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. Copyright O SEARCH Group, Inc. 1991 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