DNA PROFILING: A COMPARATIVE STUDY WITH REFERENCE TO INDIA, U.S.A. AND U.K.
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ISSN 2455-4782
DNA PROFILING: A COMPARATIVE STUDY WITH REFERENCE TO
INDIA, U.S.A. AND U.K.
Authored by: Ankit Anand*
* 2nd Semester LL.M. Student, Chanakya National Law University, Patna
__________________________________________________________________________________
ABSTRACT
Alec J. Jeffery, an English scientist in 1985 was the first person who proposed DNA analysis.
In the later 1980s it was largely executed by law enforcement agencies, which includes The
Federal Bureau of Investigation (FBI) and the commercial and private laboratories. It consists
of comparing and contrasting a few chosen segments and parts of DNA molecules from
different living beings. Since a DNA molecule is made up of billions of segments, there is only
a small part which is required for the purpose of analysis of genetic code. In a criminal
investigation DNA analysis is done through highly sophisticated scientific equipment. This
involves selection of such segments and their isolation after measurement. Later the suspects
DNA is compared with the DNA profile collected physically at the crime scene to match
weather both the samples are one and the same. If there is a non-match conclusively, the
particular suspect may be left free. But in case the samples match with each other, a statistical
analysis is done to find out the possibility that both the samples are of the same living being
i.e. of the suspect’s. The judges and the juries often use this statistic to settle whether the
accused is guilty or innocent. DNA is a powerful investigative tool because no two people have
the same DNA, except for identical twins. Therefore, the DNA evidence collected from the
crime scene can be linked to the suspect or the suspect can be eliminated. This paper attempts
to present the gloomy portion of admission of DNA profiling as evidence to identify criminals,
emphasizing on the scientific problems of the technique, jumping legal standards and
constitutional boundaries and potentiality and enticement for the abuse of this method.
Keywords: DNA Fingerprinting, DNA profiling, DNA Analysis, DNA Evidence.
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INTRODUCTION
Francis H. C. Crick and James D. Watson in 1953 first described DNA which is also called as
the building block or the genetic blueprint of life. DNA stands for Deoxy Ribonucleic Acid. It
is a double-stranded molecule which is long and appears like a double-helix or a twisted rope.
The sites of the ladder are comprised of alternating Phosphate and Deoxyribose sugar units
whereas the connectors in the ladder are composed of bases known as Adenine(A),
Thymine(T), Guanine(G), Cytosine(C). Essentially it is made up of Amino acids and it is
matched with the bases which are the key to determine the genetic blueprint. Throughout the
country, DNA evidence is playing a huge part in solving criminal matters than ever before, in
both convicting the guilty as well as exonerating them who are wrongly accused or convicted.
. In forensic science it is continuing to have a drastic image on the criminal justice system. The
plus point in this revolution includes the offers and opportunities to convict the guilty and
exonerate the innocent. Examples can be seen nowadays as the latest DNA technologies allow
the analysis of the smallest and the distinct kinds of biology samples which was not practically
possible even a few years ago.
Earlier, instead of DNA, blood groups and protein samples were used for analysis. Apart from
providing much information related to genetics, DNA is able to withstand the environmental
factors destroying the proteins. Old and badly degraded samples of a body fluid can still be
used to churn an ample amount of information. If the sequence of DNA molecules which is to
be used for comparison is in a large quantity, the possibility and probability of two non-related
people sharing the same sequence is quite small.
THE VALUE OF DNA EVIDENCE
DNA is a powerful investigative tool because no two people have the same DNA, except for
identical twins. Therefore, the DNA evidence collected from the crime scene can be linked to
the suspect or the suspect can be eliminated. For example, during sexual assault, biological
evidence such as hair, skin cells, semen or blood may remain on the victim's body or elsewhere
on the crime scene. Properly collected DNA can be compared to known samples to place the
suspect at the crime scene.
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DNA PROFILING METHODS
DNA Profiling technique is making its entry in the arena of forensic science and law as one of
the greatest boon after fingerprinting and claims that disputing this technology will be disputing
the law of gravity. DNA testing, DNA profiling and Genetic fingerprinting are the techniques
used to differentiate between individuals coming from same species, simply by the use of DNA
samples. The two of the most common methods of DNA profiling are RFLP and PCR method.
Firstly in RFLP (Restriction Fragment Length Polymorphism) technique DNA can be extracted
from blood, semen, pulled hair, saliva, urine and buccal swabs (inside the cheek). DNA is
extracted from the sample and a restriction enzyme is added to it. This breaks the DNA into
fragments. The fragments are separated into bands (the bar codes) during electrophoresis in an
agarose gel. The band pattern is transferred to a nylon sheet. Radioactive probes are used which
adhere to the DNA and identify the sequences. The nylon sheet is placed against x-ray film and
black bands appear where the probes have adhered to the fragments.
Secondly in PCR, (Polymerase Chain reaction) method, this system targets specific genetic
information in the cell and amplifies it a billion times so it can be analyzed. Synthetic DNA
primers are made which seek out the match or pattern which occurs once the DNA is separated.
A DNA polymerase is added which causes the DNA to make a perfect copy of itself. The matter
is heated causing the strands to separate a further time making more copies. 30 cycles will
make a billion copies. This process takes approximately three hours. PCR is useful because a
very small sample can be analyzed. However, RFLP is thought to be more accurate.1
The technology has been equally accepted worldwide due to multiple factors which also
includes “obsession” with crime fighting making the courts left with no choice but to accept
this noble scientific evidence with minimal scrutiny and actual dependability of bearing an
evidential value. If we consider the “Relevancy” aspect, it is crucial to note and differ it with
“admissibility” and “reliability”. Whenever new techniques or approaches or assumptions are
brought about before the Courts, Rules of Evidence comes into picture and quick reference is
made to reliability, scientific recognition and dangers which need to be determined much
before the judge makes up his mind.
Amidst, DNA evidences are widely debated upon its “admissibility and “relevancy” aspect.
For decades the authority for admissibility of scientific evidence was the landmark case of Fyre
1
Elizabeth A. Bennett; Robert S. Anderson, DNA Profiling, 49 ADVOCATE (VANCOUVER) 63, 78 (1991).
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v. United States2 in which the court stated, “Just when a scientific principle or discovery crosses
the line between the experimental and demonstrable stages is difficult to define. Somewhere in
this twilight zone the evidential force of the principle must be recognized, and while courts will
go a long way in admitting expert testimony deduced from a well recognized scientific
principle or discovery, the thing from which the deduction is made must be sufficiently
established to have gained general acceptance in the particular field in which it belongs”. Thus
emerged the “general acceptance” standard for admission of scientific evidence in the Courts
of law. But things changed in 1993 when the conflict between the “general acceptance
standard” and the Federal rules of Evidence was resolved in Daubert v. Merrel Dow
Pharmaceuticals, Inc3 where the issue before the court was the scientific validity of
methodology of studies presented by the plaintiff in support of the contention that the drug
Bindectim used by pregnant mothers to control nausea could cause birth defects. The court held
that the judges would assume the role of ‘gatekeeper” and ensure that any scientific evidence
that was admitted was not only relevant to the issue at hand but also reliable.4
In criminal cases, once a result is obtained from DNA samples, the interpretation is crucial to
the correct understanding of what result means and this result depends on how the results are
expressed, which in turn depends on what questions are asked. Asking the wrong question can
mislead the Judge and this is what is called the “Prosecutor’s Legacy” or “Prosecutor’s
fallacy” which came up before the Court of Appeals in a significant manner in R v. Dohney
and Adams5. “The probability of guilt could be seen in the light of a possible match between
DNA samples” is a common “prosecutor’s fallacy” or “prosecutor’s legacy”, not much earlier
but recently realized by the courts that such reliability on the DNA samples as evidence could
be tainted or vitiated.
AIMS AND OBJECTIVES
The researcher seeks to find out certain objectives which is mentioned asunder
2
293 F, 1013 (1923)
3
509 U.S. 579 (1993)
4
The court made a non exhaustive list of factors to be considered to the extent to which the theory and technology
has to be tested, the existence of a body of peer-received studies, the known error rates of the procedure and
whether the method of issues enjoys widespread acceptance. Edward J. Imwinkelrid, D.H. Kaye, “DNA Typing:
Emerging or Neglected Issues” 76 Washington Law Review, 2001, Pg 452
5
(1997) 1 Cr App R 369
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1. To enquire the accuracy of DNA profiling technique to be used in courts as evidence which
can result in self incrimination.
2. To find technical issues related to DNA profiling especially with regard to DNA
degradation, DNA mixtures and fake DNA evidences.
3. To do a comparative study of DNA profiling technology used in India, United Kingdom
and United States of America.
4. To inspect into Constitutional violations, if any, while using DNA samples as compared to
other medical tests or Forensic techniques.
RESEARCH QUESTION
1. Whether inclusion of wide DNA samples in the DNA database could lead to decreasing
effectiveness of database and carrying hardship for the authorities and whether such
collection, storage, analysis, testing, research, retention or link of custody of such DNA
samples is free from errors?
2. Whether the assumption that DNA profiling establishes a relationship between two
individuals without any doubt could be misleading and whether the conclusion reached in
such case is acceptable?
3. Whether the constitutional aspects related to collection, analysis, retention and study of
DNA profiles by authorities are manifold especially violation of Article 21 (Right to
privacy) and Article 20(3) leading to self-incrimination?
STATEMENT OF PROBLEM
DNA profiling could be a useful tool in criminal justice system but providing DNA profile of
a person is capable of revealing quite personal information including family history, genetic
history, medical information and so on , a more detailed study on the prospects, use, scope,
collection, analysis and storage of DNA samples is required. To make a body of an individual
which was once owned by him, an object of care, treatment, incrimination or incarceration is
not less than transforming the bodies from “private bodies” to “public bodies”. Keeping in
mind the prospects of the technique this paper will attempt to investigate into effectiveness and
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reliability of DNA profiling; insight into actual conviction rates based purely on the DNA
evidences and concerned constitutional and ethical violations.
SCOPE AND LIMITATION OF THE STUDY
The scope of the research is to gain a basic understanding of the nature and form of DNA
profiling. The researcher shall confine himself to the understanding of laws concerning DNA
profiling as evidence in India, USA and UK.
HYPOTHESES
The hypothesis of the research is as follows:
i. The DNA profiling laws in India is not strong enough to deal with “right against self
incrimination” provided in the Indian Constitution.
ii. The usage of DNA profiling techniques in India, USA and UK are quite similar with respect
to transforming a “private body” into a “public body”.
RESEARCH METHODOLOGY
This paper is based on doctrinal research methodology with the support of various articles,
journals, book reviews, case studies, governmental data and analysis of such collection of
information. This paper will incorporate qualitative methodology to justify my statement of
problem. This paper is mainly based upon existing data in online and offline medium where
offline medium is serving as a secondary source of information. This doctrinal research is most
suited for having a research on my topic at dissertation level due to lack of suitability of other
methodologies or effective empirical information is collected during corona pandemic period.
LITERATURE REVIEW
1. Juan Martinez Gonzales, Attacking Forensic DNA profiling Evidence for lack of
Validation, 46 GUILD PRAC. 51,55 (1989): The author of this has rightly put the title
of the article as he “attacks” the prospects of DNA evidence where he lays down
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methodology to rely upon such evidences, particularly through making a publication of
such experiments along with newer techniques and keep it open to peer review. No
wonder this was an era of advent of such technology to be used in criminal justice
systems and courts were obsessed to fight with it. Although the article at a bird’s eye
view looks, feels and conveys the messages of author about DNA evidence in a quite
subtle manner but the requirement of analysis part was missed by him if it is viewed
from criminal law perspective.
As a conclusion it would not be correct to discourage the author out rightly as the
amount of information and means of communication with regard to such a tender and
infant topic in the forensic science and legal field was not ample. Though his
suggestions might be helpful in some manner, there is dire need of comprehensive
approach altogether in modern days.
2. Elizabeth A. Bennett; Robert S. Anderson, DNA Profiling, 49 ADVOCATE
(VANCOUVER)63,78 (1991): Right from the development of DNA profiling
technique in United States of America, the available testing methodologies; legal tests
for admission of such a new scientific technique established through case studies;
collection and storage of DNA samples; problems with respect to its authenticity and
reliability; dissent of available legal tests and futuristic approach taken by the author in
this article is appraisable. Emphasizing on Dr. Eric Lander’s study who was an associate
professor at Harvard University, the author supporting the defense counsel’s arguments
in the case of The People Vs Castro6 has rightly criticized it by declaring the expert
reports as non exhaustive. Supporting the claims of author, I believe that out of the two
landmark tests i.e. the Fyre Test7 and Relevancy Test, the later has much significance
as it considers the value of forensic evidence as much as any other evidence in the court
of law.
With the help of the existing knowledge on the topic and available data I would attempt
to fill in the gap of the author here which would be focused on a comparative approach
by expanding the boundaries of the question to other legal systems.
6
144 Misc. 2d 956, 545 N.Y.S 2d 985 (Sup. Ct. 1989)
7
Frye Vs U.S., 293 F. 1013 (1923)
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3. Divya Singh, DNA Profiling: Insurmountable Proof or Exaggeration, 14 MED. & L.
445, 452 (1995): The title of this article certainly nails the matter of the article. As
correctly pointed out by her in the title and supporting the “exaggeration” issue with
DNA profiling technique she gives a remarkable introduction by comparing and
contrasting other researches and medical tests in USA. She does not seem assured of
the certainty and accuracy of the DNA tests while talking to various laboratory
technicians. The author pressing upon the wider use of this technique towards the end
of 20th century for the purpose of serving criminal justice seems lauded. At this juncture
it can be easily seen that the author places societal beliefs with regard to DNA profiling
being accepted by courts and lays down its usages in criminal and civil matters. I would
attempt to fill the gap where the author taking a casual view about the acceptance of
DNA samples as evidence, seemed confused as on one hand she claims that DNA
samples are accurate and should not be corroborated while on the other hand towards
the middle of the article she says “there is no surety of trustworthiness in DNA
experiments” and urges for controlled variables in introductory experiments.
4. Subhash Chandra Singh, DNA Profiling and the Forensic use of DNA Evidence in
Criminal Proceedings, Indian Law Institute, Vol. 53, No. 2, pp. 195-226 (2011):
Although the author has pointed out several aspects with respect to DNA profiling and
the forensic use of DNA evidence, he rejects the claim in his conclusion part that
challenging DNA reports is similar to challenging law of gravity. Doing a
comprehensive study on usage of DNA samples as evidence in America, England,
Australia, Canada and India through case studies is plausible as he mentions the
landmark judgments. The author never missed a chance to connect DNA testing with
Human Rights and Human Rights law which according to me is a neo-approach, to be
discussed in later part of my paper. Elucidating tests laid down in famous cases of
Castro8, Schwartz Vs State9, State Vs Walstad10, R Vs Garmson11, Madan Gopal
Kakkad Vs Naval Dubey12 etc, the author not leaving any stones unturned with respect
to the evidentiary value of DNA tests. In my view the relevancy aspect of DNA tests
8
People Vs Castro 545 NYS 2d 985 Sup. Ct. 1989
9
447 N.W. 2d 422 (1989).
10
119 Wis. 2d 483, 351 N.W. 2d 469 (1984)
11
(2009) EWCA Crim 2698.
12
(1992) 3 SCC 204 at 221-22.
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could be given a little extra place in Indian context as the author partially failed to
establish his claims made in the conclusion part.
Though the author lacked by putting less effort in supporting the article with
recommendations, this paper would make an effort to supply sufficient amount of
information based upon doctrinal research methodology which justifies the article
published in its community a decade ago.
5. Journal of Law and Society, Vol. 39, No. 1, Material Worlds: Intersections of Law,
Science, Technology, and Society (MARCH 2012), pp. 150-166: The author in this
article with the aid of science and technology into the studies of biological bodies has
placed reliance on the fact that DNA profiling has been giving access to private bodies
contrasting it with civil rights, legal principles and interference thereto. Highlighting
the developments of law and inclusion of DNA profiling as a method of investigation
in Netherlands the author correctly points out that till 1990s Forensic DNA technologies
has various drawbacks such as higher costs, analysis cycle duration etc. privacy of the
suspect being a constitutional right and bodily integrity such person according to the
author is at stake when DNA samples are genetically examined. Highlighting the
constitutional aspects, amendments and various laws developed throughout the 20th
century, the author focuses on 1994 Forensic DNA Typing Act and suggests that such
a technique could be expensive at times. But in my view the cost aspect is important to
the extent when the suspect does not turn into a convict eventually. But what the latest
data shows is that such conviction based solely on the basis of DNA evidence is very
less. The author has thus tried to point out such issues and has efficiently succeeded in
his task.
6. DNA Evidence May Have Been Misleading To Courts, BMJ: British Medical Journal,
Vol. 308, No. 6933 (Apr. 2, 1994), pp. 874-875: An article published in British Medical
Journal during 1994 suggesting DNA database to be made public in order to get peer
reviews so that there can be matching probabilities which in turn would help in getting
a correct result and justice. He points out that the different database even when agree
on the pattern of DNA bands may have a different calculation in the end. The author
has placed views of his own as well as of other doctors which implies the importance
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of corroboration of DNA evidences with other oral and documentary evidences. This
view of the author is correct in my view as corroboration is important as such evidences
might lead to infringement of various constitutional rights as well as in few cases other
statutory rights.
7. John W. Hicks, DNA Profiling: A Tool for Law Enforcement, 57 FBI L.
ENFORCEMENT BULL. 1, 5 (1988): The author of this article defining the DNA and
profiling methods places emphasis on the FBI’s role and the requirement of the
agency’s training programs for efficient DNA profiling results to be collected and
stored. This article primarily deals with the forensic aspects and technicalities where
issues with DNA sample arise, especially with semen. Laying down the pictorial and
statistical data, the author is concerned about the chances of DNA matches collected at
the scene of crime with that of the suspect. Variations in the size of the fragments of
DNA are another query what the author addresses herein. The author suggests various
methods to keep a track of DNA database and pressed upon help of local investigation
agencies to evaluate the process of investigation thoroughly. He also discusses issues
with regard to collection, storage, transfer and testing of DNA samples. Technical
personnel should be called by the government for routine use of this technique for an
effective law enforcement system.
8. Patrick J. Lincoln; Jim Thomson, DNA Profiling and Its Application to Problems of
Identification, 8 INT’L Y.B. L. COMPUTERS & TECH. 247, 258 (1994):The author
of this article out rightly denies the thought that DNA samples collected from crime
scene cannot be impure or insufficient. Conducting a test on the DNA samples collected
from bloodstains of the deceased the author is of the view that such fragments can relate
to different ethnic groups. The author compares and contrasts the two famous tests for
DNA matching i.e. VNTR (Variable Number of Tandem Reports) and PCR
(Polymerase Chain Reaction) technique where he supports the later as a newly
developed technique capable of resulting in thousand times afflux of DNA available for
testing. The author is correct as this PCR technique is helpful in avoiding various
statistical infirmities. This article primarily deals with the technical aspects and
technicalities where issues with DNA sample arise. Laying down the pictorial and
statistical data, the author is concerned about the chances of DNA matches collected at
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the scene of crime with that of the suspect. Variations in the size of the fragments of
DNA are another query what the author addresses herein. Agreeing to the author’s point
of view where he supports the PCR method of DNA profiling, I am of the opinion that
the degree of variations found in PCR method is a little more than that of single locus
tests which the author talks about in the mid of his article. Though this article is
technical in nature and requires expertise to understand, the very purpose of studying
this article is to compare and contrast the various techniques of DNA profiling and to
come to a conclusion as to which technique should be best fitted in a particular nature
of crime. Also the author has successfully introduced the various sorts of samples which
are required to be collected for the purpose of DNA profiling.
9. Michael Baird, Peter J. Neufeld and Barry C. Scheck, DNA Testing: Is forensic DNA
testing reliable? ABA (American Bar Association) Journal, Vol. 76, No. 9
(SEPTEMBER 1990), pp. 34-35: The author of this article published in American Bar
Association Journal in 1990 when the DNA profiling , or for that matter the forensic
evidences were in very tender age, the author very boldly takes the stand in support of
DNA evidences and the associated identification technology at the Bar. According to
his knowledge out of hundred only four DNA trials were not admitted which ascertains
his points of accuracy of DNA profiling methods. Highlighting the four key differences
in diagnostic and forensic tools the author lays down two essential facets of a DNA test.
First being the declaration of the match and secondly being the calculation of the
statistical probability of that match. The conclusion of the author in this article is very
much justified and shows his efforts towards development of this field where he says
that before one accepts the DNA tests as a general or reliable technique the consent of
the scientific community must be taken into consideration in order to calculate the
probabilities.
10. DNA TESTS IN CRIMINAL INVESTIGATION & HUMAN GENOME PROJECT,
Manupatra, Universal law Publishing Co.: “DNA test is a sophisticated method to
scrutinize human presence or identity or relations”. Giving a brief of DNA testing
history with an introduction of Alec Jaffrey, the author moves on to DNA database and
the first DNA evidence admissible in India at CCMB (Andhra Pradesh) Hyderabad
which was concerned with a paternity dispute. The author has correctly pointed out
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courts’ powers and certain restrictions laid down by Hon’ble Supreme Court in the case
of Dharam Dev Yadav vs. State of Uttar Pradesh, 2005 DNR HC 675. DNA tests can
only be obtained in the cases deserving it. It cannot be used as a matter of routine. The
Supreme Court has held in another landmark judgment that although there may be
accuracy in the DNA evidence obtained scientifically, it should not be merely accepted
on the basis of public policy in matters relating to paternity dispute. The author
analyzing this statement has very smartly pointed out that the Supreme Court through
such judgment has encouraged the lawmakers to stick to the conventional, biased as
well as ineffective system of justice delivery.
Covering from national to international aspects (with respect to Human Genome project
of US) the author concludes by giving the remark, particularly a question as to privacy
of one’s information after giving DNA information in front of his family members and
friends and its impact.
INDIAN POSITION OF DNA PROFILING
DNA Legislation in Indian Context
In India, there is no specific law on the topic of DNA evidence as of now but the DNA testing
has itself got validity in th eyes of law since 1989 . In India, Kunhiraman v. Manoj,13 was the
first paternity dispute which required the DNA evidence to be presented in the courts. The court
took the DNA evidence as the opinion of experts such as forensic experts, ballistic experts,
biological experts, chemistry experts, etc.14. The Indian government and the Law Commission
have also been awakened, and the Indian Parliamentary Affairs Committee has established an
advisory committee to provide comprehensive reports on all aspects of DNA testing. In its
185th report, the Law Commission also recommended amending its Article 112 to include
DNA testing in the Indian Evidence Act. The Indian Parliament passed the Criminal Procedure
Act (Amendment) Act 2005, which was approved by the President of India on June 23, 2005,
and became Act No. 25 of 2005. The Indian government seems to be rapidly considering DNA
analysis and its authenticity and reliability. Explanations have been added to Section 53 (2). It
13
II (1991) DMC 499
14
Mohd. Hasan Zaidi & Yashpal Singh, DNA Tests in Criminal Investigation, Trial and Paternity Disputes, p.
36.
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was at the request of the police officer in connection with a doctor's examination of the accused.
The defendant's blood, semen, saliva, etc. can be examined by a doctor/medical practitioner.
Right to Privacy
In the Indian context, it must be noted that India is a signatory to the International Covenant on
Civil and Political Rights of 1966, and the right to privacy stems from Article 21 of the
Constitution and the guiding principles of national policy and it was held in People’s Union
for Civil Liberties v. Union of India,15 that right to privacy enshrined in Article 21 cannot be
curtailed except according to procedure established by law.
In Kharak Singh v. State of Uttar Pradesh16, the majority judgment observed thus: “The right
of privacy is not a guaranteed right under our Constitution and, therefore, the attempt to
ascertain the movements of an individual which is merely a manner in which privacy is invaded
is not an infringement of fundamental right guaranteed under Part III.”
DNA Evidence and the Privilege against Self- Incrimination
The discovery of genetic fingerprints with highly specific and extraordinary probative
properties highlights the issue of the scope of privileges that prohibit self-incrimination. The
public may think that the manufacture of DNA fingerprints is much more objective than verbal
statements. In the case of Goutam Kundu v. State of W.B17, there was a question of disputed
paternity. The court ruled that no one could be forced to provide a blood sample for analysis
against his / her wishes, and could not object to it.
The constitutionality in taking a fingerprint was challenged in the case of State of Bombay v.
Kathi Kalu Oghad.18 The Supreme Court ruled that Article 20 (3) of the Constitution provided
for the protection of a person from testifying against him. However, “as a witness” is not
equivalent to “providing evidence” in its broadest sense. The term “as a witness” does not
include showing a part of the body with thumb or finger prints or through identification. The
witness was interpreted as imparting some knowledge in the testimony. It is appearing from
15
A.I.R. 1997 SC 568 (575): MANU/SC/0149/1997: (1997) 1 SCC 301; Article 12 of Universal Declaration of
Human Right, 1948.
16
A.I.R. 1963 S.C. 1295: 1963 (2) Cr. L.J. 329
17
1993) 3 S.C.C. 418.
18
A.I.R. 1961 S.C. 1808.
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this is that there would be no constitutional restrictions upon the collection of DNA samples
for medical tests or DNA analysis.19
It wasn't until 2005 that Hon'ble India's Supreme Court and High Court of India acknowledged
DNA evidence in matrimonial disputes and parent-child disputes. However, after 2005, Indian
courts began to consider DNA evidence, not expert opinions, but as relevant facts of Article 4
of the Indian Evidence Law, from which it can be concluded that the conclusiveness and
accuracy of DNA testing are Indian courts This has never been doubted. On the contrary, the
lack of corresponding legislation, and the existence of contradictory legislation or strict
prohibition in the law are the reasons why he is unwilling to accept this form of evidence. The
admissibility of DNA evidence in criminal cases is only one of the circumstances that are
gradually being fully accepted in the legal profession. The current DNA Bill, which is being
considered by the Indian Parliament, includes provisions for the establishment of a DNA
database, which consists of DNA profiles of certain classified populations, but remains silent
on how the database is set up (especially on scientific standards for humans).
In India, DNA testing does not include the interpretation of allele frequencies when interpreting
results. This is another major disadvantage of the Indian DNA typing scheme. This is because
no studies have been performed to determine the genetic loci of the Indian population, which
will improve the efficiency of distinguishing between two DNA samples. To this end, the
legislative policy must stipulate that a population consensus to find the frequency of genes in
the Indian population must be enforced and made available in the public domain. The 2016
DNA Bill is likely to take this into account and, similar to the way Aadhaar details are collected,
authorized professionals can select a sample population in each state, and the frequency of
heterozygous alleles typical of the Indian population can be determined. This, in turn, can be
used to create a forensic DNA database of the Indian population. Every country can make rules
for this, so national institutions can select qualified professionals.20
19
Id.
20
Justice K.S.Puttuswamy and Anr. Vs. Union of India and Others W.P. Civil No. 494 of 2012
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DNA Evidence in Indian Courtrooms
In countries like India, trained judges, not juries, try to determine facts from the evidence before
them, so it is important for judges to fully understand the validity and reliability of technical
evidence, such as DNA fingerprints. They must also know the technique used, the meaning of
the results, the sampling errors that can be set, and what are the uncorrectable errors. Therefore,
based on these errors, what is the deviation rate from the correct results provided by the correct
results as evidence. Although DNA evidence is currently accepted in Indian courts, it is not as
widespread or accepted as in other countries. In practice, courts do not seek DNA evidence.
The provisions of the relevant regulations have then been modified to include the technology
to improve judicial effectiveness. 21
However, there are many reasons that prevent the free use of this technology, as follows:
I. Insufficient knowledge of this technology among law enforcement officials
II. No fully equipped laboratory for DNA sample testing
III. Few experts proportional to case backlog, they can perform DNA typing and get results
IV. There is no standardized protocol for DNA typing (except for some laboratories
throughout India), so laboratories performing DNA typing use different methods to
arrive at results.
In this context, it is interesting to note that The Hon’ble Supreme Court of India in the case of
Narendra G.Goel Vs. State of Maharashtra and Another22 had accepted that the prosecution
can rely on Mitochondrial DNA test to identify a murdered woman and to ascertain the
culpability of the accused and this would not affect the rights of the accused in any manner. To
this end, it considers that a full report of the materials collected during the investigation in
India, including the mitochondrial DNA test report conducted by the Office of the Chief
Coroner of Ontario, is acceptable upon review. Whether to provide evidence will be decided
by the Indian courts. The evidence value of the evidence presented by the prosecution can be
tested during the trial, and the defendant has no right to make a statement at the pre-trial stage
of the investigation:
21
Id.
22
(2009) 6 SCC
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i. In addition to law enforcement personnel, there must be a special forensic team of well-
trained and knowledgeable genetic professionals who must take on the task of
collecting DNA samples, storing them and transporting them to a laboratory for testing.
ii. Minor DNA was found at the crime scene. It is DNA from other sources and is difficult
to separate from the primary DNA left by victims and suspects at the crime scene. In
this case, only DNA forensic analysts can distinguish and understand DNA evidence.
Then, foreign law enforcement officials claimed that, based on their experience at the
crime scene, DNA was the best indirect evidence, and only one relevant fact could be
retained, supported by expert testimony. Therefore, if an expert knows which DNA
should match what probe or what other DNA sequence, then it is difficult to determine
whether the evidence interpreted by the expert is original evidence or fabricated.
Therefore, there should be a team from law enforcement that has sufficient knowledge
of the evidence in other circumstances and can assist the judge in determining how
much weight to give to DNA evidence or expert testimony based on DNA evidence.23
iii. Just like in the United States, there must be some guidelines for determining the weight
of DNA evidence in various cases based on the nature of the case. The Sixteenth Law
Commission (Maliamath Commission),24 in its 185th report submitted in 2003, in its
2003 report to the Law Commission recommended the following reforms to the
criminal law to make better use of technology to combat crime:
a. Forensic science and modern technology must be used in the investigation from the
beginning. A crime scene officer (SOCO) should be established to preserve the
crime scene and collect physical evidence from it.
b. The CFSL and FSL networks in the country need to be strengthened to provide
investigators with the best forensic cover. Small FSL and mobile forensics units
should be set at the regional / scope level. The Fingerprint Identification Bureau
and the FSL should be equipped with trained human resources, and sufficient
numbers and sufficient financial resources.
c. Forensic legal services should be strengthened at the regional and state / central
levels, and adequate training facilities for forensic specialists should be provided at
23
Id.
24
Dr. VS Mallimath Report Vol 1, India , March 2003
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the state / central level. State governments must set a timetable for filing medical
legal reports.
d. A mechanism for coordination between investigators, forensic experts and
prosecutors at the state and district levels should be established for effective
investigations and prosecutions.
ADMISSIBILITY OF DNA EVIDENCE IN CRIMINAL CASES: A COMPARATIVE
ANALYSIS
United States of America
In the United States, all scientific evidence in criminal trials, including evidence from DNA
identification analysis, must meet valid admissibility tests in specific jurisdictions. Generally,
the court uses one of two tests. The so-called Fyre test, which was pronounced by the US
Circuit Court for the District of Columbia in Fyre v. United States,25 or one of its variations,
is used in a majority of jurisdictions. Under the Fyre test, a novel scientific technique must
have gained general acceptance in the relevant scientific community before it is admitted by
the court.
The second rule follows the basic relevancy standard of the federal rules of evidence26 and is
used in a majority of state jurisdictions. To be admissible under federal regulations, scientific
evidence must be relevant to the problem in the case, and its proof value must outweigh the
possibility of bias. In Daubert v. Merrell Dow Pharmaceuticals,27 the US Supreme Court ruled
that the federal rules of evidence have replaced the Fyre test in federal court trials.
Additionally, the court defined a new federal standard. 28
While the Daubert test applies to federal courts, most state continues to follow the Fyre test.
Generally, state and federal courts are increasingly accepting DNA evidence. Generally, courts
using Daubert's standard are more likely to accept DNA evidence, although many jurisdictions
25
293 F. 1013, 1014 (D.C. Cir. 1923)
26
Rules 401, 402, 403 and 702
27
509 US 579, 113 S.Ct. 2786 (1993)
28
Journal of the Indian Law Institute, Vol. 53, No. 2 (APRIL-JUNE 2011), pg no. 203
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that rely on Fyre allow it. Almost all cases where DNA evidence is deemed unacceptable are
in jurisdictions that use Fyre. In People v. Castro,29 the New York Supreme Court in a 12 week
pretrial hearing exhaustively examined numerous issues relating to the admissibility DNA
evidence. Castro is accused of murdering his neighbor and her 2-year-old daughter. An analysis
was made as to whether the blood on the Castro watch matched the victim. The court ruled:
• DNA identification theory and practice are generally accepted by the scientific
community.
• DNA forensic technology has been widely accepted by the scientific community.
• A pre-trial hearing is needed to determine if the testing laboratory's methods are
basically in line with scientific standards and produce reliable results for jury
consideration.
Castro's30 ruling supports the argument that exclusionary DNA identification evidence is more
likely to be accepted than exclusionary DNA identification evidence. In Castro, the court ruled
that a DNA test could be used to prove that the blood on a Castro watch was not, but the test
could not be used to prove that the blood was the blood of his victim. In Castro, the court also
recommended broader discovery requirements for future procedures, including copies of all
laboratory results and reports, interpretation of statistical probability calculations, and any
observed defects or laboratory errors (including observations of pollutants) and the
requirements for recordkeeping. These recommendations soon were expanded upon by the
Minnesota Supreme Court in Schwartz v. State,31 which noted, “Ideally, the defendant should
be provided with an actual DNA sample in order to replicate the results. In practice, this is not
possible because forensic samples are often so small that the entire sample is used for testing.
Therefore, access to data, methods and Actual results are critical for independent expert
reviews. “ In 1996, the National Institute of Justice published a book entitled “Conviction by
Jury and Scientific Innocence”, which cited DNA technology not only for conviction, but also
to forgive people accused of wrongdoing in a criminal case.32
29
38Cal. 3d 301
30
(1985)- 211 Cal. 3d 301
31
447 N.W. 2d 422 (1989).
32
E. Conners, et al., Convicted by Juries, Exonerated by Science : Case Studies in the Use of DNA Evidence to
Establish Innocence After Trial, U.S. Department of Justice, National Institute of Justice , Washington, D.C.,
June, 1996).
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United Kingdom
England is recognized as the most effective way to use DNA technology in the world. DNA
technology and DNA data have been at the heart of the criminal investigation process. Since
the establishment of the National DNA Database (NDNAD) in 1995, England has become a
world leader in discovering innovative ways to use DNA to identify suspects, protect innocents
and convict. Colin Pitchfork was the first person to be convicted of murder using DNA. Lynda
Mann and Dawn Ashworth were sexually assaulted and killed in 1983 and 1986, respectively.
Semen samples were taken from two victims. The main suspect is a seventeen-year-old kitchen
porter who has admitted to killing Dawn Ashworth. Alec Jeffrey was called and revealed that
the semen from the two bodies came from the same person, but the man was not a confessed
kitchen porter. Leicestershire police then decided to conduct the world's first large-scale DNA
screening. No information matches the information of the killer. A year later, a woman told
police that she had overheard Ian Kelly's bragging, saying that he had provided samples while
pretending to be his friend. Local baker Colin Pitchfork convinced Kelly to take the exam for
him. The pitchfork was arrested, and his DNA files matched the semen from both murders.
Although his case has not actually been tried due to his confession, he is often considered the
first DNA murderer. Collin was sentenced to life imprisonment for two murders in 1988.33
In combined appeals of R. v. Reed and Reed and R. v. Garmson34 Court of Appeal considered
the use of LCN DNA analysis evidentiary tool which was challenged in these appeals. In both
cases, the appellant appealed the conviction. The Reed brothers were found guilty of murder,
and scientists performed LCN tests on two pieces of plastic at the murder site. Similarly, LCN
tests were used on four DNA items in Garmson's abduction and sexual assault trials. In
dismissing the appeal, Justice Thomas believed that LCN DNA could be used to obtain
information that can be reliably interpreted if the amount of template DNA exceeds the
minimum random threshold of 100 to 200 picograms. In the 100 to 200 picogram range,
evidence may be needed to prove whether a reliable explanation can be made in a particular
situation.
33
(2009) EWCA Crim. 963
34
(2009) EWCA Crim 2698.
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The Law Commission recently reviewed the admissibility of expert evidence in criminal
proceedings in England and Wales.35 There is no doubt that the Law Commission is in favor
of reforming the law on the admissibility of expert evidence. The committee aims to provide
certain clarity and certainty in the laws and legal procedures concerning the admissibility of
expert evidence. It argues that many scientists, practitioners and jurists have come to the same
conclusion, calling for a new basis for screening expert evidence to ensure that juries and judges
consider only sufficiently reliable evidence. The basic premise of the Legal Committee is that
expert evidence must meet acceptable minimum evidence reliability standards. Its
recommendations include the use of a new statutory test to determine admissibility,
supplemented by guidelines related to scientific and experience-based expert evidence. The
test will require the judge to play the role of goalkeeper. He or she must be satisfied that the
evidence is sufficiently reliable to be accepted, i.e. the evidence is based on reasonable
principles, techniques, methods and assumptions that the evidence has been properly applied
in the case and the conclusions reached are logically sustainable.
A recognized rule in English law is that any relevant evidence is acceptable, even for illegally
obtained purposes, to prevent serious crime. This approach reflects the decision of the House
of Lords in the Attorney General's Reference No. 3 of 1999, in which Lord Stein stated:
“It must be kept in mind that respect for the defendant's privacy is not the only risk. The
purpose of criminal law is to allow everyone to live without fear of harm to people or property.
Serious investigation and prosecution of serious crimes is in everyone's interest. All parties
must be fair .In criminal cases, this requires the court to consider a triangle of interests. It
involves considering the position of the defendant, the victim and his family or the public.”
India
Many cases have been resolved through DNA analysis, mainly parent-child disputes. Of these
resolved cases, the most common is DNA analysis performed at CCMB in Hyderabad (CC),
India. The first parent-child dispute related to DNA analysis was also conducted by CCMB
(A.P.), sweeping the entire Indian judicial system, in Telicherry (Thalassery) in C.J.M. Kerala.
35
Law Commission Consultation Paper No. 190: The Admissibility of Expert Evidence in Criminal Proceedings
in England and Wales: A New Approach to the Determination of Evidentiary Reliability (2009).
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The case summary was that a country girl Vilasini filed a lawsuit against her lover Kunhiraman,
demanding that she maintain her grandson Manoj. She claims that her son was born as a result
of an illegal relationship between them. The husband gave up her property and he refused to
accept her son's fatherhood. C.J.M. ordered the two of them to perform a DNA test with their
son in CCMB, Hyderabad, India. Forensic scientist Dr. Lalji Singh and his colleagues
conducted a DNA test and the analysis proved that the person in question was not born of
Kunhiraman. In this case, FSL used the BKm 2 (8) probe and received DNA evidence (Vilasini
case)36. C.J.M. said that according to Article 45 of the Indian Evidence Act, 1872, expert
opinion is acceptable and DNA evidence is also scientific inspection, and expert opinion on
cell and molecular biology is acceptable, just like the opinions of chemical analysts or experts
on fingerprints. The Kerala High Court also upheld the verdict, stating that the DNA test itself
may determine fatherhood/paternity.37
The Constitution of India, Indian Evidence Act and Cr.P.C.
Articles 51A (h) and (j) of the Constitution of India stipulate that “the spirit of development of
science, humanism and the spirit of inquiry and reform” and “strive to achieve outstanding
achievements in all areas of individual and collective activities, so that the country continues
to Improve your level of effort and achievement. “Although India does not have specific DNA
legislation, sections 53 and 54 of the Criminal Procedure Act (Cr.PC) of 1973 regulate implicit
DNA testing and are widely used in Identify complex criminal cases. Article 53 involves the
examination of a doctor's allegations at the doctor's request, and there are reasonable grounds
for believing that the examination of the doctor will provide evidence of the crime. Article 54
of the People's Bank of China also stipulates that at the request of the arrested doctor, the
arrested person shall be examined by a registered doctor.
According to the 2005 amendment, among others, amendments have been made to add a new
section 53A, which provides for the examination of persons raped by doctors. With this
amendment, new interpretations include modern examinations of blood, blood stains, semen,
sputum, swabs, sweat, hair samples and nails within the scope of their sexual acts to address
sexual crimes involving sexual crimes, including DNA profiling and other such checks as
36
M.C. No. 17 of 1988
37
Dr. M.W. Pandit and Dr. Lalji Singh, DNA Testing, Evidence Act and Expert Witness, Indian Police Journal.
Oct.-Dec. 2000, p. 99.
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required in specific situations. Although section 53A only refers to the examination of a doctor
at the request of a police officer, the court has the power to uphold justice in criminal cases by
instructing police officers to take blood samples from the accused. DNA tests were performed
in accordance with sections 173 (8) and 293 (4) (e) of Cr.PC for further investigation.38
In addition to these provisions, section 45 of the Indian Evidence Act 1872 is more important
in terms of the admissibility of DNA evidence. Section 45 deals with expert opinion.39 It states:
“When the court must make an opinion on a foreign law, science or art or the identity of a
handwriting (or fingerprint), at this point the opinion of a person who is particularly skilled in
this foreign law, science or art (or related Questions about handwriting or finger impressions)
are relevant facts. “Article 293 of Cr.PC deals with reports from certain government scientific
experts. Article 293 (2) provides that the court may call and review any such expert on the
subject matter of its report if it considers it appropriate.
In many cases, the court found that medical evidence was merely evidence of opinion and had
little decisive significance. This is not substantial evidence. But they said that the opinions of
the doctors and forensic laboratories that performed the autopsy were reliable. It further states
that unless the medical report is inherently flawed, the court cannot replace the opinion of the
doctor with its own opinion.
Some convictions have occurred in India, and scientific evidence (DNA) has been accepted
under section 45 of the Indian Evidence Act. DNA testing has become an established part of
the criminal justice process, and acceptance of test results in court has become routine. India
has adopted a judicial administrative adversarial system, and medical evidence is generally
acceptable only if oral evidence is sworn in court after expert oath, except in exceptional
circumstances.
38
Ibid.
39
Ibid.
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CONCLUSION
“No man, not even the accused himself can be compelled to answer any question, which may
tend to prove him guilty of a crime, he has been accused of”.
DNA profiling has many advantages over traditional forms of evidence. In criminal and civil
cases, DNA profiling is very useful for proving identity or family ties. Although it cannot
replace indirect evidence in criminal cases, it can be supplemented because it can strongly
target suspects who might commit crimes. In civil cases, this is the best method and decisive
evidence to determine the identity of a person and to prove or oppose the child's mother and
child status. This application of DNA technology requires that its performance follow best
standard practices in order to provide us with accurate and reliable results. Seeking a DNA test
is the only way for a court to allow the test to be performed and to obtain any relief in the types
of cases mentioned above. Indian courts can accept DNA evidence if it supplements or supports
other evidence in criminal cases. However, in marriage cases and in parent-child or mother-
child disputes, the court does not make this a routine matter, but only in the circumstances it
should.
There is a custom among police officers to give suspects alcohol and marijuana before
interrogation. It is thought that marijuana and alcohol will eliminate the inhibitory effects that
cause “tongue loosening” and “truth to emerge.” Due to the effects of these drugs, subjects are
likely to develop hallucinations and delusions. The apocalypse may be fictional and mislead
investigators. DNA analysis is another complex form of torture, in which the defendant is
(actually) removed from the defendant without the defendant's cooperation before the trial.
This method is a serious violation of human rights.
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