DNA Testing and Privacy: the Maryland v. King Argument in the Supreme Court

In yesterday’s post, I discussed Maryland v. King.  Those arguments,  heard at the Court on February 26, considered whether a state should be permitted to take a DNA sample from every person arrested (not convicted — arrested) for a felony.  I asked in my post that we put questions of  individual privacy aside, and instead ask whether such wide sampling would be a good idea from a crime-solving point of view.  (Some experts do not think so, as discussed in the post.)

Today, let’s put the question of privacy back into the equation, because that appears to be what the Justices will do.

In his recap of the Feb. 26 argument, Scotusblog’s Lyle Denniston tells us that the key points were posed by two of the Court’s conservative justices.  According to Denniston, Justice Samuel Alito clearly favored the idea that law enforcement should be able to take these samples.  DNA sampling “is the 21st century fingerprint” Alito said at least twice.  According to his way of thinking, there is no constitutional difference (in terms of the degree of intrusion on individual privacy) between taking a fingerprint and taking a DNA sample.

The other pole of the argument was taken up by conservative icon Justice Antonin Scalia.  When the lawyer for the state of Maryland used a long list of cases solved through DNA testing to support her argument in support of the law, Justice Scalia reacted forcefully.  According to the National Law Journal:  “Well, that’s really good!” Scalia exploded. “I’ll bet if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too. That proves absolutely nothing.”  In other words, the question isn’t whether the state’s action solves cases; some methods of solving cases are simply not allowed under the Constitution, even if they could be proven to work better than others.  The question is whether the Constitution — in this case, the Fourth Amendment’s prohibition of unreasonable searches — allows the state to do what it wants to do.

During Tuesday’s argument, Justice Alito commented that King could be “the most important criminal procedure case this Court has had in decades.”  That will depend on how the Court decides the case, which it will do sometime before the end of June.  But one thing we do know:  the debate between law enforcement’s desire to use all the tools it can to fight crime and the Constitution’s protections of the individual against state intrusion will go on.

With 300-plus Cases of DNA Exoneration, In How Many Is the Defendant Actually Innocent?

My  presentation Failed Evidence on January 31 at the University of Toledo College of Law — lively, well attended, and intense — featured a great question that I want to put to everyone.

One person in attendance was a man who is a police chief in Ohio.  He’s had a long and distinguished career; I had the great privilege of working with him some years ago, when I was a member of the University of Toledo faculty.    In one part of my presentation on Failed Evidence, I discussed the more than 300 cases since 1989 in which DNA identification has resulted in an exoneration.   In the Q & A after the talk, the chief asked a question about the 300-plus cases.  I’ll paraphrase: among those cases, he said, there would be some in which the DNA results disproved the conviction, but did not necessarily prove the defendant was not guilty.  This is because, he said, the absence of the defendant’s DNA may not support guilt, but it also does not necessarily prove innocence either.  (I’m hoping I understood his comment/question correctly and am conveying it clearly.) Was I prepared to admit that in at least some of the 300 cases, the defendants might indeed be guilty, even if the DNA had resulted in the defendant’s release and the dropping of charges?

I have had this question asked of me before, and heard it posed to others.  I gave my answer, but I would like very much to hear yours.  What do you think? Is the question correct, or is it based on certain assumptions that may not hold?  What would your answer to the question be?