Hundreds and perhaps thousands of prisoners behind bars for crimes they did not commit could prove their innocence with relative ease—if only prosecutors would let them. Although the American criminal justice system purports to create a level playing field, for example by requiring prosecutors to share relevant information with defense lawyers, only prosecutors have access to the DNA databases that more than 300 former prisoners have used to prove their innocence since 1989.
Operated and maintained by the FBI, the federal Combined DNA Index System (CODIS) database contains data regarding 10 million offenders and 1.3 million arrestees, and is growing at an accelerating rate. At present, however, prosecutors have an iron grip on CODIS and only nine states—Colorado, Georgia, Illinois, Maryland, Mississippi, New York, North Carolina, Ohio and Texas—have laws granting defendants access to DNA databases.
According to defense attorneys and civil libertarians, legal reforms are needed to make the DNA databases equally available to defense lawyers. Steven Benjamin, president of the National Association of Criminal Defense Lawyers, called it “a national problem, a huge and recurring one,” because “juries expect the defense to be able to prove that if your client didn’t do it, who did? Science doesn’t belong to the government, but they act like it does. Unless the defense is given access to this information, the playing field remains uneven in criminal justice.”
Even some prosecutors say they agree: “We, as law enforcement and prosecutors, are obligated to seek the truth and follow the evidence, and DNA should be entered into CODIS,” said Scott Burns, executive director of the National District Attorneys Association. “It seems like there should be laws for it, and I agree that the defense should be given the information.”
“You’d think there would be a federal rule or a statute in every state creating the clear obligation to do a CODIS search in any case where the defense wants it,” said Brandon L. Garrett, a professor of law at the University of Virginia.
However, as Garrett has also pointed out, when it comes to prisoners challenging their convictions, prosecutors “are attached to their convictions, and they don’t want to see their work called into question.”
- Another False Confession Cleared by DNA (deafinprison.wordpress.com)
- Rapid DNA: Coming Soon to a Police Department or Immigration Office Near You (informationliberation.com)
Even after January’s landmark Supreme Court decision cast significant doubt on the government’s ability to electronically track a person’s location without a warrant, the Justice Department continues to defend this practice. On Friday, the ACLU, along with the Electronic Frontier Foundation, the Center for Democracy and Technology, and the National Association of Criminal Defense Lawyers, filed a friend-of-the-court brief in the U.S. Court of Appeals for the Fifth Circuit, arguing that the government should be required to obtain a warrant based on probable cause before seizing 60 days’ worth of location information generated by an individual’s cell phone.
The appeal by the government comes after a federal district court judge in Texas held that the constitution does indeed require a warrant for such information. As long as a cell phone is turned on, it automatically registers its estimated location with the nearest cell towers as frequently as every seven seconds. This means that every person who uses a cell phone is creating a vast record of personal information, from doctors’ visits to church attendance to visits to friends’ homes.
In our brief, we urge the court to hold that the Fourth Amendment requires the government to obtain a warrant and demonstrate probable cause before obtaining cell phone location data. Most people are unaware that their every movement can be tracked through their phones, and we maintain an expectation that such information will remain private. Cell phone location data, especially data collected over a prolonged period of time, is simply too sensitive to allow the government access without proving to a judge that there’s good reason to believe it will turn up evidence of a crime.
This is the first time in years that a higher court will consider the constitutionality of this issue. By refusing to appeal lower-court decisions where a judge required a warrant, the government has avoided allowing appeals courts to make a ruling.
Unfortunately, the government believes that most people know that their cell phones are generating a near-constant record of their locations and movements, and it argues that individuals cannot reasonably expect that this information will remain private.
The government is wrong. We shouldn’t have to choose between using the modern technology that society has come to rely upon and being able to expect that our private information will remain private. Instead, our brief encourages the court to recognize that when we take our cell phone to the gym or to a political rally, we certainly don’t intend for the government to be following along.