NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4965
SPONSOR: Rosenthal L TITLE OF BILL:
An act to amend the executive law, in relation to prohibiting the use of
DNA phenotyping in criminal prosecutions and proceedings
PURPOSE:
This bill prohibits contracting for and use of DNA phenotyping products
by law enforcement.
SUMMARY OF PROVISIONS:
Section one amends the executive law by adding section 838-c by first
establishing definitions of the terms "DNA phenotyping" and "physical
biometric information." This section also prohibits law enforcement
agencies and members from contracting for DNA phenotyping services and
does not allow product or evidence resulting from DNA phenotyping as
reasonable cause for arrests, for use in an investigation, and for
admitting to the record in court. This section then provides an avenue
for relief for those who have been convicted as a result of DNA pheno-
typing.
Section two sets the effective date, and orders law enforcement and
peace officers to destroy any physical biometric information they
possess as a result of DNA phenotyping.
JUSTIFICATION:
DNA phenotyping is the process by which someone's DNA is analyzed to
predict their physical characteristics, including, their eye color, hair
color, skin color, freckling, face shape, and ancestry. Recently,
police agencies across the country have contracted with laboratories
which conduct DNA phenotyping to develop "virtual mugshots" based on DNA
obtained by law enforcement to search for potential criminal suspects.
The use of this technology is problematic for many reasons. First,
phenotyping cannot accurately predict physical appearance. Aside from
scientific uncertainty, the technology is unable to take into account
environmental factors that determine how someone looks; for example,
disease, physical activity, injury, sun exposure, body modification, and
other factors can alter someone's appearance in ways that cannot be
predicted from a person's genetic code. Because of this, virtual
mugshots risk being used to establish probable cause to arrest a person
for a crime they did not commit.
Additionally, mistaken identifications tend to disproportionately impact
BIPOC and marginalized communities due to the effect of social preju-
dices in the identification process. Throughout scholarship on cross-
race racial identifications, it is well known that cross-race identifi-
cations are notoriously inaccurate and have led to numerous wrongful
convictions. Ultithately, this technology undermines fairness and
public confidence in our criminal justice system.
Detractors may argue that although the full picture produced with pheno-
typing technology may not be wholly accurate, certain highly heritable
traits, like eye color, can serve as a reliable basis to construct a
mugshot. However, this is misleading because witness identification
scholarship suggests that people process faces holistically as opposed
to on a trait by trait basis. However, even in the context of a full
facial image, the risk for misidentification is still very high. Accord-
ing to the Innocence Project, "
mistaken eyewitness identifications
contributed to approximately 69% of the more than 375 wrongful
convictions in the United States overturned by post-conviction DNA
evidence." Overall, DNA phenotyping is part of a broader movement to
harness technology to curtail our civil liberties in the name of public
safety and security. New Yorkers deserve a criminal justice system that
respects civil liberties in the pursuit of public safety and security.
LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS:
None to the state.
EFFECTIVE DATE:
This act shall take effect on the thirtieth day after it shall have
become a law and any physical biometric information obtained as a result
of DNA phenotyping already in possession of law enforcement and peace
officers shall be immediately destroyed.
STATE OF NEW YORK
________________________________________________________________________
4965
2023-2024 Regular Sessions
IN ASSEMBLY
February 27, 2023
___________
Introduced by M. of A. L. ROSENTHAL -- read once and referred to the
Committee on Governmental Operations
AN ACT to amend the executive law, in relation to prohibiting the use of
DNA phenotyping in criminal prosecutions and proceedings
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The executive law is amended by adding a new section 838-c
2 to read as follows:
3 § 838-c. DNA phenotyping. 1. As used in this section, the following
4 terms shall have the following meanings:
5 (a) "DNA phenotyping" shall mean the process of predicting a person's
6 physical biometric information and other observable physical or biochem-
7 ical characteristics, ancestry or familial connections based on an anal-
8 ysis of such person's DNA; and
9 (b) "physical biometric information" shall mean an individual's phys-
10 ical characteristics, including, but not limited to, eye color, hair
11 color, skin color, freckling and face shape.
12 2. No law enforcement agency or member of law enforcement shall
13 contract for DNA phenotyping services with any public or private entity.
14 3. No product or evidence that results or flows from the use of DNA
15 phenotyping may be used as part of reasonable cause for arrest, and any
16 product or evidence that results or flows from the use of DNA phenotyp-
17 ing is prohibited from use in an investigation. For criminal prose-
18 cutions and proceedings, any evidence or product that results or flows
19 from the use of DNA phenotyping is inadmissible.
20 4. Any conviction obtained, either directly or indirectly, through the
21 use of DNA phenotyping, shall be eligible for relief in accordance with
22 section 440.10 of the criminal procedure law.
23 5. In any action brought by any person to enforce this section, the
24 court may issue an injunction to restrain, prevent, or enforce any
25 violation of this section, including but not limited to, the destruction
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01859-01-3
A. 4965 2
1 of any product of DNA phenotyping. The court may mandate changes in the
2 policies and procedures of police department rules and guidelines when
3 such measures are required to remedy a violation under this section.
4 § 2. This act shall take effect on the thirtieth day after it shall
5 have become a law and any physical biometric information obtained as a
6 result of DNA phenotyping already in possession of law enforcement and
7 peace officers shall be immediately destroyed.
