Reference materials are necessary for identification of the offender when traces were revealed on the crime scene. They can be obtained through official collecting of reference materials from person suspected (arrested) for offence or gaining access to materials self-generated by the person. In order to identify differences and to establish model solutions, comparative law research was carried out for selected countries of the common law (US, UK) and civil law (Germany, Netherlands, France, Sweden, Italy, Poland) systems. The analysis was focused on conditions and procedures for obtaining of reference materials for identification purposes in criminal proceedings.
Collecting of reference materials from a person influences on privacy area, because materials contain an information about a person and such activity usually violates integrity of the body. Moreover, in some cases it violates a presumption of innocence principle and nemo se impsum accusare tenetur rule. Research shows that many types of reference materials (ia. DNA, fingerprints) can be directly and compulsory collected from suspected / arrested person in all analysed countries, if there were reasonable grounds for suspecting the person for committing the crime and material was necessary for identification of the person. In US the collection of materials from the body of person is recognized as a search and it is needed to confirm a probable cause for collecting of reference material. In analysed civil law countries reference materials can be collected compulsorily from suspected persons in various restrictions (type of crime, prosecutor/court consent, presence of medical staff). In many countries coercive measures or penalties can be applied for collecting reference materials.
More diverse approaches are observed for collecting comparative materials from third parties or initially suspected persons (without direct suspicion). In common law (US, England & Wales, New Zealand, Canada) samples can be only with consent and no specific regulations were applied. In some civil law countries reference samples can be collected only by written consent of the person (Germany, Netherlands). In other analysed countries reference materials from third parties can be collected without a consent (Italy, Poland, Sweden, Finland). In France a criminal penalty can be ruled for the person, who refused for a providing the material.
The second part of the second part of research was focused on the use of materials abandoned by the suspected person. In US the materials abandoned by the person in public place can be applied for identification purposes in the case (California v. Greenwood, 1988; State v. Burns, 2023). In civil law systems this method of obtaining the materials is not prohibited, but it raises a fundamental doubts about the adequacy and reliability of comparative materials.
The optimal legal conditions for obtaining of reference samples for identification purposes was proposed in the presentation.