BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair A
2001-2002 Regular Session B
1
2
1
AB 1219 (Simitian) 9
As Amended June 25, 2002
Hearing date: August 6, 2002
Penal Code
AA:mc
CRIMINAL COMPLAINTS AND ARREST WARRANTS :
BIOLOGIC AND BIOMETRIC SYMBOLS
HISTORY
Source: San Jose Police Department; Santa Clara County District
Attorney
Prior Legislation: None
Support: California District Attorneys Association; Office of
the Attorney General
Opposition:California Public Defenders Association; American
Civil Liberties Union
Assembly Floor Vote: No longer relevant
KEY ISSUE
SHOULD "BIOMETRIC" AND "BIOLOGIC" SYMBOLS, AS DEFINED, BE AUTHORIZED
(More)
AB 1219 (Simitian)
PageB
FOR USE IN CRIMINAL COMPLAINTS AND ARREST WARRANTS?
PURPOSE
The purpose of this bill is to allow criminal complaints and
arrest warrants to use biometric and/or biologic markers to
identify the accused, as specified.
Under current law , prosecution for an offense, which tolls the
statute of limitations, generally is commenced when any of the
following occurs:
(a) An indictment or information is filed.
(b) A complaint is filed charging a misdemeanor or
infraction.
(c) A case is certified to the superior court.
(d) An arrest warrant or bench warrant is issued,
provided the warrant names or describes the defendant with the
same degree of particularity required for an indictment,
information, or complaint. (Penal Code 804.)
Accusatory Pleadings
Current law provides that an accusatory pleading must contain 1)
the title of the action, specifying the name of the court to
which the same is presented, and the names of the parties; and
2) a statement of the public offense or offenses charged
therein. (Penal Code 950.)
This bill would amend this provision to provide that the
defendant may be identified by name, "corpus identity," defined
below, or both.
Current law provides that when a defendant is charged by a
fictitious or erroneous name, and in any stage of the
proceedings his true name is discovered, it must be inserted in
the subsequent proceedings, referring to the fact of his being
(More)
AB 1219 (Simitian)
PageC
charged by the name mentioned in the accusatory pleading.
(Penal Code 959.)
This bill would amend this provision to provide that the
defendant can be charged by a corpus identify, or by both a
fictitious or erroneous name and a corpus identify.
Current law provides an accusatory pleading is sufficient if it
can be understood therefrom:
1) That it is filed in a court having authority to receive
it, though the name of the court be not stated.
2) If an indictment, that it was found by a grand jury of
the county in which the court was held, or if an information,
that it was subscribed and presented to the court by the
district attorney of the county in which the court was held.
3) If a complaint, that it is made and subscribed by some
natural person and sworn to before some officer entitled to
administer oaths.
4) That the defendant is named, or if his name is unknown,
that he is described by a fictitious name, with a statement
that his true name is to the grand jury, district attorney, or
complainant, as the case may be, unknown.
5) That the offense charged therein is triable in the court
in which it is filed, except in case of a complaint filed with
a magistrate for the purposes of a preliminary examination.
6) That the offense was committed at some time prior to the
filing of the accusatory pleading. (Penal Code 959.)
This bill would amend this section to include, under (4) above,
a defendant described by corpus identity, as specified.
This bill would enact a new Penal Code section to provide that a
"complaint shall identify the defendant by name, by both name
and corpus identity, or by corpus identity."
This bill would provide the following definitions applicable for
the Penal Code:
(More)
AB 1219 (Simitian)
PageD
(1) "Corpus identity" means any unique
alphanumeric that is intended to reference a
specific biometric symbol or biologic symbol or
copy thereof, contained on any record or in any
file maintained by any federal, state, or local
law enforcement agency, laboratory or court.
(2) "Biometric symbol" means any image or
recording, produced by
the interaction of a person with an object,
medium, instrument or device, having sufficient
characteristics so as to distinguish that person,
to a reasonable certainty, from all other persons.
(3) "Biologic symbol" means any alphanumeric,
analog or digital signal, image, or representation
that is caused or produced by a chemical,
mechanical, radiological, biological, or physical
process or analysis of fluid, cell, tissue, or
waste product from a person, having sufficient
characteristics so as to distinguish that person,
to a reasonable certainty, from all other persons.
This bill would authorize a court, upon belief that the name
listed on the complaint was derived from the fraudulent
assertion of another's identity by the defendant, to strike that
name from the complaint at any time and without the defendant
being present, provided that a corpus identity
for the defendant was listed on the original complaint or a
corpus identity for the defendant is offered by the people.
This bill further would authorize a court, upon belief that the
name listed on the complaint was
listed in error, to strike that name from the complaint at any
time and without the defendant being present, provided that a
corpus identity for the defendant is named on a complaint, or a
corpus identity for the defendant is offered by the people.
This bill further would authorize the court, having stricken a
name from a complaint, to, at any time thereafter and without
the defendant being present, amend the complaint to identify the
(More)
AB 1219 (Simitian)
PageE
defendant by any name by which the person distinguished by the
corpus identity is believed to be known or by the corpus
identity offered by the people.
This bill further would authorize the court, having stricken a
defendant's name from a complaint, to issue orders using the
corpus identity listed on the complaint to identify the
defendant, unless
the defendant has been named on the complaint, as specified, in
which case orders shall list both the defendant's name and
corpus identity.
This bill would provide that a person who uses the name of
another during a detention or arrest may be identified in a
subsequent complaint by a corpus identity only. Having received
a complaint so filed, this bill would authorize the court to:
(1) Amend the complaint, at any time thereafter and without
the defendant being present, to identify the defendant by any
name by which the person distinguished by the corpus identity is
believed to be known.
(2) Issue orders using the corpus identity listed on the
complaint to identify the defendant, unless the defendant has
been named on the complaint as specified, in which case orders
would be required to list both the defendant's name and corpus
identity.
Arrest Warrants
Current law sets forth the form in which a warrant of arrest may
be issued. (Penal Code 814.)
This bill would amend this provision to authorize the naming of
a "corpus identify alphanumeric," as specified.
This bill also would make an unrelated technical amendment to
this section.
Current law requires that a warrant of arrest shall be directed
(More)
AB 1219 (Simitian)
PageF
generally to any peace officer, or to any public officer or
employee authorized to serve process where the warrant is for a
violation of a statute or ordinance which such person has the
duty to enforce, in the state, and may be executed by any of
those officers to whom it may be delivered. (Penal Code 816.)
Current law also provides that, when a warrant of arrest has
been delivered to a peace officer and the person named in the
warrant is otherwise lawfully in the custody of the peace
officer, the warrant may be executed by the peace officer or by
any clerk of a city or county jail authorized to act and acting
under the peace officer's direction. (Id.)
This bill would include "corpus identify" in this section, as
specified.
COMMENTS
1. Stated Need for This Bill
The author states:
AB 1219 will prevent an evasion of justice that
can occur when criminal charges are filed in good
faith against a person whose identity was stolen
by the defendant. It also protects victims of
identity theft by providing a procedure for the
court to disassociate them from criminal
complaints without jeopardizing the prosecution of
the true perpetrator.
2. Current Law; What This Bill Would Do
As noted above, the statute of limitations is tolled when a
prosecution is commenced, which occurs whenever any of the
following occur:
(a) An indictment or information is filed.
(b) A complaint is filed charging a misdemeanor or
(More)
AB 1219 (Simitian)
PageG
infraction.
(c) A case is certified to the superior court.
(d) An arrest warrant or bench warrant is issued,
provided the warrant names or describes the defendant with the
same degree of particularity required for an indictment,
information, or complaint. (Penal Code 804.)
Under current law, an arrest warrant generally must name or
otherwise identify a defendant to meet constitutional
requirements; however, sufficiently descriptive fictitious
warrants may issue where a defendant's name is unknown:
The Fourth Amendment to the federal Constitution,
and Article I, 13 of the California
Constitution, prohibit issuance of a warrant that
does not particularly describe the person to be
seized. Hence, a warrant must name or otherwise
identify the accused. If issued in blank, or in a
fictitious name (John Doe warrant), without any
description or other attempt at identification of
a particular person, it is void and no basis for a
valid.
On the other hand, a warrant may be issued for the
arrest of a particular person whose true name is
unknown. In those cases an alias, or even a
fictitious name, is appropriate and authorized by
P.C. 815, provided that the warrant contains some
other identifying statement. (See People v.
Montoya, supra, 255 C.A.2d 142.) Montoya set
forth the following requirements: (a) A warrant
for a person whose name is unknown must contain a
description sufficient to permit identification
with reasonable certainty; e.g., stating the
person's occupation, personal appearance,
peculiarities, place of residence. (255 C.A.2d
142.) (b) It is not sufficient merely to show
characteristics of age and race. Thus, the
description of a John Doe, "white male adult, 30
(More)
AB 1219 (Simitian)
PageH
to 35 years, 5' 10" 175 lbs. dark hair, medium
build," was inadequate because it could have
applied to a great number of persons in the
metropolitan area in which the warrant was issued.
(255 C.A.2d 143.)<1>
Current law also provides that an accusatory pleading is
sufficient if, with respect to the identity of the accused, it
informs of the following: "That the defendant is named, or if
the name is unknown, that the defendant is described by a
fictitious name, with a statement that the defendant's true name
is unknown to the grand jury, district attorney, or complainant,
as the case may be."<2>
This bill would allow criminal complaints and arrest
warrants to issue based on the "corpus identity" of the
defendant or person named in an arrest warrant. As
explained above, "corpus identity" would be defined under
this bill as "any unique alphanumeric that is intended to
reference a specific biometric symbol or biologic symbol
or copy thereof, contained on any record or in any file
maintained by any federal, state, or local law
enforcement agency or laboratory." (emphasis added)
" Biometric symbol " under this bill would mean "any image
or recording, produced by
the interaction of a person with an object, medium,
instrument or device, having sufficient characteristics
so as to distinguish that person, to a reasonable
certainty, from all other persons."
" Biologic symbol " under this bill would mean "any
alphanumeric, analog or digital signal, image or
representation that is caused or produced by a chemical,
mechanical, radiological, biological or physical process
or analysis of fluid, cell, tissue or waste product from
------------------------
<1> 4 Witkin Cal. Crim. Law (2001) Pretrial 20 (some
citations omitted)
<2> Penal Code 959.
(More)
AB 1219 (Simitian)
PageI
a person, having sufficient characteristics so as to
distinguish that person, to a reasonable certainty, from
all other persons." (emphasis added)
3. Statute of Limitations
Allowing criminal complaints and arrest warrants to be based on
a biometric or biologic symbol would permit prosecutors to
preserve criminal cases that are unsolved and about to lapse
under the statute of limitations. This practice stops - or
"tolls" - the running of the limitations period. As explained
by one commentator:
Across the country, prosecutors are using ("John
Doe" indictments or arrest warrants based on a
genetic profile) to preserve rape cases that
remain unsolved but threaten to be lost to the
statute of limitations. Once the government
formally commences a prosecution, the statute is
tolled and the police can, theoretically, continue
their efforts to identify the suspect. After the
police discover a match for the DNA profile
contained in the complaint or indictment, the
state can arrest the suspect and put him on trial
in order to determine his guilt or innocence.
. . . Proponents of "John Doe" indictments say
that using a DNA profile - rather than a name or
physical description - to identify the suspect in
an arrest warrant or indictment is a legitimate
way to vindicate victims, prevent offenders from
escaping justice, and prevent future crimes.
Critics, on the other hand, contend that issuing
an arrest warrant based on a DNA profile is a
disingenuous device of the prosecution that evades
the statute of limitations and infringes on the
(More)
AB 1219 (Simitian)
PageJ
constitutional rights of the accused.<3>
Statutory time limitations for bringing criminal charges
"ultimately preserve a defendant's right to assemble evidence
and prepare a vigorous defense. . . . Most importantly, the
statutes protect defendants from an unfair trial by militating
against prejudice caused by deterioration of evidence."<4> The
United States Supreme Court has stated that statutes of
limitations are the primary guarantee against bringing overly
stale criminal charges. ( United States v. Ewell (1966) 383 U.S.
116, 122.) As explained by Justice White in United States v.
Marion :
"The applicable statute of limitations ... is ...
the primary guarantee against bringing overly
stale criminal charges." Such statutes represent
legislative assessments of relative interests of
the State and the defendant in administering and
receiving justice; they "are made for the repose
of society and the protection of those who may
[during the limitation] ... have lost their means
of defense." These statutes provide predictability
by specifying a limit beyond which there is an
irrebuttable presumption that a defendant's right
to a fair trial would be prejudiced.<5>
The California Supreme Court in People v. Samara (1976) 18
Cal.3d 538, 547, commented that adopting a period of limitations
represents a legislative recognition that for all but the most
serious of offenses (such as murder and aggravated forms of
---------------------------
<3> Meeting the Statute or Beating it: Using "John Doe"
Indictments Based on DNA to Meet the Statute of Limitations,
Meredith A. Bieber, 150 U. Pa. L. Rev. 1079 (January
2002)(citations omitted).
<4> Beyond Fingerprinting: Indicting DNA Threatens Criminal
Defendants' Constitutional and Statutory Rights, Andrew C.
Bernasconi, 50 Am. U.L. Rev. 979 (April 2001), p. 995.
<5> United States v. Marion (1971) 404 U.S. 307, 322 (edits in
original) (citations omitted).
(More)
AB 1219 (Simitian)
PageK
kidnapping), a never-ending threat of prosecution is more
detrimental to the functioning of a civilized society than it is
beneficial.
Arguably, providing for "John Doe" filings based on genetic
profiling may be unnecessary given California's recent
amendments to its statute of limitations in sex offenses. In
2000, the Legislature passed AB 1742 (Correa), which extended
the limitations period for sex offenses to either ten years from
the commission of the crime or one year after a suspect is
conclusively identified by DNA testing.<6> Because this new
statute gives prosecutors unlimited time to find a DNA match
---------------------------
<6> Penal Code section 803(i) provides: "(1) Notwithstanding
the limitation of time described in Section 800, the limitations
period for commencing prosecution for a felony offense described
in subparagraph (A) of paragraph (2) of subdivision (a) of
Section 290, where the limitations period set forth in Section
800 has not expired as of January 1, 2001, or the offense is
committed on or after January 1, 2001, shall be 10 years from
the commission of the offense, or one year from the date on
which the identity of the suspect is conclusively established by
DNA testing, whichever is later, provided, however, that the
one-year period from the establishment of the identity of the
suspect shall only apply when either of the following conditions
is met: (A) For an offense committed prior to January 1, 2001,
biological evidence collected in connection with the offense is
analyzed for DNA type no later than January 1, 2004. (B) For an
offense committed on or after January 1, 2001, biological
evidence collected in connection with the offense is analyzed
for DNA type no later than two years from the date of the
offense. (2) In the event the conditions set forth in
subparagraph (A) or (B) of paragraph (1) are not met, the
limitations period for commencing prosecution for a felony
offense described in subparagraph (A) of paragraph (2) of
subdivision (a) of Section 290, where the limitations period set
forth in Section 800 has not expired as of January 1, 2001, or
the offense is committed on or after January 1, 2001, shall be
10 years from the commission of the offense. (3) For purposes
of this section, 'DNA' means deoxyribonucleic acid."
(More)
AB 1219 (Simitian)
PageL
making a conclusive identification, and then authorizes up to
one year from a match to commence prosecution, there arguably is
no need in these cases to file a complaint based on a "corpus
identity."
Penal Code section 803(i) requires that DNA evidence be tested
within a specified time period as a condition precedent to the
floating limitations period. The mandatory time period for
testing DNA evidence in order to use the extended limitations
period which was amended into AB 1742 in this Committee
reflected the Legislature's intent to encourage law enforcement
diligence in pursuing investigations.<7> The Committee may
wish to consider whether similar concerns might be raised by
this bill, and if there are ways to address these concerns
sufficiently:
Statutes of limitations encourage prosecutor and
police promptness. Without a statute, the police
may lack incentive to exercise due diligence in
investigating the case. They may forgo extensive
investigation and simply file charges based on the
DNA evidence they already possess. Procedural
safeguards can prevent such abuse. One
possibility is to have magistrate judges require
the police to show that they have exercised a
--------------------
<7> "Although intended to ensure that sex crime prosecutions are
not precluded by the lapse of an arbitrary limitations period,
by attaching the limitations period to the date of a DNA test,
this bill would remove a powerful incentive for swift and
intensive crime investigations-the limitations period. In fact,
in one of the cases used as an example to support this bill, DNA
testing finally occurred nearly seven years after a sex crime
was committed, and only when law enforcement, pressed by the
crime survivor, believed the statute of limitations was about to
expire. (fn.: In that case, the parties mistakenly believed the
limitations period to be 8 years; consequently, by the time the
match was made the limitations period had expired by nearly one
year.)" Analysis of AB 1742 (Correa), Senate Committee on
Public Safety, June 27, 2000.)
(More)
AB 1219 (Simitian)
PageM
reasonable degree of effort to identify the
suspect before issuing a "John Doe" arrest
warrant. In cases where the police and
prosecution have exercised due diligence, it is
not in the interest of justice to let the case
evaporate when there exists highly probative
evidence to use at trial if the suspect is later
identified.<8>
WOULD THIS BILL DISCOURAGE PROMPT AND PERSISTENT LAW ENFORCEMENT
CRIME INVESTIGATIONS? CAN THIS RISK BE ADDRESSED ADEQUATELY
WITH PROCEDURAL SAFEGUARDS?
WOULD THIS BILL LEAD TO THE PROSECUTION OF OVERLY STALE CASES?
WOULD DEFENDANTS LOSE THE ABILITY TO ADEQUATELY CHALLENGE THE
BASIS OF THE CORPUS IDENTITY? WHAT ABOUT LOST EVIDENCE?
WOULD THIS BILL, BY TOLLING A LIMITATIONS PERIOD WITH A GENETIC
PROFILE COMPLAINT, ALLOW PROSECUTIONS TO MOVE FORWARD LONG AFTER
NON-GENETIC, POSSIBLY EXCULPATORY, EVIDENCE IS LOST?
GIVEN THE ENACTMENT OF PENAL CODE SECTION 803(i) EXTENDING THE
STATUTE OF LIMITATIONS IN SEX OFFENSE CASES WHERE DNA EVIDENCE
HAS BEEN TESTED, IS THIS BILL NECESSARY?
4. Constitutional Concerns
The constitutionality of a criminal complaint and arrest warrant
issued based on a genetic profile is untested. The first arrest
based solely on the suspect's genetic profiling occurred in a
Sacramento rape case last year; appellate review at the initial
stages of the case has been declined. Prosecutors in at least
nine states are reported to have filed charged against unnamed
suspects based exclusively on a genetic profile.<9>
The Fourth Amendment of the U.S. Constitution provides in part
---------------------------
<8> Bieber, supra, note 1.
<9> Bernasconi, supra, note 2.
(More)
AB 1219 (Simitian)
PageN
that "no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be
seized."<10> The Sixth Amendment of the U.S. Constitution
"requires that an indictment . . . fairly inform the defendant
of the charges filed against him . . . ."<11>
"John Doe" warrants have been held constitutionally sufficient
where they provide an adequate physical description of the
defendant.<12> While an accurate genetic profile would appear
to meet this constitutional requirement, it may be more
difficult to demonstrate that an accused would be adequately
informed of charges against him with a complaint or arrest
warrant identifying him or her solely by biometric or biologic
symbol.
The Sixth Amendment also guarantees the right to a speedy
trial.<13> If a genetic profile complaint is followed by a
dilatory investigation and prosecution, an accused arguably may
be denied his or her right to a speedy trial.<14> Arguably,
this constitutionally-guaranteed right may pose a significant
hurdle in some cases where the limitations statute was tolled by
a genetic profile complaint:
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
--------------------
<10> See also California Constitution Article I, section 13.
<11> United States v. Gaytan (5th Cir. 1996) 74 F.3d 545,
551(citations omitted).
<12> See United States v. Ferrone (3d Cir. 1971) 438 F.2d 381,
389.
<13> "In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, . . . ." (U.S. Const.,
Amendment VI)
<14> As pointed out by one commentator, however, the same
argument could be made in a filing pursuant to Penal Code
section 803(i). Bieber, supra, note 1, at 1094.
(More)
AB 1219 (Simitian)
PageO
DNA indictments are designed to defeat the
relevant statute of limitations, the prosecution
presumes the delay between indictment and trial
will be substantial. A speedy trial defense for a
DNA 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" took place between
indictment and arrest.<15>
WOULD GENETIC PROFILE COMPLAINTS AND ARREST WARRANTS BE
SUFFICIENT TO MEET THE NOTICE AND SPEEDY TRIAL REQUIREMENTS OF
THE SIXTH AMENDMENT?
5. Limitations of Genetic Profile Evidence
This bill would permit corpus identity criminal complaints and
arrest warrants in any case where there is a biologic or
biometric symbol, as defined. This would appear to assume that
this evidence has equally probative value in all cases, which is
not the case. As explained in one law review article:
As the probative value of the material diminishes,
absent other corroborating evidence, it becomes
less desirable to use genetic material alone to
commence a prosecution against someone. For
example, hair found at the scene of a crime alone
may suggest little beyond the fact that the person
to whom the hair belongs was at one time present
at the site. In such a case, it may be
inappropriate to commence a prosecution. On the
other hand, seminal fluid collected during a rape
examination is far more suggestive that a rape
occurred. At a minimum, it provides evidence that
--------------------
<15> Bernasconi, supra, note 2, at 1024-1025 (citations
omitted).
(More)
AB 1219 (Simitian)
PageP
there was sexual contact.<16>
Other commentators argue that, even in rape cases, evidence such
as DNA may have limited probative value:
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. 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 or more after the alleged
rape. Additional circumstances exist whereby
allowing DNA as probative evidence of a rape
suspect's guilt prejudices an otherwise innocent
defendant, through misidentification and improper
handling of DNA evidence (leading to
cross-contamination), for example.<17>
Cautionary observations also demonstrate how concerns about
probative value and staleness intersect:
The premise that DNA evidence is dispositive,
however, is not always true. First, there are
cases in which a defendant might succeed in
raising a reasonable doubt about the reported
results of the DNA tests. This situation would
arise, for instance, when there is reason to think
that samples were switched or cross-contaminated
in the laboratory or in the collecting and
handling of the trace evidence before it reached
the laboratory. Many years later, the police
officers and laboratory personnel involved could
be impossible to locate, and the written records
--------------------
<16> Id. at 1094-1095.
<17> Bernasconi, supra, note 2, at 1000-1001 (citations
omitted).
(More)
AB 1219 (Simitian)
PageQ
remaining might be inadequate to resolve these
claims.
Second, even if one were to conclude that such
cases are too rare to be an obstacle to creating
an exception to the statute, DNA evidence can be
conclusive only as to one factual issue - whether
the DNA in the trace evidence somehow originated
from the defendant. Without more, proof of that
factual issue ordinarily falls far short of
demonstrating guilt for every type of sexual
assault. Thus, a defendant's semen might be
present on an alleged victim's clothing or a
bedsheet even if there had been no penetration,
and it would be expected to be found in a vaginal
swab if the sex had been consensual.<18>
SHOULD THE CORPUS IDENTITY FILINGS AUTHORIZED BY THIS BILL APPLY
TO ALL CRIMES?
IF NOT, IN WHICH CRIMES WOULD GENETIC PROFILE EVIDENCE PROVIDE
AN APPROPRIATE BASIS FOR IDENTIFYING AN ACCUSED IN A CRIMINAL
COMPLAINT AND ARREST WARRANT?
6. "Biologic" and "Biometric" Symbols
As noted above, " biologic symbol " under this bill would mean
"any alphanumeric, analog or digital signal, image or
representation that is caused or produced by a chemical,
mechanical, radiological, biological or physical process or
analysis of fluid, cell, tissue or waste product from a person,
having sufficient characteristics so as to distinguish that
person, to a reasonable certainty, from all other persons." It
is unclear exactly what would fall within the scope of this
apparently wide definition; at a minimum, DNA would appear to be
---------------------------
<18> DNA Typing: Emerging or Neglected Issues, Edward J.
Imwinkelried and D.H. Kaye, 76 Wash. L. Rev. 413 (April 2001),
p. 473.
(More)
AB 1219 (Simitian)
PageR
included.
As noted above, biometric symbol under this bill would mean "any
image or recording, produced by the interaction of a person with
an object, medium, instrument or device, having sufficient
characteristics so as to distinguish that person, to a
reasonable certainty, from all other persons."
The word "biometric" is defined by Merriam-Webster's Collegiate
Dictionary as "the statistical analysis of biological
observations and phenomena." As explained by the National
Biometric Test Center at San Jose State University, "(t)he term
'biometric authentication' refers to the automatic
identification, or identity verification, of living individuals
using physiological and behavioral characteristics. Biometric
authentication is the 'automatic', 'real-time', 'on-forensic'
subset of the broader field of human identification. There are
two distinct functions for biometric devices: 1. To prove you
are who you say you are. 2. To prove you are not who you say you
are not."<19>
According to the Biometric Consortium, "(b)iometrics are
automated methods of recognizing a person based on a
physiological or behavioral characteristic. Among the features
measured are; face, fingerprints, hand geometry, handwriting,
iris, retinal, vein, and voice."<20>
It therefore would appear that this bill would authorize
criminal complaints and arrest warrants to be based on any of
the following measurable features:
Face;
--------------------------
<19> National Biometric Test Center at San Jose State
University website: http://www.engr.sjsu.edu /biometrics/
<20> http://www.biometrics.org/ . According to this website,
"The Biometric Consortium serves as the US Government's focal
point for research, development, test, evaluation, and
application of biometric-based personal
identification/verification technology." (Id.)
(More)
AB 1219 (Simitian)
PageS
Fingerprints;
Hand geometry;
Handwriting;
Iris;
Retinal;
Vein; and
Voice.
The process of authenticating biometric data is described in one
article as a three-step process that requires "comparing a
registered or enrolled biometric sample (biometric template or
identifier) against a newly captured biometric sample (for
example, the one captured during a login). This is a three-step
process (Capture, Process, Enroll) followed by a Verification or
Identification process."<21>
The readiness of these technologies for the use proposed by this
bill appears to be varied and uncertain. For example, the
Forensic Imaging Group at the University of Kent, England,
describes "face-matching" as a "method to provide quantitative
evidence as to whether two photographs or digital images are of
the same person." On its website, the Group explains that they
are continuing "to develop this technique with the Police Force
to make it sufficiently rigorous for presentation as substantive
evidence in a court of law."<22> Fingerprints, long regarded as
the "gold standard of forensic evidence, recently have been the
subject of heightened scrutiny regarding their infallibility
and, more specifically, the consistency of the standards used to
---------------------------
<21> Biometrics - Technologies for Highly Secure Personal
Authentication, Fernando L. Podio, Convergent Information
Systems Division, Information Technology Laboratory, National
Institute of Standards and
Technology (available online at:
http://www.itl.nist.gov/lab/bulletns/bltnmay01.htm)
<22> See University of Kent at Canterbury, School of Physical
Sciences, Forensic Imaging Group website: http://www.ukc.ac.uk .
(More)
AB 1219 (Simitian)
PageT
analyze them and produce reliable matches."<23> Hand geometry,
according to one source, "uses the geometric shape of the hand
for authenticating a user's identity. Authentication of
identity using hand geometry is an interesting problem.
Individual hand features are not descriptive enough for
identification. However, it is possible to devise a method by
combining various individual features to attain robust
verification."<24>
A full discussion of the accuracy and reliability of biometric
and biologic symbols for purposes of being the basis of a
criminal complaint or arrest warrant are beyond the scope of
this analysis. The Committee may wish to consider, however,
that these sciences continue to evolve and rely, with respect to
their credibility, on fundamental technologies, practices and
applications. As explained by one commentator's analysis of the
use of DNA in criminal proceedings:
In sum, in little more than a decade, DNA typing
has made the transition from a novel set of
methods for identification to a relatively mature
and well studied forensic technology. However,
one should not lump all forms of DNA
identification together. New techniques and
applications continue to emerge. These range from
the use of new genetic systems and new analytical
procedures to the typing of DNA from plants and
animals. Before admitting such evidence, it will
be necessary to inquire into the biological
principles and knowledge that would justify
inferences from these new technologies or
--------------------
<23> See Do Fingerprints Lie?, Michael Specter, The New Yorker
(May 27, 2002); see also discussion in United States v. Plaza
(U.S. Dist. Ct., 2002) 179 F. Supp. 2d 492; subsequent opinion
at United States v. Plaza 188 F. Supp. 2d 549; and On the
Individuality of Fingerprints, S. Pankanti et.al. ("One of the
most fundamental questions one would like to ask about any
practical biometric authentication system is: what is the
inherent discriminable information available in the input
signal? Unfortunately, this question, if at all, has been
answered in a very limited setting for most biometrics
modalities, including fingerprints." (emphasis in original)
(available online at http://biometrics.cse.msu.edu/cvpr230.pdf).
<24> See Michigan State University, Biometrics Research
website: http://biometrics.cse.msu.edu .
(More)
AB 1219 (Simitian)
PageU
applications.
In the past decade, a dizzying array of DNA
technologies - from gel electrophoreses of
single-locus RFLPs, to PCR-based studies of STRs,
to mitochondrial DNA sequencing - has materialized
in American court-rooms. The predictable result
has been a proliferation of evidentiary issues.
Yet, several important questions have received
little in the way of careful consideration. <25>
7. Additional Factors to Consider
(More)
---------------------------
<25> Imwinkelried and Kaye, supra, at 458 and 474 (citations
omitted).
A number of ideas have been suggested by experts and
commentators to prevent abuse of statutes extending limitations
periods based on the use of genetic profiles. The Committee
and/or author may wish to consider the following in the context
of this bill:
require that the biologic or biometric sample be split and
preserved so the accused can have it retested independently,
including enacting strict guidelines to ensure the proper
handling and documentation of samples;
provide that biologic or biometric complaints and warrants are
employed only as a last resort, with a mandatory showing of
due diligence in the law enforcement investigation and
prosecution;
allow biologic or biometric complaints and warrants only where
the particular evidence (i.e., DNA) is so probative that there
is a reasonable certainty that the criminal conduct occurred
(i.e., that the sexual contact in a rape case occurred); and
limit "corpus identify" filings to crimes serious enough to
outweigh the potential prejudice to a defendant (i.e., exclude
misdemeanor cases).<26>
SHOULD ANY OR ALL OF THESE BE CONSIDERED FOR THIS BILL?
Given the complexity of this bill and the legal and scientific
issues it raises, the Committee and/or the author may wish to
discuss whether a task force comprised of a balanced panel of
experts from these fields should be assembled to examine these
issues and develop a set of comprehensive recommendations.
SHOULD A TASK FORCE BE ASSEMBLED TO EXAMINE THE ISSUES RAISED BY
THIS BILL AND MAKE RECOMMENDATIONS?
8. Standards for Admission of New Scientific Evidence in
California
---------------------------
<26> See Bieber, supra, at 1097-1098.
(More)
AB 1219 (Simitian)
PageW
This bill would allow prosecutors to toll the statute of
limitations in order to provide unlimited time for actually
apprehending an accused. In addition to the other issues raised
by extending prosecutions in perpetuity, this approach would
appear to require that prosecutors establish the reliability of
the scientific method they employ to toll a limitations period
once the accused is before the court.
As explained by the California Supreme Court, "evidence based
upon application of a new scientific technique such as DNA
profiling may be admitted only after the reliability of the
method has been foundationally established, usually by the
testimony of an expert witness who first has been properly
qualified. The proponent of the evidence must also demonstrate
that correct scientific procedures were used."<27>
The scientific technique on which evidence is
being offered must have gained general acceptance
in the particular field to which it belongs.
However, Kelly does not demand that the court
decide whether the procedure is reliable as a
matter of scientific fact: the court merely
determines from the professional literature and
expert testimony whether or not the new scientific
technique is accepted as reliable in the relevant
scientific community and whether scientists
significant either in number or expertise publicly
oppose [a technique] as unreliable. General
acceptance under Kelly means a consensus drawn
from a typical cross-section of the relevant,
qualified scientific community.<28>
It is unclear from this bill when a court would establish the
reliability of the scientific methods the bill would authorize.
Under this bill, an accused may not be prosecuted until years or
---------------------------
<27> People v. Soto (1999) 21 Cal. 4th 512, 519 (citations
omitted).
<28> Id. (citations omitted).
AB 1219 (Simitian)
PageX
even decades after the complaint is filed or the warrant is
issued. If the reliability of the symbol used for purposes of
tolling the limitations period is not considered by the court
until after an arrest, the court would be faced with
establishing reliability either by the standards in effect at
the time of the filing or issuance of the arrest warrant, or
those in effect when the accused is personally before the court.
Given the evolution of DNA standards, the possibility of a
person being prosecuted based on obsolete biologic or biometric
technology seems reasonable to expect.
HOW WOULD COURTS ESTABLISH THE RELIABILITY OF A COMPLAINT OR
ARREST WARRANT BASED ON A BIOLOGIC OR BIOMETRIC SYMBOL?
HOW WOULD COURTS ADDRESS CASES WHERE THE COMPLAINT OR WARRANT
WAS BASED ON OBSOLETE OR LOST BIOLOGIC OR BIOMETRIC TECHNOLOGY?
***************