The Defendant's Right To Compel Genetic Testing

First published in For the Defense in the October 2000 issue

"DNA Fingerprinting, if accepted, will revolutionize the disposition of criminal cases. In short, if DNA Fingerprinting works and receives evidentiary acceptance, it can constitute the single greatest advance in the 'search for truth,' and the goal of convicting the guilty and acquitting the innocent, since the advent of cross-examination."

The above quotation is from People v. Wesley, 140 Misc.2d 306, 533 N.Y.S.2d 643 (Albany County 1988), believed to be the first reported decision on DNA testing in the United States. The study of genetics and biotechnology, while a relatively new topic to non-scientists, is having and will continue to have an increasingly profound effect on our society. Applications of the growing body of knowledge have already revolutionized principles of evidence in certain types of criminal prosecutions, and they will undoubtedly have similar influences on civil litigation in the near future.

Genetics can be thought of as the investigation of the molecular blueprintotherwise known as our DNAthat each of us carries in the chromosomes of every one of our cells. Chemical structures called nucleotides line up like train cars to form this blueprint. These nucleotides are represented by the symbols A, G, C, and T, which stand for adenine, guanine, cytosine, and thymine. The chromosomes of each one of our cells contains a train of over three billion nucleotides. Biotechnology can be thought of as the study, use, or alteration of the chemical structure of that blueprint.

Biotechnology has been used to identify human remains by comparing tissue samples from the body to a known standard. It has been used to identify blood and hair left at crime scenes (and whose sperm was left on a dress!). Increasingly, DNA testing is being used to free wrongly convicted criminals by proving that someone else's DNA was left at the crime scene; powerful use of this tool has resulted in sweeping changes in the post-conviction review of capital punishment and other criminal cases. Genetic testing is also used to identify those who carry the gene for certain diseases, while gene therapythe insertion of new genes into a person's chromosomesplays an increasingly prominent role in the treatment of those diseases.

These are only a few of the applications of biotechnology reported regularly in our mainstream press. Scientists are in the process of completing the final draft of the Human Genome Project, an international gene mapping effort to determine the exact chemical sequence of the nucleotides that form the DNA in every cell of every human body. The completion of this project is likely to produce a quantum leap in biotechnology of similar proportions to walking on the moon.

In the near future, the effects of these advances will likely flow into our judicial system as wellin both criminal and civil litigation. Biotechnology has enabled the identification of perpetrators in criminal prosecutions. Soon, it will enable parties to identify perpetrators in civil actions, toonot human perpetrators of a crime, but genetic perpetrators of diseases. As one court stated, "[w]e also know, based upon well established medical principles, that certain diseases aregenetic in origin and may be passed on to offspring." M.A. v. Estate of A.C., 274 N.J.Super. 245, 643 A.2d 1047, 1052 (1993).

An Application of Gene Mapping

In civil litigation, the results of genetic tests can be used as evidence in the quest to determine the cause of certain medical problems. It is foreseeable that such results will be used to indicate that some person's problems are caused by their genetic "map", as opposed to a medicine manufactured by a defendant corporation.

Some day a class of people might sue a drug manufacturer claiming that adverse reactions to a drug caused intestinal problems, such as abdominal pain, diarrhea, and rectal bleeding. However, a significant percentage of these plaintiffs may have had episodes of similar symptoms before taking the medication. In addition, a parent or sibling who did not take this medication may also have been treated for similar problems.

A medical condition that can be examined as an example of the importance of genetic testing is Crohn's disease, a chronic inflammation of the digestive tract. Feldman, Scharschmidt, & Sleisinger, Gastrointestinal and Liver Disease, vol. 2, at 1708 (6th ed. 1998). There is evidence showing that Crohn's disease has a strong genetic component. For example, siblings of people with the disease may be as much as 17 to35 times more likely to develop the disease than the general population. Fielding, "The Relative Risk of Inflammatory Bowel Disease Among Parents and Siblings of Crohn's Disease Patients," 8 J.Clin.Gastroenterol. 665 (1986). Further, people with Crohn's disease often have unpredictable recurrences, even after years of remission. Feldman, et al., supra. As a...