Judicature Genes and Justice
The Growing Impact of the New Genetics on the Courts
November-December 1999 Vol 83(3)
by Shirley S. Abrahamson
In the July-August 1998 issue of Judicature, U.S. Supreme Court Justice Stephen Breyer writes about the interdependence of science and law. He notes that "law itself increasingly needs access to sound science" and that scientifically complex technology "increasingly underlies legal issues of importance to all of us." Justice Breyer reminds us that "a judge is not a scientist and a courtroom is not a scientific laboratory" but that "to do our legal job properly we [need] to develop an informed, though necessarily approximate, understanding of the state of ...relevant scientific art."
This issue of Judicature addresses the interdependence of the fields of genetics and law and relations between the legal and the scientific communities. Over the last decade we have witnessed amazing scientific advances in genetic information, and more is yet to come. As the Human Genome Project now nears completion, we are only beginning to assess the impact that advances in human genetics will have on the legal system and on society.
DNA technology is becoming increasingly integrated into our judicial system, especially in the criminal justice system. DNA analysis has proved to be a powerful tool to identify perpetrators and to exonerate the innocent. The assimilation of DNA technology into criminal trials comes just as the role of the judiciary as gatekeeper in assessing scientific evidence is changing.
The use of DNA technology to match a crime scene profile to a suspect profile has presented one set of issues. The potential use of DNA information as a predictor of or explanation for behavior will create a new, more complex set of concerns. Databanks of genetic material will raise weighty questions of ownership, access, confidentiality and privacy beyond the questions suggested in the context of criminal DNA databases.
While criminal courts will find themselves addressing the expanded role of forensic genetics, civil courts will also struggle with increasingly difficult problems raised by genetic information. For example, gene mapping is producing unprecedented insight into the causes of disease. Decisions about what constitutes "having" a particular disease as compared with being "predisposed" to contracting a disease may have a significant impact on insurance, medical malpractice, product liability, and other health and employment issues that come before the courts.
This issue of Judicature discusses some impacts these enormous scientific advances will have on our legal system and on society. It is said that biotechnology, including genetics, will be to the 21st century what computer technology was to the 20th. Thus the approach the legal system takes to integrate genetic information is critical. We must, as Justice Breyer writes, "build legal foundations that are sound in science, as well as in law ...to resolve many of the most important human problems of our time."
All of us are indebted to the American Judicature Society and Judicature for the publication of these articles considering these important issues.
Shirley S. Abrahamson is Chief Justice of the Wisconsin Supreme Court and chair of the National Commission on the Future of DNA Evidence.
|The online presentation of this publication is a special feature of the Human Genome Project Information Web site.|