Criminal Law

Social and Legal Concerns as America Expands into the Brain-Computer Interface

January 31, 2017
Criminal Law, Health, New Technology

Daniel Baum, MJLST Staffer

A great deal of science and technology has been emerging in the field of the brain-computer interface, the connection between the human brain and machines. In addition to forming effective prosthetics and helping doctors repair brain damages, technology in the brain-computer interface has recently allowed a man to operate a prosthetic hand and an electric wheelchair with his mind using only a microelectrode array surgically implanted into his arm’s nerve fibers. The professor who developed the implant also experimented on himself, and made himself able to see in the dark: with an implant into the median nerve of his wrist, he could use the electric feedback from an ultrasonic range-finding sensor mounted on his hat to guide himself around a room blindfolded. Since this technology is still in its experimental stages, American law does not have much to say about human enhancements. Already, dangerous medical devices can lead to confusing and unfair trials, and it’s easy to imagine courtrooms getting even more confusing and unfair as medical devices progress into the brain-computer interface. This technology is close enough that the implementation of legal changes now could help this emerging technology develop in ways that will balance minimizing harm with utilizing its enormous potential to make people better.

Current laws impose no affirmative duty on manufacturers to allow pacemaker users access to their own data, and the top five manufacturers do not allow patients to access the data produced by their own pacemakers at all. As we begin to view machines as extensions of ourselves, in order to maintain our personal autonomy, we will need to be able to control who accesses the data we produce. This calls for an already necessary legal change: a right to access and control access to the data generated by objects that are effectively extensions of ourselves.

As this technology moves from healing disabled humans to giving normal people supernormal powers, its use will become much more widely pursued—“the disabled may prove more abled; we may all want their prostheses.” If other job applicants are capable of so much more because of their built-in brain-computer interface technology, employers may discriminate against natural, unenhanced humans. To protect people who cannot or who choose not to install machinery in the brain-computer interface, for financial, medical, ethical, religious, or any reasons, an independent statutory scheme with the purpose of eliminating discrimination both for and against individuals with brain-computer interface devices would not disturb the currently established disability protocols in the Americans with Disabilities Act and could be amended to account for each new form of machinery.

Another frightening concern arises once these enhancements become capable of connecting to the internet: if someone hacks into somebody else’s machinery and makes that person damage something or someone, who will be criminally and civilly liable for the damage? Since American law does not have much to say about human enhancements, no defense has been defined for the person who was hacked into and forced to cause harm. The person whose body actually committed the act could try pleading the affirmative defense of duress—that is, the defendant was compelled to commit the crime against his or her will or judgment—but the U.S. Supreme Court held in 2014 in Rosemond v. United States that “circumstances that traditionally would support a necessity or duress defense” require proof that the defendant “could have walked away.” The hacker took away the defendant’s control of his or her own body, making it impossible for the defendant to have walked away. To solve this problem, states that recognize the defense of insanity could amend their statutes to allow defendants who were mentally unable to control their own bodies due to hacking to plead the affirmative defense of insanity. States that conform to the Federal Rules of Criminal Procedure would then order the defendant to be mentally examined by an expert who could determine and tell the court to what extent the defendant was in control of his or her own mind and body at the time of the crime. The defendant could them implead the hacker to shift the liability for committing the crime. However, since the insanity defense is a mental health defense and brain-computer interface devices aren’t necessarily related to mental health, states may want to define a new affirmative defense for being hacked into that follows a similar procedure but that better fits the situation and that doesn’t carry the stigma of mental disorder.

New machinery in the brain-computer interface is exciting and will allow us both to heal physical and mental damages and to develop supernormal powers. Legal changes now could help this emerging technology develop in ways that will balance minimizing harms like invasions of privacy, discrimination, and hacking with utilizing its enormous potential to make people better.

Culpability in Criminal Law and the Emerging Field of Neuroscience

February 26, 2016
Criminal Law, Neuroscience

Daniel Mensching, MJLST Staffer

Criminal law has long held that people are accountable for their behavior and that most behavior is intentional and conscious. This is necessary for the legal system to determine culpability and therefore warrant punishment. In his article Blaming the Brain, Seven K. Erickson explores how the still young field of cognitive neuroscience is beginning to challenge traditional notions of free will independent action and potential legal consequences of this shift in understanding. While the implications for emerging understandings of neuroscience are far-reaching and delve into areas such as psychology and philosophy, viewing human actions as mechanical and absent of free will raises serious questions in the field of law as well, especially criminal law.

Cognitive neuroscience, though still in its infancy, holds the potential to explain all human behavior as a result of involuntary processes occurring within the brain. According to Erickson, cognitive neuroscience leads us to the view that “we are a passive audience to the electrical cadence of neuronal firings buried deep within our heads” and that “what we perceive as the mind is nothing more than a cognitive adaptation established by our brains to allow higher-ordered behavior.” This view is entirely incompatible with the notion of human agency that holds that people evaluate their environments and make choices.

Many exceptions are already made, both in the legal system and in general, for people with certain mental defects. While some defects are obvious, the list of recognizable mental disorders is growing rapidly. The number of official diagnosable mental disorders has increased by almost 300% in the past 50. Behaviors that were once considered indicative of poor character are now considered medical disorders. What could have been considered laziness or immaturity 50 years ago can now be treated with a prescription for amphetamines, a drug considered addictive and dangerous and is therefore illegal for the general public. Many of these diagnoses are made based on inherently subjective criteria. Criminal law already contains the affirmative defense of insanity, and cognitive neuroscience begs the question of how and to what extent neurological conditions should influence culpability and punishment.

But the criminal system is not aimed solely at punishing for the sake of justice. Another main goal of criminal law is to reduce crime in society, both by deterring would-be criminals and by reducing recidivism. While understanding human behavior as simple mechanics may make punishment seem irrational, cognitive neuroscience aims to ameliorate the criminal justice system by understanding the causes of criminal behavior and therefore being able to effectively predict crime and rehabilitate offenders.

Warrant Now Required For One Type of Federal Surveillance, and May Soon Follow for State Law Enforcement

December 16, 2015
Constitutional Law, Criminal Law, Cyber Security, Data

Steven Graziano, MJLST Staffer

As technology has advanced over the recent decades, law enforcement agencies have expanded their enforcement techniques. One example of these tools is cell-site simulators, otherwise known as sting rays. Put simply, sting rays act as a mock cell tower, detect the use of a specific phone number in a given range, and then uses triangulation to locate the phone. However, the recent, heightened awareness and criticism directed towards government and law enforcement surveillance has affected their potential use. Specifically, many federal law enforcement agencies have been barred from their use without a warrant, and there is current federal legislation pending, which would require state and local law enforcement agents to also gain a warrant before using a sting ray.

Federal law enforcement agencies, specifically Immigration, Secret Service, and Homeland Security agents must obtain search warrants before using sting rays, as announced by the Department of Homeland Security. Homeland Security’s shift in policy comes after the Department of Justice made a similar statement. The DOJ has affirmed that although they had previously used cell-cite simulators without a warrant, going forward they will require law enforcement agencies gain a search warrant supported by probable cause. DOJ agencies directed by this policy include the FBI and the Drug Enforcement Administration. This shift in federal policy was largely in response to pressures put upon Washington by civil liberties groups, as well as the shift in American public’s attitude towards surveillance generally.

Although these policies only affect federal law enforcement agencies, there have also been steps taken to expand the warrant requirement for sting rays to state and local governments. Federal lawmakers have introduced the Cell-Site Simulator Act of 2015, also known as the Stingray Privacy Act, to hold state and local law enforcement to the same Fourth Amendment standards as the federal government. The law has been proposed in the House of Representatives by Rep. Jason Chaffetz (R-Utah) and was designated to a congressional committee on November 2, 2015, which will consider it before sending it to the entire House or Senate. In addition to requiring a warrant, the act also requires prosecutors and investigators to disclose to judges that the technology they intend to use in execution of the warrant is specifically a sting ray. The proposed law was partially a response to a critique of the federal warrant requirement, name that it did not compel state or local law enforcement to also obtain a search warrant.

The use of advanced surveillance programs by federal, state, and local law enforcement, has been a controversial subject recently. Although law enforcement has a duty to fully enforce that law, and this includes using the entirety of its resources to detect possible crimes, it must still adhere to the constitutional protections laid out in the Fourth Amendment when doing so. Technology chances and advances rapidly, and sometimes it takes the law some time to adapt. However, the shift in policy at all levels of government, shows that the law may be beginning to catch up to law enforcement’s use of technology.

Apple’s Bark is Worse than its Bite

October 5, 2014
Criminal Law, Cyber Security, Internet, Privacy

Jessica Ford, MJLST Staff

Apple’s iPhone tends to garner a great deal of excitement from its aficionados for its streamlined aspects and much resentment from users craving customization on their devices. Apple’s newest smartphone model, the iPhone 6, is no exception. However, at Apple’s September 9, 2014 iPhone 6 unveiling, Apple announced that the new iOS 8 operating system encrypts emails, photos, and contacts when a user assigns a passcode to the phone. Apple is unable to bypass a user’s passcode under the new operating system and is accordingly unable to comply with government warrants demanding physical data extraction from iOS 8 devices.

The director of the FBI, James Comey, has already voiced concerns that this lack of access to iOS 8 devices could prevent the government from gathering information on a terror attack or child kidnappings.

Comey is not the only one to criticize Apple’s apparent attempt to bypass legal court orders and warrants. Orin Kerr, a criminal procedure and computer crime law professor at The George Washington University Law School, worries that this could essentially nullify the Supreme Court’s finding in Riley v. California this year which requires the police to have a warrant before searching and seizing the contents of an arrested individual’s cell phone.

However, phone calls and text messages are not encrypted, and law enforcement can gain access to that data by serving a warrant upon wireless carriers. Law enforcement can also tap and monitor cellphones by going through the same process. Any data backed to iCloud, including iMessages and photos, can be accessed under a warrant. The only data that law enforcement would not be able to access without a passcode is data normally backed up to iCloud that still remains on the device.

While security agencies argue otherwise, iOS 8 seems far from rendering Riley’s warrants useless. Law enforcement still has several viable options to gain information with a warrant. Furthermore, the Supreme Court has already made it clear that it does not find that the public’s interest in solving or preventing crimes outweighs the public’s interest in privacy of phone data, even when there is a chance that the data on a cell phone at issue will be encrypted once the passcode locks the phone,

“[I]n situations in which . . . an officer discovers an unlocked phone, it is not clear that the ability to conduct a warrantless search would make much of a difference. The need to effect the arrest, secure the scene, and tend to other pressuring matters means that law enforcement officers may well not be able to turn their attention to a cell phone right away . . . . If ‘the police are truly confronted with a ‘now or never’ situation,’ . . . they may be able to rely on exigent circumstances to search the phone immediately . . . . Or, if officers happen to seize a phone in an unlocked state, they may be able to disable a phone’s automatic-lock feature in order to prevent the phone from locking and encrypting data . . . . Such a preventive measure could be analyzed under the principles set forth in our decision in McArthur, 531 U.S. 326, 121 S.Ct. 946, which approved officers’ reasonable steps to secure a scene to preserve evidence while they awaited a warrant.” (citations omitted) Riley v. California, 134 S. Ct. 2473, 2487-88 (2014).

With all the legal recourse that remains open, it appears somewhat hasty for the paragon-of-virtue FBI to be crying “big bad wolf.”

Are Warrantless Cell Phone Searches Constitutional?

May 16, 2014
Criminal Law, Law Enforecement

Jennifer Warfield, MJLST Staff

In “Constitutionalizing Email Privacy by Information Access” from Volume 9, Issue 1 of the Minnesota Journal of Law, Science, & Technology, Manish Kumar discussed the unique Fourth Amendment issues raised by governmental access to electronic communications, specifically emails. Similar privacy issues are now being analyzed and reviewed by the Supreme Court in the context of warrantless searches of cell phones by law enforcement in two cases: Riley v. California, No. 13-132 and United States v. Wurie, No. 13-212.

The courts have traditionally allowed warrantless searches pursuant to the Search of Person Incident to Arrest (SPIA) exception to the Fourth Amendment. Under this doctrine a police officer may search an arrestee’s person incident to the arrest and seize and search any personal property in his or her possession at the time of the arrest. Such searches are justified under the theory that they protect officers by allowing them to search for weapons and preserve evidence. The Fourth, Fifth, Seventh, and Tenth Circuits have upheld warrantless searches of cell phones under the SPIA doctrine on the grounds that a cell phone is analogous to a container like a backpack or wallet, which the Supreme Court has long deemed searchable. Other courts have held that modern cell phones cannot be compared to traditional containers given the vast amount of sensitive data contained within them, and that less intrusive measures can be used in the name of data preservation such as Faraday Bags or “airplane mode,” which both prevent internet signals from reaching a phone to prevent remote wiping.

The specific issues before the Supreme Court in Riley and Wurie are respectively: 1) whether the Defendant’s Fourth Amendment rights were violated when he was convicted for attempted murder based on the police’s search of his smartphone after he was pulled over for having an expired auto registration; and 2) whether evidence gathered after the police inspected a drug dealer’s call log should have been thrown out by the federal appeals court in Boston. These cases provide the Supreme Court an opportunity to clarify the meaning of the Fourth Amendment in the age of smartphones, and will shed light on how similar devices like tablets and laptops will be treated by courts and police officers in the future.

Crime and Treatment: A Creative Drug Policy

February 3, 2014
Criminal Law, Drug Policy

by Shirshira Kother, MJLST Staff

In our society, it seems as though drug addiction is a commonality for prison inmates. It tends to play some role in every crime scene and horrific headline that we hear about. Drugs have been a driving force for many criminals because it significantly alters their decision-making and ultimately affects their actions. While there is no mistake that those who act under the influence of drugs will be subject to justice system, there perhaps a better way to discourage this behavior by redefining addiction.

An article titled Why Neuroscience Matters for Rational Drug Policy in volume 11 of the Minnesota Journal of Law, Science and Technology, explores the possibility of addiction as a neurological problem that may be solved by specific treatment to rewire an individual’s brain. David M. Eagleman, Mark A. Correro & Jyotpal Singh analyze how consistent use of chemical substances destruct areas of the brain that control voluntary actions.

David M. Eagleman, Mark A. Correro & Jyotpal Singh analyze how consistent use of chemical substances destruct areas of the brain that control voluntary actions. The article continues to explain how policy regarding drug use and addiction should be more geared toward treating those affected by the condition versus punishing them for becoming addicted. They suggest that chronic users may not actually continue their use on their own accord but are driven their brains. Chemical abuse can restructure the functions within the brain and lead many criminals to act out of deprivation of the drug. This concept has come across several arguments, most of which revolve around the policy effect of allowing criminals to “blame their brains” for their actions. The authors however suggest that the mere explanation of chemical abuse and how its effects have led to a crime does not, relieve the individual of their responsibility. It allows the system to better rehabilitate the individual.

The process suggested would mirror the procedure used to treat an aliment in order to restore one’s health. The use of drugs is associated with positive stimulus and once the brain has been repeated exposed to a chemical, it becomes dependent on that stimulus to function and destroys behavior inhibition, which often leads to impulsivity. Depriving it of the substance can cause severe side affects to the individual and drive them to act without thought or reason. The article introduces two new radical methods in rehabilitating these individuals. Most medications used to treat addicts either reduce the positive response the drug elicits or counter acts the reaction by producing a negative one. By using real time neuroimaging, doctors can better understand cues associated with craving and try to override the responses to those cues. A second suggested method is a vaccine to block the receptors related to the positive response addicts experience when using drugs. This vaccine would not allow the addict to get high thus reducing their use.

While still fairly new, these two innovations can change rehabilitation of those incarcerated from chemical use and abuse related crimes. Perhaps, the biggest concern is whether these options will have long-term positive effects and keep the individuals off of drugs. If successful, this method would not only remove potentially dangerous individuals from society but also groom them to rejoin the world: chemical free.

Problems with Forensic Expert Testimony in Arson Cases

December 6, 2013
Criminal Law

by Becky Huting, UMN Law Student, MJLST Staff

In MJLST Volume 14, Issue 2, Rachel Diasco-Villa explored the evidentiary standard for arson investigation. Ms. Diasco-Villa, a lecturer at the School of Criminology and Criminal Justice at Griffith University, examined the history of arson-investigation knowledge, and how the manner in which it is conveyed in court can mislead, possibly leading to faulty conclusions and wrongful convictions. The article discussed the case of Todd Willingham, who was convicted and sentenced to death for setting fire to his home and killing his three children. Willingham had filed numerous unsuccessful appeals and petitions for clemency, and several years after his execution, a commission’s investigation concluded that there were several alternative explanations as to the cause of the fire, and that neither the investigation nor the evidence testimony were compliant with existing standards.

During the trial, the prosecutor’s fire expert, a Deputy Fire Marshall from the State Fire Marshall’s Office, testified as to why he believed the fire was set by arson. Little science was used in his explanation:

Heat rises. In the winter time when you are going to the bathroom and you don’t have any carpet on the rug. . .the floor is colder than the ceiling. It always is. . . So when I found that floor is hotter than the ceiling, that’s backwards, upside down. . .The only reason that the floor is hotter is because there was an accelerant. That’s the difference. Man made it hotter or woman or whatever.

The expert went on to explain that fire investigations and fire dynamics are logical and common sense, such that jurors themselves could evaluate with their sense and experiences to arrive at the same conclusions. All samples taken from “suspicious” areas of the house tested negative for any traces of an accelerant. The expert explained the chemical results: “And so there won’t be any — anything left; it will burn up.”

Fire and arson investigation has traditionally been experiential knowledge, passed down from mentors to their apprentices without experimental or scientific testing to validate their claims. Fire investigators do not necessarily have scientific training, nor is it necessary for them to hold a higher educational degree beyond a high school diploma. The National Academy of Science released a report in 2009 stating that the forensic sciences needed standardized reporting of their findings and testimony, and fire and arson investigation was no exception. The International Association of Arson Investigators has pushed back on such guidance, having filed an amicus brief arguing that arson investigation is experience-based and not novel or scientific, so it should not be subjected to higher evidentiary standards. This argument failed to convince the court, which ruled that fire investigation expertise should be subject to scrutiny under the Daubert standards that call for exacting measures of reliability.

Ms. Diasco-Villa’s note also considers the risk of contextual bias and overreach, should these experts’ testimony be admitted. In the Willingham case, the expert was given wide latitude as to his opinion on the defendant’s guilt or innocence. He was allowed to testify as to his belief that the suspect’s intent “was to kill the little girls” and identify the defendant by name as the individual who started the fire. Under Federal Rules of Evidence section 702, expert witnesses are given a certain degree of latitude in stating their opinions, but the author was concerned with the risk of jurors giving extra weight to this arguably overreaching testimony by expert witnesses.

She concluded by presenting statistics concerning the vast number of fires in the United States each year (1.6 million), and the significant quantity that are classified as having been intentionally set (43,000). There is a very real potential that thousands of arrests and convictions each year may have relied on overreaching testimony or evidence collected and interpreted using a defunct methodology. This state of affairs in arson investigations warrants continued improvements in forensic science techniques and evidentiary standards.

Subpeona of Data Provided by Research Participants under Confidentiality Agreement Raises Concerns

April 2, 2013
Bioethics, Criminal Law

by Sabrina Ly

On February 25, 2013, an article was published in The Dartmouth describing the implementation of its Committee for the Protection of Human Subjects. The purpose of the committee is to answer ethical questions and review proposals regarding human subjects participating in research at Dartmouth College. The committee is comprised of experts and community members “who analyze the risk posed to participants by Dartmouth-affiliated researchers’ studies.” The timing of its creation could be coincidental, but may have been in response to legal action taken against Boston College subpoening confidential data provided by research participants in the “Belfast Project” in 2012.

Prior to interviews taking place as part of the Belfast Project, researchers promised interviewees that their identities and information contained in the transcripts would not be released until after their deaths. However, upon discovering the existence of the transcripts, British law enforcement worked with the U.S. Department of Justice to subpoena the transcripts to use in its criminal proceedings. This raised significant ethical issues pitting the needs of law enforcement against the need for participant confidentiality in certain research that benefits the public.

The problem of subpoenaing confidential human research information is further elaborated in an article recently published in Issue 14.1 of the Minnesota Journal of Law, Science and Technology. In Certificates of Confidentiality: Protecting Human Subject Research Data in Law and Practice, Wolf, et al., discuss the importance of enforcing a certificate of confidentiality in human research studies. Confidentiality in order to obtain information from human subjects during research is vital to progression and understanding in health, science and many other fields. Often research requiring a promise of confidentiality involves difficult and controversial subjects that would be nearly impossible to study without an assurance of confidentiality.

A certificate of confidentiality encourages individuals to volunteer information they might not otherwise be willing to disclose by protecting their identity and privacy. By breaking the promise of confidentiality, the subpoenaing of the “Belfast Project” threatens academic freedom, and may deter future research participants from providing accurate personal information. Such reluctance to provide information could harm the work of researchers who might otherwise advance understanding and provide valuable insights on difficult issues. One example in which research is difficult without confidentiality is the willingness of individuals to share information about their sexuality, sexual behaviors, or drug-using behaviors. In past studies, researchers have been able to use this information to derive how HIV spread and implement methods to prevent the spread.

The broad benefits to society of upholding academic freedom, the right to privacy, and freedom of information, far outweigh any claim law-enforcement may have to subpoena confidential research data. While an individual prosecution may be important, the damage caused by allowing such a breach of confidentiality could greatly hinder society-benefiting research. The importance of enforcing certificates of confidentiality to prevent the criminalization of human research subjects is significant.

Boston College has filed a petition for a writ of certiorari in the Supreme Court to appeal the First Circuit’s ruling upholding the subpoenas.

21st Century Problem: Authentication of Prisoner Facebook Status Updates

March 6, 2013
Criminal Law, Internet, Social Media

by Eric Maloney, UMN Law Student, MJLST Staff

Facebook has become a part of everyday life for people around the world. According to Mark Zuckerberg and Co., over one billion people (yes, with a “B”) are active on Facebook every month, with an average of more than 600 million active users every day in December 2012. Disregarding bogus or duplicate accounts, that means roughly one-seventh of the entire human population is active on Facebook every month (with the world population currently sitting somewhere in the neighborhood of seven billion people).

Apparently, Facebook has become so commonplace and ingrained in the daily routine of some that they feel the need to use the social networking service from the privacy of their prison cells.

A Harlem gang member named Devin Parsons has decided to cooperate with the government against fellow members of his gang, and is currently incarcerated while trial is pending. Instead of having the usual prison contraband smuggled in, he obtained a mobile phone and used it to post Facebook status updates under an assumed name. According to Trial Judge William H. Pauley III:

In some posts, Parsons reflected on his life in jail:

“everybody wanna live but don’t wanna die”;
“Life is crazy thay only miss yu ifyu dead or in jail”; and
“G.o.n.e”

In others, Parsons posted about his cooperation:

“I’m not tellin on nobody from HARLEM but I can give up some bx n****s that got bodys”; and
“be home sooner then yaH hereing 101[.]”

While not exactly “Letter from Birmingham Jail,” Parsons was surprisingly bold about disclosing the fact of his cooperation and about the risk of getting caught with a banned cell phone by the prison administration. The gang against which Parsons is testifying is charged with multiple counts of narcotics trafficking and murder, among other things.

One of the defendants in the case, Melvin Colon, sought to compel the disclosure of these postings under the Brady rule, which requires the government to release evidence to the defense before trial if the evidence is favorable to the defendant. Judge Pauley held that the government was not obligated to turn these postings over to Colon; for various reasons, the government was never in actual possession of the Facebook statuses and therefore had no duty to disclose under Brady.

This case highlights the continually growing relevance that Facebook and other social media data has in legal proceedings. In fact, this is not even the first ruling about Facebook in this case; the defendant Colon had earlier moved to suppress his own Facebook postings which the prosecution sought to introduce. Judge Pauley denied this motion as well, holding that Colon’s sharing of the postings with his Facebook “friends” meant he lacked a reasonable expectation of privacy in them.

A background issue in this case was the idea of authenticity of the Facebook poster; because Parsons was posting under a fake name, both sides were unaware of his conduct until after the account had already been deactivated. While not contested here, ensuring that the Facebook information originated from the user is an increasingly important evidentiary consideration as more and more of this data is used in both civil and criminal contexts.

Professor Ira P. Robbins laid out a possible framework for authenticating social networking evidence in his Minnesota Journal of Law, Science & Technology article “Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence.” While voicing significant concerns about the current lack of a required nexus between the online content and its real-life poster, he proposed detailed admissions criteria for social network postings. He offered several factors to be examined by judges in making rulings about such data, including who owns the account, how secure the account is, and how / when the post in question was created.

As Facebook and other social networking information becomes increasingly important to the outcomes of legal cases, a framework like this is essential to bring our procedures in line with the nature of 21st century evidence and to ensure our system continues to meet Due Process standards. Digital evidence is largely unexplored territory for jurists and scholars alike, and it’s my hope that evidentiary standards like those proposed by Professor Robbins are seriously considered by the legal community.

Chimeras in DNA Forensic Testing: What to do?

February 13, 2013
Criminal Law, DNA Evidence, Forensic Evidence, Forensics

by Ryan J. Connell, UMN Law Student, MJLST Staff

The answer as suggested in an essay titled Chimeric Criminals by David H. Kaye in the current issue of the Minnesota Journal of Law, Science and Technology is not to worry about it too much.

The article criticizes the book Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties by Sheldon Krimsky and Tania Simoncelli. The book has latched on to a particular genetic anomaly referred to as chimerism. Chimerism denotes the presence of two genetically distinct cell lines in the human body. The authors of Genetic Justice want to use this rare condition to show that the supposed assumption that DNA profiling is infallible is incorrect.

Think for a moment about what DNA evidence has done in criminal law. Do not just think of the convictions, but think of the acquittals, and think of those freed from incarceration by innocence projects around the country that can be attributed to the use of DNA evidence. To call DNA evidence into question over such a rare and insignificant condition such a chimerism stretches the confines of reasonableness. Genetic Justice proffers that there is a 1/2400, 1/10, 1/8, and 1/1 incidence of chimerism. Other estimates are no better. A 2010 article in the Globe and Mail entitled “The Dark Side of DNA” called DNA evidence into question and offered that chimerism may be present in anywhere from a tiny population to ten percent of the population. If an entire science is going to be called into question some better statistics might be advisable first.

This book and other sources, such as “Expert evidence: the genetic chimerism and its implications for the world of law” by Daniel Bezerra Bevenuto assume that if genetic evidence is gathered and then does not match the defendant’s DNA that the courts and lawyers will simply dismiss the case. I think courts can handle whatever problems chimerism presents. If DNA is recovered at a crime scene and identifies person X and said person is chimeric and the reference sample he provides doesn’t match the sample recovered at the crime scene the court will rightly be concerned. The natural and simple remedy to this solution is just to test again. Normally chimeric cells are isolated so a second reference sample taken from the suspect should resolve the anomaly.

Chimerism does not preset the problem that the authors of Genetic Justice suggest. It is a rare occurrence that a DNA sample recovered at a crime scene doesn’t match the DNA of the suspect it identifies. And even in those rare circumstances where the DNA doesn’t match it is an easy fix. For a more detailed analysis of this issue please read the article by David H. Kaye in the Minnesota Journal of Law Science and Technology.

The full issue of MJLST in which David Kaye’s article appears can be found here.

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