Sunday, June 09, 2013

Getting good policy past the Fourth Amendment

Maryland v King
USSC No 12-207, 3 June 2013 illustrates how interpretations of the Constitution of the United States of America can distort perceptions of what is reasonable search. The Supreme Court split 5-4 over whether a statute was in breach of the Fourth Amendment's prohibition of unreasonable search insofar as it permitted the taking of a buccal swab from a person arrested for a serious offence, for DNA analysis and comparison with samples from the scenes of unsolved crimes.

The opinion of the Court was that this was reasonable and not a breach of the Fourth Amendment.

The dissenters, whose opinion was delivered by Scalia J, reasoned that the Fourth Amendment has always prohibited search without probable cause, and as the legislation in question permitted the search without even suspicion of the commission of an offence other than that for which the person had been arrested, it purported to authorise search without probable cause. The only relevant reason the challenged aspect of the statute allowed the taking of this sample was for comparison with DNA from unsolved crimes.

The majority held that a person who has been arrested may be searched, and that such a search is not based on probable cause but rather on reasonableness. Here the taking of the sample was reasonable because it involved minimal intrusion and the use of the DNA was a proper law enforcement interest. What the statute authorised here was not relevantly different from obtaining the fingerprints of an arrested person.

It is difficult to see how obtaining a buccal swab from an arrested person and using it for DNA analysis and comparison with DNA from unsolved crime scenes could be objectionable. There are competing interests: the arrested person's privacy, and society's need to promote law enforcement.

The privacy interest here could be analysed into two parts. First, the intrusion involved in providing the sample. This is relatively trivial and has little weight. Second – potentially far more important – the risk that a false positive match will be reported in circumstances where the analysis cannot be repeated because the sample from the crime scene is no longer available for further analysis, combined with the circumstance of the person not being able to rebut the false match with robust evidence of alibi. The coincidence of those two circumstances would be highly improbable, and this second part of the privacy interest should also be given little weight.

Society's interest in law enforcement reflects equality under the law. It is unfair that some offenders should go undetected while others have to face justice. In return for obeying the law we are entitled to insist that everyone else obeys the law. It is true that convictions of the innocent threaten equal justice, so the law must ensure they are kept to a minimum and when they occur redress is made. But overall it seems uncontroversial that society's interests outweigh the privacy interests of the arrested person in this situation.

Identification of the better policy is not difficult; the problem for the Court was to make that policy compatible with the Fourth Amendment.

The trend of legislation concerning the taking of body samples for DNA analysis is to diminish privacy rights. For example – and no doubt your own legislature has done this – in New Zealand the Criminal Investigations (Bodily Samples) Act 1995 has, over the years, been amended to increase the range of offences, arrest for which can trigger the taking of a sample. Amendments have also permitted the making of compulsion orders by officials of lesser rank than had originally been required. The general reduction of recognition of individual privacy rights has also occurred in relation to search and surveillance, with the threshold for most searches being reduced and there also being some reduction in the rank of the official who may authorise the activity. We are also authorising our security agency to gather intelligence (spy) on more people within our country than previously.

To clothe these thoughts in respectable garb, one reaches for a book and, seemingly by chance, comes upon Jacob Bronowski's The Ascent of Man (1973). In Chapter 13 he said this:

"It is a tightrope that man walks, between his desire to fulfil his wishes, and his acknowledgement of social responsibility. ... We devise ethical strategies or systems of values to ensure that what is attractive in the short term is weighed in the balance of the ultimate, long-term satisfactions."

It seems that society accepts that individual privacy must increasingly yield to the needs of law enforcement. That is the climate of our times, and reasonable people do not place their own privacy interests above more pressing societal concerns. There must, however, in the context of DNA sampling, be adequate safeguards against erroneous convictions.

There are concerns with legislation that follows this pattern. What if the person was arrested wrongly, or was subsequently acquitted, but his DNA was found to match a sample from an unsolved crime? An innocent person would then have been subjected to the risk of incrimination that should more properly be borne by the convicted. And, more generally, why is this sort of legislation directed at finding matches only with unsolved crimes; shouldn't it also be developed to serve as a check against wrongful convictions of other persons? Can't a DNA sample be used to exonerate as well as to incriminate?