Types of Forensic and Scientific Evidence Common in a Military Court-Martial
DNA and Biological Evidence
DNA (USACIL has new staff dedicated to Military Sex Crimes and Sexual Assault); DNA can be found on buttons, clothing, belts, bed sheets, floor, sometimes even on door handles; consult or learn where it may be found; even late reports or washed clothing can yield DNA;
- Insist on DNA testing where it is likely to exist,
- Corroborates that this accused had sex with the victim
- If the trial counsel relies on an admission by the accused, trial counsel must put that statement in evidence, with its exculpatory story. Accused is much less likely to testify.
Trace evidence
Trace Evidence: look for hairs, fibers: test them; {trial counsel & military defense lawyers: be aware of challenges to “trace evidence” contained in the “NAS report”;2}
Transfer evidence
Transfer of evidence goes both ways! – look for Article 120 UCMJ victim’s DNA, hair, fibers on the offender; command authorization to search or consent to CID agent needed for suspect sexual assault forensic examination kit;
Test the evidence (consult with USACIL, but decide for yourself what needs to be tested
- relying on the admission of the sexual act requires the government to introduce the exculpatory statement of the accused, which is usually bad trial tactics
- panels expected to test
- often corroborates the victim’s report; could be exculpatory & discoverable {DC: insist on testing in the right case}
- present even negative results (at least you tried! Avoids “the government could have
tested that evidence, but they didn’t”)
Y-STR DNA TESTING – SAMPLE CROSS-EXAMINATION OF DNA EXPERT
Point: Y-STR testing could have excluded the Defendant
Q: The alleged victim says that Defendant had sexual intercourse with her and ejaculated?
Q: Even though you did not find any semen, DNA testing was performed on the alleged victim’s vaginal swabs, perineal swabs, and underwear?
Q: You found a mixture of male and female DNA on those items?
Q: There was such a small quantity of male DNA that you could not perform autosomal STR testing?
Q: You could have tested her vaginal swabs using Y-STR DNA testing?
Q: You could have tested her perineal swabs using Y-STR DNA testing?
Q: You could have tested her underwear using Y-STR DNA testing?
Q: Y-STR testing is DNA testing that only generates DNA profiles from male DNA regardless of the presence of female DNA in a sample?
Q: Your laboratory has the capability of performing Y-STR testing?
Q: You’ve performed Y-STR testing in previous cases?
Q: You’ve performed Y-STR testing on genital swabs and underwear in previous cases?
Q: You’ve testified about Y-STR test results in other trials?
Q: Y-STR DNA testing is part of your standard operating procedures?
Q: If you had performed Y-STR testing in this case, the Defendant might have been excluded as the source of male DNA found on her vaginal swabs, perineal swabs, and underwear?
Q: You are here testifying that the male DNA could be from the Defendant without actually confirming that with actual DNA testing?
Q: You are here testifying that the male DNA could be from the Defendant without using all of the DNA testing methods available at your laboratory?