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Tuesday, July 31, 2012

Encroachment on Presumption of Innocence? DNA evidence from arrestees

Adam Liptak's got a short piece in today's paper reporting on relief the Chief Justice is granting (qua circuit justice) to Maryland so that it can continue to collect DNA evidence from arrestees (of certain crimes). I love clearing cases and reduction of Type II errors probably more than the next guy but I have a sense this is yet another abuse of the presumption of innocence. In the piece, Liptak quotes the Maryland judge who thinks this intrusion can be justified b/c it's less intrusive than the searches recently upheld in Florence.

I'll have to think some more about it, but collecting DNA from arrestees seems quite different than the strip searches purportedly justified in Florence, that recent SCT case about strip searches prior to entry to jail. The latter can be understood (if not fully justified) as a preventive measure for contraband and dangerous weapons prior to immersion in a detention facility. The former is purely for solving cases. As a result, the former is likely not consistent with the kinds of purposes vouchsafed by the Court in Salerno as appropriate bases to limit pre-trial liberties. The latter is arguably tied to the reduction of criminality or risk to public safety of one sort or another.  CJ Roberts thinks there's a good chance that the Maryland high court's decision (in favor of the defendant challenger) will be overturned. I'm a good bit less certain and thus somewhat surprised by the relief Roberts gave to the enforcement officials here. This will be interesting to follow.

Posted by Administrators on July 31, 2012 at 02:55 PM in Constitutional thoughts, Criminal Law, Dan Markel | Permalink


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[presumption of innocence might factor in somehow ... to be careful ... but it isn't the first thing that comes to mind]

Posted by: Joe | Aug 1, 2012 2:50:15 PM

Fingerprints were referenced above but (with some cause) there is more concern about DNA, since it can provide much more information about a person than a fingerprint.

I also can't tell if the 19th Century quote cited that sounds like it covers things a whole lot less intimate than DNA would apply so literally that it would cover this as well. But, my concern there would be a level of privacy, not presumption of innocence specifically. Only taking DNA from those "charged," anyhow, partially addresses that concern as a random drug checkpoint might not.

Posted by: Joe | Aug 1, 2012 2:48:44 PM


The Bail Reform Act mandates DNA collection as a condition of pretrial release for federal defendants released on personal recognizance (see 18 USC 3142(b)). Indeed, compulsory DNA collection has quickly become quite broad - it is required for ANY federal defendant arrested for ANY charge, for example, and more than half the states mandate DNA collection from juveniles following adjudications of juvenile delinquency (my next piece is on suspicionless compulsory DNA collection from juveniles).

The compulsory-DNA-collection-from-arrestee caselaw is a contradictory mess. Some courts are with Larry Rosenthal and go all-in on the fingerprint analogy. I see a big difference between a two-dimensional fingerprint and the seizure and permanent storage of a suspect's biological sample (containing her entire genetic code) without any suspicion whatsoever that it will produce evidence of criminality. And it's not clear to me how much the subsequent use/protections against misuse of seized material have to do with the legality of the initial seizure itself. Finally the big feint that many courts are making is characterizing DNA collection as "for identification purposes only," not gathering evidence, insisting as they do that an individual's identity includes the things they have done in the past. This means they are not seeking evidence of prior wrongdoing, but are merely trying to identify the arrestee/defendant, and if learning that crime scene evidence from Des Moines or Staten Island matches the defendant's DNA, well, then that is only helping us accurately identify that person.

Daniel Kaye has also written extensively on compulsory DNA collection.

Thanks to Adam for the link to our piece. The ssrn version is available here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1336206.

Posted by: Kevin Lapp | Aug 1, 2012 9:08:30 AM

Orin, thanks. I suspect the Bishop quotation is more helpful to my position: it basically says that you can collect evidence in the vicinity having to do with the crime in question but it doesn't indicate a basis for taking whatever's there and using it as the springboard for fishing expedition that would allow a national repository of crimes to be solved.

I could see, fwiw, some attenuated chain of reasoning that says, look,if we connect the Def't to a whole bunch of open murders, then that would reveal propensity to commit murders and thus he should be detained pre-trial for public safety purposes. But that just opens you up to Jim's point, and the fact is the probable cause allowed for his arrest at T1 was not (necessarily) the same probable cause for crimes committed prior to T1.

Anyway, I might be well off-course, but I think there's a decent claim to be made that requiring DNA collection as a condition of release would likely run afoul of the Salerno/Stack criteria that typically limit what concerns may motivate pre-trial release.

Posted by: Dan Markel | Aug 1, 2012 8:58:41 AM

Jim, Dan, thanks for the explanation.

For what it's worth, I don't think the argument works. The rule that arrests permit searches incident to that arrest just to gather evidence is pretty ancient. See, e.g., 1 J. Bishop, Criminal Procedure §211, p. 127 (2d ed. 1872); (“The officer who arrests a man on a criminal charge should consider the nature of the charge; and, if he finds about the prisoner’s person, or otherwise in his possession, either goods or moneys which there is reason to believe are connected with the supposed crime as its fruits, or as the instruments with which it was committed, or as directly furnishing evidence relating to the transaction, he may take the same, and hold them to be disposed of as the court may direct.”) I don't think that rule has been thought to be in tension with the presumption of innocence, and I'm not sure why an extension of that rule would be, either. I think you have to take the presumption of innocence up a few level of generalities to see a tension, but at that level of generality there is tension between the PoI and lots of well established rules. That's my take, anyway.

Posted by: Orin Kerr | Aug 1, 2012 1:52:21 AM

Seems like good policy to me. How is it an invasion of pre-trial liberty? And if it is, it strikes me as so incremental over *being arrested*.

Posted by: WestLooper | Aug 1, 2012 1:13:21 AM

Adam, thanks for the link. It appears from that piece that some courts are conditioning pretrial release upon collection of DNA evidence. Very interesting. It seems like that might also be a bit hard to square with the Salerno criteria insofar as DNA collection from arrestees amounts to a fishing expedition for awesome evidence, rather than a consequence from an individualized inquiry. This will no doubt be another aspect of the project Eric and I are writing up on the use and abuse of pre-trial release conditions.
If anyone else knows of articles or other sources that are relevant to this project, please feel free to share them with me via email. Thanks!

Posted by: Dan Markel | Jul 31, 2012 11:07:35 PM

In case you're interested, Kevin Lapp (Loyola L.A.) and Ellen Joy Radice (Tennessee) discuss some of these issues in a recent essay in North Carolina's online supplement, "The Addendum. " See Kevin Lapp & Joy Radice, A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, 90 N.C. L. Rev. Add. 157(2012), available at http://www.nclawreview.org/documents/90/addendum/lapp&radice.pdf.

Posted by: Adam Zimmerman | Jul 31, 2012 10:31:15 PM

@Orin, JimAtLaw said it well. What triggered the reaction I had was the same set of concerns that motivated the oped Eric and I wrote. FWIW, I'm not entirely sure the PoI is understood so narrowly as you suggest but you might be correct. It's something I'm trying to get smart about over the coming months.

Posted by: Dan Markel | Jul 31, 2012 9:34:28 PM

Orin, I think perhaps his point is that if the defendant is forced to undergo additional searches or seizures beyond those required to immediately safeguard the officers and/or others at the time of arrest (e.g., searching for contraband entering a jail), then he is effectively suffering a penalty under the law without having been convicted of a crime.

If they should be allowed to collect and permanently catalogue DNA swabs and fingerprints on people who have not been convicted, they should be able to do that on people who have *NOT* been arrested as well, since those things do not serve an immediate term protective function and the interest in finding the unarrested perpetrators of unsolved crimes is just as high as it is in finding those who have been arrested in unrelated matters.

Posted by: JimAtLaw | Jul 31, 2012 7:43:42 PM


Can you elaborate on why you see the presumption of innocence as relevant to this case? The presumption of innocence is a burden placed on the government to obtain a criminal conviction before a factfinder. Thanks to it, the government must collect and show the evidence to overcome the presumption. But here the government is collecting evidence, not trying to obtain a criminal conviction before a factfinder. Why is the PoI "encroached on" here?

(To be clear, I'm not taking a position on the underlying Fourth Amendment issue; I'm just not sure I see the connection to the presumption of innocence.)

Posted by: Orin Kerr | Jul 31, 2012 5:10:34 PM

That's a good point, Larry. But maybe it shows how far we've already encroached on the PoI, and raises questions about what the baseline should be.

One might suggest that both fingerprints and dna swabs should be non-inventoried for investigation purposes, but only allowed in situations where identity is challenged/denied. In any event, this is something I need to mull over more. Larry Laudan's got a new draft that offers a typically provocative challenge to the PoI that I still need to read. Don't think it's up on SSRN yet but once it is, I will link.


Posted by: Dan Markel | Jul 31, 2012 5:05:55 PM

If any arrestee can be compelled to provide fingerprints that can be digitalized and placed in a comprehensive database for use in future investigations, it is difficult for me to understand why the inside of that arrestee's cheek cannot also be swabbed, with the resulting sample placed in a similar database -- at least as long as the subsequent use of the DNA data is as carefully controlled as the subsequent use of fingerprints.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jul 31, 2012 4:49:21 PM

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