Where DNA and law intersect

As any fan of CSI knows, it's amazing what those forensic scientists can do. But as incredible as the feats are thatinvestigators perform with hair, fibers and fingerprints, they will be better in the future.

One day, the police will be able to scan left behind cells for genetic information, such as a person's DNA signature or the likelihood that he or she has a certain disease or personality trait.

Buzz Scherr, a professor at Franklin Pierce Law Center, thinks that such advances are going to lead to increasingly complicated questions about constitutional privacy. He's just won a $50,000 grant from the National Institutes of Health to study the relationship between genetic science, police techniques and privacy rights.

"As the technology continues to develop, as we're going to be able to take smaller and smaller amounts of trace DNA or body cells all over and mine those for all sorts of genetic information, we're going to have to start thinking about things that we don't have to think about now," he said.

The Fourth Amendment of the Constitution limits how the police can search for evidence. The courts have interpreted the amendment to mean, that in many cases, the police need to prove to a judge that there's good reason to believe a search can turn up important evidence of a crime. So, for example, the police can't search your home for a hidden weapon until they've gotten a search warrant.

But judges have interpreted the Fourth Amendment more loosely when it comes to things outside the home or person, where a defendant doesn't expect to have privacy. The police could search a public bus station for a weapon without a search warrant, or they could lift a fingerprint off of a soda can that asuspect used during an interrogation.

In the case of James Dale, who was convicted of raping and murdering 6-year-old Elizabeth Knapp of Contoocook in 1999, the police used saliva he left on a discarded cigarette butt to build their case. Dale had been picked up for violating parole conditions, but the police had no evidence linking him to the killing. All they knew was that he'd lived in the same building as Knapp at the time of the murder.

That probably wouldn't have been enough to persuade a judge to give them a warrant for a blood sample. But DNA that investigatorstook from Dale's cigarette matched crime scene evidence and provided probable cause for them to seek a warrant for more rigorous genetic tests. Ultimately, those tests linked Dale to the murdered girl.

In an ongoing investigation, the New Hampshire crime lab is looking at a water bottle and inhaler used by Edward Earl Dukette, to try and link him to the rape and murder of Kathy Lynn Gloddy of Franklin nearly 35 years ago. A few weeks ago, Dukette walked into a Florida police station and told the police that he might have been involved in the child's death. Dukette has since recanted, but the Florida police have sent several objects that Dukette left in the interrogation room to the police here to see if they can find DNA in his saliva to match semen left behind on Gloddy's body.

In the future, Scherr said, the police may be able to pull DNA from even smaller samples, and they may be able to use those samples to find out increasingly detailed and personal information. In a few years, he said, they will be able to extract DNA from a used coffee cup you threw in the trash, or, perhaps, from skin cells you smeared on a doorknob. With your DNA, they may be able to uncover hints about your physical makeup, personality or health that they could use in court.

Those sorts of traits might invoke another constitutional issue: the Fifth Amendment's protections against self-incrimination. If genetic information can tell the police damning things about a suspect, shouldn't the suspect be able to keep that information to himself?

Scherr's study will draw on law, science and philosophy to consider whether such genetic information deserves special treatment. Under current case law, Scherr said, the police probably wouldn't need a search warrant to test a discarded coffee cup.

"Do we want to view the DNA on that coffee cup as abandoned property? Do we want to think about it as property that we've abandoned, or do we want to think about another paradigm?" he said. "Given that it's genetic information, should we be treating it differently?"

Scherr's grant comes from the NIH's Human Genome Project. Most of the project's money is used to fund scientific and medical research, but since its inception, it has set aside 5 percent to fund research into the ethical, legal and social issues surrounding genetic science.

"We also fund research that looks at sort of broader societal issues, and one set of those issues is how the information could be used or might be used in nonmedical settings," said Jean McEwen, a program director at the project.

Scherr's plan is to write and publish several law review articles on his findings and to speak at a number of academic conferences over the next two years. His hope is that his work will contemplate the constitutional questions surrounding genetic technology before they become commonplace.

"I think it's inevitable that we're going to have the instinct that there's something different about this in the next five or 10 years," he said. "The legal system is always a step behind."