Family ties: The use of DNA offender databases to catch offenders' kin

Journal of Law, Medicine and Ethics

Volumn 34, Issue 2, 2006, Pages 248-262

  Greely, Henry T ^a,b   Riordan, Daniel P ^c   Garrison, Nanibaa A ^c   Mountain, Joanna L ^b  

^a Department of Law ^*

^b STANFORD UNIVERSITY   (United States)

^c STANFORD UNIVERSITY SCHOOL OF MEDICINE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

AFRICAN AMERICAN; CONFERENCE PAPER; DNA FINGERPRINTING; FAMILY; GENETIC PRIVACY; HUMAN; INFORMATION RETRIEVAL; LAW ENFORCEMENT; LEGAL ASPECT; METHODOLOGY; NUCLEIC ACID DATABASE; UNITED STATES;

AFRICAN AMERICANS; DATABASES, NUCLEIC ACID; DNA FINGERPRINTING; FAMILY; GENETIC PRIVACY; HUMANS; INFORMATION STORAGE AND RETRIEVAL; LAW ENFORCEMENT; UNITED STATES;

EID: 33745291435     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2006.00031.x     Document Type: Conference Paper

References (53)

1. W. Shakespeare, The Merchant of Venice, III verse 1. It is perhaps revealing of Shakespeare's view of this maxim that it is said by Launcelot, the fool, to Jessica, Shylock's daughter, of whose marriage and conversion to Christianity the play approves. Although the term sounds Biblical, the King James version of the Bible at least does not refer to the "sins" of the fathers, but instead talks of the "iniquity" of the fathers. "For I the Lord thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me." Exodus, 20:5. Similar sentiments are expressed in Exodus 32:7, Numbers 14:18, Deuteronomy 5:9, and Jeremiah 32:18. But see Ezekiel 18:20 ("The son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son: the righteousness of the righteous shall be upon him, and the wickedness of the wicked shall be upon him.").
2. This description of the case is taken largely from "The Sins of the Fathers," The Economist ( April 24 2004 S. Bird M3 Brick Killer Tracked Through Relative's DNA The Times (London) April 20 2004, at 11 B. Taylor, "Killer Who was Trapped by his Relative's DNA," Daily Mail, April 20 2004, at 25; Forensic Science Service Annual Report, 2004-05, at 9, available at http://www.forensic.gov.uk/forensic_t/inside/about/annual.htm (last visited February 22 2006). One law review article describes the Harman case, though it does not analyze this kind of forensic search. See. S. E. Henderson, "Nothing New Under the Sun¿ A Technologically Rational Doctrine of Fourth Amendment Search," Mercer Law Review 56 (2005): 507-563, at 554-55. Other overlapping news coverage of the Harmon case includes. J. Brookfield, "Trail-Blazing Use of DNA Evidence is Helping Police Beat the Criminals," The Express, April 21 2004, at 17; S. Clough, "World First for Police as Relative's DNA Traps Lorry Driver's Killer," The Daily Telegraph, 2004, at 6; J. Twomey, "World First as New Technique Helps Track Down Yob," The Express, April 20 2004, at 15; S. Raif, "DNA Link Helped to Trace Killer," The Journal (Newcastle), April 20 2004, at 16; A. Williams, "Brick Killer Trapped by his Relative's DNA," The Mirror, April 20 2004, at 13; P. Cheston and R. Mowling, "M3 Brick Killer Trapped by DNA Link in Family," Evening Standard, April 19 2004, at C5; N. Allen, "Pioneering Technique Used to Track Killer," Press Association, April 19 2004.
3. Almost all of the sources describe the person in the database only as a "close relative," apparently because of legal protections for the relative's privacy. Taylor, supra note 2. The Economist calls the two men brothers, which, given that Harman was twenty at the time and the "close relative" in the database was under thirty-five years old, seems most likely.
4. Forensic Science Service, supra note 2.
5. R. Willing Suspects Get Snared by a Relative's DNA USA Today, June 7 2005, at 1A.
6. Bird, supra note 2. See also R. Williams and P. Johnson, "Inclusiveness, Effectiveness, and Intrusiveness: Issues in the Developing Uses of DNA Profiling in Support of Criminal Investigations," Journal of Law, Medicine & Ethics 33 (2005): 545-557, at 553-556. Reprinted in this issue, Journal of Law, Medicine & Ethics 34 (2006): 234-247.
7. "He May Never Have Been Caught," Nottingham Evening Post, May 28 2004, at 2.
8. Willing, supra note 5.
9. Kansas authorities have not spoken much about their use of DNA in the BTK case, But several press reports indicate that they used a search warrant to a medical clinic to get tissue samples of the suspect's daughter. C. Moon Sides Trade Charges Over Abortion Records Topeka Capital-Journal, September 2 2005, at C1 S. Simon and P. J. Huffstutter, "Clues Were Clear but Slow to Add Up," Los Angeles Times, March 6, 2005, at A1. At least one reputable newspaper reported, however, that the daughter voluntarily provided the DNA sample in order to clear her father. M. Davey, "Computer Disk Led to Arrest in Killings, Pastor Says," New York Times, March 2, 2005, at A12.
10. This use of DNA databases is discussed in the second workshop held by the American Society of Law, Medicine & Ethics under a grant to study issues in forensic DNA. DNA Fingerprinting and Civil Liberties Project, Report of Workshop 2, available at http://www.aslme.org/dna_04/work2/report.php ( last visited February 22 2006). Although one of the authors of this paper is part of the grant and participated in the third workshop, neither he nor any of the other authors were involved in the second workshop. Discussion also appears in several published sources. The most extensive written discussion of the issues appears to be four pages in R. Williams and P. Johnson, supra note 6, at 553-556. See the discussion in note 29, et. seq. See also, R. Williams, P. Johnson, P. Martin, Genetic Information & Crime Investigation: Social, Ethical and Public Policy Aspects of the Establishment, Expansion and Police Use of the National DNA Database (2004) at 108-110, available at (last visited March 10, 2006). The issue also receives several pages of discussion in D. Lazer and M. N. Meyer, "DNA and the Criminal Justice System: Consensus and Debate," in D. Lazer, ed., DNA and the Criminal Justice System: The Technology of Justice (Cambridge, MA: MIT Press, 2004): at 371, 374-76. See discussion in note 28. Another chapter in the same book discusses in two paragraphs the technology of sibling-sibling partial matches. F. R. Bieber, "Science and Technology of Forensic DNA Profiling: Current Use and Future Directions," in D. Lazer, ed., DNA and the Criminal Justice System: The Technology of Justice (Cambridge, MA: MIT Press, 2004): at 47-48. A few other sources mention the possibility of such searches without any substantial analysis. T. Simoncelli and B. Steinhardt, "California's Proposition 69: A Dangerous Precedent for Criminal DNA Databases," Journal of Law, Medicine & Ethics 33 (2005): 279-291, at 284 (one paragraph discussing the possibility); E. Juengst, "I-DNA-Fication, Personal Privacy, and Social Justice," Chicago Kent Law Review 75 (1999): 61-82, at 79 (one paragraph mention of the possibility); and Willing, supra note 5. Cf. J. Buckleton and C. M. Triggs, "Relatedness and DNA: Are we taking it Seriously Enough¿" Forensic Science International 152 (2005): 115-119 (suggesting that when reporting match probabilities, the probability that a sample matches a sibling should routinely be included).
11. Crime scene DNA is also usually analyzed for another marker, called amelogenin, which has two different lengths in men and only one length in women, thus allowing the DNA sample to be sexed.
12. For ease of reference only, this article will refer to people in the Offender Index as "offenders," even though at least some of them will be people charged with, but not convicted of, a crime.
13. Cal. Penal Code § 296 ( 2006 murder and rape initially, all felonies in 2009 Tex. Government Code Ann. § 411.1471 ( 2006) (specified felonies, plus some former offenders when re-arrested); Va. Code Ann. § 19.2-310.2:1 (2006) (arrested for violent felonies); La. Rev. Stat. Ann. § 15:609 (2006) (all felonies); DNA Fingerprint Act of 2005, Title X of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Section 1004(a)(1)(A), Pub. Law No. 109-162, 119 Stat. 2960 (2006).
14. Since the passage of the Justice For All Act, in late 2004, federal law has authorized the states to submit DNA profiles to CODIS from a) Persons convicted of crimes; b) Persons who have been charged in an indictment or information with a crime; and c) Other persons whose DNA samples are collected under applicable legal authorities, provided that DNA profiles from arrestees who have not been charged in an indictment or information with crime, and DNA samples that are voluntarily submitted solely for elimination purposes shall not be included in the National DNA Index System. Pub. L. 109-405, § 203(a)(1). The FBI can also put into the index records that are "(2) analyses of DNA samples recovered from crime scenes; (3) analyses of DNA samples recovered from unidentified human remains; and (4) analyses of DNA samples voluntarily contributed from relatives of missing persons 42 U.S.C. § 14132(a) ( 2006).
15. The FBI also maintains a "population file" of anonymous genotypes used in determining the significance of any match.
16. NDIS Statistics, available at http://www.fbi.gov/hq/lab/codis/clickmap. htm ( last visited February 22 2006).
17. FBI CODIS webpage, Investigations Aided, available at http://www.fbi.gov/hq/lab/codis/aidedmap.htm ( last visited February 22 2006). This number may well be overstated; it is not clear how seriously the DNA analysis must assist the police in order to be counted as an aid to an investigation. For a fuller discussion of this topic, see in this issue, F. Bieber, "A Home Run or Just a Base Hit¿ Measuring and Improving the Efficacy of Forensic DNA Databank Programs," Journal of Law, Medicine & Ethics 34(2006): 222-233.
18. National Research Council, DNA Technology in Forensic Science ( National Academies Press : 1992).
19. National Research Council, The Evaluation of Forensic DNA Evidence ( National Academies Press : 1996).
20. There is some uncertainty in determining the length of an STR A person who matches perfectly on twenty-five out of twenty-six markers and just misses matching on the last allele may really be a perfect match with the length of one allele misread on either the crime scene sample or in the analysis entered into the database.
21. These and subsequent calculations concerning the number of matching alleles were performed by co-author Riordan with assistance from co-authors Mountain and Garrison. A scientific article setting out these calculations in more detail is in preparation.
22. These odds vary depending on ethnicity. For most ethnicities in the United States, the odds are about 1 in 2,000 for Navajo, the odds are about 1 in 300.
23. It is also possible that crime scene DNA might show partial matches to genotypes of two offenders who are known to be related to each other. This could make the probability much higher that the crime scene DNA came from someone in their family. We have not calculated the extent of the increased probability, but it seems likely, in some cases, to be substantial.
24. This excludes identical (or "monozygotic") twins, who will necessarily share all twenty-six alleles.
25. Bureau of Justice Statistics, U.S. Dept. of Justice, State Court Sentencing of Convicted Felons, 2002 - Statistical Tables, Table 2.1, available at http://www.ojp.usdoj.gov/bjs/abstract/scscfst.htm ( last visited February 22 2006).
26. The British materials refer to a cost of £5,000 for a familial search, but this is not the cost but the price - the price charged to the police by the Forensic Science Service to run the search.
27. DNA Fingerprinting and Civil Liberties Project, Report of Workshop 2, supra note 10.
28. Lazer and Meyer, supra note 10.
29. Williams and Johnson, supra note 6, at 553-56 see also Williams, Johnson, and Martin, supra note 10, at 108-110.
30. Williams and Johnson, supra note 6, at 555.
31. It would, however, be possible to prove that they did not share the same mother, using an analysis of mitochondrial DNA, which descends only from the mother. If both putative siblings were male, it could also be possible to prove that they did not have the same father, using an analysis of their Y chromosomes, which come only from fathers and go only to sons.
32. Williams and Johnson, supra note 6, at 555. For another perspective on this issue of familial searching and families, see in this issue, E. Haimes, "Social and Ethical Issues in the Use of Familial Searching in Forensic Investigations: Insights from Family and Kinship Studies," Journal of Law, Medicine & Ethics 34 (2006): 263-276.
33. Nevertheless, they are able to quote the custodian of the British DNA database as saying in A public meeting of the Human Genetics Commission held in February 2004 that '[Familial searching] is based on some very important assumptions that criminality can run in families, that a relative could be on the database, the families tend to live in the same area, and that offenders tend to offend close to their homes or in areas that they frequently visit Id (emphasis added). That statement can only be true in the very weak sense that such testing requires an assumption that it is possible that two members of the same family could both commit crimes - hardly a troubling position.
34. Id.
35. Id.
36. Willing, supra note 5.
37. Williams and Johnson, supra note 6, at 556.
38. Willing, supra note 5.
39. Willing, supra note 5. It is not clear on what privacy law Callaghan based that assertion. The statute authorizing the creation of the Offender Index allows the use only of information maintained by federal, state, or local agencies "pursuant to rules that allow disclosure of stored DNA samples and DNA analyses only (A) to criminal justice agencies for law enforcement identification purposes," among other purposes. 42 U.S.C. § 14132(b)(3)(A) (2006). The statute directly regulating CODIS and the Offender Index, in the provisions entitled "privacy protection standards," expressly allow "the results of DNA performed for a federal law enforcement agency" to criminal justice agencies for law enforcement identification purposes. 42 U.S.C. § 14133(b)(1) (2006). Furthermore, nothing in the statutes authorizing mandatory collection of DNA from federal offenders, 42 U.S.C. § 14135a (2006), or District of Columbia offenders, 42 U.S.C. § 14135b (2006), appears to limit the use of those samples for partial match searches. The portion of that statute entitled "privacy protection standards" merely restricts their uses to those authorized by the collection statutes and expressly permits their use under circumstances where CODIS samples may be used, cross-referencing 42 U.S.C. § 14132(b)(3). It is possible that Callaghan is construing "law enforcement identification purposes" to be limited to cases where there is an exact, and hence (almost) perfectly identifying match, but that seems strained. He may be referring to other federal privacy statutes, although the Federal Privacy Act, for example, contains a general authorization for disclosure for law enforcement purposes. 5 U.S.C. § 552a(b)(7) (2006). It is impossible to analyze Callaghan's claim fully without more information about it. In any event, it does not sound as though Callaghan is asserting that state law enforcement officials cannot perform family searches of the Offender Database.
40. Willing claims that regulations in New York and Massachusetts allow familial searching. This assertion is based on an analysis of Massachusetts and New York regulations done for the American Society of Law, Medicine & Ethics. S. Axelrad, States Regulations on Low Stringency/Familial Searches of DNA Databases ( 2004 available at http://www.aslme.org/dna_04/reports/index.php ( last visited February 22 2006). The actual regulations, as they appear in Axelrad's report, appear to be more concerned with the submission of partial genotypes - when, for example, for technical reasons fewer than all twenty-six alleles could be obtained from crime scene DNA - for search to the database, not the reporting from the database of partial genotype matches. Mass. Regs. Code 515 § 2.14; N.Y. Comp. Codes R. & Regs. 9 § 6192.3.
41. U.S. Const. art. III, § 3, cl. 2. An almost identical prohibition was included, more than seventy years later, in the Confederacy's constitution. Constitution of the Confederate States of America, art. III, § 3, cl. 2, available at http://www.yale.edu/lawweb/avalon/csa/csa.htm ( last visited February 22 2006). The Confederate constitution used exactly the same words as the Federal constitution, with minor variations in capitalization and punctuation.
42. Ala. Const. Art. I, § 19; Alaska Const. Art. I, § 15; Ariz. Const. Art. II, § 16; Ark. Const. Art. II, § 17; Colo. Const. Art. II, § 9; Conn. Const. Art. IX, § 4; Del. Const. Art. I, § 15; Ga. Const. Art. I, § 1, para. XX; Idaho Const. Art. V, § 5; Ill. Const. Art. I, § 11; Ind. Const. Art. I, § 30; Ky. Const. § 20; Me. Const. Art. I, § 11; Md. Const. Art. 27; Minn. Const. Art. I, § 11; Mo. Const. Art. I, § 30; Neb. Const. Art. I, § 15; N.C. Const. Art. I, § 29; Ohio Const. Art. I, § 12; Okla. Const. Art. II, § 15; Or. Const. Art. I, § 25; Pa. Const. Art. I, § 19; S.C. Const. Art. I, § 4; Tenn. Const. Art. I, § 12; Tex. Const. Art. I, § 21; Wash. Const. Art. I, § 15; W. Va. Const. Art. III, § 18 andWis. Const. Art. I, § 12.
43. Haw. Rev. Stat. Ann. § 831-3 (2005) N.H. Rev. Stat. Ann. § 607-A:3 (2005); N.J. Stat. Ann. § 2A:152-2 (2005); N.D. Cent. Code § 12.1-33-02 (2005); R.I. Gen. Laws § 12-19-4 (2005); and Va. Code Ann. § 55-4 (2005). Several of the states with constitutional prohibitions also have statutory bans: Ark. Code Ann. § 14-14-805 (2005) Md. Code Ann., Est. & Trusts § 11 109 ( 2005 Tex. Prob. Code Ann. § 41 (2005), Tex. Crim. Proc. CODE ANN. § 1.19 (2005); and W. VA. CODE ANN. § 61-11-4 (2005).
44. This uniform act is somewhat mysterious. It was recommended to the states for passage in 1964 by the National Conference of Commissioners on Uniform State Laws, but "was withdrawn from recommendation for enactment by the NCCUSL in 1966 due to being obsolete." 11 Uniform Laws Annot. 235 ( 2001). At some point two states, Hawaii, Haw. Rev. Stat. §§831-1 et seq., and New Hampshire, N.H. Rev. Stat. §§607-A:1, etseq., adopted it. Neither the three mentions of the Act in law review articles that a search of Lexis uncovered nor the seven mentions in judicial opinions shed any light on its rapid obsolescence, or anything else about it. No mention of it can be found on the NCCUSL web site, at (last visited February 22, 2006).
45. It appears that corruption of blood for any treason or felony was abolished by the Forfeiture Act of 1870. The Act did not, however, abolish corruption of blood for outlawry (which seems to mean that if any people were declared outlaws, with no civil rights or status under the law, after 1870, they continued to experience corruption of blood). J. P. Bishop, Bishop On Criminal Law, J. M. Zane and C. Zollman, eds., vol. 1, 9th ed. (Chicago: T. H. Flood and Company, 1923): at 717; J. F. Stephen, A History of the Criminal Law of England, vol. 1 (originally published 1883) (Buffalo, NY: William S. Hein & Co., 1980): at 488.
46. We owe the suggestion that this be discussed to an anonymous reviewer.
47. See, e.g., Pierce v. Society of the Sisters, 268 U.S. 510 ( 1925) (state ban on private schools held unconstitutional); Meyer v. Nebraska, 262 U.S. 390 (1923) (state ban on teaching children German held unconstitutional); Yoderv. Wisconsin, 406 U.S. 205 (1972) (state law requiring high school education for fourteen- and fifteen-year-olds held unconstitutional, largely under the Free Exercise clause of the First Amendment, but also on the parents' rights to determine the children's education, or lack thereof).
48. Troxel v. Granville, 530 U.S. 57 ( 2000) (state law giving grandparents visitation rights violates parents' constitutional rights to control children's rearing). Moore v. City of East Cleveland, 431 U.S. 494 (1977) (zoning ordinance with narrow definition of family violates the Due Process clause, plurality opinion).
49. Griswoldv. Connecticut, 381 U.S. 479 ( 1965).
50. Roe v. Wade, 410 U.S. 113 (1973) Planned Parenthood v. Casey, 505 U.S. 833 ( 1992).
51. Troxel, 530 U.S. at 66 (Justice O'Connor, writing for the plurality).
52. D. H. Kaye and M. E. Smith DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage Wisconsin Law Review ( 2003 413 459.
53. See Kaye and Smith, supra note 50.