Issue: How should the state handle test samples, results and reports concerning elimination of suspects?

Introduction

Federal and state governments have cooperated in the development and implementation of techniques and data retention related to DNA forensic testing. State legislation controlled the field in large part until Congress passed the federal DNA Identification Act of 1994. With the development of the Federal Bureau of Investigation's (FBI) Combined DNA Index System (CODIS) for the retention of data concerning convicted felons, direction has been given to the use and retention of information. Following is an overview of Michigan statutes and federal law for procedures governing forensic DNA testing.

Existing Law and Background

1. Controlling Law and Rules: Michigan Law: Act No. 250 of the Public Acts of 1990 known as the DNA Identification Profiling Systems Act (MCLA §28.171 et seq.) calls for promulgation of rules for forensic testing concerning:

• Collection of samples in a medically approved manner by qualified persons and the types and numbers of samples to be collected by corrections departments, law enforcement agencies and the Family Independence Agency.

• Distribution of blood specimen vials, mailing tubes and labels and instructions for collecting samples.

• Storage and transmission of samples.

• Genetic profiling of samples.

• Development of a system, including computerization of filing, cataloging, retrieving and comparing DNA profiles, in cooperation with the Federal Bureau of Investigation (FBI) and other appropriate persons.

• Cooperation with the FBI in development of DNA identification and genetic marking profiling capability and training state police personnel.

• Protection of the privacy interests of individuals whose samples are analyzed under the act.

Other statutes deal with the procedures for DNA profiling and the categories of criminals whose DNA must be profiled.

• Act No. 507 of the Public Act of 1996 amended Chapter XII A of Act 288 of the Public Acts of 1939 by adding section 18k (MCLA §712.A18k) designated that individuals convicted or found responsible for violation of specified crimes shall provide samples for DNA profiling.

• Act No. 509 of the Public Acts of 1996 amended section 33d of Act No. 232 of the Public Acts of 1953 "to revise, consolidate and codify laws relating to probationers, probation officers..." (MCLA §791.233d). This ensured that prisoners required to provide samples for DNA testing did so prior to discharge, if they had not already done so.

• Act No. 510 of the Public Acts of 1996 amended §750.520(m) of the Michigan Penal Code regarding collection and forwarding of samples for DNA identification profiling according to rules promulgated by the state police.

• Act No. 511 of the Public Acts of 1996 amended Act No. 73 of the Public Acts of 1988 by adding section 5a (§803.225a) dealing with juvenile facilities. This action provides for testing of juveniles convicted or found responsible for certain crimes.

• Act No. 512 of the Public Acts of 1996 amended Act No. 150 of the Public Acts of 1974 by adding section 7a (§303.307a), which provides for DNA profiling of state wards convicted of specified crimes prior to discharge or being placed in any community.

The rules developed in accordance with PA 250 and amending statutes are the foundation of genetic profiling procedures in various contexts and are found in the Michigan Administrative Code (R28.5051-5059).

Qualifying Offenses for DNA Testing in Michigan: Crimes for which DNA identification profiling is mandated include sex offenses, murder, assault and kidnapping. Testing applies to juveniles and adults who are convicted of or found responsible for committing or attempting to commit those crimes.

Consent for Obtaining Samples for DNA Profiling: Provision of samples for DNA profiling is mandatory for those convicted of the crimes delineated under Michigan law. Provision of samples may be voluntary or under warrant during the course of a criminal investigation.

Laboratory Oversight: The American Society of Crime Laboratory Directors establishes standards and monitors quality. Proficiency testing of technicians who perform DNA analyses is done under its auspices at least yearly.

Federal Law: DNA Identification Act of 1994 provides for the following:

• 42 USC §14131 - Quality assurance and proficiency testing standards that include the formation of a national DNA Advisory Board.

• 42 USC §14132 - The development of an index to facilitate law enforcement exchange of DNA identification information.

• 42 USC §14133 - Lists the duties of the Federal Bureau of Investigation relative to proficiency testing requirements, privacy protection standards and criminal penalty for abridgment of privacy protections, including fines up to $100,000.

• 42 USC §14134 - Authorizes funding to the FBI for carrying out the above sections of this title.

2. Collection and Analysis of Samples

Specimen Collection and Storage: Originally, only blood samples were collected. Presently, the use of buccal smears (cells obtained by swabbing the inside of the mouth) is gaining in popularity. Blood samples are stored in freezers (controlled environment), while buccal smears can be stored appropriately at room temperature. Continued evolution of techniques for collection and storage is anticipated.

DNA Analysis: The object of forensic DNA identification profiling is to establish a pattern that is unique to the individual without identifying genes that are associated with specific diseases or disorders. Thus, a DNA profile does not establish the suspect’s genetic predispositions.

Access to Information: Only authorized users in law enforcement agencies have access to the FBI’s CODIS Indexing System for the identification of DNA profiles.

Functioning of the Combined DNA Index System: CODIS consists of three levels:

• National DNA Index System (NDIS) - maintained by the FBI

• State DNA Index System (SDIS) - each state has one designated SDIS

• Local DNA Index System (LDIS) - each law enforcement system participating in CODIS maintains an LDIS database that receives pertinent information from its local laboratory, the Local DNA Analysis System (LDAS)

 

The CODIS ensures that DNA data added to an index meet specific criteria. For example, before accepting LDAS data for transfer to LDIS, CODIS performs a series of checks to filter substandard or inappropriate data and to ensure appropriate user authority. An array of similar techniques permits transfer of DNA data from local to state to national levels only with carefully controlled access through selected user authority.

3. Issues Regarding Forensic Use of DNA

Over the years, a number of problems have arisen as DNA forensic technology has evolved. Relevant portions of state laws have been amended and the use of the databank in cooperation with the federal government has been instituted. What follows is a summary of problems that have been resolved and proposed solutions for those remaining.

A. Resolved Issues

Period of Sample Retention: While not mandated by state law, DNA samples taken from convicted and responsible felons are retained indefinitely. Samples of elimination suspects are returned to the submitting local law enforcement agency upon conclusion of the investigation.

Period of Record Retention: DNA records of convicted individuals are retained and placed on the FBI CODIS system where they remain indefinitely. As required by Michigan Law (MCLA §28.176), records of elimination suspects that contain an individual’s name are to be returned to the submitting agency at the conclusion of the investigation. The Michigan Department of State Police has implemented procedures that comply with this law. Unidentifiable evidence is retained in each casework file to assure compliance with the accrediting body’s laboratory standards.

B. Outstanding Issues

Questions have arisen about the manner in which local law enforcement agencies dispose of the returned elimination blood samples. Disposal of the blood samples returned to local law enforcement agencies is subject to Act No. 18 of the Public Acts of 1990 (Part 138 of the Public Health Code). Section 13811(b) of this act requires blood products and body fluids to be disposed of by one of the following methods:

i Flushing down a sanitary sewer

ii Decontaminating by autoclaving or incineration

iii Solidifying

iv If in solid form, transferring to a sanitary landfill

v A process approved by the department

There is no provision, however, for monitoring this disposal.

Recommendation

Since there is no assurance that returned elimination samples of blood and body fluids will be disposed of in an appropriate manner by local law enforcement agencies, the commission recommends that Michigan State Police protocol be modified to allow elimination specimens to be disposed of where the DNA analysis is conducted. This would require the State Police Forensic Laboratory to modify intra-departmental protocol for sample disposal as follows:

3. Elimination Samples/Purging Protocol

3.1 Elimination samples will be destroyed in accordance with 3.1.1 and 3.1.2, infra, after completion of the analysis so long as the laboratory concluded that the sample was submitted by a person who should be eliminated from consideration as a suspect.

3.1.1 The destruction of samples will be performed in the presence of a witness.

3.1.2 An audit record, signed by the witness, will document the destruction of such samples.

The destruction of elimination samples in the proposed manner would establish clear auditable rules for medical waste disposal.