On television, when DNA evidence is used in an innovative way to solve a cold case, the police are heralded as heroes. But in New Jersey, state police face fierce criticism for allegedly doing just that. The reason? According to a July public records lawsuit, law enforcement used blood taken from an infant to link the child’s father to a 1996 sexual assault case. The sample was originally taken about nine years ago during a mandatory screening for genetic diseases.
The lawsuit, filed by the New Jersey Monitor and the Office of the Public Defender, details how law enforcement subpoenaed a laboratory to get the DNA sample and aims to determine how common this practice is. According to the lawsuit, parents may not be aware that these samples will be retained, let alone that they may be used in this way.
By pursuing a subpoena rather than a warrant — either to avoid legal scrutiny by the courts or because it did not have probable cause to seek a warrant — the New Jersey State Police committed an unforced public relations error.
Privacy activists and civil libertarians are alarmed, and with good reason. Obtaining medical samples without notice for a criminal investigation into a relative is, to say the least, uncharted constitutional waters. Although using old medical samples may offer tremendous potential for solving cold cases, prosecutors and law enforcement need to first build public trust and take measures to ensure the practice is limited, transparent, regulated and subject to strict oversight so that the public can decide to broaden or restrict its use based on how things go.
By pursuing a subpoena rather than a warrant — either to avoid legal scrutiny by the courts or because it did not have probable cause to seek a warrant — the New Jersey State Police committed an unforced public relations error. Not to mention, the action may have violated the Fourth Amendment, which protects citizens from unreasonable (warrantless) search and seizure.
To be sure, familial searching using DNA and genetic genealogy holds great potential for advancing public safety. For example, the DNA evidence used to implicate the BTK serial killer in Wichita, Kansas, came from a pap smear taken from his daughter without her knowledge. However, that evidence was obtained through a warrant issued by a judge who carefully weighed privacy concerns against the evidence and determined there was probable cause. Both the Golden State Killer and the Grim Sleeper, two serial killers in California, were implicated through familial searching of DNA evidence. But In both cases, the evidence was obtained from a crime scene, not an unrelated medical procedure, and law enforcement sought permission before proceeding.
The way that familial DNA searches work is straightforward.
The siblings, parents and children of a suspect will share about half of the suspect’s genetic fingerprints. So a 50% match means that a sample almost certainly came from a first-degree relative of whoever left the evidence, providing an important lead for investigators. Relatives further removed, however, including half-siblings, grandparents, cousins, aunts and uncles, will share lower percentages of a suspect’s markers. This is where the analysis gets more imprecise and can yield a large number of partial matches, most of which are in no way connected to the alleged perpetrator.
Familial searching through DNA has proceeded cautiously. It was first used in the U.K. in 2003 in two high-profile death investigations, one of them the brutal rape and murder of an elderly widow. In both cases, familial DNA searching produced the suspects, who were later convicted. In 2008, California authorized the limited use of the technique, and Colorado soon followed.
Currently, at least 19 states are cautiously moving forward with transparency, legal scrutiny and close guidance from DNA analysis experts in the federal government. Privacy advocates have been sounding the alarm of the potential for familial searching to become a slippery slope, but because its use has so far been limited to stalled investigations of the most serious crimes, and subject to oversight by both the public and the courts, it has avoided the type of police overreach that privacy advocates most fear.
In the wake of stop-and-frisk, broken windows policing, ubiquitous surveillance cameras and the Patriot Act, much of the public already feels that we are living in a surveillance state. Concerns are palpable and low-income communities of color, which already bear the burden of frequent unwelcome contact with police, are the most likely to be disproportionately targeted with the use of new DNA searches. Privacy advocates play an important role by insisting that the interests of law enforcement and public safety must be balanced against our reasonable expectations of privacy and a life free from intrusive government scrutiny.
In the wake of stop-and-frisk, broken windows policing, ubiquitous surveillance cameras and the Patriot Act, much of the public already feels that we are living in a surveillance state.
We all expect — and are constitutionally guaranteed — bodily autonomy. The notion that our own cells and tissues could be used against us when we seek medical care is unseemly, to say the least. That they could be used against family members after a routine medical procedure goes even further down a path that most citizens are wary of. What makes the New Jersey matter even more fraught is that the blood samples were taken from all infants by law. Are we really surprised that this has undermined public trust in the police?
A reasonable middle ground is possible. But the process of finding it must begin with exposure of these practices to the full light of day, followed by public hearings that involve forensic scientists, privacy advocates, legal experts and law enforcement, all of who have a vested interest in public safety. This would also allow time for the voices of private citizens to be heard by their elected officials.
As is evident in other uses of familial DNA, we can craft a set of protocols and regulations to govern practices like the ones undertaken by the New Jersey State Police. Its use can be limited to the most urgent public safety concerns, when other investigative leads have been exhausted, and with privacy safeguards and guarantees against further snooping by law enforcement.
The alternative, if police continue to quietly sidestep public oversight, is that activists may convince elected officials to pass laws that prohibit investigative use of medical samples or that order their outright destruction following the completion of medical tests.
This would be an enormous blow to medical research and eliminate the potential of further use of these samples for diagnoses and treatments that may become available in the future. Simply put, your stored medical samples could one day save your life. But it’s also reasonable to ask that they not be used in ways that you haven’t consented to and that implicate your loved ones against your will. Whatever happens with these samples, it is the public that should decide.