Fault Lines
17 January 2019

The DNA Cash Cow: Did We Put The Cart Before The Horse?

Oct. 14, 2015 (Mimesis Law) — I wrote last week about some chinks in the DNA armor. More concerns are developing over our dependency on DNA testing in criminal cases and whether we put too much stock into a possibly inexact science. In addition to reliability problems, our ever-increasing expansion of DNA databases creates a separate disquiet related to privacy and genetic policing.

Since the 1990s, Congress has devoted a large amount of funds to forensic DNA research and development. This, of course, is directly related to the amplified use of DNA in criminal investigations. As DNA continued to become the so-called “gold standard” in law enforcement and this new reverence—bordering on obsession—meant that a tremendous amount of the federal funding allocated to crime labs was designated for DNA research.

The funding mechanisms for DNA testing far outstripped other allotments, despite the fact that, at that time, DNA testing represented a small portion of crime lab work. Two decades later, DNA testing is a focal point of many labs—forcing other traditional forensic areas to reduce or even shut down their units. As the NPR story pointed out last week,

…the justice system’s hunger for DNA evidence just keeps growing. There are now police departments that have made swabbing for DNA part of their routine.

But maybe it was too much too soon. We have a vast amount of biological input into the DNA system, and it’s not just juries and prosecutors that are hungry for more DNA evidence. With more input, comes the need for more warehousing and output, and that takes the form of DNA databases.

There are more than 190 public DNA laboratories that participate in the FBI’s CODIS program. The FBI meticulously details the categories of DNA profiles that can be entered into the national databank. This now includes arrestee profiles for various crimes—and not just violent ones. For example, “[i]f you’re arrested for having a dog off a leash in a federal park, you have to give a [DNA] sample” for the database.

What the FBI does not regulate, however, is just how those 190+ laboratories regulate, store, and search information that doesn’t make it into the national databank. This creates a regulatory gap and room for abuse. Moreover, with the advent and adoption of familial searching (i.e., where a profile can be linked to the family member of the perpetrator and that family member essentially becomes an unintentional genetic snitch), the use and potential misuse of databases increases.

This could be a recipe for disaster. We expanded the use of DNA so rapidly and invested so much funding that it may be too late to undo the damage. If we continue to learn that there are flaws in the accuracy and precision of DNA profiles, it upends an entire system built upon a science that while solid, needs room to grow and improve rather than being immediately being thrust into the deep end of the pool with the promise of perfection.

It is tempting to rationalize any errors or faults in the system with the notion that they are acceptable for the greater good. Without a doubt, DNA has revolutionized criminal investigations and prosecutions. Indeed, DNA database hits have been instrumental in linking criminals to prior unsolved crimes and bringing closure to many victims and families. DNA has demonstrated that we make mistakes and convict innocent people.

But DNA used to be corroborating evidence. Now, cases are brought and sold to juries with nothing more than just the DNA evidence. Because DNA has translated to “Do Not Acquit,” we have foregone old-fashioned investigative work that could in fact lead to other suspects and a different result.

I would posit that at this point, the continued expansion of DNA in criminal investigations is inevitable. The return on investment predominates all other considerations. But we do not live in a vacuum of DNA research and development. It should be predictable that DNA technology may advance and outpace the testimonial claims once thought to reliable and scientifically defensible.

But for the time being, the system seems content to accept evidence that operates on the limitations of untested (new) or mediocre (outdated) technology. Consequently, without asking the hard questions, we simply tolerate a certain margin of error that otherwise would be unacceptable. The criminal justice system craves for faster and more reliable methods of solving crime and convicting the guilty. The DNA infrastructure certainly feeds that voracious appetite, but perhaps we need to reconsider the stock we have put into DNA.

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