The Procedural Foundations of DNA Evidence
DNA analysis is among the most influential forms of evidence in criminal cases, yet its power depends entirely on whether the procedural rules governing the taking, storage, transfer and evaluation of samples were observed. The Criminal Procedure legislation regulates this chain through several norms: the taking of biological samples during inspection of the corpse, the grounds for appointing an expert examination, the rules for the object of expert research, and the requirements for the expert's conclusion. Mastery of these norms is where the defence and the prosecution gain or lose their advantage.
Article 128 regulates the inspection of the corpse: the external inspection is conducted by a party with the participation of an expert. For an unidentified corpse, dactyloscopic examination and the taking of a sample for expert research — including the taking of a biological sample and the storage of the genetic profile in the DNA database — are mandatory. In a case involving an unidentified body, the collection of biological material is therefore not a choice but a statutory duty, and its omission is itself a procedural defect the defence can invoke.
Grounds for Appointing an Examination
The governing rule is Article 144: an expert examination is conducted where, without the participation of experts in an appropriate field of science, technology, art or craft, it is impossible to establish factual circumstances significant for the case, and also where a trace, sign or feature significant for the case is observed on a body or an object containing information, whose correct understanding and perception is impossible without specialised knowledge. DNA research falls squarely within this category — interpreting a genetic profile demands specialised knowledge.
An examination is conducted on a party's initiative. If the object of the expert research is kept with the other party, that party is obliged to hand the object over to the expert of the initiating party. Where a party cannot obtain the object voluntarily, it may apply to the court at the place of the investigation with a motion for the transfer of the object to the expert. Such a motion must be examined no later than 48 hours, and the court's ruling is not subject to appeal. If the author of the motion fails to appear, the motion is not examined — a trap for the unprepared litigant.
Defence-Initiated Examinations and Protection of the Object
Amendments to the Code granted the defence significant guarantees. Where the expert of the initiating party failed to ensure, or did not ensure, the protection of the object of the expert research, the expert's conclusion is inadmissible evidence, and the questioning of the expert as a witness is likewise inadmissible. This is a severe sanction for a broken chain of custody: storing a DNA sample without proper protection directly strips the conclusion of legal force.
The defence may, after the transfer to an expert of an object obtained through its own motion within a primary investigation, require the expert to determine the possibility of conducting the examination repeatedly. Where the object is consumable or subject to destruction, or where this cannot be determined, the expert must immediately notify the prosecution, which in turn must immediately notify the defence. From that moment the defence may submit written questions to the prosecution within a period of 3 days from receipt of the notice, and the prosecution must immediately forward them to the expert.
Rules for the Object of Expert Research
Article 145 establishes the rules for the object: where its volume and properties permit, it must be transferred to the expert packaged and sealed. The object may be consumed in the quantity necessary for the research. Immediately upon completion of the examination, the unconsumed part must be returned, packaged and sealed, to the person or body that appointed the examination — or, where the examination was appointed on the basis of the rules on objects kept with a party, returned to the party with whom it was stored before the appointment.
In the DNA context these rules are decisive: sealing the biological sample and returning the unconsumed part preserves the possibility of a repeat examination should the case be disputed later. A defect in sealing is grounds for attacking the conclusion, because it opens the door to arguments about contamination or substitution of the sample.
The Expert's Conclusion and Its Assessment
Article 146 defines the content of the expert's conclusion. It must indicate the expert's identity — name, surname, education, speciality, length of service in the speciality, academic degree and title, place of work and position. It must also record that the expert was warned of criminal liability for deliberately giving a false conclusion, the grounds for conducting the examination, who was present, what materials were used, what object, document, sample or other object was studied, what research was conducted and what methods were applied, reasoned answers to the questions posed, and circumstances significant for the case established on the expert's own initiative.
The conclusion must be accompanied by the remaining items, samples, photographs, schemes and other materials confirming it, and the expert confirms the written conclusion with a signature. Immediately upon receipt of the conclusion, the initiating party must hand it to the other party where such a request exists. The right to receive the DNA conclusion is therefore guaranteed, and ignoring it constitutes a procedural violation on which the defence can build.
Frequently Asked Questions
How can the defence challenge a DNA conclusion?
The main route is the chain of custody: if the initiating party's expert failed to ensure the protection of the object, the conclusion is inadmissible. Substantive criticism of methods, seniority and materials used is also available.
Who takes biological samples during inspection of the body?
The external inspection is conducted by a party with an expert participating; for an unidentified corpse, taking a biological sample and storing the genetic profile in the database are mandatory.
Can the parties conduct their own examination?
Yes — an examination is conducted on a party's initiative. If transfer of the object is refused, the court is approached by motion, examined no later than 48 hours.
What happens if the sample is consumable?
The expert immediately notifies the prosecution, which notifies the defence. The defence may submit written questions to the expert within 3 days of receiving the notice.
How We Help on Legal.ge
The advocates of Legal.ge perform a complete legal analysis of DNA evidence: we verify the legality of the taking of samples and the chain of custody, assess the expert's conclusion, and move to have defective evidence declared inadmissible. Contact us if your case rests on DNA.