18 MR. SMITH: Most of what we are going to say today
19 has been previewed to you in writing as well as orally, but
20 we welcome the opportunity to try to lay it all out,
21 including some of the variations in viewpoint that remain
22 with in the working group.
23 Let me say a couple of words about our role as we
24 saw it. I think we saw our role less than perhaps some
25 other working groups as making recommendations to this body
1 or recommendations for this body to recommend to another.
2 Rather, we took on issues by referral from the Commission or
3 from other working groups. Some of the issues we took up
4 were self-initiated.
5 Our method basically was to nominate issues,
6 dispose of some without much discussion, but then to discuss
7 others with some intensity.
8 Then, of course, to make demands on David Kaye to
9 go study and write about them for us and ultimately to
10 present to you.
11 Finally, Ed Imwinkelried took mercy on David and
12 joined him in the effort of writing this, from which we
13 benefitted enormously.
14 As a result of that, the documents that we are
15 submitting are the two legal memoranda from David and from
16 David and Ed. We are submitting them not as working group
17 products, because they are clearly authored by these
18 gentlemen, but we are recommending them to you as
19 comprehensive and thorough analyses of the legal issues we
20 took up, and we think they are relevant to this Commission
21 and others to discuss. So it's a kind of map from us to you
22 and perhaps from you to others.
23 Not every assertion in the documents therefore
24 represents the working group's view of the subject matter,
25 and I think we are going to discuss a little bit some of the
1 differences, and you'll have different views too.
2 The purpose of raising debate here about the
3 issues and I think ultimately suggesting to this Commission
4 that it facilitate, catalyze a process perhaps through a
5 national symposium later this year or next for wider
6 discussion of some of these issues is really the ultimate
7 product of our work.
8 Although you will remember that the initial
9 discussions of our work focused on the question of the
10 admissibility of arrestee sampling and arrestee databasing,
11 and we discussed that at some length in this body because of
12 the submissions to the Commission by others because of the
13 Attorney General's specific request to us, you will now find
14 that separately discussed in a version of the memorandum
15 you've earlier seen but also embedded now within the larger
16 context of the memorandum that Ed and David have authored on
17 the selected legal issues.
18 The cover document summarizes to some extent the
19 materials in the legal memoranda but also raises issues on
20 which we spent quite a bit of time in the working group that
21 didn't seem to us to be legal issues in the sort of
22 technical sense. They involve legal matters, but they are
23 issues of politics and philosophy which deserve discussion,
24 in our view, here and in a larger discussion nationally.
25 Why? Well, because the intersection of law and
1 privacy issues and public safety issues strikes us as not a
2 matter for a working group on legal issues to try and
3 resolve. Nor do we really recommend to the Commission that
4 it attempt to resolve them in the sense of making formal
5 recommendations to other bodies of government.
6 Let me now turn it over to David and, under his
7 orchestration, to the others for an oral presentation of the
8 material submitted to you today.
9 MR. KAYE: As Michael indicated, the major report that we
14 have developed has been the result of efforts on my part
15 and on the part of Ed Imwinkelried. In addition, it reflects
19 contributions from the other members of the working group.
21 The ideas were generated as a result of our discussion and drafts were the subject of further discussion. Drafts of the reports, or parts of them, were circulated.
1 to other scholars in the area.
3 In some instances the conclusions are controversial, and
5 we have placed words like "probably" in front of them where
6 things are debatable.
7 We have focused on issues as to which it might be helpful
for the Commission to have a sense of the legal framework, the policy
choices that are available, and the kinds of laws can be passed consistently
with the Constitution. Our emphasis has been on the U.S. Constitution and
its limitations in relation to DNA evidence.
8 The report begins with an analysis of very concrete issues that arise
every day– Fourth Amendment issues, securing DNA for analysis, and
using DNA in prosecutions. Then it considers law enforcement databases.
9 Our discussions of many of these issues led us seriously to contemplate a more radical alternative, I am going to defer some of that to our chair, who has very ably articulated many of the reasons one might want to think about a much broader approach than that
4 which is currently being pursued.
6 We are going to begin by summarizing some of the
7 salient points. At the outset, Ed Imwinkelried will run through some
8 features on the first topic that I mentioned, DNA analysis
9 in criminal investigations. As you can see, there are several topics that
11 arise. One which came up in discussion yesterday has to do
12 with inferring physical or even racial groupings from crime
13 scene samples. One might ask, is that permissible
14 consistently with the equal protection clause of the
15 Fourteenth Amendment? Again, the focus is on the outer
18 boundaries of what can be done as opposed to what should
19 necessarily be done.
20 Issues also arise about securing samples from suspects or
21 other individuals and securing samples or records from
22 custodians, such as hospitals, laboratories or others who
23 might have DNA samples. Years ago, Dr. Reilly called the attention of the biomedical
25 community to
what he presciently described years ago as inchoate DNA database.
3 First, Ed's remarks.
4 MR. IMWINKELRIED: David and I are going to be
5 working from this report. I will try to make references to
6 the pages so we will be on the same page.
7 As David indicated, I'm going to be focusing on
8 the investigative stage. As his overhead suggests, there
9 are three aspects that we are going to be talking about:
10 What happens during the investigative phase? You
11 acquire crime scene samples; you obtain suspect samples.
12 Then you draw inferences both from an analysis of the
13 individual samples and from an analysis of the individual
14 samples and from their comparison. What we are going to try
15 to do is identify the legal issues that emerge from those
16 three steps.
17 With respect to each issue, I'm going to try to do
18 three things: identify the issue itself, furnish whatever
19 answer we can identify, and try to in an intellectually
20 honest fashion specify our level of confidence, our degree
21 of certitude in that conclusion.
22 Let's start by talking about the acquisition of
23 the crime scene sample, and specifically the question of the
24 investigative use of inferences as to racial or ethnic group
25 yielded by the analysis.
1 Question: If that inference is yielded by the
2 analysis, does the Constitution restrict the use of that
3 inference as an investigative lead?
4 On the one hand, it's clear that in constitutional
5 jurisprudence race is a suspect classification. On the
6 other hand, we believe that this is not a case like Yick Wo,
7 the case that is mentioned on page 21 of the report, in
8 which racial information is being used to disadvantage a
9 minority group. We think that the Yick Wo line of authority
10 is distinguishable for two reasons.
11 First, if the police pursue this policy with
12 respect to all racial or ethnic groups, they are being
13 treated in the same fashion; no group is being specially
14 burdened or disadvantaged.
15 Secondly, the use of the information is different.
16 It's not a discriminatory use. Quite to the contrary, it's
17 a legitimate investigative use.
18 The analogy that we suggest in text is this. What
19 if we had a government physician on the staff of a VA
20 hospital. The physician has an Afro-American patient, and
21 blood analysis indicates that there is a genetic
22 predisposition towards a particular illness, an illness that
23 could be treated preventively. We think it would be
24 malpractice to disregard that diagnostic lead from the DNA
25 information, and we think that similarly it is legitimate to
1 use this information as an investigative lead.
2 So we are relatively confident that if we are
3 talking about the uniform use of these investigative leads,
4 the Constitution does not forbid that practice.
5 If we turn from the crime scene sample to the
6 suspect sample, the initial question becomes, how do we
7 acquire the sample from the defendant?
8 We would like to suggest to you that the answer
9 turns on whether you acquire the sample directly from the
10 suspect or whether you indirectly obtain the sample by going
11 to a private entity or private person who is already in
12 possession of such a sample.
13 Let's talk initially about directly acquiring
14 samples from suspects. That can be done either via consent
15 or through compulsion. Let's focus initially on the
16 question of obtaining legally effective consent to
17 furnishing of a DNA sample.
18 Issue: What is the legal standard to determine
19 the efficacy of that consent?
20 On the one hand, it does seem to be a relatively
21 lax standard. We cited for you on page 16 of the report
22 United States Supreme Court decision in Schneckloth v.
23 Bustamonte. In that case the Supreme Court squarely holds
24 that when the issue is Fourth Amendment consent as opposed
25 to Fifth Amendment consent under Miranda, the standard is
1 not intentional relinquishment of a known right, but rather
2 a general voluntariness standard to be determined on the
3 basis of the totality of the circumstances.
4 On the one hand, that is a lax standard, but on
5 page 17 we have tried to suggest that even that seemingly
6 lax standard has some teeth, teeth illustrated by Bumper v.
7 North Carolina on page 17.
8 In Bumper you have a situation where police go to
9 a resident and tell the resident that they have a warrant to
10 search. In fact, they don't. The resident is misled into
11 thinking that they have the warrant; therefore allows them
12 to enter the residence.
13 The Supreme Court says this is not genuine, bona
14 fide consent; this is involuntary; this is coerced. In
15 situations in which the person is led to believe that there
16 is a right to search, misled into believing that they don't
17 have the right to refuse, even under the Schneckloth
18 standard you have an involuntary search and ineffective
19 consent.
20 Turning from consent to the issue of compulsion,
21 it's clear the police can't compel the provision of a DNA
22 sample without some Fourth Amendment justification. The rub
23 is this. What is the standard? And specifically, can you
24 compel provision of these samples on something less than a
25 full-fledged showing of probable cause?
1 Once again we are trying to be intellectually
2 honest and trying to be very explicit. The Supreme Court
3 has never authoritatively resolved that question, but
4 nevertheless we think there is a relatively solid consensus,
5 a consensus indicating that the answer to the question is
6 yes.
7 On page 4 we have cited to you the famous dictum
8 in Davis v. Mississippi, the case written by Justice
9 Brennan. It's a case involving fingerprints. In dictum in
10 the case Justice Brennan says this: Fingerprint evidence is
11 so reliable and the procedures are so minimally intrusive
12 that perhaps you could compel the provision of fingerprints
13 on something less than probable cause if you used carefully
14 circumscribed procedures.
15 Although the Supreme Court has never squarely
16 adopted that dictum, later, as we indicate on page 5, in
17 Hayes v. Florida the Supreme Court does approvingly cite to
18 the dictum in the Davis case.
19 Throughout the country legislatures and courts
20 have seized upon that dictum. You have statutes and court
21 rules in jurisdictions such as Alaska and Oklahoma, even
22 judicial decisions, and the common denominator is some
23 variation of the theme of founded or reasonable suspicion.
24 So on the one hand, we have to say there is no
25 definitive answer, but we think it is highly probable,
1 reasonably clear that if you interpose a magistrate or judge
2 and you have some particularized showing of the nature of
3 reasonable or founded suspicion, and you use carefully
4 circumscribed procedures, that sort of compulsory
5 identification procedure can probably pass constitutional
6 muster.
7 I have been talking about situations in which you
8 obtain the sample directly from the suspect. What about the
9 situation in which you indirectly obtain the sample? For
10 example, going to a hospital or an academic institution
11 which has already collected the sample.
12 At the outset, I think it's important to
13 distinguish between two situations. We are not talking
14 about the case in which the police go to the private
15 institution and instigate the collection of the sample.
16 They know, for example, that the suspect is at the hospital.
17 They go to the hospital personnel and request that they
18 obtain a sample for the police. That converts the private
19 institution into the de facto agent of the government. You
20 have state action, and the Fourth Amendment would apply.
21 What we are talking about is the other situation.
22 They have already collected the sample for their own
23 reasons, and how the question is, can they surrender it to
24 the police?
25 When I say surrender, I mean two things. Either
1 cooperatively, voluntarily turn the sample over, or do so on
2 the basis of a response to a subpoena. Not a warrant based
3 on probable cause or founded suspicion, but rather a
4 subpoena on the basis of a showing that the object of the
5 subpoena is logically relevant to the subject matter of an
6 ongoing legitimate criminal investigation.
7 That is the issue that turns on the question of
8 the applicability of the Miller case which is discussed on
9 page 8. When we were talking about compulsory
10 identification procedures, I said there was some
11 uncertainty. In those contexts it is much more precise to
12 say there is a flat out split of authority; there is a
13 division of judicial sentiment. The division of judicial
14 sentiment revolves around the extension of Miller to the
15 sorts of cases we are talking about now.
16 Miller is a situation in which the suspect is
17 charged with conducting an illegal still business. The
18 police obtain subpoenas to the banks, and they request that
19 the banks surrender two things. Number one, their own
20 internally generated records of his banking activities, and
21 moreover, the checks and deposit slips which he gave to the
22 banking institution.
23 Miller argues on appeal that even though he gave
24 that information to the banks, they could not surrender it
25 to the police without obtaining his consent. Essentially,
1 he says he retained a discrete, reasonable expectation of
2 privacy in those records, in the checks, in the deposit
3 slips.
4 In an opinion written by Justice Powell the Court
5 rejects all arguments. The Court says he voluntarily
6 conveyed the information to the banking institutions. He
7 thereby assumed the risk that they would convey the
8 information to the police, and he says that this rationale
9 applies both to the internally generated documents and to
10 the checks and deposit slips which the defendant conveyed to
11 the bank.
12 The question becomes, can you extend Miller to
13 either records of DNA samples or DNA samples themselves?
14 As we have indicated on page 10, there is a split
15 of authority over that issue, and a minority of courts
16 refuse to extend Miller. A minority of courts say Miller is
17 intended for the situation when you are dealing with
18 something like commercial or financial records.
19 The argument runs, and it certainly is a decent,
20 strong argument, that medical records are different; there
21 is a much more intense privacy interest in that context.
22 In fact, on the bottom of page 10, running to page
23 11, we cited a recent CNN poll in which 87 percent of the
24 public indicated a very strong concern about the privacy of
25 their medical records. Notwithstanding the strong privacy
1 interest in this type of data, the majority of courts have
2 said that Miller governs in the fact situations involved in
3 DNA. Our conclusion is that the majority view at least is
4 defensible.
5 What can be said in favor of the majority view?
6 The majority of courts concede that there is a more intense
7 privacy interest here, but they point to two things.
8 First, although four-fifths of the states have
9 adopted a general medical privilege, the majority of them do
10 not apply the privilege in criminal cases.
11 Secondly, many jurisdictions have gone beyond
12 negative limitations on the general medical privilege; they
13 have gone to the extent of affirmatively prescribing
14 reporting requirements, reporting requirements for both
15 violent injuries and child abuse. The majority of
16 jurisdictions have said these are indications that society
17 does not recognize a legally protected, constitutionally
18 protected expectation of privacy, at least on the criminal
19 side.
20 Our conclusion is that the majority view, as we
21 read the cases, is that the defendant does not retain a
22 constitutionally protected expectation of privacy either in
23 the records or in the samples, and for that reason, under
24 the majority view, those institutions can surrender the
25 records and the samples to the police without running afoul
1 of the Fourth Amendment.
2 As I said at the outset, we want to be as
3 intellectually honest and as candid as we can about our
4 degree of confidence in these various conclusions. So in
5 summing up I would like to group them into three categories.
6 The first category is a category in which we are
7 relatively confident in our conclusions. We think we can be
8 relatively confident that the Constitution does not
9 generally forbid the use of racial information as an
10 investigative lead. We can be relatively confident that
11 Schneckloth is the governing precedent when the issue is the
12 legal effectiveness of the defendant's consent. We also
13 think we are relatively confident that compulsion to submit
14 a DNA sample is an intrusion for Fourth Amendment purposes.
15 The second category is a category in which we
16 think our conclusions are highly probable. We think it is
17 highly probable that when push comes to shove the court will
18 say you can sustain compulsion when we are talking about
19 fingerprints or DNA on a standard less than probable cause,
20 some carefully circumscribed procedure based on a variation
21 of the theme of either founded or reasonable suspicion.
22 Finally, although we have less confidence, less
23 degree of certitude with respect to this, we think that
24 Miller under the majority view does govern in the clear
25 majority of jurisdictions, and if Miller does govern, then
1 that private institution which has already legitimately
2 obtained a sample of the DNA can surrender that DNA
3 cooperatively or in response to a subpoena without violating
4 any retained expectation of privacy that the defendant has
5 in those samples or in those records.
6 Based on that quick summary of the highlights of
7 the investigative part of the report, I would be more than
8 happy to respond to any questions anyone has.
9 CHIEF JUSTICE ABRAHAMSON: Barry.
10 MR. SCHECK: I must say that in terms of your
11 analytical framework, what really disturbs me is starting on
12 page 3. You footnote Harold Krent's fine article Of Diaries
13 and Data Banks: Use Restrictions Under the Fourth
14 Amendment.
15 I must say that I do agree with him that when you
16 are analyzing these kinds of cases, on the one hand, when
17 you are trying to judge the necessary predicate, phantom
18 suspicion, probable cause, whatever it is, you also have to
19 look at the level of intrusion. When you are looking at
20 access to the genome, much depends upon the restrictions
21 that are placed upon its use. Unrestricted access to it is
22 going to require a heavier predicate and be seen as a
23 greater intrusion. I don't think you give that argument
24 fair enough consideration by just saying, "but see."
25 I think -- tell me if I'm right -- that when you
1 are analyzing all of these issues, when you are talking
2 about acquiring samples, that it has been your underlying
3 assumption that the only use that is going to be made of the
4 DNA sample that you are either subpoenaing from a hospital
5 or taking directly from a suspect or taking indirectly is
6 that it is going to be reduced to its digitalized form and
7 used only for forensic identification purposes like
8 fingerprints. Is that the underlying assumption of this
9 analysis? I'm only asking if that is what the underlying
10 assumption was when you were writing this.
11 MR. HARMON: Clearly in a criminal prosecution, if
12 you obtain something, you can use it for whatever use you
13 need to use it to sustain a conviction or further
14 investigation. If one of these samples were obtained in the
15 manner prescribed by Ed, then the law enforcement could do
16 whatever was necessary to further an investigation, and if
17 that meant other than digitalizing, you know that is what we
18 could do on a sample that we obtained pursuant to a search
19 warrant or consent. I don't think there is anything that
20 limits that.
21 MR. SCHECK: That's precisely my point. Thank you
22 for clarifying it. What I am really trying to ascertain is,
23 is it the implicit assumption here that you are only using
24 this for the limited purposes I describe, or as Rock is
25 saying, once you get the sample, you can do anything you
1 want with it?
2 MR. IMWINKELRIED: It seems to me that the answer
3 to your question depends upon the constitutional right that
4 you are talking about. I think Rock is probably right. Our
5 assumption in the Fourth Amendment analysis is
6 probably the controlling rule, at least at this point. We
7 have indicated that there is a contrary argument to be made,
8 but it hasn't been adopted yet.
9 On the other hand, I think that the argument you
10 are making now does sound under Whelan v. Rose, which David
11 will talk about later -- in that challenge to that statutory
12 scheme the court did talk about the safeguards under the
13 statutory scheme to preclude unauthorized use of that
14 sensitive information.
15 So if you are talking about the right of privacy
16 safeguarded by due process, you do have some authority that
17 that is an appropriate consideration, but apart from this
18 argument, an argument that is obviously legitimate, I don't
19 see any Fourth Amendment authority to impose that
20 restriction.
21 MR. SCHECK: The authority is right in the quote
22 you put on page 4. In other words, when Justice Brennan in
23 Davis is talking about why some level of compulsion is going
24 to be justified in taking fingerprints, it is precisely
25 because it doesn't probe into the individual's private life,
1 thoughts, et cetera, et cetera, et cetera.
2 MR. IMWINKELRIED: Again, that is dictum that has
3 never been squarely adopted by the court.
4 MR. SCHECK: I understand that.
5 MR. IMWINKELRIED: We are trying to differentiate
6 between square holdings and dictum.
7 MR. SCHECK: There are funny kinds of square
8 holdings. It's not exactly like there is a helluva lot of
9 case law on issuing subpoenas not just for medical records,
10 but for samples from data banks. I think it is frankly
11 self-evident that these other kinds of considerations are
12 clearly raised by the Davis dicta, if you want to call it
13 that, or by Krent's arguments or others.
14 Let's forget about where these cases are
15 ultimately going to go. We'll find out, right? I just
16 think that in presenting this, if your assumption -- and I'm
17 glad that Rock made it clear -- if your assumption is even
18 under the Fourth Amendment that you have a right to take
19 these DNA samples and that the use of them is going to be
20 for more than simply using it like a fingerprint, then I
21 think you have to exfoliate that implication much more
22 clearly and indicate that the greater the potential level of
23 intrusion in terms of typing it, if there are going to be no
24 restrictions on the use you can make of that blood sample,
25 then you are going to have a much heavier predicate required
1 before you can take it by compulsion directly or indirectly.
2 DR. REILLY: Barry, what if you could fit into
3 fingerprinting, use a different assumption from Rock's?
4 MR. SCHECK: I have to say my reaction to the
5 entire report and all the DNA data bank cases, which I think
6 are rightly cited for the wrong reasons, is that I think
7 that we should treat these samples just like a fingerprint,
8 and the rationale should be narrowly limited in that
9 fashion. I thought that from the beginning.
10 MR. KAYE: We plan to address that as we
11 discuss collection for database purposes as opposed to more
12 traditional collection of material based on probable cause,
13 or in some situations something less.
14 I agree with your suggestion that the fingerprint analogy must apply to reduce the level of proof on the government's part if those statutes that allow blood samples to
18 be collected for criminal investigations are to be sustained as constitutional
based on the analogy to taking fingerprints.
20 Our task in writing this report was to try to describe the law as it
22 exists. While I am sympathetic to Professor Krent’s position that in
23 deciding what initial steps can be taken one ought to
24 consider all conceivable uses that would be made, I think
25 the standard approach that now exists under
1 the Fourth Amendment is to say that if there is probable
2 cause to obtain an item, then there may be other uses to
3 which it can be put unless those are independently invasive
4 of privacy in a way that, as Professor Imwinkelried was indicating, causes a due
5 process concern.
6 It's important to distinguish between a
7 description of laws that exist and an aspiration as to what
8 the law might be. I think it's our obligation at least to describe the law. The citation to Professor Krent is intended to indicate that scholars may have other views as
12 to how the courts should approach this. I think they become more
13 important in the database area than here.
15 MR. IMWINKELRIED: One of the things we are trying
16 to do is to force issues for public policy resolution. If I
17 am looking at the state of the case law, I wouldn't advise
18 any defense counsel to be confident that he or she could
19 protect his client's interest by making either that argument
20 based on the Fourth Amendment or under substantive due
21 process.
22 I feel much more comfortable going to a
23 legislative forum and saying, you need to address this
24 because we need privacy protection at this point, and
25 individual citizens can't be confident that protection is
1 going to be forthcoming from the courts.
2 Even though these are tenable, decent arguments, I
3 quite frankly don't have a great deal of confidence that
4 they are going to carry the day and become anything
5 approaching majority views in American jurisprudence. That
6 is what we are trying to say to force issues for public
7 policy resolution.
8 MR. THOMA: One problem with David's statement --
9 I guess I am the minority view of our working group -- your
10 whole point with regard to this is lack of probable cause.
11 So when you bring it back into the context of once you have
12 probable cause, your use is more -- Rock's view --
13 unlimited. I think Barry's point is by going to the
14 article. You are avoiding the probable cause hurdle, so to
15 speak, and still getting the same use of the evidence as if
16 you had all this probable cause before the extraction.
17 I made quite a bit of notes. I apologize. We
18 have discussed this privately, but I didn't get back to you
19 on some of these points. This is extremely important. DNA
20 isn't like fingerprinting.
21 I agree with Rock's position that the position of
22 all the prosecutors would be once you've got it, you do
23 anything you want with it. I think the analysis has to go
24 back to that. If you don't have anything beyond what was
25 spoken in Davis by the United States Supreme Court, that is
1 the last word of the United States Supreme Court on this
2 issue, and you have to take that analysis into the context.
3 MR. KAYE: I suspect we lawyers could continue to
4 debate this. Let me throw in one last observation to make
5 this concrete. Some years ago there was a notorious case in
7 upstate New York. It involved a woman who was in a coma and
8 became pregnant as a result of a member of the staff of a
9 hospital or nursing home -- I don't recall which -- was
10 raping her while she was in a coma. She delivered a child
11 while in a coma. I could imagine an investigator saying, “we ought to be
15 able to collect a blood sample from all male hospital employees and do a paternity test.
18 Is that purely identifying, like a fingerprint? There could
19 be markers in that paternity test that would involve expressed traits that raise more privacy concerns than fingerprints. The question is whether that use of the evidence, with the attendant invasion of privacy is justified by the investigative need -- even though
1 there is not probable cause to think that every male employee in the hospital committed this offense.
3 MR. SCHECK: That's not the only case like that.
4 There have been quite a few. The sensible way to proceed
5 consistent with the principles I am articulating that you
6 would do a paternity test first of all and isolate what the
7 male DNA profile was, again treating it like a fingerprint,
8 and then the law enforcement authorities would try to find
9 out who had access.
10 Then I would say that the proper procedure would
11 be to first see if you could get informed consent from the
12 individuals to get their samples. If you couldn't, then you
13 could go to a grand jury or to a judge based on the proof of
14 access and say, we want to make a comparison for the limited
15 purpose of seeing whether or not you match this fingerprint.
16 Then it would be part of the court order that no other uses
17 would be possible.
18 All I'm saying is I'm intrigued to hear that you
19 wrote this and then said, gee, there is a smattering of
20 cases here that seem to deal with these issues in terms of
21 medical records, and if we apply this to DNA, this is pretty
22 scary and most of the American people wouldn't like it and
23 all the rest of it.
24 I guess what I am bothered by is I think in this
25 draft it would be useful to articulate these other kinds of
1 arguments just a little bit more fully, because I don't
2 think they are fairly or persuasively enough stated here, to
3 be frank. I don't think you do it by just saying "but see."
4 If you want, I would contribute something to that. Then say
5 these are where the issues are going to be.
6 Reading this, it is one thing to say to a defense
7 lawyer -- of course defense lawyers always should think like
8 this -- watch out. The state is going to do something to
9 your client, and don't put money in a bank; don't give your
10 records to an accountant, or whatever.
11 I think it is going to be read, frankly, quite
12 another way, and that is prosecutors and others who never
13 thought for a second, who never even thought, gee, what
14 about a subpoena to all the blood stick cards around. Or
15 what about a subpoena to all these data banks. Hey, this
16 looks pretty good.
17 I think that is how this would be read unless we
18 indicate a bit more persuasively what the arguments are on
19 the other side and what the courts could do. My own view is
20 that we are only beginning to reach this issue, and the
21 courts are definitely going to look at this just as Brennan
22 did. They are going to say this is potentially different.
23 You just can have this for any purpose. We're going to look
24 at the level of predicate.
25 The standard is going to be raised in accordance
1 with what your potential use is, and to the extent that law
2 enforcement institutions assure people with very ironclad
3 guarantees it's only as a fingerprint, then you are going to
4 get greater access, and to the extent that it is more
5 unlimited, I think the courts will go the other way.
6 MR. IMWINKELRIED: We can certainly flesh out in
7 more detail the arguments for the minority view. We have
8 tried to indicate that there is a respectfully contrary line
9 of authority. Again, we don't want to lose sight of the
10 point that our intent is both to pressure the Commission and
11 to pressure a public debate on the question of what should
12 legislatures do to assure protection while the courts
13 struggle with these issues.
14 We think that certainly should not be taken off
15 the table simply because there is this minority line of
16 authority, even if it can be more persuasive and articulate.
17 That is one of the problems with the minority view. We
18 footnote the Dolan case or the Weber case from New York,
19 cases that come to contrary conclusions, while ignoring
20 cases that have come to the minority results that basically
21 disregarded the giant gorilla on the other side.
22 CHIEF JUSTICE ABRAHAMSON: Phil.
23 DR. REILLY: Forgive me if what I am about say is
24 already in a footnote that I've overlooked, but there may be
25 a line of inquiry that will shed some light on this debate,
1 although not from judicial sources.
2 Over the last three years or so a provision of the
3 Public Health Service Act providing for certificates of
4 confidentiality, making genetic databases unreachable even
5 by subpoena, has been used on several occasions, broadening
6 the original intent of that provision of the federal law
7 which was aimed at records of people with a history of
8 alcohol and drug abuse, to protect them. So within at least
9 that administrative application or interpretation of a
10 federal law we might see some more recent inquiry related to
11 genetic databases themselves and might be of some use to us.
12 MR. KAYE: I'm in agreement with almost
13 everything that has been said here. The statute may be worth noting in light of our suggestion that some of these matters have to be dealt with not by constitutional
17 construction, but by statute. Isn’t the statute limited to research
18 databases?
19 DR. REILLY: Yes, it's limited to research
20 databases. I just say defined by a federal grant as being
21 analyzed under research funding.
22 MR. KAYE: Don't the researchers have to seek a
23 certificate from HHS?
24 DR. REILLY: Yes, that's correct. But it goes
25 directly to Ed's point about the crucible of public policy
1 and how here a statute originally intended for a very narrow
2 purpose has been expanded to address very much the genetic
3 data bank issue, and it seems -- I am on very thin ice here.
4 I'm not a Fourth Amendment scholar by any means -- to be the
5 most recent, if you will, articulation in a post-Miller
6 world about how they look at these things, at least in the
7 research databases.
8 It may be hard to actually get text on this other
9 than the form of letters accompanying the certificates that
10 have been issued, but there have been a number of them.
11 MR. SCHECK: Is it part of your analysis, for
12 example, in deciding what one's reasonable expectations of
13 privacy are in certain data -- that doctrine has been
14 criticized for this very reason. The point is, what is
15 reasonable to the average person? What expectations did
16 people have when they gave up their tissues or their
17 biological samples as opposed to putting their money in a
18 bank and engaging in credit transactions? In terms of going
19 on the Internet, your expectation of privacy there is fair
20 warning that anyone can hack you or it is going to be resold
21 to another credit agency.
22 Where they take your blood as a kid and they put
23 it on a card, I think the people's expectations of privacy
24 in that are much greater.
25 You are absolutely right. Miller is, technically
1 speaking, out there as a precedent to be cited to try to get
2 these things, but the argument that this kind of tissue and
3 data and information is raising much more intense privacy
4 interests seems to me self-evident.
5 MR. THOMA: That is why Miller is avoided
6 sometimes, because it is not necessarily relevant if we are
7 talking about more private concerns.
8 MR. IMWINKELRIED: I think you go back to Barry's
9 question. What is the sort of indication of social
10 expectations that is reliable enough, fixed enough,
11 permanent enough to rely on as a factor for decision making.
12 I do have to say if the Texas courts say, look, you've got
13 all of these states saying you've got protection for medical
14 information broadly defined on the civil side, there is
15 pretty solid consensus that there is no medical privilege on
16 the criminal side. Moreover, we have got these affirmative
17 reporting requirements which intrude on medical
18 confidentiality when there is a sufficiently important
19 interest. That is, I think, quite frankly, a firmer
20 indication of social expectations of privacy than even the
21 CNN polls.
22 MR. SCHECK: There is a case that you don't cite
23 here, and that is Redmond. In other words, while the
24 medical privilege is a weak one in the criminal context,
25 isn't it interesting how the Supreme Court went on the
1 therapist/patient privilege?
2 MR. IMWINKELRIED: That's easily distinguishable.
3 Every state has such a privilege.
4 MR. KAYE: Madam Chair, I was going to ask if I
5 could have the chair's permission to move on to the
6 next topic. I fear we could spent all day on this one.
7 CHIEF JUSTICE ABRAHAMSON: What do you gather from
8 the discussion, Professor Kaye, as to what should be done,
9 if anything?
10 MR. KAYE: My current thinking is that Professor Imwinkelried and I
11 shall confer on modifying the first section of the report. The suggestion that the report make the analogy to fingerprinting quite clear is a valid one.
19 MR. IMWINKELRIED: I agree. We can run that by
20 both Barry and Jeff and get input from them as to
21 appropriate language as well.
22 CHIEF JUSTICE ABRAHAMSON: Okay. David, where do
23 we go from here?
24 MR. KAYE: You've heard what was the
25 uncontroversial part of our report.
1 [Laughter.]
2 MR. KAYE: Our group spent some time in discussing
3 some legal issues associated with the prosecutorial phase,
4 the trial phase, and pretrial discovery of DNA
5 evidence. These are, by and large, not issues that are suitable for the Commission to
9 make any kind of formal recommendations about but there was a feeling within the group that it might be helpful in a public document to describe the development of the law
12 on the admissibility of DNA evidence. The report discusses the standards that
15 the law uses for admitting novel and new scientific methods.
16 Another topic that involves proficiency test
19 results. Many arguments have been made about the admissibility of laboratory findings and proficiency testing. In light of the time we have spent so far, I don't
22 propose to go through those here. There is no question
24 that proficiency testing is important, but I would like to
1 move on.
2 I'm also going to skip over questions about
3 whether there should be an exception to the statute of
4 limitations for DNA testing. I will merely suggest that it would
5 be exceedingly difficult to draft a statute that created a
6 specific exception for DNA evidence.
8 In regard to DNA databases, I am going to discuss two kinds of
15 DNA data banking, what I will call limited DNA data
16 banking and more expansive DNA databases.
17 State statutes that provide for convicted offender
19 databases fall into several patterns and display considerable
20 variety. I will run through quickly the kind of questions that face a state or a
22 federal government in setting up a database.
I want to indicate before I begin the kinds
8 of criticisms that have been heard of DNA data banking.
9 Editorial writers have called for legislation to ensure that
10 “scientific advances in law enforcement do not swamp the
11 privacy rights of ordinary citizens.” There has been talk in
12 the Boston Globe, for instance, of “unfettered government
13 sponsored bio-invasion,”and other authors have warned of “a nation of suspects” resulting
14 from the creation of databases. These concerns need to be
16 kept in mind as one fashions a database.
17 One issue that arises is, how do you collect the
18 DNA? I'm not going to belabor that. There are surprising
19 variations in the statutes. California insists, or used to insist on two specimens of
22 blood and a saliva sample. While one might wonder why
23 different states take different approaches, I don't see this
24 as a major issue of national policy.
25 The more important issue is which offenses
should trigger a requirement
2 to give DNA. Currently about 8 percent of felons are
3 subject to collection. These are typically in sex crimes
4 and a few violent offenses. There is a clear trend, however,
6 toward expanding the scope of databases, and I would expect
7 we will see that continue.
8 The theories that might justify collection from
13 offenders are worth noting. One theory is a forfeiture of rights
15 theory. The Ninth Circuit said in one case in 1995 that
16 “convicted felons do not have the same expectations of
17 privacy in genetic information that free persons have.” The Fourth Circuit, in the first federal case on this issue, said something similar.
20 A theory that I find more congenial rests on a “predictivist thesis.” In the Fourth Circuit case, the court observed that “the program attempts to
24 address the problem of felony recidivism in Virginia by
25 identifying and increasing the likelihood of convicting
1 repeated offenders and by deterring those who otherwise
2 might commit a second felony.” It then refers to statistics
3 on recidivism, and additional studies form the Bureau of Justice Statistics are collected in our
4 report.
5 Predictivism gives one a basis for
6 identifying offenses that justify collection to the extent that one can satisfy two conditions. First, one must determine which offenses produce DNA
11 evidence. Those we might call target offenses, or
12 traceable offenses. White collar crime
13 is not typically going to be a type for which DNA evidence would
14 be very useful. Therefore, even if white collar criminals
15 are recidivists, one might not want to include them.
16 On the other hand, the collection crime should not
17 just be the same crime for which there is an elevated probability as compared to the general population. One need not necessarily be a previous murderer to be predicted to commit
22 homicide. Some reports on database hits in Florida and Virginia

1 suggest, for example, that small property
2 offenses may be indicators of later violent crimes.
3 We heard yesterday a mention of the 1992
4 NRC report. Written around the turn of the last decade in the last
6 century, this report remarked that the only useful collection crimes probably would be sex offenses. That turns out in retrospect -- hindsight
9 is 20/20 -- to have been shortsighted.
10 Nevertheless, even if we reject the forfeiture of rights
19 theory and say that we are interested only in deterring
20 crime and capturing people who have committed offenses, then
21 it does not follow that every felony should necessarily be
22 included. The issue requires more
23 empirical data than now exist. The 1999 federal DNA legislation
24 calls for the collection of statistics on the efficacy of the databases for specific crimes.
1 A third issue that has already been discussed before this Commission
2 involves the time at which one might collect this material.
3 Could it be at the time of arrest? If we adopt this
4 predictivist view, then the question would be, again, Are people who are
8 merely arrested so distinguishable from the general population that
9 the state should be able to take their DNA in light of the
10 extent of the invasion of privacy and the value to law
11 enforcement? That is the balancing test that would
13 apply under the legal framework of the cases upholding searches conducted without a and without individualized suspicion under a “special needs” theory.
14 One might argue that the “special needs” line of
15 cases should not be followed. Indeed, there is a narrower argument
16 that can be made for taking DNA on arrest. It is based on the need for getting an
18 unequivocal means of identifying an individual. We have
19 traditionally relied on fingerprints for that purpose.
20 Once the biometric identifier is obtained,
21 someone who escapes, for example, can be re-apprehended,
22 even if he has false identification, the police can verify
23 they have the right person; the police know who they have
24 arrested. That is a narrow argument, but it leads to the following question: if you
1 collect the DNA for pure identification, can it be put
2 in a data bank that is then against the unsolved cases?
4 I think the traditional Fourth Amendment approach
5 would be that if the government legitimately has a set of
6 records, it can then use it in other ways because the
7 invasion of privacy was initially justified. Of course, if there is
8 some further invasion of privacy that results from the
9 subsequent use, that would need to justified, but keeping the legitimately obtained information on file and using to solve cases is not itself an invasion of any new privacy interest. Fingerprint records, for example, could be put in a large database. The FBI some months ago announced that the automated fingerprint identification system, AFIS, has come
15 on line; with a few thousand dollars for a device to record a an “electronic” thumbprint at the station, police can determine whether the fingerprint matches one in the
19 database.
20 Can the fingerprints in a database come from arrested people? I think the answer is
22 probably “yes” under the Fourth Amendment. Similarly, for
23 purely identifying uses of DNA, the result should be the same. Here I want to emphasize that the analogy to fingerprints has to be complete, that
1 one has to talk about the limitation to identifying loci
2 that are useful essentially only for that purpose, that
3 contain no other socially significant or potentially
4 stigmatizing information that could be revealed and cause
5 harm to any individual.
6 If the system is so structured, I conclude that courts would
11 probably uphold this over some dissents.
13 Another important issue is the range of permissible uses that may be made of DNA once it is in a data bank. Let's go back to convicted offender
17 data banks. A conviction rather than an arrest is necessary to place a DNA profile in the database. All such statutes provide that the banked material or
20 the records derived from them may be used in criminal
21 investigations. Since the theory that justified obtaining the profile is that it is valuable
22 for law enforcement, that would seem
23 unobjectionable.
24 The statutes often provide for certain other uses,
25 and these have proved to be a little more controversial,
1 particularly in recent writings from what I will call
2 members of the bioethics community. Indeed this was the
3 subject of one or two briefs in the case challenging the
4 Massachusetts data bank which ultimately was upheld by the
5 Supreme Judicial Court of Massachusetts. There were a
6 number of arguments that by allowing other uses of the data
7 the statute was an unreasonable invasion
8 of privacy and an unreasonable search and seizure.
9 I think that argument is, in principle, well taken.
10 The question is, what are the range of uses that are going
11 to be allowed? Some people argue that statutory provisions
12 that would allow the material to be released under a court
13 order in civil litigation should not be allowed. But if the same
15 material can be obtained by an order to the person to appear
16 and give blood, it's hard to see
17 why it poses any constitutional problem to
18 collect it from a preexisting sample as opposed to
19 compelling the person to appear.
20 More contentious is the possibility of various
21 research uses. Here I shall talk about two kinds of research,
22 what we could call operational research and other research.
23 By operational research, I mean the use of the
24 records for statistical purposes. For example, to ascertain
25 whether alleles at a given locus are in Hardy
1 Weinberg equilibrium, or to ascertain certain
3 allele frequencies, might be useful
4 in computing probabilities that are related to the probative
5 value of a match of someone within the database.
6 Many of the statutes provide that anonymized records, the profiles
10 that are just numerical information, can be used in this kind of
11 research. That seems at least a permissible choice to make,
13 though not the only conceivable choice, where the records
14 are in fact anonymized and solely statistical information is involved.
16 Could the samples themselves be used at least if
17 they were anonymized so that nothing is known about an
19 individual? Could they be used for instance, to develop SNPs, or
21 to validate systems on a convenient set of data.
22 First of all, I think the Constitution would
23 permit this where there is no harm that can be shown to
24 individuals whose DNA was taken in the first place. This
25 would mean certain kinds of security would have to
1 be observed to ensure that individuals are not identified.
2 There is an argument about the lack of informed
3 consent in this area, but we should remember that we are
4 dealing with samples that were obtained without consent in
5 the first place. I think the situation that has engaged the
6 attention of the bioethical community in a very intense controversy about
8 tissue samples that are available in the millions in this
9 country for research does not apply with full force where the samples themselves are obtained involuntarily, but that argument isn't developed in full in this report.
13 I don't think it's a constitutional limitation that no research use could
15 ever be made.
16 More controversial research uses could be
17 imagined. It was argued in the Massachusetts case that the
18 samples might be turned over to locate “crime genes,” whatever
19 those might be. I don't think even behavioral genetic
20 researchers would claim that there is such a thing as a
21 crime gene, although they might claim that there is a
22 genetic predisposition toward risky behavior of all kinds.
23 This area of research raises other questions of public policy that
2 are very important to address, but whether
3 they are constitutional problems is a separate matter.
4 With respect to the constitutionality of these
5 databases, a very important feature that is
6 recognized in most of the statutes is the need for security.
7 If one is going to take the material and try to argue that
8 it is purely for identification and for deterring crime through identifying people, then any other uses that are made should not infringe on the personal interests of the
11 individuals. The question becomes then, how does one
12 obtain sufficient security in this area?
13 The leading case is one that Professor Imwinkelried alluded to
14 a little while ago which involved pharmacy records in New
15 York, records of prescriptions for controlled substances that were to be stored in a central location for the use of
18 criminal investigations. Those are medical records; those
19 are surely private in the sense of people's expectations.
20 Yet the Supreme Court in Whalen v. Roe refused to even treat these
23 records as having a specially protected privacy interest; it
24 proceeded on the premise that it was rational for the state to want them,
25 it could get them.
1 However, the majority of the Court emphasized
5 that there was security-- these materials were kept under
6 lock and key; there were a limited number of people with
7 access to them; the computers that had them were off line,
8 and so on.
9 It also noted that there had been no instances in the years
10 in which the program had been in existence of any leaks.
11 Those are cautionary observations that relate to
12 law enforcement DNA databases as well.
13 Of course the most secure form of avoiding any
14 exposure of personally significant genetic information such
15 as disease predisposition, would be not to retain samples
18 indefinitely, but to store only the records.
20 In the discussions within our
21 group there has been considerable sympathy with the view
22 that sample retention may be, on balance, undesirable. Certainly if one expands databases beyond convicted offenders to arrestees, the arguments for constitutionality become stronger if one does not retain the samples. That eliminates any
25 possibility of untoward invasion of privacy associated with
1 those records, even though there may be criminal penalties,
2 as there are in many states, against such uses.
3 The Working Group talked about all these issues. Should police try to infer the race of an individual from a DNA sample? Should we broaden the collection efforts to arrestees on the theory they are different than the general population? Which crimes can be predicted to lead to other offenses and therefore justify inclusion in the databases? These are all
10 very hard questions.
11 Some genius in our midst that maybe it makes sense to move
13 away from the assumption that we as a society have been
14 operating under for many years, which is that databases
15 should be limited to people who are already enmeshed in the
16 criminal justice system. This focus tends to have a
17 disproportionate impact, for example, on minorities, who
18 are statistically more at risk for
19 being involved in arrests and in convictions.
20 If we moved to a more expansive system, many of
21 those issues would disappear. If everyone's DNA were on
22 file, then there would be no concerns of unfairness as to
23 particular groups. Under what circumstances might it make
24 any sense to put everyone's DNA on file?
25 The matter is
1 so sensitive that the most extreme precautions would have to
2 be taken, probably including destruction of samples.
4 It certainly would not follow from anything we've
5 said that the newborn screening samples would be obtainable today by a
7 subpoena, by the way. Those were not obtained voluntarily.
8 They were obtained by requirements of state law for newborn
9 screening, I presume, in which case Miller would not apply.
11 Again, there is an argument that this would
13 be within the “special needs” balancing
14 test the Supreme Court has used in cases involving
15 collection of information that could be used in law
16 enforcement that is obtained as part of a broad regulatory
17 system. I thinks it’s arguable that the Fourth Amendment wold permit this in light of obvious advantages to law enforcement in having fuller records on people and the limited nature of these records. I'm being a bit of a Devil's advocate here because part of what our group wants
22 to do is to inspire public debate. We are not saying it should be adopted. Still, one might argue that a centralized database under strict control, with samples
1 destroyed, would be better than a proliferation of databases
2 obtainable by subpoena growing up in all sorts of private
3 hands.
4 I will leave you with these thoughts and see what reactions arise.
6 CHIEF JUSTICE ABRAHAMSON: Barry.
7 MR. SCHECK: I think the way that you get to that
8 last argument and this breathtaking prospect of universal
9 collection in order to prevent discriminatory usage by
10 justifying it under the special needs exception to the
11 Fourth Amendment, which is something that actually you
12 didn't discuss as a rationale here, shows why it's very
13 dangerous that the special needs exception has been used to
14 justify the DNA data bank legislation. If you took it
15 seriously, you might be able to make the arguments that Dave
16 is making, which I think are dangerous arguments.
17 The special needs exception was originally -- Ed,
18 correct me if I'm wrong here -- designed for a series of
19 cases where in theory you are not undertaking any kind of
20 particularized search. So you can do general administrative
21 inspections of houses. There is a general rule about
22 collection of samples from transportation employees after
23 accidents.
24 It has always seemed to me incredibly weak
25 rationale for the DNA data banks insofar as it's
1 disingenuous when the point of the data bank is to conduct a
2 particularized search as to whether or not the individual
3 committed a specific crime.
4 If you say, well, we're going to allow that under
5 the special needs exception, which is really nothing more
6 than saying how much does law enforcement want it versus how
7 much we think is reasonable in terms of people's privacy
8 rights, then, yes, you can probably justify, if you like the
9 special needs exception as rationale, taking DNA from
10 everybody. But I think that is divisive.
11 That is why I would say that you shouldn't give
12 short shrift, even though the courts have so far, to some
13 extent to this notion of an identification rationale for the
14 data banks, because it does seem to me that that is the
15 test.
16 I would put it a little differently, David. It's
17 almost like when you go out and you commit a violent felony
18 and you leave your DNA, as Norman demonstrated in his
19 carefully crafted exceptions to the statute of limitations.
20 It's sort of like leaving your picture and your name.
21 We have no objections in terms of the need to
22 accurately identify people within the system to see if they
23 have committed other crimes, to see if they have warrants,
24 to finding your name, your picture, even your social
25 security number that is associated when you are a convicted
1 individual.
2 That narrow kind of identification purpose is a
3 much better rationale than special needs, which I think
4 frankly is flabby logically under Fourth Amendment law to
5 justify these things, because you really are overlooking the
6 purpose of it is to search for that crime that is out there.
7 Finally, when we start talking about getting
8 access for other kinds of research, I take it more seriously
9 frankly. It's not just thrill-seeking behavior, but there
10 is plenty of interest in hardwired desires for narcotics
11 use; pedophilia, which you do mention in the paper, and sex
12 offenses will be an area of research. It's crazy to think
13 it won't. Even if it's multifactorial, people are going to
14 look at it.
15 It does seem to me that informed consent type
16 principles do have application here, because again, what I
17 don't really see as a part of the analysis here is this
18 notion that when you conduct other kinds of examinations of
19 the DNA sample that you have, that is a search or an
20 intrusion which requires a greater predicate under the
21 Fourth Amendment and is an invasion of privacy right.
22 If you are taking it for one limited purpose,
23 there is a constitutional requirement, I would think, to
24 start using it for another. You say, what's the objection
25 to taking DNA samples for purposes of civil litigation from
1 the offender's blood that is going to be preserved in a data
2 bank? What's the harm in doing that? Because you could go
3 about, in theory, and do it directly by going to the
4 individual.
5 I think the answer is, why don't you go directly
6 to the individual and go get blood there? The only time
7 that you would need to go to a data bank is for some reason
8 that individual is dead and you can't directly get it. Then
9 under some kind of analysis of no other means and a
10 balancing of needs there might be a case-by-case
11 determination of this.
12 I am troubled by these other rationales and where
13 they lead.
14 Last point. We skipped it very quickly. It
15 doesn't seem to me we are helping ourselves very much by
16 saying, well, there is no constitutional issue under equal
17 protection when we start looking at DNA left at a crime
18 scene that we can then type to race. As Dr. Crow was
19 telling us yesterday, what is the only race that we have the
20 ability to make any kind of sound inferences from? Blacks.
21 MR. CROW: Actually, I didn't say that. That's
22 the only one that has been studied properly. It was a good
23 guess.
24 MR. SCHECK: And you said also it's a good guess
25 that Hispanics is not going to be too helpful.
1 MR. CROW: Yes.
2 MR. SCHECK: And how sound are those numbers
3 anyhow?
4 You now have decisions of the United States
5 Supreme Court under Wren that you noted in the materials
6 where you can have a racial bias; you can pull somebody over
7 just because the officer wanted to pull over a black person
8 to search that person's car, which we now have the state of
9 New Jersey admitting to as a policy decades long. The
10 Supreme Court says in the Wren case you can't do that with
11 the intended racial bias, but if there was a broken tail
12 light, you have an objective basis to conduct, let's say,
13 whatever search would ordinarily be proper incident to
14 arrest.
15 There is an article I would commend to your
16 attention that you might want to cite by Tony Thompson in
17 the NYU Law Journal about a month ago, saying if you go back
18 and look at Terry v. Ohio, in a way that was a race case.
19 It was just a bunch of black guys hanging out in front of a
20 store in Cincinnati, Ohio, and they picked them up. Then
21 they came up with a more objective standard, but the issue
22 of race has been ducked here.
23 I think it's a serious equal protection problem.
24 We just finished a study in New York City of street stops
25 issued by Attorney General Eliot Spitzer that showed that
1 blacks and Hispanics were disproportionately stopped on
2 false arrests and wrong stops. This is reality.
3 I think, as applied, it is a constitutional
4 problem. It seems to me very troubling to say, well, we can
5 justify all of this by saying we could do it with all other
6 races, when in fact the only thing that we have to work with
7 here is distinguishing blacks. It's troubling.
8 MR. CROW: Or distinguishing blacks from blacks.
9 MR. SMITH: Judge Abrahamson, anticipating that
10 issues of this kind and others that came up during the last
11 couple of hours deserve further discussion, I did promise
12 the other members of the working group they would have an
13 opportunity at this moment to either add or amplify or
14 contradict some of the views already expressed. If it's
15 appropriate at this moment, we should do that. If it's not,
16 we should break.
17 CHIEF JUSTICE ABRAHAMSON: Woody wanted to say
18 something. Then we will break, and then we will come back
19 to the other members, if that's okay.
20 Woody.
21 MR. CLARKE: Thanks. I just wanted to return a
22 little bit to what Barry was talking about in terms of
23 special needs. I guess it's not really the label you put on
24 it as much as it is a question of public policy. I see it
25 in the context of arrestee sampling. The day may arise when
1 we have an inclusive database. I don't think it's going to
2 be in out lifetimes, but it may at some point in the future.
3 I think, as has already been noted, the move
4 towards at least in some jurisdictions taking samples from
5 arrestees is rapidly becoming a reality. It's going to be
6 litigated. It will either be discussed legislatively first
7 and then go from there.
8 This rather remarkable event actually made me
9 think of what goes on in my county. Almost every day, 365
10 days a year people are stopped and searched with no basis
11 whatsoever at a border checkpoint. I believe the basis for
12 that is a federal district court judge once a year signing a
13 general warrant.
14 So it has some applicability in the sense that
15 that measure is taken, and it certainly defies
16 constitutional interpretation other than on the basis of
17 public policy, and the public policy relates directly to the
18 problems associated with unlawful immigration and the
19 transportation of controlled substances.
20 To some extent that will, obviously, be discussed
21 in the context of sampling of arrestees. I think it really
22 boils down to a question of measuring, as courts will,
23 assuming legislatures pass such legislation, the benefit to
24 the public from sampling arrestees versus intrusion on the
25 individual privacy rights of others.
1 The border checkpoint has been discussed for
2 decades. It is certainly one of the clearest examples of
3 what would otherwise, I think, be interpreted as a search
4 based on purely a hunch. And that's all they are. People
5 are pulled over. They are searched, and there is absolutely
6 no need for any particularized suspicion. At least I
7 believe that is the current state of affairs.
8 I think that is going to play a role somewhere in
9 the future.
10 I did want to thank all the members of the working
11 group. It dawned on me 25 years ago I had the pleasure of
12 being a student of Professor Imwinkelried in a contracts
13 class. I want to assure you that is not what sent me into
14 criminal law.
15 [Laughter.]
16 MR. IMWINKELRIED: I want to comment on one thing
17 that Barry said, which I think was well taken. He said that
18 we have come a long way from the initial inroads of the
19 special needs doctrine with Cameron C. Cameron C. are
20 housing code enforcement cases where the Supreme Court says,
21 you know, this is a special public need and it is going to
22 be frustrated, the enforcement of these codes, if we require
23 case-specific, particularized showings of need.
24 So you have got a special need that can only be
25 met if we to some extent relax normal Fourth Amendment
1 standards.
2 One of the things I think David and I are trying
3 to do by citing that theory in this context is to raise the
4 public policy question: Are there special needs that can
5 only be met by moving towards more expansive databases?
6 That's the public policy question that we are trying to
7 press both the Commission and for broader public principles.
8 CHIEF JUSTICE ABRAHAMSON: With that, let's take a
9 break.
10 MR. ASPLEN: Before you go, either pick up here or
11 I will pass out at your seats draft recommendations for the
12 sample retention issue that we will be dealing with today.
13 Please take a few moments to read that during the break so
14 we can talk about it also.
15 Also, for the record, as you have seen, we do have
16 sign language interpreters here pursuant to our requirements
17 under the Federal Advisory Committee Act.
18 [Recess.]
19 CHIEF JUSTICE ABRAHAMSON: Michael Smith, you are
20 in charge for the moment.
21 MR. SMITH: Judge, I've never known you to give up
22 power quite that readily.
23 CHIEF JUSTICE ABRAHAMSON: What I give I can take
24 back.
25 [Laughter.]
1 MR. SMITH: We had a hardworking working group.
2 There were important things to be said by each member. So
3 why don't we just go around.
4 Jeff, do you want to start?
5 MR. THOMA: I will e-mail these suggestions. I'm
6 going to make some specific points where I differ. I would
7 pretty much join in Barry's comment earlier.
8 At page 3, footnote 11, we need to confine that to
9 the federal Constitution per footnote 5 of David's DNA
10 sampling article. It is not mentioned, though it is
11 mentioned in the article that it's confined to the federal
12 Constitution. You have the right to privacy in California,
13 for example, and other constitutions may hold differently.
14 Footnote 13 at page 3. There really isn't any
15 discussion of how DNA sampling constitutes an exigency.
16 At page 17, as Barry and I mentioned previously,
17 and Rock's position as well, a question about his take on
18 it. Probing into a person once you have DNA is a given if
19 you don't have the constraints. We've already discussed
20 that.
21 Page 5, footnote 22. It really isn't an exception
22 to probable cause, because the narrow focal group actually
23 fits within probable cause guidelines more or less. I think
24 it fits better there than as an exception to probable cause
25 in most instances.
1 At pages 8 and 9, I do vehemently disagree about
2 Miller, stretching from bank records to DNA information
3 about somebody. If you look at pages 10 and 11, footnote
4 52, it is not entirely persuasive, though I understand
5 Tennessee's and I understand Texas' position on it. We have
6 got medical records which we stretch from bank records, and
7 then we stretch it to DNA information rather than medical
8 records.
9 The same problem on page 11 with Thurman. It
10 misconstrues the reasonable expectation of privacy per Katz,
11 because you are talking about statistically people having
12 that reasonable expectation of privacy if they do this. For
13 example, in Katz it was what that person's reasonable
14 expectation of privacy is within the phone booth. I think
15 if you have got 87 percent or thereabouts believing they
16 have some reasonable expectation of privacy, it ends up not
17 being a subjective standard.
18 In talking about DNA, this is something Phil and I
19 have talked about briefly, but certainly he knows more about
20 it. Regarding medical information, what you end up doing is
21 literally getting to a point where people are suspect of
22 being involved in the medical sy