The Supreme Court, DNA, and Civil Liberties: A Constitutional Perspective

By Tim Peacock

Monday's Supreme Court decision on DNA evidence collection has left the internet in uproar not only on both sides of the aisle, but within each party as well. While some claim it's a violation of civil liberties, others are celebrating the Court's decision since the ruling means more murderers and rapists will face prosecution due to DNA testing and analysis. Somewhere in the midst of the celebrating and outrage lies the truth. For what it's worth, here's my opinion on the matter - an opinion supported by several years of Criminal Justice education (I have two degrees in it) as well as some minor study of Constitutional law in undergrad.

Right off the bat let's dispel any notion that the collection of evidence somehow violates the Fifth Amendment's protection against self-incrimination. Long ago the Supreme Court found that this particular amendment only pertains to communicative incrimination (such as bearing witness against ones self on a witness stand). The ruling occurred in 1966 in Schmerber v. California where the Court found "We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature,  and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends." In short, the Fifth Amendment has no bearing on exculpatory evidence like fingerprints and DNA evidence.

Fifth Amendment aside, many others argue that DNA collection violates the Fourth Amendment's search and seizure protection guarantee. In his scathing dissent, Justice Scalia wrote, "Make no mistake about it. Because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason." Note he doesn't say the government will be going door to door collecting DNA nor will it be collecting DNA unless reasonable suspicion of crime exists. Why should that matter?

It's the standard we already use for other pre-conviction arrest procedures such as fingerprinting and photographing - both of which are also collected and preserved for future use by local, state and federal law enforcement agencies. We fingerprint anyone suspected of and arrested for a crime whether they're guilty or not. And in many cases, the fingerprints may later absolve them of the crime if they do not match the fingerprints collected at a crime scene. The same is true of DNA evidence - it has no bias nor any of the memory problems that plague witness testimony. It only has the power to definitively prove whether or not a suspect committed a crime where DNA evidence was collected that can be used for comparison purposes.

Justice Kennedy agreed when he said in the majority opinion, "Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment."

DNA versus Fingerprint Collection
Source: nadil -
The majority of the pushback against DNA collection doesn't seem to stem from its current use so much as its potential use. Scalia's dissent crystallizes this dystopian vision perfectly. "This will solve some extra crimes, to be sure. But so would taking your DNA when you fly on an airplane – surely the TSA must know the `identity' of the flying public. For that matter, so would taking your children's DNA when they start public school," he argued. 

People seem to fear the potential for abuse in DNA collection - whether it's using it to target those who have committed non-violent crimes or even the biological/genetic side of the debate ("I don't want them owning my DNA and knowing that much about my insides!" was actually an argument someone on Facebook made in response to the decision.) While I could write a book on this subject, I'll address this particular point succinctly: using potential abuses by a handful of people or groups as justification for the discontinuation of valid scientific techniques to solve crime constitutes one of the laziest uses of the slippery slope fallacy I've ever seen. You may as well argue that gays getting married will lead to people marrying horses and broomsticks.

Furthermore, the same argument could be used for other exculpatory evidence such as fingerprints. In fact, don't law enforcement agencies regularly run prints when arresting someone (and sometimes even prior to it) when they have a suspect in a criminal case? The system they use - AFIS (Automated Fingerprint Identification System) - is nearly identical to the frightening dystopian future DNA detractors seem to be arguing against. What makes one national data collection system okay and the other a violation of civil liberties? They're both non-communicative evidence collected during an arrest booking. They're both related to individuals already suspected of a crime. They're both proven methods of solving murder and rape cases faster and more accurately. They're both methods of solving cold cases as well.

As it stands, the majority of arguments claiming civil rights violations have little to nothing to do with the ruling or the current way DNA samples are collected and used. They're mostly concerned with the "what-if" scenarios ranging from HIPAA violations to convicting anyone arrested for past crimes they committed. For the latter I have to say this: what's wrong with connecting someone arrested to an actual crime they committed and got away with in the past? What if that crime was a rape and the woman was someone you knew? Would that make a difference in your logic? 

The only argument against DNA collection I've seen thus far that holds water is cost - mainly, it costs more to collect and process DNA than it does to collect and process prints. But should we base a decision that could potentially solve more crime off the nominal cost of processing a handful of DNA tests for violent offenders? Law enforcement agencies in many states have decided that the benefits outweigh the costs (as DNA collection is already standard in 28 states as well as the federal government). If a suspect is arrested for probable cause connected to a serious crime, I fully support their right to collect whatever exculpatory evidence necessary to either make a conviction or clear a suspect - and in the process also cross check for any prior crimes while they're at it. We already do the same with photographs and fingerprints - so tell me why it's so wrong to continue technological advancement in the field of crime solving? 

About Tim Peacock:
For virtually his entire life, Tim has been writing. Over the years he's dabbled in mainstream fiction, science fiction, dystopian fiction, and personal essays. The one consistent thread through his entire writing career has been blogging - he's been doing it since 1997 in one form or another. In creating Peacock Panache, he's combined two of his favorite hobbies: blogging and current events/politics. When not working here, Tim toils away at editing & rewriting the novels he's completed over the years. You can read samples of his other work here.

You can find Tim elsewhere online at his personal website. You can also find him on LinkedIn as well as on Twitter as @timsimms