Due Process

DNA evidence has now become the definitive means of identification. The number of people exonerated after a wrongful conviction has reached more than 250. Was it cause for celebration or lament? Certainly the efforts of groups like Barry Scheck’s Innocence Project should celebrate their achievements in finally obtaining justice for persons who have languished in despair in prison, many on death row, wrongly convicted for crimes they did not commit. Decades and lives have been lost in the interim. Now a group of lawyers from the Connecticut Innocence Project are examining the conviction of Erik Rasmussen in the 1988 slaying of his wife.
These are cases where biological samples were preserved, samples obtained, in most instances, before the advent of DNA testing. The science has matured and with it a powerful tool has emerged. DNA now provides a means for law enforcement to solve otherwise cold cases.

When an individual is arrested he is required to submit to photographing and fingerprinting. Those mug shots and prints become part of a database available to law enforcement, not only in the case under investigation, but also for future investigations. It is what the law refers to as non-testimonial evidence; that is, evidence obtained in a manner that does not violate an accused’s Fifth Amendment right to not incriminate one’s self.
When a case commences the state can seek to compel an accused to provide other types of non-testimonial evidence, such as handwriting exemplars or swabs for DNA testing.

If you are believed to be operating a vehicle while impaired police have the right to request a blood, breath or urine sample to test for the presence of alcohol or drugs. They cannot compel it, but the penalties for refusing to submit can keep an operator off the highway for a substantial time.

DNA samples are collected in a non-invasive manner. A buccal swab can be obtained with less inconvenience than obtaining a throat culture in your doctor’s office. In reality there is no real difference between the collection of DNA and fingerprinting an accused.

In a country that exalts individual liberty we resist any attempt by our government to catalogue us without our consent. Police departments offer fingerprinting services to parents in the event a child is abducted. We all have social security numbers, We need driver’s licenses to operate a vehicle. We save our banking and credit card information on computer databases to accommodate online shopping. A macabre entrepreneur in Iraq is now offering tattooing so that future maimed victims of suicide bombers can be more readily identified.

Would some of those 250 newly exonerated defendants have avoided conviction if the law had mandated collection of DNA? Perhaps, for those of more recent vintage. But civil libertarians point out that in instances where DNA can exonerate, an accused can voluntarily submit to DNA testing, and obtain the same result.

Pet owners can have identification chips implanted in the family dog or cat. Is it just a matter of time before we do the same for newborns? I don’t believe that mandatory DNA collection rises to that level, but George Orwell may have had a point after all.

Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, CT. For more information on Rich or his firm you can access them at www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or email him at rtm@meehanlaw.com.