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‘Presumed Innocent’ Is For Trials, Not Arrests

People who have been arrested but not tried have many important rights. A right to anonymity is not among them.

When someone is arrested, part of the booking process is taking the suspect’s photograph and fingerprints. Why? Because the police need to identify the person they have in custody using a method more reliable than taking the suspect’s word for it.

In many states, including Maryland since 2009, law enforcement officials take a DNA sample for precisely the same reason.

In April, however, Maryland’s highest court struck down a law authorizing such DNA collection. In turn, the U.S. Supreme Court has expressed interest in resolving the conflict between this decision and several other state-level decisions that have upheld such legislation. Chief Justice John Roberts Jr. wrote a four-page order suspending the Maryland ruling until the Supreme Court can consider the case when the court returns from its recess.

The Wall Street Journal reported that a spokeswoman for Maryland Gov. Martin O’Malley said Roberts’ order was a “step in the right direction.” On the other hand, privacy advocates have argued that DNA collection violates the Fourth Amendment. The Maryland Court of Appeals said that “the presumption of innocence bestows on [people who are arrested] greater protections than convicted felons, parolees, or probationers.”

Presumption of innocence is a trial concept, however, not a police concept. If presumption of innocence applied at the police station, then presumably all suspects would be released and sent home.

Police are free to search their records to see if they’re looking for a suspect for any other reason, once he or she is in custody. If they are, that is far from a presumption of guilt in the outstanding case. The person just happens to be someone the police were already looking for. This is true in instances where the match is made via fingerprints, and it should be equally true of instances where the match is made through DNA.

I have very little doubt that the Supreme Court will uphold DNA sampling, assuming three justices agree with Roberts that the high court should take the case. I don’t think the decision will be an especially close one. In his preliminary ruling, Roberts called DNA collection in this context “a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population.”

Context is important. Taking DNA samples from individuals who are under arrest is not the same as taking it from people who are randomly stopped on the street. If the police arrest you, they are required to have, at minimum, probable cause to think you are guilty of a specific offense. The laws in question have to do with processing protocol for people who have already been arrested.

Very few privacy advocates would go so far as to argue that the police should not be able to fingerprint individuals who are under arrest. In the same way, the discussion over DNA collection applies to specific identification of people held for a specific purpose.

Fingerprinting has long been standard procedure. It’s likely that, soon, DNA sampling will become just as routine. The Supreme Court seems ready to hasten that day.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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