DOCTOR CROW: Next the Legal Issues Group so, Mike, let me call on you.

MICHAEL SMITH: Well, I am handicapped today, because I don't have David Kaye with me, as I did in Santa Fe, and I was told what I ought to do is incorporate by reference everything that David said in Santa Fe and then shut up, but...

Let me do a couple of things. One is not to try and substitute any reports from my mouth for David's report on behalf of our Working Group on the Fourth Amendment, Fifth Amendment questions.

David and I, and David through me, seek whatever additional points, questions, that folks have, and this is intended to be a fairly comprehensive treatment of the questions that he addresses and seems to be. But just to remind you of what they are, in the paper itself, David addresses, rather quickly, the question whether there is any problem under the Constitutional protections against incrimination. No, there is not. Whether under the due process of the Fifth Amendment and the Fourteenth Amendment, there are problems with the database methods that we are pursuing. Answer again, no. And you'll see so long as the government provides reasonable and effective safeguards to ensure the confidentiality of DNA samples and data. Just exactly what we were talking about this morning. So that there we didn't find the legal issues go so much really to talk about, but we did spend a lot of time, and David's memorandum spends quite a bit of time taking apart, as carefully as he can, the Fourth Amendment interests, that is the interests against unreasonable searches and seizures.

And in conclusion, because he goes to virtually everything we could think of as sort of subparts of that question, dealing with the invasiveness, the relative invasiveness of the seizure, and whether or not different methods of collecting DNA samples for profiling are searches under the Fourth Amendment. They are a critical piece of the analysis, because the differential invasiveness of the methods of collection matter a lot in the constitutional jurisprudence and probably in the, as this suggested, in the political consciousness.

But in any event, he does that fairly thoroughly and ends with the question whether skin scrapings constitute search, an interesting question. And the answer to that question might have a great deal of effect on some of the things we were talking about this morning. If it's not a search, I think both legally and politically, because of a slightly different set of questions; but I think that report also suggested if it's not a search, we are not there yet anyway. And so we ought to assume that the collection, the compulsory collection of a sample for profiling is a search or seizure under the Fourth Amendment. The question then becomes whether or not given this invasiveness it is a reasonable one in the absence of a warrant.

And David just goes through that stuff pretty well, too, and I think concludes, as we did as a group, that there isn't really a Fourth Amendment problem to the collection, the compulsory collection of DNA samples with the least invasive methods if they are properly stored and the security is properly maintained.

You might look at -- well, you just might take my word for it, but one of the things is that he hasn't fully developed, and I think after this morning's discussion, he probably should, is he notes that strain of the jurisprudence that focuses on whether or not the seizure seizes something that can reveal private medical facts, and it seems to me that the storage of tissue question might turn out to have some importance to that, but David doesn't address it directly. You will see that discussion on page 19 of his memo.

And that is where he speculates a little bit about some of the potential future methods of collecting DNA samples for profiling and whether or not they are searches, and whether or not if the tissue is not retained, we don't have something that is a routine non-Constitutional question. And that is an interesting place for that to end up, if that is where it ends up. And I guess until I heard this morning the luncheon presentation, I thought perhaps we were closer to that than we are.

Now, not to avoid any discussion, because we need comment and feedback on David's discussion of those Constitutional discussions. I want to tell you, because we have already discussed them in Santa Fe as well, something of what remains of our work that we plan to report to you and submit to you before the end of our time, David is going to work with Ed on a report covering abunch of topics. Briefly, they include questions that have been raised here like fuzzy searches and the admissibility of evidence questions. I don't know what they are going to do in that. That is Ed's territory, not mine at all, but I think they are going to talk about or discuss a bit the questions raised very early on in this commission's deliberations about methods for addressing admissibility questions when science or technology changes, science courts, panels, experts appointed by the court, that kind of question, and take a look at some of the literature on that.

They are going to do something on the records of proficiency testing and have their use in the admissibility of evidence, error rates and rules governing their admissibility, that is admissibility of the error rate evidence; and then finally some discussion of the effects on the rational for statutes of limitation on prosecution; the extension of time for prosecution, and whether or not some of the DNA technology affects or ought to affect state deliberation about what their rules should be on statutes of limitation.

PARTICIPANT: Typical profiling, too?

MICHAEL SMITH: Right, and some discussion of the development of and the use of, you know, typical -- what was it?

JEFFREY THOMA: Phenyl typical.

MICHAEL SMITH: Phenyl typical profiling. But I don't think they are going to go into that. We are not going to go into that, unless we are directed by the rest of you to the extent that we went into the Fourth Amendment questions.

Now, let me ask you -- let me sort of put to you some propositions that are at the edge of what we are doing. That is there are questions in our minds that come up at each of our meetings about the use by law enforcement for investigative purposes of databases, other than databases specifically maintained for law enforcement purposes. Now, this is not so much because it's a current practicality, but because of thoughts we have had that it's not unlikely in the future, particularly in special kind of cases where we have crime scene evidence and no hitting CODIS, that access to and use of DNA databases, particularly digitized profiles, could be of enormous assistance in the investigation of crime.

So there is a set of issues that haven't really been addressed that we should be looking at and that are developing as the technology develops that we think we have some obligation to take a look at. We have asked Doctor Forman to prepare a little report for us on the feasibility of and the sort of proximity of feasible searches of this kind, but medical databases, military databases, research databases, other places where profile information that could be identified to persons are potentially of great use in crime investigation.

And so -- okay. That seems to us, relates a little bit back to the question about the collection of DNA profile information from persons other than convicted offenders, the development of larger and larger groups of persons, who are appropriately targeted for sample collection for these purposes. As the invasiveness of the sample collection goes down, these begin speculating about much wider groups, and I just want to -- this seems to me to be where we were at this morning and where our committee is, that is, asking questions about the balancing that goes on, if we are using, if we have a special DNA profile database based in the criminal justice system and law enforcement, the limitations of that from a victim's point of view and a crime solving point of view are fairly clear, because we have got to have a failed criminal justice intervention in order to have a successful one.

And in the article that was -- I don't know who put it in the packet, but in our packets was an article by Jean McEwen, and in there you will see a reference to a Harris Poll conducted in '94, in which 57 percent of the thousand in the sample found it acceptable to build a database with DNA profiles at birth. Now, that is a different way of putting the question and getting the answer to what is the American public tolerance for DNA databasing. But it's specifically as to profiles, partly for the reasons, I suppose, or related to the reasons that in the British system they don't retain the volunteered samples. It seems to me further exploration of that is desirable. It isn't so much or exclusively a question for the Legal Issues Working Group, but it seems to me that it's coming, that the accessibility of digitized databases of information, which could be useful in the investigation if you have got a crime scene sample is on the horizon, and so we want to take a look at that at our next meeting.

What else have I got? That is all. Questions, or comments, or further direction from the commission.

AARON KENNARD: Go ahead, Barry.

BARRY SCHECK: No. No.

MICHAEL SMITH: Fight it out.

AARON KENNARD: I have in regards to the invasiveness, I am wondering if the committee would like to hear from what is on the horizon, if I could ask you to get up and speak to what you have.

BRIAN WARD: I am Brian Ward. We are talking about at lunchtime the laser.

PAUL FERRARA: Lancet?

BRIAN WARD: Yeah, I think that Doctor Ferrara certainly is more knowledgeable about that than I am.

PARTICIPANT: I think that is technically known as the poker thing.

BRIAN WARD: We were talking, in fact, that there is a little poker thing out that actually has a potential to nick your fingertip with a laser and also take a fingerprint and blood samples simultaneously.

MICHAEL SMITH: I mean to put that in David's frame, as I understand David's view, because of its -- because of its engagement of the internal body, even though by laser, it constitutes a search or seizure under the Fourth Amendment, but mind you, right, these are kind of two interrelated and mutually functioning things. How invasive is it, and what is the need for it, and all that sort of stuff. And invasiveness is both of the body, and the lancet does invade the body; whereas, the adhesion of shed cells not.

The question is what information can you get from it? The more information you can get that is of the medically private kind, the more invasive it is, even though it doesn't prick the skin. So I think as a legal matter, these issues we were talking about this morning, they are interrelated.

BARRY SCHECK: I had some -- it seems to me that when we write these legal memorandum on these issues that it's a really good idea to -- and we try to do this in the postconviction report, and believe me it was rewritten how many times -- to make it objective in terms of saying, well, this is what the law is, or this is what the areas are, and to try to give both sides without characterizing it. You know, these, some of these issues are not particularly good. I mean it's all like out here, but there is no question that taking blood or even a buccal swab, or, you know, a skin scraping is, quote, a seizure -- I mean a search under the Fourth Amendment from the United States Supreme Court case law. I mean we have it all the way down to the learning in that Skinner case, and it's not particularly controversial or anything to talk about. It's not a Fifth Amendment problem.

What I found particularly troubling about the way this was written and a little muddled, frankly, in that in the area of due process, which is really what we were talking about before, the bodily and dignitary interests of privacy information, which is where we are going, I thought this was a bit gratuitous. I mean there is a series of informational privacy cases that it discusses on six and seven, where he doesn't cite any cases that are to the contrary that talk about the release of -- the unwarranted disclosure of private medical facts may raise a Fourth Amendment issue, right --

MICHAEL SMITH: Fifth Amendment issue.

BARRY SCHECK: A Fifth Amendment, a due process issue. And he just says, well, I just think that is, you know -- I just think that is going to be wrong, and --

MICHAEL SMITH: Let me hold you there for a second and to defend him in the sense that Phil's paper this morning was to be input to the production of this document, and we didn't have it. David didn't have it. So to some extent there was a division of labor there that hasn't reached fruition.

BARRY SCHECK: Yeah, okay.

MICHAEL SMITH: I will report this back to him, absolutely.

BARRY SCHECK: If you take a look at that discussion from five and six, I mean I really think that that is a -- just from an objective point of view, it was gratuitous to say, well, this means nothing when, in fact, when the discussion occurs of the Fourth Amendment, and we talk about what is really the issue here, and that is it's not the initial invasion, but it's the use you make of the information, okay, that when you look at the Skinner case and what the Supreme Court is saying about that on page 17, and the rest of it, it is very clear that that is what they are worried about. Remember, it's not the mere blowing into the -- taking the urine sample or blowing into the thing. It's what you do scientifically to the analysis of that body sample that matters. I mean, in truth, from my money, this is justifiable constitutionally really on the theory that it's like pedigree information under what he calls the identification.

AARON KENNARD: Right, that is correct, identification only, and I have had a discussion with him.

BARRY SCHECK: Identification only. I think that the -- and it does indicate at the end, because he has to, because the case is expressed out about it, that the so-called special needs exception is a much tougher fit. As a matter of fact, I believe again in the interest of objectivity, he is dismissing the most important objective -- objection in terms of special needs. The so-called special needs exception has to do with doing random car stops, right, or administrative searches, or things like that where you are not necessarily focusing on the investigation of white crime per se, right. And I think it's a bit disingenuous to just say, well, when we are doing a DNA database search, right, and we have unsolved crimes in the profiles of unsolved crimes in the system, and we are now going to compare you to those that we are not really investigating you for those crimes. All right.

Do you see what I am saying?

MICHAEL SMITH: I do, but I thought --

BARRY SCHECK: It was an investigative search. That argument is much bigger.

MICHAEL SMITH: I thought you were not using that use, but rather the placement of the profile in the database.

BARRY SCHECK: You are telling me that --

MICHAEL SMITH: No, I am not. I wouldn't think of doing that.

BARRY SCHECK: No. No. No. No, I'm just -- if you examine it, it's -- I can give you the exact page, but it's really -- it's an active orifice, because it's very clear that the special needs exception turns on doing like random neutral types of searches, okay, that don't necessarily -- they are not directed at solving a particular crime.

MICHAEL SMITH: Yes.

BARRY SCHECK: And so the argument that he is making here that if we take DNA from everybody at arrest --

MICHAEL SMITH: Right.

BARRY SCHECK: -- and then we put it in the system --

MICHAEL SMITH: Right.

BARRY SCHECK: -- we are not necessarily thinking of investigating you for any particular crime. The problem with that argument, the argument that is going to be made in rebuttal is: Wait a second, in our database, we have 46,000 like in Great Britain, right, they have 46,000 specific crimes that are actively under investigation. So it fails the rationale, in my judgment, and for good reasons, because then if this is a special need then the violence gene is a special need, and the other things are special needs; and I think really, if you look at the way the British justify it, and the way in theory you are always justifying it here, which gets back to the discussion we had in the morning, is that you are telling the public and in a sense telling the court we will treat this no differently than a fingerprint.

MICHAEL SMITH: There is very little we can tell the court, if you know what I mean. It's rather that what David -- I think what David and what the committee thought is that to the extent that we are looking to these clauses of the Constitution to solve these problems for us, we may be exaggerating its power to do so. So that David might very well agree with everything you said about that, but he has the view that as this jurisprudence develops, it will not become more protected, but less so.

BARRY SCHECK: Well, that is precisely the point. It's not -- a lot depends on the rationale by which this is justified.

MICHAEL SMITH: Right.

BARRY SCHECK: And what is very peculiar, if you look at the memo, is that one issue that never really went through the courts, has never been decided by the United States Supreme Court is what right do we have to use fingerprints.

MICHAEL SMITH: Yes.

BARRY SCHECK: All right.

MICHAEL SMITH: Right.

BARRY SCHECK: As an identifier within the system. All right. Now, there are, you know, good and sound reasons for using it, okay, as a simple identifier. It's dangerous if you try to justify this on a more expansive and elastic rationale.

MICHAEL SMITH: Like the special needs rationale?

BARRY SCHECK: Like the special needs rationale, and I am just saying that I think that unfortunately this memo did not adequately address what I really see in the Skinner case, which also is a due process consideration that it is the actual use of the DNA information. You see the real part -- this issue to me, frankly --

MICHAEL SMITH: But isn't this why this morning's discussion was so important?

BARRY SCHECK: Yeah.

MICHAEL SMITH: Because you can't use the 13 STRs in the source of ways that you are referencing here in this discussion, but you could use the tissue.

BARRY SCHECK: Yes. Right. And the reason why the rationale is so important is the hard question is not so much, in my mind, ultimately whether you can craft the system that will pass constitutional muster to take it from somebody at arrest. Remember it has to be one that if you are really serious about it, you have to be able to say, we are only using it for identification purposes. There are absolutely no research purposes that can be used for this. I mean you did notice that the British said that, and many of our statutes did not say that.

In addition, if you look at this case law, there can't be any real discretion within the holder of the evidence to use it for other purposes.

So Dawn and I were talking, and I think it's an important point to note I was looking at Chief Kennard of Utah, right, in this book to see what you could do with it in Utah under your statute; and if you look at the -- if you look at the Utah description here under access and disclosure, it says: The samples shall be classified as private and the Department of Public Safety, you know, can do -- may not transfer or disclose it except as under these provisions. And then Dawn and I began discussing what does that mean, you know, who creates the rules. Obviously, the Department of Public Safety creates rules, but what standards are they using. We spent a lot of time when the DNA Identification Act was passed to make sure that it was limited to DNA identification purposes only, which is only recognition of crime scene samples and lost bodies, right, and not any other purpose. And a lot of the statutes, unfortunately, are vague, and so I mean these are the kinds of things we really ought to clean up, and it should probably be explicated more in this memo --

MICHAEL SMITH: That is good. That is helpful.

BARRY SCHECK: -- in order to make the case.

MICHAEL SMITH: I think he was pretty clear in trying and then failing in the case of communicating it to you that to ask that question in the context of a system that was constructed so that the samples were destroyed as to the 13 STRs were taken.

BARRY SCHECK: He was --

MICHAEL SMITH: That is what it says.

BARRY SCHECK: He was assuming that it is in a context --

MICHAEL SMITH: He wasn't assuming. He was just saying what if. If that then, right, then the categoric exception probably applies rather than an individual balancing.

JEFFREY THOMA: And this is in draft form, Barry. Actually, I just got some input to David even since this draft came in.

MICHAEL SMITH: And, Barry, it would be really good if you have the time to e-mail him some of these observations. I mean I would be very grateful for that.

BARRY SCHECK: Well, finally, I would just make this suggestion to you. When -- I guess we are running out of time with this commission. I would suggest that in terms of proficiency testing, error rates, and all these other kinds of issues that they are running off to write a report on that you include somebody like Doctor William Thompson.

JEFFREY THOMA: He is.

MICHAEL SMITH: This will be more of a summary report of stuff.

BARRY SCHECK: I mean we have all been through these things, and you are sending off somebody who has quite a parson view to write a report on these issues where he has already published very, very strong views that are in opposition to others, and that is a problem for me when you are trying to come up and do a report, and again I am very grateful to him for a clear legal analysis in doing the work and all the rest of it; but even here, I thought he could have made a better effort to do less characterization of what he thought were strong and weak positions.

MICHAEL SMITH: That is fine. The solution, the cure then given the nature of man and the limitations of a Working Group process like this is to the extent you can -- I got notes from this -- but to the extent you can, if you provide him and therefore the rest of us with somewhat of a contrary view that could then work with that would help us do what you want.

JEFFREY THOMA: And, Barry, perhaps I can talk with you between now and Monday.

BARRY SCHECK: Monday is the meeting?

JEFFREY THOMA: Next Monday.

DOCTOR CROW: Anything else?

MICHAEL SMITH: Just along the last point I mentioned. I mean I think I would be grateful for sort of on- or off-the-record communications about this question of the desirability in the future, some future time, of law enforcement access to other databases; and in light of that, I simply want to raise the question whether a lot of the questions that we have been debating here aren't better addressed by simply taking on frontally the question of an identification only universal database next year. But the future of DNA evidence suggests to me that that is a question that actually needs to be addressed partly for the reasons you said this morning. A lot of this doesn't look like the right place to be having that debate.

GEORGE CLARKE: I have one item I want to ask especially while we still have Lynn Fereday, and I can't recall if we heard this in the context of the commission, but it's my understanding that it wasn't too many years ago that police could not even obtain an order for the production of blood or saliva from someone who was, in fact, suspected of a crime.

Is that correct, or have I mixed the Canadian experience?

LYNN FEREDAY: I think you have mixed the Canadian experience.

GEORGE CLARKE: All right. Okay.

DOCTOR CROW: Well, have you got everything you need? Of course not.

MICHAEL SMITH: I really do want to hear something off the record then about this question of the universal database. I do think we ought to put it back on the table in a better form than we have.

Some of the other things we talked about this morning, if you think out in the years in some parts of this country, virtually, everybody who is male anyway will be in the offender database. Particularly if it goes to arrest. I am just sort of wondering if it isn't more appropriate and evenhanded to put everybody in the database and not call it a criminal justice database.

BARRY SCHECK: I hope you don't think the silence is an assent by me.

MICHAEL SMITH: Take the subject.

BARRY SCHECK: Let me see if I am understanding what you are saying. For example, blood cards, heel stick cards?

MICHAEL SMITH: Yes.

BARRY SCHECK: You are thinking why don't we just type the heel stick cards?

MICHAEL SMITH: I am asking that question, because it seems to me we ought to ask it. We ought to ask it in the interest of law enforcement, all right, future victims, all of that. There are interests balanced on the other side. I want to know what they are, because it seems to me if we don't ask the question that way, we are looking at expenses and costs to other interests of privacy and a constitutional nature that we may not need to address that way, that they are better addressed in the larger context, because basically we are approaching that larger context anyway, particularly if digitized databases, not from the law enforcement world, are, in fact, becoming available through warrants or other exception by statute over the next 20 years to law enforcement. And if that is what is going to happen maybe we should be planning that future, rather than just sort of falling step by step.

BARRY SCHECK: If that is what is going to happen, then maybe everybody will shutdown. I mean I just find -- I mean you are really talking about why don't we have universal access to everybody's Social Security number. Why isn't everybody fingerprinted from birth and have that put in, too. There is no difference, as far as I'm concerned, with that question. Why don't we take the fingerprints of every child at birth and stick into a big FBI data bank.

MICHAEL SMITH: Answer.

BARRY SCHECK: The answer is that we don't like a total surveillance society. We are still a free country, and this goes to the heart of what I have been trying to tell you people, you know. I mean everybody out there doesn't like this. They look at this, and they say, this is exactly what the plan is. That is the master plan.

MICHAEL SMITH: What I am saying -- here is what I'm saying to you, Barry. I think you should listen just one more time to this. We are going to get there anyway, and that if that is the case, if I am wrong, that is fine.

BARRY SCHECK: I hope not. That is why we are here.

AARON KENNARD: Do we not already take a footprint of every baby born?

BARRY SCHECK: We do. We take their fingerprints frankly.

AARON KENNARD: We take their footprints now.

MICHAEL SMITH: It isn't in the surgical database those.

BARRY SCHECK: Not for that purpose.

AARON KENNARD: For identification purposes.

BARRY SCHECK: Oh, you mean ultimately if they are missing?

AARON KENNARD: Yeah.

PARTICIPANT: But the only reason we are taking it is for identification purposes; is that not true?

PAUL FERRARA: The heel print. The footprint is, yes, but then the genetic testing is for a specific limited purpose.

BARRY SCHECK: Yeah, but you aren't taking that -- you aren't taking that heel print so that you could later identify a baby as to -- identify an individual as being at a particular place at a particular time.

AARON KENNARD: True.

BARRY SCHECK: You are taking it to make sure you don't mix-up the babies.

AARON KENNARD: Or the baby is missing or you get --

MICHAEL SMITH: If you had a footprint at a crime scene that was of this kind, do you think you could develop a probable cause for looking into the footprint database to see which kid it was? I just ask the question. It seems to me that you could, and that is much harder to imagine doing than searching a digitized database of --

PARTICIPANT: All right, Chris.

CHRISTOPHER ASPLEN: I mean as the person who will receive the phone call tomorrow from the Department of Justice after reading the headline in USA Today about universal databases at birth, let me just say that, you know, it is a discussion that has come up, and not just in the context of the Legal Issues Group. It's a discussion that has come up in the context of the Laboratory Funding Working Group, and if you look at issues like getting 100 compliance on your collection, et cetera, et cetera, as with everything else with the commission, there is a value in asking the question. There is an inherent value in asking the question and addressing it, even if the answer comes up no, that is not what we want to do, and there is an inherent value in the exercise. So I don't --

MICHAEL SMITH: You thank me for raising it, right?

CHRISTOPHER ASPLEN: The question is will I thank you tomorrow.

Yeah, and what we can do is we can simply, you know, put it on the agenda at a future meeting after that Working Group kind of maybe defines the issue a bit that it wants to present. Again as with much of the commission's process, the process is as important as the result as the recommendation itself.

MICHAEL SMITH: Well, then for tomorrow's papers, I was asking the question rather than giving the answer.

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