Deoxyribonucleic acid (“DNA”) testing, also commonly known as genetic testing, is a type of test that is often used in criminal and civil court matters to identify changes in the genes, chromosomes, or proteins in an individual’s body. DNA testing specifically involves collecting DNA from a sample of cells in an individual’s body to identify specific genes, chromosomes, or proteins, including genes that are faulty.
Importantly, although 99.9% of human DNA sequences are the same in every person in the world, there are still enough differences in the DNA to allow every single person to be distinguishable from another.
By utilizing the scientific method of DNA testing and DNA profiling, scientists are able to analyze a long chain of DNA to identify specific “loci.” Even though loci are very similar when comparing the loci of two closely related people, among people who are completely unrelated, the differences between the loci are much greater. As such, comparing and analyzing an individual’s loci allows examiners to identify specific traits.
As mentioned above, DNA testing is utilized in both civil and criminal proceedings. In criminal proceedings, DNA evidence is often used to link a person to the scene of the crime and even to support the charge that they committed the crime. However, DNA evidence can also be used by the defendant in order to prove their innocence.
In addition to criminal proceedings, where DNA testing is utilized to identify a suspect to a criminal act, DNA testing is also widely utilized in civil proceedings. Specifically, DNA testing is often needed in connection with proving or disproving paternity. In a family law case that concerns paternity, DNA profiling allows for the direct examination of a child’s genetic material. Then the child’s genetic characteristics are then compared to their mother.
Then, the characteristics that are compared that are not found in the mother are determined to have been inherited from the father. Next, the suspected father’s DNA is collected and tested.
If the suspected father possesses the characteristics inherited by the child, then the probability that he is the biological father will be calculated and presented as evidence to the court. Importantly, DNA tests can currently determine paternity with 99.9% accuracy and can rule out paternity with 100% accuracy.
In some cases, mandatory DNA sampling will be ordered by a Court in order to determine paternity in a family law case. If there is a court order, then an individual must submit DNA samples in accordance to the order. Then, the results of the DNA testing will be substantial evidence in determining paternity.
Once a DNA test has been performed on an individual and a DNA sample has been collected, the DNA sample will often be entered into both a local and federal database. Importantly, every state and the Federal Bureau of Investigation (“FBI”) maintain DNA databases. Additionally, all states permit the collection of a DNA sample from a person who is convicted of a crime for inclusion in DNA databases.
In fact, many states require defendants convicted of any felony to provide a DNA sample to the state. However, some states only allow DNA collection from defendants who were convicted of certain violent crimes, such as murder, rape, or other sexual crimes.
Many states also allow state law enforcement agencies to collect a DNA sample from any individual who has been arrested or charged with a crime. Once again, the goal behind collecting DNA samples is to build the state’s DNA database for purposes of being able to identify individuals through a DNA sample.
The national DNA database which catalogs DNA is known as the National DNA Index System (“NDIS”). The NDIS contains DNA profiles that are submitted by participating federal, state, and local forensic laboratories. There is also the Combined DNA Index System (“CODIS”), which is a program maintained by the FBI to analyze DNA data.
How Are DNA Samples Stored?
As far as the storage and cataloging of DNA samples, DNA samples that are stored in databases are generally operated by either:
- Private testing laboratories;
- Government agencies which are tied to law enforcement, such as the Department of Justice (“DOJ”) and
- Department of Public Safety (“DPS”); or
- Government agencies that are not tied to law enforcement, such as the Department of Health (“DOH”).
It is important to note that when it comes to the rules and regulations involving database cataloging, any laboratories that submit DNA data to NDIS must be accredited and submit to audits to show their compliance with FBI standards. Further, private laboratories do not qualify to submit DNA data to NDIS, because they lack these assurances of the quality of their work.
All in all, the rules and regulations involving DNA testing and cataloging were created as a result of DNA testing being shown to be an invaluable tool in both criminal investigation and prosecution. However, DNA evidence may still be challenged due to factors such as the DNA sample quality, contamination, and human interpretation.
Further, collecting an individual’s DNA involves capturing a piece of an individual. As such, DNA testing often conflicts with a person’s right of privacy under the Constitution. In addition to a person’s right to privacy, there may also be other constitutional rights that impact the collection and cataloging of an individual’s DNA.
Is This Practice Constitutional?
As mentioned above, the simple act of collecting a DNA sample often involves piercing an individual’s body and capturing a part of their person. As such, attorneys and civil rights groups often question the constitutionality of DNA testing and DNA databases. In addition to federal constitutional protections, most state constitutions also protect the privacy of its citizens.
One of the main challenges to the practice of collecting and cataloging DNA is that it is a direct violation of a person’s Fourth Amendment rights. Under the Fourth Amendment, individuals are protected from unreasonable searches and seizures. For example, if police target certain groups of persons or detain a person for purposes of collecting a DNA sample, then that may be an unreasonable search and seizure. This is especially true if the person is detained without reasonable suspicion of criminal activity.
It is important to note that all criminal laws are based on the fundamental principle that all individuals are innocent until proven guilty. The Constitution further protects this idea, as it gives an individual certain constitutional rights to protect themselves from government intrusion. For instance, the Constitution provides individuals the right to remain silent and the right to a trial by a jury when they are suspected or being charged with a crime.
However, the founding fathers could have never imagined science progressing to a point in time where an individual’s characteristics could be identified with DNA collection. As such, the Constitution obviously does not discuss the constitutionality of DNA collection. This often results in a person in the DNA database being hauled in for questioning when their DNA is merely similar to a DNA sample being found at a crime scene.
What Are the Risks of Collecting and Storing People’s DNA in a Database?
Outside of possible constitutional violations that result from collecting and storing people’s DNA in a database, there are also reliability risks associated with collecting DNA samples. In fact, there are many complications that may arise that could affect the reliability of a DNA sample.
For example, the manner in which law enforcement collects, handles, and tests a DNA sample affects its reliability. In other words, human error can occasionally affect DNA results, which are then stored in a DNA database.
Importantly, a DNA sample is only as reliable as the procedures that are utilized to preserve and test it. As such, if the procedures are not careful and precise, or if the procedure prioritizes results over accuracy, then the DNA sample collected may not be trustworthy and perhaps should not be relied on to convict a defendant of a crime.
For example, if an individual has been charged with assault, and a DNA sample is collected at the scene or on the victim, that sample could be damaged by exposure to heat, cold, or other features of the environment in which it is kept. There can also be a question as to the person whose sample it is. In other words, does the sample belong to the person being deemed a suspect, or did it simply belong to someone that was in the area.
Should I Contact a Lawyer?
As can be seen, DNA testing and cataloging can often become a very complicated matter, and the use of a DNA sample can significantly impact an individual’s court case. As such, before submitting to a DNA test, it may be in your best interests to consult with an experienced criminal defense attorney.
If you have been charged with a crime, and you wish to submit to or otherwise utilize DNA testing as a defense in your case, an attorney will be paramount in helping you get the test done and building a defense to the charges you are facing. An experienced attorney will also be able help you understand your legal options and your best course of legal action.
Additionally, an attorney can also help you challenge DNA test results, if you believe that you were misidentified as a result of a DNA database. Finally, an attorney can also represent you at any in person criminal or civil proceedings where DNA testing is being utilized as evidence in your case.
