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2 Ct. Health Sci. & L. 199 (1991)
The Genetic Fingerprinting of HIV Transmission: Challenges Presaged by Current Forensic Applications

handle is hein.journals/cthsclw2 and id is 205 raw text is: FUTURE VIEW The Genetic Fingerprinting of HIV Transmission Challenges Presaged by Current Forensic Applications Pamela S. Coukos On Point The Bergalis case and CDC investigation have raised the possi- bility that a new form of genetic evidence may be introduced into civil litigation. Genetic identification of HIV transmission routes is a new but viable method of showing causation for HIV infection. An examination of a current use of DNA evidence and its statis- tical underpinnings, so-called DNA fingerprinting, shows the difficulties courts have experienced in determining the accuracy and validity of the methods employed. This forensic controversy suggests that genetic identification of HIV transmission may also strain the adjudicatory mechanisms of the courts. doctor is on trial for transmitting the human immunodeficiency virus (HIV) to his patient during surgery. The plaintiff shows that the doctor has left genetic fingerprints at the scene of the crime by matching the DNA' of the doctor's virus with that of the patient. The chance of such a match being random chance is estimated to be 1 in 200 million. Faced with such overwhelming evidence, the doctor settles. While this is only a hypothetical sce- nario, it is a technologically feasible one. If the crim- inal use of DNA fingerprinting is any clue, such a case would be a difficult scientific and legal challenge for judges. DNA identification, popularly known as DNA fingerprinting, is a 5-year-old forensic technique which has practically revolutionized prosecution of violent crimes, particularly rape and murder. First applied in a sensational multiple rape and murder case in England in 1986,2 it has since been used in the United States in an estimated 2,000 criminal investi- gations covering at least 45 states and the District of Columbia.' Those investigations are almost exclu- sively rape and murder cases. DNA tracing of HIV transmission routes is even newer, first publicized in a July 1990 Centers for Disease Control (CDC) report on a possible case of HIV transmission from a dentist to a patient. As part of its determination that the dentist was the source of this young woman's infection, the CDC compared the DNA of her virus and the dentist against others in the area and across the country.4 DNA identification for criminal cases is praised by its supporters. It can be a crucial piece of evidence for many prosecutors frustrated by unsolvable vio- lent crimes. But its critics claim that DNA identifi- cation is not the foolproof piece of evidence it is held out to be. They say that juries are too easily swayed by expert claims in these cases and that courts have too readily accepted DNA identification evidence without seriously examining its scientific underpin- nings. And while DNA tracing of HIV transmission appears to have broad scientific support, it has yet to be tested in court. When that happens, the experience of previous expert battles over DNA identification techniques may provide some clues for the courts in dealing with this new scientific evidence. DNA Identification: An Overview of the Scientific Technique Scientists use two major techniques for DNA analysis, restriction fragment length polymorphic (RFLP) and polymerase chain reaction (PCR). RFLP is the most common, and has been used in the vast majority of criminal cases to date. The technique has been used in the medical field for some time, and is a widely accepted technique for determining certain in- herited genetic disorders.' But its forensic use only SUMMER 1991, VOL. 2, NO. 1 199

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