A Violation of Privacy or Another Investigative Tool?
On July 7, 2010, alleged California serial murderer Lonnie Franklin, Jr., nicknamed the “Grim Sleeper,” was arrested in connection to ten murders and one attempted murder spanning over three decades (1). DNA evidence found at the crime scenes had failed to turn up a match within California’s DNA profile database, leading investigators to employ a recent technological method called familial DNA analysis – a technique that uses Y-STR (short tandem repeats found in the Y chromosomal centromere) to compare DNA profiles (1). The Y (male) chromosome carries paternal kinship markers and can effectively identify first order familial relationships, i.e., siblings, parents, children, and possibly more distant related relatives within DNA samples (2). In the case of the “Grim Sleeper,” the state was able to find a partial match to the DNA evidence found at the crime scenes, linking the sample to his son, who had provided a DNA sample having been convicted on a felony weapons charge. Analysis with Y-STR kit then assisted in leading investigators to the arrest of Franklin (1), likely the most well known case to date to employ familial searching within the United States. Despite its newer inception within the U.S., partial DNA matching in criminal cases has been most utilized in the United Kingdom, with a number of documented cases where it has been proven successful.
Given the recent introduction of Familial DNA searching as an investigative tool within the U.S., many states have so far been silent on its legislation. Policies for Familial DNA Analysis currently exist in Virginia, Colorado, California, and Minnesota. All these states use the same non- CODIS (Combined DNA Index System) software developed in Colorado (3). It is also up for debate in Tennessee (S.B. 0260) as well as on the federal level, (Utilizing DNA Technology to Solve Cold Cases Act 2011, H.R. 3361) having been referred to the House Committee on Judiciary.
Critics of familial DNA analysis, like the American Civil Liberties Union (ACLU), claim it is a potential violation of the Fourth Amendment and that searching a DNA database is an unreasonable search of those without suspicion of wrongdoing, potentially leading to harassment of those unrelated to the crime (4). Opponents also stress the argument that using the DNA database for familial searches defies the reasoning behind the courts decision in United States v. Kincade, that those on probation provide a DNA sample for reasons of diminished privacy for criminal sanctions and preventing recidivism (4). Familial searching arguably does neither, but leads one to ponder at what point DNA should be collected and once collected, if this property search within the state’s database is a violation of privacy given its potential to provide sensitive information about an individual. In United States v. Pool, the court argued that this type of profile searching is “analogous to a witness looking at a photograph of one persona and stating that the perpetrator has a similar appearance, which leads police to show the witness photos of similar looking individuals…” Proponents claim this type of genetic analysis is simply another superficial identification tool and not something that could be used to extract genetic information, including medical and physical characteristics. States that have codified policy appear to aware of possible privacy issues and have regulated it to some degree, limiting its use to cold cases, when other investigative leads have been exhausted, and/or to specific types of violent crimes that are a threat to public safety (3).
Probably the most controversial political argument opposing Familial DNA analysis involves the current racial disparity within national and state DNA databases. A disproportionate number of African Americans are found in the database, resulting in the likelihood that this group is most often under genetic surveillance (5). On the other hand, because research has shown that crime clusters in families (6), one could conclude familial searching is merely a matter of statistical probability, unrelated to racial bias. This still leaves a significant number of those within disadvantaged families to be under surveillance, continuing the disparity within the judicial system. In order to prevent racial bias, it could be suggested all persons, and not just those arrested or convicted of felonies, submit a DNA sample. Although, again, this raises the question of whether or not DNA used for the purpose of familial searching is a violation of privacy .
There is little doubt that familial searching is an effective tool given the number of documented cases used in apprehending criminals and exonerating the innocent. The question remains, however – can the argument be made that Familial DNA Analysis is a violation of your privacy, despite the state’s ability to legislate in a way that minimizes invasion? Is the cost to privacy greater than the benefit and is racial bias within the justice system controversial enough to prevent an effective investigative tool from being used, or should public safety trump these concerns?
References
1. http://en.wikipedia.org/wiki/Grim_sleeper
2. http://www.forensicdnacenter.com/dna-ystr.html
3.http://www.denverda.org/dna/Familial_DNA_Database_Searches.htm
6.http://www.ncbi.nlm.nih.gov/pubmed/20334717
For More Information
1.http://judiciary.house.gov/hearings/Hearings%202012/Risher%2004252012.pdf
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