An improved (I hope!) version of an earlier post on the Ohio Supreme Court's opinion in State v. Emerson will be published in Jurimetrics: The Journal of Law, Science, and Technology (53:4). The current draft is available at http://ssrn.com/abstract=2238400.
Abstract: In State v. Emerson, 981 N.E.2d 787 (Ohio 2012), the Ohio Supreme Court discerned neither a statutory nor a constitutional barrier to retaining an acquitted defendant’s DNA profile in the state’s database when the profile was obtained with a search warrant and the defendant did not request expungement of the database record. The court wrote that the profile fell with the statutory category of “records from forensic casework or from crime scenes” and that “a person does not have standing to object to the retention of his or her DNA profile or to the profile's use in a subsequent criminal investigation.” This essay disputes both these conclusions. It argues that placing or retaining the profile of an acquitted individual, even one obtained with a warrant, in a database for convicted offenders violates the statute and that the affected individual has standing to complain. It concludes, however, that the entry and use of the profile in the database, although not statutorily authorized, does not contravene the Fourth Amendment.