DNA analysis: A futuristic fingerprint or something more?

April 19, 2013

Many states across the nation have passed laws requiring the collection DNA from those arrested for violent crimes, even before conviction for the crime. In Virginia, an individual arrested for a violent felony or for the attempt to commit such a crime must provide a saliva or tissue sample for DNA (deoxyribonucleic acid) analysis. The criminal charge itself is enough to trigger the requirement.

DNA samples are then stored in a DNA data bank by the state Department of Forensic Science. In some cases, the state provides the DNA samples to CODIS, which is a database of national scope maintained by the Federal Bureau of Investigation.

What happens to the sample if a jury later finds that the individual was not guilty of the charged crime? A clerk of the court notifies the Department of the outcome in the case. When a charge is dismissed or an individual is acquitted at trial, the Department then destroys the sample and all record of it.

In 2007, the Virginia Supreme Court found that taking a tissue sample of an arrestee for DNA analysis was similar to a fingerprint and thus did not violate the Fourth Amendment of the U.S. Constitution. Now a similar case from a Maryland court is pending before the highest court in the country.

Constitutionality of DNA collection before conviction: Maryland v. King case

In Maryland v. King, Alonzo King was arrested for an assault that involved a firearm. During the booking process, officials swabbed his cheek to take and completed a DNA analysis. Maryland law is similar to Virginia in that it requires saliva or tissue samples for anyone arrested for a crime of violence or burglary.

The DNA analysis linked King to an unsolved rape case. King was convicted of the rape; however, Maryland's highest court later overturned the conviction. The court found that the state violate the Fourth Amendment ban on unreasonable searches by taking the King's saliva for DNA analysis.

Opponents of the DNA collection laws argue the laws are an invasion of privacy and a way to short-circuit requirements that officials need to have reason to suspect an individual before completing a search. Supporters of the laws say that a DNA profile is similar to a fingerprint and does not disclose physical characteristics, propensities or medical conditions.

The court has until this summer to issue a written decision. If the action of the Chief Justice in allowing the state to continue DNA collection while the case is pending is any indicator, the court will uphold the constitutionality of DNA collection prior to conviction.

This case offers a look into how criminal law continues to evolve and change. If you are charged with a crime, it is important to consult with an experienced criminal defense attorney. A lawyer can ensure your rights are protected from charge to resolution and spot any possible defenses available.

Article provided by Weimer & Boyce Lawyers
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