French police are facing a bit of challenge in determining who to arrest in a series of rapes in Marseille. They have the DNA and eye-witness testimony to identify the rapist. However, when they move in to arrest the man they found two men — identical twins. Standard DNA analysis could not distinguish between the 24-year-old men and the witnesses, including a 76-year-old woman, could not determine which was the actual culprit between Yohan and Elwin.
The twins are unemployed deliverymen and police are trying to arrest one of them for six rapes of women between the ages of 22 and 76. Obviously, the twins know which is responsible but are not saying. Of course, they both could be rapists but the police still need to know which rapist to charge against which twin if that where the case. Such a determination requires an expensive DNA testing that will cost $1 million for the cash-strapped city.
We have previously see evil twin cases. This could make for an interesting criminal case if the defense challenges the slight difference in DNA coding between the twins with each suggesting that the other is the rapist in a mutually beneficial defense.
Source: Telegraph
Maybe they took turns raping these women.
Didn’t have to be just one of them.
That’s why they aren’t saying.
They are both guilty of concealing evidence of a crime. The guilty one is concealing his own actions and the other is concealing his brother’s criminal activity.
I agree with Bud, I wouldn’t be surprised if the two of them had at least one victim. I don’t think given the closeness of most twins one would rat out the other. But then again I have dealt with people that would sell out their own mother to get out of a minor crime so who knows.
Egytian law should apply:
shoot them both and let Allah sort it out.
if they both did it justice is served if only one did it, he would admit to protect his brother. Or at least that is the way it worked for Solomon.
My previous comment won’t work if they accuse each other.
Calling Sherlock
You have multiple rape cases, so proceed anyway. Charge one of them with one of the rapes, if you do not get a conviction or he can alibi out, charge the other one. The question is whether one will go to prison for the crime of the other. If Yohan alibis Elwin under oath, Yohan commits perjury: One of them committed the rape, so Yohan is lying on the stand about his whereabouts; either he was committing the rape, or Elwin was and not where Yohan says he was. Vice versa, of course.
If the twin on trial can prove an alibi for the first rape, charge and try the other twin, because then we know he committed the rape.
If the first case is not resolved satisfactorily, try again with the next rape. It is not double jeopardy to try each crime as a separate case. (I don’t know if double jeopardy is even an issue in France, of course.)
Raise the million for the expensive DNA testing. In the meantime, raise the stakes by threatening to prosecute the non rapist brother (if any) on whatever crimes obstruction/concealment may be appropriate in that juristiction. Apply the pressure that both will end up in jail eventually unless answers are coming now.
Is there any fingerprint evidence is the question.
@Tony C.: “… Charge one of them with one of the rapes, if you do not get a conviction or he can alibi out, charge the other one. …”
How would that work? I don’t don’t think that French prosecutors can just nilly-willy open trial against somebody, there must be evidence that that specific person has committed that specific crime.
“… If the twin on trial can prove an alibi for the first rape, charge and try the other twin, because then we know he committed the rape. …”
The prosecutor must prove the guilt of the accused, not the accused his innocence.
Both could stay completely silent (right not to give self-incriminating evidence and testimonial privilege due to relationship), no need to provide an alibi (without further physical evidence, which is hopefully coming, that is).
@Philip S. Zivnuska: “… In the meantime, raise the stakes by threatening to prosecute the non rapist brother (if any) on whatever crimes obstruction/concealment may be appropriate in that juristiction. …”
Testimonial privilege due to relationship.
“Testimonial privilege due to relationship.” Can you provide more information about this?
Berliner,
I second BK’s request. I am unaware of any jurisdiction where siblings are afforded testimonial privilege.
@ bettykath & Gene H.: I know almost nothing about French criminal law, I just extrapolated from German law:
(source: http://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo.html#p0191)(my emphasis)
Code of Criminal Procedure – Section 52
[Right to Refuse Testimony on Personal Grounds]
(1) The following persons may refuse to testify:
1. the fiancé(e) of the accused or the person to whom the accused has made a promise to enter into a civil partnership;
2. the spouse of the accused, even if the marriage no longer exists;
2a. the civil partner of the accused, even if the civil partnership no longer exists;
3. a person who is or was lineally related or related by marriage, collaterally related to the third degree or related by marriage to the second degree to the accused.
This is a mess… Nal, while I agree in principle… Your thoughts may not be far from where we are at in reality…. Not far from the truth…
The potential for this type of situation is higher and wider than one might think at first blush.
It presents challenges to absolutists:
(Absolutism: Pabulum For The Insecure?). There are a lot of natural curve balls out there for absolutists to ponder.
@ bettykath & Gene H.: And the French version (again my emphasis)
source: http://www.legifrance.gouv.fr/content/download/1958/13719/version/3/file/Code_34.pdf
Code de procédure pénale – Article 335
The following people may not give evidence under oath:
1° the father, mother or any other relative of the accused, or of one of the other accused persons present at and
subjected to the same hearing;
2° the son, daughter or any other descendant;
3° the accused’s brothers and sisters;
4° relations by marriage with the same degree of kinship;
5° the husband or wife; this prohibition endures even after a divorce;
6° the civil party;
7° children under the age of sixteen.
Similar problems have arisen in cases of chimeras. One of the most famous cases was that of Lydia Fairchild in 2002.
http://en.wikipedia.org/wiki/Lydia_Fairchild
Berliner: I don’t don’t think that French prosecutors can just nilly-willy open trial against somebody, there must be evidence that that specific person has committed that specific crime.
There is evidence, the DNA evidence is a match. In the USA, at least, whether evidence is enough to convict is determined at TRIAL, not a priori. Evidence does not have to be conclusive in order to go to trial. Contrary to popular belief, killers can be convicted without any conclusive evidence or smoking gun, even if they claim to have alibis.
Delay the trial until the price of the DNA testing drops from a million dollars to a hundred thousand dollars. It should take a couple of years at most.
Wait… How is it that it costs a million dollars in 2013 if it was done in 2004?
http://indianalawblog.com/archives/2004/09/lawbiotech_diff.html
Berliner,
Thanks. I’ve learned something new today so it is now complete before noon.
If I was defending the caseI would find a third person who looks like these two. Then I would have third guy sitting in the front row and not second twin. Then I would have second twin come n and sit behind him. Confusion. Meanwhile defendant is stiting next to me at the counsel table.
When victim is on the stand I would have third guy cough and call attention to himself and then I would ask victim if third guy looked like the perp. Whether she says yes or no the jury will think he does. Lot of asians look alike in Marseilles dont they Miz Victim? When I get the dna expert on the stand cross him/her on dna similaritiies. Then about his doubts and his reasonable doubts. Meanwhile have look alike cough. Then drop all the dna experts papers on the ground and mix them up and ask him to identify the one with defendant’s dna profile on it. Oh, confused. Reasonable doubts.
Elwin is a good name for a twin by the way. We have a dog with that name here in the dogpac.
It the twins have a daddy and he is around, then I would throw him into the courtroom and the dna mix.
You did know, did you not, Miz DNA expert, that daddy and grandpa have the same dna? And that they both live in town?
If I was the prosecutor I would have a naked line-up with the faces covered to see of the victim could ID the perp by his weenie.
What brand of cerial did he rape? We had a dog here with a small one who liked Cheerios.
I’m amazed that that some want to dispense with the presumption of innocence or the need to have evidence of guilt beyond a reasonable doubt (or whatever the standard is in France). This case is interesting but presents no special problems. Either the police and prosecutor have good evidence that a particular person committed a particular crime and present their case for adjudication or they don’t and the guilty party remains free. Since there is apparently a test to discriminate between the twin, the easy answer here is for the state to do the test and find out which one committed the crime.
“There is evidence, the DNA evidence is a match. In the USA, at least, whether evidence is enough to convict is determined at TRIAL, not a priori.”
This is just wrong. The DA has an independent duty to only bring a prosecution when the DA believes there is evidence to support a verdict that the person is guilty beyond a reasonable doubt. You are correct that evidence does not need to be conclusive, but 50-50 evidence is not good enough to go to trial or to support a verdict.
Berliner: I do not think it makes a difference if the other twin testifies. There is a 50/50 chance that if we put one on trial, it is the guilty twin for that particular rape. If there is any circumstantial evidence leaning toward one or the other, choose that guy and present it. By your quote of French law, the sibling cannot provide an alibi, he cannot testify.
So if the twin being tried is NOT guilty, the question is whether HE will talk, or risk being convicted by an unsympathetic jury on the DNA evidence and the circumstantial evidence pointing to him. Will he risk going to prison to save his criminal brother?
If he is guilty, he will have to sit it out. If a tried twin goes free, then we try his brother for the same crime, on the theory that if it wasn’t one, it was the other. At that point we will have definitely put the innocent brother on trial. If that doesn’t work, we try them again for the second rape, in the alternate order (to make sure the innocent twin gets tried first at least once), with a new jury, and let them take their chances again. And again, if the innocent twin feels confident he can go silently through six juries without a conviction, he will have to prove it. If instead, in his defense he chooses to provide an alibi or convincing evidence he did not commit a rape, we have a chance to use that in convicting his brother.
Charge them in Texas and they will both be on death row, evidence be damned!
@Waldo: 50-50 is enough. I have seen the DA proceed on even less.
Raff,
At least they get the appearance of a trial….
Tony C.: I really can’t see this.
Judge: “So, all evidence point to both brothers, why do you want to open trial against this one and not the other? And why do you want to open trial only for one of the six rapes, is there another suspect?”
Prosecutor: “Well, we don’t really know if this twin is the perpetrator, we’re just throwing up to twelve indictments around in the vague hope that we can intimidate one of the brothers into making a statement or make something stick with a unsympathetic jury.”
Judge: “Please leave. You’ll get the ethics complaint in the mail.”
I’ve never understood the mentality of people who wouldn’t turn in a person they know to be guilty. What the hell is wrong with such people?
If I knew a friend or family member was a rapist, thief, or murderer, I wouldn’t hesitate (see also: David Kaczynski).
Before we fry someone in the chair,
Let’s at least prove there aren’t three of them.
http://en.wikipedia.org/wiki/Prisoner%27s_delimma
with twins
P Smith: I know that mentality quite well, some of my relatives have it. They consider the police, courts, and all of government their enemy and the representatives of their oppressors. When people are sub-middle class, they often see the courts as being rigged against them in favor of the rich that can pay for steep attorneys and buy favors to get them out of anything. When you are brought up to see patrol cars as cruising sharks looking for any excuse to ruin your day, you do not volunteer anything.
Berliner: How kind of you to make your judge so ethically minded, and your attorney incapable of the least amount of spin.
Some judges, and some ADAs, are interested in getting rapists off the street.
The proper spin, as I mentioned above, is to find circumstantial evidence against one of the brothers, or just an argument for why that brother seems the more likely suspect. The reason for trying one case is not unethical, you say it is the case for which you have the circumstantial evidence, and you fear the circumstances of the other cases might cause the jury to lose focus.
Is it illegal to try the cases separately?
If it is not illegal, it is a valid tactic, and I am pretty certain some judges would be willing to allow prosecutors to pursue an entirely legal strategy if it improved the odds of jailing a rapist trying to use a clever trick to circumvent justice. I see the non-rapist brother (if there is one) as guilty of aiding and abetting a violent criminal. We may not be able to charge either of them with that crime, but I do believe some judges would see it as I do, and have little sympathy for either brother, and allow prosecutors to proceed as planned under any excuse as long as it was not a direct violation of the law.
AY,
you are right. Or is that the appearance of impropriety?? I get them confused!
When you cross examine the DNA expert and she gives that apCray out about the one in six million chance that this is not the same DNA as found in the suspect in semen or what not, simply ask her how many of those one million did she test. When you get down to it, the percentage apCray is speculation.
When you cross examine the victim, ask if she saw the weenie. If she says yes then have a naked men with masks on faces do a line-up and ask her to ID the right one. It is about as accurate as DNA. Include the Prosecutor in the line up.