Saliva Case Decided

The Washington Supreme Court upheld the use of evidence obtained by the police in a controversial ruse. Investigating a cold case, the police focused on a suspect in another state. To get a sample of his DNA, they sent him a letter purporting to be from a law firm representing plaintiffs in a class action. He replied, sealing the envelope with his saliva, and sealing his fate with his DNA. Yesterday the Court upheld his conviction under the state and federal constitutions. State v. Athan, No. 75312-1, Washington Courts website links: majority (C. Johnson, J.), concurrence (Alexander, C.J.), dissent (Chambers, J.)(joined by Sanders), dissent (Fairhurst, J.).

One difference between the majority and the dissents was how they characterized the privacy interest -- is it in one's identity? The majority said DNA reveals identity the way a thumbprint does; the dissent said it's different, deeper. Another difference was how the justices viewed the ruse used -- does it interfere with the attorney-client relationship? The majority said that licking an envelope is not an attorney-client communication. Justice Chambers was concerned that the police got the evidence by posing as attorneys. This was the issue on which WSBA filed an amicus brief -- see earlier posts. (Justice Chambers was the president of WSBA, by the way, so perhaps he has a special sensitivity to the role of lawyers.)

See Natalie Singer, Court upholds murder conviction based on DNA from envelope, Seattle Times, May 10, 2007.