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

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

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Published by Helix
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.
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.

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 Helix Vol. 2:112-115 (2012)
112
Copyright © 2012 Helix
ISSN2277
 –
3495(Print)
 
Importance of DNA in Crime Investigation: An Analysis of LegalAspects 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 polymorphicgenetic loci in DNA has revolutionized the way weview the role of science in crime scene investigation.In last two decades tremendous forward had beenmade with new DNA technologies that permitindividual identification of source from incrediblysmall amounts of evidence that may have beendeposited in many days, months, or even years beforerecovery by law enforcement. This paper analysesaspects of DNA fingerprinting and its problem andprospects. Paper also covers some of the DNAtechnologies used in forensic investigations, issues of admissibility of DNA tests under the umbrella of Frye test evolved in
Frye v. United State
for scientificevidence to be admissible in court of law. Right toprivacy is big hurdles in the pathway of forensicInvestigation, authors has emphasized internationalinstruments relating to right to privacy and importantcase laws decided by supreme court of India andfrom other nations has been covered. And in the lastpart of the paper Ethical, Legal, and Social Concernsabout 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 Jeffrey‘s, 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 probablybecause DNA and fingerprints because both providefingerprints. Practical Applications of DNAFingerprinting is for Paternity and maternity becausea person inherits his or her VNTRs from his or herparents, VNTR patterns can be used to establishPaternity and Maternity.
Criminal Identification and Forensics
- DNAisolated from blood, hair, skin cells, or other geneticevidence left at the scene of a crime can becompared, through VNTR patterns, with the DNA of a criminal suspect to determine guilt or innocence.
Personal Identification
- The notion of using DNAfingerprints as a sort of genetic bar code to identifyindividuals has been discussed, but this is not likelyto happen anytime in the foreseeable future.
DNA technologies used in forensic investigations-
The aim and objective of DNA fingerprinting is todetect the differences among the DNA samples takenfrom different individuals.
Restriction Fragment Length Polymorphism(RFLP)
 – 
 
RFLP is a technique for analyzing thevariable lengths of DNA fragments that result fromdigesting 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) isused to make millions of exact copies of DNA from abiological sample. DNA amplification with PCRallows DNA analysis on biological samples as smallas a few skin cells. The RFLP is a complex procedurethat can be subdivided into seven individual steps:1. DNA extraction,2. Restriction digestion,3. Gel electrophoresis,4. Southern transfer,5. Hybridization,6. Autoradiography and7. Interpretation of DNA print.
STR Analysis:
Short tandem repeat (STR) technology is used toevaluate specific regions (loci) within nuclear DNA.Variability in STR regions can be used to distinguishone DNA profile from another. The Federal Bureauof Investigation (FBI) uses a standard set of 13specific STR regions for CODIS. CODIS is asoftware program that operates local, state, andnational databases of DNA profiles from convictedoffenders, unsolved crime scene evidence, andmissing persons.
Y-Chromosome Analysis:
The Y chromosome is passed directly from father toson, so analysis of genetic markers on the Ychromosome is especially useful for tracingrelationships among males or for analyzing evidenceof multiple male contributors.
 
 Helix Vol. 2:112-115 (2012)
113
Copyright © 2012 Helix
ISSN2277
 –
3495(Print)
 
The term DNA fingerprint is, in one sense, amisnomer, the probability of a DNA fingerprintbelonging to a specific person needs to be reasonablyhigh--especially in criminal cases, where theassociation helps establish a suspect's guilt orinnocence. Further experimentation in this area,known as population genetics, has been surroundedwith and hindered by controversy, because the idea of identifying people through genetic anomalies alongracial lines comes alarmingly close to the eugenicsand ethnic purification movements of the recent past,and, some argue, could provide a scientific basis forracial discrimination. Serious threat is also labtechnician who did not conduct an experimentaccurately 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 besufficiently established to have gained generalacceptance 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 onrules of evidence. Federal rule 401 defines relevantevid
ence as ―evidence having tendency to make the
existence of any fact that is of the consequence to thedetermination of the action more probable or lessprobable than it would be without the evidence. Theproblem with this test was that the evidenceeventually admitted is not necessarily being reliable.In
 Daubert v. Merell Dow Pharmaceuticals
2
, thecourt enunciated a new standard for determining theadmissibility of novel scientific evidences based onfederal Rule Evidence 702. Recognising that, giventhe often rapid advances being made in science, newdiscoveries and theories might be perfectly sound but
still test established a ―gate keeping‖ role for the trial
court and enunciated several factors to be consideredby the trial judge in determining the admissibility of new scientific evidence. Although consideration
could be given to the level to the level of ―generalacceptance‖ within the community, the Frye test was
no longer the sole factor determining admissibility. Inplace of the Frye test for admissibility, the SupremeCourt offered a scheme to assist judges indetermining the admissibility of expert testimony inDaubert case: - Whether the method can and havebeen tested; The known or potential error rate of the
1
293 F. 1013 (1923)
2
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).
method employed by the expert witness, as it helpsthe courts to determine the reliability of the results;Finally, whether it has gained general acceptancewithin the relevant scientific community.
Is There a Constitutional Right to Testing Underthe Brady Doctrine?
In
 Brady v. Maryland 
,
3
the Supreme Court held that adefendant has a constitutional right at or before trialto be informed of exculpatory evidence in the handsof the State. A number of courts have extended Bradyto requests for DNA testing even when the request ismade after trial and although it is potentiallyexculpatory evidence that is being sought. In
 Arizonav. Youngblood 
4
, petitioner claimed that his convictionshould be vacated because the State before trial haddestroyed rectal swabs containing sperm which couldhave demonstrated his innocence. These SupremeCourt decisions provide an avenue for access totesting even when no formal discovery proceduresexist as part of the post-conviction statutory schemein that jurisdiction. An early case applying Brady isMatter of 
 Dabbs v. Vergari
5
, in which an inmaterequested access to perform DNA testing as a preludeto a possible motion to vacate the conviction basedon newly discovered evidence. The prosecutionopposed the motion on the grounds that no statutoryright to the requested post-conviction discovery thenexisted in New York; that the results of proposedtesting were speculative; and that granting thepetitioner's request would prompt other convicted sexoffenders to demand DNA testing. The Dabbs court,relying on Brady, supported its decision to allow therequested testing as saying that defendant has aconstitutional right to be informed of exculpatoryinformation known to the State.In
State v. Thomas
6
, the court rejected latenessarguments from the prosecution and held that DNAevidence is such a potentially powerful tool todemonstrate actual innocence that even the mostunyielding procedural bars must give way. Othercases embracing a Brady analysis are:
Sewell v.State
7
inmate allowed access to rape kit for DNAtesting 10 years after conviction notwithstanding theabsence of discovery procedures. In
 Mebane v. State
8
 (requests for DNA testing can be granted underBrady when proper showing made).
3
373 U.S. 83 (1963)
4
488 U.S. 51 (1988)
5
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)
 
 Helix Vol. 2:112-115 (2012)
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Copyright © 2012 Helix
ISSN2277
 –
3495(Print)
 
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, thereforewhen a foetus has been preserved in All IndiaInstitute of Medical Sciences, the petitioner who hasalready discharged the same cannot claim that itaffects her right to privacy something that she herself has discharged, probably with her consent, is claimedto be subjected to DNA test. In that view of thematter, in the peculiar facts, it cannot be termed thatthe petitioner has any right of privacy
10
 
Ethical, Legal, and Social Concerns about DNAData banking:
The primary concern is privacy. DNA can provideinsights into many intimate aspects of people andtheir families including susceptibility to particulardiseases, legitimacy of birth, and perhapspredispositions to certain behaviors and sexualorientation. This information increases the potentialfor genetic discrimination by government, insurers,employers, schools, banks, and others
11
In the UK, allarrested persons must submit to a DNA test, On theother hand, in the USA, the individual State decideswho to test and who not to test. A landmark casechanged the practices of the State of New Mexico,regarding DNA testing. The Katie's Bill was passedrequiring DNA testing for almost all felony chargeswhen suspected of a felon.Collected samples are stored, and many state laws donot require the destruction of a DNA record orsample after a conviction has been overturned. Sothere is a chance that a person's entire genome maybe available
 — 
regardless of whether they wereconvicted or not. Practicality is also concern for DNAsampling and storage. Who is chosen for samplingalso is a concern. In the United Kingdom, all suspectscan be forced to provide a DNA sample. Thisempowers police officers, rather than judges and juries, to provide the state with intimate evidence thatcould lead to "investigative arrests." In the UnitedStates each state legislature independently decideswhether DNA can be sampled from arrestees orconvicts. In 2006, the New Mexico state legislaturepassed Katie's Bill, a law that requires the police to
9
2002 (62) DRJ 851
10
 
 Ibid 
 
11
DNA and Forensic Science, Available athttp://www.forensicprofiles.com/dna.html, last visited, 20/2/2012.
take DNA samples from suspects in most felonyarrests.
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, whenDNA is collected and used to create DNA profile thatis stored in a database and searched repeatedly
without the Individual‘s knowledge or consent.
Second, privacy concerns are raised by the
Government‘s retention of the biological sample
from which the profile is derived. The FourthAmendment to the U.S. Constitution serves as thelens through which the legal system examines thelegitimacy 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 bodyconstitutes search under the Fourth Amendment. This
is the case with so called ―DNA dragnets
13
,‖ in which
police seek to collect samples from many individualsmeeting a general description
 — 
such as all black males living in a particular geographic area
 — 
noneof whom individually is a suspect, but one of whommay have committed the crime. DNA dragnets areostensibly voluntary, but those from whom samplesare requested may fear stigmatization or increasedscrutiny if they refuse to participate. Privacyconcerns are also implicated when police collectD
 NA that is no longer on someone‘s person,sometimes termed as ―abandoned DNA.‖
So, issues regarding Privacy from Article 12
14
of TheUniversal Declaration of human rights, Article 17
15
 of the International Covenant on Civil and Politicalrights (ICCPR1966) and Article-8 of the EuropeanConvention on Human Rights
16
(1950) come intoconflict with DNA Forensics.
Constitution of India
17 
 
does not provide explicitly for ‗right to privacy‘ as a
fundamental right or s there expresses provision inany other statute but has been inferred from article 21of the Indian Constitution. In
Gobind v. state of  Madhya Pradesh
18 
 
it was noted that right to privacy
12
 
Katie‘s Bill, Available at
http://thenewsherald.com/articles/2010/02/10/life/doc4b7022a1a5d89931782690.txt Last visited 21/2/2012.
13
DNA Dragnet, Available athttp://www.abajournal.com/magazine/article/dna_dragnet/, Lastvisited 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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