On July 13, arguments were heard before the 9th Circuit Court of Appeals challenging California's Prop. 69. Under that law, anyone arrested for a felony can have a sample of DNA taken and it will be added to a state database, whether or not they are ever convicted of the felony.
According to the San Francisco Chronicle, the lead plaintiff in the case, Elizabeth Haskell of Oakland, was arrested in March 2009 at an anti-war rally in San Francisco on suspicion of forcibly trying to free another protester. She was eventually released without charges. Haskell gave her DNA to police after being told she would be charged with another crime and held in jail if she refused.
Haskell's attorney from the ACLU, Michael Risher, argued to the court that this kind of identification was an unconstitutional invasion of privacy because DNA sampling is much more invasive and tells much more about a person than a fingerprint. "I shake hands when I meet people," Risher said. "I don't let them put things in my mouth."
On the other side of the argument was the question of whether a sample of DNA is so very different than a fingerprint after all. The Chronicle reports Judge Milan Smith said DNA testing, taken with a swab from the inner cheek, is no more intrusive than fingerprinting and is "a really good way of identifying people." He wondered if Risher was asking government officials to be "Luddites (who) can't use modern technology."
The recent case of Los Angeles serial murderer the "Grim Sleeper" was also part of the argument. Murder suspect Lonnie Franklin, Jr. was arrested last week on suspicion of 10 murders dating back to 1985 after his son was arrested for an unrelated charge and his sample of DNA led police to Franklin via "familial" DNA testing.
The court questioned Risher about the Franklin case, asking whether the enhanced ability of police to solve "cold cases" might be worth a minor intrusion. The ACLU lawyer replied that police could have taken a DNA sample from Franklin after Prop. 69 passed in 2004, when Franklin was on probation for receiving stolen property.
Finally, Risher argued that DNA was not just a "better" fingerprint, but something wholly different. "Our fingerprints tell us nothing about ourselves," Risher said. "DNA tells us everything."
- ACLU says California DNA law violates privacy (San Francisco Chronicle)
- Brown, ACLU battle over DNA sampling (Contra Costa Times)
- DNA Evidence: It's in Your Genes (FindLaw)
- Fifth Amendment Right Against Self-Incrimination (FindLaw)
- Constitutional Protections for Defendants (provided by The Law Offices of Thomas Glasgow, Ltd.)
- Crim Law FAQ (provided by The Law Offices of Howard A. Snader, LLC)