The advent of forensic DNA testing has had a radical and widespread impact on legal-judicial systems. The exact nature of this impact varies from nation to nation, depending on the specific needs of the nation, the existing legal-judicial system, and how DNA technology has been applied.
As time passes, both the capabilities of DNA technology as well as the number of nations utilizing this technology continue to increase. At the present time, many nations are taking initial steps in DNA laboratory and testing development, while those nations with more established systems continue to improve their capabilities. In addition to increasing technical capabilities, there is also an improved understanding of how DNA systems and databases can be used more effectively as well as an increased appreciation on how to interpret the trends revealed by the analysis of DNA data. The development of DNA technology in general and DNA databases in particular will have an ever-increasing impact on national legal-judicial systems and societies.
EARLY USE AND ACCEPTANCE OF DNA TECHNOLOGY
When forensic DNA technology was first applied to human sources, the amount of material required for testing was often in the milliliter range. This precluded DNA testing from being able to address the majority of criminal cases. In addition, gaining acceptance of DNA results in the courtroom setting presented its own set of challenges. It would take time for the introduction of a new technology, coupled with the statistical analysis that was relevant to almost every case, to gain admittance in courtrooms. In some early cases, DNA results were not permitted into courtroom testimony. However, as DNA results withstood legal-judicial scrutiny and thousands of peer reviewed studies, DNA technology moved from being a new and rather obscure technology with many unknowns and questions to a common and even required source of information. In fact, several television series in which the focus is on Crime Scene Investigations (CSI) and how DNA can help solve crimes has added Hollywood drama and expanded viewer coverage to such a degree that forensic DNA testing is now considered by many to be the norm in CSI investigations. While the CSI shows are factually flawed in many aspects, their popularity and widespread broadcast have resulted in what is called the “CSI Effect” in which judges, lawyers, and juries may almost demand the use of DNA testing for samples from crime scenes, even if such testing will not add to the weight of evidence. The acceptance of forensic DNA technology has reached such a degree that a recent ruling in New York has stated that it is the right of a criminal defendant to have access to forensic DNA testing. Thus, in less than 20-years, forensic DNA testing has moved from being rarely used (and even circumspect in legal-judicial systems) to being demanded by court systems.
The evolution of DNA databases provides significant opportunity to help solve cold crimes–those cases in which no suspects exist but DNA evidence is available for testing. There are two main methods in which forensic DNA testing can assist in legal-judicial investigations. One of these occurs when suspect and evidence samples are available for DNA testing. The other type of method relies primarily upon the creation of DNA databases for comparison to DNA profiles obtained from crime scenes. Various nations and states within the United States have passed legislation detailing from whom DNA samples can be collected. Early in the creation of DNA databases, most legislative statues allowed only convicted felons to be required to provide samples for testing and entry into national DNA databases. As the capability of DNA databases to aid in solving cold cases was demonstrated, legislation often changed to require that other individuals associated with non-violent crimes be required to submit biological samples for testing and entry into the database. In some states and nations, all arrestees are now required to provide samples for DNA testing.
Biological samples left behind at crime scenes or present in skeletal remains that are decades old contain exceptionally small quantities of DNA. Advances in forensic DNA testing methodologies mean that ever smaller amounts of genetic material are required to produce a profile. While early testing often required milliliter quantities of biological samples such as blood, the development and application of the PCR method radically altered the reality of DNA testing by significantly decreasing the amount of material required to produce a DNA profile. Today’s techniques are often successful in obtaining results from trace or touch evidence in which several hundred cells provide sufficient biological material for testing. Low copy number (LCN) testing, in which a few dozen or less cells are present, is also becoming a testing option, and it is possible to foresee a time when a single cell will be able to be tested. However, as fewer and fewer cells are tested to produce DNA profiles, contamination concerns due to the presence of cells from multiple individuals will increase and how, or even if, these concerns can be addressed in a forensic, legal-judicial setting, will need to be determined.
One of the patterns revealed by large-scale DNA testing of felons and arrestees has been to show that some criminals tend to “graduate” in their criminal activities. Some criminals who begin their criminal career involved in petty theft or burglaries may eventually become involved in progressively more violent crimes. In addition, the entry of DNA profiles from some arrested for a traffic citation has the potential of assisting in solving rape cases. The emergence of these types of patterns has been one of the main driving forces behind the change in legislation that requires DNA samples be taken from individuals who committed non-felon and non-violent crimes.
As methodologies, computers, and robotic systems increase their capabilities, forensic DNA testing is able to be applied in scales that previously were not possible. In addition, the cost per sample for testing and databasing has also decreased. This combination of decreased cost and increased capabilities is among the factors permitting the expansion of forensic DNA testing to most parts of the world. Over the next five to ten years, many nations that currently have either only rudimentary forensic DNA systems or no systems at all will create DNA laboratories and systems. These increased capabilities will rapidly lead to the possibility of integrating regional DNA databases, such as in the Gulf Cooperative Council nations in the Middle East, or to the INTERPOL international system. This integration would assist cross-border DNA investigations on a much larger scale than is currently being undertaken.
One of the most significant advances in DNA technology occurred with the development of the Polymerase Chain Reaction (PCR). The power of PCR technology is that it makes identical copies of targeted regions of DNA and can create millions of identical copies of a certain region of DNA. The resulting millions of copies provide sufficient DNA for testing. The use of PCR testing and its selectivity in amplifying target sites on the human genome provide an increased ability to obtain profiles from rapists in which a male’s biological sample is mixed with a female’s sample. By selectively targeting regions on the Y-chromosome, only the male profile is amplified, providing DNA results even when the male fraction of DNA is by far less than the female’s fraction.
Degraded DNA is often encountered when dealing with biological samples that are comparatively old or have been exposed to extreme environmental insult, such as heat, acidic soils, or other types of conditions that accelerate the breakdown of DNA. These conditions are commonly found when attempting to obtain DNA profiles from skeletal remains in which the time of death of the individual occurred more than 10–20 years ago, or when the body may have been buried in conditions “hostile” to DNA. Moving the amplification primers closer together on the target DNA decreases the size of the amplified region or the amplicons. For degraded DNA samples, the smaller the size of the target DNA to be amplified, the greater the odds of that target DNA region being intact. The use of mini amplification techniques can often produce DNA profiles from highly degraded samples and is being increasingly used to help obtain DNA profiles from degraded skeletal remains.
DNA TESTING AND MASS CRIME
Advances in the sensitivity and speed of DNA testing has permitted large-scale testing not only on database samples but also on more challenging samples such as skeletal remains and sexual assault cases. The testing of large numbers of skeletal cases has the potential of assisting in the identification of hundreds of victims of natural or man-made disasters, including genocide. By identifying hundreds or thousands of missing persons or by testing hundreds of sexual assault cases, patterns that support accusations of state participation and/or sponsorship of these crimes can be revealed. Thus, DNA testing can be used to hold both individuals, as well as national entities accountable.
DNA testing can assist in the identification of large numbers of missing persons. Perhaps the best example of this to date is the use of DNA technology in the former Yugoslavia to help in the identification of victims of genocide in a DNA-led identification system. The breakup of the former Yugoslavia from 1992–1995 and the ethnic violence in Kosovo in 1999 resulted in the deaths of more than 200,000 individuals with more than 20,000 remaining missing at the end of hostilities. The majority of the missing was civilian victims of “ethnic cleansing,” with the most well-known example being the deaths related to the fall of Srebrenica, Bosnia-Herzegovina, in July 1995 in which an estimated 7,000–8,000 mostly Muslim boys and men, went missing.
Beginning in the 1990s, mass graves of genocide victims were uncovered, but the vast majority of these bodies could not be identified through traditional, non-DNA testing techniques. Even the ethnicity of the bodies was debated by some. Beginning in 2000, a system comprised of four DNA laboratories was developed in Bosnia and Serbia. Centers for collection of reference samples from families who were missing loved ones were developed throughout the region, and a facility for storing the profiles and performing comparisons of DNA profiles was established in Tuzla in east central Bosnia. By the end of 2003, this system was testing more than 500 bodies and thousands of reference samples per month, resulting in hundreds of DNA-led identifications per month. The bodies recovered from around the Srebrenica area were shown to be the missing Muslim boys and men from the fall of Srebrenica. The thousands of identifications of Srebrenica genocide victims resulted in The Hague issuing hundreds of indictments for crimes against humanity and for war crimes relating to events in Srebrenica. The weight of evidence and DNA-led identifications compelled the Republic of Srpska (the Bosnian Serb government entity) to admit their forces participated in the events associated with the fall of Srebrenica. Thus, the results of DNA testing were of paramount importance for a national entity accepting responsibility for genocide and for setting a precedent.
Government Sponsored Rape
The ability of DNA testing to return the names of the missing to their bodies and to aid in uncovering genocide begins to hint at some future uses for DNA testing. By holding both individuals and nations accountable for their actions, DNA testing can have a potentially deterrent effect for future mass killing and possibly for other large crimes that often accompany genocide and crimes against humanity, such as state sponsored rape and other forms of violence. DNA testing itself does not show intent or whether a crime has occurred. Instead, it can help to reveal patterns of widespread and systematic violence. For example, the testing of thousands of rape cases in an unsettled region can show if the same group of men is responsible for the rapes and if this group has the mobility to move from one village to another. Such mobility in a region of conflict can hint at state sponsorship of a campaign of systematic rape. As in the case of Srebrenica outlined above, not only can individuals be held accountable for their actions, but DNA evidence may also be used to indicate state sponsorship of rape, a problem that humanity has faced for millennia.
INTERNATIONAL DATABASE DEVELOPMENT
Over the past decade, the cost of performing DNA testing has decreased significantly, while at the same time, the ability of testing large numbers of samples has become increasingly practical. These factors permit the possibility of databasing large numbers of samples from millions of individuals by an increasing number of nations. Several nations are now in the process of developing the capability of databasing all foreign residents, which in some cases will result in databases containing millions of profiles. One of the primary driving forces behind immigrant database development is national concerns related to safety and security and how forensics, especially DNA testing, can help link criminal activities with samples left at crime scenes. Since DNA results can be used to show familial linkage, it is not always necessary for the individual in question to have a profile in a database as the DNA database search could show that the sample in question was likely left by a relative to an individual in a database. Eventually, national databases may be linked to help in the investigation of crossborder criminal activities. However, as individual nations have differing laws and legislation regarding individual rights, how systems among nations can be more fully integrated in the future and how DNA profiles might be able to be shared among nations will need to be addressed. This becomes an acute issue when the samples are taken from non-suspects, as is the case with immigrant databases, as well as among nations that permit or forbid capital punishment. It may be that legal-judicial differences among nations prevent certain DNA databases from becoming internationally linked.
Today more than ever, the use of DNA technology is growing in every country around the world. Generating DNA databases will help solve crimes, exonerate the innocent, or identify the missing from past conflicts or natural disasters; the power of DNA technology is growing. This growth in the power of DNA testing is based not only upon technological improvements, but also in the understanding of how the results of DNA testing can be used in legal-judicial setting to address individual crimes as well as helping to reveal patterns associated with genocide, systematic rapes, and other widespread acts of orchestrated violence. As technological improvements continue, and as how to interpret patterns revealed by DNA testing become better understood and accepted, forensic DNA testing will have an ever increasing impact on national and international legal development, justice, and accountability. Large scale DNA databases represent significant tools for law enforcement and legal-judicial systems and can help make us safer by bringing justice to both individuals and nations. The rapid improvement in DNA technology has permitted DNA databases to be created much faster and at far less cost than previously possible. The results obtained from DNA databases coupled with non-DNA forensics data can provide legal and law enforcement systems with the information to help uncover truths and make for a safer and more humane world.
Ed Huffine is V.P. for humanitarian missions and international development at Bode Technology Group. Mr. Huffine has more than 18-years of experience in forensic science and human DNA identification, working for the FAA, where he helped develop a DNA laboratory to assist in the identification of fatal air crash victims and the Armed Forces DNA Identification Laboratory where he became the Chief of the section responsible for the identification of missing American service members from the Vietnam, Korean, and World War II wars. Mr. Huffine served as the Director of the Forensic Sciences Program for the International Commission on Missing Persons (ICMP) from 1999 – 2004. Mr. Huffine holds a bachelor’s degree in Chemistry from Cameron University and a master’s in Biochemistry from University of Oklahoma.