Stanford Law Review: Vol. 63, Iss. 4 - Apr. 2011

Stanford Law Review

April 2011

Stanford Law Review

Volume 63, Issue 4

April 2011

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Cataloging for Volume 63, Issue 4 – April 2011:

ISBN: 1610270681 (ePub)

ISBN-13: 9781610270687 (ePub)

CONTENTS

[Volume 63, Issue 4, April 2011]

ARTICLES

FORTUITY AND FORENSIC FAMILIAL IDENTIFICATION

By Natalie Ram

(63 STAN. L. REV. 751)

GUNS, FRUITS, DRUGS, AND DOCUMENTS: A CRIMINAL DEFENSE LAWYER’S RESPONSIBILITY FOR REAL EVIDENCE

By Stephen Gillers

(63 STAN. L. REV. 813)

FIXING UNFAIR CONTRACTS

By Omri Ben-Shahar

(63 STAN. L. REV. 869)

NOTES

SHOULD THE SUPREME COURT STOP INVITING AMICI CURIAE TO DEFEND ABANDONED LOWER COURT DECISIONS?

By Brian P. Goldman

(63 STAN. L. REV. 907)

A NEW APPROACH TO NINETEENTH-CENTURY RELIGIOUS EXEMPTION CASES

By Wesley J. Campbell

(63 STAN. L. REV. 973)

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EDITORIAL BOARD

VOLUME 63

MASHA GODINA HANSFORD

President

SHELTON L. ABRAMSON

JANINE ANN WETZEL

Executive Editors

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LOREN A. CRARY

WILL EDELMAN

MATTHEW XAVIER ETCHEMENDY

MORGAN A. GALLAND

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ERIN MOHAN

JESSICA I. ROTHSCHILD

THOMAS M. SPAHN

Articles Editors

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PETER J. RICHMOND

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PETER SQUERI

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KATHERINE TRAVERSO

Business Manager

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The Stanford University School of Law

OFFICERS OF ADMINISTRATION

John Hennessy, B.E., M.S., Ph.D., President of the University

John Etchemendy, B.A., M.A., Ph.D., Provost of the University

Larry D. Kramer, A.B., J.D., Dean and Richard E. Lang Professor of Law and Professor (by courtesy) of History

Mark G. Kelman, A.B., J.D., James C. Gaither Professor of Law and Vice Dean

Deborah R. Hensler, A.B., Ph.D., Judge John W. Ford Professor of Dispute Resolution and Associate Dean for Graduate Studies

Lawrence C. Marshall, B.A., J.D., Professor of Law, David and Stephanie Mills Director of Clinical Education, and Associate Dean for Public Interest and Clinical Education

Jane Schacter, A.B., J.D., William Nelson Cromwell Professor of Law and Associate Dean for Curriculum

F. Daniel Siciliano, B.A., J.D., Senior Lecturer in Law and Associate Dean for Executive Education and Special Programs

Frank F. Brucato, B.A., Senior Associate Dean for Administration and Chief Financial Officer

Diane T. Chin, B.A., J.D., Lecturer in Law and Associate Dean for Public Service and Public Interest Law

Faye Deal, A.B., Associate Dean for Admissions and Financial Aid

Catherine Glaze, A.B., J.D., Associate Dean for Student Affairs

Sabrina Johnson, B.A., Associate Dean for Communications and Public Relations

Susan C. Robinson, B.A., J.D., Associate Dean for Career Services

Scott Showalter, B.A., Associate Dean for External Relations

FACULTY EMERITI

Barbara Allen Babcock, A.B., LL.B., LL.D. (hon.), Judge John Crown Professor of Law, Emerita

Paul Brest, A.B., LL.B., LL.D. (hon.), Professor of Law, Emeritus, and former Dean

William Cohen, B.A., LL.B., C. Wendell and Edith M. Carlsmith Professor of Law, Emeritus

Lance E. Dickson, B.A., LL.B., B.Com., M.L.S., Professor of Law, Emeritus, and former Director of Robert Crown Law Library

Marc A. Franklin, A.B., LL.B., Frederick I. Richman Professor of Law, Emeritus

William B. Gould IV, A.B., LL.B., LL.D. (hon.), Charles A. Beardsley Professor of Law, Emeritus

Thomas C. Grey, B.A., B.A., LL.B., LL.D. (hon.), Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law, Emeritus

Thomas C. Heller, A.B., LL.B., Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies, Emeritus

Miguel A. Méndez, A.A., B.A., J.D., Adelbert H. Sweet Professor of Law, Emeritus

John Henry Merryman, B.S., M.S., J.D., LL.M., J.S.D., Dr. h.c., Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law, Emeritus, and Affiliated Professor of Art, Emeritus

David Rosenhan, A.B., M.A., Ph.D., Professor of Law and Psychology, Emeritus

Kenneth E. Scott, A.B., M.A., LL.B., Ralph M. Parsons Professor of Law and Business, Emeritus

Michael S. Wald, A.B., M.A., LL.B., Jackson Eli Reynolds Professor of Law, Emeritus

Howard R. Williams, A.B., LL.B., Robert E. Paradise Professor of Natural Resources Law, Emeritus

PROFESSORS

Janet Cooper Alexander, B.A., M.A., J.D., Frederick I. Richman Professor of Law

Joseph M. Bankman, A.B., J.D., Ralph M. Parsons Professor of Law and Business

R. Richard Banks, B.A., M.A., J.D., Jackson Eli Reynolds Professor of Law

Juliet M. Brodie, A.B., J.D., Professor of Law

Joshua Cohen, B.A., M.A., Ph.D., Professor of Political Science, Philosophy, and Law

G. Marcus Cole, B.S., J.D., Wm. Benjamin Scott and Luna M. Scott Professor of Law

Richard Craswell, B.A., J.D., William F. Baxter-Visa International Professor of Law

Mariano-Florentino Cuéllar, A.B., A.M., J.D., Ph.D., Professor of Law and Deane F. Johnson Faculty Scholar

Robert M. Daines, B.S., B.A., J.D., Pritzker Professor of Law and Business and Professor (by courtesy) of Finance

Michele Landis Dauber, B.S.W., J.D., Ph.D., Professor of Law, Bernard D. Bergreen Faculty Scholar, and Professor (by courtesy) of Sociology

John J. Donohue III, B.A., J.D., Ph.D., C. Wendell and Edith M. Carlsmith Professor of Law

David Freeman Engstrom, A.B., M.Sc., J.D., Ph.D., Assistant Professor of Law

Nora Freeman Engstrom, B.A., J.D., Assistant Professor of Law

George Fisher, A.B., J.D., Judge John Crown Professor of Law

Jeffrey L. Fisher, A.B., J.D., Associate Professor of Law

Richard Thompson Ford, A.B., J.D., George E. Osborne Professor of Law

Barbara H. Fried, B.A., M.A., J.D., William W. and Gertrude H. Saunders Professor of Law

Lawrence M. Friedman, A.B., J.D., LL.M., LL.D. (hon.), Marion Rice Kirkwood Professor of Law, Professor (by courtesy) of History, and Professor (by courtesy) of Political Science

Ronald J. Gilson, A.B., J.D., Charles J. Meyers Professor of Law and Business

Paul Goldstein, A.B., LL.B., Stella W. and Ira S. Lillick Professor of Law

Henry T. Greely, A.B., J.D., Deane F. and Kate Edelman Johnson Professor of Law and Professor (by courtesy) of Genetics

Joseph A. Grundfest, B.A., M.Sc., J.D., W.A. Franke Professor of Law and Business

Deborah R. Hensler, A.B., Ph.D., Judge John W. Ford Professor of Dispute Resolution and Associate Dean for Graduate Studies

Daniel E. Ho, B.A., A.M., Ph.D., J.D., Professor of Law and Robert E. Paradise Faculty Fellow for Excellence in Teaching and Research

Pamela S. Karlan, B.A., M.A., J.D., Kenneth and Harle Montgomery Professor of Public Interest Law

Mark G. Kelman, A.B., J.D., James C. Gaither Professor of Law and Vice Dean

Amalia D. Kessler, A.B., M.A., J.D., Ph.D., Professor of Law, Helen L. Crocker Faculty Scholar, and Professor (by courtesy) of History

Daniel P. Kessler, B.A., J.D., Ph.D., Professor of Law, Senior Fellow, Hoover Institution, and Professor of Health Research and Policy (by courtesy) of School of Medicine

Michael Klausner, B.A., M.A., J.D., Nancy and Charles Munger Professor of Business and Professor of Law

William S. Koski, B.B.A., J.D., Ph.D., Eric and Nancy Wright Professor of Clinical Education and Professor (by courtesy) of Education

Larry D. Kramer, A.B., J.D., Dean and Richard E. Lang Professor of Law and Professor (by courtesy) of History

Mark A. Lemley, B.A, J.D., William H. Neukom Professor of Law

Lawrence C. Marshall, B.A., J.D., Professor of Law, David and Stephanie Mills Director of Clinical Education, and Associate Dean for Public Interest and Clinical Education

Jenny S. Martinez, B.A., J.D., Professor of Law and Justin M. Roach, Jr. Faculty Scholar

Michael W. McConnell, B.A., J.D., Richard and Frances Mallery Professor of Law, Director, Stanford Constitutional Law Center, and Senior Fellow, Hoover Institution

Jay Mitchell, B.A., J.D., Associate Professor of Law and Director, Organizations and Transactions Clinic

Alison D. Morantz, A.B., M.Sc., J.D., Ph.D., Associate Professor of Law and John A. Wilson Distinguished Faculty Scholar

Joan Petersilia, B.A., M.A., Ph.D., Adelbert H. Sweet Professor of Law

A. Mitchell Polinsky, A.B., Ph.D., M.S.L., Josephine Scott Crocker Professor of Law and Economics and Professor (by courtesy) of Economics

Robert L. Rabin, B.S., J.D., Ph.D., A. Calder Mackay Professor of Law

Deborah L. Rhode, B.A., J.D., Ernest W. McFarland Professor of Law

Jane Schacter, A.B., J.D., William Nelson Cromwell Professor of Law and Associate Dean for Curriculum

Deborah A. Sivas, A.B., M.S., J.D., Luke W. Cole Professor of Environmental Law

Norman W. Spaulding, B.A., J.D., Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law

Jayashri Srikantiah, B.S., J.D., Associate Professor of Law

James Frank Strnad II, A.B., J.D., Ph.D., Charles A. Beardsley Professor of Law

Kathleen M. Sullivan, B.A., B.A., J.D., Stanley Morrison Professor of Law and former Dean

Alan O. Sykes, B.A., J.D., Ph.D., James and Patricia Kowal Professor of Law

Barton H. Thompson, Jr., A.B., J.D., M.B.A., Robert E. Paradise Professor of Natural Resources Law, Director, Woods Institute for the Environment, and Senior Fellow (by courtesy), Freeman Spogli Institute for International Studies

Barbara van Schewick, Ph.D., Associate Professor of Law

Michael Wara, B.A., Ph.D., J.D., Assistant Professor of Law and Research Fellow, Freeman Spogli Institute for International Studies

Robert Weisberg, A.B., A.M., Ph.D., J.D., Edwin E. Huddleson, Jr. Professor of Law

SENIOR LECTURERS

Margaret R. Caldwell, B.S., J.D., Senior Lecturer in Law and Executive Director, Center for Oceans Solutions, Woods Institute for the Environment

Janet Martinez, B.S., J.D., M.P.A., Senior Lecturer in Law

David W. Mills, B.A., J.D., Senior Lecturer in Law

F. Daniel Siciliano, B.A., J.D., Senior Lecturer in Law and Associate Dean for Executive Education and Special Programs

Allen S. Weiner, A.B., J.D., Senior Lecturer in Law

VISITING PROFESSORS & AFFILIATED FACULTY

Michael Asimow, B.S., J.D., Visiting Professor of Law

Kyle Bagwell, B.S., Ph.D., Affiliated Faculty

Alexandria Boehm, M.S., Ph.D., Affiliated Faculty

Jared R. Curhan, A.B., A.M., Ph.D., Visiting Associate Professor of Law

Nita Farahany, M.A., J.D., Ph.D., Visiting Associate Professor of Law

Siegfried Fina, J.D., J.S.D., Visiting Associate Professor of Law

Pratheepan Gulasekaram, J.D., Visiting Assistant Professor of Law

Tamar Herzog, Ph.D., Affiliated Faculty

David Holloway, B.A., M.A., Ph.D., Affiliated Faculty

Daniel Hulsebosch, J.D., Ph.D., Visiting Professor of Law

Ron Kasznik, M.S., Ph.D., Affiliated Faculty

Chimene Keitner, M.P., D.P., J.D., Visiting Associate Professor of Law

Brian Lowery, B.S., M.A., Ph.D., Affiliated Faculty

Mark McKenna, J.D., Visiting Associate Professor of Law

Bernadette Meyler, J.D., Ph.D., Visiting Professor of Law

David Patton, J.D., Visiting Assistant Professor of Law

Rogelio Perez-Perdomo, Ph.D., Visiting Professor of Law

Paul C. Pfleiderer, B.A., M.Phil., Ph.D., Professor (by courtesy) of Law

Madhav Rajan, B.A., M.S., M.B.A., Ph.D., Professor (by courtesy) of Law

Jack Rakove, A.B., Ph.D., Professor (by courtesy) of Law

Nicholas Quinn Rosenkranz, B.A., J.D., Visiting Associate Professor of Law

Lee D. Ross, B.A., Ph.D., Affiliated Faculty

Rebecca Sandefur, B.A., M.A., Ph.D., Assistant Professor (by courtesy) of Law

William Simon, A.B., J.D., Visiting Professor of Law

Helen Stacy, LL.B., Ph.D., Affiliated Faculty

Frank A. Wolak, B.A., M.S., Ph.D., Affiliated Faculty

Jonathan Zittrain, B.S., M.P.A., J.D., Visiting Professor of Law

LECTURERS AND TEACHING FELLOWS

Alvin Attles, J.D.

Dmitry Barn, J.D.

Daniel Barton, J.D.

Marilyn M. Bautista, J.D.

Jeanine Becker, J.D.

Samuel Bray, J.D.

Viola Canales, J.D.

Diane T. Chin, J.D.

Daniel Cooperman, J.D., M.B.A.

John Crawford, M.A., J.D.

Elizabeth de la Vega, J.D.

Lothar Determann, J.D.

Michael Dickstein, J.D.

Bonnie Eskenazi, J.D.

Anthony Falzone, J.D.

Randee G. Fenner, J.D.

Bertram Fields, LL.B.

Jeremy Fogel, J.D.

David Forst, J.D.

Laurence Franklin, J.D., M.B.A., C.P.A.

Michelle Galloway, J.D.

Mei Gechlik, LL.B., LL.M., J.S.D., J.S.M., M.B.A.

Thomas C. Goldstein, J.D.

Richard Goldstone, LL.B.

Jonathan D. Greenberg, J.D.

Timothy H. Hallahan, J.D.

Brad Handler, J.D.

Keith Hennessey, M.P.P.

Brooke Heymach, J.D.

Amy Howe, M.A., J.D.

John Huhs, J.D., M.B.A.

Ivan Humphreys, J.D.

Erik Jensen, J.D.

David Johnson, J.D., J.S.M.

Danielle Jones, J.D.

Stephen Juelsgaard, D.V.M., J.D.

Kathleen Kelly, J.D.

Julie Matlof Kennedy, J.D.

Jason Kipnis, J.D.

Suzanne McKechnie Klahr, J.D.

Jeffrey W. Kobrick, J.D.

Charles Koob, J.D.

Phillip Levine, J.D.

Donald Lewis, J.D., LL.M.

Galit Lipa, J.D., LL.M.

J. Paul Lomio, J.D., LL.M., M.L.I.S.

Brian Love, J.D.

Steven Lucas, J.D.

Beth McLellan, J.D.

Jeanne Merino, J.D.

Roberta Morris, J.D., Ph.D.

Linda Netsch, J.D.

Thomas J. Nolan, J.D.

Jessica Notini, J.D.

Ralph Pais, J.D.

Moria Paz, J.S.D., LL.M.

B. Howard Pearson, J.D.

Lisa M. Pearson, J.D., J.S.M.

Pamela Phan, J.D.

Joe Pitts III, J.D.

Duane Quaini, J.D.

Stephan Ray, J.D.

Claudio Rechden, LL.B., LL.M.

Michael Romano, J.D.

Andrew Roper, M.A., Ph.D.

Stephen Rosenbaum, J.D.

Matthew Rossiter, J.D.

Thomas Rubin, J.D.

Kevin Russell, J.D.

Richard Salgado, J.D.

Ticien Sassoubre, Ph.D.

Rachelle Silverberg, J.D.

Smita Singh, Ph.D.

Stephanie E. Smith, J.D.

Steven Smith, M.P., LL.B., J.D.

Dee Smythe, LL.B., J.S.D., J.S.M

Sergio Stone, J.D., M.L.I.S.

Kimberly Summe, M.S., M.A., LL.B., J.D.

Stuart Taylor Jr., J.D.

Peter Thiel, J.D.

Jean Thomas, M.A., J.D., LL.M., J.S.D.

Dan Torres, J.D.

Erika V. Wayne, J.D., M.S.

Dana Weintraub, M.D.

Robert Wexler, J.D.

Katherine Wright, J.D.

PROFESSIONAL LIBRARY STAFF

Annie Chen, B.A., M.L.S.

Alba Holgado, B.A.

J. Paul Lomio, B.A., J.D., LL.M., M.L.I.S.

Rachael Samberg, J.D.

Sergio Stone, J.D., M.L.I.S.

Erika V. Wayne, A.B., J.D., M.S.

George D. Wilson, B.A., J.D., M.L.I.S.

Sarah Wilson, B.A., M.L.I.S.

Kathleen M. Winzer, B.A., M.L.S.

Naheed Zaheer, B.S., M.S., M.L.I.S.

ARTICLES

FORTUITY AND FORENSIC FAMILIAL IDENTIFICATION

Natalie Ram*

(cite as 63 STAN. L. REV. 751)

On July 7, 2010, Los Angeles police announced the arrest of a suspect in the Grim Sleeper murders, so called because of a decade-long hiatus in killings. The break in the case came when California searched its state DNA database for a genetic profile similar, but not identical, to the killer’s. DNA is inherited in specific and predictable ways, so a partial match might indicate that a close genetic relative of the matching offender was the Grim Sleeper. California’s apparent success in the Grim Sleeper case has intensified interest in policymaking for partial matching. To date, however, little information about existing state policies—and the wisdom of those policies—has been available. This Article fills two significant gaps in the literature about partial matching. First, it reports the results of a survey of state policies governing partial matching—the most complete survey of its kind. Second, it dismantles a distinction drawn by more than a dozen states between partial matches that arise fortuitously during the course of routine database searches and partial matches that are deliberately sought, exposing this distinction as harmful and illogical. In examining this feature of state policies, this Article is more immediately relevant to determining how states ought to address the ever-expanding scope of uses to which DNA databases may be put.

INTRODUCTION

I. A PRIMER ON DNA FORENSICS

A.  Some Scientific Background

B.  Brief History

C.  Methods of Partial Matching

II. EXISTING STATE POLICIES FOR REPORTING PARTIAL MATCHES

A.  Survey Methodology

B.  Survey Results—Policies Vary Widely

1.  Distinguishing fortuitous and deliberate partial matches

a.  States permitting fortuitous but not deliberate partial matches

b.  States permitting both fortuitous and deliberate partial matches—but often imposing different restrictions for each

c.  States prohibiting deliberate partial matches, but not identifying a policy for fortuitous partial matches

d.  States prohibiting both fortuitous and deliberate partial matches

2.  Unwritten policies

3.  Additional requirements

III. DISMANTLING THE DISTINCTION BETWEEN FORTUITOUS AND DELIBERATE PARTIAL MATCHING

A.  The Fortuitous/Deliberate Distinction Imposes Structural Costs

1.  Perverse incentives for laboratory personnel

2.  Perverse incentives for policymakers

B.  Arguments Favoring and Opposing Partial Matching Apply Broadly

1.  Arguments favoring partial matching

2.  Arguments opposing partial matching

C.  Arguments Favoring a Fortuitous/Deliberate Distinction Are Insufficient

1.  The key is intent

2.  Partial match quality

3.  The direct costs of deliberate partial matching

4.  The opportunity costs of partial matching

5.  Institutional role

6.  The near-perfect match

CONCLUSION

APPENDIX A

APPENDIX B

INTRODUCTION

On July 7, 2010, Los Angeles police announced that they had cracked a series of murders spanning decades,¹ arresting a suspect in the Grim Sleeper murders—so called because of an apparent hiatus in killings lasting a dozen years.² Although the serial killer had left DNA behind at several crime scenes, that DNA was not identical to any of several million DNA profiles of past offenders in the National DNA Index System.³ The break in the case came when California searched its state DNA database for a genetic profile similar—but not identical—to the killer’s.⁴ Because DNA is inherited in specific and predictable ways, a partial match might indicate that a close genetic relative of the matching offender was the Grim Sleeper.

Partial matches may be uncovered in two ways: fortuitously or deliberately. Fortuitous partial matches are those discovered during routine database searches intended to identify exact matches. Deliberate partial matches are those uncovered through an intentional search of a DNA database for such matches. The intentional search for matches indicating possible familial involvement is frequently termed familial searching. This Article adopts the terminology of deliberate partial matching, however, to emphasize that the information uncovered by both fortuitous and deliberate means is functionally similar. Both draw investigative attention to offenders’ kin who would not, absent their relation to a databased offender, be subject to genetic identification.

California first embraced partial matching in April 2008, when its Attorney General issued a well-publicized memorandum permitting the state lab not only to inform law enforcement investigators about partial matches fortuitously uncovered during routine database searches, but also to search deliberately for such matches.⁵ The state developed special software for better identifying true familial relationships,⁶ and set its sights on the Grim Sleeper as its first major target.⁷ But initial efforts to identify a possible relative were unsuccessful.⁸

In April 2010, a new round of database searches produced several hundred partial matches—potential relatives, but likely more false leads.⁹ To weed out these false starts, the state lab analyzed the Y chromosome of two hundred of the partial match results, comparing that data with the Y chromosome profile of the Grim Sleeper.¹⁰ Because sons inherit their Y chromosomes from their fathers in full, fathers, sons, and patrilineal brothers all share the same profile. Of the two hundred potential relatives, one matched perfectly.¹¹ The police tailed the databased offender’s father, Lonnie David Franklin, Jr. When Franklin threw out a slice of pizza, investigators nabbed it for testing.¹² Human DNA left on the pizza matched the Grim Sleeper DNA left at crime scenes.¹³ To great fanfare, L.A. police arrested Franklin as the Grim Sleeper.¹⁴

The Grim Sleeper case highlights multiple controversies about the collection and use of DNA to crack cases.¹⁵ First, California used a partial DNA match in its database to target a non-databased relative for investigation. Second, the state police obtained Franklin’s DNA surreptitiously by collecting it from a discarded slice of pizza—no warrant required. Both of these issues pose thorny questions about what sort of privacy interest, if any, individuals can expect to have in their genetic information. Courts have routinely found that people have an expectation of privacy in their DNA.¹⁶ But we shed DNA constantly, and as the Grim Sleeper case demonstrates, our relatives’ DNA can be used to identify us.

This Article advances the conversation about partial matching—and about the use of DNA in criminal investigations more broadly—both by identifying the range and scope of state policies governing partial matches and by exposing the distinction that several states have drawn between fortuitous and deliberate partial matching as empty and dangerous. News reports about the Grim Sleeper explained that only California and Colorado have embraced deliberate searches for partial matches.¹⁷ To be sure, in October 2009, Colorado announced that it would permit disclosure to investigators of both fortuitously and deliberately uncovered partial matches, and that it was employing specialized software to enable better familial identification.¹⁸ But such reports do not come close to providing an accurate account of how states make use of partial matches in forensic investigation. In addition to California and Colorado, at least two other states presently permit both fortuitous and deliberate partial matching.¹⁹ Only two jurisdictions, Maryland and the District of Columbia, have enacted statutes prohibiting deliberate partial match searches.²⁰ At least fourteen states, meanwhile, have permitted the investigative use of a fortuitously discovered partial DNA match, while simultaneously precluding, often explicitly, the deliberate search for such matches.²¹

This Article analyzes the distinction that these states have drawn between fortuitously and deliberately discovered partial matches, arguing that it imposes significant structural and transparency costs and yet is supported by neither logic nor principle. States should either permit both forms of partial match investigation, as California and Colorado have done, or permit neither.

This Article makes two distinct contributions to the growing literature on partial matching in forensic investigation. First, after Part I provides a primer on the science and history of forensic genetic identification, Part II sets forth a survey of state policies regarding partial matches. Reliable data about the range and scope of state policies governing partial matching have been hard to come by. This survey is the most complete dataset available on this issue.

Second, in Part III, this Article dismantles the distinction between fortuitous and deliberate partial matches and contends that states and the federal government cannot justifiably distinguish between them. The existing literature has thus far examined almost exclusively the more general question of whether the use of partial matches ought to be permissible at all.²² None of this literature, however, has focused on actual state policies or on the wisdom of the distinction that so many states have drawn between fortuitous and deliberate matches. This Article does both, and so it is more immediately relevant to determining how states ought to address the ever-expanding scope of uses to which DNA databases may be put.

I. A PRIMER ON DNA FORENSICS

A basic understanding of the science and history of DNA matching is necessary for an informed exploration and critique of state policies governing partial matching. Subpart A describes the science of genetic identification. Subpart B then provides a brief overview of its history in the United States. Finally, Subpart C describes two methods by which partial matches may be uncovered during a database search—fortuitously or deliberately. Readers already familiar with these topics may wish to proceed directly to Part II.

A.  Some Scientific Background

The average adult human body has between fifty trillion and one hundred trillion cells.²³ Nearly all of these cells have a nucleus that contains DNA, the genetic material that tells the cells how to reproduce, differentiate into different cell types, and grow. Each DNA sequence is comprised of a series of just four different bases: adenine (A), cytosine (C), guanine (G), or thymine (T).²⁴ In the ladder-like structure of DNA’s double helix, each rung is a pair of bases matched in set patterns: As with Ts; Gs with Cs.²⁵ The sequence of these bases differs between individuals, encoding the information that makes each person, except identical twins, genetically different.

In humans, DNA is organized into twenty-three pairs of chromosomes. In each generation, different portions of the DNA sequence in the chromosomes from each parent are passed on to each child.²⁶ As a result, each child is unique, though she shares some parts of her sequence with her parents and also with her siblings, who likewise inherited parental DNA—but in a different mix. The total DNA sequence is what we mean when we refer to an individual’s genome. A human genome contains roughly 3.2 billion base pairs of DNA.²⁷

Current research indicates that, although the genetic makeup of even unrelated individuals differs only by hundredths of a percent,²⁸ this still represents a very large number of base differences between each person. In fact, stretches of DNA, called microsatellites, contain a large amount of this variability and can be used to distinguish one individual from another.²⁹ At microsatellites, the genetic sequence often contains variable numbers of repeats of short sequences of base pairs.³⁰ Variations in the lengths of these short tandem repeats (STRs) are what analysts currently use to examine an individual’s genetic profile at a given genomic location (or locus; plural loci).³¹

In the United States, the most common form of forensic DNA typing examines thirteen STR loci in the genome.³² These loci are spread across the twenty-two nonsex chromosomes inherited equally in males and females.³³ Each locus reveals two variants of repeat lengths, or alleles, one inherited from each genetic parent. These thirteen loci thus yield a total of twenty-six data points.³⁴ In addition, analysts may also look at STRs on the Y chromosome (Y-STRs). The Y chromosome appears only in males, however, and is inherited from father to son in full. As a result, a Y-STR profile is not specific to an individual, although it may identify a particular family or male line.

An individual inherits fifty percent of her genetic material from each parent and is expected to have roughly fifty percent of her genes in common with any full sibling.³⁵ As a result, there is a significant probability that such close genetic relatives will also share a significant number of STR alleles. Children will share, at minimum, thirteen alleles with each parent.³⁶ According to one estimate, siblings on average share 16.7 alleles.³⁷ By contrast, two unrelated, randomly selected individuals will have substantially fewer alleles in common—on average, 8.59.³⁸

The usefulness of shared alleles in determining relatedness is a function of more than simply the number of shared alleles. Rather, close genetic relatives have similar genetic motifs,³⁹ and so patterns of similarity among the alleles are significant. The commonness of the particular allele in the population at large is also instructive. Where two DNA samples share alleles that appear infrequently, it is a stronger indication of relatedness than allele sharing alone.⁴⁰

Importantly, the STRs that American forensics labs typically examine are located in noncoding portions of the genome—DNA that does not encode for proteins and has no as-yet-discernable function.⁴¹ Some states explicitly prohibit analysis that could predict genetic disease or predisposition to illness,⁴² and so the distinction between coding and noncoding regions of the genome would appear significant. Yet, new research suggests that noncoding DNA is not merely junk. Consider, for instance, a study examining just one percent of the human genome.⁴³ Although only two percent of a genome consists of protein-coding DNA, eighty percent of the bases studied showed signs of being expressed.⁴⁴ And while biologists have often assumed that genes are compact, the new research indicates that genes can be sprawling, with far-flung protein-coding and regulatory regions that overlap with other genes.⁴⁵ These findings suggest that a multidimensional network regulates gene expression.⁴⁶ They also suggest that the distinction between genes and noncoding DNA is more complex than previously believed. Policymakers may need to exercise more caution in claiming that the DNA examined for forensic investigation has no other meaning.

Finally, in addition to nuclear DNA, cells also contain small amounts of genetic material in organelles outside the nucleus called mitochondria.⁴⁷ In humans, mitochondria are exclusively inherited from the mother. Therefore, individuals descended from the same mother will share the same mitochondrial DNA sequence.⁴⁸ Mitochondrial DNA (mtDNA) is identifying to families, not to specific individuals. It is nonetheless useful because many copies of it exist in any given cell. While nuclear DNA contains much more information, there are only two copies of it in each cell (one maternal and one paternal), and each of these copies is independently significant for identification purposes.⁴⁹ Mitochondrial DNA, by contrast, contains only a bit of useful information, but that information appears in hundreds of copies per cell. Although mtDNA can therefore often be recovered for analysis even when nuclear DNA has degraded,⁵⁰ its analysis produces less specific results, and so mtDNA testing is not routine.⁵¹

B.  Brief History

In 1989, Virginia established the first forensic DNA database in the United States.⁵² In 1994, Congress followed suit. The DNA Identification Act authorized the Federal Bureau of Investigation (FBI) to establish and maintain a national DNA database and instructed the Bureau to develop software to allow for rapid comparison of DNA profiles and sharing of information within and between jurisdictions.⁵³ Pursuant to that legislation, the FBI pioneered the Combined DNA Index System (CODIS)—a central database into which participating states and agencies can load the genetic profiles they lawfully acquire and search among the profiles made available by other jurisdictions.⁵⁴ Today, all fifty states, the District of Columbia, and the federal government collect, store, and share genetic information through CODIS.⁵⁵

The national database organizes genetic profiles in a number of indices.⁵⁶ For present purposes, the most relevant indices are the database storing profiles of forensic samples collected at crime scenes (so-called forensic profiles) and the database containing profiles of known persons (so-called offender profiles). The profiles uploaded to CODIS report only the numbers describing the alleles present in an individual DNA sample and sufficient identifying information to trace the sample back to the uploading agency. Personal information, such as the name and address of the individual from whom the DNA sample was taken, is retained by the uploading agency and may only be disclosed to particular persons for approved reasons.⁵⁷

CODIS also operates within three jurisdictional tiers: local (LDIS), state (SDIS), and national (NDIS). Federal statutes and regulations set minimum standards for the information that may be uploaded to NDIS and establish minimum quality control requirements that participating laboratories must meet.⁵⁸ The tiered approach, meanwhile, permits state and local agencies to operate their respective DNA databases under less stringent standards, according to applicable state law and local policy. Under recent amendments, states may now upload to NDIS any profile collected in a manner consistent with their own laws.⁵⁹

Nonetheless, until 2006, the FBI did not permit states to share offenders’ identifying information unless a match indicated a specific offender as the putative perpetrator.⁶⁰ States could only obtain identifying information for partial matches located in their own state or local databases.⁶¹ Pursuant to an interim policy issued in July 2006, states may now also share partial match information under certain circumstances.⁶²

In the years since its inception, CODIS has grown rapidly. Initially, many states limited the collection and retention of DNA to sex offenders.⁶³ Today, however, nearly all states, as well as the federal government, mandate DNA sampling from all convicted felons.⁶⁴ Many have gone further still. To date, at least sixteen states require the collection and retention of genetic information from some misdemeanants,⁶⁵ and at least twenty-one states, as well as the federal government, compel samples from arrestees who have yet to be convicted.⁶⁶ The FBI reports that, as of December 2010, [t]he National DNA Index (NDIS) contains over 9,233,554 offender profiles and 351,951 forensic profiles.⁶⁷

In addition to these well-documented trends in database expansion, local jurisdictions also often maintain DNA databases not limited to offender samples. Some of these rogue databases include DNA profiles of victims, excluded suspects, or lab workers.⁶⁸ These profiles are generally not includable in the state or national DNA database, but it is unclear how this information may be used by local law enforcement. In at least one instance, investigators working with lab analysts used a victim’s genetic profile to identify her brother as the perpetrator of a string of other crimes.⁶⁹

Law enforcement personnel use CODIS to uncover a variety of informative genetic links. DNA collected at crime scenes can be compared with the DNA profiles of known individuals stored in the offender database. When a search returns a match, this may be probative evidence that the matching offender committed the crime. As new offender profiles enter the database, a hit may result for an old, as yet unsolved case (a cold hit). Alternatively, DNA from a recent crime scene may indicate that a previously convicted (or arrested) individual has committed a new infraction. Separately, DNA from multiple crime scenes can be compared to uncover strings of crimes presumably committed by the same person. According to the FBI, CODIS hits have added value to more than 100,000 investigations to date.⁷⁰

In searching CODIS, an investigator must determine not only what database(s) to search, but also how strictly to constrain the match parameters. The CODIS software enables searches at three levels of specificity: high, moderate, and low stringency.⁷¹

A high-stringency search requires identity both in number and kind of all twenty-six of the alleles in the two samples. A moderate-stringency search returns matches in which the profile has all twenty-six alleles of the submission, but the submission contains additional material as well. Such a search could be useful in the case of mixtures, when investigators wish to pull up all profiles that contain all of the submitted sample’s alleles, while also allowing the submission to have extra alleles likely belonging to another person. A low-stringency search returns matches in which at least one allele is present, even though the profile has additional alleles that the sample does not, or vice versa.⁷²

Investigators typically employ high- or moderate-stringency searches, with the goal of identifying an exact match indicating the probable perpetrator of a crime. But as stringency is relaxed from high to moderate to low, a search may return close but imperfect—partial—matches.

C.  Methods of Partial Matching

In some respects, partial matches resemble the exact matches that have become a mainstay in American forensic investigation. Both partial and exact matches seek to identify connections between crime scene DNA evidence and known offender profiles. Both compare the same kinds of DNA and CODIS databases—no additional DNA need be collected for investigators to identify potential familial involvement in a crime.

However, these two kinds of matches are also distinct. When an exact match is uncovered, this may be probative evidence that the matching offender was involved in the crime under investigation. The offender whose profile provided the match is thus the target of investigation. The target of a partial match is different. A partial match in this context refers to two genetic profiles—one derived from a crime scene sample and the other from CODIS—that share some, but not all, of the thirteen core DNA loci that comprise a CODIS profile. This kind of match generally excludes the offender whose CODIS profile provides the