The suspect was glib. Confident. He voluntarily met with police who were investigating a 2006 rape case in Maryland.
Glenn Raynor told investigators that he had nothing to do with the rape. But he refused to submit a DNA sample.
That wasn’t a problem for the police. Humans shed about 30,000 skin cells every hour. And since Raynor wore a short-sleeve shirt during the interview, the detectives who interrogated him were confident they could recover his DNA from the armrests on the chair he sat in and test it.
Sure enough, the DNA sample they submitted for testing after swabbing the armrests matched DNA collected at the crime scene. Based on that evidence, Raynor was sentenced to life in prison.
Raynor appealed. Even though he had not been arrested or accused of the crime before the investigators secretly collected his DNA, the Maryland Supreme Court upheld the conviction. In 2015, the US Supreme Court allowed the conviction to stand.
The “good guys” won in this case. Raynor is a serial rapist. He was found guilty of two rapes in which he broke into his victims’ homes, suffocated and blindfolded them, and then raped them. It’s hard to argue that society isn’t safer with a predator like Raynor locked away.
But at what cost? As a dissenting judge from the Maryland Supreme Court wrote:
A person desiring to keep her DNA profile private must conduct her public affairs in a hermetically sealed hazmat suit… The Majority’s holding means that a person can no longer vote, participate in a jury, or obtain a driver's license without opening up his genetic material for state collection and codification.
Your DNA is the blueprint to who you are. It’s the source code to you as a human. And while DNA profiling is sometimes compared to fingerprinting, it reveals far more information than a mere fingerprint. What’s more, your DNA can be collected an astonishing number of ways: from a cigarette butt, a soda can, a coffee cup, among others.
The growing use of DNA analysis to solve crimes is an example of what I call surveillance creep. DNA profiling was invented in the early 1980s and was initially used to establish paternity in child-support cases. But in 1987, a court in Florida convicted a criminal defendant of rape based on DNA evidence.
Based on this success, prosecutors quickly began using DNA evidence to solve previously unsolvable cases. One prosecutor claimed there was only a 1-in-10-billion chance that two people would have the same DNA fragments. But defense attorneys contested DNA testing, objecting to both their reliability and the fact that DNA samples were taken without a suspect’s consent.
Despite these issues, in 1994, two federal laws came into effect that dramatically expanded DNA testing. The DNA Identification Act of 1994 set up the FBI's Combined DNA Index System (CODIS), a forensic DNA database to track sex offenders. A second law set uniform standards for forensic DNA testing.
In 2006, Congress amended the Violence Against Women Act to authorize federal officials to collect DNA samples from individuals who are arrested. The states rapidly followed suit to authorize police to routinely collect DNA samples from all criminal suspects.
In 2008, President George W. Bush signed into law legislation that authorizes los federales to screen the DNA of all babies born in the US. The official purpose of the database was for genetic research, but it can be used for any purpose the government dictates. Meanwhile, the FBI quietly expanded the permissible use of the CODIS database to investigate many other types of crime, not just sex offenses.
In 2017, in a rare bipartisan initiative, Congress enacted the Rapid DNA Act. The law will greatly expand the use of Rapid DNA Analysis, which can match a DNA profile against the CODIS database in less than 90 minutes. The devices used for this purpose require minimal training and are inexpensive to operate. As the “magic boxes” used for Rapid DNA Analysis are rolled out across the country, I foresee that police will feel empowered to require DNA profiles not only from actual criminal suspects but from anyone merely deemed suspicious. These DNA profiles will then remain in a centralized database forever.
What’s more, contrary to popular belief, DNA profiling isn’t 100% accurate. Even when it is, the growing use of it raises the real possibility that false DNA evidence could be deliberately planted at crime scenes by criminals or even police.
For instance, for decades police in California unsuccessfully sought the identity of a man who murdered and raped dozens of women in the 1970s and 1980s, the so-called “Golden State Killer.” But they started closing in on the suspect through DNA profiling and eventually arrested him. They obtained that person’s DNA profile from a popular genetic website to which anyone can submit their DNA to learn more about their ancestry.
Researchers in Israel have demonstrated that it’s even possible to fabricate DNA evidence. They showed that someone with access to a DNA profile can assemble both blood and saliva samples containing that DNA. The lead researcher in the study likened the results to being able to “just engineer a crime scene.”
DNA is so easily transferred between individuals that you could have traces of DNA from many different people on your skin or clothing. If your DNA is discovered at a crime scene, it’s possible it was left by the person who actually committed the crime.
Imagine that you want to commit a crime but implicate someone else as the suspect. You meet that person and take an item they’ve touched. A few hours later, you commit the crime. You leave the incriminating item with their fingerprints and DNA residue on it at the scene.
If you have access to a DNA database, it’s even easier. You just use the techniques the Israeli researchers wrote about to fabricate DNA.
Case closed…you’ve successfully made someone else the most likely criminal suspect. And this strategy could be used not only by criminals but by a cop with a grudge against you.
Will juries factor in the possibility of an engineered crime scene when they are considering the guilt or innocence of someone implicated by a DNA match? And will courts place any restrictions on wholesale DNA collection?
Only time will tell. In the meantime, if you want to avoid having your DNA profile retrieved without your consent – possibly by a police official wanting to engineer a crime scene – don’t sign up for services like 23andMe or AncestryDNA. And if you want to avoid distributing your DNA everywhere you go, maybe it’s time to invest in a good hazmat suit.