The U.S. Supreme Court on Monday issued a ruling that effectively allows police to routinely take DNA samples from anyone arrested on suspicion of a crime. The ruling reflects a troubling trend away from protection of privacy and respect for constitutional protection against searches and seizures. Coupled with the court’s recent indifference toward warrantless wiretaps and granting police easy access to everyone’s phone records, the ruling casts a dark shadow for those concerned about growing government intrusion in the private lives of U.S. citizens.
Police have long recorded fingerprints of most people arrested on suspicion of a crime. The court’s ruling places DNA in a category along with fingerprints and mug shots — information police can take without a warrant to identify those arrested, but which can then be used without warrants or subpoena to identify the arrestees as suspects in other crimes. As such, DNA identification raises many of the same concerns associated with fingerprint evidence.
DNA Evidence Breeds Blind Faith
Contrary to popular belief, mistaken fingerprint identification has often led to arrest of an innocent suspect. Portland attorney Brandon Mayfield was arrested and held as a terrorism suspect for two weeks in 2004 based on wrong fingerprint identification. A 2005 study by University of California criminologist Simon Cole cited systematic error rates in fingerprint examiners’ proficiency tests since 1983 at just under 1 in 100. But courts and jurors tend to accept fingerprint identification as 100 percent certain (Science Daily, Sept. 2005).
Among the general public, DNA evidence enjoys an even more stellar reputation but opportunities for errors abound. Switched, mislabeled or contaminated samples may be the most likely source of error in DNA testing. Clerical errors and errors by lab technicians further complicate DNA-test accuracy. And investigators don’t always examine in close detail lab reports that could reveal errors.
Jury’s often convict people accused of serious crimes based solely on DNA evidence. Such evidence can also snowball, even when it’s faulty evidence. Confronted with supposedly rock solid DNA evidence, those being interrogated by police are even more vulnerable to being coerced into a false confession after hours of high-pressure questioning. The potential for anyone — but especially for less educated and juvenile suspects held in police custody — to give false confessions under pressure is well documented. Even if DNA lab errors are later exposed, a defendant plied with tainted evidence to make a false statement may then have to explain away a video recording of a coerced confession.
Another downside of increased reliance on DNA testing is the ease with which DNA evidence may be planted. Fingerprints are somewhat difficult to fake at a crime scene. DNA evidence can easily be obtained – it can be as easy as lifting a hair from someone’s brush. Such evidence can be stored, relocated and planted. A tidal wave of new reliance on computers to match tiny samples of DNA evidence from crime scenes against massive databases containing the DNA of everyone ever booked for a petty crime may encourage clever crooks to find new ways to hide their role in crimes.
More High-Tech Surveillance?
Beyond inadvertent or intentional errors that cloud the routine work of determined investigators and prosecutors who rely on new access to massive DNA databases, the mass collection of DNA records raises troubling concerns about the government’s willingness to limit its own intrusive behavior. Consider the case of warrantless wiretaps. The Supreme Court has lately tolerated easy access to phone and internet records by law enforcement personnel. Will the court limit access to newly expanded DNA databases when it doesn’t consider your private email off limits? We’ve recently seen the IRS use its investigative power for political purposes – will federal agencies avoid tapping into the DNA database in pursuit of political agenda?
Criminologists have lately explored the idea that chronic criminals can be identified by their DNA (University of Texas, Dallas). Scientists and ethicists have cautioned against policy initiatives based on DNA research (New York Times). Social factors that could contribute to patterns of crime could coincide with DNA markers. Members of various ethnic groups may have higher propensity to criminal involvement due to social or political backgrounds, but patterns of DNA markers could be construed to suggest some other cause — something suggestive of fundamental personal flaws. What if police or lawmakers began targeting communities by those DNA profiles?
With the rise of predictive policing technologies that use data research to assist police in targeting high crime areas, why not focus police work toward areas where those with high-crime DNA are likely to congregate? Why not screen arrestees for high-crime DNA indicators, and perhaps offer those individuals “treatment” – maybe therapy, medication or enhanced supervision? And why not use newly assembled DNA databases to figure out which DNA profiles to target?
As with most Supreme Court rulings, legislatures still get the last word. State legislatures or Congress could pass new laws that outlaw or regulate DNA testing of arrestees. They can set limits on who is tested, and define strict controls to prevent mistakes. Elected bodies can take action to assure the privacy of DNA records, and prevent the use of federal or state DNA databases in research that could lead to abusive practices.
So far, DNA samples of 10 million people previously convicted of a crime and 1.3 million who were tested after an arrest are already documented in federal computer databases. Of 28 states that already allow some form of DNA testing, 13 only allow DNA collection from those arrested for a felony. Others limit DNA testing to only those accused of certain felonies, according to a group that advocates for DNA testing laws.
Maryland’s law, which was at the center of the Supreme Court case, allows DNA testing for those arrested on “serious offenses,” which are defined as violent crimes and burglary. Analysts questioned whether the court’s reference to that distinction restricts collection in all cases. Dissenting justice Antonin Scalia called that detail a “senseless distinction” that would not prevent testing of anyone and everyone arrested. Scalia, a conservative justice, joined liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan in dissenting against the sharply divided 5-4 decision.
Strategy Session: Tulsa Criminal Defense Attorney
If you’ve been charged with a crime and police tell you they have DNA evidence, that’s not always the end of the story. You’ll need an aggressive criminal defense attorney who is able to review every aspect of the investigation, collection and testing process. To schedule your initial strategy session with a Tulsa criminal defense attorney about DNA evidence or any concern you may have about a pending legal matter, contact Wirth Law Office today at (918) 879-1681, or submit a written question through the form at the top right side of this page.
