The Retention and Subsequent Use of Suspect, Elimination, and Victim DNA Samples or Records: A Report to the National Commission on the Future of DNA Evidence

Abstract

When DNA evidence is found at the scene of a crime, it can be compared to DNA obtained from five classes of individuals. First, suspects in ongoing investigations may volunteer to supply DNA samples, or they can be ordered to give samples by a court or grand jury ("suspect samples"). Second, samples may be obtained purely to eliminate an individual as a possible source of DNA left by the perpetrator of a crime (“elimination samples”). Third, “victim samples” come from victims of violent crimes. Fourth, relatives of missing persons sometimes provide DNA samples to assist in the identification of remains. Finally, DNA profiles derived from “convicted offender samples” are routinely checked against crime-scene samples.

On September 24-25, 2000, various members of the National Commission on the Future of DNA Evidence, its working groups, and other individuals met to discuss the retention and subsequent use of DNA samples or records from people who were not suspected of criminal activity or who have been eliminated as possible sources of the crime-scene DNA. This group sought to identify the nature of the privacy interests and the law enforcement concerns.

This report outlines these issues and concerns. Part I describes how some police agencies and forensic laboratories deal with the first three classes of samples or records — suspect, elimination, and victim. Part II describes the legal issues raised by the practice of retaining and reusing these nonoffender samples. Part III identifies arguments of public policy that are crucial in deciding how these DNA profiles or samples ought to be handled. The report seeks to frame the issues that must be addressed in developing an appropriate policy for reusing the identifying features of DNA samples that are legally obtained from suspects, victims, and other individuals.

Keywords: DNA evidence, databases, Fourth Amendment, sample retention, elimination samples, victim samples, nonoffender samples