Case Three: Collection of Evidence in a Murder Investigation

Extract

A woman is murdered in a small town. At autopsy, the pathologist notes the woman had engaged in sexual relations shortly before her murder. The police department determines the male partner should be considered a person of interest in their investigation. They begin a canvas of the town, asking every male to voluntarily consent to a DNA test. Men refusing to provide the specimen will be publicly listed as potential suspects and perhaps arrested. All 1500 men in the town provide a specimen and none is identified as the sex partner. The DNA results are entered into the FBI's database and made available to every law enforcement agency in the country.

The case against this investigation rests on the failure to obtain informed consent. Informed implies the subject is provided with information and achieves understanding. Consent must be voluntary because one cannot be said to consent to something if it is against his will.¹

A significant challenge to the acquisition of valid informed consent is evaluating to what extent the subject understands the information he has been given. In the case of research subjects, while they may be provided with sufficient information to competently agree to participate, their consent is unlawful if they do not understand.² The requirement for informed consent has traditionally placed the burden on the party seeking consent; this party is obligated to find a way to adequately explain the information and its implications.

Consent is invalid when information is withheld. In obtaining consent, an agent may…