Should Biological Evidence or DNA Be Retained by Forensic Science Laboratories after Profiling? No,except under Narrow Legislatively-Stipulated Conditions

Taylor B. , “Storing DNA Samples of Non-convicted Persons & the Debate over DNA Database Expansion,” T. M. Cooley Law Review 20 (2001): 509–545, at 513, n. 22; P. L. 103–322, subtitle C, Section 210304, the DNA Identification Act of 1994, codified at 42 U.S.C. § 14132 (2005), authorized the FBI to create an index (database) of DNA identification records from convicted offenders, crime scene evidence, and unidentified human remains. This index is called “CODIS,” for Combined DNA Indexing System. CODIS consists of local (LDIS), state (SDIS) and national (NDIS) databases.

“Specimen” in this paper means a biological specimen, such as a blood stain or a buccal swab from which a DNA specimen can be prepared, or the DNA specimen itself.

“Phenotype” in a broad sense refers to a measurable or observable characteristic that is the result of gene expression. Physical traits such as blue eyes, or chronic health conditions such as diabetes, are examples of phenotypes.

DNA data banks authorized and maintained by localities, states, and the FBI for law enforcement purposes contain, for each individual, his/her genotype at thirteen regions (loci) of DNA called the “CODIS core loci.” A “genotype” is a person's type at one specific DNA region (locus). A “profile” is a list of a person's genotypes at a series of loci. These thirteen loci consist of DNA variation in a form called “variable numbers of tandem repeats” or VNTR. As far as anyone knows, these VNTRs are useful only for identifying a person as that person (like a classical fingerprint). The thirteen-locus profiles that are in the databanks cannot themselves be used to extract additional information about a person. Additional information about a person might be extracted from the DNA specimen, however. In general, and for purposes of this discussion, the distinction between a specimen and a DNA profile is important. DNA profiles (essentially a series of numbers useful only for identification) are databanked. Specimens may be retained, but are not, strictly speaking, databanked.

The International HapMap Consortium, “A Haplotype Map of the Human Genome,” Nature 437, no. 7063 (2005): 1299–1320; and see Goldstein D. B. and Cavalleri G. L. , Commentary, “Understanding Human Diversity,” Nature 437, no. 7063 (2005): 1241–2; Kotulak R. , “Finding Root of Disease in Reach,” Chicago Tribune, October 27, 2005; Associated Press, “Finding Genes for Common Illnesses,” Wall Street Journal, October 27, 2005.

See, e.g., Fodor S. A. , “Massively Parallel Genomics,” Science 277 (1997): 393–395; Debouck C. and Goodfellow P. N. , “DNA Micro-arrays in Drug Discovery and Development,” Nature Genetics 21, Supplement 1 (1999): 48–50; DeRisi J. L. and Iyer V. R. , “Genomics and Array Technology,” Current Opinions in Oncology 11, no. 1 (1999): 76–9; DeRisi J. L. Iyer V. R. and Brown P. O. , “Exploring the Metabolic and Genetic Control of Gene Expression on a Genomic Scale,” Science 278 (1997): 680; Lye B. , “High-tech Keys to Future Cures – Microarray Chips will Point the Way to Crucial Treatment,” Chicago Tribune, October 9, 2005.

See The Encode Project: Encyclopedia of DNA Elements, National Human Genome Institute, National Institutes of Health, at <http://www.genome.gov/10005107> (last visited February 14, 2006).

Kotkin M. and Ballantyne J. , “Forensic Biometrics: The Determination of Individual Physical Characteristics by DNA Typing,” Proc. 54th Meeting, American Academy of Forensic Sciences, February, 2002, Atlanta GA, Abstract B80.

Axelrad S. , “Survey of State DNA Database Statutes” (as of July 1, 2005) at <http://www.aslme.org/> (last visited February 14, 2006).

Conn. Gen. Stat. Ann. 54–102i; Ga. Code Ann. 24-4-62; Va. Code Ann. 19.2–310.4.

Axelrod S. , supra note 9.

Id. This tally does not include New Hampshire. The meaning of that statute was not sufficiently clear to include in either category.

Alaska, California, Florida, Michigan, Nebraska, New York, Texas, Vermont and Wisconsin. Alaska Stat. § 44.41.035; Cal. Penal Code § 297; Fla. Stat. Ann. § 943.325; Mich. Comp. Laws Ann. § 28.176; Neb. Rev. Stat. § 29–4105; N.Y. Exec. Law § 995–c; Vt. Stat. Ann. 20 §§ 1938, 1940; Wis. Stat. Ann. § 165.77

Wisconsin and Vermont. Statutes, supra note 13; 42 U.S.C. 14132 (a)(1)(C). (“[S]amples that are voluntarily submitted solely for elimination purposes shall not be included in the National DNA Index System.”)

Cal. Penal Code §297 (effective January, 2009); Tex. Gov't Code Ann. §§ 411.146, 411.149, 411.1471; Va. Code Ann. § 19.2–310.2:1; La. Rev. Stat. Ann. § 15:609.

42 U.S.C. 14132 (a) (2005).

Title X of P.L. 109–162 (2006), codified at various sections of 42 U.S.C. 14132 et seq.

“Safir wants DNA Samples from all NYC Arrests,” Associated Press, December 15, 1998; Chapman S. , “Fighting Crime with DNA,” Chicago Tribune, October 9, 2005.

See supra note 17.

See supra note 16.

Hibbert M. , “DNA Databanks: Law Enforcement's Greatest Surveillance Tool?” Wake Forest Law Review 34 (1999): 767–825; ACLU Letter to Senators of the Judiciary Committee Expressing Concerns about S. 1700, the “Advancing Justice Through DNA Technology Act of 2003” (which became P.L. 108–405) June 3, 2004; Yohnka E. C. , “Collection of DNA in Crimes Must Have Limits,” Letter to Editor, Chicago Tribune, October 19, 2005; see also Simoncelli T. and Steinhardt B. , “California's Proposition 69: Dangerous Precedent for Criminal DNA Databases,” Journal of Law, Medicine & Ethics 33 (2005): 279–293; Reprinted in Journal of Law, Medicine & Ethics 34 (2006): 199–213.

CNN Report: “Daughter of BTK Suspect Alerted Police. 59-year-old Kansan Accused of Killing 10,” Sunday, February 27, 2005; Barrow A. , “Sex Attacker Caught by ‘Family DNA,’” September 19, 2005, posted on a listserv available at <http://www.dnapolicy.net/> (last visited February 21, 2006).

See website of the National Conference of State Legislatures, at <http://www.ncsl.org/programs/health/genetics/prt.htm> (last visited February 14, 2006).

P.L. 104–191, 110 Stat. 1998 (1996).

45 C.F.R. 164.512(f)(1)(i),(ii).

45 C.F.R. 164.512(f)(2))(ii).

N.J.S.A. 10:5–44; 16 Del. Laws, c.12 §1221.