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LAW ENFORCEMENT AND COLLECTION OF DNA
October 03, 2005
Law Enforcement Collection of DNA
By Ethan Ackerman
Technology & Marketing Law Blog: Law Enforcement Collection of DNA
Recent legislative activity in the US Senate has brought some press attention to the touchy issue of DNA collection by law enforcement. Similar proposed and passed DNA legislation at the state and federal levels over the last several years has also drawn court challenges. As a result, a fair number of court opinions on the subject exist - enough to allow a quick look at the legal contours and legislative status of DNA collection laws.
A quick background
Most every US state and territory has some sort of legislation regarding law enforcement collection of DNA from convicted criminals of one type or another. These laws, passed primarily to assist in identifying potential perpetrators of other, unsolved crimes, vary significantly from state to state. A comprehensive comparison can be found at DNAresource.com, which catalogs legislative information such as types of qualifying crimes, records purging procedures, applicability to probationers, etc. Despite the variability, almost every state shares at least some DNA information with a national, FBI-administered DNA database called CODIS.
Constitutional interests - Privacy and self-incrimination
The non-voluntary extraction of DNA from blood or tissue samples of a suspect or convict plausibly touches on 4th & 5th Amendment rights to be free of searches and self-incrimination, respectively. So how does the jurisprudence currently stand?
The 5th Amendment - not so applicable after all
DNA has quite a bit of evidentiary value, as a match or a dissimilarity with a suspect's DNA can tell whether there is a highly probable connection, or definitive non-match, to some other piece of evidence. The main 5th Amendment argument asserted against collection is that compelled production of such potentially damning, and highly personal, evidence amounts to a compelled 'testimony' against one's self.
This 5th Amendment interest has been rather definitively addressed, and it doesn't amount to much, according to the Supreme Court. More specifically, blood or tissue samples that may tend to show innocence or guilt (say, by matching blood at the scene or having more than the legal limit of alcohol in the blood) can be forcibly (so log as also humanely) collected, and doing so won't violate the 5th Amendment, according to the Supreme Court. In a case that obviously matters a lot to DUI attorneys, Schember v. California, the Supreme Court reiterated that the 5th Amendment protects against compelled testimony primarily in the spoken word sense. Blood tests weren't compelled "testimony," even if they were "compelled" in the sense that they were forcible, over protests. DNA seems to tell much more about a person than blood alcohol level, but while that may gather DNA more privacy protections, it doesn't seem to matter for 5th Amendment purposes, which are concerned mainly with whether spoken "testimony" is compelled.
The 4th Amendment - it applies, but the devil is in the details
The 4th Amendment protects against unreasonable searches and seizures, and most every case challenging a DNA collection has recognized that such compelled collection is a search or seizure. With almost equal uniformity, though, courts have found such a search - at least as applied to convicts or probationers/parolees - not unreasonable. A comprehensive and fairly recent report on these cases by the American Society of Law, Medicine & Ethics catalogs the legal theories in each case. Included in the report is a discussion of the 9th Circuit's 2004 en banc decision in US v. Kincade, discussed more below. While several federal circuit courts have addressed DNA collection laws, the 9th Circuit in Kincade is the only court to find one unconstitutional. Kincade's unconstitutionality ruling was only temporary, as the en banc court reversed the panel decision and barely found the federal DNA statute constitutional, in a 6-5 split. Because it is the only circuit decision to find a 4th Amendment failing in the federal statute, because the ultimate decision was en banc rather than just a panel (making it a close to a Supreme Court decision as anything out there,) and because the split was so close, Kincade is worth focusing on in more detail.
US v. Kincade
A 9th Circuit Court of Appeals panel found, 2-1, that the mandatory collection of DNA as a term of parole violated Thomas Kincade's 4th Amendment rights, a decision the en banc 9th Circuit reversed. Details and analysis can be found on findlaw, the informative EPIC page on the Kincade cases, or the actual en banc 9th circuit opinion.
It is worth noting reading at least one of the summaries, but the meat of the opinion is this: a 6-5 majority upheld the collection only because of the diminished privacy expectations probationers/parolees have, a distinction discussed more in the conclusion, below.
Criminal DNA collection laws can generally be classified into three 'waves,' with the third wave just starting to be proposed and pass in states and Congress. In the first wave, states passed laws mandating collection of DNA from violent or sexual offense criminals, and the creation and sharing DNA databases. At the federal level, this included a nationwide database, administered by the FBI, called CODIS. The 'second' wave was somewhat reactionary: in response to the perceived slanting of the technology and resources towards prosecution, legislation was passed mandating sharing of DNA information and samples with the accused, requiring timely analysis and providing funding to reduce backlogs, and making evidence available to the already convicted to assist in post-conviction claims of innocence. Such legislation is perhaps best exemplified by the Innocence Protection Act at the federal level. The "third' wave of DNA legislation has focused on extending the collection pool to arrestees, not just those tried and convicted of a crime, with the goal of making DNA collection much like fingerprinting.
California's prop. 69 and Senator Kyl's DNA Fingerprinting Act of 2005 are examples of recent 'third' wave legislation, though some states, such as Virginia, have gone beyond legislation and have already enacted laws.
Because it is the federal version of similar state 'third' wave legislation, and it expands the federal database and funding to arrestees, the DNA Fingerprinting Act of 2005 is worth a quick peek.
The DNA Fingerprinting Act of 2005
The DNA Fingerprinting Act of 2005 (S.1606) would, according to its author, Sen. John Kyl of Arizona, now allow DNA from state arrestees (not just convicts) to be included in CODIS, expand federal funding to state DNA collection programs for arrestees (not just convicts), and allow DNA collection from federal arrestees and detainees (not just convicts). Similar bills have passed the House of Representatives in the past, and, although it has opposed 'second wave' bills that arguably level access to DNA evidence, the current Administration apparently supports Sen. Kyl's bill.
Senate politics and bill passage
In addition to the expansion of state DNA collection powers, the Kyl bill allows anyone who is "arrested or detained under the authority of the United States" to DNA tested, not just convicted felons. This federal expansion, while nowhere near as big an expansion as allowing each state to expand collection, is likely to be the most contentious. Why? Immigration. The Kyl bill allows compulsory testing of any detained immigrants. While many may think of "detained" immigrants as just those caught at illegal border-crossing attempts, but, thanks to federal immigration law, even visiting foreign scholars in the visa application system may be considered detained at some points in processing. The immigration angle seems to be the first thing opponents (LEAHY cite) criticized, and depending on which version of the Kyl press release/editorial one looks at, the home-state-targeted one or the one on the Senator's senate webpage, illegal immigrants either are or are not mentioned as the target of the bill.
The Kyl bill's recent press has been primarily focused on its recent passage out of the Senate Judiciary Committee, and important procedural step on the path to enacted law. The bill was offered, over objections, as an amendment to S.1197, the reauthorization of VAWA, the Violence Against Women Act, itself a politically charged bill.
Some thoughts in conclusion
To some degree, legislators zealous expansion of criminal DNA collection flies in the face of oft-professed concern over personal privacy. The US Senate unanimously passed a genetic information privacy bill, extolling the sanctity of genetic information protection and warning against indiscriminate collection and discrimination. Yet at least some of these legislators are proposing to authorize large-scale collections of the same information in the name of crime fighting.
Aside from the constitutional concerns discussed below and immigration issues that make it a political hot potato, Sen. Kyl's bill also seems to be weak in how broadly it sweeps in permissible DNA collection. Far from expanding DNA collection to "just" the arrestees and detainees focused on above, the language of the bill technically allows states almost carte blanche to include DNA from any source. A state could pass a law allowing collection, not just for convicted offenses or at arrest, but at any reason - i.e. as a condition of getting a drivers license! The only limiting language for state collection grants in the bill is: states can only add DNA collected pursuant to "applicable legal authority" - which means, roughly, anything the state passes a law for.
Final Constitutional thoughts
So how would a bill such as the DNA Fingerprint Act of 2005 fare if it were passed into law? Arizona Senator Kyl is from the 9th Circuit, so lets look there. From Kincade, we already know that DNA testing turns heavily on the incarcerated/probationary status of the unwilling donor. Another 9th Circuit case, US v. Scott, held that pre-conviction arrestees can't be compelled to submit to drug testing as a condition of bail. This seems like the same population (the 'arrestees and detainees' described in the DNA Fingerprint Act) in the same circumstances (facing compelled tissue sampling) with the same 4th Amendment concerns. At least under 9th Circuit case law, it looks like the Kyl bill, and any similar California propositions, wouldn't hold up to a 4th Amendment challenge.
A contrary conclusion?
But wait a minute, aren't searches of a person incident to a lawfully executed arrest ok for 4th Amendment purposes? All these current DNA cases are about parolees or convicts, and are well after an arrest, in effect a new search. Why not routine DNA testing of an arrestee during booking, just like fingerprinting, which doesn't violate the 4th Amendment?
Even here, the Kyl bill doesn't limit collections to lawful arrestees, but rather speaks also of those (such as immigrants, or presumably also Guantanamo captives, or as-of-yet-unarrested suspects) who are "detained." The fingerprinting of those 'detained but not (or not yet) arrested' does present a 4th Amendment-violating seizure according to the US Supreme Court. Presumably the same logic would apply to DNA collection.
STATE CATALOGS DNA OF CRIMINALS ON PAROLE, PROBATION
By Margot Sanger-Katz
July 31. 2007 12:31AM
Concord Monitor - State catalogs DNA of criminals on parole, probation
The state Corrections Department has begun collecting DNA samples from violent criminals and sex offenders on parole or probation, in accordance with a new state law.
The department is already authorized to collect and store genetic information on prisoners who have committed violent or sexual crimes, but the new law enables them to do the same for prisoners under state supervision outside the prison. The genetic information will be placed in a national database that's accessible to police departments across the country.
The police can use the database when they are investigating crimes that have DNA evidence.
By comparing crime scene DNA with the database, the police can either locate a suspect or rule out the large number in the database.
"The department is now collecting DNA from those under supervision," Assistant Corrections Commissioner Les Dolecal said in a written statement.
Most states permit prison officials to collect genetic samples from convicts for use in the database, but they differ in what crimes make a prisoner eligible. The expansion of the law to include supervised offenders is in keeping with a national trend to widen the net of offenders who can be placed in the database, said Buzz Scherr, a professor at Franklin Pierce Law Center who studies the relationship between genetic science and privacy rights. Federal parolees are subject to a similar requirement.
The federal law and some state versions have been challenged in court, but they have mostly been upheld as constitutional, Scherr said. Courts have historically found that prisoners have a limited right to privacy and that the public interest in tracking their personal information outweighs that diminished interest.
Some states have gone further. Seven states have enacted and more than 20 have considered collecting DNA from suspects when they are arrested. Those laws may face tougher legal challenges because the courts treat arrestees differently from convicted offenders.
According to the Corrections Department, officials will take the samples by swabbing the inside of offenders' cheeks when they visit district offices. Samples will be sent to the state police crime lab for analysis.
DNA AND CRIMINAL LAW
by Australasian Legal Information Institute
A joint facility of UTS and UNSW Faculties of Law
DNA and Criminal Law -  HotTopics 1
The technique of ‘DNA fingerprinting’ or ‘DNA profiling’ was first developed in the mid-1980s, and is now an increasingly common tool used by law enforcement authorities. It is a form of identification testing, and is undertaken differently to other forms of genetic testing.
DNA profiling involves the creation of a profile from specific sites on the ‘non-coding’ or ‘junk’ sections of the DNA molecule (the parts of the DNA molecule that do not provide genetic information). While these sections of DNA are unique for each person, profiling techniques involve examination of only a small part of the 3.3 billion subunits. The number of sites (or loci) examined depends upon the system used – the most commonly used system in Australia is ‘Profiler Plus’, which examines nine loci. The greater the number of loci examined, the more reliable the test results.
When an offender has left any DNA samples at a crime scene (for example, in the form of blood, hair, sweat, semen or saliva), a forensic analyst will compare these samples with a DNA sample taken from a suspect – or a
DNA database – to find a match. If there is a match between the samples, the analyst will consider the statistical likelihood that the sample found at the crime scene could have come from someone other than the suspect or victim. This analysis will help focus further investigations, and may also be used as evidence at trial. DNA evidence is used not only in the investigation of recent crimes, but also in relation to past unsolved crimes. Samples taken from crime scenes and held in police files, in some cases for decades, may lead to identification of offenders or bodies (such as at the World Trade Centre, New York) using the new DNA identification technology. The establishment of DNA databases has increased the potential to identify offenders of past crimes (see below for more on DNA databases).
Providing DNA Samples
While DNA technology can be an effective tool for crimefighters, its use may also involve curtailing the civil liberties of individuals. Each State and Territory, and the Commonwealth in relation to federal offences, has legislation regulating the taking of forensic samples for investigative purposes (including for DNA testing). Such legislation attempts to strike a balance between the protection of individual rights and society’s law enforcement needs. In NSW, the relevant legislation is the Crimes (Forensic Procedures) Act 2000 (NSW), which regulates police powers to perform forensic procedures on suspects, offenders and volunteers. The legislation is based on (although not identical to) model legislation developed by the Model Criminal Code Officers Committee (MCCOC).
Under the Act, a forensic procedure (taking of a sample from the body) may be carried out on:
Samples are likely to be taken from volunteers where the person is a victim of a crime, a relative of a missing person, or a person participating in a mass population screening. Samples from suspects could provide additional evidence against the person, or assist to eliminate them as suspects in the investigation. Samples from convicted offenders may be used in a similar way to those of a suspect, or as part of a DNA database.
After passage of the forensic procedures legislation in 2000, a program of testing serious offenders in prison was undertaken in NSW. By August 2001, forensic procedures were conducted in accordance with the legislation on 5627 prisoners. The vast majority of samples were taken by buccal swab with the consent of the prisoner. There have been allegations, however, that some prisoners have felt intimidated into consenting by the threat of loss of privileges, reclassification of security status, the use of physical restraints, and other forms of harassment.
In February 2002, after 18 months of operation, the NSW Legislative Council Standing Committee on Law and Justice reported on the Crimes (Forensic Procedures) Act 2000 (NSW), and in particular its social and legal implications. It made a number of recommendations for change to the legislation and the way in which it is implemented, including clarification of the volunteer consent procedures, and allowing mature children to provide consent themselves. The Act will also be reviewed by the NSW Attorney-General’s Department and the NSW Ombudsman.
Storage Of Samples And DNA Databases
The NSW legislation requires forensic samples to be destroyed after a certain event or period of time, such as when a suspect is acquitted (no longer considered a suspect or found ‘not guilty’ at trial); the trial proceedings are discontinued; a year has elapsed since taking the sample and no proceedings have been commenced; or a prisoner’s conviction is quashed.
This leaves a number of samples which can be retained for some time, or perhaps even indefinitely – in particular, the samples of convicted offenders, and samples from volunteers who have agreed to retention (for a certain period of time or indefinitely). A DNA profile is made from the sample. While the sample and the identity of the person to whom it relates is stored at the laboratory where the sample was analysed, the DNA profile is added to a DNA database and may be used for future investigative matching purposes. The ways in which it can be used will depend upon the index to which the profile is assigned – indexes in NSW include a missing persons index; offenders index; suspects index; unknown deceased persons index; volunteers (limited purposes) index; and a volunteers (unlimited purposes) index.
Comparison of profiles on the database can be used to link one crime scene to another, or an offender or suspect to a crime scene. For example, a link between an offender or suspect and a crime scene is known as a ‘cold hit’, because it allows the police to ‘identify’ a suspect by his or her DNA profile alone where there are no other leads available in the case. Therefore, the database potentially allows police to solve a number of unsolved crimes.
At the federal level, a national DNA database system known as the National Criminal Investigation DNA Database (NCIDD) has been established. It is operated by the federal government agency known as CrimTrac. Once it is fully operational, the database will contain DNA profiles from each of the participating States and Territories. Profiles will be shared between jurisdictions once information-sharing agreements have been finalised. All DNA profiles held in NSW databases will be available on the national database system. However, they will only be shared with jurisdictions that provide similar protections to individuals as those provided under NSW legislation.
DNA As Evidence
DNA evidence may be offered in criminal proceedings by either the prosecution or the defence. The prosecution may indicate a match between a DNA sample found at the crime scene or on the victim and one taken from the defendant, and give statistical evidence of the improbability that the sample taken from the crime scene or victim could have come from any person other than the defendant. The defence may seek to rely on DNA evidence to eliminate him or her from suspicion. As with all evidence, there are questions about the reliability and accuracy of the evidence, and whether a particular piece of evidence is admissible in the proceedings. In NSW, evidence derived from forensic samples that are not taken in accordance with the Crimes (Forensic Procedures) Act 2000 (NSW) is not admissible in court.
DNA evidence is scientific expert evidence which requires interpretation – this leaves open the possibility of error or exaggeration. While techniques of DNA testing have become more sophisticated and more accurate, there are still issues regarding the reliability of past and current testing techniques, the possibility of contamination (accidental or otherwise) of samples, and the qualifications of the person interpreting the results of the tests and providing evidence in court. There has been one Australian case in which a forensic laboratory’s omission to analyse certain DNA samples taken from the crime scene contributed to a wrongful conviction – it was only after the defence lawyer insisted the DNA samples be analysed that it was shown the convicted man should have been excluded as a suspect in the case (see the case R v Button, an unreported case from the Queensland Court of Appeal, 10 April 2001).
There has also been one reported case of an incorrect match between a DNA sample found at a burglary scene and a person whose DNA profile had been stored on the United Kingdom national DNA database. The accused man was charged, despite the fact that he had an alibi, lived 200 miles from the crime scene, was suffering from advanced Parkinson’s disease and could not drive. The incorrect match was said to have a probability of one in 37 million. The charges were withdrawn when a more reliable test (examining ten loci rather than the original six) excluded him as a suspect.
A number of concerns have been raised about equal access to DNA testing by the defendants in criminal proceedings. These concerns are related to the cost of obtaining testing, as well as the inability of a defendant to require witnesses to provide samples. There is also an issue regarding the level of knowledge and understanding of DNA evidence held by the legal representative for the defendant, and his or her ability to scrutinise the expert scientific evidence.
Access to DNA analysis may also be important for those who have been convicted of criminal offences, but who wish to establish their innocence. Individuals who were previously convicted on the basis of an outdated DNA analysis may now wish to have those samples retested or analysed with more sophisticated technology. Alternatively, individuals who did not have access to DNA analysis at the time of conviction may now wish to undergo testing.
In the United States a number of convicted criminals have been able to have their convictions quashed on the basis of DNA evidence proving their innocence, including over 100 who have been on death row awaiting capital punishment. Many of these cases have been investigated by university students or other volunteers involved in ‘innocence projects’, which are specifically focused on assisting wrongfully convicted persons to prove their innocence. In Australia, innocence projects have been established within the law schools at the University of Technology Sydney and Griffith University, with a focus on persons within New South Wales and Queensland respectively, although the projects are in early stages of development.
The NSW government has established an Innocence Panel to consider applications by NSW prisoners for access to DNA evidence for use in their appeals against conviction. The panel is expected to commence operation some time in 2002. It is not clear whether the NSW government intends to provide funding for legal representation during the process.
MASS POPULATION SCREENING
Police in a number of countries have used DNA identification techniques in conjunction with mass population screening. DNA mass population screening occurs where an entire class of individuals in an area undertakes voluntary DNA sampling to identify the offender in a criminal investigation.
One of the first uses of mass population screening was in the United Kingdom in 1987, in what became known as the “Pitchfork” case. Police collected blood samples from over 5000 local men to identify the perpetrator of two rape-murders. The actual offender had persuaded a friend to provide a blood sample on his behalf. The friend later reported this to police and the offender was identified.
In April 2000, a mass population screening program was used in an attempt to identify the person responsible for the sexual assault of an elderly woman in the NSW rural town of Wee Waa. The entire male population of the town between the ages of 18 and 45 years was asked to volunteer DNA samples in order to identify the offender. Within the community, there was a reaction of outrage towards the crime, and most of the 600 men in the town volunteered their samples. The offender gave his sample voluntarily, but confessed before the sample was analysed. The technique has also been used by Australian investigators on a smaller scale to eliminate certain suspects from an investigation.
While this can be an effective way of excluding the innocent from suspicion at an early stage of a criminal investigation, it raises concerns of the possible undermining of the right to silence and the privilege against self-incrimination – important protections for suspects in a criminal process. In practice, individuals may come under strong suspicion unless they can prove by DNA analysis that they were not involved in an offence.
There are also concerns about how volunteered samples are handled after completion of an investigation. In the case of the samples taken at Wee Waa, they were destroyed. The requirement to destroy a volunteer’s sample varies according to legislation in place in the particular State or Territory.
California voters approve an aggressive DNA-collection program
What every law enforcement officer should know about DNA evidence
DNA and Criminal Law in Australia
DNA Testing for U.S. Immigration
Statutes and Case Law on Forensic DNA
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