Probable Cause from Probable Bonds: A Genetic Tattle Tale Based on Familial DNA

Abstract

DNA represents the “gold standard” of evidence that solves crimes and obtains convictions. Law enforcement agencies increasingly turn to national and local DNA data-banks to generate possible suspects. These searches may “hit” upon data-bank samples that only partially match the DNA left at a crime scene. The value in a partial match is that it might identify a relative of the perpetrator. Some states have embraced this technique - familial DNA testing - as a harmless additive to traditional or routine investigatory methods, but at least one state has explicitly banned its use. This article examines the scientific, legal, and bioethical implications of familial DNA testing. It examines the scientific significance of obtaining a partial match, and questions whether the archetype for determining the existence of a family relationship lacks definition. It considers the legal problems posed by identifying and relying upon innocent people to investigate their family members, including infringements on privacy rights and violations of constitutional requirements. Finally, this article addresses the ethical implications of familial DNA investigations, the tension between resolving crimes and protecting bioinformation, and suggestions to balance the progress of science with the privacy of the person.

Keywords: DNA, DNA databanks, legal ethics, criminal law, familial DNA, privacy, DNA testing

JEL Classification: K14, K40