Earlier I wrote about the ability to find you from a DNA sample by noting it’s a near match with one of your relatives. This is a concern because it means that if relatives of yours enter the DNA databases, voluntarily or otherwise, it effectively means you’re in them too.
On a recent 60 minutes on the topic, they told the story of Darryl Hunt, who had been jailed for rape and murder. It wasn’t clear to me why, but this was done even though his blood type did not match the rapist’s DNA. Even after DNA testing improved and the non-match was better confirmed, he was still kept in jail, because he was believed to be the murderer, if not the rapist, ie. an accomplice.
Later, they did a DNA search on the rapist’s DNA and found his brother in the database, who had been entered due to a minor parole violation. So they interviewed the brothers of the near-match and found Willard Brown, who turned out to be the rapist. Once they could see he was not an associate of the rapist, Hunt was freed after 19 years of false imprisonment.
The piece also told the story of another rapist, who had raped scores of women and stolen their shoes as souvenirs, but had become a cold case. He was caught because his sister was in a DNA database due to a DUI.
Now much of our privacy law is based on having your own private data not seized and used against you without probable cause. It’s easy to answer the case of the shoe rapist. There are a wide variety of superior surveillance tools we could allow the police to use, and they would help them catch criminals, and in many cases thus prevent those criminals from committing future crimes. But we don’t give the police those tools, deliberately, because we don’t want a world where the government has such immense surveillance power. And a large part of that goal is protecting the innocent. Our rules that allow criminals to walk free when police do improver evidence gathering and surveillance to catch them are there in part to keep the police from use of those powers on the innocent.
But the innocent man who was freed presents a more interesting challenge. Can we help him, without enabling 1984? In considering this question, I asked, “What if we allowed DNA near matches to be used only when they would prove innocence?” Of course, in Hunt’s case, and many others, the innocence is proven by finding the real guilty party.
So what if, in such cases, it was ruled that while they might find the guilty party, they could not prosecute him or her? And further, that any other evidence learned as a result was considered Fruit of the poisonous tree? That’s a pretty tough rule to follow, since once the police know who the real perpetrator is, this will inspire them to find other sorts of evidence that they would not have thought to look for before, and they will find ways to argue that these were discovered independently. It might be necessary to put on a stronger standard, and just give immunity to the real perpetrator if sufficient time has passed since the crime to declare the case to be cold.
Setting out the right doctrine would be difficult. But if it frees innocents, might it be worth it?