Forensic use of DNA information v. human rights and privacy challenges.

Author:Parven, Khaleda
 
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I INTRODUCTION

The use of scientific genetic-based evidence (DNA profiling) (1) in legal case investigation processes brings into collaboration the disciplines of science and law, which have their own institutional needs, standards and imperatives. The combination of these two disciplines is broadly geared toward ensuring justice for various cases, without completing retaining and relinquishing their autonomy. (2) Recent scientific advances through DNA technology play an important role in providing legal protections (3) and the preservation of law and order. The widespread use of DNA data to detect offenders and protect the rights of the innocent (that is, exonerating the wrongly-accused) (4) is one of the most notable examples of such advancements and revolutionary impact of DNA technology, which makes the justice delivery system more efficient and accurate. (5) However, the use of this new technology is not completely risk free. DNA profiling may reveal very sensitive information about an individual and their family which may affect them adversely if not properly guarded against potential misuse--accidental or deliberate. The most common form of such misuse resulting in serious violation of privacy and human rights could be unauthorised disclosure of sensitive information with regard to a person's predisposition to disease and their ancestry, for instance, which can be obtained from their DNA samples. Therefore, it is important to adopt a balanced approach in the use of DNA information, so the risk of the violation of privacy and human rights remain at an acceptable level.

The identification of offenders and the protection of innocent suspects are two of the main goals for ensuring justice. (6) DNA samples and profiles are very useful for identification purposes, for example, in identifying victims of disasters, as well as suspects (including rapists and murderers). It is also useful for conducting parentage testing and for resolving immigration cases, where a familial relationship (or identity) is in question. (7) In many instances, suspects who are actually innocent are relatively quickly acquitted or excluded from legal proceedings. This technology is, in effect, upholding the principles of 'presumption of innocence', which requires that 'guilt must be proved beyond reasonable doubt', upon which each and every criminal justice system is based. Therefore, every accused person irrespective of his or her status has a right to a fair trial. This legal right even applies to those who have been convicted of similar offences committed in the past. (8) The right of a 'fair trial' is derived from the principles of natural justice. This right has also become the norm of international and regional human rights law (9) and it is also adopted by many countries in their procedural law, though the form and practice of the principles of natural justice may vary from system to system on the basis of prevailing conditions of the society concerned. (10) This is one of the fundamental canons of modern democracy and is reflected in legal jurisprudence throughout the world. With the support of DNA technology, the right for a fair trial has been enhanced and it has also contributed to the speedier administration of justice. (11)

During the mid-1980 s, the potential application of DNA typing or profiling was initiated by laboratories in the United Kingdom (UK), the United States (US), and Canada. (12) The modern forensic DNA typing invented by Professor Alec Jeffrey was first used in the Colin Pitchfork case in 1985 in the UK. (13) This was the first criminal case in which DNA was used in the UK and the resolution of this case provided an effective demonstration of this method's potential. It also demonstrated for the first time how a small DNA sample could be used to identify a perpetrator from amongst a large population. (14) By the late 1980s the technology was being used in the US by commercial laboratories and the Federal Bureau of Investigation (FBI). The pioneering Colin Pitchfork case and the rapid development of DNA technology databases firmly pointed toward the future of DNA profiling as the most important forensic investigative tool to be developed in the 20th century. (15) Within relatively few decades, DNA technology became commonly used in the investigative processes of many countries (including both developed and developing nations). However, the forensic use of DNA data is always subject to particular scrutiny not only because of its potential benefits in a justice delivery system but also due to the risk of possible misuse.

The following sections will address and discuss the issues with regards to human rights and privacy challenges in the context of forensic use of DNA or genetic information. While using such information in criminal or civil case investigations is useful, the issues of human rights and privacy need to be balanced with public interest or state security measures.

II USE OF DNA INFORMATION IN THE JUSTICE DELIVERY SYSTEM: HUMAN RIGHTS AND PRIVACY CHALLENGES

It is well recognised that genetic science is one of the most dependable sources of truth, particularly in disputes concerning human identity. Sheila Jasanoff has rightly pointed out that 'Genetic science produces truthful facts about human identity, and that establishing the truth in matters of identity is equivalent to ensuring justice.' (16)

As a result, DNA profiling or 'fingerprinting' is increasingly used for human identification in the legal proceedings of many nations. (17) Forensic DNA technology is used to analyse DNA profiles which normally originate from human DNA samples. These samples could be collected either from the crime scenes or from the body of suspects or victims. Then DNA profiles (that is, the analysed results of the DNA samples collected) are compared with previously stored profiles in the DNA database to locate matches. The forensic use of DNA samples and profiles has, therefore, enhanced the success of civil as well as criminal investigations and the process has already proved to be a valuable tool for delivering a speedy trial and justice. Recognising the potential of DNA Technology, in the case of People v Wesley (18) it was observed that 'DNA Typing is the single greatest advance in the "search for truth" ... since the advent of cross-examination'. (19)

Now countries are establishing and expanding human DNA databases (20) for their use in civil and criminal intelligence with such bases 'ranging in size from a few hundred to a few million samples'. (21) DNA databases are, therefore, an extraordinary resource for forensic evidence. (22) Use of DNA profiling by law enforcement agencies was initially justified for identifying rapists, murderers and other heinous offenders, but it has gradually been expanded to involve suspects of various other crimes. Since the events of 9/11 in the US, law enforcement agencies around the world have expanded their areas of investigation and the techniques used. The expansion and use of forensic DNA databases has also been justified on the basis of the threat of terrorism. However, there are several ethical objections to such uses. The implications to society have been raised because of extensive uses of human DNA data and DNA databases.

A Human Rights and Privacy Objections

Several objections with regard to the forensic use of DNA databases have been raised, and most of these objections are connected with the collection, retention, access and use of DNA samples that are the basis of DNA profiles. (23) Many forensic DNA databases retain DNA samples from various persons, including people, who have been acquitted after the conclusion of judicial proceedings, or where the charges were dropped or not proceeded with, or even where the samples are from persons excluded from investigation by that very sample. When DNA samples are kept and retained in any databases, it is possible to gather the most personal information about any individual (including his or her family) with regard to certain characteristics, including predisposition to certain diseases. (24) This is because '[g]enes are considered to be good predictors of many facets of human identity'. (25) They can indicate human physical traits (for example, eye colour) and a predisposition to certain diseases (for example, heart disease, inherited breast cancer). An examination of DNA samples can also detect genetic conditions that affect intelligence (for example, phenylketonuria) but sometimes not the degree to which a genetic condition may manifest itself (for example, Down Syndrome). It can also indicate a predisposition to certain mental illnesses (such as schizophrenia). Some researchers believe that DNA contains information regarding 'a series of behavioural characteristics, ranging from thrill-seeking (26) to aggression' (27) and 'the propensity for aggressive, addictive, or criminal behaviors'. (28) A number of authors and researchers, however, dispute the claims made in regard to the usefulness of DNA samples as predictive of such behaviours (rather than associated in some instances with certain behaviours), and point to the complex interactions of genetics and environment. (29) In addition, it is also 'well recognised that DNA contains information regarding familial lineage' (30) or pedigree. Such sensitive data has raised concerns for individual and familial privacy. As Simoncelli has observed:

DNA data banks pose a number of significant individual privacy Concerns ... Unlike fingerprints ... DNA samples can provide insights into personal family relationships, disease predisposition, physical attributes, and ancestry. Such information could be used in sinister ways and may include things the person herself does not wish to know. Repeated claims that human behaviors such as aggression, substance addiction, criminal tendency, and sexual orientation can be explained by genetics render law enforcement databases...

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