A Review of DNA Lab Requests from Municipal Departments and RCMP Detachments in the Lower Mainland of British Columbia (2006-2011)
6. Interview Results
As noted in the methodology section, investigators who worked with DNA submissions were interviewed to capture their views on the current DNA request for authorization process, the usefulness of DNA evidence to investigations, and the overall effectiveness of the NDDB . Most of the 15 investigators were working in a serious crime unit that investigated homicides, sexual assaults, serious assaults, and robbery cases. The participants had, on average, 11 years of service and had spent half of that service conducting investigations. Moreover, each investigator stated that they made, on average, five DNA lab requests per year.
While not the first priority of this study, the first issue discussed was the role that DNA plays in the charge approval process. Commonly, the investigators claimed that DNA was critical to the process in the majority of cases. However, the investigators also suggested that the value of the DNA evidence depended on whether there was other incriminating evidence, as it may be insufficient on its own. More specifically, it was mentioned that DNA evidence requires a context. For example, investigators spoke of cases where DNA was found on a crime scene sample and successfully matched the sample to a suspect, but it was necessary for the police to demonstrate that the DNA found was not the result of the suspect previously visiting the offence site.
In considering the usefulness of DNA evidence in an investigation, rather than its role in charge approval, most investigators commented that, although DNA evidence may not be critical in all cases, it was almost always useful in some way, especially in cases where there was little other evidence. Investigators also suggested that DNA evidence can be used to eliminate a suspect thus redirecting an investigation. In terms of the usefulness of DNA by the nature of the offence, all but two investigators indicated that sexual assault cases were the offence type where DNA evidence was most critical to laying a charge. This was followed by homicides and "stranger" offences.Footnote 19 Importantly, this was explained as a "placement" issue in that the suspect had no lawful reason to be in the location that the DNA evidence placed them in.
Overwhelmingly, investigators stated that it was rare for Crown Counsel to not approve a charge that was supported by DNA evidence. In those cases where charges were not approved with DNA evidence, the main explanations provided by the investigators were that DNA evidence only provides "one part of the puzzle," and that DNA evidence alone is insufficient, but requires a context to apply it to. Nonetheless, investigators felt that Crown Counsel were overwhelmingly receptive to DNA evidence. The general consensus among the investigators' comments was that Crown Counsel viewed DNA evidence as providing a measure of unbiased certainty in that it offered proof beyond a reasonable doubt without interference or human error. Still, it was clear that Crown Counsel were focused on the context of the DNA evidence, particularly concrete support for why the DNA evidence at a scene should be considered incriminating.
In terms of any improvements over the past few years with respect to the process and the time it takes for results, the responses varied; however, two main themes emerged. First, while investigators acknowledged that there have been significant improvements in the last two years, the current estimate of three to four months for lab results was considered by them to be too long. One of the reasons provided for why this amount of time was too long was related to pending court dates where results coming after a court date would not be helpful. While it appears that there is a process in place to deal with the time lag, some investigators suggested that a system should be in place to prioritize submissions. Interestingly, some of the recommendations were not exclusively to prioritize by the severity or seriousness of the offence, but by pending court dates.
In terms of improvements over the last five years, there appeared to be consensus that there was less DNA material required now to develop a profile than in the past, and that the physical sources of DNA had expanded. There was also the specific comment that there was now the ability to accept the Request for Forensic Lab Analysis form (C414) through email, and that the C414 fillable form has a dropdown list which provides specific options making it easier. The comment also suggested that the response to this was immediate. Another specific comment was that the change to allow a sheriff to take a sample from a convicted offender was a significant improvement and a better use of resources as a police officer was no longer required and the sheriff would be readily available at the court house.
In terms of recommendations for further improvements, many investigators again mentioned the amount of time it took to receive any kind of result from the lab as a result of lab process time, rather than any process or procedures external to the lab. Several investigators also commented that the discretion of the lab to dictate what could be submitted was too stringent. For example, investigators commented that they were limited to three pieces of evidence per submission. While they acknowledged that this was most likely an acceptable quality control issue, it did, at times, lead to frustration on the part of the investigator. In addition, investigators commented that they perceived a general lack of understanding or education on how the overall NDDB process worked. While the NDDB has a national training program administered almost every year in British Columbia, the majority of investigators recommended that more education regarding the entire process would be useful, and that this might serve to alleviate any misperceptions or misunderstandings held by police agencies. Finally, a few comments were made regarding the data stored in the NDDB indicating that the Data Bank was only as useful as the data stored within it. Here, it was believed that as more data is stored, the Data Bank will become a better asset to investigators. As such, the majority of investigators viewed the Data Bank as having great potential to assist investigations.
When asked what immediate changes they would make to the DNA forensic process, investigators most often mentioned prioritizing the work of the DNA lab by the severity of the offence. Additionally, it was mentioned that the discretion of what samples would qualify for processing should be shared between the investigators and those who have the current authority to authorize the submission, as this would increase the potential of retrieving useful DNA evidence for the investigation. It was also recommended that there should be an increase in the amount of resources that the lab receives, such as more technicians, funds, and the procurement of the most current technology available. Another theme mentioned was a disconnect between the investigators and the lab that could be remedied by increasing the understanding of the process the lab is required to follow and communicating with and educating investigators about that process. It was also recommended that all Criminal Code convictions should require a DNA sample to be provided as this would not only assist in the investigation of cases, but would increase the rate at which the DNA Data Bank was populated, thus increasing the Data Bank's usefulness. In sum, from the investigator's perspective, the main issues were a reduction in the amount of time it took for them to receive results, an increase in DNA lab resources, and greater education about the entire DNA collection and analysis process.
To confirm and clarify some of the issues that surfaced during the interviews, several questions were asked of the forensic lab with respect to turn-around time, prioritizing, and specific sample submissions. From the perspective of the forensic lab, cases were assigned a turnaround of 40 days for the average case, and the clock started when the lab received all of the authorized exhibits. The lab also confirmed that there was no real formal prioritizing policy in place, although informally, a case priority could be negotiated based on the specifics of the case.Footnote 20 With respect to the issue of sample submission and acceptance, the lab confirmed that there are parameters for the number of actual submissions made; however, what receives authorization depends on the forensic significance of the evidence and whether there is other evidence that has already been obtained. In essence, the acceptance or authorization of a submission is considered in context with the other components of the case. Importantly, there is no "listing" of specific sample types that would automatically be rejected for processing. In effect, there was general agreement between what the investigators were reporting and the information obtained from the forensic lab.
In comparison with the national distribution of cases that the NDDB assisted with, according to the National DNA Data Bank of Canada's Annual Report 2009 – 2010, the resulting distribution of specific offence types in our review were fairly similar, given that the predominant offence type for both was Break and Enter. However, considering the national distribution of offence types that the NDDB deals with in any given year, ideally, there would have been at least twice the number of cases included in our sample of specific types of offences, such as homicide. Regardless of the small sample for some specific offences, our analyses indicated that the usefulness of DNA evidence in an investigation should not be underestimated. The assistance of the NDDB and DNA evidence in general is a valuable investigative asset. Investigators commented that DNA evidence was greatly useful to an investigation in some form. However, it was commonly noted that DNA evidence also requires context. In effect, in many cases, DNA only provides one piece of the puzzle, and it is up to the investigator to explain or prove why the particular DNA evidence found at the crime scene should be considered incriminating.
In terms of its prosecutorial usefulness, of the 155 files in this sample in which information was present about the outcome of the court process, 84% resulted in an offender being found guilty, pleading guilty, or pleading guilty to a lesser or included offence. Moreover, in just over 50% of files, a report to Crown Counsel was submitted. The most common reasons for not submitting a report to Crown Counsel were that the investigation and DNA analysis resulted in an inability to identify a suspect or there simply was not enough evidence to proceed. However, in virtually all of the cases where a report to Crown Counsel was submitted, the charges were approved. In those very rare cases where charges were not approved, the main reasons were that too much time had passed since the commission of the offence or a determination was made that it was unlikely that prosecution would result in a conviction
The issue of time that the process takes for the lab to analyze and provide a result is one that is important to consider in the assessment of overall effectiveness of DNA evidence used in an investigation. While the empirical data suggested that it took between three to four months for a DNA result from the time a sample was sent to the lab, during the interviews, investigators felt that the average turn-around time was simply too long, and that it could be improved upon. The main reason provided for this opinion was that the length of time it took to receive a result, in the past, resulted in the prosecution not being permitted the use of the DNA evidence. The suggestion to alleviate this issue was to prioritize offences first, based on pending court dates, and perhaps based on the severity of the offence.
In fact, the results of this review indicated that, on average, it took the lab 107 days from the time they received a DNA sample to provide a result. This was about the length of time it took for a result of a convicted offender match to be completed (98 days), which was less time than it took for a DNA profile to be produced (110 days). Moreover, it took, on average, 111 days for the result of a convicted offender match to be provided to the investigator and 126 days for a DNA profile. Importantly, these results are inclusive of all years under review (2006 – 2011), and may not totally reflect the most current changes made to the process of analyzing DNA evidence.
Further, the only other issue that surfaced was that many of the investigators felt as though they did not fully understand the process of DNA analysis, and the over-all functioning of the NDDB . Given this, it was suggested that more education be provided, and that investigators be kept abreast of policy changes in the current process to alleviate this concern. Nonetheless, from the viewpoint of the investigators, the NDDB process is viewed as a highly valuable contribution. Further, our review of the data indicates that when DNA evidence is available for an investigation, it successfully provides an investigative direction and, in nearly all cases, provides a satisfactory outcome for the prosecution.
We would recommend that information regarding court outcomes as a result of DNA evidence be more thoroughly collected and stored. For example, in this sample of files, less than one-fifth of files had any court outcome information available for review. While information was available in most cases pertaining to offence specifics and the subsequent results of the DNA analysis, it would be beneficial for any future review to have available files that were more comprehensive. Still, as it is fairly clear the DNA evidence is highly valued by investigators and Crown Counsel, acting as a vehicle for this information, the National DNA Data Bank, in its relative infancy, has proven to assist in many successful case outcomes and is considered an excellent investment for the criminal justice system.
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