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Univ. of San Diego School of Law

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Tuesday, December 2, 2008

Can swabbing for DNA go too far?

In the settlement around Cove Run Creek, nobody said no when police came asking for their DNA.

A dead baby, wrapped in a flannel shirt and plastic bag, then stuffed into a knapsack, had been abandoned in the woods in North Union, Fayette County, sometime in 2000. As police tell it, the dozen or so girls questioned were perfectly willing to allow a trooper to take a saliva swab from their mouths so a lab could trace the DNA.

"Usually if they have nothing to do with it they have no problem giving up the swab, the sample," explained James A. Pierce, the trooper who cracked the case earlier this month.

Sarah S. Hawk, a 25-year-old woman from the area, was found by that process of elimination. Her DNA was obtained by a search warrant after one of her sisters voluntarily gave a swab this spring.

When the lab identified the sister's DNA as belonging to a relative of the baby, police got search warrants so that they could get swabs from the other sisters. Miss Hawk's came back a match, and she later confessed.

Case closed?

Probably, say legal scholars. But the wider question about how much the government can gather -- and possibly retain -- in the course of solving a crime is far from settled.

"It's emblematic of the problem. We think science is going to be the solution to all our problems," said Tim Sparapani, senior legislative counsel for the American Civil Liberties Union.

He worries that a growing reliance on DNA screens, and law enforcement's growing desire to bank such data, could undermine privacy and skew law enforcement.

"A lot would depend on how the samples were acquired," countered Akhil Reed Amar, a constitutional scholar at Yale Law School who recently published a series of provocative proposals for a nationwide DNA data bank, to be built from samples taken at birth.

The database, he argues, would be a wellspring of information from which innocent suspects could be cleared and the real malefactors determined, much the way fingerprints now provide lock-sure evidence against real culprits, a sort of safeguard against wrongful prosecution. [Mark Godsey]

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