The Demographics of Genetic Surveillance: Familial Dna Testing and the Hispanic Community

For years, law enforcement personnel have compared DNA found at crime scenes with that of a convicted offender. Recently, a new technique has begun to focus on the genetic similarity of biological relatives. Now, if a crime scene sample partially matches the DNA profile of a previous offender, law enforcement can investigate and possibly arrest that person’s family members. This process is called familial DNA testing and will significantly increase the amount of genetic information contained in the FBI’s Combined DNA Index System (CODIS), which consolidates local, state, and federal DNA databanks into a uniform body of data. This Note argues that familial DNA testing will disproportionately affect the Hispanic community. Familial testing, which uses biological relatedness as the trigger for criminal investigation and DNA extraction, ensures that groups with more children and large families relative to other groups will be at higher risk for genetic surveillance. This is especially true given the dynamics of the CODIS search process, which creates a cumulative, generational effect that is likely to replicate previous search outcomes. As a result, demographic trends ensure that innocent members of the Hispanic community will disproportionately experience privacy invasions as a result of familial testing. The Note then examines likely constitutional challenges to familial testing under the Fourteenth and Fourth Amendments, concluding that a Fourth Amendment probable cause argument provides the best hope of redress.