TAILORING THE RULES OF ADMISSIBILITY: GENES AND CANADIAN CRIMINAL LAW
AbstractDIVA typing has recently been introduced into the Canadian criminal justice system, both to exculpate and inculpate accused persons. Originally developed and used in the. United Kingdom and the United States, DNA typing identifies individuals by comparing DNA fragments isolated from biological material derived from known and unknown sources. Since DNA typing evidence will often result in a conviction, the use of this powerful evidence calls for the development of standards, in Canadian law, for its admissibility. In ruling on the admissibility of DNA typing results, three points must be considered. First, it must be determined whether the technique is ready for use in court. In the United States, the admissibility of novel scientific evidence is often determined on the basis of general acceptance within the scientific community. The application of this standard to DNA typing, however, involves consideration of its acceptance in the forensic context rather than in respect of research and diagnostic applications, for which the technique was originally developed. Secondly, courts must consider the reliability of specific results. In assessing such reliability, many elements must be considered, involving both the condition of the sample and the actual performance of the test. Finally, the use of probability results in criminal trials, and their effect on the jury's determination of guilt or innocence, must be carefully examined.
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