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Tipping the Scales of Justice: Solving Crime Versus Right to Privacy

By Tamara Herdener, professor of Legal Studies at American Public University

As with many aspects of the American legal system, the question of whether or not police can collect DNA upon arrest is answered by balancing interests. The legal scale weighs how much such collection intrudes on an individual’s privacy interests with how much such collection advances government interests of preventing and solving crimes.

In Maryland v. King, the U.S. Supreme Court recently ruled that the government’s interests in collecting DNA upon arrest outweigh other privacy interests. Unfortunately the Court’s close 5 – 4 decision leaves some ambiguity on the subject.

The Court does not define what type of crime an individual must be accused of to allow the legal taking of DNA. Justice Scalia states that the individual must be accused of a serious crime but the court did not define what constitutes a serious crime and jurisdictions differ on the definition of serious crime. Therefore, hypothetically, two people can commit the same crime in two different states and one person will mandatorily give DNA and the person will not be forced to give DNA. Of course, there is also the age old discussion of what constitutes an “arrest” and what constitutes “probable cause” that may come to play on this matter. 

There is little argument that DNA evidence is an effective way to solve crimes. The question is whether law enforcement can legally take DNA in the same way that it takes other identification information. A relevant question is whether or not the collection of DNA is analogous to taking a suspect’s fingerprints or photograph. Is there a difference between fingerprinting a suspect, taking a photograph and taking a DNA cheek swab? Is there a difference between comparing the DNA cheek swab with a computerized DNA evidence bank and comparing fingerprints to a database of fingerprints?

One obvious difference is that the cheek swab is an intrusion into the suspect’s body whereas fingerprinting and photographing is not. Is this the biggest difference? The answers to these questions will help determine if taking a DNA swab is a violation under the Fourth Amendment. 

Scientifically, we know that DNA is more accurate than fingerprints and photographs and, as a consequence, law enforcement is surer of someone’s identity based on DNA evidence. Secondly, DNA can help solve crimes of the past. A byproduct of this is ensuring that innocent people aren’t being falsely accused and/or convicted. 

Many are concerned that even though it may be legally permissible, agencies will not be able to collect DNA due to the cost of the procedures involved. The reality is that there are innumerable amounts and types of identification and investigation tools available to law enforcement and a cost/benefit analysis is made every day that determines which tools agencies are able to employ. There will be some agencies that won’t be able to utilize DNA collection and technology to the maximum extent and there will be some that can. 

[Go here to read more about the challenges some law enforcement agencies may have trying to process the expected increase of DNA samples.]

Courts will continue to consider this issue and the rulings will continue to guide law enforcement. Technology will also continue to grow and change so the courts will see similar but different matters in the future.

About the Author: Tamara Herdener has taught in the Legal Studies Program at American Public University since 2003.  She served for eight years in the US Army Reserves in the Judge Advocate General’s Corps (JAGC). Prior to serving on active duty, she attended Seattle University earning her undergraduate degree in Political Science and Foreign Languages. Upon graduating from Seattle University, she attended the University of Notre Dame Law School. In addition to teaching for APUS, she practices law in a part-time capacity as the City Attorney in Cannon Beach, Oregon.

Leischen Kranick is a Managing Editor at AMU Edge. She has 15 years of experience writing articles and producing podcasts on topics relevant to law enforcement, fire services, emergency management, private security, and national security.

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