CHIEF JUSTICE ABRAHAMSON: Well, the next item on our agenda is backlogged cases with potential DNA evidence, survey results. And Dr. Craig Fraser is here from the Police Executive Research Forum and Dr. Kay Scarborough and Lyndsey Taylor from Eastern Kentucky University. DR. FRASER: Can we use the overhead?

CHIEF JUSTICE ABRAHAMSON: Sure, whatever.

Dr. Fraser DR. FRASER: I'm Craig Fraser with the Police Executive Research Forum. And we have conducted a survey looking at backlogs of rape and sexual assault cases for DNA evidence. Our survey included a total of 275 police departments and, well, law enforcement agencies. You should all have a report but I'm just going to sort of walk through on overhead some of the key findings on both the total sample, which includes large departments as well as smaller departments. Then Dr. Kay Scarborough from Eastern Kentucky University will give some specific information about small departments and then I'll come back and do a brief summary. Some of the issues that we discovered overall are that a trend is that more and more agencies are moving towards state labs, away from private labs. I think that's not an especially surprising finding but it is something that we found interesting. Also when there is funding, departments are starting to create in-house labs. Three of the large departments in our sample, the Los Angeles County Sheriff, Albuquerque Police Department and Phoenix as of 2000 will have in-house labs to be able to do their own analysis. Many of the departments, many of the agencies that we talk with do not have specialized evidence collection techniques or protocols for DNA evidence. They are using the standard sorts of things for crime scene processing when detectives are those responding to the scene that they have for any other sort of evidence. Occasionally there will be crime scene technicians that have specialized training that will help at those crime scenes and then they may be involved in the decision whether or not evidence is going to be sent forward.

We also as we talked with agencies found that many of the larger agencies especially were aware of the potential of DNA evidence in other cases besides homicides and sexual assaults but those are by far the predominant cases where DNA profiling and testing is used.

We also found that a substantial restriction in the telephone surveys that we did, we asked about whether or not they would send cases forward when there was not a suspect. About half of them said they would not but about half said that they would.

Of the 50, the numbers were actually 22 said they would not submit a profile unless they have a suspect description or a named suspect, 25 stated they submit samples in all cases. Kind of an interesting half and half split on that.

We also had a lot of problems in trying to get them to give us an actual count on the number of rape cases, the rape kits that they had in backlog. There's a lot of different counting. There's a lot of different places where those are stored. Some actually send them off to the state, they're stored there, some have them in police property, some have them in hospital refrigerators.

So, getting an accurate count of the backlogging was not especially easy to do. We also asked them about costs to get an idea of the police department perceptions were off of costs. This just provides an idea of what the range is. You'll see that in some instances, for example, the New Jersey State Crime Lab, the cost was cited to us as $1500 but you are finding other places, for example, in Miami, Dade, Michigan State crime lab at $50.

So there is a range of the way departments look at costs. Those that submit to private labs told us that the range is somewhere between 1,000 and $5,000 to get a sample analyzed.

Just a little bit about the characteristics of the responding departments, just where they come from. You can see that we had a pretty good spread over the country, probably fewer in the southwest than in some other places.

The predominant ones we talked with were municipal police although a number of county sheriffs were part of our respondents and we had a few scattered other departments as well.

The total, as I said, was 275 agencies. Characteristics of the agencies, going a little bit further, in terms of the number of sworn officers in a department. Again, as you know, there are somewhere in the vicinity of 17 and a half thousand police departments in the country. Most of them are departments with fewer than 25 officers, something on the order of 93, 94 percent.

So, we made sure that we have a number of the smaller agencies included here but then we also have a good representative of the larger agencies since they will have many more cases to process. We also looked at the number of civilians in the department to get an idea as well.

Often there is a movement in many law enforcement departments to use civilians as crime scene techs or as laboratory analysts. You will see that most of the departments still have not very many civilians.

Now, again the larger departments do have more. That's where you will get often the specialized expertise to do some of this work. And then again just to give an idea of the spread of population size, you'll see that we've got an awful lot because there are so many departments in the country that are small, ranging to even several that were over a million.

And, the one that was missing data was interesting because we discovered this through our analysis once we had everything entered and it was a county that's not listed in the UCR and they didn't list their population as well so that's why we have one that's missing. We asked the question about where does your department process DNA evidence.

Again the overwhelming response was through the state labs. A little bit of others out there, some were county labs, some were private labs but again the majority. Now, the no response was interesting. That is predominantly from the smaller sample.

Dr. Scarborough will tell you a little bit about that in detail but what we think is going on there, some small departments have had no real need to process evidence because they have not had cases that would have that evidence that would merit processing.

So, they don't know where they would send it. It's kind of an interesting sort of thing that until they get that, it's not a particular issue for them. We made some comparisons between the large departments and small departments.

Again, the breakpoint is pretty much 50,000 in population between a large department and a small department. We asked them, does your department currently assess evidence to determine whether potential DNA samples might be present?

Again we're talking now about rape and sexual assaults. And, you'll see over all, over all departments about 70 percent said that they did but that is more heavily skewed in the large departments where almost 87 percent said they did assess evidence, whereas the smaller departments, the number that said they did is about 57 percent. There's seemingly a greater awareness of the part of large departments and I think more knowledge on their part about the potential.

COMMISSIONER THOMA: Just so I understand what you're saying, your differentiation between large and small departments is a population, a base population of 50,000 or more, correct?

DR. FRASER: Correct.

COMMISSIONER THOMA: State and county?

DR. FRASER: Correct.

COMMISSIONER THOMA: Okay. Thank you.

DR. FRASER: You've got another one in your packet that I unfortunately seemed to not have with me here. It's out of sequence. The next one I think in your packet should describe their forwarding of cases they think do have evidence on to be analyzed. There there's not the same difference between the large departments and the small departments.

When there is potential evidence, only about 30 percent of those cases seem to be sent forward by large departments; small departments, I think it was about 21 percent, about 22 percent.

So, even though there's more assessment by the large departments of the potential for evidence, the actual forwarding for analysis tends to decrease. The difference between the two tends to decrease.

COMMISSIONER SMITH: But is that in your view because having analyzed they don't send forward improbable cases, or is it something else?

DR. FRASER: We've got some more data on that and there's some reasons we think that's going on. And I'll jump forward to that because as much as anything I think that's, the perception of large agencies are backlogged, that they don't move things forward because they think it's going to take way too long to get it.

COMMISSIONER SANDERS: This report also said something about they don't think, people going to court and doing some other things, they don't forward them either.

DR. FRASER: That's right. That's right. There's an awful lot of cases and we could not get from them very precise details because not only is it a perception of a backlog, there's also a lot of cases that don't go forward because they're not going to be prosecuted. There's an unwillingness to testify. It's unfounded.

And there are times, too, when district attorneys will make a decision about the case. They don't go forward in those instances either. We tried to look at whether departments had a policy governing DNA submissions and I think we found that only about 30 percent of the large departments did, about 22 percent of the small departments have a policy governing submissions.

We tried to get some idea of what percent or some numbers, what percent of the cases reported their agency have potential DNA evidence. And, each agency cited that.

So, for example, you'll see that the bulk of cases here, many departments think that they've got somewhere between 25 to maybe close to 100 percent of their cases have potential evidence.

There are only a few departments that said, gee, we don't think very many of our cases have evidence. That's right here in this, this number.

So, the way we asked the question was what percent of your cases do you think have potential evidence. And again differences, larger departments here generally think that more of their cases have potential evidence, smaller departments tend to say no. And then we've got a fair number here, too, that just didn't know. And we've got the unknowns where they just weren't sure what the evidence was.

Now, the next question we asked was about, all right, of those cases that do have potential evidence, what percent do you send for analysis, okay, of those cases that do have potential evidence what percent do you think, do you actually send for analysis.

And, we had a number of departments here, you can see this 76 to 100 percent, very high, all the way through here, that they're sending everything they think have potential or a high percentage.

So, when they say there is potential, there's a fair amount of cases being sent off by quite a few of the departments, not all of them, mind you, but a number of them look at it that way. We actually tried to get them to give us a number of the rape kits that are not submitted for processing. We asked that very specifically. And 113 departments said they had no kits backlogged.

Again, some of them were many of the small departments, who perhaps had very few rapes reported. Again we're dealing with a number of small agencies that don't typically have evidence that would be sent. We also, on the other hand, had 14 departments that had more than 500 cases backlogged.

And, you can see that each group counts for substantial. So, of the 232 departments -- of the 275 departments, 232 gave us an actual number of backlog. And when we added all those up, it's about 31,000 cases from the sample.

Now, the sample size represents 118,000 police officers across the country and the total population served by these agencies is 46 million. We tried, we were talking earlier today trying to come up with what we thought was a reasonable guess as to what the total number of rape kits across the country backlogged were and our very, very rough estimate is probably in the vicinity of 150,000. That's trying to extrapolate from these numbers based on the large departments, also based on the relatively large number of small departments as well.

So, it's somewhere in that range, again with lots of problems the way everybody counts. The counting is very different from place to place.

COMMISSIONER SMITH: Can I ask you another clarification question of the counting? In this display, where it shows 500 or more, is that of the rape kits in which they've assessed it's likely that there would be evidence worthy of analysis or is that simply a number of rape kits not sent?

DR. FRASER: Total number not sent.

COMMISSIONER SMITH: So, so where they've made judgments that they're not worth sending, that would be part of the 500.

DR. FRASER: It would be. We couldn't find any department that could break that number down for us. So, it could be actually if I take, let's say we take that 150,000, the number that actually might be useful for prosecution is probably a bit less than that. How much less --

COMMISSIONER SMITH: Depends on how good their judgments are and whether it's worth analyzing.

DR FRASER: Exactly, exactly. And, we also asked another question, a series of questions about barriers because again we wanted to know something about what were the reasons, just back on your question, sir, about what were the reasons for nonsubmission.

And, you'll note that what we did is we asked them to rate a number of characteristics from this is a real barrier, this is a very important barrier down to it's not a very important barrier. A one means it's a big, it is a large barrier. A six would mean it's not very important as a barrier at all.

And, you'll see that there's some interesting differences between the large departments and the small departments. Really starting at backlog at the laboratory is perceived here by large departments as more of a barrier, as is the lab guideline restrictions, as is that the department limits the cases.

Each one of those there's a substantially, it's viewed as a more important barrier to submission by large departments than small departments. The one that didn't seem, was the lowest barrier that anybody talked about was the department's waiting for new technology. So it's not a technological question as it is sort of a system flow question.

We also broke down to look at reasons for nonsubmission those with backlogs of more than 50 cases, those with backlogs of less than 50 cases. And, again, the difference now is financial restrictions becomes one. You'll see the difference between this and this. You will also see that the backlog at the laboratory is perceived of by those with lots of cases stacked up as a bigger barrier as well.

And you'll see again the, both the lab guideline restrictions and the department limits cases. I think that as we did some more discussion with them, that's often that question of whether or not there's a suspect profile or it's no suspect in mind yet.

Now I'll let Dr. Scarborough talk a little bit about the smaller departments because there's no many of them in the country and there's some different problems with them.

DR. SCARBOROUGH: Thank you. I'll give you a little background while we're working with the power point presentation. As Dr. Fraser said, small departments compose a or comprise a substantial amount of law enforcement agencies in the United States today. That's over 90 percent.

So we need to take a particular look at them to see if there's anything different going on with those agencies as opposed to the larger organizations. We had 153 agencies that we surveyed and our selection criteria were that the agency had ten or less officers and the population was 50,000 or less.

I want to go through some of the just demographic characteristics of the agencies and then get to the particular DNA questions. Most of the agencies that we survey were municipal agencies, as was with the total sample. County police and sheriffs made up the rest of the sample.

In the pilot survey, we looked at other kinds of law enforcement organizations like campus police, airport police but none of them had any occasion to deal with DNA evidence according to the ones that we surveyed.

As you can see, the majority of sworn officers ranged from two to fifteen, which reflects what Craig said, was very few having over 16 percent, for total sworn officers in an organization. And this is representative of small organizations as a whole in the United States.

We actually see the numbers dropping a little bit to ten officers or less when you look at all of the law enforcement agencies in the United States today. Very few civilian employees in the smaller organizations. You can see, only 70 percent had between zero and 6 and that was usually one or two, if that many.

The jurisdictions that these agencies served were less than 14,000 primarily, which reflects the total law enforcement population nationally as well. The region breakdown for the small agencies was similar to that for the sample as a whole. And the southwest, the reason for the limited amount in the southwest is because there are fewer states that actually comprise that categorization.

We looked at the DNA evidence collection with a specific focus on the rape and sexual assault crimes and then at the state and national offender databases. It's important to realize, too, that you are only talking about the sexual assault and rape cases and what their frame of reference is in small organizations.

The first question that we looked at was whether or not the department assesses evidence to determine if DNA evidence might be present at all. And over half of the organizations said that they did. Consistent with the larger departments, 78 percent of the organizations did not have any policy.

And as far as policy and procedures, they relied on their state crime labs for direction in that regard. Ninety-two percent used the state crime labs and a few organizations used other private organizations for analysis.

What percentage of rape and sexual assault cases reported to your agency have potential DNA evidence? If you look, 30 percent did not know this and between 50 and 100 percent, consistent with what Dr. Fraser said, these organizations have assault cases that have potential DNA evidence. And we found that pretty consistent.

Again when we asked them what percent are analyzed of those cases, you have a substantial amount that's unknown; that would be 35 percent. And you see the percentages decline between 50 and 75 percent. Where they were pretty consistent in the previous question, they dropped tremendously when you're asking them which cases are actually analyzed, dropped from 15 to 7 percent and 16 to 4 percent, respectively.

Asking them again how many completed rape kits does your department have in storage, and frequently in talking with these organizations, they would say -- and you have to understand, we didn't correlate this with criminal activity -- they would say that it had been a long time since they had a rape case or sexual assault case that they had to deal with.

But it's also quite apparent to us that they didn't look much beyond that in terms of the utility of DNA evidence beyond homicide and sexual assault and rape.

In other words, they wouldn't consider or be likely to consider potential DNA evidence as being useful for a property crime. Back to the other slide, you don't have to go back, Lyndsey, but between zero and 2, the mode for that question was zero. Does your department submit samples to your state's offender database and over half said no, they did not, with 38 percent saying that they did.

The no response was their not knowing what their state's offender database was and there's a lot of confusion because we asked them, you see in the follow-up question about the national database, does your department submit samples to the National Offender Database and even more said no, 67 percent and with yes saying 7 percent.

And the no response then was, appeared to be confusion on their part with respect to submission policies and procedures. They know that they rely on their state crime labs but beyond that they don't really have clear guidance as far as DNA evidence collection is concerned.

Although there were consistencies in the large and small departments, it appears based on conversations that we have with these organizations and organizations that we work with on a regular basis, their knowledge with respect to utility of DNA evidence is very limited at this point in time and they don't get very much outside the scope of the rape and sexual assault crimes and homicide.

And I think as Dr. Fraser said with respect to the perceptions of the backlog, they know that they deal with the state crime labs and they know that the state crime labs are backlogged but they don't know much beyond that.

When we look at issues of training, we had another question that we asked just the small departments about training on DNA evidence collection and about a quarter of them said that they had some in basic academy training and 36 percent said that they had some supplemental training, that would be after basic Academy and in-service training to be in-house or provided by another institution.

Six percent said that they had some combination of basic and supplemental training but 23 percent said they had no training at all and 9 percent did not even know.

And individuals that we spoke with in doing these surveys were usually chiefs of police or sheriffs or the investigator in the organization, or other, frequently in the small departments, everyone will be trained as and function as an investigator.

So we feel confident that the people that we talked to were knowledgable to the best of their abilities with respect to the DNA evidence collection.

DR. FRASER: The sort of summary I guess is the, for large departments the single largest barrier seems to be the perception of backlogs at the state crime labs or the crime labs. Now, that's fed partly by the limitations by guidelines that seem to restrict to suspect cases. Factoring into that is a general lack of specific DNA collection protocols for crime scene.

That seems to be a bit different now between the small departments and the large departments. Small departments, I think it's a little bit more lack of familiarity with the kinds of cases because they don't have as many of those cases as well as even their understanding there's some backlogs. We didn't pick up that financial concerns was the big barrier.

It's more capacity or systems capacity for the analysis, seems to be the kind of primary problem. Are there questions that either myself or Dr. Scarborough can answer?

COMMISSIONER DAVIS: I have a question here. As you begin your survey of the small departments, did you exclude those departments which when they have a homicide or a rape call in another agency to assist them? I mean, that's very common in Florida, at least in Dade County.

The small department will handle routine materials, routine cases but when the homicide occurs or a rape, then there's a larger department that has the laboratory, the crime scene personnel and they come in and take over.

DR. SCARBOROUGH: And frequently they would ask for the assistance of the state police or another agency. And we understand that that happens but we were just asking them about their individual response as an agency so we didn't ask them about additional assistance from organizations.

COMMISSIONER DAVIS: The question I was wondering, in some of these agencies, they may have answered your questions, albeit they never actually are in the decision making process of what's done with the evidence.

DR. FRASER: That's a real possibility. Again we weren't dealing with homicide. We were specifically only dealing with rape and sexual assault. And yes, there's some small agencies that in those cases will bring somebody in but many small agencies will still attempt to process that themselves. So there is that restriction on what we were asked to look at, which was just rape and sexual assault.

DR. SCARBOROUGH: And I would say we didn't ask them specifically about homicide. That was something they offered to us. In other words, they were categorizing the rape, sexual assault and homicide together and then not looking at it beyond that or handling it a different way.

COMMISSIONER BASHINSKI: I have a question about the demographics of crime in these agencies. You said that 90 percent of the departments are these small agencies. What percentage of the sexual assault crime that's reported in this country would you say is handled by that 90 percent of small agencies?

DR. FRASER: A much lower percent.

COMMISSIONER BASHINSKI: Do you have --

DR. FRASER: No, I don't have, I don't have those numbers with us. Yes, sir?

COMMISSIONER SCHECK: To what extent does your survey take into account the destruction of samples in, particularly in nonsuspect cases where no one is immediately apprehended, how long do they hold them and how many --

DR. FRASER: We didn't ask that specifically but what we know having been in a lot of agencies of different sizes is they'll keep it forever. I mean, in a nonsuspect case, it is rare that evidence that a police department has is going to be destroyed.

The cases, especially a special rape case will be opened, I say forever, there's probably some limitation but police property rooms around the country are burgeoning full of all kinds of evidence. And even on very, very minor cases, there's a real reluctance to destroy anything that might eventually solve a case.

COMMISSIONER SCHECK: So your estimate of 150,000, that applies to, that's the entire country.

DR. FRASER: That's a rough estimate and that would be going back years. That's not an annual basis. That probably goes back quite a number of years.

COMMISSIONER SCHECK: And do you think that that's an understated figure, or, I mean, if they're saving, how many unsolves are there.

DR. FRASER: Well, that's based on what they told us, their backlog. We didn't, we didn't, we didn't put anything specific on their backlog. I mean, we didn't say cases for 1999 or anything like that.

So, when they reported their backlog, their backlog is as far back as, as they count it. And so of the departments that we talked with, which is representative of 46 million, they told us they counted 31,000 cases for those departments.

So, trying to extrapolate from all the rest of the departments that we didn't talk with, especially the small ones, that's where we're getting into the vicinity of 150,000. But again that is in all probability all the cases in their inventory.

COMMISSIONER SCHECK: But you're assuming that they don't destroy them.

DR. FRASER: I'm assuming that but we work with a lot of police departments on a number of projects. We do a lot of studies by going and looking at departments and sometimes when we review a department, we'll review property in evidence and again the practice in the profession generally is don't destroy anything.

COMMISSIONER SCHECK: Did you compare these results, their estimates of how many they have untyped with these general statistics on the number of sexual assaults reported and the number solved.

DR. FRASER: No. Because the numbers don't match in terms of time periods. The question is how far back you would go. So, for example, should we look at the last 20 years of sexual assaults? It becomes a real difficulty making sense of numbers with such different bases.

We did collect data for the larger departments of the number of sexual assaults reported for the last year we could get for 1998 and that seemed, that number compared with the backlog convinced us that the backlog they were counting was not just for 1998 cases; it does go back farther. How far back, that was tough for us to tell.

COMMISSIONER SCHECK: What was the number for the backlog for just one year?

DR. FRASER: Um --

COMMISSIONER SCHECK: I mean for the unsolved, which was one year?

DR. FRASER: We weren't able to get the unsolved for a single year.

COMMISSIONER SCHECK: Then I don't understand your answer.

DR. FRASER: What we did is we took the number of reported rapes --

COMMISSIONER SCHECK: Yeah.

DR. FRASER: -- and looked at that number, which, unfortunately I don't remember off the top of my head. We looked at that number, compared it to the total backlog. And the total backlog for large departments was larger than the number of reported rapes for that same department, whereupon we concluded that when they told us about the backlog, that included cases for previous years. But I don't have a number for you in terms of the degree of that difference. Yes, sir?

COMMISSIONER GAHN: Perhaps some of the police officers can comment on this but my experience is that our police, as soon as the statute of limitations hits they're destroying that evidence. They have so much accumulated. And that's one of the battles we kind of have as prosecutors with our police, to hang on that. But generally my experience has been the police want to get rid of evidence, they want to destroy it, just to make room and usually it's at the statute of limitations.

COMMISSIONER CLARKE: Actually, Norm, I was going to say, that's something we wrestle with in our jurisdiction as well. Police agencies do want to destroy evidence. They have a great desire to generally at the upper level, that is, large departments.

But something that we're having to wrestle with, and other states are as well is particularly with sexual assault crimes, more and more jurisdictions are making versions of those life crimes so that they can serve life in prison, which has the affect of making the statute of limitations in many jurisdictions longer if not eliminating it completely.

So, consequently if there's a six year statute of limitations and the law enforcement agency may have a policy of destruction after seven, all of a sudden now that policy doesn't make sense because in essence the person can be usually prosecuted for a life crime now if they commit a forcible sex crime and consequently there may be no period of time safe to destroy that evidence.

COMMISSIONER THOMA: And that's a good point, the Frazier case that our Supreme Court just decided let's the state of limitations go back retroactively, too. So, it's a dangerous area.

COMMISSIONER HILLARD: What I would like to do is ask Commander Cronin, who is the commander of forensic services for the Chicago Police Department, to expound on our policy. Tom, are you back there?

COMMANDER CRONIN: Yes, sir. I'm Tom Cronin, commander of forensic services in Chicago. We likewise are having the same problem. When we have, in fact, Superintendent knows, I just did, in my budget asked for some more freezer space. When you have the postconviction cases, especially, up until several years ago we used to destroy evidence for misdemeanors.

It was after three years we could destroy it because statute of limitations up, for felons except for homicides was 7 years. And we just can't do it now.

We have just taken over the old Sears Roebuck warehouse on the west side, a huge, if anybody was from Chicago and knew the old Sears building at Homeland and Arlington is now going to be our storage and the state has now, since the state does all our analysis, they're saying now, we can only keep it for so long, you have to take it. And so we have an incredible amount of problem of where to store this stuff and how long.

Like we say, once you have your three strikes you're out, you got, you have people who are going to be incarcerated for life. And 25 years from now they decide they want now the analysis done. As we see now in our very first cases of DNA where we have now looked at postconvictions and some people have been released, prisoners are saying well, 25 years from now the technology will be much better, maybe the discrimination will be much better, maybe there can be some doubts so maybe I can get out for a new trial.

So, we have just got to find something to do if we're going to say, if we're going to extend the length of prosecutions, which some people have also talked about, we've got to find some storage spaces because we're keeping stuff forever and we're going to have to.

COMMISSIONER SANDERS: It's been my experience that with the, especially with the IECP and traveling within the departments throughout the nation is what Craig said was right. There, the evidence lockers are overflowing with evidence that the people don't want to get rid of.

And everybody is talking about coming up with money with how to enlarge the storage capacity and all that other stuff. Though a court orders you to destroy evidence for lesser, less serious offenses, I don't know of hardly anybody except maybe the big agencies but I can't imagine a small agency anywhere getting rid of the evidence in a serious crime. And that's after adjudication.

COMMISSIONER CLARKE: One of the greatest concerns is less with law enforcement, more with the courts. Because as the holders of much of this evidence, they frankly I think at least in our experience destroy the evidence more than law enforcement does.

DR. FRASER: Well, I think that's true. Phrase phrase part of the problem is just the lack of good tracking systems for evidence and what's there. Now, we're starting to see some of that now but there's real problems of even always being able to easily say here's all the things we think the statute of limitation is up on, we would like to get rid of this.

It's just very difficult because we don't -- the technology is changing dramatically, the bar coding and some other ways of doing that but most of the systems in place in most departments doesn't allow much precision in taking a whole group of evidence, moving it forward with the court saying can we get rid of this now. Yes, sir?

COMMISSIONER SCHECK: I would make this suggestion to you. I just instinctively feel that the notion that there's 150,000 untyped rape kits extant is conservative, is extraordinarily conservative if your assumption is correct that people aren't throwing away the unsolved rape kits.

I mean, shouldn't there be a way to just go to NIJ or something and get statistics on the number of reported rapes versus the number of cleared rapes for even five years or ten years? I've got to think that that number of reported but unsolved rapes is much in excess of 150,000. I can't believe it isn't.

DR. FRASER: Intuitively I think you're right. What we're going on is what they told us in terms of what they had backlogged and then trying to extrapolate that.

COMMISSIONER SCHECK: But there's, but they're with the tracking, I mean, I have to tell you, I spend a lot of time rummaging around evidence lockers in courts in every jurisdiction and I don't think those guesstimates are, as you say, based on much hard data.

COMMISSIONER SMITH: Is it your experience working with the departments that rape kits are pretty uniformly done in a sexual assault case?

DR. SCARBOROUGH: I would say for the small organizations, I mean, it's reflected in the fact they don't have any policy and they rely on the state crime labs for guidance in these matters. But there's a lot of variety with respect to how rape kits are processed and submitted, et cetera.

DR. FRASER: Probably a little bit more consistency in large departments that have the policies.

COMMISSIONER SMITH: Consistency that they do it?

DR. FRASER: That they do it in larger, larger agencies.

COMMISSIONER SCHECK: Is there a distinction between rape kits being performed at hospitals versus rape kits being acknowledged as received in evidence in agencies?

DR. FRASER: We think so because when we were trying to get counts on the number, sometimes they said well, we don't have those, those are kept at the hospital.

COMMISSIONER SCHECK: Yes. I would really commend that to your attention because what we've found at the Innocence Project is that there are many cases, one jurisdiction for example is Delaware, where when we track it back we can't find it in the court, we can't find it in the crime lab, we can't find it in the police property clerk's office, when we go back and we can at least get slides from the hospital, which are perfectly good for doing the testing.

So if we're thinking about how to instruct a policy for some initiative, which I would strongly favor, of going back and typing over some period of time unsolved rape kits, you know, we should think about the hospitals because I've just got a feeling that there's, in terms of the estimates they're giving you, that that's big undercount here.

DR. FRASER: There may very well be and I think that what you're saying is very important because of the lack of standardization even from department to department. There's just no one way to do that. That's why the toughest question we asked was how many do you have backlogged.

And it was difficult for us even in the phone interviews where we can probe for them to go back and count, those that we used it from a factor to try to get more, those are tough numbers.

COMMISSIONER SANDERS: You still have to overcome the problem, when you say reported rapes as well, I mean, how it's reported and how it shakes out is a major difference sometimes.

DR. FRASER: That's right.

COMMISSIONER SANDERS: You might have a better job, well, no, that wouldn't do you any good with convictions but I mean, unknown suspects, but, I mean, it's, that thing would have to be dissected in several different ways, I would think, so that you would get your mind around exactly what you're talking about. Because a lot of rape kits aren't going to be done just because of what the investigators find or the responding officers.

I mean, some of them are reported a week later, two weeks later. I mean, there's a lot of things that go into consideration and so I don't know how you would match the number reported with the number of rape kits.

COMMISSIONER SCHECK: Didn't Bob Ganston and Henry Lee do a big study of sexual assault collection kits for NIJ about two, three years ago that may have some of these statistics? I remember --

DIRECTOR ASPLEN: That was before my time at NIJ. It's entirely possible. We could at least have --

COMMISSIONER SCHECK: I have feeling that there are some good numbers out there.

COMMISSIONER SMITH: We should look, we should look, we should ask for what numbers NIJ has and to dice them also.

DR. FRASER: One other set of numbers, too, that's important to look at is not just the uniform crime reports but the national victimization survey --

COMMISSIONER SMITH: Right.

DR. FRASER: Because that again gives us some idea of, we weren't able to get those numbers but it's, I was a little surprised that it was as low as it was. But again that's what they told us, the department's telling us, that sort of, and it was interesting because obviously we had some that thought they had an exact number because we got not all rounded off numbers.

Some gave us rounded off numbers obviously, others gave us exact counts, 7 or 58 and you hope that if they're giving you those that they have some knowledge of exactly what's there.

COMMISSIONER SCHECK: Because I can tell you, we've used this number before here and it's in the record but in New York City when we stopped the destruction after five years, we counted out 12,000. And that's, that's, in other words, a snapshot of five years of unsolved sexual assaults in the City of New York of 12,000. It's just five years.

COMMISSIONER SMITH: And do you know how many rape kits there were?

COMMISSIONER SCHECK: I'm telling you, it's twelve thousand.

COMMISSIONER SMITH: Twelve thousand rape kits?

COMMISSIONER SCHECK: Yeah. In a safer, you know, I asked him, he stopped it and we outsourced them. So we'll see what happens but that's 12,000.

DR. FRASER: But New York City accounts probably for 10 percent of the rapes in the country, would be my guess. I'm picking a number but it's probably a very large number of the total rapes in the country.

COMMISSIONER SCHECK: I don't know.

DR. FRASER: We can find that out.

COMMISSIONER SANDERS: Another reason for me not to go to New York.

DIRECTOR ASPLEN: Just to kind of look back as to how we got to this point, you may remember that in our meeting in Albuquerque we kind of decided that we would just look at rape kits and rape cases. Our original intent was to kind of take a broader view at what quote-unquote the potential DNA evidence was not being processed.

So this was the easy one. You know, we did it this way with the thought towards this was a relatively finite proposition that would be easier for us to kind of get our arms around. And, obviously it, even this issue is incredibly difficult.

COMMISSIONER SMITH: As we were.

DIRECTOR ASPLEN: Right, right. I have another question. Did you get an idea of the extent to which agencies are aware of CODIS in general and the use of the database to solve crimes in general?

DR. SCARBOROUGH: We only asked them, really asked them in a pilot test about CODIS and --

PARTICIPANT: I did not experience that at all.

DR. SCARBOROUGH: No, there was not any awareness. There were fifteen pilot tests.

DIRECTOR ASPLEN: There was not any awareness of the database in general.

DR. SCARBOROUGH: No.

DR. FRASER: Well, that's in the small agencies.

DIRECTOR ASPLEN: Right.

DR. FRASER: There's more awareness in the larger agencies. It's not something that they automatically know but there's more awareness that there is a national database on the part of many of the larger agencies.

COMMISSIONER HILLARD: But doesn't the large agencies or the small, the medium size agencies have any type of training for the specific, the detectives, the crime scene investigators?

DR. FRASER: I'll ask my colleague back there. Terry, do you remember, were there some that cited specific trainings?

MR. DWARNIK: Good afternoon. My name is Terry Dwarnik. I'm a research fellow with the police executive research department, on loan from Calgary, Alberta, Canada. What we found was that many of the larger organizations have formal trainings in place for the detectives but in general the formal training was for the crime scene technicians in terms of collection.

DR. FRASER: So it tended to be more for the crime scene specialist, not for detectives generally, Terry, is that right?

MR. DWARNIK: That's correct, yeah. Most of the formal training in the telephone interviews that I conducted was given to the crime scene technicians themselves.

COMMISSIONER SANDERS: That's what caused us to does to do this thing, is because we assumed that, right?

DR. FRASER: And I think what we found out confirmed the need for that.

CHIEF JUSTICE ABRAHAMSON: Good. Any other questions or comments? Do you have -- I see none. Do you have any other things you want to tell us?

DR. FRASER: No, ma'am, other than we found it a very interesting piece of research to do.

CHIEF JUSTICE ABRAHAMSON: Good. Thank you.

DR. FRASER: And difficult.

CHIEF JUSTICE ABRAHAMSON: Thank you very much.

DIRECTOR ASPLEN: Thanks for the information.

COMMISSIONER SANDERS: They're having a sidebar over there, Your Honor.

CHIEF JUSTICE ABRAHAMSON: Right. I know.

COMMISSIONER SANDERS: Without us.

CHIEF JUSTICE ABRAHAMSON: We'll question them closely if we can get their attention. Where's Christopher? We're scheduled for a break soon. Take it now?

DIRECTOR ASPLEN: Yeah, why don't we take it now.

CHIEF JUSTICE ABRAHAMSON: Let's take a break now. Can we give them more than 15?

DIRECTOR ASPLEN: Sure.

CHIEF JUSTICE ABRAHAMSON: All right. More than 15. Why don't you stay close, 25 to 25, okay? Good.

(There was a break in the proceedings.)

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