Widespread use of familial DNA testing to capture suspects, may result in communities of color being unfairly targeted, believe some experts.

According to Peter Bibring, staff attorney with the American Civil Liberties Union of Southern California, since familial DNA was successfully used in the capture of Lonnie David Franklin Jr., the alleged Grim Sleeper who killed 11 victims between 1985 and 2007, prosecutors argue that it should be more widely used.

The technique not only raises issues of constitutionality and rights to privacy, but fairness.

With traditional DNA forensic analysis, police take a DNA sample that has been recovered from a scene. It is then analyzed before trying to find an exact match in a database of DNA taken from convicted felons. In this process there is enough variation to produce an exact match and provides a high likelihood that the crime-scene sample came from the same person as the match in the database, which would count as evidence of guilt.

“Familial DNA searching, on the other hand, goes a step further and works off the principle that if the DNA is a partial but not exact match, then the sample may be taken from somebody who is related to the database match. So all the police have to do is look at all the person’s relatives and see if one of them might be the perpetrator,” Bibring said. The issue, however, is that because they are not completely accurate “familial searches widen the net of innocent individuals who could fall under suspicion and be investigated by police.”

It was additionally noted that because the criminal justice system disproportionately arrests and convicts people of color, and are therefore over-represented in the DNA databases, those populations would be adversely affected because the familial searches would extend beyond the offender and include the offender’s family, thus resulting in a genetic map of communities of color and a law enforcement tactic that would unfairly subject blacks to prosecution over their white counterparts.

According to Daniel Grimm’s Columbia Law Review entry, titled “The Demographics of Genetic Surveillance: Familial DNA Testing and the Hispanic Community,” familial DNA testing will disproportionately affect the Hispanic community more so than any other race or ethnicity due in part to their population growth. That coupled with relatively high arrests and conviction rates, said Grimm, will subject disproportionate numbers of the Hispanic community to genetic surveillance and privacy invasions.

“The databank system is not racially neutral,” he wrote. “Over time this scenario risks constructing stigmatic myths about ethnicity and criminal conduct that can be devastating to those affected.”

Moreover, he contends this advanced testing method is not as accurate as believed and that there is potential for false positive laboratory errors.

Erin Murphy, professor at the University of California, Berkeley School of Law, added that other missteps can take place such as contamination of samples, intentionally malfeasant analysts and statistical misrepresentations.

The process, she said, relies not only on the information provided by DNA typing being correct but on a DNA analyst’s reasoning abilities, processes of elimination, subjective judgment calls and inferences.

Beyond this, familial DNA testing can result in family members of convicted felons — who have themselves committed a crime — being arrested over those who have committed a crime but do not have a family member in the database.

Jennifer Mnookin, UCLA professor of law, said this leads to more structured surveillance and strategic arrests. The only fair alternative, she said, is to have a universal database, whereby all members of society have their DNA logged.
Another approach, she added, would be to stick as close to California’s current policy as possible; and that is to restrict familial searching to extremely serious cases where all other leads have been exhausted.

In the Grim Sleeper case, California Attorney General Jerry Brown limited familial searching to the most serious, violent crimes, but only after all other investigative leads had been exhausted. And investigators did not knock on doors, rather they fine-tuned their list of suspects based on additional DNA tests and found circumstantial evidence that revealed the suspect lived in the area where the murders took place. Additionally, they found it plausible that the suspect could have committed the crimes over the two decades because of his age, which is 57. And prior to going public, detectives obtained an exact DNA match, which they acquired from a discarded piece of pizza and later from blood and buccal swabs.

Widespread use causes concerns that there will be a lack of oversight and law enforcement will not take the same precautions as those taken in the Grim Sleeper case.

According to reports, Denver District Attorney Mitchell Morrissey has already used familial DNA testing in less serious crimes, such as burglaries and car thefts. And in Orange County, there is currently a DNA database building on persons who have committed misdemeanors. If used widely, said Mnookin, there is a potential for even non-violent criminals to be swept up in the wave of arrests brought on by the technique.

Mnookin suggests that familial DNA testing only be used in serious crimes, but it must be accompanied by transparency and shaped by formal policy and voter input to ensure there is no mishandling.

“But the more we find it effective,” Mnookin said, “the more pressure there will be to use it more broadly.”

As for constitutionality, Grimm believes familial DNA testing will likely survive a constitutional challenge under the Equal Protection Clause but is likely to be short-circuited under the Fourth Amendment’s probable cause limitation on search and seizure.

On the other hand, Mnookin doubts that the process is unconstitutional.

Furthermore, she said, it is unlikely that familial DNA search results will be used in court as evidence. After DNA has been taken from a crime scene and is then compared to the DNA database, if a partial match is found, law enforcement has to dwindle down their suspects and can do so by having knowledge of the suspected person’s whereabouts, age, body type and other things that may link him or her to the crime. They then must get a sample from that person either under surveillance — as was the case of the “Grim Sleeper “ — or through a search warrant. The DNA sample has to then be tested against the crime scene sample. “If it does match, then by the time you get to court you have a match, you no longer are just relying on a familial DNA search.”

As for privacy, Mnookin said, we have made a social decision as a society that felons do not have a right to privacy when it concerns taking DNA samples. The bigger issue, she said, is whether using discarded DNA — as in the Grim Sleeper case — is constitutional and a breach of privacy.