Dna Fabrication, a Wake Up Call: the Need to Reevaluate the Admissibility and Reliability of Dna Evidence

• Publication year: 2010

Georgia State University Law Review‌‌‌‌

Volume 27

Issue 2 Winter 2011 Article 15

1-1-2011

DNA Fabrication, A Wake Up Call: The Need to Reevaluate the Admissibility and Reliability of DNA Evidence

Kristen Bolden

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Recommended Citation Bolden, Kristen (2010) "DNA Fabrication, A Wake Up Call: The Need to Reevaluate the Admissibility and Reliability of DNA Evidence," Georgia State University Law Review: Vol. 27: Iss. 2, Article 15.

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DNA FABRICATION, A WAKE UP CALL: THE NEED TO REEVALUATE THE ADMISSIBILITY AND RELIABILITY OF DNA EVIDENCE

Kristen Bolden*

INTRODUCTION

In June 2009, Israeli forensic science researchers published a ground breaking study that put credence to the possibility of creating artificial Deoxyribonucleic Acid (DNA) that can fool current forensic testing procedures.1 The researchers asserted that anyone with the proper equipment and basic understanding of molecular biology could create artificial DNA in virtually unending amounts.2 Furthermore, the research demonstrates that the current American forensic science system utilized by law enforcement is incapable of distinguishing between artificial and genuine DNA.3

DNA evidence first emerged in the 1980s and brought with it a new chapter of forensic science.4 The use of DNA evidence has led to hundreds of post-conviction exonerations5 and assisted in tens of

* J.D. Candidate, May 2011. The author would like to thank Professor Jessica Gabel for suggesting such a fascinating topic and for her insightful advice throughout the writing process.

1. D. Frumkin et al., Authentication of Forensic DNA Samples, FORENSIC SCI. INT. GENET. 1, 1 (2009). The researchers, working for Israeli forensic science company Nucleix, Ltd., published an article in Forensic Science International: Genetics on their discovery of the ability to fabricate DNA. Nucleix Researchers Discover DNA Evidence May Easily Be Falsified, CN PUBLICATIONS, Aug. 17, 2009, http://cnpublications.net/2009/08/18/dna-evidence-may-be-falsified.

2. Frumkin et al., supra note 1, at 1.

3. Id.

4. Joseph L. Peterson & Anna S. Leggett, The Evolution of Forensic Science: Progress Amid the Pitfalls, 36 STETSON L. REV. 621, 621, 630 (2007) (stating that “DNA typing is, without question, the single greatest forensic scientific breakthrough in the past century” and the 1980s was a period of major scientific breakthroughs for forensic science including the advent of DNA typing).

5. Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful

   Convictions, 95 VA. L. REV. 1, 5 (2009) (“Two hundred thirty-two innocent persons have now been exonerated by post-conviction DNA testing.”). The Innocence Project at Cardozo Law School, which worked to free hundreds of wrongly convicted prisoners based on post-conviction DNA testing, as well as the publication of “a series of case studies recounting the experience of numerous prisoners exonerated by DNA testing who had been [wrongly] convicted” brought attention to the possible life- changing effect of this law enforcement tool. Peterson & Leggett, supra note 4, at 636–37.

   
   

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   thousands of investigations.6 In recent years, DNA evidence has been held as the “gold standard” of evidence,7 considered “the greatest forensic advancement since the advent of fingerprinting,”8 and likened to “the finger of God.”9 As the acceptability of DNA evidence has increased, so has the number of convictions resting solely on DNA evidence.10

   DNA fabrication calls into question the reliability of DNA evidence used in the current forensic science and law enforcement systems. Part I of this note provides background on DNA,11 the findings of the Israeli report,12 the ease of fabricating and planting DNA,13 and DNA admissibility standards currently at use in United States courtrooms.14 Part II discusses DNA’s current admissibility as compared to newer forms of forensic evidence and the possible impact artificial DNA could have on the admissibility of DNA evidence.15 Ultimately, Part III proposes that all courts adopt the

   
   

   
   

6. Peterson & Leggett, supra note 4, at 653–54 (stating that profiles collected for the DNA database CODIS have “contributed to more than 36,000 criminal investigations”); see also RON C. MICHAELIS ET AL., A LITIGATOR’S GUIDE TO DNA 105 (2008) (stating that the DNA profiles from CODIS have led to over 21,000 identifications).

7. Peterson & Leggett, supra note 4, at 654 (stating that DNA evidence has replaced fingerprinting

   and is the “new ‘gold standard’ of forensic evidence”).

8. David Hench, Developing of DNA Database Falls Behind, PORTLAND PRESS HERALD, Oct. 31, 1999, at A1 (quoting Lt. Michael Harriman, head of the Maine police crime lab).

9. DNA Links Convict to 21-Year-Old Slaying Evidence Likened to “The Finger of God”, THE RECORD (N.J.), Mar. 14, 2000, at A5, available at 2000 WLNR 7495855 (quoting Jeanine Pirro, Westchester District Attorney). After DNA evidence linked a convicted robber serving time in Sing Sing Correctional Facility to a 21-year-old unsolved murder, the District Attorney said that DNA evidence is “like the finger of God pointing down and saying, [y]ou can’t get away with it no matter how long it’s been.” Id.

10. See generally Brooke G. Malcom, Convictions Predicated on DNA Evidence Alone: How

    Reliable Evidence Became Infallible, 38 CUMB. L. REV. 313 (2008). See, e.g., People v. Rush, 630 N.Y.S.2d 631, 634 (Sup. Ct. 1995), aff’d, 672 N.Y.S.2d 362 (App. Div. 1998) (finding that DNA evidence alone was sufficient for a conviction despite contradictory eyewitness testimony); State v. Toomes, 191 S.W.3d 122, 131 (Tenn. Crim. App. 2005) (finding that uncorroborated DNA evidence is sufficient to support the conviction of aggravated rape); Roberson v. State, 16 S.W.3d 156, 172 (Tex. App. 2000) (upholding the sexual assault conviction of a defendant based on DNA evidence alone); Springfield v. State, 860 P.2d 435, 453 (Wyo. 1993) (upholding a conviction of first degree sexual assault where only DNA evidence linked the defendant to the crime).

11. See discussion infra Part I.A.

12. See discussion infra Part I.B.

13. See discussion infra Part I.C.

14. See discussion infra Part I.D.

15. See discussion infra Part II.

    
    

    2011] ADMISSIBILITY AND RELIABILITY OF DNA EVIDENCE 411

    
    

    Frye-Kelly standard of admissibility for DNA evidence as well as additional requirements in light of this new discovery.16

    
    

    1. BACKGROUND

       
       

       1. Introduction to DNA and its Use in Law Enforcement

          
          

          DNA is “the hereditary material . . . [that] makes each living organism unique from all others.”17 DNA is considered a “genetic fingerprint” because it can be used to “identify and distinguish among individuals.”18 DNA technology first emerged in the 1980s and has played an important role in criminal investigations.19 In 1994, Congress passed the DNA Identification Act of 1994,20 authorizing the creation of a Combined DNA Index System (CODIS)21—a national database of DNA profiles taken from crime scenes and persons convicted of qualifying crimes.22

          
          

          
          

16. See discussion infra Part III.

17. Malcom, supra note 10, at 317. DNA is present in the cell nucleus, or in the mitochondria, and consists of two strands of polymers “shaped like a twisted ladder” (commonly known as the “double- helix”). Id. The polymers are composed of “repeating sequences of phosphate and sugar molecules.” Id. Each DNA strand is composed of chemical components arranged in sequences known as genes; the specific sequences of the chemical components vary among individuals. Id.; MICHAELIS ET AL., supra note 6, at 11. For a more extensive explanation of “the structure of DNA and the variability of the human DNA sequence,” see MICHAELIS ET AL., supra note 6, at 1–14.

18. Kimberly A. Polanco, The Fourth Amendment Challenge to DNA Sampling of Arrestees Pursuant to the Justice for All Act of 2004: A Proposed Modification to the Traditional Fourth Amendment Test of Reasonableness, 27 U. ARK. LITTLE ROCK L. REV. 483, 483 (2005).

19. Malcom, supra note 10, at 313 (“DNA evidence has been heralded as a powerful tool for both

    conviction and exoneration . . . . [s]ince the onset of DNA typing in the mid-1980s.”).

20. DNA Identification Act of 1994, (codified at 42 U.S.C. § 14132 (2006)), is part of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (codified at 42 U.S.C. § 13701 (2006)).

21. Peterson & Leggett, supra note 4, at 636; Polanco, supra note 18, at 483. Although the DNA Identification Act of 1994 authorized creation of the national index in 1994, CODIS was not online and ready for use until 1998. Peterson & Leggett, supra note 4, at 636. The Act also provided funding for all states to establish their own DNA laboratories and testing procedures. Id.

22. See Peterson & Leggett, supra note 4, at 636; Polanco, supra note 18, at 483. All fifty states

contribute DNA profiles to CODIS. Polanco, supra note 18, at 483; see also MICHAELIS ET AL., supra note 6, at 100 (“The DNA Analysis Backlog Elimination Act of 2000 authorized the collection of DNA sample from prisoners, parolees and others on supervised release after committing one of a list of qualifying crimes.”). These crimes include: murder, voluntary manslaughter, maiming, sexual abuse, sexual exploitation, slavery, kidnapping, incest, arson, robbery, and burglary. DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 106-546, 114 Stat. 2726 (codified at 42 U.S.C. 14135a(d) (2006)). Additionally, “[t]he USA Patriot Act of 2001 added terrorist acts to the list of eligible crimes, and the Justice for All Act of 2004 further expanded the list of eligible...