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Milwaukee Criminal Defense Law Blog

'Genetic surveillance': Police use of DNA databases and privacy

If you take a genealogy test, you could be exposing your family, from your kids to your distant relatives, to the possibility of having their genetics exposed to third parties, including law enforcement.

This is because companies like GEDmatch have created massive databases of results from consumer genealogy companies like 23andMe and If your genetic profile is uploaded to GEDmatch or a similar database, everyone you're related to can be extrapolated from your DNA.

It may be far harder to decline a police search than many believe

You have a right to withhold your consent when police ask to search your clothing, home, car or belongings, although many people don't realize it.

Police almost always ask for consent before searching because consent simplifies the issue of whether a search was justified. If they were to search you without probable cause to believe a crime was in progress or had been committed, the evidence they found might not be admissible in court. If they obtain your consent to the search, however, the evidence is usually admissible.

TSA body scanners may discriminate against black women, Muslims

According to the government, the full-body scanners that are standard at airports cost about $150,000 each. In the last decade or so, the Transportation Security Administration has invested over $100 million on the scanners, which are called "millimeter wave machines."

Unfortunately, these machines have a major flaw. They can detect non-metallic objects, but they can't tell what they are. And that includes hair -- especially African-American women's hair. The machines create a false alarm when people have Afros or wear dreadlocks, braids or twists. They also set false alarms on turbans, wigs and hair extensions.

2018's exonerees lost 1,639 years to wrongful convictions

According to the National Registry of Exonerations' annual report, 151 people were exonerated in the U.S. in 2018. Together, they spent 1,639 years behind bars for crimes they didn't commit -- an average of about 11 years each.

Unfortunately, that was a record. The Registry, which tracks all U.S. exonerations since 1989, reports that U.S. exonerees have spent a total of 20,000 years in prison. All those years for crimes they didn't commit -- or crimes that never even occurred.

Child porn-tracking software leads to false accusations, arrests

The Confrontation Clause in the Sixth Amendment to the U.S. Constitution guarantees that, "in all criminal prosecutions, the accused shall enjoy the be confronted with the witnesses against him." The courts have read this to mean that criminal defendants have the right to fully confront any evidence brought against them.

When the evidence is technological in nature, the Confrontation Clause gives the accused the right to fully examine how that technology works. The defense needs this in order to challenge whether the technology works as described, whether it worked properly in a particular case, and whether its use violated the suspect's other constitutional rights.

Federal lawsuit seeks to halt Wisconsin's lifetime GPS monitoring

Last September, the then-attorney general announced that people with two or more convictions for sex offenses would be required to wear GPS monitors for life. He ordered 180 people to get fitted for GPS bracelets within 5 days.

Those required to enter the lifetime monitoring program are also required to pay for it, at a cost of up to $240 per month. Removing the monitor is a felony.

Intrusive, coercive child protection process must be reformed

In 1974, a federal law was passed requiring doctors, many healthcare professionals and others to make a report to the state's child protection agency when they reasonably suspect child abuse or neglect.

According to data from 2016, child abuse hotlines received calls about 7.4 million American children. Last fiscal year in Illinois, for example, 77,422 families were investigated for potential child abuse or neglect. However only 20,023 -- just over 25 percent -- of those investigations concluded there actually was abuse or neglect.

Even more private genetic info could be in databases soon

Do people have any real privacy rights when it comes to their DNA? Who should have the right to own or control information about your DNA?

A recent article in The Atlantic revealed that some DNA testing companies are now ready to test old-fashioned envelopes and stamps that people would lick to dampen the adhesive. Licking the adhesive would have deposited DNA that may still be preserved enough to test.

DNA can be transferred to objects via handshakes, at random

Could ordinary contact with other people spread your DNA to objects you've never touched?

Yes, according to an important presentation at a recent meeting of the American Academy of Forensic Scientists, an internationally prestigious event held each year. About 7 percent of the time, DNA was transferred to a knife by a person's handshaking partner. This occurred after only a 10-second handshake.

'Making a Murderer' defendant Steven Avery wins evidence appeal

If you remember the Emmy Award-winning documentary series "Making a Murderer," you know there is good reason to suppose that the defendants, Steven Avery and Brendan Dassey, were wrongfully convicted of the murder of Teresa Halbach. As the documentary showed, Attorney Dean Strang and I represented Avery at trial.

Recently, Kathleen Zellner, the current attorney for Avery, won an appellate motion. Ultimately, the win could lead to a new hearing, a new trial or a reversal of his conviction.

Attorney Zellner had previously moved to have certain evidence DNA tested with a newly developed type of DNA test -- a number of suspected burned human bones that might have belonged to the victim. 

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