SENATE DOCKET, NO. 2739        FILED ON: 1/10/2020

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2480

The Commonwealth of Massachusetts

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PRESENTED BY:

Anne M. Gobi

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act permitting familial searching and partial DNA matches in investigating certain unsolved crimes.

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PETITION OF:

SENATE DOCKET, NO. 2739        FILED ON: 1/10/2020

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2480

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act permitting familial searching and partial DNA matches in investigating certain unsolved crimes.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 22E of the General Laws is hereby amended by inserting after section 10 the following section:-

Section 10A. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Allele”, one of the alternate forms of the DNA at a particular genetic locus.

“Blind external proficiency testing”, a test sample that is presented to a forensic laboratory for forensic DNA testing through a second agency and which appears to the analyst to involve routine evidence submitted for forensic DNA testing.

“Casework evidence DNA profile”, a DNA profile that is derived from biological evidence originating from and associated with the commission of a crime. “Convicted offender DNA profile”, the DNA profile generated by the testing of a biological sample collected from a designated offender.

“Designated offender”, a person convicted of a felony.

“DNA profile”, a set of DNA identification characteristics that may permit the DNA of a person to be distinguishable from that of another person; provided, however, that for STR DNA profiles, “DNA profile” shall mean the list of alleles carried by a particular individual at a specific set of genetic loci.

“Familial searching”, the process of purposefully searching a DNA databank for partial matches or indirect associations between a convicted offender’s DNA profile and a DNA profile developed from crime scene evidence.

“Forensic DNA index”, the electronic database in CODIS that contains DNA profiles generated from casework evidence by forensic DNA laboratories.

“Forensic DNA laboratory”, a forensic laboratory operated pursuant to section 7 that performs forensic DNA testing on a crime scene or material derived from the human body for use as evidence in a criminal proceeding or for the purpose of identification.

“Forensic DNA profile”, a DNA profile that is derived from biological evidence originating from and associated with the commission of a crime.

“Forensic DNA testing”, a test that employs techniques to examine DNA derived from the human body for the purpose of providing information to resolve issues of identification; provided, however, that regulation adopted pursuant to this chapter shall not include DNA testing on materials derived from the human body for the purpose of determining a person’s genetic disease or medical condition and shall not include a laboratory operated by the federal government..

“Forensic laboratory”, a laboratory operated by the commonwealth or a local government that performs forensic testing on evidence in a criminal investigation or proceeding or for the purpose of identification.

“Indirect association” or “partial match”, the determination during the CODIS candidate match confirmation process that a forensic index DNA profile is similar to a DNA profile in the convicted offender index or subject index and a comparison reveals that the offender or subject is not the source of the DNA profile but may be a relative of the source of the forensic index profile.

“LDIS”, local DNA index system.

“Loci”, shall mean the specific chromosomal locations of genes or other DNA elements, such as an STR.

“Mitochondrial DNA analysis” or “mtDNA analysis”, the analysis of genetic polymorphisms that occur in the DNA of mitochondria.

“STR”, short tandem repeat.

“STR analysis”, a form of testing that provides DNA profiles for loci that contain simple DNA unit repeats.

“Subject DNA profile”, the DNA profile generated by analysis of a biological sample collected from a person convicted of a crime whose specimen was collected pursuant to sections 3 and 4, inclusive.

“Subject index”, the electronic database containing DNA profiles generated from a person convicted of a crime whose DNA specimen was collected: (i) after a criminal trial; (ii) pursuant to a plea agreement; (iii) as a condition of participation in a temporary release, comprehensive alcohol and substance abuse treatment or shock incarceration program; (iv) as a condition of release on parole, post-release supervision, presumptive release or conditional release on a definite or indefinite sentence; or (v) as a condition of probation or interim probation supervision.

“Y-STR”, STR loci on the Y-chromosome.

(b) The director shall promulgate regulations that permit familial searching and the release of partial matches to police departments in cities and towns, to the department, to the department of correction, to a sheriff's department, to the parole board or to prosecuting officers within the commonwealth for cases involving violent felony offenses, homicides and burglary.

(c) The regulations shall permit the use of familial searching and require the release of the results of such a search to police departments in cities and towns, to the department, to the department of correction, to a sheriff's department, to the parole board or to prosecuting officers within the commonwealth if, upon application by a public servant acting in the course of the public servant’s official duties, a court determines that:

(i) there is reasonable cause to believe that a familial search using the crime scene DNA profile may result in a partial DNA match;

(ii) the crime scene DNA profile derives from a single source and contains not less than 10 of the CODIS core loci;

(iii) the crime is unsolved and all practicable investigative leads have been exhausted;

(iv) the DNA laboratory has run an exact match on the crime scene DNA profile with negative results;

(v) a police department in a city and town, the department, the department of correction, a sheriff's department, the parole board or a prosecuting officer within the commonwealth makes a written request that the DNA laboratory conduct a familial search on the crime scene DNA profile;

(vi) a police department in a city and town, the department, the department of correction, a sheriff's department, the parole board or a prosecuting officer within the commonwealth commit to further investigation of the case if the name of the potentially related offender is released and the name of the potentially related offender will be treated as a confidential, non-public investigative lead;

(vii) an LDIS search has been performed using the crime scene profile in the forensic unknown index;

(viii) the agency or person submitting the request has committed to pursue further investigation of the case if the name is released; and

(ix) the submitting laboratory has confirmed that the release of the name will be followed by a report to the investigating law enforcement agency; provided, however, that the report will indicate that the match is indirect and will also indicate that the available data suggests that the source of the evidentiary DNA pattern is potentially a relative of the convicted offender.

(d) If a laboratory finds a partial match as a result of a standard search of a DNA index but does not receive an exact match, the laboratory shall first contact the submitting agency and the appropriate prosecutor to confirm that they are committed to pursue further investigation of the case if the name is released. After receiving written confirmation from the submitting agency and the appropriate prosecutor, the laboratory shall follow the steps outlined in subsection (c).

(e) The report generated from the submitting laboratory to the investigating law enforcement agency shall indicate that: (i) the match is a result of familial searching or is a partial match resulting from a standard search of a DNA index; (ii) the information provided is a confidential, non-public investigative lead; and (iii) the available data suggests that the sources of the evidentiary DNA pattern is potentially a relative of the convicted offender but is not conclusive evidence of the same.             

(f) The division will provide the match information to the state DNA database to calculate and report whether the appropriate statistical threshold has been met.

(g) Upon receiving a completed application from a forensic DNA laboratory and confirmation from the database that the appropriate statistical threshold has been met, the division shall release the name of the offender to the laboratory who shall release the information to the investigating law enforcement agency after a court has determined that all of the requirements in subsection (c) have been satisfied. If the appropriate statistical threshold is not supported by the available data, then testing of additional loci of the offender sample may be required and may include Y-STR or mtDNA analysis. If the subsequent testing does not meet the appropriate threshold, the database will notify the division and the offender’s name will not be released.

(h) This policy will be subject to review every 2 years.

(i) The same standards and procedures defined in this section apply to requests for partial match and familial searching information from criminal justice agencies located outside of the commonwealth.

Any person who intentionally discloses a DNA record, or the results of a forensic DNA test or analysis, found as a result of familial searching or a partial match, to an individual or agency other than one authorized to have access to such records pursuant to this chapter, or intentionally uses or receives DNA records, or the results of a forensic DNA test or analysis, found as a result of familial searching or a partial match, for purposes other than those authorized pursuant to this article shall be guilty of a class E felony, and upon conviction thereof, shall be subject to a fine of not more than ten thousand dollars and any such other penalties as provided.

SECTION 2. This act shall take effect upon its passage.