On the Edges of Science and Law

CSI Meets PhD: Should Universities Require DNA Testing of Job Applicants?

 By Lori Andrews

If you're applying for a job at the University of Akron, you may have more to worry about than the old adage of publish or perish.  Whether you want to work as a secretary or a tenured professor, a new university policy empowers the college to require job applicants to submit DNA.  Laurie Massie, a spokesperson for the University of Akron, told CBS News that the board decided to include DNA testing in the policy because "there have been national discussions that indicate that in the future, reliance on fingerprinting will diminish and DNA for criminal identification will be the more prominent technology." 

But Massie’s statement obscures the difference between a DNA sample and a fingerprint.  Taking DNA is more intrusive, even if it is just done through a cheek swab.  A recent criminal case, Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), found that police exceeded their authority when they subjected an unwilling suspect to a cheek swab.  Plus, DNA contains far more information than does the fingerprint.  Testing an applicant’s DNA could provide information about whether the applicant, while healthy now, was likely to develop a costly-to-treat genetic disease.  Even if the DNA was only used to see if an applicant’s DNA was in the federal DNA databank because he or she had committed a crime, adding employment searches to the investigative searches of the databank would result in even greater backlogs than currently exist.

DNA Evidence – A Boon to Law Enforcement, but the Start of a Storage Nightmare

by Lori Andrews

When I spoke a national meeting of law enforcement personnel and prosecutors, I was fascinated by the new forensic tools spanning every type of evidence -- from photographs to footprints, from gum to guns.  But, in the hallways, between the scientific and legal presentations, the men and women working in the criminal justice system sounded a lot like 20somethings complaining about their first apartment.  Sure, there were changes in technologies.  But there was a bigger problem:  Where were they going to store all the evidence?
 
With the advent of DNA technologies, forensic officials who had been pack rats were able to convict people of old crimes. This past weekend, for example, a suspect was arrested for the 1989 murder of an elderly woman; modern DNA technology allowed old evidence to be analyzed.   Evidence from decades ago has also been retested through efforts like the Innocence Project, letting many innocent men go free. In fact, yesterday, the Richmond Times Dispatch announced six training sessions for volunteer lawyers on how to contact the 881 Virginia felons whose old cases included evidence ripe for potentially-exculpatory genetic testing.

People Always Told Me Be Careful What You Do: The Supreme Court's Refusal to Determine a Constitutional Right to Post-Conviction DNA Testing

GUEST BLOGGER Aaron Midler

Last month, the Supreme Court of the United States decided that convicted prison inmates do not have a constitutional right to post-conviction DNA testing. The Court's decision in District Attorney's Office for the Third Judicial District v. Osborne dealt a significant blow to prisoners in the three states without provisions for post-conviction DNA testing, as well as prisoners who cannot prove conclusively that DNA testing will exonerate them.  Blog entries by Tim Welch, here and here, explore these issues more fully.

Last month's decision is also an interesting example of how the Supreme Court deals with the potential of new technology to upset the established legal system.  Chief Justice Roberts, writing for the majority, framed the problem as "how to harness DNA's power to prove innocence without overthrowing the established system of criminal justice."  The majority's solution to this problem was to not disturb the "prompt and considered" response of state legislatures in drafting post-conviction DNA statutes. The majority reasoned that creating a constitutional right to post-conviction DNA testing would shift the responsibility of adapting the criminal justice system to DNA technology from the legislatures to the courts. If the Court had determined that a constitutional right to post-conviction DNA testing existed, the majority predicted that the Court would soon be required to determine a host of other questions, such as whether the states are constitutionally obligated to preserve DNA evidence for future testing--a result that the majority aimed to avoid.

Should Infant DNA Later Be Used in Forensics?

By Lori Andrews

Since the 1960s, public health departments around the globe have tested hospitalized newborn babies for serious genetic disorders, generally without the parents' knowledge or consent.  Many departments save that DNA, tiny spots of blood on paper.  Now questions have arisen about whether law enforcement officials should have access to those samples.  In other words, should babies have a right not to self-incriminate themselves?

In the United States, an Institute of Medicine committee recommended that DNA banks created for medical and research purposes (such as newborn screening banks) not be used for forensic purposes.  But, in other countries, courts have handled fascinating cases on route to setting policies.

Do Inmates Have a Constitutional Right to DNA Testing? U.S. Supreme Court Says No.

By Tim Welch

Last month, I wrote an entry about the current trend of prosecutors blocking convicted prison inmates from accessing DNA testing on old pieces of evidence stored in police files.  Despite inmate advocacy groups' claims that DNA tests have exonerated hundreds from false imprisonment, prosecutors are denying the tests to inmates, citing insufficient scope of state laws.  William Osborne, a man currently serving a 26-year sentence for a 1994 rape conviction in Alaska, brought his case all the way to the Supreme Court.  Osborne is seeking a DNA test under 42 U.S.C. § 1983 on police evidence collected during his 1994 rape trial.  But yesterday, the Supreme Court dealt a major blow to the wrongfully-convicted of America's prisons.

On June 18, 2009, the Supreme Court ruled 5-4 against Osborne, deciding that convicted prison inmates do not have a constitutional right to obtain DNA tests on old evidence.  As a result, the decision of whether or not to grant inmates access to DNA testing will remain in the hands of state courts and legislatures.  While according to the Chicago Tribune, 47 states have already enacted laws that allow inmates to receive DNA testing in some post-conviction instances, Alaska is not one of them.  Osborne, who won in the U.S. Court of Appeals for the 9th Circuit, may now face an impossible task in obtaining what he believes to be justice.

Should Inmates Have Access to DNA Testing? Some Prosecutors Say No

By Tim Welch

For prison inmates who are languishing in cells serving sentences for violent crimes they did not commit, a DNA test can be a harbinger of freedom.  That is, if they can get one.  State legislatures have begun to recognize the potential that DNA testing has for exonerating wrongfully-convicted prisoners.  Forty-six states now have laws that enable convicted prison inmates to request a DNA test on evidence related to the crimes they were convicted of in court.  But what sounds like an easy and effective way to reduce the number of wrongfully-convicted prisoners in the United States is meeting significant resistance from prosecutors.

Even though they are increasingly willing to allow DNA testing of an inmate, prosecutors are delaying these tests in some cases by years due to the scope of the applicable state laws.  In reality, DNA tests have exonerated hundreds of wrongfully-convicted people in the United States.  But many of the 46 state laws allowing this type of testing stipulate that the results must be able to prove the prisoners innocence.  Prosecutors will argue that for many types of crimes, simply not finding a DNA match to the inmate is not enough to establish innocence.  For example, in the event of a murder, the fact the blood collected from the scene does not match the perpetrator is not sufficient to prove that the perpetrator did not commit or aid in committing the murder.  This is especially true when a jury had already convicted the perpetrator on the basis of testimony and identification.

Big Brother Is Watching--FBI, States Expanding Forensic DNA Databases by Millions

 By Tim Welch

Last month, the FBI drastically changed its policy on whose DNA will be entered into and stored in the largest forensic DNA database in the world.  Previously, the FBI only collected DNA samples from convicts, i.e., people who have been declared guilty by a judge.  The FBI now plans to join 15 states in collecting DNA samples from people who have only been arrested or detained.  Law enforcement officials claim that including people in forensic DNA databases who have either been released without charges or declared not guilty in court will ultimately put more criminals in jail.  But the federal government's decision raises privacy issues as well.

Forensic DNA databases exist at the local, state, and federal level.  When a person is convicted of a crime, his or her DNA code is entered into a computer system, such as the Combined DNA Index System (CODIS), which allows investigators to compare biological specimens collected at crime scenes to DNA profiles of convicted criminals already stored in the database.  Even if no match is found, investigators can cross-check anonymous samples from different crime scenes to hopefully shed light upon unsolved crimes.  Law enforcement officials claim that their forensic DNA databases have helped convict thousands of criminals and have exonerated hundreds of innocent people who were wrongfully convicted.

Twins Foil DNA Forensic Test

By Tim Welch

On January 25, 2009, masked intruders stole about €5 million worth of jewelry and watches from an upscale department store in Berlin, Germany.   Surveillance cameras caught the crime on tape, and police found a glove containing identifiable DNA at the scene.   After the DNA was analyzed, the police were surprised to find that the DNA was linked to two men with criminal records, a pair of German twins identified as Hassan and Abbas O.   The twins were arrested on February 11, 2009.

Despite the DNA evidence, German police were forced to release Hassan and Abbas O. on March 18, 2009 because their DNA codes are virtually indistinguishable from each other using analysis methods accepted in German courts.   According to a Times Online report, "German law stipulates that each suspect must be individually proven guilty of a crime."   Since the DNA could not point to a specific suspect, German authorities were forced set the twins free.

Handheld Laboratories? Ability to Conduct "Instant DNA Tests," Could Be Available to Physicians, Crime Scene Investigators

  By Tim Welch

The ability to conduct DNA tests in the palm of your hand might sound like something out of a science fiction movie, but the technology could be available for widespread use sooner than you thought.  Research scientists at the University of Virginia are developing a device about the size of a microscope slide that could pave the way for handheld DNA tests that would produce results in minutes, perhaps eliminating the need for a central laboratory.  Such devices could be crucial to doctors in diagnosing infectious diseases in minutes rather than days, as well as to crime scene investigators in gathering forensic information on scene.  While handheld DNA tests would have many useful applications, they would also raise important questions.

If doctors were able to receive DNA test results in minutes, rather than wait days to hear back from a laboratory, their response time in diagnosing and treating infectious diseases would be shortened dramatically.  This would be extremely useful with diseases that worsen quickly when left untreated, such as meningitis.  In addition, a cheap and effective handheld DNA test could reduce the cost of treating patients with "personalized medicine," or a therapeutic regime based on a patient’s own genetic code.