They didn’t find my fingerprints on that gun, how can they still charge and convict me with that crime?
Popular TV shows like NCIS, CSI, and even sometimes Law & Order are based on forensic investigation catching criminals who believed they committed the perfect crime. Many of these television dramas focus on DNA evidence such as fingerprints identification or dactyloscopy.
Dactyloscopy compares two instances (impressions) of fingerprints to determine whether those two impressions came from the same individual. Fingerprints are ridge skin impressions from a person’s hands or feet. Everyone’s skin impressions are different so everyone has a unique set of fingerprints. In theory, fingerprints or the lack of fingerprints should be a critical piece of evidence in any criminal investigation. If a person’s fingerprints are at the crime scene, most people think that should mean a person committed the felony or the misdemeanor crime charged especially a crime involving an illegal gun or firearm.
If this was the case, no fingerprints would mean that a person didn’t commit the crime and he shouldn’t be charged or acquitted …right? This, however, is simply not true. I am sorry to disappoint the fans of NCIS, CSI, or the latest criminal investigation drama. A lack of fingerprints will not always end a criminal investigation or lead to the dismissal of criminal charges; especially those involving an illegal gun or firearm.
What is the problem with fingerprint evidence and guns?
It’s often difficult to obtain fingerprints from some surfaces, especially firearms. The ability to lift fingerprints from a surface (latent fingerprints) is really based on the type of surface. It’s much easier to lift latent fingerprints from smooth surfaces such as glass, tile, porcelain, lacquered furniture and some smooth clean metals. The process, however, gets more difficult, when we move to painted surfaces, leather, paper and cardboard. Getting fingerprints is even harder for organic surfaces such as fabrics, trees and non-organic textured surfaces such as checkered handgun grips. Many investigations for gun crimes focus on lifting prints from these firearms.
Lifting latent fingerprints from guns and other firearms is often, however, very difficult. It’s hard because these firearms, especially, ones used in crimes, are often oily, extremely dirty surfaces with multiple overlapping impressions smeared by movement. The fact that the prosecution can’t present fingerprint evidence doesn’t mean their case isn’t strong. The prosecution can meet its burden of proof of guilt beyond a reasonable doubt with direct and circumstantial evidence. Prosecutors and district attorneys, in these situations, will also normally present an expert who can explain the lack of fingerprint evidence. Obviously, fingerprints can help a criminal prosecution but their existence doesn’t mean the case is a loser for the defense.
Just like the prosecution’s expert can explain away the lack of fingerprints, a good defense expert can explain away their existence. Either way, fingerprints are never case killer in a criminal or even a civil case. In other words, fingerprints, won’t instantly win or lose the case for either side. Remember TV shows and movies are great but if you are charged with a crime don’t think fingerprints will sink you or set you free.
Actual vs. Constructive Possession – Illegal Guns & Firearms
Finally, clients frequently come to our office and claim that the police have charged them with possession of either illegal drugs or firearms. Many believe that the charges are baseless because the police did not find any of the items in question on their person at the time of arrest. It is important to understand that if the prosecution isn’t able to prove that a person actually possessed an illegal item, it may demonstrate constructive possession of such items by showing that one had control over the item or intended to exercise control over the item. Actual possession means that the illegal item is found on your person while constructive possession means that the item is found within your immediate control and you had the ability to exercise dominion and control over it.
A constructive possession analysis requires that a judge or jury exam the totality of the circumstances surrounding the arrest. A judge or jury may convict a defendant for illegal possession of a gun or firearm under a constructive possession theory where it appears, under the totality of the circumstances, the person exercised conscious dominion and control over it.
Motor Vehicle Stops & Constructive Possession
It’s important to understand that your mere presence in a vehicle which contains contraband does not establish your possession of an illegal item beyond a reasonable doubt. There are a number of cases in Pennsylvania which state that unless the prosecution can establish constructive possession of an item against all occupants within a motor vehicle, it cannot establish constructive possession against one occupant. This case law is very strong for a defense and it’s important that your criminal lawyer keep it in mind if your case involves a motor vehicle stop and any type of illegal gun, drug, or weapon.
What happens if you’re convicted of gun or drug offense?
In most situations, illegal gun or firearm charges are felony offenses and if convicted a person is subjected to a likely state prison sentence. In New Jersey, the illegal possession of a handgun carries with it a mandatory minimum 42 month state prison sentence unless your attorney, following a conviction or plea, can successfully argue that you should receive a waiver to that mandatory minimum sentence.
While Pennsylvania does not maintain a mandatory minimum sentence law for the illegal possession of a firearm, it does have a mandatory minimum sentence for the illegal transfer or sale of a firearm. The illegal possession of gun is a felony charge is usually graded as a felony level offense in Pennsylvania and New Jersey.
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