Volume XVI, Issue IV
December 2002

AN UNREAL DREAM: THE IMPACT OF DNA TECHNOLOGY ON THE AMERICAN CRIMINAL JUSTICE SYSTEM

"Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime."
-then District Judge Learned Hand, 1923

In 1984, Ronald Cotton was arrested for the rape of two women. He was tried, convicted, and sentenced to life plus fifty-four years. In 1995, investigators matched the DNA found at the scene of both crimes with that of a different individual - a convicted felon in North Carolina. Cotton was cleared of all charges, and received a pardon of innocence from the Governor of North Carolina. He turned down the state's offer of $5,000 compensation - $500 for every year he spent in prison.

The Human Genome Project, officially begun in 1990, has heralded a period of unparalleled knowledge in the field of medicine. Identifying the genetic traits in individuals that lead to certain diseases has allowed researchers to manipulate "bad" genes to improve health. Other uses of genetic knowledge, such as Germ-Line therapy, are much more controversial. Still in its experimental phases, this therapy has the potential not just to alter an individual's genetic makeup, but to permanently alter the genetic disposition of an individual's progeny for generations to come. Germ-Line therapy has raised a host of informed consent issues, and the use of this therapy has been severely restricted in the United States. 

Genetic knowledge has had an equally revolutionary impact on the criminal justice system. It is now possible to identify particular genetic "markers" that individuals leave behind at crime scenes - in their hair, and in bodily fluids like blood and semen. These "markers" can be stored in databases and compared with samples submitted by convicted felons in response to mandatory DNA sampling laws. A "match" allows DNA forensic scientists to identify an individual as a suspect or virtually exclude an individual from suspicion. Forensic DNA technology thus has a great capacity to contribute to the criminal justice system's search for truth. But the sampling and storing of biological material for investigational purposes also raises a host of practical and legal concerns.

DNA forensic analysis began in the mid-1980s. Restriction Fragment Length Polymorphism (RFLP) analysis is currently the most commonly employed method of DNA analysis. In RFLP analysis, DNA is digested by an enzyme that cuts the DNA strand whenever it finds a particular sequence of the four organic bases. Because the length of sequences in humans vary, this results in fragments of various lengths. This allows DNA scientists to look for a "match" - more than one DNA fragment of the same length. The statistical probability of the "match" is then calculated by assessing the "random sample probability" - the likelihood that a randomly selected person from the general population would match the known sample. A particularly sophisticated DNA analysis technique known as STR (short tandem repeats) analysis has the capability to match individuals to a probability of 1:1015. Compared to the number of humans living on earth, this probability means that an individual with a given STR profile (unless that individual has an identical twin who is genetically identical) is theoretically unequivocally the person who left the DNA at the crime scene.

This level of certainty has drastically altered a justice system that is otherwise largely based on evidence of a circumstantial nature. The impact might be most felt on the appellate level. Because of the level of certainty offered by forensic DNA analysis, the decision whether or not to oppose a motion requesting postconviction relief may now rest on a new, more secure foundation of knowledge. But before an individual can seek post-conviction relief, one must seek and be granted access to post-conviction DNA testing. This is generally accomplished through one of three routes - the defendant can (1) bring a motion for a new trial based on newly discovered evidence; (2) bring a habeas petition; or (3) claim that he has a right to exculpatory evidence. 

Courts will generally not grant a motion for a new trial where some form of testing was available at trial but was not used by the defense. Seeking habeas relief is problematic as well, due to the general rule that newly discovered claims are not grounds for relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. The third option is generally based on drawing an analogy to Brady v. Maryland, in which the Supreme Court held that a defendant had a constitutional right to be informed of exculpatory evidence the state had access to during trial. To prevail under the reasoning in Brady, however, the defendant must successfully argue that the right to exculpatory evidence extends to potentially exculpatory evidence as well. Cases suggest that post-conviction testing is most often granted in situations where the identity of a single perpetrator was at issue, where the prosecution's evidence against the defendant was relatively weak (relying, for example, on only one eyewitness), or where the requested form of testing was not available at the time of the defendant's trial.

Generally, once exculpatory results are revealed, the court will conduct a motion in limine hearing on admissibility or will order a new trial. If the prosecution declines to re-try the case, the defendant is released. But exculpatory results do not always result in an immediate release from prison. For example, Roy Wayne Criner, convicted of rape, was initially denied a new trial after DNA results showed he was not the source of semen found in the victim. Despite the test results, the judge in the case reasoned that the defendant could have worn a condom. Criner was released two years later, when additional testing again revealed that Criner's DNA did not match that left at the scene. New York is one of the few states to address exculpatory evidence in its laws, providing a court with the authority to vacate a judgment when the DNA evidence is "of such a character as to create a probability that had such evidence been received a trial the verdict would have been more favorable to the defendant."

DNA forensic technology also raises the question of whether current statutes of limitations on filing appeals and collateral attacks on judgments are still relevant. In 33 states, inmates have only six months or less to file a motion based on new evidence. DNA samples can last indefinitely, however, well beyond the periods of time permitted for seeking relief from a conviction.

All fifty states have enacted laws requiring certain classes of convicted offenders to provide DNA samples to be placed in DNA databases. These statutes have been the subject of legal challenges on various grounds, including cruel and unusual punishment, equal protection, the free exercise of religion, and the Fifth Amendment's prohibition against self-incrimination. The majority of challenges have been based on the Fourth Amendment's prohibition against unreasonable searches and seizures, based on the fact that DNA sampling involves two intrusions: first, the initial extraction of blood, and second, the subsequent analysis of the sample. Courts have generally held that while obtaining and analyzing DNA is a search and seizure, it is reasonable, in light of a convicted individual's diminished privacy rights, the minimal intrusion of blood tests, and the legitimate governmental interest in the investigation and prosecution of unsolved and future acts of crime.

The majority of DNA sampling statutes apply to only certain sex offenders, or to all violent offenders. At least four states already require samples from anyone convicted of a felony. Louisiana's DNA sampling law is the first in the nation to dispatch with the need for a conviction, providing that "a person who is arrested for a felony sex offense or other specified offense…shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure."

Some have proposed an investigatory technique known as a "DNA line-up," which would provide police with limited authority to test the DNA of groups of people based on a "reasonable suspicion" standard of probability that each member of the group might be involved in a crime. Similar techniques have already been employed. One example occurred during the search for a serial rapist near Ann Arbor, Michigan. He had only been described by the victim as a six-foot tall "light skinned, black man." Men who did not appear to be linked to the rapes through any evidence were asked to provide blood samples for DNA analysis. If they refused, police obtained warrants to seize the samples. Some arrestees might welcome testing that would exonerate them, and an individual can consent to a sampling of his or her DNA (litigation supporting a due process right to DNA testing has not been successful, however). For the vast majority of individuals merely suspected of a crime, however, the extraction of DNA would likely be an unwelcome intrusion. And while DNA profiles are currently narrow enough in scope that they provide relatively little information about an individual's specific genetic make-up, future techniques and uses might reveal more about an individual than his identity. 

Other questions remain unanswered - can consent to the use of a DNA sample ever be withdrawn? Will the DNA of an individual who is exonerated of a crime be "deleted" from a database? In addition, more than 1.3 million samples in the federal DNA database system remain unanalyzed. This estimated six-year backlog means that many samples are not analyzed until after a donor's term of incarceration has been completed, thereby limiting the database's effectiveness in apprehending recidivist criminals.

DNA forensic technology has drastically altered the landscape of the criminal justice system - by aiding victims of violent crime, and by placing a human face on the statistical probability of error that has always existed in our criminal justice system. Genetic knowledge has a tremendous capacity to contribute to the investigation and prevention of violent crimes - as in the medical field, however, it might not be a panacea for all of society's ills. 

Notes

1. B.A., 1995, University of Washington, J.D., 2001, University of Washington School of Law. Member, Washington Bar, 2001-present. Ms. Grivas is currently employed as a Special Project Attorney with Preston Gates Ellis LLP. 

Footnotes/bibliographic information for this article available upon request. 

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