The alarm is sounding
An affidavit filed by an expert genetic genealogist in an Idaho murder case ought to have alarm bells ringing throughout the genealogical community.
All of us — The Legal Genealogist included — want to use DNA as a tool in researching our family histories.1
And all of us who use DNA as a tool in researching family history want (or should want) DNA to be used ethically and responsibly in every corner of the genealogical world.
That includes the corner of genealogy called investigative genetic genealogy — IGG for short — the use of DNA to identify human remains and solve crimes.
The affidavit, filed as part of a defense motion for access to the underlying facts of the DNA investigation in that case, states flatly that ethical and responsible use of DNA hasn’t always been the rule in IGG cases.2
Now… a bit of background. Remember that there were ethics rules developed for the use of DNA in genealogy long before the first law enforcement case that included IGG.3 After the first public case using IGG — the Golden State Killer case — a firestorm erupted over the decision of some genetic genealogy databases to allow law enforcement access to consumer matching data without the consent of the test takers.4 That was followed by the development of specific guidelines for IGG cases by the United States Department of Justice.5
Despite these ethical rules, there have long been rumors swirling that the rules weren’t being fully followed. And now those rumors have been given tangible form.
Dr. Leah Larkin, who blogs as The DNA Geek and whose work underlies some of the most useful tools in genetic genealogy such as What Are the Odds (WATO) at DNA Painter, set out five specific situations in which problems have occurred in the use of genetic data despite the ethical rules:
“a. A case in which the chain of custody failed and the wrong SNP profile was sent to the wrong client.6
b. Investigative genetic genealogists uploading SNP profiles to a forbidden database in violation of that company’s Terms of Service and the Department of Justice Interim Policy.
c. Forensic genetic genealogy being used for a case that did not meet the Department of Justice threshold.
d. Investigative genetic genealogists using security loopholes to see DNA kits who are opted out of forensic matching at GEDmatch and FamilyTreeDNA.
e. A case in which a SNP profile was performed on an innocent woman, a potential Fourth Amendment violation of her right to privacy, and uploaded to GEDmatch without her knowledge or consent.”7
Now… it’s not likely that the facts underlying these assertions will be fully aired in the Idaho case. They’re likely to be considered tangential to the main issue in that case, and a full hearing on their accuracy and scope isn’t likely to be necessary to resolve the question of whether the defense can have access to the background information it wants.
But they are — they should be — deeply alarming and concerning to all of us as genealogists who use DNA.
They should be taken as the canary in the coal mine for all of us who care about ethical and responsible use of this tool.
They’re a warning that we need to police our own community. To be sure that DNA remains an available tool for those who are ethical and responsible, and doesn’t get limited because of the actions of those who are not.
It’s never been a matter of whether investigative genetic genealogy should be done.
It’s always been a matter of how investigative genetic genealogy should be done.
It has to be done right.
And there must be consequences for those who do it in a way that is knowingly wrong.
Cite/link to this post: Judy G. Russell, “Not whether, but how,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 13 Aug 2023).
SOURCES
- Or at least we should want to use it — it’s a great tool. ↩
- Affidavit of Leah Larkin, 8 August 2023, State v. Kohberger, No. CR29-22-2805, Second Judicial District, Latah County, Idaho; , accessed 13 Aug 2023. ↩
- See generally Genetic Genealogy Standards, released 10 January 2015. ↩
- See generally Judy G. Russell, “Withdrawing a recommendation,” The Legal Genealogist, posted 15 May 2019 (https://www.legalgenealogist.com/blog : accessed 13 Aug 2023. And see ibid., “Opt-out is not informed consent,” posted 31 Mar 2019. ↩
- See ibid., “Justice Department issues DNA guidelines,” posted 29 Sep 2019. ↩
- By the way, I can confirm that this has happened, without fault of any test taker. I myself acquired a set of data for another person when the testing lab erroneously linked my kit number to that data set. ↩
- ¶ 22, Larkin affidavit, PDF page 6. ↩
I think something that is equally concerning is the use of unqualified ‘experts’ being used by the defense in these cases. It’s pretty easy to confuse a jury with technobabble about SNPs and centimorgans. I hope equal attention is being paid to certifying knowledgeable experts in the field to testify.
There is no effective system for certifying experts in many fields, IGG being only one such.
EVERYBODY HAS A BOSS! Therein lies the problem with law enforcement in general. From the FBI down to the smallest police department pressure is brought by superiors to solve crimes especially in cases of crimes of horrors like serial killings, those of children, etc. As pressure is brought on by superiors, the underlings sometimes cross the lines, PD officers lying under oath, prosecutors coaching a witness to the fine line of lying under oath. This series of lying horrors goes right up thru chiefs, mayors, state congressmen/women, all the way into Washington, right on up including our President. Shame on us! How do we break this chain of lies and deceit?
I don’t know, Stan. But accountability is essential.
An answer needs to appear like yesterday..Maybe muchof that can begin in this Trial..it is full of corruption and poor ethical behavior.An example has to be set..hold all accountable. From the foor up- nobody gets a free pass to continue this nosense.I won’t accept our Justice System is this broken..
I find it interesting that you say that these issues are tangential to the Idaho case. I would hope that the defence will have the chance to get the genetic genealogy work reviewed by their expert and that they will be able to question the genealogists and the IGG companies to ask which databases were used. If it transpires that loopholes and/or unauthorised databases were exploited isn’t this likely to be put the credibility of the whole investigation into doubt?
The case in which a SNP profile was uploaded to GEDmatch without consent is public knowledge and is discussed here:
https://thednageek.com/book-review-i-know-who-you-are-by-barbara-rae-venter/
In general, from a legal perspective, the issue is guilt or innocence, not how evidence was found. If the DNA of the suspect matches the DNA from the crime scene, it may very well be considered tangential as to how the investigators got the identification of the suspect in order to get the DNA sample from him. That’s what’s so difficult, legally, about raising the rights of the innocent third parties whose samples may have been used.
It would have been a professional courtesy, Debbie, if you had checked with me as to the accuracy of the information that you quoted from a biased source–at the time that Leah wrote her blog (March 1, 2023) she apparently was already working for the defense. I told her in a phone conversation that the woman in the case described in my book was a potential suspect but she chose to leave out that rather important piece of information.
Barbara, According to the affidavit, Leah was hired by the defence in the Kohberger case on 27th July long after this blog post was written. I don’t think it makes any difference whether or not the woman was a suspect. You know that I strongly disapprove of the use of genetic genealogy in these baby doe cases and the inappropriate prison sentences that are now being handed out in the US. All my genetic genealogy friends in the UK and Ireland feel the same way and the UK Biometrics and Ethics Group have ruled that genetic genealogy should not be used in these cases for ethical reasons. You also know that I strongly disapprove of surreptitious DNA testing. I don’t think it matters whether SNP or STR testing was done. If people are going to be treated as suspects they have a right to legal representation.
Prosecution repeatedly refuses to disclose any part of anything to do with DNA..claims it isn’t relevant to Defendant, claims no records were kept and that FBI actually performed the testing. Speedy Trial was waived and no court in October and still Prosecution will not disclose this.
Drama TV being less available and attractive to me at present, I watch a lot of crime shows. Yes there are a lot of bizarre deviations from reality – the 2 second DNA analysis just being one of them. But they do keep hammering the importance of samples being properly collected, a chain of evidence that is unbroken from the crime scene/collection point, and the adequacy of testing, methodology and staff. And the legality of steps along the way and the “poison fruit” doctrine.
I would have thought that any half-decent modern defense counsel would have some idea of possible holes and would probe for them.
OK, I am a chemist and a historian, so I don’t understand the finer points of law.
But I bet that if someone prominent enough were charged, these holes would be pointed out by a top advocate and that might serve as precedent for others.
Oh, and by the way.
There HAVE been cases where the collection of samples has been important because there has been possible or actual planting of samples at the crime scene.
Yes they are very rare. Again, if the defendant has plenty to defend and deep pockets to do it with…
I found the genealogist’s testimony in the Idaho case was probably irrelevant. I’m not a lawyer and I’ve probably watched too many crime shows, but if I’m following the case correctly, law enforcement suspected Bryan Kohberger based on the fact they had him stopped on his way from Idaho back to Pennsylvania.
Law enforcement watched the house in order to obtain a DNA sample and compare it to the DNA sample from the crime scene. The two samples suggested a familial relationship. At this point, I would assume law enforcement arrested Bryan Kohberger on probable cause and got a warrant based on this evidence, and obtained a DNA sample from Kohberger. There was no need to consult a genealogy DNA database.
Other high-profile cases did consult genealogy databases and the DNA was connected to family members. Again, the chain of custody of the family member’s DNA isn’t what results in the conviction, it just leads law enforcement to an individual and probable cause for a warrant. The question should not be about the validity of the genealogy DNA, but if it should be used for a warrant. Could the DNA in the database be subject to a subpoena/warrant or would it be considered a fishing expedition?
The affidavit may be irrelevant to the ultimate issue of guilt or innocence; it is not irrelevant to the specific issue for which it was submitted — a request by the defense for information on how the DNA aspects of the investigation were conducted. That sort of discovery request in a case where scientific evidence may be presented is the norm.
I wrote about the importance of transparency of IGG for the justice system.
https://cynar.medium.com/against-black-box-forensics-9d0c6f38b196
“A major battle in the justice system right now centers on forensic, or investigative, genetic genealogy. Law enforcement wants to use it (and is using it far more often than guidelines allow) and they want to not have to reveal to the defense during discovery that it was used. Courts are agreeing, and in large cases and small the prosecution is successfully setting precedent, building a firewall between the defense and the evidence.
This is a violation of the Sixth Amendment. And it’s incredibly dangerous, even though the argument for protecting the IGG process seems plausible and rooted in privacy ethics.
This invisibility is destructive to consensus reality. We need to understand the world as it is in order to make decisions, craft legislation, in order to navigate the unstoppable wave of intrusive, powerful, ubiquitous tracking and identifying technology. Trials cannot become de facto lies of omission in which the methods of generating evidence are obfuscated to protect those methods and the rights of the accused be damned.”