On April 25, the US House of Representatives Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on on H.R. 3361, the "Utilizing DNA Technology to Solve Cold Cases Act of 2011.
The proposed legislation instructs the FBI to:
* Create a system whereby a state can request a familial search of the national DNA database; * Implement a number of procedures to protect the privacy and civil liberties of individuals, and ensure that familial searching is implemented in such a way as to provide the maximum amount of oversight of how the evidence is used; and * Report annually to Congress on the number of familial searches requested and their outcomes.
The proposed law seeks to nationally formalize familial DNA searching across the US.
Four witnesses spoke at the hearing. Dennis P. Kilcoyne, a detective with the Los Angeles Police Department described its use of familial DNA searching and the strict protocol that was established by the Department of Justice for its usage including:
1. Must be a crime of violence and include critical public safety implications.
2. All reasonable and viable investigative leads have been exhausted.
3. The biological evidence is from a single source profile exhibiting a minimum of 15
genetic markers (15 Short Tandem Repeats (STR) loci (location on the genetic
He endorsed familial searching within such guidelines.
The second witness to speak was Peter M. Marone, Director of the Virginia Department of Forensic Science. He gave a general background of law and policy and concluded that the current CODIS system is ill equipped for familial searching and that it's premature to institute a formal familial searching directive.
Third to speak was Stanford Professor Hank Greely. He supported H.R. 3361, although with reservations. He declared that familial searching will not solve a large number of crimes, but it will solve some crimes, at some cost to the public in convenience, in privacy, and in their presumed innocence. If managed well by the Attorney General’s regulations, he concluded that "(small) cost seemed to be a cost that is likely to be outweighed by the technique’s (also fairly small) benefits." He declared that the technique should be used responsibly and could be improved.
The last to speak was ACLU of Northern California attorney Michael Risher. He found that familial searching
"is qualitatively different from more established DNA techniques: it is inherently less precise; it implicates people in criminal activity because of who their family is and the size of that family, rather than what they have done; and it focuses investigative attention on people who are known to be innocent. Because of these differences, it is important that Congress take an active role in determining how this technique will be used."
If Congress determines that the benefits of familial DNA searching outweigh the fiscal and social costs, it should do what it did in the context of wiretapping and create a statutory framework to ensure that this powerful emerging technology is used appropriately, in ways that respect personal and family privacy and other constitutional values."
In particular, he made the following recommendations:
1. Probable cause to believe that one of the crimes listed in § 2(B) of the bill have been committed.
2. Probable cause to believe that DNA evidence would help solve the crime (i.e., that DNA belonging to the perpetrator had been recovered from the crime scene and a profile created).
3. No identical match for the DNA sample collected from a crime scene can be identified in the offender index, as currently required by § 2(A).
4. That “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;” as is currently required for wiretaps under 18 U.S.C. § 2518(3)(c).
5. The scope of the search for which authorization is sought (judicial authorization).
It remains to be seen if the bill will proceed further. As Professor Greely stated:
"this bill should also make us think about where we want the use of forensic DNA techniques and databases to go. If all the bill does is to spark a realistic discussion of that question, that alone may make it worthwhile."