Page 182 - Privacy in a Cyber Age Policy and Practice

170 PRIVACY IN A CYBER AGE

in a lineup on the grounds that his face is a vessel for certain biometric
information. Another suspect could refuse to provide a breath sample that
contains information about her alcohol level. In other words, suspects could
refuse to provide material evidence—on the very grounds that it contains
the information that might convict them, which is of course the reason
to collect evidence in the first place. The consequences of this approach
to physical evidence are virtually unlimited—Schmerber has been applied
by the lower courts to “handwriting exemplars, fingerprints, voice exem-
plars, dental impressions, urine samples, sobriety tests, gunshot residues,
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hair samples, and other techniques” —and would broaden the definition
of testimonial evidence so expansively that the term becomes meaningless.

C. The Benefits of Forensic DNA Usages
To reiterate, liberal communitarianism concerns itself with the extent to
which a public policy entails intrusions on individual rights and the extent
to which the same policy contributes to the common good. If the intrusions
on individual rights are small, if limits on these intrusions can be readily
and effectively enforced—that is, if accountability is high—and the contri-
butions to the common good that stem from these intrusions are substan-
tial, the policy should be tolerated unless a policy with a more favorable
liberal communitarian profile becomes available. (The courts often employ
a similar approach, albeit without using the same terminology.)
To apply this approach to forensic DNA usages, it is insufficient to dem-
onstrate that the intrusions on individual rights caused by DNA usages
are much smaller than critics contend and that the law can further cur-
tail them. Instead, the scope of DNA usages’ contributions to the common
good must also be assessed.
I find it odd that people who will readily sign on to the statement that “it is
better that one hundred guilty persons should escape than that one innocent
person should suffer” are not willing to let the DNA of one hundred people
be tested to catch one serial killer or rapist. True, the rights of those that are
tested and found innocent need to be protected, but this can be achieved by
more accountability (along the lines suggested by Suter; Greely, et al.; and Ge
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et al. ) and not by less testing. One need not burn down the house in order
to roast a pig, as Justice Felix Frankfurter put it in another context. 82

1. Contributions to the Common Good: Enhancing Public Safety

The current case for increasing forensic DNA usages may at first seem sur-
prising given that public safety in the United States has greatly improved