Gil Auslander, St. John’s University School of Law Class of 2012, is the author of the fourth article in a ten part series from the staffers of the Journal of Civil Rights and Economic Development under the direction of Professor Leonard Baynes. He writes on pre-conviction DNA collection in the UK and US…

The early twentieth century witnessed the scientific breakthrough that allowed law enforcement to use fingerprints to solve crimes, capture and convict criminals. However, in the late twentieth and early twenty-first century, the use of DNA evidence for many of the same and various other applications has permitted it to surpass the importance of fingerprinting in the field of criminal justice. DNA, the genetic material that every living creature contains, can be extracted from nearly any biological residue that a person leaves behind. Therefore, the potential use of DNA in the criminal justice system is extraordinary. Society has embraced DNA evidence with fervor because it theoretically offers definitive proof of guilt or innocence. Nevertheless, despite the ever-expanding use of DNA evidence in the criminal justice system, it is an imprecise sword with equal potential to assist the government in combating criminality or to infringe on the right to privacy that many citizens hold dear.

Both the UK and the US, two nations with a rich and shared legal tradition and a deep commitment to individuals rights, have utilized DNA evidence in their criminal justice system. Despite these similarities, there are some significant differences in their approaches to DNA evidence. Until recently, the US has been hesitant to widely implement the use of DNA evidence. On the other hand, the UK has keenly embraced it. While both countries subscribe to the principle that individual privacy should be strenuously guarded against impermissible government intrusion, each has viewed the potential impact of DNA on individual privacy differently. Much of the contention regarding the use of DNA evidence in the US has surrounded the issue of collecting DNA before conviction. By contrast, in the UK, the greatest controversy concerns the retention of DNA profiles regardless of when the DNA was collected.

In the UK, two separate DNA regimes exist. Scotland employs a different DNA system than the other UK constituent countries. Both permit, and in fact require, the collection of DNA before an individual is convicted. The chief difference between the two systems is with respect to DNA retention. Despite being condemned by the European Court of Human Rights (ECHR), the DNA collection system in England, Wales and Northern Ireland permits the virtually indefinite retention of DNA, provided that the samples are used for law enforcement purposes. In contrast, Scotland, in nearly all circumstances, requires the destruction of DNA samples or profiles upon dismissal or acquittal.

The focus of litigation in US courts has been the timing of DNA collection rather than its retention. Much of the case law in the US concerns whether and under what circumstances DNA may be collected from defendants that have already been convicted of a crime. For example, cases have concerned when it is permissible to collect DNA from prison inmates, parolees and probationers. Recently, in response to changes in federal law, courts have begun to consider the constitutionality of DNA collection before conviction. Nevertheless, in contrast to the UK, which is bound by EU protections similar to the spirit and effect of the Fourth Amendment, the US has not seriously focused on issues of retention.

The approach to DNA in the UK and Scotland is more closely correlated to balancing the privacy rights of the individual while recognizing the interest of society at large to combat criminality. Notwithstanding the propriety of the UK’s polemical retention system, both the DNA regimes used in the UK do permit the pre-conviction collection of DNA, and do so in a manner that reasonably upholds the balance between individual privacy and governmental interests. Once an individual is a suspect, and then arrested and subsequently indicted, his rights and liberties are curtailed — the extent to which such rights are restricted is at the discretion of a court — despite a presumption of innocence. Therefore, the collection of DNA, which is used to fully identify a defendant and expose connections to past criminal acts (for which an individual has no expectation of privacy), serves both the government’s and the individual’s interests: it assists the government in solving and prosecuting crime and assists the suspect in expediting criminal proceedings. It is the retention of DNA, not its collection, which bespeaks potential government abuse and Orwellian tendencies. Should the defendant be dismissed or acquitted, the DNA sample or profile is destroyed and the privacy interest of the individual restored. While a defendant’s conviction would result in retention of his DNA profile, in that instance the defendant’s status as a convict already significantly reduces his expectation of privacy.

The real safeguard for individual privacy lies in DNA retention polices, not in the timing of collection, as may be witnessed by the divergence in the policies of the UK and Scotland. Thus, instead of focusing on when DNA is collected, the US should follow the the UK model, which will permit a more precise balancing of the individual and governmental interests.

Gil Auslander graduated from Binghamton University with majors in Economics and Political Science.

Suggested citation: Gil Auslander, Comparative Policies: DNA Collection and Retention in the US and UK, JURIST – Dateline, September 19, 2011, http://jurist.org/dateline/2011/09/gil-auslander-pre-conviction-dna-collection.php.