Helix Vol.

2:112-115 (2012)

Importance of DNA in Crime Investigation: An Analysis of Legal Aspects of DNA Forensics

Abhinav Kumar*, Garima Singh
Received November 12, 2011; Accepted February 23, 2012; Published March 01, 2012

Abstract: The discovery of extensive number of polymorphic genetic loci in DNA has revolutionized the way we view the role of science in crime scene investigation. In last two decades tremendous forward had been made with new DNA technologies that permit individual identification of source from incredibly small amounts of evidence that may have been deposited in many days, months, or even years before recovery by law enforcement. This paper analyses aspects of DNA fingerprinting and its problem and prospects. Paper also covers some of the DNA technologies used in forensic investigations, issues of admissibility of DNA tests under the umbrella of Frye test evolved in Frye v. United State for scientific evidence to be admissible in court of law. Right to privacy is big hurdles in the pathway of forensic Investigation, authors has emphasized international instruments relating to right to privacy and important case laws decided by supreme court of India and from other nations has been covered. And in the last part of the paper Ethical, Legal, and Social Concerns about DNA Data banking has been also dealt with. Keywords: Polymorphic genetic loci in DNA, DNA fingerprinting, Admissibility of DNA, Right to privacy, Ethical, Legal, and Social Concerns, DNA Data banking Introduction: The term DNA fingerprinting was coined by Dr. Alec Jeffreys, in his seminal article describing how genetic analysis of DNA fragment can yield an individual specific DNA fingerprints. The term fingerprinting was associated with DNA probably because DNA and fingerprints because both provide fingerprints. Practical Applications of DNA Fingerprinting is for Paternity and maternity because a person inherits his or her VNTRs from his or her parents, VNTR patterns can be used to establish Paternity and Maternity. Criminal Identification and Forensics- DNA isolated from blood, hair, skin cells, or other genetic evidence left at the scene of a crime can be compared, through VNTR patterns, with the DNA of a criminal suspect to determine guilt or innocence.

Personal Identification- The notion of using DNA fingerprints as a sort of genetic bar code to identify individuals has been discussed, but this is not likely to happen anytime in the foreseeable future. DNA technologies used in forensic investigationsThe aim and objective of DNA fingerprinting is to detect the differences among the DNA samples taken from different individuals. Restriction Fragment Length Polymorphism (RFLP) RFLP is a technique for analyzing the variable lengths of DNA fragments that result from digesting a DNA sample with a special kind of enzyme. RFLP was one of the first applications of DNA analysis to forensic investigation. PCR Analysis- Polymerase chain reaction (PCR) is used to make millions of exact copies of DNA from a biological sample. DNA amplification with PCR allows DNA analysis on biological samples as small as a few skin cells. The RFLP is a complex procedure that can be subdivided into seven individual steps: 1. DNA extraction, 2. Restriction digestion, 3. Gel electrophoresis, 4. Southern transfer, 5. Hybridization, 6. Autoradiography and 7. Interpretation of DNA print. STR Analysis: Short tandem repeat (STR) technology is used to evaluate specific regions (loci) within nuclear DNA. Variability in STR regions can be used to distinguish one DNA profile from another. The Federal Bureau of Investigation (FBI) uses a standard set of 13 specific STR regions for CODIS. CODIS is a software program that operates local, state, and national databases of DNA profiles from convicted offenders, unsolved crime scene evidence, and missing persons. Y-Chromosome Analysis: The Y chromosome is passed directly from father to son, so analysis of genetic markers on the Y chromosome is especially useful for tracing relationships among males or for analyzing evidence of multiple male contributors.

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The term DNA fingerprint is, in one sense, a misnomer, the probability of a DNA fingerprint belonging to a specific person needs to be reasonably high--especially in criminal cases, where the association helps establish a suspect's guilt or innocence. Further experimentation in this area, known as population genetics, has been surrounded with and hindered by controversy, because the idea of identifying people through genetic anomalies along racial lines comes alarmingly close to the eugenics and ethnic purification movements of the recent past, and, some argue, could provide a scientific basis for racial discrimination. Serious threat is also lab technician who did not conduct an experiment accurately and errors in the hybridization. Admissibility of DNA Tests: Under the Frye test (evolved in Frye v. United State 1) for scientific evidence to be admissible in court of law, the technique producing the evidence must be sufficiently established to have gained general acceptance in the particular field in which it belongs. The general acceptance requirement means that the prime focus is on verifying the soundness of the scientific conclusions. Thereafter comes the Relevancy Standard Procedure which is based on rules of evidence. Federal rule 401 defines relevant evidence as evidence having tendency to make the existence of any fact that is of the consequence to the determination of the action more probable or less probable than it would be without the evidence. The problem with this test was that the evidence eventually admitted is not necessarily being reliable. In Daubert v. Merell Dow Pharmaceuticals 2 , the court enunciated a new standard for determining the admissibility of novel scientific evidences based on federal Rule Evidence 702. Recognising that, given the often rapid advances being made in science, new discoveries and theories might be perfectly sound but still test established a gate keeping role for the trial court and enunciated several factors to be considered by the trial judge in determining the admissibility of new scientific evidence. Although consideration could be given to the level to the level of general acceptance within the community, the Frye test was no longer the sole factor determining admissibility. In place of the Frye test for admissibility, the Supreme Court offered a scheme to assist judges in determining the admissibility of expert testimony in Daubert case: - Whether the method can and have been tested; The known or potential error rate of the
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method employed by the expert witness, as it helps the courts to determine the reliability of the results; Finally, whether it has gained general acceptance within the relevant scientific community. Is There a Constitutional Right to Testing Under the Brady Doctrine? In Brady v. Maryland,3 the Supreme Court held that a defendant has a constitutional right at or before trial to be informed of exculpatory evidence in the hands of the State. A number of courts have extended Brady to requests for DNA testing even when the request is made after trial and although it is potentially exculpatory evidence that is being sought. In Arizona v. Youngblood4, petitioner claimed that his conviction should be vacated because the State before trial had destroyed rectal swabs containing sperm which could have demonstrated his innocence. These Supreme Court decisions provide an avenue for access to testing even when no formal discovery procedures exist as part of the post-conviction statutory scheme in that jurisdiction. An early case applying Brady is Matter of Dabbs v. Vergari 5 , in which an inmate requested access to perform DNA testing as a prelude to a possible motion to vacate the conviction based on newly discovered evidence. The prosecution opposed the motion on the grounds that no statutory right to the requested post-conviction discovery then existed in New York; that the results of proposed testing were speculative; and that granting the petitioner's request would prompt other convicted sex offenders to demand DNA testing. The Dabbs court, relying on Brady, supported its decision to allow the requested testing as saying that defendant has a constitutional right to be informed of exculpatory information known to the State. In State v. Thomas 6 , the court rejected lateness arguments from the prosecution and held that DNA evidence is such a potentially powerful tool to demonstrate actual innocence that even the most unyielding procedural bars must give way. Other cases embracing a Brady analysis are: Sewell v. State 7 inmate allowed access to rape kit for DNA testing 10 years after conviction notwithstanding the absence of discovery procedures. In Mebane v. State8 (requests for DNA testing can be granted under Brady when proper showing made).

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293 F. 1013 (1923) 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d469, 27 U.S.P.Q.2d (BNA) 1200 Prod. Liab. Rep. (CCH) 13494, 37 Fed. R. Evid. Serv. 1, 23 Evid I, Rep. 20979(1993).

373 U.S. 83 (1963) 488 U.S. 51 (1988) 570 N.Y.S.2d 765 (1990) 6 586 A.2d 250 (1991) 7 592 N.E.2d 705, 707-708 (1992) 8 902 P.2d 494, 497 (1995)
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In Alike Kholo v. Thomas Mathew and Anr 9 it was held that Foetus is no more part of the body of the petitioner. The petitioner indeed has the right of privacy but it being not an absolute right, therefore when a foetus has been preserved in All India Institute of Medical Sciences, the petitioner who has already discharged the same cannot claim that it affects her right to privacy something that she herself has discharged, probably with her consent, is claimed to be subjected to DNA test. In that view of the matter, in the peculiar facts, it cannot be termed that the petitioner has any right of privacy10 Ethical, Legal, and Social Concerns about DNA Data banking: The primary concern is privacy. DNA can provide insights into many intimate aspects of people and their families including susceptibility to particular diseases, legitimacy of birth, and perhaps predispositions to certain behaviors and sexual orientation. This information increases the potential for genetic discrimination by government, insurers, employers, schools, banks, and others11 In the UK, all arrested persons must submit to a DNA test, On the other hand, in the USA, the individual State decides who to test and who not to test. A landmark case changed the practices of the State of New Mexico, regarding DNA testing. The Katie's Bill was passed requiring DNA testing for almost all felony charges when suspected of a felon. Collected samples are stored, and many state laws do not require the destruction of a DNA record or sample after a conviction has been overturned. So there is a chance that a person's entire genome may be available regardless of whether they were convicted or not. Practicality is also concern for DNA sampling and storage. Who is chosen for sampling also is a concern. In the United Kingdom, all suspects can be forced to provide a DNA sample. This empowers police officers, rather than judges and juries, to provide the state with intimate evidence that could lead to "investigative arrests." In the United States each state legislature independently decides whether DNA can be sampled from arrestees or convicts. In 2006, the New Mexico state legislature passed Katie's Bill, a law that requires the police to take DNA samples from suspects in most felony arrests.12 Privacy concerns: Two types of privacy interests arise in the context of the collection and use of DNA for Criminal justice. First, raised by the governmental intrusion, when DNA is collected and used to create DNA profile that is stored in a database and searched repeatedly without the Individuals knowledge or consent. Second, privacy concerns are raised by the Governments retention of the biological sample from which the profile is derived. The Fourth Amendment to the U.S. Constitution serves as the lens through which the legal system examines the legitimacy of government intrusions into the personal lives of its citizens. It ensures the right of people to be secure in their persons . . . against unreasonable searches and seizures. The Supreme Court has held that forcible, physical intrusion into the body constitutes search under the Fourth Amendment. This is the case with so called DNA dragnets13, in which police seek to collect samples from many individuals meeting a general description such as all black males living in a particular geographic area none of whom individually is a suspect, but one of whom may have committed the crime. DNA dragnets are ostensibly voluntary, but those from whom samples are requested may fear stigmatization or increased scrutiny if they refuse to participate. Privacy concerns are also implicated when police collect DNA that is no longer on someones person, sometimes termed as abandoned DNA. So, issues regarding Privacy from Article 1214 of The Universal Declaration of human rights, Article 17 15 of the International Covenant on Civil and Political rights (ICCPR1966) and Article-8 of the European Convention on Human Rights 16 (1950) come into conflict with DNA Forensics. Constitution of India17 does not provide explicitly for right to privacy as a fundamental right or s there expresses provision in any other statute but has been inferred from article 21 of the Indian Constitution. In Gobind v. state of Madhya Pradesh18 it was noted that right to privacy

2002 (62) DRJ 851 Ibid 11 DNA and Forensic Science, Available at http://www.forensicprofiles.com/dna.html, last visited, 20/2/2012.
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Katies Bill, Available at http://thenewsherald.com/articles/2010/02/10/life/doc4b7022a1a5d 89931782690.txt Last visited 21/2/2012. 13 DNA Dragnet, Available at http://www.abajournal.com/magazine/article/dna_dragnet/, Last visited 19/2/2012. 14 Article 12 UDHR 1948 15 Article 17 ICCPR 1966 16 Article 8 EUCHR 1950 17 The Constitution of India, 1950 18 1975 SC 1378
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in any event will necessary have o go through a caseby- case development. Conclusion: DNA forensic technology might be the most significant crime-fighting tool for the enforcement of law in the history of criminal justice. However, the collection and use of DNA for forensic purposes implicates deeply-held societal values. The DNA evidence does not necessarily answers all the key questions involved in a case. A DNA test might only show that he wore particular clothing but that alone may not be enough to prove that the accused is the perpetrator of the crime in question. Society must be careful not to let the use of forensic DNA technology outpaces consideration of the legal and ethical concerns that accompany it. CODIS were developed specifically to enable public forensic DNA laboratories to create searchable DNA databases of authorized DNA profiles. A match made between profiles in the forensic index can link crime scenes to each other so as to easy identification of the criminal. But the issues related to privacy concerns are continuously given proper directions. The recent refusal of the Supreme Court to dismiss the Delhi High Courts decision ordering Veteran Congress Leader N.D. Tiwari to undergo the DNA test is very important from the viewpoint of the admissibility of such evidence. In this case, Rohit Shekar has claimed to be the biological son of N.D. Tiwari, but N.D. Tiwari is reluctant to undergo such test stating that it would be the violation of his Right to Privacy and it would cause him public humiliation. But Supreme Court rejected this point stating when the result of the test would not be revealed to anyone and it would under a sealed envelope, there is no point of getting humiliated. Supreme Court further stated that we want young man to get justice; he should not left without any remedy. It would be very interesting to see that how courts in India would allow the admissibility of DNA technology in the future. References: 1. Max M. Houck & Jay A. Siegel, Fundamentals of Forensic Science, 2010, Ch.1 & Ch.11. 2. Jyotirmoy Adhikary; DNA Technology in administration of justice, 2008, Ch.3. 3. Abhijeet Sharma Guide To DNA (Test in paternity determination & criminal investigation), 2007, Ch.1& Ch.2. 4. Lawrence Kobilinsky; Thomas F. Liotti, Jamel Oeser- Sweat; DNA Forensic and Legal Applications; 2005, Ch.3. 5. Kazao Nakamoto,Masamichi Tsuboi, Gary D. Strahan; Drug DNA Interaction, structures and spectra; 2008, Ch.1, pg 1-2. 6. The Fourth Amendment Discussion and Chicago Report, Available at, http://dnasaves.org/dna_law.php, Last visited 20/2/2012. 7. Frye v. United States 293 F. 1013 (1923). 8. Admissibility of DNA Technology in the Indian Legal System, Available at http://www.legallyindia.com/1920-admissibility-ofdna-technology-in-the-indian-legal-system, Last visited 18/2/2012.

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