If you’re not a criminal, you’ve got nothing to worry about

Should we file everyone's DNA in a database in case they commit crimes?

One of America’s longest-running TV shows is “America’s Most Wanted”, a reality show which gets viewers to report murderers, rapists and child molesters. To date, it claims to have fingered 1,110 criminals. Such is its popularity that in March host John Walsh celebrated the 1,000th episode at the White House. Mr Obama used to be a law lecturer, but it didn’t take much arm-twisting to get his personal backing to taking and retaining DNA samples from individuals arrested for a crime but not convicted. “No different than fingerprinting or a booking photo”, said Walsh, and Obama nodded sagely and replied, "It's the right thing to do."

But is it?

Experts on human rights say no. The European Court of Human Rights may have slowed down Britain’s rapid move to nigh-universal DNA profiling. In a 2008 judgement it found that indefinite retention of DNA samples from everyone who is arrested, regardless of their age or guilt, was a violation of a basic right to privacy. The database in the United Kingdom includes more than 5 million DNA profiles and one-fifth of these come from people without a criminal record. However, the government has been reluctant to destroy profiles as police and the public feel that DNA records are vital to putting criminals behind bars. The argument is: if you’re not a crim, you’ve got nothing to worry about.

The counter argument is that the government is accumulating a database which treats every citizen as a potential criminal from the day that he is born. In Britain, DNA profiling has become an important issue in the current election campaign. As Nick Clegg, the leader of the Liberal Democrats, says: "In whose name has the Government built this Orwellian database? It is bad enough that the Government has demolished the age- old distinction between innocence and guilt in cropping the DNA details of thousands of innocent people. It is even worse that they have done this without any meaningful public or Parliamentary debate."

Apart from privacy concerns, many experts worry that the technology for forensic investigation is far from perfect. Here in Australia, Victorian police were forced to suspend the use of DNA evidence for a month last year after a substantial miscarriage of justice. A 20-year-old, Fara Jama, spent 18 months in jail for a rape he did not commit. It turned out that DNA taken from him 24 hours before the crime over an unrelated offence for which he had not even been charged had contaminated the crime scene evidence. 

How did that ever happen?

Lawyers attribute it to the “white coat syndrome” – the power of shuffling statistics and graphs and figures before a mesmerized audience. Colin Powell did it to the United Nations when he used high-resolution images to prove that Saddam Hussein had weapons of mass destruction. And ordinary juries are no less susceptible to the allure of exact numbers and scientific precision.

A recent study by the Australian Institute of Criminology reported that juries are 23 times more likely to bring in a guilty verdict in murder cases if there is DNA evidence and 33 times more likely in rape cases. There is a lot of concern that jurors, in the words of one judge, can be “'overawed by the scientific garb in which the evidence is presented and attach greater weight to it than it is capable of bearing”.

Like mathematics, science is logical. But unlike mathematics, the results of scientific work have to be filtered through instruments and technicians and interpreted by experts. There is abundant room for unexpected error. Erin Murphy, a legal academic at Berkeley, summed up concerns in a recent article: “even DNA typing – the archetypal objective science – requires an analyst to make judgment calls separating signal from noise. Just because a discipline is founded in scientific principle does not mean that it always yields wholly determinate answers: there is meterology and there is math.”

In fact, as Osagie K. Obasogie, of the Center for Genetics and Society, in California, pointed out recently in the Los Angeles Times, DNA testing is still an art as much as a science. Even though everyone’s DNA is unique, current tests still have a surprising margin for error. “The entire enterprise of DNA databases is based on the idea that no two people share the same profile. But Arizona's database of 65,000-plus entries was shown to have more than 100 profiles that were similar enough for many experts to consider them a ‘match’," he wrote.  

Over-reliance on DNA profiles in crime investigation is just one facet of a growing acceptance of genetic determinism – the assumption that we are our DNA. More sophisticated techniques and protocols may eventually iron out the wrinkles with forensic evidence. But we can expect other important human rights debates as governments come to rely more and more upon genetic profiling for health care delivery, identification and security systems.  President Obama was extremely unwise to endorse a government database which could place citizens at risk of a lifetime of genetic surveillance.

Michael Cook is editor of MercatorNet.

This article is published by Michael Cook and MercatorNet.com under a Creative Commons licence. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation. Commercial media must contact us for permission and fees. Some articles on this site are published under different terms.