Tuesday, May 1, 2012
Identity has long played a critical role in policing: learning “who” an individual is not only affords police knowledge of possible criminal history but also “what” an individual might have done. To date, however, these matters have eluded sustained scholarly attention, a deficit assuming ever greater importance as government databases have become more comprehensive and powerful over time. This Article seeks to remedy the identity crisis that has affected identity evidence. It does so by first surveying the methods historically used by police to identify individuals, ranging from nineteenth century efforts to measure bodies and note physical marks to today’s biometric identifiers. As this history makes clear, the American justice system has not kept pace with this evolution, failing to impose meaningful constraints on police authority to collect and use identity evidence. The Article highlights this shortcoming and offers a remedy, focusing on two central yet unresolved questions: (i) whether and how limits should be placed on the collection and use of legally obtained identity evidence, DNA in particular, and (ii) whether illegally obtained identity evidence should be subject to suppression. In doing so, the Article provides a much-needed analytic framework for courts as they seek to balance social control needs and individual civil liberties.