Episode 50      21 min 27 sec
Criminal Investigation and Your DNA

Assoc Prof Jeremy Gans discusses the benefits, limitations and privacy implications of using DNA in criminal investigation. With host Jacky Angus.

"Although DNA is different in everyone, the little bit of the DNA profile that actually goes on the database is sufficiently small there’s always a risk that two people in the world might have the same DNA." - Assoc Prof Jeremy Gans




           



Jeremy Gans
Jeremy Gans

Jeremy Gans is an Associate Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

Credits

Host: Jacky Angus
Producers: Kelvin Param and Eric van Bemmel
Audio Engineer: Craig McArthur
Theme Music performed by Sergio Ercole. Mr Ercole is represented by the Musicians' Agency, Faculty of Music
Voiceover: Paul Richiardi

Series Creators: Eric van Bemmel and Kelvin Param

Melbourne University Up Close is brought to you by the Marketing and Communications Division in association with Asia Institute.

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Criminal Investigation and Your DNA


VOICEOVER
Welcome to Melbourne University Up Close, a fortnightly podcast of research, personalities, and cultural offerings of the University of Melbourne, Australia.  Up Close is available on the web at upclose.unimelb.edu.au.  That’s upclose.u-n-i-m-e-l-b.edu.au.

JACKY ANGUS
Hello and welcome to Up Close, coming to you from the University of Melbourne, Australia.  I’m Jacky Angus.  In our episode today, we’re looking at the use of DNA.  DNA technology, that is the scientific detection of an individual’s genetic make up, is only 23 years old.  Despite this, its use in criminal law has virtually become the norm in Western society.  The potential of DNA profiling to identify a criminal, and thus serve as evidence in a court of law, means that DNA technology is widely regarded as a boon for law and order; sometimes even cold cases can benefit from modern DNA technology.  Yet, even as DNA science is becoming more and more sophisticated and precise, various problems have arisen regarding its utilisation.  For example, there is growing unease about whether DNA sampling by the police should be voluntary or compulsory and, once the verdict of the court has been given, should a person’s DNA stay on a database, and what if the charges are dropped or a legal technicality prevents the case from going ahead but the police want to retain DNA details for future reference?  In short, how do we weigh up the rights of an individual, presumed to be innocent, against the victim’s right for redress at law and the practicalities of police work, which invariably makes use of all modern technology?  To address these issues my guest today is associated Professor Jeremy Gans from the Law School at the University of Melbourne, Australia.  Dr Gans’ area of expertise is criminal law and procedure and human rights and the law.  He is currently the human rights advisor to the State Parliament in Victoria, Australia.  Dr Gans has written extensively on the subject of DNA in both academic journals and as a popular blogger on the net.  Welcome to Up Close, Dr Gans.

JEREMY GANS
Thank you.

JACKY ANGUS
If we can start at the beginning, how useful is DNA in legal evidence?

JEREMY GANS
Well, the useful feature of DNA is that it contains an awful lot of information – it’s the building block for all living things – but that information is in a very compressed form in a tiny molecule in almost every cell in everyone’s body.  The useful thing for criminal investigators is that means that they are able to draw links between any two living cells to see whether they came from the same person.  That’s extremely handy because often in crime scenes people’s cells – their blood, their hair, their skin, any part of them – might be left behind, either in a big amount or even a tiny amount, and they will be able to compare those cells to any person they come across to see whether they may well be from the same person.

JACKY ANGUS
What about the rights of a suspect to allow or disallow a DNA sample?

JEREMY GANS
Well, the big legal issue is when the police are allowed to go up to someone and say, we’d like to check your DNA to see if it matches a crime scene we’ve got.  They could ask that person for their DNA – and we’re all allowed to consent to it – but the worry the police have, and for good reason, is that some people are going to say, no.  Some people say no for good reasons, they may well be innocent, but perhaps the person who did the crime is going to say no as well; so most jurisdictions in the world have passed laws that allow the police that require people to give their DNA.  The truth is, actually, most people say yes, not necessarily because they want to give their DNA but because they recognise, probably correctly, that the police will find it suspicious if they say no.

JACKY ANGUS
What about retention of the person’s DNA after it’s gone to court, or even before?

JEREMY GANS
Well, once the police have someone’s DNA, they typically analyse it, they turn it into a series of numbers; it’s a short set of numbers, about 15 pairs of numbers, you could write it down on a piece of paper, so it’s no problem at all for the police just to keep it forever, in a physical sense.  Typically, in fact, what they really want to do is put it on a database so any time an unsolved crime comes up they can do a comparison without going back to that person.  What the police would like to do is keep all the DNA they ever come across, including DNA they get from a suspect who is later cleared of a crime – he or she might well be cleared by the DNA they gave, but the police still want to keep the DNA from that person.  In fact, they really would like to get DNA from everyone they could.

JACKY ANGUS
Well, presumably there are some dangers in that.  I mean, people might feel that they don’t want their DNA known, particularly if they’re innocent.

JEREMY GANS
Well, that's true, and also particularly if they’re guilty as well.  Having your DNA on a database means that you lose a little bit of privacy, the privacy that allows you to go about your life leaving bits of your body behind without the state being able to work out who left the body behind.  It’s possible, I guess, that the state might in non-criminal settings want to work out what people’s movements are, so DNA opens people up to that sort of surveillance.  But it also means the people who are thinking of committing crimes have to bear that risk in mind if they know their DNA’s on the database.

JACKY ANGUS
If you look at it from the point of view of increasing surveillance, increasing sophistication across the world in a global age, presumably if you had even some sort of code for a person, even if it were just simple numbers, that material could, in fact, be used, could be sold, could move across boundaries – I’m thinking of geopolitical boundaries – and, in fact, be very valuable.  I mean, isn't there a real danger in having these huge databases with DNAs from all sorts of people stored away somewhere?

JEREMY GANS
Well, because DNA is small and also because the profile is digital, it’s easy to send across different boundaries.  That’s a big problem for lawyers and legal regulators because sometimes it’s hard to regulate things once they’ve left the jurisdiction.  In terms of the value that the DNA has, in terms of crime investigation it extends beyond investigating that person’s involvement in a crime.  There’s a relatively new technique which the police use that takes advantage of the idea that blood relatives tend to have fairly similar DNA and that means that sometimes the police can work out not just if a known person who they’ve got access to their DNA to has committed any crime on their database, but also whether the family of that known person might have committed a crime on the database.  In the UK in 2005 the police were investigating a series of serial rapes.  They had gathered DNA from the victims of those rapes, they’d checked their database and got no matches – the person who’d done the rapes had not been previously sampled and put on the database.  But then they noticed that they got a partial match to a woman who had been picked up for drink driving – she was sitting beside the road crying but she was drunk, so that was counted as drink driving and she had to give a DNA sample because the UK requires DNA samples from everyone who’s arrested for any crime.  The result of that is that they looked into her siblings and she had an estranged brother and they tracked him down and got his DNA and got their match.

JACKY ANGUS
He was in fact the criminal that they were seeking?

JEREMY GANS
Yes.

JACKY ANGUS
You're listening to Dr Jeremy Gans on Up Close coming to you from the University of Melbourne, Australia.  I’m Jacky Angus.  Well, Dr Gans, I’d like to ask what happens in other jurisdictions across the world, I mean, presumably there are variations?  I mean, you've talked about the UK – are there radical differences in some other countries in Europe?

JEREMY GANS
Well, the UK was the first jurisdiction to use DNA identification, it was invented in the town of Leicester by Sir Alec Jeffreys and so they are way ahead of everyone else in the process of using DNA, of building up their database – they now have something like six million people on their database – and they are also way ahead in terms of laws.  By way ahead, what I mean is that they allow their police to gather and retain DNA in more circumstances than most other jurisdictions in the world.  They take DNA for just about every crime including children who are accused of criminal versions of bullying or spitting on someone; they, even by being accused of that crime and arrested for it, will have their DNA taken.  They gather DNA not just from people they suspect of a crime where the DNA’s going to be useful in solving the crime, but also from people who are arrested for any crime, even if DNA’s no use for investigating that crime at all – for example, a crime like drink driving.  They gather DNA from all those people and it stays on their database forever.  Not only that, in the UK as well if they ask someone for their DNA – say, because they’re investigating a neighbourhood to see whether anyone in that neighbourhood might be a particular serial killer – they’re allowed, with the permission of that person, to keep that DNA forever and once the permission is given it’s irrevocable.  Australia mostly follows the UK in that approach.  Australia isn't quite the same.  The approach here is still that DNA’s only gathered from people where it might be useful to the investigators, but once the police get the DNA it goes onto the full comparison database, it doesn't just get used for the crime being investigated, and it stays there for at least a year.  In some jurisdictions of Australia it stays there for forever.

JACKY ANGUS
It’s very much Big Brother, isn't it?

JEREMY GANS
Yes, it is.  That’s criminal investigation for you.  It’s actually a pretty pushy part of the government – they see the stakes as very high, they want to solve terrible crimes.  Although it’s worth saying that nowadays, particularly in the UK, DNA is also used to solve very minor crimes like break and enter and car robberies.  They’re taking advantage of what appears to be a penchant for UK burglars to drink things from the fridge, bite apples, cut themselves on windows and the like or smoke and leave a cigarette butt behind, and they are routinely caught via DNA evidence.

JACKY ANGUS
Haven't been watching enough television?

JEREMY GANS
Well, it is a mystery to me, I’ve got to say, why – especially once word of this approach came out – that the burglars continued to smoke the cigarettes and drink the beer and all of that.  If I was burgling a house in the UK, and perhaps for that matter in Australia, I’d probably take along in my pocket a couple of cigarette butts from the local criminal down the street and leave them behind to put the police off the scent.  I can't believe that I’m the only one who would have thought of that idea.

JACKY ANGUS
You shouldn't be saying that as a lawyer.

JEREMY GANS
Well, one of the concerns people have about DNA is that it’s a lot of science and a lot of physical circumstance and those circumstances can be misleading, particularly as DNA is so potentially powerful in what it says – a direct link between a person and a piece of evidence.  There is this danger that it might get things wrong.

JACKY ANGUS
Well, has it been found wrong?  I’m thinking of perhaps cases where there’s been the suggestion of falsification or contamination?  Is that, in fact, a regular possibility, is it realistic?

JEREMY GANS
It certainly is realistic, it has happened and it has happened in a lot of surprising ways.  Here in the state of Victoria, on two occasions this decade the police announced that they found a match on their database between a particular person and a notorious unsolved crime.  On those two occasions it actually turned out that there was no match to the unsolved crime, it just happened that when they sampled the particular person and took that sample to the lab they also happened to have the clothing from the unsolved crime in the lab on the same day and perhaps the clothing rubbed against the sample, perhaps the DNA floated through the air, perhaps it was passed on the hands of one lab worker to another.  But it’s now accepted that there was never any match to those crimes.  The lucky thing for those two people is that they had no other connection to the crime and, in fact, I suspect that in each case they had either very convincing stories or alibis.  The worry is that there might be many more people, not just in the state of Victoria but around the world, who have also been wrongly connected to a crime via a database match but, because the sort of people on databases are typically convicted offenders with bad criminal records, may be in no position to deny their link to a notorious crime.  So the police proudly announce they’ve solved an unsolved crime when, in fact, they’ve actually perpetrated an injustice and the real criminal is still out there and their DNA is lost because of the contamination.

JACKY ANGUS
Well, Dr Gans, I’d like to ask you in balance, I suppose, what your view is of an ideal situation which takes into account human rights but also takes into account the importance of DNA in criminal justice.

JEREMY GANS
I’m torn.  I’m torn between two extremes.  One is to keep the DNA database exclusively about people who you suspect may well commit crimes in the future – people who are convicted in the past of very serious offences and who you worry when they get out of prison might commit further crimes.  That’s one approach.  The worry about that is that it won't catch enough people because a lot of serious criminals will avoid all contact with the criminal justice system.  The problem is how do you get a wider database without being unfair and, at the moment, the approach in the UK and elsewhere is to drag into the net of DNA anyone who even briefly comes into contact with the criminal justice system, no matter how innocently.  I have a big problem with that.  I just don’t see any reason to distinguish a person picked up or accused of drink driving from you or me with it comes down to the appropriateness of having them under permanent surveillance for committing serial crimes or murders or rapes or burglaries on a DNA database.  Remember that DNA allows you to look at those people’s families as well and see whether they committed crimes in some circumstances.  The way, I think, to solve the dilemma is perhaps one which will be unpalatable to most people.  Sir Alec Jeffreys, the man who invented DNA profiling – he’s just a scientist, he doesn't have any special ability to discuss the ethics but, nevertheless, he put forward a very powerful view.  He said that if you're going to go down the track of having innocent people on the database then put them all on database, every person in a particular nation – perhaps everyone in the world – on a database.  There are a number of benefits to that.  You're not drawing distinctions between people based on temporary contact with the police, which can be quite invidious and target particular people, particular groups – men, indigenous people and so on, young people.  As well as that, if you have everyone on the database, then the erroneous matches that sometimes happen where you wrongly say that this DNA matches one person might be more readily detected.  Although DNA is different in everyone, the little bit of the DNA profile that actually goes on the database is sufficiently small there’s always a risk that two people in the world might have the same DNA.  There are cases where a person’s been wrongly linked to the crime because they happen to have the same DNA profile as the criminal.  If everyone was on the database it would be easier to detect that particular risk.

JACKY ANGUS
Now this plan, presumably, would happen a birth so that, you know, you'd have no problem with deciding the paternity of a child.  That would be quite useful, wouldn't it?

JEREMY GANS
Well, that does open a can of worms.  In countries like Australia just about all babies have blood taken from them at birth to test for some genetic abnormalities and some other conditions and that blood remains on little cardboard cards stored in hospital storerooms throughout Australia, and I imagine there are similar systems worldwide.  There’d be no trouble getting DNA off those cards as long as they’re properly stored, which they typically are.  So, yes, you take the DNA at birth or you go to those cards.  Obviously that will annoy a lot of people who thought that they’d consented to the blood being taken for a medical reason, so it would require some quite difficult choices by the government of the day.

JACKY ANGUS
I’m wondering about a researcher who wants to do a lot of research on just this very issue.  Suppose this researcher wanted to find out about all the babies born in a certain year in terms of later paternity cases.  Now, you'd think that somebody might raise a sort of bioethics issue about the lack of ethics of that.  But hospitals wouldn't be guarding that stuff in quite the same way, would they?

JEREMY GANS
Look, there’s not the slightest doubt that that would be completely unethical for someone to do that sort of research, particularly personal research showing whether, for example, babies born in Australia are the children of the fathers who are on the birth certificate of something like that – fascinating as that particular issue might be.  There’s no doubt that that’s unethical and I don't think it’s seriously on the table that researchers will ever be given that kind of access.  The difference with criminal investigation is that we’re not just talking about research interest, maybe a prurient interest in paternity, but solving crimes.  It’s that that really gives the DNA movement its edge and you can separate out the idea of taking DNA from a Guthrie card – those cards that are used to sample babies – for criminal investigation purposes and for other purposes.  That being said, there are always people who worry that once you start down a road then it’s not that hard for other particular investigations to be made and for the state to feel that it’s okay to authorise them.

JACKY ANGUS
The thing, of course, nowadays is that there is so much legislation protecting privacy of material in hospitals and stored on large databases for all sorts of reasons that prohibit people accessing that as though it were a public domain, in fact.  Doesn't this really also have implications for DNA and access to information on databases?

JEREMY GANS
Well, no, it doesn't because all of that privacy legislation almost invariably exempts criminal investigations from them and the police, if they really wanted to, could go and get a search warrant and, subject to some legal argument, probably get access to those cards.  But in any case they don’t need to.  Just about every jurisdiction around the world has passed specialised legislation allowing the police to get DNA from people.  Even if they didn’t have the benefit of that special legislation, they could ask people – those people would typically say yes.  Failing that, police around the world can entirely lawfully just follow someone around, subject to the laws on stalking, and wait till that person has a drink of a can of Coke, throws it in the bin, handles a pen, throws out a tissue onto the floor, shakes someone’s hand – and undercover officer – and they can get their DNA.  The police in jurisdictions like Canada, which have more restrictive DNA laws, routinely use covert methods of gathering DNA as their way of solving crimes.  No amount of law is going to easily solve that problem.

JACKY ANGUS
Well, given the complexity and the potential of DNA technology in general, it doesn't look like much is going to stop it in the next 20 years.

JEREMY GANS
There is a resources problem.  Although DNA’s cheap, it’s like building roads; the more roads you build the more people want to use them.  In the case of DNA, the more you have on your database and the more police with swab kits out there, the more samples are being sent in and the more machines and administrators and people you need to handle it.  A common problem worldwide is a backlog of sampling, where the police desperately want to investigate a particular crime and the lab says, yeah, we’ll get back to you in six months or a year.  That can be justice denied – it can mean that people who are waiting to be cleared spend their time on remand.  That seems to be an unsolvable problem because every time they throw more resources at it the police respond by saying, well, we have even more crimes we want to look at, let’s investigate stolen cars, let’s investigate people spitting on the street.  So the problem never really seems to go away.

JACKY ANGUS
Well, Dr Gans, I wish you all the best with your research and thank you for being on Up Close.

JEREMY GANS
Thanks for having me.

JACKY ANGUS
That was Dr Jeremy Gans from the University of Melbourne, Australia.  More information on this episode, including a full transcript and related links can be found at our website at upclose.unimelb.edu.au.  We invite you to leave your comments on this or any other episode of Up Close.  To do so, click on the ‘add comments’ link at the bottom of the screen.  Up Close is brought to you by the Marketing and Communications Division in association with Asia Institute at the University of Melbourne, Australia.  Up Close is created and produced by Eric van Bemmel and Kelvin Param.  Our audio recorder is Craig McArthur.  Theme music performed by Sergio Ercole.   This is Jacky Angus thanking you for joining us on Up Close.  Until next time, cheerio.

VOICEOVER
You’ve been listening to Melbourne University Up Close, a fortnightly podcast of research, personalities and cultural offerings of the University of Melbourne, Australia.  Up Close is available on the web at upclose.unimelb.edu.au, that’s upclose.u-n-i-m-e-l-b.edu.au.  Copyright 2008 University of Melbourne.


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