think of this!!!

99.9% of human DNA is the same in everyone Only 0.1% of our DNA is unique BUT each human cell contains 3 Billion DNA base pairs 0.1% of 3B translates to 3 million base pairs!

Repeat Sequence

A-T-G-C-T-A-G-C-G-C-G-C-G-T-A-C-T-A-G-C-C-AT-A-C-G-T-A-T-A-T-A-T-T-G-C-C-T-C-G-C-G-C-GC-G-C-A-G-A-T-G-C-T-A .

Pp vs. Teehankee (1995)

Murder While eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or the DNA test result.

Pe Lim vs. CA (1997)

Paternity and Filiation Rule 130 Sec. 39 Sec. 40

The issue of paternity still has to be resolved by such conventional evidence as the relevant DNA being a new incriminating verbal and science has not been written acts by the accorded official putative father recognition by the courts

Pp. vs. Tijing, et al (2001)

Paternity and Filiation

Eventually, as the appropriate case comes, Courts should not hesitate on the admissibility of DNA evidence. The courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress.

Pp. vs. Vallejo (2002)

Rape with homicide Discussed the PROBATIVE VALUE, NOT ADMISSIBILITY of DNA evidence. The purpose of DNA testing was to ascertain whether an association exist(ed) between the evidence sample and the reference sample.

Pp. vs. Janson (2003)

Rape Yes a complex offense had been perpetrated but who were the perpetrators How we wish we had DNA or other scientific evidence to still our doubts!

2004
Two other cases had a significant impact on jurisprudence on DNA testing

Pp. vs. Yatar

In re: The Writ of Habeas Corpus for Reynaldo de Villa

Pp. vs. Yatar (2004 citing Vallejo)

Rape with Homicide In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors:

 How the samples were collected and handled

The possibility of contamination

Qualification of the analyst

Whether the proper standards and procedure were followed in conducting the tests

Tecson vs. COMELEC, FPJ, et al. (2004)

Filiation/Citizenship In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to.

Agustin vs. CA (GR 162571, June 15, 2005)

Support Compulsory DNA is constitutional The right against self-incrimination is simply against the legal process of exacting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence

Chain of Evidence
"An overriding feature of any forensic examination is maintenance of continuous control over all specimens and information, so that one can testify with certainty as to their identity." - G. Wobeser 1996 Chain of Custody Log Dick Tracy acts

Protection of Evidence
Procedures for the handling and storage of evidence can help ensure that evidence is not tampered with: Identifying evidence as soon as it is taken into possession. Reference number Description and notations Sealing Keeping an inventory of the evidence in custody. Written records of the handling and movement Returning the evidence to their owners at the end of the process.

Using DNA Evidence:

PROVE GUILT

EXONERATE THE INNOCENT

A.M. No. 06-11-5-SC RULE ON DNA EVIDENCE

Republic of the Philippines SUPREME COURT Manila EN BANC RESOLUTION This Resolution shall take effect on October 15, 2007 following its publication in a newspaper of general circulation. October 2, 2007.

 SECTION 1. Scope. This Rule shall apply whenever DNA evidence, as defined in Section 3 hereof, is offered, used, or proposed to be offered or used as evidence in all criminal and civil actions as well as special proceedings. Sec. 2. Application of other Rules on Evidence. In all matters not specifically covered by this Rule, the Rules of Court and other pertinent provisions of law on evidence shall apply.

Sec. 3: Definition of terms

Biological sample - means any organic material originating from a persons body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva and other body fluids, tissues, hairs and bones; DNA - means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individuals DNA is unique for the individual, except identical twins; DNA evidence - constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples;

 DNA profile - genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person; DNA testing - means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (kinship analysis); and

 Probability of Parentage - means the numerical estimate for the likelihood of parentage of a putative parent compared with the probability of a random match of two unrelated individuals in a given population.

 Sec. 4. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: A biological sample exists that is relevant to the case; 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;

The DNA testing uses a scientifically valid technique; The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of integrity of the DNA testing. This Rule shall not preclude a 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.

Sec. 5: DNA Testing Order

Order, where appropriate, that biological samples be taken from any person or crime scene evidence; Impose reasonable conditions on DNA testing designed to protect the integrity of the biological sample, the testing process and the reliability of the test results, including the condition that the DNA test results shall be simultaneously disclosed to parties involved in the case; and If the biological sample taken is of such an amount that prevents the conduct of confirmatory testing by the other or the adverse party and where additional biological samples of the same kind can no longer be obtained, issue an order requiring all parties to the case or proceedings to witness the DNA testing to be conducted.

 An order granting the DNA testing shall be immediately executory and shall not be appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order. The grant of DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof.

 Sec. 6. Post-conviction DNA Testing. Post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment provided that a biological sample exists, such sample is relevant to the case, and the testing would probably result in the reversal or modification of the judgment of conviction.

Sec. 7. Assessment of probative value of DNA evidence The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples; The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and The reliability of the testing result, as hereinafter provided

Sec. 8. Reliability of DNA Testing Methodology

The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested; Peer review and publication of the principles or methods; The general acceptance by the relevant scientific community; Standards and controls to ensure the correctness of data generated; Appropriate reference population database; and The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of statistical calculations used in comparing DNA profiles.

 Sec. 9. of DNA Testing Results. In evaluating the results of DNA testing, the court shall consider the following: The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; The results of the DNA testing in the light of the totality of the other evidence presented in the case; and that DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence. If the value of the Probability of Paternity is 99.9% or higher there shall be a disputable presumption of paternity.

Sec. 10. Post-conviction DNA Testing Remedy if the Results Are Favorable to the Convict

The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin if the results of the postconviction DNA testing are favorable to the convict. In the case the court, after due hearing finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders.

Sec. 11. Confidentiality. DNA profiles and all results or other information obtained from DNA testing shall be confidential. Except upon order of the court, a DNA profile and all results or other information obtained from DNA testing shall only be released to any of the following, under such terms and conditions as may be set forth by the court: Person from whom the sample was taken; Lawyers of private complainants in a criminal action; Duly authorized law enforcement agencies; and Other persons as determined by the court.

 Whoever discloses, utilizes or publishes in any form any information concerning a DNA profile without the proper court order shall be liable for indirect contempt of the court wherein such DNA evidence was offered, presented or sought to be offered and presented. Where the person from whom the biological sample was taken files a written verified request to the court that allowed the DNA testing for the disclosure of the DNA profile of the person and all results or other information obtained from the DNA testing, the same may be disclosed to the persons named in the written verified request.

Sec. 12. Preservation of DNA Evidence. The trial court shall preserve the DNA evidence in its totality, including all biological samples, DNA profiles and results or other genetic information obtained from DNA testing. For this purpose, the court may order the appropriate government agency to preserve the DNA evidence as follows: In criminal cases: for not less than the period of time that any person is under trial for an offense; or in case the accused is serving sentence, until such time as the accused has served his sentence; In all other cases, until such time as the decision in the case where the DNA evidence was introduced has become final and executory.

 The court may allow the physical destruction of a biological sample before the expiration of the periods set forth above, provided that: A court order to that effect has been secured; or The person from whom the DNA sample was obtained has consented in writing to the disposal of the DNA evidence.

 Sec. 13. Applicability to Pending Cases. Except as provided in Section 6 and 10 hereof, this Rule shall apply to cases pending at the time of its effectivity. Sec. 14. Effectivity. This Rule shall take effect on October 15, 2007, following publication in a newspaper of general circulation.

Pp. vs. Pascual (Jan. 2009)

Rape with Homicide DNA testing was inconclusive as the specimen submitted i.e. vaginal smear and dirty white panty, had already undergone serological analysis Issues: Was the circumstantial evidence presented against the accused sufficient for conviction? Does the result of the DNA examination entitle the accused to an acquittal?

Pp. vs. UMANITO (April 2009)

Court resolved for the very first time, to apply the then recently promulgated New Rules on DNA Evidence (DNA Rules) in a case pending before the RTC where the case was remanded for reception of DNA evidence in accordance with the terms of said resolution, and in light of the fact that the impending exercise would be the first application of the procedure, directed the Deputy Court Administrator to:
Monitor the manner in which the court a quo carries our the DNA Rules; and Assess and submit periodic reports on the implementation of the DNA Rules

Foreign friendly persuasions:

Frye vs. U.S.
Daubert vs. Merrell Dow Pharmaceuticals Kumho Tires Co. vs. Carmichael

State vs. Schwartz

 Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in the twilight zone, the evidential force of the principle must be recognized and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained GENERAL ACCEPTANCE in the particular field in which it belongs.

ISSUES:

Expertise of the Witness

Admissibility of Evidence

Jurisprudential back-up

Constitutional

Expertise of the Witness: Experience Degree of Education Special knowledge Skill Training Expertise is not a

crown that you carry over your head!

On the credibility of the DNA witness:

Pp. vs. Yatar
Absent any showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect the result of the case, the trial judges assessment of credibility deserves the appellate courts highest respect. Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their testimonies are entitled to full faith and credit.

Experts concerns:
RELIABILITY OF THE METHOD

QUALIFICATION OF THE WITNESS TO RENDER AN EXPERT OPINION

SCIENTIFIC PROTOCOL WAS OBSERVED IN THIS PARTICULAR PROCEDURE

Grounds affecting weight of DNA Evidence:

Evidence is not counted. They are WEIGHED!

Inherent errors Testing errors Laboratory procedure errors Interpretive error

Weight of DNA evidence

In the absence of legislation as to the admissibility of DNA evidence, the courts may still take judicial notice of such since it is capable of unquestionable demonstration by an expert witness.

 The weight of the prosecutions evidence must be appreciated in light of the well-settled rule which provides that an accused can be convicted even if no eyewitness is available, as long as sufficient circumstantial evidence is presented by the prosecution to prove beyond doubt that the accused committed the crime.

On admissibility of DNA as evidence

The significance of DNA in aid of the Philippine Courts comes from the responsibility of the courts to provide the search for truth and if that process can be aided by forensic science that yields reliable results, the interests of the justice system and society are served.

 If paraffin tests, vaginal smears, fingerprints, blood typing and expert opinions can hold water in court, then why not DNA?

 Under Rule 128 of the Rules of Court, for evidence to be admissible, it only has to be RELEVANT. Evidence, to be relevant, need not conclusively prove the ultimate fact in issue, but only have any tendency to make the evidence of any fact that is of consequence to the determination of the point in issue, more probable or less probable than it would be without the evidence.

 DNA evidence would be invaluable as CORROBORATIVE EVIDENCE even without statistical backup if the accused has been identified by other proof (FRYE Test). Under our Rules, even COLLATERAL MATTERS are allowed when they tend in any reasonable degree to establish the probability or improbability of the fact in issue.

attacking the admissibility of DNA THREE-PRONG APPROACH Pp. vs. Kelly That the method is reliable and has gained acceptance in the scientific community The technique followed an established procedure and is capable of being repeated

The witness is qualified to render an expert opinion

CONSTITUTIONAL ISSUES
Privilege against self-incrimination Right against unlawful searches and seizures Right to Privacy

Due Process concerns

Art. III, Sec. 17:

No person shall be compelled to be a witness against himself

The privilege merely prohibits the use of physical or moral compulsion to extort communication from the defendant Refers only to evidence which is communicative in nature

Herrera vs. Alba (2005)

Obtaining DNA samples from an accused or a respondent, contrary to the belief of the respondent, will not violate the right against self-incrimination. The privilege applies only to evidence that is communicative in essence taken under duress. The right is just a prohibition on the use of physical or moral compulsion to extort communication from a defendant, not an exclusion of evidence from the body when it may be material.

some minor concerns:

compelling DNA samples

taking DNA is an unusual and cruel punishment

Art III, Sec. 2: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures . The ultimate value underpinning the rights The governments interest of the accused is not in crime investigation will really the discovery of always be held to truth, but the outweigh the privacy upholding of human rights of an individual dignity, regardless of the guilt of the suspect.

Due Process concerns:

PRESUMPTION OF RIGHT OF THE INNOCENCE ACCUSED TO PREPARE FOR TRIAL (Presumption of Guilt) Independent expert review Discovery Rules RIGHT TO EXAMINE EVIDENCE Rebuttal Expert

 The presumption of innocence protects individuals from having to prove their innocence

Some desirable points:

The accused must also be accorded the logistics to hire his own DNA experts.

Our Courts should allow DNA profiles in one case to be utilized for other unsolved cases particularly when a serial pattern is suspected.

 A DNA Database Post-conviction monitoring

Criminal procedures suggesting that DNA evidence is to be considered in a balance with other forms of evidence and is not to be considered essential or CONCLUSIVE entirely on its own.

MEMORANDUM ORDER No. 34 (3-19-01)

Subject: REQUISITES NEEDED IN DNA ANALYSIS ON CRIMINAL CASES UNDER INVESTIGATION

ACCEPTS: Paternity related to rape Sexual Assault Homicide Murder Mass Disaster Others, especially Heinous crimes

NOT ACCEPTING: Paternity cases related to support and recognition

SELECTIVE CASE ACCEPTANCE POLICY

For NBI Cases

To aid in the investigation of all cases

 NON-NBI cases

Limited to Sexual Assault and Serious Aggravated Assault cases in which a suspect has been identified and requires known reference samples from VICTIM and SUSPECT

Must conform with the guidelines for Collecting and Submitting DNA Evidence

Where to find:

NBI
UPNSRI ST. LUKES MEDICAL CENTER NATIONAL KIDNEY INST. PNP CRIME LAB

our fears:
Not affording our clients their constitutional rights Losing cases due to the overwhelming weight of DNA Procedural revisions in terms of DNA related cases Faster pace of docket decongestion???