¹ 20/20 (ABC television broadcast, Apr. 1, 1988). The DNA identification test is popularly referred to as DNA “fingerprinting” or “printing.” Some authors contend that these terms are misleading because they suggest a procedure so benign and non-intrusive that courts, in effect, have taken judicial notice of its reliability. See Sherman, , DNA Tests Unravel? NAT'L L.J., Dec. 18, 1989 at 24Google Scholar (” ‘DNA fingerprinting’ is a catchy misnomer…. The technology is far more complicated than the pressing of inked flesh on a piece of paper.“) (quoting attorney Peter J. Neufeld); Note, The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant, 42 STAN. L. REV. 465, 465 n.3 (1990).

² In addition to criminal investigations, other applications of DNA profiling include resolutions of disputed parentage in civil and immigration cases, and identification of otherwise unidentified human remains. The FBI forecasts the establishment of civil files containing voluntarily furnished DNA profiles of individual citizens that might be used to identify unidentified victims at the site of mass disasters (for example, plane crashes and war zones). See Hicks, DNA Profiling: A Tool for Law Enforcement, FBI L. ENFORCEMENT BULL., Aug. 1988, at 1,3.

³ For a more detailed treatment of the scientific procedure involved in this technique, see Gill, , Jeffreys, & Werrett, , Forensic Application of DNA ‘Fingerprints,’ 318 NATURE 577 (1985)Google Scholar; Jeffreys, , Wilson, & Thein, , Hypervariable ‘Minisatellite’ Regions in Human DNA, 314 NATURE 67 (1985)Google Scholar; Sherman, supra note 1; Note, DNA Identification Tests and the Courts, 63 WASH. L. REV. 903 (1988).

⁴ Note, supra note 3, at 904. The tremendous variation detected in the DNA among the population means that “[e]very individual, except an identical twin, possesses a unique genetic ‘blueprint’ known as DNA.” Id. Dr. Daniel Garner, Director of Operations at Cellmark Diagnostics (one of the three private labs in the United States that offers forensic DNA tests at the time of this writing), stated that the accuracy of the test is not threatened even by damaged samples. In the event that a DNA sample has deteriorated as a result of environmental conditions, “there is no possibility of a false identification of a suspect. The result of such a test would be no result, essentially a blank.” Joint Public Hearing on Special Joint Project to Investigate the Application of DNA Fingerprinting 222, New York City (Oct. 5, 1988) [hereinafter Hearing] (transcript on file with the AMERICAN JOURNAL OF LAW & MEDICINE or may be obtained through the Legislative Office Building, Albany, New York).

⁵ In 1984, British geneticist Alec Jeffreys created the DNA identification test. See Schmitz, Murder, HIPPOCRATES, Jan.-Feb. 1988, at 49, 50-52.

⁶ Tommie Lee Andrews was the first person in the United States to be convicted with evidence from a DNA test on November 6, 1987, when the DNA in his blood was matched to the DNA in the semen recovered from a rape victim. Andrews v. State, 533 So. 2d 841 (Fla. Dist. Ct. App. 1988). The appellate judge held that the admission of the DNA evidence was not an abuse of the trial court's discretion. Id. at 849-50.

An in-depth analysis of the accuracy and reliability of the scientific procedure is beyond the scope of this Note. For more information regarding the admissibility standards applied to DNA typing, see Note, supra note 3. For the purposes of this discussion, it may be presumed that forensic laboratories eventually will develop the uniform standards and the quality controls necessary to ensure the reliability of the diagnostic technique. Moreover, the accuracy of DNA profiling will continue to be scrutinized by zealous defense attorneys and by the adversarial nature of criminal trials.

⁷ Begley, Leaving Holmes in the Dust, NEWSWEEK, Oct. 26, 1987, at 81.

⁸ See Hicks, supra note 2, at 3.

⁹ Id. at 3.

¹⁰ Address by John K. Van de Kamp, Attorney General of California, California Criminalistics Institute Seminar on D.N.A. Identification (Jan. 7, 1988) [hereinafter Van de Kamp Address] (transcript on file with the AMERICAN JOURNAL OF LAW & MEDICINE), quoted in Note, DNA Printing: The Unexamined “Witness” in Criminal Trials, 77 CALIF. L. REV. 665, 680 (1989).

¹¹ U.S. CONG., OFFICE OF TECH. ASSESSMENT, CRIMINAL JUSTICE, NEW TECHNOLOGIES AND THE CONSTITUTION: SPECIAL REPORT 9 (May 1988) [hereinafter CRIMINAL JUSTICE, NEW TECHNOLOGIES].

¹² Shattuck, , In the Shadow of 1984: National Identification Systems, Computer-Matching, and Privacy in the United States, 35 HASTINGS L.J. 991, 993 (1984)Google Scholar.

¹³ Hicks, supra note 2, at 4.

¹⁴ CRIMINAL JUSTICE, NEW TECHNOLOGIES, supra note 11, at 19.

¹⁵ “[T]hough the underlying technology for D.N.A. analysis is far more complicated than for conventional fingerprints, we believe the technical problems of creating a database will actually prove to be simpler.” Van de Kamp Address, supra note 10, at 11.

¹⁶ Telephone interview with Rick Millar, Supervising Deputy Att'y Gen., California Att'y Gen.'s Office (Jan. 17, 1989). See also Michaud, DNA Detectives, N.Y. Times, Nov. 6, 1988, § 6 (Magazine), at 70, 74 (forecasting the use of a multicharacter, alphanumeric personal DNA identity tag).

¹⁷ When officials agree upon a consistent methodology for the proposed database, the reference of any particular print to the database would result in the identification of hundreds of suspects. Reference to the database would have to be made broadly, searching not only one particular allele class — an alternative form of the same gene — but adjacent classes as well, “in order to avoid the possibility of missing a match because of a measurement error on one or more of the bands.” Hearing, supra note 4, at 260-61 (testimony of Prof. Richard Borowsky, N.Y.U. Biology Dep't).

The narrowing-down process thus necessitates using the human eye and this may provide grounds for challenging the accuracy of the databank search process. Measuring bands of DNA is difficult because they are said to resemble “fuzzy caterpillars.” Sherman, supra note 1, at 24. Several factors make it likely that such challenges could be withstood: (1) the widespread acceptance of the Automated Fingerprint Identification System (AFIS) process with its “human judgment” element; (2) the eventual refinement of the scientific method that time will bring; (3) the likelihood that the search will be used primarily for tracking and apprehension purposes then to be coupled with other corroborating evidence; and (4) the implementation of oversight mechanisms.

There is still concern, however, that because subpopulations often share similar DNA chains in certain portions of the double helix, comparisons to thousands or even millions of other DNA prints will increase the chance for error exponentially. See Drexler, DNA Fingerprinting, Boston Globe, Feb. 25, 1990 (Magazine), at 44.

¹⁸ An FBI spokesman hailed this major advantage of the DNA test over traditional finger prints: genetic analysis not only helps to identify the offender, but also provides “evidence of the assault itself.” Hearing, supra note 4, at 14 (testimony of John Hicks, Deputy Assistant Director, Laboratory Div., FBI).

¹⁹ See J. WAMBAUGH, THE BLOODING (1989) (a nonfiction book about the “Narborough Murder Enquiry“) for a thorough account of this investigation; see also Lohr, For Crime Detection, ‘Genetic Fingerprinting', N.Y. Times, Nov. 30, 1987, § A, at 9, col. 1; Schmitz, supra note 5.

²⁰ See Gill, Jeffreys & Werrett, supra note 3.

²¹ Although the police again were without a suspect, the news from Jeffreys was a major breakthrough in the investigation. As FBI official John Hicks pointed out, “one of the difficult things for law enforcement is to determine [with certainty] that they [sic] have the same individual involved [in order] to focus their investigation and bring him to justice.” Hearing, supra note 4, at 16.

²² As radical as this tactic sounds, police in the United States have launched similar campaigns. In 1987, the police chief of a small Pennsylvania mill town attempted to solve a series of rapes by asking volunteers to be fingerprinted. The rapist in these cases had thrown a sheet over the head of each victim and thus remained unseen. Some hair samples and witnesses’ sketchy impressions indicated that the rapist was black.

This American police hunt may have been even more questionable than the Narborough Enquiry, because in this case the police asked all adult black men, with the exception of the obese, to agree to be fingerprinted. Only six men refused, while some 125 volunteered. Despite this apparent show of support, the police chief's unorthodox methods provoked a great deal of criticism. As one commentator stated, “no matter how ‘voluntary’ the program, the notion of methodically asking people who were not individually suspect to submit to an intrusive procedure simply because they were black raises some worrisome racial and civil liberties issues.” Trippet, Trying to Trace a Rapist, TIME, Sept. 14, 1987, at 28. The authorities took their “open season” on blacks even further when they asked many of the fingerprint volunteers to submit blood samples to be checked against bits of the rapist's blood in police possession. Forty-five men agreed to this procedure as well. As it happened, neither the blood samples nor the fingerprints were needed; the rapist was arrested when he tried to pawn a gun stolen from a house where one of the rapes had taken place. Id.

²³ Marshal, , Genetic Fingerprints Snare a Suspect, Los Angeles Times, Sept. 22, 1987, § 1, at 6, col. 1.Google Scholar

²⁴ J. WAMBAUGH, supra note 19, at 282.

²⁵ One consequence of the advent of genetic evidence in Britain was a demand for harsher penalties. As the mother of one of the Narborough victims said, “[The murderer] should hang. With this new DNA genetic fingerprint there is no chance of a person being later proved innocent after he's been hanged. There is no excuse anymore.” Id. at 280. One month after the murderer was sentenced, a newspaper poll revealed that of one reader in ten responding, 9% wanted to “bring back the hangman.” Id. at 281.

In the United States, the more immediate result of DNA typing may be an increased number of plea bargains. As one public defender warned, “you have to realize how this is going to eliminate trials … you're going to create a zoo because … [the DNA evidence is] … so conclusive.” Hearing, supra note 4, at 101-02 (testimony of Douglas Rutnick, Pub. Defender, Albany County).

²⁶ Schmitz, supra note 5.

²⁷ Herman, British Police Embrace DNA Fingerprints, Wash. Post, Nov. 24, 1987, § HE at 9, col. 1.

²⁸ CAL. PENAL CODE § 290.2 (West 1988).

²⁹ COLO. REV. STAT. § 17-2-201 (1988).

³⁰ VA. CODE ANN. § 53.1-23.1 (1989).

³¹ KING COUNTY, WASH. ORDINANCE 88-105 (Mar. 10, 1988) (codified at WASH. REV. CODE § 43.43.754 (1989)).

³² In King County, Washington, the term “sex offenses” includes rape, assault with intent to rape and incest. County to Use Genes to ID Sex Offenders, GOVERNING, July, 1988, at 10. California and Colorado both require blood and saliva samples, while Virginia and Washington take only blood.

³³ Lane, DNA ‘Prints’ Put Finger on Criminals, Seattle Times, Dec. 30, 1987, § A, at 1.

³⁴ DNA TECHNICAL COMM., KING COUNTY, WASH., REPORT 1 (Dec. 1, 1988) (introduction) (on file with the AMERICAN JOURNAL OF LAW & MEDICINE).

³⁵ Lane, supra note 33.

³⁶ Michaud, supra note 16, at 88.

³⁷ Robert Horn, Director of the New York State Police Crime Laboratory, testified that the feasibility of a DNA database is contingent upon the establishment of “nationally-accepted protocol and methodology.” Hearing, supra note 4, at 72. To date, the forensic use of DNA typing has been managed primarily by proprietary laboratories utilizing a variety of procedures. The consequent lack of governmental oversight has aroused some concern over “who is watching the watchers.” Id. at 94 (testimony of Sol Greenberg, Dist. Att'y, Albany County). Moreover,

Id. at 262-63 (testimony of Prof. Richard Borowsky, N.Y.U. Biology Dep't). According to one commentator, “you have to have a policy. You can't have a policy by [sic] case-by-case basis in court. You've got to have a commission and you've got to have a moratorium.” Id. at 172 (testimony of Prof. Barry Scheck, Benjamin Cardozo Law School).

³⁸ Telephone interview with Rick Millar, supra note 16.

³⁹ Thompson, DNA's Troubled Debut, CALIF. LAW., June, 1988, at 36, 42.

⁴⁰ CAL. PENAL CODE § 290.2 (West 1988).

⁴¹ KING COUNTY, WASH. ORDINANCE 88-105 §.6 (Mar. 10, 1988) (codified at WASH. REV. CODE § 43.43.754 (1989)) (emphasis added).

⁴² See Hicks, supra note 2.

⁴³ One author warns that there may never be a procedure which will yield completely innocuous information about an individual:

Note, supra note 1, at 531 (footnote omitted).

⁴⁴ Author's radio interview with novelist Joseph Wambaugh, The Larry King Show (Westwood One broadcast, Feb. 6, 1989).

⁴⁵ See DNA TECHNICAL COMM., supra note 34, at 4.

⁴⁶ U.S. CONG., OFFICE OF TECH. ASSESSMENT, SPECIAL REPORT: BIOLOGY, MEDICINE, AND THE BILL OF RIGHTS 26-29 (Sept. 1988) [hereinafter SPECIAL REPORT]. See also Gilbert, , Sequencing the Human Genome, 3 ISSUES SCI. & TECH. 25 (1987)Google Scholar. Recently, a private laboratory in New Jersey began a new service in which it stores an infant's DNA pattern until the child turns 18, at which time he or she can decide to have the sample destroyed or pay to keep it in the repository. See Smith, , A DNA Registry That Can Help Bring Lost Kids Home, Bus. WEEK, Feb. 26, 1990Google Scholar, at 81.

⁴⁷ SPECIAL REPORT, supra note 46, at 4.

⁴⁸ CRIMINAL JUSTICE, NEW TECHNOLOGIES, supra note 11, at 2.

⁴⁹ Van de Kamp Address, supra note 10, at 4.

⁵⁰ Id.

⁵¹ J. WAMBAUGH, supra note 19, at 284.

⁵² CAL. PENAL CODE § 290.2(d) (West 1988).

⁵³ COLO. REV. STAT. § 17-2-201(5)(g)(1) (1988).

⁵⁴ VA. CODE ANN. § 53.1-23.1 (1989).

⁵⁵ KING COUNTY, WASH., ORDINANCE 88-105 § 7 (Mar. 10, 1988) (codified at WASH. REV. CODE § 43.43.754 (1989)).

⁵⁶ MILLER, A., THE ASSAULT ON PRIVACY 142 (1971)Google Scholar.

⁵⁷ CRIMINAL JUSTICE, NEW TECHNOLOGIES, supra note 11, at 15. See also U.S. CONG., OFFICE OF TECH. ASSESSMENT, FEDERAL GOVERNMENT INFORMATION TECHNOLOGY: ELECTRONIC RECORD SYSTEMS AND INDIVIDUAL PRIVACY (June 1986).

⁵⁸ According to the Office of Technology Assessment (OTA) in June 1987, a memorandum addressing “Proposed Expansion of NCIC” [National Crime Information System] was sent to interested parties requesting comments on these proposals in June of 1987 by Congressman Don Edwards, Chairman of the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, U.S. House of Representatives. In response, OTA's Communication and Information Technologies Program submitted a Staff Paper entitled “Issues Relevant to NCIC 2000 Proposals,” Nov. 12, 1987. CRIMINAL JUSTICE, supra note 11, at 15.

Although these proposals were rejected in 1987, the FBI has subsequently addressed the potential benefits of incorporating some DNA profile identification information into the NCIC Missing Persons File in connection with unidentified deceased. See Hearing, supra note 4, at 17 (testimony of FBI Director John Hicks).

⁵⁹ See SUBCOMM. ON TRANSP., AVIATION & MATERIALS OF THE HOUSE COMM. ON SCI. & TECH., 98TH CONG., 2D SESS., COMPUTER AND COMMUNICATIONS SECURITY AND PRIVACY 17-19, 24-17 (Comm. print 1984).

⁶⁰ Shattuck, supra note 12, at 993.

⁶¹ Id. at 1001.

⁶² Stanley v. Georgia, 394 U.S. 557 (1969); NAACP v. Alabama, 357 U.S. 449 (1958).

⁶³ Mapp v. Ohio, 367 U.S. 643 (1961).

⁶⁴ Griswold v. Connecticut, 381 U.S. 479 (1965).

⁶⁵ Meyer v. Nebraska, 262 U.S. 390 (1923).

⁶⁶ Katz v. United States, 389 U.S. 347 (1967); Boyd v. United States, 116 U.S. 616 (1886). For a thorough analysis of the question of whether a constitutional right to privacy exists in personal information held by others, see J. BERMAN & J. GOLDMAN, A FEDERAL RIGHT OF INFORMATION PRIVACY: THE NEED FOR REFORM (Benton Foundation Project on Communications & Information Policy Options pt. 4, 1989).

⁶⁷ See, e.g., A. MILLER, supra note 56, at 25.

⁶⁸ Boyd, 116 U.S. at 630 (emphasis added).

⁶⁹ Katz, 389 U.S. at 347 (1967).

⁷⁰ Id. at 353.

⁷¹ J. BERMAR & J. GOLDMAN, supra note 66, at 5.

⁷² Id.

⁷³ United States v. Miller, 425 U.S. 435 (1976). A congressional reaction to Miller came in the form of the Right to Financial Privacy Act of 1978, 12 U.S.C. § 3401 (1988), and includes a minimum due process standard and a court order provision that requires law enforcement to meet a standard of relevance before records can be released. See also Whalen v. Roe, 429 U.S. 589 (1977) (state may maintain files containing the names and addresses of all people who lawfully obtain prescription drugs).

⁷⁴ Miller, 425 U.S. at 445-46.

⁷⁵ Miller, 425 U.S. at 442.

⁷⁶ J. BERMAR & J. GOLDMAN, supra note 66, at 7.

⁷⁷ Miller, 425 U.S. at 451 (Brennan, J., dissenting) (quoting Burrows v. Superior Court, 13 Cal. 3d 238, 247, 529 P.2d 590, 596, 118 Cal. Rptr. 166, 172 (1974)).

⁷⁸ J. BERMAR & J. GOLDMAN, supra note 66, at 8.

⁷⁹ Nor would an attack of DNA “databanking” succeed on fifth amendment grounds. The privilege against self-incrimination has been limited to testimonial or communicative evidence, not physical or real evidence. Gilbert v. California, 388 U.S. 263 (1967) (the compelled production of a handwriting example was held to be an identifying physical characteristic outside of fifth amendment protection); Schmerber v. California, 384 U.S. 757 (1966) (at the direction of a police officer, a physician extracted the blood of an arrestee suspected of drunk driving). Lower courts have recently applied a Schmerber-XiVe rule to cases involving the compelled production of other kinds of physical evidence. See People v. Thomas, 180 Cal. App. 3d 47, 52, 225 Cal. Rptr. 277, 279 (1986) (saliva, hair and blood); State v. Burch, 490 So. 2d 552, 554 (La. App. 1986) (fingerprinting in open court).

The OTA confirms that the “seizurefs] of… blood, semen, fingerprints, hair, handwriting samples, and other such evidence … have been held not to violate the Fourth Amendment or other constitutional prohibitions against forced self-incrimination, if their disclosure is otherwise reasonable.” U.S. CONG., OFFICE OF TECH. ASSESSMENT, SCIENCE, TECHNOLOGY AND THE CONSTITUTION 13 (1987). It has been suggested, however, that “given the unique autobiographical nature of the evidence that DNA fingerprinting reveals, the [Supreme] Court should reconsider its strained categories of testimonial and nontestimonial evidence … [because] … DNA typing evidence fits into both categories.” Note, supra note 1, at 533.

It should also be noted that thirteen state constitutions do contain explicit guarantees of a right to privacy. CRIMINAL JUSTICE, NEW TECHNOLOGIES, supra note 11, at 8.

⁸⁰ 5 U.S.C. § 552a (1974).

⁸¹ Id. at § 552a(b). Interestingly, the inefficiency of the monolithic bureaucracy is now valued: “One of the most practical of our present safeguards of privacy is the fragmented nature of present information. It is scattered in little bits and pieces across the geography and years of our life. Retrieval is impractical and often impossible. A central data bank removes completely this safeguard.” J. BERMAR & J. GOLDMAN, supra note 66, at 10-11 (quoting The Computer and Invasion of Privacy: Hearings Before the Special Subcomm. on Invasion of Privacy of the House Comm. on Gov't Operations, 89th Cong., 2d Sess. 6 (1966) (statement of Rep. Frank Horton)).

⁸² The Privacy Act was intended to “promote accountability, responsibility, legislative oversight and open government with respect to the use of computer technology in the personal information systems and databanks of the federal government.” S. REP. NO. 1183, 93d Cong., 2d Sess. 1 (1974), quoted in J. BERMAR & J. GOLDMAN, supra note 66, at 13.

⁸³ 5 U.S.C. § 552a(b)(3) (1988).

⁸⁴ Professor Miller observed that although many aspects of individual privacy are recognized by the law and can be protected either on a constitutional basis or by means of a private common-law action, “the available protection is not adequate to meet the threat to informational privacy that already exists and is certain to become more acute in the future.” A. MILLER, supra note 56, at 205.

Through a variety of legislative enactments, however, Congress has made great strides in the regulation of government and private access to privately held personal information. See Right to Financial Privacy Act of 1978, 12 U.S.C. § 3401 (1988) (creates a statutory fourth amendment protection for bank records); Fair Credit Reporting Act of 1970, 15 U.S.C. § 1681 (1988) (prohibits credit and investigation reporting agencies that collect, store and sell information on consumers’ credit-worthiness from disclosing records to anyone other than authorized customers; agencies must now allow consumers to review their own records and correct inaccuracies); Family Educational Rights and Privacy Rights Act of 1974, 20 U.S.C. § 1232g (1988) (limits disclosure of educational records to third parties; students are able to see their records and correct inaccuracies); Privacy Protection Act of 1980, 42 U.S.C. § 2000aa (1982) (prohibits the government from searching press offices without a warrant if no one in the office is suspected of a crime); Debt Collection Act, 31 U.S.C. § 3711 (1982) (requires federal agencies to provide individuals with due process protections before an individual's federal debt information may be referred to a private credit bureau); Cable Communications Policy Act, 47 U.S.C. § 551 (1984) (safeguards the confidentiality of interactive cable television subscriber records by prohibiting the disclosure of cable subscriptions which may reveal individual preferences and political beliefs; the information may be released with a court order that shows by clear and convincing evidence that the subject of the information is reasonably suspected of a crime and that the information sought would be material evidence in the case); Video Privacy Protection Act, 18 U.S.C. § 2701 (1988) (applies standards similar to those of the Cable Communications Policy Act).

⁸⁵ See J. BERMAR & J. GOLDMAN, supra note 66, at 1.

⁸⁶ For more on “property” theories of privacy, see A. MILLER, supra note 56, at 211-16.

⁸⁷ Oversight of the Privacy Act of 1974: Hearings Before a Subcomm. of the House Comm. on Gov't Operations, 98th Cong., 1st Sess. 5 (1983) (opening statement), quoted in J. BERMAR & J. GOLDMAN, supra note 66, at 18.

⁸⁸ Simitis, , Reviewing Privacy in an Information Society, 135 U. PA. L. REV. 707, 741 (1987)Google Scholar.

⁸⁹ LIFECODES CORP., BACKGROUND INFORMATION ON DNA-PRINT IDENTIFICATION TEST (1986).

⁹⁰ CRIMINAL JUSTICE, NEW TECHNOLOGIES, supra note 11, at 4.

⁹¹ A. MILLER, supra note 56, at 209.

⁹² Shattuck, supra note 12 (quoting S. REP. NO. 1183, 93d Cong., 2d Sess. 7 (1974)).