The Second Generation of Racial Profiling
University of San Diego: School of Law
September 18, 2010
38 AM. J. CRIM. L. 49 (2010)
An emerging forensic tool called DNA phenotyping makes it difficult to defend, as a matter of law or policy, the accepted reliance on racial proxies to construct search profiles for criminal suspects. DNA phenotyping uses ancestry data and facial recognition software to infer skin tone, nose shape, hair and eye color from cell tissue at the crime scene. Yet three states forbid this technique for fear of reviving pseudoscientific racism. This Article argues for DNA phenotyping. By providing a falsifiable check on dubious eyewitness accounts of race, this controversial new technique promises to improve arrest accuracy, enhance police legitimacy, and loosen the grip that race has on the way we think about crime. I develop a totality-of-the-evidence approach to corroborate eyewitness racial identification with phenotyping markers in proportion to the reliability of each.
Keywords: Equal protection, criminal investigations, suspect identification, forensic DNA phenotyping
JEL Classification: K14, J78
Date posted: September 19, 2010 ; Last revised: July 26, 2013