All in the family: Legislation would allow familial DNA searches by law enforcement

Imagine a scenario where someone has broken a window to enter a home in the middle of the night, and the parents wake up the next morning to find their child gone.

Blood is found on the glass and that evidence is taken to the Hennepin County Sheriff’s Office or Bureau of Criminal Apprehension labs for DNA extraction.

“That DNA profile is run against the BCA database for convicted felony offenders to see if there is an identical match,” said Hennepin County Sheriff Rich Stanek. “Right now, if there’s not an identical match, that’s it. Investigators have nowhere else to go once they’ve exhausted all other investigative leads and that case remains unsolved.”

However, forensic sciences and new technology allow scientists to use familial DNA as a tool.

Familial DNA is the use of family members’ DNA to identify a closely related suspect in jurisdictions where large DNA databases exist, but no exact match has been found. The process involves using the DNA found at the scene of the crime to determine if part of the profile matches existing DNA in the criminal database, presumably from a blood relative of the yet unknown suspect. This would allow authorities to focus on a potential suspect, and possibly get the first break in a case that has otherwise provided no leads.

All in the family

The success of identifying a lead to a suspect of an unsolved crime using familial DNA would depend upon a parent, child or sibling of the suspect having previously provided a DNA sample.

“Familial DNA searches do not authorize the collection of additional DNA from people just because they are family members of a convicted felon,” Stanek said. “Law enforcement is still taking evidence from a crime scene and running it against the convicted offender database.”

Familial DNA has been successfully used in two California cases. Authorities in Santa Cruz last month linked a suspect to a 2008 robbery and sexual assault when DNA from a relative of the suspect matched DNA taken from the crime scene. Familial DNA also led authorities to the so-called “Grim Sleeper,” a Los Angeles man accused of 10 murders from 1985 to 2007.

Rep. Tony Cornish (R-Good Thunder) sponsors HF981 that would authorize the use of familial DNA searches in certain law enforcement investigations when certain criteria are met:

• no identical match to DNA collected from a crime scene in a database of DNA samples;

• the case in question is a first- or second-degree murder, first- or second-degree criminal sexual conduct, kidnapping, missing persons or other case that involves an imminent threat to public safety; and

• all other reasonable investigative leads have been exhausted.

Heard March 17 by the House Public Safety and Crime Prevention Policy and Finance Committee, the bill was held over for possible omnibus bill conclusion. It has no Senate companion.

“Technology has evolved to the point now where we would be remiss if we didn’t take advantage of it,” said Dave Bjerga, acting superintendent of the BCA. “This is a very small number of cases per year that we anticipate. … It’s time for Minnesota to take a lead in this.”

The bill would direct the BCA to establish rules governing the process and provide an annual report to the Legislature on the number of familial DNA searches requested, conducted, number of familial matches found as a result of the search and the status of any case where a familial match is found.

“This is a pretty complex area of science and that’s why we believe the specifics about how this would be implemented, putting in place processes and procedures, should be done through the BCA superintendent rulemaking process,” Stanek said.

What about privacy rights?

Rich Neumeister, a self-described “leading advocate on privacy and civil liberties and open government for almost 30 years,” said the Legislature needs to take the lead and provide direction to ensure accountability and transparency.

“There is no public input or the opportunity for lawyers, civil libertarians, anybody to make comment about the proposed rules,” he said. “Let’s have a full public discussion.”

Stanek said a number other states, including New York, Florida and Texas are using the science in some capacity, although not all have formal policies developed. California and Colorado are the only states with legislative rules to conduct such searches.

“Superintendent Bjerga and I have worked a number of cases over the years, and we can tell you story after story after story where this might have been very useful here in Minnesota,” Stanek said. “The time has come to take a hard look at this, a policy look at this.”

Critics say the search technique could infringe on privacy, unfairly target innocent people and disproportionately affect minority populations.

Christine Funk is a criminal defense attorney who has worked on DNA evidence and forensics since 1995 and has served on many state and national task forces, including a White House subcommittee on ethics, education and training for forensic scientists. She said the FBI doesn’t do familial searches, and that familial searches have a 90 percent failure rate. “This is not going to open the floodgates on convictions in unsolved cases,” she said.

“Please keep in mind this is a convicted offender database that they’re searching,” Cornish said. “If it only solves two cases … I’m sure if one of those cases was your missing child, you’d take quite a bit different look at it.”

Funk expressed great concern that the use of DNA matching would lead to “the investigation of innocent people.” Further, she said the use of familial searches will disproportionately affect minority communities. “Because African-Americans are disproportionately in the database, the number of family members who will be subject to genetic surveillance is significantly higher,” Funk said.

Carolyn Jackson, the lobbying coordinator for the American Civil Liberties Union of Minnesota, said the organization opposes the bill not only because of the racial and privacy concerns, but there is no crisis that necessitates the proposed legislation. “Crime is dropping. We have a crime rate of 1967,” she said.

The organization also has Fourth Amendment concerns.

“Being related to someone who once committed a felony is not a reasonable suspicion of a crime,” according to written testimony given the committee. “Using the DNA database to identify relatives of felons as suspects in a crime will subject innocent people to police scrutiny and all the collateral consequences which arise from criminal investigations.”

Rep. Ernie Leidiger (R-Mayer) doesn’t understand the opposition. “This bill opens up another tool for law enforcement to use, and I would think that the ACLU would want to support something like this.”

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