The Cool Justice Report
May 20, 2007
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
Mandatory collection of DNA samples on the conviction for certain felonies already exists in most states and the federal justice system. Many states are now seeking the collection of DNA samples at the time of an arrest. Proponents argue that the collection procedures are non-invasive and amount to no more than a high tech finger print. Many states that permit sample collection on arrest require the destruction of the sample if there is no conviction.
In recent years, DNA has been used successfully by law enforcement and defense lawyers alike, analyzing ancient biological samples, obtained and preserved when there was no DNA testing. Cold cases have been solved. Recently, the brutal rape and murder of Cape Cod socialite, Christa Worthington was solved by a DNA dragnet. Conversely, the Innocence Project just announced the release of another wrongfully convicted person, bringing the total number of such exonerated to 201 since the Project's inception.
Parents concerned about possible abduction of their children (not uncommon after contentious custody fights) can now have a child's fingerprints and DNA sample collected and preserved in some jurisdictions.
So-called DNA dragnets have been used by police in recent years, seeking the "voluntary" collection of DNA material from certain targeted groups. Privacy advocates maintain that DNA dragnets have not been effective.
In Baton Rouge, Louisiana, police obtained "voluntary" samples from over 1,000 people, but produced no viable suspects. A lawsuit ensued accusing the police of violating the Fourth Amendment's warrant requirement and seeking the destruction of the samples.
In Omaha, Nebraska, a similar dragnet was employed in an attempt to find a serial rapist. Thirty African-Americans were asked to give DNA samples. Those that refused were forced to submit with search warrants. California, Michigan, Florida and Virginia have employed DNA dragnets.
In 2004 a California man, whose brother was brutally murdered by an unknown serial killer, had invested over $1.3 million to get the issue on the election ballot. At that time California's DNA database had over 220,000 samples. DNA hits at that time averaged one per day.
California Proposition 69 was approved by the electorate. It requires the collection of samples from adults and juveniles convicted of any felony offense or any sex offense or arson offense, or an attempt to commit such an offense (not just felonies), and adults arrested for or charged with felony sex offenses, murder, or voluntary manslaughter (or the attempt to commit such offenses).
Beginning in 2009 samples will be collected from all adults arrested for or charged with any felony offense. Law enforcement laboratories are permitted to perform analyses for the state database and maintain local databases. Procedures for confidentiality and removing samples from databases are specified in the law.
The Fifth Amendment to the Constitution guarantees freedom from self-incrimination. Courts have consistently ruled that it applies to statements and spoken testimony. Collection of DNA, like collection of fingerprints and breathalyzer samples, is referred to as non-testimonial evidence, meaning simply that the accused is not required to speak to obtain the sample.
Following an arrest, courts have the authority to require a defendant to submit to DNA testing, as well as the collection of handwriting and voice exemplars, to aid prosecution. Those procedures require permission of a judge after some showing of necessity by a prosecutor, providing the protection of due process.
Opponents claim that DNA laboratories can and do make mistakes. The greater number of samples, the greater the possibility a mistake can be made. Some maintain that police have begun to rely on DNA racial markers. Bioethicists are concerned that this will lead to racial or ethnic profiling. Civil libertarians fear we are marching toward a techno world of George Orwell's 1984.
Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy and is a Charter Fellow, American Academy of Trial Counsel. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com