Offender Databases and Familial Searches: Social, Ethical, and Legal Issues Mary Terrell White, PhD Department of Community Health Boonshoft School of Medicine Wright State University

Ethical Issues in Forensic DNA Profiling Genetic privacy Genetic privacy Use of stored samples Use of stored samples Relationship between forensic geneticists and law enforcement Relationship between forensic geneticists and law enforcement Possible conflicts of interest, corruption of evidence, discrimination, etc. Possible conflicts of interest, corruption of evidence, discrimination, etc. Issues of accuracy, accountability, proficiency testing, limits of technology… Issues of accuracy, accountability, proficiency testing, limits of technology…

Databases Inclusion criteriavary by state Inclusion criteriavary by state Convicted felons, misdemeanors, suspects Convicted felons, misdemeanors, suspects Seven states include arrestees Seven states include arrestees 28 states include juveniles 28 states include juveniles Federal arrestees and non-US detainees Federal arrestees and non-US detainees CODIS as of May, 2007 CODIS as of May, 2007 Forensic Profiles: 177, 870 Forensic Profiles: 177, 870 Offender Profiles: 4,582, 516 Offender Profiles: 4,582, 516 Growing by 80,000 profiles/month Growing by 80,000 profiles/month

Partial Matches and Familial Testing Since July 2006, FBI has permitted states to share DNA profiles. Since July 2006, FBI has permitted states to share DNA profiles. Partial matches offer a way to expand a suspect pool to include close relatives of known offenders. Partial matches offer a way to expand a suspect pool to include close relatives of known offenders. 46% of prison inmates have a relative who has been incarcerated. 46% of prison inmates have a relative who has been incarcerated. Bieber (2006) anticipates that familial testing could lead to thousands more convictions. Bieber (2006) anticipates that familial testing could lead to thousands more convictions.

Ethical and Legal Issues What are the Constitutional limits (if any) to familial genetic searches? What are the Constitutional limits (if any) to familial genetic searches? What expectations of privacy are at risk for relatives in familial searches? What expectations of privacy are at risk for relatives in familial searches? To what extent would familial searching disproportionately affect people from certain races, ethnic groups, or social classes? To what extent would familial searching disproportionately affect people from certain races, ethnic groups, or social classes?

Constitutional Limits: Fourth Amendment Right of privacy: right of persons to be secure..against unreasonable searches and seizures. Right of privacy: right of persons to be secure..against unreasonable searches and seizures. DNA search is justifiable based on totality of the circumstances and special needs doctrines. DNA search is justifiable based on totality of the circumstances and special needs doctrines. Offenders have diminished privacy rights. Offenders have diminished privacy rights. Public safety outweighs privacy interests. Public safety outweighs privacy interests. Blood draw is not significantly intrusive. Blood draw is not significantly intrusive. Persons body and home are not searched. Persons body and home are not searched.

Fifth Amendment Does one have a right to keep silent/not to self incriminate? Does one have a right to keep silent/not to self incriminate? Does one have a right to protect ones family? Does one have a right to protect ones family? Does one have a right to refuse to cooperate? Does one have a right to refuse to cooperate?

Suspects experience Unpleasant interview, esp. if African-American, Muslim, Hispanic. Unpleasant interview, esp. if African-American, Muslim, Hispanic. Providing a genetic sample may exacerbate sense of insecurity. Providing a genetic sample may exacerbate sense of insecurity. Refusing to cooperate may lead to increased surveillance. Refusing to cooperate may lead to increased surveillance. Interviewing relatives is not uncommon in criminal investigations. Interviewing relatives is not uncommon in criminal investigations. If suspect is innocent, is investigation harmless? If suspect is innocent, is investigation harmless?

Questions To what extent should profiled individuals be expected to help investigators? What rights of refusal are morally and legally defensible? To what extent should profiled individuals be expected to help investigators? What rights of refusal are morally and legally defensible? How can DNA be obtained from relatives without suggesting coercion, violating the person's presumption of innocence, right to keep silent, and privilege against self-incrimination? How can DNA be obtained from relatives without suggesting coercion, violating the person's presumption of innocence, right to keep silent, and privilege against self-incrimination? Does profiling DNA without the person knowing about it constitute an unwarranted invasion of privacy? Does profiling DNA without the person knowing about it constitute an unwarranted invasion of privacy?

Privacy Are any expectations of privacy at risk when family members of known offenders are automatically considered suspects? Are any expectations of privacy at risk when family members of known offenders are automatically considered suspects? Feeling of being watched, under suspicion Feeling of being watched, under suspicion Infringement on freedom of self-determination Infringement on freedom of self-determination How is a genetic profile different from a numerical identifier like a SSN? How is a genetic profile different from a numerical identifier like a SSN? How should unexpected findings be handled? How should unexpected findings be handled?

Discrimination Overrepresentation of African-Americans in jails and DNA forensic databases (about 40%). Overrepresentation of African-Americans in jails and DNA forensic databases (about 40%). Those who have been victimized by police for decades may find DNA profiling threatening. Those who have been victimized by police for decades may find DNA profiling threatening. What does justice require? Can there be equal treatment? What does justice require? Can there be equal treatment? Is the solution a national database? What privacy/liberty issues would this raise? Is the solution a national database? What privacy/liberty issues would this raise?

What Next? Balancing Public Safety with Individual Rights Who should be included in the forensic databases? Who should be included in the forensic databases? What professional standards and regulations ought to govern DNA profiling and databanking? What professional standards and regulations ought to govern DNA profiling and databanking? What constraints ought to govern familial searches? Ought the use of familial searching to be restricted to certain kinds of crimes or stages in an investigation? What constraints ought to govern familial searches? Ought the use of familial searching to be restricted to certain kinds of crimes or stages in an investigation? In conducting familial searches, how should genetic material be obtained from relatives? What policies and procedures should govern how offenders and relatives of offenders are approached, and what rights of refusal should they have? In conducting familial searches, how should genetic material be obtained from relatives? What policies and procedures should govern how offenders and relatives of offenders are approached, and what rights of refusal should they have?

What rights should innocent relatives of offenders have over what is done with their genetic samples and profiles--does law enforcement have any right to retain them, or duty to expunge them? What rights should innocent relatives of offenders have over what is done with their genetic samples and profiles--does law enforcement have any right to retain them, or duty to expunge them? If unexpected information emerges, who is responsible for harms that may follow? If unexpected information emerges, who is responsible for harms that may follow? How can issues of racial, ethnic, and political discrimination be controlled in familial searches? How can issues of racial, ethnic, and political discrimination be controlled in familial searches? How should these questions be explored and resolved, and by whom? How should these questions be explored and resolved, and by whom?