DNA Backlogs in U.S. | Worgul, Sarna & Ness, Criminal Defense Attorneys

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In the era of popular police procedural shows such as CSI, a perception exists that the investigation of crimes and processing of evidence is lightning fast. Evidence is collected, DNA analyzed, and confession secured all within the space of an hour. This perception has even led to something called the “CSI effect,” in which the expectations of jurors in criminal cases are influenced by the exaggerated portrayal of forensic science on TV shows. Jurors expect DNA evidence and high tech scientific tests to be performed in every case, but the reality of forensic science is very different.

In fact, rather than the kind of quick peek under a microscope that tells the forensic scientist everything he or she needs to know about a DNA sample on TV, crime labs across the nation are struggling to process the DNA evidence collected in hundreds of thousands of cases. For several years, law enforcement, prosecutors, crime victim advocates, defense lawyers, and lawmakers have been working to raise awareness about the nationwide backlog of untested DNA evidence and how it’s affecting the criminal justice system — and to try to solve the problem of a rising demand for testing of DNA samples and crime labs’ limited capacity to get the work done.

Defining Backlogs

According to the National Institute of Justice, prior to 2011 the definition of a backlog varied from crime lab to crime lab. One crime lab might consider it a backlog if a sample hasn’t been processed within 90 days, but others might allow for a longer processing period before the sample is considered backlogged. The NIJ created its own definition in which a DNA sample is considered backlogged if it hasn’t been tested after 30 days in the laboratory. That definition is now the standard for crime labs that receive NIJ funding.

The number of backlogged cases fluctuates daily as existing DNA samples are tested and new ones come in. Hundreds of millions of dollars has been allocated by Congress, primarily in the form of grants flowing through NIJ, in recent years in an effort to tackle DNA backlogs, but the issue remains a significant problem in criminal justice, with hundreds of thousands of DNA samples remaining untested in crime laboratories. According to NIJ, 99 percent of publicly funded crime labs depend on NIJ grants and would not have sufficient funding without them.

Types of Backlogs

To get at the heart of what’s happening with DNA backlogs and why they matter, its important to understand the different kinds of DNA samples that crime labs process. In general, those fall into the two categories of forensic casework backlogs and samples taken from offenders or people who have been arrested to be included in a DNA database.

Forensic Casework Backlogs

When a crime happens, crime scene investigators collect evidence from the place where the crime happened, or places connected to a crime such as a victim’s home or suspect’s home. DNA samples have become an important tool in forensic casework, and a positive identification through DNA can link a person to a crime scene or to the victim of a crime. DNA evidence also can be used to rule out suspects, such as in a rape case when a DNA sample of the victim’s attacker does not match the person arrested.

Forensic casework involves the processing and testing of the evidence taken from crime scenes. Once evidence is collected in the field, it is sent to a crime lab where trained staff begin the process of examining the evidence and determining if the evidence contains DNA that can be tested. If DNA is present, then the crime lab staff must determine whether the sample has sufficient integrity to render accurate test results. Sometimes a sample is degraded or contaminated, which presents a challenge for testing. Another challenge is when evidence contains samples from multiple people.

According to NIJ, the number of backlogged forensic casework DNA samples rose from about 24,000 cases in 2005 to nearly 112,000 by the end of 2009, and the number continues to grow because samples are coming in faster than crime labs can process them.

Offender Sample Backlogs

Another type of backlog derives from samples collected from offenders and people who have been arrested that are waiting to be processed and submitted to the Combined DNA Index System maintained by the FBI. All 50 states and the federal government have laws that require DNA samples from people who are convicted of certain crimes. Sex offenders and violent offenders often must give DNA samples when convicted, but the specifics of who must provide DNA samples for the database varies from state to state. Most states require collection of DNA samples from anyone who is convicted of a felony. The federal government and some states also require people arrested for certain crimes to provide DNA samples for the database.

The CODIS database is intended to help police identify who might have committed a crime when they don’t have witnesses at the scene or other ways of identifying a possible perpetrator in their investigations. If a DNA sample collected at the crime scene matches an offender whose DNA is in CODIS, then the police have someone they can question in connection with the crime. The database also includes DNA profiles from crime scene samples.

Because of the proliferation of laws requiring DNA samples from offenders, the backlog of offender samples also is rising. According to NIJ, the number of new samples collected from offenders in 2007 was about 1 million, but had risen to 1.7 million by 2009. The capacity exists to process about 1 million samples per year, which means the backlog is steadily rising.

Rape Kit Backlogs

Although rape kits fall under the category of forensic casework, a backlog of hundreds of thousands of untested rape kits across the nation has garnered particular media interest. Rape kits contain the evidence collected from a person who has reported being sexually assaulted. When a sexual assault report is made, the person making the report can choose to undergo a forensic medical examination that includes taking biological samples that may contain the suspect’s DNA. Once the kit is completed, it goes into police evidence storage.

The issue with rape kit backlogs is a little different than other forms of forensic casework backlogs. The backlog of untested rape kits is due in part to the volume of rape kits and lack of capacity for crime labs to process them, but another significant factor is that police agencies haven’t sent many of the kits for testing. For example, if the detective investigating the sexual assault doesn’t believe the case is strong enough to move forward with prosecution or if the case resolves early in the process with a plea bargain, the rape kit might never be sent for testing. Instead, the kits remained in police storage. Some jurisdictions, including New York City, have passed laws requiring that every rape kit be sent for testing, which adds to the forensic casework load.

Reasons for Backlogs

The volume of DNA samples collected for processing is only one side of the backlog equation. The other side is the capacity of crime labs to process the evidence. Capacity is affected by funding, staffing levels, technology, and availability of equipment. Grant money is helping many labs tackle those factors by hiring more DNA technicians, acquiring robotic technology to process samples faster, upgrading software used to analyze DNA test results, or outsourcing the testing of DNA to private labs to try to address backlogs.

Why Backlogs Matter

The timely processing of DNA evidence is invaluable not only to prosecutors or crime victims seeking justice, but to innocent people accused of crimes they did not commit based on circumstantial evidence. NIJ reports in its fact sheet on DNA backlogs that 14 percent of unsolved homicides and 18 percent of unsolved rapes involved evidence that had not been submitted to crime labs for forensic analysis. Another 23 percent of property crimes — or more than 5.1 million cases — involved evidence that hadn’t been analyzed. Proponents of laws and funding to tackle the backlogs argue that many of those cases could be solved if evidence is processed.

DNA evidence from one crime scene also can serve to illuminate another seemingly unrelated crime. For example, the Joyful Heart Foundation’s “End the Backlog” website notes that once police in Fort Worth, Texas, began whittling away at its backlog of untested rape kits, DNA evidence from the kits matched to the CODIS database resulted in 200 matches that ultimately led to 36 felony convictions and the arrest of five serial rapists.

Another important consideration is the number of death penalty cases in which a conviction has been reversed because DNA evidence. Former Illinois Gov. George Ryan famously placed a moratorium on executions in the state because emerging DNA evidence had cast a shadow on so many convictions. Ryan commuted the sentence of all 167 of Illinois’ death row inmates to life without parole before leaving office in 2003.

According to the American Civil Liberties Union, hundreds of people have been exonerated of crimes using DNA evidence after they were convicted, including 17 death row inmates as of late 2011. In some cases, people have spent decades in prison or on death row when DNA evidence exonerated them, such as Earl Washington, a man with significant mental retardation, who was convicted of rape and murder in Virginia after falsely confessing to the crime. He was sentenced to the death penalty, but DNA tests conducted years later proved he had not committed the rape. He was pardoned in 2000. Most states and the federal government now have laws allowing inmates access to DNA testing to support claims of innocence post-conviction, but timely processing of DNA evidence in the initial investigations could help prevent those convictions when the DNA evidence ultimately exonerates the defendant.

How Our Pittsburgh Criminal Defense Lawyers Can Help

Whether you have been formally charged with a crime or you’re being investigated for one, you need the best defense possible. An experienced Pittsburgh criminal defense lawyer can help you avoid charges altogether if you’re being investigated, or fight to get the charges reduced or even dismissed in a case. Call our team today at (412) 281-2146 for a free, legal consult.