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The Government Can Seize Your DNA – Even if You Are Not a Defendant

It has long been established that the government can seize personal information from criminal defendants, from fingerprints to items (such as hair, saliva, or blood) to obtain a DNA profile.  But what happens when the government wants to obtain a DNA profile from a third party?

Last week in Commonwealth v. Christopher Kostka (Appeals Court docket 13-P-1576), the Massachusetts Appeals Court ruled that a judge could order a murder defendant’s twin brother to provide a sample of his DNA to exclude him as the source of biological material that was found under the victim’s fingernails.  The victim was stabbed to death during a home invasion and the defendant’s brother was charged with her murder.  The brother’s DNA matched the biological material taken from the victim.  If the defendant and his brother are identical twins, they will share the same DNA profiles and the Commonwealth will be unable to prove which brother’s DNA was left at the crime scene.  If, however, the defendant and his brother are fraternal twins (as expected by the Commonwealth), they will have different DNA profiles and one of them will be excluded as the source of the DNA found on the victim.

The brother who was not charged with murder defied a superior court judge’s order to provide a buccal (inner cheek) swab that would allow the state laboratory to produce his DNA profile. He was found in contempt and appealed. The Appeals Court relied on the rule announced by the Supreme Judicial Court in Commonwealth v. Draheim, 447 Mass. 113 (2006): where the prosecutor can establish probable cause that a crime has been committed, and the DNA sample of a third party would probably provide evidence relevant to the question of the defendant’s guilt, the court can order the third party to provide a DNA sample. In this case, the Appeals Court found that the Commonwealth had established its burden. Connecting the DNA found at the murder scene to only one of the brothers would be relevant to the guilt of the brother charged with murder. The Appeals Court further considered the seriousness of the crime and the fact that there is not a less intrusive means of obtaining the evidence in concluding that the superior court’s order was appropriate.

It seems unbelievable that the government would be able to order someone who has not been charged with a crime to provide a copy of his or her DNA. Anyone who receives such an order should immediately consult a criminal defense attorney to explore legal options.

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