Category Archives: Uncategorized

“A DNA Fingerprint Is Nothing More than a Long List of Numbers”

In Our DNA Is Our Blueprint, I suggested that the Supreme Court would be wise to avoid describing DNA as the equivalent of a building’s blueprint or a medical history. The Court also should be wary of efforts to dismiss a DNA identification profile as a mere “string of numbers” with no further implications. Brief for the United States Amicus Curiae Supporting Petitioner, Maryland v. King, No. 12-207, Jan. 2, 2013, at 2. According to the government:

The analysis of the genetic material … reveals nothing private about the arrestee at all. … A DNA fingerprint is nothing more than a long list of numbers … they do not encode protein sequences — that is, they do not “code” for physical traits, propensities, or susceptibilities. … A DNA fingerprint therefore yields no private information at all. … In short, the number string does not give rise to any inference about the personal information or characteristics of the person to whom it uniquely belongs. Obtaining those numbers therefore does not meaningfully invade an arrestee’s privacy.

Id. at 19-22.

Here, I demonstrate that inferences from a CODIS profile to facts that individuals would reasonably regard as private are not inherently impossible. Whether this fact weighs heavily in favor of the individual is, of course, a further question. Parts I and II probe the government’s contention that obtaining “the number string” “does not meaningfully invade an arrestee’s privacy” because there is “no private information at all.” Part III offers a few thoughts on what follows if the government is wrong about the information content of the DNA sequence data.

I. Strings of Numbers

A social security number is a string of digits, but until 2011, the string contained an area code based on the state in or from which the application for a number was made. For example, a pre-2011 number starting with 520 refers to an application from within Wyoming. Social Security Administration, Social Security Number llocations, Jan. 2, 2013. This information might not seem intensely private, but the information content is not zero.

Today’s social security numbers are a random nine-digit string (with some possibilities excluded). Social Security Administration, Social Security Number Randomization, Nov. 29, 2012. CODIS profiles are different in at least three respects. First, parts of them could be close to (and therefore correlated with) disease-causing loci.  However, correlations that permit accurate inferences about health status from the profile itself are not known. See Scientists Brief on CODIS Loci, Jan. 3, 2013.

Second, in the future some parts of the profiles might be shown to play a causal role in gene regulation, affecting the quantity of a protein produced in a cell. Id. Indeed, one CODIS locus has been shown to participate in a regulatory system, but this does not mean that it is like a medical record. Brief of Genetics, Genomics and Forensic Science Researchers as Amici Curiae, Maryland v. King, No. 12-207, Dec. 28, 2012. The government’s brief suggests that if this situation were to change, the Fourth Amendment balancing would need to be re-examined. That also would be the case if correlations with more predictive power were to be discovered.

Finally, unlike numbers assigned by the Social Security Administration, a new CODIS profile does not emerge from a random-number generator every time a child is born. Rather, the child’s profile is a mixture of pre-existing numbers. A child inherits a random half of the father’s numbers and a random half of the mother’s numbers. This aspect of sexual reproduction has immediate implications for privacy.

II. Inherited Numbers Carry Some Information

The fact that seemingly empty numbers are inherited via sexual reproduction complicates the privacy analysis in several ways. It means that siblings will have numbers that, on average, are closer to one another than to unrelated persons and that a parent and child will have at least one of every two pairs of numbers in common. Consequently, a curious database administrator could compare profiles of pairs of arrested individuals to draw inferences about possible genetic relationships. Most inferences of specific relationships would be wrong–for example, many nonsiblings would show more similarities in their profiles than true siblings would. Nevertheless, many pairs could securely be said not to be parent and child.

Usually, these possible inferences would be unimportant. Most people are not my parents. But suppose a candidate for sheriff were a strong challenger in an upcoming election, and she, her husband, and her adult child (born during the course of the marriage) were arrested. The CODIS profiles could be used for parentage testing. A finding of nonpaternity would be proof of the candidate’s marital infidelity. The fact that “[a] DNA fingerprint is nothing more than a long list of numbers” does not mean the “fingerprint” is devoid of socially significant information.

III. Does It Matter?

The government’s brief points out that the CODIS system makes such abuses difficult to accomplish at the level of the national database (NDIS). See Brief for United States, at 19-20:

DNA identification profiles stored by CODIS — as Maryland law contemplates — have no identifying information associated with them. CODIS contains the number-string itself and information about the laboratory that generated it; only in the event of a “hit” in the database can the record ultimately be traced back to a particular arrestee. See CODIS and NDIS Fact Sheet.

But the state or local laboratory that prepared the profile does not need to trace it “back to a particular arrestee.” Someone there already knows to whom the profile belongs. Moreover, the hypothetical does not involve NDIS. It involves a corrupt sheriff intent on learning the CODIS profiles of known individuals from samples taken by his officers.

A more convincing response is that unusual, unauthorized, and unlikely privacy abuses are not weighty enough to overcome strong government interests in collecting biological material. Maryland retains the original DNA samples. It could test them for a large number of genetic conditions. Urine samples in drug testing programs could be examined for disease-related information. As the government points out, these possibilities do not render the collection and statutorily limited analysis and use of the material unconstitutional. Id. at 23-24.

The government goes too far, however, when it suggests that the risk of abuse is “irrelevant.” Id. at 24. The Court should not blind itself to the possibility of abuses of power, of bad faith, and of temptations to cut corners. But neither should it mistake the possible for the probable. Unless the possibilities for abuse are substantial, they should not invalidate a program that truly serves strong state interests.

Cross-posted to Double Helix Law

“Our DNA is Our Blueprint”

The brief for Alonzo Jay King, in the arrestee DNA sampling case, Maryland v. King, correctly maintains that “The collection of an individual’s DNA raises profound privacy concerns.” Respondent’s Brief, at 45. It then elaborates that

Our DNA is our blueprint: an individual’s DNA contains not only deeply personal information about the subject’s medical history and genetic conditions, but also information that can be used to make predictions about a host of physical and behavioral characteristics, ranging from the subject’s age, ethnicity, and intelligence to the subject’s propensity for violence and addiction. See, e.g., Center for Genetics Education, The Human Genetic Code–The Human Genome Project and Beyond (2007),; Mark A. Rothstein & Meghan K. Talbott, The Expanding Use of DNA in Law Enforcement: What Role for Privacy?, 34 J.L. Med. & Ethics 153, 158 (2006).

Id. at 45-46. Regardless of how the Supreme Court decides the case, the Court would be ill-advised to uncritically repeat these assertions about (1) “our blueprint” and (2) “age, ethnicity, … intelligence, … violence and addiction.”

I. “Our Blueprint”

Does the human genome tell us as much about an adult human being as the blueprint of a building tells about the building? In the preface to a recent book cited in the brief, Harvard University population geneticist Richard Lewontin argues that the metaphor of “blueprints” is oversimplified if not misguided: “we expect genes ‘for’ not only skin color and eye shape but also intelligence, disease, and musical ability. [But] it is an error to suppose that the DNA sequence of an organism predicts its total nature and life history.” Another contributing author writes that “the genes most of us envision inside us, calling the shots and determining our characteristics, are myths.” A blueprint determines the height of a building, but genes (not yet known with any exactitude) give a range of response for the height of human being.

II. Predicting Age, Ethnicity, Intelligence, Violence, and Addiction

Yes, DNA sequences can “be used to make predictions about … age, ethnicity, and intelligence [and] violence and addiction.” So can a Ouija board or a horoscope. The two authorities cited in the brief do not maintain that such predictions are any good. The Australian report, Center for Genetics Education, The Human Genetic Code–The Human Genome Project and Beyond (2007), cautions that determination of the entire DNA sequence contained in the human genome will not enable geneticists to look at a person’s DNA sequence and predict everything about their appearance, behaviour and other characteristics.” Id. at 6. It does not even mention inferences about age, ethnicity, intelligence, violence, or addiction.

The other publication, by Rothstein and Talbott, does mention some of these characteristics, but only as the subjects of possible–and possibly specious–“claims.” These commentators wrote that “[i]t is likely that within a short period of time there will be claims of the ability to make behavioral genetic predictions about such matters as sexual orientation, intelligence, addictive behavior, musical ability, and temperament.” Mark A. Rothstein & Meghan K. Talbott, The Expanding Use of DNA in Law Enforcement: What Role for Privacy?, 34 J.L. Med. & Ethics 153, 158 (2006). It now is seven years since they made this prediction. Have any new claims been made? More to the point, have they been confirmed? Claims are cheap. Proof is hard.

Beliefs also are cheap, in the sense of being easy to acquire. Once acquired, they can be difficult to dislodge. A Supreme Court opinion that reinforces the popular dogma of genetic determinism would be irresponsible–and unnecessary. In upholding as constitutional the compulsory sterilization of “a feeble minded white woman,” the Supreme Court infamously wrote that “[t]hree generations of idiots are enough.” Buck v. Bell, 274 U.S. 200, 207 (1927). One such opinion was enough. The genome is not a medical history. No one can tell from my DNA what diseases I have had, how much I weigh, or how high my blood pressure is. Identical twins rarely die of the same disease. They have a less than 50/50 chance of having the same common diseases.

This is not to deny that the genome contains substantial information. Some of it is highly predictive or diagnostic of some conditions, like sickle-cell anemia. That alone is sufficient to raise “profound privacy concerns.”


  • Jordana T. Bell & Tim D. Spector, A Twin Approach to Unraveling Epigenetics, 27 Trends in Genetics 116 (2011) 
  • Genetic Explanations: Sense and Nonsense (Sheldon Krimsky & Jeremy Gruber, eds. 2012)

Cross-posted to Forensic Science, Statistics, and the Law.

Balancing versus Categorizing in Maryland v. King

The arrestee DNA case of Maryland v. King offers the Supreme Court the opportunity to address a fundamental issue of Fourth Amendment jurisprudence. The Amendment prohibits “unreasonable searches and seizures.” According to the briefs of Maryland and the United States, the established mode of ascertaining reasonableness is an ad hoc “totality of the circumstances” balancing of interests. The major individual interests would seem to be in keeping information about one’s identity and presence at certain locations private, and the dominant government interests are in investigating and solving cases.

These briefs rely on cases that balanced state and individual interests related to searches in limited circumstances–to create or mark the bounds of new, categorical exceptions, or to subject probationers and parolees to searches without a warrant or any well-defined categorical exception to the warrant requirement. Like most lower court cases on arrestee DNA sampling, the briefs do not explain why balancing should apply to DNA testing before conviction. Rather, they seem to assume that the reasonableness of searches flow from an immediate balancing of interests.

The competing, and more traditional view, presented in Alonzo King’s brief, is that it takes a categorical exception to permit a search without a valid judicial warrant. This brief argues that DNA sampling does not fall under an established exception to the general requirement of a search warrant and that ad hoc balancing is not the norm in determining the reasonableness of a search.

A critical case in this regard is Samson v. California, 547 U.S. 843 (2006). There, the Court held that parolees had no protection from warrantless searches to uncover evidence of crimes. It did so without purporting to create a new exception to this requirement. Moreover, it is hard to discern a satisfactory basis for such an exception. All the previous exceptions rest on the presence of a government interest above and beyond the discovery of evidence that would be useful in a criminal case against the target of the search (such as the government’s role as an employer in maintaining a drug-free workforce), an unusually pressing need to dispense with a warrant (as in a limited investigatory stop to acquire information about what appears to be an imminent or ongoing crime), or government conduct that is a milder invasion of personal liberty or privacy than a canonical search or seizure of the person (such as a limited pat down of the individual’s outer clothing). Writing for the Samson Court, however, Justice Thomas reasoned that because parole is “an established variation on imprisonment” with an express condition that the parolee is subject to warrantless searches, “petitioner did not have an expectation of privacy that society would recognize as legitimate.” Id. at 852. Such language normally means that government conduct does not rise to the level of a search. If Samson had no reasonable expectation of privacy, then there was no search under Katz v. United States, 389 U.S. 347 (1967), and hence no need to create an exception to the rule that a search is presumptively unreasonable without a warrant  Thus, at least one prominent commentator (Kerr 2012, p. 318) reads Samson as eliminating the per se rule rather than creating a new exception. I tend to think that the Court is simply vacillating, with no guiding principles, between the two theories of reasonableness–the one that starts with warrants and the more open textured one advanced by Maryland and the federal government.

There is a rich literature on these two theories, but one would not know this from perusing the briefs. Certainly, some Justices have questioned the preference for warrants for years. The King case could test whether their doubts have spread to a majority of the Court, leading to a more flexible but less predictable framework for applying the Fourth Amendment across the board.


Cross-posted to Forensic Science, Statistics, and the Law

EEOC Stays Mum on GINA

In “an informal discussion” that it hopes “is helpful,” the Equal Employment Opportunity Commission (EEOC) has given an apparently negative answer to the following question:

Are DNA sequences that cannot be used and are not acquired by an employer to obtain medically relevant information on an employee “genetic information” as the term is used in the Genetic Information and Nondiscrimination Act of 2008 (GINA)?

The question came from the Scientific Working Group on DNA Analysis Methods (SWGDAM), which requested an “Informal Advisory Opinion … on the GINA exemption for forensic laboratories.” GINA makes it generally illegal for “an employer to request, require, or purchase genetic information with respect to an individual.” � 202. It defines “genetic information” as “information about [an] individual’s genetic tests.” � 206(A)(i). Finally, it defines a “genetic test” as “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes.” � 201(7)(A).

Congress, in its finite wisdom, devoted almost no attention to the problem this law could create for police departments, laboratories that perform DNA testing, and manufacturers of reagents and materials used for DNA testing. Because personnel at these organizations can–and have–contaminated samples or equipment with their own DNA, it would be helpful to have DNA identification profiles from all employees who might possibly be a source of foreign DNA on record. A check of the records could the confirm or exclude any suspicions of such employee contamination. And even without a database, in a specific case, an employer might have good reason to ask a particular employee for a DNA sample to check whether that individual’s DNA seems like it could have affected a DNA test.

What Is a “Genetic Test”?

This situation could be resolved most simply by interpreting “genetic test” in light of the express Congressional goal of preventing employers from using health-related DNA sequence information to disadvantage applicants for jobs or employees. Because the DNA identification profile does not reveal such information and is not being used for such a purpose, this biometric identifier should not be considered a genetic test under Section 201(7). It is, of course, “an analysis of human DNA,” but does it “detect[] genotypes, mutations, or chromosomal changes”? Current STR testing does not detect “genotypes” in the sense of alleles of genes. It does detect “mutations” inasmuch as all genomic variation comes from changes in base-pair sequences, but that cannot be what Congress meant by “mutations.” Such a reading would render the preceding word, “genotypes,” superfluous. Perhaps “mutations” is in the list to cover sequences that do not cause disease but have predictive power as a result of linkage disequilibrium, or perhaps it refers to somatic mutations that can produce diseases without altering intergenerationally inherited genotypes. Finally, “chromosomal changes” probably refers to breaks in chromosomes or changes in their number (aneuploidy), since these produce medical conditions in children.

Rather than focus on what Congress intended to accomplish with the words in the bills it passed, however, the EEOC passed the buck to a scientific body with no known legal expertise. The EEOC letter reads as follows: “we coordinated closely with experts at the National Human Genome Research Institute (NHGRI) … who confirmed that forensic DNA analysis constitutes a genetic test.” The unnamed experts at NHGRI are no doubt whizzes at understanding how genetic and genomic research is conducted, but if the EEOC wanted to know whether scientists call forensic DNA profiling “genetic testing,” all it had to do was glance at NHGRI’s website. A webpage states that “The term ‘genetic testing’ covers an array of techniques including analysis of human DNA, RNA or protein. Genetic tests are used as a health care tool to detect gene variants associated with a specific disease or condition, as well as for non-clinical uses such as paternity testing and forensics.”

But what should we make of the tautology that forensic DNA testing of human DNA tests human DNA? This issue is not how scientists use the words “genetic testing,” but what usage best fits the structure and function of GINA. The fact that scientists define “genetic testing” one way for the purpose of medical research or diagnosis does not mean that the members of Congress used the words the same way for the purpose of combating a perceived problem in the workplace. Cf. Nix v. Hedden, 149 U.S. 304 (1893) (refusing to follow botanical definitions in interpreting an Act of Congress establishing different tariffs on fruits and vegetables).

What Is the CODIS Laboratory Exception and How Did It Get here?

So what reason is there to believe that Congress intended to use “genetic tests” to refer not just to the tests “used as a health care tool,” but also to those used for nonclinical purposes? Beyond invoking the impressive five-letter acronym NHGRI, the “informal discussion” adds that “the fact that Congress included an exception specifically permitting forensic DNA analysis suggests that it constitutes genetic testing that would be prohibited in the absence of the exception.” However, other explanations for this text are possible. As I suggested in an essay entitled GINA’s Genotypes, 108 Mich. L. Rev. First Impressions 51 (2010), “most likely, individual legislators may not have had any view about the distinction between genomic and genetic information, but perceived no reason not to include the quality-control exception of section 202(b)(6) for laboratories conducting law enforcement and human remains testing.” If that is correct, then it would be questionable to read the exception as circumscribing the unresolved definition of genetic testing–especially considering the haphazard manner in which the exception came into existence.

Section 202(b)(6) of GINA, 42 U.S.C. 2000ff-1(b)(6), allows an employer to acquire genetic information

where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory or for purposes of human remains identification, and requests or requires genetic information of such employer’s employees, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.

On April 25, however, the House suspended its rules and passed a bill that differed from the one reported out of committee. The modified bill added (among other things) an exception for any kind of genetic analysis

(6) where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory, includes such analysis in the Combined DNA Index System pursuant to section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132), and requests or requires genetic information of such employer’s employees, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.

The belatedly modified bill, approved by the House without committee consideration or floor debate on the amendment, went to the Senate. The Senate adopted the bill (with a few more amendments). This Senate version made no change to subsection 6.

The House then took up the Senate version of the original House bill. No committee of either house of Congress had ever discussed subsection 6, and there was not a word from any member about it. But somebody noticed one problem with it, for an eleventh hour change was made. House Concurrent Resolution 340 introduced the “technical amendment” of expanding the exception beyond laboratories that submit profiles for inclusion in CODIS databases. Representative George Miller explained:

[W]ith respect to the Department of Defense Labs, in our current bill, section 202(b)(6) and section 205(b)(6) of H.R. 493 provides an exclusion for an employer to conduct DNA analysis for law enforcement purposes as a forensic laboratory, which submits analyses to the Combined DNA Index System, known as CODIS, if the employer only uses that analysis of DNA identification markers for quality control to detect sample contamination.

However, we recently learned that the Armed Forces DNA Identification Laboratory, AFDIL, of the Armed Forces Medical Examiner System, which identifies soldiers’ remains, would not be included in this exclusion because it does not submit DNA to the CODIS system.

It was not our intent to prevent the Armed Forces, AFDIL, from using DNA analysis for human remains identification. This technical change would allow them to continue their mission.

Cong. Rec., May 1, 2008, at H2982, 110th Congress.

On May 1, 2008, the House adopted the amended bill. The remarks about allowing AFDIL to continue analyzing DNA to identify the remains of soldiers, do support the EEOC’s view that Congress thought it needed to have Section 202(b)(6) because the definition of “genetic test” in Section 201(7) was so broad as to reach forensic testing of medically uninformative loci. But if the only purpose of the “technical” change to Section 202(b)(6) was to allow AFDIL to stay in business, then the 202(b)(6) exception applies only to AFDIL and the previously defined group of forensic laboratories that submit samples to the CODIS system. Other forensic laboratories have no safe harbor.

Years ago, I wrote the staff of Representative Slaughter, who fought for 14 years for GINA’s passage, for information on the process that led to the belated insertion of an exception into the bill after the House already had approved of it. I also wrote Representative Miller’s office (twice) but received no reply. Representative Slaughter’s staff provided no real answer either but referred me to Kathy Hudson, then the director of Johns Hopkins University’s Center for Genetics and Public Policy (and now NIH’s Deputy Director for Science, Outreach, and Policy). Dr. Hudson indicated that the provision was added because the Hopkins Center learned that forensic laboratories routinely collect employee DNA for “quality assurance.” She did not explain why this rationale does not also apply to employers such as police departments, whose officers come into contact with biological traces at crime scenes, and manufacturers of supplies used in forensic DNA profiling, whose employees’ DNA might lead to unwitting contamination in the laboratory.

In short, despite 14 years of introducing federal bills to stop employers from using “genetic information” to the detriment of employees and an explosion of state law on “genetic discrimination,” it appears that no one inside (or contributing to) the federal legislative process had a clear idea of the scope of the law-enforcement issues that GINA might create.

Where Does the EEOC Stand?

Rather than attempt to fill this gap with meaningful, if informal guidance, the EEOC threw up its hands, writing that

Interpreting GINA to allow manufacturers of supplies used in DNA forensic analysis to acquire genetic information under the DNA testing exception might well constitute a reasonable interpretation of the statutory exception, but the issue you have identified was not raised during the public comment period on the regulation implementing Title II of GINA. Nor is there any legislative history to indicate that it was contemplated during the drafting of the statute. The Commission has not taken a position on this issue.

Overall, the letter seems to state that the Commission has adopted the broad and mechanical definition of “genetic test” by reason of its consultation with the scientists or administrators at NHGRI but that it remains willing to contemplate the possibility that the exception for some forensic laboratories and AFDIL is broader than its words suggest.

The letter concludes that “this … discussion … does not constitute an official opinion of the EEOC.” What. then, is it? An unofficial opinion? An official nonopinion? A nonofficial nonopinion? It hardly matters. The EEOC’s analysis of the question posed is of little use to anyone who thinks seriously about GINA. If and when an employee–or the EEOC–sues a police department or a manufacturer for a practice that Congress clearly had no interest in preventing, one can only hope that the courts will supply a more thoughtful and complete analysis.

Cross-posted to Forensic, Science, Statistics and the Law

Scientists’ Brief on CODIS Loci

On November 9, 2012, the Supreme Court voted to review a case posing the following question: “Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes?” In Maryland v. King, the state’s supreme court concluded that the protection against unreasonable searches and seizures forbids the state from collecting DNA from an individual whose true identity can be established with ordinary fingerprints. On December 28, 2012, the Supreme Court received a Brief of Genetics, Genomics and Forensic Science Researchers as Amici Curiae. Below are ten questions and answers about the brief.

Who contributed to the brief?

I did, and Hank Greely was an additional author. The scientists who participated in the writing are all active and distinguished researchers at medical schools (including Harvard, Yale, and Johns Hopkins) or universities (including Duke, Penn State, and Kings College, London). They include a former president of the American Society of Human Genetics, a past president of the American Board of Medical Genetics, Fellows of the American Association for the Advancement of Science, and members of the Institute of Medicine and the American Academy of Arts and Sciences.

Why did these law professors, medical and statistical geneticists, and molecular biologists submit an amicus brief?

The brief is intended “to inform the Court of the possible medical and social significance of the DNA data stored in law enforcement databases.” (P. 1). Advocacy groups, legal scholars, and some judges have asserted that the small number of features used in law enforcement DNA databases are predictive of health status (or soon will be). The brief attempts to clarify this issue.

Which side does the brief support?

The brief was submitted in support of neither side. It describes the nature of genetic information, the features of the genome used in law enforcement DNA databases, how those features are used in medical research, and whether they currently permit police, employers, or insurers to discern significant facts about a person’s present or future health status.

What conclusions does it reach?

Amici conclude that “[u]nlike medical genetic tests, law enforcement identification profiles have no known value for medical diagnosis or prediction of future health.” (P. 2).

That’s today. What about the future?

Amici caution that “no one can say with certainty what the future will bring, and it is possible that specific loci will be found to affect the operation of certain genes or to display correlations to disease states.” (P. 2). Nevertheless, they suggest that “it is unlikely that the identification profiles will turn into powerful medical diagnostic or predictive tools that can be used to infer disease states or predispositions by examining forensic database records.” (P.2).

Does this mean that the “CODIS loci,” as the identifying features are called, have no medical significance?

Absolutely not. The DNA sequences have been used in medical research for some 20 years to hunt for disease-causing gene mutations. They have been studied for associations with diseases and traits such as longevity. The question the brief addresses is what kind of information can be gleaned from inspecting a database record.

Doesn’t the highly publicized ENCODE Project prove that there is no such thing as “junk DNA”?

The brief contends that debate over the fraction of the genome that is, in an evolutionary sense, ‘junk’ … is orthogonal to the matter before the Court. (P. 26). A section of the brief explains that the data sets and papers recently released from the international Encyclopedia of DNA Elements Project are important to further research into gene regulation and other matters, but they do not indicate that all DNA sequences are critical to health or other important traits. What “[t]he ENCODE papers show [is] that 80% of the genome displays signs of certain types of biochemical activity–even though the activity may be insignificant, pointless, or unnecessary.” (P. 32).

Well, how about other uses? Don’t the CODIS loci tell scientists a lot about a person’s ancestry and race?

Not really. The CODIS loci can reveal something about bio-geographic ancestry, but anthropologists and population geneticists use far more probative ancestry-informative and lineage markers to study genetic histories. That “race” is not a biological category is now well known. As for socially perceived race, “[a] CODIS profile could be used to calculate probabilities that someone would be described as Caucasian, African-American, or Hispanic, but categorical inferences would not be very accurate, and attempts to predict the census-type race of a person from a CODIS profile would seem pointless considering that apparent race already would be known.” (P. 36).

So the brief shows that there is absolutely no important information that can be deduced from a CODIS profile?

No, amici do not say that either. The brief explains that “[b]ecause children inherit all their DNA from their biological parents, the CODIS loci can be powerful tools for determining whether two people could be genetically related as parent and child. … [T]he most powerful genetic information other than identity that the CODIS profiles contain [would be] that two people are not parent and child” or “that two people were identical twins.” (Pp. 33-34).

Where can I find the brief?

Here’s a pdf file. It should appear, along with other briefs, “soon” in the American Bar Association’s Preview of Supreme Court cases.

Cross-posted to Forensic Science, Statistics, and the Law.

“Human Error, Bias, and Malfeasance” in DNA Databases and Law Reviews

A new article in the Boston University Law Review offers the following warning:

[E]xpansive police arrest authority–and the desire to continually enlarge identity evidence databases at very little cost in time and expense–should give pause for several reasons. First, contrary to common public perception, DNA is not infallible. Rather, like other evidence, it is subject to human error, bias, and malfeasance, and has figured in several wrongful accusations and convictions. As Professor David Kaye notes in his recent book:

How probable is it that two, correctly identified DNA genotypes would be the same if they originated from two unrelated individuals? By definition, [such matches] do not consider any uncertainty about the origins of the samples (the chain-of-custody issue), about the relatedness of the individuals who left or contributed the samples (the identical-alleles-by-descent issue), or about the determination of the genotypes themselves (the laboratory-error issue).

Wayne A. Logan, Policing Identity, 92 B.U. L. Rev. 1561, 1580-89 (2012) (footnote numbers omitted).

Having searched without success for a single case in the U.S. of a false conviction based on DNA evidence from a database search,1 I was puzzled. Could I have missed several false convictions arising from erroneous DNA testing? Did these cases involve database trawls, where observer “bias” is not normally an issue?

Being a lawyer, I did what any reader of law review articles must do. I turned to the footnotes. The footnote on false convictions as a reason to constrain DNA databases reads as follows:

See Greg Hampikian et al., The Genetics of Innocence: Analysis of 194 DNA Exonerations, 12 Ann. Rev. Genomics & Hum. Genetics 97, 107 (2011) (mentioning existence of at least fifteen exonerations in which DNA resulted in conviction).

If Professor Logan (and the source-citation reviewers of the Boston University Law Review) are correct, Professor Hampikian discovered at least 15 cases of DNA evidence that resulted in false convictions. How could I have missed all these case in my earlier postings?

The Genomics and Human Genetics review article plainly does not even begin to support the claim that DNA testing produced 15 false convictions. It merely states that among previously analyzed cases of postconviction exonerations, “there were at least 15 cases where DNA was tested prior to conviction.” Hampikian et al., supra, at 107. Let’s look at the outcomes of this DNA testing, as presented by Dr. Hampikian and his colleagues:

  • The cited article does not even discuss the outcome of the DNA tests in two of the 15 cases because there were no “transcripts or other accurate information on the DNA results available.” Id. Counting two cases on which there is no information as showing that contemporary DNA databases produce false convictions is surprising.
  • “The majority of these cases included proper testimony, with DNA results that excluded the exoneree (9 of the 13 cases). These exclusions were explained away by the state in various ways–perhaps the defendant had an unknown codefendant, the DNA could have come from a consensual sex partner, etc.” Id. Claiming that DNA databases should be constrained because most DNA typing accurately showed that a defendant was not the source of an incriminating sample is inane.
  • “In 5 of the 13 cases, DQ alpha tests included the exonerees as possible contributors. In 4 of these 5 cases, however, more discriminating tests performed postconviction excluded the exonerees. In the remaining case, a second round of DQ alpha testing exonerated the defendant after it was discovered that the original lab analysis was incorrect.” Id. Before the DQA test was retired from forensic DNA testing, it was known to be relatively undiscriminating. See, e.g., Cecelia A. Crouse, Analysis of HLA DQ alpha Allele and Genotype Frequencies in Populations from Florida, 39 J. Forensic Sci. 731 (1994); NFSTC, DNA Analyst Training. Questioning databases stocked with CODIS profiles because a different, bi-allelic locus has different properties is silly.
  • “There were four cases where improper DNA testimony was given at trial. In one, the analyst testified about a match based on DQ alpha testing; however, the analyst did not disclose that it was only a partial match. In another case, the analyst did not provide the proper statistic for the population included by the results of DQ alpha testing.” To be sure, “improper” testimony is deplorable, but it is not clear that the analyst in the first case incorrectly stated the implications of the match or, more importantly for worries about databases, that analysts working with database matches would give incorrect estimates of genotype frequencies.
  • “In a third case, the analyst testified that the DNA matched the exoneree, but failed to disclose an additional exclusionary DNA result.” Withholding exculpatory evidence of any sort–DNA, fingerprint, toolmark, eyewitness, or anything else–is unconscionable and unconstitutional. But it is not much of an argument against inclusive DNA databases.
  • “In the final case, the analyst misinterpreted the results of the testing (which was performed incorrectly–failing to separate the male and female DNA during differential extraction), falsely including the exoneree as a source of the DNA when in fact he should have been excluded.” Yes, if crime-scene DNA is mistyped, and if this error goes unnoticed, a database match could result.

Can DNA databases produce false convictions? Of course they can. Police can commit perjury about DNA evidence, just as they can about other evidence. If there were no databases, it might be slightly harder to fabricate such impressive evidence. DNA evidence, like all evidence, “is subject to human error, bias, and malfeasance.” So are law review articles. (And so are blog postings–corrections are welcome).


1. David. H. Kaye, Have DNA Databases Produced False Convictions?, Forensic Science, Statistics, and the Law, July 7, 2012 (cross-posted to The Double Helix Law Blog); David H. Kaye, Genetic Justice: Potential and Real, Forensic Science, Statistics, and the Law, , June 5, 2011 (cross-posted to The Double Helix Law Blog).

Cross-posted to Forensic Science, Statistics, and the Law.

The Department of Justice and the Definition of Junk DNA

In drafting an amicus brief in Maryland v. King, the case in which the Supreme Court is reviewing the constitutionality of routine collection of DNA before conviction, I decided it is important to clarify the term “junk DNA” if only because it gets tossed around in so many court opinions and briefs. The Department of Justice defines “junk DNA” as “[s]tretches of DNA that do not code for genes.” U.S. Dep’t of Justice, Nat’l Institute of Justice, DNA Initiative Training for Officers of the Court, Glossary, (last visited Dec. 17, 2012). In scientific discourse, however, DNA does not “code for genes.” Rather, parts of genes encode proteins and RNAs. “Junk DNA” is not a synonym for the rest of the genome. It is a provocative and deprecated term for that “fraction of DNA that has little or no adaptive advantage for the organism.” Sean R. Eddy, The C-value Paradox, Junk DNA and ENCODE, 22 Current Biology R898 (2012). Some of what NIJ thinks is “junk DNA” is important to fitness. It is not “junk.”

NIJ’s sloppy treatment of terms like “genes” and “junk” is unfortunate, but in the end I decided the awkward definition was not important enough to snipe at in the brief. On a blog, however, one can be more snippy.

Crossposted to Forensic Science, Statistics, and the Law.

Reconsidering the “Considered Analysis”: How Convincing Are the Cases Cited in the Stay Order in Maryland v. King?

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In King v. State, 42 A.3d 549 (Md. 2012), however, the Maryland Court of Appeals reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state’s interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too “generalized” to support “a warrantless, suspicionless search.” The U.S. Supreme Court reacted forcefully. Even before the Court could consider issuing a writ of certiorari, Chief Justice Roberts stayed the Maryland judgment. His chambers opinion signaled that “given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.”

Some thoughts on the lower court opinions and the issues the Supreme Court will confront are in press in the online Discourse section of the UCLA Law Review. The essay provides a more coherent, complete, and polished presentation than the scattered remarks in earlier postings on this blog. It briefly examines four sets of opinions–the early one from the Virginia Supreme Court in Anderson, the Third Circuit’s en banc opinions in Mitchell, the Ninth Circuit’s panel opinions in Haskell (vacated to make way for en banc review), and the Arizona Supreme Court’s opinion in Mario W. Building on these judicial efforts, the essay outlines the Fourth Amendment questions that a fully considered analysis must answer, identifies questionable treatments of “searches” and “seizures” in the four sets of opinions, and criticizes the creative compromise in Mario W. that allows sample collection but not DNA testing before conviction.

I do not think that there is much room for compromise on the constitutional question. A couple of opinions maintain (in dictum) that preconviction collection is acceptable after, but not before, an indictment or preliminary hearing. That’s another compromise, of sorts, and the Maryland law (as the state has implemented it) postpones DNA collection until after a probable-cause-for-trial hearing. Thus, anything the Supreme Court will say in King on DNA collection as part of the booking procedure will be dictum. It seems to me, however, that once an individual is legitimately detained, either the Fourth Amendment permits the compulsory collection, analysis, and use of DNA–the whole ball of wax–as a biometric identifier for both authentication and criminal intelligence purposes or it does not.  Thus, I am betting that the Court will write a broad opinion upholding DNA database laws at all points after arrest.  But IMHO, it’s a close question.


David H. Kaye, On the “Considered Analysis” of Collecting DNA Before Conviction, 60 UCLA L. Rev. Discourse (forthcoming 2013) (preprint)

David H. Kaye, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection, 91 N.C. L. Rev. Addendum 1 (2012) (preprint)

Crossposted to Forensic Science, Statistics, and the Law.

The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard

Note: This posting updates previous ones that have been deleted. It is current as of November 10, 2012.

Fifteen years ago, Louisiana adopted a law mandating that “[a] person who is arrested for a felony sex offense or other specified offense . . . shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.” As of early 2012, 26 states and the federal government had laws providing for DNA sampling before any conviction is obtained. Most other countries with DNA databases also collect samples on arrest.

The DNA-before-conviction (DNA-BC) laws in the U.S. had a placid childhood, with surprisingly few challenges to their constitutionality. This period of calm is over. In contrast to their older brother, laws mandating DNA collection after conviction (DNA-AC), which have been upheld in scores of cases, DNA-BC laws have provoked conflicting constitutional opinions. Yesterday, the Supreme Court voted to take up the issue in its 2012-2013 Term.

This posting presents a scoreboard on the litigation and scholarly commentary to date. If any players or contests have been omitted, I hope that readers will correct those omissions by leaving a comment. The law review articles listed in the table do not include ones on DNA-AC. Authors who have contended that these databases are unconstitutional would reach the same conclusion for a database that includes arrestees, but the lower courts have resoundingly rejected their analyses. Therefore, little would be gained by keeping track of the many articles on convicted-offender databases.

The tables make the point that there is no clear consensus among lower courts on the constitutionality of taking DNA samples during a custodial arrest (or at another point before conviction) with the intention of running database searches (in the absence of a warrant and probable cause to believe that the search will produce a hit in the database).

Table 1. Case law

Appellate: State Supreme Courts (1.5-1.5)

  • Mario W. v. Kaipio, Commissioner, 281 P.3d 476 (Ariz. 2012) (state arrestee law for juveniles constitutional insofar as it allows sampling as a booking procedure, but pre-conviction analysis of the sample is unconstitutional under a totality-of-the-circumstances standard and an analogy to searching containers)
  • King v. State, 42 A.3d 549 (Md. 2012) (state law requiring sampling after arraignment unconstitutional “as applied” under “totality of the circumstances” balancing test), cert. granted sub nom. Maryland v. King, No. 12-207 (U.S. Nov. 9, 2012)
  • Anderson v. Commonwealth, 650 S.E.2d 702 (Va. 2007) (state arrestee law upheld under unspecified balancing test and analogy to fingerprinting as a booking procedure)
  • Related case: State v. Franklin, 76 So.3d 423 (La. 2011) (no search warrant required to take a DNA sample from a murder defendant for use in the murder investigation because he had to submit a sample “as a routine incident of booking” anyway)

Appellate: State Intermediate Courts (opinions not reviewed by higher courts) (0-2)

  • People v. Buza, 129 Cal.Rptr.3d 753 (Cal. Ct. App. 2011) (unconstitutional under balancing tests), rev. granted, 262 P.3d 854 (Cal. 2011)
  • In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006) (state arrestee law struck down as per se unreasonable without probable cause and a warrant)

Appellate: Federal Courts (2-0)

  • United States v. Mitchell, 652 F.3d 387 (3d Cir. 2011) (en banc) (federal arrestee law upheld under “totality of circumstances” balancing test)
  • Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012) (state arrestee law upheld under “totality of circumstances” balancing test), reh’g en banc granted, 686 F.3d 1121 (9th Cir. 2012)
  • United States v. Pool, 621 F.3d 1213 (9th Cir. 2010) (federal arrestee law upheld under “totality of circumstances” balancing test), vacated as moot, 659 F.3d 761 (9th Cir. 2011) (en banc)
  • Related case: Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009) (an arrest does not justify DNA sampling without an applicable statute)

Trial Courts: Federal (not reviewed by higher courts) (1-1)

  • United States v. Thomas, No. 10-CR-6172 CJS, 2011 WL 1627321 (W.D.N.Y. Apr. 27, 2011) (federal arrestee law upheld under “special needs” balancing test), dismissed, No. 11-1742 (2d Cir. Sept. 20, 2011), ECF No. 43.
  • Amended Order Denying the Government’s Motion to Compel DNA Samples, United States v. Frank, No. CR-092075-EFS-1(E.D. Wash. Mar. 10, 2010), available at (applying totality balancing to a limited list of interests to find compulsory collection before conviction unreasonable)
  • Related case: United States v. Purdy, No. 8:05CR204, 2005 WL 3465721 (D. Neb. 2005) (forcibly taking a buccal swab from an arrestee violates Fourth Amendment in the absence of a statute providing for a uniform and limited system of sampling)

Trial Courts: Federal (reviewed by higher courts) (2-1)

  • United States v. Mitchell, 681 F.Supp.2d 597 (W.D.Pa. 2009) (federal law held unenforceable), rev’d, 652 F.3d 387 (3d Cir. 2011) (en banc)
  • United States v. Pool, 645 F.Supp.2d 903 (E.D.Cal. 2009) (federal arrestee law upheld under “totality of circumstances” balancing test), aff’d, 621 F.3d 1213 (9th Cir. 2010), affirming opinion vacated as moot, 659 F.3d 761 (9th Cir. 2011) (en banc)
  • Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009) (denying a preliminary injunction against the enforcement of California’s arrestee sampling law in large part because the balance of interests establishes that the requirement is reasonable), aff’d sub nom. Haskell v. Harris, 669 F.3d 1049 (9th Cir.), reh’g en banc granted, 686 F.3d 1121 (9th Cir. 2012)

Table 2. Law Review Articles and Notes


  • D.H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol’y 455-508 (2001) (a statute with sufficient protections to confine the government to identifying information is constitutional under the special needs exception)
  • Tracey Maclin, Is Obtaining an Arrestee’s DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?, 34 J.L. Med. & Ethics 165, 178-82 (2006) (predicting that the Supreme Court will uphold taking DNA from arrestees under a balancing test but stating that it should reject the practice as per se unreasonable)
  • D. H. Kaye, Who Needs Special Needs? On the Constitutionality of Collecting DNA and Other Biometric Data from Arrestees, 34 J.L. Med. & Ethics 188 (2006) (proposing a “biometric information exception” to the warrant requirement)
  • Brian Gallini, Step Out of the Car: License, Registration, and DNA Please, 62 Ark. L. Rev. 475 (2009) (Arkansas law unconstitutional because it does not require a judicial finding of probable cause arrest, contains inadequate safeguards to protect the samples and records, and because it does not fall within an established exception to the warrant requirement)
  • Kevin Lapp & Joy Radice, A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, 90 N. Car. L. Rev. Addendum 157 (2012) (pre-conviction DNA extraction should be permitted only after a neutral third-party finding of probable cause and DNA samples should be destroyed)
  • David H. Kaye, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection, 91 N.C. L. Rev. Addendum 1 (2012) (a formal finding of probable cause for an unrelated arrest is not constitutionally required)
  • David H. Kaye, On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Discourse, (forthcoming March 2013)
  • David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, U. 15 Pa. J. Const. L. No. 4 (forthcoming 2013)
  • Related article: Robert Molko, The Perils of Suspicionless DNA Extraction of Arrestees Under California Proposition 69: Liability of the California Prosecutor for Fourth Amendment Violation? The Uncertainty Continues in 2010, 37 W. St. U. L. Rev. 183 (2010) (reaching no conclusions)


  • Martha L. Lawson, Note, Personal Does Not Always Equal “Private”: The Constitutionality of Requiring DNA Samples from Convicted Felons and Arrestees, 9 Wm. & Mary Bill Rts. J. 645 (2001) (the government’s interest in mandatory testing of all those arrested outweighs individuals’ privacy interests)
  • Rene� A. Germaine, Comment, “You Have the Right to Remain Silent. . . You Have No Right to Your DNA” Louisiana’s DNA Detection of Sexual and Violent Offender’s Act: An Impermissible Infringement on Fourth Amendment Search and Seizure, 22 J. Marshall J. Computer Info. L. 759 (2004) (unconstitutional under balancing test other than special needs)
  • Robert Berlet, Comment, A Step Too Far: Due Process and DNA Collection in California after Proposition 69, 40 U.C. Davis L. Rev. 1481 (2007) (with certain modifications, arrestee DNA sampling as provided for under California law would be constitutional)
  • John D. Biancamano, Note, Arresting DNA: The Evolving Nature of DNA Collection Statutes and Their Fourth Amendment Justifications, 70 Ohio St. L.J. 619 (2009) (unconstitutional under special needs and totality of the circumstances tests)
  • Corey Preston, Note, Faulty Foundations: How the False Analogy to Routine Fingerprinting Undermines the Argument for Arrestee DNA Sampling, 19 Wm. & Mary Bill Rts. J. 475 (2010)
  • Ashley Eiler, Note, Arrested Development: Reforming the Federal All-Arrestee DNA Collection Statute to Comply with the Fourth Amendment, 79 Geo. Wash. L.Rev. 1201, 1220 (2011)
  • Lauren N. Hobson, Note, North Carolina’s Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010, 89 N.C. L. Rev. 1309 (2011) (unconstitutional because no existing exception to the Warrant Clause applies)
  • Kimberly A. Polanco, Note, Constitutional Law-The Fourth Amendment Challenge to DNA Sampling of Arrestees Pursuant to the Justice for All Act of 2004: A Proposed Modification to the Traditional Fourth Amendment Test of Reasonableness, 27 U. Ark. Little Rock L. Rev. 483 (2005) (constitutional under a balancing test)
  • Related note: Jacqueline K. S. Lew, Note, The Next Step in DNA Databank Expansion? The Constitutionality of DNA Sampling of Former Arrestees, 57 Hastings L.J. 199 (2005) (unconstitutional as applied to “former arrestees”)


Martin Kaste, Wash. Lawmakers Fight for DNA Sampling at Arrest, All Things Considered, Feb. 28, 2012,, accessed Aug. 17, 2012

15 La . Rev. Stat. � 609(A)(1) (“A person who is arrested for a felony sex offense or other specified offense, including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses on or after September 1, 1999, shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.”), derived from Act No. 737, approved July 9, 1997, and amended in 2003 (adding the phrase “including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses”)

The Dictionary and the Database: Thoughts on State v. Emerson

Last week, the Supreme Court of Ohio held that the state may use, in a completely unrelated case, information derived from a DNA sample acquired pursuant to a search warrant without seeking a new warrant. This result is not novel–indeed, a contrary outcome would have departed from the law elsewhere.

Nevertheless, the opinion in State v. Emerson presents a new wrinkle. After Dajuan Emerson was acquitted of the 2005 rape of a 7-year-old girl, his DNA profile somehow resided in the state’s convicted-offender database. Then, in 2007, 37-year-old Marnie Macon was stabbed 74 times in her apartment. (Ludlow 2012). Police recovered blood from a door handle. The DNA profile from this crime-scene sample (often called a “forensic sample”) was run against the state database. It matched Emerson’s profile from 2005. After the trial court denied a motion to suppress this match, the case went to trial and the jury found Emerson guilty of aggravated murder (and tampering with evidence). An Ohio District Court of Appeals affirmed, and the state supreme court affirmed that judgment.

The obvious questions are why the 2005 profile entered the convicted-offender database and whether the Fourth Amendment’s exclusionary rule for unreasonable searches or seizures applies to the resulting cold hit. The Ohio Supreme Court’s analysis of these issues is a little odd. I shall quickly run through the opinion, indicating the oddities.

What is an allele?

The first peculiarity is ultimately of no moment, but I’ll mention it anyway because it shows the continuing inability of too many judges (or the recent law school graduates who are their clerks) to consult suitable scientific references. According to the opinion, “[a] DNA profile consists of a series of numbers that represent different alleles that are present at different locations on the DNA” and “[a]n allele is defined as ‘either of a pair of genes located at the same position on both members of a pair of chromosomes and conveying characters [sic] that are inherited in accordance with Mendelain [sic] law.’ Webster’s New World Dictionary, Third College Edition 36 (1988).”

The alleles used in modern DNA databases are not parts of genes. (Well, some of them are meaningless variations within introns, but even those do not “convey characters” as the classical definition from Webster’s would require.) Perhaps judges should not be criticized for thinking that the word “allele” always refers to genes. To denote variations in DNA sequences that are not the allelotypes of genes, forensic scientists themselves borrowed from the terminology for genes, inviting such confusion. (Kaye 2010). But there are many reasonably accurate explanations of forensic STR “alleles” in the legal and forensic science literature. Consequently, there is little excuse using the inapt dictionary definition. Fortunately, this error does not affect anything else in the opinion.

How did Emerson’s DNA profile get into a CODIS database?

The justices evinced little concern about the statutory violation that led to the fateful match in the case. In fact, the unanimous opinion prominently denies that putting the profile of someone who was not convicted into the state and national databases (SDIS and NDIS) for future trawls departed from Ohio’s convicted-offender law.

The court reached this counter-intuitive result by relying on Black’s Law Dictionary:

Appellant is correct that R.C. 2901.07 does not support the inclusion of his profile in CODIS. However, the same cannot be said for R.C. 109.573. The superintendent of BCI is empowered to “establish and maintain a DNA database.” R.C. 109.573(B)(1)(b). “DNA database” is defined in part as “a collection of DNA records from forensic casework.” R.C. 109.573(A)(3). “Forensic” is defined as “[u]sed in or suitable to courts of law or public debate.” Black’s Law Dictionary 721 (9th Ed.2009). In this case, the police lawfully obtained the DNA sample in the course of the 2005 rape investigation. Therefore, the profile obtained from the sample is a record from forensic casework and is properly maintained in CODIS. Moreover, we note that neither R.C. 109.573 nor 2901.07 require that the state, on its own initiative, remove the DNA profile of a person who was acquitted at trial.

Again, the failure to consult relevant sources for the actual terminology in the field is a gross mistake. Ohio Revised Code � 109.573(3) defines “DNA database” as

a collection of DNA records from forensic casework or from crime scenes, specimens from anonymous and unidentified sources, and records collected pursuant to sections 2152.74 and 2901.07 of the Revised Code and a population statistics database for determining the frequency of occurrence of characteristics in DNA records.

(This is the current version. I am assuming the words are the same as they were in 2007.) The “records collected” under the enumerated sections pertained to “adjudicated delinquents” and to convicted offenders–not to mere suspects. The phrase “forensic casework or crime-scene samples” refers to DNA of unknown origin–from vaginal swabs, clothing, property, etc. As the FBI explains, “the DNA data that may be maintained at NDIS [consists of profiles from] convicted offender, arrestees, legal, detainees, forensic (casework), unidentified human remains, missing persons and relatives of missing persons.” (FBI, undated). There is no authorized category for sundry individuals whose DNA profiles have become known to the police for miscellaneous reasons. Ohio did not take DNA samples from arrestees or detainees until 2011. Under the Emerson court’s peculiar reading of the statute, police in Ohio could use the “abandoned DNA” ploy to acquire a profile from a person even without a warrant and upload it to the state and national databases.

The court’s theory that the Ohio legislature used the phrase “forensic casework” to cover every sample and profile “[u]sed in or suitable to courts of law or public debate” is astonishing. A convicted-offender database system has one set of so-called “forensic” profiles (that could link perpetrators to crimes) and another set of convicted-offender profiles (who might be found to be the perpetrators of the unsolved solves). The “forensic” profiles come from the unknown perpetrators of the crimes. They can be matched, if possible, against the convicted offenders’ profiles (and among one another to identify serial crimes). Neither they nor the convicted-offender database was intended to house profiles from specific suspects who never were found guilty of a qualifying crime. Thus, the state had no convincing legal basis for uploading Emerson’s profile to SDIS and NDIS–and the court should not have approved of such misconduct.

Nonetheless, the statutory violation does not justify excluding the cold hit under the Fourth Amendment. The U.S. Supreme Court has not been kind to the exclusionary rule in recent years. As Emerson observes, it has held that a violation of a state statute does not make a search constitutionally unreasonable.

Did Emerson lack standing to complain of a Fourth Amendment violation?

The Emerson opinion contains a third error. The court holds “that a person does not have standing to object to the retention of his or her DNA profile or to the profile’s use in a subsequent criminal investigation.” This misrepresents the meaning of “standing.” In the Fourth Amendment context, the standing requirement bars “attempts to vicariously assert violations of the Fourth Amendment rights of others.” United States v. Salvucci, 448 U.S. 83, 86 (1980). Thus, in Salvucci, police searched an apartment rented by a defendant’s mother and found checks that her son had stolen from the mails. In his prosecution for possession of stolen mail, the son lacked standing to complain the search violated the mother’s interest in the privacy of her apartment.

In Emerson, the defendant never argued that the cold hit violated someone else’s rights. He argued that it violated his right to be free from unreasonable searches because he had a legitimate expectation of privacy in his DNA profile retained by the state. He surely had standing to raise that claim, and the court references to “standing” are superfluous and confused.

Was the retention of the profile and the trawl of the database a search or seizure?

At last, we come to the dispositive issue in the case–was any Fourth Amendment interest of Emerson’s violated by the retention of his profile and the trawl of the database? The court held–correctly, I believe–that Emerson had no such interest. The state acquired the DNA sample in 2005 pursuant to a search warrant of unchallenged validity. Laboratory analysis of the sample was not a separate search, but the very reason for the search warrant. Simply keeping the identifying profile and looking to see whether it matched new profiles in the “forensic index,” as the FBI calls them, does not rise to the level of new search. Once the government legitimately acquires information pursuant to a search warrant, it need not toss out and forget about that information if it cannot secure a conviction. In later investigations and prosecutions, it can use what it finds in the fully authorized and entirely legitimate search.

Obviously, the situation would be otherwise if the original search were unreasonable. Then the evidence should be excluded to vindicate the defendant’s right to be free from unreasonable searches and seizures. But it would be worse than pointless to exclude, on constitutional grounds, legitimately acquired evidence of guilt. This is the sound core of the reasoning in Emerson. Whether the defendant was acquitted in the case that generated the search warrant, whether  he was convicted then, or whether he never was prosecuted in that case makes no difference. There is no constitutional reason to exclude evidence from a reasonable search.

In Boroian v. Mueller, a case that Emerson overlooks, the U.S. Court of Appeals for the First Circuit held that continued trawls of a database may continue even after an offender has completed his sentence. Emerson extends the reasoning of Boroian to an individual whose DNA profile should not have been in the database in the first place. But because the objection in that respect is entirely statutory, it does not change the result.

Of course, one can question the conclusion that trawling a database is not a separate search, and some commentators as well as some recent opinions on the constitutional of pre-conviction DNA sampling, analysis, and trawling have spoken of different steps in the process as if they were independent searches, each of constitutional magnitude. For reasons stated in Kaye (2011), however, I doubt that these claims are tenable. Despite the terminological and conceptual flaws in the opinion in Emerson, the Ohio Supreme Court reached the correct result.


United States v. Salvucci, 448 U.S. 83, 86 (1980)

Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010)

State v. Emerson, No. 2011-0486 (Ohio Nov. 1, 2012) (Slip Opinion No. 2012-Ohio-5047)

FBI, Frequently Asked Questions (FAQs) on the CODIS Program and the National DNA Index System,

David H. Kaye, The Double Helix and the Law of Evidence (2010)

David H. Kaye, DNA Database Trawls and the Definition of a Search in Boroian v. Mueller, 97 Va. L. Rev. in Brief 41 (2011)

Randy Ludlow, Ohio Suspects’ DNA Can Be Saved for Later Cases, Court Rules, Columbus Dispatch, Nov. 6, 2012

Cross-posted to Forensic Science, Statistics, and the Law.