DNA Evidence Introduction and Historical Perspective

Man by nature is a fighting animal, hence to think of a crimeless society is a myth. Truly speaking, there is no society without the problem of crime and criminals. The existence of crime is established from the time of Adam. The Bible and the Quran give vivid examples of the first crime committed by one son of Adam. It can be safely said that crime in one form or the other, has been present since time immemorial. Similarly, the investigation and detection of crime is also of same age as of crime. With the advancement of science and technology the criminals have adopted new methods and techniques for committing offences, but science has also helped the investigating agencies in their efforts to nab the criminals or real culprits.

The ways of interrogation of criminals by using third degree methods are now giving way to new scientific methods of investigation . Science is the intellectual process for using all the mental and physical resources available in order to understand, explain, quantify and predict normal as well as unusual natural phenomenon in a better way. Thus, scientific approach to understand anything involves observation, measurement of entities that can be quantities, the accumulation of data, and analysis of finding as distinguished from an intuitive approach . Law exists in almost every area of life. There are laws about how people work with one another, how we trade and how we own things. Law can remove people from society for their crimes, law can create bridges between different societies and there are even laws about how to make laws. "The Rule of Law", wrote the philosopher Aristotle in 350 B C "is better than the rule of any individual". The study of "law" raises important questions about equality, fairness and justice.

Science and law are interdependent. Science itself is based on sound law, i.e. its principle should be based on definite grounds. Every science is governed by its own laws. On the other hand, law is also increasingly depending on science. The society is being increasingly aware of its well being and scientific knowledge has made inroads in legal sphere as well. For example, nobody can be deprived of his liberty without due process of law. If a patient is terminally ill, can he/she be given liberty to commit suicide through the assistance of a doctor? If not, to what extent can medical technology assist in reducing the risk of dying in severe pain?

Meaning Of Forensic Science

In the words of David, M. Walker:

“Forensic Science means a branch of science concerned with the application of those bodies of knowledge to legal purposes, particularly to eliciting and interpreting facts which may be of significance in legal inquiries”.

According to Encarta World English Dictionary:

“Forensic science is a crime solving medical science related to the application of science to decide questions arising from crime or litigation”.

According to Concise Oxford Dictionary:

“Forensic Science means a science used in Courts of law”.

According to Modern English Dictionary:

“Forensic Science can be said as pertaining to law Courts”.

According to Dictionary of English Language:

“Forensic means belonging to, used in or suitable to Courts of judicature”.

Forensic science can be described, also, as a science, pertaining to law, but the branch which is used in criminal investigation and findings of which can lead to the arrests and convictions. Forensic Science is the application to those civil and criminal laws that are enforced by the police agencies in criminal justice system . So it is clear that Forensic Science is a science, by means of which material evidence is analyzed, collected, preserved and used in Court of law especially in relation of crime.

The broadest definition of the Forensic Science is the application of science to law. Forensic Science offers the knowledge and technology of science for the enforcement of laws that are framed in our society to regulate the activities of its members. Forensic Science can also be designed as that scientific discipline which is directed to the recognition, identification, individualization and evaluation of physical evidence by the application of the principles and methods of natural sciences for the purposes of administration of criminal justice. It is also known as “Pobulic Science” or “Criminalistics” in America. In France it is also known as “Criminalistique” and in Germany, it has got the name of “Kriminalistik”.

Historical Perspective of Forensic Science

Shrita Jand, in his book Principles of Criminal Law and Forensic Science –

Old Concepts/ new techniques explain two aspects of the origin of Forensic science:

“To those individuals who developed the principles and techniques to identify or compare physical evidence;

“To those who recognized the necessity of merging these principles into a coherent discipline that could be practically applied to a criminal justice system”.

It is generally believed that Sir Arthur Canon Doyle is the first who applied the newly developing principles of serology; finger printing, fire arms identification and questioned documents examination long before their value was first recognized and accepted by real life criminal investigation .

Identification through DNA

After the long use of fingerprints and blood grouping tests molecular biology have taken place between1960 to 1970. In 1985 a famous geneticist of Leicester University, United Kingdom Prof. Alec Jeffery have first used DNA forensic investigation for the purpose of identification of individuals. He had started his researchon myoglobin gene in 1975 and discovered that every individual (Except monozygotic twins) have different and unique gene and it can be traced or detected at the molecular level on the basis of high level of polymorphism in the DNA sequence. DNA is a genetic material and it is inherited amongst the persons from mother and father. It was established after the analysis of myoglobin gene in human beings. Prof. Jeffrey also found that a specific region consisting 33 pairs sequence is repeating several times within an intervening sequence. These tandem repeats were referred to as minisatellites and they have similar regions. Prof. Jeffrey used this technique for the forensic DNA investigation of two teenage girls who were murdered in a narborough village in United Kingdom. After the analyzation and matching of suspects sample with deceased sample (semen), Prof. Jeffrey’s found that suspect was falsely charge sheeted in that case because his DNA sample was different with the sample found on and collected from the person of deceased. After that the suspect was exonerated by the first use of DNA analysis by Prof. Jeffrey and his colleagues .

Forensic Science: The Indian Context

During the British Rule, the development of Forensic Science institute in India was confined to the isolated attempts to establish institutions for the specific problems. Chemical examiner's laboratories were thus set up at Chennai (1848), Calcutta (1853), Agra (1864) and Mumbai (1987). The real progress of Forensic Science as a whole has largely been a post independence development. The first Forensic Science laboratory was set up in Calcutta in 1952 .After that in 1989, DNA test had got legal validity in India. In 1989 first DNA evidence was produced in the Indian Court (in a paternity dispute case in Kerala, India). The DNA analysis is admissible by Court under section 45 of Indian Evidence Act, 1872. The Courts in India admitted that the report of DNA expert was fully admissible in evidence as it is a perfect science . In 2005, the provisions for DNA profiling were included in the Code of Criminal Procedure by passing the Code of Criminal Procedure (Amendment) Act, 2005. The Draft Human DNA profiling Bill, 2012 is positive step taken by the government to implement the advanced technology in the administration of justice.

Scope of Forensic Science

Forensic science means science applied to criminal and civil law because every science can be a Forensic Science if it has some application to justice. The most common areas of science that have forensic application are described below:

Criminalistics

Criminalistics is an old term first coined by Paul Kirk, the father of Forensic Science in the United States. In some quarters, criminalistics is synonymous with Forensic Science. The term can be used to describe the comparative Forensic Science such as fingerprints, question documents, firearms and tool marks. Most commonly, however, criminalistics refers to the myriad of types of physical evidence generated by crime science. This includes illicit drugs, blood and DNA, fingerprints and much more .

DNA – a New Forensic Science Tool

Prasanta Kumar Ray, in his article, DNA Research define DNA as, “Scientists have long been trying to analyse the behavioural 'traits' of human beings - what a person does, what he likes, and what he dislikes; but today they have come to know the genetic elements which determine the behavioural aspects of an individual. These are located in the molecule called DNA (Deoxy ribonucleic acid) and its structural elements.”

Sir Alec J. Jeffrey discovered the use of DNA for forensic analysis in 1984. DNA evidence was first introduced into criminal Court proceedings in the USA in 1986. At that time, there were no guidelines, no standards and no accrediting bodies. Few police departments had the equipment, training and expertise to identify and to collect the DNA evidence from the crime scene.

With the passage of time, realizing its importance, efficiency and accuracy, the DNA technology is being rapidly used in many countries of the world. Now a day, in USA the law enforcement agencies are collecting DNA samples from the crime scene as the evidence and convicting felons, conclusively establishing guilt through unique identification and exonerating the innocent through the use of DNA. The second way, in which DNA technology is being used, is through DNA data banking. In this process samples are taken from offenders and their profiles are placed in a databank where they can be compared with other DNA profile obtained from the scene of crime . Every state in that country has a law that allows DNA data banking. The most progressive law in data banking is Louisiana’s. DNA test is easily available and is inexpensive too. It is for this reason that it is gaining added importance day by day. This technology is so advanced in the USA that it is being called ‘DNA Laboratory on the chip’. The National Commission on the future of DNA evidence had been working for the last six years .

United Kingdom has also realized and recognized the importance of this new technique and has enacted Data Protection Act, 1998. Other countries like New Zealand, Canada have also enacted the legislations like, Criminal Investigation (Bodily Samples) Act and DNA Identification Act, 1998 .

Though the whole developed world has recognized the importance of this new technique in the administration of justice, India has not done anything in this regard. Neither the police nor the lawyers, not even judiciary fully appreciates the advances made in DNA technology. Traditionally, laboratory science was considered separate from practical tools but the need of the hour is to deviate from the tradition. However, we do not seem to have realized how vast the potential of science and technology is in our country. DNA technology has made a drastic improvement in the methodology of prevailing different types of disputes of civil and criminal cases. In our country, DNA technology has been established in middle of 19th century.

Importance of DNA Evidence

The criminal law recognizes the importance of Forensic Science. This advanced science helps in detecting crime and criminals and it has come a long way right from the use of old identification techniques. In 20th century especially in the year 1987 the most significant development pertaining to forensic DNA evidence made appearance in the Court of law in USA and in 1989, it made appearance in India in paternity dispute. Forensic DNA evidence which is related with Forensic Science is nothing more than persuasive information in the shape of scientific examination report which is produced in the Court of law. If the information, which is collected from the various modes of tests and analyses by an expert scientist, are produced before the Court of law and if they are admissible in and accepted by Court then they become "evidence".

In all over the world every person's identity can be traced by the molecular level on the basis of extremely high level of polymorphism in the sequence of his/her DNA.

According to Black's Law Dictionary, “DNA identification is a method of comparing a person's DNA, a patterned chemical structure of genetic information, with a DNA in a biological specimen to determine whether the person is the source of specimen.”

The most significant development of the twentieth century however, had been DNA testing for identifications of human beings. It has since been extended to animals and even plants. On the pattern of human rights instruments e.g., the Universal Declaration on Human Genome and Human Rights 1997, in which the Human Genome Project, which provides the entire spectrum of genetic materials that can be found in all human beings. All human beings have geneses which is the complete set of our genetic instruction on the 23 pairs of chromosomes within each of us that are 99.9% identical in sequence.

The UNESCO declaration considered that, “The human genome is a fundamental component of the common heritage of humanity and needs to be protected in order to safeguard the integrity of the human species, as a value in itself, and the dignity and rights of each of its members. Everyone has right to benefit from advanced technology and human genetics, with due regard for their dignity and freedom”.

Our Constitution is also rightly considered as the significant touchstone for determining the scope of science and technology. The preamble speaks of securing to all citizens equality of status and opportunity, as well as justice-socio, economic and political. Further it envisages Fundamental Rights under Article 21, Article 20(3), Article 51 A (h) and (j) which provides for the development of scientific temper, humanism and spirit of enquiry and reform in order to maintain administration of criminal justice system. DNA analysis has emerged as an extremely valuable tool for the criminal justice system. In many cases, it has served to identify the subject, convict guilty and bring some solace to the victim. In other cases it has exonerated the innocent, at times after the years of unjust imprisonment. DNA's capacity to illuminate the empirical truth provides the opportunity to use it for enhancing the efficiency, effectiveness, equity and credibility of criminal justice throughout the nation .

The Court held that the result of DNA test is an aid to be scientifically accurate. The DNA evidence is a predominant technique for identifying criminals when biological issues are left at scene of crime. DNA testing of samples such as saliva, skin, blood, hair and semen not only helps to convict but also serves to exonerate. The sophisticated technology makes it possible to obtain conclusive results in case in which the previous testing happens to be inconclusive.

Legal Position of DNA Evidence in India

The true character of legislation has been ascertained when a provision of law is impugned on the ground that it is ultra vires the powers of the legislature which enacted it or that it is violative of the rights guaranteed by the Constitution, having regards to the nature of enactment as a whole to its object. The latest position in India is that there is no specific law on the subject of DNA test but DNA testing has got validity in 1989. In India, for the first time Court had accepted the DNA evidence in paternity dispute which required DNA evidence. Today DNA evidence has conclusively taken a special birth and acceptance in legal system as Courts in India are passing orders for DNA test in complex cases.