Familial DNA Database Searching

Naval Criminal Investigative Service

By Fitzhugh Cantrell Recent advances in DNA technology are evolving so rapidly that some have sur- passed current state and national criminal laboratory policies. None of these advances in DNA technology is more controversial than familial DNA database searching. The traditional DNA database search involves identifying an exact match between a crime scene DNA profile and a criminal database suspect profile. Familial DNA database searches occur following a failed exact match search and involve changing the param- eters of the search to include partial or close DNA matches between the crime identify an exact match from the crimi- al level, the FBI’s Combined DNA Index scene profile and the criminal databases. nal database. This distinction between System prohibits these types of searches. Once a close match is identified, a crimi- the two searches is particularly impor- The FBI CODIS has recently made nal investigation focuses on the relatives tant when the suspect profile is dete- some concessions in their policy to allow of the near DNA match, attempting riorated and contains less than the full states to share this type of information if to determine if they are responsible for identifying DNA markers. Assessing a they choose. The FBI’s policy leaves it up the crime. This investigative practice partial match practice can be particularly to the individual states to decide whether has been embraced by police services difficult when the case involves a dete- to allow familial DNA database search- in Great Britain and enthusiastically riorated DNA sample, one with less than ing, and has critics on both sides of the supported by a handful of prosecutors the normal 26 alleles, something that is issue. Many consider this policy a failure in the U.S. However, the practice has not uncommon in crime scene DNA, to take a position on the practice, which been criticized by many in the legal and particularly cold cases. 1 In comparing fa- has resulted in various state policies on academic communities due to privacy milial searching and partial match prac- the practice.2 rights issues. To further complicate this tices, one finds that legal professionals practice, there still remains an issue as to are equally divided on the practice, both Familial Searching what exactly constitutes familial DNA stating that if you allow one practice, it is Policy Incoherence database searching. hard to disallow the other. From a legal Initially, familial searching was limited There is an important distinc- standpoint, it is hard to separate the two to individual state practices as well as tion between familial DNA database practices. the CODIS inter-state regulations. This searching and partial DNA matches. A An important aspect of the prob- rule prohibited the release of any identi- partial DNA match is an unintended lem involving familial DNA searches is fying information about an offender in match during a normal initial criminal the lack of a national standard involving one state’s database to officials in another database search. A familial DNA data- its practice in the U.S. State policies vary state unless the offender’s DNA was an base search involves a deliberate follow- on allowing its practice within their state exact match. In 2006, however, Denver up search for similar matches usually criminal database systems. At the nation- 2) Ram, Natalie. Greenwall Fellow in Bioethics and Health Policy at following an initial search that failed to 1) Harmon, Rockne. Forensic/Cold Case Consultant. Former district John Hopkins and Georgetown Universities. Personal interview. attorney. Personal interview. March 12, 2010. January 20, 2010.

24 Journal of Public Inquiry District Attorney Mitch Morrissey iden- investigation.4 The practice is still very familial searches using CODIS. The cri- tified a local case where a close match premature in states like California which teria used to properly evaluate these al- was found between evidence taken from has had the policy since 2008. Initial re- ternatives are: the legal and privacy rights the scene of a rape in Denver and with ports were that California has attempted issues surrounding familial DNA search- convicted felons in California, Oregon, familial searching six times and have yet ing, the effectiveness of familial search- and Arizona. This match indicated that to identify a partial match until a recent ing, and the impact familial searching the actual perpetrator was potentially a break came in July 2010. 5 In the break, will have on public safety. relative of one of the unidentified con- the LAPD arrested the “Grim Sleeper” victed felons. DA Morrissey approached serial killer, Lonnie David Franklin, who Privacy Rights and the FBI and convinced them to modify the police have charged with 10 counts Familial Searching their stance regarding familial DNA of murder. This arrest was California’s Privacy advocates argue that “developing searching. Follow-up testing by the states first successful attempt in familial DNA technology, rather than constitutional revealed that none of the profiles in the searching. 6 analysis and informed public decision state databases were related to the Colo- making, is driving the expansion of DNA rado rapist. Regardless of the lack of suc- Policy Alternatives databanks.”7 The Supreme Court has re- cess, the new FBI interim policy left it up The three main policy alternatives for peatedly held that authorities may not to each state to decide whether it would the FBI CODIS laboratory regarding fa- conduct searches for general law enforce- report to intra-state investigators any milial DNA searching are: (1) the FBI ment purposes without probable cause. partial matches that might turn up in the should discourage familial searching Maryland is one of the few states that has course of ordinary database searches.3 within states by denying national fund- outlawed familial DNA searching. Crit- Since the FBI released its interim ing to those states that allow its practice; ics are also disturbed by the demograph- policy, states have taken a number of ap- (2) the FBI should encourage familial ics of DNA databases. Some consider proaches to the issue. California was the searching both within states and nation- the existing criminal databases as already first to set up a comprehensive familial ally by requiring states to perform famil- racially skewed and further developing searching policy. Maryland is the only ial searches or risk being denied federal familial DNA leads from these databases state with state legislation on familial funds; or (3) the FBI should maintain would exacerbate the problem.8 searching, and it bans the practice. This the interim policy which allows states to Despite the vocal concern by variance is further complicated when set their own policy regarding familial privacy and defense advocates, legal you examine different state DNA data- searching and does not conduct national scholars recognize that making a Fourth base collection and use standards. Ken- Amendment claim tucky collects DNA samples from per- about familial DNA sons found guilty of misdemeanors while searching is diffi- at the same time restricting DNA appeal cult. DA Morrissey testing for inmates serving life sentences. argues that since Other states collect DNA samples from individuals in the only convicted felons. Despite the broad database have al- spectrum of state policies on DNA, many ready been arrested states have not taken an “official stance” or convicted of a on familial DNA database searching. crime, they have a Nonetheless, there are trends of state reduced expectation familial DNA database searching policy of privacy. Addi- and statute expansion. Of the 32 states tionally, DA Mor- with some policy or practice already rissey argues that the in place, at least 16 permit the report- alleged suspect who ing of a partial DNA match to criminal 4) Ram, Natalie. “DNA Condential.” Science Progress. November 2, investigators for the purpose of familial 2009. 7) Simoncelli, Tania, and Sheldon Krimsky. “A New Era of DNA Collec- 5) Supra note 1. tion: At What Cost to Civil Liberties?” American Constitution Society 6) Simon, Mallory. “Arrest made in Los Angeles Grim Sleeper serial for Law and Policy. 2007. 3) Rosen, Jeffrey. “Genetic Surveillance for All.” Slate Magazine. March killer case.” CNN.com; http://www.cnn.com/2010/CRIME/07/07/grim. 8) Nakashima, Ellen. “From DNA of Family, a Tool to Make Arrests.” 17, 2009. sleeper.arrest/index.html?iref=S1. July 7, 2010. Washington Post. April 21, 2008.

Visit www.ignet.gov 25 Alternatives Costs* Legal Safety Political Total worth the risk to privacy at the national Feasibility Impact Feasibility level? Many believe that it isn’t, citing Encourage 3 2 2.5 2 9.5 studies that state the overwhelming ma- State Familial jority (87 percent) of traditional-offend- Searches er hits occur within the state in which States Decide 2.5 4 1.5 3 11 the crime occurred. The costs involved in Independently encouraging all states to perform familial DNA searching are moderately low. Discourage 4 1.5 0 1.5 7 State Familial Initial start-up costs in implementing a Searches modified version of the existing comput- er software for the state databases could Chart: Scale 0-4 (0 - none, 1 - little, 2 - projections, the estimates indicate that be significantly reduced if they used or moderate, 3 - signi&cant, 4 - high) up to 80 percent of those five percent could be indirectly identified. It follows modified the current software that either *Costs meaning a+ ordability. 12 that kinship analyses could increase a 10 California or Colorado utilizes. Other percent cold-hit rate to 14 percent which costs involve additional comprehen- left his DNA at the crime scene gave sive DNA testing on the seized sample. up his expectation to privacy when he is an overall increase of 40 percent.” Last year there were approximately 20,000 The real issues underlying familial DNA left his DNA sample there. The last le- searching concern the legal and political gal argument favoring familial searching cold hits and it is estimated that familial searching has the potential for thousands feasibility of the practice. Legal scholars simply states a suspect identified from a on both sides of the issue agree that both familial search cannot claim legal stand- more once the practice becomes a stan- 10 fortuitous partial DNA matches and ing to challenge the DNA profile search dard investigative step. They argue this based on the ineffectiveness of DNA da- familial searching are difficult to distin- of his sibling, parent, or offspring. This guish legally, and both practices should standing issue is a fundamental issue to tabase operations in a study conducted by the University of Nebraska at Omaha be found either unconstitutional or overcome, even before a challenge can be constitutional.13 The Policy Alternative seriously pursued. The conventional le- by Samuel Walker and Michael Har- rington, where only one of eighteen da- Chart attempts to rate the likelihood of gal wisdom is that familial DNA search- potential outcomes with a higher num- ing is a close call that legally depends tabase searches led to the violator responsible. Some law enforcement officials ber given to that which is most reason- on the specifics involved, but may be a able. harder challenge for the defense because have expressed concern that funding for 9 these DNA database searches and analy- of the legal standing issue. Policy Alternative Chart sis would reduce existing funding from and Analysis of the The Effectiveness of more established law enforcement mea- Alternatives Familial DNA Searching sures such as following up on traditional investigative leads or placing uniform of- The Policy Alternative Chart analysis On page 1315 of Frederick Bieber, et ficers on patrol. 11 favors keeping the current policy of the al, Science magazine article “Finding FBI CODIS, which allows states to de- Criminals Through DNA of Their Rela- The Public Safety cide whether to conduct familial DNA tives,” writes about the effectiveness of Impact of Familial DNA searches. The fundamental belief is that familial DNA searching. Bieber states, familial DNA searching is likely prema- “consider a hypothetical state in which Searching ture for making final decisions on the the “cold-hit” chance of finding a match It is difficult to state the public safety practice at the national level. Also, many between a crime scene and someone in impact of familial DNA searching since believe that states can have different the offender database is 10 percent. For the practice has just started in the Unit- practices on aspects of public safety and example, if among criminals who are not ed States. Despite the potential impact privacy rights like familial searching. The in the database themselves, five percent to public safety, the fundamental ques- practice could be just another potential of them have a close relative (parent/ tion remains: is familial DNA searching capability of a state database, something child or sibling) who is. Based on these 10) Supra note 7. 11) Bieber, Frederick, Charles Brenner, and David Lazer. “Finding Criminals Through DNA of their Relatives.” Science Magazine, Vol. 12) Supra note 1. 9) Supra note 1. 312. June 2, 2006. 13) Supra note 2.

26 Journal of Public Inquiry that doesn’t necessarily need a national subject matter experts in both the legal Fitzhugh L. Cantrell standard given the difficulty involved. and scientific fields. Some of the criteria Overall, it would be difficult for the FBI require that cases being presented to the CODIS to advocate the practice at the FSC must have all logical investigative national level citing an expected signifi- leads completed and a full DNA profile cant improvement to public safety with- identified from a single source profile in out additional successes like the “Grim a crime scene. A single source profile in a Sleeper” case as well current U.S. state crime scene is usually common in sexual statistics on the practice. crimes or violent crimes involving only The potential political land- one attacker. The CA familial searching mines involving familial DNA searching policy states that it can only be used in come from all sides: privacy right groups, major violent crimes where there is a se- groups critical of “big brother” govern- rious risk to public safety. Furthermore, ment expansion, African-American po- the CA policy requires additional com- litical leaders concerned with law en- prehensive DNA testing on all suspect forcement racial profiling, and law and samples before the search is conduct- order groups critical of perceived “pro- ed. When a familial search identifies a criminal” legislation if the practice is match, the FSC (not the investigator) Fitzhugh L. Cantrell is a supervisory prohibited. Political ideology of the state initiates a background investigation on special agent with the Naval Criminal appears to be a factor in the practice, the candidate to determine whether that Investigative Service currently assigned but this is not always the case. Despite candidate can be eliminated by historical to the Office of Special Projects. He be- a greater percentage of traditional “red facts and relationships or circumstances gan his law enforcement career as a state states” having policy in favor of the fa- surrounding being a potential relative of trooper with the Maryland State Police. 15 milial searching, there are several signifi- the true perpetrator. Mr. Cantrell previously served as the cant exceptions. California, a traditional The CA familial searching policy supervisor of the NCIS Cold Case Ho- blue state, was the first state to formally is one of the most advanced pro-familial micide Division and special agent afloat approve familial searching. Connecticut, searching policies and the FBI CODIS onboard the U.S. Naval aircraft carrier New York, Washington, and Oregon should gather a working group of sub- USS Truman (CVN 75) in support of also permit partial match searches to be ject matter experts surrounding various Operation Iraqi Freedom. He earned his reported. However familial searching legal, scientific, and human rights fields Bachelor of Arts from Hampden-Sydney is not allowed in historically political to closely monitor their results. Familial College, has a master’s degree in Public 14 “swing states” like Ohio and Michigan. DNA database searching is no doubt an Administration from Old Dominion important scientific advancement, but its University, and another master’s degree The Future of Familial use by law enforcement should be taken in policy management from Georgetown Searching with caution. An incremental state-by- University. California Attorney General Jerry Brown state approach to the practice, despite its decided to resolve the issue of familial many drawbacks, could be an effective searching in California by establishing test case for determining its national im- a state policy on the practice instead of pact on public security as well as privacy pushing the legislation, which is some- rights. thing many believe is the future of familial searching. California’s familial This article is a condensed version of a searching policy placed significant safe- capstone paper submitted to Georgetown guards in place, establishing strict crite- University as a requirement of the Inspec- ria which must be presented to the Fa- tor General Master of Policy Management milial Searching Committee. The FSC program. is made up of a panel of state certified

14) Supra note 2. 15) Supra note 1.

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