The Effects of DNA Evidence on the Criminal Justice Process Author Briody, Michael Published 2005 Thesis Type Thesis (PhD Doctorate) School School of Criminology and Criminal Justice DOI https://doi.org/10.25904/1912/2417 Copyright Statement The author owns the copyright in this thesis, unless stated otherwise. Downloaded from http://hdl.handle.net/10072/366784 Griffith Research Online https://research-repository.griffith.edu.au THE EFFECTS OF DNA EVIDENCE ON THE CRIMINAL JUSTICE PROCESS Michael Briody Adv Cert Pol, BA(Hons 1) School of Criminology and Criminal Justice Faculty of Arts Griffith University Submitted in fulfillment of the requirements of the degree of Doctor of Philosophy November 2004 Confidential Appendix With the approval of the Dean, Graduate Studies, five brief confidential interviews have been removed from the thesis. The author conducted these interviews with investigating police officers in relation to cases where DNA evidence was produced in court, but an acquittal nevertheless resulted. The interviews were removed from the following pages: 104, 127 and 151-2. ii ABSTRACT This research examines the effects of forensic deoxyribonucleic acid (DNA) evidence on decisions in the courts and on the conduct of criminal investigations. To assess effects on court decisions, quantitative analyses were conducted using primary data from the State of Queensland. A control-comparison method was used to assess the effects in court, and this was made within a context of other evidentiary and extra- legal factors that had a bearing on case outcomes. These other factors included defendant confessions, independent witness testimony and fingerprint and photographic evidence. A sample of 750 cases referred by police for prosecution and finalised past the appeal stage in court, was selected for examination. Half of these cases utilised DNA evidence, while the other half, as a control group, did not. Cases were selected in four categories: sexual offences, serious assaults, homicides and property crime. Data on the cases were analysed using advanced statistical methods and predictor models were developed to demonstrate how, given case configurations, the addition of DNA evidence could potentially alter court outcomes. Results for the three serious offence types were that DNA evidence emerged as a positive predictor that prosecutors would pursue cases in court, and it demonstrated a powerful influence on jury decisions to convict. Incriminating DNA evidence demonstrated no significant effect on inducing guilty pleas from defendants for serious crimes against the person. However, it did correlate significantly to cases reaching court and to guilty pleas being entered for property offence cases. The analysis of the effects on investigations relies on data from jurisdictions other than Queensland. Secondary data and the literature were used to assess the potential for strategically using forensic intelligence, along with dedicated investigative resources, to reduce property crimes like burglaries and car thefts. In the one study available that employed adequate research methods, three patrol areas in New South Wales, where a police operation was trialled, were compared to other areas that acted as a control. The police operation aimed at 100% attendance at property crime scenes, the use of intelligence from DNA and fingerprint identifications and i specialised investigative resources to reduce crime levels. While the operation failed to achieve its goal, it did provide some valuable lessons. The effectiveness of the national criminal DNA database in the UK, reputed to lead the world, was then evaluated in relation to domestic burglaries. Its Australian CrimTrac counterpart did not commence operations until March 2003, and by 2004 was not operating at maximum capacity. Because no published studies were located that measured any effects of the UK database on crime levels, the criterion selected to measure performance was the proportion of convictions achieved through the database to reported crime. For domestic burglaries, this ratio was calculated from secondary official data to be close to one percent (0.01), a figure that included the additional convictions achieved through the intelligence that the database provided. The research also examined forensic DNA in relation to issues of privacy and civil liberties. Privacy issues are discussed beginning with an historical background to the use and misuse of genetic data. This includes the searches for a “criminal gene” and for genetic links to criminal behaviour. DNA databases are contrasted with databanks, and it is questioned, since we leave our DNA wherever we go, whether it really is private. Civil liberties issues that are discussed include whether providing DNA is a form of self-incrimination; how DNA has helped exonerate the convicted innocent; wrongful convictions based on flawed DNA evidence; whether occasional “mass screenings” with DNA are a reversal of the onus of proof; concerns with DNA databases and “function creep”, and the planting or “forgery” of DNA evidence including the use of amplicon contamination. In the final chapter, a balance is sought between on one hand, the goal of police and government to provide a safe society, and on the other, the rights to privacy and civil liberties expected by individuals in Western liberal democracies. The chapter addresses the issues of concern raised in the earlier chapter about privacy and civil liberties, and makes recommendations on how these may be resolved. The general approach favoured is to increase police powers in specific situations, but to couple these with the protection of individual rights through greater regulation of those powers. The research also developed a case prioritising system aimed at helping clear laboratory backlogs. ii DECLARATION This work has not previously been submitted for a degree or diploma in any university. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made in the thesis itself. Michael Gerard Briody (25 November 2004) iii GLOSSARY OF ABBREVIATIONS AND ACRONYMS ACPO Association of Chief Police Officers (UK) AFIS Automated Fingerprint Identification System AIC Australian Institute of Criminology ANZFSS Australia and New Zealand Forensic Science Society ATSI Aboriginal or Torres Strait Islander B. & E. Break and Enter (Burglary) Offence BES Break, Enter and Steal BOCSAR Bureau of Crime Statistics and Research (NSW) CJ Criminal Justice CJC Criminal Justice Commission (Queensland) CMC Crime and Misconduct Commission (Queensland) CODIS Combined DNA index System (of the FBI) CRISP Crime Recording Information System for Police (Qld.) DNA Deoxyribonucleic Acid DPP Office of the Director of Public Prosecutions, Queensland ESR Environmental Science and Research Limited (NZ) FBI Federal Bureau of Investigation (United States) FLINTS Forensic-led Intelligence Systems FSS Forensic Science Service (UK) HMSO Her Majesty’s Stationery Office (London, UK) ICAC Independent Commission against Corruption (NSW) LAC Local Area Command, NSW Police LCN Low Copy Number (DNA) MtDNA Mitochondrial DNA MSO Most Serious Offence type MVT Motor Vehicle Theft NAFIS National Automated Fingerprint Identification System NATA National Association of Testing Authorities, Australia NCIDD National Criminal Investigation DNA Database (Aust.) NDNADB National DNA Database (UK) NETO No evidence to offer (in Magistrates Courts) NIFS National Institute of Forensic Science (Australia) NIJ National Institute of Justice, US Department of Justice OFPC Office of the Federal Privacy Commissioner OIC Officer in Charge OMCG Outlaw Motorcycle Gang OVPC Office of the Victorian Privacy Commissioner p Probability PAL Police Assistance Line (NSW) PCR Polymerase Chain Reaction PIC Police Information Centre (of the QPS) PPRA Police Powers and Responsibilities Act, 2000 (Queensland) QHSS Queensland Health Scientific Services QPS Queensland Police Service RCMP Royal Canadian Mounted Police RFLP Restriction Fragment Length Polymorphism RSMV Recovered Stolen Motor Vehicle iv SCAG Standing Committee of Attorneys-General (Aust.) S.E. Standard Error Sig. Significance SOC Scene(s) of Crime SOCO Scenes of Crime Officer SPSS Statistical Package for the Social Sciences STR Short tandem repeats STRP Short Tandem Repeat Polymorphisms TWGDAM Technical Working Group on DNA Analysis Methods (US) UUMV Unlawful Use of Motor Vehicle VNTR Variable number of tandem repeats VPLRC Victorian Parliament Law Reform Committee v SUMMARY OF CONTENTS Abstract i PART A: BACKGROUND Chapter 1 Introduction and Project Description 3 Chapter 2 History of Forensic Identification and DNA Profiling 22 Chapter 3 Literature Review and Hypotheses 52 PART B: CASE STUDY ANALYSIS Chapter 4 Effects on Sexual Offences in Court 81 Chapter 5 Effects on Homicide Cases in Court 108 Chapter 6 Effects on Serious Assault Cases in Court 132 Chapter 7 Effects on Property Crime in Court 158 Chapter 8 DNA Databases and Effects on Volume Crime 178 PART C: ASSESSMENT AND RECOMMENDATIONS Chapter 9 Evaluation of the Impact and Effectiveness of DNA Profiling in terms of the Goals of Criminal Justice 207 Chapter 10 Privacy and Civil Liberties 242 Chapter 11 A model system for balancing civil liberties and criminal justice system goals in the application of forensic DNA. 275 References, Case citations, Legislation 311 Appendices A, B, C and D. 349 vi TABLE OF CONTENTS PART A – BACKGROUND .........................................................................................1