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L i l ti & Ethi l Q ti Legislative & Ethical Questions Regarding DNA and other Forensic g g “Biometric” Databases:

• Dr. Elazar (Azi) Zadok

P li B i G l (R t ) Police Brig. General (Ret.) Director, Forensic Science Division, Israel Police ,

The 3rd International Conference on Ethics and Policy of Biometrics and International Data Sharing H K J 4 5 2010 Hong Kong, January 4‐5, 2010

Forensic Science in the 21st Century: Forensic Science in the 21 Century:

General Considerations Locard Principle (1904): * “Every contact leaves a trace” Every contact leaves a trace * “Ph i l id li d i * “Physical evidence never lies and is never wrong or absent. It’s the i ti t h f il i l ti investigator who fails in locating, studying and understanding it”

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

• r scene/scene connection.

The chance of a case, having any The chance of a case, having any forensic evidence in it, to reach forensic evidence in it, to reach court and get a conviction is higher by court and get a conviction is higher by 50 50%, %, d h f d h f as compared to case without any forensic as compared to case without any forensic evidence. evidence.

The Roll of Forensic Databases (I)

In absence of forensic databases: * Only 1:1 comparisons (scene/ suspect or Only 1:1 comparisons (scene/ suspect or scene/ scene) can be achieved. Forensic databases allow: * Identification of suspects without * Identification of suspects without their physical apprehension (1:many comparisons) (1:many comparisons). * Detection of forged identities of individuals. * G i f l bl f i i lli * Generation of valuable forensic intelligence.

The Roll of Forensic Databases (II)

Manual forensic databases: * “Hit” generation ability depends on sorting t h i d t ’ kill techniques and operator’s skills. Computerized forensic databases: Computerized forensic databases: * Allow compilation of huge amounts of information. * Automatically searched.

Efficiency of the Database is Efficiency of the Database is a Function of its Size & Relevance a Function of its Size & Relevance a Function of its Size & Relevance. a Function of its Size & Relevance. Experts are always needed Experts are always needed fi “hi ” fi “hi ” to confirm “hits”. to confirm “hits”.

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.

Types of Forensic Databases

Almost any type of forensic evidence can Almost any type of forensic evidence can generate a database Human traits:

* Photo-album

Physical evidence:

* Shoeprints * Finger (& palm) prints * DNA p * Firearms (cartridges & bullets) * Voice & speech * Physical characteristics * d l l d * Tool-marks * Fibers & polymers * Chemical substances * Odontological data * Others (handwriting, iris etc ) * Chemical substances (drugs, explosives, flammable materials, iris etc.) GSR, poisons etc.) * Documents

Forensic DNA Databases: Forensic DNA Databases:

Human rights confinement OR Protective shield for the society?

Forensic DNA

* Forensic DNA was introduced by Prof Jeffries in the U K in 1985 by Prof. Jeffries in the U.K. in 1985. * The first DNA profiles’ database was * The first DNA profiles database was created in the U.K. in 1995.

* The FBI possesses the largest DNA database (more than 7M profiles CODIS) (more than 7M profiles, CODIS) * The U.K. database (NDNAD) contains more than 4.5M profiles (6.5% of the population) than 4.5M profiles (6.5% of the population)

Legislative & Ethical Issues Concerning g g Forensic DNA Databases (I)

DNA Database is Different: e e

* DNA sample contains DNA sample contains

sensitive individual genetic sensitive individual genetic information. information.

* Might non

non-

• coding regions

coding regions used today for used today for identification have have genetic meaning genetic meaning in the future? future?

Legislative & Ethical Issues Concerning F i DNA D b (II) Forensic DNA Databases (II)

Inclusion & Deletion Criteria: * Types of offences Types of offences: severe crimes

• nly; recidivistic nature;

all recordable offences all recordable offences * Populations Populations: convicts only; suspects; arrestees; volunteers suspects; arrestees; volunteers * Deletion conditions Deletion conditions: acquitted; not charged; volunteers volunteers * Time period for deletion Time period for deletion

Th U K NDNAD A hi t The U.K. NDNAD: Achievements….

4/01 4/01-

• 10/09 statistics

10/09 statistics * Total No. of crime scene

matching subjects on

33 33

database:

335,545 335,545 * M

d / tt t d

* Murder/ attempted

murder matches: 2,163

2,163 * Rape crime scenes

matches: 4 341

4 341

matches: 4,341

4,341

Th U K NDNAD O th f The U.K. NDNAD: …On the expense of

* 4, ,762 762, ,033 033 individuals retained (as of 16/10/09; >6. .5 5% of population % of population) * 37 37, ,515 515 ( (0 0. .8 8%) %) sample profiles retained from volunteers volunteers * ~16% duplicate records * Includes: 40 40% of black men % of black men; 13% of Asian men and only 9% of white men % of white men men and only 9% of white men % of white men * ~6% of profiles of under-18s * Includes 0 8 1M people who * Includes 0.8-1M people who have never been charged never been charged

• r convicted
• r convicted
• r convicted
• r convicted

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 y charged or convicted in England and Wales was a violation of the ‘right to g respect for private life’ under Article 8 of the ECHR” (December 2008)

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 3 Years for minor offence * Volunteers- deleted from database

Legislative & Ethical Issues Concerning g g Forensic DNA Databases (III)

Retention & further use of DNA samples/ profiles: samples/ profiles:

Issues for consideration: * “Function creep” in research p * “Genetic Criminology” * Database updating due to future technological developments * Interchange of information between different DNA databases different DNA databases

Legislative & Ethical Issues Concerning F i DNA D b (IV) Forensic DNA Databases (IV)

Other issues: * Familial searching

* Abandoned DNA * P l ti id DNA d t b * Population-wide DNA database * Professional expertise: Professional expertise:

• Lab performance & accreditation
• Results interpretation

Legislative & Ethical Issues concerning g g Forensic DNA Databases (V) DNA dragnets (intelligence-led mass screenings):

* Considerations: ethnical; geographical; others * “St d l ” i t lli * “Stand alone” or intelligence based operation * Community cooperation * Cost effectiveness relative to other means

Legislative & Ethical Issues concerning g g 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) (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

Society welfare & privacy rights: can these be properly balanced? can these be properly balanced?

Anat Fliner murder case

Society welfare & privacy rights: can these be properly balanced? 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, g , allowing the use of their profiles for the murder investigation only. * DNA lab expert recalled a relatively rare combination f ll l i il t f

• f alleles, similar to one of

the volunteers, in another serial rapes case serial rapes case. * The full profile of the volunteer matched perfectly, revealing the serial rapist identity. perfectly, revealing the serial rapist identity.

Society welfare & privacy rights: can these be properly balanced? can these be properly balanced?

Is this DNA evidence admissible in court?

YES NO

The “Public safety” model: The “Public safety” model: Criminal justice system h ld The Exclusionary model: The Exclusionary model: Based on “the fruit of the poisonous t ” d t i should: *Fight crime & criminals *Defend public & victims safety tree” doctrine: Evidence obtained by defective or unlawful means or processes safety *Find the truth *Convict & punish criminals unlawful means or processes should not be used against the accused, in order to: Only the reliability of the evidence itself matters *Strengthen public trust in law enforcement system *Avoid breaching rights of g g suspects

Society welfare & privacy rights: can these be properly balanced? 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 to be decided by court on a case to case basis: * “The use of improper investigation p p g methods intentionally intentionally and deliberately deliberately

• r in good faith

good faith” * “A t d t d t t t bli f t ” * “An urgent need urgent need to protect public safety” * “The degree to which the illegal or unfair investigation method affected the credibility of credibility of the evidence the evidence obtained”.

Society welfare & privacy rights: can these be properly balanced? can these be properly balanced?

Is this DNA evidence admissible in court? Judge argumentation for admitting the evidence in court (I): e e de ce cou ( )

* There is always a conflict conflict y between the private interest private interest

• r right violated

right violated on one hand, d h bl bl and the public interest public interest in using the evidence as part of the struggle for law enforcement law enforcement and struggle for law enforcement law enforcement and putting criminals to trial on the

• ther hand
• ther hand.

Society welfare & privacy rights: can these be properly balanced? can these be properly balanced?

Is this DNA evidence admissible in court? Judge argumentation for admitting the evidence in court (II): e e de ce cou ( )

* It is unacceptable that the police

p p 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

• f a virtual damage to his privacy.

Society welfare & privacy rights: can these be properly balanced? can these be properly balanced?

Is this DNA evidence admissible in court? Judge argumentation for admitting the evidence in court (III): the evidence in court (III):

* hi h d *In this case, the accused privacy privacy violation violation is not comparable not comparable to the damage to the public and damage to the public and law enforcement law enforcement that could result in not having him put to trial.

Summary and Conclusions Summary and Conclusions Summary and Conclusions Summary and Conclusions

• Modern forensic science combined with comprehensive biometric

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 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 There is no single solution for all cases.

• Government should create an appropriate public atmosphere,

ensuring correct balance between human rights and law ensuring correct balance between human rights and law enforcement.

Thank you for your attention Thank you for your attention