The Use of Mandatory DNA Testing for Trial. Ethical Considerations in Criminal Justice. May 2, 2013

Transcription

1 The Use of Mandatory DNA Testing for Trial Ethical Considerations in Criminal Justice May 2, 2013

2 DNA analysis is a technique for identifying whether or not a suspect was present at the time of the crime committed. One specific technique used by forensic scientists is called restriction fragment length polymorphism (RFLP). This method consists of extracting an individuals DNA sequence using a Southern Blot technique, and separating the genetic information according to size. This is a successful technique because the genetic information that is common throughout the humans only makes up 5% of the DNA found in human chromosomes; the DNA that encodes for essential proteins. The other 95% of DNA in humans consists of variable number tandem repeats (VNTR) and non-sense DNA (Theresa, 2012). The VNTR s are what scientists look for when they are DNA fingerprinting, because the size of these repeats are unique to the individual. Although genes are hereditary, there is a small difference between immediate family members, and even smaller between twins. One issue with using this technique is that it requires a large amount of sample in order to run the southern blot (Theresa, 2012). In comparison to a different technique, like short tandem repeats (STR), forensic scientists can use a much smaller sample to identify the tandem repeats. This technique is most commonly used in a court cases. Similar to the RFLP technique, scientists are looking to the short repeats in DNA that are also unique to an individual. So when the scientists performs this method of DNA fingerprinting, they can match the DNA found at the crime scene with the DNA given by a suspect to prove innocence or guilt. While using DNA evidence in courts is a great way to gain more evidence on a suspect, there are some issues with the way legislature is trying to expand the DNA databases on a federal and state level.

3 In 1994 the US congress enabled for the creation of a national database for DNA (James, 2012). This database was created and is sustained by the Federal Bureau of Investigation (FBI). Currently all convicted felons must give a DNA sample to be entered into the database. This is a large increase from the 5 states that issued the mandatory DNA sample in 1998 (James, 2012). Also, there are 13 states that ask for a mandatory DNA sample from individuals that are arrested, not convicted, for a felony (James, 2012). Some more drastic statistics are that, 22 states require DNA samples for burglary arrests, 25 states require DNA samples for sex crime arrests, and 4 states require DNA samples for numerous misdemeanor arrests (James, 2012). This is a drastic statistic since they are asking for DNA samples from people who have been arrested, but not convicted of a crime. Another big issue with DNA evidence is the idea of DNA backlogging. Backlogging is the idea that processing the DNA takes a long time, and that labs do not have enough time to process all the cases that request DNA testing. This causes delays when issuing an arrest, or may cause an innocent person to go to jail if their DNA test is not completed before the trail is finished (James, 2012). This is a much larger issue for those states that ask for a DNA sample from individuals arrested for misdemeanor offenses, because their forensic labs are overloaded with samples that need to be analyzed. In 2009, the Congressional Research Service found that state and local laboratories had approximately 300,000 DNA tests to perform (100,000 backlogged from the previous year) and they only completed just under 200,000 of them (James, 2012). This left over 100,000 DNA samples that were not analyzed

4 until That is a substantial number of tests that could not be run in an appropriate time. While DNA evidence is a relatively new technique used to prosecute suspects, it has its most power in court when it is used as a way to prove innocence (Findley, 2002). If DNA evidence is found at a crime scene, and a suspect does not match the DNA fingerprint then that is strong evidence that the suspect is innocent. For example, in 1996 Gerald Parker was convicted of rape and was subjected to a DNA test (National Institute of Justice, 1999). His DNA was linked to 5 other rapes using the DNA database. His DNA evidence freed an innocent man, Kevin Lee Green, who had already served 16 years in prison. DNA evidence can have a strong influence in court cases, as well as help bring insight on some cold cases (National Institute of Justice, 1999). The Innocence Project freed 17 wrongfully convicted felons using DNA evidence (Lodge, 2009). These people served a combined 187 years on death row, and are now free individuals, but their DNA samples are still in the DNA database (Lodge, 2009). So how do we address the issues associated with allowing mandatory DNA testing for trials? There are 2 ethical frame works that I used to interpret the research constructed about DNA testing, ethical formalism (a deontological ethical system) and utilitarianism (a teleological ethical system). The ethical formalism framework is based around altruistic acts (Pollock, 2012). Altruistic acts are acts that are routed in good will no matter the outcome (Pollock, 2012). So the person performing the altruistic act has the best intentions in mind, and there is no form of reciprocation that is needed or expected when the individual is performing the good

5 deed. For example, an individual helps someone with their homework because they are expecting them to also help with their homework, then this would not be considered to be ethical due to the ethical formalist framework. When the ethical formalism framework is applied to the policy of implementing mandatory DNA tests for trials, it would be considered ethical to enforce this policy. This is because DNA evidence is used to make sure the prosecution is prosecuting the correct individual. DNA evidence has proven to be a good tool help exonerate individuals wrongfully convicted of crimes; the Innocence Project is a great example. Although it is not logical for me to state that I know the intentions of federal legislature when this policy is implemented, the evidence of DNA evidence has shown a great amount of progress in proving an individual s innocence. The utilitarianism ethical framework is very different from ethical formalism. Utilitarianism ethical framework judges the consequences of the act instead of determining the intentions of the individual. The act that the greatest number of people will benefit from is considered ethical in the utilitarianism framework (Pollock, 2012). For example, planting evidence on a known violent drug dealer would be considered ethical because it makes the whole community safer. One criticism of this ethical framework is that we cannot predict the future, so we cannot be certain that the drug dealer would actually cause more harm to the community. When this framework is applied to the DNA evidence policy, there are some grey areas that contrast each other. First, there is the certainty of DNA evidence techniques. Once 2 DNA samples are found to be a match there is great certainty

6 that the person is a match (James, 2012). Second, there is the issue that if a mandatory DNA sample is needed for trial that will cause there to be a larger backlogging issue. There is already a large issue with DNA backlogging, and not all of the states ask for DNA samples upon misdemeanor arrests. If all 50 states asked for DNA samples for misdemeanor arrests, this issue can only get worse. This would lead to more prosecution delays, and a backlogging problem that could get out of control. Although the DNA evidence is a technique that can ultimately make or break a case, backlogging is an issue that could escalate to where few new tests are actually being processed during the year the test is issued. So, using a utilitarianism ethical framework issuing mandatory DNA tests for trials would not be considered ethical. After constructing research on the DNA evidence, as well as the ethical frameworks, I agree more with the utilitarianism ethical framework. The issue of DNA backlogging is a large issue that cannot be left alone. There is a growing demand for DNA testing, and if we do not have more forensic labs, or a quicker way to process the DNA, then the amount of tests that do not get processes will continue to grow. Until we have nailed down a way to process all the DNA samples in the same year they are taken, then asking for a mandatory DNA test for trials could end up having a negative effect of the individuals being processed. Those on trial could be prosecuted before the DNA test is completed, which could have either exonerated the individual or built a stronger case against the defendant.

7 References Theresa, P. (n.d.). Restriction fragment length polymorphism. Retrieved from James, N. (2012). DNA testing in criminal justice: background, current laws, and issues. Congressional Research Service. Retrieved from: Findley, K. A. (2002). Learning from our mistakes: A criminal justice commission to study wrongful convictions. California Western Law Review, 38(2), National Institute of Justice. (1999). What every law enforcement officer should know about DNA evidence.. Retrieved from NIJ website: Lodge, S. (2009, November 07). DNA tests have released 17 "death row" convicts. without DNA tests, innocent people would probably be dead. Retrieved from html Pollock, J. (2012). Ethical dilemmas and decisions in criminal justice. (8 ed.). Belmont, CA: Wadsworth Cengage Learning.