OPINION: 'Partial-match DNA' is a tool NY needs

Denise E. O'Donnell is New York State's Deputy Secretary for Public Safety and Commissioner of the state Division of Criminal Justice Services.

If a forensic scientist stumbles upon evidence that may stop a serial rapist or murderer, or exonerate an innocent individual, should he or she be permitted to share that information with law enforcement? Common sense says of course.

Unfortunately, that's currently not the case in New York. Forensic scientists don't have the authority to disclose to police the fact that, while a DNA pattern from a crime-scene sample does not match a profile in the state DNA Databank, it is so close that a blood relative to someone in the database may be implicated.

The Commission on Forensic Science, which I chair, recently voted to grant scientists the authority to report near matches to law enforcement, as long as they are discovered inadvertently, using currently authorized search criteria. But the policy change is being opposed by the New York Civil Liberties Union, which believes it invites a violation of privacy rights - even though the matches are found by accident.

Forensic scientists have been legitimately concerned that the lack of a "partial-match DNA" policy seems to bar them from disclosing information that could help police identify and stop a violent criminal. They are permitted to report only if a crime-scene DNA sample exactly matches a profile in the databank - nothing less.

The number of shared alleles, the number of identical loci or the number of shared rare alleles - such DNA markers can indicate close genetic relatives to a suspect, thus greatly narrowing the pool of potential suspects, shielding innocent individuals from being unnecessarily investigated and protecting the public. Scientists have felt the inability to share that information puts them in an ethical bind.

The Darryl Hunt-Willard Brown case in North Carolina illustrates the importance of near-match technology. Darryl Hunt served 19 years in prison for the rape and murder of a newspaper editor before an analysis of crime-scene DNA proved that he did not commit the crimes. The DNA was strikingly similar to the DNA of a felon whose profile was in the databank, Anthony Brown.

Knowing that the culprit could be a close blood relative of Brown's, detectives obtained DNA from his brother, Willard, from discarded cigarettes and saliva. They found that it perfectly matched the crime-scene profile; Willard Brown confessed.

If this case had been in New York, forensic scientists would not have been authorized to tell police that the perpetrator was probably a blood relative of Anthony Brown's, and the rapist-murderer still would be free.

If adopted, New York's new policy will differ from a more controversial practice - familial searching - which allows scientists to actively search for relatives of offenders in the DNA database and narrow the focus of searches to certain geographic locations and neighborhoods. This practice is used in California, Colorado and Britain.

Familial searching is of growing interest in forensic science, but policy and protocols to regulate the process still are being developed. Critics raise concerns that it unfairly targets certain families and neighborhoods with a high incidence of crime. So we will closely monitor the progress of familial searching - as well as the privacy and civil liberty concerns - as the technology evolves.

But the partial-match policy we've adopted carefully balances scientific, public safety and civil liberties issues, effectively addressing each and shortchanging none. This measured solution respects the public's rights to safety as well as to privacy.