Due Diligence’s Carmen Russell-Sluchansky talks with Karen Kruger, Attorney with Funk and Bolton:
The case has been called one of the most important ones that the Supreme Court has ruled on in decades, and Kruger agrees. The issue is as to whether this constitutes an invasion of privacy (which would violate the 4th Amendment). DNA evidence has often used to solve cases, but critics worry that as technology advances, giving the government access to DNA samples might have unintended consequences.
I think our notions of privacy evolve over time, and just Chief Justice Roberts brought up a very good point which is the point we also made in our law enforcement brief that we are bodies that shed DNA evidence all the time and it is left behind, and he gave the example of if I drink a glass of water, my DNA is left on that glass and no one would argue that the police couldn’t come to class and analyze the DNA. And so he asked one of the lawyers, actually it was the lawyer for Mr. Kane, how can people have a reasonable expectation of privacy in their DNA when we can help but leave it everywhere that we’ve been. And that was a fascinating perspective and I think something that people maybe had thought about as a corollary argument to the direct argument of how the DNA is actually taken in the rest situations that are created under the Maryland law.
It was an interesting point that was made – because you leave your DNA everywhere you have a lowered expectation of privacy – hey, it is there for the taking, right? But at the same time the way that they take it, they swab the mouth apparently, it is more invasive than, say, finger prints, which was a big question how it is related to fingerprints because it is for the identification, the DNA is for identification, just as fingerprints are. But as opposed to putting your finger on a pad, they are actually sticking something in your mouth. Is that not invasive?
There was a lot of discussion in the court about this and nobody actually said this but as I was listening to the argument I thought, well, there does seem to be something different about taking evidence from the outside of a person’s body as opposed to sticking something, even if it is a sort of cotton swab, sticking something in the person’s mouth. Does that seem different? And actually I think it was Justice Alito who seems to think that there really was no difference – that the swabbing of the inside of the cheek was such a minor physical intrusion that he didn’t seem to be troubled by that. And what is equally interesting and I read that in the state of Maryland brief is that the technology is advancing so rapidly, they just sort of stick a piece of adhesive tape on the back of your hand and pull it off and use the DNA from the back side of the adhesive tape. So, that brings us almost in the identical posture of the taking of finger print, there is in fact less manipulation of the individual’s body even with the swab or with the tape than there is grabbing and rolling each individual’s finger. So, if we want to get to that level of analysis, that is one way to look at it.
Is there potential for a slippery slope issue here, I mean if they can now take your DNA, why not your blood? If that was brought up, why not going to your home, if you are under arrest, you are in the police department, basically the argument that was made is that it was more or less the same thing – you are looking for evidence of other crimes, so why wouldn’t we get to the point where the police office could go to somebody’s home and look for that same evidence?
Because we go back to the reasonable expectation of privacy and if you remember the Chief Justice Roberts analysis the DNA analysis there is being shed, it is there. That puts us in a different analytical category than where a part of the reason you have a home is to create privacy for yourself. There is a certain level of privacy in your car. But it is not the same level of privacy as you have in your home. So, we have a continuum of privacy as between those items and things, and thoughts, and papers, and ideas that are kept in the home as opposed to maybe other end of the spectrum, are personal selves and identity that are out there exposed for the world every day. So, there is the continuum there that has to be considered.
There was the Chief Justice who raised that and that is an interesting question, of course it is not what we have here because the police didn’t take a sample that Mr. King had left voluntarily lying around. They did use an invasive procedure, it was quick, it involved a swab rather than a needle but it was still an invasive procedure. The court may confront that or other questions what happens to DNA that is left behind on a drinking glass or a coffee cup and is it a second search when you analyze the DNA for the chemical and biological information that it contains. But that is not what the court is being asked to do here because it is not the analysis that is the search, it is the actual reaching the swab into the human body.
What about the state interest? This was also brought up a bit and I do know that actually the part of this was a justice Breyer who was talking about the state interest in obviously solving crimes but on top of that there is the possibility that, and we’ve seen this before, obviously, the DNA has been used to exonerate a number of people who were behind bars for years for a crime that turned out that they didn’t commit, there could be those in jail right now where if possibly one of these random DNA samples may actually end up exonerating them. And therefore, there is obviously they are wrongfully accused, they have a certain right there too that this could possibly benefit them.
Certainly DNA profiling and the use of DNA to solve crimes and exonerate certainly gets more effective the more DNA profiles you build into the data base but everyone recognizes that there are limits to that and that the government can’t go around swabbing the inside of people’s cheeks. Even the state of Maryland recognizes that in this case. There are more interests at stake that just building the best possible set of DNA profiles. The argument in this case is not that Mr. King should have never been forced to give his DNA under any circumstances. He was convicted of a crime, and his lawyer explained to the court today that there would be no problem with someone who is convicted of a crime and sentenced to a certain time in state custody being forced to give a DNA sample.
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