Whether the Commonwealth may indict a person identified only by their DNA profile, and then amend the indictment after the statute of limitations has run when a person with a matching DNA profile is found.

In 1991, two separate rapes were committed by an unknown person; the same DNA was recovered in both cases. Fourteen years and 360 days after the first incident, having still failed to find a person with a matching DNA profile, the Commonwealth secured an indictment against “JOHN DOE, a black male, approximately 16-18 years of age, 6‘0” and 160-170 lbs, as of July 13, 1991, and further described by the DNA profile appended to the indictments as Appendix A.”

Several years later, the Commonwealth matched the DNA sample to the defendant, amended the indictment to include his name, and began prosecution. The judge reported a question to the Appeals Court, asking whether the prosecution was barred by the statute of limitations. The SJC transferred the question sua sponte to its own court.

Chapter 277, § 19, provides that “[i]f the name of an accused person is unknown to the grand jury, he may be described by a fictitious name … but if at any subsequent stage of the proceedings his true name is discovered, it shall be entered on the record and may be used in the subsequent proceedings.” Chapter 277, § 63, provides that “[a]n indictment for [rape] may be found and filed within 15 years of the date of commission of such offense.” The question is whether the Commonwealth may prosecute the defendant consistent with those statutes.

The defendant argues that statutes of limitation are grounded in fundamental fairness, constituting a legislative judgment of the limit “beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.” United States v. Marion, 404 U.S. 307, 322 (1971). The fictitious name statute was merely intended to reform the rule that defendants could escape indictments where there was an error in their name, and was not intended to permit indictments that indefinitely extend the statute of limitations.

The Commonwealth argues that an indictment is sufficient if it “contain[s] words of description which have particular reference to the person whom the Commonwealth seeks to convict.” Connor v. Commonwealth, 363 Mass. 572, 576 (1973). This indictment described the defendant with exacting specificity (his DNA profile), and is therefore sufficient; there is no requirement that a defendant know of an indictment or have reason to know it refers to him in order to be valid.

The Commonwealth has the better of the argument under the letter of the law; an indictment is valid if it describes the defendant with particularity, and the statute of limitations requires no more than a valid indictment. However, the defendant’s request for a liberal reading is persuasive. To take an extreme hypothetical, under the Commonwealth’s rule it would be able to indict a defendant on the day of the crime, using only a DNA sample and vague description; wait 40 years to discover someone whose DNA pattern matches the sample; and then prosecute, all consistent with a 15 year statute of limitations. (Notably, a proposed statute that would have waived the statute of limitations for rape where there was a DNA sample did not pass.)

If it chooses to side with the defendant, the Court will have to find that an indictment is valid for purposes of the statute of limitations only if it refers to an actual known person (under whatever name or description is available), rather than to evidence from which a suspect can be discovered. It is not clear whether the Court will have to go further, and say that indictments on the second basis are entirely invalid.

(There is an interesting distinction here between an unknown person and a known person with an unknown name. For example, the Commonwealth analogizes to the Clark Rockefeller case, arguing that a valid indictment could be obtained against “Clark Rockefeller” or “Christian Gerhartsreiter.” However, in either case the indictment would refer to a particular person known to the Commonwealth. In this case, the Commonwealth’s indictment merely referred to a test by which it could determine whether any given person was its suspect; it had done little to narrow down which of 6 billion persons that might be. In this way, indicting a DNA profile may be no different than indicting a security video, or a shoe print, or any other evidence by which the Commonwealth believes it can obtain a conviction once it finds a matching suspect.

The interesting part is that all identities are, to some extent, unknown — what evidence is there, other than circumstantial, that your spouse when you fall asleep is the same person when you awake?)

The Court’s practice is to refer to “DNA” as “deoxyribonucleic acid” when it first appears in each case. Spelling out DNA gives the opinions an archaic air — what reader gains understanding by having that acronym explained? — but the real purpose is forward-looking. The Court’s opinions are intended to endure even in some unimaginable future when “DNA” is not commonly understood. The practice is a good reminder of the long shadow cast by our day-to-day advocacy.