Military rape and sexual assault cases are often won or lost based upon DNA evidence.  The forensic investigation, using advanced DNA testing technology, is one of the most important aspects of the government’s investigation and prosecution of sexual offense allegations made against a service member.  

In cases where the so-called victim cannot remember anything, DNA evidence may be the only evidence linking the accused military member to an Article 120 sexual assault crime. The same may be true for “he-said-she-said” cases. So it’s incredibly important to have a court martial lawyer that understands how to plan a winning strategy to combat DNA evidence.

Evidence that military law enforcement believe may contain DNA evidence that will help convict a service member—normally of rape or sexual assault—are sent to United States Army Criminal Laboratory (USACIL) for testing.

Once USACIL analyzes the evidence for the presence of DNA, it completes a DNA report that includes complex scientific jargon like the following:

• DNA profiles were detected using PCR (polymerase chain reaction) technology on twenty-one autosomal STR (short tandem repeat) loci, two Y-chromosome loci, (DYS391, Y-indel) and a gender identification locus from the Applied Biosystems GlobalFlier kit.

• The autosomal STR statistical calculations in this report were generated using STRmix software which calculates a fully continuous probabilistic likelihood ratio (LR).

The government will bring in a specially trained DNA expert to explain to the jury why this means the Army, Navy, Marine Corps, or Air Force service member is guilty of rape, sexual assault, or some other crime under the UCMJ.

But it’s not necessarily true. We would move to bring in our own independent defense expert in DNA to show why.

How Innocent Service Members Can be Framed by Their Own DNA

Touch DNA.  Because humans are constantly shedding skin, if you shake someone’s hand, turn a doorknob, or take off your pants, you leave skin cells (which contain your DNA) on the item you “touched,” thus the term “touch DNA.” 

Secondary Transfer DNA.  If your skin cells/DNA are on another person’s hand, a doorknob, a pair of pants, and so on, the cells/DNA can be transferred to the next thing that contacts the item. This process can go on and on until your skin cells/DNA winds up in Wyoming even though you’ve never been there.

This is how an innocent military member can be wrongly accused, investigated, charged, and then convicted of a rape, sexual assault, or other UCMJ offense even though he is completely innocent.

So even if you’re being told you should plead guilty because your DNA was found at the crime scene, on the girl’s underwear or body, or in her bed, don’t rush to plead guilty unless you have looked at every option that could lead to a not guilty verdict. 

Imagine you’re waiting at a bar for a friend. Your friend arrives, opens the door by the handle, and shakes your hand. You have now received a DNA transfer of not only your friend’s DNA, but also all of the DNA he picked up when he opened the door. You then use the bathroom and transfer your friend’s DNA and all the DNA from the door handle to your genitals. 

That’s how easy it can happen. Not only can your DNA be found where you never were, but someone else’s DNA can be found on you even though you never came into contact with them.  But this won’t stop the government from charging you with a crime and trying to ruin your military career and the rest of your life.   

A Winning Strategy – Cross Examining the Prosecution’s Expert

Below is an example of the type of cross examination to use with the government’s expert in an aggressive defense of your case:

Q: Are you familiar with DNA transfer?

A: Yes.

Q: Isn’t it true that DNA can transfer from a person to an object?

A: Yes.

Q: If a person bleeds onto a floor, his DNA  transfers to the floor, right?

A: Yes.

Q: This is called primary transfer?

A: Yes.

Q: If someone steps into the blood, you’d expect blood to transfer to the shoes?

A: Yes.

Q: That’s an example of secondary transfer, is that right?

A: Yes.

Q: If the person then walked across the room, blood on the shoes would transfer to the floor, correct?

A: Yes.

Q: That’s called tertiary transfer?

A: Yes.

Q: Because of DNA transfer, you can get blood into a room in which the bleeding person was never present, isn’t that true?  

A: Yes.

Q: This is true for other DNA sources as well, right?

A: Yes.

Q: For example, skin cells can transfer from my hands to my pen, right?

A: Yes.

Q: And if you then picked up my pen, some of my DNA could transfer onto your hands, correct? 

A: Yes.

Q: If you then opened your car door, you could leave my DNA on the door handle, right?

A: Yes.

Q: Semen can also transfer, right.

A: Yes.

Q: Vaginal fluid, saliva, sweat, urine, and other bodily fluids, can also transfer, correct?

A: Yes.

Q: And DNA transfer could have happened in this case, isn’t that true.

A: Yes.

Do you see how effective that is? This is just one example of a cross examination that an experienced court martial lawyer can use to create reasonable doubt in a jury’s mind and get a not guilty verdict for a military service member.

Unfortunately, many defense lawyers aren’t that good at preparing a good cross examination, especially newer ones with less than 10 years of experience. Worse yet, many will never get to cross examination because they are so quick to convince a service member to take a so called “great deal” to plead guilty.   

Liebenguth Law will fight for you every step of the way. And even if a plea deal becomes the best option for some reason, the deals we negotiate are almost always better than the one you would have received if you just rolled over and pled guilty right away without a fight.      

Weaknesses of DNA Evidence to Be Exploited

Government prosecutors, military commanders, the general public, and often the free military attorney believe that DNA is full proof—that is essentially puts a noose around a service member’s neck. You should disagree.

There are numerous limitations and weaknesses of DNA evidence that an aggressive, experienced, fight to the end court martial lawyer recognizes:

• The presence of DNA says nothing about consent.
• The presence of DNA says nothing about when it was left.
• The presence of DNA says nothing about how it got there.
• The presence of DNA says nothing about why it is present.
• The presence of DNA says nothing about who actually put it there.

In a consensual sexual encounter, for example, the presence of DNA doesn’t indicate whether the girl consented or not. With DNA transfer, the presence of DNA does not prove that the military accused was even present at the scene of the alleged crime or who else may have put it there. Nor does the presence of DNA indicate if it was “planted” by law enforcement or another third party.

“It Wasn’t Me and They Can’t Prove It Was”

In order for a service member to be convicted of rape, sexual assault, or any other UCMJ offense at court martial, the military prosecutors must prove the allegations beyond a reasonable doubt.  This is the highest standard under the law.

Even if there is damaging DNA evidence against a military accused, that doesn’t mean that the prosecution will be able to prove its case beyond a reasonable doubt at trial. This defense strategy usually works best when there is:

• No eyewitness.
• No other inculpatory evidence.
• No confession from the military accused.
• There is evidence of another perpetrator.
• An alibi or character evidence for the accused exists.

You want an experienced court martial lawyer that has a record of creating reasonable doubt in the minds of court martial juries. Liebenguth Law will investigate, prepare, and fight for you innocence at trial with one very important thing in mind: nothing is probably more important to you and your loved ones than being found not guilty and saving your military career and future.

Sexual Assault Court Martial Defense Practice Areas

• Rape and Sexual Assault Defense
• Rape and Sexual Assault of a Minor Defense
• Male-On-Male Sexual Assault
• Female-On-Female Sexual Assault
• Child Pornography Defense
• Sting Operation Defense
• Sexual Offender Registration (SORNA)
• SHARP/SAPR Defense