Hazards of DNA profiling Laws

UPDATES

DNA evidence can go terribly wrong: lawyer in Malaysiakini by Fauwaz Abdul Aziz | Sep 3, 08

A lawyer who has successfully argued against the seemingly incontrovertible findings of DNA evidence in one court case said it is “unthinkable” for the government to treat such evidence as irrefutable and absolute.

puravalen pc on missing pi balasubramaniam 180708 m puravalenM Puravelan (right), who represented G Sara Lily, had in 2006 successfully fought for the court to recognise a body that had been kept for two years at the Universiti Malaya Medical Centre mortuary was that of her deceased son, Francis Udayappan.

Despite a testimony by a DNA expert to the contrary, the presiding magistrate Nazran Mohd Sham said the clothes, height, gender, relevant period of death and discovery of the body meant there were “reasonable grounds to suspect” that the deceased was indeed Sara Lily’s son Francis.

Puravelan said the government failed to learn from that episode judging by its attempt to bulldoze the DNA Identification Bill 2008 through without placing legal safeguards to prevent or correct deliberate and accidental errors of scientific evidence.  

“No doubt, there are uses for DNA as it is a valuable tool of evidence. But just as with other forms of proofs, DNA evidence must also be subject to the normal rules of evidence, and that includes being able to subject it to cross-examination and so on,” he said when contacted.

DNA evidence considered conclusive proof

Last week, opposition MPs failed to force the DNA Bill to a special committee for reconsideration before being debated further in Parliament.

 

dna bill some contentious provisions 020908The DNA bill, they claimed, exposes suspects to both police and political manipulation.

Among their concerns with the DNA Identification Bill is Section 24, which states that DNA evidence should be admissible as “conclusive proof” in court.

Recollecting the Udayappan case, Puravelan said the Chemistry Department had “certified” its finding – that Udayappan was not Sara Lily’s son – despite its own expert’s admission that there imbalances, degradations and deteriorations of quality had occurred in the DNA sample.

He also pointed out that justice Nazran in his verdict said the DNA report, which had denied any link between the recovered body and Sara Lily, could not be relied upon due to the possibility of contamination.

“It’s unthinkable what may happen if they allow DNA evidence to be exempted from being challenged in court – it goes against all cornerstones of law,” said Puravelan.

Australian police review 7,000 DNA-related cases

In Australia early last month, Victoria’s police announced they were reviewing 7,000 cases that had used DNA evidence after it was found that DNA evidence used to convict a murder suspect, Russell John Gesah, was contaminated.

Gesah was earlier convicted of a 1984 murder of a mother and her young daughter.

The contamination reportedly occurred when clothing containing Gesah’s DNA – from an unrelated offence – were examined on the same day as the clothing from the murder case.

The Australian police have subsequently apologised to Gesah.

Accidental contamination of DNA can occur anywhere during the handling of DNA samples such as during its collection, testing, analysis, and storage.

What more when the police force – in which corruption is said to be rampant – is in control of DNA forensics, said Puravalen.

According to him, a mistaken conviction based on DNA evidence that goes unchallenged in court can have an effect more disastrous than merely imprisoning the wrong man.

“We have to remember that in Malaysia, we have a mandatory death sentence for certain offences. It’s frightening to think what can happen (if such evidence is deemed as conclusive),” he said.

Hazards of DNA profiling Laws

Om Prakash in Malaysiakini: 

I am strongly against the bill to force anyone to give DNA samples for any criminal investigations or legal matter.

Although DNA analysis has become a modern day tool for various reasons Malaysia is not ready to implement this modern tool primarily because

  1. the authorities cannot guarantee impartiality
  2. and cannot guarantee procedural transparency
  3. as well as cannot guarantee protection of samples, records and samples.

Malaysia can only restore faith in DNA usage for criminal investigations and legal matters if complete faith_

  • in the police,
  • judiciary and
  • AG’s chambers

-has been earned through the complete dismantling of racial, religious and partisan policies of the government to divide and rule its people.

Given the record of investigative inefficiency and political interference as perceived largely by the public, the DNA bill cannot be allowed to be passed in Parliament.

The onus must be on those who want to freely give their DNA sample to prove their innocence. Let us not be threatened with another draconian law like the ISA for political and law- enforcement expediency.

We are not ready to just trust anybody yet.

From Wikipedia, the free encyclopedianetic fingerprinting (also called DNA testingDNA typing, or DNA profiling) is a technique used to distinguish between individuals of the same species using only samples of their DNA. Although two individuals will have the vast majority of their DNA sequence in common, DNA profiling exploits highly variable repeat sequences called Variable Number Tandem Repeats (VNTRs). These loci are variable enough that two unrelated humans are unlikely to have the same alleles. Except Chimera (genetics) which have two different set of DNA.[1] The technique was first reported in 1984 by Dr. Alec Jeffreys at the University of Leicester,[2] and is now the basis of several national DNA identification databases.

Reference samples

DNA identification must be done by an extraction of DNA from substances such as:

  • Personal items (e.g. toothbrush, razor, …)
  • Banked samples (e.g. banked sperm or biopsy tissue)
  • Blood kin (biological relative)
  • Human remains previously identified

Reference samples are often collected using buccal swab.

DNA fingerprinting methods

  1. RFLP analysis(Restriction fragment length polymorphism)
  2. PCR analysis(polymerase chain reaction)
  3. STR analysis (Short tandem repeats)
  4. AmpFLP (Amplified fragment length polymorphism)
  5. Y-chromosome analysis 
  6. Mitochondrial analysis (Mitochondrial DNA)

RFLP analysis; the Southern blot technique is laborious, and requires large amounts of undegraded sample DNA. Also, Jeffreys’ original technique looked at many minisatellite loci at the same time, increasing the observed variability, but making it hard to discern individual alleles (and thereby precluding parental testing).

PCR analysis;It was also difficult to determine a DNA profile for mixed samples, such as a vaginal swab from a sexual assault victim.

STR analysis;The polymorphisms displayed at each STR region are by themselves very common, typically each polymorphism will be shared by around 5 – 20% of individuals. 

AmpFLP; One popular locus for fingerprinting was the D1S80 locus. As with all PCR based methods, highly degraded DNA or very small amounts of DNA may cause allelic dropout (causing a mistake in thinking a heterozygote is a homozygote) or other stochastic effects. In addition, because the analysis is done on a gel, very high number repeats may bunch together at the top of the gel, making it difficult to resolve. AmpFLP analysis can be highly automated, and allows for easy creation of phylogenetic trees based on comparing individual samples of DNA. Due to its relatively low cost and ease of set-up and operation, AmpFLP remains popular in lower income countries.

National DNA databases

The United States maintains the largest DNA database in the world: the Combined DNA Index System, with over 5 million records as of 2007[3]. The United Kingdom maintains the National DNA Database (NDNAD), which is of similar size. The size of this database, and its rate of growth, is giving concern to civil liberties groups in the UK, where police have wide-ranging powers to take samples and retain them even in the event of acquittal.

When a match is made from a National DNA Databank to link a crime scene to an offender who has provided a DNA Sample to a databank that link is often referred to as a cold hit. A cold hit is of value in referring the police agency to a specific suspect but is of less evidential value than a DNA match made from outside the DNA Databank.

Considerations when evaluating DNA evidence

In the early days of the use of genetic fingerprinting as criminal evidence, juries were often swayed by spurious statistical arguments by defense lawyers along these lines: given a match that had a 1 in 5 million probability of occurring by chance, the lawyer would argue that this meant that in a country of say 60 million people there were 12 people who would also match the profile. This was then translated to a 1 in 12 chance of the suspect being the guilty one. This argument is not sound unless the suspect was drawn at random from the population of the country. In fact, a jury should consider how likely it is that an individual matching the genetic profile would also have been a suspect in the case for other reasons. Another spurious statistical argument is based on the false assumption that a 1 in 5 million probability of a match automatically translates into a 1 in 5 million probability of guilt and is known as theprosecutor’s fallacy.

When using RFLP, the theoretical risk of a coincidental match is 1 in 100 billion (100,000,000,000). However, the rate of laboratory error is almost certainly higher than this, and often actual laboratory procedures do not reflect the theory under which the coincidence probabilities were computed. For example, the coincidence probabilities may be calculated based on the probabilities that markers in two samples have bands in precisely the same location, but a laboratory worker may conclude that similar—but not precisely identical—band patterns result from identical genetic samples with some imperfection in the agarose gel. However, in this case, the laboratory worker increases the coincidence risk by expanding the criteria for declaring a match. Recent studies have quoted relatively high error rates which may be cause for concern [1]. In the early days of genetic fingerprinting, the necessary population data to accurately compute a match probability was sometimes unavailable. Between 1992 and 1996, arbitrary low ceilings were controversially put on match probabilities used in RFLP analysis rather than the higher theoretically computed ones [2]. Today, RFLP has become widely disused due to the advent of more discriminating, sensitive and easier technologies.

STRs do not suffer from such subjectivity and provide similar power of discrimination (1 in 10^13 for unrelated individuals if using a full SGM+ profile) It should be noted that figures of this magnitude are not considered to be statistically supportable by scientists in the UK, for unrelated individuals with full matching DNA profiles a match probability of 1 in a billion (one thousand million) is considered statistically supportable (Since 1998 the DNA profiling system supported by The National DNA Database in the UK is the SGM+ DNA profiling system which includes 10 STR regions and a sex indicating test. However, with any DNA technique, the cautious juror should not convict on genetic fingerprint evidence alone if other factors raise doubt. Contamination with other evidence (secondary transfer) is a key source of incorrect DNA profiles and raising doubts as to whether a sample has been adulterated is a favorite defense technique. More rarely, Chimerism is one such instance where the lack of a genetic match may unfairly exclude a suspect.

Fake DNA evidence

The value of DNA evidence has to be seen in light of recent cases where criminals planted fake DNA samples at crime scenes. In one case, a criminal even planted fake DNA evidence in his own body: Dr. John Schneeberger of Canada raped one of his sedated patients in 1992 and left semen on her underwear. Police drew Schneeberger’s blood and compared its DNA against the crime scene semen DNA on three occasions, never showing a match. It turned out that he had surgically inserted a Penrose drain into his arm and filled it with foreign blood and anticoagulants.

[edit]DNA Evidence as Evidence in Criminal Trials

Evidence
Part of the common law series
Types of evidence
Testimony · Documentary evidence
Physical evidence · Digital evidence
Exculpatory evidence · Scientific evidence
Demonstrative evidence · Real evidence
Eyewitness identification · DNA · Lies
Relevance
Burden of proof · Laying a foundation
Subsequent remedial measure
Character evidence · Habit evidence
Similar fact evidence
Authentication
Chain of custody
Judicial notice · Best evidence rule
Self-authenticating document
Ancient document
Witnesses
Competence · Privilege
Direct examination · Cross-examination
Impeachment · Recorded recollection
Expert witness · Dead man statute
Hearsay (and its exceptions)
Hearsay: in U.K. law · in U.S. law
Confessions · Business records
Excited utterance · Dying declaration
Party admission · Ancient document
Declarations against interest
Present sense impression · Res gestae
Learned treatise  · Implied assertion
Other areas of the common law
Contract law · Tort law · Property law
Wills and Trusts · Criminal law

England and Wales

Evidence from an expert who has compared DNA samples must be accompanied by evidence as to the sources of the samples and the procedures for obtaining the DNA profiles.[6]The judge must ensure that the jury must understand the significance of DNA matches and mismatches in the profiles. The judge must also ensure that the jury does not confuse the ‘match probability’ (the probability that a person that is chosen at random has a matching DNA profile to the sample from the scene) with the ‘likelihood ratio’ (the probability that a person with matching DNA committed the crime). In R v. DohenyEWCA Crim 728 (1996). Phillips LJ gave this example of a summing up, which should be carefully tailored to the particular facts in each case:

Members of the Jury, if you accept the scientific evidence called by the Crown, this indicates that there are probably only four or five white males in the United Kingdom from whom that semen stain could have come. The Defendant is one of them. If that is the position, the decision you have to reach, on all the evidence, is whether you are sure that it was the Defendant who left that stain or whether it is possible that it was one of that other small group of men who share the same DNA characteristics.

Juries should weigh up conflicting and corroborative evidence, using their own common sense and not by using mathematical formulae, such as Bayes’ theorem, so as to avoid “confusion, misunderstanding and misjudgment”.[7]

[edit]Presentation and evaluation of evidence of partial or incomplete DNA profiles

R v Bates (2006) EWCA Crim 1395 Moore-Bick LJ said:

“We can see no reason why partial profile DNA evidence should not be admissible provided that the jury are made aware of its inherent limitations and are given a sufficient explanation to enable them to evaluate it. There may be cases where the match probability in relation to all the samples tested is so great that the judge would consider its probative value to be minimal and decide to exclude the evidence in the exercise of his discretion, but this gives rise to no new question of principle and can be left for decision on a case by case basis. However, the fact that there exists in the case of all partial profile evidence the possibility that a “missing” allele might exculpate the accused altogether does not provide sufficient grounds for rejecting such evidence. In many there is a possibility (at least in theory) that evidence exists which would assist the accused and perhaps even exculpate him altogether, but that does not provide grounds for excluding relevant evidence that is available and otherwise admissible, though it does make it important to ensure that the jury are given sufficient information to enable them to evaluate that evidence properly”.[8]

Cases

In the 1950s, Anna Anderson claimed that she was Grand Duchess Anastasia Nikolaevna of Russia; in the 1980s after her death, samples of her tissue that had been stored at a Charlottesville, Virginia hospital following a medical procedure were tested using DNA fingerprinting and showed that she bore no relation to the Romanovs[11]

In 1987, British baker Colin Pitchfork was the first criminal caught using DNA fingerprinting inLeicester, the city where it was first discovered.

In 1987, Florida rapist Tommie Lee Andrews was the first person in the United States to be convicted as a result of DNA evidence, for raping a woman during a burglary; he was convicted on November 61987 and sentenced to 22 years in prison. [3] [4]

In 1988, Timothy Spencer was the first man in Virginia to be sentenced to death through DNA Testing for several rape and murder charges, He was dubbed “The South Side Strangler” because he killed victims on the southside of Richmond, Virginia. He was later charged with rape and 1st degree murder and was sentenced to death. He was executed on April 27, 1994. David Vasquez, initially convicted of one of Spencer’s crimes, became the first man inAmerica exonerated based on DNA evidence.

In 1989, Chicago man Gary Dotson was the first person whose conviction was overturned using DNA evidence.

In 1991, Allan Legere was the first Canadian to be convicted as a result of DNA evidence, for four murders he had committed while an escaped prisoner in 1989. During his trial, his defense argued that the relatively shallow gene pool of the region could lead to false positives.

In 1992, DNA evidence was used to prove that Nazi doctor Josef Mengele was buried inBrazil under the name Wolfgang Gerhard.

In 1993, Kirk Bloodsworth was the first person to have been convicted of murder andsentenced to death, whose conviction was overturned using DNA evidence.

The science was made famous in the United States in 1994 when prosecutors heavily relied on — and through expert witnesses exhaustively presented and explained — DNA evidence allegedly linking O.J. Simpson to a double murder. The case also brought to light the laboratory difficulties and handling procedure mishaps which can cause such evidence to be significantly doubted.

In 1994, RCMP detectives successfully tested hairs from a cat known as Snowball, and used the test to link a man to the murder of his wife, thus marking for the first time in forensic history the use of non-human DNA to identify a criminal.

In 1998, Dr. Richard J. Schmidt was convicted of attempted second-degree murder when it was shown that there was a link between the viral DNA of the human immunodeficiency virus(HIV) he had been accused of injecting in his girlfriend and viral DNA from one of his patients with full-blown AIDS. This was the first time viral DNA fingerprinting had been used as evidence in a criminal trial.

In 1999, Raymond Easton a disabled man from Swindon, England was arrested and detained for 7 hours in connection with a burglary due to an inaccurrate DNA match. His DNA had been retained on file after an unrelated domestic incident some time previously. [12]

In 2001, Wayne Butler was convicted for the murder of Celia Douty. It was the first murder inAustralia to be solved using DNA profiling.[13][14]

In 2002, DNA testing was used to exonerate Douglas Echols, a man who was wrongfully convicted in a 1986 rape case. Echols was the 114th person to be exonerated through post-conviction DNA testing.

In August 2002, Annalisa Vincenzi was shot dead in Tuscany. Some time later, Bartender Peter Hamkin, 23, was arrested in Merseyside in March 2003 on an extradition warrant heard at Bow Street Magistrates’ Court in London to establish whether he should be taken to Italy to face a murder charge. DNA “proved” he shot her, but he was cleared on other evidence.[5]

In 2003, Welshman Jeffrey Gafoor was convicted of the 1988 murder of Lynette White, when crime scene evidence collected 12 years earlier was re-examined using STR techniques, resulting in a match with his nephew.[6] This may be the first known example of the DNA of an innocent yet related individual being used to identify the actual criminal, via “familial searching”.

In June 2003, because of new DNA evidence, Dennis Halstead, John Kogut and John Restivo won a re-trial on their murder conviction. The three men had already served eighteen years of their thirty-plus-year sentences.

The trial of Robert Pickton is notable in that DNA evidence is being used primarily to identify the victims, and in many cases to prove their existence.

In March 2003, Josiah Sutton was released from prison after serving four years of a twelve-year sentence for a sexual assault charge. Questionable DNA samples taken from Sutton were retested in the wake of the Houston Police Department’s crime lab scandal of mishandling DNA evidence.

In 2004, DNA testing shed new light into the mysterious 1912 disappearance of Bobby Dunbar, a four-year-old boy who vanished during a fishing trip. He was allegedly found alive eight months later in the custody of William Cantwell Walters, but another woman claimed that the boy was her son, Bruce Anderson, whom she had entrusted in Walters’ custody. The courts disbelieved her claim and convicted Walters for the kidnapping. The boy was raised and known as Bobby Dunbar throughout the rest of his life. However, DNA tests on Dunbar’s son and nephew revealed the two were not related, thus establishing that the boy found in 1912 was not Bobby Dunbar, whose real fate remains unknown.[15]

In 2005, Gary Leiterman was convicted of the 1969 murder of Jane Mixer, a law student at theUniversity of Michigan, after DNA found on Mixer’s pantyhose was matched to Leiterman. DNA in a drop of blood on Mixer’s hand was matched to John Ruelas, who was only four years old in 1969 and was never successfully connected to the case in any other way. Leiterman’s defense unsuccessfully argued that the unexplained match of the blood spot to Ruelas pointed to cross-contamination and raised doubts about the reliability of the lab’s identification of Leiterman.[16][17][18]

In December 2005, Evan Simmons was proven innocent of a 1981 attack on an Atlanta woman after serving twenty-four years in prison. Mr Clark is the 164th person in the United States and the fifth in Georgia to be freed using post-conviction DNA testing.

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