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The Wrong Verdict On DNA Fingerprinting

JURIST Guest Columnist Jonathan Franklin, a partner with Fulbright & Jaworski L.L.P. and counsel to DNA Saves says that the Maryland Court of Appeals erred in its decision holding DNA identification is unconstitutional...

In 2003, a man broke into a 53-year-old woman's home in Salisbury, Maryland and raped her at gunpoint. The victim could not identify her attacker. However, his DNA "profile" — thirteen otherwise meaningless chemical markers that uniquely identify every person — was analyzed from his semen and uploaded to an FBI database. In 2009, Alonzo King was arrested on unrelated assault charges. He was subjected to traditional fingerprinting. He also underwent "DNA fingerprinting" under a 2008 Maryland law, which mirrors laws of 25 other states and the federal government [PDF]. A sample taken through a simple cheek swab was analyzed to determine the thirteen markers, which were compared with the FBI database. King was then identified as the Salisbury rapist and convicted. Another dangerous criminal was put behind bars through the powerful new technology of DNA fingerprinting.

That is, until the Maryland Court of Appeals decided to put a stop to it. Disagreeing with two federal circuit courts, Maryland's highest court held that the DNA profile taken upon King's arrest violated the Fourth Amendment's proscription against unreasonable searches. Because that profile was the only means of identifying King as the 2003 rapist, he will be put back on the streets to potentially terrorize future victims — unless the US Supreme Court sets the law straight. The Court should do so. The King decision improperly elevated arrestees' non-existent rights to shield their identities over the government's compelling interest in solving and preventing crime. DNA profiling serves the same purposes as traditional fingerprinting, which has never raised constitutional concerns. Like fingerprinting, DNA sampling under stringent legal protections is minimally intrusive and useful only for identification. The only difference is that it is a better means of identification that is more effective in protecting the public from recidivists like Alonzo King.

Because the cheek swab and sample analysis are viewed as "searches" under the Fourth Amendment, the question is whether they are "reasonable." To answer that question, the courts balance the degree to which the search intrudes upon individual privacy against the degree to which it is needed for legitimate governmental interests. Both the Third and Ninth Circuits have correctly held that DNA profiling of arrestees, just like traditional fingerprinting, is reasonable because the governmental interests in identifying criminals and preventing future crimes vastly outweigh arrestee's interests in withholding identifying information. Arrestees have diminished privacy expectations as compared to the general public. Based on determination of probable cause to believe they have committed crimes, arrestees are forcibly detained and can be subjected to numerous intrusions not faced by others. Arrestees are always required to provide multiple forms of identification, including fingerprints, photographs, and documents, which are then checked against other records. DNA identification is just as reasonable. A cheek swab is a de minimis inconvenience. Arrestees have no greater interest in withholding the identifying information used in DNA fingerprinting than in withholding traditional fingerprints.

Federal and state law contains strict requirements to ensure that DNA fingerprinting is used only for identification and that no other genetic information is ever obtained or used. The DNA profile gleaned from the biological sample is strictly limited to the thirteen markers — sometimes described as "junk DNA" — that were purposely selected because they are unrelated to any physical or medical characteristics. According to an opinion from the Third Circuit, "the use of 'junk DNA' creates a 'DNA fingerprint' that yields precise information about identity but little or no other personal information."

The federal Combined DNA Index System (CODIS) contains only an identifier for the agency that provided the profile, a specimen number, and the personnel associated with the analysis. Only the originating laboratory can identify an individual by name after a cold hit. So even if someone accesses the CODIS database, it is impossible to obtain the DNA profile of any specific person. Moreover, both federal and state laws require that arrestee DNA samples be used solely for identification purposes and mandate criminal penalties if information is used for unauthorized purposes. As a result, although the federal database has millions of profiles and the FBI has analyzed DNA for over twenty years, there is no recorded case of anyone ever making an unauthorized disclosure.

As shown by the King case, DNA identification gets results. The Ninth Circuit has indicated that DNA identification "is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects." As of March 2012, the federal database produced over 176,100 hits assisting in over 169,000 investigations. Adding arrestee profiles can catch repeat offenders before they strike again. Seventy percent of America's crime is committed by only six percent of criminals. DNA identification can also help exonerate the innocent, by quickly identifying the actual culprit while eliminating other suspects.

In prohibiting this powerful identification tool, the King court made two fundamental errors. First, although no arrestee has a privacy right to withhold his identity, the court mistakenly believed that identification simply means knowing a person's name. It believed Maryland could not take King's DNA profile because the state had no problems identifying him through traditional booking routines like fingerprints and photographs. Names are only one kind of identifying information. Traditional fingerprinting identifies a person by the lines on his fingers. Photography identifies a person by facial characteristics. Production of a driver's license identifies a person by the license information. Likewise, DNA fingerprinting identifies a person by a set of otherwise meaningless DNA markers. The markers are the person's identity. This serves the same purposes as a regular fingerprint, which are always taken even when the government already knows an arrestee's name through other means. The only difference is that DNA identification often does the job better. In either case, the process invades no legitimate privacy interests because only identifying information is obtained, which no arrestee ever has a legitimate right to conceal. Once that information is provided, it can be — and routinely is — used for other legitimate governmental interests, most notably to link the person to a prior crime. The actual evidence of criminal activity was voluntarily left at the crime scene in the form of fingerprints or discarded bodily fluids. The identifying fingerprint or DNA profile obtained upon an unrelated arrest is simply used to identify the arrestee as that perpetrator.

Second, the King court incorrectly relied on rank speculation that law enforcement might conduct additional analyses on the sample to learn other genetic information. In its view, although Maryland law "restricts the DNA profile to identifying information only, we can not turn a blind eye to the vast genetic treasure map that remains in the DNA sample retained by the State." This rationale is misguided because, quoting the Ninth Circuit Haskell decision, a court's "job is limited to resolving the constitutionality of the program before [it], as it is designed and as it has been implemented" and "courts base decisions not on dramatic Hollywood fantasies, . . . but on concretely particularized facts developed in the cauldron of the adversary process and reduced to an assessable record." A court "cannot legitimately weigh the constitutionality of the current legal regime by arguing about hypothetical and highly speculative actions" that would violate the law. The only "search" of an arrestee's DNA information occurs when the sample is analyzed to determine the identifying markers. There is no documented instance of anyone misusing samples for unauthorized purposes. However, if such an additional search were to occur, the courts could address it then.

The fears of abuse are also pure fantasy. CODIS contains only the thirteen "junk" markers, which are not associated with a name. Even if someone had access to CODIS, the only way to learn a specific arrestee's genetic information would be to: (1) find out where that person was arrested; (2) conspire with the arresting agency to access the physical sample; and (3) perform additional laboratory tests. There is no apparent reason why anyone would be motivated to do that. Further, it is entirely far-fetched to think that someone would risk criminal sanctions to carry out such an elaborate plot, which would be revealed as soon as the information was used. If someone truly had a nefarious reason to learn a person's genetic information, it would be far easier to test a strand of hair or another discarded sample.

We will never know the number of people whose lives will be saved, or crimes that will be prevented or solved, by arrestee DNA identification. But if even a single life is lost by prohibiting the use of this simple tool to identify recidivists before they strike again, that is one life too many. If there were real privacy interests at stake, perhaps these dire consequences would have to be tolerated. But, just as with traditional fingerprinting, no arrestee has a protected interest in concealing his identity so that he cannot be linked to crime scene evidence. Future victims and their loved ones should not have to suffer and grieve because recidivist criminals like Alonzo King want to hide their identities.

Jonathan Franklin is a partner with Fulbright & Jaworski L.L.P. and counsel to DNA Saves, a non-profit association formed by Dave and Jayann Sepich after their 22-year-old daughter Katie Sepich was brutally raped and murdered. The Sepichs learned that it was illegal in most states to take DNA at the time of booking as fingerprints are taken. Two years later, they began their mission to change legislation so that DNA would be taken at booking and uploaded into the national forensic DNA database. In 2008, they formed DNA Saves to educate legislators and the general public about the power of arrestee DNA identification.

Suggested citation: Jonathan S. Franklin, The Wrong Verdict On DNA Fingerprinting , JURIST - Sidebar, June 20, 2012, http://jurist.org/sidebar/2012/06/jonathan-franklin-dna-search.php

This article was prepared for publication by Stephen Zumbrun, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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