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Report No. 271

B. United States of America

5.3 The Federal Bureau of Investigation in early 1990's designed the Combined DNA Index System (CODIS) with the purpose of amalgamating forensic sciences and computer technology into an effectual apparatus for solving serious crimes. This has been corroborated by the recent judgment of the US Supreme Court in Maryland v. King71 wherein it was held that when officers making an arrest for a serious offence are authorized to take and analyse a cheek swab of the arrestee's DNA and the same is legitimate under the Fourth Constitutional Amendment.

The Court observed: In addition the processing of respondent's DNA sample's 13 CODIS loci did not intrude on respondent's privacy in a way that would make his DNA identification unconstitutional. First, as already noted, the CODIS loci come from non-coding parts of the DNA that do not reveal the genetic traits of the arrestee. While science can always progress further, and those progressions may have Fourth Amendment consequences, alleles at the CODIS loci are not at present revealing information beyond identification.

5.4 In the United States, the type of crimes included in the database varies depending on the State. In some States many types of crimes are included and in others the database is restrictive and contains information pertaining to serious crime only.72

5.5 In Andrews v. State of Florida, 73 the DNA evidence was accompanied by Andrew's regular fingerprints left on a windowsill, and his identification by the most recent victim in a photo-lineup. In this case, the strong DNA evidence was admitted. In People of the State of New York v. Joseph CASTRO,74 a three-pronged test was developed to determine whether DNA evidence should be admitted:

I. Is there a generally accepted theory in the scientific community which supports the conclusion that DNA forensic testing can produce reliable results?

II. Are there techniques or experiments that currently exist that are capable of producing reliable results in DNA identification, and which are generally accepted in the scientific community?

III. Did the testing laboratory perform the accepted scientific techniques in analysing the forensic samples in this particular case?

5.6 In U.S. v. Matthew Sylvester TWO BULLS, 75 two additional standards added by the Court of Appeals to make a new five-pronged test:

I. Whether DNA evidence is generally accepted by the scientific community?

II. Whether the testing procedures used in this case are generally accepted as reliable if performed properly?

III. Whether the test was performed properly in this case? IV. Whether the evidence is more prejudicial than probative in this case? V. Whether the statistics used to determine the probability of someone else having the same genetic characteristics is more probative than prejudicial under Rule 403.

5.7 In the case of PEOPLE of the State of Illinois v. Reggie E. MILES,76 the evidence included regular fingerprints and semen stains, whose DNA was found to match Miles by scientists at Cellmark Diagnostics, a DNA identification company in Maryland. This case ended with a general strong support for DNA evidence and faith that the techniques can produce reliable results. In Daubert v. Merrell Dow Pharmaceuticals,77 after analysing the details of the standards of evidence previously set and the Federal Rules of Evidence, the Court put forth 5 criteria to characterize the weight of evidence:

I. Whether the theory or technique has been tested?

II. Whether the theory or technique has been subjected to peer review and publication?

III. Whether the theory or technique has a known or potential rate of error.

IV. Whether the theory or technique has standards for controlling the technique's operation.

V. The degree to which the theory or technique has been accepted in the relevant scientific community.

Human DNA Profiling - A Draft Bill for the Use and regulation of DNA-based Technology Back

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