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U.S. Supreme Court,
Constitutional Law,
California Supreme Court

Dec. 22, 2017

Justices should uphold DNA collection law

People v. Buza provides an opportunity to ensure that fewer people in the state are convicted of crimes they did not commit and can help exonerate others who have been wrongfully convicted.

Of the approximately 100 cases that will be heard by the California Supreme Court next year, one in particular has broad ramifications for every Californian. People v. Buza provides an opportunity to ensure that fewer people in the state are convicted of crimes they did not commit and can help exonerate others who have been wrongfully convicted. Just as important, the state law that now hangs in the balance also has the power to solve many violent crime cold cases, including those committed decades earlier. Oral arguments will be held Jan. 3.

Buza is centered on the collection of DNA to positively identify those who are accused of felonies at the time of their arrest. For more than 100 years, fingerprints have been taken from these arrestees for the purpose of identification and for potential matches to unsolved crimes. The significant difference here is that, unlike fingerprints, DNA cannot be altered or misinterpreted. While some who are arrested will lie about who they are during the booking process, their DNA will always tell the truth.

In 2004, Californians overwhelmingly voted in favor of Proposition 69, which allowed DNA samples to be taken at the time of booking for felony crimes for comparison against evidence from unsolved crimes. In doing so, Californians enacted a sensible law that uses the most advanced identification technology designed to safeguard the accused's privacy, help secure public safety, while serving compelling governmental interests. Similar laws are on the books in 30 states and in federal statutes.

The law has produced real results. Since 2009, when Prop. 69 took effect, through September 2015, there have been 43,451 database "hits" -- positive matches that link the arrestee to other crimes -- and 50,582 additional investigations were aided.

In 2008, the year before implementation of Prop. 69, the California Department of Justice reported an average of 183 database matches per month. By 2014, that number grew to 594. But when a state appellate court ruling against Prop. 69 resulted in a temporary suspension of DNA collection, the average number of monthly matches fell by 200 until the law was reinstated on appeal.

When a cheek swab to obtain DNA is taken at the same time as fingerprints and photographs, exactly what goes into the Combined DNA Index System, the national forensic DNA database? Our DNA does not go into CODIS. A DNA profile goes into CODIS, and that is not the same thing at all. Our DNA contains over 3 billion markers, the DNA profile submitted to CODIS contains only 20 markers, and these 20 were selected because they are non-coding -- they contain no genetic information.

I am so certain the DNA profile contains nothing that could violate my privacy that it is printed on the back of my business card. This is my DNA profile: 16, 18, 15, 15, 11, 12, 10, 10, 9, 11, X, X13, 14, 29, 31.2, 16, 19, 10, 14, 14, 14, 7, 9, 21, 261, 16, 9, 12, 11, 11, 11, 12, 19, 22.2, 14, 18, 11, 17, 18, 20, 17, 18, 20, 17, 24 -- the information that would be entered if I were arrested for a felony.

Americans have become horrified to learn that thousands upon thousands of untested rape kits have been discovered all across the country. Thankfully, many jurisdictions have realized that each one of these rape kits represents a victim who underwent a long and painful examination to provide evidence of the brutal crime perpetrated against them and have begun testing these kits for DNA evidence and uploading that evidence into CODIS.

But this important step is only as powerful when the perpetrator's DNA is also in the database. States with vibrant arrestee DNA testing programs have seen remarkable results. When 11,341 rape kits found in an abandoned warehouse in Detroit were tested and uploaded to CODIS, 817 serial rapists, defined as criminals who have struck 10-15 times without being stopped, were identified. Michigan has a vibrant arrestee DNA testing program, much like that in California.

In Cleveland, the first 4,296 backlogged rape kits uploaded to CODIS netted 3,030 "hits" -- over 70 percent. Ohio has an arrestee DNA testing law very similar to that of California.

Fifty-one of the last 100 matches to rape kits in New Mexico were to arrestee samples. Without an arrestee DNA law, over half of the rapists identified could still be on the streets.

The first arrestee DNA sample was entered into CODIS in 2003. In the past 12 years I have testified in over 40 state legislative committees as an advocate for DNA. In all of this time, in all of the opposing testimony, not one example has been given of how an innocent person was harmed by their DNA profile being uploaded into CODIS. Not one. But I personally know three mothers mourning the brutal rapes and murders of their daughters that could have been prevented by arrestee DNA.

While the debate over People v. Buza is a recent development in California, the U.S. Supreme Court considered this same issue in 2013, when it ruled in favor of DNA collection for felon arrestees in Maryland v. King. The majority wrote, "taking and analyzing a cheek swab of the arrestee's DNA is like fingerprinting."

The question at hand in Buza is whether the express will of Californians will be upheld as they await the California Supreme Court's decision. In my opinion, it must be upheld. Their safety depends on it. Those who are innocent of crimes deserve a process that protects them from mistaken identity and wrongful prosecution. Likewise, the guilty should be brought to justice for the crimes they are positively linked to through solid and undeniable evidence provided by DNA.


Ben Armistead

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