William & Mary Bill of Rights Journal


Mary Graw Leary


This Article addresses touch DNA, chemical analysis of skin traces, and the implications for crime scene investigation, arguing that changes in how trace evidence is analyzed require alterations in the law’s approach to its use. Part I discusses the history of traditional DNA analysis. Part II examines the emergence of touch DNA and related technologies and how they differ from traditional DNA analysis. Part III outlines the specific risks created by the collection and storing of results under the current outdated jurisprudence. Part IV focuses on specific risks to suspects and victims of crime. Part V proposes a legal framework to address these potentially powerful tools and their threat to privacy. In so doing, this Article proposes drawing a distinction between the collection of DNA and cellular materials for identification purposes and a subsequent examination of these materials for other information about the source. The framework adopted by the Supreme Court for cell phone examination in Riley v. California, required a more specific level of suspicion to examine the contents of a cell phone than to obtain it incident to arrest. This Article advocates utilizing this framework in the collection and examination of the even more personal information contained within DNA and cellular evidence. Specifically, it distinguishes between collecting the evidence and routinely testing it for identity and the more invasive examination of the evidence for additional personal information about the source. Before searching this deeply into this evidence for any information beyond identification, the government must establish a higher level of suspicion and obtain a warrant.