Axiom 3. People have a prima facie but not fundamental right to withhold their identity.
In Hiibel v. Nevada the U.S. Supreme Court ruled that a person does not have a constitutional right to withhold his or her identity. On the other hand, police cannot stop a person without reasonable suspicion simply to acquire the individual’s identity.9 Thus, if we extrapolate from Hiibel v. Nevada, even if DNA were used exclusively for “identification purposes,” there are still limits on what police can do to obtain DNA identity. Law enforcement may have to meet a just-cause or reasonable-suspicion requirement to create a DNA profile.
It is important to note that DNA is not simply being collected “for identification purposes.” The identity of individuals arrested or convicted is already known or can be made known through means far simpler and more efficient than DNA testing. The purpose of collecting DNA from known individuals is not principally one of identification, but rather of investigation and inculpation.
Axiom 4. The taking of DNA constitutes a search. Therefore, in order for the police to forcibly collect DNA from an individual suspected of a crime, they must have a warrant supported by probable cause.
In United States v. Mitchell the U.S. District Court (Western District of Pennsylvania) addressed whether the government could collect a sample of the defendant’s DNA before trial and without a warrant. This case directly challenged the federal law enacted in 2006 that granted the U.S. attorney general the authority to collect DNA from individuals arrested or non-U.S. persons detained under federal authorities. In its ruling the court noted:
A DNA profile generates investigatory evidence that is primarily used by law enforcement officials for general law enforcement purposes. To allow such suspicionless searches, which are conducted in almost all instances with law enforcement involvement, to occur absent traditional warrant and probable cause requirements will intolerably diminish our protection from unreasonable intrusion afforded by the Search and Seizure Clause of the Fourth Amendment.10
Axiom 5. DNA data banks should be limited to DNA profiles from persons who are convicted of felonies.
The United States and other countries should follow the wisdom of the European Court of Human Rights in rejecting the blanket and indiscriminate collection of DNA from persons suspected but not convicted of crimes. Individuals detained or arrested are presumed innocent and should not have their DNA and accompanying profiles shared in a database.
The state has an obligation under its public safety mandate to maintain accurate records of convicted felons, for it is not unusual for such felons to commit additional crimes or to take on new identities to mask their criminal record. Nevertheless, convicted felons, whether or not they are incarcerated, do not lose all their privacy rights under the Fourth Amendment. For example, informed consent may still apply to a prisoner’s DNA when it is sought for research purposes. Beyond the storage of the DNA profile in the database for use in linking the offender to additional or future crimes, convicted felons should still retain privacy rights over the coding sequences of their genome without the state’s overriding interest being demonstrated.
In cases where the DNA from a suspect is collected by way of a warrant, and the charges against that suspect are dropped or the individual is not convicted, the individual’s DNA profile should be expunged automatically from the police record, and its biological source should be destroyed. Responsibility for expungement should rest with law enforcement; no petition or written request from the individual should be required.
Axiom 6. Written informed-consent procedures and proper protections against coercion should be in place for warrantless searches of nonsuspect DNA samples when police engage in voluntary DNA dragnets.
As noted in chapter 3, DNA dragnets have been conducted with varying degrees of police neglect of informed voluntary consent by suspicionless individuals who are asked to submit a DNA sample. In the very least, procedural guidelines are needed that establish a proper balance between individual privacy, informed consent, and law-enforcement goals.
DNA dragnets should be used by police only as a last resort and should be limited in scope to those who had access to the victim or who match a detailed description of the perpetrator. Those approached to provide DNA samples should be informed of their rights of refusal. Samples and profiles should be destroyed upon close of the investigation.
Axiom 7. Police seeking to acquire and analyze the DNA of family members of an individual identified through a partial match must obtain a warrant.
There are currently no consent procedures, warrants required, or national guidelines for familial searches. States, including New York and California, are beginning to introduce rules that allow law-enforcement authorities to conduct familial searches under their own standards.11 DNA sweeps carried out through familial searches inculpate suspicionless individuals. In some families this can include parents, children, and siblings. Therefore, by Axiom 4, police must obtain a warrant if they seek to acquire and analyze DNA of a family member of someone identified through a partial match. Being a family member of someone whose DNA has been partially matched with DNA left at a crime scene should not, by itself, constitute probable cause.
Axiom 8. Surreptitious taking, testing, or storing of DNA from suspects or their relatives is a violation of a person’s privacy and should be prohibited.
The current dominant framework that assumes that DNA collected from coffee cups, cigarette butts, and saliva samples is “abandoned” allows police to pick up DNA anywhere, from anyone, at any time, and is in direct conflict with the most fundamental notions of genetic privacy. As discussed in chapter 6, thus far no court has ruled against obtaining DNA from discarded objects through surreptitious means. As legal analyst Elizabeth Joh states, “The collection of abandoned DNA by police threatens the privacy rights of everyone. The law permits it, and the police seek it. Advances in molecular genetics will permit ever greater exploitation of that personal information once it is acquired.”12 Joh refers to sampling DNA on discarded objects as “covert involuntary DNA sampling.”13
Axiom 9. The analysis of crime-scene DNA should be limited to identity and to those externally perceptible traits whose DNA markers have been scientifically validated.
At a crime scene all materials, including DNA, that could help police determine the identity of the victim and perpetrators and/or the methods used in the criminal activity are open to forensic investigation without warrants. However, such investigation must be strictly limited to standard forensic DNA analysis of the 13 STRs (or equivalent in other countries) and nonsensitive, nonstigmatizing, externally perceptible traits, such as hair color and stature. Any attempts to mine crime-scene DNA to make predictions about the medical or behavioral characteristics of the alleged perpetrator should be prohibited.
Axiom 10. Offender or suspect biological samples should be destroyed after DNA profiling so that the encoded information cannot be accessed for information beyond the DNA profile.
The most significant privacy concerns with DNA collection relate to the stored biological samples. The only way to ensure that misuses of the samples do not occur is to destroy the biological source of DNA after a DNA profile is generated. The biological sample is not necessary to link the source individual to DNA left behind at a crime scene—all the information that is needed is contained in the DNA profile. Since the individuals are known, another sample can always be collected if needed. If for some reason additional coding sequences of a felon’s DNA are needed for an investigation, a warrant can be sought to obtain that information.
The development and implementation of policies for collecting DNA profiles in a national data bank has followed a path that some political scientists and policy experts call “disjointed incrementalism.” Each state sets its own guidelines and rules in the context of de minimis federal standards. Step-by-step expansions of the reaches of the database have served to mask the long-term downsides to a system that places inadequate emphasis on overarching pri
nciples of privacy and justice in the quest to solve crime. The pitfalls of piecemeal policymaking have been worsened by the fact that many of the decisions with regard to DNA collection and use by law enforcement have been made by default and have not been reviewed in the courts.
In this book we have tried to provide a holistic and coherent picture of forensic DNA data banks. Building on data and studies from the United States, Asia, Australia, and Europe, we have sought to illustrate both the assets and liabilities of the technology for its use in criminal justice. The principles we have outlined in this chapter arise out of our exploration of the impacts of DNA expansion on privacy and justice and our examination of questions of efficacy and fallibility. Much remains to be done to establish this powerful technological tool in a manner that conforms to our sense of fairness and justice and balances the values to society of solving felony crimes, freeing innocent and wrongly convicted individuals, and preserving our rights of privacy.
APPENDIX: A COMPARISON OF DNA DATABASES IN SIX NATIONS
NOTES
Introduction
1. Tristana Moore, “Germany Hunts Phantom Killer,” BBC News, April 11, 2008, http://news.bbc.co.uk/2/hi/europe/7341360.stm (accessed May 17, 2009).
2. “DNA Bungle Haunts German Police,” BBC News, March 28, 2009, http://news.bbc.co.uk/2/hi/europe/7966641.stm (accessed May 17, 2009).
3. Roger Boyes, “Phantom of Heilbronn: Hunt for the Killer Who Leaves Clues and Bodies,” The Times, April 10, 2008, http://www.timesonline.co.uk/tol/news/world/europe/article3715800.ece (accessed May 17, 2009).
4. “DNA Clues in Hunt for ‘Faceless’ Serial Killer,” Telegraph, April 14, 2008, http://www.telegraph.co.uk/news/worldnews/1584625/DNA-clues-in-hunt-for-faceless-serial-killer.html (accessed May 17, 2009).
1. Forensic DNA Analysis
1. Committee on DNA Forensic Science, National Academy of Sciences, The Evaluation of Forensic DNA Evidence (Washington, DC: National Academy Press, 1996), 36.
2. Barry Commoner, “Unraveling the DNA Myth,” Harper’s 304, no. 1821 (February 2002): 44.
3. Saurabh Asthana, William S. Noble, Gregory Kryukov, Charles E. Grant, Shamil Sunyaev, and John A. Stamatoyannopoulos, “Widely Distributed Noncoding Purifying Selection in the Human Genome,” Proceedings of the National Academy of Sciences of the United States of America (PNAS) 104 (July 17, 2007): 12410–12415.
4. John M. Greally, “Encyclopedia of Humble DNA,” Nature 447 (June 14, 2007): 782–783.
5. Colin Nickerson, “DNA Study Challenges Basic Ideas in Genetics: Genome ‘Junk’ Appears Essential,” Boston Globe, June 14, 2007, A1.
6. Oak Ridge National Laboratory, U.S. Department of Energy, “Human Genome Project Information,” http://www.ornl.gov/sci/techresources/Human_Genome/elsi/forensics.shtml (accessed March 27, 2010).
7. William C. Thompson and Dan E. Krane, “DNA in the Courtroom,” in Psychological and Scientific Evidence in Criminal Trials, ed. Jane Campbell Moriarty (Minneapolis: West Publishing, 2003), 11-4, 11-5.
8. Reprinted from National Institute of Standards and Technology, Chemical Science & Technology Laboratory, http://www.cstl.nist.gov/strbase/fbicore.htm (accessed March 27, 2010).
9. L. A. Zhivotovsky, “Population Aspects of Forensic Genetics,” Russian Journal of Genetics 42, no. 10 (2006): 1426–1436.
10. William C. Thompson, Simon Ford, Travis Doom, Michael Raymer, and Dan Krane, “Evaluating Forensic DNA Evidence,” Champion (April 2003): 23.
11. Erin Murphy, “The Art in the Science of DNA: A Layperson’s Guide to the Subjectivity Inherent in Forensic DNA Typing,” Emory Law Journal 58 (2008): 496–512, quotation at 503.
12. Michael R. Bromwich (Independent Investigator), “Final Report of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room,” June 13, 2007, http://www.hplabinvestigation.org (accessed May 22, 2010), quotation at 5.
13. Simon A. Cole, “How Much Justice Can Technology Afford? The Impact of DNA Technology on Equal Criminal Justice,” Science and Public Policy 34, no. 2 (March 2007): 95–107, quotation at 95.
14. Michael Lynch, Simon A. Cole, Ruth McNally, and Kathleen Jordan, Truth Machine: The Contentious History of DNA Fingerprinting (Chicago: University of Chicago Press, 2008), 23.
2. The Network of U.S. DNA Data Banks
1. John M. Butler, Forensic DNA Typing (Burlington, MA: Elsevier, 2005), 445.
2. Stephen R. Reinhardt, Dissenting Opinion, United States v. Kincade, U.S. Court of Appeals, Ninth Circuit, No. 02-50380, D.C. No. CR-93-00714-RAG-01, filed August 18, 2004.
3. Federal Bureau of Investigation, CODIS Combined DNA Index System, http://www.fbi.gov/hq/lab/html/codisbrochure_text.htm (accessed April 19, 2010).
4. Dwight E. Adams, deputy assistant director, Laboratory Division, Federal Bureau of Investigation, “The FBI’s DNA Program,” testimony before the House Committee on Government Reform, Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations, June 12, 2001, Attachment A, http://www.fbi.gov/congress/congress01/dwight061201.htm (accessed February 9, 2007).
5. M. Dawn Herkenham, “Retention of Offender DNA Samples Necessary to Ensure and Monitor Quality of Forensic DNA Efforts: Appropriate Safeguards Exist to Protect DNA Samples from Misuse,” Journal of Law, Medicine and Ethics 34, no. 2 (Summer 2006): 380–384, at 380.
6. Dwight E. Adams, deputy assistant director, Laboratory Division, Federal Bureau of Investigation, “The FBI’s DNA Program,” testimony before the House Committee on Government Reform, Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations, June 12, 2001, http://www.fbi.gov/congress/congress01/dwight061201.htm (accessed April 19, 2010).
7. Herkenham, “Retention of Offender DNA Samples,” 382.
8. Butler, Forensic DNA Typing, 439.
9. Adams, “The FBI’s DNA Program.”
10. 42 U.S.C. 14135(a); see also Public Law No. 107-56 503, 115 Stat. 272, 364 (2001).
11. See 42 U.S.C. 14135(a)(1).
12. Justice for All Act, Title II, Section 203 (H.R. 5107, P.L. 108-405), http://www.ojp.usdoj.gov/ovc/publications/factshts/justforall/content.html (accessed May 23, 2010).
13. See “Combined DNA Index System,” http://en.wikipedia.org/wiki/Special:Search?search=Combined+DNA+Index+System%2C&go=Go (accessed April 17, 2010).
14. Public Law No. 109-162, Section 1004.
15. Department of Justice, “DNA-Sample Collection and Biological Evidence Preservation in the Federal Jurisdiction,” Federal Register 73, no. 238 (December 10, 2008): 74932–74943.
16. Ibid., 74935.
17. Department of Justice, “DNA-Sample Collection Under the DNA Fingerprint Act of 2005 and the Adam Walsh Child Protection and Safety Act of 2006 (Proposed Rule),” Federal Register 73, no. 76 (April 18, 2008): 21083–21087.
18. Ibid., 21084.
19. Ibid.
20. J. Luttman, FBI Laboratory, DNA Unit 1, Federal Convicted Offender Program, “Implementation of Database Expansion” (presentation for Annual CODIS Conference, Federal Bureau of Investigation, October 24, 2006).
21. Department of Justice, “DNA-Sample Collection Under the DNA Fingerprint Act of 2005,” 21084.
22. Ibid., 21087.
23. American Civil Liberties Union, “Comments on RIN 1105-AB24 Proposed Rule, DNA-Sample Collection Under the DNA Fingerprint Act of 2005 and the Adam Walsh Child Protection and Safety Act of 2006,” prepared by Caroline Fredrickson, Michael Macleod-Ball, Tania Simoncelli, and Michael Risher, May 19, 2008, http://www.aclu.org/racial-justice_prisoners-rights_drug-law-reform_immigrants-rights/aclu-comments-justice-department-r (accessed April 18, 2010).
24. Federal Bureau of Investigation, CODIS Bulletin, “Interim Plan for the Release of Information in the Event of a Partial Match at NDIS,” July 20, 2006, http://www.bioforensics.com/conference08/Familial_Searches/CODIS_Bulletin.pdf (accessed April 12, 2010).
25. Ibid., 1.
26. Susan Price Living
ston, “DNA Database of Convicted Felons,” OLR Research Report (December 20, 2002), http://www.cga.ct.gov/2002/olrdata/jud/rpt/2002-R-0984.htm (accessed August 4, 2008).
27. Steven Messner, “Comment: Law Enforcement DNA Database: Jeopardizing the Juvenile Justice System Under California’s Criminal DNA Collection Law,” LaVerne Law Review: Journal of Juvenile Law 28 (2007): 159–173, quotations at 172–173.
28. Haskell v. Brown, Class Action Complaint for Declaratory & Injunctive Relief (submitted on behalf of Plaintiffs), United States District Court for the Northern District of California, filed October 7, 2001, ¶ 6 (citing California Department of Justice).
29. American Civil Liberties Union of Northern California, “ACLU Lawsuit Challenges California’s Mandatory DNA Collection at Arrest,” October 7, 2009, http://www.aclunc.org/news/press_releases/aclu_lawsuit_challenges_california’s_mandatory_dna_collection_at_arrest.shtml?ht=dna%20dna (accessed April 18, 2010).
30. South Carolina General Assembly, 117th Session, 2007–2008, passed H.3304; ratified June 12, 2007. Under the bill, section 2, A. Section 23-3-620 of the 1976 Code of South Carolina would have been amended to read: “Section 23-3-620. (A) Following a lawful custodial arrest or a direct indictment for a felony offense or an offense that is punishable by a sentence of five years or more, either of which is committed in this State, the person arrested must provide a saliva or tissue sample from which DNA may be obtained for inclusion in the State DNA Database.” http://www.scstatehouse.gov/sess117_2007-2008/bills/3304.doc (accessed May 23, 2010).
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