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50 Am. Crim. L. Rev. 109 (2013)
The Genealogy Detectives: A Constitutional Analysis of Familial Searching

handle is hein.journals/amcrimlr50 and id is 117 raw text is: THE GENEALOGY DETECTIVES: A CONSTITUTIONAL ANALYSIS OF FAMILIAL SEARCHING David H. Kaye* ABSTRACT Familial searching in law enforcement DNA databases has been pilloried as a step towards eugenics and corruption of blood and lifelong genetic surveil- lance that is inconsistent with a basic pillar of American political thought. Courts have yet to address the issue fully, but several commentators contend the practice is unwise, unjust, or unconstitutional. This Article examines the more significant constitutional claims. It concludes that although kinship matching should not be implemented simply because it is technologically seductive, neither should it be removed from the realm of permissible law enforcement information gathering on constitutional grounds. In reaching this conclusion, the Article describes the logic of kinship analysis; clarifies the nature of partial-match searching; shows how an advanced system of DNA databases could yield addi- tional, accurate leads in the investigation of both routine and high profile crimes; and explains why this system, if properly implemented, is compatible with constitutionally protected interests of both convicted offenders and their close relatives. CONTENTS INTRODUCTION ........................................... 110 I. FROM KINSHIP ANALYSIS TO KINSHIP MATCHING ................. 113 A. Kinship Analysis with a Suspect ...................... 115 B. Kinship Analysis with a Database: The Two Types of Database Trawls ................................. 118 C. The Efficacy of Kinship Matching ..................... 121 II. EQUAL PROTECTION ................................... 125 A. Racial Discrimination ............................. 125 B. Arbitrary Discrimination ............................ 127 * Distinguished Professor and Weiss Family Scholar, Dickinson School of Law, Graduate Program in Forensic Science, Penn State University. Versions of this Article were presented in 2011 at the 22d International Symposium on Human Identification, the 7th International Society for Applied Biological Sciences Conference in Forensic, Anthropologic and Medical Genetics, and at a faculty workshop at the University of Pittsburgh School of Law. Charles Brenner, Rockne Harmon, David Lazer, Kristin Lewis O'Connor, Jennifer Kristin Wagner, Bruce Weir, Kenneth Weiss, and David Witherspoon commented on part or all of an early draft as did Erin Murphy, who kindly offered especially valuable suggestions and corrections. © 2013, David H. Kaye.

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