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Stephen B. Mercer Appears on CBS’ Sixty Minutes to Discuss DNA Issues

            60 mintuesIn July, 2007, Stephen B. Mercer was a featured guest on a CBS News Sixty Minutes report entitled “A Not so Perfect Match,” an examination of the newly-emerging technique of familial searching of forensic DNA databases.

            Forensic familial searching involves the use of partial, “near miss” matches of crime scene DNA samples with the DNA databank profiles of convicted criminals, thereby implicating relatives not included in the databanks because they were never convicted of committing any crimes.

            Sixty Minutes reporter Lesley Stahl framed the relevant issues and competing interests through debate-style interviews with Stephen B. Mercer, who opposes the widespread use of familial searching and in Denver, Colorado, Chief Prosecutor Mitch Morrissey, a leading proponent of the method.

            Mr. Morrissey emphasized the value of familial searching as a useful tool in criminal investigations and prosecutions, while Mr. Mercer countered that regardless of the technique’s utility, the legal rules applicable to this new investigative approach ought to acknowledge and protect the substantial Fourth Amendment privacy interests of innocent family members. Mr. Mercer also noted that familial DNA searches amplify the effects of disparate inclusion of African Americans in forensic DNA databases, with some calculations showing that nation-wide adoption of the technique would effectively place a majority of the county’s African American population – including those never charged or convicted of any criminal wrongdoing – under permanent genetic surveillance by the government.

            The Sixty Minutes report did not address another significant legal anomaly of familial DNA searches, one that results from the failure of most if not all state DNA collection statutes to include provisions for the expungement of the DNA profiles of deceased convictees – an omission that means innocent relatives are subjected to continued genetic surveillance even after convicted wrongdoers are dead (and are, therefore, obviously unable to commit additional crimes). Assisted by William G. McClain, Esq., Mr. Mercer has recently submitted a DNA profile expungement demand to the Maryland State Police on behalf of the mother and other family relations of a deceased Maryland convictee; although Maryland law does not expressly provide for the remedy, Messrs. Mercer and McLain contend that constitutionally-grounded privacy principles require its availability in appropriate cases.

            Mr. Mercer hopes that his Sixty Minutes appearance contributed to increased public awareness of privacy issues implicated by governmental DNA databanking, particularly at a time when some law enforcement officials and legal academics are, without significant news media scrutiny thus far, increasingly supportive of proposals to create population-wide universal DNA databases.

 Click to watch video.

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