Forensic DNA phenotyping - selected legal issues

The turn of the twenty-first century was characterised by a dynamic development of DNA analysis. The applications of the achievements in this field include the forensics. An identification of a potential perpetrator of a crime by comparing his/her genetic profile with DNA detected at a crime scene is one of the standards in this area. Such evidence is considered to be almost a hundred percent certain in a criminal trial. The development of DNA analysis in recent years has demonstrated that a biological trace recovered at a scene of a crime can be also used for determining certain features of an individual, including both physical and psychological ones. The Authors concentrate first of all on physical features as they are extensively explored by forensic DNA analysts and they do not evoke as acute controversies as identifying person’s character based on analysing DNA. By defining person’s appearance, biogeographic origin and age it is possible to generate an image of a potential perpetrator and start searching for a specific person. As a result, questions arise as to whether such phenotyping is acceptable under the law, in particular whether it can serve as a detection tool and, perhaps even more difficult one, whether the result may become evidence in a case and lead to proving guilt or innocence of a suspect. The article focuses on the regulations of the Police Act and tasks performed by the police as they can be the largest beneficiaries of the new method for identifying a suspect. However the question, whether and to what extent it can be used at further stages of the proceedings calls for a separate discussion. According to the Authors, the provisions of the Police Act do not adequately regulate the issue in question, which may result in violation of civil rights and in consequence, lead to breach of the procedural rights of the parties.