PROOF POSITIVE.

The newest key to cracking cases is DNA. But the challenge for states is how to tap its potential and also protect civil liberties.

The 1992 stabbing death of a Fairfax County, Va., shop-keeper was among those destined for a "cold cases" drawer. A 45-year-old mother was stabbed multiple times in what appeared to be a vicious attack and struggle. Although considerable physical evidence was collected at the crime scene, including blood that wasn't the victim's, detectives had few other leads to pursue.

But last year the case was cracked when DNA from the crime scene was matched to an offender profile. Under Virginia's law, all convicted felons are required to provide a DNA sample for the state's database maintained by the Division of Forensic Science. The defendant, who had been released from prison following a 1996 robbery conviction, has now pled guilty to the murder.

The "cold hit" was one of thousands in the states made possible by the advent of offender DNA databases. The enormous capability of forensic DNA has states scrambling to bring criminal justice policy and practice up to speed with the technology's power to aid investigations and solve crimes. At the same time, civil libertarians want to ensure that limits are placed on how far government can go in collecting samples and using them to identify suspects.

DNA evidence from a crime scene can be compared to several categories of individual samples. Suspects in ongoing investigations may agree to provide a sample or may be ordered by a court to do so. "Elimination samples" also are collected from the victim and from certain people who are not suspects. And crime scene evidence is routinely checked against the growing numbers of samples taken from convicted offenders.

"The more offender samples you have on hand, the greater the ability of law enforcement to identify suspects and protect the public," says Assemblyman Joseph Lentol of Brooklyn, N.Y., chairman of the Assembly Codes Committee. He says that repeat and sex offenders can be more readily identified by the state's DNA database since it was expanded from 21 crimes for which offenders must provide samples to 107.

All states have passed laws to require DNA collection from certain convicted sex offenders. In most, other serious offenders also are required to provide samples. Last year alone, at least nine states added crimes for which offenders are required to submit genetic samples.

So enthusiastic is law enforcement about the power of DNA to identify and eliminate suspects that the International Association of Chiefs of Police has taken the bold step of endorsing the collection of DNA samples from inidividuals at the time of arrest. They also encourage federal funding to support state and local efforts, as well as safeguards to pre vent misuse of samples.

Louisiana authorized taking samples from people arrested for sex offenses and other serious crimes in 1997 but delayed implementation until a state crime laboratory could be funded and properly equipped. An appropriation expected this year would help move the state to ward the unprecedented practice. New York also has had proposals to add samples of those arrested for certain crimes to the state's database, but Lentol says the catch-up mode they find them selves in right now is overwhelming the idea of requiring more samples. In New York and elsewhere, labs have had difficulty keeping up with increasing numbers of offender samples.

Sampling arrestees, not just those convicted, also raises privacy concerns. "A caution flag must be raised on proposals to take DNA samples from people who have been arrested but not convicted," says Lentol. He said that any such move would require thorough consideration of the legal ramifications.

Courts routinely have upheld state laws applying to convicted offenders. But how courts would treat samples from people who are arrested, but who may or may not be charged and convicted, is still uncharted territory. It seems likely that this would prompt review under the Fourth Amendment's protection from unreasonable search and seizure. This brave new world bridging the human genome and the police precinct prompts privacy concerns even among big supporters of state databases.

GENETIC DRAGNETS

State legislation has not specified that suspect, victim and other elimination samples given for one particular investigation be compared to other DNA evidence in government databases, warns defense attorney and law professor Barry Scheck of the Cardozo School of Law in New York. Yet some police departments have sought to solve certain crimes by carrying out "genetic dragnets" in which saliva swabs are collected from many acquaintances, neighbors and other people who knew or associated with the victim. This practice raises the issue of whether individuals are giving samples voluntarily or if they are intimidated at the possibility of becoming a suspect if they refuse. Observers also warn that it creates the possibility of "suspect databases" containing samples from people taken for no, reason other than their having lived in a particular neighborhood or having been a patron or employee at some place of business.

A Justice Department National Commission on the Future of DNA Evidence that has been at work the past five years has discussed--but thus far has deferred judgment about the wisdom of--taking DNA samples from arrestees. The group's executive director, chris Asplen, says the issue isn't ripe until retrieval of DNA evidence is a routine part of police procedure, and state and local labs are able to process the samples now provided for under current laws. The commission recently published a law enforcement guide to help in training officers on common items that may contain DNA evidence, along with procedures to safely handle and transport that evidence.

"Some 12 million people will be arrested in this country this year. Clearly it is not yet feasible to think about profiling that many more samples," says Asplen. There currently is a backlog of some half a million unanalyzed samples collected from convicted offenders, according to the FBI, and there are an estimated 1 million more samples that haven't even been collected yet.

UNFUNDED MANDATE 

Backlogs occur because, in most cases, DNA offender databases were created without the lab funding to support that work. "You could call it an 'unfunded mandate,'" says Asplen. Most state and local forensic labs were designed and equipped for crime-scene evidence analysis, not the more "robotic" profiling of DNA samples. "Offender profiling is not only a new pile of work, it is a different type of work" he said.

States now are addressing lab capability with funds from the Justice Department. Last year, seven states were awarded grants totaling more than $7 million to help analyze DNA samples. Some 150,000 samples from criminals in California, Florida, Minnesota, New York, Pennsylvania, Texas and Washington can now be entered in the system.

In addition, late last year Congress passed the DNA Analysis Back log Elimination Act of 2000 (HR 4640), authorizing $170 million for this purpose. The money will help in entering samples in the FBI's Combined DNA Index System. The national system, established as a pilot program a decade ago, now houses some 460,000 offender samples that can be compared with those of other states. Currently, there are 97 labs in 34 states that participate in the system. Some states have turned to private labs to catch up on their backlogs.

"With private contracts to get offender samples profiled and funds provided to upgrade state and local labs, we are beginning to see the crime-solving promise of DNA data banks be realized," says Asplen. Earlier this year, Ohio's DNA database had its first match to an unsolved rape and burglary. The state had just completed profiling and uploading 30,000 offender samples that had been collected from certain felons since 1997.

New York City has recently sent thousands of stored rape kits to private labs. Comparing evidence in those cases to the offender database is likely to yield a fascinating amount of information, Asplen says. "Serial offenders will be identified and we can expect to catch sex offenders we didn't know about." He said that requiring samples of many felons as permitted under New York law provides opportunity to identify sex offenders among felons who have been convicted of less serious crimes.

In Virginia, where DNA sampling of all felons has been required for more than 10 years, samples provided by property offenders account for most of the hits solving violent crimes, according to Paul Ferrara, director of the state's Division of Forensic Science. The brutal stabbing in Fairfax County is one of 352 solved crimes to date, 247 of those just since 2000, credited to the state's DNA database.

"They are starting to come fast and furious," says Ferrara. "We're getting a hit a day and dangerous people off the streets."

Donna Lyons heads NCSL's Criminal Justice Program in Denver.

HOW OUR GENES ID US

DNA, or deoxyribonucleic acid, is present in virtually all cells of the human body. This genetic code that we inherit from our parents is a potent identifier because each person's DNA is different from that of every other individual, except identical twins. Physical evidence recovered from a crime scene--blood, semen, saliva, hair, skin--can be tested for DNA markers. Advances in analysis allow very small amounts of matter, like a trace of saliva on a discarded cigarette butt, to be tested. Forensically valuable DNA can be fund even on evidence that is decades old if it was Collected and stored properly.

Making Amends

The scientific accuracy of DNA can free the innocent. But state lawmakers have to decide who gets a second chance.

Molly Burton

Frank Lee Smith proclaimed his innocence until the very end. After two eyewitnesses testified at trial that Smith was near the victim's house moments before the murder, he was sentenced to death for the 1985 rape and murder of an 8-year-old Florida girl. Judges denied Smith's appeals, even after one eyewitness later recanted her story.

Hearing of DNA technology and its use to exonerate the innocent, Smith's attorneys asked to have the crime scene evidence tested. While attorneys on both sides battled over the testing conditions, Smith died in prison of cancer. After his death, and another battle over the destruction of the evidence, prosecutors agreed to DNA testing. It revealed that Smith was innocent of the atrocious crime for which he was convicted almost 15 years earlier.

In fact, the DNA sample was matched to another man, considered a suspect during the initial investigation. Smith's case was the 78th exoneration based on DNA evidence. To date there have been 88 such exonerations, 10 of which were offenders on death row.

These cases have prompted legislators in 16 states to pass laws (and introduce bills in at least 20 others) to allow DNA testing after conviction under certain conditions. "DNA is irrefutable, whether to identify and convict or to exonerate. We've provided policy avenues to either," says House majority whip Marilyn Jarrett of Arizona, which enacted a post-conviction law last year.

Laws vary as to which offenders are allowed post-conviction testing, the procedures for obtaining a DNA test and whether or not evidence susceptible to DNA testing must be stored and preserved.

Attorney Barry Scheck, who runs the Innocence project at New York's Cardoza School of Law, said that DNA testing results in favor able outcomes in four out of 10 requests. While these numbers may cast doubt on the credibility of the criminal, justice system, some see it as an opportunity to correct past errors. DNA tests shed light on the reliability of eyewitness testimony, but "on one expect any type of system to be perfect; these laws add credibility because mistakes made can be righted," says Judge Ronald Reinstein of Arizona, one of two judges who serves on the U.S. Department of Justice's National Commission on the Future of DNA Evidence.

Illinois, Delaware, Minnesota and New York allow those convicted of any crime to request DNA testing. Arizona limits tests to those convicted of felonies, as do Michigan. California and Oklahoma. Tennessee and Washington restrict the procedure to offenders on death row or to those sentenced to life without the possibility of parole, but legislation is pending in both states to expand it. In Illinois, Michigan and Minnesota, the defendant must show that evidence was not previously tested, that identity was at issue during the trial and that the evidence was Subject to a clear chain of custody to rule out any chance of contamination. California additionally requires that the petition clarify whether or not DNA raises a reasonable probability that the verdict would have been different.

Oklahoma created a system to first investigate cases of indigent incarcerated felons for whom DNA has a very real possibility of proving their innocence. Convicted offenders serving lengthy sentences or under sentence of death are given priority.

Washington requires inmates to request testing from the prosecutor rather than the court. If denied, the offender may appeal to the state attorney general. A Connecticut measure passed last year allows DNA evidence as a basis for a new trial.

PRESERVING THE EVIDENCE

But these measures are only as good as the quality and availability of the evidence. So legislatures also are addressing preservation and storage of DNA evidence. Arizona and Illinois require that evidence be preserved during the criminal proceeding and retained after trial. California and Michigan require evidence be kept until the offender is released. Though not included in the post-conviction DNA testing measure passed last year, Oklahoma Representative Jari Askins was successful in getting a preservation requirement for the term of the incarceration passed this session.

While experts stress the need for preserving DNA evidence after trial, it has to be done care-fully.

"There has to be a sense of reasonableness about this," says Chris Asplen, executive director of the U.S. Department of Justice's National Commission on the Future of DNA Evidence. "If a crime occurred in a car, is it the government's responsibility to keep the whole car, or only the carpet pieces believed to contain evidence relative to the crime?

"And what is the remedy if evidence required to be preserved is lost, not retained or stored improperly?" he asks.

Under a Virginia bill passed this year, evidence must be preserved under standards set by the Department of Criminal Justice Services. The measure also allows preserving samples of the evidence if storage of the entire amount is impractical and bans appeals when testing is denied.

Arizona's measure also permits representative samples and allows the court to impose criminal sanctions for deliberately destroying biological evidence. Other states allow destruction of evidence if the defendant has been notified beforehand.

States without post-conviction DNA measures may be affected if federal judges in those states agree with a recent Virginia U.S. District Court case holding that state inmates may sue in federal court for DNA testing if denied testing by state officials.

The power of DNA to exonerate has captured the attention of Congress, as well. An Innocence Protection Act has been introduced in both houses, and would require states, in order to receive federal money, to certify that DNA tests are available to individuals convicted of certain crimes and that evidence has been preserved. Supporting the individual approaches states have taken in addressing post-conviction DNA testing, some state lawmakers question the appropriateness of a federal solution.

"It's easy to impose a one-size-fits-all mandate," warns Connecticut Representative Mike Lawlor. "It must be drafted carefully."

Molly Burton is a researcher in NCSL'S Criminal Justice Program.

CATCHING CRIMINALS WITH DNA ALONE

In jurisdictions across the country, arrest warrants no longer require a name or even height, weight, hair and eye color. The traditional means of identifying individuals has been replaced by science--namely DNA.

Last year, Colorado and Washington lawmakers passed bills allowing prosecutors to identify perpetrators solely from DNA profiles of physical evidence collected at crime scenes. California enacted a similar law permitting prosecution of certain sex offenses within one year of the date the perpetrator was identified through DNA.

often referred to as a "John/Jane Doe" arrest warrant, prosecutors in California, New York, Pennsylvania and Wisconsin have used these to suspend the statute of limitations. California became the first state to successfully use a John Doe warrant to arrest and charge an individual, and it was upheld by a superior court judge. At least three states introduced legislation in the 2001 session allowing prosecutors to identify suspects by their DNA profiles alone.

Opponents argue that the purpose of an arrest warrant is to sufficiently identify the individual and to provide notice that he or she is a suspect in a crime. They say a DNA profile does little in the way of serving that purpose. Such warrants may cause a delay in prosecution when the suspect's DNA profile is not already in a databank.

But proponents, like judge Ronald Reinstein of Arizona, one of two judges who serves on the U.S. Department of Justice's National Commission on the Future of DNA Evidence, say, "A DNA profile is as good an identifying characteristic as a fingerprint." He argues that the suspect's right to have a name on a warrant diminishes when he tries to conceal his identity or has fled the area.

As more and more profiles are entered into DNA databanks, the delay between issuing the arrest warrant and prosecution will decrease for offenders who have previously or subsequently committed crimes where this information has been stored in databanks.

Judge Reinstein foresees the day when DNA databanks will be comparable to the fingerprint records currently stored in the Federal Bureau of Investigation's Integrated Automated Fingerprint Identification System.

At least three states addressed DNA technology by opting to extend or repeal the statute of limitations for certain offenses if evidence for DNA testing is available. Another nine considered similar legislation this year. In the past, limits were placed on prosecution of crimes, other than murder, because over time evidence becomes unreliable, memories fade and witnesses move away. "A sense of finality needs to be in place for those accused who may not remember where they were on a particular day 20 years earlier, let alone find witnesses to corroborate their account in order to form an adequate defense," says Chris Asplen, executive director of the U.S. Department of Justice's National Com mission on the Future of DNA Evidence. But DNA evidence changes the notion of the statute of limitations because it is not based on memory, but on science, which, if preserved, is just as reliable many years after collection.

Last year, Connecticut legislation extended statutes of limitations for certain sex crimes to 20 years if the victim notifies authorities within five years of the crime and the identity of the offender is established through DNA. Delaware allows prosecution of felonies and misdemeanors 10 years after the offense if based on DNA evidence. And Minnesota has no time limit on prosecution if DNA evidence was collected at the scene. Although he favors extending the statutes of limitations for sexually based offenses, Connecticut Representative Mike Lawlor, chairman of the House Judiciary Committee and a former prosecutor, raised some concerns that policymakers should keep in mind when considering whether or not to extend the statute of limitations for serious offenses.

"With DNA profile catalogs, we are now able to prove definitively the identity of a suspect," he says. "But identity is only one element of the crime. In rape cases, for example, DNA does not help in proving lack of consent, another element that prosecutors often must demonstrate. That is where the common law purpose for statutes of limitations may be relevant."

Molly Burton, NCSL 

Righting Wrongs

DNA can correct mistakes made by the criminal justice system. Law professor Barry Scheck encourages policymakers to ask how to avoid these errors before they happen.

Defense attorney, DNA expert and law professor Barry Scheck is recognized by many as a contributor to the "dream team" that defended O.J. Simpson. But most of his legal life has been spent out of the spotlight consulting with law enforcement officials investigating unsolved crimes, and participating in the Innocence Project he founded with Peter Neufeld at the Cardozo School of Law in New York. The clinical project assists convicted offenders who raise claims of innocence that may be aided by DNA testing. Here, he shares his experiences and views on what is broken in the system that contributes to wrongful convictions, and how technology and policy can come together for better law enforcement and justice.

State Legislatures: Are there really so many "wrongful convictions" that policymakers should be concerned about this?

Scheck: We are now up to 88 exonerations of incarcerated offenders nationally as a result of post-conviction DNA testing. Ten of those individuals had been sentenced to death. There also was another guy who died in prison before evidence proved his innocence. This isn't an issue that has a certain political persuasion. One of the best reviews we got for our book, Actual Innocence, was by conservative George Will. He suggested that the justice system could be perceived as just another failed government program if steps are not taken to correct flaws.

We now have gone through a period where there has been this remarkable number of exonerations of people who have been convicted of crimes. They were sentenced, some to death, lost their appeals, then we do a DNA test on a case 10, 20, even 30 years old, and it proves the individual is innocent. In many of these cases, we not only prove one person to be innocent, but we can identify the person who really committed the crime Remember, every time we convict an innocent person there is a there committing more crimes. Correcting an unjust arrest and conviction is a win-win proposition for the justice system because it is just good law enforcement.

Are there many more people behind bars who are innocent?

No one knows for sure, but FBI tests in rape and rape/homicide cases give us some perspective. In about 1989, the FBI started doing DNA testing at the request of state and local authorities. Almost invariably these are cases in which a person already has been arrested or indicted so there is probable cause to believe they have committed the crime. But in 26 percent of the cases where the FBI gets results, the primary suspect is excluded.

Now that is not to say that a quarter of all people charged with rape and rape/homicides in American prisons are innocent. But Starting with the FBI's 26 percent exclusion, and Considering how many of those people Would have been convicted, you still have thousands of cases. So far I've referred only to cases where there is biological evidence--which are maybe 15 percent to 30 percent of all cases. What about all of the other people in prison in the majority of cases without such evidence? It seems logical to conclude that a certain percent of those also are wrongful convictions.

How do we now identify these people who may have been wrongfully convicted?

Generally they identify themselves. They are the on who have been screaming "I'm innocent, I'm innocent," for any number of years. I consulted last year for several episodes of ABC's "The Practice," for which they used an innocence story line based on a true case in Oklahoma. This guy, a star baseball player, was manic-depressive. Jailed for a rape and murder from which DNA analysis later excluded him, and not medicated in the jail, he would hold onto the bars and bang his head against the wall screaming, "I'm innocent, I'm innocent." The TV writers used some of that stuff. The friend of this' guy who was also convicted in the case came within five days of execution. We got a hit running the DNA evidence in the case against Oklahoma's DNA databank, which has quite a few samples in it. Who did it? A guy now in jail for a violent crime against his ex-wife but who also was the principal witness against the two men wrongfully convicted.

Oklahoma is among states recently putting into statute post conviction remedies based on DNA evidence. Where our Inncence Project or others identify someone screaming, "I'm innocent," we look at transcripts to determine if there is biological evidence that could potentially exonerate the individual. But even if there is such evidence in the case, 75 percent of the time we can't find it. It has been lost or destroyed.

So what are the major causes of wrongful convictions?

We have found that about 84 percent of the time it is mistaken eyewitness identification. Victims of crime, and they are people who are entitled to empathy and compassion, are not lying but they often are making mistakes. Mistaken identification is most prevalent across racial lines.

A key problem this: In a conventional police lineup, you have five people standing next to each other. Or you do a photo array and lay a series of pictures out next to each other. Well the data show that is not a good way of doing it because you are inviting the witness or victim to make a relative judgment. You are saying, "Which one of these five people most resembles the person who committed the crime." We know human memory works that way. If you do a sequential presentation, guess what? You dramatically reduce the number of false identifications. However, you do not in any way reduce the number of correct hits. This is a win-win proposition for law enforcement.

So mistaken identification brings about the most wrongful Convictions. What else?

False or coerced confessions are an issue in some cases we deal with. A way to avoid that is to videotape or audiotape interrogations. Minnesota and Alaska for more than a decade have had this requirement because the supreme courts in their states ordered it.

Fraudulent and junk science is a critical, critical area. Forensic science has not always been the discipline that the best people in the profession want it to be. DNA has been a great source for improvement because it was imported from the "hard sciences," so to speak. Back in the 1970s, the Law Enforcement Assistance Administration (LEAA) did proficiency tests of crime lab hair comparisons, bite marks, serology, these types of things. They knew they were getting it wrong like 50 percent of the time. It was terrible. And then that sort of analysis disappeared with the LEAA. Now we can do a DNA test known as mitochondrial where you can actually extract DNA from the shaft of the hair. With today's technology, we can see that much of the microscopic hair analyses are just wrong. You would never want to rely on it for anything of importance.

With today's technology, can we now feel confident that crime labs meet proficiency standards?

Not necessarily. Not unless there is a structure in place to set standards and see that they are met. I commend the New York Legislature for having set up a Forensic Science Review Board to set standards for and oversee crime labs. All labs have to be accredited, which costs money. But ask police and prosecutors and they will tell you it is the best expenditure that they ever made. Nobody hates bad lab work more than a prosecutor does, that's how cases get lost. They hate it. It is another win-win proposition for the criminal justice system. So is better training for police in DNA evidence. Probably the only good thing that came out of the O.J. Simpson case was that people saw that the way evidence is collected and handled is a serious problem.

You've cited several seemingly separate problems contributing to wrongful convictions. How do legislatures get a handle on all this and move toward fixing these things?

First, I'm a big supporter of laws that allow for post-conviction motions for DNA testing, not restricted to existing statutes of limitations for relief. This provides a window for persons convicted as a result of the problems I have mentioned.

Perhaps the single best idea is that of a state "innocence commission." When an airplane falls from the sky or a car blows up or Firestone tires explode on the road, what happens in this country? We bring in the Transportation Safety Board, we bring in a blue ribbon panel with subpoena power, and they ask "What went wrong? Is it system error, individual error, and most importantly, how can we fix it?" They do an investigation and they issue a report with recommendations. It's a basic notion.

But 88 innocent people have walked out of American prisons, and there is not a syllable written in any court opinion about why these wrongful convictions occurred. No analysis. Judges cut orders, people walk out of jail and maybe the press covers it. No way to learn from these errors. I know of no other institution in this country where life and liberty of citizens are at stake that can get away with that. University systems could be involved in innocence review, and in fact are as part of an "innocence network" being formed in law, graduate and journalism schools across the country. I hope legislatures will assist these projects going forward. They are a valuable companion to post-conviction DNA laws because they can investigate cases and contribute to review of causes of and remedies for wrongful convictions. If we can get to this bipartisan, neutral examination of the system it lowers the rhetoric, and we all know that crime is one of those issues that can be politicized to the detriment of everyone in the system.

It's remarkable that DNA has prompted this review.

It is! We have an extraordinary opportunity brought about by DNA technology. We can learn something about the system and fix it. This is a learning moment, and we really shouldn't lose it.

NCSL's Donna Lyons interviewed DNA expert Barry Scheck for this piece. Scheck, along with Peter Neufeld and Jim Dryer, is an author of Actual Innocence: Five Days to Execution, and Other Dispatches from the Wrongly, Convicted. First published in 2000 by Doubleday, it is now a Signet paperback.