MR. SMITH: Well, I'm to report on the work of the legal issues working group, which is probably easier for me that I've lost my notes and the report prepared for this moment, because I can rely more heavily on Jeff and others who were there.

Every time I'm in a room with Barry Scheck, of course, a new agenda item emerges for the legal issues working group, and I want to thank you for the constant flow of business.

Let me just try and divide my recollection of my report in the following areas.

One is that we didn't have the legal issues chapter of the post-conviction group's effort at the time we met and got it now, and it seems to me, having cleaned it to see if there's anything we're supposed to do, I suspect not. It seems to me that they've done a pretty good job of all that.

But that aside, we may have to return to some of those issues in our group.

The flip-side of those issues in our minds, I think, has been statute of limitations. That is, a time limits question raised and analyzed in that report has as its flip-side whether or not there ought to be changes in the statute of limitations limiting the prosecution of cases now that the evidence, when it's DNA evidence, has somehow a different feel to it, different quality to it, perhaps in fact a different quality.

We had some heated discussion about this at two meetings so far, and as I recall, at our next meeting, on the 15th of March, we're going to have briefs from Jeff and from Rock Harmon to help us sort out those questions, why we have statutes of limitations, why we would waive them, and how we ought to think about them in this context.

So, I have nothing to report to you on our conclusions in that regard, but we're going to keep working on that one.

I think the more interesting and troubling to our working group topics are the big ones, and they're troubling in their own right but also because we feel that they fall into our jurisdiction, but we're far from certain that legal is the right category in which they fall, privacy being the biggest, and Phil's not here. He wasn't at the meeting in Chicago either, so I'm really anxious to have a meeting with Phil about these matters.

But the privacy questions keep fracturing into subordinate questions of law, and I'm not so sure that we're properly addressing them, because it seems to me that there are really much bigger questions about this not satisfactorily answered by an analysis of the potential legal theories that would be used either to penetrate or protect some zone of privacy interest.

I mean we have been talking about Fourth Amendment law. We have mentioned, though haven't fully analyzed, some of the contract law issues that come into play, particularly when we start looking beyond the law enforcement data bases themselves.

We've discussed but haven't done a systematic exploration, though Jeff is working on one, of the statutory law governing what is essentially a set of privacy interests, and we haven't done anything yet with property law. Whose are they, the samples, the profiles?

But what's probably, I think, bothering us about it is that, at some level, I don't think there's a lot of confidence in the legal issues working group that those are the dimensions on which this is to be resolved, and so, it is with some comfort I got the call from Chris about the possibility of a national symposium on these issues that would take us into realms other than contract, property, statute, and so forth.

Still, let me point to a couple of other topics that we're taking up.

I think an important issue and one that Barry helped us develop a bit at the last meeting we had is, in the investigative use of DNA profiles, what do we anticipate as we listen to Jim's group in the future being possible for investigation, and are there legal or privacy or other value interests that are arising from those possibilities?

The race question, I think, has been reacted to quite differently by different members of our working group as something to be avoided at all costs because of its political difficulty and one that has a direct parallel in the ordinary conduct of investigations when you've got to figure out whether you're looking for a dark or a light person, a man or a woman, a Filipino, right?

Now, it seems to me that we haven't really been rigorous in our consideration of these questions, though Rock has been bringing us back pretty solidly time and again and saying, well, wait a minute, you know, I can do this, right?

There's no law that says I can't do this, and if I want to do it, I'll do it, but I don't want to do it, which is, of course, an interesting posture for a working group member to take, and we're working with Rock on getting to be a little bit more expansive in his views.

So, then there is Barry's issue, which I think we didn't deal with very well, but it's fascinating, about fuzzy searches.

That is, to what extent is it desirable from an investigative point of view, and if it is, are there legal or other issues -- there are -- about conducting searches where you're not looking for a match but looking for approximations that might lead you to others, family members, for example, who would be useful to interview, and that's a topic that's hot, and it's going to be important.

So, we'll look at that, because it will be exciting and fun to do so.

Right alongside those issues are rules about the collection, the use, and the sort of assembling of DNA samples and profiles.

The dragnet questions have been plaguing us recently.

That is, what are the limits, if any, on the uses to be made of DNA samples and profiles derived from them collected in a kind of dragnet operation sort of described to us by the British presenter two meetings ago, and I think that, on the testimony at our last meeting, there's division here in the way the courts are handling those questions, and they're likely to be important. So, we have to spend more time looking at that.

As to asking, this is a case we haven't really fully explored, but it seems to me we're going to have to. That is, there are lots of DNA samples and tissue samples lying around in this country.

Whose are they? What are the rules governing their use for investigative purposes or for the building of a database of identifiable DNA profiles?

I had an experience last week. I had to go in for some minor surgery at my hospital. In the last meeting of the committee, I had been reassured by somebody who hadn't been in for surgery in a long time, I guess, that the informed consent, the contractual document between my medical provider and me would protect me against their giving over to the police, so I read it very, very carefully, and I summoned in the doctors, and I asked them what they thought it meant, and we all agreed that what it meant was they could do anything with it they damn well please, except that, if I wanted to, I could have my tissue back, thereby preventing it, if they hadn't profiled it already, from giving it to somebody else, and so, those things, it strikes me are both legal, but in a much more fundamental way, they're value issues.

Now, I also have to say, because I think it's a question for the larger group, that I detect, I just detect two sort of contrary impulses about this.

One is an impulse to go very slowly so as not to rile waters that are easily riled by reference to universal DNA databases and all that kind of stuff, but there's another impulse, not quite so obvious but emerging, which is to say, now, wait a minute, right, going slowly is to go all the way without ever noticing where you're going, and maybe what we should be doing is looking much more directly at whether or not some form of universal DNA database is actually coming and, if it's coming, whether or not the Federal Government ought to be doing something to control the way in which it comes, and I think that's really of some discussion, frankly, as a prophylactic as well as an investigative and identification matter.

I worry that this Commission could find itself in the position of reassuring a nation with respect to these matters and, in a funny way, opening it up to greater unnecessary exposure and missing an opportunity, perhaps, for an orderly development of a useful tool.

Okay.

So, that will be on our agenda, and there's a whole bunch of other things in my notes that I will be able to spare you, because I think that's pretty much our agenda, plus what we learn from you that we should be taking on and how we handle the relationship between this working group, which is increasingly feeling the need for a much broader consultation with the nation, and a national symposium of some kind.

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