Expanding the DNA Databases - LegalIssuesMitch Morrissey - Denver District Attorney
Constitutional Considerations• The Fourth Amendmentprovides that “[t]he right ofthe people to be secure intheir persons, houses, papers,and effects, againstunreasonable searches andseizures, shall not be violated. . . .”• The touchstone of the FourthAmendment is‘reasonableness’.
Constitutional Considerations• The collection, analysis andstorage of blood or saliva forany purpose is a search andseizure within the meaningof the Fourth Amendment.• Any DNA database statutethat involves the collectionof DNA from individualsmust meet constitutionalstandards.• DNA databases aremaintained by every state.
DNA Database Law• The DNA Analysis BacklogElimination Act of 2000required those convicted of a“qualifying Federal offense”to provide DNA.• Qualifying federal offenseswere limited to violentcrimes, such as murder,voluntary manslaughter, andsexual abuse.
DNA Database Law• In 2004, Congress passed theJustice For All Act of 2004,which allows the collection ofDNA from anyone convictedof a Federal felony.• DNA information must beexpunged from the system ifthe conviction is reversed ordismissed.• These statutes have beenchallenged in almost everyfederal district in the US.
Proper Disclosures of DNA Profiles• To criminal-justice agenciesfor law enforcementidentification purposes• In judicial proceedings ifotherwise admissible• To a criminal defendant forcriminal-defense purposes• For a population-statisticdatabase for identificationresearch and protocoldevelopmentpurposes, or forquality-control purposes, ifpersonally-identifiableinformation is removed.
Improper Disclosure of DNA Profiles• Those who violate disclosureprovisions could have theiraccess to CODIS cancelled,and face a criminal penaltyof up to $250,000 and oneyearimprisonment for eachinstance of disclosure.
Courts Uphold DNA Database Laws• Arrestees have diminishedprivacy rights• A blood test or cheek swabimposes only a minimalintrusion• The government has alegitimate interest in solvingpast and future crimes byusing DNA evidence insubstantially the samemanner as fingerprintevidence.
Court Rulings on DNA Database• What is reasonable underthe Fourth Amendment fora person under arrest orunder supervision as afelon, may be unreasonablefor the general population.Laws
Familial DNA Database Searchesand Partial Match Investigations• Investigators use theDNA database to searchfor near matches to solvecrimes committed byrelatives of the people inthe database.• The fundamentalprinciple is that DNAprofiles of people who arerelated are likely tocontain similarities.