Maryland v. King: The Dissent’s Ten Second Rule

The four dissenting Justices in Maryland v. King insisted that DNA databases and fingerprint databases are as different as night and day. As NYU Law Professor Erin Murphy put it:

Most powerfully, Justice Scalia explained (partially through the use of a chart) why fingerprinting differed dramatically from DNA typing. He observed that known fingerprints are not “systematically compared” with latent prints from unsolved crime scenes (in contrast to DNA), and even if so, courts have never approved such action. He also observed that while fingerprinting may not even be a “search,” analysis of genetic code certainly is.

(Murphy 2013, p. 166, note omitted). Relying solely on Justice Scalia’s “powerful” assurances, she adds that

Police have never routinely collected or used photographs or prints for random crime-solving purposes; both were always mainly for identification of persons already suspected of a crime (i.e., individualized suspicion).114 We know this intuitively: how common are newspaper headlines about thirty-year-old cases solved through “cold hit” fingerprint or mug shot matches, or exonerations based on a hit to a fingerprint or photograph newly uploaded to the database?

114. See King, 133 S. Ct. at 1987-88 (Scalia, J., dissenting). Indeed, police could not have used photos or fingerprints for random crime-solving even if they had wanted to, since it was not until twenty or so years ago–when large biometric databases were developed–that it was even possible to conduct a random automated comparison between known files and crime scene samples.

Id. at 177-78. There are several problems with Justice Scalia’s claims as well as this gloss on them. … [read more]