New Jersey Governor Chris Christie has signed a law mandating DNA collection for people who are merely arrested for a crime. Now while the retention of DNA information of people convicted of crimes is, for obvious reasons, less controversial, it’s not clear whether or not doing so in the case of arrestees is constitutional. A report by the Congressional Research Service from last year explored the question as it has been evaluated in the courts thus far, where there have been mixed responses.
In both U.S. district court cases, the government requested a DNA sample after the defendant was
arrested pursuant to a criminal indictment but before trial. Both courts applied the general balancing test to determine whether such collection was reasonable under the Fourth
Amendment.Their divergent conclusions can be explained, in part, by the courts’ differing characterizations of
DNA collection on both sides of the general balancing test. On the privacy intrusion side, the
Pool court viewed a DNA sample as no more intrusive than fingerprinting.In contrast, the
Mitchell court noted that DNA has the potential to reveal a host of private genetic information and
rejected the analogy to fingerprinting as “pure folly.”
It seems plainly obvious that DNA entails the collection of information that goes far beyond what fingerprints offer (if it didn’t you wouldn’t really need DNA would you?) but this is one of those areas where I think that culture has been so shaped by television police procedurals depicting DNA as the magic solution to any criminal case that I wonder whether people find it strange or alarming.
