This issue of The Judges' Journal is dedicated to a future rapidly taking form, a future in which controversies of every sort will be debated in terms of diseases, disease carriers, predispositions, and susceptibilities. Genetic tests, scientists predict, will be customized to detect thousands of these characteristics and states at the molecular level. This issue of The Judges' Journal thus serves as an invitation to consider that future, to get ready for challenges in the courtroom that could prove both disturbing and exhilarating. Unanswered legal and social questions will abound, some of which can be articulated today. For example, who owns genetic information? Are genetic proofs of diminished moral capacity admissible in capital crimes trials --at both the liability and the penalty phase proceedings? What will happen to concepts of free will and responsibility in an era of genetic causation?
In the near future, genetic tests will be offered in evidence in virtually any courtroom. In criminal cases, genetic identification is now a commonplace technology. Genetic proofs routinely are offered in paternity actions, and genetic tests will soon flood the courtroom with evidence purporting to support medical and nonmedical cases alike. All have ethical and social implications. Is a predisposition for colon cancer, for example, a legally justified reason to bar a person from mortgage insurance? Should predictive diagnostic information derived from genetic tests be suppressed in the absence of measures to prevent or cure? Will genetic causation be overdetermined in both concept and evidence?
In turning judicial attention to some of these ripening issues, we are spurred by the velocity of genetic research and the vigorous activity to turn it into commercial products. Genetic tests are big business and are largely unregulated. Genetic counseling is an irregular calling just taking form as a profession. A 1996 New Jersey case, Safer v. Estate of Peck, 291 N.J. Super. 619, 677 A.2d 1188, questions the availability of a cause of action based on genetically transmittable disease. Is there a duty to warn, the case asks, when a physician detects a genetically transmitted disease such as colon cancer? Conflicts of law surface immediately. What happens to the established privileges governing the patient-physician relationship? New conflicts come into view. Will the availability of gene therapy provide early in the new millennium many new cases of first impression that integrate scientific, clinical, legal, and ethical perspectives?
These concerns flow from an extraordinary promise --the Human Genome Project's 2005 objective to map and sequence every one of a human being's estimated seventy thousand genes. Hardly a day goes by without notification of a new gene discovery in the popular press. Sometimes these discoveries are valid and durable. The discovery of a gene family that suppresses tumor growth, for example, may presage new cancer therapies. Other discoveries remain to be replicated. A gene associated with "anxiety," for example, was announced a year ago and failed of replication. Pressure for gene therapy mounts as biological technologies promise means for altering our genes and those of unborn generations. The social and ethical issues that are being raised transcend those of the law.
Supported by a grant from the Human Genome Project at the U.S. Department of Energy, the Einstein Institute for Science, Health and the Courts (EINSHAC) has initiated a series of conferences for judges on cases involving genetics, molecular biology, and biotechnology. The first conference was held mid-May 1997, cohosted by the Superior Court of the District of Columbia and the U.S. District Court for the District of Columbia. Fifteen jurisdictions sent representatives. Cases involving scientific evidence of natural inheritance will be considered in the series against a scientific backdrop of genetics, molecular biology, and biotechnology. Future conferences will be held in Chicago, Salt Lake City, Orlando and Cape Cod throughout 1998.
This theme issue of The Judges' Journal discusses some developments and controversies that are being explored in these conferences. The first section highlights the scientific backdrop. The second addresses some issues associated with the adjudication of criminal and civil cases in which molecular genetic evidence is introduced. Together, these articles comprise a primer. A separate handbook and video summaries prepared in relation to the conference series will be available from EINSHAC later this year. Taken together, all of these materials begin an effort to archive resources that judges may well find useful when genetics-related cases are assigned.
We are deeply grateful to Fred Melcher, Editor of The Judges Journal, and to the American Bar Association Judicial Division's leadership for the opportunity to present this issue on genetics in the courtroom. Our thanks also go to John Fallahay, the Issue Editor, for his editorial expertise, project management, and helpfulness in preparing the volume. We wish to note as well our appreciation to the Department of Energy Human Genome Project for technical and grant assistance in the production of this theme issue.
All that remains is to encourage readers to absorb the issues that will soon confront them in the courtrooms of this nation.
Guest Editors
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Please send questions or comments to martinsa@ornl.gov