By Cliff Montgomery – Aug. 15th, 2011
“Observers are now raising questions about the Fourth Amendment consistency of using [DNA] databases fornon-forensic purposes and for familial searching—that is, using the…databases to locate potential relatives ofan unidentified suspect,” declared a fascinating short study on this matter released by the CongressionalResearch Service (CRS) in June.
Below, The American Spark quotes the report summary:
“Over the past few decades, state and federal lawmakers have promoted the development of databasescontaining DNA (deoxyribonucleic acid) profiles for individuals who are under the supervision of the criminaljustice system due to their known or suspected involvement in a felony or other qualifying crime.
“Congress has demonstrated concern toward some aspects of DNA databanking by requiring expungement ofa DNA profile in certain circumstances, prohibiting most non-forensic uses of DNA profiles and databases, andrestricting familial searching.
“However, in general, Congress has taken a supportive attitude toward DNA databanking and has incentivizedthe development, expansion, and integration of DNA databases.
“As DNA database programs have widened in scope and grown in numbers, their consistency with the FourthAmendment’s prohibition on unreasonable searches and seizures has increasingly been challenged.
“In the context of compulsory DNA collection, courts have widely upheld laws mandating the collection of DNAfrom persons who were convicted and are subject to the penal system’s custody or supervision.
“However, no judicial consensus has emerged regarding the constitutionality of mandating DNA collection fromarrestees who have been criminally indicted. Instead, courts have split over the existence and scope of anarrestee’s reasonable expectation of privacy and the degree of privacy intrusion caused by DNA sampling.
“The limited number of court decisions in this area also suggests that there are conflicting opinions about theanalogousness of DNA collection and fingerprinting.
“Courts have generally upheld the indefinite use and storage of a lawfully databanked DNA profile after itssource’s conviction. However, not all courts agree that any post-conviction use of those profiles isconstitutionally acceptable.
“In particular, observers are now raising questions about the Fourth Amendment consistency of usingdatabases for non-forensic purposes and for familial searching—that is, using the DNA databases to locatepotential relatives of an unidentified suspect.
“Currently, these concerns are largely confined to the scholarly literature—they have not come before a federalcourt—and are primarily centered on state database programs.
“Unlike some state DNA databases, the National DNA Index System (NDIS) and the Combined DNA IndexSystem (CODIS) can not be used for either non-forensic research or intentional familial searching. However,the increase in states that authorize familial searching suggests that it may not be long before theconstitutionality of familial searching comes before a federal court.
“As these issues percolate up to the courts, new advances and revelations in the science of forensic analysisand databanking may have potentially significant legal implications.
“Several courts have suggested that new forensic techniques and scientific findings would require them to re-evaluate their legal conclusions and analysis.
“In particular, research into the scope and nature of the information revealed by the ‘junk’ DNA used in forensicanalysis may alter how courts measure the intrusiveness of DNA profiling if it suggests that ‘junk’ DNA revealsmore sensitive information about its source than scientists previously thought.”
