GENOMICS

Interactive Map: State Policies for DNA Crime Databases Vary Widely

Many Rules and Restrictions Lack Transparency

See also: Feature: DNA Confidential: State Law Enforcement Policies for Genetic Databases Lack Transparency
Feature: The Terms for a Search: How a Law Enforcement Analysis of DNA Evidence Unfolds

This map charts state policies regarding partial match reporting and familial searching. A “partial” match in this context refers to two genetic profiles—one derived from a crime scene sample and the other from an offender profile in CODIS, the FBI’s Combined DNA Index System—that share some, but not all, of the thirteen core DNA loci that comprise a CODIS profile. Each locus is a point along an individual’s DNA where scientists look for identifying variants in the genes that make up our genetic code. Each DNA locus in a CODIS profile is made up of two alleles, one inherited from each genetic parent. This kind of match excludes the offender whose profile provides the match, because that individual’s DNA is demonstrably different from the crime scene sample. But a partial match can implicate an offender’s close genetic relatives as possible perpetrators of a crime because they, like the crime scene sample, share some but not all of the examined loci with the individual whose CODIS profile provided the partial match. In effect, reporting partial matches implicitly incorporates offenders’ close genetic relatives into existing offender databases, even though these relatives have never been convicted of, or arrested for, an offense qualifying them for database inclusion.

Original research reveals policies

This survey was conducted in two parts. I first tracked down and read relevant statutes, regulations, and attorney general memos available on the LexisNexis and Westlaw legal databases. I also reviewed pending legislation to DNA database statutes where available. For the large majority of states without clear rules governing partial match reporting or familial searching in these sources, I reached out by phone and email to state forensic crime laboratories. In most instances, I spoke with CODIS administrators or DNA technical leaders.

I initially inquired into whether the state conducted “familial or partial matching.” In speaking with state laboratory personnel, however, I quickly learned that many states distinguish between partial match reporting—informing investigators about partial matches discovered unintentionally during routine database searches that indicate the possible involvement of a genetic relative of an offender in the given database—and familial searching—the intentional search for such matches. Consequently, for most states, I asked about familial searching as distinct from partial match reporting.

Many states have policies, but they are hard to find

Thirty-nine states participated in this survey. Thirty-two of these states have articulated policies or practices regarding partial match reporting or familial searching. Five more report that policies are in currently in the process of being formulated or codified. Two states’ representatives could not say for sure whether familial searching or partial match reporting was permitted. As this map makes clear, DNA policy in this arena varies widely between jurisdictions. Nonetheless, some significant trends can be discerned.

First, of the 32 states with some policy or practice already in place, at least 15 permit or have permitted the reporting of a partial DNA match to criminal investigators for purposes of familial investigation. This number is significantly greater than the handful of states identified in most existing scholarly or newspaper articles. Nearly all of these states draw a sharp distinction between partial match reporting and familial searching. The former has been undertaken at least once in each of these 15 states; the latter, conversely, was explicitly disavowed by at least 10 of these states. Only two states acknowledged familial searching as a permissible component of their state policy.

This distinction between partial match reporting and familial searching has some intuitive appeal. Requiring lab personnel to keep unintentionally discovered partial match information secret may appear to interfere with the investigative role that such personnel generally play. But this distinction is also deeply contestable. Familial identification practices implicitly incorporate individuals into existing offender databases who are not subject to such inclusion directly, and concerns about this practice apply with equal force to both partial match reporting and familial searching.

A second significant trend, discussed in further detail in a companion article , is that most states that permit at least partial match reporting have set forth their partial match reporting practices only in internal lab manuals. Four states that have reported a partial match at least once do not have any written policy. Of those with written policies, only California has made its policy explicit through a well-publicized memorandum from the state attorney general. Only one state thus far has enacted a statute related to partial match reporting and familial searching specifically—Maryland. That statute expressly forbids familial searching; it is not clear whether this also prohibits partial match reporting. Four states have written prohibitions of both partial matching reporting and familial searching—all four of which appear in lab manuals. States therefore tend to set down their policies in this arena in lab manuals, if they set them down in writing at all. This trend has significant implications for public awareness of these policies and transparency values more broadly.

Finally, bringing these two trends together, among states that have reported partial matches, those with written policies tend to impose greater requirements for additional analysis or review prior to disclosure than states whose partial match reporting policies are unwritten. Ten of the 11 states with written policies permitting partial match reporting recommend or require that reporting be contingent on additional genetic or statistical analysis yielding results concordant with a possible familial relationship between the two DNA samples being compared. Seven require that the DNA samples in question have some minimum number of alleles in common—usually more than half. Conversely, the four states that have reported partial matches in the absence of a written policy appear to have placed fewer subsequent hurdles to disclosure once a partial match is identified. Two states have disclosed a partial match only in one or two isolated instances, and so we likely cannot say anything concrete about their general policies in this respect. Of the remaining two, however, one identified no additional restrictions to disclosure, while the other required only that the DNA samples share a majority of available alleles in their CODIS profiles. The additional restrictions on disclosure that form a part of the written policies underscore the importance of engaging in the process of deliberation and thoughtful consideration that culminates in a written policy.

Download the survey data behind this map as an Excel spreadsheet.

Natalie Ram is a Greenwall Fellow in Bioethics and Health Policy at Johns Hopkins and Georgetown Universities. She served as a summer research fellow at the Center for American progress in Summer 2009.

Tags: FBI, genomics

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