EVIDENTIARY VALUE OF DNA TEST

By:
ASHIFA ASHRAF
Advocate High Court
LL.M., M.A., DIPL

"When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence."[1]

Introduction

Deoxyribonucleic acid is commonly known as DNA that contains the genetic instructions used in the development and functioning of all known living organisms. The main role of DNA molecules is the long term storage of information. DNA found in the nucleus of the cell is termed "nuclear DNA". Touted as the most significant analytical tool introduced into forensic science since fingerprinting, DNA typing of biological evidence has far exceeded expectation. The scientific evidence has a highly technical basis that requires an expert witness with specialized knowledge to assist the trier of fact to better understand it. [2] At the outset of the study it is worth nothing that to give expert evidence is not law but subject to the exception, which are enacted in this set of Articles, [3] where the evidence of a witness's opinion is either inevitable or desirable. It is inevitable where it is not reasonably practicable for the witness to separate the observe facts from the inferences that the witness draws from the facts. Expert evidence is desirable where it consists of inferences to be drawn in relation to some matter involving special skill or knowledge which is outside the normal experience and competence. In such cases a Court needs expert help in order for the Court to discharge its duty of fair and accurate fact finding. [4]

Expert Evidence

The general rule at common law regarding expert opinion is concisely stated in Cross and Tapper[5] "A witness may not give his opinion on matters which the Court considers call for the special skill or knowledge of an expert unless he is an expert in such matters".

Matters Which the Court Considers Call for the Special Skill or

Knowledge of and Expert: the Helpfulness Test

It is a decision for the trial judge in each case whether the issue on which a party proposes to adduce expert evidence is one that requires such a degree of skill and knowledge as to be outside the experience of the Court. An influential statement of the principle that the admissibility of expert opinion is founded on necessity was given by Lawton L.J. in Turneer:

"An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary." [6]

Reliability of Expert Evidence

In United States the response to this problem was for many years the "general acceptance" test set out in Fry v. United States. [7]

"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognised, and while the Courts will go a long way in admitting expert testimony deduced from a well-recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belong."

In Daubert v. Merrell Dow Pharmaceuticals Inc.[8] the Supreme Court of United States held that the Fry Test had not survived the adoption of the Federal Rules of Evidence. Finally in a landmark 1993 decision, the U.S. Supreme Court unanimously rejected the Fry Test as a basis for determining the admissibility of scientific expert testimony. The Court established a new standard based on the relevancy test and Federal Rule 702, which became known as the Daubert Standard.

DNA V. Eyewitness

That the DNA profiling is better than eyewitness accounts even, was proved beyond doubt in a rape cases, paternity issues and also in other multiple cases.

DNA Profiling Clue Material

DNA is found in every living cell of our bodies and can, therefore, be extracted from a whole variety of different materials, some of them is given below:

• Blood and blood stains

• Semen and semen stain

• Saliva

• Bone marrow

• Hairand hair roots

The purpose behind the taking of many samples is to enable the process of DNA profiling. Very basically, this involves an analysis of the sample taken from the suspect (the first sample), an analysis of samples taken from the crime scene or victim (the second sample) and then a comparison of the two. The methods used routinely for human identity testing include restriction fragment length polymorphism (RFLR).

Identification

There are three key ways to prove a person's involvement in a criminal offence:

• Witnesses

• Confession

• Scientific evidence (DNA test).

The last of these becoming more and more important in criminal evidence. The analysis of intimate and non-intimate samples may provide essential evidence in showing or refuting a person's involvement in an offence. However, the Courts have made it clear that DNA evidence alone will not be sufficient for a conviction and that there needs to be other supporting evidence to link the suspect to the crime scene at the time of the offence, that the suspect lived in the locality or had connections in the area. In the case of Denis Adams (No.1), in the course of giving judgment, said[9]

"There is, however, nothing inherent in the nature of DNA evidence which makes it inadmissible in itself or which justifies a special, unique rule, that evidence falling into such a category cannot found a conviction in the absence of other evidence."

Intimate and Non-Intimate Sample Defined

In Britain, Sec. 65(2) of the Police and Criminal Evidence Act 1984 provides the definition of intimate and non-intimate samples and states:

……'intimate sample' means --

(a) A sample of blood, semen or any other tissue fluid, urine or public hair;

(b) A dental impression;

…… 'non-intimate sample' means --

(a) Sample of hair other than pubic hair [and includes hair plucked from the root];

(b) A sample taken from a nail or from under a nail;

(d) Saliva

(e) A footprint or a similar impression of any part of a person's body other than a part of his hand;

Consent while taking DNA sample

Police can take the intimate and non-intimate sample,[10] but not without consent. Taking a sample without consent may amount to inhuman treatment. [11] Where a suspect refuses, without good cause, to provide an intimate sample, the Court may draw inferences against him. Article 20(3), Constitution of India deals with accused's immunity from being compelled to be a witness against himself. High Court of Andhra Pradesh and the High Court of Karnataka respectively held in Mallela Suryanarayana v. Vijaya Commerical Bank Ltd., and Gangadharappa v. Basuvaraj that, It would not, therefore, extend to parties and witnesses in Civil proceedings or proceedings other than Criminal. [12]

Use of Force

Force may be used if necessary to obtain non-intimate sample on the circumstances described. [13] In People v. Jones, the appellate Court found that a DNA statute requiring collection of a DNA sample from convicted felons was not unconstitutional. [14]In Ashe v. Garrison, defendant contended that collect a DNA sample from him so as to violate his Constitutional rights, Fourth Amendment protections against search and seizures. The Court upheld precedent enforcement to obtain a DNA sample from an incarcerated convicted felon, stating the interests of the Government in preserving a permanent identification record of convicted felons for resolving past and future crimes outweigh the minor intrusion of blood samples. [15] In India S. 53 of Cr.P.C. describe the rule of compellability. In a case of Sharda v. Dharmpal [2003] 4 SCC 493, It is the implied power of a Court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one's right of privacy. If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be make out

Establishment of Paternity through DNA test

A paternity test will tell you if a man is or is not the biological father of a child. This includes the testing of the alleged father and the child.

"Justice Ali Akbar Qureshi of the Lahore High Court has held that to determine the parentage of a child DNA test is not required and the evidence of mother is sufficient. Justice Qureshi held this while dismissing a petition of Muhammad Bakhsh seeking order for conducting DNA test of his wife and her three alleged paramours. The Judge observed: according to Islamic laws edited by Dr. Tanzeel-ur-Rehman, evidence of woman would be sufficient to prove the parentage of a child. The judge in his order also quoted a reported case of Supreme Court Mst. Hamida Begum v. Mst. Murad Begum[16] wherein the Court had held that to establish the legitimacy of the child evidence of mother and the child is sufficient".[17]

In a case Syed Mohd Ghouse v. Noorunnisa Begum, it was held that Court cannot compel the father to submit himself to DNA test. [18] In this paper the researcher will also discuss another piece of genetic material found within the cell, but outside the nucleus- mitochondrial DNA (mDNA).

Mitochondrial DNA

Mitochondrial DNA (mDNA) is an exciting and important new development in forensic technology. [19] Compared with traditional nuclear DNA (nDNA) analysis, the forensic application of mtDNA typing is basically similar to nuclear DNA and is nothing more than a pattern comparision. mtDNA offers three primary benefits. [20] First, its structure and location in the cell make mtDNA more stable, enabling investigators to test old or degraded samples. Second, mtDNA is available in larger quantities per cell, enabling the testing of smaller samples. [21] Finally, and perhaps most importantly, mtDNA can be extracted from samples in which nDNA cannot, specifically bone fragments and hair shafts. [22]

Evidentiary value of mDNA and nDNA

At the same time, however, the evidentiary weight of mtDNA is not equivalent to that of nDNA. While the laboratory techniques involved in analyzing the two types of DNA nearly identical, their probative values are quite different. When such additional inculpatory evidence does not exist, Courts could justifiably decide that the mtDNA evidence, standing alone, is insufficient for conviction.[23] D.N.A. test helpful in establishing the paternity of the child, [24] hence, DNA test is almost conclusive proof of one's identity. [25] Same was held in Sajeera v. P.K. Salim [2000 Cri.L.J 1208 Kerala High Court]. In the case of Azhar Amin v. The State, in which inter alia it was held where contradiction exists between medical report and ocular, testimony, in case conflict between the testimonies, medical report would be preferred. [26] In Steven Shepherd v. The Queen[27] Court found the mtDNA Evidence with the corroboration of other evidence, admissible and upheld the conviction. There are difficult questions relating to the likelihood of two persons sharing the same DNA. [28] State v. Stills[29] the Supreme Court of New Mexico evaluated an appeal from defendant who claimed that DNA results were inadmissible. The Court considered whether polymerase chain reaction (PCR) was an admissible method of DNA analysis. This Court found that the trial Court did not abuse its discretion in admitting DNA evidence under the PCR technique. This case established evidentiary reliability as the test in New Mexico for the admissibility of scientific knowledge such as DNA.

Haddod Cases

Evidentiary value of the DNA Test was acceptable but not in a case falling under the Penal provisions of Zina punishable under Hudood Laws having its own standard of proof. [30]

Conclusion

Currently in Pakistan there is no specific statute dealing with the DNA testing while on the other hand we can find such provisions in Britain and American legislation. In this regard in our law, we can simply rely on the expert evidence provision in the Qanun-e-Shahad. There are many issues presented at trial that involve scientific knowledge, or are so complicated or beyond the common knowledge of the judiciary that someone with special skill or education is required to help the judges understand the evidence or matter in issue. The correct identification of criminals and other individuals have always been one of the most important problems in criminal and civil investigations. The DNA profiling is applicable to virtually all the body materials. The technology is hardly two decades old. It is hoped that the ongoing research will bring down both time consumption and expense in the DNA profiling technology.

Mitochondrial DNA promises to be a powerful new forensic tool for identifying offenders and obtaining more accurate convictions. To insure DNA's proper use, however, judges will need to remain vigilant as with any scientific evidence. The Court's role as gatekeeper requires that it determine not only that DNA analysis is based on reliable principles and procedures, but also determine this reliability and to assess the validity of the proffered expert testimony. Finally, I would like to draw the attention of the legislature about the importance of DNA test with respect to civil and criminal litigation.

In Pakistan the first DNA laboratory has been established by the National Police Bureau under its National Science Forensic Programe (NFSP) with the help of China to investigate complicated terrorism and criminal cases. The Government of China provided the technology and equipment for the laboratory. It has facilities for testing cases related to microbiology, ballistic and explosive, chemical examination and toxicology. In recent years, the scientific advances have served to stimulate a greater public awareness and use of DNA evidence in civil and criminal proceedings, the Institute of Forensic Sciences, Ministry of Public Security of China has trained two of Pakistani scientists in the latest DNA technology.

[1] Fry v. United States, 293 F.1013 (D.C. Cir.1923)

[2] Law of Evidence by Thomas Buckles, P.270

[3] Art.59-65, Principles & Digest of the Qanun-e-Shahadat by Khalil-urRehman, PLD Publishers.At.P. 927

[4] I.H Dennis, The Law of Evidence, London (Sweet & Maxwell 1999), At P.654

[5] Ibid at P.543, citing Sherrad v. Jacob [1965] N.I. 151

[6] [1975] Q.B. 834 at 841, CA.

[9] At P. 470 (1996) 2 Cr.ApP.R.467.

[10] S. 62 of police and criminal Evidence Act 1984(PACE)

[11] Art. 3 of the European Convention on Human Rights

[12] AIR 1 986 AP 756 and AIR 1996 Karnataka 155

[13] PACE 1984, Code D, Para.5.6

[14] 873 N.E.2d 562 (III. ApP. Ct. 2007)

[15] 2008 U.S. Dist. LEXIS 36720 (D.S.C. 2008)

[17] The Nation, September 2, 2008.

[19] The first use of mtDNA in a criminal case was in 1996 in Tennessee.

[20] mtDNA Evidence in State v. Pappas, 43 Jurimetrics J. 427, 428-31 (2003) (discussing the admissibility of mtDNA in Court, the scientific principles underlying it, and the laboratory procedures involved)

[21] State v. Council, 515 S.E.2d 508, 516 & n.12 (S.C. 1999)

[22] United v. Coleman, 202F. SpP. 2d 962, 965 (E.D. Mo. 2002) observing that bone and hair shafts can be tested for mtDNA

[23] See Margaret A. Berger, Expert Testimony in Criminal Proceedings, 33 SETON HALL L. REV. At 1136

[24] Tariq Masih v. Station House Officer, 2006 Per. LJ 13

[25] Muhammad Aslarn Khan v. The State. [2008] P.Cr.LJ 1623

[28] Baldwin and Donnelly, "The Prosecutor's Fallacy and DNA Evidence" [1994] Crim. L.R. 711

[30] Muhammad Azhar v. The State, PLD 2005 LHR 589