Am I My Brother's Keeper: Familial DNA Searches in the Twenty-First Century

INTRODUCTION Over twenty-five years ago, British researcher Alec Jeffreys discovered DNA fingerprinting, (1) a technique used to identify the unique genetic material of an individual by analyzing sequences of deoxyribonucleic acid (DNA). (2) Today, DNA fingerprinting has expanded from a fledgling tool of law enforcement to a ubiquitous, valuable asset in criminal investigations and prosecutions. Correspondingly, criminal DNA databases have grown in size and function, ushering in a new advent of DNA searches. For example, "familial DNA searches" compare crime scene DNA evidence to offender profiles already in a DNA database, searching for a partial DNA match in the hopes that the perpetrator is a relative of an offender whose profile is already present in the database. (3) In July of 2010, California's use of familial DNA searches came to the forefront of the public eye with the arrest of Lonnie D. Franklin Jr., the alleged "Grim Sleeper" serial killer who may have been responsible for at least ten murders in the South Los Angeles area over a period of twenty-five years. (4) Often called "familial" DNA searches, partial match DNA searches have been used in criminal investigations and in missing person identifications. Although the United Kingdom pioneered the use of familial DNA searches in criminal investigations, recent efforts in California and Colorado indicate a growing interest in the use of familial DNA searches in America. (5) However, familial DNA searches implicate concerns over false positive results and placing family members of offenders, whose DNA profiles remain in a DNA database, under lifelong genetic surveillance. Also, because minorities constitute a disproportionate percentage of offenders in DNA database systems, familial searches may have a disproportionate effect on minority communities. Such concerns are of even greater importance because recent state and federal laws are beginning to allow DNA collection from arrestees, rapidly expanding the pool of available DNA profiles. With these changes occurring, society and national and state governments must address the growing role of DNA profiling in the American criminal justice system. Part I addresses the recent interest in familial DNA searches, while Part II analyzes the combined effects of allowing familial DNA searches in criminal investigations when DNA databases are expanded by requiring DNA samples from arrestees, in particular looking to California as a prototype. Part III asks whether these changes in the size and function of criminal DNA databases are a "database creep" (6) or the inevitable result of DNA profiling. This Note concludes that there are weak legal objections to expansions in the size and function of DNA databases while there are strong policy objections. Also, California is a likely prototype for other states interested in performing familial DNA searches and collecting DNA samples from arrestees. In addition, a universal DNA database is beginning to be recognized as a serious possibility and potential solution to disparities in nonuniversal, expanded DNA databases. This Note concludes that there should be greater discussion of the advantages and disadvantages to DNA profiling and expansion in the size and function of DNA databases. I. THE EMERGENCE OF FAMILIAL DNA SEARCHES A. The Use of DNA Profiling DNA profiling has been a useful tool for law enforcement, and law enforcement agencies are eager to see expansion in DNA database use and size. (7) DNA profiling can augment criminal investigations in many ways. A majority of crimes are committed by repeat offenders, (8) an important reason why DNA profiling is an effective tool. (9) DNA databases would likely provide more hits if criminals' "DNA profiles [could] be entered into the system early in their career, [so that] they can be identified when future crimes are committed." (10) Because DNA matching "may succeed when other forms of forensic or witness evidence has proved insufficient or unreliable in helping bring offenders to justice for crimes committed some years earlier," (11) it is increasingly used to generate suspect leads rather than support incriminating evidence against a previously identified suspect. …