The Legal Trouble with DNA

The human skin flakes off over one hundred pounds of DNA material in a lifespan. But ownership of that DNA is a privacy issue that is up before the Supreme Court. The question is: What’s to prevent the government or any other agency from obtaining our DNA without our knowledge and/or consent for analysis?

The SCOTUS meets this coming February to rule on this issue, which seems like an idea from science fiction. But advancing DNA technology makes it both a timely and timeless dilemma.

The original case revolves around a woman allegedly raped in Maryland in 2006. DNA evidence was needed to convict the alleged rapist, but several of the suspects refused to give police a sample of their DNA. Is that a Constitutional right Americans have? Police don’t think so, but many law groups do.

Maryland’s top court has already ruled on DNA gathering and testing, basically agreeing with police that DNA remnants left at the scene of a crime are the same as fingerprints and other organic material that can be used to identify criminal intent and behavior without obtaining a warrant or permission from anyone involved in the event. But a dissenting minority of the judges wrote: “We hold it natural that the vagaries of one person’s comings and goings could possibly leave traces of his or her DNA in places where that person has not actually ever been – it could be carried there by the wind, by someone else’s feet, or even by a pet. There is also the time element – a person’s DNA may have been left behind weeks, months, or even years, before the crime was committed.It is not at all certain that Fourth Amendment rights are being protected well enough in this area, and further consideration ought to be given to rules of warrant and disclosure when DNA samples are part of a criminal felony investigation.”

Another vexing question: “Is DNA testing 100% reliable?”

Dr. Siri Jinn Bhagvan, a retired forensic science teacher, says: “It’s been proven that fingerprint identification can only ever be 95 percent accurate – leaving a 5 percent margin for error. DNA testing is still a relatively new technique, subject to glitches that have not yet been discovered, analyzed, and prevented. At the present time I would say, at a guess, that identification through DNA is only around 75 percent accurate. It must be improved before being used by police and courts in criminal convictions.”

As the law stands now in Maryland, and many other states, when a suspect is arrested and brought into the police station for booking and appearance before a judge, swabbing for DNA is as legal and justifiable as taking a photograph and being fingerprinted. The key element, however, is that the person must first be properly arrested and read his or her Miranda rights. Merely being detained by police, without being charged with a crime, does not give them the right to obtain a DNA sample.

But all that may change, for better or worse, when the Supreme Court rules this coming February.

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Melissa Thompson

Melissa is a mother of 2, lives in Utah, and writes for a multitude of sites. She is currently the EIC of and writes about health, wellness, and business topics.