Concerning the use of Familial DNA Searching during Criminal Investigations
Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers
February 23, 2013
WHEREAS familial DNA testing of convicted offender data bases has been justified on the troubling premise that relatives of people convicted of crimes are more likely themselves to have perpetrated crimes;
WHEREAS the criminal justice system disproportionately arrests and convicts people of color and thus people of color are disproportionately represented in DNA databases;
WHEREAS there is presently insufficient data demonstrating the effectiveness of using familial DNA searching as a law enforcement tool;
WHEREAS in states in which familial DNA searching is used, there is currently no procedure in place to allow an individual contesting his guilt of a violent offense, when identity is at issue and the individual has been excluded as the donor of a biological sample recovered at the crime scene, to take advantage of the procedure in order to attempt to locate the true perpetrator;
WHEREAS current guidelines and regulations concerning the use of DNA databases vary from state to state, are subjective and lack significant oversight;
WHEREAS states now collect DNA samples from individuals upon arrest and prior to conviction, and in some cases prior even to a finding of probable cause;
WHEREAS the seizure of DNA samples through discarded materials implicates privacy interests and raises concerns about civil liberties;
WHEREAS absent adequate procedural safeguards, the use of familial DNA searching allows law enforcement during a criminal investigation to target innocent individuals who have never been arrested or convicted of crimes, which carries negative social stigmas and significant consequences;
WHEREAS, pursuant to the action of this board on February 23, 2013, NACDL opposes the use of familial DNA searching during criminal investigations;
THEREFORE IT IS RESOLVED that, to the extent that such searches are permitted, the federal government or states should enact legislation authorizing the use familial searches only if such searching, at a minimum, adheres to the following requirements:
- An Independent Body is Created to Study the Costs and Benefits of Familial DNA Testing
- The authorizing statute must create an independent body to study the effectiveness of Familial DNA testing and report its results annually in a publicly available report to the legislature authorizing the testing.
- The authorizing legislation sunset after three years so that it can be re-authorized only after a consideration of the dada collected and analyzed by the independent body referenced above.
- Reasonable Limitations to Prevent DNA Dragnets
- A determination, based on empirical research, of where the kinship index threshold shall be set and approximately how large a candidate list will be generated for investigation with each search, that minimizes the danger that innocent individuals will be subject to investigation;
- Data collection by an appropriate body;
- A judicial warrant requirement to start the process based upon the judicial officer being satisfied by a preponderance of the evidence that the case meets well established criterion.
The criterion should include:
- The requirement of a single source biological sample
- A serious offense under investigation with the qualifying offense delineated.
- Traditional investigative techniques have been exhausted and have failed to produce results
- There is an ongoing public safety issue because the perpetrator has not been identified.
- Partial match searching will involve only the profiles obtained from convicted felons.
- Protocols to Minimize Intrusions on Individual Privacy Interests
- A showing that the least intrusive investigative methods will be employed;
- Notification of the individual(s) investigated at an appropriate time;
- No individual’s DNA sample or profile that is obtained in connection with such an investigation be maintained in any database or in any lab and the DNA sample or profile may not be used for any other purpose than to rule in or out this individual in this case;
- A complete record on the disposition of the DNA samples collected from individuals who are determined to be non-matches to the crime scene evidence;
- To the extent that Y-STR profiles generated from samples of convicted offenders on a candidate list are retained, no such profile shall be used for any purpose other than future familial searches;
- Collection of data regarding the law enforcement cost and hours expended with each follow-up DNA test (e.g., Y-STR) run pursuant to a familial search, which must be provided to the independent body referenced above;
- Unless and until it is determined that a suspect’s DNA profile matches that of the single source forensic sample recovered from the crime scene, law enforcement may only interview a suspect identified by familial DNA testing if that suspect is first told he is a relative of someone for whom law enforcement has obtained a partial match in an unsolved crime and that such a match is not conclusive proof that the DNA recovered from the unsolved crime belongs to the suspect. Law enforcement is then required to give Miranda warnings to the suspect before questioning him, whether or not the suspect is in custody. Any statement obtained in violation of this provision shall not be admissible at any judicial proceeding.
- Data Collection Requirements to Facilitate Cost-Benefit Analysis
- Collection of data on how many individuals are investigated to determine whether one might match the crime scene evidence and the cost (hours and dollars) expended on the investigation;
- Collection of data to determine, based upon experiences with existing partial match programs, approximately what percentage of candidates are ruled out by additional DNA searching;
- Collection regarding the law enforcement cost and hours expended with each follow-up DNA test (e.g., Y-STR) run pursuant to a familial search;
- Collection of data on the number of innocent individuals who are investigated following a partial match search;
- Collection of data on the race and/or ethnicity of those being investigated;
- Collection of data regarding when one state or the defense requests biological information from a second state and the state refuses to release biological samples or other candidate information (e.g., pursuant to state law prohibiting partial match searches);
- Equal Defense Access and Process for Inter-jurisdictional Conflict
- A process for addressing circumstances when a state refuses to provide biological samples or other candidate information (e.g., pursuant to state law prohibiting partial match searches);
- Familial DNA searching be equally available to the defense. A procedure should be established whereby:
A defendant may initiate familial searching in a case to attempt to locate the perpetrator of an offense upon making application to the appropriate court showing by a preponderance of the evidence that:
- A single source biological sample exists under circumstances that indicate that the source of the sample was a perpetrator of the alleged offense.
- Defendant is charged with a serious offense with the qualifying offense delineated.
- Identity is an issue in the case.
- The defendant has been excluded as the donor of the crime scene sample.