Page 181 - Privacy in a Cyber Age Policy and Practice

DNA SEARCHES: A LIBERAL COMMUNITARIAN APPROACH 169

DNA privacy. It makes no sense to refuse to introduce effective plumbing
into a house, because a hurricane may come one day and blow it away.
One needs to ensure that it is built on solid foundations and that this are
continually fortified.

5. Violations of the Fifth Amendment’s Right to
Freedom from Self-Incrimination

James Gans argues that “DNA request surveillance,” that is, “the obser-
vation of individuals’ fear of a match between their DNA and material
connected with a past (or future) crime, by assessing their response to a
request to provide a DNA profile voluntarily,” violates protections against
self-incrimination “because it forces people who are reluctant to undergo
DNA profile surveillance to reveal that reluctance to investigators,” which
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“can support an inference that such individuals” are guilty. A different
argument put forward in the early days of DNA profiling argued that the
technology itself raised Fifth Amendment issues, due to “the unique auto-
biographical nature” of DNA. 74
This notion that DNA evidence is qualitatively different than other forms
of physical evidence, known as DNA exceptionalism, has been rejected by
the overwhelming majority of case law. The courts held the freedom from
self-incrimination does not extend to material evidence, as was recog-
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nized in Schmerber v. California and other subsequent cases. Whether
or not a piece of evidence violates the Fifth Amendment turns on whether
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it is compelled, incriminating, and most of all testimonial in nature. “In
order to be considered testimonial,” writes Nicholas Soares, a public interest
lawyer in Washington, DC, “a compelled communication must force the
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defendant to reveal the contents of his mind.” In other words, the act
of producing testimonial evidence is roughly defined as “the disclosure
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of one’s knowledge or beliefs, the contents of which are incriminating.”
While Nita Farahany convincingly argues that advances in neuroscience
threaten to break down the already tenuous dichotomy between “testimo-
nial” and “physical” evidence, a DNA sample in and of itself clearly does
not constitute self-incrimination because it reveals nothing of the suspect’s
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mind. Thus, the Court of Appeals for the Tenth Circuit flatly rejected
claims that “requiring DNA samples from inmates amounts to compulsory
self-incrimination,” countering with the assertion that DNA samples are
not testimonial in nature.
Moreover, if the notion that collecting a DNA sample violates the right to
be free from compelled self-incrimination is taken to its logical conclusion, it
would exclude almost all physical evidence. A suspect could refuse to stand