DNA Testing in Criminal Justice:
Background,
Current Law, Grants, and Issuesand Grants
Nathan James
Analyst in Crime Policy
January 9, 2014February 2, 2015
Congressional Research Service
7-5700
www.crs.gov
R41800
DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issuesand Grants
Summary
Deoxyribonucleic acid, or DNA, is the fundamental building block for an individual’s entire
genetic makeup. DNA is a powerful tool for law enforcement investigations because each
person’s DNA is different from that of every other individual (except for identical twins). DNA
can be extracted from a number of sources, such as hair, bone, teeth, saliva, and blood. As early
as the 1980s, states began enacting laws that required collecting DNA samples from offenders
convicted of certain sexual and other violent crimes. The samples were then analyzed and their
profiles entered into state databases. Meanwhile, the Federal Bureau of Investigation (FBI)
Laboratory convened a working group of federal, state, and local forensic scientists to establish
guidelines for the use of forensic DNA analysis in laboratories. The group proposed guidelines
that are the basis of current national quality assurance standards, and it urged the creation of a
national DNA database. The criminal justice community began to utilize DNA analyses more
often in criminal investigations and trials, and in 1994 Congress enacted legislation to authorize
the creation of a national DNA database.
Federal law (42 U.S.C §14132(a)) authorizes the FBI to operate and maintain a national DNA
database where DNA profiles generated from samples collected from people under applicable
legal authority and samples collected at crime scenes can be compared to generate leads in
criminal investigations. Statutory provisions also authorize the collection of DNA samples from
federal offenders and arrestees, District of Columbia offenders, and military offenders. State laws
dictate which convicted offenders, and sometimes people arrested for crimes, will have profiles
entered into state DNA databases, while federal law dictates the scope of the national database.
Increasing awareness of the power of DNA to solve crimes has resulted in increased demand for
DNA analysis, which has resulted in a backlog of casework. Some jurisdictions have started to
use their DNA databases for familial searching, which involves using offender profiles to identify
relatives who might be perpetrators of crimes. In addition to solving crimes, DNA analysis can
help exonerate people incarcerated for crimes they did not commit.
Congress has authorized several grant programs to provide assistance to state and local
governments for forensic sciences. Many of the programs focus on providing state and local
governments with funding to reduce the backlog of forensic and convicted offender DNA samples
waiting to be processed and entered into the national database. However, other grant programs
provide funding for related purposes, such as offsetting the cost of providing post-conviction
DNA testing.
In the 1990s and the early part of the last decade, most of the debate in Congress focused on the
scope of DNA databases, reducing the backlog of DNA casework, and providing access to postconviction DNA testing. Most of the debate about the scope of DNA databases faded away with
the enactment of the Violence Against Women and Department of Justice Reauthorization Act of
2005 (P.L. 109-162), which expanded federal collection statutes to include anyone arrested or
detained under the authority of the United States. The act also expanded the scope of the national
database to include DNA profiles of individuals arrested for state crimes. However, concerns
about the backlog of DNA casework have persisted. In addition, new issues related to the use of
DNA in criminal justice have emerged, including whether (1) DNA databases should be used to
conduct familial searches, (2) sexual assault evidence collection kits (i.e., “rape kits”) should be
standardized, and (3) there should be national accreditation standards for forensic laboratories.
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DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issues
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DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issues
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DNA Testing in Criminal Justice: Background, Current Law, and Grants
Contents
Introduction...................................................................................................................................... 1
Background ...................................................................................................................................... 21
The National DNA Index System (NDIS) and the Combined DNA Index System
(CODIS) ................................................................................................................................. 2
DNA Profiles ............................................................................................................................. 3
DNA Backlog ............................................................................................................................ 76
Forensic Casework .............................................................................................................. 7
Convicted Offender and Arrestee Samples.......................................................................... 97
Evidence in the Possession of Law Enforcement .............................................................. 10
Processing Time for DNA Analyses .................................................................................. 11.. 8
Sexual Assault Evidence Collection Kits ............................................................................ 8 11
Investigation of Leads Generated from Database Hits ............................................................ 1310
Partial Match Searching .......................................................................................................... 1410
Federal Law ................................................................................................................................... 1512
Quality Assurance and Proficiency Testing Standards ............................................................ 1612
Index to Facilitate Law Enforcement Exchange of DNA Identification Information ............. 1613
Collection of DNA Samples from Certain Federal, District of Columbia, and Military
Offenders .............................................................................................................................. 1814
Post-conviction DNA Testing .................................................................................................. 1916
Preservation of Biological Evidence ....................................................................................... 2218
Grants for DNA-Related Programs................................................................................................ 2219
Debbie Smith DNA Backlog Grant Program .......................................................................... 2219
Kirk Bloodsworth Post-Conviction DNA Testing Grant Program .......................................... 2421
Sexual Assault Forensic Exam Program Grants ...................................................................... 2421
DNA Research and Development Grants ................................................................................ 2521
DNA Training and Education for Law Enforcement, Correctional Personnel, and
Court Officers ....................................................................................................................... 25
Appropriations for DNA-Related Grant Programs .................................................................. 25
Selected Issues for Congress.......................................................................................................... 26
The NDIS and Familial Searching........................................................................................... 27
Reducing the Backlog.............................................................................................................. 30
Enhancing the Capacity of State and Local Laboratories ................................................. 30
Facilitating Partnerships Between Public and Private Laboratories.................................. 33
Annual Backlog Data .............................................................................................................. 35
Standardization of Sexual Assault Evidence Collection Kits .................................................. 36
Federal Accreditation Standards .............................................................................................. 37
Figures
Figure 1. DNA Forensic Casework: Supply, Demands, Backlogs ................................................... 9
Figure 2. Convicted Offender and Arrestee Backlog Trends, 2007-2009 ...................................... 10
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DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issues
Tables
Table 1. Number of Profiles in the NDIS, Investigations Aided, and Hits Generated by
Searches of NDIS ......................................................................................................................... 6
Table 222
Appropriations for DNA-Related Grant Programs .................................................................. 22
Tables
Table 1. Appropriations for Forensic Science Grant Programs ..................................................... 2623
Contacts
Author Contact Information........................................................................................................... 3823
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DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issuesand Grants
Introduction
Deoxyribonucleic acid, or DNA, is the fundamental building block for an individual’s entire
genetic makeup. DNA is a powerful tool for law enforcement investigations because each
person’s DNA is different from that of every other individual (except for identical twins). By
analyzing selected DNA sequences (called loci), a crime laboratory can develop a profile to be
used in identifying a suspect.1
DNA can be extracted from a number of sources, such as hair, bone, teeth, saliva, and blood.
Because the human body contains so many copies of DNA, even a minuscule amount of bodily
fluid or tissue can yield useful information. Obtaining a DNA sample is not necessarily invasive;
it can be as simple as a swab of the inside of the mouth to obtain saliva.
State and federal DNA databases have proved instrumental in solving crimes, reducing the risk of
convicting the wrong person, and establishing the innocence of those wrongly convicted. DNA
evidence is used to solve crimes in two ways:
•
In cases where a suspect is known, a sample of that person’s DNA can be
compared to biological evidence found at a crime scene. The results of this
comparison may then help establish whether the suspect was at the crime scene
or whether he/she committed the crime.
•
In cases where a suspect is not known, biological evidence from the crime scene
can be analyzed and compared to offender profiles contained in existing DNA
databases to assist in identifying the perpetrator. Through the use of DNA
databases, biological evidence found at one crime scene can also be connected to
other crime scenes, linking them to the same perpetrator or perpetrators.
Early congressional debate on DNA testing centered on whose profiles should be included in
DNA databases. In recent years, concerns have been raised about the backlog of DNA casework
and access to post-conviction testing. In the future, policy makers may also focus their attention
on other issues related to the use of DNA in criminal justice, including whether (1) DNA
databases should be used to conduct familial searches, (2) sexual assault evidence collection kits
(i.e., “rape kits”) should be standardized, and (3) there should be national accreditation standards
for forensic laboratories.
This report provides an overview of how DNA is used to investigate crimes and help protect the
innocent.21 It also reviews current statutory law on collecting DNA samples, sharing DNA profiles
generated from those samples, and providing access to post-conviction DNA testing. The report
also includes a summary of grant programs authorized by Congress to assist state and local
governments with reducing DNA backlogs, provide post-conviction DNA testing, and promote
1
See CRS Report RL30717, DNA Identification: Applications and Issues, by Eric A. Fischer.
new technology in the field.
Background
Federal law authorizes the Federal Bureau of Investigation (FBI) to operate and maintain a
national DNA database where DNA profiles generated from samples collected from people under
applicable legal authority and samples collected at crime scenes can be compared to generate
leads in criminal investigations. Statutory provisions also authorize the collection of DNA
samples from federal offenders and arrestees, District of Columbia offenders, and military
1
This report does not include a discussion of the use of DNA to identify missing persons and unidentified human
remains, nor does it include an overview of grant programs to state and local governments for developing DNA profiles
from samples from missing persons, close relatives of missing persons, or unidentified human remains. For more on
this issue, see CRS Report RL34616, Missing Adults: Background, Federal Programs, and Issues for Congress, by
Adrienne L. Fernandes-Alcantara.
2
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new technology in the field. It also reviews select issues Congress might consider should it
legislate or conduct oversight in this area.
Background
Federal law authorizes the Federal Bureau of Investigation (FBI) to operate and maintain a
national DNA database where DNA profiles generated from samples collected from people under
applicable legal authority and samples collected at crime scenes can be compared to generate
leads in criminal investigations. Statutory provisions also authorize the collection of DNA
samples from federal offenders and arrestees, District of Columbia offenders, and military
and Grants
offenders. State law dictates which convicted offenders and persons arrested for crimes will have
profiles entered into state DNA databases, but federal law dictates which profiles entered into
state databases can be uploaded into the national DNA database.
Increasing awareness of the power of DNA testing to solve crimes has increased demand for
DNA analysis, which has resulted in a backlog of casework. The demonstrated ability of DNA
testing to generate leads in criminal investigations has led some jurisdictions to use their DNA
databases for familial searching, which involves using offender profiles to identify relatives who
might be perpetrators of crimes. In addition to solving crimes, DNA analysis can also help
exonerate people incarcerated for crimes they did not commit.
The National DNA Index System (NDIS) and the Combined DNA
Index System (CODIS)
As early as the 1980s, states began enacting laws that required DNA samples from those
offenders convicted of certain sexual offenses and other violent crimes. The samples were then
analyzed and their profiles entered into state databases. Meanwhile, the FBI Laboratory convened
a working group of federal, state, and local forensic scientists to establish guidelines for the use of
forensic DNA analysis in laboratories. The group proposed guidelines that are the basis of current
national quality assurance standards, and it urged the creation of a national DNA database.32 In
1994, Congress authorized the FBI to establish and oversee the National DNA Index System
(NDIS). When the NDIS launched in 1998, only nine states participated.43 Currently, laboratories
in all 50 states, the District of Columbia, the federal government, Puerto Rico, and the U.S. Army
Criminal Investigation Laboratory participate in the NDIS.54 The NDIS contains the DNA profiles
provided by federal, state, and participating local crime laboratories.6 As of November 2013,
there are 1925 As of December 2014, there
are 194 laboratories in the United States participating in the NDIS.7
36
DNA profiles generated by laboratories operated by local law enforcement agencies are stored in
Local DNA Index Systems (LDIS). DNA profiles generated by state laboratories, along with
authorized profiles stored in participating LDIS, are uploaded into State DNA Index Systems
(SDIS). Each state has its own laws specifying which profiles can be included in the SDIS.7 DNA
profiles generated by federal laboratories, along with authorized DNA profiles in participating
2
Statement of Dwight E. Adams, Deputy Assistant Director, Laboratory Division, Federal Bureau of Investigation, in
U.S. Congress, House of Representatives, Government Reform Committee, Subcommittee on Government Efficiency,
Financial Management and Intergovernmental Relations, How Effective are State and Federal Agencies Working
Together to Implement the Use of New DNA Technologies?, hearing, 107th Cong., 1st sess., March 29, 2004, pp. 53-54,
at http://www.fbi.gov/congress/congress01/dwight061201.htm.
4.
3
John M. Butler, Fundamentals of Forensic DNA Typing (Burlington, MA: Academic Press, 2010), p. 265 (hereinafter,
Fundamentals of Forensic DNA Typing).
54
Ibid.
65
U.S. Department of Justice, Federal Bureau of Investigation, Frequently Asked Questions (FAQs) on the CODIS
Program and the National DNA Index System, http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and(continued...)
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DNA profiles generated by laboratories operated by local law enforcement agencies are stored in
Local DNA Index Systems (LDIS). DNA profiles generated by state laboratories, along with
authorized profiles stored in participating LDIS, are uploaded into State DNA Index Systems
(SDIS). Each state has its own laws specifying which profiles can be included in the SDIS.8 DNA
profiles generated by federal laboratories, along with authorized DNA profiles in participating
SDIS, are uploaded into the NDIS.9andndis-fact-sheet, hereinafter “CODIS FAQs.”
6
U.S. Department of Justice, Federal Bureau of Investigation, CODIS—NDIS Statistics, http://www.fbi.gov/about-us/
lab/codis/ndis-statistics.
7
The National Conference of State Legislatures (NCSL) maintains a searchable database of state DNA laws, including
laws related to which convicted offenders are required to submit a sample for inclusion in the state’s DNA database and
whether, and if so, from whom, collects DNA samples from individuals arrested for certain crimes. The NCSL’s
database is available online at http://www.ncsl.org/research/civil-and-criminal-justice/dna-laws-database.aspx.
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SDIS, are uploaded into the NDIS.8 Federal law dictates which DNA profiles can be stored in the
NDIS (see below). The NDIS allows participating laboratories to compare DNA on the national
level while the SDIS allows each state to compare DNA profiles stored at the state level. Federal,
state, and local laboratories upload and compare DNA profiles using the Combined DNA Index
System (CODIS) software produced and distributed by the FBI.109
CODIS searches three indexes (convicted offenders, arrestee, and forensic) to generate
investigative leads. The convicted offender index contains DNA profiles developed from samples
collected from convicted offenders; the arrestee index contains DNA profiles developed from
samples collected from arrested but not yet convicted individuals; and the forensic index contains
DNA profiles developed from samples collected at crime scenes. CODIS searches across these
indexes to look for potential matches (also referred to as “hits”).1110 Matches can occur between
either the convicted offender or arrestee indexes and the forensic index, thereby providing law
enforcement with the identity of one or more suspects.1211 Also, matches can occur between DNA
profiles in the forensic index, thereby linking crime scenes to each other and identifying serial
offenders.1312 Matches between multiple samples in the forensic index can allow law enforcement
agencies in different jurisdictions to coordinate their efforts and share leads. No names or other
personal identifiers for offender and arrestee DNA profiles are stored in the NDIS, so when a
match is made in CODIS, the laboratories that submitted the DNA profiles to the NDIS are
notified of the match and they contact each other to verify the match and coordinate their
efforts.1413
DNA Profiles
DNA profiles entered into CODIS are based on 13 core short tandem repeat (STR) loci selected
by the FBI.1514 Currently, the 13 STR loci used by the FBI are non-coding, meaning that they have
(...continued)
ndis-fact-sheet, hereinafter “CODIS FAQs.”
7
U.S. Department of Justice, Federal Bureau of Investigation, CODIS—NDIS Statistics, http://www.fbi.gov/about-us/
lab/codis/ndis-statistics.
8
The National Conference of State Legislatures (NCSL) maintains a searchable database of state DNA laws, including
laws related to which convicted offenders are required to submit a sample for inclusion in the state’s DNA database and
whether, and if so, from whom, collects DNA samples from individuals arrested for certain crimes. The NCSL’s
database is available online at http://www.ncsl.org/research/civil-and-criminal-justice/dna-laws-database.aspx.
9not been shown to be associated with human attributes such as height, eye or skin color, or
susceptibility to a particular disease.15 Each locus has two alleles, and it is these 13 pairs of alleles
that are compared to match samples in the forensic index with profiles in either the offender or
arrestee indexes. The 13 core loci chosen by the FBI provide a high level of discriminatory
power. The probability that two unrelated individuals would share all 13 pairs of alleles is
8
U.S. Department of Justice, Federal Bureau of Investigation, CODIS—NDIS Statistics, http://www.fbi.gov/about-us/
lab/codis/ndis-statistics.
109
CODIS FAQs.
1110
Ibid.
1211
Ibid. If an “offender hit” is obtained, that information typically is used as probable cause to obtain a new DNA
sample from that suspect so the match can be confirmed by the crime laboratory before an arrest is made.
1312
Ibid.
1413
CODIS FAQs.
15
Ibid.
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not been shown to be associated with human attributes such as height, eye or skin color, or
susceptibility to a particular disease.16 Each locus has two alleles, and it is these 13 pairs of alleles
that are compared to match samples in the forensic index with profiles in either the offender or
arrestee indexes. The 13 core loci chosen by the FBI provide a high level of discriminatory
power. The probability that two unrelated individuals would share all 13 pairs of alleles is
14
Ibid.
15
Jules Epstein, “Genetic Surveillance—The Bogeyman Response to Familial DNA Investigations,” University of
Illinois Journal of Law, Technology and Policy, vol. 2009, no. 1, (2009), p. 143.
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estimated to be one in several hundred billion.1716 Two random Americans will, on average, share
two or three alleles.1817
It is important to ensure the quality of the DNA profiles entered into the NDIS. If the profiles are
not accurate, they are of little use for making matches between forensic and offender or arrestee
profiles. The FBI helps ensure the quality of DNA profiles included in the NDIS by signing
memorandums of understanding with state laboratories whereby the laboratory agrees to adhere
to the FBI’s Quality Assurance Standards (QAS, see below).1918 Laboratories submitting DNA
profiles to the NDIS must be accredited and audited annually.2019 Annual audits can be conducted
by either an internal or external auditor, but laboratories must be audited by an external agency at
least once every two years.2120 Laboratories that do not pass the annual audit can be prevented from
entering DNA profiles in CODIS.2221 Currently, most labs in the United States are audited by the
American Society of Crime Laboratory Directors and its Laboratory Accreditation Board
(ASCLD/LAB) and Forensic Quality Services (FQS). In addition, DNA analysts must undergo
semiannual proficiency testing.2322 DNA analysts who do not pass their semiannual proficiency
tests are not allowed to enter profiles into CODIS.2423 Laboratories are also required to conduct two
reviews of all DNA profiles before they are entered into CODIS.2524
Currently, as prescribed by federal law (see below), only public laboratories that comply with the
QAS can submit DNA profiles to the NDIS. However, public laboratories are allowed to
outsource casework to private laboratories. All private laboratories that conduct DNA testing for
public laboratories must be accredited, be audited annually, and adhere to the requirements of the
QAS.2625 Public laboratories are required to conduct an initial site visit to each private laboratory it
16
Jules Epstein, “Genetic Surveillance—The Bogeyman Response to Familial DNA Investigations,” University of
Illinois Journal of Law, Technology and Policy, vol. 2009, no. 1, (2009), p. 143 (hereinafter, “Epstein, ‘Genetic
Surveillance’”).
17contracts with to conduct DNA analyses.26 If the public laboratory signs a contract with a private
laboratory that is longer than one year, the public laboratory must conduct an annual site visit.27
Public laboratories are also required to review all outsourced DNA profiles generated by private
laboratories.28 The review by the public laboratory is in addition to the two reviews private
laboratories are required to conduct per the QAS.
16
Henry T. Greely, Daniel P. Riordan, and Nanibaa’ A. Garrison, et al., “Family Ties: The Use of DNA Offender
Databases to Catch Offenders’ Kin,” Journal of Law, Medicine and Ethics, vol. 34, no. 2 (Summer 2006), p. 250
(hereinafter, “Greely, Riordan, Garrison, et al., ‘Family Ties’”).
1817
Ibid.
1918
Fundamentals of Forensic DNA Typing, p. 270.
2019
Ibid., p. 271.
2120
U.S. Department of Justice, Federal Bureau of Investigation, Quality Assurance Standards for DNA Databasing
Laboratories, Standard 15, http://www.fbi.gov/about-us/lab/biometric-analysis/codis/qas_databaselabs. U.S.
Department of Justice, Federal Bureau of Investigation, Quality Assurance Standards for Forensic DNA Testing
Laboratories, Standard 15, http://www.fbi.gov/about-us/lab/biometric-analysis/codis/qas_testlabs (hereinafter “QAS”).
2221
Fundamentals of Forensic DNA Typing, p. 271.
2322
Ibid.
2423
Ibid.
2524
U.S. Congress, House Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security,
Testimony of Jeffery S. Boschwitz, Ph.D., Hearing on “Rape Kit Backlogs: Failing the Test of Providing Justice to
Sexual Assault Survivors”, 111th Cong., 2nd sess., May 20, 2010, H.Hrg 111-115 (Washington: GPO, 2010), p. 81
(hereinafter, “Testimony of Dr. Boschwitz”)
26.
25
QAS, Standard 17.
26
CODIS FAQs.
27
QAS, Standard 17.
28
Ibid.
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contracts with to conduct DNA analyses.27 If the public laboratory signs a contract with a private
laboratory that is longer than one year, the public laboratory must conduct an annual site visit.28
Public laboratories are also required to review all outsourced DNA profiles generated by private
laboratories.29 The review by the public laboratory is in addition to the two reviews private
laboratories are required to conduct per the QAS.
and Grants
An offender or arrestee profile in a DNA database consists of 26 numbers representing each of the
two alleles for the 13 STR loci, an agency identification number, a sample identification number,
and an identifier for the analyst that entered the information.3029 However, most jurisdictions retain
the DNA sample used to generate the profile placed in CODIS.3130 DNA samples are usually
retained for quality assurance purposes, such as confirming a hit made using the NDIS, and it
allows jurisdictions to retest the sample if new technology is developed in the future.3231 Privacy
advocates are concerned that stored DNA samples include a wealth of genetic information that
could be misused.3332 States and the federal government have sought to prevent the unauthorized
use of DNA samples. Some states have criminal penalties in place for individuals who misuse
DNA samples collected for law enforcement purposes.3433 Under current law, anyone who misuses
a DNA sample collected under federal authority is subject to a fine of up to $250,000, or
imprisonment for up to one year.3534
The number of offender profiles included in the NDIS has increased as Congress has allowed
states to include DNA profiles from a broader range of convicted offenders and persons arrested
for certain crimes to be included in the database. States have also amended their DNA collection
laws to reflect this expanded authority. As shown in Table 1, nearly 11Nearly 12.4 million new convicted
offender and arrestee
profiles have been added to NDIS over the past decade. This is in part
since 2000.35 In addition, over 580,000 new forensic profiles
have been included in the NDIS since 2000. This is in part because more forensic profiles have
been added to the NDIS as state and local governments have
started to work their way through backlogs of forensic casework. As also shown, over 400,000
new forensic profiles have been included in the NDIS since 2000. Data presented show that the
expansion of the NDIS has mostly been driven by laboratories processing and entering offender
profiles.
backlogs of forensic casework. The additional offender and forensic profiles have increased the
number of investigate
leads generated by DNA databases. Since 2000, the NDIS has aided in the
investigation of nearly
175,000 crimes. Data in Table 1 indicate that most matches occur between forensic and offender
profiles stored in SDIS rather than the NDIS.
27
CODIS FAQs.
QAS, Standard 17.
29
Ibid.
30
Fundamentals of Forensic DNA Typing, p. 270.
31
Ibid., p. 262.
32
Ibid.
33
Tania Simoncelli, “Dangerous Excursions: The Case Against Expanding Forensic DNA Databases to Innocent
Persons,” Journal of Law, Medicine, and Ethics, vol. 34, no. 2 (Summer 2006), p. 392 (hereinafter “Simoncelli,
‘Dangerous Excursions’”).
34
Simoncelli, “Dangerous Excursions,” p. 392.
35
42 U.S.C. §14135e(c).
28
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Table 1. Number of Profiles in the NDIS, Investigations Aided, and
Hits Generated by Searches of NDIS
Forensic
Hits
National
Offender
Hits
(NDIS)
State
Offender
Hits
(SDIS)
Total
Offender
Hits
1,573
507
26
705
731
46,177
6,670
1,832
638
4,394
5,032
—
93,956
21,266
5,056
1,834
12,482
14,316
3,977,435
54,313
160,582
45,364
9,493
4,397
30,138
34,535
2008
6,399,200
140,719
248,943
81,955
14,364
8,561
59,184
67,745
2010
8,564,705
668,849
351,951
130,317
21,983
15,724
97,772
113,496
2012a
9,761,083
1,139,065
436,937
174,680
28,993
20,698
132,517
153,215
Year
Convicted
Offender
Profiles
Arrestee
Profiles
Forensic
Profiles
Investigations
Aided
2000
441,181
—
21,625
2002
1,247,163
—
2004
2,038,514
2006
Source: U.S. Department of Justice, Federal Bureau of Investigation, CODIS Brochure.
Notes: Amounts shown are cumulative starting with 2000. In the most recent CODIS Brochure the FBI published
data on profiles in the NDIS for every other year starting with 2000. “Forensic hit” refers to cases where a
match is made between two or more forensic profiles in the database. “Offender hit” refers to cases where an
offender profile is matched to one or more forensic profile in the database.
a.
Through June 2012.
258,000 crimes.36
One limitation of the data in Table 1 these data is that they do not describe how the investigations were
aided, the
outcomes of the investigations, or whether any of the hits solved the alleged crimes.36
Database 37 Database
hits do not always generate a new investigative lead; investigators, if they have already
identified identified
a suspect and they know that the suspect’s profile is already in the database, may enter
a forensic
profile into the database and wait for a hit to be returned before investigating further. In
addition,
not all hits generated by the DNA databases are probative; just because someone’s DNA
is found
at a crime scene does not always mean that the person who left the DNA is the
perpetrator. Also,
it is possible that one forensic or offender hit might lead to several arrests or aid
in multiple
investigations. The data published by the FBI provide a measure of the output
generated by the
NDIS, but the “hits” and “investigations aided” metrics are poor indicators of
whether DNA databases aided in resolving criminal investigations.37 For example, the data
provide no indication of whether the hits generated by the NDIS resulted in a conviction or how
many investigations resulted in an arrest.
A study of database hits in San Francisco suggests that there is a need for more expansive data
collection in order to properly to evaluate the effectiveness of DNA databases.38 The study
measured the outcomes of 198 DNA database hits in cold cases39 generated by the San Francisco
36
Frederick R. Bieber, “Turning Base Hits into Earned Runs: Improving the Effectiveness of Forensic DNA Data Bank
Programs,” Journal of Law, Medicine and Ethics, vol. 34, no. 2 (Summer 2006), p. 227.
37
Ibid.
38
Matthew Gabriel, Cherisse Boland, and Cydne Holt, “Beyond the Cold Hit: Measuring the Impact of the National
DNA Data Bank on Public Safety at the City and County Level,” Journal of Law, Medicine and Ethics, vol. 38, no. 2
(Summer 2010), pp. 396-411.
39
Ibid., p. 397. “Cold cases” were defined as crimes where the investigation has not generated a named suspect(s)
through traditional methods of police investigation (e.g., interviewing witnesses, identification through non-DNA
physical evidence left at the crime scene, or tips from confidential informants).
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whether DNA
29
Fundamentals of Forensic DNA Typing, p. 270.
Ibid., p. 262.
31
Ibid.
32
Tania Simoncelli, “Dangerous Excursions: The Case Against Expanding Forensic DNA Databases to Innocent
Persons,” Journal of Law, Medicine, and Ethics, vol. 34, no. 2 (Summer 2006), p. 392.
33
Ibid., p. 392.
34
42 U.S.C. §14135e(c).
35
The FBI reports data on the number of offender, arrestee, and forensic profiles in the NDIS in 2000 at
http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis_brochure. Data on the number of offender, arrestee,
and forensics profiles as of December 2014 can be found at http://www.fbi.gov/about-us/lab/biometric-analysis/codis/
ndis-statistics.
36
U.S. Department of Justice, Federal Bureau of Investigation, CODIS—NDIS Statistics, http://www.fbi.gov/about-us/
lab/codis/ndis-statistics.
37
Frederick R. Bieber, “Turning Base Hits into Earned Runs: Improving the Effectiveness of Forensic DNA Data Bank
Programs,” Journal of Law, Medicine and Ethics, vol. 34, no. 2 (Summer 2006), p. 227.
30
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databases aided in resolving criminal investigations.38 For example, the data provide no indication
of whether the hits generated by the NDIS resulted in a conviction or how many investigations
resulted in an arrest.
A study of database hits in San Francisco suggests that there is a need for more expansive data
collection in order to properly to evaluate the effectiveness of DNA databases.39 The study
measured the outcomes of 198 DNA database hits in cold cases40 generated by the San Francisco
Police Department Forensic Biology Unit between 2001 and 2006. The researchers report that
90% of the cold hits were probative and provided investigators with substantive leads.4041 Probative
hits led to judicial resolution (i.e., conviction, guilty plea, or parole revocation) 40% of the time.4142
Another 28% of the cases involving probative hits were either awaiting jury trial or the
investigation was ongoing at the time the article was written. The researchers note that they found
that nearly 70% of the probative hits could result in some form of judicial resolution. There were
varying rates of success for database hits for different types of offenses. Nearly 9 in 10 probative
hits in homicide and burglary cases either reached judicial resolution or could be resolved.
However, judicial resolution or potential resolution was lower for sex offenses (approximately 1
in 2). In nearly half of the cases where a probative hit was made for a sex offense, either the
prosecutor (17%) or the victim (31%) declined to move the case forward.4243
DNA Backlog
Delays in processing DNA evidence can result in delays in apprehending or prosecuting violent or
serial offenders or it can result in wrongfully convicted individuals serving time in prison for
crimes they did not commit. In addition, persistent backlogs can result in crime laboratories
prioritizing DNA analysis for violent offenses, such as homicide or sexual assault, over other
offenses, such as property crimes, or it can result in law enforcement agencies establishing
policies stating that biological evidence is not to be collected for minor offenses.4344 Not analyzing
or collecting DNA samples for minor offenses could prevent law enforcement from apprehending
offenders before they commit more serious crimes. Data indicate that many violent offenders start
off with committing property crimes.44
Forensic Casework
In a February 2011 report, the National Institute of Justice (NIJ) published estimates of the
forensic casework backlogs in state and local laboratories in 2005, 2007, 2008, and 2009
(presented in Figure 1).45 Different methodologies used to collect the data and survey response
rates differed slightly, but the data show a pattern: the backlog of forensic casework continues to
increase as the demand for forensic DNA casework continues to outpace the crime laboratory
capacity to conduct such analyses.46 It is important to remember that data presented in Figure 1
40
Ibid., p. 398.
Ibid., p. 400.
42
Ibid.
43
Context is important when evaluating data on DNA backlogs.45 Backlogs must be considered in
the context of each crime laboratory’s capacity, size, and workload. For example, if there are two
laboratories and the first laboratory has a backlog of casework that is three times the size of the
38
Ibid.
Matthew Gabriel, Cherisse Boland, and Cydne Holt, “Beyond the Cold Hit: Measuring the Impact of the National
DNA Data Bank on Public Safety at the City and County Level,” Journal of Law, Medicine and Ethics, vol. 38, no. 2
(Summer 2010), pp. 396-411.
40
Ibid., p. 397. “Cold cases” were defined as crimes where the investigation has not generated a named suspect(s)
through traditional methods of police investigation (e.g., interviewing witnesses, identification through non-DNA
physical evidence left at the crime scene, or tips from confidential informants).
41
Ibid., p. 398.
42
Ibid., p. 400.
43
Ibid.
44
Edwin Zedlewski and Mary B. Murphy, “DNA Analysis for ‘Minor’ Crimes: A Major Benefit for Law
Enforcement,” NIJ Journal, vol. 253 (January 2006) (hereinafter, “DNA Analysis for ‘Minor’ Crimes”).
44
Data from BJS show that approximately 1 in 5 property offenders released from prison in 1994 were rearrested for a
violent crime with three years. Patrick A. Langan and David J. Levin, Recidivism of Prisoners Released in 1994, U.S.
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, NCJ 193427, Washington, DC, June
2002, p. 9, http://bjs.ojp.usdoj.gov/content/pub/pdf/rpr94.pdf. In addition, a study of DNA databases hits in Florida
show that 52% of hits for homicide and sexual assault cases matched offenders who had prior convictions for burglary.
DNA Analysis for “Minor” Crimes.
45
NIJ defines a backlogged case as a case that has not been analyzed within 30 days of being submitted to the
laboratory. Mark Nelson45
Mark Nelson, Ruby Chase, and Lindsay DePalma, Making Sense of DNA BacklogsBacklog, 2012s—Myths vs. Reality, U.S.
Department of Justice, Office of
Justice Programs, National Institute of Justice, NCJ 323197, Washington, DC, February 2011, p. 3,
http://www.ncjrs.gov/pdffiles1/nij/232197.pdf (hereinafter, Making Sense of DNA Backlogs—Myths vs. Reality).
46
Backlog data for 2005 were collected as a part of the Bureau of Justice Statistic’s Census of Publicly Funded
(continued...)
41243347, Washington, DC,
December 2013, p. 6.
39
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present a national picture of the forensic DNA backlog; it is likely that some crime laboratories
have little or no backlog, while other laboratories have significant backlogs.47 Data also show that
the backlog of forensic casework is not the result of a glut of old samples awaiting analysis;
rather, the forensic casework backlog is mostly driven by increasing demand for DNA analysis in
new cases. NIJ reports that the growing demand for DNA analysis is increasing for many reasons,
including
•
a growing awareness of the potential of DNA evidence to solve cases;
•
more DNA samples are being collected from property crimes;
•
advances in DNA technology allow tests to be conducted on smaller samples of
DNA;
•
more DNA testing in old, unsolved cases where the evidence was collected
before DNA testing became widespread; and
•
post-conviction DNA testing.48
Another contributing factor to the forensic casework backlog is the labor-intensive nature of
processing forensic casework. NIJ reports that processing forensic evidence is time-consuming
because the evidence must be screened to determine if, and what kind of, biological materials are
present before DNA testing can begin.49
(...continued)
Forensic Crime Laboratories (see Matthew R. Durose, Census of Publicly Funded Forensic Crime Laboratories, 2005,
NCJ 222181, July 2008, http://bjs.ojp.usdoj.gov/content/pub/pdf/cpffcl05.pdf). Data for 2007 were collected as a part
of a NIJ funded study of DNA backlogs (see Lisa Hurst and Kevin Lothridge, “2007 DNA Evidence and Offender
Measurement Analysis: DNA Backlogs, Capacity and Funding,” NCJ 230328, January 2010, http://www.ncjrs.gov/
pdffiles1/nij/grants/230328.pdf). Data for 2008 were reported by applicants for NIJ’s FY2009 DNA Backlog Reduction
Program grant solicitation. Data for 2009 were reported by applicants for NIJ’s FY2010 DNA Backlog Reduction
Program. Ibid., p. 3.
47
Ibid., p. 4.
48
Ibid.
49
Ibid., p. 1.
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Figure 1. DNA Forensic Casework: Supply, Demands, Backlogs
Source: CRS reproduction of a figure from the U.S. Department of Justice, Office of Justice Programs, National
Institute of Justice, “Making Sense of DNA Backlogs—Myths vs. Reality,” p. 3.
Notes: Backlog data for 2005 were collected as a part of the Bureau of Justice Statistic’s 2005 Census of Publicly
Funded Forensic Crime Laboratories. Data for 2007 were collected as a part of a NIJ-funded study of DNA
backlogs. Data for 2008 and 2009 were reported by applicants for NIJ’s FY2009 and FY2010 DNA Backlog
Reduction Program grant solicitations. Data are not available for 2006. Data for 2009 is the most recent
available.
Convicted Offender and Arrestee Samples
In addition to the backlog of forensic casework, there is a backlog in the processing of samples
collected from convicted offenders and arrestees. Backlogs of convicted offender and arrestee
samples means that there are fewer DNA profiles in CODIS to match forensic profiles to, and this
could result in a delay in identifying suspects in cases where DNA evidence was collected. Data
collected by NIJ show that submission of new DNA samples from convicted offenders and
arrestees increased between 2007 and 2009 (see Figure 2).50 At the same time, the total number
of convicted offender and arrestee samples analyzed decreased between 2007 and 2008, but the
number of samples analyzed remained at approximately 1 million in both 2008 and 2009.51
Therefore, the increased backlog of convicted offender and arrestee samples between 2008 and
2009 was the result of states collecting more offender samples, especially from arrestees, while
the ability to analyze those samples remained flat.
Data indicate that there are more convicted offender and arrestee DNA samples for laboratories to
process compared to forensic samples; NIJ notes, however, that offender and arrestee samples are
easier and faster to analyze because they are collected on a standard, consistent medium.52 The
50
Ibid., p. 7.
Ibid., p. 8.
52
Ibid., p. 2.
51
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standardized collection method makes it possible to use automated analysis on robotic platforms
that can process approximately 96 samples and controls simultaneously.53 This suggests that
laboratories might be better able to process the backlog of convicted offender and arrestee
samples if they increase their technological capacity.
Figure 2. Convicted Offender and Arrestee Backlog Trends, 2007-2009
Source: U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, “Making Sense of
DNA Backlogs—Myths vs. Reality,” p. 7.
Notes: Data for 2007 were collected as a part of a NIJ-funded study of DNA backlogs. Data for 2008 and 2009
were reported by applicants for NIJ’s FY2009 and FY2010 DNA Backlog Reduction Program grant solicitations.
Data for 2009 is the most recent available.and Grants
casework backlog in the second laboratory, the backlog for the first laboratory might not be as
daunting if the first laboratory’s turnaround time is twice as fast as the second laboratory and the
analysts in the first laboratory are more productive (i.e., each analyst analyzes more cases per
month).
Forensic Casework
In a December 2013 report, the National Institute of Justice (NIJ) published estimates of the
forensic casework backlogs in state and local laboratories in 2011.46 The NIJ reported that the
backlog of forensic cases increased from approximately 83,600 cases at the beginning of 2011 to
approximately 91,300 cases at the end of 2011. The backlog of forensic cases at the beginning
and end of 2011 was smaller than the reported backlogs at the beginning and end of 2009, but the
trend could be the result of a lack of a uniform definition of what constituted a “backlogged
case.”47
Demand for analysis of forensic casework increased between 2009 and 2011. The NIJ reported
that crime laboratories received nearly 241,600 cases for processing in 2011, a 16.4% increase
compared to 2009.48 However, crime laboratories increased their capacity to process forensic
casework. Crime laboratories closed approximately 248,100 cases in 2011, a nearly 10% increase
over 2009 (excluding cases closed through administrative means).49 The NIJ concludes that
backlogs of forensic samples continue to exist because requests for analysis continue to outpace
increased capacity.50
Requests for DNA analysis in property crime cases is contributing to the backlog of forensic
casework. The NIJ reported that 38% of requests for forensic DNA analysis in 2011 were from
property crimes.51 However, crime laboratories continue to make analysis of DNA evidence in
violent crimes a priority. The average turnaround time for DNA evidence in violent crimes was
106 days, while the average turnaround time in property crimes was 154 days.52
Convicted Offender and Arrestee Samples
Data from the NIJ show that crime laboratories had a smaller backlog of convicted offender and
arrestee DNA samples (the NIJ refers to these as “database samples”) at the end of 2011. On
46
NIJ defines a “backlogged case” as a case that has not been closed by a final report within 30 days of receipt by the
laboratory. Ibid., p. iii. Backlog data was collected from the more than 120 public laboratories that receive NIJ grants.
Ibid., p. 1.
47
In 2011, the NIJ standardized the definition of “backlogged case” (a case that has not been closed by a final report
within 30 days of receipt by the laboratory) so that all laboratories reported uniform data to the NIJ. Prior to that, many
laboratories used their own definitions. In some instances, any unanalyzed case in a laboratory’s possession was
considered backlogged. Ibid., p. 2.
48
Ibid.
49
Requests for DNA analysis of a submitted sample can be closed either by completing the requested analysis or
through administrative means. Forensic cases can be closed administratively, for example, when a suspect pleads guilty
before the evidence is analyzed or when a victim declines to press charges. In prior years, the NIJ only collected data
on closures that resulted from analysis. Ibid.
50
Ibid., p. 3.
51
Ibid.
52
Ibid.
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January 1, 2011, crime laboratories reported having approximately 187,000 backlogged database
samples. On December 31, 2011, the backlog of database samples was down to approximately
113,500.53 The NIJ attributes the reduction of the backlog of database samples to two factors: a
decrease in the demand for testing of database samples and a significant percentage of samples
that were closed administratively.54 The backlog of database samples decreased even though
crime laboratories completed 52% fewer samples in 2011 compared to 2009.55
Evidence in the Possession of Law Enforcement
One limitation to the backlog data discussed above is that they only include samples in the
possession of crime laboratories. Samples from evidence still in the possession of law
enforcement agencies and not yet transferred to laboratories are not counted as a part of the
backlog. While there is no current count of the total amount of unanalyzed evidence in the
possession of law enforcement agencies, one group of researchers that surveyed over 2,000 law
enforcement agencies in 2007 found that law enforcement agencies had forensic evidence that
had not been submitted to a crime laboratory for analysis in 14% of all unsolved homicide cases
and 18% of unsolved rape cases.5456 The researchers estimated that nearly 40% of unanalyzed
murder and rape cases contained DNA evidence.55 The results of the survey indicate that there are
53
Ibid.
Kevin J. Strom, Jeri Ropero-Miller, and Shelton Jones, et al., The 2007 Survey of Law Enforcement Forensic
Evidence Processing, U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, Washington,
DC, October 2009, pp. 3-2, http://www.ncjrs.gov/pdffiles1/nij/grants/228415.pdf.
55
Ibid.
54
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57 The results of the survey indicate that there are
many reasons why law enforcement agencies chose not to submit evidence for analysis, including
that subsequent investigation may have shown that the evidence would not be probative; charges
against an alleged perpetrator may have been dropped; or the suspect may have pled guilty.5658
However, data collected by the researchers also suggest that law enforcement agencies may not
fully understand the potential value forensic evidence can have in generating leads in cases where
they have not identified a suspect. Nearly half of the responding law enforcement agencies
reported that they did not submit evidence for analysis because a suspect had not been identified.
Also, nearly one in five agencies reported that they did not submit evidence because they felt it
would not be useful to the case.5759 However, the survey does not reveal how many open cases with
unanalyzed evidence would be solved or yield investigative leads if evidence were to be sent to
the laboratory.
Processing Time for DNA Analyses
While many policy makers are interested in the size of the backlog of forensic casework and
offender and arrestee samples, another important consideration is the time it takes for laboratories
to complete new requests for DNA analysis (i.e., turnaround time). Researchers studying the size
of the forensic casework backlog in 2007 in publicly funded, accredited DNA laboratories found
that 14 of the 145 laboratories (9.7%) responding to their survey reported that they did not have a
backlog, meaning that they were able to process all requests for DNA analysis within 30 days of
receipt.58 However, nearly three-quarters (111) of responding laboratories reported completing
DNA analysis requests within 119 days (four months) or less. Of the remaining laboratories, 24
(16.6%) reported that turnaround time was more than 180 days (six months) and another 20
(13.8%) laboratories reported turnaround times of 270 days (nine months) or more. The
researchers found that the turnaround time for cases of violent crimes was, in general, shorter
than the turnaround time for cases of non-violent crimes.59 The researchers also found that the
turnaround time for analysis of offender and arrestee samples tended to be shorter than the
turnaround time for forensic casework. Approximately 30% of responding laboratories reported
having turnaround times of 30 days or less for offender and arrestee samples.60 Approximately
half of all responding laboratories reported processing offender and arrestee samples within 90
days of receipt. However, one-quarter of laboratories reported turnaround times of more than 270
days (nine months) for these samples.61
Sexual Assault Evidence Collection Kits
There continues to be concern about the backlog of sexual assault evidence collections kits—also
referred to as “rape kits.” While there have been several estimates of the backlog in some cities,62
56
Ibid., p. 3-7.
Ibid., p. 3-6.
58
Lisa Hurst and Kevin Lothridge, 2007 DNA Evidence and Offender Analysis Measurement: DNA Backlogs, Capacity
and Funding, Final Report to National Institute of Justice Grant 2006-MU-BX-K002, Washington, DC, January 2010,
p. 8, http://www.ncjrs.gov/pdffiles1/nij/grants/230328.pdf (hereinafter, 2007 DNA Evidence and Offender Analysis
Measurement).
59
Ibid.
60
Ibid., p. 12.
61
Ibid.
62
CBS News conducted a five month investigation into the backlog of sexual assault evidence collection kits. The
investigation collected data on the number of backlogged kits in 24 cities and states. CBS News reports that there are
(continued...)
57
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NIJ reports that currently there is no comprehensive data on the number of unanalyzed sexual
assault evidence kits in the United States.63 NIJ reports that it is currently funding research to
better understand why some sexual assault evidence collection kits are not submitted to a crime
laboratory for analysis.64 The backlog of sexual assault evidence collection kits has raised
concerns that additional victimizations could have been prevented had the evidence from any
given kit been tested and the perpetrator apprehended in a timely manner.65Sexual Assault Evidence Collection Kits
There continues to be concern about the backlog of sexual assault evidence collections kits—also
referred to as “rape kits.” While there have been several estimates of the backlog in some cities,60
there is currently no comprehensive count of the number of untested rape kits in law
53
Ibid., p. 4.
Database samples can be closed administratively, for example, when there are duplicate submissions (i.e., the
offender’s DNA profile is already in the database) or the sample was collected from someone whose offense does not
qualify them to have his or her sample entered into the database. Ibid.
55
Ibid., p. 5.
56
Kevin J. Strom, Jeri Ropero-Miller, and Shelton Jones et al., The 2007 Survey of Law Enforcement Forensic
Evidence Processing, U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, Washington,
DC, October 2009, pp. 3-2.
57
Ibid.
58
Ibid., p. 3-7.
59
Ibid., p. 3-6.
60
The Joyful Heart Foundation, through its Accountability Project, reports a backlog of nearly 50,000 untested rape
kits in 16 cities. See http://www.endthebacklog.org/backlog/where-backlog-exists.
54
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enforcement’s custody.61 NIJ reports that it is currently funding research to better understand why
some sexual assault evidence collection kits are not submitted to a crime laboratory for analysis.62
The backlog of sexual assault evidence collection kits has raised concerns that additional
victimizations could have been prevented had the evidence from any given kit been tested and the
perpetrator apprehended in a timely manner.63
Sexual assault evidence collection kits are collections of tools used by a nurse examiner or
another trained professional to collect evidence during a forensic medical exam conducted after
someone has reported a sexual assault and consents to the exam.6664 Many jurisdictions have
developed their own sexual assault evidence collection kits, or they purchase them from a
commercial vendor. As such, the content of a kit can vary from jurisdiction to jurisdiction.6765 In
general, sexual assault evidence collection kits include (1) instructions; (2) bags, sheets, and
envelopes for evidence collection; (3) swabs for collecting fluids or secretions that could contain
the perpetrator’s DNA; (4) a comb for collecting hair samples; (5) blood collection devices; and
(6) documentation forms.6866 An exam involves collecting a complete medical history from the
victim and completing a full-body physical examination.6967 This may include
•
collecting blood, urine, hair, and other body secretion samples;
•
photo documentation of any injuries sustained during the assault;
•
collecting the victim’s clothing, especially undergarments; and
•
collecting any possible physical evidence that may have transferred onto the
victim from the crime scene.7068
In addition to jurisdictional differences in the content of sexual assault evidence collection kits,
procedures for analyzing the evidence collected using the kit can vary from jurisdiction to
jurisdiction. In some jurisdictions, all sexual assault evidence collection kits are forwarded to a
crime laboratory for analysis.7169 In other jurisdictions, it may be months or even years before the
(...continued)
more than 20,000kit is tested, if at all.70 Some law enforcement agencies might not submit sexual assault evidence collection kits that were never sent to crime laboratories and another 6,000
kits from cases that are under active investigation, but are still waiting to be tested. The results of CBS News’
investigation are available online at http://www.cbsnews.com/stories/2009/11/10/cbsnews_investigates/
main5605770.shtml?tag=contentMain;contentBody.
63
Nancy Ritter, “Solving the Problem of Untested Evidence in Sexual Assaults,” NIJ Journal, no. 267 (Winter 2010),
p. 18.
64
Ibid., p. 19.
65
collection kits to crime laboratories for various reasons: the identity of the perpetrator was not in
question from the beginning of the investigation, detectives identified the suspect through other
61
Nancy Ritter, The Road Ahead: Unanalyzed Evidence in Sexual Assault Cases, U.S. Department of Justice, Office of
Justice Programs, National Institute of Justice, NCJ 233279, May 2011, p. 1.
62
U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, Untested Evidence in Sexual
Assault Cases, http://www.nij.gov/topics/law-enforcement/investigations/sexual-assault/Pages/untested-sexualassault.aspx.
63
Armen Keteyian, “Untested Rape Kits Lead to More Crimes,” CBS News, November 10, 2009,
http://www.cbsnews.com/stories/2009/11/10/cbsnews_investigates/main5603492.shtml.
6664
Rape, Abuse and Incest National Network (RAINN), What is a Rape Kit, http://www.rainn.org/get-information/
sexual-assault-recovery/rape-kit (hereinafter, What is a Rape Kit).
6765
U.S. Department of Justice, Office on Violence Against Women, A National Protocol for Sexual Assault Medical
Forensic Examinations, NCJ 228119, April 2013, p. 7, https://www.ncjrs.gov/pdffiles1/ovw/241903.pdf (hereinafter, A
National Protocol for Sexual Assault Medical Forensic Examinations).
68.
66
What is a Rape Kit.
6967
Ibid.
7068
Ibid.
7169
Angela Wu, “Will Rape Kit Testing Laws Help Clear Cases?,” Newsweek, July 26, 2010,
http://www.newsweek.com/will-rape-kit-testing-laws-help-clear-cases-74393 (hereinafter, “Will Rape Kit Testing
(continued...).
70
Human Rights Watch, Testing Justice: The Rape Kit Backlog in Los Angeles City and County, 1-56432-461-3, New
York, NY, March 2009, p. 22.
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kit is tested, if at all.72 Some law enforcement agencies might not submit sexual assault evidence
collection kits to crime laboratories for various reasons: the identity of the perpetrator was not in
question from the beginning of the investigation, detectives identified the suspect through other
and Grants
evidence not included in the kit, or the victim chooses not to proceed with the case.7371 Also, some
law enforcement agencies might have a problem working through their backlog of old kits
because crime laboratories are operating at full capacity analyzing DNA evidence collected from
current cases.7472
Investigation of Leads Generated from Database Hits
While reducing casework backlogs can help generate new leads in cases without suspects (socalled “cold cases”), law enforcement agencies have to devote time to investigating the leads that
result from DNA database matches. Data from a 2009 survey of 235 law enforcement agencies
suggest that law enforcement agencies, particularly small agencies, might not have the resources
to fully investigate new leads. The survey found that 37% of agencies surveyed had designated
“cold case units” (i.e., groups of investigators who are responsible for leads generated from a
match between an offender and forensic profile in either the SDIS or the NDIS).7573 In addition, the
larger the agency (as measured by the number of sworn officers) the more likely they were to
have such a unit. Over two-thirds of law enforcement agencies with 1,000 or more sworn officers
reported having a cold case unit.7674 However, less than half of law enforcement agencies with 379999 sworn officers reported having this unit, and less than 20% of agencies with 378 or fewer
sworn officers reported having such a unit.7775 Even if an agency reported having a cold case unit,
the unit was typically small. Three-quarters of law enforcement agencies with cold case units
reported that three or fewer staff members were assigned to the unit.7876 Law enforcement agencies
that did not have cold case units reported that leads generated from DNA database hits were
investigated when resources were available, which usually meant that investigators were paid
overtime to follow-up on the new leads.7977 Data suggest that law enforcement agencies would
expand cold case units if they had the resources. Surveyed law enforcement agencies were asked
to identify, based on their agency’s experiences, the resources they needed for DNA-related work.
(...continued)
Laws Help Clear Cases?”).
72
Human Rights Watch, Testing Justice: The Rape Kit Backlog in Los Angeles City and County, 1-56432-461-3, New
York, NY, March 2009, p. 22, http://www.hrw.org/sites/default/files/reports/rapekit0309webwcover.pdf.
73
Two-thirds identified cold case unit staffing (both for staffing cold case units or paying overtime
if the agency did not have a cold case unit) as a need.78
Partial Match Searching
Crime laboratories can use three levels of stringency—high, moderate, and low—when using
CODIS to search for matches between an offender or arrestee and forensic profiles. Searches with
high stringency require a match between all 26 alleles,79 which, as discussed above, indicates that
71
U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, Untested Sexual Assault
Evidence in Law Enforcement Custody, http://www.nij.gov/topics/forensics/lab-operations/evidence-backlogs/lawenforcement-sexual-assault.htm.
7472
Department of Justice, Office on Violence Against Women, Eliminating the Rape Kit Backlog: A Roundtable to
Explore a Victim-centered Approach, Washington , DC, May 10, 2010, p. 15, http://www.ovw.usdoj.gov/docs/rape-kitroundtable-summary-10262010.pdf.
75.
73
Dan Cantillon, Kathy Kopiec, and Heather Clawson, Evaluation of the Impact of the Forensic Casework DNA
Backlog Reduction Program, ICF International, Fairfax, VA, February 2009, p. 10, http://www.ncjrs.gov/pdffiles1/nij/
grants/225803.pdf (hereinafter, Evaluation of the Impact of the Forensic Casework DNA Backlog Reduction
Program”).
74
Ibid., p. 11.
75
Ibid.
76
Ibid., p. 1110.
77
Ibid., p. 11.
78
Ibid., p. 1014.
79
Ibid., p. 11Fundamentals of Forensic DNA Typing, p. 275.
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Two-thirds identified cold case unit staffing (both for staffing cold case units or paying overtime
if the agency did not have a cold case unit) as a need.80
Partial Match Searching
Crime laboratories can use three levels of stringency—high, moderate, and low—when using
CODIS to search for matches between an offender or arrestee and forensic profiles. Searches with
high stringency require a match between all 26 alleles,81 which, as discussed above, indicates that
and Grants
it is highly probable that the identified offender or arrestee was the source of the forensic sample.
A moderate stringency search requires all available alleles to match, but the profiles can contain a
different number of alleles.8280 Moderate stringency searches can be used to search for matches
when the forensic profile contains a mixture of DNA from two or more sources, hence there
might be more than two alleles at some loci. Low stringency searches require one allele at each
loci to match.8381 Low stringency searches are sometimes required because a degraded sample
might not have alleles at all loci.8482
Crime laboratories can use low stringency searches to make partial matches between and offender
or arrestee and forensic profiles. Partial match searching can be used for familial searching, which
involves using DNA from known individuals in a database to identify relatives of those
individuals as potential suspects in other crimes.8583 There is some debate about whether partial
match searching is the same as familial searching. In some states, crime laboratories can release
information on partial matches that result from a regular search of the SDIS or NDIS, but they do
not consider these partial matches to be familial searches because they were not the result of a
deliberate search of the database for partial matches between an offender or arrestee and forensic
profiles.8684 Others argue that even if the partial match was not the result of a deliberate search of
the database, it is still a familial search because it could implicate the relative of someone with a
profile in the database.8785 Research indicates that there is a lack of transparency when it comes to
policies regarding partial matches. In most cases where a state reports the results of partial
matches, it is done without explicit statutory authorization, and in many instances the policy is
unwritten or it is not available to the public.8886
Familial searching is possible because of the way humans inherit genes. Close relatives—
especially parents, children, and siblings—who are genetically related are more likely to share
80
Ibid., p. 14.
Fundamentals of Forensic DNA Typing, p. 275.
82
Ibid.
83
Ibid.
84
alleles used for identification in CODIS than two people who are not closely related.87 Two
unrelated people usually only share a few CODIS alleles, but a parent and his or her child must
share no fewer than 13 alleles since children inherit half of their genes from each parent.88 Parents
and children will most likely share between 14 and 16 alleles.89 It is possible that two siblings
will share between 0 and 26 alleles, but on average they will share 16.7 alleles.90 Familial
searching can be conducted by using low stringency searching, but low stringency searches can
result in hundreds or even thousands of partial matches, none of which might actually represent a
biological relationship. The probability that two unrelated people will share more than 13 alleles
80
Ibid.
Ibid.
82
The FBI permits forensic profiles with 10 of the 13 CODIS loci to be uploaded into the NDIS for searching against
the offender and arrestee indexes. CODIS FAQs.
8583
David Lazer, Searching the Family Tree for Suspects: Ethical and Implementation Issues in the Familial Searching
of DNA Databases, A. Alfred Taubman Center for State and Local Government, Cambridge, MA, March 2008, p. 1,
http://www.hks.harvard.edu/var/ezp_site/storage/fckeditor/file/pdfs/centers-programs/centers/taubman/policybriefs/
lazer_final.pdf (hereinafter, Lazer, Searching the Family Tree for Suspects).
86.
84
Natalie Ram, DNA Confidential: State Law Enforcement Policies for Genetic Databases Lack Transparency, Science
Progress, October 2009, p. 2, http://www.scienceprogress.org/2009/11/dna-confidential/.
87.
85
Ibid., p. 1.
88
Ibid., p. 3.
81
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alleles used for identification in CODIS than two people who are not closely related.89 Two
unrelated people usually only share a few CODIS alleles, but a parent and his or her child must
share no fewer than 13 alleles since children inherit half of their genes from each parent.90 Parents
and children will most likely share between 14 and 16 alleles.91 It is possible that two siblings
will share between 0 and 26 alleles, but on average they will share 16.7 alleles.92 Familial
searching can be conducted by using low stringency searching, but low stringency searches can
result in hundreds or even thousands of partial matches, none of which might actually represent a
biological relationship. The probability that two unrelated people will share more than 13 alleles
86
Ibid., p. 3.
87
Greely, Riordan, Garrison et al., “Family Ties,” p. 251.
88
Ibid., p. 252.
89
Ibid.
90
Ibid., p. 253.
81
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with at least one match at each of the 13 loci is about 1 in 2,000.9391 While this probability is low,
there are over 8.612.4 million offender profiles in the NDIS, meaning that a low stringency search for
for a common genotype could generate thousands of partial matches.
The FBI has been reluctant to allow the NDIS to be used for familial searching without explicit
legislative approval,9492 but in July 2006 the FBI issued a policy that permits states, at their
discretion, to share identification information with other states in the event that a search of the
NDIS turns up a partial match.9593 While the FBI’s policy might seem to be at odds with the
bureau’s reluctance to allow the NDIS to be used for familial searching, a closer review of the
FBI’s definition of “familial searching” shows how the FBI could allow states to share partial
match information without contradicting its stance on familial searching. The FBI defines familial
searching “as a ‘second deliberate search … to identify close biological relatives of the
perpetrator in the known offender database,’ used only after an initial search of the database turns
up no candidate matches.”9694 The FBI’s current policy allows states to share any partial matches;
they do not have to be the result of a deliberate search for relatives of individuals with a profile in
the NDIS. The FBI’s policy means that states have the final say over whether to release
identifying information in the case of partial matches.
Federal Law
While state law dictates whose profiles will be included in each state’s DNA database, federal law
provides for the collection of DNA samples from certain federal offenders for analysis and
inclusion in the NDIS. Federal law also dictates which profiles included in SDIS can be uploaded
into the NDIS. Federal law also states that agencies participating in the NDIS must meet certain
specified standards. In addition, federal law provides for post-conviction DNA testing for federal
89
Greely, Riordan, Garrison, et al., “Family Ties,” p. 251.
Ibid., p. 252.
91
Ibid.
92
Ibid., p. 253.
93
Ibid., p. 252.
94
offenders. The following section summarizes current federal law as it pertains to DNA used in a
criminal justice capacity.
Quality Assurance and Proficiency Testing Standards
Under current law,95 the FBI is required to issue (and revise from time to time) Quality Assurance
Standards (QAS), including standards for testing the proficiency of forensic laboratories and
forensic analysts, in conducting DNA analyses.96 By law, the QAS must specify the criteria for
quality assurance and proficiency tests to be applied to the various types of DNA analyses
conducted by forensic laboratories.97 In addition, the QAS must include a system for grading
91
Ibid., p. 252.
Ellen Nakashima, “From DNA of Family, a Tool to Make Arrests,” The Washington Post, April 21, 2008.
9593
The FBI defines a “partial match” as a match between two single source profiles (i.e., offender profiles and forensic
profiles that contain DNA from one perpetrator) having at least one allele in common at each locus. U.S. Department of
Justice, Federal Bureau of Investigation, “Interim Plan for the Release of Information In the Event of a ‘Partial Match’
at NDIS,” Bulletin #BT072006, July 20, 2006, http://www.bioforensics.com/conference08/Familial_Searches/
CODIS_Bulletin.pdf.
9694
Sonia M. Suter, “All in the Family: Privacy and DNA Familial Searching,” Harvard Journal of Law and Technology,
vol. 23, no. 2 (Spring 2010), p. 324 (hereinafter, Suter, “All in the Family”).
90
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offenders. The following section summarizes current federal law as it pertains to DNA used in a
criminal justice capacity.
Quality Assurance and Proficiency Testing Standards
Under current law,97 the FBI is required to issue (and revise from time to time) Quality Assurance
Standards (QAS), including standards for testing the proficiency of forensic laboratories and
forensic analysts, in conducting DNA analyses.98 By law, the QAS must specify the criteria for
quality assurance and proficiency tests to be applied to the various types of DNA analyses
conducted by forensic laboratories.99 In addition, the QAS must include a system for grading
95
42 U.S.C. §14131(a)(2).
96
The most recent QAS took effect on September 1, 2011.
97
42 U.S.C. §14131(a)(3).
92
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proficiency testing performance to determine whether a laboratory is performing acceptably.10098
Under current law, FBI personnel who perform DNA analyses must undergo semiannual external
proficiency testing by a DNA proficiency testing program that meets the standards set in the
QAS.10199
According to the FBI, the QAS describe the minimum standards for a laboratory’s quality
assurance program if performing forensic DNA analysis.102100 The minimum standards cover the
following areas: organization, personnel, facilities, evidence or sample control, validation,
analytical procedures, equipment calibration and maintenance, reports, review, proficiency
testing, corrective action, audits, safety, and outsourcing.103101
Index to Facilitate Law Enforcement Exchange of DNA
Identification Information
The Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103-322) authorized the FBI
to establish an index of DNA profiles (i.e., NDIS). Under current law,104102 the NDIS can contain the
DNA profiles of samples
•
taken from individuals convicted of or charged with a crime, or collected under
applicable legal authorities (e.g., people arrested for crimes), except for DNA
samples that are voluntarily submitted solely for elimination purposes;
•
recovered from crime scenes;
•
recovered from unidentified human remains; and
•
voluntarily contributed from relatives of missing persons.105
97
42 U.S.C. §14131(a)(2).
The most recent QAS took effect on September 1, 2011.
99
42 U.S.C. §14131(a)(3).
100
Ibid.
101
42 U.S.C. §14133(a)(1)(A).
102
CODIS FAQs.
103
Ibid.
104
42 U.S.C. §14132(a).
105103
The NDIS can only include DNA profiles
•
based on analyses performed by or on behalf of a criminal justice agency or the
Department of Defense (DOD) in accordance with available standards that satisfy
or exceed the FBI’s published QAS;
•
that are prepared by laboratories that (1) have been accredited by a nonprofit
professional organization of persons actively involved in forensic science and
nationally recognized within the forensic science community, and (2) undergo
98
Ibid.
42 U.S.C. §14133(a)(1)(A).
100
CODIS FAQs.
101
Ibid.
102
42 U.S.C. §14132(a).
103
Under the Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103-322), the NDIS was only to include
analyses of DNA samples collected from (1) individuals convicted of crimes, (2) crime scenes, and (3) unidentified
human remains. The Justice for All Act of 2004 (P.L. 108-405) amended the authorizing legislation for the NDIS to
(continued...)
98
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The NDIS can only include DNA profiles
•
based on analyses performed by or on behalf of a criminal justice agency or the
Department of Defense (DOD) in accordance with available standards that satisfy
or exceed the FBI’s published QAS;
•
that are prepared by laboratories that (1) have been accredited by a nonprofit
professional organization of persons actively involved in forensic science and
nationally recognized within the forensic science community, and (2) undergo
allow analyses of DNA samples collected from persons who have been charged in an indictment or information with a
crime and other persons whose DNA samples are collected under applicable legal authorities to be included in the
NDIS, provided that profiles from arrestees who have not been charged with a crime and samples that are voluntarily
submitted solely for elimination purposes are not included in the NDIS. The Violence Against Women and Department
of Justice Reauthorization Act of 2005 (P.L. 109-162) amended the authorizing legislation for the NDIS to allow
analyses of samples collected from arrestees to be included in the NDIS.
99
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external audits, not less than once every other year, that demonstrate compliance
with the FBI’s QAS;106104 and
•
that are maintained by federal, state, and local criminal justice agencies or the
DOD pursuant to rules that allow the disclosure of profiles only to other criminal
justice agencies for identification purposes, judicial proceedings, criminal
defense purposes, and, if personally identifiable information is removed, for
research and quality control purposes.107105
Under current law, the FBI is required to expunge the DNA profile of an individual who had a
DNA profile entered into the NDIS on the basis of being convicted for a qualifying federal
offense (see below) if the individual provides a certified copy of a final court order showing that
the conviction was overturned.108106 Also, the FBI is required to expunge the DNA profile of an
individual who had a DNA profile entered into the NDIS on the basis of being arrested under the
authority of the United States if the individual provides a certified copy of a final court order that
establishes that the charge was dismissed or resulted in an acquittal, or that no charge was filed
within the applicable time period.109107 As a condition of having access to the NDIS, states must also
have in place a procedure whereby the state will expunge a profile from the state’s database based
on the same conditions applicable to a profile being expunged from the NDIS.110108 Also, under
current law the Department of Defense is required to expunge the DNA profile of an individual
who had a DNA profile entered into the NDIS on the basis of being convicted of a qualifying
military offense (see below) if the individual provides a certified copy of a final court order
showing that the conviction was overturned.111
(...continued)
allow analyses of DNA samples collected from persons who have been charged in an indictment or information with a
crime and other persons whose DNA samples are collected under applicable legal authorities to be included in the
NDIS, provided that profiles from arrestees who have not been charged with a crime and samples that are voluntarily
submitted solely for elimination purposes are not included in the NDIS. The Violence Against Women and Department
of Justice Reauthorization Act of 2005 (P.L. 109-162) amended the authorizing legislation for the NDIS to allow
analyses of samples collected from arrestees to be included in the NDIS.
106109
Collection of DNA Samples from Certain Federal, District of
Columbia, and Military Offenders
Under current law,110 the Attorney General is permitted to collect DNA samples from “individuals
who are arrested, facing charges, or convicted of a crime or from non-United States citizens who
are detained under the authority of the United States.”111 In addition, the Bureau of Prisons (BOP)
104
According to the FBI, the American Society of Crime Laboratory Directors/Laboratory Accreditation Board
(ASCLD/LAB) and Forensic Quality Services, Inc. (FQS) meet the definition specified at 42 U.S.C. §14132(b)(2)(A)
for an accrediting organization. CODIS FAQs.
107105
42 U.S.C. §14132(b).
108106
42 U.S.C. §14132(d)(1)(A)(i).
109107
42 U.S.C. §14132(d)(1)(A)(ii).
110108
42 U.S.C. §14132(d)(2)(A)(i).
111
10 U.S.C. §1565(e).
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Collection of DNA Samples from Certain Federal, District of
Columbia, and Military Offenders
Under current law,112 the Attorney General is permitted to collect DNA samples from “individuals
who are arrested, facing charges, or convicted of a crime or from non-United States citizens who
are detained under the authority of the United States.”113 In addition, the Bureau of Prisons (BOP)
109
10 U.S.C. §1565(e).
110
42 U.S.C. §14135a(a)(1)(A).
111
The DNA Analysis Backlog Elimination Act of 2000 (P.L. 106-546) required BOP and U.S. probation offices to
collect DNA samples from anyone in their custody who was convicted of qualifying federal offenses. The act defined a
“qualifying federal offense” as murder, voluntary manslaughter, or other offenses relating to homicide; an offense
relating to sexual abuse, sexual exploitation or other abuse of children, or transportation for illegal sexual activity; an
offense relating to peonage or slavery; kidnapping; an offense relating to robbery or burglary; any offense committed in
Indian country relating to murder, manslaughter, kidnapping, maiming, a felony sexual abuse offense, incest, arson,
robbery, or burglary; or any attempt or conspiracy to commit any of these crimes. The Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001
(P.L. 107-56) expanded the definition of “qualifying federal offense” to include crimes of terrorism, crimes of violence,
or any attempt or conspiracy to commit either crime. The Justice for All Act of 2004 (P.L. 108-405) amended the
(continued...)
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is required to collect a DNA sample from each federal prisoner who is, or has been, convicted of a
felony, a sexual abuse crime under chapter 109A of title 18 of the U.S. Code, a crime of
violence,114112 or any attempt or conspiracy to commit any of these crimes.115113 Federal probation
offices responsible for supervising individuals on probation, parole, or supervised release are
required to collect DNA samples from individuals who are, or have been, convicted of any of the
crimes outlined above.116114 Collected samples are required to be submitted to the FBI for analysis
and their resulting DNA profiles are included in the NDIS.117115
Current law contains similar provisions regarding the collection of DNA samples from District of
Columbia offenders. BOP is required to collect a DNA sample from each prisoner who is, or has
been, convicted of a qualifying District of Columbia offense.118116 In addition, the Court Services
and Offender Supervision Agency for the District of Columbia is required to collect DNA
samples from individuals on probation, parole, or supervised release, who are, or have been,
convicted of any qualifying District of Columbia offense.119117 The government of the District of
Columbia may determine which offenses under the District of Columbia Code are considered
qualifying offenses for the purposes of supplying a DNA sample.120118 Collected samples must be
submitted to the FBI for analysis and their resulting DNA profiles are included in the NDIS.121
112
42 U.S.C. §14135a(a)(1)(A).
The DNA Analysis Backlog Elimination Act of 2000 (P.L. 106-546) required BOP and U.S. probation offices to
collect DNA samples from anyone in their custody who was convicted of qualifying federal offenses. The act defined a
“qualifying federal offense” as murder, voluntary manslaughter, or other offenses relating to homicide; an offense
relating to sexual abuse, sexual exploitation or other abuse of children, or transportation for illegal sexual activity; an
offense relating to peonage or slavery; kidnapping; an offense relating to robbery or burglary; any offense committed in
Indian country relating to murder, manslaughter, kidnapping, maiming, a felony sexual abuse offense, incest, arson,
robbery, or burglary; or any attempt or conspiracy to commit any of these crimes. The Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001
(P.L. 107-56) expanded the definition of “qualifying federal offense” to include crimes of terrorism, crimes of violence,
or any attempt or conspiracy to commit either crime. The Justice for All Act of 2004 (P.L. 108-405) amended the119
Under current law,120 the DOD is required to collect DNA samples from each member of the
Armed Forces who is, or has been, convicted of an offense under the Uniform Code of Military
Justice for which a sentence of confinement of more than one year can be imposed, or of any
other offense under the Uniform Code of Military Justice that is comparable to the offenses for
which a DNA sample can be collected from a federal offender (see above).121 DOD is required to
(...continued)
definition of “qualifying federal offense” to include any felony, sexual abuse offense, crime of violence, or attempt or
conspiracy to commit any of these crimes. The Violence Against Women and Department of Justice Reauthorization
Act of 2005 (P.L. 109-162) authorized DOJ to collect DNA samples from arrestees and non-citizens who are detained
under the authority of the United States. The Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-248)
authorized DOJ to also collect DNA samples from individuals facing charges in addition to those who have been
arrested or convicted.
114112
As defined at 18 U.S.C. §16.
115113
42 U.S.C. §14135a(a)(1)(B).
116114
42 U.S.C. §14135a(a)(2).
117115
42 U.S.C. §14135a(b).
118116
42 U.S.C. §14135b(a)(1).
119117
42 U.S.C. §14135b(a)(2).
120118
42 U.S.C. §14135b(d).
121119
42 U.S.C. §14135b(b). The following are considered qualifying offenses under the D.C. Code: (1) any felony; (2)
any offense for which the penalty is greater than one year imprisonment; (3) lewd, indecent, or obscene acts knowingly
committed in the presence of a child under 16 years of age (D.C. Code §22-1312(b)); (4) certain obscene activities
(continued...)
113
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Under current law,122 the DOD is required to collect DNA samples from each member of the
Armed Forces who is, or has been, convicted of an offense under the Uniform Code of Military
Justice for which a sentence of confinement of more than one year can be imposed, or of any
other offense under the Uniform Code of Military Justice that is comparable to the offenses for
which a DNA sample can be collected from a federal offender (see above).123 DOD is required to
involving minors (D.C. Code §22-2201); (5) sexual performances using a minor (D.C. Code §22-3102); (6)
misdemeanor sexual abuse (D.C. Code §22-3006); (7) misdemeanor sexual abuse of child or a minor (D.C. Code §223010.01); or (8) any attempt or conspiracy to commit any of these crimes. D.C. Code §22-4151.
120
10 U.S.C. §1565(a)(1).
121
The requirement to collect DNA samples for people convicted of certain offenses under the Uniform Code of
Military Justice is separate from the DNA samples the Department of Defense collects to aid in the identification of
human remains.
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conduct an analysis of the collected sample and submit the results to the FBI for inclusion in the
NDIS.124122
Post-conviction DNA Testing
The Justice for All Act of 2004 (P.L. 108-405) established procedures for post-conviction DNA
testing in federal courts. Under current law,125123 upon a written motion from an individual
sentenced for a federal offense (hereinafter, “applicant”), the court must order DNA testing of
evidence if all of the following apply:
122
123
•
The applicant asserts, under penalty of perjury, that the applicant is actually
innocent of the federal crime for which the applicant was sentenced, or another
federal or state offense, if (1) “the evidence was entered during a federal death
sentence hearing and exoneration for the offense would entitle the applicant to a
reduced sentence or a new sentencing hearing”; or (2) “in the case of a [s]tate
offense, the applicant demonstrates that there is no adequate remedy under [s]tate
law to permit DNA testing of the … evidence … and, to the extent available, the
applicant has exhausted all remedies available under [s]tate law for requesting
DNA testing of … evidence.”
•
The specified evidence to be tested was secured in relation to the investigation or
prosecution of the federal or state crime for which the applicant claims to be
innocent.
•
The evidence to be tested (1) “was not previously subjected to DNA testing, and
the applicant did not knowingly and voluntarily waive the right to request DNA
testing of the evidence in a court proceeding after the date of enactment of the
[Justice for All Act of 2004 (October 30, 2004)] or [did not] knowingly fail to
request DNA testing of the evidence in a prior motion for post-conviction DNA
testing”; or (2) “was previously subjected to DNA testing and the applicant
requests DNA testing using a new method or technology that is substantially
more probative that prior testing.”
(...continued)
involving minors (D.C. Code §22-2201); (5) sexual performances using a minor (D.C. Code §22-3102); (6)
misdemeanor sexual abuse (D.C. Code §22-3006); (7) misdemeanor sexual abuse of child or a minor (D.C. Code §223010.01); or (8) any attempt or conspiracy to commit any of theses crimes. D.C. Code §22-4151.
122
10 U.S.C. §1565(a)(1).
123
The requirement to collect DNA samples for people convicted of certain offenses under the Uniform Code of
Military Justice is separate from the DNA samples the Department of Defense collects to aid in the identification of
human remains.
124
10 U.S.C. §1565(b).
125
18 U.S.C. §3600(a).
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•
The evidence to be tested “is in the possession of the [g]overnment and has been
subject to a chain of custody and retained under conditions sufficient to ensure
that such evidence has not been substituted, contaminated, tampered with,
replaced, or altered in any respect” that would affect the DNA testing.
•
The proposed DNA testing is “reasonable in scope, uses scientifically sound
methods, and is consistent with accepted forensic practices.”
•
The applicant “identifies a theory of defense that is not inconsistent with an
affirmative defense presented at trial and would establish the actual innocence of
the applicant.”
•
If the applicant was “convicted following a trial, the identity of the perpetrator
was at issue in the trial.”
10 U.S.C. §1565(b).
18 U.S.C. §3600(a).
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•
The proposed DNA testing may produce new material evidence that would
support the affirmative defense theory presented at trial and raise a reasonable
probability that the applicant did not commit the crime.
•
The applicant certifies that he or she will provide a DNA sample for comparison
purposes.
•
The motion is made in a timely fashion.126124
If the court orders DNA testing, the testing is carried out by the FBI.127125 However, the court can
order DNA testing to be conducted by another “qualified laboratory if the court makes all
necessary orders to ensure the integrity of the … evidence and the reliability of the testing process
and results.”128126 The cost of any DNA testing is borne by the applicant, unless the applicant is
indigent; in that case, the cost of the DNA testing is borne by the government.129127
Test results relating to the DNA sample provided by the applicant are to be included in the
NDIS.130128 If the test results ordered by the court are “inconclusive or show that the applicant was
the source of the tested evidence, the applicant’s DNA profile may be retained in the NDIS.”131129
Moreover, if the test results show that the applicant was not the source of the tested evidence, and
a comparison of the applicant’s DNA profile with other forensic profiles in the NDIS result in a
match, DOJ is to contact the appropriate agency and preserve the applicant’s DNA sample.132
126130
However, if the test results exclude the applicant as the source of the tested evidence, and a
comparison between the applicant’s DNA profile and forensic profiles in the NDIS does not result
in a match, DOJ must destroy the applicant’s DNA sample and ensure that the applicant’s DNA
profile is not stored in the NDIS if there is no other legal authority to retain the profile in the
NDIS.131
If the results of the DNA test are inconclusive, the court can order further testing, if appropriate,
or it can deny the applicant relief.132 If the results of the DNA test demonstrate that the applicant
was the source of the evidence tested, the applicant is denied relief, and on a motion of the
124
There is a rebuttable presumption of timeliness if the motion is made within 60 months of the enactment of the
Justice for All Act of 2004 (October 30, 2004) or within 36 months of conviction, whichever comes later. The
presumption of timeliness may be rebutted upon a showing that the applicant’s motion for DNA testing is based solely
upon information used in a previously denied motion or of clear and convincing evidence that the applicant’s filing is
done solely to cause delay or harass. For any motion that is not made within 60 months of the enactment of the Justice
for All Act of 2004 or within 36 months of conviction, there is a rebuttable presumption against timeliness. The
presumption against timeliness can be rebutted upon the court’s finding (1) that the applicant was or is incompetent and
such incompetence substantially contributed to the delay in the applicant’s motion for a DNA test; (2) the evidence to
be tested is newly discovered DNA evidence; (3) that the applicant’s motion is not based solely upon the applicant’s
own assertion of innocence and, after considering all relevant facts and circumstances surrounding the motion, a denial
would result in a manifest injustice; or (4) upon good cause shown. 18 U.S.C. §3600(a)(10)(B).
127125
18 U.S.C. §3600(c)(1).
128126
18 U.S.C. §3600(c)(2).
129127
18 U.S.C. §3600(c)(3).
130128
18 U.S.C. §3600(e)(2).
131129
18 U.S.C. §3600(e)(3)(A).
132130
18 U.S.C. §3600(e)(3)(B).
131
18 U.S.C. §3600(e)(3)(C).
132
18 U.S.C. §3600(f)(1).
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However, if the test results exclude the applicant as the source of the tested evidence, and a
comparison between the applicant’s DNA profile and forensic profiles in the NDIS does not result
in a match, DOJ must destroy the applicant’s DNA sample and ensure that the applicant’s DNA
profile is not stored in the NDIS if there is no other legal authority to retain the profile in the
NDIS.133
If the results of the DNA test are inconclusive, the court can order further testing, if appropriate,
or it can deny the applicant relief.134 If the results of the DNA test demonstrate that the applicant
was the source of the evidence tested, the applicant is denied relief, and on a motion of the
and Grants
government, the court can determine whether the applicant’s claim of actual innocence was false.
If the court finds the claim was false, it can
•
hold the applicant in contempt of court;
•
assess against the applicant any cost of DNA testing;
•
forward the findings to BOP, who may wholly, or in part, deny the applicant’s
good conduct time;135133
•
if the applicant is eligible for parole, forward the finding to the U.S. Parole
Commission so the commission can deny parole on the basis of the finding; or
•
if the test results relate to a state offense, forward the findings to the appropriate
state official.136134
Under current law, if the applicant is convicted for making false assertions relating to postconviction DNA testing, the applicant is to be sentenced to no less than three years imprisonment,
to run consecutively with any other term of imprisonment the applicant is serving.137135
If the results of the DNA testing demonstrate that the applicant was not the source of the tested
evidence presented as a part of the case against the applicant, the applicant can file a motion for a
new trial or resentencing, as appropriate, notwithstanding any law that would bar the motion as
untimely.138136 Under current law, the applicant would be granted a new trial or resentencing, if the
DNA results, when considered with all other evidence in the case (regardless of whether such
evidence was introduced at trial), establish by compelling evidence that a new trial would result
in an acquittal of the federal offense the applicant is currently sentenced for, or in the case of
resentencing, if evidence of a federal or state offense was admitted during a federal death
sentencing hearing and exoneration for the offense would entitle the applicant to a reduced
sentence or a new sentencing hearing.139
133
18 U.S.C. §3600(e)(3)(C).
18 U.S.C. §3600(f)(1).
135137
Preservation of Biological Evidence
The Justice for All Act of 2004 (P.L. 108-405), among other things, established standards for the
preservation of biological evidence by the government. Under current law,138 the federal
government is required to preserve biological evidence139 that was secured in the investigation or
prosecution of a federal offense, if a defendant was imprisoned for the offense, unless140
133
Each prisoner serving a term of imprisonment of more than one year, but not prisoners serving a life sentence, can
receive a good time credit of up to 54 days per year to count toward serving the sentence. The amount of the credit is
subject to the determination of BOP. 18 U.S.C. §3624(b).
136134
18 U.S.C. §3600(f)(2).
137135
18 U.S.C. §3600(f)(3).
138136
18 U.S.C. §3600(g)(1).
139
18 U.S.C. §3600(g)(2).
134
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Preservation of Biological Evidence
The Justice for All Act of 2004 (P.L. 108-405), among other things, established standards for the
preservation of biological evidence by the government. Under current law,140 the federal
government is required to preserve biological evidence141 that was secured in the investigation or
prosecution of a federal offense, if a defendant was imprisoned for the offense, unless142
137
18 U.S.C. §3600(g)(2).
138
18 U.S.C. §3600A(a).
139
“Biological evidence” is defined as a sexual assault forensic examination kit, or semen, blood, saliva, hair, skin
tissue, or other identified biological material. 18 U.S.C. §3600A(b).
140
18 U.S.C. §3600A(c).
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•
“the court denied a request or motion for DNA testing [of the evidence] and no
appeal is pending”;
•
the defendant “knowingly and voluntarily waived the right to request DNA
testing [of the evidence] in a court proceeding conducted after the date of
enactment of the [Justice for All Act of 2004 (October 30, 2004)]”;
•
“after a conviction becomes final and the defendant has exhausted all
opportunities for direct review of the conviction, the defendant is notified that the
evidence may be destroyed and the defendant does not file a motion [for postconviction DNA testing] within 180 days of receipt of notice”;
•
“the evidence must be returned to its rightful owner, or it is of such size, bulk, or
physical character as to render retention impracticable and the [g]overnment
takes reasonable measures to remove and preserve portions of the evidence
sufficient to permit future DNA testing”; or
•
the evidence has been the subject of post-conviction DNA testing (see above) and
the results of the testing demonstrate that the defendant was the source of the
evidence.
Grants for DNA-Related Programs
Several grant programs provide assistance to state and local governments for forensic sciences. A
bulk of the programs focus on providing state and local governments with funding to reduce the
backlog of forensic and convicted offender samples waiting to be processed and entered into the
NDIS. However, some grant programs provide funding for other purposes, such as offsetting the
cost of providing post-conviction DNA testing. This section of the report provides a brief
overview of grants for forensic sciences.
Debbie Smith DNA Backlog Grant Program
The Debbie Smith DNA Backlog Grant Program (hereinafter, “Debbie Smith grants”) provides
grants to state and local governments for five major purposes: (1) conducting analyses of DNA
samples collected under applicable legal authority for inclusion in the NDIS, (2) conducting
analyses of forensic DNA samples for inclusion in the NDIS, (3) increasing the capacity of state
and local laboratories to carry out DNA analyses, (4) collecting DNA samples from people
140
18 U.S.C. §3600A(a).
“Biological evidence” is defined as a sexual assault forensic examination kit, or semen, blood, saliva, hair, skin
tissue, or other identified biological material. 18 U.S.C. §3600A(b).
142
18 U.S.C. §3600A(c).
141
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required to submit them and forensic samples from crimes, and (5) ensuring that analyses of
forensic DNA samples are carried out in a timely manner. The Katie Sepich Enhanced DNA
Collection Act of 2012 (P.L. 112-253) amended the Debbie Smith program to set aside up to $10
million of the amount appropriated for Debbie Smith grants for FY2013-FY2015 to assist states
with the costs associated with collecting DNA samples from arrestees (assuming there is statutory
authority in the state to collect DNA sample from people arrested for certain offenses). The
Sexual Assault Forensic Evidence Reporting Act of 2013 (the SAFER Act of 2013, Title X of P.L.
113-4) added two new purposes for which Debbie Smith grants can be used: to conduct an audit
of the samples of sexual assault evidence in the possession of a state or unit of local government
that are awaiting testing and to ensure that the collection and processing of DNA evidence by law
enforcement and to ensure the collection and processing of DNA evidence is carried out in a
timely manner and in accordance with the protocols and practices the FBI is required to develop
under the act.
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The Attorney General is required to award funds using a formula. The formula distributes funds
amongst state and local governments to maximize the effective utilization of DNA technology to
solve crimes and protect public safety. The formula must also allocate funding amongst state and
local governments to reduce backlogs by considering the number of offender and forensic
samples awaiting DNA analysis in the jurisdiction along with the population and number of
violent crimes in the jurisdiction. Current law requires DOJ to award not less than 0.5% of the
total amount appropriated each fiscal year to each state and the District of Columbia. The
territories are to receive 0.125% of the total appropriation.
Agencies receiving a grant under the program are required to certify that DNA analyses are
conducted in laboratories that satisfy the FBI’s QAS and are operated either by a state or local
government or by a private laboratory under contract with the state or local government. Grants
for conducting analyses of DNA samples collected under applicable legal authority for inclusion
in the NDIS, conducting analyses of forensic casework for inclusion in the NDIS, and ensuring
that analyses of forensic DNA samples are carried out in a timely manner can be made in the form
of a contract or voucher for laboratory services that can be redeemed by nonprofit or for-profit
laboratories that satisfy the QAS and have been approved by the Attorney General.
State and local governments receiving funding under the program are required to submit a report
to DOJ with a summary of the activities carried out under the grant and an assessment of whether
such activities are meeting the needs identified in the grant application, as well as other
information the Attorney General may require. DOJ may award not more than 1% of grant
funding each fiscal year to states, units of local government, and nonprofit professional
organizations of persons actively involved in forensic science and nationally recognized within
the forensic science community to help offset the cost of accrediting and auditing laboratories.
The SAFER Act of 2013 established a series of conditions for states or units of local government
receiving a grant under the Debbie Smith program for the purposes of conducting an audit of
sexual assault evidence. The act, among other things, requires states and local governments
receiving grants for this purpose to (1) submit a plan for performing an audit of samples, (2)
provide an estimate of the number of samples, (3) complete the audit within one year of receiving
the grant, and (4) submit a report to DOJ every 60 days for at least one year after the audit is
completed that provides data on the number of samples in the state’s or unit of local government’s
possession along with data on new sexual assault evidence the state or local government receives
and how those samples are being processed.
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The SAFER Act of 2013 also requires the FBI, in consultation with federal, state, and local law
enforcement agencies, to develop protocols and practices for the accurate, timely, and effective
collection and processing of DNA evidence, including protocols and practices specific to sexual
assault cases. The protocols and practices are required to address (1) what evidence should be
collected by law enforcement and forwarded for testing and the order in which that evidence
should be tested, (2) a reasonable period of time for evidence to be forwarded to a laboratory for
testing, (3) a reasonable period of time in which each stage of laboratory testing should be
conducted, (4) a system to encourage communication between actors in the criminal justice
system (e.g., law enforcement, courts, and laboratory personnel and crime victims) about the
status of evidence testing, and (5) standards for audits of sexual assault evidence in the possession
of state and local governments.
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Debbie Smith grants were originally authorized under the Justice for All Act of 2004 (P.L. 108405). This law amended the DNA Backlog Elimination Act of 2000,143141 authorizing appropriations
of $151.0 million for each of FY2004-FY2009.144142 The program was reauthorized under the
Debbie Smith Reauthorization Act of 2008 (P.L. 110-360), which includes authorized
appropriations of $151.0 million for FY2009-FY2014. A The Debbie Smith Reauthorization Act of
2014 (P.L. 113-182) extended the $151.0 million per fiscal year authorization until FY2019. A
funding history for this program since
FY2006 is provided in Table 21.
Kirk Bloodsworth Post-Conviction DNA Testing Grant Program
The Kirk Bloodsworth DNA Post-conviction DNA Testing Grant program was authorized by the
Justice for All Act of 2004 (P.L. 108-405). The act authorized the Attorney General to make
grants to states to help defray the costs of post-conviction DNA testing programs. The act
authorized appropriations of $5.0 million for FY2005-FY2009. A funding history for this
program since FY2006 is provided in Table 21.
Sexual Assault Forensic Exam Program Grants
The Sexual Assault Forensic Exam Program Grants were authorized under the Justice for All Act
of 2004 (P.L. 108-405). The program provides grants for training, technical assistance, education,
equipment, and information relating to the identification, collection, preservation, analysis, and
use of DNA samples and evidence by medical personnel and those treating victims of sexual
assault. Under the program, entities eligible to receive grants include states, units of local
government, and sexual assault examination programs. The act authorized appropriations of $30.0
million for each of FY2005-FY2009. P.L. 110-360 extended the same authorized amount through
FY2014. The Debbie Smith Reauthorization Act of 2014 (P.L. 113-182) extended the $30.0
million per fiscal year authorization until FY2019. A funding history for this program since
FY2006 is provided in Table 2.
1431.
DNA Research and Development Grants
The Justice for All Act of 2004 authorized grants for research and development for improving
forensic DNA technology, including increasing the accuracy and efficiency of DNA analysis,
decreasing the time and expense of conducting DNA analysis, and increasing its portability. In
addition, the law authorized grants for demonstration projects to evaluate the use of DNA
technology in conjunction with other forensic analyses. The act authorized funding of $15.0
million for each of FY2005-FY2009. This program has not received any appropriations since
FY2006.
141
The DNA Backlog Elimination Act of 2000 (P.L. 106-546) authorized grants to increase the capacity of state and
local government laboratories to conduct DNA analysis of biological samples from crime scenes.
144142
On March 11, 2003, President George W. Bush announced his DNA Initiative, “Advancing Justice Through DNA
Technology,” which provided “funds, training, and assistance to ensure that DNA technology reaches its full potential
to solve crimes, protect the innocent, and identify missing persons.” From FY2004 to FY2007, Congress appropriated
funding for the President’s DNA initiative, although the initiative was not authorized in statute.
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DNA Research and Development Grants
The Justice for All Act of 2004 authorized grants for research and development for improving
forensic DNA technology, including increasing the accuracy and efficiency of DNA analysis,
decreasing the time and expense of conducting DNA analysis, and increasing its portability. In
addition, the law authorized grants for demonstration projects to evaluate the use of DNA
technology in conjunction with other forensic analyses. The act authorized funding of $15.0
million for each of FY2005-FY2009. This program has not received any appropriations since
FY2006.and Grants
DNA Training and Education for Law Enforcement, Correctional
Personnel, and Court Officers
Under this program, the Attorney General is required to make grants to provide training, technical
assistance, education, and information regarding the identification, collection, preservation,
analysis, and use of DNA samples and evidence by law enforcement personnel, court officers,
forensic science professionals, and corrections personnel. The program was originally authorized
under the Justice for All Act of 2004 (P.L. 108-405), which authorized $12.5 million for each of
FY2005-FY2009. P.L. 110-360 extended the same authorized amount through FY2014. This
program has not received any appropriations since FY2006The
Debbie Smith Reauthorization Act of 2014 (P.L. 113-182) extended the $12.5 million per fiscal
year authorization until FY2019. This program has not received a direct appropriation since
FY2006, but since FY2013, Congress has granted the DOJ the authority to use up to 4% of the
appropriation for the DNA Analysis, Capacity Enhancement, and Debbie Smith Grants for the
purposes of this program.
Appropriations for DNA-Related Grant Programs
Since FY2006, Congress has appropriated over $100 million each fiscal year for DNA analysis
and other forensic programs and activities. As shown in Table 21, most funding each fiscal year
was dedicated to reducing DNA backlogs, enhancing crime laboratory capacity, and other
activities related to DNA analysis. In FY2006 and FY2007, Congress gave the Administration
discretion in how to award appropriated funding for DNA-related activities. The report to
accompany the FY2006 Science, State, Justice, Commerce, and Related Agencies Appropriations
Act (P.L. 109-108) stated that the appropriation was for a “capacity enhancement program
including eliminating casework backlogs, eliminating offender backlogs, strengthening crime lab
capacity, training of the criminal justice community and identifying missing persons.”145143 Starting
in FY2008, Congress continued to appropriate funding for DNA analysis and capacity
enhancement, including Debbie Smith grants.146 The the purposes authorized by the Debbie Smith Grant program.144 The
language in the FY2008-FY2013
FY2015 appropriations bills did not require DOJ to use all of the
funding for DNA analysis and capacity
enhancement for Debbie Smith grants, rather, it just had
to award a portion of the funding for the
programspurposes consistent with the program. As such, DOJ has
awarded funding it received for DNA analysis and capacity
enhancement under a variety of
programs, including Forensic DNA Backlog Reduction,
Convicted Offender DNA Backlog
Reduction, Forensic Science Training Development and
145 Delivery, Forensic DNA Unit Efficiency
Improvement, Solving Cold Cases with DNA Evidence, DNA to Identify Missing Persons, and
DNA Research and Development.
143
U.S. Congress, House Committee on Appropriations, Subcommittee on Science, The Departments of State, Justice,
and Commerce, and Related Agencies, Making Appropriations for Science, the Departments of State, Justice,
Commerce and Related Agencies for the Fiscal Year Ending September 30, 2006, and for Other Purposes, Report to
Accompany H.R. 2862, 109th Cong., 1st sess., November 7, 2005, H.Rept. 109-272 (Washington: GPO, 2005), p. 121.
146144
See P.L. 110-161, P.L. 111-8, P.L. 111-117, P.L. 112-55, P.L. 113-6, P.L. 113-76, and P.L. 113-6235.
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Delivery, Forensic DNA Unit Efficiency Improvement, Solving Cold Cases with DNA Evidence,
DNA to Identify Missing Persons, and DNA Research and Development.147
Table 2and Grants
Table 1. Appropriations for Forensic Science Grant Programs
Appropriations in millions of dollars
FY2006
FY2007
FY2008
FY2009
FY2010
FY2011
FY2012
FY2013a
107.1
112.1
152.3
156.0
161.0
133.4
125.0
116.2
125.0
125.0
DNA Analysis, Capacity
Enhancement, and
Debbie Smith Grants
(103.2)
(108.2)
(147.4)
(151.0)
(151.0)
(125.1)
(117.0)
(108.8b)
(117.0b)
(117.0b)
Kirk Bloodsworth Postconviction DNA Testing
(3.9)
(3.9)
(4.9)
(5.0)
(5.0)
(4.1)
(4.0)
(3.7)
(4.0)
(4.0)
—
—
—
(5.0)
(4.1)
(4.0)
(3.7)
DNA-Related and Forensic
Programs and Activities
DNA Analysis, Capacity
Enhancement, and Debbie
Smith Grants
Kirk Bloodsworth Postconviction DNA Testing
(4.0)
(4.0)
DNA-Related and
Forensic Programs and
Activities
Sexual Assault Forensic
Exam
FY2014
Source: FY2006-enacted appropriations are taken from OJP’s FY2008 congressional budget submission;
FY2007-enacted appropriations are taken from OJP’s FY2009 congressional budget submission; FY2008-enacted
appropriations are taken from OJP’s FY2010 congressional budget submission; and FY2009- and FY2010-enacted
appropriations are taken from OJP’s FY2011 congressional budget submission; FY2011-enacted appropriations
are based on a CRS analysis of the text of P.L. 112-10; FY2012-enacted appropriations are taken from H.Rept.
112-284; FY2013 appropriation provided by the U.S. Department of Justice.
Notes: Amounts under the DNA-Related and Forensic Programs and Activities might not sum to total due to
rounding.
a.
The FY2013 enacted amount includes a 1.877% rescission per section 3001 of P.L. 113-6 and a 0.2%
rescission ordered by the Office of Management and Budget per section 3004 of P.L. 113-6. The FY2013
enacted amount also includes the amount sequestered per the Budget Control Act of 2011(P.L. 112-25).
b.
Under P.L. 113-6, up to 4% of the funding for DNA analysis can be used for the purposes described under
the DNA Training and Education for Law Enforcement, Correctional Personnel, and Court Officers
program.
Selected Issues for Congress
In the 1990s and the early part of the last decade, most of the debate about the use of DNA in
criminal justice centered on the scope of DNA databases, reducing the backlog of DNA casework,
and providing access to post-conviction DNA testing. Most of this debate faded with the
enactment of the Violence Against Women and Department of Justice Reauthorization Act of
2005 (P.L. 109-162), which expanded federal collection statutes to include anyone arrested or
detained under the authority of the United States. The act also expanded the scope of the NDIS to
include DNA profiles of individuals arrested for state crimes. However, concerns about the
backlog of DNA casework have persisted. In addition, new issues related to the use of DNA in
criminal justice have emerged, including whether (1) DNA databases should be used to conduct
familial searches, (2) sexual assault evidence collections kits should be standardized, and (3)
there should be national accreditation standard for forensic laboratories. Each of these issues are
discussed in more detail below.
147
A breakdown of awards under each of these programs is available online at http://nij.gov/funding/pages/laboratoryenhancement.aspx.
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The NDIS and Familial Searching
The debate over familial searching is framed by the question of how to balance the desire of law
enforcement agencies to use all available tools for solving crimes against the privacy of
individuals who might fall under suspicion because they happen to be related to someone
convicted, or in some cases arrested, for a crime. The success of familial searching depends on a
close relationship between someone with a profile in the database and the unknown perpetrator.148
Proponents of familial searching cite research that indicates children of parents who have been
convicted of a crime are more likely themselves to be convicted of a crime. Further, siblings who
have been convicted are more likely to have other siblings who have been convicted.149
Proponents also cite data from the Bureau of Justice Statistics (BJS) indicating that 46% of jail
inmates reported that they had at least one close relative who had been incarcerated.150 However,
opponents of familial searching challenge its empirical basis. They stress that if offenders are
more likely to have convicted relatives then their relatives’ profiles would already be in the
database and there would be no need to expand database searches to include non-convicted
relatives.151 Also, conviction data might not be a perfect indicator of criminal propensity. Biases
in the criminal justice system, both racial and geographical, might lead certain groups of people,
namely racial and ethnic minorities living in urban centers, to be arrested and convicted more
than others with a similar rate of criminality. It could be possible that a law-abiding individual is
more likely than a convicted offender to have a convicted relative.152 On the other hand, many
people commit crimes for which they are never arrested or convicted, so it is also possible that
convicted offenders have relatives who have committed crimes for which there is no official
record.
One of the primary privacy concerns regarding the use of familial searching is that it will put
innocent people under “genetic surveillance” because they are related to someone whose profile
is in a DNA database.153 Proponents of familial searching argue that while an offender’s family
could be questioned by law enforcement as a result of a partial match, they could also come under
the scrutiny of law enforcement during the course of an investigation that did not use familial
searching.154 For instance, an eyewitness viewing a lineup may indicate that one face bears a
strong resemblance to—but is not actually—the perpetrator; at this point law enforcement might
turn attention to a suspect’s brother or other relatives. Relatives could also come under suspicion
because the investigation turned up evidence of their involvement. Proponents also argue that
familial searching might actually exclude relatives as the potential perpetrator.155 Opponents
counter that familial searching does not search the entire pool of suspects. Rather, it only subjects
relatives of convicted offenders to potential law enforcement scrutiny; relatives of individuals
who have not been convicted of, or arrested for, a crime are not at risk of becoming the subject of
148
Frederick R. Bieber, Charles H. Brenner, and David Lazer, “Finding Criminals Through DNA of Their Relatives,”
Science, vol. 312, no. 5778 (June 2, 2006), p. 1316 (hereinafter, Bieber, Brenner, and Lazer, “Finding Criminals
Through the DNA of Their Relatives,” p. 1316).
149
Ibid.
150
Ibid.
151
Erin Murphy, “Relative Doubt: Familial Searches of DNA Databases,” Michigan Law Review, vol. 109, no. 3
(December 2010), p. 306 (hereinafter, Murphy, “Relative Doubt”).
152
Ibid., p. 307.
153
Suter, “All in the Family,” p. 361.
154
Greely, Riordan, Garrison, et al., “Family Ties,” p. 257.
155
Epstein, “Genetic Surveillance,” p. 171.
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an investigation through familial searching.156 Also, some opponents assert, if society has an
interest in identifying perpetrators and exonerating the innocent by using a method that would
subject non-convicted individuals to law enforcement scrutiny, then the most equitable and
optimal mean to achieve this goal is universal DNA collection so that everyone, not just those
who are related to someone with a profile in a DNA database, can share in the burdens and
benefits of DNA databases.157
It has been estimated that using familial searching could increase the cold hit rate (i.e., a match in
the database between an offender or arrestee profile and a forensic profile from a case where there
is no suspect) in the United States from 10% to 14%.158 However, opponents argue that familial
searching would strain law enforcement’s resources because they will have to investigate multiple
leads, and in some cases all of the leads might be false-positives. Proponents counter this claim
by noting that procedures could be put in place to reduce the number of leads to only the most
promising ones. For example, laboratories could use kinship analysis to calculate the probability
that a known offender DNA profile in the databases is related to the individual who left a DNA
sample at the crime scene.159 Y-chromosome analysis could, for instance, help determine whether
a known offender in the database and the unknown suspect who left a DNA sample at a crime
scene are related through male lineage and analysis of mitochondrial DNA (mtDNA) could help
determine whether two people are related through maternal lineage.160 While kinship analysis
would make familial searching more efficient, DNA databases are currently not equipped to
conduct them.161 In addition, Y-chromosome and mitochondrial DNA analysis would require
additional testing of both the known offender and the forensic samples.
Opponents argue that familial searching would exacerbate existing racial and ethnic disparities in
the criminal justice system. African Americans and Hispanics, compared to whites, are
disproportionately arrested and convicted, and since the NDIS is comprised of samples collected
from individuals arrested and convicted for qualifying offenses, minorities are more likely to have
profiles in the NDIS.162 Disparities in the racial/ethnic compositions of profiles in the NDIS could
mean that minority groups would be disproportionately investigated as a result of familial
searches.163 It was estimated that using the NDIS for familial searching could mean that
approximately 17% of the African American population in the United States would be “findable”
156
Murphy, “Relative Doubt,” p. 308.
Ibid.
158
Bieber, Brenner, and Lazer, “Finding Criminals Through the DNA of Their Relatives,” p. 1316.
159
Kimberly A. Wah, “A New Investigative Lead: Familial Searching as an Effective Crime-Fighting Tool,” Whittier
Law Review, vol. 29, no. 4 (Summer 2008), p. 976 (hereinafter, Wah, “A New Investigative Lead”).
160
Y-chromosomes and mitochondrial DNA (mtDNA) are considered “lineage markers” because they are passed down
from one generation to the next without changing (except for cases where they mutate). The Y-chromosome is only
found in males. Paternal lineages can be traced using Y-chromosome markers because a father passes his Ychromosome on to his son. Therefore, fathers and sons and brothers will share the same Y-chromosome (except for
cases where the chromosome mutates). In contrast, mtDNA is only passed from a mother to her children, therefore all
siblings with the same biological mother will share the same mtDNA (except for cases where the mtDNA mutates), as
opposed to the Y-chromosome, which is only shared by male siblings. In addition, children will share mtDNA with
maternal relatives. Therefore, mtDNA can be used to trace maternal lineage. John M. Butler, Forensic DNA Typing:
Biology, Technology, and Genetics of STR Markers (2nd ed.) (Burlington, MA: Elsevier Academic Press, 2005), pp.
201-204 and 247-249.
161
Murphy, “Relative Doubt,” p. 300.
162
Suter, “All in the Family,” pp. 368-370.
163
Ibid., p. 370.
157
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through the database, compared to approximately 4% of the white population (which includes
non-African American Hispanics).164 Disparities in who is investigated as a result of familial
searching could also compound existing disparities in the criminal justice system, assuming that
more investigations would result in more arrests and convictions.165 While proponents of familial
searching acknowledge that minority groups are more likely to become suspects in investigations
resulting from familial searching, they argue that minority groups might benefit from the policy
because crime is disproportionately intraracial, meaning that victims of crimes are more likely to
be from minority groups.166 Therefore, minority groups may be more likely to benefit from crimes
being solved through familial searching.167 Proponents have also argued that even if an
investigative technique like familial searching does have a disproportionate effect on a specific
group, it is not grounds to forgo the technique if it will solve crimes.168
Another privacy concern about the use of familial testing is that it could disrupt families.
Specifically, opponents of familial searching have voiced concerns that someone might learn that
(1) a relative had an unknown criminal history, (2) there is an existing unknown biological
relationship between two people, or (3) there is no biological relationship between two people
who assume they are related. However, the threat that familial searching poses to families appears
to be proportional to how thorough and discreet law enforcement is in investigating leads
generated by the search. Proponents argue that family secrets would only be exposed if law
enforcement reveals how and why the suspect became a target of the investigation.169 Since
partial matches only suggest that an unknown perpetrator and a known offender might be related,
it is unlikely that law enforcement would be able to obtain a warrant to compel the individual to
provide a DNA sample.170 Hence, law enforcement would need to investigate the lead further and
develop corroborating evidence that the relative might be the unknown perpetrator. As such, law
enforcement would most likely not have to share with the subject of the investigation that the lead
was generated through a familial search. In cases where a DNA sample is collected from a
suspect, law enforcement should be able to test it against the forensic sample to determine if the
suspect committed the crime. They would not have to let the suspect know that they are not
related to the person whose profile generated the lead.171 In addition, law enforcement can legally
collect and analyze DNA samples from items the suspect discarded in an area where the suspect
had no expectation of privacy (for example, saliva on a soda can the suspect threw away), which
would allow law enforcement to surreptitiously exclude a suspect as the possible offender.172
Proponents have noted that law enforcement could also uncover personal information about a
suspect or a suspect’s family during the course of an investigation that involved alternative types
of surveillance or searches.173 Yet, despite measures taken by law enforcement to not expose any
164
Greely, Riordan, Garrison, et al., “Family Ties,” p. 259.
Suter, “All in the Family,” p. 370.
166
Lazer, Searching the Family Tree for Suspects, p. 6.
167
Ibid., pp. 6-7.
168
Epstein, “Genetic Surveillance,” p. 163.
169
Ibid., p. 165.
170
Jessica D. Gabel, “Probable Cause from Probable Bonds: A Genetic Tattle Tail Based on Familial DNA,” Hastings
Women’s Law Journal, vol. 21, no. 1 (Winter 2010), p. 41 (hereinafter, Gabel, “Probable Cause from Probable
Bonds”).
171
Epstein, “Genetic Surveillance,” p. 165.
172
Gabel, “Probable Cause from Probable Bonds,” p. 42.
173
Suter, “All in the Family,” p. 328.
165
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family secrets, when law enforcement investigates biological relationships, there is the possibility
that previously unknown relationships might be revealed.174
As outlined above, Congress has delineated the scope of the NDIS in law, but the law is silent as
to how the NDIS can be used to make matches. In the conference report for the Commerce,
Justice, Science, and Related Agencies Act, 2011 (P.L. 112-55), Congress encouraged the FBI to
“undertake activities to facilitate familial DNA searches of the [NDIS] and … consider the
establishment of procedures allowing familial searches only for serious violent and sexual crimes
where other investigative leads have been exhausted.”175 Congress also specified that the
procedures “should provide appropriate protections for the privacy rights” of individuals with a
profile in the NDIS.176 While Congress has encouraged the FBI to open up the NDIS for familial
searching, there are a couple of issues Congress might consider related to this. First, if a potential
familial match is made using the NDIS, should law enforcement be required to conduct additional
testing before the lead is investigated further (such as Y-chromosome and mtDNA testing of both
the forensic and offender DNA samples or searching public records to determine if the offender
and the suspect are related)? Second, should there be additional funding for the FBI or the Office
of Justice Programs to provide training to law enforcement on how to investigate leads resulting
from familial matching so as to decrease any risk of accidently revealing family secrets?
Reducing the Backlog
If Congress chooses to consider legislation to reduce the size of the DNA backlog, two options it
might consider are increasing the capacity of state and local laboratories to conduct DNA
analyses and facilitating partnerships between public and private laboratories.
Enhancing the Capacity of State and Local Laboratories
As described above, Debbie Smith grants can be used by state and local laboratories to reduce
offender and forensic casework backlogs and enhance their capacity to conduct DNA analyses.
This program represents the primary mechanism by which Congress has promoted efforts to
reduce the DNA backlog. A study of DNA backlogs in 2007 found that there is a need for Debbie
Smith grants. Of the laboratories responding to the survey, 83% replied that they would expect an
increase in forensic casework backlogs if they did not receive Debbie Smith grants.177 Moreover,
nearly 90% of laboratories responded that state and local funding would not be sufficient if they
did not receive federal support.178 The study also found that while laboratories are better prepared
to process offender and arrestee samples, they still rely on federal funding to conduct these
analyses. Nearly 61% of responding laboratories reported that they would expect an increase in
offender and arrestee sample backlogs if they no longer received Debbie Smith grants.179
174
Lazer, Searching the Family Tree for Suspects, p. 6.
U.S. Congress, House Committee on Appropriations, Agriculture, Rural Development, Food and Drug
Administration, and Related Agencies Programs for the Fiscal Year Ending September 30, 2012, and for Other
Purposes, Conference Report to Accompany H.R. 2112, 112th Cong., 1st sess., November 14, 2011, H.Rept. 112-284
(Washington: GPO, 2011), p. 238.
176
Ibid.
177
2007 DNA Evidence and Offender Analysis Measurement, p. 9.
178
Ibid.
179
Ibid., p. 13.
175
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However, it is possible that respondents to the survey overstated the need for federal support out
of fear that federal funding for DNA backlogs could be curtailed or eliminated if there was not a
large demand for it.
Data from the BJS’s 2009 Census of Publicly Funded Forensic Crime Laboratories indicates that
backlogs of DNA evidence persist. There was a 12% increase in the number of backlogged
(defined as a pending request for analysis that had not been completed in at least 30 days)
forensic casework samples between the end of 2008 (355,300) and the end of 2009 (398,900).180
There was a 4% decrease in convicted offender/arrestee samples over this same time period, but
at the end of 2009 there were still 494,400 convicted offender/arrestee samples awaiting
analysis.181 Forensic crime labs also reported that at the end of 2009 there was a backlog of
19,000 requests to process sexual assault evidence kits, but this was down from a backlog of
21,000 kits at the end of 2008.182
Congress may choose to consider the role the federal government should play in reducing state
DNA backlogs. Large backlogs can delay the resolution of criminal investigations, and Congress
might have an interest in ensuring that as many criminals as possible are apprehended. As
discussed above, it appears that laboratories rely on federal funding to help reduce backlogs,
especially forensic casework backlogs. In addition, even though Congress has appropriated
approximately $1.062 billion for backlog reduction and laboratory capacity enhancement
programs since FY2006 (see Table 2), data show that backlogs of offender and forensic casework
are persistent. States have expanded the pool of people who are required to submit DNA samples,
and law enforcement agencies have started to collect biological evidence in more cases. But the
increasing demand for DNA analysis has not been met with increased capacity to conduct the
analyses. One policy option policy makers could consider is increasing authorized appropriations
for the Debbie Smith grants over the current $151 million per fiscal year. While providing
additional funding to states for backlog reduction could allow them to hire more analysts to work
on reducing the backlog, it is likely that it would take some time to bring the backlog down from
current levels. It can take up to one year to recruit, interview, and hire a new analyst; and it can
take another year or two until the analyst is fully trained.183 In addition, the workloads of more
experienced analysts might actually decrease when new analysts are hired because the more
experienced analysts will have to train and review the work of the new analysts.184 Congress
might also consider whether to allow Debbie Smith grants to be used for capital investments, such
as new construction to expand crime laboratories. Hiring additional staff might ultimately help
reduce DNA backlogs, but there could be a limit on the number of staff crime laboratories can
hire given space constraints.
However, while Congress might have an interest in helping states resolve their backlogs of DNA
samples, there might be some concern that by relying on federal funding to support the operations
of state and local laboratories, state and local administrators would be unaware of laboratories’
true funding needs, which would prevent them from seeking permanent funding solutions. It
180
Matthew R. Durose, Kelly A. Walsh, and Andrea M. Burch, Census of Publicly Funded Forensic Crime
Laboratories, 2009, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, NCJ 238252,
Washington, DC, August 2012, p. 5, http://www.bjs.gov/content/pub/pdf/cpffcl09.pdf.
181
Ibid.
182
Ibid.
183
Evaluation of the Impact of the Forensic Casework DNA Backlog Reduction Program, p. 50.
184
Ibid.
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could be argued that states have contributed to the backlog problem by expanding DNA collection
statutes before increasing their capacity to process the samples they were already collecting. DNA
backlogs are not a static phenomenon; they will continue to increase or decrease depending on the
demand for DNA analysis and the ability of crime laboratories to conduct the requested analyses.
Therefore, the backlog cannot simply be eliminated by providing enough funding to state and
local crime laboratories to analyze the number of samples in their backlog for any given point in
time; the backlog will only be eliminated when capacity is adequate to meet demand. This means
that unless state and local governments make the required investment in crime laboratory
capacity, they will likely need continued federal funding to manage backlogs. Congress could
consider phasing-out funding for the program to provide states with an incentive to invest in
increasing and maintaining their capacity to conduct DNA analyses. Congress could also consider
amending the authorizing legislation Debbie Smith grants to make it a matching grant program.
Another option may be limiting the number of years states could receive funding under the
program so that states would have to consider revenue streams for permanently funding crime
laboratories.
Congress might consider whether to modify the Debbie Smith grant program so that a greater
proportion of the funding goes to reducing the forensic casework backlog. NIJ reports that
demand for grants to assist with reducing the backlog of convicted offender and arrestee samples
peaked in FY2007 and has decreased in subsequent fiscal years.185 As mentioned, currently not
less than 40% of the amount appropriated for the program is to be awarded for grants to conduct
analyses of forensic DNA samples for inclusion in the NDIS. Given that laboratories appear to be
better prepared to process offender and arrestee samples than they are to process forensic
casework samples, Congress might consider amending the authorizing statute for Debbie Smith
grants so that DOJ is required to award a greater proportion of annual funding for the program to
laboratories for reducing the backlog of forensic casework.
Congress could also consider providing additional funding to state and local laboratories for the
purchase or development and testing of new technology that will help automate more of the DNA
analysis process. Automating some of the more labor-intensive parts of DNA analysis, such as
DNA extraction or reviewing the results of the analysis, could help laboratories process more
samples in a shorter period of time, thereby reducing the backlog. While automation might help
reduce backlogs in the long run, it is unlikely that it would have an immediate effect on reducing
backlogs. It can take months to implement and validate new equipment, processes, and
procedures, and doing so takes personnel away from working on processing current casework.186
Another consideration might be whether to provide funding to help state and local law
enforcement to either hire additional investigators or offset the cost of paying overtime to current
investigators so they can investigate leads generated by DNA database matches. As discussed,
law enforcement agencies have identified funding for either additional staffing for cold case units
or paying overtime if the agency does not have a cold case unit as a primary need for DNArelated work. However, there could be a concern that state and local governments will come to
rely on federal funding for supporting cold case units rather than identifying permanent revenue
streams.
185
186
Making Sense of DNA Backlogs, 2010—Myths vs. Reality, p. 8.
Ibid., p. 49.
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Facilitating Partnerships Between Public and Private Laboratories
As discussed above, if a public laboratory outsources some casework to a private laboratory, the
public laboratory must review the work of the private laboratory before it is uploaded into the
NDIS, even though both public and private laboratories have to be accredited and audited in order
to conduct DNA analyses that will generate profiles for inclusion in the NDIS. In many instances,
public laboratories do not have additional analysts to review work outsourced to private
laboratories. Hence, the requirement that public laboratories check the work of DNA profiles
generated by private laboratories might discourage public-private partnerships.187 Also, in cases
where laboratories do not have adequate resources, analysts have to review DNA profiles
outsourced to private laboratories in addition to their regular casework, meaning that analysts are
paid overtime, which makes the cost of outsourcing the sample more expensive. Further, it takes
additional time for the work to be reviewed, resulting in a delayed uploading into the NDIS.188
One possible issue before Congress is whether to amend federal policy to facilitate partnerships
between public and private laboratories. Congress could consider amending current law so that
public laboratories do not have to review the work of private laboratories that are in compliance
with the QAS. This might facilitate more public-private partnerships since public laboratories
would be able to upload DNA profiles into the NDIS without having to review the private
laboratory’s work. One potential benefit to outsourcing more samples to private laboratories is
that private laboratories might be able to analyze samples at a lower cost than public laboratories.
In his testimony before the House Subcommittee on Crime, Terrorism, and Homeland Security,
Dr. Jeffery Boschwitz noted that the cost of analyzing DNA samples in private laboratories can be
up to 50% less than the cost of comparable analyses conducted by public laboratories.189 Dr.
Boschwitz notes that private laboratories can offer lower per case costs because private
laboratories can leverage economies of scale and they have invested in research and development
to lower costs in order to remain competitive.190 However, law enforcement agencies or
prosecutors would have to pay private laboratory analysts an expert testimony fee to testify in
court, a cost they do not have to bear when an analyst from a public laboratory testifies. This
could be a significant cost for local law enforcement agencies or prosecutors in light of the
Supreme Court’s ruling in Melendez-Diaz v. Massachusetts that defendants have a Sixth
Amendment right to cross-examine an analyst who conducts an analysis of forensic evidence
used in the case against the defendant.191 However, Dr. Boschwitz testified that, in his experience,
most defense attorneys do not ask for DNA testing-related testimony.192 He testified that analysts
in his laboratory are asked to testify, on average, in 2% of the cases they analyze, even after the
Melendez-Diaz decision.193 Nonetheless, it is not known whether other private laboratories
experiences with analysts being called to testify mirror those of Dr. Boschwitz’s laboratory or
whether trends will change in the future. Partnerships between public and private laboratories
could also provide public laboratories with a temporary increase in capacity when there is a
187
Dr. Boschwitz is a vice president and executive officer of Orchid Cellmark, Inc., “one of the largest worldwide
providers of human DNA testing.” Testimony of Dr. Boschwitz, p. 81.
188
Ibid.
189
Ibid., pp. 82-83.
190
Ibid., p. 83.
191
Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).
192
Testimony of Dr. Boschwitz, p. 83.
193
Ibid.
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unexpected increase in requests for DNA analysis.194 By outsourcing more work, public
laboratories could increase their capacity to a level where they would be able to handle the
regular demand for DNA analysis without having to develop a surplus capacity to handle
occasional increases in demand. This could promote more efficient public laboratories since they
would not need to hire additional staff or purchase additional equipment to prepare for instances
where there is increased demand for DNA analysis.
Some advocates of reducing DNA backlogs by having private laboratories conduct more DNA
analyses might propose allowing private laboratories to have direct access to CODIS. After all,
private laboratories are held to the same standard as public crime laboratories. This proposal
raises one of the key questions about any public-private partnership in criminal justice: are some
functions of the system inherently governmental? As discussed above, in some states laboratories
retain the DNA sample that is used to generate the databased profile. This is done so that samples
can be retested to confirm matches made using CODIS and to allow laboratories to retest samples
in case of any technological advancements. If private laboratories were allowed direct access to
CODIS, it might raise a question about whether it would be prudent for private laboratories to
retain DNA samples. Another consideration might be whether involving private laboratories in
investigating criminal offenses could decrease the efficiency of the investigation. When a match
is made between a forensic and offender profile, there are several additional steps that must take
place before charging the suspect with the crime. These steps include, but are not limited to,
•
obtaining the personal identification of the subject whose DNA profile matches
the forensic profile,
•
verifying whether the person is the correct sex and in the appropriate age range to
be the perpetrator,
•
confirming that the suspect was not in custody at the time of the offense and had
access to the crime scene when the offense occurred,
•
corroborating the match between the offender and forensic profiles after
collecting a new sample from the suspect, and
•
determining if other non-DNA evidence supports or refutes that the person could
be a viable suspect.195
While private laboratories would be able to verify the match between forensic and sample
profiles, it is likely that law enforcement would have to be involved with the other steps in
moving from a cold hit to a criminal charge. The coordination between the private laboratory and
law enforcement could be complicated if the private laboratory is in another city or even another
state. Policy makers might consider whether cold hits could be investigated more efficiently if the
analysis was done “in-house.”
There could be some concern that private laboratories might cut corners as a way to increase
profit margins, thereby resulting in flawed DNA profiles being included in the NDIS. While this
is a valid concern—after all, flawed DNA profiles could mean that a crime goes unsolved or that
the wrong person is convicted for the crime—thus far there has not been an evaluation of whether
194
Ibid., p. 84.
Ranajit Chakroborty and Jianye Ge, “Statistical Weight of a DNA Match in Cold-hit Cases,” Forensic Science
Communications, vol. 11, no. 3 (July 2009).
195
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private laboratories are more likely than public laboratories to make mistakes in their analysis.
Before deciding on whether to allow public laboratories to forego reviewing DNA profiles
generated by private laboratories, or granting private laboratories access to CODIS, Congress
could consider requiring an independent evaluation of whether private laboratories that are in
compliance with the conditions of the QAS make errors at a different rate than that of public
laboratories.
Annual Backlog Data
As discussed, there is a lack of comprehensive annual data on the size of the forensic casework
and offender and arrestee sample backlogs. The data collected by NIJ only provide an estimate of
the national forensic casework backlog. They do not include a state-by-state breakdown of the
backlog, nor do they estimate the nature of the backlog. Having reliable data on the size and
nature of the DNA backlog could provide policy makers with information about the efficacy of
existing policies, and it could assist policy makers if they choose to consider other policies for
reducing the backlog.
Policy makers might consider creating a system to collect annual DNA backlog data. Currently,
state and local governments that receive Debbie Smith grants are required to submit an annual
report to DOJ that contains a summary of the activities carried out using grant funds and any
other information DOJ might require;196 but state and local governments are not required to
submit data on backlogs, unless required by DOJ. If Congress chooses to consider legislation
related to this issue, it might consider requiring states to report data on the size of their forensic
casework and offender and arrestee (if applicable) sample backlogs as a condition of receiving
Debbie Smith grants. Congress could also consider reducing a state’s allocation under the Edward
Byrne Memorial Justice Assistance Grant (JAG) program (which provides assistance to state and
local law enforcement for a variety of purposes) if a state did not submit annual backlog data to
DOJ.197 One advantage of these methods is that it provides a financial incentive for states to
report backlog data. However, there might be a concern about making a state ineligible for
Debbie Smith grants or reducing a state’s allocation under the JAG program since funding under
both programs can be used to help reduce DNA backlogs.
Congress could consider requiring BJS to conduct an annual survey of publicly funded crime
laboratories to collect data on DNA backlogs. One advantage to this method is that it would not
make a state ineligible for funding that could be used for DNA analysis. On the other hand, it
would rely on states to voluntarily provide the data. There might be concern on the part of some
policy makers that states will not submit backlog data unless there is a reason for them to do so.
The concern is not unfounded because response rates to surveys can vary. However, surveys
conducted by BJS tend to have high response rates. For example, 97% of laboratories contacted
by BJS to participate in the 2009 Survey of Publicly Funded Forensic Crime Laboratories
responded to the survey.198
196
42 U.S.C. §14135(f).
For more information on the JAG program, see CRS Report RS22416, Edward Byrne Memorial Justice Assistance
Grant (JAG) Program, by Nathan James.
198
Matthew R. Durose, Kelly A. Walsh, and Andrea M. Burch, Census of Publicly Funded Forensic Crime
Laboratories, 2009, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, NCJ 238252,
Washington, DC, August 2012, p. 11, http://www.bjs.gov/content/pub/pdf/cpffcl09.pdf.
197
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If policy makers choose to establish a system for collecting data on DNA backlogs, they might
also consider the scope of the data collected. Would states only be required to submit a count of
the number of forensic casework samples in their backlog, or would they also be required to
provide a breakdown of the different types of forensic casework samples in their backlog, such as
the number of sexual assault evidence collection kits? Should states be required to provide data
on the amount of time it takes laboratories to complete the analysis of different types of samples?
Should states provide data on backlogged DNA samples for the state in total or should states be
required to submit data on backlogs at each local lab that provides DNA profiles to the SDIS?
Standardization of Sexual Assault Evidence Collection Kits
As discussed, the contents of a sexual assault evidence collection kit and the protocols governing
whether the kit is submitted to a crime laboratory for analysis can vary from jurisdiction to
jurisdiction, which could mean that the quantity and quality of evidence collected in a sexual
assault case and the probability that the evidence will be analyzed could depend in part on where
the sexual assault occurred. Policy makers might consider legislation that would provide for the
standardization of the contents of sexual assault evidence kits.
One issue before Congress is whether it wants to make adopting a standardized sexual assault
evidence collection kit a condition of receiving Debbie Smith grants. Another option involves
reducing a state or local government’s allocation under the JAG program if they choose not to use
the standardized kit. If Congress chooses to consider such legislation, one question before policy
makers might be whether to specify the exact contents of all sexual assault evidence collection
kits used in the United States, or whether to establish a minimum standard for kits and allow
jurisdictions to add additional elements if they choose. In their national protocol for sexual assault
medical examinations, the Office on Violence Against Women (OVW) provided guidelines for the
minimum content of sexual assault evidence collection kits. The guidelines state that, at a
minimum, sexual assault evidence collection kits should include
199
•
a kit container which has a label with blanks for identifying information and
documenting the chain of custody;
•
an instruction sheet or checklist to guide examiners in collecting evidence and
maintaining the chain of custody;
•
forms that facilitate evidence collection and analysis, including the patient’s
authorization for collection and release of evidence and information for law
enforcement, the patient’s medical history, and anatomical diagrams; and
•
materials for collecting and preserving evidence, according to jurisdictional
policy, including the patient’s clothing and underwear and foreign material
dislodged from clothing; foreign materials on the patient’s body (e.g., blood,
dried secretions, fibers, loose hairs, vegetation, soil/debris, fingernail scrapings
and/or cuttings, matted hair cuttings, material dislodged from mouth using dental
floss, and swabs of suspected semen, saliva, and/or areas highlighted by alternate
light sources); hair evidence; vaginal/cervical swabs and smears; penile swabs
and smears; anal/perianal swabs and smears; oral swabs and smears; body swabs;
and a sample of the patient’s DNA for comparison purposes.199
A National Protocol for Sexual Assault Medical Forensic Examinations, pp. 71-72.
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OVW noted it could be beneficial to develop a standardized kit for use across the country, but that
“[f]urther analysis is needed to assess the benefits and disadvantages of such a kit and the
feasibility of development and implementation. Some challenges could include building
consensus across communities regarding best practices and obtaining buy-in from involved
agencies.”200 CRS did not find any evaluations of the benefits and disadvantages of a standardized
sexual assault evidence collection kit and the feasibility of its development and implementation.
Before requiring states and local governments to adopt a standardized sexual assault evidence
collection kit as a condition of receiving funding under certain programs, Congress could
consider requiring OVW or another DOJ agency to evaluate the feasibility of a standardized
sexual assault evidence collection kit.
Federal Accreditation Standards
One issue policy makers might consider is whether there is a need for national accreditation
standards for forensic laboratories. Currently, nine states require forensic science laboratories in
the state to be accredited.201 However, even with the lack of state law requiring laboratories to be
accredited, most publicly funded laboratories are still seeking and maintaining accreditation. BJS,
in their 2009 census of publicly funded crime laboratories, found that 83% of crime laboratories
were accredited.202 In addition, as discussed above, all CODIS laboratories must be accredited
and audited annually and analysts at these laboratories are required to undergo semiannual
proficiency testing; however, these standards only apply to DNA analysis functions and not to any
other forensics analyses the crime laboratory might conduct (e.g., ballistics testing, fingerprint
analysis, or toxicology). While national accreditation standards would ensure that all laboratories
are held to the same standard and they might help prevent embarrassing incidents where faulty
procedures or downright deception has resulted in erroneous DNA analyses, accreditation can
only ensure that procedures and practices are in place that would reduce the likelihood of flawed
results; it cannot eliminate them. Even if a laboratory is accredited, it is still possible that human
error or malignant intentions would mean that the results of some DNA analyses are incorrect. It
is also possible that a private accrediting organization like ACSLD/LAB would be able to amend
its accreditation standards faster to reflect changes in technology or practice than a federal board
could, especially one that is charged with overseeing accreditation standards for all forensic crime
laboratories.
All laboratories that receive Debbie Smith grants are required to adhere to the FBI’s QAS, which
requires the laboratories to be audited annually to ensure that they adhere to the QAS and requires
analysts to undergo semiannual proficiency testing. Also, in order to receive funding under the
Paul Coverdell Forensic Sciences Improvement Grant program, any forensic science laboratory
system, medical examiner’s office, or coroner’s office (including any laboratory operated by a
unit of local government) receiving grant funding uses generally accepted laboratory practices
and procedures established by accrediting organizations or appropriate certifying bodies. It
appears that current law would prohibit unaccredited laboratories from receiving grants under
most currently funded grant programs. However, laboratories would not be prohibited from
200
Ibid., p. 72.
National Conference of State Legislatures, http://www.ncsl.org/research/civil-and-criminal-justice/dna-lawsdatabase.aspx.
202
Matthew R. Durose, Kelly A. Walsh, and Andrea M. Burch, Census of Publicly Funded Forensic Crime
Laboratories, 2009, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, NCJ 238252,
Washington, DC, August 2012, p. 7, http://www.bjs.gov/content/pub/pdf/cpffcl09.pdf.
201
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receiving funding under all grant programs (e.g., the Edward Byrne Memorial Justice Assistance
Grant program) under which they could possibly receive support. Instead of creating a new office
to promulgate and enforce national accreditation standards, Congress could consider amending
current law to require state and local governments to certify that any funding they receive under
any federal grant program for a forensic science laboratory has received and maintained
accreditation from a nonprofit professional organization of persons actively involved in forensic
science that is nationally recognized within the forensic science community; FY2014-enacted appropriations
were taken from the joint explanatory statement to accompany P.L. 113-76, printed in the January 15, 2014,
Congressional Record (pp. H507-H532); FY2015-enacted appropriations were taken from the joint explanatory
statement to accompany P.L. 113-235, printed in the December 12, 2014, Congressional Record (pp. H9342H9363).
Notes: Amounts under the DNA-Related and Forensic Programs and Activities might not sum to total due to
rounding.
a.
The FY2013 enacted amount includes a 1.877% rescission per section 3001 of P.L. 113-6 and a 0.2%
rescission ordered by the Office of Management and Budget per section 3004 of P.L. 113-6. The FY2013
enacted amount also includes the amount sequestered per the Budget Control Act of 2011(P.L. 112-25).
b.
Up to 4% of the funding for DNA analysis can be used for the purposes described under the DNA Training
and Education for Law Enforcement, Correctional Personnel, and Court Officers program.
Author Contact Information
Nathan James
Analyst in Crime Policy
njames@crs.loc.gov, 7-0264
Congressional Research Service
3823
FY2015