tent of the privacy intrusion.59


Despite their


general agreement in these areas, the tri- al courts all varied slightly with respect to their constitutional analyses.


In Rutland, Judge Cortland Corsones,


in State v. Hewitt, et. al, struck down the statute because it did not fulfill a special need at all. Having rejected the four spe- cial needs advocated by the state and rec- ognized in Martin, Judge Corsones struck down the statute at the first step in the analysis.60


Judge Corsones went on in dic-


ta, however, noting that even had the stat- ute served a special need, it still would have failed the subsequent balancing test because the defendants had merely been charged with a felony and had pled not guilty, so they continued to retain a greater expectation of privacy than those ultimate- ly convicted.61


By this reasoning, Judge


Corsones concluded that the privacy inter- est at stake in these circumstances is con- siderably greater than that at issue in Mar- tin. On the other side of the balance, the governmental interest is low, as applied to this particular class of defendants, because “if the defendant is not convicted of a fel- ony or other listed crime, then the DNA sample and concurrent records must be destroyed.”62 In State v. Medina, Judge Helen Toor of the Addison Superior Court disagreed with Judge Corsones at the first step in the


analysis. Her ultimate result, however, was the same. Judge Toor held that, although the search served a “special need” of law enforcement, “[t]he State did not meet its burden of proving that its need for [the de- fendant’s] DNA during the short period be- tween his arrest and his possible convic- tion outweighed his privacy rights as an ar- raigned defendant presumed to be inno- cent.”63


the Vermont Forensic Laboratory, testi- fied on behalf of the state and spoke about DNA in general and the procedural steps that comprise a valid sampling.67


DNA con-


tains certain information that can be mined to identify an individual.68 explained:


Furthermore, the court found the


state’s analogy to fingerprinting misplaced because, despite the widespread use of fingerprinting in the criminal justice sys- tem, there is actually no clear constitutional foundation for permitting law enforcement to fingerprint an individual after arrest.64


In


addition, Judge Toor recognized that the DNA, once obtained, would be retained ad infinitum: “We are not talking merely about a quick check of the name of the de- fendant: we are talking about unlimited re- views of his DNA in the future for purposes other than that.”65


In each of these challenges, the Rutland and Addison superior courts declined to hold an evidentiary hearing. This was not the case in Chittenden Superior Court. The hearing that occurred in that court pro- duced significant evidentiary testimony re- garding the specific information contained in a collected DNA sample and the proto- col used to guarantee privacy.66 Dr. Margaret Schwartz, the Director of


Each person has twenty-three pairs of chromosomes. Within the structure of the chromosome are a number of loci (locations or positions in the genome) identified as functional units. The al- phanumeric “names” of the loci iden- tify locations on a chromosome.”… DNA profiling is a process that analyz- es a sample of an individual’s DNA at specific loci to observe the variations in the individual alleles, because that pattern provides unique identification of an individual.69


CODIS, the national DNA database, focus- es on thirteen such loci, which are uniform- ly used across the country to create DNA profiles.70


Dr. Schwartz testified regarding


the safeguards employed when a profile is created and uploaded onto CODIS. These include: (1) a thorough review process to make sure the DNA sample matches the in- dividual; (2) a similar review to ensure that each profile is properly uploaded into the right database; (3) the immediate removal


As Dr. Schwartz


www.vtbar.org


THE VERMONT BAR JOURNAL • WINTER 2013


21


A Bridge Too Far: The Upcoming Mandatory DNA Sampling of Arrestees


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