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  Copyright (c) 2001 Boston College International & Comparative Law Review
          Boston College International and Comparative Law Review

                                Spring, 2001

                     24 B.C. Int'l & Comp. L. Rev. 341

LENGTH: 27131 words

NOTE: An International DNA Database: Balancing Hope, Privacy, and Scientific
Error

Allison Puri*

* Allison Puri is the Senior Managing Editor of the Boston College
International and Comparative Law Review. She dedicates this Note in loving
memory of her grandmother, Mary G. MacLeod (1914-2001), whose kindness and
intelligence will continue to inspire for years to come.

SUMMARY:
  ... Law enforcement officers and lawyers quickly realized that DNA could
become a useful complement to or even replacement for traditional
fingerprint evidence. ... With the obvious possibilities that such a
technology creates for criminal investigation and law enforcement, the
courts have been forced to address the admissibility of DNA data as legal
evidence. ... The given legislative purpose of the statute is to "assist
local, state and federal criminal justice and law enforcement agencies in:
(1) deterring and discovering crimes and recidivistic criminal activity; (2)
identifying individuals for, and excluding individuals from, criminal
investigation or prosecution; and (3) searching for missing persons." ...
Vague phrases such as "law enforcement purposes" conceivably can be
interpreted very broadly or very narrowly. ... Even with these limitations,
however, law enforcement officials were able to achieve a number of
successful hits from the database. ... In addition, British law enforcement
agencies utilize a technique popularly known as DNA "dragnetting." ...
Furthermore, some law enforcement personnel have expressed the desire to
have the entire citizenship tested and recorded. ... DNA database laws can
be drafted to allow law enforcement officials to share samples with other
countries in specific instances. ... Prosecutors and law enforcement could
maintain the statistical strength of the samples by comparing crime scene
data to countries individually, therefore reducing the sample pool. ...

Abstract: The discovery of DNA technology is considered one of the most
revolutionary and beneficial contributions to the modern industrialized
world. Not only has it led to formidable advances in medicine and genetic
biology, but, in the past ten years, DNA technology also has become an
important tool to law enforcement personnel and the legal community. Since
1986, police officers and lawyers have used DNA to find, apprehend, convict,
and exonerate criminals ranging from burglars to murderers. The creation of
the first DNA criminal investigative database in 1995 in Britain further
enabled law enforcement to better exploit the uses of DNA technology and
effect more acts of justice. As many more countries develop similar
databases and seek to create one international databank, however,
legislatures must ensure that the advancement of this tremendously powerful
tool will not overshadow the fundamental right of privacy.

TEXT:
 [*341]  INTRODUCTION

Approximately twenty-eight years ago a baby girl was welcomed into this
world with a future full of possibilities. n1 Twenty-two years later, on
July 11, 1994, this same girl lay nude and slain in her Petersburg
apartment. n2 Hope Denise Hall's life never could have been labeled  [*342]
easy or privileged. n3 At only eighteen months old, Hope gave her family its
first glimpse of the strength she possessed when she managed to fight off a
serious bout of pneumonia that threatened to take her life. n4 Hope's next
obstacle and opportunity to display her inner steel came years later at the
age of nine. n5 At an age when a girl's only worry should be what to wear to
her best friend's birthday party, Hope had to grapple with the possibility
of death yet again. n6 She was diagnosed with kidney cancer and given only
eleven months to live if she did not seek treatment. n7 The young Hope, true
to her name, survived surgery and chemotherapy with patience and prayers,
crying only once when the treatment claimed her thick, beautiful hair. n8

Hope persevered and went on to build a promising future as her cancer went
into remission. n9 She graduated from a Fairfax County high school in 1989
as a National Merit Scholar and went on to George Mason University with a
scholarship to study journalism. n10 It finally looked as though the girl
who had encountered such tragic hurdles so early in life was finally making
a name for herself. n11

Unfortunately, the good times didn't last long. n12 In her sophomore year,
Hope became pregnant. n13 Despite her dubious health, she decided to take a
year off from school and give birth to her son. n14 After giving birth, Hope
moved to Petersburg to be closer to her son's father and to go back to
school. n15 The steadfast single mother resumed her studies at Virginia
State University while working part-time as an associate producer at Channel
12 in Petersburg. n16 Hope once  [*343]  again proved that steely
determination and hard work pay off as she graduated magna cum laude with a
degree in mass communications. n17

It was her dedication, dependability, and perfectionism that led her
co-workers to become worried when Hope did not report to work on time on day
during in the summer of 1994. n18 After making a series of unsuccessful
phone calls to her apartment, a few reporters from the news station traveled
to Hope's apartment only to be confronted with horrific news. n19
Maintenance workers for the apartment complex had found Hope lying lifeless
in her apartment bedroom. n20 She had been raped, stabbed across her body a
total of fifteen times, and her throat had been slit three times with a
steak knife. n21 It became clear that finally Hope had been confronted with
an obstacle that all her strength could not get her through. n22

As her family struggled with the tragic death, the police were having their
own difficulties handling the murder. n23 Grieving neighbors were not able
to supply much information. n24 Some said that they thought they had heard
someone running down the stairs in the early morning hours but had thought
nothing of it in such a busy apartment complex. n25 A few others thought
they had seen a male acquaintance of Hope's leave her apartment the day she
was murdered. n26 After arresting him, however, the police released him
because his DNA did not match the samples found at the crime scene. n27 For
two years, family, friends, and the police became more and more discouraged
as  [*344]  they began to lose hope that they would ever discover who took
Hope's life on the lonely day in July. n28

Finally in August 1996, a scientific miracle occurred that was responsible
for finding Hope's murderer. n29 The Virginia DNA databank, developed by
Virginia lawmakers in 1989, got a "cold hit." n30 The databank, which was
the first of its kind in the United States, is made up of blood samples that
are collected from convicted felons and various unsolved crime scenes from
across the state. n31 The databank routinely compares the samples of the
felons with the crime scene information looking for potential matches. n32 A
"cold hit" occurs when the database makes a match between a felon and a
particular crime scene when the felon was never a suspect in the case. n33 A
"cold hit" means that, without the match, the suspect likely never would
have been found. n34

In Hope's case, a nineteen-year-old man, who was serving a one hundred year
prison sentence for abduction and multiple rapes, was matched to Hope's
murder via his DNA samples. n35 After an emotional trial and sentencing
hearing, Shermaine Ali Johnson was convicted of the murder of Hope Denise
Hall and was sentenced to death. n36

Since Hope's case, almost all states in the United States have developed
similar DNA databanks that have led to several other convictions for
previously unsolved crimes. n37 In addition, the FBI recently developed a
national DNA databank that links the information in all the participating
state databanks. n38 Hope Hall's parents have set up a memorial project with
a mission to create an international DNA databank. n39 Although such a
databank has not been implemented yet, it is not all that far off on the
horizon. n40 Several other countries have or  [*345]  are beginning to
develop similar databanks, and former Attorney General Janet Reno showed
great interest in the future of DNA as an investigative tool. n41 Although
an international databank undoubtedly would bring the potential for more
acts of justice similar to Hope's case, many are concerned with privacy,
constitutionality, and other issues that such a system raises. n42 This Note
analyzes the possibility for an international DNA databank.

First this Note provides a basic background on what DNA is and its
revolutionary growth over the past twenty years. Next, this Note compares
the uses of DNA databanks across the world by highlighting the growth in the
United States and the constitutional issues raised, the British experience
and the recent worries over incorrect matches, and the privacy issues
currently being raised in the Far East. Finally, this Note analyzes how well
the databanks from these countries could work together and the potential
problems that such a compilation could cause.

I. BACKGROUND

A. DNA and Sampling Procedures

DNA is the commonly known abbreviation for deoxyribonucleic acid, n43 the
genetic material found in the nucleus of all cells in living organisms. n44
It is often referred to as the "blueprint of life" because it contains the
information needed to give us our physical characteristics and functional
abilities. n45

Each strand of DNA contains a chain of chemical subunits for the coding and
expression of genes. n46 These subunits direct the cells to  [*346]
construct proteins that provide structure and chemical reactions within the
cells. n47 The proteins, therefore, determine the characteristics of the
cells and the cells determine the characteristics of the person. n48
Likewise, faulty DNA sequences have been known to cause genetic defects,
abnormalities, and diseases. n49

The double helix or twisted ladder shaped strand is made up of four organic
bases called adenine, cytosine, thymine, and guanine. n50 Pairs of these
bases make up the rungs of the ladder. n51 Adenine can only be matched up
with thymine, and cytosine can only be paired with guanine. n52 Each DNA
molecule consists of over three billion base pairs arranged in particular
sequences. n53

Forensic scientists are able to "read" the DNA sequences and find
differences among species. n54 They reduce the base names down to letters,
namely "a," "c," "t," and "g." n55 Then scientists read the sequence of
these letters by looking at one-half of the ladder. n56 Although the
majority, 99.9%, of the letter sequence on a human DNA strand is identical,
there are portions on each strand that differ from individual to individual.
n57 Thus, in a DNA strand with three billion letters, one tenth of one
percent difference translates into three million separate spelling
differences. n58 These are the differences that scientists examine in the
process known as DNA fingerprinting to determine identity and heritage. n59

 [*347]  Unfortunately, for purposes of forensic DNA fingerprinting,
scientists do not read all three billion letters. n60 Instead, to save time
and money, scientists look at a very small handful of sites of variation.
n61 Along the DNA strand, or genome, there are regions where the base pair
sequences repeat themselves. n62 For instance, one person could have the
sequence of "t-a-c-t-g" repeat three times and another person could have
that same sequence repeat twice or appear only once. n63 Thus, these
normally biologically insignificant sequence repetitions create spelling
differences in particular areas. n64 In general, forensic scientists cut the
DNA strands with an enzyme at these points of repetition. n65 They then
record the repetition variations by reducing the data into a bar code type
expression. n66 When comparing DNA samples from crime scene evidence to a
suspect's DNA sample, scientists will compare the "bar code" information
from each site of variation. n67 If the bar code differs between the
evidence and the suspect's DNA at any point, that particular suspect is
usually ruled out as a possible source of the DNA evidence. n68 However, if
the bar codes are the same along all points of variation tested, the suspect
is considered more likely to have left the evidence. n69 It is important to
note, however, that this does not mean the suspect committed the crime or
even left the DNA evidence. n70 Because scientists do not read the entire
DNA, looking for any and all variations, two samples conceivably could
appear as  [*348]  exact matches but actually differ in some other portion
of the strand. n71

Thus, two main concerns always must remain at the forefront of the
scientific and legal community's conscience when conducting such sample
comparisons. n72 First, laboratories must remain unadulterated and
impeccable because careless mistakes and sloppiness easily can create
paramount errors. n73 Second, scientists need to make clear to the legal
community exactly what these tests do and do not prove. n74 For example,
before using samples to determine the likelihood of guilt, the proper weight
must be applied to apparent matches. n75 Some sequences are more rare than
others and, therefore, some matches are more common than others. n76 Usually
the frequency of different DNA sequences varies across the population. n77
Thus, some results of DNA comparisons or DNA fingerprinting can be
inconclusive while others can be conclusive with no evidentiary value and
still others can be conclusive and relevant to innocence or guilt. n78

 [*349]  Technology has developed three main types of DNA testing that are
widely used for both science and legal identification purposes. n79 Each
testing protocol differs slightly and each has its own pros and cons. n80
Therefore, circumstances, such as the age, size, and handling of the sample,
determine what type of testing is used. n81

1. Restriction Fragment Length Polymorphism Testing

The first type of testing that has been widely used by forensic scientists
for legal identification purposes is known as Restriction Fragment Length
Polymorphism Testing (RFLP). n82 This procedure was developed by Professor
Sir Alec Jeffreys and was first reported in 1985. n83 RFLP testing is
generally accepted by the courts in the United States and has resulted in a
number of post-conviction exonerations. n84

The RFLP testing process generally follows the guidelines discussed above
but it does not actually "read" the sequence repetitions. n85 Instead, it
isolates certain areas of repetition and essentially measures the length of
these sections. n86 The lengths are then recorded as bar codes and compared
between samples as discussed above. n87

RFLP testing is best used on large, unadulterated or untarnished samples.
n88 Many samples collected from crime scenes, therefore, are too small for
such testing. n89 In addition, samples that are too old can  [*350]  start
to decompose and become less pristine. n90 Thus, older or smaller samples
are better suited to other types of testing. n91 When RFLP testing is
plausible, however, it is very discriminate. n92 Thus, samples appropriately
subjected to RFLP testing can result in statistically strong exclusions and
inclusions even when only testing a few DNA regions. n93

2. Polymerase Chain Reaction Testing--Nuclear DNA

Because of the sample limitations of RFLP testing, another type of testing,
known as Polymerase Chain Reaction Testing (PCR), has become the most widely
used technique in the field of molecular biology. n94 PCR was first
developed by Dr. Kary Mullis at Cetus Corporation in 1984. n95 It was first
used in the area of criminal identification in 1986. n96 Like RFLP testing,
PCR is also accepted by the courts and has resulted in a number of
post-conviction exonerations. n97

Unlike RFLP testing, however, PCR testing can be done on smaller and less
pristine samples. n98 Small samples can be subjected to PCR testing because
sample amplification is part of the process. n99 Essentially specific
regions of DNA are copied using an enzyme called Taq polymerase and then are
compared in a type of bar code format. n100 Like RFLP testing, an exclusion
is generally considered dispositive, however an inclusion is less
discriminate. n101 Therefore, in  [*351]  order to have a more statistically
strong inclusion, PCR testing needs to be conducted at a number of sites
along the DNA strand. n102

3. Polymerase Chain Reaction Testing--Mitochondrial DNA

Finally, a third type of testing has emerged that can be used on extremely
old or damaged samples. n103 Traditional RFLP and PCR testing is done on DNA
found in the nucleus of the cell. n104 However, PCR testing can also be done
on DNA found in the mitochondria of a cell (MtDNA). n105 Because the DNA
does not come from the nucleus, this testing can be done on samples from
dried bones, teeth, hair shafts, or any other sample that contains very
little or highly degraded nuclear DNA. n106

PCR testing on MtDNA is not as widely used as traditional nuclear DNA
testing and only a limited number of laboratories are able to conduct such
tests. n107 MtDNA testing has, however, been used in a number of court cases
in the United States. n108 Usually MtDNA testing is used to link a sample to
a particular family since mitochondria is passed from a mother to her
offspring. n109

B. DNA Revolution

Given the tremendous power and versatility of DNA technology, DNA has become
not only an important discovery to the scientific and genetic biology world,
but it also has provided great advances in the legal community. n110 Law
enforcement officers and lawyers quickly realized that DNA could become a
useful complement to or even replacement for traditional fingerprint
evidence. n111 It even has been suggested that over the past ten years DNA
technology has been one  [*352]  of the most revolutionary changes in law
enforcement. n112 The first known use of DNA testing in the area of criminal
identification was in 1986. n113 In this landmark case, Colin Pitchfork's
DNA was matched using RFLP testing to the DNA of semen collected from two
rapehomicides in Narbourough, England. n114

Moreover, public law enforcement agencies and criminal lawyers are not the
only ones who have become involved in the investigative use of DNA
technology. n115 Within five years of the notion of DNA spelling differences
being used for medical purposes, private companies entered the business and
began to provide DNA typing services to law enforcement officials. n116
Shortly thereafter, in 1989, the FBI had its own DNA typing lab in the
Hoover Building in Washington. n117 In 1995, Britain developed the first
known DNA criminal investigative database that allowed for a completely new
type of criminal investigation. n118 Instead of simply using DNA sample
evidence on a case-by-case basis, DNA databanks allow investigators to use
the information on a grand scale and use the samples for multiple ongoing
investigations. n119 Now countries all over the world, including the United
States, have begun to model similar databases after the British example.
n120

With the obvious possibilities that such a technology creates for criminal
investigation and law enforcement, the courts have been forced to address
the admissibility of DNA data as legal evidence. n121 The courts generally
have applied two different tests to determine whether scientific evidence,
such as DNA, should be admitted in a given case. n122 The original test for
the admissibility of DNA and other  [*353]  scientific evidence was
developed in Frye v. United States n123 and is commonly known as the Frye
standard. n124 The Frye standard asks a court to determine whether the
scientific evidence in question has "gained general acceptance in the
particular field in which it belongs." n125

After the development of the Frye standard, most federal and state courts
attempted to apply it to scientific evidentiary questions. n126 When
applying the Frye standard, however, courts did not inquire into the
reliability of the particular piece of evidence in question. Instead, they
had to determine the general reliability of the scientific test as a whole.
n127 Because this type of analysis is so vague, many became concerned with
the reliability of such a standard. n128 One major concern that was
particularly relevant to the area of DNA testing was that the Frye standard
tended to unfairly discredit relatively new tests and principles. n129 Given
the fast rate of change that often occurs in scientific communities, such as
the constant changes among types of available DNA testing, the Frye standard
could create an unfortunate roadblock to admissibility. n130 For instance,
the development of PCR DNA testing easily could have been considered not
"generally accepted in the scientific community" when many were still using
RFLP testing. n131 Moreover, as discussed earlier, there are still
relatively few labs that are able to conduct MtDNA PCR testing and,
therefore, under the Frye standard such testing may not be admissible
because it is too new. n132

Thus, many thought that the birth of a new test for scientific evidentiary
admissibility was greatly needed. n133 In 1993, the Supreme Court developed
such a test in the landmark case, Daubert v. Merrell Dow Pharmaceuticals.
n134 The Supreme Court concluded that the Frye  [*354]  standard had been
superseded by the enactment of the FED. R. FVID. 702. n135 FED. R. EVID. 702
simply states:

     If scientific, technical, or other specialized knowledge will
     assist the trier of fact to understand the evidence or to
     determine a fact in issue, a witness qualified as an expert by
     knowledge, skill, experience, training, or education, may testify
     thereto in the form of an opinion or otherwise. n136

Therefore, the court in Daubert concluded that in order for scientific
evidence to be admissible it must (1) be shown to be scientifically valid
and (2) must be relevant to at least one issue in the case. n137 In order to
make these determinations the courts can look at (1) whether the principle
or technique has been or can be reliably tested, (2) whether it has been
subjected to peer review or publication, (3) its known or potential rate of
error, (4) whether there are standards or organizations controlling the
procedures of the technique, (5) whether it is generally accepted by the
community, and (6) whether the technique was created or conducted
independently of the litigation. n138 Therefore, the Daubert test still
allows for the consideration of the Frye standard, however, the "generally
accepted" prong has become only one factor rather than the only factor in
the analysis. n139 This change has somewhat increased the admissibility of
DNA procedures because now newer tests still will be given consideration.
n140 The Daubert case, however, was decided on statutory rather than
constitutional grounds. Consequently, each state court remains free to
fashion its own standard for admitting scientific evidence, including
continued use of the Frye standard. n141 According to a Department of
Justice report, as of 1995, twenty-two states remained essentially committed
to the Frye standard. n142 Whether under the Frye or Daubert standard, as of
1998, forty-six states admit DNA evidence in criminal proceedings. n143
 [*355]  In forty-three states the courts have ruled on the admissibility of
the technology while the remaining three states require compliance with
statutes for admission. n144

Recently it has become clear that DNA is not only useful to police officers
and lawyers in strengthening cases against suspects. n145 In fact, DNA has
become extremely helpful to suspects and their defense attorneys in proving
innocence. n146 The FBI has stated that nearly one-third of people are
exonerated as suspects immediately upon DNA testing. n147 They further state
that before DNA testing, they never could have excluded the same people
using other test results such as standard blood markers. n148 In addition,
DNA testing has provided a unique, non-investigative opportunity for
convicts that no other type of evidence has been able to provide to the same
extent. n149 Many convicts are now filing for post-conviction relief based
on previously unavailable DNA testing. n150 In 1996, the National Institute
of Justice under the guidance of former Attorney General Janet Reno issued a
report on this subject entitled Convicted by Juries, Exonerated by Science:
Case Studies in the Use of DNA Evidence to Establish Innocence After Trial.
n151 The report opened with an introduction written by Reno stressing the
importance of the use of DNA evidence to exonerate the innocent. n152 The
report then provided twenty-eight case studies where the use of previously
unavailable DNA technology proved the innocence of convicted felons. n153
The twenty-eight men in the study had served an average of seven years in
prison before exoneration. n154 One case involved a man, Kirk Bloodsworth,
who had been convicted twice of  [*356]  beating, sexually assaulting, and
strangling a nine-year-old girl. n155 Witnesses, who said they saw
Bloodsworth with the girl earlier in the day, identified him as the likely
murderer. n156 In addition, Bloodsworth's statement about a bloody rock n157
and a comment about doing something "terrible" on the day of the murder n158
were entered as evidence against him. n159 After his second conviction, his
lawyer requested DNA testing that was previously unavailable. n160 After
three separate tests were done, n161 it was concluded that Bloodsworth was
not the murderer. n162 After serving approximately nine years on his second
sentence, two of which were on death row, the prosecutor joined the defense
in petitioning for a pardon that was granted by a Baltimore County Circuit
judge on June 28, 1993. n163 Finally, in December 1993, Maryland's governor
officially pardoned Bloodsworth. n164

Three years after the initial report, the National Commission on the Future
Use of DNA Evidence issued another report entitled Postconviction DNA
Testing: Recommendations for Handling Requests. n165 The report is aimed at
highlighting the legal and scientific issues involved in post-conviction
testing. n166 It further provides recommendations for prosecutors, defense
counsel, the judiciary, victim assistance groups, and laboratory and law
enforcement personnel. n167 The report states  [*357]  that since the 1996
report, more than forty additional convicts have benefited from
post-conviction testing. n168 Similar post-conviction relief cases also have
occurred in other countries all over the world. n169 Courts in Canada, Hong
Kong, and New Zealand all have reversed convictions based on subsequent DNA
testing results. n170 Moreover, many of the countries that have allowed such
post-conviction testing, especially Canada and the United States, have
expressed concern over the problems that these cases have unveiled. n171
With DNA testing highlighting more and more mistaken convictions, many are
questioning the traditional forms of law enforcement identification such as
eyewitness testimony. n172 Therefore, these post-conviction cases highlight
yet another important reason for the use of DNA, and more specifically DNA
databases, as an investigative tool. n173

II. DISCUSSION

A. DNA Databanking and the Constitution of the United States

In 1989, Virginia became the first state to implement a criminal DNA
database. n174 Originally, the database called for the inclusion of samples
from certain classes of violent crime and sex offenders. n175 Shortly
afterward, however, the legislature expanded the database to include all
newly convicted felons and was applied retroactively to current felons who
were required to submit samples upon release. n176 After passing
constitutional muster in 1992, according to the Fourth Circuit of the United
States Court of Appeals in Jones v. Murray, n177 the legislature further
expanded the database in 1996. n178 The new database  [*358]  demanded the
inclusion of certain juvenile offenders over the age of fourteen. n179

The other forty-nine states quickly followed suit. n180 Less than a decade
after Virginia's first implementation, all fifty states had enacted some
form of a criminal DNA database. n181 Every state currently collects samples
from certain convicted sex offenders, however, beyond that point the states
differ greatly. n182 Some states require collection of samples from all
felons both violent and non-violent. n183 Furthermore, other states require
collection from some classes of misdemeanors. n184 In addition, a few states
have or still require collection of blood from arrested suspects before
conviction. n185 In addition, certain states have a type of "two strikes and
you're out" type of legislation in which a person who was previously
convicted of certain crimes will have to submit to testing upon the
conviction of any other later crime. n186 Moreover, an increasing number of
states have seemingly gone against the general ideal of juvenile reform and
required inclusion of juvenile offenders as well. n187

Not only do states differ in the types of offenders included in the
databases, but they also differ in the allowed uses of the databases
themselves. n188 Most states allow the databases to be used for criminal
investigations of any kind. n189 Some states, however, restrict the types of
criminal investigations allowed. n190 In addition, other states allow for
the use of the data upon court order; therefore, these samples could be used
in civil cases such as paternity suits. n191

In addition to the individual state DNA databases, the FBI has created a
national DNA database. n192 In 1994, the DNA Identification  [*359]  Act
authorized the FBI to establish the Combined DNA Index System (CODIS). n193
Essentially, CODIS consists of three tiers of DNA data. n194 The first level
is called the Local DNA Index System (LDIS) and consists of information
installed by the laboratories of local police and sheriff departments. n195
The next level is the State DNA Index System (SDIS) and allows the
individual local laboratories to exchange information throughout the state.
n196 Finally, the third level is the National DNA Index System (NDIS) that
allows states to share information between each other on a national scale.
n197

With the development of CODIS and the expansion of state DNA databases, many
critics, especially civil libertarians, have become concerned with privacy
and abuse issues associated with such databases. n198 The primary
legislative purpose given to support DNA databases is related to recidivism
rates. n199 Database supporters state that statistics show that many
offenders of particular types of crimes, e.g. sex offenses, have a high
incidence of repeat offenses. n200 Therefore, supporters state that a DNA
database will help law enforcement identify suspects of new crimes who were
previously convicted of earlier crimes. n201 In addition, proponents hope
that DNA databases will provide a deterrent effect to counteract
recidivistic tendencies. n202 They reason that a released convict will be
less likely to commit additional crimes if he knows that his DNA is on file
with the government. n203 Critics claim, however, that this is a violation
of our society's commitment to reform, especially with respect to juvenile
offenders, and the presumption of innocence. n204 Furthermore, opponents
fear that with  [*360]  a centralized system, DNA data easily could get into
the wrong hands. n205 In addition, legislatures and law enforcement agencies
are working to set laboratory standards and confronting tremendous backlogs
of data created by database expansion. n206

1. Possible Constitutional Violations

Currently, the major concern that most database critics have is that DNA
database sampling statutes allow for the mass screening of individuals
without individualized suspicion or probable cause. n207 The general
justification given to support such sampling is the notion that a certain
class of people, i.e. certain convicted felons, are more likely to pose a
danger to society than others. n208 Thus, critics claim that such a
justification undermines both the Fourth Amendment's protection against
unreasonable searches and seizures and the Fourteenth Amendment's Equal
Protection Clause. n209 Thus, a few courts have been forced to address these
issues and to determine whether DNA databases pass constitutional muster.
n210

One of the most recent and controversial cases that addressed this precise
issue is Landry v. Attorney General. n211 In Landry, plaintiffs challenged
the validity of a Massachusetts DNA database statute, n212 which requires
involuntary collection of blood samples from all persons convicted of
thirty-three different types of offenses. n213 The given legislative purpose
of the statute is to "assist local, state and federal criminal justice and
law enforcement agencies in: (1) deterring and discovering crimes and
recidivistic criminal activity; (2) identifying individuals for, and
excluding individuals from, criminal investigation  [*361]  or prosecution;
and (3) searching for missing persons." n214 The statute states and
regulates the use of the database for primarily criminal investigative
purposes. n215 The statute, however, also allows for the use of the database
for other court proceedings and "advancing other humanitarian purposes."
n216 The plaintiffs argued that the statute allowed for an unconstitutional
search and seizure under both the federal and state constitutions. n217 The
Massachusetts Superior Court agreed and issued a preliminary injunction
against the statute. n218 The Massachusetts Supreme Judicial Court, however,
disagreed with the lower court's reasoning and reversed the decision. n219

The Supreme Judicial Court agreed that the taking of a DNA sample
constitutes a search and seizure, but decided that it is not unreasonable.
n220 The court explained that a prisoner's reasonable expectation of privacy
in his identity is diminished, n221 and that there is a strong governmental
interest in a "particularly reliable form of identification." n222 Finally,
the court weighed the strong state interest and the reduced expectation of
privacy with the level of intrusiveness of the test. n223 Citing other cases
that dealt with blood tests in different contexts, the court stated that a
blood test is only minimally intrusive. n224 Thus, the court concluded that
the search and seizure passes both federal and state constitutional
requirements. n225

In September of 1999, the Second Circuit of the United States Court of
Appeals reached a similar decision in Roe v. Marcotte. n226 The plaintiffs
argued that a Connecticut statute, n227 which requires all convicted sexual
offenders to submit a blood sample for a DNA database, violates the Fourth
Amendment's prohibition against unreasonable searches and seizures and the
Fourteenth Amendment's guarantee of  [*362]  equal protection. n228 The
court in Roe stated that the blood test is a Fourth Amendment search. n229
Furthermore, the court indicated that:

     except in well-defined circumstances, a search is not reasonable
     unless it is carried out pursuant to a judicial warrant issued on
     probable cause. In general, searches performed in the absence of a
     warrant and pursuant to an exception must nevertheless be
     predicated upon "probable cause to believe that the person to be
     searched has violated the law," or, at the very least, "some
     quantum of individualized suspicion." n230

The court, however, did not end its inquiry there. n231 Instead, the court
referred to the "special need" exception as articulated by the Supreme Court
in Skinner v. Railway Labor Execs. Ass'n, 489 U.S. 602 (1989). n232 In
Skinner, the Supreme Court stated that in some circumstances a showing of
individualized suspicion or probable cause would not be a constitutional
floor. n233 The Supreme Court indicated that a search may be reasonable
despite the absence of individual suspicion in situations where the privacy
interests are minimal and an important governmental interest would be placed
in jeopardy by a requirement of such suspicion. n234 Most of the cases since
Skinner, however, have considered non-law enforcement situations ensuring
institutional security or public safety. n235 DNA database testing,
therefore, does not fall into one of these traditional "special need"
contexts. n236

The Second Circuit nonetheless found that an application of the special need
exception to DNA sampling would not be an unreasonable extension. n237
Instead, they analogized to the "special needs" recognized in Griffen v.
Wisconsin, 483 U.S. 868 (1987). n238 In that case, the  [*363]  Supreme
Court held that a warrantless search of a probationer's home was reasonable
under the "special needs" exception. n239 The court relied on research that
showed that intensive supervision of probationers reduced recidivism. n240
Thus, the Supreme Court held that the search was a type of regulatory
function that was reasonable as applied to probationers but not the public
at large. n241

Applying this reasoning to DNA sampling, the Second Circuit likewise relied
on statistics showing that certain classes of offenders have higher
recidivism rates. n242 Therefore, the court concluded that there was a
strong state interest in solving both past and future crimes. n243 The court
then balanced this interest against the minimal intrusion of a blood test
n244 and the "lack of discretionary decisions" involved in choosing whom to
sample, n245 and found the sampling constitutional. n246 Unlike the
Massachusetts court in Landry, however, the Second Circuit stressed that it
was not basing its holding on the diminished expectation of privacy
reasoning. n247

Regardless of whether courts rely on the "diminished expectation of privacy"
reasoning or the "special need" exception, all courts that have considered
DNA database statutes have relied to some degree on recidivism rates. n248
Thus, as DNA databases become more expansive, i.e. including all convicted
offenders, n249 non-convicted arrestees, n250 or everyone at birth, n251
critics have and will become more dubious of the  [*364]  recidivism
argument. n252 Opponents argue that the government interest will decrease
and, therefore, the potential for a Fourth Amendment violation will
increase. n253

2. Potential for Abuse

In addition to Fourth and Fourteenth Amendment constitutional challenges,
DNA databanks create another cause for concern. n254 As mentioned before,
each state's DNA legislation differs in many respects. n255 One
inconsistency among the states is the existence and type of abuse
protections. n256 People fear that without proper safeguards in place,
unauthorized people will be able to access the data stored in the databases.
n257 Critics say that this could have far more dangerous effects than a
corruption of a fingerprint database because of the type of information
stored. n258 Beyond its identification uses, DNA also can provide volumes of
information about a person and his family, including the ability to predict
susceptibility to diseases. n259 Without proper protections, the data
potentially could be used as another type of genetic discrimination. n260
Critics foresee that insurance companies could use the data to raise
premiums or reject extending coverage. n261 Others fear that some could be
declined job offers or experience employment discrimination based on the
data. n262

Unfortunately, many states do not have adequate protections in place against
such abuse. n263 Among the states that do explicitly prohibit such uses,
some lack specifically defined punishments. n264 Other states simply provide
for the authorized uses of the data but even those are not specifically
defined. n265 Vague phrases such as "law enforcement purposes" conceivably
can be interpreted very broadly or  [*365]  very narrowly. n266 For
instance, the phrase could be interpreted to mean that the data can only be
used for identification purposes. n267 Some, however, could interpret the
same phrase to allow for looking for specific genetic traits such as
diabetes to help provide non-identification clues in a criminal
investigation. n268 Some opponents even fear that the phrase could be
interpreted extremely broadly to allow for a type of eugenics. n269 They
suggest that eventually scientists may find a "violence gene" that could be
used by law enforcement to weed out people prone to criminal activity. n270
Therefore, legislatures and organizations, such as the National Commission
on the Future Use of DNA Evidence, are constantly working to reword
legislation in order to prevent any possible misuse. n271

3. Backlog and Laboratory Concerns

One of the biggest concerns facing state and federal law enforcement
agencies with the expansion of DNA databanks is the issue of backlog. n272
Currently there are approximately 1.5 million convicted felons who qualify
to be included in the databanks but have not been sampled. n273 Furthermore,
not every state that has a database statute is collecting samples from all
eligible classes of people. n274 Some states have backlogs of samples that
have not been appropriately analyzed yet. n275 Federal and state agencies
are blaming this backlog on a lack of funds and support. n276 Thus, in the
face of DNA database expansion, lawmakers must be conscious of the financial
practicality of actually implementing the changes. n277

Another related implementation problem concerns the type of testing used on
the samples. n278 Many states are realizing that their databases are both
internally and externally incompatible and therefore  [*366]  ineffectual.
n279 Samples from crime scenes may be too small to undergo RFLP testing and
therefore must be subjected to PCR testing. n280 The offender samples may be
larger and therefore need to be tested using the RFLP technique. n281 Thus,
the crime scene samples will not be compatible with offender samples for
purposes of looking for a match. n282 The same problem occurs on a national
level when one state uses PCR while another state uses RFLP testing. n283 In
response to this problem, the FBI is trying to expand the use of a
standardized technology that would eliminate incompatibility issues. n284

In addition to the testing procedures used by laboratories, others are
concerned with the presence or lack of standardized laboratory requirements.
n285 Under the DNA Identification Act, laboratories must meet certain
specified standards to satisfy federal requirements for inclusion in CODIS.
n286 Some state statutes, however, lack similar requirements and essentially
leave it up to the laboratory personnel to ensure testing quality. n287
Thus, on the state level, many critics worry that without such standards in
place the potential for mistakes and ultimately false matches could rise to
dangerous levels. n288

B. The Britain Experience: A One in Thirty-Seven Million Chance of Mistake?

In 1993, a royal commission on the criminal justice system in the United
Kingdom set up a rudimentary DNA database using RFLP analyzed samples. n289
The database included approximately three to four thousand samples and only
tested the samples at a single locus on the DNA strand. n290 Under the
legislation at the time, however, the samples allowed for inclusion were
severely limited. n291 Only samples from convicts who had been convicted due
to DNA could be included in the  [*367]  database. n292 Even with these
limitations, however, law enforcement officials were able to achieve a
number of successful hits from the database. n293

After considerable lobbying the legislature passed the Criminal Justice and
Public Order Act in 1994, which allowed for the sampling and storing of DNA
from any individual who had been convicted, cautioned, or suspected of
committing a recordable offense. n294 Then in 1995, Britain officially
opened the first true criminal DNA database. n295 As the world's largest
database of its kind, the English database has experienced exponential
growth. n296 Over the past year the amount of included samples increased
from 470,000 to 660,000. n297

Like its United States counterpart, the database includes samples from crime
scenes and convicts. n298 It also contains, in contrast, samples from
suspects in unsolved crimes. n299 In addition, the English database differs
from most American databases in that it includes far more classes of
offenders. n300 Instead of simply including samples from sex offenders and
other felonies, it also includes samples from offenders of "petty" crimes
such as burglaries and car thefts. n301

Moreover, unlike most database statutes in the United States, the British
system authorizes law enforcement to take samples from people arrested of
crimes before conviction. n302 Under this system, while a person is awaiting
conviction or acquittal, his sample is stored and searched in the database
just like any other sample from a convicted felon. n303 If the person is
acquitted, however, the sample is expunged. n304 If a match is found in the
interim, it can be used by law enforcement even if the person is later
acquitted of the crime for which he was originally arrested. n305

 [*368]  In addition, British law enforcement agencies utilize a technique
popularly known as DNA "dragnetting." n306 During a particular
investigation, police round up a group of people, usually by geographic
region, and ask for voluntary samples. n307 Although the samples are
supposed to be voluntary, many have suggested that the police use highly
persuasive techniques to coerce people into giving samples. n308 The police
then put the samples into a separate database to compare to samples from a
specific crime scene. n309 Once the crime is solved the voluntary samples
are destroyed, and they are always kept separate from the main database.
n310

Overall, British officials estimate that the main DNA database eventually
will include one third of all English men between the ages of sixteen and
thirty. n311 Furthermore, some law enforcement personnel have expressed the
desire to have the entire citizenship tested and recorded. n312 With so many
samples included, the database averages between four hundred and seven
hundred matches a week, as opposed to the approximate six hundred total
matches attributable to the United States databases. n313 In addition, the
United Kingdom has registered the database to be shared with other countries
throughout Europe and beyond. n314

Unfortunately, the overwhelming size of the British database has its
drawbacks. n315 In late January 2000, British database officials faced a
major setback. n316 During a meeting with the United States National
Commission of the Future of DNA Evidence, British authorities announced that
Great Britain's national DNA database had resulted in a mistaken
identification. n317 In 1999, Manchester police lifted the DNA from evidence
left at the scene of a burglary. n318 The sample was analyzed at six loci,
or points of identification, and entered into the DNA  [*369]  database.
n319 The computer then matched it to one of the 660,000 samples on file.
n320 British authorities estimated that the likelihood of the match
occurring at random was one in thirty-seven million. n321 The matched
suspect, however, provided an alibi and the police decided to conduct
another DNA test. n322 The second time, a new technique was used that could
compare the samples at ten loci rather than six. n323 The suspect's DNA did
not match at all of the additional loci and he was released. n324

Although the recent mismatch is officially considered the first mistake
produced by a national database, law enforcement communities all over the
world have reason to be concerned. n325 An investigator from the British
government appeals board is concerned that everyone in the United Kingdom
who was previously convicted with six loci testing will demand review for
possible similar mistakes. n326 British authorities claim that the mismatch
was probably caused by the rapidly increasing size of the database. n327 One
database spokesman was even reported to have said that such a mistake was
"to be expected." n328 The reasoning is that as more samples are added, the
higher the chance that the samples will be similar along more loci. n329
Thus, other countries, such as the United States, who test more loci or have
smaller databases, claim not to be immediately concerned. n330 When looking
to the future, however, some FBI officials are worried that similar
mismatches could occur as the databases become more expansive. n331

 [*370]  C. Birth of DNA Databanks in the Far East

Within the past decade, many other countries, especially those in the Far
East, also are experiencing the DNA Revolution. n332 Like officials in the
United Kingdom and the United States, legislatures in Australia, China, and
New Zealand have realized the immense law enforcement potential of DNA and
have begun to examine the possibility of investigative DNA databanks. n333
Likewise, they also have experienced similar resistance from civil
libertarian groups and the public at large. n334 Because these databanks are
only in their infancy or developing stages, the most pressing question
facing legislatures is deciding whose samples to include in the databanks.
n335 In addition, opponents are also raising the familiar privacy and access
concerns. n336

1. Australia

In late 1999, Australia's federal government decided to fund a national
forensic DNA database as part of a fifty million dollar national criminal
investigation system. n337 Currently, only a few of the territories have
legislation that allows for the police to build up a DNA databank. n338 The
push for the national database, however, has caused the other territories to
begin to review and model similar legislation. n339

The Model Criminal Code Officers Committee of the Standing Committee of
Attorneys-General published the Model Forensic Procedures Bill in May 1999
to act as a guide for the territories to develop or enhance their DNA
legislation. n340 The territory of Victoria closely follows the model by
authorizing police to seek court orders to secure DNA samples from convicted
murderers and rapists. n341 The legislation  [*371]  in the Northern
Territory, however, is more closely modeled after the British legislation.
n342 Because the police do not classify the sample as intimate, they are
able to secure samples without obtaining consent or a court order. n343 In
addition, the Northern Territory legislation is more like the British model
in that it allows for sampling from a broader class of convicts, including
those guilty of some driving offenses. n344

Other states in Australia, however, are having more difficulty developing
DNA databank legislation. n345 In New South Wales (NSW), police and privacy
officials are locked in a heated debate over proposed databank legislation.
n346 In mid-April 2000, the police in the small town of Wee Waa conducted
one of Australia's first mass DNA screens. n347 After the brutal rape and
beating of a ninety-three year old woman, police requested all of the six
hundred adult males of the town to submit voluntary DNA samples for
identification. n348 Despite the voluntary nature of the procedure, many
opponents suggested that declining to provide a sample would be seen as
highly suspect. n349 Furthermore, critics believed that police did not
really expect to find the rapist through the DNA sampling. n350 Instead,
they opined that the mass screen was actually a political tactic to get
support for the highly controversial NSW DNA databank legislation. n351

Under the proposed legislation that is before the State Cabinet, police
would be authorized to begin to build a DNA databank in 2001. n352 The
databank would consist of saliva samples taken from  [*372]  NSW prisoners
convicted of crimes that carry a minimum sentence of five years
imprisonment. n353 Moreover, some proponents of the database, such as the
National Party MP for Barwon, have urged that the legislation be further
expanded to included people convicted of petty offenses. n354 On the other
side of the controversy, civil liberties groups, such as Justice Action,
fear that mass DNA screenings and databanks not only violate the public's
rights but also serve as "a movement of the onus of proof onto the public
itself. People are to feel guilty until proved innocent." n355 In addition,
the NSW Privacy Commissioner worries that the proposed legislation does not
have enough safeguards in place to prevent misuse and control access. n356
The Privacy Commissioner finds it alarming that the NSW Government did not
consult Privacy NSW during the debate over the databank legislation. n357
Further, he suggests that the Government is being pressured by the Police
Commissioner to pass the legislation despite the fact that it lacks many of
the privacy safeguards present in the Model Forensic Procedures Bill. n358
Thus, the Privacy Commissioner has urged the government to consider a number
of issues before passing any legislation, including deciding who will be
sampled, who will have access, what kind of auditing will be done, and the
procedures for expansion. n359

2. New Zealand

New Zealand first raised the issue of DNA testing in 1978 when the New
Zealand Criminal Law Reform Committee published a Report on Bodily
Examination and Samples as a Means of Identification. n360 At that time, the
recommendation of testing criminal suspects was met with heavy resistance.
n361 During the next several years, the controversial report all but
disappeared from the public's conscience. n362 In the late 1980s, however, a
private bill was introduced  [*373]  that proposed many of the same
recommendations. n363 After remaining dormant for a few years, New Zealand's
Minister of Justice announced government support for DNA testing and a
national DNA databank. n364

The Criminal Investigations (Blood Samples) Act was passed in 1995 and went
into affect in 1996. n365 Under the Act, DNA samples from persons convicted
of certain offenses, volunteers, and suspects are included in a national
databank. n366 Over 11,000 samples have been entered in the databank since
its inception, and officials estimate that approximately three hundred
samples are added each month. n367 Starting in 1998 the databank began to
search for comparisons between the individual samples and unsolved crime
scene samples. n368 Currently, approximately thirty percent of the crime
scene samples match an individual sample present on the database. n369 In
addition, about twenty percent of the unsolved crimes match samples from
other crimes on the database. n370

Despite the obvious success of the New Zealand databank, some groups still
are concerned about the privacy issues implicated. n371 While the Act was
still under consideration, New Zealand's Privacy Commissioner expressed
concern over some of the legislation's provisions. n372 While noting the
presence of certain safeguards, the Commissioner objected to the inclusion
of voluntary samples of innocent people. n373 He stated in a report
regarding the proposed legislation that only samples from those convicted of
serious offenses should be entered into the databank. n374 He supported his
contention by arguing that certain convicted felons pose a greater risk to
society as potential recidivists, while no similar justification exists for
the inclusion of voluntary  [*374]  samples of innocent people. n375
Likewise, the Auckland Council for Civil Liberties worries that DNA
databanking creates a slippery slope of state surveillance that infringes
the public's privacy rights. n376 The general concern is that as society
becomes more accepting of DNA sampling, police will continue to expand the
DNA databank until it includes a large, if not complete, portion of society.
n377

3. China

Ever since the 1997 rape and murder of Democratic Progressive Party official
Peng Wan-ju, sex crimes have become a central issue for the public in China.
n378 According to an analysis conducted by sociologists, approximately
10,000 sexual assaults are reported each year in Taiwan. n379 In 1995, 624
people were prosecuted for sex crimes but only 216 were convicted. n380
Sociologists claim that the low conviction rate is due to the difficulty of
gathering appropriate evidence in such cases. n381 Given these troubling
statistics, China was ripe to pass a law in early 1999 that allows the
Ministry of Justice and the Ministry of the Interior to establish a DNA
databank. n382 Under the law, convicted and suspected sex offenders would be
asked to provide voluntary blood samples. n383 If they refuse, a prosecutor
may force them to provide samples via a subpoena. n384 The legislation
allows the DNA samples to be kept for at least ten years. n385 In addition,
written and photographic documentation of the DNA records may be retained
until ten years after the death of the person who provided the sample. n386

A similar proposal in southern China that would allow the formation of a DNA
database, however, has encountered more resistance. n387 Under the proposal,
people suspected of committing crimes with a jail term of five or more years
would be required to submit a non-intimate  [*375]  sample. n388 The
database also would include samples from criminals convicted of serious
offenses. n389 In addition, the draft law allows people to volunteer to
submit a DNA sample to eliminate themselves from suspicion for specific
crimes. n390

Proponents of the law argue that the draft law is too restrictive because it
would require judicial authorization or consent in order to force a sample
from a suspect. n391 They claim that this will cause a tremendous backlog in
the courts. n392 On the other side of the debate, some argue that inclusion
of convicts' samples is unfair to ex-convicts who are supposed to have paid
their debt to society. n393 In addition, others argue that the law should
not allow for the inclusion of voluntary samples. n394 They claim that this
is a tactic to collect samples from society as a whole. n395 Although the
samples would be voluntary, many maintain that this would shift the burden
of proof onto the public to prove their own innocence. n396 In addition, the
Privacy Commissioner for Personal Data is closely reviewing the proposed
legislation to ensure that it does not conflict with the Personal Data
(Privacy) Ordinance. n397

III. ANALYSIS

In 1998, the Honorable Laurie Robinson addressed the issue of international
crime at The Twelfth International Congress on Criminology. n398 During the
speech, the Department of Justice announced the establishment of an
International Center within the National Institute of Justice. n399 The
Center is responsible for stimulating comparative research and information
sharing among criminal justice research institutes around the world. n400
The call for such a division was based on the realization that crime no
longer can be confronted in  [*376]  isolation. n401 During the address, the
assistant attorney general indicated that criminals now have the ability to
cross international borders within a few hours. n402 Therefore, crime has
become a global issue and "what happens in one part of the world impacts all
the rest. And crime problems and trends are no different." n403

Thus, the development and potential of an international DNA database is not
hard to imagine. n404 The United Kingdom already shares its DNA database
information with other participating countries. n405 Countries that still
are developing and modifying database laws, such as the United States and
Australia, have seen tremendous expansion of acceptable legislation. n406
These countries are quickly responding to the demand for justice and lower
crime rates by allowing for the inclusion of samples from more and more
classes of people. n407 Some believe that a mandatory general public
database is not far off. n408

An International DNA database certainly could provide potential benefits.
n409 In early 2000, a twenty-six year old navy crewman, John Eric Armstrong,
was implicated in at least sixteen slayings of prostitutes all over the
world, including Japan, Korea, and Israel. n410 It is suspected that
Armstrong spent his eight years aboard the USS Nimitz going from port to
port strangling women. n411 Armstrong claims that he killed or attempted to
kill every prostitute with whom he had sex. n412 An international DNA
database definitely could aid law enforcement in the investigation of these
and other similar sexually related crimes. n413 Other international crimes,
however, tend to be white-collar  [*377]  crimes and Internet abuse. n414 An
international DNA database would be far less useful to the investigations of
these crimes. n415

Thus, before implementing an international database, government officials
should carefully review the true benefits of such a system. Because many
international criminal investigations would not be aided by such a system,
it is not clear that a balancing test between the database pros and cons
would favor an international system. n416 One of the biggest concerns that
would need to be addressed is the potential for tremendous backlog and an
unwieldy amount of data. n417 Not only would a large international database
cause traditional backlog problems, but it would also raise new concerns.
n418

The United Kingdom already has encountered problems with its large databank.
n419 The more samples included on the system, the more likely it will
produce false matches. n420 Therefore, as countries combine their data, the
statistical significance of a match will be watered down. n421 Laboratories
would have to begin to test more loci to improve the statistical
significance. n422 In addition, an international database will make it more
difficult for statisticians to derive the necessary population comparison
statistic. n423 Therefore, such a database eventually could become a
hindrance to prosecutors. n424 Furthermore, the potential for juror
mystification will increase and judges likely will become less willing to
admit evidence of database produced matches. n425

Moreover, the development of an international database would demand extreme
harmonization efforts. n426 Currently, local and national DNA database
legislation differs on many points. n427 Some laws  [*378]  allow for
testing of suspects and arrestees, while others only allow for testing of
certain convicts. n428 In addition, each law has different access, use, and
privacy provisions. n429 Participating countries would have to come together
to develop a standard for each of these issues. n430 Given the recent trend
towards databank expansion, it is probable that many civil libertarian
groups would worry that states and countries with stricter standards would
be forced to relax their restrictions on an international level. n431 In
addition, an international database would be more difficult to monitor for
access abuse. n432 Thus, without specific auditing procedures in place,
concerns over samples being used for insurance and job discrimination also
would arise. n433

Moreover, local and national database legislation differs in the way DNA
samples are collected and tested. n434 Some samples are collected from
saliva while others are collected from blood. n435 In addition, some are
tested using the RLPF process, while other samples are tested with PCR
procedures. n436 Moreover, each country tests a different number of loci.
n437 In order for an international databank to be effective, samples need to
be uniform for both scientific and legal reasons. n438 The United States
already has had to confront the scientific problem caused when samples are
inconsistent because they are analyzed using both RLPF and PCR testing. n439
Moreover, officials in China and Australia are focusing on the legal issue
of how the sample is taken. n440 A mouth swab sample is considered
non-intimate while a blood sample is intimate. n441 Under certain
legislation, intimate samples require consent or a court order while other
samples do not. n442

 [*379]  Given these serious potential problems, an international DNA
database may not be the answer that governments and victims' families are
looking for. Instead, countries should continue to develop their own
national DNA databank laws to answer these concerns individually. After
carefully reviewing privacy and abuse concerns locally, legislatures can
provide for international sample sharing on a case-by-case basis. n443 DNA
database laws can be drafted to allow law enforcement officials to share
samples with other countries in specific instances. n444 Because individual
governments would draft the laws, it would be less likely that some
countries would feel pressured to expand their legislation to match the
provisions of other countries. n445 The laws could explicitly set out what
data will be entered and shared and how data from other countries would be
used.

In addition, such a system also would prevent the watering down of DNA
statistical, and therefore legal, significance. n446 While a large,
centralized international databank would cause a backlog and a reduction in
statistical significance, a system of individual DNA databanks sharing data
on a case-by-case basis would not have the same effect. n447 Prosecutors and
law enforcement could maintain the statistical strength of the samples by
comparing crime scene data to countries individually, therefore reducing the
sample pool. n448 With smaller databanks there would also be a lower chance
of incorrect matches. n449 In addition, individual databanks would make it
much easier for scientists to determine population comparison statistics.
n450

Moreover, a system of individual national databanks would be easier to audit
for potential access abuse. n451 It would be much easier for officials to
monitor smaller databanks rather than trying to oversee a massive system.
n452 In addition, legislatures have to provide for some type of criminal
sanction for abuse. n453 If there is a centralized international database, a
criminal sanction could create jurisdictional problems. With individual
databanks, however, each country can develop  [*380]  its own criminal
sanctions without regard to jurisdictional issues.

CONCLUSION

In the wake of the horrific stories of young Hope Denise Hall and the
ninety-three year old Australian rape victim, it is easy and understandable
for the public at large to demand justice at all costs. Just as many of the
male citizens of Wee Waa, Australia were willing to submit DNA samples to
help solve a terrible crime, many people across the world cannot understand
why anyone would want to get in the way of improved crime fighting.

Society must be cautioned, however, in the era of the DNA Revolution. The
potential for error, privacy violations, and jury mystification become
greater each day, and yet, many are quick to assume that the only people who
have reason for concern are the guilty. Thus, in developing an international
crime-fighting tool, legislatures need to be aware of the potential negative
ramifications of a centralized system. With such awareness, legislatures
could provide the benefits of an international database while eliminating
some of the costs by focusing on individual national databank legislation
and data sharing. Otherwise, the potential for abuse arising out of
unwarranted expansion could infringe upon the rights of society as a whole.
If that happens, not only criminals would have a reason for concern.

FOOTNOTES:
n1 See, e.g., Esmeralda Barnes, Slaying Moves Mother to Action, FAIRFAX J.
(Mar. 27, 1997),
http://hope-dna.com/articles/ha_fairfaxjournal_970327_al.htm; Jon Pope, TV
Station Employee Found Dead, RICHMOND TIMES-DISPATCH (July 12, 1994),
http://hope-dna.com/articles/ha_richtimesdisp_940712.htm; Nick Pronko, City
Records Sixth Murder; PETERSBURG PROGRESS INDEX (July 12, 1994),
http://hope-dna.com/articles/ha_progressindex940712.htm.

n2 E.g., Jon Pope, "Brilliant" Future Dashed, RICHMOND TIMES-DISPATCH (July
12, 1994), http://hope-dna.com/articles/ha_richtimesdisp_940712_a.htm;
Memorial Service Is Set For Slain VSU Student (July 16, 1994), at
http://hope-dna.com/articles/ha_richtimesdisp_940716.htm; Hope Denise Hall,
JUC Article, at http://hope-dna.com/articles/ha_juc_art.htm (last visited
Feb. 16, 2000) [hereinafter JUC Article].

n3 See, e.g., Lorraine Blackwell, Jury Recommends Death in Murder Trial,
RICHMOND TIMES DISPATCH (July 24, 1998),
http://hope-dna.com/articles/ha_richtimesdisp_980724_art2.htm; Barnes, supra
note 1.

n4 Barnes, supra note 1.

n5 Blackwell, supra note 3; Barnes, supra note 1.

n6 See Blackwell, supra note 3; Barnes, supra note 1.

n7 Blackwell, supra note 3; Barnes, supra note 1.

n8 Barnes, supra note 1.

n9 See Barnes, supra note 1; Michael Grossman, DNA "Cold Hit" Gives Police a
New Suspect in 1994 Murder, PETERSBURG PROGRESS INDEX (Jan. 9, 1997),
http://hope-dna.com/articles/ha_progressindex_960827.htm.

n10 Barnes, supra note 1; JUC Article, supra note 2.

n11 See Barnes, supra note 1; JUC Article, supra note 2.

n12 See Barnes, supra note 1.

n13 Id.

n14 Id.

n15 Id.

n16 E.g., Barnes, supra note 1; Maribeth Brewster, Losing Hope, STYLE WEEKLY
(July 19, 1994), http://hope-dna.com/articles/ha_styleweekly_940719.htm;
Pope, supra note 2.

n17 See Barnes, supra note 1; Brewster, supra note 16; Pope, supra note 2.

n18 See, e.g., Barnes, supra note 1; Pope, supra note 1; Pronko, supra note
1.

n19 See Barnes, supra note 1; Pope, supra note 1; Pronko, supra note 1.

n20 Barnes, supra note 1; Pope, supra note 1; Pronko, supra note 1.

n21 E.g., Lorraine Blackwell, Women Tell of Earlier Attacks, RICHMOND TIMES
DISPATCH (July 23, 1998),
http://hope-dna.com/articles/ha_richtimesdisp_980723.htm; Ellen Sorokin,
Slaying Testimony Hits Rapist, FAIRFAX J. (July 23, 1998); Michael Grossman,
Death Penalty Is Sought in Hall Murder, PETERSBURG PROGRESS INDEX (Mar. 21,
1997), http://hope-dna.com/articles/ha_progressindex_970321.htm.

n22 See Blackwell, supra note 21; Sorokin, supra note 21; Grossman, supra
note 21.

n23 See, e.g., Ellen Sorokin, Trial Begins in Hall Murder Case, FAIRFAX J.
(July 22, 1998), http://hope-dna.com/articles/ha_fairfaxjournal_980722_1.htm
[hereinafter Trial]; Ellen Sorokin, DNA + Database Tells Tale, FAIRFAX J.
(Mar. 27, 1997), http://hope-dna.com/articles/ha_fairfaxjournal_970327_1.htm
[hereinafter DNA Database]; Grossman, supra note 9.

n24 Id.

n25 Pronko, supra note 1.

n26 Ellen Sorokin, '94 Killing In Jury's Hands, FAIRFAX J. (July 24, 1998),
http://hope-dna.com/articles/ha_fairfaxjournal_980724.htm.

n27 Id.

n28 See, e.g., Trial, supra note 23; DNA Database, supra note 23; Grossman,
supra note 9.

n29 See Trial, supra note 23; DNA Database, supra note 23; Grossman, supra
note 9.

n30 Trial, supra note 23; DNA Database, supra note 23; Grossman, supra note
9.

n31 Trial, supra note 23; DNA Database, supra note 23; Grossman, supra note
9.

n32 Trial, supra note 23; DNA Database, supra note 23; Grossman, supra note
9.

n33 E.g., Trial, supra note 23; DNA Database, supra note 23; Grossman, supra
note 9.

n34 See Trial, supra note 23; DNA Database, supra note 23; Grossman, supra
note 9.

n35 Trial, supra note 23; DNA Database, supra note 23; Grossman, supra note
9.

n36 Lorraine Blackwell, Jury Sentences Man to Death For Rape, Murder,
RICHMOND TIMES DISPATCH (July 25, 1998),
http://hope-dna.com/articles/ha_richtimesdisp_980725.htm.

n37 E.g., VICTOR WEEDN & JOHN HICKS, U.S. DEP'T OF JUSTICE, THE UNREALIZED
POTENTIAL OF DNA TESTING (1998); Tony & Carol Sievers, Letter From Tony &
Carol Sievers, at http://www.hope-dna.com/letter.htm (last visited Feb. 16,
2000); Joseph Heeger, IUFO: Feds Want Your DNA
http://www.beyond-the-illusion.com/lists/iufo/1998/Nov/0133.html (last
visited Feb. 19, 2000).

n38 E.g., WEEDN, supra note 37; Sievers, supra note 37; Heeger, supra note
37.

n39 Sievers, supra note 37.

n40 See WEEDN, supra note 37.

n41 E.g., WEEDN, supra note 37; NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE,
U.S. DEP'T OF JUSTICE, NCJ 177626, POSTCONVICTION DNA TESTING:
RECOMMENDATIONS FOR HANDLING REQUESTS iii (1999); Heeger, supra note 37.

n42 See, e.g., Michael Higgins, DNA Databases Help Nail Slippery Criminal,
But Their Potential Uses Make Privacy Advocates Nervous When it Comes to
Arrestees and Ordinary Citizens, 85-OCT A.B.A. J. 64 (1999); Gary Tuchman,
New York to Expand DNA Testing of Convicts, CNN.COM (Oct. 20, 1999), at
wysiwyg://21/http://www.cnn.com/US/9910/20/dna.database/index.htm; Dan L.
Burk & Jennifer A. Hess, Genetic Privacy: Constitutional Considerations in
Forensic DNA Testing, 5 GEO. MASON U. CIV. RTS. L.J. 1, 15-16 (1994).

n43 NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 21.

n44 Id.

n45 Id.; Burk & Hess, supra note 42, at 3-4.

N46 E.g., Angus J. Dodson, Comment, DNA "Line-Ups" Based on a Reasonable
Suspicion Standard, 71 U. COLO. L. REV. 221, 227 (2000); Robert W.
Schumacher II, Article, Expanding New York's DNA Database: The Future of Law
Enforcement, 26 FORDHAM URB. L.J. 1635, 1638-39 (1999); Burk & Hess, supra
note 42, at 3-4.

n47 Burk & Hess, supra note 42, at 4.

n48 Id.

n49 E.g., David F. Betsch, DNA Fingerprinting in Human Health and Society,
at http://esg-www.mit.edu:8001/esgbio/rdna/fingerprint.html (last visited
Feb. 20, 2000); Michelle Hibbert, DNA Databanks: Law Enforcement's Greatest
Surveillance Tool?, 34 WAKE FOREST L. REV. 767, 818-19 (1999); Burk & Hess,
supra note 42, at 4.

n50 E.g., Dodson, supra note 46, at 227; Schumacher, supra note 46, at
1638-39; Burk & Hess, supra note 42, at 3-4.

n51 See Schumacher, supra note 46, at 1638-39.

n52 Id.

n53 Id.

n54 Eric S. Lander, DNA on the Witness Stand, at
http://www.accessexcellence.org/AB/WYW/index.html (last visited Feb. 20,
2000).

n55 E.g., Schumacher, supra note 46, at 1640; Lander, supra note 54.

n56 E.g., Schumacher, supra note 46, at 1640; Lander, supra note 54.

n57 E.g., Lander, supra note 54; Schumacher, supra note 46, at 1639; Dodson,
supra note 46, at 227. It is important to note, however, that identical
twins have identical DNA and do not differ at any point along the molecule.
Dodson, supra note 46, at 227.

n58 Lander, supra note 54.

n59 See, e.g., Lander, supra note 54; Schumacher, supra note 46, at 1639;
William C. Thompson, Evaluating the Admissibility of New Genetic
Identification Tests: Lessons from the "DNA War," 84 J. CRIM. L. &
CRIMINOLOGY 22, 26-27 (1993).

n60 See Lander, supra note 54.

n61 Id.

n62 Id.

n63 See id.

n64 Id.

n65 See, e.g., Lander, supra note 54; Schumacher, supra note 46, at 1639;
Charles M. Strom, Genetic Justice: A Lawyer's Guide to the Science of DNA
Testing, 87 ILL. B.J. 18, 20 (1999).

n66 See Lander, supra note 54.

n67 See id. Samples can come from a number of sources and, as the technology
develops, even more plausible sources may develop. See NAT'L COMM'N ON THE
FUTURE OF DNA EVIDENCE, U.S. DEP'T OF JUSTICE, WHAT EVERY LAW ENFORCEMENT
OFFICER SHOULD KNOW ABOUT DNA (1999). Currently, samples can be taken from
traditional bodily fluids such as blood, saliva, or semen. See id. However,
they also can be taken from hair, bones, clothing, organ tissue, and even
skin cells that have rubbed off onto inanimate objects such as glass,
fabrics, or even dirt. See id.

n68 Lander, supra note 54. When the samples do not match, however, it does
not mean that the suspect did not commit the crime. Id. For instance, the
DNA sample taken from the crime scene could be from an innocent person or a
co-conspirator. Id.

n69 Id.

n70 Id.

n71 Id.

n72 See id.

n73 See Lander, supra note 54.

n74 See id. There has been a great deal of controversy among the scientific
and legal communities surrounding these issues. See id. Currently there are
no mandatory standards for forensic testing. Id. In fact, there are higher
standards for the laboratory practices of someone who will diagnose strep
throat. Id. In addition, people are worried that the statistical
significance applied to DNA evidence is either over or underestimated. See
id. Therefore, the National Research Council Committee from the National
Academy of Sciences has taken important steps in defining standards for
laboratory and statistical calculations. Id. One significant contribution
has been the creation of a mandatory proficiency test for laboratories
conducting DNA sampling and analyses. Id.

n75 See id.

n76 Id.

n77 Id. In addition to statistical probabilities, other concerns must be
addressed when determining the appropriate weight to be given to matches.
See NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 21-29. For
instance, identical twins are known to have exact DNA matches and therefore,
must always be considered in identity issues. Id. at 21. In addition,
scientists indicate that some samples from one individual could show
multiple DNA sources due to recent blood transfusions. Id. at 22. Finally,
the need for control samples is important, especially in sexual assault
cases, to ensure that no one is improperly included or excluded as a
suspect. Id. at 22.

n78 Richard Zitrin, DNA Expert Retained for Decades-Old Murder Case, APB
NEWS (Oct. 15, 1999),
http://www.apbnews.com/newscenter/breaki...ws/1999/10/15/oldcase1015_01.html?s=en.
A result can be inconclusive for a number of reasons, such as an inadequate
sample or the lack of a control sample. NAT'L COMM'N ON THE FUTURE OF DNA
EVIDENCE, supra note 41, at 29. A sample is considered conclusive if it
matches along all tested points of variation and is compared to a control
sample. Id. at 28. A sample can be considered irrelevant if it comes from a
source that could be present legally, such as a consensual sexual partner.
Id. at 29.

n79 See, e.g., NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at
26-28; Schumacher, supra note 46, at 1640-46; Thompson, supra note 59, at
26-30.

n80 See, e.g., NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at
26-28; Schumacher, supra note 46, at 1640-46; Thompson, supra note 59, at
26-30..

n81 See Schumacher, supra note 46, at 1640-46.

n82 NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 26-27.
RFLP testing also has been used frequently in the area of familial testing,
such as paternity tests. See id.

n83 Id. at 26.

n84 Id. There are approximately 300 appellate rulings regarding RFLP testing
in the United States. Id.

n85 See id. at 27; Schumacher, supra note 46, at 1640-41.

n86 See Schumacher, supra note 46, at 1640-41. It follows that a sample
fragment that repeats a sequence three times will be longer than a fragment
that only repeats twice. See id.

n87 See id. For a more in depth analysis, see NAT'L COMMISSION ON THE FUTURE
OF DNA EVIDENCE, supra note 41, at 27.

n88 NAT'L COMMISSION ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 26. A
"large" sample would contain at least 100,000 cells, e.g., a dime-sized or
larger saturated bloodstain. Id.

n89 See id.

n90 Id.; Schumacher, supra note 46, at 1642.

n91 See Schumacher, supra note 46, at 1642.

n92 NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 27;
Schumacher, supra note 46, at 1641-42.

n93 See NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 27.
This statement assumes that the testing was conducted correctly and that
other considerations previously mentioned were taken into account. See id.
at 21-24.

n94 Id. at 27.

n95 Id.

n96 Id.

n97 Id.

n98 See NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 27;
Schumacher, supra note 46, at 1642. A "smaller" sample only needs to contain
fifty to one hundred cells, e.g., a visible dot of blood or a single hair
root. NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 27. A
less pristine sample is one that may have degraded because of improper
storage or old age. Id.

n99 See NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 27;
Schumacher, supra note 46, at 1642-43.

n100 NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 27.

n101 Id. at 27-28; Schumacher, supra note 46, at 1643.

n102 See NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 27;
Schumacher, supra note 46, at 1643.

n103 NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 28;
Schumacher, supra note 46, at 1643-44.

n104 Schumacher, supra note 46, at 1643.

n105 NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 28. The
mitochondria is a cell organelle involved in producing cellular energy. Id.

n106 See id.

n107 See id.

n108 Id.

n109 See id.

n110 See, e.g., NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41,
at 1; WEEDN & HICKS, supra note 37; Betty Anne Bowser, Strands of Justice,
ONLINE NEWSHOUR (July 10, 1998), at
http://www.pbs.org/newshour/bb/law/july-dec98/dna_7-10.html.

n111 See Higgins, supra note 42, at 64-65; WEEDN & HICKS, supra note 37.

n112 Higgins, supra note 42, at 67.

n113 NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 1.

n114 NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 1. Before
the DNA identification, a seventeen-year-old mentally handicapped kitchen
porter had been incarcerated for several months after confessing to one of
the murders. Id.

n115 See Lander, supra note 54.

n116 Id.

n117 Id.

n118 Mike Blair, Feds Want Your DNA, at
http://www.beyond-the-illusion.com/lists/iufo/1998/Nov/0133.html (last
visited Feb. 19, 2000).

n119 See, e.g., Hibbert, supra note 49, at 767; WEEDN & HICKS, supra note
37; Burk & Hess, supra note 42, at 10-11.

n120 See, e.g., Richard Willing, Mismatch Calls DNA Tests Into Question, USA
TODAY (Feb. 8, 2000), http://www.usatoday.com/news/washdc/ncmon09.htm;
Roderick Campbell, Matching of DNA Could Help Clean Up Crimes, CANBERRA
TIMES, June 11, 1999, at 4, available at 1999 WL 15638053; Ng Kang-Chung,
Legislatures Fear DNA Test Plans Open to Abuse, S. CHINA MORNING POST, Feb.
12, 1999, at 6, available at 1999 WL 2520961.

n121 See Thompson, supra note 59, at 30-33.

n122 See id.

n123 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

n124 Thompson, supra note 59, at 30-31.

n125 Frye, 293 F. at 1014.

n126 See EDWARD CONNORS ET AL., U.S. DEP'T OF JUSTICE, NCJ 161258, CONVICTED
BY JURIES, EXONERATED BY SCIENCE: CASE STUDIES IN THE USE OF DNA EVIDENCE TO
ESTABLISH INNOCENCE AFTER TRIAL xii (1996).

n127 Id.

n128 See id. at xxii.

n129 See id. at xii.

n130 See id.; Thompson, supra note 59, at 31.

n131 See supra text accompanying notes 82-102.

n132 See supra text accompanying notes 103-109; Thompson, supra note 59, at
31.

n133 See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 585 (1993).

n134 Id.

n135 Id. at 588-89.

n136 FED. R. EVID. 702.

n137 Daubert, 509 U.S. at 592.

n138 Id. at 593-94.

n139 See CONNORS ET AL., supra note 126, at xii. In Daubert, Justice
Blackmun stated that judges still have the power to limit scientific
evidence admissibility under FED. R. EVID. 403. Daubert, 509 U.S. at 595. He
further stressed that caution is important because such evidence can have a
very powerful and mystifying effect over jurors. Id.

n140 See CONNORS ET AL., supra note 126, at xii.

n141 See id.

n142 Id.

n143 Id. at 6.

n144 Id. The four states that have not admitted DNA evidence are Maine,
North Dakota, Rhode Island, and Utah. id. at ex. 1. The three states that
have statutes requiring admission are Nevada, Oklahoma, and Tennessee. Id.

n145 See NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41, at 2.

n146 See id.

n147 Lander, supra note 54.

n148 Id. Blood marker tests, such as the Lattes test, allow scientists to
identify certain substances, such as ABO blood group substances, from a
biological stain. See CONNORS ET AL., supra note 126, at xv. Although these
tests are capable of narrowing down the possible source of the evidence,
they often fail to yield usable results because they are less discriminating
and more susceptible to deterioration. See id.

n149 See, e.g., Geraldine Sealey, The DNA Revolution, at
http://abcnews.go.com/sections/us/DailyNews/dnatesting990803.htm (last
visited Feb. 22, 2000); NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra
note 41, passim; CONNORS ET AL., supra note 126.

n150 See Sealey, supra note 149; CONNORS ET AL., supra note 126.

n151 CONNORS ET AL., supra note 126.

n152 See id. at iii.

n153 Id. at 34-76.

n154 Id. at iii.

n155 Id. at 35. The Maryland Court of Appeals overturned Bloodsworth's first
conviction because the police had withheld evidence regarding a possible
other suspect from his defense attorneys. Id. at 36.

n156 CONNORS ET AL., supra note 126, at 36.

n157 During a police interrogation, Bloodsworth mentioned a "bloody rock."
Id. This statement was considered significant because the murderer had
beaten the girl's head with a rock. Id. It was later revealed, however, that
there was a bloody rock placed on the table next to Bloodsworth during the
interrogation. Id.

n158 The prosecution provided evidence that Bloodsworth had told
acquaintances that he had done something "terrible" on the day of the murder
that would affect his marriage. Id. It was later revealed, however, that he
was referring to the fact that he had forgotten to buy his wife a promised
taco salad. Id.

n159 Id.

n160 Id.

n161 CONNORS ET AL., supra note 126, at 36. The first test conducted by the
Forensic Science Associates revealed Bloodsworth's DNA did not match any of
the evidence received for testing. Id. at 37. A second test was requested,
however, due to the possibility of improper sample labeling. Id. The second
test affirmed the findings of the first. Id. Finally, the FBI conducted a
third test, which confirmed the findings of the first two. Id.

n162 Id.

n163 Id. Because courts in Maryland only allow new evidence to be presented
within one year of the final appeal, Bloodsworth could not have been granted
a new trial. Id.

n164 Id.

n165 NAT'L COMM'N ON THE FUTURE OF DNA EVIDENCE, supra note 41.

n166 See id.

n167 See id.

n168 Id. at iii.

n169 See, e.g., R v. Sauve [1999] 41 W.C.B.2d 1; R v. Dougherty [1996] 3
N.Z.L.R. 257; R v. Yee David, [1995] 3 H.K.C. 525.

n170 See id.

n171 See Jack King, The Ordeal of Guy Paul Morin: Canada Copes With Systemic
Injustice, THE CHAMPION (Aug. 1998),
http://209.70.38.3/Champion/Articles/98aug01.htm; CONNORS ET AL., supra note
126, at iii.

n172 See id.

n173 See id.

n174 Hibbert, supra note 49, at 774.

n175 Id.

n176 Id.

n177 962 F.2d 302 (4th Cir. 1992).

n178 Hibbert, supra note 49, at 774.

n179 Id. at 774-75. Juveniles offenders are required to submit samples if
they committed crimes that would constitute felonies if they had been tried
as adults. See id.

n180 See id. at 775.

n181 See id.

n182 See id. at 775-78.

n183 See, e.g, ALA. CODE ¤ 36-18-24 (1998); N.M. STAT. ANN. ¤ 29-16-6
(Michie Supp. 1997); VA. CODE ANN. ¤ 19.2-310.2 (Michie 1995 & Supp. 1999).

n184 See, e.g, ARIZ. REV. STAT. ANN. ¤ 31-281 (A) (West Supp. 1998); ARK.
CODE ANN. ¤ 12-12-1109 (Michie Supp. 1997); DEL. CODE ANN. tit. 29, ¤ 4713
(1997).

n185 See LA. REV. STAT. ANN. ¤ 609 (West 1999).

n186 See TEX. GOV'T CODE ANN. ¤ 411.148(a)(2) (Vernon 1998).

n187 See, e.g., ALASKA STAT. ¤ 44.41.035 (Michie 1998); CONN. GEN. STAT.
ANN. ¤ 54-102g (West 1994 & Supp. 1998); FLA. STAT. ANN. ¤ 943.325 (West
1996 & Supp. 1999).

n188 See Hibbert, supra note 49, at 779-81.

n189 See id. at 779.

n190 See id.

n191 See id. at 788.

n192 Schumacher, supra note 46, at 1646.

n193 Id.

n194 See id.

n195 Id. at 1646 n.88.

n196 Id.

n197 Schumacher, supra note 46, at 1646 n.88.

n198 See, e.g., Sealey, supra note 149; Tuchman, supra note 42; Beverly
Lumpkin, DNA Commission Issues Reports, ABC NEWS (Sept. 27, 1999), at
http://www.abcnews.go.com/sections/us/DailyNews/dnatesting990927.htm.

n199 See Mark Hamblett, Sex Offender DNA Sampling Upheld, N.Y. L.J. (Feb.
22, 2000), http://www.nylj.com/stories/99/09/092199al.htm.

n200 Steve Niezgoda, Comments at the Meeting of the National Commission on
the Future of DNA Evidence, in Proceedings, at
http://www.ojp.usdoj.gov/nij/dnamtgtrans/transe.html (last visited Apr. 19,
2000).

n201 Id.

n202 Hamblett, supra note 199.

n203 See id.

n204 Hibbert, supra note 49, at 778; Benjamin Keehn, Strands of Justice: Do
DNA Databanks Infringe on Defendants' Rights?, ONLINE NEWS HOUR (July 17,
1998), at http://www.pbs.org/newshour/forum/july98/dna_databanks02.html.

n205 See Mark Hansen, Banking on DNA, at
http://www.abcnet.org/journal/aug99/08NDNA.html (last visited Feb. 22,
2000); Higgins, supra note 42, at 64-64.

n206 See, e.g., Tuchman, supra note 42; Christopher Asplen, The Future of
DNA Evidence, ABC NEWS (Aug. 4, 1999), at
http://www.abcnews.go.com/sections/us/DailyNews/dnaexpert080499_chat.htm;
Dr. Philip Reilly, Comments at the Meeting of the National Commission on the
Future of DNA Evidence (July 26, 1999), in Proceedings, at
http://www.ojp.usdoj.gov/nij/dnamtgtrans6/trans-h.html (last visited Feb.
22, 2000).

n207 Hamblett, supra note 199; Keehn, supra note 204.

n208 See Niezgoda, supra note 200.

n209 See, e.g., Hamblett, supra note 199; Higgins, supra note 42, at 86;
Burk & Hess, supra note 42, at 18-21.

n210 See, e.g., Hamblett, supra note 199; Higgins, supra note 42, at 86;
Burk & Hess, supra note 42, at 18-21.

n211 Landry v. Attorney General, 709 N.E.2d 1085 (Mass. 1999).

n212 MASS. GEN. LAWS ch. 22E, ¤¤ 1-15 (1997).

n213 Landry, 709 N.E.2d at 1085. An attempt or conspiracy to commit an
enumerated crime also falls under the challenged statute. See id. at 1087.

n214 Id.

n215 See id. at 1088.

n216 Id.

n217 Id. at 1089.

n218 Landry, 709 N.E.2d at 1089.

n219 Id. at 1090.

n220 Id.

n221 Id. at 1091.

n222 Id. The court cites to high rates of recidivism among certain types of
felons to support the government interest. Id. at 1091 n.10. Later in the
opinion, however, the court puzzlingly states that its opinion does not rely
on recidivism issues. See id. at 1092.

n223 Landry, 709 N.E.2d at 1091.

n224 Id.

n225 Id. at 1094. The state constitutional analysis was essentially the same
as the federal analysis. See id.

n226 Roe v. Marcotte, 193 F. 3d 72 (2d Cir. 1999).

n227 CONN. GEN. STAT. ¤ 54-102g (1994).

n228 Roe, 193 F.3d at 75-76.

n229 Id. at 77.

n230 Id.

n231 See id.

n232 Id. at 77-78.

n233 Skinner, 489 U.S. at 624.

n234 Id.

n235 See, e.g., O'Connor v. Ortega, 480 U.S. 709, 725 (1987) (finding search
of hospital employees' desks and offices falls within "special needs"
exception); New Jersey v. T.L.O., 469 U.S. 325, 346-47 (1985) (holding
search of student property reasonable under "special needs" exception); Bell
v. Wolfish, 441 U.S. 520, 558-60 (1979) (upholding body cavity inspections
of prison inmates).

n236 Roe, 193 F.3d at 78-79.

n237 Id. at 79.

n238 Id.

n239 Griffen, 483 U.S. at 870-74.

n240 Id. at 875.

n241 Id.

n242 Roe, 193 F.3d at 79.

n243 Id.

n244 See Skinner, 489 U.S. at 625 (confirming that blood tests do not
constitute an unduly extensive imposition on an individual's privacy).

n245 See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 667
(1989) (testing of all employees who applied for certain positions was
reasonable because no official discretion was involved).

n246 Roe, 193 F.3d at 80. Applying the "rational basis" test, the court held
that the statute did not violate the Equal Protection Clause of the
Fourteenth Amendment. See id. at 82. The court held that the even if the
statute was under-inclusive, it could not be invalidated on that basis
alone. See id.

n247 Id. at 81-82.

n248 See, e.g., Roe, 193 F.3d at 79; Jones v. Murray, 962 F.2d 302, 307 (4th
Cir. 1992); Landry, 709 N.E.2d at 1091 n.10.

n249 See ALA. CODE ¤ 36-18-24 (1994); N.M. STAT. ANN. ¤ 29-16-6 (Michie
1997); VA. CODE ANN. ¤ 19.2-310.2 (Michie 1995); WYO. STAT. ANN. ¤ 7-19-403
(Michie 1999).

n250 See LA. REV. STAT. ANN. ¤ 15:609 (West 1999).

n251 See Michael Smith, Comments at the Meeting of the National Commission
on the Future of DNA Evidence (July 26, 1999), in Proceedings, at
http://www.ojp.usdoj.gov/nij/dnamtgtrans6/trans-j.html (last visited Feb.
22, 2000).

n252 See Higgins, supra note 42, at 65-66.

n253 See id. at 66-67.

n254 See Bowser, supra note 110.

n255 See Hibbert, supra note 49, at 779.

n256 See id.

n257 Bowser, supra note 110.

n258 See Benjamin Keehn, Strands of Justice: Do DNA Databanks Infringe on
Defendants' Rights?, ONLINE NEWS HOUR (July 17, 1998), at
http://www.pbs.org/newshour/forum/july98/dna_databanks01.html.

n259 Id.

n260 Bowser, supra note 110.

n261 Id.

n262 Id.

n263 See Hibbert, supra note 49, at 821.

n264 See id.

n265 See id. at 779-81.

n266 See id. at 781-82.

n267 See id.

n268 Hibbert, supra note 49, at 782.

n269 Bowser, supra note 110; Schumacher, supra note 46, at 1654-55.

n270 Bowser, supra note 110.

n271 See Reilly, supra note 206.

n272 See Tuchman, supra note 42; Asplen, supra note 206.

n273 Asplen, supra note 206.

n274 Niezgoda, supra note 200.

n275 Id.

n276 Id.

n277 See id.

n278 See id.

n279 Niezgoda, supra note 200.

n280 See id.

n281 See id.

n282 See id.

n283 See id.

n284 Niezgoda, supra note 200.

n285 See Lander, supra note 54.

n286 Niezgoda, supra note 200.

n287 See Hibbert, supra note 49, at 797.

n288 See id.

n289 Lynn Fereday, Comments at the Meeting of the National Commission on the
Future of DNA Evidence (July 26, 1999), in Proceedings, at
http://www.ojp.usdoj.gov/nij/dnamtgtrans6/trans-i.htm (last visited Feb. 22,
2000).

n290 Id.

n291 See id.

n292 Id.

n293 Id.

n294 See Fereday, supra note 289.

n295 Blair, supra note 118.

n296 See Willing, supra note 120.

n297 Id.

n298 See FBI National DNA Database Is Up and Running, CONSPIRACY NEWSLINE
(Oct. 15, 1998), at http://www.parascope.com/articles/cnews/981015.htm
[hereinafter FBI National DNA Database].

n299 Id.

n300 See id.

n301 Id.

n302 Fereday, supra note 289.

n303 Id.

n304 Id.

n305 Id.

n306 Id.

n307 See Fereday, supra note 289.

n308 See id.

n309 Id.

n310 Id.

n311 FBI National DNA Database, supra note 298.

n312 Blair, supra note 118.

n313 See Asplen, supra note 206; Deborah Smith, Cops and Swabbers, SYDNEY
MORNING HERALD, Dec. 1, 1999, at 19, available at 1999 WL 29631811.

n314 Fereday, supra note 289.

n315 See Willing, supra note 120.

n316 See id.

n317 Id.

n318 Id.

n319 Id.

n320 Willing, supra note 120.

n321 Id.

n322 Id.

n323 Id. A technique that examines ten loci has a one in one billion
likelihood of a mismatch. Id.

n324 Id.

n325 See Willing, supra note 120.

n326 Id.

n327 Id.

n328 Id.

n329 Id.

n330 See Michael Zeigler, State DNA Data Locks in on Felons, ROCHESTER NEWS
(Feb. 12, 2000), available at http://www.rochesternews.com/0212dna.html.

n331 See Willing, supra note 120.

n332 See, e.g., Smith, supra note 313; Audrey Parwani, Voluntary Donations
of DNA 'A Danger,' S. CHINA MORNING POST, June 19, 1999, at 1, available at
1999 WL 19486409; Tim McBride, State Surveillance: The Slippery Slope, 4
PLPR 71 (1997), http://www.austlii.edu.au/au/other/plpr/vol4/no4/71.html.

n333 See Smith, supra note 313; Parwani, supra note 332, McBride, supra note
332.

n334 See Smith, supra note 313; Parwani, supra note 332, McBride, supra note
332.

n335 See Crispin Hull, DNA Sampling Is the Way to Go But There Are
Legitimate Concerns, CANBERRA TIMES, Feb. 13, 2000, at 2, available at 2000
WL 4604059.

n336 See id.

n337 Smith, supra note 313.

n338 See id.

n339 See id.

n340 Chris Puplick, Sirens Sound Over Privacy, at
wysiwyg://99/http://www.smh.com.au:80/news/0004/13/text/features3.html (last
visited Apr. 19, 2000).

n341 Smith, supra note 313.

n342 See id.

n343 Id.

n344 See id.

n345 See Puplick, supra note 340.

n346 See id.

n347 Shawn Donnan, Willing To Give Up Their DNA, But Privacy Too?, THE
CHRISTIAN SCIENCE MONITOR (Apr. 13, 2000), available at
http://www.csmonitor.com/durable/2000/04/13/pls4.htm.

n348 Id.

n349 Id.

n350 See id.

n351 Id.

n352 Les Kennedy, A Small Town, A Rapist At Large. . .600 Men Called For DNA
Tests, SMH (Apr. 6, 2000), available at
wysiwyg://59/http://www.smh.com.au/news/0004/06/pageone/pageone10.html. The
DNA database legislation was passed through the Senate in March, 2001.
Shortly thereafter in April, 2001, MP Peter Lindsay recommended mandatory
DNA samples to be taken from all Australians at birth and anyone who chooses
to immigrate to Australia as a condition of entry to the country. Take DNA
at Birth: Politician, AUSTRAILIANIT.COM.AU (Apr. 25, 2001), at
wysiwyg://26/http://news.com.au:80...ge/0,4057,1932042%255E1702,00.html.

n353 Id.

n354 Id.

n355 Christina Ho, Libertarians Cry Foul at DNA Tests for Rape
Investigation, SMH (Apr. 10, 2000), available at
wysiwyg://61/http://www.smh.com.au:80/news/0004/10/text/national01.html.

n356 Puplick, supra note 340.

n357 Id.

n358 Id.

n359 See id.

n360 McBride, supra note 332.

n361 See id.

n362 See id.

n363 See id.

n364 Id.

n365 ESR, The DNA Databank, at
http://www.esr.cri.nz/features/databank/index.html (last visited Apr. 19,
2000).

n366 Id.

n367 Id.

n368 Id.

n369 Id.

n370 ESR, supra note 365.

n371 See McBride, supra note 332.

n372 See Office of the Privacy Commissioner, Reports on Proposed
Legislation, at
http://privacy.org.nz/search97cgi/s97_c...y%26ResultStart%3D1%26ResultCount%3D25&.html
(last visited Apr. 14, 2000).

n373 Id.

n374 Id.

n375 Id.

n376 McBride, supra note 332.

n377 See id.

n378 DNA Tests Now Mandatory for Sex Offenders, CHINA NEWS, Jan. 16, 1999,
available at 1999 WL 7538992.

n379 Id.

n380 Id.

n381 Id.

n382 See id.

n383 DNA Tests Now Mandatory for Sex Offenders, supra note 378.

n384 Id.

n385 Id.

n386 Id.

n387 See Parwani, supra note 332.

n388 Kang-Chung, supra note 120.

n389 Privacy Chief to Check DNA Sample Bill, HONG KONG STANDARD, Feb. 10,
1999, available at 1999 WL 5640593.

n390 Parwani, supra note 332.

n391 See Kang-Chung, supra note 120.

n392 See id.

n393 See id.

n394 See Parwani, supra note 332.

n395 See id.

n396 See id.

n397 Privacy Chief to Check DNA Sample Bill, supra note 389.

n398 Honorable Laurie Robinson, Address at The 12th International Congress
on Criminology (Aug. 28, 1998).

n399 Id.

n400 Id.

n401 Id.

n402 Id.

n403 Robinson, supra note 398.

n404 See Fereday, supra note 289; Sievers, supra note 37.

n405 Fereday, supra note 289.

n406 See, e.g., Tuchman, supra note 42; Hibbert, supra note 49, at 769;
Smith, supra note 313.

n407 See, e.g., Tuchman, supra note 42; Hibbert, supra note 49, at 769;
Smith, supra note 313.

n408 See, e.g., Smith, supra note 313; Parwani, supra note 332; Smith, supra
note 251.

n409 See, e.g., Hull, supra note 335; Smith, supra note 313; Robisnon, supra
note 398.

n410 Joseph Altman, Jr., Formal Charges Loom for Man Linked by Police to
Serial Killings, ASSOCIATED PRESS (Apr. 14, 2000),
http://www.foxnews.com/national/041400.html.

n411 Id.

n412 Id.

n413 See Lander, supra note 54.

n414 See Robinson, supra note 398.

n415 See Lander, supra note 54.

n416 See, e.g., Lander, supra note 54; Robinson, supra note 398; Higgins,
supra note 42, at 64-64.

n417 See Tuchman, supra note 42; Willing, supra note 120.

n418 See Tuchman, supra note 42; Willing, supra note 120.

n419 See Willing, supra note 120.

n420 See id.

n421 See id.; Lander, supra note 54.

n422 See Zeigler, supra note 330; Willing, supra note 120.

n423 See Lander, supra note 54.

n424 See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 593-94 (1993); Frye v.
United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

n425 See Daubert, 509 U.S. at 595.

n426 See, e.g., Hibbert, supra note 49, at 776-81; Smith, supra note 313;
Parwani, supra note 332.

n427 See, e.g., Hibbert, supra note 49, at 776-81; Smith, supra note 313;
Parwani, supra note 332.

n428 See, e.g., Hibbert, supra note 49, at 776-81; Smith, supra note 313;
Parwani, supra note 332.

n429 See, e.g., Hibbert, supra note 49, at 776-81; Smith, supra note 313;
Parwani, supra note 332.

n430 See, e.g., Hibbert, supra note 49, at 776-81; Smith, supra note 313;
Parwani, supra note 332.

n431 See Smith, supra note 313.

n432 See Puplick, supra note 340.

n433 See Bowser, supra note 110.

n434 See Fereday, supra note 289; Smith, supra note 313.

n435 See Smith, supra note 313; Hamblett, supra note 199.

n436 See Fereday, supra note 289.

n437 See Zeigler, supra note 330.

n438 See Fereday, supra note 289; Smith, supra note 313.

n439 See Fereday, supra note 289.

n440 See Smith, supra note 313; Privacy Chief to Check DNA Sample Bill,
supra note 389.

n441 See Smith, supra note 313.

n442 See id.

n443 See Fereday, supra note 289.

n444 See id.

n445 See Smith, supra note 313.

n446 See Willing, supra note 120; Lander, supra note 54.

n447 See Willing, supra note 120; Lander, supra note 54.

n448 See Willing, supra note 120; Lander, supra note 54.

n449 See Willing, supra note 120.

n450 See Lander, supra note 54.

n451 See Puplick, supra note 340.

n452 See id.

n453 See Bowser, supra note 110.