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GENES AND JUSTICE The Second Generation

DNA Tests Offer Deeper Examination Of Accused

Biological, Emotional States Scrutinized

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By Rick Weiss
Washington Post Staff Writer
Sunday, April 20, 2008; Page A01

Twenty years after DNA fingerprints were first admitted by American courts as a way to link suspects to crime scenes, a new and very different class of genetic test is approaching the bench.

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Rather than simply proving, for example, that the blood on a suspect's clothes does or does not match that of a murder victim, these "second generation" DNA tests seek to shed light on the biological traits and psychological states of the accused. In effect, they allow genes to "testify" in ways never before possible, in some cases resolving long-standing legal tangles but in others raising new ones.

Already, chemical companies facing "toxic tort" claims have persuaded courts to order DNA tests on the people suing them, part of an attempt to show that the plaintiffs' own genes made them sick -- not the companies' products.

In other cases, defense attorneys are asking judges to admit test results suggesting that their clients have a genetic predisposition for violent or impulsive behavior, adding a potential "DNA defense" to a legal system that until now has held virtually everyone accountable for their actions except the insane or mentally retarded.

Some gene tests are even being touted for their capacity to help judges predict the likelihood that a convict, if released, will break the law again -- a measure of "future dangerousness" that raises questions about how far courts can go to abort crimes that have not yet been committed.

Most of these tests are still research tools hovering on the margins of admissibility; only a few have made the leap from the lab bench to the courtroom. But scientists' expanding ability to query people's genes, and lawyers' efforts to introduce those findings as evidence, are forcing scholars and judges to think in new ways about the Constitution's protections against self-incrimination and unreasonable search and seizure.

At its extreme, the prospect of getting an accurate handle on future dangerousness challenges the very notions of autonomy and free will that are at the core of any theory of criminal responsibility.

"So far, judges have been cautious," said Karen Rothenberg, dean of the University of Maryland School of Law. But given what Rothenberg calls the "love affair" that courts have had with DNA fingerprints, she and others fear that judges and juries will fall too quickly for the new tests.

"As the cost of gene testing comes down . . . we're likely to see clever defense counselors taking steps to use the outer reaches of genetic testing," said Judge Andre M. Davis of the U.S. District Court for the District of Maryland, speaking at a recent Baltimore roundtable co-sponsored by the law school and the National Human Genome Research Institute. "The question is, can the judge manage the case so the jury is not taken down the primrose path of genetic test results?"

Shadows of Eugenics

Genes have had a rocky relationship with justice, dating at least to the early years of the last century, when eugenics laws encouraged forced sterilizations to break the cycle of "inherited criminality."

"Shiftlessness, nomadism, pauperism all were assumed to have biological and genetic causes," said Jeffrey R. Botkin, a physician and ethicist at the University of Utah School of Medicine.

Today, Botkin said, scientists know that genes are only part of what adds up to human health and behavior. But with environmental influences more difficult to pin down and a torrent of new, if preliminary, DNA findings to choose from, lawyers and judges are once again being tempted to lean heavily on genes to help them make difficult legal decisions, he said.


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