January 13, 2009
No Prosecutorial Misconduct
The Wyoming Supreme Court affirmed a conviction for second degree murder, concluding that the prosecutor did not engage in misconduct by commenting on the defendant's refusal to voluntarily submit to DNA testing:
...the investigators asked Mr. Smith to voluntarily give a DNA sample; after he refused, they obtained a warrant to obtain the sample. The DNA sample and the associated test results were not testimonial or communicative evidence and the State could compel him to provide the sample. By giving him the choice of providing a sample or refusing, the State did not coerce him and the evidence of his refusal did not fall within the Fifth Amendment protection. We conclude, therefore, the prosecutor did not violate Mr. Smith’s privilege against self-incrimination or commit prosecutorial misconduct by eliciting testimony about, or commenting upon, his refusal to voluntarily provide a sample for DNA testing.
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