 29 Wake Forest L. Rev. 889, 889 (1994) ("The use
of DNA for investigatory purposes is perhaps the most discriminating and
efficient prosecutorial device to be developed since the advent of
fingerprinting."); Tracy & Morgan, supra note 33, at 636 (noting that the
use of DNA evidence "has been hailed as a godsend" for fighting crime); see
also NRC I, supra note 45, at 25 (suggesting that as the use of DNA evidence
in trials becomes more and more common, jurors will come to expect
prosecutors to use it).

n55. See Inman & Rudin, supra note 26, at 20 (discussing the historical
development of DNA's now widely accepted use in criminal investigations).

n56. See id. at 20-21 (asserting that federal and local governments reacted
quickly in following the lead of private companies that initially introduced
DNA testing in the United States).

n57. See Sue Rosenthal, Note, My Brother's Keeper: A Challenge to the
Probative Value of DNA Fingerprinting, 23 Am. J. Crim. L. 195, 197 (1995)
("No two individuals, outside of identical twins, share the same genetic
pattern."); Diehl, supra note 35, at 436 ("If a laboratory matches DNA
samples from a crime scene and the suspect, the probability that the crime
scene DNA came from the suspect can be remarkably high.").

n58. See NRC I, supra note 45, at vii-viii (outlining the creation of The
National Research Council's Committee on DNA Technology in Forensic Science
in response to requests from scientists and the legal community for
clarification on legal issues implicating DNA evidence).

n59. See id. at 160 (warning that the perception of the infallibility of DNA
evidence, along with its technical complexity, might lead juries to ignore
other evidence).

n60. See Tracy & Morgan, supra note 33, at 673 n.105 (noting that samples of
DNA can remain viable for thousands of years if maintained under appropriate
conditions).

n61. See Barbara Ross et al., "John Doe' Indicted on DNA Evidence, Pitt.
Post Gazette, Mar. 16, 2000, at A20 (quoting law enforcement officials as
saying, "now, the indictment can stand "for 100 years,'" and "DNA technology
allows us to make arrests ... 10 years from now"); David Doege, supra note
22, at 1 (quoting an Assistant District Attorney as saying, "we're going to
get [the DNA indictee] someday") (emphasis added).

n62. Adams v. Woods, 6 U.S. (2 Cranch) 336, 342 (1805) (holding that in a
case involving prosecution for failure to pay a fine after violation of a
statute prohibiting the use of maritime vessels to carry on the slave trade,
it "would be utterly repugnant to the genius of our laws" to allow an
untimely criminal prosecution for a non-capital offense "in a country where
not even treason can be prosecuted after a lapse" of the statutory period).

n63. See Tracy & Morgan, supra note 33, at 669 (noting that every state has
a DNA database system either in operation or in the development stages).

n64. See id. at 674 (examining the uniformity of database statutes among
different jurisdictions).

n65. See id. at 640-41 (discussing the FBI's technological advances
following introduction of the CODIS).

n66. See supra note 43 (defining "cold hit").

n67. The primary focus of this Comment is on the policy and purpose of
statutes of limitations in the realm of criminal prosecution, and references
to statutes throughout this text are made with this criminal focus in mind.
However, statutes of limitations also exist to bar civil claims. See
generally Adolph J. Levy, Solving Statute of Limitations Problems 5-448
(1987 & Supp. 1992) (discussing civil litigation strategies for addressing
statute of limitations issues in the context of liability, medical
malpractice, wrongful death, governmental liability, the Federal Tort Claims
Act, and the Soldiers' and Sailors' Civil Relief Act). There is great
similarity between the purposes advanced to support these enactments in both
the civil and criminal context. See United States v. Marion, 404 U.S. 307,
322 n.14 (1971) (explaining the similarity of policies behind civil and
criminal statutes of limitations); see also Alan L. Adlestein, Conflict of
the Criminal Statute of Limitations with Lesser Offenses at Trial, 37 Wm. &
Mary L. Rev. 199, 253 n.234 (1995) ("To trace the origins of American
criminal statutes of limitations, it is important to acknowledge that the
civil law, as well as the English common law, influenced how criminal
procedure developed in the American colonies.").

n68. See Black's Law Dictionary, supra note 5, at 1422-23 (defining criminal
statutes of limitations as legislative enactments "establishing a time limit
for prosecuting a crime, based on the date when the offense occurred").

n69. See Ochoa & Wistrich, supra note 31, at 454-55 (declaring that limiting
statutes attempt to strike a balance between "the extinguishment of untimely
claims and ... encouraging the resolution of all claims, whether timely or
untimely, on their substantive merits").

n70. See Rosenthal, supra note 57, at 196 ("The advent of DNA analysis has
revolutionized both research science and the judicial system over the course
of the past decade."); David H. Kaye, DNA Evidence: Probability, Population
Genetics, and the Courts, 7 Harv. J.L. & Tech. 101, 101 (1993) (recognizing
that courts, attorneys, and government agencies, inter alia, have been
"struggling with DNA identification evidence at least since 1985").

n71. See infra Part II.A-C (discussing the historical purpose, rationale,
and judicial application of statutes of limitation).

n72. See J. Anthony Chavez, Statutes of Limitations and the Right to a Fair
Trial, 10 Crim. Just. 2, 2 (Summer 1995) (noting that "federal jurisprudence
always has contained statutes of limitations for all crimes, except murder
and forgery, to ensure timely and fair administration of justice"); see also
51 Am. Jur. 2d Limitation of Actions 1 (1970) (recognizing "pleas of
limitation were allowed long before there was any statute on the subject").

n73. See William D. Ferguson, The Statutes of Limitations Saving Statutes 7
(1978) ("Statutes of limitations relating to real property may be traced to
ancient Greece or beyond through numerous societies that developed in the
ancient world.") (citation omitted).

n74. See Ochoa & Wistrich, supra note 31, at 454 n.7 (indicating that "the
first English statute of limitations for real property actions" was enacted
in 4 Hen. 7, ch. 24 (1487) (Eng.)). But see Thomas E. Atkinson, Some
Procedural Aspects of the Statute of Limitations, 27 Col. L. Rev. 157, 157
(1927) (asserting that limitations of time in criminal and real actions had
existed for centuries prior to the seventeenth century). See generally
Ferguson, supra note 73, at 40 & n.131 (describing the reasons leading to
enactment of the Statute of Fines, 4 Hen. 7, ch. 14 (1487)); id. at 7-9
(discussing the progression of statutes of limitations and noting that "the
first modern style statute" is 32 Hen. 8, ch. 2 (1540)); id. at 26
(revealing that England's first statutes of limitations were intended to
quiet men's estates). Specifically, a woman who claimed she was raped "was
required to proceed immediately to the nearest vill and there state the
injury and show the marks and torn garments, then to report the matter to
the chief officer of the hundred and finally complain in the next county
court." Id. at n.1 (citing 14 Glanville, Tractus de Legibus et
Consuetundinibus ch. 6 (1554)).

n75. See Ferguson, supra note 73, at 7-12 (explaining the origin and purpose
of statutes of limitations through 1623).

n76. See id. at 11-12 (discussing that the enactment of a general statute of
limitations, 21 James I, ch. 16 (1623), was necessary to accommodate the
desire to limit the period available to bring ejectment actions due to the
pleading of fictitious claims to recover leasehold interests under 32 Hen.
8, ch. 2 (1540)).

n77. See William M. Schrier, Note, The Guardian or the Ward: For Whom Does
the Statute Toll?, 71 B.U. L. Rev. 575, 576 (1991) ("The statute differed
from those that had existed since antiquity in that it covered both personal
and real property actions. Furthermore, it included specific time periods
and liberal disability provisions.") (citation omitted).

n78. See Harvard Law Review Association, Developments in the Law Statutes of
Limitations, 63 Harv. L. Rev. 1177, 1178 (1950) [hereinafter Developments]
("The Limitation Act of 1623 marks the beginning of the modern law of
limitations on personal actions in the common law."); Wood v. Carpenter, 101
U.S. 135, 139 (1879) (noting that the 21st of James I "was adopted in most
of the American colonies before the Revolution, and has since been the
foundation of nearly all of the like legislation in this country"); see also
Adams v. Woods, 6 U.S. (1 Cranch) 336, 342 (1805) (interpreting the American
statute at issue by using 21st of James I as a basis for comparison);
Schrier, supra note 77, at 576-77 (noting that King James I's Limitation Act
of 1623 provided the basis for the colonies' limiting statutes in
pre-Revolutionary America).

n79. See Ferguson, supra note 73, at 6 (recalling that the earliest English
statutes of limitations addressed property issues, e.g., quieting men's
estates); cf. Adlestein, supra note 67, at 253 n.234 ("To trace the origins
of American criminal statutes of limitations, it is important to acknowledge
that the civil law, as well as the English common law, influenced how
criminal procedure developed in the American colonies.").

n80. See Adlestein, supra note 67, at 252 (noting that most states had
statutes of limitations at the beginning of the Republic, many of which were
derived from eighteenth-century colonial statutes).

n81. See Developments, supra note 78, at 1179 (acknowledging that the states
codified general criminal statutes of limitations at a "fairly early date");
see also N.J. Rev. Stat. 263 (1820) (enacted in 1796) (limiting prosecution
of capital offenses, except murder, to three years, and non-capital offenses
to two years). New York and Vermont also enacted statutes of limitations
before the 19th century. See Adlestein, supra note 67, at 252 n.233
(providing examples of offenses and their respective statutory time
limitations for prosecution in New York and Vermont).

n82. Wyoming and South Carolina are the two states that do not employ a
statutory limitations regime. See Adlestein, supra note 67, at 249-50, 250 &
n.223 (noting that while the length of the limitations and the types of
offenses they cover vary from state to state, Wyoming and South Carolina are
the only states without any statutory limitation period); Gary M. Ernsdorff
& Elizabeth F. Loftus, Let Sleeping Memories Lie? Words of Caution about
Tolling the Statute of Limitations in Cases of Memory Repression, 84 J.
Crim. L. & Criminology 129, 151 n.114 (1993) (listing South Carolina and
Wyoming as states without criminal statutes of limitations for any crimes
and noting that seven other states do not have limitations for felonies).

n83. See Adlestein, supra note 67, at 251 n.227 (finding that most states
have limitation periods for prosecuting an offense, but that "[a] single
general limitations period is not typical in state statutes, which commonly
differentiate between degrees of offenses"). But see Ernsdorff & Loftus,
supra note 82, at 151 n.114 (revealing that in seven states, there is no
limiting time period for the prosecution of felonies). The seven states that
do not have statutes of limitations for felonies are Alabama, Kentucky,
Maryland, North Carolina, Rhode Island, Virginia, and West Virginia. See
Ala. Code 15-3-5(a)(4) (Supp. 1993); Ky. Rev. Stat. Ann. 500.050 (Michie
1990); Md. Code Ann., Cts. & Jud. Proc. 5-106 (Supp. 1992); N.C. Gen. Stat.
15-1 (1983); R.I. Gen. Laws 12-21-2 (1981); Va. Code Ann. 19.2-8 (Michie
Supp. 1993); W. Va. Code 61-11-9 (1992).

n84. See 4 Am. Jur. Trials 441 (1966) (observing the impossibility of making
generalizations about the length of statutes of limitations among the states
because they are subject to the control of individual legislatures and
represent "public policy" considerations).

n85. See Developments, supra note 78, at 1179 (asserting most codifications
of statutory limiting periods provide "either that "all actions ... shall be
brought within' or "no action ... shall be brought more than' so many years
after "the cause thereof accrued.'").

n86. See Act of Apr. 30, 1790, ch. 9, 32, 1 Stat. 112, 119 (providing a
limitation of three years for treason and all capital crimes (except "wilful
murder" and forgery), and a limitation of two years for all non-capital
offenses).

n87. See Act of Apr. 13, 1876, ch. 56, 19 Stat. 32. As amended, the statute
included within its scope "most federal crimes." See Adlestein, supra note
67, at 249 n.222 (providing an historical overview of the development of the
criminal statutes of limitations in the United States).

n88. Congress subsequently exempted capital crimes from the statutes of
limitations period in 1939. See Act of Aug. 4, 1939, ch. 419, 53 Stat. 1198
(removing limitations periods from all capital offenses). In 1948, Congress
codified the statutory limitations in their current sections. See Adlestein,
supra note 67, at 249 n.222 (indicating that the Act of June 25, 1948, ch.
645, 62 Stat. 683, 827-28 (codified at 18 U.S.C. 3181-3182 (1988)) codified
an exemption of limitations for capital offenses and limited the statutory
period for non-capital offenses to three years). In 1954, Congress extended
the period of limitations from three years to five years for non-capital
crimes, unless otherwise excepted. See Act of Sept. 1, 1954, ch. 1214,
10(a), 68 Stat. 1142, 1145, amended by Act of Sept. 26, 1961, Pub. L. No.
87-299, 75 Stat. 640, 648 (changing the statute of limitations period to
five years for non-capital offenses).

n89. See 18 U.S.C. 3181-3182 (1988) (stating the time limits for prosecuting
capital and non-capital offenses).

n90. See generally James M. Fisher, The Limits of Statutes of Limitation, 16
Sw. U. L. Rev. 1, 35-435 (1986) (providing annotated tables of the federal
statutes of limitations). Accord 4 Am. Jur. Trials 441 (1966) (contending
"most federally created rights of action have specific statutes of
limitations," but noting that "there is no federal statute of limitations of
general application").

n91. See 4 Am. Jur. Trials 441 (1966) ("Limitation of actions is controlled
by statute ... Statutes of limitation come into law not through the judicial
process but through legislation. They represent a public policy about the
privilege to litigate."); Adlestein, supra note 67, at 251 (clarifying that,
because legislatures control the statutes, "the time periods in these
statutes can be changed at the will of the legislature or can be eliminated
entirely") (citations omitted).

n92. See, e.g., Adelstein, supra note 67, at 249 & n.222, 250 & n.223
(revealing that as recently as 1988, Congress extended the statute of
limitations for criminal violations of the RICO statute); see also id. at
250 n.223 (noting that "state statutes of limitations are frequently
amended, usually to extend the limitations periods"); Michael E. Baughman,
Comment, Defining the Boundaries of the Adverse Domination Doctrine: Is
There Any Repose for Corporate Directors?, 143 U. Pa. L. Rev. 1065, 1116-17
(1995) (suggesting legislatures have a duty to monitor the application of
statutes of limitations by the courts and "must not shirk [their]
responsibility."); Gail L. Heriot, A Study in the Choice of Form: Statutes
of Limitation and the Doctrine of Laches, 1992 BYU L. Rev. 917, 922 (1992)
(implicitly arguing that it seems "dubious" for courts to diverge from the
explicit text of statutes of limitations to adapt the statute to changing
times).

n93. Tolling "stops the running of a statute" of limitations. See Black's
Law Dictionary, supra note 5, at 1495 (defining "toll"); see also Michael
John Byrne, Let Truth Be Their Devise: Hargett v. Holland and the
Professional Malpractice Statute of Repose, 73 N.C. L. Rev. 2209, 2218
(1995) (finding that because of the "harsh results" of the rigidity of
statutes of limitations, "almost all jurisdictions" began to employ methods
of tolling the statutory period).

n94. See Kent Sinclair & Charles A. Szypszak, Limitations of Action Under
the FTCA: A Synthesis and Proposal, 28 Harv. J. on Legis. 1, 23 (1991) ("The
equitable tolling cases are quite specific in their genesis and limited in
scope, and do not offer a broad exception to applying an otherwise
appropriate statute of limitations."); see also O'Brien v. Mass. Bay Transp.
Auth., 541 N.E.2d 334, 335-36 (Mass. 1989) (declaring the court will not
read a legislative intent to create a short statute of limitations into a
statute when the legislature did not explicitly indicate this preference
within the statute); Schrier, supra note 77, at 576-77 (suggesting most
modern limiting statutes have restricted judicial discretion by specifically
codifying the 1623 Limitation Act's tolling provisions for minority and
mental incompentency); cf. Heriot, supra note 92, at 952-53 (asserting that
by the nineteenth century, American equity courts had converged so much with
the law courts that equity judges realized they "should accept the length of
time stated in the analogous statute of limitations as reasonable and not
deviate from it except in unusual circumstances").

n95. See Ochoa & Wistrich, supra note 31, at 514 (noting that "it is
probably futile to attempt to isolate a single purpose from among those
listed [in the article, discussing civil statutes of limitations] that
sensibly could be assigned a greater general importance than all of the
others"). The ambiguity and confusion over the reasons justifying civil
limiting actions, ironically, results from a popular satisfaction with the
statutes. See Adlestein, supra note 67, at 257 n.251 (suggesting there has
been very little legislative debate over the purposes for statutes of
limitation relating to civil actions because society generally has been
content with their operation since the Limitations Act of 1623). Because the
statutes traditionally have not been a point of contention, the polity has
accepted them without any detailed legislative justification. See Ferguson,
supra note 73, at 40 ("the statutes themselves shed little or no light upon
the underlying purpose of the statutes but only the general situation sought
to be remedied"); see also Mary E. Miller, Barbed Wire in the Borderland:
Statute of Limitations Choices for Wrongful Discharge Claims, 23 San Diego
L. Rev. 833, 835 (1986) ("Regarding both English law and the early American
statutes, the intent of the enacting legislatures is not readily
apparent.").

n96. See Byrne, supra note 93, at 2216 ("Recent Supreme Court decisions and
a treatise on the limitation of actions have confirmed the persistence" of
the purpose of repose behind the statutes of limitations).

n97. See Heriot, supra note 92, at 925 (stating Parliament's historical
policies behind England's 1540 limiting statute were "clear," in that
Parliament wanted to "guard against the dangers of trying a case for which
the relevant evidence had been lost or destroyed ... ."). "Repose," is
defined as "cessation of activity; temporary rest." Black's Law Dictionary,
supra note 5, at 1303. In the context of limiting actions, however, the term
takes on a variety of meanings. See Ochoa & Wistrich, supra note 31, at 460
(noting the "primary purpose" behind statutes of limitations was to preserve
repose); see also Order of R.R. Telegraphers v. Ry. Express Agency, 321 U.S.
342, 348-49 (1944) ("Statutes of limitation ... in their conclusive effects
are designed to promote justice by preventing surprises through the revival
of claims that have been allowed to slumber until evidence has been lost,
memories have faded, and witnesses have disappeared."); Sinclair & Szypszak,
supra note 94, at 23 ("The articulated focus of statutes of limitations ...
seems to be on the difficulties inherent in litigating stale claims and on
the unfairness to defendants that would result from having to search for
evidence that has faded or has been lost due to the passage of time.");
Adlestein, supra note 67, at 262 ("The Supreme Court's rationale for
criminal statutes of limitations involves ... the protection of the
individual defendant from a potentially unfair trial ... ."); Developments,
supra note 78, at 1185 (stating that the "primary consideration" of statutes
with time limitations "is undoubtedly one of fairness to the defendant").

n98. Compare Ochoa & Wistrich, supra note 31, at 460 (""Repose' includes at
least four distinct but overlapping concepts: (a) to allow peace of mind;
(b) to avoid disrupting settled expectations; (c) to reduce uncertainty
about the future; and (d) to reduce the cost of measures designed to guard
against the risk of untimely claims"), with Model Penal Code 1.06 cmt. 1
(1985) (listing purposes for criminal statutes of limitations, including
"promoting repose by giving security and stability to human affairs").

n99. See Ferguson, supra note 73, at 40-43 (debunking the theories that the
statutes are designed to protect the public interest or a plaintiff's
rights); id. at 43 (concluding "it logically appears that the primary
purpose of the statutes was to protect defendant against loss of witnesses
and evidence and to protect his acts in reasonable reliance on plaintiff's
inaction"). But see Adlestein, supra note 67, at 258 n.253 ("The general
interest of the public also is served by statutes of limitations" in the
form of judicial efficiency) (quoting 1 Calvin W. Corman, Limitation of
Actions 1.1, at 16 (1991 & Supp. 1993)). Once again, this analysis is
generally cloaked in the language of civil claims, but its historical basis
is applicable to criminal actions as well. See Adlestein, supra note 67, at
252 (reasoning the policies underlying civil statutes of limitations
facilitate an understanding of their criminal counterparts).

n100. See Ferguson, supra note 73, at 26 (asserting the purpose of quieting
estates by creating statutes of limitations was only partially achieved in
England).

n101. For a thorough discussion of the policies favoring and disfavoring
statutes of limitations in the civil context, see generally Ochoa &
Wistrich, supra note 31, at 460-510.

n102. See id. at 471-72 (arguing that deterioration or loss of evidence
increases the possibility of unfair prejudice against defendants).

n103. This justification of the limitation system rests on three premises.
The first is that the minimization of error in adjudication is a goal of the
legal system. The second is that, on balance, evidence deteriorates with the
passage of time. The third is that the effects of such deterioration on the
accuracy of the legal system can be avoided by barring all cases commenced
after the limitation period has expired.

Id. at 472; see also Jacqueline Kanovitz, Hypnotic Memories and Civil Sexual
Abuse Trials, 45 Vand. L. Rev. 1185, 1219 n.147 (1992) (noting experimental
memory psychologists have proven that eyewitness testimony potentially
suffers from infirmities including "incorrect perception at the input stage,
internal revisions during the storage phase, and contamination during the
retrieval stage," thereby rendering a reliance on memory inherently suspect)
(citations omitted). In addition to the unreliability of the quality of
memory, the natural process of "internal self-elaboration on memory," or
"confabulation," leads to the danger that human memory will "account for
missing information by supplying the missing details from the subject's
general store of life experiences or from logical deductions about what the
missing information ought to be." Id. at 1230 n.190 (emphasis added)
(citation omitted).

The dangers of faulty memory only increase during crimes, such as forcible
sexual assaults, that involve the use of intimidating weapons. See id. at
1232 n.204 ("In a highly stressful state people concentrate more on just a
few features from their environment, and they consequently pay less
attention to others. This selectivity of attention can be seen when people
experience crimes involving weapons.") (quoting Elizabeth F. Loftus & James
F. Doyle, Eyewitness Testimony: Civil and Criminal 50-51 (1987)).

n104. See Ernsdorff & Loftus, supra note 82, at 148 (noting courts recognize
that "a criminal charge portends far greater consequences than a civil
charge"); Developments, supra note 78, at 1186 (recognizing that criminal
defendants seek to protect the "special interest" of preserving their
freedom, as distinct from the interests that defendants in civil actions
seek to protect); see also Heidi L. Neuendorf, Note, The Judicial Impediment
on Legislative Lawmaking in Stratmeyer v. Stratmeyer, 44 S.D. L. Rev. 115,
144 (1999) (delineating the higher burden of proof required to prevail over
criminal, as opposed to civil, defendants).

n105. See Neuendorf, supra note 104, at 144 (arguing that criminal statutes
of limitations are shorter because the "proof beyond a reasonable doubt'
standard for criminal prosecutions necessitate a more vigilant preservation
of evidence and protection against stale claims); see also Adlestein, supra
note 67, at 255-56 n.240 (positing that shorter durations for criminal
statutes of limitations might initially have been the result of American
colonists' fears of state oppression, and concluding the statutory periods
"tended to become fixed" once they initially became established in American
law).

n106. See Heriot, supra note 92, at 954-55 (decrying courts' extensions of
limiting statutes through judicially-created mechanisms such as "discovery
rules," which allow actions to commence beyond the statutorily-prescribed
period if the injury is not discoverable until some point in time beyond the
applicable statutory period). "Prior to the advent of discovery rules,
statutes of limitation essentially operated like this: A specific length of
time was selected by the legislature to cover all cases that fell into a
particular category of substantive law." Id. (emphasis added).

n107. See Adlestein, supra note 67, at 252-60 (suggesting that there has
been very little legislative debate over the statutes' purposes because
society generally has been content with their operation since the
Limitations Act of 1623).

n108. See 51 Am. Jur. 2d Limitation of Actions 5 (1970) (reviewing the
"inhospitable reception" that statutes of limitations received by the
courts); Developments, supra note 78, at 1188 (noting that there are
"numerous references" documenting courts' initial hostility towards statutes
of limitations).

n109. See Ferguson, supra note 73, at 28-29 (noting that English courts,
especially beginning in 1698, discouraged use of the statute and
"increasingly permitted avoidance" of its limitations by interpreting it in
a very strict and narrow sense, so as to allow its application in only very
limited instances and capacities).

n110. See Adams v. Woods, 6 U.S. (2 Cranch) 336, 342 (1805) (recognizing the
inherent contradiction in allowing a prosecution for a non-capital offense
after the statutory deadline expired, while simultaneously upholding the
limiting period on capital crimes).

n111. See Wood v. Carpenter, 101 U.S. 135, 139 (1879) ("Statutes of
limitation are vital to the welfare of society and are favored in the law.
They are found and approved in all systems of enlightened jurisprudence ...
[the statutes] promote repose by giving security and stability to human
affairs.").

n112. See Bell v. Morrison, 26 U.S. (1 Pet.) 351, 360, 373-75 (1828)
(refusing to allow a claim to proceed against a partnership after the
relevant statute of limitations had expired, even though the plaintiff
claimed the defendants' debt was "pre-existing").

n113. See id. at 373-75 (ruling that allowing a claim after the expiration
of the limiting action defeats the spirit and intent of the statute of
limitations, i.e., preventing "the introduction of stale and dormant
demands, of long standing, and of uncertain proof").

n114. See United States v. Kubrick, 444 U.S. 111, 117 (1979) (confirming
that "the plea of limitations" is a "meritorious defense") (quoting Guaranty
Trust Co. v. United States, 304 U.S. 126, 136 (1938)); United States v.
Marion, 404 U.S. 307, 321 (1971) (choosing to apply the statute of
limitations, rather than the Sixth Amendment, to protect a defendant from
potential prejudice that may be caused when "passage of time ... may impair
memories, cause evidence to be lost, deprive the defendant of witnesses, and
otherwise interfere with his ability to defend himself"); Toussie v. United
States, 397 U.S. 112, 114-15 (1970) (declaring that limiting statutes are
"designed to protect individuals from having to defend themselves against
charges when the basic facts may have become obscured by the passage of time
and to minimize the danger of official punishment because of acts in the
far-distant past"); Bridges v. United States, 346 U.S. 209, 215-16, 226
(1953) (enforcing "a longstanding congressional "policy of repose' that is
fundamental to our society and our criminal law" and deciding to apply the
statute in the absence of "a clear [legislative] direction" to the contrary)
(quotation marks in original); Pendergast v. United States, 317 U.S. 412,
418 (1943) (noting that the statutes should be enforced even though "every
statute of limitations, of course, may permit a rogue to escape"); United
States v. Scharton, 285 U.S. 518, 522 (1932) (stating the statute of
limitations should be "liberally interpreted in favor of repose"); see also
Developments, supra note 78, at 1189 ("Modern American courts ... have
generally exhibited an attitude favorable to liberal imposition of the
statutory bar, both in civil and in criminal actions ... .").

n115. See Kubrick, 444 U.S. at 125 ("Statutes of limitations often make it
impossible to enforce what were otherwise perfectly valid claims. But that
is their very purpose, and they remain as ubiquitous as the statutory rights
or other rights to which they are attached or are applicable."). But see
Burnett v. New York Cent. R.R. Co., 380 U.S. 424, 428 (1965) ("This policy
of repose, designed to protect defendants, is frequently outweighed ...
where the interests of justice require vindication of the plaintiff's
rights.") (emphasis added).

Despite this author's recognition of an alleged rape victim's substantial
interests in justice, the Court's words in Burnett are specifically applied
to civil trials, as evidenced by the reference to "plaintiff's rights." Id.
It is unlikely the Court would apply this reasoning to a criminal
prosecution because a criminal defendant's interests outweigh the interests
of a defendant in a civil claim. See supra notes 104-105 (emphasizing a
defendant's interest in liberty); see also Heriot, supra note 92, at 919-20
("Indeed, the statute of limitations does sometimes produce results that
seem hypertechnical in view of its underlying policy concerns. Like all
rules, it is both overinclusive and underinclusive.").

n116. See Sink & Spice, supra note 12, at 1B (reflecting law enforcement's
reliance on DNA evidence to resolve heretofore unsolvable cases); Charges,
supra note 5 (indicating that DNA indictments "really show the power of DNA
evidence and how valued DNA testing has become for both law enforcement and
prosecutors").

n117. See Tracy & Morgan, supra note 33, at 670 (discussing the ""get tough'
on crime mentality" as a reason for some states' expansion in the number of
crimes that require submission of samples to DNA databanks).

n118. See supra notes 108-109 and accompanying text (reflecting judicial
disfavor of statutes of limitations).

n119. See supra notes 110-114 and accompanying text (detailing the courts'
shift in attitude in favor of applying statutes of limitations).

n120. See Unknown Man, supra note 4 (reflecting the feeling that criminals
who commit horrible crimes should be brought to justice and should not be
allowed to benefit from their anonymity); see also Adlestein, supra note 67,
at 260 (asking, rhetorically, why criminals should be afforded amnesty for
serious offenses, like manslaughter and rape, just by virtue of the passage
of time).

n121. See Betty DeRamus, Memories of Sexual Assault Have No Limits, So Why
Should the Crime?, Det. News, June 1, 2000, at 1 ("Being able to identify
and catch the perpetrator would ease the pain and trauma of the [rape]
victim. We'd all feel better."); Hanh Kim Quach, Senate Panel OKs Rape Bill,
Orange County Reg., June 29, 2000, at A4 (quoting a rape survivor as saying,
"six years (statute of limitations) is insulting to women who have been
raped"); Willing, supra note 4, at 1A (quoting a rape victim, whose case was
the subject of a DNA indictment, as saying, "I can now put some closure on
my personal matter and put something negative into something positive");
Heather Lourie, Clock May Cease to Aid Rapists, Orange County Reg., Jan. 16,
2000, at A1 (citing a rape survivor's frustration upon learning the case
against her alleged attacker had been time-barred: "What's the point of our
justice system? Why do they bother?").

n122. See B.G. Gregg, DNA Proposal Targets Rapists, Det. News, June 6, 2000,
at 1 (noting that indicting a criminal under the name "John Doe" would
provide police additional time to find the person who matched the DNA).

n123. See supra text accompanying notes 96-105 (describing generally the
purpose behind the statute of limitations).

n124. See Baughman, supra note 92, at 1115 ("Legislatures create statutes of
limitation for a purpose - namely, for granting repose to defendants and
increasing judicial efficiency by preventing stale claims."). Baughman goes
on to argue that allowing courts the discretion to determine when an action
"accrued," and therefore when the respective statute of limitations begins
to run, "undermines the legislative policies that were the basis of statutes
of limitations. Why would a legislature create" a limiting period if it were
possible to still bring the charge long after the statutory period expired?
Id. at 1116. See also Developments, supra note 78, at 1191 (asserting that
the constitutional protection against ex post facto laws "precludes the
removal of a bar already raised by criminal limitations"). A DNA indictment
essentially removes the statutory limiting period protecting criminal
defendants.

n125. See Diehl, supra note 35, at 436 (stating the proposition that if the
probative value of the DNA evidence is sufficiently high, "the defendant is
unlikely to be prejudiced by the disappearance of other evidence, at least
in the sense that any evidence the witness might have lost would be unlikely
to change the outcome of the trial"); Peter Slevin, For DNA Detectives, the
Workload is Exploding, Wash. Post, Nov. 14, 2000, at A3 (quoting the
District of Columbia's medical examiner, Jonathan L. Arden, as implying that
DNA invariably implicates only the guilty).

n126. Even this proposition is tenuous, however. Consider, for example, the
situation in which a person (Person <number>1) is in a crowded room (or
elevator or nightclub) and several of the person's hair fibers are
transferred to an adjacent person's (Rapist's) clothing, to which they
stick. If the Rapist proceeds to commit a sexual crime, the transferred hair
fibers from Person <number>1 are left at the crime scene by the Rapist. Then
law enforcement officials may hold Person <number>1 as culpable for the
crime, if the hair fibers are indeed recovered from the crime scene. See
Diehl, supra note 35, at 432 (indicating that hair is one source susceptible
to DNA testing).

n127. See id. at 438 (considering that the innocence of a hypothetical rape
suspect could be questioned when he passed by the crime scene prior to the
crime, inadvertently left blood there, and left before the crime commenced).

n128. See Michael O. Allen, Rape Kit Funding Pushed, N.Y. Daily News, Nov.
5, 2000, at 5 (reflecting a legislator's frustration with funding decisions
concerning the testing of "rape kits," which hospital personnel use to
gather and save DNA evidence when a woman alleges she has been raped).

n129. See Diehl, supra note 35, at 439-40 (noting and criticizing a
legislative proposal designed to protect defendants truthfully claiming
consent by limiting the DNA exception to the statute of limitations to
defendants who are unknown to the victim, under the theory that defendants
known to the victim are more likely to have consensual sex with the victim).

n130. The statute of limitations for rape in Massachusetts, for example, is
fifteen years. See Mass. Gen. Laws ch. 277, 63 (1992).

n131. The author recognizes the slim likelihood of a consenting woman
falsely to allege rape within such a brief time after the incident so as to
allow for collection of the DNA evidence. However, the purpose of this
Comment is not so much to measure such probabilities as it is to acknowledge
potential infirmities that may prejudice an otherwise innocent defendant.

Consider, for example, the hypothetical situation in which a married man
meets a woman at a bar, they both consume alcohol, and ultimately engage in
intercourse the same night. The man, feeling guilty after contemplating his
infidelity, leaves abruptly without intending any further contact with the
woman, even though he never considered the possibility she never consented.
If the woman has a different perspective and goes to the hospital
immediately after the man leaves and asserts her belief she was raped, and
the man's DNA is recovered, it may be entered into an offender database. If
the man is convicted of a violent offense, for example, twenty years later
and is matched to his DNA from the adulterous night, he might be held to
answer for the rape charge. In such an instance, he would likely find it
difficult to find witnesses with memories strong enough to bolster his
version of the evening's events. See, e.g., In a First, Rape Charge Based on
No-Name Warrant Issued for DNA, Biotech. Newswatch, Nov. 6, 2000, at 4
(citing San Francisco's chief public defender remarking, "It's difficult for
a defendant to mount a defense that is six years old"); Willing, supra note
4, at 3A (quoting a New York City defense attorney saying, "suppose the sex
was consensual. After 15 or 20 years, how's he supposed to find the
witnesses who can back his story up?").

n132. Recall that no two people have the same genetic make-up - except for
twins. See Rosenthal, supra note 57, at 197 (indicating identical twins have
identical genetic structure). Consider the hypothetical occurrence of a rape
linked to one of two identical twins many years after a crime occurred. In
this situation, the memories of witnesses who could provide an alibi for the
innocent suspect/brother are extremely important, but may have deteriorated
beyond recall by the time the prosecution commences. See Ochoa and Wistrich,
supra note 31, at 474-75 (detailing the rapid rate at which memory
deteriorates).

n133. See generally William C. Thompson, Accepting Lower Standards: The
National Research Council's Second Report on Forensic DNA Evidence, 37
Jurimetrics J. 405, 417-20 (1997) (suggesting various sources of error in
analyzing and interpreting DNA evidence and results).

n134. See Richard Lempert, After the DNA Wars: Skirmishing with NRC II, 37
Jurimetrics J. 439, 444 (1997) (listing as possible reasons leading to an
erroneous positive match: (1) the real criminal had DNA matching the
suspect's at the tested loci; (2) the expert forensic scientist lied in
their testimony; (3) the police failed to properly consider the relevant
suspect pool; (4) lab error; and, (5) intentional or inadvertent
contamination by police).

n135. See supra notes 91-92 and accompanying text (revealing the legislative
preference for statutes of limitations and establishing legislatures'
ability to modify the statute to adapt to modern circumstances).

n136. See supra notes 103-104 and accompanying text (outlining the
long-standing purpose of repose served by statutes of limitations and
reiterating potential causes of prejudice a criminal defendant would face
without such limiting actions); see also Developments, supra note 78, at
1187 (concluding that questions about the propriety of a statutory limiting
period should rely upon an analysis of the underlying purposes served by a
limiting action).

n137. See Developments, supra note 78, at 1189 (explaining that courts
strictly construe criminal statutes of limitations, even if it leads to an
"unreasonable result," because "courts are reluctant to create exceptions
where the legislatures have not explicitly done so").

n138. See id. at 1188 (maintaining that the most effective means of
resolving a legal controversy over interpretation of the rights and remedies
afforded by statutes of limitations lies in the hands of the legislating
entities). "On existing causes of action, the [duration of the limiting
period] may always be lengthened, even as to criminal prosecutions ... ."
Id. at 1190. Generally, a decision about the existence or duration of a
specific statute of limitations is a policy matter that lies within the
province of the legislatures, not the courts. See id. at 1179 (articulating
that legislatures have made similar policy decisions, generally speaking, in
excluding particular felonies, e.g., murder, manslaughter, arson, and
forgery, from the statute of limitations); Adlestein, supra note 67, at 252
("Criminal statutes of limitations are thus flexible instruments of
legislative policy and often reflect the social concerns of the particular
time and locality.").

n139. See Diehl, supra note 35, at 439 (suggesting courts have discretion to
ignore the statute of limitations if the prosecution meets a burden of
showing that a rape victim did not know her alleged attacker, thereby
avoiding the consent defense). Diehl further lists several methods by which
laboratories might reduce possible scientific error and recommends that
prosecutors split the DNA evidence with defendants to allow the defense to
perform its own testing. See id. at 440.

Legislatures also might consider, for example, tolling the statute of
limitations upon a showing of evidence corroborating the DNA test results to
support an accusation against a defendant who might otherwise avoid the
charge by raising a statute of limitations defense. See, e.g., Ernsdorff &
Loftus, supra note 82, at 132 (recommending that courts require independent
corroborating evidence to support adult victims of child sexual abuse who
bring civil actions against their alleged abusers based on repressed memory
retrieved through hypnosis as an adult).

Several legislatures already have started to re-examine their statutes
against the backdrop of DNA indictments. See, e.g., Dennis Chaptman, Lift
Time Limit for Rape Cases, Legislators Urge, Milwaukee J. & Sentinel, Nov.
4, 1999, at 20 (reporting that a bill abolishing the statute of limitations,
when fingerprint evidence is also retrieved, passed one chamber of the
Wisconsin legislature); Terry Hillig, Judge Declares Man a Habitual
Offender, Gives Him Life Sentence, St. Louis Post-Dispatch, July 27, 2000,
at B4 (reporting the legislature entertained proposals from prosecutors on
increasing the statutes of limitations for felony sex offenses); Deborah
Kalb, Torricelli Bill Would Abolish 5-Year Statute of Limitations for Rape,
Gannett News Service, June 14, 2000, available at 2000 WL 4401064 (reporting
legislative proposals to abolish the statute of limitations for rape,
introduced into the United States Senate); Limits of Prosecution, Det. News,
Mar. 29, 2000, at 14 (discussing legislative proposals to extend Michigan's
statute of limitations); Week in Review, Des Moines Reg., Feb. 20, 2000, at
5 ("Rep. Charles Larson ... and Sen. Andy McKean ... say the three-year
statute of limitations in rape cases needs to be reconsidered in light of
technological advances."); Willing, supra note 4, at 1A ("At least seven
other states [in addition to New Jersey, Florida, and Nevada] are
considering eliminating or extending their statutes of limitation for crimes
that can be solved by DNA evidence.").

n140. See Sex Offenders and Statutes of Limitations (CNNfn television
broadcast, Feb. 24, 2000) (transcript on file in Lexis-Nexis Library,
Transcripts File) (listing New Jersey, Nevada, and Florida as states that
have eliminated their statutes of limitations for rape); Heather Lourie, DNA
Alters Rape Law, Orange County Reg., Aug. 26, 2000, at A1 (reporting
enactment of a law in California eliminating the statute of limitations if
investigators analyze the sample within two years of the crime).

n141. See infra notes 298-301 and accompanying text (finding that a delay of
five years or greater between the indictment and an arrest will provide the
DNA indictee with a potential speedy trial defense).

n142. See Inman & Rudin, supra note 26, at 20 (describing the historical
development of DNA profiling).

n143. A simple LEXIS search in the "Law Reviews, Combined" database for the
term "DNA fingerprinting" reveals at least 250 documents containing the term
(performed Nov. 25, 2000).

n144. See Connors, supra note 54, at 889 (describing forensic DNA analysis
through a comparison with fingerprint evidence).

n145. See supra note 125 and accompanying text (citing claims that DNA
results are so accurate as to outweigh any prejudice to a defendant).

n146. See Inman & Rudin, supra note 26, at 6 (comparing and contrasting
dermatoglyphic fingerprints with current DNA typing methods).

n147. See Joe Nickell & John F. Fischer, Crime Science 112 (1999) (asserting
that the Chinese use of fingerprinting was the "earliest recognition of the
uniqueness of fingerprints and their suitability for personal
identification").

n148. See Annita T. Field, Fingerprint Handbook 3 (1959) (listing a
chronology of the use of fingerprints).

n149. See id. at 4 (noting that Mayer determined that skin ridges were
unique to each individual and that the similarities in fingerprints were
very close in some people).

n150. See Nickell & Fischer, supra note 147, at 113 (noting an article
published by a physician, Dr. Henry Faulds, sparked a debate with Herschel
over who deserved credit for pioneering the fingerprinting technique).

n151. See Field, supra note 148, at 4 (describing how researcher Herman
Weckler compared and published a print of his own palm taken in 1856 with
another print taken in 1897).

n152. See Nickell & Fischer, supra note 147, at 114 (noting that Henry,
Herschel's successor in India, further developed Herschel's scholarship to
create a workable classification system). Henry completed his research in
1899 and published a book the next year. See id. at 115-16.

n153. See id.

n154. See id. (noting the FBI has modified the system to adapt it to the
agency's changing needs).

n155. See id. at 115 (retelling the story of "The Two Will Wests," a
situation which fingerprinting advocates exploited to demonstrate that
fingerprints could "infallibly distinguish one man from others").

n156. See id. (explaining that the two men were actually identical twins,
although they denied any relationship to each other).

n157. See id. (noting that Leavenworth reportedly transferred to a
fingerprint identification system "the next day"); see also id. at 115-16
(listing New York's Sing Sing Prison, the United States Army, Navy and
Marine Corps as some of the organizations following Leavenworth's lead). In
fact, there were so many fingerprint technicians employed that they created
the International Association of Identification in 1915. See id.

Prior to adopting a fingerprint-based system, prisons and law enforcement
agencies used the bertillonage method of identification. See Nickell &
Fischer, supra note 147, at 114 (describing the process as a system of
anthropometry, which is the science of measuring the human body, by taking
measurements of the length of the left arm, length and breadth and diameter
of the skull, length of left middle and little fingers, length of the left
foot, length of the right ear, and recording of other physical
characteristics for each individual).

n158. See Field, supra note 148, at 5 (recognizing the foresight of St.
Louis as having the first police department in the country to embrace
fingerprinting).

n159. See Nickell & Fischer, supra note 147, at 115-16 (detailing further
the government's acceptance of fingerprint analysis by noting that Congress
established the FBI's Identification Division in 1924 to serve as the
central repository of all fingerprint records obtained by the FBI).

n160. 296 N.E. 1077 (Ill. 1911).

n161. Id. at 1081.

n162. See id. (relying upon encyclopedias and treatises on criminal law as
the basis for confirming the trial court's decision).

n163. See, e.g., Michael J. Saks, Merlin and Solomon: Lessons from the Law's
Formative Encounters with Forensic Identification Science, 49 Hastings L.J.
1069, 1085-86 (1998) (criticizing the oft-cited hypothesis, upon which the
Jennings court accepted fingerprint evidence as reliable, that fingerprints
from two individuals can never be the same). Saks argues it is impossible to
declare conclusively that no two fingerprints are the same without comparing
all possible samples. See id. at 1086 ("It mattered not that the hypothesis
never could be proved.").

n164. See id. at 1085 (noting that once the courts accepted fingerprint
evidence as being uniquely identifying, fingerprint impressions became the
standard form of identification evidence).

n165. See State v. Cerciello, 90 A. 1112, 1115 (N.J. 1914) (holding that
fingerprint evidence could be admitted, although the court was unaware if it
was actually offered into evidence).

n166. See People v. Roach, 109 N.E. 618, 623 (N.Y. 1915) (concluding that
fingerprint evidence was reliable because of the progress made by scientists
and police investigators throughout the world).

n167. See State v. Kuhl, 175 P. 190, 195-96 (Nev. 1918) (relying on science
and expert witness testimony as the basis for admitting fingerprint
evidence).

n168. See McGarry v. State, 200 S.W. 527, 528 (Tex. Crim. App. 1918)
(holding that fingerprint evidence did not violate the defendant's rights
and the evidence could be admitted).

n169. See, e.g., United States v. Kelly, 55 F.2d 67, 70 (2d Cir. 1932)
("But, as a means of identification, [fingerprinting] is just as useful and
important where the offense is a misdemeanor [as it is in felony cases] ...
It can really be objected to only because it may furnish strong evidence of
a man's guilt.").

n170. See Richard Saferstein, Criminalistics: An Introduction to Forensic
Science 412 (5th ed. 1995) ("Today the fingerprint is the pillar of modern
criminal identification.").

n171. See M.C. Dransfield, Annotation, Fingerprints, Palm Prints, or Bare
Footprints as Evidence, 28 A.L.R. 2d 1115 (1953) ("So general is the use of
fingerprint identification and so accurate are the results therefrom that in
many cases it has been expressly declared that the courts will take judicial
notice thereof.").

n172. See Saks, supra note 163, at 1085 ("Once the courts accepted
fingerprint evidence as being uniquely identifying, fingerprints became an
icon for every other kind of identification evidence - tool marks, bullets,
bite marks, handwriting, voiceprints, shoe prints, broken glass, and so
on.").

n173. See NRC I, supra note 45, at 29 (describing the "usefulness" of
comparing DNA samples with fingerprints, as each provides an
"individualizing characteristic" that derives from the "personal uniqueness
of the patterns").

n174. See Tracy & Morgan, supra note 33, at 636-37 (reflecting the value of
both procedures through the claim that DNA is "the next great breakthrough
since fingerprints").

n175. See generally Field, supra note 148, at 3-6 (revealing the longevity
of the use of dermatoglyphic fingerprinting through a chronological listing
of its use in identifying criminal suspects).

n176. See Tracy & Morgan, supra note 33, at 636 (indicating the need to
address significant policy questions regarding DNA testing because, "as with
fingerprints, it looks like DNA testing and associated databases are here to
stay").

n177. For a more specific treatment of the possibility that DNA indictments
impede defendants' abilities to receive a fair trial, see infra Part IV.D.

n178. See Commonwealth v. Curnin, 565 N.E.2d 440, 441 (Mass. 1991) (refusing
to admit DNA evidence at a rape defendant's trial because the probability of
the defendant's DNA randomly matching the crime scene evidence at 1 in 59
million "must have a strong impact on a jury"); NRC I, supra note 45, at 161
(insisting that DNA evidence, like all other laboratory work, is subject to
error). The National Research Council found the potential for juror misuse
of DNA evidence to be so potentially damaging to a defendant that it
officially recommended a study to develop methods of decreasing the
misinterpretation of DNA evidence. See National Research Council, The
Evaluation of Forensic DNA Evidence 204 (1996) [hereinafter NRC II]
("Recommendation 6.1: Behavioral research should be carried out to identify
any conditions that might cause a trier of fact to misinterpret evidence on
DNA profiling and to assess how well various ways of presenting expert
testimony on DNA can reduce such misunderstandings.").

n179. See Jonathan J. Koehler et. al, The Random Match Probability in DNA
Evidence: Irrelevant and Prejudicial?, 35 Jurimetrics J. 201, 212 (1995)
[hereinafter Koehler] (maintaining jurors may "overweight" very small
probabilities that an innocent defendant's DNA would randomly match genetic
material from the crime scene because: (1) people tend unfairly to give more
evidentiary weight to statistics, like extremely small DNA random match
probabilities, because they remain vivid and memorable when juries go to
deliberate; and (2) people also tend to "combine probabilistic items of
evidence by averaging them").

The authors' article supports this hypothesis with compelling data. The
authors conducted two studies in which they provided mock jurors and
laypersons with a fact pattern typical in a criminal murder prosecution. See
id. at 212-13 (describing the protocol of the study). When the fact pattern
presented random match probability evidence revealing that an innocent
defendant's DNA would match DNA from the crime scene in a probability of 1
in 1 billion, the jurors voted to convict two or three times more often than
a control group of mock jurors not presented with this statistical evidence.
See id. at 213-14 (breaking down study results by control group). More
importantly, the study found "little impact" on the jurors' proclivity to
convict even when they possessed evidence of a laboratory error rate,
suggesting a relatively high potential for error in analysis and
interpretation of the DNA samples, several orders of magnitude higher than
the random match probability. See id. at 214 (describing the low impact of
providing the laboratory error rate to jurors).

Furthermore, juror misperceptions about the reliability of DNA evidence in
establishing a defendant's guilt might be due, at least in part, to
prosecutors' arguments that the science behind DNA analysis renders it
superior to fingerprint evidence. See NRC I, supra note 45, at 161 (chiding
attorneys who "oversell" DNA evidence).


Prosecution experts, on the other hand, occasionally misstate or let
prosecutors misstate the import of their testimony - suggesting, for
example, that if a defendant's DNA matches DNA collected at a crime scene
and there is a one in a million chance that a randomly selected person would
have matching DNA there is only a one in a million chance that someone other
than the defendant committed the crime. There are even cases where
prosecution experts have suggested that false positive error is impossible
in DNA analysis.

Lempert, supra note 134, at 441-42; see, e.g., People v. Fishback, 829 P.2d
489, 492 (Colo. Ct. App. 1991) (restating the prosecution expert's testimony
insisting the DNA testing process used was "failsafe"); see also Jonathan J.
Koehler, Error and Exaggeration in the Presentation of DNA Evidence, 34
Jurimetrics J. 21, 23 & n.8 (1993) (listing further examples of misleading
and inaccurate testimony by prosecution expert witnesses regarding the
reliability of DNA analysis).

n180. See NRC I, supra note 45, at 157 (concluding that "as a personal
identification method, fingerprinting is the definitive forensic
technique"). Several facts substantially support the assertion that
fingerprinting is more reliable than DNA evidence.


[Fingerprinting] has almost 100 years of development, which has established
empirically that a person has unique fingerprints; fingerprints can even
distinguish between twins. Fingerprints are easily detected and developed,
and large electronic fingerprint databases exist all over the world. A
fingerprint is a directly observable impression that does not generally
involve extensive chemical or biochemical manipulation. Rarely do
fingerprint experts differ in conclusions reached after examination of
fingerprint evidence.

Id.

n181. See id. at 161 (clarifying that DNA identifications will not be as
reliable as fingerprinting "until technology and [DNA] databanks improve").

n182. See United States v. Kelly, 55 F.2d 67, 70 (2d Cir. 1932) (reasoning
fingerprint evidence is so conclusive that "it can really be objected to
only because it may furnish strong evidence of a man's guilt").

n183. See id. at 113 (finding that fingerprints can lead to a certain match,
while RFLP DNA analysis might require the examination of further loci not
contained in the database, following an initial match).

n184. See Inman & Rudin, supra note 26, at 6 (observing that with
dermatoglyphic fingerprints, unlike with DNA, "there are no missing pieces
of information").

n185. See id. (clarifying that the comparison between DNA and fingerprints
might be more accurately represented through a description of DNA as a
"partial fingerprint" because it may not be necessary to have all DNA
information to make a positive identification).

n186. See id. (noting that, as with partial latent fingerprint samples,
scientists may not require the full breadth of DNA's information "to be
convinced of the individuality of a DNA profile").

n187. Compare id. (suggesting that an analysis of nine loci within a gene
might be sufficient to draw a conclusive inference that two DNA samples
originated from the same source), with Dr. Jennifer Smith, Remarks at the
Meeting IX Proceedings of the National Commission on the Future of DNA
Evidence, Comments Regarding R & D Report (Apr. 9, 2000), at
http://www.ojp.usdoj.gov/nij/dnamtgtrans9/trans-e.html (last visited Oct.
17, 2000) (commenting on a suggestion to increase the standard number of
loci presently analyzed from 13 to 20, remarking, "I guess I would just
leave [the standard number of 13] alone, is what I'm saying, because we
cannot get anyone to say [the number required to conclusively establish a
match is] 12 loci, it's 13 loci, it's ten loci, so to avoid numbers in
general - we are doing - the community is doing the best it can with the 13.
It's sometimes difficult to get everyone to do the 13."). Dr. Smith, the
manager of the DNA Analysis Unit for the FBI laboratory, further revealed
the disagreement over the number of loci that scientists should test in
remarking:


I would say right now it is as good as fingerprinting, personally. When I
walk into court and I testify this individual is the source of this DNA, to
me that's the same as - if not better than a fingerprint in some instances
... [But scientists advocating an increase in the standard number of loci
tested are] saying [the accuracy of DNA typing] will get better and
eventually it will be as good as fingerprinting.

Id. The discussion between Dr. Smith and the members of the National
Commission reveals the difficulty and inconsistency in reaching a consensus
regarding a standard number of loci that the scientific community should
employ before drawing conclusions as to the identity of a DNA sample's
source. See generally id. (citing comments with varying recommendations for
a standard number of loci ranging all the way from ten to fifty).

A "locus," with respect to DNA testing, is "the specific physical location
of a gene on a chromosome." See Inman & Rudin, supra note 26, at 168.

n188. See NRC I, supra note 45, at 112 (declaring that police find latent
fingerprints more often than they find DNA-containing fluid samples).

n189. See supra note 33 and accompanying text (delineating the scope of this
Comment, emphasizing the focus on rape and other sexual crimes).

n190. See Diehl, supra note 35, at 432 (recognizing the frequency with which
rapists leave genetic samples at the crime scene).

n191. See Tracy & Morgan, supra note 33, at 655 (concluding "it is doubtful"
that local law enforcement agencies have the resources to perform a full DNA
investigation at every crime scene); cf. NRC I, supra note 45, at 112
(indicating that the cost of collecting DNA from every crime scene is
prohibitive).

n192. See NRC II, supra note 178, at 203 (implying laypersons, serving as
triers of fact, might be unduly influenced by the presentation of DNA
evidence).

n193. See NRC I, supra note 45, at 112 (contending that, "where it exists,
DNA evidence will often be more probative than fingerprints, in that the
presence of body fluids is harder to attribute to innocuous causes")
(emphasis added). The NRC I report further indicated that "that is
especially true in rape cases, in which positive identification of semen in
the vagina is virtual proof of intercourse (although it leaves open the
issue of whether it was consensual)." Id. Notably, the NRC I report provided
only a parenthetical reference to the issue of consent. This conclusory
assertion, albeit qualified, provides a prime example of a statement that
might unfairly influence the debate over DNA's probative value.

n194. See Asplen, supra note 40, at 148 ("DNA is similar to fingerprint
analysis in how the matches are determined."); NRC I, supra note 45, at 24
(concluding that techniques of DNA analysis are analogous to
well-established forensic techniques, including fingerprint examinations).

n195. See Asplen, supra note 40, at 148 (comparing the objectively
descriptive factors of each type of evidence).

n196. Compare NRC I, supra note 45, at 17-18 (discussing the impact of the
expansion of the Automated Fingerprint Identification System (AFIS) central
fingerprint database in solving tens of thousands of additional crimes),
with Tracy & Morgan, supra note 33, at 642 (delineating the ideal process
for searching a central DNA database to match an unknown sample with an
identifiable DNA source).

n197. See NRC I, supra note 44, at 111 (explaining that with the development
of the AFIS fingerprint database, law enforcement officials now can compare
an unidentified latent fingerprint with millions of known patterns within
minutes); Tracy & Morgan, supra note 33, at 640-41 (elaborating on federal
initiatives designed to increase the efficiency and efficacy of DNA analysis
in criminal investigations, including the National DNA Index System (NDIS),
which provides investigators with an enhanced tool in violent crimes
investigations by permitting law enforcement agencies at all levels of
government to submit DNA samples to a national database).

n198. See NRC I, supra note 45, at 118 ("Ordinary fingerprint databanks have
low variable costs and high fixed costs, and DNA typing databanks have high
variable costs and comparatively low fixed costs.").

n199. See id. at 117 (revealing that the costs associated with collecting
dermatoglyphic prints are essentially limited to the cost of personnel time
in taking and filing the fingerprints).

n200. See Tracy & Morgan, supra note 33, at 667 (using the industry rate of
$ 50 per test for a single DNA sample to estimate the cost of testing every
federal inmate in custody); NRC I, supra note 45, at 117 (calculating the
cost of each component of the analysis and concluding that RFLP DNA analysis
costs approximately $ 100-150 per sample).

n201. See, e.g., Kim Kozlowski, Michigan Lags in Catching Rapists: Lack of
Resources Creates State Backlog in DNA Testing, Det. News, May 30, 2000, at
1E (citing a National Bureau of Justice statistic indicating that two-thirds
of DNA laboratories across the country possess backlogs of unanalyzed
samples); LaTour, supra note 45, at B1 (reporting that New York police have
insisted on reopening 12,000 unsolved rape cases, each with DNA samples that
require analysis); Senator Proposes DNA Indictments, AP Newswires, June 5,
2000 (quoting a state legislator who indicated that the backlog of
unanalyzed DNA samples in the Michigan State Police crime laboratory stands
at 12,000 and 15,000 samples); Quach, supra note 121, at A4 (reporting
California's backlog of at least 18,000 samples from rape cases alone).

n202. See M.C. Dransfield, Annotation, Fingerprints, Palm Prints, or Bare
Footprints as Evidence, 28 A.L.R. 2d 1115, 1130-31 (1953) (finding that
fingerprint identification results are so accurate that many courts have
taken judicial notice of their reliability and accuracy); Jonathan
Greenberg, DNA Fingerprinting: A Guide for Defense Counsel, 1989 Army Law.
16, 17 (observing that attacking the overall admissibility of DNA evidence
is not a worthwhile endeavor for defense counsel).

n203. See M.C. Dransfield, Annotation, Fingerprints, Palm Prints, or Bare
Footprints as Evidence, 28 A.L.R. 2d 1115, 1121 (1953) (announcing that the
most contentious issue regarding expert opinion on fingerprint evidence
relates to the form in which the expert must express the opinion, i.e.,
whether the expert may testify conclusively that a suspect left the latent
fingerprint sample); Kaye, supra note 70, at 168 (contending that "the
search for a procedure to convey - intelligibly, accurately and fairly - the
probative value of ... [DNA] evidence has proved challenging").

n204. See Thompson, supra note 133, at 417 (criticizing the National
Research Council's recommendations on the standards by which to measure
probabilities of a random match and suggesting alternative methods as more
accurate and fair to a criminal defendant).

n205. See NRC II, supra note 178, at 49 (providing the commission's task
statement, which generally charges NRC II with updating the NRC I report).

n206. See NRC I, supra note 45, at vii-viii (describing the formation of NRC
I).

n207. See NRC II, supra note 178, at 49 (describing NRC II's task statement
as a relatively vague charge). Although the NRC II task statement spoke
mainly in generalities, the statement notably emphasized the specific need
to revamp the National Research Council's stance on the interpretation and
explanation of probability statistics. See id. "The committee ... will also
specifically rectify those statements regarding statistical and population
genetics issues in the previous report that have been seriously
misinterpreted or led to unintended procedures." Id.

n208. See NRC I, supra note 45, at 29, 31 (describing the differences
between DNA typing and dermatoglyphics).

n209. See Rosenthal, supra note 57, at 197 (noting that identical twins have
identical genetic patterns).

n210. See NRC I, supra note 45, at 29-30 (demonstrating that fingerprint
forensics depends on nongenetic physical manifestations and explaining that
DNA relies exclusively on genetic variation, which is absent in twin
siblings).

n211. See infra Part IV.D (discussing the potential for DNA and its
concomitant evidentiary infirmities to impair an accused's defense).

n212. See, e.g., Barbara Ross et al., Indictment by DNA Genetics Get an
Unknown Man Charged as E. Side Rapist, N.Y. Daily News, Mar. 16, 2000, at 7
("All cops need [after the DNA indictment] is a name to match with the
[genetic] evidence, and they can nail the rapist.").

n213. See Chaptman, supra note 139 (quoting a government official who
remarked, "if you've got the DNA, you know it's the guy."); Lempert, supra
note 134, at 460 ("investigations typically stop when police think they have
the culprit").

n214. See Lempert, supra note 134, at 461-62 (criticizing law enforcement's
failure to consider all subjects within the relevant suspect pool in lieu of
undue reliance on, and confidence in, DNA samples matching at a particular
number of loci). Lempert considers a scenario in which "fairly suspected"
persons with similar genetic structures, such as close relatives, escape
justice at the cost of an innocent person's liberty, because investigators
discontinued the investigation into other suspects after matching the crime
scene sample with the DNA indictee's sample. See id.

n215. See id. at 456-57 (indicating a defendant's random match probability
of one in 50 million does not rule out the possibility that the father,
brothers, cousins, and uncles with DNA matching the defendant's at the
relevant loci may have committed the crime).

n216. See id. at 460-61 (recommending police should extend their
investigations beyond relatives who are "plausible suspects," even when
eyewitness testimony corroborates matching DNA results between the crime
scene and the suspect).

n217. [Urging the state to] replace its random match statistic [between the
crime scene sample and the suspect] with a statistic showing the likelihood
that at least one named relative [named by the suspect as another possible
source of the DNA] has DNA like the defendant's unless the state excludes
each named relative through DNA testing [of additional loci] or exculpatory
non-DNA evidence of a sort unlikely to implicate the relatives implicates
the defendant.

Id. at 461.

n218. Although prosecutors indeed may have indicted fingerprints in the
past, this author's research did not reveal any such instances.

n219. If it appears from the complaint, or from an affidavit or affidavits
filed with the complaint, that there is probable cause to believe that an
offense has been committed and that the defendant has committed it, a
warrant for the arrest of the defendant shall issue to any officer
authorized by law to execute it.

Fed. R. Crim. P. 4(a)

n220. A grand jury issues indictments, while prosecutors independently
charge suspects through a criminal information. See Black's Law Dictionary,
supra note 5, at 776, 783 (defining an indictment as a "formal written
accusation of a crime, made by a grand jury and presented to a court for
prosecution against the accused person," and a criminal information as "[a]
formal criminal charge made by a prosecutor without a grand-jury
indictment").

n221. See Fed. R. Crim. P. 9(a) ("Upon the request of the attorney for the
government the court shall issue a warrant for each defendant named in an
information supported by a showing of probable cause under oath as is
required by Rule 4(a), or in an indictment."). A finding of probable cause
requires "[a] reasonable ground to suspect that a person has committed ... a
crime ... ." Black's Law Dictionary, supra note 5, at 1219. This standard
"amounts to more than a bare suspicion but less than evidence that would
justify a conviction." Id.

n222. See, e.g., Commonwealth v. Angiulo, 615 N.E.2d 155, 162 (Mass. 1993)
(holding that the requirement of probable cause to issue an indictment "is
justly regarded as one of the securities to the innocent against hasty,
malicious, and oppressive public prosecutions") (quoting Jones v. Robbins, 8
Gray 329, 344 (1857)).

n223. See Dedman, supra note 5, at A8 (defining "John Doe" indictments as
the vehicles through which DNA indictments take effect).

n224. See Appellate Review, supra note 8 (reporting that a California
appellate court will issue a ruling on the validity of DNA indictments that
may be appealed to the California Supreme Court or even the U.S. Supreme
Court).

n225. See NRC I, supra note 45, at 157 (establishing fingerprint analysis as
the most reliable form of forensic evidence).

n226. See United States v. Kelly, 55 F.2d 67, 70 (2d Cir. 1932) (noting that
a fingerprint "is not in itself a badge of crime").

n227. See State v. Maya, 493 A.2d 1139, 1145 (N.H. 1985) (finding
fingerprint evidence sufficient to establish probable cause for a search
warrant); Hughes v. Superior Court, 209 Cal. Rptr. 861, 865 (Cal. Ct. App.
1985) (making a fact-specific distinction between a previous case holding
that fingerprint evidence alone failed to establish probable cause to bind
the defendant over for trial); People v. Thrower, 670 P.2d 1251, 1253 (Colo.
Ct. App. 1983) (recognizing police officers only satisfied the probable
cause requirement to sustain a search warrant after they obtained
fingerprints linking defendant to the crime); People v. Summers, 426 N.E.2d
937, 940 (Ill. App. Ct. 1981) ("To sustain a conviction solely on
fingerprint evidence, fingerprints corresponding to the fingerprints of the
defendant must have been found in the immediate vicinity of the crime under
such circumstances as to establish beyond a reasonable doubt that the
fingerprints were impressed at the time the crime was committed." (quoting
People v. Rhodes, 422 N.E.2d 605, 608 (Ill. 1981), rev'g People v. Van Zant,
405 N.E.2d 881 (Ill. 1980))); State v. Helms, 12 S.E.2d 243, 245 (N.C. 1940)
(holding that fingerprint evidence matching the defendant's taken from a
windowsill in a breaking and entering case was "properly admitted" and
"sufficient to take the case to the jury"); People v. Les, 255 N.W. 407,
408-10 (Mich. 1934) (ruling the discovery of the defendant's palm print on a
window sill through which an intruder unlawfully gained access to the home
sufficiently established probable cause to link the defendant to the crime).

n228. See id.

n229. It is possible that prosecutors, prior to DNA indictments, did not
conceive of the idea of indicting fingerprints. However, prosecutors have
not chosen to pursue this means of law enforcement despite widespread media
attention of DNA indictments. See supra note 218 (suggesting prosecutors
have never attempted a fingerprint indictment); see also supra note 12
(listing media reports describing DNA indictments).

n230. See Unknown Man, supra note 4 (indicating prosecutors owe a duty to
rape victims to pursue every means possible of bringing the attacker to
justice).

n231. See Kravets, supra note 6 (quoting Johnny Griffin III, Paul Robinson's
attorney, claiming prosecutors will "start doing it for everything" if
courts uphold DNA indictments).

n232. See id. (quoting Griffin saying, "there will be no statute of
limitations" and implying "the criminal justice system would be turned on
its head" if courts validate DNA indictments).

n233. See Neuendorf, supra note 104, at 144 (recognizing the special
protections afforded criminal defendants through a very high prosecutorial
burden of proof).

n234. See supra Part II.D (arguing DNA indictments undermine the policies
justifying statutes of limitations).

n235. See Adlestein, supra note 67, at 263-67 (arguing courts should have
greater discretion in applying statutes of limitations because the Sixth
Amendment's Speedy Trial clause ultimately provides relief for defendants
aggrieved by stale evidence and an inability to fairly present a vigorous
defense).

n236. U.S. Const. amend. VI.

n237. See Klopfer v. North Carolina, 386 U.S. 213, 223 (1967) (tracing the
development of the speedy trial guarantee in American courts, finding their
genesis in the "English law heritage").

n238. See Ronna A. Laidley, Note, The Filing of an Indictment Against a
Criminal Defendant Activates His Sixth Amendment Right to a Speedy Trial,
Notwithstanding the Fact that the Defendant Had No Knowledge of the
Indictment Until the Time of His Arrest, 24 St. Mary's L.J. 595, 597 (1993)
(tracing the history of the Speedy Trial clause).

n239. Klopfer, 386 U.S. at 223 ("We will sell to no man, we will not deny or
defer to any man either justice or right") (quoting Magna Carta, c. 29 (c.
40 of King John's Charter of 1215 (1225)), translated and quoted in Coke,
The Second Part of the Institutes of the Laws of England 45 (Brooke, 5th
ed., 1797)).

n240. See Klopfer, 386 U.S. at 223-24 (citing the writings of Coke, which
emphasized the detainee's liberty interests).

n241. See id. at 224 (quoting Coke as saying that the justices "have not
suffered the prisoner to be long detained, but at their next coming have
given the prisoner full and speedy justice ... without detaining him long in
prison").

n242. Id. at 225.

n243. See Daniel A. Conforti, Note, Doggett v. United States: Breathing New
Life Into the Right to a Speedy Trial, 21 W. St. U. L. Rev. 619, 619-20
(1994) (discussing the influence of Coke's writings on Thomas Jefferson and
John Rutledge); see also Klopfer, 386 U.S. at 225 (recognizing that Coke's
writings were the standard course of study for students of the law at that
time).

n244. See Klopfer, 386 U.S. at 225 (explaining that the Virginia Declaration
of Rights of 1776, as drafted by George Mason, stated that "a man hath a
right ... to a speedy trial ... .").

n245. See id. at 225 n.21 (listing Delaware, Maryland, Pennsylvania, and
Massachusetts, and noting that Kentucky, Tennessee, and Vermont also adopted
speedy trial guarantees upon their admission to the Union during the
eighteenth century).

n246. See Dickey v. Florida, 398 U.S. 30, 41 n.2 (1970) (Brennan, J.,
concurring) (stating "records of the intent of [the Speedy Trial Clause's]
Framers are sparse," but noting the Framers appeared to have assigned the
Clause the same value it received in the English common law); Laidley, supra
note 238, at 611 n.85 (indicating that the records reveal only one passage
where the First Congress considered the Speedy Trial clause, despite copious
debate on the other Bill of Rights proposals).

n247. See United States v. Marion, 404 U.S. 307, 314 n.6 (1971) (reasoning
that James Madison probably relied on the Virginia Declaration of Rights as
a "model" for drafting the Sixth Amendment).

n248. See Klopfer, 386 U.S. at 226 (emphasizing that the right is considered
fundamental); see also Laidley, supra note 238, at 598 n.19 (indicating that
every state except New York, Nevada and North Carolina has incorporated the
right to a speedy trial into its state constitution).

n249. See Steven A. Saltzburg & Daniel J. Capra, American Criminal Procedure
998 (West 6th ed. 2000) (providing a brief overview of the history leading
to modern-day application of the Speedy Trial clause).

n250. See id.

n251. See id.

n252. See, e.g., Laidley, supra note 238, at 599-600 (claiming that the
Clause also protects societal interests such as the "desire to reduce the
possibility that the accused will commit further crimes" while awaiting
prosecution).

n253. See Beavers v. Haubert, 198 U.S. 77, 87 (1905) (declaring that the
Speedy Trial clause "secures rights to a defendant").

n254. See United States v. Levine, 658 F.2d 113, 119 (3d Cir. 1981)
(maintaining that the rationale of the Sixth Amendment's speedy trial
guarantee overlaps with that of limiting statutes because they both
primarily protect the interests of defendants, but also simultaneously
protect society from unincarcerated offenders and provide relief to
prosecutors who might otherwise be required to press claims so old they
would inhibit the government's capacity to bring the case).

n255. See Brian P. Brooks, Note, A New Speedy Trial Standard for Barker v.
Wingo: Reviving a Constitutional Remedy In An Age of Statutes, 61 U. Chi. L.
Rev. 587, 597 (1994) ("The Sixth Amendment was adopted against a backdrop of
English and early colonial practice in which criminal prosecutions had been
conducted with "unfairness,' "brutality,' and the "savage satisfaction' of
the courts in their oft-exercised power of life and death over criminal
defendants.") (quoting Francis H. Heller, The Sixth Amendment 13 (1951));
Conforti, supra note 243, at 634 (arguing that "historical precedent"
requires that the defendant's liberty interests are implicated before the
speedy trial guarantee attaches); Laidley, supra note 238, at 611-12
(suggesting there is an "historical mandate" in the Speedy Trial Clause's
protection of personal liberty); see also United States v. Provoo, 17 F.R.D.
183, 197 (D. Md.), aff'd, 380 U.S. 857 (1955) (determining the speedy trial
guarantees in the earliest American provisions were designed to protect
defendants against undue incarceration based on the fact that these American
provisions borrowed heavily, if not verbatim, from the British Habeas Corpus
Act of 1679).

n256. See Brooks, supra note 255, at 587 (recognizing that the basis for the
speedy trial guarantee is "slippery" and "amorphous") (quoting Barker v.
Wingo, 407 U.S. 514, 522 (1972)).

n257. See, e.g., United States v. Marion, 404 U.S. 307, 320 (1971).
"Obloquy" is "the state or condition of being ill spoken of; disgrace or bad
repute." Black's Law Dictionary, supra note 5, at 1104.

n258. See Neuendorf, supra note 104, at 144 (stressing that "the stigmatism
that goes along with the assertion of something as serious as sexual abuse
has a very damaging effect"); Brooks, supra note 255, at 596-98 (analyzing
the three interests protected by the Speedy Trial Clause).

n259. See supra Part II.B (analyzing the reasons giving rise to the statute
of limitations).

n260. See Brooks, supra note 255, at 597 (arguing that this reasoning "was
not as central to the original understanding of the Sixth Amendment," but
recognizing that modern judicial analysis has afforded it the most attention
of the three interests).

n261. See Kravets, supra note 6 (suggesting Paul Robinson's case and similar
cases in the future might find final adjudication in the Unites States
Supreme Court).

n262. Dickey v. Florida, 398 U.S. 30, 40 (1970) (Brennan, J., concurring)
(cataloguing the historical development of the Sixth Amendment).

n263. See id. (attempting to define more specifically the concrete rights
guaranteed by the Speedy Trial Clause by analyzing its historical context).

n264. See 18 U.S.C. 3161 (2000) (delineating time limits and exclusions to
ensure a speedy trial for a defendant).

n265. See United States v. Bullock, 551 F.2d 1377, 1380-81 (5th Cir. 1977)
(comparing the Act's legislative intent "to implement the Sixth Amendment's
goal of insuring that those who are accused of crime are brought speedily to
trial" with the purpose for a similar local court rule).

n266. See United States v. Loud Hawk, 474 U.S. 302, 304 n.1 (1986) ("The
more stringent provisions of the Speedy Trial Act, 18 U.S.C. 3161 et seq.,
have mooted much litigation about the requirements of the Speedy Trial
Clause as applied to federal prosecutions."). Note, however, that the
statutory Speedy Trial Act was not enacted until January 3, 1975, and thus
cannot account for the Clause's lack of judicial priority prior to that
date. See Bullock, 551 F.2d at 1380 (providing the historical context of the
Speedy Trial Act).

n267. 383 U.S. 116 (1966).

n268. See supra Part III.B (articulating that the Speedy Trial Clause
protects a defendant's interests in avoiding excessive pre-trial
incarceration, avoiding public obloquy, and avoiding the prejudice of
defending against stale claims).

n269. See Ewell, 383 U.S. at 120 (reiterating that the Sixth Amendment's
Speedy Trial Clause attempts to prevent unnecessary incarceration prior to
trial, minimize anxiety related to public accusation, and limit the
possibility that a long delay will hinder an accused's ability to defend
himself).

n270. 386 U.S. 213 (1967).

n271. Id. at 223.

n272. See id. at 222-23 (indicating that previous cases "declaring that the
Sixth Amendment does not apply to the States can no longer be regarded as
the law").

n273. The Court held that the state had violated a criminal defendant's
speedy trial guarantee when it entered a "nolle prosequi with leave" against
the defendant, indefinitely postponing the prosecution but simultaneously
vesting the prosecutor with the right to reinstate charges against the
defendant at any time in the future. Id. at 214.

n274. See Klopfer, 386 U.S. at 221-22 (emphasizing the "limitations placed
upon [the defendant's] liberty" and the "public scorn" that the defendant
might suffer while the defendant remained under indictment).

n275. In Dickey v. Florida, the next major Speedy Trial Clause case decided
three years after Klopfer, the Court considered only the potential prejudice
to the defendant's case. See Dickey v. Florida, 398 U.S. 30, 37-38 (1970).
Although, in fairness, the facts of this case did not directly implicate the
personal liberty and public obloquy interests, they were not irrelevant. See
id. at 32, 34 (relating the facts of the case). The defendant was
incarcerated in a federal institution when the state of Florida sought a
writ of detainer against him in 1960, and thus was not subject to pre-trial
detention in connection with the state charge of armed robbery. Furthermore,
the defendant was not formally charged by the state until December of 1967,
shortly before his January 1968 release from federal prison. Id. at 34. But
see id. at 41-42 (Brennan, J., concurring) (applying all three interests
discussed in Ewell and Klopfer, including the potential prejudice factor, to
the present case).

Just a year later, however, the Court's interpretation of the interests
protected by the Speedy Trial Clause emphatically changed again with its
decision in United States v. Marion, 404 U.S. 307 (1971). In Marion, the
Court rejected - without discussion - the reasoning of Dickey and its
predecessors, writing "the major evils protected against by the speedy trial
guarantee exist quite apart from actual or possible prejudice to an
accused's defense." See Marion, 404 U.S. at 320 (citing Ewell and Klopfer
for the proposition that the Speedy Trial Clause only protects the
defendant's interest in minimizing undue pre-trial incarceration and public
obloquy). To support this new interpretation, the Court emphasized "the law
has provided other mechanisms to guard against ... prejudice resulting from
the passage of time between crime and arrest or charge," namely the statutes
of limitations. Id. at 322-23. See also United States v. MacDonald, 456 U.S.
1, 8 (1982) ("The Sixth Amendment right to a speedy trial is thus not
primarily intended to prevent prejudice to the defense caused by passage of
time; that interest is protected primarily by the Due Process Clause and by
statutes of limitations."). But see Barker v. Wingo, 407 U.S. 514, 532
(1972) (intimating the importance of determining the possible impairment of
an accused's defense by recognizing an unquantifiable prejudice due to lost
witnesses or fading memories); Doggett v. United States, 505 U.S. 647,
661-62 (1992) (Thomas, J., dissenting) (acknowledging the prevention of
prejudice to a defendant as "an independent and fundamental objective of the
Speedy Trial Clause"). In Doggett, Justice Scalia also found the Court's
one-sentence attempt to harmonize the apparent conflict in the cases to be
"eminently unpersuasive." Id. at 662.

n276. 407 U.S. 514 (1972).

n277. See id. at 517-18 (tracing the procedural posture of the case from
1958 through 1963).

n278. See id. (delineating the reasons for the postponements).

n279. Justice Powell wrote for the 7-member majority opinion, while Justice
Brennan joined Justice White's concurring opinion. See Barker, 407 U.S. at
536.

n280. See Beavers v. Haubert, 198 U.S. 77, 87 (1905) (indicating the speedy
trial right accrues to criminal defendants).

n281. See Barker, 407 U.S. at 519 (insisting the Speedy Trial Clause
protects societal interests "separate from, and at times in opposition to,
the interests of the accused"). The Court also may have attempted to
retrospectively justify its decision in Marion by indicating that an
extensive pre-trial delay does not "per se" prejudice a defendant, as fading
memories may also prejudice the prosecution's case. Id. at 521.

n282. See id. at 523-26 (declining to set a strict time limit by which cases
must go to trial and rejecting the "demand-waiver" doctrine). The Court felt
it would invade the province of the legislative branch by setting a "rigid"
deadline. Id. at 523. The Court also considered the "demand-waiver"
doctrine, which "provides that a defendant waives any consideration of his
right to speedy trial for any period prior to which he has not demanded a
trial." Id. at 525. This doctrine seemed unreasonable and failed to
harmonize with existing precedent protecting rights similar to those
preserved by the Speedy Trial Clause. Id. at 525-26 (finding the
demand-waiver doctrine "is not consistent with the interests of defendants,
society, or the Constitution.").

n283. Barker, 407 U.S. at 527.

n284. See id. at 531 (acknowledging the subtle distinction between this
interest and the length of the delay factor).

n285. See id. at 528-29 (finding the defendant's "assertion of or failure to
assert" distinction to be more consistent with constitutional development).

n286. See id. at 532 (defining this factor in terms of the historical
development that gave rise to the Speedy Trial Clause).

n287. In articulating the evils that an emphasis on prejudice seeks to
counter, the Court defined this right in terms of the defendant's interest
in the three traditional reasons advanced to justify the Speedy Trial
Clause. See supra Part IV.B.

n288. See Barker, 407 U.S. at 532 ("The inability of a defendant adequately
to prepare his case skews the fairness of the entire system.").

n289. See, e.g., United States v. Loud Hawk, 474 U.S. 302, 315 (1986)
(concluding that potential impairment of a fair trial caused by lost
witnesses or fading memories "is not sufficient to support respondents'
position that their speedy trial rights were violated"); United States v.
Lovasco, 431 U.S. 783, 789 (1977) (noting that "statutes of limitations ...
provide "the primary guarantee against bringing overly stale criminal
charges'") (quoting Ewell, 383 U.S. at 122); United States v. MacDonald, 456
U.S. 1, 7-8 (1982) (citing Marion to emphasize the significance of the
pre-trial incarceration factor, and noting that statutes of limitations and
the Due Process Clause are the primary forms of protection against prejudice
to the defendant).

n290. 505 U.S. 647 (1992).

n291. See supra note 275 (arguing that the Dickey Court's only concern
rested with the defendant's interest in minimizing prejudice).

n292. See Doggett, 505 U.S. at 648-50 (reiterating the facts of the case).

n293. See id. at 649 (relating that Doggett's mother informed DEA agents he
had left four days prior to the agents' arrival).

n294. See id. (indicating DEA agents placed Doggett's name into the Treasury
Enforcement Communication System and the National Crime Information Center
databases, both of which assist Customs agents to effect outstanding arrest
warrants when the subjects of the warrants attempt to re-enter the United
States).

n295. See id. (revealing the DEA agents informally requested that Panamanian
officials "expel" Doggett to the United States because they believed a
formal extradition request would be a waste of time).

n296. See id. (explaining that Customs officials did not apprehend Doggett
because his name had expired from the Customs database in 1980).

n297. See Doggett, 505 U.S. at 649 (insinuating Doggett's actions did not
imply he actively evaded capture because he "married, earned a college
degree, found a steady job as a computer operations manager, lived openly
under his own name, and stayed within the law").

n298. See id. at 649-50 (implying that officials could have located Doggett
at a much earlier point in time if they had taken basic steps to follow up
on the case).

n299. See id. at 650 (emphasizing the ease with which the Marshal's Service
determined Doggett's residence and place of employment).

n300. See id. at 657 (noting that the Government's "egregious persistence in
failing to prosecute" the defendant was "clearly sufficient" to justify
granting relief to the defendant).

n301. See Steven M. Wernikoff, Extending Sixth Amendment Speedy Trial
Protection to Defendants Unaware of Their Indictments: Doggett v. United
States, 83 J. Crim. L. & Criminology 804, 826-29 (1993) (asserting that the
Court's failure to define even broad parameters for the term "extraordinary
delay," combined with the absence of any guidelines or suggestions as to how
the prosecution could possibly rebut a defendant's claim of prejudice,
places a "heightened burden" on the prosecution to limit post-indictment
delay).

n302. The following discussion presumes a case of DNA indictment with
circumstances similar to those of Mr. Robinson's case. See Kravets, supra
note 6 (relating the facts of the case). In other words, the analysis
assumes a DNA indictment resulting in the arrest of a defendant, following a
cold hit against a DNA databank, all occurring after the statute of
limitations otherwise would have expired.

n303. See Doege, Another Rapist, supra note 20, at 7 (revealing the impetus
behind the decision to indict the DNA rested with the prosecutor's desire to
retain jurisdiction over the case).

n304. See Adelstein, supra note 67, at 251 n.228 (indicating most state
statutes set the time during which a prosecution may commence at three years
for felony offenses). If the prosecutors practicing DNA indictment felt
confident they could file charges against a named defendant prior to the
expiration of the statutory period, they would have no reason to seek DNA
indictments. It appears prosecutors, therefore, have committed themselves to
bringing untimely prosecutions many, many years after the relevant statute
of limitations expired. See, e.g., Senator Proposes DNA Indictments, AP
Newswire, June 5, 2000 (quoting a prosecutor indicating he will pursue cases
against DNA indictees "no matter how long it takes to track the suspect
down").

The circumstances will not always involve a lengthy period between
indictment and arrest, however. In California, Paul Robinson's arrest
warrant for rape was issued just prior to the statutory deadline. See
Kravets, supra note 6 (observing that prosecutors pursued the warrant the
day before the statutory deadline would have expired). The defendant was
arrested shortly after the warrant was issued. See id. (hailing DNA evidence
for revealing an identity that investigators had fruitlessly pursued for six
years).

n305. See Wernikoff, supra note 301, at 826-29 (explaining how the Court's
failure to illustrate the possibility of rebutting a defendant's claim of
prejudice leads, de facto, to a finding of presumptive harm to the
defendant's case).

n306. See Adelstein, supra note 67, at 263-67 (implying the Sixth Amendment
remains the ultimate protection for defendants who might otherwise be
prejudiced by an inequitable application of the statute of limitations, but
suggesting a flexible, non-constitutional approach could be developed to
"weigh the actual prejudice caused by unjustifiable delay against the
reasons for such delay" to protect societal interests).

n307. U.S. Const. amend. VI.

n308. See Dillingham v. United States, 423 U.S. 64, 65 (1975) (per curiam)
(holding that a delay of twenty-two months between arrest and indictment on
automobile theft charges violated the Speedy Trial Clause because the
defendant is considered "accused" at the time of his arrest, even though the
formal indictment occurred at a much later time) (citing to Marion, 404 U.S.
307, 320-21 (1971)).

n309. See Marion, 404 U.S. at 313 ("The protection of the Amendment is
activated only when a criminal prosecution has commenced and extends only to
those persons who have been "accused' in the course of that prosecution.")
(emphasis added).

n310. See Dillingham, 423 U.S. at 65 ("Arrest is a public act that may
seriously interfere with the defendant's liberty, whether he is free on bail
or not, and that may disrupt his employment, drain his financial resources,
curtail his associations, subject him to public obloquy, and create anxiety
in him, his family and his friends.") (quoting Marion, 404 U.S. at 320-21).

n311. See Dedman, supra note 5, at A8 (explaining that prosecutors must file
each charge as a "John Doe" indictment or warrant because authorities remain
unaware of the suspect's identity).

n312. See Charges, supra note 5 (using genetic markings to provide the
description of the suspect instead of phenotypical physical features).

n313. See generally People v. Montoya, 255 Cal. App. 2d 137, 142-43 (1967)
(holding that a warrant containing a fictitious name must describe the
suspect with such reasonable particularity to allow the arrest of the
suspect based on the warrant's description).

n314. See Austin Rape, supra note 12 (quoting a prosecutor in the District
Attorney's office as saying, "You might not know the name, but there's only
one person on this Earth that has this marker"); see also Eric Slater, Rape
Case Tests the Limits: Milwaukee Uses Genetic Evidence to File Warrants in
Unsolved Crimes, L.A. Times, Feb. 11, 2000, at A1 (relating Norman Gahn's
words: "We know exactly who these rapists are. We just don't know their
names").

n315. See Doggett v. United States, 505 U.S. 647, 651 (1992) (implying the
Sixth Amendment must be interpreted liberally because a purely literal
reading of the words of the Amendment otherwise would preclude prosecutors
from delaying a defendant's trial, regardless of the circumstances); United
States v. MacDonald, 456 U.S. 1, 15 (1982) (employing a "natural reading" of
the text of the Speedy Trial Clause).

n316. See supra note 275 (reflecting the Court's internal dispute over how
much emphasis to place on the defendant's interest in avoiding prejudice).

n317. See Doggett, 505 U.S. at 651-52 & n.1 (declaring that a "presumptively
prejudicial" delay "does not necessarily indicate a statistical probability
of prejudice; it simply marks the point at which courts deem the delay
unreasonable enough to trigger the Barker enquiry") (citation omitted).

n318. See Wernikoff, supra note 301, at 828 (criticizing the Court for
failing to offer guidelines suggesting a means through which the government
might rebut the presumption of prejudice).

n319. See Doggett, 505 U.S. at 657-58 (focusing entirely on the rights of
the defendant, without offering any hint to the government how they could
have responded to the defendant's Speedy Trial claim).

n320. See id. at 658 (implying that an eight and a half year delay was
"extraordinary" in saying "we have called shorter delays "extraordinary'");
see also Barker v. Wingo, 407 U.S. 514, 533 (1972) ("It is clear that the
length of delay between arrest and trial - well over five years - was
extraordinary.").

n321. See Wernikoff, supra note 301, at 826 (suggesting that the existence
of an extraordinary, as opposed to a regular, delay "greatly affects which
party has the burden of showing the existence of prejudice").

n322. The delay was greater than five years. See Barker, 407 U.S. at 517-19
(tracing the delay from 1958 through to 1963, when Barker finally went to
trial).

n323. The delay was eight and a half years between Doggett's indictment and
his arrest. See Doggett, 505 U.S. at 652 (finding the eight and a half year
delay sufficient to trigger a Barker analysis).

n324. See Adelstein, supra note 67, at 251 n.228 (indicating most state
statutes set three years as the time beyond which a felony prosecution may
not commence for felony offenses).

n325. See United States v. Marion, 404 U.S. 307, 313 (1971) (announcing the
Supreme Court's opinion that "the Sixth Amendment speedy trial provision has
no application until the putative defendant in some way becomes an
"accused,'" which can occur through indictment, arrest, or the filing of a
criminal information against a suspect).

n326. See Slater, supra note 314, at A1 (reporting an instance in which the
Assistant District Attorney filed a DNA indictment only eight hours before
the statute of limitations would have expired); see also Kravets, supra note
6 (revealing that the prosecutor filed the charges only one day before the
statutory deadline).

n327. In other words, a suspect may invoke the speedy trial guarantee only
after he has been accused. In many instances, prosecutors have filed DNA
indictments immediately prior to the expiration of the relevant statute of
limitations. See supra note 326. It is patently unreasonable to expect
defendants - and even defense counsel who have not had the opportunity to
research the issue - to be so aware of the length of the relevant
limitations period and the current status of the Supreme Court's conflicting
Sixth Amendment doctrine. See supra note 275 (outlining the Court's
inconsistencies in Speedy Trial analysis), as to allow them to invoke their
Sixth Amendment rights during the few hours after arrest when the statute of
limitations remains applicable.

n328. Whether a defendant may invoke his constitutional Speedy Trial
guarantee depends on how quickly police arrest him after filing the DNA
indictment. Suspects who have unwittingly been indicted by virtue of their
DNA theoretically may remain at large for many years; they would have the
stronger Sixth Amendment argument. Contrast that scenario, however, with the
case of Paul Robinson in California, who probably could not seek protection
under the Sixth Amendment because the period between indictment and arrest
was so brief. See Kravets, supra note 6 (indicating that police arrested
Robinson only a few weeks after the DNA indictment). In this case,
prosecutors left Robinson without recourse to either the statute of
limitations or the Speedy Trial guarantee, despite the fact that more than
five years had passed since the crime that police allege he committed. See
id. (noting that the suspect's identity had baffled the prosecutors for five
years).

n329. See Barker, 407 U.S. at 530-31 (suggesting courts need to draw
fact-specific conclusions based on the "peculiar circumstances" of each case
to decide whether the length of the delay triggers further Sixth Amendment
analysis).

n330. See id. at 531 ("To take but one example, the delay that can be
tolerated for an ordinary street crime is considerably less than for a
serious, complex conspiracy charge.").

n331. See id. at 533 (recognizing the Barker test is a "difficult and
sensitive balancing process"); Wernikoff, supra note 301, at 832-33 (arguing
that the subjective aspects of Barker's balancing test inherently require
courts to substitute their own values for objective ones in assessing the
validity of a prosecution).

n332. See, e.g., United States v. Vassell, 970 F.2d 1162, 1164 (2d Cir.
1992) (focusing on the difficulty in gathering and interpreting evidence
rather than the harm inflicted on the victims).

n333. See Doggett v. United States, 505 U.S. 647, 656, 657 (1992) (affirming
Barker's emphasis on weighing "official bad faith" against the government,
and concluding that the governmental delay in the instant case reflected
"egregious persistence in failing to prosecute" the defendant) (emphasis
added); Barker, 407 U.S. at 531 ("A deliberate attempt to delay the trial in
order to hamper the defense should be weighted heavily against the
government."). But see United States v. Lovasco, 431 U.S. 783, 796 (1977)
(finding that the delay caused by prosecutors' further investigation into
the case constituted a good-faith attempt to marshal the facts of the case
and thus did not prejudice the defendant).

n334. See United States v. Loud Hawk, 474 U.S. 302, 314 (1986) (explaining
that the delay should be weighed against the defendant because he filed
"indisputably frivolous petitions"); United States v. MacDonald, 456 U.S. 1,
11 (1982) (finding that the defendant caused the delay in the case through
his "legal maneuvers").

n335. See Doggett, 505 U.S. at 656 (concluding that the defendant would have
been unable to present a viable speedy trial claim if the government "had
pursued Doggett with reasonable diligence from his indictment to his
arrest"); Wernikoff, supra note 301, at 829 (interpreting the Court's
Doggett decision to place on the government "a constitutional duty to make a
diligent good-faith effort to bring indicted defendants to trial without
unnecessary delay").

n336. See Doggett, 505 U.S. at 652, 649 (concluding that the Government made
"no serious effort" to find the defendant, despite the fact that an
investigator had entered Doggett's name into the Treasury Enforcement
Communication System database and had notified other agencies of the
outstanding warrant); Wernikoff, supra note 301, at 831 ("Courts should
require the prosecution to diligently seek defendants under protections
granted by the Sixth Amendment.").

n337. See Doggett, 505 U.S. at 650 (relating the fact that the Marshal's
Service verified the defendant's residence and work address "within minutes"
after running a credit check).

n338. See id. at 656 (finding it inappropriate to weigh the length-of-delay
factor against the government when the government must track down a
defendant who goes into hiding); Wernikoff, supra note 301, at 830
(recognizing that the courts do not require "heroic efforts" by law
enforcement officials pursuing a suspect who avoids identification and
capture).

n339. See United States v. Lovasco, 431 U.S. 783, 796 (1977) (declaring the
government did not violate fundamental rules of fairness by delaying a
suspect's trial while continuing its investigation to identify potential
co-defendants); see also Barker v. Wingo, 407 U.S. 514, 531 (1972) (noting
that tracking down a missing witness is a "valid reason" to "justify
appropriate delay"). See generally Doggett, 505 U.S. at 656 ("Our speedy
trial standards recognize that pretrial delay is often both inevitable and
wholly justifiable.").

n340. See Barker, 407 U.S. at 530-31 (offering a complex conspiracy charge
as the type of case justifying longer periods of investigation, and
concluding that "the length of delay that will provoke [a Barker] inquiry is
necessarily dependent upon the peculiar circumstances of the case").

n341. See DNA Labs Hired to Clear 12,000 NYC Rape Cases, Fla. Times-Union,
Sept. 28, 2000, at A8 (reporting that New York City alone has a backlog of
16,000 rape kits that have not been analyzed); Kozlowski, supra note 201, at
1E (identifying Michigan's backlog of samples from sex offenders dating back
to 1991, awaiting entry into the state and federal DNA databanks, at
15,000); State Could Solve More Rapes With Funds for DNA, Grand Rapids
Press, June 13, 2000, at A8 [hereinafter Funds for DNA] (noting that
two-thirds of the states struggle with tremendous backlogs of DNA samples
from sexual assault and violent crimes); Robert Tanner, DNA Puts Statutes of
Limitations on Trial, Patriot Ledger (Quincy, MA), Mar. 18, 2000, at 4
(counting 180,000 untested rape kits nationwide); cf. supra Part III.B
(discussing the differences between fingerprints and DNA samples in the cost
and effort required to compile the relevant databases).

n342. See City Moves to Clear Unsolved Rapes, N.Y. L.J., Sept. 28, 2000, at
7 (discussing New York City's appropriation of $ 12 million to reduce the
backlog of 16,000 untested rape kits); Man Could Be First Arrested with DNA
Warrant, AP Newswires, Oct. 24, 2000 (discussing how a $ 50 million grant
from the California Office of Criminal Justice Planning will help reduce the
backlog of cases and allow for more DNA indictments).

n343. See Slevin, supra note 125, at A3 (repeating the words of a Brooklyn
Assistant District Attorney, saying, "very few people either take advantage
of [the benefits of DNA evidence] or know about it. We're so swamped with
crime, assistant DAs come through and they don't have DNA training").

n344. See Doggett, 505 U.S. at 656 (delineating the different levels of
delay that courts may assign to the government, and noting that between
diligent prosecution and bad faith delay lies "official negligence").

n345. See Barker, 407 U.S. at 531 ("A ... neutral reason such as negligence
... should be weighted less heavily but nonetheless be considered since the
ultimate responsibility for such circumstances must rest with the government
rather than the defendant.").

n346. See Doggett, 505 U.S. at 657 (asserting that courts must consider a
delay due to official negligence, even if lacking in bad faith, but
contending that courts accordingly should not weigh negligent delay as
heavily as official bad-faith delay).

n347. See Model Rules of Professional Conduct Rule 3.8(a) (2001) ("The
prosecutor in a criminal case shall ... refrain from prosecuting a charge
that the prosecutor knows is not supported by probable cause.").

n348. See Peter J. Henning, Prosecutorial Misconduct and Constitutional
Remedies, 77 Wash. U. L.Q. 713, 733 (1999) (emphasizing that prosecutors
face an ethical dilemma between acting as zealous advocates for the
sovereign and responsibility to "a broader duty to ensure justice").

n349. See Latour, supra note 45, at B1 ("In New York, police have begun a
massive effort to reopen 12,000 unsolved rapes" based on DNA testing and
indictments).

n350. See United States v. Lovasco, 431 U.S. 783, 791 (1977) ("Indeed it is
unprofessional conduct for a prosecutor to recommend an indictment on less
than probable cause. It should be equally obvious that prosecutors are under
no duty to file charges as soon as probable cause exists but before they are
satisfied they will be able to establish the suspect's guilt beyond a
reasonable doubt.") (emphasis added) (footnotes omitted).

n351. See Henning, supra note 348, at 715-16 ("The Fifth and Sixth
Amendments, which largely govern the manner in which the prosecutor conducts
a criminal proceeding, do not require an assessment of the reasonableness of
the government's actions, as does the Fourth Amendment's proscription on
"unreasonable searches and seizures.'") (quoting U.S. Const. amend. IV). In
deciding whether to indict genetic material from a rape crime scene,
prosecutors should consider the existence and reliability of corroborating
evidence such as eyewitness identification of the alleged perpetrator,
physical evidence left at the scene that could link the perpetrator to the
crime at a much later date in the future, the possibility the genetic
material derived from a source other than the suspect (i.e., especially when
the DNA tested is from hair or blood samples, as opposed to semen samples),
the possibility of contamination of the sample's genetic material, the
precedent-setting implications for the current and future defendants, and
the ability and resources available to exclude other possible sources of the
DNA sample who have similar genetic structures. See Slater, supra note 314,
at A1 (reiterating questions prosecutors should ask when deciding whether to
seek a DNA indictment, including, "Could the victim be located to testify if
a DNA match was found? Was there any chance the suspect could claim the
encounter was consensual? How vicious was the attack?").

n352. See Tracey L. Meares, Rewards for Good Behavior: Influencing
Prosecutorial Discretion and Conduct with Financial Incentives, 64 Fordham
L. Rev. 851, 862 (1995) (implying prosecutors possess the ability to charge
defendants in almost any conceivable manner because "the prosecutor's
charging discretion is, for the most part, unreviewable").

n353. See Doggett, 505 U.S. at 653-54 (insisting that this factor would have
weighed heavily against the defendant if the Government had proved he knew
of the indictment and still failed to assert his right). The Court
ultimately deferred to the issuing magistrate's conclusion that the
defendant left the country before police indicted him and therefore did not
know about the indictment. See id. By devoting almost a full page to
settling a controversy over the factual status of the case and only two
sentences to an analysis of whether this factor could weigh against an
unaware defendant, the Court suggested the absurdity of weighing this factor
against a defendant unaware of the pending indictment. See id.

n354. See Willing, supra note 4, at 1A (casting doubt on the theory that
people could recognize their DNA profile by citing the comments of a law
professor with extensive DNA experience, remarking, "people know their own
name, even their own nickname or alias, but do they know their own (DNA)
profile?") (parenthesis in original).

n355. See Doggett, 505 U.S. at 653 (lambasting the government for arguing
that the defendant knew of the indictment after the government failed to
challenge testimony to the contrary at a hearing on the speedy trial
motion).

n356. See Barker v. Wingo, 407 U.S. 514, 533 (1972) ("None of the four
factors ... [is] either a necessary or sufficient condition ... They are
related factors and must be considered together with such other
circumstances as may be relevant.").

n357. See United States v. Ewell, 383 U.S. 116, 120 (1966) (announcing
prejudice to a defendant's case takes precedence over any other factors or
considerations) (quoting Smith v. United States, 360 U.S. 1, 10 (1959)).

n358. See Barker, 407 U.S. at 532 (listing the factors).

n359. See id.

n360. See id.

n361. See supra Part IV.C (revealing the Court's "ping-pong" approach in
deciding how much emphasis to afford this factor).

n362. See Loud Hawk, 474 U.S. at 312 ("The Speedy Trial Clause's core
concern is impairment of liberty.").

n363. See Dedman, supra note 5, at A8 (indicating "John Doe" indictments,
the device through which grand juries file DNA indictments, describe a
person whose identity is otherwise unknown to law enforcement officers or
the public at large).

n364. See Marion, 404 U.S. at 320 ("Arrest is a public act that may ...
disrupt his employment, drain his financial resources, curtail his
associations, subject him to public obloquy, and create anxiety in him, his
family and his friends.").

n365. See Charges, supra note 5 (indicating grand juries issue "John Doe"
indictments for DNA indictees because the indictee's name remains unknown).

n366. See supra note 275 (tracing the court's internal conflict in analyzing
the issue of prejudice to an accused's defense). Given the Court's
inconsistent and relatively infrequent application of this factor, the most
recent articulation provides the most relevant guide for extrapolating its
logic to the current, novel situation.

n367. See Doggett, 505 U.S. at 655 ("Once triggered by arrest, indictment,
or other official accusation ... the speedy trial enquiry must weigh the
effect of the delay on the accused's defense just as it has to weigh any
other form of prejudice that Barker recognized.").

n368. See id. (acknowledging the virtual impossibility of proving the actual
degree of harm a defendant's case suffers through lost evidence and fading
memories caused by the passage of time). This declaration by the Court
clarified the issue for lower courts, which prior to Doggett had required a
showing of prejudice before entertaining a Speedy Trial Clause claim. See
Wernikoff, supra note 301, at 823-24 & n.156 (collecting cases).

n369. For a more detailed discussion of questions raised by DNA indictments
in assigning blame for the cause of delay, see supra Part IV.C.

n370. See Doggett, 505 U.S. at 655 ("Thus, we generally have to recognize
that excessive delay presumptively compromises the reliability of a trial in
ways that neither party can prove or, for that matter, identify.") (emphasis
added).

n371. See id. at 656 (instructing courts to tip the balance of the prejudice
factor in favor of defendants in such a manner that "its importance
increases with the length of delay").

n372. See supra note 328 (discussing the means through which prosecutors
have used DNA indictments to preclude defendants the opportunity of
presenting a statutory defense).

n373. See supra Part IV.D.1.b (discussing the possibility that courts will
attribute the cause of delay factor to the government for its failure to
enter a genetic sample into the relevant DNA database).

n374. See Barker, 407 U.S. at 531 (holding that courts should assess
"neutral reasons" constituting official government negligence against the
government, albeit less heavily than intentional delays); United States v.
Aguirre, 994 F.3d 1454, 1456 (9th Cir. 1993) ("Where the government is
negligent in pursuing a defendant, prejudice will be presumed and its weight
in defendant's favor will depend on the length of the delay."); United
States v. Shell, 974 F.2d 1035, 1036 (9th Cir. 1992) (holding that the
government's negligence created a "strong" presumption of prejudice against
the accused's defense after the prosecutors lost his file and only arrested
the defendant after finding the file five years later).

n375. For a general discussion of the inherent problems faced by suspects
attempting to rebut DNA evidence, as opposed to the more scientifically
accurate fingerprint evidence, see supra Part III.B.

n376. See Doggett, 505 U.S. at 652 & n.1 (establishing a duration of one
year between indictment and arrest as presumptively prejudicial).

n377. See Koehler supra note 179, at 212 (revealing that jurors
significantly "overweight" random match probabilities).

n378. See NRC I, supra note 45, at 161 (clarifying the superiority in
accuracy of fingerprint evidence, relative to DNA evidence); see also id. at
157 (indicating the inability of DNA evidence to distinguish between the
identity of twins).

n379. See Lempert, supra note 134, at 441-42 (describing prosecutors'
misrepresentations regarding the accuracy of DNA evidence).

n380. See NRC I, supra note 45, at 112 (noting investigators cannot afford
to collect DNA evidence with the frequency they collect fingerprints,
leading to the implication the prosecution warrants higher priority than an
ordinary street crime).

n381. See Lempert, supra note 134, at 444 (suggesting that some experts
overstate the reliability of the evidence).

n382. See Commonwealth v. Curnin, 565 N.E.2d 440, 441 (Mass. 1991)
(indicating the statistical random match probabilities alone have a
prejudicial impact on a jury).

n383. See Adelstein, supra note 67, at 249-50 (inferring a legislative
preference for statutes of limitations).

n384. See Wood v. Carpenter, 101 U.S. 135, 139 (1879) (enunciating the
judicial preference for statutes of limitations).

n385. See NRC I, supra note 45, at 161 (establishing fingerprints as more
reliable than DNA evidence).

n386. See Baughman, supra note 92, at 1117 (suggesting legislatures possess
the responsibility to make public policy decisions).

n387. See, e.g., Lempert, supra note 134, at 461-62 (describing a
hypothetical scenario in which a crime is committed at an Arctic air base).
In Lempert's hypothetical situation, the base consists of approximately
100,000 people, virtually all of whom have provided samples for a DNA
database. In that instance, a 1:100,000 probability of a random match would
be far superior even to a staggering number like 1:1 million in the civilian
world. See id.

DNA indictments may also be appropriate when the DNA sample is collected
from a rape kit, following allegations of a sexual assault for which consent
cannot be contested. See supra Part II.D (discussing the probative value of
genetic samples collected during a post-rape hospital examination).

n388. See, e.g., People v. Summers, 426 N.E.2d 937, 940 (Ill. App. Ct. 1981)
(finding probable cause existed to link a defendant to a crime scene when
the evidence revealed the fingerprints could only have been impressed at the
time the crime was committed).

n389. See supra note 328 (explaining how prosecutors' manipulation of the
DNA indictment process potentially prevents indictees from asserting a
statute of limitations claim, depending on when prosecutors sought the DNA
indictment).

n390. See supra Part IV.D.1.d.iii (listing the problems raised specifically
by DNA evidence).

n391. See Conforti, supra note 243, at 635 (implying both defendants and
society as a whole will benefit from the diligent prosecution and resolution
of crimes).