A young prosecutor faces a dilemma: The statute of limitations is about to expire in an assault case. The prosecutor has the assailant's DNA—derived from blood left at the crime scene—but there is no match in the government's DNA database. What is she to do? The answer may be to indict the assailant's unique DNA profile, prior to expiration of the statute of limitations, and then wait for the genetic information of a relative of the assailant to appear in a commercial DNA database. Eventually, the search of such a database may identify the assailant's genetic relatives and thereby lead to the assailant. The prosecutor can then amend the "DNA indictment" to include the assailant's name and the case would proceed as any other criminal prosecution.

Although the science of DNA identification is relatively new, prosecutors have used, and courts have upheld, so-called "John Doe" indictments for decades. Their lawfulness has been judged through the prism of the Fourth Amendment's particularity requirement and the Sixth Amendment's speedy trial requirement. DNA indictments, widely upheld as constitutional by both state and federal courts, are merely an extension of that technique and Congress has even passed a statute enabling their use.

With the explosion of consumer-oriented genetic testing services, law enforcement authorities are increasingly turning to commercial databases to identify familial DNA matches that can be used to identify criminal suspects. Several recent high-profile arrests of suspected serial killers, identified through familial DNA searches, have further proliferated the use of this technique. Until recently, most of the reported law enforcement searches of commercial databases had been undertaken without the need for a warrant, as officers simply accessed the publicly available features of such databases. Florida's Ninth Judicial Circuit Court, however, recently approved a search warrant allowing police to "override the privacy settings of [the database's] users and search the site's full database of 1.2 million users." Kashmir Hill and Heather Murphy, Your DNA Profile is Private? A Florida Judge Just Said Otherwise, The New York Times, Nov. 5, 2019. Details about this warrant, which was disclosed by a Florida detective presenting to a recent law enforcement convention, are sparse. Yet there is no question that law enforcement's use of consumer genetic testing databases will soon grow exponentially.

Below we examine the increasingly common use of John Doe indictments in cases involving DNA evidence. There is no need, of course, for a John Doe or DNA indictment with respect to crimes for which there is no statute of limitations. In such cases, there are nonetheless other issues raised by the burgeoning law enforcement effort to search commercial databases, most significantly: the basis for establishing probable cause.

John Doe and DNA Indictments

Since at least the 1970s, long before the use of DNA evidence in criminal cases, law enforcement authorities have successfully employed John Doe indictments, John Doe warrants, and other description-based devices to initiate criminal proceedings in cases with sufficient evidence to identify the accused via pseudonym or personal characteristics, but not by name. The goal of such devices is to toll the statute of limitations until the accused can be identified by name (or in some cases to support the arrest of an individual whose true identity is unknown).

Courts around the country have generally accepted the use of John Doe instruments. Their constitutionality is essentially determined by whether they satisfy the Fourth Amendment's particularity requirement that they describe the defendant with sufficient detail such that the accused can determine that he or she has been charged with a crime. See U.S. Const. amend. IV. ("[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.") (emphasis added). While there is no magic formula for the essential elements of a John Doe indictment, common components include the accused's approximate age, race, hair color, weight, eye color, height, nicknames, regular locations, and other unique physical characteristics. See U.S. v. Espinosa, 827 F.2d 604 (9th Cir. 1987); U.S. v. Doe, 401 F. Supp. 63 (E.D. Wis. 1975); U.S. v. Ferrone, 438 F.2d 381 (3d Cir. 1971). Several states have even codified the power to charge an individual through a John Doe indictment. See, e.g., Ariz. R. Crim. P. 13.2, cmt.; Wis. Stat. §968.04(3)(a); N.H. Rev. Stat. §592-A:7.

After filing a John Doe indictment, law enforcement authorities may continue their investigation until identifying the suspect, at which point the indictment is amended with the suspect's name and other identifying biographical and personal information. Once the John Doe indictment has been amended, the case proceeds as any other criminal matter.

DNA evidence has been used to link suspects to crime scene genetic evidence since at least the late 1980s. See State v. Woodall, 182 W. Va. 15 (1989). While DNA evidence is generally accepted as reliable, it is not free from criticism. Errors in collection or processing of samples, outside contaminants, and misinterpretation by the lay people on juries can all cause problems with DNA evidence. Nonetheless, in cases where the perpetrator leaves behind clear physical evidence, prosecutors have used DNA evidence to initiate charges.

DNA indictments are essentially a species of John Doe indictment containing one extremely personal and identifiable piece of information about the accused: his or her unique genetic information. In a DNA indictment, the prosecutor indicts the (unnamed) defendant's unique genetic profile. Since a case has been initiated, the indictment satisfies the statute of limitations, even though law enforcement continues to seek the accused's identity. DNA indictments are only useful, of course, where the crime scene contains DNA that necessarily belongs to the perpetrator (in addition to the victim(s)). While a DNA indictment may be unavailable where the crime scene contains DNA evidence from multiple individuals, familial searches, see below, may help identify those present at the scene, enabling investigators to isolate the DNA of the perpetrator. Generally, this technique is used in sexual assault cases, but has also been used in cases involving letter threats, burglaries, and other acts of violence.

Despite the unique nature of DNA profiles, DNA indictments have been challenged primarily on two separate grounds: the Fourth Amendment's particularity requirement and the Sixth Amendment's speedy trial provision. As for the former, the concern is that DNA indictments do not describe the accused with sufficient particularity to either: (1) identify the individual who is being accused or (2) to inform the accused that he or she has been charged with a crime. While DNA profiles are uniquely identifying, because they are hardly known to the individual, they leave the accused with no notice of the charges. In response, law enforcement proponents of DNA indictments have argued, with mostly success in state appellate courts, that there is no more unique identifier for an individual than his or her DNA profile. The uniqueness of the identifying information should eliminate concerns that law enforcement will arrest and try an individual other than the one identified in the indictment. As a California appellate court concluded: "State courts that have considered the validity of a warrant that described the suspect by his DNA profile have concluded that a unique DNA profile qualifies as a reasonable means of identifying the subject of a warrant or complaint when that DNA profile is the best description available." People v. Robinson, 47 Cal. 4th 1104, 1133 (2010).

The Sixth Amendment's speedy trial requirement, which provides that "the accused shall enjoy the right to a speedy and public trial," also poses concerns for DNA indictments. U.S. Const. amend. VI. Law enforcement proponents of DNA indictments argue that there are no speedy trial concerns because DNA evidence is reliable and does not deteriorate over time. See U.S. v. Moore, 2016 WL 2591874, at *2 (E.D. Mich. May 5, 2016) ("DNA evidence is unique in that it retains its reliability for decades."). Indeed, the Seventh Circuit recognized that Congress extended the statute of limitations period in DNA cases (as discussed below) "because DNA evidence is uniquely precise." U.S. v. Hagler, 700 F.3d 1091, 1098 (7th Cir. 2012). Critics, however, argue that DNA indictments disincentivize prompt investigations, and in effect render statutes of limitations meaningless, impairing the defendant's ability to mount a defense. While the DNA evidence may not deteriorate, other potentially exculpatory evidence may, leaving the defendant to face strongly preserved DNA evidence with little preserved exculpatory evidence.

Notwithstanding these objections, state courts have by and large affirmed the use of DNA indictments. At least 10 states, including New York, currently permit DNA indictments and we are aware of no reported state case that has categorically barred them. People v. Laster, 78 A.D.3d 1479 (4th Dept. 2010); People v. Martinez, 52 A.D.3d 68, 73 (1st Dept. 2008). Courts have prevented the use of DNA indictments in cases where it appears that the prosecution has abused the tolling of the statute of limitations. State v. Pettry, 2017 WL 1506092 (April 27, 2017 Ohio Ct. App., 8th District).

As for the federal system, as noted above, in 2004 Congress enacted a statutory suspension of federal statutes of limitation in cases linking a defendant to DNA evidence. Advocates for this statute argued that statutes of limitations for DNA-linked offenses were not beneficial because the reliability and dependability of DNA evidence does not diminish over time. The statute, Title 18, U.S.C. §3297 provides as follows:

In a case in which DNA testing implicates an identified person in the commission of a felony, no statute of limitations that would otherwise preclude prosecution of the offense shall preclude such prosecution until a period of time following the implication of the person by DNA testing has elapsed that is equal to the otherwise applicable limitation period.

The federal statute of limitations thus now begins to run "at the moment when DNA evidence implicates someone in the crime," essentially creating an analog to the discovery rule for cold cases with DNA evidence. See U.S. v. Sylla, 790 F.3d 772, 774 (7th Cir. 2015). DNA "implicates" an individual for §3297 purposes when it can be used to identify a specific individual, not at the time of DNA collection. U.S. v. Hagler, 700 F.3d 1091, 1098 (7th Cir. 2012). Since its passage, §3297 has been used to toll the statute of limitations for defendants charged with offenses stemming from bank robberies, other armed robberies, and sexual assault and murder cases. Sylla, 790 F.3d 772; U.S. v. Kiel, 2014 WL 2710955 (S.D. Miss. June 16, 2014); U.S. v. Hano, 2016 WL 3917525 (M.D. Fla. July 20, 2016); Moore, 2016 WL 2591874; United States v. Lopez, 860 F.3d 201 (4th Cir. 2017).

DNA Indictments and Familial Searches

DNA evidence has had one very practical limitation: it has historically been useful only where the perpetrator's DNA was previously collected and processed in a law enforcement database, such as the Combined DNA Index System. This limitation rendered DNA evidence a powerful tool for identifying repeat offenders, but less helpful in cases where the perpetrator lacked a criminal record. No longer. Why? Law enforcement authorities have increasingly turned to "familial DNA searches," in which crime scene DNA is tested against partial matches to find DNA-linked relatives of the perpetrator. With that lead, traditional investigative work is then used to identify the defendant.

While familial DNA searches are generally conducted through law enforcement DNA databases, authorities have also turned to public genetic testing services to identify suspects. Familial searches have famously been used in recent years to arrest suspected notorious killers, including Joseph James DeAngelo, known as the "Golden State Killer," Lonnie Franklin, the "Grim Sleeper," and Jerry Westrom. At least nine states—California, Colorado, Wisconsin, Virginia, Michigan, Texas, Wyoming, Utah, and Florida—have created policies for law enforcement's uses of familial DNA searches. See Study of Familial DNA Searching Policies and Practices: Case Study Brief Series, Michael B. Field, Saniya Seera, Christina Nguyen, and Sara Debus-Sherrill, National Criminal Justice Reference Service, August 2017.

As the use of public genetic testing services increases, more and more people are voluntarily making their genetic information publicly available. Estimates put the number of people who have used consumer-DNA testing products at over 12 million—about 1 in 25 American adults are estimated to have tested for their genetic profile. Antonio Regalado, 2017 was the year consumer DNA testing blew up, MIT Technology Review, Feb. 12, 2018. The consumer-DNA testing industry, which includes educational and genealogical testing services like AncestryDNA, is projected to surpass $10 billion by 2022. DNA Testing Market Worth $10.04 Billion By 2022: Grand View Research, Inc., January 12, 2016. See also Bruce Carlson, Direct-To-Consumer Genetic Testing – Market Expected to Triple in Five Years, Kalorama Information, Feb. 22, 2018 (discussing growth in genetic health testing market). As this number grows, more and more people will upload their genetic profiles to one or more of the commercially available DNA databases.

Law enforcement authorities will be waiting. Indeed, in any case where the authorities are able to gather meaningful DNA evidence from a crime scene, an increasingly available option will be to indict the DNA (if there is a need to toll a statute of limitations); periodically run familial searches on public databases until an unwitting relative of the perpetrator uploads a DNA profile that at least partially matches the DNA found at the scene; and then use traditional gumshoe techniques to trace back to the perpetrator. Such a process raises a host of issues implicating science, policy and criminal procedure.

Critics of familial DNA searches argue that the searches are racially disproportionate and that African-American and Hispanic individuals are more likely to be included, and subsequently indicted, in the searched DNA databases. Critics also argue that familial searches can intrude on the privacy interests of a suspect's innocent relatives. In response to these concerns, among others, both Maryland and the District of Columbia have banned the use of familial searches. Md. Code Ann., Pub. Safety §2-506(d); DC Code §22-4151(b).

Familial searches are also, as yet, untested in the courts. It seems eminently foreseeable that a relative who has served as the match with a suspect's DNA will end up challenging the familial search as a violation of his or her Fourth Amendment right to be free from governmental search without a warrant. Genetic testing companies are attempting to balance the public nature of their product with consumers' privacy concerns. Addressing consumer complaints about voluntary sharing, several consumer testing services have taken steps to protect their databases and the personal data of users. For instance, the service 23andMe assures members that it "will not provide [customer] information to law enforcement or regulatory authorities unless required by law to comply with a valid court order, subpoena, or search warrant for genetic or Personal Information." Privacy and Security, 23andMe (effective Jan. 1, 2020). Ancestry likewise advises that it will only share personal information with law enforcement if it believes it is "reasonably necessary" to comply with a valid legal process such as a subpoena or a warrant. Your Privacy, Ancestry.com (effective Dec. 23, 2019). Both companies, 23andMe and Ancestry, also post Transparency Reports that provide updates regarding governmental requests for information. Transparency Report, 23andMe (last accessed Jan. 12, 2020). Ancestry 2018 Transparency Report, Ancestry.com (last accessed Jan. 12, 2020).

While 23andMe and Ancestry do not make user information public or easily accessible to law enforcement, other genetic testing and information services do. The genealogical analysis site GEDmatch was famously used in 2018 as part of the search to identify the Golden State Killer. And the service FamilyTreeDNA recently apologized to customers for failing to disclose that it had shared genetic information with law enforcement officials. Mathew Haag, FamilyTreeDNA Admits To Sharing Genetic Data with F.B.I., The New York Times, Feb. 4, 2019. Genetic testing services will no doubt struggle to balance the relationship between access and protecting customer data as their use expands. Still, when combined with DNA indictments and familial searches, these platforms will almost certainly be increasingly used as tools of law enforcement.

The next phase of the debate will involve compelled government access to private commercial databases as authorized by court order, such as a search warrant. As noted above, at least one court, in Florida, has apparently authorized such a warrant. Hill, supra, note 1. Though there appears to be no public access to the warrant application, the warrant itself, or any judicial decision addressing its validity, the criminal procedure issues raised by such a potential warrant are many, including, most fundamentally: How did the warrant demonstrate probable cause that any given database would have a match (or partial match) with the suspect's purported DNA?

Implications for the Future

As interest in genetic testing continues to grow, smart prosecutors will rely on DNA indictments in order to preserve cases that would otherwise pass the statute of limitations. The need for DNA indictments may diminish over time, however, due to statutory changes. Federal law already prevents the statute of limitations from barring cases relying on DNA evidence. And in the wake of greater attention to prosecuting sexual assault and misconduct cases, several states have extended or eliminated statutes of limitations for sex-related crimes and related civil actions, reducing or eliminating the need for DNA indictments in such cases. The efficacy of DNA indictments would also be impaired should more states follow the path of Maryland and the District of Columbia by prohibiting the use of familial searches.

Apart from those potential changes to the legal landscape, however, what seems clear is that DNA databases—both commercial and governmental—will continue to grow. The commercial market is rapidly expanding of its own accord. And following the success of familial searches in identifying suspects and aiding in the prosecution of cold cases, government agencies are incentivized to increase their DNA collections and thereby grow the size of their own databases in which they can conduct both primary and familial searches. This government incentive will only increase should consumer genetic testing services take stronger steps to protect customer information. With consumer databases seeking to exclude government access, law enforcement authorities will likely turn to search warrants and attempt to replicate the apparent success of the Florida prosecution discussed above.

Kraig Ahalt is an associate and Jeffrey A. Udell is a partner at Walden Macht & Haran.