DNA Testing in Criminal Justice:
Background, Current Law, and Grants

Nathan James
Analyst in Crime Policy
February 2, 2015
Congressional Research Service
7-5700
www.crs.gov
R41800


DNA Testing in Criminal Justice: Background, Current Law, and 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.


Congressional Research Service

DNA Testing in Criminal Justice: Background, Current Law, and Grants

Contents
Introduction ...................................................................................................................................... 1
Background ...................................................................................................................................... 1
The National DNA Index System (NDIS) and the Combined DNA Index System
(CODIS) ................................................................................................................................. 2
DNA Profiles ............................................................................................................................. 3
DNA Backlog ............................................................................................................................ 6
Forensic Casework .............................................................................................................. 7
Convicted Offender and Arrestee Samples.......................................................................... 7
Evidence in the Possession of Law Enforcement ................................................................ 8
Sexual Assault Evidence Collection Kits ............................................................................ 8
Investigation of Leads Generated from Database Hits ............................................................ 10
Partial Match Searching .......................................................................................................... 10
Federal Law ................................................................................................................................... 12
Quality Assurance and Proficiency Testing Standards ............................................................ 12
Index to Facilitate Law Enforcement Exchange of DNA Identification Information ............. 13
Collection of DNA Samples from Certain Federal, District of Columbia, and Military
Offenders .............................................................................................................................. 14
Post-conviction DNA Testing .................................................................................................. 16
Preservation of Biological Evidence ....................................................................................... 18
Grants for DNA-Related Programs ................................................................................................ 19
Debbie Smith DNA Backlog Grant Program .......................................................................... 19
Kirk Bloodsworth Post-Conviction DNA Testing Grant Program .......................................... 21
Sexual Assault Forensic Exam Program Grants ...................................................................... 21
DNA Research and Development Grants ................................................................................ 21
DNA Training and Education for Law Enforcement, Correctional Personnel, and
Court Officers ....................................................................................................................... 22
Appropriations for DNA-Related Grant Programs .................................................................. 22

Tables
Table 1. Appropriations for Forensic Science Grant Programs ..................................................... 23

Contacts
Author Contact Information........................................................................................................... 23

Congressional Research Service

DNA Testing in Criminal Justice: Background, Current Law, and 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.
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.
This report provides an overview of how DNA is used to investigate crimes and help protect the
innocent.1 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
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.
Congressional Research Service
1

DNA Testing in Criminal Justice: Background, Current Law, 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.2 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.3 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.4 The NDIS contains the DNA profiles
provided by federal, state, and participating local crime laboratories.5 As of December 2014, there
are 194 laboratories in the United States participating in the NDIS.6
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.
3 John M. Butler, Fundamentals of Forensic DNA Typing (Burlington, MA: Academic Press, 2010), p. 265 (hereinafter,
Fundamentals of Forensic DNA Typing).
4 Ibid.
5 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-
ndis-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.
Congressional Research Service
2

DNA Testing in Criminal Justice: Background, Current Law, and Grants

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.9
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”).10 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.11 Also, matches can occur between DNA
profiles in the forensic index, thereby linking crime scenes to each other and identifying serial
offenders.12 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.13
DNA Profiles
DNA profiles entered into CODIS are based on 13 core short tandem repeat (STR) loci selected
by the FBI.14 Currently, the 13 STR loci used by the FBI are non-coding, meaning that they have
not 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.
9 CODIS FAQs.
10 Ibid.
11 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.
12 Ibid.
13 CODIS FAQs.
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.
Congressional Research Service
3

DNA Testing in Criminal Justice: Background, Current Law, and Grants

estimated to be one in several hundred billion.16 Two random Americans will, on average, share
two or three alleles.17
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).18 Laboratories submitting DNA
profiles to the NDIS must be accredited and audited annually.19 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.20 Laboratories that do not pass the annual audit can be prevented from
entering DNA profiles in CODIS.21 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.22 DNA analysts who do not pass their semiannual proficiency
tests are not allowed to enter profiles into CODIS.23 Laboratories are also required to conduct two
reviews of all DNA profiles before they are entered into CODIS.24
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.25 Public laboratories are required to conduct an initial site visit to each private laboratory it
contracts 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’”).
17 Ibid.
18 Fundamentals of Forensic DNA Typing, p. 270.
19 Ibid., p. 271.
20 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”).
21 Fundamentals of Forensic DNA Typing, p. 271.
22 Ibid.
23 Ibid.
24 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.
25 QAS, Standard 17.
26 CODIS FAQs.
27 QAS, Standard 17.
28 Ibid.
Congressional Research Service
4

DNA Testing in Criminal Justice: Background, Current Law, 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.29 However, most jurisdictions retain
the DNA sample used to generate the profile placed in CODIS.30 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.31 Privacy
advocates are concerned that stored DNA samples include a wealth of genetic information that
could be misused.32 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.33 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.34
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. Nearly 12.4 million new convicted offender and arrestee
profiles have been added to NDIS 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. 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 258,000 crimes.36
One limitation of 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.37 Database
hits do not always generate a new investigative lead; investigators, if they have already 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

29 Fundamentals of Forensic DNA Typing, p. 270.
30 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.
Congressional Research Service
5

DNA Testing in Criminal Justice: Background, Current Law, and Grants

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.41 Probative
hits led to judicial resolution (i.e., conviction, guilty plea, or parole revocation) 40% of the time.42
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.43
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.44 Not analyzing
or collecting DNA samples for minor offenses could prevent law enforcement from apprehending
offenders before they commit more serious crimes.
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.
39 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”).
45 Mark Nelson, Ruby Chase, and Lindsay DePalma, Making Sense of DNA Backlog, 2012s—Myths vs. Reality, U.S.
Department of Justice, Office of Justice Programs, National Institute of Justice, NCJ 243347, Washington, DC,
December 2013, p. 6.
Congressional Research Service
6

DNA Testing in Criminal Justice: Background, Current Law, 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.
Congressional Research Service
7

DNA Testing in Criminal Justice: Background, Current Law, and Grants

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.56 The researchers estimated that nearly 40% of unanalyzed
murder and rape cases contained DNA evidence.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.58
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.59 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.
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,60
there is currently no comprehensive count of the number of untested rape kits in law

53 Ibid., p. 4.
54 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.
Congressional Research Service
8

DNA Testing in Criminal Justice: Background, Current Law, and Grants

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.64 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.65 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.66 An exam involves collecting a complete medical history from the
victim and completing a full-body physical examination.67 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.68
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.69 In other jurisdictions, it may be months or even years before the
kit is tested, if at all.70 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

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-sexual-
assault.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.
64 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).
65 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.
66 What is a Rape Kit.
67 Ibid.
68 Ibid.
69 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.
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.
Congressional Research Service
9

DNA Testing in Criminal Justice: Background, Current Law, and Grants

evidence not included in the kit, or the victim chooses not to proceed with the case.71 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.72
Investigation of Leads Generated from Database Hits
While reducing casework backlogs can help generate new leads in cases without suspects (so-
called “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).73 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.74 However, less than half of law enforcement agencies with 379-
999 sworn officers reported having this unit, and less than 20% of agencies with 378 or fewer
sworn officers reported having such a unit.75 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.76 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.77 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.
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/law-
enforcement-sexual-assault.htm.
72 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.
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.
74 Ibid., p. 11.
75 Ibid.
76 Ibid., p. 10.
77 Ibid., p. 11.
78 Ibid., p. 14.
79 Fundamentals of Forensic DNA Typing, p. 275.
Congressional Research Service
10

DNA Testing in Criminal Justice: Background, Current Law, 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.80 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.81 Low stringency searches are sometimes required because a degraded sample
might not have alleles at all loci.82
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.83 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.84 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.85 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.86
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
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.
81 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.
83 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.
84 Natalie Ram, DNA Confidential: State Law Enforcement Policies for Genetic Databases Lack Transparency, Science
Progress, October 2009, p. 2.
85 Ibid., p. 1.
86 Ibid., p. 3.
87 Greely, Riordan, Garrison et al., “Family Ties,” p. 251.
88 Ibid., p. 252.
89 Ibid.
90 Ibid., p. 253.
Congressional Research Service
11

DNA Testing in Criminal Justice: Background, Current Law, and Grants

with at least one match at each of the 13 loci is about 1 in 2,000.91 While this probability is low,
there are over 12.4 million offender profiles in the NDIS, meaning that a low stringency search
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,92 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.93 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.”94 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
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.
92 Ellen Nakashima, “From DNA of Family, a Tool to Make Arrests,” The Washington Post, April 21, 2008.
93 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.
94 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”).
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).
Congressional Research Service
12

DNA Testing in Criminal Justice: Background, Current Law, and Grants

proficiency testing performance to determine whether a laboratory is performing acceptably.98
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.99
According to the FBI, the QAS describe the minimum standards for a laboratory’s quality
assurance program if performing forensic DNA analysis.100 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.101
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,102 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.103
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.
99 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
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.
Congressional Research Service
13

DNA Testing in Criminal Justice: Background, Current Law, and Grants

external audits, not less than once every other year, that demonstrate compliance
with the FBI’s QAS;104 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.105
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.106 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.107 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.108 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.109
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.
105 42 U.S.C. §14132(b).
106 42 U.S.C. §14132(d)(1)(A)(i).
107 42 U.S.C. §14132(d)(1)(A)(ii).
108 42 U.S.C. §14132(d)(2)(A)(i).
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...)
Congressional Research Service
14

DNA Testing in Criminal Justice: Background, Current Law, and Grants

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,112 or any attempt or conspiracy to commit any of these crimes.113 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.114 Collected samples are required to be submitted to the FBI for analysis
and their resulting DNA profiles are included in the NDIS.115
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.116 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.117 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.118 Collected samples must be
submitted to the FBI for analysis and their resulting DNA profiles are included in the NDIS.119
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.
112 As defined at 18 U.S.C. §16.
113 42 U.S.C. §14135a(a)(1)(B).
114 42 U.S.C. §14135a(a)(2).
115 42 U.S.C. §14135a(b).
116 42 U.S.C. §14135b(a)(1).
117 42 U.S.C. §14135b(a)(2).
118 42 U.S.C. §14135b(d).
119 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
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 §22-
3010.01); 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.
Congressional Research Service
15

DNA Testing in Criminal Justice: Background, Current Law, and Grants

conduct an analysis of the collected sample and submit the results to the FBI for inclusion in the
NDIS.122
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,123 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:
• 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.”
• 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.”

122 10 U.S.C. §1565(b).
123 18 U.S.C. §3600(a).
Congressional Research Service
16

DNA Testing in Criminal Justice: Background, Current Law, and Grants

• 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.124
If the court orders DNA testing, the testing is carried out by the FBI.125 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.”126 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.127
Test results relating to the DNA sample provided by the applicant are to be included in the
NDIS.128 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.”129
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.130
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).
125 18 U.S.C. §3600(c)(1).
126 18 U.S.C. §3600(c)(2).
127 18 U.S.C. §3600(c)(3).
128 18 U.S.C. §3600(e)(2).
129 18 U.S.C. §3600(e)(3)(A).
130 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).
Congressional Research Service
17

DNA Testing in Criminal Justice: Background, Current Law, 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;133
• 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.134
Under current law, if the applicant is convicted for making false assertions relating to post-
conviction 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.135
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.136 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.137
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).
134 18 U.S.C. §3600(f)(2).
135 18 U.S.C. §3600(f)(3).
136 18 U.S.C. §3600(g)(1).
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).
Congressional Research Service
18

DNA Testing in Criminal Justice: Background, Current Law, and Grants

• “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 post-
conviction 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
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.
Congressional Research Service
19

DNA Testing in Criminal Justice: Background, Current Law, and Grants

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.
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.
Congressional Research Service
20

DNA Testing in Criminal Justice: Background, Current Law, and Grants

Debbie Smith grants were originally authorized under the Justice for All Act of 2004 (P.L. 108-
405). This law amended the DNA Backlog Elimination Act of 2000,141 authorizing appropriations
of $151.0 million for each of FY2004-FY2009.142 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. 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 1.
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 1.
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 1.
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.
142 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.
Congressional Research Service
21

DNA Testing in Criminal Justice: Background, Current Law, 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. The
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 1, 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.”143 Starting
in FY2008, Congress continued to appropriate funding for DNA analysis and capacity
enhancement, including the purposes authorized by the Debbie Smith Grant program.144 The
language in the FY2008-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 purposes 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 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.
144 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. 113-235.
Congressional Research Service
22

DNA Testing in Criminal Justice: Background, Current Law, and Grants

Table 1. Appropriations for Forensic Science Grant Programs
Appropriations in millions of dollars

FY2006 FY2007 FY2008 FY2009 FY2010 FY2011 FY2012 FY2013a FY2014 FY2015
DNA-Related and
107.1 112.1 152.3 156.0 161.0 133.4 125.0 116.2 125.0 125.0
Forensic Programs and
Activities
DNA Analysis, Capacity
(103.2) (108.2) (147.4) (151.0) (151.0) (125.1) (117.0) (108.8b) (117.0b) (117.0b)
Enhancement, and
Debbie Smith Grants

Kirk Bloodsworth Post-
(3.9) (3.9) (4.9) (5.0) (5.0) (4.1)
(4.0) (3.7) (4.0) (4.0)
conviction DNA Testing
Sexual Assault Forensic
— — — (5.0) (4.1) (4.0) (3.7) (4.0) (4.0)
Exam
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; 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. H9342-
H9363).
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
23