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DNA Database Information
Stephen B. Mercer, Esq. has been at the forefront of the cutting edge issues related to DNA for many years. DNA is the leading forensic tool used by law enforcement to investigate crimes past, present and future. The use of DNA in databases used by State and Federal agencies is subject to misuses and can invade the privacy rights of innocent family members of a person convicted of certain types of crimes. The “familial” searching of databases allows the government to conduct “genetic surveillance” to these innocent family members. SBMlaw has been at the forefront of genetic surveillance litigation and are challenging the misuses of DNA on behalf of innocent family members.
SBMlaw predicted the misuses of DNA in the Maryland landmark case of State of Maryland v. Charles Raines, 383 Md. 1, 857 A.2d 19 (2004) in 2004. SBMlaw correctly predicted that “familial” searching and “genetic surveillance” would become a reality. SBMlaw is now litigating this cutting edge issue and the effect of the invasion of privacy on the rights of innocent family members.
Points of Interest About DNA:
- DNA and fingerprints are completely different
- Unlike fingerprints, DNA is the genetic blueprint of who you are and provides inner workings of your body
- If one of your family members is convicted of a certain type of crime YOU may be the target of familial searching and genetic surveillance by the government
GOVERNMENTAL OVERREACHING IN THE EXPANSION OF DNA DATABASES THROUGH “FAMILIAL SEARCHING”
Courts upholding the constitutionality of DNA collection statutes have dismissively characterized concerns about the possibility of future governmental overreaching in seizures of DNA evidence as “doomsday type scenarios” worthy of no credence. Under this view, the government’s collection of genetic material for forensic purposes presents little, if any danger of a “slippery slope” that might threaten the civil liberties of law abiding citizens. The lack of a vigorous public debate over the continued expansion of DNA seizures for inclusion in governmental DNA databases seems to suggest the public shares this view. The advent of “familial searching,” however, dramatically demonstrates that such blithely confident predictions have been, at the least, optimistically premature.
“Familial” searching occurs when the police or prosecutors search a DNA database for a near match instead of a complete match. Because DNA is inherited, family members share a common gene pool and are likely to have similar DNA profiles. Fully appreciating this, the government is now permitting DNA databases to be searched for a near match between a DNA profile contained in a DNA database and a DNA profile collected at a crime scene. In this way, the government is expanding “genetic surveillance” beyond those individuals whose DNA is contained in the database, to wholly innocent family members. Specific questions raised by this practice are (1) whether it is constitutionally permissible for the government to invade the genetic privacy of innocent citizens who are not suspected of any criminal activity; (2) whether the government, once its has obtained a “near match”, is constitutionally limited in the manner in which it then investigates family members or seizes their DNA; and (3) whether in these circumstances the government will be permitted to exploit nonjusticiability and standing doctrines to foreclose judicial review of the constitutionality of its actions in conducting “familial searching” of DNA databases.
Obviously, the issues are important. Two years ago, Supreme Court Justice Stephen Breyer wrote that, “DNA identification may raise privacy concerns. Suppose a check of a convict DNA database reveals a near miss, thereby implicating a relative who has no record of conviction and was consequently not included in the bank. What kind of legal rules should apply?” With, unfortunately, very little public attention or debate, those new legal rules are quickly emerging: The F.B.I. has, for example, just changed its regulations to permit, for the first time, familial searches of the national forensic DNA database (NDIS). That interim change must be approved by the F.B.I.’s scientific advisory board before it becomes permanent, and in the meantime the public needs to know about this development, and its significance.
In behalf of the family of a now-deceased convictee whose DNA is still included in Maryland’s databank, SBMlaw has recently requested expungement of their relatives’ DNA because – although retention of a dead man’s DNA cannot possibly serve any legitimate law enforcement purpose – its continued inclusion in the databank subjects innocent family members to permanent, life-long genetic surveillance by the state. A favorable response to this request is not anticipated, and the matter will, therefore, very likely become the first judicial challenge to the constitutionality of familial DNA databank searching.
As important as this litigation may be, it involves important policy choices that should, optimally, be made in the first instance by the political branches of government, rather than by judges who are not democratically accountable. Of course, the prospect of political and citizen engagement with the issues depends heavily on it being informed of the important issues at play. This is precisely why SBMlaw urges you, the reader, to continue to inform yourself about these important issues and become involved in their resolution.
Stephen B. Mercer
Other DNA articles:
Ninth Circuit decision upholds warrantless seizure of DNA from nonviolent convictees on supervised release, but leaves open the possibility for a successful challenge to the warrantless seizure of DNA from arrestees and non-citizen detainees, and nonviolent offenders who have completed their sentence. UNITED STATES v. KRIESEL
Sandler & Mercer, P.C. filed a Petition for Writ of Certiorari to the Supreme Court of the United States in Steven Diffendal v. State of Maryland on November 28, 2006, asking the Court to decide an important issue related to DNA. To view the Petition filed , click here for more info .
MARYLAND’S DNA DATABANK: THE NEED FOR BAR OVERSIGHT
by Stephen B. Mercer and William G. McLain
Stephen B. Mercer, Esq., and William G. McLain, Esq., an Associate Professor at the University of the District of Columbia David A. Clarke School of Law, co-authored an article published in the Maryland State Bar journal that explains the need for Bar oversight of the expansion of DNA databases. Read the article here:
Maryland DNA Databank (PDF document)
State v. Raines
State
v. Raines, No. 129, September Term, 2003 , COURT
OF APPEALS OF MARYLAND , 383 Md. 1; 857 A.2d 19; 2004 Md.
LEXIS 504, August 26, 2004, Filed
Maryland law that mandated DNA collection from violent felons did not
violate Fourth Amendment, and DNA could be used as evidence at trial for rape
that occurred years earlier without violating prohibitions against ex post facto
laws.
Maryland
v. Raines links of interest
DNA Media News
DNA said to clear pair after 19 years
The Baltimore Sun
By: Julie Bykowics
10/03/06
http://www.baltimoresun.com/news/local/bal-te.md.dna03oct03,0,7803349.story
DNA Test Result Casts Doubt on Two Convictions In 1987 Murder
The Washington Post
By: Ernesto Londoño
10/03/06
http://www.washingtonpost.com/wp-dyn/content/article/2006/10/02/AR2006100201379_pf.html
DNA Links
- Article: Governmental Overreaching In The Expansion Of DNA Databases Through “FAMILIAL SEARCHING”
- Article: MARYLAND’S DNA DATABANK: THE NEED FOR BAR OVERSIGHT (PDF)
- Media - Media links to information regarding DNA Databases
New DNA Victory
DNA said to clear pair after 19 years
The Baltimore Sun
By: Julie Bykowics
10/03/06
Baltimore
Sun
DNA Test Result Casts Doubt on Two Convictions In 1987 Murder
The Washington Post
By: Ernesto Londoño
10/03/06
Washington
Post
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