Procedural Rights of the Accused May Be Eroding

DNA databases may seem more the domain of science fiction, rather than real life. However, the landscape of criminal prosecution may be changing, starting with a recent ruling from the U.S. 9th Circuit Court of Appeals.

The federal appeals court affirmed California law officials’ practice of collecting and retaining DNA samples from arrestees — even if formal criminal charges are never filed. Not surprisingly, some criminal justice advocates, including the American Civil Liberties Union, have characterized the ruling as an intrusion upon personal privacy.

A criminal defense attorney may also find it hard to reconcile the ruling with the Fourth Amendment’s protection against unreasonable searches and seizures. Taking a sample of a person’s DNA certainly seems like a seizure, and to have that genetic information compiled in a permanent database may invite comparisons to a non-democratic process.

As readers know, an arrestee may not always know the specific criminal charges against him. At the time of the arrest, police prepare an arrest report, which is forwarded to the local prosecutor. Either a grand jury or the prosecutor can determine what, if any, formal criminal charges will be filed.

Fortunately, this practice is not yet uniform across the country. However, a ruling from a federal appeals court has a great deal of persuasive authority. Prosecutors and law enforcement officials may use the ruling as incentive for more aggressive tactics. With the help of a criminal defense attorney, an accused can insist upon his procedural rights and hold prosecutors to their burden of proof.

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