18 MR. SMITH: Most of what we are going to say today
19 has been previewed to you in writing as well as orally, but
20 we welcome the opportunity to try to lay it all out,
21 including some of the variations in viewpoint that remain
22 with in the working group.
23 Let me say a couple of words about our role as we
24 saw it. I think we saw our role less than perhaps some
25 other working groups as making recommendations to this body
1 or recommendations for this body to recommend to another.
2 Rather, we took on issues by referral from the Commission or
3 from other working groups. Some of the issues we took up
4 were self-initiated.
5 Our method basically was to nominate issues,
6 dispose of some without much discussion, but then to discuss
7 others with some intensity.
8 Then, of course, to make demands on David Kaye to
9 go study and write about them for us and ultimately to
10 present to you.
11 Finally, Ed Imwinkelried took mercy on David and
12 joined him in the effort of writing this, from which we
13 benefitted enormously.
14 As a result of that, the documents that we are
15 submitting are the two legal memoranda from David and from
16 David and Ed. We are submitting them not as working group
17 products, because they are clearly authored by these
18 gentlemen, but we are recommending them to you as
19 comprehensive and thorough analyses of the legal issues we
20 took up, and we think they are relevant to this Commission
21 and others to discuss. So it's a kind of map from us to you
22 and perhaps from you to others.
23 Not every assertion in the documents therefore
24 represents the working group's view of the subject matter,
25 and I think we are going to discuss a little bit some of the
1 differences, and you'll have different views too.
2 The purpose of raising debate here about the
3 issues and I think ultimately suggesting to this Commission
4 that it facilitate, catalyze a process perhaps through a
5 national symposium later this year or next for wider
6 discussion of some of these issues is really the ultimate
7 product of our work.
8 Although you will remember that the initial
9 discussions of our work focused on the question of the
10 admissibility of arrestee sampling and arrestee databasing,
11 and we discussed that at some length in this body because of
12 the submissions to the Commission by others because of the
13 Attorney General's specific request to us, you will now find
14 that separately discussed in a version of the memorandum
15 you've earlier seen but also embedded now within the larger
16 context of the memorandum that Ed and David have authored on
17 the selected legal issues.
18 The cover document summarizes to some extent the
19 materials in the legal memoranda but also raises issues on
20 which we spent quite a bit of time in the working group that
21 didn't seem to us to be legal issues in the sort of
22 technical sense. They involve legal matters, but they are
23 issues of politics and philosophy which deserve discussion,
24 in our view, here and in a larger discussion nationally.
25 Why? Well, because the intersection of law and
1 privacy issues and public safety issues strikes us as not a
2 matter for a working group on legal issues to try and
3 resolve. Nor do we really recommend to the Commission that
4 it attempt to resolve them in the sense of making formal
5 recommendations to other bodies of government.
6 Let me now turn it over to David and, under his
7 orchestration, to the others for an oral presentation of the
8 material submitted to you today.
9 MR. KAYE: As Michael indicated, the major report that we
14 have developed has been the result of efforts on my part
15 and on the part of Ed Imwinkelried. In addition, it reflects
19 contributions from the other members of the working group.
21 The ideas were generated as a result of our discussion and drafts were the subject of further discussion. Drafts of the reports, or parts of them, were circulated.
1 to other scholars in the area.
3 In some instances the conclusions are controversial, and
5 we have placed words like "probably" in front of them where
6 things are debatable.
7 We have focused on issues as to which it might be helpful
for the Commission to have a sense of the legal framework, the policy
choices that are available, and the kinds of laws can be passed consistently
with the Constitution. Our emphasis has been on the U.S. Constitution and
its limitations in relation to DNA evidence.
8 The report begins with an analysis of very concrete issues that arise
every day– Fourth Amendment issues, securing DNA for analysis, and
using DNA in prosecutions. Then it considers law enforcement databases.
9 Our discussions of many of these issues led us seriously to contemplate a more radical alternative, I am going to defer some of that to our chair, who has very ably articulated many of the reasons one might want to think about a much broader approach than that
4 which is currently being pursued.
6 We are going to begin by summarizing some of the
7 salient points. At the outset, Ed Imwinkelried will run through some
8 features on the first topic that I mentioned, DNA analysis
9 in criminal investigations. As you can see, there are several topics that
11 arise. One which came up in discussion yesterday has to do
12 with inferring physical or even racial groupings from crime
13 scene samples. One might ask, is that permissible
14 consistently with the equal protection clause of the
15 Fourteenth Amendment? Again, the focus is on the outer
18 boundaries of what can be done as opposed to what should
19 necessarily be done.
20 Issues also arise about securing samples from suspects or
21 other individuals and securing samples or records from
22 custodians, such as hospitals, laboratories or others who
23 might have DNA samples. Years ago, Dr. Reilly called the attention of the biomedical
25 community to
what he presciently described years ago as inchoate DNA database.
3 First, Ed's remarks.
4 MR. IMWINKELRIED: David and I are going to be
5 working from this report. I will try to make references to
6 the pages so we will be on the same page.
7 As David indicated, I'm going to be focusing on
8 the investigative stage. As his overhead suggests, there
9 are three aspects that we are going to be talking about:
10 What happens during the investigative phase? You
11 acquire crime scene samples; you obtain suspect samples.
12 Then you draw inferences both from an analysis of the
13 individual samples and from an analysis of the individual
14 samples and from their comparison. What we are going to try
15 to do is identify the legal issues that emerge from those
16 three steps.
17 With respect to each issue, I'm going to try to do
18 three things: identify the issue itself, furnish whatever
19 answer we can identify, and try to in an intellectually
20 honest fashion specify our level of confidence, our degree
21 of certitude in that conclusion.
22 Let's start by talking about the acquisition of
23 the crime scene sample, and specifically the question of the
24 investigative use of inferences as to racial or ethnic group
25 yielded by the analysis.
1 Question: If that inference is yielded by the
2 analysis, does the Constitution restrict the use of that
3 inference as an investigative lead?
4 On the one hand, it's clear that in constitutional
5 jurisprudence race is a suspect classification. On the
6 other hand, we believe that this is not a case like Yick Wo,
7 the case that is mentioned on page 21 of the report, in
8 which racial information is being used to disadvantage a
9 minority group. We think that the Yick Wo line of authority
10 is distinguishable for two reasons.
11 First, if the police pursue this policy with
12 respect to all racial or ethnic groups, they are being
13 treated in the same fashion; no group is being specially
14 burdened or disadvantaged.
15 Secondly, the use of the information is different.
16 It's not a discriminatory use. Quite to the contrary, it's
17 a legitimate investigative use.
18 The analogy that we suggest in text is this. What
19 if we had a government physician on the staff of a VA
20 hospital. The physician has an Afro-American patient, and
21 blood analysis indicates that there is a genetic
22 predisposition towards a particular illness, an illness that
23 could be treated preventively. We think it would be
24 malpractice to disregard that diagnostic lead from the DNA
25 information, and we think that similarly it is legitimate to
1 use this information as an investigative lead.
2 So we are relatively confident that if we are
3 talking about the uniform use of these investigative leads,
4 the Constitution does not forbid that practice.
5 If we turn from the crime scene sample to the
6 suspect sample, the initial question becomes, how do we
7 acquire the sample from the defendant?
8 We would like to suggest to you that the answer
9 turns on whether you acquire the sample directly from the
10 suspect or whether you indirectly obtain the sample by going
11 to a private entity or private person who is already in
12 possession of such a sample.
13 Let's talk initially about directly acquiring
14 samples from suspects. That can be done either via consent
15 or through compulsion. Let's focus initially on the
16 question of obtaining legally effective consent to
17 furnishing of a DNA sample.
18 Issue: What is the legal standard to determine
19 the efficacy of that consent?
20 On the one hand, it does seem to be a relatively
21 lax standard. We cited for you on page 16 of the report
22 United States Supreme Court decision in Schneckloth v.
23 Bustamonte. In that case the Supreme Court squarely holds
24 that when the issue is Fourth Amendment consent as opposed
25 to Fifth Amendment consent under Miranda, the standard is
1 not intentional relinquishment of a known right, but rather
2 a general voluntariness standard to be determined on the
3 basis of the totality of the circumstances.
4 On the one hand, that is a lax standard, but on
5 page 17 we have tried to suggest that even that seemingly
6 lax standard has some teeth, teeth illustrated by Bumper v.
7 North Carolina on page 17.
8 In Bumper you have a situation where police go to
9 a resident and tell the resident that they have a warrant to
10 search. In fact, they don't. The resident is misled into
11 thinking that they have the warrant; therefore allows them
12 to enter the residence.
13 The Supreme Court says this is not genuine, bona
14 fide consent; this is involuntary; this is coerced. In
15 situations in which the person is led to believe that there
16 is a right to search, misled into believing that they don't
17 have the right to refuse, even under the Schneckloth
18 standard you have an involuntary search and ineffective
19 consent.
20 Turning from consent to the issue of compulsion,
21 it's clear the police can't compel the provision of a DNA
22 sample without some Fourth Amendment justification. The rub
23 is this. What is the standard? And specifically, can you
24 compel provision of these samples on something less than a
25 full-fledged showing of probable cause?
1 Once again we are trying to be intellectually
2 honest and trying to be very explicit. The Supreme Court
3 has never authoritatively resolved that question, but
4 nevertheless we think there is a relatively solid consensus,
5 a consensus indicating that the answer to the question is
6 yes.
7 On page 4 we have cited to you the famous dictum
8 in Davis v. Mississippi, the case written by Justice
9 Brennan. It's a case involving fingerprints. In dictum in
10 the case Justice Brennan says this: Fingerprint evidence is
11 so reliable and the procedures are so minimally intrusive
12 that perhaps you could compel the provision of fingerprints
13 on something less than probable cause if you used carefully
14 circumscribed procedures.
15 Although the Supreme Court has never squarely
16 adopted that dictum, later, as we indicate on page 5, in
17 Hayes v. Florida the Supreme Court does approvingly cite to
18 the dictum in the Davis case.
19 Throughout the country legislatures and courts
20 have seized upon that dictum. You have statutes and court
21 rules in jurisdictions such as Alaska and Oklahoma, even
22 judicial decisions, and the common denominator is some
23 variation of the theme of founded or reasonable suspicion.
24 So on the one hand, we have to say there is no
25 definitive answer, but we think it is highly probable,
1 reasonably clear that if you interpose a magistrate or judge
2 and you have some particularized showing of the nature of
3 reasonable or founded suspicion, and you use carefully
4 circumscribed procedures, that sort of compulsory
5 identification procedure can probably pass constitutional
6 muster.
7 I have been talking about situations in which you
8 obtain the sample directly from the suspect. What about the
9 situation in which you indirectly obtain the sample? For
10 example, going to a hospital or an academic institution
11 which has already collected the sample.
12 At the outset, I think it's important to
13 distinguish between two situations. We are not talking
14 about the case in which the police go to the private
15 institution and instigate the collection of the sample.
16 They know, for example, that the suspect is at the hospital.
17 They go to the hospital personnel and request that they
18 obtain a sample for the police. That converts the private
19 institution into the de facto agent of the government. You
20 have state action, and the Fourth Amendment would apply.
21 What we are talking about is the other situation.
22 They have already collected the sample for their own
23 reasons, and how the question is, can they surrender it to
24 the police?
25 When I say surrender, I mean two things. Either
1 cooperatively, voluntarily turn the sample over, or do so on
2 the basis of a response to a subpoena. Not a warrant based
3 on probable cause or founded suspicion, but rather a
4 subpoena on the basis of a showing that the object of the
5 subpoena is logically relevant to the subject matter of an
6 ongoing legitimate criminal investigation.
7 That is the issue that turns on the question of
8 the applicability of the Miller case which is discussed on
9 page 8. When we were talking about compulsory
10 identification procedures, I said there was some
11 uncertainty. In those contexts it is much more precise to
12 say there is a flat out split of authority; there is a
13 division of judicial sentiment. The division of judicial
14 sentiment revolves around the extension of Miller to the
15 sorts of cases we are talking about now.
16 Miller is a situation in which the suspect is
17 charged with conducting an illegal still business. The
18 police obtain subpoenas to the banks, and they request that
19 the banks surrender two things. Number one, their own
20 internally generated records of his banking activities, and
21 moreover, the checks and deposit slips which he gave to the
22 banking institution.
23 Miller argues on appeal that even though he gave
24 that information to the banks, they could not surrender it
25 to the police without obtaining his consent. Essentially,
1 he says he retained a discrete, reasonable expectation of
2 privacy in those records, in the checks, in the deposit
3 slips.
4 In an opinion written by Justice Powell the Court
5 rejects all arguments. The Court says he voluntarily
6 conveyed the information to the banking institutions. He
7 thereby assumed the risk that they would convey the
8 information to the police, and he says that this rationale
9 applies both to the internally generated documents and to
10 the checks and deposit slips which the defendant conveyed to
11 the bank.
12 The question becomes, can you extend Miller to
13 either records of DNA samples or DNA samples themselves?
14 As we have indicated on page 10, there is a split
15 of authority over that issue, and a minority of courts
16 refuse to extend Miller. A minority of courts say Miller is
17 intended for the situation when you are dealing with
18 something like commercial or financial records.
19 The argument runs, and it certainly is a decent,
20 strong argument, that medical records are different; there
21 is a much more intense privacy interest in that context.
22 In fact, on the bottom of page 10, running to page
23 11, we cited a recent CNN poll in which 87 percent of the
24 public indicated a very strong concern about the privacy of
25 their medical records. Notwithstanding the strong privacy
1 interest in this type of data, the majority of courts have
2 said that Miller governs in the fact situations involved in
3 DNA. Our conclusion is that the majority view at least is
4 defensible.
5 What can be said in favor of the majority view?
6 The majority of courts concede that there is a more intense
7 privacy interest here, but they point to two things.
8 First, although four-fifths of the states have
9 adopted a general medical privilege, the majority of them do
10 not apply the privilege in criminal cases.
11 Secondly, many jurisdictions have gone beyond
12 negative limitations on the general medical privilege; they
13 have gone to the extent of affirmatively prescribing
14 reporting requirements, reporting requirements for both
15 violent injuries and child abuse. The majority of
16 jurisdictions have said these are indications that society
17 does not recognize a legally protected, constitutionally
18 protected expectation of privacy, at least on the criminal
19 side.
20 Our conclusion is that the majority view, as we
21 read the cases, is that the defendant does not retain a
22 constitutionally protected expectation of privacy either in
23 the records or in the samples, and for that reason, under
24 the majority view, those institutions can surrender the
25 records and the samples to the police without running afoul
1 of the Fourth Amendment.
2 As I said at the outset, we want to be as
3 intellectually honest and as candid as we can about our
4 degree of confidence in these various conclusions. So in
5 summing up I would like to group them into three categories.
6 The first category is a category in which we are
7 relatively confident in our conclusions. We think we can be
8 relatively confident that the Constitution does not
9 generally forbid the use of racial information as an
10 investigative lead. We can be relatively confident that
11 Schneckloth is the governing precedent when the issue is the
12 legal effectiveness of the defendant's consent. We also
13 think we are relatively confident that compulsion to submit
14 a DNA sample is an intrusion for Fourth Amendment purposes.
15 The second category is a category in which we
16 think our conclusions are highly probable. We think it is
17 highly probable that when push comes to shove the court will
18 say you can sustain compulsion when we are talking about
19 fingerprints or DNA on a standard less than probable cause,
20 some carefully circumscribed procedure based on a variation
21 of the theme of either founded or reasonable suspicion.
22 Finally, although we have less confidence, less
23 degree of certitude with respect to this, we think that
24 Miller under the majority view does govern in the clear
25 majority of jurisdictions, and if Miller does govern, then
1 that private institution which has already legitimately
2 obtained a sample of the DNA can surrender that DNA
3 cooperatively or in response to a subpoena without violating
4 any retained expectation of privacy that the defendant has
5 in those samples or in those records.
6 Based on that quick summary of the highlights of
7 the investigative part of the report, I would be more than
8 happy to respond to any questions anyone has.
9 CHIEF JUSTICE ABRAHAMSON: Barry.
10 MR. SCHECK: I must say that in terms of your
11 analytical framework, what really disturbs me is starting on
12 page 3. You footnote Harold Krent's fine article Of Diaries
13 and Data Banks: Use Restrictions Under the Fourth
14 Amendment.
15 I must say that I do agree with him that when you
16 are analyzing these kinds of cases, on the one hand, when
17 you are trying to judge the necessary predicate, phantom
18 suspicion, probable cause, whatever it is, you also have to
19 look at the level of intrusion. When you are looking at
20 access to the genome, much depends upon the restrictions
21 that are placed upon its use. Unrestricted access to it is
22 going to require a heavier predicate and be seen as a
23 greater intrusion. I don't think you give that argument
24 fair enough consideration by just saying, "but see."
25 I think -- tell me if I'm right -- that when you
1 are analyzing all of these issues, when you are talking
2 about acquiring samples, that it has been your underlying
3 assumption that the only use that is going to be made of the
4 DNA sample that you are either subpoenaing from a hospital
5 or taking directly from a suspect or taking indirectly is
6 that it is going to be reduced to its digitalized form and
7 used only for forensic identification purposes like
8 fingerprints. Is that the underlying assumption of this
9 analysis? I'm only asking if that is what the underlying
10 assumption was when you were writing this.
11 MR. HARMON: Clearly in a criminal prosecution, if
12 you obtain something, you can use it for whatever use you
13 need to use it to sustain a conviction or further
14 investigation. If one of these samples were obtained in the
15 manner prescribed by Ed, then the law enforcement could do
16 whatever was necessary to further an investigation, and if
17 that meant other than digitalizing, you know that is what we
18 could do on a sample that we obtained pursuant to a search
19 warrant or consent. I don't think there is anything that
20 limits that.
21 MR. SCHECK: That's precisely my point. Thank you
22 for clarifying it. What I am really trying to ascertain is,
23 is it the implicit assumption here that you are only using
24 this for the limited purposes I describe, or as Rock is
25 saying, once you get the sample, you can do anything you
1 want with it?
2 MR. IMWINKELRIED: It seems to me that the answer
3 to your question depends upon the constitutional right that
4 you are talking about. I think Rock is probably right. Our
5 assumption in the Fourth Amendment analysis is
6 probably the controlling rule, at least at this point. We
7 have indicated that there is a contrary argument to be made,
8 but it hasn't been adopted yet.
9 On the other hand, I think that the argument you
10 are making now does sound under Whelan v. Rose, which David
11 will talk about later -- in that challenge to that statutory
12 scheme the court did talk about the safeguards under the
13 statutory scheme to preclude unauthorized use of that
14 sensitive information.
15 So if you are talking about the right of privacy
16 safeguarded by due process, you do have some authority that
17 that is an appropriate consideration, but apart from this
18 argument, an argument that is obviously legitimate, I don't
19 see any Fourth Amendment authority to impose that
20 restriction.
21 MR. SCHECK: The authority is right in the quote
22 you put on page 4. In other words, when Justice Brennan in
23 Davis is talking about why some level of compulsion is going
24 to be justified in taking fingerprints, it is precisely
25 because it doesn't probe into the individual's private life,
1 thoughts, et cetera, et cetera, et cetera.
2 MR. IMWINKELRIED: Again, that is dictum that has
3 never been squarely adopted by the court.
4 MR. SCHECK: I understand that.
5 MR. IMWINKELRIED: We are trying to differentiate
6 between square holdings and dictum.
7 MR. SCHECK: There are funny kinds of square
8 holdings. It's not exactly like there is a helluva lot of
9 case law on issuing subpoenas not just for medical records,
10 but for samples from data banks. I think it is frankly
11 self-evident that these other kinds of considerations are
12 clearly raised by the Davis dicta, if you want to call it
13 that, or by Krent's arguments or others.
14 Let's forget about where these cases are
15 ultimately going to go. We'll find out, right? I just
16 think that in presenting this, if your assumption -- and I'm
17 glad that Rock made it clear -- if your assumption is even
18 under the Fourth Amendment that you have a right to take
19 these DNA samples and that the use of them is going to be
20 for more than simply using it like a fingerprint, then I
21 think you have to exfoliate that implication much more
22 clearly and indicate that the greater the potential level of
23 intrusion in terms of typing it, if there are going to be no
24 restrictions on the use you can make of that blood sample,
25 then you are going to have a much heavier predicate required
1 before you can take it by compulsion directly or indirectly.
2 DR. REILLY: Barry, what if you could fit into
3 fingerprinting, use a different assumption from Rock's?
4 MR. SCHECK: I have to say my reaction to the
5 entire report and all the DNA data bank cases, which I think
6 are rightly cited for the wrong reasons, is that I think
7 that we should treat these samples just like a fingerprint,
8 and the rationale should be narrowly limited in that
9 fashion. I thought that from the beginning.
10 MR. KAYE: We plan to address that as we
11 discuss collection for database purposes as opposed to more
12 traditional collection of material based on probable cause,
13 or in some situations something less.
14 I agree with your suggestion that the fingerprint analogy must apply to reduce the level of proof on the government's part if those statutes that allow blood samples to
18 be collected for criminal investigations are to be sustained as constitutional
based on the analogy to taking fingerprints.
20 Our task in writing this report was to try to describe the law as it
22 exists. While I am sympathetic to Professor Krent’s position that in
23 deciding what initial steps can be taken one ought to
24 consider all conceivable uses that would be made, I think
25 the standard approach that now exists under
1 the Fourth Amendment is to say that if there is probable
2 cause to obtain an item, then there may be other uses to
3 which it can be put unless those are independently invasive
4 of privacy in a way that, as Professor Imwinkelried was indicating, causes a due
5 process concern.
6 It's important to distinguish between a
7 description of laws that exist and an aspiration as to what
8 the law might be. I think it's our obligation at least to describe the law. The citation to Professor Krent is intended to indicate that scholars may have other views as
12 to how the courts should approach this. I think they become more
13 important in the database area than here.
15 MR. IMWINKELRIED: One of the things we are trying
16 to do is to force issues for public policy resolution. If I
17 am looking at the state of the case law, I wouldn't advise
18 any defense counsel to be confident that he or she could
19 protect his client's interest by making either that argument
20 based on the Fourth Amendment or under substantive due
21 process.
22 I feel much more comfortable going to a
23 legislative forum and saying, you need to address this
24 because we need privacy protection at this point, and
25 individual citizens can't be confident that protection is
1 going to be forthcoming from the courts.
2 Even though these are tenable, decent arguments, I
3 quite frankly don't have a great deal of confidence that
4 they are going to carry the day and become anything
5 approaching majority views in American jurisprudence. That
6 is what we are trying to say to force issues for public
7 policy resolution.
8 MR. THOMA: One problem with David's statement --
9 I guess I am the minority view of our working group -- your
10 whole point with regard to this is lack of probable cause.
11 So when you bring it back into the context of once you have
12 probable cause, your use is more -- Rock's view --
13 unlimited. I think Barry's point is by going to the
14 article. You are avoiding the probable cause hurdle, so to
15 speak, and still getting the same use of the evidence as if
16 you had all this probable cause before the extraction.
17 I made quite a bit of notes. I apologize. We
18 have discussed this privately, but I didn't get back to you
19 on some of these points. This is extremely important. DNA
20 isn't like fingerprinting.
21 I agree with Rock's position that the position of
22 all the prosecutors would be once you've got it, you do
23 anything you want with it. I think the analysis has to go
24 back to that. If you don't have anything beyond what was
25 spoken in Davis by the United States Supreme Court, that is
1 the last word of the United States Supreme Court on this
2 issue, and you have to take that analysis into the context.
3 MR. KAYE: I suspect we lawyers could continue to
4 debate this. Let me throw in one last observation to make
5 this concrete. Some years ago there was a notorious case in
7 upstate New York. It involved a woman who was in a coma and
8 became pregnant as a result of a member of the staff of a
9 hospital or nursing home -- I don't recall which -- was
10 raping her while she was in a coma. She delivered a child
11 while in a coma. I could imagine an investigator saying, “we ought to be
15 able to collect a blood sample from all male hospital employees and do a paternity test.
18 Is that purely identifying, like a fingerprint? There could
19 be markers in that paternity test that would involve expressed traits that raise more privacy concerns than fingerprints. The question is whether that use of the evidence, with the attendant invasion of privacy is justified by the investigative need -- even though
1 there is not probable cause to think that every male employee in the hospital committed this offense.
3 MR. SCHECK: That's not the only case like that.
4 There have been quite a few. The sensible way to proceed
5 consistent with the principles I am articulating that you
6 would do a paternity test first of all and isolate what the
7 male DNA profile was, again treating it like a fingerprint,
8 and then the law enforcement authorities would try to find
9 out who had access.
10 Then I would say that the proper procedure would
11 be to first see if you could get informed consent from the
12 individuals to get their samples. If you couldn't, then you
13 could go to a grand jury or to a judge based on the proof of
14 access and say, we want to make a comparison for the limited
15 purpose of seeing whether or not you match this fingerprint.
16 Then it would be part of the court order that no other uses
17 would be possible.
18 All I'm saying is I'm intrigued to hear that you
19 wrote this and then said, gee, there is a smattering of
20 cases here that seem to deal with these issues in terms of
21 medical records, and if we apply this to DNA, this is pretty
22 scary and most of the American people wouldn't like it and
23 all the rest of it.
24 I guess what I am bothered by is I think in this
25 draft it would be useful to articulate these other kinds of
1 arguments just a little bit more fully, because I don't
2 think they are fairly or persuasively enough stated here, to
3 be frank. I don't think you do it by just saying "but see."
4 If you want, I would contribute something to that. Then say
5 these are where the issues are going to be.
6 Reading this, it is one thing to say to a defense
7 lawyer -- of course defense lawyers always should think like
8 this -- watch out. The state is going to do something to
9 your client, and don't put money in a bank; don't give your
10 records to an accountant, or whatever.
11 I think it is going to be read, frankly, quite
12 another way, and that is prosecutors and others who never
13 thought for a second, who never even thought, gee, what
14 about a subpoena to all the blood stick cards around. Or
15 what about a subpoena to all these data banks. Hey, this
16 looks pretty good.
17 I think that is how this would be read unless we
18 indicate a bit more persuasively what the arguments are on
19 the other side and what the courts could do. My own view is
20 that we are only beginning to reach this issue, and the
21 courts are definitely going to look at this just as Brennan
22 did. They are going to say this is potentially different.
23 You just can have this for any purpose. We're going to look
24 at the level of predicate.
25 The standard is going to be raised in accordance
1 with what your potential use is, and to the extent that law
2 enforcement institutions assure people with very ironclad
3 guarantees it's only as a fingerprint, then you are going to
4 get greater access, and to the extent that it is more
5 unlimited, I think the courts will go the other way.
6 MR. IMWINKELRIED: We can certainly flesh out in
7 more detail the arguments for the minority view. We have
8 tried to indicate that there is a respectfully contrary line
9 of authority. Again, we don't want to lose sight of the
10 point that our intent is both to pressure the Commission and
11 to pressure a public debate on the question of what should
12 legislatures do to assure protection while the courts
13 struggle with these issues.
14 We think that certainly should not be taken off
15 the table simply because there is this minority line of
16 authority, even if it can be more persuasive and articulate.
17 That is one of the problems with the minority view. We
18 footnote the Dolan case or the Weber case from New York,
19 cases that come to contrary conclusions, while ignoring
20 cases that have come to the minority results that basically
21 disregarded the giant gorilla on the other side.
22 CHIEF JUSTICE ABRAHAMSON: Phil.
23 DR. REILLY: Forgive me if what I am about say is
24 already in a footnote that I've overlooked, but there may be
25 a line of inquiry that will shed some light on this debate,
1 although not from judicial sources.
2 Over the last three years or so a provision of the
3 Public Health Service Act providing for certificates of
4 confidentiality, making genetic databases unreachable even
5 by subpoena, has been used on several occasions, broadening
6 the original intent of that provision of the federal law
7 which was aimed at records of people with a history of
8 alcohol and drug abuse, to protect them. So within at least
9 that administrative application or interpretation of a
10 federal law we might see some more recent inquiry related to
11 genetic databases themselves and might be of some use to us.
12 MR. KAYE: I'm in agreement with almost
13 everything that has been said here. The statute may be worth noting in light of our suggestion that some of these matters have to be dealt with not by constitutional
17 construction, but by statute. Isn’t the statute limited to research
18 databases?
19 DR. REILLY: Yes, it's limited to research
20 databases. I just say defined by a federal grant as being
21 analyzed under research funding.
22 MR. KAYE: Don't the researchers have to seek a
23 certificate from HHS?
24 DR. REILLY: Yes, that's correct. But it goes
25 directly to Ed's point about the crucible of public policy
1 and how here a statute originally intended for a very narrow
2 purpose has been expanded to address very much the genetic
3 data bank issue, and it seems -- I am on very thin ice here.
4 I'm not a Fourth Amendment scholar by any means -- to be the
5 most recent, if you will, articulation in a post-Miller
6 world about how they look at these things, at least in the
7 research databases.
8 It may be hard to actually get text on this other
9 than the form of letters accompanying the certificates that
10 have been issued, but there have been a number of them.
11 MR. SCHECK: Is it part of your analysis, for
12 example, in deciding what one's reasonable expectations of
13 privacy are in certain data -- that doctrine has been
14 criticized for this very reason. The point is, what is
15 reasonable to the average person? What expectations did
16 people have when they gave up their tissues or their
17 biological samples as opposed to putting their money in a
18 bank and engaging in credit transactions? In terms of going
19 on the Internet, your expectation of privacy there is fair
20 warning that anyone can hack you or it is going to be resold
21 to another credit agency.
22 Where they take your blood as a kid and they put
23 it on a card, I think the people's expectations of privacy
24 in that are much greater.
25 You are absolutely right. Miller is, technically
1 speaking, out there as a precedent to be cited to try to get
2 these things, but the argument that this kind of tissue and
3 data and information is raising much more intense privacy
4 interests seems to me self-evident.
5 MR. THOMA: That is why Miller is avoided
6 sometimes, because it is not necessarily relevant if we are
7 talking about more private concerns.
8 MR. IMWINKELRIED: I think you go back to Barry's
9 question. What is the sort of indication of social
10 expectations that is reliable enough, fixed enough,
11 permanent enough to rely on as a factor for decision making.
12 I do have to say if the Texas courts say, look, you've got
13 all of these states saying you've got protection for medical
14 information broadly defined on the civil side, there is
15 pretty solid consensus that there is no medical privilege on
16 the criminal side. Moreover, we have got these affirmative
17 reporting requirements which intrude on medical
18 confidentiality when there is a sufficiently important
19 interest. That is, I think, quite frankly, a firmer
20 indication of social expectations of privacy than even the
21 CNN polls.
22 MR. SCHECK: There is a case that you don't cite
23 here, and that is Redmond. In other words, while the
24 medical privilege is a weak one in the criminal context,
25 isn't it interesting how the Supreme Court went on the
1 therapist/patient privilege?
2 MR. IMWINKELRIED: That's easily distinguishable.
3 Every state has such a privilege.
4 MR. KAYE: Madam Chair, I was going to ask if I
5 could have the chair's permission to move on to the
6 next topic. I fear we could spent all day on this one.
7 CHIEF JUSTICE ABRAHAMSON: What do you gather from
8 the discussion, Professor Kaye, as to what should be done,
9 if anything?
10 MR. KAYE: My current thinking is that Professor Imwinkelried and I
11 shall confer on modifying the first section of the report. The suggestion that the report make the analogy to fingerprinting quite clear is a valid one.
19 MR. IMWINKELRIED: I agree. We can run that by
20 both Barry and Jeff and get input from them as to
21 appropriate language as well.
22 CHIEF JUSTICE ABRAHAMSON: Okay. David, where do
23 we go from here?
24 MR. KAYE: You've heard what was the
25 uncontroversial part of our report.
1 [Laughter.]
2 MR. KAYE: Our group spent some time in discussing
3 some legal issues associated with the prosecutorial phase,
4 the trial phase, and pretrial discovery of DNA
5 evidence. These are, by and large, not issues that are suitable for the Commission to
9 make any kind of formal recommendations about but there was a feeling within the group that it might be helpful in a public document to describe the development of the law
12 on the admissibility of DNA evidence. The report discusses the standards that
15 the law uses for admitting novel and new scientific methods.
16 Another topic that involves proficiency test
19 results. Many arguments have been made about the admissibility of laboratory findings and proficiency testing. In light of the time we have spent so far, I don't
22 propose to go through those here. There is no question
24 that proficiency testing is important, but I would like to
1 move on.
2 I'm also going to skip over questions about
3 whether there should be an exception to the statute of
4 limitations for DNA testing. I will merely suggest that it would
5 be exceedingly difficult to draft a statute that created a
6 specific exception for DNA evidence.
8 In regard to DNA databases, I am going to discuss two kinds of
15 DNA data banking, what I will call limited DNA data
16 banking and more expansive DNA databases.
17 State statutes that provide for convicted offender
19 databases fall into several patterns and display considerable
20 variety. I will run through quickly the kind of questions that face a state or a
22 federal government in setting up a database.
I want to indicate before I begin the kinds
8 of criticisms that have been heard of DNA data banking.
9 Editorial writers have called for legislation to ensure that
10 “scientific advances in law enforcement do not swamp the
11 privacy rights of ordinary citizens.” There has been talk in
12 the Boston Globe, for instance, of “unfettered government
13 sponsored bio-invasion,”and other authors have warned of “a nation of suspects” resulting
14 from the creation of databases. These concerns need to be
16 kept in mind as one fashions a database.
17 One issue that arises is, how do you collect the
18 DNA? I'm not going to belabor that. There are surprising
19 variations in the statutes. California insists, or used to insist on two specimens of
22 blood and a saliva sample. While one might wonder why
23 different states take different approaches, I don't see this
24 as a major issue of national policy.
25 The more important issue is which offenses
should trigger a requirement
2 to give DNA. Currently about 8 percent of felons are
3 subject to collection. These are typically in sex crimes
4 and a few violent offenses. There is a clear trend, however,
6 toward expanding the scope of databases, and I would expect
7 we will see that continue.
8 The theories that might justify collection from
13 offenders are worth noting. One theory is a forfeiture of rights
15 theory. The Ninth Circuit said in one case in 1995 that
16 “convicted felons do not have the same expectations of
17 privacy in genetic information that free persons have.” The Fourth Circuit, in the first federal case on this issue, said something similar.
20 A theory that I find more congenial rests on a “predictivist thesis.” In the Fourth Circuit case, the court observed that “the program attempts to
24 address the problem of felony recidivism in Virginia by
25 identifying and increasing the likelihood of convicting
1 repeated offenders and by deterring those who otherwise
2 might commit a second felony.” It then refers to statistics
3 on recidivism, and additional studies form the Bureau of Justice Statistics are collected in our
4 report.
5 Predictivism gives one a basis for
6 identifying offenses that justify collection to the extent that one can satisfy two conditions. First, one must determine which offenses produce DNA
11 evidence. Those we might call target offenses, or
12 traceable offenses. White collar crime
13 is not typically going to be a type for which DNA evidence would
14 be very useful. Therefore, even if white collar criminals
15 are recidivists, one might not want to include them.
16 On the other hand, the collection crime should not
17 just be the same crime for which there is an elevated probability as compared to the general population. One need not necessarily be a previous murderer to be predicted to commit
22 homicide. Some reports on database hits in Florida and Virginia

1 suggest, for example, that small property
2 offenses may be indicators of later violent crimes.
3 We heard yesterday a mention of the 1992
4 NRC report. Written around the turn of the last decade in the last
6 century, this report remarked that the only useful collection crimes probably would be sex offenses. That turns out in retrospect -- hindsight
9 is 20/20 -- to have been shortsighted.
10 Nevertheless, even if we reject the forfeiture of rights
19 theory and say that we are interested only in deterring
20 crime and capturing people who have committed offenses, then
21 it does not follow that every felony should necessarily be
22 included. The issue requires more
23 empirical data than now exist. The 1999 federal DNA legislation
24 calls for the collection of statistics on the efficacy of the databases for specific crimes.
1 A third issue that has already been discussed before this Commission
2 involves the time at which one might collect this material.
3 Could it be at the time of arrest? If we adopt this
4 predictivist view, then the question would be, again, Are people who are
8 merely arrested so distinguishable from the general population that
9 the state should be able to take their DNA in light of the
10 extent of the invasion of privacy and the value to law
11 enforcement? That is the balancing test that would
13 apply under the legal framework of the cases upholding searches conducted without a and without individualized suspicion under a “special needs” theory.
14 One might argue that the “special needs” line of
15 cases should not be followed. Indeed, there is a narrower argument
16 that can be made for taking DNA on arrest. It is based on the need for getting an
18 unequivocal means of identifying an individual. We have
19 traditionally relied on fingerprints for that purpose.
20 Once the biometric identifier is obtained,
21 someone who escapes, for example, can be re-apprehended,
22 even if he has false identification, the police can verify
23 they have the right person; the police know who they have
24 arrested. That is a narrow argument, but it leads to the following question: if you
1 collect the DNA for pure identification, can it be put
2 in a data bank that is then against the unsolved cases?
4 I think the traditional Fourth Amendment approach
5 would be that if the government legitimately has a set of
6 records, it can then use it in other ways because the
7 invasion of privacy was initially justified. Of course, if there is
8 some further invasion of privacy that results from the
9 subsequent use, that would need to justified, but keeping the legitimately obtained information on file and using to solve cases is not itself an invasion of any new privacy interest. Fingerprint records, for example, could be put in a large database. The FBI some months ago announced that the automated fingerprint identification system, AFIS, has come
15 on line; with a few thousand dollars for a device to record a an “electronic” thumbprint at the station, police can determine whether the fingerprint matches one in the
19 database.
20 Can the fingerprints in a database come from arrested people? I think the answer is
22 probably “yes” under the Fourth Amendment. Similarly, for
23 purely identifying uses of DNA, the result should be the same. Here I want to emphasize that the analogy to fingerprints has to be complete, that
1 one has to talk about the limitation to identifying loci
2 that are useful essentially only for that purpose, that
3 contain no other socially significant or potentially
4 stigmatizing information that could be revealed and cause
5 harm to any individual.
6 If the system is so structured, I conclude that courts would
11 probably uphold this over some dissents.
13 Another important issue is the range of permissible uses that may be made of DNA once it is in a data bank. Let's go back to convicted offender
17 data banks. A conviction rather than an arrest is necessary to place a DNA profile in the database. All such statutes provide that the banked material or
20 the records derived from them may be used in criminal
21 investigations. Since the theory that justified obtaining the profile is that it is valuable
22 for law enforcement, that would seem
23 unobjectionable.
24 The statutes often provide for certain other uses,
25 and these have proved to be a little more controversial,
1 particularly in recent writings from what I will call
2 members of the bioethics community. Indeed this was the
3 subject of one or two briefs in the case challenging the
4 Massachusetts data bank which ultimately was upheld by the
5 Supreme Judicial Court of Massachusetts. There were a
6 number of arguments that by allowing other uses of the data
7 the statute was an unreasonable invasion
8 of privacy and an unreasonable search and seizure.
9 I think that argument is, in principle, well taken.
10 The question is, what are the range of uses that are going
11 to be allowed? Some people argue that statutory provisions
12 that would allow the material to be released under a court
13 order in civil litigation should not be allowed. But if the same
15 material can be obtained by an order to the person to appear
16 and give blood, it's hard to see
17 why it poses any constitutional problem to
18 collect it from a preexisting sample as opposed to
19 compelling the person to appear.
20 More contentious is the possibility of various
21 research uses. Here I shall talk about two kinds of research,
22 what we could call operational research and other research.
23 By operational research, I mean the use of the
24 records for statistical purposes. For example, to ascertain
25 whether alleles at a given locus are in Hardy
1 Weinberg equilibrium, or to ascertain certain
3 allele frequencies, might be useful
4 in computing probabilities that are related to the probative
5 value of a match of someone within the database.
6 Many of the statutes provide that anonymized records, the profiles
10 that are just numerical information, can be used in this kind of
11 research. That seems at least a permissible choice to make,
13 though not the only conceivable choice, where the records
14 are in fact anonymized and solely statistical information is involved.
16 Could the samples themselves be used at least if
17 they were anonymized so that nothing is known about an
19 individual? Could they be used for instance, to develop SNPs, or
21 to validate systems on a convenient set of data.
22 First of all, I think the Constitution would
23 permit this where there is no harm that can be shown to
24 individuals whose DNA was taken in the first place. This
25 would mean certain kinds of security would have to
1 be observed to ensure that individuals are not identified.
2 There is an argument about the lack of informed
3 consent in this area, but we should remember that we are
4 dealing with samples that were obtained without consent in
5 the first place. I think the situation that has engaged the
6 attention of the bioethical community in a very intense controversy about
8 tissue samples that are available in the millions in this
9 country for research does not apply with full force where the samples themselves are obtained involuntarily, but that argument isn't developed in full in this report.
13 I don't think it's a constitutional limitation that no research use could
15 ever be made.
16 More controversial research uses could be
17 imagined. It was argued in the Massachusetts case that the
18 samples might be turned over to locate “crime genes,” whatever
19 those might be. I don't think even behavioral genetic
20 researchers would claim that there is such a thing as a
21 crime gene, although they might claim that there is a
22 genetic predisposition toward risky behavior of all kinds.
23 This area of research raises other questions of public policy that
2 are very important to address, but whether
3 they are constitutional problems is a separate matter.
4 With respect to the constitutionality of these
5 databases, a very important feature that is
6 recognized in most of the statutes is the need for security.
7 If one is going to take the material and try to argue that
8 it is purely for identification and for deterring crime through identifying people, then any other uses that are made should not infringe on the personal interests of the
11 individuals. The question becomes then, how does one
12 obtain sufficient security in this area?
13 The leading case is one that Professor Imwinkelried alluded to
14 a little while ago which involved pharmacy records in New
15 York, records of prescriptions for controlled substances that were to be stored in a central location for the use of
18 criminal investigations. Those are medical records; those
19 are surely private in the sense of people's expectations.
20 Yet the Supreme Court in Whalen v. Roe refused to even treat these
23 records as having a specially protected privacy interest; it
24 proceeded on the premise that it was rational for the state to want them,
25 it could get them.
1 However, the majority of the Court emphasized
5 that there was security-- these materials were kept under
6 lock and key; there were a limited number of people with
7 access to them; the computers that had them were off line,
8 and so on.
9 It also noted that there had been no instances in the years
10 in which the program had been in existence of any leaks.
11 Those are cautionary observations that relate to
12 law enforcement DNA databases as well.
13 Of course the most secure form of avoiding any
14 exposure of personally significant genetic information such
15 as disease predisposition, would be not to retain samples
18 indefinitely, but to store only the records.
20 In the discussions within our
21 group there has been considerable sympathy with the view
22 that sample retention may be, on balance, undesirable. Certainly if one expands databases beyond convicted offenders to arrestees, the arguments for constitutionality become stronger if one does not retain the samples. That eliminates any
25 possibility of untoward invasion of privacy associated with
1 those records, even though there may be criminal penalties,
2 as there are in many states, against such uses.
3 The Working Group talked about all these issues. Should police try to infer the race of an individual from a DNA sample? Should we broaden the collection efforts to arrestees on the theory they are different than the general population? Which crimes can be predicted to lead to other offenses and therefore justify inclusion in the databases? These are all
10 very hard questions.
11 Some genius in our midst that maybe it makes sense to move
13 away from the assumption that we as a society have been
14 operating under for many years, which is that databases
15 should be limited to people who are already enmeshed in the
16 criminal justice system. This focus tends to have a
17 disproportionate impact, for example, on minorities, who
18 are statistically more at risk for
19 being involved in arrests and in convictions.
20 If we moved to a more expansive system, many of
21 those issues would disappear. If everyone's DNA were on
22 file, then there would be no concerns of unfairness as to
23 particular groups. Under what circumstances might it make
24 any sense to put everyone's DNA on file?
25 The matter is
1 so sensitive that the most extreme precautions would have to
2 be taken, probably including destruction of samples.
4 It certainly would not follow from anything we've
5 said that the newborn screening samples would be obtainable today by a
7 subpoena, by the way. Those were not obtained voluntarily.
8 They were obtained by requirements of state law for newborn
9 screening, I presume, in which case Miller would not apply.
11 Again, there is an argument that this would
13 be within the “special needs” balancing
14 test the Supreme Court has used in cases involving
15 collection of information that could be used in law
16 enforcement that is obtained as part of a broad regulatory
17 system. I thinks it’s arguable that the Fourth Amendment wold permit this in light of obvious advantages to law enforcement in having fuller records on people and the limited nature of these records. I'm being a bit of a Devil's advocate here because part of what our group wants
22 to do is to inspire public debate. We are not saying it should be adopted. Still, one might argue that a centralized database under strict control, with samples
1 destroyed, would be better than a proliferation of databases
2 obtainable by subpoena growing up in all sorts of private
3 hands.
4 I will leave you with these thoughts and see what reactions arise.
6 CHIEF JUSTICE ABRAHAMSON: Barry.
7 MR. SCHECK: I think the way that you get to that
8 last argument and this breathtaking prospect of universal
9 collection in order to prevent discriminatory usage by
10 justifying it under the special needs exception to the
11 Fourth Amendment, which is something that actually you
12 didn't discuss as a rationale here, shows why it's very
13 dangerous that the special needs exception has been used to
14 justify the DNA data bank legislation. If you took it
15 seriously, you might be able to make the arguments that Dave
16 is making, which I think are dangerous arguments.
17 The special needs exception was originally -- Ed,
18 correct me if I'm wrong here -- designed for a series of
19 cases where in theory you are not undertaking any kind of
20 particularized search. So you can do general administrative
21 inspections of houses. There is a general rule about
22 collection of samples from transportation employees after
23 accidents.
24 It has always seemed to me incredibly weak
25 rationale for the DNA data banks insofar as it's
1 disingenuous when the point of the data bank is to conduct a
2 particularized search as to whether or not the individual
3 committed a specific crime.
4 If you say, well, we're going to allow that under
5 the special needs exception, which is really nothing more
6 than saying how much does law enforcement want it versus how
7 much we think is reasonable in terms of people's privacy
8 rights, then, yes, you can probably justify, if you like the
9 special needs exception as rationale, taking DNA from
10 everybody. But I think that is divisive.
11 That is why I would say that you shouldn't give
12 short shrift, even though the courts have so far, to some
13 extent to this notion of an identification rationale for the
14 data banks, because it does seem to me that that is the
15 test.
16 I would put it a little differently, David. It's
17 almost like when you go out and you commit a violent felony
18 and you leave your DNA, as Norman demonstrated in his
19 carefully crafted exceptions to the statute of limitations.
20 It's sort of like leaving your picture and your name.
21 We have no objections in terms of the need to
22 accurately identify people within the system to see if they
23 have committed other crimes, to see if they have warrants,
24 to finding your name, your picture, even your social
25 security number that is associated when you are a convicted
1 individual.
2 That narrow kind of identification purpose is a
3 much better rationale than special needs, which I think
4 frankly is flabby logically under Fourth Amendment law to
5 justify these things, because you really are overlooking the
6 purpose of it is to search for that crime that is out there.
7 Finally, when we start talking about getting
8 access for other kinds of research, I take it more seriously
9 frankly. It's not just thrill-seeking behavior, but there
10 is plenty of interest in hardwired desires for narcotics
11 use; pedophilia, which you do mention in the paper, and sex
12 offenses will be an area of research. It's crazy to think
13 it won't. Even if it's multifactorial, people are going to
14 look at it.
15 It does seem to me that informed consent type
16 principles do have application here, because again, what I
17 don't really see as a part of the analysis here is this
18 notion that when you conduct other kinds of examinations of
19 the DNA sample that you have, that is a search or an
20 intrusion which requires a greater predicate under the
21 Fourth Amendment and is an invasion of privacy right.
22 If you are taking it for one limited purpose,
23 there is a constitutional requirement, I would think, to
24 start using it for another. You say, what's the objection
25 to taking DNA samples for purposes of civil litigation from
1 the offender's blood that is going to be preserved in a data
2 bank? What's the harm in doing that? Because you could go
3 about, in theory, and do it directly by going to the
4 individual.
5 I think the answer is, why don't you go directly
6 to the individual and go get blood there? The only time
7 that you would need to go to a data bank is for some reason
8 that individual is dead and you can't directly get it. Then
9 under some kind of analysis of no other means and a
10 balancing of needs there might be a case-by-case
11 determination of this.
12 I am troubled by these other rationales and where
13 they lead.
14 Last point. We skipped it very quickly. It
15 doesn't seem to me we are helping ourselves very much by
16 saying, well, there is no constitutional issue under equal
17 protection when we start looking at DNA left at a crime
18 scene that we can then type to race. As Dr. Crow was
19 telling us yesterday, what is the only race that we have the
20 ability to make any kind of sound inferences from? Blacks.
21 MR. CROW: Actually, I didn't say that. That's
22 the only one that has been studied properly. It was a good
23 guess.
24 MR. SCHECK: And you said also it's a good guess
25 that Hispanics is not going to be too helpful.
1 MR. CROW: Yes.
2 MR. SCHECK: And how sound are those numbers
3 anyhow?
4 You now have decisions of the United States
5 Supreme Court under Wren that you noted in the materials
6 where you can have a racial bias; you can pull somebody over
7 just because the officer wanted to pull over a black person
8 to search that person's car, which we now have the state of
9 New Jersey admitting to as a policy decades long. The
10 Supreme Court says in the Wren case you can't do that with
11 the intended racial bias, but if there was a broken tail
12 light, you have an objective basis to conduct, let's say,
13 whatever search would ordinarily be proper incident to
14 arrest.
15 There is an article I would commend to your
16 attention that you might want to cite by Tony Thompson in
17 the NYU Law Journal about a month ago, saying if you go back
18 and look at Terry v. Ohio, in a way that was a race case.
19 It was just a bunch of black guys hanging out in front of a
20 store in Cincinnati, Ohio, and they picked them up. Then
21 they came up with a more objective standard, but the issue
22 of race has been ducked here.
23 I think it's a serious equal protection problem.
24 We just finished a study in New York City of street stops
25 issued by Attorney General Eliot Spitzer that showed that
1 blacks and Hispanics were disproportionately stopped on
2 false arrests and wrong stops. This is reality.
3 I think, as applied, it is a constitutional
4 problem. It seems to me very troubling to say, well, we can
5 justify all of this by saying we could do it with all other
6 races, when in fact the only thing that we have to work with
7 here is distinguishing blacks. It's troubling.
8 MR. CROW: Or distinguishing blacks from blacks.
9 MR. SMITH: Judge Abrahamson, anticipating that
10 issues of this kind and others that came up during the last
11 couple of hours deserve further discussion, I did promise
12 the other members of the working group they would have an
13 opportunity at this moment to either add or amplify or
14 contradict some of the views already expressed. If it's
15 appropriate at this moment, we should do that. If it's not,
16 we should break.
17 CHIEF JUSTICE ABRAHAMSON: Woody wanted to say
18 something. Then we will break, and then we will come back
19 to the other members, if that's okay.
20 Woody.
21 MR. CLARKE: Thanks. I just wanted to return a
22 little bit to what Barry was talking about in terms of
23 special needs. I guess it's not really the label you put on
24 it as much as it is a question of public policy. I see it
25 in the context of arrestee sampling. The day may arise when
1 we have an inclusive database. I don't think it's going to
2 be in out lifetimes, but it may at some point in the future.
3 I think, as has already been noted, the move
4 towards at least in some jurisdictions taking samples from
5 arrestees is rapidly becoming a reality. It's going to be
6 litigated. It will either be discussed legislatively first
7 and then go from there.
8 This rather remarkable event actually made me
9 think of what goes on in my county. Almost every day, 365
10 days a year people are stopped and searched with no basis
11 whatsoever at a border checkpoint. I believe the basis for
12 that is a federal district court judge once a year signing a
13 general warrant.
14 So it has some applicability in the sense that
15 that measure is taken, and it certainly defies
16 constitutional interpretation other than on the basis of
17 public policy, and the public policy relates directly to the
18 problems associated with unlawful immigration and the
19 transportation of controlled substances.
20 To some extent that will, obviously, be discussed
21 in the context of sampling of arrestees. I think it really
22 boils down to a question of measuring, as courts will,
23 assuming legislatures pass such legislation, the benefit to
24 the public from sampling arrestees versus intrusion on the
25 individual privacy rights of others.
1 The border checkpoint has been discussed for
2 decades. It is certainly one of the clearest examples of
3 what would otherwise, I think, be interpreted as a search
4 based on purely a hunch. And that's all they are. People
5 are pulled over. They are searched, and there is absolutely
6 no need for any particularized suspicion. At least I
7 believe that is the current state of affairs.
8 I think that is going to play a role somewhere in
9 the future.
10 I did want to thank all the members of the working
11 group. It dawned on me 25 years ago I had the pleasure of
12 being a student of Professor Imwinkelried in a contracts
13 class. I want to assure you that is not what sent me into
14 criminal law.
15 [Laughter.]
16 MR. IMWINKELRIED: I want to comment on one thing
17 that Barry said, which I think was well taken. He said that
18 we have come a long way from the initial inroads of the
19 special needs doctrine with Cameron C. Cameron C. are
20 housing code enforcement cases where the Supreme Court says,
21 you know, this is a special public need and it is going to
22 be frustrated, the enforcement of these codes, if we require
23 case-specific, particularized showings of need.
24 So you have got a special need that can only be
25 met if we to some extent relax normal Fourth Amendment
1 standards.
2 One of the things I think David and I are trying
3 to do by citing that theory in this context is to raise the
4 public policy question: Are there special needs that can
5 only be met by moving towards more expansive databases?
6 That's the public policy question that we are trying to
7 press both the Commission and for broader public principles.
8 CHIEF JUSTICE ABRAHAMSON: With that, let's take a
9 break.
10 MR. ASPLEN: Before you go, either pick up here or
11 I will pass out at your seats draft recommendations for the
12 sample retention issue that we will be dealing with today.
13 Please take a few moments to read that during the break so
14 we can talk about it also.
15 Also, for the record, as you have seen, we do have
16 sign language interpreters here pursuant to our requirements
17 under the Federal Advisory Committee Act.
18 [Recess.]
19 CHIEF JUSTICE ABRAHAMSON: Michael Smith, you are
20 in charge for the moment.
21 MR. SMITH: Judge, I've never known you to give up
22 power quite that readily.
23 CHIEF JUSTICE ABRAHAMSON: What I give I can take
24 back.
25 [Laughter.]
1 MR. SMITH: We had a hardworking working group.
2 There were important things to be said by each member. So
3 why don't we just go around.
4 Jeff, do you want to start?
5 MR. THOMA: I will e-mail these suggestions. I'm
6 going to make some specific points where I differ. I would
7 pretty much join in Barry's comment earlier.
8 At page 3, footnote 11, we need to confine that to
9 the federal Constitution per footnote 5 of David's DNA
10 sampling article. It is not mentioned, though it is
11 mentioned in the article that it's confined to the federal
12 Constitution. You have the right to privacy in California,
13 for example, and other constitutions may hold differently.
14 Footnote 13 at page 3. There really isn't any
15 discussion of how DNA sampling constitutes an exigency.
16 At page 17, as Barry and I mentioned previously,
17 and Rock's position as well, a question about his take on
18 it. Probing into a person once you have DNA is a given if
19 you don't have the constraints. We've already discussed
20 that.
21 Page 5, footnote 22. It really isn't an exception
22 to probable cause, because the narrow focal group actually
23 fits within probable cause guidelines more or less. I think
24 it fits better there than as an exception to probable cause
25 in most instances.
1 At pages 8 and 9, I do vehemently disagree about
2 Miller, stretching from bank records to DNA information
3 about somebody. If you look at pages 10 and 11, footnote
4 52, it is not entirely persuasive, though I understand
5 Tennessee's and I understand Texas' position on it. We have
6 got medical records which we stretch from bank records, and
7 then we stretch it to DNA information rather than medical
8 records.
9 The same problem on page 11 with Thurman. It
10 misconstrues the reasonable expectation of privacy per Katz,
11 because you are talking about statistically people having
12 that reasonable expectation of privacy if they do this. For
13 example, in Katz it was what that person's reasonable
14 expectation of privacy is within the phone booth. I think
15 if you have got 87 percent or thereabouts believing they
16 have some reasonable expectation of privacy, it ends up not
17 being a subjective standard.
18 In talking about DNA, this is something Phil and I
19 have talked about briefly, but certainly he knows more about
20 it. Regarding medical information, what you end up doing is
21 literally getting to a point where people are suspect of
22 being involved in the medical system if they feel their
23 information is going to go out. I think you should have a
24 public policy towards people seeking medical advice and
25 medical treatment.
1 What you really have is directly the opposite. We
2 don't discuss that. If people realize that this information
3 at some point can be disseminated in many ways and not
4 stopped at some point -- I think the public good towards
5 seeking medical treatment should be more important than
6 whatever you want to make of the information that somebody
7 has to give up with regard to medical treatment.
8 I didn't say that very well. I will try to shore
9 that up.
10 Page 15, footnote 75. I disagree with that
11 footnote in that Woodson and Reidel may completely disregard
12 Miller.
13 I think you already talked about and we talked
14 about the scope of consent cases. I actually think that is
15 a good segue to page 16 regarding securing consent. That is
16 my first positive point, thought most of my other points
17 with regard to things other than what I am going to discuss
18 are positive with regard to some great work you did.
19 I will go on to page 24. I just want to make
20 certain that we state that Dow is based on a Federal Rule of
21 Evidence and it's not necessarily sound in jurisdictions
22 that don't follow the federal evidentiary rules. We don't
23 happen to. In fact, quite the opposite at some points.
24 Page 28 and 29. I've had this argument and it's
25 actually one of the few things in life I disagree with my
1 dear friend Woody Clark on, that STR necessarily follows
2 PCR-DQ alpha admission as reliable. I think there are
3 enough significant differences with regard to it that if the
4 courts allow one, they don't necessarily allow another.
5 Page 30 and 31, proficiency test errors
6 admissibility. I think we need to bring up the point of
7 Lockett v. Ohio. Even if we go outside Frye or Dow analysis
8 in Lockett, if it is something that could point toward
9 mitigation, that is, that errors could be made, et cetera,
10 our United States Supreme Court says automatically let it in
11 a capital case because there is a certainty that is
12 necessary with regard to the death penalty as a sentence.
13 NRC II's statement regarding inadmissibility. I
14 agree that NRC II does that. I actually find it a somewhat
15 sad commentary. I have found NRC II to be much more
16 partisan than NRC I. I realize that there are those of us
17 that are involved in that, and I have deep respect for those
18 people that are involved in NRC II, but I just personally
19 found it to be much more partisan than NRC I.
20 Page 31. There is some tortured logic in the last
21 paragraph. In California, for example, I don't know how you
22 could follow the logic of not allowing it under character
23 evidence if you follow any of the logic of, say, California
24 evidence codes 1101 to 1108 regarding character evidence. I
25 don't agree with the California law, but it is the
1 California law, and it comes in like the Queen Mary. It is
2 almost like a king's X against a defendant. They would lose
3 in both of these instances if you followed the logic of our
4 California evidence code with regard to that type of past
5 conduct evidence and didn't allow this regarding a
6 laboratory's reliability.
7 At page 32, along the same lines, the first full
8 paragraph I completely find objectionable. I will try to
9 point out as many times that this is recognized. I don't
10 believe it to be character evidence. I don't think you can
11 construe it as that. It is literally just a test of
12 reliability. If it's admitted, it goes to weight, and it's
13 important as to weight.
14 You can't just let it in and act as if there isn't
15 some type of problem with it somewhere. Obviously you end
16 up in a titanic struggle of cross-examination and redirect
17 examination, trying to bolster it again. It simply is
18 putting the lab's work in perspective. For example, eye
19 witness identification. If somebody has been wronged before
20 due to bad eyesight, that type of evidence certainly comes
21 in if it has to do with their reliability to do so.
22 If we look at Professor Loftis or Dr. Yarmie's
23 treatises in this area -- I will bring that in and show that
24 that absolutely has to be put into the perspective of
25 questioning. Not necessarily saying it's wrong, but at
1 least putting it in the perspective that it's less than
2 perfect. We've got in California evidence regarding putting
3 an officer's testimony in perspective sometimes along those
4 same lines.
5 Again, Lockett v. Ohio, regarding capital cases.
6 Then discovery. To go through the discovery area
7 and not bring in Kyles v. Whitley and Brady and acting as if
8 some evidence code can trump compulsory process clause, if
9 we go back to Burr v. United States, we are talking about
10 the defendant's right to compulsory process and to get all
11 the information with regard to the case. I think we are
12 going to have to treat that a little more suspect, or at
13 least that evidence code, and believing that the evidence
14 code can trump it.
15 I'm getting close to the end.
16 Page 33. It's tough. I am obviously speaking
17 from a defense perspective, but we rely now heavily on the
18 1996 NRC II. Between 1992 and 1996 I had a lot of problems
19 being able to rely on the 1992 NRC report when I would want
20 to. That is just more of a personal note than anything
21 else.
22 I had this discussion just before we went in with
23 Professor Imwinkelried after pages 34 to 36. For the moment
24 we have a disagreement with it. Since he was also my
25 professor, I will review Griffin v. California before I
1 actually -- and it is the reason I went into criminal law.
2 [Laughter.]
3 MR. THOMA: Actually, I worked with Woody. That
4 was one of the first things that got me into criminal law.
5 When I was in law school I clerked for him.
6 I believe, at least my reading of Griffin, that
7 the United States Supreme Court under Griffin wouldn't allow
8 that to occur. It would put the onus on the defendant to
9 basically show why you haven't done so and so. Basically,
10 it shifts the burden of proof on the defendant in a way that
11 I believe to be unconstitutional, but I promise you,
12 professor, I will read Griffin v. California again before I
13 put it to you in writing.
14 If you read 34 to 36, even outside of Griffin
15 there is the landmark case of Simmons v. South Carolina.
16 What you may be doing is forcing somebody, which Simmons
17 says you cannot do, to give up one constitutional right to
18 enforce another. Here the confrontation clause to exercise,
19 say, your Fifth Amendment right to not have to bring
20 evidence further.
21 Despite these comments, I've really enjoyed the
22 participation in our working group. I have a lot of deep
23 respect and admiration. I just wanted to let my dissent be
24 known on these points.
25 Frankly, I've been a bit busy. I had promised
1 David and Ed some of these comments earlier. I discussed
2 them, I think, at our last working group with David, and I
3 thought I would give them to him, and I didn't. So my
4 apologies for that.
5 I certainly am not taking away from the rest of
6 it. I really think it pretty much comprehensively talks
7 about what we have discussed, and in a way it throws out a
8 challenge to the rest of us to be thinking about some of
9 these issues. As my colleague Mr. Scheck mentioned, when we
10 have certain issues, I think we need to flush out the other
11 view as well.
12 Thanks.
13 MR. SMITH: Rock.
14 MR. HARMON: Thank you. Good morning. It has
15 been a pleasure. Thanks for the opportunity to speak to
16 you. I had never met many of you before.
17 My comments are really more overview and where we
18 fit into things and what I think is lacking to date.
19 When this Commission was formed, I thought this
20 would be a great opportunity to approve something that not,
21 as some people say, cuts both ways, but it cuts one way,
22 whatever way it cuts. Introducing something that only goes
23 one way and that nobody could influence into a system that
24 has two sides to it promised to be something fun to watch
25 and experience.
1 So I hope that whatever came out of this would
2 reflect where we really are. We really can't talk about the
3 future unless we know where we are. I think that is what we
4 have been lacking. Not only our group, but I think
5 virtually every other working group.
6 We have talked about predicting racial
7 characteristics or other characteristics from things. I
8 know when Mike wrote his introduction, I took issue with a
9 comment of his that said in time the offender backlog and
10 the case backlog would be done away with. As I have sat
11 there in my office in Oakland watching things grow and grow,
12 I wondered what the basis for that observation was.
13 Here is the shortcoming that exists to date.
14 There has been absolutely no discussion or no attempt to
15 quantify the past. When I say the past, I means those tens
16 of thousands of unsolved but easily solvable cases, human
17 misery and death that are sitting in our police departments
18 in this country, and virtually nothing is being done to
19 address them. We've talked about what we already know to
20 have been quantified, and that is the offender backlog, and
21 it was really only the existing backlog, not the expected or
22 the real old backlog.
23 As I sat and watched different efforts by the
24 group, I wondered why that was not being quantified. I know
25 there was a survey that was put out by the lab funding
1 survey group. When I heard about it, I expected that
2 would address the problem, and it doesn't. It really
3 understates the problems.
4 I don't seek funding, but I see the people who
5 seek funding: you're always going to get a lot less than
6 you ask for, and you try to quantify something to try to get
7 10 percent or 20 percent or whatever the return on these
8 requests is.
9 As I reviewed the lab funding survey results, I
10 thought, well, this is going to make it worse, because the
11 mound of human misery is going to pile up behind us while we
12 get a small portion of what we have attempted to quantify
13 and present as hope to address the problem.
14 In looking at that survey, it talked about rapes
15 that were submitted. Most cops won't submit something if
16 they know it's not going to get done. There has been very
17 little incentive unless it's in, as the police officers call
18 it, a CYA mode to put in a piece of paper to ask for
19 something to get done when you know it's not going to get
20 done.
21 If we can see the face of a missing child on a
22 milk carton, we need to identify and quantify the tens of
23 thousands of, let's just say, unsolved murders of women in
24 the last 30 years. In the city where my office is located
25 it's about 300. Just multiply that across whatever figures.
1 We will never begin to project what we need to do
2 for the future. We can do that, but we're going to ignore
3 those, and they will die by attrition. The offenders will
4 get out of prison and do it again and again and again. The
5 very premise of the future, we've missed probably the most
6 powerful part of the presentation, and that is those cases
7 that are sitting there and absolutely nothing is being done.
8 In that regard, I wasn't here. This isn't a
9 criticism, but it's an observation. It's my understanding
10 that the International Association of Chiefs of Police
11 endorsed the arrestee sampling provision, but I say that is
12 to the detraction of ever addressing the quantification of
13 the thousands of human misery and deaths that are just
14 waiting there hoping that somebody comes along to do
15 something about it.
16 You probably ought to mark your calendar. This
17 may be the only time Barry and I will agree on some
18 passionate, intense issues. All these other issues about
19 universal database and arrestee sampling, those are
20 distractions that will prevent us from ever addressing what
21 is behind us. If it's behind us now, in ten years as you
22 predict in the future, it's going to be still behind us if
23 we don't do anything about it.
24 We can do something about many of those old cases,
25 and we won't know until we try, and I see very little being
1 done in this country to try that.
2 There has not been any demonstrated need for a
3 universal database. There is not one state in this country
4 which is close to the potential that the databases afford
5 either in complete offender sampling or in accounting for
6 all of these unsolved cases.
7 I know, because I was at SWGDAM meeting last week,
8 that crime lab members and leaders are petrified at the
9 thought that every chief of police is going to bring in
10 their unsolved cases. So we have this silence here. While
11 we discuss these issues here, they operate in a crisis state
12 every day. There is absolutely no way you can ask them to
13 do these unsolved cases.
14 The universal database is contrary to the very
15 premise that got us in the door on this offender database,
16 that a few people commit all the crimes. It takes away from
17 limited resources, and it is really contrary to the very
18 reason that we have been able to withstand legal challenges
19 to these databases that we are selecting people who are
20 likely to have committed the crimes.
21 That is all I have to say on the overall issue. I
22 can't be here this afternoon, so let me just say one thing
23 -- we can disagree on this one, Barry -- about the proposed
24 statute, the postconviction testing statute.
25 In my opinion, there are two very simple issues
1 that need to be addressed that if resolved the entire body
2 of the proposed statute would be probably acceptable to most
3 prosecutors.
4 In the very beginning, the first line and
5 background, there are actually two ways that postconviction
6 testing can be done. One is in the context of a motion for
7 a new trial, and the other is in a habeas corpus proceeding.
8 The statute, the way it is currently worded,
9 suggests that the usual statutory vehicle is a motion for a
10 new trial. That was done because many states in this
11 country have a numerical time limit on those motions. It is
12 not my experience that that is the most usual way that
13 happens.
14 The reason it's important to sell that to the
15 Commission is because then it becomes attractive to do
16 something that doesn't have a time limit on it. I say that
17 is inconsistent with the legal experience in this country
18 that that is the usual way. It is usually in the context of
19 habeas corpus.
20 The reason it is presented in this context that
21 that is the usual way is because the law imposes some
22 demands on any defendant who wants to try to institute
23 habeas corpus proceedings. That is a burden that is imposed
24 on them because they are no longer presumed innocent.
25 The language that I find offensive is it's hinged
1 on the notion that these arbitrary time limits must be done
2 away with and that a proceeding may be instituted at any
3 time. That is really the only offensive language that I see
4 in the entire proposed statute.
5 Once a proceeding is initiated, then everything
6 else stops. Having spoken to a forensic scientist who has
7 done many of these postconviction testing cases for Barry
8 and for other people, his views on this were that many
9 attorneys that he works with -- not Barry -- view DNA
10 testing as the thing that you hold out, that you try to do
11 it at the end of it to prolong the process; you don't want
12 to get to the bottom of things early on if you have
13 alternative ways to attack the record.
14 I suggest that anything that you do should not be
15 to subvert the orderly process of the legal system but to
16 get to the truth of it. The presumption of innocence is
17 long gone. This is a person who has been convicted by the
18 rules, and allowing somebody to come in on the eve of an
19 execution date and institute a proceeding that would
20 absolutely stop everything else that is going on I don't
21 think would accomplish anything when it's the very
22 institution of the proceeding that would allow somebody to
23 stop the process and not any sort of evaluation of the
24 merits of the issues that are raised in the proceeding.
25 Thank you.
1 MR. ASPLEN: If I could invite Rock to continue
2 his discussion on the non-suspect cases and the old cases as
3 we continue to do the work here.
4 I know you couldn't be here yesterday afternoon,
5 but I think it's fair to say that there was a real sense of
6 frustration even in the discussion we had, recognizing
7 exactly what you are saying, the extent to which we haven't
8 gotten our arms around the non-suspect case issue. We have
9 literally included it as a subpart of every recommendation
10 we sent up. It has been referenced in all three
11 recommendations we sent, and we are continuing to do some
12 things.
13 I think it's a fair characterization that we share
14 the same sense of frustration that you do, because it is a
15 more complex and an infinitely more expensive proposition
16 than what we have dealt with already.
17 MR. HARMON: It is the missing ingredient that
18 identifies how serious this is. I think offender backlog is
19 an illusion. You can't solve cases if you don't have them.
20 MR. SMITH: Dorothy.
21 MS. NELKIN: I will be brief. A lot of points
22 were covered before.
23 I start out with real problems on the argument
24 which seemed to be predicated on the idea that tissue is
25 like financial information and that people lose property
1 interest in their tissue once they have an operation and
2 it's stored or they die, or whatever.
3 The question of control of tissue samples is in
4 fact highly contested. Most people have no idea when they
5 go into a hospital that their tissue is being banked and
6 even sold. Sloane Kettering sold all its cancer tissue
7 samples, I believe.
8 Also, the notion of voluntary consent, although it
9 is put in quotes in the text, is limited in the medical
10 context.
11 Also, there is a whole issue which I think is
12 underplayed in the research. People, maybe even when they
13 do consent, they consent for some uses, but they don't
14 necessarily consent for other uses. This is being contested
15 with respect to the CDC tissue samples which were part of
16 research. I guess it was testing for cholesterol, and then
17 pathologists wanted to use it for cancer research.
18 That whole issue, I think, needs either
19 development or qualification.
20 I also had problems on the race issues around page
21 23, with the sentence that there is no risk that a
22 subjective decision-making process will use race to the
23 detriment of racial minorities. The formulation seems kind
24 of naive, and I think it does need some development, but I
25 think Barry covered that.
1 During the discussion -- I can't remember if it
2 appeared in the report -- there was an appropriate dismissal
3 of the idea that there is a crime gene. That is an
4 extraordinary simplistic, journalistic kind of formulation.
5 Nevertheless, there is a great deal of research going on now
6 into behavioral genetics, which I think says a great deal
7 about potential future uses of DNA information.
8 Finally, although I understand the rationale
9 behind the idea of a universal data bank, I think it has to
10 consider the notion of public mistrust, of the ability to
11 maintain confidentiality of data, concerns about use,
12 concerns about using data banks for surveillance for other
13 purposes, not just criminal behavior, and also the whole
14 social need of DNA, which extends far beyond what scientists
15 are willing to admit. It's the notion of body integrity,
16 the notion of personal identity, not just identification.
17 It's an issue.
18 If the report is going to have public credibility,
19 it should somehow contemplate some of these broader issues.
20 Thank you.
21 MR. SMITH: Phil.
22 DR. REILLY: I think the constitutional analysis
23 has been important, but I see it really only as a marker on
24 the grounds to which we can refer to as we move forward into
25 areas that really the courts have not decided.
1 I think Ed was just right when he said this is a
2 discussion to help build the foundation for the most
3 articulate possible analysis of what the public policy
4 should be.
5 I think Dorothy's point about the public trust is
6 a very important point.
7 Frankly, I am very moved by Rock's point. I think
8 about these things too, but you kind of grabbed my heart
9 when you talked about that.
10 I would like to mention one thing to you, Rock,
11 and that is that there a few things I think we can predict
12 with a high degree of accuracy. Databases are going to
13 proliferate. I don't mean forensic databases; I mean
14 databases with DNA. They are proliferating and they are
15 going to continue to proliferate.
16 The cost of acquiring information about a sample
17 is going to fall like a stone knocked off the tower of Pisa.
18 There is no doubt about it. Can I predict whether it's
19 going to be three years or five years or seven years? I
20 can't. And it doesn't dispute the fact that there is a
21 reality right now of tens of thousands of people who could
22 be served by this.
23 Our ability to get access to this information one
24 way or another is going to grow.
25 How do we weigh these what I think are facts or
1 very strong givens with the issue of public trust or the
2 making of public policy?
3 It seems to me, recalling what our mission is, to
4 make a better criminal justice system, to exonerate the
5 wrongfully accused, and to make it more efficient, that we
6 have to sort of weave all these threads together. The most
7 important one, it seems to me, is the issue of public trust.
8 What troubles me most about our deliberations, and
9 it's not our fault, and this continues to be a
10 phenomenological truth, is how little awareness the public
11 has with what is going on after all these years, ten years
12 into the human genome project, 15 years into DNA forensics.
13 The average person on the street has, I think, very little
14 conception of the issues we are debating here about the
15 universality of DNA databasing.
16 The question to me ultimately becomes a question
17 of crafting a system that meets the measure of public trust
18 and delivers the safest possible society to the public.
19 Therefore, I think every issue, including universal DNA data
20 banking, should be on the table.
21 There is a very good bet if you are under 30 years
22 old and you are in the United States your DNA is stored
23 somewhere because of newborn screening. It remains an open
24 question as to how those databases will ultimately be
25 integrated into the quest for universal DNA banking. I
1 don't know what the answer would be. I don't know whether
2 there is a constitutional prohibition against it or not.
3 Since we meet so infrequently and the matters we
4 debate are of such import, I think what we really have to do
5 is devote as much time as possible to seeing how we can move
6 forward to reach the goals that ultimately we all agree on
7 and capture the public trust about these matters.
8 That is not a solution, but hopefully it's a
9 little bit of beacon of light through the fog that we all
10 feel.
11 MR. SMITH: As chair, of course, I have lots of
12 things to say. They have all been said so well. I'm just
13 going to let it be that. That's my report. My gratitude to
14 my colleagues on this working group is enormous. My
15 gratitude to you for listening to us is great. If there is
16 anything else we can do for you, let us know.
17 We have some cleaning up work to do ourselves. I
18 can see that.
19 DR. DAVIS: Madam Chairman.
20 CHIEF JUSTICE ABRAHAMSON: Yes.
21 DR. DAVIS: Could I just add a little comment to
22 the working group. I discussed this with Michael Smith a
23 little earlier and he suggested I do this.
24 From the standpoint of the medical examiner, we
25 are involved in medical legal death investigation and we
1 have a dead body in our clutches, so to speak. We run into
2 situations where we do have to access data banks.
3 I would like to preface my remarks first by saying
4 that about 90 percent of any medical examiner or coroner's
5 office work is non-homicide. In fact, 60 percent of our
6 work is usually in the field of natural disease. Our duty
7 is to determine the cause and, aside from that, opine for
8 death certificate purposes the manner of death.
9 There are some privacy issues when we get
10 involved. One is the identification of the unidentified
11 body. Here we use data from private sources: medical,
12 dental, and occasionally some DNA that may be stored
13 someplace that will help us identify this dead victim.
14 Secondly, of course, we use records to develop the
15 cause and manner of death. I can't think of any DNA
16 incursions that may arise, but it's possible that maybe
17 someday cause of death may be influenced by some DNA
18 repository someplace. That is more theoretical.
19 But it is common for us to seek medical records
20 for identification purposes and for diagnostic purposes.
21 Not common, and rarely we have invoked this, and that is to
22 either include or exclude the dead person from participation
23 in a previous crime. The DNA of that person would need to
24 be matched with the DNA that may be on file someplace else.
25 So those are considerations when we are dealing
1 with a dead body.
2 From the standpoint of privacy, Florida, under
3 Chapter 119 of the Florida statutes has a public records
4 law. Included under public records are medical examiners'
5 records. They are wide open. Anybody can walk in off the
6 street and look at any case file in my file.
7 However, there are some exceptions that are based
8 upon an Attorney General's opinion that has not yet been
9 challenged. One is that private records that we have
10 acquired by virtue of our authority to investigate do not
11 lose their privacy once we have them.
12 We have found over the years that the attorneys we
13 deal with and everything else are quite amenable to this,
14 because they can go back to the original primary source
15 anyway, and they respect our interpretation of this.
16 The other exception is that if our records are
17 released, it should not be if it will harm an ongoing
18 criminal investigation. It isn't the ongoing criminal
19 investigation; it's the harm to the ongoing criminal
20 investigation. So just as a matter of general course we
21 usually don't release the records during the investigative
22 phase of a homicide, but once it reaches the accusatory
23 phase, anybody can look at it, because they all look at it
24 anyway. The defense attorneys and the defendant all have
25 access to those records under the Florida discovery laws.
1 I would like to make a little special comment.
2 Florida some years ago passed an HIV privacy law, which is
3 very, very strict and covers all people. The HIV status of
4 a person in Florida is severely restricted in terms of
5 privacy.
6 Through an interpretation by one of our assistant
7 country attorneys, who is of somewhat liberal persuasion --
8 I wish he hadn't interpreted it this way, but his
9 interpretation is that this also applies to the dead that we
10 have. That results in us having a little envelope in the
11 file in which our HIV testing is kept on file. So far it
12 hasn't provoked too much problem. But I would like to make
13 some comments about this.
14 Prior to the open records law we found in Florida
15 that irregular applications of privacy claims to medical
16 examiner records caused a lot of problems for families and
17 their representatives, especially in estate settlement
18 issues.
19 Insurance companies. In one jurisdiction they
20 would go to a medical examiner's office and get the
21 information. In other jurisdictions the medical examiner
22 would defer to the prosecutor and say no, even though it was
23 a perfectly natural death and there was no reason to
24 restrict it. It was just a hodge-podge.
25 Eventually we were able to straighten that out and
1 get everybody under the open records law, and that has
2 improved the situation quite a bit. In other words, an open
3 record is far better from the standpoint of society than a
4 closed record. That, I think, is very important to keep in
5 mind when we are dealing with these dead bodies.
6 The final comment that I would make to the Legal
7 Issues Working Group. As you review these laws and you
8 consider the future, just keep in mind that way off working
9 in the shadows there is a medical examiner who has a dead
10 body and there are certain issues that are necessary for the
11 proper performance of medical examiner work. It should be
12 kept in mind that nothing should be promulgated that would
13 interfere with the orderly working of the medical examiner.
14 That is my comment for the record. Thank you.
15 CHIEF JUSTICE ABRAHAMSON: Thank you.
16 Are there further comments on this?
17 Barry.
18 MR. SCHECK: First of all, I subscribe, as you all
19 know, very strongly with Rock's remarks about the unsolved
20 cases and that we have to still find some way to put that on
21 the public agenda or, as he says, we will never get to them.
22 They will literally fade away.
23 I think we can accommodate your point that you can
24 try to pursue these things through habeas corpus in theory
25 in the postconviction context. Actually now we are using
1 federal civil rights injunctive relief lawsuits to get
2 access to the evidence, which may be the best and cleanest
3 way to do this.
4 One thing that this committee did not address. I
5 must say that this is an issue from day number one when we
6 met in the planning meetings that I raise every time. As
7 rock pointed out, we have to deal with what is going on.
8 That is the issue of the privacy rights of individuals who
9 give elimination samples.
10 I would still very much like to see this
11 Commission actually work out written forms for the obtaining
12 of DNA samples when an individual is giving consent to turn
13 over a sample if you are going to be a suspect, and another
14 form that puts out informed consent if it's for elimination
15 purposes.
16 The issue of what do you do with the elimination
17 samples is something I think we have to address.
18 Chris, I noticed in the report that there was an
19 indication that in Great Britain they have recently changed
20 their position as to whether or not they put the elimination
21 samples in the data bank. Is that right?
22 MR. KAYE: You mean from mass screens? There was
23 a mention of that in the report.
24 MR. SCHECK: Yes.
25 MR. KAYE: The legislation, as I understand it,
1 adopted this summer in Great Britain provides that if the
2 individual gives written consent to have the sample
3 retained, then it is retained. Otherwise it is not.
4 MR. SCHECK: In other words, when you give an
5 elimination sample, as part of the informed consent
6 procedure in Britain, if the person says I want to put my
7 DNA in there for universal screening purposes, they can.
8 That's the provision?
9 MR. KAYE: Yes. The Home Secretary said people
10 were being frustrated by the inability to have their samples
11 remain on file.
12 MR. SCHECK: Peculiarly British. That actually is
13 important to note, because I think when the presentations
14 have been made in the past we were told that is not their
15 practice to put it into the data bank. But this is an issue
16 we have to deal with right now.
17 So I think we have to do something on these forms,
18 the informed consent form. The part where there was a
19 discussion of Schneckloth and Bumpers is all accurate with
20 respect to what the law is, but it's a bit of a different
21 area. It's a particularized search: we want to look in
22 your home or we want to search you here -- here we are
23 saying we want your DNA, but it's got to be clear. Is it
24 just for fingerprint purposes, just for elimination, and how
25 long are you going to keep it? And when does it stop?
1 That we have found to be a complicated issue.
2 Right now in New York we are trying to deal with this in our
3 Forensic Science Commission. I don't know how far we are
4 going to get. We have a case of a guy that gave an
5 elimination sample and wants it back, and the Westchester
6 County Medical Examiner's office doesn't want to give it
7 back even though by all counts I guess the case is over.
8 We are talking here about destroying blood sample,
9 as to whether you can keep the digitalized record in some
10 kind of a sealed form for later examination. There are
11 different ways of dealing with it, but this is an issue we
12 have to deal with.
13 MR. IMWINKELRIED: There is one line that we could
14 certainly add to the text. Even with Schneckloth it's
15 unclear that if a suspect speaks up and says on the one hand
16 I'm generally giving you consent, but these are the
17 limitations. For example, a person saying you can look at
18 the living room, you can look at this one, but you can't
19 look in the other one. That would be a legally effective
20 restriction voluntary imposed, and respect for that type of
21 limitation is perfectly consistent with the general law.
22 MR. SCHECK: This is complicated. There are
23 aspects to this that I honestly don't know what to do with.
24 Let's say that you give an elimination sample and they don't
25 solve the crime. There may be a reason to hold it, or hold
1 it in some form for some period of time.
2 I think we have to address that one, and it would
3 be good if we could come up with these forms. I think it
4 would give guidance. We are only at the beginning of the
5 era of mass screening. That's only just begun.
6 This is where the Commission could make its most
7 useful contribution, if we could set up some policies that
8 are both protective of privacy but are not unduly burdensome
9 to law enforcement.
10 CHIEF JUSTICE ABRAHAMSON: Are there further
11 comments?
12 On behalf of the Commission, I want to thank the
13 Legal Issues Working Group for their report and for the
14 excellent discussion by the members thereof. I am assuming
15 there will be some rewriting of that report and it will come
16 back to the Commission, and that these reports are going to
17 be very useful as background material for the Commission's
18 ultimate report and as documents in the literature.
19 As you all know, we are talking about a symposium
20 on these legal issues for the fall or as soon as that can be
21 arranged.
22 I am ready to leave this. I would like to move to
23 the issue about retention of samples regarding the CODIS
24 convicted offender database samples.
25 We got a letter from Dr. Arthur Eisenberg of the
1 University of North Texas, who is chair of the DNA Advisory
2 Board. I also spoke to Art about this.
3 Does everybody have a copy of this letter?
4 MR. ASPLEN: It was faxed to everybody on Friday.
5 CHIEF JUSTICE ABRAHAMSON: The DNA Advisory Board
6 is considering as part of its mission a recommendation on
7 retention of CODIS convicted offender database samples. The
8 DNA Advisory Board would prefer, I think, that this
9 Commission not make a recommendation, and if it does,
10 preferably make the same recommendation that the DNA
11 Advisory Board is making so that the Attorney General did
12 not get conflicting recommendations.
13 I don't see that either group has exclusive
14 jurisdiction of each other or anybody else in this area. I
15 discussed this briefly with Art, and we will discuss it more
16 at their meeting, which is February 23rd. I am on that DNA
17 Advisory Board. They are not exclusive, and I don't think
18 the Attorney General's office will be shocked to have
19 conflicting recommendations or views on a whole variety of
20 issues. I am sure there are a variety ways of handling
21 this.
22 I guess there are two aspects of this. One, your
23 comments about whether we should handle this or just let the
24 DNA Advisory Board handle it, and two, to say that we did in
25 the summer approve a recommendation on offender database
1 sample retention. Or at least we discussed that.
2 We came to a conclusion, as best we remember it,
3 that we thought the sample should be retained for at least
4 five years and then the issue should be explored again
5 because there may be new technology and new information on
6 this. We were prepared to move forward on that.
7 So two issues are before you, and you have before
8 you a working draft of a recommendation.
9 Chris.
10 MR. ASPLEN: In the previous discussions, the
11 chief is referring to the Boston meeting which I think was
12 the last time we took up this issue substantively. I
13 believe Dr. Crow chaired. I don't believe that a time frame
14 was specifically discussed and agreed to at that point.
15 What you have in front of you is a combination of
16 the discussion that was there and some discussions that were
17 had at the last meeting in Washington, D.C. It's simply a
18 compilation of those.
19 What you will see is an explanation that the
20 Commission has essentially determined that there are
21 legitimate reasons for the retention of the samples; there
22 are legitimate privacy concerns that are associated with
23 that.
24 However, because of the extent to which we are in
25 the infancy stage of the entire utilization of the DNA
1 database, there is a value to retaining samples for a given
2 period of time, in this instance five years, and then
3 reevaluating that issue preferably by a body that is of a
4 broad-based constituency, if you will, that is
5 representative of privacy advocates, law enforcement, the
6 judiciary, et cetera, et cetera, as opposed to reconsidering
7 that proposition purely by practitioners.
8 It also recognizes that while we suggest the
9 retention of samples because we are in the beginning stages
10 of database usage, there are things that we recognize could
11 be done to ensure and address privacy concerns in the
12 interim.
13 That includes issues such as limiting the research
14 that can be done on database samples and the kinds of
15 research that can be done on those samples, and also the
16 issue of criminal penalties in all states as opposed to the
17 34 or 36 states.
18 There are a couple of arbitrary things in here. I
19 shouldn't say arbitrary.
20 CHIEF JUSTICE ABRAHAMSON: Discretionary.
21 MR. ASPLEN: Not even discretionary. The date of
22 April 3, 1999, I'm not sure if that's correct only because I
23 didn't have the letter on me. It's at the office, so I just
24 threw a date in there. As well as the exact date of April
25 31st. I'm not sure that that's exactly correct. However,
1 assume that the correct dates will be put in there.
2 I am not sure by recollection whether the number
3 of states that contain criminal penalties for DNA database
4 misuse are 34 or 36, but we will get that number right also.
5 I just put that in there.
6 CHIEF JUSTICE ABRAHAMSON: Phil
7 MR. REINSTEIN: I would like to say something
8 briefly about the letter. I am troubled by this letter. I
9 would be very upset if this group did not feel comfortable
10 weighing in on the retention of samples issue. Particularly
11 to the extent that it says it appears that the DAB has "the"
12 statutory mandate to address sample retention. I am not at
13 all sure that that is the correct use of the article.
14 Perhaps "a" statutory mandate would be appropriate.
15 Having vented my peak about that, let me go on and
16 address the issue here.
17 I am concerned about the three paragraphs stated
18 as the "therefores." Personally, I could only comfortably
19 accept A if B and C -- I'm lettering the paragraphs -- had
20 more teeth. I think it is not enough to say "recommends
21 that you advocate for the passage of criminal penalties for
22 the misuse of a DNA database" in paragraph D. I think a
23 recommendation to retain samples for five years must be
24 coupled directly with an immediate, very strong effort to
25 get the other 14 jurisdictions up to speed on uniform as
1 possible penalties.
2 I think the bulk of the consent about these
3 databases in the future will be other uses of the samples.
4 I'd have nothing but operational research at this time.
5 MR. ASPLEN: Simply making paragraph number 1
6 conditioned upon and include at the end of paragraph 1
7 "conditioned upon the following"?
8 MR. REINSTEIN: I said A only if B and C. And not
9 make it advocate.
10 MR. ASPLEN: There is an operational issue there.
11 We are making recommendations to the Attorney General in an
12 issue like this that is often state driven and the decisions
13 are made on the state level. She may not be able to do
14 anything other than advocate for those particular issues,
15 which is why it's placed that way.
16 You will remember that this issue came up in the
17 arrestee sampling matter. We could suggest to the Attorney
18 General that she perform or not perform arrestee testing,
19 but rather it had to be from an advocacy standpoint.
20 MR. SMITH: Just out of curiosity, if there are
21 jurisdictions now that have provision for sample destruction
22 under some circumstances, under all, whatever they are,
23 local policy basically, this surely isn't suggesting that
24 the Attorney General advocate that those state legislatures
25 convene to change their statutes to provide for five years
1 of retention. That can't be what we have in mind. It does
2 say that now. So it goes a little bit too far.
3 It also says that at the conclusion of five years
4 this question will be revisited. I'm not so sure that that
5 is the message. It needs to be revisited within five years.
6 It's not obvious we should wait five years to do it.
7 MS. BASHINSKI: I would ask a question for
8 information purposes on the DNA Information Identification
9 Act of 1994. It's my understanding that it is already the
10 case, based on this quote, that there is a federal
11 restriction on uses to which CODIS samples can be kept, and
12 I think there may also be a federal restriction on what
13 samples can go in. Do they not say convicted offenders? I
14 don't recall that part of the statute.
15 MR. HARMON: Yes, it does.
16 MS. BASHINSKI: If that is the case, we are really
17 merely saying just enforce the federal law because it
18 already exists.
19 MR. ASPLEN: I'm not sure that the discussion that
20 has been had up to this point and continues is that that
21 federal law is clear enough.
22 MS. BASHINSKI: Right, but the federal law does
23 cover what is stated in here, which is that the convicted
24 offender database samples can only be used for specified
25 purposes, does it not?
1 MR. SCHECK: I wish you were right. The way the
2 statutes are set up the restriction is on CODIS information,
3 and you also have to meet CODIS standards, and you can only
4 use CODIS information in a certain way and input in a
5 certain way, but it doesn't necessarily say to the states
6 that you must, to be part of the CODIS system, have a
7 particular policy on what you do with the samples. That is
8 not part of the statute.
9 MS. BASHINSKI: That is true. This doesn't talk
10 about the samples either. It talks about database samples.
11 MR. SCHECK: That is where the issue is.
12 MS. BASHINSKI: Basically it is amplifying on what
13 is already in the federal statute.
14 MR. SCHECK: That's correct.
15 CHIEF JUSTICE ABRAHAMSON: Jim.
16 MR. CROW: I have a little different concern. I'm
17 not as sure as you are, Phil, about the total undesirability
18 of doing any research on these data. What if one asks what
19 the gene frequency of convicted felons is relative to the
20 population as a whole? Is that a prohibited subject?
21 DR. REILLY: I would advocate to prohibit that for
22 the next five years. I think the political damage to the
23 effective working of this system is far worse from
24 investigating that. Furthermore, I'm not sure we have the
25 tools in terms of genotype/phenotype correlation to do the
1 research in the next five years.
2 MR. CROW: That is a judgment about the quality of
3 the research, not the desirability of it, as far as I can
4 see.
5 DR. REILLY: I would distinguish the desirability
6 it in a perfect world from the political realities. If two
7 years into this we see a lot of, whether it's good or bad,
8 behavioral type research being done on these databases, it's
9 going to be the death knell of this system. I guarantee it.
10 MR. CROW: The almost certain prediction is that
11 you are not going to find anything. On the other hand, I
12 think asking the kind of question that David did, are these
13 in Hardy Weinberg equilibrium, questions like that, I don't
14 see that these have any social significance whatsoever.
15 DR. REILLY: But I did say, did I not, operational
16 research, and that is exactly the kind of research that I
17 would permit. I didn't say no research; I said just
18 operational research.
19 MR. CROW: This says limited to validation studies
20 necessary to ensure reliability of the data for the CODIS
21 database.
22 MR. ASPLEN: Thus the title "working draft."
23 CHIEF JUSTICE ABRAHAMSON: What does operational
24 research mean?
25 DR. REILLY: For example, I think allele
1 frequencies are within my meaning of the term.
2 MR. CROW: So they would be all right.
3 DR. REILLY: They would be all right. What I
4 don't want to see is this. I don't want to see somebody
5 pulling all the records of people convicted of vehicular
6 manslaughter, if that is a correct statement of the crime,
7 and then looking at the dopamine D4 receptor to see if they
8 have a differential frequency of it and therefore saying
9 these people are more likely to be drunks and therefore more
10 likely to kill, et cetera, et cetera. That is going to harm
11 every side of this system.
12 MR. CROW: Can't you protect that better by asking
13 for strict anonymity? I'm assuming that the database
14 doesn't identify a person as to the reason he is in the
15 database.
16 DR. REILLY: No, but you would be pulling out
17 selected cohorts of the database. You would say, I want the
18 convicted felons who are convicted of crime A, and in some
19 states that is actually a big challenge to anonymity. In
20 smaller states that is going to be a relatively small
21 database.
22 MR. CROW: I share that concern, but I wonder if
23 you can't take care of it by strict anonymity.
24 MR. SMITH: You can in some senses, but what Phil
25 has done over the course of these meetings, and Dorothy in
1 our working group, is to say, look, the vulnerability of the
2 underlying technology here, which is so critically important
3 to exclusion and inclusion in investigations and proof,
4 requires us to be very attentive to the non-scientific,
5 non-legal questions that are going to influence the
6 political environment in which these things should take
7 place. This is a protective resolution by us.
8 There are researchers out there now to do research
9 of a kind on these samples which could very much unsettle a
10 consensus that it is wise for states to be building this
11 capacity.
12 MS. BASHINSKI: I would like to make a comment on
13 what it's restricted to. I agree there should be some
14 restrictions. If we restrict it only to the currently
15 recognized or acknowledged CODIS loci, that would prohibit
16 any development of other loci which are valuable for
17 identification purposes. I would argue, for example, that
18 many people will be using YSTRs or mitochondrial DNA, or
19 what not. As long as those loci are specifically for and
20 used only for personal identification, it ought to be
21 expansive enough to allow that sort of research to be done
22 on those loci.
23 MS. FORMAN: Why do you need those databases to do
24 the research on those loci?
25 MR. CROW: I didn't understand that.
1 MR. SCHECK: The question is, why do you need
2 those databases to do the research on these loci?
3 MS. BASHINSKI: My comment is that you have a
4 large number of samples which are there and which, contrary
5 to our previous discussion, Lisa, are sometimes very
6 difficult to come by otherwise.
7 Those 36 or whatever number of states that do have
8 restrictions use a phrase similar to what I articulated,
9 that whatever loci they use, and they are not restricted to
10 using only the CODIS loci, but they are restricted to using
11 loci that are for, and solely for, law enforcement
12 identification purposes.
13 I think to craft it this narrowly prevents you
14 from being able to use other loci, and I don't think that is
15 what we want to do.
16 DR. REILLY: To me that would fall under
17 operational research. I don't associate that with
18 behavioral investigation.
19 MR. THOMA: That does refine it a little bit.
20 MS. BASHINSKI: You need a phrase.
21 MR. ASPLEN: It would be for either current or
22 potential future CODIS loci?
23 DR. REILLY: Research into efficiency of
24 identification for CODIS use.
25 MS. BASHINSKI: It doesn't have to be CODIS, which
1 is the national system.
2 MR. SCHECK: I think you should limit it to
3 forensic identification.
4 MS. BASHINSKI: The term is identification,
5 however you modify it.
6 MR. KAYE: It may be helpful here to allude again
7 to the 1994 Act and the restrictions that are placed on the
8 FBI under the heading of the Act "Privacy Protection
9 Standards." The exception reads as follows: "If personally
10 identifiable information is removed, test results may be
11 disclosed for a population statistics database, for
12 identification research, and protocol development purposes,
13 or for quality control purposes."
14 I don't know if that captures what you want. But
15 clearly, I think, attention has to be given to reworking
16 this paragraph and thinking about whether one wants to
17 include a phrase like "you advocate for stringent
18 restrictions allowed and that the research be limited."
19 Does stringent restrictions mean in addition to that
20 limitation by virtue of the conjunction?
21 MR. SCHECK: I remember when that was put in. It
22 was put in for the purposes of embracing just what we are
23 talking about.
24 For drafting purposes, when you talk about
25 population -- what was the exact phrase, David?
1 MR. KAYE: This Act refers to a population
2 statistics database.
3 MR. SCHECK: A population statistics database
4 could be. That is probably within the law, and it would
5 embrace some of the things Phil is saying we should keep
6 out. That's not what was intended when they put it in
7 there, but they were thinking about Hardy Weinberg and all
8 these crazy variations.
9 Nobody was seriously suggesting that it be put in
10 there for population studies to study dopamine receptors or
11 anything else. If we don't want that, we could probably do
12 a little bit better at drafting it.
13 MS. BASHINSKI: Are the population studies
14 restricted to those markers of value for identification?
15 MR. KAYE: Not explicitly. Remember the way it's
16 phrased: identification test results may be disclosed for a
17 population. This is not talking about the samples, which is
18 a big gap in much of the legislation that has been written
19 by the states as well. It includes limitations on the use
20 of the records but not on the samples explicitly. The
21 Massachusetts Supreme Judicial Court interpreted that to
22 mean that you can't use the samples at all, and you can only
23 use the records for these things.
24 This is sort of a lawyer's issue, but I guess the
25 point as to exactly how to draft this, maybe Chris and I can
1 talk more about this phrase.
2 Let me offer one other observation that arose at a
3 conference this summer. The International Congress on
4 Forensic Human Genetics had a talk from a behavioral
5 geneticist, a psychiatrist doing research into behavior. I
6 asked her, would you want any of these criminal databases
7 for your research?
8 Her answer was, no, what possible use could they
9 be to me?
10 I said, well, what about drivers and maybe
11 alcoholism?
12 Anyway, her answer was, well, God, I'd have to
13 have an awfully enormous database to get any useful
14 information out of this. I want family studies.
15 So I think we may be at the current time
16 exaggerating the demand that exists. That doesn't mean one
17 shouldn't have a prophylactic rule and one shouldn't think
18 ten years from now the situation will change. If we talk
19 about a universal database, then the value of that material
20 becomes much greater.
21 DR. REILLY: I think in many respects you are
22 correct. There is not that much behavioral and genetics
23 research being done in areas that would make use of these
24 populations. Family studies are more powerful. That is not
25 where I am coming from. I am very much coming from the
1 notion of protective resolution.
2 One of the few things I've learned in life is
3 perception is reality. If 85 percent of the American
4 people, which they currently do, think that genetic
5 information can be used against them, if that mentality
6 flows into a public criticism of this kind of operation, we
7 are going to be in trouble as we go forward to serve justice
8 in all its manifold ways.
9 This is definitely a protective act on my part.
10 It's not because I believe there is that much research out
11 there. I think five years is a short term. It will take
12 more than five years for good genotype/phenotype research to
13 be done in other populations to catch up to this anyway. We
14 are not harming the future of scientific progress at all by
15 putting a five-year hold on this.
16 CHIEF JUSTICE ABRAHAMSON: I gather from the
17 discussion that at least some would like A to be conditioned
18 on B and C so that there is a tighter joinder there rather
19 than three separate paragraphs.
20 Two, it's not the conclusion of five years but
21 within the five-year period that there should be a
22 reconsideration.
23 Somehow convey the thought that we would like the
24 Attorney General's office to advocate strongly, recognizing
25 that her position with the states is only as an advocate.
1 That's B.
2 On C, that it not be limited to validation
3 studies, that at least look at the language of the 1994 Act
4 for use of similar language, and that it would relate to the
5 samples, not merely the records.
6 MR. CROW: The important protection to me seems to
7 be that you prevent the possibility of subdividing this
8 database by cause or by crime. I can't see a great deal of
9 social harm in looking at the whole database with strict
10 anonymity.
11 DR. REILLY: I agree. Nor can I see a great deal
12 of interest by behavioral scientists.
13 MR. CROW: I don't think anybody cares for this
14 information. That is not how I would do research on
15 behavior genetics.
16 CHIEF JUSTICE ABRAHAMSON: I also gather that we
17 are proceeding along with a retention recommendation and
18 sending me to Reno to explain, to Eisenberg and others, that
19 we are going to do that.
20 MR. CROW: You'd better go anyway, Judge.
21 [Laughter.]
22 CHIEF JUSTICE ABRAHAMSON: Right.
23 Chris is going to try and rework this and see if
24 we can get another draft before the end of the day.
25 MR. ASPLEN: With David's assistance.
1 CHIEF JUSTICE ABRAHAMSON: Yes.
2 Barry.
3 MR. SCHECK: I have a drafting suggestion, and
4 that is that with respect to the first paragraph, the first
5 sentence says there is a recommendation, given the early
6 stages of development, that the samples be retained for the
7 next five years, or that the issue be visited within
8 the next five years.
9 I would also like to see the Commission say, on
10 the other hand, to allay privacy concerns about the misuse
11 of the samples, that we do not in principle favor indefinite
12 retention of these samples, and that when the issue is
13 revisited within whatever the appropriate period is, that
14 the burden of proof is on those who say they need them to
15 justify continued retention of the samples for whatever
16 period.
17 I think that is an important principle. Just to
18 say we will revisit it in five years is not giving any real
19 thrust to it.
20 I am thoroughly unimpressed with the technical
21 arguments for retention, and they have gotten much weaker
22 since Dr. Crow's committee has hardened its view from our
23 earlier discussions of this, that we have STRs with us for
24 ten to 15 years, and that the likely new technologies to
25 come on board can be run in tandem with that system, and
1 that is the way the technology is going to develop.
2 If you recall our earlier discussions of this,
3 people are coming here and making an argument that I would
4 take seriously if it were true, and that is that, well,
5 there is going to be something new happening within the next
6 three years where we are going to have to throw out the STR
7 system and go to something new completely and retype
8 everything, which is not what we see happening in the
9 future.
10 All I am saying is that we should make a
11 principled statement that the presumption is against
12 indefinite retention of these samples, and the burden is
13 going to shift to them when we revisit this question to
14 justify it.
15 CHIEF JUSTICE ABRAHAMSON: Woody.
16 MR. CLARKE: How about just the opposite.
17 Actually, from all the presentations that we did receive, my
18 impression is exactly the opposite from Barry's, that in
19 reality the sample retention becomes extremely important
20 during this time period as a result of the possibility of
21 new technologies. Unfortunately, if I can remember the
22 expression, those who forget history are condemned to repeat
23 it. We've already seen it happen once in the relative short
24 period of DNA typing.
25 I have no objection to the matter being revisited.
1 That doesn't trouble me at all. I am troubled by a
2 statement that says "should be retained for the next five
3 years" as opposed to "should be retained" and a welcome to
4 revisit the issue. That doesn't bother me.
5 I think when there is a time period placed on the
6 retention period, that lends some credence or at least
7 conveys to me that we feel as a Commission that samples
8 should be retained five years, as Barry put it, unless there
9 is something shown to the contrary. I don't think that is
10 the sentiment or furthermore what we heard from the majority
11 of presenters to the Commission at our various meetings on
12 the issue of sample retention.
13 So I feel strongly that the recommendation should
14 be made "samples should be retained." Again, I have no
15 objection and I think it would be appropriate to leave an
16 opening for the matter to be revisited even if were to be
17 within five years.
18 I don't think there should be any burden on anyone
19 to show one way or the other. Thus far, I think the
20 evidence has shown quite dramatically why they should be
21 retained. The last paragraph on the first page of the
22 working draft that refers to the technological change
23 possibility in my view is the overarching reason, at least
24 from what we have been presented, why these samples should
25 be retained, and I would emphasize it much more in the
1 draft.
2 MR. SCHECK: I agree. That's the best reason, the
3 technology change.
4 CHIEF JUSTICE ABRAHAMSON: I think you have a
5 dispute on your hands as to which way the presumption should
6 go. I suppose if you said anything, it is that there is
7 significant disagreement about that. But maybe I'm
8 misreading the group.
9 MR. SMITH: Isn't the end result of our
10 disagreements about this that we don't want to recommend to
11 the Attorney General that she advocate either the retention
12 or the destruction of samples in the near term, that we do
13 think that she ought to see to a formal revisit of the
14 question of whether she should do that within five years?
15 I don't think we could agree on what the Attorney
16 General ought to say to each and every one of the 50 states
17 about how they should handle this question.
18 CHIEF JUSTICE ABRAHAMSON: This says for five
19 years. You don't object to that.
20 MR. SMITH: I'm not so sure. I'm pretty sure I
21 don't want to say that the Attorney General should advocate
22 to the 50 states that they all adopt a policy of retention
23 for the next five years and that they do it now. That is
24 not the case as it stands.
25 MS. BASHINSKI: What states don't retain them?
1 MR. SMITH: Wisconsin. At least the advocates for
2 retention tell me that we are the only state that provides
3 for destruction. If that's the case, I'm not too sure why
4 I'm suggesting the Attorney General advise us to change our
5 policy.
6 MR. ASPLEN: Would you be comfortable with making
7 that exception to that?
8 MR. SMITH: The question really is whether or not
9 there is an agenda to be advanced by the Attorney General
10 for retention. That's the way the thing is drafted now. If
11 that's the case, then that is what this is trying to do. I
12 thought what this was trying to do was to say we are not
13 suggesting to the Attorney General that she ought to press a
14 policy upon the states with respect to this question now but
15 she will revisit it within five years.
16 The clear majority of states are retaining, right?
17 CHIEF JUSTICE ABRAHAMSON: You would think there
18 would just be a statement here that the states vary, that
19 most states retain samples, that this should be examined
20 within five years to determine on retention.
21 MS. BASHINSKI: Or maybe even with one exception
22 the states currently retain.
23 MR. SMITH: I think that is right. There is an
24 interest that could be advanced.
25 MS. BASHINSKI: I'm thinking we make it clear what
1 the current status is and then say it's an issue that we
2 advocate should be revisited, but at the present time the
3 status quo is just fine, given these two additional caveats.
4 MR. FERRARA: If you want to build consensus, this
5 is the closest you are going to get. If there is anything
6 that goes beyond what Barry suggests, I'm not going to go
7 along with it. Looking at it again in five years, that's
8 fine. Let's look at it in five years when we have got more
9 experience.
10 One of the reasons why I'm so against it is I've
11 got the experience to know why we don't want to get rid of
12 those samples. Regardless of what Barry thinks, in actual
13 practice you don't want to get rid of those samples if you
14 want to assure quality of the work that is being done. I
15 can't tell you how many times we are going back to the
16 laboratory, to the original samples, and we are making a lot
17 of hits, but we are not making one mistake.
18 MR. ASPLEN: Are you comfortable with the approach
19 that Michael takes, which doesn't necessarily advocate for
20 the indefinite retention, doesn't advocate one way or the
21 other, but simply deals with the revisiting issue?
22 MR. FERRARA: Yes. This is fine like it is.
23 MR. THOMA: Can I just bring up a point following
24 up on Michael? I think if what we do is advocate visiting
25 it within the next five years, we are talking about a time
1 period where we might have a better feel for whether STRs
2 are going to continue or not. I think if we leave out
3 advocating a policy of retention and leaving that to the
4 states -- for example, California, as David alluded to, has
5 specific examples of samples that don't continue to be
6 retained, those exclusions, and that would certainly not be
7 put in here.
8 If you put in every exclusion in every state, I'm
9 not saying California is the only one. It's just the one I
10 know. Wisconsin has destruction. If you leave that out but
11 feel comfortable that within the next five years we should
12 continue to revisit it, then within that period come to a
13 more definite conclusion.
14 CHIEF JUSTICE ABRAHAMSON: It would be that states
15 vary as to retention and it can be which samples are
16 retained, that there is no agreement about years of
17 retention of samples here, and that this should be
18 reexamined within the next five years. Is that generally
19 agreeable?
20 Phil.
21 DR. REILLY: I just think we would be doing the
22 Attorney General a disservice if we did not also ensure that
23 in the first paragraph or perhaps even earlier we give her
24 the opportunity to state an awareness of the privacy issues.
25 The word "privacy" does not appear in the "therefore"
1 paragraphs. If you buy into my argument about the way the
2 American people will debate this, I think we would want to
3 reassure that she is aware of those issues.
4 MR. ASPLEN: Something to the effect of
5 engendering public trust in the system requires a continuous
6 analysis of the privacy concerns.
7 MR. SCHECK: And give consideration as to whether
8 indefinite retention is appropriate, given privacy
9 considerations. I don't mean to quarrel with Paul about
10 what would be in the short term appropriate or inappropriate
11 for quality assurance as the systems are put on line. I
12 think we all agree that that is a concern.
13 On the other hand, I think the whole point here is
14 that we are beginning to recognize that the one thing that
15 the DNA Identification Act of 1994 never reached -- and I
16 remember we debated this in NRC I -- is the big privacy
17 question of what do you do with the samples. What do you do
18 with the blood samples on the state level?
19 The legislation never addressed it. The issue is
20 left to the states. The states have not, frankly, given
21 altogether serious consideration to it until now.
22 Although there is indeed a major federal interest
23 here, what you have to recognize is that, notwithstanding
24 what CODIS wants to do and what the federal government says
25 as to how they restrict the operation of the federal
1 database and the information, a state now is free to do
2 whatever the hell it wants in terms of collecting samples
3 from any number of groups. You can have a hodge-podge
4 system here with some states taking a much different view of
5 the privacy problems than others. On the face of the
6 legislation, that is already the case.
7 Constitutionally speaking, I think you could
8 legislate on a federal level some of these issues. I'm not
9 suggesting right now it's the smart thing to do, but you
10 could under the spending power and even arguably to protect
11 privacy purposes.
12 Pursuant to section 5 of the Fourteenth Amendment,
13 there is an argument for a uniform federal system. Indeed
14 the beauty of CODIS when it was first put into place was
15 that the privacy restrictions on the use of the data were
16 very, very strict. I think we would all agree that if it
17 weren't that way in the first instance, then the whole
18 expansion of DNA data banks would be much more difficult
19 than it is right now.
20 MR. CLARKE: Procedurally, do we have the luxury
21 of an opportunity to evaluate a rewrite?
22 MR. ASPLEN: I have just asked David to take a
23 stab right now at paragraph number 2. I'm going to redraft
24 1 and 3 as we eat lunch and do other things. My goal is
25 that we come back with the major issues fleshed out. I
1 think we can take a vote for approval purposes conceptually
2 and then clean it up on any minor details that can then be
3 sent out, and we can forward it up.
4 Remember that that is the goal. The reason that I
5 suggest that is because we did receive the letter from the
6 Attorney General a while ago, and we were asked to approach
7 this in a relatively expeditious fashion.
8 CHIEF JUSTICE ABRAHAMSON: Anything further to
9 comment on?
10 Jan.
11 MS. BASHINSKI: One very small comment. With
12 regard to retention, I just want to make the comment that we
13 don't want to imply that this group is united on the issue
14 of retention being a major problem. Our statement should
15 not reflect that we think the samples shouldn't be retained
16 either. A balanced statement.
17 CHIEF JUSTICE ABRAHAMSON: As always, balanced. I
18 think that became clear in the discussion, but thanks for
19 reminding us.
20 Lunch is in the back of the room, I believe. We
21 have a working lunch. We are going to hear from Howard
22 Matthews and Angela Flower, our guests from England. Then
23 at 2:30, Ron, you're on.
24 [Recess.]
25 MR. ASPLEN: As I mentioned yesterday, we have
1 with us today Howard Matthews and Angela Flower from the
2 Criminal Cases Review Commission. The reason they are here
3 is because when Lisa and I were in England in October
4 someone suggested to me that I should in fact go to
5 Birmingham, stay an extra day -- twist my arm -- and speak
6 to these folks, who were essentially doing the kinds of work
7 that we were talking about in our postconviction
8 publication.
9 To be clear, they go way beyond the scope of
10 exonerations based on DNA. I think you will find
11 fascinating the different applications that they use and the
12 scope of their mission and the kinds of cases that they look
13 at.
14 It was pretty clear that what I was hearing in
15 Birmingham you folks should hear also.
16 With that, I will turn it over to Howard Matthews.

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