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May 14, 1957


The opinion of the court was delivered by: YOUNGDAHL

The defendant was indicted and tried on two counts, the first charging that on or about September 4, 1956, he had carnal knowledge of a female under sixteen years of age, the second charging that on that date he took immoral, improper and indecent liberties with that same minor female. On February 8, 1957, a jury acquitted him of the first of these charges but convicted him of the second. He has filed motions for a new trial and for judgment non obstante veredicto.

An important part of the prosecution's case consisted of the testimony of a police officer that scientific tests run on the defendant's penis revealed the presence of blood. *fn1" In his summation, the prosecutor stated, '* * * that test that showed blood on the penis of this defendant is the insurmountable bit of evidence that the defendant can't get around. He sure can't.' (Transcript of Record p. 266), and also, '* * * you can talk and you can talk from nor until next winter and you still can't explain away those tests that showed blood on this defendant's penis.' There were other references made during the summation and the opening statement to the same effect and a review of the entire record demonstrates that the testimony constituted a most significant part of the case against the defendant. *fn2" Under these circumstances, in view of the Court's belief that the evidence should have been excluded on the grounds of relevancy and that the obtaining and introduction of the evidence violated the constitutional rights of the defendant, the motion for a new trial will be granted. The motion for judgment non obstante veredicto will be denied.


 The facts relating to the evidence in question are as follows: In the late afternoon of September 4, 1956, the 13 year old complaining witness, accompanied by her mother, went to No. 13 precinct and accused the defendant of having had sexual relations with her that afternoon. Four hours later he was arrested and taken to the precinct station house where he remained for approximately one hour. A detective from the sex squad then took him to Police Headquarters. The detective testified that he noticed blood on the defendant's face on the way to Headquarters -- and saw him wipe it off with a handkerchief. The detective further testified that he asked him if he had fallen at the precinct and the defendant replied that he had not fallen but had been beaten by a police officer. The defendant repeated this accusation in his testimony and stated, in addition, that there was blood all over him as a result of the beating. No denial or explanation of the charge was made by the Government, and no officer from the precinct who was present while the defendant was there detained was produced in court.

 It is undisputed that upon arriving at police headquarters the defendant washed his hands at the detective's insistence, though there is conflicting testimony as to whether he touched his penis subsequently. There is also conflicting testimony as to whether he had urinated and thus touched his penis while at No. 13 precinct.

 From the washroom the defendant was taken upstairs to the laboratory. There he was informed that chemical tests would be run on his penis to determine the presence of blood. The detective, the defendant, and a sergeant who later administered the tests and testified as to the results, are in substantial agreement as to what then transpired. The defendant refused to take the tests and vigorously insisted upon his right to consult his attorney. *fn3" In fact, in the words of the sergeant who administered the test, the defendant made this request 'over and over again.' The detective's reply to the request was, 'Look, no sense you getting excited.' The defendant was not allowed to contact an attorney.

 In addition to protesting the administration of the test verbally, the defendant resisted physically, but the detective overcame this resistance by twisting the defendant's arm or arms behind his bank. *fn4" While the defendant was thus held and unable to resist further, the sergeant pulled his trousers down and swabbed his penis with four different patches of cotton, all chemically treated.

 At the trial the sergeant who qualified as an expert witness on the subject of blood tests, testified that in his opinion all four swabs indicated the presence of blood on the penis, but that the tests did not indicate from what part of the body the blood had come, whether the blood was animal or human, or even whether the presence of the blood on the penis was of recent origin. The sergeant stated that the answers to such questions can only be determined through the use of specialized equipment. He also said that he did not make any tests of the defendant's clothing, hands, or any other part of his body, because the detective had not requested any such tests.


 The Court has some doubt as to whether the challenged testimony was of any probative value. If it was, it was certainly weak, and whatever benefit may have been gained from its admission was more than counterbalanced by the prejudice which was created thereby. *fn5" In determining the admissibility of evidence of doubtful probative value, courts should not be unmindful of the eventual role the evidence is likely to play in the jury's considerations. Where the challenged evidence constitutes a significant part of the Government's proof, a higher standard of probative value than might be applied in other circumstances appears desirable.

 The weakness in probative value of the evidence here under discussion stems partly from the fact that despite their knowledge of the presence of blood on the defendant's face and handkerchief at the time the tests on his penis were made -- blood which the detective appeared to believe came from a 'fall' at the precinct -- the police failed to make any tests which might have established the source or nature of the blood on the defendant's penis and failed to determine whether there was blood on any other part of his body.

 Where there is also an unrefuted charge made by the defendant, both at the time of the taking of the tests and the time of trial, that the blood on his person was caused by a beating administered by police officers, this Court could not in good conscience allow its processes to be used for the securing of a conviction based on the presence of such blood. For if, as is not denied, the police assaulted the defendant, any evidence secured as a result thereof would be excludable. *fn6" So, too, where federal agents by unlawful acts create a situation in which doubt is raised as to the probative value of evidence, it is the Court's view that such evidence should be excluded. For the Court could not tolerate the jeopardizing of any defendant's rights to life and liberty because of the wilful disregard of law enforcement officers for the Constitution of the United States.

 Though the Court has thus far dealt only with the question of the reliability of the evidence, there is another basis, equally important, for excluding the challenged testimony. Since the Government may try the defendant again before this Court and since additional testimony may be introduced relative to the issues thus far discussed, the Court ...

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