Under the human skin: will human microchipping prove to be a survivor in the courtroom just as DNA evidence did?

• Author: Gatto, Anthony P.

1. INTRODUCTION

   On June 10, 2011, the hit television series "CSI: CRIME SCENE INVESTIGATION" was presented with the prestigious "International Television Audience Award for a Drama TV Series" at the 50th Monte Carlo TV Festival making it the third time the series has been awarded this honor in five years. (1) More than 73.8 million viewers across five continents worldwide tuned in to the show, (2) which follows law enforcement officials as they use highly advanced technological tools to examine evidence and solve crimes. (3) Many of the series' episodes expose viewers to scenes in which investigators gather physical evidence by utilizing cutting edge technology known as DNA testing. (4) This form of testing, which extracts deoxyribonucleic acid from genetic material such as skin, hair, and other bodily fluids, can prove with 99% accuracy whether a suspect is the perpetrator of crime by comparing his or her DNA with the DNA left at the crime scene. (5)

   Although the television show CSI is a work of fiction developed for entertainment purposes, DNA testing is a real world scientific breakthrough. Since its inception in 1985, DNA testing has emerged as the most reliable physical evidence at a crime scene and has more recently been declared a "staple" in modern crime scene investigations. (6) Proponents of DNA admissibility in criminal trials argue that the results of DNA testing can aid in determining which suspects are properly charged and also which defendants should be excluded from the investigation or exonerated. Critics of DNA testing have often argued that the technique is a violation a citizen's Fourth Amendment right to Privacy and consequently should not be admissible at trial. (8) As it stands today, courts in almost every jurisdiction in the United States have established through legislation or precedent that DNA evidence is admissible. (9)

   To further utilize the benefits DNA testing provides, all fifty states and the Federal government have passed legislation requiring convicted felons to submit DNA samples to state officials either at the time of their sentencing or before being released from prison. (10) Additionally, the Federal government has developed its own national DNA database titled CODIS which is monitored by the Federal Bureau of Investigation and can be directly linked to state DNA databases. (11) In response the development of DNA databases, opponents have been unsuccessful in challenging the constitutionality of convict-DNA-database statutes in every jurisdiction where they have been brought. (12)

   It has been almost thirty years since the discovery of DNA testing and science enthusiasts around the world could be wondering: What's next? What will be the next scientific discovery that impacts the world as DNA testing did? The answer to those questions might be microchipping and, although it is not widely reported, the technology is already being utilized. (13) The idea of implanting a microchip in a human is not as far-fetched as it sounds and by 2007, two thousand people worldwide had already voluntary undergone a procedure to have a veriChip brand Radio-frequency identification chip implanted in their right upper arm. (14) The diverse group of people who have been microchipped include patients with chronic or debilitating disease, VIP patrons of a Barcelona nightclub, and investigators requiring special access to confidential drug-trafficking case files at the Ministry of Justice in Mexico. (15)

   Some commentators suggest the benefits of microchipping are endless. (16) Possible uses of microchipping beyond its current use include: implanting chips in soldiers and journalists in war zones; implanting chips in felons released from prison; and even implanting chips in children for the unlikely event they are kidnapped. (17) One's imagination could run wild with the endless possibilities of human microchipping but eventually one will find themselves running directly in to this question: Is microchipping ethical? (18) Critics of microchipping suggest their imaginations can run equally wild with the endless problems that microchipping could create. (19) Examples of these problems include: the risk of an individual hacking your infrastructure to steal your identity; the possible privacy rights violations that would be infringed on ex-cons who have managed to stay out of trouble for long periods of time; and the possibility that a microchip might actually put a kidnapped child in a greater danger if the perpetrator becomes aware he is being tracked. (20) While we cannot predict with certainty where human microchipping will lead us over the next ten years, this Note attempts to predict if compelled human microchipping will survive constitutional challenges by exposing it to the same constitutional challenges DNA evidence faced.

   This Note will predict the legal results of constitution challenges to compelled human microchipping of individuals arrested for or convicted of felonies. First, this note will trace the history and development of DNA testing and its rapid expansion into court room across the country. Second, the Note will examine the various admissibility standards courts apply to DNA evidence and the admissibility issues DNA evidence faced. Third, the Note will explore the class of individuals law enforcement officials are authorized to collect DNA from. Fourth, the Note will analyze DNA's survival of the often used Fourth Amendment Constitutional challenge. Fifth, the Note will introduce a new scientific discovery known as "microchipping." Sixth, the Note will set forth a legal analysis of microchipping under the Fourth Amendment and the admissibility standards used by the courts by comparing it with DNA evidence and databases. Finally, the Note will predict what the legal result would be in the event the government compelled the microchipping of individuals convicted of crimes.

2. HISTORY

   1. DNA Testing: A Scientific Breakthrough

      1. Development of DNA Testing

         The discovery that DNA was the master molecule that contains a code responsible for human's genetic makeup and the later development of DNA testing for forensic purposes is widely attributed to three individuals on two different continents at different time periods: Francis H.C. Crick, James D. Watson, and Dr. Alec Jeffreys. (21) In 1953, American scientists Francis H.C. Crick and James D. Watson discovered that human "genes" were composed of protein and a substance called deoxyribonucleic acid, or DNA. (22) Watson recognized that the DNA molecule was made up of long strands of the nitrogen-containing nucleobases adenine, thymine, guanine, and cytosine. (23) He then noticed how two pairs of these bases, adeninethymine and guanine-cytosine, would form identical shapes if held together by a hydrogen bond. (24) This discovery lead Crick and Watson to believe that a DNA molecule, made up of long strands of such base pairs in specific and varied sequences, could contain genetic information which could be copied if the nucleobase strands were separated. (25) This breakthrough discovery was presented to the world on April 25, 1953, when Watson and Crick announced in a Nature Magazine article that "the specific pairing we have postulated immediately suggests a possible copying mechanism for the genetic material." (26)

         In September 1984, more than thirty years after the discoveries made by Crick and Watson, Dr. Alec Jeffreys discovered that each human being contains a "genetic fingerprint" which is specific to that individual, and this "genetic fingerprint" cannot be the same in any other person on earth except for identical twins. (27) Dr. Jeffreys, a geneticist from the University of Leicester in Great Britain, made this discovery while studying hereditary diseases in families. (28) Dr. Jeffrey's procedure included using Restriction Fragment Length Polymorphism (RFLP) to analyze DNA, which led to his discovery that repetitive patterns of DNA, known as Variable Number of Tandem Repeats (VNTRs), were present in all human beings, yet each human being's VNTR varied in length. (29) Dr. Jeffreys coined the technique he used to analyze DNA as "genetic fingerprinting" and concluded that this variation in length of the VNTRs could be used to establish the identity of a person. (30)

         Following his breakthrough discovery, Dr. Jeffreys was soon able to use his "genetic fingerprinting" technique to aid law enforcement officials in tracking down and convicting a murderer. (31) In 1983, fifteen year old Lynda Mann was raped and murdered in the quiet town of Narborough Village, England. (32) In 1986, fifteen year old Dawn Ashworth was raped and murdered in the same town. (33) These two horrific crimes led law enforcement officials to call on Dr. Jeffreys to provide his expertise and aid in the apprehension of the killer. (34) Dr. Jeffreys applied his "fingerprinting technique" and compared suspect Colin Pitchfork's DNA with the DNA of the semen found on victims Lynda Mann and Dawn Ashworth. (35) The DNA was a perfect match, and Colin Pitchfork subsequently pled guilty to both rapes and murders making him the first person in the world to be identified, captured, and successfully prosecuted as a result of DNA evidence. (36)

         One year after the conviction of Colin Pitchfork, the United States followed the lead of Great Britain when prosecutors in a Florida Court successfully used DNA evidence to convict Tommy Lee Andrews of aggravated battery, sexual battery, and armed burglary of a dwelling. (37) The evidence introduced by prosecutors included a comparison of DNA from Andrews' blood with the DNA found in the victim's vagina. (38) By January 1990, approximately two years after the first successful use of DNA in criminal trial, the use of DNA evidence spread rapidly across the United States Justice System, having been admitted into evidence in at least 185 cases in thirty-eight states. (39)

      2. Development of CODIS and DNA Databanks

         In 1990, the...