by Derek Gilna
Add overly aggressive collection of DNA samples from often unwitting individuals to the list of questionable police tactics in New York City with which criminal defense attorneys and the general public must now deal. Operating under the radar until recently, the city has been quietly building “a vast, unregulated DNA database,” with some of its collection techniques now coming into question.
Although state and federal governments must follow defined protocols in the collection of DNA evidence that largely restrict collection to those individuals convicted or arrested for a serious crime, there are no comparable limitations in place regulating collection efforts by NYC. This lack of regulation and oversight is of grave concern to famed civil rights attorney and renowned DNA expert Barry Scheck, co-founder of the Innocence Project, who opined, “It always is extremely troubling when bureaucracies spiral out of control and start invading areas that the state legislature did not authorize, and which are impinging upon privacy concerns.”
While courts have consistently upheld the legality of collecting DNA samples from individuals convicted of a crime as well as most categories of arrestees, New York University School of Law professor Erin Murphy expressed concern about overreach by police and prosecutors who have no discernable guidelines to restrict them. According to Professor Murphy, “I think DNA is a powerful tool for law enforcement and crime solving. [But] the standards governing who has to give DNA, and what happens to that DNA once they’ve given it should really be very particularly determined in law—not at the whim of a prosecutor or a police investigator.”
Additionally, the collection techniques themselves are often troubling. In one particularly egregious case, a suspect who had been questioned by NYPD detectives for 13 hours while being pressured to give a sample eventually acquiesced, but a judge later excluded the DNA evidence after he learned that police had effectively held him “hostage” in order to obtain the sample.
The exponential increase in the number of DNA profiles being stored in the NYC database has been fueled in large part by the practice of collecting and storing DNA from every gun case. Similarly, DNA samples are taken and stored from practically every crime scene and suspect.
Even crime scene specialists and police lab employees have their DNA profile stored in the NYC database. There is one group that is exempt from having its members’ DNA profile in the searchable database—police officers. This is a glaring blind spot in the system since the purported purpose of the database is to “generate thousands of solid investigative leads a year” and “a major way [to] nab dangerous criminals.”
Regardless of one’s personal beliefs regarding police and the criminal justice system as a whole, statistically, more “solid investigative leads” and “dangerous criminals” would be nabbed with the inclusion of cops’ DNA in the NYC database. Apparently they do not want to be a potential suspect in every case in which unidentified DNA is run through the database. Welcome to the club—no one else does either.
Even a lawyer who represents police and is a contributing writer for a policing news website has his doubts about the propriety of collecting DNA, unless the individuals have been convicted of a crime. “I don’t trust them to do the right thing with it,” he said, referring to government agencies that collect and store DNA. “Are we now in this Orwellian future where everyone’s going to have a bar code? Your DNA should only be in a database if you’re convicted of a crime.”
Sources: www.thetrace.org, www.wnyc.org
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