Justice Department Reverses Decision on the Mandate of the National Commission on Forensic Science

The Justice Department reversed its position on the National Commission on Forensic Science's authority to recommend expansive criminal pretrial discovery of the opinions and information held by forensic scientists and criminalists who might testify for either the prosecution or the defense. The full remarks of Deputy Attorney General Sally Q. Yates and Judge Jed Rakoff, whose indignant resignation two days earlier, may have prompted her to reconsider the Department's position, are set out in an Appendix. So are statements from the Commissioners who spoke about the resignation.

According to Washington Post investigative reporter Spencer Hsu, an anonymous source in the Justice Department who "was not authorized to discuss the issue" "said the initial decision that pretrial evidence discovery rules were beyond the commission’s scope was made by Yates's predecessor, James Cole, before his departure Jan. 8." The short article does not explain why the Department did not convey Deputy AG Cole's decision to the judge or (it seems) anyone else on the Commission's Subcommittee on Reporting and Testimony until the eve of the Commission's fifth meeting.

The new decision led Judge Rakoff to rejoin the Commission and to continue as co-chair of the reporting and testimony subcommittee. With the discovery issue within its recognized purview, the subcommittee is free to submit a proposal for the full Commission to consider. In the end, the strongest proposal the Commission can make is a recommendation to the Attorney General.

References

• Spencer S. Hsu, Judge Rakoff Returns to Forensic Panel after Justice Department Backs Off Decision, Wash. Post, Jan. 30, 2015
• "A Bump in the Road" for the National Commission on Forensic Science, Forensic Science, Statistics, and the Law, Jan. 29, 2015

Appendix

The following are excerpts from the transcript of the second day of the January 29-30 Commission meeting in Washington, D.C. I have edited them to correct misspellings, remove redundancies, etc. The full transcript is (or at least was) at http://www.captionedtext.com/client/ViewTranscript.aspx?EventId=2541437&ParticipantId=14469494-359b-4882-ad09-d1f77ab69e5e.

[Acting Deputy Attorney General Sally Q. Yates:] First, let me thank all of you for being so flexible today to adjust your schedule so that Judge Jed Rakoff and I could join you together this afternoon. I would like to welcome Judge Jed Rakoff back to the Commission. Late yesterday afternoon, Judge Jed Rakoff and I got to speak at great length, and I was able to hear his concerns about the scope of the responsibilities of the Commission. I will tell you that I believe that reasonable people can differ on whether or not discovery is within the scope of this Commission's charter. I was able to hear Judge Jed Rakoff 's views that he believes it is very much in the scope. I also heard from the Attorney General that the [view] that it is not in the scope was also reasonable. What I heard yesterday afternoon was a game changer. I learned that since the inception of this subcommittee that the subcommittee has been operating with the understanding that discovery was within the scope of the subcommittee's charter. And the subcommittee has been working almost for a year now on discovery and has been working very hard and has been very thoughtful in its approach to these issues. And so it seemed to me that given that it is at least arguable, I know you feel it is more than arguable, but if it is at least arguable that this is in the scope of the charter, and given that the subcommittee has openly been doing this for almost a year with everyone knowing about it and working on the discovery, it seemed fair to me that under the circumstances that this Commission should have an opportunity to hear the subcommittee's views on that issue and that this Commission could make its determination as to what information should be provided to the Attorney General.

And so that is the way that I would like for us to proceed. In connection with that, I have asked Andrew Goldsmith, who some of you may know who is the Department's national discovery coordinator, to be available to the subcommittee if the subcommittee so chooses, to be able to get his perspective on what the impact of what if some of these occasions [recommendations?] might be on the department's practices. Andrew is here with me today and available to talk with any of you -- not just today but when the subcommittee meets going forward.

I don't want us to be in this position again. And so I have directed my staff to get together with the various subcommittees here to make sure we all have a complete understanding of what is on the agenda for each of the subcommittees. And if the Department of Justice or any of you as Commissioners have a problem or believe that any of that is outside the scope of the charter of this Commission, then you should go ahead and say something now rather than waiting until after the subcommittee has done much of its work. That is something that we are going to be doing going forward, and I hope that we can work with you in that regard.

On the discovery issue, this is obviously a critically important issue to the Department. We take very seriously our obligation to ensure that defendants receive a fair trial, and they can only get that fair trial when they receive the appropriate discovery. And so we look forward to hearing whatever information the Commission wants to give us on your perspective on that issue. And so without further droning on, I will turn it over to Judge Jed Rakoff.

[United States District Judge Jed Rakoff:] I am glad to be back. I know you have been working very hard all of these last two days. I tried my best to get out of it, but I didn't fully succeed. [Laughter] It was close. [Laughter]

I wanted to thank Deputy Yates for having the open-mindedness to reconsider and reverse the decision previously made. Like the deputies from the old West, I have learned that she is a straight shooter, and it has been a real pleasure having the chance to interact with her over the last two days. The bad side for you folks is you are stuck with me again. Bear with me as best you can. What I look forward to is having this Commission now give the fullest consideration to discovery views, discovery recommendations if there are such. These are matters of great importance, but they need to be discussed on the merits. Now thanks to Deputy Yates, we will have the ability to discuss the merits. I am also glad that we now have Mr. Goldsmith on board as well to help us with that.

My subcommittee will be at least available telephonically and have the reviews available for the next meeting. This is one area. I feel very strongly about this area. I don't want to minimize that this wonderful Commission has so many important areas that it is working on, and so for me, it is a great pleasure for me to rejoin this Commission. I thank Deputy Yates for making this possible. [Laughter]

[Commissioner (John Fudenberg?):] Dr. Mae and Deputy Yates, thank you for your time and support. I'd like to begin saying something briefly that doesn't have to do with our subcommittee. It's important to be said. I wanted Judge Rakoff to be here. [Note: By this point, Judge Rakoff had left: "With some embarrassment, when I didn't think I would be attending this meeting, I scheduled some things in New York ... I'm going to have to get a plane back, so I apologize.] I don't know him well enough to insult him, so I'm trying not to. I am personally embarrassed by what has happened the last couple of days. I think if we have disagreement, whether or not we are working on something for a year or something for a week, I think we should be mature about it, and talk to each other about it, and have open communication rather than packing up quitting, and I don't think that's appropriate. I think we as Commissioners should take the time and take a deep breath and talk issues through rather than having, I understand, newspaper articles today, which I think is embarrassing to this Commission, and I'm sure embarrassing to the Department. It was disappointing, and I think we should rise above those petty issues, and we should as a Commission commit to each other that we are going to try to work through issues before we start quitting. I don't know that he went to the media about it, but somebody did. I think as a member of the Commission, I want to apologize because I'm embarrassed for that.

---

[Commissioner ?:] Given that John talked about the judge, I'd like to go on record that I supported Judge Rakoff's action in resigning at the committee. I was the chair of the legal group that worked for months and months and went through 10 different drafts that we shared with everybody. I think it would have been (?) resignations next week if this had [not been] resolved as well as (?)

---

[Commissioner ?:] I also have tremendous respect for what Judge Rakoff did. I'm confident none of us know all the communications that were delivered from the Commission to both your predecessor and to you, and I'm sure we don't all the communications that went back and forth, but I'm confident there were sources of misunderstanding, and I'm really impressed both sides came back together to address that, and I trust both sides did that in good faith.

It's not uncalled for (?) stand up for (?) what the judge did. Whether I would've done it or not, it was an act of principle. But having said that, I am truly committed. I so appreciate the commitment to go forward to respect our charter and our independence. I just want to say thanks.

---

[Commissioner (Hon. Barbara Hervey?):] I want to echo some of their comments. I respect your right to have an opinion. I don't appreciate an apology on behalf of the Commission because I am sure that everyone has their thoughts and reasons and beliefs. On behalf of the judge, he is not here to defend himself, I think he had some very principled ideas. I am just grateful that all of you would sit down and maturely discuss all of these decisions and come to some conclusions that were helpful to all of us. I appreciate that.

"A Bump in the Road" for the National Commission on Forensic Science

Yesterday, U.S. District Court judge Jed Rakoff resigned from the National Commission on Forensic Science (NCFS). His resignation letter, placed on the web by the Washington Post, begins as follows:

Last evening, January 27, 2015, I was telephonically informed that the Deputy Attorney General of the U.S. Department of Justice has decided that the subject of pre-trial forensic discovery — i.e., the extent to which information regarding forensic science experts and their data, opinions, methodologies, etc., should be disclosed before they testify in court — is beyond the “scope” of the Commission’s business and therefore cannot properly be the subject of Commission reports or discussions in any respect. Because I believe that this unilateral decision ... reflects a determination by the Department of Justice to place strategic advantage over a search for the truth — I have decided to resign from the Commission, effective immediately.

According to Judge Rakoff,

The notion that improved discovery, going beyond what is minimally required by the federal rules of criminal procedure (which were drafted without any consideration of the difficulties unique to forensic science), is somehow outside the scope of the Commission’s work thus runs counter to both the mandate of the Commission’s Charter and the Commission’s overall purpose.

At today's Commission meeting, which is still in progress, several commissioners indicated frustration over this eleventh-hour ruling. Paul Giannelli, who drafted the "views" document for the subcommittee, noted that it went through some seven iterations with no indication from the Justice Department that it was beyond the "jurisdiction" of the NCFS and that the initial written instruction from a Department of Justice liaison stated that the subcommittee should consider “legal issues inherent in reporting and testimony, such as discovery.” (Emphasis added.) Peter Neufeld asked to see the internal memorandum to the Deputy Attorney General and noted the absence of any written statement from the Deputy AG.

My guess is that the topic of access to information from forensic science laboratories will not be deemed off-limits to the Commission but that no recommendations regarding possible amendments to the rules of discovery will be permitted. The Deputy Attorney General is expected to appear before the Commission tomorrow afternoon. The Department of Justice's co-chairman of the Commission referred to the matter as a bump in the road on which the Commission is traveling.

Postscript (added 1 Feb. 2015): My guess was wrong.See Justice Department Reverses Decision on the Mandate of the National Commission on Forensic Science, Jan. 31, 2015.

Reference: Spencer Hsu, U.S. Judge Quits Commission to Protest Justice Department Forensic Science Policy, Wash. Post, Jan. 29, 2015.

A Probability for Dog DNA

A pet peeve of many statisticians is the transposition fallacy—misconstruing the probability of the data given the hypothesis as the probability of the hypothesis given the data. In general,

P(data | hyp) ≠ P(hyp | data).

The term “pet” is particularly apt in the case of yesterday’s PBS “Here and Now” interview on animal DNA analysis in forensic science. The program’s host interviewed WBUR’s Vicki Croke, who has written an engaging and informative account of “Pet CSI: How Dog and Cat DNA Nabs Bad Guys.” She begins with the following case:

On Sept. 14, 2000, Wayne Shumaker, 58, Corby Myer, 30, and Lynn Ganger, 54—three carpenters building a barn loft at an upscale property near Lakeville, Indiana—were bound and shot execution style during an armed robbery. Less than two years later, the triggerman in the case, Phillip Stroud, was found guilty on all three counts of murder and sentenced to life in prison. The criminal was done in—at least in part—by the dog droppings he had stepped in during the commission of the crime. It turns out that dog feces not only messed up his sneakers, but his defense too. It was a simple mistake that was exploited by the prosecution using some new and very sophisticated science. Samples from Stroud’s sneakers were compared to dog feces at the barn. Through DNA analysis (as they exit, feces snag DNA-carrying epithelial cells from the colon), the specimens turned out to be a perfect match—proof positive that the defendant had been present at the scene of the crime.

In the interview, Ms. Croke elaborated on "proof positive" as follows:

[T]he lab needs to calculate probabilities. How common is this particular pattern of DNA in the wider population? In other words, how likely is it that this hair could have come from any other dog or cat than the one linking the criminal to the crime? In the triple murder case we were talking about, the probability that the feces on the suspect’s sneaker came from any other dog than the one at the scene of the crime was one in ten billion!

Here and Now's webpage thus refers to "a probability test to determine how likely it is that the DNA comes from any other animal in the area."

These characterizations are fairly typical examples of transposition. The data in the triple-murder case are the pair of DNA profiles that are said to match. The hypothesis is that the source of the sneaker DNA is a different dog. We’ll call this the defense hypothesis, def-hyp. Assuming no laboratory error in profiling ever occurs, the probability of the data—the matching profiles—given that they came from different (and unrelated) dogs is the frequency of the profile in the “wider population.” Let’s assume that one in ten billion is a good estimate of that probability. That is,

P(data | def-hyp) = 1/10,000,000,000.

Is “the probability that the [DNA] came from any of other dog” also 1/10,000,000,000? Not exactly. This probability is P(def-hyp | data). According to Bayes' rule, it depends not only on P(data | def-hyp), but also on two additional probabilities. For one thing, we need to know the probability of the data given the prosecution’s hypothesis, P(data | pros-hyp). This probability is 1 (if the lab is certain to declare a match when the two samples really contain the same dog's DNA).

Another factor to consider is the prior probability of the defense hypothesis, P(def-hyp). How many alternative dogs could have been crossing defendant’s paths in the weeks before the murder? One thousand seems like a lot. If we take the prior odds for the defense hypothesis to be 1,000:1, then the match to the dog doodoo in the barn reduces these odds to 1,000:10,000,000,000 = 1:10,000,000.

What is the moral? Transposition is wrong, but almost everybody, from journalists to jurors, does it. A DNA match to a random, unrelated dog may be a one in ten-billion event, but it does not follow that the probability that defendant stepped on stuff from an unrelated dog is one is ten billion. That said, if the random-match probability is as infinitesimal as one in ten billion, the probability of the defense hypothesis (about an unrelated dog being the source of a true match) is still doggone small. Transposition should be avoided, but it is not always the most grievous of errors.

Buza Reloaded: California Balancing

This is the fourth installment on Buza II, the opinion of the California court of appeal that invalidates the state's DNA-on-arrest law. It discusses the part of the opinion that argues that the balance the U.S. Supreme Court struck in Maryland v. King is either flatly wrong or wrong for California. In giving substantial weight to concerns over "familial searching" and the information content of DNA samples, the opinion assumes that it is appropriate to strike down a law that is constitutionally reasonable as currently implemented because future developments might make it unreasonable as then implemented. This premise is highly contestable.

Formally, the conclusion that California's DNA-BC (Before Conviction) law is unreasonable under the Fourth Amendment as it appears in the California Constitution does not imply that it is unreasonable under the Fourth Amendment as it exists in the U.S. Constitution. California is a sovereign state of the Union, and its courts can read different meanings into the words of its constitution. But many of the reasons the Buza II opinion gives for its conclusion—if correct—also apply to nearly all of the 25 or so DNA-BC laws on the books, and the opinion itself indicates that, in large part, the divergence between Buza II and King emanates from the California judges’ outright disagreement with the Supreme Court's balancing in King.

To begin with, the California judges complain that King “unjustifiably dismissed concerns about the extent of the personal information contained in DNA samples by limiting ... attention to the profile used in DNA databanks, as currently restricted by statutes and scientific capability.” One might expect that this observation immediately would be followed by the undeniable fact that the entirety of a person’s genome contains some medically significant information that would not otherwise be known, such as predispositions to certain diseases. Testing for these alleles (or for markers for them) would pose significant privacy issues (which is why such testing generally is prohibited without the individual’s consent).

But the opinion veers off into a superficial discussion about the CODIS profile itself. The problem, according to Buza II, is that the profile can be used not merely to identify an individual whose DNA is taken when he is arrested, but also sometimes can be used to identify a first-degree relative as a likely source (when the arrestee’s DNA is a close mismatch to the crime-scene sample). This “familial searching,” as the court calls it, is a “factor not relevant to identity,” and therefore “present[s] additional privacy concerns.”

The second part of this statement is true enough. Like a perfect match, a close mismatch is relevant to the identity of the DNA source, but it also reveals that the arrestee could be genetically related to the source of the crime-scene DNA. 1/ Consider the “Grim Sleeper” case of serial rapes and murders in the Los Angeles area, with years of apparent inactivity between some of the attacks. Trawls of the database proved fruitless—until Christopher Franklin was convicted of a felony. His DNA profile did not match the Grim Sleeper’s, but it lined up with it in a manner that would be expected if the two were father and son. This led investigators to Christopher’s father, Lonnie Franklin, Jr. In this way, Lonnie emerged as a suspect only because of his son’s conviction. (His DNA profile was not in the database because his arrests had occurred before California had a database.) Now he stands accused of ten murders.

People v. Franklin reveals an important fact about kinship trawling. In Franklin, it is difficult to discern the slightest “additional privacy concerns.” That Lonnie was Christopher’s father was a publicly known fact, not a private secret. Furthermore, Lonnie can hardly claim to have a legitimate Fourth Amendment interest in keeping secret the fact that it was his DNA that was found on or around murdered women. 

Of course, there could be other cases in which the familial relationship between the database inhabitant and the culprit was not known to one or both of the genetically related individuals. In such situations, the claim to a right to keep the genetic relationship secret is more plausible. But the existence of possible cases of this kind does not demonstrate that the occasional legitimate privacy interests that might be affected by the rare, "other-directed" trawls (that look for people outside of the database) outweigh those of the government.

In particular, for Mark Buza and his relatives to have an additional privacy interest compromised by the arresteee database, at least two conditions would have to be fulfilled. First, California would have to initiate other-directed trawls of its arrestee database. It has never done so, and it cannot do so under the policy its Department of Justice has adopted for such database trawling. This policy confines the other-directed trawling to convicted-offender databases. Second, Mark Buza would have to have publicly unknown first-degree relatives whose DNA profile would be close enough to Mark’s to implicate them in other crimes via a kinship match to Mark’s profile.

On its face, the first condition suggests that the parts of the opinion discussing “familial searching” are inapposite. Why strike down a law because of what could be but is not? Nonetheless, the Buza court’s sensitivity to the possibility of a change in the state’s DNA-BC practice might be seen as prescient rather than premature. From the outset, an argument against DNA databases has been mission creep. Once the database is established, the state will be tempted to use it for additional and more insidious purposes. To guard against this outcome, the argument goes, society should bind itself to the mast in anticipation of an irresistible siren song.

There are situations in which this self-disabling strategy is advisable. Indeed, much of the Bill of Rights constrains the majority from doing what seems expedient or appealing in the heat of the political moment. But it is not so clear that a handful of judges should block the democratic decision to allow DNA-BC to be used in acceptable ways that advance law enforcement on the ground that the system might be administered in unacceptable ways at some future time. If and when a jurisdiction combines other-directed trawling and DNA-BC, courts can consider whether that type of trawling is so serious an invasion of privacy as to render it unconstitutional. Cf. United States v. Knotts, 460 U.S. 276 (1983) ("if such dragnet type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable."). Using the mere possibility of a correctable change in the allowed uses of the DNA data to strike down the collection and otherwise acceptable uses of the data seems Draconian.

Moreover, relying on future familial searching as a ground for striking down the system as currently implemented is inconsistent with Buza II’s effort to distinguish the Maryland practice. Presiding Justice Kline emphasized the existence of a Maryland statute banning familial searching. But as Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Judicial Circuit tartly observed in oral argument in Haskell v. Harris (a separate case challenging California DNA-BC law), statutes can be changed too. The logic of Buza II—that databases that are constitutionally reasonable (as currently implemented) but might become unreasonable (as implemented in the future) are constitutionally unreasonable ab initio—would render the Maryland law on DNA-BC unconstitutional.

Despite these problems, Buza II applies the nip-it-in-the-bud reasoning not only to DNA profiles but also to samples. Displaying little knowledge of behavioral genetics, the court invokes “the pedophile gene” and “the violence gene” that, it imagines, might well be discovered some day. It predicts that “surely law enforcement will seek to mine genetic information for that ‘identification purpose.’” 
But there is no good reason to believe that the word “identification” as used in DNA-BC laws would permit predictive genetic testing for these behaviors, and the court makes no attempt to explain why such testing could not be condemned as constitutionally unreasonable if and when the time arises.

My criticism of the court of appeal's reliance on dystopic visions of the future is not based on naive faith in the goodness of police and law enforcement laboratories. Courts need not—and should not—trust law enforcement to exercise perfect self-restraint in investigative methods that easily can be abused. Before approving a DNA database system, they should satisfy themselves that sufficient safeguards against predictable abuses are in place. But if such protections are present, courts should not invalidate a system because the safeguards might be removed or might cease to be effective in the future. In this case, might does not make the decision right.

Note

1. Confusingly, the court presents this fact as if it "disproves the King majority’s assumption that 'the CODIS loci come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee.'" Some noncoding DNA does affect visible traits of an arrestee, but the CODIS loci, as far as current science can tell, do not reveal much about any phenotypes. Because all DNA sequences are inherited, however, including those that King (also confusingly) calls "junk," the ones that vary across individuals, can be used in kinship analysis. In fact, the sequences that do give rise to individual traits often are the best for this purpose because they tend to be extremely variable within populations.

References

• David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014)
• David H. Kaye, Maryland v. King: Per Se Unreasonableness, the Golden Rule, and the Future of DNA Databases, 127 Harv. L. Rev. Forum 39 (2013)
• David H. Kaye, The Genealogy Detectives: A Constitutional Analysis of “Familial Searching”, 51 Am. Crim. L. Rev. 109 (2013)
• Henry T. Greely & David H. Kaye, A Brief of Genetics, Genomics and Forensic Science Researchers in Maryland v. King, 53 Jurimetrics J. 43 (2013)

Closely related postings

• Buza Reloaded: Court Shifts Ground But Again Invalidates California’s DNA-on-arrest Law, Dec. 7, 2014
• Buza Reloaded: The Fourth Amendment Framework, Dec. 22, 2014
• Buza Reloaded: Fourth Amendment Balancing, Jan. 1, 2015
• The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard, July 17, 2014
• The Impact of Medina's Marginal Balancing on DNA Databases and Sample Retention, July 16, 2014
• Kansas Court of Appeals Rejects Post-King Challenge to DNA Collection on Arrest, June 8, 2014
• What Is Wrong with People v. Lowe? More on DNA-on-Arrest Laws After Maryland v. King, March 24, 2014
• The Ninth Circuit's Minimal Opinion in Haskell v. Harris, March 22, 2014
• Get Serious: The US Department of Justice's Amicus Brief in Haskell v. Harris, December 6, 2013

Buza Reloaded: Fourth Amendment Balancing

This is the third installment on Buza II, the opinion of the California court of appeal that invalidates the state's DNA-on-arrest law. It comments on the court of appeal's treatment of the definition of a "search" and the court's claim that the reasons the Supreme Court gave in Maryland v. King for upholding post-arraignment DNA collection from Alonzo King are "completely inapplicable" to taking DNA from Mark Buza during booking.

Having described the scope of totality-of-the-circumstances balancing in exceedingly generous terms, Presiding Justice Kline turns to a logically prior Fourth Amendment question—should the DNA collection from Buza be considered a search under the Fourth Amendment? This definitional issue is a condition precedent to reasonableness balancing in that the state has no burden of showing reasonableness if it does not conduct a “search or seizure” within the meaning of the amendment.

Again, the court reaches the correct conclusion—of course there was a search—but the exposition raises some questions. Presiding Justice Kline wrote that

Nonconsensual extractions of substances that may be used for DNA profiling are “searches” entitled to the protection of the Fourth Amendment. (King, supra, 133 S.Ct. at p. 1969 [buccal swab]; Schmerber v. California (1966) 384 U.S. 757, 767-771 (Schmerber) [blood]; People v. Robinson, supra, 47 Cal.4th at p. 1119 [blood]; Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 616-617 [breathalyzer and urine sample]; Cupp v. Murphy (1973) 412 U.S. 291, 295 [finger nail scrapings].) The physical intrusion involved in the buccal swab procedure used in the present case has been viewed as minimal. (King, at p. 1969.) The collection of the DNA sample, however, is only the first part of the search authorized by the DNA Act; the second occurs when the DNA sample is analyzed and a profile created for use in state and federal DNA databases. The latter search is the true focus of our analysis. (Brackets in original).

Most of this paragraph is gratuitous. Why not stop with the irrefragable proposition that King held that buccal swabbing is a search? Every Justice of the U.S. Supreme Court accepted this premise, and not one maintained that there was one search followed by another search. According to the King majority, "using a buccal swab on the inner tissues of a person's cheek in order to obtain DNA samples is a search" simply because "[v]irtually any intrusion into the human body will work an invasion of cherished personal security that is subject to constitutional scrutiny.” 133 S.Ct. at 1969 (internal quotations, citations, and alteration omitted).  “The ... intrusion [although] negligible ... is still a search as the law defines that term.” Id.

In contrast, whether trawling a database for a DNA match to the DNA profile derived from the sample acquired by the physical intrusion is a “latter search” is an open question. Federal appellate courts have reached different conclusions about it, and the King Court did not discuss it (despite the insistence of King’s counsel at oral argument that DNA analysis and trawling is a search in itself). To be sure, the nature of DNA profiling and trawling is “of central relevance,” King, 133 S.Ct. at 1969—but only on the distinct question of whether the search is reasonable. Id.

Before turning to that question, the Buza II court expressed some sympathy for Justice Scalia’s “piercing” dissent. This position is at odds with Presiding Justice Kline’s description of the Fourth Amendment as always accommodating balancing, since the entire theory of Justice Scalia’s dissent was that the reasonableness of DNA sampling on arrest is not to be determined by weighing individual and state interests, but by a putative categorical rule against certain suspicionless searches

Be that as it may, the Buza II court maintained that King’s “reasons for upholding the Maryland law [are] completely inapplicable to California’s.” That conclusion seems precipitous. There is ample room to debate the value of arrestee sampling and the significance of the differences of the Maryland and California statutes. Indeed, I have written that Justice Kennedy’s reasoning in King is “contrived,” but only because a candid approach to totality balancing (or, preferably in my view, toward creating a new categorical “biometric exception” to the general rule against warrantless searches) has to incorporate the power of DNA to solve cases and deter crimes sooner rather than later (or not at all). 1/

But surely King’s detention-related reasons for DNA testing cannot be dismissed as “completely inapplicable.” For example, Buza II cited the fact that whereas the California law covers all felony arrests, the Maryland law encompasses only arrests for “murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other serious crimes.” King, 133 S.Ct. at 1967. The supposition that DNA from individuals arrested for nonviolent felonies is less likely to provide a link to an unsolved crime hardly means that the DNA is devoid of investigative value. Car theft is not a violent crime or a burglary, but at least some car thieves leave behind traces of DNA while committing more serious crimes

Furthermore, even the more sensible reasoning that arrestee DNA is, on average, less valuable to the state for some felonies than for others does not distinguish the demands the states made on the defendants in King and Buza. Mark Buza, after all, was caught committing arson—surely a serious crime. Why is the Buza court addressing the law as applied to a hypothetical person at another time? Under established Fourth Amendment doctrine, Buza was justifiably arrested for arson. As such, he lacks standing to assert the rights of individuals arrested for much less serious offenses. If it was constitutional to have compelled King to give a DNA sample—which is what the Supreme Court held—why is not equally constitutional to have ordered Buza to give a DNA sample? The answer cannot be that the Supreme Court in King was confronted a serious felony arrest. The court of appeal in Buza likewise was confronted with a serious felony arrest.

Indeed, the Buza opinion itself backs away from the extreme position that King’s reasoning is “completely inapplicable.” The court announces that it is not actually deciding the fundamental question of “whether these differences require a different resolution of the issue from that of the King majority.” It ends its Fourth Amendment analysis with more of a whimper than a bang, dismissing the entire issue: “Our conclusion that the DNA Act is invalid under article I, section 13, of the California Constitution renders it academic whether the Act is also invalid under the Fourth Amendment.” The court is convinced that the differences “significantly alter the weight of the governmental interests and privacy considerations to be balanced in determining constitutionality under the Fourth Amendment,” but it seems less certain that this alteration truly produces a different result.

To reach a different result, the Buza II court performs its own balancing under an unusually demanding balancing test. The next installment comments on this California balancing.

Note

1. David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, Journal of Criminal Law & Criminology, Vol. 104, No. 3, pp. 535-596, May 2014, available at http://ssrn.com/abstract=2376467

Closely related postings

• Buza Reloaded: Court Shifts Ground But Again Invalidates California’s DNA-on-arrest Law, Dec. 7, 2014
• Buza Reloaded: The Fourth Amendment Framework, Dec. 22, 2014
• Buza Reloaded: Fourth Amendment Balancing, Jan. 1, 2015
• Buza Reloaded: California Balancing, Jan. 4, 2015
• The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard, July 17, 2014
• The Impact of Medina's Marginal Balancing on DNA Databases and Sample Retention, July 16, 2014
• Kansas Court of Appeals Rejects Post-King Challenge to DNA Collection on Arrest, June 8, 2014
• What Is Wrong with People v. Lowe? More on DNA-on-Arrest Laws After Maryland v. King, March 24, 2014
• The Ninth Circuit's Minimal Opinion in Haskell v. Harris, March 22, 2014
• Get Serious: The US Department of Justice's Amicus Brief in Haskell v. Harris, December 6, 2013
• The Oral Argument in Maryland v. King — Part IV, March 6, 2013