Board Resolution ~ 2/13/13 (3)

Regarding Defense Access to DNA Databases

Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers 

Washington, DC
February 23, 2013

WHEREAS the federal Combined DNA Index System (CODIS) database, operated and maintained by the FBI, contains data regarding over 10 million offenders and 1.3 million arrestees, and is growing at an increasing rate;

WHEREAS CODIS software enables state, local, and national law enforcement crime laboratories to compare DNA profiles electronically, identifying  potential contributors by matching DNA profiles from crime scenes with profiles from convicted offenders;

WHEREAS all fifty states, the District of Columbia, Puerto Rico, and the United States Army participate in CODIS;

WHEREAS when a person is accused or convicted of a crime he did not commit, running crime scene evidence through CODIS may help identify the true perpetrator, material witnesses or other evidence helpful to the defense;

WHEREAS DNA evidence has led to more than 300 exonerations in the US, several of which hinged upon the accused’s ability to perform DNA database comparisons in order to demonstrate the guilt of a third party;

WHEREAS very few states (9 as of year-end 2012) have laws granting defendants access to DNA databases, and the federal DNA Identification Act of 1994 (42 U.S.C. §14132) does not authorize the defendant to request that crime scene evidence be run through CODIS;

WHEREAS the FBI requires that participating states abide by the DNA Identification Act, superseding any state laws granting broader defense access to CODIS;

WHEREAS the current framework generally blocks the defense from accessing CODIS to obtain exculpatory information;

WHEREAS law enforcement has no obligation to run crime scene evidence through CODIS, when crime scene evidence does not match the defendant’s DNA, law enforcement may choose not to run the evidence through CODIS to avoid developing alternative suspects or other evidence that contradicts the prosecution’s theory of the case;

WHEREAS if a defense attorney believes a DNA profile obtained from a crime scene may be probative of a client’s innocence and should be compared to the profiles in the database, he or she must rely on the good will of the government to request the search;

THEREFORE BE IT RESOLVED that NACDL supports federal and state legislation to ensure defense access to CODIS for purposes of preparing a defense or petitioning for post-conviction relief or executive clemency; and

BE IT FURTHER RESOLVED that such legislation should authorize courts to order, upon the accused’s pre-trial or post-conviction request, that a law enforcement entity that has access to the Combined DNA Index System submit the DNA profile obtained from probative biological material from crime scene evidence to determine whether it matches a profile of a known individual or a profile from an unsolved crime.

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