Conferences & Symposia

Judging Genes: Implications of the Second Generation of Genetic Tests in the Courtroom




"Second generation" genetic tests -- i.e., health and behavior-related genetic tests -- are starting to be introduced into the courts in civil cases, primarily tort litigation, as well as criminal cases, and pose some unique challenges for the judiciary. A recent roundtable at the School of Law explored the range of legal and policy tensions that will arise as these tests become more commonplace in resolving legal disputes.

During the last two decades, the use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. These tests might be referred to as the "first generation" of genetic tests in the courtroom. On the horizon are new challenges for judges posed by the second generation of genetic tests in court proceedings, i.e., tests to confirm or predict genetic diseases, traits and behavioral conditions. These tests will likely be introduced in many more judicial contexts including decisions regarding culpability, sentencing, liability, causation and damages. In most of these cases, judges will be asked whether to admit or compel the genetic test. In each context in which there is a request that a genetic test be introduced as evidence, a variety of unique policy and legal issues are raised. In some contexts, the use of the tests stretches the doctrinal rules and illuminates theoretical tensions underlying the doctrine. In others, the use of the tests in the courtroom and the collateral consequences of their widespread use for legal purposes raise unique public policy issues regarding responsibility, privacy and justice.

This roundtable was jointly sponsored by the National Human Genome Research Institute, Office of the Director, and the University of Maryland School of Law, to explore the range of issues raised by these second generation genetic tests. For each area of the law explored, a series of hypothetical cases was presented, followed by remarks from experts in law and/or the relevant scientific issues.

A survey of state and federal trial court judges in Maryland provided a backdrop for the workshop. The survey results were reported in an article by Karen Rothenberg and Diane Hoffmann published in Science.

Agenda

Part One: Criminal Cases

Panel I (Questions and Hypotheticals) (view discussion)
Discussion of hypotheticals on whether to 1) admit a genetic test to show (lack of) mens rea or to prove or disprove insanity or 2) compel a health related test to assist in identifying the perpetrator of a crime (potential issues for discussion: relevance, character evidence, value of genetic test (i.e., scientific issues) 4th and 5th Amendment and Due Process issues)

Panelists:
Judge Andre Davis
U.S. District Court for the District of Maryland

Francis McMahon, M.D.
Chief, Genetic Basis of Mood & Anxiety Disorders Unit
NIMH


Prof. Nita Farahany, M.A., A.L.M., Ph.D., J.D.
Assistant Professor of Law
Vanderbilt University Law School


Andrew D. Levy, J.D.
Partner, Brown, Goldstein & Levy
Adjunct Professor, University of Maryland School of Law

Panel II (Questions and Hypotheticals) (view discussion)
Discussion of hypotheticals on whether to compel or admit a health or behavior related genetic test in a parole hearing or sentencing determination to show proclivity for future dangerousness/sexual predation (potential issues for discussion: privacy, free will, genetic determinism, predictive ability of genetic tests)

Panelists:
Judge Barbara Rothstein
Director
Federal Judicial Center


Prof. Richard Boldt, J.D.
Professor of Law
University of Maryland School of Law


Prof. Chris Slobogin, J.D., LL.M.
Stephen C. O'Connell Chair, Professor of Law
Affiliate Professor of Psychiatry
Associate Director, Center on Children and the Law
University of Florida Fredric G. Levin College of Law


Dr. Jeffrey Botkin, M.D., M.P.H.
Professor of Pediatrics
University of Utah School of Medicine


Dr. Markus Heilig, M.D., Ph.D.
Clinical Director
National Institute on Alcohol Abuse and Alcoholism



Part Two: Civil Cases

Panel III (Questions and Hypotheticals) (view discussion)

Discussion of hypotheticals in which health related genetic tests are used to prove or disprove causation or to increase or decrease damages in tort cases (potential issues for discussion: Rule 35, alternative causes, multiple causes, impact on damages)

Panelists:
Judge Thomas Moyer
Chief Justice
The Supreme Court of Ohio


Prof. Susan Poulter, J.D., Ph.D.
Professor Emerita of Law
S. J. Quinney College of Law, University of Utah


Dr. Brian Schwartz, M.D., M.S.
Dept. of Environmental Health Sciences Faculty, Faculty Research
Johns Hopkins Bloomberg School of Public Health


Prof. Mark Rothstein, J.D.
Herbert F. Boehl Chair of Law and Medicine
Director of the Institute for Bioethics, Health Policy and Law
University of Louisville



Panel IV (Questions and Hypotheticals) (view discussion)
Discussion of broader implications of use of genetic tests in the courtroom (e.g., impact on willingness of patients to be tested in clinical setting or participate in research, acceptability of use of genetic tests in other contexts)

Panelists:
Prof. Sheila Jasanoff, J.D., Ph.D.
Pforzheimer Professor of Science and Technology Studies
Kennedy School of Government, Harvard University


Judge Robert Bell
Chief Judge
Maryland Court of Appeals


Prof. Anita Allen, J.D., Ph.D.
Henry R. Silverman Professor of Law and Professor of Philosophy
University of Pennsylvania


Dr. Mark Frankel, Ph.D.
Director, Scientific Freedom, Responsibility & Law Program
AAAS



Generous support for this roundtable has been provided by the Judge Martin B. Greenfeld Fund and the Dr. Richard H. Heller Fund.


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Copyright © 2014, University of Maryland Francis King Carey School of Law. All Rights Reserved