A young prosecutor faces a dilemma: The statute of limitations is about to expire in an assault case. The prosecutor has the assailant’s DNA—derived from blood left at the crime scene—but there is no match in the government’s DNA database. What is she to do? The answer may be to indict the assailant’s unique DNA profile, prior to expiration of the statute of limitations, and then wait for the genetic information of a relative of the assailant to appear in a commercial DNA database. Eventually, the search of such a database may identify the assailant’s genetic relatives and thereby lead to the assailant. The prosecutor can then amend the “DNA indictment” to include the assailant’s name and the case would proceed as any other criminal prosecution.
Although the science of DNA identification is relatively new, prosecutors have used, and courts have upheld, so-called “John Doe” indictments for decades. Their lawfulness has been judged through the prism of the Fourth Amendment’s particularity requirement and the Sixth Amendment’s speedy trial requirement. DNA indictments, widely upheld as constitutional by both state and federal courts, are merely an extension of that technique and Congress has even passed a statute enabling their use.
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