DR. CROW: The question you raised about the difference between identifying a suspect by an eyewitness that says that this person was yellow and using a DNA sample that gives a likelihood ratio, the certain number of times more likely to be Oriental than not, in some ways there's no difference in these two things, but yet they're certainly going to be treated differently.

This is open for questions, not only questions but suggestions for further action.

MR. CLARKE: I was going to mention, in the area of looking -- when you're exploring the issue, obviously, of similar profiles, either sibling relationships or others, that actually goes on in fingerprints right now.

While no two people have the same print patterns, there is, at least examiners tell us, a great deal of similarity between siblings.

Now, I don't know how far that extends out to the extended cousins and so on. So, at first blush, when given siblings, examiners frequently take a lot longer to be able to tell the two apart.

MR. SMITH: That's very useful. One of the things I didn't mention but it seems true is that there's a temptation both for the scientists and for the lawyers, when raising these issues, to dispose of them, from time to time, by saying, well, that wouldn't be a sound way of going about an investigation.

It's just so obvious to me that that's not the way that this group can manage those questions. If we constituted ourselves, which we could, as offering advice on what sound investigative practices were, we would have to differently constitute ourselves. We could have an interesting working group about that.

But those are questions that are going to come up, no question about it.

MR. CLARKE: And the continuing aspect of it, with automated searches of fingerprints, when a top candidate comes up, occasionally -- because I don't think it happens very often where the sibling aspect is explored, but usually dealing with siblings and so on, we deal with that more in the factual context than the DNA context, but not exclusively. Sometimes that's the only tool left.

MS. BASHINSKI: We've had several cases where we did point to brothers and, in fact, where that was found to be a useful investigative lead, and it's very reasonable, based on the statistical evaluation that you described, to make that inference.

MR. THOMA: And of course, there is the privacy issue, and we did have a bit of a heated discussion. No matter whether there's the authority to go after it or not, you can worry about that later and figure it out.

MR. ASPLEN: I should have asked you, Jeff, and Barry, both of whom were there, whether there are other things that you think we ought to be reporting out to the full group.

MR. THOMA: If I could real briefly, we kind of divvied up who is going to write which parts of our draft.

I'm going to talk about each state's position regarding DNA evidence, a little bit of our position on lab proficiency and admissibility, but only with regard to weight and following NRC recommendations, as opposed to actual admissibility, availability, through CODIS, to the defense.

Phil Reilly is going to do all else regarding privacy except for access to the database.

I'm going to get to an assignment I'm doing with Ed Imwinklereid regarding prosecution standards, and Barry and I, now that I've got the draft of the post-conviction, we're probably going to make some changes for our legal issues but probably conform pretty much to their draft, and then the ability of the defense to do testing if the prosecution has it, we again had a minority of one, but Professor Imwinklereid and I are going to put one position forward, and I think our minority of one is going to put the other position forward, and we'll have both of those. I think we can bring those out.

We have a meeting, like Michael said, on March 15th, and hopefully we'll make a little more progress in that area, too.

I would like some input from the rest of the Commission -- and I apologize, I didn't talk to Michael about this, but he brought up Dr. Warrett's discussion with us on the dragnet use of the UK and its ramifications in the United States on privacy, and hopefully, perhaps when Phil is here, maybe we can have that during one of the discussions to see what his position or the rest of the Commission's position is on that.

We're getting to where there are certain positions with regard to all arrestees giving DNA evidence and everything, and these are issues, but Michael and I haven't figured out whether that fits within legal issues or we want some direction as to whether it does or not.

DR. CROW: And then we have quite a bit of discussion of this tomorrow.

MR. SCHECK: In terms of fingerprints, I'm very intrigued with what Woody says about fingerprints, and one of the things that perhaps, Chris, the staff could help us with, or someone, is -- you know, the analogy is being drawn, certainly the British adopt it and Commissioner Safir in New York adopts it, and others, legally, I think, are going to push it, and that is treat DNA profiling the same way you treat fingerprints, and there are two points -- first of all, I'm amazed that there's actually, for lack of a better term, fuzzy or low stringency searches in the fingerprint system. I'm amazed to know that really goes on. Does it really?

MR. CLARKE: You mean, for instance, in an automated search? We'll come up with a candidate list, and number one is usually the person who left it. Is that what you mean?

MR. SCHECK: Well, I mean the issue -- to focus it, the issue that we have with the DNA data banks is literally do you program the computers to look for an exact match, or do you look for low stringency match, at which point you begin to investigate the relatives.

Now, rising in the context of a database, that is a distinctly different issue than, as we discussed at the last meeting with Chief Hilliard in the sex abuse case in Chicago, the rape/homicide case in Chicago with those two young children, is that it's very different when you have probable cause to obtain a DNA sample from a suspect and you come up two loci short and you begin looking for his brother.

Those are two completely different issues from the point of view of the Fourth Amendment, as far as I'm concerned, and as we all know, the database issue, programming it for low-stringency searches, was addressed in NRC-1 very, very forcefully, saying don't do it, and I think is CODIS policy, as Paul has pointed out on a previous occasion.

But I'm wondering about fingerprints. I mean to the extent -- do we really have a data bank of fingerprints of unsolved cases? Is that really actively utilized in many jurisdictions, and do we do these low-stringency searches?

I mean knowing exactly how we treat fingerprints, I think, would help us a little bit, and I'd love to see some data on that.

MS. BASHINSKI: Certainly, in our state, we do have files of unsolved cases which are routinely checked against new people added to the database. The searches are not deliberately low-stringency, but as you know, you get a hit list regardless of whether or not the correct person is in the candidate list.

My experience is a little different. It is true that the fingerprint patterns are similar among sibs, and you can sometimes -- for example, all arches or something like that, which is very unusual, but unless they're identical twins, I think, you know -- I hadn't heard it phrased quite the way you did.

General pattern is what we're talking about, not seven points but not eight.

DR. CROW: If you go to ridge counts, then there really are these correlations.

MS. BASHINSKI: Yes, ridge counts and general patterns but not the minutia on which the identification is based.

With regard to you other point, the cases that I was referring to were not low-stringency searches. They were situations where we searched something, we came up with seven out of eight alleles in a match, quote/unquote, "match." That is suspicious. That's information that's useful.

MR. SCHECK: A second point for Michael, just in terms of trying to put the legal categories on the scientific issues, which I guess is my official lot in life, is that, in terms of looking at all these medical issues that Judge Reinstein was addressing before, and this fellow who has the impulsivity gene, who thinks it's going to come into -- in mitigation, I mean I would see this whole issue, besides the civil commitment, is that, remember, you know, legally, we all know, at sentencing, the standard for admission in sentencing is completely different than at trial and that what's going to be used for mitigation will also be used for enhancement, and there is, under the law now, really nothing that -- you know, I mean, look, the United States Supreme Court has said that an acquittal can be used to enhance the sentence of somebody under the sentencing guidelines and that the threshold for admissibility of evidence is so much lower than anywhere else, you know, you'll be able to -- certainly, a judge is going to say I want to hear everything you've got on the genetic profile of this individual being dangerous, and so, I really do believe -- I don't think we'll ever have enough in the short time frame that we have to produce anything, you know, huge on the medical potential here or the predictions, but I think we have to find the right legal category and point out where it might or might not be coming and what kinds of warnings we should give to the system.

MR. SMITH: So, Barry, is it sort of a combination of pointing to likely directions from which future problems will be coming, sentencing an area where, depending on the progress and direction of the human genome project and all of that, but that there are worries, limits that need to be identified at the same time, this being an appropriate place to do it, on how people ought to be thinking about that?

MR. SCHECK: Yes.

MR. SMITH: Relevancy isn't the real test of utility here.

MR. SCHECK: Yes. And your very eloquent encapsulation of the two different impulses really comes to bear here, because I think a good argument can be made that, even though we won't have a really good handle on the genetic antecedents of behavior by August or in one year or two years or three years, we may have a better handle on what -- looking directly -- what we can say legally about the potential for this and the dangers. I think we may have a better handle on that.

I'm very encouraged that Dr. Crow thinks that the legal inertia is good. I'd like to throw some more at it in this area.

MR. THOMA: Let me agree with Michael. I think you always give us additional assignments, but to be honest, this is fair, because if we just use PET scan as an example with regard to impulsivity, six or seven years ago they hadn't made the progress that they had with regard to impulsivity or with ADHD or several other aspects that PET scan can now, you know, discriminate or decide between.

MR. SCHECK: And it should be pointed out with PET scans that the first use of PET scans, which in my judgement were extremely questionable scientifically, were done in mitigation in death penalty cases. So, that's where this stuff is going to come in through the back door.

JUDGE REINSTEIN: I think there's actually a case -- and I might have it back at the room, and I'll bring it down later, or tomorrow, and it's out of Delaware regarding this predisposition toward aggressiveness or violence, where it was utilized in mitigation in a death case.

MR. ASPLEN: So, it sounds like, in the event that we do, in fact, hold a national symposium, that this is certainly one area that we should devote a significant amount of time and resource to.

DR. CROW: Are there other comments?

[No response.]

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