CHAPTER 4

DNA Technologies in Criminal Investigation

and Courts

Abstract DNA profiling has been assuming a prominent role in the activi-
ties of the criminal justice system. Genetic technologies support criminal
investigations, while also being seen as holding a highly valuable potential
for producing evidence to be used in courts. This chapter has two main
objectives: on the one hand, to describe and explain the ways that DNA
technologies can be used in criminal investigation and turned into DNA
evidence in criminal proceedings; on the other hand, this chapter aims to
systematize the main lines of academic literature within the social sciences
which have been developed to study the social implications and transfor-
mations of cultures and professional practices arising from the presence of
DNA technology in the criminal justice system. Besides, the chapter also
pays particular attention to the social nature of the high expectations asso-
ciated to the “infallibility” of DNA technologies and how the media por-
trays the use of forensic genetics and further exacerbates such notions.

Keywords Chain of custody • Criminal investigation • Courts •

Infallibility myth • CSI effect

© The Author(s) 2020 45

H. Machado, R. Granja, Forensic Genetics in the Governance of
Crime, https://doi.org/10.1007/978-981-15-2429-5_4
46 H. MACHADO AND R. GRANJA

DNA TECHNOLOGIES AND ITS APPLICATION IN CRIMINAL

INVESTIGATION
There is now a broad consensus that DNA technologies play a vital role in
justice systems in various regions of the world (Hindmarsh & Prainsack,
2010; Kruse, 2016; Lawless, 2016; Lynch, Cole, McNally, & Jordan,
2008; Toom, 2018; Williams & Johnson, 2008). DNA technologies sup-
port the collection of information that helps the criminal investigation,
and DNA evidence is considered to have great value for judicial procedures.
However, the aura of infallibility associated with DNA technologies
generates expectations which are often exaggerated and dissociated from
the concrete reality of criminal investigation. It is therefore essential to
recognize and identify the potential risks arising from the use of DNA
technology, in order to prevent possible errors and threats to civil rights—
including upholding the presumption of innocence, genetic privacy and
the moral and physical integrity of suspects or persons accused of crimes
(McCartney, 2006; Murphy, 2007; Nuffield Council on Bioethics, 2007).
Identification of individuals using DNA profiles is often described as
the most important discovery in the world of forensic science since the
fingerprint (Lynch et al., 2008) and has even been designated by several
authors as the most significant mean of human identification of the mod-
ern era. Development of studies on the use of DNA for individual identi-
fication depends upon broad zones that exist between the genes that are
generally called “non-coding DNA”. These intergenic zones reveal spe-
cific chemical sequences that are supposed to be unique to each individual
and therefore produce a “genetic fingerprint”. Comparison of different
“genetic fingerprints” enables us to observe whether different samples of
DNA come from the same individual or different individuals. There is also
a biological relationship of descendance between the suppliers of different
samples that might be compared. In short, each person’s DNA is unique,
except in the case of identical twins.
A new epistemology of forensic identification (Cole, 2009) claims that
it is impossible to achieve “perfect” individualization, and therefore, we
should speak about probabilities rather than certainties (Kaye, 2009; Saks
& Koehler, 2008). Scientific authorities generally argue that absolute indi-
vidualization is a theoretical goal, but even excluding identical twins, the
inclusion of more markers in a DNA profile analysis leads to an increased
likelihood of observation of somatic mutations, that is, intra-individual
heterogeneity (Amorim, 2002).
 4 DNA TECHNOLOGIES IN CRIMINAL INVESTIGATION AND COURTS 47

Forensic DNA analysis usually involves comparisons between genetic

profiles extracted from biological samples collected from a specific site,
object or person which is thought to be associated to a crime, in order to
determine the likelihood that such samples come from a particular person
(e.g., from a suspect, or victim, of a specific crime). Biological substances
collected at crime scenes—such as blood, hair, semen, urine, skin, saliva,
sweat and tears—all contain DNA. A DNA sample can also be obtained
through a mouth smear from an identified person, or by collecting hair
samples (including hair roots, since they contain the cells needed for anal-
ysis), blood samples (usually achieved nowadays by pricking the finger) or
by scraping part of the body to remove a small sample of a person’s skin.
A molecular biological technique, called polymerase chain reaction
(PCR) is fundamental for analysing DNA polymorphisms. This technique
makes it possible to replicate in vitro and amplify and analyse trace amounts
of DNA. Nowadays, this technique is frequently used in the preparation of
DNA profiles for criminal identification and makes it possible to pair sus-
pects with blood, hair, saliva or sperm samples. DNA profiles are also often
used for forensic civilian identification purposes, in particular for paternity
testing and identification of missing persons and human remains (Bier,
2018; Smith, 2017; Toom, 2017).
A technical problem raised by DNA profiles is the fact that contamina-
tion with DNA from an outside source can occur, both at the time of col-
lection and in the scientific laboratory. Contamination of the DNA sample
is frequent in crime scenes, in old and degraded samples, in corpses and
human remains. False identifications are likely to happen when used in
partial profiles due to insufficient quantity or degradation of DNA
(Murphy, 2007).
In addition to the aforementioned risks, there are ethical issues that
derive from the type of information that can be obtained from DNA anal-
ysis. While traditional fingerprints only reveal a person’s identity, samples
used for DNA profiles may reveal much more information, namely about
the individual’s kinship ties, which may be unknown to the individual
(Haimes, 2006; Kim, Mammo, Siegel, & Katsanis, 2011). With advances
in the knowledge of the human genome, even the so-called non-coding
DNA may in the future be associated with sensitive information, such as
diseases and behavioural traits (Duster, 2003; Williams & Johnson, 2004a).
The myth of the infallibility of genetic identification can condition the
conduct of the police investigation itself and the assessment of evidence in
court. Hence, it is desirable to question the reliability and scope of the
48 H. MACHADO AND R. GRANJA

DNA evidence and the consideration of the circumstances associated with

each case. It is, therefore, necessary to guarantee the principle of taking
precautions when using DNA profiling as a means of evidence, since in
certain circumstances it may become controversial and maybe a source of
abuse and judicial errors (Gill, 2014, 2016; Schiffer & Champod, 2008).

FROM THE CRIME SCENE TO THE LABORATORY

AND THE COURT

The presence of DNA technology in the criminal justice system involves

multiple professionals and differentiated spaces. Within the framework of
the so-called chain of custody, the focus is on the crime scene and its
observation to identify and collect biological traces that may subsequently
be useful for identifying a perpetrator. Subsequently, the biological traces
are analysed in a laboratory context. Finally, scientific reports on the DNA
analysis are presented to the persons responsible for judging the
case in court.
Social science studies have revealed that, in an initial stage, various con-
troversies arose, associated to doubts about the credibility and robustness
of DNA technology that accompanied the start of its practical applications
in human identification (Aronson, 2007; Jasanoff, 1995; Lynch &
Jasanoff, 1998). However, DNA testing gained a more respected status
due to its unparalleled capacity to identify criminal suspects (Lynch et al.,
2008; Williams & Johnson, 2008). As Michael Lynch argues, DNA test-
ing is treated “as both the source and object of an extraordinary and even
absolute, degree of certainty in criminal law” (Lynch, 2013, p. 60).
Claims for the operational utility and scientific standing of forensic
DNA profiling are often made in the context of new concepts and meth-
ods designed to improve the quality and effectiveness of police criminal
investigation practices (Williams & Johnson, 2008). Therefore, forensic
DNA evidence is often viewed as capable of enhancing police practices
with some degree of “objectivity” associated with the scientific authority
of DNA technologies (Cole & Lynch, 2006; Costa, 2017; Santos, 2014).
However, studies with police forces reveal that police professionals con-
sider that DNA testing is subject to various contingencies, which is why it
should be seen primarily as a source of intelligence, to be taken into
account in criminal investigation in conjunction with other types of leads
and evidence (Huey, 2010; Machado & Granja, 2019).
 4 DNA TECHNOLOGIES IN CRIMINAL INVESTIGATION AND COURTS 49

In short, as the anthropologist Corinna Kruse (2016) points out in her

study about the Swedish justice system, the views and uses of DNA evi-
dence tend to vary. The different professionals who are involved in inves-
tigating crimes and taking decisions on whether suspects should be
accused or exonerated, construct different meanings and interpretations
regarding the value of forensic genetics. The author illustrates the multi-
plicity of meanings attributed to DNA testing by different professionals,
as follows:

To a crime scene technician, forensic evidence is something that can be pro-

duced by traces (…) from a crime scene. To a police investigator, forensic
evidence is something that may be able to help him or her to assess a per-
son’s narrative. To a forensic scientist, forensic evidence is a trace that is to
be analysed and evaluated (…) To a prosecutor, forensic evidence is some-
thing that will help him or her to convince the court of a defendant’s culpa-
bility. And to a judge, forensic evidence is something reliable, an anchoring
point in their assessment of a case. (Kruse, 2016, pp. 155–156)

Rather than serving as a machine for generating truth, DNA evidence

relates to the expectations, epistemic cultures (Knorr-Cetina, 1999) and
objectives of each social and professional group. There is no uniform and
absolute perception of what DNA technologies can achieve in terms of
criminal investigation: the expectations of a criminal investigator are dis-
tinct from the convictions of a scientist or from that which is expected
from judges, lawyers, jurors or even from convicts. The presence of DNA
technology also brings different traditions, cultures, languages and proce-
dures into interaction: it immediately places into dialogue—and tension—
science and law (Edmond, 2001; Jasanoff, 2006). While science aims to
convey “neutral” and “objective” knowledge, the intrinsic mission of the
legal system is to try to establish the “truth of facts” based on scientific
evidence and decide on the guilt or innocence of a person accused of com-
mitting a crime. In short, a DNA profile is subject to a transformative and
contingent process that involves several actors, practices and organiza-
tional structures. To achieve the status as credible and robust, DNA evi-
dence is subject to a series of events that highlight technical-scientific,
legal and bureaucratic procedures, which sociologist Michael Lynch and
his colleagues (Lynch et al., 2008) have termed “administrative
objectivity”.
50 H. MACHADO AND R. GRANJA

THE CSI EFFECT AND THE ASSOCIATED RISKS

Criminal investigation using the potential of forensic genetics has attracted
media attention, fuelling a phenomenon that many people call the “CSI
effect”. Television representations of criminal investigation focus on tech-
nology: the true heroes of police series are no longer detectives but instead
forensic identification technologies (Kruse, 2010; Machado & Prainsack,
2012). DNA evidence assumes a particularly important role in this regard
since it symbolizes an ideology in which machines are more reliable and
“safer” than human action and knowledge.
Although there is no consensus as to whether or not there is a “CSI
effect”, and the exact nature of this phenomenon (see Ley, Jankowski, &
Brewer, 2010), it is generally associated with the idea that judges and
juries allegedly attribute more weight to evidence obtained through the
application of molecular genetic techniques than to other types of evi-
dence. Police stories inspired by DNA technology use cultural images that
reflect a dominant idea, which is taken as being accurate and absolute, in
relation to the work of researchers and the decisive power of forensic iden-
tification techniques—in particular, the perception that DNA evidence
offers “infallible evidence”. This set of ideas is propagated not only by
television crime drama that focuses on the use of forensic science but also
by journalists, lawyers and other actors in the justice system, such as
judges, public prosecutors and eventually the police officers themselves.
Academic studies of how the media portray the uses of forensic investi-
gation technologies in criminal investigations, and the effects that this
coverage may have on different audiences, have increased in recent years.
These studies focus especially in the adversarial judicial system, in which
jurors and barristers take centre stage: juries (citizens) can decide whether
or not the accused (defendants) are guilty, and it is up to the representa-
tives of the parties involved to argue about the validity and meaning of the
evidence admitted to trial. The judge often plays the role of a “passive
arbitrator”, responsible for defining the rules of the trial and whether or
not the presented evidence may be admitted.
Existing literature on the alleged CSI effect has mainly discussed the
way that television series shape audience perceptions of DNA technology,
routine crime scene analysis procedures and the steps used to identify
criminal offenders, given that audiences are generally distant from the
“real world” of criminal investigation and court work. The main focus of
these studies has been on the influence of series such as CSI on the
 4 DNA TECHNOLOGIES IN CRIMINAL INVESTIGATION AND COURTS 51

respective viewers (Brewer & Ley, 2010; Schweitzer & Saks, 2007), on
jurors—ordinary citizens summoned by courts to evaluate criminal cases
that may be complex and may involve DNA evidence—and also on judges
and police investigators themselves (Cole & Dioso-Villa, 2007; Durnal,
2010; Huey, 2010; Shelton, Kim, & Barak, 2006).
There is also a study group focusing on how a specific social group,
individuals serving prison sentences, views media messages about DNA
technology. According to existing studies (Machado & Prainsack, 2012;
Machado, Santos, & Silva, 2011; Prainsack & Kitzberger, 2009), prison-
ers tend to believe that DNA evidence has almost absolute power in terms
of identification, based on the idea that the genetic profile is a technology
with a probative and criminal identification capability which is far superior
to fingerprints. However, the infallibility of DNA technology is not con-
sidered to be absolute by these inmates: they accentuate the possibility of
human error and harbour strong suspicions of police officers or malicious
individuals who may deliberately “plant” biological traces in crime scenes
to incriminate them. They have also stated that they fear that the authori-
ties will lie about the existence of DNA evidence to obtain confessions
from criminal suspects (Machado et al., 2011).
Another aspect to be noted concerning the consequences that the TV
series has on the professionals of the justice system is the concern har-
boured by the community of forensic scientists in relation to the alleged
lack of public literacy. The CSI effect, together with a lack of literacy on
the probabilistic framework involved in the interpretation of DNA evi-
dence, is considered by many forensic geneticists to be the major obstacle
in their task of communicating the results of DNA analysis to members of
the criminal justice system (Amorim, 2012; Amorim et al., 2016). A recent
study on the subject, based on the social representations of members of
the forensic genetics community in Europe, highlights the scientists’ con-
cerns about how the professionals of the justice system and members of
the public attribute an excessively “enthusiastic” and “optimistic” value in
relation to DNA’s capacity as evidence in court cases (Amelung, Granja, &
Machado, 2019). In response to these challenges, there are a few strate-
gies for addressing such risk communication. Some examples include pro-
viding concrete models for good practice for evaluative expert reporting
and suggesting standards for evaluative reporting within professional net-
works, such as the European Network of Forensic Science Institutes
(ENFSI) (Biedermann, Champod, & Willis, 2017).
52 H. MACHADO AND R. GRANJA

CONCLUDING REMARKS
The risk associated with the use of DNA technologies in the criminal jus-
tice system most commonly identified in the literature, in the fields of
forensic genetics and the social sciences, regards the myth of the infallibil-
ity of genetic identification. Academic research reveals how notions related
to the alleged infallibility of DNA technologies can condition the conduct
of the police investigation itself, and how evidence is appraised in court.
To this effect, it is desirable to question the framework of DNA evidence
and consider the circumstances of each specific case. One possible way is
to consider that the DNA profile should only be used as a means of back-
ing up other types of evidence, and to safeguard the principle of equal
access to evidence, defence and prosecution, as already occurs in most
justice systems.
Another risk arising from the use of DNA technology, which should
not be dissociated from the myth of its infallibility, concerns the risk of
stigmatization arising from social inequalities, which are reproduced as
soon as police forces decide to collect a biological sample of certain indi-
viduals to the detriment of others. The literature on sociology and crimi-
nology has systematically referred to the way that police practices primarily
target individuals and communities who are considered to pose risks. This
risk of suspicion is directed towards identification and subsequent collec-
tion of data (DNA profile and other biometric data) from the most
deprived social groups and individuals belonging to so-called ethnic
minorities (Chow-White & Duster, 2011; Cole & Lynch, 2006; Duster,
2006; Skinner, 2013; Williams & Johnson, 2004b).

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