PROOF POSITIVE.

• Author: Lyons, Donna
• Position: DNA evidence, civil liberties

The newest key to cracking cases is DNA. But the challenge for states is how to tap its potential and also protect civil liberties.

The 1992 stabbing death of a Fairfax County, Va., shop-keeper was among those destined for a "cold cases" drawer. A 45-year-old mother was stabbed multiple times in what appeared to be a vicious attack and struggle. Although considerable physical evidence was collected at the crime scene, including blood that wasn't the victim's, detectives had few other leads to pursue.

But last year the case was cracked when DNA from the crime scene was matched to an offender profile. Under Virginia's law, all convicted felons are required to provide a DNA sample for the state's database maintained by the Division of Forensic Science. The defendant, who had been released from prison following a 1996 robbery conviction, has now pled guilty to the murder.

The "cold hit" was one of thousands in the states made possible by the advent of offender DNA databases. The enormous capability of forensic DNA has states scrambling to bring criminal justice policy and practice up to speed with the technology's power to aid investigations and solve crimes. At the same time, civil libertarians want to ensure that limits are placed on how far government can go in collecting samples and using them to identify suspects.

DNA evidence from a crime scene can be compared to several categories of individual samples. Suspects in ongoing investigations may agree to provide a sample or may be ordered by a court to do so. "Elimination samples" also are collected from the victim and from certain people who are not suspects. And crime scene evidence is routinely checked against the growing numbers of samples taken from convicted offenders.

"The more offender samples you have on hand, the greater the ability of law enforcement to identify suspects and protect the public," says Assemblyman Joseph Lentol of Brooklyn, N.Y., chairman of the Assembly Codes Committee. He says that repeat and sex offenders can be more readily identified by the state's DNA database since it was expanded from 21 crimes for which offenders must provide samples to 107.

All states have passed laws to require DNA collection from certain convicted sex offenders. In most, other serious offenders also are required to provide samples. Last year alone, at least nine states added crimes for which offenders are required to submit genetic samples.

So enthusiastic is law enforcement about the power of DNA to identify and eliminate suspects that the International Association of Chiefs of Police has taken the bold step of endorsing the collection of DNA samples from inidividuals at the time of arrest. They also encourage federal funding to support state and local efforts, as well as safeguards to pre vent misuse of samples.

Louisiana authorized taking samples from people arrested for sex offenses and other serious crimes in 1997 but delayed implementation until a state crime laboratory could be funded and properly equipped. An appropriation expected this year would help move the state to ward the unprecedented practice. New York also has had proposals to add samples of those arrested for certain crimes to the state's database, but Lentol says the catch-up mode they find them selves in right now is overwhelming the idea of requiring more samples. In New York and elsewhere, labs have had difficulty keeping up with increasing numbers of offender samples.

Sampling arrestees, not just those convicted, also raises privacy concerns. "A caution flag must be raised on proposals to take DNA samples from people who have been arrested but not convicted," says Lentol. He said that any such move would require thorough consideration of the legal ramifications.

Courts routinely have upheld state laws applying to convicted offenders. But how courts would treat samples from people who are arrested, but who may or may not be charged and convicted, is still uncharted territory. It seems likely that this would prompt review under the Fourth Amendment's protection from unreasonable search and seizure. This brave new world bridging the human genome and the police precinct prompts privacy concerns even among big supporters of state databases.

GENETIC DRAGNETS

State legislation has not specified that suspect, victim and other elimination samples given for one particular investigation be compared to other DNA evidence in government databases, warns defense attorney and law professor Barry Scheck of the Cardozo School of Law in New York. Yet some police departments have sought to solve certain crimes by carrying out "genetic dragnets" in which saliva swabs are collected from many acquaintances, neighbors and other people who knew or associated with the victim. This practice raises the issue of whether individuals are giving samples voluntarily or if they are intimidated at the possibility of becoming a suspect if they refuse. Observers also warn that it creates the possibility of "suspect databases" containing samples from people taken for no, reason other than their having lived in a particular neighborhood or having been a patron or employee at some place of business.

A Justice Department National Commission on the Future of DNA Evidence that has been at work the past five years has discussed--but thus far has deferred judgment about the wisdom of--taking DNA samples from arrestees. The group's executive director, chris Asplen, says the issue isn't ripe until retrieval of DNA evidence is a routine part of police procedure, and state and local labs are able to process the samples now provided for under current laws. The commission recently published a law enforcement guide to help in training officers on common items that may contain DNA evidence, along with procedures to safely handle and transport that evidence.

"Some 12 million people will be arrested in this country this year. Clearly it is not yet feasible to think about profiling that many more samples," says Asplen. There currently is a backlog of some half a million unanalyzed samples collected from convicted offenders, according to the FBI, and there are an estimated 1 million more samples that haven't even been collected yet.

UNFUNDED MANDATE

Backlogs occur because, in most cases, DNA offender databases were created without the lab funding to support that work. "You could call it an 'unfunded mandate,'" says Asplen. Most state and local forensic labs were designed and equipped for crime-scene...