Genetic genealogy is a tool that has people uploading their DNA to databases so that they can find long lost relatives and make new connections. What has been making the news more recently is the fact that some public databases cooperate with law enforcement agencies to give those agencies a new investigative technique that has led to dozens of arrests, and which brings a host of new legal issues.
How does genetic genealogy work to help the police investigate crimes? Police retain genealogists who take DNA profiles found in a crime scene and upload those profiles on public genetic genealogy databases (some public databases cooperate with police agencies, while others require a warrant before cooperation). They are then compared against the uploaded DNA sources. The databases are searched for DNA matches, either perfect matches or matches that can identify relatives to the DNA profile by comparing thousands of genetic markers. With this advanced technology, genealogists can create detailed family trees, people with remote family connections (perhaps only sharing a great-great-great-grandparent). With the family tree, police can use other techniques to find suspects and make arrests.
In the United States, law enforcement agencies have made dozens of arrests on cold cases. Finally, for the first time, this evidence is starting to be tested in courts. The first case to have this evidence be presented as part of the state’s case is in William Talbott II’s trial, where he faces two murder charges related to the disappearance of two Canadians from November 1987. The two Canadian teenagers were discovered dead days after their disappearance and over 100km apart. The defence theory is that, while his DNA may be present on one of the victims, it does not mean he killed these two.
In another case, making its way through the American court system, defence attorneys intend to challenge the admissibility of the evidence, arguing that to assemble and test a genetic profile without a warrant violates the American Constitution. In the case of Jesse Bejerke (who is charged with rape and awaiting trial), police followed him, collected items he had discarded and did a DNA profile after he was identified as a possible suspect through a recreation of a family tree from this testing. He was a match to the crime scene DNA. His defence attorney argues that to extract a DNA profile from the discarded item would require a warrant and that the genealogist report would not be sufficient to obtain a warrant.
Where does that leave us in Canada and why should this matter?
Firstly, this technique is being touted as a breakthrough for police agencies and so it should not be a shock to anyone that Canadian police agencies are paying attention. More specifically, CBC reported on May 30, 2019 that for the first time, a Canadian police agency has acknowledged using this investigative technique to investigate a cold case file. Vancouver police are hoping that links can be found to a crime scene DNA profile in a murder from 2003.
Why does this matter? This type of investigative technique introduces a number of legal questions that have no answers as of yet. There is no rules or laws from Parliament, and at least in Canada, it has not come up in the courts. And yet the ramifications are significant. The Courts have acknowledged the privacy concerns of DNA given the biological information that exists in our DNA; whether such techniques will withstand constitutional scrutiny remains to be seen:
· What does those uploading their DNA to these databases know of who is accessing their DNA and for what purpose?
· Whose privacy interests are at stake when a DNA analysis is being conducted?
· Given that thousands of DNA markers are being tested and matched that can determine close and distant relatives of an accused person, does that mean an accused person has a privacy interest in that DNA?
· Will the police be required to obtain a search warrant to extract a DNA profile from an item discarded from a suspect?
To date, it does not appear that this technique has led to an arrest in Canada, but it is only a matter of time. The legal questions that will arise once that does happen will be numerous and will affect significant liberty interests of an accused person.