I Just Want Your DNA

Even DNA from people who do ancestral testing can find its way into police databases.

If police come to your home and ask for DNA, would you give it, or would you demand some kind of warrant first?  You might also want to hear some reasonable explanation of why your DNA is being requested.

What if you knew that DNA matches aren’t as infallible as television portrayals?  Instead, they depend on the quality of the sample, how many other people’s DNA are mixed in, and the algorithm the particular forensic lab uses to determine probability statistics. A “match” can mean a lot or a little.  It all depends on how trustworthy the comparison is.

Finally, what if the DNA taken from you, even as an elimination sample, was to be kept indefinitely in a database without your knowledge or consent.

The actual taking of the DNA isn’t the problem.  It’s a relatively quick and totally painless process. DNA in the form of saliva is “harvested” from inside your mouth by rubbing a Q-Tip or small brush.  The sample is then placed in a sterile envelope and sent to a lab.  The profile generated (called an electropherogram) will be clear-cut and pristine, made up of a series of peaks that provide a presentation of your genetic makeup.

The problem is that the sample taken from your mouth is then compared with samples from crime scenes that are generally not as pristine.  The grip of a gun, for example, that has been handled by three or more people, might have barely enough DNA to compare to yours, and would show a mixture of DNA. However, labs could still compare that sample to your DNA and if your DNA does not affirmatively eliminate you as a contributor, you could still be included as a suspect.

Mixed-source DNA, especially when the crime-scene sample is as small as a pinprick, makes comparisons especially difficult and dangerous to suspects whose DNA profiles do not eliminate them from all suspicion.

DNA databases are growing nationwide.  I’ve been seeing more and more instances where DNA is gathered surreptitiously to establish probable cause to arrest, rather than to strengthen a case once the suspect has already been arrested. It’s not uncommon for police to offer suspects cigarettes or glasses of water in order to use the discarded cigarette butt or straw for DNA testing.  They might offer a suspect a can of soda, not to quench his thirst, but to have a surface from which to collect DNA.

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I’ve known police officers who have searched garbage pails for anything that might carry DNA, including dirty diapers to establish paternity in family court cases.

Nowadays, it’s standard that people arrested and convicted of crimes provide DNA, even for misdemeanors.  Yet more and more DNA is getting into databases not because people have been arrested or are suspects, but as a shortcut around investigations.

In the recent high-publicity murder case of Karina Vetrano, a young female jogger in Queens, police sought saliva samples from 360 black men in Brooklyn and Queens. According to reports, many of the men were cajoled, coerced, and even threatened to give their DNA samples.

Once given, the samples went into databases even if those men were eliminated as suspects in the crime.  This goes for victims of crimes, too.  Their DNA is routinely collected to distinguish their biological material from that of the perpetrator and later stored indefinitely in the databases.

Without the regulations that govern the FBI or state medical-examiner data systems, police bureaus that collect DNA have fewer restrictions on how and when the data can be used, and how long it will remain in the system.

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Even DNA from people who do ancestral testing can find its way to those databases.  According to reports, some of the major companies that provide DNA ancestral testing share their information with law enforcement, ostensibly to solve crimes.  Police cracked the case of the “Golden State Killer” in 2018 based on a comparison with the DNA of the killer’s relative.

An estimated 10 million people have had their DNA ancestry traced and there’s more every day.  That’s a lot of DNA data being shared without the providers’ permission or knowledge.

Maybe it doesn’t matter to those people if they’ve never done anything wrong and have no fear of being sought by police.  But for people who don’t even like to use E-ZPass because it gives the government a way of tracing them, I imagine this makes them uncomfortable.

Plus, even if you’ve done nothing criminal, think about your weird Uncle Louie.  He’s still part of the family.  Would you want to inadvertently turn him in?


Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.