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Statement of City Bar President Samuel W. Seymour on the All Crimes DNA Bill

Last year, the City Bar supported the bill known as the “All Crimes DNA Bill,” which would extend DNA collection to all persons convicted of a misdemeanor or a felony in New York State. The Governor has included this approach in the Executive Budget. We supported this legislation, stressing the value of DNA evidence in helping both defendants and prosecutors since it can be used to assist in the investigation and prosecution of a crime, as well as in the exoneration of the wrongfully accused or convicted.

In order to accomplish both purposes, a DNA regime should afford defendants as well as prosecutors reasonable access to DNA evidence and comparisons. In that vein, we commend the inclusion of provisions in Assembly Member Lentol’s bill, A.5886, which are designed to clarify and expand a defendant’s ability to ask a judge to order DNA comparisons from existing evidence and existing databases, both pre- and post-conviction. We also applaud Chief Judge Lippman’s inclusion of enhanced access to DNA for defendants in yesterday’s State of the Judiciary message. The Senate and Assembly should seize this moment to come to agreement on a DNA bill which effectively serves the needs of both prosecutors and defendants.

While this would be an important step toward decreasing the incidence of wrongful convictions in New York, we note that expanded access to DNA is only one of a number of ways to decrease the incidence of wrongful convictions in New York. We also support increasing the use of recorded interrogations, codifying ‘actual innocence’ claims, clarifying ineffective assistance of counsel claims, and ensuring complete disclosure of exculpatory material.

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2 Responses to Statement of City Bar President Samuel W. Seymour on the All Crimes DNA Bill

  1. Mike Horenstein says:

    I have had profound concerns over this bill, though I admit to having read only journalistic synopses. The Bar’s position doesn’t strike me as fair or evenhanded, despite that it gives the appearance of being so. The idea that such DNA collection can be used to exonerate the innocent appears as a gift that is in fact superfluous: where a crime is committed and DNA evidence is available that may assist in exoneration, the innocent defendant can be tested and DNA collected, then and for that purpose. When there is DNA evidence of another party, not the defendant, it is already exculpatory.

    It strikes me there ought to be some trace concern for privacy rights and the fact that DNA collection could be put to innumerable uses -not least of which is eugenic. Privacy is a concept difficult to define; except, largely, in the negative as freedom, relief or mitigation from inspection or intrusion. There is brilliance in the brevity of the Constitution that lies in unenumerated rights; and ‘privacy’ is in fact a penumbra of rights, the extent of which we cannot determine abstractly ex ante.

    Misdemeanor crimes (or lesser crimes of ‘bad demeanor’ or ‘conduct’) just don’t seem to legitimate collection of such intrusive and scrutinizing evidence. There is good reason why misdemeanors usually do not result in the loss of civil rights, as is the case with felonies. And there is a parallel here. Moreover, should such evidence be permitted to be examined for the propensity for antisocial behavior, if such a test be possible? Should it then be permissible –when it will clearly be tempting – to subject individuals whose DNA indicates such a propensity to investigation or interrogation , or to permit their identification as a ‘person of interest’ for future crimes? DNA will continue to present a potential Pandora’s Box. We cannot know the extent to which future authority can have knowledge of our persons in ways unknown even to ourselves. A database that retains such knowledge cannot be compared with , for example, fingerprints.

    Limiting collection to felons substantially lessens the likelihood that DNA collection can be put to any other systematic use.

  2. Mike Horenstein says:

    I should furhter add that insofar as taking such DNA evidence is inimical, should misdemeanor wrongs in one’s youth expose a person for the rest of his or her life?