DNA Clandestine Collection, Data Protection and Rule of Evidence. Jeopardizing an Homicide Investigation?

After a three years investigation the public prosecutor of Bergamo (a city near Milan) arrested the alleged author of the homicide of a young girl. The suspect has been found thanks to a massive DNA analysis that involved about 18.000 residents of the area, that led, after the skimming of the majority of the genetic profiles, to only two “candidates” .

To obtain the genetic samples to be compared with those found on the crime scene, the investigators faked a routine traffic control check-point, asking the suspect to pass the alcool-test. Further more – as the media say – the investigators were able to collect “organic fluids” from the suspect’s mother unbeknownst to her.

In this way of investigating the homicide there are two issue that haven’t been taken into account so far: what do the investigators do with the 18.000 DNA samples that they’ve collected and, more important, if a “clandestine” DNA sample collection legal under the Italian Rule of Evidence and Data Protection Regulation.

About the first issue: hopefully the “de facto” biobank should be destroyed once no more useful for the investigation, but neither public information is available nor the Data Protection Authority told a word about it. If this is not the case, this 18.000 samples will be used as a comparison for all the future investigation, meaning that those resident who voluntary gave out their samples will be routinely “investigated” unbeknownst to them.

About the second issue: the suspect’s mother has not been charged since there is no evidence of her connection with the crime. So, as a citizen not charged of anything, should have been told by the investigators that they were collecting her genetic sample.

As per the suspect, the available information don’t reveal whether the clandestine genetic sample collection has been ordered BEFORE he was officially charged by the prosecutor or AFTER his official involvement in the case as the potential perpetrator. This might lead to the possibility for the defense lawyer to object the genetic evidence be part of the trial on the basis that both samples have been collected in a wrong way.

Frankly, as this homicide is a major case in Italy, I doubt that neither a judge nor the Data Protection Authority (very aggressive against SPAM and Social Networks misuse)  will “buy” this objection, even if – as I think – has some merit.

So, provided that the defense lawyers follow this path, the trial will take years to end, because of the legal issues involved with the genetic evidence (think of the Kercher murder, that is still re-tried after having gone up to the Supreme Court and back to the Court of appeals) thus allowing a culprit to stay out of jail longer than he deserves, or an innocent to be acquitted much too late.

As somebody said, big cases make bad justice.

Wrongful Conviction and Protection of the Innocent

Tomorrow, at the University of Milan, I shall participate to a round-table organized by the Italy Innocence Project. The topic is: The Italian Legal System and the Judiciary Mistake.

Here is the full program:

ERRORE GIUDIZIARIO E TUTELA DELL’INNOCENTE

WRONGFUL CONVICTION AND PROTECTION OF THE INNOCENT

EVENTO SPONSORIZZATO DAL CENTER FOR THE GLOBAL STUDY OF WRONGFUL CONVICTIONS DELLA FACOLTÀ DI LEGGE DELL’UNIVERSITÀ DI CINCINNATI, OHIO, STATI UNITI (DIRETTO DAL PROF. M. GODSEY)

VENERDIÌ€ 6 GIUGNO 2014 9.30 – 18.30

UNIVERSITAÌ€ DEGLI STUDI DI MILANO – SALA NAPOLEONICA – VIA SANT’ANTONIO 10

SALUTI INTRODUTTIVI: LUCA LUPÁRIA (Professor of Criminal Procedure at the University of Milan, Director of the Italy Innocence Project); VINICIO NARDO (Segretario dell’Unione delle Camere Penali )

PRIMA SESSIONE (ORE 09.50) COORDINA: PROF. LUCA LUPARIA

L’ESPERIENZA DEGLI STATI UNITI D’AMERICA
M
ARK GODSEY (Professor at the University of Cincinnati, Director of the Ohio Innocence Project)
JUSTIN BROOKS (Professor at the California Western School of Law, Director of the California Innocence Project)

LA TUTELA DEL CONDANNATO INNOCENTE IN EUROPA
M
ICHAEL NAUGHTON (Director of the University of Bristol Innocence Project, Director of the Innocence Network UK)
DAVID LANGWALLNER (Professor at the Griffith College of Dublin, Director of the Irish Innocence Project)
SYLVAIN CORMIER (Attorney, Director of the Innocence Project of France)
EVELYN BELL (Chief Scientist of the Knoops’ Innocence Project)
MARIA EJCHART-DUBOIS (Member of the Helsinki Foundation for Human Rights and of the Innocence Legal Clinic in Warsaw)

SECONDA SESSIONE (ORE 14.45)

CAUSE E RIMEDI DELL’ERRORE GIUDIZIARIO IN UNA PROSPETTIVA COMPARATA
M
ARTIN KILLIAS (Expert in Criminology, Professor at the Universities of St. Gallen, Lausanne and Zurich) DANIEL VANEK (Expert in forensic DNA identifications, Professor at the Charles University in Prague) ERIC VOLZ (International Innocence Expert, Director of The David House Agency)
ULF STRIDBECK (Professor in Criminal Law at the Faculty of Law, University of Oslo)

ERRORE GIUDIZIARIO E SISTEMA ITALIANO
T
AVOLA ROTONDA
LUCA LUPÁRIA (Professor of Criminal Procedure at the University of Milan, Director of the Italy Innocence Project) GIUSEPPE GENNARI (Judge at the Court of Milan)
ANDREA MONTI (Attorney, Expert in forensic DNA)
MARTINA CAGOSSI (Junior researcher at the University of Milan)

EVENTO GRATUITO (PREVIA ISCRIZIONE)

TRADUZIONE SIMULTANEA INGLESE-ITALIANO

Evento accreditato dall’Ordine degli Avvocati di Milano (n. 6 crediti formativi)

Faked DNA and Criminal Trials in Italy

“Authentication of forensic DNA samples” is a paper released on the last Forensic Science International: Genetics issue by a group of Israeli researchers. Authors claim to have found a method to fabricate artificial biological samples (and the way to tell the differences from the original one) and wish that their finding will become a standard in forensic procedures to maintaini “the high credibility of DNA evidence in the judiciary system.”

Does this method really affect criminal investigations and trials?

“We still are in the “bad cop” (or evidence tamperer) field who planted faked biological samples on the crime scene” – says Andrea Cocito, researcher at IFOM, Milan (IT.) In fact, the “fabricated-genetic-evidence defense” has been proven viable in the  OJ Simpson case tried between 1994 and 1995 in Los Angeles, USA. Mr. Simpson’s lawyers were able to raise the suspicion that the results of the analysys on the biological samples coming from the crime scene – aiming at Mr. Simpson as “owner” of the DNA – weren’t reliable enough because of the police handling lack of care. “If” – Cocito argues – “a biological sample has  really been found on the crime scene, if the sample isn’t planted and if it’s not been degraded, then I might analyze both samples (the crime scene one and the one belonging to the defendant) to see if I get a match. In these case, there couldn’t be reasonable doubts on the results.” Thus, matching the defendant biosample collected in a controlled environment with the sample found on the crime scene it is possible to tell the probability of a reciprocal match.

The actual problem, then, is not the intrinsic scientific reliability of a genetic analysis-produced evidence. The problem is the strength of the chain of custody (i.e. the possibility of tracking all the intermediary steps, from the crime scene to the Court.) It is evident that if during the journey some part of it is not verifiable, a possibility comes to arise a legitimate doubt that what came in Court might not be what has been found on the crime scene.

On this issue, Italian law n. 85/2009 that creates a local National DNA Database is very lazy. There is neither any explicit duty of guaranteing the chain of custody, nor a provision that prevent the use in Court of wrongly-handled biological samples.

This is the translation of an article I’ve written for Nova-IlSole24Ore. The Italian version is available here.

Italian NDNA database. The devil is in the details

On June 30, 2009, the Italian Parliament finally passed Law No. 85 that ratifies the Prum Convention and forms the legal ground for the creation of an Italian National DNA Database (NDNAD.)

Although this law might have benefited from UK and USA court experience in the field of DNA forensics, the current text indicates that neither British nor American case law have been taken into consideration. Furthermore, the law is flawed by a foggy understanding of the technicalities behind DNA profiling and sloppy wording that certainly will not facilitate the work of lawyers, prosecutors or judges. Just to highlight a few of these inconsistencies, it must be noted that art. 8 (Attivita` del laboratorio centrale per la banca dati nazionale del DNA – Activity of NDNA Database Central Laboratory) lacks any general provision that would oblige all the responsible parties to adopt serious and adequate security measures against unauthorized access, data tampering, and illegal handling of data and information. Continue reading

Italian data protection authority to (apparently) sanction Carabinieri’s DNA forensics biobank

On May, 25 2009 the Italian Data Protection Authority (DPA) disclosed the results of an investigation over the DNA forensics database run by the Carabinieri’s Raggruppamento Investigativo Speciale (RIS.) 1

According to the laconic press release, the DPA ordered RIS to enforce stricter security measures to track who access the database. Although the DPA (as often) didn’t release the full decision, it is a legitimate inference to say that RIS didn’t take DNA security seriously enough. DPA decision shares the same (flawed) cultural milieu of the Italian National DNA Database Institution Bill, soon to become into full force. The DPA objected nothing about RIS ( (as well as the NDNAD bill) to retain  both biological sample and DNA profile. By doing so, the DPA laid the foundation for the most pervasive, State-controlled citizen mass privacy violation.

Current DNA profiling methods, such as the SNPs (read “snips”) are powerful enough to allow the identification of a person, without the need of preserving the biological sample that provided the genetic profile. By saying that Carabinieri (and the Parliament) are allowed to do the contrary, means bear the effective risk of having analysis of a very diferrent (and uncontrolled) kind to be performed on the genetic code of the inhabitant of the Italian NDNAD.

Pandora’s pot would be – then – ready to be opened.

  1. One of the three main police force in Italy. The others are Polizia di Stato and Guardia di Finanza