Newborn screening program used to aid criminal investigation, public defender says

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Blood taken as part of a mandatory newborn screening program in New Jersey could end up in the hands of law enforcement as evidence.

The state’s Office of the Public Defender alleges that New Jersey law enforcement obtained blood collected through the program and used it to frame the child’s father with a crime, an allegation which has prompted cries of alarm from civil liberties advocates.

“This program was developed for health purposes and to protect health, and there is no consent process for the state to take this information from newborns,” said Jeanne LoCicero, legal director of the American Civil Liberties Union of New Jersey, to the New Jersey Monitor. “Parents, when this happens, trust the state to protect this sensitive information and not make it readily available to law enforcement or other agencies.”

The controversy in New Jersey comes as police in other jurisdictions have scrutinized the methods they use to obtain DNA samples. Recently ousted San Francisco district attorney Chesa Boudin alleged police used DNA taken from rape victims to link them to the crimes. In New York, cops are accused of giving cigarettes or sodas to suspects during interrogations so officers could secretly collect DNA from objects.

Under New Jersey law, every child born here must be tested for 60 disorders within 48 hours of birth. The decades-old program aims to identify rare and potentially serious conditions in newborns.

A small amount of dried blood remains after testing is complete, and these records may be kept for up to 23 years before being destroyed, depending on state records retention schedules.

In at least one case, law enforcement used those records to aid in the criminal investigation of a 1996 sexual assault, the New Jersey Office of the Public Defender alleged in a new trial targeting the state Department of Health and other entities (the New Jersey Monitor is a co-applicant).

Instead of seeking a warrant for which officers did not have probable cause, New Jersey State Police subpoenaed the testing program to obtain the blood sample from a child, now aged nine. , whose father was suspected of carrying out the assault, the New Jersey Office of Public Defender Claims.

The DNA analysis conducted by the state police was later used as probable cause for a warrant to obtain the DNA of the father, who was later charged in the assault case.

LoCicero warned that the police actions, alleged by the public defender’s office, should be of concern to everyone.

“Because DNA contains intimate and private information not only about the newborn but also about their family, we need to ensure that this private information is protected from government intrusion, whether in this context or in a wide range of others,” LoCicero said.

A New Jersey State Police spokesperson did not return a request for comment.

LoCicero said blood screening records should only be released with parental consent — or child consent if an adult — or under a judge-approved warrant.

It’s unclear how often or how many law enforcement agencies have used the testing program’s records to aid in criminal investigations.

Open Public Records Act requests filed by the Office of the Public Defender and the New Jersey Monitor requesting a list of subpoenas from the state-run lab that performs the screenings were denied by the state, which cited court confidentiality rules regarding grand jury records.

The state refused to release redacted subpoenas and did not provide an index that would clearly show the number of subpoenas against the Newborn Screening Lab.

The New Jersey Monitor and the Office of the Public Defender filed a lawsuit Monday seeking to compel those disclosures.

“The Office of the Public Defender is very concerned about the unprecedented request for DNA from infants in connection with a criminal investigation,” said Jennifer Selliti, spokesperson for the Public Defender. “We believe information about the extent of this practice should be fully disclosed to the public.”

In response to Boudin’s claims about how police use rape victims’ DNA, California lawmakers are proposing a bill that would prevent authorities from storing rape victims’ DNA in a database for any reason. other than identifying their attackers.

Meanwhile, the New York Police Department is facing a class action lawsuit over its practice of collecting DNA from suspects who leave cigarette butts, bottles and cans in interrogation rooms. Such seizures are permitted in New York under a 1988 U.S. Supreme Court decision that found that Fourth Amendment protections against unlawful search and seizure do not apply to garbage, but they are. prohibited by New Jersey case law.

Last month, the New Jersey Supreme Court limited when authorities can use DNA evidence, saying they cannot cite lab testing delays or other administrative issues to circumvent the statute of limitations. five years to prosecute most crimes.

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