Regarding g DNA and other Forensic Biometric Databases:

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1 Legislative & Ethical Questions Regarding g DNA and other Forensic Biometric Databases: Dr. Elazar (Azi) Zadok Police Brig. General (Ret.) Director, Forensic Science Division, Israel Police The 3rd International Conference on Ethics and Policy of Biometrics and International Data Sharing Hong Kong, January 4 5, 2010

2 Forensic Science in the 21 st Century: General Considerations Locard Principle (1904): * Every contact leaves a trace * Physical evidence never lies and is never wrong or absent. It s the investigator t who fails in locating, studying and understanding it

3 The Roll of Forensic Science Forensic science deals with: * Identification: drugs, explosives etc. * Comparison of physical evidence from a crime scene with reference materials, leading to suspect/scene or scene/scene connection. The chance of a case, having any forensic evidence in it, to reach court and get a conviction is higher by 50%, as compared to case without any forensic evidence.

4 The Roll of Forensic Databases (I) In absence of forensic databases: * Only 1:1 comparisons (scene/ suspect or scene/ scene) can be achieved. Forensic databases allow: * Identification of suspects without their physical apprehension (1:many comparisons). * Detection of forged identities of individuals. * Generation of valuable forensic intelligence.

5 The Roll of Forensic Databases (II) Manual forensic databases: * Hit generation ability depends on sorting techniques and operator s skills. Computerized forensic databases: * Allow compilation of huge amounts of information. * Automatically searched. Efficiency of the Database is a Function of its Size & Relevance. Experts are always needed to confirm hits.

6 Information Included in Forensic Databases: Crime Scenes : * Biological evidence. * Other physical evidence found on the scene. People (suspects, accused): * Biological characteristics. * Items possessed by or connected to them. Reference materials: * Unrelated items needed for sorting/ identification of other evidence.

7 Types of Forensic Databases Almost any type of forensic evidence can generate a database Human traits: * Photo-album * Finger (& palm) prints * DNA * Voice & speech * Physical characteristics * Odontological data * Others (handwriting, iris etc.) Physical evidence: * Shoeprints * Firearms (cartridges & bullets) * Tool-marks * Fibers & polymers * Chemical substances (drugs, explosives, flammable materials, GSR, poisons etc.) * Documents

8 Forensic DNA Databases: Human rights confinement OR Protective shield for the society?

9 Forensic DNA * Forensic DNA was introduced by Prof. Jeffries in the U.K. in * The first DNA profiles database was created in the U.K. in * The FBI possesses the largest DNA database (more than 7M profiles, CODIS) * The U.K. database (NDNAD) contains more than 4.5M profiles (6.5% of the population)

10 Legislative & Ethical Issues Concerning Forensic DNA Databases (I) DNA Database is Different: ee * DNA sample contains sensitive individual genetic information. * Might non-coding regions used today for identification have genetic meaning in the future?

11 Legislative & Ethical Issues Concerning Forensic DNA Databases (II) Inclusion & Deletion Criteria: * Types of offences: severe crimes only; recidivistic nature; all recordable offences * Populations: convicts only; suspects; arrestees; volunteers * Deletion conditions: acquitted; not charged; volunteers * Time period for deletion

12 The U.K. NDNAD: Achievements. 4/01-10/0910/09 statistics * Total No. of crime scene matching subjects on database: 335,545 * Murder/ attempted t murder matches: 2,163 * Rape crime scenes matches: ,341

13 The U.K. NDNAD: On the expense of * 4,762,033 individuals retained (as of 16/10/09; >6.5% % of population) * 37,515 (0.8%) sample profiles retained from volunteers * ~16% duplicate records * Includes: 40% of black men; 13% of Asian men and only 9% of white men * ~6% of profiles of under-18s * Includes 0.8-1M people who have never been charged or convicted

14 The U.K. NDNAD: The case of S. and Marper vs. the U.K. From ECHR Decision: the practice of retaining DNA and fingerprints of anyone arrested but not charged or convicted in England and Wales was a violation of the right g to respect for private life under Article 8 of the ECHR (December 2008)

15 The U.K. NDNAD: The case of S. and Marper vs. the U.K. Home Office response (May 2009): A consultation paper issued: Keeping the Right People on the DNA Database: Science and Public protection Proposed DNA retention rules: * Convicted adults- indefinite * Unconvicted adults- 6/12 years * Unconvicted 16-17s- 6 years for serious offence, 3 Years for minor offence * Volunteers- deleted from database

16 Legislative & Ethical Issues Concerning Forensic DNA Databases (III) Retention & further use of DNA samples/ profiles: Issues for consideration: * Function creep in research * Genetic Criminology * Database updating due to future technological developments * Interchange of information between different DNA databases

17 Legislative & Ethical Issues Concerning Forensic DNA Databases (IV) Other issues: * Familial searching * Abandoned DNA * Population-wide id DNA database * Professional expertise: - Lab performance & accreditation - Results interpretation

18 Legislative & Ethical Issues concerning Forensic DNA Databases (V) DNA dragnets (intelligence-led mass screenings): * Considerations: ethnical; geographical; others * Stand alone or intelligence based operation * Community cooperation * Cost effectiveness relative to other means

19 Legislative & Ethical Issues concerning Forensic DNA Databases (VI) DNA of volunteers: * Definition: people who might be connected to the crime are asked to submit DNA sample for elimination purposes (not as suspects). * Issues for consideration: Issues for consideration: - Type of consent (limited; comprehensive) - Informed consent - Revoking the consent - Fate of samples & profiles of volunteers

20 Society welfare & privacy rights: can these be properly balanced? Anat Fliner murder case

21 Society welfare & privacy rights: can these be properly balanced? Anat Fliner murder case * 500 people were sampled in a DNA dragnet. * All of them signed a limited consent form, allowing the use of their profiles for the murder investigation only. * DNA lab expert recalled a relatively rare combination of alleles, l similar il to one of the volunteers, in another serial rapes case. * The full profile of the volunteer matched perfectly, revealing the serial rapist identity.

22 Society welfare & privacy rights: can these be properly balanced? Is this DNA evidence admissible in court? YES The Public safety model: Criminal justice system should: *Fight crime & criminals *Defend public & victims safety *Find the truth *Convict & punish criminals Only the reliability of the evidence itself matters NO The Exclusionary model: Based on the fruit of the poisonous tree doctrine: Evidence obtained by defective or unlawful means or processes should not be used against the accused, in order to: *Strengthen public trust in law enforcement system *Avoid breaching rights of suspects

23 Society welfare & privacy rights: can these be properly balanced? Is this DNA evidence admissible in court? The fruit of the poisonous tree doctrine does not automatically hold. Criteria for admissibility of evidence to be decided by court on a case to case basis: * The use of improper p investigation methods intentionally and deliberately or in good faith * An urgent need to protect t public safety * The degree to which the illegal or unfair investigation method affected the credibility of the evidence obtained.

24 Society welfare & privacy rights: can these be properly balanced? Is this DNA evidence admissible in court? Judge argumentation for admitting the evidence in court (I): * There is always a conflict between the private interest or right violated on one hand, and the public interest in using the evidence as part of the struggle for law enforcement and putting criminals to trial on the other hand.

25 Society welfare & privacy rights: can these be properly balanced? Is this DNA evidence admissible in court? Judge argumentation for admitting the evidence in court (II): * It is unacceptable that the police and attorney general will stand unarmed in front of such a suspect, having an excellent evidence to prove his guilt, but not having the ability to charge him only because of a virtual damage to his privacy.

26 Society welfare & privacy rights: can these be properly balanced? Is this DNA evidence admissible in court? Judge argumentation for admitting the evidence in court (III): *In this case, the accused privacy violation is not comparable to the damage to the public and law enforcement that could result in not having him put to trial.

27 Summary and Conclusions Modern forensic science combined with comprehensive biometric databases form a powerful tool in the hands of law enforcement agencies. In many circumstances, problems related to privacy and human rights breaching may arise. In many countries, legislators attitude towards DNA databases is changing, from both extremes, towards a much more balanced one: Inclusion of convicts in all felonies, but restriction of the retention and use of data concerning legally innocent populations. Every conflict should be resolved either by legislation or in court. There is no single solution for all cases. Government should create an appropriate public atmosphere, ensuring correct balance between human rights and law enforcement.

28 Thank you for your attention