Amy (amy_elysian) wrote in little_details,

A "dead" witness, the Confrontation Clause, and DNA extraction capabilities

Setting: The United States, 1996, midsize city, the exact state indeterminate but probably in the west/southwest.
Searches: (1) variations and combinations of "died before trial," "deceased witness," "confrontation clause," "Ohio v. Roberts" (2) variations and combinations of "DNA testing," "history," "saliva," "dried saliva," "kiss"

Scenario (1): A victim of gang rape heads to the nearby hospital (if relevant, with ID that has him as a seventeen-year-old British citizen) initially claiming to have been "in a fight" and then spilling about the sexual component when the police officer shows up. After his medical examination, the same day of the rape, he gives a long, detailed statement to police. Then, some time later, once back in England, he fakes his own suicide (he doesn't want to appear in court, for various reasons). As far as the legal system is concerned, he's dead. Later, at the trial (his is not the only charge), there's a courtroom argument over the admissibility of his statement.

I understand that as of 2004 the statement would be definitely inadmissible since there was no opportunity to cross-examine, hence violating the confrontation clause of the Sixth Amendment, but as far I can tell things would have been more flexible at this point in time since the decision of Ohio v. Roberts would still be in effect. I'm not sure, however, if its criteria would be flexible enough for his statement to get in, even with a whopping great argument over it. If not, what would be ways to improve the odds? The character is well-educated in American law and very determined to have the rapists convicted, so he would work hard to make his own "posthumous" testimony admissible; the element of the faked death is nonnegotiable and he would rather not personally confront the rapists at any stage.

As a last resort, if necessary, I was considering having him give a recorded deposition, and the other parties would waive their right to be present and cross-examine since they've previously been established to be extremely arrogant pricks. Would that work?

Scenario (2): I understand that it's currently possible to pull DNA evidence from the saliva in a kiss on the skin. I'm not sure whether that would have been the case in 1996, if a swab was taken 2-3 hours after the kiss - let alone whether it could be enough to make a complete match (or a one-in-several-billion match) with a person. Assume top-notch equipment and technicians.
Tags: ~forensics (misc), ~law (misc)

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