Questions on Kentucky's Rapid DNA Program for Sex Crime Investigations

An Associated Press report being picked up in newspapers such as the Washington Post and USA Today gives the impression that Kentucky is on the verge of replacing conventional DNA analysis of rape kits with a "rapid DNA" instrument. (1) The article states that

The equipment, known as the ANDE Rapid DNA system, can generate DNA identification from forensic samples in less than two hours, Kentucky law enforcement officials said. ...
“If you are a sexual predator in ... Kentucky, we’re going to come after you,” Kentucky State Police Commissioner Richard Sanders said at a press conference. “And we now have new equipment to come after you quicker. We now have another way to identify who you are.” ...
A 2017 federal law authorized the FBI director to issue standards and procedures for rapid DNA analysis, described as a fully automated process, according to an FBI website.The ANDE system received FBI approval last year for use in accredited laboratories, the company’s website says. A cheek swab is inserted into an ANDE device roughly the size of an office photocopier and results appear within hours. By comparison, DNA samples sent to conventional crime labs can take months to analyze.

The FBI has indeed approved the ANDE 6C Rapid DNA System for use in accredited laboratories -- but only with "[k]nown reference buccal DNA sample[s]." (2) In other words, an STR profile from a cheek swab from a known individual can be added to or checked against a database that is part of the Combined DNA Index System (CODIS). The profile from the male fraction of a sample in sexual assault case ascertained via a rapid DNA machine cannot be.

"The analysis of forensic samples by a Rapid DNA system is not ... permitted to be uploaded [or] searched in CODIS at this time." -- FBI (2)

So what does Kentucky propose to do with the rapid profiles? In a press release, Governor Matt Bevin enthused that they "can help us to identify an assailant in a matter of hours – allowing us to focus the investigations of sexual crimes more quickly than ever before." (3) Of course, it does not take months for a "conventional crime lab" to perform the steps that generate an electropherogram in the ordinary way and to interpret the data, but rapid DNA analysis is less labor intensive. That is a good thing, but how will Kentucky "identify an assailant in a matter of hours" from the rapid profile without using any CODIS database?

Even without a database, rapid DNA can help if there already is a suspect. It might further implicate the suspect, or it might exonerate him, propelling the investigation in a new direction. But that seems to be an afterthought in Kentucky's description of "how rapid DNA will be used." The press release (3) states that

By matching the DNA from the crime to an I.D. in a criminal database, this could give immediate data that focuses the investigation and get [sic] a rapist off the streets. By collecting an additional sample from the victim – just one more swab – a perpetrator’s identity can be matched within two hours."
How Rapid DNA will be used for sexual assault investigations:
● If a victim presents at a hospital or police station, and agrees to having DNA specimens taken for testing, a DNA ID can be generated to inform the investigation. This is a separate process from the Sexual Assault Kit but can be taken during the sexual assault exam.
● Once the male DNA is separated from the female DNA, an operator can test the male DNA for a definitive DNA Identification pattern. This process takes less than two hours.
● If a DNA ID is generated, it can be compared to criminal databases. If a match is found, this will provide important information to law enforcement about the attacker. It may exonerate an innocent suspect. It may connect other crimes to this attack.

The release does not explain how this "separate process" can "match[] the DNA from the crime to an I.D. in a criminal database" when the FBI has yet to approve rapid profiles for CODIS database searches. Another Kentucky State Police document (4) indicates that Kentucky somehow has been able to perform database searches with rapid DNA profiles:

The state of Kentucky has been running a pilot program for several months, using the ANDE Rapid DNA system to test samples from rape cases. It has proved invaluable in several cases where there is a match to DNA in a criminal database and to others in which a specific suspect was under consideration. This has convinced Kentucky officials to more broadly implement Rapid DNA testing.

To be clear, I have no objection to the use of a more efficient technology, but I am left puzzled. Has the FBI given Kentucky a special dispensation to use rapid profiles with CODIS databases? Is Kentucky using some database outside of that system?

And what is the basis for Kentucky's claim that inasmuch as "Rapid DNA uses Short Tandem Repeats for DNA ID, which has no coding information,.... there is no genealogy or health information gathered."? (3) The STRs certainly convey information on (close) genetic relationships. (5, 6) As for health-related information, they lie somewhere between none (like a passport number) and not much (like an ABO blood type). (7)

REFERENCES

1. Bruce Schreiner  (AP), Kentucky To Use Rapid DNA Tests for Sex Assault Cases, Wash. Post, Apr. 10, 2019, https://www.washingtonpost.com/business/technology/kentucky-to-use-rapid-dna-tests-for-sex-assault-cases/2019/04/10/a28d484e-5bd4-11e9-98d4-844088d135f2_story.html
2. Rapid DNA, www.fbi.gov/services/laboratory/biometric-analysis/codis/rapid-dna (viewed Apr. 13, 2019)
3. Kentucky State Police, Kentucky Rape Reduction with ANDE Rapid DNA News Conference Fact Sheet, available via link at https://www.ande.com/kentucky-case-study/
4. Kentucky State Police, The Use of Rapid DNA to End the Sexual Assault Epidemic, available via link at https://www.ande.com/kentucky-case-study/
5. David H. Kaye, The Genealogy Detectives: A Constitutional Analysis of “Familial Searching”, 51 Am. Crim. L. Rev. 109 (2013), preprint available at ssrn.com/abstract=2043091
6. Henry T. Greely & David H. Kaye, A Brief of Genetics, Genomics and Forensic Science Researchers in Maryland v. King, 53 Jurimetrics J. 43 (2013), available at ssrn.com/abstract=2403063
7. David H. Kaye, Mopping Up After Coming Clean About "Junk DNA", Nov. 23, 2007, available at http://ssrn.com/abstract=1032094.