The Judicial Reception of Acquiring Biometric Data on Arrest: Photographing, Sizing, and Fingerprinting Before 1933

A recent article suggests that in the first third of the Twentieth Century, American courts generally did not sanction photographing, fingerprinting, or making physical measurements of arrestees (Bertillonage). According to Wayne A. Logan, Policing Identity, 92 B.U. L. Rev. 1561 (2012), courts did not “sanction the common practice of ‘mugging’ every suspect whose picture and measurements the police would like to have. Nor d[id the courts] sustain the right to retain the prints and measurements after acquittal.” Id. at 1579 (quoting A.M. Kidd, The Right to Take Fingerprints, Measurements and Photographs, 8 Cal. L. Rev. 25, 32 (1919)). A mere “handful of decisions [adopted] a more generous stance.” Id. The early regime of general disapproval of police acquisition of biometric data then changed “[s]tarting in the 1930s, [as] courts began evincing a less critical and more accepting view. Most notably, in United States v. Kelly [55 F.2d 67 (2d Cir. 1932)] the Second Circuit rejected a challenge to the use of identity evidence, based on the absence of statutory authority to extract prints, brought by a defendant facing misdemeanor prosecution under the National Prohibition Act.” Logan, supra, at 1580.

The theory that United States v. Kelly, 55 F.2d 67 (2d Cir. 1932), represents a phase shift is open to serious question. True, a mere handful of decisions upheld the collection, retention, and widespread circulation of biometric records all at once. But then again there were only a handful of reported opinions—of any kind on each of these matters. An annotation from 1933 observed that

Considering the large number of arrests that are made, there are comparatively few cases in which the right of a person to prevent his description from taking its place in the "rogues' gallery" has been involved. The decisions of those few cases are not uniform. This is accounted for in part by the difficulty the courts find, on account of the form of the pleadings, in granting the relief sought. Both mandamus and injunction have been held not to be the proper remedies.

Annotation, Right to Take Finger Prints and Photographs of Accused Before Trial, or to Retain Same in Police Record After Acquittal or Discharge of Accused, 83 A.L.R. 127 (1933).

Having now read almost all the appellate opinions in the original annotation, my conclusion is that the clear majority rule favored the collection and retention of the data. Both before and after Kelly, appellate courts did not recognize high constitutional barriers to collecting biometric data from arrestees and rarely found merit in demands for the destruction of fingerprints, photographs, or bodily measurements.

Proceeding chronologically, in the earliest case collected in the Annotation, the Indiana Supreme Court evinced no doubt that a sheriff had the power to acquire biometric data on an arrestee. In State ex rel. Bruns v. Clausmeier, 57 N.E. 541 (Ind. 1900), the gravamen of the complaint was libel—that the sheriff damaged an acquitted defendant’s reputation by circulating his picture. The Indiana Supreme Court observed (in dictum) that “It would seem, therefore, if, in the discretion of the sheriff, he should deem it necessary to the safe-keeping of a prisoner and to prevent his escape, or to enable him the more readily to retake the prisoner if he should escape, to take his photograph, and a measurement of his height, and ascertain his weight, name, residence, place of birth, occupation, and the color of his eyes, hair, and beard, as was done in this case, he could lawfully do so.” The court cited no opinions to the contrary.

In Shaffer v. United States, 24 App. D.C. 417 (D.C. 1904), the defendant objected to the use of his arrest photograph (in which he had no beard) to help a witness identify him at trial (when he had a beard) on the ground that the state had no right to photograph him for that purpose and that using the photograph at trial violated his right not to be compelled to incriminate himself. The District of Columbia’s Court of Appeals forcefully rejected the argument, observing that photographing arrestees was “one of the usual means employed in the police service of the country, and it would be matter of regret to have its use unduly restricted upon any fanciful theory or constitutional privilege.”

Thus, the earliest appellate cases reflect no condemnation of the routine collection biometric identification information following an arrest. However, the Louisiana Supreme Court expressed a different view in Itzkovitch v. Whitaker, 42 So. 228 (La. 1906), and Schulman v. Whitaker, 42 So.2d 227 (La. 1906).  In these cases, the court saw no reason to take photographs (and share them with other police agencies) before conviction. The Louisiana Supreme Court cited no opinions previously adopting this position. Clausmeier and Schaffer notwithstanding, the Whitaker court “found no precedent directly pertinent to the issues here.”

The Arkansas Supreme Court in Mabry v. Kettering, 117 S.W. 746 (Ark. 1909), followed Clausmeier and Schaffer. Three men charged with state crimes and held in a county jail sought an injunction against developing the negatives of photographs that their jailers had taken. The state planned to give the photographs to federal officials “for the purpose of identifying appellants in the various localities where [federal] offenses are charged to have been committed.” The state supreme court held that they were not entitled to the injunction. It wrote that “[t]he authorities cited by appellants in support of their claim for a temporary injunction clearly recognize the principle that public officers, charged with the enforcement of criminal laws, and having in their custody individuals charged with crime, may use photographs for the purpose of identifying the individual accused.” The “identification” here plainly involved the use of the photographs in separate and unrelated investigations.

In the same year, Maryland’s highest court also rejected the Louisiana approach. In Downs v. Swann, 73 A. 653 (Md. 1909), the Court of Appeals affirmed the dissolving of an injunction against taking photographs and bodily measurements to identify an arrestee. This court defined “[t]he precise question” as “whether the police authorities of Baltimore city may lawfully provide themselves, for the use of their department of the city government, with the means of identification of a person arrested by them upon a charge of felony, but not yet tried or convicted, by photographing and measuring him under the Bertillon system.” The court perceived no constitutional defect in acquiring the identifying information. As for the general state of the law, the court explained that “The right of the police authorities to employ the Bertillon process for the identification of convicted criminals has been recognized in most, if not all, of the jurisdictions in which the subject has received consideration, although several courts and text-writers have either questioned or denied the right to subject to that process persons accused of crimes before their trial or conviction.” It cautioned, however, that it was not countenancing “the placing in the rogues' gallery of the photograph of any person, not a habitual criminal, who has been arrested, but not convicted, on a criminal charge, or the publication under those circumstances of his Bertillon record.”

In 1915, the Washington Supreme Court rejected an offender’s demand for the destruction of postconviction photographs. Although Hodgeman v. Olsen, 150 P. 1122 (Wash. 1915), is not a case on arrestee data collection—indeed, the court judiciously noted that did not need to reach the question of preconviction data collection—the opinion sheds light on the judicial understanding of that question at that time. The Washington court “call[ed] attention to . . . cases explicit in affirming the implied police power to take, preserve, and make reasonable use of such photographs and data for the identification of persons convicted of crime, and even of persons accused of crime, but not yet convicted.” 150 P. 1122. The only appellate cases to the contrary were the isolated Louisiana ones.

Finally, in Miller v. Gillespie, 163 N.W. 22 (Mich. 1917), the Michigan Supreme Court held that an arrestee was not entitled to the destruction of identifying records even though the charges against him were dismissed at trial. It perceived absolutely no authority—including the Louisiana cases—“for granting relief . . . , unless it can be said that the mere preservation in the files of the police department of a report proper to be made in the first instance—a true report—exposes plaintiff to ridicule, obloquy, or disgrace.” Naturally, the court was unwilling to say any such thing.

In sum, by the 1920s, the Louisiana cases were the exception to the rule. Those opinions, and ones from trial judges reaching similar results, never were the majority rule. The main innovation of United States v. Kelly, 55 F.2d 67 (2d Cir. 1932), was its deliberate extension of the majority rule to misdemeanor arrests. It described fingerprinting of arrestees as "widely known and frequently practiced both in jurisdictions where there are statutory provisions regulating it and where it has no sanction other than the common law." Id. at 70. The opinion was not radical. If it was persuasive in expanding the established doctrine, its impact may have been related to its unusually detailed analysis of the law and policy and to the prestige of the court. Judges Augustus Hand, Learned Hand, and Thomas Swan comprised the panel--a veritable judicial powerhouse.

References

Annotation, Right to Take Finger Prints and Photographs of Accused Before Trial, or to Retain Same in Police Record After Acquittal or Discharge of Accused, 83 A.L.R. 127 (1933).

David H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol'y 455 (2001)

A.M. Kidd, The Right to Take Fingerprints, Measurements and Photographs, 8 Cal. L. Rev. 25, 32 (1919)

Wayne A. Logan, Policing Identity, 92 B.U. L. Rev. 1561 (2012)

"Human Error, Bias, and Malfeasance" in DNA Databases and Law Reviews

A new article in the Boston University Law Review offers the following warning:

[E]xpansive police arrest authority—and the desire to continually enlarge identity evidence databases at very little cost in time and expense—should give pause for several reasons. First, contrary to common public perception, DNA is not infallible. Rather, like other evidence, it is subject to human error, bias, and malfeasance, and has figured in several wrongful accusations and convictions. As Professor David Kaye notes in his recent book:

How probable is it that two, correctly identified DNA genotypes would be the same if they originated from two unrelated individuals? By definition, [such matches] do not consider any uncertainty about the origins of the samples (the chain-of-custody issue), about the relatedness of the individuals who left or contributed the samples (the identical-alleles-by-descent issue), or about the determination of the genotypes themselves (the laboratory-error issue).

Wayne A. Logan, Policing Identity, 92 B.U. L. Rev. 1561, 1580-89 (2012) (footnote numbers omitted).

Having searched without success for a single case in the U.S. of a false conviction based on DNA evidence from a database search,¹ I was puzzled. Could I have missed several false convictions arising from erroneous DNA testing? Did these cases involve database trawls, where observer “bias” is not normally an issue?

Being a lawyer, I did what any reader of law review articles must do. I turned to the footnotes. The footnote on false convictions as a reason to constrain DNA databases reads as follows:

See Greg Hampikian et al., The Genetics of Innocence: Analysis of 194 DNA Exonerations, 12 Ann. Rev. Genomics & Hum. Genetics 97, 107 (2011) (mentioning existence of at least fifteen exonerations in which DNA resulted in conviction).

If Professor Logan (and the source-citation reviewers of the Boston University Law Review) are correct, Professor Hampikian discovered at least 15 cases of DNA evidence that resulted in false convictions. How could I have missed all these case in my earlier postings?

The Genomics and Human Genetics review article plainly does not even begin to support the claim that DNA testing produced 15 false convictions. It merely states that among previously analyzed cases of postconviction exonerations, "there were at least 15 cases where DNA was tested prior to conviction." Hampikian et al., supra, at 107. Let's look at the outcomes of this DNA testing, as presented by Dr. Hampikian and his colleagues:

• The cited article does not even discuss the outcome of the DNA tests in two of the 15 cases because there were no "transcripts or other accurate information on the DNA results available." Id. Counting two cases on which there is no information as showing that contemporary DNA databases produce false convictions is surprising.
  
• "The majority of these cases included proper testimony, with DNA results that excluded the exoneree (9 of the 13 cases). These exclusions were explained away by the state in various ways—perhaps the defendant had an unknown codefendant, the DNA could have come from a consensual sex partner, etc." Id. Claiming that DNA databases should be constrained because most DNA typing accurately showed that a defendant was not the source of an incriminating sample is a blunder.
  
• "In 5 of the 13 cases, DQ alpha tests included the exonerees as possible contributors. In 4 of these 5 cases, however, more discriminating tests performed postconviction excluded the exonerees. In the remaining case, a second round of DQ alpha testing exonerated the defendant after it was discovered that the original lab analysis was incorrect." Id. Before the DQA test was retired from forensic DNA testing, it was known to be relatively undiscriminating. See, e.g., Cecelia A. Crouse, Analysis of HLA DQ alpha Allele and Genotype Frequencies in Populations from Florida, 39 J. Forensic Sci. 731 (1994); NFSTC, DNA Analyst Training. Questioning databases stocked with CODIS profiles because a different, bi-allelic locus has different properties is off target.
• "There were four cases where improper DNA testimony was given at trial. In one, the analyst testified about a match based on DQ alpha testing; however, the analyst did not disclose that it was only a partial match. In another case, the analyst did not provide the proper statistic for the population included by the results of DQ alpha testing." To be sure, "improper" testimony is deplorable, but it is not clear that the analyst in the first case incorrectly stated the implications of the match or, more importantly for worries about databases, that analysts working with database matches would give incorrect estimates of genotype frequencies.
• "In a third case, the analyst testified that the DNA matched the exoneree, but failed to disclose an additional exclusionary DNA result." Withholding exculpatory evidence of any sort—DNA, fingerprint, toolmark, eyewitness, or anything else—is unconscionable and unconstitutional. But it is not much of an argument against inclusive DNA databases.
  
• “In the final case, the analyst misinterpreted the results of the testing (which was performed incorrectly—failing to separate the male and female DNA during differential extraction), falsely including the exoneree as a source of the DNA when in fact he should have been excluded.” Yes, if crime-scene DNA is mistyped, and if this error goes unnoticed, a database match could result.

Can DNA databases produce false convictions? Of course they can. Police can commit perjury about DNA evidence, just as they can about other evidence. If there were no databases, it might be slightly harder to fabricate such impressive evidence. DNA evidence, like all evidence, “is subject to human error, bias, and malfeasance.” So are law review articles. And so are blog postings—corrections are welcome.

Note

1. David. H. Kaye, Have DNA Databases Produced False Convictions?, Forensic Science, Statistics, and the Law, July 7, 2012 (cross-posted to The Double Helix Law Blog); David H. Kaye, Genetic Justice: Potential and Real, Forensic Science, Statistics, and the Law, June 5, 2011 (cross-posted to The Double Helix Law Blog).

The Department of Justice and the Definition of Junk DNA

In drafting an amicus brief in Maryland v. King, the case in which the Supreme Court is reviewing the constitutionality of routine collection of DNA before conviction, I decided it is important to clarify the term "junk DNA" if only because it gets tossed around in so many court opinions and briefs. The Department of Justice defines “junk DNA” as “[s]tretches of DNA that do not code for genes.” U.S. Dep’t of Justice, Nat’l Institute of Justice, DNA Initiative Training for Officers of the Court, Glossary, http://www.dna.gov/glossary/ (last visited Dec. 17, 2012). In scientific discourse, however, DNA does not “code for genes.” Rather, parts of genes encode proteins and RNAs. "Junk DNA" is not a synonym for the rest of the genome. It is a provocative and deprecated term for that "fraction of DNA that has little or no adaptive advantage for the organism." Sean R. Eddy, The C-value Paradox, Junk DNA and ENCODE, 22 Current Biology R898 (2012). Some of what NIJ thinks is "junk DNA" is important to fitness. It is not "junk."

NIJ's sloppy treatment of terms like "genes" and "junk" is unfortunate, but in the end I decided the awkward definition was not important enough to snipe at in the brief. On a blog, however, one can be more snippy.

Reconsidering the “Considered Analysis”: How Convincing Are the Cases Cited in the Stay Order in Maryland v. King?

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In King v. State, 42 A.3d 549 (Md. 2012), however, the Maryland Court of Appeals reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Even before the Court could consider issuing a writ of certiorari, Chief Justice Roberts stayed the Maryland judgment. His chambers opinion signaled that "given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below."

Some thoughts on the lower court opinions and the issues the Supreme Court will confront are in press in the online Discourse section of the UCLA Law Review. The essay provides a more coherent, complete, and polished presentation than the scattered remarks in earlier postings on this blog. It briefly examines four sets of opinions—the early one from the Virginia Supreme Court in Anderson, the Third Circuit’s en banc opinions in Mitchell, the Ninth Circuit’s panel opinions in Haskell (vacated to make way for en banc review), and the Arizona Supreme Court’s opinion in Mario W. Building on these judicial efforts, the essay outlines the Fourth Amendment questions that a fully considered analysis must answer, identifies questionable treatments of “searches” and “seizures” in the four sets of opinions, and criticizes the creative compromise in Mario W. that allows sample collection but not DNA testing before conviction.

I do not think that there is much room for compromise on the constitutional question. Various opinions maintain (in dictum) that preconviction collection is acceptable after, but not before, an indictment or preliminary hearing. That's another compromise, of sorts, and the Maryland law (as the state has implemented it) postpones DNA collection until after a probable-cause-for-trial hearing. Thus, anything the Supreme Court will say in King on DNA collection as part of the booking procedure will be dictum. It seems to me, however, that once an individual is legitimately detained, either the Fourth Amendment permits the compulsory collection, analysis, and use of DNA—the whole ball of wax—as a biometric identifier for both authentication and criminal intelligence purposes or it does not.  Thus, I am betting that the Court will write a broad opinion upholding DNA database laws at all points after arrest.  But IMHO, it's a close question.

References

• David H. Kaye, On the "Considered Analysis" of Collecting DNA Before Conviction, 60 UCLA L. Rev. Discourse (forthcoming 2013) (preprint)
• David H. Kaye, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection, 91 N.C. L. Rev. Addendum 1 (2012) (preprint)

The Dictionary and the Database: Thoughts on State v. Emerson

Last week, the Supreme Court of Ohio held that the state may use, in a completely unrelated case, information derived from a DNA sample acquired pursuant to a search warrant without seeking a new warrant. This result is not novel—indeed, a contrary outcome would have departed from the law elsewhere.

Nevertheless, the opinion in State v. Emerson presents a new wrinkle. After Dajuan Emerson was acquitted of the 2005 rape of a 7-year-old girl, his DNA profile somehow resided in the state’s convicted-offender database. Then, in 2007, 37-year-old Marnie Macon was stabbed 74 times in her apartment. (Ludlow 2012). Police recovered blood from a door handle. The DNA profile from this crime-scene sample (often called a “forensic sample”) was run against the state database. It matched Emerson’s profile from 2005. After the trial court denied a motion to suppress this match, the case went to trial and the jury found Emerson guilty of aggravated murder (and tampering with evidence). An Ohio District Court of Appeals affirmed, and the state supreme court affirmed that judgment.

The obvious questions are why the 2005 profile entered the convicted-offender database and whether the Fourth Amendment’s exclusionary rule for unreasonable searches or seizures applies to the resulting cold hit. The Ohio Supreme Court’s analysis of these issues is a little odd. I shall quickly run through the opinion, indicating the oddities.

What is an allele?

The first peculiarity is ultimately of no moment, but I’ll mention it anyway because it shows the continuing inability of too many judges (or the recent law school graduates who are their clerks) to consult suitable scientific references. According to the opinion, “[a] DNA profile consists of a series of numbers that represent different alleles that are present at different locations on the DNA” and “[a]n allele is defined as ‘either of a pair of genes located at the same position on both members of a pair of chromosomes and conveying characters [sic] that are inherited in accordance with Mendelain [sic] law.’ Webster’s New World Dictionary, Third College Edition 36 (1988).”

The alleles used in modern DNA databases are not parts of genes. (Well, some of them are meaningless variations within introns, but even those do not “convey characters” as the classical definition from Webster’s would require.) Perhaps judges should not be criticized for thinking that the word “allele” always refers to genes. To denote variations in DNA sequences that are not the allelotypes of genes, forensic scientists themselves borrowed from the terminology for genes, inviting such confusion. (Kaye 2010). But there are many reasonably accurate explanations of forensic STR “alleles” in the legal and forensic science literature. Consequently, there is little excuse using the inapt dictionary definition. Fortunately, this error does not affect anything else in the opinion.

How did Emerson’s DNA profile get into a CODIS database?

The justices evinced little concern about the statutory violation that led to the fateful match in the case. In fact, the unanimous opinion prominently denies that putting the profile of someone who was not convicted into the state and national databases (SDIS and NDIS) for future trawls departed from Ohio’s convicted-offender law.

The court reached this counter-intuitive result by relying on Black’s Law Dictionary:

Appellant is correct that R.C. 2901.07 does not support the inclusion of his profile in CODIS. However, the same cannot be said for R.C. 109.573. The superintendent of BCI is empowered to “establish and maintain a DNA database.” R.C. 109.573(B)(1)(b). “DNA database” is defined in part as “a collection of DNA records from forensic casework.” R.C. 109.573(A)(3). “Forensic” is defined as “[u]sed in or suitable to courts of law or public debate.” Black’s Law Dictionary 721 (9th Ed.2009). In this case, the police lawfully obtained the DNA sample in the course of the 2005 rape investigation. Therefore, the profile obtained from the sample is a record from forensic casework and is properly maintained in CODIS. Moreover, we note that neither R.C. 109.573 nor 2901.07 require that the state, on its own initiative, remove the DNA profile of a person who was acquitted at trial.

Again, the failure to consult relevant sources for the actual terminology in the field is a gross mistake. Ohio Revised Code § 109.573(3) defines “DNA database” as

a collection of DNA records from forensic casework or from crime scenes, specimens from anonymous and unidentified sources, and records collected pursuant to sections 2152.74 and 2901.07 of the Revised Code and a population statistics database for determining the frequency of occurrence of characteristics in DNA records.

(This is the current version. I am assuming the words are the same as they were in 2007.) The “records collected” under the enumerated sections pertained to “adjudicated delinquents” and to convicted offenders—not to mere suspects. The phrase “forensic casework or crime-scene samples” refers to DNA of unknown origin—from vaginal swabs, clothing, property, etc. As the FBI explains, “the DNA data that may be maintained at NDIS [consists of profiles from] convicted offender, arrestees, legal, detainees, forensic (casework), unidentified human remains, missing persons and relatives of missing persons.” (FBI, undated). There is no authorized category for sundry individuals whose DNA profiles have become known to the police for miscellaneous reasons. Ohio did not take DNA samples from arrestees or detainees until 2011. Under the Emerson court’s peculiar reading of the statute, police in Ohio could use the “abandoned DNA” ploy to acquire a profile from a person even without a warrant and upload it to the state and national databases.

The court’s theory that the Ohio legislature used the phrase “forensic casework” to cover every sample and profile “[u]sed in or suitable to courts of law or public debate” is astonishing. A convicted-offender database system has one set of so-called “forensic” profiles (that could link perpetrators to crimes) and another set of convicted-offender profiles (who might be found to be the perpetrators of the unsolved solves). The “forensic” profiles come from the unknown perpetrators of the crimes. They can be matched, if possible, against the convicted offenders’ profiles (and among one another to identify serial crimes). Neither they nor the convicted-offender database was intended to house profiles from specific suspects who never were found guilty of a qualifying crime. Thus, the state had no convincing legal basis for uploading Emerson’s profile to SDIS and NDIS—and the court should not have approved of such misconduct.

Nonetheless, the statutory violation does not justify excluding the cold hit under the Fourth Amendment. The U.S. Supreme Court has not been kind to the exclusionary rule in recent years. As Emerson observes, it has held that a violation of a state statute does not make a search constitutionally unreasonable.

Did Emerson lack standing to complain of a Fourth Amendment violation?

The Emerson opinion contains a third error. The court holds “that a person does not have standing to object to the retention of his or her DNA profile or to the profile’s use in a subsequent criminal investigation.” This misrepresents the meaning of “standing.” In the Fourth Amendment context, the standing requirement bars “attempts to vicariously assert violations of the Fourth Amendment rights of others.” United States v. Salvucci, 448 U.S. 83, 86 (1980). Thus, in Salvucci, police searched an apartment rented by a defendant’s mother and found checks that her son had stolen from the mails. In his prosecution for possession of stolen mail, the son lacked standing to complain the search violated the mother’s interest in the privacy of her apartment.

In Emerson, the defendant never argued that the cold hit violated someone else’s rights. He argued that it violated his right to be free from unreasonable searches because he had a legitimate expectation of privacy in his DNA profile retained by the state. He surely had standing to raise that claim, and the court references to “standing” are superfluous and confused.

Was the retention of the profile and the trawl of the database a search or seizure?

At last, we come to the dispositive issue in the case—was any Fourth Amendment interest of Emerson’s violated by the retention of his profile and the trawl of the database? The court held—correctly, I believe—that Emerson had no such interest. The state acquired the DNA sample in 2005 pursuant to a search warrant of unchallenged validity. Laboratory analysis of the sample was not a separate search, but the very reason for the search warrant. Simply keeping the identifying profile and looking to see whether it matched new profiles in the “forensic index,” as the FBI calls them, does not rise to the level of new search. Once the government legitimately acquires information pursuant to a search warrant, it need not toss out and forget about that information if it cannot secure a conviction. In later investigations and prosecutions, it can use what it finds in the fully authorized and entirely legitimate search.

Obviously, the situation would be otherwise if the original search were unreasonable. Then the evidence should be excluded to vindicate the defendant’s right to be free from unreasonable searches and seizures. But it would be worse than pointless to exclude, on constitutional grounds, legitimately acquired evidence of guilt. This is the sound core of the reasoning in Emerson. Whether the defendant was acquitted in the case that generated the search warrant, whether  he was convicted then, or whether he never was prosecuted in that case makes no difference. There is no constitutional reason to exclude evidence from a reasonable search.

In Boroian v. Mueller, a case that Emerson overlooks, the U.S. Court of Appeals for the First Circuit held that continued trawls of a database may continue even after an offender has completed his sentence. Emerson extends the reasoning of Boroian to an individual whose DNA profile should not have been in the database in the first place. But because the objection in that respect is entirely statutory, it does not change the result.

Of course, one can question the conclusion that trawling a database is not a separate search, and some commentators as well as some recent opinions on the constitutional of pre-conviction DNA sampling, analysis, and trawling have spoken of different steps in the process as if they were independent searches, each of constitutional magnitude. For reasons stated in Kaye (2011), however, I doubt that these claims are tenable. Despite the terminological and conceptual flaws in the opinion in Emerson, the Ohio Supreme Court reached the correct result.

References

United States v. Salvucci, 448 U.S. 83, 86 (1980)

Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010)

State v. Emerson, No. 2011-0486 (Ohio Nov. 1, 2012) (Slip Opinion No. 2012-Ohio-5047)

FBI, Frequently Asked Questions (FAQs) on the CODIS Program and the National DNA Index System, http://www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet.

David H. Kaye, The Double Helix and the Law of Evidence (2010)

David H. Kaye, DNA Database Trawls and the Definition of a Search in Boroian v. Mueller, 97 Va. L. Rev. in Brief 41 (2011)

Randy Ludlow, Ohio Suspects' DNA Can Be Saved for Later Cases, Court Rules, Columbus Dispatch, Nov. 6, 2012

Cross-posted to The Double Helix Law Blog.

Lies/Fibs, Damned Lies, and Experts/Statistics

Perhaps the most famous quotation about statistics is the most annoying—the one that Mark Twain mistakenly attributed to Benjamin Disraeli: “There are three kinds of lies: lies, damned lies, and statistics.” This tripartite classification of mendacity is quoted with great frequency (I won’t give a statistic) by writers criticizing some dubious statistic or other. For example, one self-styled “critical thinker” uncritically accepts the 19th-century British Prime Minister as the originator of the aphorism. [1]

According to Yale Law Librarian Fred Shapiro, “the first known use of the famous words ‘lies, damned lies, and statistics’ was quoted in the Leeds Mercury, June 29, 1892. The source was a speech by Arthur Balfour—yet another prime minister.” [2] But comparable words, often with “experts” in place of “statistics” appeared in print before then, and Balfour referred to it as “an old saying.” [3] The results of more sleuthing can be found on a webpage maintained at the University of York’s mathematics department’s website.

References

1. Jim Baird, How Statistics Can Lie: Are You Impressed by Remarkable Claims in Product Ads? Here's Why You Might Want to Be Skeptical, http://turf.unl.edu/extpresentationspdf/BairdStats.pdf 
2. Fred R. Shapiro, You Can Quote Them, Yale Alumni Mag., Sept.-Oct. 2012, at 56.
3. Peter M Lee (?), Lies, Damned Lies and Statistics, July 19, 2012,http://www.york.ac.uk/depts/maths/histstat/lies.htm

Who Is Nelson Acosta-Roque? (Part IV)

Despite a brief from 39 “Scientists and Scholars of Fingerprint Identification as Amici Curiae” questioning the telephonic testimony of a fingerprint analyst, the U.S. Court for the Ninth Circuit recently allowed a deportation order based on that testimony to stand. The unpublished per curiam opinion frames the issue as "whether substantial evidence supported the BIA's [Board of Immigration Appeals'] finding 'by clear and convincing evidence' that Mr. Acosta-Roque and Mr. Pecheca-Aromboles [who was convicted in 1991 of delivery of a controlled substance in Pennsylvania] are the same person." The brief opinion concludes that "Mr. Acosta-Roque has not shown that 'no reasonable factfinder' would find that the government proved by clear and convincing evidence that he was a criminal alien under [8 U.S.C.] § 1182(a)(2)."

The reasoning sandwiched between these statements is brief:

[S]cientists and courts have regarded such evidence as reliable for upwards of a century. See United States v. Calderon-Segura, 512 F.3d 1104, 1108-09 (9th Cir. 2008). When, as here, the fingerprints “were exemplars taken under controlled circumstances and were complete, not fragmented,” fingerprint evidence is in fact highly reliable. Id. at 1109. Although the fingerprint examiner in this case may have been less than cautious in her testimony, the immigration judge and the BIA did not err in relying upon it, given the examiner’s experience and the fact that another technician corroborated the findings.

The examiner in the case was unclear about how complete her identification was. How can the court conclude that an examination "is in fact highly reliable" just because an examiner says that the prints match? In effect, the court applied a presumption of reliability to the testimony--or at least enough of a presumption to make a cursorily presented but unquestioned opinion "substantial."

References

• Acosta-Roque v. Holder, No. 11-70705 (Oct. 24, 2012), http://www.ca9.uscourts.gov/datastore/memoranda/2012/10/24/11-70705.pdf 
• http://for-sci-law-now.blogspot.com/2012/03/who-is-nelson-acosta-roque-part-i.html
• http://for-sci-law-now.blogspot.com/2012/06/who-is-nelson-acosta-roque-part-ii.html
• http://for-sci-law-now.blogspot.com/2012/06/who-is-nelson-acosta-roque-part-iii.html