Networked Knowledge - Media Report

This version of the report has been prepared by: Dr Robert N Moles

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On29 November 2007 Alecia Simmonds reported in the Sydney Morning Herald “Don't worship at the altar of DNA - it's not infallible”.

She said, it's a typical day in the CSI forensics lab. Statuesque scientists awash in a cool blue light pore over microscopes, microbes and reams of data. This is a world where scientists supplant juries and scientific jargon supplants sense. Greg, a caddish "forensics nerd", is discussing his current love interest: "This girl sure has some fine epithelial," he drawls, captivated by the skin cells squirming beneath his microscope. Rather than passively admiring his date's complexion, Greg had surreptitiously sampled particles of her skin. "You're looking at her DNA!" gasps his colleague. Greg nods: "This could be the mother of my children." The scene closes with garrulous laughter. Collars are ruffled, backs are slapped and Greg is hailed as a hopeless romantic.

But what if Greg had fished around in the toilet for a urine sample, or clandestinely drawn some blood to assess his date's biological worth? Suddenly, the dashing rake becomes a spit-flecked sociopath. Family drama converts to chilling horror and Greg - wolves clawing beneath his scandalously blue eyes - meets an ignominious end. Yet there is not much difference between each of the plots: both involve a lack of consent, a breach of privacy, an invasion of the body's intimate boundaries - and both presuppose the infallibility of scientific knowledge. It is this misplaced belief in the certainty of DNA evidence alongside its quick and painless extraction which has led to its expansion in the realm of criminal law.

The NSW Legislative Council is poised to vote on legislation that would allow for a suspect's DNA to be taken without their consent for all offences. Previously, DNA samples could be non-consensually taken from people accused of indictable offences including murder, sexual assault or robbery. The changes have expanded this to cover all offences, from drug use to loitering, so long as the police have a reasonable suspicion of guilt and the evidence will confirm or disprove this. While DNA profiling for serious offences can be useful in identifying possible offenders there is nothing to suggest that its expansion will improve the administration of justice. Research in Australia and Britain has found that forensic DNA has not achieved a reduction in property crime. And there is a massive backlog of cases awaiting DNA analysis, resulting in significant delays to trials. The State Government has pledged to spend $22.45million over four years to help speed up the process. But is it really worth it?

When introducing the legislation in late October the Government did not offer arguments as to its need. And why should it? DNA is presumed infallible; expanding its use a self-evident good. But in our collective romance with forensic science we seem to have over-estimated the merits of our love object. Blind to reason and in the giddy heights of passion we have turned a grocery clerk into a god. Like fingerprinting more than a century ago, DNA can introduce a degree of certainty into the criminal trial, but it is not foolproof. There is always the potential for human error. Contamination and cross-contamination can and do occur. There is also the possibility that it is simply a chance match, that the suspect's DNA has arrived at the scene for a number of innocent reasons, or that the DNA evidence has been planted. Encouraged by shows like CSI, jurors have come to expect DNA evidence and often believe that it establishes guilt or innocence, rather than being merely one factor to consider. It is difficult for suspects to challenge these assumptions. Expert testimony is expensive and it is unlikely that an accused will be able to afford it.

It is not just that DNA is often neither useful nor cost-effective. The Government's legislation is also frighteningly authoritarian in its disregard for people's right to privacy and their ability to consent to invasive procedures. Freedom depends upon having control over our personal lives without an ever-present threat of physical coercion by the state. When this coercive power is vested in a police force plagued by corruption the legislation becomes even more dangerous. As the Government feasts upon our individual liberties it swells to monstrous proportions. Like Saturn, this monster threatens to devour its own children. It is imperative that we restrain it. When Greg from CSI declares that he has stolen his date's DNA, one of his colleagues is perturbed: "Y'know, there are other ways of getting to know someone; try going out for drinks." While I would not suggest that police begin courting their suspects, our criminal justice system already has a range of methods such as searches or subpoenas, which are used to investigate crime and are subject to judicial oversight.

The new legislation has a tremendous potential for abuse and with little reward. We should be channelling money into crime prevention rather than sitting idle while our brooding and belching Government grows ever more corpulent on the rights of its citizens.

Alecia Simmonds is writing a doctoral thesis in legal history at the University of Sydney.

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