The Genealogy Detectives: A Constitutional Analysis of 'Familial Searching'

55 Pages Posted: 20 Apr 2012 Last revised: 14 Jun 2013

David H. Kaye

Pennsylvania State University, Penn State Law

Date Written: April 20, 2012

Abstract

“Familial searching” in law enforcement DNA databases has been pilloried as a step “towards eugenics and corruption of blood” and “lifelong genetic surveillance” that is “inconsistent with a basic pillar of American political thought.” Courts have yet to address the issue fully, but several commentators contend that the practice is unwise, unjust, or unconstitutional. This Article examines the more significant constitutional claims. It concludes that although kinship matching should not be implemented simply because it is technologically seductive, neither should it be removed from the realm of permissible law enforcement information gathering on constitutional grounds. In reaching this conclusion, the Article describes the logic of kinship analysis; clarifies the nature of partial-match searching; shows how an advanced system of DNA databases could yield additional, accurate leads in the investigation of both routine and high profile crimes; and why this system, if properly implemented, is compatible with constitutionally protected interests of both convicted offenders and their close relatives.

Keywords: DNA evidence, kinship, partial match, DNA databases, familial searching, equal protection, fourth amendment, genetic exceptionalism

Suggested Citation

Kaye, David H., The Genealogy Detectives: A Constitutional Analysis of 'Familial Searching' (April 20, 2012). American Criminal Law Review, Vol. 51, No. 1, 2013, pp. 109-163; The Pennsylvania State University Legal Studies Research Paper No. 6-2012. Available at SSRN: https://ssrn.com/abstract=2043091

David H. Kaye (Contact Author)

Pennsylvania State University, Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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