Judicature Genes and Justice The Growing Impact of the New Genetics on the Courts November-December 1999  Vol 83(3)

From crime scene to courtroom INTEGRATING DNA TECHNOLOGY into the CRIMINAL JUSTICE SYSTEM
by Christopher H. Asplen

Upon reading about the use of DNA technology to exonerate an indi- vidual wrongfully convicted of rape and homicide, United States Attorney General Janet Reno raised concerns about the extent to which similar cases existed.¹ In April of 1997, representatives from the broad spectrum of the criminal justice system met to discuss issues related to the future of forensic DNA technology. After they identified the significant breadth and scope of those issues, the Attorney General requested that the National Institute of Justice establish a national commission to examine the future of DNA evidence and how the Department of Justice could best encourage its effective use. Since its creation the Commission has examined issues that reach beyond the Attorney General's original questions about postconviction DNA application to ensuring a more effective integration of the technology into the criminal justice system.

The Commission is chaired by Shirley S. Abrahamson, Chief Justice of the Wisconsin Supreme Court. The other commissioners represent the judiciary, prosecutors, the defense bar, law enforcement, the scientific community, laboratory directors, academia, the medical examiner community and victim's rights advocates. (See "The commissioners.") The Commission's purpose is to make recommendations to the Attorney General that will maximize the value of incorporating DNA technology into the criminal justice system. To accomplish this it has identified five focal areas and established corresponding working groups: Postconviction, Crime Scene Investigation and Evidence Collection, Legal Issues, Laboratory Funding, and Research and Development. Each working group consists of experts in diverse fields who conduct research, examine specific areas, develop guidelines, and ultimately provide the full Commission with information and analysis for deliberation before it makes recommendations to the Attorney General. This article discusses these working groups and describes some of the specific issues being examined.

Postconviction
A convicted individual's continued assertion of innocence is not new to the criminal justice system. The averment of significant "after discovered evidence" is familiar appellate practice. However, the application of DNA technology to previous convictions may provide a certainty that neither defense nor prosecution is accustomed to in appellate procedure. In these cases, the determination of actual innocence may be achieved, as compared with presentation of evidence that simply suggests the possibility of a different result by a different jury. Because of the level of certainty offered by DNA technology, the decision of whether or not to oppose a motion requesting postconviction relief may now rest on a new, more secure foundation of knowledge. (See "DNA profiling vs. fingerprints.")

The implications of DNA technology are most evident in the area of postconviction DNA appeals, as it applies to specific cases and in its broader impact on the criminal justice system. Not only is the Commission examining the specific, scientific application of DNA technology to previously adjudicated cases through the development of postconviction recommendations, it is also considering the effect that this technology may have on our approach to changes in statutes of limitations for filing appeals and charges. The latter issue arises because DNA samples last indefinitely, beyond the periods of time permitted for such filings.

In September 1999, the Commission presented the Attorney General with a report titled Postconviction DNA Testing: Recommendations for Handling Requests. These recommendations will serve criminal justice practitioners as guidelines for analyzing appeals in which DNA may be determinative of actual innocence. The recommendations, unanimously approved by the commissioners, provide a framework and scientific basis on which practitioners can make fully informed decisions and develop appropriate legal approaches. Separate chapters are tailored to the needs of prosecutors, defense attorneys, the judiciary, forensics laboratories, and victim advocates.²

Crime scene investigation
The unrealized potential of DNA technology is most evident in the area of crime scene investigation.³ Historically, forensic uses of DNA technology developed on two ends of a spectrum: On one end was the development of a laboratory technology that was robust and reliable for application in the criminal justice system. The other end of the spectrum was the courtroom application of DNA technology and the "admissibility wars." While significant resources were being allocated to these areas, few were dedicated to educating law enforcement officials, who are responsible for identifying, collecting, and preserving the evidence.

In the United States, forensic DNA technology developed primarily as a prosecutorial weapon, rather than an investigative tool. Unlike the use of forensic DNA evidence in Great Britain, which found its first application in the context of an "intelligence screen" of 4,582 people, DNA evidence was used in the United States primarily to confirm the identity of a suspect already under suspicion. Without a socially and legally permissible mass testing investigative technique and an offender database system, little opportunity existed to harness DNA's ultimate investigative power—its application to non-suspect cases. DNA evidence became something prosecutors requested from law enforcement to prove their case, not something police used to identify and arrest perpetrators.

The advent of the Combined DNA Index System (CODIS) database (discussed below) created a new paradigm of investigation for law enforcement. While several years ago it made no investigative or financial sense to request DNA analysis in cases with no suspect, the introduction of database capabilities significantly changed this situation. However, current use of this technology falls far short of its potential.

Efforts of the Crime Scene Working Group and testimony from the law enforcement community has allowed the Commission to identify significant obstacles to effective use of DNA evidence by law enforcement officers to solve crimes. Of particular concern is the lack of educational resources to ensure proper identification, preservation, and collection of appropriate biological evidence that could yield a perpetrator's DNA profile. Evidence not identified at the crime scene may not be collectable at a later time, due to destruction by environmental factors or other investigative procedures. Improperly collected evidence may generate confusing, less discriminating, or even inaccurate results.

The working group developed an educational pamphlet that was unanimously approved by the Commission for distribution to every law enforcement officer in the country. What Every Law Enforcement Officer Should Know About DNA Evidence (September 1999) explains the basics of DNA technology in simple terms, and outlines fundamental identification, preservation, and collection issues. It also educates officers about CODIS.⁴ The recommendation for such a wide distribution recognizes the importance of first responders in evidence collection, and encourages management to acknowledge the importance of funding for education and DNA testing. Through the working group, the Commission is also developing a more extensive, computer-based curriculum for training officers in DNA collection techniques. We anticipate that this training module will be made available on both CD ROM and via the Internet for incorporation into academy curricula and in-service training programs.

Laboratory funding
Increasing the integration of DNA technology into the investigative process has significant implications for forensic laboratories, most of whom still struggle to meet the demand of cases analyzed for courtroom presentations. In addition, the advent of CODIS has created a national backlog of more than 1.3 million unanalyzed samples, one million of which have not even been collected from convicted offenders.⁵ One problem is that these laboratories were never designed for high volume testing. Further, as the scope of crimes specified by state convicted offender statutes expands, the volume of database samples to be analyzed will increase dramatically. The Commission is providing guidance by first examining the CODIS backlog and then considering the broader issue of laboratory capacity in the context of expanded use by the law enforcement community.

The CODIS backlog. In 1990, individual states joined with the Federal Bureau of Investigation to embark on the most significant advance in criminal investigation in the twentieth century: the establishment of the Combined DNA Index System (CODIS). Through CODIS, law enforcement agencies can compare DNA samples from biological evidence found at a crime scene to DNA profiles stored in convicted offender databases and rapidly identify perpetrators of the most serious crimes. So valuable is this technology that every state in the country has now passed legislation establishing a CODIS database system and requiring offenders convicted of certain crimes to provide DNA samples. Because state DNA laboratories cannot process database samples quickly enough, however, criminals who should be identifiable through CODIS remain free to re-offend. The estimated backlog of CODIS samples is six years.

Currently, the CODIS database contains about 230,000 convicted offender profiles.⁶ This relatively limited volume allows the system to identify a perpetrator for approximately every 1,000 offender samples maintained in the system. Some states report an even higher "hit" ratio. Florida, for example, generates approximately one "hit" for every 300 offender samples. In the United Kingdom the Forensic Science Service reports that their database system currently maintains a database of more than 600,000 samples and receives between 300 and 500 hits per week.

Most of the 230,000 DNA profiles currently in the CODIS system were analyzed by a method of DNA analysis that is rapidly becoming outdated. That method, called Restriction Fragment Length Polymorphism (RFLP) testing, was the first method of forensic DNA analysis to be introduced in the courts. Because of certain limitations, the RFLP method is being replaced by a newer technology, now validated in the forensic community, called Polymerase Chain Reaction using Short Tandem Repeat markers (PCR-STR). But the RFLP and STR methods do not produce comparable DNA profiles. The blood or saliva samples taken from individuals convicted of rape, sexual assault, murder, and other serious offenses that remain in storage are now waiting to be analyzed and entered into CODIS using a set of 13 PCR-STR markers that will be sufficient for convicted offender identification into the next decade.

Some samples have been in laboratory freezers for as long as five years. These are from perpetrators whose blood may have been taken upon conviction but was not analyzed before their release. If that offender re-offends upon release, one of law enforcement's most powerful tools becomes useless. Given the recidivistic nature of many of the crimes for which DNA is collected pursuant to state statute, apprehending a perpetrator through CODIS can effectively prevent crime.

Because of our inability to analyze offender DNA quickly, we find ourselves in a unique position. We can now identify victims who never should have been victimized. Any woman raped or child murdered by an offender whose blood is drawn, but sits in storage for years while he commits other crimes, is the victim of an absolutely preventable crime. If that offender's DNA is analyzed and his profile placed in the system, he can be apprehended upon his first offense out of prison, preventing the victimization of subsequent persons. Yet we currently risk the former scenario tens of thousands of times over each year. It is rare, especially in the criminal justice system, that an infusion of financial resources could have such a measurable effect on crime prevention.

Because of its critical importance, the backlog issue became the subject of the Commission's first recommendation to the Attorney General, and was presented in the spring of 1999.

The Commission recommends the expeditious analysis and input of untested backlogged samples into the CODIS database system, the effective prioritization of offender samples and the encouragement and facilitation of the use of DNA in non-suspect cases. Grants should be established that facilitate the reduction of both collected and uncollected database samples, that encourage the development of effective systems for the collection of those samples and that provide law enforcement agencies with direction and guidance to effectively use DNA in non-suspect cases. An Advisory Committee should be established that would set criteria and methods for accomplishing these goals. These grants should be administered with the goal of maximizing the effect of the database system while preventing future database backlogs.

Having convicted offender DNA profiles in CODIS will allow law enforcers to solve cases more quickly. Because cases will be solved more quickly, offenders will have less time to re-offend. It will also help solve old cases that appeared to hold no hope of closure for the victims. The expedient identification of offenders through CODIS also saves valuable investigative resources from being squandered on tracking down erroneous leads.

Future laboratory capacity. The Commission will continue to discuss laboratory funding issues based on its vision of effective laboratory capacity, and an ability to process several different classes of cases.

First, the system should process case analysis samples in a timely manner. Laboratories should not be in the position of prioritizing samples based on trial dates or the demands of prosecutors. Rather, laboratories should have the resources to process samples in a time frame consistent with the use of DNA as an effective investigative tool. The Commission will estimate that time frame and the level of funding that it would require.

Second, the system should achieve a zero backlog of offender database samples and be able to process such samples at a speed that maximizes the effectiveness of the database system and prevents future backlogs. The optimal system also assumes the appropriate prioritization of database sample analysis assuring that individuals on probation and parole (and, as such, capable of re-offending) are tested and entered into the system before those serving lengthy sentences.

Third, as stated in the section on crime scene investigation, laboratories should have the resources to process non-suspect cases in a timely fashion. While it is obvious that the database's ability to solve non-suspect cases is its most important purpose, there is a concern that we are furthest away from accomplishing that goal, given the other pressures on laboratory resources.

Finally, laboratories should have the resources to process old, unsolved cases. The database system has the potential capability to close many previously "unsolvable" cases if law enforcement is willing to apply the technology to unsolved casework.

Legal issues
In a March 8,1999 request to the chair of the Commission, Attorney General Reno identified several "profound" privacy issues for consideration by the Legal Issues Working Group.

One issue is the retention of DNA samples after testing has been completed. In many instances the biological sample is stored indefinitely. Given the changing nature of DNA technology, capabilities may be developed that allow analyses that were not anticipated at the time of sample collection. What are the possibilities and implications of such a dynamic? What are the legal issues and analyses that must be considered for us to maximize this technology in a way that protects our citizens but does not erode our essential rights of privacy? These questions remain under consideration.

A second issue identified by the Attorney General involved DNA testing of arrestees vs. testing only convicted offenders. While still considering the constitutional implications of such a proposition, the Commission issued an interim recommendation on the subject, stating:

The Department of Justice should not advocate a policy supporting arrestee sampling unless 1) the convicted offender database backlog is substantially eliminated, 2) significant resources are allocated for the analysis of non-suspect cases, and 3) sufficient funds are made available for the collection and analysis of arrestee samples.

While recognizing an investigative value to arrestee testing, the Commission was concerned about the effect arrestee sampling would have on a laboratory system already struggling to keep pace with the testing of convicted offenders, a significantly smaller number of samples.

A third topic under consideration is the issue of statutes of limitations as they apply to both the filing of charges and the filing of appeals. Given the power of DNA technology to investigate crimes that occurred beyond many state's statutes of limitations, the arbitrary allocation of five or ten years to the investigative process may be unfair to victims of crime who may now be able to have their crimes solved, but for the statute of limitations. Likewise, for defendants wrongly convicted but who may be exonerated by DNA evidence, time limits on the appeals process established before this technology was implemented are hardly appropriate.

Research and development
The Research and Development Working Group examines issues that need to be addressed from a technology perspective as the Commission endeavors to identify law enforcement's needs. The criminal justice community needs to know what tools will be available at the crime scene. Will police have portable units to take to crime scenes to do on-scene DNA analysis and will they be able to connect directly to the database? Will the technology exist in the near future to create a physical description of a perpetrator based on a crime scene DNA sample? As we increase our ability to generate results from even smaller samples (a DNA profile may be obtained from a single cell), we must be able to distinguish between the collection of samples likely to yield the identity of the perpetrator and those likely to mislead an investigation.

The financial resources allocated to laboratories is obviously dependant upon future technological developments. The continued substantial commitment to STR technology needs to be based on the confidence that STRs will remain the most efficient and effective technology available. The implications of the forensic use of automation, miniaturized "chip" technology, and other advances need to be considered in order to evaluate their future effectiveness in the criminal justice system.⁷

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By identifying and examining the various issues associated with forensic DNA, the National Commission on the Future of DNA Evidence can facilitate a more effective application of this technology, expediting its usefulness as a crime-fighting tool while encouraging public trust in the system. The pro-active approach to these topics, through the Commission's efforts, will ensure that the further integration of this technology will be accomplished with broad based input, thoughtful consideration, and effective analysis of the relevant issues.

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Christopher H. Asplen is an assistant United States attorney and Executive Director of the National Commission on the Future of DNA Evidence.

Because the Commission is still in deliberation, the opinions expressed here are not necessarily those of the Commission, but rather of the author. Further information about the Commission, copies of the reports it has issued, and proceedings of its meeting are available at http://www.ojp.usdoj.gov/nij/dna.

1. See Connors, et. al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence after Trial (Washington, D.C.: U.S. Department of Justice, 1996).
2. Available from the National Criminal Justice Reference Service, 800-851-3420 or on the Commission's website www.ojp.usdoj.gov/nij/dna/.
3. FBI Laboratory Forensic Science Systems Unit, 1998 CODIS DNA Laboratory Survey (Washington D.C. January 1999).
4. Supra n. 2.
5. Supra n. 3.
6. Id.
7. U.S. Department of Justice, Automated DNA Typing: Method of the Future (Washington, D.C.: U.S. Department of Justice, 1997).

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The online presentation of this publication is a special feature of the Human Genome Project Information Web site.