Advocates from the legal and scientific communities joined state lawmakers in Albany today to urge Gov. Andrew Cuomo and lawmakers to include measures that promote fairness and accountability as part of any legislation expanding New York’s DNA databank.
Specifically, they called for an expert task force charged with establishing rigorous oversight and quality assurance controls regarding the collection, storage and analysis of DNA evidence; requirements that persons charged with, or convicted of, a crime have access to DNA evidence for purposes of establishing their innocence; and best-practice protocols that have been demonstrated to prevent mistaken witness identification and improper police interrogations.
“The warning signals are apparent,” said Robert Perry, legislative director of the New York Civil Liberties Union. “It is well documented that human error, and worse, routinely enters into the use of forensic DNA, and the Commission on Forensic Sciences is simply not capable of providing adequate oversight and accountability. To cite one example: The state’s Inspector General recently charged that the forensics commission had abdicated its responsibility in responding to the scandal at the Nassau County crime lab.”
The governor and the Assembly are now in deliberations regarding legislation – already passed by the Senate – that would allow the police to collect a genetic sample from every person convicted of any crime. The police can already take DNA from people convicted of violent crimes – even low-level misdemeanors. It is estimated that the proposed legislation would require the processing of tens of thousands of additional DNA samples annually.
The state has repeatedly expanded the DNA databank since it was established in 1996, but there has been little if any effort to enhance regulatory oversight. Absent more effective oversight, the NYCLU and other advocates warn, the proposed massive expansion of the DNA databank greatly increases the potential for mistakes, flawed prosecutions and wrongful convictions.
“Any scientific enterprise that involves so much human decision making is prone to some error. DNA testing is not infallible and bigger just simply isn’t better when it comes to DNA databases,” said Jeremy Gruber, president of the Council for Responsible Genetics. “The chance for false matches is far higher when authorities search through an ever increasing number of profiles than when they compare a single individual profile to a suspect. Partial DNA matches and mixing of samples at crime scenes further increase the chances for a false match.”
Proponents of the “all crime” databank argue that it will help to exonerate the innocent. But the proposed legislation does not include amendments of the criminal procedure law that would allow the court to order the testing of DNA evidence
“I am told that expansion of the DNA databank will prevent wrongful convictions. Well, then, as a matter of basic fairness – and common sense – persons charged with or convicted of a crime must have access to DNA evidence to establish their innocence,” said Assembly Member Jeffrion Aubry. “The legal hurdles that bar access to this evidence should be removed.”
“The fact is, the prosecutor controls the evidence in criminal proceedings,” said Justine Olderman, managing attorney with the Bronx Defenders Association. “The playing field is not level. And without reform of criminal procedure law, the introduction of DNA evidence in many more cases will further disadvantage innocent persons facing criminal charges.”
Expansion of the state’s DNA database also directly implicates race – and racial justice.
“Let’s be frank – the criminal justice system is not race neutral,” said Senator Ruth Hassell-Thompson. “We also know that forensic DNA is not infallible: Error and abuse occur even with use of DNA evidence. And to the extent this happens, the individuals harmed will be persons of color. We need more robust oversight of DNA labs – and stronger protections against wrongful convictions.”
The recommendations presented today to accompany DNA databank expansion include:
- Establish effective oversight and accountability to ensure the integrity of the DNA databank.
o Create an independent expert task force charged with (1) analyzing policies and practices related to the collection, analysis, storage and use of forensic DNA based upon authoritative scientific and legal research; and (2) proposing a reconstituted Commission on Forensic Sciences that has the authority, independence and resources to provide rigorous oversight of forensic labs.
- Provide individuals charged or convicted of a crime access to DNA and other forensic evidence for the purpose of proving their innocence.
o Authorize judges to order comparisons of DNA evidence and fingerprints obtained at a crime scene with DNA and fingerprint databases.
o Establish mandates and procedures for the preservation of crime-scene evidence.
- Reform law enforcement practices to prevent mistaken eye-witness identification and false confessions.
o Require video recordings of persons interrogated while in police custody.
o Mandate adoption of best-practice eye-witness identification procedures.