|Year : 2016 | Volume
| Issue : 2 | Page : 102-106
Journey of DNA Evidence in Legal Arena: An Insight on Its Legal Perspective Worldwide and Highlight on Admissibility in India
Ramakant Gupta1, Swati Gupta2, Manju Gupta3
1 Department of Oral and Maxillofacial Surgery, Sudha Rustagi College of Dental Sciences and Research, Faridabad, Haryana, India
2 Department of Oral and Maxillofacial Pathology, Lala Diwan Chand Hospital, Faridabad, Haryana, India
3 Department of Psychology, Dr. Jatinder Gupta's Gupta Clinic and Diagnostics, Faridabad, Haryana, India
|Date of Web Publication||16-Jun-2016|
696, Sector 15-A, Near Vidya Mandir School, Faridabad-121 007, Haryana
Source of Support: None, Conflict of Interest: None
DNA profiling is one of the powerful breakthroughs in forensics. This specialized technique has made the identification of an individual possible even by a tiny shred of tissue or drop of blood thus, has strongly revolutionized various criminal investigations. Rape, paternity, and murder cases are the type of criminal cases commonly solved by the use of this technique. It has been recently introduced to forensic odontology and is also used frequently. Although this is a powerful and reliable scientific technique but its forensic use is a major contribution to the debate on law reform. The application of DNA profiling in the criminal justice system, i.e., the admissibility of DNA evidence in court of law is an important issue which is being faced by the courts and forensic experts worldwide today. Thus, a proper legal outlook is required while dealing with this kind of scientific evidence. Therefore, this review intends to make forensic experts/odontologists aware about the admissibility of DNA evidence in court, with a highlight on the laws related to the admissibility of evidence worldwide, having a special focus on the laws related to admissibility of evidence in Indian judicial system. For this review, the literature was overviewed from articles on DNA evidence and admissibility retrieved by searches on electronic databases such as Google, PubMed, and EMBASE from 1975 through July 2015.
Keywords: Admissibility, DNA evidence, DNA profiling, forensic odontology
|How to cite this article:|
Gupta R, Gupta S, Gupta M. Journey of DNA Evidence in Legal Arena: An Insight on Its Legal Perspective Worldwide and Highlight on Admissibility in India. J Forensic Sci Med 2016;2:102-6
|How to cite this URL:|
Gupta R, Gupta S, Gupta M. Journey of DNA Evidence in Legal Arena: An Insight on Its Legal Perspective Worldwide and Highlight on Admissibility in India. J Forensic Sci Med [serial online] 2016 [cited 2019 Aug 26];2:102-6. Available from: http://www.jfsmonline.com/text.asp?2016/2/2/102/184196
| Introduction|| |
DNA is the genetic code that is found in every cell of an individual's body and is unique to each individual except identical twins.,,, Because of its uniqueness and advances in molecular techniques, DNA analysis has become a very useful forensic tool. A highly sophisticated and scientific technique of DNA analysis also called as DNA typing/profiling/fingerprinting,,, introduced by Sir Alec Jeffrey in 1984,, has revolutionized the field of forensics. The technique involves isolation of selected segments of DNA molecule from suspect and its subsequent comparison with the one derived from a sample of physical evidence collected from crime scene to see whether the two match.,,,,,, DNA analysis has become one of the common forms of evidence in criminal trials, for example, rape/sexual assault, and murders. It is also used in civil litigation, particularly in cases involving the determination of paternity/identity. DNA analysis has been recently introduced in the field of forensic odontology and has greatly enhanced its scope, teeth and saliva being a good source of DNA.,,,,
The technique has been discussed widely  and most of the forensic experts are aware of it. However, the aspect of this DNA evidence which remains obscure for most is its admissibility. The queries which may arise in minds regarding admissibility are: What are the laws governing the admissibility of the evidence? Whether the DNA evidence is admissible in court of laws? What is the scenario of DNA evidence in Indian courts? Other queries regarding DNA analysis may be: Do the police have the right to order the accused to provide a DNA sample for their criminal investigation?
Thus, this review intends to answer all such queries and to discuss the admissibility of DNA evidence in courts including its historical perspective with a highlight on the laws related to the admissibility of evidence worldwide, having a special focus on the laws related to admissibility of evidence in Indian judicial system.
| Method of Literature Search|| |
For this review, articles in English language were identified by searches on electronic databases such as Google, Google Scholar, PubMed, and EMBASE from 1975 through July 2015. The following search terms were used: “DNA fingerprinting in forensic dentistry,” “DNA analysis and admissibility,” “dental pulp and DNA analysis and related laws,” “forensic DNA typing and admissibility,” “admissibility of DNA evidence,” “DNA evidence in courts,” “DNA and admissibility,” and “admissibility of scientific evidence.”
| Results and Discussion|| |
The journey of DNA analysis through the legal arena was started in 1987.,,, Its history of the judicial acceptance can be conveniently divided into two different stages.,,,
This was the initial phase when the DNA typing was introduced to the legal system. DNA evidence during this period was admitted in courts without any criticism.,, The DNA evidence adduced by the prosecution was not at all countered by the defense or disturbed by judges. Judges gave over-reliance to the evidence derived through this technology.
During this phase, the DNA evidence faced critical evaluation. The defense lawyers with the help of scientific literatures, criticized the theory and technique used for DNA identification. Defendants pointed out many problems in the variable number tandem repeat-based restriction fragment length polymorphism analysis.,, Therefore, in this stage, courts evaluated DNA evidence with utmost care and precaution. Courts adopted different standards for the evaluation of DNA evidence.
Scientific acceptance versus legal acceptance
Although DNA profiling is a highly scientific and reliable technique; however, the major issue in admitting the evidence in court is due to its complex nature.,,,, The technique requires a complicated series of scientific procedures, multi-disciplinary approach, and variation in the reliability and degree of acceptance in the scientific community.,,,,
Laws related to admissibility of evidence
The courts in the United States follow three major standards for evaluating the scientific DNA evidence which are:,,,
- The “general-acceptance” test
- “Relevance” test and
- The “Daubert” test.
These tests were adopted and applied by the courts in Canada.,,,, In England, courts are using the “helpfulness” as a standard for evaluating DNA evidence.,,,, An additional standard adopted by the courts in Australia is known as the “prejudicial effect” test., 9, ,,, Under this standard courts will weigh the prejudicial effect of the scientific evidence with its probative value., 9, ,,,
The “general-acceptance” test/Frye test
The “general-acceptance” test was formulated by the District Court of Columbia in Frye v. The United States, 293 F.1013 (D.C. Cir. 1923).,,,,,,,,,, Frye standard mandates that a novel technique must pass through an experimental stage within the scientific community that scrutinizes it.,,,,,,,,,, The technique receives judicial acceptance when it has been tested successfully.
The application of Frye test for DNA typing
For determining the admissibility of novel DNA evidence, the majority of jurisdictions apply this test. It stipulates that to admit a new technique, it must be sufficiently established and have gained general acceptance in the relevant field to which it belongs.,,,,,,,,,, Thus, in the case of DNA typing, the proponent must satisfy the court that both the theory and technique have gained general acceptance among the prominent DNA experts.
For a successful application of the Frye test, three important issues must be dealt with:,,,,,,,,,, first, determination of field to which the DNA technique belongs. Second, what constitutes general acceptance of the DNA theory or technique? Third, what is to be generally accepted - The DNA theory or technique?
Determination of field to which the DNA technique belongs
Selection of appropriate field or fields in which the novel DNA technique belongs is the first and one of the difficult steps in the Frye analysis. One cannot fix the field in which the DNA technique rests because it may vary depending on which aspects of the DNA typing is required for general acceptance and is the issue the court views as going to the admissibility of DNA typing evidence.,,,,,,,,,, The other major problem in determining the field in which DNA technique belongs is that, as a forensic technique, it will be an idiocy to fix some persons prominent in microbiology or biotechnology because forensic scientists need more knowledge than a scientist fully engaged in a research laboratory.,,,,,,,,,,
However, in United States v. Yee ,,,,,,,,,, court has taken a different stand and said, in the scientific community of DNA experts, scientists from molecular biology and population genetics are enough, and they need not be persons having experience in the application of forensic DNA technology.,,,,,,,,,,
What constitutes general acceptance of the DNA theory or technique
The DNA courts did not satisfactorily defined the term “general acceptance.”,,,,,,,,,, Most courts defined it in general terms as widespread, prevalent, extensive though not universal.,,,,,,,,,, However, there appears a general view that a court need not find that there is unanimity or consensus within the scientific community concerning such acceptability. Thus, in United States v. Brown, court stated that absolute unanimity was not required for admission of novel scientific evidence.,,,,,,,,,,
What is to be generally accepted - The DNA theory or technique
There was a difference of opinion among courts regarding the thing to be generally accepted, whether the theory or technique based on that theory.,,,,,,,,,, The New York court clarified this issue in a landmark case People v. Castro.,,,,,,,,,, In this case, court formulated a three-prong test for evaluating the admissibility of DNA evidence.,,,,,,,,,,
- Is there a theory, which is generally accepted in the scientific community, which supports the conclusion that DNA forensic testing can produce reliable results?
- Are there techniques or experiments that currently exist that are capable of producing reliable results in DNA identification and which are generally accepted in the scientific community?
- Did the testing laboratory perform the accepted scientific techniques in analyzing the forensic samples in this particular case?
The “relevance” test
The “relevance” test was laid down by the United States Court of Appeal in Coppolino v. State. 223 Scr. 2d 6E (Fla. App. 1968).,, Court explained that the court's discretion in admitting evidence is wide enough to admit scientific evidence lacking general acceptance of the scientific community.,,
Relevancy test for the admissibility of DNA evidence
Although the majority of courts applied the Frye test for determining the admissibility of the novel DNA evidence, a minority of courts applied a liberal approach known as the relevance approach. This more liberal standard, and the one which courts adopted is based on the relevancy approach of the Uniform Rules of Evidence.,, The pertinent rules are as follows:,,
- Rule 401 provides definition of relevant evidence - “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence ,,
- Rule 402 provides relevant evidence generally admissible - Irrelevant evidence inadmissible - 411, relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this state. Evidence, which is not relevant, is not admissible ,,
- Rule 702 provides testimony by experts - If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.,,
What the relevancy approach requires was that the trial court must conduct a preliminary inquiry which must focus on:,,
- The reliability of the novel process used to generate the evidence
- The possibility that admitting the evidence would overwhelm, confuse or mislead the jury; and
- The connection between the novel process evidence to be offered and the disputed factual issues in the particular case.
The “Daubert” test
The “Daubert” test was laid down by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., (1993) 125 L. Ed. 26. 469.,,,,,,,,,, Court formulated a four-factor test to help the trial judge, in determining the relevance and reliability of scientific evidence:,,,,,,,,,,
- Whether the theory or technique can be or has been tested
- Whether the theory or technique has been subjected to any peer review and publication
- The known or potential error rate of a technique
- Whether the theory or technique has received “general acceptance” in the scientific community.
The application of Daubert test for determining the admissibility of DNA evidence
The Frye test has been “the most prominent and widely accepted test for the determination of the admissibility of DNA evidence from the very initial stage. The application of the Daubert standard for determining the admissibility of DNA evidence made its first appearance in United States v. Martinez ,,,,,,,,,, wherein it was held that the federal rules of evidence supersede the Frye test. However, the court said the abolishing of Frye test does not mean that the rules themselves place no limits on the admissibility of scientific evidence.,,,,,,,,,, Court opined that federal rules of evidence though liberal, but mandate that the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant but also reliable.,,,,,,,,,, Court added, to qualify as scientific knowledge, an inference or assertion must be derived by the scientific method.,,,,,,,,,, The proposed testimony must be supported by appropriate validation, good grounds, based on what is known.,,,,,,,,,, The fact that the court takes judicial notice of the reliability of the technique of DNA profiling does not mean that expert testimony concerning DNA profiling is automatically admissible.
Latest pronouncement regarding admissibility laid by the Canadian Supreme Court
The latest pronouncement regarding the admissibility of scientific evidence was laid down by the Canadian Supreme Court in R v. Mohan ,,,,,,,,,, case and formulated four criteria. They are:
- Necessity in assisting the trier of fact
- The absence of any exclusionary rule and
- A properly qualified expert.
A particular piece of scientific expert evidence must be “helpful” to the trier of fact. If it is helpful, then it is admissible, regardless of whether its theory or technique that forms the basis of the testimony is reliable or the relevant scientific community accepts it. Thus, courts in England have taken a liberal attitude in admitting scientific expert testimony.
It is also the last step in the relevancy analysis is to find out whether the DNA evidence given by an expert is helpful to the judges for determining the issue in a case. If it is helpful, the evidence may be admitted otherwise it will be excluded.
There is a conflict of opinion among courts in the United States regarding the application of standards for evaluating DNA evidence. This conflict can be traced back to the very initial stage of the introduction of DNA evidence. Some courts applied the general acceptance test, whereas others adopted the relevance test.,,
This conflict has not completely resolved even after the final pronouncement of the United States Supreme Court in Daubert case.,, Although the trend in the States appears to be toward the Daubert view, there still are jurisdictions that adhere to Frye test.,,
DNA profiling and Indian Legal System
In India, scientific evidence in courts are dealt under Section 45 of the Indian Evidence Act, 1872.,, Code of Criminal Procedure, (Cr.P.C.) 1973 formulates police duties in arresting offenders, dealing with absconders, in the production of documents, etc., and in investigating offenses.,, However, under both of these, there is a lack of specific legislation which can provide proper guidelines to the investigating agencies and the court about the procedures to be adopted in the cases involving DNA evidence.,, Due to this, investigating officers and forensic experts/odontologists face trouble in collecting evidence involving modern scientific techniques.
Section 53 of Code of Criminal Procedure 1973
It authorizes a police officer to get the assistance of a medical practitioner in good faith for the purpose of the investigation. However, it does not enable a complainant to collect blood, semen, etc., for bringing the criminal charges against the accused.,,
Amendment Act, 2005
The amendment of Cr.P.C. by the Cr.P.C. (amendment) Act, 2005 has brought two new sections which authorize the investigating officer to collect DNA sample from the body of the accused and the victim with the help of a medical practitioner.,, However, the admissibility of these evidence still remains in a state of doubt as the opinion of the Supreme Court, and various High Courts in various decisions remained conflicting. Judges do not deny the scientific accuracy and conclusiveness of DNA testing, but in some cases, they do not admit these evidence on the ground of legal or constitutional prohibition and sometimes the public policy.,,
A proper reevaluation of these sections and law are urgently required, and changes need to be made accordingly since no rule is present in the Indian Evidence Act, 1872, and Cr.P.C., 1973 to manage forensic science and technology issues.
The most important reason that courts sometimes are reluctant in accepting the evidence based on DNA technology according to some is that it imposes a serious challenge to some legal and functional rights of an individual such as “right to privacy”,, and “right against self-incrimination.”,, On these grounds, many times accused also denies to provide a DNA sample for their criminal investigation.
The right to privacy has been included under Right to Life and Personal liberty or Article 21 of the Indian Constitution, and Article 20(3) provides Right against self-incrimination which protects an accused person in criminal cases from providing evidence against him or evidence which can make him guilty.,, However, it has been held by the Supreme Court on several occasions that Right to Life and Personal Liberty is not an absolute Right.,, Thus, police can order the accused to provide a DNA sample for their criminal investigation.
Case examples in India
In Govind Singh v. state of Madhya Pradesh, Supreme Court held that a fundamental right must be subject to restriction on the basis of compelling public interest.
In another case, Khark Singh v. state of utter Pradesh, Supreme Court held that right to privacy is not a guaranteed right under our Constitution.
In N.D. Tiwari case, Rohit Shekhar had claimed to be the biological his son; however, N.D. Tiwari denied undergoing such test and stated that it would be the violation of his right to privacy and would cause him public humiliation. However, Supreme Court rejected this point stating when the result of the test would not be revealed to anyone and it would under a sealed envelope, there is no point of getting humiliated. Further, Supreme Court refused to dismiss the Delhi High court's decision and ordered Congress leader N.D. Tiwari to undergo the DNA test.
In Priyadarshini Mattoo case, the DNA from seminal discharge of the accused which were found on the undergarments of the victim and her private parts were compared with the DNA of the accused and they matched conclusively.
The latest Nirbhaya rape case, the Delhi's most horrifying sexual assault, gang rape, and murder; the forensic and medical evidence including bloodstained clothes of the accused DNA samples matched with that of Nirbhaya's, thus along with other evidences helped solving the case.
Thus, it is clear from various decisions delivered by the Supreme Court from time to time that the Right to Life and Personal Liberty which has been guaranteed under our Indian Constitutions are not absolute ones and can be subject to some restriction.,, Based on this, the constitutionality of the laws affecting Right to Life and Personal Liberty is upheld by the Supreme Court which includes medical examination ,, on the basis which various courts across the country have allowed DNA technology to be used in the investigation and in producing evidence.,,
| Conclusion|| |
DNA evidence is one of the most powerful evidence during criminal trials. It is also a point of attraction for researchers in the scientific community thus, leading to newer advances in technical field. Therefore, the courts worldwide must reevaluate the laws and remain in position to manage such novel evidence properly. As far as Indian judicial system is concerned, it is still in stages of infancy to determine the evidentiary value of the DNA evidence. It lacks proper legislations to manage forensic science issues and to screen evidence involving such a sophisticated and scientific technique. Therefore, it is recommended that appropriate provisions and special law dealing with the evaluation of forensic evidence in the Indian Evidence Act and the Cr.P.C. should be added so that modern technologies can be used effectively.
The authors acknowledge the divine presence and blessings of Late Dr. Jatinder Kumar Gupta and dedicate the whole work to him.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
| References|| |
Datta P, Datta SS. Role of deoxyribonucleic acid technology in forensic dentistry. J Forensic Dent Sci 2012;4:42-6.
Swafford LL. Admissibility of DNA genetic profiling evidence in criminal proceedings: The case for caution. Pepperdine Law Rev 1991;18:123-30.
Fontg R. DNA fingerprinting: A guide to admissibility and use. Missouri Law Rev 1992;57:501-52.
Smith GB, Gordon JA. The admission of DNA evidence in state and federal courts. Fordham Law Rev 1997;65:2465-88.
Altman JD. Admissibility of Forensic DNA Profiling Evidence: A Movement Away from Frye v. United States and a Step Toward the Federal Rules of Evidence: United States v. Jakobetz, 955 F.2d 786 (1992). J Urban Contemp Law 1994;44:211-22.
Thompson W. Evaluating the admissibility of new genetic identification tests: lessons from the “DNA war”. J Crim Law Criminol (1973-) 1993;84:22.
Kaye DH. The admissibility of DNA evidence. Cardozo Law Rev 1991;13:353-60.
Berdan KW. The admissibility of DNA evidence: Minnesota no longer stands alone. William Mitchell Law Rev 1994;20:1064-107.
Pitluck HM. DNA evidence will be admissible if the proper foundation is laid: Advice for a forensic medicine expert. Croat Med J 2001;42:221-4.
Patel N, Gautaman VK, Jangir SS. The role of DNA in criminal investigation – Admissibility in Indian legal system and future perspectives. Int J Humanit Soc Sci Invent 2013;2:15-21.
Moss KL. The admissibility of true allele: A computerized DNA interpretation system. Washington Lee Law Rev 2015;72:1033-76.
Verma SK, Goswami GK. DNA evidence: Current perspective and future challenges in India. Forensic Sci Int 2014;241:183-9.
Umamaheswari D. Medico-legal aspects in the admissibility of scientific evidence. Int J Innov Sci Eng Technol 2014;1:1-5.
Fradella HF, O'Neill L, Fogarty A. The impact of daubert on forensic science. Pepperdine Law Rev 2004;31:323-62.
Raum BA. A short primer on the admissibility of forensic science evidence in Tennessee: A checklist. Tennessee J Law Policy 2014;6:1-28.
Moenssens AA. Admissibility of scientific evidence – An alternative to the frye rule. William Mary Law Rev 1984;25:545-75.
Calhoun MC. Scientific evidence in court: Daubert or frye, 15 years later. Legal Backgrounder 2008;23:1-4.
McLeod AK. Is frye dying or is daubert doomed? Determining the standard of admissibility of scientific evidence in Alabama courts. Alabama Law Rev 2000;51:883-905.
Patton SM. DNA fingerprinting: The castro case. Harvard J Law Technol 1990;3:223-40.
Kantak MP, Ghodkirekar MS, Perni SG. Utility of daubert guidelines in India. JIAFM 2004;26:110-4.