Ethical-legal problems of DNA databases in criminal investigation.

Introduction

Advances in DNA technology and the discovery of DNA polymorphisms have facilitated the creation of DNA databases of individuals for the purpose of criminal investigation.(1)

Therefore, a considerable range of possibilities have been opened up for criminal investigation, and if we compare the DNA analysis of evidence found at the crime scene (for example blood, hair, saliva, sperm, etc) with the analysis of samples which make up the database, we can locate the possible perpetrator of the crime

Logically, as the number of citizens whose DNA has been analysed and included in a database increases, the probability of locating suspects also becomes greater.

Some European countries have just legislated, or are drafting laws, with the aim of regulating databases. In the United Kingdom, the implementation of such laws is more permissive than elsewhere in Europe and "any recordable offence" can be included in the database. The database has 263,000 entries by now (it was created in 1995) and it is expected that it will eventually contain the data of five million individuals. Whereas, in countries such as Holland, Germany, France or Austria only individuals who have committed certain serious crimes are included.(2) In other European countries, there is no legal regulation as yet on the subject but in many of them (ie Spain, Portugal, some Scandinavian countries) specific legislation on this subject is being discussed and it is expected to be produced within the next couple of years. In the United States, the type of crimes included in the database varies depending on the state. In some states many types of crimes and offences are included and in others the database is more restrictive and only contains information pertaining to serious crimes.(3)

When an individual is being tried for a crime, a blood sample or saliva, which is collected using a small sterile cotton swab, are normally used. There is a huge difference between countries as regards the compulsory giving of a sample where criminal prosecution is concerned. In general, in South European countries, when an individual refuses to submit to DNA testing the taking of a sample by force is not permitted while in North European countries the sample cannot be withheld.

Many ethical and legal problems arise in the preparation of a DNA database and these problems are especially encountered during the analysis of the legal regulations on the subject.

There is general agreement about the fact that research in human genetics can affect the whole community,(4) and therefore, it is legitimate that the community itself and not only its scientists, should debate and decide what it is prepared to accept or reject.

In this paper, three main groups of possibilities are analysed when dealing with databases. The advantages and drawbacks of each system are compared, and the controversial issues which are raised are then examined:

1. A system based on a general DNA fingerprinting analysis of the population and a conservation of the DNA profile analysis of all the evidence found at the crime scene.

2. A system based on the DNA analysis of samples for a particular list of crimes only and the recording of the DNA profiles of all the evidence found at the crime scene for these particular crimes.

3. A system based only on the specific analysis of a case, the taking of samples from an individual who is known to be connected to a fairly high degree with the crime under investigation, and a comparison of the evidence which has been collected in this particular investigation.

When discussing the advantages and disadvantages of these systems the following main issues should be considered: individuals who should be included in the database; individual consent to the taking and use of samples; connection which the subject undergoing the test has with the crime under investigation; length of time results remain in the database, and information which an analysis of this kind entails.

1. DNA databases involving analysis of the general population

In order to proceed with the maximum efficiency in criminal investigation, a file would be needed with the genetic fingerprinting of the greatest populational span possible.

The procedure would be as follows: At the crime scene the traces and/or biological evidence which the perpetrator of the crime leaves are collected and analysed. By comparing the DNA of these samples with that of the samples stored in forensic laboratories, highly satisfactory results can be obtained in criminal investigation.

The compilation of a general file on the population has the aforementioned advantage, but also presents two drawbacks which must be accepted by the state adopting the system: the first drawback which we have already referred to as characteristic of this "universal" system of databases, is the high economic cost …