PASSAGE ONE OF THE DAY: "For its part, the RCMP says the use of rapid DNA at crime scenes is years away. “Rapid DNA technology is currently limited in its ability to adequately analyze crime scene samples, which may be contaminated, degraded, or containing mixtures of two or more donors, limiting its usefulness in analyzing evidence collected at crime scenes,” said Sgt. Harold Pfleiderer, media relations officer for the RCMP, in an e-mail to Canadian Lawyer. “As with any new forensic technology, extensive research, validation, and training are required to ensure that results are scientifically valid and reliable before use in a court of law.”
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PASSAGE TWO OF THE DAY: "Currently, there is no software standard for the making of digital devices that produce evidence in court, says Sebastian Fischmeister, an associate professor at the University of Waterloo’s department of electrical and computer engineering. Fischmeister, whose work is around building software for automotive systems, medical devices, and avionics, also provides expert opinion on the reliability of software used in devices used to produce evidence for forensic use. If admissible in court, the rapid DNA technology will be “an entirely new device” to enter courtrooms, says Fischmeister. The description of the device mostly details the safety of the hardware for mobile use, he adds, but he has so far seen nothing that shows the standard followed for software development that would ensure reliable results. “You’re not allowed to fly an aircraft in Canada, or put an avionics module in an aircraft, if it hasn’t been approved by Transport Canada. You’re not allowed to sell a medical device if it has not been approved by Health Canada and you don’t have a licence for it, whereas you’re perfectly fine to sell whatever device produces or claims to produce evidence in court,” says Fischmeister. “There’s no licence for it, there’s no standards for it, there’s no regulator for it.” That’s unlikely to change, he says, as long as judges continue to accept evidence from devices that didn’t follow a mandatory standard."
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STORY: "Not so fast with that rapid DNA," by former Toronto Star reporter Yamri Taddese, published by Canadian Lawyer on November 16, 2015.
GIST: "Forensic DNA testing often conjures up an image of
technicians armed with pipets, looking gravely into mysterious blue
fluids, and big, intimidating machines. But what if a new technology did
to those technicians what e-mail did to the mailman? The impact
is perhaps less dramatic, but a high-tech, rapid DNA device promises to
turn DNA testing — a process that often takes weeks or months from the
point of extraction, mailing, receiving, inventory, and analysis — into a
fully automated, hands-free procedure that wraps in less than two
hours. “The idea with rapid DNA is to do what’s already done in the
laboratories, but instead of sending the sample to the lab, do it right
at booking [in police stations] or right at a travelling laboratory,”
says Cecilia Hageman, professor of forensic science at the University of
Ontario Institute of Technology. “This says we’re going to bypass the
laboratory; we’re just going to put the sample in, have the profile spit
out.” In the United States, the FBI is currently seeking to use
the rapid DNA technology in law enforcement, particularly in police
stations and at crime scenes. Unlike in Canada, many American
jurisdictions allow for collection of DNA samples from arrestees, which
then get added into a national DNA databank. Samples collected on arrest
are checked against DNA evidence in open investigations — such as those
collected from break-and-enter or sexual assault crime scenes — to see
if that particular arrestee is implicated in unsolved cases. “We
believe that the efficiencies obtained from the real-time analysis of an
arrestee’s DNA sample has tremendous potential to improve public safety
by focusing law enforcement investigative resources and assisting in
identifying putative perpetrators before they are released from
custody,” said Amy Hess, the FBI’s executive assistant director of
science and technology in a statement before the U.S. House Judiciary
Committee’s subcommittee on crime, terrorism, homeland security, and
investigations in June. The real-time notification of a DNA hit
against open cases also conserves investigative resources, Hess told the
committee, but it also means no time is lost in the investigation of
crimes. “Equally as important will be the protection of the public when
perpetrators are identified at the point of collection before being
released back into their communities at the completion of the normal
booking process,” she said. Currently, in both the U.S. and
Canada, federal laws require that accredited laboratories generate
genetic data for addition to the national DNA databank in compliance
with specific rules. But “rapid DNA technology has been designed for
use by law enforcement agencies at the point of booking for integration
following live scan fingerprint enrollment of an arrestee,” Hess
explained, adding any implementation must follow changes in the
legislation. In Canada, the potential use of rapid DNA at police
stations will require fundamental changes in the law. “The way things
work right now is that in Canada, when people are charged with a crime,
they can be forced under a DNA warrant to give a sample, and when
they’re convicted of a crime, they can be forced to give a sample for
upload to the databank,” says Hageman. Individuals cannot be forced
to give DNA samples on arrest under Canadian law. “Whether or not that
changes in Canada, that’s entirely in the lawyers’ and the politicians’
court,” she adds. Criminal lawyer Ricardo Federico predicts that
kind of change in law is next to impossible. “There’s nothing rapid
about Canadian DNA evidence,” he says. “It’s illegal to do this. It’s
not going to happen here; it’s not going to change. It would be
unconstitutional in Canada to do that. That’s my view.” James
Lockyer, a criminal lawyer and founding director of the Association in
Defence of the Wrongly Convicted, says collecting DNA samples from
arrested individuals would constitute illegal search and seizure and
violate the Canadian Charter of Rights and Freedoms. Unlike the
taking of fingerprints, which is not considered a violation of a
person’s right to their body or identity, the revealing power of DNA
samples are an invasion of an individual’s right to their person and
privacy, says Lockyer. “It’s like a person doesn’t want their medical
record available to the police. It just seems to me that the power of
the state should always have limitations and one of them should be that
your DNA is yours except through proper process.” Lockyer also
worries that if police have the power to collect DNA samples from
arrestees, they’d be more likely to arrest people they have no real case
against just to eliminate them as suspects. “It’d be very tempting to
do that,” he says. There’s no denying, however, that a larger DNA
databank would help avoid wrongful convictions or even exonerate those
who have been wrongfully convicted, says Lockyer. But “is that sort of
rather vague prospect enough to justify DNA banks include just arrested
persons? Not in my view, but it’s a policy decision.” The rapid
DNA technology isn’t meant for use at police stations alone. The idea is
also that investigators can use the tool at crime scenes and mobile
laboratories. Samples collected on the go may be added to the national
DNA databank and possibly be linked to other crimes. “If somebody is a
hit on a number of open break-and-enters or open sexual assaults, then,
of course, that has amazing repercussions for investigators,” says
Hageman. For its part, the RCMP says the use of rapid DNA at
crime scenes is years away. “Rapid DNA technology is currently limited
in its ability to adequately analyze crime scene samples, which may be
contaminated, degraded, or containing mixtures of two or more donors,
limiting its usefulness in analyzing evidence collected at crime
scenes,” said Sgt. Harold Pfleiderer, media relations officer for the
RCMP, in an e-mail to Canadian Lawyer. “As with any new
forensic technology, extensive research, validation, and training are
required to ensure that results are scientifically valid and reliable
before use in a court of law.” Currently, the Centre of Forensic
Sciences is the only institution in Canada using the rapid DNA
technology for testing purposes, according to the centre’s director
Anthony Tessarolo, who says his office purchased the technology this
year. “We see this as a trend; we see this as a direction that forensic
science and forensic DNA testing is likely to go. We want to be in front
of it, so innovation is one of our key values.” Advancement in
DNA technology has meant distinguishing among individuals to a very high
degree and being able to generate full DNA profiles from tiny samples.
“From an investigator’s standpoint, we want all of that. We want the
discriminating power, we want the sensitivity, but we also want it
fast,” says Tessarolo. Tessarolo emphasizes, however, that the
Centre for Forensic Sciences wants to know the technology intimately
before making recommendations about its use by police agencies. “We want
to make sure we’ve done the rigorous testing, we’ve identified what the
scientific limitations are behind it so that our investigators, police
agencies, are not the guinea pigs,” he says. “Sometimes, when new technologies come to market, it’s the police, the investigators that become the guinea pigs.” The
centre is now testing the device on what are called comparison DNA
samples, which have been collected on consent or through court orders.
With those samples, sample size and quality are not of concern, explains
Tessarolo. The next step would be to test the device on discarded
samples, such as cigarette butts and napkins thrown into garbage bins,
which would be more challenging. Finally, it will test the rapid DNA
technology on the most challenging of samples — those collected from
crime scenes. Currently, there is no software standard for the
making of digital devices that produce evidence in court, says Sebastian
Fischmeister, an associate professor at the University of Waterloo’s
department of electrical and computer engineering. Fischmeister, whose
work is around building software for automotive systems, medical
devices, and avionics, also provides expert opinion on the reliability
of software used in devices used to produce evidence for forensic use. If
admissible in court, the rapid DNA technology will be “an entirely new
device” to enter courtrooms, says Fischmeister. The description of the
device mostly details the safety of the hardware for mobile use, he
adds, but he has so far seen nothing that shows the standard followed
for software development that would ensure reliable results. “You’re not
allowed to fly an aircraft in Canada, or put an avionics module in an
aircraft, if it hasn’t been approved by Transport Canada. You’re not
allowed to sell a medical device if it has not been approved by Health
Canada and you don’t have a licence for it, whereas you’re perfectly
fine to sell whatever device produces or claims to produce evidence in
court,” says Fischmeister. “There’s no licence for it, there’s no
standards for it, there’s no regulator for it.” That’s unlikely
to change, he says, as long as judges continue to accept evidence from
devices that didn’t follow a mandatory standard."
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
