Risky profiles: societal dimensions of forensic uses of DNA profiling technologies

Abstract

This editorial opens with a brief overview of social science and STS work on the use of forensic DNA technologies and DNA evidence. We argue that social science and STS scholars have made a valuable contribution to destabilizing and deconstructing the image of DNA technologies as infallible producers of scientific truth. However, there are some aspects of forensic DNA practices and technologies which have not yet seen the same level of critical scrutiny. The second part of the editorial discusses the contributions to this Special Issue, and considers how they address some of the gaps in social science and STS research identified.

Keywords:

• DNA profiling
• forensic genetics
• DNA databasing

Introduction

DNA profiling technologies have had a considerable impact on how forensic science and criminal investigation have been understood, carried out, and regulated in the last 25 years. DNA testing is typically presented – not only in the public, but also in the legal domain – as an almost failsafe way to identify individuals and to match traces found at crime scenes with a suspect's profile. In the light of the capacity for truth-creating attributed to forensic DNA technologies, they have become crucial elements of national systems of criminal prosecution and criminal justice. In addition, as a result of growing transnational mobility and the global use of information and communication technologies, crime and crime prevention issues are increasingly being addressed by agencies and policy actors beyond the nation state. In the European context, the so-called Prüm regime obliges law enforcement authorities in all EU countries to render their forensic DNA databases searchable for other member states (on a match/no match basis). Member states which do not yet have centralized forensic DNA databases are legally obliged to establish them in the near future (Prainsack and Toom 2010, McCartney et al. 2011). In sum, the importance of forensic DNA databasing will continue to increase in the political and public arenas across Europe.

The existing literature on DNA profiling and databasing from social-scientific and socio-legal studies perspectives has so far been mainly focused on the situation in the UK and the US (for exceptions, see the contributions in Hindmarsh and Prainsack 2010, Machado and Prainsack 2012). Science, technology and society (STS) scholars Sheila Jasanoff and Michael Lynch were among those who pioneered the field by putting practices and institutions at the interface of law and forensic science on the agenda of social science and STS research (see, for example, Jasanoff 1998, 2004, 2006, Lynch 2003, 2004). Simon Cole's seminal work on the history of criminal identification techniques and technologies provided the first social science account of the emergence and practice of the “science” of fingerprinting (Cole 2001). At the same time, Cole started to open the black box of forensic identification practices and technologies more widely. He was also part of the team of four authors who examined, among other things, the shift from fingerprinting to DNA analysis as the “gold standard” in forensic science (Lynch et al. 2008). These authors speak of an “inversion of credibility” (Lynch et al. 2008, p. 302) that has taken place, with traditional fingerprinting giving way to DNA analysis as the forensic technology that is widely seen as the most reliable and robust, and, in the eyes of many stakeholder groups, even as infallible.

Pertaining to the era of DNA, and focusing on the situation in the UK specifically, sociologist Robin Williams and human geographer Paul Johnson (Williams and Johnson 2008) employed a socio-historical perspective in their analysis of the development and use of the UK's National DNA Database (NDNAD). With regard to the US, where social science and STS research have, overall, focused less on forensic databases and more on the production of expertise and evidence in court, Jay Aronson (2007) provided a historical account of the early practices, the scientific and legal controversies, and the ultimately successful acceptance of forensic DNA evidence in court.

Another particularity of social science and STS research in this domain is that it has so far mostly concentrated its gaze on “high end” forensic technologies, namely those which received a lot of public attention because they were new, because stakeholders in the criminal justice system struggled to determine the parameters of scientific reliability and admissibility, and/or because they were prominently featured in the media (or all of these reasons together). The volume Genetic suspects: global governance of forensic DNA profiling and databasing, edited by political scientists Richard Hindmarsh and Barbara Prainsack (2010), continues this trend. While the use of DNA analysis for police investigations and forensic casework dates back to the late 1980s, the second half of the 1990s marked the beginning of the quest to render DNA profiles systematically and routinely searchable and minable by setting up centralized DNA databases in many countries around the world. Genetic suspects comprises contributions from academics and practitioners in different disciplines and regions of the world discussing the history, regulation, practical workings of, and public discourse on national DNA databases for forensic and police purposes, highlighting similarities, but also important differences, between individual countries. Also from a comparative perspective, Sheldon Krimsky and Tania Simoncelli's book Genetic justice: DNA data banks, criminal investigations, and civil liberties (2011) discusses the establishment of forensic DNA databases in the UK, Japan, Australia, and Italy. Their focus is not so much on the practices and regulations pertaining to forensic DNA databases, and public debates surrounding them, but instead on civil rights and liberties, as well as ethical concerns. Socio-legal perspectives are also offered by Kobilinsky et al. (2004), Semikhodskii (2007), and by the edited volume convened by David Lazer (2004). The latter volume covers a wide range of topics from the importance of meaning and context of DNA at a crime scene to its use in post-conviction examinations, as well as the social, legal, and ethical issues associated with DNA databases, and it is one of the most widely cited works on the topic of legal and ethical perspectives on forensic DNA databases. Social science perspectives are represented in Lazer's edited collection, but they are less pronounced than legal studies dimensions and ethical considerations. A very instructive and empirically rich account of the social and legal issues at stake is offered in Carole McCartney's book on Forensic identification and criminal justice: forensic science, justice and risk (2006); McCartney uses excerpts from interviews with representatives of the British criminal justice system to discuss how DNA technologies are used in professional practice.

In sum, social science (including STS and socio-legal studies) scholars have been able to make significant contributions to refining our understanding of the interplay of law, technology, and society. While the aforementioned works take a “big picture” approach to ethical, legal, and societal dimensions of forensic DNA technologies, or DNA databasing specifically, there are a number of singular aspects which social science and STS scholars have addressed. The topic of ethnicity and “race” is one such area. In particular, the work of Troy Duster (2004, 2006a, 2006b, 2008) has made a significant contribution to the scholarly as well as public debate. Duster has helped to render visible the social and political meanings present in scientific and operational categories and classifications used in forensic science and criminal investigation, and to highlight power structures in this field, in particular those affecting “ethnic” minorities. More recently, interest in aspects of “race” and “ethnicity” at the interface of law, science, and society has grown, perhaps also due to increasing media coverage of racial profiling and racial biases in the criminal justice system, many of which are summarized in Harriet Washington's (2010) chapter on “Racial aspects of US DNA forensics.” The work of the Dutch STS scholar Amade M'charek (2008a, 2008b; see also M'charek et al. 2012) has also been particularly helpful in deconstructing the claim inherent in forensic genetics that “race” can be objectified and emptied of its political and social meaning.

However, there are other aspects of forensic DNA practices and technologies which have not yet seen the same level of critical scrutiny from social science scholars. In these areas, the scope and direction of research is mostly restrained by the tacit acceptance of the very categories of law enforcement agencies. One example is the notion of the convict. Social science work in this field rarely treats convicts as stakeholders or problematizes the term. Some accounts even equate convicts with actual offenders, thereby accepting several truth claims inherent in legal systems: that all convicted people are guilty; that the expertise of convicts pertaining to the science and technology used in legal processes is to be subordinated to, or to be ignored at the cost of, the expertise of other experts; and that such expertise on the part of convicts is not to be recognized as professional expertise (Prainsack 2012). Criminologist Richard Leo (2005, p. 213; see also Lofquist 2001) points to a similar problem related to the otherwise very laudable attention that social scientists have paid to the issue of wrongful convictions. Boosted also by the Innocence Project, a US-based initiative of defense lawyers and others who work pro bono to free the wrongfully convicted (for more details, see Machado and Prainsack 2012, chapter 8), an increasing number of social scientists have started to look into the reasons for wrongful convictions, and shed light on their social and political determinants. However, only a few (e.g. Harmon 2001a, 2001b) have, as Leo (2005) points out, challenged the definition and category of the actors themselves. Leo speaks of an “unexamined assumption” underlying much social science work. Scholars need, he argues, “to move beyond the legal categories and concepts handed to them by journalists and lawyers [… and] do more than descriptive case studies that recirculate the same essential ideas” (Leo 2005, p. 215).

Another topic that has arguably not yet received much attention from STS and social science scholars is the use of forensic technologies in criminal investigations (and the process leading up to them). Although there is an impressive body of literature on the use of DNA evidence in court (e.g. Aronson 2007, Lynch et al. 2008), there are few empirical studies exploring how forensic technologies are employed “in the field.” The area of phenotypic profiling is a case in point. Although a small number of publications address the likely societal effects (M'charek 2008a, 2008b, M'charek et al. 2012) or discuss ethical and regulatory concerns pertaining to phenotypic profiling in forensics and in criminal investigation (Koops and Schellekens 2008, Kayser and Schneider 2009), there are no fine-grained studies of how phenotypic profiling is being used by law enforcement agencies in different countries. Among the rare exceptions of efforts to explore practices “on the ground” are the works of the authors contributing to this volume, as well as Rees (2010).

DNA profiling technologies are used not only in criminal investigations and criminal justice, but also in immigration contexts. Since the 1990s, many countries around the world have begun to use DNA testing to establish biological relatedness in family reunification cases. Although media coverage of the issue is quite extensive (e.g. Funk 2007, 2009, Gaserow 2007, Swarns 2007, Martin 2011), research and scientific publications in this field are rare. So far, the topic has stirred interest only among legal scholars and in the human rights literature (Taitz et al. 2002a, 2002b, Frenz 2008, Murdock 2008). Social science scholars have mostly focused on the use of parental testing and its implications for family relations, parenthood, and gender aspects within one country (e.g. Richards 2010, Fonseca 2011, Turney 2011). The impact of forensic genetics on immigration policies and family reunification still remains a non-issue for most social scientists. DNA profiling in immigration contexts certainly offers some advantages over traditional methods of identification. It allows applicants for family reunification to prove their family status even if they do not possess any official documents (e.g. certificates of birth and marriage). It might also be considered an effective instrument to control immigration, to prevent child trafficking and to limit fraudulent family reunification. However, the use of parental testing in immigration contexts also raises serious concerns that are yet to be studied, as initial research shows (Lemke and Rödel 2011, Heinemann and Lemke in press). The general legal and social double standard which treats native citizens and immigrants differently is reinforced with regard to the handling of genetic data, data protection and the underlying concept of the family in family and immigration law. Additionally, there is a tendency to criminalize migrants (Aas 2006, 2011). For example, in some EU countries migrants' DNA profiles are routinely stored in forensic DNA databases, together with profiles taken from suspects or those convicted of criminal offenses, even though the migrants' own samples were not taken in the context of a criminal investigation. These findings are just a starting point, and further research on the use of forensic genetics in immigration contexts is needed.

This Special Issue seeks to make a contribution to opening some of these black boxes. It points to so far neglected areas of research, and identifies new perspectives on forensic technologies by social scientists.

Contributions to this Special Issue

Despite their importance in criminal investigations and prosecution, many practitioners and scientists without training in forensic genetics still feel that they do not fully “understand” DNA profiling technologies (see, for example, Dahl 2010). Antonio Amorim's contribution opens this Special Issue with an introduction to forensic genetics from the perspective of a molecular biologist seeking to intensify the dialogue with social scientists. After a brief introduction to genetics and its use in modern forensics, Amorim argues that while classical forensic technologies rely on the idea of discernible uniqueness, forensic genetic technologies are concerned with types of observation. Thus, forensic genetics produces “facts” based on the comparison of the probabilities for a given observation under different, mutually exclusive hypotheses, which he emphasizes sets genetic technologies apart from other forensic technologies. Amorim's chapter will hopefully indeed help to foster an intensified exchange between forensic scientists and social scientists that would in turn enhance the quality of science, regulation, and the ethical debate in this field.

Helena Machado's article offers fascinating insights in a so far underexplored field of research. Her study engages with the cultural imaginary that presents DNA profiles as infallible evidence. While much scholarly literature is devoted to questions of how media representations of the uses of forensic identification technologies influence the general public or jurors, judges and police investigators, the so-called CSI effect (for a critical discussion of this concept see, for example, Cole and Dioso-Villa 2007, 2009), prisoners' views of forensic and police use of DNA analysis have until recently (Prainsack and Kitzberger 2009, Machado and Prainsack 2012) not been a research topic at all. Machado's empirical study is based on qualitative interviews with prison inmates in Portugal and complicates the picture of the so-called CSI effect. Machado shows that prisoners' narratives display a combination of three different kinds of effects: the “moral authority effect” that reaffirms and consolidates the moral authority of the police seen as using the most advanced technology available for identification work; the “(credible) distortion of reality effect” that creates unrealistic and exaggerated expectations regarding forensic investigations; and the “educational effect” that considers the ways in which the television program is used to educate and inform the larger public on the one hand and the (potential) criminals on the other. Machado's study shows that the prison inmates adopted a critical and reflexive stance towards the forensic use of DNA analysis that is shaped by their (negative) experiences of the Portuguese criminal justice system and their biographical trajectories. The article contributes to a more contextualized and culturally informed account of the workings of “tracing technologies” (Machado and Prainsack 2012).

Dana Wilson-Kovacs, David Wyatt, and Christine Hauskeller further investigate the “forensic imaginary” (Williams 2010, p. 135) that renders DNA analysis the provider of irrefutable evidence. Like Machado, they incorporate the perspectives of so far underrepresented groups in social science research on forensic technologies, and explore how they make sense of DNA analysis and forensic DNA databases: in this case, the underrepresented groups are “ordinary people.” Their contribution discusses the results of a Mass Observation (MO) of the British public on “Genes, Genetics and Cloning” which was carried out in 2006. (Since 1937, MO surveys have been conducted regularly in Britain to collect information about the views and lives of “ordinary people.” They were abolished in the mid-1960s and reinstated in 1981.) One important finding pertaining to the results of the MO in 2006 was that most of the respondents regarded the use of DNA in forensics and criminal investigation “as the least controversial and most beneficial of genetic applications” (p. 788). However, many respondents also expressed concern about possible overvaluation of DNA evidence in criminal investigations and in court, and some also cautioned against the establishment of a universal DNA database that includes the DNA profiles of all citizens. Like Machado, Wilson-Kovacs et al. demonstrate that cultural resources and personal experiences shape the understanding of forensic DNA analysis and its possible achievements and pitfalls.

In a similar vein, Corinna Kruse's contribution emphasizes the importance of “legal storytelling” in criminal investigations. Kruse challenges the view that DNA evidence in criminal investigations and in court is self-evident and unproblematic. Basing her argument on ethnographic fieldwork and interviews with forensic scientists, crime scene officers, police detectives, and prosecutors in Sweden, she argues compellingly that the presentation of DNA evidence in court is preceded by a process of transforming laboratory results into cultural narratives. It is this process of transformation that renders DNA evidence legally meaningful. Kruse convincingly demonstrates that legal storytelling is also an issue during pre-trial investigations. The empirical material she presents illustrates how during a pre-trial investigation, multiple possible stories are assessed and evaluated to make connections between different pieces of evidence and how these interpretations draw on the same scripts and legal categories that are mobilized and used later in the trial. Kruse's article not only argues that it is necessary to expand the social science perspective on legal storytelling to pre-trial investigations, but also shows that no forensic evidence – not even DNA evidence – can be assessed without an interpretive framework that transforms it into a legally meaningful narrative. Finally, Kruse reminds us that for a social science account of DNA analysis, it is not sufficient to conceive of the gene as a “cultural icon” (Nelkin and Lindee 1995). We also have to take into account a complementary perspective that points to the other side of this bidirectional dynamics: how DNA evidence is mobilized and interpreted within already existing cultural narratives and established legal categories.

Until recently, there have rarely been any comparative analyses in social studies of forensic technologies. Victor Toom's article makes an important contribution to filling this gap. His article systematically compares the governance structures and organizational regimes of two national forensic DNA databases, the National DNA Database of England and Wales (NDNAD) and the Dutch DNA database. Toom's analysis elucidates important similarities as well as differences in the structure and the workings of the respective databases. Toom cautiously concludes that the Dutch DNA database is as effective and efficient in terms of criminal investigation as its counterpart, but its organizational structure and practices result in fewer infringements of individual rights and legal principles. Hence, the analysis not only offers important insights into the different trajectories and organizational patters of two national DNA databases but also makes it possible to derive criteria for a “best practice” model that might inform and improve the process of internationalization and Europeanization of DNA databases.

As our review of the existing literature in the field and the articles in this Special Issue show, social science and STS scholars are making a valuable contribution to destabilizing and deconstructing the image of DNA technologies as infallible producers of scientific truth. However, more empirical studies of the role of science and technology in criminal investigation and the use of forensic technologies in police practice are needed, as is more conceptual work to tackle some of the “unexamined assumptions” (Leo 2005) that guided research in this area until recently.

Acknowledgements

The idea for this Special Issue was conceived at the conference “Risky profiles: societal dimensions of forensic uses of DNA analysis” which was organized by BP and TL and held at the Goethe University in Frankfurt on 2–3 July 2010. We gratefully acknowledge the support for the conference provided by the German Academic Exchange Service and the Association of Friends and Supporters (Vereinigung von Freunden und Förderern) of the Goethe University Frankfurt. We would also like to express our appreciation to Clancy Pegg at the Editorial Office of New Genetics and Society for her invaluable help and support during the entire process and Gerard Holden who copy-edited the text.