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.
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.
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
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.
Cook is editor of MercatorNet.