Human Rights in Ireland is delighted to welcome this guest post from Dr. Stephen Donoghue. Stephen is a final year law student at Griffith College Dublin and a case worker on the Irish Innocence Project. Stephen completed his PhD at the University of Leicester in Molecular Pathology in 2000 and has worked for a number of biotechnology and pharmaceutical companies. Stephen was also a postdoctoral research fellow at the Brigham and Women’s Hospital at Harvard Medical School.
The Irish Innocence Project at Griffith College is part of a global Innocence Network that resolves to investigate alleged miscarriages of justice. The use of DNA to exonerate convicted individuals has been crucial in the investigation of these injustices, especially in the United States. In general the Irish Innocence Project welcomes many of the provisions of the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 currently passing through the Oireachtas. The establishment of a DNA database is crucial in a modern democracy in assisting the police force to detect and prosecute serious crime. However, a number of commentators, including some on this blog, have rightly expressed concern over some of the provisions of the Bill, especially with regard to the retention of samples and profiles of individuals not convicted. However, on behalf of the Irish Innocence Project, I would like to focus in this article on the retention of biological material in the criminal justice system and in particular the right of an individual, if it exists, to gain access to said material and any information from it.
Many of the provisions in the DNA Bill have been drafted upon the recommendations of a Law Reform Commission (LRC) report on the establishment of the DNA database . The Irish Innocence Project would like to draw attention to the serious oversight of recommendations in the LRC report that have not been acted upon in the DNA Bill. In particular the Bill appears to ignore the recommendations of the LRC concerning crime scene biological material. One of these recommendations is outlined in paragraph 3.06 where the LRC unreservedly recommends the indefinite retention of crime scene biological material. The report acknowledges how
“the retention is principally as a safeguard in the event that an individual convicted of the offence to which the sample relates alleges that a miscarriage of justice has occurred and wishes to challenge the veracity of the original evidence”
The current DNA Bill, as it stands, is silent on this issue. With regard to DNA samples it instead focuses only on the retention and destruction of samples and profiles taken from suspects, convicts and volunteers.
Currently, according to the Braddish case, “it is the duty of the gardaí to seek out and preserve, so far as is fair and reasonable, all evidence relating to the guilt or innocence of the accused”. To date, all cases, including Braddish and McFarland, that have dealt with the preservation of evidence for legal proceedings have focused on the preservation until all appeal has been exhausted. However, there is no statutory requirement for the gardaí to retain evidence once these legal proceedings have been exhausted. The ability of convicted individuals to access the crime scene material to conduct DNA testing has been highly contentious in the United States and was dealt with recently in the Supreme Court with the Osborne case . Although almost all States have enacted legislation that allows some form of access to post-conviction DNA testing, the exact nature of this access, or discovery, can be highly provisional with a number of qualifications, such as a time limitation or a confessional ineligibility. In Osborne the appellant was attempting to establish a constitutional right to post-conviction testing under the Due Process Clause. In a 5 – 4 rejection of this right and a reversal of a Court of Appeals decision Chief Justice Roberts denied the existence of this right primarily on the grounds that both the Federal Government and individual States had enacted statutes dealing with evidence for DNA testing and therefore this function was solely the preserve of the legislature. Reference was made to the Justice For All Act 2004, part of which established a federal programme to allow for post-conviction DNA testing. Furthermore, the Court rejected the claim that access to DNA testing after conviction came under the aegis of the Due Process Clause. However, representing the dissenting opinion, Justice Stevens refuted the justifications given for a rejection of the right indicating that:
“the fact that nearly all the States have now recognised some post-conviction right to DNA evidence makes it more, not less, appropriate to recognise a limited federal right to such evidence in cases where litigants are unfairly barred from obtaining relief in state court.”
Stevens outlined the substantial difficulties and barriers associated with many of the statutes granting access to DNA testing after conviction. He also indicated that access to testing after conviction was consistent with ‘recent trends in legal ethics recognising that prosecutors are obliged to disclose all forms of exculpatory evidence that come into their possession following conviction’. Finally, Justice Stevens strongly rejected the Court’s opinion that the right to access to DNA material after conviction did not come under the Due Process Clause. Quoting Luttig in Harvey he opined that although no one would contend that this process of fairness is like anything approaching in scope that which is required pre-trial,
‘where the government holds previously-produced forensic evidence, the testing of which concededly could prove beyond any doubt that the defendant did not commit the crime for which he was convicted, the very same principle of elemental fairness that dictates pre-trial production of all potentially exculpatory evidence dictates post-trial production of this infinitely narrower category of evidence.’
In a recent article Michael Naughton, the Director of the UK Innocence Network, attempted to link the right of access to post-conviction DNA testing to a number of international agreements, including the European Convention of Human Rights (ECHR), the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESR) . In England the Criminal Procedure and Investigation Act 1996 (CPIA) requires the police to retain all case material until the individual is released from custody . However, this statute does not extend to the procedures of third parties such as the Forensic Science Service.
The issue of access to post-conviction testing has yet to arise in Ireland, but with the advent of a DNA database and the consequent emergence of DNA technology in the Irish criminal justice system, there can be no doubt that it will. The LRC report recognized this and took into account the double-edged nature of DNA technology in a criminal justice system. Although DNA profiling is a very powerful technique, and can be of immense use in identifying individuals at a crime scene, it is not infallible. In particular, crime scene samples can often contain mixed samples and hence their analysis can be more complex and difficult to interpret. Furthermore, crime scene biological samples are often of a lesser quality due to DNA degradation and contamination. Conversely, an individual may be convicted despite the lack of incriminating DNA forensic evidence; it is possible in such a case that future developments in DNA profiling might provide exculpatory evidence. It is for these reasons that the LRC report recommended the indefinite retention of crime scene biological material.
It is uncertain why the Bill is silent on this issue. It may have to do with the added costs of storage of material. Most of the recommendations in the LRC report relating to the acquisition and destruction of samples and profiles from volunteers, detained individuals and convicted persons have been drafted in the Bill. Some of the provisions in the Bill with regard to a detainee’s profile have raised serious privacy concerns and might not be seen as proportionate according to the European Court of Human Rights as per S. and Marper. The Bill also allows for so-called “DNA dragnet” initiatives, where the police seek DNA samples from volunteers in their investigation of a serious crime. It should be noted that it would appear that the majority of challenges in the Irish courts to the presentation of DNA evidence have been concerned with bodily integrity and the right not to incriminate one’s self. It is therefore submitted that on the basis of previous presentations of DNA evidence in Irish courts the DNA Bill has focused on these proposals in the LRC report.
It may also be that a controversial recommendation of the report, concerning the potential use of phenotypic profiling of crime scene DNA, influenced the drafters of the Bill. In paragraph 3.21 the LRC report recommends that in certain exceptional cases “analysis of coding regions should be allowed to determine non-sensitive phenotype information”. It is unclear what non-sensitive information refers to, but phenotypic profiling, or “racial profiling”, has been used in the UK and the USA to provide leads for the police to investigate serious crimes. Phenotypic profiling can provide information on race and other characteristics such as hair and eye colour, however its use raises serious legal and ethical concerns. The Bill is silent not only on racial profiling, but also on familial profiling. This is a highly controversial procedure where a DNA profile from a crime scene is compared under lower stringency parameters to profiles of individuals in a database with the aim of finding a familial match, such as a brother or sister or nephew etc. Indeed, in July last year the Los Angeles police arrested a man they believe to be the infamous “Grim Sleeper” on the basis of a matched profile from the crime scenes with the suspect’s own son. The latter had only been convicted of a weapons crime, however his DNA showed a partial match with DNA recovered from victims. Familial profiling has also been used in the UK where it led to the prosecution of the “Shoe Rapist” after a partial match with his sister was ‘mined’ because she was on the DNA database for a drink-driving offence.
Finally, the Bill is silent on the application of more advanced methods of DNA profiling, such as the controversial method of low copy number (LCN) DNA profiling and Y-STR profiling. The LCN DNA technique for profiling very low amounts of DNA at a crime scene was heavily criticized in the Hooey case in Northern Ireland, but appears to be accepted under certain conditions after the recent Reed and Reed case in the UK. It would be expected that with the establishment of the DNA database that these more advanced profiling techniques would become more prominent in the forensic environment in Ireland.
Ominously, in Section 57 of the Bill where the purpose and scope of the Database is outlined, it refers to the system being used for “any other related purpose”. This open-ended provision is vague and suggests the possibility of the use of more advanced DNA profiling, such as LCN DNA, and more sophisticated DNA mining, such as familial profiling. The Irish Innocence Project wishes to make it clear that it is not against advanced DNA profiling techniques; indeed it is in favour of them, provided the correct legal and scientific safeguards are put in place for their use. However, a correct legal platform for the treatment and retention of DNA from crime scene material is an essential part of the establishment of a DNA database and provides a crucial insurance against the possibility of miscarriages of justice. Whatever informed the decision to ignore the LRC’s recommendations concerning the retention of crime scene material, the Irish Innocence Project wishes to highlight the omission.
In summary, the ability to access the original crime scene sample and profile is crucial for the exoneration of wrongly convicted individuals. In Ireland the police are required to preserve material evidence until a trial is complete. Sometimes this evidence is retained in case the person convicted instigates a legal challenge. However, there is no statutory provision for the police to do so. This is in contrast to the USA, where the majority of states have enacted laws requiring the preservation of evidence throughout the individual’s imprisonment. A lack of access to post-conviction DNA material is regarded by the Innocence Project in the USA as one of the major stumbling blocks in the efforts to prove a miscarriage of justice. A number of cases investigated by the Innocence Project there highlight the importance of crime scene material. Jeff Deskovic falsely confessed to murder and rape, despite a lack of incriminating DNA evidence at his trial. Fifteen years later DNA evidence from the crime scene matched to another individual already in prison for murder. In the case of Kirk Bloodsworth the judge from his second trial had kept some of the evidence in a box in his chambers. Bloodsworth had been convicted of rape and murder. After spending eight years in jail he was released on the basis of exculpatory DNA evidence extracted from the judge’s box. Furthermore, ten years after his release the attorney’s office in Maryland compared DNA from the crime scene to a DNA database and found a match. The real killer confessed.
These cases underscore an important fact. Investigating miscarriages of justice often contributes to the arrest of the real perpetrator. The indefinite preservation of DNA from crime scene material is at the heart of these investigations and it is likely to prove invaluable for future inquiries as more sensitive and better DNA profiling technology develops. This was also one of the major reasons the LRC report highlighted the need to indefinitely retain crime scene material. The lack of any provision regarding the treatment and scope of this material in the Bill is a concern. The Irish Innocence Project applauds the foresight of the LRC and requests that their recommendation for indefinite retention be implemented.