Lawyers are the gatekeepers
Lawyers are the gatekeepers, having some authority to keep bad or mis-leading evidence out of the courtroom.
However, it is not always easy to determine what is less reliable or mis-leading evidence as the reports in their tabulated format are limited in their nature.
Below are some of the key points to critically evaluate to forensic DNA evidence is presented in a robust and balanced manner in your case.
Testing of biological fluids
Forensic DNA reports are often very limited in disclosing what testing has been performed to evaluate the presence of biological fluids, especially if this testing haws been performed outside of the forensic biology/DNA laboratory.
However, the type of testing performing can be critically important as nearly all of the available tests for the presence of biological fluids have limitations and will react with substances other than the biological fluid. In some instances as sample may be described as a biological fluid and not testing has been conducted, a blood swab for example.
Key considerations in this area include:
- what was the type of testing performed?
- was this testing appropriate?
- what other substances react to the test used?
- can the biological fluid be attributed to a DNA profile – in the case of mixed DNA profiles, often it cannot
It is not possible to appropriately evaluate the biological evidence if the type of testing performed and the limitations to that testing are not disclosed to the court.
How was the sample collected?
This does not mean whether a swab, cutting or tapelift was collected. This relates to what happened in the examination process, especially if this examination was undertaken outside of the forensic biology/DNA laboratory.
Key considerations in this area include:
- were multiple exhibits opened and examined at the same time?
- were the items subject to fingerprint examination? Were they processed in the same superglue chamber as other evidence?
- did the examiner sample items in an appropriate order, for example, the examiner did not examine items from complainant before examining defendant’s clothing?
Only 6 cells are required to being to develop some identifiable information with current DNA testing methods. Therefore, evidence needs to be examined very carefully to minimise any contamination or transfer events.
Evidentiary value to the evidence
Forensic biology reports often present big persuasive numbers, which on the surface seem to present strong evidentiary value. However, when the evidence is critically evaluated, there is actually very little value.
Key considerations in this area include:
- the activities of the individuals involved. Are they in social or household contact?
- has previous sexual intercourse occurred?
- was the interpretation of the DNA profile robust and appropriate?
This include such scenarios as a trace DNA profile matching defendant was located on complainant’s underwear, however, it is agreed that the individuals have as social and some intimate contact.
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Jae Gerhard is a Forensic DNA Expert and the Principal Forensic Scientist at Independent Forensic Services, bringing over two decades of frontline experience in forensic biology. She has worked on some of Australia’s most complex and high‑profile cases with the Australian Federal Police and New South Wales Police, as well as international disaster victim identification operations in Bali and Thailand.
Specialising in DNA analysis, STRmix™, biological fluid examination, and bloodstain pattern interpretation, Jae now works independently with criminal defence teams to review and challenge forensic evidence. Her mission is simple: to ensure the science presented in court is accurate, balanced, and truly understood.