Page 183 - Privacy in a Cyber Age Policy and Practice

DNA SEARCHES: A LIBERAL COMMUNITARIAN APPROACH 171

since crime rates peaked in the early 1990s. During the 1990s, the United
States reported a 40 percent decline in violent crimes, including homi-
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cide, and “between 1993 and 2012 the violent crime rate . . . dropped
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by 48 percent.” The number of murders in the United States in 2011 was
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17 percent lower than it was in 2001. Rates of property crime have also
decreased; in 2009, the property crime rate per 100,000 inhabitants was
3,036, down from 5,073 in 1990. 86
However, despite declining overall crime rates, clearance rates—the rates
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at which crimes are considered “solved for crime reporting purposes” —
have fallen steadily for more than half a century. FBI statistics for 2012
found that property crimes were cleared at a rate of 19.0 percent—less than
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one in five. Moreover, 2011 statistics showed that less than half—47.7
percent—of violent crimes were cleared. However, given the relatively low
cost of DNA analysis as explored in previous sections and the low clearance
rates indicated, it follows that law enforcement must be further enhanced
for the sake of crime victims who seek resolution, to deter future crimes,
and to maintain the legitimacy of the criminal justice system. If the “costs”
to rights were significantly higher than we found (in the real world and not
some hypothetical one) this preceding communitarian balancing calcula-
tion would change. Indeed, it is important to note that as clearance rates
reach the upper limit, costs are likely to rise sharply, however we are far
from the upper limit.
Forensic DNA usages are not a perfect solution: critics argue they are
rife with errors, particularly those caused by poor lab work, deliberate
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misrepresentations, and problems with chain of custody. The potential
sources of error in DNA usages begin at the scene of a crime. An evidentiary
DNA sample may be degraded, available in extremely limited quantities,
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or contain the DNA of multiple individuals. In several cases when an
evidentiary sample was too small for analysis, analysis was performed
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anyway, which led to false convictions. Also, all samples from a single
case are often analyzed in the same “batch,” and it is well-recognized that
“inadvertent switching, mixing or cross-contamination of samples can
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cause false matches.” Nearly two thousand cases of potential labora-
tory error involving DNA evidence have been identified in the United
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States. One Houston, Texas, crime laboratory, for example, was closed
for several years following revelations of systemic laboratory errors and
misleading testimony that ultimately culminated in three exonerations
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and necessitated retesting thousands of cases. Such problems also exist
in the United Kingdom, where the Forensic Science Service laboratory has
botched 2,500 cases. 95
However, the reliability of forensic DNA usages becomes a strength
rather than weakness when viewed in perspective. Forensic DNA usages