Last fall, I attended a continuing legal education conference focused on sex crime defense and an outstanding speaker—who discussed the emerging field of forensic genetic genealogy—mentioned The Genetic Detective, a six-episode reality TV series that aired on ABC in 2020. The reference came from a credible source, so I figured it was worth viewing.

‘The Hot Case’

CeCe Moore, a genetic genealogist who originally worked more toward helping people discover their biological identities and lineage, utilizes The Genetic Detective to recount various situations in which she assisted law enforcement in solving cold cases.

Not knowing where to start, I visited the show’s IMDb page and discovered that “The Hot Case” (the last episode in the series) was the most applicable to my trial work. I was able to view it for free at ABC.com.

The episode focused on a 79-year-old woman from St. George, Utah, who was raped in her home as she slept. Law enforcement was alerted to the attack and immediately conducted a crime scene investigation. They located a large portion of genetic material, namely seminal fluid, that they attributed to the assailant.

The material was collected and submitted to the Combined DNA Index System, a database known as CODIS, which is used by law enforcement to compare unknown DNA profiles to known profiles collected from offenders and missing persons. But the submission didn’t return a result, so a St. George police detective reached out to Moore in hopes that her methods could help.

Moore employs a database of genetic material submitted by individuals who want to discover their genealogy. As the episode plays out, we learn about a divide between those who feel using these family tree-type databases for law enforcement purposes is an assault on privacy rights and those who favor the trade-off of solving cold cases.

The rape was Moore’s first open case. I don’t want to give away too much because the episode, and likely the series as a whole, is worth watching.

Interestingly, “The Hot Case,” takes a meta approach to the science by also incorporating the then-ongoing William Earl Talbott II litigation. Tabbott was charged in 2018 with the 1987 murders in California of Canadian teenagers Jay Cook and Tanya van Cuyklenborg. Moore had aided law enforcement in apprehending Tabbott, and the episode is able to show how the trial played out in real time.

Which is important to Moore and the system as a whole: This was the first time genetic genealogy had been used at trial. The method was allowed as admissible and helped secure a double-murder conviction. In 2024, the Washington Court of Appeals affirmed Talbott’s judgement and sentence, with a directive that the trial court strike a firearm enhancement. The state supreme court denied review the same year.

DNA evidence in a criminal prosecution

Moore works backward with the relevant and available DNA profiles, and her discussion and demonstration of how she does so is remarkable. But I’ve yet to see genetic genealogy used firsthand in a criminal case.

I wouldn’t be surprised if it comes up, though, as prosecutors will try to employ genetic evidence any chance they have. After all, the only thing better than DNA evidence for a prosecutor is a confession. Actually, some might argue that DNA evidence is still the preferred ammunition. Science is objective.

More importantly, the general public swallows it hook, line and sinker. DNA is a complicated subject, and most receive only limited information through media saturation.

Consequently, those litigants willing to put in the time and effort to further educate themselves will be ahead in the ball game. I know that sounds self-evident, but the uninitiated would be surprised to learn how many players in the legal arena lack more than a basic understanding of a topic that sometimes determines life and death.

And that is scary because when the science is really examined, in my experience, it becomes clear that most situations involving DNA are far from the clear-cut conclusions they initially appear to be.

Turning an obstacle into an advantage

You win your cases at your desk, not inside the courtroom. Many times, if you know the subject better than your adversary, the conclusion isn’t the crux; it’s the delivery that matters most.

Think about it: Suppose you’re defending someone charged with a shooting. In that case, you need to educate yourself on the qualities of gunshot residue, blood splatter evidence, different calibers of firearms, rifling and impressions, among other things. If it’s an arson allegation, you have to be up to snuff on burn patterns, accelerants and smoke and flame colors. Even when it comes to something like a simple DUI, you need to understand the ins and outs of standardized field sobriety tests, gas chromatography, chemical tests, and drug and alcohol metabolization.

The same goes for cases that involve DNA. In order to speak intelligently with an expert on the subject, you have to educate yourself. It’s necessary to read relevant literature to establish a firm grasp on the subject’s essential aspects and stay abreast of developments in the field.

Maybe even more important than speaking with an expert on cross-examination, though, is speaking with a potential jury during voir dire. To the degree allowed by the court, you want to educate the prospective fact-finders. The only way to make that process smooth is to know the material well enough to boil it down to terms and analogies that will resonate.

After all, did you know you can deposit your DNA through secondary and even tertiary transfer? Moreover, there’s literature that discusses quaternary transfer, which is a DNA transfer from one person to another whom they never even touched. For instance, let’s say someone touches a doorknob. Someone else then touches that same doorknob and then touches their car door. A third person later touches that same car door. That third person has now potentially acquired the first person’s DNA, even though they never had contact with them.

Also, were you aware that we can deposit our DNA through aerosol transfer simply by speaking? Most people, and plenty of attorneys, have no idea about these mechanisms.

And that’s just the tip of the iceberg. The existence of DNA merely shows that genetic material is present. Every other circumstance is still subject to multiple facts, considerations, circumstances and interpretations. Those interpretations can lead to innocent explanations if you understand the science.

Adam R. Banner is the founder and lead attorney of the Oklahoma Legal Group, a criminal defense law firm in Oklahoma City. His practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes and white-collar crimes.

The study of law isn’t for everyone, yet its practice and procedure seem to permeate pop culture at an increasing rate. This column is about the intersection of law and pop culture in an attempt to separate the real from the ridiculous.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

Massive firings by Donald Trump’s administration have purged several federal agencies of thousands of career civil servants, but none more dramatically than in the U.S. Department of Justice.

At least a dozen United States Attorneys have been removed, and hundreds of lawyers and investigators who worked on the Jan. 6 and the Trump indictments face potential firing as well. And there is then the resignation of seven prosecutors who refused the Justice Department order to dismiss criminal charges against New York City Mayor Eric Adams — leading, now, to a temporary delay in a case that is ultimately likely to result in a dismissal given the Justice Department’s unwillingness to prosecute it.

But apart from the removal of experienced and professional attorneys is what appears to be a radical transformation of the Department’s longtime guiding ethos. To many observers, the Justice Department has become under Trump’s regime a terrifying weapon to accuse and prosecute Trump’s enemies and protect his friends. To these observers, “Justice” now means “Trump justice,” not the way justice is defined in the Justice Department’s manual as dependent on the rule of law, an evenhanded approach to the administration of justice, and the requirement that legal judgments be made impartially and insulated from political influence.

So, the big question for defense lawyers is whether — and to what extent — prosecuting federal criminal cases may be different.

For as long as we can remember, most criminal defense lawyers believed they were dealing with fair-minded and nonpolitical federal prosecutors. Lawyers strategized to try to persuade prosecutors that the potential charges were weak on the merits; that the government could not sustain its burden of proof; that a key witness wouldn’t hold up; that the trial jury would be unimpressed with the evidence; that the jury wouldn’t be “outraged” by what would be presented to it; that there was some sympathetic fact about the defendant that might encourage the jury to acquit; or that there was some “nullifying” fact about the case or the victim’s motivations that would undermine the prosecution’s theory.

The federal government has agreed not to share a recently compiled list identifying the FBI agents and analysts who worked on investigations into the Jan. 6 attack on the Capitol.

The agreement was reached Friday morning, just before the DOJ was scheduled to appear in court and defend against a federal lawsuit filed anonymously earlier this week by a group of agents who feared the information would be used by President Donald Trump as part of his promise to “exact revenge” on those who investigated him.

Following a protracted hearing on the matter Thursday, the two sides came to an understanding regarding a consent agreement that requires the federal government to provide the plaintiffs with at least two days notice before they can share the list with the public.

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Americans’ confidence in courts hits all-time low; did Trump cases have bipartisan impact?

By Debra Cassens Weiss

December 18, 2024, 10:25 am CST

Americans’ confidence in the courts hit an all-time low of 35% in 2024, a decrease of 24 percentage points in four years, according to a Gallup poll released Tuesday.

Confidence declined among those who disapproved of President Joe Biden’s leadership, as well as among those who approved, according to an online Gallup summary. The poll did not ask about political party.

The Associated Press covered the findings.

“The results come after a tumultuous period that included the overturning of the nationwide right to abortion, the indictment of former President Donald Trump and the subsequent withdrawal of federal charges, and his attacks on the integrity of the judicial system,” the article says.

The only indictment that led to a conviction had alleged that Trump falsified business records to pay hush money to adult film actress Stormy Daniels in a bid to bolster his election in 2016.

Confidence in courts among those disapproving of Biden’s leadership declined from 46% in 2021 to 29% in 2024. Among those who approved of Biden’s leadership, confidence remained steady at 62% between 2021 and 2023, before decreasing to 44% this year.

The legal cases against Trump likely affected the confidence of both sets of respondents, Gallup said. Those who dislike Biden may have been dissatisfied with the cases against Trump. Those who like Biden many have been dissatisfied with court decisions favoring Trump.

Only nine nations had greater decreases in confidence in the courts over the same four-year period, the New York Times points out. They were Myanmar, Venezuela, Croatia, South Africa, Syria, Hong Kong, Morocco, the Democratic Republic of the Congo and Uzbekistan.

Lydia Saad, the director of U.S. social research at Gallup, told the New York Times that the results represent “a striking decline” in the global context.

“These drops are typically associated with pretty significant political upheavals,” Saad said.

A separate Gallup poll asked about Americans’ trust in the federal judicial branch headed by the U.S. Supreme Court. Forty-eight percent said they had a great deal or a fair amount of confidence, according to findings released in October.

But political party made a difference. Among Republicans, 71% had a great deal or a fair amount of trust in the federal judicial branch headed by the Supreme Court. Among Democrats, only 24% had such confidence.

Gallup also asked whether respondents approved or disapproved of the job being done by the Supreme Court. Overall, 44% of Americans approved of the Supreme Court. Seventy-two percent of Republicans approved, while 15% of Democrats approved.

The Supreme Court ruled in July in Trump v. United States that presidents have absolute immunity when exercising core constitutional powers and at least presumptive immunity for acts “within the outer perimeter” of their official responsibilities.

The Supreme Court’s decision holding that there is no constitutional right to abortion, Dobbs v. Jackson Women’s Health Organization, was released in June 2022. The next month, Democratic approval of the court decreased to 13%.

“When we ask Republicans about the Supreme Court, they’re still very positive,” Saad told the New York Times. “When you don’t pin them down on the Supreme Court and talk about the courts, they’re saying the courts are misbehaving and engaging in quote-unquote lawfare.”