DNA Fingerprinting and Criminal Law

Jennnifer Wagner at the Genomics Law Report includes a great post focused on this week’s oral argument at SCOTUS regarding DNA fingerprinting. Science keeps pushing the law. Set out below is one excerpt from the post – it goes to a key topic: how does law cope with the exponential pace of scientific change?


"Key Question #5: Must this case be decided on the facts of today or the possibilities of tomorrow?

During oral arguments Justice Kagan explored a scenario 10 years in the future wherein a DNA fingerprint may be entered into a computer system and results are reported as quickly as current arrest booking procedures, providing immediate information of name, criminal record and links to unsolved cases. During the Petitioner’s rebuttal period, Chief Justice Roberts questioned, “How can I base a decision today on what you tell me is going to happen in two years?” Justice Scalia explained, “You [the Petitioner] can’t demonstrate the purpose [of DNA fingerprinting] is identity now.” Ultimately both sides have asked the Court to look beyond the present realities and consider future possibilities. For example, the Petitioner explained DNA fingerprinting takes an estimated 11-17 days presently, but projected that same-day results are a short 18-24 months away. And while the markers in the CODIS profile are not presently informative for biomedical conditions, the Respondent urges consideration of the potential information that might be discovered from CODIS markers in the future, pointing to the ENCODE project."


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Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”


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