April 23, 2022

Evaluate the evolution of forensic science, focusing on the types of scientific analysis conducted in crime laboratories. Explain how the chang

From the text:
- Chapter 5: Forensic Toxicology
- Chapter10: Blood and Other Biological Fluids
- Chapter 11: DNA Analysis

Evaluate the evolution of forensic science, focusing on the types of scientific analysis conducted in crime laboratories.
Explain how the changes in science and evidence processing over the last century have affected the criminal justice system.
Describe at least four major types of scientific testing conducted by crime laboratories.
Describe the evidentiary value of the four major testing processes identified.
Analyze the current standards (based on case law) for admitting scientific evidence at trial, specifically addressing the four types of scientific testing identified in your paper.

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Chapter 5

Pretrial Forensic Issues

DNA Databases

The DNA Identification Act of 19941 mandated the creation of the FBI's Combined DNA Index System ("CODIS") forensic DNA database. CODIS is a "computer software program that operates local, state, and national databases of DNA profiles from convicted offenders, unsolved crime scene evidence, and missing persons."2 All fifty states mandate DNA databases of some sort, although the types of crimes that require inclusion in a DNA database vary from state to state.3 In 2004, the Justice for All Act4

significantly increased funding for the use of DNA in the criminal justice system, including an expansion of CODIS to allow state crime laboratories to include even more persons in the database. The Act's DNA backlog grant program authorized $755 million in grants over five years. This created significant expansions of previous police databases, which had primarily focused on fingerprints. CODIS now includes what has been estimated to be over five million DNA samples.5

CODIS DNA databases are searched for matches based on specimens collected at a crime scene to identify a potential perpetrator. While these searches are often used in serious cases of murder, rape, or robbery, it has been suggested that they should be used to solve multiple minor crimes.6

There is a debate about the scope and use of these DNA databases. The debate focuses on which crimes should prompt a DNA sample collection and the stage in the criminal process at which DNA samples should be taken from defendants. On the one hand, some suggest that the largest possible database is an important tool in law enforcement and that a government DNA database should be collected and

Shelton, Donald E.. Forensic Science Evidence : Can the Law Keep Up with Science, LFB Scholarly Publishing LLC, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/ashford-ebooks/detail.action?docID=1057854. Created from ashford-ebooks on 2022-04-22 18:03:55.

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50 Forensic Science Evidence

maintained on the entire population. There is no universal DNA database system but clearly the trend is to expand the breadth of genetic criminal identification databases, from violent felons, to felons, to misdemeanants. Other questions about DNA sampling include: (1) at what stage in the process DNA samples are taken (arrest, indictment, or conviction); and (2) what should happen to DNA samples after acquittal or dismissal?7 At least twenty-one states have enacted statutes requiring DNA sampling at felony arrests, before any guilt has been established even preliminarily.8

A recent report to Congress summarized the legal status of mandating the taking of DNA samples:

As DNA database programs have widened in scope and grown in numbers, their consistency with the Fourth Amendment’s prohibition on unreasonable searches and seizures has increasingly been challenged. In the context of compulsory DNA collection, courts have widely upheld laws mandating the collection of DNA from persons who were convicted and are subject to the penal system’s custody or supervision. However, no judicial consensus has emerged regarding the constitutionality of mandating DNA collection from arrestees who have been criminally indicted. Instead, courts have split over the existence and scope of an arrestee’s reasonable expectation of privacy and the degree of privacy intrusion caused by DNA sampling. The limited number of court decisions in this area also suggests that there are conflicting opinions about the analogousness of DNA collection and fingerprinting.9 For its part, Congress has determined that the DNA of all federal

arrestees should be obtained. Amendments to the DNA Act in 200610, as implemented recently by Attorney General Regulations,11 allows the collection of samples from all arrestees. In United States v. Pool12 the Ninth Circuit held that mandating DNA samples from arrestees did not violate the Fourth Amendment, but that Court subsequently granted an en banc rehearing of the issue.13 The Third Circuit took a definitive stand in United States v. Mitchell holding that "under the totality of the circumstances, given arrestees' and pretrial detainees' diminished expectations of privacy in their identities and the Government's

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Pretrial Forensic Issues 51

legitimate interests in the collection of DNA from these individuals, we conclude that such collection is reasonable and does not violate the Fourth Amendment".14 The Supreme Court has not yet spoken to the issue.

Many people are concerned about the threat of eugenics posed by continuing to enlarge the scope of DNA databases. Their concern is that genes contain information about the racial and ethnic heritage, disease and mental illness susceptibility, and even behavioral tendencies, of every person in the database. In this respect, they point out that DNA databases are inherently different than the fingerprint databases that law enforcement has maintained for many years and which are useful only for identification purposes.15

Recently, such concerns have been heightened by the use of DNA

databases to locate potential relatives of an unidentified suspect. An "indirect genetic kinship analysis" uses crime scene DNA to search the convicted offender/arrestee DNA databases to identify not just the perpetrator, but also any biological relatives of the potential suspect.16 Familial searching of large DNA databases has the potential to develop valuable investigative leads regarding the source of a forensic sample so that police can narrow their investigation to a small range of related suspects. Familial searches are specifically authorized in Colorado17 and California18 and its apparently successful use in identifying an alleged serial killer has heightened interest in expanding the process.19 Congress is apparently favorably considering legislation that would encourage the FBI to expand its use of familial DNA searches, subject to "appropriate protections for the privacy rights of those in the NDIS database". 20 Familial searching does raise compelling policy questions that the legislatures and the courts have yet to definitively answer.21

The danger opponents see is that this personal, private health data will be used for a variety of discriminatory and currently unlawful purposes. This debate poses what many see as a conflict between public safety and individual privacy. Some maintain that balancing these conflicting interests is ultimately a political issue and that privacy interests are best protected through regulatory control over the law enforcement agencies that have access to the DNA databases.22

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52 Forensic Science Evidence

Search Issues

DNA database issues may most often present themselves in pretrial motions alleging that they are the result of unlawful searches and seizures in violation of the Fourth Amendment. Generally, such motions have failed. The federal courts have consistently ruled that the federal statute and various state statutes mandating the taking of DNA samples for law enforcement databases are not constitutionally infirm.23

The physical gathering of a DNA specimen from a suspect for DNA testing is, of course, governed by the same Fourth Amendment constraints that apply to any seizure, and the DNA purpose of that seizure does not change that analysis. Statutes of Limitations and "John Doe" Warrants

One of the side effects of the use of newly developing DNA techniques and ever- expanding DNA databases in "cold" cases is an often lengthy delay in charging a defendant whose identity is finally revealed by that DNA comparison. Applicable statutes of limitation may well have expired in the interim. In response, federal and state legislatures have begun to revise the statutory limitation periods.24

The Justice for All Act of 200425 that expanded the CODIS database also extended the federal statute of limitations in cases which DNA testing implicates a perpetrator until the time that the actual identity of the perpetrator is discovered. Several states have similarly extended some periods of limitations, including "Colorado, Florida, Indiana, Michigan, Nevada, New Jersey, and New York."26 Many states have created special statutory limitation extensions applicable to sexual assault cases.27 A myriad of additional extensions and modifications of state limitations periods are currently under consideration.28 The proposals range, for example, from eliminating the limitations period entirely for certain offenses29 to extending the statute when DNA evidence is recovered at a crime scene but the evidence does not currently match anyone in the DNA database.30

Additionally, prosecutors in several states have tried to toll the

statute of limitations by filing a criminal complaint and warrant naming "John Doe" as the defendant and identifying him by the DNA profile obtained from a crime scene specimen. Prosecuting attorney

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Pretrial Forensic Issues 53

organizations and the Justice Department are encouraging the filing of such "John Doe" warrants.31 These warrants were first originated in Wisconsin in 1999 but are now being used by prosecutors in many other jurisdictions.32 Federal and some state statutes have specifically authorized the use of such warrants.33 The legal issue is whether such warrants or indictments sufficiently identify the defendant so as to toll the statute of limitations. The Fourth Amendment requires that warrants particularly describe the person to be seized.34 The Federal Rules of Criminal Procedure require that an arrest warrant "contain the defendant’s name or, if it is unknown, any name or description by which the defendant can be identified with reasonable certainty."35 Most states have similar requirements.36

"John Doe" warrants without further identifying information are clearly constitutionally insufficient,37 even when they contain some physical description such as race, height, or weight.38 Prosecutors contend, however, that including the DNA profile not only meets but exceeds the reasonable certainty requirement because the profile can only identify one person. Defense lawyers disagree on the basis that "DNA samples will degrade over time, even under optimal conditions and errors in the collection, handling and storage of DNA samples can result in errors in identification."39 Defense lawyers assert that nameless DNA warrants do not meet the requirement of reasonable certainty and that allowing such John Doe warrants vitiates their rights under the applicable statute of limitations.

Courts which have reviewed John Doe DNA warrants have generally upheld their validity.40 As the Supreme Court of Massachusetts recently put it, "[w]here a general John Doe indictment, bereft of any particularity, must fail as generally anonymous, the converse is true of a DNA indictment: it prevails as precisely eponymous".41

Defense Discovery and Requests for Assistance

The increase in the use of forensic scientific evidence by the government also heightens the need for the defense in a criminal case both to investigate and respond to the government's evidence and possibly to affirmatively seek forensic evidence of its own.

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54 Forensic Science Evidence

Preliminarily, this means that the defense will seek to discover the test results obtained by the government as soon as possible. Unfortunately, many government crime laboratories are simply incapable of performing forensic tests within a reasonable period of time.

In 2002, the federal government estimated that state crime laboratories "ended the year with over 500,000 backlogged requests for forensic services—a more than seventy percent increase in the backlog of requests compared to the beginning of the year."42

They also “estimated that about 1,900 additional FTEs [full time equivalent personnel] would have been needed to achieve a 30-day turnaround for all 2002 requests for forensic services . . . [and the] estimated cost of the additional FTEs exceeds $70.2 million.”43

More recently, the federal government estimates that, just as to DNA, there was a national backlog of 100,628 DNA cases as of January 1, 2009, which grew to 111,647 by the end of the year.44 The backlogs have also resulted in some very high profile mistakes, delays and even closures at police laboratories.45 The federal government has recognized the problem and initiated a program designed to assist States in reducing the backlog, at least as it relates to DNA testing46 but it remains a significant problem.47

Often laboratories seem to base the priorities for testing on the proximity of a trial date, and defense attorneys rightly complain that this leaves them with little time to prepare a response or even to responsibly advise their clients about the weight of the evidence against them. In its simplest form, this may come before the trial court as a defense motion to compel or enforce discovery. It may even come up in a motion to reduce bond based on an assertion that the laboratory results may be exculpatory.48

Ultimately, if the prosecution fails to produce the test results in spite of a court order, the judge may have to hear a request for a variety of sanctions against the prosecution.

Some states have enacted statutes to relieve the pressure on their crime laboratory personnel by specifically allowing the admission of laboratory reports in lieu of the testimony of the persons who performed the testing. Those laws were struck down by the Supreme Court in Melendez-Diaz v. Massachusetts.49 The Court held that laboratory reports are indeed "testimonial" under the Supreme Court's prior holdings in Crawford v. Washington50 and Davis v. Washington.51 Therefore it was a violation of the Sixth Amendment right of confrontation to allow the government to submit a chemical drug test

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Pretrial Forensic Issues 55

report without the testimony of the scientist. Since Melendez-Diaz, the holding has been applied to other forensic evidence reports as well, including DNA testing reports.52 However, the scope of the close ruling in Melendez-Diaz remains a current topic in the courts. In Bullcoming v. New Mexico53 the Supreme Court applied Melendez- Diaz to strike down the admissibility of a blood-alcohol laboratory report, when the accompanying testimony was from a laboratory technician who did not perform the analysis or write the report. In Williams v. Illinois54 the Supreme Court is considering whether the a report from an independent laboratory and accompanying testimony from a state analyst who reviewed the data also violates the confrontation clause. It has been common for experts to testify about DNA matches though they did not actually perform the testing and the court's decision in Williams could end that practice.

The Supreme Court, however, has left open a different option which would be constitutional. Justice Scalia, writing for the majority, stated that alternative "notice and demand" laws which require the prosecution to provide notice to the defendant of its intent to use an analyst's report, and give the defendant a period of time in which he may object to the admission of the evidence or forfeit that objection, are permissible. Given the already existing backlog and demands on state crime laboratories,55 many states are quickly trying to follow up on that suggestion.56

Aside from the issue of the admissibility of laboratory reports, a defendant has a constitutional right of confrontation to examine the evidence against him, and that would include the specimens used in laboratory tests as well as the details of the testing performed on those specimens. The discoverable materials at the pretrial stage would certainly include more than just the laboratory report. Pretrial discovery would normally include a right by the defense to obtain, and perform its own testing and analysis on, the specimen. The circumstances of that examination, especially when the evidence is subject to contamination or even consumption, often may be tightly controlled by the terms of a discovery order. Note, however, that the failure of the police to preserve a specimen may not amount to a constitutional violation absent a showing of police bad faith.57

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56 Forensic Science Evidence

Indigent defendants clearly have the same discovery rights. Trial judges often, however, have to address the desire of indigent defendants to retain defense experts for analysis and testimony. In Ake v. Oklahoma,58

the Supreme Court of the United States established that an indigent defendant in a criminal case has a constitutional right to the assistance of publicly funded experts.59 Some commentators believe that the right granted by the Supreme Court in Ake has proven to be illusory in practice.

In determining whether the court must make public funds available for a defense expert witness, the trial judge must consider the probable value of the expert analysis to the defense. Public funding is required when the issue is likely to be significant in the trial. The burden is on the defense to show that the expert is necessary.60 However, at the least, when the prosecution has conducted a forensic examination of evidence, the defense would clearly seem to be entitled to its own similar expert examination of that evidence.

1 The DNA Identification Act of 1994, Pub. L. 103-322, 108 Stat. 2065 (1994). 2 Nat’l Inst. of Justice, U.S. Dep’t of Justice, Using DNA To Solve Cold Cases 9

(2002), available online at http://www.ncjrs.gov/pdffiles1/nij/194197.pdf (last visited December 14, 2011).

3 Id. 4 42 U.S.C. § 14135(j) (2006 & Supp. 2007). 5 Matejik, Laura, DNA Sampling: Privacy and Police Investigation in a Suspect

Society, 61 Ark. L. Rev 53 (2008). 6 Nat’l Inst. of Justice, U.S. Dep’t of Justice, DNA in "Minor Cases" Yields

Major Benefits in Public Safety, in In Short: Toward Criminal Justice Solutions, Nov. 2004, at 1, 3, available online at http://www.ncjrs.gov/pdffiles1/nij/207203.pdf (last visited December 14, 2011).

7 For a discussion of some of these issues, see Cole, Simon A., Fingerprint Identification and the Criminal Justice System: Historical Lessons for the DNA Database, in DNA and the Criminal Justice System: the Technology of Justice, ed. David Lazer, (2004), at 80-84.

8 DNA Research Report, Domestic DNA Legislation, available online at http://www.dnaresource.com/documents/2007DNAExpansionLegislation.pdf

(last visited December 14, 2011).

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9 Barbour, Emily C., DNA Databanking: Selected Fourth Amendment Issues

and Analysis, Congressional Research Service No. 7-5700 (June 6, 2011), available online at http://fulltextreports.com/2011/07/19/crs-dna- databanking-selected-fourth-amendment-issues-and-analysis/ (last visited November 17, 2011).

10 DNA Fingerprint Act, 42 U.S.C. § 14135a(a)(1)(A). 11 28 C.F.R. § 28.12, 73 Fed. Reg. 74932 (eff. Jan. 9, 2009). 12 United States v. Pool, 621 F.3d 1213 (9th Cir. 2010). 13 United States v. Pool, ___ F.3d ___, 2011 WL 2151202, at *1 (9th Cir. June

2, 2011). 14 United States v. Mitchell, ___ F.3d ___ (3d Cir. No. 09-4718, July 25,

2011). 15 See Steinhardt, Barry, Privacy and Forensic DNA Data Banks, in DNA And

The Criminal Justice System: The Technology Of Justice, ed. David Lazer, (2004) at 173: and Preston, Corey, Faulty Foundations: How the False Analogy to Routine Fingerprinting Undermines the Argument for Arrestee DNA Sampling, 19 Wm. & Mary Bill Rts. J. 475 (2010).

16 See Bieber, Frederick R, Charles H. Brenner, and David Lazer, Finding Criminals Through DNA of Their Relatives, Science: Vol. 312 no. 5778 pp. 1315-1316, (June 2, 2006) available online at http://www.sciencemag.org/content/312/5778/1315.citation (last visited November 18, 2011); and Ge, Jianye, Ranajit Chakraborry, Arthur Eisenberg and Bruce Budowle, Comparisons of Familial DNA Database Searching Strategies, J. Forensic Sci.Vol.56, No. 6 (November 2011).

17 Colorado Bureau of Investigation, DNA Familial Search Policy (October 22, 2009), available online at http://www.denverda.org/DNA/Familial_DNA_Database_Searches.htm (last visited December 14, 2011).

18 Information Bulletin from Edmund G. Brown, Jr., Attorney General, DNA Partial Match (Crime Scene DNA Profile to Offender) Policy No. 2008-BFS- 01 (2008), available online at http://ag.ca.gov/cms_attachments/press/pdfs/n1548_08-bfs-01.pdf (last visited November 19, 2011).

19 Steinhauer, Jennifer, ‘Grim Sleeper’ Arrest Fans Debate on DNA Use, N.Y. Times, July 2, 2010, available online at

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58 Forensic Science Evidence

http://www.nytimes.com/2010/07/09/us/09sleeper.html (last visited November 19, 2011).

20 The House and Senate have approved a Conference Report that states "The Committee encourages the FBI to undertake activities to facilitate familial DNA searches of the National DNA Index System (NDIS) database of convicted offenders, and work with the NDIS Procedures Board to consider the establishment of procedures allowing familial searches only for serious violent and sexual crimes where other investigative leads have been exhausted. The procedures should provide appropriate protections for the privacy rights of those in the NDIS database." Commerce, Justice, Science and Related Agencies Appropriations Bill, 2012, House Report 112- 169, 112th Congress (2011-2012) available online at http://thomas.loc.gov/cgi- bin/query/z?c112:H.R.2596 (last visited November 26, 2011) . See Schiff, Adam, Schiff’s Familial DNA Language Passes as Part of Conference Report, Press Release (Nov. 21, 2011) available online at http://schiff.house.gov/index.cfm?sectionid=49&parentid=6&sectiontree=6,4 9&itemid=869 (last visited November 26, 2011).

21 See Ram, Natalie, Fortuity and Forensic Familial Identification, 63 Stan. L. Rev. 751 (2011); and Murphy, Erin, Relative Doubt: Familial Searches of DNA Databases, 109 Mich. L. Rev. 291 (2010) arguing for the prohibition or at least restriction of familial database searches.

22 See Etzioni, Amitai, A Communitarian Approach: A Viewpoint on the Study of the Legal, Ethical and Policy Considerations Raised by DNA Tests and Databases, 34 J. L. Med. & Ethics 214, 219-20 (2006).

23 See, e.g., Jones v. Murray, 962 F.2d 302, 308 (4th Cir. 1992). 24 For a general description of statute of limitations issues relating to DNA, see

Imwinkelried, Edward J., The Relative Priority That Should Be Assigned to Trial Stage DNA Issues, in DNA And The Criminal Justice System: The Technology Of Justice, ed. David Lazer, (2004); Diehl, Jonathan W. , Note, Drafting a Fair DNA Exception to the Statute of Limitations in Sexual Assault Cases, 39 Jurimetrics J. 431 (1999); and Dunn, Amy, Note, Criminal Law—Statutes of Limitation on Sexual Assault Crimes: Has the Availability of DNA Evidence Rendered Them Obsolete?, 23 U. Ark. Little Rock L. Rev. 839 (2001).

25 Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260 (2004). 26 Imwinkelried, Edward J., The Relative Priority That Should Be Assigned to

Trial Stage DNA Issues, in DNA and the Criminal Justice System: The

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Pretrial Forensic Issues 59

Technology of Justice, ed. David Lazer, (2004) at 94, 103 n.26.

27 For a listing of legislative enactments by state, see Nat’l Conference of State Legislatures, Statute of Limitations for Sexual Assaults (2007), available online at http://www.ncsl.org/default.aspx?tabid=12723 (last visited December 14, 2011). For a discussion of early statutory limitation changes in response to DNA developments, see Ulmer, Frank B., Note, Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments, 58 Wash. & Lee L. Rev. 1585 (2001).

28 For an updated list of DNA related state statute of limitation proposals, see Gordon Thomas Honeywell Gov’t Affairs, 2008 Statute of Limitations DNA Legislation (2008), available online at http://www.dnaresource.com/documents/2008StatuteofLimitationsLegislatio n.pdf (last visited December 14, 2011).

29 Id. 30 Id. 31 See Nat’l Inst. of Justice, U.S. Dep’t Of Justice, Using DNA To Solve Cold

Cases 9 (2002), at 22, available online at http://www.ncjrs.gov/pdffiles1/nij/194197.pdf (last visited December 14, 2011).

32 See Akehurst-Moore, Scott, An Appropriate Balance?–A Survey and Critique of State and Federal DNA Indictment and Tolling Statutes, 6 J. High Tech. L. 213, 216 (2006); and Ulmer, Frank B., Note, Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments, 58 Wash. & Lee L. Rev. 1585 (2001), at 1586-88.

33 See, e.g., 18 U.S.C. § 3282 (2006); Ark. Code Ann. §§ 5-1-109(b)(1)(B), (i)- (j) (2006); Del. Code Ann. Tit. 11, § 3107 (2007); Mich. Comp. Laws § 767.24(2) (2008); N.H. Rev. Stat. Ann. § 592-A:7(II) (Supp. 2008).

34 U. S. Const. amend. IV; Frank B. Ulmer, Note, Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments, 58 Wash. & Lee L. Rev. 1585 (2001), at 1600.

35 Fed. R. Crim. P. 4(b)(1)(A); Frank B. Ulmer, Note, Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments, 58 Wash. & Lee L. Rev. 1585 (2001),at 1600-01.

36 Ulmer, Frank B. , Note, Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments, 58 Wash. & Lee L. Rev. 1585 (2001), at 1600-01.

Shelton, Donald E.. Forensic Science Evidence : Can the Law Keep Up with Science, LFB Scholarly Publishing LLC, 2012. ProQu

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Evaluate the evolution of forensic science, focusing on the types of scientific analysis conducted in crime laboratories. Explain how the chang

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