Massachusetts Supreme Judicial Court Says Criminal Defendant’s Twin Brother Cannot be Compelled to Provide DNA Sample

The Massachusetts Supreme Judicial Court today ruled that the twin brother of a murder defendant cannot be forced to provide the government with a sample of his DNA.  The name of the case is Commonwealth v. Kostka. 

In April of 2012, a woman was found in her bedroom bleeding heavily from multiple stab wounds.  She was rushed to the hospital where she died from her injuries.  Crime scene investigators were able to retrieve biological material from underneath the victim’s fingernails, which was tested and found to contain the DNA of at least two people (including the victim).  Police zeroed in on the defendant after three of his bloody fingerprints were found in the victim’s apartment and a person resembling the defendant was seen on surveillance video from a nearby store around the time of the murder.  When the defendant was taken into custody, he had injuries on his body that were consistent with having been scratched.

Police investigators believe that the defendant and his brother are fraternal, as opposed to identical, twins.  This is important because identical twins share the same DNA but fraternal twins do not.  The Commonwealth sought a judicial order for the defendant’s brother to provide a DNA sample by way of a buccal swab (a procedure whereby a swab is rubbed on the inside of the subject’s cheek to obtain cells that can be tested for DNA).  A superior court judge ordered the defendant’s brother to provide a DNA sample and he refused, resulting in him being found in contempt.  The Appeals Court affirmed the superior court judge’s order and the defendant’s brother appealed to the Supreme Judicial Court, which reversed.

The Court reaffirmed that the Commonwealth is entitled to obtain a buccal swab from a third party who is not a suspect, but only in very limited situations.  The Commonwealth must prove that there is probable cause to believe a crime has been committed and that the DNA evidence would probably be relevant to the question of whether or not the defendant is guilty.  However, judges are required to consider additional factors, such as the seriousness of the crime, the importance of the evidence, and whether there is a less intrusive manner by which the evidence could be obtained.

In this case, the SJC ruled that the Commonwealth had failed to establish that the brother’s DNA would be relevant to the issues involving the defendant’s guilt.  The Court pointed out that there was insufficient evidence to even establish that the defendant’s DNA was actually found under the victim’s fingernails.  In cases in which the Court has allowed for the collection of DNA from third parties, such evidence would have clearly established the defendant’s guilt.  The Court pointed out that here, even without the DNA evidence, the Commonwealth will still be able to present a case against the defendant given the discovery of his bloody fingerprints at the murder scene.

This is a good decision.  When the government seeks to obtain DNA from a non-suspect, it is an extreme intrusion into that person’s right to privacy.  This case did not present the compelling facts that would be necessary to justify such extraordinary government action.