Friday, December 21, 2012
David H. Kaye (Pennsylvania State University - Law School) has posted On the 'Considered Analysis' of Collecting DNA Before Conviction (UCLA Law Review Discourse, Vol. 60, 2013) on SSRN. Here is the abstract:
For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In King v. State, 42 A.3d 549 (Md. 2012), however, the Maryland Court of Appeals reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too 'generalized' to support 'a warrantless, suspicionless search.' The U.S. Supreme Court reacted forcefully. Even before the Court could consider issuing a writ of certiorari, Chief Justice Roberts stayed the Maryland judgment. His chambers opinion signaled that 'given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.' This essay briefly examines these opinions and finds their analysis incomplete. I outline the Fourth Amendment questions that a fully considered analysis must answer, identify questionable treatments of 'searches' and 'seizures' in the opinions, and criticize a creative compromise in one of the opinions that would allow sample collection without DNA testing before conviction. I conclude that in King, the Supreme Court will have to assess the actual interests implicated by pre-conviction collection and profiling of DNA, articulate the appropriate framework for evaluating the reasonableness of warrantless searches in general, and attend to the complexities in applying that framework to the biology of DNA identification tests and the limited information recorded in DNA databases.