Exploring Social Security Cases and Outcomes

DNA Collection and the Presumption of Innocence: What Is the Problem?

by Marie Caldwell

There's been a new step to the arrest and booking process that's quietly been spreading throughout the United States over the last few years. Now, depending on the jurisdiction and the crime you're suspected of doing, you can add a cheek swab for DNA testing to the more familiar photo ID and fingerprints. What is the DNA testing for? The answer may depend on who you ask, but there are some things that you definitely want to know.

Automatic collection on arrest is the rule in more than half of the states in the country.

At least 28 states take DNA samples from people who are arrested, some for any felony at all and others only if the arrestee is charged with certain specific crimes. However, when that DNA collection is taken a big issue that concerns many civil rights activists and criminal defense attorneys alike.

In states like Iowa, the collection of a DNA sample is only done after a person is convicted and they lose the right to the presumption of innocence. In other states, like Rhode Island, the DNA sample is collected as soon as the suspect is arrested—before a decision is even made if there's enough evidence to make it past an arraignment hearing. This is a change from the old law, which allowed DNA collection only after conviction of a felony, similar to Iowa.

Detractors point out that taking a biological sample that can reveal everything from a person's medical history to familial relationships is highly invasive and becomes more so with each new discovery about what genetic material can reveal. Taking that sample when a person is merely accused of a felony—and might never go to trial based on a lack of evidence, a failure to provide probable cause for the arrest, or a number of other reasons—amounts to a warrantless search and a violation of civil rights.

Genetic material is captured in state and national databases for future use.

Once the DNA material is collected, the procedure from there varies with state law as well. In Rhode Island, for example, the material isn't supposed to be submitted to the state's DNA database or the national system, known as CODIS, until after the case survives the arraignment.  

Once in the state and national databases, the databases will attempt to match your DNA up with any on file from old, unsolved crimes. It is also held for the future, in case you are re-arrested or commit another crime. Keep in mind, however, that it has the potential of not only identifying you—but alerting police if someone closely related to you might be guilty of a crime. For example, if your genetic information goes into CODIS today, twenty years from now the similarity to your genetic material could be used by police to track down one of your children if his or her DNA is left at the scene of a crime. Both civil rights activists and defense attorneys see this as a further erosion of the presumption of innocence, which has long been a standard right in the legal system. 

You are likely the only person interesting in getting the material expunged.

While all states (as of 2012) that participate in DNA collection have a policy regarding expungement in cases where someone's DNA is entered into the system and then they are found not guilty or the charges are later dropped, the odds aren't good that the DNA is actually being removed.

Most states, like Rhode Island, simply say that a regulation needs to be established for periodic review of the database to look for DNA profiles that shouldn't be in there, but there's no plan for enforcement of that policy on the books yet. Successfully achieving a search like that would seem improbable, given how vast the databases are growing.

If you want your DNA scrubbed from the databases it is being kept in after your acquittal or after charges are dropped (or even reduced to a misdemeanor, which would no longer qualify it as an offense that justified DNA collection), you will likely bear the responsibility to see that it is done. In Rhode Island, for example, that means making sure that you put the request in writing and send it to the correct places, along with any applicable proof that you need to submit. 

Consider hiring an attorney as early as possible to help keep track of your DNA material.

Given the complexities of the legal system regarding DNA collection and expungement and the potential for abuse of the information gleaned from those genetic samples, it pays to involve a criminal defense attorney in your case as soon as possible. That way, he or she can look after both your current and future interests by blocking any unethical or illegal DNA collection and/or helping you get a sample expunged from the system later if necessary.

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