Challenges loom with use of DNA tests, dean says


POSTED: Monday, April 06, 2009

An American “;love affair with DNA”; could lead to complex issues in court cases, says Karen Rothenberg, dean of the University of Maryland School of Law.

Interviewed during a recent visit to the University of Hawaii William S. Richardson School of Law, she said DNA tests have revolutionized paternity and criminal cases — identifying biological fathers and innocent people accused of crimes. The tests provide virtually conclusive evidence of identification, she said.

However, she said judges face new challenges in whether to admit or compel genetic tests for other purposes, such as to confirm or predict genetic diseases and decisions regarding sentencing, liability or damages.

“;Will they be able to differentiate between using or compelling DNA for identification or using it for prediction and other purposes?”;

Rothenberg calls it “;the second generation of genetic tests.”;

Described as a “;trailblazer,”; she is the first woman to serve as the chief executive and academic officer of the University of Maryland School of Law in its 185-year history. She is founding director of the school's Law and Health Care Program.

She has addressed the complexities of using genetic tests for decision-making in court cases in articles and legal education talks.

For example, DNA could be used to mount a defense, to say the defendant had a predisposition for schizophrenia with no intent to commit a crime, she said. Or a prosecutor might want to compel a test to predict a person's future dangerousness and to argue for a stiffer sentence, she said.

Her school surveyed Maryland state and federal trial judges four years ago about whether they would admit or compel a genetic test in various hypothetical cases, she said.

As a sample of the results, the judges were divided on whether they would admit a positive test for schizophrenia in a criminal case to determine criminal intent, citing concerns about how a jury would view the test result, she said.

But a majority of judges in civil cases for tort liability said they would compel a test to establish that the defendant's mental predilection — and not negligence — was the cause of the plaintiff's injury, she said.

In a paper discussing “;When Should Judges Admit or Compel Genetic Tests?”; in Science Magazine on Oct. 14, 2005, Rothenberg and Diane Hoffmann of the Maryland law school urged judges to be cautious in using genetic information.

Besides concerns raised by judges in the survey about relevancy and understanding of genetic tests by jurors, they pointed out the tests “;have impacts that are distinct from genetic tests used only for purposes of identity.”;

“;Many genetic tests for health and behavioral traits have the potential to predict diseases and conditions that have no prospect of treatment or cure, as well as the ability to affect both family members and individuals,”; they wrote.

“;When someone makes a decision to do genetics, it should be part of informed consent to say it could be used in a court case,”; Rothenberg said.

The pros and cons were aired in focus groups around Maryland to get people thinking about genetic tests after the judges were surveyed.

It is not just a simple test, she stressed: “;It has implications beyond the result. With genetics it isn't just you; it's the whole family, blood relatives as well.”;