The cross-border collection of DNA evidence in the European Union and its effects on Spain. The problem of the «familial (DNA) searches»

Abstract

DNA evidence, as is currently considered, is not infallible. But, we accept that DNA and its police databases is a tool that has an enormous potential in the fight against cross-border and domestic serious crime. That potential is being achieved, on the one hand, due to the continuous scientific and technological advances, which are being used to improve the investigation of serious crimes, and, on the other, due to the increasing use of the probability calculations in the field of the assessment of evidences, particularly, scientific evidence. Some of these advances are being taken into account by the European and national legislator so that this legislation can allow the obtaining of expert DNA evidence that can be highly valued by national Court. Although reliable evidence can be obtained due to the above mentioned advances, these ones can impede the obtaining of lawful evidence, which will hinder, ultimately, the collection of admissible expert DNA evidence. Therefore, the European and national regulation, particularly Spanish legislation, has to fulfill two requirements: 1) if it allows for DNA evidence to be obtained as reliably as possible; 2) if it allows for DNA evidence to be lawfully obtained. And both requirements have to be met in the three phases that involved what I refer to as «the forensic use of the technology of DNA», namely, the phase 1) of collection of the DNA sample; 2) of analysis of the DNA profile in the laboratory and, 3) of processing of DNA data in a database. 
According to the exposed approach, it is necessary to explain what the meaning of lawfulness and reliability is and, also, to identify the intended purpose in each one of the three phases. Under this framework, we can identify and analyze the adopted regulations at EU level and its impact on Spanish Law. It will allow the analysis of the legal questions that impede the cross-border obtaining of effective DNA evidence. In this context, we are going to address the advisability of a regulation, at European Union level and also in the legal systems of the Member States, of the «Familial (DNA) Searches» in the DNA databases and the lawfulness and reliability problems that this kind of search raises.