Law Enforcement use of Genealogical (DNA) Databases (Part 1).

     There has been considerable writing over recent months concerning the use, by law enforcement investigators, of genealogical DNA databases as a tool for the solving of cold case serial crimes, such as homicides and sexual assault, and whether the use of such databases for non-genealogical purposes is at odds with the purpose for the creation of the databases in the first place, and constitutes a moral and/or ethical dilemma. And while there is varied opinion over whether law enforcement should use these databases at all, it is becoming apparent that the use of these databases to solve cold case crime is continuing to grow, and being seen by law enforcement as a viable way to identify suspect/s when other avenues of suspect identification has been exhausted.

     This post will attempt to provide the theory behind how and why law enforcement investigators have turned to genealogical DNA databases as a tool for suspect identification and demonstrating, through a theoretical example, how the use of genealogical DNA databases to identify DNA ‘matches’ to a suspect, is no different to other tools used by investigators to identify suspects. This post will not consider the moral or ethical debates surrounding the use of these databases by law enforcement, a topic that may be considered at a later date, nor should this post be construed as an endorsement, or otherwise, of the use of these databases by law enforcement. Rather, it is the presentation of the facts surrounding the use of the databases for the reader to make up their own mind as to whether they support, or not, the use of the databases by investigators in the identification of cold case crime suspects.

     As this post contains information that is of direct concern to genealogists and family historians that use genealogical DNA databases for family history research, it is necessarily very lengthy in order that all issues that need considering are addressed. As such, I have decided to divide this post into three (3) Parts. Part 1 will look at the obligation on law enforcement investigators when it comes to obtaining DNA evidence from a suspect and how that DNA evidence is presented in Court. Part 2 will look at the role genealogical DNA databases play in assisting law enforcement investigators to widen and then restrict a suspect pool, and Part 3 will bring these two aspects together, and look at the degree to which the actual DNA profiles within genealogical DNA databases can be used in Court as direct evidence to assist in proving the guilt of a suspect in a crime, and whether family historians should have concerns about the way these databases are being used.

     The legislation, policies and ‘Standard Operating Procedures’ (SOPS) that law enforcement investigators need to adhere to when presenting evidence in a Court of law is necessarily restrictive, as it is the job of the prosecution to prove their case against an accused person ‘beyond a reasonable doubt’ under the rules of evidence. The accused person is not responsible for proving their innocence in that court of law. The introduction, by the prosecution, of a piece of evidence in Court, which would include DNA evidence, needs to have been obtained and presented in such a way that the prosecution can establish a ‘chain of custody’ that would indicate that the evidence is not ‘tainted’.[1] In other words, the prosecution needs to show that they had control over the evidence from the start, up to presentation in Court, and that it was obtained, handled and analysed in accordance with relevant legislation, policies and SOPS. Once the defence can show that somehow evidence is ‘tainted’, that piece of evidence can be ruled inadmissible and removed from being considered as part of the prosecution case. With reference to DNA evidence, therefore, there are strict guidelines as to how DNA evidence, which includes DNA obtained at a crime scene and from a suspect, should be obtained, in what circumstances it can be obtained, and how it should be handled and analysed to ensure that there is an adequate chain of custody in order that the evidence will not be excluded from the prosecution case in Court.[2]

     The Crimes (Forensic Procedures) Act 2000 (NSW), which is also representative of legislation of the other States of Australia, and of a similar nature to Acts found in countries such as the United States of America and the United Kingdom, sets out the circumstances under which DNA evidence can be obtained from a suspect for comparison with DNA evidence found at a crime scene. The following are the legislative requirements that are placed on law enforcement investigators to ensure that DNA comparison evidence can be admitted in Court as evidence:

• That the offence for which the suspect has been arrested constitutes an offence,[3]
• That there must be reasonable grounds to believe that the obtaining of DNA evidence might produce evidence that may either prove or disprove the suspects involvement,[4]
• That the suspect is suspected of having committed the offence,[5]
• That the taking of a DNA sample from a suspect must be taken by a suitably qualified person,[6]
• That any analysis of DNA taken from a suspect be undertaken on a ‘DNA database system’ that includes the following indexes: crime scene index, missing person index, offenders index, suspects index, unknown deceased persons index, and volunteers index.[7]

     These requirements aid law enforcement investigators in taking and analysing DNA samples from suspects in a way that ensures a rigorous control process, thereby minimising the possibility of evidence being tainted. The implication here, is that the only DNA analysis and/or comparison between suspect and crime scene that will be admissible in Court, will be that analysis and/or comparison that is completed in a controlled environment and by way of a forensic DNA database that is under the control of law enforcement agencies. There is no scope here for the use of genealogical DNA databases to provide any direct DNA evidence that would be admissible in a Court of law. There are just too many uncontrolled circumstances in the taking of DNA, the handling of that DNA and the subsequent analysis of that DNA for ultimate inclusion on that genealogical database. A chain on continuity of evidence does not exist for a genealogical DNA database, and as such any evidence obtained from a genealogical DNA database for Court purposes could be ruled as tainted.

     So, in considering this, how exactly do genealogical DNA databases play such a major role in the apprehension of suspects of cold case serial crimes to the point that they attract the media attention that they do? If the evidence of genealogical DNA databases can be deemed ‘tainted’ and as such inadmissible in a Court of law, how are suspects identified and placed before Courts up to 30 years after the crimes were committed when the suspect pool has been dry for so many years? And based on law enforcement use of genealogical databases, should genealogists and family historians who regularly use genealogy DNA databases for family history research be concerned about their DNA data? These questions will be looked at in Parts 2 and 3 of this post.     

Endnotes:

[1]     The term ‘tainted’ is a legal term relating to the implication that evidence presented in Court is inadmissible as it was obtained, directly or indirectly, by illegal means (not in accordance with legislation, policy or SOPS). See for example, Bryan A Garner (ed), Black’s Law Dictionary, 10^th edn, United States of America, Thompson Reuters, 2014, p. 678.

[2]     In New South Wales, Australia, the legislation that governs the handling of DNA evidence and subsequent presentation in Court is the Crimes (Forensic Procedures) Act 2000. Any specific reference to legislation in this post will be with reference to this legislation.

[3]     Crimes (Forensic Procedures) Act 2000 (NSW), s.11(3)(a).

[4]     Crimes (Forensic Procedures) Act 2000 (NSW), s.11(3)(b).

[5]     Crimes (Forensic Procedures) Act 2000 (NSW), s.11(3)(c).

[6]     Crimes (Forensic Procedures) Act 2000 (NSW), s.50.

[7]     Crimes (Forensic Procedures) Act 2000 (NSW), s.93. This requirement suggests that there should be in existence a DNA database that is for the sole use of law enforcement agencies, that is under the sole control of law enforcement agencies.