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As scientists unlock the intricacies of the genetic code, lawyers must revise the intricacies of the legal code. DNA technology can work miracles — exonerating the innocent, identifying the guilty, reassuring the public, and vindicating the victim. The technology can also imperil legitimate privacy interests by exposing intimate details of a person’s existence to Big Brother and Big Business. Current legal doctrines were not crafted with the promise and threat of this technology in mind. Optimal revisions will require lawyers of all sorts to step back from their narrow job descriptions and see the broader social interest. A recent ruling from Virginia provides a convenient starting point for analysis. In 1990 the state convicted James Harvey of rape and sentenced him to 25 years. Aided by the New York-based Innocence Project, Harvey now seeks access to the rape kit — containing biological evidence from the victim and the crime scene — in order to test whatever semen DNA may be found. The state prosecutor has resisted, and in mid-April a federal district judge ruled in Harvey’s favor, reasoning that withholding the kit and its potentially exculpatory evidence violates Harvey’s due process rights. Judges in other jurisdictions have declined to order post-conviction testing on similar facts, and the issue is likely to come before the U.S. Supreme Court in the not-too-distant future. But why are so many of these cases in court at all? Why aren’t more prosecutors voluntarily allowing convicts access? Because of the expense of the DNA test? If so, the state can’t complain if the defense team is itself willing to shoulder this cost. Because of the interest in repose and finality? This ignores the compelling counter-interest in substantive justice. If the DNA casts strong doubt on — or indeed conclusively disproves — the convict’s guilt, the state’s true interests are ill served by suppressing this information. A just state, after all, cares not about upholding convictions, per se, but about finding the bad guys. If the wrong man is in prison, perhaps the true culprit is on the loose. Sometimes the interest in finality is linked to “closure” for the victim’s family and friends. But surely this interest would not allow the state to ban post-verdict private detectives, censor skeptical journalists, or muzzle new eyewitnesses; nor should it allow the state to suppress the DNA evidence. A government with confidence in the general fairness of its criminal justice system should welcome the double-check of independent DNA tests, which can lay to rest all lingering doubts. Indeed, refusal to allow new testing can undermine the confidence of the public and the victim: What is the state trying to hide? And in those cases where the DNA disproves the trial verdict, these tests serve an invaluable auditing function, helping the state determine if there is any systematic pattern to its past mistakes. For example, new DNA tests in Oklahoma have recently led investigators to confront the possibility of serious malfeasance in one particular police lab. A cynic might say that prosecutors are simply fighting to maintain their winning percentage, resisting anything that might prove their office fallible (or worse). Res judicata means never having to say you’re sorry. But there are a couple of legitimate prosecutorial concerns that are indeed weighty. First, if the government must hand over whatever biological evidence it retains, courts may eventually require the police to retain the evidence indefinitely at state expense. Second, in many cases the DNA may not be enough to conclusively clear the defendant. For example, in a rape case such as Harvey’s, even if testers discover semen that fails to match his, Harvey still could have been involved, since the crime involved two rapists, and the semen could have come from the accomplice. (The victim was unable to provide a conclusive identification and expressed some doubt about whether both rapists ejaculated.) In a case of this sort, the defendant will seek a new trial, arguing that a new jury should hear the new (doubt-raising, though inconclusive) evidence. The prosecutor will often counter, with some justness, that Humpty Dumpty cannot be reassembled. Years might have elapsed since the first trial, perhaps much of the original evidence has faded away, and the witnesses may now be dead or unavailable. A trial truly fair to the state as well as the defendant may no longer be possible. This is a genuine concern when a defendant seeks the extraordinary remedy of a new trial. But it is hardly an argument for rejecting a new DNA test. So long as it is reasonably possible that the test might completely clear the convict, the test should be done. In Harvey’s case, for example, the DNA test might not only fail to match Harvey but might also directly match other culprits in ways that would completely clear the convict. To insist that a convict must prove that the test will conclusively prove his innocence before he can do the test is to make Catch-22 a rule of law. What’s more, even an inconclusive DNA test can be a valuable aid to a governor or pardon board, who can review old trial transcripts and police files in light of the new evidence in ways that a second trial jury cannot. But the fundamental problem remains: Often the DNA test will be inconclusive, failing to match the convict while also failing to rule out the possibility that the DNA came from the convict’s unknown accomplice. Thus, a purely negative DNA match is often not good enough; we need a positive DNA match as well, telling us not just that the DNA did not come from James Harvey, but also that it did in fact come from John Doe. Once we make the positive match, we can usually decide whether the prosecution’s accomplice theory holds up. Is there any evidence linking Harvey to Doe? Does Doe himself have a record of committing similar crimes on his own or with some other accomplice? With a positive as well as a negative match, everyone wins (except the guilty): Innocent defendants can be freed, past victims vindicated, and future victims protected. Indeed, if we could regularly make a positive match, most stranger rapes could be solved and thus, one hopes, many rapists deterred — a truly amazing prospect. Regularly making positive matches would require creating a far more comprehensive DNA database than currently exists. New technology makes this possible. Every child at birth now has a blood test for medical purposes. A few drops could be diverted to generate a DNA fingerprint. (These DNA fingerprints could also help prevent a now-prevalent form of identity fraud whereby a criminal uses another person’s birth certificate, which lacks unique identification markers such as fingerprints or footprints.) In addition, all adults could be required to submit to a quick cheek swab, perhaps when they get their driver’s licenses. This swab is all that would be needed to generate the genetic fingerprint. Such a database would be in the interest of innocent criminal defendants; yet almost no criminal defense attorney has called for its creation. Instinctively, the defense bar recoils from broad searches and seizures, and is more comfortable fighting blood tests than demanding them. A defense attorney’s job is simply to get his client off the proverbial hook — reasonable doubt at a reasonable price. Actually finding the real culprit is not in the defense attorney’s standard job description. (Let the police and the prosecutors worry about that!) But this view is just as misguided as that of the prosecutor who cares only about maintaining conviction rates. Without a comprehensive database, many innocent defendants will never be able to decisively prove their innocence; with such a database in place, prosecutors will be far less hostile to new testing. (Many of the convictions a prosecutor’s office might lose would be offset by new convictions enabled by positive matches.) Of course there is real danger in allowing the government unlimited access to each person’s entire DNA code, which contains oodles of private bits of information that could be used in sinister ways. For example, the complete code may reveal a person’s genetic predispositions to various diseases — information that could compromise employability and insurability, and that the person herself might prefer not to know. But there is a clean way of protecting private information of this sort, by using only part of the DNA code (so-called junk DNA) that identifies a person but tells us nothing truly private — the DNA equivalent of a fingerprint. The same comprehensive DNA statute that required mandatory blood tests and cheek swabs could also provide that only the DNA fingerprint be done, with the rest of the biological sample destroyed. The law could further provide for elaborate safeguards against the misuse of samples, including an explicit statutory requirement or implicit understanding that the whole program be headed by a distinguished civil libertarian. If analyzed by the global test of Fourth Amendment reasonableness, this hardly seems an “unreasonable” search and seizure regime. Our hypothetical scheme is nondiscriminatory, relatively nonintrusive, well justified, sensitive to legitimate privacy interests, and no broader than necessary. But it is not entirely clear that current Supreme Court doctrine would allow such a comprehensive DNA statute, because it contemplates intrusions for criminal law enforcement purposes in the absence of probable cause, and, indeed, in the absence of individualized suspicion. This is a category of search that the current Court generally disfavors. And so the new technology may require the justices, too, to rethink some of their dicta and dogma. Even if law enforcement purposes alone might not justify a comprehensive database, isn’t the case more compelling if such databases can also ride to the rescue of the erroneously accused and the wrongly convicted? Whether or not comprehensive DNA databases are put in place, the law needs to provide more protection for the biological samples already in the government’s possession. Current doctrine, for example, does not limit the government to fingerprinting the “junk” DNA and has failed to make clear what rules govern the testing of previously acquired biological samples. More protection against government abuse and more security from private thuggery; more innocent prisoners freed and more violent criminals caught; more reliable evidence at our disposal and more safeguards for our medical privacy. This is the world the scientists have made possible. But will the lawyers make it happen? Akhil Reed Amar is Southmayd professor of law at Yale Law School and author of “The Bill of Rights: Creation and Reconstruction” (Yale University Press, 1998).

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