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IMPORTANCE OF DNA PROFILING AND GENETIC INFORMATION FOR STATE AGENCIES

SUB: HEALTH LAW

IMPORTANCE OF DNA PROFILING AND GENETIC


INFORMATION FOR STATE AGENCIES

SUB: HEALTH LAW

Submitted To: Mr. Kumar Gaurav

Submitted By: Akshata Abhigya


10th Sem, 5th year,
Roll No.- 406
B.A. LL.B. (HONS.)

CHANAKYA NATIONAL LAW UNIVERSITY


Patna

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TABLE OF CONTENTS

RESEARCH METHODOLOGY
OBJECT AND AREA OF RESEARCH
INTORDUCTORY QUESTIOS
1.
2.
3.
4.
5.
6.
7.

What is DNA profiling?


What is genetic information?
How are these two important for state agencies?
What are the international developments?
What is the status of India?
How changes can be done in India?
What are the Related Provisions under Indian Law?

FORENSIC SCIENCE EVIDENCE IN QUESTIONS

What was the evidence?


What did the Court of Appeal say?
What did R. v T decide?
What is to be done?

THE IMPORTANCE OF DNA EVIDENCE TO JURIES IN CRIMINAL TRIALS

Method
Results

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT


DISPLAYABLE
LCN DNA ANALYSIS AND OPINION ON TRANSFER: R. V REED AND REED

Expert opinion relating to transfer of DNA


Conclusion

METHOD AND APPLICATIONS OF DNA FINGERPRINTING: A GUIDE FOR THE NONSCIENTIST


THE TECHNIQUE
LOW TEMPLATE DNA

An example-the Broughton retrial


Legal framework
Conclusion

WHY EVOLUTIONARY BIOLOGY IS (SO FAR) IRRELEVANT TO LEGAL REGULATION


I. INTRODUCTION: THE NEXT INTERDISCIPLINARY WAVE?
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II. WHY IS THE CAUSAL ETIOLOGY OF BEHAVIOR RELEVANT TO LAW?


A. Problems for the Plasticity of Behavior Rationale
B. Problem for the Discovery Rationale
III. DOES THE EXISTING SCIENCE SUPPORT THE PROFFERED ETIOLOGICAL
ACCOUNTS?
A. There's More to Evolution than Natural Selection: A Look at the Biology
B. Best Explanations, or the Problem of Ontological Parsimony
C. Why it Matters Whether Natural Selection is at Work
D. Levels of Explanation
IV. JONESS DEFENSE OF THE RELEVANCE OF EVOLUTIONARY BIOLOGY
A. Is There a Human Behavioral Biology ?
B. Evolution and Natural Selection
C. The Case of Rape
V. CONCLUSION
THE JUSTIFIABILITY OF RACIAL CLASSIFICATION AND GENERALISATIONS IN
CONTEMPORARY CLINICAL AND RESEARCH PRACTICE
1. Introduction
2. Race are a biological and social category
3. The uses of race in biomedical research and practice
4. Racial generalizations and individual patients
5. Racial generalizations, racial groups, and the public perception of race
6. Non-racial genetic stereotyping
CONCLUSION
BIBLIOGRAPHY

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RESEARCH METHODOLOGY
Aims and Objectives:
The aim of the project is to present a detailed study of the topic IMPORTANCE OF DNA
PROFILING AND GENETIC INFORMATION FOR STATE AGENCIES
AGENCIES through Case
study, suggestions, different writings and articles.
Research Plan:
The researcher has followed Doctrinal method.
Scope and Limitations:
Though the topic is an immense project and pages can be written over the topic but because of
certain restrictions and limitations I was not able to deal with the topic in great detail.
Sources of Data:
The following secondary sources of data have been used in the project

Case Study

Articles/Journals/Law Reports

Books

Websites

Citation:
The Blue book method of citation has been uniformly followed by the author for citing the
sources.

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OBJECT AND AREA OF RESEARCH


The topic broadly contains three different words and they are as follows:
DNA profiling
Genetic information
State agencies
The project will aim at defining the first two terms and will provide the importance of both for
state agencies.
State agencies will include two categories:
Health
Crime
The project will try to answer the following research question:
What is DNA profiling?
What is genetic information?
How are these two important for state agencies?
What are the international developments?
What is the status of India?
How changes can be done in India?

HYPOTHESIS

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While engaged in pilot study, the researcher opined that

1) The law governing DNA Profiling and Genetic Information is in the nascent stage and
a lot of developments need to take place.

2) Universal acceptance of the importance DNA Profiling and Genetic Information has in
providing better healthcare facilities and the investigation of crime is not there. Though
the developed and technologically advanced countries have started using it, the
developing countries, like India have still not explored its untapped potential and
optimum utilization is still a far-fetched dream.

3) Research on the evolutionary mechanisms that account for human behavior is an


important area of study, and we hope and expect it will continue.

4) The related law is underdeveloped, insufficient, vague and incomprehensive.

The study proceeds on this premise.

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I.

What is DNA profiling?

To know what is DNA profiling it is important to know what is DNA and then only we will be
able to know about dna profiling . DNA stands for deoxyribo nucleuc acid. It is a nucleic acid
that contains the genetic instructions used in the development and functioning of all known
living organisms (with the exception of RNA viruses).
viruses). The main role of DNA molecules is the
long-term storage of information.
information. DNA is often compared to a set of blueprints,
blueprints, like a recipe or a
code, since it contains the instructions needed to construct other components of cells,
cells, such as
proteins and RNA molecules. The DNA segments that carry this genetic information are called
genes,
genes, but other DNA sequences have structural purposes, or are involved in regulating the use
of this genetic information.

II.

What is Genetic Information?

Genetics deals with the molecular structure and function of genes, with gene behavior in the
context of a cell or organism with patterns of inheritance from parent to offspring, and with gene
distribution, variation and change in populations.
populations. Given that genes are universal to living
organisms, genetics can be applied to the study of any living system from viruses and bacteria,
bacteria,
through plants to humans.
humans.
The fact that living things inherit traits from their parents has been used since prehistoric times to
improve crop plants and animals through selective breeding.
breeding. However, the modern science of
genetics, which seeks to understand the process of inheritance, only began with the work of
Gregor Mendel in the mid-19th century. Although he did not know the physical basis for
heredity, Mendel observed that organisms inherit traits via discrete units of inheritance, which
are now called genes.
genes.

III.

How are these two important for State agencies?

To understand the importance of these two for state agencies the project further categories the
state agencies into health and crime investigation.
Health is an important aspect of any state and it has been even enshrined in the constitution that
state is duty bound to provide to good health service to its citizens and also it is a fundamental
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right of every citizen. In pursuance of this constitutional provision state always invests a great
sum of money in finding out the remedies of various diseases which affects the citizens. Now
with the knowledge of DNA and genetic information it is very easy to read the behavior of virus
and bacteria which provide harm to our body and results in illness. After this information it is
easier for the scientist to form drugs which work against the harmful microbes without any side
affect.
It even helps in developing HYV seeds to feed the growing population of our country under the
conditions such as less availability of water and uncertainty of climatic condition.
Crime investigation is yet another aspect where this information are very important and it
becomes very easy for the state agencies to determine the offenders and it helps a lot in cases of
rape and finding the paternity of child. This information give concrete information relating to the
samples recovered from the scene of crime.

IV.

What are the related provisions under Indian Law?

Section 45 of the Indian Evidence Act, 1872 deals with the opinions of experts.
Section 45. Opinions of Experts.- When the Court has to form an opinion upon a point of foreign
law, or of science, or art, or as to identity of hand writing or finger expressions, the opinions
upon that point of persons specially skilled in such foreign law, science or art, or in questions as
to identity of handwriting or finger impressions are relevant facts.
Such persons are called experts.
The evidence of DNA Expert is admissible in evidence as it is a perfect science.1

V.

What are the international developments?

DNA & Interpol:


Interpol recognises the value of DNA profiling and is supporting this new investigative tool.
Following the acceptance of Resolution No. 8 of the 67th General Assembly (Cairo, 1998) to
advance international co-operation on the use of DNA in criminal investigations, the Interpol
DNA Unit has been established. The objective of this unit is to:
1

Pantangi Balarama Venkata Ganesh v. State of A.P. 2003 Cr LJ 4508 (AP).


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provide strategic and technical support to enhance member states' DNA profiling capacity
and promote widespread use in the international law enforcement environment.
The DNA Unit has designed the following projects to assist member states and encourage DNA
profile comparison across international borders:
Interpol DNA Database and Gateway
Data matching capacity available to all member states using DNA profiling in law enforcement
that is in accordance with their national legislation. DNA profiles can be stored and searched
across international borders using the Interpol Standard Set Of Loci (ISSOL).

DNA Gateway Charter

DNA Gateway Written undertaking


Interpol DNA Monitoring Expert Group

Field experts in forensic science and law enforcement drawn from member states across the five
Interpol regions to provide expert guidance and direction for Interpol DNA profiling policy and
projects.
To support the DNA Unit in providing an effective platform to service the demands of member
states using DNA profiling in law enforcement.
International DNA Users' Conference
A global focus of DNA managers from member states to maintain high level knowledge of
developments in DNA applications to law enforcement through a biennial conference to
examine new developments in DNA applications to enhance member states' capacity.
To introduce best practice models and widespread application of contemporary DNA usage in
criminal investigations.

FORENSIC SCIENCE EVIDENCE IN QUESTIONS


How should forensic scientists and other expert witnesses present their evidence in court? What
kinds and quality of data can experts properly draw on in formulating their conclusions? In an
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important recent decision in R. v T 2 the Court of Appeal revisited these perennial questions, with
the complicating twist that the evidence in question incorporated quantified probabilities, not all
of which were based on statistical data. Recalling the sceptical tenor of previous judgments
addressing the role of probability in the evaluation of scientific evidence,3the Court of Appeal in
R. v T condemned the expert's methodology and served notice that it should not be repeated in
future, a ruling which rapidly reverberated around the forensic science community causing
consternation, and even dismay, amongst many seasoned practitioners. 4 At such moments of
perceived crisis it is essential to retain a sense of perspective.
There is, in fact, much to welcome in the Court of Appeal's judgment in R. v T, starting with the
court's commendable determination to subject the quality of expert evidence adduced in criminal
litigation to searching scrutiny. English courts have not consistently risen to this challenge,
sometimes accepting rather too easily the validity of questionable scientific techniques. 5
However, the Court of Appeal's reasoning in R. v T is not always easy to follow, and there are
certain passages in the judgment which, taken out of context, might even appear to confirm
forensic scientists' worst fears. This article offers a constructive reading of R. v T, emphasizing
its positive features whilst rejecting interpretations which threaten, despite the Court of Appeal's
best intentions, to diminish the integrity of scientific evidence adduced in English criminal trials
and distort its probative value.
What was the evidence?
T was convicted of murder partly on the basis of footwear mark ( shoeprint ) comparison
evidence provided by the Forensic Science Service (FSS). Having considered the rarity of the
sole pattern, shoe size, and indications of wear and damage, the FSS expert concluded that there
was a moderate degree of scientific support for the proposition that the marks at the crime
scene were made by T's Nike trainers. At trial, the expert stated under cross-examination that
about 786,000 pairs of trainers with the relevant sole pattern had been distributed by Nike in the
2

R. v T [2010] EWCA Crim 2439; [2011] 1 Cr. App. R. 9.


Adams (No.1) [1996] 2 Cr. App. R. 467 CA (Crim Div); [1996] Crim. L.R. 898; Adams (No.2) [1998] 1 Cr. App. R.
377 CA (Crim Div). For discussion, see P. Roberts and A. Zuckerman, Criminal Evidence, 2nd edn (Oxford: OUP,
2010), pp.159-163.
4
See I. Evett et al, Expressing Evaluative Opinions: A Position Statement (2011) 51 Science & Justice 1; C.
Berger, J. Buckleton, C. Champod, I. Evett and G. Jackson, Evidence Evaluation: A Response to the Appeal Court
Judgment in R v T (2011) 51 Science & Justice (forthcoming).
5
Compare, e.g. Dallagher [2002] EWCA Crim 1903; [2003] 1 Cr. App. R. 12; [2002] Crim. L.R. 821, relating to the
admissibility of ear-print evidence.
3

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period 1996-2006, of which about 3 per cent would be size 11--T's shoe size. As a point of
comparison, the expert explained, about 300 million pairs of sports shoes had been sold in the
United Kingdom during the last seven years.
In order to arrive at the conclusion stated in his report, indicating moderate support for the
prosecution's contention, the expert had used a reasoning methodology employing likelihood
ratios, in accordance with standard FSS operating procedure. 6 A likelihood ratio is a way of
measuring the strength of evidence. Likelihood ratios compare two probabilities conditioned on a
pair of alternative assumptions: for example, the probability of finding a matching shoeprint if
T's shoes made the marks, and the probability of finding a matching shoeprint if T's shoes had
not made the marks. Among other things, likelihood ratios reflect the insight that, even if there is
a perfect match between the crime scene mark and a suspect's shoe, it does not follow that the
suspect's shoe made the mark. Imagine that the crime scene print was made by a brand new shoe
fresh out of the box. The suspect has a new pair of shoes of the relevant type, but so do many
others who have just purchased the same popular shoe. The evidential value of the match
depends on just how popular this type of shoe is and, correspondingly, how many pairs are
currently in circulation. The likelihood ratio is able to quantify this vital dimension of the
evidence.
In R. v T, the expert assumed that, if the prosecution's proposition was true and T's shoe had
made the questioned marks, the probability of a matching pattern was 1, i.e. the pattern on the
shoe's sole would definitely match the pattern observed in the crime scene marks. The
probability of a matching pattern if the related defence proposition was true reflects the relative
frequency of the sole pattern in the relevant population. In the present case, the expert relied on a
database indicating that 20 per cent of shoes examined in FSS laboratories during the period
2005-2007 bore the matching sole pattern. Thus, the probability of finding a matching pattern if
T's shoes had not made the mark was calculated as 0.2. The ratio of these two probabilities is
1/0.2, giving a likelihood ratio of 5 for the pattern evidence. 7 Spelling out the implications of the
likelihood ratio, this means that the odds in favour of the proposition that T's shoes left the marks
would be five times greater after finding a match between the pattern on T's trainers and the
crime scene marks than they were before the pattern evidence was considered. The expert then
6

For an accessible introduction to the likelihood ratio approach to forensic science evidence, see M. Redmayne,
Expert Evidence and Criminal Justice (Oxford: OUP, 2001), Ch.3.
7
Because 1/0.2 = 5.
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calculated three further likelihood ratios relating to the size, wear, and damage sustained by the
Nike trainers recovered from T. For example, T's trainers and the ones that left the crime scene
marks had similar patterns of wear. On the assumption that about half of the relevant trainers
would share this characteristic, the likelihood ratio for wear was 1/0.5 = 2. Finally, the expert
combined the four likelihood ratios according to the simple formula Pattern x Size x Wear x
Damage, to produce a composite likelihood ratio of roughly 100. 8 In other words, the footwear
mark evidence taken as a whole increased the odds that T's trainers had left the marks at the
scene one hundred-fold.
None of these calculations appeared in the expert's written report or were presented in his oral
testimony at trial. Instead, the expert utilised a conventional scale developed by the FSS to
translate likelihood ratios into a verbal summary of the strength of the evidence which, it is
thought, is easier for juries to understand than a raw number. According to this scale, a likelihood
ratio between 10 and 100 should be expressed as moderate support for the proposition that T's
shoes had left the marks. Had the likelihood ratio been slightly larger, the expert would have
been able to say that the footwear mark evidence provided moderately strong support for the
prosecution case.

What did the Court of Appeal say?


Allowing T's appeal against conviction, the Court of Appeal found fault with several aspects of
the footwear mark evidence adduced at T's trial. Most obviously, there was an apparent
discrepancy between the (undisclosed) likelihood ratio calculations relied on by the expert in
producing his written report and the Nike distribution figures quoted by the expert during crossexamination at trial. The figures quoted in court, and repeated during the trial judge's summing
up, were seemingly less favourable to the defence because they emphasised the comparative
rarity of the accused's size 11 Nike trainers as a percentage of all shoes distributed in the country.
The Court of Appeal was understandably concerned that the jury might have relied on figures
potentially exaggerating the strength of the prosecution's case. More generally, the court felt that,
8

The details of the calculation are given in R. v T [2010] EWCA Crim 2439 at [36]. It appears that the expert's
formula attempted to take account of relationships of dependency between individual factors, e.g. between wear and
size. For further explanation and discussion of the significance of dependency in probabilistic reasoning, see C.
Aitken, P. Roberts and G. Jackson, Fundamentals of Probability and Statistical Evidence in Criminal Proceedings:
Guidance for Judges, Lawyers, Forensic Scientists and Expert Witnesses (Royal Statistical Society, 2010).
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albeit without personal fault, the expert in R. v T had adopted a reporting protocol which
obscured the basis on which he had formed his conclusions. [I]t is simply wrong in principle ,
fumed the court, for an expert to fail to set out the way in which he has reached his conclusion
in his report .9 There was, in other words, an elementary and catastrophic failure of
transparency, entirely at odds with the legal requirement that expert reports must spell out the
details of any literature or other information which the expert has relied on in making the
report10

However, the Court of Appeal trained most of its critical fire on the use of likelihood ratios by
expert witnesses in circumstances where, in the opinion of the court, the expert lacked adequate
data to support any probabilistic calculations. As the court observed, [a]n approach based on
mathematical calculations is only as good as the reliability of the data used . 11 Whilst
probabilistic calculations are acceptable and well-established in relation to DNA profiling
evidence, the data sources relied on by the expert in R. v T to calculate likelihood ratios for sole
pattern and shoe size were branded unreliable and imprecise. 12 Even the national sales figures
quoted in court were merely approximations which excluded counterfeit shoes and those sold
through the Foot Locker retail chain, for which records were apparently unavailable.
Accordingly, the Court of Appeal concluded, resort to probabilistic calculations in relation to
footwear mark comparisons is inherently unreliable and gives rise to a verisimilitude of
mathematical probability based on data where it is not possible to build that data in a way that
enables this to be done We are satisfied that in the area of footwear evidence, no attempt can
realistically be made in the generality of cases to use a formula to calculate the probabilities. The
practice has no sound basis.13 The court added, for good measure, that outside the field of
DNA (and possibly other areas where the practice has a firm statistical base), this court has made
it clear that likelihood ratios should not be used.14
9

R. v T [2010] EWCA Crim 2439 at [108].


Criminal Procedure Rules 2010 r.33.3.
11
R. v T [2010] EWCA Crim 2439 at [80].
12
Cf. M. Saks and J. Koehler, The Coming Paradigm Shift in Forensic Identification Science (2005) 309 Science
892 (arguing that overtly probabilistic DNA profiling evidence may soon become the normative methodological
paradigm for all forensic identification sciences).
13
R. v T [2010] EWCA Crim 2439 at [86].
14
R. v T [2010] EWCA Crim 2439 at [90]. Contrary to the court's suggestion, its previous ruling in Adams (No.2)
[1998] 1 Cr. App. R. 377 CA (Crim Div), lends no support whatever to the decision in T. The Adams Court of
Appeal objected to the use of likelihood ratios by the jury to evaluate non-scientific evidence, employing Bayes'
10

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If experts are precluded from expressing footwear mark comparisons in terms of likelihood
ratios, what are the remaining alternatives? The judgment in R. v T is frustratingly ambiguous on
this vital question. In some situations, it seems, the court might prefer to restrict experts in
footwear cases to saying no more than that the defendant's shoes could have made the crime
scene marks. The use of the term could have made , explained the court, is a more precise
statement of the evidence; it enables the jury better to understand the true nature of the evidence
than the more opaque phrase moderate [scientific] support . 15 However, in particular cases
there may be additional factors, such as unusual size or pattern, that enable the expert to go
further than could have made and express, on the basis of such factors, a more definite
evaluative opinion .16 Later in the judgment, the court expands on these observations, invoking
the facial imaging case of Atkins 17 by way of positive example. Significantly, in Atkins there
was no issue as to the use of a likelihood ratio . 18 By analogy, an expert footwear mark
examiner can therefore in appropriate cases use his experience to express a more definite
evaluative opinion where the conclusion is that the mark could have been made' by the
footwear. However no likelihood ratios or other mathematical formulae should be used in
reaching that judgment.19

What did R. v T decide?


It should be clear from the foregoing case summary that, strictly speaking, the ratio of R. v T is
limited to expert evidence of footwear marks. The Court of Appeal explicitly accepted the use of
probabilistic calculations in relation to DNA profiling evidence (and possibly other areas in
which there is a firm statistical base ) 20 and made no attempt to evaluate the use of likelihood
ratios in relation to other types of scientific evidence which did not fall for consideration in the
instant appeal. That being said, many of the court's specific observations as well as its general
Theorem to calculate a posterior probability of guilt. Whilst there may have been good reasons for that decision,
Adams says nothing about whether experts themselves should use likelihood ratios in forming their opinions.
15
R. v T [2010] EWCA Crim 2439 at [73].
16
R. v T [2010] EWCA Crim 2439 at [74].
17
Atkins [2009] EWCA Crim 1876; [2010] 1 Cr. App. R. 8; [2010] Crim. L.R. 141.
18
R. v T [2010] EWCA Crim 2439 at [93].
19
R. v T [2010] EWCA Crim 2439 at [95].
20
R. v T [2010] EWCA Crim 2439 at [90].
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approach to probabilistic reasoning might easily be extrapolated to other areas of forensic


science and expert witness testimony. So even though R. v T creates a formal legal precedent
only in relation to footwear comparison evidence, the stakes are high in striving to ensure that
the judgment is not misinterpreted or misapplied more broadly.
On the positive side of the equation, the Court of Appeal's concern to ensure that expert report
writing is transparent, that experts' conclusions are properly supported by adequate data, and that
juries are not misled by statistical evidence can only be applauded. However, we also need to
address the potential implications of passages in the judgment which might be taken to impose
general constraints on how forensic scientists and other expert witnesses should arrive at their
conclusions and present their evidence in contested criminal trials.
One possible interpretation of the court's remarks is that, absent better data or unusual features,
an expert should not go beyond saying that a shoe could have made a particular mark. But this
would be an extraordinarily unhelpful limitation on the scope of expert witness testimony. After
all, to say that a particular shoe could have made a mark is logically consistent with any other
shoe in the world having made the mark. It is a bit like saying that the accused could have
been the person that the eyewitness saw running from the scene of the crime on the basis that,
like the perpetrator, the accused has two legs and therefore cannot be eliminated from the pool of
bipedal suspects! Moreover, the really objectionable feature of could have testimony is not that
its logical probative value is slight, but rather that it presents a very tangible risk of causing the
jury to overestimate its probative value. Jurors will reasonably assume the salience of the
information being presented to them at trial--why else would the prosecution be telling us this,
if it wasn't important? --and might easily infer that expert testimony to the effect that the
accused's shoe could have made the mark effectively means the accused's shoe probably
made the mark , or almost certainly did make the mark , etc. 21 Behavioural science data
21

These very concerns were expressed by the Court of Appeal in Atkins [2009] EWCA Crim 1876 at [23]-[25]. It is
conceivable that in R. v T [2010] EWCA Crim 2439 at [66], the court intended to endorse the scale of expressions
used by footwear mark examiners in the United States, where could have made lies between probably made
and inconclusive . While this would clarify the meaning of could have made (supposing that this
understanding was widely shared and could be communicated to fact-finders effectively), the court should also be
aware that probably made involves a transposed conditional (the so-called prosecutor's fallacy ), a logical
mistake rightly condemned by the Court of Appeal in Doheny [1997] 1 Cr. App. R. 369; [1997] Crim. L.R. 669 CA
(Crim Div) and in Deen, The Times, January 10, 1994, and by the Privy Council in Pringle v R [2003] UKPC 9. Cf
R. v T [2010] EWCA Crim 2439 at [91], where the Court of Appeal itself commits the fallacy. For further discussion
of both the could have terminology and transposed conditionals, see Aitken, Roberts and Jackson, Fundamentals
of Probability and Statistical Evidence in Criminal Proceedings, 2010.
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support this speculation.22 Consider also the situation in George, 23where it transpired on appeal
that the small particle of firearm discharge residue (FDR) found in Barry George's pocket was
equally as likely to have been there if George had fired the gun that killed Jill Dando (the
prosecution proposition) as it was if he had not fired the gun (the defence proposition). In the
absence of any hard data on the prevalence, transfer or retention of FDR--an equivalent situation
to R. v T, on the Court of Appeal's analysis--should prosecution experts really have testified, e.g.,
that the FDR could have come from George's having fired the gun and left it at that? Surely
not. The Court of Appeal in George thought that the way in which the FDR evidence had been
led at trial might well have caused the jury to overestimate its true probative value. As the new
scientific evidence presented on appeal brought to light, the FDR evidence was effectively
neutral--in other words, irrelevant to the proceedings. The Court of Appeal's insistence in R. v T
that could have made is a more precise statement of scientific evidence than moderate
support simply does not stand up to logical, let alone empirical, scrutiny.
An alternative interpretation of R. v T, more faithful to the spirit of the Court of Appeal's
intentions if not necessarily to every paragraph of the judgment, is that experts may still offer
evaluative opinions using verbal summaries of probative value such as moderate support and
strong support , even in the absence of robust statistical data, provided that they steer well
clear of likelihood ratios and other mathematical formulae . Whilst this is arguably preferable
to encouraging experts to express meaninglessly vague and dangerously misleading opinions,
such a stricture would nonetheless be unwise. There are many reasons why experts might
justifiably adopt a probabilistic approach, in footwear mark analysis no less than in other areas of
forensic science. One set of considerations relates to the consistency and comparability of
experts' conclusions and their meaningfulness for the jury. If experts are going to continue to
give evaluative opinions--i.e. to say more than could have --some attempt at quantification is
the most obvious way of trying to achieve a measure of consistency in the use of phrases such as
moderate or strong support. Otherwise, there is likely to be a forensic free-for-all, with
one (cautious) expert's moderate support equating to another (cavalier) expert's very strong
support , predictably leading jurors astray or leaving them entirely baffled. Quantification also
promotes transparency. When expert evidence is broken down into its individual elements and
22

See, e.g. D. McQuiston-Surrett and M. Saks, Communicating Opinion Evidence in the Forensic Identification
Sciences: Accuracy and Impact (2008) 59 Hastings LJ 1159.
23
George [2007] EWCA Crim 2722.
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each element is assigned a likelihood ratio (i.e. precisely the methodology adopted by the
footwear mark expert in R. v T), it is easier for a second expert to check the work of the first (as
in fact was done in T's case). This also facilitates scrutiny and challenge by an opposing expert-which is a structural expectation of adversarial criminal proceedings, and something that courts
should especially welcome in an era of proactive trial management in which judges are expected
to manage and clarify expert disagreement through pre-trial processes. 24 Last but surely not least,
a probabilistic approach employing likelihood ratios is an application of logical thinking. It
encourages analytical rigour and balance in the production of forensic science evidence,
specifically because it requires the expert to think in terms of competing defence and prosecution
explanations and to take account of all aspects of the evidence relevant to forming a scientific
opinion. To the extent that a variable such as wear or damage makes it less likely that the
accused's shoes made the suspicious marks, for example, this should be factored into an overall
evaluation of the strength of the evidence, regardless of the fact that the expert may have been
instructed by the police and is called to testify at trial by the prosecution.25
This brings us to the most difficult aspect of the Court of Appeal's judgment in R. v T. The court
rightly demanded full transparency in the writing of expert reports, but then said that footwear
mark experts should not employ likelihood ratios in formulating their evaluative opinions .
Does this mean that experts should disavow familiar forensic tools of logical reasoning, and
thereby eschew a careful and balanced analysis of the evidence? The Court of Appeal cannot
have intended to issue that irrational directive, regardless of what it might have said. Even on the
wild assumption that the Court of Appeal meant to instruct forensic scientists how to think, how
could such an injunction ever be enforced on forensic scientists working, as it were, in the
privacy of their own laboratories? The best that might be imagined would be a policy of don't
ask, don't tell , whereby experts formulated their conclusions according to their good faith
understanding of scientific protocol but carefully concealed their deviant
24

probabilistic

See Judge Roderick Denyer QC, Case Management in the Crown Court (Oxford: Hart, 2008); Reed [2009]

EWCA Crim 2698; [2010] 1 Cr. App. R. 23; [2010] Crim. L.R. 716 at [128]-[134].
25

The court did suggest that, as in Abadom [1983] 1 W.L.R. 126 CA (Crim Div); (1983) 76 Cr. App. R. 48; [1983]
Crim. L.R. 254 (a case involving comparison of glass fragments), an expert can give an opinion using a statistical
database by simply using that database and expressing an opinion by reference to it, without recourse to the type of
mathematical formula used in this case : R. v T [2010] EWCA Crim 2439 at [91]. However, confining an expert
opinion to a simple frequency of occurrence has numerous drawbacks, including its potential (as we have already
noted) to ignore aspects of the evidence favourable to the accused. For criticism of this approach in glass
comparison casework, see Redmayne, Expert Evidence and Criminal Justice, 2001, pp.37-41.
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reasoning from legal scrutiny. This is hardly in keeping with the Court of Appeal's ringing
endorsement of transparency,26 and offers little more than a third-best solution to a second-rate
compromise. Better all round if experts are simply encouraged to give their best evidence as
clearly, intelligibly, honestly, and transparently as they are able, and in accordance with the
precepts of scientific validity, logic and reason.
Lurking behind the Court of Appeal's rejection of likelihood ratios appears to be a concern that,
in the absence of hard data, numerical quantification could produce an almost fraudulent
verisimilitude of mathematical probability . It cannot be right , fretted the court, to seek to
achieve objectivity by reliance on data which does not enable this to be done . 27 Now,
objectivity is a difficult and frequently abused concept. 28 Suffice it here to emphasise that
numerical quantification does not necessarily imply any claim to objectivity. When a weather
forecaster speaks of a 20 per cent chance of snow, it should be clear that, rather than expressing
any verifiably objective fact about the empirical world, this is a statement of probability
regarding future events informed by appropriate meteorological data and expertise. The footwear
mark expert in R. v T did not appear to make any extravagant claims to objectivity in the sense of
presenting his findings as unarguable or as involving no element of judgement. It was obvious
that evaluative judgement loomed large in his assessment of the significance of wear and damage
to T's shoes. Admittedly, numerical quantification sometimes flirts with the sin of false
precision --imagine a weather forecaster predicting a 23 per cent chance of snow . But in R. v
T the expert's ultimate conclusion was couched in broad terms: the evidence gave moderate
support to the prosecution's case.
It is tempting to trace the root cause of the court's quantification-anxiety to its evident
dissatisfaction with the statistical data relied on by the expert in calculating his four likelihood
ratios. Indeed, the most coherent and justifiable interpretation of these difficult passages of the
judgment is that they express an objection to unreliable data, rather than to a particular reasoning
methodology (likelihood ratios) or formula for presenting evidence to the fact-finder (degree of
support). In the court's reckoning:
26

R. v T [2010] EWCA Crim 2439, see especially at [108]: the practice of using a Bayesian approach and
likelihood ratios to formulate opinions placed before a jury without that process being disclosed and debated in court
is contrary to principles of open justice .
27
R. v T [2010] EWCA Crim 2439 at [87].
28
For further elucidation, see I. Evett, Expert Evidence and Forensic Misconceptions of the Nature of Exact
Science (1996) 36 Science & Justice 118; M. Redmayne, Objective Probability and the Law of Evidence
(2003) 2 Law, Probability & Risk 275.
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Use of the FSS's own database could not have produced reliable figures as it had only 8,122
shoes whereas some 42 million are sold every year.29
While there is much truth and wisdom in the court's insistence that an approach based on
mathematical calculations is only as good as the reliability of the data , the adequacy of data to
support a conclusion depends crucially on the nature of that conclusion. It is a question of fitness
for purpose, not fitness at large (which is meaningless). 30 The right question to ask, then, is: were
the data utilised by the expert in R. v T good enough to justify his--quite restrained--conclusion
of moderate support ? Perhaps a database comprising only 8,122 sets of measurements (a
sample size, by the way, that most social scientists can only dream about) would have been
insufficient to justify a conclusion of very strong support for the prosecution case, but the
expert's conclusions in R. v T were far less emphatic. As for the fact that the FSS database
contains only a small proportion of all the shoes sold in the United Kingdom, this is probably
beside the point. The pertinent question is: which database is likely to provide the best
comparators, relative to the task in hand?31 Shoe choice is influenced by social and cultural
factors. Middle-aged university lecturers presumably buy different trainers to teenage
schoolboys. And the shoes making the marks most often found at crime scenes are not the
general public's most popular purchases.32 Consequently, the FSS database--comprising shoes
owned by those who, like T, have been suspected of committing offences--may well be a more
appropriate source of comparison data than national sales figures. In R. v T itself, the difference
was significant and was favourable to the defence: the switch from the FSS data used in the
expert's report to the national sales figures quoted at trial was rightly viewed by the Court of
Appeal as a cogent ground for allowing T's appeal against conviction. Even had complete
national data (incorporating counterfeits and Foot Locker sales) been available, it would arguably
have been unfairly prejudicial to the defence to use those data in preference to the FSS's suspect29

R. v T [2010] EWCA Crim 2439 at [84]. As a general matter, concerns about the size of the sample relative to the
target population may be misconceived. Opinion polls in general elections, for example, frequently sample only
about 1,000 voters from an electorate of tens of millions, but such data can still supply a basis for reliable
predictions so long as the samples are chosen appropriately and the results interpreted carefully.
30
Cf. the Court of Appeal's observation in Benn [2004] EWCA Crim 2100 at [44]: the question of the validity of a
database depends upon the purpose which is to be served .
31
For a detailed analysis of the difficult question as to which databases should be used in analysis of trace evidence,
see C. Champod, I. Evett and G. Jackson, Establishing the Most Appropriate Databases for Addressing Source
Level Propositions (2004) 44 Science & Justice 153.
32
See T. Napier, Scene Linking Using Footwear Mark Databases (2002) 42 Science & Justice 39; M. Tonkin and
J. Bond, Step by Step: How Shoe Prints Could Help Police Officers Home in on Suspects Police Review,
February 12, 2010, 26.
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specific database.
While the court was concerned that there are, at present, insufficient data for a more certain and
objective basis for expert opinion on footwear marks ,33 it is rarely helpful to talk about
objective data in forensic contexts. Choice of data always involves a degree of judgement about
whether a particular dataset is fit for purpose. At the same time, reliance on data is ubiquitous
and inescapable. When the medical expert witness testifies that I have never encountered such
a case in forty years of clinical practice , he is utilising data but he calls them experience ,
relying on memory rather than any formal database open to probabilistic calculations. It would
be just as foolish to maintain that memory and experience are never superior to quantified
probabilities in criminal litigation, as it would be to insist that memory and experience are
always preferable to and should invariably displace empirical data and quantified probabilities in
the courtroom.
What is to be done?
R. v T raises some of the most fundamental, timely and difficult issues surrounding the
production of forensic science evidence and its communication to fact-finders in criminal
proceedings. The Court of Appeal's emphatic directives that expert report writing must be
transparent, that experts' conclusions should be properly supported by adequate data, and that
juries must not be bamboozled by statistical evidence, are valuable reminders of basic principles
to which all forensic scientists and criminal justice professionals should pay heed.
However, this article has taken issue with much of the Court of Appeal's reasoning in R. v T. It is
hard to believe that the court really wanted to restrict experts in fields such as footwear mark
analysis to vague--and potentially misleading--conclusions stating only that the accused's shoes
(or whatever) could have made the questioned marks. It is even harder to believe that the
court wanted to prohibit the careful and balanced approach to expert evidence associated with
likelihood ratios, a methodology which has been gaining ground within the forensic science
community34 and is now endorsed by the UK's Association of Forensic Science Providers. 35 If the
33

R. v T [2010] EWCA Crim 2439 at [87].


See G. Jackson, Understanding Forensic Science Opinions in J. Fraser and R. Williams (eds.), Handbook of
Forensic Science (Willan, 2009); B. Robertson and G. A. Vignaux, Interpreting Evidence: Evaluating Forensic
Science in the Courtroom (Wiley, 1995).
35
AFSP, Standards for the Formulation of Evaluative Forensic Science Expert Opinion (2009) 49 Science &
34

Justice 161. The Association of Forensic Science Providers aims to represent the common interests of the
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real objection is to numerical quantification, the court should have explained why quantification
is problematic even in the absence of unwarranted claims to objectivity or false precision. In
promoting critical scrutiny of the quality of data utilised in expert reports, R. v T makes a
positive contribution to English law. However, the Court of Appeal went off on the wrong track
when it neglected to ask the most pertinent questions about the nature of the relationship between
data and the particular inferential conclusions being advanced in the instant case.
The strict ratio of R. v T is that existing data are legally insufficient to permit footwear mark
experts to utilise probabilistic methods involving likelihood ratios when writing reports or
testifying at trial. For the reasons identified in this article, we hope that the Court of Appeal will
reconsider this ruling at the earliest opportunity. In the meantime, we are concerned that some of
the Court's more general statements could frustrate the jury's understanding of forensic science
evidence, and even risk miscarriages of justice, if extrapolated to other contexts and forms of
expertise. There is no reason in law why errant obiter dicta should be permitted to corrupt best
scientific practice. We venture to suggest that it would defeat the Court of Appeal's deeper
purposes and its own clear statements of principle if forensic scientists and the lawyers who
instruct them were to adopt, through confusion or misplaced obedience to authority, any of the
fallacious readings of R. v T exposed and rejected in this article.

THE IMPORTANCE OF DNA EVIDENCE TO JURIES IN


CRIMINAL TRIALS
This article draws upon interviews of real jurors in criminal trials in the Australian Capital
Territory about scientific evidence and expert witnesses, which revealed that jurors' expectations
of scientific evidence, particularly DNA profiling36 evidence, play an important role in
determining whether or not the jurors, and juries, are able to comfortably deliver a guilty verdict
providers of independent forensic science within the UK and Ireland with regard to the maintenance and
development of quality and best practice in forensic science and expert witness in support of the Justice System
from scene to court, irrespective of commercial pressures associated with the competitive forensic marketplace .

36

Discovered and applied to forensic science only two decades ago: P. Gill, A. Jeffreys and D. Werrett, Forensic

Application of DNA Fingerprints (1985) 318 Nature 577.


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or an acquittal. Where their expectations of DNA evidence are not met, high levels of juror
frustration and speculation may culminate in hung juries.
So how did they actually convict people in the old days, without DNA?
DNA?
Forensic science has long enjoyed a high profile in the media 1 and as a source of entertainment.
Modern techniques such as DNA profiling excite a great deal of interest, particularly in the
context of high-profile crimes. Indeed, public expectation and acceptance that all crimes can be
solved by sophisticated, infallible scientific genii37 has even been termed the CSI effect after a
particularly pervasive American television show. Empirical data (as opposed to media
speculation) suggests the CSI effect may have generated the expectation amongst jurors that
no crime should be prosecuted, and no accused person convicted, unless forensic science
supports the case,38 or more specifically, that the CSI effect has falsely exalt[ed] the
infallibility of forensic evidence .39
In the context of a larger study of juries and expert evidence conducted in the Australian Capital
Territory, one aspect to emerge was the importance that real jurors and juries can place on
hearing evidence of a specific type, namely, DNA profiling evidence. This article reports some of
the issues raised by real jurors in relation to their expectations of DNA evidence; an area which
has not been previously addressed with real jurors in Australia. The small sample precluded any
quantitative analysis; however, the comments of the jurors provide rich insights into issues ripe
for further detailed research.
In the two trials studied, the same defendant was charged with two counts of sexual assault
against his former partner and one count of aggravated burglary. The first count of sexual assault
related to an incident which he said was consensual; the intimate samples taken from the
complainant confirmed that sexual intercourse had occurred and that the accused was the male
contributor. The second charge related to a sexual encounter which the accused denied, and
during which the attacker was masked and disguised (the aggravated burglary was alleged to
have occurred in the context of this incident). The first jury to hear the evidence was not able to
come to a verdict in relation to any of the charges; the jurors were released from their duties and
no verdict was recorded. The prosecution re-indicted the accused and a second jury trial was
37

K. Podlas, The CSI Effect: Exposing the Media Myth (2005) 16 Fordham Intell Prop Media & Ent LJ 430.

38

Australian Broadcasting Commission Radio National, The Science Show--The Truth about CSI, 9 April 2005.

39

See Podlas, above n. 4 at 465.


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conducted several months later. In this trial, the jury again failed to come to a verdict. The
accused was not retried beyond this second trial. Each trial featured a different judge and
prosecutor. However, both trials featured the same evidence, the same witnesses and the same
defence team (senior counsel, junior counsel and solicitor). They relied largely on the
identification of the accused by the complainant, as the remainder of the evidence was mostly
comprised of witness accounts of the complainant's behaviour after the alleged attacks.
Thus, the first incident raised the most obvious shortcoming of DNA profiling evidence in sexual
assault trials: it does not assist in cases where consent, and not identity, is the live issue. The
second incident presented a more classic opportunity for DNA to assist the jury in determining
whether or not the accused had been present and/or had carried out the attack.
The DNA profiling results for the second incident were as follows:
1. A mixed DNA profile that could have come from at least two individuals, obtained from the
complainant's duvet cover. A known partner of the complainant could not be excluded as the
contributor of the major component in the DNA profile and the complainant could not be
excluded as being the minor contributor.
2. A mixed DNA profile that could have come from the complainant and an unknown male
(different from her acknowledged partner) was obtained from a vibrator and its batteries.
3. A mixed DNA profile from at least two contributors was obtained from a pair of boxer shorts.
The complainant could not be excluded as a major contributor and it could not be conclusively
determined whether the complainant's known partner, or the accused, was the other contributor.
The jury were also told of several allegations about the second incident, including that the
offender had carried out much of the attack on a plastic sheet; that the complainant had been
forcibly restrained; that alcohol was forced on the complainant; and that the complainant had
struck the offender; however, no scientific evidence was given in relation to these events.
Other evidence relating to the second incident included: medical reports; photographs of the
scene and of alleged injuries to the complainant; blood-stained items; vomit; an alibi;
observations of the accused; implements used by the offender; and circumstantial evidence.
Some evidence relating to some items found in the presence of the accused after the second
incident was excluded in a voir dire on the basis that its potentially prejudicial effect was greater
than its probative value.
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Method
The first trial and the retrial were observed by the researcher sitting in the public gallery from
jury selection to the verdict. After considering approaches used in other jury surveys conducted
in Australia (New South Wales,40 Victoria41) and New Zealand,42 jurors were given a short written
survey to complete directly after they had deliberated and delivered their verdict. The juries were
told by the judge that the research had been approved by the Attorney-General, and that they
were under no obligation to participate. The questions were simply written, and mostly closedended, with a 5-point Likert scale for responses.43
Jurors were also given a sheet with details of a free 1800 telephone number which, at their
convenience, they might call to further discuss their views in a telephone interview. This method
was based on similar work done by Chesterman, 44 in which more detailed and case-related
questions were asked in a telephone survey conducted post-trial. For the first trial, jurors'
telephone answers were recorded in shorthand directly onto a prepared answer sheet, but due to a
lack of resources were not tape recorded. For the second trial, however, each juror was asked to
consent to having the interview tape recorded, and in all cases the respondents agreed. Answers
were also noted in shorthand on a prepared answer sheet.

Results
The response rate for written surveys completed by jurors in both trials was 100 per cent (n
(n = 12
in Trial 1 and n = 11 in Trial 2).45 The response rate for telephone surveys in Trial 1 was 75 per
40

M. Findlay, Jury Management in NSW (Australian Institute of Judicial Administration: Victoria, 1994).
Ibid.; also Victorian Department of Justice--Criminal Justice Statistics & Research Unit, Report--Survey of
Victorian Jurors (Victorian Department of Justice: 1998).
42
The large-scale survey conducted by W. Young, Juries in Criminal Trials (New Zealand Law Commission:
Wellington, 1999) was particularly instructive.
43
See C. O'Muircheartaigh, J. Krosnick and A. Helic, Middle Alternatives, Acquiescence, and the Quality of
41

Questionnaire Data (University of Chicago: Chicago, 2000) supporting a scale with a middle alternative.
44

M. Chesterman, Managing Prejudicial Publicity (Law and Justice Foundation of New South Wales: Sydney,

2001) 239.
45

Juries in the Australian Capital Territory are comprised of 12 people (Juries Act 1967, s. 7); however, individual
jurors may be excused during the course of the trial due to illness and other specified circumstances (Juries Act
1967, s. 8). The Act permits deliberations provided there are no less than 10 jurors attending the trial. A juror in the
second trial reported in this article was excused due to illness before the conclusion of the trial (and thus prior to
deliberation).
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cent (n
(n = 9). The first juror respondent called the day after the trial concluded, and the final juror
to respond called after two weeks. The response rate for telephone surveys in Trial 2 was 91 per
cent (n
(n = 10), with the first telephone respondent calling the day after the trial concluded, and the
final respondent calling one month after the trial. One juror in Trial 2 gave all responses to the
telephone survey questions by email.

LCN DNA ANALYSIS AND OPINION ON TRANSFER: R. V


REED AND REED
Low Copy Number DNA (LCN) analysis has acquired a high profile in forensic circles, but has
gained more attention following judicial criticism of the technique's reliability in the Omagh
Bomb trial, R v Hoey. 1 The judgment in Hoey was quickly followed by a review conducted on
behalf of the new Forensic Regulator (Caddy Review), 46 which gave the technique an apparent
clean bill of health. However, the conclusions set out in the review have attracted criticism47 and
have not led to agreement about the general use of LCN analyses. 48 The judgment of the Court of
Appeal in R v Reed and Reed 49 deals with two issues. The first is the admissibility of evidence of
this type of analysis. The second, and perhaps more contentious, issue concerns whether an
expert witness ought to be permitted to provide an opinion as to the likelihood and means by
which DNA might have been transferred to the place where it was discovered.
The technique's proponents claim to obtain reliable DNA profiles from amounts of DNA well
below the amounts recommended by the manufacturer of the kits that are used to produce
reproducible STR profiles.50 STR stands for Short Tandem Repeats. These are short lengths of
DNA that have, during evolution, become linked like the carriages of a train--tandemly. We
inherit one set of carriages from each parent at each DNA area (locus). There are ten loci that are
46

[2007] NICC 49; see R. Pattenden, Noticeboard, Integrity of DNA Evidence--United Kingdom (2008) 12. E&P

169.
47

J. Gilder, R. Koppl, I. Kornfield, D. Krane, L. Mueller and W. Thompson, Comments on the Review of Low
Copy Number Testing. Letter to the Editor (2008) 23 Int J Legal Med 535.
48
B. Budowle, A. J. Eisenberg and A. van Daal, Validity of Low Copy Number Typing and Applications to
Forensic Science (2009) 50 Croat Med J 207.
49
[2009] EWCA Crim 2698, [2010] 1 Cr App R 23.
50
P. Gill, J. Whitaker, C. Flaxman, N. Brown and J. Buckleton, An Investigation of the Rigor of Interpretation
Rules for STRs Derived from Less than 100 pg of DNA (2000) 112 Forensic Sci Int 17.
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analysed in the United Kingdom, plus one that identifies the gender of the person. The different
lengths of DNA are called alleles. So we each have two alleles (one from each parent) at each
locus (area). DNA profiling is essentially the process of identifying the alleles at each locus of an
individual. In standard DNA profiling the process uses enough DNA to produce the same result
every time the sample is analysed. For that reason, it is normal in standard profiling only to run
the sample once.
The problems begin when the results from the analyses of ostensibly the same biological material
obtained from crime stains produce quite variable results. The variable results are the
consequence of a sampling phenomenon called a stochastic effect or stochastic variability. A
stochastic effect is a random variation expected when analysing a sample from a very small
population.
To appreciate what a stochastic effect is, consider if you ask only 10 people what team they
support. You are unlikely to get an answer that reflects the views of the whole population. Ask
another group of 10 people and it is likely that you will get a different result. The sample size of
people is too small to gain a reliable representation of the overall population's team loyalty.
Indeed, two small samplings of team supporters are likely to give two different representations of
team loyalty. However, ask 10 million people and you are more likely to obtain a more accurate
picture of the true number of supporters of each team. The stochastic effect is evident in the
difference in results between the two samples of 10 people.
In LCN profiling,
profiling, a particular example of one of the methods of Low Template profiling (the
template being the DNA material that one has at the beginning of the profiling process), there are
so few molecules of DNA available in the sample that these random or stochastic effects appear.
Critics of the technique51 contend that this renders interpretation unreliable as a measure of what
is in the sample. Proponents assert that the difficulty can be surmounted by counting only alleles
(alleles are components of DNA types) that are observed in at least two replicate analyses
(usually called runs ), regardless of the number of runs.52
Stochastic effect and the admissibility of LCN DNA analysis The issue for the Court of Appeal
in Reed and Reed53 was whether, in light of the concerns that had been expressed as to the
51

For example, B. Budowle, A. J. Eisenberg and A. van Daal, Forensic Science International: Genetics Supplement
Series 2 (2009) 551.
52
Gill et al., above n. 6.
53
[2009] EWCA Crim 2698, [2010] 1 Cr App R 23.
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reliability of the technique in Hoey, evidence of LCN DNA analysis was admissible in criminal
proceedings in England and Wales. The court was satisfied that the LCN technique can be used
to obtain profiles that are capable of reliable interpretation where the quantity of DNA available
for analysis is above the stochastic threshold. Consequently, as analysis of such quantities is
unlikely to suffer from stochastic effects, evidence of the results would be admissible. The
reliability of LCN DNA analysis in such circumstances has never really been disputed.
The author was called to provide expert testimony for the defence in Hoey and produced a report
for the appellant in Reed and Reed, and in both proceedings acknowledged having been involved
in cases in which there was no credible challenge to the results of LCN DNA analysis. However,
it does not follow that because reproducible results obtained with sufficient amounts of DNA
using the LCN process have been accepted that this validates the use of the technique in
circumstances where stochastic variability causes serious interpretational difficulties. The court
went on to consider circumstances in which the amount of DNA was such that one might expect
to see variable results because of stochastic effects, and in so doing, effectively offering a
definition of the concept of a stochastic threshold. It observed that [t]here is no agreement
among scientists as to the precise line where the stochastic threshold should be drawn, but it is
between 100 and 200 picograms [of DNA material] .54
It should be noted, however, that the stochastic threshold is dependent on many things, not just
the amount of DNA.
DNA. If all other variables, such as the analytical method and the sample, are
constant then a stochastic threshold can be precisely defined in terms of the amount of DNA.
DNA.
However, because of the presence of these other variables, using the same low amount of DNA
may or may not produce a stochastic effect. The amount merely indicates the possible occurrence
of the real problem, which is variable results. Stochastic effects can be observed, but the problem
of variable results has yet to be addressed satisfactorily. In this regard, the court's conclusion
that:
a challenge to the validity of the method of analysing Low Template DNA by the LCN process
should no longer be permitted at trials where the quantity of DNA analysed is above the
stochastic threshold of 100-200 picograms in the absence of new scientific evidence 55 has the
potential to cause considerable misunderstanding being based, not on the range of factors that
54
55

Ibid. at [74].
Ibid. at [74iii)].
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can affect the presence of stochastic effects, but solely on the amount of DNA.
DNA. This confusion is
evident in the judgment subsequently delivered by the New Zealand Court of Appeal in R v
Wallace56wherein the court ignored the clear stochastic variability, but focused instead on the fact
that no quantitation had been performed to establish the amount of DNA;
DNA; the equivalent of
saying that a drunk driver was not dangerous because he or she was not exceeding the speed
limit.
The LCN process has two components, the first being the multiplication of the small numbers
of DNA molecules in the sample to produce enough to be seen by the analytical equipment. This
is followed by the interpretation of the results produced by the physical processes. The
multiplication (known as amplification) process used in LCN is done 34 times rather than the 28
times recommended by the manufacturer of the profiling kit. This is one way to improve the
sensitivity of the analysis so that the DNA results can be observed and is not, in itself, a problem.
It is like modifying a car or piece of equipment to operate faster or louder than it was originally
designed to do. In this regard, the process is straightforward. It is the interpretation of the
resulting profiles that is the main focus of the criticism of the technique. Experiments in the
development of LCN typing showed the stochastic effect results in the absence of alleles that
should have been detected (drop-out) and the presence of alleles that were not in the original
sample (drop-in).57 The scientific debate is how to deal sensibly with these phenomena.
Although the analysis of such amounts (100-200 picograms) of good quality DNA from a single
person is unlikely to produce stochastic effects, there are many circumstances found within
normal criminal case materials where the total amount of DNA is a poor indicator of potential
problems; examples being mixtures (an equal mixture of two persons' DNA with a total of 150
picograms of DNA meets the criterion set out by the Court of Appeal in Reed and Reed, but in
fact only 75 picograms of each person's DNA would be analysed with the real possibility of a
stochastic effect in each), which do fall below the court's criterion. The stochastic effect is
exacerbated with degraded samples and the presence of other materials that can affect the
profiling chemistry (termed inhibitors). The court suggested, however, that cases in which
reliance was placed on analysis on quantities of DNA within the 100-200 picogram range, in
respect of which there is at present no consensus on stochastic effects, would be rare.
56
57

[2010] NZCA 46.


Gill et al., above n. 6.
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Notwithstanding the difficulties with using the amount of DNA as a proxy for the stochastic
effect, the setting of the lower limit at 100 picograms is ironic; it is the amount below which the
technique was designed to analyse DNA reliably. The judgment would therefore appear to
endorse the criticisms of the use of some profiles obtained using the LCN technique. Indeed, in
the absence of notable stochastic effects, the amplification technique itself is uncontentious.
However, the presence of notable stochastic effects will continue to render the interpretation,
which is based on the experiments used to develop the technique, open to challenge. Some
clarification of the decision in Reed and Reed is found in the Court of Appeal's subsequent
judgment in R v C.58 This appears to underline the view that it is not the quantity of DNA,
DNA, but the
quality, specifically the reliability (i.e. absence of stochastic variability), that is the central
concern when considering the admissibility of evidence of LCN DNA analysis.59

Expert opinion relating to transfer of DNA


As the appellant had abandoned the grounds of appeal relating to the admissibility of the LCN
results prior to the hearing, the only live issue in Reed and Reed concerned expert opinion on the
potential mechanisms of transfer of DNA.
DNA.
DNA is carried in the cells of the body. These are minuscule packets of DNA,
DNA, about 10,000 of
which can occupy the head of a pin. In some circumstances a visible stain (for example, blood or
semen) can be used to ascertain where to find DNA,
DNA, and the DNA can be reasonably associated
with the stain. The increased sensitivity of modern DNA profiling techniques enables profiles to
be obtained from only a few cells (ten or less and possibly a single cell). These few cells are
invisible to the naked eye. We lose cells all of the time and these are transferred from person to
person or person to object (direct transfer). They may also be transferred from the initial direct
deposit to other persons or objects (indirect transfer). Most scientists agree that it is not possible
to say how or when such small amounts of DNA (by which they mean cells) came to be on an
object, although some work has been done to examine the degree to which this may happen. 60 At
58

[2010] EWCA Crim 2578.


Ibid. at [27]: Of course if, in the case of a mixed profile, the DNA relating to a particular profile comprises less
than 200 picograms, problems may arise. But as was made clear in Reed & Reed and in Broughton, profiles obtained
from less than 200 picograms can be reliable. It is reliability that is the issue, not the quantity, though plainly the
quantity is relevant (as has been made clear) to the consideration of stochastic effects.
60
C. Ladd, M. S. Adamowicz, M. T. Bourke, C. A. Scherczinger and H. C. Lee, A Systematic Analysis of
Secondary DNA Transfer (1999) 44 J Forensic Sci 1270; R. A. H. van Oorschot, D. G. Phelan, S. Furlong, G. M.
59

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trial, the prosecution scientist in Reed and Reed had offered an opinion on the most likely
mechanism of transfer of biological material found on remnants of the weapons that the
prosecution claimed had been used to inflict fatal wounds on the deceased. The defence objected
that such an opinion was not based on science and should have been excluded.
The court concluded, however, that the scientific basis of the opinion was sufficiently reliable to
allow a forensic science expert to give evidence opinion enumerating the possible means of
transfer of DNA where the amount in question was over 200 picograms, provided that there was
a sufficient evidential basis, from the profiles and other material, to enable this to be done.
However, at the appellants' trial, the expert called by the Crown had gone further. She had opined
that the most likely explanation as to how the appellants' DNA came to be on the handle of the
knives that the prosecution alleged to be the murder weapons, was that it was the result of direct
transfer that occurred when the appellants carried the weapons to the victim's house and were
holding them during the attack. The Court of Appeal took the view that:
there was no reliable scientific basis for her to be able to express a view on the use the appellants
made of the knives as opposed to the circumstances of transfer of their DNA.
DNA. Her opinion on this
had no underlying scientific basis and therefore went beyond the scope of the evidence an expert
could be permitted to give. However, as we have made clear, she was entitled to express the view
that the most likely explanation for the DNA of the appellants being on [the knives] was that
they had brought them to the scene. That view was the logical conclusion from her evaluation of
the other possibilities--secondary transfer was unrealistic and primary transfer to each of the
knives which had then been brought by another to the scene was highly unlikely.61
The basis on which the court distinguished the science relating to the holding whilst murdering
and that relating to the act of holding whilst bringing to the flat is opaque. Each requires
sufficient knowledge of all of the possible mechanisms, and their timing, before a logical
conclusion is possible. Of course, the point at which the underlying science is sufficiently
reliable to provide the basis of admissible expert opinion in criminal proceedings is a matter for
the courts. However, the issue of DNA transfer remains controversial scientifically, and is
Scarfo, B. Holding and M. J. Cummins, Are You Collecting All the Available DNA from Touched Objects?
(2003) 1239 International Congress Series 803; A. Lowe, C. Murray, J. Whitaker, G. Tully and P. Gill, The
Propensity of Individuals to Deposit DNA and Secondary Transfer of Low Level DNA from Individuals to Inert
Surfaces (2002) 129 Forensic Sci Int 25.
61
R v Reed and Reed [2009] EWCA Crim 2698, [2010] 1 Cr App R 23 at [127] (emphasis supplied).
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contrary to the more cautious approach of other forensic companies within the United Kingdom
who do not usually express such opinions on transfer. There can be little doubt that expert
opinion on transfer mechanisms will be subject to challenge in future cases. The court in Reed
and Reed made it clear that the expert's opinion was admissible in all the circumstances of this
case , and this caveat may allow the adequacy of the scientific research in this area to be
assessed on some future occasion.
In its judgment, the court relied on only two of the large number of scientific papers to which its
attention was drawn by the parties. Neither provides much support for the court's conclusion in
that each quite clearly states that further research is required. The judgment quotes a passage
from a paper by Phipps and Petricevic, published in 2006:
Although further research is required, the work presented here goes some way towards
advancing understanding of the transfer of trace levels of DNA,
DNA, and in doing so may allow
forensic analysts to be able to evaluate better the meaning of this type of evidence.62
It would appear that the court attached greater weight to the latter claim than the former. It
should be noted that the authors of a more recent paper,63 to which the court's attention was also
drawn, deal with LCN DNA and specifically state that:
The detection of an individual's alleles in an evidence profile, whether it be from skin cells
recovered from an item or from a blood, saliva, or semen stain, simply indicates that their DNA
may be present. No inferences about the means of deposition should or can be made.64
Of more concern in the scientific community will be the court's conclusion that a forensic
science officer with scenes of crime experience can properly give opinion evidence on the
possible mechanisms of DNA transfer on the basis of his or her knowledge of the scene of the
crime (and any other agreed circumstances), experience, and the scientific research that has been
undertaken. It would seem open to such a witness to override the scientific research (or lack of it)
in favour of personal experience. The judgment in Reed and Reed has attracted significant
critical comment in the scientific community. In the Editorial in Science & Justice, 65referring
62

M. Phipps and S. Petricevic, The Tendency of Individuals to Transfer DNA to Handled Items (2007) 168
Forensic Sci Int 162.
63
T. Caragine, R. Mikulasovich, T. Tamariz, E. Bajda, J. Sebestyen, H. Baum and M. Prinz, Validation of Testing
and Interpretation Protocols for Low Template DNA Samples Using AmpFlSTR Identifiler (2009) 50 Croat Med
J 250.
64
Ibid. at 265.
65
Editorial, Who Speaks Up for Science (2010) 50 Science & Justice 111.
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specifically to the Court of Appeal's conclusions, it was claimed that:


Recent legal cases in the UK may have potentially begun to move us into what is an
uncomfortable arena, where suggestions those years of practical experience are more important
to the courts than sound science.
This follows similar concerns that have been expressed about forensic science generally, and
LCN in particular, in papers published in various scientific journals and in one of the most
authoritative and far-reaching reports published on the problems with the scientific content of
forensic science.66 The concerns of the scientific community were recently conveyed in a
succinct editorial published in one of the most esteemed scientific periodicals:
Forensics has developed largely in isolation from academic science, and has been shaped more
by the practical needs of the criminal justice system than by the canons of peer-reviewed
research. This difference in perspective has sometimes led to misunderstanding and even
rancour. For example, many academics look at techniques such as fingerprint analysis or hairand fibre-matching and see a disturbing degree of methodological sloppiness. In their view,
forensic examiners have a poor empirical basis for estimating error rates, and they use protocols
that don't fully take into account the possibility of unconscious investigator bias. Many
academics are also perturbed to see newer techniques, such as DNA analysis of extremely small
samples and functional magnetic resonance imaging, being pressed into service before the results
and interpretations have been adequately validated for forensic use.67
Conclusion
The judgment in Reed and Reed should not be viewed as having foreclosed the possibility of
challenges to the admissibility of LCN DNA analysis in future cases. These clearly should be
possible in what amount to the same conditions as they were challenged before, the presence of
variable results. Almost all LCN cases start with amounts of DNA typically less than 100
picograms.
As to the criminal justice system's faith in experience as evidence of scientific expertise, whilst
experience in science is useful, it augments but does not replace the foundations of scientific
knowledge. This decision, and similar recent decisions, have undoubtedly stirred the wider
66

National Academy of Sciences of the USA, Strengthening Forensic Science in the United States: A Path Forward
(National Academies Press: Washington DC, 2009).
67
Editorial, Science in Court (2010) 464 Nature 325.
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scientific community to react to what it sees as an attack on what gives science its enviable
reputation (and value in court): published, validated, peer-reviewed, experimentally controlled
research as the basis for operating procedures and interpretational rules for practical applications.

METHOD AND APPLICATIONS OF DNA FINGERPRINTING: A


GUIDE FOR THE NON-SCIENTIST
The development of a new technique, known as DNA fingerprinting, has enormous potential
for use in medical science and forensic investigation. In this article the scientific background to
this technique is described in terms which, it is hoped, will be comprehensible to the nonscientist and which will make clear its forensic and legal importance. The accuracy of
identifications made using DNA fingerprinting is discussed and particular areas of possible
application are indicated.
Existing investigative techniques such as blood group analysis or immunological tests have both
qualitative and quantitative drawbacks compared to DNA fingerprinting. A putative father in a
paternity case, for example, can be excluded on the basis of blood group analysis but can be
positively identified only in exceptional circumstances. Immunological techniques have many
applications in forensic science, including identification of blood components and the specific
origin of tissues, but these methods depend for their accuracy on the properties of the sample
such as age, purity and the quantity available for analysis.
The strength of the DNA technique rests in the intrinsic properties of Deoxyribonucleic Acid
(DNA),
DNA), the material of which chromosomes are made. Only tiny quantities are required for
analysis, and each individual's DNA is unique. Under the correct circumstances DNA is
remarkably stable and indeed has been extracted from Egyptian mummies.
The new technology has so far not been applied in any court case in the United Kingdom, North
America or elsewhere so far as is known. It has, however, been utilised in one immigration
dispute to establish a mother-son relationship, and has been instrumental in securing the release
of a youth charged with murder. It is reported that the Home Office are preparing a test case
relating to the use of the technique to be brought before the English criminal courts. It is
important, therefore, that lawyers acquaint themselves with the general principles involved in the
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technique and its implications for both criminal and civil law.

THE TECHNIQUE
Human cells contain within them all of the information needed to produce a complete human
body. This human blueprint is carried in discrete packets of information known as chromosomes,
and the material of which they are made is called DNA.
DNA. There are 46 such packets within a cell
and they can be arranged by means of common characteristics (such as their appearance under
the microscope) into 23 pairs. At fertilisation the ovum and sperm, each of which contain 23
single packets combine to produce the total of 46. Thus 50 per cent. of the genetic information is
of maternal origin, and 50 per cent. is of paternal origin.
If one thinks of how information may be stored, many examples can be given, such as printed
words on paper, grooves on a record or images on a photographic film. In all of these examples
the information is stored on an inert medium but in the case of DNA the information is contained
within its own chemical structure. Four building blocks known as bases make up DNA,
DNA, and the
order in which these bases occur provides the information required to assemble and regulate the
construction of the body.
The bases are known by their initial letters, A, G, C, T and the structure of DNA itself can be
thought of as resembling a zip fastener where A, G, C, T are the teeth of the fastener. Zips have
two strands and so too has DNA,
DNA, but unlike a zip, DNA will only close when A pairs with T, and
G with C (as shown in fig. 1).
Figure 1
--A G C G G C A T T T A G G C A T A A---T C G C C G T A A A T C C G T A T T-Fragment of DNA showing double strand
structure and complementary base pairing.
Two other properties of DNA are important to our understanding of DNA fingerprinting.
1. The number of bases in a chromosome is enormous. It has been estimated that only about 45
per cent. of these are required for normal cell operation; the purpose of the remaining 55 per
cent. is not yet understood. The functional units (the operative 45 per cent. of the bases) are
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spread throughout the length of the chromosome rather like pages of English text in an
instruction manual. Between these pages of text are interspersed pages in an unknown language;
we cannot understand them but they may be of great significance. If we were to represent a
chromosome in the form shown in figure 1 it would require on average 1.3 10,8 characters to
denote the entire length of the chromosome, that is at 5 characters per centimetre we would need
a paper strip 261 kilometres long to write the entire base sequence. At intervals throughout the
length, bases randomly occur in certain combinations of 6, known as restriction sites (see fig. 2).
Figure 2
--AAGCTT---TTCGAA-Example of palindrome sequence of DNA recognised by restriction enzyme. (Many such
palindromic sequences exist throughout the chromosome).
As we mentioned earlier, chromsomes are derived from both parents, so the distribution of
restriction sites and hence the fragment separations are similarly inherited. In the process of egg
and sperm formation some rearrangement of the DNA occurs, but at the same time large sections
are left unaltered. Thus a son or daughter has DNA characteristics of both parents, but is a unique
individual. When DNA is analysed by means of the repeat sequence probe, fragments can be
detected which are of maternal and paternal origin, while others are specific to the child. DNA
fingerprinting produces a band pattern as unique in its way as a normal fingerprint but from
which in addition information relating to the parental origin can be derived.
Another use of DNA probes is in the prenatal diagnosis of genetic disease where a statistic is
calculated from which the probability of a genetic disorder being inherited is derived. In contrast
to this, in paternity disputes and criminal investigations, the technique will be used to make a
positive identification. While many individuals share, for example, a particular blood group, the
extracted DNA from a biological specimen will match exactly with the donor's DNA and nobody
else's. This is confirmed by the DNA banding patterns which will be exactly the same for donor
DNA and specimen DNA Thus a rape suspect could be positively and exclusively linked with a
semen deposit. The only possible confusion lies in the case of identical twins who will share
many DNA characteristics. The DNA banding patterns of ordinary siblings will show
considerable differences.
Applications
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In 1983 a boy was refused entry into the United Kingdom because immigration officers doubted
that he was the son of a Ghanaian woman who held rights of settlement in this country. An
appeal to an immigration adjudicator was unsuccessful on the grounds that the medical evidence,
based on conventional tests, did not rule out his being the nephew of the woman in question
rather than her son. In preparation for a further hearing before the Immigration Appeal Tribunal,
the new DNA technique was employed. Statistical analysis of the DNA fingerprints established
with virtual certainty that the woman was the boy's mother. This conclusion was based on the gel
analysis which showed a high number of shared bands between the woman and boy. The chance
of this match occurring at random is about 30,000 million to one, i.e. 30,000 million people
would require to be tested before such a match would occur by chance (the world population at
present is about 4,000 million!). The likelihood of an aunt and nephew sharing the same band
patterns was half a million to one; certainly higher, but still low enough for the relationship to be
excluded.
In spite of these remarkable figures the Home Office did not concede the case at this point.
Apparently they doubted the ability of the technique to determine the mother-son relationship
with such certainty. On the day of the hearing the case was conceded by the Home Office
without the technique being legally tested or considered. Nevertheless, the Home Office now
appears to have changed their view of the technique. In a House of Commons written reply of
October 28, 1986 the Home Office Minister, Mr. David Waddington, announced that the
Government was planning to hold a trial applying DNA testing to a sample of about 40
immigration cases where a parent-child relationship is fundamental to the claim to enter or
remain in the United Kingdom. The analysis is to be carried out by Dr. Jeffreys of the University
of Leicester who was the developer of the technique. At the same time it was announced that
preliminary discussions had been held with Imperial Chemical Industries about the commercial
development of DNA testing.
As stated earlier, it is reported that the Home Office may be preparing a test case to be brought
before the criminal courts.6 The result of such a case would be significant for a wide variety of
legal issues. Already it has been reported that in November 1986 a youth who had been held in
prison for three months on a charge of murder was freed by Leicester magistrates after use of the
technique. The youth had been accused of sexually assaulting and strangling a girl aged 15. The
magistrates were told that DNA tests showed that the accused was not the murderer.7 Police
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investigating this and an earlier case have now asked about 2,000 men aged between 16 and 34
living in the area to provide blood and saliva samples in an attempt to trace the killer.
The potential applications of the DNA fingerprinting techniques are varied and many. As regards
the law, its use in the investigation of crimes such as assault or rape, and in the determination of
paternity can be seen from the above cases. By using this technique, a DNA fingerprint can be
constructed which is unique to a particular individual. Thus in rape cases, minute blood or semen
specimens, even of considerable age, may yield the necessary DNA information to allow positive
identification of the person from whom they have come. This may even be possible where the
specimens are mixed, e.g. where vaginal secretions are mixed with semen. In the determination
of paternity or maternity the case described above illustrates the certainty with which the
technique can be employed.
The distinguishing feature of DNA fingerprinting compared with traditional tests is that positive
indentification is virtually certain. Existing alternative tests generally serve only to exclude
persons from the matter under investigation.

LOW TEMPLATE DNA


Faced with a statement from a forensic scientist that the probability of DNA from the crime
scene coming from someone other than the accused is less than 1 in 1 billion, the familiar
reaction (if defending) is urgently to advise a guilty plea, or (if prosecuting) to assume that that
guilty plea will soon be forthcoming. This understandable reaction will often fail to do justice to
the evidence. Of course, as with other areas of expert evidence, not all DNA results are equal,
with some being rather more equal than others. Practitioners need to familiarise themselves with
what lies behind apparently compelling random match probabilities and likelihood ratios.
An essential first step, when served with apparently compelling DNA evidence, is to request the
underlying scientific results. These will assist in the asking of the right questions - such as
whether this is low template DNA (LTDNA), what the precise amount of DNA material
recovered was, whether it is below the stochastic threshold , and what process or processes
were used to obtain and subsequently analyse the results? Practitioners will need to be able to
make sense of the graphs generated by the analysis process and also of the reporting scientist's
handwritten profiling results. Whether the results are said to be from a single source or mixture
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of different contributors and, if so, how many, is a further important enquiry.

Routinely, DNA samples are subjected to profiling using a variety of commercially available test
kits with SGM+ and Identifiler being the most commonly used in this jurisdiction. These kits
used by the various forensic services providers amplify the sample and target 10 (SGM+) or 15
(Identifiler) specific areas (loci) on the DNA.
DNA. These loci are hypervariable

between

individuals, and at each locus an individual has two components (alleles) - one inherited from
each parent. Both kits also target an additional area, the amelogenin locus, for the purpose of
ascertaining if the contributor(s) to a sample are male or female. The results are shown on graphs
(electrophoretograms or EPGs) which are then analysed by a reporting scientist. The height of
the peaks on the graph are measured in RFUs 1 and will typically be in the order of 1500 RFUs
when analysing optimal samples (i.e. where there is a optimal amount of DNA material to
analyse, typically 0.5 ng or more). Interpretation of results from optimal samples (single source,
high quality and quantity of DNA)
DNA) is uncontroversial, and rarely gives rise to any meaningful
debate.
It is however different in relation to low template DNA samples (LTDNA). Essentially, low
template is the umbrella term for sub-optimal quantities of DNA (below 0.5 nanogram). Results
from LTDNA are frequently uninformative when using the kits as recommended by their
manufacturer as the processes have been deliberately designed to yield no results when small
amounts of starting DNA are used.
To attempt to address this, different forensic science providers have developed new techniques to
make the tests more sensitive. These include Low Copy Number (LCN-where the usual 28 cycles
of amplification are increased, often to 34) and Enhancement (where the sample is chemically
cleaned up ). The results are again shown graphically, but peak heights will often be lower - 50
RFUs, and below are not uncommon.
This is where interpretation of results can become subjective - with reporting scientists
legitimately differing as to whether a peak found at a particular locus is indeed DNA rather than
background noise, contamination (DNA
(DNA from a source other than the crime sample) or stutter (a
commonly encountered false peak generated by the analytical process). These are known
collectively as stochastic (random) effects, and it is widely recognised that these effects
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increase as the amount of the DNA sample decreases.


The importance of this is readily apparent. Matches to the suspect's known DNA profile will
provide the basis for the random match probability/likelihood ratio statistics which will be put
confidently by the Crown in front of a jury. But if an apparently matching peak may in fact be
something else, then those statistics may give a positively misleading view of the probative value
of the DNA evidence.
Inherent in the field of LTDNA are the issues of drop in and drop out . Essentially drop
in

is a peak which, although DNA,


DNA, may not be from the crime stain, and arises from

contamination. Drop out on the other hand is where there is either one or no apparent peak at
one or more of the loci tested (or where the peak is considered to be too low to be called as a
DNA component). These empty loci are sometimes referred to as voids .
Such phenomena frequently produce partial or incomplete profiles. (A full profile on SGM+ will
have a total of 20 peaks - 2 alleles at each of the 10 loci tested). The question then arises as to
whether the voids may invalidate the statistical analysis put on the peaks found. Is the sample a
single profile, or is it a mixture? If it is a mixture, how many persons contributed to that mixture?
What if there has been dropout of DNA which did not match the suspect, and might have
exonerated him or her? What if a peak attributed to and matching the suspect is in fact drop in
from another source?
These questions are not purely academic. Conventional statistical analysis of LTDNA in this
jurisdiction struggles to provide reliable statistics where there is evidence of two-person
mixtures. With three possible contributors, the statistics break down. So one scientist may read a
set of LTDNA results as representing a single person's profile, while another may interpret the
same results as a mixture.
Attempts have been made to minimise the risk inherent in profiling from LTDNA results.
Commonly consensus has been used as one approach. Each test is run at least twice, and a
peak is only called as genuine if it is replicated in two or more tests. But to the argument that this
favours a suspect, (by excluding what may be a genuine match seen only once) can be put a
counter-argument. The consensus approach would also ignore a non-matching component seen
only once. If the profile is said to be from a single contributor, that non-matching component
should in fact exculpate the suspect.
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A further issue with LTDNA arises from the ease with which a profile can be transferred from
one surface to another - sometimes both unwittingly and innocently. For example A could shake
hands with B, and a minute quantity of A's DNA may transfer to B's hand. If B then touched a
knife, A's DNA could transfer from B's hand onto that knife. Some scientific studies have
suggested that the knife may only show indications of A's DNA being present on that knife. No
one can say with confidence that an LTDNA profile comes from a person who came in contact
with an object most recently or frequently. So a person's DNA profile could be found at a crime
scene with which that person has never actually been associated.
New methods of analysis
There have recently been efforts to take the subjectivity out of the analysis of LTDNA results
through the use of computerised data analysis and modelling. Here, the role of the reporting
scientist is reduced to inputting all the data generated into a computer programme, which then
provides objective statistics for random match probability and likelihood ratios. These may
well represent a considerable advance on the currently employed methodology, but, as ever, new
solutions throw up new (and old) concerns.
An example-the Broughton retrial
In a recent retrial at Oxford Crown Court (R.
(R. v Broughton, June-July 2010), at which the
defendant, an animal rights activist, was convicted of conspiracy to commit arson, Professor
David Balding was called by the Crown to give evidence based on LTDNA results which he had
analysed using software that he had written. He is Professor of statistical genetics at University
College London, and a well-known and internationally respected expert in the field of statistical
analysis of DNA results. He has in the past also been a critic of the subjective analysis of
profiling results, in particular in relation to the way drop-out has been largely ignored when
formulating statistics (see, for example Bates, post ). The algorithms underlying his computer
code had been published in a peer-reviewed journal,2 and the court decided that his methods had
been sufficiently validated to permit their introduction into evidence. His evidence gave powerful
support to the Crown's case that the accused was the principal source of the LTDNA from the
crime scene. This was strongly disputed by the defence.
Laurence Mueller, Professor of ecology and evolutionary biology at the University of California,
Irvine USA, was called by the defence. Although he considered Balding's approach to be a
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significant advance , he pointed out that the statistics generated were dependent on subjective
estimates of values for drop-in and drop-out. He (along with Dan Krane, Professor of Biological
Sciences, Wright State University, Dayton, Ohio USA, also called by the defence) considered
that there was no way these values could ever be accurately estimated. Mueller demonstrated that
by increasing the probability of drop-out having occurred, the statistics favouring the Crown's
hypothesis decreased - to the extent of eventually becoming positively exculpatory of the
defendant. Realistic values for drop-in and drop-out were hotly contested by the respective
experts, and it was accepted that such values could only be roughly estimated - but this case did
illustrate that subjectivity has yet to be taken out of this area of forensic science, and that
respected experts can still differ widely as to the correct interpretation to be placed on LTDNA
results.
Whatever its potential shortcomings, the authors consider it likely that the Balding method
will soon replace the primacy given to the opinion of the reporting scientist, and as such
practitioners will need to gain an understanding of his computer model, and of its potential
strengths and weaknesses. Also on the horizon (though ruled inadmissible as insufficiently
validated in the Broughton trial), is a proprietary computer programme ( The True Allele )
created by Dr Mark Perlin (Director of Cybergenetics Corp, Pittsburgh USA). The workings of
this programme rely on complex mathematical models analysing all the data however marginal,
and it claims to be able to provide meaningful statistics even from complex mixtures. Professor
Mueller (on a voire dire to determine admissibility in the Broughton retrial) described the
methods as an interesting and potentially important advance for the objective interpretation of
LTDNA, but had real concerns as to its forensic use due principally to his view that it had yet to
be sufficiently validated by peer review.
Legal framework
The admissibility of DNA evidence was first addressed by the Court of Appeal in Doheny [1997]
1 Cr.App.R. 369 in which the Court held that when adducing DNA evidence in a criminal trial
the expert should also provide his calculations of the random occurrence ratio and the
prosecution should provide the defence with the means of calculation to allow adequate scrutiny
of the results. The expert should explain the match between the DNA samples, but should not
give their opinion on the chances of the defendant having left the crime stain.

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In Bates [2006] EWCA Crim 1395 the Court considered the position in regard to partial profile
DNA evidence. It was common ground that a partial profile was less satisfactory than a full
profile, because the information missing from a partial profile could potentially establish
conclusively that the person under investigation had not contributed to the sample. The appellant
argued that the effect of the decision in Doheny was that only statistical evidence could properly
be placed before the jury in relation to DNA analysis, and that in the case of a partial profile the
inability to take account of the potential exculpatory effect of missing information, or voids ,
invalidated any match probability. It was further submitted that it was inappropriate to invite the
jury to assess for themselves the evidential value of a partial profile, and that of the missing
voids, as it would require them to weigh up something which was inherently unquantifiable. The
Court rejected these arguments and held that Doheny was not authority for the proposition that
only match probability calculations which took into account the statistical value of every
possibility were admissible in evidence, and stated that in principle there was no reason why
evidence based on a partial profile should not be admissible, provided that the jury were made
aware of its limitations and were given sufficient explanation to enable them to evaluate it.
Over the last 18 months Lord Justice Thomas has presided over a series of appeals in which the
Court has addressed admissibility issues relating to low template DNA.
DNA. The most important
decision was in Reed [2009] EWCA Crim 2698; [2010] 1 Cr.App.R. 23. In Reed the Court
considered both the reliability and admissibility of low template DNA and the procedure for
determining its admissibility. In regard to the first issue, it concluded that low template DNA
could be used to obtain profiles capable of reliable interpretation if the quantity of DNA that
could be analysed was above the stochastic threshold:
i) Low Template DNA can be used to obtain profiles capable of reliable interpretation if the
quantity of DNA that can be analysed is above the stochastic threshold - that is to say where the
profile is unlikely to suffer from stochastic effects (such as allelic drop out mentioned at
paragraph 48) which prevent proper interpretation of the alleles.
ii) There is no agreement among scientists as to the precise line where the stochastic threshold
should be drawn, but it is between 100 and 200 picograms.
iii) Above that range, the LCN process used by the FSS can produce electrophoretograms which
are capable of reliable interpretation. There may, of course, be differences between the experts on

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the interpretation, for example as to whether the greater number of amplifications used in this
process has in the particular circumstances produced artefacts and the effect of such artefacts on
the interpretation. Care may also be needed in interpretation where the LCN process is used on
larger quantities than that for which it is normally used. However a challenge to the validity of
the method of analysing Low Template DNA by the LCN process should no longer be permitted
at trials where the quantity of DNA analysed is above the stochastic threshold of 100-200
picograms in the absence of new scientific evidence. A challenge should only be permitted where
new scientific evidence is properly put before the trial court at a Plea and Case Management
Hearing (PCMH) or other pre-trial hearing for detailed consideration by the judge in the way
described at paragraphs 129 and following below.
iv) As we have mentioned, it is now the practice of the FSS to quantify the amount of DNA
before testing. There should be no difficulty therefore in ascertaining the quantity and thus
whether it is above the range where it is accepted that stochastic effects should not prevent
proper interpretation of a profile.
v) There may be cases where reliance is placed on a profile obtained where the quantity of DNA
analysed is within the range of 100-200 picograms where there is disagreement on the stochastic
threshold on the present state of the science. We would anticipate that such cases would be rare
and that, in any event, the scientific disagreement will be resolved as the science of DNA
profiling develops. If such a case arises, expert evidence must be given as to whether in the
particular case, a reliable interpretation can be made. We would anticipate that such evidence
would be given by persons who are expert in the science of DNA and supported by the latest
research on the subject. We would not anticipate there being any attack on the good faith of those
who sought to adduce such evidence (at para.74).
The Court in Reed also emphasised that it was essential that the court exercise its powers of case
management to establish a firm degree of control over the admissibility of low template DNA
evidence. The evidence of the possibilities and the evaluation of the evidence must be clearly set
out in full in the terms in which it was to be given. Where there was a challenge to its
admissibility, the court had to rule on the issue of admissibility in advance, or at the outset of the
trial:
In cases involving DNA evidence:

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i) It is particularly important to ensure that the obligation under Rule 33.3(1)(f) and (g) [of the
Criminal Procedure Rules] is followed and also that, where propositions are to be advanced as
part of an evaluative opinion (.), that each proposition is spelt out with precision in the expert
report.
ii) Expert reports must, after each has been served, be carefully analysed by the parties. Where a
disagreement is identified, this must be brought to the attention of the court.
iii) If the reports are available before the PCMH, this should be done at the PCMH; but if the
reports have not been served by all parties at the time of the PCMH (as may often be the case), it
is the duty of the Crown and the defence to ensure that the necessary steps are taken to bring the
matter back before the judge where a disagreement is identified.
iv) It will then in the ordinary case be necessary for the judge to exercise his powers under Rule
33.6 and make an order for the provision of a statement.
v) We would anticipate, even in such a case, that . much of the science relating to DNA will be
common ground. The experts should be able to set out in the statement under Rule 33.6 in clear
terms for use at the trial the basic science that is agreed, in so far as it is not contained in one of
the reports. The experts must then identify with precision what is in dispute - for example, the
match probability, the interpretation of the electrophoretograms or the evaluative opinion that is
to be given.
vi) If the order as to the provision of the statement under Rule 33.6 is not observed and in the
absence of a good reason, then the trial judge should consider carefully whether to exercise the
power to refuse permission to the party whose expert is in default to call that expert to give
evidence. In many cases, the judge may well exercise that power. A failure to find time for a
meeting because of commitments to other matters, a common problem with many experts as was
evident in this appeal, is not to be treated as a good reason (at para.131).
In Broughton [2010] EWCA Crim 549, a case concerning the consideration of low template
DNA ( LTDNA ), the Court considered the position as to the admissibility of DNA evidence in
cases where the quantity of DNA recovered was so low as to be below the stochastic threshold.
The Court recognised that at very low levels of DNA the dangers presented by the possibility of
stochastic effects are increased. It further recognised that there will be occasions where the
profiles generated are unreliable and/or the probative value more debatable. However it did not
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accept that these were reasons for ruling out LTDNA evidence in such cases altogether. The
Court did recognise that in the appellant's case the profiles had been derived from unqualified
samples of DNA of less than 100pg and that this had raised entirely legitimate grounds for
scientific dispute which the appellant had been right in testing before the judge.
In Weller [2010] EWCA Crim 1085 Lord Justice Thomas reinforced the necessity in every DNA
case for there to be detailed consideration by the parties and the judge of the DNA evidence and
refinement of the issues in dispute. Where there was no dispute that DNA was the DNA of a
particular person, it was essential that that was put before the jury as admitted and agreed expert
evidence. That would enable the jury to perform its essential function of assessing what was in
issue without being troubled by matters that were not.
The Court in Weller also identified the importance of the practical experience of DNA experts in
low template cases. The Court of Appeal held that a court in assessing whether there was a
sufficiently reliable scientific basis for expert evidence to be given and a jury in evaluating
evidence would be entitled to take into account the experience of experts. It was noted that
experts often of necessity relied on unpublished papers and their own practical experience. In a
judgment which was critical of the lack of practical experience of the DNA expert instructed by
the appellant it was observed that an attack on the reliability of low template DNA evidence
(concerning transfer in this case) run purely by reference to published papers and without the
practical experience upon which others had reached a judgment, was likely to fail. Lord Justice
Thomas stated that courts should look to really experienced experts in such cases.
More general principles and practical guidance for the management and presentation of complex
scientific and medical evidence were set down by the Court of Appeal in Henderson [2010]
EWCA Crim 1269; [2010] 2 Cr.App.R. 24. In a hearing of three joined appeals involving shaken
baby syndrome, the Court of Appeal gave detailed guidance on the management of expert
evidence and on the content of the summing up. The Court sought to address the problem of how
to manage expert evidence so that a jury could be directed in a way which would, so far as
possible, ensure that any verdict they reached was justified on a logical basis. Concluding that a
jury could only approach conflicting expert evidence if that evidence was marshalled and
controlled before it was presented to the jury, the Court reinforced the views of the Court
expressed in Reed and emphasised the need for compliance with the r.33 regime contained in the
Criminal Procedure Rules. But Henderson 's greater importance for DNA cases was in relation to
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the Court's comments in regard to the summing up. Whilst specifically directed towards shaken
baby syndrome cases, the Court's obser vations plainly have application to wider cases involving
consideration of complex and developing scientific evidence. Firstly, the Court stated that in
cases where developing medical science was relevant, the jury should be reminded that special
caution was needed where expert opinion evidence was fundamental to the prosecution; and
secondly, the Court felt that a jury needed directions on how to approach conflicting expert
evidence and that the judge should guide them by identifying those reasons which would justify
either accepting or rejecting any conflicting expert opinion on which either side relied.
Conclusion
Though it takes some uncovering, the debate within the forensic community over the use and
reliability of LTDNA still rages,3 especially in the USA.4 There, the admissibility of LTDNA
(sometimes referred to as touch DNA
DNA , low copy DNA
DNA or low-level DNA
DNA ) in criminal
cases has been far more controversial than in the UK. Eminent experts including Dr Bruce
Budowle (Department of Forensic and Investigative Genetics, University of North Texas Health
Science Center, Fort Worth, Texas, USA and ex head of the FBI's DNA laboratory) have spoken
out against the forensic use of LTDNA as evidence in criminal trials 5 . Professors Krane and
Mueller continue to be sceptics, and broadly take the view that fit for purpose 6 should mean
limiting that purpose to the generating of intelligence leads. US courts have recently taken
differing and contradictory approaches to admissibility. The decisions known to the authors have
been from courts equivalent to our Crown Court, not appellate decisions, and they arise from
litigation within the state, as opposed to federal, court system. In a case before a New York
court,7 LCN evidence was ruled admissible, while in California 8 the court was concerned with
the dangers inherent in LTDNA-stating that based on the evidence before the court, that there is
no general acceptance in the scientific community as to the procedures to be used once you're
dealing with a LCN sample, there's no general acceptance as to how to interpret the results that
you would get when you begin with a LCN sample, and there's no general acceptance as to the
statistics that can be applied to those results. The court went on to rule the test results in that
case inadmissible.
In this jurisdiction, challenges to admissibility will now be relatively rare, given the guidance
from the Court of Appeal in Reed. But if LTDNA evidence is to be properly understood by juries
and not given undue weight in a particular case, then lawyers will need to understand the
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limitations and shortcomings of this type of evidence. Indeed not all DNA evidence is equal.
Both at Doughty Street Chambers. They were instructed on behalf of the defence in the
Broughton trials and appeal.

WHY EVOLUTIONARY BIOLOGY IS (SO FAR) IRRELEVANT


TO LEGAL REGULATION
Evolutionary biology - or, more precisely, two (purported) applications of Darwin's theory of
evolution by natural selection, namely, evolutionary psychology and what has been called human
behavioral biology - is on the cusp of becoming the new rage among legal scholars looking for
interdisciplinary insights into the law. We argue that as the actual science stands today,
evolutionary biology offers nothing to help with questions about legal regulation of behavior.
Only systematic misrepresentations or lack of understanding of the relevant biology, together
with far-reaching analytical and philosophical confusions, have led anyone to think otherwise.
Evolutionary accounts are etiological accounts of how a trait evolved. We argue that an account
of causal etiology could be relevant to law if (1) the account of causal etiology is scientifically
well-confirmed, and (2) there is an explanation of how the well-confirmed etiology bears on
questions of development (what we call the Environmental Gap Objection). We then show that
the accounts of causal etiology that might be relevant are not remotely well-confirmed by
scientific standards. We argue, in particular, that (a) evolutionary psychology is not entitled to
assume selectionist accounts of human behaviors, (b) the assumptions necessary for the
selectionist accounts to be true are not warranted by standard criteria for theory choice, and (c)
only confusions about levels of explanation of human behavior create the appearance that
understanding the biology of behavior is important. We also note that no response to the
Environmental Gap Objection has been proffered. In the concluding section of the article, we
turn directly to the work of Owen Jones, a leading proponent of the relevance of evolutionary
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biology to law, and show that he does not come to terms with any of the fundamental problems
identified in this article.
I. INTRODUCTION: THE NEXT INTERDISCIPLINARY WAVE?
Evolutionary biology - or, more precisely, two (purported) applications of Darwin's theory of
evolution by natural selection, namely, evolutionary psychology 1 and what has been called
human behavioral biology
looking for

- is on the cusp of becoming the new rage among legal scholars

interdisciplinary insights into the law.3 Will law and evolutionary biology

have the lasting power and impact of, say, law and economics, or will it go the way of
deconstructionism and Critical Legal Studies (CLS), both of which faded from the scene in
roughly a decade or less? We shall argue that, if the scientific merits have anything to do with it,
the law and evolutionary biology

fad should have a shelf life at least as short as

deconstruction's.
Indeed, with evolutionary biology, we may already have hit the excesses to which the legal
academy is sometimes prone. John McGinnis, for example, tells us that evolutionary biology
supports the vision of human nature accepted by the Founding Fathers, 4 a claim so incredible that
it could not actually be uttered in front of anyone who knew anything about the relevant science. 5
Examples like this, alas, could be multiplied. 6 Not since the heyday of the Critical Legal Studies
infatuation with Richard Rorty and Thomas Kuhn (not to mention Nietzsche!) has another
discipline been so mangled in the pages of the legal journals.7

II. WHY IS THE CAUSAL ETIOLOGY OF BEHAVIOR RELEVANT TO LAW?


Evolutionary accounts of human behavior are accounts of the causal etiology of behavior, that is,
they purport to tell us what the causal origin is of some pattern of behavior we see before us.
Among the most interesting accounts of such behaviors are ones which claim that there was
strong selection pressure for a particular trait, making such traits adaptations, i.e., traits that
enhance reproductive fitness. Consider a selectionist account of rape, like that which has found
some favor among those who think evolutionary biology relevant to legal regulation. 13 Rape
seems to be an inexplicable human behavior until we understand its etiology, so the argument
goes. At an earlier stage of human evolution, what evolutionary psychologists call the

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environment of evolutionary adaptation (EEA),14 human males with a greater propensity to


rape females left more offspring. The tendency to rape females is taken by these evolutionary
psychologists to be a heritable trait. Since raping behavior leads to more offspring, the genetic
disposition to rape will spread through the population. Thus the present day frequency of rape
behavior in the population is the result of natural selection.15

III. JONESS DEFENSE OF THE RELEVANCE OF EVOLUTIONARY BIOLOGY


Jones has been the leading proponent of legal regulation based on a biological approach to
human beings, and the claims he has sometimes made on its behalf are, as we have just seen,
quite extraordinary. Unlike the politically motivated scholars who have jumped on the biology
bandwagon, Jones's professed commitment is only to good science. One would expect, then, that
if anyone confronts the problems we have rehearsed, it would be him. Yet Jones's seems to
sidestep the fundamental problems we have reviewed throughout his work. In fact, we think
Jones employs two misleading rhetorical devices, which obscure the extent to which there is no
good science in the offing for his claims.
The Case of Rape
All the problems we have just canvassed come to the fore in Jones's review 101 of the widely
discredited A Natural History of Rape by Randy Thornhill and Craig Palmer, a book that has
been called a fairy tale by a leading evolutionary biologist 102 ; described by a leading
philosopher of biology as pretend[ing] to scientific rigor, when it has none;

103

and described

by another distinguished historian and philosopher of biology as marked by glaring flaws in


[the] science. 104 Jones, in contrast, finds eight principal strengths in the book, and only two
weaknesses (pertaining to trivia like tone ). Oddly, Jones's discussion of weaknesses
largely turns into a further defense of Thornhill and Palmer - indeed, after talking briefly about
tone and stylistic matters, Jones quickly assures the reader:
I find it clear that many commentators fervently believe that [Thornhill & Palmer's] A Natural
History of Rape must be absolutely riddled with logical and factual weaknesses. I can see how
people, new to the subject, might think this. But it is simply untrue.105
Unfortunately, many of those not new to the subject think this. Herewith Jerry Coyne, an

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evolutionary biologist at the University of Chicago:


Unfortunately, evolutionary psychologists routinely confuse theory and speculation. Unlike
bones, behavior does not fossilize, and understanding its evolution often involves concocting
stories that sound plausible but are hard to testIf evolutionary biology is a soft science, then
evolutionary psychology is its flabby underbellyBut the public can be forgiven for thinking
that evolutionary biology is equivalent to evolutionary psychology. Books by Daniel Dennett,
E.O. Wilson, and Steven Pinker have sold briskly, and evolutionary psychology dominates the
media coverage of the science of evolution.In view of the scientific shakiness of much of the
work, its popularity must rest partly on some desire for a comprehensive scientific explanation
of human behavior. Hence the excitement--and the furor --that has greeted the publication of
Randy Thornhill and Craig Palmer's book. Rape, they argue, was favored by natural selection
to give sexually dispossessed males the chance to have children, or males with mates the chance
to have extra children. Not only does an evolutionary approach [according to the authors]
generate new knowledge that could be used to decrease the incidence of rape; some of the
proposals put forth by individual uninformed by evolutionary theory may actually increase it.
[However] to a scientist, the scientific errors in this book are far more inflammatory than are its
ideological implications. Like so much of evolutionary psychology, Thornhill and Palmer's book
is utterly lacking in sound scientific grounding. Moreover, the authors use rhetorical tricks that
mislead the general reader about their arguments. Once its scientific weaknesses are recognized,
The Natural History of Rape becomes one more sociobiological just-so story - the kind of tale
that evolutionists swap over a few beers at the faculty club. Such stories do not qualify as
science, and they do not deserve the assent, or even the respect, of the public.
So, too, Elisabeth Lloyd, a leading historian and philosopher of biology at Indiana University,
writes:
[Thornhill & Palmer] want to infer information about the selection pressure from the design
of a trait, and to assume that the only relevant evolutionary force shaping the trait was natural
selection. This is not the way evolutionary analysis is typically done. First, Thornhill and Palmer
simply assume that rape behavior constitutes a single, genuine trait. In fact, the standards of
evolutionary biology require that they independently establish this assumption.. [E]stablishing
that rape is a single trait could perhaps be a problem because of its wide variety of types of
occurrences - because, in other words, the majority of rape victims are babies, men, animals,
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postmenopausal woman, etc. In addition, Thornhill and Palmer offer no studies of the inheritance
of raping behavior. One also needs to show that the trait is an adaptation. There are a number of
ways to do thisThornhill and Palmer do not adhere to any [of these standard modes of
confirmation]In fact, nowhere in the book do the authors present evidence regarding either
relevant details of the past evolutionary environment or comparisons with our closest relatives.
Nor do they discuss seriously the possibility that rape itself is not a single trait.[A]ccording to
the usual evolutionary standards of evidence regarding demonstration that a trait is an adaptation,
Thornhill and Palmer fail rather spectacularly. They begin by assuming that rape is a single trait,
and that this trait is an adaptation, and they reason backwards from there. Needless to say, this
undermines their repeated claims that they are doing good science.106
science.106
This appears to be what most biologists and philosophers of biology think, but you would never
know this from reading Owen Jones who assures us that the critics of Thornhill and Palmer
simply hadn't any clue about how biology can influence behavior generally and that it is a
mistake to ignore the basic and scientifically robust knowledge of evolutionary processes that
bears on rape behavior.107 But, as we have argued throughout, there is no such knowledge. This is
the misrepresentation at the center of Jones's work. And because it is a misrepresentation, it
should be fatal to the evolutionary biology and law movement.

IV. CONCLUSION
Research on the evolutionary mechanisms that account for human behavior is an important area
of study, and we hope and expect it will continue. Speculation often plays an important role in
the development of science, but, to date, there has been far more speculation than well-confirmed
hypotheses about cognitive evolution - Jones's misrepresentations notwithstanding. That means,
so far, that unless we are interested in the legal niceties of dairy husbandry and lactose tolerance,
evolutionary biology has nothing to offer to the law.
As Jones himself has noted, the favored perspective on the causes of human behavior often
reflects ephemeral enthusiasms wafted on the politics of the moment.

108

We suspect this

summarizes at least part of the current fascination with law and evolutionary biology, which
permits the patina of science to be enlisted on behalf of various hobby horses of the right: people
are selfish, law can't change everything, nature puts limits on utopian aspirations, and the
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like. Perhaps all of these are true, but right now evolutionary biology offers no support to any of
them. But ephemeral enthusiasms wafted on the politics of the moment have made the
science irrelevant. We hope to remind people that the science is relevant, indeed, crucial, and
that, so far, the needed science is not there.
In time, and starting with far more knowledge than we currently have about human psychology
and social dynamics, evolutionary methods may be applied to human behavior as rigorously as
they are applied to non-behavioral traits and non-human behavior. But in that case, we will
already have detailed knowledge about the plasticity of behavior and thus will find out which
behaviors are difficult or impossible to change the old-fashioned empirical way.

THE JUSTIFIABILITY OF RACIAL CLASSIFICATION AND


GENERALISATIONS IN CONTEMPORARY CLINICAL AND
RESEARCH PRACTICE
This paper argues that racial classification and generalization may sometimes be justified in
clinical treatment and research, in part to ensure better outcomes for the individual patients
subject to such classification and generalization; in part to enable medicine to eliminate the need
for racial categories. But race must be used carefully and sparingly because of the risk to the
individual patient of overgeneralization, and the risk to society of reinforcing a false
understanding of race as a biological category. Even if the use of racial categories in biomedical
research subverts rather than reinforces those categories, that research may well lead to the
recognition of non-racial, genetically based groups, which will be susceptible to harmful, if less
invidious, stereotyping.
1. Race are a biological and social category
There is still a lively scientific and philosophical debate about biology and race, but its terms
have changed significantly in the past few decades. Few scholars defend the once-prevailing
view that races are basic biological kinds, subspecies of homo sapiens. The contemporary debate
largely concerns the question of how to understand the role played by differences in ancestry,

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geographic origins

and associated genetic differences in the social classification schemes of

race and ethnicity.1 Few scholars deny that socially classified races (of course, there is no one,
uniform social classification scheme) differ statistically in some genetic features as a result of
ancestry; but few believe that those differences are large enough to provide biological criteria for
racial classification.2 Nevertheless, those differences may have some predictive or diagnostic
value. Certain symptoms, for example, are far more likely to be due to sickle-cell anaemia in a
patient with African ancestry than in one without such ancestry. But even generalizations with
some value for the patient can be harmful: the physician may place too much reliance on such
generalizations. Moreover, there are reasons to believe that overreliance is likely. First, although
race cannot be regarded as a biological category, humans may be disposed to racial essentialism. 3
Second, even if race has only slight predictive or diagnostic value, humans may rely on
information-processing strategies that give it excessive weight.4
Let me try to state some features of an emerging consensus on racial groups and genetic variation
that may present clinicians and researchers with the ethical challenges of race-based
generalizations in the near future. First, the ancestors of all human beings came from Africa;
second, health-relevant mutations have occurred since the main period of migration from Africa,
in groups that stayed in Africa as well as those that migrated; third, there is more genetic
variation within than between ancestry-based groups; fourth, there is more health-relevant
genetic variation within populations that remained in Africa than within any other migratory
population group; fifth, sociallydefined racial and ethnic groups, in the USA and elsewhere,
correspond only roughly to ancestral groups; sixth; in the USA, an individual believed to have
any African ancestry will be classified for some purposes as black/African American; seventh,
there are significant differences in the incidence of some diseases and responsiveness to some
drugs among self- or observer-classified racial groups; eighth and last, there are significant
differences in many health-relevant social and environmental variables among self- or observerclassified racial groups.5
2. The uses of race in biomedical research and practice
Taken together, these widely accepted claims suggest a number of circumstances in which
clinicians and researchers will have reason to take race into account in the performance of their
professional roles. Consider the clinician first. A self- or doctor-classified black patient

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presents with a collection of symptoms consistent with several underlying conditions for which
the treatment would be very different. Some of these conditions are more common in some
socially defined racial groups than others. Tests for all the conditions are expensive, and the
doctor wants to economize by testing for the most likely first. As Tishkoff and Kidd observe:
[M]any different disorders have similar symptoms, and the process of differential diagnosis can
use ethnicity to prioritize testing according to the most likely etiology. Whether genetic,
infectious, or environmental, the causes of disorders vary among ethnic groups. Economics and
common sense argue that one would attempt to confirm (or reject) the most likely cause before
attempting to confirm a very remote etiology. Taking ethnicity

(genetic ancestry and

sociocultural characterization) into account can be good medical practice .6


It thus seems clear that is some cases, the patient's race should play a role in determining which
test the doctor orders first. It also seems clear that the doctor may give too much weight to race
in setting the order. Thus, she may be likely to test first for a condition with a much higher
incidence in blacks than whites, even if it is a very rare condition, and the baseline odds that a
black patient has this condition are less than the odds that he has one or more of the others. This
error might not reflect racism or even racial overgeneralization, but the widely documented
tendency to ignore base rates.7
Or consider a patient with a known diagnosis and a doctor with a choice of FDA-approved drugs
equally effective in the general population. If the patient is black, self-classified or doctor
classified, and several recent studies have found the drug to be more effective in blacks or to
have fewer side effects, should the doctor take the patient's race into account in deciding which
drug to try first? Of course, she may not be in equipoise because she may not regard the drugs
as equally effective, or the patient may have strong preferences among the possible side effects
of different drugs. But suppose not. It seems clear that there will be some such cases in which it
is reasonable for the doctor to start with drugs that have reported racial differences in
effectiveness. And it also seems clear that the doctor will often give the patient's race too much
weight, relying on a representative heuristic --basing a decision on mere category membership
rather than statistical likelihood--in prescribing a black drug for a black patient.
While recognizing the need to take ethnicity into account, Tishkoff and Kidd warn that one
must be wary of racial profiling and ignorance of the continuous nature of genetic variation and

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high levels of admixture in modern populations, which can result in misclassification and
misdiagnosis . But is in unclear how effectively even the most conscientious practitioner can
bring that caution to bear in avoiding misclassification and misdiagnosis. Thus, consider the
suggestions recently made by Feldman and Lewontin for an appropriately focused preliminary
inquiry into a patient's genotype:
Do you have any African ancestors? If so, do you know from what part of Africa they came? Do
you have any European ancestry? If so, from what part of Europe do they come? Were there any
Ashkenazi Jews among your ancestors? And so on.8
Feldman and Lewontin recognize that detailed information about local geographical origins
will often be unavailable , but they insist that categorical racial assignments are not a substitute
for some kind of more informative history .9 This is undoubtedly true, but not very helpful. A
physician who begins the prescribed genealogical inquiry may not get a yes to any question
but the first. What should she do with the knowledge that her patient has some African ancestry?
If she uses that admittedly very sketchy ancestral information to decide which diagnostic test to
begin with, or which drug to try out first, has she made a categorical racial assignment or
simply done the best she can with the available information?
Now turn to the researcher. Consider a study designed to look for genetic variations that affect
susceptibility to a certain disease or drug side effect. Significant differences in susceptibility
have been found between self-identified blacks and other races. Our researcher wants to get
beyond race, to identify the genetic and/or socio-economic differences that may be responsible
for this difference. She wants to enroll subjects from as many ancestral backgrounds as possible,
particularly African. She is well aware that any contributing genetic variations are likely be
found in some African populations but not others, and that different alleles may affect
susceptibility in African and, say, northern European populations. She is also well aware that
genetic differences may account for only some, or perhaps none, of the differences by race; that
even if various socio-economic variables were controlled for in the recent studies, not all
were, and that the health-relevant effects of American racial attitudes and practices may be hard
to capture in discrete, quantifiable variables. So whom, and how, should our researcher recruit?
If she has an unlimited budget, she could travel around African and other continents, looking for
as many geographically isolated (sub-)populations as she can and trying to find an allele or

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alleles in each of those groups associated with the susceptibility in question. If she does, she can
then test for the various alleles she has identified on her global trek, to see how they interact with
various socio-environmental factors, without relying on the self- or other-classified race of the
subject. But this strategy may not be feasible or adequate, for several reasons. First, she may not
have the money. Second, the condition of interest may only be found in the
racial/ethnic/ancestral stew of the USA or other northern countries. Third, even if she has the
money, and the condition can be found in isolated populations, she may not find any
associations, or only very weak ones, because differences in susceptibility may arise from the
interaction between genetic differences and social and environmental conditions that rarely
obtain in the areas occupied by these isolated populations. And finally, even if she does identify
alleles that she can test for in the general American population without asking about race, she
may still want to know about race.10 That is because, as suggested above, the contribution of
genetic variations may be mediated by racial discrimination and other factors that are not
easily captured as socio-environmental variables. The use of race for this purpose is not fraught
with the same dangers of re-biologizing race as its use for other purposes.
The researcher could recruit by ancestry, but in the case of African Americans of more than a
couple of generations, any ancestry beyond African would almost always be unknown. At the
same time, the use of ancestry rather than race would signal the researcher's interests, and
would permit more targeted recruitment for other groups. But ancestry may still be seen
merely as a euphemism for race and ethnicity, and to the extent it was not, it might give rise to
confusion and misunderstanding: does a descendant of Transvaal Boers have African ancestry?
Does a London resident whose great-grandparents immigrated to England from Trinidad have
European ancestry? Does the scion of an old British banking family that has lived in Hong Kong
for many generations have Asian ancestry? If the answer to questions like these are consistently
no , then it looks like the use of ancestry relies, at least covertly, on race.
Information about ancestry would also not be enough for research that sought to examine social
and environmental effects on disease. Some diseases, such as type II diabetes, that are very rare
in African communities with rural lifestyles and traditional diets, have a disproportionately high
incidence in individuals of African ancestry in mainstream U.S. communities. Obviously,
environment plays a role in these striking differences. Almost as obviously, however, changes in
environment may interact with genetic differences. Not only would it be helpful in studying such
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interactions to know how long the subjects' ancestors had been in the USA, it might be useful to
know if, and how long, they identified themselves as African American.
More broadly, Sankar and Cho provide a nice summary of the ways that race may enter into the
design of genetic research:
[P]harmacogenetic studies may be inventorying the genotypes occurring in human populations
and may ideally sample from a diverse set of populations to attempt to represent a broad range of
genetic differences. Association studies seek genetic differences between those with and without
a particular phenotype. The more genetically similar they are, the easier it is to find the specific
genetic differences that account for differences in phenotype. Race is used as a proxy for genetic
relatedness to control for potential confounding that occurs if the study populations differ
genetically in ways not related to the phenotype in question. In contrast, epidemiological studies
seeking to determine risk factors for disease may want to use race to control for population
stratification, but also as a proxy for environmental exposure, including social interactions (e.g.
people of certain races may be more or less likely to be referred for treatment). In all but the
final example, the research is using race as a way of grouping subjects by similarity or difference
of genetic sequence, which reflects population history.11
The justification for using race as a proxy variable will depend on a variety of considerations,
including how good or indispensable a proxy it is, and how its use as a proxy may affect those
classified as belonging to one race or another. It does not seem problematic to use race as a
vehicle for exploring the range of human genetic variation. Race is used only as a conduit; once
the variations are found, or once they become directly accessible, it is no longer needed. Perhaps
certain racial descriptions would be more effective than others in yielding the maximum
diversity, but this seems a strictly empirical issue. A by-product of such research, however, may
be the association of particular alleles with particular racial descriptions, and then with race
simpliciter, after those findings are disseminated. But such uses can be discouraged by treating
the initial racial categories as strictly pragmatic and heuristic, insufficiently grounded to support
such association claims. Similarly, it does not seem problematic to use race to avoid confounding
between affected and unaffected groups in association studies. Many other variables might serve
as well, or better, but there is no theoretical limit to the number of variables that could be used.
In both cases, the poorer race is as proxy for genetic similarity and difference, the worse it will
serve the researcher's purpose. This may give the researcher an incentive to use more refined
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recruitment categories, e.g. to all, or some subset, of the 64 combinations yielded by the markall-that-apply instructions of the 2000 Census rather than the six of seven underlying categories,
even if considerations of statistical power may favour the latter.
The use of race as a proxy for environmental exposures is more problematic. While this use of
race treats it as a social category, it may make unwarranted assumptions about the experiences of
people in that category.12 Clearly, it would be indefensible to use race as a proxy for low income
or education, especially since it would be easy to assess the latter directly. But just because the
discrimination faced by patients of minority races may be subtle or difficult to detect, it may be
more defensible to use race as a control variable for differences in quality of treatment. Because
there is still much uncertainty about the treatment differences that contribute to health disparities
among socially defined racial groups,13 enquiries about specific treatment differences, e.g.
referrals to specialists, may be a less adequate control that race, at least at present. And while the
psychological stress of perceived racism could be assessed by self-report, there may be reason to
doubt that self-report is more reliable an indicator here than in other areas of protracted exposure
to external stressors. On the other hand, it may be that the level of stress experienced by
individuals of the same social groups varies enormously, and that self-report can help to reduce
the variation.
If it can be psychologically burdensome to attribute similar backgrounds or environments to
people of the same socially defined race, it is far more problematic to attribute similar behaviours
to them, especially risky health behaviour. As I have argued elsewhere, it denies or disrespects
the autonomy of the individual to infer his morally significant behaviour from the average
behaviour of a reference group.14 The offense or insult to autonomy will, of course, vary with the
nature of the behaviour: the more dangerous, immoral or illegal the behaviour, the more
objectionable a race-based inference. The inference that a poor young urban African American
uses crack is far more troublesome that the inference that a poor young rural African American
eats a high-fat diet (a matter of exposure as much as behaviour), although the latter inference
may be as unwarranted and dispensable as the former. The offence or insult will also vary with
the nature of the group. It is more problematic to make an inference based solely on the baseline
frequency of the behaviour in a random collection of people (e.g. in the much-discussed
gatecrasher hypothetical, the rodeo management claims that it is warranted in inferring from the
very small proportion of paying spectators that that any given spectator is a gatecrasher, in the
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absence of other evidence), than to make an inference based on causal assumptions about the
psychology or behaviour of a stigmatized group. The worst possible outcome, in terms of
medical accuracy as well as social justice, would be the *L.P. & R. 222 over-attribution of
health disparities to differences in behaviour, and the over-attribution of such behavioural
differences to genetic differences.
3. Racial generalizations and individual patients
What harm is done by the kind of threshold racial generalizations likely to be made in the
clinical practice of the next generation, where race serves as a proxy for an increasing number of
differences in disease and drug susceptibility whose genetic causes have yet to be determined? It
may be instructive, as my colleague Robert Wachbroit suggests, to compare the physician's use
of family history. No one (or almost no one) objects to inquiries about the health and disease
histories of one's parents, siblings and other close relatives. Those histories have, or are thought
to have, considerable predictive value, and are the basis for many decisions about whether, how,
or how often to test the patients for various conditions, and about whether to prescribe certain
drugs and other treatments presymp-tomatically. These histories are partial proxies for genetic
similarity (partial because diseases may be caused or exacerbated by risky behaviours that
may be transmitted by nurture more than nature, and may also be caused or exacerbated by a
shared environment, e.g. by exposure to pathogens or by patterns of family interaction). But even
if a doctor places excessive reliance on these proxies, and thereby harm his patient in large or
small ways, he does not appear to slight or disrespect him--his inferences largely concern the
biological transmission of disease-associated genes.
No responsible doctor would rely on race, however assessed, to the same extent. But as discussed
earlier, the patient's self- or doctor-classified race may place a role in some testing and treatment
decisions. Are these uses of race more objectionable than similar uses of family history? Are
errors made by overreliance more objectionable, wronging the patient in a way that overreliance
on family history does not? Clearly, in individual cases, an overreliance on family history can be
almost as oppressive and dangerous as an overreliance on race or ethnicity. The assumption that
the apple never falls far from the tree can be demeaning and harmful when it concerns a
disposition to risky health behaviour or bad eating habits, especially when accompanied by
scepticism about the patient's self-reported behaviour or diet. Such an assumption may be

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especially demeaning to an individual who has made a concerted effort to avoid the excesses of
his kin or associates. It would be less demeaning, but potentially as harmful, to assume that an
individual will display the same biomedical susceptibilities as his kin. There is no disrespect to
his autonomy but a considerable threat to his health in assuming that he will have the same
genetic susceptibilities to disease as his parents or siblings, or even the same environmental
exposures.
Both the insult and the potential injury may be magnified when the doctor relies on race or
ethnicity, in contrast to family history. Few assumptions more demeaning than the assumption
that an individual from a stigmatized group will, whatever the details of his personal history,
behave in stereotypical ways, especially when the expected behaviour is foolish or destructive.
And there are few assumptions more harmful from a medical perspective than the expectation
than an individual from a stigmatized group will have the typical genetic susceptibilities and
environmental stresses of the members of that group, given the variation in ancestry and social
circumstances within the group.
The recognition that certain racial generalizations can be harmful in the context of medical
treatment still leaves two difficult questions: first, does the physician make such a harmful
generalization if she decides to prescribe a particular drug or test indicated for patients of a
particular race? second, how should the harm of such a generalization be balanced against the
benefits to the patient that may accrue from its use?
To start with the first: the research that led the FDA to approve the use of Bildil for black patients
did not reveal anything about the causal mechanisms underlying the racial correlations. Future
research is likely to uncover similar race-specific efficacy with no more insight into the
underlying mechanisms.15
mechanisms.15 The FDA, the drug companies, and the prescribing physicians may
remain ignorant or agnostic about the reason the drug works better for those races; they need not
attribute that effect to any particular factors, whether genetic, biological, environmental, or
sociocultural. This seems to make the prescription of the drug innocent of any offensive
assumption, at least if the membership of the patient in the racial group is not in question.
At the same time, research that aims to eliminate race as a medical category by identifying the
underlying conditions it is a proxy for--an allele, an environmental insult, or a certain kind of
stigmatization--may invite the use of such assumptions about causal mechanisms as testable

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hypotheses. Thus, the reason why the drug works better for blacks as a group may be that they
have a higher frequency of a particular allele, more frequent exposure to an environmental toxin,
less healthy diets or higher incidence of unhealthy behaviour. Testing such hypotheses does not
seem offensive, even if it may be awkward, when prompted by significant statistical associations
and motivated by a desire to dispense with race as a proxy variable. If the research is successful
at identifying the source or sources of the association, it should reduce the use of racial
generalization by yielding a means of ascertaining whether the patient has the specific allele,
exposure or disease variant.
But the basis for prescribing a race-specific drug or test may not always be so innocent. It may
be widely believed in the medical community that a particular cause or mechanism underlies the
correlation, and physicians may assume that all their patients of the race in question have that
underlying condition. If the source of the different reaction to the drug is a genetic factor like a
predisposition to obesity or high blood pressure; an environmental condition associated with
poverty, like lead exposure or a sociocultural factor like unhealthy diet or risky behaviour, the
use of that assumption to prescribe the drug or test may be problematic in its reliance on an
unflattering medical stereotype. Moreover, once the causal condition is established, the process
of exempting individual patients may be awkward or painful for them. A black patient may be
asked to take a genetic test or give a social history not requested of white patients. He may see it
as being asked to prove that he does not fit a stereotype, an exercise that may be painful because
of its association with efforts to exclude himself from more invidious stereotypes. And if the test
or history takes time that the physician cannot spare, or imposes costs that the patient cannot pay,
it may be that the physician ends up relying on the generalization. Indeed, such reliance might be
best for the patient if the costs of exclusion are significant, and the harm from a mistaken
assumption minor. But this recourse to racial generalization would still be troubling.
4. Racial generalizations, racial groups, and the public perception of race
One reason that even relatively benign racial generalizations in medical practice may be
troubling is that they will sometimes reinforce the notion of race as a biological category. Of
course, the use of the generalization does not require such a belief--one can regard races as fluid
social groups and still believe that membership in them is correlated closely enough with some
biological characteristics to guide certain preliminary steps in diagnosis or prescription. But
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research suggests that we may be genetically predisposed to racial essentialism--to seeing certain
visible features as reliable indicators of essential or important internal characteristics. 16 For
many doctors, unschooled in the vagaries of racial classification, the repeated use of race-based
generalizations, based on nothing more than useful but ungrounded associations, may reinforce a
racial essentialism they have never questioned. And the widespread use of such generalizations
in the medical community may thereby contribute to the rebiologization of race.17
The danger, then, is not merely in the use of race as an interim category, to be discarded once we
identify a sufficiently large number of medically relevant alleles.
5. Non-racial genetic stereotyping
It is possible that most of the medical relevant alleles identified by genomic medicine will have
too little association with sociallydefined racial groups to support racial stereotyping and
generalization, particularly if they could be grouped into a small number of distinct genetic
profiles that have only weak correlations with race. But the development and use of genetically
based groups might raise significant problems of stereotyping and overgeneralization even if it
reduced reliance on racial categories. The promise of a completely individualized medicine is
illusory. As Parker, et al. point out:
While its proponents initially claimed that personalized medicine would replace the onesize-fits-all

paradigm of drug development and usage, it now seems more likely that

pharmacogenetics will tend to direct drugs toward genetically-defined groups ; if you like, offthe-peg medicine rather than individually bespoke medicine.23
At best, pharmacogenetics can improve the group generalizations on the basis of which drug
development and treatment decisions are made. It cannot hope to eliminate group-based
generalizations altogether, but it can replace more stigmatizing and less accurate generalizations
with more benign and clinically useful ones. On the other hand, the greater accuracy of genetic
profiling,
profiling, and its greater acceptability, compared to racial profiling,
profiling, could easily lead to
overreliance. Physicians reluctant to talk to their patients for personal or financial reasons will
have a better excuse for doing less talking. They may find it easy to convince themselves that the
information yielded by genetic testing makes their patients' own observations or experiences less
important.
Moreover, although medical generalizations based on non-racial genetic groups may be less
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inaccurate and invidious, they will still lend themselves to exaggeration and caricature. Consider
the careless use of such recent biopsychological categories as the Type A personality . To be
subject to popular stereotyping, of course, a genetic profile must have at least some rough
correspondence to observable health and health-related characteristics. But I suspect we already
have a large number of informal stereotypes, e.g. the otherwise healthy individual chronically
afflicted with mild or minor indispositions, which are likely to acquire spurious credibility by
their association with genetic types . While physicians may resist such crude stereotyping, a
generation of research on decision making under uncertainty suggests that professional
overreliance on genetic profiling will only be more esoteric, not less significant.24
The extent to which genetically based grouping is benign and clinically useful will depend on
many other factors besides their overlap with racial categories and their susceptibility to
stereotyping and overgeneralization. Among other factors will be the correlations that are found
between various alleles associated with disease susceptibility and drug responsiveness. Genetic
grouping will be more benign to the extent that they are NOT generally predictive of health or
treatability; to the extent that individuals with some susceptibilities lack others, so that the
possession of any single allele cannot serve as a proxy for poor overall health prospects. Those
genetic groups will be more clinically useful if they are more predictive, and if their interactions
with other genetic variations (epigenetics) do not preclude reliable generalizations about
particular health effects.

CONCLUSION AND SUGGESTIONS


Research on the evolutionary mechanisms that account for human behavior is an important area
of study, and we hope and expect it will continue. Speculation often plays an important role in
the development of science, but, to date, there has been far more speculation than well-confirmed
hypotheses about cognitive evolution - Jones's misrepresentations notwithstanding. That means,
so far, that unless we are interested in the legal niceties of dairy husbandry and lactose tolerance,
evolutionary biology has nothing to offer to the law.
As Jones himself has noted, the favored perspective on the causes of human behavior often
reflects ephemeral enthusiasms wafted on the politics of the moment. We suspect this
summarizes at least part of the current fascination with law and evolutionary biology, which
permits the patina of science to be enlisted on behalf of various hobby horses of the right: people
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are selfish, law can't change everything, nature puts limits on utopian aspirations, and the
like. Perhaps all of these are true, but right now evolutionary biology offers no support to any of
them. But ephemeral enthusiasms wafted on the politics of the moment have made the science
irrelevant. We hope to remind people that the science is relevant, indeed, crucial, and that, so far,
the needed science is not there.
In time, and starting with far more knowledge than we currently have about human psychology
and social dynamics, evolutionary methods may be applied to human behavior as rigorously as
they are applied to non-behavioral traits and non-human behavior. But in that case, we will
already have detailed knowledge about the plasticity of behavior and thus will find out which
behaviors are difficult or impossible to change the old-fashioned empirical way.

Though it takes some uncovering, the debate within the forensic community over the use and
reliability of LTDNA still rages, especially in the USA. There, the admissibility of LTDNA
(sometimes referred to as touch DNA
DNA , low copy DNA
DNA or low-level DNA
DNA ) in criminal
cases has been far more controversial than in the UK. Eminent experts including Dr Bruce
Budowle (Department of Forensic and Investigative Genetics, University of North Texas Health
Science Center, Fort Worth, Texas, USA and ex head of the FBI's DNA laboratory) have spoken
out against the forensic use of LTDNA as evidence in criminal trials. Professors Krane and
Mueller continue to be sceptics, and broadly take the view that fit for purpose should mean
limiting that purpose to the generating of intelligence leads. US courts have recently taken
differing and contradictory approaches to admissibility. The decisions known to the authors have
been from courts equivalent to our Crown Court, not appellate decisions, and they arise from
litigation within the state, as opposed to federal, court system. In a case before a New York court,
LCN evidence was ruled admissible, while in California the court was concerned with the
dangers inherent in LTDNA-stating that based on the evidence before the court, that there is no
general acceptance in the scientific community as to the procedures to be used once you're
dealing with a LCN sample, there's no general acceptance as to how to interpret the results that
you would get when you begin with a LCN sample, and there's no general acceptance as to the
statistics that can be applied to those results. The court went on to rule the test results in that
case inadmissible.

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In this jurisdiction, challenges to admissibility will now be relatively rare, given the guidance
from the Court of Appeal in Reed. But if LTDNA evidence is to be properly understood by juries
and not given undue weight in a particular case, then lawyers will need to understand the
limitations and shortcomings of this type of evidence. Indeed not all DNA evidence is equal.
Both at Doughty Street Chambers. They were instructed on behalf of the defence in the
Broughton trials and appeal.

BIBLIOGRAPHY

Web Sources:

www.wales.nhs.uk/publications/men-health-e.pdf

www.nimhe.csip.org.uk

www.opsi.gov.uk/Acts/acts2005/ukpga_20050013_en_1

www.opsi.gov.uk/ACTS/acts2005/ukpga_20050009_en_2#pt1-pb2-l1g2

www.niace.org.uk/research/HDE/Projects/NIMHE.htm
www.lexisnexis.com
www.westlawindia.com
www.heinonline.com
Scholarly Articles:

National Academy of Sciences of the USA, Strengthening Forensic Science in the United
States: A Path Forward (National Academies Press: Washington DC, 2009).

Editorial, Science in Court (2010) 464 Nature 325

M. Phipps and S. Petricevic, The Tendency of Individuals to Transfer DNA to Handled


Items (2007) 168 Forensic Sci Int 162.

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T. Caragine, R. Mikulasovich, T. Tamariz, E. Bajda, J. Sebestyen, H. Baum and M. Prinz,


Validation of Testing and Interpretation Protocols for Low Template DNA Samples
Using AmpFlSTR Identifiler (2009) 50 Croat Med J 250.

Editorial, Who Speaks Up for Science (2010) 50 Science & Justice 111

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