The Fallibility of DNA Evidence

A New York Time article today highlights proof by Israeli researchers that DNA evidence may not be such a sure thing, after all:

The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.

“You can just engineer a crime scene,” said Dan Frumkin, lead author of the paper, which has been published online by the journal Forensic Science International: Genetics. “Any biology undergraduate could perform this.

Tania Simoncelli, science adviser to the ACLU adds:

“DNA is a lot easier to plant at a crime scene than fingerprints,” she said. “We’re creating a criminal justice system that is increasingly relying on this technology.”

- Garry J. Wise, Toronto

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U.S. Supreme Court Denies Constitutional Right To DNA Testing

Another sad day for American justice, as a narrow 5-4 majority of the U.S. Supreme Court holds that the due process clause of the U.S. Constitution's Fifth Amendment does not guarantee prisoners access to potentially-exonerating, post-conviction DNA testing:

[Chief Justice John] Roberts, joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr., said ..."A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man," he wrote, and thus states have more "flexibility" in deciding procedures for post-conviction relief.

...The "challenges DNA technology poses to our criminal justice systems and our traditional notions of finality" are better left to elected officials than federal judges, Roberts wrote for the majority in a 5 to 4 decision.

The compelling dissenting argument of the Court's moderate wing held little sway with the majority:

Dissenting justices, led by John Paul Stevens, said the right to post-conviction DNA testing should not depend on the widely varying laws enacted by the states. Allowing a prisoner to test DNA evidence at his own expense would "ascertain the truth once and for all," Stevens wrote.

"On the record before us, there is no reason to deny access to the evidence and there are many reasons to provide it, not least of which is a fundamental concern in ensuring that justice has been done," he wrote. He was joined in dissent by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The full, Washington Post article is here

- Garry J. Wise, Toronto

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DNA 'Infallibility' Questioned

A Los Angeles Times article suggests that the odds of unrelated persons sharing similar DNA profiles may be considerably higher than previously believed:

State crime lab analyst Kathryn Troyer was running tests on Arizona's DNA database when she stumbled across two felons with remarkably similar genetic profiles.

The men matched at nine of the 13 locations on chromosomes, or loci, commonly used to distinguish people.

The FBI estimated the odds of unrelated people sharing those genetic markers to be as remote as 1 in 113 billion. But the mug shots of the two felons suggested that they were not related: One was black, the other white.

In the years after her 2001 discovery, Troyer found dozens of similar matches -- each seeming to defy impossible odds.

- Garry J. Wise, Toronto

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