DNA controversies

Published : Sep 11, 2009 00:00 IST

The police conduct a mock exercise as part of the training for constables in investigating murder cases, in Puducherry on July 24. The Bureau of Police Research and Development in Delhi has to prepare a nationally applicable training capsule so that every new entrant to the police force at the station house officer level gets to learn how to lift DNA evidence from a scene of crime and send it to the nearest laboratory.-T. SINGARVELOU

The police conduct a mock exercise as part of the training for constables in investigating murder cases, in Puducherry on July 24. The Bureau of Police Research and Development in Delhi has to prepare a nationally applicable training capsule so that every new entrant to the police force at the station house officer level gets to learn how to lift DNA evidence from a scene of crime and send it to the nearest laboratory.-T. SINGARVELOU

AWHEN I began writing this column came the news that a trial court in Delhi had convicted four former members of the Presidents Bodyguard for raping a 17-year-old girl at the Buddha Jayanti Park in Delhi in 2003. The accused were arrested within days of the crime and the charge-sheet was filed in a months time.

By any standard, it was an excellent piece of work by the Delhi Police. However, it took six years for the trial to conclude, a sad commentary on our criminal justice system, on which the Prime Minister expressed anguish at a recent conference with the Chief Justice of India and Chief Ministers.

It is too early for me to ascertain what evidence was let in by the prosecution in this case, apart from focussing on the victims own deposition. I am reasonably certain that DNA (deoxyribonucleic acid) evidence was also collected and cited against two of the accused who committed the barbaric act. (The other two facilitated it.) I will be surprised if the Delhi Police did not because DNA testing has become a standard tool in the hands of the prosecution in such cases.

There is also the recent report of an actor in Mumbai being nailed for the alleged rape of a domestic help, mainly on the basis of a DNA test because there was no eyewitness to the crime, and the police had to go solely by the alleged victims version. At a recent Cambridge University conference that I attended, a United States police officer made a convincing presentation on how DNA evidence can be useful even in burglaries and other property offences. No police force in the world can, therefore, remain insulated from this trend of growing reliance on DNA evidence by prosecutors and courts alike.

Indian police forces have made some progress in this direction, although I would expect them to share more information with the public and the media on this crucial subject. Newspapers in the U.S. and the United Kingdom do not miss a single development in this area, something their Indian counterparts would do well to emulate.

A recent case in the U.S. highlights how a well-managed national DNA databank can come to the rescue of an investigator handling an otherwise blind crime. It relates to the disappearance of Laura Garza, a 25-year-old Brooklyn woman, in December 2008. (According to a MySpace notice, she is yet to be traced.) She was last seen alive in the company of one Michael Mele (23), who was arrested a few days after Laura went missing for an entirely unrelated offence of lewd sexual behaviour in public and in the immediate presence of a child. Mele was found to have a criminal record for sexual deviance, and traces of DNA picked up from his car (in which he travelled with Laura) and the damaged carpet of his house cooked his goose. Laura or her remains, if Mele did murder her, are yet to be traced. But all evidence points to Meles participation in the episode. There are any number of such clueless cases having been solved by the police in many parts of the world, and courts have been convinced with the DNA evidence adduced by the prosecution.

However, two major problems make the use of DNA evidence a tortuous exercise: a huge backlog of cases awaiting laboratory results and human rights concerns of the ever-enlarging DNA databases. In these days of extreme mobility, it does not make sense to construct and manage a narrow database of only local criminals and suspects.

Both the U.K. and the U.S. have nationwide databases of DNA profiles, in addition to local ones. Notwithstanding Indias population of more than a billion, it seems expedient to attempt such a database in India. Nandan Nilekanis Unique ID number project can possibly throw up ideas for the National Crime Records Bureau (NCRB) for designing a national DNA database.

The real problem, however, is one of making such a database contemporaneous. Laboratory facilities in the U.K. and the U.S have proved totally inadequate. The waiting time for the analysis of a sample is several months because every specimen requires at least a week of laboratory time. The dimensions of the problem can be understood from the fact that the database set up in the U.K. in 1995 perhaps for the first time anywhere in the world has four million names, while its counterpart in the U.S. has a slightly larger number and it receives more than a million profiles each year.

While the Federal Bureau of Investigation (FBI) concentrates mostly on Federal convicts and suspects, State agencies hold profiles of those coming to then notice within their jurisdiction. Ironically, many States in the U.S. have been unable to spend all the grants extended to them by the Federal government to expand laboratories. This should sound familiar to the Indian bureaucracy.

The Union Ministry of Home Affairs is often at pains to make States conform to the basics of fiscal discipline in spending money under the Centres annual modernisation grants to State police departments. India has a few centres of excellence for DNA analysis but many more of them are needed to handle the growing number of sex-related and other violent crimes. The expansion in the number of DNA laboratories could improve the detection and conviction rates as well. Generous financial assistance from the Union Home Ministry should do the trick.

On the human rights front, the U.S. and the U.K. have different problems with regard to DNA testing and storage of data. There have been a number of cases of U.S. prisoners on death row establishing their innocence through a post-conviction DNA test. It has now become routine for any prisoner to ask for DNA testing, if it was not done during the police investigation. As many as 46 States in the U.S. permit at least some prisoners (possibly other than those who had confessed to their crime) to take a DNA test so as to establish their innocence. Alabama, Alaska, Massachusetts and Oklahoma are the exceptions.

According to a report prepared under the Innocence Project of the Cardozo Law School, New York City, the recent past has seen 240 exonerations solely on the basis of post-conviction DNA testing. More interesting, in 103 of these cases such testing helped establish the actual perpetrator of the crime. Can there be a more compelling case for structuring such testing in India on a national scale?

The whole issue of the right of a prisoner to demand a DNA test as a matter of routine came up before the U.S. Supreme Court in June this year. A convict, William G. Osborne from Alaska, had obtained a favourable ruling from the U.S. Court of Appeals on his plea for a current method of DNA testing, one that was more sophisticated than the test he was subjected to in the early 1990s. Osborne had claimed that the advanced protocol now available would alone help the court come to conclusive findings with regard to his guilt or otherwise. The matter was escalated to the U.S. Supreme Court by a state appeal.

The Supreme Court, in a five-four decision, dismissed the petition, saying that the defendant had agreed to the initial testing without demur and Alaska had enough procedures to help those accused in criminal cases gain evidence that could establish their innocence. This decision has been criticised by many human rights activists. One judge of the court, Justice Stevens, actually expressed his doubts about the adequacy of procedural protections in the Alaska law.

Another, Justice Souter, even spoke of procedural unfairness that violates the due process clause. While the U.S. decision may not be relevant wholly to us in India, at least not until we reach a stage where defendants demand a DNA test, we have to be conscious of all that we have to be careful about while establishing a DNA protocol.

Sensitivity to fair treatment of prisoners and the grant of every facility to them to prove their innocence should be the watchwords.

Authorities in the U.K. have a slightly different problem. This is mainly about the period of retention of a DNA profile in the national database. It all arose with the December 2008 ruling of the European Human Rights Court saying that indefinite holding of profiles, especially of those found innocent, was arbitrary and unlawful.

As things stand, every person arrested in the U.K., whether ultimately charged or not, has his DNA profile taken and stored. What causes widespread concern is that thousands of children also figure in this database. In an announcement on August 8, obviously responding to public criticism, the Home Department announced a slightly modified scheme, whereby the retention of a profile will ordinarily be for six years, and where a person is convicted for a sexual or violent crime, his profile will be held for 12 years. Even this concession has not assuaged feelings.

From an Indian perspective, there is scope for meaningful action by the Union Home Ministry and support has to be sought for it from State governments. Foremost is the need for a White Paper that will set out the current situation in the country and unfold a plan of action for the future. Also for consideration is whether we need legislation similar to the U.S. DNA Fingerprint Act of 2005. I personally feel that such an Act will give the impetus for the construction of a national DNA database. Equally important is the expansion of the capacity of existing laboratories and the creation of new ones.

Finally, the Bureau of Police Research and Development (BPR&D) in Delhi has to prepare a nationally applicable training capsule so that every new entrant to the police force at the station house officer level gets to learn how to lift DNA evidence from a scene of crime and send it to the nearest laboratory.

These will be the minimum steps required if we are to ensure that those guilty of a crime are punished and the innocent freed, the fundamentals of a sound criminal justice system.

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