The Argument Against DNA Tests for Felony Suspects

Posted July 14, 2010 in Criminal Law by Arthur Buono

The American Civil Liberties Union argued against a California law requiring police to take a DNA sample from anyone arrested for a felony. The case involves an anti-war demonstrator whom police arrested for trying to free another demonstrator from custody. She claims they threatened to charge her with a greater offense if she refused to give a sample.

 
  • DNA collected by swabbing a person’s mouth
  • Police keep samples even if no charge filed
  • Individual’s privacy vs. crime-solving

 

DNA Samples Effective in Solving Cases

The case presents a trade-off between security and privacy. Prosecutors and police see DNA testing as a tool to help identify criminals and solve crimes. Civil rights advocates criticize the invasion of the privacy of someone merely suspected of a crime. They point out that under the law, California’s Proposition 69, the police still keep the DNA evidence on file even if they never charge the suspect. The person must wait three years to request expungement of the data. A judge or prosecutor can deny the request.

Why would police keep DNA evidence from someone not charged with a crime? The prosecutor in this case said a person whose DNA they’ve taken would be less likely to commit a crime in the future. He also pointed to the breakthrough in the "Grim Sleeper" serial murder case. It came when the accused’s son was arrested and his DNA sample linked the accused to DNA evidence found at crime scenes.

Police collection of DNA raises privacy concerns and brings the Constitution into play. Search and seizure law requires probable cause to take a person’s DNA sample. Just how invasive or intrusive the seizure of DNA is can decide whether police can collect it from a person they arrest. The ACLU lawyer in this case called a cheek swab very intrusive. He joked that when he meets people he shakes hands, but doesn’t let them put things in his mouth.

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