Future Challenges Over Use of Legal DNA Tests

According to Karen Rothenberg, dean of the University of Maryland School of Law, America’s “love affair with DNA” could prove to have complex effects on legal cases in the future.

Speaking at the University of Hawaii William S. Richardson School of Law, Rothenberg spoke of how DNA tests have revolutionized paternity and criminal cases — identifying biological fathers and exonerating innocent people accused of crimes, with tests providing “virtually conclusive evidence of identification”.

However, she also went on to say that judges would now face a new set of challenges in whether to allow genetic results used for the purpose of predicting diseases, to influence decisions related to damages and liability. “Will they be able to differentiate between using compelling DNA for identification or using it for prediction and other purposes?”

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

Rothenberg 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 and has been at the forefront of discussions addressing the complexities of using genetic tests for decision-making in court cases in articles and legal education talks.

She has argued that in the future, DNA could be used to mount a defense on the grounds that the accused had a predisposition for schizophrenia with no intent to commit a crime, or, on the other side, a prosecutor might argue that a future disposition to dangerousness should warrant a tougher sentence, or refusal of bail.

In a controlled test, her school surveyed the State of Maryland and several federal trial judges. Judges were questioned on various hypothetical cases relating to genetic testing for schizophrenia in a trial.

She urged judges to use caution when using genetic information because 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.”

Rothenberg was insistent on the point that the use of tests “have implications beyond the result. With genetics it isn’t just you; it’s the whole family, blood relatives as well.”

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