Criminal Law

DNA Sampling, Crime Investigation and Your Rights

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A federal court recently upheld the federal law allowing officials to take DNA samples from every person entering the federal criminal justice system. The data obtained from the DNA sample may also be kept in a government database - forever.

This applies even to persons who are never convicted of any crime. Many states have similar databases. Laws vary, but usually a DNA sample will be taken from every person arrested for a felony offense.

DNA evidence can help convict the guilty and exonerate the falsely accused and wrongly convicted. DNA collected from a crime scene can be quickly compared to records in the federal and state databases to identify or rule out suspects. Critics of this policy say that by taking samples before conviction, the government is getting information it otherwise would not have from many innocent persons. Keeping that data after a person's been released without conviction also worries them.

As the dissent pointed out, DNA evidence is not simply identifying biometric data. It goes far past fingerprints and iris scans in what it reveals about a person. It may be that the US Supreme Court has the last word on the matter.

Original Article

Sitting in the interrogation room, the suspect resisted. He wouldn't give that fingerprint. It was his own. No one could make him give the fingerprint to anyone. It wasn't a blood sample, or a breath sample, it was simply a swab from inside his cheek. He could say no, couldn't he? After all, it was his DNA.

DNA Testing Can Show Innocence

An Illinois man was recently freed after DNA testing showed he wasn't the killer of his eight-year-old daughter and her nine-year-old friend. He confessed to the murders but said police coerced him. He spent five years in jail awaiting trial. Prosecutors then reported DNA testing linked another man, who is in jail in Virginia on unrelated charges, to the crime.

In the US, 23 states, including Virginia, have laws requiring DNA tests of persons arrested for certain crimes. In Illinois, DNA testing is required for persons convicted of a felony.

Requiring DNA Sampling

Some courts, such as in Illinois, have ruled that if you're charged with a crime you must provide a DNA sample for testing. An Illinois appellate court recently ruled taking a swab from a suspect's cheek is non-intrusive, and doesn't violate any constitutional privacy rights.

Courts across the country vary in whether other sampling methods, such as drawing blood, can be required of a suspect without invading their privacy rights. If a suspect doesn't consent to provide a sample of blood, urine or other bodily fluids, the police can try to get a search warrant to obtain one.

In any case of non-consensual sampling, the stakes may be high given the risks of health complications. Infections, bruising and other injuries might occur when drawing blood. In providing other samples, there is always a risk, perhaps remote, the testing process will violate a person's privacy concerning their health.

For DNA testing, various methods are used, including hair removal, swabbing from inside the cheek, and drawing blood or sampling other body tissues. There are several DNA tests available, and the accuracy and reliability of these tests has improved greatly over the years.

ACLU Fights DNA Law in California

The American Civil Liberties Union (ACLU) is challenging a California law, approved by voters, which requires police to collect DNA samples from all felony suspects. One-third of all people charged with felonies in California aren't convicted. The ACLU argues this statistic is alarming, and should cause the federal appeals court for the Ninth Circuit to find the law unconstitutional.

In June 2009, the Ninth Circuit Court of Appeals ruled in a different case that Las Vegas police made an unconstitutional search and seizure of a man by taking a DNA sample for entry in a criminal database. The man was under arrest, but not suspected of any other crimes.

The lawyer for the State of California told the court that the Nevada case was different, because Nevada had no law allowing post-arrest DNA testing, but California does. The California case involves a woman who was in an anti-war rally and was arrested for forcibly trying to free another demonstrator. She agreed to provide a DNA sample after police told her she would be charged with another crime and held in jail if she refused.

Other Considerations

Even if your state or locality can collect DNA from you if you're arrested, there are other factors to think about:

  • At what point can police take your DNA? Routine search? Arrest?
  • How long can police keep your DNA on file after an arrest or conviction?
  • Can they use your DNA to match against other crimes unrelated to the one they initially got it for?
  • Can they take or use DNA if it's not directly from the person - in the garbage, from a hairbrush, discarded cigarettes, etc.
  • Do you have to specifically have to ask for it to be removed from your file if you aren't convicted of a crime or will it be removed automatically?

As with most controversial topics in legal prosecution where does finding "who did it" stop and personal privacy rights begin, and can they live side by side? Using DNA to solve crimes or exonerate someone has been available for about 20 years, but there are still many factors around it that haven't been decided.

Questions for Your Attorney

  • In our state, when can police collect DNA without a person's consent?
  • Can I try to have DNA evidence suppressed or thrown out at my trial if I argue the police didn't have the right to collect the sample?
  • What are the legal issues if you give the police a DNA sample you claim as your own, but you obtained it from another person? Is there any crime for "DNA fraud"?
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