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Restraining Order Defense

Domestic violence can be a physical, a verbal threat of physical violence or a pattern of harassing behavior. A temporary restraining order, (TRO), can easily be filed against you and can force you to stay away from your home and children. Domestic Violence restraining orders can be filed at the Family Courthouse in downtown San Diego. TRO’s are free to file and more common than you think. TRO’s can be granted within the same day of filing and have an immediate effect on your rights to enter your home and visit your children.

Domestic violence orders are special because they require the petitioner prove the case with substantial evidence. They must prove the two of you are in a “domestic relationship” defined by the Family Code. The relationship can be very minimal, so almost anyone from your life or past life can satisfy this requirement. Someone you used to date or even live with or whom you are closely related with could easily satisfy the domestic relationship requirement and file a TRO against you. Further, the petitioner must demonstrate you threatened violence, committed an act of violence, or harassed the petitioner. Even with these requirements, the court will often grant TRO’s to air on the side of caution to protect individuals from potential harm. It is crucial that you have an attorney defend you against a TRO if one is filed against you.

Hiring an attorney to defend you in TRO case will give you the upper hand. The petitioner can schedule a hearing without notifying the defendant. Your immediate life and living situation can severely be affected in that you may not be able to step into your own home. It is best to hire an attorney to get the best results and prevent any negative consequences that may be coming your way. It is important to have an attorney represent you in these types of cases because having a TRO on your record could have an effect on your future in getting a job or passing a background check. An attorney can inform you of all your rights, one including having a hearing to determine if the restraint should be permanent. TRO’s can last up to 5 years or more. Hiring a trained attorney here in San Diego will ensure you have someone on your side that will be able to interrogate the other side and get the truth out. Further hiring an attorney will allow you to appeal the TRO if it may have been improperly granted.

Also, if you are on the other side and fear your life is in danger, it is imperative that you have an attorney properly assist you preparing the DV-100 forms to properly keep you out of danger. DV-100 forms are a request for Domestic Violence Restraining Order. This is a four-page form that describes the facts of the case to the judge and the orders you are asking the judge to make.  However if an order has been filed against you, you want to tell the court your side of the story by filling out the DV-120 forms. DV-120 form is a response to request for domestic violence retraining order that should be filled out before the hearing date. It is important to have the court hear your side of the story to lift the TRO and move forward with your life.

San Diego Criminal Defense Attorney Vik Monder is highly skilled in criminal defense litigation including domestic violence. The courts take domestic violence seriously and would likely side with an exaggerated story in order to protect alleged victims of violence. You do not want to deal being forced out of your home and having to deal with the immediate effect these TRO’s have. Make sure you hire an attorney the second you are informed an action will be taken against you. Hiring an attorney will mitigate the negative consequences you may be facing. Take action for your rights, and don’t let people abuse the court system as way to retaliate against you. Hire Vik Monder here in San Diego to defend you against a TRO and any further criminal actions that may spawn from a TRO.

If you have any questions about restraining order defense in San Diego, contact San Diego Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Lawyer

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San Diego Domestic Violence

If you are being charged with a San Diego domestic violence charge, the prosecution will attempt to introduce evidence of prior offenses or acts of domestic violence that you have previously committed to prove you committed the current charge. The prosecution has more leeway to introduce this type of evidence in an attempt to sway the jury and demonstrate that if defendant has acted in certain way in the past, they have likely committed the crime they are being charged with. This evidence is known as propensity evidence. Propensity evidence is evidence of a past character trait, act, or previous crime that is used to demonstrate that the defendant likely committed the current charged crime. Prosecution will often bring up evidence of past crime of domestic violence the defendant has committed as a way to prove he more than likely repeated the crime and was acting within that character trait.

 The law has set limits on the admissibility of propensity evidence, as the law understands that people do change and it is unfair to hold their past against them. The law understands that sometimes people are placed in wrong situations at the wrong time. It is important to hire an attorney that will fight for your rights and demonstrate to the court that the evidence the prosecution is trying to admit is not determinative. There are some instances where propensity evidence is admissible, which is in domestic violence cases and sex crimes. Evidence Code § 1109 governs admissible propensity evidence in San Diego domestic violence crimes. Evidence Code §1109 subdivision 1109(a) provides that in a criminal action in which the defendant is accused of an offense involving San Diego domestic violence, evidence of the defendant’s commission of other San Diego domestic violence is not inadmissible. This means prosecution can bring up evidence of bad acts or crimes committed in past to show you committed the crime you are charged with.

The prosecution often attempts to admit evidence of defendant’s prior acts or crimes through an exception as tactical methods get the evidence admitted and to sway the jury. The prosecution understands that prior similar acts of a crime are highly persuasive in convincing the jury the defendant committed the current crime. The jury at often time can be easily swayed by propensity evidence or use it in the improper way by giving the evidence more weight than they should.
If you are being charged with a serious crime, it is imperative you hire a skilled criminal defense attorney. Vik Monder is a trained attorney whom recognizes the prosecution’s tactical methods and will object to admitting this prejudicial evidence. If the evidence is admitted in your criminal case, Vik can mitigate the situation by cross-examining the other side to bring light to the fact this evidence is miniscule and not determinative to the situation. Also through cross-examination, Vik will bring light to the reasons these acts or crimes were committed so the jury will understand the circumstances surrounding the past situation. It is also important to hire a skilled attorney that will make sure proper jury instructions are given. If the judge allows this prejudicial evidence to be admitted at trial despite the objections, this can seriously hinder your case. It is imperative that your attorney ensures proper jury instructions are given. The jury must be informed on how to properly use evidence that is admitted and not give weight to evidence made admissible. Jury members can easily use admitted evidence for the wrong purpose, they must be informed that they only use it for a certain purpose and prevent prejudicial interpretation.

Although other acts of domestic violence are admissible, not just any crime can be used and labeled as a crime of domestic violence. Evidence Code section §1109 lays out the definition of what act constitutes as San Diego domestic violence. Evidence of child endangerment, elder abuse, or San Diego domestic violence can be entered. However, an act that is more than 10 years old is not admissible. It is important to get the right criminal defense attorney in San Diego that is trained to recognize and object to the admission prejudicial evidence to get you the right results you deserve.

If you have any questions about San Diego Domestic Violence, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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DUI Expert Witness

When a DUI expert witness is involved with a case, a motion for a 402 hearing is normally requested for the defense. A 402 hearing is to determine if the evidence is admissible and to determine if the prosecution “expert” is truly a DUI expert witness in the applicable field. A defendant would also request a 402 hearing to question an officer’s qualifications regarding HGN or horizontal gaze nystagmus. A witness can also be discredited when using an opinion of guilt and intoxication for the purposes of driving.

A testimony that links a specific blood alcohol concentration to the presence of HGN would also be questioned. The officer’s ability to administer a PAS test can also be argued by questioning if the instrument was in proper working order, the test was properly administered, and the operator was competent and qualified. An officer must comply with set procedures when administering a breath test, and without proof of this being properly administered, can be argued.

The verdict of innocence or guilt is determined by the jury. It is improper for a DUI expert witness to declare this because of their suspicion of intoxication. An expert opinion generally can be put into question based on the expert’s qualifications. A DUI expert witness may not have an advanced degree in a field and solely possesses a simplistic understanding of the topic. A common witness opinion used is that all people are impaired for the purposes of driving at 0.05% BAC. There is no supporting documentation of this nor is that the law. Different BAC’s affect people in different ways. Without proper citation of that claim, the evidence should not make it to the jury.

A DUI expert witness will testify based on studies that the DUI expert witness is involved with. These studies are often times not published, and the no information about the studies is provided to the defendant. The invalidity of the studies can be argued. Unless a DUI expert witness has an advanced degree in physiology, organic chemistry, biochemistry, anatomy, or other applicable sciences, the prosecution may not be as concrete. Only the general notions of the effects of alcohol would be valid, and since this is considered common knowledge, an expert will not be able to testify that information. A DUI expert witness is not qualified to testify regarding how alcohol is processed or how alcohol tolerance plays into mental and physical impairment. The witness would be unable to provide any sort of evidence to cite this claim. Only DUI expert witnesses can give insight into hypothetical scenarios; therefore, witnesses are restricted in doing this. Situations outside a witness’s scope of knowledge, such as field sobriety tests and their effect on the determination of impairment, cannot be testified.

The qualifications of a DUI expert witness do not permit a testimony concerning the workings of the machine in question and its inner workings of determining impairment. The number of drinks correlating to the defendant’s BAC cannot be estimated by a DUI expert witness. The necessary equations and derivations are outside of the witness’s scope of knowledge. Only an extremely simplistic formula may be used, but that may be disputed due to its neglect of important variables. Often times, a DUI expert witness with an advanced degree needs to be used over a DUI expert witness because the claims of a DUI expert witness are more easily supported.

If you have any questions about a DUI expert witness testifying in your San Diego DUI case, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego DUI Defense.

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San Diego Co-Defendant Criminal Case

The problem in a San Diego Co-Defendant Criminal Case arrises when criminal co-defendants are being represented by the same lawyer and one co-defendant may face likelihood of having to suffer a more severe sentence than they deserve. Co-defendants using the same attorney will place a attorney in a position where they may not be able to assist both parties in their best interest because one defendant may be more guilty than the other. If one co-defendant has committed a majority of the offense, the lessor offender may have to suffer the same consequences as a result of the jury, judge, and attorney having an issue distinguishing whom has committed a majority of the offense and they may be tried together.

It is typical for the jury and even the judge to evaluate the situation and consider the co-defendant’s to be considered one. If the co-defendant in your case has committed more of the offense than you, don’t do yourself an injustice and put yourself in a position where you have to suffer the same sentence because your attorney has to fight harder for the other co-defendant. Do not do yourself an injustice, get your own attorney here in San Diego that can help you fight your in your best interest.
Further, if a co-defendant confesses they may incriminate the lessor offender and the lessor offender will have to suffer additional charges. There will be issues with the jury being confused on whom has done what. The attorney may be put in a position where they could not adequately represent the lessor offender because they are trying to protect both parties. There are a number of issues that may arise and are not worth the consequence that can be easily avoided by having your own attorney in a San Diego Co-Defendant Criminal Case.

Do not do yourself an injustice in being represented by the same lawyer in a criminal co-defendant case. Do not let your self suffer harsher consequences than you have to. Come in for a free consultation here in San Diego and let us advise you of your rights and know that we have your best interest in mind and do not let settle for less than what you deserve. Have your OWN counsel and let them work in your favor and your favor alone as opposed to having one attorney represent two people as one. You do not want your attorney to slack off on your issues when trying to help another, you want your attorney to work for just you and work as hard as possible to get you the least charge possible. Do yourself a favor, get your own criminal attorney in a San Diego Co-Defendant Criminal Case.

If you have any questions about a San Diego Co-Defendant Criminal Case contact our office today for answers at 619.405.0063 or visit San Diego Criminal Defense.

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San Diego Sentencing Guidelines

A growing problem in America is the over-crowding of prisons and this has affected San Diego Sentencing guidelines. A solution to this problem are alternative sentencing programs. These programs reduce or avoid jail time and deal with a convict in alternative ways. Programs like additional good time credits, electronic monitoring, home detention, and split sentences are all being utilized to better rehabilitate criminals and to avoid further over-crowding the prison in California. 1170(h) defendants, post release community supervision, and parolees are three new types of offenders now housed or supervised locally. Alternatives to custody as a condition of probation are currently being used. Home detention, work furlough, work release, public work service, sheriff parole, and residential treatment are some examples.

Home dentition involves 24 hours per day GPS monitoring. This applies to those with felonies or misdemeanors, sentenced to probation with a custodial sanction, screened by sheriff’s department, and alcohol monitoring. Eligible individuals cannot flee and are charged with a felony. SOBERLINK is available.

Electronic monitoring is available to those who are eligible for bail and have a valid residence. Exclusion criteria include open warrants, child abuse or stalking charge with a currently valid protection order, any prior sex offense, and have current charges of murder, manslaughter, attempted murder, or any charges with gang, weapons, or GBI enhancements. The court will hear arguments from both parties, set bail, and make a referral. The sheriff will conduct a screening and assessments and make the final decision.

Work furlough or employable work furlough applies to those with no serious mental health or behavioral issues, no serious violence or pattern of assaultive behavior, and no sales or possession of large amounts of drugs. An eligible individual must also be a legal resident and be employed or employable. SDSO now releases offenders to work furlough and employable work furlough.

A split sentence involves a combination of jail time and “mandatory supervision”. The split sentence term cannot exceed the maximum term without a split sentence. This  program is determined by the length of a sentence, availability of the service, defendant’s interests, finality of sentence, and victim/public safety interests. Considerations of a split also involve a consideration of the risk, need, location, and desired outcome.

If you have any questions about San Diego Sentencing Guidelines, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit Award-Winning San Diego Criminal Defense.

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Eyewitness Identification In Criminal Cases

Convicted criminals can often be proven to be innocent even after their verdicts. Advancements in forensic technology, such as DNA testing, have given innocence to wrongfully convicted individuals that could be facing life in person or even be on death row. Eyewitness identification in criminal cases is almost always the culprit of these false convictions.

Memory does not act like a video. Emotion, expectations, and level of focus can alter memories. Specific details are often times not remembered accurately enough to be used as solid evidence. The process involving an analysis of the event in order to identify a suspect can corrupt the true nature of the event at different procedural key points. Recalling the event already produces a questionable synopsis of the memory, but the characteristics of the witness can cause a memory to be more vague. Furthermore, the type of lineup and the behaviors of a lineup administrator can cause variations in the choices an eyewitness makes about a suspect. The worse thing is if the real criminal is not even in the lineup of eyewitness identification in criminal cases.

A witness is asked to identify a suspect in a lineup of people. Although this can be effective if the suspect is actually in the lineup, it can be very dangerous if the suspect is not. This is called the relative judgement process. Eyewitnesses tend to pick an individual that looks the most similar to the actual suspect based on the other individuals in the lineup. The memory of the event is vague, and a person in the lineup that best fits the actual suspect will be picked. The problem is that one individual in the lineup will always look the most like the true suspect, therefore causing a suspect to be chosen whether the choice is right or wrong.

The large majority of wrongfully convicted criminals were convicted due to poor eyewitness identification in criminal cases. Unfortunately, major crimes, such as murders, muggings, burglaries, robberies, drive-by shootings, etc., rarely leave any DNA evidence. This makes it especially difficult to prove that somebody is wrongfully convicted. DNA evidence has shed light to the potential invalidity in eyewitness accounts despite the fact that they can be persuasive. Usual safeguards, such as motions to suppress, cross examination, and juror knowledge do not prevent false eyewitness testimonies. Mistaken identification is known to primarily occur when a lineup of potential suspects is present and the real criminal is not present, causing relative judgement to identify the wrong individual. Also, victim witness accounts are not exempt from false eyewitness identification. Many of the wrongly convicted individuals were accused of sexual assault, partially due to an inaccurate victim testimony. This is a crime where you would think the victim would have certain knowledge of the criminal’s description. Fortunately, other evidence is usually present in a case so that a verdict is not solely based off of eyewitness accounts.

If you have any questions about eyewitness identification in criminal cases, contact San Diego criminal defense attorney Vik Monder at 619.405.0063 or visit Best San Diego Criminal Defense

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San Diego Medical Marijuana Defense

The use of medical marijuana in California can be confusing. Although federal and state law may conflict, law enforcement officers are bound by California’s Constitution to uphold state law. It is important to understand San Diego Medical Marijuana Defense. While dispensaries and physician recommendations exist, government officials may be able to press charges on you. However, with the right precautionary steps and tips when confronted by a police officer, you will be less likely to deal with ramifications of medical marijuana.

The right documentation can go along way. Make sure you apply for the voluntary ID card program and have your written recommendation from a physician with you at all times. This can largely protect you when confronted by officials. Although it is illegal for a physician to prescribe medical marijuana, physicians can recommend its use under the First Amendment. Being a good neighbor can drastically reduce chances of officer contact. By containing the marijuana and avoiding any annoyance to the neighbors, they will be less inclined to report it to the police. Reduce domestic disputes, loud music, illegal parking, barking dogs, parties, and other nuisances that could result in a phone call to the police. Cultivating indoors can reduce the nuisance to neighbors and prevent theft. Keep records of the plants grown, consumed, tossed, bought, etc. Only six mature plants or twelve immature plants are allowed at a time when cultivating. Call an attorney right away if you are under investigation.

Police encounters often involve the police trying to manipulate you. They use manipulative tactics and try to spark a “casual conversation”. Police may detain you at a scene, but not put you under arrest. Ask if you are being detained, and if the answer is no, you are free to leave. Taking notes of what is said and the badge number or having a camera recording the scene to document what the officer is doing can be a good idea. Always say “I am going to remain silent. I want to see a lawyer” if they begin to ask questions. Do not say you are a medical marijuana patient unless specifically asked for that information. Anything you say can and will be used against you, so it is best you let a trained attorney do the talking for you. Police threaten that you will go to jail if you do not answer questions. They are lying. Simply respond, “I am going to remain silent. I want to see a lawyer”.

Never consent to a search. It is best to say “I do not consent to this search”. They still might search you illegally, but cannot use that evidence in court. Saying “I’d rather you not search my car/house” can still legally give them the right to search. Just say “I do not consent to this search”. If you exit a car, make sure to leave the door closed. An open door can imply consent. If police come to your house with an arrest warrant, step outside and lock the door. Police are allowed to search any room you go into, so it is best to quickly agree to be taken. If they have a search warrant, ask to read it and make sure it has all the necessary information.

Not all marijuana convictions require jail time under federal sentencing guidelines, but all are eligible for imprisonment. A minimum 85% of a sentence must be served. Using medical marijuana in school zones (unless in a residence) or with a firearm can result in a much more likely chance of imprisonment. Possession of over 1 kilogram results in a minimum of six months, and as the weight and amount of prior convictions increase, so does the sentence. Child custody issues may arise. In order to increase the chances of custody, keep marijuana out of plane sight, clearly label the marijuana as medicinal, do not medicate when children are present, and never drive with children when medicated. You cannot not drive when medicated. It is still considered a DUI. Since the use of medicinal marijuana is under California law, you must stay within the state borders for it to apply. If imprisoned, called a lawyer as soon as you can. Remember, all calls from jail are monitored, so be careful with what you say.

If you have any questions about a medical marijuana California card, contact us today for answers at 619.405.0063 or visit San Diego Medical Marijuana Defense 

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California Marijuana Medical Laws

Although the possession, sale, cultivation, or transportation of marijuana is illegal in the state of California, medical marijuana is not. A physician’s verbal or written recommendation can allow individuals to obtain a medical marijuana identification card, allowing them to purchase medical marijuana for medicinal purposes only. Businesses can also establish a medical marijuana dispensary under the guidelines of California Marijuana Medical Laws. These businesses are nonprofit and operate with state approved vendors. This article will give insight into the common concerns and questions regarding medical marijuana for personal and business use.

Often times people are confused with the contradiction of medicinal marijuana with California state law and federal law. The Controlled Substance Act (CSA) essentially declares recreational drug use illegal in America and is unlawful to manufacture, distribute, dispense, or posses any controlled substance. The CSA also deems marijuana as having “no currently accepted medical use”. The reason why medical marijuana is not punishable under the CSA is because California never legalized marijuana for medicinal purposes under California Marijuana Medical Laws. Rather, the state has used its lawful power to not punish certain crime offenses under state law when a physician has recommended its use to treat an eligible patient.

A California physician is not able to prescribe medical marijuana, but instead can issue a written recommendation for medical marijuana as a treatment for an illness. Illnesses can include cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness that a physician deems treatable with medicinal marijuana. The term “qualified patient” refers to someone who has received a physician’s recommendation for medicinal marijuana. Primary caregivers is someone who is designated by the patient to be responsible for housing, health, or safety. Eligible patients and primary caregivers should posses a medical marijuana identification card to avoid complications with police officers.

Patients and primary caregivers are recommended to apply for this card. It allows officers to quickly and confidently verify the legality of the possession of marijuana for medicinal purposes. Written proof of a physician’s recommendation should also be carried. If these items are not with the patient upon a police confrontation, police officers are instructed to use their best judgement in determining the legality of the situation and can use probable cause to search and seize marijuana, and arrest the possessor. A patient may posses up to 8 oz. (or more if it is otherwise noted by a physician) of medical marijuana, while primary caregivers can posses multiples of 8 oz. relative to how many people they care for. A patient can instead cultivate six mature marijuana plants or 12 immature marijuana plants. Use of medical marijuana must be 1000 feet away from a school, recreational center, or youth center unless it is within a residence. It cannot be used in jail or at work. Parolees and criminal defendants may request court approval for the use of medical marijuana.

Business must collectively or cooperatively run a medical marijuana dispensary. Essentially, it must be nonprofit. Records of individual transactions must be kept. Individuals who are not recommended by a physician are considered nonmembers and cannot be sold medical marijuana. Marijuana must come from regulated farms that are grown for the sole purpose of medical use, and cannot be purchased from nonmembers or private farms. Medical marijuana does qualify for state tax and a business must have a Seller’s Permit. In order to hire someone, an employee must make a written agreement to not distribute marijuana to nonmembers, maintain records, and enforce expired cards and recommendations. Any business that are for profit or act as a patient’s primary caregiver, and offer medical marijuana for cash “donations” are most likely unlawful.

If you have any questions about California Marijuana Medical Laws contact San Diego Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense

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Criminal DNA Testing

In the recent decades, criminal DNA testing has played a vital role in determining the verdicts for cases. Not only can DNA put a suspect at the crime scene, but also exclude a defendant from a scene. The variations in people’s DNA deems DNA evidence as statistically unique from person to person; therefore, DNA can be compared to different “DNA profiles” in various databases to see if the DNA found at a crime scene matches or does not match a key individual. In recent years, mathematics and key vocabulary involved with criminal DNA testing is better understood by a jury rather than having an ultimately confusing effect. Ways of extracting smaller amounts of usable criminal DNA testing in unconventional areas are continuously improving and are allowing attorneys to find DNA that was once not considered evidence or even possible to collect. Criminal DNA testing is currently a significant piece of evidence that is now widely used by attorneys.

One of the major advantages that criminal DNA testing posses is placing people definitively at a crime scene with a lack of any video evidence or witness accounts. Cases involving sexual assault usually have obvious samples of DNA, but unintentional samples of DNA (stray hair, cough or sneeze residue, skin tissue, etc.) can place people on a scene that were never considered as a suspect. This high probability of unknowingly shedding DNA on a crime scene can not only help create a definitive image of the scene, but also discredit the opposition.

If witness or police accounts put a defendant at the scene, but there is other DNA that puts someone else at the same place, then the accounts would not seem as convincing to a jury. Also, if a suspect claims to not be at a scene, and DNA evidence contradicts his statement, then a key opposing witness could potentially be discredited. The lack of DNA can be just as strong as a presence of DNA.

The power of criminal DNA testing is that it is practically irrefutable. Unless the suspect has an identical twin or was an expert in covering any trace of DNA, a jury would consider the DNA evidence higher then any testimony. Although DNA evidence may be concrete, it does mean it is unbreakable. To combat DNA evidence used against a defendant, an attorney, depending on the case, could argue that the defendant was there at a different time or had mild contact with the individual prosecuting. If an attorney had the right evidence to back up this claim, the criminal DNA testing could hold less weight to a jury.

Large DNA databases allow DNA evidence to be analyzed in a much larger scope. When no obvious suspect is to be found in order to compare collected DNA evidence, an attorney can compare the DNA with DNA used in other cases, collected by the government due to priors, or collected by government due to a military service. If the convenience of finding an instant match returns no results, an attorney would need to use other tactics to narrow the various suspects down. Placing another individual at the scene using DNA evidence would allow the represented defendant to fade away as the major suspect.

If you have any questions about criminal DNA testing in San Diego, contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit Criminal Defense San Diego

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DNA Evidence In Criminal Trials

DNA evidence in criminal trials is common in our San Diego courts. Here’s how it works.

Until the 1990s, the only sure-fire way to establish the identity of an individual was to examine his or her fingerprints. Because each individual’s fingerprints have a unique pattern, fingerprint evidence is readily admitted into court. Now, DNA is rapidly becoming the method of choice when it comes to linking individuals with crime scenes and criminal assaults.
The universally accepted theory underlying DNA analysis is that every person (except an identical twin) has certain elements of his or her DNA (deoxyribonucleic acid, which makes up chromosomes) that are unique.

Different methodologies allow experts to identify these distinguishing elements. The most common of these methodologies is “RFLP,” or the “Restriction Fragment Length Polymorphism Technique.” By comparing an individual’s known DNA with a sample of DNA from a crime scene (for example, in a droplet of blood or a strand of hair), an expert can give an opinion concerning the likelihood that both samples came from the same individual.

This sort of technology is extremely complex; few people are able to understand it. And yet the major crime labs and, increasingly, local police agencies, are becoming adept at comparing DNA samples left at the scene of a crime with DNA taken from a suspect — and concluding on that basis that the suspect is the culprit.

The conclusion that a DNA match proves the defendant’s guilt is based primarily on the assumption that the probability against one individual’s DNA matching another’s is in the hundreds of millions, or even billions, depending on who is crunching the numbers. However, as overwhelming as these figures may seem, it’s still possible to whittle them down to far less overwhelming odds if it can be shown that the methods used by the laboratories doing the testing were flawed in some manner. It is this approach, among others, that the defense team in the O.J. Simpson case used to mount its defense against what appeared to be overwhelming DNA evidence implicating O.J. Simpson as the guilty party.

DNA evidence is also proving to be a powerful tool in determining the innocence of prisoners who were tried before DNA testing in its current form was an option. If bodily samples, such as blood or semen, were collected from the crime scene or victim and that evidence is still available for DNA testing, a showing that the prisoner’s DNA doesn’t match the crime-scene DNA can be a powerful reason to conclude that the prisoner is innocent and should be released. A number of prisoners who were sentenced to death have been cleared through this technology.

DNA: Greater Accuracy
The use of DNA (deoxyribonucleic acid) as a method of identification is relatively new, but it has proven an effective means of identifying criminals and perhaps more important, eliminating people as crime suspects. A fingerprint is the only unique identification source (identical twins have the same DNA). But if a criminal leaves no prints behind, law enforcement officials must rely on minute DNA samples from blood, saliva and other bodily fluids, hair, or skin. DNA testing is also used in paternity disputes to determine the identity of the actual father in custody, inheritance, or child support suits.
DNA testing can be done by standard techniques such as restrictive fragment length polymorphisms (RFLP), polymerase chain reaction (PCR), short tandem repeat (STR), and mitochondrial analysis. In RFLP testing, a DNA sample is mixed with a chemical substance that helps examiners isolate and identify specific key fragments of the sample that can be used in comparison analysis. A drawback of RFLP is that it requires a fairly large DNA sample. With PCR, a series of chemical reactions helps generate copies of a minute DNA sample, thus amplifying a small or degraded piece of information. In STR, various DNA regions in a sample are compared with other samples for similarities. The FBI uses STR using special software that can identity thirteen of these regions in a DNA sample. Mitochondrial DNA analysis is often used for extracting samples from bones and teeth, for which the other methods are not effective.

The FBI keeps a computerized databank of DNA samples called CODIS (Combined DNA Index System), which contained about 1.7 million DNA profiles as of 2003. The profiles stored in CODIS can be used to convict criminals, and also to exonerate innocent people. There are numerous examples of criminals whose DNA matched a profile from an earlier crime and who were then charged with the crime; likewise, there are examples of individuals whose innocence was confirmed when DNA found at a crime scene turned out to belong to another person identified through the profiles.

DNA Evidence In Criminal Trials as an Exoneration Tool
Not only can DNA be used to convict criminals, it has successfully been used to exonerate individuals, some of whom were wrongly imprisoned for more than two decades.

Often, the person who is wrongly convicted of a serious crime such as murder or rape has a criminal record for petty crimes, which means a record already exists. These individuals are frequently convicted on eyewitness testimony, but without any physical evidence tying them to the crime.

If you have any questions about DNA Evidence In Criminal Trials contact San Diego Criminal Defense Attorney Vik Monder 619.405.0063 or visit San Diego Criminal Defense 

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