DR. EISENBERG: Thank you very much, Chief Justice. I appreciate the opportunity to come before the commission and give you an update on the activities of the board -- the most recent activities and just sort of summarize for those commission members who do not have as much familiarity with the activities of the board over the past five years. So again, thank you very much for this opportunity.
First, I'd just like to give you -- show the current members of the DNA Advisory Board -- and as Chief Justice mentioned, both herself and Paul Ferrara serve on not only this commission but also the DNA Advisory Board.

And most importantly, I think that the board owes a tremendous -- the country owes a tremendous debt of gratitude to Dr. Joshua Lederberg, who was the initial chair who really laid the foundation and the groundwork for how the board conducted its activities, and I just inherited his legacy

.
Again, just brief history. The DNA Advisory Board was authorized by the DNA Identification Act of 1994. It was established in March of 1995 and was given a defined life period of five years, and at the request of the board, the director of the FBI actually continued the life of the board until the end of this year 2000, so on December 31 of 2000 the board will be disbanded

. This was an extension originally. The board was supposed to disband approximately one month ago. Again, the scope of the activity was to develop and appropriatelyperiodically revise recommended standards for quality assurance, including standards for testing the proficiency of forensic laboratories and forensic analysts in all aspects of DNA

. And again, the citations to the act are shown here.
The board's scope of activity specifically was actually amended to include statistical and population genetic issues affecting the evaluation of the frequency of occurrence of DNA profiles calculated from pertinent population databases

. And again, this was really at the request at the first board meeting. Under Dr. Lederberg it became clear that we felt the intent of the act was for the board to look into these activities, since several members of the board specified for the act were population geneticists and bio-statisticians.
And again, to recommend these standards for acceptance of DNA profiles into the FBI's CODIS database, which take account of the relevant privacy, law enforcement, and technical issues. And again, the privacy issues were expanded and incorporated into the board's bylaws and is now in the charter

.
So at the very first meeting, the board reviewed the House Judiciary Committee report on the DNA Identification Act, and as a result, recommended an expansion of these board's activities to specifically include the statistics and the privacy issues. So very early on in the life of the board it became clear that these were areas that the board needed to become familiarized with and make appropriate recommendations.
And as such, these were incorporated into the board's bylaws by the director of the FBI very early on in the life of the board, and was also, through the granting of the extension, became part of the charter by the director of the FBI

.
One of the very first documents -- official documents that came out of the board were based upon the recommendations to the director of the FBI concerning quality assurance standards for forensic DNA testing laboratories

. And I had commented to Chris that in the last document that you are looking at, one of the statements was to the effect that laboratories are following the
recommendations of the DNA Advisory Board.
In fact, those are now the director's standards, and I think should be referred to as such. The
recommendations were from the DNA Advisory Board but upon review by the director of the FBI, he in fact signed them into law, so they are the director's standards.
JUSTICE ABRAHAMSON: If I can interrupt, that's paragraph five on page 2. "If the laboratory orders testing, it shall select a laboratory that meets the standards of the DNA Board." Dr. Eisenberg is suggestingthat we change that to the director of the FBI, and thank you.
DR. EISENBERG: Thank you. And again, these standards became effective on October 1, 1998. There were some timely issues involved here. One of the areas of concern to the forensic community was issues referring to the technical manager-technical leader role. One of the areas of concern were that there were many people in the field that perhaps did not meet the educational requirements, yet had the necessary experience and background and had learned the material and perhaps should be grandfathered in after their credentials were reviewed. In fact, ASCLD lab set up a credential review committee to do such an act.
But the period was specified from two years from the enactment of the standards by the director of the FBI, so all individuals who wished to be grandfathered in need to have all their materials submitted and reviewed prior to October of 2000.
The next document that was issued by the director of the FBI was based upon recommendations of the DNA Advisory Board, referring to the quality assurance standards for convicted offenderDNA database and laboratories. Again, the scope is very similar in nature to those of casework samples, but specific areas relating to the types of samples encountered in the convicted sample; typically, more pristine blood samples. There were some references to robotics and the type of personnel required to handle these samples, perhaps their training did not need to be as extensive as those involved in casework analysis. So in fact there are a separate set of standards
that were recommended and approved, and they became enacted by the director of the FBI, effective April 1, 1999

.
In both of these standards there were mechanisms for revisions of change. Again, because of the fact that the DNA Board's life was defined as limited and will terminate, that there had to be provisions for recommendations to be made to the director of the FBI in the event that things would change or that the standards needed to be modified. And again, this responsibility was put upon the Scientific Working Group on DNA Analysis Methods, referred to as SWGDAM, and that this group would then make recommendations of revisions as necessary to the director of the FBI

.
Again, one of the areas that were included in the charter of the bylaws of the DNA Advisory Board were to examine the statistical and population genetic issues affecting the evaluation of the frequency of occurrence of DNA profiles. And again, that refers to the document that was provided to the commission. A subcommittee was set up from the DNA Advisory Board.
The subcommittee to address these issues was comprised of Dr. Bruce Budowle, Dr. Chakroborty, Dr. Bernie Devlin [phonetic], and Dr. Fred Bieber. And those four individuals were responsible for making recommendations to the board to review in terms of any question relating to the statistical interpretation that perhaps still troubled members of the forensic community and the legal system that was encountered in casework.
Very early on, the board under the direction of Dr. Lederberg -- a motion was passed strongly endorsing the NRC to report, headed by Dr. Crow, in terms of the evaluation of forensic DNA evidence. The board felt that the NRC II really went a tremendous way towards answering questions and concerns that the forensic community had in regard to statistical evaluations of forensic evidence.
There still seemed to be some areas that perhaps the forensic community still wrestled with, and the scope of activity of this subcommittee was to try and clarify issues related to source attribution, relatives, mixtures, and database searches. And again, the document that has been
distributed to you was forwarded on this month to the director of the FBI for his review

.
And Dr. Budowle is here, and I would like to ask that if there are any questions specifically related to any of the material contained within this document, I strongly suggest that he would be the best person to direct those to and he would be more than happy to answer any questions about that.
Again, because of the scope of activity of the DNA Advisory Board, it felt that these would be worthy issues to try and address, and I think that this statement here really summarizes the feelings of the DNA Advisory Board, that the board recognizes that there are different approaches such as random match probability, probability of exclusion, likelihood ratios. That any one of these can be applied, but the key is that one must really be very specific as to what is the question that you're asking, what is the answer to that specific question; that there are many different answers to many different questions and when you frame a question in a legal setting in the court, you must be very specific as to what the question is and then give the appropriateanswer to that question

.
Again, one of the four areas was source attribution, and again, inferences should be based on the
facts of the particular case and that the calculations done usually employ general or appropriate reference populations. And again, any questions related to any of the statistical interpretations are provided in the document

.
Again, questions specifically to be addressed in terms of the possibility of a close relative of the accused being in the pool of potential contributors, again, this should be done -- the board felt that these types of issues should be looked at in a case by case basis. If there was absolutely no reason to believe that a relative of the accused be part of the pool of potential suspects, then
perhaps there is no reason to consider relatives in the calculations

.
Again, the board recognizes that there are numbers of ways of dealing with calculations based upon mixtures, but there are certain things that one can actually avail themselves, based upon the sample analysis, that often based upon intensities one can actually take a look at a mixture and assign which pairs of alleles come from a particular contributor, as opposed to other alleles found coming from another potential source

.
Again, one of the issues dealt with in the NRC II report referred to searches of databases, and again, two questions arise: what is the rarity of the DNA profile, again, looking at the random match probability versus what is the probability of finding such a DNA profile in a database search? Again, there have been some discussions of this issue in the literature, and again, based upon review of the subcommittee, the committee strongly endorses the recommendations of NRC II that in fact the size of the database must be included in the consideration of the second question

.
What are some of the remaining issues that the board is dealing with? Well, one of the major issues that we have before us is a review of an order document that's being prepared by the FBI. This order document is not being prepared in a vacuum. In fact, the FBI has solicited input from both state and local forensic laboratories, and the document is being used by the FBI to audit those laboratories participating in NDIS, the National DNA Indexing System. But more what the FBI would like to see happen -- and I think most forensic labs are in agreement -- is that a forensic laboratory undergoes many audits and many cases where they are being asked to be accredited by other ASCLD, ASCLD lab, or other organizations that provide that type of service. And I think the consensus among the community is that if a single document could be put together that could be utilized by as many of these groups doing audits and/or inspections, accreditations, that would go a long way to trying to simplify the process, perhaps make the process much more cost-effective to laboratories.
The accreditation process through ASCLD lab is an extremely expensive process, certainly for the larger laboratory systems. Those processes take place every five years. Laboratories have to undergo external audits every two years, and now when you throw in the audits that are required by the act for those labs participating in CODIS, if this whole procedure can be simplified then I think the community as a whole would benefit.
So I think that's the background behind the creation of this audit document by the FBI, and again, this was -- a draft of it was made available at the last DAB meeting. A period of time was given for additional comments from other laboratories who are interested in reviewing it, and hopefully, by the next board meeting a consensus could be brought together where the board can examine this audit document again to make sure that it actively portrays the feelings of the board in terms of what the thinking that went in behind the creation of the standards

.
So again, this audit document will be used by the FBI for the NDIS audits, and hopefully would be available for use by other accrediting certifying bodies. And it's my understanding that ASCLD and perhaps other groups are closely working with the FBI to accomplish this goal.
And finally, one of the remaining issues is that related to the privacy issues to determine if the existing laws that -- are they sufficient to alleviate concerns? Certainly within the DNA act itself, there are many specific statements made in terms of access to both the data and the samples.
During the course of the last two meetings, we've had some presentations by the ethicist Dr. Youngst on the committee. Dawn Herkingham [phonetic] has put together a summary of the existing state laws related to concerns of the samples related to the convicted offender samples.
There will be other presentations at the next meeting by other people involved in this area, and hopefully within the next one or two meetings, the board will have sufficient material to conclude its charge in this regard

.
So again, in terms of the remaining activities of the board, the intent is perhaps to have no more than one or two more meetings before the December 31 termination date. I think the two major issues left on the table for review by the board are those concerning the audit document.
In fact, hopefully the board can review this and come to a consensus that it actively conveys the standards that the FBI director has put into effect related to not only those labs participating in NDIS, but hopefully it will go a long way to simplifying the audit and certification-accreditation of laboratories, and then finally, to -- whether or not the language of the act itself provides enough sufficient rigidity to control, regulate the access to not only the data but those samples that are being collected

.
So if there are any other questions, I'd be more than happy to address them.
MR. ASPLEN: Dr. Eisenberg, tomorrow afternoon we're going to -- the commission's going to have a discussion, looking as the commission phases out and as the DAB phases out, the commission is going to be looking at the recommendations regarding how are these issues addressed in the future, such as privacy -- not just standard recommendations for privacy considerations and technology issues.
I guess my first question is currently the DAB and the DAB's consideration of privacy issues, is that in the context of quality assurance-quality control standards, or do you view that the DAB's considerations of privacy concerns extend beyond that? And then the next question would be with the expiration of the DAB, where do you see it going? How do you see those concerns being addressed?
DR. EISENBERG: Well, in answer to the first part of the question I think the way the board has interpreted the act itself is that part of the scope of the activity of the board was to make a determination if in fact there was enough provision put into the act itself that regulates the control of these samples.
Now, there's certain language in the act that certainly the FBI has interpreted that any violations of that would prohibit states from participating in NDIS. That is if states allowed more access to samples, the data and/or the samples, then what was specified in the act itself, that that would be perhaps sufficient to terminate their involvement in NDIS. That is one thing.
They also -- the act itself appears to make the statement that if laboratories -- if state-local laboratories who participating in NDIS did not do so in context of the act itself, then they would no longer be eligible to grant funding, so that any potential grants would not be available to them.
Also, there is memorandum of understanding that each state, each laboratory that participates in NDIS is required to sign again indicating that they would be in compliance with the law of theDNA Identification Act itself, which limits -- identifies certain categories of individuals and limits the scope of use of those samples. And again, from presentations -- and we could makethis available to the board -- we have another Power Point presentation that Dawn had put together. For time purposes, perhaps, we won't go through it but make the document available.
It appears that in the examination that there are a number of states which appear to permit more access than what was specified in the DNA Act, four states that have no specific provisions in terms of access, six states that permit access to the population statistics database, again, with no identifying information for third parties, whichdoesn't seem to be specified in the act, three states that permit access for humanitarian purposes, one state that permits access to determine whether there is a parent-child relationship, and finally, one state that permits access to a public official if needed as part of the official's official duties.
So in total there are approximately 17 states which appear to be more liberal than what was specified in the act itself, so the question before the board is perhaps what are -- what needs to be done about that in terms of whether or not those states should be allowed to continue their participation in the NDIS program. Again, these are discussions that are still under consideration.
As far as what needs to be done after the board is disbanded, and again, we have not come to a point where that discussion has been brought up. Certainly, hopefully we can make some recommendation to the director of the FBI in this regard in terms of at least the activity of those states in their participation in NDIS.
The act seems fairly clear that for a state's involvement in the National DNA Indexing Systems, they must comply with the DNA Identification Act and the standards put forth by the director of the FBI, and if they're not willing to do that or if they're not doing that, perhaps then their activity in terms of participation may be curtailed.
So again, that is, at this point, the only discussions or the only things that have been brought up at the meetings, and hopefully, over the next one or two meetings, we can come to some resolution on that regard.
MR. ASPLEN: Thank you.
DR. EISENBERG: You're welcome.
MR. HILLARD: Dr. Eisenberg, did you address the problem -- did you have a discussion about accreditation? I notice in some of my -- one of my handouts they stated that only five out of ten laboratories are accredited. Did you address that?
DR. EISENBERG: Absolutely, sir. At one of the very first meetings of the board, the board statement was that in order to demonstrate compliance with the standards, accreditation is the one and only method that a laboratory needs to demonstrate, and that the fact is that rather than
specifying a time period, the board recommended that every laboratory should work towards the goal of being accredited as fast humanly possible.
Again, there was no date specified, no period of two years, three years. Again, depending upon the laboratory's system, each laboratory's system may have its own speed at which that needs to take place. But accreditation is something that every laboratory needs to be, and they need to be accredited as fast as humanly possible.
JUSTICE ABRAHAMSON: Are there any other questions or comments for Dr. Eisenberg?
DR. SMITH: Thank you very much.
(Pause.)
JUSTICE ABRAHAMSON: We are open now to public comment. We're opening up the public comment for Dr. Smith.
(Pause.)
JUSTICE ABRAHAMSON: While Dr. Smith is getting set up, we want to welcome Professor Michael Smith and Superintendent Kennard, who just came in.
DR. SMITH: Bear with me one second.
(Pause.)

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