<section article="gcp" article_name="Criminal Procedure" number="17-101" title_number="17" title_name="Forensic Genealogy" subtitle_number="1"> <level label="a"> <text>In this title the following words have the meanings indicated.</text> </level> <level label="b"> <text>“CODIS” has the meaning stated in § 2–501 of the Public Safety Article.</text> </level> <level label="c"> <text>“Direct–to–consumer genetic genealogy services” means genetic genealogy services that are offered by private companies directly to members of the public and law enforcement agencies rather than through clinical health care providers, typically via customer access to secure online websites.</text> </level> <level label="c–1"> <text>“Express consent” has the meaning stated in § 14–4401 of the Commercial Law Article.</text> </level> <level label="d"> <text>“FGG profile” means a genetic profile using SNPs or other sequencing methods generated from a forensic or reference sample by a laboratory for the purpose of conducting an FGGS.</text> </level> <level label="e"> <text>“Forensic genetic genealogical DNA analysis and search” or “FGGS” means:</text> <level label="1"> <text>the forensic genetic genealogical DNA analysis of biological material using SNP or other sequencing techniques to develop an FGG profile;</text> </level> <level label="2"> <text>a subsequent search using the FGG profile in a publicly available open–data personal genomics database or a direct–to–consumer genetic genealogy service to find individuals related to the source of the FGG profile; and</text> </level> <level label="3"> <text>a genealogical search using public records and other lawful means to obtain information in accordance with this title.</text> </level> </level> <level label="f"> <level label="1"> <text>“Forensic sample” means biological material reasonably believed by investigators to have been deposited by a putative perpetrator and that was collected from a crime scene or a person, an item, or a location connected to the criminal event.</text> </level> <level label="2"> <text>“Forensic sample” includes biological material from unidentified human remains.</text> </level> </level> <level label="g"> <text>“Publicly available open–data personal genomics database” means a database in which persons voluntarily submit their genomics data or genetic profiles, typically processed through direct–to–consumer genetic genealogy services, for the purposes of comparison or searching against the genetic profiles of other individuals to evaluate potential familial relationships between the reference sample and other service user samples.</text> </level> <level label="h"> <text>“Putative perpetrator” means one or more criminal actors reasonably believed by investigators to have committed the crime under investigation and to be the source of, or a contributor to, a forensic sample deposited during or incident to the commission of a crime.</text> </level> <level label="i"> <text>“Reasonable investigative leads” means credible, case–specific facts, information, or circumstances that would lead a reasonably cautious investigator to believe that the pursuit would have a fair probability of identifying a putative perpetrator.</text> </level> <level label="j"> <text>“Reference sample” means biological material from a known source.</text> </level> <level label="k"> <level label="1"> <text>“Single–nucleotide polymorphisms” or “SNPs” means DNA sequence variations that occur when a single nucleotide (A, T, G, or C) in a genomic sequence varies.</text> </level> <level label="2"> <text>“Single–nucleotide polymorphisms” includes variations that may be used to distinguish people for purposes of biological relationship testing.</text> </level> </level> <level label="l"> <text>“STR DNA profile” means a genetic profile that examines genetic locations on the non–sex chromosomes that are used for the statewide DNA database system or the national DNA database system.</text> </level> <level label="m"> <text>“Third party” means a person who is not a suspect in the investigation.</text> </level> </section> <section article="gcp" article_name="Criminal Procedure" number="17-101.1" title_number="17" title_name="Forensic Genealogy" subtitle_number="1"> <text>This title does not apply to FGGS conducted solely for the purpose of identifying an individual who is:</text> <level label="1"> <text>deceased; or</text> </level> <level label="2"> <text>the subject of a missing person report filed with a law enforcement agency in the State and whose whereabouts are unknown.</text> </level> </section> <section article="gcp" article_name="Criminal Procedure" number="17-102" title_number="17" title_name="Forensic Genealogy" subtitle_number="1"> <level label="a"> <level label="1"> <text>FGGS may not be initiated without judicial authorization and without certifying before the court that the forensic sample and the criminal case satisfy the criteria set forth in this section.</text> </level> <level label="2"> <text>If an FGGS is certified before a court in accordance with this section, the court shall authorize the initiation of the FGGS.</text> </level> </level> <level label="b"> <level label="1"> <text>A sworn affidavit shall be submitted by a law enforcement agent with approval of a prosecutor from the relevant jurisdiction asserting that:</text> <level label="i"> <text>the identity of the perpetrator is unknown;</text> </level> <level label="ii"> <text>the crime is the commission of, or the attempt to commit, murder, rape, a felony sexual offense, or a criminal act involving circumstances presenting a substantial and ongoing threat to public safety or national security;</text> </level> <level label="iii"> <text>the forensic sample to be subjected to the FGGS is biological material reasonably believed by investigators to have been deposited by a putative perpetrator and that the forensic sample was collected from:</text> <level label="1"> <text>a crime scene;</text> </level> <level label="2"> <text>a person, an item, or a location connected to the criminal event; or</text> </level> <level label="3"> <text>the unidentified human remains of a suspected homicide victim;</text> </level> </level> <level label="iv"> <text>an STR DNA profile has already been developed from the forensic sample, was entered into the statewide DNA database system and the national DNA database system, and failed to identify a known individual; and</text> </level> <level label="v"> <text>unless the crime being investigated presents an ongoing threat to public safety or national security concerns, reasonable investigative leads have been pursued and failed to identify the perpetrator.</text> </level> </level> <level label="2"> <text>Nothing in this subsection may be construed to require that all investigative leads have been exhausted.</text> </level> </level> <level label="c"> <text>Biological samples subjected to FGG DNA analysis, whether the forensic sample or third party reference samples, may not be used to determine the sample donor’s genetic predisposition for disease or any other medical condition or psychological trait.</text> </level> <level label="d"> <text>FGGS may only be conducted using a direct–to–consumer or publicly available open–data personal genomics database that:</text> <level label="1"> <text>provides explicit notice to its service users and the public that law enforcement may use its service sites to investigate crimes or to identify human remains; and</text> </level> <level label="2"> <text>seeks acknowledgement and express consent from its service users regarding the substance of the notice described in item (1) of this subsection.</text> </level> </level> <level label="e"> <text>The laboratory conducting SNP or other sequencing–based testing and the genetic genealogist participating in FGGS shall be licensed by the Office of Health Care Quality in accordance with § 17–104 of this title.</text> </level> <level label="f"> <level label="1"> <level label="i"> <text>Subject to subparagraph (ii) of this paragraph, informed consent in writing shall be obtained from any third party whose DNA sample is sought for the purpose of assisting an FGGS and all statements made in obtaining the informed consent shall be documented from beginning to end by video or audio recording.</text> </level> <level label="ii"> <text>If the use of informed consent will compromise the investigation as demonstrated under subsection (g)(1)(ii) of this section and the third party has not already refused to consent, investigators may seek authorization to covertly collect a DNA sample in accordance with subsection (g) of this section.</text> </level> </level> <level label="2"> <text>The person obtaining the informed consent shall have training from a genetic counselor approved by the Office of Health Care Quality under § 17–104 of this title within 1 year after the Office of Health Care Quality has identified and approved a genetic counselor or within 1 year after the person joins the investigative unit conducting the investigation, whichever is later.</text> </level> <level label="3"> <text>The third party shall be informed, at a minimum, of the following before giving informed consent in writing:</text> <level label="i"> <text>the investigation involves a crime specified under subsection (b)(1) of this section;</text> </level> <level label="ii"> <text>the third party is not a suspect in the investigation and has the right to refuse to consent to the collection of a DNA sample;</text> </level> <level label="iii"> <text>the law prohibits the covert collection of a DNA sample if the third party refuses to consent to the collection of a DNA sample;</text> </level> <level label="iv"> <text>the third party has been identified through a search of a direct–to–consumer or publicly available open–data personal genomics database as a potential relative of an individual believed to have committed a crime specified under subsection (b)(1) of this section;</text> </level> <level label="v"> <text>investigators are seeking the third party’s DNA to assist in identifying the person or persons who committed the crime, or to identify the victim of a homicide, and for no other purpose; and</text> </level> <level label="vi"> <level label="1"> <text>the third party’s DNA sample and any information obtained from its analysis will be kept confidential in accordance with a court order during the course of the investigation;</text> </level> <level label="2"> <text>the DNA sample and any data obtained from it will be destroyed when the investigation or any criminal case arising from the investigation ends; and</text> </level> <level label="3"> <text>in accordance with a court order, the third party will receive notice by certified delivery that the destruction has occurred.</text> </level> </level> </level> <level label="4"> <text>If the third party does not consent to providing a reference sample for an FGGS investigation, law enforcement may not collect a covert reference sample from the individual.</text> </level> </level> <level label="g"> <level label="1"> <text>If investigators determine that one or more persons are putative perpetrators of the crime under investigation and it is necessary to collect a covert DNA sample from the putative perpetrator or a third party:</text> <level label="i"> <text>the authorizing court shall be notified prior to the covert collection of the putative perpetrator’s or the third party’s reference sample;</text> </level> <level label="ii"> <text>subject to paragraph (2) of this subsection, for a covert collection of a DNA sample of a third party, investigative authorities shall provide an affidavit to the court demonstrating that seeking informed consent from a third party creates substantial risk that a putative perpetrator will flee, that essential evidence will be destroyed, or that other imminent or irreversible harm to the investigation will occur;</text> </level> <level label="iii"> <text>investigative authorities shall make a proffer to the court explaining how they plan to conduct the covert collection in a manner that avoids unduly intrusive surveillance of individuals or invasions to their privacy and follows the laws of the State;</text> </level> <level label="iv"> <text>for a covert collection of a DNA sample of a putative perpetrator, any putative perpetrator DNA sample that is collected covertly may only be subjected to an STR test to see if it matches an STR DNA profile obtained from a forensic sample;</text> </level> <level label="v"> <text>any covertly collected DNA sample, including SNPs and other genetic profiles or related information, that does not match the STR DNA profile obtained from a forensic sample shall be destroyed and may not be uploaded to any DNA database, including local, state, or federal DNA databases within CODIS, or any DNA database not authorized by local, state, or federal statute; and</text> </level> <level label="vi"> <level label="1"> <text>the law enforcement officer conducting the covert collection shall report back to the authorizing court every 30 days about the progress of the covert collection and shall make a proffer about future plans in accordance with item (iii) of this paragraph; and</text> </level> <level label="2"> <text>without good cause shown, covert collection efforts to obtain a sample shall cease after 6 months.</text> </level> </level> </level> <level label="2"> <text>The fear that a third party will refuse informed consent may not constitute a basis for seeking covert collection of a DNA sample from the third party.</text> </level> </level> <level label="h"> <level label="1"> <level label="i"> <text>Except as provided in subparagraph (ii) of this paragraph, on completion of an FGGS investigation that does not result in a prosecution or results in an acquittal, or on completion of a sentence and postconviction litigation associated with a conviction obtained through the use of FGGS, or on completion of any criminal prosecution that may arise from the FGGS, the authorizing court, or any court that ultimately has jurisdiction over any criminal case that arose from the FGGS, shall issue orders to all persons in possession of DNA samples gathered in the FGGS and all genetic genealogy information derived from the FGG analysis of those samples to destroy the samples and information.</text> </level> <level label="ii"> <level label="1"> <text>On the completion of an FGGS investigation, the genetic genealogist participating in the FGGS shall turn over to the investigator all records and materials collected in the course of the FGGS, including material sourced from public records, family trees constructed, and any other genetic or nongenetic data collected in the FGGS.</text> </level> <level label="2"> <text>The genetic genealogist may not keep any records or materials in any form, including digital or hard copy records.</text> </level> <level label="3"> <text>The genetic genealogist shall ensure that all records described under this subparagraph have been deleted or removed from any FGG website.</text> </level> <level label="4"> <text>The prosecutor shall retain and disclose any records or materials as required under the Maryland Constitution or the United States Constitution and the rules of discovery as provided in Maryland Rules 4–262 and 4–263, but may not otherwise use or share the records or materials.</text> </level> </level> </level> <level label="2"> <text>The court orders shall include the removal and destruction of any FGG profiles previously uploaded to direct–to–consumer or publicly available open–data personal genomics databases.</text> </level> <level label="3"> <text>All individuals who were not the source of the STR DNA profile obtained from the forensic sample and whose DNA was collected through informed consent or covertly during the course of the FGGS shall receive notice of that destruction by certified delivery.</text> </level> </level> <level label="i"> <level label="1"> <text>A person may not disclose genetic genealogy data, FGG profiles, or DNA samples not authorized by a court order in the course of an FGGS, or in the course of any criminal proceeding that arises from an FGGS.</text> </level> <level label="2"> <text>A person who violates this subsection is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $5,000 or both.</text> </level> </level> <level label="j"> <level label="1"> <text>A person may not willfully fail to destroy genetic genealogy information, FGG profiles, or DNA samples that are required to be destroyed in accordance with subsection (h) of this section.</text> </level> <level label="2"> <text>A person who violates this subsection is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both.</text> </level> </level> <level label="k"> <text>A person whose genetic genealogy information, FGG profile, or DNA sample is wrongfully disclosed, collected, or maintained in violation of this title has a private right of action under relevant State law guiding tort claims, and is entitled to minimum liquidated damages of $5,000 for a violation.</text> </level> <level label="l"> <text>A prosecutor in a criminal case that involves an FGGS investigation may file with the Appellate Court of Maryland an appeal from an interlocutory order by a court that excludes or suppresses evidence in the form of an STR DNA profile obtained from the FGGS.</text> </level> </section> <section article="gcp" article_name="Criminal Procedure" number="17-103" title_number="17" title_name="Forensic Genealogy" subtitle_number="1"> <level label="a"> <text>A defendant in a criminal case charged with a crime of violence under § 14–101 of the Criminal Law Article or a defendant convicted of a crime of violence under § 14–101 of the Criminal Law Article and seeking postconviction DNA testing is entitled to seek judicial authorization for an FGGS by filing an affidavit with a trial court or postconviction court certifying that:</text> <level label="1"> <text>the forensic sample to be subjected to the FGGS is biological material reasonably believed to have been deposited by a putative perpetrator and collected from:</text> <level label="i"> <text>a crime scene;</text> </level> <level label="ii"> <text>a person, an item, or a location connected to the criminal event; or</text> </level> <level label="iii"> <text>the unidentified human remains of a suspected homicide victim;</text> </level> </level> <level label="2"> <text>an STR DNA profile has already been developed from the forensic sample, was entered into the State DNA database system and the national DNA database system, and failed to identify a known individual;</text> </level> <level label="3"> <text>biological samples subjected to FGG DNA analysis, whether the forensic sample or third party reference samples, will not be used to determine the sample donor’s genetic predisposition for disease or any other medical condition or psychological trait;</text> </level> <level label="4"> <text>an FGGS shall only be conducted using a direct–to–consumer or publicly available open–data personal genomics database that:</text> <level label="i"> <text>provides explicit notice to its service users and the public that law enforcement may use its service sites to investigate crimes or to identify human remains; and</text> </level> <level label="ii"> <text>seeks acknowledgment and express consent from its service users regarding the substance of the notice described in item (i) of this item;</text> </level> </level> <level label="5"> <text>the laboratory conducting SNP or other sequencing–based testing, and the genetic genealogist participating in the FGGS, are licensed by the Office of Health Care Quality in accordance with § 17–104 of this title; and</text> </level> <level label="6"> <level label="i"> <text>informed consent in writing shall be obtained from any third party whose DNA sample is sought for the purpose of assisting an FGGS and all requirements described in § 17–102(f)(1) through (3) of this title are satisfied; and</text> </level> <level label="ii"> <text>if the third party does not consent to providing a reference sample for an FGGS investigation, neither defense nor postconviction counsel, nor anyone acting on their behalf, may covertly collect a reference sample from the third party.</text> </level> </level> </level> <level label="b"> <level label="1"> <text>If defense or postconviction counsel determines that one or more persons are putative perpetrators of the crime under investigation and it is necessary to collect a covert DNA sample from the putative perpetrator or a third party:</text> <level label="i"> <text>the authorizing court shall be notified prior to the covert collection of the putative perpetrator’s or the third party’s reference sample;</text> </level> <level label="ii"> <text>subject to paragraph (2) of this subsection, for a covert collection of a DNA sample of a third party, investigative authorities shall provide an affidavit to the court demonstrating that seeking informed consent from a third party creates substantial risk that a putative perpetrator will flee, that essential evidence will be destroyed, or that other imminent or irreversible harm to the investigation will occur;</text> </level> <level label="iii"> <text>counsel shall make a proffer to the court explaining how counsel plans to conduct the covert collection in a manner that avoids unduly intrusive surveillance of individuals or invasions to their privacy and follows the laws of the State;</text> </level> <level label="iv"> <text>for a covert collection of a DNA sample of a putative perpetrator, any putative perpetrator DNA sample that is collected covertly may only be subjected to an STR test to see if it matches an STR DNA profile obtained from a forensic sample;</text> </level> <level label="v"> <text>any covertly collected DNA sample, including SNPs and other genetic profiles or related information, that does not match the STR DNA profile obtained from a forensic sample shall be destroyed and may not be uploaded to any DNA database, including local, state, or federal DNA databases within CODIS, or any DNA database not authorized by local, state, or federal statute; and</text> </level> <level label="vi"> <level label="1"> <text>defense or postconviction counsel conducting the covert collection shall report back to the authorizing court every 30 days about the progress of the covert collection and shall make a proffer about future plans in accordance with item (iii) of this paragraph; and</text> </level> <level label="2"> <text>without good cause shown, covert collection efforts to obtain a sample shall cease after 6 months.</text> </level> </level> </level> <level label="2"> <text>The fear that a third party will refuse informed consent may not constitute a basis for seeking covert collection of a DNA sample from the third party.</text> </level> <level label="3"> <text>Any individual acting under court supervision in accordance with this subsection shall be treated as an agent of the State for purposes of enforcing State and federal constitutional protections.</text> </level> </level> <level label="c"> <level label="1"> <text>The State shall be notified that an application for judicial authorization to conduct an FGGS has been made by defense or postconviction counsel and a copy of the application shall be served on the State at the time the application is filed unless the applicant is also requesting permission from the court to redact certain portions of the application.</text> </level> <level label="2"> <text>Once a court has ruled on the motion for redactions, a copy of the application shall be served on the State within 5 days of receipt of the court order.</text> </level> <level label="3"> <text>The authorizing court shall ensure that the State is informed of the progress of the FGGS unless defense counsel or postconviction counsel can show good cause as to why that information may not be disclosed.</text> </level> </level> <level label="d"> <text>The provisions of § 17–102(h) through (k) of this title apply to any FGGS conducted by defense or postconviction counsel.</text> </level> <level label="e"> <text>A court considering an application for an FGGS from a criminal defendant shall issue the order on a showing that testing has the scientific potential to produce exculpatory or mitigating evidence and the defendant has complied with all other requirements of this section.</text> </level> <level label="f"> <text>A court order issued in accordance with subsection (e) of this section shall incorporate all certifications made in subsections (a) through (c) of this section and may describe the specific items of evidence to be tested, designate the specific laboratory facility to be used for the DNA testing, and designate the conditions under which consumptive testing can occur.</text> </level> </section> <section article="gcp" article_name="Criminal Procedure" number="17-104" title_number="17" title_name="Forensic Genealogy" subtitle_number="1"> <level label="a"> <text>The Office of Health Care Quality shall establish:</text> <level label="1"> <text>a licensing program for laboratories performing SNP or other sequencing–based testing on evidence in support of FGGS on or before October 1, 2022; and</text> </level> <level label="2"> <text>a licensing program for individuals performing genetic genealogy on or before October 1, 2024.</text> </level> </level> <level label="b"> <text>The Office of Health Care Quality shall:</text> <level label="1"> <text>develop a training program on obtaining informed consent under §§ 17–102 and 17–103 of this title; and</text> </level> <level label="2"> <text>identify and approve one or more genetic counselors to administer the training.</text> </level> </level> <level label="c"> <text>The Maryland Forensic Laboratory Advisory Committee shall:</text> <level label="1"> <text>establish best practices for laboratories performing SNP or other sequencing–based methods; and</text> </level> <level label="2"> <text>recommend regulations that establish minimum qualifications for individuals performing genetic genealogy.</text> </level> </level> <level label="d"> <level label="1"> <text>Prohibitions may not be placed on any laboratory conducting SNP or other sequencing–based testing or on genetic genealogists participating in an FGGS before the relevant licensing program is established under subsection (a) of this section.</text> </level> <level label="2"> <text>Within 1 year after the Office of Health Care Quality establishes the relevant licensing program under subsection (a) of this section, laboratories conducting SNP or other sequencing–based testing and genetic genealogists participating in an FGGS shall apply for the license required.</text> </level> </level> <level label="e"> <text>Neither the laboratory conducting SNP or other sequencing–based testing, nor a law enforcement official, may disclose genetic genealogy information without authorization.</text> </level> </section> <section article="gcp" article_name="Criminal Procedure" number="17-105" title_number="17" title_name="Forensic Genealogy" subtitle_number="1"> <level label="a"> <text>On or before June 1 annually, the Governor’s Office of Crime Prevention and Policy shall submit a publicly available report to the Governor and, in accordance with § 2–1257 of the State Government Article, the General Assembly, that shall include, for the preceding calendar year:</text> <level label="1"> <text>the number of requests for FGGS made, broken down by number of requests made by prosecutors, pretrial defendants, and postconviction defendants;</text> </level> <level label="2"> <text>the number of times FGGS was granted and the basis of each grant or denial;</text> </level> <level label="3"> <text>the number of putative perpetrators identified through FGGS;</text> </level> <level label="4"> <text>the number of covert collections of reference samples from putative perpetrators, a description of the methods used during the covert collection, the time period needed to perform the covert collection, any complaints from individuals subject to surveillance during the covert collections, and any complaints or suggestions from judges supervising the covert collections;</text> </level> <level label="5"> <text>an evaluation of the “pursued reasonable investigative leads” requirement in accordance with § 17–102(b)(4) of this title, including scientific, public, and nonforensic;</text> </level> <level label="6"> <text>the costs of the FGGS procedures;</text> </level> <level label="7"> <text>the race and age of those identified as putative perpetrators;</text> </level> <level label="8"> <text>the number of times a third party reference sample was requested and collected, and the race and age of the third parties;</text> </level> <level label="9"> <text>the number of requests made by defendants and postconviction lawyers; and</text> </level> <level label="10"> <text>the outcome of each authorized search, including whether the search resulted in an arrest or a conviction for the target offense.</text> </level> </level> <level label="b"> <text>A panel comprising judges, prosecutors, defense attorneys, public defenders, law enforcement officials, crime laboratory directors, bioethicists, racial justice experts, criminal justice researchers, civil and privacy rights organizations, and organizations representing families impacted by the criminal justice system, shall be convened to review the annual report each year and make policy recommendations.</text> </level> </section>