States are working to pass laws that restrict DNA testing in criminal investigations

Recently, Montana investigators solved what is believed to be the oldest known cold case in the United States after the murders of two teenagers in 1956.

But the DNA test sleuths used are now being restricted as more states seek to pass laws banning certain genealogy tests for law enforcement.

On January 3, 1956, the bodies of 18-year-old Dwayne Bogle and 16-year-old Patty Kalitzke were found face down, miles apart, with gunshot wounds to the head. Detectives from the Cascade County Sheriff’s Office worked tirelessly on the case, finding over 35 suspects who all turned out to be unlikely culprits in the case.

Then, in 2019, Detective Sergeant. John Kadner decided to try something.

He sent a preserved piece of evidence, a vaginal slide taken during Kalitzke’s autopsy, to a lab which returned the sample along with a discovered piece of DNA.

“[The lab] was able to take this slide and identify semen samples, which ultimately led to a DNA sample, which was entered into a genealogy database, and which was able to identify three known test persons,” said Sgt . Kader.

The process, which has become more popular in recent years, is called genetic genealogy and works just like Sgt. Kadner explained.

Evidence of a case is sent to a laboratory for testing. Once a DNA sample is identified, investigators take it and place it in a genealogy database, similar to 23andMe or Ancestry.com, which contains millions of samples from people trying to trace their family history. Once a match – or in this case, matches – comes back, investigators treat them as leads and get to work.

“[Genealogy testing] was the only way to solve this cold case,” Cascade County Sheriff Jesse Slaughter said.

For the likes of Sheriff Slaughter, the tests circumvent drawbacks, such as only being able to cross-reference investigative data with known criminals in their files. But for New York University civil liberties professor Erin Murphy, making this information known and available is nothing more than a slippery slope.

“You know, I have real concerns about genomic information in the criminal justice system,” she said. “It could end up hurting you in the future. Someone could anonymize you during a covert operation abroad, [or] it could be used to exclude you from military service.

To make sure such things don’t happen, both Maryland and Montana have passed laws restricting the use of genealogy testing in criminal investigations.

In Maryland, a judge will have to approve the practice, which can only be used for serious crimes like murder and sexual abuse. A similar law exists in Montana, where investigators must first obtain a search warrant approved by a judge.

Similar legislation is also being discussed in Utah and Washington state, both of which proposed bills last year.

A recent study by Israeli scientists found that a genealogy database of about 1.3 million people could identify about 60% of people in the United States of European descent, showing how many matches could come from a sample DNA data and, in many cases, people who sign up for these websites might not know that their information is being used in criminal investigations.

“Legislation like this is good for commercial interests,” Murphy said. “If you want to portray yourself as genomic genealogists who solve crimes, I think there’s a way for that, but there’s also a way to say we’re genomic genealogists who believe in your genomic privacy.”

In this case, the nation’s oldest known cold case, the suspect’s family members were helpful and Sgt. Kadner says he is grateful, as the practice of DNA testing led to their closure.

But Murphy asks the question, “At what cost?”

“From a constitutional standpoint, I think it’s a good decision,” Sheriff Slaughter said. “But from a ‘my ambition to solve these crimes and lock up these people’ perspective, that’s a bit of a hindrance.”

Mark M. Gagnon