§ 17-102. FGGS investigations
West's Annotated Code of MarylandCriminal ProcedureEffective: April 11, 2023
Effective: April 11, 2023
MD Code, Criminal Procedure, § 17-102
§ 17-102. FGGS investigations
(a)(1) FGGS may not be initiated without judicial authorization and without certifying before the court that the forensic sample and the criminal case satisfy the criteria set forth in this section.
(b) A sworn affidavit shall be submitted by a law enforcement agent with approval of a prosecutor from the relevant jurisdiction asserting that:
(c) Biological samples subjected to FGG DNA analysis, whether the forensic sample or third party reference samples, may not be used to determine the sample donor's genetic predisposition for disease or any other medical condition or psychological trait.
(d) FGGS may only be conducted using a direct-to-consumer or publicly available open-data personal genomics database that:
(e) The laboratory conducting SNP or other sequencing-based testing and the genetic genealogist participating in FGGS shall be licensed by the Office of Health Care Quality in accordance with § 17-104 of this title.
(f)(1)(i) Subject to subparagraph (ii) of this paragraph, informed consent in writing shall be obtained from any third party whose DNA sample is sought for the purpose of assisting an FGGS and all statements made in obtaining the informed consent shall be documented from beginning to end by video or audio recording.
(ii) If the use of informed consent will compromise the investigation as demonstrated under subsection (g)(1)(ii) of this section and the third party has not already refused to consent, investigators may seek authorization to covertly collect a DNA sample in accordance with subsection (g) of this section.
(2) The person obtaining the informed consent shall have training from a genetic counselor approved by the Office of Health Care Quality under § 17-104 of this title within 1 year after the Office of Health Care Quality has identified and approved a genetic counselor or within 1 year after the person joins the investigative unit conducting the investigation, whichever is later.
(g)(1) If investigators determine that one or more persons are putative perpetrators of the crime under investigation and it is necessary to collect a covert DNA sample from the putative perpetrator or a third party:
(ii) subject to paragraph (2) of this subsection, for a covert collection of a DNA sample of a third party, investigative authorities shall provide an affidavit to the court demonstrating that seeking informed consent from a third party creates substantial risk that a putative perpetrator will flee, that essential evidence will be destroyed, or that other imminent or irreversible harm to the investigation will occur;
(v) any covertly collected DNA sample, including SNPs and other genetic profiles or related information, that does not match the STR DNA profile obtained from a forensic sample shall be destroyed and may not be uploaded to any DNA database, including local, state, or federal DNA databases within CODIS, or any DNA database not authorized by local, state, or federal statute; and
(h)(1)(i) Except as provided in subparagraph (ii) of this paragraph, on completion of an FGGS investigation that does not result in a prosecution or results in an acquittal, or on completion of a sentence and postconviction litigation associated with a conviction obtained through the use of FGGS, or on completion of any criminal prosecution that may arise from the FGGS, the authorizing court, or any court that ultimately has jurisdiction over any criminal case that arose from the FGGS, shall issue orders to all persons in possession of DNA samples gathered in the FGGS and all genetic genealogy information derived from the FGG analysis of those samples to destroy the samples and information.
(ii) 1. On the completion of an FGGS investigation, the genetic genealogist participating in the FGGS shall turn over to the investigator all records and materials collected in the course of the FGGS, including material sourced from public records, family trees constructed, and any other genetic or nongenetic data collected in the FGGS.
(i)(1) A person may not disclose genetic genealogy data, FGG profiles, or DNA samples not authorized by a court order in the course of an FGGS, or in the course of any criminal proceeding that arises from an FGGS.
(j)(1) A person may not willfully fail to destroy genetic genealogy information, FGG profiles, or DNA samples that are required to be destroyed in accordance with subsection (h) of this section.
Private right of action when information or samples are wrongfully disclosed, collected, or maintained
(k) A person whose genetic genealogy information, FGG profile, or DNA sample is wrongfully disclosed, collected, or maintained in violation of this title has a private right of action under relevant State law guiding tort claims, and is entitled to minimum liquidated damages of $5,000 for a violation.
(l) A prosecutor in a criminal case that involves an FGGS investigation may file with the Court of Special Appeals an appeal from an interlocutory order by a court that excludes or suppresses evidence in the form of an STR DNA profile obtained from the FGGS.
Added by Acts 2021, c. 681, § 1, eff. Oct. 1, 2021; Acts 2021, c. 682, § 1, eff. Oct. 1, 2021. Amended by Acts 2022, c. 135, § 1, eff. April 12, 2022; Acts 2022, c. 501, § 1, eff. Oct. 1, 2022; Acts 2023, c. 49, § 2, eff. April 11, 2023.
MD Code, Criminal Procedure, § 17-102, MD CRIM PROC § 17-102
Current with all legislation from the 2023 Regular Session of the General Assembly. Some statute sections may be more current, see credits for details.
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