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States work to pass laws that restrict DNA testing in criminal investigations

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Posted at 3:29 PM, Jul 16, 2021
and last updated 2021-07-16 15:29:05-04

Recently, investigators in Montana solved what is believed to be the oldest-known cold case in the U.S. after two teens were murdered in 1956.

But the DNA testing detectives used is now getting restricted as more states look to pass laws barring certain genealogy testing from law enforcement.

On January 3, 1956, the bodies of 18-year-old Dwayne Bogle and 16-year-old Patty Kalitzke were found face down, miles apart from one another, with bullet wounds to their heads. Detectives with the Cascade County Sheriff Office worked the case tirelessly, finding more than 35 suspects who all turned out to be unlikely culprits in the case.

Then, in 2019, Detective Sgt. John Kadner decided to try something.

He sent in a piece of preserved evidence, a vaginal slide taken during Kalitzke’s autopsy, to a laboratory that returned the sample with a piece of discovered DNA.

“[The lab] was able to swab that slide and identify sperm samples, which ultimately led to a DNA sample, which was fed into a genealogical database, and that was able to identify three known test-takers,” said Sgt. Kadner.

The process, which has become more popular in recent years, is called genetic genealogy and works just how Sgt. Kadner explained.

Evidence from a case is sent to a lab for testing. Once a DNA sample is identified, investigators take it and put it into a genealogical database, similar to 23andMe or Ancestry.com, which has millions of samples from people trying to trace their family history. Once a match-- or in this case, matches-- come back, investigators treat them as leads and get to work.

“[Genealogy testing] was the only way we were able to solve this cold case,” said Cascade County Sheriff Jesse Slaughter.

To people like Sheriff Slaughter, the testing bypasses drawbacks, like only being able to cross-reference investigative data with known criminals in their records. But to professor of civil liberties at New York University, Erin Murphy, making this information known and available is nothing more than a slippery slope.

“You know, I have real concerns about genomic information in the criminal justice system,” she said. “It could end up hurting you in the future. Someone could de-identify you in a covert operation abroad, [or] it could be used to exclude you from military service.”

To ensure things like that do not happen, Maryland and Montana have both passed laws restricting the use of genealogy testing in criminal investigations.

In Maryland, a judge will need to sign off on the practice, which can only be used for serious crimes like murder and sexual abuse. A similar statute exists in Montana, where investigators must first get a search warrant approved by a judge.

Similar legislation is also being discussed in Utah and Washington state, which have both proposed bills in the last year.

A recent study from scientists in Israel found a genealogical database of around 1.3 million people could identify around 60% of people in the U.S. with European descent, showing just how many matches could come from one DNA sample, and in many cases, people who sign up for these websites might not know their information is being used in criminal investigations.

“Legislation of this kind is good for the business interests,” said Murphy. “If you want to put yourself out there as we’re genomic genealogists that does crime-solving, I think there’s a lane for that, but there’s also a lane to say we’re genomic genealogists who believe in your genomic privacy.”

In this case, the country’s oldest known cold case, the suspect’s family members were helpful, and Sgt. Kadner says grateful, as the practice of DNA testing led to their closure.

But Murphy poses the question, “At what cost?”

“From a constitutional perspective, I think it’s a good decision," said Sheriff Slaughter. "But from a 'my ambition to solve those crimes and put those people away,' it is a little bit of a roadblock."