Legislative Memo: Provides that People Arrested in Connection with a Felony Must Submit a DNA Sample

This legislation would compel persons arrested for certain felony offenses to submit a DNA sample for inclusion in the state’s databank. The bill represents a significant departure from longstanding constitutional standards regarding criminal investigation and prosecution.

In advancing this proposal, the legislature would establish new rules regarding issues the courts have only begun to grapple with; court rulings that have addressed these issues have done little to settle the matters in dispute. This jurisprudence raises important questions regarding constitutional protections of privacy and due process afforded persons who are charged with – but not convicted of – a criminal offense.

And the questions raised by this bill, and by the courts, are not hypothetical: the authority to compel DNA from arrestees has significant, unexamined practical implications. To police officers’ authority to arrest, for example, would attach the authority to obtain DNA from suspects.

Would this expanded police power lead to pre-textual arrests – undertaken primarily (or solely) in the interest of entering a DNA sample in the state’s databank?

How would the authority to take DNA from arrestees affect the implementation of the new “familial searching” policy recently approved by the state’s Commission on Forensic Sciences? This policy would authorize law enforcement to investigate the family members of an individual whose DNA is currently in the databank (due to a past offense) if the individual’s DNA is a near match with crime-scene evidence – on the theory that the DNA of that individual’s blood relative may be a precise match with the crime-scene DNA. Under the proposed legislation, the mere arrest of an individual could make his or her family members the targets of a criminal investigation.

Law makers must also consider that the authority to take DNA from arrestees could compromise criminal investigations. A recent study published by the British Journal of Criminology has identified inefficiencies in the use of forensic DNA due to tactical errors and insufficiently trained police officers, among other factors.

The study describes “tunnel vision” in criminal investigations caused by premature reliance on DNA results in criminal investigations – a phenomenon recognized as a cause of wrongful convictions.

This legislation also raises a larger, systemic concern regarding capacity of the state’s oversight system to ensure the integrity of the procedures by which forensic DNA is utilized. The New York State Commission of Investigation has identified a number of these issues: an increasing risk of tainted or cross-contaminated samples due to the enhanced sensitivity of testing techniques; concerns expressed by lab managers that there are insufficient funds to hire and train qualified forensic analysts; and the lack of statewide standards for the collection and handling of DNA evidence.

Bruce Budowle, a national expert in forensic DNA and the architect of the national DNA database, has stated legislators do not have sufficient data on which to determine the actual value of DNA databanks in solving crimes. According to Budowle, policy makers fail to use reliable metrics for evaluating the costs of the DNA databank – both in terms of tax dollars allocated and the diminution of constitutional rights – in relation to the public safety benefits.

The proposal to compel DNA from persons charged with certain felony offenses raises a host of complex questions – unanswered questions regarding both constitutional principle and law enforcement practice. In light of these unknowns, the NYCLU strongly urges the legislature to reject S.6213-B/A.9425-A.