Felony Lawyer Defenses Against DNA and Forensic Evidence

How is your felony lawyer going to defend you if there's significant DNA evidence against you? Forensic testing has sent thousands of criminals to prison and has even set the innocent free, but the use of DNA evidence in a court case is still controversial due to the complexity of analyzing and testing samples, as well as human error. While it may seem like the odds are against you, a skilled felony lawyer can construct a plausible defense without necessarily resorting to a plea bargain, regardless of DNA evidence.

One of the main defenses against DNA evidence is human error. This still happens often. Crime scenes are extremely delicate, and one false move by an analyst, police officer, or other party can result in the mishandling of evidence. There is a big difference between a hair particle found in a brush and one found on a body, so these small distinctions are crucial during trial. An attorney can investigate to determine whether or not procedure was followed correctly or if there were potential mistakes were to blame.

A felony lawyer who is experienced with DNA evidence knows that a report is much more complicated than a simple positive or negative result. Many times tests are ambiguous. Your attorney should review all analysis carefully for weaknesses or inconclusive outcomes. The DNA analyst who runs the test may not know enough about the case to make a conclusive statement on whether or not the sample can be unequivocally traced back to the suspect. This is where an attorney can step in and research further on their own or with the assistance of other DNA experts.

When a forensics analyst takes the stand during a trial, the felony lawyer should be prepared for a ruthless cross examination, especially if there were clear errors or misreading regarding the test results. It's also important to question their testing methods as technician error during analysis could be another potential issue.

DNA isn't a magical answer to every crime, although prosecutors often seem to think otherwise. Just because a small particle is plucked and tested doesn't mean that what is found is even substantial enough to result in a concrete analysis. An inexperienced felony lawyer, however, might be intimidated by the potential damning evidence. As a result, they might persuade clients to enter a plea bargain when it isn't the ideal option. A client should consider this carefully and possibly even seek different counsel if there was little effort to create defenses against the DNA.

Few cases are as black and white as they may appear at first glance. Don't let distress or anxiety get the better of you. A good attorney can help you retain your rights and choose the best method for proceeding with the trial. Don't believe the myths that you may have heard about a single strand of hair sending a man to jail for a life term. DNA is very complex and does require a specialized attorney, but justice can still prevail.

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Guide to the Use of Lay Evidence in a Veterans Benefits Claim

When a military Veteran files a disability or benefits claim with the Department of Veterans Affairs for compensation due to injuries that occurred in military service, they are not required to rely solely on medical evidence. In fact, since soldiers rarely go on sick call when they are injured - and since service medical records are not always preserved or accurate - Veterans are encouraged to rely on lay evidence or testimony to substantiate their claim.

In fact, when a Veteran introduces lay evidence into the record the VA Regional Office (VARO), Board of Veterans Appeals (BVA) and the Court of Appeals for Veterans Claims (CAVC) must consider the lay evidence.

What is lay evidence? It is a broad category - generally, it is any evidence or testimony that does not come from an expert - medical or otherwise.

Here are some situations when a Veteran can (and should) use lay evidence or testimony:

1) If a Veteran has someone that can describe the symptoms of a particular medical condition or injury, it is permissible to support a subsequent diagnosis by a medical professional. This was essentially the holding in Jandreau v. Nicholson , 492 F.3d 1372 (Fed. Cir. 2007). So, for example, if a Veteran has been diagnosed with Parkinson's disease, he or she can introduce lay evidence of the symptoms of Parkinson's that other people observed in the past.

2) A veteran can use lay evidence or testimony to identify some medical conditions. These are usually going to be medical conditions that are simple or unmistakeable like a broken leg. Sometimes, lay evidence or testimony can prove a more complex condition - like Parkinson's disease - because the symptoms are so readily recognizable. Compare that to cancer - a lay witness or lay testimony will rarely be able to prove-up the symptoms of pancreatic cancer - though many of us are familiar with the disease, non-medical witnesses are generally not competent to testify to its symptoms or diagnosis.

3) A veteran can always use lay evidence or testimony to try to prove-up a contemporaneous medical diagnosis. For example, a Veteran can testify that he was diagnosed with a medical condition.

4) A Veteran can - and should - use lay evidence or testimony to prove up factual matters within that witnesses personal knowledge. These are commonly known as "buddy statements", and are competent evidence to prove that a Veteran experienced pain in service, went on sick call, was placed on limited duty, received physical therapy, etc. The uses are boundless - the key element however is that the witness must have personal, first-hand knowledge. A more in-depth discussion of this use is found in Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).

A common use of Number 4, and the rest of the examples, is to prove up "continuity of symptomatology" - a legal element of direct service-connection in some types of Veterans' claims.

If a Veteran does provide lay evidence or testimony, neither the VARO or the BVA can exclude or fail to consider this evidence simply because it refers to or discusses medical matters. (Believe it or not, the BVA does this very thing quite frequently).

Instead, the VARO and BVA must:

1) Make a determination as to whether lay evidence is what the law refers to as "competent" (i.e., sufficient to prove what it seeks to prove). If the BVA or VARO decides it is not competent, they will have to include an adequate explanation of that conclusion. This is discussed in Jandreau v. Nicholson , 492 F.3d 1372 (Fed. Cir. 2007).

2) The VARO or BVA have to weigh the evidence: in other words, they have to put the lay evidence on a scale against the other evidence that is in a Veteran's record. The purpose of weighing the evidence is to decide whether it is probative or not. Read more about this requirement in Buchanan v. Nicholson , 451 F.3d 1331 (Fed. Cir. 2006).

3) The BVA or VARO may, in certain situations, need to determine whether or not the evidence is credible. Credible doesn't always mean "true" or "false" - it really just means whether the evidence can be relied upon by the person making a decision on issues of law or fact. For example, someone might tell you that a car accident just happened at the intersection of Main and 1st Street. That may or may not be true - but you might be more likely to believe it is true based on certain factors: who told you, why they told you, where they told you, etc. You'd be more likely to believe something like that is true if the person telling you was covered in blood and 1 block from the intersection. You can read more about this element in Barr v. Nicholson, 21. Vet. App. 303 (2007).

If you find yourself in a position where a VA Regional Office - or the Board of Veterans' Appeals - has ignored or disregarded lay evidence or testimony that you submitted without given you an adequate reason or basis for its decision, you may have grounds to appeal the decision to the Court of Appeals for Veterans Claims.

If you are a Veteran and have questions about your VA Benefits claim contact a Veterans Benefits attorney.

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