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Liberty and Justice For All? Law Enforcement’s Genetic Databases


Post-conviction DNA testing is largely the credit for reversal of cases of wrongful conviction, primarily spearheaded through the Innocence Project.  The success of utilizing DNA to disprove false evidence and accusation opened up legislation to provide post-conviction felons access to DNA based evidence. All states now allow such access through state-based legislation despite the Supreme Court decision in Osborne that felons do not have a constitutional right to access DNA evidence. But access to the nationwide DNA database (CODIS) remains limited to law enforcement use unless defense-access is ordered by a court.

A recent paper by Jason Kreag reviews the use of DNA in defense cases and examines the legality of access to DNA databases. Mr. Kreag delves into the question of why defense lawyers do not have the same access to these law enforcement databases as the officers who implicate a suspect based on a DNA match.

This article does not put in contention the constitutionality of the database itself, affirming the right of officers to collect DNA from arrested or convicted persons and store it indefinitely for the future use of solving crimes. Instead, it disputes the right of these agencies to restrict access of post-conviction felons and their representation to the database through the due process clause. Mr. Kreag goes on to argue that if there is a potential for a felon to submit his DNA and prove it is not matching the DNA collected at the crime, the felon should be afforded that right, not forced to surrender it to law enforcement officials and hope they find time to revisit his conviction with their database.