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In legal terms, the emerging of new technical possibilities and their practical use create conflicting and parallel regimes. On one hand, “DNA Photofits” do not correspond to the legal frameworks devised in the 1990s. It does not provide identification, per se, but is rather an “assistance to the investigation,” as it uses coding DNA. One another hand, as science evolves, the law is falling out of step with the technical and scientific reality. New knowledge shows that some of the markers used by the FNAEG may in fact allow further information to be obtained about people regarding their predisposition to certain diseases, their genetic pathologies, and their “ethnic origin” (by continent or sub-continent).{{efn|For example, according to a study by the Telethon Institute of Genetics and Medicine, D2S1388, one of the markers used by the FNAEG, plays a determining role in the transmission of pseudohyperkalaemia, a rare genetic disease.<ref name="CarellaASecond04">{{cite journal |title=A second locus mapping to 2q35-36 for familial pseudohyperkalaemia |journal=European Journal of Human Genetics |author=Carella, M.; d'Adamo, A.P.; Grootenboer-Mignot, S. et al. |volume=12 |issue=12 |pages=1073–6 |year=2004 |doi=10.1038/sj.ejhg.5201280}}</ref> In 2011, a publication by Chinese researchers highlighted the association between marker D21S11-28.2 and coronary heart disease.<ref name="HuiNovel11">{{cite journal |title=Novel association analysis between 9 short tandem repeat loci polymorphisms and coronary heart disease based on a cross-validation design |journal=Atherosclerosis |author=Hui, L.; Jing, Y.; Rui, M.; Weijian, Y. |volume=218 |issue=1 |pages=151–5 |year=2011 |doi=10.1016/j.atherosclerosis.2011.05.024 |pmid=21703622}}</ref> A team of Portuguese researchers<ref name="PereiraPop11">{{cite journal |title=PopAffiliator: online calculator for individual affiliation to a major population group based on 17 autosomal short tandem repeat genotype profile |journal=International Journal of Legal Medicine |author=Pereira, L.; Alshamali, F.; Andreassen, R. et al. |volume=125 |issue=5 |pages=629–36 |year=2011 |doi=10.1007/s00414-010-0472-2 |pmid=20552217}}</ref> has developed an online calculator capable of correlating certain markers used in the FNAEG's DNA samples with individual affiliation to population groups (Sub-Saharan Africa, Eurasia, East Asia, North Africa, Near East, North America, South America, and Central America).}} Moreover, whereas at the FNAEG's inception it was considered unacceptable for the police to use medical information, certain professionals in police or justice now recognize that this information (whether genetic or not) can be useful in investigations (providing information about wanted persons' need for medication or healthcare, or about their physical appearance, etc.). Although there are no changes in the legal framework on this matter, the idea is spreading and the red line is, to some extend, and for some of the professionals, fading.
In legal terms, the emerging of new technical possibilities and their practical use create conflicting and parallel regimes. On one hand, “DNA Photofits” do not correspond to the legal frameworks devised in the 1990s. It does not provide identification, per se, but is rather an “assistance to the investigation,” as it uses coding DNA. One another hand, as science evolves, the law is falling out of step with the technical and scientific reality. New knowledge shows that some of the markers used by the FNAEG may in fact allow further information to be obtained about people regarding their predisposition to certain diseases, their genetic pathologies, and their “ethnic origin” (by continent or sub-continent).{{efn|For example, according to a study by the Telethon Institute of Genetics and Medicine, D2S1388, one of the markers used by the FNAEG, plays a determining role in the transmission of pseudohyperkalaemia, a rare genetic disease.<ref name="CarellaASecond04">{{cite journal |title=A second locus mapping to 2q35-36 for familial pseudohyperkalaemia |journal=European Journal of Human Genetics |author=Carella, M.; d'Adamo, A.P.; Grootenboer-Mignot, S. et al. |volume=12 |issue=12 |pages=1073–6 |year=2004 |doi=10.1038/sj.ejhg.5201280}}</ref> In 2011, a publication by Chinese researchers highlighted the association between marker D21S11-28.2 and coronary heart disease.<ref name="HuiNovel11">{{cite journal |title=Novel association analysis between 9 short tandem repeat loci polymorphisms and coronary heart disease based on a cross-validation design |journal=Atherosclerosis |author=Hui, L.; Jing, Y.; Rui, M.; Weijian, Y. |volume=218 |issue=1 |pages=151–5 |year=2011 |doi=10.1016/j.atherosclerosis.2011.05.024 |pmid=21703622}}</ref> A team of Portuguese researchers<ref name="PereiraPop11">{{cite journal |title=PopAffiliator: online calculator for individual affiliation to a major population group based on 17 autosomal short tandem repeat genotype profile |journal=International Journal of Legal Medicine |author=Pereira, L.; Alshamali, F.; Andreassen, R. et al. |volume=125 |issue=5 |pages=629–36 |year=2011 |doi=10.1007/s00414-010-0472-2 |pmid=20552217}}</ref> has developed an online calculator capable of correlating certain markers used in the FNAEG's DNA samples with individual affiliation to population groups (Sub-Saharan Africa, Eurasia, East Asia, North Africa, Near East, North America, South America, and Central America).}} Moreover, whereas at the FNAEG's inception it was considered unacceptable for the police to use medical information, certain professionals in police or justice now recognize that this information (whether genetic or not) can be useful in investigations (providing information about wanted persons' need for medication or healthcare, or about their physical appearance, etc.). Although there are no changes in the legal framework on this matter, the idea is spreading and the red line is, to some extend, and for some of the professionals, fading.


It is thus obvious that police uses of DNA data providing information about individuals' characteristics raise novel politic-ethical issues.<ref name="M'charekSilent08">{{cite journal |title=Silent witness, articulate collective: DNA evidence and the inference of visible traits |journal=Bioethics |author=M'charek, A. |volume=22 |issue=9 |pages=519-28 |year=2008 |doi=10.1111/j.1467-8519.2008.00699.x |pmid=18959734}}</ref><ref name="MacLeanForensic14">{{cite journal |title=Forensic DNA phenotyping in criminal investigations and criminal courts: Assessing and mitigating the dilemmas inherent in the science |journal=Recent Advances in DNA and Gene Sequences |author=MacLean, C.E.; Lamparello, A. |volume=8 |issue=2 |pages=104-12 |year=2014 |pmid=25687339}}</ref> In particular, it brings into play the issue of what constitutes private data<ref name="ToomApproaching16">{{cite journal |title=Approaching ethical, legal and social issues of emerging forensic DNA phenotyping (FDP) technologies comprehensively: Reply to 'Forensic DNA phenotyping: Predicting human appearance from crime scene material for investigative purposes' by Manfred Kayser |journal=Forensic Science International Genetics |author=Toom, V.; Wienroth, M.; M'charek, A. et al. |volume=22 |pages=e1–e4 |year=2016 |doi=10.1016/j.fsigen.2016.01.010 |pmid=26832996}}</ref>—for certain geneticists, where “DNA Photofits” are concerned, externally visible characteristics do not fall into this category because they are visible.<ref name="KayserForensic15" /> Generally, as stated by some professionals during interviews, the question is “to know until where to go. And where to stop.“ Regarding the FNAEG and French law, in a case heard in June 2017, the European Court of Human Rights (ECHR) ruled that “interference with the applicant's right to respect for his private life had been disproportionate.”{{Efn|Case of Aycaguer V. France, 22 June 2017, 8806/12, ECHR, Court (Fifth Section)}} The ECHR judgment ruled against France and underscored that French law regarding DNA date storage should be differentiated “according to the nature and seriousness of the offence committed.”{{Efn|See legal summary, available here: http://hudoc.echr.coe.int/eng?i=002-11703}}
It is thus obvious that police uses of DNA data providing information about individuals' characteristics raise novel politic-ethical issues.<ref name="M'charekSilent08">{{cite journal |title=Silent witness, articulate collective: DNA evidence and the inference of visible traits |journal=Bioethics |author=M'charek, A. |volume=22 |issue=9 |pages=519-28 |year=2008 |doi=10.1111/j.1467-8519.2008.00699.x |pmid=18959734}}</ref><ref name="MacLeanForensic14">{{cite journal |title=Forensic DNA phenotyping in criminal investigations and criminal courts: Assessing and mitigating the dilemmas inherent in the science |journal=Recent Advances in DNA and Gene Sequences |author=MacLean, C.E.; Lamparello, A. |volume=8 |issue=2 |pages=104-12 |year=2014 |pmid=25687339}}</ref> In particular, it brings into play the issue of what constitutes private data<ref name="ToomApproaching16">{{cite journal |title=Approaching ethical, legal and social issues of emerging forensic DNA phenotyping (FDP) technologies comprehensively: Reply to 'Forensic DNA phenotyping: Predicting human appearance from crime scene material for investigative purposes' by Manfred Kayser |journal=Forensic Science International Genetics |author=Toom, V.; Wienroth, M.; M'charek, A. et al. |volume=22 |pages=e1–e4 |year=2016 |doi=10.1016/j.fsigen.2016.01.010 |pmid=26832996}}</ref>—for certain geneticists, where “DNA Photofits” are concerned, externally visible characteristics do not fall into this category because they are visible.<ref name="KayserForensic15" /> Generally, as stated by some professionals during interviews, the question is “to know until where to go. And where to stop.“ Regarding the FNAEG and French law, in a case heard in June 2017, the European Court of Human Rights (ECHR) ruled that “interference with the applicant's right to respect for his private life had been disproportionate.”{{efn|Case of Aycaguer V. France, 22 June 2017, 8806/12, ECHR, Court (Fifth Section)}} The ECHR judgment ruled against France and underscored that French law regarding DNA date storage should be differentiated “according to the nature and seriousness of the offence committed."{{efn|See legal summary, available at [https://goo.gl/FcyuUM https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-11703%22]} }}


==Footnotes==
==Footnotes==

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Full article title How could the ethical management of health data in the medical field inform police use of DNA?
Journal Frontiers in Public Health
Author(s) Krikorian, Gaelle; Vailly, Joëlle
Author affiliation(s) Institut de recherche interdisciplinaire sur les enjeux sociaux (IRIS)
Primary contact Email: gaelle.krikorian@gmail.com
Editors Lefèvre, Thomas
Year published 2018
Volume and issue 6
Page(s) 154
DOI 10.3389/fpubh.2018.00154
ISSN 2296-2565
Distribution license Creative Commons Attribution 4.0 International
Website https://www.frontiersin.org/articles/10.3389/fpubh.2018.00154/full
Download https://www.frontiersin.org/articles/10.3389/fpubh.2018.00154/pdf (PDF)
This article should not be considered complete until this message box has been removed. This is a work in progress.

Introduction

Various events paved the way for the production of ethical norms regulating biomedical practices, from the Nuremberg Code (1947)—produced by the international trial of Nazi regime leaders and collaborators—and the Declaration of Helsinki by the World Medical Association (1964) to the invention of the term “bioethics” by American biologist Van Rensselaer Potter.[1] The ethics of biomedicine has given rise to various controversies—particularly in the fields of newborn screening[2], prenatal screening[3], and cloning[4]—resulting in the institutionalization of ethical questions in the biomedical world of genetics. In 1994, France passed legislation (commonly known as the “bioethics laws”) to regulate medical practices in genetics. The medical community has also organized itself in order to manage ethical issues relating to its decisions, with a view to handling “practices with many strong uncertainties” and enabling clinical judgments and decisions to be made not by individual practitioners but rather by multidisciplinary groups drawing on different modes of judgment and forms of expertise.[5] Thus, the biomedical approach to genetics has been characterized by various debates and the existence of public controversies.

In the judicial sphere, the situation is very different. Since the end of the 1990s, developments in biomedical research have led to genetic data being used in police work and legal proceedings. Today, forensic science is omnipresent in investigations, not just in complex criminal cases but also routinely in cases of “minor” or “mass” delinquency. Genetics, which certainly receives the most media coverage among the techniques involved[6], has taken on considerable importance.[7] However, although very similar techniques are used in biomedicine and police work (DNA amplification, sequencing, etc.), the forms of collective management surrounding them are very different, as well as the ethico-legal frameworks and their evolution, as this text will demonstrate.

Keywords: DNA, police, ethics, genetic technologies, criminal investigations

Nature of the information and genetic data produced in the police sphere

In police work in France, data produced by DNA are currently compiled and used in two different ways: first, to create files on individuals in the FNAEG or Fichier national automatisé des empreintes génétiques (national automated DNA database) and, second, in order to obtain information about perpetrators of crimes (their appearance, their origin, their kinship links to other individuals).

Police use of DNA has been allowed in France since the 1998 law providing for the creation of the FNAEG. A DNA profile corresponds to a “specific individual alphanumeric combination”[8] that is the numerical encoding of analysis of DNA segments. This profile is the result of analysis of DNA fragments using genetic markers. This analysis can be carried out on a minute amount of genetic material (saliva, blood, sperm, hair, contact, etc.). It identifies the presence of sequences specific to an individual that differentiate them from any other person (with the exception of an identical twin) but that are not supposed to provide any phenotypical information (about appearance, geographical origin, or diseases).[a] Such profiles therefore make individuals “identifiable in their uniqueness.”[9] During investigations, DNA is collected from suspects or unidentified stains left on crime scenes or people and the results of this analysis are entered into the database. Identification through the FNAEG was originally restricted to a limited number of crimes—those of a sexual nature, as part of the law relating to the prevention and punishment of sexual crimes and the protection of minors. This remit has progressively been extended to include the vast majority of crimes and offences[b], leading to the routine use of DNA in investigations.[c] As a result of this evolution, there has been a substantial increase in the number of persons with files in the FNAEG, more than three million as of late 2015.[d]

New techniques have also emerged in recent years. It is now possible to obtain indications about an individual's physical appearance based on a sample of his/her DNA[10][11]: the analyses in question provide statistical information on eye, hair, and skin color, etc. These techniques are more exploratory and aim not to match DNA with an identity by comparison but to determine the characteristics of the perpetrator of a crime. These data result from analysis of several dozen DNA markers that, unlike the FNAEG's data, are selected deliberately so that they can provide information about a person's physical appearance. They are therefore aimed at “generating a suspect”[12] but because the information about this person's features are incomplete (e.g., a person with blue eyes, fair skin, light brown hair, and of European “bio-geographical” ancestry), they define “target populations of interest” to guide police investigations.[13] Several private and public laboratories in France now produce what professionals often refer to as “DNA photofits”; it is estimated that several dozen such analyses have been carried out since 2014 as part of investigations.

How is this framed legally, politically, and ethically?

The legal framework surrounding how the police and justice system use DNA analysis was devised to follow the creation of the FNAEG. For this reason, and in order to defuse fears and criticisms, the law only allows analyses using “non-coding” DNA so as to meet the initial objective of allowing identification without providing information about individuals. French law only provides the police DNA for identification purposes “within the framework of investigative measures or the preparation of a case during a judicial proceeding,”[e] in cases of missing persons[f], or, more recently, in the context of familial searches to allow “searches for persons directly related to [an] unknown person” who has left a stain at a crime scene (i.e., without determining phenotype).[g]

Concerning the so-called “DNA Photofit” technique, in June 2014, France's highest court, the Court of Cassation, ruled admissible an expert report charged with providing “all useful elements relating to the suspect's visible morphological characteristics” based on stains collected after a rape in an investigation into a series of sexual assaults in Lyon between October 2012 and January 2014. The Court of Cassation's authorization of this practice in DNA analysis was the first in France. For judges and prosecutors, there is now set a legal precedent allowing them to authorize “DNA Photofits” when they consider this could help an investigation.

In legal terms, the emerging of new technical possibilities and their practical use create conflicting and parallel regimes. On one hand, “DNA Photofits” do not correspond to the legal frameworks devised in the 1990s. It does not provide identification, per se, but is rather an “assistance to the investigation,” as it uses coding DNA. One another hand, as science evolves, the law is falling out of step with the technical and scientific reality. New knowledge shows that some of the markers used by the FNAEG may in fact allow further information to be obtained about people regarding their predisposition to certain diseases, their genetic pathologies, and their “ethnic origin” (by continent or sub-continent).[h] Moreover, whereas at the FNAEG's inception it was considered unacceptable for the police to use medical information, certain professionals in police or justice now recognize that this information (whether genetic or not) can be useful in investigations (providing information about wanted persons' need for medication or healthcare, or about their physical appearance, etc.). Although there are no changes in the legal framework on this matter, the idea is spreading and the red line is, to some extend, and for some of the professionals, fading.

It is thus obvious that police uses of DNA data providing information about individuals' characteristics raise novel politic-ethical issues.[17][18] In particular, it brings into play the issue of what constitutes private data[19]—for certain geneticists, where “DNA Photofits” are concerned, externally visible characteristics do not fall into this category because they are visible.[11] Generally, as stated by some professionals during interviews, the question is “to know until where to go. And where to stop.“ Regarding the FNAEG and French law, in a case heard in June 2017, the European Court of Human Rights (ECHR) ruled that “interference with the applicant's right to respect for his private life had been disproportionate.”[i] The ECHR judgment ruled against France and underscored that French law regarding DNA date storage should be differentiated “according to the nature and seriousness of the offence committed."[j]

Footnotes

  1. ↑ The Order of 10 August 2015 increased the number of markers analyzed to 21; policemen and analysis laboratories had three years to comply with this new requirement.
  2. ↑ Act n°98-468 of 17 June 1998 relative to the punishment of sexual crimes and the protection of minors introduced article 706-54 into the Code of Criminal Procedure making provision for the creation of an automated national database to centralize the DNA profiles of persons convicted of offences of a sexual nature. The remit of the database was then extended on several occasions. In 2001, it included serious crimes against persons. In 2003, the law on internal security extended it to persons convicted of or implicated in crimes and offences against persons or property.
  3. ↑ Collecting DNA samples in investigations is now the rule. An ad hoc body of staff has been trained over the past 15 years that almost systematically processes crime scenes.
  4. ↑ This figure was provided to the French Parliament by the Ministry of the Interior following a question by parliamentarian Sergio Coronado (member of the “Ecologist” parliamentary group) (http://questions.assemblee-nationale.fr/q14/14-79728QE.htm).
  5. ↑ Art. 16.11 of the Civil Code
  6. ↑ Art. 26, Domestic Security Guidance and Planning Act n° 95-73 of 21 January 1995
  7. ↑ This possibility was written into law in 2016 in article 796-56-1-1 of Act n° 2016-731 of 3 June 2016 strengthening provisions for the fight against organized crime, terrorism, and their financing, and improving the efficiency and guarantees of the criminal procedure.
  8. ↑ For example, according to a study by the Telethon Institute of Genetics and Medicine, D2S1388, one of the markers used by the FNAEG, plays a determining role in the transmission of pseudohyperkalaemia, a rare genetic disease.[14] In 2011, a publication by Chinese researchers highlighted the association between marker D21S11-28.2 and coronary heart disease.[15] A team of Portuguese researchers[16] has developed an online calculator capable of correlating certain markers used in the FNAEG's DNA samples with individual affiliation to population groups (Sub-Saharan Africa, Eurasia, East Asia, North Africa, Near East, North America, South America, and Central America).
  9. ↑ Case of Aycaguer V. France, 22 June 2017, 8806/12, ECHR, Court (Fifth Section)
  10. ↑ See legal summary, available at https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-11703%22}

References

  1. ↑ Potter, V.R. (1970). "Bioethics, the science of survival". Perspectives in Biology and Medicine 14 (1): 127–53. doi:10.1353/pbm.1970.0015. 
  2. ↑ Vailly, J. (2013). The Birth of a Genetics Policy: Social Issues of Newborn Screening. Routledge. pp. 240. ISBN 9781472422729. 
  3. ↑ Isambert, F.A. (1980). "Éthique et génétique: De l'utopie eugénique au contrôle des malformations congénitales". Revue française de sociologie 21 (3): 331–54. doi:10.2307/3320930. 
  4. ↑ Pulman, B. (2005). "Les enjeux du clonage". Revue française de sociologie 46 (3): 413–42. doi:10.3917/rfs.463.0413. 
  5. ↑ Bourret, P.; Rabeharisoa, V. (2008). "Décision et jugement médicaux en situation de forte incertitude : l’exemple de deux pratiques cliniques à l’épreuve de la génétique". Sciences sociales et santé 26 (1): 128. doi:10.3917/sss.261.0033. 
  6. ↑ Brewer, P.R.; Ley, B.L. (2009). "Media Use and Public Perceptions of DNA Evidence". Science Communication 32 (1): 93–117. doi:10.1177/1075547009340343. 
  7. ↑ Williams, R.; Johnson, P. (2008). Genetic Policing: The Uses of DNA in Police Investigations. Willan. pp. 208. ISBN 9781843922049. 
  8. ↑ Cabal, C.; Le Déaut, J.-Y.; Revol, H. (2001). Rapport sur la valeur scientifique de l'utilisation des empreintes génétiques dans le domaine judiciaire. Assemblée nationale. ISBN 2111150177. 
  9. ↑ Bonniol, J.-L.; Darlu, P. (2014). "L’ADN au service d’une nouvelle quête des ancêtres?". Civilisations 63: 201–19. doi:10.4000/civilisations.3747. 
  10. ↑ Kayser, M.; de Knijff, P. (2011). "Improving human forensics through advances in genetics, genomics and molecular biology". Nature Reviews Genetics 12 (3): 179–92. doi:10.1038/nrg2952. PMID 21331090. 
  11. ↑ 11.0 11.1 Kayser, M. (2015). "Forensic DNA Phenotyping: Predicting human appearance from crime scene material for investigative purposes". Forensic Science International Genetics 18: 33–48. doi:10.1016/j.fsigen.2015.02.003. PMID 25716572. 
  12. ↑ M'charek, A. (2013). "Beyond Fact or Fiction: On the Materiality of Race in Practice". Cultural Anthropology 28 (3): 420–42. doi:10.1111/cuan.12012. 
  13. ↑ Caliebe, A.; Krawczak, M.; Kayser, M. (2018). "Predictive values in Forensic DNA Phenotyping are not necessarily prevalence-dependent". FSI Genetics 33: e7–e8. doi:10.1016/j.fsigen.2017.11.006. 
  14. ↑ Carella, M.; d'Adamo, A.P.; Grootenboer-Mignot, S. et al. (2004). "A second locus mapping to 2q35-36 for familial pseudohyperkalaemia". European Journal of Human Genetics 12 (12): 1073–6. doi:10.1038/sj.ejhg.5201280. 
  15. ↑ Hui, L.; Jing, Y.; Rui, M.; Weijian, Y. (2011). "Novel association analysis between 9 short tandem repeat loci polymorphisms and coronary heart disease based on a cross-validation design". Atherosclerosis 218 (1): 151–5. doi:10.1016/j.atherosclerosis.2011.05.024. PMID 21703622. 
  16. ↑ Pereira, L.; Alshamali, F.; Andreassen, R. et al. (2011). "PopAffiliator: online calculator for individual affiliation to a major population group based on 17 autosomal short tandem repeat genotype profile". International Journal of Legal Medicine 125 (5): 629–36. doi:10.1007/s00414-010-0472-2. PMID 20552217. 
  17. ↑ M'charek, A. (2008). "Silent witness, articulate collective: DNA evidence and the inference of visible traits". Bioethics 22 (9): 519-28. doi:10.1111/j.1467-8519.2008.00699.x. PMID 18959734. 
  18. ↑ MacLean, C.E.; Lamparello, A. (2014). "Forensic DNA phenotyping in criminal investigations and criminal courts: Assessing and mitigating the dilemmas inherent in the science". Recent Advances in DNA and Gene Sequences 8 (2): 104-12. PMID 25687339. 
  19. ↑ Toom, V.; Wienroth, M.; M'charek, A. et al. (2016). "Approaching ethical, legal and social issues of emerging forensic DNA phenotyping (FDP) technologies comprehensively: Reply to 'Forensic DNA phenotyping: Predicting human appearance from crime scene material for investigative purposes' by Manfred Kayser". Forensic Science International Genetics 22: e1–e4. doi:10.1016/j.fsigen.2016.01.010. PMID 26832996. 

Notes

This presentation is faithful to the original, with only a few minor changes to presentation. In some cases important information was missing from the references, and that information was added. Footnotes were originally numbered but have been converted to lowercase alpha for this version.

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