A lag on DNA fingerprints
DNA EVIDENCE has long proved its usefulness in incriminating - and absolving - suspects in criminal cases. But individuals will be unlikely to offer samples of their genetic codes if law enforcement officials do not destroy the evidence as promptly as possible or return it to innocent persons.
That is what is going on in the aftermath of the case of Christa Worthington, a young mother who was stabbed to death at her home on Cape Cod in 2002. In 2006, her garbage collector, Christopher McCowen, was found guilty of her rape and murder. In the investigation, police collected cheek swabs from a group of friends and acquaintances of the victim - and then from a larger number of Cape men.
Michael O'Keefe, district attorney for the Cape and Islands, says the swab evidence from the larger sweep was never analyzed and has been destroyed. But police did make profiles of the DNA from the smaller group and are holding onto them. Late last month, they returned the swab provided by Keith Amato of Provincetown but held onto the DNA profile based on it. The profiles present a trickier issue because they are records that might play a role if McCowen's conviction is overturned on appeal.
Amato is part of a civil lawsuit by Proskauer Rose LLP, working for the American Civil Liberties Union. Lawyers for the state should make very clear that swabs and profiles will be destroyed once it is established they are not needed in the criminal case.
DNA swabs are different from fingerprints, which can only be used for identification. DNA provides information about family relationships, physical attributes, tendency toward certain diseases, and ancestry. The use of DNA in criminal cases will always have to balance the individual's right to privacy, and to protection from illegal search and seizure, with the state's interest in identifying perpetrators. To maintain this equilibrium, police will have to be straightforward about their use of evidence, and they will have to secure truly informed consent from those donating swabs.
It is cause for concern that some states are moving toward collecting DNA samples of persons who have been arrested but not yet convicted of any crime. Even more worrisome is the prospect that evidence from volunteers offering swabs in police dragnets will go into police databanks, which has not yet been the case here. According to the ACLU, there have been several other instances around the country in which individuals voluntarily offered DNA and then did not get it back after the crime was resolved. DNA samples are a powerful investigative tool that police should use carefully or risk losing. 