Introduction
1. Forensic DNA Analysis
1. Committee on DNA Forensic Science, National Academy of Sciences, The Evaluation of Forensic DNA Evidence (Washington, DC: National Academy Press, 1996), 36.
2. Barry Commoner, “Unraveling the DNA Myth,” Harper’s 304, no. 1821 (February 2002): 44.
3. Saurabh Asthana, William S. Noble, Gregory Kryukov, Charles E. Grant, Shamil Sunyaev, and John A. Stamatoyannopoulos, “Widely Distributed Noncoding Purifying Selection in the Human Genome,” Proceedings of the National Academy of Sciences of the United States of America (PNAS) 104 (July 17, 2007): 12410–12415.
4. John M. Greally, “Encyclopedia of Humble DNA,” Nature 447 (June 14, 2007): 782–783.
5. Colin Nickerson, “DNA Study Challenges Basic Ideas in Genetics: Genome ‘Junk’ Appears Essential,” Boston Globe, June 14, 2007, A1.
7. William C. Thompson and Dan E. Krane, “DNA in the Courtroom,” in Psychological and Scientific Evidence in Criminal Trials, ed. Jane Campbell Moriarty (Minneapolis: West Publishing, 2003), 11-4, 11-5.
9. L. A. Zhivotovsky, “Population Aspects of Forensic Genetics,” Russian Journal of Genetics 42, no. 10 (2006): 1426–1436.
10. William C. Thompson, Simon Ford, Travis Doom, Michael Raymer, and Dan Krane, “Evaluating Forensic DNA Evidence,” Champion (April 2003): 23.
11. Erin Murphy, “The Art in the Science of DNA: A Layperson’s Guide to the Subjectivity Inherent in Forensic DNA Typing,” Emory Law Journal 58 (2008): 496–512, quotation at 503.
12. Michael R. Bromwich (Independent Investigator), “Final Report of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room,” June 13, 2007, http://www.hplabinvestigation.org (accessed May 22, 2010), quotation at 5.
13. Simon A. Cole, “How Much Justice Can Technology Afford? The Impact of DNA Technology on Equal Criminal Justice,” Science and Public Policy 34, no. 2 (March 2007): 95–107, quotation at 95.
14. Michael Lynch, Simon A. Cole, Ruth McNally, and Kathleen Jordan, Truth Machine: The Contentious History of DNA Fingerprinting (Chicago: University of Chicago Press, 2008), 23.
2. The Network of U.S. DNA Data Banks
1. John M. Butler, Forensic DNA Typing (Burlington, MA: Elsevier, 2005), 445.
2. Stephen R. Reinhardt, Dissenting Opinion, United States v. Kincade, U.S. Court of Appeals, Ninth Circuit, No. 02-50380, D.C. No. CR-93-00714-RAG-01, filed August 18, 2004.
4. Dwight E. Adams, deputy assistant director, Laboratory Division, Federal Bureau of Investigation, “The FBI’s DNA Program,” testimony before the House Committee on Government Reform, Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations, June 12, 2001, Attachment A, http://www.fbi.gov/congress/congress01/dwight061201.htm (accessed February 9, 2007).
5. M. Dawn Herkenham, “Retention of Offender DNA Samples Necessary to Ensure and Monitor Quality of Forensic DNA Efforts: Appropriate Safeguards Exist to Protect DNA Samples from Misuse,” Journal of Law, Medicine and Ethics 34, no. 2 (Summer 2006): 380–384, at 380.
6. Dwight E. Adams, deputy assistant director, Laboratory Division, Federal Bureau of Investigation, “The FBI’s DNA Program,” testimony before the House Committee on Government Reform, Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations, June 12, 2001, http://www.fbi.gov/congress/congress01/dwight061201.htm (accessed April 19, 2010).
7. Herkenham, “Retention of Offender DNA Samples,” 382.
8. Butler, Forensic DNA Typing, 439.
9. Adams, “The FBI’s DNA Program.”
10. 42 U.S.C. 
14135(a); see also Public Law No. 107-56 503, 115 Stat. 272, 364 (2001).
11. See 42 U.S.C. 14135(a)(1).
14. Public Law No. 109-162, Section 1004.
15. Department of Justice, “DNA-Sample Collection and Biological Evidence Preservation in the Federal Jurisdiction,” Federal Register 73, no. 238 (December 10, 2008): 74932–74943.
17. Department of Justice, “DNA-Sample Collection Under the DNA Fingerprint Act of 2005 and the Adam Walsh Child Protection and Safety Act of 2006 (Proposed Rule),” Federal Register 73, no. 76 (April 18, 2008): 21083–21087.
20. J. Luttman, FBI Laboratory, DNA Unit 1, Federal Convicted Offender Program, “Implementation of Database Expansion” (presentation for Annual CODIS Conference, Federal Bureau of Investigation, October 24, 2006).
21. Department of Justice, “DNA-Sample Collection Under the DNA Fingerprint Act of 2005,” 21084.
23. American Civil Liberties Union, “Comments on RIN 1105-AB24 Proposed Rule, DNA-Sample Collection Under the DNA Fingerprint Act of 2005 and the Adam Walsh Child Protection and Safety Act of 2006,” prepared by Caroline Fredrickson, Michael Macleod-Ball, Tania Simoncelli, and Michael Risher, May 19, 2008, http://www.aclu.org/racial-justice_prisoners-rights_drug-law-reform_immigrants-rights/aclu-comments-justice-department-r (accessed April 18, 2010).
27. Steven Messner, “Comment: Law Enforcement DNA Database: Jeopardizing the Juvenile Justice System Under California’s Criminal DNA Collection Law,” LaVerne Law Review: Journal of Juvenile Law 28 (2007): 159–173, quotations at 172–173.
28. Haskell v. Brown, Class Action Complaint for Declaratory & Injunctive Relief (submitted on behalf of Plaintiffs), United States District Court for the Northern District of California, filed October 7, 2001, ¶ 6 (citing California Department of Justice).
30. South Carolina General Assembly, 117th Session, 2007–2008, passed H.3304; ratified June 12, 2007. Under the bill, section 2, A. Section 23-3-620 of the 1976 Code of South Carolina would have been amended to read: “Section 23-3-620. (A) Following a lawful custodial arrest or a direct indictment for a felony offense or an offense that is punishable by a sentence of five years or more, either of which is committed in this State, the person arrested must provide a saliva or tissue sample from which DNA may be obtained for inclusion in the State DNA Database.” http://www.scstatehouse.gov/sess117_2007-2008/bills/3304.doc (accessed May 23, 2010).
31. Governor Mark Sanford, South Carolina, letter to Robert W. Harrell Jr., Speaker of the House of Representatives, South Carolina, June 18, 2007.
32. Kevin Johnson, “DNA Not Kept in Half of States,” USA Today, August 5, 2008.
33. Betty Layne DesPortes, Richmond, VA, lawyer with Benjamin and Des-Portes, P.C., personal communication with Sheldon Krimsky, July 27, 2009.
34. Maria Gold, “Letters to Inform 400 Felons of DNA Evidence Retesting,” Washington Post, August 7, 2008, B04.
35. Maria Gold, “Va. DNA Project Is in Uncharted Territory,” Washington Post, August 17, 2008, C01.
3. Community DNA Dragnets
1. Joseph Wambaugh, The Blooding (New York: Morrow, 1989), 168.
2. Aaron B. Chapin, “Arresting DNA: Privacy Expectations of Free Citizens Versus Post-convicted Persons and the Unconstitutionality of DNA Dragnets,” Minnesota Law Review 89 (June 2005): 1842–1875, quotation at 1867.
4. Kevin Bersett, “Victims Challenge Police Use of Controversial DNA Dragnet,” New Standard (Syracuse, NY), September 27, 2004.
6. Samuel Walker, “Police DNA ‘Sweeps’ Extremely Unproductive” (report by the Police Professional Initiative, Department of Criminal Justice, University of Nebraska, Omaha, September 2004).
8. Mark A. Rothstein and Meghan K. Talbott, “The Expanding Use of DNA in Law Enforcement: What Role for Privacy?” Journal of Law, Medicine & Ethics 34 (Summer 2006): 153–162, reported that the German DNA dragnet collected samples from 16,400 men. See page 156. Science reported that 18,000 men were tested. See “Gene Hunt,” Science 313, no. 5789 (August 18, 2006): 897.
9. “Random Samples,” Science 313, no. 5789 (August 18, 2006): 897.
10. A. R. T. Bates, M. Hequet, and R. Laney, “The DNA Dragnet,” Time (January 24, 2005), 39–40.
11. Carole McCartney, Forensic Identification and Criminal Justice: Forensic Science, Justice and Risk (Cullompton, UK: Willan Publishing, 2006), 5.
12. Chapin, “Arresting DNA,” 1858.
13. Adam M. Gershowitz, “The iPhone Meets the Fourth Amendment,” UCLA Law Review 56 (October 2008): 27–58, quotation at 27.
14. Glynn Wilson, “In Louisiana, Debate Over a DNA Dragnet,” Christian Science Monitor, February 21, 2003.
15. Kohler v. Englade, 470 F. 3d 1104, No. 05-30541, U.S. Court of Appeals, Fifth Circuit, November 21, 2006.
16. Rosemary Roberts, “Open Your Mouth for a DNA Swab,” News and Record (Greensboro, NC), January 14, 2005.
17. Jeffrey S. Grand, “The Blooding of America: Privacy and the DNA Dragnet,” Yeshiva University Cardozo Law Review 23 (2002): 2277–2323, quotation at 2307.
18. Ibid., quotation at 2317.
20. Associated Press, “DNA Dragnet Raises Concern,” St. Petersburg Times, June 17, 2003.
21. Kathy Marks, “Christmas Day Killer Trapped by DNA Test,” Independent (London), February 10, 1998.
22. Stephen Wright, “Trapped by a DNA Dragnet,” Daily Mail, February 10, 1998.
23. Sepideh Esmaili, “Searching for a Needle in a Haystack: The Constitutionality of Police DNA Dragnets,” Kent Law Review 82 (2007): 495–523, quotation at 520.
25. Rothstein and Talbott, “The Expanding Use of DNA in Law Enforcement,” 156.
26. Wilson, “In Louisiana, Debate Over a DNA Dragnet.”
27. Marc Rotenberg, Marcia Hoffman, and Melissa Ngo, Electronic Privacy Information Center, Brief of Amicus Curiae, Shannon Kohler v. Pat Englade, et al., U.S. Court of Appeals, Fifth Circuit, Case No. 3:03-cv-00857-JJB-CN (2005), 6–7.
28. Maria Gold, “Police in Charlottesville Suspend ‘DNA Dragnet,’” Washington Post, April 15, 2004, B01.
29. Lorraine M. Blackwell, “Virginia U. Suspends DNA Dragnet Locating Serial Rapist,” The Daily Texan, May 4, 2004.
30. Esmaili, “Searching for a Needle in a Haystack,” 516.
31. Grand, “Blooding of America,” quoted at 2301.
32. Walker, “Police DNA ‘Sweeps’ Extremely Unproductive.”
33. Ibid., 3. As of 2008 there were at least 20 DNA dragnets conducted throughout the United States since 1990. “Kohler v. Englade: The Unsuccessful Use of DNA Dragnets to Fight Crime,” http://epic.org/privacy/kohler (accessed March 26, 2010).
34. Walker, “Police DNA ‘Sweeps’ Extremely Unproductive,” 14–15.
36. Chapin, “Arresting DNA,” 1863.
37. Frederick R. Bieber and David Lazer, “DNA Sweep Must Be Accompanied by Informed Consent,” Provincetown Banner, January 20, 2005.
39. Rotenberg, Hoffman, and Ngo, Brief of Amicus Curiae.
42. Rotenberg, Hoffman, and Ngo, Brief of Amicus Curiae, 7.
43. Chapin, “Arresting DNA,” 1859, quoting Judge Stephen Reinhardt.
4. Familial DNA Searches
1. Daniel J. Grimm, “The Demographics of Genetic Surveillance: Familial DNA Testing and the Hispanic Community,” Columbia Law Review 107 (June 2007): 1164–1194, quotation at 1164.
2. Tony Lake, chief constable, Lincolnshire Police, presentation before the FBI Symposium on Familial Searching and Genetic Privacy, Arlington, VA, March 17–18, 2008.
5. Of course, it is also possible that “tipping off” a relative may warn the suspect that the police are onto him or her, which happened in the “stiletto shoe case” (see box 4.1).
6. European Network of Forensic Science Institutes (ENFSI), ENFSI DNA Working Group, “DNA-Database Management Review and Recommendations,” April 2009, http://www.enfsi.eu/page.php?uid=98 (accessed April 12, 2010).
7. See Frederick R. Bieber, “Science and Technology of Forensic DNA Profiling: Current Use and Future Directions,” in DNA and the Criminal Justice System: The Technology of Justice, ed. David Lazer (Cambridge, MA: MIT Press, 2004), 23–62. See also Ben Mitchell, “Police Warning to Criminals Over DNA Breakthrough,” Scotsman, November 19, 2004.
9. Henry T. Greely, Daniel P. Riordan, Nanibaa’ A. Garrison, and Joanna L. Mountain, “Family Ties: The Use of DNA Offender Databases to Catch Offenders’ Kin,” Journal of Law, Medicine and Ethics 34, no. 2 (Summer 2006): 248–262.
11. Michael Chamberlain, deputy attorney general, DNA Legal Unit, California Department of Justice, Memorandum to Attorney General Jerry Brown, California, June 6, 2007, 3.
14. Kristen Lewis, University of Washington, Department of Biostatistics, statement at American Association of Forensic Science Annual Meeting, Washington, DC, February 18–23, 2008.
15. Ted Staples, Scientific Working Group on DNA Analysis Methods (SWGDAM) Ad Hoc Group on Partial Matches, presentation before the FBI Symposium on Familial Searching and Genetic Privacy, Arlington, VA, March 17–18, 2008. Committee recommendations presented available at Forensic Science Communications, F.B.I., SWGDAM Recommendations to the FBI Director on the “Interim Plan for the Release of Information in the Event of a ‘Partial Match’ at NDIS,” vol. 11, no. 4, October 2009, http://www.fbi.gov/hq/lab/fsc/current/standard_guidlines/swgdam.html (accessed April 17, 2010).
16. Greely et al., “Family Ties,” 252.
17. George Carmody, professor of biology, Carleton University, Ottawa, Ontario, statement at New York State Forensic Science Commission hearing, January 2008.
18. Greely et al., “Family Ties,” 253.
19. David R. Paoletti, Travis E. Doom, Michael L. Raymer, and Dan E. Krane, “Assessing the Implications for Close Relatives in the Event of Similar but Nonmatching DNA Profiles,” Jurimetrics 46 (Winter 2006): 161–175.
20. Bruce Weir, “DNA Evidence: Inferring Identity,” in Encyclopedia of Life Sciences, Gerry Melino, editor-in-chief, Volume on Genetics and Molecular Biology (Chichester, UK: John Wiley, 2006), 2, http://www.els.net, doi: 10.1038/npg.els.0005452 (accessed May 3, 2010).
21. For familial searches the likelihood ratio is the chance that a sibling (relative) has a matching profile divided by the chance that a randomly chosen unrelated person has a matching profile.
22. Charles Brenner, consultant in forensic mathematics, Oakland, CA, presentation before the New York State Forensic Science Commission, January 2008.
23. Frederick R. Bieber, Charles H. Brenner, and David Lazer, supporting online material for “Finding Criminals Through DNA of Their Relatives,” Science 312 (June 2, 2006): 1315–1316 (originally published in Science Express on May 11, 2006) http://www.sciencemag.org/cgi/content/full/sci;1122655/DC1 (accessed April 15, 2010).
24. Frederick R. Bieber, Charles H. Brenner, and David Lazer, “Finding Criminals Through DNA of Their Relatives,” Science 312 (June 2, 2006): 1315–1316, quotation at 1315.
25. George Carmody, professor of biology, Carleton University, Ottawa, Ontario, statement at New York State Forensic Science Commission hearing, January 2008.
26. Kristen E. Lewis, Bruce S. Weir, and Mary-Claire King, “Genomic Approaches to the Identification of Individuals Through Familial Database Searches” (paper presented at the American Academy of Forensic Sciences 60th Anniversary Scientific Meeting, Washington, DC, February 20–23, 2008).
29. Federal Bureau of Investigation, CODIS Bulletin, “Interim Plan.”
32. Thomas Callaghan, presentation at the 13th National CODIS Conference, CODIS Unit, Burlingame, CA, October 29–30, 2007.
33. Tom Callaghan, chief, CODIS Unit, FBI, presentation before the FBI Symposium on Familial Searching and Genetic Privacy, Arlington, VA, March 17–18, 2008.
34. DNA Identification Act of 1994 (Title XXI, Subtitle C of the Violent Crime Control and Law Enforcement Act, Public Law 103-322), 108 Stat. 1796.
35. Senator Herb Kohl (D-WI), statement in support of the DNA Analysis and Backlog Elimination Act of 2000 during the Senate floor debate, December 6, 2000.
36. National Research Council, DNA Technology in Forensic Science (Washington, DC: National Academy Press, 1992), 86–87.
37. U.S.C. 552a(e)(4): “Each agency that maintains a system of records shall (4) . . . publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records, which notice shall include A) the name and location of the system; B) the categories of individuals on whom records are maintained in the system; C) the categories of records maintained in the system; D) each routine use of the records contained in the system, including the categories of users and the purpose of such use; E) the policies and practices of the agency regarding storage, retrievability, access controls, retention, and disposal of the records.”
38. Department of Justice, “Privacy Act of 1974: New System of Records,” Federal Register 61, no. 139 (July 18, 1996): 37497 (emphasis added).
39. In response to a question raised by Barry Scheck, co-director of the Innocence Project, whether states had authority to do full-scale familial searching, only 3–4 hands were raised out of approximately 150 individuals in the room.
40. Tom Callaghan, quoted in Summary Report of the Virginia Scientific Advisory Committee’s Subcommittee on Familial Searches, August 2007.
42. Richard Willing, “DNA ‘Near Matches’ Spur Privacy Fight,” USA Today, August 3, 2007, 3A.
43. Rockne Harmon, comment in response to question posed by Louisiana State Crime Lab director, FBI Symposium on Familial Searching and Genetic Privacy, Arlington, VA, March 17–18, 2008.
44. California Department of Justice, Division of Law Enforcement, “DNA Partial Match (Crime Scene DNA Profile to Offender) Policy,” April 24, 2008.
45. Code of Massachusetts, Regulations, CMR Title 515 2.14, “Mutual Exchange, Use and Storage of DNA Records” (emphasis added).
46. Richard Pinchin, North American Operations Manager, Forensic Science Service, U.K., presentation before the New York State Forensic Science Commission hearing, January 2008. See also Robin Williams, “Making Do with Partial Matches: DNA Intelligence and Criminal Investigations in the United Kingdom” (presentation at DNA Fingerprinting and Civil Liberties: Workshop #2, American Society for Law, Medicine and Ethics, September 17–18, 2004); and Andrew Barrow, “Sex Attacker Snared by Family DNA,” Press Association Limited, September 23, 2005.
47. Pinchin, presentation before the New York State Forensic Science Commission hearing.
48. Ibid. Mitch Morrissey, the district attorney in Denver, has also claimed that his pilot familial searching program has identified three cases in which there was a 90 percent chance of identifying a sibling link between crime-scene evidence and an individual in the Denver database. See Jeffrey Rosen, “Genetic Surveillance for All,” Slate (March 17, 2009), http://www.slate.com/id/2213958/pagenum/all/ (accessed April 12, 2010).
49. Lewis et al., “Genomic Approaches to the Identification of Individuals.”
50. Hugh Whittall, director, Nuffield Council on Bioethics, presentation before the FBI Symposium on Familial Searching and Genetic Privacy, Arlington, VA, March 17–18, 2008.
51. Robin Williams and Paul Johnson, “Inclusiveness, Effectiveness and Intrusiveness: Issues in the Developing Uses of DNA Profiling in Support of Criminal Investigations,” Journal of Law, Medicine and Ethics 33, no. 3 (2005): 545–558, quotation at 555.
53. Jeffrey Rosen, professor of law, George Washington University, presentation before the FBI Symposium on Familial Searching and Genetic Privacy, Arlington, VA, March 17–18, 2008.
54. U.S. Const., Art. III, 3, Cl. 2.
55. Chamberlain, Memorandum to Brown, 5.
56. Hill v. NCAA, 7 Cal. 4th (1994).
57. Bieber et al., “Finding Criminals Through DNA of Their Relatives,” 1316.
58. New York Civil Rights Law, Section 79-1, “Confidentiality of Records of Genetic Tests.”
59. Sonia Suter, professor of law, George Washington University, presentation before the FBI Symposium on Familial Searching and Genetic Privacy, Arlington, VA, March 17–18, 2008.
60. Erica Haimes, “Social and Ethical Issues in the Use of Familial Searching in Forensic Investigations: Insight from Family and Kinship Studies,” Journal of Law, Medicine and Ethics 34 (Summer 2006): 263–276, quotation at 271.
61. Bieber quoted in Rick Weiss, “Vast DNA Bank Pits Policing vs. Privacy,” Washington Post, June 3, 2006, A1.
62. Daniel J. Grimm, “The Demographics of Genetic Surveillance: Familial DNA Testing and the Hispanic Community,” Columbia Law Review 107 (June 2007): 1164–1194, quotation at 1164.
63. Bieber et al., “Finding Criminals Through DNA of Their Relatives.”
64. Cook, “Near Match of DNA Could Lead Police to More Suspects.”
5. Forensic DNA Phenotyping
1. Lindsy A. Elkins, “Five Foot Two with Eyes of Blue: Physical Profiling and the Prospect of a Genetics-Based Criminal Justice System,” Notre Dame Journal of Law, Ethics and Public Policy 17 (2003): 269–305, quotation at 269.
2. Quoted in Jessica Snyder Sachs, “DNA and a New Kind of Racial Profiling,” Popular Science (December 1, 2003), 16–20, quotation at 20.
3. Richard Willing, “DNA Tests Offer Clues to Suspect’s Race,” USA Today, August 16, 2005.
4. Elkins, “Five Foot Two with Eyes of Blue,” 282.
5. “DNA analysis could serve as an antidote to racial profiling in that reliance on genetic information in crime scene samples could correct tendencies to pursue one group disproportionately.” Ibid.
7. Mark D. Shriver and Rick A. Kittles, “Genetic Ancestry and the Search for Personalized Genetic Histories,” Nature Reviews: Genetics 5 (August 2004): 611–618, quotation at 613.
8. Willing, “DNA Tests Offer Clues to Suspect’s Race.”
9. Susanne B. Haga, “Policy Implications of Defining Race and More by Genome Profiling,” Genomics, Society and Policy 2, no. 1 (2006): 57–71, quotation at 59–60.
10. Sachs, “DNA and a New Kind of Racial Profiling,” 16. DNAPrint Genomics was a genetics company that offered a wide range of products and services related to genetic profiling. The company suddenly ceased operations in February 2009.
11. See DNAPrint Genomics, Press Release, “DNAPrint Genomics Is Encouraging Law Enforcement Agencies to Include DNA Witness™ in Their NIJ Grant Proposals,” August 16, 2004. While DNAPrint Genomics has gone out of business, currently its press releases can be found at http://www.dnaprint.com/welcome/press/press_recent/ (accessed May 23, 2010).
14. DNAPrint Genomics, “DNAPrint Genomics Helps Boulder Police Solve 10-Year-Old Rape Murder Case Using Cutting Edge DNA Technology,” press release, January 30, 2008, www.dnaprint.com/welcome/press/press_recent/2008/0130/DNAG-Colo.pdf (accessed November 3, 2008); also picked up by Reuters newswire under the same title, January 30, 2008, www.reuters.com/article/pressRelease/idUS144134+30-Jan-2008+MW20080130 (accessed November 3, 2008).
15. John Aguilar, “DNA Hit Leads to Arrest in Susannah Chase Slaying,” Daily Camera and County News, January 28, 2008.
17. Aguilar, “DNA Hit Leads to Arrest.”
19. As noted in note 10, DNAPrint Genomics stopped its operations suddenly as of February 2009. Its last filing with the Securities and Exchange Commission took place on February 9, 2009. Financial analysts described the company as a cashstrapped firm with good products and a poor business plan.
20. Sachs, “DNA and a New Kind of Racial Profiling,” 16.
21. Mathew Graydon, François Cholette, and Lay-Keow Ng, “Inferring Ethnicity Using Autosomal STR Loci—Comparisons Among Populations of Similar and Distinctly Different Physical Traits,” Forensic Science International 3 (September 2009): 251–254.
22. A portion of this section was based on an unpublished paper by Noam Biale and Tania Simoncelli, “Applying Behavioral Science to Policy: A Civil Liberties Perspective,” November 2008.
23. See, for example, Ruth Hubbard and Elijah Wald, Exploding the Gene Myth (Boston: Beacon Press, 1999).
24. See Lori B. Andrews, “Predicting and Punishing Antisocial Acts: How the Criminal Justice System Might Use Behavioral Genetics,” in Behavioral Genetics: The Clash of Culture and Biology, ed. Ronald A. Carson and Mark A. Rothstein (Baltimore: Johns Hopkins University Press, 1999), 116–155. See also Troy Duster, “Behavioral Genetics and Explanations of the Link Between Crime, Violence, and Race,” in Wrestling with Behavioral Genetics: Science, Ethics, and Public Conversation, ed. Erik Parens, Audrey R. Chapman, and Nancy Press (Baltimore: Johns Hopkins University Press, 2006), 150–175.
25. See Troy Duster, Backdoor to Eugenics, 2nd ed. (New York: Routledge, 2003); see also Edwin Black, War Against the Weak: Eugenics and America’s Campaign to Create a Master Race (New York: Four Walls Eight Windows, 2003).
26. Patricia A. Jacobs, A. M. Brunton, M. Melville, R. Brittain, and W. McClemont, “Aggressive Behavior, Mental Sub-normality and the XYY Male,” Nature 208, no. 17 (1965): 1351–1352. This study found that 7 of 197 inmates (3.5 percent) were XYY, while the ratio of XYY in the general population was 1.3/1,000 (< 1 percent).
27. Richard Moran, “The Search for the Born Criminal and the Medical Control of Criminality,” in Deviance and Medicalization: From Badness to Sickness, ed. P. Conrad and J. W. Schneider (New York: Temple University Press, 1992), 228. See also “Dr. Hutschenecker’s Modest Proposal,” editorial, Washington Post, April 10, 1970; and “Physician, Heal Thyself,” Time (April 20, 1970), 8.
28. M. Rutter, H. Giller, and A. Hagell, Antisocial Behavior by Young People (Cambridge: Cambridge University Press, 1998).
29. A. Caspi, J. McClay, T. E. Moffitt, et al., “Role of Genotype in the Cycle of Violence of Maltreated Children,” Science 297 (August 2, 2002): 851–854.
30. Council of State Governments, “Consensus Report 2002” (Lexington, KY: Council of State Governments, 2002), 136.
32. Wojciech et al., “Determination of Phenotype Associated SNPs in the MC1R Gene,” 349.
35. Jennifer Brevorka, “Police Call on Psychic to Help in Bennett Case,” News and Observer (Raleigh, NC), October 24, 2004.
36. Mark A. Rothstein and Meaghan K. Talbott, “The Expanding Use of DNA in Law Enforcement: What Role for Privacy?” Journal of Law, Medicine and Ethics 34, no. 2 (2006): 153–164. See also Chris Calabrese, testimony before the National Committee on Vital and Health Statistics (NCVHS), Subcommittee on Privacy and Confidentiality, February 18, 2004, http://www.aclu.org/technology-and-liberty/aclus-chris-calabreses-testimony-ncvhs (accessed November 8, 2008).
37. K. Thangaraj, A. G. Reddy, and L. Singh, “Is the Amelogenin Gene Reliable for Gender Identification in Forensic Casework and Prenatal Diagnosis?” International Journal of Legal Medicine 116, no. 2 (April 2002): 121–123.
38. F. Mohammed and S. M. Tayel, “Sex Identification of Normal Persons and Sex Reversal Cases from Blood Stains Using FISH and PCR,” Journal of Clinical Forensic Medicine 12, no. 3 (June 2003): 122–127.
39. Elkins, “Five Foot Two with Eyes of Blue,” 282.
40. Eileen A. Grimes, Penny J. Noake, Lindsey Dixon, and Andrew Urquhart, “Sequence Polymorphism in the Human Melanocortin 1 Receptor Gene as an Indicator of the Red Hair Phenotype,” Forensic Science International 122 (2001): 124–129.
41. B. Wojciech, U. Brudnik, T. Kupiec, et al., “Determination of Phenotype Associated SNPs in the MC1R Gene,” Journal of Forensic Sciences 52, no. 2 (March 2007): 349–354, quotation at 354.
42. P. Valverde et al., “Variants of the Melanocyte-Stimulating Hormone Receptor Gene Are Associated with Red Hair and Fair Skin in Humans,” Nature Genetics 11 (1995): 328–330.
43. Grimes et al., “Sequence Polymorphism in the Human Melanocortin 1 Receptor Gene.”
44. Tony Frudakis, Timothy Terravainen, and Mathew Thomas, “Multilocus OCA2 Genotypes Specify Human Iris Colors,” Human Genetics 122, nos. 3–4 (November 2007): 311–326.
46. R. A. Sturm, “Human Pigmentation Genes and Their Response to Solar UV Radiation,” Mutation Research Review 422 (1998): 69–76.
47. A. H. Robins, Biological Perspectives on Human Pigmentation (Cambridge: Cambridge University Press, 1991), 42–58.
48. Frudakis, Molecular Photofitting, 585.
49. Troy Duster, “The Implications of Behavioral Genetics Inquiry for Explanations of the Link Between Crime, Violence and Race” (unpublished manuscript, December 15, 2003).
50. I. W. Evett, I. S. Buckleton, A. Raymond, and H. Roberts, “The Evidential Value of DNA Profiles,” Journal of the Forensic Science Society 33, no. 4 (1993): 243–244.
51. Bert-Jaap Koops and Maurice Schellekens, “Forensic DNA Phenotyping: Regulatory Issues,” Columbia Science and Technology Law Review 9 (2008): 158–202, quotation at 191.
52. Sachs, “DNA and a New Kind of Racial Profiling,” 20.
53. Koops and Schellekens, “Forensic DNA Phenotyping,” 171.
54. Wyoming Statutes Ann. 7-19-404 (2007).
55. Michelle Hibbert, “DNA Databanks: Law Enforcement’s Greatest Surveillance Tool?” Wake Forest Law Review 34 (Fall 1999): 767–825, at 819.
56. Koops and Schellekens, “Forensic DNA Phenotyping,” 166–167.
59. See N. Farahany and W. Bernet, Behavioral Genetics in Criminal Cases: Past, Present and Future, Vanderbilt Public Law Research Paper no. 06-15 2 (1) (Nashville: Vanderbilt Law School, 2006), 72–79.
61. Sachs, “DNA and a New Kind of Racial Profiling,” 20.
62. Koops and Schellekens, “Forensic DNA Phenotyping,” 201.
6. Surreptitious Biological Sampling
1. Alex Kozinski, minority dissent, United States v. Kincade, U.S. Court of Appeals for the 9th Circuit, No. 02-50380, D.C. No. CR-93-00714-RAG-01, April 18, 2004, 11468.
4. State of Washington v. Athan.
5. State of Washington v. Athan, Brief of Amicus Curiae, American Civil Liberties Union of Washington, in support of Appellant, John Nicholas Athan, Supreme Court of the State of Washington (No. 75312-1), prepared by Douglas B. Klunder (2007).
6. State of Washington v. Athan, ¶ 35.
10. State of Washington v. Jackson, 150 Wn.2d at 262.
11. State of Washington v. Young, 123 Wn.2d at 181–182.
12. State of Washington v. Gunwall, 720 P.2d 808.
13. State of Washington v. Boland, 115 Wn.2d 571, 578, 800 P.2d 1112 (1990).
14. Shankar Vedantam, “Study Links Gene Variant in Men to Marital Discord,” Washington Post, September 2, 2008, A2.
15. State of Washington v. Athan (Dissenting Opinion, written by Mary E. Fairhurst).
16. Elizabeth E. Joh, “Reclaiming ‘Abandoned’ DNA: The Fourth Amendment and Genetic Privacy,” Northwestern University Law Review 100 (2006): 857–884, quotation at 874.
17. Elizabeth Joh, “Reclaiming ‘Abandoned’ DNA: The Fourth Amendment and Genetic Privacy,” UC Davis Legal Studies Research Paper Series, Research Paper no. 40 (April 2005), 1–31, quotation at 14; Social Science Research Network Electronic Paper Collection, http://ssrn.com/abstract=702571 (accessed April 18, 2010).
18. Sheldon Krimsky, “The Right to Our DNA,” letter to the editor, New York Times, April 18, 2007, A22.
19. Robert C. Green and George J. Annas, “The Genetic Privacy of Presidential Candidates,” New England Journal of Medicine 359 (November 20, 2008): 2192–2193.
20. See, e.g., State of Nebraska v. Wickline, 232 N.W. 2d 253 (Neb. 1989) (finding that the police did not need a warrant to collect cigarettes left at the police station since these items were “abandoned” and “sufficiently exposed” to the officer and the public).
21. California v. Greenwood, 486 U.S. 35 (1988).
22. Joh, “Reclaiming ‘Abandoned’ DNA,” (2006), 881.
23. Kyllo v. United States 533 U.S.27 (2001).
24. Erin Murphy, “The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence,” California Law Review 95 (June 2007): 721–797, quotation at 736.
25. Amy Harmon, “The DNA Age: Stalking Strangers’ DNA to Fill In the Family Tree,” New York Times, April 2, 2007.
26. Paul S. Applebaum, “Behavioral Genetics and the Punishment of Crime,” Psychiatric Services 56, no. 1 (January 2005): 25–27.
27. Joh, “Reclaiming ‘Abandoned’ DNA” (2006), 882–883.
7. Exonerations
1. Jessica Blank and Erik Jensen, The Exonerated (New York: Faber and Faber, 2004), 45.
2. Samuel R. Gross, Kristen Jacoby, Daniel J. Matheson, Nicholas Montgomery, and Sujata Patil, “Exonerations in the United States, 1989 through 2003,” Journal of Criminal Law and Criminology 95, no. 2 (Winter 2005): 523–560, quotation at 525.
3. See Susan Haack, Defending Science—Within Reason: Between Scientism and Cynicism (New York: Prometheus Books, 2003), 233–264 (on science and law); Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America (Cambridge, MA: Harvard University Press, 1995).
4. Robert Merton, “Science and Democratic Social Structure,” in Merton, Social Theory and Social Structure (Glencoe, IL: Free Press, 1957), 550–561.
5. In the 1993 Supreme Court decision Daubert v. Merrill Dow Pharmaceuticals, Inc. (113 S.Ct. 2786 [1993]) the Court established a gatekeeper role for the trial judge in deciding whether to allow expert testimony into the courtroom. When the Supreme Court issued its opinion in Daubert, it suggested four criteria that judges can use to determine whether scientific testimony was reliable and therefore admissible: (1) the evidence should be based on a testable theory or technique; (2) the theory or technique has been peer reviewed; (3) the particular technique has a known error rate; (4) the underlying science is generally accepted.
6. Berger v. United States, 295 U.S. 78, 68 (1935).
7. Susan Rutberg, “Anatomy of a Miscarriage of Justice: The Wrongful Conviction of Peter J. Rose,” Golden Gate University Law Review 37 (2006): 26.
8. Karl Popper was a leading twentieth-century philosopher who, while critical of inductivism, advanced a method of empirical falsificationism. Popper, The Logic of Scientific Discovery (New York: Harper & Row, 1968).
9. Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1962), 66–76.
10. Sheldon Krimsky, Science in the Private Interest (Lanham, MD: Rowman and Littlefield, 2003).
11. Stephen Breyer, Breaking the Vicious Circle (Cambridge, MA: Harvard University Press, 1993), 53–81.
12. People v. Dotson, 99 Ill. App. 3d 117 (1981).
13. Edward Connors, Thomas Lundregan, Neal Miller, and Tom McEwen, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial (Washington, DC: National Institute of Justice, U.S. Department of Justice, June 1996), 60–61.
14. This was based on the court’s reading of Herrera v. Collins, 506 U.S. 390, 400 (1993).
16. Mark Rabil, telephone conversation with the authors, January 15, 2008.
19. Frank Green, “Eyewitness ID Fallibility Shown,” Richmond Times Dispatch, March 16, 2003.
20. Zahn, interview with Anderson and Neufeld.
21. Green, “Eyewitness ID Fallibility Shown.”
22. Zahn, interview with Anderson and Neufeld.
23. Brandon L. Garrett, “Judging Innocence,” Columbia Law Review 108 (January 2008): 55–142, quotation at 116.
24. Personal correspondence between Rebecca Brown, the Innocence Project, and Sheldon Krimsky, February 17, 2009.
25. Personal correspondence between Rebecca Brown, the Innocence Project, and Sheldon Krimsky, November 14, 2008.
26. Garrett, “Judging Innocence,” 116.
27. Nina Morrison, staff attorney, the Innocence Project, affidavit, July 24, 2006.
29. Miles Moffeit, “Prosecutors Resist Retrial in DNA Case,” Denver Post, March 18, 2008.
30. Arizona v. Youngblood, Supreme Court No. 86-1904, 488 U.S. 51, decided November 29, 1988.
32. Barry Scheck, “Innocence, Race, and the Death Penalty,” Howard University Law Journal 50 (Winter 2007): 445–469, statement at 449.
33. Garrett, “Judging Innocence,” 88.
38. Personal correspondence between Vanessa Potkin, staff attorney, the Innocence Project, and Sheldon Krimsky, January 6, 2009.
39. Garrett, “Judging Innocence,” 119.
42. Personal correspondence between Rebecca Brown, the Innocence Project, and Sheldon Krimsky, February 17, 2009.
43. Gross et al., “Exonerations in the United States,” 523.
44. Solomon Moore, “Study Calls for Oversight of Forensics in Crime Labs,” New York Times, February 19, 2009, A12; National Research Council, Committee on Identifying the Needs of the Forensic Sciences Community, Strengthening Forensic Science in the United States: A Path Forward (Washington, DC: National Academy Press, 2009).
45. Personal correspondence between Rebecca Brown, the Innocence Project, and Sheldon Krimsky, February 17, 2009.
8. The Illusory Appeal of a Universal DNA Data Bank
2. State v. Olivas, 856 P.2d 1076, 1094 (Wash. 1993), J. Utter, concurring.
3. “Let’s Catch More Rapists Before They Strike Again,” editorial, Glamour (January 2007): 102.
6. James Sturcke, “Code Cracking: 25 Years of DNA Detection,” Guardian UK, May 7, 2009.
7. “Let’s Catch More Rapists Before They Strike Again,” 102.
8. “Of the sexual assault victims in the NSA, 74 percent reported that the assault was committed by someone they knew well. Almost one-third (32.5 percent) of sexual assault cases involved perpetrators who were friends, 21.1 percent were committed by a family member, and 23.2 percent were committed by strangers.” U.S. Department of Justice, “Rape and Sexual Assault,” http://www.ojp.usdoj.gov/ovc/ncvrw/2005/pg50.html (accessed September 16, 2009).
9. “In the first rape experience of female victims, perpetrators were reported to be intimate partners (30.4%), family members (23.7%), and acquaintances (20%). In the first rape experience of male victims, perpetrators were reported to be acquaintances (32.3%), family members (17.7%), friends (17.6%), and intimate partners (15.9%).” Centers for Disease Control, “Sexual Violence,” Facts at a Glance, Spring 2008, http://www.cdc.gov/ViolencePrevention/pdf/SV-DataSheet-a.pdf (accessed September 16, 2009).
10. “Incest offenders ranged between 4 and 10%; Rapists ranged between 7 and 35%; Child molesters with female victims ranged between 10 and 29%; Child molesters with male victims ranged between 13 and 40%; Exhibitionists ranged between 41 and 71%.” U.S. Department of Justice, Center for Sex Offender Management, “Recidivism of Sex Offenders,” May 2001, http://www.csom.org/pubs/recidsexof.html (accessed September 16, 2009).
11. Kristen M. Zgoba and Lenore M. J. Simon, “Recidivism Rates of Sexual Offenders up to 7 Years Later,” Criminal Justice Review 30, no. 2 (September 2005): 155–173.
12. Rebecca Sasser Peterson, “DNA Databases: When Fear Goes Too Far,” American Criminal Law Review 37, no. 3 (Summer 2000): 1219–1238, quotation at 1234.
13. D. H. Kaye and Michael E. Smith, “DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage,” Wisconsin Law Review (2003): 413–459, quotation at 459.
14. Ben Quarmby, “The Case for National DNA Identification Cards,” Duke Law and Technology Review (January 31, 2003), 1–9, quotation at 7.
16. See Al Baker, “Effort to Reinstate Death Penalty Law Is Stalled in Albany,” New York Times, November 18, 2004, B6; see also John Paul Truskett, “The Death Penalty, International Law, and Human Rights,” Tulsa Journal of Comparative and International Law 11 (2004): 557, at 589–593 (discussing empirical studies worldwide).
17. Raymond Bonner, “Absence of Executions: A Special Report; States with No Death Penalty Share Lower Homicide Rates,” New York Times, September 22, 2000, A1. For 2007, the average murder rate for death penalty states is 5.83 (per 100,000) and for non-death penalty states it is 4.10 (per 100,000). Death Penalty Information Center, “Deterrence: States Without the Death Penalty Have Had Consistently Lower Murder Rates,” http://www.deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistently-lower-murder-rates (accessed April 7, 2010).
19. Scottish Office Central Research Unit, “Crime and Criminal Justice Research Findings No. 30: The Effect of Closed Circuit Television on Recorded Crime Rates and Public Concern About Crime in Glasgow,” July 7, 1999, http://www.scotcrim.u-net.com/researchc2.htm (accessed April 7, 2010).
21. Rosen, “Liberty, Privacy and DNA Databases,” 41.
22. Paul M. Monteleoni, “DNA Databases, Universality, and the Fourth Amendment,” New York University Law Review 82 (April 2007): 247–280, quotation at 279.
23. Richard A. Posner, The Economic Analysis of Law (Boston: Little, Brown, 1973).
24. U.K. National DNA Database, Annual Report 2003–4, 23.
25. Amitai Etzioni, “A Communitarian Approach: A Viewpoint on the Study of the Legal, Ethical and Policy Considerations Raised by DNA Tests and Databases,” Journal of Law, Medicine and Ethics 34, no. 2 (Summer 2006): 214–221, quotation at 214.
27. D. H. Kaye and Michael E. Smith, “DNA Databases for Law Enforcement: The Coverage Question and the Case for a Population-Wide Database,” in DNA and the Criminal Justice System: The Technology of Justice, ed. David Lazer (Cambridge, MA: MIT Press, 2004), 269.
28. Kaye and Smith, “DNA Identification Databases,” 415.
29. Kaye and Smith, “DNA Databases for Law Enforcement,” 272.
30. Troy Duster, Backdoor to Eugenics, 2nd ed. (New York: Routledge, 2003).
31. Pilar Ossorio and Troy Duster, “Race and Genetics: Controversies in Biomedical, Behavioral, and Forensic Sciences,” American Psychologist 60, no. 1 (January 2005): 115–128; Harry Levine and Deborah Peterson Small, Marijuana Arrest Crusade: Racial Bias and Police Policy in New York City, 1997–2007 (New York: New York Civil Liberties Union, April 2008), http://www.nyclu.org/node/1736 (accessed April 10, 2010).
32. Ossorio and Duster, “Race and Genetics,” 125.
35. “Lord Justice Stephen Sedley’s Proposal for a Universal DNA Database in the UK” (interview).
36. Ossorio and Duster, “Race and Genetics,” 125.
37. Peterson, “DNA Databases,” 1228.
38. Meredith A. Bieber, “Meeting the Statute or Beating It: Using ‘John Doe’ Indictments Based on DNA to Meet the Statute of Limitations,” University of Pennsylvania Law Review 50 (January 2002): 1079–1097.
40. Kaye and Smith, “DNA Databases for Law Enforcement,” 267.
41. Mark A. Rothstein and Sandra Carnahan, “Legal and Policy Issues in Expanding the Scope of Law Enforcement DNA Databanks,” Brooklyn Law Review 67 (Fall 2001): 127–170, quotation at 155.
44. Michael E. Smith, “Let’s Make the DNA Identification Database as Inclusive as Possible,” Journal of Law, Medicine and Ethics 34, no. 2 (Summer 2006): 385–389, quotation at 388. See also Dudley, “A Cold Hit.”
45. Smith, “Let’s Make the DNA Identification Database as Inclusive as Possible,” 388.
46. Richard Stacy, “The Future of DNA,” Denver Post, January 25, 2009.
47. Rosen, “Liberty, Privacy and DNA Databases.”
51. National Bioethics Advisory Commission, Research Involving Human Biological Materials: Ethical Issues and Policy Guidance, vol. 1: Report and Recommendations of the National Bioethics Advisory Commission (Rockville, MD: National Bioethics Advisory Commission, August 1999), 13, http://bioethics.georgetown.edu/nbac/hbm.pdf (accessed April 11, 2010).
52. Nigel Morris, “A ‘Chilling’ Proposal for a Universal DNA Database,” Independent (London), September 6, 2007.
56. Eric Lipton, “U.S. Requiring Port Workers to Have I.D.s and Reviews,” New York Times, January 4, 2007, A14.
57. Davis v. Mississippi, 394 U.S. 721 (1969).
58. Peterson, “DNA Databases,” 1219.
9. The United Kingdom
3. For a comparison of key features of forensic DNA data banks in six countries, see the appendix to this volume.
5. P. Roberts and C. Willmore, The Role of Forensic Science Evidence in Criminal Proceedings, Royal Commission on Criminal Justice Study 11 (London: HMSO, 1993), 9.
7. Paul Johnson, Paul Martin, and Robin Williams, “Genetics and Forensics: Making the National DNA Database,” Science Studies 16, no. 2 (2003): 22–37 (2003), quotation at 30.
8. The laws that are relevant include the Police and Criminal Evidence Act 1984 and the Serious and Organized Crime Act 2005.
9. Carole McCartney, “The DNA Expansion Programme and Criminal Investigation,” British Journal of Criminology 46, no. 2 (2006): 175–192, at 176.
12. Supplementary Letter from Vernon Coaker, M.P., Minister of State, Home Office to House of Lords, Constitution Committee, December 11, 2008, published in Surveillance: Citizens and the State (House of Lords, Constitution Committee—Second Report, January 21, 2009), http://www.publications.parliament.uk/pa/ld200809/ldselect/ldconst/18/8111907.htm (accessed May 9, 2010).
13. H. Wallace, “Prejudice, Stigma and DNA Databases” (paper for the Council for Responsible Genetics, July 2008).
14. For a chart of forensic DNA data banks in EU countries, see Michael Townsley and Gloria Laycock, eds., Forensic Science Conference Proceedings: Beyond DNA in the UK—Integration and Harmonization, Newport, South Wales, May 17–19, 2004 (London: Home Office Policy Unit, 2004), 36, http://police.homeoffice.gov.uk/publications/police-reform/Forensics_Part_12835.pdf?view=Binary (accessed April 13, 2010).
16. John Lettice, “UK Gov Seeks ‘Scientific Basis’ for Nationality,” Register, June 22, 2007.
17. GeneWatch UK, “Human Genetics Parliamentary Briefing No. 6: The Police National DNA Database: An Update,” July 2006, http://www.genewatch.org/sub-539478 (accessed April 14, 2010). See also A. Barnett, “Police DNA Database ‘Is Spiraling Out of Control,’” Observer, July 16, 2006.
20. Chris Williams, “Minister Pledges No Complete DNA Database,” Register, March 30, 2006.
21. Richard Pinchin, North American Operations Manager, Forensic Science Service, U.K., presentation before the New York State Forensic Science Commission hearing, January 2008. See also Robin Williams, “Making Do with Partial Matches: DNA Intelligence and Criminal Investigations in the United Kingdom” (presentation for DNA Fingerprinting and Civil Liberties: Workshop #2, American Society for Law, Medicine and Ethics, September 17–18, 2004); and Andrew Barrow, “Sex Attacker Snared by Family DNA,” Press Association Limited, September 23, 2005.
23. Bruce Budowle, executive director, Institute of Investigative Genetics, University of North Texas Health Science Center at Fort Worth, statement at the 19th Annual Computers, Freedom and Privacy Conference, Washington, DC, June 2–4, 2009.
26. “Scientists Affirm DNA Test Criticized in Omagh Trial,” News Letter, April 11, 2008, http://www.newsletter.co.uk/news/Scientists-affirm-DNA test-criticised.3974115.jp (accessed April 14, 2010). See also Bruce Budowle, Arthur J. Eisenberg, and Angela van Daal, “Validity of Low Copy Number Typing and Applications to Forensic Science,” Croatian Medical Journal 50 (2009): 207–219, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2702736/ (accessed April 14, 2010).
28. Budowle et al., “Validity of Low Copy Number Typing and Applications to Forensic Science,” 207.
29. Budowle, statement at the 19th Annual Computers, Freedom and Privacy Conference.
30. Jason Gilder, Roger Koppl, Irving Kornfeld, et al., “Comments on the Review of Low Copy Number Testing” (letter), International Journal of Legal Medicine 123, no. 6 (2009): 535–536.
31. Randerson, “‘We’ve Now Pushed the Technology to the Absolute Limit.’”
32. Carole E. McCartney, “Forensic DNA Sampling and the England and Wales National DNA Database: A Skeptical Approach,” Critical Criminology 12 (2004): 157–178, quotation at 174.
37. Helen Wallace, “Prejudice, Stigma and DNA Databases,” GeneWatch 21, no. 3–4 (November–December 2008): 14–16.
38. Nick Taylor, “Genes on Record—One Size Fits All?” New Law Journal 156 (September 8, 2006): 1354.
44. Parliamentary Office of Science and Technology, “The National DNA Database.”
45. GeneWatch UK, “Human Genetics Parliamentary Briefing No. 6.”
46. Dr. Helen Wallace, statement in the Grand Chamber of the European Court of Human Rights Between “S” and Marper v. The United Kingdom, application nos.30562/04 and 30566/04.
52. S. and Marper v. The United Kingdom (Marper), European Court of Human Rights, Grand Chamber, nos. 30562/04 and 30566/04.
10. Japan’s Forensic DNA Data Bank
2. The loci that are currently used in generating a profile are as follows: TPOX, D3S1358, FGA, D5S818, CSF1PO, D7S820, D8S1179, TH01, vWA, D13S317, D16S539, D18S51, D21S11, D2S1338, and D19S43. E. Omura, discussion with T. Simoncelli and written comments by T. Yamamoto, professor, Waseda Law School, Tokyo, July 30, 2007.
3. Japan’s Supreme Court first established the “balancing test” in 1969 in the Hakata Station TV Film Subpoena Case. Supreme Court (Japan), grand bench, Keishu, vol. 23, no. 11, at 1490, November 26, 1969.
4. Omura, discussion with Simoncelli and written comments by Yamamoto.
6. National Public Safety Commission Regulation No. 15, Based on Article 13, Section 1 of the Police Law Enforcement Rules, Regulations on Treatment of DNA Type Profiles, enacted August 26, 2005, Article 1.
7. Omura, discussion with Simoncelli and written comments by Yamamoto.
8. Dr. Kazumasa Sekiguchi, National Research Institute of Police Science, personal correspondence with Sheldon Krimsky, February 16, 2007.
9. National Police Agency (NPA), “Towards Activating DNA Profile Information” (publication date unknown), translated by E. Omura, January 2008.
10. National Police Agency, “Guidelines on Operating Expert Examination of DNA Profiles,” referred to in Toshikazu Shimizu, National Policy Agency, Criminal Bureau, “Commencing the Operation of the Crime Scene DNA Profiles Database System, 2005” (English summary prepared for authors by E. Omura).
11. Tania Simoncelli, interview with H. Tokunaga, professor of law, Konan University, Osaka, Japan, July 18, 2007.
12. These cases all rested on intentionality; the courts found that the police agency did not exhaust the sample intentionally. See H. Tokunaga, “Sample Preservation for Evaluation by Experts,” Konan Law Review 45, nos. 1–2 (2004): 229–257.
13. Omura, discussion with Simoncelli and written comments by Yamamoto.
14. Sekiguchi, personal correspondence with Krimsky.
15. Japan’s population is approximately 127 million. See National Institute of Population and Social Security Research, “Population Statistics of Japan: 2006,” http://www.ipss.go.jp/p-info/e/PSJ2006.pdf (accessed April 15, 2010).
16. See, for example, H. Tokunaga, “DNA Database Without Proper Legislation,” Konan Law Review 46, no. 3 (2005): 115–134; Tania Simoncelli, interview with T. Yamamoto, H. Sato, and K. Kai, Waseda Law School, Tokyo, July 30, 2007, translation by E. Omura.
17. JFBA, “Opinion on the National Police Agency DNA Database System.”
18. Omura, discussion with Simoncelli and written comments by Yamamoto.
19. JFBA, “Opinion on the National Police Agency DNA Database System.” See also Tokunaga, “DNA Database Without Proper Legislation,” and Omura, discussion with Simoncelli and written comments by Yamamoto.
20. Article 31 of Japan’s Constitution states, “No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.”
21. H. Tokunaga, “Quality Assurance System of Forensic DNA Typing,” DNA Polymorphism 15 (2007): 349–353, summarized and translated by E. Omura, January 2008.
22. Tania Simoncelli, interview with H. Tokunaga, professor of law, Konan University, Osaka, Japan, July 19, 2007. In addition, in June 2004 the NPA held a forum titled “Use of DNA Profiles: Reference to the UK System” that featured a U.K. law-enforcement official as the keynote speaker. See H. Tokunaga, “Issues on DNA Database” (presentation to the Human Rights Committee, Japan Federation of Bar Associations, August 2005), summarized and translated by E. Omura, January 2008.
23. NPA, “Towards Activating DNA Profile Information,” sec. III; Simoncelli, interview with Tokunaga, July 18, 2007.
24. Toshikazu Shimnizu, NPA Criminal Bureau, “Operation of Crime Scene DNA Database System,” April 2005, summarized and translated by E. Omura, January 2008.
25. Simoncelli, interview with Tokunaga, July 19, 2007.
26. David Cyranoski, “Japan’s Ethnic Crime Database Sparks Fears Over Human Rights,” Nature 427 (January 29, 2004): 383.
28. None of the legal scholars we spoke with in Japan were aware of any ethnicity testing occurring to date or of the initial proposal.
11. Australia
2. Office of the Federal Privacy Commissioner, Submission to the Senate Legal and Constitutional Legislation Committee, Commonwealth of Australia, Inquiry into the Crimes Amendment (Forensic Procedures) Bill 2000, November 2000, www.privacy.gov.au/materials/types/download/8630/6479 (accessed April 18, 2010).
3. New South Wales, “Review of the Crimes (Forensic Procedures) Act 2000,” Parliamentary Paper no. 1118, February 2002, 13.
5. Mark Findlay and New South Wales Government, Independent Review of the Crimes (Forensic Procedures) Act 2000, Criminal Law Division, Attorney-General’s Department (Sydney, 2003), 22, http://www.lawlink.nsw.gov.au/lawlink/clrd/ll_clrd.nsf/pages/CLRD_forensics_report (accessed April 18, 2010). See also Ian Frekelton, barrister, Owen Dixon Chambers, Melbourne, “DNA Profiling: Forensic DNA Under the Microscope,” Criminal Law Journal 14 (1990): 23–41.
6. Frekelton, “DNA Profiling,” 29.
7. Transcript from the PM radio program titled “DNA Laws Begin in Victoria,” September 2, 2002, Kate Tozer, reporter. “[Mark Colvin:] In Victoria, the police force has been given the power to take forced DNA samples from people who aren’t serving any sentence.” http://www.abc.net.au/pm/stories/s665063.htm (accessed April 18, 2010).
8. Crimes Act 1914 (Cth), pt. 1D, div. 8.
9. Findlay and New South Wales Government, Independent Review of the Crimes (Forensic Procedures) Act 2000, 12, 17.
10. Richard Hindmarsh, “Australian Biocivic Concerns and Governance of Forensic DNA Technologies: Confronting Technocracy,” New Genetics and Society (September 1, 2008), 269.
14. CrimTrac, Annual Report 2006–7 (Canberra: CrimTrac, 2007), 19.
15. Rachel Lebihan, “DNA Database Not a Perfect Match,” Australian Financial Review, April 3, 2006.
16. Hindmarsh, “Australian Biocivic Concerns,” 272.
18. Australian Law Reform Commission, Essentially Yours.
19. Ibid., “List of Recommendations,” pt. J.
20. Charles Lawson, Griffith University Law School, personal correspondence with Sheldon Krimsky, November 12, 2007.
21. CrimTrac, Annual Report 2006–7, 19.
22. Hindmarsh, “Australian Biocivic Concerns.”
23. Colin James, “Officers Acted Illegally, Judge Rules,” Australian Business Intelligence, May 28, 2006.
12. Germany
2. Ian Mader, “Mass DNA Test Nets Murder Suspect,” San Diego Union-Tribune, May 3, 1998.
3. Hermann Schmitter and Peter M. Schneider, “Legal Aspects of Forensic DNA Analysis in Germany,” Forensic Science International 88 (1997): 95–98, citing Neue Juristische Wochenschrift (NJW, translated as New Legal Weekly) 1990, 2944–2945, http://rsw.beck.de/rsw/shop/default.asp?site=njw (accessed May 27, 2010).
4. Ibid., 96 (citing NJW 1996, 3071–3073).
7. See Federal Constitutional Court, 2nd Chamber of the Second Division of the Federal Constitutional Court, August, 2 1996, 2 BvR 273/06; 1511/96; NJW 1996, 3071, http://www.bundesverfassungsgericht.de/entscheidungen/rk20070212_2bvr027306.html (accessed April 20, 2010). A summary of the case results is given by Schmittter and Schneider: “In serious crime cases the judge may order the taking of blood samples for DNA analysis even if there is no strong suspicion against the persons the blood is taken from. Thus, under certain circumstances mass screening of a large number of potential suspects does not interfere with constitutional rights.” Schmitter and Schneider, “Legal Aspects of Forensic DNA Analysis in Germany,” 96.
8. German Code of Criminal Procedure, Section 81g [DNA Analysis] (2): “The cell tissue collected may be used only for the molecular and genetic examination referred to in subsection (1); it shall be destroyed without delay once it is no longer required for that purpose. Information other than that required to establish the DNA code may not be ascertained during the examination; tests to establish such information shall be inadmissible.” http://www.iuscomp.org/gla/statutes/StPO.htm#81g (accessed April 20, 2010).
12. Peter M. Schneider, Institut für Rechtsmedizin, Universität Mainz, Mainz, Germany, personal correspondence with Tania Simoncelli, August 28, 2008.
13. See Bundeskriminalamt, Bundeskriminalamtgesetz (BKAG) 32 II.
14. Carole McCartney, Forensic Identification and Criminal Justice: Forensic Science, Justice and Risk (Uffculme, UK: Willan Publishing Co., 2006), 162. See also Hanebeck, “DNA Analysis and the Right to Privacy.”
15. Schneider, personal correspondence with Simoncelli.
16. The provision of the German Code of Criminal Procedure allowing for a determination of gender was added to Section 81e by Parliament.
17. Hermann Schmitter, Bundeskriminalamt, Wiesbaden, Germany, “Promoting DNA in Germany” (First International DNA User’s Conference, Lyons, France, November 24–26, 1999, hosted by Interpol), http://www.interpol.int/public/Forensic/dna/conference/Promoting03.asp (accessed April 20, 2010).
18. Schmitter and Schneider, “Legal Aspects of Forensic DNA Analysis in Germany,” 95–98.
19. See Bundeskriminalamt, BKAG 8 III.
20. Christopher H. Asplen and Smith Alling Lane,, “International Perspectives on Forensic DNA Databases,” ISRCL Conference, The Hague, August 24–28, 2005, http://www.isrcl.org/Papers/Asplenn.pdf (accessed April 20, 2010). See also Nuffield Council on Bioethics, The Forensic Use of Bioinformation: Ethical Issues (London: Nuffield Council on Bioethics, September 2007), 52.
21. Eric Topfer, “Searching for Needles in an Ever Expanding Haystack: Cross-Border DNA Data Exchange in the Wake of the Prüm Treaty,” Statewatch 18 (July–September 2008): 14–16, information at 16.
13. Italy
1. Giuseppe Novelli, professor of medical genetics at Tor Vergata University in Rome and adjunct professor for medical sciences at the University of Arkansas, quote from a personal interview in December 2008 by Marina Semiglia, author of “DNA in the Mass Media,” a thesis discussed in February 2009 at the Scuola Internazionale Superiore di Studi Avanzati (SISSA) in Trieste.
3. The Agency for the Protection of Personal Data, also called the Data Protection Authority or the Privacy Authority, is an institution created in 2003 by law decree no. 153, the so-called Privacy Bill, available at http://www.garanteprivacy.it/garante/navig/jsp/index.jsp. The Privacy Authority is an administrative institution that is super partes (completely independent of others), and its management is sui generis.
4. Agenzia Giornalistica Italiana (AGI), April 28, 2004.
9. Silvio Berlusconi (Forza Italia) led the government. The law decree—a legislative instrument provided in the constitution—is immediately operative. The “Pisanu project” was supported by Alleanza Nazionale, whose leader, Gianfranco Fini, was at the time foreign minister, while Federation of the Greens (Federazione dei Verdi) and the Communist Refoundation Party (Partito della Rifondazione Comunista)—extreme leftist formations in the Italian political panorama—voted against it.
11. The Prüm Treaty (May 27, 2005) aims to foster ways of tackling cross-border crime by allowing for individual DNA profiles to be directly compared with those from computerized databases of other member states, for instance, for identification and prosecution purposes. In particular, it contains dispositions about the exchange of data banks and fingerprints. See Europa Press Release Rapid, “The Integration of the ‘Prüm Treaty’ into EU-legislation—Council Decision on the Stepping Up of Cross-Border Co-operation, Particularly in Combating Terrorism and Cross-Border Crime,” http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/803 (accessed April 23, 2010). The full text of the Prüm Treaty is available at Balzacq Thierry, “Challenge, Liberty and Security: The Treaty of Prüm and the Principle of Loyalty,” December 4, 2006, http://www.libertysecurity.org/IMG/pdf/Prum-ConventionEn.pdf (accessed April 22, 2010).
12. The 17 signatory nations to the Treaty of Prüm as of 2010 are Germany, Austria, the Netherlands, Belgium, Luxembourg, Spain, France, Finland, Italy, Portugal, Slovenia, Sweden, Bulgaria, Romania, Greece, Slovakia, and Hungary.
14. Two police corps operate in Italy and intervene in the case of serious crimes: the Carabinieri, mostly present in medium and small urban centers and under the direct control of the Ministry of Defense, and the State Police, above all present in big urban centers, under the control of the home secretary.
16. The rules for the collection of evidence are listed in the Code of Criminal Procedure (articles 187 and following). The onus of proof of innocence does not lie with the defendant, whose innocence is always presumed. His conviction (Code of Criminal Procedure, article 533) must come after a full positive demonstration of his guilt; where no claim is made regarding the insufficiency of proof, the judge pronounces the sentence “Not guilty,” and the defendant is acquitted. If the defendant is proved guilty of the crime he or she has been accused of, then it has been proved “beyond every reasonable doubt.” In spite of the emphatic tones of the national media, the mere finding of somebody’s (and especially of a defendant’s) DNA at the scene of the crime does not represent a condition either necessary or sufficient for a conviction.
17. Attilio Bolzoni, “I bimbi fantasma di Lampedusa,” La Repubblica, October 7, 2008.
18. Beatrice Montini, “I Carabinieri hanno un archivio DNA illegale,” L’Unità, May 17, 2006; Beatrice Montini, “DNA, già 15 mila identità conservate fuorilegge,” L’Unità, May 18, 2006.
19. Colonel Dr. Luciano Garofano, Carabinieri, Italy, personal correspondence with Sheldon Krimsky, January 28, 2009.
22. The draft law crafted by the under secretary for justice, Luigi Li Gotti, in the previous Prodi government (Act of Senate 1877) to establish national DNA data banks was in fact accepted by the XVI legislature, with the Berlusconi government, first by Act of the Senate 586 and later modified by Act of the Senate 905. From comparison of these two bills (1877 and 905) it emerges that (summary no. 1, July 30, 2008) “the legislative suggestions of parliamentary and government initiatives have an identical content, with the exception of the regulation for the financial backing,” and that “the measures have the same content of a similar bill (Act of Senate 1877) of governmental initiatives, presented in the past legislature.”
23. Security dispositions (also known as “Security Package”), bill no. 773, introduced on June 3, 2008, http://www.governo.it/GovernoInforma (search “Pacchetto Sicurezza”) (accessed April 23, 2010).
26. In 1997 the European Union officially recognized the importance of DNA data banks as an instrument to contribute to penal investigations. The EU Council’s resolution of June 9, 1997, about the exchange of DNA profiles states that “every country belonging to the Community is invited to organize the formation of national DNA databanks,” and “such system should offer sufficient guarantees for security and the protection of personal data.” Gazzetta Ufficiale, no. C193 (June 24, 1997): 2–3. See Eur-Lex Access to European Law, European Council Resolution of June 25, 2001, recalling Resolution of June 9, 1997, http://eurlex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=32001G0703(01)&model=guichett (accessed April 23, 2010).
27. Garofano, personal correspondence with Krimsky.
28. Maria Fronthaler was a 74-year-old woman who was raped and murdered in her home at Valle San Silvestro, a village near Dobbiaco, during the night of March 31 and April 1, 2002. The Carabinieri of the Parma RIS found a suspect after conducting a dragnet of approximately 200 village male inhabitants. They all accepted the mouth-swabbing test, and their DNA was compared with that in the seminal liquid found on the corpse. At a certain point the Carabinieri found a near match to the sample that belonged to the father of Andreas Kristler, a 20-year-old who was not living in the village at the time at which the dragnet was conducted. He was sentenced to 18 years. Pierluigi Deppentori, “Test DNA su tutti maschi del paese scopesto l’assassino di unlanziana,” La Repubblica, June 8, 2002.
30. Colonel Dr. Luciano Garofano, Carabinieri, Italy, personal correspondence with Sheldon Krimsky, January 5, 2009. Before legislation setting up the national forensic DNA database, the Italian courts had faced the case of DNA and the “tears of a statue of the Madonna.” A small statue of the Madonna belonging to a local family living in Civitavecchia, Italy was alleged to have shed tears of blood. Many local residents proclaimed this a miracle. When police had the red liquid analyzed it turned out to be human blood belonging to a male individual. A judge ordered the blood of the owner of the statue to be analyzed, in order to compare his DNA with that of the statue’s tears, The owner did not give his consent. The Constitutional Court ruled that the owner of the Madonna had a legitimate right to refuse the DNA test. “The Crying Game,” The Guardian, December 9, 2000, http://www.guardian.co.uk/theguardian/2000/dec/09/weekend7.weekend1 (accessed April 22, 2010).
33. Reservations were also expressed by the Communist Refoundation Party, worried about the “cataloguing” of citizens, while the Green Party feared that this could lead to DNA records being collected for the entire population. But other members of Parliament supported the initiative as “a measure that in terms of security finally puts Italy at the same level as the rest of Europe,” said Maurizio Fistariol, with the center-left La Margherita. See Frank M. Pizzorusso, “Will Italy Set Up a DNA Databank?” i-Italy Magazine, September 24, 2007, http://www.i-italy.org/305/will-italy-set-dna-databank (accessed April 22, 2010).
35. Qualitative and quantitative research on the two Italian leading dailies, Corriere della Sera and La Repubblica, by Marina Semiglia for her thesis for the master’s degree in scientific communication at the Scuola Internazionale Superiori di Studi Avanzati (SISSA), “DNA in Mass Media,” Trieste, February 2009. This unpublished thesis was based on the articles that appeared in 2006–2007 in which the word “DNA” is used in the forensic sphere. The reflections on bioethical themes are scanty, while the prevailing idea is that everything based on genetic data is infallible and a decisive factor.
36. As of 1992, Giuseppe Novelli was a consultant for Home Affairs, Scientific Section, and was also a member of the Bio-security Commission for the President and of the National Commission for Genetic Tests for the Ministry of Health. Telephone conversation with Gianna Milano, February 2, 2009.
37. Andrea Monti, personal correspondence with Gianna Milano, February 2, 2009.
14. Privacy and Genetic Surveillance
1. Osborn v. United States, 385 U.S. 343 (December 12, 1966).
2. Statement of Senator Edward Kennedy in support of the Genetic Information and Nondiscrimination Act, Congressional Record—Senate 153, no. 12 (January 22, 2007): S847.
3. Anita L. Allen, “Genetic Privacy: Emerging Concepts and Values,” in Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era, ed. Mark A. Rothstein (New Haven, CT: Yale University Press, 1997), 39.
5. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court ruled that the Bill of Rights entails a broad right to privacy that prohibits states from criminalizing an individual’s decision to use contraception.
6. Human Genetics Commission, Nothing to Hide, Nothing to Fear? Balancing Individual Rights and the Public Interest in the Governance and Use of the National DNA Database (London: Human Genetics Commission, November 2009), 45.
8. George J. Annas, “Genetic Privacy,” in DNA and the Criminal Justice System: The Technology of Justice, ed. David Lazer (Cambridge, MA: MIT Press, 2004), 136.
9. P. R. Billings, M. A. Kohn, M. de Cuevas, J. Beckwith, J. S. Alper, and M. R. Natowicz, “Discrimination as a Consequence of Genetic Testing,” American Journal of Human Genetics 50 (March 1992): 476–482.
11. Declaration of Aakash Desai in support of motion for preliminary injunction in Haskell v. Brown, 677 F. Supp. 2d 1187 (N.D. Cal. 2009).
15. See John D. H. Stead, Jérôme Buard, John A. Todd, and Alec J. Jeffreys, “Influence of Allele Lineage on the Role of the Insulin Minisatellite in Susceptibility to Type 1 Diabetes,” Human Molecular Genetics 9, no. 20 (2000): 2929–2935. See also D. Concar, “Fingerprint Fear,” New Scientist (May 2, 2001), http://www.newscientist.com/article/dn694-fingerprint-fear.html (accessed April 24, 2010).
16. Jean McEwen, “DNA Sampling and Banking: Practices and Procedures in the United States,” in Human DNA: Law and Policy: International and Comparative Perspectives, ed. Bartha Maria Knoppers (The Hague: Kluwer Law International, 1997), 410.
17. Mark Rothstein and Sandra Carnahan, “Legal and Policy Issues in Expanding the Scope of Law Enforcement DNA Databanks,” Brooklyn Law Review 67 (2001): 127–168, quotation at 156.
18. Randall S. March and Bruce Budowle, “Are Developments in Forensic Applications of DNA Technology Consistent with Privacy Protections?” in Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era, ed. Mark A. Rothstein (New Haven, CT: Yale University Press, 1997), 226.
19. D. H. Kaye, “Behavioral Genetics Research and Criminal DNA Databases,” Law and Contemporary Problems 69 (Winter/Spring 2006): 259–299, information at 273.
20. B. Steinhardt, “Privacy and Forensic DNA Data Banks,” in DNA and the Criminal Justice System: The Technology of Justice, ed. David Lazer (Cambridge, MA: MIT Press, 2004), 173–196. See also Kaye, “Behavioral Genetics Research and Criminal DNA Databases,” 273.
21. Davina Dana Bressler, “Criminal DNA Databank Statutes and Medical Research,” Jurimetrics 43 (Fall 2002): 51–67, quotation at 66.
23. Kaye, “Behavioral Genetics Research and Criminal DNA Databases,” 282.
24. 42 U.S.C. 14132(b).
25. Bressler, “Criminal DNA Databank Statutes and Medical Research,” 64.
26. Alabama Code, para. 36-18-31, 2001.
27. Bressler, “Criminal DNA Databank Statutes and Medical Research,” 67.
28. Kaye, “Behavioral Genetics Research and Criminal DNA Databases,” 298.
29. Antony Barnett, “Police DNA Database ‘Is Spiraling Out of Control,’” Observer, July 16, 2006.
30. Kristina Staley, GeneWatch UK, The Police National DNA Database: Balancing Crime Detection, Human Rights and Privacy (London: GeneWatch UK, January 2005), 46.
32. Human Genetics Commission, Nothing to Hide, Nothing to Fear? 70.
33. Olmstead v. United States, 277 U.S. 438 (1928).
34. Katz v. United States, 389 U.S. 347 (1967), argued October 17, 1967, decided December 18, 1967.
37. Schmerber v. California, 384 U.S. 757 (1966).
38. Ferguson v. City of Charleston, 532 U.S. 67 (2001).
39. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989). The Court described a compelled urine sample as a “host of private medical facts . . . which might be revealed by the chemical analysis of the sample fluid.”
40. Cupp v. Murphy, 412 U.S. 291 (1973).
41. For example, Judge Alex Kozinski, in his dissent in United States v. Kincade, stated, “It is important to recognize that the Fourth Amendment intrusion here is not primarily the taking of the blood, but the seizure of the DNA fingerprint and its inclusion in a searchable database.” See United States v. Kincade, 379 F.3d 813 (9th Cir. 2004), at 873 (J. Kozinski, dissenting).
42. Rothstein and Carnahan, “Legal and Policy Issues,” 148n132.
44. United States v. Kincade.
45. Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995).
46. United States v. Mitchell, 2009 U.S. Dist. Lexis 103575 (W.D. Pa. November 6, 2009).
47. Anderson v. Com. Va., S.E.2d, 2007 WL 2683734 (Va.) (September 14, 2007).
49. American Society of Human Genetics, Statement, “Professional Disclosure of Familial Genetic Information,” American Journal of Human Genetics 62 (1998): 474–483, quotation at 474.
50. Annas, “Genetic Privacy,” 136.
52. Amy Harmon, “Stalking Strangers’ DNA to Fill in the Family Tree,” New York Times, April 2, 2007.
53. Shankar Vedantam, “Study Links Gene Variant in Men to Marital Discord,” Washington Post, September 2, 2008, A02.
54. James H. Fowler and Christopher T. Dawes, “Two Genes Predict Voter Turnout,” Journal of Politics 70, no. 3 (July 2008): 579–594.
15. Racial Disparities in DNA Data Banking
1. Susanne B. Haga, “Policy Implications of Defining Race and More by Genetic Profiling,” Genomics, Society and Policy 2, no. 1 (2006): 57–71, quotation at 64.
2. Troy Duster, “Behavioral Genetics and Explanations of the Link Between Crime, Violence, and Race,” in Wrestling with Behavioral Genetics: Science, Ethics, and Public Conversation, ed. Erik Parens, Audrey R. Chapman, and Nancy Press (Baltimore: Johns Hopkins University Press, 2006), 158. See also Troy Duster, “Selective Arrests, an Ever-Expanding DNA Forensic Database, and the Specter of an Early Twenty-First Century Equivalent of Phrenology,” in DNA and the Criminal Justice System: The Technology of Justice, ed. David Lazer (Cambridge, MA: MIT Press, 2004), 315–334.
3. Alex R. Piquero and Robert W. Brame, “Assessing the Race-Crime and Ethnicity-Crime Relationship in a Sample of Serious Adolescent Delinquents,” Crime and Delinquency, February 29, 2008, 390–422.
5. Troy Duster, Backdoor to Eugenics, 2nd ed. (New York: Routledge, 2003), 150–151.
8. Harry I. Levine, Jon Gettman, Craig Reinarman, and Deborah Peterson Small, “Drug Arrests and DNA: Building Jim Crow’s Database” (paper presented at the Forum on Racial Justice Impacts of Forensic DNA Databanks, New York University, June 19, 2008), citing U.S. Department of Health and Human Services, SAMHSA, Office of Applied Studies, 2005 National Survey on Drug Use & Health, Detailed Tables, Table 1.80B, “Marijuana Use in Lifetime, Past Year, and Past Month Among Persons Aged 18 to 25, by Racial/Ethnic Subgroups: Percentages, Annual Averages Based on 2002–2003 and 2004–2005,” http://www.oas.samhsa.gov/NSDUH/2k5NSDUH/tabs/Sect1peTabs67to132.htm#Tab1.80B (accessed April 26, 2010).
9. Levine et al., “Drug Arrests and DNA.”
11. Justice Policy Institute, Vortex, 8.
12. Justice Mapping Center, NYC Analysis—October 2006, Slide #7, “Men Admitted to Prison: New York City,” http://www.justicemapping.org/expertise/ (accessed May 23, 2010). The Justice Mapping Center uses computer mapping and other graphical depictions of quantitative data to analyze and communicate social policy information.
13. Pilar Ossorio and Troy Duster, “Race and Genetics,” American Psychologist 60, no. 1 (January 2005): 115–128, at 122.
14. Risher, “Racial Disparities in Databanking of DNA Profiles.”
15. Aleksandar Tomic and Jahn K. Hakes, “Case Dismissed: Police Discretion and Racial Differences in Dismissals of Felony Charges,” American Law and Economics Review 10, no. 1 (2008): 110–141.
16. Justice Policy Institute, Vortex, 3.
17. Data obtained from Stephen Saloom, policy director, the Innocence Project, May 30, 2007.
18. Rick Weiss, “Vast DNA Bank Pits Policing vs. Privacy,” Washington Post, June 3, 2006, A1.
19. Duster, “Selective Arrests,” 329.
20. Pew Center on the States, One in 100: Behind Bars in America, 2008 (Washington, DC: Pew Charitable Trusts, 2008), 6, http://www.pewcenteronthestates.org/uploadedFiles/One%20in%20100.pdf (accessed April 26, 2010). See also N. C. Aizenman, “New High in U.S. Prison Numbers,” Washington Post, February 29, 2008, A01.
21. Brett E. Garland, Cassia Spohn, and Eric J. Wodahl, “Racial Disproportionality in the American Prison Population: Using the Blumstein Method to Address the Critical Race and Justice Issue of the 21st Century,” Justice Policy Journal 5 (Fall 2008): 1–42, at 4.
22. Henry T. Greely, Daniel P. Riordan, Nanibaa’ A. Garrison, and Joanna L. Mountain, “Family Ties: The Use of DNA Offender Databases to Catch Offenders’ Kin,” Journal of Law, Medicine and Ethics 34, no. 2 (Summer 2006): 248–262, quotation at 258.
23. CODIS, “Measuring Success,” http://www.fbi.gov/hq/lab/codis/clickmap.htm (accessed May 28, 2010). The National DNA Index (NDIS) contains over 8,201,707 offender profiles and 315,789 forensic profiles as of April 2010. Ultimately, the success of the CODIS program will be measured by the crimes it helps to solve. CODIS’s primary metric, the “Investigation Aided,” tracks the number of criminal investigations where CODIS has added value to the investigative process. As of April 2010 CODIS has produced over 116,200 hits assisting in more than 114,000 investigations. The CODIS Web site statistics are updated every month.
24. D. H. Kaye and Michael E. Smith, “DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage,” Wisconsin Law Review (2003): 413–459, quotation at 452.
27. The government reports the number of arrests each year, as opposed to the number of persons arrested each year. Some individuals are arrested more than once in a given year.
29. California Department of Justice, Crime in California, 2002, 29, 66, 68, http://ag.ca.gov/cjsc/publications/candd/cd02/preface.pdf (accessed April 26, 2010). See also California Department of Justice, Justice Information Services, Bureau of Criminal Information and Analysis, Crime in California 2007 Data Tables, Table 37, http://ag.ca.gov/cjsc/publications/candd/cd07/preface.pdf (accessed April 26, 2010).
30. Jerome G. Miller, “African American Males in the Criminal Justice System,” Phi Delta Kappan 78 (June 1997): K1–K12.
31. Steven R. Donziger, ed., The Real War on Crime: The Report of the National Criminal Justice Commission (New York: HarperPerennial, 1996), 107. See also J. G. Miller, Search and Destroy: African-American Males in the Criminal Justice System (New York: Cambridge University Press, 1996).
32. In 2007 the Federal Bureau of Investigation’s Uniform Crime Reports (UCR) estimated that there were about 1,702,537 state and local arrests for drugabuse violations in the United States. http://www.fbi.gov/ucr/cius2008/data/table_29.html (accessed April 26, 2010).
33. Greely et al., “Family Ties,” 259.
36. See John D. H. Stead, Jérôme Buard, John A. Todd, and Alec J. Jeffreys, “Influence of Allele Lineage on the Role of the Insulin Minisatellite in Susceptibility to Type 1 Diabetes,” Human Molecular Genetics 9, no. 20 (2000): 2929–2935. See also D. Concar, “Fingerprint Fear,” New Scientist Space (May 2, 2001).
37. National Institutes of Health, Office of Human Subjects Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research (Washington, DC: National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, April 18, 1979), 7–9, http://ohsr.od.nih.gov/guidelines/belmont.html (accessed May 23, 2010).
38. ACLU Policy on Medical Experimentation, Policy no. 266 (1981). “It is the policy of the ACLU to oppose all nontherapeutic medical experimentation on persons held involuntarily in public institutions.”
39. Sheldon Krimsky and Tania Simoncelli, “Testing Pesticides in Humans: Of Mice and Men Divided by Ten,” JAMA 297, no. 21 (June 5, 2007): 2405–2407.
41. Avshalom Caspi, Joseph McClay, Terrie E. Moffitt, Jonathan Mill, Judy Martin, Ian W. Craig, Alan Taylor, and Richie Poulton, “Role of the Genotype in the Cycle of Violence in Maltreated Children,” Science 297 (2002): 851–854.
42. B. J. Culliton, “XYY: Harvard Researcher Under Fire Stops Newborn Screening,” Science 188 (June 17, 1975): 1284–1285.
43. J. Kim-Cohen, A. Caspi, A. Taylor, B. Williams, R. Newcombe, I. W. Craig, and T. E. Moffitt, “MAOA, Maltreatment, and Gene-Environment Interaction Predicting Children’s Mental Health: New Evidence and a Meta-analysis,” Molecular Psychiatry 11, no. 10 (October 2006): 903–913.
45. Elisa Pieri and Mairi Levitt, “Criminality in Our Genes?” Genomics Network, no. 5 (March 2007): 4–5, quotation at 5.
46. Duster, “Selective Arrests,” 331.
47. R. C. Lewontin, “The Apportionment of Human Diversity,” Evolutionary Biology 6 (1972): 381–398.
48. H. Tang, T. Quertermous, B. Rodriguez, et al., “Genetic Structure, Self-Identified Race/Ethnicity, and Confounding in Case-Control Association Studies,” American Journal of Human Genetics 76 (2005): 268–275, quotation at 268.
52. Richard S. Cooper, Jay S. Kaufman, and Ryk Ward, “Race and Genetics,” New England Journal of Medicine 348 (March 20, 2003): 1166–1170.
53. Tony N. Frudakis, Molecular Photofitting: Predicting Ancestry and Phenotype Using DNA (Amsterdam: Elsevier, 2008), 440–441.
55. Michael Lynch, Simon A. Cole, Ruth McNally, and Kathleen Jordan, Truth Machine: The Contentious History of DNA Fingerprinting (Chicago: University of Chicago Press, 2008), 37.
56. Frudakis, Molecular Photofitting, 477.
59. Duana Fullwiley, “Can DNA ‘Witness’ Race? Forensic Uses of an Imperfect Ancestry Testing Technology,” in Race and the Genetic Revolution: Science, Myth and Culture, ed. S. Krimsky and K. Sloan (New York: Columbia University Press, forthcoming), 3.
60. Frudakis, Molecular Photofitting, 489.
61. Fullwiley, “Can DNA ‘Witness’ Race?” 11.
63. Frudakis, Molecular Photofitting, 489.
16. Fallibility in DNA Identification
1. William A. Tobin and William C. Thompson, “Evaluating and Challenging Forensic Identification Evidence,” The Champion (July 2006): 12–21, quotation at 12.
3. William C. Thompson, “Tarnish on the ‘Gold Standard’: Recent Problems in Forensic DNA Testing,” The Champion (January/February 2006): 10–16, at 10.
4. William Thompson, “Actual Innocence: Lessons Learned from Incorrect Declarations of Matches” (paper presented at the Third Annual Conference of Forensic Bioinformatics, “DNA from Crime Scene to Court Room: An Expert Forum,” University of Dayton School of Law, Dayton, OH, August 20–22, 2004), http://www.bioforensics.com/conference04/Actual_Innocence/index.html (accessed April 28, 2010).
5. In the early days of DNA typing it was harder for DNA tests to be contaminated because more of the sample was needed in order for it to be detected. Today a lab needs only 40 cells to produce a DNA profile. Ruth Teichroeb, “Rare Look Inside State Crime Labs Reveals Recurring DNA Test Problems,” Seattle Post-Intelligencer, July 22, 2004.
6. D. R. Paoletti, C. M. Krane, M. L. Raymer, and D. Krane, “Empirical Analysis of the STR Profiles Resulting from Conceptual Mixtures,” Journal of Forensic Analysis 50 (2005): 1–6.
7. Thompson, “Tarnish on the ‘Gold Standard,’” 10–11.
10. Thompson, “Tarnish on the ‘Gold Standard,’” 14.
11. Erin Murphy, “The Art in the Science of DNA: A Layperson’s Guide to the Subjectivity Inherent in Forensic DNA Typing,” Emory Law Journal 58 (2008): 489–512, at 503.
12. William C. Thompson, Simon Ford, Travis E. Doom, Michael L. Raymer, and Dan E. Krane, “Evaluating Forensic DNA Evidence, Part 2,” The Champion (April 2003): 16–25, quotation at 21.
13. This assertion of twin genetic identity has recently been questioned because new evidence reveals that so-called identical adult twins may not have identical DNA sequences. Charles Q. Choi, “Identical Twins Are Not Genetically Identical,” Scientific American 298 (May 2008): 24–26.
14. See Dan Krane, “Random Match Probability,” presentation at the Forensic Bioinformatics 2nd Annual Conference, “Statistics and DNA Profiling,” August 29–30, 2003, Wright State University, Dayton, OH, http://www.bioforensics.com/conference/RMP/ (accessed April 28, 2010).
15. Sheri Fink, “Reasonable Doubt,” Discover Magazine 27, no. 8 (July 2006): 54–58, quotation at 57.
16. This example comes from William C. Thompson, “The Potential for Error in Forensic DNA Testing (and How That Complicates the Use of DNA Databases for Criminal Investigation)” (paper produced for the Council for Responsible Genetics [CRG] and its national conference, “Forensic DNA Databanks and Race: Issues, Abuses and Action,” New York University, June 19–20, 2008).
17. William Thompson, personal correspondence, with Sheldon Krimsky, August 2008.
18. Dan Krane, personal correspondence with Sheldon Krimsky, December 6, 2007.
19. As of 2008 the FBI reported that 248,943 forensic profiles and 6,539,919 known profiles had been accumulated on CODIS, making it the largest DNA data bank in the world, surpassing the United Kingdom’s National DNA Database, which consisted of an estimated 5,617,604 subject profiles as of March 2009. http://www.fbi.gov/hq/lab/html/codisbrochure_text.htm (accessed April 28, 2010); http://www.npia.police.uk/en/docs/NDNAD07-09-LR.pdf (accessed April 28, 2010).
21. David H. Kaye. “Trawling DNA Databases for Partial Matches: What Is the F.B.I. Afraid of?” Cornell Journal of Law and Public Policy 19 (2009): 145–171, at 155–158.
22. National Policing Improvement Agency, Association of Chief Police Officers, DNA Good Practice Manual, 3rd ed. (2007), 12: “Although the technology used for profiling DNA is extremely refined, it does not enable scientists to say with complete certainty that a DNA sample taken from an individual person is unique. As a result, a match is a matter of very high probability but not absolute certainty. Therefore, evidence of a match between a sample recovered from a scene of crime and a DNA sample taken from a suspect can be compelling but not conclusive evidence on its own, of presence at the crime scene. A corroborative piece of evidence is needed to remove all doubt.” http://www.npia.police.uk/en/docs/Stage_One_EIA__ACPO_DNA.pdf (accessed April 28, 2010).
23. Committee on DNA Forensic Science: An Update, National Research Council, The Evaluation of Forensic DNA Evidence (Washington, DC: National Academy Press, 1996), 32.
24. Devlin, “Devlin’s Angle.”
26. Thompson, “Potential for Error in Forensic DNA Testing.”
27. David J. Balding, Weight-of-Evidence for Forensic DNA Profiles (Chichester, UK: John Wiley and Sons, 2005), 32, 93.
28. Thompson, “Potential for Error in Forensic DNA Testing,” 8.
29. Erica Haimes, “Social and Ethical Issues in the Use of Familial Searching in Forensic Investigations: Insights from Family and Kinship Studies,” Journal of Law, Medicine and Ethics 34 (Summer 2006): 263–276.
30. Richard Willing, “Criminals Try to Outwit DNA,” USA Today, August 28, 2000.
31. Joseph Hixson, The Patchwork Mouse (Garden City, NY: Anchor Press/Doubleday, 1976).
32. Gina Kolata, “Clone Scandal: ‘A Tragic Turn’ for Science,” New York Times, December 16, 2005, A6.
33. Arthur Koestler, The Case of the Midwife Toad (New York: Random House, 1972).
35. David P. Leonard, “Different Worlds, Different Realities,” Loyola of Los Angeles Law Review 34 (January 2001): 863–894, quotation at 885.
36. Merrick Bobb, “Symposium: New Approaches to Ensuring the Legitimacy of Police Conduct: Civilian Oversight of the Police in the United States,” Saint Louis University Public Law Review 22 (2003): 151–166, quotation at 151.
37. William C. Thompson, “DNA Evidence in the O. J. Simpson Trial,” University of Colorado Law Review 67 (Fall 1996): 827–857.
38. C. Rosen, “Liberty, Privacy and DNA Databases,” New Atlantis 1 (2003): 37–52, at 52.
39. Willing, “Criminals Try to Outwit DNA.”
40. Dan Frumkin, Adam Wasserstrom, Ariane Davidson, and Arnon Grafit, “Authentication of Forensic DNA Samples,” Forensic Science International: Genetics 4, no. 2 (June 2009): 95–103.
41. Andrew Pollack, “DNA Evidence Can Be Fabricated, Scientists Show,” New York Times, August 18, 2009.
42. Eleona Mayne and Sophie Borland, “The Mother and Three Children Who Didn’t Share Her DNA,” Mail on Sunday (London), March 5, 2006.
44. O. L. Strain, J. C. S. Dean, M. P. R. Hamilton, and D. T. Bonthron, “Brief Report: A True Hermaphrodite Chimera Resulting from Embryo Amalgamation After In Vitro Fertilization,” New England Journal of Medicine 338 (January 15, 1998): 166–169.
45. Howard Wolinsky, “A Mythical Beast: Increased Attention Highlights the Hidden Wonders of Chimeras,” European Molecular Biology Organization (EMBO) Reports 8, no. 3 (2007): 212–214, quotation at 212.
46. Catherine Arcabascio, “Chimeras: Double the DNA—Double the Fun for Crime Scene Investigators, Prosecutors and Defense Attorneys?” Akron Law Review 40 (2007): 435–464, statistics at 444.
47. Gina Kolata, “Cheating, or an Early Mingling of the Blood,” New York Times, May 10, 2005.
48. Wolinsky, “Mythical Beast,” 214.
49. Arcabascio, “Chimeras,” 454.
17. The Efficacy of DNA Data Banks
1. Carole McCartney, “The DNA Expansion Programme and Criminal Investigation,” British Journal of Criminology 20 (2005): 175–192, quotation at 178.
2. Senator Joseph L. Bruno, majority leader, New York State Senate, news release, July 16, 2007.
3. A lifelong estrogen supplement for women was the recommendation made in Robert A. Wilson’s best-selling book Feminine Forever (New York: Lippincott, 1966).
4. As of March 2008 the FBI reported that the database contained 98,748 arrestee profiles. Tom Callaghan, director, FBI CODIS Unit, presentation at the National Symposium on Familial Searching, Arlington, VA, March 17–18, 2008.
5. The FBI CODIS Web site provides the following statistics for the database. As of March 2010, NDIS contained 8,080,941 “offender” profiles and 311,560 crime scene profiles. http://www.fbi.gov/hq/lab/codis/clickmap.htm (accessed April 30, 2010).
7. William C. Thompson, “Tarnish on the ‘Gold Standard’: Recent Problems in Forensic DNA Testing,” The Champion (January/February 2006): 10–16, at 13.
9. McCartney, “DNA Expansion Programme and Criminal Investigation,” 182.
12. McCartney, “DNA Expansion Programme and Criminal Investigation,” 183.
13. U.K. National DNA Database, Annual Report 2005–6 (London: Home Office, 2006), 37.
16. The Home Office claims that the decline in the match rate was largely the result of replicate sampling following the introduction of new sampling kits; however, a major increase in subject testing was due to implementation of the Criminal Justice Act, which requires DNA profiling of anyone arrested for any recordable offense.
18. U.K. National DNA Database, Annual Report 2003–4, 23.
20. U.K. National DNA Database, Annual Report, 2005–6, 14.
22. “Violent crime” includes offenses of murder, forcible rape, robbery, and aggravated assault. “Property crime” includes offenses of burglary, larceny-theft, and motor-vehicle theft. FBI, Crime in the United States 2002, “Index of Crime,” table 2 (Washington, DC: FBI, 2002), http://www.fbi.gov/ucr/02cius.htm (accessed May 1, 2010).
23. Wallace, “DNA Expansion Programme,” 7.
26. Sarah V. Hart, Director, National Institute of Justice, Report to the Attorney General on Delays in Forensic DNA Analysis (Washington, DC: National Institute of Justice, March 2003), 2.
29. William C. Thompson, “The Potential for Error in Forensic DNA Testing (and How That Complicates the Use of DNA Databases for Criminal Identification)” (paper produced for the Council for Responsible Genetics [CRG] and its national conference, “Forensic DNA Databanks and Race: Issues, Abuses and Action,” New York University, June 19–20, 2008), 14.
30. Jenny Rushlow, “Rapid DNA Database Expansion and Disparate Minority Impact,” GeneWatch 20, no. 4 (August 2007): 7.
31. Rockne Harmon (Alameda County District Attorney’s Office), comment during afternoon breakout session, “DNA Fingerprinting and Civil Liberties: Workshop #4,” hosted by the American Society of Law, Medicine and Ethics, JFK School of Government, Cambridge, MA, September 16–17, 2005.
18. Toward a Vision of Justice
1. Fred Bieber, statement in a video promoting DNA collection from arrestees, “Why Should Your State Pass DNA Arrestee Testing Laws?” available through DNA Saves, http://www.dnasaves.org/video/ (accessed May 6, 2010).
2. Sheila Jasanoff, “Just Evidence: The Limits of Science in the Legal Process,” Journal of Law, Medicine and Ethics 34, no. 2 (Summer 2006): 328–341, quotation at 339.
3. Simon Cole, “How Much Justice Can Technology Afford? The Impact of DNA Technology on Equal Criminal Justice,” Science and Public Policy 34, no. 2 (March 2007): 95–107, quotation at 105.
6. In Kyllo v. United States, 533 U.S. 27 (2001), the Supreme Court reversed Kyllo’s conviction for growing marijuana, finding that the use of a thermal-imaging device from a public vantage point to monitor the radiation of heat from a person’s home was a “search” within the meaning of the Fourth Amendment and thus required a warrant. (See chapter 6, box 6.2, on Kyllo v. United States.)
7. Bruce Budowle, “Declaration in Support of Motion for Preliminary Injunction,” Haskell v. Brown, 677 F. Supp. 2d 1187 (N.D. Cal. 2009), 11.
8. Susan Haack, “Inquiry and Advocacy, Fallibilism and Finality: Culture and Inference in Science and the Law,” Law, Probability and Risk 2 (2003): 205–214.
9. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County et al., U.S. Supreme Court, no. 03-5554, decided June 21, 2004, http://www.law.cornell.edu/supct/pdf/03-5554P.ZO (accessed May 6, 2010). The majority of the court upheld a Nevada law requiring a person to identify himself or herself to a police officer during an investigative stop. “A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.”
10. United States v. Mitchell, 2009 U.S. Dist. LEXIS 103575 (W.D. Pa., November 6, 2009).
11. New York State introduced a rule permitting partial DNA matches in December 2009. Jeremy W. Peters, “New Rule Allows Use of Partial DNA Matches,” New York Times, January 25, 2010.
12. Elizabeth E. Joh, “Reclaiming ‘Abandoned’ DNA: The Fourth Amendment and Genetic Privacy,” Northwestern University Law Review 100 (2006): 857–884, quotation at 882.