Forensic DNA Analysis: Issues

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US. Departmentof Justice Officeof JusticeProgmm Bureau of Justice Sta!ktics U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics Steven D. Dillingham, Ph.D. Director

Acknowledgments. This report was prepared by SEARCH Group, Inc., Gary L. Bush, Chairman, and Gary R. Cooper, Executive Director. The project director was Sheila J. Barton, Director, Law and Policy Program. This report was written by Robert R. Belair, SEARCH General Counsel, with assistance from Robert L. Marx, System Specialist, and Judith A. Ryder, Director, Corporate Communications. Special thanks are extended to Dr. Paul Ferrara, Director, Bureau of Forensic Science, Commonwealth of Virginia. The federal project monitor was Carol G. Kaplan, Chief, Federal Statistics and Information Policy Branch, Bureau of Justice Statistics. Report of work performed under B JS Grant No. 87-B J-CX-K079, awarded to SEARCH Group, Inc., 73 11 Greenhaven Drive, Suite 145, Sacramento, California 95831. Contents of this document do not necessarily reflect the views, policies or legal analyses of the Bureau of Justice Statistics or the U.S. Department of Justice.

The U.S. Department of Justice authorizes any person to reproduce, publish, translate or otherwise use all or any part of the copyrighted material in this publication with the exception of those items indicating that they are copyrighted or reprinted by any source other than SEARCH Group, Inc.

The Assistant Attorney General, Office of Justice Programs, coordinates the activities of the following program offices and bureaus: the Bureau of Justice Statistics, National Institute of Justice, Bureau of Justice Assistance, Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime. Forum on Criminal Justice Uses of DNA -Participants -

W. Gray Buckley Dr. Henry Lee Inspector Director Colorado Bureau of Investigation Forensic Science Laboratory Connecticut State Police Gary L. Bush Senior Policy Advisor Karen McDonald Information Services Branch Director Kentucky State Police Criminal Justice Information Systems Bureau of Criminal Apprehension James Dempsey Minnesota Department of Public Safety Assistant Counsel to the House Judiciary's Subcommittee on Civil Catherine M. Russell and Constitutional Rights Counsel Offrce of U. S. Rep. Don Edwards Subcommittee on Technology and Law Ofjice of U.S. Sen. Patrick Leahy Dr. Paul Ferrara Director Prof. George Trubow Virginia Bureau of Forensic Science Director Centerfor Informatics Law Jill D. Friedman The John Marshall School of Law Counsel U.S. Senate Judiciary Committee John K. Winkler, Jr. Subcommittee on Technology and the Law Senior Vice President Lifecodes Corporation Wayne A. Garrett Assistant Director Fred Wynbrandt Bureau of Criminal Investigation Assistant Director Virginia State Police Criminal Identijication and IMormation California Department of Justice Janlori Goldman StaffAttorney SEARCH Group Staff Project on Privacy and Technology Sheila J. Barton American Civil Liberties Union Director, Law and Policy Program

Richard N. Harris Robert R. Belair Director former) General Counsel Virginia Department of Criminal Justice Services Robert L. Marx M. Dawn Herkenham System Specialist Counsel New York Division of Criminal Justice Services Bureau of Justice Statistics Staff Carol G. Kaplan John W. Hicks Chief, Information Policy Branch Deputy Assistant Director FBI Laboratory, Washington,D.C.

iii Table of Contents

Introduction 1

I. DNA Testing Methods and Use 3 DNA and Its Potential for Identification 3 DNA Testing Methodologies 4 -Restriction Fragment Length Polymorphism 5 -Polymerase Chain Reaction-based Techniques 6 Allele-Specific OligonucleotideProbes 6 Amplification Fragment Length Polymorphism 7 Functions of DNA Testing 7 -Paternity Determinations 7 -Identif~ationof Suspects 7 Forensic Limitations of DNA Testing 8 -Infancy of DNA Databanks 8 -Private versus Government Laboratories 9 -Funding 10

11. Issues Regarding DNA Testing 11 lnvasiveness 11 -Obtaining DNA Specimens From a Suspect 11 "Dragnet" Testing Impermissible 12 Particularized Suspicion May Be Adequate 13 More Stringent Standard for DNA Searches? 13 -Obtaining DNA Specimens for Databank Purposes 14 Administrative Searches Judged Using Rational Basis Test 14 Blood Sample Searches Often Judged Using Compelling State Interest Test 15 Blood Testsfor DNA Databank Purposes Likly to be Held Constitutional 15 -Issues Associated with DNA Testing 16 Blood Testsfor Suspects or Offenders 16 Universal DNAIBlood Testing Program 17 Reliability 17 -Scientists Claim Reliability 17 -Courts Accept Reliability 18 Frye Test 18 Relevancy Test 18 DNA Test Results Admitted as Evidence 19 -CriminalJustice Officials Endorse Reliability 20 -Problems in Admitting DNA Test Results in Court 21 Adequacy of Population Studies 21 Adequacy of Testing Methods 22 Human Error in Interpreting Test Results 23 Alleged Unfairness to Criminal Defendants 23 Lack of Standards 24 Establishment and Use of DNA Databanks 25 -Law Enforcement Use 25 Relevance of Fingerprint Databank Case Law 26 Maintaining a Databank on Non-Arrestees 26 -National Population Register 27 -Genetic Redlining 27 -Management and Regulation 28 Dissemination of DNA Test Data 28 -Use of DNA Data for Criminal Justice Purposes 28 -Use of DNA Data as a Basis for Probable Cause 29 -Use of Non-Offender DNA Data 29 -Use of DNA Data for Noncriminal Justice Purposes 30 -General Dissemination Policy Issues 30 Conclusion 32

Introduction

Hailed by many as the "most sig- Forensic DNA Analysis and Issues The report cites the responses of nificant breakthrough ...since finger- focuses primarily on the privacy and scientists and judicial and criminal printing" and the "greatest advance ... confidentiality issues raised by DNA justice officials to the question of since the advent of cross-examina- testing for identification purposes. DNA testing's reliability, and tion," DNA analysis has dramatically The report consists of two sections. examines some potential problems altered the work of law enforcement, Part One, DNA Testing Methods and associated with submitting DNA test the courts and forensic scientists in Use, provides a brief and general results as evidence in court. These only six short years. DNA - description of the underlying science challenges include the adequacy of deoxyribonucleic acid -is the basic associated with forensic DNA testing. population studies and testing genetic material within each living This section reviews methodologies methods, the role of human error in cell that determines a person's indi- for identifying the distinctive patterns interpreting test results, alleged vidual characteristics. Since the early found in an individual's genetic unfairness to criminal defendants and 1980s,DNA testing has been used in material, and discusses two major the lack of standards. AIDS and genetic disease research, functions of DNA testing: paternity Part Two also considers law bone marrow transplants, and in an- determination and suspect enforcement's use of DNA databanks thropological investigations. l In identification. Finally, this section and the relevance of fingerprint forensics, DNA testing is typically outlines a few of the difficulties and databank case law and the used to identify individuals, using limitations confronting justice maintenance of non-arrestee only small samples of body fluids or agencies interested in establishing databanks. It also discusses questions tissue -such as blood, semen or hair DNA testing capabilities including the relating to a DNA databank as a -left at a crime scene. infancy of DNA databanks, the national population register, the threat This new technology raises scarcity of government laboratories of genetic redlining and problems profound issues and complex and the lack of funding. associated with managing and questions, the answers to which effect Part Two, Issues Regarding DNA regulating such databanks. all of society. Criminal justice Testing, identifies four broad and Finally, Part Two discusses the practitioners are considering the somewhat controversial topics - practice of disseminating DNA test complexities of obtaining DNA invasiveness, reliability, establishment data for both criminal and samples from suspects; establishing and use of databanks and noncriminal justice purposes; its use properly equipped and expertly dissemination of DNA test data - as a basis for probable cause; and the staffed laboratories; developing with which criminal justice distribution of non-offender DNA national standards for quality practitioners are beginning to data. The report concludes by noting assurance; submitting DNA as struggle. This section of the report that DNA testing's tremendous evidence in court; and creating DNA analyzes questions raised when bodily potential for use in a law enforcement profile databanks. fluids or tissue are taken from an setting must be balanced with privacy individual for identification purposes considerations. or to build a databank. It discusses developments in the Federal and State courts and in State legislatures, and examines the consistency of DNA testing with prevailing practices.

Harold M. Schrneck, Jr., "New Test That Finds Hidden AIDS Virus is a Sleuth with Value in Many Fields."New York Times,June 21, 1988, Medical Science Page.

Forensic DNA Analysis and Issues Page 1 Forensic DNA Analysis and Issues relies upon numerous source documents and resource personnel. This report originated in June of 1989 when SEARCH Group, Inc. submitted a report to the Bureau of Justice Statistics, United States Department of Justice, titled "Legal and Policy Issues Relating to Biomenic Identification Technologies." This report relies in some measure upon that prior research. Subsequent to completing the June 1989 report, additional research was conducted to account for the many developments that occurred between June 1989 and January 1991. The analysis throughout the report attempts to reflect the reasoning of the case law reported to that date and does not speak of authoritative writings or case decisions which may have been issued since that time. Additionally, on November 7, 1989, the Bureau of Justice Statistics and SEARCH sponsored a workshop, the Forum on Criminal Justice Uses of DNA, which brought together forensic scientists, lawyers, scholars and criminal justice officials who are currently involved in this complex new technology, as well as congressional staff members. These DNA experts reviewed and discussed an early draft of the report and many of their com- ments and suggested changes are re- flected in the final report. The research in this report is current to August 1990. Because DNA analysis is a rapidly changing area, both technologically and legally, this report should be viewed as background information rather than an up-to-the-minute analysis of the subject.

Page 2 Forensic DNA Analysis and Issues Part I DNA Testing Methods And Use

The analysis of DNA, while not identified as having a genetic requiring exotic equipment, is function, but very little was known nevertheless a highly advanced about its three-dimensional, molecular scientific process. Its proper structure. Finally, in 1953Francis application, particularly for forensic Crick and James Watson formulated a purposes, requires skill and model of the DNA molecule as a self- appropriate judgment. A brief and complementary, double helix? This very general discussion of forensic structure provided "the highroad to DNA testing -a methodology for understanding how the genetic comparing the similarities and material f~nctions,"~explaining how differences between one person's genetic information is stored and self- DNA and that of another person - replicates. The discovery initiated a inevitably Puns the risk of being virtual revolution in the study of superficial. An overview of the molecular biology and genetics. science and the technology employed, however, is necessary to provide a context for understanding the legal and policy implications of forensic DNA testing. DNA and Its Potential for The structure was described in J.D. Watson and F.H.C. Crick. "Molecular Identification Structure of Nucleic Acids: A Structure In 1865 Gregor Mendel formulated for Deoxyribose Nucleic Acid" Nature the basic theoretical principles of 171 (April 25.1953): 737-738. The genetics when, through his famous chemical composition of DNA includes cross-breeding experiments with peas, four building blocks, called nuclwtides: he concluded that organisms carry and Adenine (A). Guanine (G). Cytosine (C), transmit to their offspring hereditary and Thymine (T). The A, G. C and T elements, or genes. It was not until nuclwtides are paired in a complementary. double strand structure, the turn of the century, however, that held together in a zipper- or ladder-like genetics became an important area of Figure 1 fashion by hydrogen bonds. The The Replication of DNA biological research and scientists nucleotide A always pairs with T, and G recognized the existence of pairs only with C. Thus a fragment of deoxyribonucleic acid (DNA) and its double-stranded DNA might be almost exclusive location within the represented by the following sequence: chromo~orne.~By 1944, DNA was AGCGGCTTCACCTATT TCGCCGAAGTGGATAA

See also James D. Watson, Molecular Chromosomes are thread-like bodies Biology of the Gene,3d ed. (New York: made up of strands of DNA and proteins, W.A. Benjamin. Inc. 1977) and Anna C. found within the nucleus of the cells of all Pai. Foundations of Genetics: A Science living organisms. See Gunther S. Stent, for Society (New York: McGraw-Hill "The DNA Double Helix and the Rise of Book Company, 1973). Molecular Biology," Introduction to The Double Helix by James D. Watson. A Stent, "The DNA Double Helix," note 2, Norton Critical Edition (New York: W. p. xviii. W. Norton and Company, 1980).

Forensic DNA Analysis and Issues Page 3 Advances in recombinant DNA percentage of DNA in a cell will be DNA Testing techniques5 in the early 1970s common to the species. Nevertheless, Methodologies provided the basis for analyzing the each individual (with the exception of DNA testing includes two major DNA of individuals for identification identical twins) has DNA strands that components when used for forensic purposes. Scientists understood that are unique to that person? In the purposes. The first involves the the cells of each species contain the early 1980s a geneticist at Britain's molecular biological techniques that same number of chromosomes (all Leicester University, Alec Jeffreys, allow analysts to directly examine a genetically normal human beings, for developed a technique of "DNA DNA sample. The second component example, have 46 chromosomes in fingerprinting," a practical test for has to do with population genetics - each body cell, half of which are identifying these variable strands of how to interpret DNA tests to inherited from each parent) and that DNA for the purpose of identifying an calculate the degree to which different within a single organism, the DNA of individual. This technique was samples are asmkt%g.Such each cell is identical (with the first applied in an immigration1 population studies help to determine exception of the sperm and ovum). paternity case, and then to a the results of the analytical work. Any one cell, therefore, could provide celebrated crime in~esti~ation.~ This section seeks to describe the a match with another cell from the analytical processes used to directly same person. DNA found in human examine the DNA sample. hair follicles, for example, will be There are estimated to be over 3billion nucleotides in the human chromosome, DNA tests investigate and analyze identical to DNA found in blood or the structure and inheritance patterns tissue of the same person. and large quantities of nucleotides in a DNA molecule are the same for each of DNA. Many methodologies exist, In contrast to comparing the DNA person. Certain segments of nucleotides and new ones are constantly being de- taken from the hair and blood of the in a DNA sequence, however, vary greatly veloped. The particular test used will same person, a more difficult task was from one individual to another, repeating depend on the quantity and quality of comparing the similarities and themselves over and over again. The the sample, the objective of the test differences between one person's function of these short sequences of and the preferences of the laboratory DNA and that of another person. nucleotides, called tandem repeats, is not conducting the procedure. All tests, Since similarities among humans far understood. Nevertheless, their variable however, are designed to isolate cer- outnumber differences, the vast nature, or polymorphism, allows them to be used to distinguish identity. tain nucleotide sequences -the polymorphic segments of the DNA William C. Thompson and Simon Ford, molecule carrying marked, recurring "DNA Typing: Promising Forensic distinctions-and these variable Recombiit DNA technology refers to Technique Needs Additional Validation," segments provide the basis for dis- procedures in which a new DNA molecule Trial (September 1988): 56. Also see A.J. criminating among individuals' DNA. is formed through the union of different Jeffreys, V. Wilson and S.L. Thein, DNA molecules. This technology also "Individual-specific 'Fingerprints' of refers to genetic engineering wherein Human DNA." 316 Nature (July 4, 1985): DNA molecules are cut and spliced into 76-79. new configurations. See U.S. Congress, Office of Technology Assessmenf For a nonfiction account of the 1983-86 Genetic Witness:Forensic Uses of DNA rapelmurder case in Leicester County, Tests,OTA-BA-438 (Washington, D.C.: England, see Joseph Wambaugh, The U.S. Government Printing Office, July Blooding. Perigord Press (New York: 1990) p. 184, and William C. Thompson William Morrow and Company, 1989). In and Simon Ford. "DNA Typing: another case. on November 13.1987. the Acceptance and Weight of the New Bristol Crown Court (England) became Genetic Identification Tests," Virginia the first in the world to convict on DNA Law Review 75 (February 1989): p. 61, evidence when it sentenced Robert Melias in First Genetic Fingerprinting," note 73. to eight years in jail for rape. See Reuters November 13,1987. (London), "British Court Convicts Rapist

Page 4 ForensicDNA Analy~:is and Issues In a forensic environment, two will cut the DNA strands at the same charge, which is determined by its common analytical methods used to nucleotide sequence (restriction site) length and molecular weight.10 Thus, detect the polymorphic DNA in each time.9 For example, REs Hae I11 fragments of the same length and human samples are Restriction recognizes the nucleotide sequence weight will travel the same distance Fragment Length Polymorphism GGCC and makes a cut between the but large DNA fragments will move (RFLP) and Polymerase Chain G and the C. By cutting a person's more slowly than smaller fragments. Reaction (PCR)-based techniques. DNA in the same place, the several This process sorts the DNA into bands The RFLP method identifies alternate forms (alleles) of a gene are based on length and weight and these fragments of the DNA chain which separated from each other. A specific length-dependent bands are the basis contain the polymorphic segments, allele will be of the same size and for DNA identification. produces a DNA "print" of the molecular weight as others of its type. After electrophoresis, the next step fragments, and measures the fragment The polymorphism, or individuality, cdls for transferring the DNA. lengths. The PCR-based methods of a person will be detected on the fragments in the gel to a nylon seek to determine the presence of basis of differences in DNA fragment membrane. In a technique called specific alleles (alternative forms of lengths. "Southern Blotting," a chemical genes which occur in different At this point in the process, all of reagent (such as sodium hydroxide) individuals), thus indicating specific the DNA fragments are mixed acts as a transfer solution and a means genetic characteristics. together. Using a technique called to separate the double-strand electrophoresis, the polymorphic fragments into single-strand -Restriction Fragment Length ftagments are separated by length. fragments. Using the zipper analogy, Polymorphism The DNA is placed at one end of a the strands are unzipped, exposing the Restriction Fragment Length plate containing agarose gel, with a A, T, C and G building blocks. The Polymorphism (RFLP) requires the positive electrode placed at the other unzipped DNA fragments are now presence of as little as 50 to 100 end. DNA carries a negative fixed on the nylon membrane, where nanograms of DNA -an amount of electrical charge, therefore the DNA they are exposed to radioactive DNA DNA that may be present in a single will move toward the positive probes -laboratory-developed (thus, hair follicle. The distinct stages in electrode. The distance that an known sequences), DNA nucleotide developing a DNA "print" using individual fragment of DNA travels fragments which cany a radioactive RFLP will be portrayed here by depends on the amount of its electrical "marker." The probes seek out the describing the analysis of a blood sequence that they match and attach sample. themselves to the complementary split First, white cells containing the DNA are separated from the blood sample by use of a centrifuge, and the cells are ruptured to extract the DNA strands. The DNA strands are then 9 Using a restriction enzyme is the first cut, or digested, using restriction step in establishing a DNA print based on endonucleuses (REs) -enzymes size polymorphism. The DNA pattern derived from bacteria that catalyze the revealed depends on the specific loThe distance traveled also depends on cutting process. A particular enzyme restriction enzyme employed, in the the consistency of the gel, the temperature absence of a standard enzymelprobes and humidity of the laboratory, and other system, individual laboratories may use experimental conditions. In cases where different enzymes and thus patterns the two samples are tested simultaneously, developed at different laboratories may many of these factors "cancel out," but in not be comparable. Most public forensic other cases special care must be taken to laboratories, however, are using the Hae assure consistent experimental conditions. ID restriction enzyme and associated and to quantify the effect of minor probes. differences in these conditions.

Forensic DNA Analysis and Issues Page 5 DNA strands. A split strand of A T T when the available amount of DNA same trait or characteristic and G C A, for example, will bind with T material is insufficient for proper occupying a given locus on a AACGT.~~ analysis, or when the sample is chromosome. At the locus for eye The probes are made radioactive so degraded by chemical impurities or color, for example, there may be that the DNA sequences to which they damaged by environmental alleles resulting in brown or green become attached can be visibly conditions. PCR is an in vitro process eyes, for the alleles are inherited tracked. The nylon membrane is that causes a specific gene sequence separately from each parent. Instead placed against a sheet of x-ray film to repeatedly duplicate itself, of measuring the length of DNA and exposed for several days. When mimicking its natural replication fragments as in the RFLP technique, the film is developed, black bands process. Short pieces of pdied allele-specific probes are used to will appear at the points where the DNA, called primers, are used to determine whether a specific allele is radioactive DNA probes have build a foundation upon which the present -the allele-specific combined with the sample DNA. The sample DNA can build. The primers oligonucleotide (ASO) probes try to result, called an "autoradiograph" or must have sequences that complement isolate a specified DNA segment. "autorad" looks much like the bar the DNA flanking the specific This process is often conducted in codes increasingly found on items in segment to be amplified. The sample conjunction with PCR. supermarkets and department stores. DNA is heated to separate the double The DNA is first extracted from The final step is the band pattern helix, producing two single strands. the sample of blood, semen or tissue, comparison. Genetic differences By then lowering the temperature, and is placed on a nylon membrane between individuals will be identified copies of the primers bind to the DNA where allele-specific probes are by differences in the location and sample's flanking sequences. A heat- introduced. A process called "dot distribution of the band patterns, stable DNA polymerase (an enzyme) blotting" stabilizes the sample and which correspond to the length of the is then introduced to the DNA sample autoradiography or fluorescent DNA fragments present. The actual causing the primers to synthesize labelling makes visible the points at .measurement of the band patterns complementary strands of each of the which hybridization (connection with being compared can be done manually single strands. This process is the probe) has occurred. There is also or by machine, but often DNA repeated for generally 25 cycles, a reverse-AS0 method which affixes identification depends upon manual amplifying the original DNA the specific oligonucleotide to a examination and the expert judgment sequence approximately a million membrane and uses a signal derived of a trained practitioner. times. The amplified DNA can then from the amplified DNA. be analyzed by any one of several In the allele-specific technique, the -Polymerase Chain Reaction-based methodologies.'2 spots where the DNA fragments have Techniques Following are brief descriptions of combined indicate a "yes" answer, Polymerase Chain Reaction (FCR) two of the methods with potential for that is, the targeted alleles are present. is not only an analytical tool, but also use in the forensic environment. Because a high percentage of the an amplification technique often used population may carry a given allele, Allele-Specific Oligonucleotide however, the analysis must use a Probes series of different probes to narrow An allele is one of several alternate the percentage of the population that In forensic applications, two classes of forms of a gene concerned with the could carry the polymorphic probes are used: multilocus and single fragments present in the DNA sample. locus. Multilocus probes bid to several locations and reveal a complex DNA band pattern, whereas the single locus probes l2See Jean L. Marx. "Multiplying Genes identify one or just a few bands out of the by Leaps and Bounds." 240 Science (June many bound to the Southern blot. Single- 1988): 1408. Also. Office of Technology locus RFLP analysis is the methodology Assessment, Genetic Witness,note 5, pp. most used in forensic cases. 48-49.

Page 6 Forensic DNA Analysis and Issues Amplijcation Fragment Length DNA comparison takes weeks, not -Zdentifcation of Suspects Polymorphism minutes. DNA testing is increasingly The forensic promise of DNA Amplification Fragment Length used to determine paternity and, in typing is substantial. Samples of Polymorphism (AMPFLP) is a more forensic settings, it has been most human skin, hair follicles, blood, recently developed method which prolifically and successfully used to semen or saliva containing cells or detects fragment length identify or exonerate a suspect. other tissues found on a crime victim polymorphisms using the polymerase or at a crime scene can be examined chain reaction (PCR)amplification -Paternity Determinations to identify the DNA pattern. That technology. Similar to RFLP In determining paternity, DNA has pattern can be compared with DNA analysis, this PCR-based approach proven to be extraordinarily useful. from a suspect to make a "positive involves first isolating DNA, but, Each chromosome contains identification," or to exonerate a rather than fragmenting the DNA with nucleotides identical to those of each suspect. Recent advances in DNA a restriction enzyme, the PCR- parent, as well as the nucleotides that examination techniques sometimes amplification technique is used to distinguish the individuality of the permit the use of extraordinarily small produce millions of copies of only the person. If samples from the child and samples of human tissues or fluids, specific portion of the chromosome from one of the parents are available, such as a few hairs or a single spot of containing the fragment length the nucleotides of the child that are blood.14 Moreover, DNA is durable polymorphism. different from the known parent's and is relatively resistant to adverse The PCR-based techniques do not DNA must have come from the environmental conditions such as heat provide the same degree of unknown parent's DNA. If a sample or moisture. DNA degrades slowly in discrimination as the RFLP analysis. from the suspected, but unknown, a decomposing body, lasting Rather, allele-specific techniques are parent supplies all the "missing" sometimes for years and allowing exclusionary; they can provide an nucleotides without any superfluous samples to be analyzed for some time indication that a given individual does nucleotides, one can conclude that the after the death of an individual. not have alleles matching those found suspected individual is, in fact, the Although some experts debate the at a crime scene. If the suspect's other parent. percentage of useable tissue and fluid alleles do match those found at a DNA testing has already been used samples that is retrieved from alI crime scene, however, then the in cases involving questions of crime scenes, DNA analysis will have technique places the suspect in a paternity and criminal conduct. the greatest effect on violent crime limited population group that shares Suffolk County, New Yo& cases, such as murder and rape where those alleles. prosecutors, for example, charged a hair, blood, semen or tissue evidence teenager with hiring a classmate to is frequently found.15 Functions Of DNA Testing murder her father. The defense A 1990 study conducted by the DNA testing provides a basis for claimed that the deceased father had Congressional Office of Technology positive identification, but it is not repeatedly sexually abused his Assessment (OTA) found that DNA expected to become a suitable daughter and was the father of her tests have been used in over 2,000 technology for validating child. A DNA test was performed criminal investigations in 49 states identification in security settings. using tissue samples from the and the District of Columbia. As of DNA analysis would be inappropriate murdered father. The test indicated January 1990, the OTA study found in situations where a nearly that the dead man did not father his daughter's child.13 immediate determination must be l4Debra Cassens Moss,"DNA -The made as to whether a person seeking New Fingerprints,"74 ABA. Journal, entry to a particular area, or seeking to May 1988, p. 67. conduct a particular transaction is, in fact, authorized to do so. The l3Sana Siwolop, et al., "Collaring l5Ted Gest, "Convicted by Their Own chemical analysis required to make a Criminals with DNA 'Fingerprints,' " Genes," US. News and World Report, Business Week December 1. 1986, p. 128. October 31.1988, p. 70.

Forensic DNA Analysis and Issues Page 7 that DNA evidence has been admitted murderer and rapist of the two from a sample of Martinez's blood. in at least 185 court cases in 38 teenagers.17 The first appellate case The DNA match was judged to be a states.16 in the United States in which positive identification.19 Between 1987 and 1990 alone, conviction relied heavily upon DNA In addition to DNA testing for DNA typing has been used to "solve" evidence involved Tommy Lee purposes of criminal identification a number of celebrated crimes. One Andrews, who was sentenced to 78 and prosecution, there are other of the first widely-reported uses of years in prison for rape after a test potential forensic uses of DNA DNA typing in a criminal indicated that the DNA in semen testing. These uses include investigation occurred in Britain. A traces found on a rape victim matched idenscation in situations concerning suspect, who had confessed to the the DNA pattern obtained from an unknown remains; human rights abuse rape and murder of two young examination of Andrews' blood.18 cases; immigration; missing children; women, was exonerated when DNA On May 23,1988, the incidents with multiple and traumatic tests demonstrated that his DNA did "MacNeWhrer Newshour" casualties (such as plane crashes), not match that found in traces of broadcast the story of the arrest and settlement of contested wills and semen and blood on the victims. The conviction of Fernando Martinez. estates; and baby swapping.20 tests did indicate, however, that both Martinez broke into a woman's home, crimes were committed by the same shut off the electrical power to the Forensic Limitations of person. According to the London house and raped the woman. Because DNA Testing Times,police in Leicester County, the woman was legally blind, she was England, then took blood samples unable to make a visual identification. -Infancy of DNA Databanks from more than 5,000 males in three A latent fingerprint was found on the For all of its forensic promise, the villages before identifying the electric meter, and the print matched current state-of-the-art with respect to Martinez's print. Martinez, however, DNA testing has several problems. worked for the sanitation department The time required to process a DNA and collected garbage from the rape sample is lengthy, it is expensive and victim's house twice a week, thus the it requires highly skilled analysts. fact that his fingerprint was found on Another glaring weakness is that the meter box was inconclusive. A DNA testing, unlike fingerprints used DNA test was performed comparing in conjunction with an automated the DNA pattern from the semen left fingerprint identification system by the rapist with the DNA pattern l6See generally. Ofice of Technology (AFIS), cannot be used for "cold Assessment, Genetic Witness, note 5, p. searching," i.e., to identify candidate 14.98-99, and Appendix A. Vermont is suspects, without an automated DNA included in this count because in l7Craig Seton, "Life for Sex Killer Who databank -a new and somewhat November 1989,an admissibility hearing Sent Decoy to Take Genetic Test," The controversial technology. was pending in a rape case. In November Times (London), January 23,1988, p. 3. When tissue or fluid samples 1990, U.S. District Judge Franklin S. See Tyler Marshall, "New Technique suitable for DNA testing are Billings, Jr. of the U.S. District Court for Leads to Charges in British Rape-Slaying; the District of Vermont wrote "...the 'Genetic Figeqxints' Snare a Suspect," government has established that [DNA] Los Angeles Times, September 22,1987, profiling is highly reliable and such Part 1,p. 6. l9See Martinez v. Florida. 549 So. 2d reliability outweighs the increased 694 (Fla 1989). Transcript of the potential for unfair prejudice or l8State v.Andrews, Case No. 87-1565 "MacNeil./L.ehrer Newshour," May 23, confusion." thus denying a motion by the (9th Cir. Ct., Orange Co., Fla., Div. 15, 1988, distributed by Education defense to ban the evidence in the case of Nov. 6,1987) aff d, 533 So. 2d 841 (Fla. Broadcasting and GWETA. US.v. Jakobetz, No. 89-65. See Criminal Dit. Ct. App. 1988). See Carla Robbins, Justice Newsletter 21 (November 1, et al., "Cells That Convict," US.News & 20 Office of Technology Assessment, 1990): 3-4. World Report, February 22, 1988, p.11. Genetic Witness, note 5, p. 51.

Page 8 Forensic DNA Analy~;is and Issues or certification process in place for RFLP technique. Other experts ques- -Funding private lab0ratories.2~Some critics tion, however, whether any laborato- Notwithstanding the level of contend that there are questions about ries, public or private, could improve interest in DNA testing, many State the reliability of commercial much upon these turnaround times. and local laboratories may have laboratory testing. In addition, DNA In the last couple of years, several difficulty finding the financial and testing by private laboratories has government laboratories have begun other resources necessary to initiate been expensive, costing anywhere to conduct DNA tests. In late 1988, an ambitious program of DNA from a few hundred dollars to as for example, the FBI opened DNA testing?2 In May 1989, the Virginia much as $1,000.~~Critics also charge laboratories in Quantico, Virginia and Division of Forensic Science became that the waiting period for the return Washington, D.C. and began accept- the first State forensic laboratory to of test results is as much as six weeks ing test orders from State and local accept cases from all in-state law for tests conducted using the law enforcement 0fficials.2~The enforcement agencies?3 California, Officeof Technology Assessment's Illinois, North Carolina, Maryland, 1990 report on DNA found that over Georgia, Minnesota, Iowa and Florida 27 The American Society of Crime 75 percent of State and local crime are in various stages of establishing Laboratory Duectors (ASCLD) and the laboratories believe that DNA testing DNA testing fa~ilities.3~ ASCLDJAccreditationBoard met in is an integral part of their mission, and September 1990, and with near unanimity, 46 percent said that they have plans to both organizationspassed resolutions implement on-site DNA testing by requiring the accreditation process for forensic laboratories engaged in DNA 1992.3~OTA summarized this level testing to include regular proficiency of interest as follows: 32 Ibid.. 30. testing. This accreditation will be available to all public and private forensic Considering how recently 33 A year earlier, in 1988, the Virginia DNA laboratories. DNA testing has been General Assembly had appropriated funds introduced, interest and to establish a DNA laboratory. "Bureau of During the 1990 legislative session, both involvement in this new Forensic Science and the DNA houses of the New York State Legislature technology at the State and 'Revolution.' "Virginia Department of passed Assembly Bill No. 11073that local crime laboratory level Criminal Justices Services, Criminal would have required statewide are extraordinary? l Justice Information Systems and accreditation of crime laboratories Technology Newsletter, June 1988,p. 1. performing forensic DNA testing. In addition, the legislation would have 34 See MINN.STAT.3 299 C. 155 (1989); established a "Scientific Review Board" to and IOWACODE ANN.3 13.10 (West assess the reliability of DNA testing 1989);also see Gehrke. "Metro leads methodologies. Finally, the bill would way," note 22, p. 1B. On September 8, have established a New York State DNA 1989, Illinois adopted Pub. Act 86-881 Advisory Committee to advise the 29 Tom Watson, "FBI Adopts DNA Test providing authority for the collection of Governor and other State officials on At Pioneer's Expense; FiMust Find blood and saliva samples from certain DNA matters. The bii was "recalled" New Markets." Legal Times, March 27, types of sex offenders. North Carolina from the Governor's Office and, as of the 1989,p. 11; U.S., Department of Justice, opened a DNA testing facility in fall of 1990,prospects for eventual National Institute of Justice, Technology September 1989 and Georgia did the same adoption are uncertain. Letter to Assessment Program Bulletin, DNA in January 1991. January 7.1991. SEARCH Group Inc. from M. Dawn Profiling: For Positive Identification telephone interview with Mr. Mark Herkenham, Counsel, New York State (September 1990):6. Nelson, Serology Unit. North Carolina Division of Criminal Justice Services, State Bureau of Investigations; and September 3,1990. 30 Office of Technology Assessment, January 8.1991, telephone interview with Genetic Witness, note 5. p. 147-148. Mr. George Henin, Serology/DNA Unk 28 Gest, "Convicted by Their Own Division of Forensic Sciences, Georgia Genes," note 15. 31 Ibid., 147. Bureau of Investigations.

Page 10 Forensic DNA Analysis and Issues Part I1 Issues Regarding DNA Testing

Despite its potential, DNA testing databanks have an adverse -Obtaining DNA Specimens From is by no means without controversy. effect on individual privacy? a Suspect Indeed, DNA testing raises difficult Who should be required to There are several legal questions that generally can be contribute fluid or tissue considerationswith respect to classified in terms of four issues: samplesto such databanks? obtaining DNA specimensfrom a invasiveness, reliability,establishment Should the samples themselves suspect. The Fourth Amendment to and use of databanks and be retained or only the digitized the Constitution is one of these.35 dissemination. test results? The Supreme Court has held that the compulsory withdrawal of blood DNA testing inevitably requires Most early proposals for DNA constitutesa search within the taking blood or other bodily databanks contemplatethat the meaning of the Fourth Amendment.36 fluids or tissue from a subject databanks will be used for Accordingly, law enforcement -often without the subject's criminaljustice purposes only. officials may be required to obtain a consent. Is the very process of One commerciallaboratory, search warrant prior to obtaining a DNA testing a violation of however, promotes using a blood sample. In order to obtain a privacy? Does it violate DNA databank to store search warrant, law enforcement constitutional (Fourth or Fifth informationon children in the officials are required to show that they Amendment) rights? Does it event that they are kidnapped. have probable cause to believe that make a difference if samples are Are there legitimate the suspecthas committed a crime. collected for purposes of a noncriminal justice uses such as A few courts require a showing of databank? At a minimum, is the national security; medical more than just probable cause. The process inconsistent with public diagnostics; research; New York State Court of Appeals, for policy principles? employment; and insurance example, held that in order to permit purposes; or genetic screening the taking of samples of blood, hair or DNA testing involves a highly and profiling? other human materials, law enforce- sophisticated laboratory process ment officials must establish: "(1) which was considered beyond lnvasiveness probable causeto believe the suspect the state-of-the-arteven a few Forensic DNA testing -either to has committed the crime, (2) a clear years ago. Is the process match a suspect's DNA pattern indication that relevant material evi- reliable? What are the problems against that of a crime scene specimen dence will be found, and (3) the with admitting the results of or for purposes of building a DNA DNA tests as evidence in court? databank -involves the taking of Are there circumstances that body fluids containing nucleus cells present special risks? (customarily a blood specimen or a saliva sample) or a tissue sample Several statesare in the process (customarily hair follicle samples). If 35 The Fourth Amendment states: "The of establishing DNA databanks the subject does not consent to this right of the people to be secure in their which will enable analyststo process, does the compulsory taking persons, houses, papers, and effects test and compare fluids or of the specimen raise privacy or other against unreasonable searches and seizures tissues taken from crime scenes legal or policy considerations? shall not be violated, and no warrants shall with "DNA prints" on file, for issue, but uponprobable cause, supported the purpose of identifying by oath or affirmation, and particularly describing the place to be searched,and potential suspects. Do we need the persons or things to be seized." such databanks? Does the Constitution, amend. IV. establishment of DNA 36 Schmerber v. State of California,384 U.S. 757,764-65 (1966).

Forensic DNA Analysis and Issues Page 11 method used to secure it is safe and AmendmentPo It is likely that a court After exhausting all leads and reliable."37 would find that the taking of other suspects, the police did something A New York county court recently types of specimens suitable for DNA remarkable. They "asked" males born applied the court of appeals' standard testing, such as saliva samples or between 1953 and 1970 who lived in in upholding the compulsory taking of body hair, is also intrusive in the one of three adjoining villages - a blood specimen Erom an individual sense that the nonconsensual taking Narborough, Enderby and Littlethorpe suspected of raping and murdering a constitutes a search. -to voluntarily zovide blood mentally-retarded woman. In People The question of intrusiveness is samples. Those samples that matched v. Wesley,DNA from the victim had important because were a court to find the blood type found at the crime already been matched with DNA that the taking of a DNA specimen scene were then subjected to DNA retrieved from blood stains on the were not intrusive, a search would not analysisP1 No match was found. su@ectYsclothing. The prosecution occur and the State could require the Later, however, a man confessed that sought a warrant to test the suspect's taking of the DNA specimen on less he had provided a blood sample for a DNA to further verify that the blood than probable cause. fellow worker, Colin Pitchfork of on his clothing was not his own blood. Littlethorpe. When Mr. Pitchfork's The court held that a DNA specimen, "Dragnet" Testing Impermissible real blood was tested, a match was in the form of a blood sample, could Taken to its logical extreme, police madeP2 be extracted in a medically safe way could use "dragnet" techniques to Dragnet DNA testing of the type and that such a process would not be obtain blood samples from literally used in the Leicester County case "unduly intrusive."38 thousands of potential suspects to test (putting aside for the moment that the Literally dozens of courts have against DNA prints derived from fluid subjects theoretically provided blood held that the taking of blood or urine or tissue samples taken from crime samples on a voluntary basis) would samples (generally in the context of scenes. This is precisely what the be barred in the United States under an investigation for drug or alcohol police did -as noted in Part I -in virtually any reading of the Fourth use) is intrusive and a search within three villages in Leicester County, Amendment. Nevertheless, in recent the meaning of the Fourth England. In 1983, a teenage girl from years courts and legislatures have ~mendment.~~It has also been held the village of Narborough was raped relaxed the probable cause standard as that breath tests are searches within and murdered. Three years later, it applies to searches and detentions the meaning of the Fourth another young woman from the that are conducted for purposes of adjoining village of Enderby suffered identification. the same fate. DNA testing of semen stains indicated that the same individual committed both crimes.

37 In re Abe A., 56 N.Y. 2d 288,291,437 N.E.2d265,452 N.Y.S. 2d 6 (1982);see alsoPeople v. Wesley, 533 N.Y.S.2d 643, 41 Tyler Marshall, "GeneticEvidence 659 (Albany Co. Ct. 1988). Aids Crime Probe," The Sacramento Bee, March 12, 1987, p. 1426.

42 Seton, "Lie for Sex Killer," note 17. 39 SeeRailway lkbor Executives' 40 See. e.g., Burnerr v. Municipality of See also, Clare M. Tande, "DNA Typiig: Association v.Burnley, 839 F.2d 575,580 Anchorage, 800 F.2d 1447,1449 (9th Cir. A New Investigatory Tool," Duke Law (9th Cir. 1988) and the cases cited therein. 1986). Jownul (April 1989).

Page 12 Forensic DNA Analysis and Issues Particularized Suspicion May Be emphasized that both Davis and Terry as to whether these statutory schemes Adequate support the view that, "if there are pass constitutional musterjg In 1969, the Supreme Court in dic- articulable facts supporting a tum set the stage for reexamining the reasonable suspicion that a person has More Stringent Standard for DNA need for probable cause. In Davis v. committed a criminal offense, that Searches? Mississippi,the Court held that the person may be stopped in order to An argument can be made, of prolonged detention of suspects for identify him, to question him briefly, course, that even if fingerprinting or fingerprinting on less than probable or to detain him briefly, while photographing can be constitutionally cause violated the Fourth attempting to obtain additional justified on less than probable cause, Amend~nent?~The Court speculated, information.'d7 the nonconsensual taking of blood or however, that "because of the unique In reacfon to both the Davis tissue samples is more intrusive and nature of the fingerprinting process.. . dictum and the holdings in Terry v. thus cannot rest on a standard of less detentions might, under narrowly Ohio and its progeny, nine states have than probable cause. As noted earlier, defined circumstances, be found to adopted statutes that permit the police, the Supreme Court's decision in comply with the Fourth Amendment on the basis of reasonable suspicion Schmerber indicates that the even though there is no probable and thus on something less than nonconsensual taking of blood is cause in the traditional sense."44 probable cause, to detain individuals indeed sufficiently intrusive so as to In the so-called "stop and frisk" temporarily in order to determine their constitute a search. On the other context, the Supreme Court developed identity.48 The State courts have split hand, the Supreme Court, as early as a complementary doctrine. The 1957, characterized the taking of Court's 1968 decision in Terry v. blood as & "routine" event. Ohio held that a police officer could temporarily detain an individual on 47 Ibid., 816. The blood test procedure has the street for purposes of establishing become routine in our identity and determining that the 48 ALASKAR. Cr.l6(c)(l)-(2)(1988); everyday life. It is a ritual for individual was not armed on the basis Aruz. REV. STAT.ANN. 13-3905 (1978); those going into the military of "reasonable suspicion" rather than COLO.R. CRIM. P. 41.1 (1984); ~AHO serviceas well as those probable ca~se.4~Both Terry and CODEANN. 19-625 (1987); IOWACODE applying for marriage Davis are good law today. ANN. 810.1-2 (West 1978 & Supp. 1988); licenses. Many colleges In a 1985 opinion, Hayes v. NEB.REV. STAT.29-3301-3307 (1985); require such tests before N.C. GEN.STAT. $8 15A-271-282(1983); permitting entrance and Florida,the Court applied Davis to UTAHCODEANN. 77-8-1-4 (1982); VT. R. hold that an individual's forcible CRIM.P. 41.1 (1983), as cited in Tande, literally millions of us have removal to a police station for "DNA Typing," note 42, p. 119. voluntarily gone through the fingerprinting is sufficiently intrusive same, though a longer, to constitute a search and thus The Judicial Conference considered and routine in becoming blood requires probable ~ause.4~At the rejected a change in the Federal Rules of donors. Likewise, we note same time, however, the Court Criminal Procedure that would have that a majority of our States authorized Federal magistrates to issue have either enacted statutes in orders on the basis of reasonable some form authorizing tests 43 394 U.S. 721,727 (1969). suspicion, permitting Federal law enforcement officials to detain suspects for any of the following identification 44 Ibid., see also discussion in Tande, 49 Compare People v. Madson, 638 P.2d procedures: "fingerprints, palm prints, "DNA Typing," note 42, p. 486. 18,31-32(Colo. 1981). and State v. footprint measurements, blood specimens, Grijaahra, 111 Ariz. 476,533 P.2d533, urine specimens, saliva samples, hair 534 (1975). cert. denied 423 U.S. 873 45 392 U.S. 1,21(1968). samples or other reasonable physical or (1975). with State v. Evans, 338 N.W. 2d medical examination... "Tande, "DNA 788,792-93 (Neb. 1983). and In re Abe 46 470 U.S. 811,815-817. Typing," note 42, p. 489. A., note 37.

Forensic DNA Analysis and Issues Page 13 of this nature or permit -Obtaining DNA Specimens for The Court concluded that the degree findings so obtained to be Databank Purposes of privacy invasion was minimal and admitted in evidence. We The standard by which the that the interests served by the therefore conclude that a constitutionality of a search is judged inspections were compelling. blood test taken by a skilled changes if the search is not for technician is not such purposes of identifying and Administrative Searches Judged "conduct that shocks the apprehending a suspect, but rather for Using Rational Basis Test conscience". ..nor such a administrative purposes. One such Courts still apply the Camara method of obtaining evidence administrative purpose could be approach to administrative searches that it offends a "sense of building a databank containing DNA -including "searches" for purposes justice."50 [citations omitted] test results of certain individuals who of determining identity. Where the have previously been convicted of administrative search is only Thus, whib the issue is by no designated offe~ses.In Camra v. minimally intrusive, the search will means free of doubt, it is entirely Municipal Court, the Supreme Court meet Fourth Amendment standards of possible that a limited detention of a first addressed whether an reasonableness provided that the criminal suspect for purposes of administrative search -in that case government can demonstrate that it obtaining a blood sample for DNA for health and fire prevention has a "rational basis" for requiring the testing might be upheld on the basis inspections -had to be based upon search, i.e., there is a reasonable of reasonable suspicion or some other probable cause to believe that the relationship between the action in kind of particularized suspicion short subject had committed a crimeP2 question and the accomplishment of a of probable cause.51 Understandably, the Court concluded legitimate governmental obje~tive?~ that health and fire inspections and In Utility Workers of America v. 50 ~reithau~tv. Abram, 352 U.S. 432, other kinds of administrative searches Nuclear Regulatory Commission,for 436 (1957). could seldom, if ever, meet a test instance, a Federal district court based upon individualized suspicion. upheld a statute requiring the The Fifth Amendment also provides a By its very nature and purpose, an fingerprinting of all workers at a protection for criminal defendants which, administrative search does not involve nuclear power facility on the theory at first blush, would seem applicable to a particularized suspicion that a crime that fingerprinting is minimally DNA testing. The Fifth Amendment has been committed. intrusive and thus the government prohibits the use of coerced confessions or In order to reconcile this reality need only demonstrate a rational basis other types of compelled self- with the Fourth Amendment's express for the search. incrimination. In Schmerber v.State of language, the Court noted that the Califonia, however, the Supreme Court Amendment's protections only attach Whatever the outer limits of made clear that the FiAmendment's privilege against self-incriminationapplies to "unreasonable" searches. The Court the right to privacy, clearly it only to "testimonial" information, and not found that health and fire inspections cannot be extended to apply to the compelled production of biological of the type at issue in Camara are to a procedure the Supreme material such as blood or other body reasonable and thus the probable Court regards as only fluids. The Court concluded that evidence cause and warrant protections do not minimally intrusive. involving analysis of blood withdrawn at a attach. In doing so, however, the Enhanced protection has been hospital by a physician over the suspect's Court balanced the public interest held to apply only to such objection but after the suspect's arrest for served by these searches against the fundamental decisions as driving while under the influence, was personal interest -in that case contraception and family neither "testimony" nor "evidence related privacy -affected by the searches. living arrangements. to some communication or writing" and therefore was not inadmissible on the theory that it violated the Fifth 53 Iacobucci v. City of Newport, 785 F.2d Amendment. 384 U.S. at 764-65. 1354, 1355-56 (6th Cir. 1986),rev'd on Schmerber continues to be good law. 52 387 U.S. 523,536-37 (1967). other grounds, 479 U.S. 921 (1986).

Page 14 Forensic DNA Analysis and Issues Fingerprints ...have not been In Von Raab, the Court upheld a In Von Raab and Skinner, it also held to merit the same level Customs Service program that was important that the searches were of constitutional concern.S4 required all employees applying for limited and professionally supervised positions involving the interdiction of and administered. In this kind of Inasmuch as the court found that illegal drugs to supply urine samples setting, the Court was comfortable fingerprints do not merit enhanced for drug testing. In Skinner, the Court that even the blood tests mandated for protection, the court concluded that in upheld compulsory blood and urine, railroad employees "do not constitute order to justify fingerprinting, it is drug and alcohol tests for railroad an unduly extensive imposition on an merely necessary for the Congress or employees involved in certain types individual's privacy and bodily a legislature to show that the of train accidents. integrity" [citations omitted].60 fingerprinting bears a rational While reaffiing that Fourth relationship to a legitimate Amendment probable cause and Blood Testsfor DNA Databank governmental objective. Ensuring the warrant requirements customarily PurposesLikely to be Held security of nuclear reactors clearly apply to my search, including mine Constitutional met this test. and blood tests, the Court emphasized In light of these relevant that, "the probable cause standard 'is authorities, it is certainly possible to Blood Sample Searches Ofren Judged peculiarly related to criminal predict the methodology that a court Using Compelling State Interest Test investigations' " [citations omitted].57 would use in examining the In two recent companion cases, The Court went on to say that the constitutionality of a statute requiring National Treasury Employees Union "traditional probable cause standard certain types of individuals to submit v. Von ~aab?~and Skinner v. may be unhelpful in analyzing the blood samples for purposes of Railway Executives' ~ssociation?~ reasonableness of routine building a DNA databank. Were a the Supreme Court reaffirmed that for administrative function^."^^ court to address the constitutionality an administrative search to be Instead, the Court instructed that of a Stateprogram to establish a DNA reasonable under the Fourth the proper course is to weigh the databank, it likely would find that the Amendment, the search need not "interference with individual liberty compulsory taking of blood samples depend upon a showing of probable that results from.. .a urine test," is a search to produce DNA prints for cause or individualized suspicion. On against the government's "compelling inclusion in a DNA databank. In the other hand, in both cases, the interest in ensuring that front-line in- addition, by the very nature of a DNA Court found that the compulsory terdic tion [Custonls'] person- databank, a court would probably not taking of urine or blood samples nel.. .have unim~hableintegrity conclude that a State could have represented a serious intrusion. and judgment." Given the govern- individualized suspicion with respect Accordingly, in balancing the public ment's compelling interest in both the to the subjects of those searches. and private interests at stake, the integrity of Customs' drug interdic- Finally, a court would probably weigh Court required the government to tion personnel and in the reliability of the law enforcement interests served demonstrate more than a rational key railroad personnel, the Court, in by a DNA databank against the basis. The government had to show both cases, upheld the constitutional- individual's liberty interests in being that the search rested upon a ity of suspicionless searches. freeof the mandate to submit blood "compelling state interest." samples.

54 664 F. Supp. 136,139 (S.D.N.Y. 1987). 57 VonRaab. 489 U.S. at 667.

55 489 U.S. 656 (1989). 58 Ibid., 668.

56 489 U.S. 602 (1989). 59 Ibid., 670-671. 60 Skinner, 489 U.S. at 625.

Forensic DNA Analysis and Issues Page 15 It is uncertain, however, whether a To the extent that inclusion in a appropriate for the government to court would find the privacy invasion DNA databank is limited to convicted require a blood test, but there is to be minimal and thus hold that the felons or convicted felons who have virtually no debate over the legality or balance tips in favor of the been incarcerated, there is already ex- wisdom of imposing a blood test government if the government merely isting authority to suggest that a DNA requirement in at least some can show that the DNA testing databank would pass constitutional circumstances. program serves a legitimate muster. At least eighteen states al- In 1957,in Breithaupt v.Abrams, governmental interest; or would find ready have in place statutory provi- the Supreme Court grappled with the privacy invasion sufficiently sions that expressly require all persons whether the taking of blood from an serious to require that the government committed to State penal or cor- unconscious driver of a motor vehicle show that the DNA testing program rectional institutions to be finger- was ever justified, or rather, was a serves a compelling governmental printed upon admission to such facili- "brutal" and "offensive" act forbidden interest. ties.61 To date, none of these statutes by the ~onstitution.~~Although the The government may be able to has been struck down. To the con- Breithaupt Court eventually upheld sustain its burden, particularly if DNA trary, the United States Court of the constitutionality of a blood test, testing is limited to types of Appeals for the Second Circuit held Chief Justice Warren, joined by individuals in whom the government that a New York statute providing for Justices Black and Douglas, properly has a heightened law the compulsory fingerprinting and vigorously dissented. They warned enforcement interest. In both Von photographing of mental patients, that such conduct was unlawful and Raab and Skinner, the Supreme Court whether admitted on a voluntary or violated American notions of privacy gave weight to the fact that the involuntary basis, does not violate the and liberty. Chief Justice Warren individuals who were subject to the mental patients' Fourth Amendment wrote that due process means that: tests were in a narrow class to which rights to privacy, Fifth Amendment the government could show a rights to substantive or procedural due law-enforcement officers in legitimate and special interest. In the process or Fourteenth Amendment their efforts to obtain DNA databank context, the rights to equal protection of the evidence from persons government's position would laws.62 suspected of a crime must certainly be advanced if the stop short of bruising the government could show that the -Issues Associated with DNA body, breaking skin, individuals in question are likely to Testing puncturing tissue or recidivate and thus the State has a Thirty years ago legal scholars and extracting body fluids, compelling law enforcement and policymakers debated whether it was whether they contemplate investigative interest in having their ever legal or appropriate to compel an doing it by force or by DNA test results on file. individual to submit to a blood test. stealth.64 Today there continues to be debate over the circumstances in which it is Blood Testsfor Suspects or Oflenders Today such concerns are seldom voiced. Blood testing has proven to 61 SEARCH Group, Inc.. "Legal and be a useful tool in a deadly war Policy Issues Relating to Biometric against crime, drugs and alcohol. As Identification Technologies," unpublished report for the Bureau of Justie Statistics. a result, compulsory blood testing for U.S. Department of Justice, June 16, 1989, DNA purposes is unlikely to provoke p. 47, note 267.

62 Wintersv. Miller, 446 F. 2d. 65,71-71 63 352 U.S. at 432 (1957). (2d Cir. 1971). cert. denied, 404 U.S. 985 (1971). Ibid.. 442.

Page 16 Forensic DNA Analysis and Issues much criticism, particularly if the No doubt opposition would arise, Reliability subjects of the testing are limited to in part, from the view that a require- criminal suspects or offenders. ment to provide blood or other body -Scientists CIaim Reliability Indeed, most of the DNA databank fluids or tissue specimens is There is broad consensus among statutes prohibit the retention of DNA "deh~manizin~.'~~Surveys, for ex- scientists that DNA testing can specimen or identification information ample, indicate that approximately 5 produce a reliable identification, from suspects in ongoing to 33 percent of all Americans find however, the mathematical investigations and, instead, limit the fingerprinting to be 0bjectionable.6~ probabilitiesare debated. Some databank to information obtained Research for this report did not find sources claim that the chances of two from certain categories of convicted empirical information with respect to individuals having the same DNA felons.65 Americans' reaction to the compul- pattern is 100 million to one.68 A Offenders and suspects are already sory taking of blood. Nevertheless, it group of British researchers went subject to fingerprinting and is fair to assume that the public's further and argued that there is no photographing requirements. Indeed, adverse reaction to the compulsory more than one in 30 billion chances of offenders are subject to a far more taking of blood would exceed the two individuals having the same DNA serious imposition on their liberty and public's adverse reaction to the pattern -although this number has privacy interests in the form of compulsory taking of fingerprints. been di~~uted.6~ incarceration. As a practical matter, In addition, as discussed in more Whatever the exact number, all the public, the media and legislators detail in the pages ahead, the researchers agree that the theoretical are likely to feel that such individuals universal taking of blood or tissue possibility of two individuals having have effectively waived their privacy specimens for the establishment of a the same DNA pattern (other than interest in avoiding the compulsory DNA databank would be opposed by identical twins) is exceedingly taking of fingerprints, photographs, many on the theory that such a remote. A recent study of the DNA specimens or other process effectively creates a national accuracy and reliability of D~A physiological characteristics that can identification system or population testing by a team of Yale University be used for identification. The public register. Some would also fear that geneticists concluded that the tests, concerns with respect to compulsory such a databank would eventually be when properly conducted and read, DNA testing for these types of misused for a variety of noncriminal provide an accurate means of suspects or offenders are likely to be justice decisions. identification-even when involving muted. members of the same ethnic group.70 The recently published report by the Universal DNAIBlood Testing Office of Technology Assessment Program reached the same conclusion. On the other hand, there is every See Goodman v. Liebowitz,410 N.Y.S. reason to believe that a universal 2d 502,506 (Sup. Ct. Sp. Term 1978)in requirement to provide blood which a plaintiff testified that: specimens for inclusion in a DNA '' '[Flingerprinting' makes me feel 68~aroldM. Schrneck, Jr., "DNA as if I am in the same category as Fiigsare Disputed by Scientists," New databank would provoke a significant York Times, May 25,1989, pp. B1, B12. policy debate. those who have committed crimes or those who are under suspicion. ... I find fingerprinting a psychological 69 Dan L. Burk, "DNA Fingerprinting: and physical handling of me by the Possibilities and Pitfalls of a New State, which is insulting, intrusive Technique." Jurimetrics Journal, (Spring and offensive." 1988): 466. 65 Title 19.2-270.5 of the Code of Virginia (1990). for example, prohibits the 67 SEARCH Group, Inc., "Biometric 70 "Yale study supports accuracy of retention of DNA test results involving Identification Technologies," note 61, p. 'fingerprinting' via DNA." The suspects in criminal proceedings. 75. Sacramento Bee, September21,1990.

Forensic DNA Analysis and Issues Page 17 The Office of Technology Just when a scientific materiality, and reliability [against] ... Assessment (OTA) finds that principle or discovery crosses any tendency to mislead, prejudice or forensic uses of DNA tests the line between the confuse the jury.. ."74 are both reliable and valid experimental and when properly performed and demonstrable stages is Relevancy Test analyzed b skilled difficult to define. In addition, a minority of States personnel.h Somewhere in this twilight and a few of the Federal courts of zone the evidential force of appeal use the more permissive Forensic scientists and researchers the principle must be "relevancy" standard. Courts that use participating in the BJSISEARCH recognized, and while courts the relevancy standard weigh the DNA Forum also stressed that the will go a long way in probative value of a test against the science underlying DNA testing is admitting expert testimony test's potential for prejudice. In valid and prQ~id€%a s~lid basis for deduced from a well- United States V. ~~wnin~?~the cow% confidence in the reliability of DNA recognized scientific stated that the relevancy test requires testing. principle or discovery, the an examination of: (1) the soundness thing from which the and reliability of the process or -CourtsAccept Reliability deduction is ma& must be technique used in generating the sufficiently established to evidence; (2) the possibility that Frye Test have gained general admitting the evidence would In reliance upon DNA testing's acceptance in the particular overwhelm, confuse, or mislead the scientific acceptance, the courts have field in which it belongs?3 jury, and (3) the proffered connection largely embraced the theory that DNA between the scientific research or test testing can produce a reliable, indeed Over the years, the Frye test has result to be presented and particular for all practical purposes, a near-psi- been modified. The Second Circuit disputed factual issues in the case?6 tive identification. In making this Court of Appeals, in particular, has determination, most American courts refined the Frye test by emphasizing rely upon what is known as the "Frye that the court itself must be satisfied test." In 1923, in Frye v. United that the test or process in question is reliable. In United States v. Williams, 74 United States v. Williams,583 F.2d States, the United States Court of 1194,1198 (2d Ci.1978); see also People Appeals for the District of Columbia the Second Circuit held that before the v. Middleton, 54 N.Y. 2d 42,49 (Ct. of held that before the results of a ply- results of a "scientific test" can be App. 1981). in which the New York Court graph test could be admitted into evi- admitted into evidence, the court must of Appeals further refined the Frye dence, the reliability of the test would weigh the evidence's "probativeness, standard by emphasizing that a test need have to be accepted in its own field?2 not be unanimously endorsed by experts in The oft-quoted test propounded by the its field. "[Tlhe test is not whether a Frye court is as follows: particular procedure is unanimously endorsed by the scientific community,but whether it is generally accepted as reliable."

75 753 F.2d 1224 (3rd. Cir. 1985).

76 Ibid., 1237. See also discussion in C. 71 Office of Technology Assessment, Thomas Blair, "Spencerv.Commonwealth Genetic Witness, note 5, pp. 7-8. and Recent Developments in the Admissibility of DNA Figeqkint 72 Frye v. United States, 293 F. 1013, 73 Ibid., p. 1014; see also Burk, "DNA Evidence." in Comment of VirginiaLaw 1014 (D.C. Cir. 1923). Fingerprinting," note 69, p. 468. Review 76 (May 1990): 853,858, n. 21.

Page 18 Forensic DNA Analysis and Issues DNA Test Results Admitted as With rare exception, the courts have that Andrews' DNA "bands" would Evidence found that DNA testing meets the be duplicated in another person's cells Regardless of whether courts use Frye criteria.79 is less than one in 839 million, and the Frye test, a modified version of Recently, an appellate court that control tests were used to guard the Frye test, or the more permissive affmed that the results of DNA- against faulty laboratory work.80 relevancy test, the courts, with just a typing tests, when properly In admitting DNA evidence, the few exceptions, have endorsed DNA performed, are admissible in a Andrews court did not rely upon the testing and admitted its results in criminal trial, In Andrews v. Florida, Frye test. The court complained that e~idence.7~As of mid-1989, DNA the defendant, Tommy Lee Andrews, the Frye &st's dependence on a tech- test results had been admitted into was convicted of various sexual nology's "general acceptance" led to evidence in at least 80 cases of offenses, in part on the basis of a "nose counting." If applied literally, murder and rape in 27 ~tates?~A DNA comparison of blood and semen the Frye test could exclude reliable, New York State study recently found stains taken from the rape victim with but not yet widely accepted tests such that over 30 Frye hearings on the samples of Andrews' blood. Andrews as DNA typing. Instead, the Andrews admissibility of DNA evidence have appealed on several grounds, includ- court relied upon the Third Circuit's been held throughout the nation. ing a claim that shoddy laboratory relevancy test propounded in work made the DNA tests unreliable. ~ownin~.*l The Florida appeals court disagreed, In the summer of 1988, the eviden- finding that DNA testing has been in tiary use of DNA typing reached an- use for approximately ten years; that other milestone. The Virginia there is extensive scientific literature Supreme Court, in three unanimous on the subject; and that the chance rulings, imposed the death penalty on 77 A California superior court in Timothy W. Spencer for rape and Sacramento. California, is one of the strangulation,based, in part, on the exceptions. The court refused to admit use of DNA evidence. The DNA into evidence the results of a DNA test of 79 "New York DNA Report," note 26, p. pattern obtained from semen stains on sperm stains found on the undergarments 19. Opportunities for courts to consider the victim's body matched the DNA of a rape victim. The test procedure used the admission of DNA-typing evidence pattern in Spencer's blood sample. the polymerase chain reaction (PCR) are not frequent. According to published The Virginia decision represents the amplification technique. In holding that reports, most of the cases in which DNA first time that DNA evidence was ad- the PCR technique is not sufficiently evidence is available do not go to trial. mitted in a capital case.82 established in the relevant scientific Instead, these cases tend to be plea community to warrant its use in capital bargained on terms favorable to the cases, the court reportedly gave weight to government. See Robbins, "Cells That three considerations: (1) the PCR test was Convict," note 18. p. 11. '' 'DNA Fingerprinting' Upheld in Fist not developed until 1985; (2) the warranty Moreover, at least one court has been Appellate-Level Challenge." Criminal notice used by the laboratory performing confronted with the question of whether Justice Newsletter 19 (December 1, the test stated, "the performance DNA evidentiary matters are so complex 1988): 3. characteristics of these procedures have that only scientifically trained or literate not been fully established"; and (3)the judges should be allowed to sit on DNA 81 753 F.2d at 1224. semen evidence was "impaired due to the cases. In Bethune v.HonorableAD. degraded quality and small amounts of the Zoios, a Texas appeals court 82Spencer v.Commonwealth,238 Va specimen materials." Wayne Wilson, acknowledged that DNA fingerprinting 275,384 S.E.2d 775 (1989); "Virginia "Judge throws out DNA evidence," The evidence presents complex legal and Jury Sentences Man to Die. Based on Sacrmento Bee. September20,1990, p. scientific issues, but held that the motion DNA Evidence." Crime Control Digest 22 B1. to recuse the judge on grounds of (July 25,1988): 1; see also Pamela Zurer, scientific complexity did not meet Texas' "Death Penalty Imposed Based on DNA 78~chmeck,"DNA Findings are recusal standards. LEXIS No. 2491 Profie," Chemical and Engineering News Disputed," note 68, p. B12. (October 6,1988). (July 25, 1988): 5; see also Blair. Comment, Virginia Lbv Review, note 76.

Forensic DNA Analysis and Issues Page 19 A 1988New York State court Several States, including .. . Probably the most excit- opinion also upheld the admissibility Minnesota, Maryland, Louisiana, ing, as I view it, of the new of DNA test results, finding that: Nevada and Virginia, have recently techniques emerging for the adopted statutes that expressly criminal investigator, is the .. . DNA Fingerprinting -its provide that DNA test results are DNA identification technol- underlying principles, admissible in evidence in criminal ogy. Through a genetic pat- procedures and technology - proceedings.85 Under all of these tern-matching process, crimi- is a scientific test that is statutes, however, the court must be nals can now be identified reliable and has gained convinced that the DNA-typing test positively by comparing evi- general acceptance in the conducted in that particular case dence from a crime scene - scientific community and in yielded a reliable result. that is, blood, body fluids or the particular fields thereof in sometimes a single hair - which it belongs -to wit, -CPirnipralJustke Offwials with that of a SU~LTtre molecular biology, Endorse Reliability FBI Laboratory Division is population genetics and Not surprisingly, many criminal nearing completion of that diverse other branches of justice officials are enthusiastic about project, that will bring about genetics, chemisT5biology the reliability and potential of DNA the full implementation of and biochemistry. testing. FBI Director William that process and make it Sessions, for example, has praised available to all law enforce- Judge Joseph Harris, who authored DNA's potential. ment agencies nationwide. this opinion, later called DNA testing, The cooperation of states "the single greatest advance in the such as California in this new search for truth since the advent of technology has been out- cross e~arnination."~4 standing, and we are, of course, as I believe, standing on the edge of a new techno- logical age and forensic capability, the cutting edge being the DNA capability...86 83 People v. Wesley.533 N.Y.S.2d 643, 659 (Albany Co. Ct. 1988). Other recently reported decisions that have endorsed the The use of DNA tests as evidence validity of DNA typing and have admitted received another boost in January DNA test results into evidence include the 1989,when California's Attorney following: State v. Horsley. 792 P.2d 945. General, after extensive review and (Idaho 1990); State v.Pemll. Westlaw 85 MINN.STAT.Q 634.25 (West 1969); testing, approved the use of DNA 167430, (Del. Super. Ct. Nov. 6, 1989); MD.EVIDENCECODEANN. Q 10-915 evidence in criminal cases presented People v. Hwng, 546 N.Y.S.2d 920 (1986); 1989 LA. REV.STAT.ANN. 0 in the California courts. The Attorney (Nassau Co. Ct. 1989); Martinez v.State, 15.441.10; and NEV. REV. STAT.ANN. Q General had previously been wary 549 So.2d 694 (Ha. App. 5 Dist. 1989); 56.020(1)(2); and see Office of Woodallv.State, 385 S.E.2d 253 Technology Assessment, Genetic Witness, (W.Va.1989); Cobey v.State, 559 A.2d note 5, p. 107. The Code of Virginia states 391 (Md. Ct. App. Spec. 1989); Yorke v. that, "In any criminalproceeding, State, 556 A.2d 230 (Md. App. 1989); and DNA.. .testing shall be deemed to be a 86 Address by William Sessions, Director Kennedy v. State, 545 So.2d 214 (Ala. Cr. reliable scientific technique and the of the Federal Bureau of Investigation, App. 1989). evidence of a DNA profile comparison before the National Press Club in may be admitted to prove or disprove the Washington, D.C.,on September 1, 1988, 84 Gest, "Convicted by Their Own identity of any person." VA. CODEANN. distributed by Federal Information Genes," note 15, p. 70. 8 19.2-270.5 (1990). Systems, Corp., Federal News Service.

Page 20 Forensic DNA Analysis and Issues about rushing a case into court and benefits of DNA testing. They em- Adequacy of Population Studies running the risk of the technology phasized that DNA testing has un- With few exceptions, critics cite being ruled inadmissible. precedented potehtial to identify concerns about only one issue that rapists, murderers and other violent goes to the underlying science of ...So [in January 19881 he offenders. DNA testing: is the possibility of two named a DNA Advisory individuals having the same DNA Committee, comprised of -Problems in Admitting DNA Test pattern indeed as remote as claimed? representatives from the FBI, Results in Court This criticism loses some of its sting the state Bureau of Forensic This is not to say however, that if DNA testing is not used for positive Services, District Attorneys, there are no questions with respect to identification. Nevertheless, critics sheriffs and police, to the reliability and the use in court of note that research with respect to the research both the technology DNA test results. Critics contend, for uniqueness of DNA patterns has been and the legal issues it posed. example, that there has been too much done on only a few hundred human The California Association of enthusiasm for the undrjrlying science subjects, and at that, on a population Crime Lab Directors and too little skepticism about the not chosen for ethnic diversity. They produced 150blind DNA methodology and the outcome of point out that DNA typing is not yet comparisons so accurate that specific DNA tests.89 Many also anchored in the kind of empirical re- the DNA Advisory contend, as discussed below, that the search and operational use that char- Committee endorsed the new use of DNA test results in criminal acterizes friction-ridge fingerprinting. technology for use in ~0urt.8~ trials is unfair in that it overwhelms Moreover, critics note that even if defense resources and blinds the jury the chances of two people having the Addressing the California District to other probative and potential1 same complete DNA (with the excep- Attorney's Association's 1989 annual exculpatory items of evidence? B In tion of identical twins) is remote, convention, the Attorney General late 1989, courts in New York and there certainly remains the possibility announced that DNA evidence was Minnesota limited, or altogether that two people could produce the now ready for use in a serial rapist refused to permit, the introduction of same DNA "fingerprint" using the case and a murder trial scheduled for DNA test results citing concerns RFLP technique because this test the winter.88 about the use of the specific DNA test measures DNA fragment len th rather Law enforcement officials attend- results at issue91 than the entire DNA content.52 ing the Forum on Criminal Justice In People v. Wesley, the court Uses of DNA sponsored by the considered the defense's claim that Bureau of Justice Statistics and population studies are insufficient to SEARCH in November 1989, also support a claim that a DNA match voiced strong support for the forensic 89 See, e.g., Stephen Petrovich, "DNA Typing: A Rush to Judgment," 24 87 Office of the Attorney General, News GeorgiaLaw Review (Spring 1990): 669, Release. "DNA Typing Is Now Ready for 688, n. 91. Use in California Criminal Trials," January 24,1989. 90 See. e.g..Janet Hoeffel. "The Dark Side of DNA Profiing: Unreliable 88 Ibid.; see also, Jack Jones and Thomas Scientific Evidence Meets the Criminal Maugh 11. "Van de Kamp OKs 'Genetic Defendant,"42 Stanford Law Review Fingerprint' Use in Trials." Los Angeles (January 1990): 465,519-525. Times,January 25,1989, Part I, p. 3; and, "Authorities Moving Toward Use of DNA 91 People v. Castro, 545 N.Y.S.U. 985 Fingerprinting," Criminal Justice (Sup. Ct. 1989);and State v.Schwartz, 92 Hoeffel, "The Dark Side," note 90, pp. Newsletter 19 (February 1.1988): 3. 447 N.W.2d422 (Mi.1989). 488-92.

ForensicDNA Analysis and Issues Page 21 could not involve multiple Adequacy of Testing Methods murder of a mother and her two-year- individual^.^^ The court noted that Even assuming the theoretical old daughter. A DNA test determined the private laboratory statistics reliability of DNA testing, important that a blood stain on Castro's watch introduced in evidence were based on questions remain as to whether a matched a blood sample from the an extrapolation of DNA tests of 900 particular DNA test was performed murder victim. In conducting the "gel unrelated individuals in three ethnic properly. According to many experts, electrophoresis" test, the laboratory groupings. The court was satisfied DNA testing presents numerous reportedly improperly discounted as that as a mathematical matter the opportunities for error. non-human contaminants two bands laboratory had demonstrated that the One such opportunity involves the of DNA that did not match. Scientists chances of two individuals having the purity or integrity of the blood or serving as expert witnesses for both same DNA pattern were one in 1.4 other DNA specimen. Samples can the prosecution and the defense issued billion for American blacks and one in be mixed with foreign debris, or a statement criticizing the testing 840 million for American whites.94 worse, with DNA faom sther pr&m and conclu&~gbat, The OTA report on DNA sources?7 Certain crime scenes, such "...overall, the DNA data in this case characterizes questions about the as settings for gang fights or multiple are not scientifically reliable enough "validity of DNA typing -either the rapes, may produce a bewildering to support the assertion."lol Experts knowledge base supporting "stew" of DNA which could resist from the commercial laboratory, technologies that detect genetic even the most careful analytical however, strongly defended the differences or the underlying techniques. In addition, the DNA validity of the laboratory's test results. principles of applying the techniques sample, much like other types of In weighing the admissibility of the per se" as "red herrings that do the crime scene evidence, may be too DNA test results, the Castro court courts and the public a di~service.'~~ small, too old, or damagedg8 looked at three factors: The report acknowledges, however, Because a blood or tissue specimen is that even though the scientific easily contaminated, commentators (1) whether the theory of DNA principles of population genetics are have urged courts to insist that testing is scientifically accepted; not at issue, there is controversy about prosecutors establish that a reliable how to apply these principles to chain of custody was preserved before (2) whether the techniques and interpret DNA test results.96 admitting DNA evidenceP9 experiments associated with A New York State court recently DNA testing are scientifically conducted a 12-week Frye hearing accepted, and before excluding DNA test results in a murder The defendant, (3) whether in the particular case at Joseph Castro, was charged with the issue, the testing laboratory adequately performed the 93 Ibid., 488. In other cases, defendants accepted scientific have also challenged the adequacy of techniques.lM population studies. In Cobeyv. State, 559 97 Thompson and Ford, "DNA Typing A.2d at 391, for instance, the defense Needs Additional Validation," note 7, p. argued that Cellmark's database of 700 64. individuals was inadequate. lolPeople v. Cdro, as reported in 98 See Hoeffel, "The Dark Side," note 90, Schrneck. "DNA Fmdings are Disputed." 94 People v. Wesley, 533 N.Y.S. 2d p. 481; Petrovich, "A Rush to Judgment," note 68, p. B12; see also. New York DNA at 656. note 89, pp. 694-95. Report, note 26, pp. 20-21.

95 Office of Technology Assessment, 99 Ibid., 694. lo2people v. Castro,545 N.Y.S.2d at Genetic Witness,note 5. p. 8. 986-87; and see discussion, Blair, looPeople v. Castro,549 N.Y.S.2d at Comment, VirginiaLav Rev&, note 76, 96 Ibid, 8-10. 987. pp. 868-69,n. 94.

Page 22 Forensic DNA Analysis and Issues The court acknowledged that the same individual, but the prints are and swayed by DNA results.lo7 Of theory of DNA testing is scientifically interpreted as a negative match.lo4 course, DNA proponents point out accepted but gave close scrutiny and What little empirical research is that juries should be impressed with considerable weight to the third available suggests that human error is DNA test results given their reliability factor. sometimes a factor in DNA testing. and their ability to make a near Just a few months later, the In recent controlled tests, for instance, positive identification. Proponents Minnesota Supreme Court took much one of the three commercial also note that juries still exercise the same approach, with much the laboratories that currently conducts independent discretion. In a recent sameresult. In Minnesota v. DNA-typing tests incorrectly Connecticut rape trial, for instance, Schwartz, the court ruled that DNA identified one individual in 48 the jury ignored DNA evidence test results were inadmissible in a identification trials and another exculpating the defendant and murder case. The court acknowl- laboratory made one incorrect convicted him based upon the edged that the science underlying identification out of 54 samples. Both victim's eyewitness identification.lo8 DNA testing had gained wide accept- incorrect hits were due to human Use of DNA test results is also ability. The opinion concluded, how- error, which, evidently, caused a mix- considered unfair by some who argue ever, that the test at issue had defi- up in the DNA samples.105 that defendants are seldom able to ciencies in its quality control proce- obtain adequate expert wimes~es.~~9 dures. The court also found that the Alleged Unfairness to Criminal Certainly, it is true that in the initial private laboratory's failure to disclose Defendants flurry of DNA criminal cases the to the public or the defense the results Critics also contend that defense bar has seldom produced of the lab's experimental studies ren- introduction of DNA test results in expert rebuttal witnesses. Many dered the results unreliable and thus criminal proceedings has the potential experts, however, predict that as state- inadmissible.lo3 to undermine defendants' rights to a administered laboratories enter the fair trial.lo6 They point to several DNA testing field, the role of private Human Error in Interpreting Test considerations. First, DNA test DNA laboratories will shift to provide Results results are both impressive and Even assuming that a laboratory complicated. Thus, there is a risk that uses a proper test methodology, test juries will be unduly impressed with results are difficult to interpret. There is a possibility of human emr. If an analyst, for instance, refuses to 104Thompson and Ford, "DNA Typing declare a match unless all DNA prints Needs Additional Validation," note 7, pp. lo7Petrovich, "A Rush to Judgmenf" are identical in all respects, the 63-64. note 89, pp. 689-90. declared non-match could result in false negatives that is, two samples - lo5Mark Thompson, 'The Myth of DNA lo8Ibid.. n. 104;see also Johnson, "DNA - of DNA may actually come from the Fingerprints," California Lawyer (April, defense rejected: jury convicts in rape," 1989): 34; see also. New YorkDNA Hartford Currant, March 20.1990. p. A. Report, note 26, p. 28. FBI forensic scientists testified for the defense in this case and opined that the lo6It should also be pointed out, DNA test results from the semen stains on however, that DNA testing provides an the victim's clothes did not match the test important benefit to many investigative results from the defendant's DNA and lo3State v.Schwartz, 447 N.W.2d at 428; suspects. OTA has found, for instance, hence the semen could not have come see also. Blair, Comment, Virginia Law that "37 percent of the cases received by from the defendant. Review, note 76, pp. 873-74; see also the FBI for DNA analysis result in "Minnesota Supreme Court Rules DNA exclusion of the primary suspect." Office lo9Hoeffel, "The Dark Side," note 90, Tests Inadmissible," Criminul Justice of Technology Assessment, Genetic pp. 519-23; Petrovich, "A Rush to Newsletter 20 (November 15, 1989): 2-3. Wifness, note 5. p. 17. Judgmenf" note 89, pp. 689-90.

Forensic DNA Analysis and Issues Page 23 services (and expert witnesses) to the standards for accreditation and They also point out that strides are defense bar.l lo proficiency testing.111 already being made to set standards Other "flaws" in a criminal trial in The OTA report concludes that for the DNA testing process. At pre- which the prosecution relies upon substantive and immediate attention sent, for instance, the Technical DNA test results include: the expense must be given to the development of Working Group DNA Analysis of DNA testing and the resultant standards. Methods (TWGDAM) -a group inability of many defendants to afford representing state forensic their own DNA tests; the lack of an Setting standards for forensic laboratories, commercial laboratories opportunity to retest and thereby applications of DNA testing performing DNA tests, the Canadian check DNA results (often because is the most controversial and government and the FBI -is at work small DNA sample sizes make re- unsettled issue. Standards are developing DNA testing guidelines testing impossible); and the necessary if high quality that address such subjects as chain of ?rosx?rtion's (and DNA testing DNA forensic malysis is to custody, proficiency testing, and laboratories') failure to make test be ensured, and the situation quality assurance. The FBI is results and methodologies fully demands immediate providing staff support for this effort. available for examination and analysis attention.112 According to the OTA, some by peer reviewers and defendants. observers see the TWGDAM In rebuttal, proponents point out OTA sees a need for both technical guidelines emerging as the nucleus for that as government-administered standards (gel controls, electrophore- national standards for quality laboratories conduct more DNA tests, sis conditions, population data,etc.) assurance.114 particularly for the prosecution, test and operational standards (record- In September 1989, the American methodologies and results will be keeping, proficiency testing, etc.).l l3 Society of Crime Laboratory more available for scrutiny. Experts participating in the Directors (ASCLD) endorsed the BJSISEARCH "Forum on Criminal TWGDAM quality assurance Lack of Standards Justice Uses of DNA" agreed that guide1ines.l l5The group already has Finally, some observers argue that standards are useful, but disagreed in place an accreditation program for before DNA test results are with any implication that DNA testing forensic laboratories and has passed universally accepted in criminal is unreliable. They point out that even an initiative to establish accreditation proceedings, standards need to be taking today's relatively unregulated standards for forensic and private further developed. Such standards DNA testing environment into laboratories doing DNA testing.l l6 would include controls to assure account, DNA testing is quite reliable The National Academy of Sciences accurate interpretation of test results; and that most laboratories use has also convened a committee to standards for declaring matches; numerous controls. recommend procedures and guidelines standards for determining for DNA testing. BJSISEARCH probabilities of identical DNA in DNA forum participants noted that population cohorts; standards for preserving a chain of custody; standards for recordkeeping; and l4Ibid., 13.74.75. OTA also reports that the National Institute of Justice, through its Law Enforcement Standards Laboratory at the National Institute of loVirginia's law requires the l1 See discussion in Hoeffel, 'The Dark Standards and Technology, has begun to prosecution to provide the defense with at Side," note 90. pp. 479-494. examine standards for DNA testing. least 21 days notice of the prosecution's intention to use DNA evidence and to give l2Office of Technology Assessment, 115Ibid., 146. the defense copies of any profiies, reports Genetic Witness, note 5. p. 10. or statements to be introduced. VA. CODE l6See note 27 of this report for ANN. 5 19.2-270.5 (1990). l3Ibid., 82. information regarding the initiative.

Page 24 Forensic DNA Analysis and Issues the emergence of govemment- It is no wonder, then, that numer- Nevada, South Dakota, Virginia and administered forensic laboratories ous law enforcement agencies have washington.120 capable of doing DNA testing will proposed the establishment of &a- Arizona's law provides that any likely contribute to the standardization banks containing the results of DNA person convicted of a sexual offense and reliability of DNA testing. tests. As noted earlier, the first legis- shall submit to DNA testing for law lation authorizing the establishment of enforcement purposes. 121 Test Establishment and Use of a DNA databank was adopted in 1988 reports are to be maintained by the DNA Databanks in King County, washingt0n.l l8 The Arizona Department of Public Safety. local ordinance requires allpersons Minnesota's new statute requires the -Law Enforcement Use convicted of a sexual offense to sub- Bureau of Public Safety to adopt Given the high rate of recidivism mit blwd specimens for DNA testing. uniform procedures and protocols to associated with violent crime, the The FBI has also proposed the con- maintain, preserve, and analyze potential benefits of establishing DNA struction of a databank containing an human biologicd specimens for DNA databanks from a law enforcement automated (i.e. digitized) record of identification purposes. 122 The standpoint are undeniable.l l7 With DNA test results of certain classes of statute also directs the Bureau to DNA databanks in place, investigators 0ffenders.l l9 establish a centralized system to cross will be able to identify suspects, As noted earlier, the following reference this data. Access to the indeed prime suspects, based upon States have adopted legislation databank is limited to law enforce- blood, semen, skin, hair or other fluid authorizing the establishment of ment officials, prosecutors and or tissue specimens found at crime libraries of DNA samples (along with defendants. scenes. The DNA test results from a indices of their RFLP patterns): Virginia's 1990 law authorizes the crime scene could be digitized and Arizona, California, Colorado, establishment of a repository to store, compared with the digital record of Florida, Illinois, Iowa, Minnesota, maintain and exchange the results of DNA specimens held in the databank. DNA tests conducted in ~ir~inia.~~~ Inasmuch as fingerprint information is The statute reaches a broader subject often not obtained from crime scenes, group than most other DNA databank it is not hyperbole to suggest that statutes in that it authorizes the DNA databanks could revolutionize maintenance of DNA test results efforts at apprehending violent and 118See footnote 21 of this report. relating to every person convicted of a sex offenders. felony on or after July 1, 1990. The Sally E. Renskers, 'Trial by results of a DNA analysis may be Certainty: Implications of Genetic DNA made available "directly to Federal, Fingerprints." in Comment of Emory Law state and local law enforcement Journal 39 (Winter 1990): 332. Federal l7Office of Technology Assessment, this funding for effort was included in the 120Office of Technology Assessment, Genetic Witness.note 5, p. 32. A few FBI's Fiscal Year 1990 appropriation. Genetic Witness, note 5, p. 20. observers, nevertheless, argue that DNA Senator Paul Simon @-IL), a proponent databanks are unnecessary. They point of responsible development of DNA out that in a few years, DNA examination technology, applauded Federal funding. 121House Bill 89-2119 adding a new techniques are expected to be sufficiently One early sign is positive: Congress Article 5 to Title 31. Ch. 2 of the ARIZ. advanced that information about a recently showed its general support for the REV.STAT. suspect's race, eye color. hair color, sex goal of interagency cooperation when it and even body style will be able to be approved funds requested for the FBIto 122 H.R. No. 59 dated May 20,1989 and inferred from DNA samples. Even develop standards and to design a national amending MINN.STAT. &. 8 299 C. assuming that this prediction is accurate, DNA typing databank for information 155. such inferences are hardly a substitute for sharing by State and local law the identification potential offered by enforcement agencies. Press Advisory by DNA databanks. Senator Paul Simon. August 5. 1990.

Forensic DNA Analysis and Issues Page 25 officers upon request made in Relevance of Fingerprint Databank fingerprints of an individual who had furtherance of an official investigation Case Law been arrested, but never convicted.127 of any criminal offense."124 Statutes in most states and at the The court rejected the record subject's California's Department of Justice Federal level already authorize State privacy claim. The court reasoned has already collected DNA samples identification bureaus or State central that retention of fingerprints, unlike from about 14,000 persons convicted repositories and the Federal Bureau of the exhibition of photographs in a of certain sex crimes and has frozen Investigation respectively, to establish "rogues' gallery," does not result in a and stored these samples to be used as and maintain databanks of finger- disclosure of stigmatizing information the base for an operational system to prints, and, in some cases, photo- to the idle curious. Resumptively, the be called "Cal-DNA" (the name is graphic records of offenders and ar- maintenance of DNA specimens meant to draw a parallel with the restees. None of those statutes has would similarly not result in the successful Cal-ID system for been struck down, although in certain disclosure of stigmatizing information fiigeqrint mdysis). The &@bank is circumstances, such as false or unlaw- to the idle curious. being kept current through the ful arrest, administrative or judicial In Cissell v. Brostron, a Missouri addition of DNA specimens from relief is available to assure that the court balanced an individual's privacy persons newly convicted of murder fingerprint or photographic records interest in the return of fingerprints and assault as well as sex crimes. will be destroyed or against the benefits that law As previously discussed, other No decisions were found dealing enforcement agencies receive from States are also considering the with whether a record subject's maintenance of a fingerprint establishment of DNA databanks. constitutional rights are violated in the databank.128 The court held that the Indeed, James E. Starts, a George event that a law enforcement agency benefits outweigh the risks, provided Washington University professor and maintains a record of a subject's DNA that the prints are not disseminated to forensic expert, predicts that "police test results. In any court test with the public or made available for will build DNA identification files respect to DNA databanks, the case inspection in a rogues' gallery. The like the massive fingerprint files that law with respect to the establishment court emphasized that retention of the now exist."lZ and maintenance of fingerprint prints is justified by a common-sense databanks would likely be relevant. need for these prints in major No reported decision has held that a investigations. Presumably, those law enforcement agency violates an same common sense arguments would offender's rights in maintaining the support the utility of retaining DNA offender's fingerprint record. test results for use in future law For that matter, no recent case has enforcement investigations. been found that holds that an arrestee's rights are violated if the Maintaining a Databank on Non- arrestee's fingerprints are maintained Arrestees in a law enforcement databank. In The case law with respect to the Gallagher v. Marion County Victim establishment and maintenance of a Advocate Program, Inc., for example, non-offender, fingerprint databank an Indiana appellate court upheld the comprised of non-arrestees indicates police department's retention of the that in order to retain and maintain

125 Renskers, Comment. Emory Law 127 401 N.E.2d 1362,1366-67(Ct. App. Journal. note 120,p. 330, n. 143, citing Ind. 1980). Hilts, "New Crime Identification Tool 126 SEARCH Group, Inc., "Biometric Devised," WarhingtonPost, September Identification Technologies," note 61, pp. 128 395 S.W.2d 322,325 (Mo. Ct. App. 20, 1987, p. A23. 58-59. 1965).

Page 26 Forensic DNA Analysis and Issues such prints, the State must be able to identification system or card. Of The idea of DNA fingerprints establish, at a minimum, that there is a course, that concern can be assuaged as a future method of national rational basis for maintaining the or exacerbated depending upon whose identification, or as an databank. If it could be shown, for information is in the databank. If "internal passport," is not example, that maintaining a DNA information on all citizens is in the unrealistic. Because many databank containing non-arrestee databank, the potential for me of that proponents are advocating the information bore a reasonable databank for national identification development of DNA relationship to improving law purposes is greatly enhanced. If, on fingerprint files, it is logical enforcement's ability to identify and the other hand, only certain classes of and realistic that DNA apprehend offenders (surely a offenders are in the databank, the fingerprints could replace legitimate governmental interest), extent to which the databank moves social security numbers as then it is likely that the rational basis the nation toward a national personal identifiers, thereby test could be met. identification capability is minimal. becoming de facto internal Indeed, research for SEARCH'S In &isregard, however, at least a ~mspom.Such a step is not report on the "Legal and Policy Issues few participants in the BJSISEARCH likely to occur within the next Relating to Biometric Identification DNA Forum recommended that if a few years. However, if DNA Technologies" found only one DNA databank were to be used only fingerprints replace social decision that indicated that the for criminal justice identification security numbers as personal maintenance of a non-offender purposes, and assuming that the idenwiers, the efficiency of fingerprint record could not meet the databank contained only digitized such an identification and rational basis test. In Goodman v. DNA identification information and it record-keeping system will Liebovitz, a New York State court were economically feasible; then all increase markedly because held that a State statute requiring citizens should be tested and their DNA information, unlike prospective grand jurors to submit DNA test results included in the social security numbers, their fingerprints is con~titutional.~~~databank in order to make the cannot be changed or forged. In the view of the Liebovitz court, databank as useful as possible. The temptation to transform however, the retention of such prints, Critics of the DNA databank the system into an official once a grand jury eligibility decision concept worry that, inevitabl ~uch "internal passport" system is made, would violate the grand databanks will be used to ld'ales would increase significantly. jurors' constitutional rights of and build dossiers about individuals; [foomote omitted]l3 privacy. Importantly, however, the or that the databanks will be used in Liebovitz court acknowledged that its an abusive way to target certain -Genetic Redlining result might change if the State statute individuals for close or inappropriate Many fears about establishing had expressly called for the retention law enforcement scrutiny; or that the DNA databanks arise from the poten- of the priqts. maintenance of such databanks tial for abuse of such databanks. So inevitably has a "dehumanizing" long as DNA databanks are used only -National Population Register effect on both the individuals whose for criminal justice identification pur- One of the public policy issues that informationis in the databank and poses, most observers would conclude arises from the establishment of DNA society as a whole.130 that the benefits of the databank - databanks is the fear that any new identifying suspects and offenders type of identification databank from crime scene evidence -far inevitably moves the nation toward 130Authorities in Northern Ireland, for outweigh any potential drawbacks. the de facto creation of a national instance, are cmently requiring suspected terrorists to submit blood samfiles for DNA testing. CaliforniaLaw Review, 129410 N.Y .S. 2d 502,507 (Sup. Ct. Sp. 1989. p. 679. See also. discussion at Term, 1978) afd 423 N.Y.S. 2d 488 Hoeffel, ''The Dark Side," note 90, p. 533; 131Renskers, Comment, Emory Law (1980). and Renskers, Comment, Emory Law Journal, note 120, pp. 339-340. Journal,note 120, pp. 334-336.

Forensic DNA Analysis and Issues Page 27 But that conclusion may change if DNA database. For that reason, some Policy Board (APB) voted against DNA databanks are used to identify States, including Illinois and adding DNA information to NCIC. In AIDS victims, drug users or, more Minnesota, are establishing databanks 1989, however, the APB reconsidered ambitiously, to construct genetic pro- that include both tissue or fluid its position, "and voted to endorse the files which, in turn, can be used in a samples and digitized records. At this FBI's plan to index and match DNA myriad of employment, insurance, li- point, a consensus has not emerged profiles in NCIC."~~~Certainly, in censing, and other decisions affecting within the forensic community with the absence of such an index, a access to desired statuses or benefits. respect to whether actual tissue and national DNA search would be Of course, the potential for such fluid samples should be maintained. difficult, if not impossible. ambitious and abusive uses of DNA Forum participants -while Assuming that the DNA databank databanks depend upon whether the acknowledging the dangers posed by system is decentralized, difficult databank contains actual blood or preserving fluid or tissue samples in policy issues will arise with respect to tissue samples or merely the digitized DNA databanks -expressed the uniformity of the data and its records of DNA test resuIts. If only confidence bat access to and use of standardization and compatibility for the digitized records are preserved, the information in the databanks could transfer among DNA databanks. A the DNA databank can be used only be regulated responsibly. related question involves whether for identification functions, and the standards can or should be devised to possibility of using the databank for -Management and Regulation assure that both hardware and what many citizens would see as The establishment of DNA software are sufficiently compatible to invasive and inappropriate purposes databanks also raises difficult issues facilitate the transfer of such -such as genetic profiling -is with respect to management and information. avoided. With this in mind, New regulation. For example, should DNA Within each state there will also be York's DNA Advisory Panel has databanks be centralized so as to a question as to what type of entity recommended that only digitized effectively create one national should maintain the DNA databank. DNA test result data be maintained in databank; or, as appears to be At present, DNA databanks in most any future New York State DNA occurring, should decentralized, State states are managed within the law databank.132 DNA databanks be maintained? If so, enforcement system, by State Many of the participants in the will these decentralized databanks be identification bureaus and central BJSISEARCH DNA Forum supported by a national index, much repositories for criminal history emphasized, however, that there are like the FBI's National Crime record information. important and valid reasons for Information Center's (NCIC) preserving the actual blood or tissue Interstate Identification Index (111) Dissemination of DNA specimens and not simply the supports the decentralized, Test Data digitized record of the DNA test fingerprint-based,criminal history results. Participants argued that records system? Many participants in -Use of DNA Data for Criminal maintenance of only a digitized record the BJSISEARCH DNA Forum Justice Purposes locks in "old science." If new test voiced support for some kind of a As a legal matter, there is little methods or protocols are developed, national, decentralized, automated question that DNA test results can be index to state-based DNA databanks. they cannot be used because they will used for alllegitimate criminal justice not produce a test result that is not According to the OTA's report on purposes. Indeed, DNA test results comparable to the test results in the DNA, the FBI supports using the I11 have already been widely used at the to obtain access to state-held DNA investigative~lawenforcement stage, data.133 In December of 1987, the the prosecutorial stage and the FBI's state-dominated Advisory

132"New York DNA Report," note 26, p. 133Office of Technology Assessment, 35. Genetic Witness,note 5, p. 125. 134 Ibid., 126-127.

Page 28 Forensic DNA Analysis and Issues adjudicatory stage of criminal justice problems enumerated in this other criminal justice purposes. In proceedings. report, that the DNA match People v. Stuller, for instance, a The FBI, and State identification should not be the sole basis California appellate court upheld the bureaus in most states, enjoy ample for making an arrest. We use of a non-offender fingerprint in a statutory authority to share recommend that a computer criminal investigation for rape, where identification information, and generated DNA match be the fingerprint on file was obtained in specifically fingerprint information, used only to provide the legal connection with an employment for all criminal justice purposes.135 justification for questioning a identification requirement.137 Presumably, statutory charters suspect or securing a court More recently, however, a establishing DNA databanks will ordered line-up, search concurring opinion by the then-Chief include an express authorization to warrant, fingerprint, or Justice of California's Supreme Court disseminate and use information in extraction of samples of argued, in effect, that Stuller was these databanks for criminal justice physical evidence from the wrongly decided. In Perkey v. purposes. Minnesota's DNA statute, snhpecst. Additionally, if a Oeparfment of hioforVehicles, the for instance, does include express search of the DNA databank California Supreme Court, sitting en authority to use DNA data for law reveals a hit on an evidentiary bane, held that fingerprint enforcement and criminal justice sample taken from a crime information obtained in connection purposes. It seems clear that there scene, a court order could be with applications for California would not be constitutional or other obtained to take a fresh DNA driver's licenses is rationally related legal impediments to this kind of sample from the suspect. to highway safety and, therefore, the statutory provision. Making a second, new DNA statutory fingerprinting requirement is comparison could cure many not violative of the Federal or State -Use of DNA Data as a Basis for of the technical and scientific constitutional rights of privacy.138 Probable Cause challenges to the accuracy Research for SEARCH'S Can DNA test and databank data and reliability of the older "Biometric Identification which indicates a DNA match be used DNA code lodged in the Technologies" report did not find a as a basis for probable cause for an ~om~uter.136 single court decision holding that the arrest? New York's Advisory Panel use of a validly obtained and validly report recommends that in the event Implicit in this recommendation, of retained non-offender print for law of a DNA match arising from a search course, is the view that a second DNA enforcement putposes is of a DNA databank, the match be match or a fingerprint match would unconstitutional or otherwise used by investigating authorities only provide the basis for an arrest and unlawful. Nevertheless, statutory as a basis for further investigation. prosecution. charters for DNA databanks should address criminal justice access to and .. . While it is ultimately for -Use of Non-Offender DNA Data use of DNA data, particularly if non- the courts to decide whether Can criminal justice agencies use offender DNA test data is included in an arrest can be made based DNA data pertaining to non- the databank. solely on information offenders? In a fingerprint context, a contained in the DNA] data handful of courts have addressed bank, the Panel recommends whether, in the absence of statutory that, because of the infancy of authorization, non-offender prints can the technology and all of the be shared with law enforcement officials and used for investigative or 137 10Cal. App. 3d 583 (1970). cert. denied,401 U.S. 977 (1971). 135 SEARCH Group, Inc. "Biornetric Identification Technologies." note 61, p. 136 "New York DNA Report," note 26, p. 138 42 Cal. 3d 185,193 (Cal.1986)(Bird, 64. 36. C.J. concurring; Mosk, J. dissenting).

Forensic DNA Analysis and Issues Page 29 -Use of DNA Data For -General Dissemination Policy The ACLU of Washington has Noncriminal Justice Purposes Issues proposed formal safeguards to mini- Are there legal problems if DNA Simply stated, if DNA databanks mize the risk of improper dissemina- test results are disseminated and used are established, privacy proponents tion and use of DNA test data. Many outside of the criminal justice system? fear, not unreasonably, that the others agree that steps must be taken Many jurisdictions have adopted databanks will soon become targets to minimize the possibility of leakage statutes which prohibit the for noncriminal justice organizations or abuse of the potentially sensitive dissemination of fingerprint (or seeking access to DNA information. and personal information contained in photographic or other identification The list of potential (and worthy) a DNA databank. information) to the public.139 users is substantial. National security On the other hand, some DNA Similarly, California's new statute agencies -which already enjoy proponents, including some providing for the establishment of a access to criminal history record participants in the BJSISEARCH DNA databank express!y provides informdon pursuant to the Federal DNA Forum, point out that as long as that "the blood grouping analysis Security Clearance Information Act the DNA databank consists only of information shall be released only to -may argue that if law enforcement the digitized DNA "print" and not the law enforcement agencies and district needs are sufficiently compelling to blood or tissue specimens, there is attorneys' offices, at the request of the justify access to a DNA databank, little privacy risk in making DNA agency."140 then national security needs are at identification information available to In jurisdictions that have not least as compelling. Other types of the public. Proponents of this view addressed this issue through statute governmental, noncriminal justice argue that information in a DNA law, the courts have sometimes agencies may also claim that their databank is beyond the public's prohibited the release of fingerprint needs may, fiom time to time, require ability to comprehend, much less use. data to the public on various common access to DNA databank information. Even if the public were capable of law or even constitutional theories.141 In the private sector, numerous understanding DNA data, the Statutory charters for DNA databanks types of organizations can be ex- interpretation provides nothing more should be careful to address the pected to seek access to DNA data- than an idenflrcation. Proponents also question of noncriminal justice access bank information. Many private sec- point out that in many states the to and release of DNA test result data. tor organizations, such as those in- public, or at least segments of the volved in providing child care ser- public, already have a right of access vices, already enjoy statutory access to criminal history record information. to criminal history record information. Access to criminal history record In this connection, as noted earlier, information, it is argued, provides one of the commercial DNA labora- access to far more substantive and tories, Cellmark, already advertises sensitive information than does access that DNA test information can and to mere DNA identification should be used to register children in information. order to guard against kidnapping. In response, privacy proponents Medical researchers may also seek argue that dissemination, outside the 139 SEARCH Group, Inc., "Biometric access to DNA databanks for various criminal justice system, of the fact Identification Technologies," note 61, p. research purposes, thus raising the that law enforcement agencies are 65-66. specter of genetic profiling. maintaining DNA test results about a particular individual customarily indicates that the individual is either an offender or is currently the subject 141SEARCH Group, Inc., "Biometric of a criminal justice investigation. In Identification Technologies," note 61, p. 66; C'Paul v.Davis, 425 U.S. 693 either case, the information is (1976). sensitive and stigmatizing. .

Page 30 Forensic DNA Analysis and Issues In view of these concerns, privacy proponents call for DNA databank charters that include safeguards such as: express prohibitions on dissemination of DNA data outside the criminal justice system;142a scheme for purging DNA data after passage of a certain number of years without a rearrest or other involvement in the criminal justice system; remedies for unauthorized dissemination of DNA test data, including civil and criminal penalties and a private right of action; and a requirement that DNA databank subjects receive a written notice that their DNA test data has been retained in a DNA databank and an explanation of the permissible uses of their data and the confidentiality and other protections that apply to their data.143

142California's DNA law prohibits release of DNA data outside the criminal justice system. See Hoeffel, "The Dark Side." note 90, p. 536, n. 413.

143 Virginia's new DNA statute prohibits the release of DNA data except to law enforcement officials and to the record subject in cases where the record subject submits a suitable fluid sample and a match is made. Title 19.2-310.4 and 310.5 of the Code of Virginia (1990).

Forensic DNA Analysis and Issues Page 31 Conclusion

DNA testing and the establishment of DNA databanks hold enormous promise. There seems little doubt that this technology can make a substantial contribution to law enforcement's ability to apprehend offenders, particularly with respect to the most violent and disabling types of crime, such as murder and rape. Techniques that use sophisticated biological processes and computers to identify individuals may be considered by some as posing threats to individual privacy interests. To capture the potential of DNA testing, policymakers must put protections in place that will ensure that the technology will operate in a manner consistent with applicable legal principles. Does this mean that the criminal justice system is constrained from making effective use of DNA testing? The answer surely is no. It does mean, however, that the nation's approach to DNA testing and the establishment of DNA databanks must be calibrated to match American sensibilities. Such measures customarily involve establishing appropriate due process and privacy protections as discussed in this report.

Page 32 Forensic DNA Analysis and Issues