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                            LexisNexisª Academic

                    Copyright (c) 2001 Texas Law Review
                              Texas Law Review

                                March, 2001

                            79 Tex. L. Rev. 921

LENGTH: 15513 words

NOTE: Arresting Crime: Expanding the Scope of DNA Databases in America+


+ I would like to express my gratitude to the members of the Texas Law
Review for all of their hard work in preparing this note for publication,
with special thanks to Lindsey Godfrey, Kendyl Hanks, and Maidie Ryan for
their assistance and skillful editing job. I would also like to thank my
family for all of their love and support during my law school career.

- Aaron P. Stevens


SUMMARY:
... Forensic DNA databases are fast becoming one of the most important tools
in the arsenal of United States law enforcement. ... A DNA match can prove
with near certainty a person's presence at a crime scene. ... In December of
1999 Virginia, which boasts the largest database in the nation, recorded
their one-hundredth "cold hit," law enforcement lingo used when police
without leads find a suspect by matching DNA from a crime scene with a DNA
profile in the database. ... C. CODIS: The National DNA Database System ...
CODIS uses two different indexes to produce leads when biological evidence
is found at a crime scene. ... The CODIS system has three levels. ... Once a
state joins CODIS, the FBI provides the state and local law enforcement
laboratories that perform DNA analysis with the necessary software, along
with installation, training, and user support, all free of charge. ... To
date, no known breach of CODIS or any other DNA data bank system has
occurred. ... While the CODIS database is intended primarily for law
enforcement purposes, it also makes the information available, after
personal identification is removed, "for a population statistics database,
for identification research and protocol development purposes, or for
quality control purposes. ... The resulting profiles are compared against
samples left at the crime scene. ...

TEXT:
 [*921]

I. Introduction

The use of DNA n1 identification in trials begins with the rape and murder
of two teenage girls in 1986 in the small English village of Narborough. The
killings led to the eventual prosecution of a serial rapist and murderer
named Colin Pitchfork, n2 the first criminal to be identified and
subsequently prosecuted strictly on the basis of his DNA. n3 The United
States soon followed suit in 1987. n4 Since then DNA testing has been used
regularly as evidence in criminal cases in the United States and  [*922]
abroad n5 in much the same manner that fingerprints were used in the past.
n6

Forensic DNA databases are fast becoming one of the most important tools in
the arsenal of United States law enforcement. These databases are
computerized systems that store genetic profiles developed from DNA samples,
allowing law enforcement agencies to search for matches with unidentified
samples recovered from crime scenes. n7 The use of DNA evidence for criminal
identification has been called by some ""probably the greatest forensic
advancement since the advent of fingerprinting,'" n8 likened to ""the finger
of God,'" n9 and condemned by others as a threat to the constitutional
guarantee of a fair trial. n10 A DNA match can prove with near certainty a
person's presence at a crime scene. n11 Currently all fifty states have
passed legislation authorizing criminal DNA databases, n12 and  [*923]
every state has laws requiring that DNA samples be taken from certain
classes of criminals. n13

This Note explores the use of DNA databases in this country. Part II briefly
explores the history, development, and use of forensic DNA databases in the
United States. Part III discusses the debate surrounding the use of DNA
databases. Part IV analyzes the expansion of the scope of DNA databases
throughout the country and assesses the advantages, disadvantages, and
likelihood of further expansions in light of constitutional and public
policy concerns.

II. Overview of the History of DNA Databases in the United States

Although DNA databases in one form or another have been in use in the United
States for about a decade, their size and number have increased greatly in
recent years. This section examines the history and development of the DNA
databases that are currently maintained in the United States by  [*924]  the
Department of Defense, the individual states, and the federal government.

A. The Department of Defense DNA Registry and Repository

The military began using DNA to identify service member remains in 1991
during Operation Desert Storm. As a result, Desert Storm was the "first
major war involving significant casualties in which no deceased U.S.
serviceman was buried unidentified." n14 In 1991, after the successful use
of DNA in the Gulf War, the Department of Defense (DoD) established the DNA
Registry and Repository (the "Registry"). n15

To this end, DNA samples are taken from every military recruit and service
member in the United States. n16 Once collected, these samples are stored in
a freezer at the DoD Registry in Gaithersburg, Maryland. n17 The asserted
purpose of this massive database is to assist in the task of identifying the
remains of military personnel. n18

As of February 1997, the Registry consisted of 1.65 million samples - with
three to four thousand new samples arriving daily - and it is expected to
hold eighteen million samples at maximum capacity, n19 making it the largest
DNA database in the world. n20 To assure the constitutionality and continued
existence of the Registry, the DoD has established rigorous quality and
security guidelines: there are one hundred random quality assurance tests
conducted every month on the Registry's samples, and only twenty-eight
individuals are authorized to handle the samples. n21  [*925]  Adherence to
these guidelines is enforced through the required use of security codes by
those authorized to handle the samples. These codes are changed at least
once a year as well as immediately upon the departure of any Registry
personnel. n22 Nevertheless, concerns about access remain. Though the
Registry is intended to be used primarily for identification of deceased
service member remains, in some cases the samples may be used for other
purposes. One instance arises when there are no alternative means of
obtaining a specimen for DNA analysis. n23 Additionally, the FBI and
civilian police may obtain access to the samples with a court order. n24
These exceptions to the general purpose of the Repository may open the door
to wider use of the samples in the future.

B. State DNA Databases

Virginia developed the nation's first state forensic DNA database in 1989.
n25 Within a decade all fifty states had passed legislation authorizing DNA
databases, n26 the last being Rhode Island in June of 1998. n27 These
 [*926]  laws typically require certain classes of convicted felons to
submit blood or saliva, either at the time of their sentencing or before
being released from prison, to state crime labs to be profiled. n28 The
blood or saliva is analyzed, and the resulting DNA profiles are entered into
a computer to facilitate searches attempting to match unknown DNA samples
taken from crime scenes with a sample in the database. n29

The results of state DNA databases, which as of January 2000 contained the
genetic profiles of around 210,000 criminals, n30 have been promising for
the most part. In December of 1999 Virginia, which boasts the largest
database in the nation, n31 recorded their one-hundredth "cold hit," law
enforcement lingo used when police without leads find a suspect by matching
DNA from a crime scene with a DNA profile in the database. n32 By August of
1999, Illinois had recorded 76 cold hits; n33 by November of 1999 Florida
had recorded 205; n34 and Wisconsin had 9 cold hits from May to October of
1999. n35 Conversely, Maine's database, in operation for over a year, had
not solved a single crime by October of 1999. n36

C. CODIS: The National DNA Database System

An extension of the state databases is the national DNA Database, CODIS
(short for Combined DNA Identification System), n37 which was launched in
October of 1998 under the control of the National Crime  [*927]  Information
Center of the Federal Bureau of Investigation. n38 CODIS was established by
the DNA Identification Act of 1994, an amendment to the Omnibus Crime
Control and Safe Streets Act of 1968. n39 The Act, including recent
amendments, authorizes the FBI to create a national DNA database consisting
of information from four sources: persons convicted of crimes, samples
recovered from crime scenes, samples recovered from unidentified human
remains, and samples voluntarily contributed by relatives of missing
persons. n40 Individual states can elect to join the CODIS system by linking
their state databases with the FBI's system. n41

CODIS uses two different indexes to produce leads when biological evidence
is found at a crime scene. The first is the Convicted Offender Index, which
contains the DNA profiles of convicted felons. n42 The second, the Forensic
Index, consisting of unknown DNA profiles taken from crime scenes,
facilitates the identification of serial offenders by linking more than one
crime to the same individual. n43 The DNA profiles are digitized and entered
into a computer, facilitating automatic searches for matching profiles. The
CODIS database stores profiles comprised of only a specimen identifier, the
identity of the sponsoring laboratory, the laboratory personnel who
developed the profile, and the actual DNA profile itself; the database does
not store any criminal history information or social security numbers. n44

The CODIS system has three levels. n45 At the local level, crime
laboratories in police departments and sheriff's offices use the Local DNA
Index System (LDIS) to develop DNA profiles. n46 All profiles originate at
this level; next they travel up the chain to the state and national levels.
n47 Each state participating in the CODIS program has a single State DNA
Index System (SDIS) that allows laboratories within the state to  [*928]
exchange DNA profiles. The SDIS is usually operated by the agency
responsible for implementing the state's DNA database statute and functions
as the conduit between the local and national tiers. n48 At the national
level, CODIS consists of the National DNA Index System (NDIS), which
includes DNA profiles contributed by the participating states. The NDIS is
maintained by the FBI under the authority of the DNA Identification Act and
allows states to exchange profiles and perform interstate searches. n49

Once a state joins CODIS, the FBI provides the state and local law
enforcement laboratories that perform DNA analysis with the necessary
software, along with installation, training, and user support, all free of
charge. n50 When a potential match is identified, the laboratories
responsible for developing the profiles contact each other and work together
to validate or refute the match. n51 If the match is confirmed, the
laboratories exchange additional information, such as the names and phone
numbers of criminal investigators, case details, and - if the match comes
through the Convicted Offender index - the identity and location of the
convicted offender identified. n52

As of May 2000, twenty-four states were assisted by the CODIS system, n53
and all fifty are expected to join NDIS. n54 As of November 1999, 600,000
DNA profiles had been collected by the fifty states, n55 and by April 2000,
CODIS had registered over 500 matches. n56

While CODIS has proved a successful tool for criminal investigation, the
integration of states' samples with the CODIS system has been problematic.
States are inconsistent in their testing methods n57 and in what  [*929]
offenses they include in the database. n58 States also have discretion to
decide what information is relayed to the FBI. n59 These inconsistencies
make nationwide DNA matching more difficult. Some of these concerns are
addressed by the Violent Offender DNA Identification Act, n60 currently
pending before Congress. The Act would expand the scope of the CODIS
Database to include certain criminal offenses under federal law, the Uniform
Code of Military Justice, and the District of Columbia Code, n61 and it
would give the FBI the discretion to specify DNA testing methods n62 and to
set standards for removal of samples. n63

III. The Debate Over Databases

The debate surrounding the costs and benefits of DNA databases continues
among proponents of law enforcement and civil libertarians. However, even
those people critical of the use of DNA databases do not deny that they are
an extremely effective method of fighting crime. n64

Those opposed to the use of DNA databases by law enforcement often cite
concerns about the reliability of the DNA evidence itself, the processes
used by the laboratories to develop DNA profiles, the adequacy of security
protocols used by DNA databases to protect the information they contain
against wrongful dissemination, and the possibility of the misuse of DNA
information collected for a legitimate purpose. Others who oppose DNA
databases question whether the Constitution permits the government to
establish DNA databases at all. Supporters of the expanded use of DNA
databases in the United States emphasize the power of DNA evidence to
exculpate the innocent - the fact that DNA databases lead to the arrest of
 [*930]  more criminals also means that fewer innocent people will spend
time in prison for crimes they did not commit. This section examines the
debate surrounding DNA databases in greater depth.

A. Reliability Concerns

Early concerns focused on the reliability of DNA evidence itself n65 and
quality assurance standards. n66 Opponents of DNA identification fear that
because DNA profiling is such a long and complex process, the results
obtained are unreliable when mislabeling, contamination, or other negligence
is involved. n67 A case in point is a 1989 New York murder case, New York v.
Castro, n68 in which the trial court refused to admit DNA evidence
implicating the defendant because the laboratory that tested the sample
failed to follow appropriate standards. n69

For the CODIS database, the FBI has appointed an advisory board to ensure
and, if appropriate, periodically revise the quality control standards
utilized. n70 The FBI has also provided for external proficiency tests of
DNA laboratories and analysts to be performed at regular intervals not to
exceed 180 days. n71 However, because the CODIS system allows each state to
set its own laws regarding the quality of DNA testing, n72 state laws
regulating quality control are not uniform. New York has one of the most
extensive quality control systems. n73 The New York Commission on Forensic
Science is obligated to "develop minimum standards and a program of
accreditation for all forensic laboratories in New York state,  [*931]
including establishing minimum qualifications for forensic laboratory
directors and such other personnel," n74 and to "ensure that forensic
analyses, including forensic DNA testing, are performed in accordance with
the highest scientific standards practicable." n75 The New York statute also
requires "routine internal and external proficiency testing." n76 Of the
remaining forty-nine states, only Maryland's statute contains a similar
provision for external proficiency testing. n77

With the increased use of DNA evidence and advances in technology, concerns
over the reliability of DNA identification have largely disappeared. n78
Christopher Asplen, Executive Director of the National Commission on the
Future of DNA Evidence, states, ""no other form of evidence for identifying
human beings has gone through such a rigorous scientific and legal
validation as DNA has ... . Now it's the most reliable evidence we've got.'"
n79 However, concerns about tampering with the samples themselves or
negligence in their analysis will probably always be a concern. n80

 [*932]

B. Security Concerns

Civil libertarians are also concerned with the security protocols used by
the databases and the prevention of unwarranted access to and dissemination
of DNA evidence stored in databases. n81 While developing the CODIS system,
the government has tried to address these issues, and the FBI has made
security a major priority for the CODIS network. n82 The database is housed
in a secret location, n83 all data transmissions are encrypted, n84 and
Congress has imposed a $ 100,000 fine for unauthorized disclosures. n85 The
DNA Identification Act of 1994 provides that only law enforcement officers
and parties involved in criminal prosecutions are allowed access to the
samples. n86 Most state statutes contain similar  [*933]  provisions. n87 To
date, no known breach of CODIS or any other DNA data bank system has
occurred. n88

C. Genetic Discrimination Concerns

Closely related to fears about unauthorized use are concerns over genetic
discrimination. Some critics of DNA databases fear that as the databases
expand, the information may be used for discriminatory purposes outside law
enforcement, such as denying insurance, employment, or even the right to
have children - all based on an individual's genetic makeup. n89 Indeed,
statistics like the recent admission by twenty-five percent of Fortune 500
companies that they have used DNA testing to weed out job applicants with a
certain disposition for genetic diseases prove that these concerns are
legitimate. n90 While the CODIS database is intended primarily for law
enforcement purposes, n91 it also makes the information available, after
personal identification is removed, "for a population statistics database,
for identification research and protocol development purposes, or for
quality control purposes." n92 Some states allow the information their
databases contain to be used even more broadly. n93

 [*934]  Though state laws prohibiting genetic discrimination are not
uniform, n94 the fear that the information from forensic DNA databases may
be used for genetic discrimination is largely dispelled by the realities of
the testing itself. The two main methods of analyzing DNA samples and
obtaining a profile for inclusion in DNA databases are the RFLP n95 and the
 [*935]  STR n96 methods. Both methods test genetically noninformative DNA,
which cannot be used to determine an individual's personal genetic
characteristics; all that is retained is a profile that can be used for
identification. n97 On the other hand, problems may arise when the
laboratories store the actual DNA samples - as opposed to destroying them
after analysis - because DNA samples, unlike profiles, contain all of an
individual's genetic and medical information. n98 The laboratories'
continued possession of the samples leaves open the possibility of
additional future testing. Crime labs cite several reasons for saving
samples: for reanalysis at a later date when technology improves; for the
defense counsel of an individual identified through a database search; and
for facilitating routine quality control tests. n99 Currently only one state
database law requires disposal of samples, n100 and while state practices
are  [*936]  mixed, the majority of states preserve them. n101 Many critics
of DNA databases believe that retention of samples is one of the most
pressing privacy issues surrounding databases today. n102 The National
Academy of Sciences advises that DNA samples be destroyed promptly after
analysis; n103 the issue has been considered by the National Commission on
the Future of DNA Evidence, but no comprehensive policy had been formulated
as of November 2000. n104 The issue of sample retention was raised
repeatedly in the 1991 congressional hearings regarding the DNA
Identification Act. n105 However, Congress refused to explicitly include in
the Act a provision ensuring disposal, possibly because of an assurance by
the FBI that they had "no plans to store actual specimens from which DNA
identification profiles are drawn." n106

D. Legal Challenges to Databases

Concerns about the legality of DNA databases have led to several judicial
challenges. The authority of the Department of Defense to establish its DNA
Registry and Repository was first questioned in 1995. Two Marines, John
Mayfield and Joseph Vlacovsky, refused to submit DNA samples to the
Registry, fearing the possible misuse of their genetic information. n107
Mayfield and Vlacovsky filed suit in federal court seeking to certify a
class on behalf of all active members of the Navy and  [*937]  Marines
opposed to the Registry. n108 The court denied the motion to certify the
class n109 and granted summary judgment for the defendants. n110 On appeal,
the Ninth Circuit vacated the trial court judgment as moot because the
plaintiffs had already left the Marines, n111 and the Department of Defense
continues to collect DNA samples from military recruits and personnel.

As of June of 2000, state DNA database laws had been challenged in sixteen
jurisdictions on a variety of constitutional claims. n112 While claims most
frequently rest on the Fourth Amendment prohibition of unreasonable search
and seizure, n113 courts have also entertained challenges based on the First
Amendment right to the free exercise of religion, n114 the Fifth Amendment
right against self-incrimination, n115 the Eighth Amendment  [*938]
prohibition of cruel and unusual punishment, n116 the Ninth Amendment
vagueness, n117 the Equal Protection Clause, n118 the constitutional
 [*939]  prohibition of ex post facto laws, n119 procedural n120 and
substantive due process, n121 and the separation of powers principle. n122

 [*940]  Challenges to convict-DNA-database statutes have been rejected in
every jurisdiction where they have been brought, save one. In Massachusetts,
a superior court judge issued a permanent injunction in August of 1998
against the involuntary taking of blood samples from prison inmates and
parolees based on the Fourth Amendment prohibition against unreasonable
searches and seizures. n123 However, the Massachusetts Supreme Court vacated
the injunction in April of 1999, n124 and other courts have uniformly
rejected challenges on this ground. Courts have taken three distinct
approaches in holding DNA database statutes reasonable under the Fourth
Amendment: standard Fourth Amendment analysis, n125  [*941]  the "special
needs" doctrine, n126 and the reduced expectation of privacy applicable to
prisoners. n127 The U.S. Supreme Court has not yet ruled on  [*942]  any
constitutional aspect of convict testing for DNA databases and has denied
certiorari in two cases. n128 While no state DNA database statutes have been
held unconstitutional by any court, as the scope of individuals included in
the databases continues to expand, courts may be more willing to uphold
constitutional challenges.

E. Exculpatory Use of DNA

Many people would like to believe that the justice system does not make
mistakes, but statistics show that this is not the case. In 2000, the
governor of Illinois halted all executions in the state because exonerations
from the Illinois death row have outweighed executions thirteen to twelve
since 1976. n129 Not long after the Illinois moratorium, a judge in
California freed nine innocent people from prison when it was learned that
several Los Angeles Police Department officers had framed them and at least
twenty-one others. n130 Unfortunately, at times "eyewitnesses make mistakes.
Snitches tell lies. Confessions are coerced or fabricated. Racism trumps the
truth. Lab tests are rigged ... . Cops lie." n131 Used correctly, DNA
databases and DNA evidence in general can be a powerful tool - both to free
the innocent and to help prevent wrongful convictions before they occur. A
case in point is the story of Kevin Green, a California man convicted and
imprisoned for nearly beating his wife to death and killing their
nine-month-old fetus. n132 Green was falsely identified by his wife, who
suffered memory loss and permanent brain damage in the beating. More than
sixteen years later, DNA taken from the crime scene was matched through the
state's DNA database with that of a convicted rapist named Gerald Parker.
n133 The Innocence Project, founded in 1991 at Yeshiva University's Cardozo
School of Law by Peter Neufeld and Barry Scheck, the DNA experts from O.J.
Simpson's defense team, had freed sixty-five inmates through DNA evidence
nationwide by January 1, 2000. n134 Additionally, the FBI has found that
since 1989,  [*943]  DNA testing has cleared about twenty-five percent of
the sexual assault suspects whose samples are sent to the FBI for testing.
n135

IV. Expanding DNA Databases

The debate surrounding the expansion of DNA databases has been described as
a conflict between dramatically increasing crime resolution rates and
turning the United States into a "nation of suspects." n136 Regardless of
this debate, the national trend is toward expanding the scope of the
databases to include more individuals. n137 Indeed, DNA evidence has become
as common in courtrooms as fingerprints, n138 and the argument for expanding
databases is compelling: today's burglar could be tomorrow's robber or
serial rapist. Because violent criminals often begin by committing lesser
crimes, n139 the sooner their DNA is entered into the database, the better.
Currently there is no consensus among United States law enforcement
officials over what classes of offenders should be included in databases.
n140 While DNA databases generally have been upheld over constitutional
challenges, opinions have not always been unanimous: some courts have
emphasized the need for a rational relationship between offender categories
and the database's stated purpose. n141 The National  [*944]  Academy of
Sciences also cautions states against launching large databases too hastily,
citing concerns that crime labs might be locked into a system that depends
on outdated technology. n142 However, proponents of expanding DNA databases
often cite the success of the British DNA Database.

The British database, begun in 1995, contains over 940,000 profiles n143 and
is expected to soon encompass one-third of all males in the country between
the ages of sixteen and thirty. n144 By June of 2000 it had matched evidence
found at crime scenes to 75,000 criminals n145 and had exonerated more than
51,000 suspects. n146 In forty percent of British cases, DNA from a crime
scene matches DNA in the DNA database, while by comparison only ten percent
of the fingerprints found at a crime scene match fingerprints in the
fingerprint database. n147 In the United States, the expansion of DNA
databases is likely to continue as well. Former United States Attorney
General Janet Reno was said to be in favor of expanding DNA databases, n148
and she asked the National Commission on the Future of DNA Evidence for its
opinion on the legality of taking DNA samples from everyone arrested for a
crime. n149

 [*945]  One of the major problems with any expansion of DNA databases
involves the current backlog of testing samples already taken for existing
databases. Currently, there are approximately 500,000 samples in storage
nationwide, waiting to be profiled and entered into databases, and an
estimated one million convicted rapists and murderers who have not yet given
samples. n150 With an estimated thirteen to fifteen million arrests in 1998,
n151 any expansion of the classes of criminals covered by databases would
only compound this problem. The biggest reason for the current backlog is
simply the lack of personnel and funds to perform the necessary testing.
n152 The Paul Coverdell National Forensic Sciences Improvement Act of 2000
n153 could help alleviate this problem. The legislation provides for federal
grants of $ 512 million over six years to "improve the quality, timeliness,
and credibility of forensic science services for criminal justice purposes,"
n154 including a $ 30 million grant for the fiscal year 2001 "for the
elimination of DNA convicted offender database sample backlogs and for other
related purposes." n155 Congress also recently enacted the DNA Analysis
Backlog Elimination Act of 2000, n156 which provides $ 45 million over three
years to "carry out, for inclusion in [CODIS] ... DNA analyses of samples
taken from individuals convicted of a qualifying State offense," n157 and $
100 million over four years to "carry out, for inclusion in [CODIS] ... DNA
analyses of samples from crime scenes" n158 and "to increase the capacity of
laboratories owned by the State or by units of local government within the
State to carry out DNA analyses." n159 Additionally, to combat the lack of
qualified personnel to perform the testing, states could follow the lead of
Virginia, which recently contracted with a private lab to process about
eight thousand samples a month. n160

 [*946]  The next four sections explore the main levels of possible
expansion in DNA databases: the expansion of state DNA databases from sexual
offenders to include more classes of criminals, the expansion of state DNA
databases to cover all people arrested for a crime, the expansion of the
national DNA database to include all Americans, and the expansion of the use
of DNA "dragnets."

A. The Expansion of State DNA Databases to Cover More Classes of Criminals

State DNA databases originally sampled DNA only from sex offenders. n161
This was justified by the high recidivism rate among rapists and other sex
offenders n162 and the likelihood that they would leave DNA at the scene of
a crime. n163 DNA testing of sex offenders has been upheld in several cases,
most recently in the Second Circuit in Roe v. Marcotte. n164 State databases
quickly began to expand beyond sex offenders. Currently one third of states
collect DNA from persons convicted of serious felonies, while seven collect
from all felons. n165 Several more are either considering similar
legislation or have recently passed such legislation. n166 Some experts
believe that the current expansion trend will  [*947]  soon encompass
testing of all convicted felons - n167 more than one million people per
year. n168 Such expanded databases are justified largely because convicts
have reduced expectations of privacy, n169 studies show that serious
offenders often begin their criminal careers with smaller crimes, n170 and
many criminals are apt to be repeat offenders. n171

Many states are also expanding their databases to include DNA from convicted
burglars. As of March of 1999, fourteen states collected DNA samples from
burglars, n172 and several states are currently considering similar
legislation. n173 Many of the states passing such legislation rely on two
studies: a Florida Department of Law Enforcement study showing that
fifty-two percent of rapists in the state were previously convicted of
burglary n174 and a similar study in Virginia showing that in about half of
the cases where a hit was obtained through the DNA database the sample was
traced back to convicted burglars. n175 Other proponents of expanding
databases to include burglars cite the case of Isaac Jones. Jones was
 [*948]  eventually charged with fifty-one rapes in New York City, but he
was arrested only after a task force hunting for the assailant mistakenly
gunned down an innocent man named Amadou Diallo, shooting him forty-one
times. n176 It was later learned that Jones had been paroled for robbery in
1993; if he had been tested at that time, he would have been caught after
his first rape, preventing fifty further rapes and the shooting of Diallo.
n177 The Jones case and others like it bolster the position of those who
support expanding existing DNA databases to cover more classes of criminals.

B. The Expansion of State DNA Databases to Cover Arrestees

A few states have already taken the extreme step of passing legislation
requiring the DNA testing of all people arrested for a crime. South Dakota
passed a law in 1994 allowing the DNA testing of people who had simply been
arrested for a crime; however, in the summer of 1997, the law was changed to
permit only the collection of samples from convicted offenders. n178
Louisiana approved a similar bill, but a lack of funds has prevented its
implementation. n179 Currently three states - Louisiana, n180 Mississippi,
n181 and Kentucky n182 - require DNA samples from individuals who are merely
arrested for sexual felonies. n183

 [*949]  Similar practices are already in use in other countries. For
example, Canada tests all persons suspected of a violent crime. n184 In
Britain anyone convicted or charged with a recordable crime is tested. n185
Some feel that the United States is not likely to go as far as these
countries. Christopher Asplen, Executive Director of the National Commission
on the Future of DNA Evidence suggests, "In the United States, we have a
different perspective on privacy and on the extent to which we would be
willing to depend on a database." n186 Indeed, in 1991 the FBI advised
against conducting DNA testing for those convicted of misdemeanors. n187
Testing all arrestees would go even further. However, there have recently
been calls in the United States for testing of all criminal suspects as soon
as they are arrested, most notably from the seventeen hundred members of the
International Association of Chiefs of Police. n188 The group recently voted
unanimously to urge Congress to pass such a law, n189 arguing that the
expansion would lead to the solving of more crimes before the identified
criminals could strike again. n190 One recent public opinion poll indicated
that more than fifty-four percent of the individuals questioned felt
 [*950]  DNA should be taken from everyone arrested. n191 And in New York,
in December of 1998, Police Commissioner Howard Safir publicly called upon
the state legislature to consider expanding the state database to allow
collection of DNA from all arrestees. n192 Senator Bozek of Connecticut
introduced a similar bill to the Connecticut General Assembly in January of
1999. n193 This practice has not been ruled on in the courts, n194 but
public interest groups, such as the ACLU, plan to challenge it. n195 Former
U.S. Attorney General Janet Reno was said to have made "favorable noises"
towards testing arrestees. n196 A federal DNA study conducted by a committee
of the National Commission on the Future of DNA Evidence (Commission) in
July 1999 concluded that DNA testing of arrestees probably would be
constitutional. n197 However, the Commission  [*951]  advised against
immediate testing because it would overtax the system and cost too much
money. n198 The FBI has also recognized that lack of funds is one of the
major obstacles to testing arrestees. n199 But as technology improves and
testing methods become less expensive, n200 this will likely not be an
obstacle forever.

The Commission's report, in stating that testing of arrestees probably would
pass constitutional muster, indicates that the procedures for taking DNA
must be "minimally invasive to satisfy the Fourth Amendment prohibition
against unreasonable search and seizure." n201 The concern addressing the
invasiveness of DNA collection procedures is strongest when the DNA is
obtained from blood samples; the taking of blood has been ruled a search
within the meaning of the Fourth Amendment. n202 However, currently more and
more DNA testing is done through the use of cheek swabs, n203 which may not
even rise to the level of a Fourth Amendment search. n204 Additional
developments in DNA technology may leave this debate behind entirely. DNA
technology has now evolved to the point that a testable quantity of DNA can
be taken from a human  [*952]  fingerprint. n205 Some believe that this
development will go far in resolving the invasiveness issue, n206 especially
given the fact that courts have long upheld the practice of fingerprinting
arrestees and including the prints in searchable computerized databases.
n207 Furthermore, the parallel between fingerprints and DNA has been
judicially recognized: "the information derived from the blood sample is
substantially the same as that derived from fingerprinting - an identifying
marker unique to the individual from whom the information is derived." n208

Another question that arises if state DNA databases are expanded to cover
all arrestees is whether the DNA profiles taken should be expunged from the
database and the DNA samples themselves destroyed if the suspect is
determined to be innocent. n209 In other words, should an arrest  [*953]
itself be sufficient cause to include the DNA of the individual arrested in
a DNA database, even in the absence of an eventual finding of guilt?
Currently, all state DNA database statutes require some finding of guilt
before an individual's DNA is included in the database, and "most state
statutes have provisions that address whether ... [a] falsely convicted
individual's DNA profile should be expunged." n210 However, state statutes
vary on whether the DNA profile or the actual sample itself should be
destroyed, n211 and several states do not explicitly require expungement at
 [*954]  all. n212 This issue is even sharper when the debate centers on an
individual never convicted of the crime he or she was arrested for. A recent
report by FBI Director Louis Freeh stated that twenty-five percent of DNA
tests conducted at the FBI lab exonerate the individual whose DNA is tested
of the crime of which he is accused. n213 New York officials have stated
that if Police Commissioner Howard Safir's plan to test all arrestees is
approved, the samples taken from people found not guilty will be destroyed,
n214 but some critics express doubts as to whether the public can rely on
such promises. n215

C. The Expansion of the National DNA Database to Cover All Americans

Those opposed to expanding DNA databases fear that they will eventually
include everyone in the country, n216 becoming a type of genetic social
security number. n217 However, one of the primary shortcomings of DNA
databases is that criminals must first commit a crime and be caught to have
their DNA included in the system. n218 In Britain, where privacy safeguards
are not as strong as they are here, the Police Superintendents Association
recently called for the entire population to be DNA tested. n219 And in
Iceland, a law passed in December 1999 will  [*955]  allow DeCode Genetics
to develop a database of the entire population of the country; however, the
database will be used for medical research and not forensic identification.
n220 Nevertheless, given the courts' weakening of Fourth Amendment
protections, n221 setting up a national database containing the DNA profiles
of every American citizen might pass constitutional muster. n222

If such a database were established in the United States, it would likely be
accomplished mainly by taking DNA samples from babies at birth. Hospitals
have sent blood drawn from newborns to state labs to screen for hereditary
diseases since the 1960s, and some labs keep these samples indefinitely.
n223 Florida recently enacted a program whereby hospitals in the state would
voluntarily take a blood sample from newborns, which would be given to the
baby's parents in case the sample was ever needed to identify their child,
such as in the case of a kidnapping. n224 Florida State Legislator Bob
Starks plans to go one step further: he has filed a bill that would require
hospitals to participate in the child identification program, or "Chip."
n225

Taking an even more extreme step, Rudolph Giuliani, Mayor of New York,
stated in 1999 that he would have no objections to taking DNA  [*956]
samples from every infant and using them to create a comprehensive genetic
database for use in forensic identification and other areas. n226 Currently
the FBI says DNA testing of all infants is not realistic because of the cost
such a program would entail. n227 But it is widely accepted that the costs
of DNA testing will continue to decrease as technology improves; therefore,
such an obstacle probably will not exist forever. n228

D. The Expansion of the Use of DNA "Dragnets"

A DNA "dragnet" occurs when an entire class of individuals in an area (such
as males in a certain age range) is subjected to DNA sampling after a crime
is discovered. n229 The resulting profiles are compared against samples left
at the crime scene. n230 This process is used widely in Europe and has been
successful. n231 In Britain, Scotland Yard has demonstrated the ability to
persuade an entire town to submit to DNA screening. n232 DNA dragnets have
also been conducted in Germany n233 and France. n234

 [*957]  The legality of dragnet testing has been studied far less than that
of DNA databases, n235 and law enforcement agencies conducting such tests
have usually avoided legal problems by making the process voluntary. n236
However, those asked for samples are often told that if they refuse they
will become a suspect in the crime. n237 Though DNA dragnets have been
successful in other countries, the ACLU opposes such measures in the United
States, n238 and many assert that the Fourth Amendment prohibition against
unreasonable searches and seizures should prevent widespread use of such
dragnets in this country. n239 However, in 1994, the United States military
successfully conducted a DNA dragnet of American personnel stationed in
Babenhausen, Germany. n240 And despite concerns over the legality of such
tests in the United States, local police agencies have conducted them in San
Diego, California; Miami, Florida; Ann Arbor, Michigan; Lawrence,
Massachusetts; and Chevrely, Maryland. n241

 [*958]  Despite the debate over DNA dragnets in the United States, both
proponents and critics agree that as DNA testing becomes faster and cheaper,
large-scale DNA screening is likely to become more common. n242 The FBI has
taken no official position on whether DNA dragnets should be used in the
United States, and the issue is among those to be considered by the
Commission. n243

V. Conclusion

The current trend of expanding DNA databases should be closely monitored to
permit the continued enjoyment of their benefits: namely, more convictions
of the guilty and exonerations of the innocent. One thing that must be
remembered in any discussion of DNA evidence in general and DNA databases in
particular is just how fast the relevant technology is evolving and how this
affects the issues involved. n244 Until the  [*959]  Supreme Court weighs in
on such issues as mandatory testing of convicts, disposal of DNA samples,
and testing of arrestees, this area of criminal law is in a state of
constant flux, depending on how far lower courts will allow law enforcement
agencies to go in battling crime. Civil libertarians and opponents of
expanding DNA databases raise valid concerns that must be addressed. But in
light of the advances in solving crimes that DNA databases represent, the
minimal risk of genetic discrimination through RFLP and STR profiling, n245
the minimal invasion that new methods of testing represent, n246 prisoners'
reduced expectation of privacy, n247 and the precedent of computerized
fingerprint databases, n248 these expansions of the classes of criminals
that are tested should be upheld in court. DNA databases would streamline
the criminal justice system: by identifying a suspect almost immediately,
they would save time and money spent in all too often fruitless
investigations. n249 Furthermore, compelling statistics  [*960]  prove that
they have the power to exonerate untold numbers of suspects of crimes or
people already serving time for a crime they did not commit. n250 DNA gives
law enforcement the power to solve crimes that were previously unsolvable.
n251

Given the nonuniformity of state law in this sensitive area and the need for
equality across the board, the best approach to the future of the use of DNA
databases in the United States is probably to centralize control of the
disparate systems within one agency established solely for this purpose. The
classes of individuals subject to inclusion in the databases, the rules
governing the quality and manner of testing, and penalties for misuse of
such information would thus be standardized. n252 With this accomplished, we
will come closer than ever to the goals of enforcing the laws as written and
assuring those innocent of wrongdoing that they will never spend time in
prison for the crimes of another, while ensuring that the public can trust
those in control of such a powerful tool.

FOOTNOTES:
n1. DNA, or deoxyribonucleic acid, is found in every cell in the human body
and consists of two molecular strands, oriented in opposite directions,
which are made up of repeating sequences of one of four components called
nucleotides. See Leroy Hood & Lee Rowen, Genes, Genomes, and Society, in
Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era
3-5 (Mark A. Rothstein ed., 1997). The nucleotide bases, guanine (G),
cytosine (C), adenine (A), and thymine (T), are paired across the molecular
strands, and together form the familiar double-helix DNA molecule. See id.
at 4-5. Variations in the order of the nucleotide bases spell out units of
genetic information, the sequences of code known as genes. See Daniel J.
Kelves & Leroy Hood, The Code of Codes 15 (1992).

n2. See Ronald Bailey, Unlocking the Cells, Reason Magazine, Jan. 1, 2000,
at 50, 50. The capture of Colin Pitchfork, a 27-year-old baker in
Leicestershire, England, was the subject of Joseph Wambaugh's 1989 best
seller, The Blooding. See Joseph Wambaugh, The Blooding (1989). After the
killings of two teenage girls near the small English village of Narborough,
police investigating the crime requested that every man between the ages of
13 and 30 in three nearby villages, more than 5000 people, submit blood
samples for DNA analysis. See Jerry Adler & John McCormick, The DNA
Detectives, Newsweek, Nov. 16, 1998, at 66, 66. Pitchfork's DNA matched the
semen taken from the bodies, and his subsequent conviction made Pitchfork
the first murderer to be identified on the basis of his DNA. Id. It should
be noted, however, that Pitchfork was not identified originally through the
DNA match; he was arrested after police learned that he had convinced
another baker to take the test in his place and subsequently confessed to
the crime. See Robert J. Goodwin & Jimmy Gurule, Criminal and Scientific
Evidence 287 (1997).

n3. See Adler & McCormick, supra note 2, at 66. Additionally, the
exoneration of 17-year-old Rodney Buckland, originally suspected of
committing one of the murders, makes him the first person in history to be
cleared of a crime by DNA evidence. Id.

n4. The first use of DNA evidence in a United States court came in the 1987
trial in Orlando, Florida of accused rapist Tommy Lee Andrews. See Goodwin &
Gurule, supra note 2, at 287. Scientists determined that the semen from the
victim matched Andrews's DNA to a probability of one in ten billion. Id.
Andrews was subsequently convicted and sentenced to 22 years in prison. Id.

n5. See, e.g., Angus J. Dodson, DNA "Line-Ups" Based on a Reasonable
Suspicion Standard, 71 U. Colo. L. Rev. 221, 225 (2000) ("American
prosecutors currently use DNA evidence in more than 10,000 criminal
investigations each year."); Press Release, FBI National Press Office (Oct.
13, 1998), at http://www.fbi.gov/pressrm/pressrel/pressrel98/dna.htm
(reporting that as of June 1998 approximately 600,000 DNA samples had been
collected by the states).

n6. See Mark Holmberg, Leap of Faith and Science, Richmond Times-Dispatch,
Dec. 19, 1999, at A1, 1999 WL 4373354 (noting that the executive director of
the National Commission on the Future of DNA Testing compared DNA sampling
to fingerprinting).

n7. See, e.g., Erin Hallissy & Charlie Goodyear, How DNA Fights Crime, S.F.
Chron., Oct. 20, 1999, at A1, 1999 WL 2698469 (contrasting successful DNA
databasing of felons convicted of certain offenses in Florida and Virginia,
which has led to dozens of convictions in previously unsolved crimes, with
California's two-year backlog in DNA profile entry, which results in far
fewer convictions). Some of the advantages that DNA databases provide
include making convictions more likely, facilitating convictions without
undue plea bargaining, causing guilty defendants to plead guilty in the face
of such strong forensic evidence, convicting defendants who might not
otherwise be brought to trial, and exonerating some suspects before trial -
sparing both the expense of a trial and unnecessary discomfort and
embarrassment for the wrongfully accused. See Paul E. Tracy & Vincent
Morgan, Big Brother and His Science Kit: DNA Databases for 21st Century
Crime Control?, 90 J. Crim. L. & Criminology 635, 665 (2000).

n8. David Hench, Developing of DNA Database Falls Behind, Portland Press
Herald, Oct. 31, 1999, at A1, 1999 WL 26287400 (quoting Lt. Michael
Harriman, head of the Maine police crime lab).

n9. DNA Links Convict to 21-Year-Old Slaying; Evidence Likened to "The
Finger of God', The Record (N.J.), Mar. 14, 2000, at A5, 2000 WL 15804065
(quoting Jeanine Pirro, Westchester District Attorney).

n10. See Goodwin & Gurule, supra note 2, at 288 (""In rape cases, when the
semen has been matched with the defendant's and the chance that it came from
another person is 33 billion to 1, you don't need a jury.'" (quoting defense
attorney Robert Brower)).

n11. See George Bundy Smith & Janet A. Gordon, The Admission of DNA Evidence
in State and Federal Court, 65 Fordham L. Rev. 2465, 2465 (1997) (stating
that DNA evidence "can establish to a virtual certainty the presence or the
absence of a defendant at the scene of a crime"); see also DNA Database Next
Logical Step, Deseret News (Salt Lake City), Aug. 4, 1999, at A8, 1999 WL
23092648 ("Absent human error, technology has improved to the point that DNA
is one of the most accurate forms of identification available. DNA can match
a defendant to a crime scene with an accuracy of one in 1 billion."); cf. C.
Teddy Li, Boling v. Romer: Federal Courts Condone Forced Withdrawal of Blood
for DNA Data Banks Despite Constitutional Concerns, 1 J. Health Care L. &
Pol'y 421, 422 (""With the exception of identical twins, no two individuals
have the same DNA configuration.'" (quoting Dorland's Medical Dictionary 444
(28th ed. 1998))).

n12. As of March of 2000, all fifty states had established operational DNA
databases for sex offenses, and several states had included lesser crimes.
See Ala. Code 36-18-24 (Supp. 2000); Alaska Stat. 44.41.035 (Michie 2000);
Ariz. Rev. Stat. Ann. 13-4438 (West Supp. 2000); Ark. Code Ann. 12-12-1105
(Michie 1999); Cal. Penal Code 295 (West 1999); Colo. Rev. Stat. 17-2-201
(1998); Conn. Gen. Stat. Ann. 54-102g (West Supp. 2000); Del. Code Ann. tit.
29, 4713 (1997); Fla. Stat. Ann. 943.325 (West 1996 & Supp. 2001); Ga. Code
Ann. 24-4-60 (1995 & Supp. 2000); Haw. Rev. Stat. Ann. 706-603 (Michie
1999); Idaho Code 19-5501 (Michie 1997); 730 Ill. Comp. Stat. Ann. 5/5-4-3
(West 1997 & Supp. 2000); Ind. Code Ann. 10-1-9-1 (West Supp. 2000); Iowa
Code Ann. 13.10 (West 2000); Kan. Stat. Ann. 21-2511 (1995 & Supp. 2000);
Ky. Rev. Stat. Ann. 17.170 (Michie 1996); La. Rev. Stat. Ann. 15:605 (West
Supp. 2000); Me. Rev. Stat. Ann. tit. 25, 1571 (West Supp. 2000); Md. Code
Ann., Cts. & Jud. Proc. 10-915 (1998 & Supp. 2000); Mass. Gen. Laws Ann. ch.
22E, 2 (West Supp. 2000); Mich. Comp. Laws Ann. 28.171 (West Supp. 2000);
Minn. Stat. Ann. 299C.155 (West 1999); Miss. Code Ann. 45-3337 (2000); Mo.
Rev. Stat. 650.050 (Supp. 1992); Mont. Code Ann. 44-6-102 (1999); Neb. Rev.
Stat. 29-4104 (Supp. 2000); Nev. Rev. Stat. 176.0913 (2000); N.H. Rev. Stat.
Ann. 632-A:21 (Supp. 2000); N.J. Stat. Ann. 53:1-20.18 (West Supp. 2000);
N.M. Stat. Ann. 29-16-4 (Michie 1997); N.Y. Exec. Law 995-c (McKinney 1996 &
Supp. 2001); N.C. Gen. Stat. 15A-266.4 (1999); N.D. Cent. Code 31-13-03
(1996 & Supp. 1999); Ohio Rev. Code Ann. 2901.07 (West 1997 & Supp. 2000);
Okla. Stat. Ann. tit. 74, 150.27 (West 1995); Or. Rev. Stat. 137.076 (1999);
35 Pa. Cons. Stat. Ann. 7651.302 (West Supp. 2000); R.I. Gen. Laws 12-1.5-4
(2000); S.C. Code Ann. 23-3-610 (West Supp. 1997); S.D. Codified Laws
23-5-14 (Michie 1998 & Supp. 2000); Tenn. Code Ann. 40-35-321 (1997 & Supp.
2000); Tex. Gov't Code Ann. 411.142 (Vernon 1998); Utah Code Ann. 53-5-212.4
(1998); Vt. Stat. Ann. tit. 20, 1936 (2000); Va. Code Ann. 19.2-310.2
(Michie 2000); Wash. Rev. Code Ann. 43.43.752 (West 1998); W. Va. Code Ann.
15-2B-4 (Michie 2000); Wis. Stat. Ann. 165.77 (West 1997 & Supp. 2000); Wyo.
Stat. Ann. 7-19-402 (Michie 1999); see also Kathey Pruitt, House Oks DNA
Prisoner File, The Atlanta J. & Const., Mar. 10, 2000, at E1, 2000 WL
5445627. The proliferation of state DNA databases is due in large part to
federal funding available for such endeavors. See Tracy & Morgan, supra note
7, at 674-75.

n13. See, e.g., Alaska Stat. 44.41.035 (Michie 2000) (requiring a DNA sample
from anyone convicted of a crime against a person); Conn. Gen. Stat. Ann.
54-102g (West Supp. 2000) (stating that DNA samples will be taken from
anyone convicted of a criminal offense against a minor, any sexual offense,
or a felony committed for a sexual purpose); Or. Rev. Stat. 137.076 (1999)
(including DNA samples not only from those convicted of sexual offenses but
also those convicted of burglary or assault in the first degree); see also
Michelle Hibbert, DNA Databanks: Law Enforcement's Greatest Surveillance
Tool?, 34 Wake Forest L. Rev. 767, 771, 775 (1999) (explaining that while
states have different policies concerning DNA collection for felonies and
misdemeanors, all states require samples from convicted sex offenders).

n14. Hugh McCann, Military Uses DNA for New High-Tech Dogtag, Det. News,
Mar. 13, 1995, at B5, 1995 WL 7234192 (referring to a statement by Lt. Col.
Victor Weedn, Chief of the Armed Forces DNA Identification Registry).

n15. Douglas J. Gillert, Who are You? DNA Registry Knows, Am. Forces Press
Service, July 1998, at http://www.defenselink.mil/news/Jul1998/n07131998
9807131.html; see also Robert Craig Scherer, Mandatory Genetic Dogtags and
the Fourth Amendment: The Need for a New Post-Skinner Test, 85 Geo. L.J.
2007, 2009 (1997). The assistant secretary of defense was ""authorized to
establish policies and requirements for the use of DNA analysis to aid in
the identification of remains,'" and to ""establish a registry to carry out
those policies and meet those requirements.'" Id. (quoting Memorandum No.
47803 from the deputy secretary of defense (Dec. 16, 1991)).

n16. Gillert, supra note 15; see also Scherer, supra note 15, at 2007
("Every American servicemember is compelled to give blood and tissue samples
to the government."); Richard A. Bornstein, Note, Genetic Discrimination,
Insurability, and Legislation: A Closing of the Legal Loopholes, 4 J.L. &
Pol'y 551, 571 n.82 (1996) ("The military has collected and stored samples
from active duty and reserve troops since June 1992."); McCann, supra note
14, ("Every raw recruit provides a specimen of his or her blood and saliva
... .").

n17. Gillert, supra note 15; see also Scherer, supra note 15, at 2024-25
(noting that under the Registry program, soldiers' samples are stored in a
"freezers in suburban Maryland"); Tom Bowman, DNA is Now Military's ID of
Choice, Balt. Sun, July 19, 1993, at 1B, 1993 WL 7375510 (mentioning the
Gaithersburg facility).

n18. Gillert, supra note 15; see also Scherer, supra note 15, at 2007.

n19. See Scherer, supra note 15, at 2011.

n20. See Jean E. McEwen, DNA Data Banks, in Genetic Secrets, supra note 1,
at 231, 239.

N21. Scherer, supra note 15, at 2010.

n22. Id.

n23. Id.; see also Gillert, supra note 15.

n24. Privacy Risk Seen In DNA Databanks, Omaha World Herald, Nov. 7, 1994,
at 1, 1994 WL 8627395.

n25. See Holmberg, supra note 6; see also Hibbert, supra note 13, at 774.

n26. For state laws authorizing DNA databases, see Ala. Code 36-18-24 (Supp.
1999); Alaska Stat. 44.41.035 (Michie 1998); Ariz. Rev. Stat. Ann. 31-281
(West 1996 & Supp. 1999); Ark. Code Ann. 12-12-1109 (Michie 1999); Cal.
Penal Code 296.1 (West 1999 & Supp. 2000); Colo. Rev. Stat.
17-2-201(4)(g)(I) (1999); Conn. Gen. Stat. Ann. 54-102(g) (Supp. 2000); Del.
Code Ann. tit. 29, 4713(b) (1997 & Supp. 1998); Fla. Stat. Ann. 943.325
(West 1996 & Supp. 2000); Ga. Code Ann. 24-4-60 (1995 & Supp. 1999); Haw.
Rev. Stat. 706-603(3) (1993 & Supp. 1998); Idaho Code 19-5507 (1977 & Supp.
1999); 730 Ill. Comp. Stat. Ann. 5/5-4-3 (West 1997 & Supp. 2000); Ind. Code
Ann. 10-1-9-10 (1999); Iowa Code 13.10 (1995 & Supp. 1999); Kan. Stat. Ann.
21-2511 (West 1995 & Supp. 1999); Ky. Rev. Stat. Ann. 17.170 (Michie 1996 &
Supp. 1999); La. Rev. Stat. Ann. 15:609 (West 1998 & Supp. 2000); Me. Rev.
Stat. Ann. tit. 25, 1574 (West Supp. 1998); Md. Ann. Code art. 88B, 12A
(1998 & Supp. 1999); Mass. Gen. Laws Ann. ch. 22E, 3 (West 1998); Mich.
Comp. Laws Ann. 750.520m (West 1991 & Supp. 1999); Minn. Stat. Ann. 609.3461
(West Supp. 1999); Miss. Code Ann. 45-33-37 (Supp. 2000); Mo. Ann. Stat.
650.055 (West Supp. 2000); Mont. Code Ann. 44-6-102 (1999); Neb. Rev. Stat.
29-4106 (Supp. 1999); Nev. Rev. Stat. 176.0913 (1998); N.H. Rev. Stat. Ann.
632-A:21 (1996 & Supp. 2000); N.J. Stat. Ann. 53:1-20.20 (West Supp. 1999);
N.M. Stat. Ann. 29-16-2 (Michie 1997 & Supp. 1999); N.Y. Exec. Law 995
(McKinney 1996); N.C. Gen. Stat. 15A-266.4 (1999); N.D. Cent. Code 31-13-03
(1997 & Supp. 1999); Ohio Rev. Code Ann. 2901.07 (West 1999 & Supp. 1999);
Okla. Stat. Ann. tit. 74, 150.27a (West 1995 & Supp. 2000); Or. Rev. Stat.
137.076 (1999); 35 Pa. Cons. Stat. Ann. 7651.306 (West Supp. 1999); R.I.
Gen. Laws 12-1.5-8 (Supp. 2000); S.C. Code Ann. 23-3-620(B)(1) (West Supp.
1998); S.D. Codified Laws 23-5-14 (Michie 1998 & Supp. 2000); Tenn. Code
Ann. 38-6-113 (1997 & Supp. 1999); Tex. Gov't. Code Ann. 411.148 (West 1998
& Supp. 2000); Utah Code Ann. 53-10-404 (Supp. 1999); Va. Code Ann.
19.2-310.2 (Michie 1995 & Supp. 1999); Vt. Stat. Ann. tit. 20, 1933 (Supp.
1999); Wash. Rev. Code Ann. 43.43.754 (West 1998 & Supp. 2000); W. Va. Code
15-2b-6 (Michie 2000 & Supp. 2000); Wis. Stat. Ann. 165.76 (1997 & Supp.
1999); Wyo. Stat. Ann. 7-19-403 (Michie 1999).

n27. R.I. Gen. Laws 12-1.5.-4 (Supp. 2000); see also Nicholas Wade, FBI
Ready to Open National Database of DNA Samples, Austin Am.-Statesman, Oct.
12, 1998, at A4, 1998 WL 3627844 ("The final pieces fell into place in June
when Rhode Island became the last state to set up a DNA database.").

n28. See, e.g., R.I. Gen. Laws 12-1.5-2 (Supp. 2000); Tex. Gov't. Code Ann.
411.148 (Vernon 1998 & Supp. 2000); Va. Code Ann. 19.2-310.2 (Michie 1995 &
Supp. 1999); see also McEwen, supra note 20, at 232-33 (surveying state laws
that generally require violent sex offenders and other violent felons to
submit to DNA testing).

n29. See, e.g., Mich. Comp. Laws Ann. 750.520m (West 1991 & Supp. 1999);
R.I. Gen. Laws 12-1.5-4 (Supp. 2000); Tex. Gov't. Code Ann. 411.142 (Vernon
1998 & Supp. 2000); Va. Code Ann. 19.2-310.2 (Michie 1995 & Supp. 1999); see
also McEwen, supra note 20, at 233.

n30. Bailey, supra note 2, at 50.

n31. See McEwen, supra note 20, at 223 ("More than 250,000 convicted
offender forensic database samples have been collected nationwide, with
Virginia, Florida, and California having the largest number.").

n32. Holmberg, supra note 6.

n33. Joe Mahr, New Law Allows Collection of Criminals' DNA, St. J.-Reg.
(Springfield, Ill.), Aug. 16, 1999, at 1, 1999 WL 23246672.

n34. Tom Spalding, State Wants DNA Samples From Convicted Burglars, Sarasota
Herald-Trib., Nov. 16, 1999, at 1B, 1999 WL 29248390.

n35. Hallissy & Goodyear, supra note 7.

n36. Hench, supra note 8. The failure of the Maine database to solve crimes
stems from inadequate funding, which has prevented the state police crime
lab from hiring the analysts required to process the 2700 blood samples
already collected. Id.

n37. Press Release, U.S. Department of Justice, Federal Bureau of
Investigation, The National DNA Index System (Oct. 13, 1998), available at
http://www.fbi.gov/pressrm/pressrel/pressrel98/dna.htm.

n38. See Press Release, U.S. Department of Justice, Federal Bureau of
Investigation (July 15, 1999), available at
http://www.fbi.gov/pressrm/pressrel/pressrel99/ncic2000.htm.

n39. DNA Identification Act of 1994, Pub. L. No. 103-322, 108 Stat. 2068
(codified at 42 U.S.C. 14131(a)).

n40. 42 U.S.C.A. 14132(a) (West Supp. 2000).

n41. See Press Release, U.S. Department of Justice, supra note 37.

n42. Id.

n43. Id.

n44. Id.

n45. Press release, U.S. Department of Justice, Federal Bureau of
Investigation, What's the Difference Between NDIS and CODIS? (Oct. 13,
1998), available at http://www.fbi.gov/pressrm/pressrel/pressrel98/diff.htm.

n46. Id.

n47. Id. Proposed legislation would also allow CODIS to collect samples from
persons convicted in federal, military, and District of Columbia courts. See
Statement of Louis J. Freeh, Dir. of the Fed. Bureau of Investigation Before
the Subcomm. for the Dep'ts of Commerce, Justice, and State, the Judiciary,
and Related Agencies of the Senate Comm. on Appropriations, 106th Cong.
(Mar. 24, 1999), 1999 WL 170227 (F.D.C.H.).

n48. U.S. Department of Justice, What's the Difference Between NDIS and
CODIS?, supra note 45.

n49. Id.

n50. Press Release, U.S. Department of Justice, Federal Bureau of
Investigation, CODIS Program Overview (Oct. 8, 1998), available at
http://hope dna.com/docs/fbi codis 1.htm.

n51. Id.

n52. Id.

n53. Dr. Dwight E. Adams, Forensic DNA Analysis, Statement Before the
Subcommittee on Crime of the House Judiciary Committee (March 23, 2000),
available at 2000 WL 342535.

n54. Press Release, U.S. Department of Justice (Oct. 13, 1998), available at
http://www.fbi.gov/pressrm/pressrel/pressrel98/dna.htm (on file with author)
("all fifty states have been invited to participate in NDIS and it is
expected that all states will contribute their convicted offender DNA
profiles to NDIS.").

n55. Id.

n56. Federal Bureau of Investigation, FBI Laboratory: Forensic Systems
(October 2000), available at
http://www.fbi.gov/programs/lab/org/systems.htm.

n57. See Richard Willing, Mismatch Calls DNA Tests Into Question; Case in
Britain Was "To be Expected' as Databases Include More Samples, USA Today,
Feb. 8, 2000, at 3A, 2000 WL 5768586 ("The FBI currently tests DNA at 13
points of identification. But states, which maintain their own databases,
often test fewer loci.").

n58. See Deborah F. Barfield, Comment, DNA Fingerprinting - Justifying the
Special Need for the Fourth Amendment's Intrusion into the Zone of Privacy,
6 Rich. J.L. & Tech. 27, P 4-5 (2000), at
http://www.richmond.edu/jolt/v6i5/note2.html.

n59. DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 106-546,
2(b)(3), 114 Stat. 2726 (2000) (in order to qualify for a grant, a state
must "include a certification that the Sate has determined, by statute,
rule, or regulation, those offenses under State law that shall be treated
... as qualifying state offenses").

n60. H.R. 2810, 106th Cong. (1999); S. 903, 106th Cong. (1999).

n61. Id. at 3(a).

n62. Id. at 2(b) ("The plan developed under subsection (a) shall - (1)
require that each laboratory performing DNA analyses satisfy quality
assurance standards and utilize state-of-the-art testing methods, as set
forth by the Director of the [FBI] ... .").

n63. Id. at 2(b)(3) ("[A] state in which a participating forensic laboratory
is located must provide for the automatic removal of DNA analysis records
when the underlying conviction for the qualifying offense is vitiated or
expunged ... .").

n64. See, e.g., Warren R. Webster, DNA Database Statutes & Privacy in the
Information Age, 10 Health Matrix 119, 129 (2000) (criticizing the failure
of legislatures in addressing privacy issues with regard to DNA databases
but admitting that "CODIS ... appears to be an effective weapon in fighting
sex crimes"). But see, Paul E. Tracey, Ph.D. & Vincent Morgan, Big Brother
and His Science Kit: DNA Databases for 21st Century Crime Control?, 90 J.
Crim. L. & Criminology 635, 686-87 (2000) (arguing that DNA databases will
not be helpful in solving property crimes).

n65. See Robyn Y. Nashimi, Forensic Uses of DNA Tests, in Legal and Ethical
Issues Raised by the Human Genome Project 296, 301 (Mark A. Rothstein ed.,
1991) (remarking that the reliability of DNA testing has been questioned in
some court cases).

n66. See id. at 304. This concern can be summarized as follows:


DNA technologies per se are reliable ... . Nevertheless, a reliable
procedure can be used carelessly ... . Thus, while DNA tests can, under
routine conditions of use, be performed reproducibly within a laboratory,
across many different laboratories, and in the hands of different
practitioners, at issue is what level of standards constitutes proper
performance?


Id. at 301.

n67. See Goodwin & Gurule, supra note 2, at 285.

n68. 545 N.Y.S.2d 985 (Sup. Ct. 1989).

n69. See id. at 997-98. The Castro case involved a blood sample taken from a
watch at the scene of a murder and sent for DNA testing to the Lifecodes
Corporation. Id. at 985-86; see also Kelves & Hood, supra note 1, at 197.
Lifecodes originally identified the sample as matching the defendant's DNA
at odds of one in one million. Kelves & Hood, supra note 1, at 197. But
after further analysis of their testing procedures it was discovered that
the sample was not reliable enough to support an assertion that it did or
did not match. Castro, 545 N.Y.S.2d at 997-98; see also Kelves & Hood, supra
note 1, at 201.

n70. See 42 U.S.C. 14131(a) (1994).

n71. See 42 U.S.C. 14132(b)(2) (1994).

n72. See 42 U.S.C. 14131(a)(1)(C).

n73. N.Y. Comp. Codes R. & Regs. tit. 9, 6190.1-.6, 6192.1-.10 (2000).

n74. N.Y. Exec. Law 995-b(1) (McKinney 1996).

n75. Id. at 995-b(2)(b).

n76. Id. at 995-b(3)(b).

n77. See Hibbert, supra note 13, at 807; see also Md. Ann. Code, art. 88B
12A(k)(3)(ii) (Supp. 2000) ("Each analyst performing DNA analyses ... shall
undergo, at regular intervals not exceeding 180 days, external proficiency
testing, including at least one external blind test ... .").

n78. See Edward Connors, Convicted by Juries, Exonerated by Science: Case
Studies in the Use of DNA Evidence to Establish Innocence After Trial 6
(1996) (stating that by 1996, 46 states admitted DNA evidence in criminal
proceedings, 43 had ruled on the technology, and in 3 states statutes
required admission of DNA evidence). See also Goodwin & Gurule, supra note
2, at 285 ("The overwhelming majority of courts presented with the question
have admitted DNA evidence ... . "By 1990 more than 2000 U.S. court cases in
49 states and the District of Columbia had used DNA tests.'" (quoting
Commonwealth v. Crews, 640 A.2d 395, 400 n.3 (Pa. 1994))). Additionally,
several courts have taken judicial notice of the reliability of DNA theory
and testing techniques. See, e.g., United States v. Jakobetz, 955 F.2d 786,
799 (2nd Cir. 1992) ("Given the findings made by the district court, and
after careful consideration and review by this court, it appears that in
future cases with a similar evidentiary issue, a court could properly take
judicial notice of the general acceptability of the general theory and the
use of these specific [RFLP analysis] techniques."); Taylor v. State, 889
P.2d 319, 338-39 (Okla. Crim. App. 1995) ("We emphasize that while this
evidence is now generally admissible, its weight and credibility remain
subject to attack through cross-examination and testimonial challenges.").

While concerns about the reliability of DNA evidence and its admissibility
in court per se have largely disappeared, in May of 1999 a superior court
judge in San Francisco, California, held that STR DNA testing (for a
description of STR testing, see infra note 96) was scientifically unproven,
and therefore inadmissible in court. See Larry D. Hatfield, Judge Rules New
DNA Test Not Admissible, San Diego Union-Trib., May 8, 1999, at A3, 1999 WL
4067304. However, the ruling conflicts with an earlier ruling by another San
Francisco superior court judge, who found STR testing was scientifically
valid and admissible, and was widely vilified. See id. (quoting Ed Blake, a
recognized expert on DNA evidence, as stating, ""What you have here is an
arrogant, ignorant, stupid judge who is unable to get through the smoke
thrown at him by a very skilled lawyer'"). Many expect that the ruling will
be overturned. See id.

n79. See Bailey, supra note 2, at 50.

n80. See, e.g., Carey Goldberg, Sharper DNA Techniques Match Crimes,
Criminals, The Commercial Appeal (Memphis, TN), Feb. 22, 1998, at A5, 1998
WL 3665366 ("In the aftermath of the DNA debacle at the O.J. Simpson murder
trial, in which the defense accused the Los Angeles Police Department of
contaminating DNA evidence, concerns also linger over whether the police and
laboratory workers are being properly trained to handle such potentially
damning evidence."); Raymond Bonner & Sara Rimer, A Closer Look at Five
Cases That Resulted in Executions of Texas Inmates, N.Y. Times, May 14,
2000, at A30 (describing the case of Odell Barnes, a Texas death row inmate
who was executed on March 1, 2000, despite the fact that a forensic
chemist's analysis found that the small amount of blood on Barnes's
coveralls contained high levels of citric acid, a preservative used with
blood stored in vials, indicating that the blood was either planted or
accidentally spilled).

n81. See, e.g., Ruth Hubbard & Elijah Wald, Exploding the Gene Myth 156-57
(1993) (expressing concern that, despite assurances from the government that
DNA profiles will only be used for law enforcement purposes, DNA profiles
will be used in other ways that "endanger our fragile guarantees of civil
liberties and privacy"); Bob Groves, New Privacy Fight is All in the Genes,
The Record (New Jersey), July 18, 1999, at N4, 1999 WL 7107775 ("Ubiquitous
genetyping, they [civil libertarians] fear, would subject every citizen to
government surveillance on the most invasive level, and trample individual
rights ... .").

n82. McEwen, supra note 20, at 238.

n83. Wade, supra note 27.

n84. See McEwen, supra note 20, at 238; see also William Jackson, FNI's Data
Is on a National Net, Gov't Computer News, Oct. 11, 1999, at 1999 WL
10031241 (discussing the security requirements of the FBI's national
forensics network, which combines CODIS with the Criminal Justice
Information Services network); Patricia Loftus, DNA Typing in Corrections:
The FBI's Combined DNA Index System Helps Corrections and Law Enforcement
Professionals Monitor Inmates and Solve Crimes, Corrections Today, July
1999, at 68, 70 (discussing the CODIS encryption technology).

n85. 42 U.S.C. 14133(c) (1994). State laws penalizing unauthorized
disclosures are mixed. See, e.g., Ala. Code 36-18-28 (2001) (Class C
felony); Ark. Code. Ann. 12-12-1115 (Michie 1999) (Class A misdemeanor); La.
Rev. Stat. Ann. 15:617(A) (West 2001) (fine of not more than $ 500,
imprisonment with or without hard labor for not more than six months, or
both); Me. Rev. Stat. Ann. tit. 25 1578(2) (West 1999) (Class E crime);
Mass. Gen. Laws Ann. ch. 22E, 12 (West 2000) (fine of not more than $ 1000,
imprisonment for not more than six months, or both); N.J. Stat. Ann.
53:1-20.26 (West 2001) (disorderly persons offense); N.M. Stat. Ann.
29-16-12 (Michie 2000) (fourth degree felony). Notably, in Rhode Island and
Vermont, civil actions are authorized in addition to criminal penalties.
See, e.g., R.I. Gen. Laws 12-1.5-15 (2000) (allowing in addition to
misdemeanor charges, a civil action for damages, injunctive relief, and
attorneys fees); Vt. Stat. Ann. tit. 20 1941 (2000) (allowing in addition to
imprisonment no more than one year and a fine of not more than $ 10,000, or
both, a civil action for equitable relief and punitive damages). With the
threat of a punitive damages award in a civil trial, Vermont may impose the
stiffest penalties among the states that penalize unauthorized disclosure of
DNA data.

n86. 42 U.S.C. 14132(b)(3)(A)-(C) (1994).

n87. See, e.g., Cal. Penal Code 295(c) (West 2001); Idaho Code 19-5514(4)
(Michie 2000); Ky. Rev. Stat. Ann. 17.175(2) (Banks-Baldwin 2001); N.H. Rev.
Stat. Ann. 632-A:22 (2000); N.M. Stat. Ann. 29-16-2 (Michie 2000); N.C. Gen.
Stat. 15A-266.8(a) (2000); N.D. Cent. Code 31-13-06 (1999); Ohio Rev. Code
Ann. 109.573(B)(2) (West 2000); Va. Code Ann. 19.2-310.5 (Michie 2000); W.
Va. Code Ann. 15-2B-10(b) (Michie 2000).

n88. See McEwen, supra note 20, at 238 (noting that there have been no
reported instances of unauthorized dissemination of either DNA samples or
DNA data).

n89. See Groves, supra note 81 (""Genetic discrimination threatens to create
an underclass of citizens who are uninsurable and unemployable, at enormous
public financial and moral cost.'" (quoting Mary Davidson, a Washington
social worker and genetic rights advocate)); E. Donald Shapiro & Michelle L.
Weinberg, DNA Data Banking: The Dangerous Erosion of Privacy, 38 Clev. St.
L. Rev. 455, 465-72 (1990).

n90. See Bruce Hilton, Dialog Between DNA Discoverers Didn't Include These
Debates, Star Trib. of the Twin Cities (Minneapolis & St. Paul), Nov. 18,
1998, at 10A, 1998 WL 6376693; see also Groves, supra note 81 (providing
examples of genetic discrimination, including an individual who was denied a
job after testing positive for Klinefelter's syndrome in a routine
pre-employment physical).

Critics also point to past instances in which the government has abused
supposedly confidential information. For example, in the 1940s, J. Edgar
Hoover obtained the military's fingerprint files. See Mark Schoofs, Genetic
Justice, Village Voice (N.Y.), Nov. 18, 1997, at 44, 1997 WL 11417544.
Similarly, in World War II the government used census information to aid in
rounding up Japanese Americans for internment camps. See Paul Barton, Chabot
Urges Limitation on DNA Storage; Privacy Rights Cited over Federal Databank,
Cincinnati Enquirer, Sept. 16, 1999, at B11, 1999 WL 9454646.

n91. 42 U.S.C. 14132(b)(3)(A)-(C) (1994) (stating that the DNA samples and
analysis are to be disclosed "to criminal justice agencies for law
enforcement identification purposes," in "judicial proceedings," and also
may be used "for criminal defense purposes").

n92. 42 U.S.C. 14132(b)(3)(D).

n93. The following language is typical of several state statutes enumerating
the uses of DNA data in addition to its role in criminal investigations and
prosecutions:


Because of the nature of genetic identification certain occasions may arise
when genetic information may serve an array of humanitarian purposes,
including but not limited to, the identification of human remains from
natural or mass disasters or the identification of missing, deceased or
unidentified persons.


Ala. Code 36-18-20 (Michie 1999) (emphasis added). See also, e.g., Ind. Code
Ann. 10-1-9-13 (Michie 1999); Mass. Gen. Laws Ann. ch. 22E, 10 (West 2000);
Mo. Ann. Stat. 650.052 (West 2000); N.J. Stat. Ann. 53:1-20.21 (West 2000);
Pa. Stat. Ann. tit. 35, 7651.308 (West 2000); S.C. Code Ann. 23-3-640 (Law.
Co-op. 2000); Tex. Gov't Code Ann. 411.143 (Vernon 2000).

Other states, such as Rhode Island, strictly limit the use of its DNA
database information to law enforcement related purposes. See R.I. Gen. Laws
12.1.5-10(3)-(4) (1999) ("DNA samples and DNA records collected under this
chapter shall never be used ... for the purpose of obtaining information
about physical characteristics, traits or predispositions for disease."
(emphasis added)); see also Christopher Rowland, DNA Testing of Felons Gains
a Foothold; The State Senate and House Have Both Voted to Support a Plan to
Gather Genetic Samples from Violent Criminals, and the ACLU has Declined to
Oppose It, J. Bull. (Providence, R.I.), Apr. 23, 1998, at A1, 1998 WL
6514786 (explaining that Rhode Island permits DNA samples to be used only
for linking a suspect to a crime or identifying the remains of missing
persons). This measure was taken to assure that the ACLU would not challenge
the Rhode Island DNA database bill. Id.

n94. Currently there is no genetic privacy legislation on the federal level.
See Ray Henry, DNA Privacy a Priority, Profs Say, Daily Free Press (Boston
Univ.), Sept. 29, 1999,
http://www.collegepublisher.com/media/paper87/DFPArchive/cityscope/0929992.cfm
(last visited Jan. 3, 2001). This is due in large part to the fact that few
genetic discrimination cases have been reported or prosecuted nationally.
See Groves, supra note 81.

However, bills prohibiting genetic discrimination and preserving genetic
privacy are currently pending in a number of states. See, e.g., S. 225, 21st
Leg., 2d Sess. (Ala. 1999); S. 1567, 55th Leg., 2d Reg. Sess. (Idaho 2000);
H.R. 2442, 79th Leg., 2001 Reg. Sess. (Kan. 2001); H.R. Con. Res. 36, 90th
Leg., 1999 Reg. Sess. (Mich. 1999); S. 114, 71st Leg. Assem. (Or. 2001);
H.R. 1176, 75th Leg. Assem. (S.D. 2000); S. 13, 77th Leg. (Tex. 2001).

In 1996 New Jersey passed a Genetic Privacy Act, N.J. Stat. Ann. 10:5-43
(West 2000), which prevents employers and insurance companies from
discriminating against people on the basis of their genetic information and
makes genetic information the personal property of the individual, but as of
February 2001, the law had yet to be tested in court. Similarly, Article
21.73 of the Texas Insurance Code states that "[a] group health benefit plan
issuer may not use genetic information to reject, deny, limit, cancel,
refuse to renew, increase the premiums for, or otherwise adversely affect
eligibility for or coverage under the group health benefit plan." Tex. Ins.
Code Ann. art. 21.73, 3(a) (Vernon Supp. 1999). The statute also holds that
refusal to submit to a DNA test may not be used in the same manner. Id.
3(e).

n95. RFLP stands for Restriction Fragment Length Polymorphism. See Kelves &
Hood, supra note 1, at 383. It has been in use since 1986. See W.J. Wall,
Whose DNA is It Anyway?, New Statesman & Soc'y, Dec. 8, 1995, at 20-21. RFLP
testing works through a six-step process:


1) Extraction. The DNA is chemically extracted from the blood sample and
purified to obtain a high molecular DNA.

2) Fragmentation. The DNA molecule, too large to deal with as a single unit,
is then cut into fragments by a restricting enzyme which, depending upon the
enzyme selected, cuts the DNA fragment precisely at a designated point.

3) Electrophoresis. The DNA fragments are then placed in an agarose gel
between two electrically charged poles which assist in separating the
fragments by size, the smaller fragments moving more readily through the gel
than the large. The end result is an orderly pattern of the fragments in
parallel lines.

4) Southern Blotting. Named for Dr. Ed Southern who pioneered the process in
the mid-1970s, the DNA band pattern in the agarose gel is then transferred
to a nylon membrane which resembles a sheet of heavy blotting paper. During
this process, the DNA strands are "unzipped" from one another at their base
pairings.

5) Hybridization. Radioactive tagged probes, which are small DNA fragments
developed in the laboratory, are then introduced onto the nylon membrane.
The probes locate and attach themselves to recognized complementary base
sequences, in essence "zipping" back parts of the DNA fragments.

6) Autoradiograph. The excess probes are washed away and the nylon membrane
is then placed next to a sheet of x-ray film and exposed for several days.
The end product is a series of dark parallel bands resembling the Universal
Bar Codes on labels commonly found in retail stores to identify stacks of
merchandise. The result is known as an autoradiograph or commonly an
autorad. This is then the DNA fingerprint.


State v. Davis, 814 S.W.2d 593, 598-99 (Mo. 1991). Once the RFLP analysis is
complete, the DNA profiles are compared to see if their band patterns match.
See Goodwin & Gurule, supra note 2, at 290. RFLP is the most common form of
DNA identification testing in use today and takes four to six weeks to
complete. See id.

n96. STR stands for Short Tandem Repeats, which are repeating blocks of DNA.
Wall, supra note 95, at 20. The testing process works by using a system
called the Polymerase Chain Reaction (PCR) to amplify stretches of DNA
containing the STRs and thus to create a profile. See id. The STR system
examines 13 loci on a person's DNA. See Bailey, supra note 2, at 50. Testing
one locus gives a 1 in 500 chance that a particular sample came from a
particular individual; testing all 13 reduces the odds of misidentifying a
suspect to 1 in 82 billion. See id. Beside greater accuracy, STR testing
offers several advantages over the older RFLP method. For one thing, at $ 50
a profile it is significantly cheaper. See id. Additionally, the analysis
can be done on far smaller samples than the earlier method, and so can be
done on all kinds of human material, "from dandruff to old and damaged
samples of blood and sperm." The method can work on old fragments of DNA
damaged by bacteria or fungi (such as from a badly decomposed body), which
may limit RFLP analysis. See id. The FBI uses the STR method to prepare
profiles entered into the CODIS database. See Mike Pezzella, FBI DNA Dragnet
to Track Fugitives in 50 States, Biotech. Newswatch, Oct. 19, 1998, at 1,
1998 WL 8765919.

n97. See McEwen, supra note 20, at 237 ("RFLP analysis techniques ... are
genetically uninformative."); Wade, supra note 27 ("All that goes into the
computerized DNA databases is ... the STR measurements. Nothing about a
person's health or appearance can be divined from the STR[ ]s.").

n98. See McEwen, supra note 20, at 237.

n99. See id. at 238.

n100. Wis. Stat. 165.77(2)(a)(3).

n101. See, e.g., La. Rev. Stat. Ann. 15:606 (West Supp. 1999); N.J. Stat.
Ann. 53:1-20.21 (West Supp. 1999); Okla. Stat. Ann. tit. 74, 150.27a(A)
(West 1995 & Supp. 1999). The DoD Registry also retains samples, but a key
difference is that the DoD does not profile the samples until the need
arises. See McEwen, supra note 20, at 239.

n102. See McEwen, supra note 20, at 237 ("The major privacy issues in DNA
databanking arise not from the maintenance of the DNA data but from the
retention of the samples themselves."); Guy Gugliotta, Rush to Use of DNA
Sampling Raises Question About Right to Privacy, L.A. Times, Sept. 5, 1999,
at A12, 1999 WL 26172584 (noting that the ACLU and other advocates are
concerned about states' failure to destroy samples after DNA analysis).

n103. Comm. on DNA Tech. in Forensic Sci., Nat'l Research Council (U.S.),
DNA Tech. in Forensic Sci. 122 (1992).

n104. See Nat'l Comm'n of the Future of DNA Evidence, Nat'l Inst. of
Justice, The Future of Forensic DNA Testing: Prediction of the Research and
Development Working Group 36 (2000).

n105. See Forensic DNA Analysis: Joint Hearing before the Subcomm. on Civil
and Constitutional Rights of the House Comm. on the Judiciary and the
Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 102d
Cong., 1st Sess., at 93, 243 (1991) (statement of Robyn Y. Nishimi, Office
of Technology Assessment and report of N.Y. State Forensic DNA Analysis
Panel, Sept. 6, 1989).

n106. Id. at 28 (statement of John W. Hicks, Assistant Director for the FBI
Laboratory).

n107. Dean Chadwin, The DNA War: How Two Marines Fought the Military's
Genetic Roundup, The Village Voice (N.Y.), May 14, 1996, at 23, 1996 WL
5616597 (""I asked, what else will it be used for, who else is going to have
access to it, and how long are you [the clinic workers taking samples for
the military] going to keep it?' recalls Mayfield. "All the answers were,
"We don't know."'").

n108. Mayfield v. Dalton, 901 F. Supp. 300 (D. Haw. 1995). The suit alleged
that the nonconsensual collection of DNA for the Registry violated the
First, Ninth, and Fifth Amendments, as well as the Fourth Amendment
prohibition against unreasonable search and seizure. Id. at 303.

n109. Id. at 305-06 (holding that the plaintiffs refused to show that any
other service members opposed the Registry).

n110. Id. at 304-05 (finding that the military "demonstrated a compelling
interest in both its need to account internally for the fate of its service
members and in ensuring the peace of mind of their next of kin and
dependents in time of war," and that "measured against this interest, the
minimal intrusion presented by the taking of oral swabs for the military's
DNA registry ... is not an unreasonable seizure and thus is not prohibited
by the Constitution." (emphasis in original)).

n111. Mayfield v. Dalton, 109 F.3d 1423, 1425 (9th Cir. 1997) ("We agree
with the government that Mayfield and Vlacovsky's challenge is moot because
they are no longer subject to the DNA collection program, and face only a
remote possibility that they may ever be subject to the repository policies
they seek to challenge."). The Marines were court-martialed and dismissed
from service while the action was pending. Chadwin, supra note 107, at 131.

n112. See infra notes 113-28 and accompanying text; see also Richard
Willing, As Police Rely More on DNA, States Take a Closer Look, USA Today,
June 6, 2000, at A1, 2000 WL 5780208.

n113. Prisoners have challenged state DNA database laws under the Fourth
Amendment claiming that DNA sampling constitutes an unreasonable search and
seizure. The courts in these cases have held that although the drawing of
blood is a search and seizure within the meaning of the Fourth Amendment, it
is not unreasonable. See, e.g., Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th
Cir. 1998); Boling v. Romer, 101 F.3d 1336, 1339-40 (10th Cir. 1996)
(holding that obtaining a DNA sample is reasonable "in light of an inmate's
diminished privacy rights; the minimal intrusion of saliva and blood tests;
and the legitimate government interest in the investigation and prosecution
of unsolved and future criminal acts" (citation omitted)). Additionally, the
drawing of blood from convicted criminals has been contrasted with
fingerprinting, which requires probable cause. See Rise v. State of Oregon,
59 F.3d 1556, 1559-60 (9th Cir. 1995) (holding that in the DNA context, a
state may "interfere with" Fourth Amendment rights with less than probable
cause and without a warrant).

n114. Prisoners challenging state DNA database laws under the First
Amendment claim that the drawing of blood violates their religious beliefs.
See, e.g., Shaffer, 148 F.3d at 1181 ("Mr. Shaffer also contends that
application of the [Oklahoma DNA database] statutes to him violated his
rights under the Free Exercise Clause of the First Amendment because it
forced him to submit to a practice that will require him to deny his faith
and condemn him to eternal damnation."); Ryncarz v. Eikenberry, 824 F. Supp.
1493, 1502 (E.D. Wash. 1993). The court in Ryncarz held that the DNA
database statute involved was a neutral law of general applicability. See
Ryncarz, 824 F. Supp. at 1502. The court upheld the statute under the rule
expressed in Employment Division, Department of Human Resources v. Smith,
494 U.S. 872 (1990), that the state's enforcement of neutral laws of general
applicability does not violate First Amendment rights. See id. at 1503.

n115. Several prisoners have challenged DNA database statutes on the ground
that submitting a DNA sample would violate their Fifth Amendment right
against self-incrimination; the courts in these cases have rejected this
claim because DNA samples are not testimonial in character. See, e.g.,
Shaffer, 148 F.3d at 1181; Boling, 101 F.3d at 1340 (10th Cir. 1996). The
court in Cooper v. Gammon, 943 S.W.2d 699 (Mo. Ct. App. 1997) explained its
reasoning in this manner:


While the Fifth Amendment protects a suspect from being compelled to provide
evidence of a testimonial or communicative nature, it does not protect a
suspect from being compelled to provide real or physical evidence. In
Schmerber, the Supreme Court held that a compelled extraction of a blood
sample and its chemical analysis, for blood alcohol content, does not amount
to testimonial or communicative evidence and therefore is not prohibited by
the Fifth Amendment. Likewise, the Fifth Amendment privilege against self
incrimination is not violated by the taking of blood under 650.055 [the
Missouri DNA database statute] for DNA profiling analysis.


Id. at 705 (citations omitted).

n116. Courts have routinely rejected claims that the taking of blood to
obtain DNA for a state database constitutes cruel and unusual punishment
under the Eighth Amendment. Prisoners have made several types of claims
under the Eighth Amendment. In Boling v. Romer, a prisoner claimed that the
Colorado database statute violated the Eighth Amendment by "exposing him to
possible physical abuse by indicating, in front of other inmates, that he
had to submit to DNA tests, thus disclosing to those other inmates that
plaintiff was a sex offender." 101 F.3d 1336, 1341 (10th Cir. 1996). In
response, the court merely stated that the "plaintiff's allegations are
insufficient to state a valid Eighth Amendment claim." Id. In Kruger v.
Erickson, the court held that contributing a blood sample pursuant to a DNA
database statute was not cruel and unusual punishment when a "trained
technician withdrew petitioner's blood in accordance with the medically
acceptable BCA [Bureau of Criminal Apprehension] procedures" and the
"petitioner's blood was taken for the legitimate interest of constructing a
DNA database of criminal sexual offenders." 875 F. Supp. 583, 588 (D. Minn.
1995). Further, in Sanders v. Coman, the court held that prison officials
could use reasonable force to collect a blood sample for inclusion in a DNA
database without violating the Eighth Amendment. 864 F. Supp. 496, 500-01
(E.D.N.C. 1994) ("There are no facts or allegations in the case at bar that
the force being used to obtain DNA samples from inmates is being applied
with the intention of harming the inmates ... . Therefore, the actual force
used does not constitute cruel and unusual punishment simply because it
caused pain to the inmates involved."). And in the case of Ryncarz v.
Eikenberry, the court held that the plaintiff's allegations that an
""unsheathed needle'" was used to draw the blood, that his arm was not
sanitized, that the procedure caused "the blood vessels to rupture and tear,
forcing blood to flow into the "surrounding muscle fiber'" of his arm, that
he was ""unnecessarily exposed to deadly virus, bacteria and contamination;
compromising [his] right to be free from [threat] of infection,'" and that
he was denied medical care until the next day, causing "internal scars,
hemorrhaging (sic) and ... [less than] full freedom of strength and movement
of his left arm" did not constitute an Eighth Amendment cruel and unusual
punishment claim. 824 F. Supp. 1493, 1501-02 (E.D. Wash. 1993) (alteration
in original).

n117. Prisoners have challenged state DNA database statutes on the ground
that the language is unconstitutionally vague and conclusory. See, e.g.,
Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1996) (stating summarily
that "dismissal of plaintiff's Ninth Amendment claim as too vague and
conclusory was appropriate"). Additionally, in State v. Olivas, 856 P.2d
1076 (Wash. 1993), the court held that:


"vagueness challenges to enactments which do not involve First Amendment
rights are to be evaluated in light of the particular facts of each case."
Such enactments are not properly evaluated for facial vagueness, but rather
as they were applied. Appellants' claims do not involve First Amendment
rights. They have not established that the DNA testing statute is
unconstitutionally vague beyond a reasonable doubt.


Id. at 1086-87 (quoting Spokane v. Douglass, 795 P.2d 693 (Wash. 1990)).

n118. Courts have generally rejected the notion that state DNA database
statutes violate the Equal Protection Clause. See, e.g., Roe v. Marcotte,
193 F.3d 72, 82 (2d Cir. 1999) ("Plaintiffs presented no evidence that there
was a compelling need to test other violent felons. In any event, the
statute's claimed "underinclusiveness' does not provide a basis for
invalidating it. We therefore conclude that the statute does not violate the
Equal Protection Clause." (citation omitted)); Boling, 101 F.3d at 1341
("There is no equal protection violation. A rational relationship exists
between the government's decision to classify inmates as convicted sex
offenders and the government's stated objective to investigate and prosecute
unsolved and future sex crimes."). However, one case has held that a
specific provision of a state DNA database statute violated the Equal
Protection Clause. State v. Trepanier, 555 N.W.2d 394 (Wis. Ct. App. 1996).
Trepanier held that the application of Wisconsin's DNA database to convicted
burglars violated the Equal Protection Clause because it required burglars,
and only burglars, to pay a fee of $ 250 as a "DNA surcharge" whether or not
they actually contributed DNA to the state database; other criminals were
required to pay the surcharge only if they contributed DNA. See id. at 396.
The court recognized that convicted burglars are not a suspect class, and so
the classification need only bear a rational relationship to a legitimate
government interest, but it rejected the state's claim that the statute was
rational because it was "purely a funding provision in that it merely
mandates who is required to pay," or because "burglars have high rates of
recidivism, creating a higher probability of solving crimes with DNA
analysis." Id. at 397. The court instead held that "because we conclude
there is no rational basis to require only burglars to pay the DNA surcharge
when not providing a DNA sample, that part of 973.046(1)(a), Stats. [the
Wisconsin database statute] requiring payment from convicted burglars is
unconstitutional." Id. at 398.

n119. Some convicted prisoners have claimed that being forced to submit DNA
in accordance with a statute passed after their conviction violates the
constitutional prohibition of ex post facto laws. See U.S. Const. Art. 1,
10, cl. 1. But courts have routinely rejected this claim on the ground that
DNA statutes are not penal in character. See, e.g., Shaffer v. Saffle, 148
F.3d 1180, 1182 (10th Cir. 1998) ("Other circuits have upheld similar
statutes against the same challenge, holding that because such statutes have
a legitimate, non-penal legislative purpose, they do not run afoul of the Ex
Post Facto Clause under these circumstances... . We agree."); Gilbert v.
Peters, 55 F.3d 237, 238-39 (7th Cir. 1995) ("Both federal and state courts
have uniformly concluded that statutes which authorize collection of blood
specimens to assist in law enforcement are not penal in nature... . The
blood specimen statute thus does not run afoul of the Ex Post Facto
Clause."); Jones v. Murray, 962 F.2d 302, 309 (4th Cir. 1992) ("Emerging
clearly from this discussion is the conclusion that a statute that is not
penal cannot be ex post facto. Thus it cannot be said that the DNA testing,
itself, runs afoul of the Ex Post Facto Clause.").

n120. In the case of Ewell v. Murray, Virginia prisoners asserted procedural
due process to challenge a prison regulation that provided for the loss of
"good-time credits" for not providing a DNA sample when it was required by
the state DNA database statute. See 11 F.3d 482 (4th Cir. 1993) at 487. The
court rejected the prisoners' contention that the regulation deprived them
"of a vested liberty interest in the terms and conditions of the good-time
credit policy they entered." Id. It held instead that even though
"confinement to prison does not strip a prisoner of all liberty interests
... the inmates do not have a protected liberty interest in the procedures
themselves, only in the subject matter to which they are directed." Id. at
487-88. Therefore, "the procedures may be changed at the will of prison
officials so long as they afford that process which is due under the Due
Process Clause of the Fourteenth Amendment." Id. at 488.

n121. Several courts have held that prisoners can be forced to give blood
pursuant to DNA database statutes without violating substantive due process.
See, e.g., Kruger v. Erickson, 875 F. Supp. 583, 587 (D. Minn. 1995)
(holding that the Minnesota DNA database statute did not violate due process
when "prison officials took blood from petitioner for DNA analysis pursuant
to [the statute]" and "the procedures employed by the MCF-STW health
services unit [were] performed according to medically acceptable protocols
developed by the Bureau of Criminal Apprehension"); Sanders v. Coman, 864 F.
Supp. 496, 498 (E.D.N.C. 1994) (rejecting plaintiffs' claimed "due process
rights to the protection of their liberty interests in bodily integrity");
Cooper v. Gammon, 943 S.W.2d 699, 706 (Mo. Ct. App. 1997) ("Despite an
individual's lack of an opportunity to object to the procedure, the
extraction of blood from an individual in a simple, medically acceptable
procedure does not implicate the due process clause.").

n122. Court decisions have been mixed regarding DNA databases and the
constitutional principle of separation of powers. In Dial v. Vaughn, 733
A.2d 1 (Pa. Commw. Ct. 1999), a prisoner argued that the Pennsylvania DNA
database statute violated the separation of powers doctrine because it
affected the length of his prison term by depriving him of eligibility for
parole. See id. at 3. The prisoner claimed that the statute could
effectively lengthen his prison term because it provided that:


A person who has been convicted or adjudicated delinquent for a felony sex
offense or other specified offense before the effective date of this section
and who is still serving a term of confinement in connection therewith on
the effective date of this section shall not be released in any manner prior
to the expiration of his maximum term of confinement unless and until a DNA
sample has been withdrawn.


See id. (quoting 306(b) of the DNA Detection of Sexual and Violent Offenders
Act, 35 Pa. Cons. Stat. Ann. 7651.306). The court found that since "the
requirement that Dial submit to pre-release withdrawal of a blood sample for
DNA testing does not alter his maximum sentence ... . nor does the Act alter
Dial's parole eligibility date," the database did not violate the separation
of powers doctrine. Id. at 4. However, in the case of Murneigh v. Gainer,
the court upheld an objection to the Illinois DNA database statute and its
implementation of regulations based on the separation of powers principle.
685 N.E.2d 1357 (1997). Specifically, the court held that the statute and
its implementing regulations, which required a judge to issue a contempt
order if a prisoner refused to submit a blood sample to the DNA database,
infringed on "[a] unique and integral part of the judicial role in resolving
specific controversies." Id. at 1365.

n123. See Landry v. Harshbarger, No. 98462, 1998 WL 1181741, at 1 (Mass.
Super. Ct. 1998). See also Michael Lasandra, Judge KOs Inmate DNA Tests,
Boston Herald, Aug. 14, 1998, at 6, 1998 WL 7352871.

n124. See Landry v. Attorney General, 709 N.E.2d 1085, 1094 (Mass. 1999)
(holding that "the minor intrusion of a blood test is outweighed by the
strong State interest in preserving a positive recorded identification of
convicted persons").

n125. In Schmerber v. State of California, 384 U.S. 757 (1966), the Supreme
Court ruled that "compelled intrusions into the body for blood" must be
deemed a Fourth Amendment search; therefore, DNA database statutes which
require prisoners to submit blood samples for DNA profiling must be
reasonable under Fourth Amendment analysis. Id. at 767-68. Courts have
applied conventional Fourth Amendment analysis to uphold DNA database
statutes in several cases. In Matter of Appeal in Maricopa County Juvenile
Action Numbers JV-512600 and JV-512797, 930 P.2d 496 (Ct. App. Div. 1 1996),
two juveniles who had admitted to child molestation challenged the
California DNA database statute that required them to submit a blood sample.
Id. at 498. The court found that while normally, under the Fourth Amendment,
"a search or seizure is not considered reasonable unless it is accompanied
by a judicial warrant issued only after a finding of probable cause," the
California database statute, which required submission of a sample without a
warrant, was reasonable because "the procedural safeguards required by [the
California database statute] are more stringent than those required for the
issuance of a warrant based upon a finding of probable cause." Id. at 500.
Similarly, the court in People v. Wealer, 636 N.E.2d 1129, 1135 (Ill. App.
Ct. 1994), upheld the Illinois database statute, which provided that certain
prisoners must submit blood and saliva samples without the issuance of a
warrant because the database statute "adequately addresses the concerns
underlying the warrant requirement." Id. at 1135.

n126. The "special needs" doctrine provides that """special needs" beyond
normal law enforcement ... may justify departures from the usual warrant and
probable-cause requirements [of the Fourth Amendment].'" Skinner v. Ry.
Executives Ass'n, 489 U.S. 602, 620 (1989) (quoting Griffin v. Wisconsin,
483 U.S. 868, 873-74 (1987), which held that the "special needs" of
Wisconsin's probation system justified the warrantless search of a
residence). This doctrine has been used to uphold state DNA database
statutes against Fourth Amendment claims. See, e.g., State v. Olivas, 856
P.2d 1076, 1086 (1993) (upholding the Washington DNA database over Fourth
Amendment concerns by finding that under the statute there were ""special
needs beyond normal law enforcement' for drawing blood from convicted
persons without probable cause or individualized suspicion." The court found
that the "special needs doctrine" is a "better reasoned approach." (quoting
Skinner, 489 U.S. at 602)); Dial v. Vaughn, 733 A.2d 1, 7 (Pa. Commw. Ct.
1999) (holding that the "slight intrusion occasioned by the withdrawal of
blood is outweighed by the special public interest in maintaining an
identification data bank"). The court in Roe v. Marcotte, 193 F.3d 72 (2d
Cir. 1999), summarized the application of the special needs doctrine to the
Connecticut DNA database statute in this manner:


We conclude that a reasoned interpretation of the "special needs" doctrine
supports the constitutionality of the DNA statute. In defense of the
statute, defendants cite studies indicating a high rate of recidivism among
sexual offenders. Moreover, DNA evidence is particularly useful in
investigating sexual offenses and identifying the perpetrators because of
the nature of the evidence left at the scenes of these crimes and the
demonstrated reliability of DNA testing. Defendants argue that the existence
of state and national DNA data banks will serve an important governmental
interest in solving both past and future crimes. More importantly, they
contend that the statute's requirement that imprisoned sexual offenders
provide a DNA sample will deter these individuals from committing future
offenses of a similar nature. Balanced against this significant interest is
the drawing of a blood sample for testing, an intrusion that the Supreme
Court has characterized as minimal.


Id. at 79.

n127. Several courts have held that state DNA database statutes requiring
that convicted prisoners submit blood samples without the issuance of a
warrant or in the absence of suspicion for a specific crime meet the
constitutional requirements of the Fourth Amendment because convicted
prisoners have reduced privacy interests. See, e.g., Shaffer v. Saffle, 148
F.3d 1180, 1181 (10th Cir. 1998) ("While obtaining DNA samples [for
inclusion in the Oklahoma DNA database] implicates Fourth Amendment
concerns, it is reasonable in light of an inmate's diminished privacy
rights, the minimal intrusion involved, and the legitimate government
interest in using DNA to investigate and prosecute crimes."); Rise v.
Oregon, 59 F.3d 1556, 1560 (9th Cir. 1995) ("Once a person is convicted of
one of the felonies included as predicate offenses under Chapter 669 [the
Oregon database statute], his identity has become a matter of state interest
and he has lost any legitimate expectation of privacy in the identifying
information derived from the blood sampling."); Jones v. Murray, 962 F.2d
302, 306-07 (4th Cir. 1992) (holding that "when a suspect is arrested upon
probable cause, his identification becomes a matter of legitimate state
interest and he can hardly claim privacy in it," and so "as with
fingerprinting ... the Fourth Amendment does not require an additional
finding of individualized suspicion before blood can be taken from
incarcerated felons for the purpose of identifying them"); Kruger v.
Erickson, 875 F. Supp. 583, 588 (D. Minn. 1995) (holding that the Minnesota
DNA database did not violate the Fourth Amendment because "prisoners' Fourth
Amendment rights are limited by institutional security needs and the
prisoner's reduced expectation of privacy"); Ryncarz v. Eikenberry, 824 F.
Supp. 1493, 1498 (E.D. Wash. 1993) ("When a suspect is arrested upon
probable cause, his identification becomes a matter of legitimate state
interest and he can hardly claim privacy in it... . [Therefore,] the Fourth
Amendment does not require an additional finding of individualized suspicion
before blood can be taken from incarcerated felons for the purpose of
identifying them"); Doles v. State, 994 P.2d 315, 319 (Wyo. 1999) (holding
that "collecting DNA samples either from blood, saliva, or hair through
routine, unobtrusive procedures" for inclusion in the Wyoming DNA database
did not violate the Fourth Amendment prohibition against unreasonable search
and seizure because the procedures were "minimally intrusive ... [,]
convicted felons have diminished privacy rights ... [and] the Act's purpose
in collecting DNA identification information is to advance the legitimate
state interest in criminal law enforcement").

n128. See Rise v. Oregon, 59 F.3d 1556, 1558-59 (9th Cir. 1995), cert.
denied, 517 U.S. 1160 (1996); Jones v. Murray, 962 F.2d 302, 305 (4th Cir.
1992), cert. denied, 506 U.S. 977 (1992).

n129. See Press Release, Governor George H. Ryan, Governor Ryan Declares
Moratorium on Executions, Will Appoint Commission to Review Capital
Punishment System (Jan. 30, 2000), at
http://www.state.il.us/gov/press/00/Jan/morat.htm.

n130. See Scott Glover & Matt Lait, Convictions of 9 More Voided in Scandal,
L.A. Times, Feb. 2, 2000, at B1.

n131. Id.

n132. See Schoofs, supra note 90, at 45-46.

n133. See id. at 46.

n134. See Bailey, supra note 2, at 51. Eight of the convicts freed were on
death row. See Hench, supra note 8. In most of the cases involving
exonerations DNA testing was not available at the original trial. See
Bailey, supra note 2, at 51. The Innocence Project has a backlog of 1000
cases waiting to be investigated, only 200 of which the Project is currently
examining. See id.

For more information on convicts exonerated by DNA evidence, including the
cases of Earl Washington, Clyde Charles, Roy Criner, and Joseph Roger
O'Dell, see Frontline: The Case of Innocence: Four Cases, at
http://www.pbs.org/wgbh/pages/frontline/shows/case/cases/index.html (last
visited Jan. 26, 2001).

n135. U.S. Department of Justice, Federal Bureau of Investigation, A Report
to the American People on the Work of the FBI, 1993-1998, at
http://www.fbi.gov/library/5-year/1993-98/report6.htm.

n136. See McEwen, supra note 20, at 236. Some fear that individuals may be
arrested just to obtain their DNA. See Laylan Copelin, Allow DNA Sampling at
Arrests, Officials Urge, Austin Am.-Statesman, June 9, 2000, at A1, 2000 WL
7336989.

n137. Arkansas, California, and Idaho, for example, have recently passed
legislation expanding the categories of people who can be tested. See H.R.
1963, 82d Leg., 82d Sess. (Ark. 1999); H.R. 2539, 1999 Leg., 1999-00 Sess.
(Cal. 1999); H.R. 660, 2000 Leg., 55th Sess. (Idaho 2000). Connecticut is
currently considering such a measure. See H.R. 5852, 2001 Leg., 2001 Sess.
(Conn. 2001).

n138. See Craig Jarvis, DNA in the Courtroom Tops Issues at Statistics
Conference, News & Observer (Raleigh, NC), Dec. 5, 1999, at B2, 1999 WL
29850964 ("In courtrooms across the country, DNA evidence has become as
commonplace as the telltale fingerprint in helping juries decide a person's
guilt or innocence.").

n139. Cf. McEwen, supra note 20, at 234-35 ("It is not uncommon for persons
initially convicted of such offenses as burglary, robbery, and assault to
later be arrested for such "crossover' crimes as sex crimes (the type of
crime most likely to be solved with a DNA data bank)."). See also Marcy
Rasmussen Podkopacz & Barry C. Feld, Judicial Waiver Policy and Practice:
Persistence, Seriousness and Race, 4 Law & Ineq. 73, 85 n.37 (1995)
(discussing the predictability of recidivism based on a variety of factors,
including the type of offense committed); Richard E. Redding, Juveniles
Transferred to Criminal Court: Legal Reform Proposals Based on Social
Science Research, 1997 Utah L. Rev. 709, 735 n.157 (citing research
conducted on the prediction of future criminal acts).

n140. See Nicholas Wade, DNA Database Raises Fears of Big Brother, Orange
County Reg., Oct. 12, 1998, at A8, 1998 WL 21273528.

n141. See Rise v. Oregon, 59 F.3d 1556, 1561 (9th Cir. 1995) ("Oregon's
statute, ... applying only to certain classes of felons, bears a rational
relationship to the public's interest in identifying and prosecuting
murderers and sexual offenders."); Washington v. Olivas, 856 P.2d 1076, 1087
(Wash. 1993) ("There is a rational relationship between the interest of the
government in law enforcement and the application of the statute to this
class of persons [sexual and violent offenders]."); McEwen, supra note 20,
at 235 (referring to Jones v. Murray, 962 F.2d 302 (4th Cir.) (upholding the
validity of a Virginia law requiring DNA samples from all convicted felons
on the basis of a legitimate state interest in investigating future
crimes)).

n142. See National Academy of Sciences, DNA Technology in Forensic Science
116 (1992). The technology surrounding DNA profiling is constantly evolving,
and the recent replacement of the outmoded RFLP testing technique in the
CODIS database with the newer, faster, and more accurate STR testing method
demonstrates the viability of the Academy's concern. See supra note 96 and
accompanying text.

n143. See British Government Adds DNA Samples to Database, Knight-Ridder
Tribune (London), Sept. 1, 2000, 2000 WL 26267449.

n144. Robert W. Schumacher, Expanding New York's Database: The Future of Law
Enforcement, 26 Fordham Urb. L.J. 1635, 1647-48 (1999) (describing the
relatively intrusive nature of the British DNA database system in comparison
with American models).

n145. Matthew Chapman, The Gift of Life, The Guardian, June 7, 2000, at 4,
2000 WL 22776782.

n146. See Schumacher, supra note 144, at 1647 (referring to the Dec. 15,
1998 broadcast of NBC's Today, in which New York Police Commissioner Howard
Safir discussed the success of the DNA database in Great Britain). However,
it should be noted that the growing size of the British database has led to
the first ever wrongful match of an innocent individual to a crime. Willing,
supra note 57. A man's DNA was incorrectly matched with a DNA sample taken
from the scene of a burglary in 1999. Id. The DNA profiles matched at 6
loci, or points of identification, along the DNA molecule. Id. It is
estimated that the likelihood of such a random match occurring is 1 in 37
million. Id. After the suspect provided an alibi, a retest examining 10
loci, where the chance of a random match is 1 in one billion, found that the
profiles did not match. Id. In the United States, the FBI currently tests
DNA at 13 points of identification, but state databases often test fewer
loci. Id.

n147. Copelin, supra note 136.

n148. See Kevin Vaughan, Bill to Boost DNA Database Galvanizes Backers,
Critics, Denver Rocky Mtn. News, Apr. 20, 1999, at 5A, 1999 WL 6646559.

n149. See Michelle Mittelstadt, State Among 7 to Share Federal Grant for DNA
Database, Dallas Morn. News, Aug. 16, 2000, at 27A, 2000 WL 24852153
(quoting Reno's statement that "increasing law enforcement's ability to use
DNA evidence in the fight against crime makes sense and, ultimately, gets
violent offenders off our streets").

n150. See Paul Payne, Mississippi Crime Lab's Backup Handcuffs Police,
Prosecutors, The Com. Appeal (Memphis, Tenn.), Dec. 25, 1999, at A1, 1999 WL
29375953. At times it can take up to 6 years for samples to be analyzed. Id.

n151. See Michael Higgins, Acid Test, 85 A.B.A. J. 64, 66 (1999).

n152. See Payne, supra note 150; Richard Willing, With DNA Databases on the
Fast Track, Legal Questions Loom, USA Today, Mar. 1, 1999, at 5A, 1999 WL
6835478.

n153. Pub. L. No. 106-561, 114 Stat. 2787 (2000).

n154. 2(a)(3), 114 Stat. at 2787 (to be codified at 42 U.S.C. 3753(a)(13)).

n155. 2806(b)(2)(B), 114 Stat. at 2791 (to be codified at 42 U.S.C.
3753(a)(24)(B)).

n156. Pub. L. No. 106-546, 114 Stat. 2726 (2000).

n157. Id.

n158. Id.

n159. Id. Congress is currently considering two other bills that would help
reduce the DNA backlog in state crime labs: the Violent Offender DNA
Identification Act of 1999, H.R. 2810, 106th Cong. (1999); and the Convicted
Offender DNA Index System Support Act, H.R. 3375, 106th Cong. (1999). See
Shruti Date, Lawmakers Back Bills to Bolster DNA System, Gov't Computer News
(Silver Spring, Md.), May 15, 2000, at 3, 2000 WL 12999824.

n160. See Hallissy & Goodyear, supra note 7. It should be noted that placing
this type of information in the hands of private companies might raise
additional security concerns.

n161. See Wade, supra note 27.

n162. Bureau of Justice Statistics data regarding the recidivism of
convicted criminals shows that rapists released from prison are 10.5 times
more likely than other released prisoners to subsequently be arrested for
rape and that released prisoners who have served time for other sexual
assaults are 7.5 times more likely to be arrested later for a like offense.
Bureau of Justice Statistics, U.S. Department of Justice, Recidivism of
Prisoners Released in 1983 2, 6 (1989)).

However, some critics dispute the wisdom of using recidivism statistics to
determine which individuals should be subjected to DNA testing. See Right to
Gene Privacy Protected by Massachusetts Decision, Biotech. Newswatch, Sept.
7, 1998, at 4, 1998 WL 8765747 ("If prisoners could be tested on the basis
of a 26 percent recidivism rate, he [Benjamin Keehn of the Committee for
Public Counsel Services in Boston] suggested, so could all African-American
males, who on average have a 28 percent chance of spending time behind bars
during their lifetime.").

n163. See Amy Argetsinger & Craig Whitlock, Md. Seeks the DNA of Violent
Criminals; Critics Cite Threat to Privacy Rights, Wash. Post, Mar. 24, 1999,
at B1, 1999 WL 2207090 ("Like most states, Maryland started its database
with sex offenders because they are the criminals most likely to leave DNA
samples, in the form of semen."). However, it should be noted that sex
offenders are not the only criminals who leave DNA samples at the scene of a
crime. A case in point is the arrest of Dean Pagano for burglary in New York
in September of 2000. After breaking a window to burglarize a delicatessen,
Pagano left a small sample of blood at the scene, which New York authorities
analyzed and later matched to a blood sample taken from another unsolved
burglary the month before. See Heather Sokoloff & Michael Luo, Suffolk Gets
Its First "Cold Hit' with DNA Test, Newsday (Melville, N.Y.), Sept. 12,
2000, at A29, 2000 WL 10033263.

n164. 193 F.3d 72 (2d Cir. 1999). See also Boling v. Romer, 101 F.3d 1336
(10th Cir. 1996); Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995); Jones v.
Murray, 962 F.2d 302 (4th Cir. 1992).

n165. See Willing, supra note 57 (noting that the testing of all felons
encompasses "white-collar criminals, credit card cheats and other
non-violent offenders"). However, proposals to test all felons recently
failed in California, Washington, Mississippi, and Rhode Island. Id.

n166. See, e.g., Argetsinger & Whitlock, supra note 163 (discussing a bill
under consideration in the Maryland legislature to expand the state's
database to include violent felons); Mahr, supra note 33 (describing the new
Illinois law that permits judges to order any convicted felon and some
people convicted of misdemeanors to give a blood sample); Scott Milfred,
State Will Expand DNA Sampling of Felons; At Start of 2000 Any Felon
Released or on Probation Will Have to Submit to a DNA Test, Wis. St. J.,
Dec. 28, 1999, at 1A, 1999 WL 22071566 ("Wisconsin is about to expand its
use of DNA testing so that all convicted felons ... have to give a sample of
their genetic code."); Vaughan, supra note 148 (noting the unanimous
approval in Colorado of HB 1253, which requires the collection of DNA
samples from those convicted of both violent felonies and some
misdemeanors).

n167. See Gugliotta, supra note 102 (""Eventually it [CODIS] will include
all states and all felons.'" (quoting CODIS program director Steve
Niezgoda)); Wade, supra note 140, at A8 (""The trend is that 10 years from
now all felonies will be covered.'... "We recommend that all violent
felonies, burglaries, juveniles and retroactivity for people on parole be
included.'" (quoting Dawn Herkenham, chief of the FBI's Forensic Science
Systems Unit)).

n168. Gugliotta, supra note 102.

n169. See Rise v. Oregon, 59 F.3d 1556, 1560 (9th Cir.) (holding that
individuals convicted of certain felonies "do not have the same expectations
of privacy in their identifying genetic information that "free persons'
have); Robin Cheryl Miller, Annotation, Validity, Construction, and
Operation of State DNA Database Statutes, 76 A.L.R. 5th 239, 277 (2000)
(observing that courts have reasoned that taking a DNA sample from prisoners
does not violate the Fourth Amendment because prisoners have "reduced
expectations of privacy"); see also supra notes 127-28 and accompanying
text.

n170. See Richard Willing, Many Rapists Were Thieves First; Results May Lead
to Taking of DNA for Lesser Crimes, USA Today, July 10, 2000, at 3A, 2000 WL
5783383.

n171. See Bailey, supra note 2, at 50 (citing two studies conducted in the
early 1990s based on interviews with prison inmates that showed the
prisoners "had committed an average of 12 crimes in addition to the ones for
which they were caught and convicted").

n172. See Mario F. Cattabiani, Dent Bill to Expand DNA Base, Allentown
Morning Call, Mar. 26, 1999, at B1, 1999 WL 5747543.

n173. Several states have recently considered or are currently considering
bills specifically targeting burglars or expanding the list of felonies for
which DNA is collected. See, e.g., S.B. 1504, 184th Leg., Reg. Sess. (Pa.
1999); H.B. 603, 102d Leg., Reg. Sess. (Fla. 2000); see also Cattabiani,
supra note 172; Spalding, supra note 34 (both discussing state efforts to
expand state DNA databases to include convicted burglars).

n174. See Spalding, supra note 34. A later Virginia study concluded that in
at least 40% of rape cases where an arrest was made, the individual had
committed property crimes such as burglary or petty theft first. See
Willing, supra note 170. Similarly, a 1998 study conducted on the British
database concluded that more than 75% of Britain's convicted rapists were
burglars first. See Amy Holmes, Save Women: Take All Felons' DNA, USA Today,
July 28, 2000, at 17A, 2000 WL 5785208.

n175. See Cattabiani, supra note 172.

n176. Rose Marie Arce, Surveillance and DNA Testing Are Among the Latest
Police Weapons, Newsday (Melville, N.Y.), May 30, 1999, 1999 WL 8174226.

n177. Id.

n178. See S.D. Codified Laws 23-5-14 (Michie Supp. 1997); See also
Maintaining Some Genetic Privacy (Editorial), St. Petersburg Times, June 24,
1996, at 6A, 1996 WL 7123457; Schoofs, supra note 90.

n179. See Dana Damico, N.C. Leaders Press for DNA Typing on Those Arrested
But Not Convicted in Some Crimes, Winston-Salem J., Aug. 28, 2000, at 1,
2000 WL 27226216. The Louisiana statute provides that beginning on September
1, 1999, all individuals "arrested for a felony sex offense or other
specified offense [ranging from murder to simple assault] shall have a DNA
sample drawn or taken at the same time he is fingerprinted pursuant to the
booking procedure." La. Rev. Stat. Ann. 15:609(A) (West 2000). North
Carolina is considering a similar bill that would allow for testing of all
individuals arrested for certain violent felonies, including murder, rape,
and assault involving the elderly, the young, or the disabled, and
Connecticut is considering legislation that would require testing of all
arrestees. See H.B. 5877, 2000 Gen. Ass., 2000 Reg. Sess. (Conn. 2000); S.B.
165, 1999 Gen. Ass., 2000 Reg. Sess. (N.C. 2000).

n180. La. Rev. Stat. Ann. 15:609(A) (West 1999 & Supp. 2000) ("A person who
is arrested for a felony sex offense or other specified offense on or after
September 1, 1999, shall have a DNA sample drawn or taken at the same time
he is fingerprinted pursuant to the booking procedure.").

n181. Miss. Code Ann. 45-33-37(2) (West 2000) ("Every individual convicted
of a sex offense or in the custody of the Mississippi Department of
Corrections for a sex offense ... shall have a blood sample drawn for
purposes of DNA identification analysis.").

n182. Ky. Rev. Stat. Ann. 17.170(1) (Michie 1996 & Supp. 1999) ("Any person
convicted on or after July 14, 1992, of a felony offense under KRS Chapter
510 [sexual offenses] or KRS 530.020 [incest], shall, or who is in the
custody of the Department of Corrections on July 14, 1992, under KRS Chapter
510 or KRS 530.020 may, have a sample of blood taken by the Department of
Corrections for DNA ... law enforcement identification purposes and
inclusion in law enforcement identification databases.").

n183. See Barfield, supra note 58. Conversely, the Idaho statute requires a
showing that early DNA collection is in the best interest of justice. Idaho
Code 19-5507 (1997 & Supp. 1999).

n184. National Defence Act, R.S.C., ch. N-5, 196.11 (2001) (Can.); see also
Mark Clayton, Canada Gets in Sync With US on DNA Tests, Christian Sci.
Monitor, June 26, 1995, at 6, 1995 WL 6394562 ("Responding to Canadians'
growing concerns about crime, Canada's House of Commons resoundingly passed
legislation making genetic DNA testing mandatory for suspects in violent
crime cases."). There is also a movement towards testing all arrestees in
Canada. In June of 2000, Toronto's solicitor-general called for mandatory
testing of all arrestees at the opening ceremonies of the annual Ontario
Association of Chiefs of Police conference. See DNA from Suspects Urged by
Tsubouchi, Toronto Star, June 26, 2000, at NE4, 2000 WL 23037191.

n185. See McEwen, supra note 20, at 236 ("Since 1995, British police have
been authorized to take "nonintimate samples' (such as hair or saliva) for
data banking without consent from anyone convicted of or charged with a
recordable offense."). Under the British database statute, the term
"recordable offence" includes felonies and any misdemeanor higher than a
Class C misdemeanor. See Criminal Evidence (Amendment) Act, 1997, c. 17, 5
(Eng.). In 1999, British authorities arrested two million individuals,
including 450,000 who had never been arrested before. See Copelin, supra
note 136.

n186. Wade, supra note 27.

n187. See Schoofs, supra note 90. It should be noted, however, that more and
more states are beginning to disregard this advice. Id.

n188. See IACP Resolution on DNA Collection and Increased Funding For DNA
Evidence Technology, 106th IACP Annual Congress (1999) (resolving "that the
International Association of Chiefs of Police (IACP) strongly encourages all
law enforcement professionals to support legislation that authorizes the
taking of DNA samples from individuals at the time of arrest"), available at
http://www.theiacp.org/leg policy/Resolutions/resolutions1999.htm#techpol.
See also Paul Nowell, Police Urge Mandatory DNA Samples, AP, Nov. 5, 1999,
1999 WL 28136114; Jayson Blair, Police Chiefs Support DNA Sampling, Times
Union (Albany, N.Y.), Aug. 16, 1999, at A6, 1999 WL 21368881.

There are similar state movements to allow mandatory DNA testing of
arrestees. Copelin, supra note 136 ("They [Austin Police Chief Stan Knee and
Travis County District Attorney Ronnie Earle] are pressing for state
legislation to allow DNA testing when people are arrested - instead of
waiting until they are convicted - to create the first database of its kind
in the United States.").

n189. See Nowell, supra note 188.

n190. See Blair, supra note 188.

n191. Tracy & Morgan, supra note 7, at 668 (discussing an Internet poll
conducted by USA Today on March 2, 1999, which found that of 9751 responses,
54.4% said DNA databases should be expanded to cover all arrestees, 41.6%
said they should not, and 3.9% were undecided). However, because this poll
was conducted online the sampling methodology is obviously an important
factor in determining how much weight the results should be given. Id. at
668 n.96.

n192. John Marzulli, Get DNA from All Arrested - Safir, N.Y. Daily News,
Dec. 2, 1998, 1998 WL 21935942; see also NYC Police Zero In on Taking DNA
Data, Boston Globe, Dec. 14, 1998, at A3, 1998 WL 22238963; Stevenson
Swanson, Some Fear Letting Genetic Genie out of Bottle; Supporters See
Widespread DNA Sampling as Key to Fighting Crime; Opponents Predict a Great
Loss of Privacy, Chic. Trib., Feb. 2, 1999, at 1, 1999 WL 2840977. As one
justification, Safir stated that out of the previous 100 arrests for rape
and sodomy in New York City (as of March 1, 1999), 14 had previous records
for sex offenses, but 75 had arrest records for other offenses. Willing,
supra note 152.

n193. See S.B. 315, 1999 Reg. Sess. (Conn. 1999) (providing for the
collection of DNA from arrestees and the return or destruction of samples if
there is no conviction).

n194. Wade, supra note 27.

n195. Press Release, American Civil Liberties Union, ACLU Urges Reno to
Oppose Mass DNA Testing, at http://www.aclu.org/features/f070699a.html (July
6, 1999).

n196. See David Jackson, Technology Puts Law Enforcement, Privacy at Odds,
Dallas Morn. News, Apr. 4, 1999, at 1J, 1999 WL 4112068 (quoting James X.
Dempsey, lawyer with the Center for Democracy & Technology).

n197. Michael Smith, Legal Issues Working Group Report: Constitutional
Analysis of Arrestee DNA Sampling, Remarks to the National Commission on the
Future of DNA Evidence, at
http://www.ojp.usdoj.gov/nij/dnamtgtrans6/trans-j.html (July 26, 1999); see
also Richard Willing, Study: DNA Tests for All Arrestees Probably Legal, USA
Today, July 26, 1999, at 3A, 1999 WL 6848731. Because the Supreme Court has
not yet ruled even on convict testing, much of the report was based on lower
court cases and 30-year-old Supreme Court search and seizure cases. See
Higgins, supra note 151, at 87. One issue concerning expanding DNA databases
to include all arrestees involves the fact that one of the main
justifications for allowing testing of convicts - that the convict has a
reduced expectation of privacy - is not as strong when considering
arrestees. However, Jones v. Murray, 962 F.2d 302 (4th Cir. 1992) one of the
seminal cases on allowing the extraction of bodily fluids for DNA databases,
reads in part:


Probable cause had already supplied the basis for bringing the person within
the criminal justice system. With the person's loss of liberty upon arrest
comes the loss of at least some, if not all, rights to personal privacy
otherwise protected by the Fourth Amendment. Thus, persons lawfully arrested
on probable cause and detained lose a right of privacy from routine searches
of the cavities of their bodies and their jail cells ... .


Id. at 306. The wording of this opinion gives weight to the argument that
the reduced expectation of privacy on arrest may allow lawful DNA testing.
Others are less sure that the courts would allow arrestee testing. Mark
Rothstein, director of the Health and Policy Institute at the University of
Houston Law Center, cites concerns that plaintiffs may show statistically
that arrests are skewed along racial or ethnic lines, thereby skewing the
DNA collection. See Higgins, supra note 151, at 87.

n198. Recommendation of the National Commission on the Future of DNA
Evidence to the Attorney General Regarding Arrestee DNA Sample Collection,
at http://www.ojp.usdoj.gov/nij/ dna/arrestrc.html (last modified Jan. 16,
2000). See also Willing, supra note 197. The cost has been estimated at
around $ 765 million annually, which would cover the costs of an additional
15.3 million tests a year (adjusted downward for offenders with multiple
arrests). See Tracy & Morgan, supra note 7, at 664-65.

n199. See Willing, supra note 152.

n200. See Bailey, supra note 2, at 50 ("At $ 50 a profile, STR profiling is
significantly cheaper than earlier technologies."); Robin Lloyd, Chip Could
Turn City Police into Instant DNA Detectives, Fla. Times-Union Mar. 7, 1999,
at H8, 1999 WL 9664866 ("Overall, the technology is much cheaper and 10 to
100 times faster than the DNA "fingerprinting' techniques that were used in
the O.J. Simpson trial." (citing statement of Dan Ehrlich of the Whitehead
Institute)).

n201. See Willing, supra note 197.

n202. See Schmerber v. California, 384 U.S. 757, 767 ("But if compulsory
administration of a blood test does not implicate the Fifth Amendment, it
plainly involves the broadly conceived reach of a search and seizure under
the Fourth Amendment.").

n203. DNA testing through the use of cheek swabs involves the minimally
invasive practice of taking a swab of saliva from the inside of the
subject's cheek. See Higgins, supra note 151, at 66. This approach is
currently used to collect samples for the British database. See Copelin,
supra note 136.

n204. See Higgins, supra note 151, at 66 (summarizing the draft report of
the Commission). But see Robert W. Schumacher II, Note, Expanding New York's
Database: The Future of Law Enforcement, 26 Fordham Urb. L.J. 1635, 1655,
1657-59 (1999) (stating that cheek swabs should be deemed a Fourth Amendment
search, but that the testing of arrestees is reasonable under the Fourth
Amendment in light of the limited privacy rights of arrestees, a strong
government interest, and the minimal bodily intrusion); Miller, supra note
169, at 253 (noting that drawing blood and taking saliva samples are clearly
Fourth Amendment searches, but suggesting that the status of cheek swabs is
less clear under the Fourth Amendment).

n205. See Richard Saltus, DNA in Fingerprints Used as Identifier, Boston
Globe, June 19, 1997, at A5, 1997 WL 6258091 ("Scientists have shown that
they can analyze the vanishingly small amount of DNA in a human fingerprint
and reveal the unique genetic pattern of the person who left it.").

n206. See Willing, supra note 197 (""As we move from (taking DNA from) blood
samples to lifting it right off fingerprints, the invasiveness issue is
going to be resolved,'" (quoting Jeffrey Thoma, a prosecutor who worked on
the Commission's report)).

n207. See, e.g., Smith v. United States, 324 F.2d 879, 882 (D.C. Cir. 1963)
("It is elementary that a person in lawful custody may be required to submit
to photographing and fingerprinting, as part of routine identification
processes."); see also In re Reardon, 445 F.2d 798 (1st Cir. 1971) (holding
that requiring a defendant to furnish palmprints does not violate the
defendant's rights under the Fifth Amendment); United States v. Krapf, 285
F.2d 647, 650 (3d Cir. 1960) ("At this date, there is certainly no doubt
that the establishment and implementation of such a [fingerprinting] system
is, to the extent that is reasonably administered, within the power of the
federal government."); United States v. Kelly, 55 F.2d 67, 70 (2d Cir. 1932)
(finding a "general right of the authorities charged with the enforcement of
the criminal law to employ finger printing as an appropriate means to
identify criminals and detect crime"). The Supreme Court has indicated that
once a suspect is in custody, fingerprinting entails no further search, and
authorities may fingerprint the individual without demonstrating any other
state interest. Hayes v. Florida, 470 U.S. 811, 817 (1985). Today law
enforcement officials routinely fingerprint everyone who passes through the
criminal justice system. See Harold J. Krent, Of Diaries and Data Banks: Use
Restrictions Under the Fourth Amendment, 74 Texas L. Rev. 49, 94 (1995).
Currently, the FBI's Criminal Justice Information Service Division (CJIS)
has over 200 million fingerprints on file, compared with the 250,000 DNA
profiles in CODIS. See Press Release, U.S. Department of Justice, supra note
45 (noting the coverage of CODIS); Unsolved Case Fingerprint Matching, 69
F.B.I. Law Enforcement Bull., Dec. 1, 2000, 2000 WL 12023432 (describing the
FBI's Integrated Automated Fingerprint Identification System, which includes
an electronic record of 41 million fingerprint cards, each containing 10
fingerprints).

n208. Rise v. State, 59 F.3d 1556, 1559 (1995). The court continued its
analogy:


That the gathering of DNA information requires the drawing of blood rather
than inking and rolling a person's fingertips does not elevate the intrusion
upon the plaintiffs' Fourth Amendment interests to a level beyond minimal.
The Supreme Court has noted repeatedly that the drawing of blood constitutes
only a minimally intrusive search.


Id. at 1560.

n209. A similar debate exists concerning DNA gathered from a crime scene
that is later shown to belong to a nonsuspect. State laws are mixed on this
topic. For example, Michigan law authorizes that such a sample be retained
"only as long as it is needed for a criminal investigation or criminal
prosecution." Mich. Stat. Ann. 28.176 (West Supp. 2000). New Jersey law,
however, states that "if one of the bases for inclusion in the DNA database
was other than conviction or adjudication, that entry shall not be subject
to expungement." N.J. Stat. Ann. 53:1-20.25(b) (West Supp. 2000).

n210. Hibbert, supra note 13, at 809 (emphasis added). See e.g., Ala. Code
36-18-26 (Supp. 2000); Alaska Stat. 44.41.035 (Michie 2000); Ark. Code Ann.
12-12-1113 (Michie 1999); Cal. Penal Code 299 (West 2001); Conn. Gen. Stat.
Ann. 54-102l (West Supp. 1999); Del. Code Ann. tit. 29, 4713 (Michie 1997);
Ga. Code Ann. 24-4-65 (2000); Idaho Code 19-5513 (Michie Supp. 2000); Ind.
Code Ann. 10-1-9-20 (Michie Supp. 2000); Me. Rev. Stat. Ann. tit. 25 1577
(West Supp. 2000); Md. Code Ann. art. 88B, 12A(o) ( Michie 2000); Mass. Gen.
Laws Ann. ch. 22E, 15 (West Supp. 2000); Mich. Comp. Laws Ann. 28.176 (West
Supp. 2000); Mont. Code Ann. 44-6-107 (West 1999); Neb. Rev. Stat. 29-4109
(Supp. 2000); N.H. Rev. Stat. Ann. 632-A:24 (Supp. 2000); N.J. Stat.
53:1-20.25 (West Supp. 2000); N.M. Stat. Ann. 29-16-10 (Michie 1997); N.Y.
Exec. Law 995-c(9) (West 1996); N.C. Gen. Stat. 15A-266.10 (Lexis 1999);
N.D. Cent. Code 31-13-07 (1996); Or. Rev. Stat. 181.085 (1999); Pa. Cons.
Stat. Ann. tit. 35 7651.311 (West Supp. 2000); R.I. Gen. Laws 12-1.5-13
(Lexis 2000); S.C. Code Ann. 23-3-660 (Law. Co-op. 2000); Tex. Gov't Code
Ann. 411.151 (Vernon 1998); Utah Code Ann. 53-10-406 (Lexis 2000); Vt. Stat.
Ann. tit. 20 1940 (Equity 2000)); Va. Code Ann. 19.2-310.7 (Michie 2000);
W.Va. Code Ann. 15-2B-11 (Michie 2000); Wis. Stat. Ann. 165.77(3) (West
1997); Wyo. Stat. Ann. 7-19-405 (Michie 1999).

For example, the Texas statute provides that the director shall "expunge a
DNA record of a person from the DNA database if the person: (1) notifies the
director in writing that the DNA record has been ordered to be expunged ...
and (2) provides the director with a certified copy of the court order that
expunges the DNA record." Tex. Gov't Code Ann. 411.151(a) (Vernon 1998). An
individual may "petition for the expunction of a DNA record ... if the
person is entitled to the expunction of records relating to the offense to
which the DNA record is related ... ." Id. 411.151(b).

A related issue involves so-called "elimination samples - DNA given by
potential suspects [in a specific crime] to establish their innocence."
Richard Willing, Multiple-Case Use of DNA Raises Alarms, USA Today, Sept.
28, 2000, at 3A, 2000 WL 5790938. Similarly, state practices relating to
these types of samples are mixed. Federal and local prosecutors handle at
least 15,000 elimination samples a year, and two state database laws, those
of Texas and Florida, allow police to compare the elimination sample to
unrelated cases even if the suspect is found innocent in the crime for which
the sample was originally collected. See Tex. Gov't Code Ann. 411.151
(Vernon 1998); Fla. Stat. Ann. 943.325 (West Supp. 2001). The practice is
followed in other states as well, including Indiana, New York, and Illinois,
where the profiles of 1,100 suspects in the slayings of seven Chicago
prostitutes are being held for use in future cases. Willing, supra; see also
Ind. Code Ann. 10-9-8 to 10-9-22 (Michie Supp. 2000); N.Y. Exec. Law
995-c(9) (West 1996); 730 Ill. Comp. Stat. Ann. 5/5-4-3 (West Supp. 2000).
Five states - Alaska, California, Michigan, Vermont, and Wisconsin - have
database laws that specifically condemn the practice, but other state laws
do not address the issue. See Alaska Stat. 44.41.035 (Michie 2000); Cal.
Penal Code 297 (West 2001); Mich. Comp. Laws Ann. 28.176 (West Supp. 2000);
Vt. Stat. Ann. tit. 20 1938 (2000); Wis. Stat. Ann. 165.77(3) (West 1997).

n211. See Hibbert, supra note 13, at 809. For example, Maine, Massachusetts,
Montana, and Wyoming require only that the DNA profile be expunged if a
person is found to have been wrongfully convicted; the DNA sample itself is
retained. See Me. Rev. Stat. Ann. tit. 25 1577 (West Supp. 2000); Mass. Gen.
Laws Ann. ch. 22E, 15 (West Supp. 2000); Mont. Code Ann. 44-6-107 (West
1999); Wyo. Stat. Ann. 7-19-405 (Michie 1999).

n212. See Ariz. Rev. Stat. Ann. 31-281 (West 2000); Colo. Rev. Stat. Ann.
17-2-201 (West Supp. 2000); Fla. Rev. Stat. Ann. 943.325 (West Supp. 2001);
Haw. Rev. Stat. Ann. 706-603 (Michie 1999); Kan. Stat. Ann. 21-2511 (Supp.
2000); Nev. Rev. Stat. 176.0913 (2000); Ohio Rev. Code Ann. 2901.07 (West
Supp. 1999); S.D. Codified Laws 23-5-14 (Michie Supp. 2000); Tenn. Code Ann.
38-6-113 (Michie 1997). For example, the Illinois law states that "all
information obtained ... shall be maintained in a single State data base,
which may be uploaded into a national database, and may not be subject to
expungement." See 730 Ill. Comp. Stat. Ann. 5/5-4-3 (West Supp. 2000).

n213. See Mark Johnson, Police Hope for a National DNA Database; Virginia
Included in Pilot Network, Richmond Times-Dispatch, Jan. 12, 1998, at A1,
1998 WL 2023552.

n214. See Blair, supra note 188.

n215. See id. ("[New York] seems to be moving from collecting DNA from
convicted killers to the collection of those samples from the innocent.").

n216. See, e.g., Privacy Risk Seen in DNA Databanks, supra note 24 ("The
idea that there will be a huge databank of genetic information on millions
of people is repulsive ... ." (quoting James Watson, winner of a Nobel prize
for his work in DNA, speaking before a congressional hearing in 1991));
Randi Rossman, Protection v. Privacy in DNA Data, Press Democrat (Santa
Rosa, Cal.), Feb. 25, 1999, at A1, 1999 WL 5046311 ("Critics warn ... DNA
samples could be taken not just from the country's worst sex offenders but
from those who commit lesser crimes - or, possibly one day, from every
citizen."); Wade, supra note 27 ("The DNA database started out with pariahs
- the sex offenders - but has already been enlarged to include other felons
and will probably be extended to include everyone, giving elites the power
to control "unruly' citizens." (quoting Philip Bereano, technology and
public policy professor for the University of Washington)).

n217. See McEwen, supra note 20, at 236 (recognizing the concern that DNA
profiles will, over time, become national identifiers).

n218. See Jennifer Sue Deck, Prelude to a Miss: A Cautionary Note Against
Expanding DNA Databanks in the Face of Scientific Uncertainty, 20 Vt. L.
Rev. 1057, 1058 (1996).

n219. See Wade, supra note 27. British police officials cited time and cost
efficiency in support of this measure. See UK Police Chief Calls for
National DNA Database, 393 Nature 106, 106 (1998).

n220. See Act on Health Sector Database No. 139/1998, Sec. IV, Dec. 17, 1998
(Ice.), available at
http://brunnur.stjr.is/interpro/htr/htr.nsf/pages/gagngr-log-ensk (last
visited Feb. 18, 2001); see also Tracking Iceland's Genes, Cincinnati Post,
Dec. 10, 1999, at 27A, 1999 WL 21786226. DeCode plans to collect the genetic
information from all of Iceland's 270,000 citizens and link the profiles
with their health records and family trees in an attempt to isolate genetic
links to certain diseases. See id. Iceland is viewed by scientists as an
ideal site for such research because the country was originally populated in
the ninth century by just a few hundred Norwegian Vikings and Celts, few new
immigrants have settled there since that time, and a series of disasters
such as a plague, smallpox, volcanic eruptions, and famine have further
reduced the "genetic muddle." See James Shreeve, Secrets of the Gene, Nat'l
Geographic, Oct. 1999, at 58. Additionally, Iceland's settlers have a
passion for genealogy, and written family records extend all the way back to
the country's original settlement, making it easier to link certain genetic
diseases to the individuals carrying the defective gene. Id. The information
obtained will be encrypted, but some fear that it may leak out and be
misused. See Tracking Iceland's Genes, supra (""If the information ever
leaks out, people will sell it.'" (quoting Dr. David Haile of the University
of Texas Health Sciences Center)). Additionally, some are concerned that
since DeCode plans to market its evidence to anyone who can afford it,
including pharmaceutical and insurance firms, that foreign health insurance
companies may use it to screen applicants in other countries. See Shreeve,
supra, at 64.

n221. See supra notes 125-27 and accompanying text.

n222. See Deck, supra note 218, at 1067-74 (asserting that U.S. Supreme
Court decisions in search and seizure cases since Schumberger v. California,
384 U.S. 757 (1966), have developed a framework that "weighs the public
interest in a certain procedure against the individual interest at stake and
typically rules in favor of the public interest").

n223. See Lawrence O. Gostin, Health Information Privacy, 80 Cornell L. Rev.
451, 468 (1995) (noting that three quarters of states store blood samples
drawn from newborns, with thirteen storing them more than five years and
several storing them indefinitely).

n224. See Nancy McVicar, A New Way to Tell What Child Is This, Sun-Sentinel
(Ft. Lauderdale, Fla.), Jan. 4, 1999, at 1B, 1999 WL 2463022.

n225. See Chad Terhune, Police Urge DNA Sampling of Newborns, Wall St. J.,
Dec. 16, 1998, at F1, 1998 WL 18995853.

n226. See Swanson, supra note 192.

n227. See Rossmann, supra note 216. For further discussion on the logistical
concerns of establishing a comprehensive DNA database covering all
Americans, see Tracy & Morgan, supra note 7, at 671-72.

n228. See supra note 200 and accompanying text.

n229. See Richard Willing, Privacy Issue Is the Catch for Police DNA
"Dragnets,' USA Today, Sept. 16, 1998, at 1A, 1998 WL 5736039 (providing a
specific example of a "genetic dragnet" in which police in a Maryland town
collected DNA from over 50 men who were not suspects but lived or worked
near the scene of a crime).

n230. This method was used in the successful apprehension of British
murderer Colin Pitchfork. See supra note 2 and accompanying text.

n231. See Higgins, supra note 151, at 87 ("FBI spokesman Bresson points out
that officials in England, where DNA testing by law enforcement originated,
have been successful with mass screening.").

n232. See Joseph Wambaugh, The Blooding 168-69 (1989) (recounting the
British police's collection of blood and saliva samples from every male
between the ages of 17 and 34 in several British villages for the purpose of
solving a rape-murder); cf. Fred Barbash, Crime-Solving by DNA Dragnet;
Britain Makes Arrests in Rape Cases After Thousands of "Voluntary'
Neighborhood Tests, Wash. Post, Feb. 2, 1996, at A21, 1996 WL 3061978 ("Mass
DNA screening, a popular new technique among police in search of suspects in
Britain, has produced arrests in three highly publicized crimes recently ...
.").

n233. Schoofs, supra note 90. One German dragnet in May of 1998 tested
16,400 samples before matching crime scene DNA to a local mechanic, the
largest mass genetic test to date. See Willing, supra note 229.

n234. See Elizabeth Gleick, The Killer Left a Trace to Solve a Fatal Rape, A
Judge Issues a Controversial Order for DNA Testing of the Men in a French
Town, Time Int'l, Sept. 1, 1997, at 31, 1997 WL 13375768. After 13-year-old
Caroline Dickenson was raped and strangled in a Pleine-Fougeres hotel while
on a school trip in 1996, a French judge ordered the DNA testing of all men
in the village of Pleine-Fougeres in August of 1997. Id. Eventually saliva
samples from 169 men between the ages of 15 and 35 were screened, and after
the tests did not identify a suspect, the prosecutor stated that he would
request a second group of men between the ages of 36 and 60 to give samples.
See World Briefs: DNA Dragnet Fails in French Rape, Austin Am.-Statesman,
Oct. 18, 1997, at A21, 1997 WL 2843229.

n235. See Michael Higgins, Acid Test, A.B.A. J., Oct. 1999, at 64.

n236. Higgins, supra note 151, at 87.

n237. See Schoofs, supra note 90 ("More than 5000 men "volunteered' [in the
Pitchfork case], but they had all been notified that refusing to give blood
would place them under suspicion."); Willing, supra note 229 ("[Police
Chief] Farrell acknowledges that those who decline to give DNA samples
attract the attention of law enforcement."). Chief Farrell headed the
investigation in the Cheverly, Maryland dragnet. Id.

n238. See Letter from Rachel King, Legislative Council, & Barry Steinhardt,
Associate Director ACLU, to Representative Patrick Kennedy (Sept. 22, 1999),
at http://www.aclu.org (arguing against the maintenance of any DNA database
by the United States government; opposing legislation, sponsored by
Representative Kennedy, expanding the existing U.S. DNA database CODIS; and
offering suggestions for the improvement of Kennedy's bill should the
legislation move forward despite the ACLU's objections).

n239. See Newswire, ACLU, NYC Police Want DNA Samples from All Arrestees
(Dec. 15, 1998), available at http://www.aclu.org (asserting that a plan by
New York City Police Commissioner Howard Safir, that would allow police
officers to forcibly collect DNA from all individuals arrested, is
unconstitutional as an unreasonable search and seizure prohibited by the
Fourth Amendment); Schoofs, supra note 90 ("The U.S. Constitution prohibits
"unreasonable searches and seizures,' which most legal experts believe would
preclude DNA dragnets.").

n240. See Rick Atkinson, DNA Samples Catch American Killer of Toddler in
Germany, Wash. Post, Jan. 1, 1995, at A27, 1995 WL 2071267. Two-year-old
Elora McKemy disappeared from the home of her father, a U.S. Army Sergeant
stationed in Germany, on September 14, 1993, and her body was discovered
soon after. Id. After isolating the genetic profile of the killer from a
minute sample of semen on the body, the Army's criminal investigative
service requested that every male who had been near the military housing
complex that night - more than 1900 people (mostly U.S. soldiers) -
voluntarily contribute their DNA to be compared against the profile. Id.
Within four months, weapons specialist Patrick Smith, from Rex, Georgia, was
identified as the culprit. Id. He pled guilty to the crime and was sentenced
to life in prison. Id.

n241. See Willing, supra note 229 ("Since 1990 police in San Diego, suburban
Miami, Ann Arbor, Mich., and ... [Cheverly, Maryland] have screened more
than 3400 men who were not suspected of crimes but who matched general
descriptions of a criminal or who lived near where a crime occurred."). In
all cases the samples were given voluntarily, though at least some of the
participants told reporters they felt coerced. Id. ("[In the Cheverly case]
two maintenance men, Mike Hall and Proctor, told union president Turner they
felt coerced by police interviewers who photographed them, placed them in
separate rooms and required written statements and fingerprints as well as
DNA."). And in the case of the DNA dragnet conducted in Lawrence,
Massachusetts to determine who had impregnated a comatose woman in a nursing
home, police threatened to subpoena compulsory DNA testing of the men who
had access to the woman and refused to volunteer. Anne E. Kornblut, Lawrence
DNA Quest Sparks Privacy Debate, Boston Globe, Oct. 28, 1998, at A1, 1998 WL
9160790. Race has also been an issue in the United States dragnets, and
several have focused on blacks or other minorities. See Willing, supra note
229 ("Some say the large-scale tests have targeted minorities. The Ann Arbor
and San Diego searches focused on blacks, and the Miami search was aimed at
men with dark complexions but of different races. Blacks and whites have
been interviewed in the [Cheverly,] Maryland case.").

n242. Willing, supra note 229. Additionally, the development of a
credit-card-sized "lab on a chip," which would bring DNA testing ability
directly to the crime scene, would greatly enhance the ability of police to
conduct such dragnets immediately after a crime is reported. See "Lab on a
Chip" Would Hasten Police Work, AP, May 4, 1999, WL WIRESA Database. The
U.S. Justice Department has recently announced a five-year, $ 25 million
program aimed at developing a hand-held unit that police could use to
analyze DNA samples at a crime scene within minutes. See id. The devices are
expected to be available within two years. See id.

n243. See Higgins, supra note 151, at 87.

n244. See, e.g., supra note 200 (citing several sources that discuss the
effect advancing technology has had on the cost and speed of DNA
fingerprinting); supra note 203 (explaining the procedure to obtain DNA by
swabbing the person's cheek); and supra note 205 and accompanying text
(noting the existence of technology that makes possible the extraction of
testable quantities of DNA from fingerprints).

Police in Great Britain are also working towards developing a suspect's
likeness from unidentified DNA samples left at a crime scene. See Adler &
McCormick, supra note 2, at 67 ("Someday scientists may be able to develop a
description of an unknown suspect from genetic material in a drop of blood,
which British DNA expert Kevin Sullivan calls "the Holy Grail' of
criminology."); Bailey, supra note 2, at 51 ("British investigators are
beginning to go beyond simple STR identifiers to look for DNA markers in
genes for eye color, hair color, and race that would help them construct
fuller physical profiles of suspects."). In a 1998 case in St. Petersburg,
Florida, police sergeant Michael Puetz was tailing Charles C. Peterson,
suspected of at least a dozen robberies and a double rape. See Spit Gives
DNA Match for Rape Suspect, Fla. Today, Oct. 24, 1998, at B8, 1998 WL
18648417. Peterson, who was driving a motorcycle, stopped at a red light and
spat on the ground. Id. Puetz sopped up the saliva with a paper towel, and a
few days later the crime lab matched the DNA to semen from the rape. Id.
Puetz defended his evidence-gathering technique by comparing it to the
situation in which an individual takes out the trash and waives the right to
privacy as to its contents. Id.

In another first in the area of DNA identification, in September of 1999 the
state of Wisconsin issued an arrest warrant for an unnamed suspect in a
series of rapes based solely on the culprit's DNA profile. Hallissy &
Goodyear, supra note 7. The prosecutors took this step because the rapes
occurred nearly six years previously, and the statute of limitations on the
first two rapes had already expired; the statute of limitations on the third
and final rape was set to expire on November 3, 1999. See id. When
confronted with concerns that an arrest warrant might require a more
traditional form of identification, Milwaukee County Assistant District
Attorney Norman Gahn responded that DNA fingerprinting is more exact than
identifying a person by name. See id. Gahn's criminal complaint charged
"John Doe, unknown male with matching deoxyribonucleic acid (DNA) profile at
Genetic Locations D1S7, D2S44, D5S110, D10S28 and D17S79" with sexual
assault and kidnapping. See DNA Evidence Poses New Challenges for
Prosecutors, Lawmakers, AP, Jan. 17, 2000, WL WIRESA Database. Gahn has
since charged five more John Does for sexual assault based on their DNA
profiles. Id. And there are believed to be as many as 20 such indictments
around the country. See Michael Luo, Unnamed Man Indicted by DNA, Newsday
(N.Y.), Aug. 9, 2000, at A3, 2000 WL 10027824. The first arrest from such an
indictment occurred in September of 2000, when Paul Robinson was arrested
for rape in California. See Richard Willing, Police Expand DNA Use; Charge
Man with Rape Using Only Genetic Profile, USA Today, Oct. 25, 2000, at 1A,
2000 WL 5793574. Robinson was charged with a rape that occurred in August of
1994; Sacramento prosecutor Anne Marie Schubert had obtained a warrant based
only on Robinson's DNA shortly before the six-year statute of limitations on
the rape expired. Id. Robinson's attorney has challenged the warrant. Id.

n245. See supra note 97 and accompanying text.

n246. See supra notes 203-07 and accompanying text.

n247. See supra note 127.

n248. See supra note 207 and accompanying text; see also Willing, supra note
152 ("So far, courts have upheld taking DNA from convicts for the same
reason fingerprinting is permitted. They both amount to warrantless
searches, courts have said, but are justified by the government's need to
solve crime.").

Others point out that while DNA fingerprints are similar to traditional
fingerprint identification, a person could wear gloves and not leave
fingerprints, but because of the variety of DNA samples one can leave
inadvertently at a crime scene, DNA identification is even more powerful.
See Hallissy & Goodyear, supra note 7.

n249. See Holmberg, supra note 6 ("[Rick] Conway [Deputy Commonwealth's
Attorney in Prince William County, Virginia] and others point out that the
database not only stops other crimes from occurring by finding and helping
convict perpetrators, but it also saves investigative time and resources by
eliminating suspects."). Additionally, databases speed the criminal justice
system because those guilty of crimes who are identified by DNA often
confess, saving the time and expense of conducting a lengthy trial. See id.
("The [criminals identified by DNA] know the chances of convincing a judge
or jury that it wasn't them are slim to none, and slim just left town.").

n250. See supra text accompanying notes 134-135.

n251. For example, the state of New York decided this year to reopen 12,000
rape cases, hoping to solve them through the state's DNA database. Cops
Reopen 12,000 Rape Cases: NYPD Hopes DNA Evidence is Able to Solve Most
Crimes, Newsday, Jan. 5, 2000 WL 9995765. Police in New York were previously
barred from using DNA testing in rape cases where there were no suspects and
threw the untested rape kits away after five years. Id. Other states use
similar procedures. California also does not do DNA testing in rape cases
without suspects, and the rape kits are discarded after six years. See
Heather Lourie, DNA Evidence in Gridlock, Orange County Register, Nov. 14,
1999, at A1, 1999 WL 30101837. Christopher Asplen, executive director of the
National Commission on the Future of DNA Evidence, states that a 1999 survey
estimated that there were over 180,000 untested rape kits across the
country. See id.

Currently there is a movement in several states, including New York,
California, and Minnesota, to lengthen or even remove the statute of
limitations on sexual assault and homicide cases. See S. 417, 2001 Leg.,
224th Ann. Sess. (N.Y. 2001) (eliminating the statute of limitations on the
prosecution of felonies such as homicide and sexual assault); Assemb. 1742,
1999-00 Leg., 1999-00 Reg. Sess. (Cal. March 30, 2000) (extending the
statute of limitations in sexual assault cases to the greater of one year
from the date DNA testing conclusively identifies the suspect or eight years
from the date of the offense); S. 2924, 1999-00 Leg., 81st Reg. Sess. (Minn.
Feb. 10, 2000) (eliminating the statute of limitations on the prosecution of
homicides other than murder and certain criminal sexual conduct crimes).

n252. The National Academy of Sciences recommends that primary control over
forensic DNA activities should be given to an independent agency such as the
Department of Health and Human Services. Comm. on DNA Tech. in Forensic
Sci., Nat'l Research Council, DNA Technology in Forensic Science 17 (1992).