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Drawing Lines: Unrelated Probable Cause As A Prerequisite To Early Dna Collection, David H. Kaye
Drawing Lines: Unrelated Probable Cause As A Prerequisite To Early Dna Collection, David H. Kaye
David Kaye
Swabbing the inside of a cheek has become part of the custodial arrest process in many jurisdictions. The majority view (thus far) is that routinely collecting DNA before conviction (and analyzing it, recording the results, and comparing them to DNA profiles from crime-scene databases) is consistent with Fourth Amendment protections against unreasonable searches and seizures. However, some judges and commentators have argued that DNA sampling in advance of a determination by a judge or grand jury of probable cause for the arrest or charge is unconstitutional. This essay shows that this demand is largely unfounded. Either warrantless, suspicionless DNA collection …
Chimeric Criminals, David H. Kaye
Chimeric Criminals, David H. Kaye
David Kaye
According to the book Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties — described as “the single most comprehensive articulation of the civil-liberties concerns associated with law-enforcement DNA databases,” “a series of measured arguments,” and “a touchstone for debates about the spread of DNA profiling” — an obscure genetic condition known as chimerism “could undermine the very basis of the forensic DNA system” and force a reconsideration of “the entire project of forensic DNA.” This conclusion is as unfounded as it is unnerving. Chimerism is a consideration in, but not a real obstacle to DNA identification. This essay explains …
Confronting Science: Expert Evidence And The Confrontation Clause, David H. Kaye, Jennifer L. Mnookin
Confronting Science: Expert Evidence And The Confrontation Clause, David H. Kaye, Jennifer L. Mnookin
David Kaye
In Crawford v Washington, the Supreme Court substantially changed its understanding of how the Confrontation Clause applies to hearsay evidence. Since then, the Court has issued three bitterly contested expert-evidence-related Confrontation Clause decisions, and each one has generated at least as many questions as answers. This article analyzes this trilogy of cases, especially the most recent, Williams v Illinois.
In Williams, the Court issued a bewildering array of opinions in which majority support for admitting the opinion of a DNA analyst about tests that she did not perform was awkwardly knitted together out of several incompatible doctrinal …
Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried
Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried
David Kaye
DNA typing has had a major impact on the criminal justice system. There are hundreds of opinions and thousands of cases dealing with DNA evidence. Yet, at virtually every stage of the process, there are important issues that are just emerging or that have been neglected.At the investigative stage, courts have barely begun to focus on the legal limitations on the power of the police to obtain samples directly from suspects and to use the data from DNA samples in various ways. Issues such as the propriety of "DNA dragnets" (in which large numbers of individuals in a geographic area …