Kathleen just brought me up to speed on California’s Prop 69 (which isn’t at ALL about what you’d think based on the number) which was approved back in 2004, fully implemented in 2009, and is now being challenged in the courts.
What it puts forward is the following: that anyone who is arrested on a felony charge is required to provide a DNA sample so it can be cross matched against DNA taken from other crimes and see if there’s a hit. (There are similar laws on the books in many other states.) There seems little doubt that it will wind up in the Supreme Court. And I honestly don’t know how I feel about it.
On the one hand, imagine a guy who’s busted for having a couple of kilos of crack. They take his fingerprints and all that does is prove that he is who he says he is: a first time offender with no criminal record. And besides, he was wearing gloves when he strangled those five women in Colorado. But one of those women, in her death throes, scratched his face and there were DNA traces under her fingernails. Suddenly a simple drug arrest, for which he may have walked since he was a first-time offender, cracks a case and saves the lives of who-knows-how-many future victims. How could anyone in his right mind object to that scenario? After all, DNA evidence has been used to free many people falsely accused. Why shouldn’t it be allowed to cut both ways? To save people who were innocent, and to nail bad guys who might otherwise have remained at liberty?
Except aren’t there privacy issues? Fourth amendment issues? One of the plaintiffs in the current ACLU-supported case (the law was just upheld in the Federal appeals court) was arrested at an anti-war demonstration. Released, never charged. In California every year, one hundred thousand people are charged with felonies but ultimately cleared. Yet their DNA lives on in FBI files. Is everyone okay with this? On the surface you can think, “Well, sure, because I’ll never commit a crime, so what does it matter if the Feds have my DNA forever?” Okay, but where does it stop? Look at Arizona, where you can more or less be arrested on the charge of driving while being Hispanic. If there’s a violent crime in Phoenix, and a witness thinks he saw a dark-skinned man fleeing the scene, isn’t there a temptation to start arresting Hispanics, Mexicans, any person of color on trumped up charges purely with the intention of testing their DNA and then kicking them loose, only to rearrest should they get a DNA hit? “Round up the usual genetic suspects.” What’s to stop a law mandating that DNA swabs be presented to the government for every newborn child on the off-chance he grows up to become a repeat offender? Bad enough that there are people out there backing a Physician Rape law for women contemplating abortion, advocating that government should be just small enough to fit into a vágìņá. Now government should be even smaller, small enough to get into our lives at a genetic level?
Let’s take it out of the genetic arena. The law now (to my understanding) is that if you’re pulled over for speeding, the officer doesn’t have carte blanche to search your entire vehicle unless he has reason to suspect something is wrong (like, say, blood dripping out of your trunk.) How long before there’s new laws stating that cops can search your car for any reason? Of course, you could say what’s wrong with that? If it gives the cops a better chance of finding a body in the trunk, isn’t that a good thing? I suppose it is. So if you just obey the speed limit and don’t stick a corpse in the trunk, you’ll be fine.
But the thing is, limits are placed on power–all power–for a reason. And the moment you toss any of those limits away, the temptation for abuse of that power always grows. And the people who are supposed to be protected from abuse of that power–namely those without power–are rendered that much more vulnerable.
It would be facile to say there’s no easy answer to this, but that’s not true. On the one hand, there’s an easy answer: law enforcement agencies should be able to use every tool at their command to nail the bad guys. On the other hand, there’s an easy answer: this is a clear Fourth amendment violation, illegal search and seizure being steamrolled in the interest of overzealous police enforcement.
So which way do I fall on the subject? Still haven’t decided.
(Oh, and to make it easier for some of the usual suspects around here, here’s a hint: Obama is in favor of it, so you’ll know to be against it. You’re welcome)
PAD
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My answer: No permanent filing of DNA until conviction. Void if appealed and overturned, or if pardoned outright.
Seems pretty simple, except that the half-racks that place “being tough on crime” ahead of Constitutional rights would of course do everything within their means to ignore the “void” part…
Wildcat
I’d go further and say no collecting until conviction. It’s too easy to “oops” with lots of people if you just have a filing law, but changing mandated collection to conviction ensures it. Plus, you can’t convict someone by proxy, so if you convict they’re right there, in prison, for you to test.
As an aside to the post, as the daughter and sister of police officers, I have to say that you should never consent to a car search. It’s not hard for police to find something they find suspicious to search on their own, but if you consent to a search they’re not liable for damage they make during the search, if you don’t then the police are.
That actually is the rule now here in NC. If they’re not already on file because of a prior conviction, DNA samples are taken at arrest for felonies and a few misdemeanors (domestic violence, mostly). It’s supposed to be deleted if the case is dismissed or the defendant is acquitted. The problem is enforcement. Supposedly, the DA is supposed to tell the state crime lab to expunge the record once the case is closed favorably to the defendant. Someone in Raleigh expects someone with a full load of pending cases to sit down with a stack of closed cases and see if it’s one requiring expunction of DNA. I’ll get right on that.
On the flip side, Linda Fairstein (novelist and former sex crime prosecutor in NYC) thought Giuliani was nuts for having turnstile jumpers arrested, booked, and printed, until they caught a serial rapist that way. Is a DNA sample really that different from fingerprints? It’s not more invasive, because you can get it with a cheek swab now, rather than drawing blood. (Just say “aah.”) Will it become more invasive as time progresses and we understand genetics better?
Government databases aren’t the most secure around…
Worse, what about the FBI sharing it with other gov’t entities for use in other programs? Suddenly you are denied medicaid because you have a predisposition to cancer? You now have to prepay your Taxes because you have a genetic marker for stroke. You are denied boarding a plane because you are of a middle eastern (or insert flavor of the week here)genome?
I wish I could trust the government with that power for all of the reasons you have mentioned, but I just don’t think they are responsible enough yet.
Against it. I have no faith at all in the government to set limits and stay within them.
Also, define felony. Murder, manslaughter, arson, rape, extreme assault? Armed robbery? Well, I may be able to see a point there…
Drug offenses? Grand theft? Insider trading? Stealing campaign signs? I’ve got a problem with that.
And say charges are dropped or the suspect is cleared. Well, their DNA is in the system. Does it get destroyed? Or – more likely – does it get to sit around. When you get cases like that one in Seattle (http://www.youtube.com/watch?v=NSI8djHZHVo&feature=share) where an officer threatens to MAKE UP CHARGES after pulling a felony stop…
No faith at all.
When you get cases like that one in Seattle (http://www.youtube.com/watch?v=NSI8djHZHVo&feature=share) where an officer threatens to MAKE UP CHARGES after pulling a felony stop…
There’s a reason why, where most cities with real-life “superheroes” treat them more like funny-story-of-the-week, Phoenix Jones and his cohorts are getting a certain degree of respect in the Seattle area. Jones (or Pitch Black, or Ghost) might mace me in the mistaken belief that I’m in a fight – but he won’t shoot me, he won’t body-check me into a wall and leave me brain-dead, and he won’t invent felony charges just because.
I’m against it. There is too much room for abuse, and though I would consider Wildcat’s compromise, it would be too easy for authorities to “cheat”. I’m in the “don’t trade liberty for safety” camp.
Considering what’s going on in New York right now with the blatantly illegal tracking and spying on Muslims…
Considering the reactions by many police forces around the country to the Occupy movement…
Considering, as you point out, PAD, a state like Arizona where it’s again all but a crime to not have the right skin tones…
I think it’s safe to say abuse is not only likely, but it has already occurred numerous times.
So, I’m against the notion of being able to take DNA upon an arrest because arresting somebody is easy. Too dámņ easy.
Another one: In the UK, they apparently now want ISPs to track everything you do and hold that information for at least a year. In the interest of preventing crime and terrorism, of course (and because they haven’t legally figured out a way to CCTV in every home).
Considering that the police, especially in a target like New York, have an extremely difficult and important job to do and no evidence has been presented of “blatantly illegal tracking and spying on Muslims”, yet you are prepared to always, ALWAYS find an epidemic-level abuse of civil liberties where none have been proved….
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Considering that the police have been involved in relatively few skirmishes with protesters in the “What the fûçk is our purpose or goal anyway? Who knows or cares? Power to the people! Now let’s go šhìŧ on a police car!” Occupy “movement” – especially in comparison to the reports of assault on fellow protesters, civilians and police; rapes, drug use and public urination and defecation – sometimes on police vehicles – associated with this “movement”…
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Considering that in a state like Arizona, people trying to control their border and the flow of illegal drugs and violent murders are hit with demagogic, false nonsense from everybody from the President of the United States to Craig Ries with inflammatory, untrue statements like “a state like Arizona where it’s again all but a crime to not have the right skin tones…”
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Well, it’s amazing anyone signs up to be a police officer or border agent these days, since all too many people want to do is smear them. They must really love their jobs and have a sense of duty to put up with such ill-informed ingrates…
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You know, the type of people who are more upset that a few soldiers burned the Koran IN ORDER TO DISPOSE OF IT than are upset that two U.S. soldiers dies in retaliation
Not sure why you’re defending the particularly stupid film they’re using. “The film claims that “much of Muslim leadership here in America” aims to “infiltrate and dominate” the United States. On Friday, Mr. Kelly characterized the film “as “inflammatory” and “a little much.”
That’s not a good thing train a police force with. I recall similar films describing Japanese Americans in WWII.
Tough one. But if you can spare a life – or a dozen lives – by capturing a hard-core criminal…. Perhaps only if convicted of certain crimes; or by court order, like a lot of warrants; or if there is strong evidence… but it must be destroyed if the person is cleared. Not sure.
Merely being arrested on a felony charge would require DNA sampling? Way too easy to abuse.
If suspect is actually tried or pleads out … maybe.
As with many laws, good concept, bad implementation. And the fix wouldn’t be hard.
Maintain where every arrest includes an oral DNA sample to be BLIND (my emphasis) matched against crime scene evidence and current convicted offender files. If there is a match, that information can be used.
If the arrested person is not found guilty and does not plea to a felony (people often forget a plea is a conviction) the sample is discarded.
There’s already a problem, though, with this. Several DNA sampling programs have already been implemented with disposal requirements after a few years. However, these disposal programs are seen as extremely low priority, and so DNA samples hang around for many years afterwards.
People *WILL* find ways to work around the restrictions. My mother was told she had a choice – the DA could prosecute the drunk driver who killed her parents, or she could sue him. This was back in the 60s, when double jeopardy was given respect. Look at what they did to OJ. He’s found innocent, but then the family finds a lawyer to sue him, rephrasing the name of the crime slightly – and all of a sudden, it’s not double jeopardy because it’s a different crime, *AND* they’ve managed to move things into another court system where its much easier to get a conviction.
I’ve heard of judges telling people that they can’t stand on the 5th Amendment in a court case, because they’re not being accused of this crime – and that the prosecutor has agreed what they say can’t be used against them in a court of law. And yet – the prosecutor *CAN* use what’s said as a guide to where to look for some crime they *CAN* charge you with, if they don’t like how you testify.
(I’ve always been suspicious, after seeing Michael Fortier on CNN giving an interview about how Tim McVey didn’t blow up OKC, but then his wife suddenly is up on drug charges, and his story changes… “It’s gonna be your buddy, or your wife, man…”)
My understanding is that double jeopardy was never an issue. DJ applies in criminal prosecution; civil proceedings are another thing entirely. If someone is convicted of the crime, it gives the civil suit more legs. But if he’s found innocent in a criminal court, it doesn’t matter; the civil case is an entirely different animal, with a far lower standard for proof of culpability.
PAD
“I’ve always been suspicious, after seeing Michael Fortier on CNN giving an interview about how Tim McVey didn’t blow up OKC, but then his wife suddenly is up on drug charges, and his story changes… “It’s gonna be your buddy, or your wife, man…”
This is a lot more than a tactic used on LAW & ORDER. According to Tommy Chong (of Cheech & Chong fame), the government worked very hard trying to set him up into selling bongs through the mail to a state where it would be illegal — but he never did. Eventually, though, they managed to get Chong’s son to make such an illegal shipment, at which time Chong pled guilty and did jail time to keep his son out of jail. (This is covered in far more detail in the documentary A.K.A. TOMMY CHONG.)
Whether or not that’s good or evil depends on whether you think the ends justfy the means. Do you use every possible bit of leverage you have to convict someone you believe is guilty — even if it means going after and threatening their family and friends to get to them? I don’t know.
It’s not so much retention of samples as data records. Using the system I proposed, the accused persons information is never stored in the system, only matched against existing records. If they are convicted then it gets published into the master DB.
James Lynch: Whether or not that’s good or evil depends on whether you think the ends justfy the means. Do you use every possible bit of leverage you have to convict someone you believe is guilty — even if it means going after and threatening their family and friends to get to them? I don’t know.
The ends justify the means is an argument most commonly used by those who want to face no consequences for those means. Would those who defend their actions with “end justify the means” be so eager to do so if they, in turn, had to face penalties for their actions? I suspect not.
If you use every possible bit of leverage you have to convict someone you believe is guilty — including going after and threatening their family and friends to get to them, would you then be willing plead guilty to assault etc. and go to jail?
Would your answer to that question still be “I don’t know”?
Arrested? No, I don’t think so. Convicted, yes, of course. Why would it be any different than putting fingerprints in a database?
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Which raises the question, if you are arrested, are your fingerprints in the base forever? If they are, what real difference is there in also obtaining DNA fingerprinting?
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Look at Arizona, where you can more or less be arrested on the charge of driving while being Hispanic. true, if by “more or less” you mean “not at all”. I know of no case where anyone was arrested for being Hispanic and driving a car. That would be one hëll of a lawsuit right there. Now, being Hispanic, driving a car and not having a valid license, sure, but why should they be any different than me?.
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I wonder if this law could be effective as a deterrent–if you HAVE committed a crime where your DNA has been deposited somewhere might you be extra careful not to be caught doing ANYTHING else?
“Which raises the question, if you are arrested, are your fingerprints in the base forever?”
They last forever not only when you’re arrested, but when you do anything that requires you to get fingerprinted. When you do something as simple as
get treated like a criminalgetting a new job, if it requires fingerprinting as a part of the background check, you may be going into a permanent database. So, yeah, that cat was let out of the bag some time ago.I have a problem with that. If it’s in aide of getting a job or the like, then the prints should be shredded the moment you’re hired. If there’s a need for further security clearance down the line, they can take them again then dispose once they’ve been used. But for law enforcement, if you’ve been arrested, tried, convicted and served time, the police will want to know if, should you be arrested and convicted again, they’ve got the same individual, and not just someone with the same name. Then throw the book at them for not learning the first, or second, or maybe third time. Note that I’m not in favour of a blind three-strikes law where someone, whose third strike consists of stealing a couple of AA batteries, winds up in jail for life. Proportional response, please.
How is it different from fingerprints? Well, let’s quote the dissenting judge in the recent decision:
I would conclude that Proposition 69 is unconstitutional. My reasoning is straightforward. Fingerprints may be taken from an arrestee in order to identify him — that is, to determine whether he is who he claims to be. But fingerprints may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the fingerprints would help solve the crime for which he was taken into custody. DNA samples are not taken from felony arrestees under Proposition 69 in order to identify them. Rather, they are taken solely for an investigative purpose, without a warrant or reasonable suspicion.
PAD
I don’t know that I would agree with that logic. Yes, you take fingerprints in part to identify the subject you have in custody, but you’ve moved well beyond that point by the time of conviction. Certainly you have some Constitutional rights at that point, but many of them are essentially waved or greatly diminished while incarcerated and after incarceration.
Also, you are now a convicted felon at this point and they already have a system in place to keep and maintain information on you. In that regard, this system is no different than fingerprints or the other information they take and keep.
A little over a decade ago, if you got released and a month later committed a crime, they would get information from the crime scene and check the database for matches. If they got a partial print, they could pull the rest of the information on you and get photographs, get information on distinguishing scars, marks and tattoos and other tidbits to track you down and compare the information they have on the suspect to your information.
How does adding DNA to that database change anything or, in that context, make DNA different than fingerprints?
Even the concept of the DNA going into the system and jamming you up for an older crime where DNA evidence was collected is not unprecedented with fingerprinting. If an older crime was unsolved and a year after the fact you’re arrested and fingerprinted, your information going into the system can be used to link you to the older crime. Absolutely no difference whatsoever in that.
All DNA evidence does is add to what is already there. All DNA records do is give law enforcement and the legal system one more way to identify a suspect and determine guilt or innocence. Of course there may be ways to game the system and abuse the power, but that’s already there now. We have laws in place to punish those who do that though and they are quite strict and quite severe.
Honestly, I think the pros outweigh the cons here.
Jerry Chandler: All DNA evidence does is add to what is already there. All DNA records do is give law enforcement and the legal system one more way to identify a suspect and determine guilt or innocence. …
I’m always a bit careful when someone starts making the “All it can do…” arguments. It usually indicates something inconveniently contrary is being ignored or overly downplayed.
Bill Mulligan: Why would it be any different than putting fingerprints in a database?
Because fingerprints can’t also be used to deny you health coverage, to give one example.
Fingerprints are pretty much limited to being able to be used to identify you. DNA can be used for so much more.
This is true, though one can get DNA from a perfectly legal drug test so that ship has sailed. Besides, is it legal to deny someone health care based on a DNA test? I’m sure it could be abused GATTACA style but is it legal to do so now?
Should we do away with any and all DNA evidence because it has the potential to be abused? Once you are convicted of a crime you lose certain protections. Should have thought of that before you did it.
“Because fingerprints can’t also be used to deny you health coverage, to give one example.”
I think that would fall under having a pre and that’s been addressed for now at least.
Once you are convicted of a crime you lose certain protections.
Except, in California, we’re not talking about those convicted of a crime.
Bill Mulligan: Once you are convicted of a crime you lose certain protections.
Except DNAing the convicted isn’t what’s being talked about.
I have no issue with the general concept, but I do have a problem with the when and why of the taking of DNA.
I don’t believe that they should take your DNA at the time that you’re arrested and charged. I’ve always felt that DNA samples to be added to a criminal database should only be taken when you are in fact convicted of a felony. The only exception I would make to that is when you arrest a repeat offender with prior felony convictions who has not been entered into the DNA database. In such cases, you’re basically just updating the database with information based on prior convictions that predated the implementation of the law.
By moving the point of collection to after conviction, you remove the ability to abuse it in the manner you suggest of just having sweeps to collect DNA and you probably save the state some cash since whoever is doing the processing for any particular state is likely charging the state a nice price for it or, if the state is doing it purely in-house, it keeps the state from wasting its time, money and resources.
That would be a good point to argue it on and petition lawmakers to address. Arguing against this in court on the privacy aspects of it are almost a lost cause though. When you’re booked, they already take your photograph and fingerprints. In many states, including mine, they’ll also document any scars, marks and tattoos that you have. That’s been the rule for a long time now. Some states are actually fingerprinting you when you get your driver’s license. Getting that genie back into the lamp is hard enough, but I would think that successfully arguing against this as a privacy issue would be dámņëd close to impossible given how much that line has already been crossed in this particular process.
I’ve always felt that DNA samples to be added to a criminal database should only be taken when you are in fact convicted of a felony.
I thought they already did that. At the very least, the question has already been before the Supreme Court and they’ve upheld the practice, ruling that it’s permissible because the convicted have less privacy rights.
PAD
That was my general understanding as well. But I was unsure on this specific case from some of what you wrote and this morning I had time to type but not to research.
If that’s the case here, then I see no real issue with it. You’re only taking DNA from convicted felons and that in and of itself removes the ability to get DNA from the sweeps you mentioned in your thread starter. You can’t simply draw DNA at the time of arrest and then release. So, no, no issue there.
One problem is that when you are looking for “cold hits” with DNA, the probability of getting the wrong person is pretty high.
Suppose there is DNA found at a crime scene. If you’re testing a suspect and find a match, that is strong evidence that the suspect in question did the crime. If only one in a million people have that particular sequence, then if the suspect were innocent, there would be a 99.9999 chance that his DNA would not have the sequence and he would be cleared.
But if one in a million people have that sequence, it means that there are about 300 people in the country that could be matched to the DNA at the scene. If that is your only evidence, it should not even be enough to arrest someone. It’s worth investigating to see if there’s more evidence, but the chances of arresting the wrong person in those circumstances are pretty high.
I just want to simplify Steve Promo’s point, because it is a crucial one that a lot of people don’t realize: DNA testing is not as accurate as we think.
If I am not mistaken, they compare incomplete DNA sequence, which increases the probability that the wrong person could be matched.
Except, the numbers Steve Premo gave indicate an extremely accurate way to help link a criminal suspect to a prior criminal act.
He says that you could have 300 people linked to a DNA hit. Okay. There are over 311 million people in the US. Of that 311 people, the vast majority of them do not have DNA in a criminal database. So, while 300 people in the US may also show as a hit, the likelihood of a hit on an innocent person VS a hit an DNA taken from a convicted felon and likely repeat offender is even less than that. He maybe could hit a match to 300 people, but only if all 300 people are in the DNA database.
But let’s say that they are in fact all in the database. Let’s say that I get brought up as a suspect for a crime based on a database hit. I might not even ever know. Why should I if the case or series of cases are in California and I’m in Virginia? They may hit on my data, but they might hit on five others who are far more likely candidates for the crime.
But let’s say it’s closer to where I live. Okay, so they hit my data and they want to know where I was on such and such an evening. Fine by me since I can account for my whereabouts rather easily. Of course, that supposes that they would act only on the DNA data. They won’t.
Let’s say that they hit my DNA in the database and think I may have been involved in a crime. Okay, they don’t know who did the crime, but they do have enough info about the suspect to know that the suspect was a small built male who was no more than 5’4 to 5’6 in height. I’m a large built male who stands 6’2. Why are they even going to pursue the issue with me?
So, DNA may hit up to 300 people, but the likelihood of all 300 people being in the criminal database is very unlikely. Also, they’re not going to be any more likely to arrest you and convict you based only on that hit than they would be for a partial fingerprint match. Yeah, you may have generated a hit in the system, but you don’t match any of the descriptions of the suspect related to the crime.
One in a million? Given the facts of the system, I doubt the chance of wrongly fingering an innocent person off of DNA is less than a 1 in 100 million chance. And even then, the DNA hit is not the be all and end all of it any more than any other single, already existing factor would be. If anything else, It’s likely that there’s a far greater chance of you one day being cleared of charges brought against you thanks to DNA evidence than of you being wrongly convicted because of it.
Jerry Chandler: If anything else, It’s likely that there’s a far greater chance of you one day being cleared of charges brought against you thanks to DNA evidence than of you being wrongly convicted because of it.
You make some fairly good points. But on that last one, I’d point out that, were it not for the DNA evidence you wouldn’t have even been considered for the crime in the first place. So it may absolve you, but it’s what got you into the police’s sights in the first place.
He maybe could hit a match to 300 people, but only if all 300 people are in the DNA database.
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Well, California seems well on the path to finding a way to get everybody in the DNA database, whether they deserve to be or not. 🙂
Sean D. Martin: “So it may absolve you, but it’s what got you into the police’s sights in the first place.”
No more so than anything else that right now creates false leads for law enforcement and probably much less than some other things. If anything, it may be the thing that gets you exonerated faster than anything else.
Years ago, you could be accused of rape and if you couldn’t confirm your whereabouts during that time you stood a fair chance of having your name dragged through the mud for weeks/months and maybe getting wrongly convicted. Now? DNA evidence from the crime hits on a prior sex offender and clears you from day one or they test you and clear you fairly quickly.
In some crimes, there are no finger prints. All you used to have was witness descriptions and maybe a victim to describe a suspect and sometimes that wasn’t the most reliable thing in the world. We’ve seen a number of people in the last decade-plus cleared by DNA evidence for things like rape and murder because there was no way to prove their innocence and they looked just like the attacker to witnesses and the victims (well, not in the cases of murder obviously) pointed them out as the attacker.
See here for an interest case with a lot of information available on it.
http://www.pickingcottonbook.com/splash.html
DNA evidence is what helped clear the guy. The DNA also fingered another guy who was a convicted felon and thus had his DNA on file. Interestingly, the other guy had earlier confessed to the crime.
Craig J. Ries: “Well, California seems well on the path to finding a way to get everybody in the DNA database, whether they deserve to be or not.”
I know that’s being said as (basically) a joke, but the sad thing is that it might not be too far off of the reality.
The simple truth is that we’re going to be headed towards a society where this kind of information and more on all of us will be attainable to “authorized” individuals in the not too distant future. I don’t fully like it myself, but I’m not as freaked about it as some seem to be.
If I am not mistaken
Don’t worry, you’re mistaken. DNA is plenty accurate. They’re partial comparisons, but the part isn’t just three genes long. DNA “hits” are usually in the order of magnitude of billion-to-one odds against a given sample coming from an unrelated person. The one-in-a-million example would be a bad match. I’ve seen plenty of “X to 1 against” odds where X was greater than the population of Earth.
And it would be compared to other data. Say there’s statistically 300 people who could fit a given DNA profile. That’s in the United States. How many of them are, say, in Connecticut? And wear a size 9 shoe? And have a prior criminal record– arrests or convictions– for the same type of offense? And confess when you hold up a piece of paper and say “this is your DNA sample”? Any one data point is probably going to fall short of proof beyond a reasonable doubt, but when you get enough bricks, you have a wall.
The simple truth is that we’re going to be headed towards a society where this kind of information and more on all of us will be attainable to “authorized” individuals in the not too distant future. I don’t fully like it myself, but I’m not as freaked about it as some seem to be.
I don’t know if anyone here (other than me) has read David Brin’s The Transparent Society. To my knowledge, it’s the only nonfiction book he’s published — it’s about 10-15 years old at this point, but I think a lot of is applicable to this discussion. Jerry, Sean and others — based on what you’ve been saying here, I think you’d all find it very interesting.
SDM: “So it may absolve you, but it’s what got you into the police’s sights in the first place.”
Jerry Chandler: No more so than anything else that right now creates false leads for law enforcement and probably much less than some other things. If anything, it may be the thing that gets you exonerated faster than anything else.
You seem to be missing my point and doubling down on the idea that I was responding to. It’s the DNA evidence that brought you to the attention of the authorities in the first place. So my reaction wouldn’t be “Thank god for that DNA evidence that proves I’m innocent” (digression: why would I have to prove I’m innocent?) but rather “Ðámņ the DNA that got me involved in this thing in the first place.” To suggest that the thing that caused them to suspect you will be the thing that then exonerates you is illogical.
Jerry Chandler: We’ve seen a number of people in the last decade-plus cleared by DNA evidence for things like rape and murder because there was no way to prove their innocence and they looked just like the attacker to witnesses and the victims (well, not in the cases of murder obviously) pointed them out as the attacker.
From the brief description at the Innocence Project, it seems the DNA found at one of the crime scenes was tested and matched to another convict. No mention made of Cotton giving a DNA sample. Even if he did (the Project’s write up is brief and sticks to the most relevant facts) I’d presume it was DNA he’d given willingly so that he could prove his innocence. Quite a bit different than someone who was arrested during, say, a street demonstration or other act of civil disobedience and then released without any charges being filed being forced to give one.
JC: Interestingly, the other guy had earlier confessed to the crime.
IOW, the right person could have been found guilty without even getting into the DNA testing.
JC: The simple truth is that we’re going to be headed towards a society where this kind of information and more on all of us will be attainable to “authorized” individuals in the not too distant future. I don’t fully like it myself, but I’m not as freaked about it as some seem to be.
Information, particularly that which would be very useful to a powerful lobby such as the insurance industry, rarely stays within the hands originally intended. There is inevitable a slow whittling away of the restrictions on who can/can’t use the info. I see massive potential for abuse and/or slow increasing of the number of folks deemed “authorized”.
I was actually addressing more the idea that DNA evidence somehow changes anything.
DNA isn’t going to do anything that isn’t being done and hasn’t been done already. DNA evidence isn’t going to suddenly create a situation where you can be linked to older crimes in a world where that situation didn’t exist before. As I’ve said, that can be done and has been done with fingerprints and even something as simple as the photograph taken at time of arrest.
DNA won’t do anything that hasn’t been getting done already. Hëll, as it stands now, we’ve had people who had absolutely nothing to do with a crime get rounded up and pulled into investigations because of mistaken witness testimony or false leads. If anything, again, finding DNA at the scene helps eliminate some of that for the simple reason that you, even if you might match the suspect’s description, weren’t there and didn’t do it. So, again, DNA is far more likely to exonerate you than it is to implicate you. And you will never know that you were a suspect because no one is going to come pick you up and question you; let alone arrest you.
DNA also isn’t going to turn investigators into robots. They won’t see a DNA match between your DNA and some DNA found at a crime scene and just declare you guilty. They may disregard the hit on your DNA if the majority of the evidence in the case to that point would disqualify you as a suspect. If you’re a black female in her 20s and the suspect information indicates a white male in his 50s, the odds are they won’t care about you at all and simply write off the DNA hit off of samples at the scene as the BF in her 20s just being a random but regular passer-by in that area.
DNA evidence isn’t an automatic deceleration of guilt. A case has to be made and there has to be a probability of you being able to have done the deed at the time and place that it was done. It’s just one part of the overall case that has to be made. It’s not the be all and end all.
Now, if you’re worried that you will be wrongly fingered for a crime by DNA evidence – Doubtful. Despite Living Silver’s comments, DNA evidence is extremely accurate and the odds of you getting jammed up for someone else’s crime via a DNA hit isn’t something that’s going to happen.
But if you did in fact do the prior crime then, yeah, you will come back as a DNA hit and they may start an investigation to determine if a case can be made. But if someone came back as a hit from a prior crime based on DNA evidence? Then, yeah, I’m going to tell you that the odds are that they probably did it. But they still won’t get rounded up and jailed unless they can make a case around the crime to take to court.
I am curious about something though. This, again, is not a new concept even if this form of evidence is newer. Go and find your local big city police detectives who have a couple of decades of experience and ask them if they’ve ever made an arrest that ended up clearing the case they were working on as well as helping to clear several prior cases on file due to evidence collected on the most recent case or the fingerprints of the suspect who they just arrested for the first time and who therefore just had their prints entered into the system for the first time.
It’s happened for years now. Do you object to the idea of a suspect’s fingerprints being checked in the system if there’s a possibility that it will get a hit on evidence collected from a prior unsolved case? Do you have an issue with fingerprints being on file and thus allowing new investigations on crimes made years later to hit on the information and thus make a suspect out of the individual arrested for the prior crime? Yes? No? If you don’t have an issue with this, why do you have an issue with DNA evidence doing the same thing?
And, again, just like with the DNA evidence, when this has happened it isn’t just a magic bullet for the investigation that makes them immediately jump to a determination of guilt and doesn’t mean that the courts will convict on that alone. They still have to build a case and prove guilt; it’s not just treated as a given where the defendant must prove that they are innocent just because the state says that they are are guilty.
So, again, what’s new or different about this?
That was meant only as a response to this post.
http://www.peterdavid.net/index.php/2012/02/24/boy-im-really-torn-about-this/comment-page-1/#comment-665318
The others popped up when I was typing and I didn’t see them. I also don’t have time to respond to them since I have to go play with a protest group in my professional capacity.
And, no, we won’t be taking DNA from anyone we arrest.
Jerry Chandler: DNA isn’t going to do anything that isn’t being done and hasn’t been done already. DNA evidence isn’t going to suddenly create a situation where you can be linked to older crimes in a world where that situation didn’t exist before.
Actually, that’s a situation that requiring DNA samples would suddenly create. PAD’s example, for example. “And besides, he was wearing gloves when he strangled those five women in Colorado. But one of those women, in her death throes, scratched his face and there were DNA traces under her fingernails.”
I’m not saying that being able to identify a serial killer isn’t a good thing. But I’m not going along with the naive idea that requiring DNA samples doesn’t change things.
JC: If anything, again, finding DNA at the scene helps eliminate some of that for the simple reason that you, even if you might match the suspect’s description, weren’t there and didn’t do it. So, again, DNA is far more likely to exonerate you than it is to implicate you.
No, I still don’t find comfort in the idea that it’s a good thing to have my DNA on file just so I can be eliminated from consideration. If you want to, fine. Make it a voluntary thing. Anyone who wants to put their DNA on file with the police can choose to submit a sample and rest peacefully knowing they won’t get pulled in because they happen to fit some eyewitness’s description. But since I haven’t yet been pulled in just because the cops are looking for someone who looks like me (admittedly, others may have a different experience), it would seem a rather extreme solution to a problem that doesn’t exist.
JC: DNA also isn’t going to turn investigators into robots. They won’t see a DNA match between your DNA and some DNA found at a crime scene and just declare you guilty.
And getting declared guilty because your DNA was found at a crime scene isn’t a concern that I don’t think I’ve seen anyone seriously put forth, so you’re choosing to argue against an objection that hasn’t really been made. Where the concerns do lie, as was mentioned way up thread in some of the earliest messages, is that taking samples upon arrest could lead to more arrests being made just so DNA databases could be built up. There’s certainly a motive on the part of law enforcement to get as many samples as possible into their database if it’s going to help them solve cases they may not otherwise be able to solve. How do you make sure that doesn’t happen? Because it will.
And once DNA info is being stored, what prevents it from being used outside the realm of law enforcement? Insurance companies, just to name the obvious example, would love to have access to DNA info if it would enable them to weed out those more likely to make medical claims, or at least require that they pay higher premiums.
SDM: And getting declared guilty because your DNA was found at a crime scene isn’t a concern that I
don’tthink I’ve seen anyone seriously put forthFixed that for me.
Jerry Chandler: If you don’t have an issue with this [police collecting fingerprints], why do you have an issue with DNA evidence doing the same thing?
Already answered: Because fingerprints can’t also be used to deny you health coverage, to give one example. Fingerprints are pretty much limited to being able to be used to identify you. DNA can be used for so much more.
JC: And, no, we won’t be taking DNA from anyone we arrest.
Only because you’re not yet allowed to.
I agree, it should only be done after conviction.
“(Oh, and to make it easier for some of the usual suspects around here, here’s a hint: Obama is in favor of it, so you’ll know to be against it. You’re welcome)”
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I hadn’t paid attention to any of this until this post, but I already knew which way I was leaning before I got to the part about Obama’s position. I’m against this, and I would be if any Republican backed it. I also oppose things like roadblocks to check for DUIs for the same reason. I opposed many of the post-9/11 TSA measures implemented by the Bush administration for the same reason.
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I realize that northeastern liberals believe “conservative” = “reactionary rube” but even if that were the case, the fact the ACLU opposes the measure should offset any Obama influence.
No, this northeastern liberal simply believes that “conservative” = “opposed to anything Obama says or does, even if it’s following policies that conservatives once supported.” Big difference.
A belief that is easily disproved…though beliefs are amazingly immune to the facts. It would be like saying liberal=accepting of policies by the Obama administration that they considered unconstitutional under Bush. Easily falsified by the words and actions of principled liberals located by a casual google search.
I’m not sure I understand the ‘identification’ justification for fingerprints. How can they help ID someone unless the state already has their fingerprints? It seems to me that whatever the rules are for fingerprints, they ought to be the same for DNA, most of the same issues apply.
Fingerprints are easier to take and check at the time of arrest. If you have someone with no form of ID on them or ID that you suspect is fake, you can easily use their fingerprints to confirm their identity.
Not quite as simple (yet) with DNA. DNA still falls more into the realm of investigations far, far more often than not.
I’m against it simply because it would add another layer of BS and Bureaucrats to state and federal governments. It is long past time to prune the government tree but not the tree of liberty …
I’m not in favor of bureaucracy for bureaucracy’s sake either. But to dismiss something just because it’s going to require someone to administer it is stupid.
If it didn’t already exist, would you be against the creation of a police force/fire department/public school system/etc. simply because it would add another layer of bureaucrats?
No, but the subject was DNA Data-basing.
This is like the old pornography debate where the prosecutor said “I Can’t define it but I know it when I see it.”
Scott.45: No, but the subject was DNA Data-basing.
No, the subject you brought into play was being against something “simply because it would add another layer of BS and Bureaucrats” and not because of any actual faults the thing has. And that was what I was responding to and which you’re trying to now change the conversation away from.
PAD: On the one hand, there’s an easy answer: law enforcement agencies should be able to use every tool at their command to nail the bad guys. On the other hand, there’s an easy answer: this is a clear Fourth amendment violation, illegal search and seizure being steamrolled in the interest of overzealous police enforcement.
You have two people. One is guilty, one is innocent. You don’t know which is which. Do you free them both, or punish them both?
I can understand the appeal of protecting future victims from someone who had previously gone undetected as a serial killer. (PAD’s example in his third paragraph.) But am far more worried about the future victims of over zealous cops and prosecutors and tough-on-crime politicians.
Unless it can absolutely be guaranteed that DNA samples won’t be used for any purpose other than the stated one of solving past crimes (note: nothing can be absolutely guaranteed), then it’s an issue I’m not torn about. REALLY or otherwise.
It shouldn’t be done.
I’m surprised no one, especially our host, has brought up the “covertly identify the mutants” angle… not a single Project Wideawake reference?
We were trying to distract folks from that. Y’know, keep the real reason for the DNA program covert. But now you’ve had to go and blab about it!
I’m not in favor of such a move for the simple reason that the process is far from perfect. Until better systems are put in place (which is really doubtful that such a thing is possible considering both human nature and the general state of bureaucracy) controlling the what, who, when, where, why of access, it should be left well enough alone.
As noted elsewhere on this board, there are simply too many opportunities for something to invariably go wrong. What guarantee is there that DNA will be effectively erased if so ordered and, if so, when will it be done? Does it still remain an active file in the meantime to be accessed at will by LEO or relevant agencies? As I understand it, DNA research is still not yet perfect … look how many cases are being overturned due to DNA challenging evidence against people and that challenge being upheld. That tells me that the system itself is far from perfect and that DNA research is still ongoing for the simple fact that it hasn’t been perfected yet.
Suppose that it becomes policy and then, the gov’t (local/state/fed) gets short of cash and some company offers them $$$$ for DNA samples that they then can access at will looking for all sorts of info. Should they even have the right to do that? Somebody will argue that since it’s sitting there in their possession; they will have that right to do so even w/o your knowledge. Suddenly, insurance companies and biomedical companies will come knocking for DNA.
It’s too easy to justify doing something because it’s easier … despite any misgivings that people may have to the contrary. Work out the kinks ~ allowing for a legitimate course to rectify any and all mistakes made and then open it for discussion … a sane rational discussion free of rhetoric and inflammatory speech. Ah, what am I saying … that would be wishful thinking!
So, of course, I would vote “No” !
liam: look how many cases are being overturned due to DNA challenging evidence against people and that challenge being upheld.
To be fair, I believe those are cases where new DNA testing is being done and showing that the person accused/convicted doesn’t match. Not cases where DNA was used to convict someone and now that original testing was shown to have some fault.
Does the likelihood of a convicted felon being a repeat offender matter? Not as it stands now, as I understand it, but I mean to anyone’s thinking. Could a proviso be written in that DNA will be checked for similar crimes and all other excluded? Who would make the judgement on the boundary for similar?
Science will march on. Someone will always come up with something new. It’s been said more eloquently elsewhere, but the legislature doesn’t progress nearly as quickly as science. The more possibilities science presents, the more ethical questions it raises in a situation like this. I’d like to think that people in the government are at least of slightly above average intelligence. What if there were a non-partisan, independent scientific advisory comittee to either raise or answer all these questions? Would that make any difference?
“Does the likelihood of a convicted felon being a repeat offender matter? Not as it stands now, as I understand it, but I mean to anyone’s thinking.”
In a fully legal sense? Probably not. But, yeah, it matters. It’s kinda the idea behind it to a degree. So many criminals are repeat offenders that you pretty much expect them to do another crime once released. This just makes it easier to identify them as the culprit down the road.
“Could a proviso be written in that DNA will be checked for similar crimes and all other excluded?”
Why? If you get arrested for distribution of illegal narcotics in March, what’s to say that you’re not also the guy who beats some woman to death in January of the next year? Some criminals have their set patterns, not all of them by a long shot.
“Science will march on. Someone will always come up with something new. It’s been said more eloquently elsewhere, but the legislature doesn’t progress nearly as quickly as science. The more possibilities science presents, the more ethical questions it raises in a situation like this”
The law may take time to catch up to science, but not that much time. Anything like this that’s put into place is put into place with safeguards, checks and balances and penalties for abuse. Even the mundane stuff has strict penalties for abuse for that matter. Do we occasionally see some abuses get through? Yeah. But you actually see a lot less than people sometimes want to believe that they’re seeing.
The simple truth, despite the futuristic science fiction feel that this has to some and the Orwellian feel it has to others, is that this is nothing more than a mundane tool for law enforcement and is no different in the end than fingerprints and photographs in helping to identify the suspect behind a crime. And with some crimes, it may be the one tool that makes the all the difference between catching someone and having them remain in the loose.
“What if there were a non-partisan, independent scientific advisory comittee to either raise or answer all these questions? Would that make any difference?”
Doubtful. The people who object because they don’t trust “them” with that kind of power will just see such a group as yet more of “them” in the end. They may not be government bureaucrats in your proposed group, but they would just be seen by many as people somehow getting money or power out of the deal in the performance of the job or in jobs for the boys perks down the road.
My guess is, no matter what the arguments against it are, as soon as some cute 9 year old is found hideously murdered by a killer who would have been caught had they taken a DNA sample the news people will pimp it like it owes them money and the public outcry will ensure its passage. “If it saves just one life”, that sort of thing. And hey, if it were my kid I’d no doubt agree.
If you get arrested for distribution of illegal narcotics in March, what’s to say that you’re not also the guy who beats some woman to death in January of the next year? Some criminals have their set patterns, not all of them by a long shot.
And if you’re arrested for distribution of illegal narcotics, but released because you did not in fact commit the crime, then in January leave some DNA behind in the apartment of a friend who later was beaten to death? Arrest =/= guilt, you know. That’s why if you’re on trial for one crime, the prosecution isn’t allowed to bring up arrests for crimes for which you were not convicted. It’s called “innocent until proven guilty.”
Except that this standard seems to be “innocent until accused by the government of being guilty.” All they need to do is say you did something, and they can then harvest your DNA and compare it against every crime scene they come across from then on until they find something that you maybe did do (or at least that you then have to prove you didn’t – and since when is the burden of proof supposed to be on the defense?).
“And if you’re arrested for distribution of illegal narcotics, but released because you did not in fact commit the crime, then in January leave some DNA behind in the apartment of a friend who later was beaten to death? Arrest =/= guilt, you know. “
Except that you’re changing the parameters of what Sean and I were discussing. We’re discussing people who were guilty of a prior crime and whether or not you can check DNA evidence against collected DNA from other types of crimes. And no one here, no one, is putting forward the idea of arrest equating to guilt. As a matter of fact, most of us who have discussed this in this thread who are in favor of collecting DNA evidence have stated that we would prefer a system where DNA evidence is either destroyed upon a ruling of innocence or not filed into the official data bank at all until a conviction.
“That’s why if you’re on trial for one crime, the prosecution isn’t allowed to bring up arrests for crimes for which you were not convicted. It’s called “innocent until proven guilty.””
But, again, the line you quoted me making was not one discussing the courts. We were discussing investigations.
Sean: “Could a proviso be written in that DNA will be checked for similar crimes and all other excluded?”
Me: “Why? If you get arrested for distribution of illegal narcotics in March, what’s to say that you’re not also the guy who beats some woman to death in January of the next year? Some criminals have their set patterns, not all of them by a long shot.”
The scenario that Sean put forward would be one of collecting DNA evidence at the scene of a crime, but because the crime in question was a Type A crime you would not be able to check the DNA evidence against anything on record unless it was obtained for a conviction of a Type A crime. Again, that’s investigations and not courts.
“Except that this standard seems to be “innocent until accused by the government of being guilty.””
Nope. Not even. All this says is that there’s one more tool to use for investigation of a crime determine you either guilty or innocent. And I would certainly be for it if I was arrested for anything since it would likely clear me faster than anything else and get me out of the way of the investigation.
“All they need to do is say you did something, and they can then harvest your DNA and compare it against every crime scene they come across from then on until they find something that you maybe did do (or at least that you then have to prove you didn’t – and since when is the burden of proof supposed to be on the defense?).”
You’re distorting what this is VS what is usually done to some degree here.
A woman is raped and there’s both the obvious genetic evidence and she clawed the face of the attacker and ended up with the attacker’s skin under her fingernails. The investigators now have DNA evidence to work off of. You get picked up because you match the description given or because the victim mistakenly accuses you. DNA is gathered from you that shows that there is no genetic match between you and the attacker. You are thus cleared of the crime.
How is this at all different than you being the suspect in a breaking and entering case where fingerprints were left behind by the suspect and being fingerprinted in order to compare the results? Pretty much none that I can see.
Your attitude about DNA evidence seems to be that it’s primary purpose is to make you the guilty person in a criminal case whether you are or not. It’s not. It’s nothing more or less of an investigatory tool than a question about your whereabouts on the evening in question, comparing your photograph to descriptions of the suspect, an old school police lineup or fingerprints. And it’s a lot less likely to get you wrongly fingered as the culprit and convicted than some of those or some other forms of evidence.
And certainly the defense attorneys who have pushed for the use of DNA evidence to defend or clear their clients and the people who have been freed after years of incarceration because of the push to use DNA evidence to prove them innocent after being wrongly found guilty of rapes and murders would disagree with you that DNA evidence is somehow something that is collected and used because you are “innocent until accused by the government of being guilty.”
And going back to the top of your post…
“And if you’re arrested for distribution of illegal narcotics, but released because you did not in fact commit the crime, then in January leave some DNA behind in the apartment of a friend who later was beaten to death?”
That’s a ridiculous question really. DNA evidence doesn’t turn investigators into simplistic robots who just insert DNA data and declare guilt. Nor will the justice system do that.
The investigations unit isn’t going to show up at your friend’s place, find DNA evidence that says that you, a good friend of the victim, were there and call it case closed. They’re going to work the scene and they’re going to see what other things they can find out about the events around the murder. They’re not going to just go and pick someone up until they have substantially more than just DNA at the scene to go on.
They’re certainly not going to go after you based on what you presented in your scenario since, barring your friend being a total sad sack, one would think that more people than just you had ever been in their place. So unless the DNA evidence collected is in the form of your blood on the victim and objects in the room, your skin under their nails, genetic material from you at the points of impact on the body and genetic material from you found on the murder weapon if one was used… No, they’re not going to come get you and declare you guilty because they found some hair or something at your friends place.
DNA evidence is a tool. DNA evidence is a tool no different than fingerprints or photographic and video evidence. And DNA evidence will be the tool that investigators will use in some cases to eliminate you as the suspect so that they can better spend their time looking for the real culprit and stop wasting their time with you.
Seriously, what is it about advanced sciences that makes people start freaking out and turning the use of those sciences in law enforcement into evil boogeymen in ways that fingerprinting and photographic evidence would never make them do?
“All they need to do is say you did something, and they can then harvest your DNA and compare it against every crime scene they come across from then on until they find something that you maybe did do (or at least that you then have to prove you didn’t – and since when is the burden of proof supposed to be on the defense?).”
And back to this point…
You’re wrong.
The argument you’re putting forward could apply to fingerprints as well. For that matter, it would apply to photographic evidence or video evidence.
If you get arrested, they fingerprint you. When they run your prints, you can have a cold case hit on the prints. It does happen from time to time. Your photo could go into the system and someone somewhere could see it and discover that you are a perfect match for the security camera image they have of a criminal.
Now, they’ll certainly check other things against that hit to see if you were even able to have committed the crime, but they may go ahead and start investigating the possibility of you having committed the prior crime as well.
It happens from time to time now. DNA isn’t changing anything in that regard. What it is changing is where people who were wrongly convicted of serious crimes like rape and murder may finally be cleared because when you get arrested it’s your DNA that clears them or the DNA evidence that they’re still able to test against them clears them.
This stuff really is a good thing. It’s not the Orwellian boogeyman that some want it to be.
Jerry Chandler: As a matter of fact, most of us who have discussed this in this thread who are in favor of collecting DNA evidence have stated that we would prefer a system where DNA evidence is either destroyed upon a ruling of innocence or not filed into the official data bank at all until a conviction.
If it’s supposed to be destroyed, or not entered into the official databank until conviction, then why collect it prior to that point? Instead of collecting something and then having to destroy it because you’re not allowed to keep it, wouldn’t it be far easier, more logical and less prone to mistakes (failed to destroy what should have been destroyed) to simply not collect it until you knew you were going to be able to keep it?
Why not just make the collection point conviction? The proposed law is that anyone arrested get DNA’d.
Jerry Chandler: What it is changing is where people who were wrongly convicted of serious crimes like rape and murder may finally be cleared because when you get arrested it’s your DNA that clears them or the DNA evidence that they’re still able to test against them clears them.
That’s not how it currently works so I can’t see that that’s how it’s going to start happening.
Prosecutors don’t look at DNA to see if it can clear anyone already accused of crimes. Folks who do want to show their innocence by getting additional DNA evidence tested have to fight to make that happen.
Okay, I only have about four minutes before I have to hit the door, but this one just has to be addresses.
“Why not just make the collection point conviction? The proposed law is that anyone arrested get DNA’d.”
Sean, it’s called DNA evidence for a reason. It’s evidence. what you’re saying right now would make about as much sense as saying that you couldn’t take fingerprints during the investigation to match to the fingerprints found all over the scene of a crime and maybe on the murder weapon because you should only take fingerprints at the time of conviction.
If they collect DNA evidence at the scene of a crime, it is, again, evidence. What good is it as evidence if you can’t use it? How do you point to DNA taken at the scene of the crime when in court and, depending on if you’re the prosecution or the defense, make the case of guilt or innocence based on a match or no match?
And you know what? Someone may be dámņëd thankful that they get their DNA collected and tested at the point of arrest these days. Now they won’t end up sitting in jail for years for a rape they didn’t commit when the DNA evidence collected from the victim shows that it’s not their DNA.
SDM: “Why not just make the collection point conviction? The proposed law is that anyone arrested get DNA’d.”
Yeah, I knew I was going to get called on that one even as I wrote it. I plead I was short on time and didn’t know how to succinctly discuss the distinction I’d make without distracting from the main point I was making in that earlier comment.
As you note, Jerry, “If they collect DNA evidence at the scene of a crime, it is, again, evidence.” Which I can see as an argument for being able to take DNA from an arrestee when DNA evidence has been collected. But what about all the times there isn’t any DNA evidence collected? If there isn’t any DNA evidence gathered then there’s no reason related to that crime to DNA anyone.
The only reason for doing so would be to add to the DNA database and as a law-abiding citizen I have serious concerns about that. If someone is convicted, then they lose certain things and get treated differently than the general population. If that includes getting their DNA put on file, I can go with that as part of the penalty that goes with being convicted of a felony.
But someone who is arrested and set free, because they weren’t convicted, becuase any charges were dropped, or in an even clearer example, because they were never charged in the first place, should not have any penalty. And that would mean they don’t get DNA’d.
JC: And you know what? Someone may be dámņëd thankful that they get their DNA collected and tested at the point of arrest these days. Now they won’t end up sitting in jail for years for a rape they didn’t commit when the DNA evidence collected from the victim shows that it’s not their DNA.
Quite possibly. But that’s a situation where DNA evidence was collected and a person has been arrested in connection with that particular crime. I don’t see anyone being “dámņëd thankful” for being DNA’d on some other arrest (where, for example, charges were never made) on the off chance that it will keep them from getting in trouble at some supposed future date. Again, if they’re concerned about that, make giving a DNA sample voluntary.
“Yes, we’re not going to charge you with anything. You’re free to go. But for your own safety, we’re going to keep a DNA sample on file. Just so you don’t need to worry about being falsely accused of something in the future.” Nah, can’t see anyone seriously making that argument.
Not having read the comments on this yet, I’m torn as well. On the one hand, the scientist in me is saying “look, DNA evidence is about as good as we’re gonna get — absolutely keep it. In fact, why not get EVERYONE’s DNA on record, so that crimes can be solved more efficiently and with a minimum of error?”
Then the civil liberties fighter in me says, “You must be related to Harry Sullivan, because you’re an imbecile. DNA evidence can be altered or tampered with, and power can and will be abused. No freakin’ way.”
I think that this time … the scientist in me wins. I’m okay with this law, IF we can establish at the same time that major penalties come into play for anyone in authority caught tampering with the DNA in any way. (By “major penalties” I mean jail time, not just a slap on the wrist and a reprimand.)
The only middle ground I can see here is to allow the law but change the terms — maybe change it so that you’re required to provide a sample upon conviction rather than arrest. But still, I think the basic conflict remains.
That’s where I fall, anyway. Now to see what everyone else has been saying.
I’ve always felt that if one accuses someone falsely of a crime or tampers with evidence to wrongly convict an innocent person, they should get the same penalty their intended victim would receive had the perfidy of the wrongdoer not been exposed.
That was what happened in ancient China, up to and including the means of execution. At least, that’s what I gathered from Robert Van Gulick’s notes in his Judge Dee novels.
Peter,
I haven’t read over the rest of the comments, but I really think this is not one of your finer posts on this blog. For much of this article, you’re depending on the slippery slope argument that is not applicable in law, economics, or pretty much any other setting you can imagine (outside of a literal slippery slope). Any case interpreting this law by the Supreme Court will be limited to just this holding (whether inmates can be required to give DNA). Anything beyond that (babies, searching vehicles, blah blah blah) is just you trying to incite an outrage where it is absolutely not applicable. Those are situations that are leaps and bounds away from this law and that are already covered by other 4th Amendment Jurisprudence. Also, note, this is a California law and the 4th Amendment is a Federal Law; do not try to apply the California law to national effect.
Also, I don’t work in Arizona, but instead in the Midwest as a prosecutor. Driving while Hispanic is not a crime, but driving without a license is. Any traffic offense is grounds to pull somebody over, and after question number one (give me your license and registration) a stop can go from a civil offense to a traffic offense in a hurry. Unfortunately, for some individuals this may be used as an excuse to harass Mexican or even Latin American citizens; however it is (or at least should be) the same procedure for any individual driving a vehicle on a public roadway.
I totally agree with many of the above posters. The data shouldn’t be documented until conviction.
What is kinda scary though is that in some cases they have been able to come up with a “familial match.” The DNA says, “It wasn’t this guy, but could have been one of his brothers.”
Another part of me wonders, though, if we shouldn’t have some giant database where, upon birth, all your DNA is entered into a system and that data is xferred into a criminal database ONLY whenever a conviction occurs. Police would not be able to access the main database w/o court order. But info could be used to identify bodies/remains. That is still a scary thought, though.
Jim “Spoon” Henry: part of me wonders, though, if we shouldn’t have some giant database where, upon birth, all your DNA is entered into a system … That is still a scary thought, though.
Extremely.
Sean D. Martin: “Actually, that’s a situation that requiring DNA samples would suddenly create. PAD’s example, for example… … in her death throes, scratched his face and there were DNA traces under her fingernails.” I’m not saying that being able to identify a serial killer isn’t a good thing. But I’m not going along with the naive idea that requiring DNA samples doesn’t change things.”
Uhm… No.
You’re attempting to split hairs to a ridiculous degree and declare that because something may change how an outcome might be affected in one example it is “new” despite prior forms of evidence having done exactly what you’re saying is going to be the new change for years now and in multiple examples. It’s not changing anything.
Before the advent of DNA evidence, you had evidence that would come along with a new arrest on a new case that would reopen and then clear old cases that had gone unsolved. Now that there’s DNA evidence available to law enforcement, you still have forms of evidence that can come along with new arrests in new cases that reopen and then close old cases. Before DNA evidence came along, you could have forms of old evidence from an old case help identify a suspect in a new case. Now that DNA evidence has come along? You still have forms of evidence from old cases that can be filed away and help identify a suspect in a new case.
There is absolutely nothing new in this concept. And, bonus, there’s absolutely, 110% nothing here that isn’t already covered by rules and regulations, laws and precedent in the legal system insofar as how to govern the use of the evidence and protect your and my rights. So the point that you’ve been making about this like it’s the first time ever in the history of law enforcement, criminal investigations and the legal system where this kind of thing might happen is a bit of a hallow point.
Sean D. Martin: “And getting declared guilty because your DNA was found at a crime scene isn’t a concern that I think I’ve seen anyone seriously put forth, so you’re choosing to argue against an objection that hasn’t really been made.”
Not you. It was basically along the lines that Jonathan (the other one) seemed to be to a degree where he was going up above.
http://www.peterdavid.net/index.php/2012/02/24/boy-im-really-torn-about-this/comment-page-1/#comment-663894
Sean D. Martin: “Where the concerns do lie, as was mentioned way up thread in some of the earliest messages, is that taking samples upon arrest could lead to more arrests being made just so DNA databases could be built up. There’s certainly a motive on the part of law enforcement to get as many samples as possible into their database if it’s going to help them solve cases they may not otherwise be able to solve.”
Again, no. First, the police as a whole do not just go and arrest people for no reason. And if you think that the police would do that just to increase the DNA material on file… You’re nuts. Beyond the simple fact that the process is just a wee bit expensive and the states might not take too kindly to the police doing that just because, there’s the little issue that, again, this isn’t a new concept.
You’re essentially putting forward ideas and arguments in a vacuum. If we let cops have access to DNA evidence, they might start making up reasons to arrest people to make more DNA evidence available to help solve old cases. Right. And since many old cases that are unsolved could be solved by finding the owner of certain sets of fingerprints, why have we not seen mass arrests for made up reasons to increase the number of prints on file? There are unsolved cases out there where the suspect description includes unusual physical characteristics like scars, injuries, birthmarks or tattoos in areas where you could only see them if the person is partially undressed. We keep records on file for scars, marks and tattoos. Where are the mass arrests for made up reasons just to fill up the files on information regarding arrested subjects with scars, marks and tattoos?
And you know why else that doesn’t work as an argument? Because police departments really, really, really don’t like being sued. Despite popular opinion created by a handful of real cases and a lot of bad fiction, it’s actually kinda hard to launch a program of mass arrests for bogus and trumped up reasons and not get sued for it. Our legal system is already set up to prevent things like that and, when it doesn’t prevent such things, to allow the wronged party to address that wrong through legal action. There really isn’t some giant group of police chiefs out there just itching to solve a handful of cases by risking breaking their departments’ budgets from getting sued by multiple people over bogus arrests.
Sean D. Martin: “How do you make sure that doesn’t happen? Because it will. And once DNA info is being stored, what prevents it from being used outside the realm of law enforcement? Insurance companies, just to name the obvious example, would love to have access to DNA info if it would enable them to weed out those more likely to make medical claims, or at least require that they pay higher premiums.”
Sean D. Martin: “Because fingerprints can’t also be used to deny you health coverage, to give one example. Fingerprints are pretty much limited to being able to be used to identify you. DNA can be used for so much more.”
You’ve brought this up multiple times now and it’s pretty much an irrelevant argument point to what we’re discussing.
Let’s say we give you what you want here. Police can never, ever, ever use DNA evidence again. They can’t collect it, they can’t cross reference it against suspect’s DNA and they can’t store the information in any way, shape or form. That doesn’t mean that there’s no such thing as DNA information on you out there now or down the road.
As far back as 2006 they were discussing in the news the fact that DNA-tailored medicine was moving into mainstream medicine. How do you think that they would tailor medicine to your DNA in such cases? They take samples and they pout it on file. They then keep it on file for future reference. We’re already seeing gene testing going on now with both the unborn and the born. We’ve seen DNA used to determine paternity. And I’m not talking about just some teen kid getting fingered as daddy. No…. There have been cases in recent history were people have found there deceased parent because the Medical Examiners Office or Coroner’s Office had either the deceased parent’s DNA on file from the medical exam.
The genie is out of the lamp, Sean. You can cut the knees out from under law enforcement’s ability to best investigate crimes all you want and you will still have that information out there somewhere right now. And in some cases, that information is being kept in places that are much closer to the insurance agencies than a law enforcement databank.
Plus, it, much like I said above about the law enforcement end of it, is nothing new.
The most you can say about this information is that it would be seen as a pre-existing condition. Right now, we have healthcare reforms coming along and actually in place that say that you as an insurance agency cannot deny coverage due to a pre-existing condition. Saying that your DNA shows that you have a greater than average chance of having a heart attack in your 30s than the average Joe is saying that you have a pre-existing condition. And that’s actually stretching the concept of a pre since you don’t actually have a pre, but rather you have a genetic disposition to maybe have an issue that might manifest itself somewhere down the road.
And if the reforms get repealed? What if we go back to pre-Obamacare situations where a pre gets you booted from the insurance rolls? Again, what’s new here?
One question I was once asked when looking into getting health insurance was about my family history. You think that maybe if I had said that we all lived to 110 years of age but had insane health issues from the age of 35 on that it might have had an effect on the outcome of my getting insurance whether they could legally play that game at the time or not? If you have a preexisting condition and you know that you do, you have to tell your insurer as you’re applying for the insurance. If you don’t tell them the truth and it’s later discovered by them while you’re being treated for something, related to the pre or not, they cancel your coverage. You could get insurance and not know that you have a pre until something happens. Does that mean that you’re fine and dandy? Not from what we’ve seen pre-Healthcare reforms since insurance companies have dropped people like hot rocks when they felt that the patient would be a long term drain on their profitability.
Nothing, absolutely nothing, is new in the scheme of things when you add DNA into the equation.
And nothing, absolutely nothing, about any of that has anything to do with law enforcement or criminal investigations. At best it’s unrelated side arguments meant to muddy the water and confuse the issue at hand.
Prop 69 should have one change to it. You should only be able to secure DNA evidence at the time of conviction unless there is a need to cross check the suspect’s DNA to DNA evidence collected at the scene of the crime. You don’t collect DNA when you pick them up for a petty charge like spray painting graffiti on a city building and the cops rolled up as the crime was in progress (thus eliminating the need for DNA evidence as an identification tool) or, as Peter noted above, you bust someone for a protest and cut them loose without even charging them for a crime. That’s where I think Prop 69 needs amending and addressing.
But all of this law enforcement boogeyman nonsense and all of these arguments that have nothing to do with law enforcement and that denying law enforcement the use of DNA evidence because of would not change the already marching medical progress with DNA data filing that you seem to fear so terribly anyhow? No. DNA matching is no different than fingerprinting and it will really do functionally no more or less in regards to ongoing cases or unsolved crimes than fingerprints do. The only thing it does is give an additional tool to do what’s already being done and what’s already something that the legal system is set up to deal with on that end and on the end of protecting citizens’ rights.
As for all of the stuff you’re throwing out here that’s not directly related to law enforcement? What you’re doing is little different than the people who say that we shouldn’t be researching fill-in-the-blank medical or scientific breakthroughs because one day it might be used as a weapon. And much like them, you’re dead wrong that stopping this in its tracks will in any way effect anything outside of law enforcement applications of DNA.
“So the point that you’ve been making about this like it’s the first time ever in the history of law enforcement, criminal investigations and the legal system where this kind of thing might happen is a bit of a hallow point.”
Or, you know… a hollow point.
SDM: “Because fingerprints can’t also be used to deny you health coverage, to give one example. Fingerprints are pretty much limited to being able to be used to identify you. DNA can be used for so much more.”
Jerry Chandler: You’ve brought this up multiple times now
Because you specifically asked what the difference was, Jerry. If you don’t want me to directly answer your questions, just say so.
Jerry Chandler: Let’s say we give you what you want here. Police can never, ever, ever use DNA evidence again.
And it you want to go hyperbolic and argue against something which I very specifically didn’t say, there really is no reason for me to respond at all.
“Because you specifically asked what the difference was, Jerry. If you don’t want me to directly answer your questions, just say so.”
Except, you didn’t directly answer the question or really stay in the general direction of the topic. You made the argument that DNA evidence would be used to match suspects to older crimes or kept around to finger people for new crimes based on their DNA data that was collected prior to the committing of the new crime and kept presenting it as if this was somehow a totally new thing under the sun. I pointed out that it was basically old hat for evidence collected and stored and that those things happened even before DNA came along. You couldn’t really rebut that so you then tried to salvage your point by going off into left field and claiming that police collecting and holding DNA evidence would lead to people getting denied health insurance.
But feel free to keep claiming that was a direct answer to the subject at hand or an in context answer to police using evidence from one crime to solve another.
“And it you want to go hyperbolic…”
And considering that most of your argument has been centerpieced by discussing how cops would go out on hunts for mass data collections by engaging in widespread false arrests, that police collecting DNA evidence is going to lead to people being denied health insurance and declaring that the same old routine procedures are somehow completely new and unprecedented actions thanks to DNA evidence… You really want to try and say that anyone else is being hyperbolic here?
But we can agree on one thing at least. I was already getting the feeling yesterday from your grabbing from out of left field answers to back points that don’t back what you originally presented, hair splitting to the Nth degree and your constantly framing your arguments by either essentially insulting cops or claiming that it’s the police collecting DNA that will have an impact on insurance rather than, say, the scientific or medical communities who don’t have some of the same legal restrictions on them that law enforcement does and have large chunks of their profession that, unlike police, are for profit that this was fast becoming a pointless endeavor.
So, yeah, at this point there really is no point in my bothering to respond to anything you say on the topic at all.
Except, you didn’t directly answer the question
Yeah, I did. You asked why I see a difference between fingerprints and DNA and I told you. You’re now telling me that when you asked for my opinion and I gave it to you that I answered wrong.
And considering that most of your argument has been centerpieced by discussing how cops would go out on hunts for mass data collections by engaging in widespread false arrests,
Interesting. When I say you’re going hyberbolic and claiming I said things I never did, you respond by… going hyperbolic and claiming I said things I never did.
To be clear, things I have said:
– DNA is not like fingerprints in that a DNA database can be used for things that fingerprints cannot be used for.
– When information is collected on people it tends to get into the hands of those who have an interest in it despite whatever assurances may be made initially that access will be strictly controlled.
– I don’t have a problem with collecting samples from convicted felons.
– I do have a problem with collecting samples from anyone ever arrested.
– There are legitimate concerns about building a massive DNA database that should be addressed.
But, since you disagree with you on that last point in particular, go ahead and continue to claim I’m saying cops will start going on organized arrest raids to grab everybody’s DNA and directly turn it over to insurance companies.
“”And considering that most of your argument has been centerpieced by discussing how cops would go out on hunts for mass data collections by engaging in widespread false arrests,”
“Interesting. When I say you’re going hyberbolic and claiming I said things I never did, you respond by… going hyperbolic and claiming I said things I never did.”
Really? You never said that, Sean?
Sean D. Martin
February 27, 2012 at 7:48 pm
“Where the concerns do lie, as was mentioned way up thread in some of the earliest messages, is that taking samples upon arrest could lead to more arrests being made just so DNA databases could be built up. There’s certainly a motive on the part of law enforcement to get as many samples as possible into their database if it’s going to help them solve cases they may not otherwise be able to solve. How do you make sure that doesn’t happen? Because it will.“
So when you said this you were actually saying that there would not be actions by law enforcement to get as many samples as possible into their database if it’s going to help them solve cases they may not otherwise be able to solve by going out and making mass arrests for just that purpose? And since you would at least have to have a reason to arrest someone beyond just DNA collecting for the database, as even the protester that Peter references in the original thread post was at least arrested for activities during a protest if not ultimately formally charged, you’re claiming that you’re concerned here that police might be going out there arresting people who are actually and legitimately violating municipal codes and breaking laws and thus being properly and rightly arrested and objecting to that concept I presume?
What you put forward reads as you saying that police would go out and start making more and more arrests just for the sake of building up the DNA database. The only way that they could do that, the only way they can make even more arrests than they are now by just arresting actual, legitimate criminal suspects, is to grab people for any reason they can make up on the spot. And that’s certainly what you’re saying here by claiming that you’re concerned that this
maywill happen since I can’t imagine any sane person being concerned that law enforcement might actually be efficient and be out there making legitimate arrests for legitimate reasons and arresting actual criminals who should be arrested and locked up for real crimes that they really committed.So either you did say it, and the above quoted passage from your post looks like you did, or you did such a horrendously bad job of not saying it that it just looks like you did.
Jerry Chandler: Really? You never said that, Sean?
That “cops would go out on hunts for mass data collections by engaging in widespread false arrests”? Yeah, show me where I said that.
Show me where I said that and I’ll demonstrate how you continue to overstate what I did actually say.
I just did. Deal with it.
We’re done or, at the very least, I’m done with you in this thread.
No, you didn’t, Jerry.
And you realize that, so you’re leaving.
Bye bye.
Blind much Sean? It may not be HOW you worded it, but Jerry is dead on.
Bladestar: It may not be HOW you worded it
Oh, please. I worded it exactly as I meant it. For Jerry to claim I actually said “cops would go out on hunts for mass data collections by engaging in widespread false arrests” is exactly the hyperbole I’ve accused him of.
And for you to claim that that is what I said, even though it’s not how I worded it, is ridiculous.
Would it be fair for me to claim Jerry advocated letting cops take DNA from everyone in the car any time there was a traffic stop? I mean, sure, it may not be HOW he worded it, but why trouble ourselves with what he actually said. It’s dead on, right?
Life is so complicated for liberals and their double standards.
If violence is wrong and kidnapping is wrong, it is still wrong when people with badges and the magical powers conferred upon them by capitalist funded elections do it.
Is it right for you to personally keep tabs on everyone you possibly can like a paranoid? Would you like your paranoid neighbor keeping records of your every movement and dna? No, it is not.
So the gang of thugs controlling the government should not do this either, regardless of their political persuasion.
Life is so simplistic for conservatives with their complete lack of understanding.
When liberals oppose violence and kidnapping and police abusing their authority, conservatives see it as a contradiction and double standard.
It’s essential to them that liberals believe certain things, regardless of whether they actually do or not.
The two of you are both living in a very simplistic world. Get out more, make friends with people who are not like you. Make decisions based on the facts, not based on what some poorly defined “other” thinks. Recognize the danger of conferring on an entire group of people the thoughts and actions of a single speaker.
Unless this was all an attempt at sarcasm, in which case, as the philosopher Emily Litella said, “never mind.”
Yes, Bill. Mine at least was very much an attempt at sarcasm. I was deliberately echoing Todd’s phrasing back at him to suggest how narrow and wrong his view is.
Glad you realized you might not be getting the sarcasm/parody or I might have to take offense at the presumption that I don’t seek a variety of opinions or make decisions based on facts.
I figured that was a likely scenario, though after slogging through some of my friend’s facebook updates you begin to wonder. his year can’t end fast enough.
Oh come on, Bill… I haven’t been that bad about the political season so far (yet.)
No, you’re fair. Hot both sides. Which makes sense, if you enjoy recording the idiocy of our political class it’s foolish to ignore the rich rich goldmine of examples that can be found on either one of the major parties.