The “CSI Effect”: Maximizing the Potential of Forensic DNA October 10, 2012 Maximizing the Potential of DNA Technology Chris Asplen, Esq. Asplen and Associates, LLC

How is DNA technology different than other forensic disciplines? Why does it matter?

How is DNA technology different than other forensic disciplines? The important distinguishing feature of DNA technology is not the scientific rigor with which it was developed The important distinguishing feature of DNA technology is not the scientific rigor with which it was developed Nor is it the extensive judicial scrutiny to which it was subjected. (Castro etc) Nor is it the extensive judicial scrutiny to which it was subjected. (Castro etc) Nor is it the discriminating / identifying power of the technology Fingerprint technology has been applying source attribution results for years and DNA does not (in most jurisdictions)

How is DNA technology different than other forensic disciplines? The difference with DNA technology is the nature and extent to which DNA profiles can be developed from numerous and diverse biological samples

How Did DNA become the Phenomenon That It Is? Numerous “Drivers.” Postconviction Applications Postconviction Applications Accountability Dynamic Accountability Dynamic Legislative Drivers Legislative Drivers Technology Drivers Technology Drivers Media Drivers Media Drivers

Jurisprudential History Admissibility Prosecutors “let it in” Prosecutors “let it in” Defense Attorneys “keep it out” Defense Attorneys “keep it out” Postconviction Applications Postconviction Applications Defense Attorneys “Let it in – justice demands it!” Defense Attorneys “Let it in – justice demands it!” Prosecutors “keep it out – The value of finality!” Prosecutors “keep it out – The value of finality!” Statute of limitations extensions Statute of limitations extensions Prosecutors “It was good enough for Postconviction laws!” Prosecutors “It was good enough for Postconviction laws!” Defense Attorneys “It’s a violation of rights!” Defense Attorneys “It’s a violation of rights!” Database challenges Database challenges

TISSUE (SKIN) CLOTHING

TISSUE (SKIN) GLOVE

PLANT DNA

TISSUE (SKIN) “CONTACT DNA” Fingerprints

TISSUE (SKIN)

BIRD DNA “Bird”

United Kingdom The Metropolitan Police Service The Metropolitan Police Service “A Strategic shift that had taken place in the use of forensic science following the development of forensic intelligence databases that identify suspects rather than provide evidence for the courts”

Familial searching Utilized in many places throughout the world Including the "Shoe Rapist" who took his victims' stilettos as trophies and was caught 20 years later when his sister was arrested for drink-driving Not as effective in the US because of bad policy

Local DNA “Intelligence” Databases: The Power to Solve and Prevent More Crime

Introduction – The Basics  CODIS DNA databases provide an important national tool for fighting crime  However, some of the restrictions imposed by the CODIS system restrict the investigative value of DNA Databases  Local DNA databases can maximize the investigative value of DNA technology by placing the databasing technology directly in the hands of police and encouraging faster turnaround time

 Make cold cases relevant again  Instant and ever expanding database of suspects  “Reinvestigate” a case every time new profiles are added to the database at no extra cost.  Identify serial offenders and connect cases  Identify Offenders across national, state and local boarders Forensic DNA Databases Make DNA a Better Investigative Tool Not Just a Better Piece of Evidence

 CODIS (Combined DNA Indexing System)  Established and administered by the FBI  Subject to Federal FBI Guidelines  Input into a national system  CODIS approved labs  FBI developed database software  Local / Non CODIS affiliated DNA databases  DNA testing done by laboratories with the same accreditation as CODIS  Many of these labs provide DNA profiles to the CODIS system  Profiles are compatible with the CODIS system  Commercially produced software Forensic DNA Databases Two examples

How Did CODIS Begin?  CODIS was initially a pilot project that began in 1990 serving 14 state and local laboratories.  The DNA Identification Act of 1994 (Public Law ) formalized the FBI's authority to establish a national DNA index for law enforcement purposes. In October 1998, the FBI's National DNA Index System (NDIS) became operational.  CODIS is implemented as a distributed database with three hierarchical levels (or tiers) - local, state, and national.

US DNA Database Architecture

 The tiered approach allows state and local agencies to operate their databases according to their specific legislative or legal requirements. Only a CODIS administrator can enter data into the national database. Only a CODIS administrator can enter data into the national database.  All DNA profiles originate at the local level (LDIS), then flow to the state (SDIS). SDIS allows public laboratories within states to exchange DNA profiles.  NDIS enables the public laboratories to exchange and compare DNA profiles against all other state entered profiles How Does Data Get Entered into CODIS?

National DNA Index System (NDIS) – maintained by the FBI National DNA Index System (NDIS) – maintained by the FBI State DNA Index System (SDIS) - each state has one designated SDIS maintained by a CODIS administrator State DNA Index System (SDIS) - each state has one designated SDIS maintained by a CODIS administrator Local DNA Index System (LDIS) – each local database has a Local CODIS administrator database that receives that is responsible for what profiles go into the LDIS Local DNA Index System (LDIS) – each local database has a Local CODIS administrator database that receives that is responsible for what profiles go into the LDIS Who Enters Data into CODIS?

Law Enforcement Agencies themselves Law Enforcement Agencies themselves Unless that agency has its own CODIS approved local Database Unless that agency has its own CODIS approved local Database Private laboratories Private laboratories Even though private laboratories maintain the same accreditation and certifications as public laboratories do. Even though private laboratories maintain the same accreditation and certifications as public laboratories do. FBI regulations require that all DNA profiles analyzed by a private laboratory must be “technically reviewed” by the State CODIS approved laboratory FBI regulations require that all DNA profiles analyzed by a private laboratory must be “technically reviewed” by the State CODIS approved laboratory Who Cannot Enter Data into CODIS?

What type of information is compared in CODIS? Convicted Offender Samples Arrestee Samples (in 25 States) Unknown Forensic Crime Scene Samples Unidentified Human Remains

What type of information CANNOT be compared in CODIS? Suspect profiles Volunteers profiles Arrestee (in 25 States) Known Forensic Crime Scene Samples

The National DNA Index (NDIS) contains The National DNA Index (NDIS) contains ◦ participating laboratories ◦ over 9,875,100 offender profiles ◦ 1,216,400 Arrestee profiles ◦ 447,300 forensic profiles ◦ 187,700 hits ◦ 180,000 Investigations aided CODIS Statistics

◦ Most Crime is Local ! ◦ Property crimes are the most recidivistic crimes ◦ Criminals usually offend repeated in the same area ◦ Burglars break into one house in a neighborhood then move to the next house - not the next state So why a Local DNA Database?

◦ DNA is only an effective investigative tool if the DNA analysis is performed quickly enough to be of value ◦ Investigators cannot “stop” investigating while they wait for results from over worked public labs ◦ No time or money is saved if turn around time for results beyond several weeks ◦ CODIS restrictions on private laboratories extend the length of time and money it costs to get a profile into the database system So why a Local DNA Database?

◦ CODIS rules and guidelines restrict the kinds of profiles that can be entered into the database ◦ For example ◦ Suspects cannot be entered ◦ Known forensic profiles cannot be entered ◦ Law Enforcement agencies have little control over the database with CODIS ◦ Local databases are driven by the local agency not federal authorities So why a Local DNA Database?

Comparison of Local Databases and CODIS Local Databases Are specifically designed to solve crime locally and are governed by criteria set by the investigating agency Maximize the investigative value of forensic DNA technology Focuses 100% of financial and personnel resources on local agencies’ crimes and perpetrators. Can provide rapid turn-around time for DNA profile and database search results thereby solving and preventing crimes quickly. CODIS Emphasizes a national crime fighting network and is governed by rules established by Federal authorities Can restrict the investigative potential of forensic DNA technology Spreads resources across state and national systems diluting the local crime fighting impact. Usually places DNA evidence in a long line of backlogged cases limiting the investigative and crime prevention value of DNA

Comparison of Local Databases and CODIS Local Databases Provide database search results directly to investigating officers Empower investigators to determine their own criteria for DNA testing and database inclusion Empower local investigators to set priorities for when evidence gets tested Direct access by investigators allows them to perform follow-up searches when new information becomes available. CODIS Restricts database access to a small number of state and federal officials Restricts database use to policies established by the federal and state authorities Subjects local departments to state laboratory established testing priorities and whether or not the state laboratory will test at all. Investigators have NO direct access requiring investigators to contact state officials and wait for a reply as to whether a search can even be performed

National Institute of Justice sponsored Property Crime Experiment Twice as many suspects identified with DNA Twice as many suspects identified with DNA Twice as many cases accepted for prosecution Twice as many cases accepted for prosecution DNA is 5 x as likely to ID a suspect compared with fingerprints DNA is 5 x as likely to ID a suspect compared with fingerprints Suspects identified by DNA had at least twice as many prior felony arrests and convictions Suspects identified by DNA had at least twice as many prior felony arrests and convictions Material collected by technicians is no more likely to result in a suspect being identified than material collected by patrol officers. Material collected by technicians is no more likely to result in a suspect being identified than material collected by patrol officers.

Burglary Denver Project identified over 40 prolific burglars since November 1, A prolific burglar commits an average of 243 cases per year. A prolific burglar commits an average of 243 cases per year. When DNA is recovered, the prosecution rate is 5 X higher When DNA is recovered, the prosecution rate is 5 X higher Average sentence for burglars linked to DNA is over 12 years in prison (6 months without DNA evidence). Average sentence for burglars linked to DNA is over 12 years in prison (6 months without DNA evidence). After police arrested one man - who later admitted to over 1000 burglaries – the burglary rate in the West Washington Park neighborhood dropped about 40%. After police arrested one man - who later admitted to over 1000 burglaries – the burglary rate in the West Washington Park neighborhood dropped about 40%.

Conclusion  CODIS provides an important national tool for fighting crime  However, some of the restrictions imposed by the CODIS system restrict the investigative value of DNA Databases  Local DNA databases can maximize the investigative value of DNA technology by placing the databasing technology directly in the hands of police and encouraging fatster turnaround time

Taking Control: Less Taxpayer Funding - More DNA Testing

Bensalem Township Pennsylvania Population 90,000 Suburban / Urban Borders Philadelphia 21 Square miles Bensalem Police Department 103 sworn officers 68 admin personnel Crime rate 318 Average Burglaries per year 598 Average thefts from auto 179 Average auto thefts 149 Narcotics investigations

History of the Bensalem Property Crimes Local DNA Database First presented with the concept in Fall of ‘09 Were previously unaware of the potential for use of DNA in property crimes Unaware of the ability to create a local database Visited Palm Bay, Florida Police Department Had implemented a local database 3 years previously.

Funding Options Considered Federal Grants Federal Grants Would take too long Would take too long No guarantee of success No guarantee of success Drug Forfeiture Funds Drug Forfeiture Funds Can use in drug cases Can use DNA in drug cases More successful drug prosecutions with DNA would lead to more forfeitures More successful drug prosecutions with DNA would lead to more forfeitures

Why not use the state lab and state database? State Laboratory State Laboratory Does not take property cases Does not take property cases Turn around time is too long Turn around time is too long State Database system State Database system Does not accept suspects profiles Does not accept suspects profiles Subject to FBI cases acceptance guidelines Subject to FBI cases acceptance guidelines Requires technical review of private lab profiles extending length of time and cost Requires technical review of private lab profiles extending length of time and cost

Administrative Team Responsibilities Coordinate Training of all personnel Determine which samples will be sent to the laboratory Coordinate policy development with District Attorney’s Office Evaluate collections to ensure consistency and legality Act as Liaison with laboratory Ensure match follow-up

Collection Protocols Suspect Collections Evidence Collections Evidence Triage

Statistics After One Year Total number of reference and evidence samples collected Total number of reference and evidence samples collected reference samples 2200 reference samples 1600 evidence samples 1600 evidence samples Total number of reference and evidence profiles in database Total number of reference and evidence profiles in database reference profiles 1000 reference profiles 800 evidence profiles 800 evidence profiles Percentage of evidence samples sent to the lab yielding no DNA result. Percentage of evidence samples sent to the lab yielding no DNA result. 23% 23%

Statistics After One Year Collected 3587 reference samples Collected 3587 reference samples 1750 profiles in the database Collected 3225 evidence samples Collected 3225 evidence samples 1815 profiles in the database 1815 profiles in the database 75 cases where DNA evidence has been a direct and substantial factor in the disposition 75 cases where DNA evidence has been a direct and substantial factor in the disposition 6 cold hits 6 cold hits

Breakdown of Investigations Involving Local Database Hits Narcotics – 17 cases Narcotics – 17 cases Property Crimes – 12 cases Property Crimes – 12 cases Violent Crimes – 5 cases Violent Crimes – 5 cases Other – 3 cases Other – 3 cases 5 cases involved handguns where DNA was obtained from the gun and matched the suspect. 5 cases involved handguns where DNA was obtained from the gun and matched the suspect.

Case Example # 1 Constructive Possession with Multiple Suspects   30 vials of crack discovered in rear of transport van after a transport of 5 suspects   All suspects denied possession but consented to buccal swabs   Exterior of glassine baggie swabbed   One of the suspect’s DNA profile matched DNA profile from baggie

Case Example # 2 Stolen Vehicle / Hit and Run Accident investigation   Unknown suspect fled the scene of an accident prior to police arrival.   Abandoned vehicle was determined to be stolen.   Blood droplets located inside the vehicle and swabbed by scene officers.   DNA profile from blood droplets matched profile from suspect in the database because of a Previous disorderly conduct arrest.

Case Example # 3 Armed Robbery Investigation   Unknown suspect robbed a 7 Eleven at gunpoint and fled on foot.   Responding officers located a suspect matching actor’s description   Hand gun was found hidden in a trash can a short distance away and swabbed for DNA   Suspect provided a consensual buccal swab   DNA analysis matched suspect’s DNA to DNA identified on the gun

Case Example # 4 Burglary / Criminal Trespass Investigation (Blind Hit)   Officers responded to a residential burglary   Responding officers processed scene and collected discarded cigarette butt   There were NO investigative leads   DNA profile developed from cigarette butt   DNA matched profile of suspect previously arrested for a weapons offense   Suspect confessed and implicated two other actors who also subsequently confessed as well

Case Example # 5 Narcotics Investigation / Possession with Intent to Deliver   Officers discover hidden compartment in vehicle during a traffic stop   Driver denied any awareness of a hidden compartment   Driver of vehicle provides consensual buccal swab   12 Kilograms of cocaine were found in the hidden compartment.   DNA swabs taken from cocaine packaging   DNA from the packaging matched the driver.

The Future Taking the program County-wide Taking the program County-wide County District Attorney driven application for funding from the County Redevelopment Authority County District Attorney driven application for funding from the County Redevelopment Authority Gambling Money Gambling Money

“Rapid” DNA Testing How long until it’s a reality? How long until it’s a reality? How fast is fast? How fast is fast? Who will be in charge? Who will be in charge? Where will we be testing? Where will we be testing? What will we be testing? What will we be testing?

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