Jennifer Graddy

Deoxyribonucleic acid (“DNA”) databases are beneficial in many aspects. Police can use samples found in a DNA database to match samples found at crime scenes. Police also can match evidence and DNA samples found at different crime scenes to establish a link between different crimes.² States are authorized to collect DNA samples from their citizens under certain circumstances or with certain statutory limitations. Missouri's DNA profiling system and current Missouri law in this area will be discussed in the analysis section of this article. DNA databases are useful in solving past crimes that otherwise may remain unsolved.³ DNA databases also can be used in solving future crimes.⁴ For example, DNA samples taken from prisoners and entered into a DNA database proved useful in solving a Virginia case in which a woman was brutally attacked and raped in her home. Police had no physical description of the attacker, but the DNA sample in the database matched a sample of semen found at the scene of the crime. That sample helped police identify and convict a suspect who is now serving a life sentence in conjunction with an additional 30 years.⁵

DNA databases are also useful in exonerating suspects and those wrongly convicted.⁶ For example, in 1991 a North Carolina man was arrested for rape and sentenced to 35 years in prison.⁷ In 1997, however, DNA from the crime scene was matched to a Florida man who had served prison time on aggravated assault and drug convictions.⁸ The state of Florida required the man to provide a blood sample as a condition prior to his release from prison.⁹

Moreover, DNA databases can provide new leads and help solve “old and cold” cases when police have few leads and no real suspects.¹⁰ It is estimated that approximately 30% of sexual assault victims do not know and cannot identify their attackers.¹¹ In cases such as these, investigators are left without individual suspect profiles against which to compare DNA evidence collected from the victim or the crime scene.¹² However, “[m]iniscule amounts of DNA recovered from a crime scene can be used to link an otherwise [unidentified] suspect to the crime.”¹³ A simple search of a DNA database can help police solve cases that remain open “in police files for years with few leads and no real suspects.”¹⁴ For example, the state of Florida arrested a man in June 1999 for six sexual assaults in Jacksonville between 1995 and 1998.¹⁵ Arrests made in old cases are both rewarding for the police who investigate these crimes and extremely important to the victims.¹⁶

DNA evidence is more reliable than eyewitness testimony and decreases the current dependence on eyewitness testimony.¹⁷ For example, the Department of Justice reviewed 28 cases of people wrongly convicted of sexual assault and later exonerated by DNA evidence. With the exception of six homicides included in the study, each case involved significant reliance on eyewitness testimony by the victim.¹⁸ Eyewitness memory or other circumstantial evidence is no longer as critical with the availability of DNA evidence.¹⁹ Even when the memory of a witness is no longer fresh or if the witness becomes inaccessible, DNA serves as the ultimate witness by conclusively identifying the perpetrator, tying him to the scene, or by exonerating the accused person.²⁰ In sum, DNA evidence is superior to any other type of evidence because of its accuracy and longevity, thereby rendering claims of “stale evidence” without merit.²¹

Prisoners' knowledge that their DNA samples are in a database, readily available to identify them, may deter them from re-offending after their release. A strong argument can be made that a universal DNA database would deter criminals, who are unlikely to commit crimes knowing that a simple search of a DNA database is nearly 100% accurate in conclusively identifying an offender.²²

The final benefit of DNA analysis is the increased likelihood that defendants will enter guilty pleas when confronted with DNA test results, given that the government will have a stronger case against the defendant with positive DNA results.²³ The increased guilty pleas by defendants may result in victims reporting rapes to the police more often.²⁴ One current deterrent to victims reporting a rape to the authorities is the additional trauma they suffer by testifying in court.²⁵ However, the increased probability of defendants entering guilty pleas when confronted with positive DNA results may encourage victims to report more crimes in the future, as well as save courts time and money.²⁶ The range of crimes included in the state DNA database statutes has expanded and continues to increase from the purposes of identifying and reducing sexually-related crimes.²⁷ Over time, DNA databases will likely include samples from a greater range of criminal convictions. Fingerprints are currently routinely taken from arrested suspects as well as convicts, and it is conceivable that the same will occur with regard to DNA samples in the future.²⁸

II. Analysis

A. States Are Authorized to Collect DNA Samples From Their Citizens

States are authorized to collect DNA samples from their citizens under certain circumstances or with certain statutory limitations. Virginia became the first state to employ a criminal DNA database in 1989.²⁹ Today, all 50 states have legislation requiring DNA testing for specific classes of convicted offenders.³⁰ Every state collects DNA samples from convicted sex offenders; beyond this, however, the states differ significantly.³¹ Most states require DNA samples from only a narrow group of felons, such as those convicted of homicide and sexual assault.³² Currently, four states — including Alabama, New Mexico, Virginia, and Wyoming — require DNA samples from all convicted felons.³³ A few states even require the collection of DNA samples for some classes of misdemeanors.³⁴ Idaho requires collection of DNA samples for offenses such as robbery, aggravated arson, and racketeering in addition to sexual abuse, rape, and murder.³⁵ North Carolina lists, among others, the burning of a mobile home and the malicious throwing of corrosive acid or alkali in its list of crimes included in the state DNA database law.³⁶ Louisiana has the most inclusive database and mandates the collection of DNA samples from any person arrested for felony sex offenses and other enumerated offenses.³⁷ In addition, Arizona, Kansas, and Oregon require juveniles to submit DNA samples if found delinquent for certain sex crimes, and these DNA samples then can be used in investigations once these juveniles reach the age of majority.³⁸

Most states require prisoners to give a blood sample for analysis as a condition of parole or release from prison.³⁹ Many state statutes require retroactive application to an individual convicted in one state when parole or probation supervision is transferred to another state.⁴⁰ Even when an offender is not sentenced to prison, some state statutes mandate submission of a DNA sample as a condition of an offender's probation.⁴¹ In Illinois, deliberately delaying or impeding the collection of a DNA sample from a required offender is punishable as a Class A misdemeanor.⁴²

B. Courts Consistently Have Held That the Collection of DNA Samples is Reasonable Under the Fourth Amendment of the U.S. Constitution

In the first case to address the constitutionality of mandatory DNA sampling of non-violent offenders, the Fourth Circuit ruled in 1992, in Jones v. Murray, that the Fourth Amendment is not violated when blood samples are taken from convicted felons for inclusion in a state police database.⁴³ In Jones, six inmates in the custody of the Virginia Department of Corrections argued that DNA testing constituted an unreasonable search and seizure of their bodies without “individualized suspicion” that they had committed a crime and therefore violated the Fourth Amendment.⁴³ The Fourth Circuit found that convicted felons lose the right to privacy from routine bodily searches as well as searches of their jail cells.⁴⁵ Furthermore, the Fourth Circuit held that once a suspect has been arrested, the state develops a legitimate interest in his identity and connection to the crime at issue, as well as a means of solving future crimes.⁴⁶ In Jones, the court ultimately determined that the government interest in preventing future crimes through DNA analysis outweighs a prisoner's lessened expectation of personal privacy.⁴⁷ Thirteen years earlier, the United States Supreme Court held that prisoners have a much lower expectation of privacy than the general population.⁴⁸ The Supreme Court held that routine “shakedown” searches of prisoners are reasonable because prisoners have no reasonable expectation of privacy in their jail cells.⁴⁹ In the same case, the Supreme Court also held that routine, visual body cavity searches of prisoners are not unreasonable.⁵⁰ More recently, an Illinois state court held that the DNA collection procedure is a minimal intrusion of privacy and bodily integrity.⁵¹

“[T]he government has greater authority to conduct searches when there is a 'special need,'” such as a “governmental interest [is] at stake.”⁵² In 1993, the Supreme Court of Washington applied the stricter standard for the special needs test.⁵³ In State v. Olivas, the court held that requiring involuntary DNA tests from felons for inclusion in a DNA database for the “future prosecution of recidivist acts does not violate the Fourth Amendment['s]” prohibition against unreasonable searches and seizures.⁵⁴ The seven defendants in State v. Olivas pleaded guilty to their respective charges and, as a result, each defendant was required to submit to a DNA test.⁵⁵ The defendants argued that DNA testing “constitutes an unconstitutional warrantless search and seizure without probable cause.”⁵⁶ In response, the state acknowledged that, while a DNA test constitutes a “search,” it “is a lawful exercise of police power” that is reasonably necessary and substantially related to preventing a future crime.⁵⁷ The Supreme Court relied on two Virginia studies wherein 62.5% of all felons are “arrested for [another] felony or serious misdemeanor within 3 years of a release” from prison, in addition to recoverable DNA being left at the scene of a violent crime 30% of the time.⁵⁸ The court concluded that the government interest in deterring recidivist crime by implementing a DNA database was a need “beyond normal law enforcement” and, therefore, qualified as a “special need.”⁵⁹

In sum, after balancing the limited privacy rights of convicted felons to be free from unjustified government intrusion against the special needs that the government has for DNA samples, the Olivas court found no search violation under the Fourth Amendment.⁶⁰ Similarly, the Second Circuit held that Connecticut could require a man imprisoned for a sexual offense to provide a blood sample based upon the special needs exception.⁶¹ A Massachusetts court held that the special needs analysis extended to the collection of DNA samples from arrested suspects.⁶² That court compared the collection of DNA to “the taking and storing of fingerprints, photographs, and other criminal records.”⁶³

C. The Collection of DNA Samples is Not Cruel and Unusual Punishment Under the Eighth Amendment

Courts reject the theory that forcing a prisoner to submit to DNA testing is cruel and unusual punishment.⁶⁴ In 1995, a Minnesota court held, in Kruger v. Erickson, that when the drawing of blood is conducted by “a trained technician . . . in accordance with the medically acceptable BCA procedures,” “the use of a needle is hardly the cruel and unusual punishment contemplated by the Eighth Amendment.”⁶⁵

D. Compelled DNA Testing Does Not Violate a Criminal Defendant's Constitutional Right Against Self-Incrimination

Requiring sex offenders to submit to DNA testing poses the question of whether compelled testing violates a criminal defendant's constitutional right against self-incrimination.⁶⁶ In Schmerber v. California, the United States Supreme Court held that a defendant's constitutional right had not been violated by a compulsory blood alcohol test and its admission into evidence.⁶⁷ The Schmerber Court ruled that, while the Fifth Amendment prohibits the state from compelling a suspect to give evidence of a testimonial or communicative nature, it does not prohibit the state from requiring a suspect to provide “real or physical evidence.”⁶⁸ In Schmerber, the Court held that a compelled extraction of a blood sample and its chemical analysis for blood alcohol content did not amount to “testimonial or communicative” evidence and, therefore, was not prohibited by the Fifth Amendment.⁶⁹

Missouri's DNA profiling statute, § 650.055, RSMo, withstood a similar Fifth Amendment challenge.⁷⁰ In In re Cooper v. Gammon, the defendant argued “that § 650.055 [violated] the Fifth Amendment privilege against self-incrimination by compelling him to be a witness against himself [by] forcibly taking potentially incriminating evidence from his body.”⁷¹ The Missouri court followed the reasoning in Schmerber and held that compelling an extraction of a blood sample for blood alcohol content is not “testimonial or communicative evidence” protected by the Fifth Amendment.⁷² The defendant also raised the ex post facto clause, arguing that the drawing of a blood sample makes the punishment for the defendant's crime more burdensome and takes away substantial rights.⁷³ The Missouri court also held that although § 650.055 created the possibility of prisoners being punished for refusing to submit to a DNA test, any penalty would result from the prisoner's “refusal to comply with valid prison regulations rather than the commission of the crime for which [the prisoner] was sentenced.”⁷⁴

E. DNA Samples Collected From Felons or Arrested Suspects May Be Used in Evidentiary, Investigatory, and Profiling Functions

DNA evidence enables prosecutors to show the defendant's presence at a crime scene through direct evidence — the presence of the defendant's DNA at the scene.⁷⁵ As a result, DNA databases are used in “overcoming problems of false testimony” in court in that DNA samples are far more reliable than eyewitness testimony.⁷⁶ In sexual assault cases in which the physical description of the attacker or the offender's identity is unknown, DNA evidence is the unbiased witness that provides the conclusive link between the crime and the criminal.⁷⁷

The Federal Bureau of Investigation (“FBI”) has created a national DNA database in addition to the individual state databases.⁷⁸ In 1994, Congress passed the DNA Identification Act, which authorized the FBI to create the Combined DNA Index System (“CODIS”).⁷⁹ CODIS is a three-tiered system of information.⁸⁰ Level one, the Local DNA Index System (“LDIS”), contains information entered by local police and sheriff's department laboratories.⁸¹ The second level, State DNA Index System (“SDIS”), permits local laboratories to trade information within the state.⁸² The third tier, the National DNA Index System (“NDIS”), gives states the option to exchange data with other states.⁸³

CODIS is used to assist the police in identifying suspects in crimes where the attacker is not known.⁸⁴ For example, investigators using CODIS can compare DNA samples from the crime scene with DNA profiles in local and national databases in an effort to locate a match or a “cold hit.”⁸⁵ Investigators can then use these DNA matches to identify and arrest potential suspects.⁸⁶ A study conducted by the Commonwealth of Virginia found that 62.5% of all people released from prisons in 11 states during 1983 were arrested for an additional felony or serious misdemeanor within three years.⁸⁷ The same study found that 22.7% of all prisoners were re-arrested for a violent offense within three years of release from prison.⁸⁸

The cold hits resulting from the matching in CODIS identifies approximately one offender for every 1,000 samples contained in CODIS.⁸⁹ Despite the backlog of current DNA samples awaiting analysis, Virginia and Florida are both experiencing more than one cold hit each week.⁹⁰ Virginia reports that the offender's original DNA sample was taken in conjunction with a property crime arrest in 60% of the matches achieved from the state's database. In Florida, the estimate is fifty-two percent.⁹¹

F. DNA Profiling Has a Significant Impact in Prosecuting Sexual Assault Cases With Relation to the Statute of Limitations

Sexual assault crimes are subject to statutes of limitations in many states.⁹² Statutes of limitations serve society's needs to punish criminal behavior and protect defendants from the prejudice created by the passage of time.⁹³ DNA technology raises questions about limiting the time in which the state can prosecute defendants for sexual assault crimes.⁹⁴ Opponents argue that DNA indictments vitiate the exact purpose for which statutes of limitations were created: “to preclude defendants from . . . stale charges” that presumptively prevent a defendant from gathering “potentially exculpatory evidence.”⁹⁵ Proponents argue that rape survivors' interests should take precedence over statutes of limitations because the accuracy of DNA outweighs any potentially exculpatory evidence that the defendant might bring for his defense.⁹⁶

In Missouri, prosecutors traditionally had assumed they could file charges of sexual assault regardless of how much time had elapsed since the alleged offense.⁹⁷ In December 2000, the Missouri Court of Appeals for the Western District issued a decision interpreting state law as imposing a three-year statute of limitations on sexual assault crimes.⁹⁸ The court ruled that lawmakers in 1990 had inadvertently changed the limit to three years.⁹⁹ The Missouri Court of Appeals for the Eastern District, meanwhile, upheld rulings that prosecution of a sexual assault case could begin at any time, regardless of the statute of limitations.¹⁰⁰ To address the different standards in the Eastern and Western districts, the Missouri General Assembly acted rapidly and drafted House Bill 1037/ Senate Bill 650. In a nearly unanimous vote, legislators passed the measure as an emergency bill on March 6, 2002. The new statute reads, in pertinent part, that a prosecution for a sexual assault may be commenced at any time.¹⁰¹ The importance of the measure led Missouri Governor Bob Holden to sign the legislation in mid-session on March 6, 2002.¹⁰²

G. Missouri's DNA Profiling System

Section 650.050, RSMo, authorizes the Missouri Department of Public Safety to “develop and establish a 'DNA Profiling System.'”¹⁰³ The profiling system is “referred to in sections 650.050 to 650.057 . . . to support criminal justice services in local communities [statewide] in DNA identification.”¹⁰⁴ The DNA profiling system is compatible with the FBI system such that the state and federal agencies may exchange DNA records and the quality of samples remains assured.¹⁰⁵

H. Missouri DNA Sample Collection

Section 650.055, RSMo, requires that prisons collect a blood sample from every individual convicted of a felony in a Missouri circuit court for purposes of DNA profiling.¹⁰⁶ The Department of Corrections will collect the sample upon an offender's entry into the Department of Corrections system, or “[b]efore release from a county jail or detention facility.”¹⁰⁷ The DNA profiling statute applies to offenders in prison, on probation, and on parole.¹⁰⁸ The Missouri State Highway Patrol and the Department of Corrections enforce and oversee the DNA sample collection and storage process.¹⁰⁹ The DNA collection statute indemnifies employees who collect the samples from civil and criminal liability when the collection act is performed in a reasonable manner.¹¹⁰ The statute authorizes the collection of DNA samples by force if necessary.¹¹¹

I. The DNA Backlog

Although all 50 states require that convicted offenders submit to DNA samples, increased funding should be allotted to DNA analysis to decrease the backlog of DNA samples awaiting analysis so that authorities may solve past crimes and future crimes more efficiently.¹¹² Many samples are not tested for years due to the overwhelming demands placed on state laboratories because of the large volume of DNA evidence.¹¹³ Analyzing the backlog of CODIS samples is estimated to take six years, and many samples may remain untested after statutes of limitations run.¹¹⁴ Nearly 500,000 blood samples from felons nationwide await analysis, in addition to the samples not yet collected from one million convicted murderers and rapists.¹¹⁵ The National Commission on the Future of DNA Evidence counsels against testing newly-arrested suspects because of this enormous backlog, and voices concerns about the continued lack of laboratory funding by state legislatures.¹¹⁶

III. Conclusion

States should collect DNA samples from convicted felons, arrestees, and suspects, and should include these samples in a federally-mandated DNA database because the government's interests in solving and preventing crimes and seeking justice for victims far outweigh the minimal intrusion upon individuals by requiring submission to a DNA test. DNA databases are useful in solving past and future crimes, as well as in exonerating suspects and those wrongfully accused and/or convicted. DNA evidence has proven effective in the courtroom setting and is more reliable than eyewitness testimony. DNA databases could deter repeat offenders from committing future crimes.

DNA evidence provides the prosecution with a stronger case when defendants are confronted with positive DNA test results linking them to the crime scene and crime charged; the result is more guilty pleas. These guilty pleas save the state and federal court systems time and money. In the last 10 years, the use of DNA evidence has gained widespread recognition in courts across the country. In 1992, the Fourth Circuit ruled that the collection of blood samples from convicted felons does not violate the Fourth Amendment with regard to its search and seizure protections. In 1995, a Minnesota district court found that collection of DNA samples was not cruel and unusual punishment under the Eighth Amendment. In 1997, the Missouri Court of Appeals found that compelled DNA testing does not violate a criminal defendant's constitutional right against self-incrimination. In sum, DNA evidence contained in a federally-mandated database is an invaluable tool to law enforcement and prosecutors who enforce criminal laws and attempt to protect society from future crimes committed by repeat offenders.

Footnotes

¹ Jennifer Graddy graduated cum laude from Drury University in Springfield in December 1997 with a dual major in Speech Communications and Spanish. She is a December 2002 graduate of the University of Missouri-Columbia School of Law, where she obtained both a Juris Doctor and specialty certification in the area of Dispute Resolution. Graddy is a Rule 17.04 certified court-appointed mediator. Through the MU School of Law Mediation Clinic, she mediated cases in both federal court and small claims cases at the Boone County Courthouse. She was employed as a law clerk with the Missouri Attorney General's Offices in Jefferson City and Springfield for the past three years.

² Martha L. Lawson, Personal Does Not Always Equal “Private”: The Constitutionality of Requiring DNA Samples from Convicted Felons and Arrestees, 9 Wm. & Mary Bill Rts. J. 645, 645 (2001).

³ Edward Connors et al., U.S. Department of Justice, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, at xxvi (1996) (“DNA analysis is a powerful and often necessary tool for establishing the presence or absence of someone at a crime scene.”).

⁴ Id.

⁵ Kenneth Bredemeier, In Virginia, Freedom From Fear for Crime Victims, Relief for Families, Wash. Post, July 7, 1999, at A14.

⁶ Yale H. Yee, Criminal DNA Data Banks: Revolution for Law Enforcement or Threat to Individual Privacy?, 22 Am. J. Crim. L. 461, 476 (1995).

⁷ Associated Press, Inmate Released After DNA Analysis, A North Carolina Man Was Cleared of Rape as a Florida Man Was Charged, Orlando Sentinel, July 8, 1997, at C6.

⁸ Id.

⁹ Id.

¹⁰ See Lawson, note 2 at 658.

¹¹ Callie Marie Rennison, Criminal Victimization, 1999, Bureau of Justice Statistics National Crime Victimization Survey, at http://www.ojp.usdoj.gov/bjs/pub/pdf/cv99.pdf (Aug. 2000).

¹² National Research Council, Committee on DNA Forensic Science: The Evaluation of Forensic DNA Evidence, National Academy Press, at http://www.nap.edu/readingroom/books/DNA (1996).

¹³ Rebecca Sasser Peterson, DNA Databases: When Fear Goes Too Far, 37 Am. Crim. L. Rev. 1219, 1238 (2000).

¹⁴ See Lawson, note 2 at 658.

¹⁵ Erin Hallissy & Charley Goodyear, How DNA Fights Crime, S.F. Chron., Oct. 20, 1999, at A1.

¹⁶ Id. (quoting David Coffman, the director of Florida's DNA database lab, as stating: “I really have the greatest job in the world. I actually break the cases open.”).

¹⁷ Chris Roberts, Panel Studies Use of DNA in Inmate Appeals, San Diego Union-Trib., May 8, 1999, at A10 (noting that DNA evidence has disproved eyewitness accounts on occasion).

¹⁸ See Connors, note 3 at xiv.

¹⁹ See Walter F. Rowe, Commentary site to Edward Connors et al., Convicted by Juries, Exonerated by the Use of DNA Evidence to Establish Innocence After Trial, at xv (1996) (noting that DNA molecules are “more stable than the polymorphic proteins” formerly used to link biological evidence to suspected offenders).

²⁰ Sally E. Renskers, Trial by Certainty: Implications of Genetic “DNA Fingerprints,”39 Emory L.J. 309, 313-14 (1990).

²¹ Amy Dunn, Criminal Law—Statutes of Limitation on Sexual Assault Crimes: Has the Availability of DNA Evidence Rendered Them Obsolete?, 23 U. Ark. Little Rock L. Rev. 839, 860 (2001).

²² Mark Schoofs, Genetic Justice, Village Voice, November 18, 1997, at 44 (quoting Carlos Rebren, the director of Alabama's forensic science department, who said that maintaining an individual's DNA profile might “discourage [him] from criminal misconduct”).

²³ Stephanie A. Parks, Compelled DNA Testing in Rape Cases: Illustrating the Necessity of an Exception to the Self-Incrimination Clause, 7 Wm. & Mary J. Women & L. 499, 510 (2001).

²⁴ Id.

²⁵ Id.

²⁶ Id.

²⁷ Jean McEwen & Phillip R. Reilly, A Review of State Legislation on DNA Forensic Data Banking, 54 Am. J. Hum. Genetics, 941, 944-45 (1994).

²⁸ See Yee, note 6 at 477.

²⁹ Michelle Hibbert, DNA Databanks: Law Enforcement's Greatest Surveillance Tool?, 34 Wake Forest L. Rev. 767, 774 (1999).

³⁰ See Lawson, note 2 at 650.

³¹ See Hibbert, note 29 at 775-78.

³² Peter Donnelly & Richard D. Friedman, DNA Database Searches and the Legal Consumption of Scientific Evidence, 97 Mich. L. Rev. 931, 939, (1999).

³³ See Ala. Code § 36-18-24 (2001); N.M. Stat. Ann. §§ 29-16-1- 29-16-13 (Michie 2003); Va Code Ann. § 19.2-310.2 (Cum. Supp. 2002); Wyo. Stat. Ann. §§ 7-19-401– 7-19-405 (Michie 20003).

³⁴ See Ariz. Rev. Stat. Ann. § 31-281 (A) (West 2002); Ark. Code Ann. § 12-12-1109 (Supp. 2003); Del. Code ann. tit. 29 § 4713 (1997).

³⁵ See Idaho Code § 19-5506 (Michie Cum. Supp. 2003).

³⁶ See N.C. Gen. Stat. § 15A-266.4 (1997).

³⁷ La. Rev. Stat. Ann. § 15: 609 (West Cum. Supp. 2003).

³⁸ See Ariz. Rev. Stat. Ann. §§ 13-4438, 31-282 (West 2002); Kan. Stat. Ann. § 21-2511 (a) (Cum. Supp. 2002); Or. Rev. Stat. § 419C.473(1) (1999) (These statutes are an expansion of the standard statutes authorizing samples from convicted offenders because a juvenile is technically not convicted, but rather is adjudicated.).

³⁹ Nicholas Wade, FBI Set to Open Its DNA Database for Fighting Crime, N.Y.Times, Oct. 12, 1998 at A1 (quoting M. Dawn Herkenham, chief of the FBI's Forensic Science Systems Unit: “I think the trend is that ten years from now all the felonies will be covered. . . . We recommend that all violent felonies, burglaries, juveniles, and retroactivity for people on parole to be included.”)

⁴⁰ See, e.g., Ala. Code § 36-18-24 (2001); Ariz. Rev. Stat. Ann. § 13-4438 (West 2002); 730 Ill. Comp. Stat. 5/5-4-3 (West Cum. Supp. 2003).

⁴¹ See, e.g., Ala. Code § 36-18-24 (2001); 730 Ill. Comp. Stat. Ann. 5/5-4-3 (Cum. Supp. 2003).

⁴² 730 Ill. Comp. Stat. Ann. 5/5-4-3) (Cum. Supp. 2003).

⁴³ Jones v. Murray, 962 F.2d 302 (4th Cir. 1992).

⁴⁴ Id. at 305.

⁴⁵ Id. at 306.

⁴⁶ Id.

⁴⁷ Id. at 308.

⁴⁸ Hudson v. Palmer, 468 U.S. 517, 523-24 (1984); see also Bell v. Wolfish, 441 U.S. 520, 545 (1979).

⁴⁹ Id.

⁵⁰ See Bell v. Wolfish, 441 U.S. 520, 545 (1979).

⁵¹ People v. Wealer, 636 N.E.2d 1129, 1136 (Ill. App. Ct. 1994).

⁵² See Lawson, note 2 at 654-55.

⁵³ State v. Olivas, 856 P.2d 1076, 1086 (Wash. 1993) (noting the special needs approach is well-suited to meet the goal of balancing government needs and privacy rights of convicted persons).

⁵⁴ Id.

⁵⁵ Id. at 1077.

⁵⁶ Id. at 1080.

⁵⁷ Id. at 1081-82.

⁵⁸ Id. at 1085 (citing Virginia Dept. of Criminal Justice Services, Violent Crime in Virginia (1998) and Bureau of Justice Statistics, Special Report: Recidivism in Prisoner Released in 1983 (1989)).

⁵⁹ Id. at 1086; see also Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999) (using the “special needs” approach to uphold the DNA database statute because of the high rate of recidivism among sexual offenders and the usefulness of DNA in solving sex crimes).

⁶⁰ Id.

⁶¹ Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999).\

⁶² Landry v. Attorney General, 709 N.E.2d 1085, 1092 (Mass. 1999).

⁶³ Id.

⁶⁴ Kruger v. Erickson, 875 F. Supp. 583 (D. Minn. 1995).

⁶⁵ Id. at 588.

⁶⁶ David Dolinko, Is There a Rationale for the Privilege Against Self-Incrimination?, 33 UCLA L. Rev. 1063, 1095 (1986) (noting that a rule requiring factually guilty persons to provide evidence of their crimes is “so contrary to the basic human instinct of self-preservation that very few of us could conform to it.”)

⁶⁷ Schmerber v. California, 384 U.S. 757, 767 (1966).

⁶⁸ Id. at 763-64.

⁶⁹ Id. at 765.

⁷⁰ In re Cooper v. Gammon, 943 S.W. 2d 699, 705 (Mo. App. W.D. 1997).

⁷¹ Id.

⁷² Id.

⁷³ Id. at 706.

⁷⁴ Id.

⁷⁵ Harlan Levy, And the Blood Cried Out: A Prosecutor's Spellbinding Account of the Power of DNA 190 (Basic Books 1996) (“I firmly believe now, that DNA analysis can promote a more just society, both by making punishment of the guilty more likely and by assuring exoneration of the innocent.”).

⁷⁶ See Lawson, note 2 at 660.

⁷⁷ See Dunn, note 21 at 867.

⁷⁸ Robert W. Schumacher II, Article, Expanding New York's DNA Database: The Future of Law Enforcement, 26 Fordham Urb. L.J.. 1635, 1646 (1999).

⁷⁹ Id., see also 42 U.S.C. §§ 3751, 3753, 3793, 3797 (1994).

⁸⁰ Id.

⁸¹ Id. at 1646, n.88.

⁸² Id.

⁸³ Id.

⁸⁴ Christopher H. Asplen, From Crime Scene to Courtroom: Integrating DNA Technology into the Criminal Justice System, 83 Judicature 144, 147 (1999).

⁸⁵ Id.

⁸⁶ Id.

⁸⁷ See Yee, note 6 at 476.

⁸⁸ Id.

⁸⁹ See Asplen, note 84 at 147.

⁹⁰ Eric Slater, Rape Case DNA Tests the Limits; Milwaukee Uses Genetic Evidence to File Warrants in Unsolved Crimes, National Databank is Overwhelmed by Samples, Underfunded and Undercoordinated, L.A. Times, Feb. 11, 2000, at A1 (noting Virginia state crime lab director Paul Ferrara's belief that at least one murder of a 22 year-old woman would have been prevented had the backlog of unanalyzed DNA samples not led to the release of a suspected murderer/rapist before he could be linked to a prior murder and rape).

⁹¹ Mark Hansen, Banking on DNA: Prosecutors Hail Broadening Collections; Others See Privacy Violations, ABA Journal, Aug. 1999, at 26.

⁹² Alan L. Adlestein, Conflict of the Criminal Statute of Limitations with Lesser Offenses at Trial, 37 Wm. & Mary L. Rev. 199, 251-52 (1995).

⁹³ J. Anthony Chavez, Statutes of Limitations and the Right to a Fair Trial: When is a Crime Complete?, Crim. Just., Summer 1995, at 2.

⁹⁴ Steve Chapman, Rapists Shouldn't Be Able to Run Out the Clock, Chi. Trib., Mar. 12, 2000, at 19.

⁹⁵ Andrew C. Bernasconi, Beyond Fingerprinting: Indicting DNA Threatens Criminal Defendants' Constitutional and Statutory Rights, 50 Am. U. L. Rev. 979, 999 (2001).

⁹⁶ Jonathan, W. Diehl, Drafting a Fair DNA Exception to the Statute of Limitations in Sexual Assault Cases, 39 Jurimetrics J. 431, 436 (1999).

⁹⁷ Tim Hoover, Missouri Lawmakers Pass Bill Lifting Statute of Limitations on Rape, Kansas City Star, Mar. 5, 2002.

⁹⁸ State v. Hyman, 37 S.W.3d 384, 388 (Mo. App. W.D. 2001).

⁹⁹ Id.

¹⁰⁰ Id.

¹⁰¹ H.B. 1037, 91st Gen. Assem., 2d Reg. Sess. (Mo. 2002).

¹⁰² See Hoover.

¹⁰³ Section 650.050, RSMo 2000.

¹⁰⁴ Id

¹⁰⁵ Id.

¹⁰⁶ Section 650.055, RSMo 2000.

¹⁰⁷ Id

¹⁰⁸ Id.

¹⁰⁹ Id.

¹¹⁰ Id.

¹¹¹ Id.

¹¹² See Dunn, at 856.

¹¹³ See Hibbert, at 799.

¹¹⁴ See Asplen, at 147.

¹¹⁵ See Hallissy, at A1.

¹¹⁶ Michael Higgins, Acid Test, ABA Journal, Oct. 1999, at 64, 66.