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78–050 PDF 2002

HOW EFFECTIVELY ARE STATE AND FEDERAL

AGENCIES WORKING TOGETHER TO IMPLEMENT THE USE OF NEW DNA TECHNOLOGIES?

HEARING

BEFORE THE

SUBCOMMITTEE ON GOVERNMENT EFFICIENCY,

FINANCIAL MANAGEMENT AND

INTERGOVERNMENTAL RELATIONS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

JUNE 12, 2001

Serial No. 107–57

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

BOB BARR, Georgia

DAN MILLER, Florida

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

DAVE WELDON, Florida

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

C.L. ‘‘BUTCH’’ OTTER, Idaho

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, Tennessee

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

JANICE D. SCHAKOWSKY, Illinois

WM. LACY CLAY, Missouri

——— ———

——— ———

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

JAMES C. WILSON, Chief Counsel

ROBERT A. BRIGGS, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON GOVERNMENT EFFICIENCY, FINANCIAL MANAGEMENT AND

INTERGOVERNMENTAL RELATIONS

STEPHEN HORN, California, Chairman

RON LEWIS, Kentucky

DAN MILLER, Florida

DOUG OSE, California

ADAM H. PUTNAM, Florida

JANICE D. SCHAKOWSKY, Illinois

MAJOR R. OWENS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California

J. RUSSELL GEORGE, Staff Director and Chief Counsel

EARL PIERCE, Professional Staff Member

SCOTT R. FAGAN, Clerk

DAVID MCMILLEN, Minority Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on June 12, 2001 ............................................................................... 1

Statement of:

Adams, Dwight E., Deputy Assistant Director, Laboratory Division, Federal Bureau of Investigation; David Boyd, Deputy Director, National

Institute of Justice; Christopher Asplen, executive director, National

Commission on the Future of DNA Evidence; Michael Lawlor, State

representative, Connecticut General Assembly, on behalf of the National Conference of State Legislators; Keith Coonrod, chair, Consortium of Forensic Science Organizations, New York State Police Forensic

Investigation Center; Jamie Downs, director, chief medical examiner,

Alabama Department of Forensic Science; Robert S. Conley, chairman,

American Society of Crime Laboratory Directors/Laboratory Accreditation Board and Director of the Indiana State Police Laboratory System;

Kevin L. Lothridge, deputy director, director of strategic development,

National Forensic Science Technology Center ............................................ 45

Scheck, Barry, attorney, director, the innocence project, Cardozo School

of Law ............................................................................................................ 24

Smith, Debbie, crime victim ............................................................................ 11

Letters, statements, etc., submitted for the record by:

Adams, Dwight E., Deputy Assistant Director, Laboratory Division, Federal Bureau of Investigation, prepared statement of ................................. 49

Asplen, Christopher, executive director, National Commission on the Future of DNA Evidence:

Information concerning DNA evidence .................................................... 83

Prepared statement of ............................................................................... 87

Boyd, David, Deputy Director, National Institute of Justice, prepared

statement of ................................................................................................... 62

Conley, Robert S., chairman, American Society of Crime Laboratory Directors/Laboratory Accreditation Board and Director of the Indiana

State Police Laboratory System, prepared statement of ........................... 119

Coonrod, Keith, chair, Consortium of Forensic Science Organizations,

New York State Police Forensic Investigation Center, prepared statement of ........................................................................................................... 108

Downs, Jamie, director, chief medical examiner, Alabama Department

of Forensic Science, prepared statement of ................................................ 114

Horn, Hon. Stephen, a Representative in Congress from the State of

California, prepared statement of ................................................................ 4

Lawlor, Michael, State representative, Connecticut General Assembly,

on behalf of the National Conference of State Legislators, prepared

statement of ................................................................................................... 97

Lothridge, Kevin L., deputy director, director of strategic development,

National Forensic Science Technology Center, prepared statement of .... 123

Maloney, Hon. Carolyn B., a Representative in Congress from the State

of New York, prepared statement of ........................................................... 8

Scheck, Barry, attorney, director, the innocence project, Cardozo School

of Law, prepared statement of ..................................................................... 31

Smith, Debbie, crime victim, prepared statement of ..................................... 16

(1)

HOW EFFECTIVELY ARE STATE AND FEDERAL AGENCIES WORKING TOGETHER TO

IMPLEMENT THE USE OF NEW DNA TECHNOLOGIES?

TUESDAY, JUNE 12, 2001

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON GOVERNMENT EFFICIENCY, FINANCIAL

MANAGEMENT AND INTERGOVERNMENTAL RELATIONS,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 10 a.m., in room

2154, Rayburn House Office Building, Hon. Stephen Horn (chairman of the subcommittee) presiding.

Present: Representatives Horn, Putnam, Schakowsky, and

Maloney.

Staff present: J. Russell George, staff director and chief counsel;

Bonnie Heald, director of communications; Earl Pierce, professional

staff member; Scott Fagan, committee assistant; Chris Barkley,

staff assistant; Alex Hurowitz, Ryan Sullivan, and Fariha Khaliq,

interns; Michelle Ash, minority counsel; David McMillen, minority

professional staff member; and Jean Gosa, minority assistant clerk.

Mr. HORN. A quorum being present, the Subcommittee on Government Efficiency, Financial Management and Intergovernmental

Relations will come to order.

The subject of today’s hearing, DNA technology, demonstrates

the challenges that societies have confronted throughout history.

Scientific advancements have, for the most part, improved the

human condition. Yet, the same advances have at times forced society to confront new challenges and perhaps new controls.

Scientific advances, such as splitting the atom, for example, have

led to the creation of the atomic bomb and nuclear power. Controls

have been used. Some might even include the automobile on that

list, and more controls have been used. The use of DNA technology

is one of those issues.

DNA technology is a powerful forensic tool for law enforcement.

The technology was introduced into Great Britain by scientist A.J.

Jeffreys in 1985. Since the FBI introduced this technology to the

United States in 1988 it has been used in thousands of cases to

help convict the guilty and exonerate the innocent. This is possible

because each person’s DNA is unique and can be profiled through

a laboratory test.

When a crime has been committed the criminal often leaves some

form of DNA evidence at the crime scene. It may be a drop of blood,

2

skin cells, saliva, or other body tissues. If a DNA profile obtained

from such evidence is the same as a profile obtained from the suspect, it can be a strong indication that the suspect committed the

crime. If the profiles are not the same, the suspect almost certainly

did not commit the crime. In fact, according to the FBI, in about

one of every four cases involving DNA, the initial suspect is exonerated.

Recent DNA technology is more powerful and more sensitive

than the original technology, and it is cheaper and quicker to test.

Within a few days, a DNA profile can now be obtained from a blood

stain the size of a pin head. In one case, a burglar leaving the

scene, stopped in the kitchen for a snack on the way out. Forensic

scientists obtained enough DNA from saliva left on the piece of

cake that he had munched on to make a positive match. Another

type of DNA can be extracted from the bones and strands of hair.

The use of DNA evidence has become increasingly prevalent, in

part because Federal, State, and local governments have worked

together to develop and implement DNA analysis. The Federal

Government has provided funding and guidelines through the DNA

Identification Act of 1994 and subsequent legislation. The FBI has

developed a coordinated set of local, State, and Federal data bases

called the Combined DNA Index System [CODIS]. This system contains DNA profiles from convicted criminals, unresolved crimes,

and missing persons. Every State now uses DNA evidence and requires that certain categories of criminals be profiled. Local police

and prosecutors throughout the Nation are increasingly welltrained in how to use and how to obtain DNA evidence.

Of course, DNA is much more than a forensic tool. It is also the

basic chemical of inheritance. For that reason, as with other advances in technology, DNA evidence requires special cautions and

safeguards. Although there are specific safeguards laid out in Federal and State laws, issues of privacy are of concern to many. In

addition, there are concerns about timeliness.

The greater use of DNA technology has overwhelmed many, if

not most, of the Nation’s forensic laboratories that analyze this evidence. The National Commission on the Future of DNA Evidence

will testify before us that there are 750,000 collected but

unanalyzed aspects of DNA. And the Federal and State governments have allocated funding specifically to reduce these backlogs.

Still, the backlogs remain, allowing criminals to continue preying

upon innocent victims and allowing those who have been wrongly

convicted of a crime to languish in prison. When these samples are

not processed in a timely manner, justice is delayed and, in some

cases, denied due to varying statutes of limitations.

Today, we want to learn how effectively the Federal Government

is helping alleviate this backlog and how the Federal assistance

might be improved.

Our first panel of witnesses will attest to the importance of timely DNA processing from their first-hand experience. In addition,

there are several key witnesses from the beginning here. Mr. Barry

Scheck has been on the frontline in defending the rights of those

convicted of crimes to have access to post-conviction DNA testing.

3

Following our first panel, we will hear from those who are involved

in the analysis and collection of DNA evidence. They will discuss

their successes and the challenges that lie ahead.

We welcome our witnesses. We look forward to their testimony.

[The prepared statement of Hon. Stephen Horn follows:]

4

5

6

Mr. HORN. I am now going to yield to the gentlewoman from New

York. It was her idea to have us take a look at this, and we are

indebted to her and her staff, who worked with our staff. I am delighted to have Mrs. Maloney give her opening statement.

Mrs. MALONEY. Thank you, Chairman Horn, for agreeing to have

this hearing. Our ranking member, Jan Schakowsky, is on her way

and will be here shortly.

I think that DNA evidence is one of the most important crimefighting technologies ever developed and I am delighted that we

will have the opportunity to examine this issue today.

I would also like to thank all of our witnesses for taking time

from their busy schedules to come here today. We are blessed to

have such a wealth of the knowledge available, and I look forward

to hearing from each of you. I would especially like to mention two

of my constituents who are here today. Barry Scheck is the founder

of the Innocence Project. Under his leadership 88 people have been

exonerated. He has worked selflessly to develop policies and standards to bring more fairness and justice to the system. Another important leader is Keith Kenneth Coonrod, Chair of the Consortium

of Forensic Science Organizations. I thank you for all what you are

doing, and particularly for your strong work in New York.

Today we will hear plenty about how powerful DNA technologies

have become. We will hear plenty about the magical powers of

DNA; that DNA can be extracted from a drop of blood, that the

chances of a solid DNA profile match being a coincidence can be

one in a trillion.

But I want to talk this morning about what this really means.

DNA technologies means that rapists and other violent offenders

will not get away with their terrible crimes. Even when there is absolutely nothing else to go on, a strand of hair, the bottom of a used

stamp, or even DNA taken off of a victim’s bruise can be used to

catch and convict criminals.

This means so much to so many victims of rape and violent crime

all across this Nation. Just this last month in my district in New

York City, police finally arrested a rapist who had assaulted a

young NBC producer on her way home from work. Although police

had been unable to locate her attacker for well over a year, DNA

found on the victim following the attack turned out to match the

DNA of a previously convicted burglary offender. With nothing else

to go on, solid DNA evidence helped break the case. Without DNA,

this criminal would still be on the streets. This is what this is all

about—solving the crime, putting attackers and rapists behind

bars.

With that in mind, I have a few particular things that I would

like to learn today, and I hope that our witnesses will be able to

address them in their testimony or during the question and answer

period.

Last year, Congress passed the DNA Backlog Elimination Act,

designed to help States and localities collect and process DNA samples taken from convicted offenders. I was proud that Congress

passed that legislation. Expanding the DNA database means that

more criminals will be caught when the DNA they leave at a crime

scene is matched against the database. I would like to hear how

this program is working. This was a critically important step, and

7

I am eager to learn from our panel how much impact that legislation is having from your experience at the State and local level.

But what I would also like to learn is how well evidence is being

collected at the crime scene and from victims immediately following

a crime. This is a forensic evidence collection kit. It contains all of

the tools a professional needs to collect evidence from a rape victim. But many hospitals across the Nation do not have these kits.

In many places where kits are not available, forensic evidence is

collected with nothing more than a cotton swab and a plastic bag.

In many communities professionals assigned the task of collecting

evidence from rape victims have not been fully trained and opportunities to collect evidence are squandered. Also, when evidence is

collected, many hospitals and communities lack the know-how or

the resources to properly care for the forensic evidence they have

already collected.

In the end, this means that even the most talented forensic scientist may have little to work with. No matter how big the database is, we cannot fully recognize the benefits of the database without quality evidence.

I am extremely interested in how we can ensure that evidence

is collected and stored properly, and I hope that all of our witnesses will address these issues today. I would also like to hear

from you any ideas of where you think we should go in Congress

not only with the data collection backlog bill, but what are the next

steps that we can take to help law enforcement officials and innocent persons in jail benefit from the scientific evidence in DNA.

I thank all of our panel for coming. Thank you very much for

your participation. And I see our ranking chairwoman, Jan

Schakowsky, is here.

[The prepared statement of Hon. Carolyn B. Maloney follows:]

8

9

10

Mr. HORN. I thank the gentlewoman from New York.

We now have the ranking member of this subcommittee, Ms.

Schakowsky, the gentlewoman from Illinois, with us. We look forward to your opening statement.

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. I want to thank

you for holding this hearing. And I want to thank Mrs. Maloney

for her leadership on this issue and for requesting that our subcommittee review this important topic.

Reviewing the use of new DNA technologies is an area that we

can work together in a bipartisan fashion to ensure strong oversight. Democrats, Republicans, and Independents recognize the

need for increased safeguards when it comes to the use of an individual’s genetic makeup. DNA can be a useful identifier in many

situations, such as in solving crimes, determining paternity, and

identifying human remains.

Today we will hear from a number of experts regarding how

DNA technologies are being used by law enforcement agencies. In

criminal cases, DNA can link or exclude a suspect to a crime scene.

Similarly, it can link or exclude a weapon, such as a knife, to a

crime scene. DNA can be collected from blood, semen, skin, saliva,

tissue, tears, bone fragments, and other body fluids. DNA has even

been collected from tears found on fragments of contact lenses. And

useable DNA can now be extracted from very small samples, such

as a drop of blood the size of a pin head.

In order for DNA to be helpful to law enforcement officers, it

must be collected, stored, and accessible for retrieval. Whether at

a crime scene, in a hospital, in prison, or in a laboratory, DNA

must be collected properly. Law enforcement officers, hospital staff

and laboratory technicians must know how and what to collect and

how to handle and transport it. They must ensure that the DNA

samples are collected, the DNA samples are not contaminated, and

the DNA samples from different persons are not mixed.

Once the DNA is collected, it must be stored properly. Laboratories in only 35 States are adding DNA samples to the national

database. We must push to have the other 15 States on board as

soon as possible. In addition, within those 35 States that are participating hundreds of thousands of samples have yet to be analyzed. We must also push to have this backlog reduced. I was a

strong supporter of the DNA Backlog Elimination Act that passed

last year, and I support ongoing efforts to appropriately fund DNA

testing.

Accessibility to the DNA samples, once they are properly stored,

is also important. Unless every laboratory shares its samples with

the national database, law enforcement officers in one State cannot

review samples taken in another State. In addition, convicted felons should have an opportunity to have their DNA double-checked

against the crime scene. As we will hear from some of our witnesses today, there are prisoners on death row who are fighting to

get their DNA tested in order to prove their innocence. Last year,

after noting that the State had freed more people than it had put

to death, Illinois Governor George Ryan placed a moratorium on

the death penalty. Ryan explained that a commission was needed

to study 13 death penalty cases that were overturned after prisVerDate 11-MAY-2000 10:25 Apr 30, 2002 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 C:\DOCS\78050.TXT HGOVREF1 PsN: HGOVREF1
11

oners were found innocent due to factors like new DNA evidence,

recanted testimony, or insufficient evidence.

Furthermore, I have cosponsored H.R. 912, the Innocence Protection Act of 2001, which authorizes a person convicted of a Federal

crime to apply to the appropriate Federal court for DNA testing to

prove innocence, and prohibits a State from denying an application

for DNA testing made by a prisoner in State custody who is under

sentence of death if specified conditions apply.

Mr. Chairman, as DNA technologies continue to advance, we will

need greater and greater coordination between our State, local, and

Federal law enforcement agencies. I am hoping this hearing will

help us pave the way to such coordination. Thank you.

Mr. HORN. Thank you.

Let me give you the procedure of panel I, and then we will do

that for panel II again. On panel I, we have two expert witnesses.

Deborah Smith is the crime victim that I mentioned earlier, and

Barry Scheck is an attorney and the director of the innocence

project of the Cardozo School of Law in New York. Some members

have statements, we have read them all, and if you have submitted

a written statement, it goes into the hearing record at this point

and then you can summarize it. We would like you to do so in

about 10 minutes because we have a lot of witnesses here today.

But if you need to go beyond that time, we will. We want to make

sure, following your fine testimony we have seen throughout panels

I and II, we want to make sure you can have a discussion with people that might not agree with some of the way processing is going

on. We just want to get it all out and on the record.

This is an investigative committee. We will be asking each of the

witnesses in a group to take the oath. So, with that, if you would

raise your right hands.

[Witnesses sworn.]

Mr. HORN. The clerk will note that both witnesses have affirmed

the oath.

We will now proceed. Ms. Smith, we appreciate your coming because you are a crime victim and you know about these things

more than anybody else would. So, if you would like to begin with

your statement, we would certainly appreciate having it.

STATEMENT OF DEBBIE SMITH, CRIME VICTIM

Ms. SMITH. 03–03–89, 9342–00 through 9342–05; Numbers of

Identification 8905010; C89–1968—human identification. 180907;

89–85–00–0234; written and spoken without a particular face impressed on the mind. ; 214515HA4; VA654195. Cold,

impersonal, but necessary numbers of human identification revealing personal information about this faceless individual. Never before had there been so many ways to identify me, and yet I had

never felt so lost. I resented being referred to as a number. The

numbers made it seem as if I did not exist as a person; mechanical

and unreal. Little did I know that it would be numbers—matching

numbers that would breathe air into my lungs and allow me to

truly live again.

There is no way for you to understand how what is done in the

DNA laboratories can mean the difference between life and death

without taking you back to March 3, 1989. It is around 1 on a FriVerDate 11-MAY-2000 10:25 Apr 30, 2002 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 C:\DOCS\78050.TXT HGOVREF1 PsN: HGOVREF1
12

day afternoon. Outside it is cold and gray and there is a light mist

falling. I am in my home in a nice neighborhood in the city of Williamsburg, VA, which happens to be one of the safest cities in our

country. My husband, who is a police lieutenant, was asleep upstairs after having been up for over 30 hours. How could I have

possibly been any safer? I had no way of knowing that within a

matter of moments my life and the lives of those around me would

be changed forever.

It was a typical day in the life of any wife and mother. I was

cleaning house, doing laundry, and preparing dessert for dinner

with friends. In the midst of all of this I noticed that my dryer was

not working properly, so I stepped outside to check the exhaust

vent. When I returned, I decided to leave the back door unlocked,

a door that is always locked. But I knew that I was going to return

right away with the trash. But before I could return, within moments, a stranger entered that door and nearly destroyed and definitely changed my life forever.

This masked stranger forcibly took me out of my home into a

wooded area where he blindfolded, robbed, and repeatedly raped

me. This crime that took less than 1 hour has deprived me of an

innocent outlook on life and on my freedom. The sound of his voice

rang through my ears as a deafening clamor—‘‘Remember, I know

where you live and I will come back if you tell anyone.’’ But I did tell someone. As soon as I was allowed to return home,

I ran upstairs to where my husband was sleeping and I woke him

with the words ‘‘He got me, Rob, he got me.’’ I begged him please

don’t call the police. I pleaded with him not to tell anyone because

I feared this man would keep his promise and he would return and

kill me. But the police officer in my husband knew that we could

not let this crime go unreported. He also convinced me of the importance of going to the hospital, for he knew that we may need

the evidence that would be collected from the rape kit. But all I

wanted to do was to take a shower. I wanted to try to wash it all

away.

When we returned home from the hospital I thought I could

begin to process what really happened. I had survived this terrible

ordeal; I could put it behind me and go on. I did not know that the

worst was yet to come.

My favorite place, my home, seemed now nothing more than cold

stone and wood. Nothing seemed familiar. The one place I had always felt comfortable and safe was now taunting me with memories. I would relive this nightmare day after day, remembering

more and more of the details each day as the shock began to wear

off. It was far from being over.

For the first time in my life I could not find any reason to live.

The love of my family and friends just was not enough because

they could not erase the memories and they could not take away

the pain. Even my faith in God seemed to be failing me, for there

was no escaping the pain and no escaping the fear.

Fear will not be satisfied until it has taken over your entire body

and mind as a cancerous tumor. It cripples as arthritis, making

every movement unbearable until it is finally no longer worth the

pain. You become paralyzed. You feel trapped and helpless. It was

always there. It was there in my waking hours as well as in my

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dreams, and on many occasions my husband would be awakened in

the middle of the night to the sound of blood curdling screams from

my nightmares.

It was at this point that I began to realize that I could not, and

I absolutely would not, live this way. Death seemed to be the only

alternative, the only answer that would end this horrible nightmare that had become my life. In death there would be peace and

there would be quiet, for I would no longer have to hear his voice

in my ears, or feel his arms around my neck, and I would no longer

have to see his face before my eyes. I knew that my mind could

finally rest.

I planned the suicide in my head over and over, but there was

one problem that there seemed to be no solution for, and that was

my husband and two children, because I worried who would find

me and would they have to live in guilt feeling that they had somehow failed me. I wondered what this would do to them. And I

thank God that it was my love for them that was stronger than my

need to rid myself of my torment. I finally grabbed onto this thread

and it became my reason to live.

One of the most frequent comments that I heard after I was

raped was ‘‘At least you’re alive.’’ But I can still tell you today that

while I was alive physically, inside I had died and I was completely

dead. I cursed my attacker in fact for leaving me alive to live with

the pain. This intruder never laid a physical hand on anyone in my

family, but when he left he left each one of us a victim. He touched

emotions in us that we had never known. Suddenly, there was rage

in the eyes of my young son. My daughter was afraid to go from

the porch to the driveway after dark. And each one of us, especially

my husband, felt the awful pain of guilt for he felt as if he could

protect the whole city of Williamsburg but was unable to protect

his own wife in our own home. Our home, which had always been

filled with love and laughter, had now become just a house full of

bitterness, anger, fear, and guilt.

But my family and I were not the only victims that day. Every

person that touched my life or my family’s life was to feel the effect

of this crime. They too felt invaded and vulnerable. I could see the

pain in their eyes because I was a constant reminder that rape can

happen to anyone anywhere. They were angry for me and yet they

felt helpless for there was nothing they could do. Our minds and

our bodies ached for understanding and yet there was none to be

found.

I waited daily to hear the news that they had found this man

that had changed our lives so drastically. I lived in constant fear

of his return, hearing his words over and over in my head ‘‘I know

where you live and I will come back and I will kill you.’’ The Williamsburg Police Department followed every lead and every clue

only to come up empty handed. Even in my own mind I began to

doubt myself. I wondered if it really happened or was it just some

terrible nightmare. Do they believe me, or are they doubting my

words just as I was doubting myself? But in my heart I knew that

it was not just some nightmare that was going to fade with time,

but that it would be one that I would have to live with forever.

I craved peace of mind and I did everything I could to attain it.

We put an alarm system in our home, including panic buttons

14

throughout the house as well as one that I could wear around my

neck, the privacy fence was put up around our backyard, and motion detectors installed. At one point, I even decided to carry a gun.

There just did not seem to be any way to attain this peace and rest

that my mind and my body craved for so long. I would have to suffer daily with the memory of a man who was in my life for such

a short span of time. He may never have to pay for his crime, but

I was going to have to pay for it forever. For 61⁄2 years I simply

existed, trying to go on and live life as normal. I can tell you that

it is only by the grace of God that I am still here today.

VA 122015Y; 01–14–91—just more numbers—9117682; 07–24–

95—but these numbers bring with them a life-giving force and renewed hope—4183; 07–26–95. As George Lee sat at his computer

in the Virginia Division of Forensic Science on July 24, 1995, on

what probably seemed to him just a normal day at the lab, he had

absolutely no way of knowing what effect his work that day would

have on my life and those around me. On this day, Mr. Lee entered

a prisoner’s blood sample into the computer and it automatically

began its cross-check against previously entered samples, some of

which were obtained from the rape kits. To his joy and surprise he

received a cold hit, something that was fairly rare at that time.

This information was passed onto the Williamsburg Police Department, they in turned passed the information onto the shift lieutenant working that day, who just happened to be my husband.

On that day, July 26, 1995, my husband walked into our living

room and handed me a composite that he had carried with him

ever since the incident and told me that I could throw it away because we were not going to need it anymore. Not only had they

identified my rapist, but he had been in prison for another crime

and had been there since 6 months after I was attacked. For the

first time in 61⁄2 years I could feel myself breath. I felt validated.

There was a real name and a real face to go with the nightmare

that I had lived. And everyone would know that I was telling the

truth, that it was real.

Finally, I could quit looking over my shoulder. No longer did I

have to drive around in circles hoping that a neighbor would drive

by so that I could get the courage to get out of my car to go into

our own home after dark if no one else was home. Unfamiliar

noises no longer left me panic-stricken, and I no longer had to scan

the faces in the crowd to see if maybe he was following me. And

suicide was no longer a consideration. And finally, my husband is

grateful that I don’t wake him up as often in the middle of the

night with ear-piercing screams.

Within myself the healing had begun and peace had come at last.

Because of that rape kit, this man is off the streets for good. The

jury gave Norman Jimerson two life sentences plus 25 years without parole.

I sit here before you today as an example of the importance of

the evidence obtained from the rape kit. Because of my husband insisting that I go to the hospital, I did not miss my children’s college

graduation, I was present to watch my daughter walk down the

aisle in November, and just this past Saturday I watched as my

son exchanged vows with his new bride.

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I am not a public speaker by nature, and it takes every ounce

of courage that I can muster to be here, but I can tell you that I

count it both a privilege and an honor to be allowed this small part

in the furtherance of this cause. Any time a great tool such as this

is available and not used, I think that our society commits a crime

against its members. We must use the crime-solving capabilities of

this powerful tool to its fullest, and I pray that all of you will consider its importance to me and thousands of other victims like me.

Thank you.

[The prepared statement of Ms. Smith follows:]

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Mr. HORN. We thank you. It is riveting testimony, and we thank

you for taking the time to come here and share that experience, no

matter how horrible it is. But women all over America have had

just your experience, and obviously you speak well for the thousands of women that have gone through this. We thank you for

your coming to share that with us. Hopefully, your testimony will

get people to think more about these things and make sure that

we get the type of DNA and everything else that can be dealt with

to get these predators and put them away in prison forever. So,

thank you very much.

Would any of you have questions right now?

Mrs. MALONEY. I have a question, Mr. Chairman.

Mr. HORN. The gentlewoman from New York, Mrs. Maloney.

Mrs. MALONEY. Just on behalf of women and girls all over the

country, I would say the world, I want to thank you for your incredible testimony. It is very brave and very important that you

are here today. Your testimony put meaning behind the numbers.

It put meaning behind the numbers to show the human aspect, and

that is tremendously important. I know that many of us will be

even more inspired to develop every single tool we can to further

protect people.

One of your statements was very important. You said that every

time a rape kit is available and not used, society commits a crime.

And yet, I believe that these rape kits are not in every hospital,

nor are they uniform. And I would like to ask you, do you think

every hospital and medical center should have one of these rape

kits? And do you think there should be uniform rape kits that

would help our police officers solve the crimes?

Ms. SMITH. Absolutely. Because without the rape kit we would

have never been able to have the evidence that we needed to convict Norman Jimerson, because that was basically all we had was

the evidence from that rape kit. I would think that if we do it uniformly, then it would become common knowledge of how to use it

and when the different labs get that then they would know exactly

what they were looking at as opposed to a different kit from place

to place.

Mrs. MALONEY. Thank you for your testimony.

Mr. HORN. On the rape kit usage, in your experience, was that

done in a hospital with nurses or doctors?

Ms. SMITH. Unfortunately, mine was done in the hospital with a

doctor. But our hospital has now changed that in that we have

SANE nurses in place for which I am very grateful. That is a very

important program to have in place in every single hospital.

Mr. HORN. I am thinking of paramedics also and evidence. Do

you think these rape kits should be used by paramedics?

Ms. SMITH. Only if they are trained properly to use it, because

for a rape victim that is one of the first things that she has to go

through and the first contact that a rape victim has certainly has

a great impact on how she is going to process what has just happened to her. It can be a totally humiliating process to go through,

and if it is done wrong—and I believe that is why a lot of victims

do not come forward now is because we do not have the proper programs in place for that. So, I would say that only a very trained

paramedic should be given that.

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Mr. HORN. And certainly the doctors in the hospital usually

would be those on emergency duty. I think that the staffs on both

sides should take a look at some of these hospitals and are they

educated on how to best utilize this, because it is such a trauma

that you are going through when you get rolled into that emergency ward. I would just like to know if ever in medical school they

teach people about these things, because they are frightening.

The predator that went after you, what has happened?

Ms. SMITH. He is in the Red Onion Prison and he has been given

two life sentences plus 25 years with absolutely no chance of parole. He does have an appeal right now but it does not look like

there is any chance that anything will come of that.

Mr. HORN. Well, it is good to know that he is behind bars, that

is for sure.

The gentlewoman from Illinois?

Ms. SCHAKOWSKY. Thank you so much for your testimony. I know

it took a lot to do that, but, hopefully, it will result in having contributed a lot to changing things. I wanted to ask you, you said

that all you wanted to do was take a shower and not really forget

about it——

Ms. SMITH. Wash.

Ms. SCHAKOWSKY. Yes, wash it away. And your husband convinced you that it was important. I am sure that is the impulse of

most rape victims. I am wondering if, as painful as it might be, we

need to do a better job of convincing whoever might be in this horrible situation just how very important it is, and if you have any

suggestions of how we might be able to communicate that at that

terrible moment that the right choice is to go to the hospital and

make sure that evidence is collected?

Ms. SMITH. I think, of course, education would be the primary

factor in that. And, yes, I think that is very important. I think that

is one thing that the SANE program does, which is Sexual Assault

Nurse Examiners, because in letting people know that the program

is available, it lets people know that if you are sexually assaulted

that it is a one-on-one program where a nurse collects the evidence,

but that if the rape victim herself does not hear that, then maybe

her friend or whoever it is that she goes to will know that and they

can take her or convince her to go and have this done.

It is only education, and that is one reason why we decided to

go public with this is because rape is not something that the victims should feel guilt about, but yet it is the one crime where the

blame is placed on the victim. That is one reason that we decided

to be public with this. I believe that it is only as people will speak

out and stand up and say, ‘‘yes, I have been raped’’ that it will

make other victims able to go forth, go to the hospital and say this

did happen to me and I do want something done about this, and

take some of the fear and some of the guilt away from what has

happened to her.

Ms. SCHAKOWSKY. I wanted to ask you a little bit about the sense

of guilt and the fact that you said that you felt like now you were

vindicated and you were really believed. Was there reason, objective reason, I understand there were a lot of emotions going on, but

were you made to feel that maybe it wasn’t true, you were interroVerDate 11-MAY-2000 10:25 Apr 30, 2002 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 C:\DOCS\78050.TXT HGOVREF1 PsN: HGOVREF1
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gated in such a way that you felt that someone believed that it had

not happened?

Ms. SMITH. Not really. It was just basically something that we

all as victims tend to second-guess ourselves. But one of the things

that did make me feel that way was the questions that were asked

to me. I was asked the same questions over and over again, they

were just phrased a little differently. I felt as if they really were

not believing what I was saying, they were trying to kind of trip

me up to catch me in a lie is what I felt. Mind you, if I felt this

way, other victims probably felt it even more so, because this did

happen in my own community where my husband worked as a police officer, so I was family. So they were handling me with kid

gloves, so to speak. So I felt that if I felt this way, how much more

must it be that way for other victims who do not have that contact.

That was also a very deep concern of mine because I know that I

was handled very gently and so it really did bother me what other

victims might be going through.

Ms. SCHAKOWSKY. So even though the subject of this hearing is

DNA, I appreciate very much your sharing this and it can spill

over into other issues that we can consider as a body. Thank you

very much.

Ms. SMITH. Thank you.

Mr. HORN. Thank you. You mentioned the SANE program. What

does that stand for?

Ms. SMITH. Sexual Assault Nurse Examiners. They are trained

by a school out of our lab in Virginia to know how to do the physical collection of the evidence as well as handling those first emotional problems that a victim may have.

Mr. HORN. We thank you very much. You have given sufficient

testimony here, and if you want to stay, we would be delighted to

have you because the next panel will be on how the States and the

Federal Government try to get the DNA data so that people who

should be in jail are sent to jail. So feel free to stay the morning.

Mr. Scheck, attorney, director of the innocence project of the

Cardozo School of Law in New York.

STATEMENT OF BARRY SCHECK, ATTORNEY, DIRECTOR, THE

INNOCENCE PROJECT, CARDOZO SCHOOL OF LAW

Mr. SCHECK. Thank you very much. It is a privilege to be here.

Let me start by saying this is the second time I believe that I have

had the privilege to be with Mrs. Debbie Smith and hear what she

has to say. I want to emphasize two points right away. I am here

to tell you about priorities on how we can most efficiently do DNA

typing, deal with these backlogs, and there are two initial points

to be made that directly stem from what Debbie Smith told you

today. No. 1, every crime lab in this country, at the State and local

levels, have to have the capacity to do DNA typing on a rape kit

within 7 to 10 days after a crime like this is committed so they can

take the DNA profile of the assailant and put it in the databank

and see if it matches any other unsolved sexual assault that is

going on in the community. All laboratories do not have that capacity. I pick 7 to 10 days because that is the turnaround time in the

United Kingdom where they are getting far more hits than we are

linking unsolved cases to each other. That is No. 1.

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No. 2, and it is the second priority I mentioned in my testimony

that has been submitted, there are hundreds of thousands of rape

kits that are literally being thrown away in police labs and medical

examiners’ offices all across the United States. Our national DNA

Commission had a survey done, frankly, a quick and dirty survey,

and I mean no disrespect to the people that did it, that estimated

180,000 untyped sexual assault kits, rape kits throughout the country, but that is no doubt an underestimate. Literally, what is happening is that these cases are not being typed. They should be immediately typed and put in the system so, again, you will be able

to identify serial rapists, serial rapists/murders right away. And

yet, that has not happened.

Now how do I come to be so concerned about that, aside from

having heard Debbie Smith before or sitting as a commissioner on

the national DNA Commission. What you may not know is that I

and the co-Director of the Innocence Project, Peter Neufeld, actually serve as Commissioners of forensic science in the State of New

York. New York has a unique body called the Forensic Science Review Board. It is an independent group of professionals and crime

lab people, judges, and police officers that regulate our crime lab.

We passed this bill 6 years ago. And so we officially regulate our

crime labs and regulate the DNA databanks. And what I discovered wearing the hat of a commissioner of forensic science is that

in the New York City Medical Examiner’s Office alone, which only

governs New York City, we had 25,000 untyped sexual assault kits,

cases just like Debbie Smith’s. And literally what would happen is

when the 5-year statute of limitations would run, they would throw

away the rape kits. I went to the then police commissioner, Howard

Safer, somebody that Peter Neufeld and I sue on a regular basis,

police brutality cases—— Mr. HORN. With good cause.

Mr. SCHECK. We assume it. We represent Abner Nueva, who is

a crime victim. So we said to the commissioner you must stop this.

And to his great credit he said yes. That was 3 years ago and he

immediately put out for bid, trying to outsource it to private labs

because our State and local labs did not have the capacity, and effort to type these 25,000 rape kits. And even in the most aggressive

effort in the country to deal with this problem, we have only been

able to type 8,000 to this point in time.

But one of those is a very interesting case that I think has been

noted by others. We had this terrible sexual assault, I think Congresswoman Maloney mentioned it, of a producer that in the middle of the day was dragged into a vestibule area at Rockefeller Center near the NBC studios and sexually assaulted. The assailant in

that case, we were able to get his DNA, even though he was out

on parole or probation, type it, put it into the databank, and he

was apprehended, and I will explain why that matters.

What I would like to try to quickly go through with you are priorities. This is a subcommittee, part of a larger committee, that is

talking about efficiency in government. We can throw a lot of

money at this problem, and we should, we are woefully underfunded on the State, local, and national levels in terms of capacity

to do DNA testing, but it is critically important that we do this

funding now, because we are never going to make up all the deVerDate 11-MAY-2000 10:25 Apr 30, 2002 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 C:\DOCS\78050.TXT HGOVREF1 PsN: HGOVREF1
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mand for this, we do it intelligently so that we can prevent crimes

from being committed by apprehending the guilty assailants

quicker, we can prevent innocent people from being arrested, tried,

convicted, or, God forbid, executed, and there is more than enough

evidence of that, in a very efficient way. And we need your help

because some of the people that are about to testify before you,

whom I have known well and worked with for years, are in bureaucracies and they have their own problems dealing with all

kinds of officials and all kinds of pressures put upon them, and I

come before you, a law professor, right, a criminal defense lawyer,

somebody that serves as a commissioner, a public official, and I

must tell you that I do not owe anybody anything. So I think I can

speak pretty directly to some of these priorities. I ask you to query

my friends carefully about them and see why they cannot better

produce on these things.

So, No. 1 priority. You must have the capacity to type samples

in rape cases, in murder cases, and, frankly, burglaries and other

cases where you can do it right away, within 7 to 10 days after the

crime is committed. And what you must worry about, millions of

dollars are being put into reducing backlogs, is that you do not impair the capacities of the lab, indeed you have to get these labs to

type the new cases right away. I have seen this before—clean up

this backlog of somebody that is sitting in jail for the next 20 years,

a convicted offender, it is important to type that sample, that is

true, but the person is in prison, but it is more important to make

sure that the sample is typed in the case of the victim so that can

be put in the database and we can see if it is somebody else.

Let’s speak about a case in New York. We had a serial rapist;

17 cases were connected to each other, and it was not immediately

apparent to investigators that all 17 cases were related. It turned

out that this particular serial rapist usually wore a mask, and so

in most of these cases the victim could not make an identification

or even give a description for a sketch. In 1 of the 17 cases, and

we only knew they were related because we had DNA on unsolved

cases right after it was committed, 17 of them, in the 17 case the

victim was able to pull the mask off the assailant and give a sketch

that could then be distributed to police officers. This was instrumental in leading to this man’s capture. So you can see it is a powerful investigative tool.

So, No. 1, you must not under any circumstances impair the ability of these labs, indeed, you need to empower them, they do not

have the capacity right now, to do the new cases. That is No. 1.

No. 2, we have to deal with these old unsolved cases, these rape

kits before they are thrown away. Incidently, there is legislation

being proposed in State after State. There is a simple way to do

this to prevent the statute of limitations from running. First of all,

you should pass a statute in each State that says, and they are

doing it, you can get a John Doe warrant against a DNA profile of

an unsolved case where somebody has committed the crime, and

that tolls the statute of limitations. So if the statute of limitations

is 5 years or 7 years, as long as that John Doe warrant is on file,

you can pick that person up and prosecute them later. The model

bill which I submitted to you is one that I believe Speaker Sheldon

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Silver has proposed in New York because it helps with the backlog

issue.

What Speaker Silver proposed is you can get this John Doe warrant and we will extend the statute of limitations a year or two,

but we will also give additional money to our laboratories to type

these unsolved rape kits before the statute runs. It is a much better idea than just abolishing the statute of limitations, which,

frankly, serve good purposes to prevent people from being prosecuted on stale evidence. It should not be infinite. But that is the

way to do it. So you have these unsolved rape kits, unsolved homicides before the advent of DNA. We can go back now and get blood

stains, hairs, all kinds of evidence, type it and solve unsolved homicides. So that is a key priority.

A third priority ought to be post-conviction DNA testing. Now, as

Congresswoman Schakowsky noted, there is this Innocence Protection Act, sponsored by Delahunt and LaHood here in the House,

and I think a number of you are sponsors of that, and also in the

Senate by Senator Leahy and Gordon Smith. I urge you to get this

legislation passed this session. What it is going to do, just one of

its provisions, is mandate any State that wants to be part of the

DNA data banking system, and every State gets money and every

State wants to be, would have to pass a statute that said that an

inmate has a right to get post-conviction DNA testing if it would

raise a reasonable probability that they did not commit the crime.

Two States had this bill 5 or 6 years ago, New York and Illinois.

It is not a coincidence that New York and Illinois have the most

post-conviction DNA exonerations. Now we have bills passed, good

bills, in California, in Arizona, in Oklahoma. Frankly, there have

been some bad bills passed. Florida just passed a bill that was just

signed the other week. The bill says, OK, you can get a post-conviction DNA test but you have 2 years to do it. Now I can tell you,

because we have been doing these cases, that it takes far longer.

If you are an inmate in prison and you do not have any money, you

do not have a right to a lawyer, you do not have a lawyer, you have

to get transcripts, you have to find the evidence, 75 percent of the

time the evidence is lost or destroyed, you have to make a proper

presentation in court to get the DNA test under this statute. There

have been 10 people exonerated from death row with post-conviction DNA testing. All 10 of them would have been dead under the

Florida bill because they could not get the resources to make the

application within 2 years.

It is great to pass the Innocence Protection Act, but it is an unfunded mandate. What we have to have is an allocation of resources so that we can get some of these people into court so they

can get the DNA testing to prove their innocence. And I want to

emphasize that in so many of these cases, once we find the convicted offender, we also find the real perpetrator; hopefully before

that perpetrator commits more crimes.

I call to your attention, Mr. Putnam and others, to Florida. We

have only had one post-conviction DNA exoneration in Florida.

Frank Lee Smith, an inmate on death row, died trying to get the

DNA test because under Florida law he could not go into court to

get the DNA test. The prosecutor denied the DNA test, refused to

give it to him. He died in prison of cancer. The defense lawyers,

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we had maintained that there was a serial murder-rapist named

Eddie Lee Mosely who committed the crime that Smith had been

convicted and put on death row for committing. The day Al Gore

conceded, they leaked the fact that our friends at the FBI had done

a DNA test, after we had preserved the samples and prevented

them from being destroyed, showing that Frank Lee Smith was innocent and Eddie Lee Mosely had, in fact, committed that crime.

Some very wonderful detectives in the Ft. Lauderdale area began

developing evidence in another case of a man named Jerry Frank

Townsend. He had plead guilty ultimately to rape-murders, five of

them, two actually in Florida, to avoid the death penalty. He had

been convicted of three, two others in Miami he plead guilty to. All

five were committed by Eddie Lee Mosely, the serial offender. Jerry

Frank Townsend is a mentally retarded man who confessed to

these crimes that he did not commit.

There are others like that. And these are cases where if earlier

we had been able to look at these post-conviction cases we could

prevent other crimes from being committed, because frequently it

is serial offenders. It is a wider set of victims. It is the victims of

the crimes themselves and their families, and it is the inmates that

are innocent and their families that are victims of all of this.

We cannot have these unfunded mandates. I would suggest, we

have a network of law schools now that are voluntarily coming forward, way underfunded—come to our offices sometime, you will see

letters piled up to the ceilings that we have not even been able to

read—and very small amount of money from the Federal Government to fund projects run by law professors, some of whom were

former prosecutors or crime lab people. To try to get into this backlog would be very efficient and cost-effective.

Mr. HORN. Mr. Scheck, am I understanding this correctly that

New York has a 30-day waiting period in rape cases?

Mr. SCHECK. A 30-day waiting period?

Mr. HORN. A 30-day waiting period. I am just curious what that

means. Is there a 30-day waiting period in rape cases?

Mr. SCHECK. You mean before the testing can be done? I would

imagine the turnaround, I am not altogether sure, my colleagues

here might be able to be more specific about what it is. We have

different labs in the city of New York, we have the State lab, we

have them in Suffolk County. I cannot speak, and I would not want

to speak too quickly.

Mr. HORN. Well, we will ask them.

Mr. SCHECK. But I know that the turnaround—30 days would be

good compared to what is going on in many jurisdictions.

Now there is another thing that I really would ask you to question my colleagues about in law enforcement. I have never understood this, dealing with the issue of the backlog. There are 1 million people it is estimated that are on parole or probation whose

samples should be in the databank because they have committed

a violent felony, probably a rape or a homicide, but they are out

on supervised release, they are on parole or probation. They are

part of the backlog. We should be going out and getting their samples first.

I will tell you what happened in the State of New York. Because

we have this kind of unique forensic science commission and we

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regulate the DNA databank, we said to the State officials, look, we

know that you have a few hundred thousand samples that you

have got to type of convicted offenders who are in prison, but we

want you first to type the people that are on the street because

they are the ones that could go out and commit the crimes. So we

want the people on probation, the people on parole tested first. Initially, our officials came in and said that is too hard. It is much

too hard because we have to go out and find them, we have not

trained our people, it is much easier to go into the prisons where

they are already there and collect it from them. It is too hard, so

we will do those later. We said no, no, no, you have got to do those

first.

Now, this NBC case is a good example. Some people were complaining that this man was not captured soon enough. He had been

released from jail but he was forced to come in and give a sample

because he was on parole. And that is how he was located. It is 1

million people. Those should be the first people tested. Yet, when

my colleagues from NIJ and on our national DNA commission

sought to go and—I wanted them to say, listen, if you are going to

give money to the States, there ought to be conditional grants.

They ought to get more money if they say they are going to cleanup

the backlog by typing the old samples, the people on the street,

first rather than people in prison. Well, they say they would rather

not have the money than do that. Look, I am just a law professor.

I do not understand it. It makes no sense. It is completely backward. Maybe you can figure it out for me. But that is something

that should be done.

Obviously, we have to do the convicted offender backlog. There

are about 400,000 of them now it is estimated. What we did in New

York is that when they first come in we type them, right after they

are convicted, but everybody that is about to leave is typed before

they get on the street. And that makes sense. If you are to do it,

you should do it intelligently. The last people to be typed, frankly,

are the ones that are doing 20 to 40 years. First get the people on

the street.

Another thing, and this would be my final point to you, one of

the things that I know some of my friends at the FBI want to testify about, and I know you noted it in opening remarks, there is

a new kind of DNA test called mitochondrial DNA testing. This is

an assay that allows DNA to be taken directly from the shaft of

the hair. With the other kinds of DNA testing that we use for the

databank, the short tan repeat [STR], you would need a fleshy root

of the hair.

What we are finding is that microscopic hair comparisons is, in

my judgment, junk forensic science. Repeatedly, it can be shown

that this kind of comparison between an unknown hair and known

hairs is flawed and wrong. Maybe my friends from the FBI will not

like that much. But it has been flawed, frankly, on both inclusions

and on exclusions that we can show using this mitochondrial DNA

testing. But what they will tell you I am sure is that even when

they have a good hair person from the FBI, Agent Dietrick, when

he looks at an old case where somebody was convicted on microscopic hair comparison testimony and Agent Dietrick says, ‘‘OK, I

agree with the examiner, this is a match.’’ when they finally go to

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do mitochondrial testing, 5 to 10 percent of the time the mito

shows that the inclusion is inaccurate. We now have the capacity

to look at the these hair cases and what we have found is that

when we calculated it for 74 of the post-conviction exonerations— since our book ‘‘Actual Innocence’’ came out in February there is

an exoneration every 18 days, so, you know, how to keep up with

it—I have not calculated all the hairs, but out of the 74, 33 had

microscopic hair comparisons.

Now this is going to be a big problem and you have to find more

money for mito testing, whether it is increasing the capacity of the

FBI, or outsourcing to other private laboratories. Right now in

Oklahoma there is a scandal. There is a chemist named Joyce

Gilchrest who was known for being a forensic scientist of questionable repute, even by her peers. The FBI has gone in and looked at

eight of her cases and in five instances were very troubled by the

results. Now 1,400 of her cases in Oklahoma have been isolated

and there will be certainly hundreds that will have to be reviewed.

The State of Oklahoma alone, just for Gilchrest cases, has allocated

$700,000 to do DNA testing on these old cases to see if we can correct injustices.

I am telling you right now that even though more attention

should have been paid to Joyce Gilchrest as a forensic scientist,

this same kind of situation, the problems, the limits of microscopic

hair comparison in old cases, it is in every State. It is in every

State. And it is a comparatively more expensive test because it can

cost presently $1,000, $2,000 per hair. There may be ways that our

friends will suggest of funding some research to do some assays

that are quicker screening procedures that will bring down the

cost. But this is another priority that you are going to have to look

at.

So in closing, what I really urge this committee to do is look for

ways to prioritize. We are not going to have as much money as is

necessary, frankly, to do everything. But if you can do the new

cases; you certainly can do the cases of these unsolved rape kits,

do those right away, that is basic justice; if you can do the basic

justice of allowing these people who are rotting away in jail or on

death row to get their chance to prove their innocence, which will

also find the real perpetrator in many instances before they commit

more crimes; if you go and get the old samples, the people that are

on the street first; if you do all those things or find ways to stimulate our friends here to do it, it would be a tremendous service and

really in the name of efficiency, which, after all, I guess this subcommittee is all about. Thank you.

[The prepared statement of Mr. Scheck follows:]

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Mr. HORN. We thank you.

Do any of my colleagues have questions at this time? Does the

gentleman from Florida have any questions?

Mr. PUTNAM. Thank you, Mr. Chairman. Mr. Scheck, you summarized it there at the end and if you would please restate your

prioritization, your hierarchy of testing, begin with death row, next

hit those people who are on the streets with parole/probation. Are

those your top two?

Mr. SCHECK. I would hesitate. No. 1, and I really want to emphasize this, crimes that are now being committed. A victim of a sexual assault, there is no excuse for not typing that case right away

to see whether or not it matches other unsolved cases that lead to

the investigation and apprehension of that individual. We must

make sure that the labs have the capacity to do that. It would be

a terrible mistake, and this is my fear, that in the name of cleaning

up backlog the labs do not have that capacity. So we have to make

sure that they have that capacity, and I assure you they do not

have it now in various different States. Some States do. Florida is

pretty good, Virginia has more capacity. But even in Virginia,

Profoare complains all the time that he has these problems with

the new cases. So I would say you have to make sure that is done

first.

I would say the old unsolved cases, and I include within that the

post-conviction cases, because, in a sense, if somebody is saying I

am innocent, please test my case, that is one that is in question

if a test could make a difference in the case and no DNA was ever

done. So there is that class of cases. And these rape kits. The old

unsolved cases, there is no excuse for not doing those right away.

Then, if you are going into the backlog issue, the first backlogs

that I would do are the people that are on parole or probation. It

is more important to get them, they are on the street. These individuals might commit new crimes. The statutes say their samples

should be in the databank. The States are going to say to you, ‘‘Administratively, it is just too hard to find my parolee, to find my probationer and bring them back and have them just take a swab, a

buckle swab, roll it in the mouth, if that is the method of collection,

and give it to the lab to do DNA typing.’’ I find that ridiculous.

That is what my very well-intentioned colleagues are being told

every time that they approach this State authority. Some people

are even saying to them, ‘‘We will not take your money if that is

the condition. It is too hard.’’

Mr. PUTNAM. Let me change gears with you. What would you say

to those who are concerned about the privacy issues? How would

you deal with that aspect of this?

Mr. SCHECK. Well, privacy issues is a coming concern. Right now,

as far as the Federal system, the CODIS system is concerned and

the DNA Identification Act of 1992—I know because I testified

about it—that we had privacy protections built-in. That is to say,

you can only use the DNA profiles for identifying missing persons,

identifying unknown crime samples, and matching convicted offenders.

Where the privacy issue is coming to bear now is that as State

and local authorities develop their own capacity to do DNA testing,

they are creating parallel databanks; that is to say, you might call

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it a ‘‘Usual Suspects Data bank.’’ I think everyone in our DNA commission was quite concerned that when Cecelia Krause, a wonderful examiner from Florida, put up an anonymous note on a list

server asking crime lab examiners, ‘‘When you are creating your

own computerized databank that is outside of the CODIS system,

what kind of samples do you put in there?’’ Some of them actually

e-mailed back ‘‘We put in the samples from rape victims, or elimination samples, or suspect samples.’’ So, think about it. Somebody

is the victim of a crime, this sample is taken and put into a computerized databank because the police think, well, maybe this victim is a drug offender, or maybe it is suspicious, or let’s just keep

it around.

I think most sensible crime-lab people are not engaged in this

practice, but some were. That whole development of State and local

databanks is unregulated for the most part. There are no privacy

restrictions built into it. I think that we are heading for some real

trouble there and that States better get their act together and regulate that and put very, very strict privacy restrictions on it. I am

a very big proponent of DNA testing and DNA databank conducted

correctly. But I think there is a healthy skepticism out there that

if the Government has got your DNA, God knows what they are

going to do with it. And I do not think that sometimes my friends

in law enforcement are acting in their own enlightened self-interest. They should put more privacy protections on themselves so

that we do not have some kind of civil liberties disaster where you

get a lot of opposition to this because people are fearful that insufficient privacy protections are in place.

Mr. PUTNAM. Unlike a finger print, DNA is the key to the kingdom. It is an infinitesimally more informative piece of information

about any human being. So, to the extent that as capacity grows

and technology catches up with the backlog and we begin to expand

these to other crimes, where down the hierarchy from rapists and

murders do you take these DNA samples? Do you take them from

forcible entry suspects and convicted felons, DUI offenders, juvenile

offenders. Where in the hierarchy do you stop taking DNA samples?

Mr. SCHECK. Well, I think that burglaries, I have to say, are a

very important area to be doing DNA typing. In truth, and I know

some of the subsequent witnesses are going to talk about it, we

really have to train law enforcement on how to collect the evidence

correctly and make sure they do not contaminate it and get confounding results. But burglaries are a very important area.

In the United Kingdom, they really specialize in typing in burglaries. So what you will find is that a perpetrator might leave

blood at the point of forced entry, might drink from this cup in the

course of the burglary and leave the cup or the beer bottle there

and you can swab that, get the DNA pattern, and you can find such

offenders. They do link up very often with even more serious offenses. So burglary is something to look at.

The more you expand the number of categories that are included

the bigger the backlogs get. Everybody is going to tell you that.

States are moving, at first they were pretty much just limiting it

to sexual assaults and murder, now, quite rationally, they are expanding it to even as far as all felonies. But, interestingly enough,

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our national DNA commission recommended to the Attorney General that States not go to the point where they collect DNA from

people at arrest. I have concerns about it for civil liberties reasons,

some of my colleagues share them, some of them were less concerned about the civil liberties reason. But for practical purposes,

everyone on our commission agreed that it would be a nightmare.

The States absolutely cannot cope with being forced to type everybody at arrest, because right now they have a million old samples of people who have committed murders and rapes who are on

the streets that they are not typing, they say we cannot do it, they

are not able to type a murder or rape within 7 to 10 days after the

crime is committed, they have other backlogs, they cannot do postconviction DNA testing in great numbers. If you do all of that, you

spend a few billion solving that problem, then come back and talk

to me about arrests and we can discuss that issue.

A lot of this is really common sense. And if you can get the priorities right, you are not only going to protect the innocent, but you

are really going to protect victims in a profound way. It is common

sense. It is good law enforcement. It is cost-effective. The challenge

to the committee is to get the bureaucracies to respond to the priorities more sensitively.

Mr. PUTNAM. Thank you. My time has expired.

Mr. HORN. Mrs. Maloney.

Mrs. MALONEY. Mr. Chairman, I do have a couple of questions

for Mr. Scheck. I particularly wanted to welcome him from the

great State of New York. And I wanted to ask, from your experience and your work, Mr. Scheck, do you think that there is a need

for a standardized victim physical evidence recovery kit? Apparently some hospitals do not have them and there is not a standard.

Do you believe we need a Federal standard?

Mr. SCHECK. There is no question I think that we do need a

standard. I know that Dr. Henry Lee and Robert Ganzlen have

issued a very interesting report to NIJ about these rape kits, because the rape kit is the beginning of everything. If you have a sensitive and intelligent collection of the evidence, just think about a

bite mark—I will give you a case of a client we have in New York.

A man named O’Donnell was convicted and sentenced to prison in

a sexual assault case. But by the intelligent collection of the samples, they were able to get saliva from the bite-mark and do fingernail scrapings from the victim when she scratched and struggled

with her assailant. DNA typing of the saliva from the bite-mark

and the fingernail scrapings matched the real assailant whose profile is not in the databank and exonerated Mr. O’Donnell, who I

think did about 7 or 8 years. But it was only because of the excellent collection in the rape kit and the way that was handled that

we were able to solve the crime. So it all begins with the rape kit

and that is absolutely critical, Congresswoman.

Mrs. MALONEY. You mentioned that we have limited resources,

and we do. Where should we put our limited resources; what is the

top priority?

Mr. SCHECK. Again, the ones I mentioned, and certainly the rape

kit is certainly one of them. I do not know of one hospital or one

law enforcement agency today that should not be using it in some

fashion or form. It would be really intelligent and cost-effective to

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make sure that everybody was using a similar one so that we could

adequately preserve and collect the evidence.

Mrs. MALONEY. If you could make one legislative change, what

would it be?

Mr. SCHECK. Boy, that is a tough one. This would be one of them.

And certainly everything concerning the capacity to type the unsolved rape kits and the post-conviction ones. I would consider

those unsolved very high on the list.

Mrs. MALONEY. Thank you. I have further questions, but I would

like to hear from the next witnesses. Thank you.

Mr. HORN. Both the majority and the minority staff can pursue

questions with all of this and put it in the record at this point.

Without objection, so ordered.

We are going to have to move on now. You are certainly welcome

to stay, Mr. Scheck, if you would.

We have eight witnesses on Panel II. Mr. Adams, Mr. Boyd, Mr.

Asplen, Mr. Lawlor, Mr. Coonrod, Dr. Downs, Mr. Conley, and Mr.

Lothridge, if you would please come forward.

[Witnesses sworn.]

Mr. HORN. The clerk will note that all of them have affirmed.

We are going to start with Mr. Dwight Adams. He is Deputy Assistant Director of the Laboratory Division of the Federal Bureau

of Investigation. Mr. Adams and others have given us really marvelous documents on this. Those are all automatically in. And once

I call on you, the full text is in and we would like you to sort of

summarize it and give us the high points.

Mr. Adams, welcome.

STATEMENTS OF DWIGHT E. ADAMS, DEPUTY ASSISTANT DIRECTOR, LABORATORY DIVISION, FEDERAL BUREAU OF INVESTIGATION; ACCOMPANIED BY DAVID BOYD, DEPUTY DIRECTOR, NATIONAL INSTITUTE OF JUSTICE; CHRISTOPHER

ASPLEN, EXECUTIVE DIRECTOR, NATIONAL COMMISSION ON

THE FUTURE OF DNA EVIDENCE; MICHAEL LAWLOR, STATE

REPRESENTATIVE, CONNECTICUT GENERAL ASSEMBLY, ON

BEHALF OF THE NATIONAL CONFERENCE OF STATE LEGISLATORS; KEITH COONROD, CHAIR, CONSORTIUM OF FORENSIC SCIENCE ORGANIZATIONS, NEW YORK STATE POLICE

FORENSIC INVESTIGATION CENTER; JAMIE DOWNS, DIRECTOR, CHIEF MEDICAL EXAMINER, ALABAMA DEPARTMENT

OF FORENSIC SCIENCE; ROBERT S. CONLEY, CHAIRMAN,

AMERICAN SOCIETY OF CRIME LABORATORY DIRECTORS/

LABORATORY ACCREDITATION BOARD AND DIRECTOR OF

THE INDIANA STATE POLICE LABORATORY SYSTEM; KEVIN

L. LOTHRIDGE, DEPUTY DIRECTOR, DIRECTOR OF STRATEGIC DEVELOPMENT, NATIONAL FORENSIC SCIENCE TECHNOLOGY CENTER

Mr. ADAMS. Thank you, Mr. Chairman, members of the subcommittee, for the opportunity to speak to you about a few of the

FBI’s experiences in working with local, State, and Federal agencies to implement forensic DNA analysis and our Combined DNA

Index System [CODIS].

CODIS began in 1990 as a pilot project involving 12 State and

local forensic laboratories. During the initial testing phases, the

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comments and observations of those original State and local laboratories helped to steer the course for CODIS today. Before each upgrade is implemented in CODIS, those State and local laboratories

have an opportunity to serve as beta test sites and continue to assist us today in ensuring that the software that we implement is

responsive to their needs as users. Without these collaborative efforts by these State and local laboratories, CODIS would not

achieve the success that you read about in the papers every day.

CODIS is currently installed in 137 laboratories in 47 States,

and another 24 laboratories in 12 countries internationally. The

CODIS software enables State and local forensic laboratories to exchange and compare DNA profiles electronically, thereby linking

serial violent crimes to each other and identifying suspects by

matching DNA from crime scenes to convicted offenders. The FBI

laboratory continues to provide CODIS software, installation, training, and user support at no charge to Federal, State, and local laboratories.

The concept behind CODIS is to create a database of States’ convicted offender profiles and use it to solve violent crimes for which

there are no suspects. As you know, all 50 States have DNA database laws that cover a wide variety of criminal offenses. All States

collect DNA samples from offenders convicted of sex offenses.

The overwhelming majority of States have expanded beyond

their scope of the original laws which covered just sex offenses. In

fact, our research indicates that now only three States cover only

sex offenders. I have attached a chart of qualifying offenses by

States to my written statement. Of particular note is the fact that

10 States are now authorized to collect from all of their felony offenders, and it looks like another State, Texas, will soon be added

to that group. We believe that eventually all States will be collecting from all convicted felony offenders. So far this year proposals

to expand the qualifying offenses has been introduced in 30 State

legislatures, with well over half of these proposals to include felony

offenders.

State legislation serves as another example of how Federal and

State agencies have worked together to implement DNA database

programs. Beginning with the issuance of legislative guidelines in

1991, the FBI laboratory has provided technical assistance in the

form of briefings on CODIS, review of draft legislation, and testimony before legislative committees to assist States in enacting

DNA database legislation.

In order to plan for CODIS in the future, the FBI has observed

the implementation of these database programs and has learned

from each of their experiences. We realize from the steady expansion of State laws that CODIS of the future will need to quickly

and efficiently search millions of DNA profiles and provide a platform that is less costly and more easily maintained by both those

participating States as well as the FBI. We have been working toward those CODIS enhancements. For example, the University of

Tennessee has been developing a matching algorithm that can

search millions of DNA profiles in minutes. We could not have

reached that point without the assistance of the Florida Department of Law Enforcement because it is they who test that new

search engine for us. With recognition of DNA as a powerful identiVerDate 11-MAY-2000 10:25 Apr 30, 2002 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 C:\DOCS\78050.TXT HGOVREF1 PsN: HGOVREF1
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fication tool, as evidenced by its use in both solving and reviewing

cases from past decades, DNA databases are becoming an integral

component of law enforcement’s arsenal.

One final example of cooperation among local, State, and Federal

laboratories, before I conclude, as well as a suggestion for an area

of future collaboration. As the PCR-based technologies were being

introduced into forensic laboratories across the country, the FBI realized that standards would need to be established for this new

technology, as had been done previously for the earlier technology.

A criteria that is crucial to the proper use of DNA database implementation is the use of consistent technologies. We knew that we

would have to establish core loci for the new technology in order

for the national DNA database to be successful.

The FBI convened a group of 21 Federal, State, and local authorities, as well as international forensic laboratories to validate

what are known as the STR loci for use in CODIS. The FBI provided the samples and kits and reagents to all of these participating laboratories in order for them to validate the use of STR analysis. After many months of testing, the participating laboratories

recommended 13 STR loci for use in CODIS. This recommendation

was adopted by the FBI and is known as the 13 Core CODIS Loci.

A future and yet untapped area that would significantly benefit

from collaboration between local, State, and Federal laboratories

was mentioned earlier by Mr. Scheck, that involves mitochondrial

DNA technology. Certain tissues like hair, bones, and teeth have

little or no nuclear DNA but can often be successfully typed using

mitochondrial DNA technologies. Biological evidence recovered

from missing persons is often in advanced stages of decomposition

with little or no nuclear DNA. But mitochondrial DNA can get results.

After many years of research and validation, the FBI laboratory

implemented testing using mitochondrial DNA in June 1996. To

date, we have completed nearly 700 cases. As its success and admissibility in the courts has grown, demands for its use have also

grown. But those demands exceed the FBI laboratory’s current or

likely future capabilities. Having anticipated the need for other forensic laboratories to develop their own mitochondrial DNA capabilities, we began a training program in 1998 whereby we were

training State and local laboratories to use this technology.

As you know, CODIS includes a missing persons index which can

match the DNA profiles using mitochondrial DNA results. This

index, however, contains very little DNA data because the FBI laboratory remains the only public crime laboratory conducting

mitochondrial testing. This is an area ripe for collaboration between Federal, State, and local laboratories. One solution might be

a nationwide network of six to eight State and local forensic laboratories that could provide mitochondrial analysis to the criminal justice agencies across the country. The FBI laboratory could provide

administration for the network, train the personnel, and ensure

audit adherences to the quality assurance standards. The FBI is

committed to support the CODIS program and to continue these

beneficial collaborations with Federal, State, and local forensic laboratories in implementing DNA technologies.

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One last comment. You heard the very poignant testimony of

Mrs. Smith this morning talking about how the use of DNA and

the use of CODIS has brought her life back to her once again. That

has happened countless thousands of times across the Nation. But

I am here to tell you that there are also thousands and thousands

of victims whose crimes have not been solved, but they have hope,

they have hope because this technology is out there, it is being

used, but it could be used more successfully. Thank you.

[The prepared statement of Mr. Adams follows:]

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Mr. HORN. Thank you very much. That was a very useful statement.

We now have Dr. Boyd, who is the Deputy Director of the National Institute of Justice. We are delighted to have you with us

this morning.

Mr. BOYD. Thank you, Mr. Chairman, and thank you and the

members of the committee for this opportunity to testify before you

today. My office is the science and technology component of the National Institute of Justice, the research and evaluation arm of the

Department of Justice.

When NIJ first undertook to conduct research on DNA identification technology in the mid-1980’s it was a very new field, barely

known, and not at all used in crime laboratories in the United

States. Over the next 11 years, with a modest research and development investment of about $5 million, NIJ managed to fund wholly or in part every significant advance in DNA identification technology in the United States.

Almost immediately after a former director brought DNA analysis methods from the United Kingdom to the United States in the

mid-1980’s, two private laboratories picked up the technology, followed by Virginia, Florida, and Minnesota, and then by the FBI.

Which meant that by 1989 there were only four DNA capable crime

laboratories and two private DNA laboratories in the United

States. Seven years later when the NIJ began the DNA laboratory

improvement program, there were still fewer than a dozen crime

laboratories in the United States capable of doing DNA analysis.

But today there are more than 130 laboratories in all 50 States capable of analyzing forensic DNA evidence.

NIJ scientists work closely with the forensic community to provide them with the tools they need to work more efficiently and

economically, and funded the development of accreditation and proficiency testing programs through the American Academy of Forensic Sciences and the American Society of Crime Laboratory Directors. This year we have managed to find a better way to fund the

analysis of DNA backlog samples so that every DNA dollar will buy

about 30 percent more DNA samples this year than last, and will

allow us to support the analysis of DNA samples in States with

backlogs too small to have been economically acceptable before.

Working with the National Institute of Standards and Technology, we developed the reference materials kit now used in nearly every DNA capable laboratory in the United States to ensure

consistency of analysis and reliability of results. In 1996, NIJ proposed, established, and funded the National Commission on the Future of DNA Evidence, about which you will hear more when Chris

Asplen testifies. Much of the impetus for a number of the congressional, administration, and State initiatives, including the recent

reprogramming of $25 million of asset forfeiture money, has arisen

from the work of this commission.

We are working with the forensic community and a consortium

of universities to identify the essential components of an acceptable

curriculum for a degree in the forensic sciences, because laboratory

directors tell us they have no confidence that someone with a forensic science degree actually has an adequate knowledge of the forensic sciences.

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The forensic DNA research and development program continues

to provide enhancements to existing methods, techniques, and technologies, and to create new tools for the future of DNA evidence.

Current projects aimed to reduce the risk of loss of crucial evidence

to equipment failures; to develop a mitochondrial DNA screening

method that allows labs to examine old, degraded, or very small

evidence samples without resorting to expensive and technically demanding DNA sequencing methods; to develop high through-put,

low-cost mass spectrometry instrumentation; and to exploit

nanotechnology for forensic applications. We expect the first forensic nanotechnology project, a DNA chip with all 13 of the required

genetic markers for databasing, will be in the hands of practitioners for evaluation by the end of this year. This inexpensive chip

can produce a reliable result in under 5 minutes instead of the several hours currently required, thus saving thousands of analyst

years of productivity. This chip may even eventually offer new

ways to use DNA earlier in investigations.

Unfortunately, as a recent Rand report notes, the laboratories

are so overwhelmed by a lack of human resources that infusion of

new technology is incredibly difficult at best. It is therefore imperative that we work to create an environment where crime laboratories can function beyond case triage and start performing the

work that will save the entire criminal justice system time and resources. It is that critical investigative stage where forensic analysis could rule out suspects, direct leads with real data, and help

solve crimes more quickly and more accurately than can canvassing

and eye witness interviews that require the use of already overburdened investigators. Supporting the full modernization and upgrading of our Nation’s crime laboratories means more than just saving

time and money. It means saving lives, stopping crimes, and promoting public safety in a very real, tangible way.

We believe we have made great progress in enhancing the ability

of public crime labs to analyze forensic DNA evidence. But we also

believe that we have only just begun to realize the full potential

of this power technology.

I would be happy to answer any questions you might have.

[The prepared statement of Mr. Boyd follows:]

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Mr. HORN. Thank you very much. And I note in your testimony

where you say that the National Commission on the Future of

DNA Evidence has 22 nationally renowned scientists, attorneys, jurists, academics, bioethicists, victims advocates, and members of

law enforcement and you have come to the conclusion that there

is a backlog of approximately 750,000 collected but unanalyzed convicted offender samples. So that is something we really have to

deal with.

We now go to the next gentlemen, Mr. Asplen, executive director,

National Commission on the Future of DNA Evidence and assistant U.S. attorney.

Mr. ASPLEN. Thank you, Mr. Chairman, and other members of

the subcommittee. I greatly appreciate the opportunity to be here

today.

In many respects, how efficient and effective we are at integrating DNA technology into our criminal justice system has a direct

effect on how safe our streets and neighborhoods are, what crimes

we solve, and ultimately what crimes we prevent. I look forward

to sharing with you a bit of the national perspective as observed

by the commission.

The commission was established in 1998 by the Department of

Justice and has as its mission the maximization of the value of

DNA technology in the criminal justice system. The commission’s

22 scientific, ethics, and legal experts, as well as over 50 commission working group members have considered a broad range of

issues arising from the use of DNA. I will take this opportunity to

discuss two areas which I believe pertain most directly to the issue

of efficiency—law enforcement training and education, and database backlogs.

One of the clearest impediments to the effective and efficient use

of DNA is law enforcement’s limited training regarding how to

properly identify, preserve, and collect biological material that may

yield a DNA profile of a perpetrator. Significantly limited training

resources, sparingly applied to a complex and ever-changing and

improving technology, often results in a failure to take full advantage of the power of DNA. Police departments are often forced to

choose, for example, between essentials like bulletproof vests and

the education necessary to prevent the contamination of evidence.

All too often important biological evidence is missed or contaminated because first responding officers are not aware of the potential to find DNA on the saliva of a cigarette butt or the invisible

skin cells left on the handle of a murdering baseball bat.

Recognizing law enforcement’s need, the commission developed a

number of training tools to educate the entire law enforcement

community. The immediate success of, and demand for these materials is testament to law enforcement’s desire to take full advantage of DNA.

The first tool developed by the commission was the pamphlet

‘‘What Every Law Enforcement Officer Should Know About DNA

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Evidence,’’ and this pamphlet will be provided to all of the subcommittee members and all the committee members as well as the

CD-ROMs.

Mr. HORN. That will be put in the record at this point.

Mr. ASPLEN. Thank you, Mr. Chairman.

[The information referred to follows:]

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Mr. ASPLEN. The pamphlet explains the biology of DNA, the

CODIS database, contamination, and lists examples of evidence

that may contain a perpetrator’s DNA. Because the first printing

run of 1 million copies was depleted in 5 months, NIJ committed

to another 500,000 copies, totaling 1.5 million. The pamphlet was

then converted into two interactive CD-ROMs. NIJ is already receiving State requests to provide one to every officer. Our initial

supply of CD-ROMs, however, is a limited 124,000 for both.

The tangible benefits of this educational tool, particularly the

pamphlet, were quickly made apparent. Within 6 months a rapehomicide was solved directly as a result of that pamphlet. Authorities in Texas investigating the strangulation/rape homicide of a

woman sent the cord used to strangle the victim to the laboratory

specifically for DNA testing. Now while the cord would have been

collected as evidence in the ordinary course of the investigation,

this time it was submitted for DNA analysis because one of the investigators read the pamphlet identifying ligatures as potential

sources of DNA. After a match to the perpetrator, it was determined that the suspect, in an attempt to avoid capture by DNA,

had worn not only a condom but also rubber gloves. However, when

struggling with his victim in the process of strangling her, one

hand was required to hold her down while the other hand grabbed

the cord wrapped around her neck. The only thing left to pull the

other end tight enough to kill his victim was his mouth, thereby

depositing saliva and thus his DNA on that cord. He was subsequently linked to several other murders.

The pamphlet’s success is illustrative of two important points.

The first is the tremendous need by law enforcement for these

kinds of training materials. When available and economically feasible, law enforcement has taken advantage of educational opportunities. The second, however, is the important role the Federal Government can, and did, play in improving the efficiency and effectiveness of DNA through education.

Now effective DNA database utilization is at its very core all

about efficiency. Absent the analysis of a crime scene DNA sample

and its comparison to the convicted offender database, crimes are

solved in the traditional fashion. Manpower is used to track down

leads and establish an array of suspects. Each suspect must be examined and investigated, which uses valuable financial and human

resources. The time and money spent on every wrong suspect is

time and money wasted when a rapidly analyzed crime scene sample run through the database could potentially solve the case.

Our use of DNA technology only becomes more effective and efficient as we move the point of analysis closer to the time the crime

was committed. A crime scene sample that takes 6 months to analyze, and under current circumstances, please understand 6 months

is a relatively quick turnaround time, that means six more months

of human and financial costs—six more months of time and money

tracking down suspects who are the wrong suspects, six more

months of innocent people being caught in a web of suspicion that,

even if they ultimately are not arrested, carry a life-long stigma by

nature of the investigation, and every day crimes are committed by

individuals who could be arrested by DNA technology for previous

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crimes but are not because of the forensic and convicted offender

backlogs and because of the lack of laboratory infrastructure.

Our success at optimizing DNA technology will depend on our

commitment to law enforcement and our forensic laboratories. The

number of lives we save from victimization will be in direct relation

to law enforcement’s ability to identify, preserve, and collect the

evidence; and our laboratories’ ability to quickly analyze that evidence and enter that profile into the DNA database.

Again, I appreciate the opportunity to be here today. I look forward to any questions that you might have.

[The prepared statement of Mr. Asplen follows:]

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Mr. HORN. Thank you very much.

Our next presenter is the Honorable Michael Lawlor, State Representative, Connecticut General Assembly, who is coming here

representing the National Conference of State Legislatures; that is

all 50 States.

Mr. LAWLOR. Plus a few Territories, Mr. Chairman.

Mr. HORN. That is correct.

Mr. LAWLOR. Good morning, Mr. Chairman. Thanks to you and

Representative Maloney, I know both of you agreed that the NCSL

was an appropriate group to have at the table this afternoon, and

I appreciate the opportunity on their behalf. Let me just indicate,

since, like you, I am an elected official, I represent East Haven and

the Short Beach part of Bramford in the Connecticut Legislature

and I think they would be happy to hear me say that. But more

importantly, I chair the Judiciary Committee in our legislature,

and for the past 2 years I have been the chair of the Law and Justice Committee of the National Conference of State Legislatures,

which is our policymaking board.

Mr. Chairman, 10 years ago when DNA as an issue in the criminal justice system first emerged on the scene, I think many of my

colleagues were nervous about the implications of this new concept.

But I think most of the concerns and really most of the philosophical objections to this process have faded away and now we are left

with the practical aspects of this. I would like to highlight a few

of the statistics that are included in my written testimony. But I

would encourage you to take a look at that as well since I really

do not have time to get to all of them.

As has already been pointed out, all 50 States since 1994 have

required that all convicted sex offenders provide DNA samples to

be catalogued. In addition to that, 34 States require persons convicted of many other violent felonies to provide samples; 26 States

have a similar requirement for juvenile offenders; 18 States are

now on-line with the CODIS system, as I understand it; and just

last year 9 States have added a wide variety of new offenses to the

list of crimes conviction for which require a sample to be provided.

New York, for example, last year went from 21 crimes to 107

crimes.

I think we have already talked about the practical implications

of those policy changes. It is extraordinarily expensive and complicated to ensure that, notwithstanding the law requiring it, the

system actually does collect those samples and properly catalogues

them. In addition, Alaska, Colorado, and Florida have extended the

requirement to submit DNA samples to certain probationers, with

Colorado and Florida also adding burglary to the list of offenses for

which a DNA sample is required. In West Virginia, enactment adds

to the list offenses that include extortion, involuntary manslaughter, burglary, counterfeiting, certain larceny and arson

crimes. In New Jersey, my colleagues have added homicide, assault, kidnapping, and luring offenses committed by adults or juveniles. California will collect samples from qualifying offenders who

are convicted in other States. And Georgia law expanded the list

of sex crimes that require a sample. Other States made procedural

changes in collection of samples. Among them, measures in Arizona, Colorado, Georgia, and Iowa requiring that samples be colVerDate 11-MAY-2000 10:25 Apr 30, 2002 Jkt 000000 PO 00000 Frm 00098 Fmt 6633 Sfmt 6633 C:\DOCS\78050.TXT HGOVREF1 PsN: HGOVREF1
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lected from qualifying offenders before they are released from custody.

I think every State is in essence heading in that direction. That

is the important thing that I wanted to emphasize today. In particular in my State, in Connecticut we have been collecting samples

from sex offenders for a long time. We are also blessed with the

leadership of Dr. Henry Lee, who has already been mentioned here

today, who is the head of our crime lab in Connecticut and is our

former commissioner of public safety, and also of O.J. fame. I think

everyone knows Dr. Lee. But he has really been the spiritual leader for this concept in Connecticut and he has convinced many skeptical colleagues of mine that this is as important for victims as it

is for offenders who may be wrongfully convicted.

Just last year, in fact, with this in mind, Connecticut retroactively extended backward its statute of limitation for sex offenses, reaching back 20 years to the advent of DNA as a technology, to ensure that persons, where these crimes were reported

in a timely fashion to the police, if they are apprehended now as

a result of a DNA identification, the prosecution can go forward

with or without a John Doe warrant. I think that is an important

change. And at the same time, in the same bill, Connecticut made

it clear that we would no longer have a limitation on a request for

a new trial where the basis for that request is new DNA evidence.

In other cases there is a 3-year limitation on the time for which

people can request a new trial after conviction.

This year Connecticut considered, and our session has just

ended, this year we considered extending the requirement of collecting DNA to all convicted felons, which has been discussed here

earlier. That, unfortunately, fell by the wayside. It is a tight budget

year in Connecticut, as it is in many States, but our fiscal note on

that proposal indicated it would cost $552,000 to test just the 4,700

offenders currently incarcerated in our State, and that is a half a

million dollars we just did not have to spend. It may not seem like

a lot of money to you, but in a tight budget which we are experiencing in our State, and that is Connecticut, the wealthiest State in

the Nation, it is actually a problem. So we would welcome some

Federal assistance in that regard.

Mr. Chairman, the jurisdiction of this committee is intergovernmental affairs. I think that is a topic that the National Conference

of State Legislatures is very concerned about. I want to mention a

couple of considerations which I hope you will make as you consider the concepts being discussed today.

First of all, keep in mind that flexibility ought to be the hallmark

of any policy change on the Federal level, such as the ones that are

being discussed today.

Keep in mind that sex offender statutes, probation, parole, the

concept of juvenile all have different meanings in different States.

So when persons talk about parole in Connecticut, it is a very, very

different concept than when it is being discussed in New York, just

for example. In Connecticut, juveniles are persons under the age of

16. But we are one of only three States that treat all 16 year-olds

as adults. And when Federal mandates have a one size fits all type

mandate, then that does create unanticipated and unintentioned

problems around the country. Connecticut, for example, does not

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even have county government at all, and many of the proposals

here talk about funneling money to the county government level.

In many States prison has a different concept. In Connecticut, we

have no county jails, we only have a State Department of Corrections. And so mandates, though well-intentioned, sometimes tend

to confuse things on the ground level.

I would point out in recent years in juvenile justice reform proposals, in the end, the differences that each State has in designing

its criminal justice system have been taken into account. I would

only encourage you to do that in this regard.

And finally, I would just like to indicate that there is a very important role the Federal Government can play on this topic, and

that is allowing States and localities to come together in national

forums to compare best practices, to find out what is working and

what is not working in other States as we determine what we

should accept in our States.

And just as important as the DNA technology and how to apply

it to convicted offenders, the issue of privacy is also important. I

think that has really been the frustrating factor for many State

legislatures is we want to make the criminal justice change but we

are nervous about other ways that this information could be misused, for example, and concerns that people bring forward kind of

stops some of that legislation dead in its tracks. If we could meet

on a national basis with Federal, State, and local policymakers and

discuss ways that we could enact appropriate safeguards, I think

that would open the door to the kind of widespread collection of

DNA samples that have been discussed here today.

I think the partnership we have forged in recent years can work

effectively, and I look forward to helping in that regard in any way

I can or the NCSL can. Thank you very much.

[The prepared statement of Mr. Lawlor follows:]

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Mr. HORN. Thank you very much for coming.

We now move to Keith Kenneth Coonrod. He is Chair of the Consortium of Forensic Science Organizations, New York State Police

Forensic Investigation Center. I take it you are director of toxicology, drug chemistry, trace and breath testing in the Forensic

Laboratory System. The Consortium of Forensic Science Organizations comprises seven leading forensic organizations. You might

want to spell those out. So, we are glad to have you here. You have

a lot of authority and academic recognition.

Mr. COONROD. Good morning, Mr. Chairman and members of the

subcommittee. I would like to thank the subcommittee for this opportunity to provide testimony here today regarding the role of

State and local crime laboratories and how they interact with the

Federal Government.

My name is Keith Coonrod, I am currently employed by the New

York State Police as Director of Toxicology, Drug Chemistry, Trace

and Breath Testing in the Forensic Laboratory System; and I am

here as the Chair of the Consortium of Forensic Science Organizations which is comprised of seven leading forensic organizations,

which include: The American Society of Crime Laboratory Directors

[ASCLD], which represents over 400 crime laboratory managers

and directors from local, State, and Federal crime laboratories, and

I am currently President of this organization; the American Society

of Crime Laboratory Directors/Laboratory Accreditation Board

[ASCLD/LAB], which is the accrediting body for forensic crime laboratories for which I am currently an ex officio member of the

Board of Directors and have been team captain responsible for

many inspections of laboratories undergoing the accreditation process; the International Association for Identification [IAI], which is

the oldest and largest forensic identification association in the

world; the American Academy of Forensic Sciences [AAFS], which

is a professional organization representing numerous forensic specialties such as: criminalistics, engineering sciences, jurisprudence,

odontology, pathology and biology, physical anthropology, psychiatry and behavioral sciences, questioned documents, toxicology, and

a multi-disciplinary general section; the National Association of

Medical Examiners [NAME], which represents medical examiners,

coroners, and other physicians who conduct death investigations;

the National Forensic Science Technology Center [NFSTC], which

is dedicated to assisting forensic science facilities to achieve the

highest quality of operations; and finally, the National Center for

Forensic Science [NCFS], which provides research, education,

training, tools and technology to meet the needs of forensic science,

investigative, and criminal justice agencies.

While the public thinks of forensics as DNA, it is essential that

the committee understand that this is just one of the many tools

available to the criminal justice community by our forensic laboratories. Although DNA is indeed an important discipline, forensic

science is broadly defined as ‘‘the examination of all evidence submitted by criminal justice agencies to forensic laboratories for the

purpose of determining how that evidence pertains to the law and/

or the courts.’’

Forensic laboratories support the criminal justice community by

offering services in clandestine laboratory investigations, explosives

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analysis, controlled substance analysis, firearms examinations, alcohol analysis, tool mark examinations, toxicology, impression evidence, arson analysis, trace evidence examinations, death investigations, digital evidence, physical match, crime scene investigations, training, as well as biological examinations, including DNA.

While over 90 percent of all forensic examinations are conducted

by local and State crime laboratories in the United States, it is important that local, State, and Federal laboratories maintain a close

working relationship with one another. There is no single local,

State, or Federal laboratory that can possibly meet the vast needs

of the criminal justice community. Currently, there exists a close

working relationship between the Nation’s local and State laboratories and the various Federal laboratories. Let me provide you

with just a few examples.

The DEA laboratory provides a training course for new forensic

drug chemists from local and State crime laboratories. This supplemental training provides valuable information as well as advanced

technical information gathered from DEA laboratories. The DEA

also provides assistance to local and State laboratories in many

other drug related issues, such as clandestine laboratory seizure

training, awareness in newly encountered drugs, and technical support in cases involving drugs rarely encountered or analyzed.

The New York State Police Laboratory recently sponsored a

Northeast Regional Quality Assurance Seminar with assistance

from the FBI Laboratory. Attendees from Maine to New Jersey enrolled in this course which was designed to assist non-accredited

laboratories with the identification and implementation of numerous quality principles and practices. The classes were held at the

New York State Police Forensic Investigation Center, and taught

by instructors from New York State Police as well as FBI and instructors from other organizations.

With local and State laboratories providing the backbone of forensic analysis for our Nation’s criminal justice community, insufficient resources are available to these laboratories to meet demands.

These laboratories must focus their limited resources on examination of cases versus extended training or research and development

of new technologies critically needed by the forensic community.

While Federal laboratories play a major role in providing valuable

assistance in areas such as extended training, research and development, it remains the mission of our Nation’s local and State laboratories to support the needs of the criminal justice agencies.

Finally, Mr. Chairman, I would like to thank the members of the

committee for passing the Paul Coverdale National Forensic

Science Improvement Act. What I have tried to bring out to this

committee is the importance of, as Mr. Scheck said, a very broad

support. As I have said, forensic science is made up of not only

DNA, but of many other sections. For instance, our laboratory, I

am in charge of the Trace Section, evidence that we see today did

not exist 5 years ago for potential DNA analysis. Today, we get in

bags of vacuum cleaner bags and which we are being asked to look

for a particular hair that might be one of thousands of hairs to determine if it is probative for subsequent DNA analysis, and this is

being done by the Trace Section.

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So the point that I would like to make to this committee is the

importance of broad support of forensics to all disciplines, not just

DNA, because DNA affects the complete laboratory which is made

up of multiple disciplines.

As you know, we are working toward appropriating the law this

year, and appreciate your support in this matter. Again, Mr. Chairman, thank you for the opportunity to testify before the committee,

and I look forward to your questions.

[The prepared statement of Mr. Coonrod follows:]

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Mr. HORN. Thank you very much. That is very helpful because

I do want to get in to that, with Mrs. Maloney, in terms of the

forensics and the laboratories that you have seen.

We will now go to Dr. Jamie Downs, the director and chief medical examiner of the Alabama Department of Forensic Science.

Dr. Downs, glad to have you here.

Dr. DOWNS. Thank you, Chairman Horn and distinguished committee members, for the privilege of coming before you today. As

director of one of the few fully integrated Forensic Laboratory-Medical Examiner systems in our country, and as a practicing Forensic

Pathologist myself, I hope to bring to you a perspective from the

State and local level on the status of our Nation’s forensic laboratory systems.

An ideal forensic laboratory requires three things: objectivity,

competent and dedicated employees, and resources.

The creation of Alabama’s forensic system was tied, in large part,

to a tragic miscarriage of justice related to evidence—DNA evidence. The 1931 cases of nine young Black men, known as the

Scottsboro Boys, who were unjustly convicted of rape, pointed out

the absence of a competent and impartial forensic agency within

our State. In 1935, Alabama’s Legislature changed that by creating

our department to serve as independent and unbiased scientists

charged with the collection and analysis of scientific evidence. Our

scientists are certified as peace officers and have the power to enter

any crime scene in the State for the purpose of securing evidence.

All reports of our investigations, both on the scene and in the lab,

are public record. These reports clearly indicate factual results and

scientific expert options based on those results.

If I could, allow me to walk you through a typical homicide case

recently broadcast on television. I have submitted a copy for introduction into the record, if that is acceptable.

In May 1994, the badly beaten body of an 85 year-old woman

was found floating in a pond. Her elderly son was the suspect. At

the scene, our department recovered a cigarette butt. The evidence

was taken to our DNA section and later proved to have the son’s

DNA on the surface. At trial, the defense challenged the evidence,

questioning how it had been collected, stored, transported, and analyzed. Because this case had been handled properly, there was no

difficulty in chain of evidence or in having the criminalistics expertise on hand for pre-trail and courtroom presentation. Because I

had found that cigarette butt at the scene and personally transported it to the lab, I was able to not only testify as to the handling

of the evidence, but also to produce on the stand a scene photograph of the evidence. The successful prosecution of this case

hinged on that cigarette butt. That was possible because the local

laboratory had done its job.

This story is not unique, it happens every day in medical examiner and forensic laboratories across our country. It happens because good people who care do their jobs. On the whole, you will

find no finer group of employees than our Nation’s forensics personnel.

Our difficulty then is not with a question of neutrality or ability,

rather it has been a question of resources—more accurately, a lack

of resources. My parents taught me a long time ago you get what

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you pay for. If you want quality, you have to be prepared to pay

for it. In the business world, income must meet expenses in order

to make ends meet. We have to make ends meet in the realm of

forensic sciences and we can only adjust three things: quantity,

quality, and timeliness. Quantity of evidence is beyond our control.

Cases are made based on evidence coming in and being analyzed.

Quality is not on the table. One does not strive for mediocrity in

any area, particularly when someone’s life literally hangs in the

balance. That leaves only timeliness. We work as many cases as

quickly as we can, but our caseload has grown while our budgets

have stayed level. The result is staggeringly large backlogs, delays

in issuing the reports—6 months in drug cases, 12 months in toxicology, 21 months in DNA.

Competent, complete, and timely analysis of forensic evidence is

expensive, very expensive. My department’s annual budget is ap- proximately $15.5 million for some 80,000 cases, or about $195 per

case. In the area of DNA analysis, our agency spends approximately $140 per DNA sample analyzed, about $25 for each CODIS

database sample, and over $135,000 for each cold CODIS hit. Is it

worth it? Mrs. Smith spoke to that issue. I cannot answer the question except to say that for a victim or their family the answer

would be obvious.

Consider, if you would, the plight of a father who came to me recently to ask if evidence in the rape of his 12 year-old daughter had

shown who had violated his little girl. Imagine his surprise when

I told him that the 6-months he had already been waiting was really not all that long, since the average wait time in Alabama was

almost 2 years for DNA analysis. Consider if, for purely financial

reasons, we had to limit the number of samples our lab could process in a case. In this 12 year-olds rape, two pair of panties had

been recovered. Suppose we only could look at one. I hope we get

the right one.

This case points out the importance of skilled crime lab analysts

available locally to screen and process evidence in order to maximize the value of what evidence is collected at the crime scene.

Good scene work is the evidence of all forensic sciences and all

medical examiner work, including, but not limited to, DNA evidence. If we learned nothing else from the case of the people v. O.J.

Simpson, we learned that the existence of evidence alone is not sufficient. All evidence must be collected, stored, and analyzed competently, expeditiously, and impartially if our court system is to

work as designed—that is, to ensure justice.

We must recognize and accept the old adage that one cannot be

all things to all people. Federal support should be directed at complimenting rather than supplanting the State and local forensic efforts. Crime scene work is best handled on a local basis. If we are

to ensure that the public, law enforcement, district attorneys, defense attorneys, judges, and the courts have fair access to the

truth, we must strive for sufficient resources at the State and particularly the local level to provide personnel, facilities, and equipment.

Now, rarely, there are needs for highly specialized tests. A system should not be inverted to work to the rarity, but should maximize services provided to the most people. We must first ensure

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that the local and State forensic laboratory has the ability to meet

the needs of the population served. In an area of limited resources,

we must target available funds where they will do the most good.

Put that another way, if 99 out of 100 forensic cases are delayed

due to the inability to perform toxicology analysis and 1 out of 100

is due to the lack of DNA infrastructure, then we should address

the greater need first. Put the money where it will do the most

good for the most people.

The recently passed Paul Coverdale National Forensic Sciences

Improvement Act directs significant Federal assistance to State

and local crime labs but is as yet unfunded. The real strength of

this law is that it requires States to formally adopt a plan to deal

with local and Statewide forensic and medical examiner issues as

a condition of receiving funding. For the first time States will have

to implement a plan to deal with all involved interests within a

State. Now that is a reform that creates efficiency in government.

I humbly suggest we not stop there. I believe a National Commission on the Future of Forensic Laboratories should be established. Said commission should allow representatives of local,

State, and Federal crime lab and medical examiner communities to

come together with various nationally recognized independent scientific authorities, the judiciary community, district attorneys, defense bar, and investigating agencies. This would allow the various

States and concerned Federal entities to create a broad vision for

the future of all forensic laboratory and medical examiner concerns

nationwide. In working together, we can successfully complete the

fundamental mission of all crime laboratories and medical examiners.

My department’s mission statement is simple: To strive for excellence in all endeavors; to seek to serve as stewards of the public

trust; to find the truth, whatever that might be; and not to yield

to forces which would attempt to compromise the former. To strive,

to seek, to find, and not to yield. With full funding for the

Coverdale Act and the DNA Backlog Elimination Act of 2000, a

lack of resources will continue injustice through continuing delays

in evidence analysis. We have the desire. We have the ability. We

lack the resources. The Nation’s crime labs are literally drowning

in a sea of DNA and all other types of evidence. We ask for your

help before we go under for the final time. Thank you very much

for your attention on this important matter.

[The prepared statement of Dr. Downs follows:]

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Mr. HORN. Thank you very much. That is very helpful. And I will

get back to your proposal on a National Commission on the Future

of Forensic Laboratories when we go to the questioning.

We now have Mr. Robert S. Conley. He is chairman of the American Society of Crime Laboratory Directors and the Laboratory Accreditation Board, and he is also Director of the Indiana State Police Laboratory System.

Mr. Conley, welcome.

Mr. CONLEY. Thank you and good morning. I am speaking to you

this morning as the chairman of the American Society of Crime

Laboratory Directors, Laboratory Accreditation Board [ASCLD/

LAB].

Our accreditation program was initiated by the American Society

of Crime Lab Directors. The first accreditation occurred in 1982. In

1984 the Laboratory Accreditation Board, by plan, became independent of ASCLD, assuring autonomy in the management of the

accreditation process.

During the program’s first 14 years, 131 laboratories were accredited. During the last 5 years, 83 additional labs have become

accredited, bringing the total to 214. Of these, 199 are within the

United States. At this time there are 21 applications pending from

new laboratories entering the program, and 15 more applications

are anticipated by the end of the year. At year’s end, we hope to

have approximately 235 laboratories accredited. There are, however, over 200 labs still not accredited.

I would like to briefly characterize the ASCLD/LAB accreditation

program this morning. An accredited laboratory must use internally validated written procedures, maintain training programs in

each functional discipline, and competency test new employees before they perform casework. Reports are subject to systematic technical review to assure that findings and conclusions are supported

by case file documentation. Scientists are subject to educational

standards and they must participate in a proficiency testing program. The Accreditation Board monitors the laboratory’s proficiency test performance. The security of the laboratory and the integrity of evidence under its control must be demonstrated, precluding its contamination or deleterious change. An accredited laboratory must have a functional quality system that ensures appropriate corrective actions remediate any deficiency identified by proficiency testing, casework review, audits, or any other means.

These requirements and a host of others are verified by a stringent external audit conducted by trained inspectors who are currently employed in accredited laboratories. A laboratory must audit

and report its continuing compliance with the program standards.

The Accreditation Board reserves the right to inspect a laboratory

upon an indication of noncompliance. It has a procedure to consider

evidence of noncompliance and to impose sanctions, including the

revocation of accreditation.

Regarding DNA specifically, ASCLD/LAB has historically supported the will of Congress to assure the quality of DNA analysis

performed in accredited laboratories. Upon passage of the DNA

Identification Act of 1994, our program standards were modified to

incorporate the requirement to comply with guidelines developed

by the Technical Working Group for DNA Analysis [TWGDAM].

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Upon publication of the Quality Assurance Standards for Forensic

DNA Testing, those standards were incorporated in place of the

TWGDAM guidelines. Additionally, the board entered into a Memorandum of Understanding with the FBI laboratory to conduct an

approved audit of the Quality Assurance Standards to document

each accredited lab’s compliance with the congressional intent to

ensure the integrity of the forensic analysis of DNA and the Combined Offender DNA Indexing System.

In closing this morning, I feel I must comment on the funding

matter. As you can imagine, with the increased reliance on forensic

science by the criminal justice community, we have received an influx of new applications and an increased obligation to periodically

inspect accredited laboratories; coupled with the board’s intention

to attain recognition as an international standards organization accrediting body, the board is at a crossroads financially. While we

recognize that the Paul Coverdale National Forensic Sciences Improvement Act requires grant recipients to be accredited or to prepare and apply for accreditation, that act is not funded. Laboratory

budgets remain insufficient to meet criminal justice needs. We

therefore believe that the act should not only be funded, but should

include funds to be set aside supporting the accreditation process

in addition to the operation of the laboratories.

Mr. Chairman, this morning I would like to submit a copy of our

accreditation manual for the expressed purpose of a review by the

committee. I will remain available to answer any of your questions

pursuant to that review. Thank you.

[NOTE.—The publication of the American Society of Crime Laboratory Directors entitled, ‘‘Laboratory Accreditation Board Manual,’’ may be found in subcommittee files.]

[The prepared statement of Mr. Conley follows:]

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Mr. HORN. Thank you very much. That document will be put in

the record at this point, without objection. I think that would be

very helpful to a lot of people who would want to study that manual that you have just presented.

We now have the last presenter, Mr. Kevin L. Lothridge. He is

deputy director, director of strategic development of the National

Forensic Science Technology Center. We are glad to have you here.

Mr. LOTHRIDGE. Great. Good afternoon, Chairman Horn, and

members of the subcommittee. I am pleased to have this opportunity to discuss with you my organization’s role in assuring the

quality of the work of the Nation’s crime laboratories and to act as

a resource.

In a past life, I was the director of an accredited crime lab, and

past president of the American Society of Crime Lab Directors

[ASCLD]. I am also a Diplomat of the American Board of

Criminalistics, the personal certification board.

The NFSTC was established by the American Society of Crime

Lab Directors in 1995 and began operating in July 1996. It is an

independent not-for-profit organization located in Largo, FL. Its operations are supported by Federal funding and by recovery of costs

directly from client laboratories.

The vision of the NFSTC is that all forensic science services will

have the complete confidence of users and the community. And our

mission is to help all of forensic science achieve the highest quality

of operations. It achieves this by providing services such as accreditation of forensic DNA testing facilities to the congressionally mandated national DNA standards, provision of certified standard materials to validate test methods and the competency of analysts,

and training and education programs to ensure that the analysts

have the skills and knowledge to conduct their tests.

Good science is the bedrock of service quality in crime laboratories. However, good science does not just happen. It requires substantial resources to provide the physical plant, scientific equipment, and skilled personnel required to protect the integrity of the

evidence, ensure that it receives timely, fault-free analysis, and ensure that the subsequent testimony is fair and accurate.

Having reviewed the operation of over 100 of the Nation’s crime

laboratories in the last 5 years, I can tell the subcommittee that

there is a very wide range of levels of resourcing and performance.

Service quality demands that sufficient resources are provided to

ensure that these standards continue to be met. Maintenance of

quality also requires that appropriate operational infrastructures

be put in place.

The forensic science community has been working toward the use

of a triad of processes to ensure the quality of work that is performed in crime laboratories across the country. This triad of accreditation, individual certification, and competency testing has

made the profession stronger. Accreditation addresses the systems

that are in place in the laboratory. Certification addresses the skill

and knowledge of the analyst. Competency testing measures the

ongoing performance achieved by the accreditation and certification.

We are fortunate that there already exists both a well-developed

accreditation program provided by the American Society of crime

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Lab Directors/Laboratory Accreditation Board and a well-developed

certification program provided by the American Board of

Criminalistics. However, these organizations are currently funded

by fees and were established within the community of service providers and experience all the resource related issues that such organizations face.

In contrast, the NFSTC is an entirely independent organization,

it does not have a conflict of interest by also being service providerdirected, and has a staff of full-time professionals. The NFSTC’s

services compliment and provide vital support to the accreditation

and certification programs of ASCLD/LAB and the ABC. NFSTC

also provides the vital third step in the quality triad by providing

competency standards to crime laboratories.

The NFSTC is also providing leadership in bringing together organizations to avoid needless duplication and to leverage effective

contributions to quality. For example, we are a member of the Forensic Resource Network being institutionalized by the NIJ Office

of Science and Technology to assist State and local crime laboratories. We cooperated with the FBI and ASCLD/LAB to develop a

uniform checklist for auditing DNA laboratories. And we are using

some of our funding to provide a national DNA laboratory audit

service to laboratories in the CODIS database.

Mr. Chairman, I have attempted to describe for the subcommittee the role the NFSTC plays in assuring the work of the Nation’s

crime laboratory has a solid foundation of good science. I believe

that now and in the future the scientific analysis of physical evidence will aid more investigations and enhance the criminal justice

process.

However, good science is not cheap. It is imperative that funding

is available to make sure that forensic laboratories are accredited

and staffed with well-trained, competent, and professional analysts.

The NFSTC has a history of assisting the community in the aforementioned areas. Laws like Pubic Law 106–561, the Paul

Coverdale National Forensic Science Improvement Act, and Public

Law 106–546, the DNA Backlog Elimination Act of 2000, can assist

this. It is vital that funding authorized by these laws be fully appropriated so that State and local laboratories receive the funding

they need to provide timely, fault-free, and necessary services to

the public safety of their citizens.

The NFSTC wants to be a resource to this subcommittee on matters concerning forensic science. And I would be pleased to answer

any questions you may have. Thank you.

[The prepared statement of Mr. Lothridge follows:]

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Mr. HORN. Thank you very much.

We are now going to go to general questions for all of you as a

group or individually. It is going to be 5 minutes per round. I will

start with Mrs. Maloney, 5 minutes, then I will take 5 minutes,

then we will have a second round.

The gentlewoman from New York.

Mrs. MALONEY. Thank you, Mr. Chairman. I would like to ask

David Boyd, has NIJ done any research as to standardizing evidence collection kits? And do you believe that the laboratories

would be more effective and efficient if they were all working off

the same evidence collection standards?

Mr. BOYD. NIJ has over the last 2 years published a series of

guides, beginning at the direction of the Attorney General, with a

guide on the collection of evidence at homicide scenes. We now

have produced additional guides for crime scenes in general, for the

handling of eye witnesses, explosion and arson investigations.

These guides represent a consensus of what needs to be done at the

crime scene in collecting and preserving forensic evidence.

Each of the States inevitably adjusts these in keeping with the

laws regarding evidence in their jurisdictions, and they have to do

that. But I think it is imperative that the community begin to

think very extensively about how to develop a series of appropriate

guides that establish what the minimum standards are for the collection, preservation, and analysis of forensic evidence.

Mrs. MALONEY. Keith Coonrod, do you agree, and would you like

to elaborate? Would the process be easier if there were standardized evidence recovery practices?

Mr. COONROD. I can speak for New York State because we did

standardize the kit. For a while we had two kits and we have now

standardized that to one kit now. And that has been beneficial to

the laboratories in New York State having one type of kit where

we know exactly what items are to be collected, how they are to

be collected, what the instructions are within that kit for the collecting agency. So, from the perspective of one State’s view, absolutely it has been very beneficial.

Mrs. MALONEY. And you mentioned the backlogs. Are they

throughout all areas, or are they specific just to DNA testing?

Mr. COONROD. Backlogs are being exhibited throughout all areas.

And as I made as a reference, DNA affects many areas. For instance, one of them I used as an example, trace evidence, where

we are now getting in vacuum cleaner bags, our trace evidence section must go through those vacuum cleaner bags because what is

considered to be potential DNA evidence now is much different

than it was 5 years ago. So we must identify hairs, full hairs with

roots, partial hairs, and determine are they suitable for DNA analysis, and if so, make some decisions as to whether we can possibly

even consider analyzing all of this potential evidence that exists. So

DNA affects many sections of the laboratory and, hence, there are

many backlogs of all sections.

Mrs. Smith had mentioned the SANE nursing. There are a lot of

other issues when we are talking about sexual assaults or rapes

dealing with these rape kits, and that also includes drug facilitated

rape or sexual assault. There are a lot of other issues that are

being generated as a result of DNA and sexual assault, etc., and

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these impact all of our laboratories. New York State does not have

the resources to do DFR testing, drug facilitated rape. So there are

backlogs across the broad spectrum.

Mrs. MALONEY. Many of you talked about backlogs. Mr. Scheck

in his testimony talked about how he worked with the police commissioner in New York City to attack the backlog. They outsourced

it and they still could not attack the backlog even with the private

resources and the public resources. And he mentioned earlier that

you should really attack the evidence between 7 or 10 days to have

the best effect. So we have this wonderful tool but we are not really

using it efficiently across the Nation. I would like to hear if there

are any ideas of how we can address this. Anyone’s comment?

Mr. ADAMS. I would like to respond to that, if I might. To give

you one idea of what might be done, research and development has

shown over the years that we have been able to reduce the time

it takes to perform DNA testing. When we began performing DNA

testing in the late 1980’s it would take 6 to 8 weeks to perform one

test. Now that has been reduced to days. So, therefore, the research

and development moneys that have been allocated to DNA efforts

have greatly reduced the amount of time it now takes. And as Dr.

Boyd mentioned in his statement, additional research in the area

of chip technology is also looking to reduce the amount of time it

takes.

But I might point out that is the amount of time it takes to do

the DNA process alone. That does not count toward the time it

takes to identify a stain or an item suitable for DNA testing. When

you are talking about hundreds of items of evidence submitted in

one particular case, it may take days or weeks to find that one particular stain that then can go through DNA testing.

Mrs. MALONEY. Given the fact that it takes such a long time, and

again going back to Mr. Scheck’s testimony, he suggested that possibly we should have a State or a Federal standard that you do certain crimes first. Obviously, if you are in prison, do not do the DNA

check. But many States are doing DNA checks of prisoners first.

Should we not have a Federal standard that those on parole be attacked first for the backlog? I just wanted your comments on that,

or anyone’s comments on that.

Mr. ADAMS. I have known Mr. Scheck now for well over a decade

and I can tell you that he and I have not always seen eye-to-eye

on things. But today he and I see eye-to-eye on almost everything.

And his priority list is exactly right. The priorities of reducing the

backlogs but not forgetting the cases that are happening today and

being able to attack those cases right now, his priority of seeing

mitochondrial DNA testing placed in the crime laboratories at the

State and local level, those are proper priorities that should be addressed.

Mr. HORN. Dr. Boyd and Mr. Adams, I would like to know how

much money is the Federal Government providing to the States

and local forensic laboratories.

Mr. BOYD. The National Institute of Justice will have this year a total of $30 million which is available directly to State and local

forensic laboratories, and that is for DNA and general forensic

work as well. Some of that is earmarked but it all goes to States

for forensic applications. In addition to that, we have just received

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authority to reprogram $25 million of asset forfeiture money to

help with the CODIS backlog. That also will go to the States. So

that gives you a total of about $55 million this year which will go

to State and local laboratories. That is far and away the largest

amount ever provided in a year to State and local crime laboratories.

Mr. HORN. Any comments on that, on the money? Is it too much,

too little, or what? It is always not enough, right?

Mr. SCHECK. I would say—I’ll speak for these gentlemen, I am

sure they will not disagree with this—it is not nearly enough. But

I think that the issue is somehow directing the priorities so that

you get the most return for the investment. One of the things that

I am sure Mr. Asplen and Dr. Boyd could testify to is that some

of the backlog money, the $14.4 million that was being sent out,

I know that NIJ was encouraging State and local labs to do more

of the unsolved cases. I think, what was it, Chris, the initial request was that 2 percent of the appropriations go toward unsolved

cases. And when we are talking about the unsolved cases, we are

talking about those rape kits like Debbie Smith’s rape kit. And

they argued with NIJ and they said given all our priorities, given

the pressures that the States are putting on us to show some results for convicted offender backlog, we cannot do 2 percent, we

have to have it at just 1 percent.

So there has to be a way of redirecting the priorities. It is very

true what they are saying about more trace evidence now is going

into the laboratories. We need training on how people can identify

which are the appropriate stains so they can be more efficient. But

I again have to come back to this point—what can be more efficient

than typing those rape kits because we know that those sexual assault cases are going to give the identity of the semen donor. And

there is no more powerful application of DNA than those untested

rape kits.

Mr. HORN. Well let me ask Dr. Boyd, do we have a training kit

for laboratories that has been worked out by the National Institute

of Justice so that you would have some uniformity across the country? Science is science and how do you best deal with it? I think

everybody here has given the impression of priorities. If there are

priorities that you heard that you do not like, and if there are others that you want to put in, let me know right now.

Mr. BOYD. On the training program, there are a couple of issues

with training. The FBI offers, I think, probably the best DNA

training available in the United States. But they are also constrained when it comes to resources. It costs some amount of

money to train these personnel, it costs some amount of money to

get those personnel to a place where they can be trained. Even

when they go out to the field to provide the training, you are talking about laboratories that are overwhelmed that have to free up

people to go to the training. We have, if I can steal from Chris

here, we have developed a series of compact disks, CDs on DNA

evidence. This is actually aimed at every police officer so that,

ideally, it provides reasonable training for the first person who is

on the scene so that person knows how to protect the evidence and

with any amount of luck does not destroy the evidence before it can

get to the crime laboratory and be analyzed. This CD, interestingly

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enough, has now been requested by the British who like it and are

interested in using it.

One other point I think it is important to make. We have had

a number of people who have talked about DNA evidence and other

sources of evidence. It is important to remember that DNA represents less than 3 percent of all the material that comes into

crime laboratories for analysis. It is an important 3 percent because it is so powerful and has so great a payoff that its payoff is

out of proportion to the amount of the evidence. But it is still important to remember that the crime lab has to face that whole

range of evidence. And so it manages to keep them pretty overwhelmed.

And the last point I would make is the priority issue is a little

bit of a chicken and the egg kind of problem. So far there have

been 150 cold hits just by requiring the 1 percent, because so many

States told us they simply could not do more than 1 percent. Nevertheless, it is also true that if we do not populate the database

itself, then we cannot get hits when we do no suspect data. And

if we populate that and do not do the no suspect analysis, then we

are not going to get the hits we want.

Ultimately, I think there needs to be some effort to look at funding both ends of this equation, because it is very much a sine qua

non; the one is required to make the other one really pay off.

Mr. HORN. My time is up. Mrs. Maloney has 5 minutes now for

questioning.

Mrs. MALONEY. Because of the huge backlog, some of you testified that the statute of limitations runs out and some States are

responding by eliminating the statute of limitations or other adjustments. Mr. Scheck in his testimony mentioned a proposed New

York State law that would allow John Doe warrants to keep that

case alive, thereby not doing away with the statute of limitations,

which has some benefit in certain cases. I would like to ask Mr.

Scheck to elaborate if you would like, but I would like each of you

to state whether or not you think that is a good idea.

Mr. SCHECK. There are a number of different States that have

proposals. The reason I think that my colleagues here might like

the one in New York is that it says—— Mrs. MALONEY. Which, by the way, has not passed as yet.

Mr. SCHECK. It has not passed, it is proposed. It makes the State

legislators put money into the crime labs to deal with the backlog.

It is not going to do any good for anyone, frankly, to say let’s not

have anymore statute of limitations on rape cases. Frankly, I can

think of a class of cases where the individual charged, is it a consent offense, DNA is going to be irrelevant, and you prosecute

somebody 15 years later or some number of years later. That is not

fair to anybody.

But unless the States pass this John Doe warrant type statute,

with additional moneys to the crime labs so that they can actually

do the testing on these unsolved rape cases, it is not going to be

effective. So that is what is good about the Silver bill is that it says

we will extend the statute of limitations by a year or two, so as the

statute is beginning to run out on these cases the crime labs have

a tremendous incentive to go through all their unsolved rape kits

just before the statute is going to expire and type all of them.

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Mrs. MALONEY. I would like members of the panel to comment

whether you support it or oppose this proposal, and why.

Mr. ASPLEN. I would agree with Mr. Scheck that as a vehicle to

bring attention, No. 1, to the issue of rape kits that are being

thrown out in cases that we are literally losing every day by the

thousands, it is an excellent vehicle for that, especially if it brings

money along. I am not sure that it is necessarily a legal requirement in terms of actually filing the John Doe warrant.

The first John Doe warrant on a DNA basis was filed in Milwaukee, WI, and we have had a number of them since then in States

that do not have a statutory permission to do that. The John Doe

warrant is not a new concept in criminal justice. We have been

doing it for years based on a.k.a., we have been doing it based on

physical description. It is just an infinitely better way of doing.

So, again, it may not be a legal requirement. But I would certainly agree that as a mechanism to bring home the extent of the

problem that we face by these cases that are being lost every day,

I would agree with it.

Mrs. MALONEY. Any other comments?

Mr. LAWLOR. If I could just repeat what I said earlier, which was

that in Connecticut it was not a proposal, it actually has become

law last year. It was a retroactive extension backward of the statute of limitations 20 years. The only requirement was that the report had to be made to the police within 5 years of the occurrence.

But assuming that happened, then we could indict someone today

based on an incident which occurred 18, 19 years ago. And the reason we did this was because of the advent of DNA evidence where

it would be possible to identify the person involved.

This question of consent was discussed. Consent can always be

a defense, obviously, in most sexual assaults, and that is a continuing problem. But nonetheless, we did it and it has stood up so far.

Mrs. MALONEY. On the costs that the chairman brought up, I

would like to go to Dr. Downs. In your statement, I believe you said

that there was an average of $195 per case, and specifically for

DNA approximately $140 per sample, approximately $25 for

CODIS database sample, and then I believe you stated that

$135,000 for each cold CODIS. Can you explain the tremendous

jump in price from $25 to $140 to $135,000? What is entailed in

that amount?

Dr. DOWNS. Yes, ma’am, I would be happy to. The $140 per DNA

evidence sample, in a homicide case, a typical homicide case, we

might have at least 10 evidence samples in that case. So right

away you jump to more like $1,500. The numbers that were broken

down were by the total number of cold hits that we have had in

Alabama, which are 10. So we have taken all of the funds that are

targeted to the DNA operation to break it down to show you the

cost per cold hit. As more cold hits come——

Mrs. MALONEY. But $135,000 versus $25?

Dr. DOWNS. That is per sample that is entered into the database.

That is a very cost-effective thing to just put the clean samples into

the database and store those samples in the computer database for

later comparison purposes.

Mrs. MALONEY. OK. My time is up.

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Mr. HORN. I thank the gentlewoman. Let me note, Dr. Jamie

Downs, director, chief medical examiner of the State of Alabama,

I am interested in your proposal that there ought to be creation of

a National Commission on the Future of Forensic Laboratories

which should be established, and that the said commission should

allow representatives of local, State, and Federal crime laboratories

and medical examiner communities to come together with various

nationally recognized independent scientific authorities and the judiciary, the district attorneys, the defense bar, the investigating

agencies. I know Dr. Downs is for it. Anybody else? Any concerns

one way or the other, to get them all in the room? Would that be

a worthy endeavor?

Dr. Boyd.

Mr. BOYD. I think with a properly drawn charter that there are

significant advantages in bringing together the broad community to

address any of these issues that are of concern to the field. We

have had a great deal of success I think with the National DNA

Commission in looking very broadly at DNA issues separate from

all of the institutional imperatives. And so I think there is a great

deal to be said for a similar kind of approach.

Mr. HORN. Now, as I remember, the Attorney General of the

United States often brings that type of a conference together.

Sometimes it is the President through a White House this or that,

like a White House Conference on Youth. I have been to that one.

Do you think the Attorney General might have an interest in doing

that, because it is focused on a particular area that is strictly justice?

Mr. BOYD. I would have to refer that to the department.

Mr. HORN. Well we might make it a recommendation in our report to the House.

Mr. ASPLEN. Mr. Chairman, from the perspective of the National

Commission on the Future of DNA Evidence, I think the potential

for that kind of deliberative body, it is important for a number of

reasons. In many respects, the importance of a commission like

that is as much the process as anything, in that I guess one of the

overriding philosophies behind this commission, the DNA Commission, was how do you maximize the value of DNA, its investigative

value, while at the same time engender public trust in the system.

The fact that we were able to, on a national level, in a very open

forum, discuss important issues like privacy, like funding, and even

some of the scientific issues I think were very important and ultimately enabled us to advance things even more quickly. It enabled

us to integrate the technology more quickly.

Our ability, for example, when arresting testing first came up, it

was a very touchy subject. But at that time, the discussion was

being held on CNN or on Larry King Live one night with Commissioner Safer, the next night with the ACLU. When the Attorney

General came to the commission and said I would like you folks to

discuss this, the playing field was leveled and the public had an opportunity to hear what was going on and to participate in it. And

I think the nature of the process itself is incredibly important.

I think the more tangible benefits, though, I think are important

also. We would not be really talking that much about backlog reduction through outsourcing if the commission had not started to

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make that recommendation 3 years ago. The community had talked

about it, the forensic community had talked about it, but we had

not set it forth as a proposition. And I think that was one of the

great accomplishments of the commission.

Mr. HORN. Now there is a commission right now with some members on it, is there?

Mr. ASPLEN. The National Commission on the Future of DNA

Evidence is still in existence; however, its charter expires in August. We have existed for 4 years now and that charter will expire.

Mr. HORN. Does the Attorney General appoint those individuals

to that commission?

Mr. ASPLEN. No, they were not appointed by the Attorney General. It was a commission created by the Attorney General, it was

administered through the National Institute of Justice, the appointees were made through the Director of NIJ, at that time it

was Director Travis.

Mr. HORN. I have an interest in this because Norville Morris,

who I think a lot of you know, a very distinguished lawyer in the

University of Chicago Law School, also Robert Kutak, he is no

longer alive but he was one of the founders, and I just tagged along

with them, and we created the National Institute of Corrections at

the request of Chief Justice Burger. He called us in and said, ‘‘For

Heaven’s sake, try to get the States to get up to the standards that

we have in the Federal Bureau of Prisons.’’ And we did that. We

went through 11 Attorney Generals doing that. But it worked.

We put out money. It did not take much. All you had to do was

get a lot of them to get a cup of coffee and sit up there at Lake

Tahoe and have great thoughts. And we did that to bring all the

parties and stakeholders together. And things did change. A new

generation jail was accepted by the State of Florida in Miami-Dade.

All of that did not take very much money but we changed their approach to it. In fact, they issued a day to honor our individual in

charge of jails and prisons, Mr. Nelson.

So I think this type of bringing people together will help, and obviously the money helps, too, in the specific way of accreditation.

And I take it you would not be giving the money if they had not

been accredited in their laboratories; is that correct?

Mr. BOYD. That is correct. They have to meet a number of qualification requirements and they have to be properly eligible for accreditation.

Mr. HORN. That makes sense.

Does the gentlewoman from New York have any other questions?

Mrs. MALONEY. I would just like to ask Mr. Scheck, earlier I

asked Mr. Boyd and Mr. Coonrod and they said that they supported having a national standardized test for evidence. I would

like to hear your comments on that. Would you have one just for

all evidence, or just for rape victims? And I would like to hear any

other members of the panel comment whether they think it would

help in solving crimes, make it more efficient, save money, and

help us find criminals faster.

Mr. SCHECK. I think the rape kits may be a good and simple and

easy way to start. I think, as Dr. Boyd pointed out, NIJ has put

out guides to law enforcement in a whole series of areas. The idea

of, for example, standards on collecting and packaging evidence I

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think are pretty important, particularly since these technologies

are so sensitive and it is so easy to confound investigators by getting extraneous DNA samples on pieces of evidence. Everybody

here knows that can create real problems in the case. So, I think

that there is room for establishing national standards.

I think that each jurisdiction is going to be a little bit different

and they will probably be developing their own variations. As long

as it is within a certain national standard in some of these things,

I think it could be helpful.

Mrs. MALONEY. Would anyone else like to comment?

Mr. CONLEY. I might volunteer that in the State of Indiana a

program that has been real successful is we have a State statute

that assists victims of crime, sexual assault victims particularly, by

paying for the medical expenses for the examinations performed. In

order for the hospital to apply directly for those funds, a standardized sexual assault evidence kit must be used that is approved by

a committee of the State, including forensic scientists from our

State crime laboratories. That has been a real successful program

I think, and that is just one idea I might share with you.

In regards to the overall concept of evidence collection, the accreditation program in the year 2001 added the new discipline of

crime scene processing, which is an additional discipline that accredited laboratories may participate in. I think that this is going

to go a long way toward causing the agencies to create, with guides

such as have already been mentioned, internal systems of managing how crime scenes are processed. There is a history in law enforcement and in field investigations that if we write down no rules

it is a little more difficult to evaluate our weaknesses. It is going

to take time, it is going to take years, but this is a good start in

the development of more consistent high quality processing of

crime scenes.

Mrs. MALONEY. Thank you. Other comments?

Mr. ASPLEN. I think that there is an important difference between standardization, per se, for example, of a rape kit, and minimum standards, particularly when you are dealing with jurisdictional specifics. For example, some rape kits are equipped with the

ability to take blood for blood alcohol content. Some jurisdictions do

not do that, they do not want to do that; however, some consider

it important at that stage. So I think it is important to understand

and to keep in mind the distinction between minimum standards

around which individual jurisdictions can accommodate their own

requirements as opposed to standardization such as one rape kit

which would apply to all different jurisdictions.

Mr. LAWLOR. If I could just add something very briefly on that.

I would agree some type of minimal standard is important, but

flexibility is crucial because jurisdictions can be very different. We

did adopt a statewide standard in Connecticut and we actually included, as part of the hospital regulatory process, that they be required to have a standard operating procedure, that the medical

professional is required to have specialized training in collection of

this evidence, not just on the scientific side but the human side of

dealing with victims in that situation. And finally, the most surprising thing of all, was we found out that some hospitals in our

State actually billed the victims for the cost of the collection of the

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evidence as if it were a medical procedure, and we have now outlawed that.

But I think in discussing these procedures you will uncover the

horror stories that are out there of extraordinary insensitivities

that take place every day with regard to victims of crime, and beginning this discussion only helps resolve those problems.

Mrs. MALONEY. I want to thank all of you for your thoughtful

and excellent testimony today. Thank you.

Mr. HORN. Let me just ask a few questions and then we will

wrap it up. What are the privacy policies of these labs? Are there

any problems in terms of privacy or something?

Mr. Adams.

Mr. ADAMS. Mr. Chairman, first of all, the DNA Act of 1994

which established the CODIS and the National DNA Index System

had built into it certain requirements which allow for the samples

to be imputed into the national system, but done so with very limited information; a unique identifier for the sample, an identifier

for the laboratory that performed the analysis, and the identity of

the laboratory analyst that did the testing. Very limited information. Second, it is limited as far as access, only accessible by those

laboratories approved to perform DNA and enter them into CODIS.

And then, third, limited as far as accessibility with regard to buildings, they are in secure locations.

We have attempted to adhere to the need for maintaining strict

compliance with privacy issues. That is at the Federal level. Of

course, as you are probably familiar, many States have enacted

confidentiality legislation, I think 46 of the 50 States, over half of

the States have criminal penalties associated with improper disclosure. So privacy has been an important issue that was also discussed by the Commission on DNA as well as the DNA Advisory

Board.

Mr. HORN. Does some of that also include the so-called disgruntled employee where they damage some of the samples. Have you

ever had that in any of the laboratories, and is it part of the accreditation system?

Mr. ADAMS. I am unfamiliar with that aspect.

Mr. HORN. Well, Mr. Conley, you have probably—— Mr. CONLEY. Well, in terms of the possibility of a disgruntled employee doing something that would be damaging to a database, certainly I believe in an accredited laboratory situation that would not

go undiscovered and it would not go unaddressed. The data in the

form that it is stored in a database really does not mean anything

to anybody who is concerned about the likelihood for somebody to

die early of a disease or to pass on a genetic defect or something

like that. This, in and of itself, helps to build in some security.

In terms of some damage to the database, typically those of us

who have the responsibility for maintaining State databases do

maintain, under high security, samples in order to have the ability

to reconstruct it if necessary in the future. I hope that is responsive

to your question.

Mr. HORN. A DNA sample that, say, proved a person could be exonerated, what happens to the sample?

Mr. CONLEY. It is frequent that we have had hits, certainly in

our State, where people have been identified after the laboratory

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test has excluded a suspect. Those suspects would not meet the definition of our State law, which basically fits the Federal regulations

and the Federal law, and the profile of an innocent person or a person who was excluded could not be put into the database. Only forensic samples, unknown samples in cases that have not been

solved. There have been some case-to-case hits, obviously, between

specimens recovered in separate criminal investigations, separate

crimes. We recently had some in Indiana that were on opposite

sides of the State, then a suspect was developed in one of the cases

and successfully charged, at least to this point, in both counties.

Mr. HORN. Mr. Scheck.

Mr. SCHECK. The issue here is not the CODIS system. You have

the national computer and you have the State and local computers,

and there are very strict requirements, as Dwight Adams said, for

putting those samples in. We put those into the 1994 act. That is

not the problem. If all the State and local authorities would live

with precisely the CODIS rules, that would be fine. But they are

not.

It is a pretty simple matter to extract the DNA profile. And what

is happening now that State and local authorities have the capacity

to do their own DNA typing is, let’s say—because we found out in

our national commission that this has apparently happened—they

take a sample from a rape victim and from let’s say a husband

whose sample was taken for elimination purposes, or, what is very

frequently happening I believe, the police will say to some individual we want your sample for elimination purposes because you live

in this area or you are near a crime scene, right, and we just want

it for this case, or they suggest it is just for this case, then those

samples cannot be put into CODIS but they can be put into that

State and local databank. And those, unfortunately, are not regulated, they are not subject to the CODIS rules.

I think, to the extent that States are not dealing with this issue,

and lab directors—I will give you a very specific example. We have

a client in New York, he was exonerated, the man I talked to you

about before, the case with bite mark evidence, they took the saliva

stain and then the fingernail scraps, they matched them up, he is

exonerated, he leaves jail. Under our CODIS and State rules, his

sample will come back to him. But the New York City Medical Examiner’s Office has that DNA profile and they say I have no authorization to get rid of it, we are just going to keep it in our computer. Now that is the reaction, unfortunately I think, in all too

many places.

I think that is a terrible mistake because the laboratories on this

privacy question should be as clean as Caesar’s wife, otherwise

there is going to be an error, there is going to be some kind of privacy problem and a lot of people who are very concerned and sensitive about this issue are going to come back to these very gentlemen who are here asking for money, and I support putting money

into this, as I have indicated, and they are not going to get it because there is going to be this problem. And so, really, more attention has to be paid to these privacy issues.

And incidently, it is no longer good enough to say that all these

STR markers or all these DNA markers are all ‘‘junk DNA.’’ Well,

we sequenced the genome; we realize this junk DNA is very meanVerDate 11-MAY-2000 10:25 Apr 30, 2002 Jkt 000000 PO 00000 Frm 00139 Fmt 6633 Sfmt 6633 C:\DOCS\78050.TXT HGOVREF1 PsN: HGOVREF1
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ingful. One of these markers, incidently, THO–1 is actually implicated in I think a disease, I may be wrong about which one, but

I think it is a marker for some form of diabetes. So we just cannot

say that anymore.

Mr. HORN. Any comments anybody else wants to make on the

record? Yes, Mr. Asplen?

Mr. ASPLEN. I would agree wholeheartedly that there are still a

lot of discussions that need to be had over the issue of State and

local databases and who needs to go in. One example that I would

give was the dragnet scenario, for example, in Ann Arbor, MI,

where an individual investigation was conducted and blood samples

were taken from over 150 African-Americans. They gave their samples voluntarily. When the case was ultimately solved and the real

perpetrator was identified, when those individuals went back and

asked for their samples back, that was refused. It was refused because law enforcement took the position that they had lawfully obtained it. And they had. It was true they had lawfully obtained it.

However, I would venture to say that the next time that the Ann

Arbor police department decides to try to enlist the voluntary help

of its citizens it may find itself in a difficult position.

I go back to the importance of privacy from the standpoint of, if

we are going to maximize the investigative value of this technology,

we must do it in a way that engenders the public trust along the

way.

Mr. HORN. Well, thank you. Any of you that want to make statements, we will be glad to include them in this part of the hearing.

If you think of something on the airplane or in the automobile, gee,

I wish I had that idea, just send it in to us and we will deal with

it.

I want to thank each of you. It has been a long morning and you

have all offered some excellent ideas. Hopefully, I think we will

have that national conference that the Attorney General ought to

do and get you all in the room again. Thank you for coming.

I am going to now thank the staff for their help. Mrs. Maloney

had a number of staff members I believe for the minority staff. Of

course, Michelle Ash, professional staff; Jean Gosa, minority clerk.

If you have anybody else that helped with this hearing, put them

on the list. We thank you all.

And then for the majority staff, J. Russell George, staff director/

chief counsel for the subcommittee; Bonnie Heald, to my immediate

left, the professional staff member that put this together and is

also director of communications; Scott Fagan, assistant to the subcommittee; Chris Barkley, staff assistant; interns Alex Hurowitz,

Ryan Sullivan, and Fariha Khaliq. And not the end of it all but she

is here always from beginning to end, and that is the court reporter, Geri Lyda. We thank you, Geri, again. This was a long day

for you.

With that, we are adjourned.

[Whereupon, at 1 p.m., the subcommittee was adjourned, to reconvene at the call of the Chair.]

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