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DNA swab of juvenile is not fundamental error

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The Indiana Court of Appeals found police acted improperly in swabbing a teen’s penis to obtain DNA evidence and that the trial court erred in admitting this test into evidence, but that the error was harmless.

The appellate judges affirmed Duane Lee’s 13 convictions, which included Class B felony rape and six counts of criminal deviate conduct as Class A felonies. Lee and two other men committed a home invasion, robbery and rape of the resident, and Lee fled from police. He was 17 years old.

Police called Lee’s mother to consent to a DNA swab of Lee’s mouth, hands and penis. She signed the juvenile waiver without meaningfully consulting Lee. Lee only challenges on appeal the admittance of the evidence from the penile swab, which he did not object to at trial.

Lee argued that the trial court fundamentally erred in allowing the DNA test into evidence because the state didn’t prove it had the legal authority to swab his penis. Since he didn’t object at trial, the state didn’t have to explain its decision then. The state now argues that the juvenile waiver statute doesn’t apply because exigent circumstances required an attempt to collect the victim’s DNA from Lee before any evidence was destroyed. But the only support for the argument that the state was concerned about Lee destroying evidence was that the police detective interrogating Lee would not let Lee wash his hands after going to the bathroom.

In addition, if the detective actually believed the evidence was about to be destroyed and exigent circumstances existed, there wasn’t any reason to get Lee’s mother’s consent, noted Chief Judge Margret Robb in Duane Lee v. State of Indiana, No. 49A04-1105-CR-225.

But this error in obtaining and admitting the evidence at trial does not rise to the level of fundamental error. There was other significant evidence to support Lee’s convictions, including the victim’s testimony and Lee’s DNA found on a ski mask and the victim’s mouth.

 

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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