The New Scientific Eyewitness
The role of DNA profiling in shaping criminal justice
Jenny Wise
A thesis submitted to the University of New South Wales in fulfilment of the requirements for the degree of Doctorate of Philosophy in Criminology
2008
1 Certificate of Originality
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ii ABSTRACT
Since its first use in criminal investigations in 1987, DNA profiling has become the new gold standard for investigations and prosecutions. Academics, politicians and law enforcement officials have presented DNA evidence as a “scientific hero” that is capable of solving crimes and preventing miscarriages of justice. However, in spite of this reputation, few studies have explored the impact of this technology on criminal justice practitioners, or on the process of investigating and processing criminal offences.
This dissertation provides a comparative study of the use of DNA profiling in two jurisdictions: New South Wales (NSW) in Australia and the Thames Valley in the United Kingdom (UK). Interviews canvassed the perspectives and experiences of police officers, scene of crime officers (SOCOs), forensic scientists, criminal lawyers, and judicial officers from these areas. These interviews were analysed in conjunction with appeal judgments and police statistics to reveal how DNA evidence has been used in the NSW and Thames Valley.
The research presented in this dissertation indicates that DNA profiling is having a number of far-reaching effects on both criminal justice systems and is seen as a reliable forensic tool by criminal justice practitioners. Practitioners routinely use DNA evidence throughout the various stages of the criminal justice process and are actively changing their practices to utilise the technology more effectively. One of the main impacts of the introduction of DNA evidence into criminal investigations has been the need to provide substantial resources and infrastructure for the collection, analysis, and storage of samples. Both jurisdictions encountered a number of problems because they provided insufficient resources to effectively use DNA profiling. This study also offers insight into how criminal justice practitioners perceive the dangers of using DNA evidence and how miscarriages of justice can occur. Finally, through an analysis of the combined experiences of criminal justice practitioners, this dissertation challenges the widespread acceptance and routine use of forensic DNA profiling. It further suggests that it is now time to re-consider current practices in relation to how resources are devoted to the technology, and how criminal justice practitioners are using the technology.
iii ACKNOWLEDGMENTS
I would like to thank my two supervisors, Professor Janet Chan and Associate Professor Gary Edmond for their continual guidance and support throughout this dissertation. Thank you for reading through my many drafts, providing constructive feedback and believing in the project.
This dissertation would not have been possible without the support provided by various organisations within the criminal justice system. Many thanks to the police officers, scientists, scene of crime officers, judicial officers and criminal lawyers who participated in this study. In particular, I would like to thank both the Thames Valley and NSW Police for their efforts to ensure that my research was completed and that I was provided with all of the relevant information. Without your time and support I could not have completed.
Finally, I would like to thank my family and friends who have supported me through this process. In particular, I would like to thank Michael Briody who provided me with numerous articles on the topic and believed in my project from the beginning. Many thanks to Dominick Fitzimmons, Elaine Fishwick and Jane Bolitho who were able to provide feedback on my thesis. To my parents who always asked where I was up to with my thesis and provided continual support. In addition, I would like to thank my grandfather for his constant vigilance of the newspapers on my behalf. Most importantly, I wish to thank my husband Nathan Wise for his unending support and love in all aspects of my life.
iv TABLE OF CONTENTS
CHAPTER ONE: INTRODUCTION ...... 1
THE NEED FOR RESEARCH...... 5 AIMS OF THE DISSERTATION ...... 9 THESIS OVERVIEW ...... 11
CHAPTER TWO: A HISTORY OF FORENSIC IDENTIFICATION TECHNIQUES...... 14
FORENSIC IDENTITY...... 14 Bertillonage ...... 15 Fingerprint identification ...... 16 The emergence of DNA profiling...... 19 DNA EVIDENCE AS A GOLDEN STANDARD...... 20 CHALLENGING THE GOLD STANDARD...... 23 The DNA Wars...... 25 Initial responses to the DNA Wars ...... 28 Closing the DNA Wars...... 29 Ongoing controversies...... 32 DNA EVIDENCE: A STANDARD FORENSIC TECHNIQUE ...... 40
CHAPTER THREE: UNDERSTANDING THE TRAJECTORY OF DNA TECHNOLOGY ...... 42
FACTORS AFFECTING TECHNOLOGICAL CHANGE ...... 43 Global trends ...... 43 Economic factors ...... 47 Technical design and implementation ...... 49 Political issues ...... 52 Cultural frames...... 55 THE FLUIDITY OF TECHNOLOGICAL CHANGE ...... 59 THE LEGITIMATING POWER OF TECHNOLOGY ...... 61
CHAPTER FOUR: METHODOLOGY...... 63
RESEARCH DESIGN ...... 63 Comparing New South Wales to the Thames Valley...... 66 Interviews...... 69 Judgments, documents and statistical analysis...... 72 THE RESEARCH PROCESS ...... 76 Making contact ...... 76 Gaining entry: Problems with police...... 78 Building rapport ...... 79 v METHODOLOGICAL ISSUES ...... 80 Representativeness...... 81 Generalisability and external validity ...... 81 Internal validity...... 82 Reliability...... 83 Interpretations ...... 84 ETHICAL ISSUES...... 84 APPROACHING THE ISSUES ...... 85
CHAPTER FIVE: THE LEGAL CONTEXT FOR DNA EVIDENCE ...... 86
THAMES VALLEY ...... 86 The National DNA Database (NDNAD)...... 88 Police Elimination DNA Database...... 97 Admissibility of DNA evidence ...... 98 NEW SOUTH WALES...... 100 Collection of samples...... 102 DNA Review Panel...... 112 Admissibility of DNA evidence ...... 118 REINSTATING FAITH IN FORENSIC SCIENCES ...... 120
CHAPTER SIX: THE PROLIFERATION OF DNA PROFILING ...... 123
NEW SOUTH WALES...... 123 Indicators and reasons for the widespread use of DNA profiling ...... 125 THAMES VALLEY ...... 136 Indicators and reasons for the widespread use of DNA profiling ...... 139 EMERGING FROM THE ‘DARK AGES’ ...... 144
CHAPTER SEVEN: DNA EVIDENCE ACROSS OFFENCE TYPES...... 147
BACKGROUND ...... 147 NEW SOUTH WALES...... 151 The comparison of offence types using the database...... 151 Homicide, sexual assault, and property crimes...... 155 General differences between offence types and DNA evidence...... 158 THAMES VALLEY ...... 161 The number of samples collected, analysed and submitted...... 161 Types of samples collected...... 166 Different offence types and DNA evidence ...... 168 RETHINKING THE LIMITED RESOURCES PROVIDED FOR VOLUME CRIME ...... 172
CHAPTER EIGHT: THE EFFECTS OF DNA PROFILING ON CRIMINAL JUSTICE PRACTITIONERS...... 175 vi BACKGROUND ...... 175 KNOWLEDGE AND UNDERSTANDING OF DNA EVIDENCE ...... 178 NEW SOUTH WALES...... 183 Forensic biologists...... 183 Police ...... 186 Scene of crime officers (SOCOs) ...... 188 Prosecutors ...... 190 Defence lawyers...... 192 Judicial officers...... 195 THAMES VALLEY ...... 197 Forensic biologists...... 197 Police ...... 199 Scene of crime officers (SOCOs) ...... 202 CHANGING PRACTICES WITHIN THE CRIMINAL JUSTICE SYSTEM...... 205
CHAPTER NINE: WIDER IMPACTS OF DNA EVIDENCE ...... 208
IMPACT ON CRIMINAL JUSTICE SYSTEM RESOURCES AND PROCEDURES ...... 208 New South Wales ...... 208 Thames Valley...... 213 IMPACT ON INVESTIGATIONS ...... 217 Mass screens...... 217 DNA request surveillance ...... 219 UNINTENDED CONSEQUENCES OF FORENSIC DNA PROFILING...... 222 False implications...... 223 Erosion of civil rights ...... 227 Privacy concerns...... 235 Misusing DNA evidence...... 237 CONTINUING PROBLEMS...... 239
CHAPTER TEN: UNDERSTANDING THE DEVELOPMENT AND IMPACT OF DNA PROFILING ON CRIMINAL JUSTICE ...... 242
TECHNOLOGICAL PROLIFERATION...... 242 Marketing DNA profiling...... 243 Technological transfer...... 244 Resources...... 246 Knowledge and awareness...... 247 IMPACT ON THE CRIMINAL JUSTICE SYSTEM ...... 248 Expectation to have DNA evidence...... 249 Impacts on practitioners ...... 250 Displacement of evidence types ...... 253 vii Professionalising and commericialising DNA profiling...... 254 OFFENCE TYPES...... 257 LEGAL AND HISTORIC CONTEXTS ...... 258 UNINTENDED CONSEQUENCES...... 261 THEORETICAL IMPLICATIONS ...... 263 THE CONSEQUENCES OF USING FORENSIC DNA PROFILING...... 265
CHAPTER ELEVEN: CONCLUSION...... 267
REFERENCES ...... 276
APPENDIX ONE: KEY DATES IN THE HISTORY OF DNA PROFILING ...... 303
APPENDIX TWO: THE SCIENCE OF DNA PROFILING ...... 307
WHAT IS DNA?...... 307 TECHNOLOGIES OF DNA PROFILING ...... 310
APPENDIX THREE – INTERVIEW SCHEDULES ...... 317
SCIENTISTS ...... 317 POLICE...... 318 SCENE OF CRIME OFFICER (SOCO)...... 320 PROSECUTORS ...... 322 DEFENCE LAWYERS ...... 323 JUDICIAL OFFICERS ...... 324
viii LIST OF TABLES
TABLE ONE: COMPARING NSW AND THAMES VALLEY JURISDICTIONS ...... 67 TABLE TWO: NSW PARTICIPANTS ...... 70 TABLE THREE: THAMES VALLEY PARTICIPANTS ...... 71 TABLE FOUR: INDEX OF PROFILE TO BE MATCHED: IS MATCHING PERMITTED? ...... 103 TABLE FIVE: NSW POLICE DNA STATISTICS...... 124
TABLE SIX: TOTAL NUMBER OF FORENSIC PROCEDURES CONDUCTED IN NSW BETWEEN 1ST JANUARY 2001
AND 31ST DECEMBER 2004...... 128 TABLE SEVEN: THAMES VALLEY POLICE DNA STATISTICS ...... 138 TABLE EIGHT: THE THAMES VALLEY POLICE USE OF DNA IN COMPARISON TO OTHER EVIDENCE ...... 141 TABLE NINE: NSW DNA DATABASE HITS ON OFFENCES COMPARED TO RECORDED CRIME: NSW 2005...152 TABLE TEN: RESULTS OF ‘COLD LINKS’ BY OFFENCE TYPE 2002-2004...... 153 TABLE ELEVEN: THE THAMES VALLEY POLICE USE OF CRIME SCENE SAMPLES ...... 162 TABLE TWELVE: THE THAMES VALLEY POLICE USE OF CRIMINAL JUSTICE (CJ*) DNA SAMPLES ...... 163
TABLE THIRTEEN: THAMES VALLEY RECORDED CRIME (JANUARY – MARCH 2006) COMPARED TO THE
PERCENTAGE OF DNA EVIDENCE COLLECTED FROM CRIME SCENES AND SUSPECTS (APRIL – JUNE 2006) ...... 165
TABLE FOURTEEN: CRIMES AND SOURCE MATERIAL OF DNA CRIME SCENE PROFILES THAT WERE LOADED
ONTO THE NDNAD - SECOND QUARTER 2006...... 167 TABLE FIFTEEN: THAMES VALLEY FORENSIC DNA SUBMISSION SCREENING PROCEDURE ...... 205 TABLE SIXTEEN: THE ADVANTAGES AND DISADVANTAGES OF DNA PROFILING TECHNOLOGIES ...... 315
ix LIST OF FIGURES
FIGURE ONE: AUSTRALIA - NSW...... 68 FIGURE TWO: UNITED KINGDOM – THAMES VALLEY...... 68 FIGURE THREE: COMPARISON OF AUSTRALIA AND THE UNITED KINGDOM...... 69
FIGURE FOUR: COLD LINKS FOR OFFENCE OF BREAK ENTER AND STEAL BETWEEN JANUARY 2002 AND
DECEMBER 2004...... 154 FIGURE FIVE: BURGLARY DWELLING DNA MONITOR 2005-2006 ...... 171 FIGURE SIX: BURGLARY ‘OTHER’ DNA MONITOR 2005-2006...... 171
x LIST OF CASES
Australian
R v Tran (1990) 50 A Crim R 233 R v Lucas (1992) 55 A Crim R 361 R v Pantoja (1996) 88 A Crim R 554 R v Milat (1996) 87 A Crim R 446 R v Lisoff (1999) NSWCCA 364 R v Karger [2001] SASC 64 R v Gallagher [2001] NSWSC 462 R v McIntyre [2001] NSWSC 311 R v Button (2001) QCA 133 354 R v Karger [2002] SASC 294 R v Sing [2002] NSWCCA 20 R v Keir [2002] NSWCCA 30 R v Carroll (2002) 213 CLR 635 R v Wakefield [2004] NSWCCA 288 R v Henry [2004] NSWCCA 306 R v Kane [2004] NSWCCA 78 Regina v Hore v Fyffe [2005] NSWCCA 3 R v Stewart [2005] NSWCCA 290 Walker v Budgen [2005] NSWSC 898 R v White [2005] NSWSC 60 Police v Prilja [2006] NSWLC 19 Sharwood v Regina [2006] NSWCCA 157 R v Dionnet [2007] NSWDC 94 Regina v Holden [2007] NSWDC 55 R v Keir [2007] NSWCCA 149 R v McNeill [2007] NFSC 2 Bropho v The State of Western Australia [2007] WADC 77
xi
United Kingdom
R v Silverlock [1894] 2 QB 766 R v Pitchfork and Kelly (Eng. 1987) R v Gordan [1995] 1 CR App R 290 R v Adams [1996] 2 Cr App R 467 Doheny and Adams v The Queen [1997] 1 CR App R 369 R v Adams [1998] 1 Cr App R 377 R v Marper and ‘S’ [2002] 1 W.L.R. 3223 R v Marper and ‘S’ [2003] H.R.L.R. 1 R v Marper and ‘S’ [2004] H.R.L.R. 35 R v Marper and ‘S’ [2004] 1 W.L.R. 2196 Regina v Kapya [2005] EWCA Crim 3366 Regina v Priestly [2006] EWCA Crim 2334 Regina v Thomas [2006] EWCA Crim 2442 R v Brima [2006] EWCA Crim 408 Regina v Codner, Kavanagh [2006] EWCA Crim 1273 Regina v Toora [2006] EWCA Crim 2816 R v Brima [2007] 1 Cr App R.24 The Queen v Hoey [2007] NICC 49 Regina v McDonald [2007] EWCA Crim 1117 R v Graham [2007] EWCA 2150 Regina v Rahman [2007] EWCA Crim 237 Kelly, Andrews v Regina [2007] EWCA Crim 1715
United States
Frye v. United States, 293 F, 1013 (D.C. Cir 1923) People of New York v. George Wesley and People of New York v. Cameron Bailey (533 N.Y.S.2d 643, 1988) People of New York v. Castro (545 N.Y.S.2d 985, 1989) United States v. Yee, et al (129 F.R.D. 629, 631, 1990) Daubert v Merrell Dow Pharmaceuticals, Inc (113 S. Ct 2786, 1993) xii LEGISLATION
New South Wales
Criminal Appeal Act 1912 Evidence Act 1995 Crimes (Forensic Procedures) Act 2000 Crimes (Forensic Procedures) Regulation 2000 Crimes (Appeal and Review) Act 2001 Crimes (Forensic Procedures) Amendment Act 2002 Crimes (Forensic Procedures) Amendment Act 2006 Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006 Crimes (Forensic Procedures) Amendment Act 2007
United Kingdom
Police and Criminal Evidence Act 1984 Criminal Justice and Public Order Act 1994 Criminal Evidence (Amendment) Act 1997 Human Rights Act 1998 Criminal Justice and Police Act 2001 Police (Amendment) Regulation 2002 Criminal Justice Act 2003 Serious Organised Crime and Police Act 2005
xiii LIST OF ABBREVIATIONS
ACPO Association of Chief Police Officers ACT Australian Capital Territory ADJ Adjournment AMA Australian Medical Association ATSI Australian and Torres Straight Islanders BCU Basic Command Units CCA Court of Criminal Appeal CCRC Criminal Cases Review Commission CID Criminal Investigation Department CJ Criminal Justice Sample CJP Criminal Justice and Police Act 2001 CJPO Criminal Justice and Public Order Act 1994 CMC Crimes and Misconduct Commission COPS Computerised Operational Policing System CPS Crown Prosecution Service CRFP Council for Registration of Forensic Practitioners CSI Crime Scene Investigation DNA Deoxyribonucleic Acid DCS NSW Department of Corrective Services DPP Director of Public Prosecutions ECHR European Convention on Human Rights FBI Federal Bureau of Investigation FIU Forensic Investigation Unit FPIT Forensic Procedure Implementation Team FRV Forensic Response Vehicle FSS Forensic Science Service FSU Forensic Submission Unit GCSE General Certificate of Secondary Education HMIC Her Majesty’s Inspectorate Constabulary
xiv HMPS Her Majesty’s Prison Service HOLMES Home Office Large Major Enquiry System HREC Human Research Ethics Committee ICI Imperial Chemicals Industries IPLDP Initial Police Learning and Development Program LAC Local Area Command LAPD Los Angeles Police Department LCN Low Copy Number MCLE Mandatory Continuing Legal Education MLP Multi-Locus Probe MSF Most Similar Force mtDNA Mitochondrial DNA NATA National Association Testing Authority NCBI National Centre for Biotechnology Information NCIDD National Criminal Investigation DNA Database NDIS National DNA Index System NDNAD National DNA Database NIJ National Institute of Justice NRC National Research Council NRL National Rugby League NSW New South Wales PACE Police and Criminal Evidence Act 1984 PCR Polymerase Chain Reaction PCSO Police Community Support Officers PDO Public Defenders Office PDR Performance Development Review PDS UK Public Defenders Service PED Police Elimination Database PIS Participant Information Statement QLD Queensland QWN Questions Without Notice RFLP Restriction Fragment Length Polymorphisms SLP Single Locus Probe xv SNP Single Nucleotide Polymorphisms SOCO Scene of Crime Officer SOCP Serious Organised Crime and Police Act 2005 SOPS Standard Operating Procedures STR Short Tandem Repeats TIC Taken Into Consideration TWGDAM Technical Working Group on DNA Analysis Methods UK United Kingdom US United States VNTRs Variable Number of Tandem Repeats Y-STR Y chromosome testing
xvi CHAPTER ONE: INTRODUCTION
Deoxyribonucleic Acid (DNA) has been hailed as the new gold standard in identification methods and is believed to have revolutionised law enforcement techniques. DNA profiling emerged in the late 1980s as a powerful tool for combating crime. In 1985, members of the British scientific community proposed that DNA fingerprinting1 would “revolutionise forensic biology particularly with regard to the identification of rape suspects” (Gill, Jeffreys and Werrett 1985: 577). Its usefulness and versatility has been continually demonstrated over the past two decades in the number of offenders it has identified and the number of people who have been exonerated.
The use of DNA evidence in 1987 to link Colin Pitchfork to the rapes and murders of two young women in the English Narborough Village captured the imagination of law enforcement agencies and governments internationally [R v Pitchfork and Kelly (1987)]. The Pitchfork (1987) case demonstrated that DNA evidence could reliably include and exclude a suspect from police enquiries (this case will be described in more detail in Chapter Two). It provided police with a more discriminating type of evidence than traditional blood or semen analysis could offer, which was particularly significant for sexual assault cases. The importance of this new type of evidence was secured when it was used to exonerate people. In the United States (US) 218 wrongly convicted people have been proved innocent by DNA evidence, including 16 people on death row (Innocence Project 2008). The ability to use DNA evidence to convict and exonerate people demonstrates the versatility of the technology and the potential to both prevent and amend miscarriages of justice.
1 The term DNA fingerprinting is no longer used because it suggests that a DNA profile can match someone as uniquely as a fingerprint can. As forensic DNA analysis only looks at a small portion of the whole DNA fragment, rather than the entire sequence, it can only be compared to a partial fingerprint and provide a probability that a sample belongs to a particular person.
1 Forensic DNA evidence was introduced at a time when concerns were being raised in the United Kingdom (UK) and Australia about the quality of evidence presented at trial, as well as the integrity of criminal justice organisations. These concerns were in relation to a number of miscarriages of justice that received considerable public attention. In particular, the English Birmingham Six case raised widespread questions about the potential for police to fabricate evidence, as well as the overall quality of forensic science (Williams and Johnson 2008).2 At around the same time, the Australian Morling Report (1987) on the Lindy Chamberlain case highlighted the potential dangers of relying on older forensic identification tools, such as blood analysis, and the potential for scientists to produce incorrect results.
These cases highlighted the fallibility of forensic science in criminal proceedings. It became very important for criminal justice systems to re-establish trust in forensic science techniques, because, as Corns (1990: 24) noted, the state has always relied heavily upon scientific evidence to secure convictions. This period of uncertainty and mistrust in the practices of police officers, prosecutors, and forensic experts created a niche for the introduction of improved standards and a new gold standard for evidence that was independent of corruption or manipulation.
DNA evidence was introduced as this new gold standard and was widely believed by politicians to solve many of the problems associated with miscarriages of justice. As Haggerty (2004: 224) stated:
DNA has been positioned as the scientific hero in many of these cases of fraudulent forensics, having played a prominent role in helping to release a rash of wrongly convicted individuals … DNA has consequently been regularly portrayed with a form of scientific triumphalism, where science thwarts human prejudices.
The phrase the “new scientific eyewitness identification”, as coined by Jack Ballantyne of the National Institute of Justice (NIJ), encapsulates the scientific objectivity and validity associated with DNA evidence (Ballantyne 2000: 98). For Corns (1992: 7)
2 The Birmingham Six were sentenced in 1975 and lodged 3 appeals in 1976, 1988 and 1991. The 1991 appeal was successful.
2 scientific evidence is important to criminal investigations because it is believed to remove the “guesswork” out of decisions of guilt or innocence.
The use of forensic evidence, such as DNA, is used to legitimise the procedures of the police and has become an integral aspect of risk management for criminal justice systems. There was, and is, a perception that DNA evidence is objective and infallible. For example, according to Corns (1992: 13), DNA technology has the ideology of infallibility, as it has been presented as “value-free, politically neutral, and above all, reliable”. This was an important aspect of the technology that allowed it to be routinely adopted by international criminal justice systems in the late 1980s in an effort to combat perceptions of an unjust system. DNA evidence was believed to be beyond police corruption and incapable of falsely implicating an innocent person.3 This, coupled with the ability to exclude suspects and exonerate the innocent endeared its use to both criminal justice agencies and civil liberty organisations.
The political sentiment of being “tough on crime” has ensured the continued use of DNA evidence in criminal justice systems in the UK and Australia. Politicians who support DNA evidence are viewed as being tough on crime because they are taking active steps towards identifying offenders. In contrast, those politicians who have questioned the value of DNA evidence and raised concerns about civil liberty issues (such as the erosion of the right to silence and the presumption of innocence) have been criticised for taking a lenient stance on offenders (Corns 1992: 13). Politicians and law enforcement agencies believe that DNA evidence provides new benefits for the investigation of criminal offences. For example, in 1999 Australia’s then Minister for Justice, Amanda Vanstone was one of many who argued that DNA evidence would benefit criminal investigations. In the words of Vanstone (1998: 3), DNA evidence meant:
• Highly convincing evidence that will secure more criminal convictions,
3 When DNA testing was first introduced into the criminal justice system, the scientific community maintained that while DNA testing could falsely exclude a person as the donor of a sample, it could not falsely include someone (Inman and Rudin 1997). This meant that no innocent person could be linked with a crime scene.
3 • Fewer resources wasted investigating the wrong person, and
• Crimes solved more quickly, meaning more crimes will be investigated.
These qualities, widely attributed to DNA evidence, have provided the primary foundations for criminal justice systems to adopt the technology rapidly into criminal investigations and prosecutions. Empirically, however, there is no evidence to suggest that DNA profiling is as advantageous as Vanstone claims.
Over the past decade, DNA evidence and DNA databases have become key political issues in the UK, US and Australia. Governments have justified the expanding use of DNA evidence on the basis of crime control management (Briody 2005a: 9). The UK was the first to recognise the potential of forensic DNA profiling. According to the Home Office (2005: 3), England “is the world leader in the application of DNA evidence in criminal investigations”. The UK was the first jurisdiction to use DNA evidence in criminal investigations; the first to legislate for the use of forensic DNA profiling; and the first to establish a national DNA database. The database has been heralded as a revolutionising tool that has increased the likelihood of identifying suspects. For example, the Home Office (2003a: 26) claimed that:
The probability of identifying one or more suspects for an offence, when a profile from a crime scene is loaded onto the Database, is over 40%. Each crime detected with DNA led to 0.8 other crimes being detected and the Home Office estimate that some 50% of detections led to convictions, 25% of these led to custodial sentences and each custodial sentence prevented a further 7.8 crimes being committed.
According to the Home Office, DNA profiling has improved the process of criminal investigations by increasing the number of crimes solved and prosecuted. The introduction of DNA profiling in the UK has encouraged international law enforcement agencies and legislative authorities to establish similar databases (Johnson and Williams 2007: 103). For example, the success of DNA profiling in the UK has inspired Australia to adopt the technology (Strutt 2003: 1).
The usefulness of DNA testing in criminal investigations is largely dependent upon the size of a DNA database. The larger the database; the more suspects can be identified.
4 The reported success of the databases has encouraged some academics to call for universal databases for crime control purposes (Cronan 2000; Kaye, Smith and Imwinkelried 2001; Kaye and Smith 2004; Jeffreys 2004).4 It has been argued that a universal database would increase the likelihood of identifying suspects in a more timely fashion. In addition, Kaye et al (2001: 5) suggest that a universal database “may represent a fairer and more effective accommodation of the interests in public safety and civil rights and liberties than the current system of piecemeal expansion”. A universal database is considered to be fair because it does not create a “criminal population” that can be targeted by police or lead to the over-representation of minority groups on the database.
In 2007, a senior judge in Britain suggested that the genetic information of every person born in, or visiting Britain, should be permanently recorded on a database (Morris 2007). His calls were largely criticised by civil libertarians, including the director of the human rights organisation Liberty, Shami Chakraborti, who argued that a universal database would be “ripe for indignity, error and abuse” (cited in Morris 2007). As there are continuing problems with creating reliable evidence (these will be discussed in the following section), the development of a universal database for crime control purposes could be problematic and create a number of errors as Chakraborti suggests. While DNA evidence is considered to be infallible and objective it needs to be used cautiously.
The need for research
Examining the role of DNA evidence in criminal justice systems is important because the technology is not infallible and its use can create injustices. A number of these problems have been raised and addressed by the scientific and legal communities. In the early 1990s, there were substantial legal challenges to the admissibility of DNA evidence in US, UK, and Australian courts. In the US, People of New York v. Castro (1989) and the OJ Simpson trial sparked international concern and debate about the validity and reliability of DNA evidence (these cases will be discussed in Chapter Two).
4 A universal database would include DNA profiles from everyone; preferably from the time they were born.
5 Although these initial problems were largely resolved by 1997, the admissibility debate succeeded in tarnishing the gold standard.
A number of problems continue to surround the use of DNA evidence in criminal investigations and prosecutions. Some of these issues relate to the transfer of DNA material; the potential to falsely include an innocent person as the donor of a sample; mislabelling of samples at laboratories; and concerns of genetic privacy and civil liberty issues. The growing use of DNA evidence has also created problems with resources, with many jurisdictions suffering backlogs in the laboratories. Laboratories have been unable to cope with the vast number of samples that are being submitted for analysis. The result is that some DNA samples are not profiled for six to twelve months after they have been sent to the laboratory, delaying trials and appeals (this will be discussed in Chapter Nine).
Secondary, or innocent, transfer, occurs when biological material is found in an area where there has been no direct contact “between the original source (donor of the DNA evidence) and the target surface” (Lee, Gaensslen, Bigbee, and Kearney 1994: 3). With the growing sensitivity of the technology, it is now easier to detect DNA material that has been transferred between people and areas. While this is not a concern in most cases, there have been cases where people have been wrongly included in police enquiries. Problems arise when an individual is unable to provide an acceptable alibi for the event, which leaves them open to suspicion and the potential for an unsafe conviction if a case relies on uncorroborated DNA evidence (these issues will be further explored in Chapter Nine).
As already mentioned, when DNA evidence was first introduced there was a belief that DNA tests could not falsely include a person. However, Aronson (2007) reported several US cases where scientists have intentionally falsely included a person when providing evidence for police and prosecutors (this will be discussed in Chapter Nine). In addition, there is a chance of providing incorrect DNA results through laboratory contamination or error. The potential for incorrect tests and the false inclusion of
6 individuals raises questions about the overall reliability of DNA test results and how these results are used in the process of an investigation or prosecution.
The proposal to create universal databases is occurring at the same time that problems are being identified with existing, smaller databases. There is evidence to suggest that the US has experienced problems with laboratories mislabelling DNA profiles. This has the potential to lead to miscarriages of justice, and in the US, an innocent man was jailed for a year for three counts of sexual assault based on inaccurately labelled DNA tests at the laboratory (Puit 2002). More recently, there has been evidence to suggest that a number of the records on the UK National DNA Database are also incorrect (this will be discussed in Chapter Nine). The extent of the problems created by incorrect record-keeping on DNA databases is unknown because insufficient attention has been provided to these issues.
The last concern with the use of DNA evidence and databases relates to questions of genetic privacy and civil liberty issues. DNA databases have been criticised for being over used with little regard for concerns about individual rights and privacy (Briody 2005a). Over the past decade, questions have been raised about who owns the genetic material found in DNA samples and subsequently retained in DNA profiles (Annas 2003).5 This has become an important concern in the covert collection of DNA samples. Questions are raised about who owns biological material found from a discarded cigarette butt or chewing gum (some NSW cases that address these issues are discussed in Chapter Five). In addition, there are concerns that DNA samples could be retained and used for insurance purposes at a later date. These issues are yet to be formally addressed by legislation in many countries, such as Australia and the UK, leaving these problems unresolved and open to continual criticism from civil liberty groups.
Although many of these issues remain, they have become less visible over recent years as admissibility challenges have decreased. These limitations of DNA profiling become
5 A DNA sample refers to the physical biological material that can be collected and analysed. A DNA profile refers to the information that is produced once a sample has been analysed. It contains no biological material. It is, in essence, a barcode of non-genetic information that can be interpreted by scientists.
7 more important when the wider use of the technology is considered. For example, the growing belief that the presence of DNA evidence equates to guilt is exceptionally problematic when there is a possibility of secondary transfer or contamination. It is essential that both criminal justice practitioners using the evidence, and the wider public who may become jurors, understand and recognise the associated problems with the technology.
This research contributes to the body of literature in an important way. It provides evidence on how criminal justice practitioners use DNA evidence and how this use has changed some investigative, legal and social practices. There is a dearth of criminological research in this area. As Briody (2005a: 16) stated, “there remains a noticeable lack of research from a criminological perspective about its overall effects in the criminal justice process”. There have been numerous papers written about the limitations of DNA evidence in criminal cases, and on the injustices that the use of the technology has created (Rothstein and Talbott 2006; Annas 2003; Edwards 2005; Gardiner 2002; Guillen, Lareu, Pestoni, Salas and Carracedo 2000; Haesler 2001a; Haesler 2001b; Briody 2005a). A number of these issues have already been touched upon and will be discussed in more detail throughout this dissertation.
There are relatively few studies that have researched how criminal justice practitioners use DNA evidence. Olivier (2001) conducted research into the ways in which South African police officers used DNA evidence in the course of an investigation. From the thirty-four detectives interviewed, twenty-six indicated that they used DNA evidence frequently in a wide range of cases, while only one respondent said he had no success with DNA (Olivier 2001: 6-7). Olivier (2001: 7) found that when officers did not use DNA evidence it was because it was considered too expensive or the laboratories needed to receive motivation from prosecutors before doing anything. He concluded that police officers required more training and information on how to use DNA evidence in order to increase the effectiveness of investigations (Olivier 2001: 8).
Purcell, Winfree and Mays (1994) interviewed prosecutors in the US while examining the role of DNA evidence in decisions on whether to proceed with a trial. The study
8 found that prosecutors believed that the likelihood of winning a case was increased when DNA evidence was available and that where DNA experts were presented there was a greater likelihood of conviction (Purcell et al 1994). Studies in this area tend to focus on how DNA evidence has affected specific areas of the criminal justice system, such as investigations or court outcomes, without providing a theoretical analysis of these impacts.
In addition, there is a noticeable absence of empirical research in Australia; specifically in New South Wales (NSW); and in the United Kingdom, on the overall significance of DNA evidence for these criminal jurisdictions. Several Australian studies have examined police compliance with DNA sampling and forensic procedures (NSW Ombudsman 2006); the statistical impact of DNA evidence on court cases in Queensland (QLD) (Briody 2005a); and the effects of evidence, such as DNA, on jurors (Wheate 2007). Similarly, the majority of evaluations of the use of DNA profiling in the UK have been conducted by British Government agencies, including the Forensic Science Service (FSS) and the Home Office, and have focused on the quantitative aspects of DNA evidence in the criminal justice system (FSS 2003a; Home Office 2003a; Home Office 2003b). While statistical evaluations are exceptionally useful, they have a number of limitations. For example, it is difficult to establish how many convictions DNA evidence has helped to secure because there are usually a number of factors that affect this outcome. Qualitative research can provide contextual evidence to suggest how DNA evidence helps to secure convictions.
Both jurisdictions have an absence of qualitative research on how a variety of criminal justice practitioners use DNA evidence to shape their judgements and how this in turn has affected the criminal justice system and beyond. This research aims to address this absence of research by interviewing a number of criminal justice practitioners in two separate jurisdictions.
Aims of the dissertation
This dissertation examines the impact of DNA profiling on criminal justice in two distinct jurisdictions: the Thames Valley in the United Kingdom (UK) and New South
9 Wales (NSW) in Australia. It examines the usefulness of the technology, and the changes in the criminal justice process that the technology has facilitated.
NSW has passed several acts in the past decade to expand the use of DNA profiling in criminal cases. There have been debates within Parliament about the legitimacy of these acts and the overall impact on civil liberties (which will be discussed in Chapter Five). The NSW Police have been particularly vocal in citing England’s use of DNA evidence when arguing for the adoption and expansion of police powers to collect DNA samples in NSW. In 2000, the then NSW Police Commissioner, Peter Ryan, stated that “If we can match the results now being achieved overseas, DNA technology will have a dramatic impact on crime in N.S.W." (Moldofsky 2000: 1). At the same time, the then NSW Police Minister, Paul Whelan, was considering a partnership with British police and forensic experts to “catapult NSW into the forefront of forensic science” (Whelan 2000 cited in Australian Associated Press 2000). In making this statement, Whelan referred to the number of DNA identifications that the UK was achieving through DNA matches on their national DNA database. As the NSW Police suggested that they follow the UK’s use of DNA profiling, it is important to examine how DNA profiling has been used in the UK.
The central thesis of this research is that DNA profiling has had a significant impact on the process of criminal justice in both NSW and the Thames Valley. The thesis addresses a number of research questions:
1. What accounts for the proliferation in the use of DNA profiling by criminal justice practitioners in recent years?
2. How has DNA profiling affected the way the criminal justice system operates?
3. Does the impact of DNA evidence vary with the type of offence?
4. Does its impact vary according to legal and historical contexts?
5. Does the use of DNA profiling lead to unintended consequences?
6. What are the theoretical implications of this study for understanding technological change in the criminal justice system?
10 This dissertation is primarily concerned with exploring the influences of forensic DNA profiling on the criminal justice process. The study uses police statistics, court judgments, and interviews with police officers, scene of crime officers, and forensic scientists in the Thames Valley and NSW, and prosecutors, defence lawyers, and judicial officers in NSW. These statistics and interviews provide an indication of the use and impact of DNA profiling in both jurisdictions.
Thesis overview
Due to the limited empirical research conducted on the impact of DNA evidence on the criminal justice system, there is no formal literature review in this dissertation. Rather, the existing literature is reviewed throughout the entire dissertation. Chapter Two examines the literature on the wider issues of DNA evidence and its historical uses. Chapters Five, Six, Seven, Eight and Nine incorporate the existing literature on the relevant topics (linked to the research questions) with the empirical findings of this study. This was done both because there is limited evidence and also to avoid repetition of issues throughout the thesis.
Chapter Two establishes the context of the dissertation and begins with a detailed examination of the historical developments of forensic evidence and DNA profiling in criminal justice systems. It recounts the initial positive reception of DNA profiling, and the important court cases that shaped the reception of the technology in the criminal justice system. These cases are important because they illustrate the fallibility of DNA evidence, and the growing awareness of the problems associated with using the technology. In addition, the fallout from the scientific community is described in relation to several prominent cases. This chapter provides a basis for understanding the legal developments described in Chapter Five, and a number of issues that are important for the findings of this study.
Chapter Three provides the theoretical underpinning of the dissertation and presents a conceptual framework through which the research questions will be analysed. It considers how technologies are influenced and shaped by social factors. This chapter explores how technological artefacts are given power by society through the belief that
11 they are objective and value-free. This is a central tenet of this thesis because DNA evidence is used by criminal justice organisations to legitimise police behaviour and to secure public support for the technique. In addition, it also explores the notion of technological trajectory and why similar technologies can differ between institutions and cultures. Technological frames and satisficing are invoked as frameworks for understanding why people comprehend and use technologies in different ways.
The research methodology is described in Chapter Four. A comparative case study approach was chosen to examine the impact and role of DNA evidence on the NSW and Thames Valley criminal justice systems. This chapter provides details on the two case studies and the methods used to answer the research questions. The processes involved in conducting the research are also described, and the ethical and methodological issues are considered.
The focus of the dissertation then shifts towards the empirical findings of the research. The first of these chapters, Chapter Five, examines the main legislative developments in NSW and Thames Valley. This chapter briefly explores the political climate and some of the factors that contributed to the introduction of DNA evidence into each of the jurisdictions. These factors are used as a foundation to explain the different ways that the Thames Valley and NSW criminal justice practitioners use DNA evidence (which is described in the later findings chapters). A prominent theme that emerges in Chapter Five is that of law and order politics and “tough on crime” sentiments.
Interviews with criminal justice practitioners and police statistics are used in Chapter Six to illustrate the proliferation of the technology in both jurisdictions. The indicators of the proliferation of DNA evidence are linked closely to the reasons for its widespread use. The three main indicators and reasons examined in this chapter are: issues of funding; the comparison of DNA evidence to other types of evidence; and the criminal justice practitioners’ perceptions that jurors and victims want DNA evidence.
Chapter Seven explores the ways that DNA evidence is used across offence types. One of the main effects of the technology has been an increase in the use of forensic science
12 in all offence types. DNA profiling was originally reserved for serious crimes, however, as Chapter Seven demonstrates, in recent years police have started to use DNA evidence routinely in most types of crime. These developments have implications for the resources required for serious and volume, or non-serious, crimes.
Chapter Eight examines the ways in which practitioners use and understand DNA evidence. In general, practitioners demonstrated different levels of understanding of the technology depending on their job type and their personal interest in the area. This chapter details how the different groups utilise DNA profiling in different ways to achieve particular results. Training manuals supplemented the interview data to illustrate the required level of knowledge.
The empirical aspect of the dissertation concludes with an examination of the impacts (both unintended and intended) of DNA profiling on the criminal justice system. Chapter Nine employs practitioners’ interviews to explore the ways in which DNA profiling has changed the wider process of the criminal justice system. Practitioners identified and demonstrated a number of benefits and problems created by the introduction of DNA testing and databases.
In Chapter Ten, the results from the previous chapters are drawn together and some of the implications for the continued use of forensic DNA profiling are considered. The chapter explains the similarities and differences in the adoption and continued use of DNA profiling in the NSW and Thames Valley criminal justice systems.
Finally, Chapter Eleven reflects on the overall use of DNA profiling in criminal jurisdictions and indicates some of the implications of this research.
13 CHAPTER TWO: A HISTORY OF FORENSIC IDENTIFICATION TECHNIQUES
In the 1920s Edmond Locard advanced the Law of Contact or Locard’s Exchange Principle. It states that:
When two objects come into contact there is always a transfer of material from one object to the other. Often this is obvious, at least in one direction, but even when the amount of material transferred, or its nature is such that nothing is visible, there is always some transfer (Locard 1934: 27, translated by Briody 2005a).
This principle provided the basis for using DNA profiling as a forensic tool. Over the past hundred years, criminal investigations have used physical evidence, such as blood and fingerprints, to link a suspect to a crime scene. DNA profiling is among the newest of these techniques. Since its introduction, DNA profiling has been heralded as a golden standard capable of identifying suspects and exonerating the innocent. This chapter presents an overview of the emergence of forensic identification techniques, and particularly the impact of DNA profiling on various criminal justice systems (see Appendix One for a timeline of these issues).
Forensic identity
Criminal identification is not a new phenomenon. Rather, the ability to identify people, and particularly offenders, has been a longstanding ambition of the criminal justice system that has manifested in different ways over time and social context. The aim of identification techniques has been to identify and manage the ‘unknown’, or ‘suspect’, element of society. Forms of identification have evolved from branding the body in pre- industrialised societies to the analysis of biological material in post-industrial societies.
Prior to industrialisation the opinions of eyewitness’ testimonies and branding techniques were the dominant methods of identification. However, the widespread movement of people between communities, resulting from rapid urbanisation associated with industrialisation, eroded the value of familiarity in eyewitness testimony. As a
14 result, several European states recognised the need for more systematic surveillance based on documentation (and eventually photography). Two main identification systems emerged at the end of the nineteenth century. The first was Bertillonage, a system to identify and control recidivists, developed in France, which was then followed by fingerprint identification. Fingerprinting was developed by British colonists in India and Japan in an attempt to control “hostile natives” (Cole 2001: 63).
Bertillonage In France in the 1870s, the courts sought a system that would enable judicial officers to differentiate between first-time offenders and recidivist offenders in order to tailor the punishment received by particular offenders. The prevailing system relied on police and prison guards identifying recidivist offenders by physical characteristics such as scars, tattoos and deformities. This system had obvious limitations and the Paris Prefecture Police (Sûreté) sought more reliable and systematic methods to accurately identify recidivist offenders. In response, Alphonse Bertillon, an assistant in the First Section of the Sûreté, conceptualised his system of anthropometry in 1879. This system, eventually described as Bertillonage, was referred to as “the cornerstone of modern criminology” (Thorwald 1965: 13).
Anthropometry uses bone measurements and physical characteristics in an attempt to uniquely identify a particular individual. Anthropometry was predicated upon statistical calculations derived by the Belgian astronomer and statistician Adolphe Quételet. Quételet proposed that “no two persons had identical physical measurements; also that the chances were four to one of finding two persons of exactly the same height” (Thorwald 1965: 20). Bertillon used Quételet’s theories as the basis for identifying recidivist offenders. He relied upon two basic assumptions: first that the size of an adult’s bones remained constant, and second, that people would never have more than four or five measurements in common. Using these statistics, Bertillon argued that eleven different anthropometric measurements would only coincide in about one of every four million measurements. This probability, however, was never established empirically.
15 In 1882, the Sûreté began to Bertillonage6 prisoners and record each prisoner’s measurements.7 The ability to make identifications enabled the courts to tailor sentences, and in the case of recidivists, increase the length of sentences. The initial success of Bertillonage depended on an elaborate filing system that allowed the categorisation and retrieval of hundreds of thousands of records (Champod, Lennard, Margot and Stoilovic 2004). At the beginning of the twentieth century Bertillonage was considered to be the “most accurate method of identification” (Saferstein 1998: 437).
However, Bertillonage began to decline in the early 1900s due to the lengthy measurement and filing procedures, as well as the emergence of inaccuracies. Many people opposed the system - characterising it as expensive (Robertson and Vignaux 1995: 5), cumbersome and “often fallible” (Cummins and Midlo 1961: 143). As Bertillonage was the only practical system of identification at the time, law enforcement agencies persisted with it despite its problems. However, in 1902, the system was publicly discredited in the Will West case in the US, when a guard declared that Will West was William West (a repeat offender) based on photographs and body measurements. When officials discovered that William West was already incarcerated, “their faith in anthropometry [was] shaken” (Cole 2001: 142).8 In consequence, Warden McCloughty of Fort Leavenworth declared, “This is the end of Bertillonage” (Thorwald 1965: 134). The gradual shift from Bertillonage was facilitated by the emergence of an alternative system of identification - fingerprinting (Lynch 2004).
Fingerprint identification Fingerprint identification relies on three fundamental principles proposed by Francis Galton in 1892: first, fingerprints are unique to individuals; second, fingerprints remain
6 The term Bertillonage was actually coined by French journalists and quickly became part of the French vocabulary (Thorwald 1965: 43). 7 The Bertillon system relied on a portrait parlé of a prisoner, which included two photographs and the eleven body measurements. 8 In the West case the foot measurements were outside the “maximum tolerable deviation” (Cole 2001: 140-167). As a result, under the strict rules of Bertillonage a match was impossible. 16 unchanged;9 and third, fingerprints can be systematically classified by ridge patterns (Saferstein 1998: 440-444).
Initially, fingerprinting was not promoted as a means of identifying offenders. Rather, British colonists implemented fingerprint identification as an administrative tool to manage what was perceived as the illiterate and untrustworthy indigenous population (Sengoopta 2003: 37).10 Fingerprinting, or dactylology as it was also known, emerged as a practical identification tool in India, in 1858. It was in response to British Administrators’ fears that violence, fraud, perjury and forgery had become common features of Indian society (Cole 2001). In that year, William Herschel requested that road contractor Rajyadhar Kõnãi sign a contract with his handprint to ensure the completion of the job (Beavan 2001). As such, fingerprinting first emerged as a civil identification tool designed to enforce a contract.
The civil application of fingerprinting was successful, but British enforcement agencies were reluctant to use the technique to identify criminals. In 1877, Herschel proposed to the Inspector of Jails and Registrar General, that fingerprinting be adopted as a means of identifying criminals. His proposal was rejected as far-fetched. Three years later Henry Faulds, another British colonist posted in Japan, encountered similar apathy from the British scientific and legal communities. Faulds (1880: 605) wrote to Nature about the possibility of using fingerprints to identify criminals from crime scenes.11 Despite
9 In America between 1934 and 1941 there were several prominent cases where offenders tried to remove their fingerprints. The first case involved a gang-member who had the skin from his fingertips removed. However, the police identified the surgeon who had removed the skin, and by that time the papillary ridges were already re-growing (Thorwald 1965). Other offenders used acid to remove the papillary ridges, only to discover the lines re-grew. Skin transfers were also tried and proved successful, however when police searched the body of an accused for scars it was evident that surgery had been conducted. 10 Although the focus here is on the British experience of fingerprinting, it is important to note that Argentina was the first country to base its Police Identification System solely upon fingerprints in 1896 through the work of Vucetich (Thorwald 1965). 11 Faulds thus became the first person to publish on fingerprints in modern literature (Cummins and Midlo 1961: 15). 17 these proposals, British police preferred Bertillonage to fingerprints, believing it to be more reliable.12
During the late 1890s, a new fingerprint classification system was developed and fingerprint evidence was used successfully in several criminal investigations and trials in India, Argentina and France.13 Following these successes, Britain adopted the fingerprint classification system on a trial basis in London in 1901.14 Fingerprinting proved to be a more efficient system than Bertillonage. It offered a quicker system for the collection of records, and all police officers could collect fingerprint impressions from offenders (in Bertillonage only Bertillon operators could take body measurements). In its first year, fingerprinting was used to identify 1,722 repeat offenders, compared to 642 identifications made through the Bertillonage system in the same period (Cole 2001: 94).
Although the establishment of fingerprint identification in the criminal justice system was a slow process, it provided numerous benefits in comparison to the Bertillonage system. First, fingerprints could be compared quickly and easily, and required less extensive training on how to collect and compare exhibits. Second, experts could visually demonstrate to a jury the procedures involved in matching two fingerprints. Third, fingerprints could be used to link offenders to crime scenes using Locard’s Exchange Principle. Fourth, and most importantly, the experts presenting fingerprint
12 One of the reasons law enforcement agencies were reluctant to trial fingerprinting was because it was largely untried and lacked an efficient classification system. Today, the commonly used classification system is a combination of Galton and Henry’s work. Galton developed his own classification system and calculated the probability of one in 64 billion of matching two complete fingerprints from different people (Cole 2001: 80). However, Galton’s classification system was inadequate and it was Edward Henry who established the first widely used fingerprint classification system. Edward Henry subdivided Galton’s classification system and officially introduced it by the recommendation of a Committee (consisting of two people who made a recommendation in two days [Polson 1950: 690]) into the Bengal police force in 1897. Some aspects of Henry’s classification system are still in use today in most English- speaking countries (Saferstein 1998: 439). 13 Bertillon was the first person to solve a crime using fingerprints. Bertillon was able to match a fingerprint found at the murder scene with the fingerprints recorded on his anthropometric index cards. 14 The important aspect of this trial was the establishment of the principle that although the presence of a fingerprint may place a person at a crime scene, it does not mean that they are guilty of any crime. 18 evidence offered a united front, thus limiting the number of challenges to the evidence at trial (Cole 1998).
The emergence of DNA profiling Unlike anthropometry or dactylology, DNA testing was not originally developed as an identification technique; instead it emerged from other biomedical research.15 Although deoxyribonucleic acid was discovered in the 1920s, it was not until the late 1940s and early 1950s that scientific communities began to appreciate the significance of DNA for genetics. At that time, DNA was not known to be a means of identification, and there was no concrete proof that DNA was the “unique determiner of genetic specificity” (Hershey 1953: 138). Rather, the search to understand this molecule was driven by a belief that DNA could be the genetic blue-print for life.
With the discovery of the structure of DNA in 1953, by James Watson and Francis Crick, scientists began to focus on the potential for DNA to provide genetic information. A breakthrough occurred in Britain in 1984 at the Lister Institute when Alec Jeffreys, Victoria Wilson and Swee Thein revealed the existence of minisatellite regions also known as variable number of tandem repeats (VNTRs) (see Appendix Two). Using a technique called restriction fragment length polymorphism (RFLP) Jeffreys and his team discovered that VNTR sections of the genome sequence had a high level of variation between individuals - with the exception of identical twins - making it possible to identify individuals from sections of their DNA (Jeffreys, Wilson and Thein 1985: 67).
The term DNA Fingerprints was given to this new procedure to highlight how DNA tests could be used for identification purposes. Like fingerprints, DNA profiles derived from “a single drop of blood” could lead to positive identifications (Jeffreys, Wilson and Thein 1985: 67). Once DNA was understood to provide genetic information
15 According to Wambaugh (1989: 71) in his account of the Narborough killings, genetic fingerprinting was a “fringe project” for Jeffreys who was involved in research to determine how genes evolve. Further, Wambaugh (1989: 74) claims that it was Jeffreys’ wife, Susan, who realised the potential of the DNA sequence to identify a person, especially in immigration cases. 19 responsible for identity it was quickly adopted by the legal system for use in paternity, immigration, and criminal cases.16
DNA evidence as a golden standard
DNA evidence is one of the newer identification techniques, and is often “hailed as the most important breakthrough in crime investigation since the introduction of the fingerprint identification system” (Green 2000: 7). One of the most beneficial aspects of forensic DNA profiling is that it can be used to investigate and prosecute criminal cases and exonerate the innocent. In particular, forensic DNA evidence offers a number of benefits to police investigations. For Gans and Urbas (2002: 3):
In the right circumstances, [DNA] exclusions may divert resources from fruitless inquiries and point investigators to the real perpetrator. More importantly, a timely exclusion that clears a suspect may save that suspect from the ordeal of a criminal investigation and even an erroneous conviction based on unreliable traditional investigative methods.
Information obtained from a DNA match can also be used to “enhance conventional interrogative strategies” and limit the type of defence led at trial (Prime and Newman 2007: 2). Police can also use DNA matching techniques to identify a suspect from a group of individuals through the process of mass-screening a particular regional area (this will be discussed in more detail later in the chapter in relation to the Pitchfork case). Trials can be shortened or eliminated if a DNA match results in a guilty plea, thus saving resources and relieving victims of the “emotional burden of reliving the crime at trial” (Prime and Newman 2007: 2).
DNA profiling began to capture the imagination of politicians, law enforcement agencies, and the public in the late 1980s through its ‘success’ in several high profile
16 The first forensic use of DNA occurred in 1985 in Britain to settle an immigration case based on paternity. The case relied on the principle that although the DNA of a person is unique (with the exception of twins); the DNA of blood relatives is similar enough to identify paternal links (Jeffreys, Brookfield and Semeonoff 1985). Jeffreys and his team were asked to examine an applicant’s DNA to determine if he had family in the UK for immigration purposes (Jeffreys, Brookfield and Semeonoff 1985). Jeffreys’ involvement in immigration cases attracted so much attention that his regular work was disrupted. 20 cases. These original cases demonstrated the versatility of the technology and its superiority to many types of evidence, such as eyewitness testimony and confessions.
The highly publicised Pitchfork (1987) case in Narborough Village is often cited as the main reason for the adoption of DNA profiling techniques in criminal investigations (Briody 2005a). In 1983 and 1986 two women were found raped and murdered in the Narborough area. Although the police suspected that the same person had committed both crimes, 17-year old Rodney Buckland would only confess to the second murder. In an attempt to link both crimes, the police employed Alec Jeffreys to match the suspects DNA to the semen found at both crimes.17 Jeffreys was able to link the two crimes together and exclude Buckland as the offender. Buckland became the first person to be excluded by DNA evidence (Gill and Werrett 1987: 145-148) and since the Pitchfork case there has been evidence to suggest that in the US “about 25 to 30 percent of the samples submitted for testing come back excluding the prime suspect” (Lee and Tirnady 2003: xviii). One of the major benefits is that the early exclusion of suspects saves the criminal justice system time and resources (Taupin 1994).
The world’s first mass screening occurred in the Pitchfork case with the police screening over 5,000 men from the surrounding areas of the crimes (Gill 2005). The screening was unsuccessful and Colin Pitchfork was only later discovered after his co- worker told friends at a pub that Pitchfork had asked him to submit a sample to the police on his behalf.18 Pitchfork confessed and subsequent DNA tests linked him to both crimes. The use of DNA profiling in Pitchfork illustrated the versatility of the technology, and particularly the potential for excluding suspects and exonerating the innocent (this will be discussed later in this chapter).
17 The common narrative of the Pitchfork case is that the police approached Jeffreys for DNA testing to link Buckland to both murders (Gill 2005). However, Wambaugh (1989: 147) suggests that it was Buckland’s father who approached his solicitor to look into the possibility of DNA testing. 18 The process of the mass screening in Pitchfork consumed a significant amount of time and money, as individuals were required to provide photo identification, or in cases where this was impossible, the police were required to take a Polaroid and confirm the identity independently through a neighbour. In addition, laboratories were unable to cope with the amount of blood that was submitted and police resisted the new identification technique (Wambaugh 1989). 21 Although Pitchfork is often credited with being the original DNA case, the first occasion was the conviction of Robert Melias for the rape of a disabled woman in Bristol (UK) in 1987. While Melias originally denied involvement in the offence, when he was confronted with DNA evidence he became the first person to change his plea to guilty as a result of a DNA match (Phillips 1988; Lohr 1987). Cases such as Melias have created expectations that DNA evidence will encourage suspects to plead guilty. In recent years there has been anecdotal evidence to suggest that:
… between 70% and 80% of suspects confronted with DNA evidence plead ‘guilty’. So it’s not just our officers who believe in the power of DNA – the villains recognise its worth also! (Gunn 2003:155)
Although there is no systematic empirical evidence to suggest that DNA evidence does encourage suspects to plead guilty, the assumption remains a powerful argument for the continued use of DNA profiling in criminal cases.19 There has, however, been research to suggest that DNA evidence has no effect on guilty pleas, especially where there is no benefit for the defendant (Briody 2005b; Victorian Parliament Law Reform Committee 2004).
In Australia, there were two early cases that influenced the way that DNA evidence is now used by police to investigate criminal offences. Australia’s first case involving DNA evidence occurred in 1989 in the trial of Desmond Applebee. As Australia’s first criminal case to use DNA evidence, it “represented a turning point in forensic evidence in the ACT [Australian Capital Territory], and indeed Australia” (Coelli 1989: 22). Through the course of the trial, Applebee changed his defence on three occasions. The first defence was “I wasn’t there” - which later changed to “the police are not credible”, which eventually became - the victim “consented”. The case was important because it demonstrated the ability of DNA evidence to corroborate a complainant’s assertion and discredit a defendant. However, the case also raised concerns about the increase of consent defences in sexual assault cases (Coelli 1989: 24).
19 Although Briody’s (2006) study indicated that DNA evidence may have encouraged offenders of property crimes to plead guilty, there are too many mitigating factors associated with guilty pleas to be able to determine the direct cause of the plea. 22
The second case, also in 1989, indicated how a suspect’s DNA could be inferred from a relative’s DNA profile. In this case, the Victorian police sought DNA samples from George Kaufman’s relatives because they lacked the power to compel the suspect to provide a sample (Selinger and Magnusson 1989: 8). In doing so, the police were able to connect Kaufman to the offences without his consent or knowledge. Eventually, the semen samples were linked to a blood sample taken from Kaufman who consequently pleaded guilty (Simpson 1989: 14).
As already mentioned, the Pitchfork case demonstrated that DNA evidence has the power to exclude individuals from police investigations. This concept was quickly adopted to also exonerate people who were wrongly convicted. The first person to be exonerated by DNA evidence was Gary Dotson in the US in 1989. Dotson’s conviction in 1977 was based on the victims’ inaccurate eyewitness identification. Despite the victim retracting her statement in 1985, the trial judge refused to order a new trial (Connors, Lundregan, Miller and McEwan 1996: 52). Four years later, Dotson was exonerated after a new defence attorney successfully requested for DNA tests to be conducted (Innocence Project 2001). The Dotson case highlighted the problems with subjective forms of evidence, and helped to establish DNA evidence as an objective truth-finder of both guilt and innocence. It was an important case that illustrated the need to formally review cases where convicted offenders had maintained their innocence and where DNA evidence was available (the use of DNA evidence in exonerations in examined in more detail in Chapter Five).
Challenging the gold standard
By the late 1980s, DNA evidence was routinely admitted as incriminating prosecution evidence in the US, UK and Australian courts. The UK Home Office played an active role in ensuring the development of the technology as a prosecutorial tool. In 1987 Alec Jeffreys and the Lister Institute granted a licence to a private company, Imperial Chemicals Industries Plc (ICI) to commercially develop DNA technologies. However, after the Pitchfork case, the Home Office secured the rights for its Forensic Science Service (FSS) to exclusively develop and control all forensic DNA casework (Aronson
23 2007: 17), thus ensuring that police and prosecutors had access to the technology. At around the same time, two US companies – Lifecodes and Orchid Cellmark – also began to capitalise on the success of forensic DNA profiling. As in the UK, both laboratories provided the majority of their services to prosecutors. This meant that:
Defense attorneys desperately needed expert witnesses from the academic science community who could match the qualifications, reputation, and enthusiasm of prosecution witnesses. However, because the technology was not yet well known outside of the two private companies [Lifecodes and Cellmark], there was not a pool of molecular biologists, population geneticists, or forensic scientists who were willing to testify on behalf of the defense (Aronson 2007: 56).
This situation changed in early 1989 when two defence attorneys in the US, Barry Scheck and Peter Neufeld, challenged the reliability of DNA evidence in the Castro (1989) case. Subsequently, there have been numerous challenges to the admissibility and use of DNA evidence in courts worldwide.
Castro was the first critical response to forensic DNA profiling evidence. Freckelton (2005: 555) noted that “the case of People v Castro provided the first opportunity for DNA profiling techniques to be put under the forensic microscope”.20 Castro was accused of killing a woman and her child. This accusation was based on circumstantial evidence and a stain, believed to be the victim’s blood that was found on Castro’s watchband. Scheck and Neufeld challenged the admissibility of the DNA evidence, the process in which the tests were conducted, and the interpretation of the results. The foundation of the defence was that the interpretation of the DNA results was not ‘generally accepted’ by the scientific community, a requirement for admissibility dating back to US v Frye (1923). In Castro, Judge Sheindlin conservatively ruled that even though DNA evidence was admissible under Frye, the evidence in this case was inadmissible because the laboratory used inadequate controls when testing the DNA
20 Although, Castro was the first case to successfully question the admissibility and reliability of DNA evidence, it was not the first opportunity to do so. Indeed, Wesley and Bailey (1988) preceded Castro by a year, and was the first case in which a defence expert was used to challenge the reliability of DNA techniques (Aronson 2007). 24 samples.21 This ruling allowed both the defence and prosecution to see the case as a success – a success for the defence because the evidence was held to be inadmissible; and a success for the prosecution because Judge Sheindlin endorsed the technology and its admissibility in the majority of cases (Aronson 2007: 76).
The Castro decision suggested that all laboratory results and reports should be provided to the defence; that statistical probability calculations and any laboratory errors should be explained; and sufficient proof of chain of custody be provided. In addition, it created a new standard for expert witnesses presenting DNA evidence.
The DNA Wars Following Castro, common law legal systems began to respond more critically to DNA profiling as a form of evidence in the early 1990s. What ensued was a split among scientists - mainly in the US - about the reliability of DNA evidence and in particular the use of population statistics when declaring matches. This period became known as the DNA Wars and affected how DNA evidence was used in US, UK and Australian trials. These issues were highlighted in two Australian cases: R v Tran (1990) and R v Lucas (1992) and represented a considerable shift from an era when defence lawyers encountered difficulty securing scientists critical of DNA evidence (Thompson 1993: 95).22
During the early 1990s, one of the main issues that arose related to laboratory standards and the continuity of exhibits. Some of these issues included: the number of people handling a sample, dress codes for people analysing the sample, probe contamination, (Lander 1989; National Research Council [NRC] 1992), and the authority of an expert to present evidence (Aronson 2007).23 In particular the deficient standards in “declaring
21 Interestingly, after Castro pleaded guilty Judge Sheindlin asked Castro if the stain on the watch was the victim’s blood. Castro admitted it was. 22 However, in some jurisdictions where there are insufficient forensic services, the defence can still experience problems securing forensic scientists independent of the State (which is discussed in more detail in Chapter Nine). 23 This refers to the process of ensuring that the exhibits are collected, sealed and transported correctly and that there is a direct chain of evidence linking the transportation of the exhibit. 25 a match between patterns;24 interpreting artefacts on gels; choosing probes; assembling databases; and computing genotype frequencies” were the focus of much of the debate (Lander and Budowle 1994: 735).
Until Castro, the laboratories, scientists and procedures involved in testing DNA samples were not closely scrutinised by the courts. This lack of scrutiny changed when the Federal Bureau of Investigation (FBI) laboratory came under considerable scrutiny in the late 1980s and early 1990s. In United States v. Yee, et al (1990) Scheck and Neufeld criticised the reliability of the DNA results and:
…[they] were not just making an argument about the validity and reliability of the FBI’s DNA typing regime, they were also making a claim about what constitutes good science and legitimate peer review … (Aronson 2007: 124).
Once the legal community became aware that DNA was not infallible, and that laboratory procedures could affect the outcome of a sample, criminal justice practitioners, and most importantly judicial officers, began to demand controlled laboratory procedures.
Some members of the scientific community also became concerned with how a jury should interpret and use DNA evidence. In the Victorian case of Lucas (1992), the experts for the Crown and defence had contrasting views on the reliability of the evidence and the significance of the results. Hampel, J ruled that the jury was incapable of resolving the different opinions of the experts; and excluded the evidence on the basis that it would unfairly prejudice the jury.
Overall, the area that provided the greatest difficulty for the scientific community was the issue of population statistics and probabilities. The issue essentially became whether the probability of a suspect’s sample matching the crime scene sample should be based
24 Although Lifecodes reported using a computer to measure matches between samples, the common practice relied on a scientist’s subjective visual match. This subjective method is less reliable than the computer generated match because it fails to take into account standard deviations. 26 on a theory of a random mating population or an inter-breeding population.25 Population frequencies are based on theoretical models of population genetics (NRC 1992: 10). Given this, scientists, such as Lewontin and Hartl (1991), Cohen, Lynch, Taylor, Green, Lander, Devlin, Risch and Roeder (1991), have argued that some ethnic populations, such as Indigenous Australians, are more likely to have similar profiles than other ethnic populations. Other scientists, such as Chakraborty and Kidd (1991), have contended that inter-breeding was unlikely to have a significant impact on the probabilities presented and even if they did, they were already taken into account through existing protocols. Disagreements arose about the presentation of population statistics at trial.
The debate about ethnic population frequencies posed a crucial problem for courts, especially because minorities already tended to be over-represented in criminal justice systems. As the scientific community was divided on the issue of population genetics, DNA was ruled inadmissible in several court cases, especially in the US. These issues also began to appear in Australian and UK criminal cases. In the NSW case of Tran (1990) the defence raised concerns about the creation of statistics, without a reliable database, that included persons of Vietnamese or South-East Asian origin. Like many US judges, the judicial officer in Tran ruled the DNA evidence inadmissible because of the conflict over population statistics.
Cases like Tran, and Lucas raised many of the issues that were being debated in the US during the DNA Wars. Although Freckelton (2005) refers to the Tran and Lucas cases as “setbacks” in the use of DNA evidence in Australian courts,26 they provided important precedents for the admissibility of evidence and set benchmarks for testing DNA samples, creating population statistics and presenting evidence in trials. They also created the need for scientists to resolve the problems surrounding the reliability of DNA evidence and the calculation of population statistics.
25 See Lewontin and Hartl (1991) and Chakraborty and Kidd (1991) for examples of the types of debates that occurred via journal articles. The arguments became heated as scientists tried to discredit the work of others and present their own findings as accurate. 26 Freckleton (2005) considered these cases as “setbacks” because they excluded DNA evidence from the courts and established precedence for the continued exclusion of evidence. 27 Initial responses to the DNA Wars As these problems became more prominent, there was growing concern about the admissibility and reliability of DNA testing and evidence. In an effort to understand and address these problems the US Congress “carried out hearings on how to regulate DNA identification in the criminal justice system” (Aronson 2007: 146). It was hoped that the Congress could use information from the US 1992 National Research Council’s (NRC) report on DNA Technology in Forensic Science to resolve the issues surrounding population statistics and the validity and reliability of DNA testing (Aronson 2007: 146). The NRC Report (1992) provided numerous recommendations and attempted to resolve the problems raised by scientists in the early 1990s.
A number of the NRC’s 1992 recommendations were adopted by forensic laboratories in the US, and internationally. For example, as a result of the report’s recommendation, all forensic DNA laboratories in the US, UK and Australia are now nationally accredited and regulated to ensure high laboratory standards and procedures.27 This accreditation process solved problems, such as inadequate laboratory procedures and the continuity of exhibits. It also meant that laboratories, including the FBI laboratories, were open to the scrutiny of the scientific community. However, the NRC’s recommendations did not eliminate the problems. In the UK case of R v Gordan [1995] the defence cast doubt over the gels and procedures used by the laboratory, highlighting the continuing problems associated with DNA testing despite improved laboratory standards.
The 1992 NRC report reiterated the importance of clarifying the use and presentation of DNA evidence to juries. The NRC (1992: 22) was particularly concerned with the possibility of DNA evidence containing an “aura of infallibility that could overwhelm a
27 Australian laboratories are accredited through the National Association of Testing Authorities (NATA), an independent government-endorsed provider of accreditation (NATA 2008; Goold, Pearn, Bettiol and Ballantyne 2006). Orchid Cellmark laboratories in the UK and US are accredited by multiple international organisations, including International Organization for Standardization and American Association of Blood Banks (Orchid Cellmark 2008). 28 jury’s faculties”.28 This sentiment was echoed in the English use of Gordan when Lord Chief Justice Taylor ruled DNA evidence inadmissible because of the “dramatic quality” of the statistics which may have exerted a “strong influence upon” the jury. Like the NRC report, Lord Taylor was careful to pronounce that he did not “doubt the validity and value of DNA evidence in general”; rather he focused on the issues relevant to this specific case. Despite the fears of the scientific community that judicial officers would exclude DNA evidence on a routine basis, it became evident that the judiciary accepted DNA testing as a valid scientific technique and focused on the circumstances of the DNA evidence in the specific case.
In general the NRC report received a lot of criticism from scientists, and ultimately failed to solve the DNA Wars. Aronson (2007: 146) aptly surmised that the NRC report failed because the FBI and members of the scientific community recognised that the report was trying to appease all sides of the debate. The result was that many of the principles were considered to be too conservative and unscientific. One of the most problematic recommendations of the NRC report was the proposal of using the ceiling principle to create reliable population statistics. 29 The ceiling principle was intended to present a conservative probability that favoured the defendant (NRC 1992). Thus the NRC tried to sidestep the inherent debates concerning population statistics by advocating a conservative, but unscientific, principle.
Closing the DNA Wars The need to have a reliable forensic tool encouraged leading scientists and institutions to endeavour to close the DNA Wars rather than risk having DNA evidence ruled inadmissible. As the first NRC report failed to achieve closure, Eric Lander and Bruce Budowle joined forces in 1994 to write an article titled ‘DNA fingerprinting dispute laid
28 This concern has recently resurfaced in the debates around the validity of the CSI Effect on juries (which will be discussed in Chapter Six). 29 The ceiling principle essentially recommended that the probability for each ethnic population be calculated. The NRC argued that there were 15-20 ethnic populations in US. The population where there is a greater chance of two people sharing similar profiles should be presented to the courts, or else a 5% rate, whichever is larger, would be presented in court (NRC 1992: 13). 29 to rest’.30 Both Lander and Budowle wanted people to stop questioning the reliability and validity of DNA as a form of evidence so that it could be used for the OJ Simpson trial (Lynch and Jasanoff 1998). The article claimed that the DNA Wars were over:
By the middle of this year, there had been more than 400 scientific papers, 100 scientific conferences, 3 sets of guidelines from the Technical Working Group on DNA Analysis Methods (TWGDAM), 150 court decisions and, importantly, a 3-year study by a National Research Council (NRC) committee released in 1992. In light of this extraordinary scrutiny, it seems appropriate to ask whether there remains any important unresolved issue about DNA typing, or whether it is time to declare the great [DNA] fingerprinting controversy over … The DNA fingerprinting wars are over (Lander and Budowle 1994: 735).
The article was one of many moves by the FBI and some members of the scientific community to resolve the debate surrounding the reliability of DNA evidence.
Despite the efforts of Lander and Budowle, there was still concern about the reliability of DNA testing and the creation of population statistics, which emerged during the OJ Simpson trial. During the trial there was considerable concern about the reliability of the DNA evidence and the defence claimed that the DNA samples had been either planted by racist Los Angeles Police Department (LAPD) officers,31 or accidentally contaminated with Simpson’s DNA at the laboratory.32
30 At the beginning of the dispute, Lander and Budowle had conflicting views. The fact that they joined to write this article was intended to demonstrate that there was a new consensus. 31 The defence accused the LAPD of switching samples and planting Nicole Brown Simpson’s blood on Simpson’s sock. The argument was that the sock was examined on several occasions and no bloodstain was visible, however a month after the last examination the bloodstain was clearly visible. The smearing of the blood on the sock was also inconsistent with the prosecution’s account (Thompson 1996). 32 An LAPD criminalist admitted that he spilled some of Simpson’s blood from a reference vial and then shortly afterwards handled other evidence in the same area (Thompson 1996). The defence team argued that Simpson’s blood could have been transferred to the Rockingham glove then (a further problem for the prosecution was that the glove did not fit Simpson in the courtroom, thus casting further doubt on the evidence). The defence also accused the criminalists of improper collection techniques of the blood found at the crime scene (Thompson 1996). Reference vials of Nicole Brown Simpson and Ronald Goldman were found to contain DNA from Simpson, clearly indicating cross-contamination. These issues discredited the laboratory and raised questions about the reliability of the DNA evidence produced. 30 The trial of OJ Simpson caught the attention of the international community. As Lazer (2004: 4 original emphases) noted, “there was more media coverage of DNA issues in the Simpson case than on both the development of a national DNA database and wrongful convictions uncovered as a result of DNA evidence during the entire 1990s”. Lazer (2004) attributes this attention to the lack of trust of the criminal justice system, and in particular the LAPD, rather than distrust in DNA evidence. The case also meant that, “one of the lasting effects of the OJ Simpson case will likely be greater scrutiny by defence lawyers of the prosecutor’s forensic DNA evidence presented in criminal cases” (Connors et al 1996: 25).
The efforts of Lander and Budowle failed to resolve the debates and increased concerns for some members of the scientific community (Redmayne 1995: 472). One of the continuing barriers to solving the disputes was the issue of population statistics. The FBI requested that the NRC re-investigate the problem of population statistics. In doing so, the FBI “succeeded in making population genetics the dominant issue to be resolved” (Aronson 2007: 174). In 1996 the NRC published their second report, which conceded that the ceiling principle should be replaced by the product rule. Essentially, this meant that where the race of the offender, and not the suspect, is known, the database should reflect the offender’s ethnic group.33 However, where the offender’s ethnicity is unknown, a general calculation should be made for each type of racial group. The most conservative match probability (the lowest probability that the DNA belongs to the defendant) should be presented to the court in the interests of fairness to the defendant. The product rule is currently in use in countries such as the US, UK and Australia.
Although the problems surrounding the reliability and admissibility of DNA evidence subsided after the NRC (1996) report, the division between scientists has had lasting effects on the use of forensic DNA profiling in US, UK and Australian criminal jurisdictions. The DNA Wars illustrated to defence lawyers, civil libertarians and the wider public that there could be considerable problems with DNA results and the manner in which they are presented in court. However, as Lynch and Jasanoff (1998)
33 It is important that it is the offender and not the suspect’s race that is calculated. 31 noted, the questioning of DNA evidence also facilitated its acceptance by the criminal justice system because it was viewed as a stronger technology after the debates were largely resolved. The scientific community was obliged to negotiate several issues concerning DNA profiling. Issues such as laboratory protocols and declaration of matches, were categorised into acceptable and unacceptable procedures, that could then be used by courts to determine the admissibility of evidence. The closure of the controversy allowed DNA profiling to be routinely accepted by legal systems and governments around the world.
Ongoing controversies The openness of the debates around the reliability and validity of DNA evidence during the early 1990s has enabled defence lawyers to continue to challenge DNA evidence in criminal trials and appeals. This section examines a number of criminal trials in Australia and the UK that illustrate continuing challenges to DNA evidence as well as a number of issues with the technology that have been raised by the scientific and legal community. These include challenges against: laboratory procedures and standards; the creation and presentation of statistics; the use of new technologies; the interpretation of results; inclusion and exclusion of matches; and the risk of false positive matches due to kinship contamination. Many of these problems have been avoided by laboratories through adopting a ‘best-practice’ procedure.
Despite the efforts of the NRC Reports (1992 and 1996) problems are still being identified with laboratory procedures and standards. For example, a 2002 study into laboratories in the US revealed that one in every hundred laboratory tests yielded incorrect results (Edwards 2005). In Australia alone, there have been several cases of laboratory errors; for example in August 2008, the Victorian Police ordered a review of 7,000 cases after a “DNA bungle” (contamination at the laboratory) led to a man being wrongly charged of murder (Hannan 2008: 1). As errors can occur when interpreting the results of a DNA profile, Burton (2004: 106) suggests that only experts with specialised knowledge should be allowed to interpret results. According to Balazic and Zupanic (1999: S1), the best way to ensure laboratory quality is “regular monitoring of laboratory procedures” and regular performance assessments. However, one of the
32 problems with introducing best practice procedures is that scientists will often deny that error rates exist and may refuse to participate in laboratory quality audits (Saks and Koehler 2005: 894; Aronson 2007: 5).
Contamination is an important area of concern because it can affect the inclusion or exclusion of a person from a match. 34 Contamination can occur in a number of different stages involved in collecting and analysing a DNA sample. Contamination can occur at the crime scene by civilians, crime scene officers, and police officers; and at the laboratory by scientists and cross-contamination between different crime scene samples, which makes two unrelated crime scenes become connected (Edwards 2006). As contamination can be difficult to detect, Burton (2004) suggests that a number of “best- practice” procedures be adopted to minimise the risk of contamination. For example, as DNA samples can be handled by multiple people before they can be profiled, Burton (2004: 105) suggests that each handler of a sample must be available to provide evidence at trial and must be trained to prevent contamination. In addition, scene of crime officers and police officers should be trained to successfully collect evidence at crime scenes (Martin 2001: 34). One suggestion for best practice was that officers should use “about half a box of gloves per crime scene” when collecting evidence (Martin 2001: 33).
According to Gans and Urbas (2002: 3), “a persistent danger” to the reliability of DNA matches is the potential for false inclusions, or false positive matches, to occur. False inclusions occur when profiles from two different samples are incorrectly matched to the same person (also known as adventitious matching). There is also a greater likelihood of false inclusion where there is a kinship relationship. As family members are more likely to share DNA traits there is a greater likelihood that a false positive match could occur where cold hits links are used (Edwards 2006: 99; Haimes 2006).
34 There are three possible outcomes of DNA matching: a null result, a negative result (exclusion), or a positive result (inclusion) (Gans and Urbas 2002: 3). A null result means that the profile cannot be compared to the comparison sample. Exclusion means that there is no DNA match because the profiles are inconsistent with one another. Inclusion means that the DNA samples are consistent with each other and there is a match. 33 False inclusions are also more likely to occur where there is a mixed profile (Edwards 2006: 97).
Although there have been no known false matches in Australia, there have been two noteworthy cases internationally where people have been falsely accused of committing a crime (Gans and Urbas 2002: 3). In 1999, a man suffering from Parkinson’s disease was falsely arrested by UK police after his DNA allegedly matched that taken from a break and enter crime scene. In this case, the false match occurred because only six loci were tested (instead of the standard ten loci), thus decreasing the reliability of the match (Edwards 2006: 97). The second case also occurred in 1999, in New Zealand where contamination at the laboratory led to a false positive match (Gans and Urbas 2002: 3). While Gans and Urbas (2002: 5) argue that the risks of false matches are “not cause to reject its use by crime investigators”, an Australian forensic scientist, Dr Atchinson advocates that DNA evidence requires corroboration in court to avoid problems of false inclusions (cited in Burton 2004: 105).
Issues such as: problems with identifying profiles from mixed samples; the validity of the technology used to test DNA samples; and the capacity of scientists to present as expert witnesses at court have been important issues raised in Australian and UK appeals in the last decade. In particular, the NSW case of R v Sing [2002] challenged the ability for an expert witness to testify on specific aspects of cases where they were not directly involved. In Sing neither of the two Crown experts were involved in the DNA testing process and as a result, the defence claimed the evidence was hearsay.35 The court ruled that the evidence of the two scientists was inadmissible because they were not directly involved in the procedures of creating a DNA profile and a re-trial was ordered. However, in the more recent case of Regina v Sharwood [2006], the court accepted evidence from a scientist who was not directly involved in the case. The rationale was that, as the scientist was able to comment on the general processes of producing a DNA profile, they could provide expert testimony on DNA evidence.
35 The challenge was based on Part 3.2 of the Evidence Act (NSW) 1995, which relates to the hearsay rule (see Chapter 5 for more details). 34 Although the use of computer-based programs has reduced the potential to misinterpret matches between profiles (Walsh, Ribaux, Buckleton, Ross and Roux 2004), some defence lawyers have challenged the reliability of the DNA profiles created from mixed samples (where there are more than one DNA “contributors” in a sample).36 The UK case of R v Brima [2006] and [2007] was concerned with the ability of the laboratory and the expert witness to separate and identify different DNA profiles from a mixture. Under cross-examination the expert could not rule out another contributor to the mixed DNA profile. This appeal was dismissed because other evidence corroborated the suggestion that it was Brima’s DNA. The case highlights the continuing problems presented by using mixed DNA samples at court and the subjectivity associated with declaring matches.
One of the more recent challenges has focused on the validity of the Profiler Plus system, used in Australian laboratories. In the South Australian case of R v Karger [2001] and [2002] the defence challenged the validity of the Profiler Plus system and the ability of the Crown expert to use Profiler Plus.37 Justice Mulligan ruled that as the scientific community developed Profiler Plus, it was a valid system, and the Crown witness had sufficient expertise to use the system. Shortly after Karger [2001], the NSW Supreme Court dealt with two challenges against the introduction of DNA evidence produced by Profiler Plus. In both R v Gallagher [2001] and R v McIntyre [2001] the defence challenged the validity of the tests used to create the DNA profile, and the level of expert knowledge and training a specialist needed in order to present expert testimony. Like Karger, these challenges were rejected. These cases established Profiler Plus as an accurate method of creating DNA profiles.
Population statistics have continued to be a major concern for defence lawyers in admissibility and appeal challenges. Three prominent Australian appeals have
36 It is more difficult to obtain individual DNA profiles from mixed samples because there is more than one contributor to the sample. This means that scientists are required to separate the contributors, which is not always successful and provides less discriminating results. This process is also more time consuming and resource intensive. 37 Profiler Plus is “a general purpose information extraction system” (Social Science Automation 2008) that codes DNA samples that have been analysed by polymerase chain reaction (PCR – see Appendix 2). 35 considered the preferred calculation of population statistics: R v Pantoja (1996), R v Milat (1996) and R v Karger [2002]. The Pantoja ruling emphasised that the statistical evidence could be affected by racial variations and that it must be the offender’s race, and not the suspect’s race, that is important in determining the calculation. This ruling supported the NRC 1996 findings. In Milat, Hunt CJ at CL, used the judgment from Pantoja, and the NRC 1992 and 1996 reports when determining the validity of the size of databases used by the Crown. The Karger judgment also referred to the NRC 1996 report, but ruled that the validity of population statistics was a matter for the jury to determine. All three cases raised concerns about the size of the database used to create likelihood ratios and the significance of racial subgroups, illustrating the continuing problems associated with population statistics.
The NRC’s (1992) concerns about the overwhelming “aura of infallibility” of DNA evidence on members of the jury has been adopted by defence lawyers and judicial officers. The English case of R v Adams [1996] raised concerns about the presentation of statistics to juries and was the first case where the prosecution presented a case based solely upon DNA evidence. The defence argued that the Crown was required to produce evidence corroborating the DNA evidence and that because there was none, the DNA evidence should have been excluded because of its inappropriate impact on the fairness of the trial. On appeal, Lord Justice Rose dismissed these claims and recognised that the trial judge had acknowledged that it was the first case where the Crown had relied exclusively on DNA evidence. In addition, Rose LJ agreed with the trial judge’s decision that “there is no principle of law that DNA evidence is in itself incapable of establishing guilt” (at 469). Rather, the probative effect of DNA evidence depended on the circumstances of a specific case.
One of the problems identified with presenting DNA evidence to juries, was the potential for the statistics to be inaccurately represented by the prosecution or judicial officers. In a number of cases, the statistical probability of a DNA match has been significantly strengthened through the prosecutor’s fallacy. In 1997, the UK case of Doheny and Adams v The Queen [1997] provided a working definition of the prosecutor’s fallacy. The court explained the fallacy in the following terms:
36 1. Only one person in a million will have a DNA profile which matches that of the crime stain.
2. The defendant has a DNA profile which matches the crime stain.
3. Ergo there is a million to one probability that the defendant left the crime stain and is guilty of the crime.
The court’s definition of the prosecutor’s fallacy referred to two distinct problems that were occurring in courts at that time. First, there was a fallacy that a DNA match equated to guilt. As already mentioned, there can be numerous explanations for the presence of DNA material at a crime scene, in addition to the potential for an incorrect match to have been made. The second, which has been more problematic for courts, concerned the issue of misinterpreting the probability of a match. Instead of expressing “a million to one” probability, the correct statement should be “one out of every million people”.
The prosecutor’s fallacy is one of the most important challenges addressed by the courts because it established that DNA could not be taken as proof of guilt, and that the correct presentation of statistics would reduce the power of the evidence. The Doheny and Adams judgment has been used by several Australian appeal decisions when considering the statistical presentation of statistics by prosecutors and judicial officers. In the NSW case of R v Keir [2002], the defence successfully appealed Keir’s conviction because the trial judge failed to identify the prosecutor’s fallacy to the jury. To overcome problems of juries misunderstanding the relevance of DNA evidence and trying to resolve conflicts between experts, Burton (2004: 106) has suggested that juries should receive written information or watch a video that explains DNA evidence.
In R v Wakefield [2004], a NSW appeal, the defence claimed that the police officers interviewing Wakefield had committed the prosecutor’s fallacy when they said to the suspect “that your DNA was found on the handkerchief”. The prosecutor and the judge repeated the fallacy throughout the trial. The appeal was dismissed because this issue
37 was not raised at trial.38 The judges also disagreed with the defence that the prosecutor should have said the sample was consistent with the accused, rather than it was the accused’s DNA. Hodgson JA stated in the Wakefield case, “One in ten billion, one person on the whole earth”, and believed that presenting statistics so large are a “little artificial” and that it essentially means that the DNA does belong to the accused. The defence raised concerns that the statistics should not have been so high because the appellant was Aboriginal (and as such there was a higher chance of the profile belonging to another Indigenous Australian – see the previous section on the debates about ethnic populations).39 However the judges dismissed this argument and the appeal. The suggestion that statistics of one in ten billion can be interpreted as meaning one person on the whole earth counteracts the achievement of establishing the prosecutor’s fallacy and raises questions about the future standards of probability statistics.
The development of new DNA profiling technologies has created new avenues for admissibility and reliability challenges in trial and appeal cases. As the technologies become more sensitive, they become more susceptible to challenges based on contamination. Berryman (2003) has raised concerns about the potential for “carryover” contamination through air conditioners, fans, and staff movement within laboratories. This issue is yet to be addressed by the relevant scientific communities, but has become more important with the introduction of low copy number (LCN – see Appendix Two) technologies because they use minute quantities of biological material that are easily transferable.
Recently, the reliability of LCN test results have been challenged by the UK judiciary. In December 2007 and January 2008, there were prominent news reports of those convicted of the Omagh bombing in the case of The Queen v Hoey [2007] (BBC News 2007a; BBC News 2008). At trial, there were a number of concerns about the reliability of the recovery, packing, storage, and transmission of items by the Army, police, and
38 Hodgson JA referred to it as a ‘tactical decision’ that defence lawyers are required to make when deciding how to treat DNA evidence. 39 This issue is still being addressed. For one of the more recent discussions concerning the difficulties in deriving conclusive statistics for Indigenous Australians see Boettcher (2005). 38 scene of crime officers (SOCOs). In the case, Weir J expressed general concerns about the use of LCN DNA in courts, referring to it as the “LCN DNA Debate” (see Hoey). Overall, the LCN evidence was found to be unreliable and lacking in validity and was excluded from the trial.
In response to these problems, the British Crown Prosecution Service (CPS) suspended the use of LCN DNA evidence in criminal cases while it carried out a “precautionary internal review” of the live prosecutions using the evidence (BBC News 2008). There were no plans to review past cases (BBC News 2007a) despite its use in 21,000 cases in Britain since its development in 1999 (Murdoch 2007). In January 2008, the British CPS reported that the review of cases using LCN DNA had not identified any problems. However, they issued a ‘prosecutor checklist’ for using LCN DNA in the “hope to add confidence and clarity to the issues surrounding this technique” (Crown Prosecution Service 2008: 1).
As a result of the Hoey case, there were substantial concerns in Australia about the use of LCN DNA in the Northern Territory Peter Falconio murder trial, which relied on LCN results to convict Bradley Murdoch (ABC News 2008; Murdoch 2007). The Australian Council for Civil Liberties called for the evidence in the Northern Territory Murdoch trial to be reviewed, with reference to the role that unreliable forensic science had had, in past miscarriages of justice, including the Lindy Chamberlain case (Murdoch 2007). However, as a result of the findings from the British CPS precautionary internal review, the call to re-open the Bradley Murdoch case has been abandoned.
Issues have also been raised in relation to mitochondrial DNA profiling (mtDNA – see Appendix Two). In the Supreme Court of Norfolk Island case, R v McNeill [2007], mitochondrial DNA evidence was ruled inadmissible on the basis that that the expert witness was unable to simplify her presentation of the DNA evidence. Despite the ruling, Weinberg CJ was careful to explain that mitochondrial DNA evidence is a “highly probative forensic tool” (at [157]), thus ensuring its admissibility in other cases.
39 McNeil and Hoey illustrate the continual challenges to DNA evidence in courts despite the marginalisation of the problems raised during the 1990s.
Despite the continuing problems with DNA identification evidence, it is still considered to be a more reliable form of evidence than many other more ‘traditional’ types of evidence. Older forms of evidence such as eyewitness identification, confessions, and forensic analysis (such as handwriting analysis, lie detector tests, bite-mark analysis, hair analysis and blood typing) have been called into question in comparison with the “new ‘gold standard’ of DNA profiling” (Lynch 2003: 93). The increasing number of post-conviction releases based on DNA matches have highlighted the problems with other evidence, and in particular eyewitness identification, and reinforced the belief that DNA profiling is the gold standard that can highlight the problems of older identification techniques. Indeed, in comparison to many of these types of evidence, DNA evidence should be seen as the gold standard because it is more closely scrutinised by the courts and subjected to rigorous scientific debate. However, this scrutiny is needed because there are continuing problems associated with the technology that could lead to incorrect results and false-inclusions.
DNA evidence: A standard forensic technique
The history of forensic identification techniques has shaped how the courts have received and used DNA evidence in the past two decades. The desire to have a tool that can uniquely identify a suspect as a repeat offender, and link them to crime scenes, has ensured the continued use of the technology in investigations and prosecutions. As Bond and Hammond (2008: 1) note, “DNA evidence has become a standard forensic technique for investigating and solving a wide spectrum of crime types”. The resolution of the problems associated with DNA evidence in the early 1990s demonstrated the desire of both the scientific and legal community to have DNA evidence viewed as a reliable and objective tool. The process of resolution itself helped to legitimise the technology in the eyes of the public and criminal justice organisations.
In addition, the use of the technology to exonerate people who were wrongly convicted ensured that it was viewed as tool that could regulate criminal justice organisations and
40 overturn miscarriages of justice. As such, DNA evidence was viewed as a tool that could both prevent miscarriages of justice (by providing reliable and objective information throughout an investigation and prosecution), and correct miscarriages of justice (by exonerating those convicted on less reliable or less objective evidence). The belief that DNA evidence could prevent miscarriages of justice allowed the technology to be perceived as the new gold standard.
The adoption and use of DNA profiling has been influenced by a number of social factors. At the same time, the use of the technology has also influenced social relations and systems. The adoption of DNA profiling into the criminal justice system has established new concerns for court challenges and therefore how criminal justice practitioners are required to use the evidence. The following chapter examines the factors that influence technological change, the fluidity of technological change itself, and how technologies can impact on the people who use it.
41 CHAPTER THREE: UNDERSTANDING THE TRAJECTORY OF DNA TECHNOLOGY
As highlighted by the previous chapter, the adoption and use of DNA profiling has had a substantial impact on criminal investigations and prosecutions. In turn, a number of social processes have affected how the technology has been adopted, refined and used. This chapter draws on the theoretical literature about technological change to understand the emergence and impact of DNA profiling technologies on criminal justice systems.
The role of science and technology in the criminal justice system is an important area of study, because, as Haggerty (2004: 212) stated, the “criminal justice system has itself been altered by new technologies of detection, capture, monitoring and processing”. Numerous authors have examined how new technologies have altered processes within the criminal justice system. In particular, a number of authors have looked at the development of scientific expertise for the courtroom (for example Edmond and Mercer 2004; Cole 2003; Jasanoff 1998), while others have focused on how court rules and legislation concerning technological artefacts have changed over time (Jasanoff 2001; Edmond 2002). Chan (2003), Ericson and Haggerty (1997), and Ericson and Shearing (1986) have also examined the impacts of technology on modern policing organisations.
Technologies contain both physical and social dimensions. The physical element refers to the form of a technology, which includes the technological artefacts and the processes involved in using the technology (Williams and Edge 1996). The social dimension of a technology relates to how it is used within particular contexts and how individuals and organisations attribute meaning to the technology and its products (Bijker 1995; Bijker 2001; Chan 2003). There is a two way process where technology transforms social and organisational life (Manning 2001; Ericson and Shearing 1986; Orlikowski and Gash 1994; Chan 2003), while the technology is also shaped by social structures and cultural factors. These two-way factors make it difficult to control when a
42 technology is adopted, how different organisations and individuals will use the artefact, and the effects it will have on social structures.
The inability to completely control the direction of technology results in intended and unintended impacts. These impacts can be constraining as well as enabling. In many cases technologies are designed to benefit society as a whole (Brey 1997), or perhaps just a particular group. However, there are numerous examples of technologies that regulate people’s behaviour. For Latour (1988), those technologies that we use to delegate tasks actually impose certain behaviours back on us. The example of the automatic door illustrates the way a person’s entry into a room may be regulated by technology (Wise 1998: 411). Organisations can adopt a technology that alters its practices and activities. The duality of the physical and social dimensions of technological artefacts requires an interpretive approach when examining the effects of technological change on social structures, and in particular organisational structures (Chan 2003).
Factors affecting technological change
Chan (2003: 669) identified four factors that have influenced the course of technological change and its impact on policing organisations: global trends, technical design and implementation, political issues, and cultural frames. In addition to these four factors, economic influences are used in this dissertation as a framework to understand the proliferation of DNA profiling and the impacts on criminal justice practitioners.40 This framework will be used in later chapters to examine why DNA technologies were adopted, as well as their effects on criminal justice systems.
Global trends As noted in the previous chapter, science and technology have become a preoccupation for law enforcement agencies over the past century. The development of Bertillonage
40 Proliferation refers to the expansion of a technological artefact. This includes the increased use of a technology in a particular society, as well as the transference of a technological artefact across societies. The term proliferation is commonly associated with biological and nuclear technologies. Early studies of technology viewed proliferation as a product of technical and scientific factors (Flank 1993:262). However, more recent studies have recognised that the proliferation of a technology is also shaped by social, political and economic contexts. 43 and fingerprint identification demonstrated to governments and policing agencies that scientific and technological artefacts could be adopted by criminal justice systems to identify criminal behaviour and offenders.
Changing social patterns made the identification of offenders a primary concern for many governments. In particular, in the 1970s and 1980s a rapid increase in recorded crime was documented in every Western industrialised nation (Garland 2001: 90). The apparent increase in crime, along with media reports, created a heightened level of apprehension within society, which governments responded to with promises of harsher sentences, more incarcerations and more police on the streets (Tham 2001). Political discourse has subsequently changed to the point where crime policy has become an electoral campaign for which the public can later hold politicians accountable (Garland 2001: 13). Garland (2001: 12) examined the concept of risk society in the following way:
Today, there is a new and urgent emphasis upon the need for security, the containment of danger, the identification and management of any kind of risk. Protecting the public has become the dominant theme of penal policy.
A result of the introduction of the risk society was that individuals are becoming more willing to suspend civil liberties to achieve crime minimisation (McCartney 2004). For example, in the Pitchfork case, the men of Narborough Village were prepared to suspend their right to the presumption of innocence to assist the police with their enquiry.
The development of forensic identity databases, such as DNA databases, have been created in “risk” societies to manage the growing fear of crime within communities (McCartney 2004: 165). As Kemshall (2003: 33) outlines:
[Databases] transformed the uncertainty and unpredictability of the dangerous classes into the knowable, calculable and controllable. Indeed the “knowability” of its citizens and hence the knowability of risk is the hallmark of the modern state. Knowability and calculability are essential to risk avoidance and control of risk distribution.
44 The underlying concept of identity databases is that they provide law enforcement agencies with extensive knowledge of who belongs to the criminal population. For Foucault (1980: 52), knowledge engenders power and constantly influences the effects of power. Databases provide the state with knowledge of a suspect or offender; which then provides the state with information that can be linked to future, and unsolved, crimes. Once a person offends, their DNA is collected and loaded onto the database (the person is labelled as a ‘risk’ to society), which enables them to be controlled in the future (Fox 2001; Pugliese 1999). As a result, Foucauldian theories of power, knowledge and control are important when examining current crime control policies, such as surveillance (McCartney 2004: 165).
One of the consequences of using DNA databases as a risk management tool is that it has expanded state power over the citizen. As Gerlach (2004: 8) illustrates, the legitimisation of DNA databases has provided state agents with the right to enter a citizen’s body. This power has fundamentally altered the relationship between the citizen and the state (Corns 1992: 8). Suspects, prisoners and volunteers are expected to provide the state with a DNA sample, despite the legal principles of a right to silence and a presumption of innocence. Where consent is withheld, courts can authorise a sample to be taken with force. The forceful collection of samples undermines fundamental human rights such as the right for privacy and respect for the human body (McCartney 2004: 170), thus changing the power balance between the individual and the state. The government’s authority to collect and retain DNA samples “has been enhanced because the public sees it making progress on the ‘war on crime’” (Gerlach 2004: 8).
The expanded power of the state has led to the discrimination of certain sections of the population and the creation of a ‘suspect society’. A common misconception about databases is that “only the guilty need to worry”. However, in many cases the collection of DNA samples affects certain sections of the population more than others, including the innocent (McCartney 2004: 167). For example, volunteers in a mass screen automatically become categorised as ‘suspicious’ by virtue of being in a certain geographical area at a particular time. The state has increased power over its citizens, as
45 people are required to provide a sample to prove their innocence. As a result, DNA databases have implications for notions of “privacy” and “freedom” in society (McCartney 2004: 169).
The emergence of risk society has been made possible by a number of technological advancements, which have allowed law enforcement agencies to respond to increasing crime rates in new ways (Chan 2003). For example, the introduction of the automobile, enabled police to become more reactive and patrol more streets in an effort to deter offenders (Garland 2001: 92). In addition, technology has allowed the police and courts to target a large number of individuals more efficiently and effectively through information management technologies, such as Computerised Operational Policing System (COPS) in NSW and the Home Office Large Major Enquiry System (HOLMES) in the UK.
The increased crime rates resulted in what Garland (2001) termed, the professionalisation and commercialisation of justice. At the same time that crime levels were increasing and placing strain on the resources and staff of criminal justice agencies, there were numerous allegations of police corruption around the world. Consequently, governments wanted to professionalise staff within the criminal justice system, and particularly the police, and commercialise justice so that it could cope with the increased workload. One of the methods used to professionalise the police was the introduction of new technologies and management systems that could hold officers accountable for their decisions (Chan 2003), such as surveillance systems within an interview room. The adoption of these technologies was designed to allay public concerns about police corruption and misuse of power and have now become standard features of police operations internationally.
The commercialisation of justice occurred in the 1980s when the UK and US restructured the processes of investigations according to a business management ethos (Garland 2001: 116). This re-organisation included the introduction of performance indicators to measure both individual and organisational productivity, devolved budgets, strategic planning and financial responsibility within the agencies.
46 Consequently, new technologies were justified on the grounds of enhancing performance indicators and the productivity of the organisation. Privatisation has been one of the many consequences of the commercialisation of justice, and has changed some of the functions of criminal justice and reallocated responsibility away from the state to private companies (Garland 2001).
Economic factors Layton (1977) referred to two broad categories of market change influencing the direction of technology; namely demand-pull and discovery-push (which will be discussed in the following section).41 The demand-pull model suggests that technologies arise out of a need or a deficiency in the market. Technologies are thus adopted to meet a need (Arthur 1999).
Economic theories can be used to explain why institutions adopt and use a technological artefact as a business solution. As MacKenzie (1992) argued, a business will choose a technology that will maximise their rate of profit and efficiency while supporting their existing policies. For example, in 1954, the US Ford company introduced automation into its new Ohio plant, which displaced hundreds of workers from the Detroit plant (this was closed with the opening of the Ohio plant). According to Sugrue (1998: 131):
Despite these occasional benefits, automation was primarily a weapon in the employers’ antilabor arsenal. Through automation, employers attempted to reassert control over industrial process, chipping away at the control over production that workers had gained through intricately negotiated work rules.
In this example, the motivation for developing and adopting automation was to weaken the power of unions and workers. Vergragt, Groenewegen and Mulder (1992) identified three dimensions, which determine the opportunities and constraints placed upon a business, institution, or law enforcement agency, when choosing a technology. The first is the level of knowledge about the technology itself. The second refers to the organisational structure of a business, more specifically if the information gathering,
41 Dosi (1982) believes, however, that in practice these two terms do not have clear-cut distinctions. 47 dissemination structures are sufficiently developed to support a technology (Vergragt et al 1992). The third is the external dimension, which includes consumers, legislative requirements and competition. An organisation needs to consider all these dimensions before it adopts a technology.
Economic factors have ongoing effects on how technologies are used and disseminated. For example, some technologies are owned and controlled by governments, while others are privatised. The privatisation of a technology can have a number of consequences (Sugrue 1998). For example, privatisation can mean less, or more, regulation of the use of a technology and the introduction of a fee-based service. Daemmrich (1998) examined the re-structure of DNA profiling as a business. Specifically:
By performing criminal identity testing as a fee-based service, these companies are contributing to a move away from state monopoly in the analysis and control of crime- scene evidence (Daemmrich 1998: 743).
Daemmrich (1998) used the term vertical integration to describe the business organisation structure of DNA profiling as a consumer product. Although Daemmrich’s (1998) focus was on the production of expert evidence and the problems that privatisation could create for expert evidence, he raised a number of important points concerning the general privatisation of laboratories. For example, a privatised laboratory may have the additional pressure of supporting their client’s position within court (Daemmrich 1998).
One limitation in the adoption of an economic model in genetic technologies, such as DNA profiling, is that profit may be an insufficient reason to develop a technology. Economic theorists emphasise that profit and market forces drive technological discovery and trajectories. However, as Lassen and Jamison (2006: 21) note, there is a general preference for governments to adopt genetic technologies that have a “noble” objective (rather than introducing a technology for economic gain), because it is more likely to receive support from institutions and the public. Consequently, there will be less resistance to the adoption of “noble” technologies. Some of the noble causes
48 publicised include: medical and genetic research; immigration cases where DNA has allowed a person to enter a country; the use of forensic DNA in the investigation of crimes; and the use of DNA in paternity suits. When forensic DNA profiling was first introduced into the US legal system, it was not primarily an economic commodity; rather, it was viewed as a law enforcement tool which the FBI provided free for police forces within the US and internationally (this service is no longer free).
Technical design and implementation One of the criticisms of social scientists prior to the 1990s was that researchers tended to overlook differences between technologies when investigating the social impacts of technological innovation (Williams and Edge 1996: 868). Fleck, Webster, and Williams (1990) believe that most researchers treated technology, such as computer numerical control, as being comparable with other forms of technology, instead of recognising that each technology had a different design and implementation process. It is important to distinguish between technologies, because as Chan (2003: 670) stated, “technological change can have a large or small impact on organisations depending on the nature and design of the technology and the way in which technological change is managed”. Technologies, such as computerised information systems, will have a greater impact on an organisation than the choice of a keyboard design. The design, ease of use, cost, and the reported results of a technology will affect an organisation’s decision to adopt one technological artefact over another.
The availability of a technology will depend upon its discovery or creation. Discovery- push, also known as technological push (Dosi 1982), places emphasis on scientific and technological innovation. The emergence of forensic DNA typing followed a discovery- push model, which has shaped the trajectory (or direction) of forensic DNA profiling over the past two decades. Both the structure of DNA and the original forensic applications of DNA profiling were discovered through non-commissioned research. Jeffreys accidentally discovered that DNA was a unique identifier while he was involved in a separate project on genes (Jeffreys 2004; Wambaugh 1989). The forensic potential of DNA was gradually appreciated after Jeffreys publicly announced that it could identify a person through a biological trace. Once Jeffreys had defined and
49 demonstrated the use of forensic DNA, it was then open to appropriation as a demand- pull technology. This change has affected the trajectory of forensic DNA technology. As this technology was a serendipitous discovery, rather than developed for a specific market, it was originally resource intensive. At this time, only one laboratory in England had the capacity to perform tests. Now, there are three main private companies in England that provide commercial forensic tests (each company owns several different laboratories across the country).
As a result of the commercialisation of justice, criminal justice organisations assess new technologies on the basis of what they can achieve and the ease in which they can be used by individuals. In Northrop, Kraemer and King’s (1995) survey of US police officers, they reported that police officers wanted technologies that were both user friendly and had technical stability. Despite this, the most effective design is not always chosen. For example, the QWERTY keyboard was, and still is, not the most conducive way to order the alphabet, yet its mechanically inflected orientation has dominated keyboard designs in many countries.42 The criminal justice system measures the results of a technology, in part, on the basis of its effectiveness and efficiency.
Apart from user friendliness and the stability of performance, the decision about whether to adopt and implement a technology is influenced by available resources, institutional, and political support. The political and institutional environment is intertwined with decisions about what technologies are adopted and how they are used (Bijker 2001: 22). Bijker (2001) referred to this process as the politicizing of technological culture. Institutional support for a technology ensures that it will receive sufficient funding and structural support, such as legislation and sponsored training, to assure its routine use and expansion. A lack of institutional support restricts the likelihood of the adoption or development of a technology. An example of this occurred with fingerprinting in the late nineteenth century, where the British government was unwilling to support its introduction into the police or prison systems.
42 The QWERTY keyboard was designed at a time when mechanical typewriters were unable to cope with the speed of typists. As such, the design of QWERTY was intended to decrease the speed of typists. 50
Technologies can also be transferred from one jurisdiction to another. The process of technology transfer refers to the:
Transfer of a systematically developed set of organized information, skills, rights, and services from a supplier organization located in a developed country … to a recipient organization located in a developing country (Kedia and Bhagat 1988: 561).
For Kedia and Bhagat (1988), the concept of developed and developing countries is an important distinction because of the varying levels of congruence between social and institutional structures. Countries that have similar social and legislative structures are more likely to be able to use technologies in a similar manner because they have the same expectations of the technology. Two main concepts from Kedia and Bhagat’s (1988) model suggest that process embodiment (the technological process required to use the technology), product embodiment (the design of the artefact), and person embodiment (how people use and understand the technology), need to be similar across cultures before a technological artefact will be successfully transferred.43
The transfer of a technological artefact across countries will be more successful where the donor and recipient have similar practices and structures, such as police forces in the UK and Australia. Where there are differences between countries, or organisations, it becomes increasingly difficult to successfully transfer the processes associated with using the technology. This difficulty emerges because the recipient organisation is likely to change the processes and understandings associated with the technology to suit its own needs. Technologies that can be successfully transferred are those that are easily changed (or adapted) to suit the needs of the recipient country or organisation. In these cases, the fundamental technological process remains unchanged, while the way that they are used can be altered to suit the need of the users.
Differences in the design of a technology will also affect its ability to be transferred across from one area to another. In the case of DNA technologies, new processes and
43 A successful transfer occurs when the recipient country or organisation adopts the original processes and objectives associated with the technology (Jasanoff 2002). 51 equipment were created so that DNA profiles could be transferred more easily between laboratories and across jurisdictions. When forensic DNA profiling was first used, the profiles created from single locus probes (SLP) and multi locus probes (MLP) were unclear and there was disagreement between laboratories on how they should be interpreted. This disagreement and the subjectivity of declaring a match meant that laboratories could not compare results or upload the profiles onto a database, which was an aim of forensic laboratories and investigations (Wall 2005a: 45). As a result, short tandem repeats (STR) and polymerase chain reaction (PCR) technologies were generally preferred so that profiles could be transferred between laboratories and jurisdictions (see Appendix Two for more information on these technologies). The implementation of these two technologies occurred in the mid to late 1990s, and are now standard technologies used by forensic laboratories.
The adoption and use of new technologies are constrained by issues of availability, legal requirements, precedents and their utility and limitations. Specifically, the differences in legislation across jurisdictions will affect which techniques are adopted, how they are used, the ensuing consequences, and how the technology and its results are presented. Ruggie (1975: 567) stated that:
These differences stem from different domestic structures, differential access to policy making of scientific, commercial and other groups, and differences in the extent to which a national policy actually exists in a given field.
The technology may be adopted in a manner that reflects the needs and objectives of the government, or organisation. Consequently, as the norms and objectives of one state are not necessarily shared by another state,44 the adoption of a technology will vary between jurisdictions.
Political issues Technologies have a political dimension that will influence how they are adopted and used. Technological artefacts can shift power balances within an organisation by
44 Some authors argue that it is impossible to transfer a legal culture to another country. See Legrand (2001) for further discussion. 52 altering communication patterns and the division of labour (Manning 1996: 54). Technologies also have the potential to shift power balances across organisations and introduce new organisations into an area such as the criminal justice system. For example, the introduction of forensic science has meant that scientists have now become an integral part of the investigative and judicial process. As Orlikowski and Robey (1991) and Chan (2003) noted, information is in itself a source of power that can be used to maintain social structures.
Scientific and technological developments provide organisations and individuals with power because technological artefacts are perceived as objective and value-free (Bijker 2001: 21). This makes them desirable for organisations, such as the police, seeking professionalisation. As Ericson and Shearing (1986: 133) argued, technologies give organisations, such as the police, the general warrant to say that “because we are doing things the scientific way, we are doing them the right way and you have no legitimate grounds for criticism”.
A number of groups, including scientists, participate in this process of legitimising technological artefacts. In legal systems, judicial officers and lawyers participate in legitimising technology through the ability to exclude, or refine, a technology through admissibility rulings and cross-examination. Scientists have become key players in the process of administering justice in modern courts, in their role as expert witnesses. As Edmond and Mercer (2004: 4) state “courts continue to play an important role in the recognition, legitimation, and status of different forms of expertise” (original emphasis). The courts maintain the power balance of experts by specifying who can present scientific evidence. The specialist nature of DNA profiling adds to the perception that it is objective and scientifically rigorous.
Although the public does not directly determine which technologies are adopted or used, they participate in the process of legitimising technologies. As mentioned in the previous section, the public have become more involved in the process of crime control in modern Western nations and thus have more power in the process of crime control. Part of this change has involved the need to ensure public support of technologies that
53 may deprive people of individual rights, such as DNA profiling or fingerprinting. Politicians and policy makers often respond to, or take advantage of, public concerns that surround an emerging technology, and use that information to enhance the power of the political regime. For Jasanoff (2002: 258), “knowing when and how to deploy science and technology publicly has become an important dimension of tacit political knowledge”. Scientists and politicians need to convince the public that a new technology is “safe, beneficial, necessary, and even inevitable” (Gerlach 2004: 7). Otherwise, the technology may not be accepted or developed and it will become closed for future use (this term will be discussed later in the chapter). One of the reasons the public has accepted identification technologies such as fingerprinting and DNA profiling is that it is only used to target offenders or to identify missing persons.
In addition to power balances, the adoption and use of technologies requires negotiation and accommodation of different interests, practices and actions. Lassen and Jamison (2006: 10) referred to the process that different actors go through to adopt and use technological artefacts as social discourses. Bijker (1995) examined the role that different actors had on the process of adopting a bicycle design. Specifically, Bijker (1995) illustrated the various negotiations that took place when developing the bicycle and demonstrated why a number of bicycle technological designs were developed and adopted by different groups within a community. On a larger scale, governments are required to negotiate the use of new technologies with numerous agencies and constituencies. For example, when passing new criminal legislation the government is obliged to balance the rights of the individual with the need to maintain social order. To achieve balance, they negotiate the advice from agencies and stakeholders to try to accommodate the different interests.
Technologies can be used to reinforce existing power balances within social structures. Jasanoff (2002: 258) contended that:
Technologies … are never developed in morally neutral spaces but are conceived and deployed within previous configurations of wealth and authority. Existing hierarchies reinscribe themselves with the aid of new instruments …
54 Class biases can often be perpetrated through the design and implementation of a technology. For example, Winner (1999) claimed that the bridges built on Long Island, New York, are an example of the politicisation of technology.45 For Winner (1999: 30) the bridge design reinforced class structures and discrimination against minority groups:
Poor people and blacks, who normally used public transit, were kept off the roads because the twelve-foot tall buses could not get through the overpass. One consequence was to limit access of racial minorities and low-income groups to Jones Beach, Moses’s widely acclaimed public park. Moses made doubly sure of this result by vetoing a proposed extension of the Long Island Railroad to Jones Beach.
In this scenario the designer of the bridges reinforced social hierarchy by catering for the middle classes rather than ensuring that all people could reach Jones Beach. In addition, many technologies are not accessible to the working classes because of the costs associated with either purchasing or using the technology.
Cultural frames Technologies are not objective; rather they are given meaning by developers and users. Orlikowski and Gash (1994: 174) established a “systematic approach for examining the underlying assumptions, expectations, and knowledge that people have about technology” known as technological frames. For Bijker (2001: 27):
The concept of “technological frame” forms a hinge in the analysis of socio-technical ensembles: it sets the way in which technology influences interaction and thus shapes specific cultures, but it also explains how a new technology is constructed by a combination of enabling and constraining interactions within relevant social groups in a specific way.
Thus, technological frames can be used as a way to understand how actors interact with, and give meaning to, technologies (Bijker 1995).
45 In recent years the validity of Winner’s (1999) claims has been challenged with claims that bus services can access Jones Beach. However, it is unclear whether Winner (1999) misinterpreted the designs of the bridges, if the actual design was altered, or if newer buses and newer designs now allow access. For a further discussion see Woolgar and Cooper (1999). 55 Technological frames allow an individual to use and understand a technology. There can be congruence or incongruence in the technological frames held within or across groups. As Chan (2003: 672) noted, “where incongruent technological frames exist, the introduction of technology is likely to encounter conflicts and difficulties” as groups disagree about the meaning and role of the technology.
One effect of technological frames is that they constrain and limit understanding (Orlikowski and Gash 1994). Where there is congruence, or an acceptance of the technology, problems associated with the technology can become obscured or hidden. Latour (1987) believed that actors contribute to this process by reinforcing the arguments given to them and not questioning their use of a technology.
Orlikowski and Gash’s (1994: 183-84) three domains of technological frames provide a useful way to analyse a social group’s understanding and use of a technology. The three domains are:
1. Nature of Technology – refers to people’s images of the technology and their understanding of its capabilities and functionality.
2. Technology Strategy – refers to people’s views of why their organisation acquired and implemented the technology. It includes their understanding of the motivation or vision behind the adoption decision and its likely value to the organisation.
3. Technology in Use – refers to people’s understanding of how the technology will be used on a day-to-day basis and the likely or actual conditions and consequences associated with such use.
According to Orlikowski and Gash (1994: 179), technologies are social artefacts that “embody their sponsors’ and developers’ objectives, values, interests, and knowledge of that technology”. Consequently, the three domains are useful when comparing how different social groups understand and use a technology.
The first domain of Orlikowski and Gash’s (1994) theory focuses on the level of knowledge that people possess about a technology. Levels of understanding will affect technological frames, and the way people perceive technology. That is, to what extent 56 do individuals understand the capabilities and functions of the technology? The level of knowledge that an individual has about a technology will shape how they use it (Bijker 1995). For Orlikowski and Gash (1994: 175), “an understanding of people’s interpretations of a technology is critical to understanding their interaction with it”.
The second domain examines the influences of organisational values upon an individual. The technological strategy of an organisation shapes how and why a technology is acquired and implemented. This strategy, in turn shapes how employees use and understand a technological artefact. Technology strategy creates a level of congruence about the perceived value of a technology within an organisation because employees use the technology in the same way and with the same expectations. However, the perceived value of a technology will differ across organisations with different values.
For Orlikowski and Gash (1994: 188), one of the important aspects of using a technology is to “know enough about it so as to appropriate and manipulate it effectively”. DNA technology in use focuses on the level of training and education that individuals receive so that they can use the technology. The level of education or training can account for some of the differences in technological frames between individuals and across practitioner groups.
Herbert A Simon’s (1955) concept of satisficing provides a useful way to understand why some individuals have a deeper or shallower understanding of a technology. Simon coined the term satisficing to reconcile the differences between rational and non- rational aspects of human behaviour in social settings and organisations (Simon 1957: vii). Satisficing refers to the relationship that occurs between “satisfactions” and “goal attainments” when choosing between the options available and the potential benefits of these options (Simon 1955: 100), or more simply the process of finding a “course of action that is ‘good enough’” (Simon 1957: 205). Individuals will choose a level of information or familiarity that ‘satisfies’ their immediate needs and balances, according to what is expected of them from an organisation. Consequently, the practice of
57 satisficing affects how individuals and groups behave, and how they “should” behave to achieve the best results for an organisation (Simon 1955: 99).
Simon (1955: 1957) rejected the notion that the “rational economic man” will choose an action based on rational external circumstances. Instead, Simon (1957) develops the principle of bounded rationality to incorporate the psychological characteristics of the “economic man”. The principle of bounded rationality states that unless the alternatives are initially provided to the decision maker, individuals cannot research every alternative available to them because there are too many options available (Simon 1979: 502). Instead, the new economic person is driven by their level of interest in an area and how much research they are willing to conduct in their search for the optimal or “good enough” solution.
The principle of bounded rationality identifies three main constraints to the process of rational decision making:
1. The set of alternatives open to choice
2. The relationships that determine the pay-offs (“satisfactions”, “goal attainment”) as a function of the alternative that is chosen, and
3. The performance orderings of pay-offs (Simon 1955: 100).
Essentially, an individual will choose a level of information that is satisfactory and optimal for decision-making, within the above constraints. For each choice, the individual must judge “that the information is good enough to satisfy a need even though the full cost-benefit analysis has not been performed” (Prabha, Connaway, Olszewski and Jenkins 2007: 76). The options are viewed as a scale in terms of what degree of satisfaction they will have and whether it is acceptable for the goal (Schwartz, Ward, Monterosso, Lyubomirsky, White and Lehman 2002: 1178).
Studies of professionals and consumers suggest that satisficing is a useful theoretical construct (Schwartz et al 2002; Leckie, Pettigrew and Sylvain 1996). The literature suggests that although individuals use a rational process to make decisions, they will
58 also rely on psychological elements, such as their basic level of knowledge and what they believe they require when making a decision. These two psychological components cannot be removed from the process of decision-making, even if the solution fails or is subsequently updated.
Using similar ideas to Simon’s (1955) concept of satisficing, Leckie et al (1996) used research on how engineers, health care professionals and lawyers gathered information to propose a model for information-seeking processes. The model emphasised the relationship between assessing the need for information with the source of information and the likely outcome. Leckie et al (1996: 183-184) found that:
Professionals seek information from an endless number of sources, such as colleagues, librarians, handbooks, journal articles, and their own personal knowledge and experience. These sources of information can be broadly characterized by types of channel or formats, including formal (for example, a conference, a journal) or informal (for example, conversation); internal or external (source within organization or outside); oral or written … and personal (own knowledge and experience, professional practices).
In the case of lawyers, Leckie et al (1996: 185) found that they tended to use notes from previous cases as well as easily accessible resources that were available, either immediately or within a short period of time. They ignored other potential sources because it was deemed to be an inefficient use of their time and energies. There is little information on how criminal justice practitioners gather knowledge on DNA evidence, and how their level of knowledge has affected their use of the technology. However, based on Leckie et al’s (1996) findings, it is likely that lawyers will use information from past cases as well as immediate and easily accessible resources. These issues will be explored in Chapters Eight and Ten.
The fluidity of technological change
Technologies are socially shaped along with their meanings, functions, and domains and use. Thus, they cannot come into existence simply to fill a pre-existing role, since the role itself is co-created with the technology by its makers and users. More importantly, this role is not a static function but something that can change over time for groups of people (Sterne 2003: 373). 59 Technologies are not created, adopted, or used in a value-neutral environment. Technological change is fluid; it is constantly changing as designs and social factors shift. In some cases, new technologies have evolved from existing technological artefacts through a process of incremental change (Wajcman 1994) or have been based on similar concepts (Williams and Edge 1996).
Technological artefacts can become closed, (this process can include black-boxing a technology) by different social groups. As Bijker (1995: 86) argued:
Closure, in the analysis of technology, means that the interpretative flexibility of an artefact diminishes. Consensus among the different relevant social groups about the dominant meaning of an artefact emerges and the “pluralism of artefacts” decreases.
The process of closure, according to Bijker (1995), is a process that involves a consensus about the meaning of a technology between all relevant social groups.46 As Bijker (1995) noted, a technology needs to be ‘closed’ before it can be routinely used. Once closure has been accomplished the technology design stabilises into a form that can be routinely used by most social groups, although the technology may remain fluid and be further developed.
Once social groups have chosen a particular design and form of a technology - and the technology no longer poses a problem to any significant social group - the design process will be closed (Klein and Kleinman 2002: 30). Bijker (1995) argued that particular designs are chosen because they work for social groups. The limitation with Bijker’s (1995) argument is that invariably, one or more social groups will have conflicting interests and thus be excluded from the design process.
According to Hård (1994), black-boxing is the most common form of closure. Black- boxing refers to the process of turning knowledge into a form, in which, it is readily
46 There are several different types of closure. Social constructivists, like Bijker (1995) argue that closure is achieved when there is a level of consensus between the relevant social groups. A second type of closure is rhetoric closure which occurs when one social group perceives that a problem is solved (Misa 1992). Pinch and Bijker (1987) provide a third form of closure, which is closure by redefinition. Another form of closure is referred to as black-boxing.
60 accepted and used on a regular basis as a non-problematic fact. A black-box hides the unstable and contingent elements of a technology. Once an artefact has been black- boxed it does not require any specialised knowledge to use it (although specialised knowledge is required to solve any problems with the artefact), thus making it accessible to the wider population. The process of black-boxing does not require a consensus of opinion between all relevant social groups (Yonay 1994). Black-boxing causes the technology to become disassociated with its unstable past so that it can be used unquestionably in a specific context (Lynch 1998). As a consequence, actors aim to close a technological artefact as quickly as possible with terms favourable to their needs. As shown in the previous chapter, scientists were largely successful in black- boxing DNA profiling during the early 1990s. As the technologies have largely become black-boxed, DNA testing has become widely accepted as reliable and accurate by the criminal justice system.
The legitimating power of technology
The study of technologies, such as DNA profiling, are becoming increasingly important as more aspects of social life become influenced by technological artefacts. Technologies, such as DNA profiling, are becoming more important in political campaigns (such as law and order debates) and as such are becoming more widely known and used outside of the scientific community. DNA profiling has had a significant impact on a number of social processes - such as criminal justice cases and paternity suits – and, in some cases, it is changing the expected standards of juries or judicial officers (this will be discussed in Chapter Six).
The acceptance of DNA profiling into paternity, immigration and forensic cases illustrates the versatility of the technology and how the objectives of the technique can be adopted and manipulated to suit different needs. The underlying need in each of these cases (paternity, immigration, and forensic casework) has been the desire to attribute scientific objectivity to the processes and outcomes involved in making legal determinations. Indeed, DNA evidence has been used as a risk management tool to legitimise and professionalise the actions of criminal justice practitioners.
61 The following chapter examines the methodological design for the study, which provides evidence to suggest that DNA profiling has had a considerable impact on criminal justice systems and the practitioners within it.
62 CHAPTER FOUR: METHODOLOGY
The existing literature on the role and impact of DNA profiling on society is broad in scope. However, as Briody (2002) argued, there have been relatively few empirical studies in Australia or even internationally on the role DNA evidence plays in criminal cases. The research that forms the basis for this study examines how DNA profiling has impacted upon criminal justice systems. In particular, this research examines criminal justice practitioners’ experiences with, and perceptions of, DNA evidence. The main research questions addressed are as follows: 1. What accounts for the proliferation in the use of DNA profiling by criminal justice practitioners in recent years? 2. How has DNA profiling affected the way the criminal justice system operates? 3. Does the impact of DNA evidence vary with the type of offence? 4. Does its impact vary according to legal and historical contexts? 5. Does the use of DNA profiling lead to unintended consequences? 6. What are the theoretical implications of this study for understanding technological change in the criminal justice system?
Research design
There are numerous ways of conducting social science research. Yin (1994: 1) suggested that the strategy employed by a study would depend upon three conditions:
a. the type of research question,
b. the control an investigator has over actual behavioural events, and
c. the focus on contemporary as opposed to historical phenomena.
As a result of a consideration of these conditions, a comparative case study approach was chosen as the appropriate strategy to study DNA profiling in a forensic setting. The case study approach is most appropriate for answering the “how and why” research questions in a contemporary setting over which the researcher has no control over (Yin 1994). The two sites are New South Wales (NSW) and Thames Valley (UK). In both
63 NSW and the Thames Valley eight main groups were identified as important participants that have been affected by the introduction of forensic DNA profiling. These groups included the police, forensic scientists, scene of crime officers (SOCOs), prosecutors, defence lawyers, judicial officers, victims, and prisoners. In NSW, six of these eight groups participated in this study. 47 Only three groups participated in the Thames Valley.48
According to Pakes (2004), many benefits flow from comparative research. For example, this comparative study can help determine the relationship and extent of similarities between NSW and the Thames Valley. Debates, decision-making and developments in one criminal justice system can often inform or influence another justice system (Pakes 2004). A comparative study allows these issues to be examined, as well as identifying the specific differences between criminal justice systems (Pakes 2004: 4).
As this study focuses on the social impacts of DNA evidence on the criminal justice system - and how it has changed the processes involved in investigations and prosecutions - it was important to adopt a qualitative design. A qualitative approach:
... has the purpose of helping the investigators to interpret and understand, first, the actors’ reasons for social action, second, the way they construct their lives and the meanings they attach to them, and third, the social context of social action (Sarantakos 2005: 42).
Similarly, Silverman and Marvasti (2008: 9) suggest that qualitative methods should be favoured when exploring people’s behaviour and experiences. Qualitative research provides meaning to current practices and social structures by examining how people construct reality. Constructing reality means “making accounts of the world around us and gaining impressions based on culturally defined and historically situated
47 Although the experiences and opinions of victims are paramount in understanding the impacts of DNA profiling on the criminal justice system, the researcher had insufficient qualifications to interview victims. Another important group, prisoners, was excluded because of the difficulty related to gaining access. 48 The researcher was unable to obtain access to judicial officers, lawyers, victims and prisoners. These issues will be discussed in more detail later in this chapter. 64 interpretations and personal experiences (Sarantakos 2005: 37). For most people, reality is not an objective truth. Instead, people construct their own realities through their interpretations of situations that are affected by their beliefs and experiences. By examining different criminal justice practitioner’s perspectives and experiences, this thesis describes their views on how, and why, DNA profiling was adopted and implemented.
The impacts of DNA evidence on the criminal justice system can be measured through quantitative methods. For example, the number of identifications that DNA evidence has achieved can be examined by looking at police records and the number of hits on a DNA database. These types of statistics provide a useful measure when assessing the statistical impacts of DNA profiling on the criminal justice system. As such, this research does use some statistics to measure the widespread use of the technology. However, the main focus of this thesis is on the social impacts of the technology, such as how criminal justice practitioners use DNA evidence, which cannot be adequately measured by quantitative tools.
Using a case study approach, this research examines the current developments and impacts of DNA evidence. The main research technique employed was face-to-face interviews with criminal justice practitioners. In addition, secondary material such as judgments, government reports, and official police statistics were considered. Through using a mixed-method approach, the researcher was able to explore the research questions through a number of different sources (Sarantakos 2005). This research design drew on methods used in a number of studies on DNA profiling in the criminal justice system (Home Office 2006b; Briody 2002; Briody 2005a; Gerlach 2004; Purcell, Winfree and Mays 1994; Davies 1999; Taupin 1994; Wilson 2004; NSW Ombudsman 2006).
The two sites, NSW and the Thames Valley, were selected for different reasons. New South Wales was selected because the NSW Police Service is Australia’s largest and oldest police force and because it is the researcher’s home jurisdiction. As the United Kingdom was the first country to use DNA evidence and implement legislation
65 governing its use, it was chosen to examine how DNA profiling was developed. The UK was also chosen because the NSW Police have claimed that they looked at the UK model when first implementing the technology (see Chapter One). The Thames Valley region was selected because it was a large region within the UK, with a strong forensic DNA background. As it has a strong forensic background it provides a useful comparison point to examine how effectively NSW uses DNA evidence in criminal investigations and prosecutions.
Comparing New South Wales to the Thames Valley There are a number of similarities between the NSW and the Thames Valley jurisdictions. NSW has the largest police force in Australia, with 14,500 police officers in 2006, and the Thames Valley has the largest non-metropolitan police force in the UK, with 4,117 police officers in 2008. As Table One illustrates, both jurisdictions cover large rural areas with a number of towns or cities, which have a high number of transient populations. These areas are similar because they both have a number of police stations within a Command area, and both have a high transient population. NSW has a considerably larger area mass than the Thames Valley (see Figures One, Two and Three), which accounts for the difference between the number of local area commands (LACs) in NSW and basic command units (BCUs) in the Thames Valley.
In both case studies, the criminal justice practitioners interviewed mainly worked in the more urban areas, such as Sydney and Oxfordshire. One reason for this was the limited ability for the researcher to travel around both areas. The level of forensic services differs considerably between rural and urban areas in both NSW and the Thames Valley. Urban areas have more resources and easier access to laboratory facilities. As such, this thesis does not represent the complete status of both geographical areas. The issues discussed in this thesis relate to the experiences of criminal justice practitioners who work within a metropolitan area.49
49 There was one exception to this in NSW, were a prosecutor traveled to Sydney on casework and was able to be interviewed. This interview highlighted the gaps in resources in rural areas, and in particular the inaccessibility of the state laboratory to send experts to rural areas to provide evidence at trial. 66 TABLE ONE: COMPARING NSW AND THAMES VALLEY JURISDICTIONS NSW Thames Valley Population Static 6.8 million 2.1 million Visiting 7.2 million50 6 million51 Geographical area 809,444 km 2,200 km Police Established 1862 – oldest in Australia 196854
Employees 18,000 employees; 14,500 sworn 4,165 police officers; 3,150 police staff; officers.52 360 special constables; 135 police The largest police force in community support officers (PCSOs). Australia. The largest non-metropolitan police force in the UK.55
Budget $2.05 billion 2005/0653. £252.131 million 2001/02. The Thames Valley Police are one of the lowest funded police forces in the UK per 1,000 population.56
Areas covered 80 local area commands (LACs). 5 basic command units (BCUs) – Oxfordshire, Milton Keynes, Berkshire West, Berkshire East, and Buckinghamshire. Scene of Crime Officers (SOCOs) Status Civilian Civilians
Number Unknown 71 SOCOs in 2006
Crime type Always volume crime Always major crime Some major crime Most volume crime Laboratories Number Three Three
Owned by One State laboratory, one Police Two private laboratories and the Laboratory, and one private. Forensic Science Services (FSS) laboratory.
Employees State laboratory - less than 100 Privatised laboratory – 1,000 employees employees Privatised laboratory – 500 employees Police laboratory – unknown FSS – unknown
50 Tourism NSW (2007). 51 Thames Valley Police (2008a). 52 NSW Police (2006). 53 NSW Police (2006). 54 In 1773, Newbury Borough Police are thought to be the first police service in the Thames Valley region (Thames Valley Police 2008b). Between 1876 and 1947, the force was amalgamated with surrounding forces and became known as the Berkshire Constabulary. In 1968 the Thames Valley Police was formally created (Thames Valley Police 2008b). 55 Thames Valley Police (2008a). 56 Her Majesty’s Inspectorate Constabulary (HMIC) (2002). 67
FIGURE ONE: AUSTRALIA - NSW
Source: Defence Reserves 2008
FIGURE TWO: UNITED KINGDOM – THAMES VALLEY
Source: Association of Police Authorities Limited 2005
68
FIGURE THREE: COMPARISON OF AUSTRALIA AND THE UNITED KINGDOM
Source: Geoscience Australia 2005
Interviews In order to assess how DNA profiling has impacted upon the criminal justice system, it is necessary to interview those people involved in the process. Bijker (1995) noted that an artefact is given meaning by groups, and as such an artefact can have multiple meanings for different groups. Interviews present the researcher with an opportunity to explore and uncover some of the situational meanings attached to DNA profiling. As these meanings will affect the decision-making processes of the individual, these views should be canvassed to understand the way organisations use DNA and how DNA evidence has changed the nature of the criminal justice institution.
Face-to-face interviews were conducted with forty-nine criminal justice practitioners in NSW (32 respondents) and the Thames Valley (17 respondents). The interviews were designed to elicit information on how much respondents understood DNA profiling and
69 how they used it in their day-to-day work. They were also used to determine how criminal justice practitioners perceive the broader social implications of DNA evidence. All of the interviews were conducted at the participants’ place of work. Most interviews were audio-recorded and transcribed. Two participants from the Thames Valley Police Service refused to be audio-recorded because of instructions from superiors. In these two cases, the transcription of interviews was based on the interviewer’s notes.
The process of interviewing criminal justice practitioners was affected by a number of factors, including some practitioner’s reluctance to participate, the need to reschedule interviews, and difficulty in organising appropriate times. In NSW, thirty-two interviews (see Table Two) were conducted between February 2006 and March 2007. The interview duration varied between twenty and ninety minutes depending on the willingness of the practitioner to speak; how much knowledge a participant had of DNA evidence; and how much time the participant had.
TABLE TWO: NSW PARTICIPANTS Organisation Code of Interviewee Number of participants Police NSWP 5 Government Laboratory Scientists NSWGS 5 Prosecutors NSWDPP 5 Public Defenders NSWD 2 Defence Lawyers NSWD 3 Local Court Magistrate NSWJO 1 District Court Judge NSWJO 2 Supreme Court Judge NSWJO 4 Scene of Crime Officers NSWSOCO 5 TOTAL 32
The Thames Valley interviews were conducted in September 2006 in the Oxfordshire region and the duration ranged from thirty to seventy minutes. Seventeen interviews were conducted with practitioners in the criminal justice system (see Table Three); however one scientist revoked consent a few days after the interview and was removed from the study.
70 TABLE THREE: THAMES VALLEY PARTICIPANTS Organisation Code of Interviewee Number of participants Police TVP 6 SOCOs TVSOCO 5 Scientists TVFS 4 Police civilian officer TVCO 1 TOTAL 16
Within each group a range of practitioners were interviewed. Although most of the groups were represented by one organisation, there were a number of variations. The scientists were recruited from two separate private laboratories that provide services to the Thames Valley Police. Similarly, the defence lawyers in NSW were recruited from two different Chambers. The NSW police officers were recruited from different Sydney LACs and the Thames Valley police officers and SOCOs were also recruited from different BCUs. In NSW, one crime scene officer and four SOCOs were interviewed. Consequently, most of the information presented reflects the experiences of the SOCOs. The judicial officers in NSW represented three levels of court, the local, district and supreme courts, which deal with different types of cases with varying duration.
Interviewees were predominantly male. There were no female judicial officers or Thames Valley police officers included in this study, although female judicial officers were approached. In NSW, there was one female police officer, one female SOCO, three female scientists, three female prosecutors and one female defence lawyer. Similarly, in the Thames Valley there were two female SOCOs, one female scientists and one civilian female police officer. In total, thirteen of forty-eight participants were female (this sample size excludes the scientist that revoked consent).
Practitioners were drawn from different positions within their organisation. The Thames Valley Police cohort included one Deputy Senior Investigator, an Acting Sergeant, a Detective Sergeant, an Exhibit Officer, and two general duties police officers. In the Thames Valley sample, there were two senior SOCOs and three officers. While in NSW, there were two senior SOCOs, two scene of crime officers and a crime scene officer who used to work in a SOCO unit. The different ranks and levels of experience allowed the researcher to explore whether these different levels affect the knowledge and use of DNA profiling by practitioners. 71
A semi-structured interview guide allowed the researcher to be more flexible in terms of how the interview was conducted. Whilst the core set of questions remained the same, the researcher had the discretion to alter the sequence of questions or to probe for further information (Fielding 1993). This was important as it allowed the interviewees to freely express their perspectives on a number of questions, whilst also providing them with the freedom to provide additional information to the researcher. This form of interviewing provided richer data than a survey would have permitted. In addition, it allowed comparison between participants within the same group, and even between groups. Although the general topics covered in each interview remained the same, each interview guide was tailored in accordance with the group’s role within the criminal justice system. Consequently, while some answers can be compared across groups, others are limited to comparison between countries and within the same group (see Appendix Three).
Each interview schedule covered six topics, including: general information; the proliferation, legal implications, and impacts of DNA profiling; the use of DNA evidence in different offence types; and the potential injustices which DNA profiling may create (see Appendix Three). The data from the interviews was used to answer the first, second, third and fifth research questions: 1. What accounts for the proliferation in the use of DNA profiling by criminal justice practitioners in recent years? 2. How has DNA profiling affected the way the criminal justice system operates? 3. Does the impact of DNA evidence vary with the type of offence? 5. Does the use of DNA profiling lead to unintended consequences?
Judgments, documents and statistical analysis Although the use of interviews provided meaningful data to explore how the introduction of DNA profiling had affected the criminal justice system and the practitioners within it, additional data sources were required when addressing the historical and legal contexts of DNA profiling; the reasons behind the proliferation for DNA profiling in the criminal justice system; and existing cases where DNA evidence
72 had caused miscarriages of justice, or civil liberty concerns. Document analysis was employed to provide insight and information into these three research questions.
Legal decisions were analysed to illustrate how DNA evidence has been used in specific judgments. According to Freckelton (2005: 563):
An important focus of case law in England has been upon the ways in which the prosecution can present DNA profiling evidence and legitimate ways in which the defence can seek to impugn such evidence.
As a result, this thesis examined a number of trial and appeal judgments to analyse how prosecutors present DNA evidence, and the types of challenges that have arisen. There have been claims that it is becoming less likely for DNA evidence to be challenged in NSW (Findlay and Grix 2003: 270) and English (Genewatch 2005:24) courts.
The judgments selected for this study provided the basic details of a case, and also summarised the DNA evidence. The cases were selected from Austlii, Casebase and Westlaw on the basis that they referred to DNA evidence and homicide, sexual assault or property crime. 57
The NSW cases were selected in two different ways. First, the earlier cases were chosen to represent how the use of DNA profiling in NSW has been shaped and limited by admissibility challenges (these were used in Chapter Two). Second, ten judgments were selected from between 2004 and 2007 to illustrate the more recent uses of DNA profiling, and to highlight how the earlier cases have impacted on the current judiciary process. These ten cases were chosen randomly from a list of results on an online database, where the search criteria chosen by the researcher sought to provide information on the use of DNA evidence in the three types of crime covered by research question three (homicide, sexual assault, and property crime). As a result, this criterion was limited to cases of homicide, sexual assault and property crime that had used DNA
57 Austlii (Australasian Legal Information Institute) and Casebase (through LexisNexis) are two Australian legal databases available online. Both sites include some international cases. Westlaw is an Australian and international legal database available online. 73 evidence at some stage of the trial. Of this sample, there was one case of harassment, one case of grievous bodily harm, one of sexual assault, two murders, two break and enters, one indecent assault, and two robbery cases. Judgments from the NSW Court of Criminal Appeal (CCA) and Supreme Court were obtained online via Austlii and Casebase. The majority of cases were selected from the NSW Court of Criminal Appeal or the NSW Supreme Court.
The popular belief that DNA evidence is not being routinely challenged in English courts was examined using judgments from a selection of Thames Valley cases that were accessed through Westlaw. The cases were selected in two ways. The first group consists of five key cases that have shaped the way that DNA evidence is used in English courts (these were used in Chapter Two). These cases were identified from the work of Freckleton (2005) and Williams and Johnson (2008). The second group is made up of ten recent cases that were chosen from the UK Court of Appeal, to examine how DNA evidence has been presented in court cases between 2004 and 2007 and whether the same challenges are occurring. Like the NSW cases, the ten cases from the UK were chosen from a list of search results where the search was based on the keywords of DNA and either homicide, sexual assault, or property crime. In this second group, there were three burglaries, two sexual assaults, three murders, one attempted robbery and one theft case.
Initially, one of the aims of this research was to access court transcripts from lower courts. However, a number of problems arose in accessing these transcripts in NSW. The process of obtaining trial transcripts and exhibits was very time consuming and cumbersome. As an outside party to the proceedings, the researcher was required to apply to the Attorney General’s Department Reporting Services Branch in Sydney to request specific court transcripts. The Department was then required to request permission from the presiding judicial officer over the specific case to allow the researcher to view the transcript. At the time of writing, only one case was made available. This process was not repeated in the Thames Valley given the difficulties encountered in NSW. As a result, the use of cases in this dissertation is limited and creates some problems of validity. The judgment transcripts do not always provide
74 comprehensive information on how the DNA evidence was presented, interpreted, or used by the jury or judicial officer when making a determination. As such, it is difficult to interpret the role of DNA evidence in affecting the outcome of a case solely from the transcript. In some cases, the interview material with judicial officers and lawyers assisted the researcher in determining the role of DNA evidence in certain criminal judgments.
Government documents, legislation, police training manuals and published statistics were also examined to provide another perspective on how DNA evidence has affected the criminal justice system. A range of government documents were analysed to understand the policies that were being introduced to govern DNA evidence, and the motives behind these policies. Reports, such as the NSW Ombudsman 2006 report also provide valuable insight into the current use of the technology by providing information that was inaccessible to the researcher, such as statistics from the NSW government laboratory. The legislation governing the use of DNA evidence was analysed to ascertain how the rules affected the criminal justice practitioners’ use of the technology, and how the technology was proliferating. Over the past two decades the legislation governing the technology has enabled it to proliferate extensively (see Chapter Five).
One of the main considerations of using document analysis is that the documents are “pre-produced”, and generated by sources external to the current research (O’Leary 2004). As such, the documents represent a number of different perspectives that range from contemporary comments on the use of forensic DNA profiling; retrospective documents detailing the introduction of the technology; various training manuals for police officers; primary documents detailing how DNA evidence is used in criminal trials; and official reports generated by organisations to demonstrate how they are using DNA profiling. For example, the police training manuals were written with a very specific purpose and aimed towards people with a general knowledge of policing practices. This inevitably affects the reliability and validity of these sources (these terms will be discussed later in the chapter).
75 The use of statistics was limited to those provided by the NSW Police and the Thames Valley Police. Some statistics were provided on the use and impacts of DNA evidence on the process of investigations, which complements the interviews with the police officers. Generally, these statistics are not comprehensive and only provide information on a very limited aspect of police work; they only provide a snapshot of how DNA evidence is being used by police. As the organisations controlled which statistics the researcher was provided with, it is probable that the statistics provide a positive view of the technology and its use by the police. In addition, it meant that the research could not answer several important questions, such as how often DNA evidence is used in criminal investigations, trials, and post conviction reviews; or how often DNA provides useful information for an investigation or trial. Although these raw statistics were supplemented by statistics presented by previous research and official government releases, they do not provide a complete picture of the use of DNA evidence in either jurisdiction.
The research process
As the scope of the study required the analysis of two separate legal jurisdictions, a number of expected problems occurred. These problems included making contact, gaining entry, and building rapport.
Making contact The first step in obtaining access to practitioners within the criminal justice system was to obtain ethical clearance. The University of New South Wales’ Human Research Ethics Committee granted conditional approval (HREC 05274) to conduct research in early 2006. The condition of research was that organisations involved in the research had to grant approval to conduct research within the organisation.
Letters and e-mails seeking approval were sent to the NSW Police, NSW Director of Public Prosecutions (DPP), NSW Supreme Court, NSW District Court, NSW Local Court, NSW Government Laboratory, NSW Department of Corrective Services (DCS), several NSW Bar Association Chambers, the Thames Valley Police, the Forensic Science Services (FSS), Thames Valley Crown Prosecutors, Thames Valley Public
76 Defenders Service (PDS), Thames Valley Courts, and Her Majesty’s Prison Service (HMPS). The FSS, and the Thames Valley prosecutors, defence lawyers, and courts did not respond to repeated requests to conduct research. The applications to DCS and HMPS were considered, however the DCS rejected the research on several grounds with the option of continuing the application with clarification. Contact with the HMPS stopped after September 2006. Due to the lack of comparability and the time associated with pursuing further ethics applications, it was decided not to pursue the inclusion of prisoners in this study.
The procedure for recruiting interviewees differed between organisations. The NSW Government Laboratory arranged interviews with five forensic biologists in one day. The Director of Public Prosecutions and the Local Court circulated information about the project, including the Participant Information Statement (PIS), amongst their staff members via e-mail. Those interested in participating contacted the researcher directly to organise an interview. One prosecutor was recruited through snowballing techniques.58
A selection of NSW Supreme Court and NSW District Court Judges were chosen from lists of judicial officers provided by Lawlink. These judges were sent letters requesting their participation in the project. Judges were selected foremost according to their involvement in DNA criminal cases. Finally, NSW defence lawyers were selected in a similar fashion: a list of defence lawyers was obtained from the NSW Bar Association website and individuals were sent letters. The response rate from defence lawyers was very low, and two participants were recruited through snowballing techniques.
Both the NSW and Thames Valley Police nominated a contact person to arrange interviewees. In NSW, the co-ordinator nominated several of the police officers and also provided a contact person within a local area command to provide additional police officers. Contact was made with police officers via e-mail and telephone. The Thames
58 The process of snowballing refers to the recruitment of participants through the recommendation of individuals already in the study. Usually, the person being interviewed suggested that someone else in the office would be good to talk to, who was then contacted for an interview. 77 Valley co-ordinator was also responsible for establishing contacts within the police, private laboratories and SOCOs in Oxfordshire. The process involved the co-ordinator providing a contact person within the organisation, who then nominated members of staff to participate.
One implication associated with the selection of specific participants by organisations, was that participants may have been chosen by the organisation to ensure that a particular opinion was expressed. That is, organisations may have chosen practitioners who were perceived to have a higher level of knowledge, or extensive experience of DNA profiling, or able to provide an appropriate representation of the institution. This selection process would have an effect on the data.
The process of using a co-ordinator was not always practical. There were occasions where the contact person nominated by the co-ordinator was unaware of why the interviewer was there or what was required. On some occasions it was understood that several interviews would occur in succession, however the contact person was under the impression that only their interview was occurring. As a result, a lot of time was wasted while other practitioners were recruited. It also resulted in people feeling pressured to be interviewed and a reluctance to speak openly.
Some interviews had to be re-scheduled due to the work commitments of the participants. In some cases, practitioners could not book interviews in advance because of uncertain work schedules. This was especially the case for the practitioners who were required to attend court. In particular, one defence lawyer needed to reschedule on several occasions because of extended trials or new trials. Also, due to their involvement with trials, many of the interviews with prosecutors, defence lawyers and judicial officers were conducted outside of office hours.
Gaining entry: Problems with police In most instances, there were no issues with gaining access to individuals once an interview had been organised. However, some participants and their supervisors remained suspicious and required further information before participating. The main
78 example occurred in the Thames Valley Police where the co-ordinator contacted a police station within Oxfordshire. The station’s supervisor was very sceptical about the project and the authorisation granted for the project. The co-ordinator faxed a copy of the interview questions to the supervisor and assured him that the officers could refuse to answer any questions. However, on arrival at the police station the researcher was taken into an interview room and questioned by the supervisor about her intentions and the purpose of the research. The problem in this scenario arose from a recent case where a police officer was quoted in a popular magazine, which revealed details of a case that was confidential. Once the supervisor was assured that the interview was not concerned with specific cases and that the officers would remain anonymous, he informed the researcher that the two police officers were not to be audio-recorded.
Building rapport Building rapport with interviewees is an important aspect of conducting face-to-face interviews. On a number of occasions, the progress and quality of the interview depended entirely on the ability to build rapport. The majority of these involved practitioners who did not volunteer for the project; rather they were contacted as a result of snowballing or nomination by a supervisor.
Building rapport with some practitioners, and in particular judicial officers, was necessary because of the youthful age of the researcher. In most of the interviews with judicial officers there were several references about the difference in age and therefore a perceived difference in experience and knowledge. This had advantages and disadvantages. In some cases, the judicial officers would provide more detailed answers than they might have with another researcher. However, it also meant that in some cases they were less likely to be open, and questioned how much the researcher knew about the topic. One of the defence lawyers also continually challenged the researcher’s level of knowledge about the topic at the beginning of the interview.
The reluctance of some practitioners to talk openly in the interview was more pronounced amongst the Thames Valley participants. Most of the interviewees in the Thames Valley were very suspicious of the aim of the research and why they were
79 involved. In a few cases the prospect of conducting interviews was in jeopardy because of the level of distrust. As a result, most of the interviews began with an informal discussion about the research. Once practitioners understood that the questions were aimed at a discussion about their experiences and knowledge of DNA profiling, rather than an assessment of how well they used DNA evidence, most practitioners were more comfortable and open. By the end of every interview the practitioners were relaxed and more open about their views.
There were several instances where practitioners provided an “official line”, rather than a personal response. For example, when asked whether there could be improvements to the legislation governing DNA evidence, NSWP1 responded with:
That’s then sort of going down a corporate line and issues like that are probably more appropriately addressed through the correct channels and chain of command and that sort of thing …
Some practitioners were very open about this, and stated that although they had different personal beliefs they felt obliged to provide the organisation’s viewpoint instead. This reluctance to speak about certain issues, in turn, provided indirect informal information about the organisation and the perception of DNA profiling. Some practitioners refused to answer certain questions. In these cases, probing was used to a limited degree. In the interests of maintaining a good relationship with the interviewee, certain issues were not pushed and where the respondent asked to avoid an issue, the topic was discontinued (NSWP2; NSWP3).
Methodological issues
According to Creswell and Miller (2000: 124) there is a need for researchers to “demonstrate that their studies are credible”. There are a number of methodological issues connected with a case study design. Interviews, like many qualitative methods, have a number of weaknesses that can affect the quality and validity of the data collected. Sarantakos (2005: 45-46) provides the following thirteen criticisms as being the most common problems of qualitative research: efficacy, representativeness,
80 generalisability, objectivity, validity and reliability, interpretations, comparability, replicability, ethics, quality of data, anything goes, time, and costs.
Representativeness Qualitative research, and interviews in particular, can have problems with representativeness when it is based on a small sample size (Sarantakos 2005: 46). Unfortunately, this study did have a relatively small sample size of only forty-nine participants. In addition, there were a very small number of participants interviewed from each grouping within a jurisdiction. For example, the largest group of participants was the NSW judicial officers with seven interviewees; and the smallest group was the Thames Valley police civilian officer with only one interviewee. These small groupings pose serious problems for the representativeness and generalisability of the findings of this dissertation. In some circumstances, the findings of the interviews were supported by official documents and statistics, which increased the level of representativeness of the study. Overall, however, there are limits to the degree to which the findings of this study can be seen as representative of the broader community.
Generalisability and external validity According to Calder et al (1982: 240), external validity is concerned with the extent to which the findings can be generalised across “different measures, persons, settings, and times”. A number of qualitative researchers have downplayed the importance of generalisation by arguing that they do not expect other researchers to be able to replicate their findings (Schofield 2002: 174). While this research does not seek to formally generalise about the uses of DNA evidence in other criminal jurisdictions, or in other timeframes, it does, in a limited way, generalise the interview findings to examine the overall use of DNA evidence in the Thames Valley and NSW criminal justice systems. Where these generalisations are made, they are supported by previous findings and official documents.
81 Through using document analysis, the researcher was able to triangulate the results and verify statements made by criminal justice practitioners.59 In one example, many of the criminal justice practitioners talked about the growing use of DNA profiling in volume crime cases, which was corroborated by the statistics provided by both the NSW Police and the Thames Valley Police (see Chapter Seven). In these circumstances, the research was able to make some generalisations, such as that the use of DNA profiling is becoming more important in volume crime cases. In addition, by interviewing multiple groups of criminal justice practitioners, common themes became apparent that could be generalised to a certain extent. For example, all of the NSW police, scene of crime officers, and lawyers discussed the backlog of samples at the NSW government laboratory. As the existence of backlogs was also supported by several official documents, including the Ombudsman Report (2006), the researcher was able to verify the statements from the different interviewees.
There is also a concern that the information obtained through an interview could be taken at face-value without examining the validity or accuracy of the statement. Although the participants in this dissertation reported information on their area of expertise, they also provided beliefs and opinions that may have been outside of their realm of knowledge. In these circumstances, unless the opinion could be supported by other interview data or official documents, these statements were portrayed as one person’s opinion, rather than a generalised view that was objective and reliable.
Internal validity Internal validity “addresses whether or not an observed covariation should be considered a causal relationship” (Calder, Phillips and Tybout 1982: 240). That is, it examines whether a particular variable can be seen as the main cause of an event. The analysis of causality is problematic as it is difficult to eliminate other factors that may affect a relationship. For example, there are a number of factors that have affected the adoption and trajectory of DNA evidence in a forensic setting. As such it is difficult for
59 Triangulation refers to the “practice of employing several research tools within the same research design” (Sarantakos 2005: 145). This allows the researcher to examine several different perspectives, which provide deeper meaning to the data. Triangulation can also be used to test validity. 82 a researcher to determine a causal relationship between two variables. One of the purposes of case studies is to allow the researcher to make inferences about causal relationships where the events cannot be directly observed (Yin 1994). Because the adoption of DNA profiling has already occurred, case studies have been adopted to make inferences about how and why the technology was adopted.
The problem of internal validity can be minimised by examining rival explanations for an event, or to reduce the number of inferences possible. The research design has reduced problems of internal validity with the use of multiple sources of data (triangulation) and a theoretical foundation for understanding the effects of technology. Through an examination of official government reports and official statistics over the past two decades, the researcher was able to understand the historical and social context of the introduction of DNA profiling into the criminal justice system and to document the issues occurring at the same time which may have a bearing on how the technology was introduced and consequently used.
Reliability As qualitative field research can be difficult to replicate, it can experience problems with reliability (Miles and Huberman 1994). The data collection procedures of this study could pose problems in terms of reliability. As the main method of data-collection was by face-to-face interviews, the interviewer can have an effect on the participant.
For Chan and Doran (2003), a “fieldworker’s sex, age, ethnicity, and life experience can affect his or her ability to establish rapport with the subjects”. This occurred with some of the interviewees, especially the judicial officers as already mentioned, where age of the researcher may have influenced the responses, for example: “That case was very old in terms of your age; it’s not so old in terms of my time at the bar” (NSWJO2).
The accuracy of the interview data was increased where the interview was audio- recorded and transcripts were sent to the participant for approval. Although most participants declined to read the transcripts, those that did made no changes.
83 Interpretations One of the most significant problems with conducting interviews is the problem of ensuring that the researcher “fully and correctly captures the true meanings and interpretations of the respondent” (Sarantakos 2005: 46). As already mentioned, participants were offered copies of the transcript to ensure that their true meaning was conveyed in what they said during the interview. In addition, the use of official documents was used to corroborate certain statements made by interviewees, increasing the reliability of the interpretations of the data. One of the main examples of this was through the use of judgment transcripts. A number of the judicial officers and lawyers talked about several prominent NSW DNA cases that they had been involved with. In these cases, the researcher was able to verify the statements made by the interviewee through reading the transcript of the judgment. There were some cases where the researcher was unclear about the meaning of some of the interview data, and in these cases the quotes were excluded, or compared to other interview data and documents before they were used.
Ethical issues
Participants were asked to sign a consent form prior to beginning an interview. Although all of the participants gave their written consent to participate in the study, there may have been issues with regards to how that consent was given. As already noted, some of the interviewees were reluctant to participate and may have felt they were obliged to participate because of pressure from their supervisor. In another case, a defence lawyer was reluctant to be audio-recorded and initially refused. When, after five minutes it was clear that the interview would be inefficient without the use of recording, the interviewee consented to be recorded.
The confidentiality and anonymity of participants was ensured throughout the research process. All references to names and specific locations were removed from the interview transcripts. Names that were included within interviews were also removed in most cases. Each participant is represented by a code name that refers to his or her occupation (for example NSWP1 stands for NSW Police Officer 1).
84 Approaching the issues
This chapter has outlined the methodological design, methods and instruments used in this study. The following chapters examine the role and impact of DNA evidence on the two case studies: the Thames Valley and NSW criminal justice systems. Interviews with criminal justice practitioners provided evidence to suggest that DNA evidence has had a substantial impact on both areas and has changed some investigative and prosecutorial practices. In addition, the use of a case study design allowed some of the theoretical concepts (as described in the previous chapter), to be clarified and developed in order to provide a deeper meaning to the research findings (see Chapter Ten).
85 CHAPTER FIVE: THE LEGAL CONTEXT FOR DNA EVIDENCE
This chapter contextualises the use of DNA profiling in the Thames Valley and NSW criminal justice systems by examining the legislative changes that have affected its emergence. In both the UK and NSW, this legislation has been affected by the perceived need to be “tough on crime” that is characteristic of current law and order campaigns.60 The British government, for example, has extended police powers to collect DNA samples from people suspected of crimes, rather than convicted of crimes, under the pretext of being able to solve more crimes more efficiently. In the UK, the legislation has focused on the creation of the National DNA Database and the need to collect samples and retain profiles. These have become key features of the way that police use DNA evidence. In NSW, the legislation has focused on the regulation of the collection of samples, the need to share profiles across states and the establishment of a DNA Review Panel. This chapter also considers the impact of the legislation on the criminal justice practitioners in this study and how they perceived the impact of the legislation on criminal cases.
Thames Valley
As mentioned in Chapter Three, law and order issues rose to prominence in the UK from the 1970s onwards. An increase in police-recorded crime at this time led politicians in the UK to promise tougher police powers and increased punitive sentences in an effort to reduce crime levels and deter offenders. The shift to a more conservative type of politics led politicians to represent crime as “increasingly threatening and out of control” (Reiner, Livingstone and Allen 2003: 25). Representing crime as a public problem allowed the British Conservative Government to address the problem by expanding the powers of the state, and in particular the police, in an attempt to regulate individual behaviour (Fyfe 1995: 179). This rationale has been used by governments in the past decade to secure the use of DNA evidence in criminal investigations.
60 The “tough on crime” phase was coined by Tony Blair in the early 1990s and has since become a key political stance for many countries (Tham 2001). 86 The introduction of DNA evidence into the UK criminal justice system61 occurred at a time when the courts were hearing allegations of miscarriages of justice in appeal cases such as the Birmingham Six and the Guildford Four. These cases raised concerns about the reliability and use of forensic sciences in criminal investigations and prosecutions (Williams and Johnson 2008: 47). In 1991, on the day the Birmingham Six were released, the Home Secretary of the time, Kenneth Baker, announced the Royal Commission on Criminal Justice (Field and Thomas 1994). The Commission’s role was to examine the problems associated with wrongful convictions, such as false confessions, failures by the police and prosecution to disclose evidence to the defence, and the reporting of forensic evidence at trial.
The Commission’s report influenced the amendments to the Police and Criminal Evidence Act 1984 (PACE). The original PACE legislation sought to regulate police powers and allay concerns about miscarriages of justice, it also reflected the government’s promise to address law and order issues by being tougher on crime. For Fraser (2007: 383), the PACE Act:
… radically altered police procedures, roles and responsibilities in criminal investigations. The purpose of these changes was to regulate the actions of investigators, to improve the quality of materials put before the courts and to safeguard the rights of arrestees and those in custody.
PACE was intended to systematically reform the investigative process (Home Office and Cabinet Office 2002) and provide police with the “powers needed to combat crime” (Home Office 2004: 3). PACE was the first piece of legislation to govern the use of DNA profiling, by providing police with powers to sample suspects and volunteers.62 This Act has significantly influenced the adoption and trajectory of the use of DNA technologies in the Thames Valley. 63
61 The UK legislation refers to just England and Wales. Scotland has a number of separate Acts, which will not be explored in this thesis. 62 As PACE predates the discovery of DNA profiling, the Act does not specifically refer to DNA evidence or powers to collect DNA samples. 63 Most of the Thames Valley criminal justice practitioners had a fair understanding of the legislation. This seemed especially true of the police officers and scientists. The majority of the police officers and scientists were aware of when samples could be collected, analysed, and 87
As PACE predates the introduction of DNA profiling, the original use of the technology by police officers and prosecutors was largely ungoverned; police were using DNA evidence on a frequent basis, and prosecutors were using it to successfully prosecute offenders outside of a specific legislative framework. During this time, DNA evidence “established its status as an authoritative investigative tool and an increasingly credible prosecutorial tool” (Williams and Johnson 2008: 45). The use of DNA evidence in the late 1980s shaped the subsequent legislative amendments to PACE, and the introduction of new legislation aimed at regulating and expanding the use of forensic DNA evidence. For example, the popular use of the technology led the House of Lords’ Select Committee in Science and Technology to publish a report in 1993 that endorsed the police use of the technology. The report also advocated for legislation that would allow police to continue to routinely collect and retain samples, as well as provide guidelines to govern the presentation of DNA results at trial (Johnson, Williams and Martin 2003). The result was the Criminal Justice and Public Order Act 1994, which allowed police officers to collect and retain DNA profiles on a national database. Police practices led the Home Office to enact legislation to provide officers with official powers to collect and retain DNA profiles.
The National DNA Database (NDNAD) The ability of DNA evidence to link suspects to crimes and the desire to link offenders to past (and future) offences led to the establishment of a national DNA database. The aim being to increase the likelihood of identifying suspects more accurately, and subsequently, being able to achieve more successful prosecutions. One of the main justifications for DNA databases relies on the assumption that offenders will commit more than one offence. Thus, once an offender is identified and placed on the database they might be linked to future criminal behaviour where DNA material is discovered.
uploaded onto the database. For the SOCOs, it was less important to know about the legislation because the majority of the legislation concerns the collection of samples from suspects, rather than from crime scenes (TVSOCO1). For example, TVSOCO3 stated, “I have an absence of knowledge of what the legislation is”. The SOCOs did not, however, believe that they needed more knowledge or that further legislation was required. 88 The Criminal Justice and Public Order Act 1994 established the legislative basis for the creation of a national DNA database, which was established a year later in 1995. The United Kingdom has the world’s oldest and largest DNA database, with over five percent of its population included on the system.64 The database has significantly changed how the police use DNA evidence, through its provisions to speculatively search a suspect’s DNA profile against a database of crime scene profiles, thus providing police with a new investigative tool. According to the Home Office (2003b), the establishment of the National DNA Database (NDNAD) has facilitated the investigation of criminal offences and increased the likelihood of identifying an offender.
The NDNAD provides substantial intelligence and evidence for law enforcement agencies. The criminal justice practitioners interviewed for this dissertation viewed the database as an essential tool in the investigation of crime, with TVP2 stating, “You couldn’t operate without it”. Similarly, TVSOCO4 commented on databases:
They’re really invaluable, because we wouldn’t be able to identify the profiles if we didn’t have a database.
TVCO believed that DNA evidence has ‘helped’ to convict more offenders in the Thames Valley through both primary and secondary detections.65 According to Williams and Johnson (2008: 36), the NDNAD has played a pivotal role in changing the management of criminal populations in the UK. For example, in 2000, the Home Office claimed that over 61% of all the identifications achieved through DNA evidence led to “some form of … intelligence” (Blakey 2000: 14).
64 Following the UK example, a number of countries have established national databases, including the US, Canada, New Zealand, Germany, Denmark and Australia. Austria has the second largest database, with 1.04 percent of its population on the database (Genewatch 2006). Interpol has also participated in facilitating the transfer of DNA profiles across European nations, and includes 186 member countries (Interpol 2008). The US Federal Bureau of Investigation’s, National DNA Index System (NDIS) held 4,138,015 profiles, 160,582 forensic profiles, and DNA profiles from 3,977,433 convicted felons at the end of 2006 (FBI 2007) and contains the profiles of 0.99 percent of the US population (Genewatch 2006). 65 A primary detection refers to the process where the DNA match led to the detection of an offender. A secondary detection can occur when the offender is already known to the police on a separate charge and then linked to other charges by means of the database (TVCO). 89
Within ten years of operation, the NDNAD held approximately 3.45 million criminal justice profiles (suspect) and 263,923 crime scene profiles (Parliamentary Office of Science and Technology 2006). Between April 1995 and March 2003, the UK NDNAD recorded 354,370 matches between criminal justice samples and crime scene samples (Home Office 2003a). In 2005/06, the Home Office (2006a: 35) reported that “one or more suspect sample profiles were matched with 49,247 crime scene sample profiles” According to the Parliamentary Office of Science and Technology (2006: 2), “the chance of a new crime scene profile loaded onto the NDNAD matching an individual’s profile already held is now 45%”. They did, however, acknowledge that DNA profiles are only successfully loaded onto the database from one percent of recorded crimes because of the difficulties associated with collecting and analysing samples.
The Home Office (2005) has also admitted that the NDNAD has a limited role in most criminal investigations. Specifically, the Home Office (2005: 9) stated:
Although having a very significant impact where it is used, the National DNA Database only features in about 0.8% of all criminal investigations. There are a relatively small number of crime scenes from which DNA samples can be recovered, and even where it could be recovered it may not be relevant.
Other evidence suggests that the UK database is largely ineffective and only solves an additional one crime for every 788 new samples entered onto the database (Slack 2008: 28). One limitation with the current statistics is that there are no figures for the number of matches that achieve convictions (McQuillan 2003). Nevertheless, the establishment of the database has provided an invaluable tool for the identification of suspects, especially in old cases where the police had been unable to identify the offender without DNA evidence. As Hocking and McCallum (2001: 1-2) noted, DNA “has been hailed as a miracle of proof – capable of solving the mystery of the unsolvable crime”. The creation of the database has increased the use of DNA evidence in criminal cases, which in turn, has led to the increase of samples stored on the database, thus rendering it more useful to police and prosecutors.
90 Widening the net for capturing DNA profiles
The creation and expansion of the NDNAD has been facilitated by various statutory frameworks over the past decade. Originally, under PACE, the police were limited to obtaining a sample only for the purpose of including or excluding a suspect in a serious arrestable offence. Police were also constrained in the collection of samples by the categorisation of intimate (blood, semen, pubic hair, or a swab from a person’s body orifice other than the mouth) and non-intimate samples (hair, nails, saliva, and a buccal swab from the mouth).66 Intimate samples can only be taken with the consent of the person, whereas non-intimate samples can be taken without consent. These categorisations have allowed the police to easily take samples from suspects using a buccal (or mouth) swab. The apparent unobtrusiveness of collecting a sample from the mouth (compared to taking blood) has ensured that there is minimal resistance from suspects and civil liberty groups objecting to the way that DNA samples are collected and subsequently used.
The acceptance of the collection of profiles was facilitated in the early 1990s, when an environment that was conducive to the expansion of police powers allowed the government to re-evaluate the powers for the collection of samples and retention of DNA profiles. The murder of Jamie Bulger in 1993, in particular, contributed to this atmosphere where the government was encouraged to increase police powers to prevent similar crimes from occurring (Napper 2000: 66). At the same time, the Royal Commission on Criminal Justice examined a case that related to the powers of the police to collect samples from persons involved in recordable crime (Dovaston 1996: 19).67 The Royal Commission recommended that legislative provision was required for the extensive storage of DNA samples and that police should be able to obtain DNA samples more easily (Johnson, Martin and Williams 2003: 29). This recommendation acted as a catalyst for the ensuing rapid changes to the UK legislation. Amendments to
66 The categorisation of intimate and non-intimate samples has been re-defined by the Serious Organised Crime and Police Act 2005 (SOCP). The change provides further instructions for police to collect samples, but has not changed the basic definition of intimate and non-intimate samples. 67 Under PACE, the police were restricted to collecting samples from persons involved in a serious arrestable offence, rather than recordable crime. 91 PACE have “substantially expanded the categories of persons from whom the police may legitimately take, retain, and speculatively compare samples and profiles” (Williams and Johnson 2005: 547). These amendments have changed the way that police use DNA evidence and have ensured that it can be used in relation to a wider range of offence types (which will be discussed in Chapter Seven).
Police powers to collect and retain samples were expanded by the Criminal Justice and Public Order Act 1994 (CJPO). The CJPO expanded police powers considerably to allow the police to take non-intimate samples from persons suspected, charged, or reported for a recordable offence.68 Under CJPO, the UK became the first jurisdiction to allow the collection of DNA samples from suspects charged with recordable offences, rather than just suspects charged with a serious arrestable offence. This shift enabled the police to collect and retain more DNA samples and facilitated the use of DNA evidence in volume crimes in the early 2000s. As a result, this Act allowed the “indefinite retention of DNA samples and profiles for all those convicted of recordable criminal offences” (Williams and Johnson 2005: 548). However, the Act also required the removal and destruction of DNA profiles of those acquitted of the offence, thus safeguarding the genetic privacy of people not convicted of a crime.
Police powers were again expanded in 1997 under the Criminal Evidence (Amendment) Act, which enabled police to retrospectively take non-intimate samples, without the person’s consent, if they were convicted of a recordable offence. That is, the Act legislated the sampling of prison populations. A Prisoner Sampling Programme was conducted from January until August 2003 and targeted offenders serving prison sentences for a recordable offence, and detainees of psychiatric establishments. As a result of this Programme, over 3,800 DNA profiles were uploaded onto the NDNAD (Home Office 2005: 9).
68 Where a person has not been charged, the procedure for taking a non-intimate sample requires the authorisation of an officer with a rank of at least superintendent on the basis that there are reasonable grounds to suspect the involvement of the individual. 92 The expanding size of the NDNAD has been secured by the steady decline of the number and type of profiles that must be removed from the database. Prior to 2001, police were responsible for the destruction of profiles of people suspected, but not convicted of, a criminal offence. Between 1995 and 2001, 245,530 profiles were removed from the database in compliance with the existing legislation (Home Office 2005: 9). Section 82 of the Criminal Justice and Police Act 2001 (CJP) absolved police of the responsibility to destroy fingerprints and DNA samples where a conviction was unsuccessful. The legislation provided police with the power to retain samples indefinitely, from suspects charged with an offence, convicted offenders and volunteers.69 In addition, the legislation authorised the retention of profiles that were illegally stored on the database prior to the legislation.
This amendment resulted in the expansion of the database and changed the nature of who could be included on the database. As Williams and Johnson (2005: 549) explained:
At a single stroke, the CJPOA 2001 changed the database from a collection of genetic material and information taken from a population of convicted offenders to a collection comprising anyone once charged with involvement in any recordable offence.
As a result of this shift towards a wider net of surveillance and the inclusion of innocent individuals on the database, a number of civil libertarian groups, criminal lawyers, and academics raised concerns about the inclusive nature of the legislation.
Despite this controversy over the CJP legislation, the power to retain samples was further extended in 2003 by the Criminal Justice Act. The 2003 Act allowed police to retain DNA samples from those suspected of a recordable offence. The Thames Valley criminal justice practitioners were very supportive of the legislation and one of the main strengths attributed to the legislation was the ability to take and retain samples from suspects (TVP1; TVP2; TVP3). The amendment has provoked widespread controversy and legal challenges (Williams and Johnson 2005). In 2004 when the Act became effective, the NDNAD Board estimated that 170,000 profiles would be added to the
69 Volunteers must be asked to consent to the retention of their sample. 93 database in its first year of operation (Williams and Johnson 2005). According to the Home Office (2005: 10) the change in the legislation only led to an overall increase of 71,600 samples (14%) in the first year. In 2004 the Home Office released Policing: Modernising Police Powers to Meet Community Needs, which outlined a number of potential areas where the use of DNA profiling could be extended if the legislation afforded additional police powers. The report advocated for the legislation to allow police officers to collect covert DNA samples (Home Office 2004). These powers are yet to be legislated.
Currently, the database includes profiles from the convicted, the unconvicted charged suspect, and the unconvicted arrested suspect. The Home Office, however, are still looking for ways to expand the database. In a recent media report, the Home Office suggested that the legislation should be extended to allow samples to be taken from people accused of offences such as speeding and littering (Doward and McKie 2008). The Home Office were quick to discontinue these plans after considerable public outcry.
Challenging the inclusiveness of the NDNAD
In the past five years, PACE has been reviewed by the Home Office on two occasions. The 2002 Review found that PACE “requires updating and reorganising to ensure that it reflects changes in society over the last twenty years” (Home Office and Cabinet Office 2002: 5). The findings of the 2002 Review led to a 2007 Review, which is still underway. This Review will affect the future trajectory of the type of DNA samples collected and loaded onto the NDNAD.
In the 2007 Review, the public raised a number of concerns about the powers of police under PACE to collect and store DNA samples. One response from a Liberty (National Council for Civil Liberties) spokesperson, Gareth Crossman, referred to the NDNAD:
It is vital that proper debate about the use of the NDNAD takes place now. This should consider not just whether any extension is justified but whether the current position has improved crime detection ... statistically the NDNAD does not seem to have a significant impact upon crime detection (cited in Home Office 2007a).
94 McCartney (2005) voiced similar concerns about the exaggerated value of the NDNAD. In contrast to these criticisms and concerns, the Home Office suggested in the Review that the threshold for the collection and retention of DNA samples for non-recordable offences should be reduced (Home Office 2007b).
The inclusive legislation has created human rights challenges against the ability of the state to retain private genetic information. The case of R v Marper and ‘S’ [2002], and the three subsequent appeals (one in 2003 and two in 2004), concern the retention of DNA samples and profiles of two individuals: ‘S’, a twelve year old boy who was originally charged with attempted robbery but not subsequently convicted; and Marper, 45, who was arrested and charged with harassment but the Crown Prosecution Service (CPS) subsequently discontinued the case. Both claimants were informed, in writing, by the police that DNA samples and fingerprints from the males would be retained on the NDNAD to aid in the investigation of further crimes. The Chief Constable of South Yorkshire Police refused the appellant’s request to destroy the samples, on the basis of powers from the CJP Act 2001 (Williams and Johnson 2005: 548).
The claimants sought judicial review on the ground that the retention of these samples, without a criminal conviction, was a breach of privacy under article 8 and 14 of the European Convention of Human Rights (ECHR) and the Human Rights Act 1998. Article 8(2) of the ECHR states that a breach of privacy must be “in accordance with the law” and that there is a necessity to do so. The appellants argued that there is no necessity to retain the DNA samples and fingerprints if a person is not convicted.70 Second, the appellants have further argued, under section 14 of the ECHR that the legislation creates discriminatory distinction between people charged with a crime, but not convicted, and the wider population.
The English courts have categorically dismissed these concerns. In R v Marper and ‘S’ [2004], Lord Brown of Eaton-Under-Heywood stated (at 86):
70 Williams and Johnson (2008: 93) believed that the challenge to the retention, and not collection, of samples is an important distinction that illustrates the acceptance of the judiciary that police have the right to collect samples from suspects. 95 Given the carefully defined and limited use to which the DNA database is permitted to be put - essentially the detection and prosecution of crime – I find it difficult to understand why anyone should object to the retention of their profile (and sample) on the database once it has been lawfully placed there. The only logical basis I can think of for such an objection is that it will serve to increase the risk of the person’s detection in the event of his offending in the future.
In dismissing the second concern of the appellants, the Court referred to the retention of volunteer samples on the database, while failing to recognise that volunteers can object to the retention of their samples under the CJP Act 2001. For Peter Mahy, a human rights solicitor in Sheffield, the case “will probably be one of the most important human rights cases of all time” (2008 cited in Gibb 2008). According to one newspaper article, if the appeal was successfully upheld, the NDNAD would be required to destroy 560,000 DNA samples, or thirteen percent of the 4.3 million profiles collected since 1995 (O’Neill, Brown and Ford 2008).
On December 4 2008, the European Court of Human Rights in Strasbourg ruled against the retention of DNA samples on the UK NDNAD. The judges ruled that:
... the retention of the DNA ‘failed to strike a fair balance between the competing public and private interests’, and that the UK government ‘had overstepped any acceptable margin of appreciation in this regard’ ... that ‘the retention in question constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society’ (Corrin 2009: 1).
The case has wide reaching implications concerning the validity of the legislation and how police use DNA evidence. The UK government is currently revisiting the legislation regarding the retention of DNA samples and judges are now required to determine if such evidence was lawfully obtained. This ruling will inevitably affect how the UK can use DNA evidence in criminal cases, and the government’s ability to expand police powers to retain DNA samples will be more closely regulated in the future. Police practices will also be affected by the decision to destroy samples of those cleared of involvement in criminal offences. As the database decreases in size, the
96 ability for police to obtain cold hits will also decrease, making it more difficult for some offences to be cleared.71
Police Elimination DNA Database The routine use of DNA evidence in criminal cases, and the creation of highly sensitive technologies, such as LCN, has created the need for Police Elimination Databases (PED). The purpose of elimination databases is to exclude the possibility that a police officer, SOCO, or forensic scientist was the donor of an unknown crime scene profile. As such, the database is concerned with excluding people, rather than including them. The PED is used to increase the turn-around time of solving crimes by eliminating unknown profiles that belong to police officers. Usually this database will only be used if the police officer knows that they have contaminated a crime scene by either touching a surface or sneezing at the scene (TVP6). In each case the individual police officer will be contacted to approve the comparison to protect against speculative searches of the database.
In 2002, the United Kingdom introduced a stand-alone Police DNA Elimination Database through regulation 20A of the Police (Amendment) Regulation 2002 Act. Inclusion on the PED is mandatory for all new police recruits and some civilian officers (TVP6). The profiles are stored separately to the profiles taken under PACE and will be destroyed when the officer ceases to be a member of a police force in the UK. According to the Honourable Caroline Flint:
… approximately 39 percent of all police officers and police staff have submitted a DNA sample for inclusion on the Police Elimination Database … As at 21 January 2005, there were 78 639 DNA profiles taken from serving officers and police staff in England and Wales retained on the PED. Of these, 62 518 profiles were from police officers and 4 325 from police staff … including [t]he vast majority of police officers
71 A cold hit or cold link is a “link between the DNA of a suspect or convicted offender and DNA obtained from an unsolved crime scene, made when the second profile … is loaded onto the database” (NSW Ombudsman 2006: 194). In most cases, the person linked to the crime scene was not a known suspect and the suspect could not have been identified without the use of the database. 97 and police staff who attend crime scenes or handle forensic material (UK Parliament 2006 Hansard Written Answers: 385W).
For TVP4, new recruits are “willing” to provide their DNA samples because it is necessary in order to become a police officer. The Thames Valley SOCOs and scientists are also included on a separate database for elimination purposes.
Admissibility of DNA evidence Genewatch (2005: 24) has argued that there have been few challenges to the admissibility of DNA evidence in English courts. Indeed, in many of the judgments examined in this dissertation, the judicial officers tended to praise the use of DNA evidence rather than criticise it. For example, in R v Kapya [2005], the judicial officer ruled that the presence of DNA evidence made the case inevitably stronger, and that without the evidence it would have been likely that the verdict would have been not guilty. In another example, in the Marper case the English courts were inclined to value the evidentiary value of DNA evidence over concerns of genetic privacy, as mentioned earlier in this chapter.
Although there has been a general acceptance of DNA evidence into English courts, there have been some cases where it has been challenged under PACE. Section 78 (1) of PACE provides basic guidelines for the admissibility of expert evidence, such as DNA evidence. Under this section:
In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it (at [78]).
As such, this section allows unreliable evidence to be excluded and was used in the 1990s on at least two occasions to exclude DNA evidence in English courts (Redmayne 2001: 97). Expert witnesses are also restricted from presenting hearsay evidence, or second-hand evidence, to the courts (Rothwell 2004: 419). As such, scientists are limited to presenting evidence that they were directly responsible for generating.
98 Experts are, however, allowed to provide opinion evidence that assists the court to interpret the findings.
For Redmayne (2001: 97), the rules governing the admissibility of evidence in English courts are unsatisfactory. One of the limitations that Redmayne (2001) highlights is that section 78 of PACE only applies to prosecution evidence, thus allowing the defence to potentially introduce dubious expert evidence. A second limitation of PACE is that section 78 was “not designed to apply to expert evidence, and it gives courts little guidance as to when such evidence is ripe for rejection” (Redmayne 2001: 97). This limited guidance may be one reason for the general acceptance of DNA evidence in criminal trials. In addition to PACE, R v Silverlock [1894] provides a reliability-based rule that an expert must have appropriate qualifications (Redmayne 2001: 95). Unfortunately, this rule does not consider whether the science of the evidence is admissible, instead it focuses on whether the expert has adequate knowledge in an area (Redmayne 2001: 96).
The UK courts do not have the same level of admissibility standards that either the US has with Frye v United States (1923) or Daubert v Merrell Dow Pharmaceuticals, Inc (1993), or that NSW has with the Evidence Act 1995 (NSW) (this Act will be discussed later in this chapter). Under Frye, the courts determined that evidence that had “gained acceptance in the particular field in which it belongs” would be admitted at trial. Unlike the UK Silverlock ruling, the Frye ruling meant that expert witnesses were required to prove that the scientific area that they were testifying on was a legitimate field of study that had been verified by the scientific community. In the mid-1990s, the general acceptance test was still used in almost half of the American States despite the introduction of the Daubert test in 1993 (Imwinkelried in Connors, Lundregan, Miller and McEwen 1996: xii).
In Daubert, the court ruled that judges must “perform a ‘gatekeeping role’ and screen scientific evidence to ensure its reliability before admitting it” (Redmayne 2001: 104). Expert testimony was to be based on scientific knowledge that would assist with the trier of fact. As such, experts were required to prove that a scientific technique had been
99 tested and proven to be reliable, and that it was relevant to the case at hand, before it was admitted to court.
As a result of these formalised admissibility standards, lawyers, judicial officers and expert witnesses (scientists) have been provided with more stringent guidelines on how they can introduce and present evidence at trial. For example, in the US, scientists are now obliged to prove that the scientific evidence that they are presenting has been validated by other scientists, and that they have the necessary qualifications to present the evidence. This has inevitably affected how DNA evidence has been used in criminal cases. As lawyers were not interviewed in the UK, it is difficult to determine how the absence of formalised admissibility standards has affected the introduction and use of DNA evidence in criminal cases. However, it might be the case that UK lawyers see fewer avenues for challenging the admissibility of DNA evidence than their counterparts in the US.
New South Wales
In 1995, the Premier of NSW, Bob Carr, began to follow trends in the UK and US where policies such as “three strikes and you’re out” mandatory sentencing were being implemented. The Government relied on high profile cases, such as the murder of Ebony Simpson, to fuel public concern about the levels of crime in NSW (Lee 1996). Over the past decade, the NSW Government has continued its tough stance on crime, with the extension of police powers and punitive measures.
In the early 2000s, more than a decade after the first use of the technology in the judicial system, the government began to introduce legislation governing the collection and retention of DNA samples. In 1990 the Standing Committee of the Attorney- General began to consider the need for a national model criminal code for Australian jurisdictions (Model Criminal Code Officers Committee 1999: i). In July 1995 the Model Forensic Procedures Bill was endorsed by the Committee and included a
100 legislative platform for a national DNA database.72 Since this time, a number of Australian jurisdictions have passed legislation which implements at least part of the updated 2000 Model Bill. The Model Bill sought to restrict the collection of DNA samples to those suspected of having committed a criminal offence and provided guidelines for the admissibility of DNA evidence at trial and the destruction of forensic material.
According to some of the NSW practitioners, the development of legislation in NSW has been significantly affected by the use of DNA profiling in the UK. One of the NSW defence lawyers described how NSW legislation was influenced by the experiences in the UK:
The fact that the mother of our democracy and criminal justice system is doing something, well it gives good argument for those that want to bring in those changes. Senior policemen from England said, when I asked him what’s coming next, he said ‘well if you see it on the Bill then you can expect it’. Things like their … use of DNA, certainly the law and order campaign for the Blair Government in particular are picked up by people in the cabinet office in NSW and imported into NSW (NSWD1).
Some of these criminal justice practitioners believed that following the UK example would increase the usefulness of DNA evidence in NSW. NSWP3 stated that because NSW is a long way behind the UK, and is following its example, it has the benefit of learning from the UK’s mistakes and rectifying the problems before they are implemented.73 NSW implemented legislation governing DNA evidence five years after the UK established the NDNAD. It provided more stringent restrictions on the
72 For a summary of the main differences between the Model Bill and the Crimes (Forensic Procedures) Act 2000 see Findlay (2003: 22-24). For a general discussion of the Model Forensic Procedures Bill see Model Criminal Code Officers Committee (1999). 73 Although most of the practitioners demonstrated a high level of familiarity with the legislative framework governing DNA profiling, some believed that knowledge of the legislation was not essential. For example, in NSW, none of the judicial officers could talk about the Forensic Procedure Act in any detail; one judicial officer remarked, “I’d have to confess to not being particularly familiar with them. I’m not as familiar as I should be”. In general, the judicial officers and prosecutors were more familiar with the Evidence Act 1995 than the Forensic Procedure Act because they used it more frequently. 101 collection and retention of samples than the UK, but overall, the legislation is still remarkably similar.
The first piece of legislation in NSW, the Crimes (Forensic Procedures) Act 2000 (NSW), was based on a combination of the Model Forensic Procedures Bill 1995 and the Model Forensic Procedures Bill 2000 and incorporated a number of its recommendations and procedures.74 For Findlay (2003: 13), the introduction of the legislation was an attempt by the government to balance the rights of the individual with the needs of the State to control crime rates. The Act, however, received criticism from a number of civil liberty proponents for deviating from the Model Bill. Amendments to this legislation have led to further deviation from the Model Bill by increasing police powers and the size of the database, while affording special protection to a number of vulnerable groups, such as minors and Aboriginal and Torres Straight Islander (ATSI) people.75
Collection of samples The Crimes (Forensic Procedures) Act 2000 provided the basis for the collection of DNA samples. Unlike the UK, NSW categorised the buccal swab as a separate category that was neither a non-intimate or intimate procedure (Findlay 2003: 22). In addition, intimate samples could be taken from suspects with informed consent or by the order of a senior police officer when a person was arrested.76 The samples can be checked against crime scene profiles stored in the NSW database and retained on the database if the individual is subsequently convicted of the offence. Samples can also be taken from persons previously convicted of a serious indictable offence and the power to take non-
74 See Findlay (2003) for a more detailed description of the differences between the two Model Bills. 75 All ATSI persons are allowed to have a friend accompany them when the police are conducting forensic procedures. The Crimes (Forensic Procedures) Amendment Act 2002 allowed the police to refuse entry to an ATSI friend if the police believe they also participated in the commission of the offence. Where this occurs, however, another friend must be found. 76 To collect a non-intimate sample from an adult not under arrest, an incapable person, or a child (at least ten, but under eighteen) requires the order of a Magistrate or informed consent in the case of an adult. 102 intimate samples from inmates is unrestricted.77 By a 2007 amendment, the Crimes (Forensic Procedures) Amendment Act 2007 (NSW), police officers are required to believe, on reasonable grounds, that a suspect has committed an offence and that a DNA sample is likely to provide evidence to confirm or disprove the suspect’s involvement. These regulations provide NSW police with specific guidelines for the collection and retention of DNA samples. One of the SOCOs in this study stated that several police officers had complained about the inability to take samples from suspects unless there are justifiable grounds.
The 2000 Act also provided very detailed guidelines for the permissible matching of DNA profiles on the NSW DNA database system. Although now out-dated, section 93 of the Act provided the following table:
TABLE FOUR: INDEX OF PROFILE TO BE MATCHED: IS MATCHING PERMITTED? DNA Database Sources samples are collected from: Index of file Is matching permitted? to be matched Crime Suspects Volunteers Volunteers Offenders Missing Unknown Scene (limited (Unlimited persons deceased purpose) purposes) persons Crime Scene Yes Yes No Yes Yes Yes Yes
Suspects Yes No No No Yes No Yes
Volunteers Only if No No No Only if Only if Only if (Limited within within within within purposes) purpose purpose purpose purpose
Volunteers Yes No No No Yes Yes Yes (Unlimited purposes)
Offenders Yes Yes No No Yes Yes Yes
Missing Yes Yes Yes Yes Yes Yes Yes persons
Unknown Yes Yes Yes Yes Yes Yes No deceased persons
77 See the NSW Ombudsman (2001) Discussion Paper: The Forensic DNA Sampling of Serious Indictable Offenders for more details. 103 Source: Crimes (Forensic Procedures) Act 2000, Section 93.
As Table Four illustrates, the legislation provided strict guidelines for the use of the DNA database in NSW.78 Police were able to use this table as a quick reference point to determine which samples can be crosschecked on the database. According to the Independent Review of the Crimes (Forensic Procedure) Act 2000 by Mark Findlay in 2003, the ‘police were satisfied with the expansion of investigative powers and … prosecutors and jurors believed that police powers need to be extended to “more effectively deal with crime’” (Findlay 2003: 33). One of the main criticisms of the Act was the categorisation of the buccal swab as a separate procedure sample because it meant that officers were often required to seek authorisation to take the most efficient type of sample from suspects (Findlay 2003). The Crimes (Forensic Procedures) Amendment Act 2006 (NSW) re-categorised a self-administered buccal swab as a non- intimate forensic procedure, thus allowing police the opportunity to obtain DNA samples more easily.79
NSW has introduced a number of procedures to ensure that forensic procedures are conducted appropriately. Under the 2000 Act, all forensic procedures are required to be electronically recorded. The Crimes (Forensic Procedures) Amendment Act 2002 (NSW) allows a suspect to object to electronic recording of procedures. For NSWP3 and NSWP5, these requirements have slowed investigations:
It involves a considerable amount of resources to administer the process with a video- operator, often [with] independent people there. One of the problems is the area where people are suspects and aren’t charged and you want to obtain a sample, and if they are a juvenile, you have to [go to] court and you then have to disclose in your application to the justice why you want this sample … And that might compromise an investigation … (NSWP3)
78 The ability for a person to access information stored on the NSW DNA database was further clarified in the Crimes (Forensic Procedures) Regulation (NSW) 2000. 79 A buccal swab that was administered by another person was still characterised as an intimate procedure. 104 These problems have changed how some police officers use DNA evidence. Sometimes investigators do not obtain DNA samples because it is too difficult or too time- consuming. A number of officers in this study also reported on their desire to expand the powers of the police to sample everyone in NSW to avoid such problems. For example, NSWP2 commented, “I’d love for everyone in the country to be on the database”.
For one of the NSW police officers, it was important to learn and implement the legislation because:
… that legislation is crucial and those procedures have to be followed to the letter of the law otherwise such good evidence … [is] lost. It would be a bit of a travesty of justice, I believe, if it’s lost on a technicality. So we are very thorough with making sure the procedures of obtaining the samples are adapted to the letter of the law (NSWP5).
The NSW Police assisted with the implementation of the 2000 Act in two main ways. First, the Police Force introduced the Forensic Procedures Implementation Team (FPIT) in 2000 to provide assistance for the implementation of the Crimes (Forensic Procedures) Act 2000. FPIT can assist individual police officers with specific concerns about the Act and the specific requirements to collect samples (NSW Police 2005a). Second, the NSW Police Force established a NSW Police DNA Helpline offering twenty-four hour service to police officers who have questions about DNA collection and submission procedures. These two services aided the implementation of the Act and provided support for police officers.
However, there have been several challenges to the judicial interpretation of the Crimes (Forensic Procedures) Act 2000 and its revisions, including criticisms from within the ranks of the police. Cases, such as Walker v Budgen [2005],80 Police v Prilja [2006],81
80 On appeal the court ruled that the Magistrate had erred in making an order for the police to force a fourteen year old suspect to provide a DNA sample. 81 The defence successfully challenged the police application for a court order to take forensic samples from people without consent because they failed to show reasonable grounds for requesting the procedures. 105 and R v Dionnet [2007], 82 highlighted some of the problems associated with police and judicial officers interpreting the legislation. Two cases challenged the ability to collect covert DNA samples. In R v Kane [2004] the judicial officer ruled that the collection of DNA samples from public areas was not covered by the 2000 Act, and as such was lawful because informed consent was not required. Similarly, in R v White [2005], the covert collection of DNA samples was held to have been admissible, despite the evidence being collected in contravention with the Act. In this case, the police had arrested White on other grounds and allowed him to smoke a cigarette in the van dock of the police station. The police requested that White discard the butt in a clear space in the corner of the dock, with the intention of collecting the butt for DNA analysis. As this was not a public area, and the police forced the suspect to discard his DNA with the intention of collecting it for forensic purposes, it was found to be in contravention of the Act. Despite this, the Appeal Court found that the desirability of admitting the DNA evidence outweighed the undesirability of admitting the evidence (at [32]).83 Admissibility challenges contribute to the current use of DNA evidence, by police and prosecutors, by prescribing what behaviour is acceptable or unacceptable. It also provides further clarification of the Acts.
Two of the NSW criminal justice practitioners had substantial criticisms of the 2000 legislation and its amendments.84 In particular:
It’s a poorly drafted and poorly thought through piece of legislation in a number of respects and it suffers from the political necessity to compromise a number of aspects of
82 In Dionnet [2007] the defence argued that the police had failed to comply with the Act because they sent two buccal swabs to the laboratory instead of retaining one for the defence. Although the court agreed with the defence, it ruled the evidence admissible because “the desirability of admitting the evidence outweighs the undesirability of admitting the evidence” (at [14]). 83 Under section 138 of the Evidence Act 1995, a court can admit evidence that was improperly or illegally obtained if the “desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”. 84 While some of the practitioners were open about their views on the legislation, one of the interviewees refused to comment on the legislation other than stating that any response would be a “corporate line” (NSWP1).
106 that legislation to get it through and it works in ways which I suspect were never anticipated (NSWDPP3).
NSWD1 agreed that the legislation had problems, commenting that the legislation was a “political wrangling between the various police departments and the Attorney-General’s Department” with the result a ‘mish-mash’ of philosophies. The legislation was rushed through because the Government wanted to be seen as being “tough on crime” and because they had a number of consultants from the UK advising them to provide more police powers (NSWD1). The intention of the Government was to limit the criticism of the establishment of a database and provide police with the power to collect and retain samples. According to both NSWDPP3 and NSWD1, the ‘political compromise’ resulted in flawed legislation. The conflicts were caused by the desire to balance the rights of an individual with the perceived need to increase police powers. The result is dissatisfaction with the legislation from both prosecutors and defence lawyers.
The NSW DNA database
Following the UK example, the Crimes (Forensic Procedures) Act 2000 provided the basis for the retention of DNA samples on a NSW DNA database. In 2006 the Crimes (Forensic Procedures) Amendment Act allowed for DNA tests to be collected from people who had previously been convicted of a serious indictable offence in circumstances where they were subsequently charged with the commission of an indictable offence. This meant that samples could be acquired from people convicted prior to 2001 on serious indictable offences. The Greens Party referred to this as the “backcapture” of samples and argued that it seemed “like a backdoor for the Government to get more people on the DNA database” (NSW Legislative Council 2006 Second Reading: 2795). The Act has meant that the police can collect and retain samples from a wider network of offenders who commit less serious crimes without attracting too much public controversy. As the NSW legislation has increased police powers, as well as the collection and retention of DNA samples, there has been concern raised about the future uses of DNA profiling and the ability for the government to pass legislation unchecked.
107 In 2002, under the Crimes (Forensic Procedures) Amendment Act the police were required to destroy forensic material taken for investigative purposes when a person’s conviction is quashed.85 The Crimes (Forensic Procedures) Amendment Act 2007 specified that DNA samples must be destroyed within twelve months of a case being discontinued. NSWGS5 contended that the requirement to destroy a suspect sample after twelve months was ineffective and useless, especially given that some of the samples could not be processed within twelve months due to the backlogs (the issue of backlogs will be discussed later in the thesis). Prosecutors supported the proposal that samples should be kept until a case is finalised because of the detrimental implications for a case once a sample is more than twelve months old.86 The limited ability for the government to permanently store DNA samples on the database has restricted how police and prosecutors can use DNA evidence, as highlighted by NSWGS5. The NSW Government clearly defined the boundaries for the inclusion on the database - restricting it to people convicted of serious indictable offences.
All the criminal justice practitioners interviewed for this study believed that the NSW database was a beneficial tool to solve crimes. NSWP1 stated that the databases have contributed to the clearance of some crimes:
… there have been examples in the past where DNA databases have either directly or indirectly contributed towards solving crime, more quickly than they might have been or matters that may not have been solved at all … if the DNA database leads to one or two serous crimes – murder, sexual assaults – things of those nature, solved a year, well … you have to say it is worthwhile, particularly if you are the family or the people that are affected by that particular case.
85 The Crimes (Forensic Procedures) Amendment Act 2006 extended this approach to ensure the destruction of any forensic material and any additional information that relates to the DNA profile of a person from the database where they are acquitted of an offence. 86 NSWDPP2 discussed a case where a suspect in an armed robbery was included in the investigation through a match on a suspect already on the database. However, the profile on the database was a suspect profile older than twelve months (where there has been no conviction, suspect samples need to be destroyed after 12 months), which meant that the evidence was inadmissible, and the case lost. In addition, there was an offender profile on the database for the individual, which should have been used instead of the suspect sample. The prosecutor argued that if the law were amended to allow the use of samples older than twelve months, the case would not have been lost. 108 Similarly, NSWP1 highlighted the positive aspects of DNA profiling and the potential it can have to solve crimes that may not have been solved without the database.
The database also provides police with the opportunity to solve older cases (also known as cold cases). NSWDPP2 considered the DNA database to be a “brilliant” tool for the criminal justice system:
I think they are brilliant because they solve crimes. Often the police have done a good investigation getting into a serious matter and they get a cold hit and it leads to a successful prosecution.
Cold hits have become useful for prosecutors, and in some cases is the only evidence presented at trial. The database was also identified as an especially useful tool in solving crimes across different LACs where different police officers would be working on each case (NSWSOCO2).
Not surprisingly, the defence lawyers raised some objections to the use of DNA databases. There were three main concerns raised by the defence lawyers. The first was raised by NSWD1 who had misgivings about the ability to retain samples from convicted offenders because it increased the likelihood of further targeting by police. The second concern was related to the ability of the police to forcefully take DNA samples from individuals and argued that it was a violation of traditional rights to force someone to provide a sample. The third problem with the legislation was the ineffective implementation of the requirement of the Crown to give half the crime scene sample to the defence. In most cases the defence would not be able to access the original sample for independent tests because the police would have exhausted the entire sample in their tests (NSWD4). As already noted, similar issues were raised in Dionnet [2007]. According to NSWD4, the police see the crime scene sample as their property and consequently are reluctant to provide it to the defence.
NSW does not have a separate Police Elimination DNA Database. Instead, under the Forensic Procedures Act 2000 criminal justice practitioners can be asked to volunteer a DNA sample for the exclusive purpose of excluding them as the donor of a crime scene
109 sample. The NSW Police Union is opposed to the concept of Elimination Databases and, in general, the NSW police and SOCOs interviewed were not supportive of the idea of a stand-alone elimination database. According to NSWP1, “I don’t know whether you necessarily need a stand-alone database to address that”. Most of the officers believed that the current procedures were adequate for ensuring that unknown police or SOCO profiles were eliminated from the enquiry. However, some of the officers were open to the idea and argued that “unless you’ve got something to hide, why worry about it” (NSWP2). Currently, Western Australia is the only Australian jurisdiction to legislate the use of exclusionary DNA of law enforcement officers (Scudder and Hamer 2006: 134).
The involvement of NSW in the National Criminal Identification DNA Database
Following international successes, in 1998 the Australian Federal Government committed $50 million to establish a nation-wide organisation called CrimTrac, with the aim of developing a national DNA database. The Model Criminal Code Officers Committee (1999: iii) argued that a national database was necessary because “criminal activity often spans Australia’s internal borders and makes it necessary to get forensic evidence from different States and the Territories”. CrimTrac was developed to:
… transform law enforcement in Australia through rapid access to detailed, current and accurate police information across jurisdictional boundaries. CrimTrac systems would also defeat the so-called ‘tyranny of distance’ (Mobbs 2001: 3).
One of the databases created by CrimTrac was the National Criminal Investigation DNA Database (NCIDD), and its aim was to bypass many of the legislative and financial restrictions placed on the sharing of DNA samples across Australian states and territories. The Australian government rationalised the creation of a national database by stating, “it is clear from overseas experience that the targeting types of crime with low clearance rates for the use of DNA can produce impressive results” (Nearhos and Bowman 1999: 2).87
87 There are however no Australian or international statistics on the number of convictions that have been assisted by DNA evidence or DNA database hits (Haesler 2001a; McQuillan 2003).
110
The implementation of the NCIDD relied on the ability for Australian jurisdictions to legislate similar forensic procedures, and it was hoped that all Australian states and territories would adopt the Model Forensic Procedures Bill. In 2000, a number of Australian jurisdictions passed legislation to use the NCIDD. However, as indicated earlier, NSW, along with a number of other jurisdictions, did not adopt the Model Forensic Procedures Bill, which significantly limited the ability for DNA profiles or information to be shared across jurisdictions.
Some of the criminal justice practitioners in this study believed that the sharing of samples in late 2006 was still too complex for most police officers (NSWP2). NSWGS2 commented, “I’m completely lost as to what we do and what we don’t do” for cross- jurisdictional sharing. However, the process of cross-jurisdictional sharing was changed in early 2007 by the Crimes (Forensic Procedure) Amendment Act 2006. When NSWP2 was informed of the impending legislative changes, the reply was “Thank God, it’s a long time coming”.
In 2006, NSW amended its legislation through the Crimes (Forensic Procedures) Amendment Act 2006 (NSW) in order to facilitate communication between jurisdictions and provide a legal basis for the sharing of information across jurisdictions. Specifically, Section 97 of the 2000 Act was amended with the following clauses:
(1) The Minister may enter into arrangements with a responsible authority of a participating jurisdiction under which:
(a) information from the DNA database of this State is to be transmitted to that authority for the purpose of:
(i) the investigation of, or the conduct of proceedings for, an offence against the law of the State or the law of the participating jurisdiction, or
(ii) the identification of missing or deceased persons
111 The legislation provided a broad basis for the sharing of information between jurisdictions. This provision provided the legislative basis to use the CrimTrac National Criminal Investigation DNA Database (NCIDD), five years after it was established.
There was political fallout, responding to the “rushed” nature of the 2006 Amendment Act. During the second reading, Greens MLC, Lee Rhiannon stated:
Once again, this is another piece of legislation that has been rushed through this place … it is unsatisfactory to get a briefing on Tuesday and not see the bill until the next day … We would have drafted amendments if there had been sufficient time to do so ... The Greens believe that [this] Act is an important piece of legislation with major implications for civil liberties, privacy and prisoner’s rights. It is abominable that the Government is not giving members more notice to consider this important piece of legislation … The Government is not being honest with the public about the need for checks and balances with this legislation (NSW Legislative Council 2006 Second Reading: 2795).
While the extract suggests that the Government often hastily passes legislation, it is useful to consider why this specific bill was ‘rushed’. Gans (2007a), for example, has suggested that the South Australian and Northern Territory Governments approved the cross-jurisdictional transfer of profiles to assist in the Bradley Murdoch prosecution. At the same time as the Murdoch case, similar questions were being raised in NSW Parliament about the deficiencies in using the national DNA database on CrimTrac (NSW Legislative Council 2002 QWN: 3082). The ability to share samples across jurisdictions will affect how the NSW Police will use DNA evidence. As police find the processes associated with collecting, retaining and sharing DNA profiles more user- friendly, it is likely that the database will be used more frequently.
DNA Review Panel The use of DNA evidence in post-conviction reviews highlighted a number of problems with the criminal justice system, and in particular problems with “forensic incompetence and fraud”, unreliable forms of evidence, police misconduct, and reliance on prisoner informants (Lee and Tirnady 2003: 95). As such, DNA evidence provides a number of benefits for exoneration. One benefit is that as the technology is continually
112 improved, more minute samples can be tested. This means that people convicted with inconclusive DNA evidence can re-test the material with greater accuracy. A second benefit is that DNA tests can be conducted on old evidence samples and in a more discriminatory way than many other forensic techniques, making it one of the only types of evidence available to prisoners (NCJRS 1999: 1).
As a result of these benefits, the use of DNA evidence to exonerate those wrongly convicted is one of the most important applications of the technology. For Rowe, “DNA profiling has been instrumental in correcting injustices” (cited in Connors et al 1996: xvi). Indeed, in the US, DNA evidence has been the source of over 200 exonerations (Innocence Project 2008). Yet, in many ways the use of DNA evidence to exonerate people has created a double-edged sword for law enforcement agencies and civil libertarians. Most law enforcement officials were forced into a position where if they believed in the conclusiveness of DNA to convict, they also had to accept that it could exonerate those wrongfully convicted. However, there has been resistance from some US state officials to re-open old cases, as demonstrated by Governor Gilmore of Virginia who stated that science should not be used to overturn convictions (cited in Kellie 2001: 173).88 There have also been suggestions to restrict access to post- conviction DNA testing because of the trauma for victims, and the resources required to re-test samples (Carroll 2007).89 Despite this resistance, the ability of DNA evidence to exonerate and/or exclude people, has also ensured that it has received fewer challenges from civil libertarian groups than it might have had, because it assists suspects and those innocently convicted, rather than just assisting in the prosecution of offenders.
88 In 2001, the Virginia Governor Gilmore stated, “To now try and pretend that some “scientific litmus test” can overpower the justice system and be superior to the system of justice of a civilised people is naïve” (cited in Kellie 2001: 173). This case highlights the double standards that have become embedded within the community and the justice system: DNA profiling is invaluable when used by the prosecution, but a hindrance to civilisation where it tries to exonerate a prisoner. 89 There are concerns, however, that the number of post-conviction tests that have confirmed the petitioner’s guilt are higher than the number of exonerating tests (Carroll 2007). Estimates on the percentage of cases where a DNA test confirms guilt ranges from fifty to sixty per cent of cases. For Carroll (2007: 666), in these cases the tests “absorbs hundreds of hours of an already over-burdened state prosecutor’s time and puts the victim though the grief and pain of doubting the resolution of her ordeal”. 113 Although most Australian jurisdictions have legal revenues for cases to be reviewed if a person alleges that they have been wrongly convicted, there have been very few DNA- based appeals in both NSW and, more broadly, across Australia (Urbas 2002: 143). One of the reasons for this is because of the difficulty of obtaining criminal appeals. As Urbas (2002: 143) notes:
The promise of DNA evidence in overturning wrongful convictions depends heavily on the capacity of the criminal justice system, through the criminal appeals process and other post-conviction proceedings, to recognise and correct errors.
The Criminal Appeal Act 1912 (NSW) (s6) provides the NSW Court of Criminal Appeal (CCA) with the power to overturn convictions on ‘common form’ provisions:
The Court … shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgement of the court of trial should be set aside on the ground of the wrong decision on any question of law, or that on any other ground whatsoever there was a miscarriage of justice …
Section 6 of the Act further states that the court can dismiss the appeal if it considers “that no substantial miscarriage of justice has actually occurred”. In R v Carroll (2002), the High Court of Australia commented that a miscarriage of justice had occurred if a “verdict is unreasonable or not supportable on the evidence or is attended by a real doubt as to whether it is ‘safe or just’” (at [111]).
The ‘common form’ ground of appeal under the Act provides the most amenable grounds to use DNA evidence to appeal against a conviction. However, in many cases, the CCA has been unwilling to change the decision of the jury for fear of raising concerns about the traditional role of the jury in Australian courts (Urbas 2002: 145).90 Instead, the courts have preferred to overturn convictions where a legal error occurred or there was misdirection from the trial judge. These barriers to securing appeals limit the usefulness of DNA evidence in achieving exonerations in NSW.
90 For a more detailed discussion of the nuances of the term ‘miscarriages of justice’ and the problems faced by courts in applying it, see Urbas (2002). 114
To date, there has been one significant case in Australia where DNA evidence was used to exonerate a person. In the Queensland case of R v Button (2001), the Queensland Court of Appeal overturned Button’s conviction for the rape of a 13-year-old girl when DNA tests indicated that someone other than the appellant was responsible for the crime (Urbas 2002: 157). At the original trial, a scientist from the John Tongue Forensic Centre testified that a single test on a bed sheet failed to yield any male DNA. Although other samples were available (which eventually resulted in Button’s exoneration), the Forensic Centre failed to test the other samples sent to the laboratory because they were perceived to have had a lower evidentiary value (Walsh 2005b: 7).
Due to the problems faced by prisoners seeking post-conviction reviews, a number of jurisdictions in the US and Australia began to establish independent mechanisms for formal reviews, outside of the court process.91 In 1992, two prominent US lawyers, Barry Scheck and Peter Neufield founded the Innocence Project at the Cardozo School of Law at Yeshiva University. The aim of the Project was to assist prisoners whose innocence could be supported by DNA evidence (Innocence Project 2008). From 1999 onwards, approximately half of the exonerations in the US have used DNA evidence (Gross, Jacoby, Matheson, Montgomery and Patil 2004). In many of these cases, the wrongful conviction was based upon mistaken eyewitness identification, false confessions, incorrect forensic test results, and alleged government misconduct (Gross, Jacoby, Matheson, Montgomery and Patil 2004; Connors et al 1996).
There are, however, limitations to what the Innocence Projects can achieve. Berger (2003: 1) noted that there was no DNA evidence for post-conviction testing in approximately 75% of US cases and there is no guarantee that cases will be re- examined. This restricts the usefulness of DNA evidence. Despite the limitations of the
91 Unlike the US and several Australian states, the UK does not have an Innocence Project; rather appeals against wrongful convictions can be investigated and considered by the Criminal Cases Review Commission (CCRC) (Weathered 2007). Since 1997, the Commission have heard cases from 6,842 convicted defendants. Of these cases, only 271 (or 4.4%) were referred back to the Court of Appeal and of these references 68% resulted in quashed convictions (Griffith and Roth 2006). 115 US Innocence Project, its successes have prompted a number of Australian states to establish mechanisms for formal reviews. In August 2000, NSW established the Innocence Panel as a non-statutory body that reported to the Minister of Police (Griffith and Roth 2006). By 2003, the NSW Innocence Panel had identified thirteen cases where a post-conviction review was recommended. Only two of these cases, however, had crime scene evidence available for examination (Weathered 2004).
In 2003, one of the convicted killers of Janine Balding, ‘Shorty’ Jamieson, lodged an application with the Innocence Panel to review his conviction on the basis of DNA evidence. Minister Watkins almost immediately suspended the operations of the Innocence Panel because of the adverse publicity and the response from Janine Balding’s family. Subsequently, the Government promised the creation of a new legislative body that would review cases based upon stricter criteria. The process took four years and provided limited powers to a newly established DNA Review Panel.
The DNA Review Panel was created by the Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006 (NSW). Section 91 of the Crimes (Appeal and Review) Act 2001 (NSW) has been amended to outline the functions and powers of the DNA Review Panel. It is empowered:
(a) to consider any application under this Division from an eligible convicted person and to assess whether the person’s claim of innocence will be affected by DNA information obtained from biological material specified in the application,
(b) to arrange, if appropriate, searches for that biological material specified in the application,
(c) to refer, if appropriate, a case to the Court of Criminal Appeal …
(d) to make reports and recommendations to the Minister on systems, policies, and strategies for using DNA technology to assist in the assessment of claims of innocence …
As a result, the Panel can review cases where a convicted offender claims innocence and where DNA evidence is available. The Panel consists of six members appointed by the Governor. The members of the Panel must include: a former judicial officer, a
116 person nominated by the Premier to represent victims of crime, the Director-General of the Attorney General’s Department, the Senior Public Defender, the Director of Public Prosecutions, and a former police officer nominated by the Commissioner of the Police. The legislative requirements ensure that there is always one representative from each of the above legal groups. The exclusion of a prisoner advocate embodies Minister Watkins’ belief that the process of post-conviction release should be in the interests of the victim or their family rather than the convicted offender.
The NSW Bar Association has described the Panel as a “toothless tiger” (2007: 3). The Panel can only recommend to the Court of Criminal Appeal (CCA) that a case be reviewed and it has no power to compel the police to reinvestigate or retain biological material (Haesler 2007: 10). The referral of a case to the CCA simply creates the same problems of overturning convictions that Urbas (2002) outlined in the early 2000s, which limits the usefulness of the Panel. The eligibility of a case depends on the preservation of DNA exhibits by the police. In 2002, the then Deputy Commissioner of Police, Ken Moroney, issued a moratorium on the destruction of exhibits to all police officers directing them to preserve exhibits from crime scenes. According to the Honourable Peter Breen MLC, the 2002 moratorium was ignored and the practice of destroying exhibits continued (NSW Legislative Council 2004 ADJ: 10495). Even where samples were kept for a specified time period, the New South Wales Bar Association noted that it was likely that police would destroy samples, after the required seven to ten year period of retention, making it impossible for offenders to use the DNA Review Panel (NSW Bar Association 2007: 3). Consequently, the DNA Review Panel cannot review many cases because evidence is no longer available.
The creation of exoneration projects such as the NSW DNA Review Panel has ensured that forensic science techniques, such as DNA profiling, are important tools for achieving justice. While DNA continues to exonerate people, it will remain a prominent part of investigations and prosecutions.
117 Admissibility of DNA evidence There have been numerous challenges against the admissibility of DNA evidence in NSW criminal trials since its introduction into the criminal justice system in the late 1980s. For Gans and Urbas (2002: 3-4) there are a number of areas where the introduction of DNA evidence into trials can be challenged, including:
… the circumstances in which the relevant body samples were obtained, their secure transportation to a laboratory, their analysis and the detection and recording of DNA profiles … Moreover, evidence law requires opinions about forensic interpretation to be presented by a person with specialised knowledge based on training, study or experience that substantially or wholly supports the opinion.
As the quote above suggests, there are two main ways that lawyers can challenge the admissibility of DNA evidence – through the Crimes (Forensic Procedures) Act and the Evidence Act 1995.
First, lawyers can challenge the admissibility of DNA evidence in relation to the Crimes (Forensic Procedures) Act. The potential for evidence to be held inadmissible should affect how police officers gather DNA evidence. The Act establishes clear guidelines on how and when DNA samples can be collected from suspects and volunteers. Where officers contravene these procedures, the court has the authority to exclude the evidence, making it important for police officers to follow the Act. However, as already mentioned, there have been cases where the court has allowed DNA evidence to be admissible where it was gathered in contravention to the Act; including taking covert samples (in Kane and White), and failing to send reference samples to the defence (Dionnet). Gans (2007b: 606) argues that:
Australian judges routinely decline to exclude illegally obtained DNA samples on the ground that the police’s error was inadvertent and done with the best of intentions for the wider community.
Dixon (1997: 21) supports Gans’ proposition, by stating that the judiciary will legitimate the activities of police officers, even if they fall outside of the legislative powers of the police. If Gans (2007b) and Dixon (1997) are correct, and police officers
118 are aware of this predisposition, then in some circumstances police officers may be willing to side-step the official procedures because they know that the evidence may be accepted because of its probative value.
The second way that lawyers can challenge the admissibility of DNA evidence is through the Evidence Act 1995. Using the Evidence Act, judicial officers have discretionary powers to exclude evidence when there are challenges against the reliability of the evidence, the relevance of the evidence in relation to probative value, and concerns relating to expert opinion evidence (Edmond 2008). This Act provides strict guidelines for judicial officers to determine when evidence is admissible, and provides lawyers with specific avenues to challenge DNA evidence.
In relation to the admissibility of DNA evidence in NSW courts, there have been a number of challenges, and appeals, based on the presentation of opinion evidence. Section 76 of the Evidence Act states that experts cannot testify about an opinion that proves “the existence of a fact about the existence of which the opinion was expressed” (see the discussion on R v Sing [2002] in Chapter 2). However, one exception to the rule allows opinion-based evidence where the expert has sufficient specialised training and that the training provides information regarding the opinion evidence. As a result, scientists are allowed to provide the court with evidence concerning the likelihood of contamination and the reliability of a DNA match (see the discussion on Regina v Sharwood [2006] in Chapter 2). Although a large section of the Evidence Act is devoted to assessing the quality of expert opinion evidence (Part 3.3), Edmond (2008: 1) argues that Australian judges have exhibited little interest in assessing the reliability of expert opinion evidence.
Like Daubert, the Evidence Act provides judges with the ability to exclude or accept evidence on the basis of it being relevant to the facts of issue (Part 3.1), and whether it causes unfair prejudice to the accused (Part 3.11). Section 137 requires a judge to “exclude admissible evidence if its probative value is merely outweighed by the danger of unfair prejudice” (Edmond 2008: 10). In addition, evidence must be excluded if the judge deems that it does not provide any probative value to a case. According to
119 Edmond (2008: 22), there are few circumstances where evidence will be excluded if it is deemed to be of a high probative value. This view was supported by the selection of cases analysed in this dissertation. With the exception of the Sing case, all of the remaining cases involving a challenge to the admissibility of DNA evidence were unsuccessful because the probative value of the evidence was deemed to outweigh that problems associated with collecting or presenting the evidence to the jury.
The admissibility of DNA evidence into NSW criminal proceedings is dependent upon judicial discretion and directions based on the Evidence Act 1995. This Act, and how the judges use it, has influenced how DNA evidence has been used in criminal cases, how it is presented at trial, and how forensic scientists prepare and present expert testimony. For example, the hearsay rule (Part 3.2) increases the likelihood that the person presenting expert testimony will be the person who actually created the DNA profile (see Sing); while the opinion rule (Part 3.3) allows expert witnesses who were not involved in the creation of a DNA profile to present evidence on the general procedures followed to create a sample, and the process of creating probability statistics (see Sharwood). The Evidence Act provides lawyers with a variety of mechanisms to challenge the admissibility DNA evidence, while also allowing providing judicial officers with formal guidelines to act as gatekeepers to forensic evidence and expert testimony. However, as Edmond (2008) noted, judicial officers in Australia have tended to accept expert testimony in criminal proceedings, rather than excluding it.
Reinstating faith in forensic sciences
There are a number of differences and similarities between the legislation and use of DNA profiling in the UK and NSW. One of the main differences between the areas is the level of inclusiveness on the databases and the level of authorised police powers to collect samples. These differences can be attributed to the problems associated with transferring a technology, and legislative ideas, from one jurisdiction to another (Bozeman 2006; Jasanoff 2002; Kedia and Bhagat 1988). There are, however, a number of similarities between the areas: including the ability to backcapture samples and the desire to expand the use of national databases.
120 The various statutes reflect the wide acceptance of DNA profiling and the ease with which DNA profiling has become routinely used in criminal investigations and prosecutions in both England and NSW. The creation of databases and the continual expansion of the samples held on the database have facilitated the proliferation of the technology.
The introduction of legislation governing DNA evidence has been affected by several factors. As Johnson et al (2003: 10) have noted, many legislative changes “have been born out of proactive, and reactive, responses to arising situations within the criminal justice system”. As already highlighted in Chapter One, DNA evidence was introduced at a time when law enforcement agencies, in both the UK and Australia, were experiencing problems with forensic sciences and miscarriages of justice. At the same time, both the UK and NSW governments were expressing concerns about the levels of crime in society and were promising the public “tougher” campaign strategies, such as harsher penalties, to solve the perceived problem. DNA evidence was viewed as a tool that could both re-instate public faith in forensic sciences, and be used to combat rising crime levels. Both the UK and NSW governments introduced legislation governing the use of DNA evidence on the basis that it was a new initiative to improve the efficiency and accuracy of police investigations. Governments, and law enforcement agencies, have marketed DNA evidence as an objective and reliable forensic identification technique that is capable of preventing and correcting miscarriages of justice, or incorrect convictions. Similarly, the continual expansion of police powers to collect samples and retain profiles has been justified in terms of law and order politics and the need to protect the public from the criminal population.
Although the ‘tough on crime’ campaigns, and the problems with miscarriages of justice, were driving factors for legislating the use of DNA evidence, another important factor was the acceptance of the technique by criminal justice practitioners. Johnson et al (2003) have argued that policing demands and practices in the UK led to significant legislative changes, such as the CJPO Act 1994. As mentioned earlier, the UK Home Office began to investigate the use of DNA profiling after police officers and prosecutors routinely used it. The increased use of the technique by criminal justice
121 practitioners encouraged the government to provide legislative guidelines for using and retaining forensic DNA evidence.
In turn, the legislative basis for DNA profiling has shaped the use of the technology by police and prosecutors. In one example, the creation of DNA databases has been one of the most important factors in shaping how the police use DNA evidence. DNA databases have enabled police to take more samples from suspects and volunteers, and thus match more individuals to crime scene samples. In another example in NSW, the legislation has restricted the police use of DNA evidence because many officers do not want to follow the formal procedures necessary to obtain a sample, such as video- recording the procedure or obtaining consent prior to collecting a sample. In particular, the perceived onerous legislative basis for requiring consent has led some police officers to covertly collect samples. The courts have allowed covert sampling because the evidentiary value outweighs the prejudicial effect of the procedure under s138 of the Evidence Act. The Evidence Act has also shaped the practices of lawyers and judicial officers, by providing them with a framework to challenge DNA evidence from trial. Criminal justice practitioners have shaped their practices around the legislation to ensure that DNA evidence is admissible in criminal trials.
The belief that DNA evidence is the new gold standard of forensic sciences has created an environment where law enforcement agencies can routinely use the technology in criminal investigations. The following chapters examine the widespread nature of forensic DNA profiling and how its use has affected criminal justice practitioners.
122 CHAPTER SIX: THE PROLIFERATION OF DNA PROFILING
Chapters Two and Five suggested that DNA profiling is widely used in investigations and prosecutions in Australia and England. A number of statistics are provided in this chapter to examine the extent of the proliferation of DNA profiling in these criminal justice systems. This chapter then examines some of the indications and reasons for the widespread use of DNA evidence, including: the level of funding allocated to the technology; the preference for DNA evidence over other evidence types; and the belief of criminal justice practitioners that the public accept DNA evidence as a useful tool for prosecutions.
New South Wales
DNA profiling is used widely in the NSW criminal justice system. As a forensic tool, DNA evidence is at the forefront of the type of evidence that is collected and used in criminal cases. According to NSWP1, “DNA is on everybody’s lips … everybody thinks of DNA”. Similarly, DNA evidence:
… [is] something that is considered a requirement rather than a nicety, so its use is widespread, the expectation that it will be done is virtually mandatory … It’s seen as part of conducting a thorough and extensive investigation (NSWP4).
… plays a significant part in [the] detection of offences and in [the] prosecution of offenders. If it wasn’t available, well I guess that would to some extent hamper detection and prosecution (NSWJO4).
According to NSWJO2, “it is fairly common to have DNA evidence in a criminal trial now”, especially in the higher courts, and it is only challenged in a small percentage of cases (NSWD3).
In a number of NSW cases, for example, the Crown has successfully used DNA evidence to link an offender to a crime scene. In Regina v Holden [2007] and R v Stewart [2005] the appeals were based on sentencing rather than concerns about DNA evidence. Where there are challenges to the evidence, the appeals are usually dismissed.
123 In Sharwood v Regina [2006], for example, the defence unsuccessfully argued that the Crown expert should not have provided evidence because she was not involved in the process of creating the sample.
With the slow expansion in the legislative basis for taking DNA samples from defendants and prisoners; more people in custody are being sampled and more crime scenes are examined for DNA evidence (NSWD1). According to NSWDPP1 “it seems these days [that] every man and his dog gets swabbed” and since the introduction of the Crimes Forensic Procedures Act, it is now common for a police officer to ask a suspect or volunteer to provide a DNA buccal swab. The use of DNA profiling has become so widespread that one defence lawyer thought the process was “silly” in some cases. There have been cases, for example, where DNA tests have been requested from a murder weapon that was found in the suspect’s hands (NSWD1). In 2006, the NSW Police Force submitted over 32,500 exhibits for DNA analysis (NSW Legislative Assembly 2007 Motion: 1211). Perceptions of DNA profiling in NSW have been generally favourable in the past five to ten years because of the number of crimes it is thought to have solved.
TABLE FIVE: NSW POLICE DNA STATISTICS 2002-03 2003-04 2004-05 2005-06 Total DNA ‘Cold’ Links 1,988 2,842 3,268 2,651 Person Identifications 1,392 1,752 1,951 1,730 Scene-to-Scene 596 1,091 1,317 921 Average Weekly Links 38 55 63 51 Total Arrests 575 1,757 3,182 4,146 Total Convictions 346 1,154 2,250 3,424 Source: 2002-03 and 2003-04 taken from NSW Police (2004) Annual Report 2003-2004 pp. 81; 2004- 2005 from the NSW Police (2005b) Annual Report 2004-05 pp. 92; 2005-06 taken from NSW Police (2006) Annual Report 2005-06 pp. 97.
Statistics for NSW show an increase in the use of DNA profiling between 2002/03 and 2004/05. The use of DNA profiling for links and cold hits peaked in 2004/05 and declined in 2005/06.92 These figures reflect international trends associated with the use
92 Between 2002-03 and 2003-04 there was a 43% increase in DNA database cold links; 26% increase in personal identifications; 83% increase in scene-to-scene links; 43% increase in 124 of DNA profiling. DNA databases tend to achieve more DNA matches in the first few years of operation due to the opportunity to collect samples from offenders for the first time and link them to other crimes. Once the DNA data from a substantial offender population has been uploaded onto a database (and the database is no longer rapidly expanding), the potential for new cold hits is minimised until new offenders are identified (NSW Ombudsman 2006: 195-196). Although the number of hits and links has decreased, the number of arrests and convictions has steadily increased independently of the number of DNA links. This increase may indicate that DNA evidence has a more limited role to play in arrests and convictions than many criminal justice practitioners believe.93
Indicators and reasons for the widespread use of DNA profiling
Funding
The level of resources allocated to a technology will play a large role in determining how it is used, and the frequency with which it is used. NSW has provided substantial resources to forensic DNA profiling over the past few years. The criminal justice practitioners, however, had a number of complaints about the level of funding provided to forensic DNA profiling, and believed that with more resources they could use the technology more frequently and with greater effectiveness.
The Iemma Government allocated $2.27 billion for the police 2007/08 State Budget (NSW Legislative Assembly 2007 Motion: 1211). Over $9 million of this budget has
average weekly links; 205% increase in total arrests; 233% increase in total convictions. Between 2003-04 and 2004-05 there was: 15% increase in DNA database cold links; 11% increase in personal identifications; 21% increase in scene-to-scene; 15% increase in weekly links. The total arrest charges were in relation to 3 680 offences in 2004-05. Between 2004-05 and 2005-06 there was: 19% decrease in DNA database cold links; 11% decrease in personal identifications; 30% decrease in scene-to-scene; 19% decrease in weekly hits. The total arrest charges were in relation to 4,702 offences. 93 One of the limitations of both the NSW and Thames Valley police statistics in this study is that they have a lack of appropriate comparators. For example, it is difficult to assess the relevance of the offender database and the number of “matches” that have led to a successful prosecution. In addition, the statistics do not indicate whether suspects are being sampled to investigate a specific offence or for the purpose of including them on the database. 125 been allocated to funding forensic and DNA profiling, with a specific focus on crime scene officers and SOCOs (NSW Legislative Assembly 2007 Motion: 1211). According to Mr Khoshaba MLA (NSW Legislative Assembly 2007 Motion: 1211):
One of the most exciting parts of that spending is the boost to DNA technology. Advances in DNA technology and investigative techniques are powerful weapons in the fight against crime.
The budget includes provisions for $1.4 million for robotic DNA analysis platforms, which should increase the turn-around time in laboratories.
At the time of these interviews, there was only one state-funded laboratory in NSW. Due to the increasing workload of the laboratory (which will be discussed in Chapter Nine), the NSW government has recently outsourced samples to a privately contracted company. The government has also created an additional police laboratory. The state- owned laboratory is funded and controlled by the NSW Health Department (approximately $0.9 million) and receives additional funding from the NSW Police (approximately $4.1 million) (NSW Ombudsman 2006: 52). The NSW Police pay the laboratory on a lump sum basis rather than for individual casework (NSW Ombudsman 2006). Currently, a single DNA sample costs $500 to profile (NSWSOCO4). In December 2000, the NSW Police and the laboratory entered a Deed of Agreement for three years, in which the laboratory agreed to conduct testing, provide reports to the NSW Police, give evidence in court, and create the DNA database (NSW Ombudsman 2006). The defence use the government laboratory on a fee for service basis.
According to the forensic scientists and police in this study, the separation of funding for forensics has created a number of problems. One of the main problems was that because the laboratory was controlled by the Health Department, the allocation of funding was based around patient care models, such as how many beds were required. As these were not relevant to the activities of a forensic laboratory, the amount of funding provided is too low (NSWGS3). DNA profiling has become so widespread in the NSW criminal justice system that the existing resources are not coping with the
126 demand. Currently, DNA tests in NSW are delayed with an extensive backlog in the Government Laboratory (this will be discussed in Chapter Nine).
The situation has escalated to the extent that some samples have been sub-contracted to other laboratories within and outside of Australia (NSWD2), and the NSW Police have recently established their own laboratory (NSWP5). In 2005, the NSW Government promised $26 million for a new police forensic centre and 147 additional forensic officers (NSW Ombudsman 2006: 53). Towards the end of 2006, this new police laboratory was established in Pemulwuy (in Sydney’s Western Suburbs).
Prior to 2008, cases that required specialised techniques or a rapid turn-around time for results were outsourced to laboratories within Australia and the UK and US. NSWGS2 believed the process of outsourcing samples was a waste of time and money:
They’d rather spend the money there than give us the money. Queensland went down that path, they said to fix their backlog problem they would outsource but they looked into it and said no we’d be much better off giving the lab the money and letting them do it because they have the staff.
In January 2008 the NSW Police Minister, David Campbell, announced that criminal DNA tests would be outsourced to the private company in Sydney - Genetic Technologies Corporation - in an effort to reduce the backlog in the NSW government laboratory. Campbell claimed, “this outsourcing project will support our forensic police and help continue to drive down crime” (2008 cited in Baker 2008). The shift towards outsourcing samples will allow the police to test an extra 30,000 samples over the next three years (Baker 2008). The government laboratory will be mainly responsible for serious crime, while the Genetic Technologies Corporation laboratory will test samples from volume crime cases, such as break and enters. For NSWGS2 the contract, worth four billion dollars a year, would produce greater results if it was invested in the government laboratory where they could obtain more robotics and staff, rather than spreading the resources across multiple laboratories.
127 The State’s response to establish a new laboratory and outsourcing samples illustrates the increasing widespread use of DNA evidence in NSW criminal cases. It also indicates that the State will be forced to continue providing more resources to DNA evidence if it is to be used more effectively and more routinely. Complaints from the NSW scientists suggest that these changes are likely to be insufficient and that the new developments should have been made in consultation with criminal justice practitioners.
DNA evidence compared to other evidence
For NSWSOCO4, DNA profiling has replaced the older, “lengthy”, “cumbersome”, and indiscriminate methods of identification, such as blood sampling and blood typing. In support of this belief that DNA is replacing other types of evidence, statistics suggest that DNA evidence is taken more frequently from suspects and volunteers than other forensic techniques, such as photography, fingerprints, and ‘other’ procedures. Table Six illustrates the fact that DNA samples constitute 77 percent of the forensic procedures conducted on suspects and 91 percent of the procedures conducted on volunteers. Photography was the second most common forensic procedure. According to the NSW Ombudsman’s Report (2006: 57), the number of DNA samples taken from volunteers and suspects could have been greater than those presented in Table Six because the NSW Police advised the Ombudsman that they had submitted 9,618 DNA samples from suspects and volunteers, not the 8,123 that Forensic Procedures Implementation Team (FPIT) reported.94
TABLE SIX: TOTAL NUMBER OF FORENSIC PROCEDURES CONDUCTED IN NSW BETWEEN 1ST JANUARY 2001
AND 31ST DECEMBER 2004 DNA Photo Fingerprints Other Total Suspects 7,309 1,719 120 307 9,455 Volunteers 814 39 29 11 893 Total 8,123 1,758 149 318 10,348 Source: COPS download data provided by FPIT on 15 July 2005 cited in NSW Ombudsman (2006: 57).
94 This could indicate that multiple samples were collected from the one suspect accidentally, or that the officers taking the samples are not following the correct procedures on the police database COPS. 128 There are, however, no statistics publicly available on the comparative use of DNA evidence and other types of evidence from crime scenes in NSW. One NSW SOCO provided rough figures of the success rate of DNA samples and fingerprints collected between 2001 and 2004 (the civilian SOCO program started in 2001). In that four-year period, the NSW SOCO reported, “DNA is pretty much matching the number of fingerprint hits we get”. The limitation to collecting more DNA evidence stems from the lack of funding that the government provides the police and the restrictions placed on the number and type of samples that can be collected (NSWSOCO2). Another NSW SOCO believed that the collection of fingerprints and DNA evidence from crime scenes was comparable and that both were collected at approximately 90 percent of volume crime scenes.
Most of the practitioners reportedly viewed DNA evidence as “just another tool” that should be used with other more traditional types of evidence (NSWP1; NSWGS2). According to NSWDPP3, DNA is “just another piece of evidence like ballistics, handwriting, and fingerprints. It’s no better or worse”. For the practitioners, the value of the evidence will often depend upon the circumstances of a case. For example, fingerprints will be more beneficial if found on a fixed surface, rather than an item that could be transported to a crime scene. Likewise, the value of DNA evidence can surpass fingerprints if evidence such as blood is found on a surface that cannot be transported (NSWSOCO5). However, the value of DNA evidence found on a baseball cap from a murder scene will be diminished if the owner argues that the cap was stolen a week prior to the offence (NSWGS3). Any type of physical evidence needs to be treated in a similar fashion in terms of the identification, collection and management (NSWP1).
The claims of the NSW police officers in this study that DNA evidence is “just another tool” was recently challenged by the NSW case of Joey de Mesa, where police officers ignored other types of evidence until the DNA results were produced. In this case, de Mesa presented himself, voluntarily, to the police to assist their enquiries into a series of sexual assaults. The police arrested and charged de Mesa with the offences, despite his claim that he was on closed circuit surveillance at his work at the time of the assaults. The police officers refused to follow this line of enquiry until DNA results were
129 obtained. Consequently, he was held for two days before the DNA evidence cleared him of involvement in the offences. Detective John Kerlatec stated:
I would have no doubt that any investigator would do the same thing. Without the forensics you would be 100 per cent confident the right person was arrested and charged – that’s how emphatic and compelling the evidence was (cited in Jensen and Emerson 2008).
Interestingly, the police were unable to say what this “compelling evidence” was (Jensen and Emerson 2008). This case provided a clear example of police officers ignoring other types of evidence, which indicated that DNA evidence is no longer considered “just another tool”.
Like the above case, there was subtle evidence from the interviews to suggest that there was a preference for DNA samples over other types of evidence; despite the outward claims by officers that they treat DNA evidence like any other type of evidence. According to NSWSOCO2 and NSWSOCO5, there are two main types of evidence that are collected at crime scenes. The first is fingerprints and the second is DNA evidence. SOCOs would normally look at areas that an offender may have touched for fingerprints and areas where the offender may have cut themselves, smoked, or eaten for DNA samples. Every SOCO is expected to look for both fingerprint and DNA evidence at volume crime scenes (NSWSOCO2). Other types of evidence, such as footwear impression evidence, tool mark evidence, hair, and fibres may then be considered for collection in volume crime cases.
While the criminal justice practitioners in this study agreed that DNA and fingerprint evidence were the most reliable types of evidence, there was disagreement over which of these types of evidence was more reliable and effective. Some of the practitioners in NSW viewed DNA typing as a similar, but less reliable type of evidence than fingerprints. Fingerprints have the advantage of being presented as an uncontested piece of evidence in most cases, which makes it easier for the jury (NSWJO4). When forming their opinion, in general, fingerprints were seen as more reliable and stable than DNA evidence because:
130 There is still a lot of rigorous argument and challenges about the admissibility of it [DNA], the circumstances of how it was obtained … Well fingerprints, pardon the pun, but [they are] black and white … rival DNA (NSWP3).
NSWSOCO1 believed that DNA evidence does not “stack up against fingerprints” because of the uniqueness of fingerprints and the limited ability to transfer, either intentionally or innocently, a fingerprint to a crime scene.
Alternatively, other practitioners believed that DNA evidence is the most reliable and accurate form of evidence available. NSWGS2 believed that DNA is the “greatest new tool of this century really, if you say fingerprints were last century, then DNA is happening now”. One prosecutor claimed that DNA:
… has the imprimatur of science. And by that I mean to say it has the appearance of certainty. It is a bright light in the issue of whether there is a shadow of doubt. And you can shine it around your case; it limits the amount of doubt …
Practitioners consider DNA testing to be an objective and reliable method of proving beyond doubt that a person is connected with a crime scene (NSWDPP2). In addition, NSWD5 stated, “DNA has replaced fingerprints as the sort of crunch hit basically … fingerprints used to be the big killer until DNA came along. DNA’s much more certain”.
Even where SOCOs may have a preference for fingerprint evidence, they may be forced to prioritise DNA evidence. There were conflicting responses on whether there was pressure to find DNA evidence at a crime scene. Most viewed DNA evidence, as “one tool” of many that will be looked at, but not above other types of evidence. For example, NSWP1 said, “we don’t just look for DNA, we don’t just consider DNA, but it is something that can be very beneficial and very useful to an investigation, so yes you will look at it”. A number of the criminal justice practitioners reported feeling pressured to find DNA evidence above other evidence types, thus ensuring its routine use in criminal cases.
131 Some of the NSW SOCOs reported demands by police to find DNA evidence at a crime scene. One SOCO suggested that police officers often “lean” on SOCOs to get DNA swabs:
… because often you’ll go to a scene and the detective will be leaning on your SOCOs or me to collect and they’ll want door handles swabbed and this swabbed, and that swabbed. And they think it’s this magic bullet, you just hold onto the swab and the DNA jumps on it …
NSWSOCO4 also reported that police “go yeah, we want DNA from this, that and everything”. The emphasis on locating and collecting DNA samples from a crime scene can cause conflict between formal procedures and police expectations. For example, SOCOs are often confronted by police officers requesting six or seven samples to be taken from a stolen motor vehicle when they are only authorised to collect one sample. In the “interest of harmony”; the SOCO will often ignore the one sample policy and collect the extra samples (NSWSOCO1).
The use of performance reviews also ensures that NSW SOCOs routinely use DNA profiling. There is a formal expectation placed on SOCOs to find biological material that is useful for DNA analysis. The function of a senior crime officer is to review the performance of their staff. The performance review examines, on average; the number of crime scenes a SOCO attends in a day, how much evidence has been collected, and whether the samples produced results (NSWP4). The results of one SOCO are compared to the other SOCOs in that local area. Different Local Area Command (LAC) results are not compared in NSW because the NSW Forensic Service Group recognises that the levels of collection between LACs are very different.95 For example, NSWSOCO3 commented that:
But it depends on where you work. Because I know that when I worked at different LACs, I’d get a lot of DNA. Every scene I went to I was getting a lot of DNA, so either blood, or cigarette butts, swabs from drink containers, etcetera. Whereas at some LACs … I could go a few weeks without getting anything.
95 Other research has also found that there are differences in DNA collection and match rates across different police forces within an area (Williams 2004; Bond and Hammond 2008). 132 The difference in collection rates can be attributed to several factors. One factor is the geographical location and the conditions associated with it. An area that is exposed to sunlight, rain, or strong winds is less likely to yield useful DNA profiles. Another factor is the type of crime committed in a LAC. NSW crime figures demonstrate that the rate of offences differs across geographical areas (Goh, Moffatt and Jones 2007). The type of crime will affect how much DNA will be collected by a SOCO as some crimes are more likely to yield biological material than others.
Perceptions of public desires
The emphasis on the use of DNA evidence is frequently associated with growing public awareness of the technology. A number of prosecutors and police officers reported relying more on the technology because they believed that it was what victims and jurors wanted. Police officers are now asked by victims, “but was there DNA located?” (NSWP2). NSWDPP4, for example, thought that jurors saw fingerprints as “a bit passé” and that DNA evidence is exciting and new. NSWD1 expressed similar views when he said that jurors and politicians find DNA evidence “sexy”. NSWSOCO5 believes that members of a jury are more impressed by DNA evidence than fingerprint evidence:
… you talk to a juror and you say here is a fingerprint we found that matches this bloke and they say ‘yeah ok’, and then we found his DNA, ‘oh wow, you found his DNA, it must be him!’
NSWJO5 also believed that a jury was more likely to be persuaded by DNA evidence than any other form of evidence. One prosecutor makes sure that she introduces DNA evidence in opening submissions to ensure that the jury is aware that she has a “strong case” (NSWDPP5). This perception that jurors want DNA evidence ensures that prosecutors will continue to request tests, which in turn increases its overall use within the criminal justice system.
The belief that juries look for specific types of forensic evidence in trials has been referred to as the CSI Effect (Goodman-Delahunty and Tait 2006; Dartnall and Goodman-Delahunty 2006; Willing 2004; Roane 2005; Lovgren 2004; Cole and Dioso
133 2005; Glendinning 2004; Rincon 2005; McGuire 2005; ABC News Online 2005; Blankstein and Guccione 2005). The CSI effect relates to:
… the popularity of CSI, Criminal Minds, Crossing Jordan, and other programs that portray scientific and forensic evidence-gathering procedures to catch criminals; the ‘effect’ is the rise in expectations of real-life crime victims and jury members (Dowler, Fleming and Muzzatti 2006: 838).
One of the outcomes attributed to the CSI Effect is that the jury is more likely to convict where there is DNA evidence. According to the literature on the CSI Effect, juries are convinced, or overwhelmed, by the statistics of a DNA match presented by the prosecution.
Currently, the CSI Effect is largely based upon anecdotal evidence. However, a number of studies have looked at the phenomenon and found more rigorous evidence to suggest that it exists, at least in the prosecutor’s favour. In a study of mock jurors in America in 1995, Koehler (2001) found that juries were influenced by forensic evidence, and were more likely to convict where there is strong scientific evidence, including DNA evidence. Similarly, Goodman-Delahunty and Tait’s (2006: 104) work indicated that “the introduction of DNA evidence may result in more convictions than are warranted”. Rhonda Wheate’s (2007) study of mock jurors in three High Schools across the Australian Capital Territory (ACT) and NSW as well as two jury panels from the Supreme Court in the ACT, illustrated that mock jurors had a tendency to find the accused guilty where there was DNA evidence, even if the evidence was weak. Mark Findlay (2008) interviewed jury members in six trials that featured DNA evidence as part of circumstantial cases. He also found that the jury members over-rated the DNA evidence despite directions from the judge.
A case in the Delaware Supreme Court highlighted how criminal justice practitioners have begun to perceive the CSI Effect. In this case, the prosecutor complained to the jury that the “standard for guilt was no longer ‘beyond a reasonable doubt’”; instead the standard had been changed to “Can they meet ‘C.S.I’” standards” (Cole and Dioso 2005: 1). In an American study, 79 percent of a survey of American lawyers and judges
134 cited specific examples where they believed that the jury was influenced by forensic television programs (Robbers 2008: 91). In addition, 85 percent felt that the CSI Effect had changed their job, and in particular the time it took to explain DNA evidence to the jury (Robbers 2008: 95).
A number of criminal justice practitioners in this study complained about the CSI Effect and the jury’s treatment of DNA evidence. For example, NSWD5 complained that after the prosecution presents the odds of the accused being the offender as being 18 billion to one:
A defence lawyer can talk till the cows come home about the fact that another test on another string on another sort of series of tests on the more remote test may be an exclusionary test. It doesn’t work.
In this quote, NSWD5 argued that juries are blinded by the probabilities presented by the prosecution and are incapable of understanding that a test on more loci could exclude the person from suspicion. NSWD4 speculated that the population probabilities presented by the prosecution are “extremely coercive” and cause problems for defence lawyers because juries believe that “DNA doesn’t lie”. The defence lawyers lamented that jury members often seemed to accept the DNA evidence at face value.
Conversely, the CSI Effect allows defence lawyers to use the absence of DNA evidence to create “reasonable doubt” in a criminal case. Two NSW prosecutors stated that they now needed to request more DNA tests even where it does little to assist their case. For example:
… because the defence now make much of the fact, of the absence of DNA and where one would expect it, that is something we have to meet (NSWDPP1).
If you haven’t got evidence that goes to a DNA style of evidence it’s amazing how many defence counsel will raise that as a submission in closing statements to the jury, to the effect of ‘and you haven’t even got DNA evidence’. So immediately people think, ‘yeah I saw that series of CSI and I know they can do it’ and I think it’s a real cheap trick (NSWDPP2)
135 Some defence lawyers have approached SOCOs to enquire why there was no DNA collected from a scene (NSWSOCO5). The absence of DNA evidence can lead prosecutors to call scientific expert witnesses to explain why DNA was not located (NSWGS1).
Increased awareness about DNA evidence has led some defendants to request DNA samples in the belief that it may exclude them altogether from an investigation. NSWD4 described a case of child molestation where the accused volunteered to provide his DNA sample, to prove he was not the donor of a semen sample. The tests subsequently excluded the defendant as the offender. This case demonstrates the growing awareness of the power of DNA profiling to inculpate or conversely potentially exonerate those suspected of crimes.
A number of criminal justice practitioners discussed the growing awareness of offenders care in not depositing DNA at a crime scene.96 Some offenders are now wearing gloves as a preventative measure against leaving both fingerprints and DNA evidence where they touch objects (NSWP1). According to NSWP2, offenders are also aware of how difficult it is to prevent leaving DNA at a crime scene. This awareness has led offenders to try and explain to police why their DNA was at a crime scene innocently, instead of contesting the reliability of the reported DNA match (NSWD3). In one NSW appeal, Regina v Hore v Fyffe [2005], the defence raised the potential for the DNA evidence to be innocently transferred onto an item. On cross-examination, the Crown expert admitted that the DNA could have been deposited on a boot by picking it up at a different time.
Thames Valley
DNA evidence is used more widely and routinely in the Thames Valley, than in NSW. The Thames Valley Police have a “good” level of forensic performance (HMIC 2006), and in the latter half of 2004/05 the DNA recovery rate for the Thames Valley Police
96 Other practitioners believe that offenders are unaware of the potential for DNA evidence to link them to a crime. One defence lawyer stated, “a lot of offenders are particularly stupid. They will help themselves to the milk in the fridge and then leave it out … even those who have previously been, or had their DNA taken”. 136 was amongst the highest rates in the UK (HMIC 2005: 36). According to Asplen (2004: 1) “England is widely recognised as having the most effective and efficient approach to the use of forensic DNA technology in the world”. For TVSOCO4, “in this county, it’s [DNA] widespread; it’s a very everyday thing now”. The significance attributed to the proliferation of DNA profiling by some criminal justice practitioners, is demonstrated by TVP1’s quote. He argued that, “If they took DNA away we would be back in the Dark Ages in terms of how investigations go” (TVP1). TVFS4 describes the reason for the reliance as:
… being driven by the police and their need to increase clear up rates, they know that half the profiles they get in a crime case will give them a name straight away on the database. It’s, from their point of view, paying a few hundred pounds for a DNA profile is a very cheap way of getting a case finished.
The proliferation of the technology is partly due to the more extensive legislation governing the use of DNA evidence in England, the level of funding devoted to the technology, and the perceived widespread public acceptance of the technology.
Table Seven supports the practitioners’ views that DNA profiling is widely used in the Thames Valley, although the table also indicates that the usefulness of DNA evidence is limited.
137 TABLE SEVEN: THAMES VALLEY POLICE DNA STATISTICS Number Detections of DNA matches (crimes) 130 Additional offences detected due to DNA match TIC* 348 DNA intelligence match lead to other evidential evidence 8 DNA ‘match’ but needed more supporting evidence 1,108 (year) DNA ‘match’ does not progress investigation 2,281 (year) DNA ‘match’ but investigation not pursued (may belong to aggrieved or friend) 63 Crimes with DNA ‘match’ in progress – Up to 1 month 32 Crimes with DNA ‘match’ in progress –1-3 months 46 Crimes with DNA ‘match’ in progress – roll in year 123 Source: Raw numbers obtained from LOCARD, accessed through Crystal Reports by Thames Valley Police Headquarters accessed September 2006. NOTE: These statistics were created for another purpose and did not specify the exact time period for some of the categories, although it is known that it is in the period of 2005-2006. It is likely that the number of matches, TICs and investigation not pursued in the table refer to the results for one month. * TIC – Taken Into Consideration. This is the process where an offender is later discovered to have committed more offences due to the first arrest and DNA sample taken in custody.
The statistics presented in Table Seven illustrate how DNA matches were used in the Thames Valley in 2006. A number of DNA matches were made, however the main power of DNA evidence appears to be the ability to clear up multiple crimes through the process of taken into consideration (refer to Table Seven). The DNA match rate is dependent on what evidence a SOCO has submitted and whether that person is then sampled in custody (TVCO). Contrary to the criminal justice practitioner’s perceptions, the yearly figures suggest that there are a large number of cases where DNA evidence does little to support or advance the progression of an investigation. This supports Blakey’s (2002: vii) argument that a number of UK police forces have difficulty turning identifications into detections.97 This difficulty in converting identification significantly limits the usefulness of DNA evidence.
The Thames Valley Police Headquarters staff, and in particular the Forensic Submissions Unit (FSU) have provided continual support for police officers conducting forensic procedures. For example, the FSU has established a procedure where police officers can call the FSU throughout the day to enquire about the correct procedures for
97 It has been suggested that the skill of an investigating officer will affect the ability to convert samples into detections (Bond 2007: 132). This issue will be discussed in more detail in Chapter Eight. 138 collecting, submitting, and destroying DNA samples (TVCO). According to TVCO, the Thames Valley police:
… are one of the lowest in our failure rates, in our error rates, one of the highest with our submission rates … the Police Standards Unit said we’re great … and I think it’s just the way DNA has evolved; and also the way that we’ve made it evolve. We could sit back and just do the bare minimum; we do a lot more here, than say another Forensic Submissions Unit would do in another force …
As TVCO stated, the Thames Valley police actively created an environment where DNA profiling had become a major component of criminal justice practice.
In the Thames Valley, officers tend to “over-sample” people in custody, which has created duplications on the database that need to be destroyed (TVCO). In 2003/04, there was an 89 percent match success rate on sampling individuals from custody (TVCO).98 The Thames Valley unofficial policy is that it is preferable to take a sample from a person when an officer is uncertain of the policy, than to discover after the person has left custody that a sample should have been taken.99
Indicators and reasons for the widespread use of DNA profiling
Funding
The United Kingdom allocates substantial resources to the forensic sciences, and DNA profiling specifically. According to Williams and Johnson (2008: 45-46):
The commitment of the Home Office to fund research into DNA profiling, by directing the FSS to develop adequate systems for effective DNA casework in support of police investigations, was both central to the initial success of the technology and also a deliberate strategy to further its potential use.
98 The TVCO justified that this figure was reasonable because no police force would ever be one hundred percent compliant with the submission policy of DNA samples. 99 This undermines PACE – under PACE a person charged with an offence needs to be sampled within 28 days and it is a violation to ask a person to submit a sample when one has already been obtained. 139 The Home Office has continually supported the use of DNA profiling in criminal cases by providing police with substantial resources to use the technology. For example, in 2006 the Thames Valley Police forensic science budget was £5.9 million (TVCO). As the cost of some forensics such as fingerprint analysis, footwear, and document analysis is absorbed into the normal staff processing costs (a separate budget), the majority of this money can be devoted to DNA sampling (TVCO). Each DNA test costs approximately £280 (TVP6).
The amount of money dedicated to a particular crime depends on the type of crime committed. The Thames Valley Police has devised categories of crime to determine the amount of money that should be allocated to a particular type of offence. Category A offences, which include the more serious crimes, are allocated £50,000, and most crimes in lower categories are allocated between £10,000 to £15,000 (TVP6). However, the more serious crimes are not constrained by a budget. One major criminal case in 2006 cost approximately £280,000 (TVCO). The SOCOs are responsible for choosing how many, and which samples are submitted to the laboratory, based on the budget. For example, individual SOCOs in the Thames Valley can authorise forensic work to the value of £3,000, which will normally cover a volume crime investigation. A senior SOCO can authorise forensic work to the value of £7,500.
DNA evidence compared to other evidence
Although DNA evidence is a relatively new form of forensic evidence, it is now routinely collected. Table Eight indicates that fingerprints are still the dominant form of forensic or physical evidence taken from crime scenes. In the Thames Valley, there were more fingerprints collected, loaded onto the database, and submitted to the laboratory for analysis than either DNA samples or footwear marks. This may reflect the relative cost of each procedure. Statistically, DNA evidence is not used as frequently as latent fingerprints, but it is used on a regular basis and collected more frequently than footwear marks.
140
TABLE EIGHT: THE THAMES VALLEY POLICE USE OF DNA IN COMPARISON TO OTHER EVIDENCE Type of evidence Crimes where Crimes where Crimes where potential material evidence was loaded evidence was collected onto a database submitted to the laboratory DNA 727 361 706 Fingerprints 1,605 1,724 2,259 Footwear marks 599 574 - Source: Raw numbers obtained from LOCARD, accessed through Crystal Reports by Thames Valley Police Headquarters for the period of 1st April 2006 to 30 June 2006. Note: The figures in the rows cannot be directly compared. The evidence loaded onto a database or submitted to a laboratory could be samples that were collected in a different quarter. As a result, these figures should only be compared in terms of the type of evidence in each different stage of the forensic process.
Similar to NSW, some of the Thames Valley practitioners believed that certain types of evidence were more useful than others. Some of the police officers argued that DNA evidence was substantially better than fingerprint evidence. For example, TVP1 commented:
So it reaches far further than we could normally reach with our enquiries … we can link them via DNA, then that’s irrefutable evidence that that person has committed each of those. It’s invaluable … far better than fingerprints to a certain extent because you can grow it.
Other practitioners, however, had similar views to the statistics presented in Table Eight; that fingerprints are the main type of evidence used in criminal cases (TVP1; TVSOCO1; TVSOCO3; TVSOCO4). For example, “I think getting fingerprints is number one really, quite hard to explain fingerprints away, and then DNA” (TVSOCO1). Like the reasons provided by the NSW criminal justice practitioners, the interviewees in the Thames Valley believed that fingerprints can provide more conclusive results than some DNA samples (TVP2). SOCOs are more likely to collect fingerprints because they can be analysed at the police station; this costs less money and is less time consuming (TVSOCO5).
TVFS3 raised a concern about the over-reliance on DNA evidence and the erosion of other physical types of evidence:
141 Because it is deemed so powerful, it does override other forms of evidence like chemistry, trace evidence, fibres and that sort of stuff, glass analysis, so a lot of that’s getting less and less funding, a lot of those disciplines are slowly, not evaporating but falling in, less people are being experts in that.
The decline in other evidence types and the focus on DNA evidence illustrates the extent of the widespread use of forensic DNA evidence. Both TVSOCO2 and TVFS3 are concerned about the shift away from other types of evidence, and the possibility that they will be used less frequently.
As in NSW, some of the Thames Valley SOCOs also believed that DNA evidence was the main type of evidence collected. This was the case, because of the pressure placed on them by the police and the senior SOCOs to find DNA evidence in preference to other types of evidence. As TVSOCO2 commented:
DNA is … always in the forefront of the media, solving old crimes and things, it’s the one they always seem to push, evidence types, say footwear, tool marks, fingerprints, tend to fall by the wayside, and not pushed as much as DNA.
In the Thames Valley there is pressure on SOCOs to find a variety of forensic evidence, including DNA material, fingerprints, footwear marks, and fibres. The Thames Valley Police review the performance of SOCOs quarterly. The performance development review (PDR) examines how quickly the SOCO attended crime scenes, the type of evidence that the SOCO collected at the scene, and the results of the submissions to the laboratory (TVCO). SOCOs are expected to collect a certain amount of DNA evidence from each crime scene. It is also expected that a percentage of the material collected will provide a result in the form of DNA profiles. Like NSW, different SOCO units in the Thames Valley achieve different levels of success. The SOCOs at Oxford were more likely to achieve a high success rate of fingerprint indents than DNA matches, because there were a number of ex-fingerprint bureau staff members in that team (TVCO). One of the SOCOs in Oxfordshire admitted that their preference was fingerprints because of their previous experience.
142 The introduction of performance reviews and the necessity to work with the police has meant that SOCOs will collect the type of evidence that the police want collected, rather than the type of evidence they think will yield the most viable results. While most of the SOCOs were unaware of pressure to find DNA evidence, others were annoyed by this focus on DNA evidence. For example:
This constant pushing, pushing, pushing, maybe the emphasis can sometimes be on spec [speculative] swabbing at every crime scene, and spec swabbing is a bit of a fishing trip, sometimes you’re lucky, sometimes you’re not, and it can be quite costly as well (TVSOCO2).
There was a general feeling that although DNA profiling is a very useful tool, its potential has been over-stated and its routine use is not always justifiable. SOCOs are required to follow the directions of the police and in some cases will collect samples that they believe are “pointless” to appease the officer (TVSOCO3). The focus on DNA profiling has resulted from a combination of its ability to solve cold cases and the attention it has received in the media, which then results in the “bosses” placing pressures on the SOCOs to find twenty DNA swabs a day (TVSOCO1).
Perceptions of public desires
A number of the criminal justice practitioners described the public’s attitude towards DNA evidence and how this in turn affected their own role. Similar to NSW, police officers in the Thames Valley explained how victims of crime would sometimes approach them and ask them to look specifically for DNA evidence (TVP3). Victims have become more aware of how DNA evidence can help the police investigate a case:
… everybody knows we [the police] can get DNA from body fluids like semen … I think that would probably give the victim some sort of solace to know that if that happened, and we’ve got DNA, then there is a good chance of us catching the offender (TVP1).
Offenders have also become more aware of DNA profiling in the last five to ten years because the police and prosecutors have used DNA evidence to a greater extent. TVP1 believes that “offenders are much more aware of it” and “if someone has left their
143 [cigarette] butt behind they know they will be chased”. TVP2 stated that “all the baddies know the significance [of DNA] too” because they have been convicted on it previously and learnt about it through the media.
This awareness by offenders has reduced the number of challenges to the validity and admissibility of DNA evidence. In the majority of cases examined in this thesis, DNA evidence was used to link an offender to a crime scene without challenges to the reliability of the evidence (see Regina v Priestly [2006]; R v Graham [2007]; Regina v McDonald [2007]; Regina v Rahman [2007]; Kelly, Andrews v Regina [2007]; Regina v Toora [2006]; and in R v Thomas [2006] and Regina v Kapya [2005] the appellants argued consent). Most of these appeals were concerned with the severity of the sentence or providing alternative explanations for the crime. None of these appellants denied that the DNA belonged to them. Limited judicial challenges to DNA evidence have contributed to the routine use of DNA profiling in the UK because police and prosecutors see it as reliable evidence that will stand up at trial. This assumption means that it will be collected, tested, and used as evidence in more and more cases.
Emerging from the Dark Ages
From the findings, it is clear that DNA evidence has become widely used within these two criminal justice systems. Both jurisdictions provided substantial funding to DNA profiling and ensured that SOCOs and police officers routinely collect DNA evidence. The Thames Valley devoted more resources to the implementation and use of DNA profiling in the criminal justice system, with a forensic science budget of £5.9 million in 2006 compared to $9 million in 2007/08 in NSW. However, the Thames Valley appears to have a slightly higher recorded crime rate than NSW for offences relating to violence against the person100 and some property offences.101 Despite the differences in the rate of crimes committed, the Thames Valley still provides more resources to forensic sciences than NSW when the geographical area and number of police commands (and officers)
100 In 2007/08, the Thames Valley rate for violence against the person were 20 per 1,000 population (Bangs, Roe and Higgins 2008: 160), and in 2007 the NSW the murder and assault rates were approximately 10.74 per 1,000 population (Moffatt and Goh 2008: 5). 101 In 2007/08, the Thames Valley rate for burglary was 10 per 1,000 population (Bangs et al 2008: 160), while in 2007 the NSW rate for break and enter dwelling was 6.96 per 1,000 (Moffatt and Goh 2008: 5). 144 are taken into account (see Chapter Four). The increased resources have meant that the Thames Valley police and SOCOs can use DNA testing more widely and routinely, than has been possible in NSW.
One of the main limitations to the expansion of DNA profiling in criminal cases, especially in NSW, has been the limited resources. Yet, only a few of the criminal justice practitioners recognised that in some cases the collection of DNA samples was a waste of resources (usually where there was police pressure). The limited resources have resulted in restrictions on the number of samples that can be collected (one in volume crime) and backlogs. These unintended consequences could have hindered the proliferation of DNA profiling. Instead, the NSW government is gradually devoting more resources to DNA profiling, especially in regards to robotics, out-sourcing samples and creating a new police laboratory. The creation of a new laboratory will result in the collection and testing of more samples, which will consequently result in the need for more laboratory staff and more laboratories. The increased injection of funds into the NSW forensic science budget demonstrates the government’s expectations and the desire to maintain the widespread use of DNA typing.
One of the reasons for the growth in the proliferation of DNA profiling in both the Thames Valley and NSW is the belief by practitioners and the general public that DNA is a strong, objective form of evidence. TVP1 observed that DNA evidence was “Fool- proof, very strong, and that is in scientific terminology. It’s as high as it gets, isn’t it?” TVP1 further believed that a case is strengthened with DNA evidence. Similarly, TVP3 believed that DNA evidence is “superb evidence” as long as it is not a mixed profile, and TVFS1 described DNA evidence as 99.9% conclusive. For NSWGS2, DNA evidence is widely perceived to be scientifically infallible because it has been “tried and tested; it’s robust, it’s reliable, it’s reproducible. The three R’s.” The acceptance of DNA evidence as a strong and reliable form of evidence has ensured that it is routinely used across the United Kingdom and NSW.
The acceptance of DNA profiling by criminal justice practitioners has meant that it is used routinely. TVP1’s statement that the police investigations would be back in the
145 “Dark Ages” without DNA evidence illustrates the reliance on the evidence and how other types of evidence are becoming seen as less important than DNA evidence. The majority of criminal justice practitioners in this study expressed this type of view, in a more moderate way. The view that DNA evidence is a superior form of evidence, coupled with the belief that jurors want DNA evidence, has ensured the continued proliferation of DNA profiling in NSW and the Thames Valley.
The perception of DNA evidence as an objective and reliable forensic tool has changed some of the processes involved in investigating and prosecuting criminal cases. Criminal justice practitioners are placing more emphasis on the technology and are becoming unaware of both its problems and the benefits of using other forms of evidence. This shift has caused some detrimental outcomes, as demonstrated by the NSW de Mesa case. In this case, de Mesa was unfairly detained for two days while the police awaited DNA results that would have been unnecessary if the police had examined the more traditional type of evidence: closed circuit surveillance system. It is important that the political or organisational desire to have DNA evidence - because it is perceived as the gold standard – does not control evidence collection procedures. Although DNA evidence is a useful forensic tool that can provide significant evidence, care needs to be taken that it is not over-relied upon and that the circumstances of the case dictate what evidence is important. As NSWP5 quipped, DNA evidence should not be used as the “be-all-and-end-all” of evidence types.
This chapter has examined a number of factors that have ensured the routine use of DNA evidence in criminal cases, and provided evidence to the widespread nature of the implementation of this technology. There are a number of other factors that point towards the widespread nature of forensic DNA profiling, which will be examined in later chapters. The following chapter examines the shift that has occurred from when DNA was originally reserved for serious crimes to its present application in volume crimes. This shift provides substantial evidence of the growing widespread use and acceptance of forensic DNA profiling.
146 CHAPTER SEVEN: DNA EVIDENCE ACROSS OFFENCE TYPES
Researchers, such as Michael Briody and Tim Prenzler, have suggested that there are differences in the use of DNA evidence across various types of crime. As the basis for his PhD dissertation, Briody (2005a) conducted an extensive study on the differences of DNA evidence in homicide, sexual assault and property offences in Queensland (QLD). Briody’s (2002, 2004, 2005a, 2005b, 2006) work provides an important resource on the use of DNA evidence in different offence types.
Unlike Briody’s (2005a) work, this thesis is less concerned with the statistical differences across different offence types in the use of DNA evidence; rather it focuses on providing an explanation for the actual differences, as well as the criminal justice practitioners’ perceptions of these differences. The participants from both jurisdictions did not initially perceive any differences between the uses of DNA evidence among the different offence types. DNA evidence was viewed as a tool to link offenders to crime scenes, regardless of the offence type. According to NSWP1:
Irrespective of what actual offence is being investigated, the DNA evidence itself still plays the same role. It either shows that something did occur, or somebody was or was not there … In-so-far as the actual differences of the offences, look, the only thing that may come into play is how far you take things, how much testing is actually conducted because of the seriousness of the crime.
Eventually, however, subtle differences in the use of DNA evidence in serious and volume crime cases began to emerge. NSWP1’s comments above, for example, highlight these differences in the use of DNA evidence across offence types.
Background
Initially, DNA evidence was reserved for the investigation of sexual assaults and homicides. With the development of more sensitive technologies such as LCN and short tandem repeat (STR) techniques, the use of DNA profiling has expanded to include
147 drug offences, property offences, and white-collar crimes where smaller samples of DNA material can be obtained.102 Some spectators originally believed that DNA profiling would increase the identification and conviction rates for suspects in all offence types, and in particular sexual assaults (Robertson, Ross and Burgoyne 1990).103 The increased use of DNA testing and evidence across a wider range of crimes demonstrates the versatility of the technology.
Despite the assumptions of Robertson et al (1990), Briody (2002: 24) found that DNA evidence had a minimal impact on allegations of sexual assault - only two percent of cases produced a DNA link between a sample and an accused. In contrast, the presence of DNA evidence in homicide cases increased the likelihood of the case reaching court by more than fourteen times (Briody 2005b) and in 78 of the 95 property offence cases where DNA evidence was available, the suspects pleaded guilty (Briody 2006: 388).104 These findings suggest that DNA evidence is more relevant in homicide and property offences than sexual assault cases, especially where consent is the main issue.
The UK Police Service has used DNA evidence in non-violent criminal offences since 2001 (Roman, Reid, Reid, Chalfin, Adams and Knight 2008: 3). One of the fundamental rationales for using DNA technology in volume crimes is based on recidivism. It has been argued that, in America, ten percent of burglars have committed more than 232
102 For example, in the past ten years DNA samples have been retrieved from discarded cigarette butts (Gray-Ray, Hensley and Brennan 1997; Olivier 2001); hair; saliva from chewing gum, drinking glasses (National Institute of Justice [NIJ] 2004), or from half-eaten sandwiches (Sweet and Hildebrand 1999); and from sweat on the inside of a cap or mask. 103 A number of studies suggest that Robertson et al’s (1990) claim has not eventuated. For example, Timoney (2005: x) argued that in 75% of rape cases in the US, the offender’s identity was already known by other means, eliminating the need for DNA analysis. Similarly, Taupin (1994: 122) argued that DNA profiling was “only crucial in a small percentage of cases” with the greatest impact on “stranger” sexual assault offences where consent was not an issue. In contrast, Wilson (2004) found anecdotal evidence that consent was still an issue in some stranger cases. Where DNA is used, it may have a minimal impact. Another issue affecting the use of DNA evidence in sexual assault cases is the low probability of offenders leaving semen on a victim, either because they did not ejaculate, had a vasectomy, or wore a condom (Dundes 2001; Holmes 1994; Easteal and Easteal 1990; Sandomir 2005). In addition, approximately only 7.8% of sexual assault offences are reported within the first week, resulting in the loss of evidence for the majority of cases (Briody 2002: 24). 104 As there are a number of other variables involved in guilty pleas it was difficult to attribute these results solely to DNA evidence. 148 burglaries a year (NIJ 2004: 1). It has also been suggested that the both the UK and Australian DNA databases have:
[The UK NDNAD] played a key role in volume property crimes. While the annual detection rate for domestic burglary is around 14%, when DNA is successfully recovered from a crime scene this rises to 48%. Eighty percent of detected burglaries result in charges, 88% of these resulted in a conviction (Home Office 2003b: 6).
DNA databases, both in Australia and the UK, were introduced and then extended, on the basis that they would target property offences like domestic burglaries and car thefts (Briody 2006: 1).
It was also widely believed that using DNA technology in volume crimes would assist the investigation of indictable offences because many offenders are repeat offenders who progressively move their way from less serious to more serious crimes (Aulinskas, Palm, Woodward, Pace, Coleman, Billie, Sheldon, Viet, Bruesehoff and Misner 2001). Aulinskas et al’s (2001) research was supported by evidence from the US National Institute of Justice that found that 52% of DNA from burglaries matched for hits against murder and sexual assault cases (NIJ 2004).
Similarly, the NSW Government and Police Force used figures produced from the UK to justify the expansion of DNA testing to include volume crime cases in NSW. For example, the NSW Police Operation Vendas used DNA testing as part of a wider project to target break enter and steal and motor vehicle theft, because they constituted two of the most commonly reported crimes in NSW (Jones and Weatherburn 2004). Operation Vendas increased the NSW police awareness of biological material at volume crime scenes and ensured the use of DNA evidence to investigate non-violent crimes.
Research studies from the US illustrate that DNA evidence has increased the number of detections for property offences. One research study found that biological evidence found at 201 New York burglaries yielded 86 DNA profiles and thus suggested several pattern burglaries (NIJ 2004: 2). In a more recent study in the US, Roman et al (2008: 3) found that where DNA evidence was processed in property crimes, there was:
149 …more than twice as many suspects identified, twice as many suspects arrested, and more than twice as many cases accepted for prosecution compared with traditional investigation; DNA is at least five times as likely to result in a suspect identification compared with fingerprints.
Identifying, collecting, and analysing DNA samples from volume crime cases is becoming a routine practice in countries like the UK, Australia, and to a more limited extent the US.105
Notwithstanding the rapid uptake and apparent success, arguments have been raised against the introduction of DNA profiling into the investigation of volume crime cases. Briody and Prenzler (2005), and Alessandrini, Cecati, Pesaresi, Turchi, Carle, and Tagliabracci (2003), for example, are sceptical about the usefulness of DNA in property crime cases. They are especially critical of statistics suggesting that matches between a crime scene and a suspect (or hits) based on burglaries have led to much higher cold hit rates on other crimes. In contrast, Webb, Smith, Brock, and Townsley (2005: 186-187) have argued that while it was “hard to find any evidence that the speedier capture of DNA-identified offenders has reduced burglary”, there was evidence that most volume crime offenders were prolific offenders and their identification through DNA evidence did lead to “their faster incarceration” for other offences.
Briody and Prenzler (2005) used international studies to argue that DNA was usually available in only three to five percent of reported burglaries, which limits its usefulness. In addition, the NSW study on Operation Vendas found that processing DNA samples did not reduce the amount of volume crime committed (Jones and Weatherburn 2004). One of the reasons for the limited use of DNA evidence in property offences relates to the inability to collect useful DNA samples from crime scenes. For example, British Scene of Crime Officers (SOCOs) attended approximately 57% of burglary scenes, with only a 2.5% DNA material yield recovery rate (Blakey 2000: 19). In addition, approximately thirty percent of DNA matches from volume crimes failed to produce a criminal charge (Webb et al 2005: 188). These findings suggest that while DNA
105 According to Roman et al (2008: 3), DNA analysis was “almost exclusively used to investigate violent criminal incidents” in the US. 150 evidence could be useful as corroborating evidence in a case, it may not assist the investigation in most property offence cases because material is unlikely to be found, and even where it is found, it may not match any of the suspect samples on the database. These factors restrict the usefulness of DNA evidence in volume crime cases.
New South Wales
The comparison of offence types using the database NSW police statistics on the use of DNA evidence highlight the levels of use across offence types. Table Nine illustrates that the number of hits on the DNA database (matches from a crime scene to suspect already on the database) for murder and sexual assault were considerably fewer than most of the property offences, reflecting the lower rate of occurrence of homicide and sexual assault offences. However, as a percentage, there are more DNA hits in murder cases than any other type of crime. Since 2001, there have been relatively few hits in all types of crimes, with the exception of break enter and steal. This reflects the relatively small size of the NSW database, which restricts the number of cold hits that can be achieved. As mentioned in Chapter One, the larger the database the more hits that will be achieved.
Although there are problems with the percentages presented in Table Nine, these percentages indicate that for most crime types, the use of DNA hits had a minimal role in the investigation of a crime. The highest percentage of hits was 12% for homicide, while most other crime types had hits in less than 2% of the cases. Despite this, Table Nine illustrates that DNA evidence is now used for a wide range of offences. For example, the NSW police can now link suspects to dangerous driving and fail to stop offences through DNA evidence found in vehicles. The broadened use of DNA evidence demonstrates a significant shift in formal policies in NSW to allow samples to be collected from a wide range of offences.
151 TABLE NINE: NSW DNA DATABASE HITS ON OFFENCES COMPARED TO RECORDED CRIME: NSW 2005 Offence Total DNA DNA Recorded Percentage of database hits database crime DNA database since hits in 2005^ hits in 2005/06 commencement 2005-06* to recorded of Database in crime 2005ˇ November % 2001* Murder 36 10 81 12 Attempt murder 14 4 51 8 Break enter and steal (BES) 7,143 1,509 77,584 2 Aggravated BES 194 59 - - Other Steal 121 29 44,109 <1 Robbery/Aggravated 140 46 5,152 <1 Robbery Armed Robbery 453 135 3,158 4 Home Invasion 27 7 - - Stolen Motor Vehicle 1,605 448 29,171 2 Stealing from Motor 794 208 54,616 <1 Vehicle Assault 40 14 71,718 <1 Aggravated Assault 40 12 - - Malicious Wounding 12 1 - - Sexual Assault 60 10 4,109 <1 Attempt Sexual Assault 5 1 - - Aggravated Sexual Assault 89 27 - - Malicious Damage 185 157 103,513 2 Malicious damage by fire 22 6 - - Firearms related 30 11 - - Drugs related 29 16 6,456 <1 Fail to stop 32 12 - - Dangerous driving 51 13 28,745 <1 Total 11,122 2,735 - - *Source: NSW Police (2006) Annual Report 2005-06; Appendix Two Forensic Procedures: pg 98. ^Source: Goh, Moffatt and Jones (2007: 22-25). The categories of crime and the time period are both different to those employed by the NSW Police in the 2005/06 Annual Report. ˇ As the categories used by the NSW Police Annual Report (2006) are not the same as those used by Goh et al (2007), these percentages only provide a rough estimate of how often DNA samples are used in criminal cases.
152 TABLE TEN: RESULTS OF ‘COLD LINKS’ BY OFFENCE TYPE 2002-2004 Offence Number of person Number of convictions identifications recorded* Murder 15 1 Attempted murder 3 4 Armed robbery 200 32 Aggravated robbery 55 3 Sexual assault 30 2 Aggravated sexual assault 35 18 Assault 13 3 Aggravated assault 13 3 Home invasion 13 7 Break enter and steal 2,917 1,512 Aggravated break enter and steal 73 27 Steal motor vehicle 589 229 Malicious damage 50 17 Steal from motor vehicle 286 166 Stealing 50 27 Total 4,342 2,051 Source: Information supplied by FPIT on 22 June 2005 cited in NSW Ombudsman Report (2006: 65). * “Convictions are recorded against the period in which identification occurred. The number of convictions may be higher than the other number of identifications because a person may be identified for one type of offence but convicted for another” (NSW Ombudsman Report 2006: 65).
The data provided in Table Ten indicate that all crime types have a high level of attrition between the stages of identification and conviction. Although the numbers of recorded convictions do not reflect the exact time period of the number of identifications achieved by cold hits, the numbers were lower for convictions in all but one crime category. The numbers of cold hits over a two-year period for each offence type ranged from three people in attempted murder to 2,917 people in break enter and steal. There was significant attrition in the number of convictions recorded for all types of crime (this is also evidence for break enter and steal offences in Figure Four).106 For example, there were only thirty-two convictions from two hundred DNA identifications in armed robbery. Similarly, from thirty identifications in sexual assault, there were
106 The number of convictions that DNA evidence has achieved, or assisted, is, at this, stage impossible to measure in absolute terms. There are too many variables that have not been recorded to be able to examine the causal relationship between DNA evidence and convictions. For example, there is no information on how many of these cases are lost because of: plea- bargaining; technical problems; or from the decision of the prosecutor to discontinue proceedings. Similarly, it is difficult to distinguish the impact of DNA evidence on the conviction rate from other factors such as: the strength of supporting evidence; or the arguments of the defence and prosecution. As Wasserman, Tully and Prenger (2000: 1) stated, “we know very little about how frequently [DNA] typing is being employed in cases where it is available and potentially useful, or what role DNA evidence plays in the cases where it is employed”. 153 only two convictions. Attempted murder was the only crime type to have a higher number of convictions than identifications, and then it was only marginal. The NSW Ombudsman’s Report (2006) attributed this to the possibility that the person was identified for another crime. In most of the crime types the number of convictions was almost fifty percent lower than the number of identifications.
FIGURE FOUR: COLD LINKS FOR OFFENCE OF BREAK ENTER AND STEAL BETWEEN JANUARY 2002 AND
DECEMBER 2004
January to July to January to July to January to July to June 2002 December 2002 June 2003 December 2003 June 2004 December 2004 January to July to January to July to January to July to June 2002 December June 2003 December June 2004 December 2002 2003 2004 200 566 471 619 468 593 Identification 162 416 370 457 362 364 Charges 213 452 396 454 381 382 Offences 172 368 324 354 195 99 Convictions
Source: Information provided by FPIT on 22 June 2005 cited in NSW Ombudsman Report 2006: 66. Note: “Convictions are recorded against the period in which the identification occurred” (NSW Ombudsman Report 2006: 66).
154 Figure Four provides a detailed record of the number of break enter and steal offences, cold link identifications, charges, and convictions between January 2002 and December 2004. From the middle of the year 2002, there was a substantial increase in the number of cold links for identifications and charges. This can be attributed to the change in NSW police protocols to allow them to formally collect DNA samples from volume crime cases. Between late 2002 and late 2004, the number of DNA cold link identifications remains fairly consistent. Similar to Table Ten, Figure Four highlights the high attrition levels of offences in the numbers of convictions for break enter and steal offences. The charges relate to the number of persons charged, rather than the number of offences each person was charged with, which is reflected in the offences category (NSW Ombudsman Report 2006: 67). However, where a person was linked to multiple offences through cold hits, each separate offence was counted, which explains why the numbers of identifications are greater than the number of offences and charges recorded in all of the time periods except January to June 2002. The number of convictions dropped significantly from July to December 2003 onwards. The NSW Ombudsman’s Report (2006: 67) attributed this decline to the number of un-finalised court hearings. Figure Four indicates that there was a relatively high level of multiple offending occurring, and that the police and courts could be dropping some of those charges, particularly if the offender entered a plea bargain.
Homicide, sexual assault, and property crimes Changes in NSW Police policies have affected several of the processes of a criminal matter. In the early 1990s, DNA profiling was reserved for the more serious crimes of homicide, sexual assault, and robbery, whereas in the past five years DNA analysis has had a role to play in all types of crime, and in particular cold cases (NSWDPP1). SOCOs collect DNA evidence from major crime scenes “on a daily basis” and they try to get swabs from all break and enters (NSWP3). SOCOs are directed to swab at break and enters because of the research done in the UK, which suggested that a high number of volume crime samples could be matched to suspects on the database. For example, NSWP3 believed that the UK was achieving 1,500 hits a day based on swabs taken from break and enters, and that NSW could achieve similar results with more resources.
155 The role of DNA evidence in a case will vary depending on the type of crime. NSWJO5 suggested the following differences in offence types:
Obviously [in] sexual assault cases it is often referred to and the effect of it is that it removes one argument from the accused; that is, he didn’t have sexual intercourse, or some form of sexual intercourse contact with the victim. Assault cases, generally it is not relevant. Murder cases it can be relevant where identity is an issue.
In the above statement, NSWJO5 highlighted the difference in using DNA evidence in sexual assault, assault, and homicide cases. Although this statement only provides one judge’s impression of the role of DNA profiling in the NSW criminal justice system, it provides evidence that there is a perceived difference in the use of DNA evidence in criminal cases.
According to the previous quote (from NSWJO5), the main role of DNA evidence in homicide cases is to identify an unknown suspect. In murder cases where the identity of the assailant is known, DNA may have a limited role to play. However, as the judicial officer and a number of the lawyers recognised, most homicide cases will include DNA evidence whether it was relevant or not. According to NSWDPP2:
… it is normal to have DNA evidence as part of the [homicide] brief. Normally because there is blood and obviously if an accused person’s blood is found on the victim or the victim’s blood is found on the accused, it can be very compelling evidence.
This belief that it is “normal” to have DNA evidence suggests that DNA is used routinely in homicide cases, even where the evidence is unnecessary to prove identity. NSWD1 believed that in the “vast number of homicides, it’s not an issue of who done it, it’s how and why”. In these cases DNA evidence may be irrelevant.107
The use of DNA profiling has altered the investigation and prosecution of sexual assault cases. Sexual assault kits, with swabs for collecting samples, are now a routine part of most sexual assault investigations (NSWDPP2). According to NSWDPP4, DNA is
107 Although in some circumstances the testing of DNA samples - where the offender is already known - may be beneficial because it could link them to past offences. 156 “invariably” present in sexual assault cases. NSWD4 and NSWD5 believed that the discovery of bodily fluids would change both the nature of sexual assault cases and also the defences open to a defendant. Specifically, DNA evidence will eliminate certain defences and often change a defence of “I wasn’t there” to one of consent. NSWDPP1 believes that there is a general misconception that DNA evidence will assist a sexual assault case more than it can. The role of DNA evidence in sexual assault cases can be limited if the issue does not concern the identity of the assailant.
For NSWDPP1, the use of DNA evidence can be restricted in sexual assault cases if the offender wears a condom or fails to ejaculate. This issue has been repeatedly raised in the literature (Dundes 2001; Easteal and Easteal 1990; Sandomir 2005). In many cases, the victim cannot remember if the offender ejaculated or wore a condom because of the trauma of the event. In these cases, DNA evidence may not be available for testing. Some sexual assault cases will involve blood, saliva, or hair samples that can be used in DNA tests. In some instances, the prosecution will decide that without DNA evidence a case cannot proceed. NSWDPP5 explained that in cases where the victim’s statement is uncorroborated and her version of events is considered unreliable the case will usually be “dropped”. The decision to not proceed with some cases supports Holmes’ (1994) theory that DNA evidence could lead to the oppression of victims, to the extent that victims may not be believed without DNA confirmation. In cases where identity is not an issue, the prosecutor may still introduce DNA evidence to pre-empt the defence team “using it against you” in court (NSWDPP5).108
The investigation and prosecution of volume crime cases now include the routine use of DNA profiling. For example, NSWDPP2 stated:
Often in break and enters, DNA is increasingly used because blood is found on broken windows and there’s a lot of database hits … your broken window with blood for a break and enter, it’s a fairly obvious thing to ask the lab to test.
The success of database matches in volume crime cases has reinforced the idea that DNA profiling should be used in all types of crimes. Some of the NSW practitioners
108 This was discussed in the previous chapter. 157 believed that the introduction of DNA profiling has contributed to an increase in the number of volume crime cases cleared. For example, NSWSOCO2 commented that:
…if in that four years we had not had DNA evidence and all we had was fingerprint evidence, on an annual basis we would have got, say, two and a half thousand, three thousand identifications less … which over four years is what, twelve thousand persons of interest, that we would not have identified, and given the recidivist nature of volume crime, that’s a huge contribution to law enforcement.
NSWDPP5 attributed DNA evidence with the resolution of property offences where the offender “couldn’t otherwise have been identified”. In the case of blood, it is fairly easy for the SOCO or police officer to identify it as a source of DNA and collect a sample. Burglaries usually provide some form of “helpful forensic material” that will assist the police to identify the offender (NSWDPP4).
Aside from these three categories of crime (homicide, sexual assault, and property offences), DNA evidence is used in a wide variety of other offence types, as the previous tables indicate. NSWDPP5, for example, discussed a case where an offender fled from a car that was involved in a “driving matter” and the police tested the DNA from the gear stick to prove the identity of the driver. Some of the practitioners, however, did not seem to appreciate the potential usefulness of using DNA evidence in these areas. According to NSWDPP1, DNA evidence would not be collected from a traffic offence, although Table Nine contradicts this belief. In the case of assault, NSWJO5 did not believe that there was a real role for DNA to play. The prosecutors generally contradicted this view. Most of the prosecutors wanted DNA evidence in all criminal briefs regardless of the issue at trial or the severity of the offence. The desire to have DNA profiles in all types of cases was evident in the collection of DNA evidence from a document or envelope in fraud cases (NSWP1). However, it was not a routine aspect of fraud cases and would only be considered if the matter was serious (NSWP5).
General differences between offence types and DNA evidence There are a number of differences in the use of DNA evidence across the different offence types. The main difference between offence types is that more resources are devoted to the use of DNA profiling in major crime cases because of the complexity of
158 the cases and the seriousness of the offence. There was also a perceived difference in the role that DNA evidence could play in relation to each offence type, especially in court. Generally, the criminal justice practitioners agreed that DNA evidence should be undertaken in all types of crime.
The scientists at the Government Laboratory noted the differences between the uses of DNA evidence across offence types. NSWGS1 believed that approximately seventy percent of the DNA samples sent to the laboratory were in relation to volume crime. The laboratory is able to analyse more volume crime scenes in a day than any other type of crime. For example:
… when I was in high volume, I could analyse twenty-five samples a day, twenty-five cases a day, so your average would probably be one hundred a month. In serious crime, you’re probably looking at twenty or thirty cases a month … Sexual assault … I’ve been doing about ten a month … Maybe, seventy percent high volume, ten percent sexual assault and twenty percent serious crime which involves murders and assaults and things like that where a person has been injured … (NSWGS1).
The samples submitted in volume crime cases are usually easier to analyse because there is only one sample to test and the source of the biological material on an exhibit is usually visible or obvious to a scientist (such as a blood stain on a window or saliva on a cigarette butt). The serious crimes, such as sexual assault and murder, take longer to analyse because the samples tend to be more complex. The samples are likely to contain mixtures of multiple donors and can originate from speculative samples (this occurs when SOCOs collect a swab from an area that they suspect, or speculate, contains biological material), which means there is less, or no, biological material to analyse. The ratio of crime types and DNA samples illustrates the shift away from reserving DNA profiling for major crime, to the routine use of DNA profiling in volume crime cases.
The main difference in the use of DNA evidence across offence types is the prioritisation of the offence and the need to include DNA evidence. According to NSWP3 “homicide and sexual assault would probably have priority over robbery”. The
159 priority is based upon resources and the complexity of the case. High priority cases tend to include cases that involve serial offenders or violent circumstances, or have created public concern or substantial media publicity.
In more complex and serious crimes there are additional issues that need to be explored (NSWP4). As a result, DNA testing may be used more routinely and widely in these cases. More complex cases will also mean that the police officers and crime scene officers will be required to spend a greater amount of time at the crime scene securing and collecting evidence (NSWP4). As NSWP5 commented:
I guess we are more thorough … we will take far more samples at a murder crime scene and spend more time examining that scene with a crime scene officer and other experts. At a break enter and steal offence perhaps the point of entry will be examined but it won’t be a complete search of the surrounds.
More time and resources are allocated to major crime cases. Crime scene officers will attend major crime cases, as opposed to SOCOs, because of their greater level of experience (NSWP5). In volume crime cases the SOCOs are limited to collecting one DNA swab. In comparison, scene of crime officers are able to collect multiple samples at major crime scenes (NSWSOCO5). More advanced techniques will also be applied in serious crime cases (NSWP4). For example, in property offences the police are unlikely to use chemical treatments that will destroy a person’s property, whereas in a murder or sexual assault case they might.
Most of the NSW criminal justice practitioners agreed that DNA profiling should be used in all types of crimes. For NSWD1, the question of whether DNA should be used in all offence types should be determined by the following principle:
If people are going to leave evidence at the crime scene then any form of evidence can and should be used against them.
The position of the defence lawyer highlights the acceptance of DNA profiling in criminal cases to convict offenders. In contrast, one judicial officer questioned the use of DNA evidence in all offence types because of the resources required (NSWJO5).
160 NSWD3 supported the opinion of NSWJO5, arguing that NSW did not have the resources to cope with the routine use of DNA profiling in all offence types, especially with the backlogs and shortage of scientists.
Thames Valley
The number of samples collected, analysed and submitted Like NSW, the use of DNA evidence in the Thames Valley varied depending on the type of crime that was being investigated. According to TVP2:
… there are probably one or two offences that it is almost impossible to convict without, if you take the likes of rape …
The view that a crime is “almost impossible to convict without” DNA evidence will alter the manner in which police and SOCOs examine a crime scene (which include bodies). In cases like rape, the police and SOCOs might be inclined to collect and submit more biological samples to increase the likelihood of conviction. Other cases may not be so reliant upon DNA evidence to secure a conviction. Table Eleven highlights the number of samples that were collected per crime type and how many crime scene samples were later linked to a suspect on the database. DNA evidence is more likely to form part of the investigation in serious crimes, and SOCOs are limited in the number and type of samples they can collect depending on the seriousness of the crime.
161 TABLE ELEVEN: THE THAMES VALLEY POLICE USE OF CRIME SCENE SAMPLES Crime Crimes where potential Crimes where scene DNA DNA material collected profiles matched CJ profile* Homicide 10 1 Rape 30 6 Robbery 31 8 Other violence 64 10 Other sex offences 11 1 Domestic burglary 215 83 Other burglary 108 64 Theft of motor vehicle 91 46 Theft from motor vehicle 44 30 Criminal damage 72 41 Drugs offences 9 4 All other recordable offences 42 25 Total 727 319 Source: Raw numbers obtained from LOCARD, accessed through Crystal Reports by Thames Valley Police Headquarters for the period of 1st April 2006 to 30th June 2006. * Includes data from other quarters. Matches may have been made during this quarter using evidence already processed in a previous quarter. As a consequence, care needs to be taken when comparing this evidence.
Table Eleven demonstrates that DNA evidence was collected mostly from domestic burglary (215), followed by other burglary (108 - this includes garages and locked storage facilities). DNA was less likely to be collected in drug offences (9), homicide (10) and then other sexual offences (11). The statistics are reinforced by the Home Office (2005: 20), which reported that approximately 88 percent of crime scene samples on the NDNAD are for volume crime offences, with only eight percent of serious crime case samples on the NDNAD. However, serious crime cases also occur less frequently than property crime, thus restricting the opportunity to collect DNA evidence.
Although the number of crime scene samples that match a criminal justice sample (or a suspect sample) includes data from more than one quarter, the numbers of hits for all offences are less than a quarter of the number of crime scene samples collected. For most offence types, the numbers of hits are substantially less than the number of crime scenes that yielded DNA material. However, the unidentified crime scene samples stored on the database may produce a hit at a later time. The statistics in Table Twelve indicate that the usefulness of DNA evidence is limited to the size of the database (as suggested by the previous chapter). These results support the beliefs of several of the
162 practitioners that the DNA database should include the wider population to maximise the efficiency and effectiveness of DNA profiling.
TABLE TWELVE: THE THAMES VALLEY POLICE USE OF CRIMINAL JUSTICE (CJ*) DNA SAMPLES Crime Number of people Number of CJ DNA Number of CJ DNA that submitted CJ samples submitted samples loaded onto DNA samples to TV to a laboratory for NDNAD police testing Homicide 7 3 3 Rape 60 41 31 Robbery 82 48 48 Other violence 1,128 873 784 Other sex offences 124 92 88 Domestic burglary 83 58 46 Other burglary 131 81 75 Theft of motor vehicle 95 50 50 Theft from motor vehicle 27 15 15 Criminal damage 664 497 454 Drugs offences 476 364 334 All other recordable offences 3,822 2,927 2,687 Total 6,699 5,049 4,615 Source: Raw numbers obtained from LOCARD, accessed through Crystal Reports by Thames Valley Police Headquarters for the period of 1st April 2006 to 30th June 2006. * Criminal Justice (CJ) samples refer to samples that are taken from suspects for a comparison to a particular crime.
Table Twelve provides the quarterly figures of the number of people in police custody in the Thames Valley whose DNA was sampled, how many of those samples were submitted to the laboratory, and how many samples were consequently loaded onto the NDNAD. Each of these three stages demonstrates the use of DNA evidence according to offence type, and the high levels of attrition in each category for all stages of the process. Table Twelve demonstrates that the highest number of DNA samples collected was in relation to all other recordable offences, and other violence.
The number of samples sent to the laboratory for all offence types in the same quarter was almost two thousand less than the number of samples collected from crime scenes. There are two potential explanations for this level of attrition. One explanation is that cases were solved without the need of a DNA sample, for example other investigative work may have excluded that person as a suspect, or the person may have confessed to the crime before the sample was sent to the laboratory. Another explanation is that the
163 DNA process was considered too expensive for a particular crime. However, the figures between the number of people sampled and the number of samples sent to the laboratory cannot be directly compared because some figures may include or exclude samples sent to the laboratory in a previous quarter.
The number of samples that were uploaded onto the NDNAD was more consistent with the number of samples sent to the laboratory. All of the samples submitted to the laboratory for murder, robbery, theft of motor vehicle, and theft from motor vehicle cases were subsequently uploaded onto the NDNAD. This consistency between these stages may demonstrate that samples taken from these types of offences are either of a higher quality or higher priority than other crime types. However, the other offence types suffered varying levels of attrition, with the highest attrition in all other recordable offences (2,927 samples submitted to the laboratory; 2,687 uploaded onto the database) and then other violence (873 samples submitted to the laboratory; 784 uploaded onto the database).
One limitation with this data is that the number of crimes committed in this period is unknown, as is the number of crimes that are not considered relevant for DNA testing. Table Thirteen illustrates the number of recorded notifiable offences in the Thames Valley between January and March 2006, three months prior to the statistics provided by the Thames Valley Police. Table Thirteen provides a basic comparison for the percentage of cases that use DNA evidence.109
109 Statistics could not be found for the same time period. As a result the comparability of the statistics is limited. 164 TABLE THIRTEEN: THAMES VALLEY RECORDED CRIME (JANUARY – MARCH 2006) COMPARED TO THE
PERCENTAGE OF DNA EVIDENCE COLLECTED FROM CRIME SCENES AND SUSPECTS (APRIL –
JUNE 2006) Crime Recorded Percentage of crimes Percentage of people Number where potential DNA that submitted CJ DNA January material is collected samples to TV police – March (from Table Eleven)* (from Table Twelve)* 2006 % % Violence against the person 8,527 <1 13 (includes homicide and other violence) Sexual offences (includes 509 9 36 rape and other sex offences) Robbery 505 6 16 Burglary (includes domestic 6191 5 3 and other) Vehicle and other theft 19,454 <1 <1 Criminal damage 9,746 <1 7 Drug offences 1,776 <1 27 Fraud and forgery 2,330 - - Other offences 436 - - All Crime 49,474 - - Source: Home Office (2006c): ‘Crime Statistics for England and Wales January – March 2006’ * This is a rough percentage because some of the categories have been combined. Both periods are also from 1st April to 30th June 2006.
Although the categories of crime in Table Thirteen do not correspond with those in Table Eleven or Table Twelve, the figures allow a basic comparison of the percentage of cases that use DNA evidence. In general, Table Thirteen draws attention to the limited number of crime scenes where potential DNA material is collected. DNA material was collected from more sexual offences (although this percentage was still small with only 9% of cases yielding potential DNA samples) than any other crime type.
Table Thirteen indicates that DNA material was collected from more burglary cases (5%) than violence against the person offences (less than one percent), which illustrates the growing use of DNA evidence in property offences. Among several explanations, the main reason for the different levels of collecting DNA material can be related to the numbers of crimes committed in each category. As there are more volume crimes
165 committed than serious crimes there are more opportunities for evidence to be collected from volume crime scenes.
The statistics in Table Eleven reflect the literature and the perceptions of the criminal justice practitioners that DNA evidence is more routinely collected from suspects of serious offences rather than volume crime. People suspected of sexual offences were asked to submit criminal justice samples most often (36%). Surprisingly, drug offences were the second highest percentage (27%). This percentage is surprising because the practitioners rarely spoke about using DNA evidence in drug offence cases. Overall, the table illustrates that DNA evidence is used more frequently in sexual assault cases than any other type of offence.
Types of samples collected The type of crime will affect the kind of biological material that is collected from a crime scene. The practitioners had definite views on what material could be collected from each type of crime; and the type of samples that SOCOs are authorised to collect are shaped by their understanding of DNA evidence. According to the practitioners and information provided in Table Fourteen, there were distinct differences between crime types and the type of evidence that was collected and uploaded onto the NDNAD. As expected there were common types of evidence across the offence types, such as blood and saliva samples. One reason for this is because there is an obvious area to recover sources from (Bond and Hammond 2008: 4). That is, SOCOs can easily identify bloodstains, cigarette butts, and chewing gum (that are likely to contain saliva), which make these types of samples easier to collect. In addition, because they are obvious sources of DNA evidence, they are likely to be un-contaminated because police will recognise their worth and seal off the relevant area of a crime scene.
Table Fourteen illustrates the most common types of DNA samples that are collected and uploaded, and the rate at which they are present in different offence types. The table also examines the number of sample types loaded onto the database.
166 TABLE FOURTEEN: CRIMES AND SOURCE MATERIAL OF DNA CRIME SCENE PROFILES THAT WERE LOADED
ONTO THE NDNAD - SECOND QUARTER 2006 Crime Source of DNA Saliva Blood Other Total Homicide 1 1 0 2 Rape 0 0 3 3 Robbery 2 1 8 11 Other violent crime 2 4 4 10 Other sexual offences 1 0 0 1 Domestic burglary 27 29 41 97 Other burglary 22 34 12 68 Theft of motor vehicle 31 9 11 50 Theft from motor vehicle 3 25 1 28 Criminal damage 11 46 9 63 Drugs offences 3 0 1 4 All other recordable offences 10 5 9 24 Total 113 154 99 361 Source: Raw numbers obtained from LOCARD, accessed through Crystal Reports by Thames Valley Police Headquarters for the period of 1st April 2006 to 30th June 2006.
The distribution between the sources of DNA evidence across the different offence types was uneven in most cases. There were some types of cases where the distribution was even, for example, in the case of homicide there was an even distribution between saliva and blood samples uploaded onto the database. This even distribution indicates that both sources of DNA are important in homicide cases. In contrast, in other crime types, the source of DNA was unevenly distributed. In the case of sexual assault there were no saliva or blood samples uploaded onto the database. The ‘other’ source of DNA in sexual assault most likely refers to semen samples. In the case of criminal damage, there was a relatively even split between saliva (11) and other (9) with a definite bias towards blood (46). In cases like rape and criminal damage the use of DNA evidence will definitely change the investigation of a case. Without the presence of a particular type of biological material, such as blood, DNA profiling might not be employed. Whereas in the case of homicide or burglary where all types of evidence are relatively common there is a greater likelihood of the SOCOs identifying some form of biological evidence at a crime scene.
In general, the practitioners held views that were consistent with the official statistics of the most likely source of DNA evidence uploaded onto the database. Despite this, the SOCOs complained that they were not informed of which types of biological evidence
167 are eventually uploaded onto the NDNAD. As a result, SOCOs were unaware of the types of samples that yielded the best results. For Tilley and Ford (1996: 17-19), feedback to SOCOs is important because it improves collection practices at crime scenes as well as building relationships between themselves and police. The collection and processing of DNA evidence could be improved if SOCOs and police officers were more aware of what particular samples yield profiles.
Different offence types and DNA evidence As already demonstrated, the number of samples collected, analysed and submitted to the NDNAD is affected by the crime type, as is the type of evidence collected. This section examines more closely the effect of DNA evidence on the investigation and prosecution of the following offence types: homicide, sexual assault, and volume crime.
One of the main differences in the use of DNA evidence across crime types is that police are now expected to use DNA evidence to solve serious crime (Speakman 1999: 7). Consequently, most serious crime cases will include some form of DNA evidence. Despite this, DNA evidence has affected homicide cases in a very limited manner in the Thames Valley. The same processes are employed in modern homicide cases as they were prior to DNA profiling. The main difference is that they can collect more samples and spend more resources on DNA evidence in homicide cases than any other type of offence (TVP2).
Sexual assault cases have been affected by DNA profiling to a greater extent than other types of crime (see Table Thirteen). According to TVP2, DNA evidence has changed the nature of sexual assault in the following ways:
… it’s about the only thing that will actually show that there was a sexual act. If there is the offender’s DNA in or on the victim … it’s always been a difficult offence to detect anyway, but it stopped people being able to say ‘No I haven’t been anywhere near that lady’. Which at least gives us the opportunity to explore …
This statement highlights how some practitioners perceive the use of DNA evidence in sexual assault cases as invaluable for an investigation. The belief that DNA is one of the only pieces of evidence that will corroborate a sexual assault complaint could create a 168 number of problems for victims of sexual assault who do not have such evidence in their case. A common response was to highlight that the presence of DNA evidence has changed the nature of most sexual assault cases to revolve around consent issues rather than identity issues.
Both Table Eleven and Table Twelve illustrate the growing use of DNA evidence in volume crime cases. The widespread use of DNA profiling has meant that police focus more on property offences to obtain DNA samples, which can be used to solve more volume crimes and also serious crimes (TVFS5). According to TVFS5 the introduction of DNA profiling has affected volume crime cases in a significant manner. For example:
So all the burglaries, all the car crimes, which wouldn’t have been investigated previously, partly because the crimes were sort of deemed too trivial and the police didn’t have the money to spend on them, and there wouldn’t be suitable samples for DNA profiling anyway, so now because we can get DNA from so many more items like cigarette ends and bottles, so the sorts of cases are viable … (TVFS5)
As a result of the improvement in DNA technologies, police can now obtain DNA profiles from exhibits such as cigarette ends and bottles, which are more likely to be present at volume crime scenes than other types of exhibits such as semen. The routine collection of samples from volume crime scenes was enabled when the UK government invested over £300 million over five years in the DNA Expansion Programme (Home Office 2006b). This programme aimed to increase the use of DNA evidence in volume crime cases. At the conclusion of this programme in 2005, forty-five percent of volume crime scenes were examined for DNA evidence by a crime scene examiner (Home Office 2006b). TVP5 was of the opinion that the programme has meant that the police now have more resources to deal with volume crime.
There are two other major differences in the use of DNA evidence in volume crime cases. First, SOCOs do not take control swabs of an area because the laboratory does
169 not examine them (TVSOCO4).110 The second concerns the restriction on speculative swabbing in volume crime cases (TVSOCO4). Both of these restrictions are placed on volume crime cases because of limited resources. Despite the results of the DNA Expansion Programme, the cost-benefit ratio was insufficient for the Thames Valley Police to justify the use of DNA profiling for speculative swabs or control swabs in volume crime cases.
The following two figures provide details on the use of DNA evidence in burglary cases for the Thames Valley between 2005-2006. The blue shaded area refers to the Most Similar Force (MSF) to the Thames Valley and the blue outer line illustrates the performance of the Thames Valley Police. In Figure Five, the DNA recovery rate and detections made from DNA matches in the Thames Valley are above the MSF. However, the number of DNA matches is considerably lower in comparison. The results of Figure Six are also very similar but more pronounced than in Figure Five. The figures illustrate the Thames Valley’s commitment to the collection of DNA evidence and ability to convert DNA samples into detections. However, the lower number of DNA matches indicates that there are problems with either the types of samples collected, the laboratory analysis of samples, or the offender is not yet on the database.
110 Control swabs are samples that have been collected (swabbed) from around the same area of the crime scene where biological material was identified. The aim of a control sample is to ensure the integrity of the crime scene profile (a quality assurance test) and to ensure that it has not been contaminated with other biological material or chemicals. 170 FIGURE FIVE: BURGLARY DWELLING DNA MONITOR 2005-2006
Source: FIU Performance Group Review provided by the Thames Valley Police Headquarters
FIGURE SIX: BURGLARY ‘OTHER’ DNA MONITOR 2005-2006
Source: FIU Performance Group Review provided by the Thames Valley Police Headquarters
171 The graphs are used to monitor the use of DNA profiling by the Thames Valley Police. Specifically, these figures are used by the Thames Valley Police to compare the use of the technology in the jurisdiction with a similar force with the aim of improving police and SOCO performances. The monitoring of the use of DNA evidence in burglary offences alludes to the expectations placed on DNA evidence in volume crime cases.
Most practitioners believe that DNA evidence should be used in all offence types if there are sufficient resources. This is exemplified by TVP4’s response:
In an ideal world yes, [but] in reality it’s cost involved. I know that when we send off samples, we need to be able to justify them in terms of public interest.
Here, quite explicitly, it can be seen that the use of DNA profiling in an investigation is based on a cost-benefit analysis. Other practitioners did not agree that DNA evidence should be used in all offence types. TVP5 believed that DNA profiling should not be used if a person was pushed or if a brick was thrown through a window because the DNA is not likely to be present and it is too “resource intensive” to try to identify DNA evidence in smaller cases.
Rethinking the limited resources provided for volume crime
The NSW and Thames Valley police have implemented a number of different procedures and policies to ensure the differentiation of DNA profiling across different offence types. Police and SOCOs in both jurisdictions have informal and formal guidelines on what type of evidence can be collected from different offence types. In both jurisdictions, SOCOs are officially limited to the collection of one sample in volume crime cases. Policies such as these limit and constrain the use of DNA profiling in both the Thames Valley and NSW criminal justice systems.
The use of DNA evidence in major cases was questioned by a number of the criminal justice practitioners. In particular, a number of the practitioners recognised that in homicide or sexual assault cases the role of DNA evidence is limited, especially where the identity of the offender is already known. In these cases, the resources devoted to the collection and testing of DNA evidence are unnecessary, and in NSW there are
172 insufficient resources to conduct these tests. However, DNA evidence may be included as part of a thorough investigation.
The uneven distribution of resources across crime types is the main reason for the difference in the use of DNA profiling. As practitioners in both jurisdictions explained, fewer resources were provided for volume crime cases. The main focus of DNA profiling is on the investigation of a major crime case, such as homicide or sexual assault. Criminal justice practitioners acknowledged that additional money was “thrown at” these types of offences at all stages of the criminal investigation. The implication of this resource imbalance is that volume crime cases receive less attention and resources, despite the increasing use of DNA profiling in these types of crime. Insufficient resources have had an effect on the recovery rate of DNA samples from crime scenes, which explains Briody and Prenzler (2005) and Blakey’s (2000) argument that volume crime cases have a low rate of recovery of DNA samples.
The limitation of resources will have a significant impact on levels of attrition. For example, as SOCOs are limited to collecting one sample from volume crime cases, the success of a DNA profile and match is wholly dependent on the one sample. However, in major crime cases where multiple samples are collected there is an increased likelihood of a profile being obtained. The statistics presented in the Tables and Figures from both the Thames Valley and NSW tend to support this proposition, especially in burglary (Thames Valley) or break and enter cases (NSW). The usefulness of DNA profiling is dependent on the level of resources devoted to it, the size of the database, and how the criminal justice practitioners use the evidence.
The expansion of DNA evidence into various types of crime illustrates the extensive use and acceptance of the technology by criminal justice practitioners. In addition, it reflects the “tough on crime” agenda of the current governments in NSW and the UK. Collecting DNA samples from less serious offences makes the government appear to be pro-active in the fight against all types of crime, and implies that no type of offence will be treated “softly”. In addition, as the previous chapter highlighted, victims are beginning to ask police if they will be collecting DNA evidence. This new trend has
173 meant that where police, or SOCOs, collect DNA from less serious offences, the victim and the public are more likely to feel that the crime is being taken seriously by the police, thus ensuring support for law enforcement agencies in the community.
However, while the governments have provided more funding to allow DNA evidence to be used in less serious crimes, they are still treating the technology according to business management structures. Police are using DNA evidence to appear professional and objective to the general public. The limitations on how many samples can be collected and analysed illustrate the business structure of justice. Unfortunately, there is a price attached to finding and convicting offenders, and the costs associated with DNA profiling have been standardised accordingly. Without increased funding this will not change. It may be worthwhile for both jurisdictions to re-allocate funding, from serious crime cases where the offender is already known, to volume crimes where the offender is unknown and can therefore provide more intelligence to a case.
One of the main ways that DNA profiling has impacted on both the NSW and Thames Valley criminal justice systems is its extended use in a variety of criminal offences. The introduction of DNA evidence has also impacted on a number of the criminal justice organisations, such as the police service and forensic laboratories, as well as the processes involved in securing a conviction. As Berger, Miles, and Miles (2001: 95) stated, “DNA testing has also brought about changes … by forcing laboratories and courts to rethink how they treat forensic evidence”. The following chapter examines in more detail how criminal justice practitioners use DNA evidence and how it has, in turn, affected their roles.
174 CHAPTER EIGHT: THE EFFECTS OF DNA PROFILING ON CRIMINAL JUSTICE PRACTITIONERS
This chapter examines how criminal justice practitioners use DNA evidence, and how its use has affected the processes involved in investigating and prosecuting criminal offences. The introduction of forensic DNA profiling has created a need for the individuals who work within criminal justice organisations and legal institutions to learn how to use and understand the technology and its results. Tilley and Ford (1996) found that one of the impediments to the effective use of forensic DNA evidence was the gap in forensic knowledge across criminal justice practitioners. This gap was attributed to the lack of training of some practitioners and the limited communication between groups. This chapter examines similar themes and analyses whether the level of understanding that practitioners have about DNA evidence affects how they use it and how it affects their role.
Background
Research has indicated that DNA evidence has significantly affected how criminal justice practitioners approach criminal cases. This section examines previous research on how police officers, lawyers, and judicial officers have been affected by the introduction of DNA evidence.
The process of conducting a police investigation has been shaped and transformed by DNA profiling. As Concar (2001: 10) stated “there’s no doubt DNA evidence is transforming police work – and mostly for the better”. Further, Gunn (2003: 152) argued:
Importantly, our front line officers also believe in the power of DNA intelligence and evidence. When they go to a crime scene now they are actively looking for cigarette buds, chewing gum, drinks cans, coffee cups, partially eaten food.
According to Prime and Newman (2007: 1) DNA analysis has “significantly improved police investigations” in the following ways:
175 • “Solve particularly difficult cases where all other investigative techniques have failed
• Provide clues where there are no witnesses
• Find application in an ever-expanding range of cases
• Reduce the number of wrongful arrests
• Increase the reliability of evidence
• Link together cases that otherwise could not be connected, such as local cases ranging from breaking and entering to homicide, multijurisdictional cases such as gang crimes, serial sexual assaults or murders, and major international investigations”.
As examined in Chapter Seven, the police are now using DNA evidence in a wider range of offence types and altering how they investigate crimes to increase the importance of DNA evidence (this will also be discussed in Chapter Nine).
As noted in Chapter Five, the creation of DNA databases has significantly changed how police can investigate criminal offences.111 DNA databases have allowed police to link suspects to crimes more quickly and more efficiently on a wider scale. For Rothstein and Carnahan (2001: 143):
The convicted offender data bank cases have uniformly declared significant government interest in identifying and prosecuting criminals and deterring recidivist acts, deterring and prosecuting unsolved and future criminal acts, preserving a permanent identification record for identifying felons who may have otherwise altered their identity, and improving law enforcement.
The creation of DNA databases has provided an invaluable tool that allows police to link convicted offenders to crime scenes and link crimes in a geographical area (Markey 2007; Anonymous 2004: 150; Gans and Urbas 2002: 3). Specifically, the use of
111 For more information on how DNA databases have affected the criminal justice practitioners in this study please refer to the discussion on the UK National DNA Database, the NSW database, and the CrimTrac database in Chapter Five. 176 databases has enabled police officers to identify and locate offenders where there were no previous suspects, to investigate older crimes where other investigative leads failed (Prime and Newman 2007), and to indicate when authorities are investigating the wrong suspect (Etzioni 2006:218).
For Pyrek (2007: 392):
DNA is one arena in which both the prosecutor and the defense attorney must stay abreast of current technology in order to accurately evaluate the scientific evidence presented in court and conduct efficient cross-examination … that necessitates further education and training of prosecutors and courts on how to successfully prosecute and understand cases containing a great deal of forensic evidence.
While there is evidence to suggest that lawyers are staying abreast of the current technology, there was little information about the training provided to lawyers or judicial officers on DNA evidence. Studies tend to suggest that lawyers are using DNA evidence frequently, and that it is changing how they approach cases (some of these issues were introduced in Chapter Six when discussing the CSI effect).
DNA evidence has offered prosecutors a new tool for the process of prosecution and plea-bargaining. For example, Kreeger and Weiss (2004: 1) found that “never before have prosecutors had a more powerful tool at their disposal for determining the identity of persons who commit crime”, and Savell (1991) believed that every prosecutor would “get his man” with DNA evidence. A recent study of American prosecutors by Prottas and Noble (2007: 312) found that DNA evidence was most often used in sexual assault cases, and played a significant role in some murder cases. This reflects the findings of a US study by Steadman (2002), which reported that prosecutors used DNA evidence routinely. Prosecutorial use of DNA evidence in the US rose from 25% in 1992 to 49% in 1996 (Tracey and Morgan 2000).
There is evidence to suggest that defence lawyers have been significantly affected by the introduction of DNA profiling. Dennis Lynch, a Barrister-at-Law in Brisbane, has argued that:
177 DNA evidence can be devastating in one way or another. If the issue is, who actually committed the crime, then DNA evidence will either incriminate or exculpate the accused. Then it’s just absolute, there’s just no getting over it (Dennis Lynch 1999 cited in Davies 1999: 60).
Lynch’s view demonstrates the extent to which DNA can change the nature of a case, especially for the defence counsel. One American lawyer stated “I get a sinking feeling when I hear a client has been fingered by a DNA test … Seems there’s not much I can do but negotiate a guilty plea” (cited in Thompson, Ford, Doom, Raymer and Krane 2003a: 16). The defence need to consider whether the DNA results are accurate, whether there is a reasonable explanation for the DNA being present, or even if DNA technology can help to exonerate a client (Thompson, Ford, Doom, Raymer and Krane 2003b; Edwards 2005).
Little is known about how judges use and understand DNA evidence. Justice Wood (2002) of the Supreme Court of NSW, emphasised in a speech that judicial officers need a comprehensive understanding of when DNA evidence should be held admissible and when the prosecutor’s fallacy was being committed. As judicial officers play an important role in determining the admissibility of evidence and expert testimony, their view or acceptance of DNA evidence will alter how other practitioners use it.
Knowledge and understanding of DNA evidence
This section provides a general overview of how the criminal justice practitioners in this study understand and use DNA evidence. Simon (1955) and Leckie et al (1996) have suggested that practitioners from different fields gather their information in a range of ways. Leckie et al (1996) found that individuals gathered new information and previous knowledge from colleagues, handbooks, and personal experience. Some of the criminal justice practitioners in this study, such as the police, SOCOs and scientists, are required to learn about DNA evidence as part of their job training. This training, or lack of training for the other groups, has been supplemented by knowledge gathered through on-the-job experience and autodidactic (self-taught) methods. The result of this combination has been a general level of awareness of the practical uses of DNA
178 evidence in criminal investigations and trials, without a thorough understanding of the technical aspects of the evidence.
Scientists, police, scene of crime officers, lawyers, and judicial officers have been required to acquire new information and skills to accommodate DNA evidence. As NSWP5 commented:
… with any new technology there has been a transition of that knowledge and that training has been needed.
There was little formal training for any of the participants except for the police, scientists, and SOCOs (the training of practitioners will be discussed later in this chapter). In NSW, criminal lawyers are required to complete a Mandatory Continuing Legal Education (MCLE) course, which sometimes covers DNA evidence. In addition to MCLE courses, the Office of the Director of Public Prosecutions (DPP) and the Public Defenders Office (PDO) have their own research team and the lawyers will also discuss within chambers the latest issues in relation to DNA profiling (NSWDPP4).
In both jurisdictions, the criminal justice practitioners’ main source of information arose from their day-to-day exposure to DNA evidence. The NSW and Thames Valley police officers argued that most of their knowledge was acquired from their on-the-job exposure to DNA evidence. Specifically, TVP1 commented:
We use DNA all the time, we sample daily. I keep abreast with most of the current stuff through live cases and through dealing with scientists from our forensic science service … I’ve been on various courses, which we’ve been spoken to by scientists, but in all honesty it’s on the job.
Two important points are illustrated in this quote. First, the police officer’s knowledge is continually influenced by on-the-job experience and contact with scientists. Second, on-the-job training is considered to be more useful by police officers (TVP1) than training courses because it offers practical experience that is focused on the problems of that particular case. This raises questions about the type of training course offered and the effectiveness of the programmes.
179
A number of the judicial officers relied solely on practical experience that was gained during a hearing. The knowledge they needed had to be given to them during a trial (NSWJO2; NSWJO5). As judicial officers were restricted in learning about DNA evidence through reading and adjudicating specific court cases they were presiding over, their knowledge of what DNA could achieve in a court case was often limited to the specific issues they had previously heard (such as the prosecutor’s fallacy or population statistics). One problem with on-the-job experience is that individuals can forget information. For example, NSWJO2 stated, “the problem is [laughs], I forget it from one trial to the next and have to be reminded”.
Most of the practitioners reported using journal articles, books, previous court cases, colleagues, and internet articles to increase their understanding of DNA evidence. As NSWP5 explained, “often we have to go out and seek the knowledge ourselves, which any good investigator should do”. Likewise, NSWD3 discussed the need for autodidactic methods to understand the terminology that is used, and how to break down the concepts so that juries could understand all that was involved.
Practitioners, who need information about a particular DNA profile or a technique that was used, will often contact the scientist who profiled the sample. Both the NSW and Thames Valley police officers frequently contact experts from the laboratories for advice and explanations. Some of the prosecutors relied on scientists to provide them with the information they need for a case or to direct them to articles they needed to read (NSWDPP5). For example NSWD4 commented:
I’ve called expert witnesses and they’ve briefed me on various aspects of DNA technology, in terms of my personal knowledge though it’s brief-by-brief event. So therefore my intellectual capacity in relation to regurgitating what someone has just told me is limited by time and briefs.
Laboratories provide direct information for practitioners in a way that allows the practitioner to understand a specific issue. This is an invaluable time saver for the
180 practitioner, who would otherwise be required to find that information from other sources.
Most of the criminal justice practitioners had a general level of understanding of DNA evidence and how it could be used in an investigation or prosecution. In both jurisdictions, the level of knowledge about DNA evidence was limited to the practical use of the technology in the process of an investigation or prosecution. All of the NSW and Thames Valley police and SOCOs were aware of the types of samples from which DNA could be collected; as well as how to preserve a crime scene and package DNA evidence with minimal contamination. However, some of the NSW lawyers raised concerns about how little some lawyers and judges knew about DNA evidence. For example NSWD3 stated, “there are definitely defence lawyers out there who don’t understand DNA evidence, and there are prosecutors out there who don’t understand it either”. Likewise, NSWDPP2 commented:
Look, prosecutors are usually hopeless at science, we all got into law because we were crappy at maths and crappy at science … [juries] are people who know absolutely nothing about it; judges who are absolute luddites and are not interested – or misinformed.
The clichés and anecdotal evidence that NSWDPP2 presented in the above quote are fairly pessimistic. One of the judicial officers conceded that he had little knowledge of DNA evidence: “I’m amazed that I managed to talk so long about something I know so little about” (NSWJO2). It is important for practitioners to understand DNA evidence, as NSWDPP4 argued “because you really can’t escape it; you’ve really got to know what it’s about”.
Criminal justice practitioners can use DNA evidence incorrectly when they have insufficient knowledge or a misconception about what the technology can achieve. In the following example, a lack of knowledge of DNA evidence led a prosecutor to commit the prosecutor’s fallacy. NSWDPP2 stated that prior to 2005-2006:
I have to say my knowledge was fairly basic, in that I hadn’t really comprehended until I looked at it very closely that DNA evidence wasn’t - and this is scary given that I’ve
181 led DNA evidence a number of times. Although I was always aware that the prosecutor’s fallacy in leading DNA in its correct form, the idea that it, it wasn’t somebody’s profile that was found, and we thought, well, it’s their DNA when it’s not – the profile is just consistent …
It is important for lawyers to understand exactly what a DNA match can and cannot achieve when presenting the evidence to a jury. As already mentioned, there have been several cases in the UK and NSW where prosecutors, judicial officers, and even police officers have committed the prosecutor’s fallacy because they have misunderstood the limitations of creating a DNA profile.
Among the practitioners interviewed for this study, there was limited knowledge of DNA technology and testing procedures. Most practitioners were unaware of how DNA samples were analysed. For example, NSWDPP1 said, “I certainly have never performed a DNA test in my life and I certainly wouldn’t know how to”. Despite this lack of knowledge of the technical details, most practitioners had sufficient knowledge of the implications of the laboratory report. In general, the practitioners were aware of what DNA evidence could offer an investigation or a trial, but not the scientific or technical foundations of the technology. NSWP5 explained the need to have practical, rather than technical, knowledge:
But I could imagine there is a wealth of aspects to it that I’m not over enough. As an investigator you need a good working knowledge, but it’s probably not as necessary to know the exact science of it, just the general limitations of it and how it affects our duties, because we use experts often to provide that evidence in court.
There was a widespread reluctance to learn more about the technology and the technological processes of DNA profiling because practitioners believed it was unnecessary for their specific roles. Rather, emphasis was placed upon how they could use the technology to assist their job.
The following sections provide information on how NSW and Thames Valley criminal justice practitioners use DNA evidence and how the introduction of DNA evidence has
182 affected their roles and procedures. In doing so, it looks more closely at some of the training provided and how each of the groups perceives their use of the technology.
New South Wales
Forensic biologists Forensic DNA profiling has created a new occupation within the scientific community; as now there is a need for certain scientists to create profiles and present expert evidence to the courts. DNA profiling has expanded the role of forensic biologists who previously conducted forensic tests, such as blood grouping analysis (Deedrick 2001). Now, scientists identify biological material that could yield DNA results and subject it to DNA analysis, mainly PCR (see Appendix Two). Other criminal justice practitioners also required scientists to appear in court as expert witnesses. The increase in the submissions of DNA samples has placed a considerable workload on scientists and generated a need for scientists to understand the legal implications of forensic tests (Walsh 2005a: 6).
The NSW Government Laboratory has established protocols for receiving and analysing forensic DNA samples. When the laboratory receives an exhibit from the police, the exhibits are assigned to a biologist who will determine the availability of biological material. This ensures the continuity of exhibits, which is necessary to meet chain of custody criteria. According to NSWGS5, this process is the most time consuming part of obtaining a DNA profile. The evidence item or exhibit will be screened for body fluids, such as blood, semen, sweat, or hairs, depending on the offence type and the way the case is described.
As only some of the exhibits are selected for testing, the scientists require additional information about each sample to determine the likelihood of an exhibit yielding a DNA profile. They obtain this information from the police report attached to the submitted exhibit. The form captures standard information on the details of what the crime was, the significance of the exhibit (for example the potential murder weapon) and what the police want the laboratory to look for in terms of biological material (NSWGS3). A number of the scientists in this study complained that police reports were often 183 incomplete or insubstantial. Where more information is needed, scientists are required to call the investigator and ask for additional information (NSWGS1). Occasionally meetings between scientists and police are convened to establish where DNA can be obtained, or if more items needed to be examined. The turnaround time for either volume or major crime samples in NSW can range from weeks to months (NSWGS2).
Where a positive reaction is found to body fluids, that section of the exhibit will usually be cut out and sent to the DNA section to be analysed. The DNA section of the laboratory will amplify the sample and analyse it using the technological system of Profiler Plus. In practice the original sample that is selected for analysis may not produce a full profile. NSWGS2 described the process of obtaining a DNA sample as:
…to-ing and fro-ing to try and get the best result you can. So sometimes a sample might have to go back to DNA [lab] three or four times before you get a decent result.
This process of to-ing and fro-ing creates additional work for the laboratory as they re- test different areas of an exhibit. The continual re-testing of samples creates more opportunity for contamination to occur and thus raises questions about the reliability of the results produced.
When DNA analysis was first introduced, scientists in the Government Laboratory were assigned one case each to analyse. Now, according to NSWGS2, the process has become streamlined, so that multiple people handle specific parts of the DNA profiling procedure. A DNA sample can be handled by as few as one or two scientists (NSWGS2) and as many as twenty different scientists (NSWGS5). Each process is logged so that it can be traced. DNA reports are validated by at least two senior forensic biologists. The NSW Government Laboratory has five senior biologists capable of validating a match (NSWGS5).
Scientists have been challenged by defence lawyers on their ability to present evidence, as seen in Sing [2002] and Sharwood [2006]. Scientists have been affected in three main ways by the perceived need to have expert evidence on DNA profiles at court. First, there are restrictions on who can present expert evidence in court. Laboratory
184 restrictions on expert witnesses are designed to ensure that the court perceives the expert as reliable. The NSW Government Laboratory will only allow senior forensic biologists to appear as expert witnesses. These scientists must spend time in the DNA section of the laboratory and pass a number of practical tests that demonstrate that they can reliably produce and interpret DNA profiles prior to giving evidence in court (NSWGS3).
The second way that scientists have been affected by the need to provide expert evidence is the minimal level of interaction with lawyers, prosecution or defence, prior to testifying. Scientists are often frustrated by the questions posed by prosecutors and police. NSWGS2, NSWGS3 and NSWGS4 complained that lawyers often have unrealistic expectations of DNA evidence:
Especially with everyone watching CSI now, and they all get fantastic results, so they’ll call you into court and say well if they can do it in five minutes on the TV, why can’t you come in here after weeks and weeks at it and not get a result? (NSWGS2)
…a lot more easier if they didn't watch CSI [laughs]. Cause we do get a lot of CSI style questions, CSI style requests. We do get swabs off glove marks because they think well maybe he has touched his face and then when he has touched his face he has transferred his DNA onto the counter ... It comes into that side of things where they don't really understand and that it's not the last person to touch it as to whose DNA you’re getting … So forensic awareness would be great … (NSWGS3).
NSWGS2 reported that scientists are “lucky” to have five minutes in private with either lawyer prior to appearing as a witness. The result is that scientists are often unable to provide lawyers with the results and information they require. Once the lawyer understands precisely what the scientist is able to report, they will decide not to call the scientist as an expert (NSWGS2). This situation leads into the third issue of increased court time.
This third impact to their job, as reported by the scientists, was the increased incidence of being subpoenaed. NSWGS1 reported being subpoenaed six or seven times but had never appeared in court (because the accused pleaded guilty or the case was thrown
185 out). In contrast, NSWGS2 reported being to court between twenty and thirty times a year, while being subpoenaed three times that amount. For these scientists, the number of subpoenas wasted resources and created unnecessary pressures for them. One solution suggested, was pre-trial communication between the criminal lawyers and scientists to determine what evidence could be presented and whether the evidence would indeed be useful to the case.
Police The NSW police interviewed for this study recognised that DNA profiling has changed the process of an investigation. Police officers now routinely look for DNA evidence at a wide range of crime scenes and in some cases prefer DNA evidence to other types of evidence. The process and focus of an investigation now includes more evidence that is scientific. However, there is a general awareness that DNA evidence is not the ‘be-all- and-end-all’, as several of the officers quipped.
NSW police officers are trained to use DNA profiling to assist their duties (NSWP1). In general, the training days are aimed at teaching officers the importance of crime scene preservation and maintaining the continuity of evidence exhibits (NSWP1). NSWP5 argued that the training for DNA profiling in NSW is inadequate, with only one hour dedicated to forensic DNA evidence. According to NSWP5, the training should be more detailed with a full day of training focused on DNA profiling. Instead of extensive training, the police officers are provided with seminars and articles on the developments of forensic DNA profiling.
The Standard Operating Procedures (SOPs) (contained in the Forensic Procedures Resource Manual) outline the specific procedures that police need to follow when collecting DNA evidence from crime scenes and suspects. Due to restricted access, the SOPs are not able to be included in this dissertation. However, the NSW Police provided a copy of the Mandatory Continuing Police Education Scheme (NSW Police 2005a), which educates police officers on the Crimes (Forensic Procedures) Act 2000 and the use of DNA evidence. The package was first published in 2001, with the last
186 update in September 2005, which means that the 2006 legislation is not included. The learning outcomes of the package included the need to:
• Differentiate between intimate and non-intimate forensic procedures;
• Identify and know how to protect possible sources of DNA and other forensic material at crime scenes;
• Outline the NSW Police standards and guidelines for officers seeking to carry out forensic procedures on suspects, serious indictable offenders, volunteers and excluded volunteers;
• Outline the procedures in applying for and obtaining court orders to carry out forensic procedures on individuals where consent has not been forthcoming; and
• Outline the procedures for the correct handling of forensic samples between police and laboratories. (NSW Police 2005a: 2)
The learning outcomes are very broad and encompass most of the main points of the Crimes (Forensic Procedures) Act 2000 and its amendments. The training package aims to teach police officers about the practicalities of collecting DNA samples from suspects and crime scenes. It also includes supplementary material for officers if they require further information on the legislation or the collection of forensic procedures.
The NSW Police Force have formal guidelines that structure the investigation of a crime scene. The police first attend the crime scene, where they establish which areas appear to be important and then restrict access. According to NSWP2 the introduction of DNA profiling has meant that there is now a “correct emphasis on exhibit investigation”. The SOCOs or crime scene officers will be contacted to examine the scene and collect evidence. SOCOs are responsible for collecting relevant items at a crime scene, however, where a police officer feels that the SOCO has missed an area they may request the officer to collect additional samples (NSWP1). Where a crime scene is outside and exposed to immediate environmental conditions that would damage the DNA evidence, for example rain, the police would be expected to collect samples themselves (NSWP2).
187 The introduction of forensic DNA evidence has altered the process of an investigation. According to NSWP4, DNA profiling has affected every police officer’s role, even the Commissioner’s. More specifically, NSWP3 stated:
Originally, the focus of the investigation was to arrest an offender, obtain a confession or admission. And the focus of contemporary police investigations is now find the exhibits, find if there is DNA or fingerprints, then with the weight of the evidence interview the offender, and see if they saw anything.
This shift has occurred because the public perceive physical evidence, like DNA evidence, to be more reliable than police statements. According to NSWP2, the jury are more likely to believe a police officer’s statement if there is scientific evidence to support it.
Scene of crime officers (SOCOs) A scene of crime officer (SOCO) is responsible for the collection of exhibits from crime scenes. NSWSOCO1 describes his view on the role of a SOCO as:
I mean really the job of the SOCOs is to collect, they’re just big vacuum cleaners, they just collect everything up …
NSW has two different types of crime scene investigators. The first involves crime scene investigators who examine major crime scenes and are usually divided into fingerprint analysts and physical analysts (NSWSOCO5). The second type, SOCOs, is limited to examining volume crime cases.
The role of the SOCO has been affected by the introduction of DNA profiling in several ways. The main impact has been an increased focus on the collection of DNA evidence and the need to write statements for court. In NSW, the investigating officer will ask a SOCO to write a report after the laboratory has profiled a DNA sample and the police have made an arrest. This will then be presented in court as evidence (NSWSOCO1).
The NSW Police Force employs scene of crime officers (SOCOS) through the Forensic Services Group (the number of SOCOs is unknown). SOCOs are civilian officers who provide forensic support for volume crime scene analysis. As unsworn police officers, 188 entry into the Forensic Services requires a degree in Forensic Investigations. In the early 1990s the NSW Police and the Canberra Institute of Technology developed a programme designed to offer formal training to people interested in becoming SOCOs. The training covers a number of areas including crime scene investigation and fingerprint identification. There is no designated section on DNA profiling. The aims of the diploma are to provide graduates with the “necessary knowledge, technical skills and attitudes to effectively manage and investigate a crime scene and implement quality assurance measures” (Stanley and Horswell 2004: 59). NSWSOCO3 refers to this as “basic training” that runs between four (NSWSOCO4) and nine weeks (NSWSOCO5).112 SOCOs regularly receive updates from the laboratory about new techniques and new collection methods.
SOCOs attend somewhere between several to fifteen property offence crime scenes a day (NSWSOCO1). The number fluctuates depending on geography, the seasons, and the time of a SOCO’s shift. In volume crime, a SOCO will normally attend the crime scene the day after the crime occurred. If the crime was committed in the morning, a SOCO may attend that afternoon (NSWSOCO3). Officers will examine the scene and focus on specific areas where biological material may be present. The most common places that the SOCOs examine are the point of entry, which will normally have blood or fingerprints, and any areas where items have been touched or moved. These areas will be targeted for DNA evidence first to ensure that the biological material is not contaminated or destroyed (NSWSOCO4). On average, a volume crime scene can be analysed in around half an hour to forty minutes, although the time can range from ten minutes to two hours (NSWSOCO4).
DNA profiling has changed the way evidence is collected from crime scenes. The collection of DNA samples from crime scenes is affected by three factors. The first is budget constraints, which limit the number of samples that can be collected. The second is the pressure from police to collect certain samples. The third is the availability of the evidence and its relevance to an investigation. SOCOs will search for evidence that will
112 The discrepancy between the duration of courses could be attributed to the alteration of the course over time. 189 provide the police with the most valuable and specific information. SOCOs need to use their discretion to determine where the most reliable samples should be found and collected. For example, in some circumstances, a SOCO will not collect cigarette butts because they are easily transferable (NSWSOCO2). Trace swabbing is also rarely used in volume crime offences because it is expensive, time consuming and also difficult to prove that the person was at the scene or committed the offence (NSWSOCO2).113
Prosecutors There was consensus between the prosecutors in this study that DNA evidence had offered prosecutors a new tool that had altered some of their practices. NSWDPP3 believed that the introduction of DNA profiling has generally resulted in more cases being prosecuted. Prosecutors can use DNA evidence to determine whether or not to prosecute a person. Where DNA evidence excludes a person, a prosecutor may decide not to prosecute (NSWDPP2; NSWDPP5). Prosecutors can also use the absence of DNA evidence to postpone a trial until the evidence is available. Trials can often be delayed while tests are conducted because prosecutors want to use DNA evidence to determine whether there is sufficient evidence to proceed to trial (NSWDPP3), or to determine whether the offender will plead guilty if a DNA match is declared (NSWDPP1). With the backlogs, and the need to analyse a sample within twelve months, prosecutors will not always have DNA evidence available in time to guide their decision as to how they deal with a case.
At trial, prosecutors often present evidence chronologically; as a result the DNA evidence is usually introduced later in the trial. As a tactic, NSWDPP5 will try to introduce DNA as her last piece of evidence in the Crown case “so it looks like you are finishing on a high point”. Any samples that were taken from the victim are then described; so that when the DNA evidence is examined in a trial, it complements the other evidence and makes sense in terms of the circumstances.
113 Trace swabbing refers to the process of swabbing an area where there is no visible DNA material to be collected. 190 Most cases will still have some form of DNA certificate in them because even where the tests are inconclusive or do not add anything to a case, a statement is frequently read to the jury explaining that there is no DNA evidence (NSWDPP3). Prosecutors need to be careful of how they present DNA evidence to the juries because of the potential to misrepresent the evidence and unfairly prejudice the accused. One of the prosecutor’s roles is to ensure that the jury members understand the evidence presented to them; and this is achieved by asking appropriate questions of the expert witnesses. Although prosecutors normally only introduce evidence of DNA profiling orally, in one case, a prosecutor organised a pictorial presentation of the process of testing DNA samples in an effort to help the jury to comprehend the evidence.114 The need to learn the technical terms and how to present them accurately to the jury is one important indication of the way in which their occupation has been shaped by the introduction of DNA profiling.
Similar to the findings of Steadman (2002) and Tracey and Morgan (2000), this study found anecdotally that the prosecution routinely use DNA evidence to corroborate other evidence and to confirm a specific version of events. As NSWDPP2 and NSWDPP5 suggested, like other types of evidence, DNA is a useful tool to test the credibility of a suspect and their ability to say that they were not involved:
Because if the accused has given a version to the police when first arrested and what they’ve said is a denial of what has been alleged, and the DNA matches … then the jury regard that as proof that he has been lying and that it’s not just her word. Science proves it. So, it’s very important (NSWDPP5).
An example of this was provided by NSWDPP2 who discussed a sexual assault case where the offender gave inconsistent accounts. Through DNA evidence, the prosecution were able to link him to the crime and demonstrate that he had, in fact, changed his story over time.
The role that DNA profiling can play in a prosecution brief will depend upon the strength of DNA evidence, as well as the skill of a prosecutor and admissibility rules. Most of the prosecutors thought that it was impossible to say that a case was
114 Prosecutors will normally show jurors the graphical DNA match produced by the laboratory. 191 strengthened significantly by DNA evidence. NSWDPP3 explained “it’s too simplistic to say, we’ve got DNA therefore we have a better chance of conviction”. Other prosecutors believed that DNA evidence could increase the likelihood of conviction (NSWDPP5). This is similar to the findings of Purcell, Winfree, and Mays (1994) who found that most American prosecutors in their study thought that the presence of DNA evidence increased the “winability” of a case.
Prosecutors have begun to use DNA evidence more frequently in the past five years and have started to request additional DNA tests. Prosecutors can ask that samples be re- tested or new exhibits tested (NSWDPP3). One reason why a prosecutor may ask for additional tests is because they are unaware of the reasons why a test was not initially conducted. For example, a knife that is found outside on the grass and exposed to rain will not be initially tested by the laboratory because it is unlikely that there will be any DNA samples remaining on the knife (NSWDPP4). However, in some cases a prosecutor would feel pressured to request that the test be done. This would allay their apprehension that the defence would argue that without DNA evidence there is insufficient evidence to link the defendant to the crime scene. As a result, the prosecution will pre-empt the defence and ask for additional tests to avoid a “beating” by the defence, even though the tests are unlikely to yield any definitive results (NSWDPP4).
Defence lawyers The defence lawyers in this study initially doubted that DNA evidence had altered their job. The defence lawyers did not perceive the changes because, like prosecutors, they are accustomed to learning about new scientific techniques that are relevant to a case (NSWD2). For NSWD1, “it’s not that different from finding your client’s fingerprints in surprising places of a crime scene”. However, some of the defence lawyers believed that DNA evidence had made some cases harder to defend because it closes down a “grey area or a black area” in a line of defence (NSWD3). NSWD5 believed that DNA has “undoubtedly made it [the job] a lot harder”. DNA profiling has made the job of defence counsel harder because they require new knowledge to challenge the evidence and there are few experts available to defence lawyers in NSW (NSWD5).
192
The presence of DNA evidence can affect how a defence lawyer will prepare for a case (NSWD1). The advice a defence barrister gives to a client will be based upon the strength of the DNA evidence and the amount of research that has been conducted into the case. As NSWD1 explained:
Sometimes it has helped me approach my clients; I mean not everyone I represent is innocent. Sometimes with the DNA sample you approach the case quite differently, when I’m looking at advice on appeal if there is good strong DNA I may well recommend that they not appeal. I might recommend to the client that they plead guilty or consider seriously their statement that they’ve never had sexual relations with that woman.
A defence lawyer needs to be able to explain to their client when the DNA evidence can be challenged and when it cannot be challenged (NSWD3). The barrister will then need to decide whether to advise their client to plead guilty, to accept the evidence, or to challenge the evidence.
Defence lawyers tend to react to DNA evidence in two ways. The first reaction is to accept DNA evidence as “overwhelming evidence” and to either “deal with it” (NSWD3), or “bury it” under other evidence (NSWD1). The second is to challenge the DNA evidence itself. According to NSWD3 and NSWD5, it is now rare for DNA evidence to be challenged in court. Instead, the defence may accept the presence of DNA at a scene where their client admits there was sexual intercourse, or an assault, or that they were at a specific place (NSWD2). The defence will then move away from the validity of the DNA evidence to issues of consent or innocent contact. Where there is a challenge to the DNA evidence, defence counsel raise concerns about: mixed profiles and racial profiles (NSWD4); the potential for a sample to be contaminated or the potential to produce incomplete profiles (NSWD5); the continuity of an exhibit; the possibility that the scientific processes were incorrectly followed; or that during the trial there was insufficient direction given to the jury about the presentation of the statistics of a match (NSWD3).
193 Where a defence barrister chooses to challenge the DNA evidence, they need to be subtle (NSWD1). Challenging how the DNA sample became present at a crime scene is much more “fertile ground” (NSWD1). Challenging the DNA match is “significantly more difficult” and the defence lawyer needs to convey to the jury that the issue is one of probabilities rather than certainties (NSWD1). NSWD1 expressed the difficulty of challenging DNA matches when he commented:
[Where] there is a really strong match between two profiles, generally it’s time to start revisiting your instructions or exploring the possibility of the evil twin.
Although NSWD1 made light of the matter, he has run defences based on a close relative being the true donor of a sample. NSWD1’s strategy is to question the expert’s procedures until the statistical value is reduced.
One limit to a defence lawyer’s use of DNA evidence relates to the delays in profiling DNA samples. NSWD4 asserts that due to a lack of funding to the NSW Government Laboratory, there have been:
… substantial delays in the obtaining of DNA evidence. To the extent that where we expect to find DNA in a brief and none is there, [it is] because none was obtained, because it was too far back in the queue.
The absence of DNA evidence can hinder a defence case substantially because the defence want the evidence to exclude their client. A barrister may need to postpone advising their client, until the DNA results have been confirmed (NSWD3).
A second issue that affects the defence use of DNA evidence is limited access to laboratory facilities, due to legal and financial limitations. Defence counsels are often frustrated by the structure of Australian laboratories and the lack of forensic services and expert advice readily available to the defence. Most of the defence barristers claimed that it was very difficult to obtain independent laboratory tests (this will be further discussed in Chapter Nine). According to NSWD4, the Government Laboratory has a “cultural agenda, which is to support the prosecution”. As it is difficult to engage a DNA expert outside of the Government Laboratory, and costly for defence counsel to
194 acquire independent expert witnesses, they will often have to rely on cross-examining the expert from the Government Laboratory (NSWD4). Both NSWD4 and NSWD5, from the same Chamber, stated that there was only one “independent expert” in NSW.
A third issue relates to the concern that the original DNA tests can be affected by the prosecutor’s needs. For example, one lawyer described a case where a prisoner was accused of murdering a fellow inmate with a shiv (a make-shift knife). In the first trial, which was later aborted, the shiv was excluded as evidence. However, after the trial a scientist tried to obtain DNA evidence of the person who made the shiv by unravelling the sticky-tape on the shiv handle. The defendant was also interested in having the DNA tests conducted to exclude them as a suspect. However, whilst the laboratory identified the presence of DNA material, they were unable to identify a specific person. The lawyer believed that the laboratory had conducted a rush job and as a result, they did not find anything useful to his client. Similarly, NSWD5 argued that it is impossible to know whether a DNA test has been conducted and the tests have failed, or if the tests were inconclusive because that information goes “into the ether”. Both defence lawyers were suspicious of cases where DNA tests were requested but yielded inconclusive results.
Judicial officers Among the criminal justice practitioners, judicial officers had the most limited experience with DNA profiling. Judicial officers have four main roles. These include: acting as a gatekeeper for courts (determining which evidence is admissible); determining guilt or innocence (in the absence of a jury); sentencing offenders; and hearing appeals.115
According to the judicial officers interviewed, DNA evidence is infrequently used in criminal cases.116 This finding, however, could be a reflection of the judicial officers
115 Magistrates, in addition, determine whether forensic procedures should be conducted without consent. The Magistrate in this study, interestingly, had no experience with this procedure. 116 The judicial officers interviewed were involved with mainly criminal matters as opposed to civil, although NSWJO4 did have experience of DNA evidence being used in a civil paternity case. 195 included in the study. One Supreme Court judge’s experience was limited to one case that involved DNA evidence (NSWJO1), while a Court of Criminal Appeal judge had only heard one or two appeals involving DNA evidence (NSWJO2). The magistrate had heard a few cases that involved DNA evidence in the past fifteen years (NSWJO6). In the five years that NSWJO3 has been a judge of the District Court, he estimated that he had heard twenty or thirty cases with DNA evidence, and perhaps only ten of those cases had expert witnesses or issues where the evidence was contested. Similarly, NSWJO4, a judge of twenty-two years, estimated that he had heard only half a dozen cases where DNA evidence was used. Judicial officers, NSWJO3 and NSWJO4, agreed that the majority of cases they had heard with DNA evidence had been in the previous two or three years.
The judicial officers tended to regard DNA evidence in the same way they treated other scientific evidence. As a result, where the DNA evidence is contested, a judicial officer’s first role is to determine whether the DNA evidence is admissible. NSWJO7 summarised this process by stating, “first of all I decide if any objection is taken and whether it should come in”. The judicial officers in this study were more concerned with the correct terminology of DNA evidence, rather than whether it should be excluded. One of the earliest and biggest challenges for judicial officers is to recognise when the prosecutor’s fallacy has been committed (NSWJO1). The problem of the prosecutor’s fallacy has been transferred onto the judges, with NSWJO5 commenting that he needs to make sure that he does not fall into the trap of committing the prosecutor’s fallacy when summing up a case to the jury.
As a result, judicial officers need to have sufficient knowledge of DNA evidence to give appropriate direction to the jury. As NSWJO2 explained:
It’s just another aspect of proof. It’s meant that when I sum up I’ve got to be reasonably familiar with the terminology of that technology and be in a position to explain it to the jury.
In summation, the presiding judicial officer should explain to the jury what the DNA test results can show and that DNA profiling is “concerned with statistical probability,
196 not about certainty” (NSWJO7). The judicial officer also needs to decide whether a warning should be given to the jury about the reliability of the evidence (NSWJO7) and how to approach the opinion evidence of experts.
Some judicial officers agreed that DNA evidence could be used when sentencing an offender, although most disagreed. The process of sentencing takes into account the facts of the case, which can include the use of DNA evidence (NSWJO2). For example, NSWJO2 suggested that DNA evidence could be taken into account when determining the degree of moral culpability attached to a murder. NSWJO5 similarly believed that in cases where the accused pleads guilty, in response to DNA evidence, to an offence that they cannot remember due to substance abuse, a judge should use this information when sentencing to be lenient on the offender.
Each judicial officer had a different opinion about the way that DNA evidence has affected his role. NSWJO2 believed that DNA evidence has not significantly affected his role as a judge, and that DNA is simply another aspect of proof that he needs to summarise at the conclusion of a case. NSWJO1, NSWJO3, and NSWJO5 expressed their belief that DNA evidence had affected their role as a judicial officer because they have been required to learn about DNA profiling. NSWJO5 also suggested that DNA profiling had shortened a number of cases, and thus saved the criminal justice system money. For NSWJO7, the introduction of DNA evidence into criminal cases has made it easier for him to make determinations.
Thames Valley
Forensic biologists In the Thames Valley, exhibits are brought to the laboratories daily and recorded by the laboratory (TVFS2). The samples are then checked to determine if there are visible stains. Where there are visible stains that section will be removed and sent to another area of the laboratory for testing.
As in NSW, the Thames Valley scientists require information from the police on the background of the case to determine which exhibits should be tested and whether a case 197 should be prioritised (TVFS4). The police send in more samples than the laboratory can analyse, anywhere between thirty or fifty items per case when only five will be analysed for major crimes (TVFS5).117 Consequently, the police are required to submit a form with an exhibit explaining the details of a case. In serious cases the police will meet with scientists to discuss the case in detail and to establish which tests need to be conducted. Investigators can call the laboratory to request specific information about a case or a test that has been conducted (TVFS2). At the beginning of conducting tests, one of the laboratories provides the police with a contact number for the reporting scientist so that the police officer has an immediate contact to follow-up samples (TVFS5).
Similarly, as in NSW, the interaction between the scientists and the police has also created some problems for the scientists. Some of the scientists suggested that the police would often ask for specific tests and keep requesting additional tests until they receive the result they want. TVP1 stated:
So we sent off the balaclava and it came back with four partial mixed DNA, generally male maybe. So we sent it back and they got nothing. And it was on the sixth time that we sent it back that they got the full DNA profile. Because they weren’t, they were just doing a job which they do everyday which is really boring … but if you can engage them, you can get them to get a full sample by actually explaining to them personally what has gone on, what has happened.
In this case, the police officer repeatedly sent the samples to the laboratory until a profile was obtained. As already mentioned, this creates a number of problems, such as contamination.
Another similarity between NSW and the Thames Valley relates to the need for scientists to present expert evidence in court. In the UK, scientists reported only being called to court for the more complex or high profile cases (TVFS4; TVFS5). The need for scientists to present expert evidence has resulted in three outcomes. The first, which
117 This raises problems for the performance reviews of SOCOs because their performance is reviewed on the basis of a selection of their collected samples rather than all the samples that they collected. 198 was similar to NSW, is the need for guidelines on who can present, the second is concerned with the nature of independence, and the third, encountered by the NSW practitioners, related to the limited contact with lawyers before trial.
In relation to the first outcome, the laboratory and the Council for Registration of Forensic Practitioners (CRFP) have restricted the ability of scientists to present expert evidence at court. In recent years, the CRFP has had an increased role in monitoring scientists who present in court (TVFS4). In addition to the CRFP, the Thames Valley laboratories have established training procedures for their expert witnesses. Newer scientists in one of the Thames Valley private laboratories are required to complete a more formal court-reporting course (TVFS5). As part of the training, one of the private laboratories requires its new scientists to act as expert witnesses in mock trials and also attend court trials to watch colleagues’ present evidence (TVFS5). Despite the CRFP and laboratory standards, there are few formal limitations on the presentation of expert evidence in court. The courts will hear expert evidence from any relevant expert, regardless of their court training.
The concept of an independent witness was the second concern for most scientists. Corns (1992: 13) discussed the need for scientists to provide courts with ‘value-free’ and ‘politically neutral’ evidence. The Thames Valley scientists recognised that an expert should not represent either the defence or the prosecution (TVFS2). Although the court training assisted scientists in providing neutral evidence, the evidence could still be perceived as value laden (or subjective) because the laboratory was paid for a service (Daemmrich 1998). These issues will be discussed in Chapter Ten.
Police The Thames Valley police officers in this study recognised that DNA profiling had changed policing practices and, like their counterparts in NSW, the way that a crime scene was investigated. TVP2 compared the use of DNA evidence to the rise in popularity of mobile telephones and stated that police officers “can’t actually operate without them now”. Despite this, they also recognised, again like the police in NSW, that an investigation requires a number of different types of evidence. TVP3 explained,
199 “I think you’ve got to be careful not to be totally reliant upon it, you’ve still got the traditional methods”.
The Thames Valley Police offer several training courses to officers depending on their rank, to ensure that officers know how to collect and preserve DNA evidence (TVP4). The training courses for juniors within the Criminal Investigation Department (CID) and senior investigating officers both have a science component taught by forensic biologists (TVP2). According to TVP4, the initial police training course he attended, lasted 12 weeks, with only a few hours devoted to forensic science. The Thames Valley police offered an additional two-week training course where SOCOs spoke to the officers about evidence preservation. TVP5 also indicated that scientists were involved in the training process. The inclusion of SOCOs and forensic biologists has meant that recent recruits tended to be better informed about a wider range of DNA related issues.
The 2006 UK Student Police Officer Handbook (Bryant 2006) details the process of an investigation and the role of forensic science within that investigation. The Handbook is considered to be one of the key texts for police officers undergoing their initial training.118 The Handbook discusses the relevance of the Police and Criminal Evidence Act 1984 and provides officers with a quick point of reference for the legislation. Attendance at crime scenes and the procedures for collecting samples are also carefully summarised. The Handbook advises officers about the correct method of preserving and collecting evidence like DNA and fingerprints. In addition, it briefly outlines the scientific basis of the technology and some of the technologies used to create a profile.
The Thames Valley Police policy documents, Standard Operating Procedures (SOPs) and the DNA Good Practice Manual (Association of Chief Police Officers [ACPO] 2005) outline the official policies governing the use of DNA evidence in
118 However, it has not been endorsed or reviewed by the Initial Police Learning and Development Program (IPLDP); as a consequence it may not be used officially by police officers or training programmes in the Thames Valley. Despite this, it is useful to examine this text to demonstrate what is available to police officers if they chose to seek additional information. 200 investigations.119 The policy documents are quite brief, but provide valuable information for officers. The Forensic Investigation Unit Attendance Policy is directed at scene of crime officers and the need to recover evidence from crime scenes (Thames Valley Police 2006c). Crime scenes that are not attended by SOCOs are documented carefully. The SOP for mass screens in the Thames Valley provides a “practical guide to setting up a mass screen” (Mulroy 2000; Ratcliff 2004) and the DNA Submissions (Screening Protocol) outlines the type of samples that can be collected and submitted from crime scenes (Schollar 2004). Scientists, police officers, and SOCOs use the DNA Good Practice Manual as a guide to collect and preserve evidence from crime scenes and suspects (ACPO 2005).
The circumstance of the case and the experience of the individual police officer at the crime scene would influence the investigation of a crime. The process of investigation begins with the reporting or identification of an offence. The attending officer needs to make sure that the scene is secured properly and that neither they, nor others, handle anything and that no unauthorised access is allowed (TVP4). The officer will then usually talk to the victim (if possible) and any witnesses to assess the forensic needs of the case and to obtain information about the culprit (TVP2).
The training and manuals assist police officers to recognise the circumstances where DNA samples may provide useful evidence. TVP1 described a case where a safe was broken into and a cigarette butt was found adjacent to the open safe. After a DNA hit was achieved with the cigarette butt, the suspect argued that the butt was planted at the scene, and as TVP1 stated “it would have made sense in that particular case, although unfortunately it had burnt the carpet”. According to this anecdotal information about the case, the police were open to the suggestion that the butt had been planted, however, in that specific instance the suggestion of planting, or secondary transfer, seemed implausible.
119 The Thames Valley Police also provide a Thames Valley Police Forensic Investigation Strategy (2006a) and Forensic Casework Authorisation Matrix (2006b) to assist police officers. 201 The scene of crime officers (SOCOs), or crime scene examiners, will normally be called to conduct the forensic examination of the crime scene. As in NSW, where a SOCO does not attend a crime scene, or where the evidence may be lost before a SOCO can attend, the investigating officer can “capture” biological material and exhibits if necessary (TVP1; TVP4). Where the case is a robbery or minor assault the police officers need to seize the clothing of the victims or assailants if possible (TVP5), and in the case of a rape a police officer must be present during a forensic examination to ensure the continuity of samples.
Scene of crime officers (SOCOs) The Thames Valley Police hire civilian scene of crime officers, as well as crime scene examiners, from within the Forensic Investigation Unit (FIU). In 2006 there were 157 full-time civilians working in the FIU, of those, 71 are scene of crime investigators (HMIC 2006). SOCOs are located in ten areas across the five BCUs, and work shifts that cover 8am to 10pm. Like NSW, the Thames Valley has two types of crime scene investigators: crime scene examiners and SOCOs. SOCOs attend both major and volume crime cases, however, where cases are more complex the crime scene examiners attend. The senior SOCO is in charge of determining which samples need to be sent to the laboratory and is responsible for performance management.
The introduction of DNA profiling has added a new dimension to the role of a SOCO (TVSOCO3). DNA profiling has created more work for SOCOs because they need to collect more samples and ensure that they collect evidence in the correct sequence (TVSOCO5). For example, the SOCOs need to ensure that they collect DNA evidence before it is contaminated. As already mentioned in Chapter Six, some SOCOs felt that there was a growing pressure to collect DNA samples in preference to other forms of evidence.
SOCOs are required to attend the nine-week residential Initial Crime Scene Investigator Training Course at the National Training Centre in Durham organised by the police. DNA training within the residential course, lasts one and a half weeks, out of the total nine-week course (TVSOCO2). Part of the UK SOCOs training involved visiting the
202 local laboratory to view the processing of DNA samples (TVSOCO1). In addition, the laboratory staff update the UK SOCO’s training every few years, and the laboratory will alert the SOCOs of any new techniques or procedures (TVSOCO4). According to one SOCO, the training program teaches UK SOCOs to appreciate the DNA profiling techniques that are available. These include issues relating to the database; time and resource issues; understanding the samples that are required; and knowledge of the laws governing the collection of samples (TVSOCO1). The requirements to become a SOCO include a high level General Certificate of Secondary Education (GCSE) in English, Science or Maths with a preference for science graduates.
The procedures for SOCOs attending crime scenes are standardised in the Thames Valley. SOCOs attend one or two major crime scenes a month and can attend several different volume crime scenes in a day (TVSOCO5). At the scene, the SOCO will usually talk to the victim or the police officer to establish what has occurred and what evidence is available (TVSOCO3). A common pathway is established through the crime scene to minimise contamination and the first step in the procedure is to photograph the scene. SOCOs are required to take detailed notes about the source of an exhibit and where a particular sample was found. This includes graphic records and diagrams in case they are subpoenaed to attend court (TVSOCO2). In a burglary case, the SOCO will start to analyse the scene at the entry point, determine if any surfaces had been touched, if the offender had smoked, left an item of clothing behind, or eaten or drunk at the crime scene.
The procedure for collecting DNA samples can differ according to the jurisdiction and the personal practices of each officer. In the Thames Valley, there is no official procedure for how samples should be collected. TVSOCO1 stated that different stations have different protocols. One station may encourage SOCOs to collect the entire item, such as a Coke can, while other stations would prefer its officers to merely swab the item. TVSOCO3 explained that the best practise is always to seize the item. TVSOCO4 believed that it is more likely that a swab would be taken because it is less expensive
203 and requires less storage space.120 Each sample costs £4.50 to store for the first five years (BBC News 2007b). The different procedures used by laboratories illustrate how DNA evidence can be used differently within the Thames Valley.
The SOCOs are responsible for submitting and tracking samples through the laboratory. Individual SOCOs submit requests to the senior SOCO within a particular station to have samples profiled. That senior SOCO will either authorise the sample to be sent to a laboratory for testing, or decide against its testing altogether. The samples are stored within the SOCO unit at a police station until the sample is sent to the laboratory (TVSOCO1). The senior SOCO will weigh the probable evidentiary value of the sample against the cost of the sample (TVSOCO5) and use the prioritising system presented in Table Fifteen.
120 Indeed, these SOCOs were from different police stations. 204 TABLE FIFTEEN: THAMES VALLEY FORENSIC DNA SUBMISSION SCREENING PROCEDURE
Priority Evidence Types
Priority One Blood (stained item) Blood (swab) Chewing gum Cigarette butts Fingernail clippings Drinking vessel Drinking vessel (swab) Priority Two Comb/razor Saliva Hats/Balaclavas Cigarette lighter Watch strap Hair Priority Three Socks/gloves Clothing String/adhesive tape Tools/screw/nuts/bolts Jewellery Footwear Envelope/stamps Fingermarks Food items Source: Thames Valley DNA Submissions (Screening Protocol) (Schollar 2004: 2) provided by the Thames Valley Police Headquarters.
Table Fifteen explains how senior SOCOs prioritise the samples sent to the laboratory. The red area (Priority Three) produces poor DNA results so are reserved for the major crimes, whereas items in the green area (Priority One) are more likely to produce DNA profiles and as such are routinely authorised for both minor and major crimes (TVSOCO1). Some of the evidence types in Priority One, however, have been described as “weak” evidence in comparison to biological material such as blood, because samples such as cigarette butts or chewing gum can easily be transferred (Bond 2007: Bond and Hammond 2008). This may suggest that the priority table requires revision.
Changing practices within the criminal justice system
Criminal justice systems inevitably change with any new technology or technological development. The examples provided by the NSW and Thames Valley criminal justice
205 practitioners indicated how DNA evidence had changed practices within each criminal justice system. Not surprisingly, the changes were relatively consistent across the two jurisdictions. For example, the police officers and SOCOs in both areas had been required to change their practices to ensure that potential DNA samples were secured from crime scenes.
Where there were changes across the jurisdictions, these related to the fundamental differences in the practices across the areas. For example, the NSW and Thames Valley police had different procedures for responding to crime scenes. The SOCOs were similarly constrained by these differing procedures, as illustrated by the Thames Valley DNA sample submission screening procedure.
The changes to organisational practices were an extension to the changes created by existing forensic practices. For example, the criminal lawyers’ use of DNA evidence was an extension of their previous use and knowledge of other scientific evidence. Similarly, the scientists’ use of DNA profiling extended their previous knowledge and use of blood group analysis and fingerprint matching. So, although DNA evidence has created new benefits and obstacles for each of the practitioner groups, it has not changed the fundamental nature of their occupations. As a result, many of the practitioners, and in particular the judicial officers and criminal lawyers, did not perceive that DNA profiling had affected their work.
This chapter has examined how the criminal justice practitioners in this study understand and use DNA evidence. Unlike Tilley and Ford’s (1996) findings, this study found that overall; the criminal justice practitioners had sufficient knowledge to use DNA evidence effectively in most cases. This may be due to the passing of a decade, which has enabled this new knowledge to be more easily assimilated. The focus of training and informal information gathering activities to find information on the practical uses of DNA evidence, rather than its scientific basis, allowed the practitioners to focus on what is important for them in order to investigate and prosecute a case. It is unlikely that scientific training will assist the majority of practitioners, although it may alleviate some of the more impossible requests to scientists. Like the previous three
206 chapters, this chapter has shown how DNA evidence has changed the processes involved in investigating and prosecuting criminal offences.
However, there was evidence to suggest that some of the practitioners did not receive enough information about the problems, or limitations, associated with using DNA evidence. For example NSWDPP2 was committing the prosecutor’s fallacy without realising it. Without an understanding of the limitations of the technology, practitioners could reinforce the perception of jurors that DNA evidence is infallible. This could lead to miscarriages of justice if there were problems with the evidence. As such, there was evidence to suggest that a simplified training manual or a glossary of the terms and procedures relevant to the collection and analysis of DNA evidence would be useful for lawyers, and perhaps judicial officers. For lawyers, such a resource might allow them to ask more specific questions of expert witnesses, and especially for defence lawyers it might assist their knowledge of how to challenge the evidence. While the police have a number of SOPs that provide information on the collection and preservation of DNA evidence, further information could be useful to clarify what DNA evidence can actually achieve. This extra information could minimise the number of samples SOCOs are expected to collect and the number of CSI style requests that scientists become frustrated by.
The following chapter examines some of the unintended impacts of DNA evidence on both the NSW and Thames Valley criminal justice systems, and the dangers associated with using the technology on a routine basis without corroborating evidence.
207 CHAPTER NINE: WIDER IMPACTS OF DNA EVIDENCE
The NSW and Thames Valley criminal justice systems have been shaped by the increased popularity of forensic DNA profiling. The last four chapters examined some of the impacts of DNA evidence on the criminal justice system. This chapter provides further details for a number of the issues, such as backlogs, referred to in these previous chapters, as well as discussing a number of problems highlighted by the criminal justice practitioners. In particular, this chapter focuses on how DNA profiling has impacted (both intended and unintended) on three main areas of the criminal justice system. First, it has increased the need for specialised resources used for the collection and analysis of DNA evidence in criminal cases. Second, important processes of a criminal investigation, including identifying and interviewing a suspect, have been altered by the introduction of DNA profiling. Third, the use of DNA profiling has created the potential for miscarriages of justice to occur. There is no differentiation between jurisdictions in the second two areas because the same issues emerged.
Impact on criminal justice system resources and procedures
New South Wales In direct proportion to the routine use and proliferation of DNA testing, the resources of the NSW forensic science budget have become strained in the last decade. For NSWSOCO2:
I think one of the core obstacles of DNA is the backlog that it produces … but on average, SOCOs from a volume crime perspective attend say five to six thousand crime scenes a year where we collect DNA evidence from … but each item from that then has to be analysed by the lab, and that has got constraints in terms of money.
Although the NSW government provides substantial resources to forensic science services (as shown in Chapter Six), these resources have not been able to cope with new demands, resulting in backlogs and storage problems.
208 Many laboratories around the world have been affected by backlogs of DNA samples. In the US in 2001:
81% of DNA crime laboratories reported DNA analyses backlogs totalling 16 081 subject cases and 265 329 convicted offender samples … private laboratories had a reported backlog of 918 subject cases and 100 706 convicted offender samples (Steadman 2002: 1).
The backlogs in the NSW Government Laboratory have been a constant problem since the early 2000s.
Chapter Six illustrated the widespread use of DNA evidence in the NSW criminal justice system. It also suggested that, as a result of limited resources, NSW forensic science services were experiencing problems coping with the increased demand for DNA testing. The increase in workload for the NSW state laboratory scientists was explained by NSWGS4, who commented that DNA profiling has:
… absolutely mushroomed over the last five years … When I started off, it was getting busy then, but we were getting a thousand cases a year, and last year we got ten thousand cases … most cases would have some aspect of possible DNA tests.
The number of samples that require analysis has continually increased, especially with the introduction of volume crime samples (as shown in Chapter Seven). The use of DNA evidence in volume crime cases requires substantial resources that NSW has not provided. There is presently a one-year backlog for volume crime cases (NSWGS1), with NSWGS2 stating, “We have a year’s work just sitting that we haven’t even touched yet”.
According to NSWGS1, the backlogs began in 2001, peaked in 2003, and are still a major problem. In August 2004 the NSW laboratory had a backlog of 7,000 samples (NSW Ombudsman Report 2006: 68). Most of the backlog cases were for less serious crimes, such as break enter and steal (2,633 cases), stolen motor vehicle (1,188), steal from vehicle (279) and malicious damage (169) (NSW Ombudsman Report 2006: 68). However, there was also a considerable backlog for serious offences: murder and
209 manslaughter (116), attempted murder (42), sexual assault (504), robbery (903), assault (219) and home invasion (40) (NSW Ombudsman Report 2006: 68). One reason for the backlogs relates specifically to the number of staff at the laboratory (NSWGS2). In 2001 when the backlogs began, the laboratory had ten employees. This has now increased to approximately fifty (NSWGS1); but the increase in staff has not reduced the backlog significantly as the number of DNA samples has also increased.
Numerous authors have highlighted the problem of DNA backlogs, and the negative consequences it can have on victims and on solving crime (Hackenschmidt 2004; Briody 2005b; O’Connor 2003). For Edwards (2005), backlogs place pressure on technicians to work faster, which may create an atmosphere where mistakes are more easily made. The backlog can also negatively affect a woman’s perceptions of justice in sexual assault cases by implying that she is not worth the cost of a $500 test (O’Connor 2003). Delays in DNA tests can hinder an investigation because the early identification of suspects is useful to further build a case and to challenge an alibi (Gaule 1999). In Briody’s (2005b) Queensland study, some investigations were delayed for 12 months as a result of laboratory backlogs.
The need to prioritise cases and analyse samples before the twelve month period stipulated by the Crimes (Forensic Procedures) Act expires, has led some of the criminal justice practitioners to believe that some of the older cases should be discarded without testing. For NSWGS2:
You’ve got to assess and see if it’s worth doing the backlog in a lot of cases because quite often these people have been caught for something else.
NSWGS2 suggested that some of the older cases could be discarded to release resources. Although the scientist was referring to volume crime cases, the implications of deciding which cases are “worth” completing are wide ranging, especially if a rejected case might have led to more serious crimes being committed, or a subsequent match on the database. This suggestion also raises questions about the validity of using DNA evidence routinely in volume crime cases if the laboratory cannot process the samples in a timely manner, so that the case has to be abandoned at a later date without
210 testing. In practice, this is already occurring, with NSWGS4 having stated, “there are a lot of items that we are just never going to get to unless there are drastic changes to our resources”.
The increase in the use of DNA profiling in criminal cases resulted in backlogs in the court process as trials were delayed in order to obtain DNA test results. Several judicial officers reported that proceedings had been delayed because of the laboratory backlogs. Cases in the lower courts have been adjourned to wait for the DNA tests to be conducted, especially for committal hearings (NSWJ6). NSWDPP2 explained:
It can be a problem during local court during proceedings. And I remember years ago it was shocking, and we’d be coming back mention after mention after mention, saying that look, we still don’t have the DNA ... Particularly when you had insufficient evidence, without it – there were a few people discharged as a result of that.
Trials can be delayed for months waiting for DNA tests (NSWD3). These problems were highlighted in R v Henry [2004], where the defence argued that delays in the testing of DNA evidence caused the trial procedures and sentencing to be delayed. The appeal was successful, and the offender was re-sentenced with consideration to the amount of non-parole time that he had served while awaiting DNA tests. Delays in court processes caused by the backlogs have created distress for the victims, witnesses, and the accused, especially those detained in custody (NSWDPP1). Delays have also created additional expenses for the accused and the courts, as cases were adjourned until the DNA tests were available. In other cases, prosecutors have been forced to proceed with trials without DNA evidence because the courts could not postpone the case (NSWDPP1). Some of the prosecutors complained that they had lost trials because the test results took too long (NSWDPP2; NSWDPP5).
Inadequate resources have also affected the ability for defence lawyers to access independent DNA testing. As already discussed in Chapter Eight, defence lawyers have raised concerns about the level of independence of the NSW State Laboratory from the police, and consequently the reliability of the profile created. Defence lawyers also have limited funds for independent tests provided by Legal Aid. Although Findlay (1993)
211 raised this concern over a decade ago, it continues to be a problem in NSW. As DNA tests are expensive, Legal Aid only funds a limited number of tests each year. For example, NSWD4 stated:
If the job involved a lot more work than the usual, then you’ve got to beg and persuade Legal Aid to provide you with sufficient funds. And ultimately it will be shaved so you need to get people who are willing to do it for less than they normally would. Or alternatively it’s got to be paid for privately, out of an individual’s pocket, at market rates, so if you have a well off client you may well get the opportunity.
This suggests that the introduction of DNA evidence has disadvantaged defendants. Legal Aid has insufficient resources to provide tests for defendants at an independent laboratory and the process of acquiring independent DNA analysis is too expensive for most defendants. According to NSWDPP2, Legal Aid only provides the defence with funds for DNA tests if it is a “big high profile case”. Consequently, defendants are disadvantaged because they need to rely on the tests conducted by the Government Laboratory and access to resources is based either on the defendant’s personal funds, or by the level of media attention given to the offence (in order to make it a high profile case).
Storage problems have become an unintended outcome of the proliferation of DNA profiling in the NSW criminal justice system. According to NSWGS2, “we have huge storage problems here, and we simply don’t have enough storage”. As the police submit more crime scene samples than are analysed, the laboratory needs to store the excess samples and exhibits at the laboratory until the case is closed. The laboratory cannot return samples to the police unless they have been tested or unless the police request the samples to be returned (NSWGS4). As a result, the storage problem at the Government Laboratory will continue to expand and will create secondary problems where the laboratory may not be able to take multiple crime scene samples from the police.
Unlike the scientists, NSW police officers reported having adequate storage facilities for forensic DNA exhibits. However, police officers recognised that storage will be a
212 future concern when DNA evidence is used more frequently in both criminal investigations and exonerations. For example, NSWP5 commented that storage was:
… definitely something that the organisation has to consider for the future, because you are seeing more and more DNA style exhibits and often by their nature they can’t be destroyed even when the matter is finalised.
The DNA Review Panel has meant that samples are kept for longer periods. Consequently, the necessary infrastructure for future storage systems is required.
Thames Valley In the Thames Valley, the use of DNA evidence has impacted on the region’s resources and procedures. The police experienced problems with backlogs when DNA was first introduced, and has a continuing problem with storage facilities. The interviewees also identified problems with the level of communication between police, SOCOs and scientists, and found that the collection of samples was cumbersome. These two procedural problems have been an unintended impact of the proliferation of DNA evidence on the criminal justice system.
Similar to NSW, the Thames Valley initially experienced backlog problems as a result of limited resources. The increased collection of crime scene samples and suspect samples resulted in backlogs across the UK in 2000 when DNA samples began to be taken routinely from volume crimes. Around that time, there was approximately an eighteen-month backlog on the processing of DNA samples (TVCO).
However, as the popularity of DNA profiling increased, the Thames Valley Police invested more resources into laboratories, and a number of private laboratories began providing services to the police. These developments eliminated the backlogs in the Thames Valley. According to TVFS4, backlogs are in the “past” because:
… one of the big drivers in this country has been speed of turnaround and specifically in the volume crime cases, that’s where it started. The police are expecting now two to three day turnaround. They want the profiles on the database in three days after a sample has arrived. And because it’s sort of commercial now, [name of company
213 removed] competes against others, the [name of company removed], and the forces will go out to them and go right, how much are you going to charge? What turnaround time can you promise? What success rate can you promise? And you’ll be held to those terms … and if our success rate on blood samples has dropped below what they expect, we get rapped over the knuckle.
As the Thames Valley police are now able to send samples to two or three different laboratories, backlogs have ceased to be a major concern. The police have used the competitive nature of the laboratories to their advantage as highlighted by the quote from TVFS4.
The estimated turn-around time for a sample differed according to the interviewee. For TVCO, the laboratories now have a two-day turn-around time, whereas scientists estimated the turn-around time of a major crime sample at between five and ten days. TVP1 believed that a normal case would take four to six weeks to process, and only critical cases would have a turn-around time of a week. These discrepancies in estimates could be due to the different laboratories being employed, different expectations of respondents, and the type of cases the respondent works on.
The popularity of DNA profiling has encouraged UK laboratories to adopt an automated system. The process of automation allows more samples to be tested in less time, whereas the prioritising system allows police officers and prosecutors to request certain samples to be fast-tracked. The UK Forensic Science Service (FSS) was the first and only laboratory in the world to use automation from start to finish (FSS 2004). According to the FSS (2004: 1):
More than 40 000 DNA samples can be processed and loaded to the National DNA Database (NDNAD) each month using the automation system, compared to 15 000 samples previously processed manually each month.
In theory, automation in the FSS has enabled the turnaround of samples to be decreased from two weeks to three days (while this reflects TVCO’s view, the estimates provided by the scientists and TVP1 suggest that laboratories will only push through samples in three days if it has a high priority level). Another perceived benefit of automation is the
214 reduction of human involvement in the process, thus reducing the possibility of human error (Hammond and Caskey 1997). This was the case in the Thames Valley, where the use of robotics has meant that more samples can be analysed in less time (TVFS2) and with a lower rate of contamination, although operators are still required to move the samples between the different processes. Automation has been an unintended result of the popularity of DNA profiling, which has created the need for a more streamlined and efficient process.
A growing concern among the Thames Valley criminal justice practitioners was the need to store DNA samples for long periods of time. One SOCO brought the researcher’s attention to the station’s freezer to illustrate the limited storage space available. The freezer was almost full and samples were piled on top of each other without any clear system. TVSOCO2 considered the storage problem as an obstacle to their work because the freezers can become overloaded. The lack of storage has also had an effect on the types of exhibits collected at crime scenes. SOCOs will be more inclined to swab larger exhibits rather than collecting the entire item because there is nowhere to store the larger items. As a result, evidence may not be available in a prosecution or exoneration case because the exhibit was not collected.
Another problem raised by the Thames Valley criminal justice practitioners related to the inadequate communication between the different groups. Tilley and Ford (1996: 15- 17) first raised concerns about problems with communication between UK police, SOCOs and scientists in the mid 1990s, when they found that police were often unaware of when to call SOCOs to crime scenes and provided insufficient information to collect valuable evidence. A decade later, communication between the police, scientist and SOCOs in the Thames Valley is still limited (this was also discussed in Chapter Eight in regards to police submissions of samples to laboratories).
SOCOs, the police officers in charge of the case, the Forensic Submission Unit (FSU), and the scientists at the laboratory are all involved in the process of creating a DNA profile. The process is partially centralised, with the FSU acting as intermediary between the laboratories, SOCOs, and police (TVCO). However, this process only
215 concerns the formal result of the laboratory. Prior to this time, both the SOCOs and police officers were able to contact the laboratory to request further information or different tests. Officially, the senior SOCO is the only person authorised to contact the laboratory to request additional tests. However, the laboratory will often receive calls from police officers requesting more information or for other tests to be conducted. TVP1 indicated that his team contacted the laboratory daily to monitor the progress of a sample, or to ask for tests to be re-done where there were inconclusive results.
The SOCOs can become frustrated when police officers speak directly to the laboratory:
I had an officer come into me … he wanted an awful lot. I didn’t think it was worth it, so we targeted the items we thought would give the best results …Now unfortunately, the scientist have [sic] spoken directly with the officer … Now if that scientist had come to me first, I wouldn’t have been getting all these emails requesting lab forms completed by the officer to make more submissions, which is wasting his time, because I won’t authorise it (TVSOCO5).
In the case described by TVSOCO5 the scientist has created more paperwork, confusion, and may have misled the police.
The system of collecting samples from suspects in custody was cumbersome and inefficient. According to TVCO, the system has improved since 2000 when a centralised unit was established in the Thames Valley. Prior to 2000, the Thames Valley police were taking samples from people in custody without accurately recording the details of the suspect or whether a sample had been taken. As a result, the same people were being sampled multiple times which has led to a ten percent duplication of profiles on the database (TVCO). The duplication of samples creates legal and bureaucratic concerns, especially for individuals who need to be removed from the database but are not because only one of their multiple entries is removed. While the current system is an improvement, many police officers remain confused about the procedures for collecting samples from people in custody. Over-sampling also impacts adversely on the resources allocated to DNA testing and police time.
216 Impact on investigations
As already examined in previous chapters, DNA evidence has changed a number of the processes involved in investigating criminal offences. For Laycock (2005: 7), “the development of DNA … [has] already made a significant impact on the way in which crime detection is approached”. The police officers in this study identified two new investigative techniques that DNA evidence has provided. The first is mass screens and the second is surveillance techniques for police interviews.
Mass screens DNA profiling has impacted on the process of policing through the provision of intelligence-led screens, or mass screens. Mass screens refer to the process where the police request DNA samples from large groups of individuals. The police will try to narrow the potential suspect population by using eyewitness identification to identify gender, age groups, ethnic groups, or geographical areas. As of 2002, there have been 230 intelligence-led screens in England and Wales, with a 41% success rate of reported matches (Home Office 2002). The Home Office further claimed that the cost of an investigation was reduced when mass screenings were implemented (Home Office 2002: 1).
Despite this, mass screenings have had a limited impact upon investigations in NSW and the Thames Valley. The Thames Valley police were sceptical about the use of the mass screens in the majority of cases because “you are talking about huge amounts of money” (TVP1). As the average DNA sample costs approximately £280, the cost of sampling several hundred people would be expensive and time consuming. Substantial resources are required for mass screens, because the police screen will usually cover a five hundred-metre radius of the crime site, which will include between 5,000 and 6,000 individuals in the Thames Valley. Consequently, mass screens are reserved for the most serious and prominent crimes, usually murders and serial sexual assaults.
The evidence provided by the Thames Valley police also suggests that mass screens are not as efficient or successful as the Home Office suggests. The process of conducting a
217 mass screen is cumbersome. According to TVP6 the process of taking samples in a mass screen involves:
… knocking on doors, taking samples. We have to fill in the various forms at the same time - there is a consent form. We should take at least two details about identity – Polaroid photograph so that if that person is the offender there is no doubt that you’ve got the wrong person … by taking the ID side of it, whether it’s just a thumb print or a Polaroid photograph, you’ve actually got some record of who actually gave that sample.
Substantial time and police resources are required for the process of collecting samples and confirming the identification of every volunteer. Mass screens create additional paperwork and storage problems to those already experienced by the Thames Valley police.
The NSW approach to mass screening is based on the Thames Valley example (NSWP3). However, the NSW police have altered how they conduct screens to avoid some of the problems experienced by the Thames Valley. For example, the NSW police are now aware of the need to have public support prior to a mass screen because of the problems caused by delays and resistance. In a case at Wee Waa, the police were asked to conduct a mass screen by the local MP who had the support of the community (NSWP4; Roberts 2000). According to NSWP2, the use of mass screens should only be used:
… when you have nothing else going for you and you have a limited sample or population. Wee Waa would have been a classic example of that. Basically, the investigation was going nowhere and we knew it would be impossible; you had a very small population sample. It’s not like you would pick every white Australian male over the age of thirty who lives in Sydney. I mean that is ridiculous.
The Thames Valley police agreed that mass screens should only be used when other investigative methods had failed.
Like the Pitchfork case, a number of mass screens in NSW and the Thames Valley were concluded before the DNA evidence identified the offender. In the Wee Waa case, the offender pleaded guilty before the tests were finished because he believed that the tests
218 would eventually identify him. In the Thames Valley, two high profile mass screening cases were solved through eyewitness identification and police interviewing techniques (TVP6). This reinforced the values of traditional policing methods and the need for integrating policing tools.
DNA request surveillance The use of DNA and DNA databases have provided police with an additional form of surveillance (Gans 2001a). In 2001 Jeremy Gans argued that DNA profiling introduced two unintended techniques of surveillance into modern policing. The first technique was DNA profile surveillance (using the database to track offenders) and the second was DNA request surveillance. The responses from the criminal justice practitioners within this study suggested that the police participated in the second surveillance technique. According to Gans (2001b: 168):
‘DNA request surveillance’, allows the observation of individuals’ fear of a match between their DNA and material connected with a past (or future) crime, by assessing their response to a request to provide a DNA profile voluntarily.
This form of request surveillance was identified by some of the police officers in NSW. There has also been evidence to suggest that people who refuse to submit a DNA sample are automatically associated with guilt (Corns 1992).
In an investigation, the police will “wonder why” an individual refuses to provide a DNA sample for an investigation (NSWDPP2). Although none of the practitioners acknowledged this, NSWP3 did state that police officers would become suspicious if a person of interest declined to provide a DNA sample:
I think anyone would lie if they said, ‘oh no we don’t care if people don’t supply it [DNA]’, that’s rubbish. But if you apply a method of identifying persons that you want to obtain a profile from and those parameters are applied to and if a person declines, out of those parameters, those people will already have a degree of suspicion attached to them. We’re not talking about people where there is no suspicion …
However, innocent individuals may not provide a sample for a variety of reasons. For example, in NSW in 2004 the Bulldogs National Rugby League (NRL) team was asked
219 to submit DNA samples to the police after an allegation of gang rape. One player refused to provide a DNA sample causing speculation by the police and the general public. In the following days, the Sun-Herald’s headline was ‘Why I’m refusing to take the DNA test’ (Prichard 2004: 1 and 5). The player decided to publicly defend himself against suspicion, despite the fact that he was not alleged to have been at the crime scene. This case indicates the extent of Gans’ (2001b) request surveillance and the negative effects it can have on innocent individuals.
In addition, the interviews with police officers suggested a need to add a new technique of surveillance to the original two developed by Gans (2001b). Police are now using a form of DNA surveillance in interviews to test the reliability and credibility of a suspect. This third form of surveillance works in a similar manner to DNA request surveillance. Instead of observing a suspect’s reaction, this form of surveillance is aimed at encouraging suspects to provide conflicting stories during a recorded interview. The NSW and Thames Valley police officers will usually reserve DNA evidence until after the suspect has provided a version of events. As TVP2 commented, “I’m very keen not to provide them with opportunities to say how it might have got there prior to them knowing that it exists in the first place”. The police will then gradually introduce the evidence.
This form of DNA surveillance is evident in the following example of gang rape provided by NSWDPP2, where the accused was demonstrated to have changed his story on three separate occasions:
… The police gathered the exhibits from the crime scene. He participated in a recorded interview and he said, ‘I wasn’t there’. The police had the exhibits tested and the profile was consistent with his profile found at the crime scene, and they said to him ‘we’ve got your DNA profile at the crime scene”. And he said in a recorded interview, ‘Oh, that’s right, I remember now – I was there, but I only had sex with one of them’. Then, the Police plotted on the map where the exhibits were found and there were two … so the evidence was consistent with … he had sex with both complainants … So he did a third interview where he said, ‘Oh I remember now’. So the DNA evidence led to the
220 Crown being able to prove that he lied about his involvement and being able to rely on those lies as consciousness of guilt.
In this case, the police staged the introduction of DNA evidence to influence the suspect’s version of events. Like DNA request surveillance, the police are assessing a suspect’s response to the presence of DNA evidence at a crime scene. In these cases, inconsistencies in the suspect’s version of events are used to undermine credibility. The prosecutor could then use the evidence that the suspect had changed his statement to draw an inference of guilt.
Some prosecutors believed that DNA evidence had increased the number of guilty pleas, especially as offenders often do not appreciate the fallibility of the evidence (NSWDPP4). In some cases, the defence lawyers themselves do not understand the fallibility of DNA evidence and will advise their clients to plead guilty (NSWDPP5). In other cases the offenders are likely to wait until the DNA evidence has been presented and then plead guilty (NSWDPP5). NSWJO3 believed that DNA had increased the likelihood of a guilty plea in the following scenarios:
Particularly with people who have done offences and genuinely can’t remember them because they are drug addicts. But for instance they have cut their hand as they broke through the glass window, left a DNA sample, have been dealt with for other offences and then the stale offences have come to light … I dealt with a man who was serving sixteen years non-parole and a very bad stale … series of sexual assaults against a woman came to light, and he put up his hand immediately.
Although both scenarios are anecdotal they illustrate the potential for DNA evidence to resolve unsolved cases and encourage guilty pleas. A plea of guilty, if accurate, is beneficial to the courts as it saves time and resources (NSWDPP1) as well as trauma for victims. However, any correlation between guilty pleas and DNA evidence is simply based upon this anecdotal evidence, as well as the personal beliefs of the practitioners in this study.
221 Unintended consequences of forensic DNA profiling
DNA evidence has not been without its problems and it has received substantial criticism over its infringement of civil rights and the ability for it to falsely implicate a person in an investigation and conviction. As Lee Rhiannon MLC, from the NSW Greens Party, stated:
DNA is not a perfect crime-solution tool … and it should not be used as an excuse to infringe on privacy and civil rights … Many members of the Parliament seem to think that DNA is the magic silver bullet that will solve crimes in New South Wales. Just add water and –voila! – the guilty person appears. That appears to be the approach of some members (NSW Legislative Council 2006 Second Reading: 2795).
A number of the NSW and Thames Valley practitioners recognised that the use of forensic DNA profiling could lead to what Balzac and Zupanic (1999: S3) term “deleterious consequences”. More deleterious consequences were highlighted in NSW than in the Thames Valley, perhaps because of the availability of criminal lawyers, and judicial officers for interview. Overall, the Thames Valley practitioners were more aware of the beneficial aspects of DNA profiling than of the potential for miscarriages of justice, or loss of civil rights to occur. Not surprisingly, the defence lawyers were more aware of the potential for miscarriages of justice than some of the other criminal justice practitioners. At the time of interviewing, the DNA Review Panel was not operational, which may have affected some of the responses.
The current literature identifies a number of areas of concern where the use of DNA evidence could have unintended consequences. In particular, “…academics and civil libertarians have expressed concerns relating to loss of privacy, civil liberties and the increase of state surveillance” (Urbas 2002: 149). This section of the chapter will examine how incorrect results could falsely implicate a person in a criminal investigation or prosecution, and how this in turn leads to the potential for a miscarriage of justice to occur; the loss, or erosion, of certain civil liberties with the introduction of DNA evidence; privacy concerns relating to the retention of DNA samples and future genetic research; and the potential for DNA evidence to be misused by criminal justice practitioners.
222 False implications As highlighted in Chapter Two, there are a number of problems with the application of DNA technology and the interpretation of the results. Some of these problems include: laboratory errors, contamination, false positive matches due to kinship, and adventitious matching. These problems can lead to the police falsely charging individuals, or falsely freeing individuals:
In the process of collecting material evidence, DNA analyses and the interpretation of results can lead to errors which in the majority do not have deleterious consequences, as these errors can be quickly detected and corrected. In extreme cases they can lead to the conviction of innocent people or the acquittal of persons guilty of criminal activities (Balazic and Zupanic 1999: S3).
Although many of these problems can be avoided by adopting a “best-practice” approach, as discussed by Burton (2004) and Edwards (2006) (see Chapter Two), lawyers should be aware of the potential for these problems to occur and examine the evidence thoroughly. As there are no known error rates for laboratories in either the Thames Valley, or NSW, it is difficult to assess how common these problems are, or whether these problems have already led to “deleterious consequences”.
Contamination of samples can occur at a number of different stages of the process of an investigation. Volume crime victims can contaminate samples if they touch blood, or try to move the items after a burglary to “tidy up” (NSWSOCO3). Other examples include: if a suspect’s clothing is stored in the same area as the victim’s clothing cross contamination can occur, or where a suspect and a victim have both been in a police car, their DNA could be transferred onto their respective clothes (TVP3). An individual could be “wrongly accused or convicted of a crime” if the DNA was innocently transferred to the crime scene (NSWSOCO4).
Although there are procedures to minimise the risk of contamination, some of the criminal justice practitioners were concerned that current procedures could potentially lead to cross-contamination. For example, NSWSOCO1 was concerned that the DNA Kit could be regularly exposed to contamination:
223 I’ve often wondered how valid it is, and it may not be a problem, but taking the same DNA Kit, it travels around the back of the car and it gets taken from scene to scene. I don’t know if any legal people have got their heads around that, and maybe looking at transference in that way. Yeah, they’re opening the Kit, quite often they’ll open up the Kit, go and do the job, come back, close the kit up, with or without taking their gloves off at times.
In this scenario, the officer was concerned that SOCOs could be transferring DNA from one Kit to another, with either crime scene profiles or their own DNA. However, it is unlikely that this is a problem, as the exterior of the Kits are not examined, and the scientific community has not flagged it as an issue (whereas they have raised issues of cross-contamination through air-conditioning vents at laboratories). In addition, SOCO’s can be asked to provide a comparison sample if the laboratory identifies an unknown sample, which alleviates some of the concerns expressed by NSWSOCO1. Despite this, the above quote demonstrates that some criminal justice practitioners are still concerned about the ability for DNA samples to become contaminated.
The pressure placed on laboratories to obtain DNA samples could lead to the occurrence of miscarriages of justice. Although scientific fraud is a rare occurrence, Aronson (2007: 203-206) recounted several US cases where scientists have intentionally created misleading and incorrect laboratory results in order to declare a match. As already discussed in the previous chapter, some of the Thames Valley police officers believed that if additional pressure to find a profile were placed on scientists, then they would work harder and be more meticulous. For example, TVP1 commented that:
… experience tells me that your ability to get a profile is only as good as your scientist. Unless you get a hold of your scientist and shake them down you aren’t going to get a result. Sure enough the first time we didn’t get a sample … So we sent it back and they got nothing. And it was on the sixth time that we sent it back and they got a full DNA profile …
TVP1’s position is disconcerting. A DNA sample needs to be examined impartially and without expectations. Similarly, the process of continually re-sending samples to the
224 laboratory to achieve a different outcome could result in the scientist declaring a match because of pressure rather than an actual match occurring.
As already mentioned, Aronson (2007: 203) discusses several cases in the US where scientists have “twisted” results to inculpate innocent people. However, in some cases, the re-testing of samples could prove to exonerate a person, as in the Button case. When police request a sample to be re-tested, they could be asking for a different area of the exhibit to be tested to try and exclude (or include) a person; rather than requesting for the same area to be re-tested for the purpose of finding a pre-defined result. If scientists are pressured into finding a match, innocent people could be wrongfully charged and convicted of a crime. It is important to note, however, that accidental laboratory error or contamination is a more likely reason for incorrect results than intentional scientific fraud.
Another area of concern is the potential for DNA evidence to be transferred or planted at a crime scene. The most realistic explanation of transference, and often a difficult scenario, is where a person was at the crime scene at a different time (TVP3; TVSOCO3). DNA can also be innocently or secondarily transferred to a crime scene (TVP3). This has been raised in several trials and appeals in both the UK and NSW. For example, in the UK case of Regina v Codner, Kavanagh [2006] the defence raised the potential for DNA evidence to be transferred innocently to a crime scene.
Some of the practitioners also raised the potential for offenders to plant DNA evidence at a crime scene. As TVP4 commented:
There is a concern that DNA could be planted. In some cases, the course of justice could be perverted, by putting other peoples’ DNA at a crime scene. Which is why you can’t rely on DNA alone … Offenders might use someone else’s tools and leave them at a crime scene to muddy the waters. Whether offenders are intelligent enough to think of these things, I’m not sure.
In this case, TVP4 highlighted the danger of relying solely upon DNA evidence and the need to have other corroborating evidence.
225
In addition, some of the defence lawyers and one of the NSW SOCOs raised concerns about police fabrication. For example, NSWSOCO2 commented:
The 94 Royal Commission in NSW showed, unfortunately … that police services are not infallible to corruption. And I think you will find that is a big danger with DNA evidence. That’s where I think a large part of the population is very suspicious in respect to it.
That is, there is a possibility that the police could fabricate DNA evidence at a crime scene, or on exhibits already collected. NSWD3 also argued that there was a danger of police officers fabricating DNA evidence. One case described by another NSW defence lawyer in this study highlights the potential for police to fabricate evidence:121
I advised in a case last year, where some boys were arrested for break and enter and taken back to the police station. They were given a drink while they waited for their parents to arrive. Crime Scene Investigators later went to the scene and they found a bottle of Coke at the scene, which matched one of the young boys - the DNA from the Coke bottle. The owner of the property, when he noticed the break and enter had taken photographs. The photographs do not show the Coke bottle where it was later photographed. And funnily enough the boys were offered a Coke at the police station.
While this is the opinion of just one defence lawyer, there have been cases that have also alleged criminal misconduct in the fabrication of DNA evidence at a crime scene. For example, the NSW case of R v Lisoff (1999) NSWCCA 364 also raised questions about the willingness of police to fabricate DNA evidence. In this case, the prosecution presented evidence that indicated that the defendant’s tracksuit pants, which were seized by police immediately after his arrest, were stained with the victim’s blood. However, the defence argued that the blood on the pants originated from post transfusion blood and was planted on the pants by police (at [5]). The suggestion that police could fabricate DNA evidence reinforces the value of corroborative evidence to minimise the danger of a miscarriage in justice. The DNA evidence was ruled inadmissible at trial,
121 This defence lawyer’s code has been removed to ensure anonymity of the interview data. 226 but on appeal the court found that the contaminated evidence should have been left for the jury to decide upon.
Scientists also need to be careful about how they view DNA evidence, especially when some scientists “get too arrogant about it and think that it’s magnificent - 100% infallible” (NSWGS1). For instance, as NSWJO5 acknowledged, there have been cases of “false DNA or inaccurate DNA readings overseas, which have resulted in serious convictions” based on laboratory reports. As the scientists handle the samples and make a subjective decision about the likelihood of a match, the fallibility of a DNA profile is increased and the likelihood of a match could be overstated and incorrect (NSWDPP4).
Erosion of civil rights A number of authors have written extensively about the erosion of civil liberties caused by the introduction of forensic DNA evidence. As police powers are continually expanded, traditional civil rights such as the right to silence and privilege against self- incrimination are slowly eroded:
Herein lies one of the fundamental contradictions which is generated by the incorporation of DNA technology into criminal justice practices. On one hand, DNA technology becomes useless unless the suspect is ... forced to provide a body sample, yet on the other hand, the very legitimacy of Anglo criminal procedure and practice is premised upon the general presumption of innocence and the right to silence. It is conceptually difficult to reconcile the forceful taking of a suspect’s blood with the rhetoric of presumption of innocence, the right to silence, and the privilege against self- incrimination (Corns 1992: 21).
These problems are not unique to DNA evidence. Most forensic science techniques afford a similar loss of civil liberties, and few of these techniques have been challenged or questioned in the public arena (Corns 1992: 8).
Sections of the NSW and UK legislation have been designed to protect the rights of the individual. For example, in NSW the police are obliged to obtain consent or a court order before taking a sample. This means that a suspect has the right to refuse to provide a sample to the police (akin to right to silence). In addition, in NSW, the
227 destruction of samples is required when a person is acquitted to protect the person’s privacy rights and to provide future protection against self-incrimination (Kirby 2001: 10). While these laws have been instituted to protect the civil rights of an individual, the reality is that police will often use a refusal to provide a sample as evidence of guilt. People who refuse to provide a DNA sample, or do not explain why their DNA was somewhere, are treated with automatic suspicion. Civil rights such as privilege against self-incrimination and the right to silence have been further undermined through the creation of DNA databases that not only allow cold hit searches, but familial searching which targets family members who have never been in contact with the criminal justice system before (Haimes 2006; Levitt 2007).
A number of civil liberty issues have been raised concerning the type of profiles that are included on DNA databases (Duster 2003; Guillen et al 2000; Dundes 2001). Commentators have argued that while it is important to have a database of convicted felons, a wider database is unjustifiable because of the erosion of civil liberties (Mayer- Schonberger 2003). In contrast, other commentators have argued that a population-wide database would represent a fairer system, where everyone would have the same level of civil rights (Kaye et al 2001: 5; Jeffreys 2004). Duster (2003: 19), however, challenges this view by arguing that universal databases would continue to target the already criminalized and under-privileged sections of society, whilst ignoring other types of crime such as white-collar crime. Another set of commentators are opposed to the concept of databases in any form. For example, the Canadian Women’s Group was opposed to the introduction of a national DNA database because they believed that it would negatively affect those victims of sexual assault that did not have DNA evidence (Kubanek and Miller 2003: 1).
The databases were also a source of concern for some of the criminal justice practitioners. Whilst some individuals believed that everyone should be on the database, TVP4 argued that it was a “massive infringement of rights” to take DNA from innocent people. In recent years, there has been a growing concern about the number of people included on DNA databases and expanding police powers around the world. In particular, there has been a growing concern about the collection and retention of DNA
228 profiles from juveniles. For example, in 2005 the UK police sampled and retained the DNA profile of a thirteen-year-old girl who had thrown a snowball at a police car (Wall 2005b). In another case, a 14-year-old girl who “pinged” (pulled) a schoolmate’s bra had her DNA taken when charged with common assault of a sexual nature (Cunningham 2006). Both these examples highlight the police power to take samples for offences that many people would consider pranks and raises questions about whose DNA samples should be collected and retained. While there are multiple arguments concerning the correct level of inclusiveness on DNA databases, there are a number of areas where current databases are already infringing on civil liberties; these relate to issues such as incorrect information, over-representation of indigenous people, and familial searching.
One NSW prosecutor was concerned that incorrect information could be stored on the database, which could in turn result in the occurrence of injustices. According to NSWDPP1:
I have concerns of any database … But there is no such thing as a perfect library of anything. Things go missing, things get replaced or inadvertently misfiled … With the criminal justice system the problem is that often times you are dealing with people who are in custody for long periods of time before the thing is finished. You might find out there is something wrong with the process six months into it and that is six months where the accused person has been in custody improperly.
This prosecutor was concerned about the accuracy of the data entry of DNA profiles and information on the database. Inaccuracies on the database could cause serious miscarriages of justice to occur, especially if an individual is placed in custody unfairly as NSWDPP1 described. In addition, profiles can be retained on the database illegally. In one example, the New Zealand authorities conducted a mass screen without later destroying the volunteer samples as required by legislation (Saul 2001). This infringement of the legislation increases the concerns about the legitimacy of databases and their role in the criminal justice system.
229 There is also a potential for the wrong name to be attached to a DNA profile, which could mean that the police may not identify the mistake until somebody has been falsely arrested. In the past year, numerous database errors have been discovered on the UK NDNAD. Cockcroft (2007) commented on a Freedom of Information request that revealed:
Between January and November [2007] 1 450 demographic discrepancies have been discovered and rectified. Some of these are spelling errors, date taken amendments and Force code amendments. The Custodian Accreditation Service has identified and logged 111 unexpected results – possible errors – for the financial year 2006/07 that have resulted in the deletion of a profile or an amendment to the profile (a spokesperson for the National Policing Improvement Agency cited in Cockcroft 2007).
In another media report, it was suggested that the NDNAD contained more than 500,000 false or wrongly recorded names, because of people providing false names or spelling mistakes entered on the records (Helm 2007). The recording of incorrect names occurs when people give false names, or where offenders provide samples for other individuals, which occurred recently in an American institution (Scoville 2006). These inaccuracies could result in people being accused of offences they did not commit. In addition, it raises concerns about the desire to expand the database and the potential for more inaccuracies to be recorded.
Several academics have raised questions about the impact of databases on individual privacy rights and the creation of ‘suspect societies’. As McCartney (2004: 174) explains:
… there will most certainly be consequences [of a comprehensive national database] in terms of the power of state surveillance and social control apparatus, individual privacy rights and the potential ‘chilling’ effect of suspicion falling on all of us … It is far from clear that such a database would eliminate, rather than perpetrate miscarriages of justice, while the growth of social injustice, particularly in terms of discriminatory targeting of suspects for DNA sampling, may in reality result.
The creation of DNA databases has changed the power relationship between the citizen and the state (Corns 1992: 8). For example, it has been argued that databases continue
230 to disadvantage Indigenous people and unfairly attribute suspicion to family members of those convicted of a crime (through familial searching).
DNA databases can contribute to the problem of the over-representation of minority groups in NSW, and in particular Indigenous Australians. As the number of Indigenous Australians found in the NSW criminal justice system, and particularly the gaols, is already high, there is a higher likelihood that there will be an over-representation of Indigenous people on the database (Gardiner 2002). As NSWDPP2 argued:
Look, there is a huge over-representation of Aboriginal people in gaol, which means that all offender testing includes samples of those Aboriginal people on the database. Which means that any cold hit results are going to be higher for the Aboriginal population, which means there are more Aboriginals in gaol, which means there are more Aboriginals on the database, so it’s an unfortunate cycle …
This suggests that the use of databases for cold hits reinforces this problem of over- representation of Indigenous people in the criminal justice system. Concerns about the similarity of Indigenous profiles are still being addressed in Australian courts. In Bropho v Western Australia [2007], for example, the defence expert unsuccessfully challenged the Crown experts’ creation of population statistics for Indigenous people.
Similar concerns have been raised in relation to the UK NDNAD, with civil libertarians arguing that databases reinforces the racial biases already in existence in the criminal justice system. For example, there have been claims that one third of the black male UK population is on the NDNAD (Wallace 2006: s27) and that “the DNA profiles of nearly four in 10 black men in Britain are on the national police databases, compared with fewer than one in 10 white men” (Randerson 2006). To avoid biasing ethnic minorities, there have been calls to include everyone on the database (Rothstein and Talbott 2006). One of the UK’s most senior judges, Lord Justice Sedley proposed that every person who lives in England and visits England should be included on the NDNAD (2007 cited in BBC News 2007b).
231 The cycle described by NSWP2 raises serious concerns about the routine use of DNA databases in the criminal justice system. DNA databases can be used to allow the police to identify family members of suspects or victims. Two profiles can be compared on the database to determine if there is a familial link.122 For Levitt (2007: 239):
There are obvious concerns about individual privacy and stigmatization, both of the individual on the database and the relatives, and effects on relationships within the family particularly where genetic links, or the lack of them, in unexpected.
Familial searching impacts disproportionately on ethnic groups already over- represented on the databases (Haimes 2006). In particular, the use of familial DNA targeting is a concern because the DNA profiles of Indigenous Australians are more likely to be similar than non-Indigenous Australians (Boettcher 2005). This means that the family members of Indigenous suspects already on the database are more likely to be targeted than the family member of a non-Indigenous suspect.
However, the Thames Valley police do not routinely use familial DNA targeting (TVP6) and the NSW police reserve its use for missing person cases (NSWP1). One of the reasons why TVP6 does not use it, is because he believes that there is a tendency to look at the profiles with the “highest proportion of matches, whereas it could be the one with the lowest”. Additional police investigations are then needed to determine the likelihood of the family member committing the crime. A number of the police officers were not aware of familial DNA profiling because it had not arisen as an issue in earlier investigations. For example, three of the six officers in the Thames Valley were unaware of the term.
The collection of samples can also constitute an infringement of the basic human dignity and autonomy rights of the individual. The Australian Law Reform Commission (ALRC) (2003) and the Model Criminal Law Officers’ Committee (MCLOC) (2008: 5) recognised that in some circumstances the collection of a sample could involve a “physical harm or trespass to the person” if the sample is taken without consent.
122 Usually there is a partial match made on the database and the police will subsequently interview the family members of the person on the database. 232 According to one current Victorian prisoner, the sampling of prisoners is a debasement of humanity (Minogue 2005: 172). Minogue (2005: 171-172) provides a very vivid and subjective description of the level of force (capsicum spray, riot shields and handcuffs) used by prison guards to obtain DNA samples from inmates:
The handcuffs or ties are applied so tightly as to cause extreme pain ... All of this is part of the ‘pain compliance’ philosophy, which involves inflicting so much pain on the individual that it has a paralytic effect so that they comply without any thought of resisting ... what is commonly thought of as torture. During cell extractions, I have heard prisoners’ (muffled) screaming, pleading to God not to let them die.
From this description, it is questionable if ‘reasonable force’ was used to collect DNA samples from the prisoners, and it highlights that basic human rights are being violated. While, this account cannot be generalised to the experiences of all inmates subjected to DNA testing, it does strongly suggest the need to conduct research within the prison setting to determine how sampling is conducted, and whether the basic human rights of prisoners are being violated.
The ability for the state to obtain samples by force highlights the shift in power between law enforcement agencies and the individual. In many circumstances, it is impossible for individuals to refuse providing a sample, because a refusal providing police with the ‘reasonable suspicion’ necessary to obtain a court order. In the example of mass screens, police are able to conduct “fishing expeditions”, where everyone is assumed guilty, and any objection to providing a sample is associated with guilt (McCartney 2004: 169). This was exemplified in the Bulldogs case (which was described earlier in this Chapter), where all of the players were asked to provide samples (even when they were not identified by the victim), and those that refused were treated with suspicion. The use of DNA profiling as a “fishing expedition” has placed an onus of proof on the citizen to prove that they were not involved in a criminal offence.
The defence lawyers were sceptical about the use of cold hits on DNA databases and suggested that the hits could lead to the occurrence of miscarriages of justice. NSWD1
233 provided one scenario where it was easy to understand how a miscarriage of justice could occur:
Your client comes in and says that ‘they’ve found my DNA at a break and enter in Vaucluse on the 5th January 1989’. You ask, ‘well what were you doing on the 5th January 1989’? And they go ‘duh’ … the finding of your sample at a scene, if you couple that with some other evidence, it’s very powerful and a lot of people plead guilty on it. You want to rebut it? How are you going to provide an alibi for ten-fifteen years ago?
In this type of case, it would be very difficult for a defence lawyer to argue against the charges because the defendant would not remember where they were ten to fifteen years ago. In these types of cases, it is important for the DNA evidence to be corroborated by other types of evidence in court to avoid a wrongful conviction.
Currently, DNA evidence is presented in court as a probability that it originates from the accused. NSWD1 was concerned that this presentation, and general perception, will shift in the future. Specifically, NSWD1 commented:
At present it is used to identify suspects. In the future, I suspect and fear that it will be used to identify offenders. There is a difference, or the presence of DNA is sufficient to prove someone’s guilt. At present the law says a match between a sample and the person’s DNA shows that they could provide that sample and I suspect that there will soon be a presumption that it is a match. So we won’t be talking about possibilities, we will be talking about actualities.
The comment made by NSWD1 illustrates the acceptance of DNA profiling by the criminal justice system, and the need to remain cautious. Indeed, his fear has already been justified, as seen in the case of R v Wakefield [2004], where the judicial officer argued that DNA evidence provided matches, rather than probabilities. The presence of DNA evidence is not the equivalent of guilt. As already mentioned, the sample could have been contaminated or an incorrect profile created. The potential over-reliance on DNA evidence could lead to a number of miscarriages of justice, where people could be falsely included in a match or have their DNA innocently transferred to the crime scene.
234 Privacy concerns Since its introduction into the criminal justice system, there have been privacy concerns surrounding the use of forensic DNA evidence. The ALRC (2003: 976) suggested that DNA sampling involves the intrusion of three forms of individual privacy: bodily privacy, genetic privacy and behavioural privacy. The collection and retention of DNA profiles is viewed as intrusive because DNA is taken from the body; it can reveal genetic information about a person, including their physical characteristics, ethnicity, and the propensity for disease; as well as reveal behavioural traits such as the propensity to violence (Etzioni 2006; ALRC 2003). For Gans and Urbas (2002: 6):
A further, unquantifiable cost of the use of DNA evidence is a possible reduction in individual freedoms, notably the right to privacy. The use of DNA evidence involves invasions of bodily integrity and the scrutiny of individual genetic information, some of which may be coerced, but lawfully and otherwise. While the infringements of privacy from DNA sampling procedures and the profiling of non-coding DNA are, arguably, minor, the increased may lead to “function creep”, whereby more intrusive infringements become acceptable …
Function creep refers to the process where forensic DNA databases may be misused by governments to conduct genetic research (Walsh 2005b; Meagher 2000; Saul 2001). Organisations such as Genewatch in the UK argue that if genetic identifying information was discovered, it could be sold to insurance companies in order to assess people’s propensity for disease when determining their level of life insurance. There are also wider concerns that the DNA evidence on the databases will be used to research the “criminal gene” (Allen 2003; Nelkin and Andrews 1999).
Concern about the storage and access to genetic information has been widespread since the early 1990s and remains unsolved. NSWD4 believed that the government would try to extend the database past the “forensic aspirations that [they] were originally intended” and use the database for medical information and to search for the criminal gene. Additional concerns relate to who has access to the information stored on DNA databases and whether the information will eventually be used by insurance companies to screen clients (Annas 2003; Parthasarathy 2004); by parents seeking paternity tests
235 (Nelkin and Lindee 1995: Australian Medical Association [AMA] 2000; Salleh 2000); or by law enforcement agencies to identify the criminal gene (Cole 2003: 23-24). For example, in 2001 there were plans to collect DNA samples from UK hospital patients for submission onto the NDNAD and for pharmaceutical companies to buy the samples for research (Barnett and Hinsliff 2001). In addition, in 2006 the Home Office permitted a controversial genetic study to be undertaken on the police database held at the LGC laboratory to determine whether a suspect’s ethnic background or skin colour could be predicted (Barnett 2006); and nineteen other research projects have been approved by the NDNAD Strategy Board (Levitt 2007: 241). The existence of the DNA database opens avenues for the abuse of power; for example, if the database did include medical information about an individual it could potentially be used against a person for insurance or immigration purposes.
The concept of using DNA profiling to establish biological causes of crime was a more abstract and “science fiction” danger that some of the criminal justice practitioners identified. NSWDPP1 compared the use of DNA profiling to phrenology (looking for a “criminal type” through physical characteristics), and argued that society is sceptical of DNA profiling because of the potential to predict criminal behaviour. For example:
In some respects, DNA profiling in its most science fiction form carries the threat that we can use it to predict behaviours and it’s the prediction of behaviours, as opposed to the proof of behaviour; that is the most worrisome for me (NSWDPP1).
For the prosecutor, DNA should only be used to identify individuals. It should not be used to suggest how an individual might behave, or as evidence that the person may be pre-disposed to violence or criminal behaviour. The concern over the science fiction aspect of DNA profiling becomes less like fiction as scientists are using DNA profiling to identify ethnicity and physical characteristics, such as the red hair gene, and beyond.
There are however ways to protect the genetic privacy of an individual. As Rothstein and Carnahan (2002: 159) point out, the concerns about using DNA profiles to determine genetic health risks, paternity tests, and genetic links to criminality “would be eliminated if only non-coding regions of DNA were analysed and the samples were
236 destroyed after analysis”. There are two main problems with this argument. The first is that it would mean that scientists would not be able to tell investigators physical characteristics about a person. While this is not a major concern, it could limit the usefulness of DNA evidence to investigators. The second problem is that the section reportedly used for forensic purposes has no identifying information about a person (see Appendix Two). This is one of the main points used to allay concerns about genetic privacy and the search for the criminal gene. However, for a scientist to inform the police that a suspect has red hair, or comes from a particular racial background, they must have performed specific tests that go beyond the standard forensic tests. This is an area that requires swift legislative attention.
Misusing DNA evidence Some of the criminal justice practitioners recognised that DNA profiling has the potential to lead to the conviction of an innocent person if DNA evidence is misused. NSWP5 identified the following danger:
… if it is considered to be the be-all-and-end-all. It’s only part of an investigation. If any component of the justice system relies on it too much, I think that is the danger. Because it is so powerful, there is a danger of people relying on it too much. I think investigators and defence personnel need to consider it as only one aspect and you need to look at the bigger picture and supporting evidence …
For TVFS5, miscarriages will occur:
… if people did try to take cases where DNA is the only evidence, there does need to be some other corroborative evidence. Especially with the systems we use at the moment, although they are highly discriminating, they don’t provide proof of identity in my opinion.
Although the prosecutor is more aware of how DNA evidence is used in a criminal trial, the scientist’s view provides another valid argument because they understand that DNA evidence by itself is often insufficient evidence to prove a person’s identity (because of problems with declaring probabilities and producing reliable matches due to laboratory errors). The statements by NSWP5 and TVFS5 suggest that criminal justice practitioners need to ensure that they do not become overly reliant upon DNA evidence,
237 or ignore its limitations with regards to laboratory errors, because profiles can be incorrectly classified as a DNA match.123 Currently, the Thames Valley Crown Prosecution Service and the NSW Director of Public Prosecutions would rarely prosecute with DNA evidence alone. However, where DNA evidence is introduced as the sole evidence, the judicial officer is required to provide instructions to the jury about the reliability of the evidence and the absence of other evidence types (TVP1).
An over-reliance on DNA evidence could lead to “lazy policing” and miscarriages of justice occurring (Haesler 2001b; Saul 2001). Haesler (2001b) argued that DNA “... makes for lazy policing. Instead of seriously investigating a crime, police may just take the sample and wait for a match”. The belief by NSWP4 that DNA profiling results in the “proper” investigation of a crime could create a culture where police ignore other types of evidence or come to depend on DNA evidence. This occurred in a UK case where the police arrested a man, suffering from Parkinson’s Disease, with break enter and steal. The arrest was based on a six-point match (instead of the usual ten points) despite the evidence that the man’s physical condition precluded him from committing the offence (Concar 2001). As already mentioned in Chapter Six, the NSW police held a man for two days while they waited for DNA evidence instead of reviewing closed circuit surveillance footage (Jensen and Emerson 2008). A reliance on DNA evidence is also problematic because it is not available in many circumstances, and in other circumstances may provide insufficient or misleading results.
DNA evidence can also be used to overturn previous convictions. In the past decade, there has been a growing awareness of the potential for DNA evidence to exonerate those wrongly convicted of a crime. Although this is a positive step, reducing the likelihood of the occurrence of miscarriages of justice, one police officer was concerned that it could lead to further miscarriages of justice. For example:
123 This can occur accidentally when a scientist misinterprets the bands creating the profile (extra bands can appear, especially in the case of mixed profiles where the individual donors have not been separated for testing). A scientist can also intentionally declare a match where there is none. 238 My concern is … that there is an identifying area where there should be DNA from those exhibits. Where is it? Well exhibits are destroyed. ‘Well there you are. I’m innocent’. I think there is a blank misuse by a large number of prisoners and by, this is a general concern, and by some prisoner advocacy groups about using the Innocence Panel. Because there will be a lack of exhibits for cases in the 1970s, in the 1980s and 1990s. There are only recent instructions that all homicide exhibits must be retained, so why should someone be acquitted because there is no longer an exhibit? (NSWP3)
This police officer has concerns that prisoners may be exonerated of crimes that they did commit on the basis that there is no evidence to prove conclusively that they committed the offence.
A second issue is that exhibits have not been kept, which means that there could potentially have been evidence to exonerate a person. For NSWJO3:
… where there is a reasonable possibility that a convicted person is not guilty, he should have every opportunity and every resource to establish his innocence in a society as wealthy as ours. If we can give eighteen billion back to the taxpayers we should be able to afford quality justice for everybody.
The majority of the criminal justice practitioners believed that offenders should be able to have their case re-examined. As NSWP3 later commented, if there was an exhibit that could exonerate an offender it should be used without hesitation.
Continuing problems
DNA profiling has had a significant impact on the NSW and Thames Valley criminal justice systems. In many instances, the changes were consistent across the two jurisdictions. For example, both the NSW and Thames Valley have experienced problems with backlogs and will have storage problems in the future. The manner in which investigations have changed is also similar across both jurisdictions. The police from both jurisdictions participated in DNA request surveillance and a new surveillance technique through interviewing the suspect. In addition, the potential unintended consequences identified by the NSW and Thames Valley criminal justice practitioners
239 were comparable, although more information was available in NSW through the criminal lawyers.
Despite these similarities, the extent of the impacts differed across the jurisdictions. As already noted in Chapter Five, the UK has expanded police powers and increased the number of people that can be included on the database. As a result, a number of the concerns of the UK practitioners related to the inclusion of innocent people on the database, while the NSW criminal justice practitioners were more concerned about not allowing certain sectors of the population to be included on the database. The UK police also had more experience with procedures such as mass screens than their counterparts in NSW. These differences have affected how routinely DNA profiling is used in the two jurisdictions.
This chapter has illustrated a number of the problems associated with using DNA evidence in the criminal justice system. In addition, it has challenged the proposition that DNA evidence is objective, reliable and the new gold standard. As Burton (2004: 103) argues, “the reliability of DNA evidence must be questioned because of the number of cases in Queensland and NSW where DNA evidence has been bungled”. While DNA evidence is unarguably a superior form of evidence compared to other types of evidence, such as eyewitness identification, there are problems associated with the application of the technology that need to be addressed before it is used at trial without corroborating evidence. The testing of DNA samples can be very subjective and not all tests are reliable. Unless criminal justice practitioners and jurors understand that DNA evidence is not infallible, and that it should rarely be used as the sole piece of evidence, it will lead to more cases were people are falsely accused, and convicted, of crimes.
This chapter, and the preceding chapters, have suggested a number of ways in which the processes of investigating and prosecuting criminal cases have been changed by the introduction of DNA evidence. Police and prosecutors can use DNA evidence to include or exclude a suspect, identify suspects through familial links, mass screenings, link multiple crimes, and solve cold cases via a DNA database. Despite these beneficial
240 uses, there are problems associated with using the technology. This chapter, and the others before it, provide substantial evidence that questions the infallibility of DNA evidence and its routine use by law enforcement agencies. There are too many problems with this type of evidence, and too much reliance on it by jurors, to use it without corroborating evidence. The following chapter provides a theoretical understanding of the issues examined in Chapters Five, Six, Seven, Eight, and Nine, and presents an overall view of how DNA technologies have impacted on the Thames Valley and NSW criminal justice systems.
241 CHAPTER TEN: UNDERSTANDING THE DEVELOPMENT AND IMPACT OF DNA PROFILING ON CRIMINAL JUSTICE
This chapter provides a theoretical examination of the criminal justice practitioners’ experiences and beliefs. The main findings from the previous five chapters are integrated in this chapter to answer the research questions. To reiterate, this dissertation is focused on six research questions, which investigate: what accounts for the proliferation of DNA evidence; how the introduction of DNA evidence has changed criminal justice processes and practices; whether there were any differences in the use of DNA evidence across offences; if its impact varies according to legal and historical contexts; whether its use has created any dangers; and the implications of the research for understanding technological change in criminal justice systems. The dissertation draws on the experiences of two criminal justice jurisdictions – NSW and the Thames Valley – to identify general trends and variations due to historical and legal differences.
Johnson, Martin, and Williams (2003) have observed that there have been two kinds of academic studies on DNA identification. The first centres on the institutional and socio- historical changes surrounding DNA profiling and DNA databases. The second focuses on the use of DNA identification evidence as expert or technical evidence. They have argued for a combined approach – that an examination of the use of DNA technology needs to “attend to the interwoven series of technical, legislative and organisational changes which have underpinned this development” (Johnson et al 2003: 26). This dissertation has taken a similar approach by examining both the socio-historical and technical changes (see Appendix Two for further details) that have accompanied the use of DNA profiling in the criminal justice system and analysing how it is used by practitioners.
Technological proliferation
The proliferation of DNA profiling is evident in both NSW and the Thames Valley, as demonstrated by the increase in the use of DNA evidence in criminal investigations and the criminal justice practitioners’ acceptance of the technology. Statistics and interviews
242 in both jurisdictions suggest that DNA evidence is being used in a wide range of offence types and is achieving a substantial number of hits and links between suspects and crime scenes, as well as from crime scene to crime scene. For example in the Thames Valley, DNA evidence was used to detect 478 crimes (through direct matches and incidents that were taken into consideration) in an unspecified period in 2005-2006, and the NDNAD recorded 49,247 matches between crime scenes and suspects for 2005- 2006 (Home Office 2006a: 35).124 In NSW, DNA evidence achieved 2,651 cold links in 2005-2006. The difference in time periods and the volume of crime committed makes these statistics difficult to compare, however, it appears that the Thames Valley has achieved more links with DNA evidence, which is not surprising given the higher level of resources available (see Chapter Six).
The extent of the proliferation of DNA technology in criminal cases can be explained by a number of factors. First, the marketing of DNA technologies as effective and reliable tools for criminal cases has ensured that DNA profiling has been accepted by the criminal justice system. Second, the technological transfer from the UK to NSW has facilitated the proliferation of DNA technologies in NSW. Third, the provision of resources to DNA profiling has ensured that it is used extensively in criminal cases. Fourth, the increasing level of knowledge about exactly what this technology can achieve, and its acceptance by criminal justice practitioners has enabled it to be used more effectively and efficiently in a wider range of circumstances. This increased awareness has led practitioners to comment that, “everybody thinks of DNA” (NSWP1).
Marketing DNA profiling The popularity of DNA profiling is partially the result of marketing. Technologies are designed to improve, assist, or regulate a social process. Brey (1997: 3) contends that technologies are expected to “bring enlightenment and liberation from toil and hardship”. Although Brey (1997) does not suggest that technologies necessarily achieve these goals, it is common for technologies to be marketed in these terms. In the case of
124 This suggests that the Thames Valley statistics are likely to represent a monthly figure. The problems with identifying the date range were explained in Chapter Six. 243 DNA profiling, both the NSW and UK governments have made strong claims. For example, in 2000 the NSW Premier, Bob Carr, promised that the new regime on DNA laws in NSW would “solve more crime, deter more crime, save more lives, and see that justice is done” (cited in Moldofsky 2000). The Home Office voiced similar claims, and in 2003, the then Police Minister Hazel Blears publicly stated:
DNA evidence has transformed the fight against crime. Our national database … has already helped detect thousands of repeat criminals. It allows police to speed up detections, make earlier arrests, results in more convictions, and helps solve old crimes (cited in Home Office 2003b: 3).
Both governments marketed DNA profiling to the public and criminal justice practitioners as a tool that would “enlighten” and speed up the process of an investigation, increase the accuracy of an investigation, and make the process of an investigation easier. So, according to both governments, DNA reduces work for police and “liberates” more victims. They anticipated that DNA profiling would transform the criminal justice system (and clear up more crimes). The substantial funding allocated to DNA profiling suggests that both governments expected DNA evidence to become a routine part of criminal justice practices.
Criminal justice practitioners have reinforced these marketing slogans by expressing similar sentiments in the interviews. The police and prosecutors in particular believed that DNA profiling increased clear up rates (TVFS4) and strengthened prosecution cases because jurors prefer physical evidence (NSWP2). The concept of “enlightenment” was also raised inadvertently by TVP1, when he stated that police would be back in the “Dark Ages” without DNA evidence. The routine use of DNA profiling by the criminal justice practitioners has allowed politicians to market the technology as a crime-fighting tool, which in turn has legitimised the beliefs of the practitioners.
Technological transfer Technological transfer is another important factor associated with the proliferation of DNA technology. Technologies are adapted to particular cultural and social situations (Lassen and Jamison 2006). An important aspect in the direction of technological 244 change is related to the ability to transfer a technology from one society to another. The culture of a society, or organisation, will affect how a technology is adopted and used. As noted earlier, where two cultures are similar there is a greater likelihood that the technology will be adopted for similar purposes and follow the same direction of technological change.
The use of forensic DNA profiling as a criminal identification tool has been “successfully” transferred from the United Kingdom to Australia. The similarities in the use of the technology demonstrate that the transfer of product-embodiment has been a success. For example, practitioners in both jurisdictions use (embody) the technique (product) in the following ways: to ‘identify’ and exclude suspects, to conduct mass screens, to elicit responses from suspects, to implicate suspects who have previously lied, and to assist in the prosecution or defence of a suspect. The types of challenges and issues raised in criminal cases were also similar across the two jurisdictions, and were influenced by wider global trends, particularly the DNA Wars in the US. Both jurisdictions experienced problems with the prosecutor’s fallacy (Keir [2002] and Doheny and Adams [1997]), declaring matches (Pantoja (1996) and Gordan [1995]), the reliability of laboratory procedures or techniques (Gallagher [2001] and Gordan [1995]), and the presentation of evidence to juries (Wakefield [2004] and Adams [1998]).
The ease of transfer can be attributed to the similarities between the legal structures and the political, social, and economic conditions in both jurisdictions. Indeed, the Australian legal system was developed from the English system and has continued to adopt its legislative practices, procedures, and jurisprudence. As NSWD1 commented, the UK is the “mother” of Australia’s democratic system, including the criminal justice system. Based on this history of deference, it is not surprising that the NSW criminal justice system could easily accommodate the introduction of DNA profiling using similar legislative instruments to the UK. The basis of the legislation across the two jurisdictions is remarkably similar, reflecting congruence in the attitudes of both governments towards DNA profiling. Both jurisdictions have legislated for the collection and retention of samples on databases. The main differences stem from the
245 type of people sampled and the need to destroy samples under different circumstances. Part of this is attributable to the economic conditions and the level of institutional support for the technology in each jurisdiction.
Resources The availability of economic and other resources is another factor that has affected the proliferation of DNA profiling. Both jurisdictions have provided substantial amounts of funds to ensure that DNA evidence is used routinely in serious crimes and, to a lesser extent, in volume crime. In 2006, the Thames Valley forensic science budget was £5.9 million (approximately A$12 million). NSW has not provided the same level of support for DNA profiling. This may be attributed to the lower crime rate between the jurisdictions (see Chapter Six). In 2007-08 NSW provided $9 million for forensic and DNA profiling. However, since 2007 NSW has increased the level of funding towards DNA profiling, signalling a shift towards ensuring the routine use of DNA evidence in criminal cases and reducing the current backlog. By increasing the numbers of SOCOs, governments have ensured that more DNA samples are collected, thus increasing the level of investigations and prosecutions that include DNA evidence in a brief. The difference in resources has allowed DNA profiling to become more widespread in the Thames Valley compared to the NSW.
Another reason for the popularity of DNA technologies is because DNA profiling is perceived as cost effective (NSWP3). The costs associated with DNA profiling have decreased in recent years as the technology has become more standardised, accessible and automated (NSWD1). Tilley and Ford (1996: 38) argued that:
Asking whether forensic science is cost-effective is not intelligible: forensic science is used in too many different ways; there is too little data on costs of alternative ways of solving crimes; forensic science normally operates not as an alternative but as a complement to other police work; there are many opportunities to improve the way forensic science related decisions are made with uncertain pay-offs and so on.
While this argument has merit, further research is required to determine the overall cost- benefit of DNA profiling in criminal investigations and prosecutions because it has created backlogs and problems for defence lawyers. In NSW, the processes of
246 investigations and prosecutions have been lengthened by DNA evidence as police and prosecutors await reports from the laboratory. This in turn has created problems for defence lawyers and suspects who are detained in custody awaiting the results.
The difference in resources and structures in each jurisdiction has tended to affect the frequency that DNA evidence is used and in what capacity it is used. For example, the Thames Valley criminal justice practitioners have access to a wider variety of DNA technologies, such as LCN and mtDNA analysis. This access means that the police can request LCN testing on a more routine basis than their NSW counterparts. As a result, the Thames Valley laboratories have the facilities to perform tests that are unavailable in the NSW Government Laboratory, and NSW police are required to send LCN and mtDNA samples to the UK or US for testing.
The belief that DNA evidence can reduce the cost of investigations by identifying suspects in a more timely manner and with more certainty (Vanstone 1998), has led to increased funding and support. The cost of profiling a DNA sample is still considerably high in both jurisdictions ($500 in NSW and £280 in the Thames Valley) suggesting that investigations become more expensive where DNA evidence is used. This finding is supported by Roman et al (2008: 5) who identified that using DNA evidence adds, on average, US$1,400 to an investigation. In the Thames Valley, suspects were identified in a timelier manner through DNA testing, although the certainty associated with the tests may be questionable given the pressure placed on these scientists to find results. In NSW, the DNA tests definitely did not speed up a case, and in many circumstances delayed a case from proceeding to court.
Knowledge and awareness A final factor that explains the proliferation of DNA profiling is the criminal justice practitioners’ level of knowledge and awareness of the capacity of the technology. All of the criminal justice practitioners interviewed in this study were aware of why DNA profiling had been adopted in the criminal justice system. Specifically, all the practitioners recognised that DNA profiling was a very useful tool to aid criminal investigations and prosecutions. This represents the level of congruence in how people
247 understand and use a technology (person-embodiment). Even defence lawyers agreed that DNA profiling should be utilised to link offenders to offences. However, the perceived value of DNA profiling differed according to the practitioners’ role within the criminal justice system. As expected, the police and prosecutors placed a higher value on DNA evidence than defence lawyers. In contrast, defence lawyers believed that the value of DNA evidence related to its ability to exclude suspects and exonerate the innocent.
People’s understanding of a technology affects their overall use of the product (Orlikowski and Gash 1994; Bijker 1995). Orlikowski and Gash’s (1994) technology in use framework is useful for understanding how criminal justice practitioners believe that the technology should be utilised. This use is affected by the practitioners’ views of the nature of technology, or, their level of understanding of a technology. As already noted, practitioners in this study demonstrated an understanding of the practical forensic uses of the technology, but, apart from the biologists, they had little detailed knowledge of the scientific processes or limitations associated with what the technology could achieve, thus limiting their view of the nature of the technology (see Chapter Eight). This level of understanding enabled practitioners to collect samples and to present evidence at trial, but in some instances a more in-depth knowledge of the scientific basis of DNA profiling would have assisted an investigation or provided a more realistic expectation of what DNA evidence could achieve. For example, NSWGS3 and NSWGS4 complained of CSI type requests from police officers that could have been avoided by a wider knowledge of the use of DNA profiling and its limitations. Similarly, there are cases where a deeper understanding of the technology could offer new avenues for investigations, such as LCN and mtDNA testing. These are some examples of how practitioners’ technological frames have constrained the use of DNA evidence.
Impact on the criminal justice system
A number of theorists, such as Brey (1997), Bijker (1995), Collins and Pinch (1998), and Wise (1998) have studied how technologies have changed social structures. Like most technological artefacts, DNA profiling has created a number of intended and
248 unintended impacts on criminal justice in NSW and the Thames Valley. Four major consequences of DNA profiling will be discussed: the routine expectation that DNA evidence will be present, the impact on practitioners, the displacement of other evidence types, and the professionalisation and commercialisation of justice.
Expectation to have DNA evidence DNA profiling has had a significant impact on traditional forensic identification practices and on the work of criminal justice practitioners around the world (Broeders 2007: 326; Gigerenzer 2002). The increased publicity surrounding DNA evidence and the increase in dramatised television programmes has created the CSI Effect, which has in turn affected the criminal justice system’s use of DNA evidence. This belief that jurors want DNA evidence has resulted in criminal justice practitioners changing their practices, to include it as evidence or to explain its absence. This reaction has legitimised the CSI Effect, with lawyers intentionally drawing the focus of jurors to the presence or absence of DNA evidence. As several of the prosecutors in this study mentioned, they will often introduce DNA evidence that is irrelevant because they believe that juries will not convict without it. These expectations have led prosecutors, and defence, to request more DNA samples, thus ensuring its continued routine use in the criminal justice system.
The expectation that DNA evidence would assist in the investigation of crimes has resulted in criminal justice practitioners using the technology more frequently than originally envisaged, which has resulted in significant backlogs in NSW. The NSW laboratory has backlogs as long as six to twelve months. Recently, the NSW Ombudsman (2006: 182) reported:
It is clear that DNA analysis is not reaching its potential in New South Wales … [the laboratory] is unable to meet the demand for DNA analysis, and many crime scene samples remain unexamined. This seriously limits the efficiency of DNA analysis both in prosecuting offenders and as an intelligence tool.
The creation of backlogs has constrained the number of samples that SOCOs can collect and submit in NSW, which in turn limits the use of DNA profiling in criminal investigations. Backlogs in the Thames Valley are now a thing of the past because 249 policies that control the behaviour of SOCOs, such as collecting only one sample in volume crime cases, have minimised the likelihood of backlogs.
Impacts on practitioners Criminal justice practitioners see DNA profiling through technological frames (Orlikowski and Gash 1994), which affect how they actually use the technology. As the court appeals discussed in this thesis indicated, there have been a number of challenges to the use of DNA evidence and what matches actually mean (see Wakefield [2004] where the judicial officer believed the statistics were large enough to declare a match rather than a probability of a match). These challenges have shaped the way that practitioners understand and use DNA profiling. As the courts accept certain techniques or standards (such as Profiler Plus in Gallagher [2001]), the practitioners are required to update their knowledge to reflect these changes. Several of the more recent appeals indicate that this fluidity of meaning is still evolving (Hoey [2007] and McNeill [2007]), although to a lesser extent than during the DNA Wars. There are still challenges to the use of DNA evidence in criminal trials. Although, these challenges are becoming less frequent and are raising a more refined range of issues, they continue to affect how practitioners use the technology.
Technological frames are partly formed by a practitioner’s level of knowledge about the technology. In this study, the criminal justice practitioners demonstrated that they acquired their knowledge through training, on-the-job experience, organisational policies, and gathering additional resources from the internet, expert witnesses, and colleagues (see Chapter Eight). The preference of police to learn about DNA through on-the-job experience raises questions about the usefulness of current training sessions and how police procedures are updated. Similar to Simon’s (1955) process of satisficing and Leckie et al’s (1996) analysis, all of the participants in this study extended their knowledge through reading books, articles, and talking to other practitioners. The establishment of in-house training seminars and conferences by criminal lawyers indicated that the lawyers recognised the need to have a high level of understanding of DNA evidence. In general, judicial officers were satisfied with a low level of understanding about the technology because of the requirement for the evidence to be
250 explained in detail at court, especially in jury trials. Each individual made choices about the level of information they desired or could accommodate. A few wanted to learn more about the technology because they had a personal interest, while others believed they would learn the necessary information during a specific case. Because of this idiosyncratic and pragmatic approach, some individuals had a higher level of understanding about DNA profiling than others.
In order for DNA profiling to become widely used in the criminal justice system, it required a level of closure so that a variety of criminal justice organisations could use DNA evidence in a standardised manner. The interviews demonstrated that a number of aspects of DNA profiling are now black-boxed;125 all the practitioners recognised that DNA evidence could be a useful tool in the identification of offenders, that it tended to be scientifically reliable, and was presumptively admissible. According to Risinger (2000: 128):
The days of substantial reliability controversy over courtroom applications of DNA science appear to be just about over, and the occasional interim victories achieved by defendants as both the science and law developed are unlikely to be repeated in the future.
This appears to be the case in NSW and the Thames Valley, where concerns raised by the practitioners related to issues of contamination, incorrect procedures, population statistics and over-interpretation; rather than challenges to the fundamental basis of the technology.
The process of black-boxing DNA profiling has meant that it is easier for individuals to rely upon DNA evidence in court. Once issues become black-boxed it is very difficult to challenge those aspects of the technology because people accept these as facts, or as uncontroversial. DNA profiling has been black-boxed to the extent that only one of the seven judicial officers recognised that they had a role to play in determining the admissibility of DNA evidence. NSWJO7 recognised that he was required to determine
125 That is, the technical processes associated with creating a DNA profile are hidden and criminal justice practitioners are able to use the evidence in a standardised manner. 251 if there were objections to the evidence and whether the objections should be heard. Every other judicial officer believed that DNA evidence should be routinely introduced into the courts, and if there was a concern, it could be raised in cross-examination. NSWJO2 stated, “it seems now to be pretty much accepted, it’s been through the challenges”, suggesting that the challenges were no longer a concern.
As Edmond and Mercer (2004) commented, the courts have played an important role in legitimising different types of expertise and thus black-boxing evidence such as DNA profiling. Specifically, the need for expert witnesses to present DNA evidence, the nature of cross-examinations, and the ability for judicial officers to accept or reject evidence, have all contributed to the legitimation of DNA evidence.
Black-boxing requires a level of consensus within the scientific community. During the DNA Wars, the courts experienced a number of problems admitting and accepting DNA evidence because of the conflict between scientific experts. The conflict reduced the level of legitimacy associated with DNA evidence and raised questions about its overall reliability. The arguments of the DNA Wars have been largely resolved because of the emerging consensus within the relevant scientific community. The lack of expert witnesses available to NSW defence lawyers has meant that it is unlikely that problems with DNA evidence will be raised in NSW courts. Without an expert witness advising the defence and challenging the Crown expert witness, issues may go unaddressed.
Defence lawyers recognised and participated in the process of black-boxing DNA profiling by trying to “deal with it” as “overwhelming evidence”, or by trying to “bury it”. As a result, most of the lawyers did not challenge the scientific or technical basis of DNA evidence and either tried to ignore it, or introduce doubts concerning human error. Lawyers with a limited understanding of DNA profiling may not identify problems with a sample or match, while those with a greater understanding of the technological processes involved in creating a DNA profile may be more aware of how the sample can become contaminated. Some of the NSW scientists were frustrated by lawyers’ lack of knowledge because it meant DNA evidence was not challenged or lawyers asked the wrong questions. The limited knowledge of some defence lawyers has been widely
252 recognised. Edwards’ (2005) article, ‘Ten things about DNA contamination that lawyers should know’, outlined the specific areas that lawyers should examine when they receive the Crown laboratory report, or an independent report. The need for articles such as Edwards’ (2005), illustrated that lawyers are not aware of the fallibility of DNA evidence. This is one of the reasons for the limited level of challenges to DNA evidence in court.
Through the routine use and acceptance of DNA evidence, judicial officers have assisted in closing the debate about the validity of DNA profiling. Risinger (2000: 127) suggested that one of the reasons why judicial officers accepted DNA profiling so readily was because “at the end of the day the science was good enough that it generally got admitted”. The appeal cases in this study supported Risinger’s (2000) suggestion. In the cases where DNA evidence was inadmissible the judicial officer maintained the reliability of DNA profiling whilst criticising the circumstances of the case. DNA evidence is rarely challenged in either the Thames Valley or NSW courts. As a result, there is a higher degree of congruence in the technological frames among criminal justice practitioners in both jurisdictions.
Displacement of evidence types The proliferation of DNA profiling has displaced some other types of evidence and technologies. With the increased emphasis on finding DNA evidence at crime scenes, other evidence is being discounted and treated as less important. TVFS3 in particular was concerned that DNA evidence was overriding other evidence types such as fibres, and glass analysis. While most of the criminal justice practitioners still preferred fingerprint identification, some of them believed that DNA evidence was more reliable and effective than fingerprinting (NSWJO6; NSWD5; TVP1). This demonstrates the extent to which DNA evidence is displacing other types of evidence. Lynch (2004: 127- 128) argued that forensic DNA was a “parasite” on the “host” fingerprinting, and that:
Where forensic DNA had once borrowed the name ‘fingerprinting’ from the older technique, with its associations of credibility, certainty, and singularity of identification, the former ‘host’ (the established precedent and source of borrowed credibility) began to be reviewed, critically, in light of its successful parasite.
253 The gold standard of DNA evidence has displaced fingerprinting techniques, to the extent that fingerprints are challenged more routinely in court and DNA is considered a preferred type of evidence in court.
Professionalising and commericialising DNA profiling NSW and the Thames Valley have organised forensic service providers differently. According to the Queensland Crime and Misconduct Commission (CMC) (2002) there are four different methods for the delivery of forensic science services. These models are: health-governed, police-governed, mixed (where multiple agencies are involved), and board-governed (an independent body). NSW has a mixed model where both the police and health departments operate the provision of DNA evidence. In contrast, the Thames Valley provision of forensic services is based on a more board-governed approach. According to the CMC (2002), board-governed models have a perceived independence from the police and government.
The use of DNA profiling in the Thames Valley is governed by business management concerns. The UK Criminal Justice System moved towards managerial accountability in the late 1980s and began to focus on performance indicators against which organisational activities could be measured (Garland 2001: 116). This move was cemented in the forensic science sector by the 1987 Touche Ross Report, titled Review of Scientific Support for the Police, which emphasised the need for UK criminal justice agencies to adopt an economic style of reasoning. The effect of this trend and the Touche Ross Report was that the provision of forensic sciences became governed by market mechanisms and business management solutions (Williams and Johnson 2008: 101-104). Consequently, in 1991 the police became responsible for selecting and employing forensic services. This meant that individual police forces were required to negotiate the cost and turn-around time of samples with the laboratory, thus allowing police to participate in market mechanisms. Similar trends are emerging in NSW, where samples are now being outsourced. This provides police with more options and opens the potential for a market-based model.
254 The establishment of private scientific laboratories in the Thames Valley signified a general policy shift towards re-structuring DNA profiling as a business. Both the NSW and Thames Valley criminal justice systems work on a fee-based service system. However, the main NSW DNA provider is a government department.126 In the Thames Valley, providers are independent. In theory, private laboratories create competition and efficiency. The provision of competitive DNA testing facilities has resulted in the reduction of backlogs in the Thames Valley and faster turn-around time for samples.
Daemmrich (1998) argued that the private laboratories are also sensitive to their client’s interests, especially for expert evidence. Although this was not examined in detail in this study, the pressure on scientists to find DNA matches suggests that the provision of forensic services has become unfairly influenced by police needs, rather than the need to produce reliable and objective evidence. Some of the Thames Valley police officers admitted to placing pressure on scientists to obtain a particular result, and would continually re-send a sample to the laboratory in the hope of obtaining that result. The police officers reasoned that because the scientists were not directly involved in the case, they did not understand the importance of obtaining a match. Rather, the officers believed that scientists treated all samples in a standardised matter and did not go to additional measures to profile particular samples. These police officers resolved that if the scientist was emotionally involved in the case that they would try harder to find a match. As the Thames Valley laboratories are all privately owned (and the main clients are the police) there is a need for the laboratory to remain competitive, which may place pressure on scientists to accede to police demands. Consequently, the move towards privatisation in the Thames Valley has changed the dynamic of using forensic evidence and DNA profiling.
In NSW, a number of defence lawyers had concerns about the independence and professionalism of the Government Laboratory. The defence lawyers believed that the Government Laboratory was pressed by police to produce specific results even though a government department controlled it. NSWD4 went as far as to suggest that the NSW
126 This may change in future, especially with the new contract with the private laboratory Genetic Technologies Corporation and the creation of a new police laboratory. 255 laboratory had a “cultural agenda” to support the prosecution. This is a matter of concern given the findings of the Morling Royal Commission Report (1987: 318), which stated that “it is essential that the forensic scientist be free from pressure to produce results” to avoid miscarriages of justice. The continued pressure on scientists suggests that the issues addressed by the Morling Report in response to the conviction of Lindy Chamberlain have not been resolved in NSW.
For the defence lawyers, privatisation would be preferable for two main reasons. The first relates to the current inability of defence lawyers to access DNA testing facilities. Second, defence lawyers believed that the Government Laboratory needed to be more independent from the police and prosecution.127 TVP1 suggested that privatisation has not made the process more independent, with police as primary consumers still pressuring scientists to find specific results. According to the scientists in this study, their role in the court is to provide objective and neutral evidence, rather than provide evidence to support or contradict the prosecution’s case. One solution to this problem is pre-trial conferencing, where the Crown and defence expert meet to determine which evidence can be presented to the jury, thus eliminating the adversarial nature of expert witnesses. However, this practice is limited if the defence cannot secure an independent expert because of insufficient resources.
In addition to the focus on market mechanisms, both the Thames Valley and NSW police are strongly committed to performance reviews and a business ethos. The most prominent example relates to the performance reviews of scene of crime officers. The process of assessing a SOCOs submission rate has encouraged officers to focus on collecting DNA evidence, to the detriment of other evidence types. This is one example of how DNA, as a technology, has imposed behaviours back onto criminal justice practitioners (Wise 1998; Latour 1988). As Garland (2001: 116) noted, this “practice affected not just the management of organizations, but their overall mission”. Market forces have also created new hierarchies within the SOCO unit, with the creation of a
127 Unfortunately, defence lawyers from the Thames Valley were not interviewed. In consequence, it is difficult to determine whether privatisation produces services that are, or perceived as, more independent and reliable. 256 senior officer role that is responsible for deciding which samples will be submitted to the laboratory. Investment in DNA profiling has been shaped by the desire to maintain effectiveness, which has been achieved by adopting a “public sector audit culture” (Williams and Johnson 2008: 101).
Offence types
One of the more striking consequences identified in this dissertation, concerns the use of the technology across offence types. While Briody and Prenzler (2005) discussed the role of DNA evidence in three separate offence types, there has been little research on the use of DNA evidence in all offence types. This dissertation has highlighted apparent contradictions between reserving DNA testing for serious crimes and the benefits of using it more widely in volume crimes. For example, the criminal justice practitioners agreed that the majority of resources for DNA profiling were reserved for serious crimes, such as homicide and sexual assault. In addition, the police and SOCO manuals and procedures in both jurisdictions emphasised the budgetary considerations according to the type of crime. Both jurisdictions spend more money on serious crimes than volume crimes.
This dissertation proposes that these practices may require re-consideration. Although the statistics indicate that DNA evidence is being used more frequently in major crime cases, there was evidence that DNA testing was becoming less relevant in a number of categories of crime. Practitioners acknowledged that in most serious crime cases the issue is not usually one of identity, but rather consent or extenuating circumstances, which limits the value of DNA evidence. In addition, Green (2007: 345) found that volume crime scenes yielded the highest recovery rate of biological material despite the priority placed on the attendance of scene of crime officers at serious crime scenes. Specifically Green (2007: 345) noted that:
Paradoxically, the most productive scene in terms of investigative contribution appears to be theft from a motor vehicle, followed by burglary (other), burglary (dwelling) and, finally, recovered stolen motor vehicle. While these are not the crime scenes that receive the highest attendance rates, they are the scenes at which examiners are most likely to collect material that can be converted into detections.
257 Green’s (2007) results are contrary to the findings of Briody and Prenzler (2005) and Blakey (2000). These other investigations found that the utility of DNA tests in volume crime cases was limited by the availability of biological samples. However, this may be because SOCOs are limited to collecting one sample. With the collection of more samples, there may be more matches.
As a result of Green’s (2007) findings, it may be more beneficial to provide additional resources to the use of DNA evidence in volume crime cases, where it will achieve more productive results because, in these types of cases, identity is the main issue. However, resources would need to allow for an increased collection, analysis and storage of samples. Roman et al (2008: 6) found similar evidence:
In summary, our research suggests that large numbers of offenders not currently identified by traditional investigations could be identified via DNA. A gap arises because the capacity of police and labs to identify and collect DNA is limited, crime laboratories are severely constrained in their ability to process biological evidence in volume, and prosecutors have not prepared for the impact of large numbers of cases where DNA evidence is the primary source of offender information.
At present, the use of DNA profiling in volume crime cases is constrained by insufficient resources, and it is unlikely that this will change in the near future, especially in NSW.
Legal and historic contexts
The proliferation of DNA profiling has been aided by law and order rhetoric. The institutional support from the governments and the police in both jurisdictions has guaranteed continued funding and the introduction of extensive legislature regimes. Johnson et al (2003: 24) argued that one of the reasons that UK officials have used DNA profiling in the “war against crime”, is because the public perceives DNA evidence as objective, reliable, and efficient. The constant media attention on cases where DNA evidence has solved a case (a Sydney Morning Herald (2008) headline stated ‘DNA links accused to prostitute murders’), or cases where DNA evidence has led to the exoneration of innocent individuals (a New York Times (1995) headline
258 stated ‘DNA tests clear man of rape nearly eight years after conviction’) has ensured that the technology has a secure place in criminal justice systems around the world.
Both NSW and the Thames Valley have provided legislation to ensure that organisations such as the police, legal institutions, and even prisons adopt the technology. Vergragt et al (1992) identified the importance of having legislative support for a technology. The Acts in both jurisdictions outline the forensic procedures available to the police to take DNA samples and regulate which prisoners and suspects are required to provide samples. The legislation controls how the criminal justice practitioners can use DNA evidence. Both the Thames Valley and NSW police have introduced policies and structures to ensure compliance with the legislation and assistance for police officers involved in conducting forensic procedures. This has ensured that the police organisations have had the necessary structures in place to use DNA evidence more effectively.
As previously mentioned, the legislative basis for the use of DNA profiling in NSW and the UK is similar. However, the differences have changed the manner in which criminal justice practitioners in each jurisdiction use DNA profiling. For example, the more extensive police powers in the Thames Valley allow police officers to collect samples from a wider range of suspects, which increases the size of the database and may allow more crimes to be processed through cold hits. The United Kingdom has the most comprehensive and authoritative legislation to date. As a result, several NSW politicians and stakeholders have made public statements to the effect that NSW should follow the UK legislation (see Chapter One). In this study, one of the police officers suggested that DNA evidence is collected at volume crime scenes in NSW because of the successes in the UK.
The UK was the first jurisdiction to legislate for the use of DNA profiling in criminal cases and the first jurisdiction to create a national DNA database. The UK legislation continues to expand police powers and the range of the NDNAD, while NSW legislation remains more constrained. One reason for this is the differing levels of public support. As Jasanoff (2002) and Gerlach (2004) noted, it is important for
259 politicians to ensure that they have public support for a technology in order for it to be used routinely.128 The UK was able to gain rapid support from the public because of the climate surrounding the Birmingham Six and Guildford Four appeals and the fear of unsolved crimes. DNA profiling was presented as a tool to identify offenders and exclude innocent people from trials. As a result, both the Commission into the Birmingham Six and the subsequent Select Committee on Science and Technology recommended the adoption of DNA profiling. Since the mid 1990s, the UK has experienced strong public support for the legislative amendments expanding the NDNAD (Johnson et al 2003: 35). However, recent public concern over the proposal to take DNA samples from people accused of minor offences, such as speeding and littering, has forced the Home Office to backtrack on these proposals to avoid undermining public support for the technology (Doward and McKie 2008).
Although a number of initiatives from the UK have been successfully transferred to NSW, the legislation governing DNA profiling in NSW differs from the UK legislation. As suggested in Chapter Five, there have been a number of reviews in NSW of the legislation and several unofficial challenges to new bills. In particular, the Greens Lee Rhiannon and the NSW Bar Association have publicly criticised existing legislation and the process involved in enacting the Crimes (Forensic Procedures) Amendment Act 2006. The enactment of new legislation requires the support of the law enforcement agencies responsible for using the Act. It is important to recognise, however, that the legislation would be ineffective without the technological advancements in DNA profiling. Although PCR was not developed in a forensic context (Rabinow 1996), its adoption by forensic service providers has meant that biological material could be collected from volume crime cases, which in turn required additional legislation to include a wider range of offenders on the database.
In addition, the courts have played a significant role in determining how DNA evidence is used and how the legislation has developed. In both jurisdictions, the courts have
128 There have been cases where governments have adopted technologies without public support, a number of which were unsafe technologies (Collins and Pinch 1998).
260 supported the legislation and routine use of the technology. In the UK there was only one case, Marper [2004], where the validity of the legislation governing DNA collection and storage methods were challenged. In that case, the English judicial officers made it clear that the potential value of DNA evidence outweighed the privacy concerns of individuals, thus providing support for the legislation.
Unintended consequences
Technologies are not developed in “morally neutral spaces” (Jasanoff 2002: 258). The manner in which a technological artefact is conceived and used will shape its outcomes. As Jasanoff (2002: 258) argued, technologies can reinforce existing hierarchies, such as the over-representation of Indigenous people in the criminal justice system (Gardiner 2002). In addition, science and technology can have “enormous political ramifications” where civil liberties become replaced by the need to fight crime:
Advocates of DNA technology … have presented the technology as value-free, politically neutral, and above all, reliable … the neutrality of DNA science has enormous political ramifications. If the new science can establish the guilt (or innocence) of a suspect with virtual certainty, then any objections based on civil liberties and traditional ‘rights’ of suspects become difficult to sustain (Corns 1992: 13).
A number of civil rights have been affected by the introduction of DNA profiling. First, delays in trial because of lengthy DNA testing can constitute an absence of due process (Corns 1992: 13). Second, the collection of samples waivers the right to silence and the right not to incriminate oneself. This is especially the case where samples are taken by force. Third, the collection of samples by force raises concerns about bodily integrity, physical abuse and the right to genetic privacy.
The presumption of innocence has also been affected by the introduction of DNA evidence. NSWD1 believed that in the future DNA evidence would become the equivalent of guilt in criminal cases, and would undermine the presumption of innocence. However, DNA profiling has already undermined the presumption of innocence in three main ways. The first is in relation to Gans’ (2001b) DNA request surveillance. As in the case of the Bulldogs player who refused to provide a DNA 261 sample, the police and the community judged him as someone who had something to hide. His presumption of innocence was immediately displaced upon his refusal to submit a DNA sample. Similarly, in the Wee Waa mass testing, lawyer David Sweeney believed that the mass screen violated the:
… traditional legal presumption of innocent until proven guilty. It’s an indefensible manipulation by the police of the sympathy we all have for the victim to try and push for DNA testing at the widest possible level” (cited in Moldofsky 2000).
Second, jury members can take DNA evidence as proof of guilt despite an alternative explanation for the presence of the DNA at a crime scene. Finally, the presumption of innocence might be challenged by the use of DNA databases. NSWDPP1 was concerned that a DNA match would be taken as automatic guilt in the near future.
The resources allocated to DNA profiling have unintentionally reinforced the existing asymmetry of resources in criminal prosecutions. Generally, the prosecution has greater resources available than the defence, which shifts the balance of power towards the prosecution. According to Holmes (1994: 234) while DNA laboratories and the police benefit from DNA profiling, defendants will be doubly disadvantaged because of the cost of DNA profiling. NSW defence lawyers complained about insufficient resources to conduct independent DNA tests. Unless the case is high profile, or the defendant has the money to pay for independent tests, the defence are reliant upon those conducted by the prosecution. Issues of funding for defence lawyers are not limited to DNA profiling; defence lawyers receive fewer resources than prosecutors, especially Crown prosecutors. Risinger (2000: 99) argued that:
…criminal defendants virtually always lose their reliability challenges to government proffers … when criminal defendants’ proffers are challenged by the prosecution, the criminal defendants usually lose …
Although Risinger (2000) was referring to a wide range of expert testimony, there is evidence to suggest that this is also occurring in NSW and the Thames Valley. DNA profiling is just the latest technology to reinforce existing hierarchies between prosecutors and defence lawyers.
262
In this study, some of the criminal justice practitioners alleged that abuses in police power could lead to the misuse of DNA profiling in criminal investigations (such as the case with the “planted” Coke can, as described in Chapter Nine). According to some of the defence lawyers, the police now have new opportunities to plant evidence at a crime scene. However, the potential for police corruption and planting evidence existed prior to DNA evidence. DNA profiling was intended to guard against corruption by offering corroborative evidence. In this way, the police used the technology to legitimise their behaviour (Ericson and Shearing 1986: 133).
Theoretical implications
There are a number of theoretical implications for understanding technological change in the criminal justice system. Specifically, the use of DNA profiling in the NSW and the Thames Valley criminal justice systems suggests that there is scope for refining current theoretical frameworks. First, the notion of strong or weak technologies may help to understand why some technologies proliferate despite the problems associated with them, even when it is detrimental to other forms of technologies.129 Second, the level of congruence between the criminal justice practitioners suggests that theories of technological frames require elaboration.
As already noted, technologies can have a range of effects on organisations (Chan 2003: 670). The design of the technology and the way that it is used will alter the level and range of impacts it will have. In a similar fashion, strong technologies will have a different impact on organisations than weak technologies. The concept of a strong technology does not automatically mean that it is intrinsically the most efficient and effective design. The QWERTY keyboard, for example, can be considered a strong technology because it has dominated keyboard designs in spite of the fact that it does not have the most appropriate or efficient design. Instead, strong technologies are ones that can be easily transferred across cultures, have institutional and political support, are scientifically valid and reliable, and are accepted by the users of technologies. In
129 I would like to acknowledge that the origin of this framework was suggested by Janet Chan. 263 contrast, weak technologies tend to be less acceptable, and lack the economic, political and institutional support.
Over the course of time, weak technologies can become strong technologies and strong technologies can become weak. For example, fingerprinting was established as a weak technology that lacked institutional and financial support. With the decline of Bertillonage - as a strong technology - there was an opportunity for fingerprinting to gain strength and acceptance.
In a similar way, DNA profiling can be considered a strong technology that has assumed a dominant role in the criminal justice system. When forensic DNA profiling was first introduced, it helped to identify offenders from biological samples with increased certainty (as in Pitchfork). Since that time it has received the political support required to incorporate it into legal settings and to ensure that it has become integrated into the cultural frames of criminal justice practitioners. Consequently, the impact on the criminal justice system has been considerable. DNA profiling has started to push out other weaker technologies, such as blood groupings, and more recently, fingerprint identification. Its ability to proliferate despite the problems associated with genetic privacy, laboratory backlogs, and its irrelevance in some offence types, has confirmed it as a strong technology.
One of the reasons why strong technologies proliferate, despite their limitations, is the cultural and social influences on the technology. Organisations, such as the police and prosecutors, view DNA profiling as a strong technology because it offers information for both evidentiary and intelligence purposes. Chan (2003) found that police were more accepting of technologies that have visible results, such as increases of on-the- spot fines through mobile data systems. DNA profiling provides similar instantaneous results with the use of databases. Once a sample is uploaded onto the database, there is a chance that the police will have an immediate suspect (or not so immediate depending on the time frame for analysing the crime scene sample). The ability of DNA evidence to create tangible opportunities for convictions has ensured that practitioners, such as the police and prosecutors, will use it routinely for future convictions.
264
There are also practical reasons why some technologies are considered stronger, or more useful, than others. DNA samples can be collected from a wide range of biological sources and can be found at a wide range of crime scenes. As demonstrated in Chapter Seven, DNA evidence is being used in fraud, drug, and driving offences. The versatility of DNA evidence and the relative ease in collecting and analysing it has made it a desirable, and thus a strong tool for police officers. Challenges to DNA evidence have strengthened it as a technology because it is now viewed as reliable.
The perception that DNA evidence is a powerful technology is evident in the level of congruence between criminal justice practitioners’ technological frames. All of the criminal justice practitioners viewed DNA profiling as a useful tool to inculpate or exculpate individuals. This is especially surprising in the case of defence lawyers, where it was expected that they would be more critical of the technique. Instead, the lawyers were critical of the individuals employed to use the technology, reflecting the level of black-boxing that has occurred. Another factor is the creation of the CSI Effect phenomena where more importance has been placed on DNA profiling because juries now expect it in trials, thus creating the need for a strong technology that can be routinely invoked. This study found that television programmes such as CSI were sometimes used as a source of knowledge by the criminal justice practitioners. For example, some NSW police and prosecutors requested tests that they had seen on CSI. The existence of the CSI Effect suggests the need to extend the concept of technological frames to include the relationship between technological artefacts and other cultural influences, such as the media and the entertainment industry.
The consequences of using forensic DNA profiling
The adoption and continued use of forensic DNA profiling has been a result of a number of technical, legislative, organisational, and social changes. According to Johnson et al (2003: 28):
A series of scientific, technical and industrial changes in the late 1980s enabled DNA profiling to be undertaken at high speed and volume … The recent history of forensic DNA technology can therefore be told as a story dependent on the parallel development
265 of a number of scientific, technical and commercial innovations … Yet, despite these significant advances in DNA profiling technology, the potential for their investigative exploitation would not have been possible without the enabling legislative framework ...
Both NSW and the Thames Valley have provided substantial legislative and organisational support for the introduction of this identification technology because it has been viewed as a gold standard for forensics.
There have been few formal challenges to the expansion of police powers to use DNA evidence because it has been marketed as a tool that can solve many of the problems associated with miscarriages of justice. As a result, there has been minimal public attention provided to the miscarriages of justice created by DNA evidence. Where there has been public attention, the mistake is portrayed as an anomaly and limited to the individuals involved in the case. While the science of DNA analysis is reliable - and it should be used in the investigation and prosecution of crimes - the limitations of the technology should be widely known so that jurors and criminal justice practitioners do not believe that it is infallible. The following chapter concludes this thesis and discusses a number of implications for the continued use of DNA evidence in criminal justice systems.
266 CHAPTER ELEVEN: CONCLUSION
DNA profiling is one of the latest scientific technologies to be implemented by criminal justice systems. It has been hailed as a revolutionary tool for police and courts, and is considered to be the gold standard for identification techniques. DNA profiling has become an integral part of investigative and prosecutorial processes ever since its introduction into the criminal justice system in the late 1980s. The use of DNA evidence in high profile media cases, such as OJ Simpson in the US, the recent European case of the missing toddler Madeleine McCann, and the Australian case of the murder of the British backpacker Peter Falconio by Bradley Murdoch, have attracted considerable media attention that has ensured continuing public interest in the technology. As a result, governments have been able to adopt the technology with minimal resistance from the public or civil libertarian groups, and to steadily increase the role of the technology in the process of criminal investigations.
The adoption and development of forensic DNA testing in NSW and the Thames Valley has not followed a linear path. Rather, the use of DNA profiling has changed according to a combination of technological, scientific, organisational, and social domains that were not predicted by either the inventors or the users of the technology. According to Williams and Johnson (2008: 164), there have been at least four key changes that “have provided the basis for the ascendancy of DNA”. Although Williams and Johnson (2008) were referring to the UK, similar changes have occurred in NSW. First, the redefinition of a buccal scrape as a non-intimate sample has meant that police have a simple and inexpensive collection technique. The second change relates to the continual expansion of the National DNA Database, which has allowed police to survey a large proportion of the population. Third, the legislation allowing police to indefinitely retain DNA samples has created an extensive database that can be used to solve more crimes. Fourth, the substantial provision of funds for the use of DNA has played a significant role in the provision of forensic services.
267 This dissertation has shown that there have been additional key changes that have allowed the widespread use of forensic DNA profiling. Technological advancements have been one of the most important changes in enabling the use of DNA profiling to proliferate. As Williams and Johnson (2008: 165) noted, technological advancements have allowed the process to become more expedient and less expensive, especially with automation. In addition, the technological advances have provided scientists with the ability to obtain profiles from minute samples, thus extending the use of DNA profiling into offences such as fraud. There can be no doubt that the NSW or UK databases would include considerably fewer people if the technology were restricted to RFLP samples (and therefore serious crime).
The research reported in this dissertation indicates that DNA profiling has had a number of significant impacts on the criminal justice system. The existing literature provides several examples and case studies where DNA profiling has changed the process of the criminal justice system. However, as highlighted by the introductory chapter, the research in this area is incomplete. This dissertation has added to the existing research, and in particular, it has provided a comparative context that was previously missing from the literature.
The introduction of DNA profiling has changed a number of processes within the criminal justice system. Gerlach (2004: 91) proposed that the process of justice has shifted away from a relationship between the individual and the state, to a form of “genetic justice” where scientific domains are more important in determining justice. In the case of DNA evidence, Nelkin and Andrews (1999: 695) point out that people have been willing to suspend certain civil rights to achieve more efficient criminal investigations:
... there has been remarkably little protest against them [DNA databases]. Indeed, they have been welcomed as an effective means to lower the cost of criminal investigations ... few believe that the collection of DNA samples will affect their personal interests. And the aura of science underlying DNA technologies contributes to the legitimacy of testing and overrides privacy concerns.
268
This shift is attributable to a combination of: perceived scientific validity and reliability; the potential for scientific tools to aid investigations and prosecutions; the increasing legislative basis for forensic science; and the “readiness of its judicial acceptability” (Williams and Johnson 2008: 59). The underlying justification for the use of scientific technologies, including DNA profiling, is the need to be “tough on crime” and to provide legitimacy to the actions of law enforcement agencies.
Genetic justice was apparent in both the NSW and the Thames Valley criminal justice systems. DNA profiling was established as a key forensic tool in NSW and Thames Valley through the following four processes. First, according to some of the practitioners, it has usurped the reputation of reliability and validity from fingerprint identification. Second, DNA had numerous initial successes in police investigations. Third, there was substantial legislative support. Finally, there has been a judicial readiness to accept DNA as reliable evidence. The legislative basis and the judicial support of this legislation have ensured that scientific domains have taken priority over personal liberties, as shown by the case of Marper [2004]. The importance attached to scientific evidence by police was evident in the performance reviews of SOCOs and the belief by many of the officers that DNA evidence, and other forensic evidence, was superior to other types of evidence such as eyewitness testimony.
This study is significant because it examined the views and experiences of a variety of criminal justice practitioners involved in the investigation and prosecution of crime. The practitioners in this study provided distinctive views on the use of forensic DNA profiling within the criminal justice system and how it has altered their role within the system. In this study, it was shown that the police have changed their process of interviewing suspects and adopted new investigative tools, such as mass screening. For SOCOs, the introduction of DNA profiling has meant there is now pressure to find DNA evidence at all crime scenes. For criminal lawyers, although their fundamental role in a trial remains unchanged, they have been affected by the CSI Effect. All the criminal lawyers in this study reported changing their tactics when addressing the jury to either utilise or dispel the mystique associated with DNA evidence. The judicial
269 officers were affected least of all by the introduction of DNA profiling. The court cases highlighted that the judicial officers had a role in admitting evidence and correctly summarising the evidence for the jury. This study found that the practitioners are routinely using the technology throughout the various stages of the criminal justice process.
The success of DNA profiling in criminal cases depends on the capacity of various organisations to collect, analyse and store DNA samples. This capacity has significantly limited the use of DNA profiling in NSW and to a lesser extent in the Thames Valley. Both jurisdictions have been required to expand staffing in laboratories and employ more scene of crime officers to cope with the increased demand for the collection and analysis of DNA evidence. In NSW, the demand for more efficient testing has become so extensive that the police have begun to outsource volume crime samples to an independent laboratory. Limitations on storage capacity and the resources required to test samples have led both jurisdictions to limit the number and types of crime scene samples that can be collected.
One of the more significant impacts of these restrictions has been the limited use of DNA evidence in volume crime cases. This dissertation and other studies have suggested that it would be more beneficial to provide additional resources to volume crime cases (rather than reserving the majority of funds for serious crime). One reason for this is because it is one of the few tools that can be used to link an offender to a volume crime scene. In addition, the practitioners in this study believed that the use of DNA evidence in the majority of sexual assault and murder cases was superfluous because the identity of a suspect was already known. As such, it would be more beneficial to allocate resources to cases where DNA evidence is likely to contribute to intelligence; these are more likely to be volume crime cases.
One of the lesser-acknowledged impacts of the use of forensic DNA profiling has been the receding importance placed on other types of evidence. Crime scene investigations are becoming increasingly focused on DNA evidence as SOCOs feel increasingly obliged by police and the terms of their performance indicators to find DNA samples.
270 This has substantial repercussions. As one of the Thames Valley scientists indicated, the increased focus on DNA evidence has resulted in less funding for other types of evidence, which means that these other disciplines are disappearing. Some of the criminal justice practitioners believed that fewer resources meant that the evidence types, such as glass analysis and fibres, will attract fewer experts and will not be developed in the future. This has the potential to limit the effectiveness of police enquiries. The focus on finding DNA evidence may also exclude the collection of other evidence types from crime scenes. This is problematic because DNA samples can become contaminated or produce inconclusive results, thus leaving investigations with limited intelligence. SOCOs need to maintain their autonomy in order to collect all types of evidence with the potential to assist an investigation.
Despite these developments, there was little empirical evidence to suggest that DNA evidence has had a significant impact upon crime detection. For example, in the Thames Valley, there were a greater number of cases where DNA was available but irrelevant to an investigation (2,281), than cases where DNA was available and provided intelligence (486). Gareth Crossman, a spokesperson for the UK National Council for Civil Liberties (cited in Home Office 2007b), and McCartney (2005) have suggested that the usefulness of DNA databases has been overstated. According to McCartney (2005: 175), “DNA evidence remains marginal in terms of assisting with overall criminal detections”. These findings suggest that the extension of police powers in both the Thames Valley, and NSW should be re-evaluated to compare the impact upon crime detection with the erosion of civil rights (such as genetic privacy concerns and the erosion of the presumption of innocence principle) and the potential for miscarriages of justice to occur.
Like previous research, this dissertation found that the use of DNA profiling can sometimes lead to significant miscarriages of justice. This study offers insight into how criminal justice practitioners perceive the dangers of using DNA evidence and how injustices can occur. It was not surprising that the defence lawyers identified the majority of problems with DNA evidence, nor was it surprising that the majority of police and prosecutors believed that the value of DNA profiling outweighed concerns
271 for civil liberties. The use of the DNA Review Panel in NSW is a positive step towards addressing previous miscarriages of justice, but, as it currently stands, it is insufficient. It is important that neither the Thames Valley nor NSW over-rely on DNA evidence and ignore its potential to cause injustices. The process of developing future legislation needs to be made in conjunction with civil libertarian groups and care needs to be taken that the perceived value of DNA evidence does not outweigh the concerns for genetic privacy or civil liberties.
Another benefit of examining two jurisdictions was the ability to compare how the use of DNA profiling differed between the jurisdictions. The findings suggest that despite many similarities, there are some significant differences between the use of DNA profiling in the NSW and Thames Valley criminal justice systems. DNA evidence is used in the same way by both the NSW and Thames Valley practitioners to investigate criminal cases. There are also similarities in the services provided to criminal justice practitioners. For example, both police services provide their staff with varying levels of support on how to use DNA evidence and how to interpret relevant legislation. The differences are attributed to the level of resources devoted to forensic science structures and the legislative basis of police powers for the use of DNA profiling in criminal cases. Consequently, the differences relate to which individuals the police can collect and retain profiles from, the number of samples that can be collected and analysed from crime scenes, and the time taken to analyse samples. Despite the aspirations of the NSW police ministers, and some criminal justice practitioners, it is unlikely that NSW will achieve, or even benefit from, the adoption of extensive legislation and databases as used in the UK. This is because NSW lacks the resources to utilise DNA profiling to the same extent as the UK.
Unfortunately, this dissertation was limited in a number of ways. First, the comparative nature of this study was limited to three of the six practitioner groups. As criminal lawyers and judicial officers could not be interviewed in the Thames Valley, a number of the issues raised in the NSW interviews were not explored in the Thames Valley data. Although this has limited the level of comparative analysis, the data still provides
272 rich information on how the Thames Valley police, SOCOs, and scientists perceive and use DNA evidence.
Second, the data from the interviewees may not be representative of their organisations. The interviewees within this study participated either because they were nominated by their organisation, or because they had a personal interest in the subject. In both instances, the responses were more selective than representative. Despite these limitations, the interviews revealed important information about the use and impacts of forensic DNA profiling on the criminal justice system, and in some cases on the organisation’s “political line”.
Despite these limitations, this study offers insight into how the NSW and Thames Valley criminal justice systems have been altered by the introduction of DNA technology. It provides a detailed examination of the influences that have directed the adoption and trajectory of the technology, as well as highlighting the need for caution before continuing to expand the use of the technology.
DNA evidence is fallible. As such, problems have occurred where it was the only piece of evidence used in a case. Courts should not routinely accept DNA evidence as reliable or objective, especially when there is a possibility of secondary transfer or contamination. Criminal justice practitioners need to continue scrutinising DNA evidence. In addition, the research reported here indicates that a closer analysis of the perceived benefits of DNA profiling needs to be considered in relation to the potential to create miscarriages of justice and erode civil liberties, such as the right to silence and the presumption of innocence.
The use of business structures and market mechanisms, as recommended by the Touche Ross Report, should also be reconsidered with particular attention to the unintended consequences they have caused. The following issues are of particular concern: the pressure placed on scientists to create profiles – often after needing several attempts to do so - because police view them as clients; the perception by defence lawyers in NSW that samples created by a particular laboratory are biased; and the creation of
273 performance indicators that have pressured SOCOs to collect DNA samples even where they are apparently irrelevant. Care needs to be taken to ensure that the unintended consequences and social problems created by DNA profiling do not become black- boxed by its positive attributes and by the high profile cases where DNA evidence has resulted in convictions.
This research is important because it highlights the impacts of DNA evidence on criminal justice practitioners, which have passed largely unnoticed. These impacts should be taken into consideration when new policies are developed. Utilising the full legal potential of DNA profiling requires the support and proper implementation of the legislation by the criminal justice agencies and the practitioners who are required to use the technology. It is unlikely, however, for the full potential of DNA profiling to be recognised while there are continuing concerns about its use in the over-representation of ethnic groups in the criminal justice system and concerns about the protection of genetic privacy. This research indicates that while there has been substantial support from the agencies in theory, there has been insufficient operational training for police and criminal lawyers in the use of DNA profiling. In addition, the support for the legislation requires substantial resources, which the NSW police have been unable to provide.
The current use of DNA evidence needs to be re-considered in light of three main issues: budgetary constraints; how practitioners use DNA technology; and the effectiveness of DNA evidence in investigations and prosecutions. As the Thames Valley and NSW both have a limited budget for forensic analysis, it would be worthwhile to examine how much extra money is spent on DNA evidence in an investigation (this thesis was able to provide estimates of this). In addition, further research is needed on the possibility of devoting more resources to volume crime than major crime cases. Restricting analysis on items where the offender is already known may save time and resources, which can then be re-allocated to offences with no known offender.
274 The second main implication of this study refers to the need to pay more attention to how practitioners understand and use forensic identification tools. The knowledge or understanding that a criminal justice practitioner has about DNA evidence can affect its effectiveness, as well as create opportunities for miscarriages of justice. This thesis found that in some cases, the process of satisficing was insufficient and some practitioners required more knowledge to use the evidence correctly. A number of examples in this thesis illustrated that some of the practitioner’s limited knowledge, or understanding, of DNA evidence impeded its use in some cases, and in other cases it was used incorrectly. Further research is needed on this area to determine whether more training would increase the effective use of DNA evidence. Additional research also needs to be conducted within the prison setting to understand prisoners’ experiences with DNA profiling.
The third issue, and perhaps most important one, that requires further attention is the overall effectiveness of DNA evidence. As there is no comprehensive research in either the Thames Valley or NSW on the overall effectiveness of DNA evidence, more research is required in order to understand the number of identifications and convictions that DNA has contributed to. This is needed because DNA evidence is viewed as the gold standard in forensic sciences that provides stronger evidence than other more traditional types of evidence. As this perception is undermining other evidence types, it is imperative that the usefulness, effectiveness and efficiency of DNA evidence are all compared with the types of evidence that it is replacing. DNA evidence, whilst powerful, is not infallible, and this thesis has demonstrated there are still a number of problems with the technology. As such, whilst DNA evidence may be highly valued, it should not be seen as the gold standard that can replace all other types of evidence.
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302 APPENDIX ONE: KEY DATES IN THE HISTORY OF DNA PROFILING
1858 William Hershel used fingerprints to make a contract with an Indian road contractor.
1872 France introduced Identity Documents for people travelling to and from France.
1880 A thief in Japan was identified by his fingerprint at the crime scene. When confronted with the fingerprint match the offender confessed.
1882 Alphonse Bertillon introduced Bertillonage or anthropometry into the Paris Prefecture Police.
1892 Francis Galton devised a classification system for fingerprints.
1901 Fingerprinting was given a trial basis in London.
1902 The ‘Will West’ case questioned the reliability of Bertillonage.
1920 Edmond Locard established the Law of Contact or Locard’s Exchange Principle.
1953 James Watson and Francis Crick identified the structure of DNA.
1970s A region of DNA that is void of genetic information, otherwise known as non- coding or junk DNA, and which is extremely variable between individuals was discovered in America.
303 1984 In the UK Alec Jeffreys discovered Restriction Fragment Length Polymorphism (RFLP) and called the procedure DNA Fingerprinting. The UK enacted the Police and Criminal Evidence (PACE) Act 1984.
1985 The first use of forensic DNA profiling occurred in a UK immigration case.
1986 Kary Mullis discovered Polymerase Chain Reaction (PCR) in America.
1987 In the UK, police used DNA profiling in the Pitchfork case to clear a seventeen- year-old suspect of two rape-murders. In the same case, the first mass-screen was conducted and over 5,000 local men submitted DNA samples to the police.
1987 Robert Melias became the first person to be convicted of a crime on the basis of DNA evidence in the UK.
1989 Gary Dotson became the first person to be exonerated on the basis of DNA evidence in the US. DNA evidence was challenged in the US case of Castro (1989). The start of the DNA Wars. An ACT court in Australia used DNA evidence for the first time to convict Desmond Applebee of three counts of sexual assault. In Victoria, George Kaufman was convicted - on the basis of DNA evidence - of the rape of sixteen women over a four-year period in Melbourne's south-eastern suburbs.
1992 The Australian National Institute of Forensic Science commenced operations. The National Research Council (NRC) published a report in an effort to close the DNA Wars.
1994 DNA evidence was again challenged in the OJ Simpson trial in the US. This case attracted considerable media attention and illustrated that the DNA Wars were still occurring.
304 The UK enacted the Criminal Justice and Public Order Act (CJPO) 1994.
1995 The UK established the world's first national DNA database on 10 April 1995.
1996 The DNA Wars were closed by the NRC 1996 report. In the USA, mitochondrial DNA evidence was used in a court for the first time to convict Paul Ware of rape and murder.
1997 Victoria became the first jurisdiction in Australia to enact legislation regulating the use of a DNA database. The UK enacted the Criminal Evidence (Amendment) Act 1997.
1998 The FBI established the National DNA Index System in the US. National standards for obtaining DNA profiles were introduced into Australian laboratories. The Australian Federal Government committed $50m to establish CrimTrac.
2000 NSW enacted the Crimes (Forensic Procedures) Act 2000 and the Crimes (Forensic Procedures) Regulation 2000. NSW conducted its first mass screening in Wee Waa. CrimTrac Agency was established.
2001 The National Criminal Investigation DNA Database (NCIDD) was established by CrimTrac to allow the nine Australian jurisdictions to match DNA profiles. However, none of the jurisdictions had legislation to allow the sharing of profiles. The UK enacted the Criminal Justice and Police Act 2001 (CJPA).
2002 NSW enacted the Crimes (Forensic Procedures) Amendment Act 2002.
2003 The UK enacted the Criminal Justice Act 2003.
305 2005 The UK enacted the Serious Organised Crime and Police Act 2005 (SOCP).
2006 NSW enacted the Crimes (Forensic Procedures) Amendment Act 2006 and the Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006.
2007 New South Wales committed to signing the single ministerial arrangement to use the CrimTrac national DNA database, and used bi-lateral agreements with other jurisdictions. NSW is currently matching DNA profiles with five of the eight other Australian jurisdictions.
306 APPENDIX TWO: THE SCIENCE OF DNA PROFILING
One of the main complexities in public discourse on DNA evidence is the relative unfamiliarity of the science and technology behind forensic DNA evidence. It is important for people who discuss and use DNA technology to understand its scientific and technical foundations in order to utilise DNA evidence fully. For example, when DNA profiling was first introduced into the legal system, defence lawyers failed to challenge the admissibility of DNA evidence because they lacked knowledge of scientific principles and the technological processes to understand that DNA evidence was fallible.
What is DNA?
It is important to understand what DNA is, or the ‘nature of DNA’, to subsequently explain why it is a unique identifier and why it has become a tool in the criminal justice system. DNA provides law enforcement officials with the ability to uniquely identify an offender through biological material deposited at a crime scene.
Deoxyribonucleic acid, or DNA, is the genetic blue print of life. Like fingerprints, DNA can uniquely identify a person (except for identical twins). As demonstrated by Watson and Crick, the DNA molecule is a double helix (Watson 1981). DNA is comprised of nucleotide units linking together to form two helical chains. The nucleotides have three component sections that allow each chain to be strongly connected but have weaker connections between the two chains. The component sections are a nitrogen base connected to a ribose sugar bound to a phosphate group. Each chain or backbone130 is made when the sugar (ribose) of one nucleotide connects to a neighbouring phosphate of another nucleotide. This continues until the chain is very long and makes a helical molecule. The nitrogen bases protruded from this chain allows the nitrogen bases of the second chain to form weak bonds between them. The bases can only connect in preordained combinations as explained later. This produces a double helical chain molecule which can easily be separated into its two constituent chains. The nitrogen
130 Proteins also help support the whole structure. 307 bases are adenine (A), thymine (T), cytosine (C) and guanine (G), which pair together in the formation of A-T, T-A, C-G or G-C to make ‘base pairs’. The human genome consists of approximately three billion base pairs (Butler 2005: 20). In each nucleus, DNA provides the complete instructions for the reproduction of that organism.
The instructions for the reproduction of an organism provide the genetic information needed for hereditary transfer. Genetic information is transferred along bloodlines by chromosomes. Chromosomes are “dense packets”’ of DNA and proteins (Butler 2005: 20). Each person has 46 chromosomes; 22 matched pairs of chromosomes and two chromosomes that determine the sex of a person. One-half of a person’s DNA information is obtained from their mother and the other half from their father. The DNA profiles of family members are often very similar. The recognition that DNA profiles are similar between family members has allowed the police to use familial DNA as a new tool to find offenders and narrow the potential number of suspects. Familial DNA refers to the process where the police find an offender through another family member’s DNA, which has implications for databases and the use of DNA profiles to identify suspects through familial association.
The uniqueness of a person’s DNA arises from the sections between the genetically coded (or genes for the person’s appearance and biochemical processes etc) sections of the DNA genome.131 The sections between genes are called introns and have no genetic information in a biochemical sense. These intron sections are often called non-coding or “junk” DNA. The non-coding regions are the area that concerns forensic DNA. These non-coding regions contain polymorphic (variable) markers - or loci - that repeat, and it is the number of repeats that differ between individuals making profiles specific to individuals. Various studies have shown that the more sequences of base pairs tested the higher the probability of a unique profile. Consequently, the greater the number of markers tested will increase the probability of a unique match. It is important for those involved in the criminal justice system, particularly the judge and jury, to understand that not every variable marker in the human genome is tested. Rather, a selection of markers are selected for testing which reduces power and leaves room for the possibility
131 The coding regions are the genes and contain the information necessary to make proteins. 308 that the DNA profile will match more than one person. As such, DNA evidence relies upon the number and quality of the markers testes. For example, if a DNA sample is degraded, less markers will be tested, which may mean that only a partial profile can be produced. This means that the likelihood that the sample matches one specific person decreases.
The number of sequences tested for a forensic profile differs between countries. For example, usually Australian scientists test for nine loci and UK scientists test ten loci, including the sex loci. However, there have been cases where the UK police have based an arrest on six loci, as in the burglary case where the man accused suffered from Parkinson disease. The more loci tested, the more unique a profile is.
There are two further aspects of DNA relevant to the criminal justice system. The first is that DNA resides in every nucleus and mitochondria (only maternal DNA) cell, which indicates that DNA can be found in nearly every biological sample deposited. This includes blood, semen, hair, skin cells, saliva and sweat (from the skin cells contained within it), and fingernail clippings. The diversity of samples in which DNA can be found has allowed DNA to be used as evidence in any crime where biological material has been discovered. Second, DNA can be seen as “a ‘computer program’ that determines our physical features and many other attributes” (Butler 2005: 17). Scientists are utilising this ‘computer program’ to determine the sex and ethnic origin of a suspect and even details such as a person’s hair colour.
DNA profiling can now provide police with individualising information about a suspect. In cases where a profile is created but does not match a profile already on a database or with a known suspect, DNA evidence can provide additional information to the police to aid the investigation. Specifically, DNA profiling can provide information about the race of a person (TVP3), the familial relationships of two profiles and whether the suspect has red hair (TVP6). Specifically, according to TVP3, DNA profiles can provide an indication of what ethnicity a person is, and can also exclude certain
309 ethnicities.132 In practice only the marker for sex is routinely tested. The ability to find genetic information about ethnicity and physical characteristics raises serious concerns about the future of forensic DNA testing, and the potential for scientists to find more discriminating information about individuals from coding areas of the DNA structure (as opposed to examining the non-coding sections which provides no information on the genetic appearance of a person or their propensity for diseases). Legislation should be introduced to protect this genetic information and ensure that it is only used for the identification of missing persons or for the identification of suspects in criminal cases.
Technologies of DNA profiling
There are a number of DNA profiling technologies currently available. The main ones are, restricted fragment length polymorphism (RFLP), polymerase chain reaction (PCR), low copy number (LCN), mitochondrial DNA (mtDNA), Y chromosome markers (Y-STR DNA), autosomal single nucleotide polymorphisms (SNPs) and Y-chromosome SNPs. Each subsequent technological advancement in DNA profiling has added a new dimension to the investigation of crime.
The first technology, developed in 1985, was restriction fragment length polymorphism (RFLP). RFLP was the primary technology for analysing DNA samples until the early to mid-1990s. Alex Jeffreys developed RFLP in 1985 to analyse the repeat polymorphic markers in the non-coding regions of DNA, these are known as variable number of tandem repeats (VNTRs). 133 It was through Jeffrey’s research on RFLP and VNTRs that DNA was recognised as a useful tool for the criminal justice system.
The process of RFLP involves a number of steps to create a DNA profile. In RFLP DNA typing, restriction enzymes cut chromosomes into hundreds of fragments at multiple set sites (loci) (Saferstein 1998: 413). These enzymes target the non-coding regions of DNA and contain the repeating sequences or VNTRs. A synthetic chemical label is used to identify the relevant fragments. Once identified, the probe binds itself to
132 The term ‘ethnicity’ raises a number of sociological issues that will not be covered by this thesis. The police officer’s comment is taken to mean race, rather than ethnicity, which implies a cultural association rather than biological association. 133 Tandem refers to paired sets of separate strands of DNA. 310 the fragment excluding other fragment sizes (Roberts and Raymond 1990). RFLP then measures the length differences of the sliced DNA through a process of electrophoresis.134 During electrophoresis, the smaller DNA fragments will move faster along a plate than the longer fragments. The double-stranded fragments of DNA are then separated and subjected to Southern Blotting, which involves moving the fragments onto a nylon membrane. After the nylon has been exposed to radioactivity for several days, bands will appear where the radioactive tags have stuck to the fragments of DNA on the sheet. RFLP is no longer routinely used for forensic DNA typing because of a series of technical problems, the main one being the sensitivity of the technique with small sample volumes (see Table Sixteen).
PCR has revolutionised DNA profiling because of its ability to create profiles from samples that are limited in both quality and quantity (see Table Sixteen). “Without the ability to make copies of DNA samples, many forensic samples would be impossible to analyze” (Butler 2005: 63). DNA from crime scenes is often so minute (often invisible to the naked eye) or degraded that RFLP is insufficiently discriminating. The adoption of PCR technology has allowed DNA to be routinely used in all types of criminal investigations. In addition, as PCR is free from restrictions on corporate use, laboratories can use the technology without paying property rights (Williams and Johnson 2008: 46). Thus making the technology more cost efficient to governments and law enforcement agencies.
PCR can be likened to a Photocopier because PCR produces multiple copies of a particular sequence of DNA in a biological sample. The DNA sample is heated so that the double-stranded DNA molecules separate. Primers are then added to the separated strands of DNA. The primers will combine with the single stranded DNA. Chemicals are then used to rebuild the double-stranded DNA molecule using the primers. This produces two copies of the double-stranded DNA molecule. This process is repeated until there is sufficient material to test, usually twenty-eight times at least. The DNA is tagged and subjected to electrophoresis to produce bands. Typically over one million
134 Electrophoresis is the electric separation of DNA fragments through charge differences. 311 copies of the original DNA molecule are made through 25 to 30 cycles (Saferstein 1998: 418). Each PCR sequence takes less than two minutes to perform.
The use of PCR has enabled the use of markers known as short tandem repeats (STRs) instead of variable number of tandem repeat (VNTR) markers. PCR extracts and amplifies different combinations, or multiplexes, of STRs to create a profile. This shift provided higher discrimination power than RFLP, whilst minimising the time needed to obtain a result from a sample and the sample size required. “STRs are locations (loci) on the chromosome that contain short sequence elements that repeat themselves within the DNA molecule” (Saferstein 1998: 420). As STRs are by definition short, they can be analysed multiple times. This process is called multiplex STR. The attraction of STRs is that there are hundreds of different types of STRs in the human genome. Thus the more STRs identified and profiled, the probability of two people sharing the same profile decreased (Saferstein 1998: 422) and because the number of repeats in STR markers is highly variable among individuals a large probability can be calculated (Butler 2005: 85). The repeating sequence has only three to seven bases and there are less than four hundred bases in the entire length of an STR.
Whilst PCR has improved the likelihood of profiling minute biological material, LCN can provide profiles from miniscule samples below the range of PCR (see Table Sixteen). The emergence of LCN has meant that DNA can be collected from a wider range of crime scenes and objects. LCN can provide DNA profiles from a crime scene that would otherwise be unavailable. For example, DNA can now be retrieved from sunglasses (Pizzamiglio, Mameli, Maugeri and Garofano 2004), from matchsticks used in arson cases (Orr-Munro 2001) and from fingerprint ridges marks (FSS 2003b). LCN still relies on STRs, and PCR is used to amplify the small samples.
MtDNA differs from nuclear DNA as it is inherited solely from the mother (Budowle, Biancavilla and Adams 2001: 6). There are two types of mitochondria DNA profiling; mitochondrial sequencing which has a discrimination power of less than 1 in 100; and mitochondrial minisequencing which has a discrimination power of approximately 1 in
312 20 (FSS 2002). 135 US courts have heard mtDNA results since 1996. Since the early 2000s, the technology has been improved to allow more substantial probability numbers. Rather than probabilities of one in a hundred, courts can now hear probabilities of one in 5,000 people who share an mtDNA profile (Kaye, Hans, Dann, Farley and Albertson 2007).
Like mitochondrial DNA, Y-chromosomes also represent ‘lineage markers’ that are specific to gender (Butler 2005: 201). As such, they are passed from one generation to the next without changing (unless a mutation occurs). This also serves as a limitation for Y chromosome testing (see Table Sixteen). As the Y-chromosomes are passed directly from father to the son, there is limited variance between a father and son’s Y chromosome profile in the absence of mutation (Butler 2005: 203). This means that like mtDNA, the probability of two people sharing the same Y chromosome profile is low. In addition, Y-STR testing can allow police to search databases based on surnames to find a related match (de Knijff 2003).
It can be difficult to use Y-STR profiles for more than intelligence because it is difficult to exclude other patrilineal male relatives as the donor of the sample. In 2006, Washington State prosecutors attempted to introduce Y chromosome STR DNA evidence into the case of State of Washington v. Russell. The defence claimed that the scientific community, under Frye, did not generally accept the scientific theory of Y- STR DNA testing. The court found that DNA systems were no longer required to pass the Frye test and that the limited use of Y-STR profiles in the US was a result of insufficient funding rather than a problem with the technology. Y-STR profiles are not used routinely in courts, and are not used in Australia because of limited resources.
There has been an increased interest in the use of single nucleotide polymorphisms (SNPs) for forensic purposes. A SNP is a small genetic variation that can occur within an individual’s DNA sequence. SNP occurs when one of the four base structures of DNA (A, G, T, C) replaces another base structure (for example AAGGTTA becomes
135 Mitochondrial sequencing was introduced into forensics in 1994, while mitochondrial minisequencing was introduced into forensics in 1998. 313 ATGGTTA) (National Centre for Biotechnology Information [NCBI] 2008). SNPs make up 90 percent of all human genetic variation and occur every 100 to 300 bases on the human genome (Human Genome Project 2008). As a result, they are useful when other samples are too degraded for STR typing. However, SNPs have a limited usefulness because approximately four times as many SNPs are required to produce the same level of discriminating profiles that STR typing produces (Gill 2001). Y- chromosome SNPs are used to trace historical lineages and to make inferences about the origins of the population.
The latest development by scientists is the portable labs on chips (Adler and McCormick 1998). This new development would allow police to call the lab on chips, or van, out to a crime scene, profile the DNA sample on the spot. In 2000 the New York Police Department began a pilot project experimenting with portable DNA laboratories (Duster 2003). The police can take a buccal swab and place it on a chip the size of a credit card and run it through a computer at the crime scene. A profile is produced that the police can then send to a database where, currently, a match can be achieved in 12 minutes (Duster 2003). The UK responded with its own labs on chips van in the last few years with the introduction of a Forensic Response Vehicle (FRV). New technologies such as these continue to offer the criminal justice system new tools to identify offenders more effectively and efficiently.
314 TABLE SIXTEEN: THE ADVANTAGES AND DISADVANTAGES OF DNA PROFILING TECHNOLOGIES Technology Period of use Advantages Disadvantages in forensics RFLP 1985 – mid 1. It produces more 1. Requires double stranded Restricted 1990s discriminative profiles than DNA (Inman and Rudin fragment any other current technique 1997). Double stranded DNA length because it uses both strands of is difficult to find at most polymorphism the double helix. crime scenes because samples are usually single stranded due to the small or degraded nature of the sample. 2. Requires a large amount of high quality sample. 3. RFLP is extremely time consuming – it takes several days to profile a sample and more expertise than other technologies require. 4. It is expensive. PCR Late 1980s - 1. It only requires a single 1. It cannot discriminate to the Polymerase current strand of DNA, which means same extent as RFLP because chain reaction that degraded samples can still fewer loci are tested due to the be tested. limited sample size available. 2. PCR requires 10 000 to 200 As a result, it is more useful to 000 time less DNA than RFLP exclude a suspect than include which allows smaller and them (Saferstein 1998). degraded samples to be tested 2. Some samples are still too (Easteal 1990; Butler 2005; small or degraded to be tested. Saferstein 1998). 3. It is cheaper and less time consuming than RFLP. 4. The multiplication of a sample provides an increased chance for independent tests to be conducted (Saferstein 1998: 418). LCN 1999 – 1. It has allowed DNA 1. As the size of the sample is Low copy Current. It was material to be extracted from so small, issues have arisen as number briefly more crime scenes. to how the DNA was deposited suspended in 2. It requires less than 100pg at a crime scene – issues of the UK of DNA to analyse (Gill, secondary transfer have between Whitaker, Flaxman, Brown become routine considerations. 21/12/07 till and Buckleton 2000). 2. LCN has increased the rate 14/01/08 while of mixed samples. This makes the Crown it harder to generate separate Prosecution profiles. Service 3. As LCN uses such minute reviewed its quantities, it increases the risk use in criminal of collection-based or trials. laboratory-based contamination.
315 mtDNA 2000s 1. It is very useful to analyse 1. It is only useful for tracing Mitochondrial degraded or charred bones, female hereditary links. DNA teeth and hair. It is often used 2. It does not have the same in missing person cases or discriminatory power as disaster victim cases. It was nuclear DNA because there are used in the US September 11 fewer features that can be 2001 terrorist attack and the identified in a shorter length Bali Bombings in October (FSS 2002). In addition, the 2002. It has been used to sequence variation is not identify soldiers from the first unique to an individual, further two world wars and in the case minimising the discriminative of Anastasia, the Tsar’s power (NIJ 2000: 47). missing daughter (Lee and Tirnady 2004). Y-STR 2000s 1. Y-STRs can be used to 1. It has a low discriminatory Y identify male suspects. This is power. chromosome important in sexual assault markers cases where the semen may be mixed with the vaginal epithelial cells (NIJ 2000: 49). 2. It is useful in missing person investigations and identifying mass disaster victims. SNPs 2000s 1. Can be used when the 1. Requires four times as many sample is too degraded for SNPs to produce a profile STR analysis. equivalent to an STR profile.
316 APPENDIX THREE – INTERVIEW SCHEDULES
Scientists
Topic 1: General Information I would like to begin this interview with a brief discussion about your time and role as a scientist/technician. 1. Firstly, would you describe yourself as a technician or a scientist? Do you see any distinction between the two titles? 2. How long have you been a scientist/technician? 3. Do you view DNA as a science or a technology in regards to a criminal context? 4. How much experience do you have with DNA technology as a form of evidence? 5. Have you ever had to appear in court as an expert witness in regards to DNA? 6. Have you always worked for DAL/FSS? 7. What is the main structuring of DAL/FSS? 8. Do you think DAL should be within Health? Or is there a more preferable system?
Topic 2: Science/Technology 1. Could you please describe the normal procedures a DNA sample would go through after it is sent to the lab? 1. How many people handle the actual sample? 2. How much of the procedure is automated? 3. How long does it usually take to create a profile from a sample> 4. Areas of contamination or corruption? 5. Issues relating to mixed samples? 6. Planted/fake samples? 7. Safeguards? 2. How much knowledge do you have about the actual sample prior to testing? 1. Do you know what is in the Police report? Do you have any formal interactions with the police? 3. How often do prosecutors ask for additional testing? 4. Did the backlogs a few years ago affect change in the laboratory? 5. What is the procedure for comparing a sample to one on a database (both NSW and Australian database)?
Topic 3: Proliferation
1. How widespread has the use of DNA technology become in the criminal justice system? 1. How often do you perform criminal DNA profiling? 2. How often are called to court as an expert? 2. Why has DNA technology been so widely accepted and used? 1. How does DNA technology compare as a form of evidence to other more traditional forms of evidence such as fingerprint identification?
317 3. Are you involved in other kind of evidentiary procedures or diagnostic testing? Do you apply multiple tests (DNA-related or others) to the same batch of samples? 4. Are you familiar with popular TV programs such as CSI? 1. Have these types of shows changed your social standing? 2. Have these types of shows changed your self-image? 3. Have these types of shows generated more interest in the field – are there more students in labs now?
Topic 4: Legal Context
1. What are the laws and regulations governing the use of DNA in criminal cases? Are you satisfied with the way they have been implemented? (If not, why not?). 1. What are the strengths? 2. What are the weaknesses/Are there any issues?
Topic 5: Impact
1. What do you see as the main role of DNA technology? 1. What do you think of the use of DNA databases? 2. Is the justice system too dependent on DNA? 3. Is DNA introduced too often in criminal trials? 2. How has DNA technology affected your role as a scientist/technician? 1. Has it placed more pressures on you? 2. Have you had to extend your training? 3. Are you called more frequently to court as an expert? 4. How do you find explaining DNA technology to other practitioners in the justice system and juries?
Topic 6: Injustices
1. Are there any dangers in the use of DNA technology in the justice system? How might these issues be addressed?
Final Comments
1. Are there any other issues you would like to discuss? 2. Do you have any questions or final comments?
Police
Topic 1: General Information I would like to begin this interview with a brief discussion about your time and role as a police officer/detective. 1. How long have you been a police officer? 2. What types of cases are you normally involved in? 3. How much knowledge do you have about DNA technology? 4. Where did you acquire your knowledge about DNA technology? 5. How much experience do you have with DNA technology as a form of evidence?
318 6. How much contact do you have with the laboratory?
Topic 2: Proliferation 1. How widespread has the use of DNA technology become in the criminal justice system, and in particular the process of investigation? 2. Is DNA technology mainly an intelligence tool or a tool for evidentiary proof? 3. Why has DNA technology been so widely accepted and used? 1. Do police routinely use DNA? 2. How does DNA technology compare as a form of evidence to other more traditional forms of evidence such as fingerprinting and eyewitness identification? In terms of collection and use.
Topic 3: Legal Context 1. What are the laws and regulations governing the use of DNA in criminal cases? Are you satisfied with the way they have been implemented? (If not, why not?). 1. What are the strengths? 2. What are the weaknesses/Are there any issues? 2. How have these laws affected or changed your role as a police officer and the manner in which you conduct your investigation?
Topic 4: Impact 1. What do you see as the main role of DNA technology? 1. Are you comfortable finding DNA evidence at a crime scene? 2. How strong is DNA as a form of evidence? 3. What do you think of the use of DNA databases? 4. DNA Elimination databases? 5. Is the justice system too dependent on DNA? 2. Could you please describe the process involved in investigating a crime, and the role DNA technology plays in this process? 3. How has DNA technology affected your role as a police officer? 1. Has there been an increase in reporting of offences in your opinion? 2. The way a case is investigated? 3. Checking against falsely planted DNA samples, innocent or secondary transfer? 4. Questioning of suspects 5. Concept of mass screenings 6. Surveillance 7. Familial searching, genetic searching etc 8. How do you use DNA technology? 9. Do you perceive a case to be stronger with DNA present? 10. Can you give me any examples of cases that have affected the way you conduct your job? 4. Has DNA technology placed any new obstacles in the way of investigating or interviewing a suspect? (e.g. backlogs) 5. Are there any issues that can compromise a DNA sample at the crime scene or transferring the sample to the lab? 6. How has DNA technology affected other practitioners in the criminal justices system? (e.g. prosecutors, courts, defence lawyers, the defendants?)
319 Topic 5: Type of offence 1. Could you please describe the role DNA technology plays in the progress of homicide, sexual assault and property offence cases? 1. Are there any differences between the types of offence and use of DNA? 2. What are the most common sources of DNA evidence in each criminal offence? 3. Do you believe DNA technology should be used in all types of offences, or only certain cases? 2. How has DNA technology changed your role in each of the above cases?
Topic 6: Injustices 1. Are there any dangers in the use of DNA technology in the justice system and the process of an investigation? How might these issues be addressed?
Final Comments 1. Are there any other issues you would like to discuss? 2. Do you have any questions or final comments?
Scene of crime officer (SOCO)
Topic 1: General Information I would like to begin this interview with a brief discussion about your time and role as a crime scene officer. 1. How long have you been a crime scene officer? 2. What types of cases are you normally involved in? 3. Would you mind giving me a brief description of what your job entails? 4. How much knowledge do you have about DNA technology? 5. Where did you acquire your knowledge about DNA technology? 6. How much experience do you have with DNA technology as a form of evidence? 7. How much contact do you have with the laboratory? 8. Do you focus on collecting DNA, or do you look for a range of forensic evidence? 9. How much emphasis is placed on finding DNA evidence at a crime scene?
Topic 2: Proliferation 1. How widespread has the use of DNA technology become in the criminal justice system, and in particular the process of investigation? 2. Is DNA technology mainly an intelligence tool or a tool for evidentiary proof? 3. Why has DNA technology been so widely accepted and used? 1. Do police routinely use DNA? 2. Are you directed to look for DNA evidence? 3. How does DNA technology compare as a form of evidence to other more traditional forms of evidence such as fingerprinting and eyewitness identification? In terms of collection and use.
320 Topic 3: Legal Context 1. What are the laws and regulations governing the use of DNA in criminal cases? Are you satisfied with the way they have been implemented? (If not, why not?). 1. What are the strengths? 2. What are the weaknesses/Are there any issues? 2. How have these laws affected or changed your role as a crime scene officer and the manner in which you conduct your work?
Topic 4: Impact 1. What do you see as the main role of DNA technology? 2. Are you comfortable finding DNA evidence at a crime scene? 3. How strong is DNA as a form of evidence? 4. What do you think of the use of DNA databases? DNA Elimination databases? 5. Is the justice system dependent on DNA? 6. Could you please describe the process involved in investigating a crime scene, and the role DNA technology plays in this process? 7. How has DNA technology affected your role as a crime scene officer? 1. Checking against falsely planted DNA samples, innocent or secondary transfer? 8. Has DNA technology placed any new obstacles in the way of investigating a crime scene? 9. Are there any issues that can compromise a DNA sample at the crime scene or transferring the sample to the lab? 10. How has DNA technology affected other practitioners in the criminal justices system? (e.g. prosecutors, courts, defence lawyers, the defendants?)
Topic 5: Type of offence 1. Could you please describe the difference in collecting DNA technology between homicide, sexual assault and property offence cases? 1. Are there any differences between the types of offence and use of DNA? 2. What are the most common sources of DNA evidence in each criminal offence? 3. Do you believe DNA technology should be used in all types of offences, or only certain cases? 2. How has DNA technology changed your role in each of the above cases?
Topic 6: Injustices 1. Are there any dangers in the use of DNA technology in the justice system and the process of investigating a crime scene? How might these issues be addressed?
Final Comments 1. Are there any other issues you would like to discuss? 2. Do you have any questions or final comments?
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Prosecutors
Topic 1: General Information I would like to begin this interview with a brief discussion about your time and role as a prosecutor. 1. How long have you been a prosecutor? 2. Have you always worked for the NSW DPP? 3. What types of cases are you normally involved in? 4. How much knowledge do you have about DNA technology? 5. Where did you acquire your knowledge about DNA technology? 6. How much experience do you have with DNA technology as a form of evidence?
Topic 2: Proliferation 1. How widespread has the use of DNA technology become in the criminal justice system, and in particular the process of prosecution? 2. Why has DNA technology been so widely accepted and used? 1. Do prosecutors routinely use DNA? 2. How does DNA technology compare as a form of evidence to other more traditional forms of evidence such as fingerprinting and eyewitness identification?
Topic 3: Legal Context 1. What are the laws and regulations governing the use of DNA in criminal cases? Are you satisfied with the way they have been implemented? (If not, why not?). 1. What are the strengths? 2. What are the weaknesses/Are there any issues?
Topic 4: Impact 1. What do you see as the role of DNA technology? 1. Are you comfortable using DNA technology in a case –either to prosecute or having to argue against it when the defence presents it? 2. How strong is DNA as a form of evidence? 3. What do you think of the use of DNA databases? 4. Is the justice system too dependent on DNA? 2. How has DNA technology affected your role as a prosecutor? 1. The way a case is prosecuted? 2. Standards of proving a case? 3. Guilty pleas, court process, sentencing? 4. How do you use DNA technology? 5. Can you give me any examples of cases that have affected the way you conduct prosecutions? 3. Has DNA technology placed any new obstacles in the way of prosecuting? (e.g. backlogs) 4. How has DNA technology affected other practitioners in the criminal justices system? (e.g. police, courts, defence lawyers, the defendants?)
322 Topic 5: Type of offence 1. Could you please describe the role DNA technology plays in the progress of homicide, sexual assault and property offence cases? 1. Are there any differences between the types of offence and use of DNA? 2. What are the most common defences to the presence of DNA technology in each criminal offence? 3. Do you believe DNA technology should be used in all types of offences, or only certain cases?
Topic 7: Injustices 1. Are there any dangers in the use of DNA technology in the justice system and the process of prosecution? How might these issues be addressed?
Final Comments 1. Are there any other issues you would like to discuss? 2. Do you have any questions or final comments?
Defence Lawyers
Topic 1: General Information I would like to begin this interview with a brief discussion about your time and role as a defence lawyer. 1. How long have you been a defence lawyer? 2. What types of cases are you normally involved in? 3. How much knowledge do you have about DNA technology? 4. Where did you acquire your knowledge about DNA technology? 5. How much experience do you have with DNA technology as a form of evidence?
Topic 2: Proliferation 1. How widespread has the use of DNA technology become in the criminal justice system, and in particular the process of defending a client? 2. Why has DNA technology been so widely accepted and used? 1. Do criminal cases routinely use DNA? 2. How does DNA technology compare as a form of evidence to other more traditional forms of evidence such as fingerprinting and eyewitness identification?
Topic 3: Legal Context 1. What are the laws and regulations governing the use of DNA in criminal cases? Are you satisfied with the way they have been implemented? (If not, why not?). 1. What are the strengths? 2. What are the weaknesses/Are there any issues?
Topic 4: Impact 1. What do you see as the role of DNA technology?
323 1. Are you comfortable using DNA technology in a case –either to use as a defence or having to argue against it when the prosecution presents it? In appeal cases? 2. How strong is DNA as a form of evidence? 3. What do you think of the use of DNA databases? 4. Is the justice system too dependent on DNA? 2. How has DNA technology affected your role as a defence lawyer? 1. The way a case is defended? 2. Standards of proving a case? 3. Guilty pleas, court process, sentencing? 4. How do you use DNA technology? 5. Can you give me any examples of cases that have affected the way you conduct your defences? 3. Has DNA technology placed any new obstacles in the way of defending? (e.g. backlogs) 4. How has DNA technology affected other practitioners in the criminal justices system? (e.g. police, courts, prosecutors, the defendants?)
Topic 5: Type of offence 1. Could you please describe the role DNA technology plays in the progress of homicide, sexual assault and property offence cases? 1. Are there any differences between the types of offence and use of DNA? 2. What are the most common defences to the presence of DNA technology in each criminal offence? 3. Do you believe DNA technology should be used in all types of offences, or only certain cases?
Topic 7: Injustices 1. Are there any dangers in the use of DNA technology in the justice system? How might these issues be addressed?
Final Comments 1. Are there any other issues you would like to discuss? 2. Do you have any questions or final comments?
Judicial Officers
Topic 1: General Information I would like to begin this interview with a brief discussion about your time and role as a judge. 1. How long have you been a judicial officer? 2. Have you always worked for the [insert relevant court]? 3. What types of cases are you normally involved in? 4. How much knowledge do you have about DNA technology? 5. Where did you acquire your knowledge about DNA technology? 6. How much experience do you have with DNA technology as a form of evidence? 324 Topic 2: Proliferation
1. How widespread has the use of DNA technology become in the criminal justice system? 2. Why has DNA technology been so widely accepted and used? 1. Is DNA technology routinely introduced into criminal trials? 2. How does DNA technology compare as a form of evidence to other more traditional forms of evidence such as fingerprinting and eyewitness identification?
Topic 3: Legal Context
1. What are the laws and regulations governing the use of DNA in criminal cases? Are you satisfied with the way they have been implemented? (If not, why not?). 1. What are the strengths? 2. What are the weaknesses/Are there any issues?
Topic 4: Impact
1. What do you see as the main role of DNA technology? 1. What do you think of the use of DNA databases? 2. Is the justice system too dependent on DNA? 2. How has DNA technology affected your role as a judge? 1. Are there any particular judgements you use in your judgements? 2. How difficult was it to act as a gatekeeper to DNA technology? 3. Are you aware of issues such as the prosecutor’s fallacy? 4. How do you use DNA technology? 5. Do you take DNA technology into account when sentencing? 3. Has DNA technology placed any new obstacles in the way of determining a case? 4. How has DNA technology affected other practitioners in the criminal justice system? (e.g. police, prosecutors, defence lawyers, the defendants?)
Topic 5: Type of offence
1. Could you please describe the role DNA technology plays in the progress of homicide, sexual assault and property offence cases through the courts? 1. Are there any differences between the types of offence and use of DNA? 2. Do you believe DNA technology should be used in all types of offences, or only certain cases?
Topic 7: Injustices
1. Are there any dangers in the use of DNA technology in the justice system? How might these issues be addressed?
Final Comments
1. Are there any other issues you would like to discuss? 2. Do you have any questions or final comments?
325