There’s over 80 years of case law for the proposition that fingerprinting does not violate the Fifth Amendment. The Fifth Amendment protects communication that is testimonial in nature. A suspected rapist has always had to submit to a blood test, well before DNA came along, and could not argue that the blood test violated the Fifth Amendment, because blood is not testimonial; it’s physical.
All the way back in 1910, the Supreme Court said in Holt v. US, 218 US 245: “[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” The Court went on to point out that if it were not so limited, then in theory the Fifth Amendment could prevent a jury from looking at a defendant’s face and comparing it to a photograph.
Neither fingerprinting or DNA evidence violates the Fifth Amendment.
If I understand you correctly Caiata, the end result of testing is something akin to a bar code that’s unique to me. If evidence collected at a crime scene matches my code, then the authorities would want to have a chat. They’re not interested in anything that isn’t germane to the case.
It seems that some of the folks who posted to this thread have an inherent mistrust of law enforcement, and assume that if an opportunity for abuse presented itself, that it would be siezed. Sorry, but I don’t share that view. Without evidence to indicate that our society would be transformed into something out of a futuristic novel, I maintain that the benefits to society would outweigh the dangers.
But wouldn’t this require a court order, with the police detailing the reasons why they suspect the allged rapist? Or have I been watching too much Law and Order?
A bar code is a pretty good way of describing it - when the analysis is being performed in the automated electrophoresis machine it looks pretty much like a bar code on its side - a bunch of dark lines of varying thicknesses and at varying intervals. There’s no way police would want to get anything more than that; the probability that another person would have your “bar code” is generally around 1 to 1 x 10[sup]9[/sup] against. (I’m crap with statistics - did I say that right? Highly improbable, is what I mean.) To decode a person’s entire genome just to work out if they committed a crime really isn’t necessary, with statistics like that.
That said, there is a lot of research going on in the area. Police would love to have some sort of “DNA imaging” system, where the genome could be quickly analyzed to tell us what eye colour, skin colour, racial identity, hair colour, height, facial features, etc., a person had, just by placing a drop of blood/semen/saliva from a crime scene onto a microchip. This is a long, long way from being accomplished - we have the ability to detect certain base pair groupings by microchip, but no way to interpret that data into anything useful. It is coming, though; DNA is considered by many forensic services to be the be-all end-all of evidence, and a lot of money is being sunk into research programmes that will bring us closer to this ability. Imagine - to be able to tell what a suspect looks like just from a drop of blood at the scene! No more unsolved murders!
I find it pretty dodgy really; with the sensitivity of today’s methods (we can get mitochondrial DNA from mummies; we can get enough nuclear DNA from one cell to obtain a profile) I think this sort of thing will end up in the police harassing a lot of people who don’t have any real connection to crime - like the guy who rented the car 2 weeks ago, and now the car is being used as a getaway vehicle in a bank robbery. That’s why I’m ultimately against a nationwide or even statewide DNA database for all people. I’m OK with obtaining DNA samples from someone if there’s been enough evidence to implicate them in a crime & get a warrant for it, but not otherwise.
Remember folks, you do have to get a warrant to arrest someone unless you have caught them in the act of committing a crime or just before they’ve committed a crime. That warrant is issued by a judge on the basis of evidence that police have to link the accused person to a crime. They’re really, honestly not just arresting people randomly and using that leverage to get the DNA samples.
And what are you going to do when your DNA shows up somewhere you haven’t been?
Create an alibi? Why bother? Your DNA is at the scene, pal. DNA doesn’t lie! If you didn’t do it then why is your DNA on the body? If you didn’t do it, prove it!
Yes. Such an order required a finding of probable cause, the same standard for arrest. In other words, bascially if they could arrest you, then they could get your blood. And your fingerprints. And hair samples.
That would make the database pretty much entirely redundant.
Of course the whole idea is to widen the scope of the database. The whole proposition would be useless if it did not contain any data which was not redundant with the database which already exists and only contains samples from actual convicted criminals. More than anything this causes me concern. What, exactly, is the benefit of this database over the one which already exists?
Quite frankly I was very concerned with the way the “pro” side argued in this document.
So the solution is to expand it by collecting from everyone arrested? Even those not convicted?
And the absolute most chilling bit
Because that whole “jury of one’s peers” thing is “quaint” or “obsolete”.
The common perception of DNA evidence as definitive. This leads people to make stupid assertions like the one I quoted above. “DNA can prove innocence or guilt.” This common perception renders juries rubber stamps because it would take one hell of a lawyer to argue against a positive DNA match.
And to argue against a positive fingerprint match? How good a lawyer is needed in that case?
In any event, my question was: “Why is fingerprinting arrestees constitutional, but DNA-sampling arrestees unconstitutional?” It’s unclear to me how your observation addresses that question.
And this proposition will expire when the police force (or their outside contractor that they use to gather/store the samples) is equipped to accomplish it?
Bricker, FTR I don’t think I ever said that this was unconstitutional, I just think it’s wrong.
Actually, no. As I mentioned earlier, contrary to popular belief, fingerprinting is not an exact science. Not only is it not an exact science, but the weight of fingerprint evidence is nothing but circumstantial at best(AFAIK, IANAL). Recently, there have been exposes on fingerprinting techonolgies, standards and training that prove the point.
Also, there are always experts to be found whoc an dispute the evidence provided by another expert in trial. Due to the reasons I mention above(standards of matching prints, technologies and training), experts will often disagree with each other.
DNA evidence is also circumstantial, just as fingerprint evidence is.
There is no particular “weight” assigned to circumstantial evidence; it may be strong or weak. It’s not inherently better or worse than direct evidence.
There are experts that may dispute the findings of DNA, too, depending on how the DNA was collected and what method of DNA analysis was used. And of course the circumstances of the particular case may make DNA evidence irrelevant in any event.
It’s STILL unclear to me what, specifically, distinguishes DNA evidence from fingerprint evidence. What is the characteristic or circumstance of fingerprint evidence that makes fingerprinting an arrestee all right, but forbids DNA sampling an arrestee?
It’s interesting, but your post(aside from the last paragraph), doesn’t disagree with anything I have said thus far in this thread. Fingerprints are circumstantial evidence, as is DNA. Neither should be used as absolute evidence(or given a heavy “weight”, semantic argument, really). Experts have, do and will continue to dispute DNA results due to the imperfectness of the world and science.
That isn’t a real brain breaker. My fingerprints and saliva would be on a beer bottle that is transported to Tacoma, WA. Does that prove I was in Tacoma?
All that has been proven is that my DNA is at the scene. Sure, I visited the deceased two days prior to the killing, but was working 200 miles away at the time the coroner determines the killing to have taken place, with numerous ways of corroborating same.
The laws of probability also state that the DNA of the actor will be there, too. I have no problem with being questioned regarding an offense that I didn’t commit. Despite flaws, I still have confidence in the legal system, as it is superior to any others of which I’ve read.
My point is that DNA samples should be taken upon arrest, and that this procedure is both a wise policy and not remotely violative of any Constitutional guarantees.
Sure. There’s dozens of years of case law holding that fingerprinting arrestees is not violative of the Constitution, and we as a society have accepted the practice for years without blinking an eye.