DNA Rules! (Rules on DNA Evidence)[1]

By Siesta-friendly

We have reservations about the recently released Supreme Court rules on DNA evidence. We even wonder why there wasn’t much criticism upon their release. Anyway, we hereby explain our unease.

Due Process, Probable Cause and Right to Privacy

Our main concern stems from the provision allowing the court, either on its own or on application of any person who has a legal interest in the matter in litigation, to order a DNA testing.[2] Although the order issues after due hearing and notice to the parties upon a showing that:

a) a biological sample exists that is relevant to the case;

b) the biological sample:

(i) was not previously subjected to the type of DNA testing now requested; or

(ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons;

c) the DNA testing uses a scientifically valid technique;

d) the DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and

e) the existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing,

we would have preferred that the rules specifically require a showing of probable cause that a crime has been committed and of probable cause that the suspect committed it. These provisions may be innocuous in a paternity suit, but in convicting and subsequently imprisoning a person in a criminal case we feel there should be more safeguards on the rights of the accused.

The same provision allows DNA testing, “without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced.” Not only is probable cause absent here, but due process as well.

Where probable cause is necessary to issue a search warrant, now a mere request is enough to search inside one’s genetic codes. Authorities cannot search a suspect’s belongings without probable cause but they can now obtain his clothes, car, toothbrush, or anything else he owns upon a showing that “a biological sample exists that is relevant to the case”.

Where we used to have a reasonable expectation of privacy, now authorities can easily stick a needle inside a suspect to get a blood sample pursuant to a mere “behest of any party”. We recall the following constitutional guaranties: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”?[3]

Let’s say you gave some biological sample voluntarily in the course of a pre-employment process or some annual medical exam. The provision does not require your consent prior to DNA testing of that biological sample for the purpose of some criminal investigation. And so we seem to have a further loophole, that referring to doctor-patient confidentiality.

In a country well-known for corruption, such rampant testing of biological samples can never be good. Test results may depend on the highest bidder. In addition, the level of technology we have may be open to many mistakes in handling DNA evidence that we feel that certain standards like probable cause and right to privacy should be applied for the suspect’s protection.

Disclosure

Next, due to the delicate nature of DNA evidence, the science involved and the quality of work required for its handling, we also would’ve preferred a detailed disclosure requirement i.e., as to what one party shall make available to the other regarding the DNA evidence obtained.

True, the court is required to assess the probative value of the DNA evidence by considering the following:[4]

a) The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples;

b) The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests;

c) The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and

d) The reliability of the testing result, as hereinafter provided.

The court is also required to evaluate whether the DNA testing methodology is reliable by considering the following:[5]

a) The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested;

b) The subjection to peer review and publication of the principles or methods;

c) The general acceptance of the principles or methods by the relevant scientific community;

d) The existence and maintenance of standards and controls to ensure the correctness of data generated;

e) The existence of an appropriate reference population database; and

f) The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of statistical calculations used in comparing DNA profiles.

The court is required as well to evaluate the DNA testing results by considering the following:[6]

a) The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence;

b) The results of the DNA testing in the light of the totality of the other evidence presented in the case; and that

c) DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence. If the value of the Probability of Paternity is 99.9% or higher, there shall be a disputable presumption of paternity.

But, in the interest of disclosure, we feel either party should be specifically required at pre-trial to provide the other all the above-mentioned information including all notes taken during the entire testing process (including the laboratory’s files), a list of all collected items and other known information relevant to the defendant’s case.

The rules also lack the procedure allowing the defense to inspect and test the available DNA evidence under any circumstance.

Nor is there any mention of making available a DNA expert pro bono for the defendant in case the latter is indigent.

We believe a defendant can properly and effectively prepare for his defense if these specific procedural requirements were laid down especially considering the science and technology being used as bases for his conviction and imprisonment.

Database

While the rules seem disadvantageous to the accused when we feel they should be protective, they seem quite lenient when it comes to the rights of the convicted when it seems they don’t have to be. Just when there exists DNA evidence taken lawfully which leads to a successful criminal conviction, the rules allow their storage for only a limited time.

We would’ve preferred that a database be built of DNA profiles of known criminal offenders, but courts are allowed to order destruction of DNA evidence (samples, results and all) “for not less than the period of time that any person is under trial for an offense” and “in case the accused is serving sentence, until such time as the accused has served his sentence”[7]

In addition, courts are allowed to order “the physical destruction of a biological sample before the expiration of the periods set forth above, provided that: a) a court order to that effect has been secured; or b) the person from whom the DNA sample was obtained has consented in writing to the disposal of the DNA evidence.”[8] Any recidivist would certainly not think twice in allowing the destruction of DNA samples obtained from him.

Test case

The only case at present which has applied the rules is one of rape where the victim alleged that her child was conceived as a result of the alleged crime. The Supreme Court, on appeal from the defendant’s conviction, ordered the lower court to obtain DNA evidence to determine the child’s paternity and thus determine defendant’s guilt or innocence.[9]

In the absence of other practitioners’ concerns about the rules, we can only wait for more criminal cases - where DNA evidence may be obtained or offered - to further test the rules’ application .

[1] A.M. No. 06-11-5-SC, October 2, 2007.

[2] Sec. 4.

[3] Sec. 1, Article III, 1987 Constitution.

[4] Sec. 7, Ibid.

[5] Sec. 8, Ibid.

[6] Sec. 9, Ibid.

[7] Sec. 12, Ibid.

[8] Supra.

[9] People vs. Umanito [G.R. No. 172607, October 26, 2007].

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