Law Offices of Joshua D. Martin, LLC

How far can police go in conducting DNA searches?

If police have access to a powerful crime-solving tool, should they be allowed to use it with very few restrictions? Some might say yes. But what if this tool invaded the privacy of millions of Americans – not just those who may have committed a crime? The crime-solving tool at the heart of this debate is called genetic genealogy, and it was the subject of a recent New York Times piece.

Genetic genealogy starts with a DNA analysis of evidence left at the scene of a crime. Once the DNA has been sequenced, police run it through databases that were created to help people trace their family trees and genealogical histories. A suspect’s distant relative may pop up as a partial match, then police use family tree data to narrow down the family members who warrant further investigation (based on geographical location and other factors).

While this technique is fairly new, it has already resulted in some major successes from a law enforcement perspective. Genetic genealogy led to the capture of the Golden State Killer – a man who has eventually charged with 26 counts of kidnapping and murder. That was a cold case that might not have been solved otherwise, and many would claim that use of genetic genealogy in this instance was entirely appropriate.

But what about using it for lesser crimes? The NYT piece discusses the case of a church break-in and assault that was investigated using the tool. It led back to a 17-year-old high school student.

There is little doubt that genetic genealogy can be effective, but should police be allowed to use DNA data collected by private companies without a warrant and without the knowledge of those who provided the DNA samples? And even if those DNA donors gave their consent, their family members did not.

Technology is evolving far faster than laws regulating its use. And in the absence of strict regulation, law enforcement agencies can utilize new technologies to get around the civil rights protections Americans depend on.

It is likely that a genetic genealogy criminal appeal will someday make its way to the U.S. Supreme Court, where use of the technology will either be upheld or struck down. But that will likely take years. How many other criminal defendants will potentially have their rights violated in the meantime?

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