Newletter Masthead
September 2000· Vol. 25, No. 3, pp. 4-6

"What does DNA stand for, Daddy?"

Or, What does the law do when science changes?

Thomas G. Gutheil MD, President

One of the many reasons I enjoy science fiction is its apparent predictive power, coupled with its capacity to force examination of ethical and philosophical issues before they actually appear on the scene. Gattaca , for example, looked at designer genetics issues years before supermodel eggs were being sold on the Internet. The same story has a character identified during a murder investigation through a single fallen eyelash. This last detail is part of my point here.

An even greater number of years ago I read another science fiction story set in the distant future. In the story law enforcement scientists used special instruments to "read" the scene of the crime, an approach based on the idea that every sound or spoken word that occurs in a room, and any movement, creates disturbances in the air that "imprint" on the material of the walls. Thus, sufficiently sensitive instruments could decode these laminar patterns and find the layer corresponding to the time of the crime, obtaining a record of what actually happened.

In the story, one of the characters muses philosophically on how relentless is the fate faced by the criminal, when the very walls can cry out against the sinner, as it were. Now, I neither know nor care whether such techniques are even theoretically possible. My point in this column is that - in one particular sense, and through one particular technique - we have arrived at a facet of this future. The technique, you will have guessed, is DNA testing in crime investigation.

No one knowledgeable in this area pretends that DNA testing is infallible; it provides an extremely high probability of correct identification, not certainty. Errors can still be made. And, of course, the ability to prove, with high probability through a DNA residue, that someone was present at a crime scene does not prove that person actually committed the crime in question. But the level of accuracy, and therefore specificity, is so far above that of other incriminating devices in current use, such as eyewitness identification, as to constitute another level of discourse.

Law enforcement and privacy

This very success raises profound questions about the future of law enforcement and individual privacy; my meditation for this column is to speculate on how the issues might play out, as part of a general rumination about changing science and law. What are the social consequences of a near-perfect method? If DNA testing is so valid, should every case, or even every serious case such as rape or capital murder, be required to demonstrate probable guilt through that method? (As a digression, note the parallel issue of "Should every medical patient get an MRI scan?")

Following our science fictional colleagues, let us push the speculative envelope a bit, starting from what is already true. Rumor has it that sex offenders in Britain already have to give buccal swabs as a condition of parole, thus providing a ready source of DNA identification in case of recidivism or to aid in unsolved crimes. All over this and other countries are refrigerators and freezers jammed with physical evidence samples from unsolved crimes whose DNA content could be analyzed and used for incrimination. During a suitably conservative political climate, a politician could propose that buccal swabs - a fairly non-invasive procedure, in physical terms at least, compared to, say, a blood drawing - could be done on all criminals as routinely as we now do fingerprints. The next step, of course, is buccal swabs from everyone at birth - but that, of course, has already been anticipated by science fiction, namely "The X-Files." (The idea there was that supposed routine smallpox vaccinations were actually covert government DNA samplings.)

In fact, we need not merely speculate about possible impacts of future evolving science: we have a provocative example in the present, in the form of the day-care center sexual abuse cases, in which groups of children reveal progressively more outlandish claims of abuse. Since their inception, the science behind those cases has changed in several ways: knowledge about the fallibility of child interviewing techniques, about group influences, about mass hysteria and about the paucity of any hard data on the reality of widespread, intergenerational satanic ritual abuse. Psychiatric expert witnesses, testifying as to standards of care for treaters in such cases, face the dilemmas posed by this change in the science; in practice they are forced to adjust the standard of care for recovered memory cases involving satanic abuse according to when the treatment occurred. The standards for 1989 differ profoundly from those of 1995, a few short years later.

Science and law - rates of change

Despite this relatively fast change in the science and - perhaps more importantly, the attitude toward the science - the legal system cannot adjust as fast. Indeed, as a general principle, experts can relatively promptly modify their testimony, as new scientific evidence requires altering the bases for expert reasoning. A newly published peer-reviewed paper can be translated into opinion almost immediately, while the law - which is traditionally described as ten years behind the medicine or science of a given era - usually cannot. The principle of stare decisis - "let the decisions stand" - is deeply ingrained in the law. While the science underlying a particular day-care center abuse conviction may be demonstrated by current understanding to be bogus, the convicted abusers do not spring gladsome from their prison cells. The legal case may remain in the status quo (and the prisoner remain a prisoner), whatever the change in the scientific substrate of trial testimony.

There are many reasons for this beyond the principle of stare decisis : no prosecutor wants a hard-won conviction quickly overturned; no legal system wants its laborious, painstaking due process and reliance on jury decisions tossed aside by some short cut, no matter how scientifically sound. Thus, we can imagine DNA evidence and evidence gathering to face similar resistance.

The second dimension of the issue involves one of the hottest issues facing society to date: privacy of personal information. At a friend's suggestion, I searched my own name under Yahoo and found, among other data, notations of long-forgotten lectures I had given decades ago -- a chilling and probably prophetic experience of information obtained without my knowledge, much less consent. What actual form will the arguments take against taking buccal swabs from everyone at birth, a radical idea that is nevertheless a mere extension of the present British approach to offenders? How far can our enthusiasm for law enforcement and crime prevention take us? As the grand-daddy of all dystopian science fiction, 1984 , revealed to us, the end point of total crime prevention is fascism: telescreens peer into every home. It remains to be seen how close our own society will approach that one through use of the Internet to gather and map data about our demographics and shopping patterns.

To return to my title: because of its incredibly high specificity, DNA could plausibly stand for "Do Not Argue." The science may have advanced to a point where DNA matches are relatively inarguable. But what is our adversarial legal system to do without argument? What are the implications for the human fallibility that is deliberately built into the constitutional mandate to have decisions made by a "jury of one's peers"?

Future columns may elaborate on these issues; meanwhile, responses from the membership are welcome.

(The author acknowledges helpful comments from Richard Sobel PhD.)