Not so fast with that rapid DNA

  • Subtitle: Legal Report: Criminal & Forensics
Written by  Posted Date: November 16, 2015
Illustration: Faye Rogers
Illustration: Faye Rogers
Forensic DNA testing often conjures up an image of technicians armed with pipets, looking gravely into mysterious blue fluids, and big, intimidating machines. But what if a new technology did to those technicians what e-mail did to the mailman?

The impact is perhaps less dramatic, but a high-tech, rapid DNA device promises to turn DNA testing — a process that often takes weeks or months from the point of extraction, mailing, receiving, inventory, and analysis — into a fully automated, hands-free procedure that wraps in less than two hours. “The idea with rapid DNA is to do what’s already done in the laboratories, but instead of sending the sample to the lab, do it right at booking [in police stations] or right at a travelling laboratory,” says Cecilia Hageman, professor of forensic science at the University of Ontario Institute of Technology. “This says we’re going to bypass the laboratory; we’re just going to put the sample in, have the profile spit out.”

In the United States, the FBI is currently seeking to use the rapid DNA technology in law enforcement, particularly in police stations and at crime scenes. Unlike in Canada, many American jurisdictions allow for collection of DNA samples from arrestees, which then get added into a national DNA databank. Samples collected on arrest are checked against DNA evidence in open investigations — such as those collected from break-and-enter or sexual assault crime scenes — to see if that particular arrestee is implicated in unsolved cases.

“We believe that the efficiencies obtained from the real-time analysis of an arrestee’s DNA sample has tremendous potential to improve public safety by focusing law enforcement investigative resources and assisting in identifying putative perpetrators before they are released from custody,” said Amy Hess, the FBI’s executive assistant director of science and technology in a statement before the U.S. House Judiciary Committee’s subcommittee on crime, terrorism, homeland security, and investigations in June.

The real-time notification of a DNA hit against open cases also conserves investigative resources, Hess told the committee, but it also means no time is lost in the investigation of crimes. “Equally as important will be the protection of the public when perpetrators are identified at the point of collection before being released back into their communities at the completion of the normal booking process,” she said.

Currently, in both the U.S. and Canada, federal laws require that accredited laboratories generate genetic data for addition to the national DNA databank in compliance with specific rules.
But “rapid DNA technology has been designed for use by law enforcement agencies at the point of booking for integration following live scan fingerprint enrollment of an arrestee,” Hess explained, adding any implementation must follow changes in the legislation.

In Canada, the potential use of rapid DNA at police stations will require fundamental changes in the law. “The way things work right now is that in Canada, when people are charged with a crime, they can be forced under a DNA warrant to give a sample, and when they’re convicted of a crime, they can be forced to give a sample for upload to the databank,” says Hageman.
Individuals cannot be forced to give DNA samples on arrest under Canadian law. “Whether or not that changes in Canada, that’s entirely in the lawyers’ and the politicians’ court,” she adds.

Criminal lawyer Ricardo Federico predicts that kind of change in law is next to impossible. “There’s nothing rapid about Canadian DNA evidence,” he says. “It’s illegal to do this. It’s not going to happen here; it’s not going to change. It would be unconstitutional in Canada to do that. That’s my view.”

James Lockyer, a criminal lawyer and founding director of the Association in Defence of the Wrongly Convicted, says collecting DNA samples from arrested individuals would constitute illegal search and seizure and violate the Canadian Charter of Rights and Freedoms.

Unlike the taking of fingerprints, which is not considered a violation of a person’s right to their body or identity, the revealing power of DNA samples are an invasion of an individual’s right to their person and privacy, says Lockyer. “It’s like a person doesn’t want their medical record available to the police. It just seems to me that the power of the state should always have limitations and one of them should be that your DNA is yours except through proper process.”

Lockyer also worries that if police have the power to collect DNA samples from arrestees, they’d be more likely to arrest people they have no real case against just to eliminate them as suspects. “It’d be very tempting to do that,” he says.

There’s no denying, however, that a larger DNA databank would help avoid wrongful convictions or even exonerate those who have been wrongfully convicted, says Lockyer. But “is that sort of rather vague prospect enough to justify DNA banks include just arrested persons? Not in my view, but it’s a policy decision.”

The rapid DNA technology isn’t meant for use at police stations alone. The idea is also that investigators can use the tool at crime scenes and mobile laboratories. Samples collected on the go may be added to the national DNA databank and possibly be linked to other crimes. “If somebody is a hit on a number of open break-and-enters or open sexual assaults, then, of course, that has amazing repercussions for investigators,” says Hageman.

For its part, the RCMP says the use of rapid DNA at crime scenes is years away. “Rapid DNA technology is currently limited in its ability to adequately analyze crime scene samples, which may be contaminated, degraded, or containing mixtures of two or more donors, limiting its usefulness in analyzing evidence collected at crime scenes,” said Sgt. Harold Pfleiderer, media relations officer for the RCMP, in an e-mail to Canadian Lawyer. “As with any new forensic technology, extensive research, validation, and training are required to ensure that results are scientifically valid and reliable before use in a court of law.”

Currently, the Centre of Forensic Sciences is the only institution in Canada using the rapid DNA technology for testing purposes, according to the centre’s director Anthony Tessarolo, who says his office purchased the technology this year. “We see this as a trend; we see this as a direction that forensic science and forensic DNA testing is likely to go. We want to be in front of it, so innovation is one of our key values.”

Advancement in DNA technology has meant distinguishing among individuals to a very high degree and being able to generate full DNA profiles from tiny samples. “From an investigator’s standpoint, we want all of that. We want the discriminating power, we want the sensitivity, but we also want it fast,” says Tessarolo.

Tessarolo emphasizes, however, that the Centre for Forensic Sciences wants to know the technology intimately before making recommendations about its use by police agencies. “We want to make sure we’ve done the rigorous testing, we’ve identified what the scientific limitations are behind it so that our investigators, police agencies, are not the guinea pigs,” he says.
“Sometimes, when new technologies come to market, it’s the police, the investigators that become the guinea pigs.”

The centre is now testing the device on what are called comparison DNA samples, which have been collected on consent or through court orders. With those samples, sample size and quality are not of concern, explains Tessarolo. The next step would be to test the device on discarded samples, such as cigarette butts and napkins thrown into garbage bins, which would be more challenging. Finally, it will test the rapid DNA technology on the most challenging of samples — those collected from crime scenes.

Currently, there is no software standard for the making of digital devices that produce evidence in court, says Sebastian Fischmeister, an associate professor at the University of Waterloo’s department of electrical and computer engineering. Fischmeister, whose work is around building software for automotive systems, medical devices, and avionics, also provides expert opinion on the reliability of software used in devices used to produce evidence for forensic use.

If admissible in court, the rapid DNA technology will be “an entirely new device” to enter courtrooms, says Fischmeister. The description of the device mostly details the safety of the hardware for mobile use, he adds, but he has so far seen nothing that shows the standard followed for software development that would ensure reliable results. “You’re not allowed to fly an aircraft in Canada, or put an avionics module in an aircraft, if it hasn’t been approved by Transport Canada. You’re not allowed to sell a medical device if it has not been approved by Health Canada and you don’t have a licence for it, whereas you’re perfectly fine to sell whatever device produces or claims to produce evidence in court,” says Fischmeister. “There’s no licence for it, there’s no standards for it, there’s no regulator for it.”

That’s unlikely to change, he says, as long as judges continue to accept evidence from devices that didn’t follow a mandatory standard.

Update: This version of the article has been updated to correct  the phrase "avionic model" to "avionics module" in Professor Sebastian Fischmeister's comments.

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Yamri Taddese

Yamri Taddese is staff writer for Canadian Lawyer and Law Times. She began her career with Carswell Media in 2012 and has also worked for the Toronto Star, Global Television, Berhan Television, and the Toronto Observer. Yamri can be reached at yamri.taddese@thomsonreuters.com.

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