DNA Sampling, Profiling and Storing in Criminal Procedure
Date Issued
2011
Date
2011
Author(s)
Tu, Wei-Chun
Abstract
During the past years, the DNA identification technologies have played an outstanding role in criminal investigation, helping to exonerate the wrongly accused, as well as convicting the actual criminal actor. However, the advantage of this new technology has also jeopardized certain human rights and civil liberties in a more intrusive way than ever, which, in this essay, could be subdivided into three categories: sampling, profiling and retention. Each of these constitutes interference with the fundamental rights laid down in the Constitution and respectively requires a legal basis which could also restrain the authority from disproportionate intrusion on individual rights. In this regard, this essay demonstrates that both the Code of Criminal Procedure and the DNA Sampling Act not only fail to provide an adequate ground, but also flunk in the guarantee of proportionate interference.
Consequently, this essay suggests that an amendment be enacted. First, in view of the intrusion on constitutional rights by DNA techniques, it is the neutral and detached judicial officers, namely judges rather than prosecutors should be authorized to the determination of sampling, profiling and retention of DNA. Second, since DNA samples carry all the genetic information, which is highly private and sensitive, the use of samples should be restricted to what is necessary and proportionate to identify the criminal actor, and should be destroyed when no more required. Last but not least, when it comes to DNA database, indiscriminate and infinite retention of DNA profiles is deemed to be unconstitutional, so this essay also, via research of German law, sets forth the criteria of inclusion and deletion of DNA profiles in the databases, as well as the regulation of data protection, which attempts to strike the balance between the benefit of DNA technologes and human rights.
Subjects
DNA sampling
the DNA Sampling Act
DNA database
interference with constitutional rights
bodily investigation
SDGs
Type
thesis
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