Legislative Update: State and Federal Developments. Presented by Lisa Hurst, Gordon Thomas Honeywell Governmental Affairs. July 9, 2014. Life Technologies HID University, South San Francisco

1. Legislative Update
State and Federal Developments
Presented by Lisa Hurst
Gordon Thomas Honeywell Governmental Affairs
July 9, 2014

2. SOLVE CRIMES
PREVENT CRIMES
SAVE LIVES
Statute of Limitations
Post Conviction DNA Access
Evidence Retention Policies
Death Penalty Sentences
John Doe Warrants
Chemical Castration
Criminal Paternity / Statutory Rape
Defense Access to CODIS
DNA Database Expansion
DNA Program Funding
Rape Kit Backlog

3. RAPE KIT BACKLOG
What Differentiates DNA From
Other Forensic Disciplines?
Scientific Rigor? Judicial Scrutiny?
Source Attribution?
Development of DNA profiles from diverse
biological samples – especially semen
Rape Kits are uniquely countable

4. DEBBIE SMITH DNA BACKLOG
ELIMIANTION ACT (III)
Debbie Smith DNA Backlog
Elimination Act
$151 million
authorized / year
since 2004
$75 Million
Grant to public
DNA labs
FY 2013 - $2 Million to GA
Enactment prior to October 1, 2014 ensures federal grant program may continue

5. KATIE SEPICH ENHANCED DNA COLLECTION ACT
One-time funding for
states with arrestee
DNA database laws
Authorized up to $10
million per year FY
2013-2015
DUE August 7
OTHER GRANT OPPORTUNITIES
SAFER
Funding for rape kit
audits (non-lab)
Tracking component
Solicitation likely in FY
2015
SOLVING COLD CASES
Review and testing of
cases with possible
biological evidence
$3-$5 Million (est)
Solicitation in FY 2014
(biannual)
DUE May 27

6. US SENATE:
JUSTICE FOR ALL ACT – S.822
Sen. Mitch McConnell (R-KY)
Minority Leader
Sen. John Cornyn (R-TX)
Minority Whip
Sen. Patrick Leahy (D-VT)
President Pro Tem
Sen. Richard Burr (R-NC)
Sen. Susan Collins (R-ME)
Sen. Chris Coons (D-DE)
Sen. Diane Feinstein (D-CA)
Sen. Al Franken (D-MN)
Sen. Orrin Hatch (R-UT)
Sen. Amy Klobuchar (D-MN)
Sen. Mary Landrieu (D-LA)
Sen. Rob Portman (R-OH)
Sen. Charles Schumer (D-NY)
Sen. Tom Udall (D-NM)
Co-Sponsors

7. US HOUSE:
DEBBIE SMITH REAUTHORIZATION ACT
HR 4323
Rep. Jim Sensenbrenner (R-WI)
Crime Subcommittee Chair
Rep. Ted Poe (R-TX)
Victims Rights Caucus Chair Rep. Carolyn Maloney (D-NY)
Original Debbie Smith Author
Rep. Conyers (D-MI)
Judiciary Ranking Member
Rep. Bobby Scott (D-VA)
Judiciary Ranking Member
Rep. Goodlatte (R-VA)
Judiciary Chair
Rep. Bass (D-CA)
Judiciary Committee Member
Co-Sponsors

8. Debbie Smith DNA Backlog
Elimination Act

9. CURRENT STATUS
April 2013
Introduced
November 2013
Passes Senate Committee
March 28
Passes Senate Democrats
April 7
Republican “hold”
March 27
Introduced
April 3
Passes House Committee
April 7
Passes House Unanimously
April 8
Approved by Senate
Republicans

10. “Debbie Smith is an extraordinary woman
and an effective advocate," Senate
Minority Leader Mitch McConnell, R-Ky.,
told the Washington Examiner. "She's
personally asked me, John Cornyn and
others to pass this critically important
legislation that bears her name, and it's
deeply disappointing that the majority
leader is blocking it from reaching the
president's desk. I will fight to get this done
for the sake of Debbie and sexual assault
victims everywhere.”

11. Unsubmitted
Kits Backlogged
Kits
Crime
Labs
Local
Law
Enforcement
Potential for significant “growth” in backlogs,
opportunities for new technologies and processes
UNITED STATESUNTESTED RAPE KITS

12. UNSUBMITTED RAPE KITS
How Many Are There?
Los Angeles 10,000
Detroit 11,000
Memphis 12,000
Texas 20,000
Illinois 4,000
Phoenix 3,000
Cuyahoga Co (OH) 4,000
Alameda Co (CA) 2,000
66,000

13. Retained law firm in mid 2014 to assist with open records requests
Targeting 15 locations to determine number of unsubmitted kits
2009
2010
Illinois Sexual Assault Evidence Submission Act of 2010
Los Angeles begins testing all old kits. New policy to test all kits collected.

14. CASE STUDY: MEMPHIS

15. o Lack of resources – money, staff
o CODIS, DNA testing not available
o Not-probative - known offender
o Uncooperative / unavailable victim
o Lack of knowledge about DNA,
databases, sex offender patterns
o Not taking sexual assault seriously
o Not believing or blaming victims
Reasons for Unsubmitted Kits

19. STATE SOLUTIONS:
TENNESSEE LEGISLATION - 2014
HB 1388 SB 1426
6 day submission for new kits
6 months for DNA analysis
July 2015 report on unsubmitted kits
Jan 2016 report to Legislature
July 1, 2014 report on unsubmitted kits
September 2014 report to legislature
COST: $10 Million year-one, $2 million
recurring
COST: Minimal, no fiscal note
Memphis area NOT Memphis area
HELD OVER ENACTED

20. COLORADO
Statewide policy
Timeliness
Audit / Inventory
Funding
TEXAS
Statewide policy
Timeliness
Audit / Inventory
Funding
ILLINOIS
Statewide policy
Timeliness
Audit / Inventory
LOUISIANA
Audit / Inventory
TENNESSEE
Audit / Inventory
VIRGINIA
Audit / Inventory
MICHIGAN
Statewide policy
Timeliness
Audit / Inventory
UTAH
Victim Notification
STATE RESPONSES: RAPE KIT BACKLOG LAWS

22. FY 2015 FUNDING…
$35 million Reducing rape kit backlog
• Support inventories of untested kits
• Sexual Assault Kit testing
• Needs assessment of current law enforcement
training needs for Sexual Assault investigations
• Assessment of “test all kits”
• Evidence tracking systems
PRESIDENT’S BUDGET

23. • Prosecution and investigator resources for following up on
Sexual Assault Kit outcomes
• Strengthening cold case units
• Enhancing communications of evidence status between
prosecutors, investigators and labs
• Law enforcement training in neurobiology of trauma for
victims of sexual assault
• Development of victim notification procedures
• Enhancement of victim services
• Research on preventing sexual assault and improving
system’s response
• Effectiveness of SANE/SART programs
• Research on best allocation of resources for victim
services

24. Congress poised to approve $41 million to help clear
backlog of untested rape kits
June 16, 2014
House Proposal
$36 million (increased to $41 million – Cohen amendment)
Requires funds be used for front-end law enforcement purposes that have a
direct impact on reducing untested kits
 MORE likely funds could be used for crime lab analysis
 Implementation of SAFER Act
Senate Proposal -- $41 million
Follows White House blueprint
 LESS likely funds could be used for crime lab analysis

25. DNA DATABASE EXPANSION

26. KING V. MARYLAND
THE MAJORITY OPINION
Kennedy - Reagan
and they bring the suspect to the station to be
detained in custody, taking and analyzing a
cheek swab of the arrestee’s DNA is, like
fingerprinting and photographing, a legitimate
police booking procedure that is reasonable
under the Fourth Amendment.
When officers make an arrest supported by
probable cause to hold for a serious offense

27. KING V. MARYLAND
THE MAJORITY OPINION
Kennedy - Reagan
and they bring the suspect to the station to be
detained in custody, taking and analyzing a
cheek swab of the arrestee’s DNA is, like
fingerprinting and photographing, a legitimate
police booking procedure that is reasonable
under the Fourth Amendment.
When officers make an arrest supported by
probable cause to hold for a serious offense
ISSUE 1: Which “probable cause” stage?
o All arrests are, in theory, supported by probable cause.
o Maryland’s law requires judicial finding of probable cause.
ISSUE 2: What is a “serious offense”?
o An offense where a suspect is brought “to the station to be detained in
custody”?
o Or Maryland’s law which is limited to violent crimes and burglary?

28. • Remanded to Federal District Court
• Breyer brothers scenario
Harris v. Haskell (CA)
• State Appeals Oral arguments on July 15
State v. Buza (CA)
• State Supreme Court (argued March 2013)
State v. Medina, et al (VT) (Abernathy)
• Appeal to State Supreme Court (?)
State v. Biery (KS)
CONTINUING LEGAL CHALLENGES

29. ARRESTEE DNA DATABASE STATES
Who is Included:
All felony arrests (15)
Sex & Violent felonies (3)
Sex, Violent, Burglary felonies (11)

30. Collection after charges / indictment (2)
Collection at Booking / probable cause (21)
Collection at Booking, Analysis/Upload later (7)
ARRESTEE DNA LAWS
The Where and When
Automatic Expungement (10)
Expungement on request (19)
Where are samples collected When does expungement occur

31. FUTURE TRENDSIN STATE STATE DNA DATABASE POLICIES
CONTINUED
DATABASE
EXPANSION
Public Safety
Demand
MARYLAND
MODEL?
Collect now,
test later
Automatic
expungement
Limited to
burglary and
violent felonies
MISDEMEANOR
EXPANSION
No “database
of the
innocent”
No
expungement
MANDATED
RAPE KIT
TESTING
Testing of
ALL kits?
Counting and
tracking
requirements
Funding?

32. RAPID DNA
SUCCESS PREDICATED ON
Acceptance of Arrestee DNA Testing
CHANGES NEEDED AT
Federal & State Levels
IMPLICATIONS FOR
Policy & Funding

33. BYRNE-JAG
FY 2014 Grant Solicitation:
If JAG program funds will be used for DNA testing of evidentiary materials,
any resulting eligible DNA profiles must be uploaded to the Combined DNA
Index System (CODIS, the national DNA database operated by the Federal
Bureau of Investigation (FBI)) by a government DNA lab with access to
CODIS. No profiles generated with JAG funding may be
entered into any other non-governmental DNA database
without prior express written approval from BJA.
In addition, funds may not be used for purchase of DNA
equipment and supplies when the resulting DNA profiles
from such technology are not accepted for entry into
CODIS.
GRANT OPPORTUNITIES??

34. RAPID DNA
§943.325 Fla. Stat.
(11) SAMPLES.—The department will provide the DNA sample
collection kits, labels, or other appropriate containers and
instructions for the collection of the DNA samples. After collection,
the DNA samples shall be forwarded to the department for
analysis to determine genetic markers and characteristics for the
purpose of individual identification of the person submitting the
sample.

35. RAPID DNA
OCGA §24-4-60(b)
…The analysis shall be performed by the Division of Forensic Sciences
of the Georgia Bureau of Investigation. The division shall be authorized
to contract with individuals or organizations for services to perform
such analysis. The identification characteristics of the profile resulting from
the DNA analysis shall be stored and maintained by the bureau in a DNA data
bank and shall be made available only as provided in Code Section 24-4-63
OCGA § 24.4.62
…Whether or not the results of an analysis are to be included in the data
bank, the bureau shall conduct the DNA analysis in accordance with
procedures adopted by the bureau to determine identification characteristics
specific to the individual whose sample is being analyzed. The director of the
Georgia Bureau of Investigation or his or her designated representative shall
complete and maintain on file a form indicating the name of the person
whose sample is to be analyzed, the date and by whom the sample was
received and examined, and a statement that the seal on the container
containing the sample had not been broken or otherwise tampered with.

36. RAPID DNA
US House Committee Report
Rapid DNA analysis.—The FBI established the Rapid
DNA Program Office in 2010 to develop and integrate
instruments for law enforcement use, and provided
guidelines for use of Rapid DNA instruments in accredited
laboratories. The Committee is also aware
that such technology is currently limited to use at
accredited laboratories, where results can be uploaded to
the FBI Combined DNA Index System database. The
Committee urges the FBI to explore ways to develop
this capability for application to intake, processing,
booking, detention, and incarceration stages, and to
recommend to Congress any legislation that may be
required to facilitate such implementation.