On Accountability: Genetic Tools for Justice and Injustice in Criminal Proceedings

Abstract

Analysis of DNA found at crime scenes has made headlines when used to solve serial killer cold cases. The DNA Identification Act of 1994 approved the Combined DNA Index System (CODIS), a database that stores profiles of 20 genetic markers for forensic investigations. The CODIS markers were specifically chosen because they were thought to be unlinkable to personally identifiable individual traits. However, advances in genetics research have expanded the traits associated with CODIS markers and increased the tools and applications of forensic genetics, thus further increasing the information investigators could gain from a suspected person’s CODIS profile. This is also true regarding private companies, who may analyze genetic information beyond that included in a CODIS profile. These scientific developments may lead to infringements on genetic privacy rights. Additionally, in 2013, the US Supreme Court held in Maryland v King that people who have been arrested, even if they are acquitted or never indicted, can be added to CODIS databases. Due to racial biases in policing and arrests, this has led to inequity in who is represented in CODIS databases, specifically an over-representation of Black individuals’ genetic profiles. Therefore, the use of genetic tools in criminal proceedings, including but not only from CODIS databases, pose risks to privacy and also serve as a seemingly race-neutral tool that, in practice, promotes racial inequity. We suggest implementation of state-specific research and oversight boards with three charges focused on CODIS and investigations using genetic tools employed by private companies: (1) study uses of genetic tools in criminal investigations; (2) study the impact of genetic tools in criminal proceedings and interface with stakeholders and the general public; and (3) use knowledge from (1) and (2) to inform policy recommendations, for which we make several initial suggestions. These boards will provide accountability to increase accuracy, privacy, and equity when using genetic tools in criminal proceedings.