d. Rule on DNA Evidence (AM 06-11-5-SC)

Meaning of DNA

Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic information in all living organisms. A person’s DNA is the same in each cell and it does not change throughout a person’s lifetime; the DNA in a person’s blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins. (Agustin vs. Court of Appeals, G.R. No. 162571, 2005)

“Biological sample” means any organic material originating from a person’s body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva and other body fluids, tissues, hairs and bones (Rule on DNA Evidence, Sec. 3a)

"DNA evidence” constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples (Rule on DNA Evidence, Sec. 3c)

Application for DNA testing order

A person who has a legal interest in the litigation may file an application for DNA testing order before the appropriate court, at any time (Rule on DNA Evidence, Sec. 4)

The order for a DNA testing shall not, however, be issued as a matter of course and from the mere fact that the person requesting for the testing has a legal interest in the litigation. For the order to be issued, there must be a showing of the following:

• A biological sample exists that is relevant to the case;
• The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons;
• The DNA testing uses a scientifically valid technique;
• The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and
• The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of integrity of the DNA testing. (Sec. 4, Rule on DNA Evidence)
• There must be a prima facie showing of relationship or paternity (Lucas v. Lucas, G.R. No. 190710, June 6, 2011)

Note: The Court may motu proprio order a DNA testing (Rule on DNA Evidence, Sec. 4) If the court finds that the requirements in Sec. 4 have been complied with, the court shall:

• Order, where appropriate, that biological samples be taken from any person or crime scene evidence;
• Impose reasonable conditions on DNA testing designed to protect the integrity of the biological sample, the testing process and the reliability of the test results, including the condition that the DNA test results shall be simultaneously disclosed to the parties involved in the case; and
• If the biological sample taken is of such amount that prevents the conduct of confirmatory testing by the other or the adverse party and where additional biological samples of the same kind can no longer be obtained, issue an order requiring all parties to the case or proceedings to witness the DNA testing to be conducted (Rule on DNA Evidence, Sec. 5)

A court order is not always required before undertaking a DNA testing. The last paragraph of Sec. 4 of the Rule on DNA Evidence allows a testing without a prior court order if done before a suit or proceeding is commenced at the request of any party, including law enforcement agencies. This also means that a litigation need not exist prior to DNA testing. Thus, a court order shall be required only if there is a pending litigation, but not before the litigation (Riano, p.145)

A court order granting a DNA testing is not appealable and is immediately executory as Sec. 5 of the Rule on DNA Evidence provides. The remedy would be to file a petition for certiorari under Rule 65, but this shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order (Riano, p.145)

Post-conviction DNA testing; remedy

A person convicted under a final and executory judgement may still avail himself of DNA testing. The test after his conviction is termed “postconviction” DNA testing. Significantly, Sec. 6 of the Rule allows post-conviction DNA testing. It may be available to (a) the prosecution, or (b) the person convicted by a final and executory judgement, provided that the following requirements are met:

• A biological sample exists
• Such sample is relevant to the case; and
• The testing would probably result in the reversal or modification of the judgement of conviction (Riano, page 147 citing Sec. 6 of the Rule on DNA Evidence)

Note: There is no requirement of a prior court order to avail oneself of this.

If the results of the DNA testing are favorable to the convict, he may file a petition for a writ of habeas corpus with the court of origin. The court shall then conduct a hearing and in case the court finds, after due hearing, that the petition is meritorious, it shall reverse or modify the judgement of conviction and order the release of the convict, unless his detention is justified for a lawful cause.

The petition shall be filed with the court of origin as a rule. However, the rule also allows the petition to be filed either with the Court of Appeals or with the Supreme Court, or with any member of said courts. A hearing may be conducted by the latter courts or by any member thereof or instead of conducting a hearing, may instead remand the petition to the court of origin and issue the appropriate orders. (Riano, page 147 citing Sec. 10, Rule on DNA evidence)

Note: The petition for a writ of habeas corpus may also be filed by the prosecution.

Assessment of probative value of DNA evidence and admissibility

In assessing the probative value of DNA evidence, courts should consider the following data:

• How the samples were collected,
• How they were handled,
• Possibility of contamination,
• Procedure followed in analyzing the samples,
• Whether proper standards of procedure were followed in conducting the tests,
• Qualification of the analyst who conducted the test. (People v. Vallejo G.R. No. 144656, 2002)

By the terms of Sec. 5 of the Rule on DNA Evidence, the grant of a DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result of the testing. This necessarily means that the court will still have to evaluate the probative value of the proposed evidence before its admission.

The determination of the probative value of the DNA evidence rests upon sound judicial assessment taking into consideration the following matters:

• The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples;
• The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests;
• The forensic DNA laboratory, including accreditation by any reputable standardssetting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and
• The reliability of the testing result, as hereinafter provided. (Riano, page 146 citing Sec. 7, Rule on DNA Evidence)