Evolutions in DNA Forensics

The human body is our vessel for life’s journey.1 In the laboratory, its blueprint becomes the prosecutor of crimes and the liberator of innocents. Since its inception as a forensic tool,2 DNA has had a dual nature: (1) scientifically girded evidence of guilt; and (2) hard to access proof of innocence.3 Still, the convolutions of DNA science are prompting new questions about societal and legal values including privacy, accuracy, and accessibility.4

Plea bargaining, in the light of DNA exonerations, has become a bottleneck for wrongful convictions;5 genetic investigations are evoking the specter of racial profiling;6 the use of low copy and shed DNA is pushing the limits of evidentiary boundaries;7 and discovery of the source codes behind laboratory analytics has become the next challenge for procedural due process.8

We live in a chimeric culture where anything will soon be possible and genetic material endlessly collected and analyzed with little oversight.9 Rights will be defined by the ultimate fusion of science and law.10 Indeed, the day will come, when a genetic sketch artist with a 3-D printer will be producing suspects on demand.11 So it is that the achievements of science test the limits of the jurisprudence.

This article is a collection of recent and notable developments concerning DNA as forensic science, metric of guilt, herald of innocence, and its emerging place in the debate over privacy and surveillance.

LEGISLATION

H.R.320 – Rapid DNA Act of 2015
“To establish a system for integration of Rapid DNA instruments for use by law enforcement to reduce violent crime and reduce the current DNA analysis backlog.”

18 U.S.C. S 3600 Innocence Protection Act of 2004
“To protect crime victims’ rights, to eliminate the substantial backlog of DNA samples collected from crime scenes and convicted offenders, to improve and expand the DNA testing capacity of Federal, State, and local crime laboratories, to increase research and development of new DNA testing technologies, to develop new training programs regarding the collection and use of DNA evidence, to provide post-conviction testing of DNA evidence to exonerate the innocent, to improve the performance of counsel in State capital cases, and for other purposes.” [H.R. 5107]

CASES

Armstrong v. Daily, 786 F.3d 529 (7th Cir. 2015)
“We affirm the district court’s decision to allow both claims to proceed. First, plaintiff’s federal due process claims against all defendants based on the destruction or loss of exculpatory evidence are not barred by the availability of state tort remedies for the same wrongs. The doctrine of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), does not apply to the actions of law enforcement officers that undermine the fairness of a criminal trial. Second, at the time of the original investigation, it was clearly established under Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961), and then Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that bad-faith destruction or loss of exculpatory evidence would violate a suspect’s due process rights. Brady made clear that the police and prosecution could not suppress exculpatory evidence. A reasonable police officer or prosecutor would not have concluded that he could instead destroy evidence to avoid disclosing it to the defense. Third, if plaintiff can show that the unconstitutional destruction of exculpatory [DNA] evidence in 2006 caused him to suffer a deprivation of liberty, he can sue for that injury without having gone through a second trial. Finally, while there is some disagreement among courts about the conditions for obtaining a civil remedy for destruction of exculpatory evidence, those disagreements do not support a qualified immunity defense. It was clearly established in 2006 that the defendants’ alleged conduct of destroying the evidence would violate defendant’s due process rights. That is sufficient to defeat the qualified immunity defense.”

Bill v. Brewer, 799 F.3d 1295 (9th Cir.2015)
“In this 42 U.S.C. S 1983 action, three Phoenix police officers allege that two other officers violated the Fourth and Fourteenth Amendments when, pursuant to a state court order, they obtained DNA samples from the plaintiffs to exclude them as contributors of DNA at a crime scene. The district court dismissed the complaint, and we affirm.”

Buffey v. Warden, 782 S.E.2d 204 (W. Va. 2015)
“Based upon the foregoing analysis, this Court finds that the State’s failure to disclose favorable DNA test results obtained six weeks prior to the Petitioner’s plea hearing violated the Petitioner’s due process rights, to his prejudice. This Court reverses the June 3, 2014, order of the Circuit Court of Harrison County and remands this matter for an order granting habeas relief and permitting the Petitioner to withdraw his guilty plea.” See also Morrisey Will Not Appeal Buffey Case, Charleston Gazette-Mail, Jan. 25, 2016 (“State Attorney General Patrick Morrisey will not file an appeal with the U.S. Supreme Court in the case of a Clarksburg man who has been in prison for 14 years because prosecutors withheld evidence while he was in the process of pleading guilt.”)

Commonwealth v. Kostka, 471 Mass. 656, 31 N.E.3d 1116 (2015)
“The Commonwealth seeks to compel Christopher Kostka to provide a saliva sample from which it may obtain Christopher’s deoxyribonucleic acid (DNA). The Commonwealth filed a motion in the Superior Court to compel the taking of a saliva sample, arguing that a DNA sample is necessary in order to determine whether Christopher is the identical or fraternal twin of his brother, Timothy Kostka, who has been indicted on charges of murder in the first degree and armed home invasion. Christopher is not a suspect in that case. A judge of the Superior Court allowed the Commonwealth’s motion and ordered Christopher to provide a buccal swab; Christopher refused to comply, and a judgment of contempt was entered against him. After the Appeals Court affirmed the judgment, Commonwealth v. Kostka, 86 Mass. App. Ct. 69, 72-73 (2014), we granted Christopher’s application for further appellate review. We conclude that the Commonwealth has not made the requisite showing, see Commonwealth v. Draheim, 447 Mass. 113 (2006), to support the compelled production of a DNA sample from an uncharged third party in a criminal proceeding and, accordingly, that the judgment of contempt must be reversed.”

Commonwealth v. Robinson, No. CC 201307777 (Pa. Ct. Com. Pl. Feb. 4, 2016)
“AND NOW, to-wit, this 4th day of February, 2016, this Court hereby DENIES, Defendant’s “Application Pursuant to Title 42 Pa.C.S.A. Section 702(B), Interlocutory orders, for Amendment to Include Certification of the Interlocutory Discovery Order Issued on December 7, 2015.” This Court denied Defendant’s discovery request for the “source code” for Cybergenetics TrueAllele Casework System, which was used to test a bandana recovered from the crime scene which the Commonwealth alleges belongs to Defendant. This source code is the intellectual property of Cybergenetics.”

Crabbs v. Scott, 786 F.3d 426 (6th Cir. 2015)
“Keith Crabbs sued the Franklin County Sheriff under the Fourth (and Fourteenth) Amendment for requiring him to submit to a DNA cheek swab after a jury acquitted him of voluntary manslaughter. The sheriff responded that Ohio’s sovereign immunity insulated him from the lawsuit because state law required him to take the sample. That is not quite true. In 2010, Ohio law required criminal defendants to submit a DNA sample after a felony conviction. See Ohio Rev. Code Ann. S 2901.07(B) (West 2010). Today, Ohio law requires county sheriffs to collect DNA after a felony arrest. Ohio Rev. Code S 2901.07(B)(1)(a). The new law applies “during the intake process” to anyone arrested “on or after July 1, 2011.” Id. In this case, the relevant events straddle the July 1 start date and prompt two questions: Does the statute require a DNA sample for a felony defendant arrested before July 1, 2011, and rearrested after that date for violating bond? And does the statute require a sample after an acquittal if the sheriff was unable to collect one during the intake process? No is the answer to both questions, and for these reasons and others elaborated below the State’s sovereign immunity does not bar this civil rights action. We affirm.”

People v. Addison, 24 N.Y.S.3d 879 (N.Y. Sup. Ct. Bronx Co. 2016)
“By Decision and Order, dated September 2, 2015, this Court denied as untimely the People’s motion for an order authorizing the taking of a saliva sample from defendant Muhammad Addison (“Defendant”). The People now move to reargue. In their original moving papers, the People argued that they were entitled to such an order under CPL 240.40 based on the material and relevant evidence that a subsequent DNA comparison would yield. Though Defendant opposed the motion based on untimeliness under CPL 240.90 (1), the People never acknowledged the motion’s late filing nor proffered good cause for the delay, as required by CPL 240.90 (1).

On reargument, the People make the following assertions: (1) this Court erroneously held that the People’s motion implicates Defendant’s constitutional rights;(2) even assuming the People were obligated to demonstrate good cause, the material and relevant evidence yielded by a DNA comparison should have warranted a finding that CPL 240.90 (1)’s good-cause requirement was satisfied and the delay therefore should have been excused; (3) Defendant failed to demonstrate that he was prejudiced by the delay or that the delay was a result of prosecutorial bad faith; and (4) the length of delay between Defendant’s arraignment and the People’s motion to compel a saliva sample—here, 340 days—was de minimus, and, accordingly, the Court should have ignored the lapse (People’s Rearg Mot 5). . . .

Here, because the People’s motion implicates a constitutional right, was filed nearly one year after Defendant’s arraignment, and without any showing of good cause, this Court’s denial of the People’s application stands.”

People v. Collins, 49 Misc. 3d 595, 15 N.Y.S.3d 564 (N.Y. Sup. Ct. Kings Co. 2015)
“In these unrelated cases, defendants Collins and Peaks face violent felony charges. What the cases have in common is that the People applied to introduce DNA evidence at each defendant’s trial. In defendant Collins’ case, the People obtained two DNA “mixtures,” each apparently from three contributors, from the handlebars of a bicycle ridden by the perpetrator of a shooting. The DNA samples were very small, and so they were tested with “high sensitivity” analysis in the laboratory of New York City’s Office of the Chief Medical Examiner (OCME). After that, a new OCME software program called the Forensic Statistical Tool (FST) indicated that one DNA mixture was 972,000 times more probable if the sample originated from defendant Collins and two unknown, unrelated people than if it instead originated from three unknown, unrelated individuals. The other mixture was 19.4 times more probable if the sample originated from Collins and two unknown, unrelated people than if it instead originated from three unknown, unrelated individuals. One might reasonably expect that this evidence would be conclusive on any identity issue at trial.

In defendant Peaks’ case, the People obtained a DNA “mixture” from the bra of the victim of a sexual assault. At least one female and two males contributed DNA to the sample. Using standard DNA analysis, not “high sensitivity” analysis, and using the FST software, an analyst determined that the sample was 19.6 times more probable if the sample originated from defendant Peaks, the victim, and an unknown, unrelated person than if it instead originated from the victim and two unknown, unrelated persons. One might reasonably expect that this evidence would be highly persuasive on any identity issue at trial. Defendant Collins has moved to preclude the DNA evidence in his case on the theory that neither “high sensitivity” DNA analysis nor the FST is generally accepted in the relevant scientific community. Defendant Peaks has moved to preclude DNA evidence on the theory that the FST is not generally accepted in the relevant scientific community. This court ordered that a Frye hearing be held (see Frye v United States, 293 F 598*598 1013 [DC Cir 1923]), and the cases were consolidated for the hearing. . . .

This court concluded that evidence derived both from high sensitivity analysis and from the FST is not yet proved to be admissible under the Frye test. The court is not happy with that result. This court has heard for years about the high sensitivity initiative, with all of the incumbent expense. And this court understands as well the sincere effort that Dr. Caragine, Dr. Mitchell, and many others have put into the development of the FST. They must continue, if they are to persuade.”

People v. Ealy, 2015 IL App (2d) 131106 (Ill. App. Ct. 2015)
“A jury found defendant, James Ealy, guilty of first-degree murder, and the trial court sentenced him to a term of natural life imprisonment. On appeal, defendant argues that he is entitled to a new trial due to the cumulative prejudice of three trial errors: (1) the admission of evidence that, unlike several other people whom the police interviewed, defendant refused to consent to DNA testing, and the State’s argument to the jury that his refusal showed consciousness of guilt; (2) the exclusion of evidence that, like defendant, other residents of his apartment complex paid rent in installments each month; and (3) the State’s closing argument that an acquittal based on the absence of fingerprints or DNA evidence would improperly “reward” defendant. Defendant also argues that a new trial is necessary because the jury returned inconsistent verdicts in finding him guilty of intentional murder and not guilty of knowing murder.

The State denies any trial error. Alternatively, the State argues that (1) defendant forfeited his challenge to the admissibility of his refusal of DNA testing and (2) “any alleged evidentiary errors and instances of prosecutorial misconduct did not rise to cumulative error.”

We hold that (1) defendant preserved his challenge to the admissibility of his refusal of DNA testing; (2) the trial court abused its discretion in admitting the evidence of the refusal and allowing the State to argue that it showed consciousness of guilt; (3) the court did not abuse its discretion in excluding evidence that other residents of the apartment complex paid rent as defendant had; (4) the State’s argument that the jury should not “reward” defendant for the absence of fingerprints or DNA evidence was not prosecutorial misconduct; and (5) the admittedly inconsistent verdicts do not warrant a new trial. The State produced overwhelming evidence of defendant’s guilt such that any trial error was harmless beyond a reasonable doubt. We affirm.”

People v. M.F., 25 N.Y.S.3d 816 (N.Y. Sup. Ct. Bronx County 2016)
“Defendant M.F. is charged with Rape in the First Degree and related charges arising from an alleged incident that took place on September 5, 2010 at the Capri Motel in Bronx, New York. Defendant moved in limine for an order precluding the prosecution from seeking to admit a DNA report without calling to testify each of the five or six criminalists who had a role in preparing the report for the Office of the Chief Medical Examiner (OCME). Defendant claims his confrontation rights under the Sixth Amendment and New York law will be violated if the results of the report are allowed to be introduced through the analyst who made the final assessment of the data. . . .

In sum, the motion to bar admission of the DNA report in the absence of laboratory witnesses is separated into three distinct components: a) the initial analysis, in which the initial analyst took the alleged victim’s cervical sample, b) the machine driven testing performed by several technicians and c) the analysis of the data and the report’s conclusions as found by the supervising analyst. The initial analyst’s work is deemed to be testimonial and the technical preparation of the DNA graphs is presumed not to be testimonial subject to contrary evidence elicited at trial. The data resulting from the testing protocols will be admissible through the testimony of the witness the People have proffered, the supervising analyst. Accordingly, the defense motion is granted in part and denied in part.”

People v. Muhammad, No. 14-65263-FC (Mich. Cir. Ct. Dec. 15, 2015)
“The primary issue in this case involves statistical implications of DNA analysis conducted on a shoe recovered from an armed robbery crime scene. The Defendant does not object to the analysis’ results but contends that the statistical evaluation attached to it is unreliable and inadmissible. . . .

In conclusion, this Court finds: 1. Multiple entities have extensively tested STRmix for validity, 2. The testing process adhered to generally accepted standards, 3. Experts in the field analyzed STRmix through peer review publication, 4. Of the hundreds of tests done, the only errors discovered involved extremely low levels of DNA but no specific error rate has been developed, 5. The concept of probabilistic genotyping is accepted in the community of DNA analysts and is in the process of achieving preferred status over conventional approaches like CPI (Exhibit 21), 6. The MCMC [Monte Carlo Markov Chain] principles underlying probabilistic genotyping and the STRmix program are relied upon by experts in many fields outside the context of litigation, and 7. Courts in New York have admitted STRmix results, and courts in Pennsylvania, Virginia, New York and Ohio have admitted results from a program based upon similar principles. STRmix meets the reliability criteria for admission under MCR 702.”

People v. Wright, 25 N.Y.3d 769, 16 N.Y.S.3d 485 (2015)
“We are presented in this appeal with a confluence of prosecutorial [25 N.Y.3d 771] misconduct committed during closing argument, and a series of critical lapses by defense counsel when faced with the prosecutor’s obvious transgressions from the leeway generally afforded attorneys during summation. As the record establishes, defense counsel failed to object, time and again, when the prosecutor repeatedly misrepresented to the jury critical DNA evidence as proof of defendant’s guilt, in contradiction of the People’s expert testimony. We conclude defense counsel was ineffective, and, on the record before us, defendant was denied a fair trial as a result. Therefore, the order of the Appellate Division should be reversed.”

Phillips v. State, 226 Md. App. 1, 126 A.3d 739 (Md. Ct. Spec. App. 2015)
“This case requires us to decide what to do with a statute that appears to be obsolete regarding the admissibility of DNA evidence. Following a jury trial in the Circuit Court for Prince George’s County, appellant Richmond Phillips (“Phillips”) was convicted of two counts of murder in the first degree, one count of use of a handgun in a crime of violence, and one count of child abuse in the first degree. He was sentenced to two consecutive terms of life imprisonment without the possibility of parole. On appeal, Phillips challenges the DNA evidence the State used against him. The State argues that the DNA evidence was automatically admissible under S 10-915 of the Courts and Judicial Proceedings (“CJP”) Article of the Maryland Code. Section 10-915, however, requires that, to be admissible, a DNA profile must include certification that the analysis was performed according to standards promulgated by two entities that no longer exist. Phillips asserts that the DNA evidence failed to comply with this factually obsolete statute and, therefore, that the trial court was correct in conducting a Frye-Reed hearing to determine whether to admit the DNA evidence. Phillips alleges, however, that the trial court erred in concluding that the DNA evidence was admissible under Frye-Reed. For the following reasons, we will affirm the judgments of the circuit court.”

State v. Armstead, 2015-Ohio-5010 (Ohio Ct. App. 2015)
“{P 26} Armstead was never informed that his compliance with Det. Phillips’ requests was completely voluntary. Furthermore, Armstead was not the subject of any outstanding warrants, and Det. Phillips testified that he had no probable cause to arrest him. The fact that the trial court found that Det. Seiter had probable cause in 2012 to obtain an arrest warrant for Armstead is irrelevant to the probable cause analysis we must make as result of Det. Phillips’ actions. Det. Phillips admitted he only knew a DNA swab was needed, he knew nothing of the alleged crime or why Det. Seiter desired to talk with Armstead. We also note that Armstead’s continued detention was in no way related to the purpose of the original stop of the driver.”

United States v. De Watson, 792 F.3d 1174 (9th Cir. 2015)
“We address whether new DNA tests that make previously useless DNA capable of identification amount to “newly discovered DNA evidence” under the Innocence Protection Act . . . .

No tradition is more firmly established in our system of law than assuring to the greatest extent that its inevitable errors are made in favor of the guilty rather than against the innocent. Our legal tradition has always followed Blackstone’s principle that “it is better that ten guilty persons escape than that one innocent suffer.” The moral force of our criminal law requires this allocation of the risk of error, both with respect to standard of proof and to scientific testing of newly discovered evidence critical to guilt. “It is critical that the moral force of the criminal law not be diluted by a standard of proof [or, we suggest, a rejection of scientific testing] that leaves people in doubt whether innocent men are being condemned.” Not all share our revulsion at punishment of the innocent, of course. But Americans have always been revolted by the notion that it is better that the innocent suffer than that some of the guilty go free.

Consistent with our tradition, Congress has created a device to end the suffering of the innocent, where their innocence is scientifically demonstrable by DNA evidence, even after their convictions have become final. The most hallowed principle of our criminal law, protecting the innocent, requires us to eschew a crabbed, restricted construction of the statute. Watson moved in timely fashion for previously unperformed DNA testing, based on newly discovered evidence — the results of DNA testing not possible at the time of trial — that could well prove his actual innocence and mistaken identity. His motion should have been granted.”

BOOKS AND BOOK CHAPTERS

Convicting the Innocent Redux in Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent (CUP 2015)
“My book, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” published in 2011, tells the story of the first 250 DNA exonerations in the United States. There have now been 330 DNA exonerations. There is no other country in the world in which such a large group of people have been exonerated by DNA evidence. This Chapter updates data collected when researching the book, and in many respects, the patterns remain the same. Many faced quite severe sentences. Twenty exonerees had been sentenced to death. Ninety-two were sentenced to life in prison, 12 of which were sentenced to life without parole. The vast majority, 80 percent of these DNA exonerees, were racial minorities. There have been some notable changes in the composition of the most recent set of DNA exonerations. The more recent DNA exonerations include far more murder convictions than the first 250 DNA exonerations. These changes have impacted the types of evidence prominent in the cases. Similarly high percentages of cases involve eyewitness misidentifications (70%) and forensics (69%). Most striking, more of the cases include false confessions (21%) and informant testimony (22%). Many of the most recent exonerations were particularly hard fought along the path to eventual exoneration. Often because prosecutors were swayed by confession evidence they continued to litigated cases for years, even despite DNA tests results. Indeed, 22 of the recent 80 cases involved DNA analysis, 18 of which DNA exclusions of individuals that were nevertheless convicted; 3 more of which involved DNA exclusions concealed from the defense, and one more case, which involved a sample mix-up leading to an error in DNA analysis. Of the 227 cases that involved forensic evidence, 46% or 105 cases, involved invalid, erroneous, or concealed forensics. Almost half of the cases with eyewitness identifications involved cross-racial identifications. Twenty-nine of these inmates received vacaturs during appeals or post-conviction occurring prior to their DNA exonerations, representing 14% of the 204 that had written decisions published by judges. These most recent exonerations are particularly troubling, because some of the same underlying practices that can lead to wrongful convictions are with us today, even if reforms are spreading and attitudes towards criminal justice are shifting.”

Cops in Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories (CAP 2015)
“Situated firmly at the intersection of the courtroom and the lab room, Cops in Lab Coats illustrates the legal and personal gravity of forensic science as a tool for police and lawyers alike. Thompson combines her studies of wrongful convictions, scientific mishandling in the lab room, and the legal interplay of analysts and lawyers to hone in on the need for independent crime labs nationwide. Cops in Lab Coats brings a fresh and critical perspective to the world of forensic science and illustrates the dire need for independence between crime labs and police departments across the country.”

Damning Cascade of Investigative Errors: Flaws in Homicide Investigation in the USA in The Handbook on Homicide (Wiley-Blackwell 2016)
“This chapter explores the investigative errors, prosecutorial misconduct, and flawed police procedures that are often the cause of wrongful convictions in the United States. The authors [Deborah Davis and Richard A. Leo] discuss the difficulty of the criminal investigative process and the inevitable infusion of bias during investigations, giving specific examples of the cognitive and motivational biases that may permeate both investigations and trials. The authors argue that judgment about specific evidence is both shaped by, and itself shapes, judgments of other evidence, which may lead to an escalation of errors during the course of an investigation. In order to reduce these procedural errors, the United States must consider certain reforms, such as removing forensic testing units from police departments, prohibiting the introduction of trial evidence based on invalid or untested forensic methods, and reforming the interrogation process.

Inside the Cell: The Dark Side of Forensic DNA (Nation Books 2015)
“Josiah Sutton was convicted of rape. He was five inches shorter and 65 pounds lighter than the suspect described by the victim, but at trial a lab analyst testified that his DNA was found at the crime scene. His case looked like many others—arrest, swab, match, conviction. But there was just one problem—Sutton was innocent. We think of DNA forensics as an infallible science that catches the bad guys and exonerates the innocent. But when the science goes rogue, it can lead to a gross miscarriage of justice. Erin Murphy exposes the dark side of forensic DNA testing: crime labs that receive little oversight and produce inconsistent results; prosecutors who push to test smaller and poorer-quality samples, inviting error and bias; law-enforcement officers who compile massive, unregulated, and racially skewed DNA databases; and industry lobbyists who push policies of “stop and spit.” DNA testing is rightly seen as a transformative technological breakthrough, but we should be wary of placing such a powerful weapon in the hands of the same broken criminal justice system that has produced mass incarceration, privileged government interests over personal privacy, and all too often enforced the law in a biased or unjust manner. Inside the Cell exposes the truth about forensic DNA, and shows us what it will take to harness the power of genetic identification in service of accuracy and fairness.”

Negotiating Accuracy: DNA in the Age of Plea Bargaining in Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent (CUP 2015)
“Hundreds of exonerations have made DNA a kind of poster child for the innocence movement and the demand for more accurate evidence in criminal cases. But most wrongful convictions are not simply the result of evidentiary mistakes. In the marketplace of plea bargaining, convictions are the result of numerous inputs — a defendant’s criminal record, prosecutorial bargaining habits, the size of the trial penalty, whether the defendant is out on bail — that have nothing to do with the accuracy of the evidence. The bargained nature of these convictions means that accurate evidence is just one piece — and not always the most important piece — of the larger negotiation process that establishes guilt. We might say that the plea process is structurally tolerant of inaccuracy, precisely because it transforms accuracy into a commodity that may be traded and negotiated away in exchange for agreement. This is a recipe for wrongful conviction. The innocence movement, for example, has uncovered numerous cases where innocent defendants pled guilty to homicide and rape in order to avoid the death penalty. The pressures to plead are likewise pervasive in the misdemeanor system, in which thousands of people are rushed through assembly-line processes and routinely plead guilty to minor crimes of which they are demonstrably innocent. Ultimately, we should recognize plea bargaining as a source of wrongful conviction in its own right, and add it to the canonical list of wrongful conviction sources such as mistaken eyewitness testimony, lying informants, and bad forensics.”

Race and the Law in the Genomic Age: A Problem for Equal Treatment Under the Law, SSRN (2015)
“This is the “Age of Genomics”, and yet people who study race and the law often resist integrating biological insights into their understanding of human psychology and behavior. The historical reasons for this resistance are understandable, but the biological sciences have been undergoing a recent renaissance, which creates a contemporary problem of translation. This article explains why the appropriate response of the law to recent developments in the evolutionary and biological sciences is to recognize that there is more, rather than less, cause for concern with respect to how racial concepts typically function in the law. The short reason is twofold. First, belief in race is prone to function in ways that are far more prejudicial than probative of most issues relevant to criminal or civil liability. Second, racial concepts function automatically and unconsciously, often without racial animus or discriminatory intent. Hence, current equal protection doctrine, which requires a finding of discriminatory intent and is the central legal mechanism for guaranteeing the equal treatment of persons under the law, is poorly suited to guarantee equal treatment.

In fact, properly understood, evolutionary and biological paradigms offer support for many of the central empirical claims that critical race theorists have been making about race, law and society for some time now. Among those that Devon Carbado and Daria Roithmayr identify as “key modernist claims of the theory about which there is general consensus among practitioners in the United States” are the following: (1) “Racial inequality is hardwired into the fabric of our social and economic landscape”; (2) “Race is [nevertheless] a social construction whose meanings and effects are contingent and change over time”; (3) “Racial stereotypes are ubiquitous in society and limit the opportunities of people of color”; (4) “Because racism exists at both the subconscious and conscious levels, the elimination of intentional racism would not eliminate racial inequality”; (5) “The concept of color blindness in law and social policy and the argument for ostensibly race-neutral practices often serve to undermine the interests of people of color” (Carbado & Roithmayr 2014). Although critical race theorists have typically rejected evolutionary and biological paradigms, an increasing number have begun to argue for more direct engagement with the social sciences (Carbado & Roithmayr 2014). This chapter, written for the section on biology for the Oxford Handbook on Law and Technology, suggests that there may be room for cross-fertilization with the evolutionary and biological sciences as well.

The chapter ends by identifying four legal and policy implications. First, remedial forms of affirmative action should be used to cure not only for past practices of intentional discrimination but also for continuing effects of current unconscious discrimination. The shelf life of affirmative action is not likely to expire anytime soon, and its remedial use should be broadened. Second, the Supreme Court should reinterpret the Equal Protection Clause of the United States Constitution so that it protects against not only intentional discrimination but also any disparate impact caused by racial beliefs that regularly function to produce inequality, as described in this chapter. Third, more policy focus should be placed on integration — a goal that has largely been abandoned since the last concerted efforts to enforce Brown v. Board of Education in the 1980s (Anderson 2011). Fourth, state actions and police policies that impact minorities should be based on deliberations that involve more diverse constituents. Mechanisms to produce racially diverse juries should be developed in some criminal and antidiscrimination cases.”

REPORTS

Communicating the Results of Forensic Science Examinations (NIST 2015)
“During the 20th century, forensic scientists traditionally relied on heuristic techniques to analyze and compare forensic science evidence that can help link a suspect or defendant to the location or victim of a crime. They commonly reported categorical opinions on the evidence in courts. Drawing on developments in forensic statistics and DNA evidence, legal and scientific scholars have pressed forensic scientists to measure the validity and reliability of their techniques and to evaluate and quantify the weight of the evidence in each case in a fair, balanced and transparent fashion. A successful transition from an opinion-based system to one in which measurements are more quantitative and opinions are supported by statistical analyses requires investigating the nature of forensic inference processes and the findings of cognitive psychology on how to best convey scientific information to decision makers. This report on communicating the results of forensic science examinations was prepared for the Office of Law Enforcement Standards (OLES) of the National Institute of Standards (NIST) following the creation of an expert working group selected to provide expertise in forensic science, law, psychology, and statistics. It includes an overview of the nature of forensic inference (written by Graham Jackson); a survey of the current modes of presenting forensic identification findings (David Kaye); a review of jury studies and the psychology of efficient communication (Cedric Neumann and Valerie Reyna); conclusions and recommendations for improving communication (Cedric Neumann and Anjali Ranadive). Also included is a pilot study performed by Damon Bayer, Cedric Neumann, and Anjali Ranadive designed to compare the understanding and rational usage of forensic information by individuals confronted with likelihood ratios presented in different manners and to explore the challenge of measuring people’s understanding of that information.”

Cops in Lab Coats and Forensics in the Courtroom, SSRN (2015)
“Law enforcement’s past cover-ups of faulty forensics is at the heart of Sandra Guerra Thompson’s new book, Cops in Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories. Thompson posits that forensic labs should be independent, rather than controlled by prosecutors and used to convict persons no matter the human cost. In brief, Thompson’s book captures the recent history of forensic validation — and invalidation — and its critical impact on the criminal justice system. Her inclusion of wrongful convictions mirrors the national conversation where innocence is the primary impetus to ensure that forensic disciplines become more reliable, forensic findings more testable, and forensic inquiries more independent.”

Notification re: FBI Allele Frequency Corrections and DNA Mixture Interpretation Issues in Texas (Tex. For. Sci. Comm’n 2015)
“This letter provides notification to the community regarding an issue of potential concern to judges, criminal prosecutors, criminal defense lawyers, victims and defendants in the Texas criminal justice system. The concerns involve the interpretation of DNA results where multiple contributors may be present, commonly referred to as DNA mixture interpretation. The attached document details the origin and scope of the concerns. While the Commission assess the issues described in the attached document, we recommend any prosecutor, defendant or defense attorney with a currently pending case involving a DNA mixture in which the results could impact the conviction consider requesting confirmation that Combined Probability of Inclusion/Exclusion (referred to as “CPI” or “CPE”) was calculated by the laboratory using current and proper mixture interpretation protocols. If the laboratory is unable to confirm the use of currently accepted protocols for the results provided, counsel should consider requesting a re-calculation of CPI/CPE. The extent to which any closed criminal cases may require re-analysis will be a subject of Commission review and subsequent notification to the stakeholder community.”

SCHOLARLY ARTICLES

As Though They Were Not Children: DNA Collection from Juveniles, 89 Tulane L. Rev. 435 (2014)
“The federal government and every state but Hawaii mandate DNA collection from juveniles as a result of some contact with the criminal justice system. A conviction in criminal court, a delinquency adjudication in juvenile court, and even a mere arrest can trigger compulsory DNA collection. Law enforcement also seeks DNA from juveniles based on their consent. This Article provides a comprehensive accounting of current juvenile DNA collection legislation and case law. It situates DNA collection from juveniles within the law’s long-standing and renewed emphasis on special treatment of children both generally and with particular attention to criminal law and juvenile justice. Bringing to bear Supreme Court jurisprudence, neuroscientific and psychosocial research, juvenile court history, and the critical lens of childhood studies, it argues that compulsory DNA collection from juveniles is not reasonable under the Fourth Amendment and cannot withstand scrutiny. The government interests served by DNA profiling are reduced with respect to juveniles, and the privacy interests are enhanced. Many of its benefits, including deterrence, are lost with regard to juveniles. The Article calls for restrictions on the practice will protect children, and their childhood, while preserving law enforcement’s ability to exploit genetic databasing and aggregate data collection where its rationale justifies its application.”

Between Openness and Privacy in Genomics, 13(1) PLoS Med 1 (2016)
“Advancing genomic research depends on the accessing and sharing of genomic data. However, the increasing need for sharing escalates the tension between genomic privacy and openness. Promoting openness while protecting privacy is a challenge that cannot be overcome only with technical solutions such as encryption and differential privacy. Although such solutions are crucial, we still need to confront some fundamental normative tensions that are intensified in the era of genomics and big data. Here are at least three: The right to genomic privacy is not an absolute right. If privacy is understood as control over information or data, privacy is not about maximal levels of control, but rather about reasonable measures of control. Although individual control is necessary, it is not a sufficient safeguard of privacy. Individuals’ willingness to be open about their data does not obviate responsibility for reducing privacy risks on the part of the data users. Data governance models, such as data cooperatives, that enable meaningful and continuous roles of the individuals whose data are at stake hold promise for reconciling privacy and openness.”

Breaking Bad Science: Due Process as a Vehicle for Postconviction Relief When Convictions Are Based on Unreliable Scientific Evidence, 89 St. John’s L. Rev. 195 (2015)
“This Note argues that due process requires a new trial when scientific evidence necessary to the conviction becomes so unreliable as to call the validity of the jury’s verdict into question. Part I of this Note discusses how scientific evidence is admitted, the procedure for a convicted defendant’s postconviction relief once that evidence is deemed unreliable, and the constitutional protections that a convicted defendant is afforded under the Due Process Clause of the Fourteenth Amendment. Part II of this Note examines the divide among appellate courts as to whether the Due Process Clause requires a new trial when a conviction is based on evidence that has later been shown to be unreliable. Part III of this Note argues that due process requires a new trial when scientific evidence in the original trial is shown to be sufficiently unreliable as to compromise confidence in the accuracy and integrity of the jury verdict. A conviction later found to be based upon unreliable scientific evidence deprives the defendant of a fundamentally fair trial and thereby violates the Due Process Clause of the Fourteenth Amendment, under both procedural and substantive due process theories, because it raises an intolerable risk of an inaccurate verdict and undermines the integrity of the criminal justice system. Because the Antiterrorism and Effective Death Penalty Act impedes the rights of a petitioner to assert his or her fundamental right to a fair trial, this Note argues that the statute, as currently written and applied, should be found unconstitutional under strict scrutiny review. A new trial will ensure that innocent defendants do not fall victim to the inherent shortcomings of the scientific evidence juries so readily embrace.”

Calling Out Maryland v. King: DNA, Cell Phones, and the Fourth Amendment, 51(5) Crim. L. Bull. 1212 (2015)
“In Maryland v. King, the Supreme Court narrowly upheld a Maryland statute that permits police to obtain a DNA sample from an arrestee without a search warrant. A year later, the Court drastically changed course and provided significantly more protection to an arrestee’s privacy. In a unanimous decision, the Court in Riley v. California held that police must obtain a search warrant before they can search the cell phone of an arrestee.

This article is the first to compare the Court’s conflicting decisions in Riley and King. Riley and King present the same issue: governmental invasion of privacy for purposes of general crime solving. The Court in King refused to admit that the true purpose of obtaining an arrestee’s DNA was for crime solving, and it justified the intrusion into the arrestee’s privacy largely on the grounds that the Government would use the DNA collected to identify the arrestees. Since DNA was merely a better, more advanced form of fingerprinting, the Court argued, the use of the DNA collected from arrestees significantly furthered the Government’s interest in identification. The Court in Riley, however, recognized that a search of an arrestee’s cell phone could be for nothing more than general criminal investigation.

The Court’s holding in King is impossible to square with its holding in Riley. If a search warrant is required for police to search an arrestee’s cell phone, it follows that a search warrant should be required to search a person’s DNA. Given the significantly broader protection granted to arrestees in the later Riley decision, King has been doctrinally eroded.

In light of this doctrinal erosion and the unlikelihood that the Court will overturn King in the near future, lower courts should interpret King narrowly. State DNA statutes should be upheld only if they match the specific holding in King. DNA searches should be permissible only if the person was arrested for a violent felony, and the arrest was supported by a judicial determination of probable cause. Furthermore, if the investigation into the arrestee ceases or the charges are dropped, the DNA sample should be automatically destroyed and the records automatically expunged from the state and Federal DNA databases.”

Can DNA Be Speech?, SSRN (2014)
“DNA is generally regarded as the basic building block of life itself. In the most fundamental sense, DNA is nothing more than a chemical compound, albeit a very complex and peculiar one. DNA is an information-carrying molecule. The specific sequence of base pairs contained in a DNA molecule carries with it genetic information, and encodes for the creation of particular proteins. When taken as a whole, the DNA contained in a single human cell is a complete blueprint and instruction manual for the creation of that human being.

In this article we discuss myriad current and developing ways in which people are utilizing DNA to store or convey information of all kinds. For example, researchers have encoded the contents of a whole book in DNA, demonstrating the potential of DNA as a way of storing and transmitting information. In a different vein, some artists have begun to create living organisms with altered DNA as works of art. Hence, DNA is a medium for the communication of ideas. Because of the ability of DNA to store and convey information, its regulation must necessarily raise concerns associated with the First Amendment’s prohibition against the abridgment of freedom of speech.

New and developing technologies, and the contemporary and future social practices they will engender, necessitate the renewal of an approach towards First Amendment coverage that takes into account the purposes and values incarnated in the Free Speech Clause of the Constitution. This article proposes and applies a framework for analysis in the context of contemporary social practices that involve the manipulation of DNA, as a case study from which we can hope to gain valuable insights regarding First Amendment doctrine in general.”

Cloning Miranda: Why Medical Miranda Supports the Pre-Assertion of Criminal Miranda Rights, 2015 Wis. L. Rev. 863 (2015)
“Courts across the country have concluded that suspects cannot assert their Miranda rights before being subjected to custodial interrogation. This reluctance to credit pre-assertions can be traced to dicta from McNeil v. Wisconsin, in which the Supreme Court noted that “[m]ost rights must be asserted when the government seeks to take the action they protect against.” This article challenges this notion by drawing an analogy between criminal suspects and patients. In 1990, Congress passed the Patient Self-Determination Act (“PSDA”), the so-called medical Miranda, which requires health care providers who accept money from Medicaid or Medicare to inform patients of their rights regarding advance directives and the refusal of medical treatment prior to admission. The goal of the PSDA is to inform patients of their health care rights prior to admission so that they can assert those rights before pressed into an unfamiliar environment in which they face possible isolation and coercion. This article contends that the same principles that led to the passage of the PSDA support the ability of suspects to be able to pre-assert their Miranda rights when custodial interrogation is “imminent.” It also sets up a framework for determining whether a suspect properly pre-asserted his Miranda rights.”

Could Secondary DNA Transfer Falsely Place Someone at the Scene of a Crime?, 61 J. Forensic Sci. 196 (2016)
“The occurrence of secondary DNA transfer has been previously established. However, the transfer of DNA through an intermediary has not been revisited with more sensitive current technologies implemented to increase the likelihood of obtaining results from low-template/low-quality samples. This study evaluated whether this increased sensitivity could lead to the detection of interpretable secondary DNA transfer profiles. After two minutes of hand to hand contact, participants immediately handled assigned knives. Swabbings of the knives with detectable amounts of DNA were amplified with the Identifiler(R) Plus Amplification Kit and injected on a 3130xl. DNA typing results indicated that secondary DNA transfer was detected in 85% of the samples. In five samples, the secondary contributor was either the only contributor or the major contributor identified despite never coming into direct contact with the knife. This study demonstrates the risk of assuming that DNA recovered from an object resulted from direct contact.”

Databases, E-Discovery, and Criminal Law, 15 Rich. J.L. & Tech. 6 (2009)
“The enduring value of the Constitution is the fundamental approach to human rights transcending time and technology. The modern complexity and variety of electronically stored information was unknown in the eighteenth century, but the elemental due process concepts forged then can be applied now. At some point, the accumulation of information surpassed the boundaries of living witnesses and paper records. The advent of computers and databases ushered in an entirely new order, giving rise to massive libraries of factual details and powerful investigative tools. But electronically collected information sources are a double-edged sword. Their accuracy and reliability are critical issues in the hands of prosecutors and their accessibility a hard-won necessity in preparing a defense.

This article examines the use of computer databases and electronic evidence from both standpoints. With limited guidance from federal and state criminal discovery rules, the courts have had to rely on constitutional principles and analogies to civil procedure when faced with database and electronic document discovery requests. A tension exists between the government’s proprietary interest in preserving the sanctity of its databases and the right of the defense to assail the accuracy of the databases’ output or to use them as investigative tools. As the gold standards of forensic science have come to be questioned, so too the inviolability of government databases must be rethought. And the defense’s right to prepare its case and receive a fair trial makes it necessary to use database knowledge comparable to the prosecution. Much of this information is generated solely by the government or its experts. The civilian alternatives are prohibitively expensive, inadequate, or non-existent. This review will highlight the problems created by disparities in resources and the role of constitutional and procedural remedies in the future development of criminal electronic discovery.

The discussion is divided into several areas, beginning with an examination of the benefits of database discovery in criminal practice under Part I. Part II is an analysis of the small body of criminal electronic discovery cases involving databases and the rules that have been applied over the years. Parts III and IV analyze the constitutional foundations for defense access to government database tools under due process, compulsory process and the right to confrontation. Applications of these theories are illustrated through developments in DNA database discovery in Part V, which highlights challenges to the quality of data and the right to access DNA databanks for defense investigation. The issues that arise in challenging evidence derived from databases, particularly data relied on by experts, are discussed in Part VI. The ongoing problem of achieving defense parity with prosecution resources and the constitutional grounds for overcoming objections to disclosure or access to database information is considered in Part VII. Finally, the conclusion, Part VIII, considers the enormity of the task facing advocates as the criminal justice system, and society at large, come to terms with this next wave in the Information Revolution.”

Differentiating Between Monozygotic Twins Through DNA Methylation-Specific High-Resolution Melt Curve Analysis, 476 Analytical Biochem. 36 (2015)
“Although short tandem repeat profiling is extremely powerful in identifying individuals from crime scene stains, it is unable to differentiate between monozygotic (MZ) twins. Efforts to address this include mutation analysis through whole genome sequencing and through DNA methylation studies. Methylation of DNA is affected by environmental factors; thus, as MZ twins age, their DNA methylation patterns change. This can be characterized by bisulfite treatment followed by pyrosequencing. However, this can be time-consuming and expensive; thus, it is unlikely to be widely used by investigators. If the sequences are different, then in theory the melting temperature should be different. Thus, the aim of this study was to assess whether high-resolution melt curve analysis can be used to differentiate between MZ twins. Five sets of MZ twins provided buccal swabs that underwent extraction, quantification, bisulfite treatment, polymerase chain reaction amplification and high-resolution melting curve analysis targeting two markers, Alu-E2F3 and Alu-SP. Significant differences were observed between all MZ twins targeting Alu-E2F3 and in four of five MZ twins targeting Alu-SP (P < 0.05). Thus, it has been demonstrated that bisulfite treatment followed by high-resolution melting curve analysis could be used to differentiate between MZ twins."

DNA by the Entirety, 115 Colum. L. Rev. 873 (2015)
“The law fails to accommodate the inconvenient fact that an individual’s identifiable genetic information is involuntarily and immutably shared with her close genetic relatives. Legal institutions have established that individuals have a cognizable interest in controlling genetic information that is identifying to them. The Supreme Court recognized in Maryland v. King that the Fourth Amendment is implicated when arrestees’ DNA is analyzed, and the Genetic Information Nondiscrimination Act protects individuals from genetic discrimination in the employment and health-insurance markets. But genetic information is not like other forms of private or personal information because it is shared — immutably and involuntarily — in ways that are identifying of both the source and that person’s close genetic relatives. Standard approaches to addressing interests in genetic information have largely failed to recognize this characteristic, treating such information as individualistic.

While many legal frames may be brought to bear on this problem, this Article focuses on the law of property. Specifically, looking to the law of tenancy by the entirety, this Article proposes one possible framework for grappling with the overlapping interests implicated in genetic identification and analysis. Tenancy by the entirety, like interests in shared identifiable genetic information, calls for the difficult task of conceptualizing two persons as one. The law of tenancy by the entirety thus provides a useful analytical framework for considering how legal institutions might take interests in shared identifiable genetic information into account. This Article examines how this framework may shape policy approaches in three domains: forensic identification, genetic research, and personal genetic testing. In some of these domains, experts are already advocating for policies consistent with this framework.”

DNA Without Warrant: Decoding Privacy, Probable Cause and Personhood, 18 Rich. J.L. & Pub. Int. 319 (2015)
“An arrest is not a medical procedure and probable cause is not consent, and yet for purposes of genetic sampling they have become so. The Constitution considers people to be information containers with rights. And for the most part, the confiscation of a person’s genome in the stationhouse is a search. But the Supreme Court seems to parse constitutional privacy between data that originates from within (biologics) and data stored without (technology). Relying on the history of identification metrics, the necessity of stationhouse identification and the rationale of custodial control, the Court has lowered the threshold of biological privacy at arrest. In contrast to the low esteem in which privacy interests in the human genome seem to be held, there is a societal, even global, consensus building over the protection of privacy in digital data, such as the right to be forgotten. Today, the right to privacy in ourselves and in our machines are at loggerheads due in large part to the Supreme Court’s perceptions of privacy, probable cause and personhood. In Part I, this article explores the challenges to privacy, personhood and probable cause raised by DNA collection as identification sanctioned in Maryland v. King. Part II considers the presumed infallibility of DNA testing that undergirds the Supreme Court’s embracement of genetic identification. Lastly, in Part III, this article will try to decipher the Court’s Fourth Amendment logic in denying privacy to the information in human cells but embracing them in cell phones in Riley v. California.”

Effects of DNA Databases on Crime, SSRN (2015)
“Since 1988, every US state has established a database of criminal offenders’ DNA profiles. These databases have received widespread attention in the media and popular culture, but this paper provides the first rigorous analysis of their impact on crime. DNA databases are distinctive for two reasons: (1) they work mainly by increasing the probability that a criminal is punished rather than the severity of the punishment, and (2) they exhibit enormous returns to scale. I [Jennifer L. Doleac] exploit the details and timing of state DNA database expansions in two ways, first to address the effects of DNA profiling on individuals’ subsequent criminal behavior and then to address the impacts on crime rates. Using a regression discontinuity analysis, I show that DNA profiling deters criminal activity for both violent and property offenders. Then, using an instrumental variable approach, I show that larger DNA databases reduce crime rates, especially in categories where forensic evidence is likely to be collected at the scene — e.g., murder, rape, assault, robbery, and vehicle theft. Back-of-the-envelope estimates of the marginal cost of preventing each crime suggest that DNA databases are much more cost-effective than traditional law enforcement tools.”

Forensic DNA Phenotyping in Criminal Investigations and Criminal Courts: Assessing and Mitigating the Dilemmas Inherent in the Science, SSRN (2015)
“Forensic DNA Phenotyping (“FDP”), estimating the externally visible characteristics (“EVCs”) of the source of human DNA left at a crime scene, is evolving from science fiction toward science fact. FDP can already identify a source’s gender with 100% accuracy, and likely hair color, iris color, adult height, and a number of other EVCs with accuracy rates approaching 70%. Patent applications have been filed for approaches to generating 3D likenesses of DNA sources based on the DNA alone. Nonetheless, criminal investigators, particularly in the United States, have been reticent to apply FDP in their casework. The reticence is likely related to a number of perceived and real dilemmas associated with FDP: is FDP racial profiling, should we test unknown and unseen physical conditions, does testing for behavioral characteristics impermissibly violate the source’s privacy, ought testing be permitted for samples from known sources or DNA databases, and should FDP be limited to use in investigations only or is FDP appropriate for use in a criminal court. As this article explains, although those dilemmas are substantive, they are not insurmountable, and can be quite easily managed with appropriate regulation and protocols. As FDP continues to develop, there will be less need for criminal investigators to shy away from FDP. Cold cases, missing persons, and victims in crimes without other evidence will one day soon all be well served by FDP.”

Genetic Privacy and Latent Crime Scene DNA of Non-Suspects: How the Law Can Protect an Individual’s Right to Genetic Privacy While Respecting the Government’s Important Interest in Combating Crime, SSRN (2015)
“An individual has no right to privacy in genetic material they leave behind at a crime scene, even when that DNA naturally sloughs off. This absence of privacy occurs because courts consider latent crime scene DNA falls under the abandonment exception to the Fourth Amendment warrant requirement, or fail to utilize the Fourth Amendment when considering DNA collection, analysis and comparison. The Fourth Amendment requires a search or seizure to be reasonable and that it not violate an individual’s reasonable expectation of privacy: this requires that the individual exhibit a subjective expectation of privacy, and that society recognize that expectation as legitimate.

Law enforcement officials collect all DNA at crime scenes, and that DNA eventually winds up in state and federal DNA databases, such as NDIS. These databases are routinely searched by law enforcement to compare with other samples found at crime scenes or obtained from suspects. There is a right to privacy in genetic material. This right is reflected in judicial decisions, in legislation, and in public discourse. Searching a database or reanalyzing latent crime scene DNA of individuals neither connected to nor implicated in a crime constitutes a search because private individuals retain a high expectation of privacy in their DNA.

Since DNA can determine numerous things about an individual, including private medical information and information that could lead to potential discrimination such as diseases and ethnicity, since DNA is retained indefinitely in databases, and since those databases will continue to include genetic profiles of innocent individuals, courts should analyze the collection, analysis and retention of DNA found at crime scenes under the Fourth Amendment and require a warrant and particularized, reasonable suspicion. Similarly, legislators should protect an individual’s right to privacy in his or her inevitably shed DNA, even when it is found at a crime scene.”

Going Local: The Fragmentation of Genetic Surveillance, 95 B.U. L. Rev. 1491 (2015)
“The FBI’s two-decade-long dominance of the use of genetic surveillance for law enforcement purposes is ending. In its place, local police departments are creating DNA databases that operate outside of the FBI’s national DNA database network. These local databases, which until now have remained unexamined, promise local law enforcement agencies freedom from the federal laws and regulations that govern the FBI’s national network. This Article relies on original qualitative empirical research to describe why agencies created local databases and how these databases operate. It finds that while local DNA databases offer promise as a crime-solving tool, they generate harms that so far have been ignored. These harms include exacerbating racial inequities, threatening privacy and dignity interests, and undermining the legitimacy of the police. Because law enforcement agencies have not internalized these harms, the self-imposed regulations that currently restrain law enforcement’s use of local DNA databases are insufficient. This Article proposes several modest, yet effective, reforms that will minimize the harms generated by local DNA databases, while at the same time preserving law enforcement’s ability to wield this tool.”

Government Analysis of Shed DNA Is a Search Under the Fourth Amendment, 48 Tex. Tech. L. Rev. 287 (2015)
“This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA. Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection. First, the collection of the biological material which contains a person’s DNA might be considered a search under the amendment. Courts, however, have uniformly rejected this argument. For example, when police are interested in determining whether a suspect may be connected with an unsolved crime for which they collected a DNA sample from the crime scene, they will covertly obtain the suspect’s DNA from a fast-food wrapper or hair sample taken from a barber-shop floor. To date, judges have concluded that persons have discarded the DNA-laden cells obtained by police in these circumstances, and thus under Fourth Amendment law, retained no privacy interest in the item seized by police.

Second, the analysis of the DNA sample might trigger Fourth Amendment safeguards. This second issue – whether the Fourth Amendment is implicated when police surreptitiously analyze a citizen’s involuntarily shed DNA – is the topic of my [Tracey Maclin] paper. Most recently, two state high courts, Maryland and Massachusetts, have rejected Fourth Amendment claims that government analysis of DNA samples lawfully obtained from persons constitutes a search under the Fourth Amendment. The Supreme Court denied certiorari in the Maryland case – Raynor v. Maryland, 99 A. 3d. 753 (Md. 2014), cert. denied, 135 S. Ct. 1509 (2015). The result in Raynor conflicts with a ruling of the United States Court of Appeals for the Fourth Circuit, the federal circuit in which Maryland sits. In United States v. Davis, 690 F. 3d 226 (4th Cir. 2012), the Fourth Circuit ruled that the analysis of a suspect’s DNA sample from clothing lawfully obtained by the police was a search. The Fourth Circuit explained that “analysis required to obtain a DNA profile . . . generally qualifies as a search, because an individual retains a legitimate expectation of privacy in the information obtained from the testing.” However, the Court has requested the Commonwealth of Massachusetts to file a reply to the certiorari petition filed in the Massachusetts case – Commonwealth v. Arzola, 26 N.E. 3d 185 (Mass. 2015). In concluding that analysis of a DNA sample does not constitute a search, both the Maryland and Massachusetts high courts relied heavily on the Supreme Court’s 2013 ruling in Maryland v. King, which held that where police have probable cause to arrest for a serious offense, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Specifically, Part I of my article discusses whether analysis of abandoned DNA constitutes a search under the Fourth Amendment. Part II of the article considers a conflict in the Supreme Court’s cases when new technology or science gives law enforcement authorities enhanced capabilities to discover information arguably protected by the Fourth Amendment. In some cases, when deciding whether a search occurred, or the reasonableness of a challenged search, what a particular intrusion actually reveals matters little; what matters is the potential risk to privacy posed by new technology. In other cases, the fact that a particular intrusion has the potential to disclose highly personal data or massive amounts of information is constitutionally irrelevant. The only thing that matters is what was actually revealed by the intrusion. Finally, Part III of the article considers the implications of leaving the analysis of shed DNA unregulated by the Fourth Amendment.”

Government Retention and Use of Unlawfully Secured DNA Evidence, 48 Tex. Tech. L. Rev. 269 (2015)
“In Maryland v. King, the Supreme Court allowed police to extract a DNA sample from the cheek of a lawfully arrested individual without first securing a warrant, likening the sample to photos and fingerprints routinely taken during booking. Although King has already prompted a substantial body of critical commentary, to date an important outgrowth of the decision has eluded attention: What if, unlike in King, an individual is unlawfully arrested, without probable cause, yet police secure a DNA sample pursuant to a routine booking procedure? In his King dissent, Justice Scalia surmised that “[a]s an entirely predictable consequence of [the majority’s] decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” As it turns out, under current exclusionary rule doctrine, there is considerable truth to Justice Scalia’s assessment. In a line of cases stretching back several decades, courts have permitted police to retain and use for investigative purposes photos and fingerprints secured through unlawful arrests. Suppression is required when it can be shown that the purpose of the illegal arrest was to secure the prints, photos, or both — a finding often undercut when the evidence is acquired pursuant to a routine booking procedure. Against this backdrop, the King majority’s willingness to uncritically couple DNA samples with fingerprints and photos assumes added importance. This article, part of a symposium hosted by the Texas Tech School of Law, addresses whether the coupling obliges an equally uncritical application of exclusionary rule doctrine vis-a-vis unlawfully secured DNA. Answering in the negative, the article urges legislative action to limit the government’s ability to retain and use unlawfully secured DNA.”

Lay Understanding of Forensic Statistics: Evaluation of Random Match Probabilities, Likelihood Ratios, and Verbal Equivalents, 39(4) Law & Hum. Behav. 1 (2015)
“Forensic scientists have come under increasing pressure to quantify the strength of their evidence, but it is not clear which of several possible formats for presenting quantitative conclusions will be easiest for lay people, such as jurors, to understand. This experiment examined the way that people recruited from Amazon’s Mechanical Turk (n = 541) responded to 2 types of forensic evidence — a DNA comparison and a shoeprint comparison — when an expert explained the strength of this evidence 3 different ways: using random match probabilities (RMPs), likelihood ratios (LRs), or verbal equivalents of likelihood ratios (VEs). We found that verdicts were sensitive to the strength of DNA evidence regardless of how the expert explained it, but verdicts were sensitive to the strength of shoeprint evidence only when the expert used RMPs. The weight given to DNA evidence was consistent with the predictions of a Bayesian network model that incorporated the perceived risk of a false match from 3 causes (coincidence, a laboratory error, and a frame-up), but shoeprint evidence was undervalued relative to the same Bayesian model. Fallacious interpretations of the expert’s testimony (consistent with the source probability error and the defense attorney’s fallacy) were common and were associated with the weight given to the evidence and verdicts. The findings indicate that perceptions of forensic science evidence are shaped by prior beliefs and expectations as well as expert testimony and consequently that the best way to characterize and explain forensic evidence may vary across forensic disciplines.”

Microbial Forensics: The Biggest Thing Since DNA?, 51 Crim.L.Bull. 726 (2015)
“We live in a microbial cloud. Our bodies are home to between two and six pounds of microbial life-cells that do not share our DNA but replicate and live on our skin and hair, in our colons, between our toes, and in our mouths. Although some microbes are pathogenic, most are benign; and many are beneficial. For instance, the microbes in our colons are essential to proper digestion. We now realize that bacteria aid in the development of the immune system, fight off pathogens, and regulate our metabolism. Understandably, scientists are paying increasing attention to the human microbiome. The growing appreciation of human microbiome is already having a profound effect on the practice of medicine. By way of example, physicians are now using fecal transplants to “infect” a patient with healthy intestinal bacteria to treat microbe-related diseases. The new insights into the microbial cloud also have forensic implications. As this article explains, microbial analysis can potentially be employed in: –tracing infections to a source; –more broadly, making personal identifications; –improving estimates of post-mortem interval; –identifying types of body fluids; and –soil mapping. Some Spanish and American courts have already admitted expert testimony based on microbial forensic techniques. However, it is far too early to proclaim that the recognition of the importance of the human microbiome is the second coming of DNA. Yet, it is virtually inevitable that in the future litigators will encounter such testimony in court. The purpose of this article is two-fold. First, the article will help generally familiarize members of the American legal profession with the new field of microbial forensics. Secondly, we hope that that familiarity will stimulate a discussion of the question whether any of the foreseeable applications of microbial forensics have sufficient empirical validation to satisfy Daubert and produce admissible evidence.”

Myth of Arrestee DNA Expungement, 164 Univ. Penn. L. Rev. Online 51 (2015)
“Building on a trend that began with collecting DNA from convicted offenders, most states and the federal government now collect DNA from felony arrestees. The national DNA database now contains information on more than 2 million arrestees. While some of these arrests will result in guilty pleas or convictions, a substantial number will not. In fact, in many cases arrests lead to dismissed criminal charges or no charges at all. Should these arrestees forfeit their genetic information nevertheless? Every jurisdiction that collects arrestee DNA permits eligible arrestees to seek the expungement of their genetic profiles. While formal expungement is the law, it turns out that arrestee DNA expungement is largely a myth. In most states that collect arrestee DNA, the initial decision by the police to arrest that person turns out in most cases to lead to the permanent collection and retention of the arrestee’s genetic information, regardless of whether charges are dismissed or never brought at all. This essay is the first to provide preliminary data on actual arrestee DNA expungement, and argues for quick, efficient, and state-initiated expungement procedures.”

Negotiating Accuracy: DNA in the Age of Plea Bargaining, SSRN (2015)
“Hundreds of exonerations have made DNA a kind of poster child for the innocence movement and the demand for more accurate evidence in criminal cases. But most wrongful convictions are not simply the result of evidentiary mistakes. In the marketplace of plea bargaining, convictions are the result of numerous inputs — a defendant’s criminal record, prosecutorial bargaining habits, the size of the trial penalty, whether the defendant is out on bail — that have nothing to do with the accuracy of the evidence. The bargained nature of these convictions means that accurate evidence is just one piece — and not always the most important piece — of the larger negotiation process that establishes guilt. We might say that the plea process is structurally tolerant of inaccuracy, precisely because it transforms accuracy into a commodity that may be traded and negotiated away in exchange for agreement. This is a recipe for wrongful conviction. The innocence movement, for example, has uncovered numerous cases where innocent defendants pled guilty to homicide and rape in order to avoid the death penalty. The pressures to plead are likewise pervasive in the misdemeanor system, in which thousands of people are rushed through assembly-line processes and routinely plead guilty to minor crimes of which they are demonstrably innocent. Ultimately, we should recognize plea bargaining as a source of wrongful conviction in its own right, and add it to the canonical list of wrongful conviction sources such as mistaken eyewitness testimony, lying informants, and bad forensics.”

Neuroscience and Behavioral Genetics in U.S. Criminal Law: An Empirical Analysis, 2 J. Law Biosci. 485 (2015)
“The goal of this study was to examine the growing use of neurological and behavioral genetic evidence by criminal defendants in US criminal law. Judicial opinions issued between 2005–12 that discussed the use of neuroscience or behavioral genetics by criminal defendants were identified, coded and analysed. Criminal defendants are increasingly introducing such evidence to challenge defendants’ competency, the effectiveness of defense counsel at trial, and to mitigate punishment.”

Rule of Probabilities: A Practical Approach for Applying Bayes’ Rule to the Analysis of DNA Evidence, 67 Stan. L. Rev. 1447 (2015)
“Bayes’ rule is not being used to guide jury decision making in the vast majority of criminal cases introducing evidence of DNA testing. Instead of telling juries the “source probability,” the probability that the individual whose DNA matches was the source of the forensic evidence found at the crime scene, experts only present pieces of the puzzle. They provide the probability that a randomly selected innocent person would have a match or the expected number of innocent matches in the database. In some cases, the random match probability will be so low (one in a quadrillion) that the intuitive source probability is practically one hundred percent. But, in other cases, with large database trawls and random match probability at 1 in a million, jurors will have no ability to convert the random match probability or the likelihood ratio based on expected number of matches into relevant data that will help them address the question of guilt. This Article shows that a correct application of Bayes’ rule should lead fact-finders and litigants to focus on the size of two variables that influence the source probability: the probability that a non-source in the DNA database would have an alibi, and the probability that the source of the DNA is included in the database. This Article suggests practical means of estimating these two variables and argues that as a legal matter these parameters as well as the Bayesian posterior source probability are admissible in court. In particular, focusing on the prior probability that the “database is guilty,” i.e. the probability that someone in the database is the source of the forensic evidence, is not just analytically and empirically tractable, but avoids the evidentiary limitations concerning a particular defendant’s prior bad acts. Appropriate application of Bayes’ rule, far from preempting the fact-finding and adversarial process, can guide advocates to engage the important aspects of the evidence that are still likely to be open to contestation. Perhaps most important, appropriate application of Bayes’ rule will also allow jurors to reach verdicts via a coherent path that employs sound logic and reasoning.”

Should Arrestee DNA Databases Extend to Misdemeanors?, SSRN (2014)
“The collection of DNA samples from felony arrestees will likely be adopted by many more states after the Supreme Court’s 2013 decision in Maryland v. King. At the time of the decision, 28 states and the federal government already had arrestee DNA collection statutes in places. Nevada became the 29th state to collect DNA from arrestees in May 2013, and several others have bills under consideration. The federal government also encourages those states without arrestee DNA collection laws to enact them with the aid of federal grants. Should states collect DNA from misdemeanor arrestees as well? This article considers the as yet largely unrealized but nevertheless important potential expansion of arrestee DNA databases.”

Study of Criteria Influencing the Success Rate of DNA Swabs in Operational Conditions: A Contribution to an Evidence-Based Approach to Crime Scene Investigation and Triage, 20 For. Sci. Inter.: Genetics 130 (2016)
“DNA is nowadays swabbed routinely to investigate serious and volume crimes, but research remains scarce when it comes to determining the criteria that may impact the success rate of DNA swabs taken on different surfaces and situations. To investigate these criteria in fully operational conditions, DNA analysis results of 4772 swabs taken by the forensic unit of a police department in Western Switzerland over a 2.5-year period (2012–2014) in volume crime cases were considered.

A representative and random sample of 1236 swab analyses was extensively examined and codified, describing several criteria such as whether the swabbing was performed at the scene or in the lab, the zone of the scene where it was performed, the kind of object or surface that was swabbed, whether the target specimen was a touch surface or a biological fluid, and whether the swab targeted a single surface or combined different surfaces. The impact of each criterion and of their combination was assessed in regard to the success rate of DNA analysis, measured through the quality of the resulting profile, and whether the profile resulted in a hit in the national database or not.

Results show that some situations—such as swabs taken on door and window handles for instance—have a higher success rate than average swabs. Conversely, other situations lead to a marked decrease in the success rate, which should discourage further analyses of such swabs. Results also confirm that targeting a DNA swab on a single surface is preferable to swabbing different surfaces with the intent to aggregate cells deposited by the offender.

Such results assist in predicting the chance that the analysis of a swab taken in a given situation will lead to a positive result. The study could therefore inform an evidence-based approach to decision-making at the crime scene (what to swab or not) and at the triage step (what to analyse or not), contributing thus to save resource and increase the efficiency of forensic science efforts.”

Visualizing Trials with Large DNA Databases, SSRN (2015)
“This essay seeks to help the reader follow the analysis by Ayres and Nalebuff of the use of probability theory in assessing DNA evidence drawn from large databases. I [Nicholas L. Georgakopoulos] first guide the reader through visualizing a simpler paradox of probability theory: the rare disease test. I then offer a visual understanding of their paradigmatic setting: DNA evidence from a large database identifies an individual, but a deceased prime suspect also exists whose DNA is not available. A third unknown perpetrator whose DNA is not in the database is also a possibility. Consider the three possible scenarios. In the first scenario, the deceased prime suspect is the perpetrator, and the DNA test produces a false positive identification. In the second scenario the unknown perpetrator is guilty, and again the court observes a false positive. The third scenario has the perpetrator in the database, and the court observes a true positive. Effectively, the court needs to ascertain the probability of the third scenario, which turns out to be highly likely. This approach makes visible the possibility of a false positive after a false negative.”

NEWS ARTICLES

23andMe Transparency Report, beSpacific, Nov. 22, 2015

“Along with other companies that provide paid services to customers that comprise the collection and identification of sensitive PII specific to health and genealogy issues, such as Ancestry.com, there is increasing focus on how this information can impact individuals at work, for security reasons, and when attempting to qualify for various types of insurance. 23andMe states: The mission of this company is “To help people access, understand and benefit from the human genome.””

Advances in DNA Tech Pave Way for Convicts to Get New Tests on Evidence, Ars Technica, July 16, 2015
“The legal flap—brought by a Montana man convicted of sexually abusing a 14-year-old girl in 2006—concerns the Innocence Project Act of 2004 (PDF). The measure, hailed by the defense bar, gave criminals three years to seek DNA testing of evidence after their conviction. Under that law, the three-year statute of limitations may be extended if a convict can demonstrate that there is “newly discovered DNA” evidence. The 9th US Circuit Court of Appeals, ruling in favor of Bill Watson’s bid for renewed testing of the victims’ underwear and other evidence, said advancements in DNA testing amounted to newly discovered DNA. The court said it did not matter if it was the same DNA evidence taken from the crime scene or if the testing was sought seven years after the conviction.”

Brief History of Forensics, Wash. Post, Apr. 21, 2015
“The Washington Post colleague Spencer Hsu continues his great reporting on the continuing crisis in the world of forensic science. Over the weekend, Hsu broke the story that Justice Department officials now concede that “an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.” This is far from the first such story. It isn’t even the first such story from the FBI’s crime lab, long considered one of the most elite labs in the world. In fact, over the last several years there seems to be a new crime lab in crisis about once a month. A big part of the problem is misplaced incentives. A couple years ago I [Radley Balko] reported on a study which found that in many states, crime lab analysts are actually paid per conviction. And few years before that study came out, one of its authors — Roger Koppl of Fairleigh Dickinson University — and I wrote a piece about how we could institute some meaningful reforms to get those incentives pointing in the right direction. But Hsu’s story seems like a good opportunity to post a bit of a history of forensics that I wrote a few months ago. This was initially part of my four-part series on the use of bite mark evidence in the courts. We cut it because the series was already pretty long. But I think it provides some useful context for these alarming stories we’re seeing today.”

Building a Face, and a Case, on DNA, N.Y. Times, Feb. 24, 2015, at D1
“Investigators are increasingly able to determine the physical characteristics of crime suspects from the DNA they leave behind, providing what could become a powerful new tool for law enforcement. Already genetic sleuths can determine a suspect’s eye and hair color fairly accurately. It is also possible, or might soon be, to predict skin color, freckling, baldness, hair curliness, tooth shape and age. Computers may eventually be able to match faces generated from DNA to those in a database of mug shots. Even if it does not immediately find the culprit, the genetic witness, so to speak, can be useful, researchers say.”

Cert Petition: Is DNA Testing Blood on Seized Clothing a Fourth Amendment ‘Search’?, Wash. Post, Dec. 7, 2015
“Why is blood removal and testing a Fourth Amendment search? Here’s an overview from the petition: Extracting and subsequently testing DNA on a person’s clothing is a Fourth Amendment search for two different reasons. First, a person’s own clothing is part of his “effects” if not also part of his “person[]” that the text of the Fourth Amendment plainly protects. U.S. Const. Amend. IV. Physically invading a person’s item of clothing, and scraping away what it contains with an intent to obtain a DNA profile, is a trespassory physical intrusion into the person’s effects with the intent to obtain information that constitutes a Fourth Amendment search. See United States v. Jones, 132 S.Ct. 945, 949 (2012).
Second, extracting the DNA from blood and creating a DNA profile implicates the property owner’s reasonable expectation of privacy under Katz v. United States, 389 U.S. 347 (1967). The Court has already recognized that conducting chemical tests on blood samples is a Fourth Amendment search. See Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616–17 (1989) (“The ensuing chemical analysis of the [blood] sample to obtain physiological data is a further invasion of the tested employee’s privacy interests”). The Court has similarly held that chemical testing of urine samples is a Fourth Amendment search in light of its potential to “reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic.” Id. at 617. The same analysis applies to chemical testing of a seized blood sample to create a DNA profile and identify the sex of the person whose blood was found on the sample.”

Concern Grows Over DNA Evidence Errors in Texas, Click2Houston, Oct. 1, 2015
“Forensic labs are already backed up with tons of work and now prosecutors say they will have to go back and retest a lot of old cases. This afternoon the Texas Forensic Science Commission held a tense meeting discussing misinterpretations with DNA analysis. They said since the late 1999 scientists used a common formula to determine the likelihood that someone on trial would have the same genetic makeup as someone else and the FBI has flagged what it calls minor discrepancies.”

Cops Forced to Give DNA Samples Have No Case, Courthouse News, Aug. 31, 2015
“Three Phoenix police officers whose DNA was collected without their consent – but through a search warrant – do not have a Fourth Amendment claim, the Ninth Circuit ruled Monday.”

Cops Seek DNA Information from Ancestry.com and 23andMe, ABA J, Oct. 20, 2015
“Police searching for suspects are looking beyond criminal DNA databases for genetic information. In one case, police searched a publicly available database at Ancestry.com and wrongly identified New Orleans filmmaker Michael Usry as a suspect in a cold-case murder in Idaho based on a DNA sample provided by Usry’s father, Wired reports. The New Orleans Advocate had a story on the case last March.”

Dark Side of DNA Databases, The Atlantic, Oct. 8, 2015

“As news of these unexpected pairings swept the nation, lawyers in other cities pressed for similar searches. If there were 122 matches in a 65,000-person sized database, how many such matches might be found in the 11 million-person national database? But rather than embrace the inquiry, the FBI called the Arizona results “misleading” and “meaningless,” and suppressed the findings. FBI leaders reprimanded the Arizona lab, claiming that disclosing the results violated its agreement with the FBI. They further threatened to cut off access to the national database to any lab that independently conducted their own such studies. Why were the findings from the Arizona lab so explosive? The answer turns half on an understanding of math, and half on an understanding of law. And as is so often the case with forensic evidence, the gap between those two worlds proved critical.”

DNA by the Numbers, Forensic Mag., Oct. 20, 2015
“Nowadays increasing numbers of evidentiary traces are collected at crime scenes and submitted for DNA analysis at the forensic laboratories. However, almost 50% of the analyzed DNA samples do not result in valuable DNA typing information and a few studies show that the possibility to actually obtain usable DNA profiles can depend on the trace type. Evaluating the DNA results obtained for various sampled traces can provide us information on which traces are most promising to select for DNA analysis. Such information can guide crime scene investigators in decision-making.”

FBI Notifies Crime Labs of Errors Used in DNA Match Calculations Since 1999, Wash. Post, May 29, 2015
“The FBI has notified crime labs across the country that it has discovered errors in data used by forensic scientists in thousands of cases to calculate the chances that DNA found at a crime scene matches a particular person, several people familiar with the issue said. The bureau has said it believes the errors, which extend to 1999, are unlikely to result in dramatic changes that would affect cases. It has submitted the research findings to support that conclusion for publication in the July issue of the Journal of Forensic Sciences, the officials said. But crime labs and lawyers said they want to know more about the problem before conceding it would not make much difference in any given case.”

Forensic DNA Evidence Is Not Infallible, Nature, Oct. 28, 2015
“Research done by me [Cynthia M. Cale] and others at the University of Indianapolis in Indiana has highlighted how unreliable this kind of evidence can be. We have found that it is relatively straightforward for an innocent person’s DNA to be inadvertently transferred to surfaces that he or she has never come into contact with. This could place people at crime scenes that they had never visited or link them to weapons they had never handled.”

Future of Getting Arrested, The Atlantic, Jan./Feb. 2015
“An even more profound change involves the personal information that will be collected immediately following an arrest. Tablets equipped with facial-recognition software have already been rolled out in San Diego; meanwhile, the FBI has launched a giant database of biometric information that includes images of people’s faces, irises, fingerprints, and palms, as well as details about tattoos, scars, and other markings. Civil-liberties groups worry that as police make use of new identification tools during routine stops—and in the process collect new kinds of biometric data, including DNA and voice samples—the FBI’s database will swell with intimate information about people who are never convicted of any crime.”

Genomics—The Future of Forensic DNA Profiling, Huffington Post, Nov. 18, 2015
“Genomics is the scientific study of the molecular instructions encoded in your cells. It maps your entire genetic structure. Till now, forensic science has focused on only identifying your cell’s nuclei signature — your inner DNA (deoxyribonucleic acid) and, to a degree, your outer miDNA (mitochondrial DNA) — not your genes. The old method of forensically profiling your biological fingerprint by DNA analysis is being replaced by a computerized 3D genome recreation of your entire being.”

‘Great Pause’ Among Prosecutors as DNA Proves Fallible, NPR, Oct. 9, 2015
“Over the summer, the Texas Forensic Science Commission, which sets standards for physical evidence in state courts, came to an unsettling conclusion: There was something wrong with how state labs were analyzing DNA evidence. It seemed the labs were using an outdated protocol for calculating the probability of DNA matches in “mixtures”; that is, crime scene samples that contain genetic material from several people. It may have affected thousands of cases going back to 1999.At first, they assumed the update wouldn’t make a big difference — just a refinement of the numbers. But when a state lab reran the analysis of a DNA match from a murder case about to go to trial in Galveston, Texas, it discovered the numbers changed quite a bit. Under the old protocol, says defense lawyer Roberto Torres, DNA from the crime scene was matched to his client with a certainty of more than a million to one. That is, you’d have to go through more than a million people to find somebody else who’d match the sample. But when the lab did the analysis again with the new protocol, things looked very different.”

How DNA Evidence Incriminated an Impossible Suspect, New Republic, Oct. 26, 2015
“The ability to discern a DNA profile from a tiny amount of material is an indisputable benefit. No one wants a rapist to go undetected simply because he wore a condom, or a burglar to evade detection by wearing gloves. But with the ability to test the scantest of evidence comes a responsibility to recognize the limits on what inferences can be drawn from that evidence. It is one thing to arrive at a crime scene and test the smudges of blood on a windowpane broken by the robber; it is another to swab for any cell residue on a doorknob that was turned to get inside. The difference, of course, is that the bloody glass shard almost certainly came from the perpetrator, whereas any number of profiles might be obtained from a doorknob also touched by other people. That is because of a phenomenon about which little is known: DNA transfer.”

I’ve Just Seen a (DNA-Generated) Face, N.Y. Times, Feb. 23, 2015
“The faces here, which look a bit like video game avatars, are actually portraits drawn from DNA. Each rendering was created by plugging an individual genetic profile into a predictive tool created by Mark D. Shriver, a professor of anthropology and genetics at Penn State University. Dr. Shriver and his colleagues have studied the ways that genes influence facial development. Their software yields an image in a matter of minutes, rapidly drawing connections between genetic markers and points on the face. In less time than it takes to make a cup of coffee, a sketch emerges inferred solely from DNA.”

Judge Denies Access to Source Code for DNA Software Used in Criminal Cases, Wall St. J., Feb. 5, 2016
“A Pennsylvania judge has blocked an attempt by defense lawyers for a man charged with murder to obtain the source code of a computer program increasingly used by law enforcement authorities to untangle complex mixes of DNA found at crime scenes. Judge Jill E. Rangos said in a ruling filed late Thursday that defense lawyers for Michael Robinson, who is charged with shooting to death two men in Allegheny County, Pa., failed to show that “production of the source code is a linchpin to undermining the Commonwealth’s case” as it pertains to the DNA evidence.”

Judge Rejects Medical Examiner’s DNA Technique, N.Y.L.J., July 15, 2015, at 2
“A type of DNA testing done by the New York City’s Office of the Chief Medical Examiner for almost 10 years does not have enough acceptance in the relevant scientific community to make its findings admissible, a judge has decided. After about two and a half years of litigation, including live testimony from 11 scientists, Acting Brooklyn Supreme Court Justice Mark Dwyer decided not to admit so-called “lower copy number” or “high-sensitivity” analysis. Dwyer said that the New York Medical Examiner is the only public laboratory in the United States that employs the technique in criminal cases.”

Lawyer Accused of Conducting DNA Test on Water Bottle Without Permission Testifies in Ethics Hearing, ABA J, Jan. 13, 2016
“A North Carolina lawyer accused of taking a water bottle without permission to test for DNA testified in her ethics hearing on Tuesday. Christine Mumma, director of the North Carolina Center on Actual Innocence, said she took the water bottle by mistake, but decided to have it tested because it could be the key to exonerating her client, Joseph Sledge, the Raleigh News & Observer and WRAL report. Sledge was exonerated because of Mumma’s efforts, but the DNA test wasn’t the reason. He had spent almost 40 years in prison for a double murder. The DNA test did not find evidence to help Mumma’s client.”

Michigan Judge’s Landmark DNA Ruling Could Revolutionize CSI Work, MLive, Dec. 23, 2015
“A Michigan judge has made the nation’s first ruling on a new approach to analyzing DNA results that could revolutionize crime-scene investigation and court cases. Muskegon County 14th Circuit Chief Judge William C. Marietti issued a written opinion allowing expert testimony about a software program that claims to make sense of DNA samples previously deemed unusable. The program, known as STRmix, is based on “probabilistic genotyping” – a statistical method being used when DNA from two or more people is mixed in the same sample. Until now, the STRmix software has never been the subject of a court ruling in the United States, although similar software has in a few scattered cases. It’s not a laboratory technique – it doesn’t have to do with the lab work done on the sample itself – but a mathematical method of interpreting the data that labs produce. Supporters say it greatly strengthens the power of DNA analysis by making it possible to use data previously considered so weak it was rejected.” See also Lost Shoe Led to Landmark DNA Ruling – And Now, Nation’s 1st Guilty Verdict, MLive, Mar. 20, 2016.

New DNA Techniques Entitle Inmate to New Testing Despite Deadline, 9th Circuit Says, ABA J., July 15, 2015
“Old DNA samples that were too small for testing under old techniques can be examined using new tests, even though a three-year limit has passed, a federal appeals court has ruled. The samples are akin to “newly discovered evidence” because identification is now possible using the new tests, according to the opinion by the San Francisco-based 9th U.S. Circuit Court of Appeals. As a result, the statute of limitations governing DNA tests to establish innocence doesn’t apply. The Associated Press and Courthouse News Service covered the July 10 decision (PDF).”

Problem with Using Secret Computer Code to Put People in Jail, Fast Company, Nov. 2, 2015
“DNA evidence has been used in criminal trials for decades. But the trial was the first in New York State to include DNA evidence from a new kind of advanced software. TrueAllele Casework, as the software is called, uses algorithms to analyze DNA in very low-level samples or in complex mixtures that contain the DNA of many people. It then teases out a percentage probability that the samples are a match. Human-centered methods that U.S. crime labs had been using for years would more often report “inconclusive” results for the same DNA samples. The problem for Wakefield’s defense team—and for genetic privacy and transparency advocates—is that the proprietary software is a “black box.” They couldn’t question the program’s methods, like they could a human’s.”

Rapid DNA Devices Provide Results in Less Than Two Hours; How Are They Being Used?, ABA J, Feb. 26, 2016

“Some civil-liberties and immigration advocates are concerned, however. Civil-liberties advocates fear such tests could reveal health and other information, and could be used to construct a nationwide DNA index. Some immigration advocates say rapid DNA could reveal whether a child was conceived due to infidelity or rape, and could exclude families with children who are not biologically related.”

Reluctant Scoop: Changing Interpretations of DNA Mixtures Vex Legal System, Grits for Breakfast, Sept. 5, 2015
“DNA has often been referred to as the gold standard of forensic evidence. And when comparing a single sample to a suspect, that’s true. When DNA evidence includes mixtures of DNA from multiple sources, however, the scientific community is still figuring things out. And it takes years for new knowledge to pass down from the highest-end basic research to the work tables of practicing DNA analysts at front-line crime labs. The most recent such development: improvements in DNA science and interpretation techniques have caused practitioners to change how they calculate probabilities when it comes to singling out a defendant based on DNA mixtures (i.e., when biological evidence includes samples from more than one person). In the most extreme instance, the new method reduced a one in a billion probability that evidence matched a particular suspect to around one in 50, the Texas Forensic Science Commission’s Lynn Garcia told the Texas Criminal Justice Integrity Unit (TCJIU) on Wednesday. The issue was first publicly revealed in Texas and, to their credit, the courts and relevant agencies have been quick to confront the challenge, even if nobody quite knows yet what to do.”

Retention of DNA Profiles and Fingerprints — Europe and the U.S., Collateral Consequences Res. Ctr., Feb. 4, 2015
“Comparing the European Court of Human Rights’ (ECtHR) 2008 decision in S. and Marper v. the United Kingdom with the U.S. Supreme Court’s 2013 decision in Maryland v. King provides a window on the very different legal status of criminal records in the Europe and U.S. S. and Marper also illuminates the growing chasm between the U.K. and continental Europe when it comes to informational privacy and police records. As illustrated in prior posts, many criminal justice practices that are common in the U.S. are regarded as a serious invasion of privacy in Europe, and therefore a human rights violation. As evidenced by the caselaw discussed below, this includes the blanket and indefinite retention of DNA and fingerprint information.”

Ruling Addresses Limits on Forensic Expert Testimony, N.Y.L.J., Jan. 27, 2016, at 1
“Not every technician who analyzes DNA samples and other forensic evidence must be cross examined at the trials of suspects who are implicated by the technician’s analyzed evidence, a judge ruled. Bronx Supreme Court Justice April Newbauer denied a motion by defense lawyers arguing that “five or six” technicians for the Office of the Chief Medical Examiner (OCME) who handled the DNA sample linking their client to a 2010 rape should testify so he could exercise his Sixth Amendment right to confront them. Newbauer ruled in People v. M.F., 3760-2013, that it would be sufficient to call the technician who positively linked “M.F.” to the DNA sample from a vaginal swab taken from the rape victim to testify about OCME testing procedures and its handling of DNA materials.”

Scientists Seek Ban on Method of Editing the Human Genome, N.Y. Times, Mar. 20, 2015, at A1
“A group of leading biologists on Thursday called for a worldwide moratorium on use of a new genome-editing technique that would alter human DNA in a way that can be inherited. The biologists fear that the new technique is so effective and easy to use that some physicians may push ahead before its safety can be assessed. They also want the public to understand the ethical issues surrounding the technique, which could be used to cure genetic diseases, but also to enhance qualities like beauty or intelligence. The latter is a path that many ethicists believe should never be taken.” See also Scientists Seek Moratorium on Edits to Human Genome That Could Be Inherited, N.Y. Times, Dec. 4, 2015 at A1

Scientists Sue State Police Over ‘Pro-Prosecution’ DNA Lab, Phys.org, Feb. 19, 2016
“Three scientists who worked at the New York State Police crime lab have sued the agency, alleging administrators retaliated against them for finding flaws in processing DNA evidence and pushing for new testing that would identify past errors.”

Secondary Transfer a New Phenomenon in Touch DNA, Forensic Mag., Nov. 9, 2015
“Touch DNA can be transferred by a handshake from one person to another, then to an object like a knife or a gun. But new research has found that Touch DNA analysis can erroneously implicate a person who never even laid eyes on the weapon as the main contributor of the DNA on its handle. The startling finding, reached by University of Indianapolis scientists, means that the invisible traces we may be leaving everywhere we go – scientists don’t yet understand the minute mechanics at work – could be affecting current and future cases. But how far back the traces could affect past verdicts, and sentences, has yet to be determined. The results won’t cause a wholesale reevaluation of criminal convictions, contends Cynthia M. Cale, the lead author of the study forthcoming in the January issue of the Journal of Forensic Science.”

Stay, Immediate Appeal Sought for Attorneys Seeking Access to DNA Analysis Software, Pittsburgh Post-Gazette, Jan. 5, 2016
“Attorneys for a double-homicide defendant Tuesday asked an Allegheny County judge to stay the case and allow them immediately to appeal her order denying them access to prosecution information they believe is vital to their defense. Last month, Common Pleas Judge Jill E. Rangos told attorneys for Michael Robinson they could not have access to the computer “source code” — 170,000 lines of computer instructions — that drives a DNA analysis software tool called TrueAllele.”

Surprisingly Imperfect Science of DNA Testing, Marshall Project, June 24, 2015
“Because DNA is more reliable than other forensics, scientists have shrugged off suggestions that it could fall victim to the vagaries of bias. But Dror [Itiel Dror of University College London] noted that much DNA analysis involves interpretation. With interpretation comes subjectivity, and with subjectivity can come error.” See also Itiel E. Dror and Greg Hampikian, Subjectivity and Bias in Forensic DNA Mixture Interpretation, 51 Sci. and Just. 204 (2011).

Synthetic DNA Could Help Foil Problem of Fake Art, Experts Say, ABA J, Oct. 13, 2015
“A new system is being developed that could help curtail high-priced sales of art forgeries, experts say. Along with the real artist’s signature, a unique pattern of synthetic DNA would be embedded in the artwork when it is created, the New York Times explains. The bioengineered “tag” could also help reduce traffic in stolen art, since pieces could be checked for DNA signatures before they are sold. Under development by the Global Center for Innovation at the State University of New York at Albany, the fledgling system is being helped along by $2 million in ARIS Title Insurance Corporation funds. (The title company focuses on artworks.) Once available, each DNA signature tag is expected to cost around $150.”

Your DNA Can Show Up at Crime Scenes You Were Never at, Study Finds, Yahoo News (CA), Nov. 19, 2015
“Forensic DNA evidence is an invaluable tool for determining guilt and innocence in criminal investigations. Technology has reached a point where sub-microscopic samples – so-called “touch DNA” – can determine, well within a reasonable doubt, who handled what at the scene of a crime. But newer, even sharper technology may be about to call that into doubt. It is now becoming possible to detect other samples – “transfer DNA” – from people who were never at the crime scene. “Touch DNA usually refers to DNA that’s deposited by the skin onto an object if you touch it,” says Dr. Krista Latham, associate professor of biology and anthropology and the University of Indianapolis. “However, our study is suggesting that term might be misleading, because what we found is that DNA can be transferred to an object that a person did not have direct contact with.” In other words, your DNA can actually be found on objects you’ve never seen – and never, ever touched.”

Your DNA Is Everywhere. Can the Police Analyze It?, Ars Technica, Feb. 20, 2015
“Anybody who has watched a crime drama knows the trick. The cops need someone’s DNA, but they don’t have a warrant, so they invite the suspect to the station house, knowing some of the perp’s genetic material will likely be left behind. Bingo, crime solved. Next case. A human sheds as much as 100 pounds of DNA-containing material in a lifetime and about 30,000 skin cells an hour. But who owns that DNA is the latest modern-day privacy issue before the US Supreme Court. At its core, the issue focuses on whether we must live in a hermetically sealed bubble to avoid potentially having our genetic traits catalogued and analyzed by the government.”

AMERICAN LAW REPORTS

Patentability of Diagnostic Methods Concerning Human Genes, Cells, Blood, and DNA, 90 A.L.R. Fed. 2d 235 (2014)
“The Patent Act, enacted in 1790, defines the subject matter of a patent as “any useful art, manufacture, engine, machine, or device, or any improvement thereon not before known or used.” It granted the applicant the “sole and exclusive right and liberty of making, constructing, using and vending to others to be used” of his or her invention. Over time, there have been numerous modifications, amendments, and reforms to the patent law reflecting the advancement of science and inventions. One such category of inventions, which has helped evolve patent law, is biotechnology inventions related to human genes, cells, blood, or DNA. For example, in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289, 182 L. Ed. 2d 321, 101 U.S.P.Q.2d 1961, 90 A.L.R. Fed. 2d 685 (2012), a patent infringement case between a diagnostic laboratory and a laboratory services company, the Court held that the patents which claimed the relationships between concentrations of certain metabolites in the blood and the likelihood that a thiopurine drug dosage will prove ineffective or cause harm were not patentable under patent law as they effectively claimed the underlying laws of nature themselves, a product which was invalid subject matter under 35 U.S.C.A. S 101. This annotation collects and analyzes cases construing and applying patent law (35 U.S.C.A. SS 1 to 376) as it relates to diagnostic methods concerning human genes, cells, blood, or DNA.”

Sufficiency of Search Warrant for DNA Sample, 93 A.L.R.6th 275 (2014)
“An individual has a privacy interest in his or her bodily fluids, and an order allowing the government to procure evidence from a person’s body constitutes a search and seizure under the Fourth Amendment of the United States Constitution. Thus, a governmental taking of samples of bodily substances, such as blood, constitutes a search and seizure subject to the Fourth Amendment’s reasonableness requirement. The courts in a number of cases have addressed the sufficiency of a search warrant for a DNA sample. In State v. Jenkins, 398 S.C. 215, 727 S.E.2d 761, 93 A.L.R.6th 667 (Ct. App. 2012), for example, the court held that an affidavit in support of a search warrant for DNA of a defendant did not demonstrate that the police had probable cause to believe that the defendant raped the victim, where the affidavit did not show why the police believed that the defendant committed the crime, where the affidavit contained no indication as to where the detective obtained information in the affidavit, and where the affidavit did not contain even a conclusory assertion that the information or its source was reliable. This annotation collects and discusses all of the cases that have addressed the sufficiency of a search warrant for a DNA sample.”

Validity, Construction, and Application of State Statutes and Rules Governing Requests for Postconviction DNA Testing, 72 A.L.R.6th 227 (2012)
“DNA testing can exonerate the wrongly convicted and identify the guilty and thus has the ability to significantly improve the criminal justice system. Recognizing this, 48 states have enacted statutes allowing for postconviction DNA testing. Balancing the competing interests of unleashing the potential for producing exonerating results with the need to respect the finality of court judgments, legislatures have devised different approaches with limitations as to when and under what circumstances a defendant may obtain DNA testing. In Com. v. Wright, 14 A.3d 798, 72 A.L.R.6th 673 (Pa. 2011), the Supreme Court of Pennsylvania held that a defendant’s voluntary confession to a crime did not preclude his establishing a prima facie case under Pennsylvania’s Post Conviction DNA Testing Act, 42 Pa. Cons. Stat. Ann. SS 9541 to 9546. This annotation explores these various approaches by collecting and discussing the state and federal cases that have addressed the validity, application, and construction of state statutes and rules governing requests for postconviction DNA testing.”

RESOURCES

DNA Evidence (N.Y. Times)
“News about DNA Evidence, including commentary and archival articles published in The New York Times.”

DNA Newsletter (N.Y.C. Legal Aid Society)

This is a weekly round-up of news stories concerning DNA and forensics nationwide.

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1 See generally Laura A. Hug et al., A New View of the Tree of Life, Nature Microbiology, No. 16048 (2016).

2 See Nick Zagorski, Profile of Alec J. Jeffreys, 103 Proc. Nat’l Acad. Sci. U.S.A. 8918 (2006). See generally Double Helix: Fifty Years of DNA, Nature (2003).

3 See Ken Strutin, DNA Without Warrant: Decoding Privacy, Probable Cause and Personhood, 18 Rich. J.L. & Pub. Int. 319 (2015); Ken Strutin, Databases, E-Discovery, and Criminal Law, 15 Rich. J.L. & Tech. 6 (2009). See also Ken Strutin, DNA and the Double Helix of Constitutional Rights, N.Y.L.J., July 22, 2014, at 5; Ken Strutin, DNA, Privacy and Personhood: The Crime of Being Alive, N.Y.L.J., July 23, 2013, at 5; Ken Strutin, DNA Sampling: A Challenge to Privacy and Dignity, N.Y.L.J., May 22, 2012, at 5; Ken Strutin, Third Party Culpability DNA Evidence, N.Y.L.J., Oct. 4, 2005, at 4.

4 See generally Ken Strutin, Unwarranted DNA Sampling: The Legacy of Maryland v. King, LLRX, May 11, 2014; Ken Strutin, DNA Evidence: Brave New World, Same Old Problems, LLRX, Oct. 14, 2013; Ken Strutin, DNA Identification Evidence in Criminal Prosecutions, LLRX, Mar. 7, 2010; Ken Strutin, DNA Post-Conviction Resources, LLRX, Sept. 14, 2008.

5 See, e.g., Alexandra Natapoff, Negotiating Accuracy: DNA in the Age of Plea Bargaining in Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent (CUP 2015).

6 See, e.g., Robin Bradley Kar and John Lindo, Race and the Law in the Genomic Age: A Problem for Equal Treatment Under the Law, SSRN (2015).

7 See, e.g., Notification re: FBI Allele Frequency Corrections and DNA Mixture Interpretation Issues in Texas (Tex. For. Sci. Comm’n 2015); Tracey Maclin, Government Analysis of Shed DNA Is a Search Under the Fourth Amendment, 48 Tex. Tech. L. Rev. 287 (2015).

8 See, e.g., Joe Palazzolo, Judge Denies Access to Source Code for DNA Software Used in Criminal Cases, Wall St. J., Feb. 5, 2016; Jonathan D. Silver, Stay, Immediate Appeal Sought for Attorneys Seeking Access to DNA Analysis Software, Pittsburgh Post-Gazette, Jan. 5, 2016. See generally Ken Strutin, Databases, E-Discovery and Criminal Law, 15 Rich. J.L. & Tech. 6 (2009); Ken Strutin, An Examination of Source Code Evidence, N.Y.L.J., Nov. 13, 2007, at 5.

9 See Adrienne N Kitchen, Genetic Privacy and Latent Crime Scene DNA of Non-Suspects: How the Law Can Protect an Individual’s Right to Genetic Privacy While Respecting the Government’s Important Interest in Combating Crime, SSRN (2015); Jason Kreag, Going Local: The Fragmentation of Genetic Surveillance, 95 B.U. L. Rev. 1491 (2015); Joseph Goldstein, Police Agencies Are Assembling Records of DNA, N.Y. Times, June 13, 2013, at A1.

10 See, e.g., Jorge R. Roig, Can DNA Be Speech?, SSRN (2014).

11 See Charles E. MacLean and Adam Lamparello, Forensic DNA Phenotyping in Criminal Investigations and Criminal Courts: Assessing and Mitigating the Dilemmas Inherent in the Science, SSRN (2015); Andrew Pollack, Building a Face, and a Case, on DNA, N.Y. Times, Feb. 24, 2015, at D1; Garry Rodgers, Genomics—The Future of Forensic DNA Profiling, Huffington Post, Nov. 18, 2015. See generally Ken Strutin, 3D Printing: The Manufactory of Knowledge, LLRX, Mar. 29, 2014.

Posted in: Criminal Law, Discovery, Legal Research
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