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Human Genome News Archive Edition

Human Genome News, March 1994; 5(6)

DOE Funds Judicial Reference Books

Desk Books To Help Judges Understand, Apply Scientific Principles

In response to the rapidly expanding number of cases involving complex scientific and genetic data, U.S. agencies are funding the development of a series of primers to assist judges and other court personnel in processing these cases. A set of five judicial reference books is being produced by the project on Court-Adjudicated and Court-Ordered Health Care, directed by Franklin Zweig at the Center for Health Policy Research, George Washington University (GWU). These volumes describe case law and complicated adjudication topics in which accurate, reliable technical information from the health sciences is critical. (For more information on the project, see Project Goals and the Judicial Reference Book Project.)

The Hon. Sherman G. Finesilver (Chief Judge, U.S. District Court for the District of Colorado) said of the desk books, "We are living in an increasingly scientific and technical world in which judges are expected to be the gatekeepers of science as it interfaces with society. The principles set forth in these books go beyond DNA and genetics and provide us with the tools we need to understand and apply these principles to other litigation centered on scientific data. Ultimately, this knowledge will make judges more articulate in searching for truth." Chief Judge Finesilver also pointed out that DNA data does not stand alone but is considered along with other evidence presented in court.

This project is supported by the Ethical, Legal, and Social Issues component of the DOE Human Genome Program, the State Justice Institute, the National Institute of Justice, and the Federal Bureau of Investigation (FBI). The project's consortium approach is guided by an Advisory and Review Committee, chaired by the Hon. Shirley S. Abrahamson (Justice, Wisconsin Supreme Court) and composed of judges, scientists, and lawyers representing a full spectrum of legal interests.

Justice Abrahamson stressed that development of the desk books will also benefit the public. "People expect the courts to treat all citizens fairly," she said. "Better judicial understanding of complex scientific data cannot help but lead to fair and just results, both within a given court system and across jurisdictions." She further noted that judges familiar with scientific concepts will be better equipped to minimize delays in litigation based on such concepts.

Workshops connected with the project's first two books have already been held. Selected discussion highlights are given below.

Workshop on Adjudication of DNA Forensic Technology

To gather information for the first book, attendees at the Workshop on Adjudication of DNA Evidence in Criminal Cases, chaired by Justice Abrahamson, focused on DNA evidence, especially as it relates to murder and rape. The following background information was furnished to participants.

When cases depend on such sophisticated scientific and technical evidence, special safeguards are needed to ensure a fair trial. The trial court must have a clear understanding of the scientific foundation on which the evidence is based and the technical means by which it was discovered, collected, processed, tested, and reported. In ruling on the admissability of DNA evidence for presentation to a jury, the judge must ensure that it is valid and reliable; scientifically acceptable; sufficiently valuable when weighed against its capability to confuse or prejudice a jury; and manageable in harmony with other procedures-pre-trial, at trial, and post-trial.

Criminal investigations using DNA forensic analysis began in England in 1985 after two cases, both involving rape and murder, yielded semen samples that were matched to collected DNA evidence. From 14 U.S. cases in 1987, DNA samples in an estimated 12,000 cases had been sent to laboratories by mid-1993. This momentum has been fueled by the hope of law enforcement officials that DNA testing, profiling, and typing will provide personal identification evidence even more useful than fingerprinting. The result has been expanded use of DNA tests amid rapidly changing technology.

About equal numbers of DNA samples are sent to FBI and private laboratories. Most samples are blood or semen, but other tissues may be tested when cells can be recovered, for example, in saliva, hair follicles, and bone. Earlier DNA-based forensic technology produced X-ray films (auto-radiographs) of DNA fragments through restriction fragment length polymorphic (RFLP) analysis. The new generation of analysis uses polymerase chain reaction techniques, some of which are considered less sensitive than RFLP analysis but have important advantages for investigating small or degraded evidence samples. To maximize the best features of each approach, the FBI laboratory is turning to a combination of methods.

Critics charge that DNA forensic technologies have been rushed into service before the standardization necessary for quality assurance and interpretation has been established; also, DNA analysis is still evolving into well-understood, well-validated forensic techniques. Defenders state that any forensic method is subject to error. Standard-based protocols, quality assurance, and monitoring of laboratory and personnel proficiency can reduce flawed or skewed DNA test results based on technical error in collecting and processing evidence.

In addition, members of the scientific community disagree on the interpretation of statistical methods used to calculate the probability that two DNA samples (i.e., suspect DNA and evidence DNA) came from the same source. Probabilities against a random match are estimated to range between hundreds and billions to one.

Patricia Riley, Chief of the U.S. Attorney's Sex Offense Unit in the District of Columbia, reported that the admissibility of DNA evidence was upheld in 95 of appellate cases. Her research also found that courts are raising other considerations related to DNA evidence, including pre-trial hearings on admissability, court-appointed experts for the defense, chain of custody, and appropriate jury instructions.

Workshop on Adjudication of Genetic-Testing Evidence

The Workshop on Adjudication of Genetic-Testing Evidence in Health-Care Cases, held in connection with the second book and chaired by Chief Judge Finesilver, dealt with legal, scientific, ethical, and philosophical aspects of cases involving genetic testing and gene therapy.

A hypothetical case was considered in which a judge was asked to rule on the state's request for maternal and fetal genetic testing of a 14-year-old ward of the state who was pregnant by a young man with an expressed genetic disease. This presentation by Laurinda Harman (GWU Medical School) was very provocative in regard to numerous ethical and legal issues that could confront the courts in the near future.

Chief Judge Finesilver said future genetic testing will probably be used in cases involving such controversial factors as electromagnetic fields and cellular telephones as carcinogenic agents, contaminated blood, and silicone gel breast implants. He cited the Americans with Disabilities Act (ADA), its effects on the courts, and the impact of medical science and technology on the development of ADA law. For example, these cases could raise the issues of what constitutes a disability and whether a genetic trait or predisposition can qualify as a disability. Chief Judge Finesilver also noted that genetic data is most likely to affect the judicial system in cases involving confidentiality and discrimination, employment, insurance, medical standards, wrongful birth, patents, testing, and court-appointed experts.

Summary

In commenting on the usefulness of the workshops, Zweig said, "Courts usually have to wait for litigation filed in great numbers before they confer about it. In these genetic cases, it is possible to get ahead of the curve and become familiar with some very complex scientific information on the developing margins so that case management will proceed effectively."


HGMIS Staff

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