By Al Macina
By contract between the U.S. and Chilean governments, Chile soon will be the proud owner of a DNA database system. All our 50 states possess such systems, regulated per state law. The FBI has operated a national database under federal law since 1994 that now contains over 1.5 million DNA profiles from forensic samples and convicted offenders collected over the past ten years. As part of its various efforts to aid foreign law enforcement efforts, the FBI has made a recent deal to install such a system in Chile.
To stimulate discussion in Chile of the issues raised by the use of a database and DNA evidence, the U.S. Department of State, the FBI and law professionals and judges from the U.S., Chile and the Philippines convened last week in Concepción, an important port city between Santiago and Temuco. Among them spoke former public defender Peter Neufeld, co-founder of the Innocence Project based in New York City, a non-profit organization that since 1992 has been using DNA technology to reverse some of the grave mistakes made in criminal justice. Mr. Neufeld presented the incredible pros and some of the cons of DNA use in Concepción and then in Temuco to a receptive and engaged audience of public defense attorneys, prosecutors, judges, the media and myself.
What does the database mean for Chile? Mr. Neufeld explained that a small class of violent crime such as rape and battery can sometimes present physical evidence that can be subjected to DNA tests. Samples can provide strong and often certain proof to augment or disfavor testimonial evidence of witnesses. Samples can help to exonerate as much as they can provide strong certainty in conviction of the correct defendant. In the U.S., post-conviction use of DNA by the Innocence Project has to date served to free 142 innocent people over the past twelve years. Exoneration goes beyond giving one his or her rightful freedom, but gives us the added benefit of knowing that another suspect remains. Law enforcement can then attempt to prevent to bring the proper person to justice, thus likely preventing further crime. Neufeld also keyed Chilean defenders into pre-verdict use (i.e., use at trial) of DNA evidence as part of competent defense to avoid wrongful convictions in the first place. A test result tending to exonerate the client can only be worth the risk that the DNA evidence implicates him or her, in which case the defense attorney can formulate a defense that avoids using DNA as its backbone.
While Chile uses DNA on a limited basis, a centralized database should permit the country to be able to take full advantage of these benefits. But the use of DNA evidence and its corresponding database comes with important responsibilities. Currently charged with handling and testing DNA material, Chile’s Servicio Médico Legal will oversee the coming database. Mr. Neufeld mandated that the Service, which hopes to create four additional DNA labs, should be overseen by another body to certify its quality control practices. The lab personnel asserts that it can self-regulate, to which Neufeld recited the potential problems that can far outweigh the benefits of a haphazardly run lab. In the U.S., mistaken labeling and handling has led to erroneous convictions, paternity resolutions, and familial inheritance. Privacy concerns remain at issue, as where no laws yet control distribution of DNA findings, according to Washington, D.C. Superior Court judge José M. López who attended the conference. Potential problems include the use of DNA tests that show a predisposition to disease or alcoholism by employers or insurance companies.
Without tight controls on the use of DNA evidence, its great benefits will be lost with the lack of confidence in what it can tell us about crime scenes that no other evidence can. Mr. Neufeld has further utilized data from exonerations achieved by the Innocence Project efforts across the country to expose flaws in the justice system that led to erroneous convictions in the first place. Of the small number of exonerations among the millions of those convicted across the U.S., 78% of these 142 persons went to jail based predominantly on incorrect eyewitness identifications. Other factors included skewed testimony of informants and the use of error-prone hair matching techniques. Finally, mishandled DNA test results figured into 4% of these convictions later shown to be incorrect by the Project. This last exemplifies the dual nature of DNA evidence: its influential power to condemn and as well as to free. This power must be respected in the United States so as to correct some of the current injustice. Nor can DNA use be taken lightly in Chile in light of its emerging criminal justice system and the opportunity to reap the generous benefits and avoid the pitfalls encountered by in the U.S. From my research and subjective experience, Chilean criminal justice professionals present a hopeful, excited and responsible attitude toward the prospect of such a challenge.
