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NA Tests Offer Deeper Examination Of Accused
Biological, Emotional States Scrutinized
By Rick Weiss
Washington Post Staff Writer
Sunday, April 20, 2008; 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.
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.
Civil courts were the first to start admitting and in some cases even
compelling second-generation DNA tests. A survey led by Rothenberg and
University of Maryland Associate Dean Diane Hoffmann found that in 127 court
cases that involved health-related DNA information, more than half had to do
with medical malpractice, and most of those were birth-injury claims in
which a parent blamed a doctor for a child's neurological or developmental
problems. Judges have increasingly granted doctors' requests that such
children be tested for fragile X syndrome, the most common form of inherited
mental retardation.
The tests can bring much-needed evidence to bear but can also be
intimidating -- a potential boon for the doctors. In several instances,
parents have either dropped or settled their cases rather than submit their
children to a definitive diagnosis that could affect their eligibility for
health insurance.
In one case, a mother sued a doctor and a hospital, claiming that negligence
during her labor and delivery caused her daughter permanent brain injuries.
A geneticist suspected that the girl had Angelman syndrome, a rare disease
caused by a defective chromosome. The trial court ordered a DNA test, but
the mother refused, resulting in her not only losing the case but also being
held in civil contempt.
Similar tactics have been used in "toxic tort" cases, in which people sue
alleged polluters for causing their medical problems. In these cases, judges
can compel tests that look for the hallmarks of DNA damage caused by certain
chemicals.
Plaintiffs have prevailed when the signature DNA injury was found. By
contrast, in a case in which a company was sued by people who blamed their
various ailments on the company's benzene pollution, the company was found
not liable after tests on the plaintiffs did not find the telltale DNA
changes caused by benzene.
Measuring a Life Span
Less well developed but potentially more contentious are genetic tests that
can help predict how long a person will live.
Anticipated life span can be a big factor when deciding how much a wronged
person deserves in money damages -- for example, how much a person might
have earned over a lifetime if she had not been disabled by a drunken
driver. Toward that end, courts have long admitted crudely predictive
evidence such as whether the person already had a terminal disease, smoked
cigarettes or engaged in "intemperate habits." Some have even compelled
tests for the virus that causes AIDS.
Now life-span testing has expanded into the genetic arena, and not just to
calculate damages. In one child custody case, a judge granted the father's
request that the mother get tested for the gene that causes Huntington's
disease, an inherited and incurable disorder that causes dementia in
midlife. Half of individuals who have a parent with the disease carry the
ticking time bomb, and most choose not to learn their status in advance.
When the judge granted the motion, the mother fled the jurisdiction, giving
the father a victory, but not on the merits of his custody arguments.
Many genes contribute to longevity; just last month, researchers announced
the discovery of more than a dozen genes newly suspected of helping
determine a person's life span. Even if all of them were known, they could
at best provide a probabilistic estimate. But as those estimates become more
accurate, said Hoffmann, the Maryland associate dean, they will force judges
and jurors to think hard about a question that has long dogged legal
scholars: Should damage awards be linked to projected l
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