JUSTICE ABRAHAMSON: Okay. Hearing no other comments on that, we look forward to their report in July and we go to Michael Smith.
MR. SMITH: Chris told me you weren't going to do that.
JUSTICE ABRAHAMSON: Is that right?
MR. SMITH: Why don't I ask Chris if he'll give my report for me?
JUSTICE ABRAHAMSON: You have to be absent.
MR. ASPLEN: In all fairness to Michael, Michael and I spoke last week briefly, and we haven't had a chance to talk about the meeting that I had on Friday. But the bulk of the legal issues, I guess, presentation, if you will, is more a matter of discussing what the commission would like to see happen at a legal symposium in the fall, so to get our minds away from the law enforcement summit and bring it around to a legal symposium.
The work of the Legal Issues Group has -- will form the basis for that particular symposium and some of those issues, but what we want to do first of all is make sure that the commission states what it would like to see addressed there.
To give you a little background, I met on Friday with representatives from the Kennedy School of Government to develop -- to start the process of developing a joint meeting. And what we would anticipate would be a commission meeting -- and this would probably be in November -- which would be essentially a half-day commission meeting. It would not be a full meeting. It would really be a meeting to wrap up the last bits of business that the commission has, and then would start the actual symposium, and it would be the last meeting of the commission.
The Kennedy School runs forums, if you will, that analyze particular issues and provides a policy insight on particular issues. And what we're talking about is DNA as a model of technology integration into the criminal justice system, using that as an example of the effects that technology has on the justice system. What are the privacy considerations, what are the funding issues, et cetera, and how should those decisions be addressed, if you will. So those are the kinds of things we've talked about.
To be very clear, we don't have anything in writing. Kennedy Center has not committed to us fully. We're in the beginning stages. But what we'd like to do and what Professor Smith and I discussed was opening this time up to the commission to talk about what you folks would like to see occur in that context.
JUSTICE ABRAHAMSON: Are you envisioning panels and speakers? Are you envisioning anything that's interactive with the audience?
MR. ASPLEN: That's certainly a possibility. One of the things that we would do first of all is invite the attorney general to speak. Ideally what we'd like is for her to speak at the end of the commission meeting and act as a kind of final presentation to the commission, close out our work, and then act as the keynote for the actual symposium.
But then there is certainly a vision for different panels to discuss these particular issues. We could break out into different forums. We could have plenary sessions. It is really a very open-ended proposition at this stage.
JUSTICE ABRAHAMSON: And the audience? Lawyers, prosecutors, non-lawyers?
MR. ASPLEN: Since we're talking primarily about the legal issues and it would be focused on legal issues, that would certainly be the bulk of the participants. However, you could certainly see privacy advocates who might not necessarily be attorneys involved and other folks who would certainly be interested in what those legal issues are.
We would probably be limited to about 200-250 people.
MR. SMITH: I don't think it would or could effectively be limited to lawyers, in part because the felt need for such an event arises in part because the law seems an inadequately broad net to catch some of the more important but elusive questions of politics and philosophy that keep popping up when we talk about how to integrate DNA technology into a system of law. And so we'd want to hear from ethicists and philosophers and royalty of various kinds, but I don't think you'd want to have just the royalty in attendance, and that's the trick of putting together the audience for this.
It hasn't really occurred to me -- I haven't an idea about the balance between panels and discussion of -- for a 200-person symposium, because I haven't thought -- and you may have, they may have -- whether there are to be products of this symposium, because if there are to be products of this symposium, it's unlikely that the way to get them is by structuring a day or a day and a half of general discussion in a 200-person crowd. You'd have to have papers and rather specific ambitions for product.
But I myself am not certain that product is the reason to have the symposium. It may be the reason to have the symposium is simply to air and table a set of issues that can't be resolved right now but need a more structured and visible conversation nationally.
MR. ASPLEN: One of the Kennedy School's requirements is that a product be developed.
MR. SMITH: Well, let them produce the product then.
MR. ASPLEN: Now, that product may simply -- may be simply the airing of those particular issues. It may just be a description of that particular discussion. But they do intend -- if this does proceed they do intend to produce some work out of it.
MR. SMITH: It wouldn't be a bad idea. I'm not saying it's a bad idea at all.
MR. CLARKE: I was going to say, the whole database question and potential expansions, that could fill a day and a half easily.
MR. THOMA: I actually wrote that down as one of the first things myself.
Another issue that might be interesting in a national symposium would be the admissibility and weight issues; how to conduct a hearing, not necessarily -- because not all jurisdictions have admissibility hearings at this stage, but certain issues with regard to proficiency and things like that. What should a court hearing with regard to the admission and weight of DNA consist of, and I certainly could see some type of structured debate on that issue, and we can lay out some models from what jurisdictions are doing right now in different places.
Obviously, coming from California -- and we have a little different standard than the national standard -- but it's not that unique. It's just a little different. And I think that would be a discussion that could actually enlighten some people into getting to a more general type of hearing so that -- we have a mishmash, even in California -- you go to one jurisdiction or another jurisdiction or another judge or two judges in the same jurisdiction, they want to look for different things with regard to admissibility hearings, what we call Kelly Fry [phonetic] hearings, and I think it would be interesting to get that out there -- that debate out there, prosecutors and defense attorneys and judges -- what they think is paramount at a hearing like that. It's just another issue.
But I agree with Woody, the privacy and database issues combined would be -- even if you separated them would take a day.
MR. CLARKE: I suppose the most difficult part would be deciding amongst all the topics we've discussed which are the most urgent, frankly. I remember in NRC I, of course, there was a substantial discussion on how DNA evidence should be communicated to jurors, which was thought-provoking at a very minimum.
JUSTICE ABRAHAMSON: It would be a breakout panel? Norm?
MR. GAHN: I was just jotting down a few things. I think the admissibility issue has been beaten. I think we've been there and done that throughout the country, the admissibility of this, and I think we've hit everything we need to hit on privacy. I was thinking something more along the lines of something very, very practical in questions that are asked every single day. And I have police officers and detectives calling me all the time, Can I follow a guy around, and if he spits, can I take his spit and can I use that?
You have a lineup and there's a mis-ID. Can we compel the person who's mis-ID'd to give a blood sample for DNA exclusion? I just thought of another one too. Professor Crow talked about his alternative of the statistic for siblings. If a person does have brothers, can we compel the brothers to give a sample for DNA testing? On the scene, can we take a buccal swab from someone -- a suspect? That's all. Now that PCR is so sensitive, how about taking a swab of the surface skin cells? Does that even reach the level of a Fourth Amendment?
These are very practical issues for the cop on the street, and I think that would probably be one of the more helpful things that this commission could do, is to give those police officers some guidance. We all have all this technology and we talk about a lot of philosophical issues and things, but for that cop and detective on the street, what can and can't they do and what can they take, what is Fourth Amendment, what raises to that level, and who can you compel to give a sample? And that might be I think a very interesting area to discuss.
MR. SMITH: The difficulty, of course, is that at the -- unless the law develops a lot between now and November, they can get on those topics debate. We got it in this group, debate. Now, it's an interesting debate and it's a debate in which we might want others engaged, but it doesn't distill to advice to a police officer directly.
Barry and David could have a debate about whether or not the Fourth Amendment touches -- in what way it touches those questions. But the Kennedy School doesn't look to me like the site for the generation of practical advice to police officers calling you with that question. But it doesn't mean at all that it wouldn't be valuable to surface that debate in a place where its resolution becomes more important. Part of the difficulty is that we can debate it but nobody cares because it isn't at a high enough level of visibility.
If the issues are important -- and they seem to me to be, for the reasons you say -- then they're going to have to reach a higher level of visibility before they're going to be handled. That would be a reason to have a symposium.
JUSTICE ABRAHAMSON: Ron?
JUDGE REINSTEIN: Well, Mike, do you think postconviction is at that high level?
MR. SMITH: Yes. You're already there.
JUDGE REINSTEIN: I mean do you need to have a summit on that?
MR. SMITH: I don't know. That's a question for you.
JUDGE REINSTEIN: As far as one issue.
MR. THOMA: I certainly don't think it's there yet. I mean, we're getting there, and certainly I think in a few minutes we're probably going to finish our recommended statute, but just the fact that New York and Illinois have adopted such statutes, and California and other jurisdictions are thinking about it doesn't mean a lot's going to happen between now and November. I think it's a really relevant topic, postconviction relief absolutely should be on the agenda for issues.
MR. SMITH: One way to do it would be to think of -- is it a day and a half that we're likely tohave?
MR. ASPLEN: I would say two days.
MR. SMITH: Because one way to do it would be to -- would be just to work hard to distill from
investigation trial matters and postconviction matters to distill away a set of issues -- a small set of issues, the visibility of which would assist in the evolution of the practice and all that, but not to confine it to one of those three, rather to -- there are different stages of development, but to treat -- the service would really be to permit others to take those foci and use them: journalists and academicians and practitioners.
And I would suggest those three could be included in the 200.
JUSTICE ABRAHAMSON: That was investigation, trial, and postconviction?
MR. SMITH: Yes. I further agree on the admissibility question, but there are other trial issues including what's the way to communicate here? The discussion here yesterday about -- well, I don't want to say what it was about, because I risk being wrong. But whatever it was, it included communicating some of these matters to those who aren't part of the secret society or secret societies, of which there are several at the table.
JUSTICE ABRAHAMSON: It seems to me that what this symposium will have to do is deal with broader issues and lay out the broader issues and narrow issues under that, as well as perhaps some that some would classify as everyday, more practical issues, such as the investigation trial and postconviction, and how you do it, I don't know but somehow a balance between the two.
What about the concept in terms of database and privacy that we've always referred to here in that you've got all this medical evidence out -- I don't mean evidence, but medical information out there?
MR. SMITH: One of the things that would be useful to do in such a setting would be the place the privacy concerns that arise around the forensic use of DNA and the database issues for us in the context where they're properly placed, which is where's my DNA today anyway and questions like that.
I'd like to hear that. We don't have testimony here about that, although you can read. People are writing about that stuff. I'd like to see a third of a conference like this devoted to that. I think others in my working group would too.
MR. THOMA: I agree. I think the two topics that are most at the forefront and visible in the work of this commission have been the issues of privacy and databasing as well as postconviction relief.
MR. SMITH: And the jurisdiction is too limited here to deal with that, for the very reason that the greatest threats and the greater data is out there in other systems as it is.
JUSTICE ABRAHAMSON: And dealing with all of us, even if we're not convicted or arrested.
MR. CLARKE: I think that's entirely part of the whole databasing question, as presented to this commission by the attorney general.
JUSTICE ABRAHAMSON: That's a great title, Where's my DNA anyway?
MR. SMITH: You don't want to know.
JUDGE REINSTEIN: What about some kind of discussion comparing what goes on in Great Britain with --
JUSTICE ABRAHAMSON: Comparative law.
JUDGE REINSTEIN: Yes. What the results have been there and is that a forerunner to what we could have.
JUSTICE ABRAHAMSON: That would be a good session, comparative law in Britain and some of the Scandinavian countries too, and Canada.
MR. SANDERS: So I just want to see you get 200 lawyers together and accomplish anything in two days.
(General laughter.)
JUSTICE ABRAHAMSON: Well, we'll have others. I think we may have some medical practitioners and law enforcement officers, so they'll keep us on track.
MR. SMITH: And that's my report.
JUSTICE ABRAHAMSON: Thanks.
DR. CROW: Is it in order to commend someone for a report?
MR. SMITH: I have to ask Chris whether that was my report or not. I don't know.
JUSTICE ABRAHAMSON: Chris and I have talked to several people among the commission, and we haven't talked to several also in terms of having a steering committee on this conference, and Michael Smith and David Kaye should be on the steering committee. I haven't talked to either one of them, but since it comes out of their working group -- are you willing?
MR. THOMA: And it's my working group, too.
JUSTICE ABRAHAMSON: All right. Good. And I talked to Jim Wooley yesterday and he agreed, and we thought we should have our ethicist, Phil Reilly, but we haven't talked to him. He's in Cambridge too, so that would be good, and Chris Asplen. Okay.
Anyone else here would like to be on that working group? Can we call on you all? Do we have a prosecutor? Does Wooley fit that --
MR. ASPLEN: Well, he's an ex, but it's still in his heart.
JUSTICE ABRAHAMSON: Okay.
MR. ASPLEN: I'm comfortable that --
JUSTICE ABRAHAMSON: And defense. Okay. We included Barry. We haven't talked to him either.
JUDGE REINSTEIN: If you need me, I'll do it.
JUSTICE ABRAHAMSON: Okay. In case we need a judge, let's put down Ron.
MR. ASPLEN: What we'll do is we'll get in touch with you and let you know --
JUSTICE ABRAHAMSON: What the lay of the land is.
MR. ASPLEN: -- and the Kennedy School will also put together a number of individuals. And we'll try to communicate as much as we can via e-mail and telephone, but there probably will be a trip or two required, either to Cambridge or to Washington, but hopefully not many.
JUSTICE ABRAHAMSON: And let the Kennedy School -- I'm just assuming that it will be a broader public policy kind of concept, and that's good.
MR. ASPLEN: That's what we want, I think.
JUSTICE ABRAHAMSON: Good. Anything else on this that we should discuss? Michael, Chris, anyone else?
(No response.)
JUSTICE ABRAHAMSON: Okay. We are on our way to a symposium in November, we hope. We haven't really looked at anything else other than the Kennedy School. Right?
MR. ASPLEN: Correct. We went there first and it seems to be a --
JUSTICE ABRAHAMSON: Okay. A good possibility? All right.
MR. SMITH: If that doesn't work out, you can always --
JUSTICE ABRAHAMSON: Pardon me?
MR. SMITH: I said if that doesn't work out you can always use the University of Wisconsin.
JUSTICE ABRAHAMSON: In the winter? Let us see how hearty you all are, and we are too, although I don't know that Boston's very much better in terms of weather.
Well, let's break, and we'll come back -- it's 10:30 approximately. Why don't we come back about 10:50 and we'll start on Paul, and then I'm hoping we can continue along and maybe leave earlier. It's going to apparently snow in Chicago this afternoon, for those of you who have to get out of here. So, 10:50. Okay?
(Whereupon, a short recess was taken.)

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