Creating a Wanted Poster from a Drop of Blood: Using DNA Phenotyping to Generate an Artist's Rendering of an Offender Based Only on DNA Shed at the Crime Scene

Digital wanted posters are already in use in a growing number of places, based only on genetic assessment of DNA phenotypes from biological specimens left by the unknown offender at a crime scene. Tough investigations are being solved across the world with these techniques, and the techniques are exploding in their ability to determine an increasing number of physical characteristics of the offender from DNA left behind at the scene. Although the techniques cannot yet determine all the characteristics in this mock wanted poster, that time is coming very soon, and the techniques already can provide valuable information regarding red hair, blue and brown iris color, likely geographic region of origin, and other characteristics. But in Minnesota, DNA analysis in criminal investigations, led by the highly-regarded Minnesota Bureau of Criminal Apprehension (“BCA”) laboratory, has been largely relegated to comparing known DNA genotypes extracted from arrested and convicted felons (“genetic fingerprints”) to DNA material found in unknown biological specimens left by offenders at crime scenes. This DNA genotyping focuses exclusively on portions of the DNA molecule that are prone to mutations over time, but that do not appear to control or contribute to any physical function, appearance, or other discernible characteristic of any person. DNA phenotyping, on the other hand, focuses exclusively on portions of the DNA molecule that control or contribute to physical characteristics, appearance, disease profiles, and the like. With DNA phenotyping then, testing can reveal many of the likely characteristics of the offender, including to one degree or another: skin, hair, and eye colors; geographical ancestry; gait; predisposition to smoking; left-handedness; and presence of or predisposition for certain diseases, including albinism and sickle cell anemia. If DNA phenotyping was used forensically *360 at the start of an investigation, one might imagine investigators disseminating a genetic “artist's rendering” of the suspect's physical characteristics (say, left-handed, Caucasian, freckled skin, red hair, and the like) that could help the investigators more quickly home in on the actual offender, and more quickly free innocent suspects who do not exhibit those physical traits. To this point, political correctness concerns akin to racial profiling and discrimination have squelched the adoption of DNA phenotyping to develop probable cause in investigations in all but a few nations. This article addresses Minnesota's halting DNA admissibility track record to date, the current state of phenotyping science, the current literature on ethical concerns regarding DNA phenotyping, the rationales posed by nations supporting and shying away from phenotyping, and concludes with the author's recommendations for Minnesota's prosecutors, defense attorneys, criminal investigators, judges, forensic scientists and laboratories, and perhaps most crucially, the Minnesota Legislature. The Minnesota Supreme Court has historically moved slowly in permitting the evidentiary use of DNA evidence. DNA phenotyping should not call forth the same judicial reticence since its use would be limited to the investigation only, it does not predict criminality from a certain ethnicity or set of physical characteristics, it is not akin to racial profiling but is akin to a fingerprint found at the scene or a physical description of a suspect provided by an eyewitness, and critically, no one now proposes that DNA phenotyping evidence per se be admitted into evidence at trial. By giving investigators advance notice of the likely physical characteristics of the offender, DNA phenotyping gives the investigators a powerful tool that can accelerate investigations, can secure the prompt release of innocent suspects not matching the subject's phenotype, and will eventually be able to provide a phenotypic artist's rendering of the suspect at the earliest stages of the investigation. This article calls for Minnesota to accelerate the spade work now to evaluate the predictive and investigative value of DNA phenotyping, to devise appropriate limits on its use while not precluding it all together, and to begin the process of using DNA phenotyping during the investigative phases of several key criminal cases so that caselaw can be created. It will not be long before DNA science yields the ability to craft an unknown and unseen suspect's facial image and body profile from the DNA the suspect left behind at the crime scene. Minnesota should be prepared.