Legal and Ethical Issues in Forensic DNA Phenotyping

Abstract

In the recent Supreme Court case of Maryland v. King, which addresses the constitutionality of compulsory collection of DNA samples from felony arrestees, the state and federal government repeatedly underscored that forensic tests of biological samples look only at meaningless, non-sensitive information. These non-coding, non-expressive parts of the genome have even earned a nickname, “junk,” that alone does much to assure the public that the police are not scrutinizing confidential information. The distinction is important in the legal community as well: Judges have consistently privileged the benefits to crime-solving against the minimal privacy intrusion posed by revelation of this otherwise meaningless string of numbers.

But of course, efforts at unlocking the deeper secrets of the human genome continue apace. In 2012, researchers debuted the first commercially available tool that can simultaneously analyze genetic information from an array of sites on the genome and produce information related to biogeographic ancestry, eye and hair color, relatedness, and sex. Developments that predict age, facial morphology, height and other physical traits may loom on the horizon, and primitive research has even drawn connections between the MAOA gene and propensity to violence.

This paper examines the legal and ethical implications of forensic DNA genotyping, or "FDP." It canvasses existing rules and regulations that might hasten or thwart such testing, and considers its potential utility for criminal cases. It further considers the moral and ethical questions implicated by testing for more than just "junk" DNA.

Keywords: DNA, phenotyping, forensic, genetic

JEL Classification: K14