On Monday, a divided United States Supreme Court approved Maryland’s DNA law, signifying a major change for DNA collection. The Supreme Court’s decision in Maryland v. King expands DNA collection to include people arrested —prior to their proverbial day in court. More than half of the states allow DNA samples to be routinely taken from people under arrest. Right now Massachusetts is not among those states. Every state including Massachusetts, however, does collect DNA from people after they are convicted of crimes for purposes of identifying repeat criminal offenders.
There have been legislative proposals filed for several years here in Massachusetts that would mirror Maryland’s DNA collection law. There have even been attempts to accomplish the same thing by attaching amendments to the state budget. Opponents, including civil libertarians and defense attorneys, argue that this would be unconstitutional and an invasion of privacy.
Supporters of these bills have described them as simple and balanced – protecting the innocent while enhancing public safety. A cheek swab test would be taken at the time of arrest and investigators could use that information for links to other crimes. Supporters of these bills maintain that there is no risk associated with any of this for an innocent person. They claim that DNA information would not be entered into any state database until after a felony conviction and would expunge the DNA evidence from any person ultimately found not guilty.
Not so fast! Despite what some say, there is a whole lot of risk associated with DNA and its collection. Here in Massachusetts we’ve enjoyed some recent victories in the area of DNA. In 2012, Governor Patrick signed the DNA Access Bill, which gives individuals convicted of crimes a chance to use DNA evidence to prove their innocence and overturn their convictions if they meet certain criteria. We’re proud of our work in this area. The reality is that sometimes our justice system gets it completely wrong. Anything that actually ensures public safety and brings a sense of confidence to our justice system is good.
There is just no way that DNA evidence can be described as an incontrovertible link to innocence or guilt. There is a common perception that DNA is faultless and flawless as far as forensic evidence goes. It can help convict the guilty while freeing the innocent, but there are limits to the power of DNA. DNA can be misused, human error can come into play and we are still learning these lessons from the Annie Dookhan catastrophe. Expansion of DNA databases may well be logical and appropriate to identify individuals who commit certain types of violent crimes. Moving beyond those purposes is where the rights and privacy of individuals must be weighed against the benefits of this type of expansion.
- Kathleen Joyce
Director of Government Relations
Boston Bar Association
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