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The DNA details

It was news to me that the police force had moved into the technological age and were using things like lie detector tests to help solve crime. The doubtful science of lie detector tests apart, one would also like to see the advent of electronically recorded confessions which are provided for in the Evidence Act and improvements in the methods used for identification of suspects by victims of crime and supporting witnesses.

Around the same time in the United States, their Supreme Court was also concerned with another aspect of crime-fighting technological advancement, that of DNA testing. The United States has its own peculiar brand of law but whatever happens there eventually ends up here. Sadly, the conclusions of the Supreme Court in the case of Maryland v King are such as to give pause to any right thinking legal practitioner.

The facts of the case are that the appellant was arrested and charged with serious assault. In the course of being processed (fingerprinting etc) a cheek swab was taken from him for the purpose of conducting a DNA test. During the testing it was discovered that his DNA matched that of the perpetrator of an earlier unsolved rape.

The appellant was then charged for the earlier rape for which he was eventually convicted. The Supreme Court was required to consider the unconstitutionality of the collection of DNA in such circumstances as it relates to the Fourth Amendment of the United States Constitution.

The US Fourth Amendment is concerned with the prevention of unreasonable search and seizure of private citizens and states that “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized”. It was agreed by all members of the court that the taking of a cheek swab to obtain DNA samples amounts to a search.

The Supreme Court found that in the circumstances, “taking and analysing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment” and may “significantly improve both the criminal justice system and police investigative practices” by bringing a high degree of certainty to suspect identification.

One gathers from reading the judgment that the majority of the court considered that because the taking of the swab was not invasive in the sense that it did not break the skin and posed no threat to health or safety it was negligible and therefore determinative of whether the test was unreasonable so as to amount to a breach of the fourth amendment right.

The court also emphasised the diminished need for an additional warrant since the appellant had already been in custody for another serious offence. The majority determined that there was a balancing exercise to be conducted between the legitimate state interest in identifying suspects, the degree of certainty brought to that exercise by DNA testing and the right of the individual citizen.

The minority issued a dissenting opinion and highlighted a number of fallacies in the majority decision, most of which are not relevant outside of the state of Maryland. They did make the point that the constitutional provisions do not allow for searches designed to serve “the normal need for law enforcement”.

“Suspicion-less” searches are provided for but usually in circumstances where there is some greater public good to be served such as random searches in a school based on the court’s role as parens patriae (having overall responsibility for the safety of the nation’s children).

Section 17 of the Barbados Constitution proves that “[e]xcept with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises”. The usual exceptions for defence, public safety, health, order, morality and the rights and freedoms of others etcetera apply.

It may interest one to know that the Forensic Procedures and DNA Identification Act, 2005, authorises “an officer of the rank of inspector or higher to order [a] non-intimate forensic procedure on a suspect”. The definition of non-intimate in this case includes the same type of swab for DNA material as that which took place in Maryland v King.

The provisions of this act are detailed, somewhat alarming and therefore merit their own consideration which we will continue next week given the constraints of space.

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