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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.
Jerry Johnson of Salem, OR, asks:
One of the arguments given against using DNA testing of criminals is that eventually others who may be considered a risk to society because of their so-called genetic propensity to crime will be tested. Is that not based on the false assumption of genetic determinism?
Dr. Paul Ferrara of the Virginia Division of Forensic Sciences responds:
Yes, exactly. It assumes a genetic predisposition to,e.g., commit violent crime and further assumes that the DNA profile developed for forensic purposes includes that specific inherited gene. In fact, the genetic locations used for forensic purposes are not known to code for any trait.
Mr. Barry Sheck of the Benjamin Cordozo Law School responds:
I agree with you that there are many who falsely assume that genetic traits can determine or even greatly influence behavior, particularly sexually aggressive or violent behavior. Such research will probably be funded by some law enforcement agency.
But since I believe, and I think most geneticists believe that the genetic basis of behavior is multi-factoral, all such research must be approached with great caution and the DNA databanks that are being compiled now for purposes of identification in criminal cases must not, under any circumstances, be used for such research. Another set of samples must collected for the new research with the informed consent of the persons from whom it was taken.
Mr. Benjamin Keehn, a Boston defense attorney, responds:
The hunt is already on for the "crime gene." Whether it exists or not -- and nobody yet knows -the process of searching for it may well be the path to totalitarianism. In Massachusetts, for instance, enactment of the DNA registration law was preceded by legislation directing the Department of Correction -- the agency that runs the state's prison system -- to "conduct a study into the biological causes of crime based on the premise that scientists have been studying biological risk factors which they believe predispose individuals to criminal behavior." A geneticist who testified in favor of the data bank legislation stated that such laws are useful for purposes other than law enforcement "including immigration and paternity testing," and that, as data banks grow, they can "become useful research tools in a number of areas in medical sciences, genetics and population sciences." The DNA data bank law that was later passed, and that I am now challenging, specifically authorizes the State Police, who are to run the data bank, to disseminate the genetic data on file to "authorized persons and organizations ... for advancing ... humanitarian purposes." Who may qualify as "authorized" to receive genetic data from the data bank and what constitutes "humanitarian" genetic research is left entirely in the hands of the State Police. Furthermore, the Massachusetts law, like every law that I am aware of around the country, does not require that the human beings from whom the genetic material was originally seized even know about, much less consent to, the dissemination of their genetic information to third parties. Is this different, in principle, than the human experimentation conducted on "at risk" groups in Europe in the 1930s and 40s, which formed part of our Nation's rationale for entering World War II?
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