Controversial Technology

Controversial Issues Involving Technology

Abstract

The scientific progression of DNA profiling, DNA typing, and DNA testing in the past 60 years has markedly changed the role of forensic science in crime control. The use of DNA in forensic science has created a hotly contested conversation regarding the role of science in criminal justice, the validity of science in law, and the right to privacy. This paper will explore the history of both DNA profiling in both the scientific community and forensic science, it will explore the validity of the role of DNA science in law, and it will evaluate the benefits and consequences of DNA profiling on individual privacy and the impact to crime management.

The history of DNA profiling is traced back to both the continued scientific understanding of DNA and the understanding of science as “fact” in law. Not only do we need to understand the progression of DNA in science, but we also need to understand when science found a place in law, specifically forensics. In order to better understand the benefits and effects of DNA profiling you must recognize both how DNA has evolved in science and where it began to find its place in law. After understanding these two pieces of information we can then look into how it’s made an impact in the world of crime management.

Though the double helix structure was discovered by James Watson in the 21st century, the history of DNA can be traced back to Gregor Mendel. In 1886 Gregor Mendel published a paper titled, “Experiments in Plant Hybridization” where he found the fundamental laws of inheritance. This was the first claim in science that recognized patterns from one generation to the next (Mendel, 1886). According to Michael Lynch, “it was ignored by the scientific community for another thirty-four years” (Lynch, 2011, p.5). Mendel’s work led to the scientific community’s attention in genes. This attention eventually led to the discovery of the double-helix by Watson in 1962 (Murphy, 2005). The double helix gives a format for what the previous knowledge science had developed about the cell.

We understand DNA as follows: Both strands of double-stranded DNA store the same biological information. This information is replicated as and when the two strands separate. A large part of DNA (more than 98% for humans) is non-coding, meaning that these sections do not serve as patterns for protein sequences…RNA strands are created using DNA strands as a template in a process called transcription. Under the genetic code, these RNA strands specify the sequence of amino acids within proteins in a process called translation (2019).

DNA research and the work of the double helix structure and research on DNA and RNA leads us to the understanding that the human body contains a particularly sequence of codining. This coding lives in the cells of our body. The double helix structure is the backbone of the genetic information. This genetic information lives inside our cells.

Though the fields of science and law are academically divided, the use of science in law is a result of our criminal justice system being built upon “facts.” The discovery of the double helix and work in DNA led to a scientific understanding that DNA is objective fact. Therefore, the criminal justice system began to move away from differing unsubstantiated accounts and moved in the direction of fact based evidence. H.L. Ho summarizes this relationship as follows:

A distinctive feature of contemporary legal adjudication is its fact-orientation. It is true that disputes in court may not be over facts and often are not; sometimes, cases are argued at first instance on ‘agreed facts’, and appeal judges deal mainly with questions of law. But, even where the facts are not contested, they are incorporated into the justification for the court’s decision. Factual generalizations are embedded in legal rules. Consequently, the adjudication of every dispute under a legal rule is based on what are believed to be, or taken as, the facts of the case. (Ho, 2010, p.2)

Though not all court hearings will be predicated on “facts” it is true that “facts” are undoubtedly incorporated into a court’s decision on a hearing. The use of forensic science in law begins with this concept of “fact” based court systems. The scientific discoveries in DNA profiling add legitimacy to forensic evidence. Williams says of the development of DNA in law, “The most significant development in the crime control field is not the transformation of criminal justice institutions but rather the development, alongside these institutions, of a quite different way of regulating crime and criminals” (Williams & Johnson, 2013).

Now that we have acknowledged the relationship between DNA science and law, we may begin to understand how DNA profiling plays a role in crime management. The role of DNA and forensic science is understood as a combination of technical, legislative, and organizational changes that have underpinned this development (Williams & Johnson, 2017). In order for DNA to enter the space of crime management it needed to be discovered by science (technical), be legal to pursue (legislative) and organizationally function at the government level (database).

The organizational development of National DNA Database (NDNAD) which has a large collection of DNA profiles obtained from the analysis of tissue samples owned by the Chief Officers of the individual forces who provided the samples (Watson, 2017). Watson explains where the database originated:

Established 10 April 1995 as the first of its kind. Until 2005 the database was managed on behalf of the Association of Chief Police Officers (ACPO) by the Forensic Science Service (FSS), an executive agency of the Home Office. Following the establishment of the FSS as a Government Company (GovCo) in that year, custodianship of the database was relocated within the Home Office Forensic Science and Pathology Unit (Watson, 2017).

The NDNAD originated and is maintained in the United Kingdom but the United States piloted a similar structure in 1990 (Murphy, 2005). The United States created the Combined DNA Index Systems (CODIS). This structure allows links to be established between crime scenes and subject profiles. Law enforcement officers are allowed to detect DNA data both involuntarily and voluntarily. Watson describes how links are established as follows:

You can establish links between crime scene and subject profiles in four different ways: a new subject profile may match a pre-existing crime scene profile… a new crime scene profile may match an already recorded individual subject profile...there may be a match between a new and previously loaded crime scene profile, or there may be a match between a new subject profile and a previously held subject profile (Watson, 2017, p.5)

DNA in forensic science was once questioned by the community but has been accepted with recent scientific advancements. According to Lazer, “Today DNA technology is no longer on trial; in fact, it has now been rather neatly integrated into the courtroom” (Lazer, 2014, p.7). Understanding the relationship between science and law is best described by Williams and Johnson as follows:

From our point of view it is neither desirable nor practical to see the development of this complex assemblage in terms of either the linear implementation of some over-arching ideological set of ambitions or as the outcome of a stochastic series of events. Rather, we would propose that the development of the NDNAD has been generated somewhere between these two poles: as scientific potential which has been developed in accordance with specific state interested but which, because of its inculcation with such interests, has itself prospered and grown in other contexts…it would be misleading to overstress the notion of a ‘governmental drive’ which simply steers the development and implementation of such innovations” (Williams & Johnson, 2014).

To summarize, Williams and Johnson suggested that all of these entities work in collaboration in order to give us the results that we are seeing today. The technologies in DNA that are created by science are not simply neutral—there can be incentives for businesses to create and develop new technology. But the developments and use of what is being discovered is a relationship between the need of crime control and the new discoveries in science. Now that we have recognized the relationship between DNA and crime control, we can now determine the controversial issues that DNA creates in crime control. Particularly, we will study the legitimacy of forensic science in law and the benefits and consequences of DNA in forensic science.

The positive role of DNA in forensic science are well known. DNA testing has led to the “apprehension and conviction of some of the nation’s most dangerous repeat offenders, including serial attackers identified through DNA testing long after the trail from their victims have gone cold” (Murphy, 2005). DNA not only provides a more objective methodology for determining fact, it also allows for a “bio-surveillance” that allows for improved crime control. This “bio-surveillance” is made possible by a network that is collected at crime scenes through DNA samples. Crime scene samples are collected wherever potential biological material relevant to an investigation is identified at a crime scene by police scientific support staff or by external specialist crime scene examiners. The police are empowered to collect biological samples for the construction of subject profiles from individuals under a wide variety of circumstances and from different ‘categories’’ of individuals. (Williams, 2013, p.2) The new DNA network in place and housed in the CODIS has allowed for over 300 exonerations and also allows for us to predict future crimes. The network not only allows new evidence (by linking connections) but it also allows for trends to be identified.

It is undoubtedly true that the advancement of DNA evidence has led to a more objective approach to crime, the ability to connect more criminals to more crimes, and the ability to exonerate people who were innocent. As Murphy writes:

Forensic DNA testing has been hailed as a significant game changer. It has led to over three hundred exonerations, including for over twenty innocent men sentenced to death. DNA testing has also resulted in the apprehension and conviction of some of the nation’s most dangerous repeat offenders, including serial attackers identified through DNA testing long after the trail from their victims has gone cold. And finally, by offering the criminal justice system a way of providing identity with degrees of certainty, DNA analysis has closed innumerable cases that otherwise might have gone unsolved” (Murphy, 2014, ix).

In November of 2004 California voters approved Proposition 69, the “DNA Fingerprint, Unsolved Crime, and Innocence Protection Act” (2019) which leads one to surmise that the use of DNA in forensics is a widely accepted method. The proposition is comprehensive, but the following is significant:

(b) There is a critical and urgent need to provide law enforcement officers and agencies with the latest scientific technology available for accurately and expeditiously identifying, apprehending, arresting, and convicting criminal offenders and exonerating persons wrongly suspected or accused of a crime.

(d) Expanding the statewide DNA Database and Data Bank Program is:

(1) The most reasonable and certain means to accomplish effective crime solving in California, to aid in the identification of missing and unidentified persons, and to exonerate persons wrongly suspected or accused of crime;

(2) the most reasonable and certain means to solve crime as effectively as other states which have found that the majority of violent criminals have nonviolent criminal prior convictions, and that the majority of cold hits and criminal investigation links are missed if a DNA database or data bank is limited only to violent crimes (2019).

This proposition emphasizes two different areas of public opinion— that some believe the existing DNA database is insufficient and that the DNA database is the most reasonable and certain means to accomplish effective crime solving. This proposition further suggests that DNA sampling should occur for both violent and nonviolent crimes. This poses a compelling viewpoint because the arguments against DNA use typically center around the invasion of individual privacy and overreaching police authority. The passing of this proposition would lead one to believe those concerns are not held by the majority of voters in the state of California.

This new connection between DNA forensics and crime control has many benefits. However, there are still concerning debates that are occurring in this space. The two major concerns with DNA testing is: the accuracy of DNA testing (and concerns it is seen as objective truth) and the right to individual privacy. We see in Proposition 69 above, the majority of California voters believe the benefits of DNA science far out way any negatives. However, there are still some scholars that provide a sufficient amount of arguments.

We will look into those now. We know that over 300 innocent people have been exonerated by DNA profiling. We also know that many serial killers have been caught based on the network contained in the CODIS. The two major concerns with DNA profiling come down to: the integrity and legitimacy of the DNA data and the right to individual privacy. These two concerns can be understood by the administrative and organizational issues that come with the CODIS, the concern of police authoritative control, and the many differences between forensics and academic high science.

The biggest challenge with DNA forensics in crime control is that the science used in forensics is much less demanding than academic science. The samples have a much higher opportunity for contamination since they are collected at a crime scene. Erin Murphy explains this in Inside the Cell by saying, “In support of Saks & Koehler’s view, it can be said that, notwithstanding dramatic portrayals in currently popular television shows, forensic science has long held secondary, and even dubious, standing when compared with ‘high’ science” (2005).

In a forensic lab there is a high standard of control when reviewing samples. There are specific standards that could exclude any particular sample from being used in an experiment. By collecting DNA information from a crime scene we are very likely to experience cross contamination. Further, the level of rigor behind the forensic science team is nothing compared to that of academic science. There are funding concerns which means that the equipment and technology is not as advanced as the equipment and technology in a research lab. This is very possibly why Proposition 69 was voter approved. Proposition 69 specifically requires advanced technology—the public recognizes that the funding for forensics is not enough. Forensics science has provided us a level of trust and authority when used in a court of law. However, because this gives us more certainty in our ruling, it has the potential to lend to harsher punishments. If the forensic evidence if cross-contaminated, you are in jeopardy of a wrongful ruling. Murphy recalls this problem in Inside the Cell:

The field of hair analysis has likewise come under close scrutiny, causing the FBI to announce an unprecedented attempt to reexamine the hair evidence in over 2,500 cases in order to check for errors. Review of just the first 160 cases showed so many major problems that the process temporarily ground to a halt. By the time investigators finished 342 cases, they concluded that the FBI examiners offered inaccurate and unsupported testimony in 257 of 268 trials--95 percent of the cases, including in 32 death penalty cases. (Murphy, 2005, p.5)

This does not mean to suggest that DNA is a bad addition to forensic science. This does, however, reveal the need to appropriately fund the CODIS, which the California voters also seem to agree on. The right of privacy still remains a question. Though there is not much clear research on the issue of privacy and DNA, there is an overwhelming issue with the public being concerned about authoritative control. According to the law, law enforcement can collect samples at any crime scene voluntarily and involuntarily. Proposition 69 also states, “the most reasonable and certain means to solve crime as effectively as other states which have found that the majority of violent criminals have nonviolent criminal prior convictions, and that the majority of cold hits and criminal investigation links are missed if a DNA database or data bank is limited only to violent crimes” (2019). This would suggest that the majority of voters in the state of California are less concerned about their individual right to privacy and are more focused on the benefits of using DNA profiling to improve crime prevention.

Lastly, the CODIS is set up at local and national levels and categorized. This means there is a set of checks and regulations that are set up with the DNA data. According to Lazer, “the database files are decoupled from identifying information and the physical sample, both of which are retained at the state or local level” (2014, p.15). The CODIS is set up and categorized in such a way that allows a layer of protection between groups. In order for a local official to get information from the national database, they must submit a request and the request must be approved. This allows for a set of checks and balances in the system. An example of these checks and balances can be found on the “23andMe” website:

We work very hard to protect your information from unauthorized access from law enforcement. However, under certain circumstances, your information may be subject to disclosure pursuant to a judicial or other government subpoena, warrant or order, or in coordination with regulatory authorities. If such a situation arises, we have to comply with valid governmental requests and we will notify the affected individual(s) unless the legal request prevents us from doing so.

After reviewing the history of DNA research in science, the progression of forensics in law, and finally the history of DNA profiling in forensics and crime control and weighing the benefits and consequences of this research, we can draw some conclusions. Though DNA research academically has a demanding and objective truth. The forensics groups are underfunded and do not contain the technology and DNA required to produce evidence with the level of certainty that is needed. As it’s related to privacy, the current system of checks and balances seems to be protecting and the general public appears to prefer the benefits over the consequences. As Lazer summarizes, “One attorney...had a position that thousands of innocent people are in jail because of DNA typing. That same attorney has this position--thousands of innocent people are in jail because of no DNA typing” (2014).

References

Bell, S. (2008). Crime and circumstance investigating the history of forensic science. Westport (Conn.): Praeger.

DNA. (2019, June 28). Retrieved July 4, 2019, from https://en.wikipedia.org/wiki/DNA

Gregor Mendel (1822-1884): DNA Learning Center. (n.d.).

Ho, H. L. (2010). A philosophy of evidence law: Justice in the search for truth

Retrieved (2019). How 23andMe responds to law enforcement requests for customer information.

Lazer, D. (2014). DNA and the Criminal Justice System The Technology of Justice. Cambridge: MIT Press.

Lynch, M. (2011). Truth machine: The contentious history of DNA fingerprinting. Chicago: University of Chicago Press.

Murphy, E. E. (2005). Inside the cell. Bethesda, Md.. U.S. Dept. of Health and Human Services, National Institutes of Health, National Institute of General Medical Sciences.

Proposition 69 (DNA). (2019, May 28).

WATSON, J. (2017). DNA: The secret of life. S.l.: ARROW BOOKS.