Questionable Justice: Genetics and the Legal System

The Innocence Project (http://www.innocenceproject.org/) is a non-profit legal organization in the U.S. founded in 1992 by Barry Scheck and Peter Neufeld as part of the Benjamin N. Cardozo School of Law of Yeshiva University. The organization was inspired by the United States Department of Justice and the United States Senate’s study that examined eyewitness identification in crimes. Their research found that eyewitness misidentification attributes to approximately 70% of wrongful convictions (http://www.exonerate.org/facts/causes-of-wrongful-convictions/mistaken-eyewitness-identifications/). The Innocence Project is a member of the Innocence Network, a group comprised of  innocence organizations from across the nation. It aims to reform criminal justice systems to prevent illegitimate convictions caused by eyewitness misidentification, false confessions, and government misconduct. Furthermore, they exonerate wrongly convicted individuals through the use DNA testing.

The efforts of the Innocence Project to establish the innocence of people wrongly accused of crimes reflects a dependence on science as a deliverer of justice. Sheila Jasanoff’s article “Just Evidence: The Limits of Science in the Legal Process” and Barry Steinhardt’s chapter “Privacy and Forensic DNA Data Banks” both raise concerns about role of science in the legal system, arguing that there is a fundamental incongruity between scientific fact and legal evidence social beliefs mold the latter. Jasanoff’s work disputes the common belief that “science can deliver fail-safe, and therefore just, legal outcomes where the law, acting on its own, might fall short” (pg. 328). The use of scientific data in legal contexts rests on the belief that science stands as incontestable truth, as science denotes the systematic study of the workings of nature. Scientists pursue scientific knowledge from a skeptical and objective standpoint in an attempt to construct an unbiased and accurate understanding of the world. It is this objectivity differentiates science and law; the legal system represents a construct aimed at determining innocence and guilt in a social context. Research contexts necessarily influence scientific conclusions; thus, “what counts as true for the law need not count as true for science” (pg. 333). Whereas laboratory science hinges on replication, science the legal system is rarely subject to parallel scrutiny and mistrust. Instead, financial costs and time constraints motivate legal institutions to accept facts that science might otherwise regard as premature.  Furthermore, will science itself may hold truth, humans still have a role in the production and interpretation of the evidence; hence, the issue becomes “whether society is capable of generating DNA evidence that is free from bias and error” (pg. 332). Human beings’ tendency to overlook details even with proper scientific knowledge can additionally lead to mistakes, as exemplified through the Challenger shuttle explosion. Moreover, litigation decisions depend a large degree on the lawyers’ abilities to convince the jury about the severity of the crime and the validity of evidence. The influence of framing effects has been well studied, and research has shown that the presentation of material can alter how people view a situations, such as portraying youth gangs as deviant young adults vs. victimized youth (see http://www.c3.ucla.edu/files/Super-Predators_or_Victims.pdf). These effects imply that the fallibility of science in the legal system lies in human interpretation of scientific data. A final potential pitfall in accepting forensic science as indisputable evidence rests in its reliance on DNA fingerprints as evidence into a suspect’s personality. Using genetic testing can cause legal officials to analyze suspects in light of their genes; this reductionist viewpoint ignores social and biological factors that may influence behavior and illustrates the hegemonic view that one’s DNA is one’s identity. The book Genetics and Criminality: The Potential Misuse of Scientific Information in Court delves deeper into this issue to examine the use of genetic information in the legal system and how it is subject to misuse (see http://www.apa.org/pubs/books/431728A.aspx).  In her conclusion, the author warns against relying genetic tests as fact when dealing with the law, since the social context transforms potential truth into questionable evidence. Skepticism is therefore necessary to address the flaws of forensic science.

“Privacy and Forensic DNA Data Banks” questions ethical issues that arise from the creation DNA data banks. The author is skeptical of genetic databases and argues that they enable the invasion of privacy and discrimination through the widespread availability of personal information. He makes this argument by alluding to various concerns such as function creep, lack of privacy protection, a history of eugenics, and genetic reductionism. Function creep is the gradual extension of information (that was originally collected for a specific purpose) to be used for alternate purposes. State laws about DNA testing often neglect issues of privacy protection and informed consent by allowing for complete disclosure of genetic information.  Advances in technology and the acquisition of scientific information holds legal institution to new standards of privacy protection. Unfortunately, currently the government seems to fall short on its duty to guard personal genetic information. In addition, the emergence of DNA data banks ushers in a heightened threat of a modern eugenics movements. It enables insurance companies and employers to make judgments based on genetic makeup and DNA “defects.” Individuals with genetic mutations may consequential be treated not only as at-risk but as though they are sick or incapable. Future legal issues include the movement to genetically test not solely convicts but also arrestees. As Steinhardt says, this act “equates arrest with guilt;” as a result, arrestees no longer have the same assurance of innocent until proven guilty. Another troubling aspect of arrestee testing involves the possibility of racial profiling and sterotyping, as well as the wasting of money and resources on people who may be innocent. The author also expresses apprehension over suspect databases, which consist of DNA collected without any probable cause. These organizations also increase the chance of discrimination and targeting certain types of people as criminals. Finally, the retention of DNA samples heightens the chance that it will be misused. Forensic DNA databases teeter on the brink of violating constitutional rights of individuals forced to surrender their genetic information. It an attempt to alleviate these risks, Steinhardt proposes the following restrictions: 1. destroying DNA samples within a reasonable time frame; 2. limiting database entries to include only convicts of serious violent crimes; 3. banning non-consensual genetic testing on suspects unless it is court sanctioned; 4. making genetic testing available for criminal defendants who are allegedly innocent; 5. not taking samples from arrestees; 6. mandating explicit, voluntary consent; and 7. abolishing suspect databases.

The connection between social interests and their influences in scientific research and evidence is a key issue in debates around Monsanto and rBGH-safety. When the FDA approved Posilac for commercial use in 1994, Margret Miller and Suzanne Sechen, both former Monsanto employees, were the deputy director of the FDA’s Office of New animal drugs and the lead reviewer of scientific data on rBGH, respectively (http://www.lightparty.com/Health/HistoryOfMonsanto.html). Additionally, Monsanto-funded rBGH studies have generally denied negative outcomes from use of the synthetic hormone.

For example, Dale Bauman led a research project at Cornell University and claimed that the increase in mastitis in his study was not due to the use of rBGH, but to a higher presence of mastitis in the herd prior to treatment” (http://www.mindfully.org/GE/Monsanto-rBGH-Corporate-Agriculture.htm). The interplay of social interests and science is also characterized by the current controversy over labeling guidelines for rBGH products. For instance, “Michael Taylor, the FDA commissioner responsible for writing the labeling guidelines, had worked as a Monsanto lawyer for seven years before joining the FDA. . . . There are many more ties between Monsanto and the U.S. government today, including Supreme Court Justices, the FDA, and the Environmental Protection Agency” (http://www.sustainabletable.org/issues/rbgh/). In general, scientific reports and information available on genetically modified foods such as milk produced from rBGH-injected cows are largely dictated by institutions that hold stake in that product and have the power and money to influence what information is regarded as scientific truth. Companies like Monsanto further have the capacity to selectively present evidence (in the case of product labeling) to further their interests.