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Last week the New York State Commission on Forensic Science, which includes 12 representatives from law enforcement, criminal defense, the judiciary the NY State Dept of Health and forensic laboratories, approved modifications to DNA regulations to allow disclosure of “near matches” that are observed in NY’s databank searches. Under current regulations, when crime scene evidence is tested and a DNA sample is a close partial match to an individual’s profile in the database, the scientists are not permitted to report an inadvertent near hit that is observed.

Deputy Secretary for Public Safety Denise E. O’Donnell chairs the Commission of Forensic Science and stated, “The Commission has taken an important step to address the serious and valid concerns expressed by forensic scientists, who feared that they are currently placed in an untenable ethical bind: right now they have no authority to share information, discovered inadvertently, that may provide vital evidence in a criminal investigation. That is entirely unreasonable, and contrary to the concept of public interest, to ask our laboratories to withhold information that they know may be the key to stopping a serial rapist or murderer, or exonerating an innocent individual.”

While the proposed amendment is similar to statutes in California and Colorado which allows “familial searching, ” or singling out particular families, NY’s regulation will only address the rare case where a routine search of the DNA database results in a near hit, which when used in as an investigative tool, could greatly limit the collection of potential suspects.

With a close eye on constitutional safeguards and accepted scientific procedures, the NY DNA Subcommittee must still review the implementation plan and submit final recommendations to the full Commission. The Governor’s Office of Regulatory Reform will make its publication and public comment. If adopted, the new regulations will assure that partial-match cases reviewed by the scientists on the DNA subcommittee adhere to the new standards.

New York currently collects DNA samples from only about 46% of people convicted of crimes. Governor Paterson has proposed an all-crimes DNA bill that would require anyone convicted of a penal law crime to provide a DNA sample.

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