Tackling Technical Debt: Managing Advances in DNA Technology thatOutpace the Evolution of Law

From its initial development in the 1980s as an identification tool, the use of DNA in criminal cases—both to convict defendants and exonerate the wrongly convicted—has been prolific. By the 1990s, Congress had focused on forensic DNA research and development. As DNA continues to expand its footprint as the ostensible “gold standard” in criminal investigations, an extraordinary amount of the federal funding allocated to crime labs was specifically earmarked for DNA expansion. Indeed, the funding abundance for DNA collection, testing, and retention far outstrip other crime lab allotments. Because of this, research and development of new DNA analytical techniques can be a lucrative business. Indeed, the next generation of DNA technology already has or inevitably will find its way into criminal investigations and the courtroom. The high rate of return on DNA-based investment almost dictates this result: As of December 2015, CODIS has produced over 315,410 hits that assisted in at least 303,201 investigations. But DNA technology may advance and outpace the testimonial claims, which are not yet reliable and scientifically defensible. Technology does not wait for the legal system to catch up with it. This article examines the new wave of DNA testing tools. It surveys the validity of these new forensic techniques, considers evidentiary uses in courts, and any addresses potential hurdles to admissibility. Part I covers the background of DNA testing. Part II assesses LCN DNA testing, Part III looks at phenotyping, and Part IV focuses on Rapid DNA testing. Finally, Part V concludes that additional validation studies are needed before these technologies become part of the routine criminal investigation process. From its initial development in the 1980s as an identification tool, the use of DNA in criminal cases—both to convict defendants and exonerate the wrongly convicted—has been prolific. By the 1990s, Congress had focused on forensic DNA research and development. As DNA continues to expand its footprint as the ostensible “gold standard” in criminal investigations, an extraordinary amount of the federal funding allocated to crime labs was specifically earmarked for DNA expansion. Indeed, the funding abundance for DNA collection, testing, and retention far outstrips other crime lab allotments. Because of this, research and development of new DNA analytical techniques can be a lucrative business. Indeed, the funding abundance for DNA collection, testing, and retention far outstripped other crime lab allotments, despite the fact that DNA analysis only represented a small portion of crime lab work at that time. Two decades later, DNA testing is now a primary hub of many labs—forcing other traditional forensic lab departments (such as trace evidence or fingerprints) to cut back or close shop.