DR. SMITH: Okay. So you know -- and I'm very grateful for the opportunity to address the commission. I am the manager of the DNA Analysis Unit for the FBI laboratory. We have two units up there. I actually just manage one, DNA 1, and it's the unit that involves mainly with nuclear DNA testing and serology.
And I'm here today, though it looks like I'm here by myself, I'm actually here representing those individuals up there. These are the examiners of the unit, and some of those names you may recognize because they've been in the field for a very long time, pretty much from the beginning in some instances.
I've been doing DNA working in this field for ten years, and I come today to address the draft of the Research and Development Committee, which we have seen, and I come also to say that I have the utmost respect for members of that working group, especially Dr. Crow, and that I hope my comments are taken today -- I would like you to see me as a consumer of that report.
When I looked at the report -- I did get to see a draft -- I noticed that the mission was written in the beginning, so this group which was formed in November of '97 -- one of the tasks was to predict where the technology would be in five to ten years. And their objective was not to attempt to influence that, but rather to look into a crystal ball and see what was going to happen, and it should be useful for planning purposes.
Well obviously, as a manager, that's what I mean. I'm a customer of this report. How is this going to help me do my job and the people that work with me do a better job using this very valuable technology that we have? So I actually looked to this report and hoped to get some good ideas from that.
So we're looking for future improvements, and I'm here to tell you as a manager, this is what I need, advice on how to make the DNA technology faster, how to make it cheaper. It's incredibly expensive, and I know this commission has looked at the cost of forensic DNA technology, and it is almost frightening because it may be so expensive that we may not be able to offer this in all cases, and that would be a shame.
And finally easier -- cheaper and easier and faster, those are the three areas that I need assistance in. These are the three areas that I hoped this report would address. So when I was able to get hold of the draft report through one of my sources, I was happy to see that there were some technology projections, and that was a good thing. Where would we be in five years or ten years?
The report talks about new genetic markers and what are some of the possibilities with these markers. It also talked about new technologies, for example, chips mass spectrometry. Now, those are the things I was hoping to get from this report. And then it also said something about
statistics, and that raised a red flag for me, and I'd like to spend the next few minutes talking about that aspect of this report.
First of all, if you will recall in 1992 there was something called -- we fondly call the NRC I, and that report which was issued by the National Academy of Science created a bit of a stir in our community. Though it said the methods were reliable and it made some sort of general statements that a three to five -- and in this case they were talking about RFLP match was rare --it came up with something called the ceiling principle, and though I think the members of that committee were well intended when they came up with this ceiling principle, it was a setback for
forensic DNA analysis.
And by a setback, I mean in the courts suddenly examiners were called for admissibility testimonies in which we had to debate these statistical issues, and it was a drain on time and resources. Despite that, we did it and we were successful, but I think what really helped us recoup from this first report was something that came out in 1996, of which many of you are familiar with, and that was this second report.
And I say it helped us because it validated much of what we were doing, many of the technologies we were doing. It took a very serious look at all the information that had been generated by different research groups and it addressed things like reporting the actual frequency. Don't hide from the fact if you have a very informative profile that you report that. Don't put ceilings on your results. Report the actual numbers. And as our technologies were getting more powerful we could do that. We could report more powerful findings.
It gave alternative approaches to getting these numbers, and I think that's the biggest value of this
report. It says there are different ways to skin the statistical cat. It gives you some ability to look at what's happening in the case and decide which approach – kind of what Artie was talking about. Which question are we called to answer today?
It addressed how to do and how to address issues with database searches, and that was obviously going to be important as we developed the CODIS System and began to use that system. Thankfully, it nixed the ceiling principle, and I think that brought a lot of relief to our community. Though we had convinced many judges and many courts to do that, it put a final nail in that coffin.
And it also did something that I think many of us who were beginning to use this tool and recognizing the power of it -- it suggested that we might be able to actually walk into court and say, I've got so much information. I can identify the source of the stain. And as people, many of you who have worked in the field and seen it grow and gain power, this is really where we wanted to end up. This is why we look at DNA, because someday we hoped that we could use it to identify the source.
Just to remind you what the NRC II said, that profile might be said to be unique if it's so rare and it becomes unreasonable to suppose that a second person in population might have the same profile.
Now I'm going to focus a little on this, not so that you perhaps buy into the FBI approach, but you see something that I saw in this working group report that would cause potential problems for us if it's not addressed.
The trouble with the NRC II was it didn't tell us how to do this. It said it might be possible, but they gave us no solution. The FBI decided that they would come up with an approach, that we would use a calculation that would help determine competence that this person is the source with a reasonable degree of scientific certainty. We did not want to address uniqueness in the same sense, and this is something I thing that's been bantered about, and it's a bit of a confusion. We're really about source attribution, and that's what our policy does.
And basically it says that if this profile exceeds the likelihood of one out of 260 billion, that we would call our identify statement. In other words, we would attribute this individual as the source of the stain.
Now, addressing some of the comments made in the research and development report, this statement was one that I read, and it says that the FBI assumes that this probability is substantially less than the reciprocal of the United States population. The profiles is defined as
unique, so that's not really what we're doing, and again, I draw this to your attention not to say whether we're right or wrong, but just to say this is an issue that I saw on this report, and this is a danger when this committee starts walking back into this statistics.
And it goes further to say there's been considerable criticism of this in the published literature, and I guess I would take slight disagreement with this, because they only quote two papers, Evett & Weir and Balding. They sort of lump in the DAB here, and that's not true as what you heard from Dr. Eisenberg, the DAB does not in fact criticize what we're doing.
In fact, the Balding article doesn't criticize. If you look at the Balding article and read it, it addresses using this type of approach for source attribution. Not uniqueness, but source attribution.
I'd like to take just one moment to look at something that Dr. Weir said later. I think there are arguments that can be made on an academic level, and then there are very practical issues at hand. I'd like to take you back to a paper that Dr. Weir wrote after a practical experience that he had in court. This was after the O.J. Simpson case. An article was written by Dr. Weir in 1995.
And when I read this, it sounds like he in fact is supporting what our identity statement is doing, that if you look at a lot of loci, that at some point in time it's going to be so rare that you can attribute this. Of course, we're not trying to usurp the role of the jury or anything like that; we're just trying to talk about this profile and who might be the source.
He goes further, that he looks forward to the time when these profiles are of such extent and integrity they're recognized as being as probative as fingerprints. And he hopes for the presentation of these profiles without numerical statements. This was in 1995, after he'd been on
the battleground. Finally, to give you some idea of how large or small that number might be, he comes up in his paper with a number such as one in 57 billion. Ours is one in 260 billion.
So I -- again, I think this is the type of issue or this is the type of debate that we will find ourselves walking into if perhaps these things are not left alone.
The DAB has taken the time to address these issues, and Dr. Eisenberg has already gone through those. They have given additional fleshing out to these things such as source attribution, relatives, mixtures, database searches, and bottom line is they give some flexibility in there, as you just heard. And that's what we feel is very important. Let the statistics answer the question that is asked.
In the report -- this is another thing that concerns me a little bit -- it talks about how great the 13
core STR loci are, and that's what most labs are driving towards. But at the end of the statement, you'll see that in the near future it will be relatively easy to have 20 or more loci or the STR type.
Well, I'm here as a manager to tell you it is not easy to bring on a new system. As good as the systems are, you're talking about validation that takes years, so these 20 loci are not here, nor will they be here in the near future. Easier methods, I don't think so. We're already doing 13, and it also brings me back to NRC I and II, where they both said, in the future we'll be looking at more loci, and then -- and I keep wondering even if we did 20, would that ever be enough to satisfy all these arguments? I think we've satisfied it. Thirteen core loci, very powerful results.
So I want to take you back to my original point. As a consumer of this report, I hope that the report addresses such things as faster, cheaper, easier. If you read it as a commissioner, and if you look at it and it goes beyond that, if it begins to address issues that are statistical in nature,and if you have some doubt that this is really the report should be going, then I hope that you leave it out.
And that's all I have. Thank you. And thank you very much for the time.
JUSTICE ABRAHAMSON: How would you like that to read, since apparently I think you have an objection to this paragraph?
DR. SMITH: I think mostly I have an objection of walking to the statistics at all. I really think that -- when I read the report, I can see there are parts of the report that go towards education, and I do think that the education -- if that component is left in the report, you know, where they talk about what RFLP is or what STRs are, if they want to go into some kind of discussion of some of
the statistics and the difference between likelihood ratios, et cetera, that I don't have a problem with.
What I have a problem with are the statements that underline, We would prefer, or we would recommend, or in this particular case, in the near future it will be relatively easy to have 20 or more -- those are the things that scare me, because --
JUSTICE ABRAHAMSON: But look at the sentence above it. Once these get set up, they will be expensive to change.
DR. SMITH: Right.
JUSTICE ABRAHAMSON: It's a recognition you have13 now.
DR. SMITH: That's right.
JUSTICE ABRAHAMSON: Expensive to change, but probably in the future it is going to be easy to get 20, but not easy to change the database, so a change from 13 to 20 --
DR. SMITH: There won't be anything easy about it. That's correct.
JUSTICE ABRAHAMSON: I think that's what it says, so that's why I'm asking that kind of question. And if you were going to edit it, what would you do, take out --
DR. SMITH: I guess I would just leave it alone, is what I'm saying, because we cannot get anyone to say it's12 loci, it's 13 loci, it's ten loci, so to avoid numbers in general -- we are doing -- the community is doing the best it can with the 13. It's sometimes difficult to get everyone to do the 13.
So that's what I'm saying, avoid the numbers, the specifics in that sense, and I look to the DAB's treatment of it as a more general, broad-brush recommendation or approach.
JUDGE REINSTEIN: Isn't it true that it's likely that the 13 core STR loci will remain as the standard for some time?
DR. SMITH: In my heart, yes, it's true. I know how long it took us and I know how expensive it is, and right now we are not in a sense meeting the challenge of all the work we have to do because of the cost. So if the technology comes along that allows me to do 20 and it's cheaper, then I think we will consider it. If not, it's -- what I think the committee has done is very difficult, to look into the future, but 13 certainly seems to be satisfying what we need.
JUDGE REINSTEIN: Is the real objection to the last two sentences then, as opposed to everything that comes before it?
DR. SMITH: I'm sorry?
JUDGE REINSTEIN: Is the real objection as to the last two sentences, as opposed to everything else?
DR. SMITH: Yes, I guess. It's difficult, because when I look at that, again, I'm a little nervous about the whole concept of a specific number of 13 or something like that. Yes. I have no problem with the beginning of it. That's sort of where we are.
MR. KENNARD: How about if the one sentence were taken out right after 13 worked very well, the next sentence were struck and then leave the last sentence in, because you were saying there's a good possibility we will get to --
DR. SMITH: But I would say right now it is as good as fingerprinting, personally. When I walk into the court and I testify this individual is the source of this DNA, to me that's the same as -- if not better than a fingerprint in some instances because it's there, so I think that's the part that is at issue.
They're saying it will get better and eventually it will be as good as fingerprinting.
MR. KENNARD: And you're suggesting it's already better?
DR. SMITH: Oh, yes. I don't think any of those examiners whose names I put up there would go into court and testify that that individual's the source if that wasn't their opinion, so therefore, we say a fingerprint identifies an individual as having been there. And certainly with the DNA with the profiles we're seeing with the 13 loci, sometimes less than 13, we certainly have the confidence that that's as informative as a fingerprint.
JUSTICE ABRAHAMSON: Thank you. Dr. Budowle, are you leaving too?
DR. BUDOWLE: Hopefully.
JUSTICE ABRAHAMSON: Okay.
DR. BUDOWLE: I think the issue just the sensitivity of the statement. When you say it's easy to
have 20 or more loci, it implies that 20 or more loci are needed, so you have to be sensitive that when you put a statement in like this that you're not making another recommendation. If 13 loci are sufficient for most situations, then that has to be strengthened.
Technically it's possible to do 20 loci now. It's not an issue, so it's not going to be in the near future; we can do that today. But when you put statements in that fall in, they give implications of endorsement for something more and that becomes a debate. When someone says, I've done 13, that's enough. Well, if you do one and it's all you get, that's enough for that case.
If you can't get any more it applies some information. If you do five and that's all you get, it supplies information and that's all that you have, you use what are established approaches to imply or convey how common or rare something is.
But if 13 are the standard and that's what's being used and they seem to meet the situation well, if you put in a statement it's easy to have 20, there's going to be a lot of litigation over that for these people, and we're going to bog down something that may not be what you intend from your report. Your report is to predict what the future will be, and when you start bringing statements, you're starting to influence what the future should be.
JUSTICE ABRAHAMSON: Judge Reinstein?
JUDGE REINSTEIN: I agree with all this, because when you look at what happens in court, and we talk about fingerprints, whether it's the prosecutor's asking the question, defense attorney's asking the question, or fingerprint examiners answering the question, we still have different views on how many points of identification it takes, and it is very confusing to a jury and maybe for Jeff it's something that's helpful, but I still think that it is confusing, and I don't know that -- and I think most of the fingerprinting examiners that I've seen lately say, Well, we don't look for any particular number, but people press them into that, and sometimes prosecutors do the same thing.
DR. SMITH: I think practically speaking -- I can just tell you what's happened as we've testified across the country -- we've had over 40 of these testimonies and we can give the identity statement this individual's the source. We can give the number. There's only been one challengeto date, and that's in Norm's state, and he could discuss that.
But it's -- by and large, when you start talking about quadrillions or quintillions -- and that was what we were actually trying to avoid, giving a number that is so unbelievable that people start asking, What is aquintillion, so at some point you say, This is enough. We know that it is unique to you unless you have an identical twin. Guess what? We've looked at enough of it. We can
say that.
And where you draw that line in the sand, that may vary. We understand that from person to person. And I think Dr. Weir's mind varied from ours, so --
JUSTICE ABRAHAMSON: Mr. Thoma?
MR. THOMA: Thank you. Just very briefly though -- and I appreciate what Judge Reinstein brings up about fingerprinting -- there is a distinct difference between fingerprinting and DNA, and there's no question about that. Fingerprinting is unique, and granted, in a given case, you don't have the perfect fingerprint or the perfect analysis and it's left open to interpretation.
But statistical premises or theory or considering how the likelihood is is the distinct difference between unique, and that distinction and that difference is something that remains. With 13 loci certainly not very much, but in individual cases -- you can't say in every case you're not going to have some question of analysis of 13. Perhaps that's true. Maybe in 20 or 25 years of it, we'll have gone through so much with 13 loci that we know what you're saying to be true.
But with the short amount of time that we've been doing it and the relatively few cases that have come through with regard to STRs, I don't think you want to go out there and say, We don't want to go any further. We don't want to make any more advances. We've got the perfect situation
here. I think the California Supreme Court actually in Venegas [phonetic] made some good points regarding the FBI's procedures; that it's a very good laboratory, it's terrific
Sometimes there are -- there's a judgment regarding certain aspects of it, but the one aspect that I
don't want you to try to conclude is that, Hey, because we've made it here and because it's expensive to do something else, this is where it should remain.
This statement as it remains is clearly true. It will be -- and in fact, Dr. Budowle disagreed with you with regard to the statement -- in the near future it will be relatively easy to have 20 or more loci in the STR type. He thinks it will be -- he thinks it actually is occurring now, or can occur now. We're not saying that it would be easy to change it over; it's just easy to do.
So remember that there is a distinct difference still between fingerprinting, which is unique, and some statistical interpretation of what you believe in an individual case. That's my position. I know I've been a little longer than I was going to be, and I apologize for that, but I just needed some time.
JUSTICE ABRAHAMSON: Dr. Smith?
DR. SMITH: I just want to comment on a couple of things. First of all, something you have to look at is the arguments that are put in this report are not new, so it's not because we did 13 loci that now they're coming up with new arguments. In fact, the STR loci -- the same statistical tests have been applied to those that were applied to VNTRs, so the same conclusions in 1996 are true
today, so there's nothing new in what's being said. It's just really what's being advanced is one approach versus another.
So nothing has changed. The STRs have changed. We've done more loci, but there's nothing new about the use of STRs or the locations we're looking at. Nothing new. And if you read the report, it says that. So that's why I'm here asking why are we going through this in a sense.
Now, you may disagree with me that 13 is sufficient. Fine. And I'll let Bruce comment on the20. My retort to that is 20, believe me, is not commonly done or routinely done, and I think Bruce would certainly admit to that. So that's the big difference. Ask Dr. Ferrara how many -- 20? Do you do 20 on a routine basis? No.
DR. FERRARA: Do you do 13 on a routine basis? No.
DR. SMITH: So that's -- you need to read this report, because if you read the report and what's said, they're not plowing new ground by any means. They're rehashing old things that were already rehashed in 1996, and that's what I'm asking you. Read the report and look at it and see what is new about it, because it is not -- that's not where the future lies, in rehashing the old statistical arguments.
JUSTICE ABRAHAMSON: Dr. Budowle?
DR. BUDOWLE: Two things. One is your mission is to predict the future. It's not for you to decide whether it's to be stable or not. If the community believes it's to be stable, then that's the prediction for the future for you, not for you to make the choice of what it shall be. Twenty could be done. We could predict 50 -- are capable of doing, but the community believes that 13 is sufficient and that's what they hold to. That's your prediction. You can't make the decision for them. That's what they have to decide.
Second is with fingerprints -- I just spent the last week on the stand about fingerprints and uniqueness and all. These are not different issues. The challenges that occur on fingerprints and DNA are the same about whether you have a foundation. In fact the fingerprints are whether
there's a statistical foundation to support your assertion of uniqueness.
There are issues on the subjectivity and the objectivity of the interpretation. The same with DNA. We don't have any real distinction between then when you see the issues particular under the Daubert [phonetic] regime that we're under now, so I wouldn't try to say that because we believe it's unique that there's a distinction between it. In the legal setting we're seeing challenges that are being at least allowed.
I don't know if they're being embraced or not, but they are being allowed. We've already had two of these, and I predict we'll see more.
JUSTICE ABRAHAMSON: Thank you. Norm?
MR. GAHN: Dr. Smith, one of our handouts was this statistical and population genetic issues affecting the evaluation of the -- this is apparently from the DAB?
DR. SMITH: Yes.
MR. GAHN: What do you think of this? This then addresses the -- it appears to be the source attribution relatives. It also addresses database mixtures. What do you think about this document?
DR. SMITH: I find that document pretty much re-endorses what happened in 1996, and it fleshes out a few more issues. In other words, pretty much with mixtures it says you can take different approaches. Probability of exclusion is one, or likelihood ratio. It does not endorse
one over the other, and I think that's a critical thing that needs to be said, because otherwise I think you can be -- it can be used against you.
If you do one approach, you can say, No, this book says you need to do another, and this comes out more clearly and endorses different approaches for different questions. So I think this takes the time to look at that and the individuals chose those topics because those seem to be the ones where some issues still continued to arise in court.
MR. GAHN: In light of this report by the DNA Advisory Board, are you stating that you feel it would be inadvisable for our commission to proceed in statistic issues when they've been coveredyou believe satisfactorily by this?
DR. SMITH: I think it sufficiently covers it. It re-endorses the '96 report and answers any other issues that might be floating out there. But yes, and I think all the DAB members addressed that too.
Dr. Ferrara was there and certainly -- and I would see that as certainly it should be included in your report. If you're going to go down a path of statistics, that should be included in that, just to say that this is certainly what the DAB has addressed. We're very content with that, I guess I'd say.
DR. CROW: Well, it is in the report.
DR. SMITH: Yes. But I think it's slightly mischaracterized in some places in the report. That's my caution.
DR. CROW: Well, maybe you or someone should show me where I mischaracterized it, but most of the time I simply copied the FBI statement.
DR. SMITH: Right.
DR. CROW: That's hard to --
DR. SMITH: But to me, that's enough. I think the problem is you start getting too many documents floating around, and one attorney uses this one and the other attorney uses that one, and it's -- as I said before, it's sort of a rehash of what we had already accomplished in '96.
DR. CROW: Let me say one thing in defense. One thing we don't say in the report is that we're saying new things which are not new. I see no objection to reviewing the state of the art, which is in a way what I did, and then we start making predictions for the next ten years, and one of those predictions you read up there. And I still think it's going to be relatively easy, whatever I mean by that, to do 20 or more loci ten years from now. There's probably room for disagreement about that, but that's not a statement about the present. That's a statement about what we foresee for the future.
DR. SMITH: It will be your tax dollars that will be paying -- that's true.
JUSTICE ABRAHAMSON: Okay. Any other comments, and she's got to catch a plane. Paul?
DR. FERRARA: Yes. I don't want to -- I just want to reinforce something that Jennifer stated.
The forensic science community, when it went -- as the STR testing particularly has evolved and we made a conscious decision to settle on 13 core loci, that decision was an extremely expensive decision. We, the commission, are concerning ourselves with backlogs of convicted felon samples and crime scene material. I'm here to tell you that the expansion to 13 genetic locations seriously hampered that effort, but a conscious decision was made that the benefit outweighed the cost in terms of the specificity.
Even they dragged me kicking and screaming into the 13 loci because it doubled the cost. It doubles the time. So we don't want -- we certainly don't want to consider any modification to the 13 loci, even though we know other ones are out there. We have to -- you get into a point of diminishing returns, and I think the commission needs to balance -- do we need more loci, do we need greater numbers -- I think not -- vis a vis we need something more standard and more facile for the laboratories to address the backlogs they have without compromising in one significant amount the degree of specificity or individualization or the identity issues.
And so -- now, in reading that language, which I read early on, I interpret it to say yes, there's lots of loci out there, and that's not suggesting that we run that. But I share Jennifer's -- anybody's laboratory director's concern that anybody comes up and suggests, Well, maybe you should be running some additional loci, and I think it's important that the 13 we've got now -- I sure as heckdon't want to see those added to or changed in the next 10-20 years.
DR. SMITH: Thank you.
JUSTICE ABRAHAMSON: Thank you, Dr. Smith. Thank you, Dr. Budowle. And we'll take a 15-minute break, which will bring us back at about 3:30, and then we'll come back to the Postconviction Working Group and finish that up, and then go back to Dr. Crow.
(Whereupon, a short recess was taken.)
JUSTICE ABRAHAMSON: If you all would come back to the table? We're back in session and want to welcome Chief Darrell Sanders, who has arrived. And what we're going to do first thing, the most important thing is dinner plans. Chris?
MR. ASPLEN: Can I see a show of hands of folks who would be interested in getting together for dinner, not for business discussion but just getting together for dinner? Okay. Then we'll take a look into getting a reservation to see when we'll get together and where.
JUSTICE ABRAHAMSON: All right. We're going to go back for a moment to the Postconviction Working Group so that -- there was just another suggestion for the redrafting. Jim Wooley?
MR. WOOLEY: Your Honor, I was actually going to ask Woody about some of his additional language --
JUSTICE ABRAHAMSON: Okay.
MR. WOOLEY: -- in paragraph three about the discovery, which was an unrelated -- I don't think anybody had asked him any questions about that.
JUSTICE ABRAHAMSON: All right.
MR. WOOLEY: And I'm not sure if I have a specific question. I wanted, Woody, if you could tell me, how do you think that's going to work in terms of -- and I heard what Jeff said and I agree with it, that people are coming to court and they have some obligations. It sort of reflects the thinking that you have to put your cards on the table. Do you know what I'm talking about?
MR. CLARKE: Yes.
MR. WOOLEY: But how is that operational? How does that work? How is it enforced, what happens, is it -- defendant comes and what?
MR. CLARKE: Well, I think a defendant would have to put it in the application, frankly.
MR. WOOLEY: But how would you know if they didn't and how would -- they have no obligation to disclose it before under discovery rules. I guess what I'm saying I like it a lot. I think it hints at something and I think you've probably heard it before and probably Jeff and the rest of the committee has heard before and perhaps even rejected, when I wasn't here.
It hints at the idea that if you're going to come into court and seek this relief later, you've got to put your cards on the table. I think the prosecutor should have a right to talk to the person, to just flat-out talk to the person before we engage in whatever else we may do in response to this request for postconviction testing. So I think it's a step in the right -- it clearly reflects your thinking and the committee's thinking if we agree with it. There is no Fifth Amendment privilege at that point, because you're asking someone to make disclosures about things that otherwise they previously had no obligation to tell us about, that they had done DNA testing in secret and that it
didn't help them.
You're basically now saying you've got to tell the court about all these things that are harmful, and I'm wondering if maybe you considered even going further?
MR. CLARKE: Well, to go back to the testing, the idea is that, yes. Presumably there's no sanction or way to enforce it except in some instances you actually can tell when a defendant'shad access to the evidence and removed some of it.
MR. WOOLEY: Well, then that wouldn't apply, because we'd have knowledge of that.
MR. CLARKE: No. Actually, all I'm saying is that we may know after defense testing that, well, they got the evidence. They took part of the evidence but have no clue other than that, because there isn't a requirement to reveal that in most jurisdictions.
MR. WOOLEY: Okay. I understand.
MR. CLARKE: Circumstantial evidence that it may --
MR. WOOLEY: You know that they confirmed it or they'd have told you otherwise.
MR. CLARKE: Well, they didn't necessarily test it yet, or if they tested it they may have only done a portion of it, but we do have some circumstantial evidence that there may be some results here.
MR. WOOLEY: Right.
JUSTICE ABRAHAMSON: Jeffrey Thoma?
MR. THOMA: And, Jim, I really agree with Woody on this. For example, in California you're given access to a sample and what you have to do in the application -- we should make it part of it. You know that happened. You had access to the sample. You have to explain what happened
with it. You may be explaining under oath or in a declaration. Went to somebody, reviewed it just cursorily, or whatever they did with it, you have to explain that.
But I don't think, for our purposes, we can really overreach and go beyond the DNA testing itself and say, Well -- because this is with regard to DNA. I don't know if we really want to get into having prosecutors have this access that you're talking about with a defendant on a variety of issues or whatever amount of issues. But with regard to this I am 100 percent with my colleague, Mr. Clarke. Let's get our cards out on the table. This is an equitable relief situation that we're doing.
Make defense -- absolutely some declaration of defendant or defense attorney or both, whatever way we can enforce this, and make certain that we know every test that's ever been done with regard to these samples before we do any further testing.
JUSTICE ABRAHAMSON: Do you want a sentence in there to begin with that there be an affidavit by both parties -- by either party saying that there was no testing or what the testing was? Is that what --
MR. THOMA: I think that would be the way for it to be --
JUSTICE ABRAHAMSON: It says it shall be revealed in the motion for testing or response, so it's there.
MR. THOMA: Yes.
JUSTICE ABRAHAMSON: Is that good enough?
MR. THOMA: Yes. I think it's there. I think that would be the vehicle by which to do it, is to actually attach the results or whatever, but make certain that both sides know how many times it was tested, where it was tested, what the results of it were, before a judge has to determine whether he's going to allow further testing.
MR. CLARKE: And what the idea is -- what would be contained in this portion is only that which has not been previously revealed.
JUSTICE ABRAHAMSON: Right. And that's what it says.
MR. WOOLEY: Would you want a provision in there that in the application that it has to be something that -- under penalty of perjury if you make an avowal?
MR. CLARKE: I'm trying to remember if that has to be -- do any of the previous requirements --would they require any such declaration or affidavit? I don't think they would, would they?
MR. WOOLEY: No, but a draft that I saw of the attorney general in California on one of the proposed bills that they were talking about had a provision in there regarding penalty of perjury.
MR. CLARKE: Actually, if the last provision is adopted that I suggested about the reason for the request and that it's not to delay imposition of sentence, that would probably have to be in declaration in form, I would think. I'm thinking --
JUSTICE ABRAHAMSON: Are you talking about number four?
MR. CLARKE: Yes.
JUSTICE ABRAHAMSON: What if you put four in that sentence up front in request for testing, both of them, because both of them relate to the applicational response. Right?
MR. CLARKE: Yes.
JUSTICE ABRAHAMSON: So you put that up --
MR. CLARKE: The only difference is it's not a prerequisite -- well, it is a prerequisite in a sense that it has to be revealed.
JUSTICE ABRAHAMSON: Yes.
MR. CLARKE: And actually, that's a good point because a court should be able to, if it is revealed and it demonstrates something that would derogate from the testing being eligible, presumably it would make more sense there.
JUSTICE ABRAHAMSON: Yes.
MR. CLARKE: Yes.
MR. THOMA: I think it should be in the application.
JUSTICE ABRAHAMSON: It relates to both the motion and the -- if you put them up --
MR. CLARKE: It's not going to arise frequently, mind you.
JUSTICE ABRAHAMSON: No.
MR. WOOLEY: I don't think anybody would ever make that disclosure. There's no sanction attached to its non-disclosure. There's nothing you can -- if you're in jail and you're doing life, you're going to say, We never did any testing that I know of, and you're never going to know because you don't know.
JUSTICE ABRAHAMSON: I know, but if you got to court, don't you think there would be counsel appointed?
MR. WOOLEY: Right. But what I'm saying is, how would the counsel necessarily even know that, and then the person that did it the first time through the lawyer and the first time has no obligation to make the disclosure. I'm not sure how much teeth there is. It's a great sounding sentence and supported by great sounding things by Jeff about how it's an equitable thing, your coming here. We assume you have clean hands.
I think the only way to put teeth into that thought, frankly, is to say that -- because we have a section on discovery, that a person who's seeking this relief should be available to ask questions, and I assume that's something you have already talked about at some point in time.
MR. THOMA: I don't remember us talking about that. Jim, I think I know what you're asking though, is you're asking the defendant some questions. The defendant doesn't necessarily know where the sample goes, who tests it, what the actual results are, or knows anything about DNA. I think ultimately what we want is out on the table, in the application where it was tested, what the results were, and some vehicle to maintain the integrity of that.
And in the situation that Woody and I are most familiar with, which is under prints, where they do not have to, there's still the chain of custody, and to actually get access to it it will be in thecourt record, and anybody that takes this case up will know -- will be able to see that you had access to the sample and you'd have to follow up -- that counsel or somebody would have to follow up as to what happened with it, even if they didn't know to begin with.
But if we want to ferret out exactly what kind of language we want and what kind of teeth we want in this aspect of it, I think we want to make it come to the judge when the application is there, and the judge, based on what he sees and what he knows about the record -- for example, the prosecutor would also know that the sample was -- the defense had access to the sample and some of the sample was used or something, and then they would bring that up in their response. And it may be a very easy way to get the whole application knocked out literally, because of the lack of equity, the lack of candor by not complying with this aspect of it.
MR. WOOLEY: Yes. And I agree with the underlying rationale and I'm suggesting that consideration of an additional provision, the lack of candor. If you have people that have pleaded guilty and have stood up in court, and in the jurisdictions I've worked, have admitted there's a factual basis for the plea and have said I did it and explained the whole thing, it would seem that in terms of equity and lack of candor and those issues that perhaps we want to consider that when the person now is going to ask to have these thing investigated later, maybe we'll be able to say, Well, we'd like to ask you some questions about it, and not to be -- the guy's already convicted.
It's not like you can reconvict him by getting him to confess, but you may be able to ask some questions to ferret out how legitimate the application really is. You pleaded guilty, you said this under oath. Could you please explain to the court or to whoever why you did that? What happened.
JUSTICE ABRAHAMSON: Well, if that's done, shouldn't it be done in open court?
MR. WOOLEY: Well, certainly it shouldn't be done in a place where the person could be disadvantaged. It should be done at least with his lawyer there -- his or her lawyer there. Absolutely.
JUSTICE ABRAHAMSON: There's nothing here that would stop that.
MR. WOOLEY: Except for Jeff, a very good lawyer. You wouldn't let your client speak to the prosecutor. I wouldn't.
JUSTICE ABRAHAMSON: Well, that's right. That's why I'm suggesting if it's done it be done in open court with counsel there, if it's done. Like in a suppression motion --
MR. WOOLEY: Right.
JUSTICE ABRAHAMSON: -- the defendant may take the stand. Open court with counsel present.
MR. THOMA: I would suggest leave it be and the judge who's determining this application has access to the information, either himself or through the prosecution or through the defense as to who tested or when or what was tested, because if we try to explain the exact scenario, this thing's going to get awfully long, and we're really going to hamstring judges from conducting this basically in the long run.
JUSTICE ABRAHAMSON: Any other comments on this? Do you want to put that sentence in C3 up to the beginning on a request for testing?
MR. CLARKE: I'm just wondering, it's going to be so infrequent, maybe the provision where it is is fine.
JUSTICE ABRAHAMSON: Okay. It's fine with me. I'm just trying to -- obviously if you read the whole thing you know what you have to do.
All right. We have some suggested changes, and I don't know that we've reached an agreementon Jim Wooley's point, other than to note that it's a continuing issue and problem and that there are no specific penalties there. Okay?
All right. We're now going to move into a non-controversial area, Research and Development Working Group report. Dr. Jim Crow? We told him this was going to be an easy part when he joined the committee; not to worry, everything was going to be okay.
DR. CROW: I was assured there'd be nothing controversial whatsoever in what we dealt with.
JUSTICE ABRAHAMSON: That's right. We're going to have to wire you up, or is there a microphone there?
(Pause.)

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