The Honorable Orrin G. Hatch.
Chairman, Committee on the Judiciary

The Honorable Patrick J. Leahy.
Ranking Member, Committee on the Judiciary

S.1700 ADVANCING JUSTICE THROUGH DNA TECHNOLOGY ACT OF 2003

Dear Chairman Hatch and Ranking Member Leahy:

On behalf of the American Civil Liberties Union (ACLU), we write to express our views on S.1700, the Advancing Justice Through DNA Technology Act of 2003.  The ACLU applauds the efforts behind this legislation to improve the administration of justice through ensuring federal prisoners access to post-conviction DNA testing, increasing compensation for those who are wrongfully convicted and providing $100 million each year for five years to train lawyers to defend and prosecute death penalty cases.  However, as currently written, Title I of the bill raises serious civil liberties concerns that prevent us from supporting the bill as a whole.  

Title I of this bill would significantly expand the Combined DNA Index System (CODIS) to include DNA for any federal felony as well as for any DNA collected under applicable state law.  Among other things, this provision would permit the inclusion of records from states that collect DNA profiles from people who have not even been convicted of a crime -- people who are innocent under our system of justice.  In addition, Title I would indefinitely toll the federal statute of limitations for crimes involving DNA, except in cases of sexual abuse. This provision of the bill would jeopardize a person's ability to prepare his defense to a criminal case if he is not charged with a crime in a reasonable amount of time after the offense takes place.   

Title I: Rape Kits and DNA Evidence Backlog Elimination Act

Section 103: Expansion of the Combined DNA Index System

Title I of this bill, Rape Kits and DNA Evidence Backlog Elimination Act, would inappropriately expand the scope of persons whose DNA profiles would be collected and maintained by the federal government.  Under current law, CODIS includes DNA profiles only of people convicted of serious violent federal crimes and those convicted of qualifying military and state offenses.[1]  The bill vastly expands the definition of ""qualifying federal offense"" to include any felony, sexual abuse crimes, crimes of violence, any attempt or conspiracy to commit the above crimes and additional qualifying military offenses.  

The bill also calls for the inclusion in CODIS of any DNA profiles that have been collected under ""applicable legal authorities.""  This will inevitably result in a federal database that goes far beyond convicted criminals.   This proposal would expand the class of people whose DNA is included in CODIS to persons convicted of any state crime and, if state law allows, other individuals' DNA that is included in state databanks.  While the bill prohibits inclusion of DNA from persons who voluntarily submit their DNA to be cleared of a crime, this exception does not sufficiently limit the expansion of the database. Louisiana, Texas and Virginia allow for the collection of DNA profiles of arrestees, and several other states are considering similar proposals.  Some states include the DNA of juveniles and persons who commit some misdemeanors in their state DNA databases, and at least 33 states[2] include the DNA of juvenile offenders who commit sexual and serious violent crimes. In the future, states could decide to submit DNA from any number of people, including those not charged nor arrested with crimes: day care providers, immigrants, people with driver's licenses or even people with a particular disease.  

Storing DNA profiles from persons who have not been convicted of a crime undermines presumption of innocence and sets a chilling precedent for data collection by the government of its citizens.  Innocent persons' DNA should not be included in the federal CODIS system, nor should the DNA of people convicted of misdemeanors or any crime that is not a serious violent felony. This broad inclusion of records will change the character of CODIS from a system that is somewhat narrowly tailored for forensic purposes to a system that gathers personal information about innocent people just in case they someday commit a crime.  Any DNA records included in the federal CODIS systems should pertain to people who have been convicted of serious violent crimes. 

Juvenile adjudications are not criminal convictions, thus should not be included in a criminal DNA database.  State policies that include juveniles in their state criminal databases undermine the juvenile court's fundamental principle of rehabilitation that has traditionally been promoted in courts and law enforcement by not maintaining permanent juvenile records for young people involved in the juvenile justice system.[3] The rationale of sealing and expunging juvenile records is to give juveniles who come in contact with the juvenile court system a second chance to rehabilitate themselves by not having their record follow them into adulthood (i.e. employers and college or school officials having access to records). In addition, the most serious young offenders are tried as adults, thus they lose the protections of the juvenile justice system and their DNA would be included in the CODIS database under current law.  Expanding CODIS to permit juveniles' DNA to be included would further erode the rehabilitative and confidential nature of the juvenile justice system. 

H.R. 3214, the House version of the Advance Justice Through DNA Technology Act, passed the House on November 5, 2003, with several substantive changes from S. 1700 its Senate companion bill.  Notably, the version of the legislation that passed the House was improved with language that would not permit the DNA of arrestees who have not been indicted nor waived indictment to be included in the CODIS DNA database.  We strongly urge you to include the language in H.R. 3214 that would exclude DNA of some arrestees in Sec 103 of S.1700 to maintain the focus of the database as one that is used for forensic purposes.  

Section 104: Tolling of the Statute of Limitations 

Innocent people could be convicted of crimes if this bill eliminates the statute of limitations for some crimes. Section 104 of the bill would amend Chapter 213 of Title 18 in the U.S. Code, which addresses statutes of limitations for various federal crimes, by indefinitely tolling the federal statute of limitations for crimes involving DNA, except in cases of sexual abuse. Under the bill, the statute of limitations would not begin to run until a person is implicated by DNA testing.  For example, if biological material was found at a crime scene in 2005, it might be tested and a DNA profile submitted to the CODIS DNA database in 2006.  But, the DNA might not be tied to a particular person until that person is tested and identified much later, say in 2035 -- for something completely unrelated.  That person could be tried for a non-capital crime in 2040 - 35 years after the offense was committed.  Memories would have faded and alibi witnesses would have disappeared, or passed away. 

Statutes of limitations are primarily designed to assure fairness to defendants.  An ability to prepare a defense is clearly undermined in a case where a claim is revived after a period of time such that ""evidence is lost, and witnesses have disappeared.""[4]

A tolling of the statute of limitations might be considered warranted for DNA cases in the event that DNA evidence was both 1) permanent; and 2) incontrovertible.  Permanence of DNA samples would allow the defendant to request retesting of the sample at any time after the biological evidence was profiled and a ""match"" determined. If an error occurred or DNA testing methods were significantly improved, a subsequent test of a permanent DNA sample might produce a more complete analysis.  If the DNA test were incontrovertible, then the results of the test or re-test could be accepted as truth, and any other evidence to which the defendant no longer has access would be insufficient for overturning a clear ""match.""  Neither of these conditions are presently met by DNA testing.  

The notion that DNA evidence is permanent and incontrovertible is wrong in both principle and practice.  In 2003, the Houston crime lab was shut down after an independent audit revealed widespread problems associated with the handling and analysis of DNA evidence.  Thousands of cases are being reviewed, and more than 375 cases are slated for retesting. Labs in Fort Worth, Oklahoma City, Baltimore, Phoenix, W. Virginia, Montana and Washington are also undergoing investigation and review of hundreds of additional cases.  While the problems uncovered in these labs are thought to be the exception rather than the rule, these cases should remind us of the fallibility and limitations inherent in DNA testing and the need for careful scrutiny, particularly in cases that hinge on DNA evidence alone.

There are also concerns about mishandling of DNA evidence, misinterpretation of test results and inaccuracy in reporting of results.  In a case were DNA evidence has been mishandled or test results have been misinterpreted, it would be difficult for a defendant to establish problems with the original DNA samples if 35 years later the lab technician is no longer available and the lab conditions under which the sample was tested can not be verified. Thus, the key piece of evidence might be that DNA and a jury might convict an innocent person based primarily on unreliable DNA evidence. 

Therefore, we strongly urge you to take the approach in the PROTECT Act, P.L. 108-21 which authorizes the use of John Doe DNA indictments for offenses under Chapter 109A (i.e. sexual abuse offenses) and authorizes John Doe indictments in cases in which DNA testing implicates an unidentified person in a felony.  John Doe DNA indictments allow for the government to file an indictment against a person whose identity is unknown, based on their DNA profile. This provision requires the government to file an indictment against a person within five years of the date the crime was committed.  Sect. 610 of P.L. 108-21 also ensures that a defendant's right to a speedy trial are protected until there is an arrest or summons served in the case. 

Title III: Innocence Protection Act 

Title III of S.1700, the Innocence Protection Act, would establish a procedure in federal court to access DNA testing under certain circumstances and encourage states to provide such a process as well.  As of July 2003, thirty states had laws providing some access to DNA testing for convicted persons to support their claims of innocence.[5] 

The IPA would create a process by which post-conviction DNA testing would be available to people in prison after a trial for federal offenses who :

• swear under penalty of perjury that they are actually innocent of the Federal offense for which they are serving a sentence for or another Federal or state offense that would qualify them as a career offender.  
• establish that the specific DNA evidence was secured in relation to the investigation of the above Federal or State offense;
• demonstrate that the DNA evidence has not previously been compared to the DNA of the prisoner and that the prisoner did not waive his right to request DNA testing [6] or that previously tested DNA will be analyzed using a new method;
• verify that the evidence is in the possession of the Government, that the chain of custody has been maintained and that the evidence has been retained in a manner that will allow testing;
• establish that the DNA testing is reasonable, using sound methods;
• show that the defense theory is consistent with an affirmative defense presented at trial and would establish actual innocence;
• were convicted following a trial at which the identity of the perpetrator was at issue; (i.e. defendants who plead guilty are not eligible for post-conviction DNA testing);
• produce new material evidence (through DNA testing) to support their defense that raises reasonable probability that the prisoner did not commit the crime; and 
• provide a DNA sample and show that the purpose of the request for DNA testing is to establish actual innocence and not delay the administration of justice.

Indigent prisoners may be appointed counsel to represent them through this post-conviction process.  Title III also states that it does not provide a basis for relief in any Federal habeas corpus proceeding. Thus, this legislation does not create an independent right to access federal court through the Federal habeas corpus process.  Nevertheless, the IPA does allow a prisoner to file motions for a new trial or resentencing,[7] if DNA test results exclude him as the perpetrator of the crime. Also, this section clarifies that the IPA does not affect a person's ability to seek DNA testing or post-conviction relief under any other law.  

In addition, the IPA authorizes $25 million over five years to states to help defray the cost of post-conviction DNA testing and $100 million each year over the same time period to train lawyers to defend and prosecute death penalty cases. The bill also specifies that states must equally allocate funding for training of prosecutors and defense lawyers.

The flaws in our nation's capital punishment system are clear: 114 innocent people on death row have been exonerated in the past 30 years. The ACLU applauds the progress that would be made in the Innocence Protection Act to address the inadequacies in the capital punishment system in this country.  However, we will not withdraw our opposition to the bill as a whole unless these problems with Title I are addressed.  We look forward to working with you to improve the aspects of the bill that have significant civil liberties implications on the presumption of innocence and the right to a fair trial.   

Sincerely,

Laura W. Murphy
Director 

Jesselyn McCurdy
Legislative Counsel

Diann Rust-Tierney
Director, ACLU Capital Punishment Project

cc: Senate Judiciary Committee
Senate Majority Leader Bill Frist
Senate Minority Leader Tom Daschle