Guilty by Association

By Thai Phi Le

In 1953 Francis Crick declared in an English pub that he and fellow scientist James Watson had discovered the “secret of life.” DNA, they said, was structured as a double helix and that finding could reveal a wealth of information about a person’s genetic makeup. The “secret of life” would revolutionize science.

DNA, short for deoxyribonucleic acid, is now used not only in research to study how the human body functions, but also to predict future ailments, help find treatments and cures for diseases, and solve crimes. But with most discoveries come ethical and legal implications.

DNA technology has advanced considerably since 1953, but as its ability to provide detailed personal information continues to grow, so do questions about where society should draw the line in its use. The most recent conversation has turned toward the possible expansion of DNA databases to include all arrestees or, perhaps, all U.S. citizens—a debate that revved up in March when President Barack Obama, in an interview with America’s Most Wanted, expressed support for the possible establishment of a national arrestee database. 

Revolutionizing Criminal Justice
Thirty–four years after Crick’s and Watson’s discovery, Tommy Lee Andrews became the first person in the United States to be convicted of a crime using DNA evidence. He was sentenced to 22 years in prison in November 1987 after DNA from his blood samples matched the DNA from semen found in a rape victim. In 1989 David Vasquez became the first person to be exonerated by DNA evidence, proving that he was not responsible for a murder in Arlington, Virginia. While used successfully in these cases, many—particularly criminal defense attorneys—remain skeptical.

David A. Reiser, counsel at Zuckerman Spaeder LLP and a former criminal defense attorney, recalls the early days of DNA in court. “There was somewhat of a tendency to treat scientific evidence as if it were really scientific. Many of the practitioners of forensic science had really inferior or no understanding of the actual scientific principles they were purporting to apply,” he says. “They were, to the extent, people working for the FBI [Federal Bureau of Investigation]. They often had viewed themselves as part of a prosecution team rather than having even the slightest scientific objectivity.”

Forensic science was only in its infancy, yet jurors often viewed it as a silver bullet. “[Jurors are] very swayed by DNA evidence,” says Simon A. Cole, an associate professor in the Department of Criminology, Law and Society at the University of California, Irvine. “The public probably thinks this is just a machine that you crank and something comes out, and there’s no need to question how the machine works or what comes out of it. The public probably believes that there are never any problems with how that machine works.”

The first case to challenge “the machine” was People v. Castro in 1989. Peter J. Neufeld and Barry C. Scheck, now cofounders of the Innocence Project, successfully limited the prosecution’s DNA evidence by demonstrating that the private laboratory that tested the samples failed to work under accepted scientific standards needed to produce reliable results “within a reasonable degree of scientific certainty.”

More egregious problems also began cropping up across the nation, forcing people to question the reliability of both DNA evidence and those who test it. Perhaps the most famous example is the O. J. Simpson case. The highly publicized trial in the mid-1990s cast a negative light on the methods of the Los Angeles Police Department. Prosecutors put experts on the stand to explain that the infamous “If it doesn’t fit, you must acquit” glove found at the crime scene contained DNA from Simpson, as well as of victims Nicole Brown Simpson and Ronald Goldman. The defense team, however, questioned police collection and testing methods. They also successfully attacked the credibility of Detective Mark Fuhrman and argued that he may have planted the glove to frame Simpson. Despite strong DNA evidence, Simpson eventually was acquitted of murdering both Brown and Goldman. 

Other cases include an independent audit of the Houston Police Department’s crime lab in 2002 that uncovered years of sloppy work, undertrained staff, poor quality control, misleading “expert” testimony, and a failure to follow many FBI guidelines. In West Virginia, a 1993 investigative report revealed that Fred Zain, the state’s forensic expert and star witness for the prosecution, repeatedly lied on the stand, putting 134 convictions in doubt.

“Promoters of forensic DNA testing have, from the beginning, claimed that DNA tests are virtually infallible,” wrote William C. Thompson, also a professor at the University of California, Irvine, in his 2008 paper “The Potential for Error in Forensic DNA Testing (and How That Complicates the Use of DNA Databases for Criminal Identification),” published by the Council for Responsible Genetics. “Although generally quite reliable [particularly in comparison with other forms of evidence often used in criminal trials], DNA tests are not now and have never been infallible. Errors in DNA testing occur regularly. DNA evidence has caused false incriminations and false convictions, and will continue to do so.” 

Despite doubts, DNA continued to become a powerful tool for law enforcement and attorneys on both sides. In 1994 the FBI established a national database called Combined DNA Index System (CODIS), which stores each state’s database into a national computer network. By 2002, a survey by the U.S. Department of Justice reported that DNA testing was used in two-thirds of investigations and trials by U.S. chief prosecutors. As of June 2010, there were 8,483,906 offender profiles (samples from convicted individuals) and 324,318 forensic profiles (unidentified samples from crime scenes) stored in CODIS.

District of Columbia Sets Precedent
The value of DNA evidence was no more apparent than in Washington, D.C., where it played a crucial role in United States v. Jenkins, a murder case and one of the first “cold hit” cases in the nation. A cold hit refers to the method of running DNA through a database without any investigative leads. At that time in 1999, Virginia had its own offender database that the U.S. Attorney’s Office used.

Assistant U.S. Attorney Michael T. Ambrosino, who worked on the case, still vividly remembers the details. Pulling out a foam replica of the murder victim’s head that was used during trial, Ambrosino points out the numerous pins scattered all over it. “Now [Dennis] Dolinger was stabbed in his head 25 times. The pins were all placed there by the medical examiner who testified. These are all the stab wounds in his head. This particular one penetrated his brain stem. When you sever the brain stem, life ceases instantaneously. You drop dead.”

Ambrosino goes on to describe the crime scene. After his brain stem was severed, Dolinger died in a pool of his own blood in the basement. From his body, a trail of blood ran throughout the ransacked house and continued out the door. Among evidence recovered from the crime scene were a pair of bloodied jeans in the basement and a shirt in the upstairs exercise room.

A theory began to form. The detective hypothesized that blood stains on the shirt indicated the victim was held in a headlock, while stains on the knee area of the jeans pointed to the possibility that the killer had fallen into the pool of blood. From the amount of blood in the bathroom, the prosecution believed the murderer had cut himself while stabbing Dolinger with a screwdriver, and then went to wash off and change before fleeing the home.

“Through DNA testing, we wanted to verify our whole theory of the case,” Ambrosino says. “It turns out the victim’s blood was where we suspected it on the clothing. He was in a headlock. His head was bleeding. It’s all over this portion [points to armpit area] of the killer’s shirt, on the knee [portion of the jeans].” The DNA test, however, disproved one key part of their theory: the suspect. 

Police already had Stephen Watson, a 110-pound heroine addict with a rap sheet, in custody. Watson was brought in because he was caught using Dolinger’s credit cards fewer than 24 hours after the murder. But Watson was not the murderer they were looking for. Says Ambrosino, “The other blood—the blood we would expect to attribute to the killer—was not Stephen Watson’s.”

With Watson ruled out as the murderer, they decided to run the DNA profile through Virginia’s new database. “We got a hit. It was one of the first cold hits in the country. There was a big controversy back then,” Ambrosino recalls. “The Public Defender Service mounted a big effort to suppress the evidence.”

The defense argued that there was no consensus in the scientific community on how to calculate the significance of a DNA profile found through a cold hit as opposed to a one-on-one comparison. The U.S. Attorney’s Office, however, countered that while there were various approaches, all were scientifically valid.

“To our shock, Judge [Rhonda Reid] Winston agreed with them and she suppressed our DNA evidence,” Ambrosino says. The prosecution went up to the D.C. Court of Appeals, which reversed the lower court’s ruling a year later. “A lot of other courts around the country cited [Jenkins] as precedent or for guidance. That became the law of the land for us,” he says.

While the evidence was ruled admissible, Ambrosino and the team of prosecutors spent seven years litigating the case. “Our primary pleading on DNA was about 140 pages, with attachments and affidavits from renowned people from all over the world. I think I remember counting something like 12 to 14 motions that the defense had filed on various DNA issues in the course of that case,” Ambrosino says.

In the end, Raymond A. Jenkins, the Virginia man who came up during the cold hit, was convicted. Using the hit as a lead, police investigated further and were able to prove that Jenkins talked to others about the killing and also had Dolinger’s jewelry in his possession.

“The amazing thing about the DNA in that case is that it exonerated Watson. It helped us uncover the person, and we later got very compelling evidence as a result of where the DNA took us,” Ambrosino says.

Casting a Wider Net
More than two decades after DNA was first introduced in court, technological advancements and more thorough training for forensic scientists and lab technicians have vastly improved the integrity of DNA evidence. The government continues to spend money on ways to reduce backlogs of DNA tests and to create a more robust system. As a result, the Innocence Project, a nonprofit dedicated to exonerating individuals wrongfully convicted through DNA testing, has reported 258 postconviction DNA exonerations in the United States since 1989. According to the FBI, CODIS has produced over 120,300 hits that assisted in more than 117,800 investigations as of June 2010.

While now widely accepted as fairly credible evidence and a strong law enforcement tool, the move to expand DNA databases has garnered both fierce opposition and steadfast support. For advocates, there are two schools of thought on database expansion: A national database that includes those arrested but not convicted of a crime, or a universal one with everyone submitting their DNA.

According to the Duke Institute for Genome Sciences & Policy, 23 states, including Maryland and Virginia, already have expanded their DNA databases to include people who have been arrested, but not necessarily convicted of a felony offense. Former President George W. Bush paved the way for these expansions by signing the DNA Fingerprint Act of 2005, which authorized the collection of DNA of any arrested individual by a federal police agency.

In Science We Trust?
Among top concerns toward an expanded database is that despite progress made in DNA technology, collection and testing issues remain. “The science itself is good,” criminal defense attorney David Benowitz says. “You’re still depending on the same police officers and technicians doing the processing and collection, and that’s where the problem is.”

Peter Newsham, assistant chief of the Investigative Services Bureau of the District’s Metropolitan Police Department (MPD), counters Benowitz’s argument. “People in the United States have been suspicious of law enforcement for a very long time,” he states. “There’s a lot of fear out there about the reliability or objectivity of DNA analysis by police departments in particular. In the District of Columbia … the defense can always go out and have it tested by an independent lab.”

The automation of many lab techniques and the development of strict quality control guidelines also have decreased lab errors. There have been improvements in robotics. A technician can attach barcodes to the sample and automate the extraction, quantization, amplification, and analysis, notes forensic molecular biologist Daniele Podini, a professor at The George Washington University. In fact, some systems can interpret the results with minimal human interaction.

But because medical equipment is very expensive, scientists usually conduct the majority of analysis. “Humans make mistakes by nature,” Podini acknowledges. “There’s no lab that’s never going to make a mistake, but there’s a series of review processes that tend to minimize the error…. I have faith in my fellow scientists that they will follow the rules.”

Both Cole and Thompson, the University of California professors, do not fully share Podini’s faith. They believe there is a great potential for error through biased interpretation of samples and laboratory contamination. “Laboratory contamination has always been an issue and continues to be an issue,” Cole says. Affirming Cole’s statement, Thompson has documented dozens of cases of cross-contamination at various laboratories, which often involved unrelated samples in a lab accidentally mixing with another.

In one such case in Australia, the DNA of a mentally challenged woman who was allegedly sexually assaulted was sitting near the DNA sample from a murdered toddler. In his 2008 paper Thompson asserted it was not pure coincidence that the unknown DNA found on the toddler matched that of the woman who “lived hundreds of miles away and who, by all accounts, had never left her own village.”

“Contamination is possible and it will occur at some point, but laboratories—especially accredited laboratories—have implemented procedures to identify when the contamination occurs,” Podini says. The accreditation process requires a series of controls and tests to determine not only how often they contaminate, but also when. If a contamination does happen, analysts are able to identify it as the results are being produced.

Biased interpretation by a forensic expert is much harder to prove. Cole says DNA analysts must not come in with a theory of who committed the crime. “You don’t want them to be told by the police who it is they want the DNA to incriminate, and then they interpret ambiguous information in a way that’s consistent with the police’s theory,” Cole adds.

While Ambrosino acknowledges the possibility of biased testimony, he asserts the objectivity of experts in the overwhelming majority of cases. “The analysts are not advocates—they’re removed from that whole process. They oftentimes exonerate people. They oftentimes inculpate people. They’re not part of the investigative team. They’re dispassionate on how they analyze each piece of DNA evidence,” he says. Forensic experts caught fixing evidence face severe repercussions—job loss, criminal prosecution, and potential shutdown of an entire laboratory.

The FBI weathered its own DNA scandal in the early 2000s, although there was no evidence of corrupt conduct. In April 2002 the FBI discovered that over a span of two years, Jacqueline Blake, a PCR biologist for the agency’s lab, failed to process the negative controls in 90 of 92 cases. Without the negative controls, the lab examiner could not determine whether any of the samples had been contaminated, which rendered all of Blake’s findings invalid. Retesting has proven that she was accurate, but the FBI’s credibility took a hit.

To question authority is no longer news, but Thompson argues that with DNA database expansion, planting of evidence by criminals will pose a greater threat. “[T]here are other items besides semen that might be used to plant an innocent person’s DNA at a crime scene. Clothing the person wore, a cigarette the person smoked, a glass the person drank from could all, if placed at a crime scene, create a false DNA link between an innocent person and a crime,” he asserted in his paper “The Potential for Error in Forensic DNA Testing.” “If someone plants your DNA at a crime scene, it might throw police off the trail of the true perpetrator, but it is unlikely to incriminate you unless your profile is in the database.”  

While Cole recognizes the increased risk of evidence being planted, he hesitates to conclude that there should be major cause for concern. “One always has to be careful about attributing that much rationality to criminals who aren’t generally thinking through what they’re doing. But I suppose with the larger database, you’d have a higher probability that whoever you were targeting [to incriminate] would actually be in the database and would be discovered. The same would go for police who are trying to frame someone,” Cole says.

Fueling the Racial Divide
Critics believe that an arrestee database could intensify the racial divide in the country. “It seems pretty clear that an arrestee database would exacerbate the racial inequalities that already exist in the convict database,” according to Cole, referring to the number of crimes committed by minorities compared with overall population statistics.

As executive director and founder of Break the Chains, Deborah Small hopes to reform drug policies to end what she calls a disproportionately negative effect on minority communities. “When you have the police having the ability to collect information on people, it means that your database is going to be racially skewed in the same way that law enforcement is [already] racially skewed,” she says. Small believes an expansion would allow police to target specific ethnicities or possible illegal immigrants, arrest them, and then store their DNA in the databases even if these individuals are eventually found not guilty of the crime. Once their DNA is in the database, innocent minorities would have a higher probability of being wrongfully implicated in another crime, Small adds.

And despite having the right to independently test DNA, many minority defendants would struggle to afford DNA testing, aggravating an already growing problem of access to justice. “The big problem now—at least in the criminal arena—is that in most jurisdictions, indigent criminal defendants have very limited access to DNA testing, even before trial. It’s very expensive,” notes Reiser, the civil and criminal litigation expert at Zuckerman Spaeder.

Assistant U.S. Attorney Ambrosino disagrees that a DNA database expansion would lead to an increase in wrongful convictions. With more information comes greater chances to exonerate the innocent, he says. Ambrosino believes an arrestee database would be more helpful than harmful.

“While it’s true that there may be a disproportionate number of African Americans in the database, there’s also a disproportionate number of African Americans that are victims of crime in the District. I think those victims will want the police to diligently investigate and catch those killers,” he says. “It’s not racial profiling. It’s just good investigative technique. It’s following where the evidence leads. It’s not racially or ethnically motivated, which obviously would not be something any component of the Justice Department would condone.”

Despite concerns on racial inequalities, Cole concurs that it is possible DNA testing could help alleviate questionable police practices that have been implicated in previous wrongful convictions. “There is an argument to be made that the more we use forensic science, especially DNA testing, and the less we rely on other things that police have traditionally used, in a way we may well be decreasing the likelihood of wrongful convictions,” Cole says.

Can We Afford It?
Opening the databases to include everyone in the country negates the issue of racial fairness, but it then raises the question of whether the government even has the resources to implement such a large system.

Tania Simoncelli, former science advisor for the American Civil Liberties Union’s (ACLU) Technology and Liberty Program, addressed this problem in her article “Dangerous Excursions: The Case Against Expanding Forensic DNA Databases to Innocent Persons,” published in 2006 by The Journal of Law, Medicine & Ethics. Simoncelli wrote that some members of law enforcement worry that money spent to expand the databases would take away from the resources needed in their departments to fund other critical police programs.

Jurisdictions are already struggling to keep pace with DNA samples now in custody. Across the country, some labs face significant backlogs of DNA samples. Rape and homicide kits are sitting idle, possibly delaying numerous criminal proceedings. At the MPD, Newsham says the crime lab has its own backlog of more than 400 cases, but he believes it will be cleared by the end of the year when the lab will have eight full-time DNA examiners on staff. The MPD’s backlog, however, was created as the police department was transitioning from using the FBI’s lab to establishing its own. The crime lab became fully functional in September 2009 and will move into a new building by the fall of 2012.

The FBI has more than 3,200 untested forensic DNA cases and admits to taking between 150 to more than 600 days to process samples despite a goal of only 60 days. The FBI’s reasoning? Lack of staff and funds. A report released by the Justice Department’s Office of the Inspector General in August found that part of the reason for the backlog was federal legislation has expanded the types of cases in which to collect DNA. So while the amount of samples to be tested has grown, the resources have not followed suit.

Unlike the FBI and larger jurisdictions such as the District, other labs may have a harder time keeping up. “Many labs cannot afford infrastructure improvements that would help them keep apace with testing demand,” Simoncelli wrote. And the demand would grow exponentially if DNA databases are expanded. Testing the entire nation would cost millions of dollars, she stated. “A conservative estimate of $50 per sample indicates that to test the entire population of arrested individuals in the United States would cost $670 million per year.” This does not take into account other overhead costs, including staff salaries, equipment, and rent for laboratory space.

Small says any government money funneled toward creating a universal database would be a misallocation of resources when so many states continue to dig themselves out of the financial crisis.

Podini agrees: “It would cost a lot of money. I wouldn’t want my taxes to go there because I think the great majority of the people are not criminals.” He does believe, though, that money should be spent trying to reduce backlogs, optimizing and standardizing analysis methods, and creating proficiency testing.

Big Brother Wants Your DNA
The expansion of DNA databases also raises the issue of an individual’s right to privacy. The late Senator Edward Kennedy once said, “It is difficult to imagine information more personal or more private than a person’s genetic makeup.”

“DNA is tremendously revealing about an individual, and it’s becoming more revealing all the time,” says Jay Stanley, director of public education for the Technology and Liberty Program at ACLU.

While advocates sometimes compare DNA profiles to fingerprints, Simoncelli disputes that link. She argues that fingerprints can only be used for identification, whereas DNA samples can expose everything about an individual, from physical characteristics to disease predisposition. “Such information could be used in sinister ways and may include things the person herself does not wish to know,” she asserted in her paper “Dangerous Excursions.” “Repeated claims that human behaviors such as aggression, substance addiction, criminal tendency, and sexual orientation can be explained by genetics render law enforcement databases especially prone to abuse.”

Ambrosino, a proponent of expanded databases, thinks the danger will not come from law enforcement, as long as people are unable to access the original samples. The information in CODIS, he says, is not very informative. Some refer to the samples as “junk DNA.”

Podini explains further: “The regions we look at have no meaning. As of now, a DNA profile—the regions that are analyzed for forensic purposes, for human identification—doesn’t provide any other information regarding the individual. The only thing a profile can be used for is to uniquely identify an individual or his or her identical twin.”

However, ACLU’s Stanley believes laboratory practices leave too much room for the possibility of an invasion of privacy. Many labs retain physical samples, which would allow authorities to go back and examine them for all the attributes that DNA can reveal. Laboratory storage policies vary across the board. The District’s MPD crime lab is one that saves samples. “By and large, we have to keep them,” Newsham says. “It becomes evidence in the case, and [during] the criminal proceeding, they may need to take a second look at it. Sometimes, the defense will want to do their own independent testing. We hang on to it for what seems like forever.”

A Moving Line
In creating the original offender database, supporters reasoned that convicted criminals have lost some of their privacy rights—a basis that is widely accepted in the United States. As the possibility of expanding the database grows, people argue that the benefits to society in solving crimes outweigh an invasion of privacy.

“On one level, that’s certainly true. There’s always a balancing act between the benefits to society and individual rights to privacy,” Cole says. He contends that police can currently obtain search warrants when they have strong evidence against an individual. “But [in] our society, we do not and never have said that just because something may solve crimes, that ends the discussion … we have a heavy presumption that the police don’t invade our privacy, they don’t look over your shoulder, they don’t scan your intimate bodily characteristics without evidence that that would be helpful in solving crime.”

With the ability to cull more and more information from DNA, the line of acceptable behavior is blurred. “The line should be drawn at some point, but where to draw the line should be decided by a committee of different individuals from different backgrounds (scientists, lawyers, politicians, sociologists, etc.). The line can shift according to the necessities of society,” Podini says.

For Simoncelli, expanding a DNA database—both arrestee and universal—clearly steps over the line. In her paper she contends that an expanded DNA database would violate a citizen’s Fourth Amendment rights, which is a safeguard against unreasonable search and seizure. “[T]he proposition that the government’s ‘special needs’ outweigh the privacy interests of innocent persons seems beyond the pale, as a matter of Constitutional principle. While it is plausible that the courts uphold the forcible taking and analysis of DNA of persons arrested on the basis of some diminished expectation of privacy while in confinement, the permanent retention of that DNA cannot be justified on this basis unless a suspect is convicted of a crime,” she wrote. As for a mandatory universal DNA, Simoncelli believes that would be unconstitutional.

Balancing Good and Bad
Privacy issues aside, would an expansion of DNA databases actually help law enforcement and the legal community sentence more criminals? The United Kingdom, which has the largest database in the world, has not necessarily seen an improvement in crime statistics after it expanded its database in April 2004 to include anyone arrested of a “recordable” offense. These offenses include prostitution, begging, and drunkenness. Despite having more than 5.5 million DNA profiles on file, the database has played a role in helping solve a mere .3 percent of crimes, according to a March 2010 report by that country’s House of Commons Home Affairs Committee. 

Since its introduction as a crime-solving tool for police in the United States, Newsham says DNA testing has been a powerful means of catching criminals in the District. Critics argue, however, that expanding the databases would essentially make it more difficult and laborious for law enforcement to solve crimes.

“There are always benefits from a purely utilitarian point of view. The more people you add to the database, you’re going to prevent some crimes because some people will be detected earlier,” Cole acknowledges. “[However,] as DNA tests become more and more sensitive, they’re going to start picking more and more people’s DNA at crime scenes. The fact that your DNA is at a crime scene may not necessarily prove that much.”

And with excess DNA, litigation cases could go through the roof, says Benowitz, the Washington, D.C.-based criminal defense attorney. “You’d end up seeing so much litigation and so much controversy over the way things are collected and how you decide what to collect and what is swabbed for DNA. At a murder scene, why didn’t you swab the hat that was there? Why didn’t you swab the pack of cigarettes? Why did you only swab this? Why didn’t you collect this piece of evidence?”

Simoncelli makes the same argument in her article, writing, “Ultimately, the addition of scores of innocent persons to DNA databases could undermine criminal investigations by encouraging valuable time and resources to be spent typing DNA from people who will never commit a crime, combing crime scenes for DNA when there is none to be found, and chasing down spurious hits.”

She also worries that an expansion would lead to increased frequency of police following suspects around, waiting to gather abandoned DNA evidence. In a 2007 article she cowrote with Sheldon Krimsky, titled “A New Era of DNA Collections: At What Cost to Civil Liberties?” Simoncelli argued, “‘[A]bandoned’ implies a knowing intent to part with an item. People abandon items they no longer wish to own or carry around. But DNA is not so much abandoned as it is inadvertently and continually shed from people’s bodies in the form of skin cells, saliva and hair samples. Short of walking around in the world in a plastic bubble suit, it would be virtually impossible to refrain from shedding DNA.”

Using that investigative method, though, is often unrealistic, Ambrosino says. “I don’t think we have the time or resources to do that…. Advocates are always thinking of the worst-case scenario,” he says. “If police are expending that time and resources on it, then [these suspects have] done something very serious, and I’m happy they’re following them around because I think most people in the community really want those types of people off the streets.”

Newsham contends that while investigators do use that technique—which falls within their rights under the rules established by the Fourth Amendment in regards to search and seizure—it is only one of many tools for solving crimes.

Ambrosino also believes that increased use of DNA would actually improve police techniques and be more helpful during trial because there would be less dependency on eyewitness testimony. “There are circumstances under which identification is rock solid…. You know it’s not a stranger killer. I think it’s very hard for witnesses when they’re under an enormous amount of stress and they have a split–second to look at somebody. It’s very hard to make identifications at times, which is why a lot of times a witness will be telling us, ‘Well, it was a black male with dreadlocks, but I didn’t really get a good look at his face.’”

Having DNA evidence could also strengthen many of Ambrosino’s cases in the District. His witnesses tend to be drug addicts or dealers, leaving the jury skeptical of their accounts. DNA, on the other hand, is completely unbiased, Podini says. “You listen to the witnesses and they give you a description of the person. This description is filtered by their own experience, by their own state of mind at that specific moment, and maybe by their own prejudices. [DNA] would be based solely on scientific evidence.” DNA has no ulterior motive; its sole purpose is to identify the person who left his or her DNA at the crime scene.

While Benowitz thinks an arrestee database is an “extremely inappropriate intrusion,” he believes there would certainly be benefits, including the exoneration of some individuals who were originally convicted using eyewitness testimony. “You’d probably see eyewitness identification evidence being disregarded,” Benowitz adds.

A Tool for Both Sides
Jurors’ skepticism of eyewitness testimony does not transfer to DNA evidence. Everyone interviewed agrees that jurors can be swayed by DNA presented at trial. “It probably comes off as extremely credible evidence, extremely strong and persuasive evidence to them,” Cole says. He, however, warns that such is actually a cause for concern. “They’re very poor at making the kinds of subtle distinctions that may be necessary for interpreting problematic DNA evidence,” he says.

Podini admits that errors can occur when there are very low amounts of DNA, which makes it difficult to interpret a profile that is generated. “It’s a mistake to consider anything infallible. It’s not scientific,” he says. “But DNA is a very valuable source. Rigid protocols have been developed to properly interpret the data, and they always are very conservative. If you’re not sure or it doesn’t fit your validation parameters, you’re not going to call that region.” 

Ambrosino says prosecutors have a responsibility to acknowledge the limitations and not allow experts to overstate the evidence. When it comes to forensic sciences, DNA is one of the most reliable; the issue tends to be found more often in testimony regarding hair and fiber evidence.

A significant change since DNA was first introduced at trial is that it is no longer deemed as a tool only for the prosecution, Reiser of Zuckerman Spaeder says. “The last 10 or 15 years have shown that it is an incredibly powerful tool. The use of DNA testing on even very old cases to exclude people and, therefore, exonerate people, especially death penalty cases, has really revolutionized how people perceive it,” he says. “It’s much more two-sided than it was perceived early on.” The defense no longer sees it as a device for the prosecution to “oversell” forensic evidence, especially as jurors become more knowledgeable about the latest advances.

Benowitz also has noticed that over the years jurors have come to expect DNA testing whenever possible. He litigated a drug case recently where jurors were persuaded by the fact that government had not attempted to conduct any DNA tests on packages found in the basement where the drugs were discussed. 

Guilty Until Proven Innocent?
Dissenters argue that the very idea of expanding DNA databases crumbles the pillar of the justice system: the presumption of innocence. “The rationale for expanding from convicted to arrestee is pretty weak. Being arrested does not mean that you’ve been convicted of a crime. You’re presumed innocent in our society, so there’s no real justification for including someone who’s been arrested or not convicted,” Cole says.

Ambrosino disagrees: “I think what the expansion of the databases will do is help us meet our burden. I think it’s every citizen’s interest to expand databases. I think it’s in the interest of those who are falsely accused. I think it’s in the interest of those who want to be exonerated, who have been wrongly convicted…. It’s in the interest of the victims’ families, in the interest of the victims themselves, and in the interest of society as a whole to expand these.”

D.C. Bar staff writer Thai Phi Le wrote about the virtue of a two-wheel commute in the May 2010 issue of Washington Lawyer