DNA in the Courtroom - Afterword


A Question of Justice

The prospects for ending the DNA War quickly are dim, unless the Simpson trial delivers a knockout blow to the critics. (Any decision in the case is guaranteed to be appealed, although a mistrial is a likely initial result.) The process of having an admissibility hearing for practically every case involving DNA ensures continuing contention. Standards are changing, but changing such hoary procedures is seldom either easy or quick, especially when entrenched interests find them lucrative.

The forensic use of DNA should be of special interest to women. Few commentators have identified it as such, but DNA testing is not just an ethical, legal, or public policy issue; it is also a women's issue. Ninety percent of the the victims of crimes involving DNA identification are committed against women. The tests are most useful in sex crimes, traditionally the toughest to solve and among the most under-reported. Only about half of the reported rapes result in arrests, and less than half of the men arrested are convicted. DNA has made it a lot harder for violent offenders to prey on women with impunity.

While the debate over DNA has taken some decidedly nasty turns lately, it helps to remember that there were controversial elements about DNA testing from the beginning. Civil libertarians feared abuses and voiced concerns over violations of privacy and due process.

We can also better understand the future of DNA fingerprinting by recalling the history of digital fingerprinting. A similar debate, with identical questions took place a century ago. Could more than one person have the same print? Would investigators take care in gathering the evidence? Could they fake the evidence? Now as then, as Daniel Koshland, the editor of Science, has observed, "caution is appropriate; unreasonable doubt is not."

The DNA revolution has brought into sharp focus how hard it is for the judicial system to evaluate and incorporate new scientific technologies. Its vulnerability to pseudo experts is exposed. Such controversies over DNA as do exist speak more to the nature of our legal system and the politics and economics of the scientific community than to the soundness of the technology, the state of the art and science.

Perhaps the recent United States Supreme Court's Daubert decision, which encourages judges to exercise greater latitude in evaluating new scientific evidence, will help to resolve the remaining admissibility questions. Appellate decisions affirming DNA testing and legislated admissibility are two other means of resolution.

Ultimately, complete acceptance of current and meritorious new DNA methodologies is inevitable, as these analytical tools will simply become even more powerful than they are today. In the meantime, we should not defer the use of such a tool for justice while we wait for the perfect solution to all questions that it raises. We must not forego good way of interpreting the results of DNA test- ing because there is still (and probably always will be) debate over the best way to interpret them.

Justice deferred is justice denied, and DNA has a lot to do with justice: for thousands of victims of assault, murder, and rape and their families; for the 1000 men, mistakenly accused and exonerated annually by DNA; for the approximately 3,500 criminals convicted every year, in part, by DNA evidence; and finally, justice for a nation whose citizens are safer because DNA is a powerful weapon against violence.



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