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DNA and Criminal Justice System

Era of science and technology has promoted a new dynamic social order that is not only highly competitive but also reflects the transformation in industrialization, demographic transition, and integration of a global economy. On one hand knowledge explosion and awareness has aggravated crimes like trafficking, illicit trade in human beings, atrocities on minorities etc but on the other hand it has also equipped the enforcement agencies with sophisticated techniques to identify speakers through image analysis, search crime scene through finger print, skull and facial superimposition, DNA test and through forensic biology. Therefore science and technology are playing a predominant role in the Criminal justice system of the country. The cardinal rule of criminal justice is that

"Everyone charged with a criminal offence shall have a right to be presumed to be innocent until proved guilty in accordance with law. But at the same platform it should not amount to denial of justice to the victim who approaches the system under a believe that his rights would be protected and insured."

Meaning of DNA

Growth of science and technology has resulted in emergence of a new category of genetic variation that is Deoxyribose Nucleic Acid. In this process, an expert extracts DNA from the nuclei of white blood cells Or from hair follicle cells that cling to the roots of the hair that have fallen or have been pulled out or from saliva, brain tissue, teeth pulp etc.[1] This sample is first digested with an enzyme which cuts it into fragments at specific sites. These sites present in an individuals DNA, dictates the no. and size of DNA fragments generated by the enzyme. This process is repeated with several enzymes which cuts at different sites and thus sufficient information is gathered to construct a genetic finger print of a person.[2] The location of fragments is detected with X-ray films. It produces a picture of a strip of 46 fine thread like structures called chromosomes. These resemble the bar codes used for identifying goods at a store.

The degree of biological variation is so high that every individual produces a unique band pattern just as every individual has a unique set of fingerprints.[1] These contain the entire information about the development of an individual, its characteristics, susceptibility to diseases, formation of cells and tissues, physical characters etc in the form of genes. Genes consist of chemical, complex long - chained nucleic acid-DNA.

DNA is responsible for providing characteristic individuality to a person. The individual constitution of parents, the biological process through which eggs and sperms are formed, their union during fertilization sufficiently ensures that except the twins no two individuals could ever be conceived with exactly the same biological set up.[1] This biological specification is one which is being exploited by the forensic scientists for the benefit of police investigations.

Relevancy/role of DNA in Criminal Justice System

This DNA analysis is used to determine the identity of the criminal. Samples of blood, semen, skin, hair, perspiration, teeth, tissue, saliva etc. found at the crime scene are subjected to a DNA test. Since DNA of every individual varies so if from the scene of crime varied samples of blood, saliva, broken hair and finger prints are collected and DNA analysis is conducted. It would conclusively prove whether they belonged to a single individual or more than one persons were responsible for the crime. Possibility cant be ruled out that those implicated by the investigating agencies and subjected to a trial due to mistaken identity or lack of evidence, might not have committed the offence. Actual offender might have taken benefit of the loops in investigation and escaped the provisions of law.

In a similar chord if evidence is collected from the scene of crime - death of a victim of sexual assault. The forensic scientist would examine minutely and gather every possible sample from which evidence could be attained. He would examine the injuries on the body, wounds, the weapon if any used and collect blood stains from different places at the crime scene including those on the clothes. He would take finger print impressions from the glass, door and all other things to derive his conclusions. He can look for any other kind of impressions or stains on carpets, floor or on grass or mud. A DNA analysis of the finger prints, blood, hair can be derived to ascertain the identity of the person who committed the offence. This analysis would also assist the agency in determining the number of persons who committed the assault. The blood groups of the victim and assaulters can be deciphered. This technology would disclose the identity of the offender so that no innocent person is charged for the offence as in criminal law we go with the presumption that no innocent person should be subjected to a penalty, even though ten criminals have to be released.

This scientific material evidence would facilitate the enforcement agencies in proving beyond reasonable doubt the guilt of the accused and exonerate the innocent from suffering.[1]

Forensic scientists assist the enforcement agencies to the scene of crime and collect samples meticulously and accurately so that their evidentiary value is neither lost nor restricted.

Development of DNA data banking technique has further opened new arenas in investigation and forensic science. Earlier,science was not so advanced to give us DNA comparisons nor scientists had experimented with DNA database. But today it is possible. DNA collected from the sweat on a baseball cap discarded by a rapist at one crime scene can be compared with the DNA in the saliva from the bite mark on a different rape victim. Similarly skin cells shed on a ligature of a strangulated victim can be compared with the suspects blood or saliva sample.

DNA molecules are miniature medical records.[1] They are effective tools for surveillance. Databank of tissue samples contain a detailed information on genetic mapping of individuals who have earlier been convicted of offences.[2] Sample recovered from crime scene or the person of the offender can be matched with the existing DNA PROFILE in a databank. If it matches, it can be safely concluded that the same individual committed the crime, for which he was earlier charged and punished or charged but not subjected to a penalty as evidence was insufficient. Grave errors in prosecution evidence has led to colossal miscarriage of justice. Mistakes are made since our system does not guarantee 'justice' but guarantees 'chances'.[3] Chances of seeking justice have improved with the development of science of DNA fingerprinting and DNA data banking.

The investigative agency vested with investigating powers under Section 156[1] & 157[2] of CrPC collects samples of blood, hair, skin for DNA analysis from suspected offenders or those arrested. It can match these samples against the samples recovered from the crime scene and available in the data bank. This would facilitate in concluding that suspecting persons or habitual offenders are re-indulging into criminality. Therefore deterrent punishment has to be awarded to restrict this menace. If it does not match then either the person is a first time offender or he has always succeeded in evading arrest at the hands of enforcement agencies. It can be incorporated into the normal process of appealing against a guilty verdict.

he govt. to look at its policies, laws, flaws in the functioning of the enforcement agencies, mistakes made in the investigation, search, gathering and corroborating of material evidence. Statistics in USA reveals that since 1973, some 90 death row inmates had been exonerated by discovery of new evidence, just hours before the scheduled executions.[1] This technology is one of the basis for convincing the govt. to abolish death penalty. State cannot give life to an individual who has been falsely implicated and eliminated, [2]therefore it is more appropriate to award life imprisonment.

In India the use of science and technology in administration of justice is still at a preliminary stage. We are constituting forensic laboratories equipped with modern sophisticated techniques to conduct DNA analysis as well as to set up DNA data banks where information related to criminals, suspected offenders can be stored. This would facilitate and speedup up the work of the investigative agencies. Further classification can be made in storing the data according to the nature of the offence and the type of offence.In future whenever crime is committed forensic scientist and investigative agencies can analyze the evidence and compare it with the profiles in the data banks.

In sexual offences or homicide cases enforcement agencies heavily relies on DNA samples to ascertain the identity of the offender and the causes of death or assault. In such offences FIR is usually launched after a time gap. Medical examination may or may not be conducted, if conducted it is after a delay resulting in depleting the evidence and giving option of doubt and addition of colored version. Material evidence are forwarded to the forensic laboratory after sufficient delay. So, by using this technology evidence can be gathered, analysed and compared with the DNA fingerprint of the offender charged or suspected or any other male member of the family whose credentials can be doubted. The chances of the abuser taking advantage of the flaws in law can be depleted. Burden of the investigative agencies would be decreased as the identity of the offender is sufficiently proved. Enforcement agencies are playing a pivotal role aided with scientific technology to usher in a new era where both function in harmony with the administration of justice.

Aided with strong scientific evidence the investigating officer can alter the conclusions otherwise derived. If samples of blood and body fluid are meticulously protected in forensic laboratories, then DNA database would work effectively. Innumerable trials where guilt and innocence was hotly contested but not airtight, they would have benefited from DNA analysis either to prove the guilt or establish the innocence.[1]

However use of science and technology has its own inherent Advantages and disadvantages. DNA fingerprinting analysis only provides the 'proof of identity' and not the 'proof of guilt' outrightly. It has to be closely monitored, contrasted and corroborated with other evidence to conclude that the person identified is the only person guilty of the commission of offence. DNA technology suffers from certain inherent defects.

It usually depends on the quantity of samples taken and analyzed. The sample must match beyond reasonable doubt. In OJ SIMPSONS trial if DNA was fool proof then he would have been convicted but he wasn't. Further storing of DNA profile in data banks for future references has resulted in many ethical questions being raised. These are posing a threat to the use and development of this technology. Whenever forensic scientist are utilizing markers like ABO blood groups or any protein system for investigation then information gathered out of such test is limited and confined to that particular marker only[1] but when a DNA sample of an individual is available then an expert has an access to all genetic secrets of that individual.[2] Even though requisite technology is not yet available to gather all this information but potentiality of its use or misuse in future cannot be ruled out.

DNA left at the crime scene can also be affected by environmental factors like heat, sunlight, moisture and bacteria. Therefore not all DNA evidence will result in usable DNA profile.[1] DNA testing cannot tell the investigating officers : when the suspect was at the crime scene? or for how long ? Further access to such tests & legal services would be an insurmountable bar for the poor and less privileged in India.

The most controversial issue in DNA databases for law enforcement’s use in criminal investigation is question of coverage. Whose DNA profile should be stored in those databases.The range of possible coverage extends from convicted violent sex offenders, convicted homicides, to everyone arrested, to the entire population.[1]

Investigative and Law Enforcement Agencies

The law enforcement agencies constituting of the Center State police has been vested with the investigative powers under Sections 154-176 of Criminal Procedure Code. Under Section 174 the police officer in charge of a police station or any other police officer specially authorized by the state govt., receives an information that a person has committed suicide or has been killed by another person or by an animal or by machinery or by accident or has died under circumstances giving a reasonable suspicion that some other person has committed an offence, he should immediately intimate to the nearest executive magistrate in power to hold inquest. He will then proceed to the place where the offence has been committed and the body of the deceased person in the presence of two respectable inhabitants of the area, he will make an investigation and draw a report of the apparent cause of death. He is required to describe such wounds,fractures, bruises and other marks of injury found on the body and also to state in what manner, by what weapon or instrument such marks appear to be inflicted.

Where investigation involves death of a women or suicide under mysterious circumstances, he is required to forward the body to the nearest civil surgeon without risk of putrefaction on the road as would render examination useless. He can search for material evidence and seize anything recovered. While exercising the powers conferred on him he can take the assistance of experts to conclude his investigation that the person accused has committed an offence.The Code empowers the District Magistrate,Sub-Divisional Magistrate and any Executive Magistrate to hold an enquiry.

Under Section 176 of CrPC the Magistrate is empowered to conduct an enquiry into the cause of death of a person in custody. He can make an examination of the dead body of any person who has been already interred in order to discover the cause of death.

Under Section 156 of the CrPC, any police officer without the orders of the Magistrate can investigate any cognizable case within the limits of his police station. No proceedings of a police officer can be called in question on the basis that the officer was not authorized to investigate. The investigative agencies are relying on these provisions to conduct investigation and to gather evidence to prove guilt of the accused beyond doubt.

Both law enforcing investigators and forensic scientist have a common goal that is detecting crime and solving the mysteries of crime. Investigative agencies are primarily relying upon set procedures and outdated techniques. Assistance of forensic science is taken only in exceptional or marginal number of cases as we do not have sufficient forensic laboratories in our country.

However if forensic scientist assist the investigative agencies at the scene of crime then they can lift the veil and unfold the truth. It would also help and facilitate the investigative agency in reconstruction of the sequence of the event, modus operandi of the criminal, motive of crime, knowledge about the victim and offender and methodology employed to collect evidence against the offender to bring him within the purview of law.

Forensic Laboratories

Forensic science serves as an integral component of criminal justice system. It is now well established that forensic laboratories are doing highly specialized and sophisticated analytical work. In India well equipped forensic laboratories are functioning at Mumbai, Kolkata, Delhi, Chennai, Hyderabad.

These forensic laboratories undertake diverse laboratory examination of physical evidence materials and there from provides reliable and irrefutable circumstantial evidence and strengthen the links in the chain of evidence to detect the guilty.[1] They help in the investigation of crime through scientific guidance by experts visiting the scene of major crimes. Necessary scientific training must be imparted to the investigating officers to create scientific awareness and use of scientific aids. The purpose of forensic science is to identify a material and then to compare it with the sample to establish the similarity of crime.

Biology and serology divisions engaged in examination of stains of blood,semen, saliva, hair, human and animal tissues to link the accused with the crime of homicide assault, rape. The blood group systems are genetically determined. DNA fingerprinting of biological materials has lead to individualization.[1] If DNA fingerprints are identical then identity is proved undoubtedly.

However gene frequencies must be established to provide a base for interpretation of findings. Methodological guidelines must be defined to ensure authenticity of results. Forensic scientists can advice on possible inconsistencies between the apparent death scene and the actual scientific findings so that appropriate conclusions can be drawn.

DNA analysis raises two major questions in post conviction cases thereby emphasizing the fact that DNA samples must be collected before the charges are framed rather than afterwards. This would allow the entire evidence to be reviewed and the criminal justice system with the aid of science and technology can overcome the existing problems. Questions raised are :

- Whether the system is receptive to evidence that it failed to provide justice in a particular case or cases.

- Whether those cases reflect the defective methodology/process, in the criminal justice system.

Suggestions :

Law enforcement agencies have a long way to go.They have not only to employ the technology for identification but also to ensure the right to privacy of the individual by safeguarding their genetic confidentiality.Cure lies in better justice delivery and policing - promoting equality, transparency, probity and social solidarity. Laws have to be framed by the center and state governments with the assistance of the enforcement agencies in such a manner that MISUSE of DNA technology can be restricted. Currently in India we do not have such laws since technology itself has just started growing but we definitely have to evolve rules and regulations on the footsteps of other nations which have constituted DNA Identification Acts.

DNA samples must be analyzed before the charges are framed as it would help in determining the relevancy of proceedings resulting in initiating a trial against the accused.

Due to use of DNA technology in future investigation of offences, it is less likely that innocent persons will be convicted. Investigative agency should be assisted by forensic scientist at the scene of crime. This would lead to reducing doubts regarding the credibility of enforcement agencies, less chances of depleting of evidence and speedy justice would be ensured.

There is a need to impart scientific training to the investigative officers to create necessary scientific awareness and to develop potential for optimal use of scientific aids within and beyond the laboratory.

Law enforcement agencies depend on the forensic sciences for gathering evidence. So in order to ensure fool proof evidence we require forensic laboratories with adequate, latest equipment, highly trained personnel, well kept critical records, maintenance of logs, organized laboratory manuals and documentation of specimens handled.

Not only do we require well equipped forensic laboratories but they should be widespread that is there is a need to set up a chain of full fledged forensic laboratories in India at Central, State and Regional level for rendering immediate scientific aids in timely detection of crime before the loss of valuable evidence.

DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant evidence. For example: if someone sneezes or coughs over the evidence. So, necessary precautions have to be taken to prevent contamination.

Proper collection, preservation, transportation and storage are pre-requisites. For example DNA sample should not be kept in plastic bags as these retain damaging moisture.

Though the specialized forensic scientist who handles the DNA profiles and the investigative agencies are separate entities, but they need to work in proper co-ordination and co-operate with each other to nab the offender. Both need to understand the role and importance of one another. Enforcement agencies must include forensic scientists within the set up, to trace the evidence left by offenders.

To deploy DNA test responsibly the commission need to think how to standardize ?, how to validate the information they produce ?, how to access new and emerging methodology? How to put forward well defined methodology? and how to communicate the judgement about these issues in form of policy.

Thus in context to Indian scenario where DNA technique is still in infancy stage following five core areas need to be addressed :

- Research and development

- Post conviction issues

- Crime scene investigation

- Legal issue {admissibility and post conviction relief}

- Laboratory funding {cost of database logs}

In the nutshell, DNA in Criminal Justice System has two-fold aspects -

1) To identify the criminal and

2) To exonerate the wrongly convicted.

Criminal Justice System with the backup of DNA technology can be an effective deterrent for future offenders. We have to evaluate the values of the society, how a society might be and should be reshaped by the technology in a positive manner and how technology should be shaped/adapted by our society to ensure a healthy, free from crime environment.

"The challenge is to learn how to govern, rather than be governed by the power of DNA"

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