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15 Cardozo L. Rev. 2119 (1993 - 1994)
After Daubert: The Relevance and Reliability of Genetic Information

handle is hein.journals/cdozo15 and id is 2145 raw text is: AFTER DAUBER T: THE RELEVANCE AND RELIABILITY OF GENETIC INFORMATION Dorothy Nelkin * INTRODUCTION The United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., I intended to replace the austere admis- sibility standard of Frye,2 directed federal judges to assess the scien- tific validity of the reasoning or methodology underlying expert testimony and its relevance to the facts at issue pursuant to the Fed- eral Rules of Evidence. Daubert is particularly interesting with re- spect to the use of genetic information in the courtroom.3 While the most familiar use of such information is in the field of DNA forensics, genetic studies are increasingly cited in cases concerning family rela- tionships and criminal responsibility.4 In this Article, I will present examples of the manner in which genetic concepts and the findings of genetic studies are used in court. I will then examine the reliability and relevance of this burgeoning scientific field. The scope and influence of biological concepts are growing, although the information brought to the courts is often based on a weak scientific foundation, and even if reliable, may have little bearing on the issues at stake. It is especially important to assess the reliability and relevance of expert testimony in the area of genet- ics, not because it is junk science as described by Peter Huber,5 but because of its growing appeal and serious implications for legal norms. I. GENETIC EVIDENCE IN THE COURTROOM In 1990, William Berendzen, then president of American Univer- • Dorothy Nelkin is a University Professor at New York University, teaching in the De- partment of Sociology and the School of Law. The Author wishes to acknowledge the Na- tional Center for Human Genome Research of the National Institute of Health, Grant IR01 HG0047-01, for supporting the research for this Article. 1 113 S. Ct. 2786 (1993). 2 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 3 See generally 2 PAUL C. GIANNELLI & EDWARD J. IMWINKELRIED, SCIENTIFIC EvI- DENCE § 18-5(A) (2d ed. 1986) (outlining the explosion in DNA typing evidence). 4 Id. Some of this material is drawn from Rochelle C. Dreyfuss & Dorothy Nelkin, The Jurisprudence of Genetics, 45 VAND. L. REV. 313 (1992). 5 PETER W. HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991) (examining the data-dredging, wishful thinking, and sometimes outright fraud, that Hu- ber claims appears in expert testimony). 2119

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