Issues Associated with DNA

The Criminal Justice System does not simply start during the stage of prosecution and conviction of an accused. It starts from the time when the crime was committed and a search is made for any evidence that will link the suspect to the scene of the crime. The linking of the accused to the crime scene is not easy. With the sophisticated tools available nowadays by which a person could escape being identified, there have to be a more efficient means by which we could identify the accused and link him conclusively to the crime scene. For so many years we have searched for more efficient means that could help in identifying criminals and in linking them to the crime scene.

The traditional means of criminal investigation and detection was done through fingerprinting, confessions and paraffin tests. The efficacy of fingerprinting in the identification of criminal suspects is however limited because its source is few. Though a considerable number of criminal cases have in the past been solved because of confessions and admissions of suspects and the testimonies of eyewitnesses presented in court, there are times when the accused refuses to cooperate with the law enforcement officials or when he initially makes his confession but eventually recants his confession. The use of paraffin tests is likewise limited to cases where a gun was used. The same is true for eyewitness identifications in which the Supreme Court in the case of 388 U.S. 218, quoting Justice Frankfurter said that "What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy.”

It is because of the inherent limitations in the traditional means of crime solving is no longer helpful in the task of criminal investigation. Thus, so many criminals are out in the streets because we do not have any means of proving their guilt and linking them to the crime scene. There have to be a more efficient and effective means of crime solving.

B. DNA

In 1985, Alec Jeffreys discovered that every human being has his own DNA which is unique from the DNA of others. DNA can be easily found in saliva, skin, blood, semen and hair follicles. Scientists conceived of the idea that this uniqueness of Human DNA can be maximized and that this could be used as a tool for law enforcement. With the improvement in scientific technology DNA samples can now be extracted from the crime scenes and can be compared with DNA samples taken from the suspects. It was however only in 1988 that DNA fingerprinting was actually used to convict a person and to send him to jail.

Since its discovery, DNA has been used criminal investigation. It has helped in the conviction of accused and in the exoneration of an accused wrongly convicted. It can likewise help in locating missing persons. Consider the case of Ryan Matthews which is the 115^th death row inmate who was to be released because of DNA evidence. (“Ryan Matthews: Juvenile Offender in Louisiana”)

Another significant development in the field of forensic technology is the development of Mitochondrial DNA. According to Edward Cheng, mitochondrial DNA may in the future help in criminal investigation because of the following features:

• a) it is more stable than the traditional DNA and so investigators may make use of it even if the source is old;
• b) it is available in larger quantities per cell;
• c) it can be extracted from samples in which the traditional DNA cannot.

All states now have recognized the potential of DNA technology and that it could be useful in the criminal justice system of a country. They are also in agreement on the importance of maintaining a database which can store the DNA profiles of people. The only difference is that there is some disagreement insofar as the kind of crime that will be included in the DNA databank. Some states limit the crime to rape cases and sexual assault cases. Some states, however, have broader legislation in the sense that they included other crimes such as homicide or murder cases. On the other hand, there are states which maintain a database for all convicted offenders.

Criticisms Against use of DNA

Despite the vast potentials of DNA technology in the aspect of crime solving, there are several concerns that must be addressed.

Jury Understanding and Appreciation

One of the thorny issues involving the use of DNA is the treatment by the jury of the DNA evidence and the manner by which it is presented in court. Research shows that not all jurors fully understand the complexities and technicalities of DNA evidence. In some studies, researchers found that the juries have the different level of understanding of the scientific evidence that is presented to them. Hans, citing a study conducted by Sanders, found that “after questioning the jurors in a tort case involving toxicological and epidemiological tort case, Sander’s concluded that the jury’s deliberations did not reflect a full understanding of the case but that the defense lawyers’ presentation and the judge’s instructions to the jury may have been contributing factors.”

Not only is there a problem of the limitation in the understanding of scientific evidence but also several types of research have found that they may also be deceived by the manner of the presentation of this evidence.

Consider for example the problem of coincidental match probability or the “random match probability.” If an expert witness is presented in court to testify that there is a match between the DNA found at the crime scene and that of the prime suspect, there is always the possibility that the jurors may arrive at a premature conclusion on this issue. In this instance, there is always the tendency for the jurors to focus on the findings of a match instead of the possibility that there may be an error on the part of the technician who conducted the tests.

Violation of Civil Liberties

Although the Advantages of using DNA as forensic evidence can no longer be questioned, there still lies the concern of achieving a delicate a balance between its advantages and its disadvantages. Another main issue being raised against the use of DNA and the expanding use of DNA database is that it is argued to violate individual civil liberties and privacy rights and is, therefore, unconstitutional.

The opponents of the use of DNA argued that over the years the law enforcement officers are slowly expanding the scope of their DNA database. It started with taking DNA samples from convicted offenders. In some states, DNA samples are already being taken even from those who have not yet been convicted of any criminal offense. It has also become an accepted law enforcement practice to conduct “DNA dragnets” where members of a community of a particular group are “requested” by law enforcement authorities to submit their DNA samples for testing even if they have not committed any crime or even in the absence of any probable cause for the commission of a crime. Law enforcement officers have also resorted to familial searches in cases where the DNA profile though not identical but is found to be similar to the sample taken from the crime scene. The recent trend of the collection of abandoned DNA has also gained notoriety.

At issue here is the possibility that the samples taken from these people may eventually be used for purposes other than criminal investigations. It bears stressing that the DNA profile of a person speaks a lot about his genetic background, his health and his personality that could bring disastrous results if it falls into the wrong hands. For example, the information that can be taken from a person’s DNA sample can reveal so much information about his health that may affect a person’s employment opportunities in the future. Personal information about a person’s health may also be a ground for an insurance company to refuse to grant insurance policy or to refuse on an insurance claim.

The Supreme Court has also ruled in favor of the admissibility of DNA evidence in court. In the case of People of Castro (545 N.Y.S.2d 985), examined the DNA testing procedure and examined the reliability of DNA testing. It held that

• a) DNA identification theory and practice are generally accepted among the scientific community;
• b) DNA forensic identification techniques are generally accepted by the scientific community;
• c) Pretrial hearings are required to determine whether the testing laboratory's methodology was substantially in accord with scientific standards and produced reliable results for jury consideration.

Infallibility of DNA Profiling

Another important issue is its infallibility and accuracy. The opponents of DNA profiling raise the argument that it is highly possible that there may be an error in this process and that an innocent person might be put in jail. The apprehension is not on the accuracy of the science of forensics but on the errors that may be committed by laboratory personnel in the examination and analysis of DNA samples.

In the Article “Speak Out,” Dr. Weir affirmed that although the field of forensic science is far from perfection. The potential for human error in the laboratory work can be avoided by accreditation which is now being done by a private organization called the American Society for Crime Laboratory Directors Laboratory Accreditation Board. The usual safeguards which are already inherent in the laboratory work such as the dual observation of each step and the signing and authentication of the evidence submitted for examination may also help. Each step in the laboratory work is being double-checked by the laboratory personnel to ensure the integrity and accuracy of its report. The reports must likewise be signed by the personnel who conducted the examination. Courts likewise have additional safeguards in ensuring the authenticity and accuracy of the report since before any document is presented in court it has to be identified in court by the person who conducted the examination.

Also, there are laws that provide for sanctions in case of tampering with DNA samples and records. For example, Alabama is one state which has criminalized the act of improper entry of DNA sample or record.

References:

• Cheng, Edward K. Mitochondrial DNA: Emerging Legal Issues. Retrieved 5 December 2007. In this paper presented at the Science for Judges III conference at Brooklyn Law School, Edward K. Cheng discussed the future of forensic technology. He stressed that unlike the traditional nuclear DNA or (nDNA), mitochondrial DNA or (mtDNA0 offers three primary benefits. These are: a) that mtDNA is more stable; b) available in larger quantities per cell; c) and can be extracted from samples in which the nDNA cannot. He also stressed that there is a general consensus in the scientific community about its reliability and that it has already been accepted by the federal and state courts as reliable.
• Nance, Dale A. and Morris, Scott B., "Jury Understanding of DNA Evidence: An Empirical Assessment of Presentation Formats for Trace Evidence with a Relatively Small Random Match Probability" (October 17, 2003). An experiment was conducted by Nance and Morris involving 1,520 volunteers who have been summoned for jury service by the criminal courts of Kane County, Illinois. A hypothetical rape case was presented to these volunteers. They were asked to estimate the probability that the accused was guilty of the alleged crime and to indicate whether they would convict the accused under the principle of beyond reasonable doubt. The studied revealed that if an expert testimony is presented in court to testify about the chance of coincidental match (random match probability) between the DNA sample taken at the crime scene and that of the accused, the jurors have the tendency to undervalue the forensic match evidence. This, however, has already been confirmed as a possibility in other earlier researchers. What makes this research novel is that unlike other researchers it also found that the variation in the way the random match probability is presented and explained to the jury reduces the extent of undervaluation.
• United States v. Wade (388 U.S. 218). This Supreme Court decision highlights the importance of using DNA evidence. The eyewitness testimony is the least reliable evidence compared to documentary and physical evidence. According to this decision, eyewitness identification suffers from dangers and is subjected to certain factors which may seriously affect the right of the accused to a fair trial. Given the questionable trustworthiness of eyewitness identifications, there have to be a more reliable means by which the courts can use to determine the guilt of an accused. The DNA evidence provides greater reliability for convictions.
• People of Castro (545 N.Y.S.2d 985. This is one of the early cases which have confirmed the admissibility of DNA evidence in court. This case had already laid to rest all issues involving the admissibility of DNA evidence. Also, there should be no question involving DNA evidence since this is an accepted practice even among the scientific community.