The Use of DNA by the Criminal Justice System and the Federal Role: Background, Current Law, and Grants

May 2, 2011 – April 18, 2022 R41800

The Use of DNA by the Criminal Justice System April 18, 2022
and the Federal Role: Background, Current
Emily J. Hanson
Law, and Grants
Analyst in Social Policy

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 many sources, such as hair, bone, teeth, saliva, and blood. DNA samples can be collected at crime
scenes, from people who might have been present when the crime occurred, and from crime victims. The information
obtained from these samples is then compared with other DNA profiles to both eliminate and identify suspects in a criminal
investigation.
In the 1980s, states began enacting laws that required the collection of DNA samples from offenders convicted of certain
sexual and other violent crimes. The samples are analyzed and their profiles are entered into state databases. In the late 1980s,
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. In 1994, federal law (34
U.S.C §12592(a)) authorized the FBI to operate and maintain a national DNA database for DNA profiles collected from
people under applicable legal authority and samples collected at crime scenes. In 1998, the FBI launched the National DNA
Index System (NDIS).
Statutory provisions authorize the collection of DNA samples from certain arrestees and convicted federal offenders, District
of Columbia offenders, and military convicted offenders. State laws dictate which convicted offenders, and in some states
arrestees, 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 and the mandatory collection of DNA from arrestees and
convicted offenders has resulted in increased demand for DNA analysis, which has resulted in a backlog of casework. In
addition to solving crimes, DNA analysis can also help exonerate people accused or convicted of 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. Other grant programs
provide funding for related purposes, such as offsetting the cost of providing post-conviction DNA testing.
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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 many sources, such as hair, bone, teeth, saliva, and blood. Because
there is DNA in most cells in the human body, even a minuscule amount of bodily fluid or tissue
can yield useful information. Obtaining a DNA sample is not complicated; it can be as simple as a
swab of the inside of the mouth to obtain cheek cells and white blood cells in saliva.
State and federal DNA databases have proved instrumental in solving crimes, reducing the risk of
wrongful convictions, and establishing the innocence of those who were wrongly convicted. DNA
evidence is used to solve crimes in two ways:
 If 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 or
she committed the crime.
 If a suspect is not known, biological evidence from the crime scene can be
analyzed and compared to offender profiles in existing DNA databases to assist
in identifying a suspect. 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 exonerate
innocent people of crimes they did not commit.1 It also reviews current law related to 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, providing post-
conviction DNA testing, and promoting new technology in the field.
Background
Federal law authorizes the Federal Bureau of Investigation (FBI) to operate and maintain a
national database of DNA profiles collected from people under applicable legal authority and
samples of biological evidence collected at crime scenes. Statutory provisions authorize the
federal government to collect DNA samples and enter profiles from certain convicted federal
offenders and arrestees, District of Columbia offenders, and military offenders. State law dictates
which arrestees and convicted offenders 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. This means that there may be arrestees and convicted offenders whose DNA
qualifies for inclusion in a state database but will not qualify for inclusion in the national
database. The intended purpose of the national DNA database is to compare offender profiles to

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.
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crime scene samples in a central repository of DNA profiles to generate leads in criminal
investigations.
Increased awareness of the power of DNA testing to solve crimes and the mandatory collection of
samples from arrestees and convicted offenders has led to increased demand for DNA analysis
and casework backlogs. In addition to solving crimes, DNA analysis can also help exonerate
people convicted of crimes they did not commit.
A Brief Primer on DNA
DNA is contained within the nucleus of most cells in the human body.2 A cell’s nucleus contains 23 pairs of
chromosomes (46 total) and each chromosome contains long strands of DNA.3 Genes are specific segments of
these DNA strands.4 Different genes are comprised of different lengths of DNA. A gene’s locus is the location of
the particular section of DNA that makes up a given gene. Genes, or groups of genes, provide the code for
inherited traits such as eye color. There are different variations of any given gene (e.g., genes for blue eyes or
brown eyes), and these variants are called alleles. The ful set of DNA for any given person is their genome.
Genes can be broken down into coding and non-coding genes.5 Coding genes make up a little more than 1% of the
human genome, and these contain DNA which codes for proteins that are eventually assembled into cells, tissues,
and organs.6 Non-coding genes comprise the remainder of the human genome and handle vital functions such as
regulating gene activity.7 Currently, the FBI col ects 20 loci for non-coding genes; each locus contains one or two
alleles, and thus an FBI DNA profile could include up to 40 alleles.8
The National DNA Index System (NDIS) and the Combined DNA
Index System (CODIS)
In the 1980s, states began enacting laws that required the collection of DNA samples from
offenders convicted of certain sexual offenses and other violent crimes. The samples were then
analyzed and their profiles entered into state databases to identify suspects in criminal
investigations. In the late 1980s, 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 working group proposed guidelines that are the basis for the current national
Quality Assurance Standards (QAS) and urged the creation of a national DNA database.9 In 1994,
Congress authorized the FBI to establish and oversee the National DNA Index System (NDIS).10

2 U.S. Department of Health and Human Services, U.S. National Library of Medicine, “What is DNA?”
https://medlineplus.gov/genetics/understanding/basics/dna/#:~:text=
DNA%20bases%20pair%20up%20with,spiral%20called%20a%20double%20helix.
3 U.S. Department of Health and Human Services, U.S. National Library of Medicine, “How Many Chromosomes do
People Have?”, https://medlineplus.gov/genetics/understanding/basics/howmanychromosomes/.
4 U.S. Department of Health and Human Services, U.S. National Library of Medicine, “What is a Gene?”,
https://medlineplus.gov/genetics/understanding/basics/gene/.
5 U.S. Department of Health and Human Services, U.S. National Library of Medicine, “What is Noncoding DNA?”,
https://medlineplus.gov/genetics/understanding/basics/noncodingdna/ (hereinafter, “What is Noncoding DNA?”).
6 What is Noncoding DNA?
7 What is Noncoding DNA?
8 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.
9 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.
10 Index to Facilitate Law Enforcement Exchange of DNA Identification Information, P.L. 103-322, Title XXI (C).
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When the NDIS launched in 1998, nine states participated.11 Currently, laboratories in all 50
states, the District of Columbia, the DC/FBI, Puerto Rico, and the U.S. Army Criminal
Investigation Laboratory participate in the NDIS.12
DNA profiles generated by laboratories operated by local law enforcement agencies are stored in
Local DNA Index Systems (LDISs). DNA profiles generated by state laboratories, along with
authorized profiles stored in participating LDISs, are uploaded into State DNA Index Systems
(SDISs). Each state has its own laws specifying which profiles can be included in their SDIS.13
DNA profiles generated by federal laboratories, along with authorized DNA profiles in
participating SDISs, are uploaded into the NDIS.14 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 SDISs allow each state to compare DNA profiles stored at the state
level. Laboratories upload qualifying DNA profiles into an LDIS, an SDIS, or the NDIS and then
compare DNA profiles using the Combined DNA Index System (CODIS) software produced and
distributed by the FBI.15
CODIS can conduct searches to generate investigative leads in the NDIS across three indexes:
convicted offenders, arrestee, and forensic. The convicted offender index contains DNA profiles
developed from samples collected from convicted offenders; the arrestee index contains DNA
profiles developed from samples collected as a result of an arrest; and the forensic index contains
DNA profiles developed from samples of biological evidence (e.g., blood, semen, or saliva)
collected at crime scenes or from crime victims.16 As of October 2021, more than 200 labs
participated in the NDIS nationwide and the database included nearly 15 million offender
profiles, more than 4 million arrestee profiles, and more than 1 million forensic profiles.17 CODIS
searches across these indexes for potential matches (also referred to as “hits”).18 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.19 Also, matches can occur
between DNA profiles in the forensic index, thereby linking crime scenes to each other and
identifying serial offenders.20 Matches between multiple samples in the forensic index can allow

11 John M. Butler, Fundamentals of Forensic DNA Typing (Burlington, MA: Academic Press, 2010), p. 265
(hereinafter, “Fundamentals of Forensic DNA Typing”).
12 Information on the number of participant laboratories and the number of profiles they have uploaded into the NDIS
can be found on the FBI’s website at https://www.fbi.gov/services/laboratory/biometric-analysis/codis/ndis-statistics.
13 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.
14 U.S. Department of Justice, Federal Bureau of Investigation, CODIS—NDIS Statistics, https://www.fbi.gov/services/
laboratory/biometric-analysis/codis/ndis-statistics, (hereinafter, “CODIS-NDIS Statistics”).
15 U.S. Department of Justice, Federal Bureau of Investigation, Frequently Asked Questions on CODIs and NDIS,
https://www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet, (hereinafter, “CODIS
FAQs”).
16 National Institute of Justice, DNA Evidence Basics: Types of Samples Suitable for DNA Testing, https://nij.ojp.gov/
topics/articles/dna-evidence-basics-types-samples-suitable-dna-testing#:~:text=
Questioned%20or%20unknown%20samples%20collected,vaginal%2Fcervical%20samples%20collected%20on.
17 CODIS-NDIS Statistics
18 CODIS FAQs.
19 CODIS FAQs. 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.
20 CODIS FAQs.
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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.21
DNA Profiles
DNA profiles entered into CODIS are based on 20 core short tandem repeat (STR) loci selected
by the FBI’s CODIS Core Loci Working Group.22 In 2017, the number of required loci was
increased from 13 to 20 to enhance discriminatory power, facilitate international cooperation via
the collection of more common loci, and aid in missing person investigations.23 The 20 STR loci
used by the FBI are non-coding, meaning that they are not associated with human attributes such
as height, eye or skin color, or susceptibility to a particular disease.24 Each locus has one or two
alleles, and it is these 20 pairs of alleles that are compared to match samples in the forensic index
with profiles in either the offender or arrestee indexes. The 20 core loci chosen by the FBI
provide a high level of discriminatory power. Two random Americans will, on average, share two
or three alleles.25 The probability that two unrelated individuals will share the original 13 pairs of
alleles is estimated to be one in several hundred billion.26 The new standard of 20 loci is expected
to improve discriminatory power by eight orders of magnitude.27
It is important to ensure the quality of the DNA profiles entered into the NDIS. 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 QAS
(see “Quality Assurance and Proficiency Testing Standards”).28 Laboratories submitting DNA
profiles to the NDIS must be accredited and audited annually.29 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.30 Laboratories that do not pass the annual audit can be prevented from
entering DNA profiles in CODIS.31 Currently, the following groups are approved to conduct
audits: the American Association for Laboratory Accreditation (A2LA) and the American

21 CODIS FAQs. Beyond the DNA profile, the NDIS does include an agency identifier, specimen identification
number, and the DNA laboratory personnel associated with a DNA profile analysis.
22 U.S. Department of Justice, Federal Bureau of Investigation, Combined DNA Index System, https://www.fbi.gov/
services/laboratory/biometric-analysis/codis, (hereinafter “Combined DNA Index System”).
23 Combined DNA Index System.
24 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.
25 Henry T. Greely 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 et al., ‘Family Ties’”).
26 Greely et al., ‘Family Ties’.
27 Becky Hill and Margaret Kline, “The Impact and Benefit of Expanding the U.S. Core Autosomal STR Markers,”
presentation at the American Academy of Forensic Sciences, Washington, DC, February 2013, https://strbase.nist.gov/
pub_pres/AAFS2013-Hill-expanding-core.pdf.
28 CODIS FAQs.
29 U.S. Department of Justice, Federal Bureau of Investigation, Quality Assurance Standards for DNA Databasing
Laboratories, Standards 15 and 17, https://www.fbi.gov/file-repository/quality-assurance-standards-for-forensic-dna-
testing-laboratories.pdf/view/ (hereinafter, “QAS”).
30 QAS, Standard 15.
31 Fundamentals of Forensic DNA Typing, p. 271.
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National Standards Institute-American Society for Quality (ANSI-ASQ) National Accreditation
Board (ANAB).32 In addition, DNA analysts must undergo semiannual proficiency testing.33 DNA
analysts who do not pass their semiannual proficiency tests are not to be allowed to enter profiles
into CODIS.34 Laboratories are also required to conduct two reviews of all DNA profiles before
they are entered into CODIS.35
Currently, as prescribed by federal law (see “Quality Assurance and Proficiency Testing
Standards”), only public laboratories that meet the QAS can submit DNA profiles to the NDIS.
However, public laboratories are allowed to outsource casework to private laboratories and,
provided certain standards are met, upload those analyses (i.e., profiles) to the NDIS. All private
laboratories that conduct DNA testing for public laboratories must also be accredited, be audited
annually, and adhere to the requirements of the QAS.36 Public laboratories are required to conduct
an initial site visit to each private laboratory they contract with to conduct DNA analyses.37 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.38 Public laboratories are also required to review all
outsourced DNA profiles generated by private laboratories.39 The review by the public laboratory
is in addition to the two reviews private laboratories are required to conduct per the QAS.
An offender profile in a DNA database consists of up to 40 numbers representing the data for the
two alleles at the 20 STR loci, an agency identification number, a sample identification number,
and an identifier for the analyst that entered the information.40 Most jurisdictions retain the DNA
sample used to generate the profile placed in CODIS.41 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.42
Privacy advocates are concerned that stored DNA samples include a wealth of genetic
information that could be misused.43 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.44 Under current federal law,
anyone who improperly discloses genetic information or misuses a DNA sample collected under

32 CODIS FAQs. Note that the American Society of Crime Laboratory Directors/Laboratory Accreditation Board
(ASCLD/LAB) and Forensic Quality Services (FQS), although approved as distinct accrediting agencies, are now both
under ANAB.
33 QAS, Standard 13.
34 Fundamentals of Forensic DNA Typing, p. 271.
35 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.
36 QAS, Standard 17.
37 QAS, Standard 17.
38 QAS, Standard 17.
39 QAS, Standard 17.
40 Fundamentals of Forensic DNA Typing, p. 270.
41 Fundamentals of Forensic DNA Typing, p. 262.
42 Fundamentals of Forensic DNA Typing, p. 262.
43 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, “Dangerous
Excursions”).
44 Dangerous Excursions, p. 392.
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federal authority is subject to a fine of up to $250,000, or imprisonment for up to one year.45
There are also policies that mandate DNA expungement (i.e., the destruction of DNA samples and
removal of profiles from DNA databases) in certain cases (see “Inclusion and Expungement of
DNA Profiles in the NDIS”).
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 in the NDIS. States have also amended their DNA collection laws to reflect this
expanded authority. Approximately 18.9 million convicted offender and arrestee profiles have
been added to the NDIS since 2000.46 In addition, 1,122,630 forensic profiles have been included
in NDIS since 2000. As of October 2021, hits generated by CODIS searches have aided in the
more than 574,343 investigations.47
Rapid DNA Analysis
Rapid DNA machines are portable instruments that allow law enforcement officials to collect and
analyze DNA samples in approximately 90 minutes with minimal training, and outside of a
laboratory when necessary. The Rapid DNA Act of 2017 (Rapid DNA Act, P.L. 115-50)
authorized the FBI to “issue standards and procedures for the use of Rapid DNA instruments and
resulting DNA analyses.”
Rapid DNA analysis is only recommended for generating DNA profiles of known persons
collected from buccal (i.e., cheek) swabs, either to upload to CODIS to search for matches to
crime scene or victim evidence (hits) or to use in support of law enforcement investigations of
relationships between known persons. According to the FBI, 85-90% percent of the time Rapid
DNA machines produce full CODIS eligible DNA profiles from buccal swabs.48 As of April 2022,
two Rapid DNA Systems are “approved for NDIS use by an accredited forensic DNA laboratory
for eligible reference mouth swabs”.49 These two systems are the ANDE 6C Series G and Applied
Biosystems™ RapidHIT™ ID.50
In 2019, the FBI began pilot programs with select law enforcement agencies to allow DNA
profiles collected from arrestees during the booking process and analyzed with Rapid DNA
machines to be uploaded and used in searches of the NDIS and CODIS. As of April 2022, the FBI
has approved two Rapid DNA booking station devices for use in NDIS: the ANDE 6C Series G
and RapidHIT ID DNA Booking System v1.0 and v1.1.51

45 34 U.S.C. §40706(c).
46 The FBI reports data on the number of offender, arrestee, and forensic profiles in the NDIS in 2000 at
https://www.fbi.gov/file-repository/combined-dna-index-system-codis-brochure.pdf/view. The most recent data on the
number of offender, arrestee, and forensics profiles in the NDIS can be found at https://www.fbi.gov/services/
laboratory/biometric-analysis/codis/ndis-statistics. The figures on the number of profiles added since 2000 are based on
the reported number of offender, arrestee, and forensic profiles in the NDIS as of October 2021.
47 CODIS-NDIS Statistics.
48 U.S. Department of Justice, Federal Bureau of Investigation, “Guide to All Things Rapid DNA,” January 2022,
https://www.fbi.gov/file-repository/rapid-dna-guide-january-2022.pdf/view (hereinafter, “Guide to All Things Rapid
DNA”). In the cases when a CODIS-eligible DNA profile is not generated, the FBI guide states that “a second sample
must be attempted or submitted to the laboratory for analysis,” p. 12.
49 U.S. Department of Justice, Federal Bureau of Investigation, “Rapid DNA,” https://www.fbi.gov/services/laboratory/
biometric-analysis/codis/rapid-dna (hereinafter, “FBI Rapid DNA”).
50 FBI Rapid DNA.
51 FBI Rapid DNA.
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The FBI has not authorized Rapid DNA instruments for use in processing crime scene DNA
evidence for uploading to or searching in CODIS or NDIS.52 One of the primary reasons for this
is that Rapid DNA machines destroy, or consume, the evidence they analyze.53 As a result, a
crime scene sample analyzed by a Rapid DNA instrument cannot be retested. Crime scene
samples are also often much more complex than DNA samples obtained via buccal swabs.54
Crime scene samples can be damaged or degraded and may contain mixed genetic material that
cannot be distinguished by Rapid DNA machines. The use of Rapid DNA analysis on these more
complex crime scene samples may thus lead to inconclusive or incorrect DNA analysis that a
forensic lab may not be able to rectify because the sample is destroyed. However, reporting
indicates that some state and local law enforcement agencies have used Rapid DNA instruments
to analyze crime scene samples and to compare profiles in SDIS and LDIS systems.55 Although
the FBI limits the use of Rapid DNA-generated profiles in CODIS and NDIS, state and local law
governs how these machines may be used in SDISs and LDISs databases.
DNA Backlog
One consequence of the expansion of the collection and use of DNA in criminal investigations
has been an increased burden on crime laboratories that can lead to a backlog of untested DNA
samples. Delays in processing DNA evidence can impede efforts to apprehend and prosecute
alleged offenders and exonerate wrongfully convicted individuals. Persistent backlogs can also
result in crime laboratories prioritizing DNA analysis for violent offenses, such as homicide or
sexual assault, over other offenses, such as property crimes, or in law enforcement agencies
establishing policies stating that biological evidence is not to be collected for minor offenses.56
Backlogs are best considered in the context of each crime laboratory’s capacity, size, and
workload.57 For example, if there are two laboratories and the first laboratory has a backlog of
casework that is three times the size of the 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
Although there is no complete nationwide account of unsubmitted DNA evidence currently in the
possession of law enforcement, there are several resources that shed light on the backlog.58 A

52 Guide to All Things Rapid DNA.
53 U.S. Department of Justice, Federal Bureau of Investigations, Scientific Working Group on DNA Analysis Methods
(SWGDAM), “SWGDAM Position Statement on Rapid DNA Analysis,” https://www.swgdam.org/_files/ugd/
4344b0_f84df0465a2243218757fac1a1ccffea.pdf.
54 Guide to All Things Rapid DNA.
55 Heather Murphy, “Coming Soon to a Police Station Near You: The DNA ‘Magic Box’”, New York Times, January
21, 2019, https://www.nytimes.com/2019/01/21/science/dna-crime-gene-technology.html; Maura Dolan, “‘Rapid
DNA’ promises breakthroughs in solving crimes. So why does it face a backlash?”, Los Angeles Times, September 25,
2019, https://www.latimes.com/california/story/2019-09-24/rapid-dna-forensics-crime-police.
56 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”).
57 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.
58 U.S. Government Accountability Office, DNA Evidence DOJ Should Improve Performance Measurement and
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report on federal grants that address the DNA backlog determined that in states and units of local
government that were awarded DNA Capacity Enhancement and Backlog Reduction (CEBR)
grants between 2011 and 2017, the total requests for DNA analysis increased from about 250,000
to 300,000, or about 20%.59 Across the same period, crime labs also completed more DNA
analysis requests, increasing from just over 200,000 completed to more than 250,000.60 However,
the backlog for crime scene DNA analysis had increased from 91,000 requests to about 169,000,
or 85%.61
Another source of information on the DNA backlog is the Bureau of Justice Statistic’s (BJS’s)
Census of Publicly Funded Forensic Crime Laboratories (CPFCL).62 BJS compared data from the
2014 and 2009 census collections to show how requests for DNA analysis have changed. In 2009,
BJS reported an estimated 103,500 backlogged forensic casework analyses, which increased in
2014 to an estimated 107,800 backlogged analyses.63 However, the estimated increase in
backlogged forensic casework analyses was not statistically significant. BJS data demonstrated
that public crime laboratories completed more forensic casework samples in 2014 than in 2009.
In 2014, public crime laboratories completed an estimated 296,000 requests for forensic casework
analysis, up from an estimated 239,000 in 2009.64 While crime laboratories were able to process
more cases, the requests received for forensics casework analysis increased from an estimated
260,000 in 2009 to an estimated 333,000 in 2014.65 In both cases (i.e., completed and received
requests), the differences between the data for 2009 and 2014 were statistically significant.
Convicted Offender and Arrestee Samples
Data from BJS show that there was a statistically significant decrease in the backlog of requests
for analysis of convicted offender and arrestee samples. The backlog of these samples decreased
from 502,500 in 2009 to 64,800 in 2014.66 Public crime laboratories processed an estimated
1,027,000 convicted offender and arrestee samples in 2009 and an estimated 904,000 samples in
2014, but the difference in processed samples is not statistically significant.67 However, there was
a statistically significant decrease in requests for analysis of convicted offender and arrestee
samples (1,053,000 requests were received in 2009 compared to 908,000 in 2014).68 This

Properly Design Controls for Nationwide Grant Program, GAO-19-216, March 2019, p. 23 (hereinafter, “DNA
Evidence”).
59 DNA Evidence, p. 18.
60 DNA Evidence, p. 18.
61 DNA Evidence, p. 17.
62 Matthew R. Durose et al., Publicly Funded Forensic Crime Laboratories: Resources and Services, 2014, U.S.
Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, NCJ 250151, Washington, DC,
November 2016 (hereinafter, “Publicly Funded Forensic Crime Laboratories”).
63 Publicly Funded Forensic Crime Laboratories, Table 6. A request for analysis was considered to be backlogged if it
was not examined and reported to the submitting agency within 30 days.
64 Publicly Funded Forensic Crime Laboratories, Table 4.
65 Publicly Funded Forensic Crime Laboratories, Table 4.
66 Publicly Funded Forensic Crime Laboratories, Table 6.
67 Publicly Funded Forensic Crime Laboratories, Table 4. The difference between two estimated figures is considered
to be statistically significant if the 95% confidence interval for the difference between the two figures does not contain
zero. The confidence interval for the difference between two figures is equal to the difference plus and minus the
pooled standard error (SE) multiplied by 1.96 (i.e., difference ± 1.96 * SE). BJS provides standard errors for the
estimated figures in their report in the report’s appendix.
68 Publicly Funded Forensic Crime Laboratories, Table 4.
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decrease in requests may reflect the fact that arrests nationally declined by 20% between 2009
and 2014.69
Sexual Assault Kits (SAKs)
In recent years, increased attention has been paid to DNA backlogs in cases involving sexual
assault (often referred to as the rape kit backlog).70 According to the National Institute of Justice
(NIJ), sexual assault kits are typically considered backlogged if they have been submitted to a
crime laboratory but remain untested after 30 days.71 A 2018 study estimated that 200,000 sexual
assault kits remain untested in the custody of police departments.72 The results from four studies
funded by the NIJ indicated that 25%-50% of tested sexual assault kits generated CODIS-eligible
DNA profiles and 50%-60% of those CODIS profiles resulted in a hit.73
Federal Law
Although state law dictates which 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 state databases 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 laws pertaining to how DNA
is used in a criminal justice capacity.
Quality Assurance and Proficiency Testing Standards
Under current law,74 the FBI is required to issue (and “revise from time to time”) the QAS,
including standards for testing the proficiency of forensic laboratories and forensic analysts in
conducting DNA analyses.75 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.76 The Rapid DNA Act (P.L. 115-50) also requires the FBI to issue standards and
procedures for the use of Rapid DNA instruments and the resulting analyses. The QAS must
include a system for grading proficiency testing performance to determine whether a laboratory is
performing acceptably.77 Under current law, FBI personnel who perform DNA analyses must

69 Department of Justice, Federal Bureau of Investigation, Crime Data Explorer, https://crime-data-
explorer.fr.cloud.gov/explorer/national/united-states/arrest.
70 Gillian M. Pinchevsky, “Criminal Justice Considerations for Unsubmitted and Untested Sexual Assault Kits: A
Review of the Literature and Suggestions for Moving Forward,” Criminal Justice Policy Review, vol. 29, no. 9 (2018).
71 National Institute of Justice, Sexual Assault Kits: Using Science to Find Solutions, https://www.nij.gov/unsubmitted-
kits/.
72 Rebecca Campbell et al., “Tested at Last: How DNA Evidence in Untested Rape Kits Can Identify Offenders and
Serial Sexual Assaults ,” Journal of Interpersonal Violence, vol. 33, no. 24 (2018).
73 Gillian M. Pinchevsky, “Criminal Justice Considerations for Unsubmitted and Untested Sexual Assault Kits: A
Review of the Literature and Suggestions for Moving Forward,” Criminal Justice Policy Review, vol. 29, no. 9 (2018).
74 34 U.S.C. §12591(a)(2).
75 The most recent QAS took effect on July 1, 2020.
76 34 U.S.C. §12591(a)(3).
77 34 U.S.C. §12591(a)(3).
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undergo semiannual external proficiency testing by a DNA proficiency testing program that meets
the standards set in the QAS.78
According to the FBI, the QAS also describes the minimum standards for a laboratory engaged in
forensic DNA analysis and/or databasing.79 The QAS includes minimum laboratory standards for
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.80
Inclusion and Expungement of DNA Profiles in the NDIS
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,81 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 (i.e., to
exclude someone as a suspect);
 recovered from crime scenes;
 recovered from unidentified human remains; and
 voluntarily contributed from relatives of missing persons.82
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
external audits, not less than once every other year, that demonstrate compliance
with the FBI’s QAS;83

78 34 U.S.C. §12593(a)(1)(A).
79 CODIS FAQs.
80 CODIS FAQs.
81 34 U.S.C. §12592(a).
82 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.
83 According to the FBI, American Association for Laboratory Accreditation (A2LA), and ANSI-ASQ National
Accreditation Board (ANAB: The American Society of Crime Laboratory Directors/Laboratory Accreditation Board
(ASCLD/LAB) and Forensic Quality Services (FQS), approved separately as accrediting agencies are now part of
ANAB) are recognized as accrediting agencies. See CODIS FAQs.
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 that are prepared by accredited crime laboratories using rapid DNA instruments
approved by the FBI in compliance with FBI published standards and procedures
per the Rapid DNA Act84; 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.85
Under current law, the FBI is required to expunge the 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.86 Also, the FBI is required to expunge the 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.87 Under current law, DOD is required to expunge the 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.88 In each case, it is the individual whose DNA
profile has been submitted to the NDIS who is responsible for seeking a DNA expungement.
As a condition of having access to the NDIS, states must also have a procedure to expunge a
DNA profile from the state’s database based on the same conditions applicable to a profile being
expunged from the NDIS.89 As with the federal government, many states place the responsibility
for pursuing DNA expungement on the people whose DNA profiles have been submitted to an
SDIS.90 Thus, people who are eligible for expungement are required to know that expungements
are possible (many states do not require that arrestees be notified of this possibility), correctly
identify their own eligibility, and both pay for and complete all administrative steps (often
including an expungement hearing).91 DNA expungement is relatively rare. In a sample of four
states that place the responsibility for pursuing DNA expungement on the arrestee, less than 1%
of eligible samples were expunged.92 However, there are states (e.g., Connecticut, Maryland,
North Carolina, Tennessee, Texas, and Utah) that have automatic DNA expungement policies that
require the state to initiate expungement proceedings.93

84 As of the cover date of this report, the FBI does not allow rapid DNA profiles in the NDIS.
85 34 U.S.C. §12592(b).
86 34 U.S.C. §12592(d)(1)(A)(i).
87 34 U.S.C. §12592(d)(1)(A)(ii).
88 10 U.S.C. §1565(e).
89 34 U.S.C. §12592(d)(2)(A).
90 National Conference of State Legislatures, DNA Arrestee Laws, http://www.ncsl.org/Documents/cj/
ArresteeDNALaws.pdf (hereinafter, “DNA Arrestee Laws”).
91 Elizabeth E. Joh, “The Myth of Arrestee DNA Expungement,” University of Pennsylvania Law Review Online, vol.
164, (2015), p. 51 (hereinafter, “The Myth of Arrestee DNA Expungement”).
92 The Myth of Arrestee DNA Expungement, p. 57.
93 DNA Arrestee Laws.
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Collection of DNA Samples from Certain Federal, District of
Columbia, and Military Offenders
Under current law,94 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.”95 In addition, the Bureau of Prisons (BOP)
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,96 or any attempt or conspiracy to commit any of these crimes.97 Federal probation
officers 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.98 Collected samples are required to be submitted to the FBI for analysis
and the resulting DNA profiles are included in the NDIS.99 The Rapid DNA Act allows the FBI to
waive the requirement that DNA samples be submitted to the FBI for analysis if the analysis is
conducted with a rapid DNA instrument and the results are included in the NDIS.
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.100 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.101 The government of the District of
Columbia may determine which offenses under the District of Columbia Code are considered
qualifying offenses to require a DNA sample.102 Collected samples must be submitted to the FBI
for analysis and their resulting DNA profiles are included in the NDIS.103 The Rapid DNA Act

94 34 U.S.C. §40702(a)(1)(A).
95 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
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.
96 As defined at 18 U.S.C. §16.
97 34 U.S.C. §40702(a)(1)(B).
98 34 U.S.C. §40702(a)(2).
99 34 U.S.C. §40702(b).
100 34 U.S.C. §40703(a)(1).
101 34 U.S.C. §40703(a)(2).
102 34 U.S.C. §40703(d).
103 34 U.S.C. §40703(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
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also allows the FBI to waive the requirement that DNA samples be submitted to the FBI for
analysis if the analysis is conducted with a rapid DNA instrument and the results are included in
the NDIS.
Under current law,104 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.105 DOD is required to conduct an
analysis of the collected sample and submit the results to the FBI for inclusion in the NDIS.106
Post-conviction DNA Testing
The Justice for All Act of 2004 (Justice for All Act, P.L. 108-405) established procedures for post-
conviction DNA testing in federal courts. Under current law,107 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 fail to request DNA testing of that evidence in a
prior motion for postconviction DNA testing”; or (2) “was previously subjected
to DNA testing and the applicant is requesting DNA testing using a new method
or technology that is substantially more probative than 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.

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.
104 10 U.S.C. §1565(a)(1).
105 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.
106 10 U.S.C. §1565(b).
107 18 U.S.C. §3600(a).
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 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.”
 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.108
If the court orders DNA testing, the testing is carried out by the FBI.109 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.”110 The cost of any DNA testing is borne by the applicant unless the applicant is
indigent; in that case, the cost of DNA testing is borne by the government.111
The results of any post-conviction DNA test must be simultaneously provided to the court,
applicant, and U.S. Attorney’s office.112 If the DNA test excludes the applicant as the source of
the biological evidence, the DNA profile is required to be run through CODIS, assuming that the
analysis was conducted in a manner consistent with the FBI’s QAS, to see if the probative sample
matches any profiles in the NDIS. The results of this search are to be simultaneously provided to
the court, applicant, and U.S. Attorney’s office. 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.”113 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 results in a match, the Department of Justice (DOJ) is to
contact the appropriate agency and preserve the applicant’s DNA sample.114 However, if the test
results exclude the applicant as the source of the tested evidence, and a comparison between the

108 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).
109 18 U.S.C. §3600(c)(1).
110 18 U.S.C. §3600(c)(2).
111 18 U.S.C. §3600(c)(3).
112 18 U.S.C. §3600(e)(1).
113 18 U.S.C. §3600(e)(3)(A).
114 18 U.S.C. §3600(e)(3)(B).
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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.115
If the results of the DNA test are inconclusive, the court can order further testing, if appropriate,
or it can deny the applicant relief.116 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
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;117
 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.118
Under current law, if the applicant is convicted of 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.119
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.120 Under current law,
the court shall grant the motion of the applicant for a new trial or resentencing, as
appropriate, if the DNA test 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—
(A) in the case of a motion for a new trial, the Federal offense for which the applicant is
sentenced to imprisonment or death; and
(B) in the case of a motion for resentencing, another Federal or State offense, if evidence
of such offense was admitted during a Federal sentencing hearing and exoneration of such
offense would entitle the applicant to a reduced sentence or a new sentencing proceeding.121

115 18 U.S.C. §3600(e)(3)(C).
116 18 U.S.C. §3600(f)(1).
117 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).
118 18 U.S.C. §3600(f)(2).
119 18 U.S.C. §3600(f)(3).
120 18 U.S.C. §3600(g)(1).
121 18 U.S.C. §3600(g)(2).
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DNA Exonerations
The first DNA exoneration occurred in 1989, and since then 375 persons across 37 states have been exonerated
using DNA.122 These exonerees were on average 26.6 years old at the time of their conviction and were
incarcerated for an average of 14 years. Sixty percent of the exonerees were African American. One hundred and
thirty of the exonerees were wrongful y convicted for murder, and 21 served time on death row. Twenty-nine
percent of these convictions involved a false confession, and 31% of those who gave false confessions were 18
years old or younger when they were arrested and 9% had known mental health and/or mental capacity issues.
Preservation of Biological Evidence
Most law enforcement agencies and forensic laboratories retain the DNA samples from which
they generated CODIS profiles to confirm the accuracy of a hit made in the NDIS and provide for
a retest of the sample if new technology is developed.123 The Justice for All Act P.L. 108-405,
among other things, established standards for preserving biological evidence. Under current
law,124 the federal government is required to preserve biological evidence125 that was secured in
the investigation or prosecution of a federal offense, if a defendant was imprisoned for the
offense, unless126
 “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.
The bulk of the programs focus on providing state and local governments with funding to reduce
the backlog of forensic and 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.

122 The Innocence Project, DNA exonerations in the United States, https://www.innocenceproject.org/dna-exonerations-
in-the-united-states/.
123 Fundamentals of Forensic DNA Typing, p. 262.
124 18 U.S.C. §3600A(a).
125 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).
126 18 U.S.C. §3600A(c).
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Debbie Smith DNA Backlog Grant Program
The Debbie Smith DNA Backlog Grant Program (Debbie Smith grants) provides grants to state
and local governments for nine major purposes:
1. analyzing DNA samples “collected under applicable legal authority” for
inclusion in CODIS;127
2. analyzing DNA samples from crime scenes for inclusion in CODIS, if possible
prioritizing “samples from rape kits, samples from other sexual assault evidence,
and samples taken in cases without an identified suspect”128;
3. increasing the capacity of state and local laboratories to complete DNA analyses;
4. DNA sample collection;
5. improving the timeliness of DNA analysis for crime scene samples, including
those from incidents of sexual assault and violent crimes;
6. establishing procedures for DNA collection from arrestees as consistent with
federal, state, local, or tribal law;
7. auditing untested samples from sexual assault evidence in the possession of state
and local governments;
8. improving law enforcement agencies’ practices and timeliness for DNA
collection and processing, particularly for sexual assault and other violent crimes;
and
9. improving state and local prosecutors’ capacity to “address the backlog of violent
crime cases in which suspects have been identified through DNA evidence.”129
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 and territories with the costs associated with collecting DNA
samples from arrestees (assuming there is statutory authority in the state to collect DNA samples
from people arrested for certain offenses).130 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 the Debbie
Smith grants (listed seventh and eighth in the list above).
The Attorney General is required to award these funds using a formula and grant conditions that
maximize the use of DNA technology to solve crimes and to address the needs of jurisdictions
with large backlogs.131 In making these awards, the Attorney General is directed to weigh three
aspects of a given jurisdiction: the number of offender and forensic samples awaiting analysis, the
population, and the number of violent crimes.132 Current law requires DOJ to award not less than
0.5% of the total amount appropriated each fiscal year to each state, Puerto Rico, and the District

127 34 U.S.C. §40701(a).
128 34 U.S.C. §40701(a).
129 34 U.S.C. §40701(a).
130 According to the National Conference of State Legislatures, as of 2018 (the most recent report), 31 states have laws
allowing for the collection and analysis of DNA samples from arrestees. For more detail, see http://www.ncsl.org/
Documents/cj/Arrestee_DNA_Laws.pdf.
131 34 U.S.C. §40701(c).
132 34 U.S.C. §40701(c).
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of Columbia.133 Each territory134 is to receive 0.125% of the total appropriation.135 DOJ may
award not more than 1% of total grant funding each fiscal year to offset the cost of accrediting
and auditing laboratories.136
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.137
Grants for analyses of DNA samples can be made in the form of a contract or voucher for
laboratory services at nonprofit or for-profit laboratories that satisfy the QAS and have been
approved by the Attorney General.138
State and local governments receiving funding under the program are required to submit a report
to DOJ with a summary of the activities, an assessment of whether such activities are meeting the
needs identified in the grant application, and other information the Attorney General may require.
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 to conduct an audit of their 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, 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. The SAFER Act of 2017 reauthorized and extended these provisions until
FY2023 (P.L. 115-107).
Debbie Smith grants were originally authorized under the Justice for All Act (P.L. 108-405). The
law amended the DNA Backlog Elimination Act of 2000,139 authorizing appropriations of $151
million for each fiscal year from FY2004 to FY2009. The program was reauthorized under the
Debbie Smith Reauthorization Act of 2008 (P.L. 110-360), which authorized appropriations of
$151 million from FY2009 to FY2014. The Debbie Smith Reauthorization Act of 2014 (P.L. 113-

133 34 U.S.C. §40701(c).
134 The territories are as follows: U.S. Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands.
135 34 U.S.C. §40701(c).
136 34 U.S.C. §40701(k).
137 34 U.S.C. §40701(d).
138 34 U.S.C. §40701(d).
139 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.
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182) extended the $151 million per fiscal year authorization until FY2019. The Debbie Smith
Reauthorization Act of 2019 (P.L. 116-104) reauthorized the program at $151 million per fiscal
year until FY2024. For FY2022, Congress appropriated $120 million for the Debbie Smith
program.
Sexual Assault Forensic Exam Program
This 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. The
Debbie Smith Reauthorization Act of 2019 (P.L. 116-104) reauthorized the program at $30
million per fiscal year until FY2024. In FY2022, Congress appropriated $4 million for this
program.
DNA Training and Education for Law Enforcement, Correctional
Personnel, and Court Officers Program
This program requires the Attorney General 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 Debbie Smith Reauthorization Act
of 2019 (P.L. 116-104) reauthorized the program at more than $12 million per fiscal year until
FY2024. For FY2022, up to 4% of funds appropriated for the Debbie Smith program may be used
for this purpose.
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 (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 that may establish
innocence for violent felony offenses. The act authorized appropriations of $5 million each fiscal
year from FY2005 to FY2009. The Justice for All Reauthorization Act of 2016 (P.L. 114-324)
reauthorized appropriations for this program at $5 million per fiscal year for FY2017 to FY2021.
For FY2022, Congress appropriated $12 million for this program.
DNA Research and Development Grants
The Justice for All Act 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 million each fiscal
year for FY2005 to FY2009. The Justice for All Reauthorization Act of 2016 (P.L. 114-324)
reauthorized appropriations for this program at $5 million per year for FY2017 to FY2021.
Congress did not appropriate funds for this program in FY2022.
Sexual Assault Kit Initiative (SAKI)
SAKI funds may be used to address both the current backlog of sexual assault kits (SAKs) and
efforts to prevent any future backlogs. SAKI funds may be used to inventory and test unsubmitted
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SAKs, pursue new investigations and prosecutions, support victims, create evidence-tracking
systems, train law enforcement in sexual assault investigations, fund research on the outcomes of
sexual assault cases, and “increase collection of offender DNA for CODIS upload purposes (in
full adherence to the laws in the jurisdiction), that may lead to the identification of serious and
serial sex offenders.”140 Since the initiative’s launch in 2015, more than 130,000 SAKs have been
inventoried, more than 71,000 kits have been submitted to labs for testing, and about 11,000 DNA
hits have been made in CODIS.141 For FY2022, Congress appropriated $50 million for this
initiative.
Emmett Till Cold Case Investigations Program
Under this program, DOJ is authorized to make grants to state or local law enforcement agencies
for expenses associated with the investigation and prosecution of criminal offenses involving civil
rights violations that occurred not later than December 31, 1979,142 and resulted in a death. The
Emmett Till Unsolved Civil Rights Crime Act of 2007 (P.L. 110-344) authorized $2.0 million
each fiscal year from FY2008 to FY2017 for this program. The Emmett Till Unsolved Civil
Rights Crimes Reauthorization Act of 2016 (P.L. 114-325) reauthorized this program at $2
million each fiscal year from FY2017 to FY2027. For FY2022, Congress appropriated $3 million
for this program.
Table 1. Appropriations for DNA-Related Programs, FY2016-FY2022
(in millions of dollars)

FY2016
FY2017
FY2018
FY2019
FY2020
FY2021
FY2022
Debbie Smith DNA Backlog Grant
117.0a
117.0a
120.0a
120.0a
102.0a
110.0a
120.0a
Program
Sexual Assault Forensic Exam Program
4.0
4.0
4.0
4.0
4.0
4.0
4.0
Kirk Bloodsworth Post-Conviction
4.0
4.0
6.0
6.0
7.0
8.0
12.0
DNA Testing Grant Program
DNA Research and Development
—
—
—
—
—
—
—
Grants
Sexual Assault Kit Initiative
45.0
45.0
47.5
48.0
48.0
48.0
50.0
Emmett Til Cold Case Investigations
—
—
—
—
2.0
2.0
3.0
Program
Source: FY2016 enacted taken from P.L. 114-113. FY2017 enacted taken from P.L. 115-31. FY2018 enacted
taken from P.L. 115-141. FY2019 enacted taken from P.L. 116-6. FY2020 enacted taken from P.L. 116-93. FY2021
enacted taken from P.L. 116-260. FY2022 enacted taken from P.L. 117-103.
a. DOJ is authorized to use up to 4% of the funding provided for the Debbie Smith DNA Backlog Grant
program for the purposes authorized under the DNA Training and Education for Law Enforcement,
Correctional Personnel, and Court Officers Program

140 Department of Justice, Bureau of Justice Programs, Sexual Assault Kit Initiative (SAKI), Overview,
https://bja.ojp.gov/program/sexual-assault-kit-initiative-saki/overview (hereinafter, “SAKI Overview”).
141 SAKI Overview.
142 This date was originally set for December 31, 1969. The 2016 reauthorization changed the year to 1979.
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Going Forward
As highlighted above, the use of DNA in the criminal justice system is constantly evolving to take
advantage of the rapid pace of scientific and technological improvements. There are several
issues raised here that policymakers may wish to consider. See the following, for example:
 Rapid DNA Tests. Rapid DNA technology offers an opportunity to process
certain types of DNA samples much more quickly and potentially lessen the
demands on crime labs. Congress might consider legislation or grant funding on
the use of this technology. However, Rapid DNA also has important limitations,
particularly in its usefulness for crime scene samples. Thus, Congress might also
consider legislation aligning with FBI guidance prohibiting the use of Rapid
DNA machines on crime scene DNA samples. Finally, Immigration and Customs
Enforcement (ICE) recently expanded a program to use Rapid DNA tests to
verify familial relationships between people “entering or attempting to enter” the
United States at the southwest border.143 Congress might question whether DNA
profiles obtained by ICE should be stored in CODIS, particularly profiles created
for minors.
 DNA Expungement. Congress might consider the low rate of DNA
expungement discussed earlier in this report by authorizing procedures for
automatic, or state-initiated, expungement of DNA obtained from arrestees who
are never charged, are acquitted, or whose conviction was overturned.
Developing a process by which individuals can have their DNA expunged from
an SDIS is currently a condition for access to the NDIS. The Katie Sepich
Enhanced DNA Collection Act of 2012 (P.L. 112-253) included conditions that
grantees must provide written notification of DNA expungement policies to
people who had samples collected, list eligibility requirements and instructions
for requesting expungement on a public website, and make expungement
decisions within 90 days of receiving an expungement request. Congress might
consider attaching similar provisions to future legislation or federal grants;
however, adopting more stringent expungement policies may be costly for states
in terms of both staff and resources required.
 Sexual Assault Kit Backlog. Congress has created several federal grants to
address the sexual assault kit backlog; however, policymakers could examine
further actions such as developing an Electronic Evidence Exchange Standard
(see the NIJ’s handbook of National Best Practices for Sexual Assault Kits for
additional considerations).144

143 U.S. Immigrations and Customs Enforcement, “Ice Awards New Contract for Rapid DNA Testing at Southwest
Border, Expands Pilot Program,” press release, June, 18, 2019, https://www.ice.gov/news/releases/ice-awards-new-
contract-rapid-dna-testing-southwest-border-expands-pilot-program.
144 National Institute of Justice, “National Best Practices for Sexual Assault Kits: A Multidisciplinary Approach,”
https://www.ncjrs.gov/pdffiles1/nij/250384.pdf; for more information on addressing the sexual assault kit backlog, see
CRS Report R44237, Sexual Assault Kits (SAKs) and the Backlog of Untested Sexual Assault Evidence: In Brief.
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DNA Testing in Criminal Justice: Background, Current Law, and Grants

Author Information

Emily J. Hanson

Analyst in Social Policy

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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Congressional Research Service
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