Page 187 - Privacy in a Cyber Age Policy and Practice

DNA SEARCHES: A LIBERAL COMMUNITARIAN APPROACH 175

offenders. Indeed, partly thanks to FBI and National Institute of Justice
grants, the private sector has in recent years begun to roll out faster tech-
nologies for DNA testing, which, with refinement and economies of scale,
may well go a long way toward greatly reducing the backlog problem. 120

2. The Right to be Cleared

Contrary to the view that while forensic DNA usages may benefit the
common good, these gains come at the expense of significant violations of
individual rights, such usages greatly advanced both elements of the liberal
communitarian balance. They serve to advance not just the common good
but also to protect individual rights. This is often overlooked when DNA
usages help to serve what might be considered an implicit right—to be
cleared of police suspicion. This right may be viewed as derivative of the
right to a speedy trial, although it of course is a distinct one.
In the United States, there is almost a ritualistic emphasis that the pre-
sumption of innocence—“innocent until proven guilty”—forms the basis
of the criminal justice system, and that there are hence two kinds of people:
the innocent and the convicted. In practice, however, “suspect” forms a
third category in addition to “innocent” and “guilty.” Numerous people
have undergone some kind of legal process that has indicated they were
suspected of having committed a crime, for example by being arrested or
served a search warrant. These people have diminished rights compared
to those considered innocent, though not to the extent of those already
convicted of a crime. For example, they may be subject to fingerprinting
or detention without charge for a set period of time, while such measures
would be considered outrageous when applied to innocent people who are
not suspected of anything.
If no “guilty” party is found, suspects often remain under a cloud of
suspicion, sometimes for years. For example, in 1979, fifteen-year-old Jef-
frey Womack was brought into custody and questioned in relation to the
murder of a nine-year-old girl; he invoked his right to an attorney and
refused to say anything to the police, and the case against him was eventu-
ally dropped due to a lack of evidence. For the next thirty years, members
of the community and police officers harassed Womack, believing him
to be a killer. Womack knew that for “practically his entire adult life, he
would be staked out, followed, rousted, and hounded.” 121 Only in 2008,
after Jerome Sidney Barrett was charged in the murder 122 thanks to DNA
testing, 123 was Womack’s name finally cleared.
Cases like that of Womack, which illustrate the harm suffered by those
labeled as suspects, illustrate the need for a new right: the right to be
cleared of suspicion, a derivative but not identical to the right for a speedy