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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 220
December 24, 2005

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Behavioural genetics and law

Sheikh Hafizur Rahman Karzon

Inquisitiveness of human being to know the mysteries of human physiology has lead to the tremendous development of genetic science. Scientists predict that 21st century will be the century of biological science. The outcome of Human Genome Project has largely uncovered the mysteries of our genetic code providing remarkable new insight into the unique human characteristics, which operates at the molecular level. Discoveries in genetics will touch every sphere of human life. New discoveries will impact legal doctrines related to privacy, free will, responsibility, autonomy, non-discrimination and societal opportunities. Judges, lawyers legislators, researchers, human rights activists -- all the people of different countries related to law and associated with justice system should be ready to encounter the future challenges ensuing from genetic development. Ongoing research on genetics and its findings brought many questions before us, in particular it has major bearing on criminal behaviour and criminal justice system. How will law respond to new discoveries in genetics? To what extent the relation between genetics and behaviour affect legal doctrines related to privacy, autonomy, non-discrimination and societal opportunities? What will happen to the concepts of individual responsibility and free will? If any individual commits crime due to genetically inherited traits, how his/her responsibility will be determined? How she/he will be punished? Should s/he be punished or should they be treated like insane persons without having any criminal responsibility?

Scientific and popular focus on genes and behaviour are increasing which have ignited the resurgence of behavioural genetic determinism. The core concept of genetic determinism is that it is the major determining factor of human behaviour. This has grave social, legal and ethical consequences. Mark A. Rothstein, Professor and Director of the Health Law and Policy Institute at the University of Houston Law Centre, has discussed the effects of genetics on many areas of law, including employment, insurance, commercial transactions, civil litigation and privacy. He has discussed five general principles of law that help frame the issues of behavioural genetics and law.

Unitary Standard of Legal Duty
The lawfulness of an individual's conduct is determined with reference to the standard behaviour of a reasonable person both in civil and criminal cases. The activities of plaintiff and defendant are evaluated in terms of whether that conforms to the standard of a reasonably prudent person under similar circumstances. Whether a person of average rationality could have done the same thing that is testified with the help of unitary 'reasonable person' standard. Originally it was 'reasonable man' standard and it was first applied to negligence law in England in the middle of the nineteenth century. Very soon the legal system of United States adopted the concept. The gender-neutral "reasonable person" came into use by the beginning of the twentieth century. In reasonable person standard the required conduct of the individual and the outcomes of cases are more predictable. This unitary and objective standard allows individuals to have reasonable expectations of the behaviour of others.

In criminal law criminal negligence is defined with reference to a reasonable person.

A murder may be committed in a moment of passion. Reasonable person standard, then, will be applied to determine whether a moment of passion can cause a murder. If so, the charge of murder is reduced to voluntary manslaughter.

The precise cognitive, physical, or behavioural abilities of the individuals in any given legal proceeding is impossible to determine. It is inherent in the application of the reasonable person standard. In spite of this established legal principle, if precise evaluation of individual's characteristics were possible. If in a civil or criminal proceeding an expert witness on behavioural genetics were prepared to testify about inherent capability of a specific individual. Would this matter? Should it? According to Dan Brock, a philosopher, "If a person's genetic structure is a principal cause of behaviour and that genetic structure is completely beyond the individual's control, can an individual justifiably be held responsible for the resultant behaviour?" A significant change in the law's view of the bounds of individual conduct would be made, if the unitary standard were replaced with a more subjective standard.

Impact of behavioural genetics on adversary system
Adversary system is characterised by partisan presentation of the evidence, a passive judge, a neutral jury and a structured trial format. Under this system the truth is not determined by the lawyers, but by the judge or jury. Lawyers' role is to be zealous advocacy on behalf of their clients. Presentation of exact evidence and cross-examination of witnesses finally uncover the truth. The advocates of both sides put forward all possible arguments on behalf of their clients. Professional ethics require the lawyers to be zealous advocates. Lawyer is not there to promote the cause of the client, s/he should utilise the legal procedure for the fullest benefit of the client. Lawyers are expected to give every possible argument, no matter how weak it may be, in favour of their client, particularly in criminal cases. Defendants are given even wider leeway in submitting mitigating evidence during sentencing phase of a criminal case. "Zealous advocacy" principle in criminal cases put forward innovative scientific assertions. In 12 US cases mothers were accused of murdering their infants and post-partum psychosis was argued as defence. The women received light sentences or were found not guilty because of insanity in most of the cases, although it is not clear what weight, if any, was given to the defence. Post traumatic stress syndrome and premenstrual syndrome were also argued as defence. Sometimes in some notorious killings because of innovative scientific assertions the convicted got lesser sentence which raised severe criticism.

In civil cases, such as personal injury litigation, plaintiffs encounter difficult time as they cannot prove whether the injury was caused by the unlawful act of the defendant. Because of innovative scientific discoveries "junk science" or "liability science" has emerged. Scientific experts have pushed the frontiers of scientific thinking in favour of defendants. They assert, for instance, that a particular environmental exposure, pharmaceutical product, or medical device resulted in a particular injury to the plaitiff. "Because of the adversary system, it is virtually certain that parties in both criminal and civil cases will assert behavioural genetic arguments well before there is general support for such views in the scientific community. These arguments are particularly appealing in criminal cases because they can be used to prove that defendant was compelled to commit the act by uncontrollable genetic factors."

Challenges for the Judges
Adversary system encourages lawyer's zealous advocacy, which further encourages the lawyers to utilise unproven scientific theories in their clients' favour. The next important question is how will judges [and juries] consider this evidence. From the available data it is clear that both judges [and juries] are ill-prepared to evaluate the validity of novel scientific assertions. And the juries have a tendency to give much credence to arguments based on novel scientific discoveries. Regarding scientific evidence the initial problem is faced by the lawyers as they have to persuade the court to view the evidence as admissible. This question was once settled in US in 1923 in Frye V. United States. In this influential case the court held that scientific evidence is admissible if it is generally accepted as valid by the scientific community. The Frye-test lasted for 70 years, until it was replaced in 1993 by a Supreme Court decision in Daubert V. Merrell Dow Pharmaceuticals, Inc. The court held that Frye principle was inconsistent with Federal Rules of Evidence. Under the Federal Rules, judges cannot defer to the scientific community's acceptance of the evidence in question. To determine the reliability and probative value of the evidence judges are needed to make an independent judgement. Judges must determine "whether the reasoning or methodology underlying the testimony is scientifically valid." This is composed of four factors: (1) whether the theory or techniques can be or have been tested; (2) the extent to which there has been peer review and publication of the theory or techniques; (3) the known or potential error rate and the existence and maintenance of standards controlling the technique's operation; and (4) the general acceptance of the methodology or technique in the scientific community."

In spite of disagreement among judges and scholars, Daubert principle, at least in theory, made it easier to get scientific evidence admissible into court. But for trial court judges undoubtedly Daubert made things more difficult. State and federal court administrators have started programmes of scientific education and publication of manuals on scientific evidence to increase the scientific acumen of judges.

Lawyers under the adversary system require to introduce insufficiently tested scientific evidence. Judges, who do not have scientific expertise, must decide whether methodology and theories have a valid scientific basis. Courts are increasingly admitting novel scientific evidence and juries often give great credence to scientific evidence. Behavioural genetic information certainly fit this pattern

Concluding part of the story will be published on the issue of December31,2005.

The author is Assistant Professor, Department of Law, University of Dhaka.


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