DNA, the Human Genome, and the Criminal Justice System

 By Donald E. Shelton, Circuit Judge  

The Human Genome Project started in 1990 as a 15-year plan to identify all of the approximate 100,000 genes in human DNA body and identify and categorize the 3 billion DNA sequences in those genes.  Three years ago when the Judge's Journal featured articles about the project, the government had updated its plan to project completion in the year 2003. (36 JUDGES' JOURNAL 3, Summer 1997, online at http://www.ornl.gov/TechResources/Human_Genome/publicat/judges/drell.html ). The next year the government revised its timetable again to keep up with rapid scientific progress.  In June of this year, President Clinton announced that the Human Genome Project had completed a draft "road map" of the DNA sequence in 90% of the genes in the human body.  The biotechnology  "future" we talked about less than 36 months ago has become the present.  As with other social and scientific developments, many of the promises and challenges of this new biotechnology will present themselves in our judicial system.

DNA is an extremely powerful law enforcement tool. It has convicted many persons accused of crimes. DNA may also be the most valuable tool we have for proving innocence as well and it has even caused the nation to rethink the death penalty. Obtaining a nationwide database of DNA "fingerprints" could revolutionize law enforcement identification. Every State now requires DNA samples from some convicted felons and at least 5 states compel DNA samples from all felons. Law enforcement authorities have embarked on federal and state programs to compel DNA samples from all arrestees as well.  The Combined DNA Index System (CODIS) is already underway and is designed to be a fully integrated local, state, and national law enforcement system of DNA records. And some are arguing for a national database that would even obtain and record the DNA of all newborns, immigrants and visitors to the United States.

However, unlike fingerprints, DNA contains much more information than mere identification by comparison. With the imminent completion of the Human Genome Project, we will have the beginning of a map that can be used to find out virtually every physical fact about a person from a DNA sample. The mass collection of such samples and the potential misuse of the information they contain is a real threat to personal privacy.  Should DNA information left at a crime scene be used to "profile" a group of suspects for police arrest or interrogation? On an almost bizarre level, some researchers think links to predispositions for certain types of antisocial or criminal activity may be found in the genes. The nature v. nurture debate is far from over, according to some. What if there is a common gene that is found among pedophiles, for example? Is that evidence obtainable by the police? Is it admissible?

These issues are being considered at several levels and some of them have reached the court system already. After reading a report on the number of exonerations from DNA testing, the Attorney General established the National Commission on the Future of DNA Evidence, which has already made a number of important findings and recommendations. The Commission research is already providing valuable information for the courts as well. Judges need to prepare ourselves to understand and deal with these issues in the criminal justice system. The collection of information here is a beginning point for those who have not begun that process as well as and update for those who have already faced such issues.     

Learn the basics of the Human Genome Project and DNA

The official Human Genome Project website of the Department of Energy at http://www.ornl.gov/hgmis/

D. Casey, What Can the New Gene Tests Tell Us? 36 JUDGES' JOURNAL 3 (Summer 1997) online at http://www.ornl.gov/TechResources/Human_Genome/publicat/judges/judge.html

D. Casey , Genes, Dreams, and Reality: The Promises and Risks of the New Genetics, 83 JUDICATURE 105 (November-December 1999) online at http://www.ornl.gov/hgmis/publicat/judicature/article3.html

K. Brinton and K. Lieberman,  Basics of DNA Fingerprinting, online at http://protist.biology.washington.edu/fingerprint/dnaintro.html

E. Lander, DNA on the Witness Stand, online at http://www.accessexcellence.org/AB/WYW/lander/lander_1.html

What Every Law Enforcement Officer Should Know About DNA Evidence,
National Commission on the Future of DNA Evidence, September 1999, online at http://www.ojp.usdoj.gov/nij/pubs-sum/000614.htm

Methods Used in Genetic Identity Testing, online at http://www.idnalab.com/methods.htm

General DNA Evidentiary Issues

D. Kaye and G. Sensabaugh, Jr., Reference Guide on DNA Evidence, online at http://www.law.asu.edu/kaye/pubs/dna/FJCDNA.htm ; and see Professor Kaye's other DNA publications listed at http://www.law.asu.edu/kaye/pubs/p_dna.htm

National Commission on the Future of DNA Evidence website at http://www.ojp.usdoj.gov/nij/dna/welcome.html  

J. Botkin, W. McMahon and L. Francis, Genetics and Criminality: The Potential Misuse of Scientific Information in Court, The American Psychological Association Press (1999).

 Postconviction DNA Testing

Landry v. Attorney General, 709 N.E.2d 1085 (Mass. 1999)

D. Kaye, Bioethics, Bench, and Bar: Selected Arguments in Landry v. Attorney General, 40 Jurimetrics: The Journal of Law, Science, and Technology 193 (2000); online at http://www.law.asu.edu/kaye/pubs/dna/landry-JJ00.htm

Postconviction DNA Testing: Recommendations for Handling Requests, National Commission on the Future of DNA Evidence, September 1999, online at http://www.ojp.usdoj.gov/nij/pubs-sum/177626.htm

Connors, E. et al, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, National Institute of Justice Report (1996), online at http://www.ojp.usdoj.gov/nij/for96.htm

Compelling Post Arrest DNA Samples

D. Kaye and E. Imwinkelried, Forensic DNA Typing: Selected Legal Issues - A Report to the Working Group on Legal Issues, National Commission
on the Future of DNA Evidence (draft February 2, 2000), online at http://www.law.asu.edu/kaye/pubs/dna/ncfdna-report2-000202.htm

Testimony of Barry Steinhardt, Associate Director, American Civil Liberties Union before the National Commission on the Future of DNA Evidence (March 1, 1999), online at http://www.aclu.org/library/ncfde.html

DNA Collection and Increased Funding for DNA Evidence Technology, International Association of Police Chiefs Resolution, online at http://www.theiacp.org/leg_policy/resolutions.htm#dnacoll