DNA TESTING: A VISION FOR THE FUTURE BUT POSSIBLY A THING OF

THE PAST

Brenna Cragun
1 December 2015

DNA TESTING: A VISION FOR THE FUTURE BUT POSSIBLY A THING OF

THE PAST

Submitted to
Professor Michael Rutter
Brigham Young University
Provo, UT

Brenna Cragun
1 December 2015

1 December 2015
Brenna Cragun
1285 N. Freedom Blvd Apt. 9
Provo, UT 84604
(918) 332-6326
brenna.cragun@gmail.com
Michael Rutter
English Department
BYU
Provo, UT 84604
Professor Michael Rutter:
I have submitted "DNA TESTING: A VISION FOR THE FUTURE BUT POSSIBLY A
THING OF THE PAST" for your consideration.
This paper is an informative overview of DNA testing and analysis and its use in court.
The paper goes on to talk about the restrictions that have been placed on DNA testing's
use in court as well as controversial aspects of its use and storage. The paper explores the
possibility that DNA testing's use will decrease because of its controversy and
restrictions.
This paper's parenthetical citations, works cited and bibliography were created using the
requirements of MLA format.
This paper is being submitted to help fulfill a partial requirement for the class, English
316: Technical Communications at Brigham Young University.
Sincerely,

Brenna Cragun

TABLE OF CONTENTS

LIST OF VISUALS............................................................................................................v
ABSTRACT ...................................................................................................................... vi

I. Introduction ....................................................................................................................1

II. CONSTITUTIONALITY.............................................................................................4
DNA Testing Overview....................................................................................................4
DNA Sample Collection ...................................................................................................5
DNA Storage ....................................................................................................................7
DNA Profile Usage ..........................................................................................................8
Familial DNA testing ...................................................................................................8
DNA profile privacy .....................................................................................................9
Social inequality problems .........................................................................................10
Problems with a national database .............................................................................10

III. LEGISLATION AND STANDARDS ......................................................................11

Frye Standard .................................................................................................................11
Problems with Frye standard ......................................................................................12
Daubert Standard ...........................................................................................................12
Problems with Daubert standard ................................................................................13
A Better Solution for Legislation ...................................................................................13

IV. AGE AND TECHNOLOGY .....................................................................................15

Rapid DNA Analysis ......................................................................................................16

V. CONCLUSION............................................................................................................18

WORKS CITED...............................................................................................................19

BIBLIOGRAPHY ............................................................................................................21

LIST OF VISUALS
Figure II.i PCR Amplification ..........................................................................................4
Figure II.ii DNA Electrophoresis......................................................................................5

Figure II.iii DNA Gel Electrophoresis .............................................................................5

Figure II.iv States with DNA Collection Laws ................................................................6

Figure II.v Familial Testing Approved ............................................................................9

Figure IV.i DNA Sequencing Prices ...............................................................................15

ABSTRACT

DNA testing has revolutionized the courtroom since it was first used to convict a
rapist. Although it has been a wonderful tool in the courtroom, there were other things to
be considered as it became more popular as evidence. DNA testing and storage is
controversial as some see it as an infringement on their privacy. There has been
legislation that has unsuccessfully tried to standardize its results and use in court. This
paper dives into all the problems and controversies surrounding DNA testing's use in
court. It also looks at how those problems and controversies could possibly cause a
decrease in DNA test results being used in a court of law.

DNA TESTING: A VISION OF THE FUTURE BUT POSSIBLY A THING OF

THE PAST

I. INTRODUCTION

DNA testing has played a critical role in the justice system, since it was perfected in
1983. This development to the justice system created excellent results and has since
helped many innocent people go free. Just like any new tool that the government can use,
there were a few problems that needed to be addressed. Legislation needed to be passed
to standardize procedure to help maintain sample integrity and the best results possible.
This process is still being developed and new technology keeps revolutionizing the
process by which DNA is sequenced and analyzed. This facilitated the need for court
systems to pass legislation within states to help standardize procedure and use. Because
of DNA testing's youth; the laws passed for standardization have impeded its use more
than it helped. More legislation had to be passed to try and correct the wrongs the
previous legislation caused. Unfortunately, it wasn't much better in the long run. The
legislation simply has not been able to keep up with the revolution of DNA testing and

analysis procedures. The red surrounding its use in court is making it difficult to be able
to use effectively in a court case.
There is also dispute about DNA sample's use, testing and storage being
constitutional. Do people lose the right to DNA privacy when they are suspected or
convicted and a sample is needed for comparison? That sample will then stay in a
databank or even a database for further use and comparison. Although these databases
help to solve other cases, what is to be done with the DNA of those who are wrongfully
convicted? Their DNA is there even though they have done nothing wrong. They could
very much feel that their privacy and identity is being infringed upon as they no longer
have genetic privacy. Their DNA is also then used to compare other DNA samples that
are not in the system. This is called familial DNA testing. They look for their closest
relative within the system because of how similar the genetics would be between say a
mother and son or brother and sister. This allows them to find people without having
them DNA previously in the system. Families do not like this type of testing as it brings
up unpleasant things that have been put to rest but also that the government and local
officials have been "snooping" around their family tree.
There is a stigmatism that forensic investigations are a very cut and dried process. A
forensic team can gather the evidence and within a few weeks you have your killer and
the case is closed. People who watch crime shows believe that forensic and other types of
investigations that need or include DNA samples believe that it is as simple as they show
it to be in a 45 minute episode. This is not the case.
The purpose of this paper is to inform the general populous about the red tape and
controversies that surround DNA testing and its use in today's courts. If these things are

not addressed in a timely manner, there could be a decline in DNA testing's use in courts
because of how much red tape surrounds its gaining, use and how the testing is
performed. People should know what is going on and that their DNA could be collected
and stored for the rest of their life. Also they should be aware of how things can be if they
were to suddenly be thrown into the justice system because of a mistake or a loved one's
involvement.

II. CONSTITUTIONALITY

Constitutionality is first and foremost the largest controversy that surrounds DNA
testing. There are three main issues that surround constitutionality. They are 1) Collection
of DNA, 2) Storage and Future Use of DNA profile, 3) Social Inequality. All of these
issues find root in the right to privacy which was established in the court case Griswold
vs. Connecticut (Griswold vs. Connecticut). Depending on if further rulings on the
subject say that DNA collection or storage is unconstitutional, DNA's use in court could
be further restricted on this account. It will also be discussed where the government and
law enforcement draw the line when an individual loses that right to genetic privacy due
to suspicion of crime involvement.
DNA Testing Overview
DNA testing and analysis is possible when a biological sample is collected. This could
be blood, saliva, urine, semen or vaginal fluid. The sample is then amplified through a
process called Polymerase Chain Reaction, or more commonly known as PCR.

Figure II.i . PCR AMPLIFICATION. How PCR

amplifies a DNA sample (Jurkat-Rott).

PCR allows for millions of copies of DNA to be tested to give accurate results. It allows
there to be a sufficient amount of DNA present to be analyzed. The DNA is then cut at
specific DNA sequences by restriction enzymes. With the DNA in different lengths in
can then be run through a gel.

Figure II.ii. DNA ELECTROPHORESIS.

How DNA samples are used to solve crimes (Cummings).
DNA is negatively charge and can therefore by pulled through a gel by an electric charge
through a solution. This then separates out the DNA by length and can be compared to
other samples and a DNA ladder used as a comparison ("DNA Evidence: Basics of
Analyzing").

Figure II.iii. DNA GEL ELECTROPHORESIS.

True representation of what a run gel looks like (Casey).
DNA Sample Collection
DNA can be collected upon arrest, usually in the form of a cheek swab (Mears). In a
handful of states, they require that anyone arrested or incarcerated to submit a blood
sample as well (Hibbert). This is where the argument of if a criminal loses their right to

privacy comes into play. Does a suspicion of a crime automatically take away a person's
right to privacy? A person's DNA is the very thing that makes them a person. The
configuration of how the A, T, C, G base pairs are what make people who they are. The
Supreme Court has legalized DNA collection upon a arrest because of the following
logic: "Gathering information about a databanked criminal's sibling runs afoul of the
justification that databanked criminals, by virtue of being criminals, have surrendered a
degree of privacy and, therefore, it is acceptable to have their genome digitized for all
law enforcement officers to share" (Hibbert).

Figure II.iv. STATES WITH DNA COLLECTION LAWS. Some states

have allowed for DNA to be taken upon arrest, whereas others have put
more stipulations on collection (Samuels).
They are privy to their business, but as soon as it steps outside the bounds of law, that all
disappears. They are no longer viewed as a citizen, but as a criminal.

Because of DNA's success so far in courts, cheek swabs have become common
practice after arrest. A cheek swab is the new DNA fingerprint. David H. Kaye, a law
professor at Pennsylvania State University said: "The majority opinion rests on the
premise that the state is not using this information to obtain what we would really think
of as private or sensitive information...It really is just a token of identity, like a Social
Security number (Walsh). He argues that DNA collection really isn't that big of a deal
because one of many identifiers that we receive in the world. In contrast, a social security
number is something assigned to a person for identification purposes among the
government. DNA is something much more personal and doesn't get randomly assigned.
DNA collection is a big deal either way.
DNA Storage
All DNA samples collected from criminals go into a database. This has become
standard procedure since the Supreme Court ruling that legalized DNA testing on arrest.
A database is a collection of information about a person and their DNA profile can go
with that. A databank on the other hand has minimal information on a person and it is
usually biometric data such as blood, height, weight, eye color (Michael). Most samples
go into a database. Those who might end up being suspects to a crime are often required
to submit to a DNA test. This info goes into a database. If the suspect is found not guilty
then their DNA stays in the system. Most states do not require the DNA profile's deletion
and so the innocent's person's data stays in the system ("Supreme Court ruling on DNA
sampling is a worrisome erosion of the Fourth Amendment" ). An innocent person may
find this to be an infringement on their privacy as they have not committed an illegal act

that would cause them to lose that right. Most people wouldn't know that as it isn't
information that is readily given or talked about.
DNA Profile Usage
The collection of DNA upon arrest and insertion into a database does end up being
very helpful for the law enforcement agencies. This DNA sample can be run through an
unsolved crimes database and compared to the unknown samples that they have. It is a
distinct possibility that they will be ability to link the criminal to a previous crime and
have him convicted for all of his crimes (Hibbert). This allows justice to be dealt with
and for more cases to be resolved so they can continue to focus their work on the newer
cases of more pressing matters. This aspect of DNA profiling and storage does end up
being useful and helps to prevent criminals from getting off free after they've committed
crimes.
Familial DNA testing. Not only are DNA profiles used to solve old cases, but it can
also be used to solve new cases. This technique is called familial DNA testing. In
Wisconsin there was an instance in which the technique was very successful. A woman
was raped and the man they convicted was able to walk. His brother got into trouble for
possessing marijuana and they took a sample of his DNA. In familial testing, if you have
an unknown sample, you can run it in comparison to other DNA samples and look for
family members. They would be classified by subtle differences in DNA, but it would be
close enough of a match to be considered a family member. From there, law enforcement
can use the info on the relative to track down the suspect.

Figure II.v. FAMILIAL TESTING APPROVED. States in

green have approved familial testing whereas the states in red
have outlawed it (Familial Searching).

The previously convicted man was again convicted and with a DNA sample from him,
they were able to link him to four rapes. The brother expressed his frustration about the
result by saying, "The fact that they said it was from my DNA that he was caught? Yeah.
I don't feel like anyone should have been snooping around my family tree for any
reasons." This family is challenging a local court for the legitimacy of familial DNA
practices (Dwyer).
DNA profile privacy. The major concern of privacy comes from where the source of
DNA comes from. If a person ends up being the reason another family member goes to
jail, it can destroy family ties. The law system has basically started pitting each family
member against each other. Although it does help to convict those who are guilty who
have walked free, law enforcement puts undue stress on family ties. This stress could
cause the family to fall apart. Although not the intended result of familial DNA testing, it
is a result that needs to be considered as its popularity increases.

Social inequality problems. With the storage of DNA, there is a whole other side of
the coin that needs to be looked at. Not only does privacy play into its controversy, but
also social inequality. It is argued that law enforcement members take in more Hispanics
and African Americans instead of taking in Caucasian people. This causes a startling
disparity in the genetic information that is gathered. Those who are advocates towards
racial equality, there is an option that would satisfy them. This would be a universal DNA
database. Everyone would submit a DNA sample and would have a profile within the
databases (Reilly). Most people would not go for that kind of deal. They would be forced
to give a part of themselves to be tested and kept for further use. Although it is argued, if
they don't commit any crimes, they don't have to worry about it. But the fact that they had
no choice in the matter of having their DNA taken, analyzed and stored is what concerns
them. It is their loss of choice which makes them unhappy.
Problems with a national database. The addition of a country wide database would
be a valuable asset to law enforcement. This would enable law enforcement to have the
needed resources to find criminals, but getting everyone to submit to a DNA test would
be very difficult. Not only that, widespread testing would end up being time consuming
and resource draining. They would also have a backlog of DNA samples to test and
upload to the system. They would have to continue to take the cases as they come. It
would also take years for them to be able to get the entire system updated. In this case, it
is important to weigh out options. Is the insistence of a national database really worth it
to fight the people who firmly believe in the right to privacy and won't submit without
difficulty? Or is it more important to make sure that each race is equally represented in
the system? That is what this debate boils down to.

III. LEGISLATION AND STANDARDS

Since DNA testing's debut in the courtroom, it became necessary that there be a
standard set for its use. It took a while to happen because it isn't always obvious what
problems will arise. After a while, legislation was passed in hopes to standardize DNA
testing's use in a court of law. This ended up becoming the Frye standard. At first it
seemed to work out well to help standardize use, but this had bugs. More legislation was
passed years later in hopes of fixing the problem with the Frye standard. It is known as
the Daubert standard. Though, well intentioned, there were still things that the standards
didn't address. In this chapter it will be explained what each standard dictated, its
problems and the other problems that have not yet been addressed.
Frye Standard
The Frye standard came out of a court case that was called Frye vs. United States. In
this court case there was a murderer who was on trial and the opposing side wanted to
subject them to a deception test. The basis for this test is that lying takes conscious effort
and causes a change in blood pressure as they are in fear of being figured out that they are
lying. The Frye standard came out of the deception test being borderline experimental
and demonstrable. They needed the scientific community to back up the tests claims. Due
to its gray area position, the scientific community couldn't back it up. In this court case it
was determined that for scientific tests to be allowed for use in court, the evidence must
be "sufficiently established to have gained general acceptance in the particular field in
which it belongs" ("Frye v. United States"). This standard was inherently applied to

DNA testing. The standard can be simplified down to the need of DNA testing method
results to be analyzed for reliability which in turn determines usability.
Problems with the Frye standard. Due to the fact that the Frye standard was a
multiplicity of scientific tests, there were unresolved problems that went unaddressed for
DNA testing specifically. There also was a whole new set of problems that came along
with the standard for DNA testing. The standard made it difficult to establish an
acceptance of the DNA testing method and results as a whole. They didn't have a
prescribed definition of "general acceptance" and did not choose a particular method or
scientist to determine this. The standard just went with a blanket statement that they
hoped would give enough restriction to exclude experimental science. Instead it gave the
scientists a vague standard that couldn't really be applied or upheld (Behrouzfard).
Furthermore, the standard didn't address the need for a relevance test nor did it account
for new technologies.
Daubert Standard
The Daubert standard tried to fix the problems that were created by the Frye standard.
The Daubert standard was determined in a court case called Daubert vs. Merrell Dow
Pharmaceuticals. This case was two women who were using contraceptives going against
the company that made the drugs. This was because they became pregnant while taking
the drug. The case really boiled down to whether the Frye standard or the Federal Rules
of Evidence took the upper hand in a case like this. It eventually made it to the Supreme
court. It was decided that the Federal Rules of Evidence surpassed the Frye standard.
From there it was decided to put in a different standard system. Frye was thrown out and
the Daubert standard was born. The Daubert standard states that peer review helps to

establish the admissibility of a scientific test as well as looking at the scientific test as a
whole. The results of the test also have to be related to the case in at least one way
(Orofino). The new standard looks solely at the scientific test itself. And if the scientific
test, as a whole, is sound, then it is considered usable for courtroom evidence.
Problems with the Daubert standard. Although the Daubert standard is a step in the
right direction, there of course were problems that would arise. Peer reviewed articles are
indeed ideal for determining scientifically sound testing procedures. The internet though
makes this somewhat more difficult as there is a multiplicity of information out there,
which if twisted enough, could be justified for a court case. On top of that error rates for
procedures differ and if the judge has no preconceived knowledge on the subject, then
they could allow for a horribly inaccurate procedure to be used (Orofino). This would
allow for many unsound scientific procedures to slip through the fingers of the authorities
and would throw off the justice system as a whole. At least for DNA testing, there are
new procedures that do come out and due to the fact that the Daubert standard calls for
peer review, it could take a long time for the new procedure to be assimilated into testing
procedures legalized for court evidence. This isn't ideal because the new procedures have
improved efficiency and accuracy.
A Better Solution for Legislation
The problems that scientists face through the legislation has been passed must be
frustrating. It would make more sense for there to be a present scientist to help create this
legislation, but that didn't happen. Instead we had politicians creating laws about
scientific procedures that they know little about. Politicians and scientists needed to work

side by side to be able to come up with an effective standard that will not put scientists in
a bind when it comes to analyzing evidence for crimes.

IV. AGE AND TECHNOLOGICAL ADVANCES

The true beauty of science is its ability to keep progressing. This is true when it comes
to DNA testing. DNA testing came onto the criminal scene when it was perfected in
1985. It took two years for it to actually convict a man in court, but it made its debut in
the courts in 1987. Since then, its use has skyrocketed and the technology that is used for
DNA testing has gotten much more efficient and cheap (James). The youth of DNA
testing has allowed for the continuation of new technological development.

Figure IV.i. DNA SEQUENCING PRICES. DNA sequencing

prices have greatly decreased over the years (Carlson).
It also has allowed for greater accuracy of the DNA test to be achieved even though it
was already remarkably accurate. There will still be technological advances that continue
to revolutionize DNA testing's efficiency and accuracy.
In fact, the original DNA testing procedure needed large amounts of high quality
DNA to provide good results ("History of DNA Testing"). In a forensic investigation
they often do not find good quality samples in large quantities. This is where the

Polymerase Chain Reaction comes into play. That has allowed for the amplification of
DNA by making multiple copies. New DNA testing procedures have allowed for accurate
sequencing of smaller and lower quality DNA samples found at crime scenes. Without
this progression, forensics wouldn't be nearly as good as it is now.
Although this progress that will undoubtedly come, there is a problem with this. The
legislation that has been approved by courts about its use did not account for the
progressing technology in a way for it to be useful as soon as the procedure and technique
have been perfected. The new technologies could revolutionize the analysis and speed up
the testing process. This would allow for more due process of law as these new
technologies would cut down on days to get the DNA sample analyzed and put into the
system. It would make the most sense to write laws that would accommodate for such
advances.
Rapid DNA Analysis
For example, the FBI has been working on a rapid DNA analysis machine. It is a piece
of technology that can take a buccal (cheek) swab and sequence it in one to two hours
and then the DNA analysis can be uploaded to the database ("Rapid DNA or Rapid DNA
Analysis"). This would be an amazing advance in technology. It would allow for a much
easier, cheaper and quicker DNA analysis which would help to eliminate the red tape that
prolongs results. Not all law enforcement buildings have a lab in which DNA can be
sampled at ("Quality Assurance Standards for Forensic DNA Testing Laboratories"). If
this ends up being the case, they have to send it to a lab to be analyzed. The lab then has
to send back the results and then the DNA profile can be input into the database. Alas,
the technology has to be perfected first and then it will have a trial period in which its

results cannot be used due to the lack of peer reviewed sources on this particular
procedure. Which means, until this procedure proves itself, the law enforcement systems
and courts will be stuck with the less efficient procedure until canonized by time.

V. CONCLUSION

The amount of restrictions and legislation that have been put on the use of DNA
testing will undoubtedly cause further problems. DNA's use in court potentially will
decrease. If better legislation is not passed concerning its use, then court evidence will
always be a step behind the latest technology. This seems counterproductive to the use of
DNA because it is a valuable piece of evidence and if it can't be analyzed with the best
technology out, then why have it be used in court. The quality of DNA analysis would be
below par. And that is not what we want lawyers building their cases off of.
Constitutionality of DNA testing is still yet to be decided. The Supreme Court has
allowed for states to make their own laws for now concerning familial testing and
database storage rules. As long as people keep taking these practices to court, one case
will eventually make it to court. And then the court will have to make a definite decision
about the constitutionality of these laws. And this will lead to either a nationwide
database will all people in it, or they will decide that if a person is proved innocent that
their DNA be expunged from the database. And then familial test will either be okayed
nationwide or it will become a banned practice.
Although DNA testing has revolutionized forensic and criminal investigations, there
are still bugs to be worked out. These problems and questions will either make or break
DNA testing's use in courts for the years to come. There will still be technology that will
make DNA testing even faster. It will also be able to take smaller samples of lower
quality and be able to sequence it with even greater accuracy. Only time will tell if DNA
will keep its place in the court system.

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