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You Be the Judge

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By Dwuan D. June
Washington Post Staff Writer
Sunday, April 20, 2008; 12:15 AM

A survey of 117 Maryland judges — 101 from state trial courts and 16 from U.S. District Court — were asked whether they would admit genetic test results as evidence for various purposes other than DNA fingerprinting. Here are two hypothetical cases the judges considered, and how they responded.

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Case 1

A 28-year-old defendant says he has schizophrenia, a disease that makes it difficult to distinguish reality from imagination, and so was mentally incapable of mustering the "criminal intent" that must be present to convict him of murder. He wants to have the results of a gene test for susceptibility to schizophrenia admitted. Would you allow the test, given that the disease can come and go in cycles of relapse and remission and that a person who tests positive has a 50 to 60 percent probability of manifesting the disease by age 25?

State judges
Yes: 50
No: 42

Federal judges
Yes: 5
No: 8

Case 2

A 21-year-old who has won a civil case finding that she was harmed by a product wants the court to admit a test that shows that she was born with an increased sensitivity to pain and so deserves more than the usual damages. What would you do, given that people who test positive have a 70 percent probability of having increased sensitivity to pain; the disease typically manifests between ages 18 and 24; and people who have this sensitivity find that even larger doses of painkillers fail to completely block pain?

State judges
Yes: 73
No: 16

Federal judges
Yes: 8
No: 5

For a full description of the study, published in Science magazine, see: sciencemag.org/cgi/content/full/sci;310/5746/241/DC1.

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