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Eight years ago, Jeri Elster, a legal secretary in Los Angeles, woke up at 1 A.M. to find a stranger standing over her bed and pinning her arms and legs to the mattress. After tying her hands with a pair of her pantyhose, the man raped her for 2 1/2 hours.
For several years, Elster worked with police to find her assailant. She had a "rape kit" made at the hospital that would preserve the semen the rapist left behind. She worked with a sketch artist and had her house dusted for fingerprints.
Finally, in late 1999, authorities found a match for the DNA taken from the rape kit in the state's database of DNA taken from convicted California felons. The DNA came from a man imprisoned since 1992 for an unrelated crime.
Elster picked the man out of a lineup. But a prosecutor then told her something she never expected to hear-that the suspect never would be tried for her rape. Police found the man two years after the state's statute of limitations had passed, and it was too late for them to press charges.1
INTRODUCTION
Recently, prosecutors have begun to employ an innovative technique to avoid the problem presented by the above scenario. By bringing charges against "John Doe," whose DNA profile matches that of the rapist, district attorneys in several states are tolling the statute of limitations and keeping rape cases alive.2
Wisconsin and California were the first states to arrest suspects on the basis of a DNA-based indictment or warrant.3 This Note will address the legal and practical concerns presented by the use of such DNA warrants and related indictments. In September of 1999, a district attorney in Wisconsin became one of the first prosecutors to obtain a warrant and file criminal charges against a man identified in the warrant solely by his DNA profile.4 This innovative warrant, commonly called a DNA warrant, was obtained in the hope of tolling the state statute of limitations on a rape case.5 Since then, Wisconsin prosecutors have charged five individuals in rape cases using this technique.6 In New Mexico, prosecutors indicted a John Doe for raping nine women over seven years. In both Wisconsin and New Mexico, the suspect's name is not required...