As cities across the country are shutting down due to the coronavirus COVID-19, some law enforcement agencies in Northern California are allowing victims of alleged sexual assault to collect their own evidence at the direction of a telehealth specialist.
That practice has started in Marin County north of San Francisco and elsewhere after California’s Governor Gavin Newsom issued a statewide stay-at-home protective order in March.
The measure was put in place to help ease the spread of COVID-19 by allowing victims to collect their own evidence under the guidance of a qualified nurse who offer direction via a video call. Normally, collection of the evidence would be performed by medical officials themselves.
A county prosecutor said the move is meant to encourage those who were victimized to contact law enforcement and collect evidence necessary for an investigation while easing concerns of any possible COVID-19 infection. But criminal defense experts say any evidence collected this way would be challenged in court on the basis of cross-contamination and other issues, which could raise reasonable doubt in a criminal case.
Speaking to the Associated Press, Sacramento criminal defense attorney Mark Reichel said the practice was “absolutely fraught with danger because when you have a dispassionate law enforcement officer collecting evidence and replace that with the victim who then manufactures the most critical evidence, that’s going to cause reasonable doubt.”
Hypothetically, someone could collect the DNA of an innocent individual and then frame them for sexual assault if a person were allowed to collect their own evidence, Mark said. A criminal defense attorney would raise a chain-of-custody issue among others in court.
A county official who spoke with the Associated Press downplayed the concern, saying there were enough protocols in place to ensure that wouldn’t happen, though it wasn’t clear from the article what those protocols were.
In Monterey County, at least two victims have collected their own evidence in alleged sexual assault cases, a county prosecutor said.
Since March, law enforcement officials have modified many aspects of their operation in response to the threat of COVID-19. In Sacramento County, dozens of non-violent inmates with less than a month on their sentences were released by order of the Sheriff in an effort to curb the spread of the virus.
At the same time, court dates have been delayed for dozens of defendants, including those brought on fresh charges. Some are being denied their constitutional right to be arranged in front of a judge in a timely manner, something Mark said could lead to a number of challenges once the courts are back in session.