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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
An article on the FBI's Combined DNA Index (CODIS).
A speech by head of the FBI's Combined DNA Index.
Thomas L. Smithson of Escanaba, MI, asks:
Since DNA evidence, like blood types, handwriting exemplars, and fingerprints, is non-testimonial in nature, is there any substantive objection to gathering the data (to solve, to convict, and to exonerate) from a strictly criminal law perspective? Is the constitutional objection based solely upon other uses (privacy, insurability, health screening, genetic whatever?)?
Dr. Paul Ferrara of the Virginia Division of Forensic Sciences responds:
There is no real objection to collecting a DNA sample from a suspect(s) in a particular crime, where the police can establish probable cause to believe the person(s) charged may have committed the crime. It is the blanket collection of samples from a large segment of a population that brings objections.
Typically, the constitutional challenges to the collection of DNA samples from, e.g., some class of felons are based on the allegation of violation of 4th Amendment protections against illegal search and seizure; i.e., the state wants a sample of DNA without probable cause to believe that the individual has committed a crime. Instead the state wants a sample on the basis that an individual might commit a crime in the future. Recidivism studies have established that nexus.
Mr. Barry Sheck of the Benjamin Cordozo Law School responds:
I agree with the thrust of your question. The constitutional objections arise not from the taking of the DNA samples (the intrusion is minimal, just a swabbing of the inside of one's cheek) but from the potential uses of the DNA.
A limited use for forensic identification purposes only in a particular case requires less of a predicate to be a "reasonable" search and seizure under the 4th Amendment than a more expansive use of the DNA for health screening, insurability (looking at genes that may show a susceptibility to serious illness) or other research purposes. The cutting edge of the constitutional analysis should turn on the use of the DNA evidence and the extent to which third parties have access to the information generated from the analysis of the DNA sample.
Mr. Benjamin Keehn, a Boston defense attorney, responds:
There is no constitutional problem in gathering DNA from criminal suspects on an individualized, case-by-case basis: If the police have probable cause to believe that a particular person has committed a crime and that DNA will help solve that crime, the law fully authorizes its seizure. For the reasons discussed in the answer to the previous question, however, there is a distinct constitutional objection to DNA data bank laws, separate and apart from the threat to individual privacy generated by the government's possession of genetic information. That objection is based on the fact that, by mandating invasive searches and seizures of entire groups of people, not on the basis of any individualized suspicion but rather on the supposition that, as a statistical matter, the entire group is "at risk" of future criminal behavior, DNA registration laws fundamentally alter the historic constitutional relationship between government and its people, which is premised on the principle that the individual has the right to be let alone unless government can articulate a specific reason for believing that that particular individual poses a particular threat.
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