DNA Testing: Contrasting the Law and Genealogy

The genealogy community has been inundated with "information" about DNA testing. Several large DNA companies have had huge advertising and promotional activities and millions of people including those interested in family history have become interested enough in DNA testing to buy a kit and take the test. During the recent past, I have had a number of questions posed to me about the reliability of DNA testing in a genealogical context. These questions increasingly come from experienced genealogists whose DNA testing results seem contrary to their extensive paper research. This is particularly true when the DNA test results show small percentages of very surprising ethnicities.

In addition, there have been news articles recently highlighting old high profile criminal cold cases that have been resolved using DNA evidence obtained from the genealogical DNA testing companies. See "Golden State Killer: DNA links ex-officer to California cold cases." Quoting from another news article about the California case entitled, "A look at DNA testing that ID'd the suspected Golden State Killer."

The Sacramento County district attorney's office said Thursday DNA from one of the crime scenes was checked against genetic profiles from genealogical websites that collect DNA samples to help people learn about their family backgrounds.

Authorities zeroed in on DeAngelo after determining one of his relatives whose genetic information was on the site was a familial match for the DNA from the crime scene. 

They then set up surveillance at DeAngelo's home in Citrus Heights, California, just outside Sacramento and collected two "discarded DNA samples" from him. One didn't contain enough DNA but the other tied him to the DNA evidence. 

Authorities did not identify the DNA websites that were used.

It is clear that DNA testing, even when done specifically for genealogical purposes, will have an impact on many other aspects of our society including criminal investigations. There is a considerable amount of online discussion about the use of DNA testing that goes far beyond the genealogical community. For example, the FindLaw.com website has a section entitled, "How DNA Evidence Works." Here is a quote from a section of the article about the accuracy of DNA evidence.

Accuracy of DNA Evidence 

Assuming that investigators properly collect and handle biological evidence and that the forensic scientists employ accepted methods and conduct the analysis correctly, DNA evidence is extremely accurate. The chances of one individuals DNA profile matching another persons are extremely small -- about one in a billion by some estimates (but there is quite a bit of debate about this). 

Compared to fingerprinting or eyewitness testimony, which both have inherent flaws and inaccuracies, DNA evidence is a highly effective way to match a suspect to biological samples collected during a criminal investigation. 

Because of its accuracy, criminal lawyers increasingly rely on DNA evidence to prove a defendants guilt or innocence. DNA evidence has also exonerated people through postconviction analysis of biological samples. Since DNA analysis didn't exist until recently, a reexamination of evidence collected during older investigations can reveal that the DNA profile of the person convicted of the crime does not match the DNA profile from biological samples collected at crime scenes.

The article points out that currently, laboratories use tests based on the polymerase chain reaction (PCR) method, which allows for testing on very small amounts of DNA from biological samples.

Many of the online articles interject privacy issues into the DNA discussions. In the legal community, raising the issue of DNA testing and privacy is what is commonly called a "red herring" or an argument that is used to divert attention from the real problem or matter at hand. The legal issue is referred to as "a reasonable expectation of privacy." Here is a quote explaining this issue from the Cornell Law School, Legal Information Insitute entitled, "Expectation of Privacy."

The Reasonable Expectation of Privacy Test 

In Katz, Jutsice Harlan created the Reasonable Expectation of Privacy Test in his concurring opinion. Although it was not formulated by the majority, this test has been the main takeaway of the case. Justice Harlan created a two-part test:

1. an individual has exhibited an actual (subjective) expectation of privacy
2. the expectation is one that society is prepared to recognize as reasonable

If both of these requirements have been met, and the government has taken an action which violates this "expectation," then the government's action has violated the individual's Fourth Amendment rights.

The case referred to is Katz v. United States, 389 U.S. 347 (1967). The issue of using DNA material in the conduct of an arrest before charging or conviction was decided by the U.S. Supreme Court in the case of Maryland v. King, 569 U.S. ____ (2013). Here is a summary of that case from Justia.com:

Justia Opinion Summary

After his arrest on first- and second-degree assault charges, King was processed through a Wicomico County, Maryland, facility, where personnel used a cheek swab to take a DNA sample pursuant to the Maryland DNA Collection Act (Act), which authorizes officers to collect DNA samples from persons charged with violent crimes. A sample may not be added to a database before an individual is arraigned, and it must be destroyed if he is not convicted. Only identity information may be added to the database. King’s swab was matched to an unsolved 2003 rape. He unsuccessfully moved to suppress the DNA match. The Maryland Court of Appeals set aside his conviction, finding portions of the Act authorizing DNA collection from felony arrestees unconstitutional. The Supreme Court reversed. Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment when officers make an arrest supported by probable cause to hold and bring the suspect to the station to be detained in custody, for a serious offense. DNA testing involves minimal intrusion that may significantly improve both the criminal justice system and police investigative practices; it is quick and painless and requires no intrusion beneath the skin. When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving interests in properly identifying who has been arrested, ensuring that the custody of an arrestee does not create inordinate risks for staff, for the existing detainee population, and for a new detainee, and in ensuring that persons accused of crimes are available for trials. Identifying an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned. The Court noted that the test does not reveal an arrestee’s genetic traits and is unlikely to reveal any private medical information.

Hmm. The DNA testing done by genealogy companies is certainly "with consent." You have to buy the DNA testing kit and voluntarily send the kit to the company. The key here with genealogical testing is consent. The entire issue of privacy becomes irrelevant when you give consent. By the way, the same arguments occurred back when fingerprinting and photographs were being required for employment and other activities.

More on this subject to come.