DNA Rules!
(Rules on DNA Evidence)

We have reservations about the recently released Supreme Court rules on DNA evidence. We even wonder why there wasn’t much criticism upon their release. Anyway, we hereby explain our unease.

Due Process, Probable Cause and Right to Privacy

Our main concern stems from the provision allowing the court, either on its own or on application of any person who has a legal interest in the matter in litigation, to order a DNA testing. Although the order issues after due hearing and notice to the parties upon a showing that:

(a)a biological sample exists that is relevant to the case;
(b)the biological sample:
(i)was not previously subjected to the type of DNA testing now requested; or
(ii)was previously subjected to DNA testing, but the results may require confirmation for good reasons;
(c)the DNA testing uses a scientifically valid technique;
(d)the DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and
(e)the existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing,

we would have preferred that the rules specifically require a showing of probable cause that a crime has been committed and of probable cause that the suspect committed it. These provisions may be innocuous in a paternity suit, but in convicting and subsequently imprisoning a person in a criminal case we feel there should be more safeguards on the rights of the accused.

The same provision allows DNA testing, “without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced.” Not only is probable cause absent here, but due process as well.

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