Fortuity and forensic familial identification

Stanford Law Review

Volumn 63, Issue 4, 2011, Pages 751-812

  Ram, Natalie ^a  

^a YALE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 79955753269     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (347)

1. Mitchell Landsberg, DNA Leads to Arrest in Serial Case, July 8, 2010, L.A. Times, at A1.
2. Natasha Singer, In Fighting Crime, How Wide Should a Genetic Net Reach?, N.Y. Times, July 25, 2010, at BU3.
3. Jack Leonard, DNA Check Missed in Sleeper Case, L.A. Times, July 15, 2010, at A1.
4. Maura Dolan, A New Tack in DNA Search, L.A. Times, July 10, 2010, at A1.
5. See Memorandum from Edmund G. Brown Jr., Att'y Gen., to All Cal. Law Enforcement Agencies and Dist. Att'ys Offices, DNA Partial Match (Crime Scene DNA Profile to Offender) Policy (2008) [hereinafter California Partial Match Policy], available at http://ag.ca.gov/cms_attachments/press/pdfs/n1548_08-bfs-01.pdf.
6. This Article uses the word "investigator" to describe the law enforcement personnel who follow up on (investigate) DNA leads provided by lab analysts, without regard to whether such leads result from fortuitous or deliberate partial matches. Laboratory personnel responsible for preparing DNA profiles for inclusion in the Combined DNA Index System (CODIS) and reviewing CODIS results are described, where relevant, as "analysts.
7. Jill Spriggs, Familial Search Procedure, in CAL-DNA Data Bank Technical Procedures Manual 27, 29 (2008) [hereinafter California Familial Search Procedure], available at http://www.aclunc.org/news/press_releases/asset_upload_file504 _8577.pdf (describing the "Ratiometer," which generates "kinship indices," and the "Rati-ometer Output Analyzer," which ranks offender profiles identified by the Ratiometer);
8. 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, 31 (2008) (describing "The Ratiometer," which examines allele frequency in the general population and the frequency of a given Y chromosome haplotype).
9. Jeffrey Rosen, Genetic Surveillance for All, Slate (Mar. 17, 2009), http://www.slate.com/id/2213958.
10. See id.
11. See Dolan, supra note 4.
12. Id.
13. Id.
14. Maura Dolan et al., Pizza Slice Helped Link Suspects to Grim Sleeper Serial Killings, Sources Say, L.A. NOW (July 7, 2010), http://latimesblogs.latimes.com/lanow/2010/ 07/pizza-slice-helped-link-suspect-to-grim-sleeper-serial-killings.html.
15. Id.
16. See id.
17. Elizabeth Joh identifies "three different uses of DNA evidence in the Grim Sleeper investigation that we should be concerned about."
18. Elizabeth Joh, A 'Familial' Net: We Mustn't Ignore the Perils of Genetic Data Mining, L.A. Times, July 10, 2010, at A27.
19. In addition to the two discussed below, Joh identifies a third source of controversy: "Two years ago, LAPD vice officers arrested a number of suspected johns not as part of a crackdown on prostitution but rather for the purpose of collecting their DNA. (Many of the Grim Sleeper's victims were prostitutes.) Such a technique is known as a DNA dragnet.".
20. Id.
21. See, e.g., Friedman v. Boucher, 568 F.3d 1119, 1130 (9th Cir. 2009) ("The warrantless, suspicionless, forcible extraction of a DNA sample from a private citizen violates the Fourth Amendment.");.
22. see also infra notes 191-92 and accompanying text.
23. Jessica Cerretani, Whodunit? Family Members' DNA May Lead Investigators to the Answers, but Using It as a Forensic Technique Brings Up Some Troubling Questions, Bos. Globe, Oct. 31, 2010, (Magazine), at 20;
24. Singer, supra note 2 (contrasting "[e]arly-adopter states like California and Colorado" with "wait-and-see states").
25. See Colo. Bureau of Investigation, DNA Familial Search Policy (Oct. 22, 2009) [hereinafter Colorado Familial Search Policy], available at http://www.denverda.org/DNA_Documents/Familial_DNA/CBI%20DNA%20Familial%20Search%20Policy%20Oct %202009%20-%20Signed.pdf.
26. See infra Part II.B.1.b.
27. See D.C. Code § 22-4151(b) (2010) ("DNA collected by an agency of the District of Columbia shall not be searched for the purpose of identifying a family member related to the individual from whom the DNA sample was acquired.");.
28. Md. Code Ann., Pub. Safety § 2-506(d) (LexisNexis 2010) (prohibiting "search[es] of the statewide DNA data base for the purpose of identification of an offender in connection with a crime for which the offender may be a biological relative of the individual from whom the DNA sample was acquired"). Maryland's statute is set to expire in in 2013 unless the state legislature acts to maintain it. See Act of May 13, 2008, ch. 337, 2008 Md. Laws 3221.
29. See infra Part II.B.1.a.
30. Frederick R. Bieber, Turning Base Hits into Earned Runs: Improving the Effectiveness of Forensic DNA Data Bank Programs, 34 J.L. Med. & Ethics 222, 225-26 (2006);
31. Jules Epstein, "Genetic Surveillance"-The Bogeyman Response to Familial DNA Investigation, 2009 J.L. Tech. & Pol'y 141;
32. Jessica D. Gabel, Probable Cause from Probable Bonds: A Genetic Tattle Tale Based on Familial DNA, 21 Hastings Women's L.J. 3 (2010);
33. Henry T. Greely et al., Family Ties: The Use of DNA Offender Databases to Catch Offenders' Kin, 34 J.L. Med. & Ethics 248 (2006);
34. 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 (2006);
35. Erin Murphy, Relative Doubt: Familial Searches of DNA Databases, 109 Mich. L. Rev. 291 (2010);
36. Stephen S. Owen & Tod W. Burke, DNA Databases and Familial Searching, 43 Crim. L. Bull. 617 (2007);
37. 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. & Ethics 234 (2006);
38. 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);
39. Daniel J. Grimm, Note, The Demographics of Genetic Surveillance: Familial DNA Testing and the Hispanic Community, 107 Colum. L. Rev. 1164 (2007);
40. 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);
41. Kimberly A. Wah, Note, A New Investigative Lead: Familial Searching as an Effective Crime-Fighting Tool, 29 Whittier L. Rev. 909 (2008). Of these, only a few have even noted the disjunction between fortuitous and deliberate partial matches in American state policies.
42. Bieber, supra, at 226 (noting that proactive familial searches have not been widely embraced in the United States);
43. Murphy, supra, at 341 (positing that "the distinction between intentional and inadvertent partial match searches should be considered largely artificial").
44. Greely et al., supra note 22, at 249.
45. Id.
46. Id.
47. William Goodwin, Adrian Linacre & Sibte Hadi, An Introduction to Forensic Genetics 7 (2007). Twenty-two of these sets are inherited identically by both sexes. In the last, the sex chromosomes, males inherit XY chromosomes, while females inherit XX. Murphy, supra note 22, at 294 n.13. Thus, the Y chromosome appears only in males.
48. Greely et al., supra note 22, at 249.
49. Genomic Science Program, SNP Fact Sheet, Genomics.energy.gov, http://www.ornl.gov/sci/techresources/Human_Genome/faq/snps.shtml (last visited Dec. 20, 2009) ("[M]ore than 99% of human DNA sequences are the same....").
50. John M. Butler, Forensic DNA Typing: Biology, Technology, and Genetics of STR Markers 85-86 (2d ed. 2005).
51. Greely et al., supra note 22, at 249.
52. Id. at 249-50.
53. Erin Murphy, The Art in the Science of DNA: A Layperson's Guide to the Subjectivity Inherent in Forensic DNA Typing, 58 Emory L.J. 489 (2008).
54. Murphy, supra note 22, at 295.
55. Id.
56. Id.
57. Bruce R. Korf, Human Genetics and Genomics 36 (3d ed. 2007) (defining Mendelian patterns of genetic inheritance). Identical twins, of course, are expected to have identical or nearly identical genetic sequences.
58. Daniel L. Hartl & Elizabeth W. Jones, Essential Genetics: A Genomics Perspective 544 (4th ed. 2006) (noting that identical twins are genetically identical because they arise from the splitting of a single fertilized egg).
59. Murphy, supra note 22, at 295;
60. Michael R. Seringhaus, The Problem Child: Forensic DNA Databases, Familial Search, and a Call for Reform 14 n.35 (May 2010) (unpublished manuscript), available at http://digitalcommons.law.yale.edu/ylsspps_papers/ 50 ("Barring mutation, normal parent-child pairs must share at least 13/26 alleles, in a distinctive pattern (at least one shared allele per locus); on average, they will share 15.7 al-leles.").
61. Greely et al., supra note 22, at 253; Seringhaus, supra note 36, at 14 n.35 ("Siblings can theoretically share anywhere from 0-26 alleles, but on average will share 16.7. 13 of these come from a 50% chance of each sib inheriting the same allele from a parent; additional alleles come from 1) parents possibly having 2 copies of an allele (i.e. being homozygous at that locus), or 2) parents sharing an allele. For an average pair of Caucasian siblings at 13 STR loci, there is 1 locus with no shared alleles, 7 loci with one shared allele, and 5 loci with both alleles shared.").
62. David R. Paoletti et al., Empirical Analysis of the STR Profiles Resulting from Conceptual Mixtures, 50 J. Forensic Sci. 1, 3 (2005) (reporting hypothetical shared allele counts among the 13 CODIS loci as 8.59 between random individuals, 10.95 between cousins, and 16.94 between siblings).
63. Thomas M. Reid et al., Use of Sibling Pairs to Determine the Familial Searching Efficiency of Forensic Databases, 2 Forensic Sci. Int'l: Genetics 340, 340 (2008).
64. See Greely et al., supra note 22, at 253.
65. See Butler, supra note 29, at 22.
66. See, e.g., R.I. Gen. Laws § 12-1.5-10(5) (2010) (forbidding use of DNA samples for purposes of obtaining information about "physical characteristics, traits or dispositions for disease");
67. Utah Code Ann. § 53-10-406(1) (LexisNexis 2010) (requiring bureau to "ensure that the DNA identification system does not provide information allowing prediction of genetic disease or predisposition to illness").
68. Elizabeth Pennisi, DNA Study Forces Rethink of What It Means to Be a Gene, 316 Science 1556, 1556 (2007). Note that although we frequently refer to "the human genome," no such singular thing exists because individual humans, apart from identical twins, differ at the genetic level at least in part.
69. Id. Bases are "expressed" when they are, in effect, active for purposes of transcription to RNA and translation into proteins.
70. Id.
71. Id. at 1557.
72. See Butler, supra note 29, at 241.
73. See id. at 248-49. A new study indicates that mtDNA may actually be far less homogeneous than previously believed, and that the frequency of some genetic variants differs considerably between different tissue in the same individual.
74. Yiping He et al., Hetero-plasmic Mitochondrial DNA Mutations in Normal and Tumour Cells, 464 Nature 610 (2010).
75. Butler, supra note 29, at 241.
76. See id.
77. See Murphy, supra note 31, at 494.
78. Courtney Lerch, Tod W. Burke & Stephen S. Owen, Familial DNA: It's All in the Family, Police & Security News, Sept.-Oct. 2008, at 56, 57.
79. DNA Identification Act of 1994, Pub. L. No. 103-322, § 210304, 108 Stat. 2065, 2069 (codified as amended at 42 U.S.C. § 14132 (2006)).
80. See Murphy, supra note 22, at 296. Technically, CODIS is the name for the software that the FBI maintains and participating agencies use to search the available databases, but the name has come to refer more broadly to the national database itself.
81. See id. at 295-96.
82. See 42 U.S.C. § 14132(a) (authorizing the Director of the FBI to "establish an index of... DNA identification records of... persons convicted of crimes," as well as indices of "analyses of DNA samples recovered from crime scenes," "recovered from unidentified human remains," and "voluntarily contributed from relatives of missing persons").
83. See Murphy, supra note 22, at 296-97 ("If a search conducted in the national database reveals a match, then the FBI facilitates the disclosure of information between the jurisdictions according to FBI policy. In contrast, a search within a jurisdiction or locality that turns up a match can be dealt with according to that jurisdiction's own rules.").
84. For example, NDIS rules set forth the thirteen "core loci" that constitute the CODIS standard profile. See FBI Lab., National DNA Index System (NDIS) DNA Data Acceptance Standards: Operational Procedures 3 (rev. 2005).
85. See 42 U.S.C. § 14132(a)(1) (amending the scope of genetic profiles that may be indexed by the FBI to include profiles of "persons who have been charged in an indictment or information with a crime" and "other persons whose DNA samples are collected under applicable legal authorities").
86. Murphy, supra note 22, at 292.
87. See id.
88. Maura Dolan & Jason Felch, Tracing a Suspect Through a Relative, L.A. Times, Nov. 25, 2008, at A1.
89. See generally Combined DNA Index Sys., Bulletin No. BT072006, Interim Plan for the Release of Information in the Event of a "Partial Match" at NDIS (2006).
90. Tania Simoncelli, Dangerous Excursions: The Case Against Expanding Forensic DNA Databases to Innocent Persons, 34 J.L. Med. & Ethics 390, 390 (2006).
91. State Laws on DNA Data Banks, Nat'l Conf. St. Legislatures (Feb. 25, 2010), http://www.ncsl.org/default.aspx?tabid=12737 (identifying forty-seven states requiring that all convicted felons provide a DNA sample for database retention).
92. See id. (Arkansas, Delaware, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Ohio, South Carolina, Texas, Utah, Vermont, and Wisconsin).
93. See id. (Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Kansas, Louisiana, Maryland, Michigan, Minnesota, Missouri, New Mexico, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Vermont, and Virginia); see also 28 C.F.R. § 28.12(b) (2010) (requiring DNA sampling from federal arrestees and "non-United States persons who are detained under the authority of the United States").
94. CODIS-NDIS Statistics, Fed. Bureau Investigation, http://www.fbi.gov/about -us/lab/codis/ndis-statistics (last visited Jan. 24, 2011).
95. Ellen Nakashima, From DNA of Family, a Tool to Make Arrests, Wash. Post, Apr. 21, 2008, at A1.
96. See id.
97. See CODIS-NDIS Statistics, supra note 67.
98. Steinberger & Sims, supra note 6, at 30.
99. Murphy, supra note 22, at 297 (footnotes omitted).
100. Marjan Sjerps & Ate D. Kloosterman, On the Consequences of DNA Profile Mismatches for Close Relatives of an Excluded Suspect, 112 Int'l J. Legal Med. 176, 176 (1999).
101. See California Familial Search Procedure, supra note 6, at 29;
102. Colorado Familial Search Policy, supra note 18. Texas has also adopted specialized software for conducting deliberate searches for partial matches, but relevant policy statements reveal little about how this software operates.
103. See Tex. Dep't of Pub. Safety, Standard Operating Procedures: Partial Matches and Familial Searches 1 (May 25, 2010) (on file with author) [hereinafter Texas Partial Match Policy]; Tex. Dep't of Pub. Safety, Standard Operating Procedures: Searches 3 (May 25, 2010) (on file with author) [hereinafter Texas Search Policy].
104. See Murphy, supra note 22, at 300 & n.42 (explaining that most experts agree that current CODIS software "does a poor job of identifying true leads in familial searches").
105. Id. at 300.
106. California Familial Search Procedure, supra note 6, at 29; Colorado Familial Search Policy, supra note 18.
107. See Reid et al., supra note 39, at 342.
108. See id. at 340.
109. See id.
110. Id. at 341 (employing both allele sharing and kinship matching methods of analysis).
111. Other studies have reached similar conclusions, finding that a true familial relationship is the top match only about half of the time, and that a close genetic relative in the database will generally appear in the top one hundred matches.
112. Frederick R. Bieber, Charles H. Brenner & David Lazer, Finding Criminals Through DNA of Their Relatives, 312 Science 1315, 1315 (2006) (finding that, in a 50,000 profile database, a relative is the top match about half of the time and "has a 99% chance of appearing among the 100 largest" likelihood ratios);
113. James M. Curran & John S. Buckleton, Effectiveness of Familial Searches, 84 Sci. & Just. 164, 166 (2008) (using allele counting and likelihood ratio analysis methods, and finding a 72-78% probability that a true sibling will be among the top 100 matches).
114. See Reid et al., supra note 39, at 342.
115. The study found that "in cases where a high likelihood ratio exists between two individuals familial searching may indeed be an effective investigative tool. However, since there is no way to know a priori the strength of a match between a profile in CODIS and a possible suspect relative there is no assurance that a familial search will be of use, particularly when it comes to siblings." Id. (emphasis added).
116. See Murphy, supra note 22, at 302 (observing that "[t]he picture of familial searching in the United States is considerably murkier, both formally and informally").
117. See, e.g., Minn. Stat. Ann. §§ 299C.155, 609.117 (West 2010) (neither prohibiting nor providing for partial matching).
118. In several instances, sources within state laboratories requested anonymity in reporting. Accordingly, source names are not disclosed for any state. This information is on file with the author.
119. As set forth in Part I, this Article employs the language of fortuitous and deliberate partial matching throughout, as these terms better account for the similarities between these two types of partial matches. Most accounts of partial matching, however, employ the term "partial matching" only to refer to fortuitous partial matching, while describing deliberate partial matching as "familial searching." In my survey, I employed the more popular, though less precise, terminology in order to limit confusion.
120. The sources of each state's information are compiled in Appendix A.
121. Illinois and Virginia indicated that, while their policies are in development, they do not report any partial matches. North Dakota stated that while its policy remains pending, it will consider both fortuitous and deliberate matching on a case-by-case basis. It reported that neither had been reported or undertaken to date. These interim approaches are not included in the data presented below.
122. Alabama, Arizona, California, Colorado, Connecticut, Florida, Louisiana, Minnesota, Missouri, Montana, Nebraska, New York, North Carolina, Oklahoma, Oregon, South Carolina, Texas, Washington, and Wyoming. The figures and data presented in this Part build on work first published in Science Progress.
123. 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.
124. Appendix A for a complete table setting forth policy types and noting whether relevant policies are written.
125. Alabama, Arizona, Florida, Louisiana, Minnesota, Missouri, Montana, New York, North Carolina, Oklahoma, Oregon, South Carolina, Washington, and Wyoming. As discussed below in this Subpart, Connecticut's policy is vague with respect to deliberate partial matches, while it clearly permits reporting fortuitous partial matches.
126. See E-mail from Forensic Lab. Servs., Wash. State Police, to author (Aug. 13, 2009) (on file with author) [hereinafter Washington Partial Match Policy] (providing an extract from Washington's Convicted Offender/CODIS Standard Operating Procedures).
127. Wyo. State Crime Lab., CODIS Technical Manual §§ 11.1-.2 (2d ed. 2009) (on file with author) (some emphasis omitted) (setting forth "WSCL Partial Match Policy"). The lab manual defines a "partial match" as a "DNA match made during a standard SDIS search, which does not identify an individual, but may be an indication of a familial relationship between the DNA donors." A "familial search" is a "CODIS search performed with the sole purpose of identifying possible genetic relationships between DNA sample donors." N.Y. Comp. Codes R. & Regs. tit. 9, § 6192.1(s) (2010) (emphasis omitted).
128. Jeremy W. Peters, New Rule Allows Use of Partial DNA Matches, N.Y. Times, Jan. 25, 2010, at A12;
129. Press Release, N.Y. State Div. of Criminal Justice Servs., Forensic Science Commission Approves Regulations Governing "Partial-Match" DNA (Dec. 13, 2009), available at http://www.criminaljustice.state.ny.us/pio/press_releases/2009-12 -13_pressrelease.html.
130. E-mail from Fla. Dep't of Law Enforcement to author (July 15, 2009) (on file with author) [hereinafter Florida Partial Match Policy] (quoting Florida CODIS Match Procedures).
131. E-mail from Portland Forensic Lab. to author (Aug. 14, 2009) (on file with author) (disclosing Oregon's partial match policy).
132. Virginia recently acquired Colorado's software for deliberate partial matching, and the state is now in the process of examining and validating that software for use in Virginia.
133. Frank Green, New Va. DNA Searches Possible, Rich. Times-Dispatch, Jan. 6, 2011, at A1;
134. E-mail from Va. Dep't of Forensic Sci. to author (Jan. 7, 2011) (on file with author). West Virginia is presently considering draft legislation that would authorize both fortuitous and deliberate partial matching. See infra note 167. Other policy revisions are underway or in contemplation in Illinois and North Dakota.
135. See California Partial Match Policy, supra note 5.
136. Colorado Familial Search Policy, supra note 18, at 1.
137. See Texas Partial Match Policy, supra note 74; Texas Search Policy, supra note 74. Texas adopted these policies effective May 25, 2010.
138. See NSP Crime Lab., Release of Information to Law Enforcement Agencies in the Event of a "Partial Benchwork Match," in DNA Databank Procedures Manual (2008) (on file with author) [hereinafter Nebraska Partial Match Policy].
139. California Partial Match Policy, supra note 5, at 2. Nebraska does not differentiate conditions for fortuitous and deliberate partial matching, requiring that any partial match reported to investigators must be in connection with a "crime of violence" with "no other available investigative information." Nebraska Partial Match Policy, supra note 103, at 1.
140. Colorado Familial Search Policy, supra note 18, at 2. Colorado's seriousness condition may not actually act as much of a constraint. See infra notes 149-50 and accompanying text.
141. Texas Partial Match Policy, supra note 74, at 2, 4.
142. See id.
143. The District of Columbia, Indiana, Ohio, and Wisconsin.
144. D.C. Code § 22-4151(b) (2010).
145. See infra note 117 and accompanying text (discussing Maryland statute).
146. For information regarding whether states' policies are written or unwritten, see Appendix A.
147. Alaska, Delaware, Georgia, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Mississippi, Nevada, New Hampshire, New Mexico, Rhode Island, South Dakota, Tennessee, Utah, and Vermont. A caveat is needed: Although Maine will not release partial match information obtained during a database search, it will alert investigators about a partial match between a crime scene sample and a specific reference sample obtained from a particular suspect. In these instances, Maine requires that the samples match one allele at each locus. As such information is not the result of database searching, which is the focus of this Article, I have classified Maine as reporting neither fortuitous nor deliberate partial matches. (Virginia presently permits similar kinds of reporting, although it did not specify thresholds for such a match. As discussed elsewhere, Virginia is in the process of implementing a deliberate partial matching regime. See supra note 99.).
148. For example, New Hampshire and Utah. Despite efforts to formally approve some form of partial matching, both North Dakota and West Virginia reported that they, too, had yet to face a situation involving a fortuitous partial match.
149. 515 Mass. Code Regs. 2.14(2) (LexisNexis 2010) (emphasis added). New York's regulations employ similar language. See N.Y. Comp. Codes R. & Regs. tit. 9, § 6192.3(c) (2010) ("For purposes of searches of the DNA databank, a minimum of four loci shall be provided by a laboratory requesting a forensic DNA profile search against the DNA databank. Generally, all available loci associated with a forensic DNA profile shall be searched in the DNA databank. Notwithstanding this requirement, the laboratory may, at its discretion, request that a search be performed using fewer loci if there is an investigative need and sufficient scientific reasons which support using fewer than four loci in a particular case."). New York, like Massachusetts, declined to interpret this language as authorizing partial matching of any kind. Instead, as discussed above, New York established new regulations specific to partial matching. See supra notes 95-96 and accompanying text.
150. Jonathan Saltzman, Director of Crime Lab Quits Post, Bos. Globe, Mar. 10, 2007, at A1.
151. See id.
152. Md. Code Ann., Pub. Safety § 2-506(d) (LexisNexis 2010).
153. Arkansas, Delaware, Indiana, Iowa, Kentucky, Louisiana, Massachusetts, Mississippi, Montana, New Hampshire, New Mexico, North Carolina, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, and Utah. Massachusetts presents a confusing case; as previously described, existing state regulations appear to permit all manner of partial matching, but the state-by unwritten policy-does not engage in any. As the most salient portion of Massachusetts's policy is unwritten, I have classified the state among those operating under unwritten policies.
154. Delaware, Iowa, Kentucky, Massachusetts, Mississippi, New Hampshire, New Mexico, Rhode Island, South Dakota, Tennessee, and Utah.
155. See D.C. Code § 22-4151(b) (2010); Md. Code Ann., Pub. Safety § 2-506(d) (LexisNexis 2010).
156. See R.I. Gen. Laws § 12-1.5-10(5) (2010) (forbidding the use of DNA samples "for the purpose of obtaining information about physical characteristics, traits or predispositions for disease");.
157. Utah Code Ann. § 53-10-406(1) (LexisNexis 2010) (directing that bureau must "ensure that the DNA identification system does not provide information allowing prediction of genetic disease or predisposition to illness").
158. Alabama, Arizona, California, Colorado, Connecticut, Florida, Minnesota, Missouri, Nebraska, New York, Oklahoma, Oregon, Texas, Washington, and Wyoming.
159. Alabama, Arizona, Connecticut, Florida, Minnesota, Missouri, Nebraska, Oklahoma, Oregon, Texas, Washington, and Wyoming.
160. Alaska, Georgia, Maine, and Michigan.
161. See D.C. Code § 22-4151(b) (2010); Md. Code Ann., Pub. Safety § 2-506(d) (LexisNexis 2010); N.Y. Comp. Codes R. & Regs. tit. 9, § 6192.3(e)-(f) 2010.
162. Alabama, Arizona, California, Colorado, Connecticut, Florida, Minnesota, Missouri, Nebraska, New York, Oklahoma, Texas, Washington, and Wyoming. Of these, lab personnel in two states-Nebraska and Washington-indicated during phone interviews that their laboratories do not conduct additional genetic analysis like Y-STR testing on-site, and that they would merely recommend to investigators that such analysis be obtained once partial match information is turned over. For both, however, written policies on file make clear mention of Y-STR testing, and Washington's policy explicitly states, while Nebraska's implies, that such testing will precede the release of partial match information to investigators. I therefore group these states with others recommending or requiring prerelease Y-STR analysis.
163. Arizona, California, Colorado, Connecticut, Florida, Nebraska, North Carolina, Oklahoma, Oregon, Texas, and Washington. Arizona reports that although its written policy does not specify that the two profiles at issue share a minimum number of alleles, such a requirement is imposed by implication and practice. See Appendix B for a complete table setting forth various restrictions imposed by state partial matching policies, and which states have adopted which restrictions.
164. See Ted Staples, Chair, Scientific Working Grp. on DNA Analysis Methods, Address at the Genetic Information Work Group 32-33 (June 24, 2008) (transcript available at http://www.ipad.state.mn.us/docs/geninfo17.pdf) (setting forth SWGDAM's recommendations regarding familial identification practices).
165. See id. at 33.
166. "Single source" means a DNA profile determined to be from a single individual.
167. See California Partial Match Policy, supra note 5, at 1.
168. See id.
169. See Colorado Familial Search Policy, supra note 18, at 2;
170. Nebraska Partial Match Policy, supra note 103, at 1;
171. Texas Partial Match Policy, supra note 74, at 2-4.
172. See Colorado Familial Search Policy, supra note 18, at 2; Texas Partial Match Policy, supra note 74, at 3-4.
173. Colorado Familial Search Policy, supra note 18, at 1.
174. Colorado's new software takes allele frequency into account in an attempt to make better use of the CODIS loci in correctly identifying familial relationships. It is far from clear, however, that even this new software is sufficiently effective at this task. Indeed, one study has suggested that familial identification methods including kinship matching (the method of analysis on which the Colorado software appears to rely) will correctly identify a sibling pair as the first hit among partial match results less than half of the time.
175. Reid et al., supra note 39, at 341. The high rate of false positives for this methodology led the researchers to conclude that "for sibling relationships the data shown here is not compelling enough to recommend that it be done in every case.".
176. Id. at 342.
177. Colorado Familial Search Policy, supra note 18, at 2.
178. See id. at 3 (identifying information sources from which law enforcement can conduct "a full background check of the identified individual and family members" and investigative records that should be used to exclude a partially matching offender's relatives as possible suspects).
179. Id. at 4 (noting "[p]otential issues constituting reasons for delaying contact with family members," including the "unknown child" issue (the "possibility that a father is not aware of the existence of an offspring"), the "misbelieved paternity" issue (the "possibility that a family might have assumed a child's father is someone else"), and "other possible family privacy concerns").
180. See Texas Partial Match Policy, supra note 74, at 2, 4.
181. See id. at 2, 4.
182. California Partial Match Policy, supra note 5, at 2.
183. Colorado Familial Search Policy, supra note 18, at 2.
184. Nebraska Partial Match Policy, supra note 103, at 1.
185. Texas Partial Match Policy, supra note 74, at 2, 4.
186. Colorado Familial Search Policy, supra note 18, at 1.
187. P. Solomon Banda, Police Debate Use of Family DNA to ID Suspects, Msnbc.com (Feb. 9, 2010), http://www.msnbc.msn.com/id/35317812/ns/technology_and_science -science. He was targeted for investigation based on his brother's presence in the state offender database.
188. Jim Spellman, Using Relative's DNA Cracks Crime, but Privacy Questions Raised, CNN.com (Nov. 18, 2009), http://www.cnn.com/2009/CRIME/11/17/colorado.family.dna.
189. Interestingly, only a few years ago, Mitch Morrissey, Denver's District Attorney and a prominent advocate of partial matching, explained that partial matching should be used for serious crime, stating: "This isn't [about] car break-ins...." Dolan & Felch, supra note 62.
190. See Texas Partial Match Policy, supra note 74, at 2, 4.
191. Alabama, Arizona, California, Colorado, Connecticut, Florida, Minnesota, Missouri, Nebraska, Oklahoma, Texas, and Washington. Notably, Missouri and Oklahoma were the only states to report that they presently conduct or plan to conduct routine Y-STR analysis for all male offenders, and only Oklahoma explicitly stated that it intends to store these profiles in a permanent database. Other states conducting Y-STR analysis, or commissioning such analysis from outside labs, reported doing so only on a case-by-case basis.
192. Arizona, California, Colorado, Connecticut, Florida, Nebraska, Oklahoma, Oregon, Texas, and Washington.
193. California, Colorado, Florida, Nebraska, New York, Oregon, Texas, Washington, and Wyoming.
194. Alabama, Arizona, Florida, Louisiana, Minnesota, Missouri, Montana, New York, North Carolina, Oklahoma, Oregon, South Carolina, Washington, and Wyoming. See also discussion supra Part II.B.1.a. Recall that Connecticut, which permits at least fortuitous partial matching, did not expressly rule out deliberate partial matching in discussing its policy with me.
195. Scientific Crime Detection Laboratory, Alaska Dep't Pub. Safety, http://www.dps.state.ak.us/CrimeLab (last visited May 19, 2010) (identifying Alaska's DNA/CODIS service as part of the state scientific crime detection laboratory, a program under the state Department of Public Safety);
196. Forensic Biology (DNA), Ga. Bureau Investigation, http://dofs.gbi.georgia.gov/00/channel_title/0,2094,75166109_75728566,00.html (last visited May 19, 2010) (identifying Georgia's DNA lab as a "section of the Georgia Bureau of Investigation");
197. Forensic Science Division-State Crime Lab, Mont. Dep't Just., http://www.doj.mt.gov/enforcement/crimelab (last visited May 19, 2010) (identifying Montana's DNA analysis unit as under the aegis of the state Department of Justice).
198. Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 Calif. L. Rev. 721, 754 (2007) (observing that even independent testing of DNA evidence "is often [performed] by laboratories primarily beholden to government contracts and hostile to defense interests").
199. See, e.g., Florida Partial Match Policy, supra note 97 (limiting partial matching to "moderate stringency" matches resulting from a "CODIS Autosearch"); Washington Partial Match Policy, supra note 93 (addressing partial matches uncovered during routine "moderate stringency" searches).
200. See Murphy, supra note 22, at 297.
201. See id.
202. Allelic dropout is failure to detect an allele within a sample resulting from the failure of an allele to amplify during the polymerase chain reaction. See Butler, supra note 29, at 133. Allelic dropout "commonly results from degraded or low quantity DNA samples," and may also arise "as a result of genetic mutations that cause an allele not to amplify properly." Murphy, supra note 31, at 506.
203. California, Colorado, Florida, Nebraska, New York, Oregon, Texas, Washington, and Wyoming.
204. Nakashima, supra note 68.
205. See id.
206. See Combined DNA Index Sys., supra note 62.
207. Oregon reported that its lab does not engage in "aggressive" practices like deliberate partial matching, although it will relay information derived from fortuitous partial matches.
208. On the whole, states permitting partial matching have done so largely through policies defying significant public oversight. None of the nineteen states permitting partial matching have enacted legislation expressly authorizing the practice. West Virginia continues to pursue this path, but without success thus far.
209. See S.B. 197, 79th Leg., 2d Sess. (W. Va. 2010); H.B. 3211, 79th Leg., Reg. Sess. (W. Va. 2009).
210. See California Partial Match Policy, supra note 5; Colorado Familial Search Policy, supra note 18.
211. Maura Dolan & Jason Felch, State Offers Police Extra DNA Tool; California Will Use Partial Matches from Relatives in Its Genetic Database to Try to Track Down Criminals, L.A. Times, Apr. 26, 2008, at A1 (discussing California's policy);
212. Banda, supra note 150 (discussing California's and Colorado's policies).
213. Louisiana, Montana, North Carolina, and South Carolina.
214. Alabama, Arizona, Florida, Minnesota, Missouri, Oklahoma, Oregon, Washington, and Wyoming.
215. See Nebraska Partial Match Policy, supra note 103; Texas Partial Match Policy, supra note 74.
216. See N.Y. Comp. Codes R. & Regs. tit. 9, § 6192.3(e)-(f) (2010).
217. See, e.g., Peters, supra note 96.
218. Carole McCartney, The DNA Expansion Programme and Criminal Investigation, 46 Brit. J. Criminology 175, 188-89 (2006) (identifying possible areas for "mistake, mis-targeting and misinterpretation" in DNA analysis and identification, as well as "the potential for negative impacts upon police investigative practice" (citation omitted)); cf. infra Part III.C.3.
219. Kim Zetter, DNA Sample from Son Led to Arrest of Accused 'Grim Sleeper,' Wired (July 12, 2010), http://www.wired.com/threatlevel/2010/07/dna-database.
220. See Nakashima, supra note 68; see also Dolan & Felch, supra note 62 (reporting that British investigators have successfully employed partial matching in eighteen cases). The United Kingdom keeps its partial matching policy well hidden, refusing to make it available to reporters or the public.
221. See Rosen, supra note 7 (noting that Denver District Attorney Mitch Morrissey began advocating for deliberate partial matching because fortuitous partial matches only "occur unexpectedly and infrequently," and so are "unlikely to produce lots of investigative leads"). Of course, trying to generate "lots of investigative leads" may be a double-edged sword. As discussed below, the deliberate search for partial matches may generate "a list of hundreds of potential relatives', none of whom, on closer inspection, turn out to be genetically related to the perpetrator.".
222. Frederick R. Bieber & David Lazer, Guilt by Association: Should the Law Be Able to Use One Person's DNA to Carry Out Surveillance on Their Family?, New Scientist, Oct. 23, 2004, at 20.
223. Fortuitous partial matches are less likely to suffer from this overabundance of potential leads because they result haphazardly from routine database searches nominally designed to look for exact matches.
224. See, e.g., Bieber, supra note 22, at 225-26 (discussing the case of Darryl Hunt as a favorable outcome of partial matching).
225. See Murphy, supra note 22, at 303-27. These areas of concern do not consider the actual efficacy of partial matching procedures; for the sake of argument, Murphy assumes that, "in essence, familial searches work. That is,... near-miss searches, as a basic scientific and statistical matter, point directly enough toward potential perpetrators to be useful... [although] they also generate a limited number of false leads.".
226. Id. at 304.
227. Id. at 305.
228. Seringhaus, supra note 36, at 70.
229. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) ("An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.").
230. Murphy, supra note 22, at 308.
231. See Greely et al., supra note 22, at 258-59;
232. D.H. Kaye & Michael E. Smith, DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage, 2003 Wis. L. Rev. 413, 452-59;
233. Murphy, supra note 22, at 321-25; Seringhaus, supra note 36, at 70-72.
234. CODIS now aggregates profiles for nearly all convicted (and many arrested) persons throughout the United States, and so disparities in the offender population are replicated in CODIS. African American males are therefore overrepresented in the CODIS population.
235. Thomas P. Bonczar, Bureau of Justice Statistics, U.S. Dep't of Justice, Prevalence of Imprisonment in the U.S. Population, 1974-2001, at 1 (2003), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/piusp01.pdf (explaining that the rate of incarceration for adult black males is more than six times greater than for adult white males). The rate of incarceration for Hispanic males is also disproportionate-almost three time that of white males.
236. Id.
237. Greely et al., supra note 22, at 259.
238. See Grimm, supra note 22, at 1175-85.
239. Legal arguments based on equal protection are unlikely to gain traction in the absence of evidence of discriminatory intent. See Washington v. Davis, 426 U.S. 229, 239-42 (1976);.
240. see also Greely et al., supra note 22, at 259 (discounting equal protection claims founded on disparate impact alone, but acknowledging that this disparity, "like racial profiling,... does seem fundamentally unfair").
241. See Kaye & Smith, supra note 185, at 455-56 (observing that, if all arrestees are included in the database, the result may be functionally indistinguishable from a universal DNA database for African Americans, but not other ethnic or racial groups).
242. See, e.g., United States v. Kincade, 379 F.3d 813, 833-35 (9th Cir. 2004) (en banc). Courts analyzing the Fourth Amendment implications of DNA database statutes have split as to the appropriate test to apply.
243. See United States v. Weikert, 504 F.3d 1, 8-9 (1st Cir. 2007) (collecting cases). The majority of the circuits have employed a "totality of the circumstances" test, balancing the government's legitimate interests against the diminished privacy interests of convicted persons to determine whether the search and seizure of DNA is reasonable.
244. Weikert, 504 F.3d at 11; United States v. Kraklio, 451 F.3d 922, 924 (8th Cir. 2006); Johnson v. Quander, 440 F.3d 489, 496 (D.C. Cir. 2006); United States v. Sczubelek, 402 F.3d 175, 184-86 (3d Cir. 2005);.
245. Padgett v. Donald, 401 F.3d 1273, 1280 (11th Cir. 2005); Kincade, 379 F.3d at 832 (five judges endorsing the reasonableness standard; one, the special needs exception; and five dissenting); Groceman v. U.S. Dep't of Justice, 354 F.3d 411, 413 (5th Cir. 2004) (per curiam);.
246. Jones v. Murray, 962 F.2d 302, 307 (4th Cir. 1992). The Second, Seventh, and Tenth Circuits have applied the "special needs" test, examining whether the compulsory DNA analysis and profiling constitutes a "special need[], beyond the normal need for law enforcement, [which] make[s] the warrant and probable-cause requirement impracticable." Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in the judgment));.
247. United States v. Amerson, 483 F.3d 73, 79 & n.6 (2d Cir. 2007); United States v. Hook, 471 F.3d 766, 773 (7th Cir. 2006); United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir. 2003). The Sixth Circuit declined to adopt a test, finding the 2000 DNA Act constitutional under either standard.
248. See United States v. Conley, 453 F.3d 674, 679-81 (6thCir. 2006). Regardless of approach, all of these courts reached the same result-that such statutes are constitutional with respect to individuals who have been convicted.
249. Weikert, 504 F.3d at 2-3.
250. Weikert, 504 F.3d at 3-4 ("Profiling is performed using only so-called junk DNA'-DNA that differs from one individual to the next and thus can be used for purposes of identification but which was purposely selected because [it is] not associated with any known physical or medical characteristics' and do[es] not control or influence the expression of any trait.'" (alterations in original) (quoting H.R. Rep. No. 106-900(I), at 27 (2000)));.
251. Nicholas v. Goord, 430 F.3d 652, 670 (2d Cir. 2005) ("The junk DNA that is extracted has, at present, no known function, except to accurately and uniquely establish identity."). In Kincade, the Ninth Circuit observed that it would be possible to locate a relative using the DNA of their kin, see 379 F.3d at 818 n.7, but also made clear that the DNA profiles were only to be used for identification, 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.
252. Murphy also discusses how partial matching can upset the rationales for database inclusion with respect to the databased person and the actual source of a crime scene sample. See Murphy, supra note 22, at 314-19.
253. See, e.g., Friedman v. Boucher, 568 F.3d 1119, 1130 (9th Cir. 2009) ("The warrantless, suspicionless, forcible extraction of a DNA sample from a private citizen violates the Fourth Amendment.").
254. See Seringhaus, supra note 36, at 67-68.
255. See Greely et al., supra note 22, at 257.
256. See United States v. Pool, 621 F.3d 1213, 1221 (9th Cir. 2010) ("[I]t is not clear that familial comparisons raise a constitutional privacy issue or, if they do, whose interests are violated.");.
257. Boroian v. Mueller, 616 F.3d 60, 69-70 (1st Cir. 2010) (acknowledging that, "[a]rguably, the government's use of CODIS to discover partial matches could raise privacy concerns not raised by a traditional fingerprint database," but declining to consider this issue); Murphy, supra note 22, at 330-39.
258. See Friedman, 568 F.3d at 1130;
259. see also supra notes 191-92 and accompanying text.
260. See, e.g., United States v. Sczubelek, 402 F.3d 175, 182 (3d Cir. 2005) (finding that a blood draw is a Fourth Amendment search); Padgett v. Donald, 401 F.3d 1273, 1277 (11th Cir. 2005) (presuming, with citation to Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989), that taking a saliva sample is a Fourth Amendment search).
261. See, e.g., United States v. Miller, 425 U.S. 435, 443 (1976) ("This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.");.
262. see also Georgia v. Randolph, 547 U.S. 103, 133 (2006) (Roberts, C.J., dissenting) ("Even in our most private relationships, our observable actions and possessions are private at the discretion of those around us.").
263. 489 U.S. at 617.
264. Id.
265. See Smith v. Maryland, 442 U.S. 735, 744 (1979) (holding that installing a pen register without a warrant does not violate the Fourth Amendment because, "[w]hen he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and exposed' that information to its equipment in the ordinary course of business." (emphasis added));.
266. Miller, 425 U.S. at 442 ("All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business." (emphasis added));.
267. see also Smith, 442 U.S. at 743-44 (collecting cases supporting the proposition that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties" (emphasis added)). Other cases in the Fourth Amendment canon also focus on voluntary sharing of space or information.
268. See, e.g., Randolph, 547 U.S. at 134-35 (Roberts, C.J., dissenting) ("The common thread in our decisions upholding searches conducted pursuant to third-party consent is an understanding that a person assume[s] the risk' that those who have access to and control over his shared property might consent to a search.... To the extent a person wants to ensure that his possessions will be subject to a consent search only due to his own consent, he is free to place these items in an area over which others do not share access and control, be it a private room or a locked suitcase under a bed." (alteration in original) (quoting United States v. Matlock, 415 U.S. 164, 171 n.7 (1974)).
269. Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561, 588-90 (2009);
270. cf. Randolph, 547 U.S. at 134 (Roberts, C.J., dissenting) (describing the doctrine of third-party consent as one of assumption of risk).
271. This brief discussion merely samples the range and complexity of issues in adjudicating the constitutionality of partial matching. Additional questions arise about who might raise a constitutional challenge to partial matching (the partially matching offender or the investigated relative?) and of what type (is a litigant's claim that investigation directed at her is the fruit of the poisonous partial match tree, or is it an alternative freestanding claim?). Suffice it to say that the constitutionality of partial matching-and the administrability of such claims-is not clear.
272. Murphy, supra note 22, at 319.
273. Id. at 320 (quoting Haimes, supra note 22, at 269).
274. Colorado Familial Search Policy, supra note 18, at 4.
275. See id.
276. Murphy, supra note 22, at 320.
277. Id. at 326.
278. Id. at 326-27.
279. Id.
280. Seringhaus, supra note 36, at 70.
281. Nakashima, supra note 68.
282. Id. (quoting Callaghan).
283. Alison McIntyre, Doctrine of Double Effect, Stan. Encyclopedia Phil. (June 29, 2009), http://plato.stanford.edu/ entries/double-effect (defining the doctrine as holding that "it is permissible to cause... a harm as a side effect (or 'double effect') of bringing about a good result even though it would not be permissible to cause such a harm as a means to bringing about the same good end").
284. Id.
285. See id. § 3 (identifying criticisms of the doctrine of double effect).
286. See id.
287. Alabama, Arizona, California, Colorado, Connecticut, Florida, Minnesota, Missouri, Nebraska, Oklahoma, Texas, and Washington.
288. Colorado, Nebraska, New York, Texas, and Wyoming.
289. See Staples, supra note 131, at 33 (setting forth SWGDAM's recommendations regarding familial identification practices).
290. Oklahoma. One other state, Missouri, reported that it presently conducts routine Y-STR analysis for all male offenders, but did not say whether these profiles are then stored in a permanent database. Other states conducting Y-STR analysis, or commissioning such analysis from outside labs, reported doing so only on a case-by-case basis.
291. See Terry v. Ohio, 392 U.S. 1, 21-23 (1968) (requiring reasonable suspicion prior to stopping an individual briefly for questioning). Note, however, that several courts have relied on the special needs doctrine in upholding the constitutionality of DNA databases. See discussion supra note 191.
292. Cf. Texas Partial Match Policy, supra note 74, at 1 ("Despite the possibility of success, it should be understood that the processes in this policy have had very little success in practice.").
293. See Murphy, supra note 22, at 300 & n.42 (explaining that most experts agree that current CODIS software "does a poor job of identifying true leads in familial searches"); Seringhaus, supra note 36, at 68-69;.
294. see also supra text accompanying notes 75-76.
295. See Bieber, Brenner & Lazer, supra note 81, at 1315; Curran & Buckleton, supra note 81, at 166; Reid et al., supra note 39, at 340-41.
296. See Greely et al., supra note 22, at 253 (observing that the cost of following up on leads generated by partial matching "may be extensive, involving interviewing many offenders and then finding and interviewing any of their relatives who could be possible suspects").
297. See Bieber, Brenner & Lazer, supra note 81, at 1315;
298. Curran & Buckleton, supra note 81, at 166; Reid et al., supra note 39, at 341. Again, because these reports involved searches accounting for allelic frequency (kinship indices), which standard CODIS software does not take into account, they are not good indicators of the likely true-positive rate for partial matches uncovered through a low-stringency search using standard CODIS software.
299. See supra text accompanying notes 75-76.
300. See California Familial Search Procedure, supra note 6, at 28; Colorado Familial Search Policy, supra note 18, at 1. Texas has also implemented special software for deliberate partial matching. See Texas Partial Match Policy, supra note 74, at 1. Texas's partial match policy, however, does not include information about how this software operates.
301. Greely et al., supra note 22, at 253 (emphasis omitted).
302. The cost of specialized software for deliberate partial matching may be considerable, but Colorado has already made its expertise available to other states.
303. Michael Roberts, Denver DA Mitch Morrissey Wants to Make DNA Investigations Family Affairs, Denv. Westword Blogs (Nov. 17, 2009), http://blogs.westword.com/latestword/2009/11/ denver_da_mitch_morrissey_want.php (discussing Mitch Morrissey's plans to travel to other states to assist in partial matching efforts).
304. Alabama, Arizona, California, Colorado, Connecticut, Florida, Minnesota, Missouri, Montana, Nebraska, New York, North Carolina, Oklahoma, Oregon, Texas, Washington, and Wyoming. Louisiana and South Carolina are the odd states out.
305. See Staples, supra note 131, at 33.
306. See Dolan, supra note 4 (describing California's partial matching process in the Grim Sleeper case, which only resulted in one reportable partial match);
307. Dolan & Felch, supra note 62 (noting that the three partial matches that first prompted Mitch Morrissey's campaign for partial matching did not pan out).
308. Rosen, supra note 7.
309. Bieber & Lazer, supra note 178, at 20.
310. Only Missouri and Oklahoma reported that they presently conduct or plan to conduct routine Y-STR analysis for all male offenders. Only Oklahoma explicitly stated that it intends to store these profiles in a permanent database. Other states reported obtaining Y-STR data only on a case-by-case basis.
311. See generally Nat'l Inst. of Justice, Making Sense of DNA Backlogs- Myths vs. Reality (2010), available at http://www.ncjrs.gov/pdffiles1/nij/230183.pdf (detailing the extent of backlogs, their causes, and the federal government's efforts at backlog reduction).
312. See 28 C.F.R. § 28.12(b) (2010) (requiring DNA sampling from federal arrestees and "non-United States persons who are detained under the authority of the United States");
313. State Laws on DNA Data Banks, supra note 64.
314. Solomon Moore, Progress Is Minimal in Clearing DNA Cases, N.Y. Times, Oct. 25, 2008, at A9.
315. California Familial Search Procedure, supra note 6, at 29;
316. Colorado Familial Search Policy, supra note 18, at 1; Texas Partial Match Policy, supra note 74, at 1.
317. California Partial Match Policy, supra note 5, at 2.
318. Texas Partial Match Policy, supra note 74, at 2.
319. Murphy, supra note 22, at 309.
320. See, e.g., Dolan & Felch, supra note 62 (noting that the three partial matches that first prompted Mitch Morrissey's campaign for partial matching did not pan out). But see Dolan, supra note 4 (describing California's successful use of partial matching in the Grim Sleeper case).
321. Murphy, supra note 22, at 304.
322. Id. at 309.
323. McCartney, supra note 175, at 185.
324. Bieber, Brenner & Lazer, supra note 81, at 1316.
325. Murphy, supra note 22, at 313.
326. See supra Part III.C.2.
327. Murphy, supra note 22, at 342.
328. See California Partial Match Policy, supra note 5, at 1-2;
329. Nebraska Partial Match Policy, supra note 103, at 1;
330. Texas Partial Match Policy, supra note 74, at 3-4.
331. Colorado Familial Search Policy, supra note 18, at 1.
332. Adopted in at least twelve states: Alabama, Arizona, California, Colorado, Connecticut, Florida, Minnesota, Missouri, Nebraska, Oklahoma, Texas, and Washington.
333. Adopted in nine states: California, Colorado, Florida, Nebraska, New York, Oregon, Texas, Washington, and Wyoming.
334. See Ram, supra note 90.
335. Murphy, supra note 157, at 754.
336. See Murphy, supra note 31, at 501-08.
337. Paul C. Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L. Rev. 1305, 1396 (2004).
338. See supra note 129 and accompanying text (identifying twelve states requiring additional genetic analysis).
339. See Staples, supra note 131, at 33.
340. See supra Part III.C.1.
341. See Seringhaus, supra note 36, at 14 n.35.
342. See Paoletti et al., supra note 38, at 3.
343. See supra notes 63-69 and accompanying text.
344. Arizona, California, Colorado, Connecticut, Florida, Nebraska, North Carolina, Oklahoma, Oregon, Texas, and Washington.
345. See, e.g., Florida Partial Match Policy, supra note 97 (requiring seventeen common alleles where the forensic profile is complete, and as few as fourteen shared alleles where the forensic profile is incomplete);.
346. Nebraska Partial Match Policy, supra note 103, at 1 (requiring "at least one allele in common at a majority of the CODIS core loci");
347. Texas Partial Match Policy, supra note 74, at 1-2 (requiring at least thirteen alleles in common- one allele in common at each locus).