DNA and the Fifth Amendment
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Description
Bill Stuntz caused me trouble for as long as I can remember. He first caused me trouble as a young lawyer, because as a public defender I had grown pleasantly accustomed to throwing constitutional rights at all the perceived ills of the criminal justice system. You know that old saw, “when all you have is a hammer, everything looks like a nail”? Well, to a public defender, every problem looks like a potential motion. To thus be told that in fact it was my motion that was the problem—well, that was disconcerting. Reading Bill Stuntz’s work may have convinced me to put down my hammer, but it left me wanting to reach for a match. Fortunately, I managed to overcome such destructive impulses and joined academia in order to think constructively about the criminal justice system. Unfortunately, that just brought me to my second problem with Stuntz, which is the one that I encountered as a young scholar and continue to encounter even today. That problem is this: Every time I think I have some new idea or path-breaking original thought, I do a little research only to find that Bill Stuntz already had the same realization years earlier and, worse yet, published something about it. In fact, he usually wrote better, more clearly, and with more nuance and careful understanding than I ever could. But it was always hard to become too upset, since if I had to get scooped, I cannot think of a nicer or smarter person to claim as having preempted me. In all fairness, though, I must also admit that, in true Stuntzian fashion, the trouble that he caused me as a public defender and as an academic also served to lift me up in both professions. As a young practicing lawyer interested in pursuing an academic career, reading his work helped to affirm for me that my two paths were not incompatible—that it was possible and even desirable to be a scholar deeply invested in questions related to how criminal justice actually works in the real world. And as an academic, I have countless times relied on his insight to guide me in the exploration and development of my own thoughts about the criminal justice system. It is these two lessons—now legacies—of Bill Stuntz’s that I keep in mind as I turn to an emerging issue particular to my own research: namely, the problem of genetic evidence in the criminal justice system, with specific emphasis on its relationship to the Fifth Amendment. This chapter begins with an overview of the relationship between DNA and Fifth Amendment doctrine today, which could really be summed up quite briefly in three words: There is none. But I will proceed by urging one way in which a link might be forged, which is through an analogy to the compelled documents cases. The chapter concludes by acknowledging that, yet again, Bill Stuntz is causing me trouble, because the two major arguments against such an approach—both of which I find entirely persuasive—come directly from him.
Source Publication
The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz
Source Editors/Authors
Michael Klarman, David Skeel, Carol Steiker
Publication Date
2012
Recommended Citation
Murphy, Erin E., "DNA and the Fifth Amendment" (2012). Faculty Chapters. 1989.
https://gretchen.law.nyu.edu/fac-chapt/1989
