The crime allegedly took place on November 19, 2009 in the unnamed victim’s apartment. According to a FoxNews report, the victim had gotten up from bed when she was attacked by a man who had made entry into her residence. The victim was allegedly tied up and then sexually battered.
This case carries very serious consequences and presents a number of challenges for Weiner’s defense team. The first issue will concern whether or not he can be positively identified as the perpetrator. As despicable as a rape on a helpless elderly person can be, there may be serious problems with her ability to positively identify her attacker, especially since she is likely the only witness. When considering the likelihood that a criminal defendant has been misidentified, the courts will consider the following five elements: 1) the opportunity of the witness to view the offender at the time of the crime; 2) the witness’s degree of attention; 3) the accuracy of the witness’s prior description of the offender; 4) the level of certainty demonstrated by the witness at the confrontation between the witness and the accused; and 5) the length of time between the time of the crime and the confrontation between the witness and the accused. See Henry v. State, 519 So.2d 1988 (Fla. 4 DCA), citing Neil v. Biggers, 93 S. Ct 375 at 382 (1972).
However, in Weiner’s case, the police claim that they have DNA evidence which ties him to the crimes.
While DNA is a phenomenal source of evidence that both can incriminate and exonerate, not all DNA samples are of the same quality. Just because DNA was collected and just because a presumptive test says it may match Weiner, does not mean it really does. Conclusive testing of the available sample is required before any final conclusions can be drawn. Conclusive testing will require a quality sample that was properly collected, properly preserved, and properly tested. Any lapse in the collection, storage, or testing of the sample can cause inaccurate results. The collection, storage, and testing process is very intricate and requires attention to detail.
At the end of the day, Weiner’s defense team will need to depose the victim and determine whether or not she is capable of making a reliable, positive identification. Moreover, a deeper look into the true merit of any alleged DNA evidence will need to be conducted and any matching test results will need to be verified.
If the victim can reliably identify Weiner or if there is reliable DNA evidence, Weiner’s may find himself in a very precarious situation. Putting aside the serious nature of his charges, Florida law also allows judges to enhance prison sanctions when the victim is elderly or if the victim sustains any injury. The greater the injury, the more a sentence may be enhanced.
At the end of the day, we hope that the victim is able to recover and find peace for what she has been through, whether it is Weiner or another person who is truly responsible.