The use of familial DNA has become more common in criminal investigations in New York and throughout the United States. Investigators search the state’s DNA databank for close biological relatives of people whose genetic material was found at a crime scene.
The technology has helped solve cold cases but has also given rise to concerns about privacy and racial discrimination. A group of Black men challenged the practice, arguing they could be targeted for criminal investigation because their biological brothers have DNA information stored because of criminal convictions.
An appellate judicial panel ruled 3-2 to stop the use of familial DNA.
Familial DNA Requires Legislative Authority
The justices in the majority did not rule because of issues specifically with racial discrimination. Their concerns were more about government separation of powers. The opinion impacts only the state’s DNA bank, not private companies helping individuals with genealogy research, such as Ancestry and 23andMe.
“We find that the overwhelming policy issues inherent in authorizing the use and limitations upon familial match searches of DNA information collected in the New York State databank warrant a conclusion that it is an inherently legislative function and that the challenged regulation cannot stand,” wrote Judge Judith J. Gische.
The opinion places the burden at the feet of state lawmakers, saying legislation authorizing familial DNA is needed.
Past Use of Familial DNA
New York’s DNA databank has been in use since 1994, but the state legislature only allowed the collection and searching of samples from those convicted of crimes. Six years later, the state authorized the release of partial-match information to law enforcement but searching specifically for relatives of people in the databank was not conducted until 2017.
That 2017 regulation was adopted by the Division of Criminal Justice Services and the Commission on Forensic Science. Law enforcement must apply to conduct a familial DNA search. The state has approved about 30 applications in the last five years.
The technique was first approved for use in murder, rape, and limited other cases. Familial DNA could also be used to help exonerate someone wrongly convicted.
Lawmakers Reintroduce Bill to Authorize Use of Familial DNA
In response to the court’s decision, State Sen. Phil Boyle reintroduced a bill in May 2022 to establish state policy on how law enforcement agencies can use familial DNA. The bill was originally introduced in 2017 but died in the Assembly.
The measure would allow law enforcement to search the state database, the federal system, and publicly available data through companies like AncestryDNA and 23andMe. If a bill is to be passed, time is running out. The last scheduled day of the legislative session is June 2.
Other states have enacted laws on the subject. In Maryland, cases need a judge to sign off before the investigative technique is used. Only serious offenses like murder and sexual assault qualify. The law in Montana requires law enforcement to first obtain a search warrant before using a consumer DNA database.
The Use of Familial DNA and Its Effect on Criminal Defense
Our attorneys at Collins Gann McCloskey & Barry PLLC, keep a watchful eye on the latest legislation, policies, and rules that affect criminal defense strategy.
Familial DNA is not an exact match, nor does it speak to the circumstances of the case. The genetic profile does not unequivocally determine who is guilty.
Our legal team has the know-how to thoroughly examine all the evidence to identify possible holes in the prosecutor’s theory.
If you are accused of a crime, rely on our experience as both defense attorneys and former prosecutors. Schedule your free initial consultation by calling (516) 218-5131 or sending us a message online.