Regulating new forms of forensic DNA profiling under Australian legislation: familial matching and DNA phenotyping

Forensic DNA profiling uses ‘non-coding’ parts of the human genome to compare DNA profiles and establish links between individuals and crimes under investigation. In most situations, only a complete match between such profiles is significant. However, it is also possible to identify individuals through ‘familial matching’, for example, where a DNA database search yields a partial match with a suspect profile, suggesting that the suspect is a close relative of the person on the database. It has also become possible through ‘DNA phenotyping’ to analyse ‘coding’ parts of the human genome to produce a probabilistic assessment that the suspect is, for example, of a particular racial background, or has a particular hair or eye colour. Neither of these more novel techniques is mentioned in Australian forensic procedures legislation. This article argues that familial matching uses the traditional DNA profiling methodology and is no more invasive than established methods of investigation. However, DNA phenotyping employs a different methodology from traditional DNA profiling, and generates information beyond simply generating a means of identification. DNA phenotyping for externally visible traits should be permitted, but analysis for other traits, such as pathophysiology and psychopathology, should only be permitted if certain conditions are met.