DNA profiling

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Familial searching is the use of family members' DNA to identify a closely related suspect in jurisdictions where large DNA databases exist, but no exact match has been found. The first successful use of the practice was in a UK case where a man was convicted of manslaughter when he threw a brick stained with his own blood into a moving car. Police could not get an exact match to the UK's DNA database because the man had no criminal convictions, but police implicated him using a close relative's DNA.[13] The technique was used to catch a Los Angeles serial killer known as the "Grim Sleeper" in 2010.[14]

Surreptitious DNA collecting

Police forces may collect DNA samples without the suspects' knowledge, and use it as evidence. Legality of this mode of proceeding has been questioned in Australia.

In the United States, it has been accepted, courts often claiming that there was no expectation of privacy, citing California v. Greenwood (1985), during which the Supreme Court held that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home. Critics of this practice underline the fact that this analogy ignores that "most people have no idea that they risk surrendering their genetic identity to the police by, for instance, failing to destroy a used coffee cup. Moreover, even if they do realize it, there is no way to avoid abandoning one’s DNA in public." [15]

In the UK, the Human Tissue Act 2004 prohibited private individuals from covertly collecting biological samples (hair, fingernails, etc.) for DNA analysis, but excluded medical and criminal investigations from the offense.[16]

England and Wales

Evidence from an expert who has compared DNA samples must be accompanied by evidence as to the sources of the samples and the procedures for obtaining the DNA profiles.[17] The judge must ensure that the jury must understand the significance of DNA matches and mismatches in the profiles. The judge must also ensure that the jury does not confuse the 'match probability' (the probability that a person that is chosen at random has a matching DNA profile to the sample from the scene) with the 'likelihood ratio' (the probability that a person with matching DNA committed the crime). In R v. Doheny[18] Phillips LJ gave this example of a summing up, which should be carefully tailored to the particular facts in each case:

Members of the Jury, if you accept the scientific evidence called by the Crown, this indicates that there are probably only four or five white males in the United Kingdom from whom that semen stain could have come. The Defendant is one of them. If that is the position, the decision you have to reach, on all the evidence, is whether you are sure that it was the Defendant who left that stain or whether it is possible that it was one of that other small group of men who share the same DNA characteristics.

Juries should weigh up conflicting and corroborative evidence, using their own common sense and not by using mathematical formulae, such as Bayes' theorem, so as to avoid "confusion, misunderstanding and misjudgment".[19]

Presentation and evaluation of evidence of partial or incomplete DNA profiles

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