The DNA Made Me Do It?
A fascinating article in the Washington Post explores new uses for DNA tests in the legal system. (We mentioned it yesterday in passing, but thought we'd say a bit more.)
Everything that's written on genetics has an obligatory section on eugenics. But after getting that out of the way, the piece turns to the more interesting possibilities for DNA. One is as a predictor of criminal behavior:
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.
For example, researchers have identified a genetic mutation in a brain enzyme that causes increased violent behavior. Could genetic predisposition towards violence one day be a possible defense by excuse?
As Vanderbilt's Nita Farahany -- an expert in behavioral genetics and the law, who has previously appeared in these pages (second photo) -- rightly points out, finding the cause for a behavior does not excuse a crime. But it could influence sentencing. [FN1]
Another possibility for DNA test applications is measuring life span, to determine awards in civil cases:
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 life span at all?"If it's for compensation, then yes, that means you'd want to fine-tune it to the details of the individual and their personal life expectancy," Hoffmann said. "But if damages are about deterrence, then that says you don't get off the hook just because you were lucky enough to hit someone who had a short life expectancy."
It's all speculative for now, as these tests are still in their early stages and not yet at the level of admissibility. But when they get to that point, there will be some interesting new possibilities and challenges for legal application.
[FN1] Earlier this month, Professor Farahany wrote an extremely interesting opinion piece for the Washington Post , imagining a world in which "police officers can read the minds of potential criminals and arrest them before they commit any crimes." It's not as far-fetched as it might sound: "various government agencies are funding the development of technology to detect brain activity remotely and are hoping to eventually decode what someone is thinking."
DNA Tests Offer Deeper Examination Of Accused [Washington Post]
The Government Is Trying to Wrap Its Mind Around Yours [Washington Post]
(19) Comments
boring
interesting
Kash,
Do you date former BigLaw litigators turned federal clerks??
You forget to footnote your footnote. Footnote 1A should read, "Minority Report was just a movie and Tom Cruise is bats##& crazy. Just because they made a movie about pre-crime does not mean that it would ever happen."
only stupid people will buy into the theory that genes can be blamed for everything.
Farahany= craziest crim law prof ever..
agree with 9:35, and would add that Minority Report was also a novel
good article kash
Finally, an interesting post to break up the long litany of trashy, boring and tacky posts - and no one comments on it. This goes to show that the vast majority of people reading this board have no substance at all and are no more than base money grubbers obsessed with materialism and reality-show pop-culture spectacles.
this sound totally like Tom Cruise's movie Minority Report now...
Best article in a long time. But imagine having a geriatric judge trying to evaluate the degree of "genetic predisposition" whilst struggling to remember the sentencing guidelines...
How is "my client is genetically predisposed to violence" a defense? "My client can't help but constantly be violent, and it's genetic so there's no chance of rehabilitation... so we should let him go"?
P.S. Minority Report was a short story, not a novel.
Best story in a long time. The apparent lack of interest in it just goes to show that this place has gone (or, at very least, is quickly going) the way of XOXO. Way to ruin a good thing, Lat. Here's an idea: since Kash is apparently capable of writing intelligent and interesting posts, maybe she could go revive UTR for those of us still pissed that something so quality was replaced by something so trashy as ATL.
ps: The VS bra story from earlier was also really good. Kash really is the better writer on this blog.
"Could genetic predisposition towards violence one day be a possible defense by excuse?"
I would think it's just one more circumstantial piece of evidence of guilt instead.
"imagining a world in which "police officers can read the minds of potential criminals . ."
Well, if we get to that stage, I'm quite certain that any predisposition would be addressed by gov't/authorities instead of having cops all of a sudden being able to arrest people walking down the street.
If science can conclusively determine someone is predisposed to violence, shouldn't that lead to a sentence enhancement and not a defense?
I mean, unless if by that point we can alter someone's DNA to remove the predisposition, in which case it could be a defense if you took the cure. It would be like temporary insanity or involuntary intoxication.
2:19-- that's a very interesting point. thanks for the food for thought!
10:17 - Correct.
Also, Kash or Lat: one of you should really post a better picture of Prof. Farahany. She is wicked hot.
2:19 -- No. Proof of genetic makeup of any kind, including a predisposition to violence, should not be used to increase sentencing.
Either you have never heard of Actus Reus or you have forgotten it (or you are a stone cold idiot, apossibility that I will not explore here).
People may not be punished for things that they have not done. This is axiomatic. Thus, sentences should not be enhanced based on proof of a genetic disposition to violence alone, simply becasue it is not an act.
But what about the "future dangerousness" aggravating factor? Future Dangerousness, as far as I know is based on prior actions or diagnoses (such as sociopathic tendencies) that arise from prior actions.