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August 09, 2023

A call for judicial oversight of DNA analysis to protect privacy

Barry C. Scheck, co-founder and special counsel of The Innocence Project in New York is proud of the work his organization has done over the last 31 years.

According to Scheck, the project has had 245 victories, one of which occurred on Aug. 7, when Rosa Jimenez of Texas was exonerated in a child’s death after 20 years in prison of a crime that Scheck said “never took place.”

Of the 245 victories, 199 were exonerated by DNA evidence.

Scheck recently spoke at the program, “The Innocence Project at 20: What We Now Know About the Causes of Wrongful Convictions” during the 2023 ABA Annual Meeting in Denver. The nonprofit Innocence Project works to free the innocent and prevent wrongful convictions.

Scheck, who says DNA is “one of the greatest crime-fighting tools in the history of this country,” called on judges to support bringing the practice of forensic investigative genetic genealogy “under judicial supervision.”

Calling the investigative tool “one of the most important matters that will be faced by judges in the United States having to do with DNA testing,” Scheck said judges should look to what the state of Maryland has done in regulating forensic genetic genealogy in House Bill 240.

In May 2021, Maryland was the first state to enact a law that regulates how law enforcement use consumer genetic information to investigate crimes. Scheck said what Maryland is doing balances privacy concerns. How they arrived at the legislation also should be commended, Scheck said. His organization and experts in the field of genetic genealogy, private service providers, academia, criminal justice experts and other stakeholders were part of a working group that helped to draft the legislation.

“The Maryland legislature was thinking of banning forensic investigative genetic genealogy,” Scheck said. “But the Innocence Project put in a request to testify, and we said, ‘No, you shouldn’t do that. It should be regulated.’”

The Innocence Project thinks that forensic investigative genetic genealogy should be overseen by judges to help protect genetic privacy. Scheck said the privacy concerns are reminiscent of the 1967 case of Katz v. United States, which expanded the Fourth Amendment protections against “unreasonable searches and seizures” to cover electronic wiretaps. It made it a requirement to have a warrant for a search and seizure anywhere a person assumes an expectation of privacy, with some exceptions. Scheck suggests there should be guidelines in place for using DNA analysis in criminal investigations, just as there are guidelines for a warrant, which include having probable cause or some vital piece of evidence from the crime scene.

The controversial trend of using investigative genetic genealogy has its challenges and calls into question family DNA sites and whether law officials can solicit users DNA to help solve crimes.

Scheck said he would like to see model statues, like the ones developed in Maryland, around the country. “It was passed by both houses of the legislature. That doesn’t happen, so we know it’s a good idea,” he added.

Scheck said Montana and Utah recently passed laws addressing forensic investigative genetic genealogy but are more limited in their approach.

“We got industry people who are trying to make a lot of money over this new technology, Scheck said. “They came in and said they didn’t want to do it. They even have gone to the United States Congress and tried to pass it without the privacy protections that are necessary to make sure we keep a system of order, of liberty.”

“I’ve been doing this since the DNA revolution in 1989, litigating these cases. The system has worked,” Scheck said. “Let’s not screw it up and bring ourselves down a road of displaying everybody’s DNA and all that that means in terms of privacy violations. Let’s put this under judicial supervision.”

The program, sponsored by the ABA Judicial Division, also featured Jessica Gabel Cino, a partner at Krevolin & Horst LLC in Atlanta, and Lindsey G. Smith, executive director of the North Carolina Innocence Inquiry Commission in Raleigh, North Carolina.

Reasons for wrongful convictions

Panel moderator Christopher McFadden, presiding judge for the Court of Appeals of Georgia, offered some causes of wrongful convictions. They include:

  • Tunnel vision, with police investigators identifying the suspect and only acquiring evidence that support a conviction
  • The suggestibility of witnesses
  • Junk science and junk expertise
  • The unreliability of eyewitness testimony and people’s tendency to overestimate its reliability
  • Lying snitches
  • The ability to easily extract false confessions

Structurally, McFadden said, “there are too many prosecutors who are more interested in claiming a victory or holding on to a victory than doing justice.”

He also cited as factors that contribute to wrongful convictions inadequate resources in public defender systems; judicial timidity; lack of public awareness of factors that contribute to judicial timidity; failure to know the difference between the law and science; and failure of defense counsel.

“The reality is most people are substantially guilty of what they are charged with and it’s all too easy to get too comfortable with that idea” and not worry too much that some cases are exceptions that require a lot more, McFadden said.