California’s DNA Law Challenged

(Oct. 13) - Credited with revolutionizing
police work, DNA has become the gold
standard in evidence. But are ethical questions
and procedural miscues taking the
luster from law enforcement’s favorite new
weapon?
Since its discovery as an identification
method in 1984 by Britain’s Sir Alec Jeffreys,
DNA has been used to solve thousands
of crimes. Every week, it seems,
decades-old mysteries are brought to resolution
as authorities positively match the
chromosomal sequence of suspects with
DNA traces left at crime scenes.
“DNA is the greatest crime-fighting tool
of this century,” said Jill Spriggs, the chief
of California’s Bureau of Forensic Services.
With more than 1.3 million samples in its
database, California has the largest library
of DNA of any U.S. state, and, according to
Spriggs, it is growing at a rate of 25,000-
30,000 samples per month. The database
turns up roughly 300 genetic matches per
month, Spriggs said, some of which are instrumental
in solving crimes.
Thanks to the passage of Proposition 69
in 2004, California now mandates the collection
of DNA from anyone arrested in
connection with a felony — regardless of
whether that person is later charged with a
crime.
“I’m not sure the voters understood that
they were empowering the police to take
DNA from innocent people,” said Peter
Meier, an attorney at Paul, Hastings, Janofsky
& Walker, a San Francisco law firm that
has partnered with the American Civil Liberties
Union in a lawsuit against the state.
One of Meier’s clients is Elizabeth
Haskell, who was arrested during a 2007
anti-war rally in San Francisco. Suspected
of helping free a fellow protester from police
custody, Haskell was taken into custody.
She said police then gave her a choice:
either submit a DNA sample, or face the
prospect of prolonged incarceration and
further charges. Haskell gave the sample,
but no charges were ever filed against her.
Meier wants the court to restrict
California’s DNA collection mandate so
that it only applies to convicted felons. He
cites the Fourth Amendment, which protects
against unreasonable searches and
seizures.
“The way it stands, even if you’re innocent
you can have your DNA taken by the
government and retained indefinitely,”
Meir said. “Our suit is not meant to interfere
with fighting crime by using DNA. It’s
meant to ensure that potentially innocent
individuals do not have their rights
abused.”
Spriggs contends it is easy for those who
are never charged with a crime to be removed
from the database, and is quick to
point out that DNA in itself does not prove
guilt or innocence. “It’s the jury that convicts,”
she said, “not DNA.”
That may be true, but the growing reliance
on DNA in the modern-day courtroom
is what has some people worried.
A co-founder of Nucleix, an Israeli company
that specializes in DNA analysis and
authentication, Adam Wasserstrom believes
that while genetic databases will continue
to play an integral role in fighting
crime, as it stands, DNA evidence is potentially
misleading.
“By far, DNA is considered the number
one evidence in proving guilt. But you can
easily create fake DNA evidence,” Wasserstrom
said. “You can fake blood, semen or
saliva samples, and thoroughly engineer a
crime scene.”
Along with Nucleix co-founders Elon
Ganor and Dan Frumkin, Wasserstrom recently
did just that.
“We took the blood of a female, extracted
DNA from it by a simple blood fractionation
protocol, and added to it fake DNA of a
male. We sent this blood sample to a forensic
lab and the DNA profile they obtained
from it was identical to that of the male,”
Wasserstrom said.
While Nucleix has just developed a lab
procedure that aims to reliably authenticate
DNA evidence, until a set of procedural
standards is put in place to ensure that genetic
information is not simply being manufactured,
Wasserstrom believes DNA
should be viewed with some skepticism.
Meanwhile DNA databases continue to
grow worldwide. The United States now
has an electronic library of more than 5
million samples. In the United Kingdom,
where DNA is extracted from all individuals
taken into custody by police, 5 percent
of the country’s residents have given samples.
But a milestone with even greater ethical
implications
is now in the making as the United Arab
Emirates embarks on a program that requires
each and every citizen to provide a
DNA sample over the next 12 months