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Forensic DNA Databanks in the USA Michael T. Risher. DNA databanks are computer databases containing the results of DNA analysis (DNA profiles), used to link evidence from a crime scene to a previously unknown suspect or to another crime scene. Co mbined D NA I ndex S ystem. Local (LDIS)
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DNA databanks are computer databases containing the results of DNA analysis (DNA profiles), used to link evidence from a crime scene to a previously unknown suspect or to another crime scene
Combined DNA Index System Local (LDIS) State (SDIS) National (NDIS) CODIS
CODIS-NDIS Convicted Offender Index Arrestee Index Forensic (Crime Scene) Index (Missing Person Index) (Missing Person Reference Index) (Population Index)
What’s In a CODIS Entry? DNA Profile – the “genetic fingerprint” Specimen Identifier Agency that submitted the profile Name of lab tech who analyzed sample
Each DNA profile consists of information taken from 26 sites on the subject’s DNA • 13 paired pieces of information
CODIS is Growing Fast 2000 2007 2010 June 2011 Offender Profiles 460,365 5,070,473 7,833,009 9,878,881 Forensic Profiles 22,484 194,785302,002 380,702 http://www.fbi.gov/hq/lab/codis/clickmap.htm
CODIS Creep Convicted of sex offenses or homicide (Cal. 1989) Convicted of violent felonies Convicted of any felony (Prop. 69: Nov. 2004) Convicted of misdemeanor Arrested for sex offenses and homicide Arrested for violent felonies Arrested for any felony (Prop. 69: Jan. 1, 2009) Detained Immigrants (2009) Arrested for anything (federal 2009) Universal databank?
The Fourth Amendment “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Warrantless searches “are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.” • Arizona v. Gant, 129 S. Ct. 1710, 1716 (2009)
DNA Sampling is a Search • Intrudes into the body. • Intrudes into informational privacy. • Each separate analysis of sample reveals more information and is a separate search.
Whose DNA is being Collected? • In 2006, of 534,460 felony arrests reported (includes multiple-offense arrests): • Violent offenses accounted for 23.6 percent (126,342). • Property offenses accounted for 27.1 percent (144,781). • Drug offenses accounted for 28.9 percent (154,468). • All other offenses accounted for 20.4 percent (108,869).
Challenges to Arrestee Testing(post-conviction testing settled) • Minn. Ct. of Appeals – struck down • Va. Supreme Court – upheld • USA v. Mitchell – just upheld • USA v. Pool – upheld, rehearing pending • Haskell v. Brown – appeal pending
Familial Searching • Effectively expands databank to include family members – guilt by bloodline • DNA databank is used to identify people who are by definition not the culprits • Leads to investigation and potential harassment of previously convicted people who are no longer committing crimes, and their families
Familial Searching– Treat like a wiretap • Should be governed by public, enforceable rules made by legislature, not informal guidelines developed by law enforcement • Only in very serious cases where other investigatory techniques have been exhausted • Court order or warrant • Reporting requirements – how many applications, orders, to what effect
A Lifetime of Genetic Surveilance • Hard to get removed, even if proved innocent • Being in the databank makes you more likely to be arrested in the future • You’ll get caught for the crimes you do commit, while people not the databank won’t • Maybe get accused of crimes you didn’t commit • Familial Searching
DNA contains personal information • Ancestry/Family Secrets • Predisposition to physical disease • Predisposition to mental illness? • Predisposition to alcoholism/addiction? • Sexual orientation? • Predictor of personality traits? • Predisposition to criminality?? XYY Even if these are baseless, DNA analysis may be wrongly used to predict behavior.
DNA Dragnets • Police seek samples from large numbers of people who live or work in the vicinity of the crime scene or fit a loose profile of the perpetrator. • Individuals are asked to “voluntarily” provide a DNA sample. • 19 known dragnets in U.S. • ~7,000 people
Mistakes have occurred… Lazaro Soto Lusson faced life in jail and was incarcerated for over a year before it was discovered that the Las Vegas police crime lab had switched his DNA sample with that of his cellmate. Josiah Sutton spent nearly five years in jail for a rape he did not commit. His conviction rested almost entirely on a DNA test performed and erroneously interpreted and reported by a Houston Crime Lab analyst.
Possible Exceptions • Search Incident to Arrest • Must relate to officer/jail security or preservation of evidence
Possible Exceptions • Special Needs • Primary Purpose must be something other than law enforcement. • Still requires balancing of special needs against privacy interests.
Possible Exceptions • General Balancing • Never applied to searches of persons other than persons convicted of felonies. • If police can take the genetic profile of people who are presumed innocent, simply based on arrest by single officer, what can’t they do? • Costs and benefits --
Does Expansion to Arrestees • Encourage pretextual arrests? • Aggravate racial disparities? • Aggravate testing backlogs? • Invade genetic privacy? • Invade bodily integrity? • Solve crimes? • Prevent crimes? • Affect innocent people?
Does Arrestee Testing Solve Crimes? • Everybody arrested will soon either be convicted (and give a sample) or not be convicted (in which case what’s the government’s interest in taking DNA from an innocent person?).
