June 4, 2013

"If DNA sampling was actually like fingerprinting, [the Supreme Court's] argument might be convincing."

"But of course it isn’t. Fingerprints are a phenotype that reveals nothing except a random pattern that no two individuals share. DNA, however, is your genotype: the blueprint for your entire physical person. If the government has my fingerprints, it’s like they have my randomly assigned Social Security number. If it has my DNA, it’s like they have the entire operating system."

Harvard lawprof Noah Feldman says in "Court’s DNA Ruling Brings U.S. a Step Closer to 'Gattaca.'"

Like many, Feldman bestows admiration on the oft-scorned Scalia, who dissented. Feldman — despite the admiration — refers to the Scalia opinion as "his pungent dissent." I guess he wanted a less-common adjective to tack onto the word "dissent." What are the usual words? Stinging, sharp, pointed, biting...
But "pungent"? Doesn't that mean smelly? Feldman doesn't intend an insult, so, did he — shunning the trite — pick the wrong word? Actually, no. The (unlinkable) Oxford English Dictionary gives 6 meanings for the adjective "pungent," and they justify it as a compliment paid to a strong and well-written dissenting opinion:
1. Of pain: as if caused by a sharp point; piercing, stabbing; pricking....

2. Sharp; piercing; that has sharp points....

3. Forcefully or incisively expressed; (of argument, opinion, etc.) convincing, persuasive; sharply critical; (of censure) trenchant, biting....
1747   J. Edwards True Saints vi,   He expressed himself with that exact propriety and pertinency, in such significant, weighty, pungent expressions, with that decent appearance of sincerity.
1761   tr. C. Batteux Course Belles Lettres III. ii. v. 195   This poet is author of two satires universally esteemed the most pungent and best written in our language....
1876   Atlantic Monthly Aug. 202/2   He forced the unwilling esteem of men by his inflexible probity, his pungent logic, and his untiring industry.
1953   E. Jones Sigmund Freud I. viii. 168   She had a pungent tongue that contributed to a store of family epigrams....
4. a. Affecting the sense organs, esp. those of smell or taste, with a sharp, penetrating sensation; acrid, irritant; intensely flavoured, piquant....

5. Strongly or painfully affecting the feelings; intense, keen; painful, poignant. Now rare and literary....

6. Mentally stimulating or exciting; fascinating. Now rare....
I think the "smelly" connotation arose — a rose! — over the years as people used the word as a humorous euphemism, causing it to sound — at least to me — like a insult. I will reassign it to my mental list of noninsults.

In addition to troublesome words like "pungent," we're expected to get "Gattaca." That's a movie I put on my "watchlist" at Amazon after I saw that it was one of "The Top 5 Underrated Sci-Fi Movie Masterpieces."

89 comments:

rhhardin said...

Truculent and trenchant are also available, if you can remember which is which.

bagoh20 said...

Chinese restaurants often translate the names of their dishes as "Pungent" this or that. It does not sound appetizing.

sinz52 said...

Feldman: "If the government has my ...DNA, it’s like they have the entire operating system."

So what? What could they possibly do with it that could possibly harm you?

Feldman has a point: DNA isn't like fingerprints. But DNA is just an extension of the rest of your physical profile: Your height, weight, skin color, eye color, photograph of your face, any chronic tics, addictions, anything else physically that could help identify you. And the government already keeps that kind of stuff on file.

Mitchell the Bat said...

They used to advertise Aramis men's cologne as "peppery and potent."

That was a turn off, in my opinion, and kind of gay.

Lyssa said...

So what? What could they possibly do with it that could possibly harm you?

And so what if they want to listen in on my phone calls - what are they going to do with my conversations about what my kid and dog are up to that would harm me? And what if they want to just search my house whenever? I mean, I don't have anything illegal there, so what's the big deal?

Mitchell the Bat said...
This comment has been removed by the author.
SteveR said...

High school biology was a long time ago, thanks Professor Feldman for the refresher. If the government wanted my operating system they would not have to wait for me to be arrested. That cat's out of the bag. At least when Glenn Beck drums up the paranoia, he's using it to make money.

Nonapod said...

I wonder why the collection of fingerprints don't qualify as unreasonable search and seizure? IANAL prof and I'm sure that's well trodden ground.

Achilles said...

I am sure we can trust the government with this information. They haven't abused all of the other information they collect have they? We also need to let them have a complete mental health assessment of all citizens so we can treat all of those sick people that don't support Obama. And a complete gun registry so we can help all those bitter climbers stop clinging.

Scott M said...

The closer to Gattica we get, the better. I want to go to Saturn.

Jay said...

sinz52 said...

So what? What could they possibly do with it that could possibly harm you?


I hope this is parody.

Achilles said...

I forgot to add: it is for the children's!

Achilles said...
This comment has been removed by the author.
cubanbob said...

The 5th Ammendment is Old School and no longer has a place in The Modern World unless you happen to be a State functionary.

Levi Starks said...

I've never scorned Scalia

Robert Cook said...

I saw GATTACA when it came out, but can scarcely remember it at all.

I think I liked it.

Robert Cook said...

"Truculent and trenchant are also available, if you can remember which is which."

Who could confuse these two words?

jr565 said...

" If the government has my fingerprints, it’s like they have my randomly assigned Social Security number."

Um, I think the govt issued me my social security number. How is it that they don't have it?
Every year I get a printout of how much I should get from SS when I retire. I'd think that therefore they would know what it is.

Jay Vogt said...

Overthinking. He saying, "It stinks - badly". And, he's right.

Rabel said...

She wanted to use "garlicly" but feared the Italian backlash.

Rabel said...

She = he. Like in the earlier post.

Lem said...

I remember thinking the same thing (Gattaca) yesterday.

But I didn't mention it for some inscrutable reason.

Maybe, in the back of my mind there is a revising committee busy making a lot of changes.

And by the time its done Gattaca is going to come off looking like a great idea.

Brian said...

It's less like having "the whole operating system" and more like having the heavily encrypted contents of your hard drive. It would take extraordinary effort and real scientific advance to turn the collected samples into anything resembling clear text. And of course all that effort may or may not yield anything actually useful to the government.

None of which means it is or ought to be OK for the government to collect it willy-nilly.

Writ Small said...

If 98% of readers must consult external sources, is the word actually condign?

Paco Wové said...

It's the whiff of Beelzebub.

bbkingfish said...

Yes, Scalia's thoughts normally emanate a foul, offensive odor. To the extent that his thinking is odoriferous, Scalia's criticism is "pungent."

Lem said...

Somebody pointed out yesterday (I'm going to use my words and rephrase) that some of the impetus driving this is that the cost to collect and save this information is no longer prohibitive.

I mean, doesn't it beg the question, to ask, What else has changed in the mean time, from the time the technology was discovered to now? except for cost?

If cost becomes the principle arbiter organizing... that's it isn't it?

Colonel Angus said...

I want to go to Saturn.

Not afraid of sandworms?

Lem said...

The cameras monitoring our every movement are not up yet because we have objections to them as a matter of well established unalterable principles of privacy and whatever.

They are not up yet because it still cost too much.

edutcher said...

Granted, the "What could go wrong?" bells should be ringing, but the issue of taking fingerprints for anyone in the system, guilty or not, seems just as bad in Feldman's context.

DNA is even more unique than fingerprints so, in Feldman's argument, it would seem he's splitting hairs.

And, yes, I may be missing something here.

Scott M said...

Not afraid of sandworms?

Nah. If Gina Davis can handle them, so can I.

Colonel Angus said...

And so what if they want to listen in on my phone calls

Assuming they have probable cause they get a subpoena to tap your phones?

I guess I'm agnostic on this since I haven't read enough on it but when you are arrested the police already use two methods for identification: Fingerprints and photograph. I can see the conflict since DNA is much more personal, for lack of a better word.

wyo sis said...

"I mean, doesn't it beg the question, to ask, What else has changed in the mean time, from the time the technology was discovered to now? except for cost?"

Cost may be a factor, but the real thing that has changed is the idea that the government has the power to take and keep on record personal and potentially harmful information about you.
It's much more than fingerprinting where it's used to identify a criminal. It's medical information that the government and employers can use to determine a lot of things about you that affect your life whether you're a criminal or not.
And it gives the power and thus the potential to the government to declare what is contained in your DNA risky, or criminal, or a basis for removing you from society and yes even for so called death panels.

If this sounds paranoid look around you. It really sounds possible, and even probable. Apparently the content of your thoughts and prayers are legitimate possessions of the government.

bagoh20 said...

"So what? What could they possibly do with it that could possibly harm you?".

Deny you an organ transplant or other expensive treatment because you are not ideally suited. In other words: let you die unnecessarily to save money. Nothing important.

bagoh20 said...

The difference between fingerprints and DNA is like the difference between the government knowing your phone number or recording your calls.

Michelle Dulak Thomson said...

Lyssa,

And so what if they want to listen in on my phone calls - what are they going to do with my conversations about what my kid and dog are up to that would harm me? And what if they want to just search my house whenever? I mean, I don't have anything illegal there, so what's the big deal?

I wrote my parents (in MD) yesterday to see how they were liking their state's new-found celebrity, and both of them were totally down with the majority opinion. In fact, my Dad practically said what you just wrote satirically, only in perfect earnest: If you haven't done anything wrong, where's the harm? He's keen on surveillance cameras, too.

Maybe I've finally found a subject on which I'm to my parents' left. Or maybe not; an awful lot of our incipient Panopticon owes its existence to the left.

Colonel Angus said...

Nah. If Gina Davis can handle them, so can I.

Touche.

Michelle Dulak Thomson said...

I described Scalia's dissent as "pungent" myself when I wrote my folks. FWIW. Useful word.

ricpic said...

Scathing dissents are the most fun dissents of all.

Michelle Dulak Thomson said...

rhhardin,

Truculent and trenchant are also available, if you can remember which is which.

With a Scalia dissent, you can generally count on both being accurate.

SteveR said...

I'm still not buying into the bad uses of my DNA by the government. I've never been arrested and likely never will be. So myself and I am sure most Americans won't be in that system. If the government is up to no good, they won't limit themselves to that method to collect DNA since they would obviously want many more data points. Yes there's reason for mistrust but they can listen to your phone calls and read your emails already and no doubt they can collect your DNA without your knowledge as well.

Michelle Dulak Thomson said...

That the majority opinion insists that MD was only trying to identify the arrestee -- i.e., make sure that he was who he said he was, what was on his driver's license, and so forth -- is ludicrous. If you are trying to find out whether someone is who he says he is, do you cross-check his genetic material against a database of genetic material from the scenes of unsolved crimes -- material that definitionally has no names attached to it? Honestly?

The only point of the search they did do (and they took their sweet time about it, too) was to see if they could link the guy they had in custody for a current crime to any past unsolved ones. In other words, to crimes they weren't investigating with him as suspect, and for which they had no probable cause to investigate him.

Jay said...

SteveR,

What, exactly, is accomplished here by abandoning the probable cause standard?

Michelle Dulak Thomson said...

SteveR,

I'm still not buying into the bad uses of my DNA by the government. I've never been arrested and likely never will be. So myself and I am sure most Americans won't be in that system. If the government is up to no good, they won't limit themselves to that method to collect DNA since they would obviously want many more data points.

On the contrary. If the government were up to good -- wanting DNA profiles merely as a measure to identify people, one superior to fingerprinting -- then it would want as many data as possible, and would try to establish a genuine national database, by (say) throwing buccal swabs in with our near-universal vaccinations or the like.

Instead, we have two databases: (1) people who have been arrested; and (2) samples taken from crime scenes. MD's contention seems to have been that they were only cross-checking (1) and (2) in King's case to find out if he was really King. Which, obviously, such a cross-check could not show, because (2) doesn't have any identities attached to it.

AllenS said...

I've had my DNA tested twice, the first time by FamilyTree and then by Ancestry.com.

I see no difference between the police fingerprinting you and taking a DNA sample. They can easily look at your IRS history, listen to your phone calls and record them. Put a 24 hour surveillance on your home. The list goes on.

AllenS said...
This comment has been removed by the author.
traditionalguy said...

But when Evangelical Christian Fundamentalism is declared to be a mental illness and DNA markers identifying it are made up by "science", then the Eugenics express will roll again to save the world.

Frankly, anyone who trusts in the good will of a Government that pumps out propaganda is the mentally ill one.

Bryan C said...

"It would take extraordinary effort and real scientific advance to turn the collected samples into anything resembling clear text."

In 10 years that will change, but your DNA won't.

LarsPorsena said...

How does facial recognition software fit in? Like fingerprints or DNA?

Michelle Dulak Thomson said...

AllenS,

I see no difference between the police fingerprinting you and taking a DNA sample. They can easily look at your IRS history, listen to your phone calls and record them. Put a 24 hour surveillance on your home. The list goes on.

For most of these things they need a warrant. This was a warrantless search of the person, without any of the usual reasons to do one on someone who's been detained ("he might be armed" and "he might be concealing evidence with a view to destroying it" are the big ones, I think).

traditionalguy said...

The Bill of Rights was enacted in 1787 because the murderous British Monarchy and its arrogant Aristocracy in London was making up false accusations whenever they needed one as a cover for looting and pillaging their serfs/slaves/subjects in the 13 Colonies.


Nothing has changed except our learned trust in our Government that was not a Monarchy for 220 years until 2008.

Richard Dolan said...

I thought Scalia had the better of the Fourth Amendment point, but the case struck me as offering a lot of effort for very little result. The reality (as Feldman says in passing in his piece) is that we all leave DNA behind whenever we do anything -- take a sip of water, and you leave behind a little; use a fork or spoon and same result; sleep on a bed or use a towel, woops there it is again; and on and on. In short, collecting DNA from an incarcerated person, whether or not convicted, doesn't require a search or a seizure; and without a search or seizure, there is no Fourth Amendment issue to analyze. Same goes with all of us who aren't under arrest -- collecting DNA is just a matter of will, since the way is not hard.

Feldman says that the difference between Scalia and Breyer on this issue comes down to Scalia's preference for 'Luddite liberty' versus Breyer's preference for the 'efficient administrative state'. That's a nice way to think of the difference, and also a hint about how life will inevitably be lived (regardless of which side commanded a majority on this particular case).

elkh1 said...

Stinging, sharp, pointed, biting...
are not as stinky as "pungent". Everyone knows a conservative stinks.

Do they take DNA for traffic violations? Do they take DNA of those who were arrested by mistake? Would there be a lot more arrests by mistake to fish for DNAs?

"So what? What could they possibly do with it that could possibly harm you?"

What could the IRS do with your tax returns that could possibly harm you?

What could the Justice Dept do with tapping your phone that could possibly harm you?

What could spending a few nights in lock up with a bed and room services that could possibly harm you?

What could spending a few months to get re-educated to the president's point of view could possibly harm you?

Jay said...

This was a warrantless search of the person, without any of the usual reasons to do one on someone who's been detained

Not only that, but Justice Kennedy lied about the reason they were doing it in the 1st place.

Jay said...

Heck, why have a 4th Amendment at all?

I mean, since someone, somewhere, can get your tax returns or listen to your phone calls, why can't Sheriff deputies just walk into your home to make sure you're not doing anything illegal?

Michelle Dulak Thomson said...

LarsPorsena,

How does facial recognition software fit in? Like fingerprints or DNA?

A bit of both, I think. The purpose of matching an arrestee's features to a database of unidentified facial recognition profiles (enhanced from surveillance video frames of crimes, say) wouldn't be to identify the arrestee, but to connect him with a crime other than the one he was arrested for.

Obviously, if the video frame is from the crime he was arrested for, it's another matter.

But if facial recognition software is good enough to approach the accuracy rate of fingerprinting and DNA testing, cross-checking against images of solved crimes (i.e., crimes with a perp's name attached) for identification purposes might also turn up unsolved crimes by someone with the same features. That's what's happened with fingerprinting.

Zeb Quinn said...

Maybe we don't have a reasonable expectation of privacy vis-a-vis our fingerprints, whereas with our DNA we do. Why? Because in the end our fingerprints do little more than serve to identify us, but DNA is a key to much more information than just that. Having our DNA in government databases goes further than even Orwell imagined.

Jay said...

Using DNA evidence to solve entirely unrelated crimes is no different than searching an individual without a search warrant or probable cause.

Period.

The shrugging of shoulders at this is mind boggling.

SGT Ted said...

They take the DNA of everybody in the Military for ID purposes.

They took our fingerprints when we applied for a security clearance to check against civilian law enforcement records and fingerprint database.

I get the concerns. I think HIPAA laws come into play regarding what each gene signifies medically.

The police will use it as they use it now to match up fingerprints, but it will be DNA instead. Any search done in those law enforcement databases already has to be justified; they already aren't allowed to go fishing for fun "just to see". That Presidents have abused this power goes back to at least Nixon and probably before him.

I have far more concern about the Government having access to my medical records via Obamacare than I do with a DNA database kept by the police, who already have lots of rules in place over those records due to privacy laws.

My concern is with HHS or some other non law enforcement entity having access to it.

SteveR said...

Richard Dolan makes my case better than I can.

I had a personal stake in the Katie Sepich case, a murder solved because DNA collected at the crime scene was later matched to someone lawfully arrested for another crime. Fingerprints, facial recognition would never have solved it.

AllenS said...

When you are arrested they take your fingerprints and take photos of your face, and any identifying tatoos now, so what's the difference if they also took your DNA. Seems to me DNA can put you in jail if you're guilty, or prove you're not the person they are looking for.

LarsPorsena said...

SteveR said...

Richard Dolan makes my case better than I can.

I had a personal stake in the Katie Sepich case, a murder solved because DNA collected at the crime scene was later matched to someone lawfully arrested for another crime. Fingerprints, facial recognition would never have solved it.

6/4/13, 11:23 AM
----------------------------------

There's dozens of cases like the Sepich case since the establishment of CODIS. I'm all for it.

Susan Stewart Rich said...

"I've never been arrested and likely never will be."

You're boring. and probably white.

Jay said...

I've never been arrested and likely never will be

Which really isn't relevant nor an argument.

It is the same as saying: If you've done nothing wrong, what is there to worry about?

bagoh20 said...

I don't see any problem with government video recording my daily activities in my home, my bedroom, my bathroom. I'm not doing anything illegal there, so what's the harm. Besides, they can tape my calls and watch me outside anyway, so even if they want to do regular colonoscopies on me, it's cool, as long I'm asleep and they don't try to interfere with me killing fetuses when I feel the need, because that's my personal private business.

bagoh20 said...

"I've never been arrested and likely never will be"

If you can say this with confidence, then you aren't living, or aren't trying hard enough to do anything worthwhile, so you are probably right, and don't matter much to anybody including the government.

Astro said...

What bothers me about this is that it's probably easier to steal a bit of someone's DNA (hair from a comb, a wad of discarded tissue...) and plant that as 'evidence' than it is to steal someone's fingerprints and leave them as 'evidence'.

SteveR said...

You're boring. and probably white

I'm not stupid to start with, I've no doubt had more fun than you. See how easy saying something stupid is?

It is the same as saying: If you've done nothing wrong, what is there to worry about?

Yeah its the same thing as saying, I trust the government to follow the law and uphold my constitutional rights. Worrying is no way to live. Why leave the house?

Susan Stewart Rich said...

"I've no doubt had more fun than you."

@SteveR

Really?

SteveR said...

If you can say this with confidence, then you aren't living, or aren't trying hard enough to do anything worthwhile, so you are probably right, and don't matter much to anybody including the government.

How is getting arrested or risking getting arrested an indicator of doing something "worthwhile"? Yeah life's not much unless I matter to the government? I know for sure I matter to people who are important to me, that's living as I see it.

Jay said...

SteveR said...

Yeah its the same thing as saying, I trust the government to follow the law and uphold my constitutional rights.


And there you have it.

We only have 2,000+ years of recorded history saying otherwise, but let's make public policy based on what you believe, and err on the side of big government.

wyo sis said...

Susan Stewart Rich said...

"I've never been arrested and likely never will be."

You're boring. and probably white.

And still free of the DNA database for now. Sounds like boring might have a few things to recommend it. But, if being interesting is a high value to you go right on ahead, be aware that being "interesting" in terms that get you arrested might have consequences that aren't very fun.
It's amusing that being boring is considered a bad thing.

Sigivald said...

If the government has my fingerprints, it’s like they have my randomly assigned Social Security number. If it has my DNA, it’s like they have the entire operating system.

I'm willing to believe the dissenters were correct on the merits (I haven't looked at the case or the arguments deeply), and that the Fourth Amendment should prohibit such a "search" (though I'm also troubled by the idea that it's a "search" in any meaningful sense).

But that argument he presents is purest bollocks, at least in practical terms.

First, human genetics is not "the operating system" of our person; it's a large part of it, but environmental factors affect gene expression so much that we can't just point and DNA and say "it's everything" - that should have died as a trope around 1990 or so, and further our personal histories of experience are far more important in terms of Who We Are.

But even if it was, our understanding of it is so primitive that it'd be, roughly, like handing Marie Curie a bit-dump of a modern operating system binary and thinking it gave her anything useful, and that she could thus, say, figure out how a copy of Word would work.

All a DNA sample is really useful for, for the State right now, is to identify if matching DNA exists somewhere else, in criminal evidence.

That's why it's a Fourth Amendment issue.

SteveR said...

err on the side of big government

I'm just going to rely on my own ability to stay out of trouble, more than I trust the government for anything. Anyone who equates that with being boring and uninteresting, doesn't know me and doesn't know as much about having fun as they think they do.

Susan Stewart Rich said...

@wyo sis

I didn't say borning was bad. But let us all remember Rosa Parks before we say we will never be arrested.

Larry J said...

Yeah its the same thing as saying, I trust the government to follow the law and uphold my constitutional rights. Worrying is no way to live. Why leave the house?

Sure, because our history shows that the US government never abuses anyone's rights, right? Well, other than the Indians. And the Japanese Americans in WWII. And the blacks for over 100 years. And now the IRS using political persecution of groups they disagree with. Nope, the government never does anything wrong and never will.

I'm just going to rely on my own ability to stay out of trouble, more than I trust the government for anything.

Oh, you might want to check out <a href="http://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594035229/ref=sr_1_1?ie=UTF8&qid=1370367953&sr=8-1&keywords=three+felonies+a+day>this book</a>.

Jay said...

This is barely 4 years ago:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. The Arizona Supreme Court correctly held that this case involved an unreasonable search. Accordingly, the judgment of the State Supreme Court is affirmed.

It is so ordered.


ARIZONA v. GANT

We've come a long way!

Larry J said...

Fixing the link to Three Felonies A Day.

If a prosecutor ever decides to take an interest in you, it doesn't matter how you live your life.

SteveR said...

Wow you guys are scaring me, I'm going to go watch Glenn Beck. What about those black helicopters?

If they want to get you they can and they will.

Beach Brutus said...

To those who think they will never be arrested -- please note that in many States if you forget to timely pay a traffic ticket your driver's license is administratively suspended. If you continue driving on that suspended license (which you necessarily will be doing since you forgot to pay the fine), you will be committing a misdemeanor. If you are later involved in a minor traffic accident or are pulled over for another civil infraction -- when the officer runs your license and sees it is suspended he will arrest you for driving on a suspended or revoked license. It happens thousands of times a day.

onycophoran said...

Big Data changes what Fingerprinting is.

Fingerprints arose initially as a small thing. We suspect Joe. We have fingerprints at the crime scene. Let’s get a warrant for Joe and fingerprint him while we are at it.

Then it moved to national libraries, but they were rare and expensive. Let’s send these prints to the FBI for a very important case. They will have to spend six weeks researching them, so we don’t do this very often.

Now it is an instant (or close enough) world-wide search. A few years ago, after the Spanish Train bombings, the FBI developed a latent print and identified an Oregon man who had never left home. The FBI eventually apologized to Brandon Mayfield.

Today, it is commonplace for prosecutors to charge a suspect with as many crimes as possible. “Confess to one of them or we will put you away for life!” The suspect waives his rights, may confess to something that he did not do, just to be put out of harm’s way. Anyone who thinks that a DA would not be happy to make up this stuff, does not remember Duke Lacrosse. Just last week, a Judge in Texas was disgraced (but still probably has a judgeship) when it was revealed that he deliberately hid evidence that would have exonerated a criminal who got (Life? 20 year? A long time?).

Anyone who follows paternity law knows that there are women who collect DNA to impregnate themselves and later claim a gravy train. It wouldn’t be too hard to collect “DNA Evidence” in a similar way, and apply to the scene of a crime of the investigator’s choosing. Imagine a scenario in which organized crime uses an escort to “collect DNA” of someone known to be in the database. Later on, beat up some guy, leave him with DNA up his butt, or go Tawanna Brawley on him, and let the impersonal national database identify him. How do you defend yourself from that?

DNA can provide a strong exoneration. “It’s not my spunk” is a strong statement. It should only rarely be the sole evidence. It should certainly not be the basis of a shopping list for prosecutors. It should not be used to identify saliva left on the roaches behind your high school, kept in a baggie, and identified after you go into politics.

I feel the same way about fingerprints, now. I wouldn’t have a couple years ago.

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

As noted above, DNA is far easier to plant than fingerprints.

jr565 said...

Michelle Dulak wrote:
The only point of the search they did do (and they took their sweet time about it, too) was to see if they could link the guy they had in custody for a current crime to any past unsolved ones. In other words, to crimes they weren't investigating with him as suspect, and for which they had no probable cause to investigate him.

But the converse of this is someone could be exhonorated by this same DNA. It's happened plenty of times.

El Pollo Raylan said...

DNA samples are trivial to collect. Sequencing the stuff used to be expensive but has come down in cost.

Is the complete individual sequenced, or just enough to ID?

Who pays for this?

Michelle Dulak Thomson said...

jr565,

But the converse of this is someone could be exhonorated by this same DNA. It's happened plenty of times.

It's not as easy as that. Linking A to a crime scene via DNA doesn't at all prove that B (whose DNA wasn't found) wasn't also at the same crime scene. It "exonorates" B in the sense that, if the information had been available for the defense to introduce at trial, it's likely that a jury would find a reasonable doubt of B's guilt. In no way, though, does it prove B innocent.

hombre said...

Swabbing for DNA is a higher degree of intrusion than taking fingerprints. What's next, drawing blood without permission or a warrant?

(I haven't read the opinion and could be overreacting.)

DEEBEE said...

Or is Feldman doing a little bit of throwback racism -- like the pungent smell of garlic from salami.

jr565 said...

Michelle wrote:
It "exonorates" B in the sense that, if the information had been available for the defense to introduce at trial, it's likely that a jury would find a reasonable doubt of B's guilt. In no way, though, does it prove B innocent.

many times it would though. T would depend on the case itself. Was there any indication that a second person was involved I. The crime? If so, then it probably just means that the guy in jail didn't have any DNA on the scene. But if there's one criminal the odds are that the DNA belongs to that criminal and that the criminal isn't the guy in jail.

If you are truly innocent, it might be good to have such DNA available to promote your case.

jr565 said...

Michelle wrote:
It "exonorates" B in the sense that, if the information had been available for the defense to introduce at trial, it's likely that a jury would find a reasonable doubt of B's guilt. In no way, though, does it prove B innocent.

many times it would though. T would depend on the case itself. Was there any indication that a second person was involved I. The crime? If so, then it probably just means that the guy in jail didn't have any DNA on the scene. But if there's one criminal the odds are that the DNA belongs to that criminal and that the criminal isn't the guy in jail.

If you are truly innocent, it might be good to have such DNA available to promote your case.

thetapworld said...

This post has been extremely insightful and useful to increase my knowledge in the field of knowledge and its many facets. Thank you very much, I will certainly come back to visit often and definitely tell some of my internet-inclined friends to visit this Shower Heads . Keep posting and expressing your knowledge and opinions strong!