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DNA and the Fifth Amendment

14 Pages Posted: 26 Apr 2011 Last revised: 12 May 2011

Erin Murphy

New York University School of Law

Date Written: April 26, 2011

Abstract

Challenges to the collection and databasing of DNA samples almost always proceed under the Fourth Amendment. The Fifth Amendment is rarely considered a viable legal claim, largely due to the longstanding distinction between testimonial evidence, which receives Fifth Amendment protection, and non-testimonial evidence, which does not. In this short essay, written as a chapter in a book celebrating the life and work of Professor William J. Stuntz, I draw upon United States v. Hubbell as a means of arguing that the Fifth Amendment might in fact cover certain kinds of DNA investigative activity. Specifically, I analogize a requirement to produce documents otherwise unknown to investigators, which the Court found to constitute self-incrimination, to a requirement that defendants provide a DNA sample not to match a specific crime scene, but so that investigators can compile DNA databases to troll for matches. In both cases, the concern is that investigators compel information from a suspect in order to create rather than confirm suspicion, and thus the Fifth Amendment ought to apply.

Keywords: DNA, Fifth Amendment, Testimonial, Communicative, Self-Incrimination, Forensic

JEL Classification: K14

Suggested Citation

Murphy, Erin, DNA and the Fifth Amendment (April 26, 2011). NYU School of Law, Public Law Research Paper No. 11-28. Available at SSRN: https://ssrn.com/abstract=1823722 or http://dx.doi.org/10.2139/ssrn.1823722

Erin Elizabeth Murphy (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012
United States
212-998-6672 (Phone)

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