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Who Framed DNA Analysis?

Thu, 10/01/2009 - 4:00am
Chris Asplen

My guess is that the idea of framing someone else for a crime came only minutes after the first crime was committed. If Cain had neighbors, or co-workers, or a creepy guy down the street, I think he probably would have tried to put Abel’s death off on him. Avoiding culpability by placing it on someone else isn’t new and it begins at an early age. A child, his hand still stuck literally in the cookie jar, will try to blame his imaginary friend—a less creative child will blame the cookie monster. The next logical and tangible step from “blaming” comes in “framing” someone else. It is simply a more active form of diverting blame.

So when I got a call from one of the national news agencies recently asking me about a New York Times article citing a new study from Israel showing the ability to “fabricate” DNA, I was not nearly as excited about it as they were. Don’t get me wrong. Every time there is an allegation that DNA is not as effective or safe or reliable as our experience tells us, we need to have a laser like focus on the question. Criminal justice systems rely heavily on DNA, and its accuracy determines the course of people’s lives, victim and criminal alike. But the allegation that some scientific laboratory—that just also happens to have a technology to determine real from manufactured DNA—can manufacture DNA, doesn’t begin to look like a game changer.

We’ve been down this road before. What about cloning? What about planting DNA? What about chimeras? What about twins? All have infinitesimal possibilities to impact the effect and benefits of DNA technology. Prosecutions rarely rely solely on DNA. Investigators use DNA and a database hit as a starting point from which other evidence is developed. And when DNA results don’t make sense or run seriously counter to other evidence, both the investigative process and the judicial process have mechanisms to ferret out erroneous or dangerous reliance on DNA. Usually the answer is more DNA testing.

One of my favorite stories about “framing” someone else with DNA comes from Wisconsin. Police had incarcerated a serial rapist who had been connected to several crimes by DNA. He was insistent, however, that the DNA tests were wrong and that the real rapist was still on the loose while he was in jail. When a rape occurred similar to the ones he was accused of and when the DNA profile matched the one attributed to him, his argument of innocence was supported. How could the DNA tests in his case be accurate if a crime committed on the “outside” contained the exact same profile when he was in jail the whole time?

Unfortunately for the criminal, Milwaukee, Wisconsin, is home to one of the country’s most knowledgeable DNA prosecutors. Norm Gahn knew that the scenario made no sense scientifically and had his investigators do some digging. As it turned out, the “victim” in the most recent case—the one occurring while the defendant was in jail—knew the defendant. Eventually, the victim admitted to helping the defendant hatch a relatively creative plan. The defendant used a catsup packet to mail some of his semen to his accomplice. She then spread the biological material on herself, called the police, and claimed she had been raped.

The coverage of the journal article by the New York Times was inartful at best. For example, it stated “it may be possible to scavenge anyone’s DNA from a discarded drinking cup or cigarette butt and turn it into a saliva sample that could be submitted to a genetic testing company that measures ancestry or the risk of getting various diseases.” Kind of a silly approach isn’t it? It’s not about the saliva; it’s about the DNA in the saliva. You replicate the DNA, not the biological fluid, to perform the appropriate and necessary as well as the nefarious (if you were so inclined). But the replication of the saliva is the new part of the story so the author tries to squeeze an old concern into a new package.

The story highlights a fact that most people in the forensic DNA community already believe. That while DNA technology may be the best scientific tool available to law enforcement it will never replace creative, thoughtful police and prosecutors who pay attention to the details.

Chris Asplen is a former Assistant U.S. Attorney and local prosecutor specializing in the prosecution of sex crimes and child abuse.He was also formerly the Executive Director of the National Commission on the Future of DNA Evidence for the U.S. Department of Justice and Director of the DNA Unit for the National District Attorneys Association. Currently, he consults with local, state, and foreign governments and law enforcement agencies on the use of forensic DNA technology. Chris is also a member of the Crime Victim Bar Association.

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