Tag Archives: DNA on arrest

Get Serious: The US Department of Justice’s Amicus Brief in Haskell v. Harris

As the U.S. Court of Appeals for the Ninth Circuit returns to the question of the constitutionality of California’s DNA database law, the United States has weighed in with an amicus brief. It is worried (or should be) that the en banc panel will take too seriously the Supreme Court’s references to “serious offenses” in Maryland v. King, the DNA-on-arrest case decided last June. The Maryland law that the Supreme Court narrowly upheld authorizes DNA collection for violent felonies, burglaries, and attempts to commit those crimes. The California law under attack in Haskell is broader, applying to all felony arrests including those that would seem rather petty to the casual observer. (The federal law is broader still, encompassing every offense, no matter how trivial, for which a person is dragged into custody.)

Consequently, it comes as no surprise that the federal government wants the Ninth Circuit to read King expansively, whereas the ACLU, which represents the plaintiffs in Haskell, is pressing for the narrowest possible reading. … [read more on FSSL]

Maryland v. King: When Being Smart and Witty Isn’t Enough

Justice Scalia’s dissenting opinion in Maryland v. King, the arrestee-DNA case, has been praised as “one of the best Fourth Amendments dissents, ever” and his “smartest, wittiest ruling of all time” (Rosen 2013). But one man’s wit is another’s vitriol, and according to another law professor, the opinion is “dripping with contempt” (Feldman 2013). Stylistically, this opinion is more evidence that the art of writing with courtesy as well as conviction has been lost. Substantively, what makes this dissent “one of the best”–other than one’s feelings about which result is correct? It cannot be that the opinion sets forth some enduring principle for understanding and applying the Fourth Amendment…. [read more]

Maryland v. King: “Quite a Worldview”

Supreme Court watchers took note of an article by an astute reporter on “an irony” in the fact that Justice Kennedy’s opinion for the Court in Maryland v. King cited Actual Innocence, an important book about DNA exonerations. See A Digression on Ellipses, Actual Innocence, and Dr. Mengele, June 13, 2013.

But one of the book’s authors, Peter Neufeld, was “feeling less than honored” by this nod from the Court:

Part of the problem was what he called an irony. [�] In 2009, Justice Kennedy joined the majority opinion in a 5-to-4 decision that said prisoners had no constitutional right to DNA testing that might prove their innocence. Mr. Neufeld, who founded the Innocence Project with Barry Scheck, represented the prisoner on the losing end of that case, District Attorney’s Office v. Osborne.

But last week, Mr. Neufeld said, Justice Kennedy concluded that “it’s O.K. for the state to take DNA, without a warrant, from mere arrestees, who may ultimately have their charges dismissed.” [�] The combination of the two decisions baffled Mr. Neufeld. “That is quite a worldview,” he said of a jurisprudence that allows nonconsensual testing of people presumed innocent but denies voluntary testing to people who insist that they really are innocent.

Adam Liptak, Cited by a Justice, But Feeling Less Than Honored, N.Y. Times, June 11, 2013, at A15.

This juxtaposition of King and Osborne is “quite a worldview,” but it is not an accurate description of the Court’s jurisprudence on DNA evidence. … continued on the FSSL Blog.

Maryland v. King: More to Come

Today the Supreme Court, in a rather staid opinion by Justice Kennedy, joined by Chief Justice Roberts and Justices Breyer and Thomas, upheld the Maryland law that requires individuals arrested and detained for major crimes to submit DNA samples that can be checked against a database of DNA profiles from unsolved crimes. Justice Scalia, wrote a bitter and sarcastic dissent for himself and Justices Ginsburg, Kagan, and Sotomayor.

I think the question is more delicately balanced than either opinion indicates. For more detailed comments, see the Forensic Science, Statistics, and the Law blog.

References

Maryland v. King, No. 12-207 (U.S. June 3, 2013).

Kaye, David H. 2013. “A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases.” University of Pennsylvania Journal of Constitutional Law 15(4): 1095-1160.