DNA Swabbing and Differing Opinions

By Tanya Silverman

Photo by Kevin T. Murray, Jr.

Earlier this month, the Supreme Court voted unanimously that one does not have the right to patent human DNA.

However, a couple weeks prior, this same set of nine justices was far more adamantly divided over the legality of allowing DNA swabbing upon arrest.

In the 5-4 Maryland v. King case, the majority ruled that taking a DNA cheek swab, after arresting suspects and taking them to a station to be detained, is simply an additional step to the traditional criminal booking procedure of fingerprinting and photographing. The ruling also legalized the concept that the same DNA swab sample could then be used to examine cold cases (serious offenses that are not yet solved); if this evidence links up to that of an unresolved case, the match could be used to convict a criminal.

The minority dissent, written by Justice Scalia, did not take this ruling lightly. In its text, Scalia describes Maryland v. King as being a serious threat to our Fourth Amendment rights, in which people are meant “to be secure in their persons… against unreasonable searches and seizers” without probable cause. Even if unwarranted DNA swabbing and case cross-checking will work to solve more crimes, such a philosophy could justify taking unwarranted DNA samples from airplane passengers, automobile drivers or public school children. Scalia concludes that he hopes the ruling “will some day be repudiated.”

Photo courtesy of ynse.

From a forensic science perspective, Jay Henry, President of the American Society of Crime Laboratory Directors, finds the negative reaction to DNA swabbing to be ironic:

“For one hundred years, we could take fingerprint samples and nobody thought twice about it.”

He considers swabbing to be the next step in the criminal processing procedure, and predicts a “deployment of DNA instrumentation at booking stations” over the next three to five years.

Henry also points out that when forensic scientists test DNA, it is not solely to investigate criminals, but also to exonerate those who may be falsely accused. Following a crime, an initial pool of DNA samples is presented to the laboratory, and after the preliminary testing, these results will often entail dismissing about one third of the suspects to be exempt from further investigation.

James B. Jacobs, the Warren E. Burger Professor of Constitutional Law and the Courts at NYU, also believes that the DNA swabbing could work to free those who have been wrongly accused of serious crimes.

Jacobs stands with the majority decision as well, stating, ”I don’t think we’re worse off as a society for having people arrested for serious crimes having a DNA swab taken and then checked in addition to the fingerprint and photograph… It only increases the chances of a person who has committed a crime in the past being apprehended.”

When asked his opinion about why the Supreme Court majority decision was so close, Jacobs reflects that this DNA swabbing technique is “certainly limiting” of the Fourth Amendment. He acknowledges that Justice Scalia’s dissent is considerably “hard-hitting,” and is unsure of whether “the majority is able to answer all of his complaints on the constitutionaltiy of it. ”

Nonetheless, Professor Jacobs tells BTR that Justice Scalia’s dissent does not fully convince him to change his mind about Maryland v. King; to Jacobs, altering the standard criminal booking procedure by adding DNA swabbing is not particularly intrusive, as compared to the prior methods:

“I just think it’s another example of how evolving technology interacts with criminal procedure in the criminal justice system. This is history, we go forth with one technology to another; each new technology has to be adapted and responded to, and we have to find what its place is going to be in our law enforcement. I don’t believe that we can be frozen in time and fear each new technology.”

In addition to seeing the ruling as a progressive move, Jacobs shines light on the benefit of it being implemented to resolve “rapes, kidnappings or murders from years before where there was DNA evidence but no match.”

Even if a number of unsolved cases become resolved, and the wrongly convicted can be freed as innocent, such prospects have not convinced everyone it is right for authorities to hold the power over unwarranted DNA swabbing of anyone arrested. Some opponents view this procedure as a violation on an important personal right, in which citizens should reserve privacy, and protection, over their own DNA. This sacred internal genetic blueprint is on a different level from an external identifier like fingerprints, birthmarks, or tattoo.

However the ruling of Maryland v. King will play out, American citizens will continue to make and hear arguments on each side regarding the controversial issues that this case addresses. Down the road, it’s possible that its inherent legal consequences — whether it’s a massive surge or freeing false convicts, or an explosion of federal database DNA entries — will entail further volatile Supreme Court decisions.