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Full-Text Articles in Law
The Genealogy Detectives: A Constitutional Analysis Of 'Familial Searching', David H. Kaye
The Genealogy Detectives: A Constitutional Analysis Of 'Familial Searching', David H. Kaye
Journal Articles
“Familial searching” in law enforcement DNA databases has been pilloried as a step “towards eugenics and corruption of blood” and “lifelong genetic surveillance” that is “inconsistent with a basic pillar of American political thought.” Courts have yet to address the issue fully, but several commentators contend that the practice is unwise, unjust, or unconstitutional. This Article examines the more significant constitutional claims. It concludes that although kinship matching should not be implemented simply because it is technologically seductive, neither should it be removed from the realm of permissible law enforcement information gathering on constitutional grounds. In reaching this conclusion, the …
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
Journal Articles
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 …
Chimeric Criminals, David H. Kaye
Chimeric Criminals, David H. Kaye
Journal Articles
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 …
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
Journal Articles
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 …
Trawling Dna Databases For Partial Matches: What Is The Fbi Afraid Of?, David H. Kaye
Trawling Dna Databases For Partial Matches: What Is The Fbi Afraid Of?, David H. Kaye
Journal Articles
DNA evidence is often presented as the “gold standard” for forensic science. But this was not always the case. For years, eminent scientists complained that the estimates of the tiny frequencies of DNA types were unfounded. It took scores of research papers, dozens of judicial opinions, and two committees of the National Academy of Sciences to resolve the dispute by the mid-1990s. Since 2000, however, reports have surfaced of shocking numbers of “partial matches” among samples within large DNA databases, and some scientists have complained that the infinitesimal figures used in court to estimate the probability of a random match …
Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried
Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried
Journal Articles
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 …