The Judicial Reception of Acquiring Biometric Data on Arrest: Photographing, Sizing, and Fingerprinting Before 1933

A recent article suggests that in the first third of the Twentieth Century, American courts generally did not sanction photographing, fingerprinting, or making physical measurements of arrestees (Bertillonage). According to Wayne A. Logan, Policing Identity, 92 B.U. L. Rev. 1561 (2012), courts did not “sanction the common practice of ‘mugging’ every suspect whose picture and measurements the police would like to have. Nor d[id the courts] sustain the right to retain the prints and measurements after acquittal.” Id. at 1579 (quoting A.M. Kidd, The Right to Take Fingerprints, Measurements and Photographs, 8 Cal. L. Rev. 25, 32 (1919)). A mere “handful of decisions [adopted] a more generous stance.” Id. The early regime of general disapproval of police acquisition of biometric data then changed “[s]tarting in the 1930s, [as] courts began evincing a less critical and more accepting view. Most notably, in United States v. Kelly [55 F.2d 67 (2d Cir. 1932)] the Second Circuit rejected a challenge to the use of identity evidence, based on the absence of statutory authority to extract prints, brought by a defendant facing misdemeanor prosecution under the National Prohibition Act.” Logan, supra, at 1580.

The theory that United States v. Kelly, 55 F.2d 67 (2d Cir. 1932), represents a phase shift is open to serious question. True, a mere handful of decisions upheld the collection, retention, and widespread circulation of biometric records all at once. But then again there were only a handful of reported opinions—of any kind on each of these matters. An annotation from 1933 observed that

Considering the large number of arrests that are made, there are comparatively few cases in which the right of a person to prevent his description from taking its place in the "rogues' gallery" has been involved. The decisions of those few cases are not uniform. This is accounted for in part by the difficulty the courts find, on account of the form of the pleadings, in granting the relief sought. Both mandamus and injunction have been held not to be the proper remedies.

Annotation, Right to Take Finger Prints and Photographs of Accused Before Trial, or to Retain Same in Police Record After Acquittal or Discharge of Accused, 83 A.L.R. 127 (1933).

Having now read almost all the appellate opinions in the original annotation, my conclusion is that the clear majority rule favored the collection and retention of the data. Both before and after Kelly, appellate courts did not recognize high constitutional barriers to collecting biometric data from arrestees and rarely found merit in demands for the destruction of fingerprints, photographs, or bodily measurements.

Proceeding chronologically, in the earliest case collected in the Annotation, the Indiana Supreme Court evinced no doubt that a sheriff had the power to acquire biometric data on an arrestee. In State ex rel. Bruns v. Clausmeier, 57 N.E. 541 (Ind. 1900), the gravamen of the complaint was libel—that the sheriff damaged an acquitted defendant’s reputation by circulating his picture. The Indiana Supreme Court observed (in dictum) that “It would seem, therefore, if, in the discretion of the sheriff, he should deem it necessary to the safe-keeping of a prisoner and to prevent his escape, or to enable him the more readily to retake the prisoner if he should escape, to take his photograph, and a measurement of his height, and ascertain his weight, name, residence, place of birth, occupation, and the color of his eyes, hair, and beard, as was done in this case, he could lawfully do so.” The court cited no opinions to the contrary.

In Shaffer v. United States, 24 App. D.C. 417 (D.C. 1904), the defendant objected to the use of his arrest photograph (in which he had no beard) to help a witness identify him at trial (when he had a beard) on the ground that the state had no right to photograph him for that purpose and that using the photograph at trial violated his right not to be compelled to incriminate himself. The District of Columbia’s Court of Appeals forcefully rejected the argument, observing that photographing arrestees was “one of the usual means employed in the police service of the country, and it would be matter of regret to have its use unduly restricted upon any fanciful theory or constitutional privilege.”

Thus, the earliest appellate cases reflect no condemnation of the routine collection biometric identification information following an arrest. However, the Louisiana Supreme Court expressed a different view in Itzkovitch v. Whitaker, 42 So. 228 (La. 1906), and Schulman v. Whitaker, 42 So.2d 227 (La. 1906).  In these cases, the court saw no reason to take photographs (and share them with other police agencies) before conviction. The Louisiana Supreme Court cited no opinions previously adopting this position. Clausmeier and Schaffer notwithstanding, the Whitaker court “found no precedent directly pertinent to the issues here.”

The Arkansas Supreme Court in Mabry v. Kettering, 117 S.W. 746 (Ark. 1909), followed Clausmeier and Schaffer. Three men charged with state crimes and held in a county jail sought an injunction against developing the negatives of photographs that their jailers had taken. The state planned to give the photographs to federal officials “for the purpose of identifying appellants in the various localities where [federal] offenses are charged to have been committed.” The state supreme court held that they were not entitled to the injunction. It wrote that “[t]he authorities cited by appellants in support of their claim for a temporary injunction clearly recognize the principle that public officers, charged with the enforcement of criminal laws, and having in their custody individuals charged with crime, may use photographs for the purpose of identifying the individual accused.” The “identification” here plainly involved the use of the photographs in separate and unrelated investigations.

In the same year, Maryland’s highest court also rejected the Louisiana approach. In Downs v. Swann, 73 A. 653 (Md. 1909), the Court of Appeals affirmed the dissolving of an injunction against taking photographs and bodily measurements to identify an arrestee. This court defined “[t]he precise question” as “whether the police authorities of Baltimore city may lawfully provide themselves, for the use of their department of the city government, with the means of identification of a person arrested by them upon a charge of felony, but not yet tried or convicted, by photographing and measuring him under the Bertillon system.” The court perceived no constitutional defect in acquiring the identifying information. As for the general state of the law, the court explained that “The right of the police authorities to employ the Bertillon process for the identification of convicted criminals has been recognized in most, if not all, of the jurisdictions in which the subject has received consideration, although several courts and text-writers have either questioned or denied the right to subject to that process persons accused of crimes before their trial or conviction.” It cautioned, however, that it was not countenancing “the placing in the rogues' gallery of the photograph of any person, not a habitual criminal, who has been arrested, but not convicted, on a criminal charge, or the publication under those circumstances of his Bertillon record.”

In 1915, the Washington Supreme Court rejected an offender’s demand for the destruction of postconviction photographs. Although Hodgeman v. Olsen, 150 P. 1122 (Wash. 1915), is not a case on arrestee data collection—indeed, the court judiciously noted that did not need to reach the question of preconviction data collection—the opinion sheds light on the judicial understanding of that question at that time. The Washington court “call[ed] attention to . . . cases explicit in affirming the implied police power to take, preserve, and make reasonable use of such photographs and data for the identification of persons convicted of crime, and even of persons accused of crime, but not yet convicted.” 150 P. 1122. The only appellate cases to the contrary were the isolated Louisiana ones.

Finally, in Miller v. Gillespie, 163 N.W. 22 (Mich. 1917), the Michigan Supreme Court held that an arrestee was not entitled to the destruction of identifying records even though the charges against him were dismissed at trial. It perceived absolutely no authority—including the Louisiana cases—“for granting relief . . . , unless it can be said that the mere preservation in the files of the police department of a report proper to be made in the first instance—a true report—exposes plaintiff to ridicule, obloquy, or disgrace.” Naturally, the court was unwilling to say any such thing.

In sum, by the 1920s, the Louisiana cases were the exception to the rule. Those opinions, and ones from trial judges reaching similar results, never were the majority rule. The main innovation of United States v. Kelly, 55 F.2d 67 (2d Cir. 1932), was its deliberate extension of the majority rule to misdemeanor arrests. It described fingerprinting of arrestees as "widely known and frequently practiced both in jurisdictions where there are statutory provisions regulating it and where it has no sanction other than the common law." Id. at 70. The opinion was not radical. If it was persuasive in expanding the established doctrine, its impact may have been related to its unusually detailed analysis of the law and policy and to the prestige of the court. Judges Augustus Hand, Learned Hand, and Thomas Swan comprised the panel--a veritable judicial powerhouse.

References

Annotation, Right to Take Finger Prints and Photographs of Accused Before Trial, or to Retain Same in Police Record After Acquittal or Discharge of Accused, 83 A.L.R. 127 (1933).

David H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol'y 455 (2001)

A.M. Kidd, The Right to Take Fingerprints, Measurements and Photographs, 8 Cal. L. Rev. 25, 32 (1919)

Wayne A. Logan, Policing Identity, 92 B.U. L. Rev. 1561 (2012)

"Human Error, Bias, and Malfeasance" in DNA Databases and Law Reviews

A new article in the Boston University Law Review offers the following warning:

[E]xpansive police arrest authority—and the desire to continually enlarge identity evidence databases at very little cost in time and expense—should give pause for several reasons. First, contrary to common public perception, DNA is not infallible. Rather, like other evidence, it is subject to human error, bias, and malfeasance, and has figured in several wrongful accusations and convictions. As Professor David Kaye notes in his recent book:

How probable is it that two, correctly identified DNA genotypes would be the same if they originated from two unrelated individuals? By definition, [such matches] do not consider any uncertainty about the origins of the samples (the chain-of-custody issue), about the relatedness of the individuals who left or contributed the samples (the identical-alleles-by-descent issue), or about the determination of the genotypes themselves (the laboratory-error issue).

Wayne A. Logan, Policing Identity, 92 B.U. L. Rev. 1561, 1580-89 (2012) (footnote numbers omitted).

Having searched without success for a single case in the U.S. of a false conviction based on DNA evidence from a database search,¹ I was puzzled. Could I have missed several false convictions arising from erroneous DNA testing? Did these cases involve database trawls, where observer “bias” is not normally an issue?

Being a lawyer, I did what any reader of law review articles must do. I turned to the footnotes. The footnote on false convictions as a reason to constrain DNA databases reads as follows:

See Greg Hampikian et al., The Genetics of Innocence: Analysis of 194 DNA Exonerations, 12 Ann. Rev. Genomics & Hum. Genetics 97, 107 (2011) (mentioning existence of at least fifteen exonerations in which DNA resulted in conviction).

If Professor Logan (and the source-citation reviewers of the Boston University Law Review) are correct, Professor Hampikian discovered at least 15 cases of DNA evidence that resulted in false convictions. How could I have missed all these case in my earlier postings?

The Genomics and Human Genetics review article plainly does not even begin to support the claim that DNA testing produced 15 false convictions. It merely states that among previously analyzed cases of postconviction exonerations, "there were at least 15 cases where DNA was tested prior to conviction." Hampikian et al., supra, at 107. Let's look at the outcomes of this DNA testing, as presented by Dr. Hampikian and his colleagues:

• The cited article does not even discuss the outcome of the DNA tests in two of the 15 cases because there were no "transcripts or other accurate information on the DNA results available." Id. Counting two cases on which there is no information as showing that contemporary DNA databases produce false convictions is surprising.
  
• "The majority of these cases included proper testimony, with DNA results that excluded the exoneree (9 of the 13 cases). These exclusions were explained away by the state in various ways—perhaps the defendant had an unknown codefendant, the DNA could have come from a consensual sex partner, etc." Id. Claiming that DNA databases should be constrained because most DNA typing accurately showed that a defendant was not the source of an incriminating sample is a blunder.
  
• "In 5 of the 13 cases, DQ alpha tests included the exonerees as possible contributors. In 4 of these 5 cases, however, more discriminating tests performed postconviction excluded the exonerees. In the remaining case, a second round of DQ alpha testing exonerated the defendant after it was discovered that the original lab analysis was incorrect." Id. Before the DQA test was retired from forensic DNA testing, it was known to be relatively undiscriminating. See, e.g., Cecelia A. Crouse, Analysis of HLA DQ alpha Allele and Genotype Frequencies in Populations from Florida, 39 J. Forensic Sci. 731 (1994); NFSTC, DNA Analyst Training. Questioning databases stocked with CODIS profiles because a different, bi-allelic locus has different properties is off target.
• "There were four cases where improper DNA testimony was given at trial. In one, the analyst testified about a match based on DQ alpha testing; however, the analyst did not disclose that it was only a partial match. In another case, the analyst did not provide the proper statistic for the population included by the results of DQ alpha testing." To be sure, "improper" testimony is deplorable, but it is not clear that the analyst in the first case incorrectly stated the implications of the match or, more importantly for worries about databases, that analysts working with database matches would give incorrect estimates of genotype frequencies.
• "In a third case, the analyst testified that the DNA matched the exoneree, but failed to disclose an additional exclusionary DNA result." Withholding exculpatory evidence of any sort—DNA, fingerprint, toolmark, eyewitness, or anything else—is unconscionable and unconstitutional. But it is not much of an argument against inclusive DNA databases.
  
• “In the final case, the analyst misinterpreted the results of the testing (which was performed incorrectly—failing to separate the male and female DNA during differential extraction), falsely including the exoneree as a source of the DNA when in fact he should have been excluded.” Yes, if crime-scene DNA is mistyped, and if this error goes unnoticed, a database match could result.

Can DNA databases produce false convictions? Of course they can. Police can commit perjury about DNA evidence, just as they can about other evidence. If there were no databases, it might be slightly harder to fabricate such impressive evidence. DNA evidence, like all evidence, “is subject to human error, bias, and malfeasance.” So are law review articles. And so are blog postings—corrections are welcome.

Note

1. David. H. Kaye, Have DNA Databases Produced False Convictions?, Forensic Science, Statistics, and the Law, July 7, 2012 (cross-posted to The Double Helix Law Blog); David H. Kaye, Genetic Justice: Potential and Real, Forensic Science, Statistics, and the Law, June 5, 2011 (cross-posted to The Double Helix Law Blog).

The Department of Justice and the Definition of Junk DNA

In drafting an amicus brief in Maryland v. King, the case in which the Supreme Court is reviewing the constitutionality of routine collection of DNA before conviction, I decided it is important to clarify the term "junk DNA" if only because it gets tossed around in so many court opinions and briefs. The Department of Justice defines “junk DNA” as “[s]tretches of DNA that do not code for genes.” U.S. Dep’t of Justice, Nat’l Institute of Justice, DNA Initiative Training for Officers of the Court, Glossary, http://www.dna.gov/glossary/ (last visited Dec. 17, 2012). In scientific discourse, however, DNA does not “code for genes.” Rather, parts of genes encode proteins and RNAs. "Junk DNA" is not a synonym for the rest of the genome. It is a provocative and deprecated term for that "fraction of DNA that has little or no adaptive advantage for the organism." Sean R. Eddy, The C-value Paradox, Junk DNA and ENCODE, 22 Current Biology R898 (2012). Some of what NIJ thinks is "junk DNA" is important to fitness. It is not "junk."

NIJ's sloppy treatment of terms like "genes" and "junk" is unfortunate, but in the end I decided the awkward definition was not important enough to snipe at in the brief. On a blog, however, one can be more snippy.

Reconsidering the “Considered Analysis”: How Convincing Are the Cases Cited in the Stay Order in Maryland v. King?

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In King v. State, 42 A.3d 549 (Md. 2012), however, the Maryland Court of Appeals reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Even before the Court could consider issuing a writ of certiorari, Chief Justice Roberts stayed the Maryland judgment. His chambers opinion signaled that "given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below."

Some thoughts on the lower court opinions and the issues the Supreme Court will confront are in press in the online Discourse section of the UCLA Law Review. The essay provides a more coherent, complete, and polished presentation than the scattered remarks in earlier postings on this blog. It briefly examines four sets of opinions—the early one from the Virginia Supreme Court in Anderson, the Third Circuit’s en banc opinions in Mitchell, the Ninth Circuit’s panel opinions in Haskell (vacated to make way for en banc review), and the Arizona Supreme Court’s opinion in Mario W. Building on these judicial efforts, the essay outlines the Fourth Amendment questions that a fully considered analysis must answer, identifies questionable treatments of “searches” and “seizures” in the four sets of opinions, and criticizes the creative compromise in Mario W. that allows sample collection but not DNA testing before conviction.

I do not think that there is much room for compromise on the constitutional question. Various opinions maintain (in dictum) that preconviction collection is acceptable after, but not before, an indictment or preliminary hearing. That's another compromise, of sorts, and the Maryland law (as the state has implemented it) postpones DNA collection until after a probable-cause-for-trial hearing. Thus, anything the Supreme Court will say in King on DNA collection as part of the booking procedure will be dictum. It seems to me, however, that once an individual is legitimately detained, either the Fourth Amendment permits the compulsory collection, analysis, and use of DNA—the whole ball of wax—as a biometric identifier for both authentication and criminal intelligence purposes or it does not.  Thus, I am betting that the Court will write a broad opinion upholding DNA database laws at all points after arrest.  But IMHO, it's a close question.

References

• David H. Kaye, On the "Considered Analysis" of Collecting DNA Before Conviction, 60 UCLA L. Rev. Discourse (forthcoming 2013) (preprint)
• David H. Kaye, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection, 91 N.C. L. Rev. Addendum 1 (2012) (preprint)