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JUSTICE McNULTY delivered the opinion of the court:

The prosecution charged defendant, Joecephus Mitts, with three separatesexual assaults that occurred in the Englewood area in an eight-day period. Thejury found him guilty of two of the assaults, but not guilty of the third. Defendant appeals from his convictions and sentences.

Just before 7 a.m. on December 14, 1993, L.B. walked down Hoyne Streettowards a bus stop on 55th Street. A man across the street, walking the oppositedirection, began crossing the street just as she started to cross. As she walkedpast, the man grabbed her arm and said, "[T]his is a stickup." He pulled out agun and pointed it at her head. He told her to walk with him, and if she ran hewould shoot her. He told her to take out her money. She did not give him anymoney.

The man took L.B. to a garage in a nearby alley and told her to take off herclothes. He threw her to the floor and lay on top of her, with the gun pointingto her head. He had vaginal intercourse with her. He struck her face with hisfist and told her she cried too much. Then he left.

Once the man was out of sight, L.B. ran home and her family called thepolice. She described the assailant as a black male about 5 feet 5 inches and 150pounds, wearing a black, hooded sweatshirt, blue jeans, gym shoes, and a knit cap. Police took L.B. to a nearby hospital, where they obtained a swab of semen foundin L.B.'s vagina.

Two days later, around 1:30 a.m., T.S. passed a man in an alley as shewalked on Wolcott Avenue, a few blocks from the location of the attack on L.B. The man walked up behind her, put a gun to her back and told her it was a stickup,and if she said anything he would "pop" her. He pulled her by the arm through agangway and into a garage. He kept repeating that if she said anything he would"pop" her.

Once in the garage the man told T.S. to give him her money. When she saidshe had none, he said he would get something from her. He told her to get on herknees, and he put his penis in her mouth. He then told her to take off herclothes. He took a neck chain from her and told her to bend over the car. He hadvaginal intercourse with her. He told her to wait five minutes or he would popher. She waited, then she ran home and her family called the police.

T.S. described the assailant as a black man, around 20 years old, 5 fet 6inches and 180 pounds, wearing a black Starter jacket, dark pants, and a skullcap. Police took T.S. to a nearby hospital, where they obtained a swab of semenfound in her vagina.

Shortly after midnight on December 22, 1993, L.W. got off a bus on 55thStreet and walked down Damen Avenue, less than two blocks from the location of theattack on L.B. A man walked up behind L.W. and said, "[T]his is a stickup,bitch." He grabbed her neck and pointed a gun at her back. He pushed her to agate and told her to climb over it. He climbed over and took her into a garage. He pushed her to her knees and said "stay there." He put his penis in her mouth. Then he told her to turn around. He pulled down her pants and made her lie on herjacket. He put his penis first in her vagina and then in her anus.

When the man got up, he asked L.W. whom she knew. She gave the name of arelative, and the man said he "fucked with the wrong female." He recognized therelative as a member of the Blackstones gang. He told L.W. to stay in the garageuntil he was gone. Once he left she ran home, where her family called police.

L.W. described the man who attacked her as 17 to 24 years old, about 5 feet8 inches and 170 pounds, wearing a black cap pointed left, a black, hooded coat,black pants and black shoes. Police took L.W. to a hospital where they obtaineda vaginal swab including semen.

After midnight on December 23, 1993, Officer Terrence Johnson patrolled thearea where the crimes occurred, looking for persons similar to the descriptionsL.B., T.S. and L.W. gave of the offenders. He saw defendant and two other blackmen talking near the corner of 55th and Seeley, which is between Damen and Hoyne. As he approached, the other two men began walking east on 55th. Johnson askeddefendant his name, where he lived, and what he was doing on the corner. Defendant gave his name and address and told the officer he was going to thestore. Johnson then went to ask the same three questions of the other two men.

Defendant was 23 years old, 5 feet 6 inches and 190 pounds. Because Johnsonthought defendant fit the descriptions of the offenders fairly well, he requesteda photograph of defendant from police department files. The process of obtainingthe photograph took several days.

On December 28, 1993, Sergeant Kevin Duffin watched defendant walking near55th and Damen. Duffin spoke to defendant briefly, searched him but found noweapon, then took him to the police station before driving defendant back toEnglewood. At some point Duffin asked defendant some questions.

When Johnson obtained defendant's photograph on December 30, 1993, heassembled a photo array and brought it to L.B. L.B. picked defendant's photographas a picture of the man who attacked her. Police arrested defendant and put himin a lineup. Both L.B. and L.W. identified defendant as the man who assaultedthem. In a later lineup T.S. also identified defendant as the man who attackedher.

In May 1994 the police lab compared the DNA found on the swab taken fromL.B.'s vagina with the DNA from L.B.'s and defendant's blood. The lab found amatch with defendant at six separate locations where DNA varies sharply fromperson to person.

The lab also compared the DNA found on the swab of L.W. with L.W.'s anddefendant's blood. The DNA on the swab matched neither L.W. nor defendant at mostlocations, but at some locations the analyst, Pamela Fish, found faint bands thatmight possibly match defendant's DNA, along with much clearer bands that matchedneither defendant nor L.W. In September 1994 Fish told the assistant State'sAttorney to look for a friendly source responsible for the clear bands matchingneither L.W. nor defendant.

The assistant State's Attorney never responded to Fish and never requestedtesting of the swab from T.S. The prosecution supplied the DNA tests to defensecounsel but never informed the defense of the identification of a friendly sourcefor the DNA found on the swab from L.W.

The prosecution moved to have evidence pertaining to all three assaultsadmitted into the case concerning the assault on L.B. The court found sufficientindication of a single perpetrator using a distinctive modus operandi, andtherefore the court granted the prosecutor's motion. The court subsequentlypermitted the prosecution to try defendant on charges of committing the threeassaults in a single trial.

The defense moved for a Frye hearing concerning the admissibility of DNAevidence. In support of the motion defendant presented statements and articlesfrom several experts concerning testing procedures and statistical analyses ofresults. The experts criticized the lack of random sampling in the creation ofDNA databases used for computing the probability of random matches. They alsocriticized police labs for their failure to perform blind proficiency tests tocheck on the accuracy of procedures. None of the police labs reported errorrates. In forensic tests, the analysts always know in advance which samplespolice want the lab to match, contrary to good scientific technique.

In one of the articles submitted in support of the motion, HarvardUniversity professor R.C. Lewontin explained the problem of laboratory error whenthe lab receives a small sample from a crime scene and some source to compare,like blood, from a suspect.

"While there is more than enough DNA recoverable from the suspect'slarge blood sample to carry out the needed procedures, the verysmall, and often degraded, sample from the crime scene does notcontain sufficient DNA for the comparison. To obtain sufficientmaterial, the DNA from the crime scene is 'amplified,' that is,copied thousands or millions of times in a procedure known aspolymerase chain reaction (PCR). *** The problem with the PCRtechnique is that because of its chain nature, contaminant moleculesin the original sample may also be amplified and, since the originalcrime scene sample contained so few molecules, contaminants mayoverwhelm the original in the amplification. ***

Now consider the actual practice in a forensic DNA laboratory. A technician is handling two samples. One is the very large DNAsample from the suspect's blood, the other is the minuscule DNAsample from the crime scene, which is then amplified by PCR. Thesituation is ideal for PCR contamination, with the result that thesuspect's DNA will not really be compared with that from the crimescene, but with his or her own DNA that has just been replicated inthe PCR reaction. The result will be a perfect match.

All of us who use the PCR technique regularly are acutelyconscious of the contamination problem, and the best laboratorieshave suffered occasionally from it. The perspiration and 'oils' onfingertips have provided enough DNA contamination in PCR experimentsto give completely artefactual results." R. Lewontin, Comment: TheUse of DNA Profiles in Forensic Contexts, 9 Stat. Sci. 259 (1994).

One study of laboratories in California found 2 false positives reportedfrom 110 samples tested. Based on the limited data available, an expert said "areasonable estimate of the false positive error rate is 1-4 percent." J. Koehler,DNA matches and statistics: important questions, surprising answers, 76 Judicature222, 229 (1993).

The prosecution presented no evidence in response. The court denied themotion for a Frye hearing and decided to admit the prosecution's DNA evidence,along with testimony from a defense expert.

Defendant moved to suppress identification testimony, arguing first thatOfficer Johnson violated his right to be free from unreasonable seizure whenJohnson stopped defendant on December 23, 1993. The court rejected the argument. Defendant also argued that the lineups were unduly suggestive. The court lookedat the photographs of the lineups and agreed with defendant that the lineups werenot perfect. Defendant was the darkest person in the first lineup, the shortestin the second lineup, and one of the heaviest in each lineup. But the court heldthat the lineups "pass constitutional muster." Accordingly, the court denied themotion to exclude identification evidence.

Defendant moved to suppress statements he allegedly made to Sergeant Duffin. Duffin testified that on December 28, 1993, he watched defendant walk back andforth near 55th and Damen for three hours. Duffin then approached and askeddefendant who he was and why he was out on the street on such a cold night. Defendant gave his name and said he was just going to a nearby mini-mart. Duffinasked to see some identification, but defendant did not have any. Defendant saidhe thought there might be a warrant outstanding for him. He explained thatEvergreen Park police had arrested him for possession of a controlled substance,and he might have missed the scheduled court date. Duffin offered to drivedefendant to the police station to determine whether the court had issued awarrant for his arrest. Defendant agreed. Although he searched defendant beforeletting him enter the police car, Duffin found no weapon.

Duffin testified that in the car he talked with his partner about handguns. Defendant asked what kind of guns they carried. After Duffin answered, he askeddefendant whether he ever owned a gun. Defendant answered that he had owned arevolver, but he sold it the prior week. At the station, police determined thatdefendant had not missed his court date on the possession charge. Duffin drovedefendant back to the location from which he picked him up.

Defendant testified that police arrested and handcuffed him just after hegot off a city bus. An officer took his identification and put him in the backof a police car. The police did not ask him anything in the ride to the station,and defendant asked them only why they arrested him. They questioned him at thestation, without Miranda warnings, for half an hour before driving him home. Defendant still said nothing about guns.

Based on his appraisal of the credibility of the witnesses, the judge deniedthe motion to suppress the statement. The trial began in October 1997.

After jury selection the prosecutor informed defense counsel that L.W. wouldtestify she had consensual sex with her boyfriend a few days before the attack. Defendant moved for a mistrial so that the defense could find the boyfriend andtest his DNA to determine whether it matched the DNA found on the swab of L.W. The prosecutor made no response. No evidence suggested that L.W. was everunavailable for questioning, and the prosecutor knew of the need to question herabout a boyfriend at least three years before trial. The court denied the motion,thereby requiring defendant to go to trial without the ability to compare theboyfriend's DNA to the DNA on the swab.

L.B., T.S. and L.W. separately identified defendant in court as the man whoattacked each of them. L.W. testified that she had intercourse with her boyfriendtwo or three days before the attack.

The analyst who tested the semen found in the attack on L.B. sworedefendant's DNA matched the DNA on the swab at six locations, and based on thelab's DNA database she estimated the probability of a random match at less thanone in one billion.

Pamela Fish, who tested the semen found after the attack on L.W., testifiedthat some semen may remain traceable in the vagina for 72 hours after intercourse. She admitted that the sperm most clearly present in L.W. did not match defendantat all, but she found faint traces indicative of sperm from a second source. Atone location on the DNA she found the faint band matched defendant's DNA, and atother locations the traces were far too light to positively rule out defendant asa potential source. The prosecution never asked her to compare the swab from L.W.with her boyfriend's DNA. The analyst admitted that the light banding patternshowed considerable signs of degradation. She also admitted that the swabcontained far more DNA which matched neither L.W. nor defendant.

On cross-examination, the defense asked the prosecution's expert about thecomposition of the database and whether the lab had procedures to assurerandomness to give an accurate picture of the DNA available in the population asa whole:

"Q. Those data bases, the vast majority, 90-some percent, ofthe samples you got came from the Chicago Morgue, right?

A. Correct.

Q. Basically they were murder cases, correct?

A. I can't say what all of the samples came from, but most ofthem did come from the Cook County Morgue, the Medical Examiner'sOffice.

THE COURT: The morgue handles homicide cases and it handlesnatural death cases and it handles accident cases.

Q. In fact, if you go out and look at the actual filesassociated with those case numbers [of the samples that come to thelab for inclusion in the database], the vast majority of them aremurder cases, right?

[Prosecutor]: Judge, I object.

THE COURT: Sustained. ***

***

Q. *** [I]n order for these data bases to be valid data basesthey have to be randomly selected, right?

A. Correct.

Q. Essentially, the murderers in Chicago were doing theselection, weren't they?

[Prosecutor]: Objection.

THE COURT: Sustained. First, we are talking about victims, notmurderers, from the morgue. And secondly, I have already indicatedthe jury can take note that the morgue treats accidental deaths andit treats natural deaths where the cause of death is not apparent. It treats all kinds of various death situations, and it doesn't makeany difference."

At that point the defense abandoned the effort to show that departmentprocedures did not meet scientifically acceptable standards for construction ofa random database that accurately reflects the DNA available in the population.

Defendant's expert testified that the faint bands shown on the test of theswab from L.W. most likely arose from bacterial contamination or degradation ofthe DNA. At most locations, nothing at all appeared where banding should appearif DNA from two separate semen sources accounted for any of the banding. Theevidence excluded defendant as a possible source of the semen. The expertdescribed the evidence as "one of the cleaner exclusions [he had] ever seen."

In response to the theory that the primary bands came from L.W.'s boyfriend,and the faint bands came from defendant, the expert noted studies showing thatvaginal swabs taken 48 hours after intercourse do not provide any reliablematerial for DNA testing. If the banding pattern reflected two separate sources,then the clear banding pattern came from the more recent source, the man whoattacked L.W., and the faint bands must reflect the DNA pattern of the semen lefttwo to three days before the attack, when L.W. had intercourse with her boyfriend.

The jury found defendant not guilty of the attack on L.W., but guilty ofaggravated criminal sexual assaults on L.B. and T.S., as well as armed robbery ofT.S. and attempted armed robbery of L.B. The judge sentenced defendant toconsecutive sentences totaling 210 years. The prosecution concedes that thesentence violates statutory limits of the court's sentencing authority. See 730ILCS 5/5-8-4(c)(2) (West 1996).

On appeal defendant argues that the State's discovery violation requiresreversal. The prosecution did not inform defendant until the day of trial, afterjury selection, that L.W. had intercourse with her boyfriend two or three daysbefore the attack.

The prosecution answers first that it did not learn of the evidencesignificantly before the defense learned it. However, nothing in the recordsupports the assertion. The laboratory analyst working with the DNA samples askedthe prosecutor, three years before trial, to find out whether L.W. had consensualsex shortly before the attack. No evidence showed that L.W. was unavailable toprosecutors for any significant time in that three-year period. Thus, theprosecution should have discovered the suppressed evidence approximately threeyears before trial, and no evidence shows a failure to discover it at that time.

Next, the prosecution contends that defendant waived objection to thediscovery violation by failing to request a continuance rather than a mistrial. We disagree. A defendant's failure to request a continuance does not waiveobjection to a discovery violation if a continuance cannot correct the prejudice. See People v. Weaver, 92 Ill. 2d 545, 559-60, 442 N.E.2d 255 (1982); People v.Matthews, 299 Ill. App. 3d 914, 921, 702 N.E.2d 291 (1998). A simple interviewwith L.W. or her boyfriend would not undo the damage to the defense case due tothe discovery violation here. The defense needed to test the boyfriend to verifyits expert's theory that the boyfriend matched, at best, the faint banding theprosecution's analyst found. The expert believed that the most evident DNA camefrom the man who attacked L.W., and that man probably also attacked T.S. and L.B. The necessary testing would take far longer than the time for which the courtcould reasonably keep the jury waiting. Therefore, only a mistrial would give thedefense the opportunity to perform the needed tests. Defendant properly preservedobjection to the discovery violation when he sought appropriate relief at trial.

The prosecution also argues that defendant waived the issue by failing toraise it with sufficient specificity in the posttrial motion. In the motiondefendant specifically objected to the court's ruling on the motion for mistrial. The objection appears to be sufficiently specific, in the context of this case,to remind the trial court of the error the defense sought to rely upon, which isthe same error he relies upon on appeal. See People v. Groves, 294 Ill. App. 3d570, 574, 691 N.E.2d 86 (1998). Moreover, the waiver rule is a limitation on theparties and not on the jurisdiction of the court. People v. Shaw, 186 Ill. 2d301, 327, 713 N.E.2d 1161 (1999). We choose to address the issue in part becausedefendant could raise waiver of the issue as grounds for finding ineffectiveassistance of counsel in a postconviction petition. See People v. Mitchell, 152Ill. 2d 274, 285, 604 N.E.2d 877 (1992).

"Illinois courts have relied on the following factors to determine whethera defendant is entitled to a new trial as a result of a discovery violation: thecloseness of the evidence, the strength of the undisclosed evidence, thelikelihood that prior notice would have helped the defense discredit the evidence,and the willfulness of the State in failing to disclose the new evidence." Matthews, 299 Ill. App. 3d at 919.

The undisclosed evidence here has particularly strong effect. If the DNAfound on the swab of L.W. does not match L.W.'s boyfriend, then that semen camefrom the man who attacked her. The test of defendant's DNA shows that he is notthe man who produced that semen. The prosecution persuaded the court that theassaults on L.B. and T.S. had enough in common with each other and the attack onL.W. that one man probably committed all three assaults. L.W.'s identificationof defendant as her attacker shows that the man who attacked her looked much likedefendant, even though a DNA test of L.W.'s boyfriend might conclusively provethat defendant did not attack L.W. Thus, the man who assaulted all three victimsmay be a man who looks like defendant, but who has the DNA most prevalent on theswab from L.W.

The convictions for the assault on T.S. rested solely on T.S.'sidentification of defendant and the evidence that one man committed all threeassaults. Prosecutors never requested a test to match the swab of T.S. withdefendant. If L.W. mistook defendant for the man who attacked her, T.S. couldalso have mistaken defendant for the man who attacked her. Even L.B. could havemistaken defendant for the man who assaulted her. The evidence showing a clearmatch with defendant's DNA might have resulted from laboratory error, such ascontamination of the kind Lewontin described.⁽¹⁾ Thus, if the test of L.W.'sboyfriend confirms the defense expert's theory, defendant probably should beacquitted for the assault on T.S., and might even be acquitted for the assault onL.B.

The evidence concerning the assaults on T.S. and L.B. may become veryclosely balanced, depending on the result of the DNA test of L.W.'s boyfriend. Prior notice would have permitted the tests necessary to refute the prosecution'stheory that L.W.'s boyfriend, and not the man who assaulted L.W., produced thesemen primarily found on the swab of L.W. Due to the prosecution's knowledge,three years before trial, of the need to look for evidence that L.W. hadconsensual intercourse shortly before the assault, the failure to find theevidence and disclose it to defense in advance of trial appears willful. Accordingly, applying the test restated in Matthews, we hold that the discoveryviolation requires reversal of the convictions. As defendant does not challengethe sufficiency of the evidence, we remand for a new trial.

We address some other issues that may arise again on retrial. Defendantcontends that the trial court should have suppressed identifications derived fromOfficer Johnson's unreasonable seizure of defendant. Our supreme court, in Peoplev. Murray, 137 Ill. 2d 382, 388-90, 560 N.E.2d 309 (1990), adopted the definitionof "seizure" set forth in United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d497, 100 S. Ct. 1870 (1980).

In Mendenhall drug agents approached the defendant as she walked through anairport. After identifying themselves, the agents asked to see the defendant'sidentification and airline ticket. The Court held that no seizure occurred whenthe defendant voluntarily responded to the requests. The Court explained:

"We adhere to the view that a person is 'seized' only when, bymeans of physical force or a show of authority, his freedom ofmovement is restrained. Only when such restraint is imposed is thereany foundation whatever for invoking constitutional safeguards. Thepurpose of the Fourth Amendment is not to eliminate all contactbetween the police and the citizenry, but 'to prevent arbitrary andoppressive interference by enforcement officials with the privacy andpersonal security of individuals.' [Citation.] As long as the personto whom questions are put remains free to disregard the questions andwalk away, there has been no intrusion upon that person's liberty orprivacy as would under the Constitution require some particularizedand objective justification.

***

We conclude that a person has been 'seized' within the meaningof the Fourth Amendment only if, in view of all of the circumstancessurrounding the incident, a reasonable person would have believedthat he was not free to leave." Mendenhall, 446 U.S. at 553-54, 64L. Ed. 2d at 509, 100 S. Ct. At 1877.

Officer Johnson's conduct here similarly does not qualify as a seizure. When Johnson approached defendant and two other men as they talked on the street,the two men walked away. This provides a strong indication that reasonablepersons would have believed they were free to walk away when Johnson approached. The questions Johnson asked defendant are strikingly similar to the questions inMendenhall, as Johnson asked defendant only for his identification and where hewas going. The trial court did not commit manifest error by denying the motionto suppress identifications derived from Johnson's contact with defendant. SeeMurray, 137 Ill. 2d at 387.

Next, defendant challenges the admissibility of Sergeant Duffin's testimonythat defendant said he owned a gun. According to Duffin, defendant made thestatement in response to Duffin's question while riding in a police car to apolice station and without any prior Miranda warnings.

Our supreme court has explained that police must give Miranda warnings priorto any custodial interrogation. People v. Brown, 136 Ill. 2d 116, 124, 554 N.E.2d216 (1990).

"The determination of whether an interrogation is custodialshould focus on all of the circumstances surrounding the questioning,such as: the location, length, mood and mode of the interrogation;the number of police officers present; any indicia of formal arrestor evidence of restraint; the intentions of the officers; and theextent of knowledge of the officers and the focus of theirinvestigation. [Citation.] The trial court must examine and weighthese factors, along with the credibility of the witnesses. It thenmust make an objective determination as to what a reasonable man,innocent of any crime, would perceive if he were in defendant'sposition." Brown, 136 Ill. 2d at 124-25.

The question here occurred in a police car, but not all questions asked inpolice stations or police cars amount to custodial interrogations. Brown, 136Ill. 2d at 130-31. The question was very brief, and Duffin's testimony shows nofurther questioning. The trial court found Duffin's testimony credible, includingthe testimony that the question arose in the course of a conversation withdefendant. Duffin's partner heard the question. Apart from the protective patdown, nothing in the encounter between defendant and police gave the appearanceof a restraint. The trial court found that a reasonable person in defendant'sposition would have believed he was free to leave. Therefore, the court found nocustodial interrogation, and no need for Miranda warnings. We cannot say that theruling constitutes manifest error. See Brown, 136 Ill. 2d at 125.

Defendant also asks us to review the judge's statements, during cross-examination of the prosecution's experts, concerning the source of the policelab's DNA database. The prosecution argues that the trial court could takejudicial notice of those sources. The trial court may take judicial notice offacts capable of immediate and accurate demonstration by resort to easilyaccessible sources of indisputable accuracy. In re Marriage of DeBow, 236 Ill.App. 3d 1038, 1040, 602 N.E.2d 984 (1992). The prosecution does not suggest anysource for information concerning the police lab's database, let alone a readilyaccessible source of indisputable accuracy. The court must refrain from offeringtestimony for the prosecution from the bench on retrial. See People v. White, 241Ill. App. 3d 291, 298-99, 608 N.E.2d 1220 (1993).

Finally, defendant contends on this appeal that the court erred by holdingthe evidence of attacks on L.B. and L.W. admissible in the case concerning T.S. While the parties' positions on this evidence may change on remand, we believe theissue may arise again.

In People v. Berry, 244 Ill. App. 3d 14, 613 N.E.2d 1126 (1991), the courtrestated the pertinent principles and applied them to conspicuously similar facts. In Berry, a man came up behind the victim late at night, grabbed her and coveredher mouth with his hand. He said, "[T]his is a stick-up" and told her if shescreamed he would kill her. 244 Ill. App 3d at 16. The man shoved the victiminto a nearby gangway, took her money, and demanded oral and vaginal sex. Lessthan three weeks later, shortly after midnight, a man asked a second victim fordirections. He then grabbed the victim and put a hand over her mouth and told herif she screamed he would hurt her. He first demanded money, then forced her intoa gangway where he ordered her to take off her clothes and masturbate. He thendemanded oral and vaginal sex. Each victim described the offender as a muscularblack man with curly hair, but the descriptions had little further detail. Bothvictims identified defendant as the assailant. The trial court permittedtestimony concerning the second crime into evidence at a trial about the attackon the first victim. The court accepted the prosecution's theory that the twoattacks showed a single modus operandi.

The appellate court said:

"Generally, evidence of other crimes is inadmissible if relevantmerely to establish a defendant's propensity to commit crime.[Citations.] Evidence of the commission of other crimes isadmissible, however, when such evidence is relevant to prove anypurpose other than propensity to commit crime, such as modusoperandi, intent, motive, or absence of mistake. [Citations.] It iswithin the sound discretion of the trial court to determine whetherevidence of other crimes is relevant to a material issue and whetherthe probative value of such evidence outweighs its prejudicialimpact; this determination will be overturned only if there exists aclear abuse of discretion. [Citation.]

The State proffered the other crimes evidence in this casepursuant to the modus operandi exception. The modus operandi or'method of working' exception refers to a pattern of criminalbehavior so distinct that separate offenses are recognized as thework of the same person. [Citation.] Between the offense offered toprove modus operandi and the offense charged, there must be a clearconnection which creates a logical inference that, if defendantcommitted the former offense, he also committed the latter.[Citation.] This inference arises when both crimes share peculiarand distinctive features not shared by most offenses of the same typeand which, therefore, earmark the offenses as one person's handiwork.[Citations.] The offenses need not be identical but must sharefeatures which, although common to similar crimes in general, aredistinctive when considered together." Berry, 244 Ill. App. 3d at21.

The appellate court in Berry noted the similarities in time, location, andsome of the assailant's words and actions, but the court agreed with the defendantthat no feature of the crimes could be considered unique. The court also notedthe significant differences in methods and demands, but concluded that the circuitcourt did not clearly abuse its discretion by allowing testimony concerning thesecond crime into evidence. Berry, 244 Ill. App. 3d at 22; see also People v.Johnson, 97 Ill. App. 3d 1055, 1067-68, 423 N.E.2d 1206 (1981).

Here, too, we find the similarities in location, time, and method fail toshow any unique features, and the crimes have some dissimilarities. Nonetheless,we find no abuse of discretion in the decision to admit the evidence of the crimesagainst L.B. and L.W. into evidence in the case concerning the assault on T.S. On remand, the court should allow into evidence testimony concerning all threecrimes in trial on charges related to the attacks on L.B. and T.S., especially ifthe DNA of L.W.'s boyfriend proves that she misidentified defendant as the man whoattacked her. See People v. Tate, 87 Ill. 2d 134, 141-43, 429 N.E.2d 470 (1981)(court employed same standard to determine admissibility of other crimes evidenceoffered by defense as applied to prosecution's evidence of other crimes).

The evidence sufficiently supports the trial court's conclusion that OfficerJohnson did not seize defendant when he spoke to him briefly on the street. Sergeant Duffin's testimony also supports the decision to admit defendant'sstatement to Duffin into evidence. The court properly admitted testimony aboutall three crimes into evidence at the trial concerning each individual crimebecause the crimes sufficiently showed a single modus operandi. But theprosecution's failure to disclose the identity of a possible source of the semenfound on the swab from L.W. requires reversal and remand for a new trial on thecharges related to the assaults on L.B. and T.S., particularly because timelydisclosure would have given the defense an opportunity to develop exculpatoryevidence.

On petition for rehearing the prosecution argues primarily that "the Statedid not have to make defendant's case for him." The prosecution apparentlymisunderstands its duties. A prosecuting attorney

"is the representative not of an ordinary party to a controversy, butof a sovereignty whose obligation to govern impartially is ascompelling as its obligation to govern at all; and whose interest,therefore, in a criminal prosecution is not that it shall win a case,but that justice shall be done. As such, he is in a peculiar andvery definite sense the servant of the law, the twofold aim of whichis that guilt shall not escape or innocence suffer." Berger v.United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 1321, 55 S. Ct. 629,633 (1935).

Our supreme court emphasized:

"It is the duty of the prosecuting officers, as representatives ofall the People of the State, not merely to endeavor to obtainconvictions in criminal cases but, if the evidence so warrants, tosee that a person unjustly accused of crime is absolved from thestigma of a conviction and discharged from custody." People v.Schoos, 399 Ill. 527, 532, 78 N.E.2d 245 (1948), overruled on othergrounds, People v. Izzo, 14 Ill. 2d 203, 209, 151 N.E.2d 329 (1958).

While prosecuting attorneys ordinarily rely on police and other agencies forinvestigation of criminal acts, the attorney has an affirmative duty toinvestigate the facts to determine whether the accused has committed an offense. People v. Nohren, 283 Ill. App. 3d 753, 758, 670 N.E.2d 1208 (1996). Thus, whenthe prosecutor finds evidence casting doubt on the guilt of the accused, theprosecutor has a duty to pursue that evidence to determine whether the State'sAttorney should continue to prosecute the accused.

Here, the DNA test of the swab from L.W. showed a principal banding patternmatching neither L.W. nor defendant. The prosecuting attorney knew then that thepattern derived from either L.W.'s consensual sexual partner, contamination, orthe person who actually raped L.W. The prosecutor relied on the theory that theprincipal banding came from consensual intercourse that took place several daysbefore the rape, and the rapist left very little DNA trace of the rape. Therapist might have left a faint pattern, the prosecution suggests, due to therapist's "low sperm count." But the strong banding pattern found from the testof the swab taken from L.B. showed that defendant did not suffer from such lowsperm count - unless the test of the swab from L.B reflected contamination bydefendant's blood. Therefore, the prosecution had evidence giving considerablereason to doubt that defendant actually raped L.W.

A reasonably straightforward investigation could help resolve the doubt. The prosecutor only needed to contact its witness, L.W., to ask her, as Fishrecommended, with whom she had consensual intercourse before the rape. If thatman agreed to give blood, the laboratory could determine whether he provided thesperm most evident on the swab of L.W.

The prosecutor's obligation to perform this investigation goes beyond theobligation not to prosecute the defendant for a crime he did not commit. If thelab test shows that L.W.'s boyfriend does not match the principal banding patternon the swab, then the prosecutor would have very strong evidence that a rapist,with the DNA found on the swab, remained at large, unprosecuted for his offense. The prosecutor fails to meet the duty to see that the guilty do not escape if hefails to look for the person who raped L.W.

The puzzling decision not to test the swab from T.S. takes on a more ominousappearance when viewed in light of the prosecution's miscontruction of officialduties. If the prosecutor decided not to test the swab because doing so might"make defendant's case for him," then the prosecutor has pursued a prosecutiondespite substantial doubt of the defendant's guilt. When the prosecutor hasreason to doubt the guilt of the accused, he must pursue the evidence to determinewhether to continue the prosecution.

The State points out that the public defender also failed to pursue allpossible evidence concerning the identity of the person or persons who raped L.B.,T.S. and L.W. The duties of other governmental officers, and the arguable neglectof such duties, have no effect on the prosecutor's duties.

The prosecutor has no obligation to clear cases. He has a duty to use alllawful means that respect the constitutional rights of individuals to investigateillegal activity and discover the perpetrators of such activity. When theprosecutor finds evidence that a defendant may not have committed the crime forwhich he stands accused, the prosecutor has an affirmative duty to pursue thatevidence and determine the identities of the actual perpetrators, as part of hisduty to see that the innocent should not suffer punishment. Because the petitionfor rehearing demonstrates misunderstanding of these duties, the petition isdenied.

Reversed and remanded.

TULLY, J., concurs.

COUSINS, J., concurs in part and dissents in part