Jennifer K. Wagner, J.D., Ph.D., is a solo-practicing attorney in State College, PA and a research associate at the University of Pennsylvania’s Center for the Integration of Genetic Healthcare Technologies.
Last month, the Pennsylvania General Assembly voted in favor of a bill that would expand the Commonwealth’s criminal database. PA Senate Bill 775 authorizes law enforcement to begin DNA fingerprinting of individuals upon arrest or charge for certain specified crimes (as opposed to only upon conviction) and authorizes familial searching of the state’s forensic database. After third consideration, the amended version of PA Senate Bill 775 passed by a vote of 42-6. The bill has been referred to the judiciary.
The bill had been introduced in March of 2011 by Pennsylvania Senate Majority Leader Dominic Pileggio, who was later joined by a dozen colleagues (including nine Republican and three Democratic sponsors). It immediately garnered the attention of genetics law scholars, including Penn State Dickinson’s School of Law Professor David Kaye, who submitted a thorough statement (pdf) for the Pennsylvania General Assembly’s consideration.
The bill as passed is significantly different from the original bill in at least one respect. The original version of the bill had a narrow, onerous expungement process. That process required an individual to petition the government to have its DNA sample and profile expunged. This process would have put a considerable burden on arrestees whose DNA sample and corresponding DNA profile had been collected at booking. As originally drafted, expungement could only be granted if the individual established by clear and convincing evidence (a relatively high burden of proof) that (1) the charges were dismissed or never filed, (2) there had been an acquittal of the charges, or (3) inclusion was by mistake.
The amended version (pdf) has made the expungement process automatic in some circumstances, mandating that the individual’s DNA sample, record, and profile be expunged if the:
- conviction has ultimately been reversed and the case dismissed;
- charge leading to the individual’s inclusion in the database has been dismissed with prejudice;
- individual has been acquitted of the charge that led to inclusion in the database;
- individual was never charged for the crime that led to the individual’s inclusion in the database;
- prosecutors have decided not to prosecute the individual for the crime that led to the individual’s inclusion in the database;
- charges were not filed within the statute of limitations; or
- individual has been issued an unconditional pardon for the crime that led to inclusion in the database.
It is notable that PA Senate Bill 775 does not limit familial searching to partial CODIS matches but also explicitly authorizes mitochondrial DNA analysis, Y-chromosome analysis, and “[a]ny other suitable method designed to determine that a crime scene DNA profile originated from a close relative of an individual in the State DNA Data Base.”
Ultimately, PA Senate Bill 775’s authorization of familial searching would distance the Commonwealth from its southern neighbor, as familial searching is prohibited in Maryland. Familial searching, discussed on several occasions here at the Genomics Law Report, is permitted in only a few states (including California, Colorado, Texas, and Virginia). A recently published policy report provides valuable background information for those seeking further information on the topic.