What's Next in Polygamy Custody Case?

The state begins taking DNA samples from parents and children this week.

April 21, 2008— -- Today and tomorrow, Texas officials will be gathering DNA samples to identify the parents of children taken from a polygamist compound in El Dorado. Here's what to expect:

How will the process work?

Officials will take a buccal (based on Latin for "cheek") swab, swiping the inside of the cheek with a cotton swab to gather cells for testing. It takes about a week to 10 days to turn around a DNA test on a sample.

What if the parents or children don't cooperate?

The children are already in state custody, so they'll be swabbed one way or another.

If the parents named in the court order refuse, they could be held in contempt of court. Of course, ignoring the order would also be counterproductive for parents: It would mean that they couldn't prove a child was theirs, and the child would probably remain with the state.

Can the DNA gathered this week be used in a later criminal prosecution of, say, an adult accused of raping an underage girl?

Probably so. The issue would be whether DNA obtained in the child-protection process (a civil proceeding) could be used in a criminal proceeding, which implicates the constitutional protections against self-incrimination and an illegal search and seizure.

Giving DNA is not like giving testimony, so there is probably no issue of self-incrimination. Gathering DNA is like conducting a search, but it's being done under a court order issued after a hearing, so any argument that the search lacked probable cause and was illegal would be weak.

Can the order to gather DNA be appealed?

The order could be challenged through "mandamus," essentially a request that an appeals court overturn the order because the judge ignored the law and improperly exercised her discretion. Highly unlikely to happen.

Reynolds Holding is a lawyer as well as a journalist