Even if Acquitted, State Gets to Keep Your DNA

Under an Ohio Supreme Court ruling earlier this month, prosecutors can keep your DNA on file to use as evidence for future cases — even if you were ultimately acquitted on the charges for which they took your DNA to begin with.

In the case before the Court, the state took DNA from Cleveland man Dajuan Emerson while he was under investigation for rape in 2005. Police found seminal fluid on the victim. The DNA could not be attributed to Emerson, and he was acquitted of the charges. However, the state still entered his DNA into a DNA database as a digital profile. Two years later, Cleveland police investigating a murder found blood with DNA that did not match the victim’s. When they ran it through the state database, they found it matched Emerson’s. He was found guilty and sentenced to 25 years to life in prison.

Emerson’s lawyers argued that a person has a privacy interest in his or her DNA, and that, therefore, keeping the DNA of people who had been acquitted constituted a violation of that person’s Fourth Amendment constitutional right against unlawful searches and seizures. However, the court decided that since the state digitally creates a “DNA profile,” it becomes the state’s work product and it is within the state’s power to keep it. The state database, maintained by the Bureau of Criminal Investigation under the Attorney General’s Office, maintains about 500,000 digital profiles with the DNA of those convicted of felonies and those suspected of felonies.

It’s not clear the extent to which the state can continue to collect and maintain its DNA database. What is clear, however, is that the stakes are higher to keep your DNA out of the hands of the state.  Even if the state cannot build a sufficient case against you, they can use the evidence they do have for future prosecutions. If you have an experienced criminal defense lawyer on your side, however, that lawyer may be able to argue why your DNA should not be submitted at all.

The state is being allowed to encroach on your privacy under this ruling. If you give prosecutors an inch, they’ll take a mile. If you’re charged with any crime, it’s important to have an advocate who will vigorously fight the charges.