However, there is a simple legal problem involved in using DNA samples from genealogy companies: how do they know you are the one supplying the sample? In order for physical evidence, such as a DNA sample to be used in a criminal prosecution, it must be proved to have an uninterrupted chain of custody. Here is an explanation of the chain of custody from the Office for Victims of Crime of the Office of Justice Programs, U.S. Department of Justice.
To maintain chain of custody, you must preserve evidence from the time it is collected to the time it is presented in court. To prove the chain of custody, and ultimately show that the evidence has remained intact, prosecutors generally need service providers who can testify—As the article further shows,
- That the evidence offered in court is the same evidence they collected or received.
- To the time and date the evidence was received or transferred to another provider.
- That there was no tampering with the item while it was in custody.
A challenge in proving chain of custody can arise when service providers fail to properly initial and date the evidence or fail to place a case number with it.Since a DNA sample submitted for genealogical purposes is "collected" by the person submitting the sample, there is no real way to "prove" that the sample actually came from the person listed as submitting the sample to the company. The only way to prove that the sample is from a specific individual would be to retest the individual suspect. But let's suppose that in the course of a criminal investigation, the investigative agency (police is a rather non-specific term) decides to send the results of a DNA sample to one or more of the online DNA companies for a match. Could the investigative agency do this? Obviously yes. Especially if the agency obtained s search warrant from an applicable court. Could the company, Ancestry.com or whatever, be compelled to disclose whether or not someone in their database matched the agency's sample? Hmm. That is a little bit more problematical. Given the current status of the law, my opinion would be yes, but the agency might be required to pay for matching the test results.
But then, the more important question is whether or not the agency could use the DNA test in a criminal case presented to the court? Now, we get to the issue of chain of custody. Who handled the DNA sample after it was submitted the DNA sample to the company? I can guess that the company has records after they received the sample, but there are no records about the time before the sample was sent. End of story.
The news story is nothing but a really poorly sensationalized scare tactic to sell news.