Justice Faces the Genome: Trials and Tribulations

Justice Faces the Genome: Trials and Tribulations
By Denise Casey, HGMIS,
Human Genome Project.
Human Genome News, July-September 1996; 8:(1)

Educating the Courts to Meet the Body of Changing Scientific Evidence For most visitors to Cape Cod, parades, picnics, and fireworks are the usual topics of conversation during the Fourth of July week. Among the throngs of vacationers this summer was a group of judges, science advisors, and others bent on more serious discussion during a week-long meeting sponsored by the Ethical, Legal, and Social Issues (ELSI) component of the DOE Human Genome Program. The topic: DNA testing and the massive impact it soon will have in courtrooms across the nation. The implications of DNA testing have the potential to overwhelm the legal system and shake its centuries-old foundations.

Consider this scenario:

Jeffrey Chase was adopted at 4 months in 1958, when adoption privacy was paramount and no information on biological parents was released. Jeffrey began exhibiting personality problems when he was 2 years old. Through the preschool, elementary, and high school years he displayed increasingly severe behavioral disorders. At 17, he assaulted a 4-year-old girl, choking and traumatizing her. He was tried for attempted murder, convicted, and sentenced to 30 years in prison. After serving 21 troubled years, he was released. Within 6 weeks he shot and killed his adoptive parents.

Could Jeffrey's genetic endowment have influenced his behavior? If researchers pinpoint genetic influences on aberrational behavior more precisely, will this rationale be used to absolve people of personal responsibility for their actions the cornerstone of 600 years of Anglo-American law? Or will proof of an unalterable predisposition to violence cause a jury to choose the death penalty for a convicted murderer on the grounds that a person's genetic makeup precludes any possibility of rehabilitation in prison? What other ways might scientific advances be used to justify imposing the state's power?

Other Issues Looming

"Science is moving so fast the courts must scramble to cope," says Franklin Zweig, president of the nonprofit Einstein Institute for Science, Health, and the Courts (EINSHAC), a think tank housed on the life sciences corridor in Bethesda, Maryland. While advances accelerate in the Human Genome Project and the broader genomics communities, questions continue to mount about privacy, the fair and valid use of DNA information, and intellectual property. EINSHAC developed the "working conversation" meetings to allow judges to begin considering these issues before being confronted with them in court.

"A growing tide of evidence based on genetics threatens to engulf our legal system," Zweig said. "More than 30,000 judges across the country soon could be struggling with new questions: What genetic information is valid as evidence in criminal and civil cases? Does an individual have the right not to disclose results of a genetic test to family members, insurers, and employers? Whose privacy rights are more important in adoption cases? How might a parental predisposition to disease affect custody decisions? When should genetic tests be ordered in health-care decisions?"

Courts at the Front Lines

Legislatures and administrative agencies are attempting to address some aspects of these thorny issues (see "Genetic Privacy and Property"), but the courts do not have the luxury of time for extended debate. Court access is unlimited, and people will turn to litigation to resolve the growing list of dilemmas arising from the increased availability of genetic knowledge (see "A Look at Future Cases"). Early encounters with evidence for identifying DNA in criminal cases - already have provoked controversy and confusion and resulted in over 150 varying DNA-admissibility decisions.

Because of the 1993 U.S. Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals, Inc., judges have greater responsibility to weed out unreliable "junk" science to ensure that the expert testimony is relevant and valid. The vast majority of judges, however, have no knowledge of genetics and are skeptical about the often-biased testimony of expert witnesses hired by opposing parties in legal cases.

A Changing Paradigm

Traditionally, courts looked to past precedents to guide their decisions, but the personal and familial nature of genomic information poses many unique and complex questions for which past decisions offer little collective wisdom. Judges will need - assistance to effectively manage the highly complex - genetics-related cases for which they will make rulings that chart new legal territory, Zweig says.

Judge Pauline Newman (U.S. Court of Appeals for the Federal Circuit in Washington, D.C.) says the problem is one of growing urgency. "We are reaching a critical threshold. If we understand the fundamentals of this new and powerful science, we can better weigh what the experts tell us in a partisan setting. It's our responsibility to become educated enough to decide the issues correctly and wisely." Newman is the chairperson of EINSHAC's judicial advisory-and-review committee for the Genetics Adjudication Resource Project (GARP).

New Tools

EINSHAC established GARP in an attempt to develop solutions before courts become bogged down in genetic issues. GARP is supported in part by the ELSI component of the DOE Human Genome Program. GARP's dual goals over the next few years are to alert 1000 judges to the potential surge of cases involving genetic questions and provide resources to help them evaluate and adjudicate these issues.

Resources include working conversations with judges, lawyers, and science advisors and a Web site for rapid information exchange and links to the courts. Future efforts will involve identifying changes the legal system could make to help courts apply genetics-related evidence more effectively.

The hoped-for bottom line: Judges who can keep junk science out of the courtroom. "We want an informed group of people in the courts who can recognize a bill of goods," says Daniel Drell, director of the DOE ELSI program. "The planning and educational efforts at the Cape Cod meeting represent an important step toward achieving that goal."