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This kind of match excludes the offender whose CODIS profile provides the match because that individual’s DNA is demonstrably different from the crime scene sample. But a partial match can implicate an offender’s close genetic relatives as possible perpetrators of a crime because they, like the crime scene sample, share some but not all of the examined loci with the individual whose CODIS profile provided the partial match. In effect, reporting partial matches implicitly incorporates offenders’ close genetic relatives into existing offender databases, even though these relatives have never been convicted of, or arrested for, an offense qualifying them for database inclusion. (snips) ... Although written lab policies are better than unwritten ones, neither is as transparent a means for making policy as the public deserves.
Transparency for search policies
(snips) the FBI may promulgate binding regulations and guidance authorizing or proscribing certain uses of relevant databases. The interim policy discussed above represents the FBI’s current approach, but the FBI could insist in a new policy document that states make their practices regarding familial identification practices publicly known by means of statutory or formal regulatory instruments, or even that states simply not release familial identification information discovered through CODIS searching. The FBI may be limited, however, in its ability to regulate intra-state practices, especially where those practices include methods of analysis beyond CODIS searching—as where states test regions of DNA not among the thirteen core CODIS loci. Moreover, states are likely to view a federal mandate that they undertake particular legislative or executive action as an encroachment on state sovereignty and federalism values.
...
Disparate state policies
(snips) Trying to dream up all of things we might do with DNA and then prohibiting most of these might well be an unending exercise.
But states have sometimes been proactive in their regulation of DNA databases to specify not only types of analysis that may be completed, but also types of analysis that may not. ... Only two of the sixteen states that confirmed that they have written policies have codified these policies in documents easily accessible to the general public. Again, Maryland has addressed familial searching by means of legislation, and expressly prohibited the practice. California, meanwhile, issued a well-publicized memorandum by the state attorney general that authorizes, under limited circumstances, both partial match reporting and familial searching.... experiences of Maryland, New York, West Virginia teach that public engagement is not incompatible with policymaking in this arena, and state laboratories calling for public consideration of familial identification practices indicate that there is a felt need for public involvement in such policymaking. Indeed, public involvement, along with transparency and accountability in this arena, are vitally important. Every state in the union created its DNA database by means of legislation, and many have expanded by legislative amendment the range of persons subject to inclusion. Partial match reporting and familial searching implicitly expand the range of persons that may be identified through existing databases. Although DNA profiles are often described as genetic “fingerprints,” partial match practices take advantage of the ways in which DNA is utterly unlike a fingerprint—genetic relatives have similar genetic features in predictable ways, and so family members can sometimes be inculpated through partial matches with the DNA of their offender relatives. (snips)
Natalie Ram is a Greenwall Fellow in Bioethics and Health Policy at Johns Hopkins and Georgetown Universities. She served as a summer research fellow at the Center for American progress in Summer 2009.
Notes
[1] Memorandum from Edmund G. Brown, Jr., Att’y Gen. of Cal. to All Cal. Law Enforcement Agencies and District Att’ys Offices, DNA Partial Match (Crime Scene DNA Profile to Offender) Policy (Apr. 25, 2008), available athttp://ag.ca.gov/cms_attachments/press/pdfs/n1548_08-bfs-01.pdf.
[2] MD Code, Public Safety, § 2-506(d).
[3] Fed. Bureau of Investigation, CODIS, http://www.fbi.gov/hq/lab/html/codis1.htm (last visited Oct. 1, 2009).
[4] See Ted Staples, Chair, Scientific Working Group on DNA Analysis Methods, Address at the Genetic Info. Working Group (June 24, 2008), available at www.ipad.state.mn.us/docs/geninfo17.pdf (setting forth SWGDAM’s recommendations regarding familial identification practices). SWGDAM recommended that familial identification information be disclosed only where, inter alia, identification involved single-source samples only; investigators searched local databases before larger, more general ones; a match was obtained for a substantial number of core loci (as many as possible); additional testing (Y-STR, mtDNA) was performed and confirmed a possible familial link; and tests for expected match ratio and expected kinship ratio were performed and confirmed a possible familial link. Staples, supra at 33.
[5] R.I. Stat. 12-1.5-10(5) (DNA samples may never be used for purposes of obtaining info about “physical characteristics, traits or dispositions for disease”); Utah Code Ann. § 53-10-406 (bureau must “ensure that the DNA identification system does not provide information allowing prediction of genetic disease or predisposition to illness”).
