DNA phenotyping: A possible aid in criminal investigation

• Citation: (2023) 36 SACJ 1
• DOI: https://doi.org/10.47348/SACJ/v36/i1a1
• Published date: 31 July 2023
• Pages: 1-23
• Author: Meintjes-van der Walt, L.
• Date: 31 July 2023

DNA phenotyping: A possible aid

in criminal investigation

LIRIEKA MEINTJES-VAN DER WALT*

ADEBOLA OLABOREDE**

ABSTRACT

This art icle examines DNA phenoty ping in general and high lights

international per spectives regarding t he use of this techniq ue. The article

interrogates the genetic ba sis of predicting externally visible cha racteristics,

the potential value of the tech nique, and the pitfalls regardi ng its use. Despite

the ethical and legal concer ns and debates concerni ng DNA phenotyping,

the potential value of thi s technique should not be underest imated. In the

context of the high number of ser ious crimes such as r ape and murder that

remain unsolved in Sout h Africa, the resp onsible and scientic application

of DNA phenotyping might prove to be an effec tive additional tool in

crimin al investigation.

1 Introduction

This article examines deoxyribonucleic acid (DNA) phenotyping

and highlights international perspectives regarding the use of th is

technique.1 Recent advancements in genetic technologies have led to

the development and application of forensic DNA phenotyping (FDP).2

FDP, or molecular photo tting, involves a ‘set of techniques used in

analysing the DNA from the biological evidence obtained at a crime

scene to predict the externally visible characteristics of the unknown

suspect(s) to aid the police in their criminal investigations.’3 The term

‘phenotype’ is related to ‘pheno’ which is derived from the Greek

* B Juris LLB (UPE) LL M (Rhodes) DJuris (Leide n); Adjunct Professor of Law and

Leader of the Law, Science and Just ice Research Niche Area, University of For t Hare.

** LLB (Nigeria) LLM (Stellenbo sch) LLD (UFH); Time on Task Lecture r, Faculty of Law,

University of Fort Ha re.

1 LA Marano and C Fr idman ‘DNA phenotyping cu rrent application in forensic science’

(2019) 9 Res & Rep in Forensic Med Sci 1-8 at 1.

2 CE MacLean ‘Creat ing a wanted poster from a drop of bloo d: Using DNA phenotyping

to generate an art ist’s rendering of an of fender based only on DNA shed at t he

crime scene’ (2013) 36 Hamline L Rev 357-377; R Hopman ‘Openi ng up forensic

DNA phenotyping: T he logics of accuracy, commonality and valu ing’ (2020) 39 New

Genetics & Soc’y 424 - 440.

3 Marano and Fridm an op cit (n1); F Queiros ‘The vi sibilities and invisibilities of r ace

entangled with forensic DN A phenotyping tech nology’ (2019) 68 J Forensic & Legal

Med 101858, https://doi.org/10.1016/j.jm.2019.08.002.

https://doi.org/10.47348/SACJ/v36/i1a1

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(2023) 36 SACJ 1

© Juta and Company (Pty) Ltd

words ‘phainein’, meaning ‘to show’ and ‘typos’, meaning ‘to type’.4

The phenotype indicates obser vable traits of a person, such as eye,

hair and skin colour, and their age, sex, and geographic ancestry.5

The exposition below interrogates the genetic basis of predicting

externally visible characteristics, the potential value of the technique,

and the pitfalls regarding its use. T he article also considers whether

the denition of the Crim inal Law (Forensic Procedures) Amendment

Act 37 of 2013 should be amended to make provision for the use of

FD P. 6

Forensic science techniques used in criminal cases have created

great possibilities for the administration of justice.7 In particular,

DNA proling has aided crim inal investigations, contributed to the

conviction of guilty persons, and assisted with the exoneration of

wrongfully convicted persons.8 DNA is ‘the hereditar y biological

4 SD Hodge ‘Current contr oversies in the use of DNA in forensic investigatio ns’ (2018)

48 Univ Baltimore L Rev 39 at 5 6.

5 Marano and Fridm an op cit (n1) 1-8; G Samuel and B Prains ack ‘Forensic DNA

phenotyping in Eu rope: Views “on the ground” from those who have a professional

stake in the technolog y’ (2019) 38 New Genetics & S oc’y 119-141; M Kayser ‘Forensic

DNA phenotyping: Pred icting human appe arance from cri me scene material

for investigative purpos es’ (2015) 18 Forensic Sci Internat’l Ge netics 33-48;

PMSchneider, B Prainsac k and M Kayser ‘The us e of forensic DNA phenotypi ng in

predicting appea rance and biogeographic ancestry’ (2019) 116 Deutsches Arztebl att

International 873-877 a nd Hopman op cit (n2).

6 The current de nition of ‘forensic DNA a nalysis’ in s 15E(l) of the South Af rican

Police Service Act 6 8 of 1995 (as amended) and s 36A( fC) of the Crimi nal Law

(Forensic Procedures) Amendm ent Act 37 of 2013 refer to ‘the analysi s of sections

of the DNA of a bodily sa mple or crime scene sample to d etermine the fore nsic

DNA prole: Provided th at this does not relate to any analysis per taining to medical

tests or for health pur poses or mental ch aracterist ic of a person or to determ ine

any physical informat ion of the person othe r than the sex of that p erson.’ In other

words FDP which includes ex ternally v isible character istics and forensic DNA

prole ‘means the res ults obtained f rom forensic DNA analysis of b odily samples

taken from a person or sa mples taken from a crime scene, providi ng a unique string

of alpha numeric char acters to provide identit y reference: Provided th is does not

contain any infor mation on the health or medical condit ion or mental characteristic

of a person or the predi sposition or physical in formation of the pers on other than

the sex of that person.’ The refore these section s provide that no medica l or health

condition nor predispo sition or physical appearanc e may be included in the DNA

prole (see ss 15E(m) of the South African Police Se rvice Act and 36A ( fD) of the

Crimina l Procedure Act of 2013).

7 IE Dror and RM Morg an ‘A futurist ic vision of forensic science’ (2019) 65 Jf Forensic

Sci 8-10, doi:10.1111/1556-4029.14240 .

8 A Olaborede and L Meintj es-van der Walt ‘The da ngers of conviction based on a

single piece of forensic evidence’ (202 0) 23 PER/PELJ 1-3 8.

2 SACJ . (2023) 1

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