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 REVIEW OF THE EVIDENTIARY
VALUE OF DNA EVIDENCE

Veena Nair*

ABSTRACT

One of the most potent means of social transformation in the preceding 2 0 th

century has been the rise of computers and information technology which
brought about changes in not only elite societies but also the poorer sections
of the society. ForensicDNA testing and DNA databasingare the creations
of the digital era which will continue to contribute substantially to
resolving problems or disputes arising under civil or criminal laws. Though
initially relying upon expert testimony based on DNA evidence the Courts
of India have evolved to accept DNA evidence as both 'relevantfact' and
'conclusive proof. This paper discusses the manner in which the
appreciationof technology-based evidence differs in the orientalcountries
and their occidentalparts,the different stages in the acceptanceof the DNA
based evidence in India and the effects of the Judgements passed by the
Hon'ble Supreme Court of India upon the society and the upon the ruling
polity and concludes by highlighting the lacunae in legislation or its
applications and by suggesting solutions where applicablefor effectively
using this technology for speedily resolving disputes in the Courts of law in
India.

*Advocate and Research Scholarunder the aegisof Dr. ShraddhaPandey, MATS University,
Raipur. The authorcan be reached at vinanair2o@gmail.com.
 Nirma University Law Journal: Volume-6, Issue-l, January-2018

Keywords: Frye Rule, Relevant Fact, Conclusive Proof,DNA Fingerprint

Database,Expert testimony.

INTRODUCTION

"Genetic Science produces truthful facts about human identity, and that
establishing the truth in matters of identity is equivalent to ensuring
justice.2

A case in illustration based on the above quote will show the manner in
which, DNA fingerprinting or DNA typing was introduced into the legal field
and how the concept of forensic DNA changed the process of identification of
unknown humans or human remains and ensured that justice was done in
the said case. The very first time that the finding based on the DNA
fingerprinting technique was used, was in the case of Sarbah vs. Home
Office, Ghana Immigration case3 in 1985 when geneticist Alec Jeffreys' gave
expert DNA evidence to establish the relationship between a mother and a
son. Alec Jeffreys had designed and developed the DNA fingerprinting test
using multilocus probes. He was able to establish that the DNA banding
pattern coming from the samples of Andrew and his three other siblings
were a match with that of their mother. And it was highly improbable (about
1 in 6ooooo times) that such a match could exist between Andrew and his
aunt Christiana. The immigration officials' accepted the finding that indeed
Sarbah was Andrew's mother and not Christiana (Sarbah's sister) which had
been the single most difficult assertion to prove till Alec Jeffreys and the
DNA test devised by him came to the mother and son's rescue. As a result of
this finding, the immigration officials decided that Andrew should be
allowed to emigrate in order to live with his mother from, Ghana, where he
was living with his aunt.

' Sheila Jasanoff, Just Evidence: The Limits of Science In The Legal Process,34 J. LAW, MED &
ETHICS 328, 332 (2006).
2Id.

Rana Saad, Discovery, development, and currentapplicationsof DNA identity testing (Feb. 2
2018), http://www.ncbi.nlm.nih.gov/pmc/articles.
4 Biography of Professor Sir Alec Jeffreys, Department of Genetics and Genome Biology,
UNIVERSITY OF LEICESTER, https://www2.1e.ac.uk/departments/genetics/jeffreys/biography.
REVIEW OF THE EVIDENTIARY VALUE OF DNA EVIDENCE

In the above case, a scientific technique had enabled to identify the

relationship between an unknown human and his parent, thereby
establishing the child's identity, and in the process of doing so, the technique
had established itself as a tool of assistance in forensic sciences. This was
possible because of the principle behind the technology according to which
sexually reproducing organisms are genetically unique'. This means all
individuals carry the same information within their genomes 6, but the
genomes are sequenced differently in each individual and any tissue samples
of unknown origin can be compared to those of a test sample with the help of
DNA typing. The power of the technique lies in exclusion'. This means that a
single difference between the scene of crime sample and the suspect can
prove the absence of connection and hence exclude the innocent or exclude
any direct relationship (as the case may be). If a perfect match is found, then
the probability of finding that same genotype by chance in the population
can be calculated, provided that the frequencies of the alleles involved are
known for that population. This is because except for identical twins the
genotypes of all persons are varied, essentially; therefore the culprit is easily
detected from even amongst a large population. Similarly, if the genetic
profile of children is found to be the composite of their parents, paternity or
maternity can be established. Although DNA analysis is called DNA
fingerprinting, this term is a misnomer. Because the entire DNA structure of
billions of compounds cannot be evaluated in the same way that an entire
fingerprint can, a "match" resulting from DNA typing represents only a
statistical likelihood of identifying the individual from a sample population.
Thus, the results of DNA typing are not considered absolute proof of identity.
A DNA nonmatch is however considered conclusive,9 because any variation

How does sexual reproductiongenerate genetic variation,Biosciencesfor Farming in Africa,

available at http://b4fa.org/bioscience-in-brief/introduction-genes-crops/how-does-sexual-
reproduction-generate-genetic-variation.
6 What is a Genome?, NATIONAL LIBRARY OF MEDICINE. Nov 14, 2017, available at
https://ghr.nlm.nih.gov/ primer/hgp/genome.
7 BERNARD.R.GLICK, JACK J.PASTERNAK,, MOLECULAR BIOTECHNOLOGY PRINCIPLES AND
APPLICATIONS OF RECOMBINANT DNA. (2nd Ed., 2003).
' NoRAH RUDIN, KEITH INMAN, AN INTRODUCTION To FORENSIC DNA ANALYSIS, 7-8 (2nd ed.,
2001).
' DNA Evidence Basics: Possible Results from Testing. NATIONAL INSTITUTE OF JUSTICE (Aug. 9,
2012).
 Nirma University Law Journal: Volume-6, Issue-l, January-2018

in DNA sequence means that, the DNA samples have been drawn from
different sources.

Notably, in the above case, legally, it was 'expert evidence' that led to prove
the relationship between the two humans.

BASIS FOR ADMITTING SCIENTIFIC EVIDENCE IN THE

COURTROOM

For nearly 70 years the criterion used to evaluate and determine the
admissibility of expert testimony in the courts worldwide was the so-called
'Frye Rule'. Under the Frye Rule, the Courts were simply required to
determine whether the expert's methodology was generally accepted in the
relevant scientific community. The Frye Rule did not specify the rule clearly
and posed a significant ambiguity: what is the relevant scientific community
and who defines it? In Frye vs.US (1923)10, the court of Appeals the District
Court of Columbia noted, "Just when a scientific principle/discovery crosses
the line, between the experimental and demonstrable stages, is difficult to
define. Somewhere in this twilight zone the individual force of the principle
must be recognized and while the courts will go a long way in admitting
expert testimony deduced from a well-recognized scientific principle or
discovery, the thing from which the deduction is made, must be, sufficiently
established, to have gained general acceptance in the particular field in
which it belongs".

In spite of the revealed ambiguity, the Frye rule continued to be applied for
more than 70 years after which the courts began to repudiate or seriously
question it and loosen the requirements for expert opinions or testimony. In
1975 new Federal Rules of evidence were introduced which mainly focused
on three requirements:

i. Specialized knowledge based on experience training or education,

allowing an expert to assist the trier of the fact.

293F. 1013 (D.C. Cir. 1923), availableat http://www.supreme.justia.com.

REVIEW OF THE EVIDENTIARY VALUE OF DNA EVIDENCE

ii. This expert's obligation to disclose the reasoning behind the factual
opinions of cross-examination.

iii. The requirement for juries rather than experts to decide ultimate issues
in criminal cases.

Based on the above three criteria, the American Courts, found the Frye Rule
to be incompatible with the Federal rules regarding evidence. Thus, the
Federal Rules replaced the stringent criterion of the Frye Rule for admitting
scientific evidence. In the United States of America, the adversarial system
(derived from trial by combat)11 is followed and the jury has to be convinced
by the lawyers of the litigant parties of the rightness of one side of the case
and the wrongness of the other side of the case. The jury is composed of
laypeople who do not possess any qualifications in interpreting the evidence.
This leads to failure in using the evidence sensibly, and some of the first
cases using genetic fingerprinting evidence were dismissed because the
defense raised unwarranted doubts in the minds of the jurors, while the
prosecutors made extravagant claims which they could not support. It is for
this reason, that, forensic evidence, is presented in a formalized way, which
is not open to criticism. It should be noted that the technology had been in
its infancy and the developments associated with the technology such as
databases or databanks had not come into existence at that point in time.
Genetic science was not widespread and was studied and researched into by
a specialized category of people and there were not many people who knew
what the technology was or what were the implications of the technology's
applications.

It was not until Daubert vs. Merrel Dow Pharmaceuticals, Inc., that, the
courts, propounded the principle of 'reliability' of the expert testimony along
with the 'relevance' of the scientific expert's testimony. This means that the
expert should be able to provide evidence that is relevant to the case in hand
as well as the method used by the expert to arrive at the conclusion should be

" The similar system is followed by the Legal Systems of England and India as opposed to the
inquisitorial system followed by France.
 Nirma University Law Journal: Volume-6, Issue-l, January-2018

a reliable one. The relevance factor is an essential criterion to determine the

necessity of any 'fact' in determining the correctness of any fact or
connection to a fact or to determine whether any fact has been left out
without being considered. Whereas the reliability factor is essential to
determine whether any other person who is carrying out the same scientific
experiment by using the same method will arrive at a conclusion that is
similar to the one the previous expert had arrived at. Though the relevance of
expert evidence is based on the facts of the case as determined by the
inquirer or investigator, the reliability of the scientific evidence is based on
the methods used by the scientific community while conducting an
experiment. If the methods adopted by the scientific expert and others
belonging to the scientific community are reliable then the conclusions of the
same experiment conducted at the different times using different methods or
the same experiment conducted by different individuals at different times
using different methods should yield the same result. This criterion is
followed by the scientific community in order to establish a standard
procedure or protocol so that any errors caused due to sampling procedures
or manual errors are minimized effectively. The standard protocol also
allows conducting of the experiment by a person who has no specialization in
the topic by simply following the steps outlined in the protocol. In all the
three conditions enumerated above, it is the reliability of the method used in
the protocol that gives rise to reliable results, which means, methods because
of which the experimental errors have become negligible. In legal parlance
(according to majority opinion) reliable means derived by 'scientific method'
and supported by appropriate validation. From the above discussion it also
seems to be true that the Frye Rule had been dangerously restricted, given
the fundamental theoretical disagreements found in many areas of science,
the subsequent rejection or substantial modification of virtually all theories
deemed thoroughly reliable in the past, and the fact that even the best new
ideas would take time to be understood, accepted and properly developed
amongst particular communities of researchers.
REVIEW OF THE EVIDENTIARY VALUE OF DNA EVIDENCE

Also, in Daubert, the court had made it clear that the intent of the ruling had
been to make the judge the 'gatekeeper' to determine the admissibility of
scientific testimony in a case. Amongst the criteria given (to define
appropriate validation) were:

i. Testability of the theory or scientific technique

ii. Peer review and publication

iii. The known or potential rate of error

iv. General acceptance, (not as the exclusive criterion as in the Frye Rule)
but as part of the court's assessment of reliability.

This decision is interesting because it requires that judges apply the criteria
of, the reliability of scientific theory, specifically, their record of successful
experimental verification (balanced against their record of refutation).This
means that Judges are responsible for sifting the scientific expert's opinion
and no matter how logically correct it may be scientifically unless the opinion
passes the test of admissibility according to the framed Federal Rules, they
cannot be accepted as evidence. It would be interesting to note that the
Indian courts had been following these principles while adjudicating cases
where expert scientific DNA evidence was required despite there being no
such rules or laws specific to scientific evidence and their admissibility. Their
surmises and rationale in such judgments were based on the provisions of
the Indian Evidence Act, 1872 on the relevancy of facts and the grounds of
opinions of experts.

It is equally interesting that the evidence that Merril Dow tried to exclude
because of an alleged failure to meet requirements of the Frye Rule; evidence
that proved decisive in finding Merril Dow liable; ultimately turned out to be
unreliable. Given that, this centered upon a single paper describing a single
animal test, showing two out of eight rabbits receiving high doses of a
chemical similar to the one under consideration in the case with foetal
abnormalities, while a large body of published data described many properly
 Nirma University Law Journal: Volume-6, Issue-l, January-2018

constructed experiments showing no significant relation between the actual

chemical and birth defect claimed by the plaintiff to be caused by it. This
means, in Daubert, the evidence, which Merril Dow tried to exclude, since,

* it did not satisfy the Frye Rule

it showed that many properly constructed experiments showed no

relation between the actual chemical and the birth defects

and the single experiment that proved that there existed a relationship
between the fetal abnormalities and the similar chemical as above under
consideration in the case turned out to be unreliable.

This 'relevant fact', which was not adduced as evidence, and which proved to
be decisive in finding Merril Dow liable, did not satisfy either Frye Rule nor
did it comply with the principles of Federal legislation in the matter of
reliability of the expert's opinion. Thereby, the courts were put into a more
responsible position of deciding, whether and how to admit scientific
evidence now that both the rules had been contradicted. Incidentally, it was
only the role of the Judge as 'gatekeeper', which had exposed the
inconsistencies in the legislation, as well as the criteria, used to admit
scientific evidence.

In effect, it became essential to frame a criterion for admitting scientific

evidence in order to enable the establishment of a uniform standardized
procedure universally for a particular scientific technique so that its
reliability can be enhanced world over, advancements can be incorporated
into the technique and amendments accordingly made in the respective
legislation simultaneously. This is especially true with respect to DNA
technology since there is a need for a standardized protocol for performing
the DNA typing test so that a uniform formal report can be prepared and
presented before the courts. Such a protocol would not require experts in
different methodologies to conduct the experiment to testify separately
before the courts each vouching for the accuracy and reliability of their
REVIEW OF THE EVIDENTIARY VALUE OF DNA EVIDENCE

method of arriving at the same result or interpreting the results to arrive at a

common conclusion. In India, though the reliability of expert testimony is
not in question now, in the initial stages of admitting DNA evidence it had
been an issue. The Hon'ble SC of India had questioned the Senior Scientist
Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad regarding
the method used for conducting the DNA test and whether the test result
would be as reliable if it had been produced by any other method. To which
the scientist had answered in the affirmative adding that the credibility of the
institute the doer of the test and the method of the test would have to be
taken into account if the reliability of the test had to be examined and the
dependability of the results and their interpretation by the expert witness
made acceptable.

IMPACT OF DNA TECHNOLOGY ON THE COURTS

Until 2005 the Hon'ble Supreme Court of India and the High Courts of India
had not admitted DNA evidence in matrimonial disputes and with regard to
issues of a paternity dispute. But after 2005 the Courts in India have started
considering DNA evidence, not an expert opinion but as a relevant fact under
Sec.4 of the Indian Evidence Act, from which it can be gathered that the
conclusiveness of DNA testing and accuracy of the test was never doubted by
the Indian Courts, rather the lack of corresponding legislation or the
presence of opposing legislation or strict prohibition in the laws was the
reason for their reluctance to accept this form of evidence. The admissibility
of DNA evidence in criminal cases is only one of the contexts that has
gradually found acceptance amongst the legal fraternity completely. The
current DNA Bill pending in the Indian Parliament consists of provisions for
creating DNA databases consisting of DNA profiles of certain classified
category of persons but is singularly silent about the manner in which this
Database is to come into existence especially with regard to the scientific
criteria for creating the DNA profiles. The Bill only delineates the 13 loci for
identification of people by DNA typing whereas such delineation may result
in erroneous interpretations of the results of DNA typing unless allelic
 Nirma University Law Journal: Volume-6, Issue-l, January-2018

frequencies are included during interpretation of results. In India, DNA

testing does not include interpreting the allelic frequency during
interpretation of results. This is another major drawback of the DNA typing
scenario in India. This is because there is no study undertaken to determine
the genetic loci of the Indian population which will give increased efficiency
in differentiating between two DNA samples. For this legislative policy must
provide that a population consensus for finding the gene frequency in the
Indian population be conducted compulsorily and be made available in the
public domain. The pending DNA bill of 2016 could incorporate this
condition and similar to the manner in which details for Aadhaar were
collected, the sample populations could be chosen in each State by the
authorized professionals and the heterozygous allelic frequency of genes
typical to the Indian population could be ascertained. This, in turn, can be
used to create a forensic DNA database of the Indian population. Rules to
this effect could be made by each State and accordingly, competent
professionals could be selected by the State machinery.

In a vast country like India consisting of many ethnic groups and various
sects of the populace a single, unitary and centralized database could pose a
risk sufficient to merit deliberative measure for the institutionalized creation
of the database. Such a measure would require segregating each category of
the classified persons whose DNA profiles are to be stored in the Database
and allocating them to a specialized institution and access to the database
limited by Statutory provisions as well as executive instructions, such that at
one time only a single person holds the key to the database. And in order to
maintain confidentiality, the Database key could be restricted to a particular
number and category of individuals. This is also one of the reasons for the
insistence of genetic specific legislation since DNA technology and its
applications are opening many more avenues which will require
deliberations by many different professionals related to various fields. Since
the technology has applications in many fields the use of the technology will
be based on its ability to provide useful know-how related to that field or
when it is used for solving any civil or criminal disputes arising out of the
REVIEW OF THE EVIDENTIARY VALUE OF DNA EVIDENCE

peculiar applications in the field. This will result in DNA evidence being
accepted under different heads and under different circumstances.
Therefore, the courts would be under even greater pressure to understand
the genomic evidence, to determine which expert testimony to accept when
faced with contradictory opinions from experts and which rule of evidence to
apply if there is no genetic specific legislation. This is because the range of
subjects to which an expert testimony is directed and which is under judicial
scrutiny is not limited to purely scientific so long as the methodology is
science-based and secondly the court may extend its 'gate keeping' role to the
expert's conclusions and not simply his methodology. Thus, this places the
courts in a more powerful position in the event of the absence of legislation
since they can reject the expert opinion or can select an expert opinion of
their choice without regard to the scientific propositions or principles.
Finally, the trial court's order is subject to reversal only if it is arbitrary and
there is no other supporting material on record. And further, even if any
subsequent scientific evidence is adduced it would come under scrutiny in
the same manner as the previous evidence and may be rejected or adversely
inferred from. The presence of a significant subjective factor in the
gatekeeper's role poses a real risk of differing results depending on the
idiosyncrasies or predisposition of the trial judge. Thus, scientific evidence
which would gain admissibility in one courtroom might be rejected in
another.

The other side of the coin is that both nature and nurture together contribute
towards the genetic development of individuals, which means a human being
is a sum of the interactions of genes with the environment and the genes
among themselves. Therefore how much reliability should be placed on
genetic evidence alone or in other words how much of the genetic evidence
can be believed by the courts as being applicable in a case will have to be
decided by the courts in complicated scientific cases. This is why the trial
courts and the courts of appeal will have to possess a sufficient level of
scientific sophistication to assume the 'gate keeping' role in determining
complex scientific issues as well as possess the ability to scrutinize expert
 Nirma University Law Journal: Volume-6, Issue-l, January-2018

testimony to find it reliable and relevant, despite the subjectivism of the

Judge. Being the only forum to which the people look up to seeking redress
of their grievances it is essential that the Judges arrive at proper conclusions
so that they can give constructive decisions which will not hinder scientific
progress and at the same time harmonize it with the commercial aspects of
uses of science. This is possible by sensitizing the judicial and legal
community about the changing rule of the law in light of new genetic
discoveries and testing methods. Primers reviewing DNA and genome
science could be written, memorable cartoon drawings could simplify
sophisticated concepts, and video background resources could explain
genetics in meaningful non-scientific ways. Difficult concepts could be
reduced to plain English and conveyed to Judges through innovative
technologies, including live, videotaped, or interactive Internet-based
testimony. These approaches can easily be presented while simultaneously
ensuring that complex scientific evidence is afforded the utmost of
seriousness. Otherwise, the socio-economic development of society will be
hindered in addition to placing a heavy burden upon the courts to resolve
disputes of new natures presented before them with increasing
complications which would take up considerable time. This contradictory
situation of being powerful enough to reject expert testimony and burdened
for resolving newly arising conflicts due to the evolving nature of scientific
evidence, in which the courts would find themselves can be prevented only
by passing genetic specific legislation. Though the Courts in India have
ordered for DNA tests in paternity cases and have compelled the litigants to
undertake DNA tests in the interests of justice, they are aware of the need for
'informed consent' in cases of genetic testing. Informed consent is given by
the litigant for undertaking a DNA test being aware of the implications of
having a DNA profile made. Even a minor can have his DNA profile made.
Herein, is a new aspect of privacy termed genetic privacy which grants an
exception as to when a genetic testing can be undertaken without it being
considered an intrusion upon the privacy of an individual? The conditions
when such an exception can be utilized will have to be enumerated in order
that the courts can resolve disputes speedily.
REVIEW OF THE EVIDENTIARY VALUE OF DNA EVIDENCE

DNA EVIDENCE IN INDIAN COURTROOMS

In countries like India where trained judges and not juries try to establish
facts from the evidence presented before them, it becomes very important
that the judges are well informed about the validity and the reliability of
technological evidence like that of DNA fingerprinting. They must also know
about the technique that has been used and what the results mean and what
errors of sampling may arise that can be set right and which are the errors
that cannot be corrected. Accordingly, based on such errors what would be
the rate of deviation from correct results being presented before them as
evidence. Though currently DNA evidence is accepted in the Indian
courtrooms it is not as widespread or accepted as in other countries. Courts
do not, as a matter of fact, seek DNA evidence. Then there are provisions in
the related statutes which have been amended to include this technology for
increasing the efficacy in administering justice. But there are many reasons
that impede the free admissibility of this technology, which are as below:

i. There is not sufficient awareness about this technology amongst the law
enforcement personnel

ii. There are not well-equipped laboratories which can perform the DNA
sample testing

iii. There are not many experts in proportion to the backlog of cases, who
can perform DNA typing and give results

iv. There is no standardized protocol for DNA typing (except in a few labs
in the whole of India) so the labs which do perform DNA typing use
different methods to arrive at the results. Since it is the accuracy of the
technology that is responsible for its admissibility in the courts, the use
of varying protocols makes it unreliable or reliable only as secondary
evidence or as a technology which experts rely on and when they give an
opinion as to its accuracy. The protocol used must be of international
standards and it must be regularly updated to keep in sync with foreign
laboratories and DNA techniques used abroad.
 Nirma University Law Journal: Volume-6, Issue-l, January-2018

v. The most common DNA sequence analysis done is that of nuclear DNA,
but there are other sources of DNA too which can be analyzed and used
in establishing familial association; for example, mitochondrial DNA
can be used to establish maternity of the offspring. The personnel
involved in DNA typing examination must be people well versed in
genetics which means an entirely new field of professionals must be
trained and appointed for the collection of samples for DNA testing,
who are similar to professional's who are currently operating labs using
this technology.

In this context, it is interesting to note that The Hon'ble Supreme Court

of India in the case of Narendra G.Goel Vs.State of Maharashtra and
Another (20o9)6 SCC had accepted that the prosecution can rely on
Mitochondrial DNA test to identify a murdered woman and to ascertain
the culpability of the accused and this would not affect the rights of the
accused in any manner. And in order for that it had held that, the
complete report, after the examination, of the materials collected during
investigations in India, including the report of the Mitochondrial DNA
test, conducted by the Office of the Chief Coroner of Ontario Laboratory
was admissible as evidence or not would be an issue to be decided by the
trial court in India. The evidentiary value of the evidence so adduced by
the prosecution could be tested during the trial and the accused did not
have any right to be heard at the pre-trial stage of the investigation.

vi. There must be a special forensic team of well trained and knowledgeable
genetic professionals, other than the law enforcement personnel, who
must be assigned the task of collecting DNA samples, storing them and
transporting them to labs for conducting the test.

vii. There is found at the scene of crime secondary DNA which is DNA from
other sources and which is difficult to separate from primary DNA left at
the crime scene by the victim and the suspect. Only an expert in DNA
forensic analysis can distinguish and make sense of DNA evidence in
such cases. Then there is the claim of foreign law enforcement personnel
REVIEW OF THE EVIDENTIARY VALUE OF DNA EVIDENCE

borne out of their experiences of working in crime scenes that DNA is at

its best circumstantial evidence and can only remain a relevant fact that
draws its support from expert testimony. Therefore, if it is an expert
who knows what kind of DNA should match what probe or what other
DNA sequence then it becomes difficult to decide whether the evidence
being interpreted by the expert is original or fabricated. Therefore, there
should be a team from the law enforcement which has a fair knowledge
of the other circumstantial evidence and therefore can assist the judge
in deciding how much weight should be accorded to DNA evidence or
expert testimony based on DNA evidence.

viii. Just as in the US there must be guidelines for determining the weight to
be accorded to DNA evidence in various cases based on the nature of the
case.

The Sixteenth Law Commission (Maliamath committee), in its 185th Report

submitted in 2003 had proposed the following reforms in the Criminal laws
for better use of technology for fighting crimes in its report to the law
commission in 2003:

a) Forensic Science and modern technology must be used in investigations

right from the commencement of the investigation. A cadre of Scene of
Crime officers (SOCO) should be created for the preservation of scene of
crime evidence and collection of physical evidence therefrom.

b) The network of CFSL's and FSL's in the country needs to be

strengthened for providing optimal forensic cover to the investigating
officers. Mini FSL's and Mobile Forensic Units should be set up at the
District/Range level. The Finger Print Bureau and the FSL's should be
equipped with well-trained manpower in adequate numbers and
adequate financial resources.

c) Forensic Medico-Legal Services should be strengthened at the District

and the State/Central level, with adequate training facilities at the
State/Central level for the experts doing medico-legal work. The State
 Nirma University Law Journal: Volume-6, Issue-l, January-2018

Governments must prescribe a time frame for submission of medico-

legal reports.

d) A mechanism for coordination among investigators, forensic experts,

and prosecutors at the State and District level for effective investigations
and prosecutions should be devised.

But none of these recommendations have been implemented as yet, and the
report had come under severe criticism for being pro-police. Instead, in
order to overcome the above deficiencies and to clear the backlog of cases,
the Indian Parliament is considering a DNA Profiling Bill, 2012.Though
originally drafted in 2007 it could not be passed and was redrafted in
January 2012.It has again undergone amendments in 2016 but has not been
passed by the Indian Parliament. This Bill provides for creating DNA
databases which would contain the DNA profiles of certain categories of
people specified in the provisions. It is noteworthy that without
implementing a few of the proposed recommendations made by the said
committee it will become an enormous task to regulate the manner in which
justice is administrated using DNA evidence. This is because, the addition of
a new law though essential, implementation of the old laws require equal if
not more attention and consideration along with deliberative measures to
secure relief to the victims of crime, as correctly reported by the committee
in its clauses regarding victim participation. This aspect has been entirely
ignored by the legislators by simply allocating the civilian aspect while
admitting the DNA evidence, to the umbrella term of, right to life and liberty
under Art. 21 without considering the sensitive nature of DNA evidence and
the rights of the parties regarding adducing DNA evidence.

CONCLUSION

DNA profiling has many advantages when compared to the traditional forms
of evidence that are admissible in courtrooms in criminal cases and civil
cases where it is useful in proving identity or familial association. Though it
cannot ever supplant circumstantial evidence in criminal cases it can
REVIEW OF THE EVIDENTIARY VALUE OF DNA EVIDENCE

complement it since it can strongly point towards the suspects who could
have committed the crime. In civil cases, it is the best method and conclusive
proof available to establish the identity of persons and prove or disprove
maternity or paternity of children. This application of DNA technology
requires the best standard practices for its performance so that it can provide
us with accurate and reliable results. Seeking for DNA test is the only way to
get it performed and admitted in the courts for obtaining any relief in cases
of the kind mentioned above. The courts in India may admit DNA evidence if
it complements or supports other evidence in criminal cases. But in
matrimonial cases and in paternity or maternity disputes the courts do not
order it as a matter of routine but only in deserving cases.

In order that the DNA evidence may be accorded the status of conclusive
proof, many more amendments will have to be carried out in the existing
substantive and procedural laws. The new legislation which has been framed
in the light of the changes that the technology is capable of bringing into the
criminal justice system remains untested and requires a very large and
experienced task force well versed in both the technology and the laws
dealing with all the aspects which the technology touches upon when being
used in civil or criminal cases. Though it is supposed to be a legislation that
is comprehensive and inclusive of all aspects of DNA technology's
application in DNA typing, nothing can be said about its efficacy until it is
put to practical use in deciding cases and the cases are decided faster and the
correct criminals are identified and the innocent ones are set free. Till then
the proposed amendments made in the existing laws should direct the course
of legal proceedings of the nature mentioned in this article. As of now, DNA
profiling has brought a level of accuracy in the justice system that was
unthinkable half a century ago and will continue to question the manner in
which the justice system operates without intervention from technology. The
following case proves the above point:

One of the first cases in the United States which used plant DNA to solve a
murder case was in 1993.The victim Denise Johnson's body was found in a
 Nirma University Law Journal: Volume-6, Issue-l, January-2018

remote location outside Phoenix. The only clue that the police found was a
tree with which it seemed a pickup truck might have collided. The tree was
one that grew in the wild and was susceptible to DNA identification. When
the police rounded up suspects they came across the seedpods of the tree in
the pickup truck of one of the suspects Mark Bogan. The pod's DNA profile
matched with that of the crime scene tree's DNA profile and it could be
conclusively proved to belong to that tree. This was sufficient evidence in the
courtroom to counter the denial by the suspect of having been at the crime
scene on the day of the murder and thus gaining a conviction of first-degree
murder and imprisonment. This is one of the many imaginative uses by
which DNA technology can be used to identify culprits. The law enforcement
professionals along with the forensics teams can imaginatively use this
technology to solve crimes which might have been hitherto considered
unsolvable. This technique has yet to become a manner of ascertaining the
relevant fact from a set of facts related to a crime. Take, for instance, the
Bhopal gas tragedy. The decision in the said case took a very long time but
enhanced DNA testing methods, if properly used could have helped ascertain
the exact number of victims and the exact degree of impairment and
therefore, the exact amount of compensation that was to be granted to each
individual. Not to mention if a database of such victims could be made it
would become a future point of reference both to researchers and
investigating authorities. Such a database would also serve as a record of the
details which witnesses could have missed or their memories have failed in
recollecting during testifying.

Every time a new technology finds applications that question the existing
order of the society or facilitates the improvement of the existing order of the
society, it raises many questions and problems which have to be answered or
solved. Scientific technology is precise and is objective in its approaches. The
subjective ideas which form the basis of the legal system must adapt or
create new theories to accommodate such an objective approach to
technology. It is here that DNA technology presents a different kind of
objectivity which is based on a subjective science called genetics. The results
REVIEW OF THE EVIDENTIARY VALUE OF DNA EVIDENCE

and interpretation of the results of DNA tests have a subjective basis but are
scientifically accurate which must be understood by the legal system to
ensure proper allocation of DNA technology's application to the dispute and
to know how much of the genetics-based technology is indeed useful and
applicable in a given case, and how much weight should be given to evidence
based on DNA technology. Genetics is a science which has its basis in the
building blocks of life, which means any kind of development in this sphere
will impact the entire mass of living organisms of earth irrespective of the
size or nature of the impact. This is because genes have an ability to carry
various characteristics in a latent form for many generations and to burst
into active expression all of a sudden. This unpredictability of the genetic
nature is only aggravated by our relative ignorance of the detailed
functioning of DNA, and hence the extensive research on the human
genome.

Any piece of legislation regulating the use of the DNA technology must keep
in mind the necessity to maintain the continuity in the research and
development activities in the field of genetics and DNA technology if only to
prevent ourselves from becoming the scapegoats of people armed with
superior knowledge and skills about this technology. In the context of human
rights which gives rise to grave issues surrounding humanity and for the
preservation of the inherent sanctity in all life forms including human life,
genetics legislation or legislation regulating DNA technology must be
framed. And it should be framed cautiously so that it enables the technology
to incorporate new changes and advancements without delays and such that
it would find acceptance in legal systems without again having to resort to
subjective evaluation and assessment of every improvement made due to
advancement in genetic sciences. In exercising caution, we must not only
ensure our own safety but that of future generations. And this concept of
safety should not be limited to physical safety: it also includes the right to be
left alone (privacy), to not be discriminated against, and the right to know
the basis for government action based on our genes.
48 Nirma University Law Journal: Volume-6, Issue-l, January-2018