This article has been written by Atryee Dutta, pursuing a Diploma in Technology Law, Fintech Regulations and Technology Contracts from LawSikho.
It has been published by Rachit Garg.
Table of Contents
Introduction
The powerful and contentious study of DNA, the substance that makes up the biological code of most creatures, is one of the many new instruments that science has supplied for the investigation of forensic evidence. DNA analysis, also known as DNA profiling, studies DNA contained in tangible evidence such as saliva, hair, and sperm to see if it can be linked to DNA collected from specific people. In criminal prosecutions, DNA analysis has emerged as a regular kind of evidence. It is frequently used in civil proceedings, notably in matters requiring a determination of parentage or identity.
Since the initial use of DNA in a criminal case in 1986, technology and scientific research have opened up new avenues for using DNA in the legal sector and beyond. Today, DNA not only assists in the identification of offenders at crime scenes, but it also allows forensic genealogists to solve mysteries that became dormant decades back. In criminal trials across the nation, DNA evidence is utilised more frequently than ever before, both to condemn the accused and to clear people who have been falsely charged or convicted. The capacity of victim support providers to comprehend the possible value of DNA evidence in the circumstances of their clients is given more weight as a result of this expanded responsibility. This article talks about how DNA forensics is utilized in criminal investigation and trial, and delves into the national and international jurisprudence on the same.
Usage of DNA as evidence
DNA may be used to spot potential offenders and connect individuals to a crime by showing they were present in a specific location. DNA profiling also improves the criminal justice system’s efficiency. Spectator reports are untrustworthy, especially under high-pressure circumstances such as during a crime’s commission. Memory abnormalities can put fear in eyewitness evidence, according to academics in the study “The Neuroscience of Memory: Implications for the Courtroom.” DNA, on the other hand, is scientifically correct and hence more challenging to deny.
The Polymerase Chain Reaction (PCR) is the most used type of DNA analysis (PCR). Investigators have been able to successfully evaluate evidence samples of varying quality and quantity thanks to PCR. Countless copies of extremely little quantities of DNA are produced by the PCR process.
If the DNA sample of an accused’s specimen matches that of the evidential sample, the accused remains a prospective source of the specimen. Because just a subset of STR markers is examined, there is a chance that another person has the same DNA profile. If the genes in the DNA sample are uncommon, the profile may be traced to just a few people in a given community, increasing the possibility that the suspect is indeed the source of the evidence. As a result, the importance of matching profiles must be assessed using well-established statistical principles.
Furthermore, all DNA results given to courts must include match probabilities and/or possibility percentages to aid in accurately assessing the significance of the evidence found. The inclusion or elimination of a suspect considerably aids in the reconstruction of facts and the advancement of criminal inquiries. In this way, DNA evidence is precise and irreversible, in contrast, to witness accounts, which might be incomplete or prone to numerous psychological factors.
Application of DNA forensics in criminal investigation
While Swiss scientist Friedrich Miescher identified DNA in the 1860s, it was only after 1953 that biologists James Watson and Francis Crick, established that DNA existed as a three-dimensional double helix. Following that, DNA research and applications accelerated. By the 1980s, laboratories started utilising DNA to determine parentage in disputed situations.
In 1986, police requested a young geneticist called Alec Jeffreys, who had created the genetic fingerprint two years ago, to help them solve a murder mystery. In this case, two 15-year-old girls were sexually raped and slaughtered. An adolescent guy with learning difficulties was charged with the offense. In truth, he admitted to only one killing, not both. The police engaged Jeffreys and the crew to show that the adolescent was responsible for both deaths. They couldn’t do it. Instead, they established that the youngster executed neither offences. With no leads in hand, investigators and Jeffreys began creating DNA profiles of individuals in the region. When it was discovered that a local baker called Colin Pitchfork had bragged about submitting a friend’s DNA, authorities apprehended him. Pitchfork’s DNA was successfully matched with that recovered at the crime site by Jeffreys and his colleagues.
Jeffrey’s efforts caught the attention of the public. Even today, famous crime shows like CSI and NCIS regularly employ DNA evidence as narrative twists, educating the audience and, as a result, prospective jurors on the significance of DNA.
Since then, the application of DNA forensics has found a centre stage in criminal investigations and trials.
DNA forensics in the Indian Legal System
Section 53 of the 1973 Code of Criminal Procedure allows a police officer to seek the aid of a medical professional in good faith to conduct an inquiry. However, it does not allow a complainant to collect blood, sperm, or other evidence to establish criminal charges against the suspect.
The Cr. P. C. (Amendment) Act of 2005 included two new provisions that allow the investigating official to acquire DNA samples from the bodies of the suspect and the complainant with the assistance of a medical practitioner. These clauses permit medical investigation of the rape suspect and medical assessment of the rape victim, respectively. However, the acceptability of these pieces of evidence has continued to be an issue due to different opinions of the Supreme Court and several High Courts in various rulings. Judges do not reject the scientific correctness and conclusiveness of DNA testing, but in some situations, they refuse to recognize this evidence due to statutory or constitutional prohibitions, as well as public policy considerations. There is an urgent need to re-examine such sections and laws since there is no rule in the Indian Evidence Act of 1872 or the Code of Criminal Procedure of 1973 to deal with science and technology concerns.
There are provisions in the Indian Evidence Act 1872 that determine a child’s parentage, such as Section 112, which specifies that a newborn child born to a mother within 280 days of the dissolution of marriage with a man, and the mother remaining unmarried, demonstrates that the newborn belongs to the man, unless proven otherwise, but there is no specific provision that would cover modern scientific techniques. In situations of civil disputes, DNA analysis is essential in determining the parentage of a child. This evidence is especially important in criminal trials, civil matters, and maintenance proceedings in criminal trials as per Section 125 of the Cr. P. C.
Admissibility of DNA forensics in criminal trials
The admissibility of DNA evidence in court is always dependent on its correct and efficient collection, storage, and recording, which can convince the jury that the evidence submitted is credible. There is no explicit statute in India that may offer precise directions to investigative agencies and courts, as well as the method to be followed in instances used as evidence. Furthermore, there is no explicit provision in the Indian Evidence Act of 1872 or the Code of Criminal Procedure of 1973 for dealing with science, technology, and forensic science concerns. Due to the lack of such a regulation, an investigating officer faces significant difficulties in gathering evidence that utilises current mechanisms to prove the accused individual.
The DNA Technology (Use and Application) Regulation Bill introduced in 2019 seeks to regulate the use of DNA evidence and contains a Schedule of offences for which DNA evidence can be used. This Schedule mainly consists of offences under the Indian Penal Code, 1860, and some civil issues, like a suit for determination of paternity. The Bill also delves into the procedure to be followed for collecting DNA evidence, establishing and managing DNA Data Banks at national and regional levels, and establishing authority for supervising the functioning of DNA Data Banks and DNA labs. Further, the Bill lays down the collection of DNA without authorization, and unwarranted disclosure of DNA information as offences.
Challenges presented by the use of DNA forensics in criminal trials
The development of DNA technology has presented a severe threat to certain personal legal and functional rights of an individual, such as the “right to privacy” and “right against self-incrimination.” And it is for this reason that judges are often hesitant to accept testimony based on DNA testing. The right to privacy is included in the right to life and personal liberty under Article 21 of the Constitution of India. Article 20(3) offers the right against self-incrimination, which helps protect an alleged offender in a criminal case from providing evidence against himself or evidence that could convict him. However, the Supreme Court has ruled on multiple occasions that the right to personal liberty and life is not unlimited.
The Supreme Court decided in Govind Singh v. State of Madhya Pradesh that a basic right must be subject to restrictions based on compelling public interest. In another case, Kharak Singh v. State of Uttar Pradesh, the Supreme Court ruled that the right to privacy is not a constitutionally guaranteed right. It is obvious from different rulings issued by the Supreme Court over time that the rights to life and liberty guaranteed by our Indian Constitution are not absolute and may be subjected to certain restrictions. And it is on this premise that the Supreme Court upholds the validity of the laws concerning the right to life and Individual Liberty, including a medical inspection. And it is on this premise that many courts around the nation have permitted the use of DNA technology in the inquiry and production of evidence. To ensure that contemporary technology may be utilised efficiently, a special regulation that provides criteria for DNA analysis in India is urgently needed.
The Supreme Court unanimously ruled in the case of Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. that the right to privacy is safeguarded as an integral aspect of the right to life and liberty given by Article 21 and as an aspect of the liberties established by Part III of the Constitution. In doing so, it reversed prior Supreme Court decisions in M.P. Sharma and Kharak Singh, which found that confidentiality was not acknowledged under the Constitution of India. With establishing personal privacy as a basic right, this case established the need for the execution of a new data privacy legislation, broadened the extent of privacy within personal areas, and considered privacy as an essential value. This is also bound to have wide-ranging implications for the use of DNA forensics for criminal investigations and trials.
The Supreme Court’s reluctance to overturn the Delhi High Court’s ruling requiring veteran Congress politician N.D. Tiwari to submit to a DNA test is critical in terms of the admissibility of such evidence. In this instance, Rohit Shekhar claimed to be N.D. Tiwari’s biological son, however, N.D. Tiwari was unwilling to undertake such testing, claiming that it would violate his rights to privacy and subject him to public humiliation. However, the Supreme Court dismissed this argument, adding that there was no force in that argument as the results of the test would not be divulged to anybody and would be kept in a sealed envelope. The Supreme Court went on to say that they wanted the young man to seek justice and that he should not be left without recourse. It would be extremely fascinating to observe how Indian courts will enable DNA technology to be admissible in the future.
International jurisprudence on the use of DNA forensics in criminal trials
Anna Anderson claimed to be Grand Duchess Anastasia Nikolaevna of Russia in the 1950s. Following her death in the 1980s, samples of her tissue held at a Charlottesville, Virginia, hospital following a medical procedure were examined using DNA fingerprinting and revealed that she had no tie to the Romanovs. Despite admitting to the rape and murder of a girl in Leicester, the place where DNA testing was first discovered, Richard Buckland was acquitted in 1986. It was the first time DNA fingerprinting was used in a criminal inquiry.
For the first time in criminal court, genetic profiling was applied in prosecuting a man accused of illicit relations with a mentally challenged 14-year-old girl who birthed his child in 1987. In 1987, Floridian rapist Tommy Lee Andrews became the very first individual in the USA to be found guilty of raping a woman during one robbery using DNA evidence; he was arrested on November 6, 1987, and sent to 22 years behind bars. Gary Dotson of Chicago was the first individual whose verdict was reversed using DNA evidence in 1989.
DNA evidence was utilized in 1992 to confirm that Nazi physician Josef Mengele was cremated in Brazil as Wolfgang Gerhard. Samples from one palo verde plant were utilised to convict Mark Alan Bogan of homicide in 1992. DNA from seed pods of a tree recovered at the murder scene matched DNA from seeds found in Bogan’s vehicle. This is the first time plant DNA has been introduced in a criminal prosecution.
Kirk Bloodsworth became the first person to be accused of murder and condemned to death in 1993, whose sentence was reversed thanks to DNA evidence. The homicide and rape of Mia Zapata, lead vocalist of Seattle punk band The Gits, in 1993 went unexplained for nine years. Several years after the murder, a basic search in 2001 was unsuccessful, but the murderer’s DNA was recovered after he was arrested. In 2002, he was convicted in Florida for robbery and domestic abuse.
In the current world, DNA evidence plays a major role in determining the crime of the accused, and several countries, including but not limited to the UK, Australia, Kuwait, etc. use this as significant evidence.
UK
In the United Kingdom, the procedures for DNA Analysis databasing vary among three major regions. The National DNA Database (NDNAD) in England and Wales, administered by the FSS on account of the Association of Chief Police Officers, is a collection of genetic profiles acquired from persons suspected of involvement in crimes as well as crime scenes themselves.
Representatives of the Scottish Executive proposed retaining the DNA of innocent people before the passage of the Criminal Justice (Scotland) Act 2003. So far, the Scottish Executive has opposed the keeping of DNA from people who have not been convicted of a crime.
In England and Wales, approval to allow the authorities to use a freely provided DNA sample must be received in two ways: first, the authorities must seek an individual’s express permission to use a DNA test for the specific purpose of the particular examination in which it is used taken; second, consent must be acquired for that profile to be updated onto the NDNAD. In England and Wales, the agreement to have a freely collected sample placed in a database is irrevocable. In Scotland, a new law in the Criminal Justice (Scotland) Act 2003 allows approval to be provided for a profile to be placed onto a ‘volunteers database.’ One feature of the consent provisions in Scotland is that it can be revoked at any time in the future, and the individual’s personal profile can be erased from the system.
According to recent figures, the UK DNA database has over five million profiles, the majority of which are active offenders, and it is regarded as the largest repository on an international scale.
The UK Government has agreed upon the Protection of Freedoms Act 2012, which specifies that every convicted or suspected criminal shall be fingerprinted and have DNA analysed. If a person is no longer considered a suspect and there are no criminal records for three years in a row, DNA data can be erased from the database. If a DNA sample matches a profile in the UK database, police may arrest the accused, but only if such testimony is supported by further evidence in the case. Furthermore, if a guilty plea is entered, the Crown Prosecution Service in the United Kingdom will proceed with the investigation.
Australia
Most Australian forensic laboratories that frequently work on criminal matters have employed Profiler Plus, a professional profiler tool licensed by the USA-based Perkin Elmer Corporation since 1999. On various occasions, Australian courts have authorised a person qualified in one profession to submit an opinion based on other subjects. Furthermore, there is substantial debate regarding how DNA evidence should be presented in a way that is both factual and understandable to individuals with no scientific experience, particularly judges (Roberts 1998, p. 36; Heyes 2001, p. 13; Jowett 2001). In presenting the jurors, Australian trial attorneys and judges are not entitled to define the phrase “beyond a reasonable doubt,” but the remarks regarding the use of forensic evidence may have a significant impact on how jurors approach their assignment. Jury members deciding on a judgement must evaluate the DNA evidence, as well as any other evidence presented during the trial, in determining if or not the accused’s involvement has been established beyond a rational doubt.
Conclusion
The most evident advantage of using DNA recognition in criminal cases is when the technology establishes a connection between such a suspected person and an offence, ultimately leading to the perpetrator’s conviction and punishment. This may also avoid costly options such as the employment of inefficient, traditional investigative procedures, which may lead investigators to target the incorrect individual in some situations. The availability of DNA evidence may also influence offender behaviour in beneficial ways, such as motivating admissions or damning attempts to avoid DNA analysis or adequately explain a profile match. The greater chance of identification, particularly with the development of DNA profiles, may even dissuade some offenders from engaging in additional illegal conduct.
DNA evidence’s investigative capability may potentially generate pressures to collaborate with police investigations, undermining the safeguard against self-incrimination. The application of DNA evidence entails intrusions of physical integrity and the examination of personal genetic data, some of which could be legally and illegally compelled. While the privacy violations caused by DNA sample processes and the analysis of non-coding DNA are relatively minimal, the greater use of Forensic evidence by detectives may result in a significant shift in the entire realm of criminal investigative practice.
References
1. https://onlinedegrees.uwf.edu/articles/the-history-of-dna/
2. https://online.maryville.edu/blog/how-is-dna-profiling-used-to-solve-crimes/
4. https://www.ojp.gov/pdffiles1/nij/bc000657.pdf
5. https://www.ijhssi.org/papers/v2(7)/Version-3/C0273015021.pdf
6. https://cen.acs.org/analytical-chemistry/Thirty-years-DNA-forensics-DNA/95/i37
9. https://www.aic.gov.au/sites/default/files/2020-05/tandi226.pdf
10. https://www.isdc.ch/media/1953/e-2020-02-20-016-use-of-dna.pdf
12. https://www.nature.com/articles/543589b
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
