What do the topics in the title of this blog post have in common? They were the focus of the students’ criminal justice presentations this week. Nine teams of students, two on each team, have been researching and preparing their presentations throughout the semester. Here are some of my takeaways from the first set of presentations. Continue reading
Tag Archives: DNA
The State of North Carolina goes to trial against Donnie Defendant, who is alleged to be the infamous “Tarheel State Killer” and charged with committing a series of brutal assaults and murders several decades ago. The state’s case depends heavily on matching DNA evidence from the crime scene to a sample of DNA taken off a cigarette butt discarded by Donnie. At trial, Special Agent Wanda Witness testifies as an expert in forensic DNA analysis for the state. After explaining the science behind PCR, STR, loci, and markers, Wanda opines that Donnie’s DNA is indeed a match to the DNA recovered from the crime scene.
Sounds like good news for the state, but what exactly does a “match” mean? And how may the significance or statistical probability of that “match” be expressed to the jury? It’s an important question, because what might sound like two similar ways of expressing the same probability can have dramatically different meanings – and possibly even be considered error on appeal.
Supreme Court Upholds Taking DNA Upon Arrest
Yesterday the Supreme Court decided a case that one Justice called “perhaps the most important criminal procedure case that this Court has heard in decades.” A bare majority of the Court ruled that the police may take DNA from those arrested for, but not yet convicted of, “serious offense[s].” The case resolves a deep split among the lower courts; mostly resolves the constitutionality of the DNA-on-arrest statutes of 28 states, including North Carolina; and according to the dissent, is so deeply mistaken that if it is not wrong, “there is no such thing as error.” The case is Maryland v. King.
History. The defendant was arrested for a felony assault after menacing a group of people with a shotgun. Maryland law provides that DNA must be collected from those arrested for burglary or a crime of violence. (As in many other states, if the proceedings don’t end with a conviction, the DNA sample is destroyed, and there are safeguards associated with the use of the DNA profiles, such as a prohibition on using the DNA for purposes other than identifying those who committed a crime.) Accordingly, as part of the booking process, officers took a sample of the defendant’s DNA by swabbing the inside of his cheek. The defendant’s DNA profile was subsequently tested, and matched that from a previously unsolved rape. The defendant was charged with the rape and moved to suppress the DNA results, asserting that the officers conducted an unlawful search by collecting the sample. The trial court denied the motion and the defendant was convicted. The defendant’s appeals eventually led to the Supreme Court.
Outcome and lineup of Justices. A five-Justice majority ruled for the state. As is often true in Fourth Amendment cases, the lineup did not follow traditional political lines: Justice Kennedy wrote the majority opinion, joined by the Chief Justice and Justices Alito and Thomas . . . and Justice Breyer. Justice Scalia dissented, joined by Democratic appointees Justices Ginsburg, Kagan, and Sotomayor.
Majority opinion. The majority acknowledged that taking DNA is a search for Fourth Amendment purposes, and that a warrant, or at least some level of individualized suspicion, is usually required for searches. However, it noted that individualized suspicion is not always required, and ruled that it should not be required in this context given the minimal nature of the intrusion; the fact that the arrestee has already been taken into custody and so has a reduced expectation of privacy; and the important law enforcement interests served by DNA collection, including properly identifying the arrestee, potentially unearthing his true criminal record, and thereby being able to set appropriate conditions of release.
The majority also compared DNA analysis to less advanced identification techniques, such as photographing and fingerprinting, that are routinely used during the booking process. The Court reasoned that if those techniques generally are permissible under the Fourth Amendment, so too should DNA collection be allowed. Granted, DNA analysis is not as fast as fingerprinting and so may be less useful for rapid identification. But fingerprinting was not always fast, and DNA analysis is getting much faster, with new equipment expected to accelerate the process further.
Finally, the majority attempted to limit the scope of its ruling. First, it stated that “the necessary predicate of a valid arrest for a serious offense is fundamental.” Second, it noted that there was little risk that the collected DNA will be misused, since the sections of DNA analyzed contain only identifying information (not personal or health information) and the law strictly limits the purposes for which DNA profiles may be accessed.
Dissenting opinion. The dissent is classic Justice Scalia in high dudgeon, and he read the dissent from the bench in a show of dismay. Early on, he summarized: “Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime. It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.”
The dissent attacked the majority’s claim that DNA analysis is useful for the identification of defendants, noting (1) that DNA testing can’t be conducted under Maryland law before arraignment, and so necessarily will not be available at the earliest pretrial stages, when the defendant’s identity is most likely to be in question, (2) that in fact DNA analysis wasn’t conducted in this case until several months after the defendant’s arrest, far too late to serve any identification purpose, and (3) that the resulting profile was submitted to CODIS, the nationwide DNA database, as the known sample of the defendant – not as a sample of an unknown, yet-to-be-identified individual.
As to the fingerprint analogy, Justice Scalia argued that fingerprinting is actually used to identify arrestees at or near the time of arrest, unlike DNA. And he questioned whether fingerprinting might not also be a Fourth Amendment search that should be permitted only with individualized suspicion, noting a lack of case law on point.
Finally, the dissent appealed to the risk of a slippery slope. The majority ruled that DNA collection is allowed only in connection with “serious offenses,” but the dissent noted that all criminal defendants need to be identified, not just those charged with major crimes, and so predicted that the ruling will later be extended. In fact, the dissent continued, identifying people would be helpful in a variety of contexts, so King opens the door to taking DNA samples from everyone who flies on an airplane, applies for a driver’s license, or attends public school.
Comments from others. The ACLU doesn’t like the ruling. A couple of big name constitutional law scholars do. Professor Orin Kerr thinks the case is important practically but not doctrinally and that the dissent is “overheated.” SCOTUSblog has a summary here.
My comments. King raises as many questions as it answers. First, what counts as a “serious offense” for which DNA collection on arrest is permitted? The Court didn’t say. It upheld Maryland’s law, which includes violent crimes and burglaries, but never said that was the constitutional floor. State DNA laws vary quite a bit in this regard. North Carolina’s statute, G.S. 15A-266.3A, limits DNA collection mainly to arrests for very serious crimes. But what about the collection of DNA upon arrest for the misdemeanor offense of cyberstalking? King casts some doubt on the propriety of that.
Second, is DNA collection upon arrest permitted only when authorized by a statute? In other words, may an officer in a state without a DNA-on-arrest statute nonetheless collect a sample of a murder arrestee’s DNA as part of the booking process? Or may an officer in a state with a statute, like North Carolina, collect DNA from a person arrested for a serious offense that is not listed in the statute, such as drug trafficking or a Class C embezzlement? Much of King’s rationale, including its discussion of the minimal nature of the intrusion and the arrestee’s reduced expectation of privacy, would apply even absent a statutory mandate requiring the collection of DNA. But the Court also emphasized the safeguards present in Maryland’s statute and its nondiscretionary nature. Without those, the outcome may have been different. At this point, I would advise officers to collect DNA only pursuant to the statute or a court order.
Third, must an arrestee’s DNA be destroyed and his DNA profile removed from law enforcement databases if he is not convicted? That was a feature of Maryland’s law, and it is in North Carolina’s statute as well. Apparently it is currently a requirement for states that participate in CODIS, as discussed in this helpful summary by the Urban Institute. But fingerprints taken upon arrest normally aren’t destroyed if charges are dismissed or the defendant is acquitted, and it isn’t clear whether that specific safeguard is constitutionally required for DNA.
Finally, are there other technologies that might fall under the rationale of King? Could the police take an arrestee’s retinal scan as a routine matter? Could they take a sample of an arrestee’s voice for voice biometrics?
As always, I welcome others’ thoughts, comments, and ideas.
Evaluating The Circumstantial Murder Case
In recent years there has been a spate of cases assessing the sufficiency of the evidence in murder prosecutions where the State’s case is built on circumstantial evidence. A recent decision by the court of appeals in State v. Carver should make prosecutors happy while frustrating the defense.
The majority described the facts of Carver as follows. The victim was found dead near her car on the shore of the Catawba River. The defendant and his cousin were fishing nearby. The victim had been strangled with a ribbon from a gift bag in her car, the drawstring of her sweatshirt, and a bungee cord similar to one in her trunk. DNA samples from the car matched to the defendant and his cousin. When the defendant was confronted with this evidence, he denied, as he repeatedly had done before, ever seeing or touching the victim or her car. Despite his statements that he had never seen the victim, the defendant told officers that the victim was a “little thing” and demonstrated her height relative to his own.
After a jury found the defendant guilty of first-degree murder, he appealed arguing that there was insufficient evidence that he perpetrated the murder. A divided panel of the court of appeals disagreed and upheld the conviction. The majority found persuasive State v. Miller, 289 N.C. 1 (1975), a case it characterized as holding that “the existence of physical evidence establishing a defendant’s presence at the crime scene, combined with the defendant’s statement that he was never present at the crime scene and the absence of any evidence that defendant was ever lawfully present at the crime scene, permits the inference that the defendant committed the crime and left the physical evidence during the crime’s commission.” It thus concluded: the defendant’s “denial and the DNA’s contradiction thereof . . . are sufficient to establish that the DNA could only have been left at the time the offense was committed.” Although no evidence of motive was presented, the court rejected the defendant’s argument that lack of motive supported his appeal.
Judge Hunter dissented, concluding that the absence of evidence of motive and opportunity were fatal to the State’s case. Judge Hunter noted facts not mentioned by the majority. Specifically, when the police responded to the scene, they saw the defendant loading fishing equipment into his car but did not question him at that time. The defendant later returned to the scene and asked police if he could retrieve fishnets he left while fishing earlier. He was denied access. At least five other people were near the area, one of whom discovered the victim’s body. No DNA sample was taken from the man who discovered the body. Only after the police canvassed surrounding areas did a detective speak to the defendant at his home and learn that he was fishing near where the victim was found. The defendant was not arrested or identified as a suspect at this time. Hunter noted that no evidence indicated that the defendant traveled the path between his fishing location and the victim’s car, placed him in the car, connected him to the items used to kill the victim, or indicated that he ever touched the victim. Furthermore, the coroner could not determine the time of death, making it, in Hunter’s view, unreasonable for a jury to have inferred that the victim died in the time frame when the defendant was fishing on the river. Hunter took issue with the majority’s emphasis on the fact that the defendant’s DNA was found on the victim’s vehicle. He criticized the majority for failing to mention that the DNA was touch DNA and only placed the defendant on the outside of the car. He characterized touch DNA, which is gathered from skin cells, as being a relatively new testing procedure and not as accurate as blood or saliva DNA testing. He also noted that the defendant’s cousin’s touch DNA was found on the inside of the car.
Judge Hunter did not think Miller was controlling. He read Miller as requiring that fingerprint evidence be “accompanied by substantial evidence of circumstances from which the jury can find that the fingerprints could only have been impressed at the time the crime was committed” before allowing the inference that the defendant must have been present during the commission of the crime. Here, the only evidence indicating that the defendant left the touch DNA on the car at the time of the murder is that he happened to be fishing near the location where the victim’s body was found. There was no other evidence tying the defendant to the crime scene. Moreover, Hunter found Miller distinguishable in that it involved fingerprint evidence not touch DNA. He noted that the defendant’s touch DNA could have been left on the car through secondary skin cell transfer by another person, something that can’t happen with fingerprints. Also, citing testimony by the State’s expert witness, Hunter concluded that touch DNA simply isn’t as reliable as fingerprint evidence. He stated: “With such little guidance on the accuracy of touch DNA combined with the fact that the defendant’s touch DNA was found on the outside of the victim’s mobile car and could have been left at any time, I cannot apply the rule in Miller here because I cannot equate fingerprint and touch DNA analysis.” For these reasons, Judge Hunter concluded that the State’s evidence presented only a suspicion or conjecture of guilt that the defendant alone murdered the victim.
This case is a clear win for the State. But the dissent makes champagne popping by the prosecution premature as there will likely be an appeal to the N.C. Supreme Court. In the meantime, if you’d like to review related cases decided in recent years, see my Criminal Case Compendium here. Look under the heading Criminal; Motions; Motions to Dismiss; Defendant as Perpetrator.
Ninth Circuit DNA Collection Case
As most readers of this blog are aware, S.L. 2010-94 creates a new statute, G.S. 15A-266.3A, which provides for the collection of a DNA sample from anyone arrested for a laundry list of offenses, most but not all of which are felonies, and most but not all of which are violent crimes. Under some circumstances, such as if the defendant is acquitted or charges are dismissed, the DNA sample and the record thereof must be destroyed.
I’ve posted previously — here and here — about this issue. The Ninth Circuit recently decided an important case about a somewhat similar federal provision, and I thought I’d mention it for folks who are interested.
The case is United States v. Pool, and the short version of the facts is as follows. The defendant, who had no prior record, was arrested and charged with possessing child pornography. A magistrate judge found probable cause to support the charges and released the defendant on an unsecured bond, subject to various conditions, including that he provide a DNA sample. The defendant challenged the DNA condition.
A bit of legal background about the federal DNA scheme: the collection of DNA samples upon pretrial release is required by 18 U.S.C. § 3142(b), for the class of cases prescribed by the Attorney General in regulations promulgated under 42 U.S.C. § 14135a. The regulations now provide that “[a]ny agency of the United States that arrests or detains individuals or supervises individuals facing charges shall collect DNA samples from individuals who are arrested.” 28 C.F.R. 28.12(b). (At least, I think that’s how it works. As you can tell, it’s a bit of a complicated trail to follow.) So the law appears to provide for the collection of DNA upon arrest from all federal defendants, but in this particular case, it appears that no DNA had been taken prior to the defendant’s release.
Anyhow, the federal magistrate judge upheld the DNA condition, as did the district court judge. The Ninth Circuit did, too. Essentially, it found (1) that the collection of DNA is a Fourth Amendment search, (2) that a “totality of the circumstances” analysis is appropriate — rather than the automatic imposition of a warrant requirement — given the restrictions on liberty that are associated with being a criminal defendant, (3) that the DNA condition was not terribly intrusive, because the 13 markers analyzed as part of the process are not associated with any known medical or physical characteristics, and (4) that the government has a strong interest in the collection of DNA, both to identify the defendant and to ensure that the defendant, who was about to be released, had not committed other crimes.
By its terms, the court’s holding extends only to cases in which “a court has determined that there is probable cause to believe that the defendant committed a felony.” So it doesn’t address the propriety of DNA collection before a probable cause finding, and one of the two judges in the majority wrote a concurrence emphasizing that the probable cause finding is “highly significant” and that the collection of DNA from “mere arrestees” was not before the court. And one judge dissented altogether, arguing that “[n]o circuit has ever before approved such a warrantless search or seizure before an individual has been convicted of any crime.”
Obviously, a case from the Ninth Circuit doesn’t bind our courts, and in any event the issue before the Ninth Circuit was slightly different than the issue that may be posed by G.S. 15A-266.3A. Still, the Pool opinions are detailed and thoughtful, collect a significant amount of relevant authority, and are a worthwhile read for folks who are interested in, or are preparing to litigate under, our new statute.
Collecting Arrestees’ DNA
The News and Observer reports today on “a proposal to collect DNA from suspects when they are arrested for felonies or violent crimes.” The bill in question is H1403, and it states that “any person who is arrested for committing a felony must provide his or her DNA sample . . . for . . . analysis and testing.” (I don’t see anything about “violent crimes” in the bill.) Readers will not be surprised to learn that the Attorney General supports the bill, while the ACLU is against it.
I’ve blogged about this idea before. A similar bill was introduced last session, and I discussed the issue in this post. I noted that the constitutionality of this type of law isn’t settled, and I won’t repeat the analysis here. Instead, I’ll note that officers already obtain DNA samples from arrestees in many cases. Sometimes this isn’t controversial, as when an officer takes a hair sample with the arrestee’s consent, or when the officer obtains a search warrant to draw the arrestee’s blood.
But I recently had an interesting email exchange about a practice that may be controversial, namely, the taking of biological material as part of a search incident to arrest. Our appellate courts have suggested that the authority to obtain biological material incident to arrest is quite broad. For example, in State v. Steen, 352 N.C. 227 (2000), the court said that it had “approved warrantless seizures of hair and saliva samples from a defendant incident to his arrest,” and “upon the [apparently separate] basis of the defendant’s being in police custody.”
But I am not sure that Steen — a rape and murder case — should be read to suggest that hair and saliva samples can be taken from any and all arrestees. What would be the basis for taking samples from a defendant arrested for a motor vehicle crime, or for tax evasion, or for some other offense for which biological evidence is extremely unlikely to be relevant? The search incident to arrest doctrine is designed to enable officers to find weapons and to prevent the destruction of evidence. Taking a hair sample doesn’t help find weapons, and of all the evidence a defendant can’t destroy, his own DNA is at the top of the list. One commentator puts it as follows:
[I]t may be appropriate to ask whether procedures of this type should be deemed lawful merely because the subject was in lawful custody, or whether instead such . . . undertakings should not also require some additional showing. In the main, the relevant cases are not helpful on this issue; generally, it may be said that although they do not expressly assert a requirement of probable cause that the procedure will produce evidence of a crime, such probable cause was in fact present. But even if courts are not prepared to require a showing of probable cause for search above and beyond the probable cause for the preceding arrest, it is to be doubted that procedures of the type [at issue] would be upheld in a case where there is no rational basis for arguing that the objective was to find evidence of the crime for which the person was in custody.
3 Wayne R. LaFave, Search and Seizure § 5.3(c) (4th ed. 2004). Given the Supreme Court’s recent narrowing of the search incident to arrest doctrine in Arizona v. Gant, I tend to agree that Steen and the other cases in the same vein, such as State v. Thomas, 329 N.C. 423 (1991), and State v. Cobb, 295 N.C. 1 (1978), do not amount to carte blanche to take DNA from arrestees. Of course, H1403 would provide carte blanche for felony arrestees, if it passes.
It’s time to round up some news.
First, the News and Observer recently commented on President Obama’s failure to nominate any additional North Carolinians for the Fourth Circuit — a court on which Tar Heels are wildly underrepresented — despite several vacancies. Of course, the White House has been moving rather deliberately on judicial nominations in general, as discussed here.
Second, I’ve previously noted — here and here — the Willingham case, in which Texas may have executed an innocent man. The City of Corsicana has submitted its papers to the commission reviewing the case. A bit of commentary on the papers, and a link to the document itself, is available here.
Third, the effect of North Carolina’s sex offender laws on offenders’ ability to go to church is drawing national attention, as evidenced by this AP story.
Fourth, in light of North Carolina’ own litigation over lethal injection and the administration of the death penalty, readers may be interested in what’s happening in Ohio in the aftermath of the failed execution of Romell Broom. (Despite hours of trying, prison staffers were unable to get an IV line working, leading to the abandonment of the execution.) Apparently, the state is considering dramatic changes to its execution protocol, including a change in the combination of drugs used, a change in the method of injection (to intraosseous injection), etc. Sentencing Law and Policy is all over this issue; the most recent post, with links to earlier ones, is here.
Finally, another midwestern state making criminal law news is Indiana. An appellate court there recently ruled that a cheek swab for DNA is so minimally intrusive that it can be done without a warrant and on reasonable suspicion. A summary and critical analysis of the decision is here.
Several interesting news items have cropped up recently.
First, the United States Supreme Court decided District Attorney’s Office v. Osborne, in which a 5-4 majority ruled that there is no constitutional right to post-conviction DNA testing. Having slogged through the whole decision, my sense is that it will have limited impact in North Carolina given the existence of G.S. 15A-269, which provides such a right, under certain circumstances, by statute. I did, however, find the reasoning to be noteworthy. In part, the majority concluded that there is no such constitutional right because most states have provided for post-conviction DNA testing by statute. So if most states weren’t providing for testing, would there be a constitutional right to it? It seems odd to say — outside the Eighth Amendment context, anyhow — that the content of the Constitution depends on what one or another state legislature happens to have done. In any case, if you’re hungry for more, but not hungry enough to read the opinion, you can check out this New York Times story.
Second, a federal judge in Utah recently ruled that a defendant charged with possessing a firearm after having been convicted of a crime of domestic violence in violation of 18 U.S.C. § 922(g)(9) is entitled to raise, as an affirmative defense, the argument that he poses no elevated danger and so is constitutionally entitled to possess a firearm in his home. The judge’s opinion is available here, and a post at the Volokh Conspiracy blog about the opinion is here. It doesn’t take a rocket scientist to imagine defendants who are prohibited from possessing firearms for other reasons advancing variants of this argument in their cases, but it’s the first case I’ve seen on point.
Third, the Utah case isn’t the only recent fallout from the Supreme Court’s decision in Heller v. District of Columbia. According to a Washington Post article, the District itself has recently revamped its gun laws, allowing residents to possess certain firearms in their homes upon passing a written safety examination.
Fourth, the News and Observer is reporting that Court of Appeals Judge Jim Wynn may be nominated (again) to the Fourth Circuit.
Finally, a human interest story. I live in Durham, and for the past few years, I’ve coached the debate team at Durham Academy. We’ve had some terrific debaters in that time, including several state champions. Last week, for the first time, two Durham Academy debaters — Josh Zoffer and Robert Kindman — won the national championship. They’re juniors, so look for them in the law school class of 2017.
Post-Conviction DNA Testing Heats Up
Editor’s note: A previous post concerning a United States Supreme Court case about post-conviction DNA testing appears here.
Recently, I’ve been getting a lot of calls about requests for post-conviction DNA testing. Since there seems to be a bit of confusion about how these requests should be made and handled, I thought it might be helpful to set out the relevant procedures. I’ve tried to address all of the questions that folks have asked me about but if I’ve missed something, let me know.
Generally. G.S. 15A-269, -270, and -270.1 set out the procedures for a defendant’s post-conviction request for DNA testing of biological evidence. Requests for post-conviction DNA testing should be made pursuant to these provisions, not the motion for appropriate relief procedures.
Initiation of the proceeding. The proceeding begins when the defendant makes a motion, in the trial court that entered judgment, for DNA testing of biological evidence.
Counsel. The court must appoint counsel for indigent defendants. The statute does not indicate when counsel should be appointed. The most plausible options seem to be: (1) appoint counsel only after testing is ordered; or (2) appoint counsel upon the filing of the motion. If the court chooses the second option, it may wish to have counsel file an amended motion so that the defendant’s arguments for testing are asserted as clearly as possible.
Evaluating the motion. The statute does not say whether a hearing is required on the motion; the statute only mentions post-test hearings, discussed below. The statute says that the court must grant the defendant’s motion if:
- The evidence is material;
- The evidence is related to the investigation or prosecution that resulted in the judgment;
- The evidence either was not previously DNA tested or, if it was tested, the requested test would provide results that are significantly more accurate and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results;
- If the testing being requested had been conducted on the evidence, there is a reasonable probability that the verdict would have been more favorable to the defendant; and
- The defendant has signed a sworn affidavit of innocence.
State v. Brown, 170 N.C. App. 601 (2005), suggests that the statute does not authorize testing to establish the lack of biological material e.g., the lack of semen on a rape victim’s clothes. Brown explained that the statute provides for the testing of biological evidence, not for the testing of any evidence to establish the lack of biological material.
Time for and method of testing. If testing is ordered, it must be done as soon as practicable. The statute does not state whether the testing must be done by the SBI or whether the testing may be done at some other facility of the defendant’s choosing. This omission is surprising given that the related provision in G.S. 15A-267, dealing with pretrial defense motions for DNA testing of biological material, expressly identifies the SBI as the entity to perform the DNA testing and DNA database comparisons.
“Time out” for testing. If a miscarriage of justice will otherwise occur and DNA testing is necessary in the interests of justice, the court must order a delay of the proceedings or execution of the sentence pending the DNA testing.
Post-test hearing. Upon receiving the test results, the court must hold a hearing to determine if the results are unfavorable or favorable to the defendant. If the results are unfavorable to the defendant, the court must dismiss the motion. If the results are favorable to the defendant, the court “shall enter any order that serves the interests of justice,” including one that vacates and sets aside the judgment, discharges an in-custody defendant, resentences the defendant, or grants a new trial.
Costs of testing. The statutory provisions regarding costs are inconsistent. G.S. 15A-270 provides that if the test results are unfavorable and the defendant is not indigent, the court must assess costs to the defendant. However, G.S. 15A-269 provides that the defendant bears the cost any DNA testing that is ordered unless the defendant is indigent. The latter provision suggests that non-indigent defendants bear the cost of testing, regardless of whether the results are favorable or unfavorable; the former suggests that such a defendant bears the cost of testing only when the results are unfavorable.
Appeal. G.S. 15A-270.1 provides that a defendant may appeal an order denying a motion for testing.
An interesting article appeared yesterday in the New York Times. You can read it here, but the gist of it is that the federal government and about 15 states are now collecting DNA from people who are charged with certain crimes, usually felonies, even if the individuals are not convicted. As the article observes, this raises some interesting legal questions, including whether the routine seizure of DNA from defendants who are not convicted violates the Fourth Amendment. There’s a Congressional Research Service report on this issue, available here, which concludes as follows:
This expansion is likely to alter the Fourth Amendment analysis in DNA collection cases. In cases upholding DNA collection laws, courts relied in part on the reduction in privacy rights that accompanies post-conviction punishment under Fourth Amendment precedent. For people whom the government has arrested but not yet convicted, it appears that this reduction in privacy rights either does not apply or applies to a lesser extent.
North Carolina law currently provides for the routine collection of DNA only of convicted defendants. See G.S. 15A-266.4 (providing for the collection of DNA upon conviction of any felony, assault on a handicapped person, stalking, or sexual battery). As far as I can tell, the statute has never been challenged, and challenges to similar statutes in other jurisdictions have generally been rejected. Courts uphold DNA collection from convicted defendants either on a “special needs” rationale or on a Terry-esque theory that the minimal intrusion of a blood draw is justified by the substantial benefit to law enforcement in maintaining a DNA database. See Wayne R. LaFave, Search and Seizure, s. 5.4(c) (4th ed. 2004).
Soon, however, North Carolina may jump on the bandwagon of collecting DNA from people who are charged but not convicted. HB 1403 would require the collection of a DNA sample upon arrest; you can see the current version of the bill here. (While we’re on the subject of DNA and the General Assembly, HB 1190 would alter the rules for retaining and preserving DNA and other biological evidence; it makes some substantial changes and clarifications and is probably worth a gander, especially as it has bipartisan sponsorship. You can see it here.)
This sets up a possible Fourth Amendment showdown, but the conclusion of the Congressional Research Service isn’t the only plausible view. Consider the fact that North Carolina, like many other states, permits the collection of other identifying information from people who have been charged but not convicted. For example, G.S. 15A-502 provides that any arrestee may be fingerprinted and photographed, even if arrested for a misdemeanor, regardless of the disposition of the case. And it requires that defendants who are charged with felonies shall be photographed and fingerprinted, again, regardless of disposition. I’m not aware of any great controversy about fingerprinting, and I can imagine a court concluding that taking DNA (or “genetic fingerprinting) isn’t really any different.
What do you think? Leave a comment to weigh in.