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Home My WebLink AboutOFFICE OF THE DISTRICT ATTORNEY INVESTIGATIVE GENETIC GENEALOGYINSURANCE NOT REQUIRED N-2022-203 WORK MAY PROCEED CLERK OF THE COUNCIL N N DATE: N ch 0 a OFFICE OF THE DISTRICT ATTORNEY ORANGE COUNTY, CALIFORNIA TODD SPITZER O' • f A, N,(CtW4rew,dev the MEMORANDUM OF UNDERSTANDING INVESTIGATIVE GENETIC GENEALOGY (IGG) A primary responsibility of a prosecutor is to seek justice for victims and protect the community through the vigorous and just enforcement of our laws. Through the advent of DNA technology — and investigative genetic genealogy in particular— law enforcement has greatly enhanced its ability to identify perpetrators of unspeakable crimes such as unsolved rapes and murders. However, while recognizing the value of this groundbreaking tool, law enforcement must nevertheless conduct these investigations ethically, responsibly and while safeguarding individual privacy rights. All parties consider it is essential to establish investigative genetic genealogy (IGG) searching policies. The implementation of such policies and procedures will ensure IGG practices that are consistent and predictable, resulting in the equitable investigation and prosecution of criminal cases. We recognize the dual goals of safeguarding the privacy of our citizens while upholding our obligation to seek justice and promote public safety. In doing so, the parties agree that nothing in this MOU authorizes the Investigating Agency or the Orange County District Attorneys Office (OCDA) to use IGG DNA data for purposes other than the identification of a suspect in an unsolved violent crime with critical public safety implications, or to identify human remains, or to exonerate an innocent person. By signing this MOU, the Investigating Agency and OCDA agree to the following for all cases handled by the Investigating Agency involving IGG: CRIME SCENE FORENSIC UNKNOWN 1. The unsolved crime at issue is a violent felony with critical public safety implications. 2. The Investigating Agency has consulted with OCDA and determined that all other reasonable and viable investigative leads have been pursued, including DNA profile comparisons to suspect reference samples, with negative results. 3. The investigation has developed a forensic unknown STIR DNA profile from the evidence attributable to the perpetrator in the case, unless developing such a STR profile is not feasible. OCDA IGG MOU 3.3.2020 4. The Investigating Agency has requested that the forensic unknown STIR DNA profile, if qualified, be uploaded into the Combined DNA Index System (CODIS) and no hit has resulted from routine searches. 5. If a qualifying forensic unknown STIR DNA profile exists, and absent circumstances that may limit future testing capabilities or delay the Investigation where the public safety risk is critical, the Investigating Agency should consider submitting a request for a Familial Search of that profile to Cal-DOJ, after consulting with OCDA. 6. If the forensic unknown STIR DNA profile does not qualify for a CODIS upload, the Investigating Agency has consulted with OCDA and the Orange County Crime Lab (OCCL), and noted the reason why the forensic unknown STIR DNA profile does not qualify for a CODIS upload in the case file. UNDERTAKING INVESTIGATIVE GENETIC GENEALOGY 7. The Investigating Agency has consulted with OCDA and both agencies agree that IGG is an appropriate and necessary step in the development of investigative leads and to protect public safety. IGG shall be conducted in a lawful manner consistent with federal Constitutional jurisprudence. 8. The Investigating Agency shall consult with OCCL to determine if the forensic unknown sample is suitable (i.e., quantity, quality, degradation, mixture status, etc.) for Single -Nucleotide Polymorphism (SNP) or other testing. 9. The forensic unknown sample used to develop a SNP or other DNA profile shall be attributable to the perpetrator in the case or to unknown human remains. 10. If the crime is solved while IGG is ongoing, IGG will cease immediately and the Investigating Agency will take all reasonable steps to ensure that any testing cease, any samples/evidence be returned to the Investigating Agency or OCCL, and any profiles/data shall be removed from any genealogical websites. 11. The Investigative Agency agrees that no arrest will be made based solely on the identification of a potential suspect from IGG. The identification is an investigative lead or "pointer" only and must be confirmed by STIR DNA testing through a legally obtained sample verifying the suspect's identity. 12. The Investigative Agency should consult with OCDA prior to obtaining any DNA sample from a potential suspect identified by IGG. 13. The Investigating Agency will consult with OCDA if it becomes necessary to obtain a DNA sample from an individual other than the potential suspect (e.g., an Individual who has been determined to be genetically related to the potential suspect). Such samples shall be legally obtained and the Investigating Agency shall obtain written, Informed consent from that individual, unless extenuating circumstances exist (i.e., investigation could be compromised). If extenuating circumstances exist and third OCDA IGG MOU 3.3.2020 party consent is not obtained, then authorization of OCDA shall be obtained prior to any IGG-related laboratory analysis. 14.00DA should be consulted prior to seeking a Search Warrant based upon information obtained during IGG. 15. If IGG results in the identification of a potential suspect as an investigative lead and STIR DNA testing confirms the identity, the Investigating Agency will take all reasonable steps to pursue and complete the investigation and submit the case to OCDA for filing consideration in a timely manner. 16. No offender name obtained as a result of IGG will be released until all parties to this MOU have conferred and agree that an arrest warrant is imminent and the case has been referred to OCDA for a filing decision, or in the case of a deceased offender, all parties agree that releasing the offender's name is appropriate. USE OF INVESTIGATIVE GENETIC GENEALOGY DATA 17. The Investigating Agency and OCDA will use data obtained from IGG only to identify a suspect or human remains, or to exonerate an innocent person, and for no other purpose. 18.Once the Investigating Agency has identified a suspect as a result of IGG and has confirmed that identification by STIR DNA testing through a legally -obtained DNA sample, the Investigating Agency will download a copy of all Information uploaded to a genealogical website and remove the crime scene forensic unknown DNA and account profile from the genealogical website. The crime scene forensic unknown SNP profile shall be maintained by the Investigating Agency or by the OCCL. 19. The Investigating Agency and OCDA will make all reasonable efforts to protect the Identity and privacy of third parties. Any third party reference samples, profiles, account information, including personal identifying information, and data used for IGG purposes shall be destroyed by the Investigating Agency, after consultation with OCDA and the issuance of an appropriate judicial order, unless the third party consents to the continual inclusion of their reference sample, profile, account information, and data in the genealogical websites. 20. The Investigating Agency agrees that, so long as consistent with the law, and in order to protect privacy, it will not include in any warrant or probable cause declaration, the full name, email address or other personal identifying Information of any person identified through IGG as a possible relative of the unknown, putative perpetrator. However, if such information is necessary to establish probable cause, then OCDA will request that the warrant or probable cause declaration be sealed pursuant to California Rule of Court 2.550, People v. Hobbs (1994) 7 CalAth 948 and Evidence Code Section 1040. Further, personal identifying information, including but not limited to full names, addresses, and telephone numbers of third parties identified through IGG, will be released only if accompanied by a protective order, pursuant to court order or as required by law. OCDA IGG MOU 3.3.2020 21. The Investigating Agency and OCDA both agree that they will not sell, distribute, or otherwise use DNA or genealogical data for scientific research or for any commercial, medical, health or pharmaceutical purpose of any kind. The Investigating Agency and OCDA shall take all reasonable steps to ensure the same limited use by any vendor laboratory authorized access to the DNA or genealogical data. 22. The Investigating Agency and OCDA both agree that they will not use any DNA data in violation of the terms of this MOU. 23. This MOU is not intended to create any rights in any party to the agreement nor in any third parties. All parties to this MOU understand and agree to each of its provisions. I certify that I am a duly authorized representative of the entity indicated below and have the authority to sign this MOU on behalf of my agency and obligate it accordingly. FOR THE INVESTIGATING AGENCY: See attached signature page Signature Date Print Name Title Agency FOR THE ORANGE COUNTY DISTRICT ATTORNEY'S OFFICE: Signature Date Print Name Title OCDA IGG MOU 3.3.2020 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: kk AA �v(Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: jMt� TAMARA BOGOSIAN Senior Assistant City Attorney CITY OF SANTA ANA E RIDGE' City Manager RECOMMENDED FOR APPROVAL: D ie LENTIN f of Police