When I first started working internationally, about 10 years ago, my presentations would often start with a rhetorical question that went something like this: “What is the most important factor influencing the success of forensic DNA databasing? Is it the quality of the laboratory performing the analysis? Is it the training and education of the police ensuring that they collect valuable evidence? Or perhaps the skill with which prosecutors can leverage the probative value of DNA to support their victims’ testimony?” But of course it was a loaded question, because I had my own answer. “It’s actually none of these…” I would say. “The most important factor influencing the potential effect of DNA in any criminal justice system is what the law allows you to do with it.”
Now I am a little biased here. I am a lawyer after all. But I have a pretty good argument. You can have the best, most advanced laboratory system in the world, the most rigorous quality assurance procedures, and send specialized crime scene analysts to every crime scene; but, those factors mean little if the law does not allow you leverage the full potential of the technology and the evidence.
Nowhere is that dynamic more tragically clear than in South Africa.
I first traveled to South Africa 10 years ago. I left the Department of Justice less than a year earlier and had been invited to participate in a meeting of Interpol’s DNA Expert Monitoring Group in Pretoria. It was my first trip to the continent, so to say that I was excited is an understatement. I did not, in all honesty though, harbor great expectations regarding what I would see from the standpoint of South Africa’s use of DNA technology. But when I saw what the South African Police Service (SAPS) was doing, I was nothing short of astounded. The SAPS had an automated system for DNA analysis that was unique in the world. As Johann van Newkierk toured us through the laboratory I realized that it was, at that time, the most advanced forensic DNA testing robotics system I had ever seen. I was so impressed that I literally walked out of the lab, got on my phone, and called my former colleagues at DOJ trying to convince them to bring Johann and his colleagues to the U.S. so that they could explain what they were doing. South Africa was going to be a model, not only for Africa, but perhaps for the world. They had crime statistics that proved South Africa to be one of the most sexually violent places on the planet and they had the capacity and technical sophistication to hit back hard. South Africa was going to prove the power of DNA like nowhere else.
Boy was I wrong.
I have just returned from another trip to South Africa, a trip I have made many times since my first visit. And to be clear, it is not the police that have failed, nor is it the technology, nor is it the laboratory personnel. Rather, ten years after South Africa created one of the most important laboratory infrastructures in the world, the politicians in the South African Parliament have still failed to give police the legal authority to save literally thousands upon thousands of lives with DNA. Ten years later and South Africa, in contrast with more than 50 countries around the world, still has no legislation allowing for the establishment of a forensic DNA database.