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]
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]
Yesterday, Justice Stevens addressed the American Constitution Society. He took the unusual step of stating how he would have voted on the constitutionality of collecting DNA from arrestees and using it, not necessarily as proof of the individual’s true identity, but as an investigative tool to link the arrestee to unrelated crimes. This is, of course, the use that split the Court in this month’s decision in Maryland v. King.
Below I offer a condensed and annotated version of Justice Stevens’ analysis. Although I do not agree with every aspect of his discussion, I think he got it basically right, and I take issue with the surprising hyperbole that already has appeared in The Atlantic. … cont’d on the FSSL Blog
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.
New York Times Supreme Court correspondent Adam Liptak recently tweaked the noses of the justices who upheld the constitutionality of routinely taking DNA from individuals arrested of assault, homicide and burglary. See Cited by a Justice, But Feeling Less Than Honored, N.Y. Times, June 11, 2013, at A15.
The Court’s opinion, penned by Justice Kennedy, enumerated the arguable benefits of routine DNA collection before conviction, concluding with with the observation that “[f]inally, in the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense.” To support this conclusion, Justice Kennedy added a quotation from the important and gripping book Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted. As quoted in the justice’s opinion, Barry Sheck, Peter Neufeld, and Jim Dwyer, wrote that: “[P]rompt [DNA] testing . . . would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of . . . innocent people.”
Mr. Liptak noted that this quotation was not “especially punctilious.” One might think that the problem is that the quotation speaks to preventing erroneous convictions, whereas the sentence it is supposed to support is about “freeing a person wrongfully imprisoned.” (Emphasis added.) But Mr. Liptak’s point, which turns out to be related, is that “[t]hose first three dots covered a lot of ground. They took the place of more than six sentences and suggested a different point than the one the authors were making.”
(Continued on the FSSL Blog).
There are lots of criticisms that one can make of the majority opinion in Maryland v. King — and even more that apply to the dissent — but, contrary to one commentator, I do not think that the Court’s reference to the use of anthropometrics as employed in the late 1800s and early 1900s for authenticating the identities of prisoners is particularly problematic. … Find more at http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-no-3-bertillonage-as.html.
The more I cogitate on the opinions in Maryland v. King, the more I find the dissenting opinion irritating and the majority opinion disappointing. But explaining precisely why is not so easy. Meanwhile, I recommend the following early but penetrating comments on the opinions:
- Hank Greely, Maryland v. King – The Coming California Sequels, Law and Biosciences Blog, June 8, 2013
- —– , The Supreme Court Decision in Maryland v. King, Law and Biosciences Blog, June 3, 2013
- Richard Lempert, Maryland v. King: An Unfortunate Supreme Court Decision on the Collection of DNA Samples, Brookings Up Front, June 6, 2013
The threshold question in Maryland v. King, as in any Fourth Amendment case, is whether a search occurred. For a discussion of the answer under the Supreme Court’s two-track definition and some of the implications of this definition for fingerprints and photographs, see
today’s FSSL blog.
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.
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.
It is time to sum up and read the tea leaves that are the transcript of the February 26th oral argument in Maryland v. King. Previous postings concerned these topics:
- Whether taking DNA profiles of arrestees is distinguishable from acquiring them from the general population;
- Whether deriving information from database trawls that could inform pretrial release decisions and conditions can constitute a special need for warrantless DNA acquisition now or in the future;
- Whether DNA profiles are distinguishable from fingerprints on the theory that collecting fingerprints is not even a search;
- Whether DNA samples are distinguishable from fingerprints because DNA samples contain more personal information;
- Whether Kyllo‘s analysis of thermal imaging of a home applies to DNA profiling;
- Whether the Court’s precedents show it is unwilling to trust the government;
- How Skinner, Greenwood, and Davis (4th Cir. 2012) affect the claim that a laboratory analysis limited to identifying features is a search in its own right.
At least some of the Justices appeared to be searching for a theory that would distinguish routine DNA collection and analysis before conviction (DNA-BC) for arrestees from the DNA-BC for everyone in the population. But why? � read more �