Cold Hits

Cold-hit policies address the most appropriate laboratory, law enforcement and prosecution responses to the notification of a hit.The solving of a cold case is often a newsworthy event, which raises several important issues. If the proper agencies do not act expeditiously, the victims, survivors, witnesses and suspects will learn of the identification of the suspect from the news media.The consequences can be disastrous. Victims or witnesses may not know that they have a right not to speak to reporters, or they may not be able to communicate their refusal in a way that does not constitute a comment on the case.Witnesses’ remarks may be taken out of context, or their statements may come back to them in cross-examination by a defense attorney.Victims deserve personalized attention, with sensitivity to their possible trauma,¹⁷ and access to someone who can answer their questions. Properly preparing a victim for a likely media event can prevent these damaging outcomes.

Potential sources of leaks extend beyond the evaluating team.To the extent possible, the team should elicit the cooperation of magistrates who issue search warrants or arrest warrants.¹⁸ Correctional officers should be cautioned not to disclose information regarding a high-profile suspect so that police may continue their investigation.The consequences for premature, unauthorized leaks should be included in the policy. No single agency should be precluded from celebrating the identification of a criminal, but all should wait until the case has been prepared.

As part of the follow-up investigation after the notification of a hit, a confirmation DNA sample must be acquired from the identified suspect. There are three ways a confirmation sample may be obtained legally: through consent, search warrant or abandonment. Prosecutors may prefer one approach to another because there may be ramifications with a jury; therefore, the method to be used should be discussed beforehand. It is also beneficial for prosecutors to participate in drafting consent forms and search warrants, to avoid suppression issues. Finally, the method used to obtain the confirmation sample is often intertwined with whether damaging offender statements can be obtained.The following language from a cold hit protocol developed by Alameda County may be helpful:

A computer generated cold hit is meant to begin the investigation, rather than represent the end of the investigation.There are substantial legal considerations to be made about the case as a whole, some of which involve the form of legal admissibility of evidence derived from the cold hit.

Offenders’ statements are always an important piece of evidence; though not always apparent, they are often affirmative admissions. Furthermore, depending upon the crime committed, an offender’s statements may be crucial to overcoming an untrue defense, such as victim consent in sexual assault cases. For example, when an offender gives a statement denying having any contact with the victim, let alone raping her, DNA evidence connecting this offender to the victim can be quite powerful. Similarly, an offender statement describing the crime in a way that is inconsistent with the physical evidence (e.g., a defendant states that a struggle occurred at a specific location but all the blood—verified by DNA evidence—belonging to victim and offender is found at a different location altogether) can be devastating to the defense.
 
A consistent cold hit policy can maximize the power of DNA as forensic evidence. Investigators working under such a policy should know why they should obtain a sample consensually and how to obtain incriminating suspect statements in the process.They should be prepared to interview the suspect about all known allegations, since the very nature of DNA databanks promotes identification of repeat offenders.¹⁹ Furthermore, agencies that have developed cold hit policies may be able to prevent the media and/or corrections officers from informing the defendant that he has been “matched.” Finally, the use of proactive unsolved case policies, together with reactive cold hit policies, will bring justice for the sometimes-forgotten victims as well as the unprosecuted criminals.

Outlined below are shared and assigned responsibilities in cold hit cases.

Laboratory responsibilities:

• Promptly notifying the relevant law enforcement agency and prosecutor's office.
• Providing an inventory of what relevant evidence in the cold case is in the custody of the lab.

Prosecution responsibilities:

• Reviewing the viability of the case before law enforcement obtains a confirmation DNA sample from the subject.
• Assisting law enforcement with letters or orders controlling access or movement of the defendant prior to any interview.
• Assisting law enforcement in lawfully obtaining the confirmation DNA sample from the subject.
• Notifying the victim and witnesses.

Police responsibilities:

• Identifying other unsolved cases likely to have been committed by the offender.
• Confirming the availability of biological evidence in those cases.
• Locating the suspect identified by the hit.
• Obtaining a confirmation sample from the suspect.
• Interviewing the suspect.
• Completing the investigation.

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Content on this page has been excerpted from DNA Evidence Policy Considerations for the Prosecutor, published by the American Prosecutors Research Institute—the nonprofit research, training and technical assistance affiliate of the National District Attorneys' Association. This information is offered for educational purposes only and is not legal advice. This project was supported by Award No. 2002-DD-BX-0005, from the Bureau of Justice Assistance, U.S. Department of Justice.