Post details: A.F.Ct.Crim.App.: Inevitable discovery saves DNA taken by consent later revoked in sex assault case

08/26/13

Permalink 06:01:29 am, by fourth, 410 words, 403 views   English (US)
Categories: General

A.F.Ct.Crim.App.: Inevitable discovery saves DNA taken by consent later revoked in sex assault case

The defendant service member was accused of aggravated sexual assault, and he consented to a DNA draw. Four days later, before it would be tested, he revoked his consent, and the revocation was legally effective. Inevitable discovery, however, saves the use of the DNA at trial. The record could have been better made by everybody involved, but there is enough to conclude that the evidence would have been inevitably discovered and a warrant issued for the DNA if there was no consent. [It would have been better to have gotten a warrant after consent was revoked, but it still survives here.] United States v. Keller, 2013 CCA LEXIS 665 (A.F. Ct. Crim. App. July 15, 2013):

[More:]

The appellant argues that the Government had the burden of proving the evidence would have been inevitably discovered and, by presenting no evidence during the motions hearing, failed to carry its burden and essentially forfeited this rationale as a basis for admission of the DNA results. He specifically notes there was no evidence presented in the motions hearing that (1) SrA KD had specifically identified the appellant as the man who had assaulted her, and (2) OSI agents would have sought to seize and search the appellant's blood through probable cause. Because of that, the appellant contends the military judge's inevitable discovery conclusion is unsupported by evidence.

The appellant is correct that no evidence about SrA KD's identification of the appellant or the timing of that identification was presented to the military judge prior to his verbal denial of the defense motion. However, evidence of that fact was presented during the findings portion of the trial, through her testimony and that of the AFOSI agent who interviewed her the morning of 18 July 2009, several hours after the alleged assault. Although not ideal from a procedural prospective, we do not find error here in the military judge's decision to incorporate evidence from the litigated trial into his findings on the motion to suppress, especially as the appellant does not contest the accuracy of that factual conclusion. Even if he had issued factual findings in the initial Article 39(a), UCMJ, 10 U.S.C. § 839(a), session, he could have used later-presented evidence from the trial to reconsider those findings at any time prior to his authentication of the record. Rule for Courts-Martial (R.C.M.) 905(f); Harrison v. United States, 20 M.J. 55, 57 (C.M.A. 1985). In doing so, he would be incorporating facts from the findings stage into his ruling on a motion.

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