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Research & Grants

DNA Fingerprinting and Civil Liberties Project

Aims of the Project

The Significance of DNA to Forensic Investigations since September 11, 2001

History of Forensic Identity Testing

First publicly recognized use of DNA profiling in forensics

Admissibility of and Challenges to Forensic DNA Evidence in the Courts

Compiling DNA Databases: More Than Just Forensics

Forensic DNA Databases

The Current Situation

Why DNA Fingerprinting Poses Different Ethical/Social Issues from Regular Fingerprinting

National Commission on the Future of DNA Evidence: Accomplishments and Issues Left Unexplored

Ethical Issues that Need to be Explored Research Methods

Literature Cited

The Current Situation

All 50 states require that DNA be taken from some types of offenders. As of March 2002, 39 were contributing data to the FBI's Combined DNA Index System (CODIS), a stratified database of local, state, and national DNA profiles, which permits a national search for offenders and also matches unidentified DNA found at crime scenes. CODIS also identifies missing persons and DNA from mass disasters. The state level of CODIS is the National DNA Index System (NDIS). As of May 2002, there were 837,150 computer-searchable profiles on convicted offenders, and 31,140 from unsolved crime scenes. CODIS is growing rapidly, with Myriad Genetics (Utah) and Cellmark Diagnostics (Maryland) doing most of the profiling. For thirteen short tandem repeats (STRs) the cost is $50-100 per profile; profiling DNA from crime scenes without suspects is considerably more expensive, sometimes running into the thousands of dollars. DNA profiles have aided in identification of 4,179 offenders in 32 states. This likely represents a tiny fraction of the potential investigative potential of the national DNA database: the United Kingdom (with a fifth of the population of the United States), which developed a national database earlier than the United States, claims to have 700-800 cold hits per week - exceeding the total hits in the history of the U.S. program every two months. In addition, 667 unidentified crime scenes in the U.S. have been linked with other crime scenes. Remains of over 1200 missing persons have been identified from the World Trade Center attack on 9/11/01.

The American Civil Liberties Union has assisted eleven legal challenges to DNA fingerprinting laws, as "unreasonable search and seizure" forbidden by the Fourth Amendment to the U.S. Constitution. All have failed. Courts have ruled that DNA fingerprinting is a "reasonable" search and seizure or that there is a compelling public interest.

The National Commission on the Future of DNA Evidence outlined the technological future of DNA forensics in considerable detail, but its working group report devotes only three pages to ELSI issues (National Institute of Justice, The Future of Forensic DNA Testing: Predictions of the Research and Development Working Group, U.S. Department of Justice, 2002). A full final report has not yet been issued. Individual states have widely varying laws as to who should have DNA taken, ranging from only those convicted of certain specified sex offenses to all arrestees, even if never charged. States also vary as to requirements for how long the DNA should be kept.

Forensic DNA laboratories have been established in several countries, including Belgium, Canada, Denmark, Finland, France, Hong Kong, Italy, The Netherlands, Norway, Spain, Switzerland, and the United Kingdom. Such labs are being established in Chile, Colombia, Croatia, Cyprus, the Czech Republic, Estonia, Hungary, Iceland, Jordan, Malaysia, Poland, Portugal, Singapore, Slovakia, Sweden, and Thailand.

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Why DNA Fingerprinting Poses Different Ethical/Social Issues from Regular Fingerprinting

When fingerprinting was originally introduced in the 1890s, it aroused no opposition and was not seen as a threat to civil liberties even if kept on permanent file after an arrest (Cole, 2001). So-called "DNA fingerprinting," however, differs in important respects from regular fingerprinting.

1) The sample of blood or saliva can provide information about whether the person has a genetic disorder or a predisposition to common disease, such as heart disease.

2) In the future, the sample may be able to offer predictive information about predispositions to addiction or other behavioral traits that may be useful in police profiling, but may also be stigmatizing for the individual concerned.

3) Unlike regular fingerprints, DNA samples can be used in research. Thus far, state laws permit such research only for purposes of improving methods of DNA identification, but there may be pressure to permit research for other purposes, especially on genetics and behavior.

4) Unlike regular fingerprints, DNA samples could, as the science becomes more exact, allow racial profiling.

5) Unlike regular fingerprints, which differ even between identical twins, DNA samples can point to other family members. "Partial profile matches" between DNA found at crime scenes and DNA in a forensic database can, in certain instances, implicate a close relative of the donor of the "partial match" profile.

6) DNA samples - if accessible to institutional third parties, such as employers, insurers, schools, and adoption agencies - could lead to refusals of employment, insurance, etc. Even the knowledge by third parties that someone has a sample in a forensic DNA database (although access to the sample may be forbidden) could lead to such refusals.

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National Commission on the Future of DNA Evidence: Accomplishments and Issues Left Unexplored

The one national effort to grapple with the use of DNA in the criminal justice system was the National Commission on the Future of DNA Evidence. The Commission was created by then Attorney General Janet Reno in 1998, in part in response to a spate of exonerations of wrongfully convicted individuals, to address five areas in the use of DNA evidence in the criminal justice system, as laid out by its Executive Director, Christopher Asplen:

"(1) The use of DNA in post-conviction relief cases, (2) legal concerns including Daubert challenges and the scope of discovery in DNA cases, (3) criteria for training and technical assistance for criminal justice professionals involved in the identification, collection, and preservation of DNA evidence at the crime scene, (4) funding for essential laboratory capabilities in the face of emerging technologies, and (5) the impact of future technological developments on the use of DNA in the criminal justice system." (opening meeting of the Commission, http://www.ojp.usdoj.gov/nij/dna/frstmtg.htm).

The Commission provided a forum for alternative views on the use of DNA evidence - Including, for example, such wide-ranging alternatives as Barry Steinhardt of the ACLU and then NYC Police Commissioner Howard Safir. The Commission also co-sponsored, with the Kennedy School of Government at Harvard University, the November 2000 conference on "DNA and the Criminal Justice System" (chaired by David Lazer), which produced the forthcoming volume entitled The Technology of Justice: DNA and the Criminal Justice System. The conference is archived at www.dnapolicy.net; the draft manuscript of the volume is available at www.ksg.harvard.edu/dnabook.

The National Commission ceased to exist in September 2001; however, on many dimensions it left much work to be done. In particular, what it accomplished was (1) creating a record of testimony laying out alternative views on how DNA should be used in the criminal justice system; and (2) development of an assessment of models for the application of DNA evidence post conviction (U.S. Department of Justice, 1996). It was less successful at creating a synthesis of usable alternative models for managing ethical challenges surrounding the development of DNA databases (issuing no reports on this). It also did not provide a set of informational resources beyond the testimony it collected to ground debate on these issues. An example: while it collected testimony from the director of the forensics program of Virginia, Paul Ferrara, that most of the hits from the Virginia database were from cases where the individual had committed only a property crime (thus supporting an expansion of the criteria for inclusion in the database nationally), it did not sponsor a more rigorous examination of these data.

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Ethical Issues that Need to be Explored

The following ethical and social issues have not yet received adequate formal analysis. The specific goal of this project is to examine them, along with such other issues as may arise in the course of the project.

A. Inclusion and Retention of Information

1. Inclusion in forensic databanks. States vary widely in whom they include. Some states include only sex offenders; others include all persons charged with felonies. Some law enforcement officials would like to include all arrestees - even if they are not subsequently charged - and keep their DNA on permanent file, as is done In the United Kingdom, on grounds that people who are arrested are likely either to have already committed another crime or will in the future commit a crime. The latter approach would follow the model of traditional fingerprinting.

2. When does a tissue collection or databank become a potential forensic database? Currently the Armed Forces DNA Identification Laboratory (AFDIL) stores dried blood spot cards from over one million enlisted and commissioned personnel. While DNA samples are not ordinarily extracted from these stored cards, unless needed to identify military casualties, under certain conditions authorization could permit forensic profiling of these stored samples for criminal investigations. Similarly, newborn blood spot cards could provide an additional source of DNA profiles for mass population screening. All tissue banks are potential DNA databases. How should forensic uses of samples in these tissue banks be regulated and monitored?

3. Sample retention. Should entire samples be retained, or only the identification profiles derived from them? At present, all states are retaining entire DNA samples, as opposed to retaining only the identification profile. Retention of entire samples has the advantage of making the DNA available for additional future analysis using new and superior technologies. It has the disadvantage of holding "files" that may predict health and may be detrimental to future employment, insurance, and other goods for persons whose DNA is in the bank, long after they have been acquitted, released, or paroled, if privacy protections should fail. The identification profile alone (thirteen short tandem repeats that distinguish this person from others) cannot be related to health, because the loci employed are 4-base pair DNA repeats that do not represent functional genes.

4. Length of retention of information. This becomes an issue if charges are dismissed, or an individual is acquitted or completes a prison or probation term, or someone charged or convicted as a juvenile becomes an adult. Since individuals can request that a record be expunged in some circumstances or after a period of time, should they be allowed to request that a DNA identification profile or sample be destroyed?

B. Privacy and Justice

5. Access to forensic DNA databases. Who should have access and under what circumstances? Who should decide who has access? Should there be special monitoring, and if so, by whom? Should representatives of prisoners and former prisoners have a voice?

6. "Partial matches" that may identify an offender through relatives. For example, a "low-stringency" database search for one matching allele at each of the thirteen loci could potentially identify a father or son of an offender. What will this search strategy do to family ties? Is this an unwarranted invasion of family privacy?

Genetically related siblings typically share one or both parents. Thus, in the case of full siblings, sharing of DNA profiles would occur much more commonly than among unrelated persons. Full siblings born to unrelated parents have identical STR profiles at an average of four loci, compared to identity at less than a single locus among unrelated individuals. These observations in siblings have important implications for forensic geneticists, as it becomes important to consider the matter of brothers in cases in which complete multi-locus DNA profiles are not obtained (e.g., due to DNA degradation). Also, in a search of a DNA database, a high degree of allele sharing can provide an important investigative lead (i.e., possibly implicating a brother) even in the absence of a complete profile match of crime scene evidence against a registry of convicted offenders. Thus, it is important for DNA database administrators to have a system to notify law enforcement when a high degree of allele sharing is found in a computer search, even if it is not a complete "match" at all loci.

In reality, sibling issues are not the rule in forensic investigations, and low-stringency database searches would usually lead to too many "partial profile hits" to be of any practical use in the majority of investigations. However, this approach has been used on a large scale in identifying remains from mass disasters, such as airplane crashes. Databases have been set up with DNA of close relatives of victims to produce matches through reduced stringency searches.

However, the number of people "indirectly" in a forensic DNA database because they are closely related to someone who is in the database is potentially much larger than the number of individuals in the database. A peculiar situation could arise where the database has a low-stringency "hit" of an individual who could not possibly have committed the crime, for example, because the individual had died years earlier (there are few if any provisions in state database laws to expunge from databases the data from deceased individuals). That is, an individual's genes might continue to implicate close relatives for many years after the individual's death.

While the architecture of CODIS allows low-stringency searches - all it would require is a little time to develop the appropriate search algorithm - the FBI has not set standards for low-stringency searches of CODIS, and no state database laws have set policy with respect to whether such searches should be done.

7. Racial identification using DNA haplotype analysis. Although the science is still developing, eventually it may be possible to predict the racial background of the contributor of an unknown DNA sample at a crime scene. As the field develops, DNA haplotype maps of the human genome will permit evaluation of haplogroups that are more common in (or perhaps unique to) defined population or sub-population groups (Shriver et al., 1997). Issues to be addressed include the current practice involving use of single nucleotide polymorphism (SNP) and STR haplotyping for racial identification of unknown forensic samples, accuracy of discriminant function analysis of data and pitfalls in their use. If DNA profiles (e.g., SNP haplogroups) lead investigators to look at particular populations, will this lead to discrimination against these populations or to mass collections of blood samples (i.e., "blooding") from these populations?

8. Resource allocation. Although all states have passed legislation authorizing collection of DNA for forensic purposes, some have not allocated funds. The variation in resources is reflected in state-to-state variation in the effectiveness of the database. Most of the investigations aided are from three states: Virginia (721), Florida (738), and Illinois (521), while 18 states have not reported a single investigation aided. Similarly, while 26 states have statutes to increase access to DNA analysis post conviction, this access may mean little if no resources are allocated for actual testing. These facts point to the fundamental value choices embodied in resource allocation decisions and the need for a discussion on resources that should be devoted to applications of DNA technology. (All CODIS data are from CODIS website: http://www.fbi.gov/hq/lab/codis/index1.htm.)

9. Federal versus state roles. Although states set criteria for inclusion, retention, and access, the federal government can pre-empt states under some circumstances and also sets standards for data integrity.

10. Role of medical personnel in taking samples. Taking DNA for criminal investigation purposes is not a "medical" procedure that could help the individual. Some nurses and doctors have refused to take such samples. Should sample taking be assigned to non-medical personnel who have licenses to draw blood?

11. The "autonomy of science." Within the criminal justice system, scientists testifying as expert witnesses are responsible to the truth, whereas prosecutors and defense attorneys are advocates for opposing views. Does this represent a dilemma that might bias expert testimony? Closely following this issue is trusting science in the criminal justice system. The laboratory capacities that the criminal justice system have developed are often dependent and controlled by the law enforcement community - which will typically have a stake in the outcome of the analyses conducted by those laboratories. Scientific research (in academia) has developed a sophisticated set of safeguards to buffer researchers from the demands of those with stakes in the outcome of their research. The criminal justice system, instead, relies heavily on the adversarial processes of the courtroom to bring to light any biases or flaws in the science.

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C. Research Uses

12. Medical research. So far, states have permitted research use of material in forensic DNA banks only for purposes of improving or developing methods of DNA identification algorithms. However, some states do not have statutes restricting uses for medical or behavioral research . Some states prohibit research on the samples, while others allow only anonymous research on population statistics, while Alabama (Code 36-18-31 (2001)) authorizes and empowers the Director of Forensic Sciences "to assist in other humanitarian endeavors, including but not limited to educational research or medical research or development."

13. Behavioral genetic research. Because of the nature of the prison population, there may also be interest in doing research on behavioral conditions, such as predispositions to addiction, antisocial behavior, and violence. Some human behavioral genetics research is controversial because of the possibility of stigmatization, not only of individuals, but of entire racial groups. Should research be done with forensic DNA samples, and if so, what should be the limits?

14. Informed consent for research. Although states may take DNA samples without consent, use in research (especially if a sample can be linked to an individual by a code) may require informed consent. Is truly informed consent possible if the person is in prison?

15. Commercialization. If research is permitted, commercial companies may become buyers of samples from states that are interested in finding monetary support for their forensic DNA samples or profiles. States sold information from drivers' licenses (name, age, address, medical restrictions) for many years to advertisers, no questions asked. How should DNA samples be protected?

16. Use for epidemiological purposes. Is use of samples justifiable (with or without consent?) if samples are rendered totally and irrevocably anonymous?

17. Fiduciary issues versus the common good. (Liberty interests versus privacy interests). Is there a moral obligation to do research with DNA samples that might help the populations from which the samples were taken?

18. Use of DNA collected for identification in mass disasters. DNA collected from remains and victims' families may represent cross-sections of populations that would be of interest to researchers. Should universal guidelines be in place for the retention, use, and protection of this material from unwarranted intrusion?

D. Future Science and Policy

19. National DNA identification at birth. Under the current, imperfect justice system, DNA from African-Americans and Hispanics is more likely to go into NDIS and CODIS than DNA from whites or Asians. DNA from males is far more likely to go into databases than DNA from females. The majority of the prison population is African-American or Hispanic (U.S. Department of Justice, 1997). One argument in favor of universal DNA identification is that it might be fairer than collecting samples only from those who come into contact with the criminal justice system, who are disproportionately minorities.

The concept of DNA identification at birth raises the additional issue of relationship between this and state-mandated newborn screening for treatable diseases. Assuming a cost of $50-$100 per sample, it would cost $15-30 billion to process samples for the entire U.S. population. More realistically, blood samples could be required upon birth, for receipt of a driver's license, and upon entry into the country, creating an ongoing flow into the system, which would eventually encompass the entire population. Currently it would cost approximately 0.1-0.2 percent of our annual GNP to process samples from every man, woman, and child, and then substantially less thereafter. These costs are likely to drop substantially in coming years. The benefits are easily quantifiable: the percentage of cases in Florida, with one of the most comprehensive databases in the country, which result in "cold hits" is 25-50 percent. With a universal database, this number could (theoretically) approach 100 percent. The risk to civil liberties is that broad swaths of society could come under "genetic surveillance" because they may share mutations with someone who has been charged with or convicted of a crime, or in some states with someone who has only been arrested.

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Research Methods

Rationale and Value Added to Work of the National Commission on the Future of DNA Evidence. The project will build on the work of the National Commission for the Future of DNA Evidence, by creating a forum, through workshops and a concluding educational symposium for state policy makers, for the use of DNA in the criminal justice system, with a particular focus on the ethical dimensions. The workshops will be arranged under the following topics, following the eighteen ethical issues described under A-D above.

Literature Cited

P. Aldhous, "Geneticists attack NRC report as scientifically flawed," Science 259 (1993): 755-756.

P.J. Billings, ed., DNA on Trial: Genetic Identification and Criminal Justice (Cold Spring Harbor, N.Y.: Cold Spring Harbor Laboratory Press, 1992).

S. Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification (Harvard University Press: Cambridge, MA, 2001).

H. Coleman and E. Swenson, DNA in the Courtroom, (Seattle, Washington: Genelex Corp., 1994).

F. Galton, Fingerprints (MacMillan, London, 1892).

J.E. McEwen, "Forensic DNA Data Banking by State Crime Laboratories." Am. J. Hum. Genet. 56 (1995): 1487-1492.

J.E. McEwen and P.R. Reilly, "A Review of State Legislation on DNA Forensic Data Banking," Am. J. Hum. Genet. 54 (1994): 941-958.

H.L. Miles, F.R. Bieber, D.H. Bing, M.T. Bourke, M.C. Hinkle, W.C. McPhee, R.G. Stearns, and A.D. Vuono, DNA and Other Scientific Evidence. How to Use it and How to Challenge it in the Courtroom, Massachusetts Continuing Legal Education No. 95-06.15, Boston, Mass. (1995).

National Institute of Justice, Convicted by Juries: Exonerated by DNA (Washington, D.C.: NIJ, 1996).

R. Saferstein, Criminalistics, 7th ed. (Englewood Cliffs, New Jersey: Prentice Hall, 2000).

B. Scheck, 1994. "DNA Data Banking: A Cautionary Tale" (invited editorial), Am. J. Hum. Genet. 54 (2000): 931-933.

M.D. Shriver, M. Smith, A.M. Ji lin, J. Akey, R. Deka, R.E. Ferrell, "Ethnic Affiliation Estimation by Use of Population-Specific DNA Markers," Am. J. Hum. Genet. 60 (1997): 957-964.

W.A. Thompson, "Evaluating the Admissibility of New Genetic Identification Tests: Lessons from the DNA War," J. Crim. Law Criminal 84 (1993): 22-45.

U.S. Department of Justice. Federal Bureau of Investigation, State DNA Database Laws: Outline of Provisions, (Washington, D.C.: FBI, 1996).

U.S. Department of Justice, Bureau of Justice Statistics, Lifetime Likelihood of Going to State or Federal Prison, (Washington, D.C., U.S. Government Printing Office, March 1997): 8-10.

U.S. Department of Justice, National Institute of Justice, Convicted by Juries: Exonerated by DNA (Washington, D.C.: NIJ, 1996).

U.S. Department of Justice, National Institute of Justice, National Commission for the Future of DNA Evidence, The Future of Forensic DNA Testing: Predictions of the Research and Development Working Group, (Washington, D.C.: NIJ, November 2000).

J. Wambaugh, The Blooding (New York: William Morrow and Company, 1989).

D.C. Wertz, "The Difficulties of Recruiting Minorities to Studies of Ethics and Values in Genetics," Community Genet. 1 (1998): 175-179.

D.C. Wertz, "Archived Specimens: A Platform for Discussion," Community Genet. 2 (1999): 51-60.

D.C. Wertz and J.C. Fletcher, Genetics and Ethics in Global Perspective, (Washington, D.C.: Georgetown University Press, in press).

J. Wooley, and R.P. Harmon, R.P, "The Forensic DNA Brouhaha: Science or Debate?" (letter), Am. J. Hum. Genet. 51 (1992): 1164-1165.

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DNA ELSI GRANT HOME

Project Description

Workshop #1, May 14-15, 2004

Workshop #2, September 17-18, 2004

Workshop #3, May 13-14, 2005

Workshop #4, September 16-17, 2005

Special Report

ASLME Reports

Summaries of Current News