Familial DNA Database Searching

Naval Criminal Investigative Service Familial DNA Database Searching 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.

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