Under the guise of science
It was another day in court. A father was convicted of raping his teenage daughter on the most compelling of evidence – DNA. That was in 2005. Six years later on 28th January this year, without contest by the Crown, the Court of Appeal overturned the conviction.
The case, termed R v JE for legal confidentiality reasons, raises a number of significant and enduring problems in the use of DNA evidence. The evidence turned on the presence of minute quantities of genetic material detected on a pair of shorts worn by the complainant.
The prosecution expert had determined that a mixture of DNA had been found. The profiles were incomplete but one matched the complainant, the other, the defendant. And it was not just any DNA but derived from semen, although there were no sperm. For the Crown this evidence was the smoking gun: the mixture of respective fluids had drained through the complainant’s underwear onto the shorts – with the sperm being filtered out in the process.
There was one problem. The complainant had very little contact with the defendant on the night in question. Moreover her evidence at trial was unconvincing, monosyllabic and tantamount to a retraction. However the mundane realities of time and space paled before the dazzle of DNA. With defence counter-explanations duly brushed aside, the jury convicted.
But once a fresh expert was instructed the significance of the DNA evidence, and with it the mirage of cogency, evaporated into the ether.
The shorts, though nominally owned by the complainant’s brother, were habitually worn around the house by each member of the family without being washed. The ‘mixed’ profile was a conjecture: the DNA may have derived from one family member, or several, just through being worn. The stains identified as a ‘mixture’ containing ‘semen’ may have been cellular material and not semen at all.
As the family members were closely related, there were strands of DNA in common. With the incomplete profiles, the factoring in of father and daughter and factoring out of the son and mother, the evidence turned out to be an arbitrary and non-probative opinion.
The absence of sperm in the alleged mixture, notwithstanding the possibility of underwear as a filter, made it unlikely that the stains derived from the alleged offence. As the knickers were not found, the filtering was pure speculation. All in all, the expert concluded, the stains provided no support for
the prosecution case.
As JE’s solicitor Chris Saltrese commented the case demonstrates how ‘subjectivity, speculation and conjecture were presented under the guise of objective science’.
What was key in this case was context and interpretation. The police were looking for DNA support for the prosecution case. Scientific method ought to proceed on the basis of refutation – arriving at a conclusion based on excluding alternate possibilities.
While the code of investigation obliges the police to consider evidence pointing away from the suspect, this may be more honoured in the breach when it concerns a sexual allegation in a domestic context. Equally, forensic examiners may too readily accept the facts as presented by the police and, contrary to the dictates of scientific methodology, interpret the evidence accordingly.
Laboratory staff undertaking the testing may be unevenly trained and work to different standards. Sometimes there is even a fundamental confusion as to the provenance of genetic material and whether it is derived from semen. In JE terms such as ‘seepage’, ‘mixture’ and ‘semen’ infused with the magical component of DNA mesmerized the court and the jury into accepting the prosecution case.
There is a rising tide of disquiet about DNA evidence. While it can be a powerful tool in the investigation of crime – exonerating the innocent as much as fingering the guilty – its
evidential value is dependent on the interpretations of scientists. For it is the fallible human being, and not the evidence, that speaks.
Partial and mixed profiles, minute traces, uneven statistical and amplification methods intensify the risk of mistaken identity or interpretation, while judges may, as happened in this case, unwittingly retail a speculative description of the evidence to the jury.
The Inside Justice unit at Inside Time is currently setting up a trial to test subjective interpretation of DNA evidence. It follows research reports in New Scientist magazine last year questioning the reliability of DNA evidence in complex cases.
As with JE apparently convincing evidence may be nullified through proper scrutiny. The difficulty is ensuring that this takes place. While prosecution experts may be under pressure to come up with a result meeting police expectations, defence experts may follow suit unless legal representatives give full instruction.
Meanwhile, with the popular perception of DNA evidence still that of infallibility, there is real possibility that more innocent defendants have been, and are still being, railroaded into conviction under the guise of science.
Margaret Jervis is a legal researcher and consultant, Oliver Cyriax a retired solicitor and family law consultant and Chris Saltrese a criminal defence solicitor in Southport See www.chrissaltrese.co.uk.
– – http://www.jailnation.com/nj/Good science education is very important for our country\’s future, including our national security. If our enemies were the first ones to develop new weapons, and we couldn\’t defend them we\’d be in big trouble.
Dear renate
It\’s the average person in the street who sit on juries. Juries hate sex offenders. I\’m glad you agree juries, as the \’average person in the street\’ have more brain cells than me.
Steven Battram, perhaps you should listen to the experts more and stop believing that children cannot lie. Children do lie, sometimes to get their own way, or spitefully because they do not like a person, if it is a case of a step-parent they maybe want them out of their life, children can be very wicked in what they do without realising the consequences. Look no further than Thompson & Venables, then tell me I\’m wrong.
Renate knows what she is talking about, do not ever belittle her expert knowledge.
Moderator\’s Comment:
Remember that in cases of alleged \’historic abuse\’ the accusers are now fully adult and making accusations that may go back 20 or 30 years so the accusers are not children.
Steve said:
\”I\’m different to the majority of convicted criminals in that I don\’t just blindly, and out of some unwritten code, agree with someone who says he is innocent. I\’m the sort of person who you can\’t p*ss down my back and tell me it\’s raining\”.
Who was talking about convicted criminals who believe others are innocent? I am talking about the average person in the street who has more than half a brain cell.
Dear Renate
I\’m not for a moment suggesting there are not innocent people in prison. I\’ve been in prison when an innocent person wins his appeal. In historical sex offender cases there will always be two sides. You know whose side I\’m on. I happen to believe children when they say they\’ve been sexually abused, unless there is evidence to the contrary.
I\’m different to the majority of convicted criminals in that I don\’t just blindly, and out of some unwritten code, agree with someone who says he is innocent. I\’m the sort of person who you can\’t p*ss down my back and tell me it\’s raining.
Steve Battram said:
\”I take each case on an individual basis, each sex case is different.
Some need medical assistance, as they can\’t help themselves.
Others are predators and need deterring.
Others are opportunists, spot a drunk women etc.
I don\’t lump them altogether\”.
You forgot the last one Steve – that \”others are innocent and have been falsely accused\”.
– Hello Steve – again
Were you at the appeal? No. Did you hear the evidence? No?
I was. The appellant got justice that day. He was also told by the presiding judge that his ordeal was now over and that he was entitled to tell the world that he is innocent.
You seem to post up on this site regularly with absolutely no knowledge of the cases you comment on.
How on earth can you have an opinion when you are clearly biased and have absolutely no idea of any of the facts of the case?
steven
i will always respect your views however the one niggling thing in my mind is why on earth would a family share dirty clouthing to me thats unhygienic and would raise more questions than answers. definately over this point.
regarding the allegation im not questioning that what i do question is what happened to the panties and more importantly who caused them to disappear again a major question in my mind.
DNA in this case has effectively been blocked solely by the family use of clouthing worn after others.
the only thing which would have sealed the case is the one important thing missing traces of semen which could have been linked to the victim..
i will freely admit a very difficult one to approach even with an open mind.
bests regards
John
I think if you knew me and my opinions on sex offenders you would not accuse me of discriminating against sex offenders. I take each case on an individual basis, each sex case is different. Some need medical assistance, as they can\’t help themselves. Others are predators and need deterring. Others are opportunists, spot a drunk women etc. I don\’t lump them altogether.
Anyway, I just don\’t like the sound of this case. A daughter accusing the father of rape. All sharing unwashed underwear etc. Sounds suspicious to me. But I will believe a child over an adult every time, unless there is strong evidence to suggest otherwise.
I give it straight, I think you\’ve learnt that by now, you\’ve known me long enough!
first and foremost what a mind provoking article. DNA normally is the one crucial factor in placing a person in a given area at a given period.
i believe the daughter got a fair trial because if she did not then the defendant was set up to take the fall.
steven im fully aware of your total dislike of individuals who have been accused of a sexual offence.
however putting that aside look at the evidence as indicated wheres the semen residue there was none.
every male leaks afterwards and thats a fact of life but in this case none found.
every letter in this fine paper and the other prison newspaper i read with an open mind and from reading it assertain where the writer is coming from.
mind you family sharing unwashed clouthes is beyond me but i suppose it happens.
in this instance the police and cps solely relied on the dna results and evidence of the accuser. and has time progressed both the police and cps have been found wanting.
the dna has been successfully challenged and ruled out. now where i live thats seen as clearence so all that is left is the accuser v\’s the defendant and her evidence coupled with his defence.
only 2 people know the truth as to what happened and indeed if it had happened.
looking at this article i fully agree that the dna evidence was flawed
I don\’t like the sound of this case. I don\’t feel the daughter has got justice. We don\’t know how old the daughter was in this case. Maybe pressure was being applied for her not to give evidence. I feel the crown should have re-tried without the DNA evidence.
When a daughter makes a rape allegation against her father it needs to be taken seriously. I can only hope the father was innocent. But what if he wasn\’t, how will his daughter feel?