The double-helix double-edged sword: comparing DNA retention policies of the United States and the United Kingdom.

• Author: Deray, Erica Solange

ABSTRACT

Forensic scientists have used DNA profiling technologies to link suspects to crimes since Alec Jeffreys first proposed the idea in the 1970s. Recognizing the potential for using DNA databases to solve crimes and to prevent future crimes, England and Wales attempted to greatly expand its DNA database by allowing for the collection and indefinite retention of DNA profiles from arrestees. The European Court of Human Rights, however, issued a ruling in 2008 in the case of S. & Marper v. United Kingdom, advising the United Kingdom to restrict use of DNA profiles from arrestees and to establish time frames for removal of this information from databases. Conversely, in the United States, federal and state legislation have become increasingly expansive and many states and the federal government now allow for collection of DNA samples from arrestees. This Note considers the evolving United States laws governing DNA databases in light of the Marper decision and proposes placing limits on the ability of law enforcement to use and retain DNA profiles from arrestees.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. An Overview of DNA Technology B. The United Kingdom 1. History of Forensics in the United Kingdom 2. The S. & Marper v. the United Kingdom Decision 3. Responses to Marper: Changing Approaches to DNA Retention C. The United States and Forensic Science Legislation 1. History of DNA in the United States 2. Judicial Decision-Making Regarding DNA D. Alternative DNA Collection Practices III. ANALYSIS A. Privacy Concerns B. Innocent Until Proven Guilty C. The Implications of Indefinite Retention of DNA Profiles IV. SOLUTION V. CONCLUSION It is impossible for a criminal to act, especially considering the intensity of a crime, without leaving traces of his presence.

--Edmond Locard (1)

1. INTRODUCTION

   Criminal investigations have increasingly come to rely on the use of technology and scientific advancements to identify suspects and solve crimes. (2) At the center of this movement is the use of DNA profiling to link suspects with crimes and to exonerate convicted individuals by excluding them as possible sources of DNA collected from crime scenes.3 DNA collection from individuals in the criminal context occurs under essentially one of four possible policies: (1) collection of DNA only from individuals who are charged and convicted of crimes; (2) DNA collection from arrestees with indefinite retention of DNA profiles on a database; (3) DNA collection from arrestees with removal of DNA profiles upon request; and (4) DNA collection from arrestees with automatic expungement.

   England is at the forefront of the movement to use DNA to solve crimes, and the England and Wales National DNA Database is the largest forensic database in the world. (4) Recognizing the potential for using DNA to solve crimes and to prevent future crimes, England attempted to greatly expand its DNA database by allowing for the collection and indefinite retention of DNA profiles from arrestees. (5) Collecting and retaining DNA from individuals who were not convicted of a crime raises concerns about the privacy interests of the individual versus possible benefits to society. (6) Similar concerns are present when legislation allows for the indefinite retention of samples from convicted persons. Even Alec Jeffreys, whose discoveries revolutionized the use of DNA in criminal cases, expressed concern about the selective expansion of DNA databases. (7) He commented that retaining suspects' DNA is "likely to be discriminatory; it won't affect people at random but be skewed in favour of certain socioeconomic and ethnic groups." (8)

   The United States has begun to move toward a system similar to that present in the United Kingdom prior to the S. & Marper decision. Federal legislation now allows for the collection of DNA samples from arrestees. (9) Additionally, a number of states have passed similar legislation, and both state and federal courts have ruled that these laws are constitutional.

   This Note examines the implications of the emerging trend in the United States toward looser restrictions on DNA retention and collection, and proposes that federal and state legislatures act now to prevent future abuses in the use of expanded DNA databases. Part II provides an overview of the use of forensic DNA analysis and the ways in which the technology has developed to facilitate law enforcement's efforts to solve both new and previously unsolved crimes. It then examines the current system in the United Kingdom and evolving trends in United States DNA collection and retention. Part III compares the DNA profiling system in the United Kingdom following the Marper decision with the current system in the United States. It also analyzes the potential risks that are present if the United States continues with its current trend toward permitting collection and retention of DNA from arrestees. Part IV proposes to restrict the ability of law enforcement to retain DNA profiles collected from arrestees. It further establishes guidelines barring the use of forensic technology to conduct familial searches on DNA profiles, unless permission has been given by the source of the original profile or in certain exceptional circumstances.

2. BACKGROUND

   1. An Overview of DNA Technology

      Physical evidence has long helped law enforcement to solve crimes. (10) Given the unreliability, and sometimes unavailability, of eyewitnesses, physical evidence may be the only means of solving a crime. (11) Physical evidence can range from something as seemingly simple as a shoeprint (12) to something as complex as DNA. The use of fingerprints and blood typing was a precursor to DNA sampling, (13) and law enforcement began classifying, storing, and retrieving fingerprint data using computers in the early 1970s. (14) Fingerprints are often said to provide "absolute proof of identity," because they remain the same throughout a person's lifetime and are unique to each individual. (15) DNA profiling has now emerged as a method of identifying the source of biological evidence that rivals fingerprint analysis in reliability and effectiveness. (16)

      In the early 1980s, two fifteen-year-old girls were raped and murdered in a village in England. (17) The crimes occurred three years apart, but no arrest could be made until after the second murder. (18) Despite receiving a confession from one man for the second crime, law enforcement was able to use DNA forensic techniques to determine that the same man had murdered both girls, and it was not the man who had confessed. (19) In making this discovery, police received cooperation from approximately five thousand local men who volunteered to have DNA samples collected and tested. (20) Colin Pitchfork eventually came forward and police were able to match his DNA to both crimes in the first successful use of such technology. (21)

      DNA is the genetic material that is partially responsible for transmitting individual characteristics from parents to offspring. (22) In the mid-1970s, laboratory methods were developed to detect genetic variation at the DNA level. (23) While some portions of DNA do not differ between individuals, (24) there is enough variation in 2 percent of the genome to make DNA sequencing and the creation of DNA profiles useful in forensic analysis. (25) Different methods were developed and utilized for forensic DNA analysis, (26) but the need to have DNA that is of both sufficient quality and quantity continues to limit their use. (27) Some advances, such as the polymerase chain reaction (PCR) DNA typing procedure, now allow criminalists to replicate DNA, thereby expanding its usability. (28) In order for DNA evidence to be useful, it remains particularly important to maintain the integrity of the DNA samples collected. (29) Problems that can arise during the analysis procedure include contamination, degradation, interference from environmental conditions, the presence of inhibitors, and human error. (30)

      DNA profiles extracted from the evidence are then compared to DNA found in blood or tissue taken from known samples, and one of these interpretations usually applies: inclusion, exclusion, or inconclusive. (31) A finding of inclusion indicates that there was a match between a known sample and the evidentiary sample. (32) If an interpretation of DNA inclusion is made, testifying experts must provide fact-finders, such as jurors, with estimates of the likelihood of finding the particular DNA profile in a randomly selected individual and with statistics about how rare the profile is in the relevant population. (33) In the United States, the major population groups include Caucasians, Blacks, West Coast Hispanics, East Coast Hispanics, and Asians. (34)

      Previously, prosecutors and laboratories had to be cognizant of the fact that findings were of little or no statistical significance if the database size was too small. (35) As the technology has evolved and databases have increased in size, however, juries are often told that a particular "genetic profile is as rare as one in a trillion ... [and] is essentially an absolute identification." (36) With jurors becoming increasingly confident in and reliant upon these DNA testing results, laboratories must exercise proper quality control and quality assurance procedures to avoid the potentially tragic consequences of a false exclusion or inclusion. (37)

   2. The United Kingdom

      1. History of Forensics in the United Kingdom

         Britain was the first country to have a national DNA database. (38) The Royal Commission on Criminal Justice (39) recommended the establishment of the DNA database in 1993, (40) and the Home Office officially announced its creation a year later. (41) At that time, the Home Office also commissioned a pilot study to examine the use of DNA in the context of a forensic database. (42) In 1995, the Criminal Justice and Public Order Act (CJPOA) mandated establishment of the England and...