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Beware! Uncle Sam has your DNA: legal fallout from its use and misuse in the U.S.

Article Excerpt
Abstract. Technology has provided state and federal governments with huge collections of DNA samples and identifying profiles stored in databanks. That information can be used to solve crimes by matching samples from convicted felons to unsolved crimes, and has aided law enforcement in investigating and convicting suspects, and exonerating innocent felons, even after lengthy incarceration. Rights surrounding the provision of DNA samples, however, remain unclear in light of the constitutional guarantee against "unreasonable searches and seizures" and privacy concerns. The courts have just begun to consider this issue, and have provided little guidance. It is unclear whether the laws governing protected health information are applicable to the instant situation, and if so, the degree to which they apply. DNA databanks are not uniformly regulated, and it is possible that DNA samples contained in them may be used for purposes unintended by donors of the samples. As people live their lives, they leave bits of their DNA behind. They cannot be assured that these tiny specimens will not be taken or used against their will or without their knowledge for activities such as profiling to measure tendencies such as thrill-seeking, aggressiveness, or crimes with threatening behavior. Existing racial or ethnic discrimination and profiling may also encompass genetic discrimination and profiling, creating societal class distinctions. This article will explore the constitutionality of collecting genetic materials, the ethics of such activities, and balance the social good in solving crime and deterrence against the individual's security, liberty, and privacy.

Key words: DNA databanks, privacy, property, unreasonable search and seizure

Background

Technology has provided state and federal governments with huge collections of DNA samples and identifying profiles stored in databanks. That information can be used to solve crimes by matching samples from convicted felons to unsolved crimes. Genetic evidence from a crime scene is admissible at trial when a state's computerized DNA database matches the crime scene evidence with a DNA sample from a prison inmate included in the database. While the genetic pool of potential suspects in the nationwide DNA database, known as CODIS, or Combined DNA Index System, grows as more people are incarcerated, many states (1) are increasing the number of crimes for which a prisoner is mandated to provide a DNA sample. That requirement has aided law enforcement in investigating and ultimately convicting suspects. The samples also may result in exonerating possible suspects as well as proving the innocence of convicted felons, many of whom are on death row, after lengthy incarceration. (2) In that regard, the AMA in 2000 adopted a policy supporting the criminal justice system's use of all appropriate medical forensic techniques to avoid wrongful convictions or executions. (3)

This article will explore

* the constitutionality of collecting genetic materials in light of Fourth Amendment prohibitions against "unreasonable searches and seizures";

* the ethics of such activities;

* privacy concerns and individual rights; and

* the need to balance the benefits of genetic information to society against the rights of individuals to control and safeguard information about themselves and prevent its use for unintended purposes.

If a suspect is in custody, the suspect's constitutional right to refuse to provide a genetic sample may be at issue. Commentators have cited suspects' Fifth Amendment right not to act as a "witness against themselves" as the basis for refusal. Courts, however, have limited the right against self-incrimination to a suspect's oral testimony. (4) The Fourth Amendment right against "unreasonable searches and seizures" (5) requires the issuance of a warrant and the presence of probable cause before any search may be conducted. The law in this area has been settled and well-established with regard to searches of houses and personal effects. (6) Rights relating to obtaining a DNA sample, however, remain unclear. (7) It can be argued that the sensitive nature of some of the information within our DNA means that even noninvasive DNA sampling should be treated as a search subject to Fourth Amendment analysis. (8) Inclusion in the DNA database is a form of discovery and does not condemn or sanction anyone. The fear has been expressed that if people are included in the database, they have a greater chance of being erroneously accused of a crime. The risk of false accusations from database searches is a reason to have strict quality control and assurance measures, and to educate police and the public that a "hit" is not the end of the investigation. (9) While the basic structure of DNA is the same for everyone, no two individuals, other than identical twins (or cloned individuals), have the same DNA sequence. This discovery has had important repercussions in the criminal justice system, where DNA can serve as an identification tool. (10) As such, DNA can be valuable in proving or disproving suspects' physical involvement in criminal activity (11) and for other purposes such as identifying deceased victims. For this reason, DNA identification is often referred to as "DNA fingerprinting" and is compared to traditional ink fingerprints. (12) DNA is far more powerful and potentially invasive than an actual fingerprint, however, because there is much more information about an individual in his or her DNA than in his or her fingerprint. The former contains a person's hereditary propensities and susceptibilities, parentage, and racial origins. DNA is durable and recoverable in minute quantities. The decision to place one person's DNA profile in a databank is an indirect decision to do the same with profiles of that person's biological siblings and parents, since the DNA sample of an individual contains information about every close relative to that person. (13) While that aggressive practice could be defended as an aid in solving crime as well as a deterrent, the moral and ethical implications of inclusion together with possible stigmatization and embarrassment constitute barriers that must be considered and overcome. Even if convicted criminals have diminished rights to privacy, their families' rights should not be affected. (14)

Former FBI Director William Sessions points out that while "approximately 25% of DNA tests do not produce a match," (15) nevertheless there is growing resistance on the part of prosecutors to allow the post-conviction DNA testing. Calling attention to the 137 post-conviction DNA exonerations, Sessions argues that it is the moral responsibility of prosecutors to permit testing to go forward in cases where the results can make a difference. Opponents of post-conviction DNA testing fear that it would unleash demands from every inmate at exorbitant cost. The Innocence Project at Yeshiva University's Benjamin N. Cardozo School of Law, a nonprofit legal clinic, rigorously screens requests and eliminates about 90%; costs are often borne by the defendants, the Innocence Project network, and other nonprofit organizations.

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