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STRANDS OF JUSTICE Do DNA databanks infringe on defendants' rights? July 17, 1998 |
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Questions asked
in this forum:
If fingerprints are not invasions of privacy, why would DNA samples? Are they any constitutional problems with DNA evidence? Will DNA sampling result in genetic determinism? How much can we trust DNA evidence? Does DNA evidence favor the prosecution or the defense?
NewsHour Backgrounders
July 10, 1998:
Betty Anne Bowser reports on DNA identification and its impact on criminal investigations.
A state-by-state breakdown of legislation regarding DNA databanks.
Browse the NewsHour's coverage of law.
Outside Links
A speech by head of the FBI's Combined DNA Index.
Robert Fuller of Berkeley, CA, asks:
If taking DNA samples is an invasion of privacy, why isn't taking fingerprints? Less so, perhaps, but still potentially self-incriminating, and done not to everyone, but to felons, etc? Contrariwise, if fingerprints are okay, why not DNA?
Dr. Paul Ferrara of the Virginia Division of Forensic Sciences responds:
The distinction that is made to the collection of fingerprints vs. DNA lies in the amount of information that theoretically can be gleaned from a sample of one's DNA as opposed to a fingerprint. A set of fingerprints only serves to identify an individual and nothing more, whereas a DNA sample not only serves to identify the individual, but potentially also contains every bit of the genetic information that the individual inherited from his/her biological parents.
Having said that, it must be emphasized that the DNA locations used for forensic purposes are but an extremely minute fraction of the complete genome and are not known to code for any traits. Thus they really are no more informative about an individual than a fingerprint.
Mr. Barry Sheck of the Benjamin Cordozo Law School responds:
Mr. Fuller, you're reasoning is right on the money. DNA samples taken from convicted felons, or even individuals arrested for felonies should be treated just the way we treat fingerprints: it can be used for identification purposes only and the fingerprints (or DNA profiles) should be destroyed if the individual is ultimately exonerated. By statute, in most jurisdictions, an individual whose fingerprints were taken after arrest, or even after a conviction, gets those fingerprints removed from the system if the individual is ultimately exonerated. DNA profiles should be treated the same way.
Incidentally, the most difficult question these days involves post-conviction situations where, to prove someone innocent, one needs to get an elimination DNA sample from some third party. There is precedent for getting elimination fingerprints from third parties under such circumstances, and DNA samples should be treated the same way. The key factors here are: 1) the level of intrusion is minimal for obtaining the fingerprints and the DNA profile (a DNA profile can be obtained simply by swabbing the inside of someone's cheek with a q-tip); and 2) the results can only be used for law enforcement identification purposes and not stored in any databank or made accessible for any other purpose.
Mr. Benjamin Keehn, a Boston defense attorney, responds:
Taking DNA for inclusion in government-run data banks is different than taking fingerprints in two important respects, the first involving the reasons that are offered to justify the taking of the information in the first place, and the second involving what is done with that information once it has been obtained by the government. As to the first factor, even fingerprints may not be taken from an individual unless there is a specific, individualized reason for believing that that individual has committed a crime. For instance, in 1969, the Supreme Court considered a case in which the police, having a crime scene finger-print but no suspects, rounded up all of the young African-Americans in town, and made each of them give up a fingerprint exemplar. One set of fingerprints thus gathered matched the crime scene prints, and the individual from whom the matching prints were obtained, a 14 year old African-American named John Davis, was charged, convicted, and sentenced to life in prison for the crime. The Supreme Court ruled that John Davis's fingerprints had been illegally obtained, and reversed his conviction, because there was no good reason -- "probable cause" -for the police to have made him give up his fingerprints in the first place. DNA data bank laws are no different than the procedures used by the government against John Davis, except that the "at risk" group of "usual suspects" being rounded up for registration of personal data useful in crime investigation are -- at present -- prisoners and probationers, rather than African-Americans. But even prisoners and probationers should have a right not to be registered by the government simply because of their group status, unless in an individual case there is good reason for believing that a particular prisoner has committed a crime and that his DNA is likely to be useful in proving it, in which case the Constitution does nothing to prevent the government from obtaining that individual's DNA. As to the second factor, an individual's genetic data, once it has been obtained by the government, is capable of revealing vastly greater information about that person, both in quantity and quality, than can a simple fingerprint. Indeed, from a civil libertarian point of view, the beauty of fingerprints is that they are incapable of revealing anything about an individual other than his or her identity. DNA, on the other hand, literally defines who and what we are as individual human beings on the molecular level. Little could be more hostile to individual privacy concerns than governmental registration of an individual's genetic data.
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