Wisconsin begins collecting DNA evidence for misdemeanor convictions

Despite questions regarding the cost, effectiveness, and constitutionality of portions of the law, Wisconsin’s police are now taking DNA samples from everyone convicted of a misdemeanor or felony crime.

Using DNA gathered from people convicted of a crime is not a new way to discover evidence to be used in "cold cases" - criminal cases which remain open until further evidence can be obtained. DNA evidence has been collected from those convicted of felonies and some sex-related misdemeanor offenses for some time. Such evidence can occasionally lead to a match between a person recently convicted of a crime and evidence found at a crime scene for which no one was charged with a crime.

Beginning on April 1, however, Wisconsin authorities began more aggressively collecting DNA evidence. Now, anyone convicted of a misdemeanor will be subjected to DNA collection. Importantly, those arrested on suspicion of a violent felony in which a judge finds probable cause a crime has been committed may also have their DNA taken. This is a large departure from previous law.

Defendants must pay a surcharge after their conviction to cover the costs of the new law. However, two appellate judges have already ruled that an additional surcharge issued against defendants prior to the law taking effect on April 1 was unconstitutional. The law imposed an additional fine of $200 to $250 for every conviction beginning January 1, 2014, even though police did not begin collecting DNA samples until April 1, 2015.

The law itself has not been ruled unconstitutional, however, just the fines imposed before its implementation. It is not clear if any constitutional challenges to the new law will have merit. In 2013, the U.S. Supreme Court held in a 5-4 decision that it did not violate the U.S. Constitution for police to take DNA samples without a warrant for those arrested on suspicion of a serious crime, a decision that was met with widespread criticism from many advocates of civil liberties.

Many are questioning the new law's effectiveness and privacy violations

Forensic evidence is often considered by the public to be ironclad evidence. Popular television shows reinforce this idea, as in many crime procedurals intelligent forensic experts in high-tech offices manage to solve difficult cases through DNA evidence, a lock of hair, or a muddy footprint in an hour or less.

In real life, forensic evidence is not nearly so neat and efficient. For example, two weeks after Wisconsin's new law took effect, The Washington Post published an article that revealed the Justice Department and the FBI acknowledged that nearly every examiner in one FBI forensic unit involving hair samples gave misleading testimony. Of the 268 trials in which hair evidence was used against defendants by that unit, a shocking 257 of those involved flawed testimony regarding the reliability of the "hair match."

A vigorous defense against forensic evidence

Despite the new law, criminal defendants do still have constitutional rights regarding their own DNA. For example, any evidence collected in violation of the Fourth Amendment protection against unreasonable search and seizure cannot be used in court. In addition, just because someone's DNA is found at a crime scene, it does not mean he or she committed a crime.

If you are facing criminal charges in Wisconsin, contact the law office of Nicholson, Gansner & Otis, S.C. to protect your rights in the criminal justice system.

Keywords: DNA collection, criminal defense, constitutional rights, DNA evidence.