Comments Regarding Familial DNA Searching
Comments of the New York Civil Liberties Union regarding a proposal of the DNA Subcommittee of the Commission on Forensic Sciences to authorize “Familial DNA Searching,” pursuant to regulation
January 18, 2017
Revised: February 9, 2017
Existing state law, rules and regulations authorize the use of forensic DNA profiles archived in the state’s databank in the investigation of a crime. Pursuant to these procedures, DNA evidence found at a crime scene is compared with DNA profiles of former offenders held in the databank. A match between crime-scene DNA and a DNA profile held in the databank – referred to as a “cold hit” – may implicate that individual in the crime. The Department of Criminal Justice Services (DCJS) will then release to prosecutors the identity of that individual as a possible criminal suspect.
On December 11, 2009, the New York State Commission on Forensic Sciences approved (by a sharply divided vote) a policy that authorizes law enforcement to investigate persons believed to be blood relatives of an individual whose DNA does not precisely match crime-scene evidence.1 The proposed “partial match policy” authorizes DCJS to provide prosecutors with the identity of that former offender whose DNA profile is not a match with crime-scene DNA evidence – but is a near, or partial, match.2
The scientific rationale is this: the crime scene DNA may exclude as suspect former offenders whose DNA is an inexact match with crime scene evidence; but that crime scene DNA may be an exact match with the DNA of a blood relative of the former offender. The subsequent investigation focuses on determining whether these family members may be the source of an exact match with the crime scene sample discovered at the beginning of this DNA trail.3
The Commission on Forensic Science has recently announced that a subcommittee of the Commission has proposed the adoption of a policy authorizing the use of “familial DNA searching.” There is inconsistency in the scientific literature regarding the definition of partial-match DNA analysis and familial DNA searching. However, when authorized by law, these techniques permit the state to release the identity of a person whose DNA is in the state’s databank based upon a less than precise match with a DNA sample found at a crime scene.
Under existing New York State regulations, the DCJS may release the identity of an individual whose DNA profile is stored in the state’s databank when, using existing DNA analytic protocols, there is a partial match between that individual’s DNA and biological evidence at a crime scene. When there is no match between the evidence and a reference sample in the databank, law enforcement may seek to employ familial DNA searching techniques. This technique involves a deliberate, intentional search of a DNA database using specialized software to detect and rank candidates who may be close biological relatives of individuals whose DNA is in the state’s databank.
The FBI describes the process as follows:
Familial searching is an additional search of a law enforcement DNA database conducted after a routine search has been completed and no profile matches are identified during the process. Unlike a routine database search which may spontaneously yield partial match profiles, familial searching is a deliberate search of a DNA database conducted for the intended purpose of potentially identifying close biological relatives to the unknown forensic profile obtained from crime scene evidence. Familial searching is based on the concept that first-order relatives, such as siblings or parent/child relationships, will have more genetic data in common than unrelated individuals. Practically speaking, familial searching would only be performed if the comparison of the forensic DNA profile with the known offender/arrestee DNA profiles has not identified any matches to any of the offenders/arrestees.4
Familial DNA searching and partial-match DNA analysis use fewer genetic markers than are used in standard testing protocols to determine a match between a forensic DNA sample and a DNA profile held in a databank.5 An imprecise match, or non-match, between crime scene evidence and the DNA profile of an individual in the databank would exclude that person as a suspect based upon DNA evidence alone. However, partial-match and familial-searching techniques are used to implicate blood relatives of this individual as suspects in criminal investigations – even though criminal suspicion will attach to innocent persons merely because of their biological relation to a person whose DNA is in the state’s databank. By definition, then, these techniques introduce imprecision, and the potential for error, in the analysis of forensic DNA and in the criminal investigation based upon this analysis.6
To implicate innocent persons as targets of a criminal investigation on the basis of familial DNA searching introduces a heightened risk that constitutional violations will occur. Scientists and scholars have warned that use of DNA evidence to conduct familial searching is highly susceptible not only to human error, but to fraud and abuse. In 1992 the National Research Council, whose members include the nation’s most distinguished scientists and academics, issued a report that stated,
DNA databanks have the ability to point not just to individuals but to entire families including relatives who have committed no crime. Clearly, this poses serious issues of privacy and fairness. . . . [I]t is inappropriate for reasons of privacy to search databanks from convicted criminals in such a fashion. Such uses should be prohibited both by limitations on the software for search and by statutory guarantees of privacy.7
For these reasons, Prof. Erin Murphy has advised against authorizing the use of familial DNA searching. She argues that
Familial searches should be forbidden because they embody the very presumptions that our constitutional and evidentiary rules have long endeavored to counteract: guilt by association, racial discrimination, propensity, and even biological determinism. They are akin to adopting a policy to collect and store the DNA of otherwise database-ineligible persons, solely because they share a blood relation with a convicted person, while deliberately sheltering similarly situated individuals from similar genetic exposure. Such an approach is likely to be an ineffective means of crime control—particularly when weighed against the costs done to society by such a strategy—and, even if effective, contradicts the very principles of equality and liberty that law enforcement serves to uphold and defend.
The NYCLU concurs with the foregoing objections to the use of familial DNA searching techniques. These comments address three concerns regarding the Commission’s anticipated proposal:
(1) the Commission exceeds its statutory authority in promulgating such a rule;
(2) the proposed familial DNA searching policy poses great risks to constitutional protections of privacy; and it will be persons of color – blacks and Latinos – whose constitutional rights are most likely to be violated by the use of family DNA searching; and
(3) in light of rapidly advancing forensic technology, including the use of forensic DNA, New York State must develop a far more rigorous system of oversight and accountability.
The following analysis is not a complete or comprehensive statement of concerns regarding the familial DNA searching; the NYCLU intends to elaborate upon these comments as the Commission provides more information regarding the framework and scope of the proposed rule.
II. The Department of Criminal Justice Services and the Commission on Forensic Sciences lack the statutory authority to promulgate the proposed “familial DNA searching policy”
Implementation of the proposed familial DNA searching policy presents this scenario: A lab technician issues a lab report that indicates an “indirect association” – that is, a similarity – between a DNA profile from a crime scene and a profile in the state’s databank that may lead to an individual who is a biological relative of the offender. DCJS then releases to prosecutors the identity of the individual whose DNA is a close match with crime scene evidence.
Existing law does not permit the Commission on Forensic Science to authorize familial DNA searching; nor does DCJS possess such authority. The Commission’s mandate, clearly defined in the Executive Law, is to ensure the accuracy, efficiency and integrity of the DNA databank operation. The Commission’s principal responsibility is to develop “minimum standards and a program of accreditation for all forensic labs in New York State.”8 The Commission is further directed to promulgate “a policy for the establishment and operation of a DNA index consistent with the operational requirements and capabilities of the division of criminal justice services.”9 These duties are to be performed by the Commission pursuant to a policy and plan established by DCJS.10
However, both the Commission and DCJS are limited by statute regarding the exercise of this authority. Regulatory enactments must be in harmony with the statute; rules and regulations may be promulgated only to the extent they are consistent with the will of the legislature.11 And state law does not authorize, and does not anticipate, the use of DNA profiles in the state’s databank to facilitate criminal investigations of individuals based solely upon the fact their DNA is similar to a family member whose DNA profile may be in the state’s data bank. To the contrary, the statutory scheme intends to prevent recidivism, and to facilitate the prosecution of recidivist offenders, by maintaining DNA identifiers of certain convicted offenders.12
The Executive Law authorizes DCJS to establish a state DNA identification index pursuant to a plan that is subject to the review and approval of the Speaker of the Assembly and the Temporary President of the Senate.13 The statute provides that certain designated offenders, convicted of crimes specified by the legislature, shall be required to provide a DNA sample “for DNA testing to determine identification characteristics specific to such person and to be included in a state DNA identification index.”14 (Emphasis provided.) The statute also provides for the promulgation of rules and regulations for purposes of “notifying designated offenders” of these requirements.15 Laboratories are directed by this statute to limit DNA analysis to “only those markers having value for law enforcement identification purposes.”16 This language, in the context of the statutory scheme, refers to the identification of a designated offender, as determined by the legislature, for the purposes of establishing whether that individual’s DNA matches crime scene evidence.
The legislative history of this statute is consistent with this reading of the law. In a 1994 memorandum sent to Governor George Pataki, then-Attorney General G. Oliver Koppell succinctly described the purpose of the proposed “Commission on Forensic Science and Establishment of DNA Identification Index.” Koppell wrote that DNA is a unique tool that can be used to “provide positive identification of those who have committed violent crimes.” (Emphasis provided.) In particular, Koppell stressed that the creation of a DNA database would enable law enforcement to “take a DNA sample from a crime scene and compare it with DNA data in the file.” (Emphasis provided.) Indeed, Koppell added, DNA searches are “especially useful in investigating crimes such as rape, which has a high recidivism rate.” Koppell concluded his endorsement of the DNA database legislation by observing that the bill had been carefully crafted to “enhance law enforcement investigations while not trampling on the rights of innocent individuals.” (Emphasis provided.)
The Commission’s authority to address “DNA methodology or methodologies” must be construed within this statutory scheme, as adopted by the legislature.17 The legislature has been actively engaged with the issues related to the DNA databank. Amendments to the DNA statute have identified new predicate offenses that require the submission of a DNA sample to the state’s databank.18 However, the legislature has not, prior to 2017, entertained legislation that would authorize the use of partial-match DNA, as proposed by the Commission.
Beyond questions regarding the authority of the Commission on Forensic Science to promulgate a regulation regarding familial DNA searching, the manner in which the Commission has announced the proposed familial DNA searching regulation also raises concerns regarding the transparency and accountability of this undertaking. The invitation to comment on the proposed familial DNA searching regulation was issued on Dec. 20, 2016, on the eve of holidays. The deadline for submitting comments was Jan. 18, 2017, the day after the governor was scheduled to release the annual budget. The call for comments included no actual proposal. However, a formal hearing was announced for Feb. 10. Given the complex and controversial issues of law policy implicated by this proposal, it would be advisable for the Commission to undertake its deliberations in a manner that invite broad public participation, and also to refer the matter to lawmakers for consideration.
. . . [B]ecause partial match searches are effectively de facto expansions of the DNA database, and transform the storage of “junk” genetic identifiers into valuable familial genealogical charts, they should be presumptively unconstitutional absent express and tailored legislative approval at both the state and federal level. . . . Just as neither sound public policy nor constitutional doctrine would permit the decision to wiretap to be made on an ad hoc, informal basis – whether by an individual investigator or by a department chair or by an executive official – so too should it forbid the delicate questions surrounding the implementation of familial search methods to be resolved in such an informal and opaque manner.19
III. The proposed familial DNA searching policy poses serious risks to the privacy rights of individuals whose DNA profile is held in the state’s databank, and to the privacy rights of those individuals’ family members
Courts have developed, and applied, a well-defined test for evaluating the constitutionality of a statute that authorizes the state to retain DNA profiles of individuals who have been convicted of certain predicate offenses. This test seeks to ensure that “intrusion into [an individual’s] privacy resulting from [the] state’s practice of analyzing and maintaining DNA records does not outweigh the government’s strong interest” in “obtaining information from convicted offenders and keeping a record of such information.” Nicholas v. Goord, 430 F.3d 652, 669 (2d Cir. 2005)20
The jurisprudence of the Second Circuit Court of Appeals has addressed the application of this test with precision. This inquiry finds that the “analysis and maintenance of [offenders’]” DNA profiles constitutes a significant intrusion upon individual privacy, in light of the “vast amount of sensitive information that can be mined from a person’s DNA and the very strong privacy interests that all individuals have in this information.” U.S. v. Amerson, 483 F.3d 73, 85 (2d Cir. 2007)21
The Chief Judge of the Second Circuit Court of Appeals wrote in Nicholas that notwithstanding the potential for violations of privacy, New York’s DNA statute does not allow for the analysis of sensitive personal information, but “provides only for the analysis of identifying markers.”22 And here the judge cites those provisions of the statute that refer to identifying markers “specific to such person” identified by the legislature as a “designated offender.”23 Likewise, the opinion in Amerson states that the current state of scientific knowledge gives assurance that the DNA profile derived from an offender’s blood sample “establishes only a record of the offender’s identity.”24
These rulings on the constitutional issues raised by the state’s maintenance of a DNA databank conclude that the limits of science and the constraints of statute (including penalties for misuse of DNA) minimize the privacy invasion sanctioned by the state’s archiving of DNA profiles.25
However, the proposed familial-search policy alters fundamentally both the legal and scientific “context” regarding the state’s collection and use of forensic DNA. The Commission’s new rule would authorize the release to law enforcement of the identity of individuals who have been excluded as criminal suspects for the stated purpose of investigating the family members of those individuals as possible criminal suspects. These family members may then become the targets of a criminal investigation solely because their genetic profile is similar to the DNA profile of a relative held in the state’s databank.
These “suspect” family members may be subject to questioning upon a police visit to their home. They may be subject to custodial interrogations – or to questioning that leads them to believe they are in police custody. The police may inform these individuals, who have brought suspicion upon themselves due to their genetic resemblance to a former offender, that they can remove themselves from suspicion by providing a DNA sample to the police. Police may trail these suspect family members in order to retrieve a DNA sample left on a discarded coffee cup or cigarette butt. And what becomes of those DNA samples that are scavenged by police, or submitted under coercion? Will police or local medical examiners permanently maintain these DNA profiles in local DNA databanks?
The diminishment of personal privacy rights is inherent in familial DNA search protocols. Familial search techniques “effectively add the profiles of innocent relatives to the database, even though they are not eligible for inclusion according to the established legal criteria.”26 Criminal suspicion attaches to persons who are wholly innocent of wrongdoing. And even if the subject of a familial search is entirely innocent of criminal wrongdoing, that determination will only become known “after a measure of investigation has occurred. . . . The investigation alone has the capacity to deepen rifts within strained family bonds.”27
Familial DNA searching will also compromise the privacy rights of former offenders whose DNA is in the state’s databank. It is well established that criminal offenders have diminished Fourth Amendment rights, which are subjugated to the state’s superior interest in having accurate and efficient tools and procedures for identifying criminal suspects and preventing recidivism.28 But Prof. Murphy argues that “familial searches depart from these foundational assertions. . . . [F]amilial searches effectively transform the acquired information from a glorified genetic social security number into a blooming family tree.”29 Investigators may interrogate former offenders about their most intimate relationships – questions, for example, about their children, their parents, their siblings. And, as Prof. Murphy observes, families in American society are social, not biological, constructs.30 Therefore answering such questions may disclose intimate and sensitive information regarding, for example,” “abandoned parental bonds, adopted relationships, children conceived artificially, even family secrets about parental identity.”31
The full implications of the partial matching policy are presently unknowable. Familial searching that utilizes genetic profiles stored in a database is a relatively new phenomenon; there is no comprehensive study of the analytic methodologies utilized, of the criminal investigation techniques employed, or of the outcomes of cases that involve the use of familial DNA searching.
However the scientific and technical imprecision of familial DNA searching are well documented, as is the concern raised in court rulings about constitutional violations that may follow.
Racial and ethnic disparities in the use of familial DNA searching to conduct criminal investigations
It is well documented that there are gross racial and ethnic disparities in the nation’s prison population: Incarceration rates for blacks are six times higher than for whites; Latinos are incarcerated more than twice as often as whites are.32
The racial and ethnic disparities in New York State’s prison population are particularly stark: 73 percent of those incarcerated are black or Latino.33
These racial disparities in the prison population do not necessarily reflect higher rates of offending among those groups in the general population.34 However, the disparities in the prison population are reflected in the population of those whose DNA is in the databank. And the greater the representation of a racial or ethnic group in the DNA databank, the greater the possibility that members of those groups will become the focus of a familial search: this law-enforcement strategy will be enforced primarily in communities of color.
To the extent there is racial bias and ethnic bias in the criminal justice system, the use of forensic DNA databanks will have a tendency to exacerbate this bias. And to the extent error and fraud is involved in the use of forensic DNA, the individuals harmed will most often be persons of color.35
Stanford Professor Henry T. Greely estimates that if the national database were used to conduct familial searching, about one-third of the black population would be “put under surveillance.”36 Another scholar observes that familial DNA testing “will disproportionately affect the Hispanic community” because the technique “uses biological relatedness as the trigger for criminal investigation and DNA extraction, [which] ensures that groups with more children and large families relative to other groups will be at higher risk for genetic surveillance.”37
These findings should give pause to members of the Commission and to law makers; the data substantiate a well-founded concern that partial-match DNA analysis and familial DNA searching techniques will lead to criminal investigations and prosecutions tainted by racial and ethnic bias.
IV. Before further consideration is given to authorizing familial DNA searching in New York, government officials must address the need for more rigorous standards, oversight and accountability regarding the use of forensic technology
In 2009, the National Academy of Sciences, at the direction of the U.S. Congress, published a report based upon a comprehensive and in-depth review of forensic science.38 The report acknowledged advances in the use of DNA technology that have led to the identification of persons who had committed crimes; but also observed that “faulty forensic science analyses” may have led to the wrongful conviction of innocent persons, as a consequence of imperfect testing and analysis.
Police and prosecutors in New York use forensic DNA with increasing frequency in criminal investigations. The state now requires that persons convicted of any crime in the state’s penal code must submit a DNA sample. The increase in the DNA reference samples stored by the state correlates with an increase in the collection, handling and analysis of DNA samples by investigators and technicians. The expansion of the databank will also increase the probability that a partial-match between crime-scene evidence and a reference sample will lead to investigations of innocent persons.
Under optimum circumstances, DNA evidence is extraordinarily reliable. However, the collection and analysis of DNA evidence is a human endeavor. It is susceptible to human fallibility – and this scientific fact has not been given sufficient consideration in the debate over the size and scope of the state’s DNA databank.39
Prof. William C. Thompson40 has documented an unexpectedly high incidence of error and fraud in the collection, handling and analysis of DNA evidence: mislabeling of samples, cross contamination of samples, misinterpretation of results, misrepresentation of results.41 Thompson has documented these problems in labs across the country, including the DNA lab operated by New York City’s medical examiner.42 An analyst in that lab had been “faking the result of control samples designed to detect instances in which cross-contamination” may have occurred.43
According to Thompson, we are not seeing a sudden deterioration in the quality of DNA testing, but the identification of problems that have long existed – problems that occur even in the best labs – but have been successfully hidden.44
In a 2009 report the National Academy of Sciences issued a sweeping critique of the nation’s crime labs, observing that forensic scientists with law enforcement agencies “sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”45 New York is not immune to these problems.
- In 2009, the state’s inspector general published a report that concluded a forensic analyst with the New York State Police crime lab had falsified test results over a fifteen-year period.46 The analyst had not been properly trained; his superiors not only condoned the fraudulent conduct, but also attempted to conceal it.
- In 2007, the Inspector General’s office exposed a similar problem in the NYPD’s crime lab. A report by the office concluded that lab analysts falsified forensics tests. The NYPD failed to investigate the matter effectively; the department was also delinquent in failing to report that evidence had been compromised.47
- A 2011 report by New York’s Inspector General exposed serious and systemic problems related to oversight, accountability, accreditation, and staff qualifications at the Nassau County Police Department’s Forensic Evidence Bureau (FEB), which was subsequently closed by order of the Governor. The Inspector General concluded that “the FEB was plagued with significant and pervasive problems that were allowed to persist due to failures at each level of oversight” – from the local police department and district attorney’s office, to the Nassau County government, to the State’s Commission on Forensic Science.48 The report concluded, “The failure at the laboratory level was profound. Over its eight-year history, the FEB suffered from weak leadership, a dysfunctional quality management system, analysts with inconsistent training and qualifications, and outdated and incomplete testing procedures.”
- A 2013 New York Times investigation revealed that a lab technician in the York city Medical Examiner’s office (OCME) had been mishandling or overlooking DNA evidence. As a result of the technician’s mistakes, OCME had to re-examine evidence in more than 800 rapes cases.49 A few months later, a top deputy with OCME resigned amid allegations she had not followed laboratory protocols with regard to DNA evidence in at least two cases.50
- In 2016 the Albany Times Union reported that fifteen DNA analysts with the New York State Police crime lab, in Albany, were suspended for cheating on exams meant to certify competence in using TruAllele, a new computerized DNA software program.51 Senior police officials were opposed to implementing TruAllele, which had cost more than $4 million to implement, out of concern that the program would be used to re-examine evidence in older cases.52 An editorial by the Albany Times Union concluded, “Either scenario suggests that people may have gone to prison based on questionable DNA tests. That would be an indictment of a form of evidence that has long been regarded as virtually unassailable, and a crisis of confidence for a criminal justice system that has relied on it.”53
The creation of a massive DNA databank that facilitates the routine use of forensic DNA in criminal investigations and prosecutions poses novel and complex challenges to the integrity of the criminal justice system. A former assistant district attorney in Manhattan put the issue this way:
DNA databanks do help apprehend dangerous criminals (and thereby prevent crime). But most people aren’t violent criminals and never will be, so putting their DNA on file exposes them to risks that they otherwise wouldn’t face. First, people who collect and analyze DNA can make mistakes (witness the Houston Police Department Laboratory, whose slapdash DNA procedures led to at least one wrongful conviction). Second, people can be framed by the police, a rival or angry spouse. Third, DNA is all about context; there may be innocent reasons for a person’s DNA to be at a crime scene, but the police are not always so understanding.54
The state has failed to address these concerns. For example, the use of external, blind proficiency testing – conducted by independent, anonymous technicians and scientists – can prevent errors such as cross-contamination. The National Research Council recommended this practice in 1992; many scientists believe it is an essential quality control measure.55 However, under existing New York law, such testing is discretionary – and is therefore rarely done.56
State laws and policies also fail to recognize that DNA labs must be protected from undue influence of law enforcement agencies that may bias or otherwise compromise the objectivity of laboratory procedures. Dr. Roger Koppl, director of the Institute for Forensic Science Administration at Fairleigh Dickinson University, and investigative reporter Radley Balko have recommended that crime labs and DNA labs should not be housed within the same bureaucracy that includes district attorneys and police agencies.57 The problem with this arrangement has been documented in the research of Prof. William C. Thompson and other scientists. These studies find that forensic scientists typically fail to take measures to “blind” themselves to the expected outcome of their analysis – when faced with ambiguity in the information presented in a DNA sample, crime lab analysts frequently fit the their interpretations to support the prosecution’s theories.58
Those who defend the adequacy of existing quality-control measures challenge skeptics to identify a criminal prosecution that has been overturned due to error or abuse related to DNA.59 But this defense poses the wrong question. The pertinent question is this: Are there sufficiently rigorous and independent oversight procedures to ensure that error and abuse will be discovered – and that if it is, rigorous case review will follow, along with sanctions and discipline if negligence or wrongdoing is involved? The answer is no. Policy makers must account for the fact, as documented in the Innocence Project’s record of exonerating the wrongfully convicted, that prosecutorial misconduct is often a factor in wrongful convictions.60 The advent of DNA only makes more complex the challenge of identifying the unlawful manipulation of evidence.
When a system of testing and archiving DNA undergoes massive expansion, as has happened in New York, the potential for error and abuse that is inherent to that system also increases. Following its review of the nation’s crime labs, in 2009, the National Academy of Sciences called for a “new, strong and independent entity . . . objective and free of bias . . . to implement a fresh agenda of regulatory standards and oversight.”61 New York officials should heed this call.
Reconstitute the Commission on Forensic Sciences
The 1994 legislation authorizing the creation of the state’s DNA databank also established the Commission on Forensic Sciences. The Commission, as presently constituted, is inadequate to the task with which it is charged, particularly as regards the use of forensic DNA. This is related, in part, to limitations prescribed by statute: The commission does not have a dedicated budget or staff; its members, who serve pro bono, meet only periodically.
The statute creating the Commission on Forensic Sciences was considered path breaking; it is no longer. Advances in forensic sciences have far outpaced advances in the systems and methods of oversight and accountability. It is time for New York lawmakers to reconstitute the Commission.
This new commission would be afforded greater independence and autonomy; it would be allocated the staff and resources to provide rigorous and routine oversight of the collection and use of forensic DNA. The commission would be mandated to establish and implement best-practice protocols as related to scientific methodology and laboratory procedures, including the authority to inspect and evaluate forensic DNA laboratories; develop test and audit procedures; review lab reports and test results; audit the outcome of criminal investigations involving DNA evidence; provide direct oversight regarding the management and operation of DNA laboratories.
The use of government DNA databanks to conduct DNA partial match testing is a relatively recent development, dating from 2002. The use of partial-match DNA techniques is not well understood; nor is there sufficient documentation to evaluate the use of familial DNA searching. A RAND Corporation report concluded that evaluating the efficacy of CODIS is difficult because “data are seriously lacking.”62 As a consequence, the public policy debate over the use of partial match DNA in the context of criminal investigation has been driven by news accounts, often of a sensational nature.63
In the preceding comments the NYCLU makes the case that the development of policies and practices regarding the use of forensic DNA in New York has not given sufficient consideration to the potential harms – to fundamental rights and liberties, and to the integrity of the criminal justice system. This same concern is now raised regarding the proposal that New York authorize family DNA searching.
The NYCLU therefore must respectfully urge the Commission to withdraw the proposal, and to revisit the issue in a manner that affords rigorous, open and public deliberations.
1 Partial Match Policy for the DNA Databank, I.D. No. CJS-29-10-00013-P, Amendment of Part 6192 of Title 9 NYCRR (issued July 21, 2010) [Hereafter referred to as “Partial Match Policy”].
3 See Partial Match Policy for the DNA Databank, Title 9 NYCRR §6192.3 (“Forensic DNA Methodology”); subdivisions (e) and (f).
5 Erin Murphy, “Relative Doubt: Familial Searches, of DNA Databases,” 109 Michigan Law Review 292, 297-298, 317 (2010); and Lindsey Weiss, “All in the Family: A Fourth Amendment Analysis of Familial Searching,” the Selected Works of Lindsey Weiss, at 8 (2008), available athttp://works.bepress.com/lindsey_weiss/2. DNA typing analyzes genetic markers at thirteen sites, or loci, on the genomic strand. The analysis involves identification of the number of times these markers appear at a specific locus. At each locus analysts measure two repeated strands of markers – or alleles – one inherited from the father, the other from the mother. Counting these repetitions at each of the thirteen loci provides twenty-six discrete measurements that can help to distinguish one individual from another. A search of twenty-six alleles has a high probability of identifying a single match. The proposed partial match policy uses fewer loci as a basis for typing the genetic identity of individuals. The Commission has not provided information regarding the statistical models that would be used in familial DNA searching. It is critical, however, that the Commission publish and invite comment from independent science experts regarding the testing and analytic protocols employed.
6 Frederick R. Bieber, et al., “Finding Criminals Through DNA of Their Relatives,” Science, Volume 312 (June 2, 2006).
7 National Research Council, “DNA Technology in Forensic Science,” National Academy Press, Washington, D.C. (1992).
8 N.Y. Exec. Law Article 49-B §995-a(1).
9 Id. at §995-a(9).
10 Id. at §995-c(1).
11 Weiss v. City of New York, 731 N.E.2d 594, 596 (N.Y., 2000). (“It is a fundamental principle of administrative law that an agency cannot promulgate rules or regulations that contravene the will of the Legislature. If an agency regulation is ‘out of harmony’ with the applicable statute, the statute must prevail.”) [Internal citations omitted.] See also Gallo v. Pataki, 831 N.Y.S.2d 896, 898 (N.Y. Sup. Ct., 2007). (An administrative agency is constitutionally bound to exercise its authority “within the boundaries of its legislative delegation” when promulgating rules; finding that persons against whom a criminal conviction was resolved pursuant to a plea agreement, parole, or post-release supervision could be required to submit a DNA sample to the state.) [Internal citations omitted.]
12 See Nicholas v. Goord, 430 F.3d 652 (2d Cir. 2005).
13 N.Y. Exec. Law §§995-c(1) and (2).
14 Id. at §995-c(3).
15 Id. at §995-c(4).
16 Id. at §995-c(5).
17 This language appears in Executive Law Art. 49-B §995-b(9)(a). But this provision is not a freestanding, independent source of the Commission’s legal authority; it is circumscribed by the larger statutory framework that includes Art. 49-B §§995-c and 995-a.
18 See N.Y. Exec. Law §995(6). In 2010, the state enacted legislation that makes all misdemeanors predicate offenses requiring submission of a DNA sample; however the legislation also included provisions that improve quality assurance methods, create new procedures for collecting and storing crime scene evidence, and provide individuals either convicted of or charged with a crime access to forensic DNA for purposes of establishing innocence (DNA Databank Omnibus Bill (2010) ). In 2006 the statute was amended to include all felony offenses and selected misdemeanor offenses as predicate offenses requiring submission of a DNA sample; in 2004 the acts of terrorism were added to the statute; and in 1999 a list of felony offenses were added to the violent offenses requiring submission of a DNA sample to the state.
19 Erin Murphy, supra note 5.
20 Nicholas, 430 F.3d at 669. (The court addressed a threshold issue before undertaking this balancing test, asking whether the requirement that a convicted offender submit DNA to a government databank is in the service of “ordinary law-enforcement needs” – under which circumstance a warrant of probable-cause finding would be required – or if the practice constituted a “special need” of law enforcement. The court concluded that New York’s DNA statute can be justified under the special needs exception because its primary purpose is to assist in future criminal investigations that may involve DNA testing of evidence. Id. at 667-671.)
21 Amerson, 483 F.3d at 85 (citing U.S. v. Kincade, 379 F.3d 813, 843 (9th Cir. 2004)).
22 Nicholas, 430 F.3d at 670.
23 Id. (citing N.Y. Exec. Law §§995-c(3) and (5)).
24 Amerson, 483 F.3d at 85 (citing Kincade, 379 F.3d at 818).
25 Id. at 85.
26 Erin Murphy, supra note 5, at 325.
27 Id. at 315.
28 See generally Nicholas, 430 F.3d and Amerson, 483 F.3d.
29 Erin Murphy, supra note 5, at 315.
30 Id. at 315.
31 Id. See also Weiss, supra note 5, at 20-21.
32 See Sentencing Project, Report to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System, August 2103. [Report to the United Nations Regarding Racial Disparities].
33 Sentencing Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons, June 2016.
34 See Report to the United Nations Regarding Racial Disparities, supra, note 34. For example: whites use and sell drugs at the same rate as blacks and Latinos, but approximately 90 percent of those imprisoned in New York for drug offenses are persons of color. NYS Department of Correctional Services data, as reported to the Correctional Association of New York, available at http://www.correctionalassociation.org/publications/download/ppp/factshe.... The same disparity occurs in NYPD marijuana misdemeanor arrests. Whites use and sell marijuana at higher rates than blacks or Latinos, but 87 percent of persons arrested for marijuana in 2009 were black or Latino. See Harry G. Levine, New York City’s Marijuana Arrest Crusade…Continues (Sept. 2009). See, also, Austin, et al., Unlocking America, Why and How to Reduce America’s Prison Population (JFA Institute, 2007).
35 See Ellen Nakashima, “From DNA of Family, a Tool to Make Arrests,” Washington Post (April 21, 2008); and Daniel J. Grimm, “The Demographics of Genetic Surveillance: Familial DNA Testing and the Hispanic Community,” Columbia Law Review, Vol. 107:1164 (2007).
36 See Nakashima, supra note 35
37 See Grimm, supra note 35.
38 National Research Council, Committee on Identifying the Needs of the Forensic Sciences Community, Strengthening Forensic Science in the United States: A Path Forward (National Academies Press, 2009).
39 See, e.g., Maura Dolan and Jason Felch, “DNA: Genes as Evidence, The Danger of DNA: It Isn’t Perfect, latimes.com, December 26, 2008; and John Tierney, “Bad Science in Court,” TierneyLab, New York Times, August 14, 2008
40 J.D., Ph.D, Department of Criminology, Law & Society, University of California, Irvine.
41 See William C. Thompson, “Tarnish on the ‘Gold Standard’: Recent Problems in Forensic DNA Testing,” The Champion, January/February 2006.
42 Id. pp. 11-12.
43 Id. p. 11.
44 Thompson and other experts have observed that “[L]aboratory data frequently reveal[ ] limitations or problems that would not be apparent from the laboratory report, such as inconsistencies between purportedly ‘matching’ profiles, evidence of additional unreported contributors to evidentiary samples, errors in statistical computations and unreported problems with experimental controls that raise doubts about the validity of the results.” See William C. Thompson, Simon Ford, Travis Doom, Michael Raymer and Dan E. Krane, “Evaluating Forensic DNA Evidence: Essential Elements of a Competent Defense
45 Adam Liptak, “Justices Rule Lab Analysts Must Testify on Results,” New York Times, June 26, 2009.
46 See New York State Office of the Inspector General, Report of Investigation of the Trace Evidence Section of the New York State Police Investigation Center (December 2009).
47 New York State Office of the Inspector General, Investigation of Drug Test Irregularities at the NYPD Forensic Laboratory in 2002 (December 2007).
48 See New York State Office of the Inspector General, Investigation into Nassau County Police Department Forensic Evidence Bureau (November 2011)
49 Joseph Goldstein, “New York Examines Over 800 Rape Cases for Possible Mishandling of Evidence,” New York Times, Jan. 10, 2013.
50 Shayna Jacobs, “DNA-Testing Pioneer resigns from Medical Examiner’s Office,” New York Daily News, May 16, 2013.
51 Brendan J. Lyons, “Scientists suspended as State Police DNA Scandal deepens,” Albany Times Union, April 12, 2015.
52 Brendan J. Lyons, “State Police DNA Analysts file bias case”, Albany Times Union, Feb. 17, 2016
53 Times Union Editorial Board, “A mystery at the state lab,” Albany Times Union, Feb.22, 2016
54 Harlan Levy, “Caught Up in DNA’s Growing Web,” New York Times (op ed), March 17, 2006.
55 See Radley Balko and Roger Koppl, “C.S. Oy: Forensic Science is Badly in Need of Reform. Here Are Some Suggestions,” Slate, Aug. 12, 2008, http://www.slate.com/id/2197284/pagenum/all/#page_start. See also Maura Dolan and Jason Felch, “DNA: Genes as Evidence, The Danger of DNA: It Isn’t Perfect, latimes.com, December 26, 2008
56 See Executive Law, §995-b.2(c))
57 See Radley Balko and Roger Koppl, supra, n. 55.
58 Citing a case that involved a crime-scene sample with DNA from two individuals, Prof. Thompson observes: “We often see indications, in the laboratory notes themselves, that the analysts are familiar with facts of their cases, including information that has nothing to do with genetic testing, and that they are acutely aware of which results will help or hurt the prosecution team. A DNA analyst in one case wrote: . . . ‘Death penalty case. Need to eliminate [other individual] as a possible suspect.” See William C. Thompson, Simon Ford, Travis Doom, Michael Raymer and Dan E. Krane, “Evaluating Forensic DNA Evidence: Essential Elements of a Competent Defense Review,” The Champion (April 2003), p. 4.
59 See, e.g., Denise O’Donnell, “A DNA Databank, and Justice for All,” Albany Times Union, June 20, 2007. (O’Donnell was then-Commissioner of the New York State Division of Criminal Justice Services.)
60 See, The Innocence Project, “Murder Case against Ralph Armstrong after Prosecutor Hid Evidence of His Innocence”: http://www.innocenceproject.org/murder-case-against-ralph-armstrong-dism... [“Prosecutorial misconduct has played a role in scores of wrongful convictions that were later overturned with DNA testing. . . . Among 241 people nationwide who were exonerated through DNA testing, fully 25 % cited prosecutorial misconduct in their appeals or civil lawsuits. In 38 % of those cases, prosecutors were accused of withholding evidence that could prove innocence.”] Also see, Innocence Project, “Court Findings of Prosecutorial Misconduct Claims in Post-Conviction Appeals and Civil Suits Among the First 255 DNA Exonerated Cases”, October 2010: http://www.innocenceproject.org/wp-content/uploads/2016/04/pmc_appeals_2...
61 See National Research Council, supra note 39, at 18.
62 RAND Center on Quality Policing, Toward a Comparison of DNA Profiling and Databases in the United States and England (2010) at 22 (“[D]ata are seriously lacking in the U.S. system. Inadequate and insufficient data are captured by the various labs and CODIS organizations. Very little of the data that do exist and are publicly available are reported to a central repository, such as the FBI.”). Available at http://www.rand.org/pubs/technical_reports/TR918.html
63 See Erin Murphy, supra note 5, at 238.