One of the most confusing areas of criminal law is the area of murder versus manslaughter. Both murder and manslaughter involve the Defendant willfully killing another person. Notably, self defense is a defense to murder and manslaughter.

First degree murder is the classic fact scenario where the Defendant plans to kill someone and executes on that plan. It can be a plan that took years to go into effect or one that only took five minutes. If a mobster sees another mobster speaking to police and assumes he is cooperating with them and kills him on the spot that is first degree murder. He planned to kill the individual and followed through with the plan to the point of killing.

Second degree murder is when the Defendant kills someone without planning it out. For example, two neighbor’s have a dispute. They decide to discuss it. In the middle of the discussion one person gets angry and shoots the other. This would probably be considered second degree murder, because although he killed the person the Defendant did not go into the meeting planning to do so.

Manslaughter is trickier still and presents a difficult analysis for the jurors. In order to be found guilty of manslaughter and not murder, there must be evidence which shows that there was some sudden event which caused the Defendant to lose his normal reasoning and kill the person. The classic law school example is the man who comes home to find his wife in bed with this best friend and he kills his best friend or his wife or both. In that situation the “heat of passion” caused the individual to lose his reasoning and kill the person. The law requires that there be evidence that: (1) there was a sudden quarrel or the killing occurred in the heat of passion; (2) there was no planning or a reckless disregard for human life amounting to malice; (3) the Defendant acted rashly and under the influence of intense emotion that obscured his reasoning and judgment; (4) the provocation would have caused a person of average disposition to act rashly and without due deliberation.

Notably, the California Supreme Court recently held in People v. Beltran (2013 DJDAR 7016) that the test is not whether a reasonable person would have killed but whether it reasonable for the Defendant to have killed under that condition or provocation. As you can see, deciding whether the Defendant committed manslaughter versus murder is not an easy decision for the jurors. Yet few would disagree that a lesser crime then murder should be available to Defendants acting out of extreme provocation instead of those planning to kill or those acting knowing that their actions could likely result in death.

The US Supreme Court held that taking DNA from those arrested for “serious” offenses is constitutional and is in the same vein as taking fingerprints and photos of arrestees. In Maryland v. King, the Defendant was arrested on a felony and a DNA swab of his mouth revealed he was the previously unknown assailant in a rape case 6 years earlier. He was eventually convicted of the rape charge. That Defendant challenged the constitutionality of his DNA being taken from him without consent pursuant to the 4th Amendment of the Constitution.

The Court held that the DNA swab was not a violation of the 4th Amendment because it was not intrusive as a cotton Q-tip was used to gather saliva from inside the cheek of the arrestee. Also, the DNA was used for the legitimate Government interest of identifying the arrestee so he could be properly housed in the jail based on his threat level which could be ascertained most accurately from DNA revealing his criminal past. The Court held that this legitimate Government interest outweighed the privacy rights of the individual. The Supreme Court limited collection of DNA samples to those arrested for “serious” offenses. The California DNA Collection Act limits collection to those arrested for felonies which seems to be in keeping with the Supreme Court decision.

Notably, the Supreme Court requires the destruction of DNA evidence if the person is not convicted of the offense and DNA evidence may not be entered into a national database unless a conviction occurs.

California courts require that the Defendant give DNA as part of a felony conviction and in Orange County many negotiated dispositions on misdemeanor cases result in the Defendant giving his DNA to the local Orange County DNA data base which may be searched by law enforcement agencies in the state and across the country.

Criminal Law Updates by the Law Offices of Orange County Defense Lawyer William W. Bruzzo (714) 547-4636

Related Articles

• Supreme Court Says Police Can Take DNA Swabs From Arrestees (baltimore.cbslocal.com)
• Police can take DNA swabs from arrestees (kvue.com)

The Orange County District Attorney has been resolving criminal cases by having the Defendant give their DNA in exchange for dismissals of usually minor cases.

This program in Orange County has only been in effect for the last couple of years and had generally been very beneficial to Orange County Defendants facing minor criminal charges such as ‘hit and run’ and ‘petty theft’ in that they can get the case dismissed by offering to give their DNA.

DNA of course refers to Deoxyribonucleicacid which is a macromolecule that exists in every living thing. Because DNA is unique to each person it is used by law enforcement as a means of identifying individuals who may be involved in a crime. If police find a strand of hair, drop of blood or other bodily substance at a crime scene they can test the substance against DNA samples in nationwide data bases. If the person who left the DNA at the crime scene is in the data base then the police will have a ‘hit’ and can investigate that person as someone of interest. Law enforcement can use the presence of DNA to put a particular person at a particular place or in the case of sexual assault cases, the DNA present in semen or other bodily fluids can be used to determine who committed the crime.

DNA has proven to be a very useful tool for law enforcement, as such Tony Rackauckas the Orange County District Attorney, implemented the DNA for dismissal program as a way to build up a local Orange County DNA base which will interface with national data bases.

Some people are hesitant to give their DNA for fear of being mistakenly accused of a crime by some glitch in the system. However, experts say that DNA is like a fingerprint only much more reliable in its uniqueness to each individual. In addition, it is rare that an individual is charged or convicted with DNA alone; usually other evidence is produced to show the likelihood of the individual being present at the scene in addition to the DNA.

DNA has most famously been used to exclude people from having committed crimes. The media reports numerous instances where individuals who were convicted of crimes and already served long sentences are suddenly freed because DNA testing showed that someone else was the culprit. For example, evidence from rape cases that occurred before DNA testing was available can be subject to DNA testing if the court allows the matter to be reopened. Many individuals have been freed because of DNA testing done after the person was sentenced and convicted.

Everyone should be advised however, that once their DNA is in the data base and they subsequently commit a crime their chances of being discovered are much greater.

Police still do not have any suspects or new information surrounding the disappearance of 81 year old Robert Merle Harrod of Placentia in Orange County, California. He was last seen by his son in law on July 27, 2009. Harrod left his glasses and car at his house. Jeff Michael, Harrod’s son-in-law, had been doing work around the house and left to go to Home Depot. When he returned Harrod was gone and the house was locked with the housekeeper waiting to have someone let her in. They went inside and nothing seemed out of the ordinary. Both left the home after each finished their tasks. After Harrod’s daughters could not locate him by telephone they called Fontelle Harrod, their dad’s new wife who was getting ready to leave Missouri to join him in Orange County. They had been married on June 29, 2009 and she was flying in on July 29. Mrs. Harrod called in a missing person’s report and police have been investigating ever since. According to Harrod’s doctor his patient did not suffer from dementia, police say that even if he did, someone would have recognized him from media reports. There was no sign of forced entry to the house and there has been no activity reported for any of Mr. Harrod’s financial accounts. Police have looked into his new wife and his daughters as being suspects but there is no evidence that they were involved in kidnapping or killing Harrod. His wife Fontelle would have gained financially from Harrod’s disappearance but she had not been added to any of his accounts yet. It is an ongoing investigation and police are treating it as a homicide as Police Chief Jim Anderson explains ‘because you can’t go back in time and retrieve evidence.”