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                            LexisNexisª Academic

 Copyright (c) 2001 Publications Council of the College of William and Mary
                   William & Mary Bill of Rights Journal

                                April, 2001

                      9 Wm. & Mary Bill of Rts. J. 645

LENGTH: 15405 words

NOTE: PERSONAL DOES NOT ALWAYS EQUAL "PRIVATE": THE CONSTITUTIONALITY OF
REQUIRING DNA SAMPLES FROM CONVICTED FELONS AND ARRESTEES

Martha L. Lawson

SUMMARY:
  ... State statutes delineate which crimes trigger the requirement for
individuals to provide a biological sample to be used in the creation of a
DNA profile for inclusion in a DNA database. ... Any time one of these
substances is left at a crime scene, or on any piece of evidence connected
with the crime, it is possible that DNA matching could be used to link the
crime sample to a suspect. ... For example, the safety concerns of running a
railroad have qualified as a special need allowing for drug testing of
railroad employees, despite the intrusion on an individual. ... The
intrusion upon the individual must be weighed against the government's
interest in including the DNA sample in the database. ... Before his release
from prison in 1992, a biological sample was taken from him, and his DNA
fingerprint was entered into Virginia's DNA database. ... Once a sample is
taken for investigative purposes, the additional intrusion in maintaining
the DNA fingerprint in a database is minimal. ... States should allow
fingerprints collected from arrestees to be included in their databases
because it makes the database a far more valuable tool for law enforcement.
... The government's interest-and for that matter the arrestee's interest-in
achieving justice, whether by conviction or exoneration, far outweighs the
minimal intrusion of obtaining and maintaining a DNA fingerprint. ...

In the past couple of decades, the use of DNA testing has become a major
debate in criminal law. Many Americans have called for regular use of DNA
testing in criminal cases, particularly in the aftermath of the O.J. Simpson
murder trial. While these tests can potentially help better ensure justice,
conducting DNA tests raises fundamental personal privacy concerns. This Note
analyzes the development of DNA testing throughout the United States, giving
a historical account of how the courts and local police departments have
dealt with this testing. Finally, the Note argues that the government's
interest in mandatory testing of all those arrested outweighs individuals'
privacy interests, therefore making DNA "fingerprints" a substitute for
traditional fingerprints.

TEXT:
 [*645]

Introduction

Since the mid-1980s, police have been using analysis of deoxyribonucleic
acid (DNA) in criminal investigations to match evidence from crime scenes
with suspects. n1 Over the last several years, police have gained a new
weapon in the fight against crime: DNA databases. Using a database of
previously identified and analyzed DNA samples, police can search for a
match to a sample found at a crime scene and identify or exclude suspects.
Police can also use the databases to match evidence found at different crime
scenes, thereby establishing links between crimes, which in turn can assist
in identifying or ruling out suspects.

Until recently, the entries in DNA databases were created exclusively from
samples found at crime scenes and samples collected from people previously
convicted of particular violent crimes, typically rape and murder. n2 State
statutes delineate which crimes trigger the requirement for individuals to
provide a biological sample to be used in the creation of a DNA profile for
inclusion in a DNA database.

Recently, several states have begun to require DNA samples from people
convicted of non-violent offenses as well as violent offenses. Commentators
and prisoners have raised challenges, based on the Fourth Amendment to the
United  [*646]  States Constitution, n3 to both the concept of DNA databases
and to the requirement for non-violent offenders to provide samples. Courts,
however, have repeatedly upheld the constitutionality of these statutes. n4

Now, there is a movement toward requiring DNA samples from any person
arrested for a crime, whether or not the person is convicted of the crime.
This presents new concerns and requires a careful examination of the
constitutionality of these requirements under the Fourth Amendment's
prohibition against unreasonable searches and seizures.

A thorough analysis of court decisions regarding DNA databases demonstrates
that mandatory testing of those arrested is constitutional if the
government's interest in obtaining the sample outweighs the individual's
privacy interest. n5 This Note concludes that this test is satisfied, and
that DNA fingerprints (as distinguished from an entire DNA sample) should be
viewed as an identifier, no different from traditional fingerprints.

I. Background

A. What Is DNA?

Deoxyribonucleic acid (DNA) is the genetic code that dictates the physical
characteristics of all living things. n6 DNA is essentially a chain, made up
of matched pairs of amino acids, which exists in every cell of every living
thing. n7 These chains are organized in different patterns in different
species and even in different individuals within each species. n8

The genetic code created by DNA is unique in every individual, with the
exception of identical twins, who share the same genetic makeup. n9
Furthermore, the  [*647]  DNA in each individual is the same in every cell
of that individual. n10

Different portions of a person's DNA create a code that dictates the
physical characteristics of that individual. n11 Therefore, while an
individual's genetic code, in its entirety, is unique to that person,
individual segments may be the same in different people. n12 For example,
the sequence that codes for eye color will be the same in two people with
the same color eyes. This also means that the DNA of members of the same
family, ethnic, or racial group will tend to share more similarities than
with those in other populations. n13

B. What Is a DNA Fingerprint?

Scientists have been successful in identifying which portions of the DNA
establish the genetic code for many different physical characteristics. n14
Even so, up to ninety-five percent of the long string of code housed in DNA
serves no known purpose. n15 This "mysterious, non-functioning genetic
material" n16 has been dubbed "junk" DNA. n17

In the mid-1980s, scientists began to discover new methods of examining DNA
and recognizing patterns in the genetic code. n18 In 1985, an English
scientist named Alec Jeffreys determined that sequences within the "junk"
DNA repeated themselves a different number of times in different people. n19
These sequences, and their pattern of repetition, appear to vary randomly
across the population. n20

This discovery of unique patterns in "junk" DNA led scientists to develop
techniques known as DNA typing, or DNA fingerprinting. n21 These techniques,
in turn, allowed scientists to compare the DNA from two biological samples
to determine whether the samples came from the same individual or from
different individuals. n22

 [*648]

Today, multiple techniques for matching DNA from different samples exist,
n23 but these all have certain similarities. Matching is done by comparing
small sections of the genetic code called markers. n24 These markers are
tested one at a time until an inconsistency is found (indicating that the
two samples are not from the same individual) or until a match is declared
based on the extremely low probability of two individuals sharing the same
characteristics. n25

C. The Use of DNA in Criminal Investigations

The likely impact of DNA fingerprinting on law enforcement was quickly
recognized and widely touted. n26 DNA can be extracted from a wide variety
of biological sources, including blood, saliva, hair follicles, semen, tooth
pulp, or bone marrow. n27 Any time one of these substances is left at a
crime scene, or on any piece of evidence connected with the crime, it is
possible that DNA matching could be used to link the crime sample to a
suspect. n28

Quite simply, DNA provides investigators with important clues in cases that
initially seem to provide no leads. For example, DNA extracted and analyzed
from the saliva used to seal an envelope was used to link a suspect to the
1993 bombing of the World Trade Center. n29 Similarly, Illinois State Police
have reportedly been able to extract DNA from the remnants of a chicken
dinner eaten by the person who later killed seven people during the
commission of a robbery at a fast food  [*649]  restaurant. n30
Investigators are now hoping to find a match to that sample by searching DNA
databases throughout the country. n31

The use of DNA in criminal investigations was pioneered in England during
the 1986-87 investigation of two related rapes. n32 The use of DNA evidence
in the United States followed quickly during a rape prosecution in Florida.
n33

D. The Development of DNA Databases

Just as the use of DNA fingerprinting in criminal investigations began in
England, the use of DNA databases was first employed in that country. The
British government has established a DNA database that now contains over
360,000 entries, and has led to 28,000 matches between crime scenes and
suspects, as well as 6,000 links between crime scenes. n34 According to some
estimates, the British DNA database helps to solve about 500 crimes each
week. n35

In Britain, samples have been taken from all persons charged with a
"recordable offence" since 1995. n36 Eventually the British database is
expected to include one-third of all English men between the ages of sixteen
and thirty. n37

In the United States, federal law authorizes the Federal Bureau of
Investigation (FBI) to create and maintain an index of DNA identification
information. n38 The law authorizes the federal DNA database to include DNA
records of persons convicted of crimes, analyses of DNA samples recovered
from crime scenes, and analyses of DNA samples recovered from unidentified
human remains. n39

The federal database, known as the Combined DNA Information System (CODIS)
has been operational since October 1998. n40 At that time, the database
included more than 250,000 DNA profiles, n41 and it has been used to find
over 400  [*650]  matches with samples from crime scenes. n42 The federal
database is largely a conglomeration of DNA databases from the states. The
federal database, however, has been limited to convicted felons, whether
convicted of violent or nonviolent crimes.

All fifty states currently allow for DNA testing of designated sets of
convicted offenders. n43 Most state laws require samples only from a narrow
group of felons, typically those convicted of homicide and sexual assault.
n44 In most states, giving a blood sample for analysis is a condition to
parole or release. n45

There is a growing movement toward increasing the number of DNA  [*651]
fingerprints incorporated into DNA databases. n46 At least six states now
allow for DNA testing of all convicted felons, whether violent or
non-violent offenders. n47 States that include non-violent offenders in
their databases defend that decision based on the results. Virginia reports
that in sixty percent of the matches achieved from the Commonwealth's
database the original sample was taken pursuant to an arrest for a property
crime. n48 In Florida, the figure is fifty-two percent. n49

On September 1, 1999, the most inclusive DNA database enabling statute to
date went into effect in Louisiana. n50 The Louisiana law allows for the
mandatory collection of DNA samples from any person arrested for felony sex
offenses or other specified offenses. n51 Under the Louisiana law, DNA
samples are taken from specified arrestees at the same time that they are
fingerprinted and booked. n52

Other states are already begining to pass legislation similar to the
Louisiana statute. Kentucky and Mississippi have passed laws that apply to
those arrested for sexual felony offenses. n53 Connecticut lawmakers are
debating legislation requiring DNA sampling of all arrestees. n54 In New
York, Governor George Pataki has proposed expanding his state's DNA database
in the same manner. n55 Other states undoubtedly will consider similar
changes because, as one member of the Connecticut legislature stated: "This
is one of the many new issues we have to confront given the technological
age we're in." n56

Not surprisingly, many law enforcement officials and prosecutors have
supported broadening the collection of DNA samples that are included in DNA
databases. The International Association of Chiefs of Police has announced
that the  [*652]  organization supports the passage of federal legislation
to require that DNA samples be taken from every person arrested in
connection with any crime, whether a petty theft or a murder. n57 The
Commissioner of the New York City Police Department has proposed that DNA be
collected from every arrested person, regardless of the crime charged. n58
Others have gone to the extreme of suggesting that DNA samples be taken from
every child at birth. n59

On the other side of the spectrum, the Associate Director of the American
Civil Liberties Union (ACLU) condemned the idea of requiring DNA samples
from arrestees, commenting: "It's indeed a brave new world. We're talking
about people who are accused of a crime, but they have not yet had their day
in court. A sizable number of them will never be convicted." n60 The ACLU
has announced plans to challenge the constitutionality of the Louisiana law
if and when it is implemented. n61

II. Analysis

DNA analysis has become a powerful tool in solving crimes, both in obtaining
convictions and in exonerating suspects. n62 In order to optimize the
effectiveness of DNA databases as a tool for law enforcement, databases
should be inclusive to the fullest extent permissible under the
Constitution. n63

The basic Fourth Amendment test for whether a search and seizure is
reasonable was outlined by the Supreme Court in Katz v. United States. n64
Under Katz, a search is defined as "any governmental intrusion into an area
where an individual has a reasonable expectation of privacy." n65

The Supreme Court has made clear that a blood test is considered to be a
search, and therefore subject to the limitations of the Fourth Amendment.
n66 The Court has held further that analysis of the biological samples
constitutes a separate search, beyond the collection of the sample. n67
Whether a blood test and analysis, as a search, is reasonable under the
Fourth Amendment is determined by balancing the  [*653]  individual's
privacy interest against the government's interest in conducting the search.
n68

In the first case to consider the constitutionality of mandatory DNA
sampling for nonviolent offenders, the Fourth Circuit ruled that the Fourth
Amendment is not violated when blood samples are taken from convicted felons
in order to analyze the felons' DNA for inclusion in a state police
database. n69 Similarly, both federal and state courts in Washington have
also determined that states may require convicted felons to submit to blood
tests in order to include their DNA fingerprints in state databases. n70
Other courts have reached similar conclusions. n71 Despite agreement on the
basic standard that applies to mandatory DNA sampling, and continued
judicial support for DNA databases, courts have varied in their
interpretation of the standard to be applied in determining the
constitutionality of DNA fingerprinting of prisoners. n72

A. Prisoners Have a Lower Expectation of Privacy

The Supreme Court's rulings on searches of prisoners must be factored into
the Fourth Amendment analysis of this issue. The Court has held repeatedly
that prisoners have a much lower expectation of privacy than the general
population. For example, the Court has ruled that routine shakedowns of
prisoners are reasonable because a prisoner has no reasonable expectation of
privacy in his or her cell. n73 The Court has also held that routine,
visual, body cavity searches of prisoners are not unreasonable. n74

Prisoners may be convicted offenders or pretrial detainees. The Court's
rulings on the reduced rights of prisoners do not create a distinction
between the two. The  [*654]  primary distinction drawn between convicted
offenders and pretrial detainees is that, as part of a conviction,
punishment may be imposed.

Constitutional limitations on punishments are imposed by the Eighth
Amendment's prohibition against cruel and unusual punishment. n75 In light
of the punitive nature of incarceration for those convicted of crimes,
actions imposed upon prisoners who have been convicted of a crime are
typically judged under the standards of the Eighth Amendment. n76

In contrast, the Due Process Clause n77 controls the analysis of actions
imposed upon pretrial detainees. n78 In order to determine "whether a
particular restriction imposed on a pretrial detainee comports with due
process, a court must determine whether . . . it is reasonably related to a
legitimate, nonpunitive, governmental purpose." n79

In the case of mandatory DNA sampling, the legitimate governmental purposes
are criminal investigation and public safety. The sample is not taken for
punitive purposes. n80 As a result, the Due Process Clause is not violated.
The only question remaining, therefore, is whether the search is reasonable
under the Fourth Amendment.

Some challenges to mandatory DNA testing have been denied entirely on the
theory that prisoners have a lower expectation of privacy. n81 In other
cases, outlined below, it has been considered simply as a factor within the
analysis.

B. Special Needs Allow for Greater Governmental Intrusion

Another line of cases has indicated that the government has greater
authority to conduct searches when there is a "special need." Special needs
are considered  [*655]  when evaluating the governmental interest at stake.

For example, the safety concerns of running a railroad have qualified as a
special need allowing for drug testing of railroad employees, despite the
intrusion on an individual. n82 Likewise, the special needs involved in
running a school have been deemed sufficient to justify a diminished
expectation of privacy for students. n83

The special needs of law enforcement have also been recognized as providing
adequate justification for greater intrusions upon individual privacy. n84
Similarly, the special needs of safely operating a prison have been found to
allow for mandatory, non-consensual testing of prisoners for AIDS. n85

The Fourth Circuit expressly rejected the notion that special needs beyond
the general needs of law enforcement must be demonstrated to allow certain
searches, arguing that the public safety needs of law enforcement were
sufficient. n86 Nevertheless, other courts have insisted upon a stricter
standard for law enforcement than for other governmental actors, requiring
that the government demonstrate a special need beyond the general needs of
law enforcement. n87

Even applying this stricter standard for the special needs test, however,
the Supreme Court of Washington ruled that the state's statute requiring
involuntary DNA tests of felons, in order to establish a DNA database for
use in future prosecution of recidivist acts, did not violate the Fourth
Amendment's prohibition on unreasonable search and seizure. n88 Two more
recent cases also have upheld state statutes authorizing the collection of
DNA samples from convicted felons.

In Roe v. Marcotte, n89 the Second Circuit ruled that a Connecticut man
jailed for a sexual offense could be compelled to provide a blood sample.
n90 While the Fourth Circuit's decision in Jones v. Murray relied on the
diminished privacy rights of convicted persons, n91 the Second Circuit
relied upon the special needs exception and ruled that the governmental
interest in law enforcement outweighed the intrusion on individual privacy.
n92

Similarly, the Massachusetts Supreme Judicial Court recently upheld the
 [*656]  constitutionality of its state's DNA database in Landry v. Attorney
General. n93 The Massachusetts court, like the Second Circuit, ruled that
"the high government interest in a particularly reliable form of
identification outweighs the minimal intrusion of a pinprick." n94

To date, all of the case law on DNA databases has involved people already
convicted of a crime; however, the special needs analysis can be extended to
the collection of DNA samples from arrestees. The Massachusetts court in
Landry compared the creation of a DNA fingerprint to the taking and storing
of fingerprints, photographs, and other criminal records. n95 Meanwhile, the
Second Circuit in Roe v. Marcotte identified some of the special needs that
supported the collection of DNA fingerprints, including their usefulness in
criminal investigation and the reliability of identification based on such
DNA collections. n96 These same factors should apply to the collection of
samples from arrestees.

Some commentators have expressed additional concern over the lack of a
requirement for individualized suspicion in requirements for DNA testing of
prisoners and arrestees. n97 However, the case law makes clear that, even
without a particularized suspicion, a strong government interest can
outweigh some intrusion on individual privacy. n98

C. Applying the Test

The United States Supreme Court has stated that in order to determine
whether a search is reasonable, a court "must consider the scope of the
particularized intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it was conducted."
n99 This standard must be applied to each component of the process in
collecting a DNA sample for inclusion in a DNA database.

 [*657]

1. The Intrusion Upon Those Sampled

First, the Fourth Amendment standard must be applied to the actual taking of
the blood sample. While not yet convicted, when arrestees are tested they
are prisoners or pretrial detainees, and as such, their reasonable
expectation of privacy is lowered. n100 Furthermore, the taking of blood for
testing is considered a relatively minor intrusion. n101

Next, the intrusion caused by the analysis of the sample must be evaluated.
The DNA fingerprinting of a blood sample is considered analogous to the
analysis of a dermatoglyphic fingerprint. n102 The DNA fingerprint maps
genes and combinations of genes that do not code for any genetic trait. n103
Even critics of DNA databases have conceded as much. n104 Therefore, the
intrusion of analyzing the DNA sample is no more significant than the
analysis of a thumbprint.

Moreover, even in the case of arrestees, police will usually collect and
analyze DNA samples as a routine part of the investigation. n105 In fact,
police are being trained to look for and rely upon DNA evidence from a crime
scene whenever possible, both because of its accuracy and because of
potential problems with other evidence. n106

Next, the storage of the DNA fingerprint must be considered. This storage
creates no further intrusion on the individual and is comparable to the
storage of photographs or fingerprints. Traditional fingerprint databases
store records from a wide variety of sources, including federal employees
and the military. Therefore, a significant proportion of the records are not
those of convicted offenders. While some commentators have worried that
information in DNA databases simply invites unauthorized use or misuse by
genetic researchers and others, n107 this fear is misplaced because the data
stored in DNA databases are, by design, not helpful for  [*658]  genetic
research. n108

Finally, the intrusion created by the storage of the actual blood sample
must be considered. Many commentators have found the storage of the blood
sample to be problematic as a continuing, and potentially greater, violation
of privacy. n109 Concerns over the storage of the sample are based largely
on the potential for the misuse of the sample to access genetic information
regarding the health of the individual.

2. The Government's Interest

The intrusion upon the individual must be weighed against the government's
interest in including the DNA sample in the database. The government's
interest in collecting the sample, analyzing it, and storing the DNA
fingerprint is threefold. First, the database can be used to solve past
cases which might otherwise remain unsolved. Second, the database can be
used to solve future crimes. Third, the database can be used to exonerate
suspects and those wrongly incarcerated. n110

Police are now looking to DNA databases to provide new leads in "old and
cold" cases. n111 Many cases that have been languishing in police files for
years with few leads and no real suspects could be solved through simple
searches of DNA databases.

For example, based on a search of its DNA database, the state of Florida
arrested Anthony Leonard Orick in June 1999 for six sexual assaults in
Jacksonville between 1995 and 1998. n112 Arrests in older cases are not only
rewarding for the police who investigate them, n113 but of utmost importance
to the victims of these crimes. Carol Seivers' daughter was murdered in
1994, and in 1996 a match from a DNA database search led to the conviction
of Shermaine Jackson for the crime. n114 As Seivers stated: "There are many,
many parents and loved ones who are waiting to hear a knock on the door or
the phone ringing, saying, 'We've got that person.'  [*659]  We are so
thankful to God that the technology is available." n115 Debbie Smith was
raped outside her home in 1989, but police were unable to find any leads on
who the attacker may have been. n116 Finally, in 1995, a DNA database search
identified the attacker as a man who has since been arrested for unrelated
crimes. Smith stated: "[DNA] gave me my life back. I don't have to live in
fear anymore." n117

DNA databases can also be used to solve future crimes. Jackie Crumity served
time for a 1979 rape. n118 Before his release from prison in 1992, a
biological sample was taken from him, and his DNA fingerprint was entered
into Virginia's DNA database. n119 Four months later, a woman was brutally
attacked and raped in her home. n120 Police had no physical description of
the attacker and no fingerprints, but a small sample of semen found at the
scene was matched to a sample in the DNA database. n121 That sample provided
police with a suspect: Jackie Crumity. n122 Crumity is now serving a
sentence of life plus thirty years. n123

DNA databases can also serve to exclude and exonerate suspects. n124 The use
of DNA database evidence early in an investigation can exclude suspects and
therefore save time and money "by focusing in more fruitful directions."
n125 Although very little, if any, press emerges when suspects are
exonerated early on in the investigation, it is a frequent occurrence when
DNA testing is used. FBI statistics indicate that in each year since 1989,
the primary suspect in twenty-five percent of sexual assault cases has been
excluded based on forensic DNA testing. n126 State crime laboratories have
estimated that thirty percent of the DNA tests conducted result in negative
matches, exonerating innocent suspects. n127

DNA testing and databases can also be used to clear individuals currently
under suspicion by finding links to other crime scenes. Therefore, even if
police are unable to identify a perpetrator, the information can be used to
combine leads from several cases, which may in turn exclude certain
suspects.

 [*660]

Defense attorneys have been supportive of DNA databases because of their
power to exclude suspects. n128 While defense attorneys may attack DNA
evidence and DNA databases in court, "[i]t is interesting to observe how
quickly some DNA evidence opponents embrace the science when it benefits
certain defendants' interests but how defensive they become when the
evidence points toward other defendants." n129

DNA databases have also been used to exonerate innocent people who have been
incarcerated for crimes. n130 Keith Brown was arrested for rape in 1991 and
sentenced to thirty-five years in prison. n131 Yet in 1997, DNA from the
crime scene was matched to a man who had served prison time based on a
conviction for drugs and aggravated assault. n132 The recently released man
had been required to provide a blood sample as a condition prior to his
release. n133

Another case out of Oklahoma demonstrates the value of DNA databases in
overcoming problems of false testimony. In 1988, two men were convicted of
assaulting and strangling a young woman, largely based on the testimony of
Glen Gore. n134 Gore was later arrested on unrelated charges of burglary,
kidnapping, and shooting. n135 The DNA sample he was required to provide
while in jail was entered into the state's database and later matched to the
crime scene in the original case, exonerating the two men he himself had
helped to wrongly convict. n136

DNA databases also have the capacity to solve future crimes. A study done by
the Commonwealth of Virginia showed that of all persons released from
prisons in eleven states in 1983, an estimated 62.5% were arrested for a
felony or serious misdemeanor within three years, and an estimated 22.7% of
all prisoners were rearrested for a violent offense within three years of
their release. n137

 [*661]

Ninety-seven percent of cases in which DNA is used involve murder or rape,
n138 the most violent of crimes. Yet because of the circumstances of these
particular crimes, victims may not be able to provide strong, reliable
descriptions and identifications of their attackers. In cases of murder, the
victim is unable to provide any clues. In cases of rape, victims are often
too traumatized to provide accurate descriptions.

As stated by Paul Ebert, the Commonwealth Attorney for Prince William
County, Virginia, following the conviction of Jackie Crumity: "It shows the
value of DNA technology [in sexual assault cases]. They're awfully hard to
prove. [The victims are] traumatized witnesses. Their testimony is subject
to attack. Oftentimes [the crime] happens at night." n139

The increased use of DNA evidence would lessen the dependence on eyewitness
testimony and be far more reliable. n140 Studies have shown that eyewitness
testimony is particularly unreliable. n141 In a review of twenty-eight cases
of people incorrectly convicted of sexual assault and later exonerated by
DNA evidence, the Department of Justice determined that every case, except
the six homicides included in the study, involved significant reliance on
eyewitness testimony of the victim. n142

The stories of Clyde Charles and John Davis vividly demonstrate the
superiority of DNA identification over eyewitness identification. Clyde
Charles was exonerated from a 1981 rape after a DNA test identified Charles'
brother as the rapist. n143 The two brothers, though not twins, had nearly
identical facial features-so similar that a family friend who testified at
the trial misidentified a photo of one brother at the trial. n144

Even seemingly "open and shut" cases of eyewitness identification have
proven to be incorrect. Carol Sanders identified John Davis, her
ex-boyfriend whom she had known for four years, as the man who broke into
her home, slipped a pillow case over her face, then brutally beat and raped
her. n145 While police were cautious,  [*662]  Sanders was adamant that she
had gotten a clear view of her attacker. n146 Furthermore, Davis had a long
history of abusive acts against Sanders n147 and his only defense was his
mother's testimony that he had been at home asleep at the time of the
attack. n148 The case looked to be an easy one, yet DNA tests demonstrated
that someone other than Davis was actually the perpetrator. n149 The
attacker turned out to be another acquaintance of Sanders, a man who looked
remarkably like Davis. n150

Solving particularly violent crimes such as murder and rape are typically
top priority for police and the public, and DNA databases are particularly
valuable tools in these cases. n151 As explained by Carl Selavka, director
of the Massachusetts State Police crime lab: "In general, a principle of
forensic science is that the more force is used in the commission of a
crime, the more likely it is that a significant detectable amount of DNA
will be transferred among the suspects and victims." n152

Moreover, the early use of DNA evidence and DNA databases can help to
overcome a rush to judgment in these most violent cases, which are typically
high profile cases. Its use not only assists law enforcement, but protects
innocent people from enduring long investigations. As expressed by a former
prosecutor: "The greatest friend of the falsely accused is DNA testing at
the beginning of a criminal investigation; it clears far more people than
post-conviction tests. Early genetic testing can spare suspects months and
years spent in jail and under suspicion by their communities." n153

A study conducted by the United States Department of Justice helps to
demonstrate another way in which the use of DNA databases can help protect
individuals by excluding innocent people early on in the investigatory
process. In fifteen of the twenty-six cases, the later-exonerated defendant
was known to the police prior to their arrest, usually because of a criminal
record. n154

This technique of "rounding up the usual suspects" is common in criminal
 [*663]  investigations, largely because of high recidivism rates, n155 but
subjects those with previous police involvement to closer scrutiny. By using
a DNA database search early on, these people, if innocent, will be cleared
from suspicion and spared the harassment of further investigation.
Furthermore, the police will save money and valuable time by pointing their
investigation in better directions.

The existence of DNA evidence also provides police investigators with a way
to secure a conviction that previously would have been difficult or
impossible without incriminating statements from the accused. Police
interrogations of suspects have been criticized for their deceit and other
tactics. n156 Scholars have expressed concern over the reliance on
confessions and the consequent risks of false confessions. n157 On the other
hand, the inability to secure a confession can prevent conviction or can
lead to conviction of an innocent person. n158 The utilization of DNA
evidence may allow police to re-examine their interrogation tactics, making
the confession far less of a necessity for conviction and therefore helping
to prevent overreaching by law enforcement. n159

3. The Controversy Over DNA Use

In the news and celebrated trials, there has been considerable controversy
over the use and accuracy of DNA fingerprints. n160 The controversy,
however, is not over the science of DNA fingerprinting and whether DNA
serves as a unique identifier. n161 Rather, the current controversy stems
from debates over the accuracy and competence of testing laboratories and
over how the evidence of a match from  [*664]  a DNA database should be used
in criminal prosecution. n162 Debates over the courtroom presentation of DNA
evidence have focused on the calculations of probability and how the
evidence is presented by expert witnesses. n163

The first major case to challenge the accuracy of DNA evidence was a 1987
murder case in New York. n164 Jose Castro was charged in the stabbing death
of a woman and her two-year old daughter. n165 Attorneys Peter Neufeld and
Barry Scheck challenged the DNA analysis of a speck of blood found on the
defendant's watch. n166 The defense attorneys argued that the DNA technology
was too uncertain and that the lab work in the case was sloppy. n167 The
defense team was successful in excluding evidence linking the blood from the
watch to the victim. n168

While the defense seemingly won the battle in the Castro case, the results
of the case may actually support the use of DNA evidence. Defense attorneys
argue that the power of DNA evidence is so strong that unless the technology
can be proven to a perfection, it should not be allowed as evidence. The
Castro case demonstrates that if the circumstances warrant, the defense can
successfully argue for the exclusion of the evidence on this basis. n169 As
stated by Castro's attorney Peter Neufeld: "The attitude up to that point
had been that DNA fingerprinting was infallible. Juries were awed. As one
juror put it, 'You can't argue with science.' We decided to show you could."
n170 These days, a defense attorney cannot only argue with science, but as
one supporter of DNA fingerprinting argued, "The chances of an innocent
person being implicated are next to nil, but the chances of a guilty person
becoming falsely exonerated are reasonably high." n171

The Castro case also demonstrates that challenges to DNA evidence can be
successful even if the evidence is right. n172 Even after the successful
exclusion of the DNA evidence linking Castro to the victims, Castro pled
guilty to the crimes charged. n173 Castro further admitted that the blood on
his watch had been that of  [*665]  the victim. n174

The third interesting point illustrated by the Castro case is how defense
attorneys' opinions of DNA evidence change depending on whether the evidence
is being used to incriminate or exculpate. n175 For example, attorney Barry
Scheck helped to successfully challenge DNA evidence in the Castro case and
again in the O.J. Simpson case. Yet Scheck has also led the effort to use
DNA evidence to exonerate those falsely imprisoned. n176

The fact that criminal defense lawyers are now calling for greater
utilization of DNA analysis n177 demonstrates the acceptance of its general
accuracy and value. n178 Concerns now have shifted to ensuring proper,
accurate DNA analysis in individual cases.

The strength of DNA evidence is also demonstrated by the effect it has had
on courtroom strategy in cases where it is used. "The focus shifts from
whether it is the defendant's blood or semen at the crime scene to how it
got there." n179 Defendants are now more likely to argue that any sexual
contact was consensual or that they were framed, rather than to deny the
presence of their semen or blood. n180

Some have argued that the privacy of DNA profiles is "inherently personal,
intimate, and sensitive;" n181 however, the information actually analyzed
and stored is no more "intimate" than a photograph or a fingerprint in that
it is merely used as an identifier. Only if the sample is used incorrectly
does intimate information of this type warrant the concerns asserted by
critics. Yet this is no different from many means of identification used in
investigation. A person's social security number may be used to identify and
to investigate them. That same number can provide sensitive information
about a person who is unrelated to the criminal investigation. While there
is a potential for misuse, one should not presume abuse  [*666]  will be the
norm.

The Virginia DNA database law provides criminal penalties for the
unauthorized dissemination of information contained in the DNA database and
for the receipt, use, or attempted use of such information knowing that the
dissemination, receipt, or use is for a purpose other than as authorized by
law. n182 Many other state DNA database statutes contain similar provisions,
n183 and these help to alleviate concerns about their use. n184 The
Massachusetts Supreme Judicial Court cited similar provisions in the
Massachusetts law in ruling that the potential for misuse of the data was
merely speculative. n185

"Inmates who give blood or saliva samples for DNA identification analysis
should have the expectation that the analysis be restricted to law
enforcement personnel for use in the pursuit of legitimate law enforcement
objectives." n186 Even without this type of safeguard written explicitly
into the law, a state could apply its statute protecting against the
disclosure of public records to information in the DNA database. n187

On the federal level, the DNA Identification Act of 1994 provides that the
results of DNA tests performed for a federal law enforcement agency may be
disclosed only to criminal justice agencies for law enforcement
identification purposes, in a judicial proceeding, for criminal defense
purposes, for a population statistic database, for identification and
research protocol development, or for quality control purposes. n188

The FBI conditions participation in the national database on a state's
adherence to the privacy safeguards set up by Congress and the FBI. n189 The
federal statute "provides stiff penalties for misuse of genetic
information." n190

Computerized storage of DNA fingerprints presents little or no concern to
security because the information that is stored does not provide any
significant genetic information beyond identity. n191 Furthermore, in the
federal database, stored  [*667]  records are identified only by a code
which must then be compared to another database to match the sample to a
suspect's name and other identifying data.

III. Recommendations

A. DNA fingerprints created in the course of an ordinary investigation
should be entered into DNA databases.

As techniques for extracting and analyzing DNA from crime scene evidence
continue to improve, the use of DNA evidence will only become more common.
As the use of DNA evidence becomes more common, more DNA samples will be
taken from suspects and arrestees as a routine part of criminal
investigation. If samples have been collected as part of the investigation
of a crime, their collection and analysis is based on probable cause and is
therefore constitutionally valid under the Fourth Amendment. Once a sample
is taken for investigative purposes, the additional intrusion in maintaining
the DNA fingerprint in a database is minimal.

B. States should collect DNA samples from arrestees and include DNA
fingerprints analyzed from those samples in their DNA databases.

States should allow fingerprints collected from arrestees to be included in
their databases because it makes the database a far more valuable tool for
law enforcement. The greater the number of DNA fingerprints in the database,
the more certain the statistical probabilities become when a match is made.
n192

Including DNA fingerprints of arrestees in a DNA database can also serve to
protect arrestees who are later acquitted or not prosecuted for whatever
reason. n193 Once a suspect is known to the police based on the
investigation of one crime, the police are often far more likely to suspect
that person in a future crime. Therefore, inclusion in the DNA database can
serve to protect individuals by allowing them to be cleared of suspicion
early on in the investigation. If police know that a suspect is included in
the database, and a match is not found in the database search, then the
investigation must turn to consideration of those beyond "the usual
suspects."

Some state statutes provide that DNA fingerprints will be expunged if a
person is no longer a suspect in the particular case or if the person's
conviction is reversed. n194 In other states, people may request that the
state destroy their DNA samples and DNA fingerprints if they are acquitted
of the crime that originally  [*668]  subjected them to DNA sample
collection. n195 Some commentators recommend that this procedure be adopted
in all states. n196 This, however, could potentially undercut the
protections provided to the person by inclusion in the database, and subject
them to investigation in future cases, particularly if police believe the
suspect's conviction in a previous case was wrongly reversed.

The federal database should also allow for inclusion of DNA fingerprints
collected by states from those arrested for crimes, because the collection
of those DNA fingerprints is constitutional under the Fourth Amendment. The
government's interest-and for that matter the arrestee's interest-in
achieving justice, whether by conviction or exoneration, far outweighs the
minimal intrusion of obtaining and maintaining a DNA fingerprint.

C. Increased funding should be devoted to DNA analysis to alleviate the
backlog of samples awaiting analysis and increase the use of DNA analysis
from crime scene evidence.

While all fifty states are authorized to maintain DNA databases, n197 states
have not sufficiently funded the efforts to establish the databases. In many
states, samples from crime scenes and convicted felons sit in storage
waiting to be analyzed. n198 Nationwide, nearly 500,000 blood samples from
felons await analysis, while samples remain to be taken from more than one
million convicted rapists and murders. n199 The National Commission on the
Future of DNA Evidence has recommended against testing of arrestees, not
because of privacy concerns, but because of cost concerns. n200

State legislatures which have voted to expand DNA databases should be
applauded for their belief in the technology. Even so, the authorization of
DNA databases does little if state legislatures and the federal government
do not provide sufficient funds to implement databases.

 [*669]

D. Biological samples used to create a DNA fingerprint should be preserved
for the near future, although their continued preservation should be
evaluated in the coming years.

The biological samples collected and used to create a DNA fingerprint should
be retained in storage, at least for the near future. n201 At the same time,
the debate over whether these samples should be retained over the long term
should continue.

One of the strongest arguments put forth in support of retaining biological
samples is that DNA technology continues to develop and samples may need to
be reanalyzed to keep up with new technologies. On the other hand, the most
serious privacy concerns about DNA arise because of the retention of the
biological samples.

While the DNA fingerprint contains only codes that serve as personal
identifiers, a complete DNA sample holds much more private information about
the genetic characteristics of the individual. As science develops, not only
techniques for developing DNA fingerprints improve, but so do techniques for
identifying important, and private, genetic information. n202

Currently, the FBI retains only the DNA fingerprint, not the biological
sample. n203 However, most states retain the sample for an indefinite time
period. n204 The American Civil Liberties Union has announced its intention
to push for legislation requiring the destruction of biological samples once
DNA testing is complete. n205

Careful attention must be paid to security of the sample and to
technological discoveries that may change the significance of the privacy
interests at stake. As more precise forms of DNA analysis are developed,
database entries must still be limited to genetic information that is not
useful beyond identification. n206  [*670]  Furthermore, if samples are
misused, the punishment should be severe.

The lack of funding for analysis of collected samples n207 adds to potential
privacy concerns. As long as these samples remain in storage, the potential
for misuse continues to be as significant an issue as the retention of
samples after analysis.

The government's interest in storing the sample is substantial. There is
often a need to retest the sample in order to create evidence for trial or
to allow the defense to test the sample prior to trial. n208 Moreover, new
or improved techniques for analysis and identification may be developed n209
and the sample may need to be re-analyzed using these methods in order to
keep pace with technology. n210

The field of DNA analysis is new and developments are almost constant. n211
However, in time, the science is likely to become more settled. It is
important to continually reconsider the issue of retaining biological
samples. n212

Conclusion

The government's interests in solving crimes, preventing future crimes, and
seeking justice for those victimized and those wrongly accused outweigh the
minimal intrusion of DNA fingerprinting for inclusion in a DNA database. In
time, DNA fingerprints will be thought of the way dermatoglyphic
fingerprints are now viewed. n213 While it is uniquely personal, a DNA
fingerprint is not inherently private.

 [*671]

A DNA fingerprint is merely a physical identifier, no more personal than the
color of a person's eyes or their height. People shed cells every day in
every thing they do. While those cells are unique to the individual they are
no more "private" than the fingerprints left on every thing a person
touches.

Privacy concerns may be triggered by decisions over whether to retain or
destroy biological samples from which DNA fingerprints are analyzed, and
this issue should not be avoided. Even so, the value of DNA as evidence is
so well demonstrated that those on both sides of the privacy issue should be
willing to work out an agreeable solution to the problem of what to do with
biological samples.

The use of DNA fingerprints does not just benefit law enforcement. DNA
evidence does not just benefit those wrongly incarcerated. The effective use
of DNA fingerprints, databases, and evidence benefits justice.

FOOTNOTES:
n1 See generally Joseph Wambaugh, The Blooding (1989) (profiling the
investigation into a 1983 murder in Narborough, England, the world's first
criminal case to be resolved by "genetic fingerprinting").

n2 See infra notes 43-56 and accompanying text.

n3 See U.S. Const. amend. IV. ("The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause . . . .").

n4 See Michael J. Markett, Note, Genetic Diaries: An Analysis of Privacy
Protection in DNA Data Banks, 30 Suffolk L. Rev. 185, 203 (1996) ("While
prisoner suits have routinely challenged DNA data bank statutes on Fourth
Amendment grounds, courts have universally held that such statutes are
constitutional.").

n5 See infra notes 99-159 and accompanying text.

n6 See R. Scott Hawley & Catherine A. Mori, The Human Genome, A User's Guide
3-5 (1999).

n7 See id.

n8 See id.

n9 See Lorne T. Kirby, DNA Fingerprinting: An Introduction, at xv (1990).

n10 See id. at 1.

n11 See Hawley & Mori, supra note 6, at 4.

n12 See Kirby, supra note 9, at 2.

n13 See id. at 3-5.

n14 See Sharon Begley, Decoding the Human Body, Newsweek, Apr. 10, 2000, at
51 (describing The Human Genome Project's efforts to identify the function
of each gene in human DNA).

n15 See William Tucker, DNA Fingerprinting Is Reliable and Accurate, in Is
DNA Fingerprinting Accurate? 123 (1996).

n16 Id.

n17 Id.

n18 See Kirby, supra note 9, at 2.

n19 See Tucker, supra note 15, at 123 (explaining the concept known as
variable number tandem repeats).

n20 See id.

n21 See Kirby, supra note 9, at 2.

n22 See id. at 3.

n23 See id.

n24 See id.

n25 See id.

n26 See People v. Wesley, 533 N.Y.S.2d 643, 644 (Co. Ct. 1988) (touting the
potential of DNA fingerprinting to be the greatest single advance in the
search for truth, conviction of the guilty, and the acquittal of the
innocent since the advent of cross-examination); Ian W. Evett & Bruce S.
Weir, Interpreting DNA Evidence, Statistical Genetics for Forensic
Scientists, at xiii (1998) (touting DNA fingerprinting as the greatest
advance in forensic science since fingerprinting was developed at the turn
of the century); Kirby, supra note 9, at 189 ("DNA analysis will be to the
end of the 20th century what fingerprinting was to the 19th."); Harlan Levy,
And the Blood Cried Out: A Prosecutor's Spellbinding Account of the Power of
DNA 18 (1996) ("I firmly believe now, that DNA analysis can promote a more
just society, both by making punishment of the guilty more likely and by
assuring exoneration of the innocent."); Edward Lewine, Gov's DNA Plan
Rapped as Test Backlog Looms, N.Y. Daily News, Feb. 27, 2000, at 18 ("No one
disputes that DNA analysis is the most important new crime-fighting tool to
come along since the fingerprint.").

n27 See Kirby, supra note 9, at 51.

n28 New techniques for analyzing DNA are currently in development, and could
allow a fingerprint to be developed from smaller biological samples than is
currently possible. See Margaret Zack, New DNA Test Undergoing Court
Challenge, If the Court Accepts the Test as Reliable, It Will Be Used on
Much Smaller Evidence Samples, Minneapolis-St. Paul Star-Tribune, Feb. 8,
2000, at 1B.

n29 See Tucker, supra note 15, at 120.

n30 Chris Fusco & Sandra Del Re, DNA Match Sought in Brown's Case, Sample
Found on Chicken Bone Entered into National Database, Chi. Daily Herald,
Apr. 8, 2000, at 5.

n31 See id.

n32 See Levy, supra note 26, at 26-31; see generally Wambaugh, supra note 1
(chronicling the British investigation).

n33 See Levy, supra note 26, at 17, 31.

n34 See Peter Donnelly & Richard D. Friedman, DNA Database Searches and the
Legal Consumption of Scientific Evidence, 97 Mich. L. Rev. 931, 932 (1999).

n35 See Beef up Funding for Crime Labs, Atlanta J. & Const., Mar. 9, 2000,
at A18; Erin Hallissy & Charlie Goodyear, How DNA Fights Crime, Other States
Make Better Use of Technology, S.F. Chron., Oct. 20, 1999, at A1
[hereinafter How DNA Fights Crime].

n36 Donnelly & Friedman, supra note 34, at 939.

n37 See id. at 940.

n38 See DNA Identification Act of 1994, 42 U.S.C. ¤ 14132(a) (1994).

n39 See id.

n40 See Donnelly & Friedman, supra note 34, at 940.

n41 See id.

n42 See id.

n43 See Ala. Code ¤ 36-18-24 (Supp.1999); Alaska Stat. ¤ 44.41.035 (Michie
1998 & Supp. 1999); Ariz. Rev. Stat. Ann. ¤ 31-281 (West 1996 & Supp. 1999);
Ark. Code Ann. ¤ 12-12-1109 (Michie 1999); Cal. Penal Code ¤ 296.1 (West
1999 & Supp. 2000); Colo. Rev. Stat. ¤ 17-2-201(5)(g) (1999); Conn. Gen.
Stat. ¤ 54-102(g) (1994 & Supp. 1999), repealed and substituted by 1999
Conn. Acts 183, ¤ 11 (Reg. Sess.); Del. Code Ann. tit. 29, ¤ 4713(b) (1997 &
Supp. 1998); Fla. Stat. Ann. ¤ 943.325 (West 1996 & Supp. 2000); Ga. Code
Ann. ¤ 24-4-60 (1995 & Supp. 1999); Haw. Rev. Stat. ¤ 706-603 (1993 & Supp.
1998); Idaho Code ¤ 19-5507 (Michie 1997 & Supp. 1999); 730 Ill. Comp. Stat.
Ann. 5/5-4-3 (West 1997 & Supp. 1999), as amended by 1999 Ill. Laws 528;
Ind. Code ¤ 10-1-9-10 (1999); Iowa Code ¤13.10 (1995 & Supp. 1999); Kan.
Stat. Ann. ¤ 21- 2511 (1995 & Supp. 1999), as amended by 1999 Kan. Sess.
Laws 164 ¤¤ 3, 39; Ky. Rev. Stat. Ann. ¤ 17.170 (Michie 1996 & Supp. 1999);
La. Rev. Stat. Ann. ¤15:609 (West Supp. 2000); Me. Rev. Stat. Ann. tit. 25,
¤ 1574 (West Supp. 1996); Md. Ann. Code art. 88B, ¤12A (1998 & Supp. 1999);
Mass. Ann. Laws ch. 22E, ¤ 3 (Law. Co-op. 1996 & Supp. 2000); Mich. Comp.
Laws Ann. ¤ 750.520m (West 1991 & Supp. 1999); Minn. Stat. ¤ 609.3461 (Supp.
2000); Miss. Code Ann. ¤ 45-33-15(3) (1999 & Supp. 1999); Mo. Ann. Stat. ¤
650.005 (West Supp. 2000); Mont. Code Ann. ¤ 44-6-102 (1999); Neb. Rev.
Stat. ¤ 29-4106 (Supp. 1999); Nev. Rev. Stat. Ann. ¤ 176.0913 (Michie 1997 &
Supp. 1999); N.H. Rev. Stat. Ann. ¤ 632-A:21 (1996 & Supp. 1999); N.J. Stat.
Ann. ¤ 53:1-20.20 (West Supp. 1999); N.M. Stat. Ann. ¤29-16-2 (Michie 1997 &
Supp. 1999); N.Y. Exec. Law ¤ 995 (Consol. 1995 & Supp. 2000); N.C. Gen.
Stat. ¤ 15A- 266.4 (1999); N.D. Cent. Code ¤ 31-13-03 (1997 & Supp. 1999);
Ohio Rev. Code Ann. ¤ 2901.07 (West 1999 & Supp. 1999); Okla. Stat. Ann.
tit. 74, ¤ 150.27a (West 1995 & Supp. 2000); Or. Rev. Stat. ¤ 137.076 (Supp.
1998), as amended by 1999 Or. Laws 97, ¤ 1; 35 Pa. Cons. Stat. Ann. ¤
7651.306 (West 1998 & Supp. 1999); R.I. Gen. Laws ¤ 12-1.5-8 (Supp. 1999);
S.C. Code Ann. ¤ 23-3-620 (Law. Co-op. Supp. 1999); S.D. Codified Laws ¤
23-5-14 (Michie 1998 & Supp. 2000), as amended by H.B. 1064, 75th Leg. (S.D.
2000); Tenn. Code Ann. ¤ 38-6-113 (1997 & Supp. 1999); Tex. Gov't Code Ann.
¤ 411.142 (Vernon 1998 & Supp. 2000); Utah Code Ann. ¤ 53-10-403 (Supp.
1999); Vt. Stat. Ann. tit. 20, ¤ 1993 (Supp. 1999); Va. Code Ann. ¤
19.2-310.2 (Michie 1995 & Supp. 1999); Wash. Rev. Code Ann. ¤ 43.43.754
(West 1998 & Supp. 2000); W. Va. Code ¤ 15-2b-6 (2000), as amended by H.B.
4322, 75th Leg. (W.Va. 2000); Wis. Stat. ¤ 165.76 (1997 & Supp. 1999); Wyo.
Stat. Ann. ¤ 7-19- 403 (Michie 1999).

n44 See Donnelly & Friedman, supra note 34, at 939 n.29.

n45 See Yale H. Yee, Note, Criminal DNA Data Banks: Revolution for Law
Enforcement or Threat to Individual Privacy?, 22 Am. J. Crim. L. 461, 477
(1995).

n46 See Michael Higgins, Acid Test, A.B.A. J., Oct. 1999 at 64, 65 ("It's
popular now for state officials to call for widening the categories of
people who will be tested."); Peter Mantius, More Data on DNA May Be OK, If
the Legislature Approves, State Will Move to Forefront of Identifying
Criminals Through Science, Atl. J. & Const., Mar. 17, 2000, at D1 (detailing
the Georgia legislature's consideration of a bill to require DNA samples
from all convicted felons).

n47 For a more detailed summary of state statutes, see Deborah F. Barfield,
DNA Fingerprinting-Justifying the Special Need for the Fourth Amendment's
Intrusion into the Zone of Privacy, 6 Rich. J.L. & Tech. 27-28 nn.11-27 and
accompanying text.

n48 See Mark Hansen, Banking on DNA: Prosecutors Hail Broadening
Collections; Others See Privacy Violations, A.B.A. J., Aug. 1999, at 27.

n49 See id.

n50 See Donnelly & Friedman, supra note 34, at 939 n.29.

n51 La. Rev. Stat. Ann. ¤ 15:609 (West 1999).

n52 Id.

n53 See Ky. Rev. Stat. Ann. ¤17.170 (Michie 1996 & Supp. 1999); Miss. Code
Ann. ¤ 45-33-15(3) (1999 & Supp. 1999).

n54 See Daniela Altimari, Panel Reviews DNA Proposal, Hartford Courant, Mar.
14, 2000, at A3.

n55 See DNA Sampling, Don't Expand State Database, Syracuse Herald-J., Feb.
28, 2000, at A6; Lewine, supra note 26, at 18.

n56 See Altimari, supra note 54, at A3.

n57 Paul Nowell, Police Urge Mandatory DNA Samples, AP Online, Nov. 4, 1999,
available at 1999 WL 28135993.

n58 See Hansen, supra note 48, at 26.

n59 Id. at 27.

n60 See Nowell, supra note 57.

n61 See Hansen, supra note 48, at 27.

n62 See infra notes 110-59 and accompanying text.

n63 States may choose to place further limitations on the collection, use,
and storage of DNA fingerprints, based on their state constitution; however,
this Note will focus solely on federal constitutional limits.

n64 389 U.S. 347 (1967).

n65 Id. at 511.

n66 See Schmerber v. California, 384 U.S. 757, 771-72 (1966).

n67 See Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 618 (1989).

n68 See id.

n69 See Jones v. Murray, 962 F.2d 302 (4th Cir. 1992), cert. denied, 506
U.S. 977 (1992).

n70 See Ryncarz v. Eikenberry, 824 F. Supp. 1493 (E.D. Wash. 1993); State v.
Olivas, 856 P.2d 1076 (Wash. 1993).

n71 See Rise v. Oregon, 59 F.3d 1556, 1562 (9th Cir. 1995), cert. denied,
517 S. Ct. 1160 (1996) (upholding Oregon statute requiring blood tests from
convicted sex offenders and murderers); Vanderlinden v. Kansas, 874 F. Supp.
1210, 1215 (D. Kan. 1995) (upholding Kansas law requiring blood withdrawal
from prisoners); Sanders v. Coman, 864 F. Supp. 496, 499 (E.D.N.C. 1994)
(dismissing Fourth Amendment action against a North Carolina law for failure
to state a claim); Ryncarz, 824 F. Supp. at 1499 (upholding Washington law
requiring blood withdrawal from prisoners); People v. Wealer, 636 N.E.2d
1129, 1132 (Ill. 1994) (holding that the blood testing was minimally
intrusive and therefore permissible under Fourth Amendment); State ex rel.
Juvenile Dep't v. Orozco, 878 P.2d 432, 435 (Ore. 1994) (comparing DNA
fingerprints to traditional fingerprints and finding collection
permissible); Olivas, 856 P.2d at 1088 (upholding Washington's DNA testing
statute).

n72 See Yee, supra note 45, at 477-78.

n73 See Hudson v. Palmer, 468 U.S. 517, 523-24 (1984).

n74 See Bell v. Wolfish, 441 U.S. 520, 545 (1979).

n75 "Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted." U.S. Const. amend. VIII.

n76 Collete G. Matzzie & Charles Jones, Prisoners' Rights, in Twenty-Second
Annual Review of Criminal Procedure: United States Supreme Court and Court
of Appeals 1991-92, 81 Geo. L.J. 1621, 1621 n.2933 (1993).

n77 U.S. Const. amend. V ("No person shall . . . be deprived of life,
liberty, or property, without due process of law . . . ."); U.S. Const.
amend. XIV ("[N]or shall any State deprive any person of life, liberty, or
property, without due process of law . . . .").

n78 Matzzie & Jones, supra note 76, at 1621 n.2932.

n79 Id. at 1654.

n80 Id. ("The Supreme Court has stated that courts should usually defer to
prison officials in determining whether a particular regulation is
reasonably related to a legitimate interest rather than punishment."). Based
on this line of reasoning, the Court has allowed random shakedown searches
of a pretrial detainee's cell. See Bell v. Wolfish, 441 U.S. 520, 555- 57
(1979).

n81 See, e.g., Kruger v. Erickson, 875 F. Supp. 583, 588 (D. Minn. 1995),
aff'd, 77 F.3d 1071 (8th Cir. 1996) (noting prisoner's diminished
expectation of privacy as grounds for upholding search).

n82 Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 618 (1989).

n83 See New Jersey v. T.L.O., 469 U.S. 325 (1985).

n84 See Mich. Dep't of State Police v. Sitz, 496 U.S. 444 (1990) (allowing
for roadway checkpoints to deter drunk driving); United States v.
Martinez-Fuerte, 428 U.S. 543 (1976) (allowing permanent immigration
checkpoints at national borders).

n85 See Dunn v. White, 880 F.2d 1188 (10th Cir. 1989).

n86 See Jones v. Murray, 962 F.2d 302 (4th Cir. 1992), cert. denied, 506
U.S. 977 (1992).

n87 See, e.g., State v. Olivas, 856 P.2d 1076, 1088 (Wash. 1993).

n88 Id. at 1086.

n89 193 F.3d 72 (2d Cir. 1999).

n90 Id. at 74.

n91 See supra notes 73-76 and accompanying text.

n92 Marcotte, 193 F.3d at 82.

n93 709 N.E.2d 1085 (Mass. 1999).

n94 Id. at 1091.

n95 Id. at 1092.

n96 Marcotte, 193 F.3d at 79.

n97 See, e.g., Sheryl H. Love, Note, Allowing New Technology to Erode
Constitutional Protections: A Fourth Amendment Challenge to Non-Consensual
DNA Testing of Prisoners, 38 Vill. L. Rev. 1617, 1626-31 (1993).

n98 See Mich. Dep't of State Police v. Sitz, 496 U.S. 444 (1990) (allowing
for roadway checkpoints to deter drunk driving); Skinner v. Ry. Labor
Executives' Ass'n, 489 U.S. 602, 618 (1989) (allowing drug testing of
railroad employees); United States v. Martinez-Fuerte, 428 U.S. 543 (1976)
(allowing permanent immigration checkpoints at borders); Dunn v. White, 880
F.2d 1188 (10th Cir. 1989) (allowing non-consensual AIDS testing of
prisoners).

n99 Bell v. Wolfish, 441 U.S. 520, 559 (1979).

n100 See supra notes 73-81 and accompanying text.

n101 See Schmerber v. California, 384 U.S. 757, 771 (1996) ("Such tests are
a commonplace in these days of periodic physical examinations and experience
with them teaches that the quantity of blood extracted is minimal, and that
for most people the procedure involves virtually no risk, trauma, or
pain.").

n102 See Keith Inman & Noah Rudin, An Introduction to Forensic DNA Analysis
6 (1997).

n103 See id. at 7; JoAnn Maric Longobardi, DNA Fingerprinting and the Need
for a National Data Base, 17 Fordham Urb. L.J. 323 (1989).

n104 See E. Donald Shapiro & Michelle L. Weinberg, DNA Data Banking: The
Dangerous Erosion of Privacy, 38 Clev. St. L. Rev. 455, 470 n.97 (1990).

n105 See Practical Aspects of Rape Investigation: A Multidisciplinary
Approach 45-47 (Robert R. Hazelwood and Ann Wolbert Burgess eds., 2d ed.
1995).

n106 Id. at 46 ("Court decisions regarding the rights of defendants have
made it incumbent on the law enforcement community to constantly improve its
ability to make use of physical evidence in court.").

n107 See Markett, supra note 4, at 209.

n108 See supra notes 14-25 and accompanying text.

n109 See Love, supra note 97, at 1626; Shapiro & Weinberg, supra note 104,
at 470; see also Sarah Gill, The Military's DNA Registry: An Analysis of
Current Law and a Proposal for Safeguards, 44 Naval L. Rev. 175 (1997)
(discussing the military's retention of DNA samples for use in identifying
casualties of war).

n110 See Edward Connors et al., U.S. Dept. of Justice, Convicted by Juries,
Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish
Innocence After Trial, at xxvi (1996) ("DNA analysis is a powerful and often
necessary tool for establishing the presence or absence of someone at a
crime scene.").

n111 How DNA Fights Crime, supra note 35, at A1.

n112 See id.

n113 See id. (quoting the director of Florida's DNA database lab as saying,
"I really have the greatest job in the world. I actually break the cases
open.").

n114 See id.

n115 Id.

n116 See Keith Bredemier, In Virginia, Freedom From Fear for Crime Victims,
Relief for Families, Wash. Post, July 7, 1999, at A14.

n117 Id.

n118 See id.

n119 See id.

n120 See id.

n121 See id.

n122 See id.

n123 See id.

n124 See Connors, supra note 110, at 4 ("DNA identification is not only a
way of securing conviction; it is also a way of excluding suspects who might
otherwise be falsely charged with and convicted of serious crimes.").

n125 Id. at 29.

n126 See id. at xxviii.

n127 Tucker, supra note 15, at 120. Statistics from Scotland Yard in the
United Kingdom show similar percentages of exonerated suspects.

n128 See How DNA Fights Crime, supra note 35, at A1 (citing a public
defender as saying that "as a defense attorney and a citizen, [he finds it]
intolerable to have such a powerful crime-fighting tool fall short of its
promise"); Charlie Goodyear & Erin Hallissy, The Other Side of DNA Evidence:
An Innocent Man is Freed, S.F. Chron., Oct. 19, 1999, at A10 (quoting
defense attorney Barry Scheck stating: "With advanced technology that we
have now, there's so much you can do to catch the guilty and exonerate
people that shouldn't even be arrested in the first place.").

n129 Connors, supra note 110, at xxi.

n130 See generally id.

n131 See Inmate Released After DNA Analysis, A North Carolina Man Was
Cleared of Rape as a Florida Man Was Charged, Orlando Sentinel, July 8,
1997, at C6.

n132 See id.

n133 See id.

n134 See Escaped Suspect Turns Himself In, AP Online, Apr. 21, 1999,
available at 1999 WL 17058911.

n135 See id.

n136 See id.

n137 See Yee, supra note 45, at 476.

n138 Id. at 477-78.

n139 Bredemier, supra note 116, at A14.

n140 See Kirby, supra note 9, at xv.

n141 See Chris Roberts, Panel Studies Use of DNA in Inmate Appeals, San
Diego Union-Trib., May 8, 1999, at A10 (noting that DNA evidence has
disproved eyewitness accounts on occasion).

n142 See Connors, supra note 110, at 14.

n143 See Derrick Nunnally, DNA Points at Brother of Free Man: La. Rape Case
Takes Surprising Turn in Va., Baton Rouge Sunday Advoc., Apr. 9, 2000, at
1A.

n144 See id.

n145 See Levy, supra note 26, at 90-92.

n146 See id. at 92-94.

n147 See id. at 90-91.

n148 See id. at 94-95.

n149 See id. at 96.

n150 See id. at 96-101.

n151 See Yee, supra note 45, at 490 ("It has already proven to be a vastly
efficient and accurate tool in solving sex and other violent crimes. The
existence of such data banks may even provide deterrence against these
crimes as knowledge of its use proliferates and becomes even more publicly
acknowledged."); John Laidler, DNA Samples Taken from Inmates, B. Globe,
Jan. 2, 2000, at 8 (quoting the director of the Massachusetts State Police
crime lab: "The kind of crimes this will help solve the most are those
involving sexual assaults and rapes.").

n152 Id.

n153 Levy, supra note 26, at 197.

n154 See Connors, supra note 110, at 14.

n155 By one estimate, two-thirds of rapists are repeat offenders, and commit
rape an average of eight to ten times. See Graham Brink, Bill Would Add
Burglars to DNA List, St. Petersburg Times, Mar. 13, 2000, at 1B.

N156 See Levy, supra note 26, at 1-3.

n157 See Richard A. Leo & Richard J. Ofshe, The Consequences of False
Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age
of Psychological Interrogation, 88 J. Crim. L. & Criminology 429 (1998);
Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational
Choice and Irrational Action, 74 Denv. U. L. Rev. 979; cf. Paul G. Cassell,
Protecting the Innocent from False Confessions and Lost Confessions-and from
Miranda, 88 J. Crim. L. & Criminology 497 (1998), 501 (attempting to put
problem of false confessions into perspective).

n158 See Paul G. Cassell, The Guilty and the "Innocent": An Examination of
Alleged Cases of Wrongful Conviction from False Confessions, 22 Harv. J.L. &
Pub. Pol'y 523, 526 (1999) ("The innocent are also jeopardized when police
fail to obtain a truthful confession from the true perpetrator of a
crime.").

n159 See Levy, supra note 26, at 1-3.

n160 For a summary of the historical debate and controversy over the use of
DNA fingerprints in the criminal justice system, see Levy, supra note 26, at
105-24.

n161 See Tucker, supra note 15, at 122.

n162 See Levy, supra note 26, at 106, 195.

n163 See Donnelly & Friedman, supra note 34, at 939.

n164 See Levy, supra note 26, at 195; Tucker, supra note 15, at 125.

n165 See id.

n166 See id.

n167 See id.

n168 See id.

n169 See generally Levy, supra note 26, at 157-88 (detailing the controversy
over DNA evidence in the 1995 murder trial of O.J. Simpson).

n170 Id.

n171 Tucker, supra note 15, at 126-27.

n172 In much the same way, the O.J. Simpson case demonstrated that the
defense can successfully argue that the process of DNA collection and
analysis was flawed.

n173 See id. at 126. While the Author is not so na ve as to believe that
innocent people never plead guilty, it seems less likely that a
well-represented innocent defendant would plead guilty to such a serious
crime in spite of the successful exclusion of such powerful evidence in the
case.

n174 See Levy, supra note 26, at 69.

n175 See id. at 57 ("Defense lawyers could pick and choose between those
cases in which they liked DNA results and those in which they did not,
relying on favorable DNA results and attacking DNA tests that implicated
their clients.").

n176 See Erin Hallissy, Study Shows How 62 Innocent Men Were Found Guilty,
Authors Call for More DNA Testing, S.F. Chron., Feb. 16, 2000, at A2; Mark
Hansen, DNA Bill of Rights, Activists Call for Standards on Inmate Testing,
Evidence Preservation, A.B.A. J., Mar. 2000, at 30; Matt Pommer, Attorneys
Urge New DNA Laws in Wisconsin, Madison Capital Times , Mar. 2, 2000, at 2A.

n177 See Joe Gyan, Jr., Safeguards Demanded for Justice, Baton Rouge Advoc.,
Feb. 26, 2000, at A1 (discussing the National Association of Criminal
Defense Lawyers' new "innocence agenda," which calls for, among other
things, easier access to DNA testing).

n178 See Levy, supra note 26, at 56 (quoting the Congressional Office of
Technology Assessment's 1990 report on DNA fingerprinting, "[Q]uestions
about the validity of DNA typing are 'red herrings that do the courts and
the public a disservice.'")

n179 Levy, supra note 26, at 190.

n180 See id.

n181 Yee, supra note 45, at 480-81.

n182 See Va Code Ann. ¤ 19.2-310.6 (Michie 1990). The statute does allow for
the sample to be used to create statistical data provided that no
identifying information about the subject is included. The sample may also
be used to update or to validate the original DNA fingerprint analysis. See
id. at ¤ 19.2-310.4.

n183 See, e.g., Fla. Stat. Ann. ¤ 943.325 (West Supp. 1995).

n184 See Yee, supra note 45, at 481.

n185 See Landry v. Attorney Gen., 709 N.E.2d 1085, 1096 (Mass. 1999).

n186 Yee, supra note 45, at 481.

n187 See id. at 485.

n188 See 42 U.S.C. ¤ 14133(b)(1) & (2) (1995).

n189 See Markett, supra note 4, at 211; see also 42 U.S.C. ¤¤ 14132(b) & (c)
(1994).

n190 See Markett, supra note 4, at 211; see also 42 U.S.C. ¤ 14132 (c)(2)
(1994) (providing $ 100,000 penalty for intentional unauthorized acquisition
of genetic material or data).

n191 See Yee, supra note 45, at 483.

n192 See generally Donnelly & Friedman, supra note 34.

n193 See supra notes 153-54 and accompanying text.

n194 See Yee, supra note 45, at 484; see, e.g., Cal. Penal Code ¤ 290.2(e)
(West Supp. 1995); Ga. Code Ann. ¤ 24-4-64(a) (Michie Supp. 1994); N.C. Gen.
Stat. ¤ 15A-266.10 (Michie Supp. 1993); VA Code Ann. ¤ 19.2-310.7 (Michie
1990).

n195 See Markett, supra note 4, at 223.

n196 See id. at 223.

n197 See Donnelly & Friedman, supra note 34, at 940.

n198 See, e.g., How DNA Fights Crime, supra note 35, at A1 (pointing out
that California has a backlog of about ten thousand DNA samples).

n199 See id.

n200 See Higgins, supra note 46, at 65.

n201 The issue of sample retention involves only those samples collected
from known individuals. There is widespread support for retention of samples
from crime scenes, even after conviction, to allow for retesting and
potentially exoneration. See Joe Gyan, Jr., Safeguards Demanded for Justice,
Baton Rouge Advoc., Feb. 26, 2000, at 1A (discussing recommendation by
National Association of Criminal Defense Lawyers and United States Senator
Patrick Leahy (D-Vt.) that prisoners have the right to review genetic
information for accuracy and the right to test their stored blood samples in
preparation for future criminal proceedings).

n202 See Sharon Begley, Decoding the Human Body, Newsweek, Apr. 10, 2000, at
51 (describing The Human Genome Project's efforts to identify the function
of each gene in human DNA).

n203 See Shapiro & Weinberg, supra note 104, at 470 (restating FBI's
contention that it will only bank DNA profiles).

n204 See Markett, supra note 4, at 212.

n205 See Mark Hansen, Banking on DNA, Prosecutors Hail Broadening
Collections; Others See Privacy Violations, A.B.A. J., Aug. 1999, at 26.

n206 See Higgins, supra note 46, at 64-65 (commenting on worries that what
"DNA scientists consider junk today might eventually be found to reveal
sensitive information about a person").

n207 See supra notes 197-200 and accompanying text.

n208 See Donnelly & Friedman, supra note 34, at 939.

n209 See, e.g., Angie Cannon, New DNA Testing Cuts Prosecutorial Hedging,
San Diego Union-Trib., Dec. 12, 1997, at A40 (discussing the FBI's new DNA
testing protocol, using six points of comparison on the DNA versus four);
Mark Hansen, A Comeback for Hair Evidence: A New Form of DNA Testing is
Reviving the Value of a Common Type of Proof That Had Fallen into Disrepute,
A.B.A. J., May 1998, at 66 (discussing new developments in the use of
mitochondrial DNA to test hair samples).

n210 See Inman & Rudin, supra note 102, at 7; see also Yee, supra note 45,
at 489 ("[G]iven the potential of DNA technology, destruction would be
unattractive as DNA scientists could find another improves 'ultimate
identifier.'").

n211 See, e.g., Cannon, supra note 209, at A40 (describing the FBI's new DNA
testing protocol and the improvements in DNA analysis over the last decade);
Hansen, supra note 209, at 66. (discussing scientific developments in
mitochondrial DNA testing).

n212 The National Commission on the Future of DNA Evidence is currently
considering the issue of sample retention. See Higgins, supra note 46, at
65.

n213 See Wambaugh, supra note 1, at "Author's Note" (calling DNA
fingerprinting "a stunning scientific discovery that may well revolutionize
forensic science as dramatically as fingerprinting did in the 19th
century").