“Genetic Surveillance” - The Bogeyman Response to Familial DNA Investigations

Jules Epstein, Widener Law School, Delaware

Abstract

Familial DNA “searches” occur when investigators find a partial match between a crime scene evidence profile and a person in a DNA database, but where there is at least one locus where there is an exclusion. What follows is the investigation of near relatives of the excluded suspect. This investigative mechanism has been embraced by police services in Great Britain, and enthusiastically extolled by prosecutors in the United States yet criticized because of fears that it will disproportionately impact racial minorities and subject innocent members of the families of convicted criminals to “lifelong genetic surveillance.”

This article analyzes familial DNA searches under both Fourth Amendment jurisprudence and public policy/privacy criteria. Because of the tool’s adaptability to proving innocence and exonerating the wrongfully convicted, the article proposes a qualified endorsement of this tool, with four restrictions on its implementation that are designed to respond to and address the privacy and racial disparate impact concerns overstated by its critics.