Maryland officials have set the stage for an appeal to the Supreme Court to revive their legal right to collect DNA samples from individuals who have been arrested, but not yet convicted of a crime if the stateshighest court cannot be persuaded to reconsider its partial ban on that procedure. The issue has divided lower federal and state courts, and the case of King v. Maryland would appear to pose the issue in a simple and direct way a rape conviction would fall, and getting a guilty verdictat a new trial could be in considerable doubt.

The ruling last month by the Maryland Court of Appeals, the states supreme court, is here. The state attorney generals motion to reconsider, indicating plans to go on to the Supreme Court if necessary, can be read here. State Attorney General Douglas F. Gansler asked the state court at least to put its ruling on hold until after it could be tested in the Supreme Court.

Marylands DNA sampling law was originally passed in 1994, but was extended in 2008 to require sampling of those arrested and not yet convicted. The federal government and 25 of the 50 states have similar laws, and disputes over their constitutionality have arisen across the country. The Supreme Court on March 19 refused to hear a case involving a challenge to a DNA sample taken from a Pennsylvania man (Mitchell v. United States, docket 11-7603), but the sample was not used in that case to identify the individual as the perpetrator of a different crime.

Among the constitutional issues that have arisen over such DNA sampling laws, these are some of the most significant:

** What level of privacy do arrested individuals have, compared to those actually found guilty of crimes?

** How intrusive is a DNA sample, both in terms of the physical procedure of swabbing inside the mouth, and in terms of the amount of private information gathered by such a swab?

** Do constitutional limits on it apply both to the original swabbing, and also to the later interpretation of the personal markers found?

** For constitutional purposes, is using the DNA result to tie an individual to other crimes simply another form of identification, or is it a form of investigation of another crime? (In other words, cansuch a sample be used constitutionallyonly if it helps identify that arrested individualas the person the police want for that particular crime, or can it also be used validly to link that individual to other crimes, such as unsolved offenses (cold cases)?

** Is the constitutional equation different if a sampling law puts strict limits on what information from a sample may be used by prosecutors? (In other words, is there no constitutional problem if the sample reveals only what are called junk factors that really do not tell much about an individuals biological profile?)

** And, if such a sampling procedure is invalid in some particular factual situations, may it remain on the books for other situations? (In other words, shouldsuch a law be struck down as written that is, facially or only as applied to specific scenarios?)

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DNA sampling case develops