Ghana: Using DNA for accuracy and for resolution of wrongful convictions

t Chief Justice Theodora Georgina WoodIn 1985, a sad Ghanaian mother called Christiana Sarbah, who had been fighting for two years to prove to the British authorities that a boy called Andrew was indeed her son had a reason to smile when a new invention of identifying the genetic code of people proved her right.

Professor Alec Jeffreys, an Oxford trained scientist, had settled immigration dispute in England with DNA (Deoxyribonucleic acid) fingerprinting, and soon it opened the doors of opportunity to detectives to crack difficult and intriguing cases.

The use of DNA has unraveled many cold and complicated crimes and helped to prove innocence and guilt in very serious and aggravated crimes.

Ever since Jeffreys’ DNA eureka!, many countries have developed and built DNA data banks, which have helped their criminal justice system enormously to unravel complicated crimes and enhanced accuracy in establishing the innocence or guilt of accused persons.

The accuracy of the criminal justice system has been called into question by DNA in recent years by revelations worldwide, and this reliable and credible investigative technique has been used to free innocent people from prison and even on death row.

DNA technology is rapidly becoming the method of choice when it comes to linking individuals with crime scenes and criminal assaults and DNA evidence is increasingly used in criminal trials, and has become a powerful tool in proving the innocence of wrongly convicted prisoners.

This is a change from the past as hitherto, the only sure way to establish the identity of an individual was to examine his or her finger prints and eye witness’s testimony.

DNA evidence is also proving to be a powerful tool in determining the innocence of prisoners who were tried and convicted before the advent of DNA testing. If bodily samples, such as blood, semen, saliva, phlegm, spit, hair, skin, stains, were collected from the crime scene or victim and that evidence is still available for DNA testing, a showing that the prisoner’s DNA does not match the crime scene, thus, making the DNA a powerful reason to conclude that the prisoner is innocent and should be released.

DNA evidence has thus far resulted in the release of so many wrongly convicted prisoners (many of whom have served many years in prison or were even facing the horrible death penalty).

Most instances of wrongful or erroneous convictions are due to mistaken eyewitness identification. In Ghana, DNA is heard of only in paternity tests and in petitions and applications to migrate to USA and Britain and elsewhere.

Indeed you hardly hear of DNA in police investigations or in criminal trials in Ghana. I stand to be corrected but dare say that it is almost, if not impossible to cite one criminal case where DNA evidence was relied on in Ghana to either convict or exonerate an accused person.

All convictions are based on eyewitness and victims’ accounts and identification which more often than not are unreliable but tend to win the sway of prosecutors and judges.

On the crime scenes, you seldom hear of police looking for and testing saliva, blood, hair, stains and other materials for conclusive DNA evidence of guilt or innocence. On the contrary, some of the evidence looked for may be irrelevant and of little help to the tier of fact.

The undesirable end results are countless incidences of erroneous and wrongful convictions of the innocent and their unwarranted long incarceration without trial.

Ghana’s criminal justice system is saddled with a plethora of pitfalls. Long remands without trial, overcrowded police and prison cells, wrongful convictions, admission of unreliable evidence from dubitable armchair investigative tactics, unsolved murder, sexual assault and rape cases

The wrongful conviction of an innocent person is the worst nightmare to anyone who cares about justice. Our criminal justice system has a number of safeguards designed to ensure that wrongful convictions are avoided, and the overwhelming majority of convictions are accurate determinations of facts.

However, it is clear that wrongful convictions, long incarcerations without trial do occur as has been revealed by unbelievable mass media revelations of recent times.

This has been exacerbated by the epidemic upsurge of grievous crimes such as robbery, defilement, sodomy, murder and rape, many of which remain enigma and unsolved.

From time immemorial, public attention was on the danger of a guilty person going free but the danger of convicting a factually innocent person is real and should never be encouraged.

Recent advances in DNA technology and other forensic sciences in many jurisdictions and unrelenting zealousness and hard work by lawyers and non- lawyers alike have focused on the reality and danger of convicting an innocent person.

Wrongful conviction is a concern for all and sundry and it concerns anyone who cares about law enforcement, safety and protection of life and property. For every innocent person wrongfully convicted, a guilty person roams free.

Indeed, because the justice system is one of the corner pillars of democracy, it is not an over statement to say that wrongful convictions concerns anyone who cares about a democratic society.

A criminal justice system should be fair to all, and wealth, social status, religion, race, political affiliation and gender should not affect the administration of justice.

Ghana’s constitutional history and that of other democratic jurisdictions is replete with cases addressing this promise.

Decisions in some notable cases breathe life into the principle that no one shall be denied life, or liberty without due process of the law and that all persons are entitled to equal protection of the law. DNA comes in handy to put this value at the door step of every man or woman.

The time is ripe for Ghana to seriously adopt DNA in its criminal jurisprudence to ensure that not only the guilty are incarcerated, but the innocent are not wrongfully convicted and imprisoned, for as the time honoured axiomatic legal adage goes, ‘It is better to let 10 guilty persons go free than to imprison one innocent person’’

By Mathias Kwasi Yakah

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