MR. ASPLEN: I have not yet met with Mr. Webster.

CHIEF JUSTICE ABRAHAMSON: I'm sorry.

MR. ASPLEN: -- but we'll in fact do that.

CHIEF JUSTICE ABRAHAMSON: And Mayor Schmoke.

MR. ASPLEN: And Mayor Schmoke has a representative here today in the audience. Colonel Daniels is here on behalf of Mayor Schmoke to take back to the Mayor what it is that transpires today and we appreciate your being here today, Colonel.

CHIEF JUSTICE ABRAHAMSON: So I wanted to have you all advised as to what was happening with the others and they hoped to be here but something kept them from this meeting.

I thought what we would do now is introduce these five working groups with the fifth, post-conviction issues, really going into depth this afternoon at 2:00, so we will do the other four now.

A Commissioner has been asked to chair of the groups. There has also been a request for reporters for at least of these four, and we will talk about that.

The members of these working groups have not been appointed or selected, and in each of the tabs there is a request that each of you suggest people for any of these working groups and you should not limit yourself to people in your fields of expertise but others that you know and we'll go and try and put these working groups together -- and it is always open here to discuss other working groups or issues within the working groups.

I call your attention to again Tab G, which has the minutes of the planning group in Tab G for each of these working groups. There's a further discussion of the issues that that working group might look at.

So we will start with -- are you ready, Jim?

Jim Crow is going to be a double-header double- hitter. He is going to be the Chair and the Reporter for Research and Technology -- again, unassigned. If you would just briefly describe it and then we can talk about it.

DR. CROW: All right. Let me just read the description. That's what happened last week, and I am not very well prepared -- not at all prepared.

The Research and Development Working Group will examine trends in DNA technology which may be implemented by the forensic community for either casework or convicted offender databasing. The working group will discuss the impact of these new implications on the criminal justice system. A vision of forensic DNA application in the future will be gleaned.

CHIEF JUSTICE ABRAHAMSON: Wonderful.

DR. CROW: It's a great description and I guess I just have to say that I have given no thought yet as to how to go about doing this, so mostly this is an open discussion, and I guess I'll stop with that.

CHIEF JUSTICE ABRAHAMSON: All right. If you will look at page 1 on the Tab G, it talks about technology research and development -- issues such as role of the technology given five or 10 years. What are the new technologies? What effect will chip technology have on expense? What effect will new technology have on the crime scene issues, and who is driving what parts of technology are issues that came to the fore in that discussion.

We are open to other issues and other discussion.

DR. CROW: One of the issues that I personally care strongly about but I think doesn't come out in the course of discussion is the cost of DNA testing is a problem.

I think one can foresee that as the technology gets to be better and better, as it becomes possible to test more loci, the great profession of population genetics will become more and more irrelevant and the issues will tend to move more in the direction of laboratory standards, laboratory errors, questions of this kind.

I think it is easy to foresee tremendous advances in the DNA technology itself, in the speed, the ability to use poorly preserved specimens, the ability to find things from the relatively distant past -- all of these are going to happen, and I presume our committee will report on that in some detail.

CHIEF JUSTICE ABRAHAMSON: Dr. Reilly, before you do, I also call your attention to pages 12 and 13 at Tab G, which again talked about some of the issues on technology research and development. Dr. Reilly.

DR. REILLY: If it hasn't yet been done, Chris, I would make a recommendation. I believe that if a dialogue was established with the National Center for Human Genome Research at NIH that Question C -- might be approximated, will make approximate answers.

The Federal Government outside of this department is spending on the order of $200 million a year on the Human Genome Project, much of it in significant polymorphism research, things of that nature, and it may well be that there is much information there that while not directly on point is so close to some of these issues that it could give us a leap forward in thinking about new technologies, so I would think Francis Collins's office at NIH could be very helpful.

Recently $25 million was spent to establish a major sequencing laboratory, for example.

MR. ASPLEN: Thank you.

DR. CROW: Certainly one thing we can look forward to is instead of just studying locus by locus is studying sequences next -- sooner or later -- probably sooner it's going to be part of the genome technology.

CHIEF JUSTICE ABRAHAMSON: Any other comments about research and technology? Do you have any comments on that?

You will have to stand up and come to a microphone, please -- or you have got a microphone coming to you.

DR. FORMAN: Thank you. My only comment would be from a forensics standpoint one of the issues that we want to consider in terms of research and development is the issue of technology transfer and some of the proprietary issues that come up when you're talking about the development of new technologies that have a forensic application.

CHIEF JUSTICE ABRAHAMSON: What kind of people would you want on this taskforce?

PROFESSOR SCHECK: A patent lawyer.

CHIEF JUSTICE ABRAHAMSON: Good.

PROFESSOR SCHECK: I am perfectly serious, based on what Lisa was saying before, that there were serious concerns that we had from 1989 forward with some of these probes and trivial variants in some of these problems that were then resold at greater expense.

I think that that is something to be looked into. You could save a lot of money fast.

DR. ADAMS: I would also like to encourage participation from either the state or the national level in this area from the CODIS Working Group, because everything that we do in research to move technologies forward is going to have a tremendous impact on what we can do at the state and national level for identifying unsolved crimes and from the convicted offender databases.

CHIEF JUSTICE ABRAHAMSON: Dr. Reilly.

DR. REILLY: I have a sense that private industry has a huge role in driving this technology forward and there are many companies for example known to me, in which I have no connection whatsoever, that might well be able to provide representatives to give you just the latest cutting edge insight into what is under development out there.

I mean I can provide you a list of at least a dozen companies which might have potential candidate members for the working group.

DR. CROW: Well, thank you for saying it, but I had the same idea -- so much is being driven now by private companies developing new and better and eventually cheaper, not now, technologies that I think we should have people from that area represented.

I can suggest some names too --

CHIEF JUSTICE ABRAHAMSON: I hope you all suggest names, because that is why these sheets are there and that you do it preferably before you leave -- then we're sure to get them. Go ahead. Speak up.

MR. ASPLEN: You'll notice that you have two sheets. One if for nominations for actual participation on the working group or presentation to the working group, but there's also suggestions for reviewers who, again in an attempt to throw our net as far as we can, to have other input by -- by after the work is done or perhaps at the interim levels, to send it out to individuals who may have appropriate and valuable comment to make.

CHIEF JUSTICE ABRAHAMSON: Any other comments on that?

On page 12 there is a discussion that one of the objectives of this committee would be to set up protocols for the training of expert witnesses, and that is part of the improving of the process -- so we should consider that -- this is under Tab G -- and compatibility among tests.

Paul?

[END OF VIDEO 2] 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 [BEGINNING, VIDEO 3]

MR. WOOLEY: We have appended to that -- and to say that, I would preface it with a comment that I think is probably obvious but all of these issues have existed for a long time in other settings and there are existing rules about discovery and the admissibility of evidence and error rates and validation and controls, and I think that this group should be asking the question, "Should DNA" -- I mean sort of as a starting point -- "be subjected to any different legal treatment?"

I think this bleeds over into the postconviction area where we do have legal standards regarding the preservation of evidence, and when a convicted offender is entitled to a review of that, and I think that we should almost use those perhaps as a starting point, because at the end of this report if the committee were to find that the existing rules are inadequate to address DNA issues, we would be proposing to the Attorney-General to propose changes to the Criminal Discovery Rule 16, changes to the Federal Rule of Evidence 702, so I think that we need to address that as part of this group.

MR. THOMA: I have a couple other areas that I would like to address as well, and I am also going to nominate myself for this committee.

The database collection and discovery issues -- it's been an overwhelming problem; particularly being a defense attorney, getting access to and being able to review databases from other laboratories; contamination issues, how that is to be treated; equal access to evidence as the NRC- 2 mandates how that is going to be accommodated in each jurisdiction or overall federally; which type of DNA testing.

I noted Barry brought up the situation in New York where they have gone to STRs or they are going to STRs. STRs to date are disfavored in California based on stutter bands and some other problems. The courts have not been very readily accepting them at least there, and then some standardization of testing and proficiency testing, which I realize is an overlap of what we were just discussing in the last two committees, but I think it would be a legal issue as well.

PROFESSOR SCHECK: I don't want to be on the committee anymore.

[Laughter.]

CHIEF JUSTICE ABRAHAMSON: Anything else anyone wants to say about that? What about education and training of judges, prosecutors, the defense, bar and jurors.

MR. THOMA: Yes. I was trying to bring up those aspects that weren't -- I think every subject that was brought up in the planning is also relevant, but I was just trying to add some.

CHIEF JUSTICE ABRAHAMSON: One of the issues that has come up in a variety of discussions was how does DNA affect how we view other evidence?

You have got a tool that can, say, one, it can exclude somebody; two, it can tell you a rate or what would be the correct estimate, population estimate -- which sounds really quite probable that you have got the right person; and then I think to many people many the most persuasive evidence is eyewitness identification -- you know? You have all seen it on Perry Mason. That's it -- she's someone in the back of the courtroom or defense counsel table.

Yet the psychologists tell us that may not be such good evidence, and so if people get accustomed to a one out of "x" million, how are they going to view other kinds of evidence, even fingerprint, handwriting, eyewitness, et cetera?

PROFESSOR SCHECK: Well, already it is having a legal impact. Some of that other evidence by comparison just isn't very good, but in terms of the -- what I mean to say is that under the Daubert case -- frankly, it should even have been under Frye -- because of the scrutiny that DNA has withstood, people are going back and looking for the -- do you have any real scientific foundation to tell us whether or not you can do handwriting comparisons, and courts have begun to say, well, we are not so sure you really do.

Hair comparisons, however, I would commend to our attention as perhaps the one area that we should look at the hardest within these various different subcommittees, if only because, number one, we all know that by definition hair is -- hair comparisons are just for class characteristics, that DNA in many of these cases has demonstrated that what was a hair -- I don't know if you can use the term "match" -- it's supposed to be like or the same as the other hair turned out to be misleading to the fact- finder in a whole bunch of cases, but now with the mitochondrial DNA assay, there is a real tool available to even go further in examining the bona fides of hair, in terms of even laboratory funding questions.

I know Paul struggled with this question in Virginia. If you have DNA testing, to what extent do you still need to do hair comparison analysis? Or should you be doing it? So I think that one in particular that in policy terms is something for this group to struggle with and address.

CHIEF JUSTICE ABRAHAMSON: Any other comments on the legal issues?

DR. DAVIS: Let me comment a little bit.

I have been a great believer that if there is evidence available, readily available -- not at great unusual cost -- but if evidence is available it should be obviously obtained and analyzed regardless of whether it is witness testimony, whether it is questioned document, hair or what.

I think if we rely or focus in on one item to the exclusion of anything else we have done a great disservice, because it is a jigsaw puzzle, no matter how you look at it, and if you only pick out a few pieces of that jigsaw puzzle and say that these substitute for the total jigsaw puzzle, sooner or later a great misjustice will ensue.

MR. CLARKE: Not just that. I think Joe is absolutely right. Jurors also hold the Government to that as well. Obviously DNA typing is generally only being used in our most serious cases, and if the law enforcement community as well as even we as prosecutors haven't done everything we can to exclude that person excused of that crime, jurors will hold that against us.

They expect all of those t's to be crossed and i's to be dotted, so I think the good news is sometimes we sell jurors short. In reality, and going back to what Barry mentioned, I think jurors have a healthy disrespect for eyewitness identification.

In fact, the most nerve-wracking are cases where we sometimes feel the most at risk are eyewitness identification cases without corroborative scientific evidence, so I think that also is an issue that certainly should be raised during the process.

MR. GAHN: Chief Justice, may I just make one comment that also will echo those, but something for the law enforcement community, something that I have noticed, although now it is oftentimes in jest, but I will have a case and be doing a DNA case where we have very impressive DNA evidence along with eyewitness identification, but I get the sense sometimes that the detectives seem to think, well, we've got DNA and that's enough, and I think that there may be in the future as this technology advances maybe not going out -- the traditional beating of the bushes -- and investigative work that should be done from the start, and there is an attitude developing that, well, if we have got semen, we'll get DNA and some things may start to fall by the wayside that we may be very sorry for later down during trial.

It is just a caution I think at this point I think to all law enforcement --

PROFESSOR SMITH: Well, it is a caution that in conjunction with the financial discussion we started to have it seems to me has great importance, because if we invest -- if we recommend investments of the magnitude that is beginning to be suggested in this technology, in effect we are suggesting this investment elsewhere, and a corollary to Norm's comment, however, also has to do with prosecutors.

I think that prosecutors can fall into the same trap. I was talking to a victim advocate at one time where she asked me whether or not I thought that DNA ever affected the way that I handled a victim, and my immediate response was, well, of course not -- I am very victim advocacy oriented. That is why I am a prosecutor prosecuting sex crimes.

Then I thought about it and I thought, you know, if I have a pile of cases on my desk -- two piles of cases -- and one pile are the bad cases and the other pile are the really, really bad cases, but I have DNA in a case what to do. Well, it goes to this pile and what happens? I probably spend a little bit less time on victim preparation because this case probably just a little bit closer to a guilty plea, and that is a very real dynamic that is also something from an educational standpoint I think we need to suggest, remind prosecutors of.

CHIEF JUSTICE ABRAHAMSON: Okay. A couple of comments then I will just go five minutes into, if we can, the lunch hour, so you can fill out some of these forms or at least start them, and then proceed.

Go ahead. Sorry.

DR. FERRARA: I wanted to answer your -- try to address your original question.

I mean when -- when you have hair evidence, a microscopic hair comparison on one hand, and you have a DNA match, there's orders of magnitude difference in terms of the weight with which those two have to be accorded -- plain and simple.

Somebody may disagree with me, and that's fine, but if I have a six-probe DNA match vis-a-vis a subjective, microscopic examination of a not particularly representative sample, one I can quantitate by saying the likelihood of a false -- the likelihood of a random match is one in five billion, I can't say that with a hair comparison, and it becomes very difficult -- it becomes incumbent on the expert to somehow explain to the court how much weight should be accorded that hair, which was considerably less than the DNA.

Now I try to eliminate hair comparisons. Whenever we have DNA evidence in a rape case I said I am not going to do the hair, and the prosecutors had a hissy fit, and understandably because, one, a hair comparison could tend to support the DNA work. My argument is that it's not as probative as a vaginal swab, but there's a lot of -- there is a lot of technical arguments and vagaries to this whole issue, not only with respect to hair but hair comparisons -- of course, fingerprints of course are much more self-evident to a court, which is a great advantage. Hair comparisons, less so, so that is very difficult.

I just have one last point here --

CHIEF JUSTICE ABRAHAMSON: One last point, quickly and --

PROFESSOR SCHECK: A question about how we function in a research notion, and that is that one of the things that Chris mentioned before was trying to get at the budgetary implications of saying invest in the database -- it is in the long-run interests of the state and local or city authorities, but one thing that we could research but haven't yet, and that is -- that would be very persuasive one way or the other, I think -- is to what extent do DNA cases, once you have an inclusion or an exclusion, actually save money within the system.

In other words, if you frontload the system, as many of our studies seem to be indicating were going in terms of databases, typing cases when they come in, or if you get very quickly exclusions or inclusions, how much money does that save you along the line?

Are you really getting faster guilty pleas and thereby saving money from the judiciary budget, public defenders, the prosecutors, et cetera, where if you exclude people out of the system very quickly if is that really happening it would be very useful it seems to me to know with some particularity whether we really are saving money with the DNA, and if we could prove that, that would help with policy recommendations.

CHIEF JUSTICE ABRAHAMSON: Okay. Anyone else have something they want to say before everybody leaves for lunch? Okay. That usually gets everybody.

Can we just take a few moments, without interfering with our lunch plans, let's take a few moments, if we can, to write out some names, and then we will continue that process.

[Pause.]

CHIEF JUSTICE ABRAHAMSON: All right.

[Pause.]

MR. ASPLEN: If I could make a general announcement at this point, [inaudible] how many folks were here. If you would care to join us for lunch, and you been able to pay, you are going to have to pay your -- how much, $11, $10 -- $11, please feel free to join us. If not, and you are going to go out for lunch, we'll make sure that we have escorts when you return, if you return this afternoon, to walk you back into the building.

And if you have decided since this morning that you would like to stay, and you would like to pay someone, see us, a representative will be in the back to take your money. Okay.

We will -- we will start Dr. Budowle's presentation at approximately -- between ten and quarter after, say ten after.

Lunch is directly through these doors here.

[Whereupon, the meeting was recessed, to reconvene later this same day.]

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