Articles Tagged with DNA

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The Golden State Killer had raped and murdered for ten years and hidden in plain sight for decades before he was finally caught, years after terrorizing Californians. His crime spree involved nearly 90 victims, and because he was a former police officer, he knew how to evade detection and capture for decades. What finally led to his apprehension?  It all came down to genetic genealogy. 

What is Genetic Genealogy?

Millions of people worldwide have participated in genetic DNA testing in the search for unknown relatives or as they look for clues to diseases that are hereditary. Most of them probably never thought those bits of DNA would one day be used to track down perpetrators of criminal activity, but that is exactly what is happening with the technology these days. Here is how it works, in a nutshell.  

  • A criminal leaves DNA evidence at a crime scene.
  • Investigators check FBI and other databases, and if they cannot find a match, they turn to genealogy websites.
  • Investigators fabricate a profile for a genealogy website using the DNA they have recovered from a crime scene, hoping to score a match.
  • When a near-match is discovered, detectives identify relatives—including those who may never have used the websites– using the newfound information.
  • Police have multiple leads at this point and start following the trails in hopes that one of them will lead to a suspect.

Is That Ethical?

Yes, it is a good thing that someone like the Golden State Killer was finally made to pay for his crimes. But for someone who is considered participating in genetic DNA testing or who has already done so, it may be a little concerning that law enforcement can now access the most minuscule pieces of your DNA in order to search for criminals. Do people understand that when they submit their DNA, it may be subject to forensic analysis by law enforcement? Even if it is spelled out in the company’s terms of service, do people read that and comprehend the potential consequences? Whatever happened to privacy, anyway?  In the case of the Golden State Killer, police would have had to falsely claim that the DNA they uploaded to the website was authorized, was their own, or was from someone for whom they had legal guardianship. That could bring questions as to whether or not the evidence was legally obtained.

DNA Questions in General

Setting aside the question of whether genealogy testing should be accessed by police, no discussion of DNA testing is complete without acknowledging that the misuse/overinterpretation of such evidence is a real risk in the criminal justice system. Clearly, the fact that DNA was located at a crime scene does not prove that the person was there during the commission of the crime, let alone guilty of it. And that does not begin to address the fact that DNA evidence could be compromised if not properly collected and stored. Continue reading

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Today’s technology can make or break a criminal case. Specifically, the ability to identify DNA, which can more easily find people that could be linked to or associated with a crime is a big deal. DNA is one of the primary pieces of evidence forensic investigators will be looking for when they sweep a crime scene. If found, a prosecutor may build a case around it and target the person whose DNA was left behind. Even though DNA can be a robust and convincing piece of evidence against a defendant, it is not always enough to secure a guilty verdict. 

In some cases, DNA alone can be convincing and lead to a conviction. In others, a jury is tasked with believing beyond a reasonable doubt that a defendant committed a crime in order to convict. If they are not sure and still have some lingering doubts, it could be possible for a defendant with DNA evidence against them to avoid conviction.

Residents of San Diego and the surrounding areas who are arrested should immediately get in touch with professional legal counsel. The San Diego criminal defense attorney David M. Boertje has been devoted to helping individuals mixed up in the criminal justice system fight for the best outcomes, including not guilty verdicts or reduced charges. David M. Boertje knows how to get results.

What Happens if DNA Leads to a Conviction?

When DNA is present, this piece of evidence can be compelling enough for a jury to want to convict. It is not always the situation, but defendants should know that it can be. Even if a guilty verdict is rendered, a defendant is not out of options. A defendant has the right to appeal that verdict and potentially get a better result.

There are several examples in which DNA was a primary reason for a guilty verdict. However, upon appeal, a conviction of a crime was overturned. This is the best possible result of an appeal.

Individuals arrested and charged with crimes can strategically position themselves to secure the most favorable outcomes for their cases when they have experienced legal counsel on their side. When it comes to DNA evidence, this is certainly powerful proof that may show a link to a crime. Though, in the absence of other forms of evidence, it can be hard for a jury to believe that a defendant committed a crime beyond a reasonable doubt and then convict. Should this happen, and there be serious questions and a lack of supplemental evidence to support the DNA exhibit, the defendant may have a case to make that, upon appeal, can overturn their guilty verdict. Continue reading

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According to Chesa Boudin, San Francisco’s District Attorney, the DNA taken from sexual assault survivors is being used to help investigations into other crimes that are not even related to the sexual assault victim. One example was a woman who was found and charged with a felony property crime who was the victim of a rape in 2016. In this case, the DNA from the woman from her rape examination was used as evidence against her in her felony case. 

Supposedly, the San Francisco DA’s office has said that this was not an isolated case where the practice was used. Instead, it was the standard operating procedure. If these claims are true, this raises serious legal questions about how the government is collecting and using DNA. 

How Has the San Francisco Police Responded to the Allegations?

San Francisco’s Police Chief, Bill Scott, appears to be engaging in a proactive response to the allegations. According to SFPD Chief Scott, there will be an investigation. If the investigation shows that the DNA of victims is a tool that is being used to find answers to other crimes, then the practice will stop.

DNA is an incredibly powerful tool to locate potential lawbreakers and convict them of their charges in California and across the rest of the United States. Because of this, police departments far and wide collect DNA and catalog it as a resource when they are looking for criminals.

California DNA collection laws allow police department crime labs to be able to establish their own databases which are not linked to those that the federal and state government have. These labs can analyze their samples without any oversight and regulation.

One of the primary concerns of this practice is the potential negative effects it will have on victims. Meaning, that if a person is victimized by a crime, they may be less inclined to come forward and report what happened to them out of fear that their DNA could be used against them in the future.

Whether this practice is standard or not is still being adjudicated. But many police departments around the country have come forward to deny that these practices are widely used in criminal investigations. In other words, a victim’s DNA is never used as a means to investigate other crimes. 

If you were charged with a crime in San Diego, it is imperative that you have legal counsel on your side that is experienced and skilled to secure the best outcome possible for your case. One way your San Diego criminal defense attorney may be able to dismantle the prosecution’s argument against you is to show that evidence used was illegally obtained and therefore needs to be thrown out. When this happens, a case can be dismissed regardless of its strength. Continue reading

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In California and throughout the nation, the collection of DNA is a huge undertaking. All 50 states are required to collect DNA evidence from suspects, with some occurring at the arrest, prior to getting a conviction. Several types of DNA evidence exist in society today. DNA swabbing is one of the most common. DNA swabbing is a type of DNA used to collect evidence from the suspect of a sexual offense, such as rape. For purposes of this article, we will focus on DNA swabbing, the techniques of swabbing, and problems that exist in San Diego County.

What is DNA Swabbing?

A DNA swab, or what is technically known as a buccal swab, is the process by which cells are collected from the cheek of the mouth using a cotton-tipped applicator. Many people refer to DNA swab as a cheek swab.

According to Puritan Medical Products, there are three techniques of DNA swabbing:

  • Touch DNA swabbing
  • Double touch DNA swabbing
  • Blood and fluid swabbing

Puritan Medical Products also lays out the steps of DNA swabbing:

  • Preparation
  • Swabbing for cells
  • Preservation of cells for transport

After learning about the techniques of DNA swabbing and the steps it takes to complete DNA swabbing, you may be surprised to hear that San Diego County is facing its own problems when it comes to DNA swabbing and testing of rape kits.

San Diego Faces Problems With Rape Kit Policies

San Diego County is currently facing a problem with the incomplete testing of DNA rape kits. The San Diego Police Department (SDPD) admits to not having the capacity to test all untested rape kits in their possession while handling daily duties, according to an article in the Voice of San Diego.  

SDPD was testing only a single swab from untested rape kits. This was the procedure specifically reserved for circumstances where the DA declined to prosecute, according to a report by 10 News San Diego.

Although San Diego is making plans to resolve these problems, this just reiterates the fact that DNA swabbing is not always effective. Ineffective DNA swabbing is what lands an innocent person in jail.

DNA Swabbing is Not Always Effective

Regardless of the steps taken to preserve the evidence, DNA swabbing is not always effective in crime investigations.  DNA swabbing can be faulty and a technician’s error in handling the evidence happens often.

Because of the ineffectiveness of DNA evidence, this is where a knowledgeable San Diego criminal defense attorney can create a cloud of reasonable doubt surrounding the evidence. Continue reading

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DNA plays an important role in crime investigations. From collecting fingerprints to hair follicles and swabs of saliva, DNA is the evidence that can make or break a criminal investigation. Today, we will define DNA, show you how DNA is typically used in criminal cases, the new technology surrounding DNA, and discuss whether DNA testing is always accurate. 

What is DNA?

Simply put, DNA is a blueprint or guide of cellular structures that create the genetic makeup of a person and reveal their identity.

How is DNA Used in Criminal Cases?

DNA is used in criminal cases to hold a person accountable for a crime and is typically used in these types of matters: 

According to a report in NBC 7 San Diego News, in violent crimes involving handguns, investigators and analysts are now able to use ammunition or shell casings to obtain DNA and link suspects to crimes.

DNA Technology

DNA is more advanced than it was even five years ago. In fact, DNA is so advanced now that gel is being used to prevent theft crimes. According to an article in Today, more than 5 million thefts occur each year in the United States.

Now a technology company is helping homeowners and renters by offering an anti-theft kit. The anti-theft kit allows homeowners and renters to take matters into their own hands by using gel to protect their property in the event a burglary occurs.

With the rise of thefts in San Diego, because of Proposition 47, we can expect for this gel technology to become more commonly used, especially since over 5,000 police departments have partnered with the DNA technology company.

Is DNA Testing Always Accurate or Reliable?

Of course not.

DNA mishaps is the primary reason why criminal defense attorneys make it a point to challenge DNA to represent their client. Many factors affect DNA testing, including:

  • Contamination.
  • Human error.
  • Chain of custody errors.

Under certain circumstances, DNA can be deemed inadmissible or is not allowed to be used as evidence in a criminal trial, under the California Evidence Code.

With these challenges, an experienced and knowledgeable criminal defense attorney will be able to use the DNA against the prosecution to prove their client’s innocence.  Continue reading

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This is the fifth post in a continuing series about the use of DNA profiling by law enforcement in California. The focus in this segment is the DNA collection of criminal suspects or people arrested and charged for a crime but not found guilty or have not pled guilty to criminal charges. Check back next week for the final segment of the series about overturning wrongful convictions.

California is often at the forefront of criminal law. A place where it is a clear leader is the collection of DNA samples from criminal suspects. The American criminal law system functions with the assumption that an individual is innocent until proven guilty. While the use of DNA evidence for crime solving is one of the most important tools available to law enforcement, requiring the submission of DNA at the arrest stage reverses the assumption of guilty until proven innocent.

What is an Arrest?

Individuals arrested or taken into police custody and charged with a felony crime are subject to DNA collection in California. An arrest in California is the “taking [of] a person into custody, in a case and in the manner authorized by law.” (California Penal Code Section 834). In practical terms, custody means that the individual is not free to leave when he or she wants.

Adults Arrested for Any Felony Offense are Subject to DNA Collection

Prior to November 3, 2004, adults arrested for murder, voluntary manslaughter, a felony PC 290 sex offense, or an attempt to commit one of those crimes were subject to DNA collection. On January 1, 2009 all that changed. The new law requires all adults arrested for any felony offense to be subject to DNA collection. This also includes any person that is the subject of a “direct file” homicide complaint. The law requires the suspect to submit DNA as part of the criminal case.

When is DNA Collected?

DNA samples of criminal defendants are collected at the booking phase. The booking phase is when identifying information is collected along with fingerprints and photographs and occurs immediately following the arrest and before the person is placed in jail or sees a judge. Continue reading

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This is the third post in a series on the use of DNA profiling by law enforcement in California. The focus here is on the DNA collection of juvenile offenders.


Sometimes referred to as “Section 602 proceedings,” after the California law governing delinquency proceedings, juvenile court is not a part of California’s criminal justice system. Instead, juvenile court is considered a civil proceeding where cases get “adjudicated.” Most juvenile offenders are housed in county facilities close to their home where they can keep in contact with their family and have access to social services. These juvenile offenders, depending on their charges, may be required to submit a DNA sample as part of the resolution of their juvenile delinquency case.


Whose DNA Gets Collected?

Continue reading

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This is a second post in a series on DNA profiling in California.

DNA fingerprinting or DNA profiling is the process of determining an individual’s DNA characteristics. DNA tests can be performed using a sample of a person’s blood, hair, skin, amniotic fluid, or other tissue to create a unique DNA profile that then gets matched to a specific person. DNA fingerprinting is commonly used as a forensic technique in criminal investigations. At crime scenes, evidence is collected and tested. Once a DNA profile is created, law enforcement looks to match it with other people who may or may not have been at the crime scene. The profile or profiles created can include multiple suspects, the victim, or an unknown person. Through a process of elimination, successful DNA investigations are able to identify the perpetrator and support an arrest and then conviction for a crime.

How is a DNA sample collected?

People are mostly familiar with the buccal smear DNA sample collection process. A cotton swab is rubbed on the inside of the mouth and the saliva is tested to create a unique DNA sample. This process is the most widespread because it is easy to administer and non-invasive. Other methods collect a sample of blood, saliva, semen, vaginal lubrication, and other appropriate fluid or tissue from physical personal items like toothbrush or razor.

Whose DNA Gets Collected?

Until January 1, 2009, only adults arrested and convicted for murder, voluntary manslaughter, a felony PC 290 sex offense, or an attempt to commit one of those crimes, on or after November 3, 2004 were subject to DNA collection. Today, all adults arrested for any felony offense are subject to DNA collection. That includes:

  • All newly convicted felony offenders (adult or juvenile;
  • Persons currently in custody or on probation, parole, or any other supervised release after conviction prior to November 3, 2004; and
  • Anyone currently on probation or any other supervised release for any offense with a prior felony must provide a DNA sample.

(See California Penal Code Sections 295, 296, and 296.1)

When is DNA Collected?

Sample collection is an administrative consequence of a conviction and is the responsibility of law enforcement or the courts to ensure that samples are taken from people in conjunction with their conviction or as soon as possible thereafter. A person must be under the jurisdiction or control of the court, government, or criminal justice system to be subject to the requirement. People in custody, on probation, on parole, or on other release or supervision are affected by this law.

Arsonists and Sexual Offenders

Arsonists and sexual offenders are required to submit their DNA sample as part of the adjudication of their criminal case. DNA samples are collected from arsonists and sexual offenders even if the underlying offense was a misdemeanor.

Check back next week for the next installment of DNA Profiling in California in which we look at how special groups, juveniles, and criminal suspects, are handled. Continue reading

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Back in 1989, DNA fingerprinting, commonly known as DNA profiling, was hailed as the 20th century’s most important breakthrough in forensic science. Law enforcement was eager to use the technology to identify and prosecute people accused of committing crimes. Law enforcement has been less eager, however, to exonerate innocent people who are suspects in criminal cases or who were convicted and jailed falsely.

Private organizations like the Innocence Project exclusively represent people who have been wrongfully convicted through DNA testing. The organization, now in its 25th year, has exonerated 513 people to date who spent a combined total of 7,804 years in prison. District Attorneys, like the Brooklyn, New York District Attorney’s Office have set up a Conviction Review Unit tasked with looking into old, questionable convictions. Since its founding in 2014, 24 people have been exonerated.

This series will examine the use of DNA profiling by law enforcement in California. The first post will explore DNA Sample Collection: The Who and When. The second post will probe DNA collection from special groups like juvenile offenders and criminal suspects. The last post will explore wrongful convictions and address how to seek exoneration following a criminal conviction.

What is DNA?

A google search reveals that “DNA is known as deoxyribonucleic acid, is a self-replicating material which is present in nearly all living organisms as the main constituent of chromosome. [In short], it is the carrier of genetic information.” What?

Let’s try this again. DNA is the material that carries all the information about how a living thing looks and functions. Each piece of information is carried in a different section of the DNA. These sections are called genes. DNA is short for deoxyribonucleic acid. It is in every living thing. Approximately 99.9% of human DNA sequences are the same in every person. The remaining .01% is different for every person.

What is DNA Fingerprinting or DNA Profiling or DNA Testing?

DNA fingerprinting creates a profile or map of the .01% of a human’s DNA that is different to create a unique identifier specific to an actual person. Keep in mind, with the exception of identical twins, no two people have the same DNA. Thus, a DNA fingerprint is the same as a physical print of human fingers because it creates a unique profile or picture of the person to whom that DNA specimen belongs.

Check back next week for a discussion on DNA Sample Collection and how its used by law enforcement when investigating a crime.

Charged With a Felony in California?

Seek advice and legal representation from an experienced San Diego Criminal Defense Attorney when facing felony charges in California. Available 24/7, the Boertje Law Firm represents clients at any stage of their criminal case. We proudly serve San Diego County, including Carlsbad, Chula Vista, Coronado, El Cajon, Encinitas, Escondido, Fallbrook, Imperial Beach, La Jolla, La Mesa, Lemon Grove, National City, Oceanside, Poway, San Diego, San Marcos, Santee, Spring Valley, and Vista. Whether your need for a criminal defense attorney arises during the pre-arrest investigation stage or the night before a court date, San Diego Criminal Defense Attorney David Boertje is available to talk to you. Call us toll free at (888) 476-0901 or contact us on the web to begin your legal representation. Continue reading

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While the allure of exploring one’s family tree and lineage has meant big business for some companies, two major that research family lineage (for a fee) claim that over the last two years, they have received law enforcement demands for genetic information stored in their DNA databases. Ancestry.com and their competitor 23andme, hold the genetic information of hundreds of thousands of people. They have received five requests from law enforcement agencies for the DNA of six people.

Ancestry.com did turn over one person’s data for an investigation into the murder and rape of an 18-year-old woman in Idaho Falls, Idaho. 23andme has received four other court orders but have  been successful in persuading investigators to withdraw the requests.

Privacy advocates and experts are concerned that genetic information turned over for medical, family history research or other highly personal reasons will be misused by investigators, and that this new trend could start a slippery slope.

Continue reading
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