Emergence of DNA Evidence in our Nation of Laws

By: wish4m zahir

Very recently, perhaps on the 14th of November, the Maldives Police Service announced that they had cracked their first case based on DNA evidence. More broadly, the Police have tried to develop its forensics capability first by sending personnel on training as far back as in 2003 to countries such as the US and the UK. Presumably they are back now and the crime lab at the MPS is up and running.

All this seems a breakthrough in terms of criminal justice and Police investigations, and it all invariably is very welcoming to any hopeful in our nation of laws. However it also sparks a lot of thought in our mind as to the weight that is to be afforded to DNA as evidence in Court. The stand is pretty open as there is almost no instance in history of our country where DNA was in issue. And this problem has to be taken in the light of our present legislation, modern practice and the stance in Islam.

DNA, or deoxyribonucleic acid, is the fundamental building block for an individual’s entire genetic makeup - our hereditary blueprint passed on to us by our parents. It is a component of virtually every cell in the human body. A person’s DNA is the same in each cell and it does not change throughout a person’s lifetime. For example, the DNA in a person’s blood is the same as the DNA found in that person’s saliva. DNA also is found in skin tissue, sweat, bone, the root and shaft of hair, earwax, mucus, urine, semen, and vaginal or rectal cells.

DNA, was first described by the scientists Francis H. C. Crick and James D. Watson in 1953. Crick and Watson identified the double-helix structure of DNA, which resembles a twisted ladder, and established the role of DNA as the material that makes up the genetic code of living organisms. DNA is a powerful investigative tool because, with the exception of identical twins, no two people have the same DNA. In other words, the sequence or order of the DNA building blocks is different in particular regions of the cell, making each person’s DNA unique. Therefore, DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same way that fingerprints are used. DNA also can identify a example, during a sexual assault, biological evidence such as hair, skin tissue, semen, blood, or saliva can be left on the victim’s body or at the crime scene. In addition, hair and fiber from clothing, carpet, bedding, or furniture could be transferred to the victim’s body during an assault.

The new constitution, in our nation of laws, ratified recently uses the term “as practiced in other democratic states” a lot. When we consider this, of course the US of A comes to mind. In general, state and federal courts in the United States have increasingly accepted DNA evidence as admissible. The first state appellate court decision to uphold the admission of DNA evidence was in 1988 (Andrews v. Florida, 533 So. 2d 841 [Fla. App.]), and the first major federal court decision to uphold its admission occurred in Jakobetz. By the mid-1990s, most states' courts admitted DNA test results into evidence.

Proponents of DNA evidence fear that successful courtroom attacks on its reliability will erode public confidence in its use, giving the state less power in bringing criminals to justice. But most remain confident that it will be a permanent part of criminal investigation. According to Eric E. Wright, an assistant attorney general for Maine,"[T]he history of forensic DNA evidence consistently and ever increasingly demonstrates its reliability. It has been subjected to savage scrutiny unlike any Forensic Science before, and it has survived. Soon the only wonder about DNA evidence will be: What was all the fuss about?"

Defense attorneys and others who are skeptical about DNA evidence strongly disagree with many of these claims. While generally accepting the scientific theory behind DNA evidence, including its ability to exculpate the innocent suspect, they assert that it is not nearly as reliable in practice as its proponents claim. They argue that DNA evidence may be unreliable for any number of reasons, including contamination owing to improper police procedures and faulty laboratory work that may produce incorrect results.

Barry C. Scheck is a leading critic of DNA evidence. A professor at the Benjamin N. Cardozo School of Law, a defense attorney in several notable cases involving DNA evidence, and an expert for the defense in the celebrated 1995 murder trial of O. J. Simpson, Scheck has led the movement for increased scrutiny of DNA evidence. Conceding that "there is no scientific dispute about the validity of the general principles underlying DNA evidence," he nevertheless argued that serious problems with DNA evidence remained. He found particular fault in the work of forensic laboratories and pointed to research that showed that as many as one to four percent of the DNA matches produced by laboratories were in error. Laboratories denied such claims.

Scheck also criticized the procedures used by laboratories to estimate the likelihood of a DNA match. Because juries consider the probabilities generated by the labs—figures such as one in 300 million or one in 5 million—when assessing the validity of DNA results, it is important to ensure that they are accurate.

It is also important to ascertain the Islamic point of view to all of this, because of the ubiquitous presence of Islamic Shariah within the new ratified constitution. Sheikh `Abdul-Majeed Subh, states: "I would like to stress that DNA as well as the hereditary print are no more than supporting evidences. In other words, they cannot be considered as independent legal evidences on their own. Thus, if we are to consider DNA as evidence that is supposed to establish paternity or prove a crime such as Zina, then it must be supported by clear legal proofs such as witnesses or confession." This stand is corroborated by Sheikh Muhammad Iqbal Nadvi, Imam of Calgary Mosque, Canada, and Former Professor at King Saud Univ., Saudi Arabia, adds: "The DNA testing can be used in Islamic Courts as a supporting evidence in the absence of just witnesses. However, it cannot be the sole and only evidence to prove a huge crime like Zina which entails inflicting severe punishment on the criminal. The reason for not accepting DNA as a sole and complete evidence is that DNA testing cannot tell us whether the one who committed adultery did it willingly or unwillingly, be it the man or the woman."

So perhaps it would not be a mistake to claim that Islam places a lesser of a significance to DNA evidence in criminal matters. It would also not be a mistake to claim that this is only true for Hadd and Qisas crimes such as Fornication, theft and murder. And even then, it may not be a deciding factor but it would certainly be permissible and weighted. For all other ta’ziri matters, DNA is of utmost importance. And these matters essentially take around 90% of criminal prosecution, making it of significant value. However this may be, the MPS maybe questioned by defence lawyers on the accuracies and reliability of their peculiar practices of testing as stressed out by Scheck (mentioned two paras above) especially since our nation of law is just starting out in the high-tech field. So it seems the MPS has a long way to establish the reliability and accuracies of their lab activities in the face of stringent defence attorneys, but the whole notion behind the idea is noble and welcome. Now all that is left is to see Court’s applications of these evidence and their interpretations of laws governing it, which it might be added here, is none where direct legislation is concerned.