Relative doubt: Familial searches of dna databases

Michigan Law Review

Volumn 109, Issue 3, 2010, Pages 291-348

  Murphy, Erin ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 78649469924     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (214)

1. Maura Dolan & Jason Felch, Tracing a Suspect Through a Relative, L.A. Times, Nov. 25, 2008, at 1.
2. Ellen Nakashima, From DNA of Family, a Tool to Make Arrests, Wash. Post, Apr. 21, 2008, at A1.
3. Ellen Nakashima, From DNA of Family, a Tool to Make Arrests, Wash. Post, Apr. 21, 2008, at A1.
4. Dolan & Felch, supra note 1.
5. Bulletin, CODIS Bulletin # BT072006, Interim Plan for Release of Information in the Event of a "Partial Match" at NDIS (July 20, 2006).
6. Information Bulletin from Edmund G. Brown, Jr., Attorney General, DNA Partial Match (Crime Scene DNA Profile to Offender) Policy No. 2008-BFS-01 (2008) [hereinafter California Policy]; Maura Dolan & Jason Felch, California Takes Lead on DNA Crime-Fighting Technique, L.A. Times, Apr. 26, 2008, at 1.
7. See, e.g., Jeremy W. Peters, New Rule Allows Use of Partial DNA Matches, N.Y. Times, Jan. 25, 2010, at 12 (announcing New York's change in policy, as of December 2009, to permit kinship matches under certain circumstances).
8. See Natalie Ram, Fortuity and Forensic Familial Identification, 63 Stan. L. Rev. (forth-coming 2011); see also Natalie Ram, Interactive Map: State Policies for DNA Crime Databases Vary Widely, Sci. Progress, Nov. 2, 2009, http://www.scienceprogress.org/2009/11/map-state-dna-policies/print/
9. Dolan & Felch, supra note 1.
10. Greg Miller, Scientists Explain How Familial DNA Testing Nabbed Alleged Serial Killer, Science Insider, July 12, 2010, http://news.sciencemag.org/scienceinsider/2010/07/scientists-explain-how-familial.html. It is unclear whether the ten prior attempts turned up no leads at all, orwhether some turned up leads, but further investigation of those leads' relatives relieved them ofsuspicion.
11. Dolan & Felch, supra note 1.
12. Miller, supra note 10.
13. John M. Butler, Forensic DNA Typing 17-20 (2d ed. 2005). See generally Erin Mur-phy, The Art in the Science of DNA: A Layperson's Guide to the Subjectivity Inherent in Forensic DNA Typing, 58 Emory L.J. 489, 495 (2008). The twenty-third chromosome pair is the sex chromo-some-either XX for females or XY for males. Id.
14. Murphy, supra note 13, at 494-95.
15. Butler, supra note 13, at 26.
16. Butler, supra note 13 at 85-86.
17. Murphy, supra note 13, at 495.
18. Butler, supra note 13, at 23.
19. Identical twins will of course share all alleles in common. Id. at 26.
20. Henry T. Greely et al., Family Ties: The Use of DNA Offender Databases to Catch Of-fenders' Kin, 34 J.L. Med. & Ethics 248, 253 (2006); see also Simon Cowen & Jim Thomson, A likelihood ratio approach to familial searching of large DNA databases, 1 Forensic Sci. Int'l 643, 644 & fig.1 (2008) (reporting on simulations of shared allele expectations in related and unrelated populations using SGM+ loci).
21. Greely et al., supra note 20, at 253.
22. Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 Calif. L. Rev. 721, 738 (2007).
23. Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 Calif. L. Rev. 721, 738 (2007).at 739-40 & nn.74 & 79.
24. Butler, supra note 13, at 440.
25. Murphy, supra note 22, at 739 & nn.75 & 76.
26. 42 U.S.C. § 14132(a)(1)(C) (2000).
27. 42 U.S.C. § 14132(a)(1) (2006) (adding to "persons convicted of crimes" also those "charged in an indictment or information with a crime" as well as "other persons whose DNA sam-ples are collected under applicable legal authorities") Justice for All Act of 2004, Pub. L. No. 108-405, § 203(a)(1), 118 Stat. 2260, 2269 (2004) (altering enabling legislation).
28. 42 U.S.C. § 14131-32 (2006).
29. Murphy, supra note 22, at 738.
30. Federal Bureau of Investigation, CODIS Statistics Clickable Map, http://www.fbi.gov/hq/lab/codis/clickmap.htm (last visited Oct. 6, 2010).
31. Yun S. Song et al., Average Probability that a "Cold Hit" in a DNA Database Search Results in an Erroneous Attribution, 54 J. Forensic Sci. 22, 22-23 (2009) (citing cases where convictions were obtained by this method). See generally Andrea Roth, Safety in Numbers?: Deciding When DNA Alone Is Enough To Convict, 85 N.Y.U. L. Rev. 110 (forthcoming Oct. 2010).
32. Murphy, supra note 22, at 739 (explaining databases available at local, state, and national levels).
33. Butler, supra note 13, at 441; Murphy, supra note 22, at 739 n.75. This benefit sub-sided slightly when the federal rules adapted to allow uploading of any material collected in compliance with state regulations.
34. Eva Steinberger & Gary Sims, Finding Criminals Through the DNA of Their Relatives-Familial Searching of the California Offender DNA Database, 31 Prosecutor's Brief 28, 30 (2008).
35. Eva Steinberger & Gary Sims, Finding Criminals Through the DNA of Their Relatives-Familial Searching of the California Offender DNA Database, 31 Prosecutor's Brief 28, 30 (2008).
36. Eva Steinberger & Gary Sims, Finding Criminals Through the DNA of Their Relatives-Familial Searching of the California Offender DNA Database, 31 Prosecutor's Brief 28, 30 (2008).at 30-31.
37. Eva Steinberger & Gary Sims, Finding Criminals Through the DNA of Their Relatives-Familial Searching of the California Offender DNA Database, 31 Prosecutor's Brief 28, 30 (2008).at 30.
38. 38 Eva Steinberger & Gary Sims, Finding Criminals Through the DNA of Their Relatives-Familial Searching of the California Offender DNA Database, 31 Prosecutor's Brief 28, 30 (2008).at 29-31.
39. Erin E. Murphy et al., Equality, Efficiency & Familial DNA Search Policies (unpublished manuscript) (on file with author); see also Frederick R. Bieber et al., Finding Criminals Through DNA of Their Relatives, 312 Sci. 1315, 1315-16 (2006) (estimating that roughly 80 percent of siblings might be identified).
40. T.M. Reid et al., Use of sibling pairs to determine the familial searching efficiency of forensic databases, Forensic Sci. Int.: Genetics 340-42 (2008).
41. T.M. Reid et al., Use of sibling pairs to determine the familial searching efficiency of forensic databases, Forensic Sci. Int.: Genetics 340-42 (2008).
42. Steinberger & Sims, supra note 34, at 31 ("Research conducted at the DOJ Richmond DNA laboratory has shown that CODIS, in its current configuration, is a very poor tool for finding familial relationships."). That is because "CODIS looks for allele-sharing patterns based on the level of stringency specified in a search and does not take into account the rarity in the population of a shared allele." Id.; see also Dolan & Felch, supra note 1 ("The FBI software was not designed to find relatives, and a standard search accidentally eliminates more than 99.9% of relatives while often fingering people whose profiles are similar by pure chance....").
43. Denver DA Mitch Morrissey has stated that he is testing software explicitly designed for such searches. National Forensic Science Technology Center, Familial DNA Search Investigations, http://projects.nfstc.org/postconviction/presentations/morrissey.pdf (last visited Sept. 9, 2010). It appears that he is referring to a program known as "DNA•View," which was developed by a re-searcher. DNA•View, http://dna-view.com/dnaview.htm (last visited Sept. 9, 2010). Morrissey claims that it can eliminate 90 percent of unrelated people.
44. Robin Williams & Paul Johnson, Inclusiveness, Effectiveness and Intrusiveness: Issues in the Developing Uses of DNA Profiling in Support of Criminal Investigations, 34 J.L. Med. & Eth-ics 234, 242 (2006).
45. Robin Williams & Paul Johnson, Inclusiveness, Effectiveness and Intrusiveness: Issues in the Developing Uses of DNA Profiling in Support of Criminal Investigations, 34 J.L. Med. & Eth-ics 234, 242 (2006). at 243.
46. Robin Williams & Paul Johnson, Inclusiveness, Effectiveness and Intrusiveness: Issues in the Developing Uses of DNA Profiling in Support of Criminal Investigations, 34 J.L. Med. & Eth-ics 234, 242 (2006). at 243.
47. Robin Williams & Paul Johnson, Inclusiveness, Effectiveness and Intrusiveness: Issues in the Developing Uses of DNA Profiling in Support of Criminal Investigations, 34 J.L. Med. & Eth-ics 234, 242 (2006). at 243.
48. See Thomas Jones, The Devil is in the Detail, Guardian, Apr. 10, 2010, at 24. The UK Forensic Regulator is presently undertaking a review of the practice. Carole McCartney et al., The Future of Forensic Bioinformation, Nuffield Council on Bioethics at 86 (May 2010), available at http://www.law.leeds.ac.uk/assets/files/research/ccjs/forensic-bioinformation-report.pdf.
49. See, e.g., James M. Curran & John S. Buckleton, Effectiveness of familial searches, 84 Sci. & Just. 164, 164 (2008). One recent article cited seventy searches since 2004, eighteen of which led to matches and thirteen to convictions. Jeffrey Rosen, Genetic Surveillance for All, Slate, Mar. 17, 2009, http://www.slate.com/id/2213958/. Another report suggests that as of April 2008, eight cases had been solved in this way. Nakashima, supra note 2, at A1; see also Richard Willing, DNA 'near matches' spur privacy fight, USA Today, Aug. 2, 2007, http://www.usatoday.com/news/nation/2007-08-02-dna_N.htm (citing fifteen cases); Richard Willing, Suspects get snared by a relative's DNA, USA Today, June 7, 2005, http://www.usatoday.com/news/nation/2005-06-07-dna-cover_x.htm (citing nine solved cases); National Policing Improvement Agency, National DNA Database Annual Report, available at http://www.npia.police.uk/en/14395.htm.
50. Legislation is presently pending in the Netherlands to allow familial searches, and Spain and Western Australia are also investigating the practice. Genetic Suspects: Global Governance of Forensic DNA Profiling and Databasing 177 (Richard Hindmarsh & Barbara Prainsack, eds. 2010).
51. Amelia Belalmy-Royds & Sonya Norris, New Frontiers in Forensic DNA Analysis: Implications for Canada's National DNA Data Bank, at 10, Parliamentary Information and Research Service (Mar. 3, 2009), http://www2.parl.gc.ca/Content/LOP/ResearchPublications/prb0829-e.pdf; see also Royal Canadian Mounted Police, 2008-2009 Annual Report, http://www.rcmp-grc.gc.ca/ dnaac-adncc/annurp/2008-2009-annurp-eng.htm#kinship.
52. Surrey Police, First successful prosecution after use of pioneering DNA technique, http://www.surrey.police.uk/media/news_item.asp?area=12&itemID=4293 (last visited Sept. 10, 2010).
53. Ram, supra note 8.
54. Alabama, California, Connecticut, Florida, Louisiana, Minnesota, Missouri, Montana, Nebraska, North Carolina, Oklahoma, Oregon, South Carolina, Washington, and Wyoming. Id.
55. Indiana, Iowa, Kentucky, Maryland, Ohio, and Wisconsin. Id.
56. Alaska, Georgia, Maine, Massachusetts, Michigan, Nevada, New Mexico, Rhode Island, Tennessee, Utah, and Vermont. Id.
57. Colorado, Illinois, North Dakota, and West Virginia. Id. At the time of the survey, New York was still reviewing the practice, but it has since announced that it will permit the reporting of inadvertent familial matches. See Peters, supra note 7.
58. Arizona, Arkansas, Delaware, Hawaii, Idaho, Kansas, Mississippi, New Hampshire, New Jersey, Pennsylvania, South Dakota, Texas, and Virginia. The District of Columbia also did not respond. Ram, supra note 8.
59. California Policy, supra note 6.
60. Md. Code Ann., Pub. Safety § 2-506(d) (West 2010).
61. Ram, supra note 8.
62. 62.Ram, supra note 8
63. See, e.g., Minn. Stat. §§ 609.117 (2009) (neither prohibiting nor providing for familial searches). In contrast, New York grants express statutory approval to conduct partial match searches, but until it announced an express policy in December 2009 that allowed reporting of inadvertent matches, it did not seem to be regularly engaged in familial searches. Ram, supra note 8; see also Duncan Carling, Note, Less Privacy Please, We're British: Investigating Crime with DNA in the U.K. and the U.S., 31 Hastings Int'l & Comp. L. Rev. 487 (2008).
64. Jonathan Saltzman, Director of crime lab quits post, Boston Globe, Mar. 10, 2007, at A1. The administrator, Robert Pino, disputed the claim that the practice was prohibited. Id.
65. See, e.g., Carole McCartney, The DNA Expansion Programme and Criminal Investigation, 46 Brit. J. Crimin. 175, 181 (2006); Williams & Johnson, supra note 44, at 245-46.
66. See, e.g., Daniel J. Grimm, Note, The Demographics of Genetic Surveillance: Familial DNA Testing and the Hispanic Community, 107 Colum. L. Rev. 1164 (2007); Lina Alexandra Hogan, Note, Fourth Amendment-Guilt By Relation: If Your Brother Is Convicted of a Crime, You Too May Do Time, 30 W. New Eng. L. Rev. 543 (2008); Kimberly A. Wah, Note, A New Investigative Lead: Familial Searching as an Effective Crime-Fighting Tool, 29 Whittier L. Rev. 909 (2008); Michael Seringhaus, The Evolution of DNA Databases: Expansion, Familial Search, and the Need for Reform (manuscript on file with author).
67. Bieber et al., supra note 39, at 1315-16 (emphasizing the value of familial searches as an investigative tool, but cautioning that "[e]very agency or country considering such methods should evaluate attendant policy, ethical, and legal implications") Greely et al., supra note 20, at 248, 255, 260 (concluding that there are no "persuasive constitutional or policy arguments for prohibiting or greatly limiting the use of this technique as a general matter," but noting that the questions of racial disparity might make it "wise to consider an expressly population-wide database rather than ending up with something that, through the extension to family members, becomes a large but racially biased database").
68. Bieber et al., supra note 39, at 1316.
69. Jules Epstein, "Genetic Surveillance" The Bogeyman Response to Familial DNA Inves-tigation, 2009 U. Ill. J.L. Tech. & Pol'y 141 (2009); Jessica D. Gabel, Probable Cause from Probable Bonds: A Genetic Tattle Tale Based on Familial DNA, 21 Hastings Women's L.J. 3 (2010).
70. Gabel, supra note 69, at 26-42.
71. 71 Gabel, supra note 69, at 31.
72. Gabel, supra note 69, at 37 (suggesting that the Fourth Amendment is triggered first by the request to re-lease the database lead's name, that such a request should require probable cause, and that compelling a sample from a potential source requires corroborating evidence beyond the DNA alone). My own views on the Fourth Amendment issue are expressed in Section III.B.
73. 73 Gabel, supra note 69at 42-57.
74. Epstein, supra note 69, at 142.
75. Epstein, supra note 69at 142-43.
76. Epstein, supra note 69 at 162-64 (responding that other methods of investigation are likewise discriminatoryand that discrimination alone is an insufficient reason to invalidate a beneficial law enforcementtechnique).
77. Epstein, supra note 69at 165 (arguing that the disruption primarily affects "the individual in the database," and that it will at worst be "de minimis").
78. See infra Section II.G.1.
79. E.g., Epstein, supra note 69, at 163-64; Bieber, supra note 39.
80. Bieber et al., supra note 39, at 1316.
81. Bureau of Justice Statistics, U.S. Dep't of Justice Correctional Population in the United States, 1996, at 58 tbl.4.12 (1999). The same study reported the percentage of convicted and unconvicted (typically awaiting trial) persons in the jails in 1996 as roughly fifty-fifty. Id. at 23 tbl.2.6.
82. Carolyn A. Smith & David P. Farrington, Continuities in antisocial behavior and parenting across three generations, 45 J. Child Psychol. & Psychiatry 230, 239 (2004). ("It thus appears that adult antisocial behavior in one or other G2 parent, rather than their childhood history of antisocial behavior, is linked to conduct problems in their G3 children.").
83. Carolyn A. Smith & David P. Farrington, Continuities in antisocial behavior and parenting across three generations, 45 J. Child Psychol. & Psychiatry 230, 239 (2004). ("It thus appears that adult antisocial behavior in one or other G2 parent, rather than their childhood history of antisocial behavior, is linked to conduct problems in their G3 children."). at 231.
84. Carolyn A. Smith & David P. Farrington, Continuities in antisocial behavior and parenting across three generations, 45 J. Child Psychol. & Psychiatry 230, 239 (2004). ("It thus appears that adult antisocial behavior in one or other G2 parent, rather than their childhood history of antisocial behavior, is linked to conduct problems in their G3 children."). at 230.
85. See infra Section II.G.2.
86. See, e.g., Epstein, supra note 69, at 170-71 (discussing the Hunt case).
87. See, e.g., Epstein, supra note 69, at 170-71 (discussing the Hunt case).
88. See, e.g., Epstein, supra note 69, at 170-71 (discussing the Hunt case).
89. Greely et al., supra note 20, at 258.
90. See, e.g., Jones, supra note 48 (describing system to do on-scene typing within an hour); Susan A. Greenspoon et al., Microchip Capillary Electrophoresis: Progress Toward and Integrated Forensic Analysis System, 10 Profiles in DNA 16 (2007), available at http://www.promega.com/profiles/1002/ProfilesinDNA_1002_16.pdf; Lisa Trigg, Touch DNA forensics kits streamlining pris-on investigations, Indiana Trib.-Star (July 22, 2010) (detailing new testing kits that allow investigators to determine who has touched an object).
91. See, e.g., Strengthening Forensic Science in the United States: A Path For-ward (The National Academies Press 2009); David L. Faigman, Anecdotal Forensics, Phrenology, and Other Abject Lessons from the History of Science, 59 Hastings L.J. 979, 989 (2008) ("[A]necdotal forensics may be particularly susceptible to confirmation bias."); Paul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 N.C. L. Rev. 163, 204 (2007).
92. Office of the Inspector General, U.S. Dep't of Justice, A Review of the FBI's Handling of the Brandon Mayfield Case 1 (2006), available at http://www.justice.gov/oig/special/s0601/final.pdf.
93. Office of the Inspector General, U.S. Dep't of Justice, A Review of the FBI's Handling of the Brandon Mayfield Case 1 (2006), available at http://www.justice.gov/oig/special/s0601/final.pdf at 3. But see id. at 13 (rejecting this as a cause).
94. Office of the Inspector General, U.S. Dep't of Justice, A Review of the FBI's Handling of the Brandon Mayfield Case 1 (2006), available at http://www.justice.gov/oig/special/s0601/final.pdf at 7, 10.
95. Advancing Justice Through the Use of Forensic DNA Technology: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security, 108th Cong. 46 (2003) (testimony of Peter J. Neufeld, Co-Director of the Innocence Project; member of New York State's Forensic Science Review Board).
96. Advancing Justice Through the Use of Forensic DNA Technology: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security, 108th Cong. 46 (2003) (testimony of Peter J. Neufeld, Co-Director of the Innocence Project; member of New York State's Forensic Science Review Board).
97. See Roth, supra note 31, at n.64.
98. McCartney, supra note 65, at 185.
99. McCartney, supra note 65 at 185.
100. McCartney, supra note 65 at 189.
101. McCartney, supra note 65 at 189
102. D.H. Kaye & Michael E. Smith, DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage, 2003 Wis. L. Rev. 413, 440-41.
103. Indeed, as some advocates of familial searches have written, "[b]eing compelled to assist in the criminal justice system, in this or any other way, may be annoying, but is common." Greely et al., supra note 20, at 256. But as one recent case attests, the particular power of genetic evidence to shape and influence an investigation can prove pernicious. See Kohler v. Englade, 470 F.3d 1104, 1107-08 (5th Cir. 2006) (addressing the § 1983 claim of man who refused to submit a DNA sample in a six-hundred-person dragnet to catch a serial rapist-killer, gave sample pursuant to warrant found to lack probable cause, was publicly labeled a suspect, and only learned two months later through a television report that he was excluded as the killer).
104. See, e.g., United States v. Weikert, 504 F.3d 1, 3-4 (1st Cir. 2007); Nicholas v. Goord, 430 F.3d 652, 670 (2d Cir. 2005). The Ninth Circuit observed, in upholding an offender collection statute, that it would be possible to locate a relative, United States v. Kincade, 379 F.3d 813, 818 n.7 (9th Cir. 2004), but also affirmed that the DNA profiles were to be used only for identity while rejecting the fear that retention of samples meant they "could be mined for more private information or otherwise misused in the future." Id. at 837-38.
105. Erica Haimes, Social and Ethical Issues in the Use of Familial Searching in Forensic Investigations: Insights from Family and Kinship Studies, 34 J.L. Med. & Ethics 263, 270 (2006); Williams & Johnson, supra note 44, at 244.
106. The frequency of misattributed paternity has proven difficult to measure, but studies suggest rates as low as 1 percent or as high as 30 percent in the population, though most hover in the 2-5 percent range. Bryan Sykes & Catherine Irven, Surnames and the Y Chromosome, 66 Am. J. Hum. Genetics 1417, 1418 (2000).
107. By way of illustration, a 15-allele autosomal match in a database the size of California's (over one million profiles) will turn up 1,600-4,200 potential leads. Y-STR screening of those matches, however, reduces that number to significantly fewer, on average. Murphy et al., supra note 39; see also Bieber et al., supra note 39, at 1315; Jones, supra note 48, at 24 (noting that the U.K. relied on Y-STR typing in recent familial search case).
108. Uta-Dorothee Immel et al., Y-chromosomal STR haplotype analysis reveals surnameassociated strata in the East-German population, 14 Eur. J. Hum. Genetics 577, 580 (2006).
109. Carling, supra note 63, at 501; Tania Simoncelli & Barry Steinhardt, California's Proposition 69: A Dangerous Precedent for Criminal DNA Databases, 34 J.L. Med. & Ethics 199, 203 (2006) (detailing how "databases created for one discrete purpose, despite the initial promises of their creators, eventually take on new functions and purposes" and citing the archetypal example of social security numbers).
110. See infra note 171 and accompanying text.
111. Gautam Naik, To Sketch a Thief: Genes Draw Likeness of Suspects, Wall St. J., Mar. 27, 2009, at A9. See generally Dov Fox, The Second Generation of Racial Profiling, 38 Am. J. Crim. L. (forthcoming Nov. 2010) (manuscript on file with author).
112. The sole restraint would be allegations of misuse, but the statutes governing misuse are woefully inadequate. See infra note 171.
113. See Nakashima, supra note 2.
114. The legal status of arrestee collection is still uncertain in the United States, but the Euro-pean Court of Human Rights has ruled that unqualified inclusion of arrestees and juveniles in the United Kingdom's database violated international privacy protections. S. v. United Kingdom, 2008 Eur. Ct. H.R. 1581, available at http://www.bailii.org/eu/cases/ECHR/2008/1581.html.
115. Another court recently held the typing and database retention of a DNA profile recovered from a victim's clothing without consent was a violation of the Fourth Amendment (but refused to apply the exclusionary rule in a later prosecution against the victim). United States v. Davis, 657 F. Supp. 2d 630, 663 (D. Md. 2009).
116. Murphy, supra note 22, at 754 n.149.
117. Murphy, supra note 22, at 755 n.151.
118. See supra Section II.B.
119. Haimes, supra note 105, at 269.
120. Bureau of Justice Statistics, U.S. Dep't of Justice, Criminal Victimization, 2005, at 9, tbl.9 (2006).
121. Haimes, supra note 105, at 269.
122. Jones, supra note 48, at 24. The UK has more permissive rules surrounding DNA collec-tion.
123. Jones, supra note 48, at 24. The UK has more permissive rules surrounding DNA collec-tion.
124. Jennifer Mnookin, The perils of expanding DNA searches to relatives, UCLA Today, May 8, 2007, http://www.today.ucla.edu/portal/ut/070508_dna-perils.aspx; see also Greely et al., supra note 20, at 259-60 (expressing reservations about widescale familial searching on the basis of concerns about racial discrimination). Professor Troy Duster has contextualized various DNA policies within the larger context of systematic biases in the criminal justice system. Troy Duster, DNA Dragnets and Race: Larger Social Context, History, and Future, 21 GeneWatch, Nov.-Dec. 2008, at 3, 3-5.
125. Bieber et al., supra note 39, at 1316.
126. Kaye & Smith, supra note 102, at 453 (citations omitted).
127. Id. at 454-55 (noting reduction from four times to two times if arrestees are included).
128. Thomas P. Bonczar, U.S. Dep't of Justice, Bureau of Justice Statistics, Preva-lence of Imprisonment in the U.S. Population, 1974-2001, at 1 (2003), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/piusp01.pdf.
129. For example, one student note argued that the impact was likely to be greatest for His-panics, citing larger family structures. Grimm, supra note 66.
130. See Greely et al., supra note 20, at 259.
131. Murphy et al., supra note 39.
132. See, e.g., 60 Minutes: A Not So Perfect Match (CBS television broadcast Mar. 23, 2007).
133. Jonathan Kahn, Race, Genes, and Justice: A Call to Reform the Presentation of Forensic DNA Evidence in Criminal Trials, 74 Brook. L. Rev. 325, 348 (2009).
134. Id. at 350. As one sociologist asserts, "On one hand... scientists routinely use racial categories in their research.... On the other hand, many scientists feel that racial classifications are meaningless and unscientific." Id. (quoting Michael Omi, Racial Identity and the State: The Dilemmas of Classification, 15 Law & Ineq. 7, 7 (1997)).
135. See Bruce Budowle et al., CODIS STR Loci Data from 41 Sample Populations, 46 J. Forensic Sci. 453, 453-89 (2001) (finding major populations in Hardy-Weinberg equilibrium).
136. See, e.g., Dorothy E. Roberts, Crime, Race, and Reproduction, 67 Tul. L. Rev. 1943 (1993) (discussing the racial construction of crime).
137. Bieber et al., supra note 39, at 1316.
138. Bieber et al., supra note 39, at 1316
139. The letters in response to a recent op-ed suggesting a universal database provide anecdo-tal support for this observation. See Letters to the Editor, N.Y. Times, Mar. 20, 2010, at A16,available at http://www.nytimes.com/2010/03/20/opinion/l20dna.html.
140. Kaye & Smith, supra note 102, at 459.
141. Greely et al., supra note 20, at 255.
142. See supra text accompanying notes 104-109.
143. See supra text accompanying notes 104-109.
144. See infra Part III.
145. Greg Griffin, Familial DNA software may catch on in catching criminals, Denver Post (November 17, 2009), http://www.denverpost.com/news/ci_13804045.
146. See, e.g., Murphy, supra note 22, at 752.
147. Denver District Attorney, Familial DNA Database Searches, http://www.denverda.org/DNA/Familial_DNA_Database_Searches.htm (last visited Sept. 9, 2010). Of course, as observed earlier, the three family search leads that caused DA Morrissey to encourage a change in the FBI rule change did not pan out. An additional twenty cases did not involve familial searching, but nonetheless involved an aspect related to partial matches. Id.
148. Memorandum from Michael Chamberlain, Deputy Attorney General, DNA Legal Unit, to Attorney General Brown, California Department of Justice, DNA Data Bank Program: Reporting "Partial Matches" to Law Enforcement 3 (June 6, 2007); see also Miller, supra note 10.
149. See Curran & Buckleton, supra note 49; Natalie Ram, The Mismatch Between Probable Cause and Partial Matching, 118 Yale L.J. Pocket Part 182, 185 (2009), http://thepocketpart.org/2009/04/13/ram.html (noting "substantial rate of false positives" for familialmatches); Thomas M. Reid et al., Use of sibling pairs to determine the familial searching efficiency of forensic databases, 2 Forensic Sci. Int'l 340, 342 (2008); Murphy et al., supra note 39, at 7.
150. See Hiibel v. Sixth Jud. Dist. Ct. of Nevada, 542 U.S. 177 (2004) (upholding statute requiring disclosure of name upon reasonable suspicion); California v. Byers, 402 U.S. 424 (1971) (upholding statute that requires drivers involved in accidents to stop and give name and address).
151. See Electronic Privacy Information Center, REAL ID Implementation Review: Few Benefits, Staggering Costs: Analysis of the Department of Homeland Security's National ID Program 4-5 (May 2008) (discussing "voluntary" nature of card).
152. It seems virtually impossible that a universal database could withstand constitutional scrutiny. The Fourth Amendment seems quite clearly, even among those who give it its least restric-tive interpretation, to prohibit the compulsory genetic sampling, without suspicion, of all U.S. citizens. See infra note 193. At best, such a database might be compiled through a quid pro quo-in order to get a driver's license, for instance, a person would have to submit a DNA sample, although even then the suspicionless use of that database for criminal justice purposes might raise constitutional problems.
153. For instance, procedural due process would require a positive entitlement of some kind, Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460 (1989), and even so might not "require the opportunity to prove a fact that is not material to the State's statutory scheme," United States v. Pool, No. 09-10303, 2010 WL 3554049, at *11 (9th Cir. Sept. 14, 2010) (quoting Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003)). Substantive due process privacy claims are difficult and disfavored. Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) ("As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended."). Hank Greely has raised the intriguing possibility of a claim based on "corruption of blood," which is pro-hibited by the U.S. and twenty-eight state constitutions. Greely et al., supra note 20, at 257.
154. Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976). A viable equal protection claim based on racial discrimination would have to prove intentional discrimination, yet familial searching at first glance does not seem to employ racial categories. On closer inspection, however, familial searching may involve some manner of facial racial classification. That is, because in most cases the racial identity of the actual source is not known, and because allelic frequencies vary among racial subgroups, investigators typically calculate match probabilities using racial assumptions. The recommendations of the FBI Scientific Working Group in fact encourages such an approach, noting that "[b]ecause we do not know the actual ethnic composition of offender databases, we can do a pragmatic set of calculations under an assumption that the database is 100 percent of each of the four major ethnic groups in the FBI allele-frequency database." Scientific Working Group on DNA Analysis Methods, Ad Hoc Committee on Partial Matches, SWGDAM Recommendations to the FBI Director on the "Interim Plan for the Release of Information in the Event of a 'Partial Match' at NDIS", 11 Forensic Sci. Communs. (Oct. 2009), http://www.fbi.gov/hq/lab/fsc/current/standard_guidlines/swgdam.html. The Report then recommends that the leads be considered probative only if at least one of the four racial groups shows a match likelihood greater than 1.0, and all groups return values greater than 0.1. Id. However, the technical intricacies of this argument might make it difficult for some courts to comprehend.
155. Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (citing Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995) and Loving v. Virginia, 388 U.S. 1, 11 (1967)). It might be argued that it does implicate the fundamental right to liberty and free association, or even some notion of a fundamental right to familial privacy, in which case the practice would receive heightened scrutiny. See e.g., Moore v. City of E. Cleveland, 431 U.S. 494 (1977); U.S. Dep't of Agric. v. Moreno, 413 U.S. 528 (1973) (invalidating as irrational a policy of denying food stamps to households with unrelated persons); Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925) (recognizing parental control over children's education).
156. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985).
157. Romer v. Evans, 517 U.S. 620, 632 (1996).
158. See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609, 619-20 (1984) ("[T]he personal affiliations that exemplify [the constitutional values deserving protection] are those that attend the creation and sustenance of a family.").
159. Davis v. Mississippi, 394 U.S. 721 (1969) (invalidating fingerprint dragnet of roughly seventy-five black youth on the grounds that it was intrusive and insufficiently tailored). The Court did, however, suggest that a more limited detention of persons for purposes of fingerprinting, especially if done with judicial approval, might survive constitutional scrutiny. Id. at 727-28.
160. It is the most natural amendment under which such a challenge would arise, however, especially given the Supreme Court's position that "if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process." United States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (clarifying Graham v. Connor, 490 U.S. 386, 394 (1989)).
161. DNA must be physically collected in a biological sample from an individual; it must then be typed and analyzed; that entry must be uploaded into a database, with possible retention of the physical sample; a search must be conducted of the database using a particular stringency; the search must return a list of leads; and then that list must be winnowed down, possibly by additional forms of testing (such as Y-STR typing).
162. Compare United States v. Pool, No. 09-10303, 2010 WL 3554049 (9th Cir. Sept. 14, 2010) (analyzing arrestee sampling using totality-of-circumstances test and finding limited collection reasonable under Fourth Amendment), and Anderson v. Commonwealth, 650 S.E.2d 702 (Va. 2007) (upholding state arrestee statute), with United States v. Mitchell, 681 F. Supp. 2d. 597 (W D. Pa. 2009) (holding federal arrestee collection statute unconstitutional), In the matter of the Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006) (finding arrestee collection unconstitutional), and Gorman v. Minnesota, 52-CV-05-684 (Minn. 5th Judicial Dist. Court. Dec. 15, 2005) (finding preconviction collection of DNA a constitutional violation). The U.S. District Court for the Northern District of California also recently denied a motion to enjoin the state statute providing for mandatory sampling of felony arrestees in California. See Haskell v. Brown, 677 F. Supp.2d 1187 (N.D. Cal. 2009) (order denying motion for preliminary injunction on grounds that claim lacked substantial likelihood of success).
163. The inadequacy of the typical approach is in part revealed by cases such as United States v. Davis, 657 F. Supp. 2d 630 (D. Ct. Md. 2009), in which the court had to conduct a detailed, sensitive inquiry due to the unusual factual circumstances. There, a crime victim's clothing was collected but not tested. It was later tested when the victim became a suspect (but then ultimately exculpated) in another offense, and the profile was placed in the database. Later still, the profile turned up as a database lead. Thus, disaggregating the inquiry was all but impossible to avoid.
164. See, e.g., Erin Murphy, Paradigms of Restraint, 57 Duke L.J. 1321, 1329-30 (2008).
165. Ferguson v. City of Charleston, 532 U.S. 67, 92 (2001) (Scalia, J., dissenting).
166. Johnson v. Quander, 440 F.3d 489, 498 (D.C. Cir. 2006) (citing Arizona v. Hicks, 480 U.S. 321 (1987)).
167. See Erin E. Murphy, Databases, Doctrine & the Future of Constitutional Criminal Pro-cedure, 37 Fordham Urb. L.J. 803, 810-21 (2010).
168. United States v. Weikert, 504 F.3d 1, 13, 5-17 (1st Cir. 2007); see also United States v. Pool, No. 09-10303, 2010 WL 3554049, at *15 (9th Cir. Sept. 14, 2010) (Lucero, J., concurring) ("Yet I stress that we do not purport to decide the hypothetical case in which a future litigant may demonstrate that CODIS loci do code for RNA... nor do we consider a case in which the nature of the genetic information stored in the CODIS database is changed from present practice."); United States v. Amerson, 483 F.3d 73, 86 (2d Cir. 2007). Given that new loci are already under development by the FBI, and that Y-STR typing has become common and widespread (and necessary in the case of familial searching), such reservations seem wise.
169. See, e.g., Steagald v. United States, 451 U.S. 204, 219 (1981) (noting Fourth Amendment rights are "personal in nature"); Rakas v. Illinois, 439 U.S. 128, 133-34 (1978).
170. Pool, 2010 WL 3554049, at *6 ("It is questionable whether the rights of the perpetrator (if ultimately identified through the use of familial comparisons) are violated.").
171. In response to the complaint, often made by courts, that scenarios of such governmental exploitation constitute "Hollywood fantasies," United States v. Kincade, 379 F.3d 813, 838 (9th Cir. 2004) (en banc), three points might be made. First, there is nothing in the misuse statutes that directly prohibits such activity. The federal statute limits disclosure of information for "law enforcement identification purposes," but nothing about "identification purposes" limits typing to the noncoding regions of the genome. 42 U.S.C. § 14132(b)(3)(A) (2006). In fact, the attorney general is specifically vested with the authority to perform "analysis of the deoxyribonucleic acid (DNA) identification information in a bodily sample," 42 U.S.C. § 14132(b), (c), without any requirement that such analysis be on the "junk" regions, and section (d) expressly allows further research for identification purposes, 42 U.S.C. § 14132(d). Second, recent grants from the National Institute of Justice affirm law enforcement's interest in broader aspects of genetic research, such as "Identifying and Communicating Genetic Determinants of Facial Features," "Determination of the Physical Characteristics of an Individual from Biological Stains," and "Gene Polymorphism and Human Pigmentation." See generally DNA.gov: Alternative Genetic Markers, DNA Initiative, http://www.dna.gov/research/alternative_markers/ (last visited Sept. 9, 2010). And third, the vast majority of states either have no misuse statutes or else word their misuse statute almost as broadly as the federal government. Only eight states have express prohibitions on testing offender DNA for medical, psychological or phenotypical information. See generally id.
172. Ferguson v. City of Charleston, 532 U.S. 67, 76 n.9 (2001); Chandler v. Miller, 520 U.S. 305, 313 (1997); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995); Skinner v. Ry. Labor Exec.s Ass'n, 489 U.S. 602, 616 (1989); Nat'l. H. Treasury Emp.s Union v. Von Raab, 489 U.S. 656, 665 (1989).
173. See, e.g., Nicholas v. Goord, 430 F.3d 652, 670 (2d Cir. 2005); Kincade, 379 F.3d at 837-38.
174. Such reasoning encounters difficulties with regard to inadvertent partial matches (as opposed to intentional ones). Inadvertent partial matches might be distinguished, and permitted, as a form of "plain view," in the sense that a lawful search for an exact match revealed a close partial match. But given the hazards of such an approach, see infra Section IV.B, and the ease of tailoring software and reporting requirements to conform to a constitutional standard, separate approaches for intentional and inadvertent matching need not be necessary.
175. 547 U.S. 103, 106 (2006).
176. 547 U.S. 103, 106 (2006). at 111.
177. 547 U.S. 103, 106 (2006).at 115. Interestingly, by way of additional comparison, the Court rejected the claim that one occupant's consent could overcome the other's nonconsent even though the consenting person might wish to "deflect suspicion raised by sharing quarters with a criminal." Id. at 116. The co-occupants right to exonerate, then, did not seem to overcome the other occupant's right to privacy from government intrusion.
178. A further analogy might be drawn to Steagald v. United States, 451 U.S. 204, 219 (1981), 451 U.S. at 219, in which the Court noted that the Constitution may require a search warrant to execute an arrest warrant for an individual in the home of a third party. Just as the law-abiding individual does not forfeit personal privacy merely by associating with the potential arrestee, so too should the law-abiding relative not be deemed to forfeit personal privacy by mere accident of biological relation.
179. 547 U.S. 843 (2006).
180. See, e.g., Thornton v. Lund, 538 F. Supp. 2d 1053, 1058-59 n.4 (E.D. Wis. 2008) (re-viewing cases and noting that prior to Randolph, many courts assumed that a co-occupant with a parolee was subject to the same expansive search scope, whereas Randolph called that presumption into doubt); Donald v. State, 903 A.2d 315, 321 (Del. 2006); cf. Brendlin v. California, 551 U.S. 249, 251 (2007) (holding that all occupants of a stopped vehicle, not just the driver, are "seized" under the Fourth Amendment).
181. Poolaw v. Marcantel, 565 F.3d 721, 725 (10th Cir. 2009).
182. 182 Poolaw v. Marcantel, 565 F.3d 721, 725 (10th Cir. 2009).
183. Poolaw v. Marcantel, 565 F.3d 721, 725 (10th Cir. 2009).at 730. The court cited to Ybarra v. Illinois, 444 U.S. 85, 91 (1979) for the principle that "mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause," and noted that "propinquity" need not be physical or geographical, but also included kinship and relatedness. Id. at 729-30.
184. See Murphy, supra note 22, at n.76 (describing informal databases, such as those col-lected in Excel spreadsheets or desktop programs).
185. United States v. Weikert, 504 F.3d 1, 12 (1st Cir. 2007); United States v. Amerson, 483 F.3d 73, 85 (2d Cir. 2007); Nicholas v. Goord, 430 F.3d 652, 670 (2d Cir. 2005); United States v. Kincade, 379 F.3d 813, 839 (9th Cir. 2004).
186. Cf. Davis v. Mississippi, 394 U.S. 721 (1969) (invalidating fingerprint dragnet on the grounds that it was intrusive and insufficiently tailored).
187. See, e.g., Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 454 (1990).
188. 388 U.S. 41 (1967).
189. 389 U.S. 347 (1967).
190. Berger, 388 U.S. at 58-60.
191. Berger, 388 U.S. at 58-60. at 63.
192. Pub. L. No. 90-351, tit. III, 82 Stat. 212 (codified as amended at 18 U.S.C. §§ 2510-2522 (1996)); see also Anuj Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 Stan. L. Rev. 553, 588-89 (2007) (recounting the history of communications privacy before Olmstead, Berger, and Katz). A "super-statute" such as Title III has the capacity not only to shape the actions that it directly regulates, but also to embody and impart fundamental precepts of society. William N. Eskridge, Jr. & John Ferejohn, Super-Statutes: The New American Constitutionalism, in The Least Examined Branch: The Role of Legislatures in the Constitutional State 325 (Richard W. Bauman & Tsvi Kahana eds., 2006). A comprehensive regulatory regime for DNA investigations might likewise help to "introduce or consolidate a norm or principle as fundamental," and to stabilize debates that arise as a result of the rapid pace of scientific development and inherent pressures to exploit new technologies. Id.
193. See, e.g., Florida v. Wells, 495 U.S. 1 (1990) (invalidating search under inventory exception where officer opened container despite absence of "standardized criteria or established routine") New York v. Burger, 482 U.S. 691 (1987) (inspection program of closely regulated junkyard business constituted "constitutionally adequate substitute" for warrant requirement); Camara v. Mun. Court of San Francisco, 387 U.S. 523 (1967) (conditioning constitutionality of housing inspections on probable cause as defined by existence of legislative or administrative standards). The terms of particular familial search policies or orders might be reviewed under conditions such as described by Professor Paul Giannelli in his thoughtful review of the issue, namely, where "[s]uch orders satisfy the Fourth Amendment reasonableness requirements if they are based on a carefully drawn statute or rule that provides certain safeguards." Paul C. Giannelli, Nontestimonial Identification Orders For DNA Testing, 44 Crim. L. Bull. 590, 608 (2008). Giannelli relied on statutes along with Hayes v. Florida, 470 U.S. 811, 817 (1985) and Kaupp v. Texas, 538 U.S. 626 (2003). In Kaupp, the Court left "open the possibility that, 'under circumscribed procedures,' a court might validly authorize a seizure on less than probable cause when the object is fingerprinting." 538 U.S. at 630 n.2 (citing Hayes, 470 U.S. at 817). The concurring opinion in the Ninth Circuit case approving pretrial sampling likewise cited the existence of a "programmatic" regime as critical to finding the search constitutional. United States v. Pool, No. 09-10303, 2010 WL 3554049, at *17-18 (9th Cir. Sept. 14, 2010) (Lucero, J., concurring).
194. Murphy, supra note 164, at 1345-46.
195. Examples include statutory provisions; the National DNA Index System Procedures Board, which is responsible for crafting the procedures and regulations governing both the acceptance and search of DNA profiles in the database; scientific working groups of the FBI (such as SWGDAM for DNA analysis methods); the National Institute of Standards and Technology, a nonregulatory federal agency within the Department of Commerce; and FBI executive regulations.
196. Jonathan Saltzman, State Police may hunt for a suspect using kin's DNA, Boston Globe, Apr. 17, 2007, at A1.
197. Jonathan Saltzman, State Police may hunt for a suspect using kin's DNA, Boston Globe, Apr. 17, 2007, at A1. Pino had also been quoted a year earlier in an article about familial searching, in which he stated that that technique was legal, but not used, in Massachusetts. Gareth Cook, Near match of DNA could lead police to more suspects, Boston Globe, May 12, 2006, at A1.
198. Saltzman, supra note 196.
199. Jessica Gabel, in her article on familial searching, sets forth a detailed set of proposed guidelines that she seems to suggest serve as ethical rather than legal constraints. Gabel, supra note 69, at 53-56. These recommendations are in some respects far more detailed than those I make here, which function more as points for debate or consideration than specific terms, but many concur with my own, including an exhaustion requirement, destruction of samples, and so on. Id. In addition, I make recommendations not covered in her article, while also agreeing with some recommendations that are not made here-such as a right of access for defense testing and a cause of action for damages in event of abuse. I differ with Professor Gabel on several points. For instance, she sets a sixteen-loci minimum and includes a battery of confirmatory processes (including kinship analysis, direct comparison, likelihood ratios, prioritization, and Y-STR testing). Id. at 55. I do not ultimately recommend one method over another. In addition, her proposal requires only "immediate" notification upon exclusion, whereas I would specify a time frame and numerical limits for testing for exclusion. See id. at 54.
200. See generally Ram, supra note 8.
201. My thanks to Glenn Cohen for this suggestion.
202. See generally Susan M. Wolf et al., Managing Incidental Findings in Human Subjects Research: Analysis and Recommendations, 36 J. L. Med. & Ethics 219 (2008) (noting that studies suggest, with varying reliability, roughly a 10 percent rate of misattributed paternity).
203. California Policy, supra note 6.
204. See supra text accompanying notes 39-42.
205. See supra text accompanying notes 39-42; Curran & Buckleton, supra note 49, at 164 ("[The] most straightforward way that genetics can contribute to lowering the impact on wrongly investigated families is by increasing the power of the technique by either adding further autosomal loci or by the use of mitochondrial DNA or the Y chromosome.").
206. See, e.g., Cowen & Thomson, supra note 20, at 643; Curran & Buckleton, supra note 49, at 165; Reid et al., supra note 40, at 342.
207. Miller, supra note 10.
208. Scientific Working Group on DNA Analysis Methods, Ad Hoc Committee on Partial Matches, SWGDAM Recommendations to the FBI Director on the "Interim Plan for the Release of Information in the Event of a 'Partial Match' at NDIS, 11 Forensic Sci. Communs. (Oct. 2009), http://www.fbi.gov/hq/lab/fsc/current/standard_guidlines/swgdam.html.
209. Indeed, the two may correlate. The Supreme Court has shown deference to the legislature in such situations, espousing a "strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is 'reasonable.' United States v. Watson, 423 U.S. 411, 416 (1976).
210. Such questions arise frequently in the field of genetic testing, and that literature could illuminate the legal discussion. See, e.g., Anneke Lucassen & Michael Parker, Revealing false paternity: some ethical consideration, 357 Lancet 1033 (2001).
211. California's policy has a form of such restraint, in that it permits the release of names only for "manageable" results. California Policy, supra note 6.
212. One jurisdiction has even begun dropping charges in exchange for a voluntary DNA sample. Debra Cassens Weiss, Calif. DA Dismisses Misdemeanor and Drug Charges in Exchange for DNA, A.B.A. J., Apr. 15, 2009, available at http://www.abajournal.com/news/article/calif._da_ dismisses_drug_and_misdemeanor_charges_in_exchange_for_dna/(describing the "spit and acquit" practice in Orange County, California).
213. Courts have approved the use of deliberate deception, such as agents posed as Taco Bell workers or sweepstakes officials, to collect DNA. See, e.g., Commonwealth v. Cabral, 866 N.E.2d 429 (Mass. App. Ct. 2007). But see Tom Jackman, No Court Order Issued for DNA in Rape Case, Wash. Post, Jan. 18, 2002, at B8 (reporting court's refusal to order girl to preserve tissue from abortion in order to aid in sexual assault prosecution of her father).
214. Nakashima, supra note 2, at A1 (describing the apprehension of the BTK killer through DNA of daughter's pap smear).