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tv   Key Capitol Hill Hearings  CSPAN  December 6, 2013 6:00pm-8:01pm EST

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nice and clean. and the exit wowbtd through the top of the head. so this individual was down with his head bowed down and had been executed. the other thing we have taken back is postmortem events. my time is up. i'm going finish on this. is postmortem events bhap can happen to bodies and be able to
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different between what happened perry mortem and what happened postmortem. we see more holes in the head. everybody gets excited by the holes in the head. are the gunshot wounds. other kind of or torture. what we learn is that the army was using probes. they don't have ground penetrating radar to use. at the time they were using probes with ball bearings to find the graves. they were very good at it. you can test the sensitivity of the soil, smell the soil. it find them. it creates damage on the bone. again, in these context being able to distinguish between antimortem injuries that tell us who that person was, what happened at the time of death and postmortem and distinguishing between those what they have been executed or
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relotion of grave. thank you. [applause] [applause] we have time for questions. please come forward to the microphones. i know, it the world's most uplifting and optimistic presentation. i'm sure there are a couple of questions. >> thank you for the interesting presentation. i've had the opportunity to talk to a number of physicians that treated the victims of the shooting in aurora. >> yeah. >> last year. they were very traumatized themselves by being exposed to what many of them had not seen before. which were the wounds caused by the high powered rifles. the assault weapons. i wonder if you can describe what you have observed as the difference between what happens to bone or bodies with an assault weapon and the assault
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weapon as opposed to a more conventional. >> yeah. that's a very good question. and again, you know, we're used to seeing this. when you get the volunteer forces. even when you're used to seeing it it's horrific. but the bone becomes just like china response the faster something goes through it, the more shatter you're going have. and i can only imagine what they saw in aurora. what you have a lot of times bear indies ting wishble parts. it's explosive. and like you would see with high power shrapnel wounds. ideally the soft tissue and things contain -- a little bit. but you get in the mass graffs in yugoslavia you have execution with high-powered rifle. and have something that looked very much like a human body, but
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not really a head. and what you would have is a little pile of bits and bones. much of the head hadn't made the way in. i don't know if it answers your question. these are very difficult questions. recovery and excavation is key. mapping every little teeny piece you can, then reconstruction. you can put the parts back together again. but it does mean recovery. that's key on the scene. >> yeah? >> i've worked extensively on the montana-indian gaves protection act and burial act. i wonder if you can discuss what means you have at your dome to investigate the sites acceptable to american natives that are in the invasive to the remains themselves. >> thank you. it's a lovely question.
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and i would have liked to given a whole talk on these issues. it was a very contentious, emotional law when it passed. and i think many of us who work closely with indigenous populations and different triable organizations have found we've gotten much better at communicating with each other about the process. part of the problem is that remains will be swept off and hidden behind closed doors and who knew what went on. we have more interaction with the elders, triable groups, bringing them in to see with a we're doing. i've actually worked in cases
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where they burn sage or insisted that blessings of those of us doing the analysis occur before and after. being an anthropologist, i'm totally cool with that. it's great. and again, communication. coming from working in human rights cases, as opposed to domestic cases. we tend to work at the medical examiners, you don't see the work we do kind of behind the scenes. when we're on the ground, in these human rights cases, reoften interacting closely with families and relatives. i think those of us that have done that are much more comfortable working with indigenous population and different cultural practices. i think we've dna has been in the press more. they understand some groups. how much it can help them. but it's a matter of negotiation
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and conversation and educating each other. thank you, everyone. [applause] we are moving to a deeper mystery. the u.s. supreme court. he's the country leading expert on forensic dna in the court and going tell us what he thinks, at least, the supreme court has been doing with forensic dna. david? [applause] >> so i want to thank professor agreely for allowing me to talk about something i've been and still writing about in trying to figure out. and i keep changing my opinion. so you don't have it believe everything i say.
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first, i need to find my slides. here we are. i'm going talk this morning about two cases only. although i'll refer to others. that were on the docket and decided by the u.s. supreme court most recently in june for maryland v. king, and an earlier june for williams against illinois. king is a case which arose from
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alonzo king was arrested for waiving a shotgun at a number of people. the police at booking took his fingers prints, they took his photograph, and they took his dna in the form of two cheek swabs. a few months later, after it was determined through a data base search, that his dna profile, the sdr profile we talked about. matched that taken in a rape case, and about four years earlier are upon king was charged and convicted of holding a gun to the head of a 5253-year-old woman while he raped her. he appealed.
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at least in applied in all cases unconstitutional under the fourth amendment. even before the supreme court could meet to discuss granting -- chief justice roberts issued a stay of the maryland judgment and he wrote that there was a fair likelihood that the court would reverse. i went to an oral argument in the case. >> the argument this morning in case 207 maryland versus king. >> mr. chief justice, play it please the court. since 2009, when maryland began to collect dna samples from
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arrestees charged with violent crimes and burglary. there have been 225 matches, 75 presentations, and 42 convictions. >> that's good. i bet if you conducted a lot of unreasonable searches and seizures you get more convictions too. [laughter] that proves absolutely nothing. [laughter] >> immediately i knew this was not going an unanimous court. [laughter] the court split by the narrowest of margins meeting the chief justice's prediction. justice kennedy wrote the majority opinion. when he announced it in court justice colleague ya --
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scalia read the consent. suggested that the opinion of the majority strained the cra jewel -- it reflected a lack of minimal competence in the use of the english language, and paved the way for a genetic pan opt con in which governments could peer in to the dna of nearly all of us. what did the court actually hold? it reasoned the buckle swab of the cheek was indeed a search that was not an issue in the case. the constitutional turn on the balance of state and individual interest, and that plan favors the state under at least the fact in the case. but what is remarkable about the majority opinion and lead to some of the criticism that i
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mentioned is if focused almost exclusively on the interest of the state in pretrial of processes of detainee. of seeing whether someone might be guilty of another crime. not convict them of the crime, but to help make decisions like should they get bail or not. and that narrow focus lead one journalist to ask why does it seem that justice kennedy is the last person on earth to have seen law and order? [laughter] to lawyers steeped in the fourth amendment, the answer should be clear. for the past half century or so, the court has reintegrated and i've counted at least 17 cases, that the standard approach to
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the fourth amendment is a per se rule with category call exceptions for certain kinds of searches, and that per se rule make the search unreasonable by itself in the absence of a warrant and probable cause. unless one of these exceptions applies. but, there are a handful at most three cases, in which the court has moved directly to a balancing test of interests like the one i described. and the question then became how to uphold, if the court wanted to uphold it, the maryland law. and i'm going suggest there are a number of ways that could have been done. one could have applied the per se framework but found an exception. the only exception that suggests itself that has been recognized so far is the so-called special needs exception which is the
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source of immense confusion. the basic idea is that if there is some need above and beyond the normal law enforcement acquisition of evidence for prosecution or investigation, that warrants a balancing to get away from the absolute rule, because the framers weren't really intending an absolute rule in these kinds of situations where there are unusual sets of interest. the problem with applying that hear were two cases ed monday and ferguson, i won't go in to. the primary purpose of the program was really law enforcement, you couldn't use the special means exception. i believe there are ways around that where by it could be used. indeed the judge did it in an opinion on dna data base searching some years ago. and if you're interested, i have left reprints of my article that makes that point.
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it's in the back. please take them, so i don't have to carry them on the plane. the other approach would be to create an excepting for what i call biometric data. purely physical information. not looking in to someone is thinking. but only the kind of physical traits that, for example, a physical anthropologist might be interested in. that would apply to fingerprinting and arguably dna, again, something dressed in the reprint. the court didn't do that. in fact, none of the parties argued that. alternatively the court could have balanced outside the per se frame work. it may abombished the per se rule entirely. which is what, for example, yale professor has been urging for years. saying there ought to be a direct reasonable inquiry as a general matter. the court didn't do it either.
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i think it tried to confine the approach to direct balancing to a somewhat narrow classification. of it not very articulate what that classifications are. as for the planning itself, as i mentioned the court emphasized the state's interests in pretrial processing. and as for the individual interests on the other side of the plan, those were said to be minor. a cheek swab is a minimal intrusion, and the impact on informational privates was small even scientific and statutory safe guards. i want to spend a moment on the scientific safe guards the court was referring to. it has to do with the idea that this is -- well, law enforcement since the first days of dna testing that was referred to has been assuring us that the those used to make investigative determinations matches,
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nonmatches, are noncoding nonthreatening, nonreal stroont anything else. well, not everybody believes -- not every judge believes them. here is a short segment of the oral argument in a ninth circuit dhais is still dragging on after king against harris. this was the argument before the king decision was announced. >> the whole history almost of your ancestors and weaknesses and now we know that so-called junk dna is very important. >> that's absolutely right. >> see that reading "the new york times." you know, -- >> we just love the new york time. that's not part of the record. [laughter] >> you can take judicial notice of it.
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[laughter] >> only if you're a subscriber. [laughter] i read many, many newspapers. [laughter] >> what judge was referring were headlines in "the new york times" reporting that a recent research -- well, not even that research. but a consortium of research known as the end code project the successor to the human genome project. found that 80% of the, quote, functional, and the headlines appear jump dna dethroned. there was immediate criticism of the times and other papers as well as the scientists for their reporting. >> welcome to a simply -- i'm sitting here today with the cohead or it of the blog. we have a special guest here. >> the big headline [inaudible]
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is at best misleading. i think that all of the scientists for the project know it's misleading. so i trouble -- >> by the fact there is still -- [inaudible] they shouldn't say it. they're saying saying it again the headline and "the new york times." maybe they felt like -- [inaudible] but you should never do that. you don't destroy the science to get to the headline. >> you don't distort the science to get to the headline. it you want to follow more of that issue, i recommend an amicus brief. i was involved in with it with the professor in which we recruited a number of distinguished scientists. we could have used more. and attempted so simply explain
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what the relevant issues on court junk dna were. but the court used it in the opinion nonetheless. it's an interesting brief, and easily obtained so the idea of the scientific safe guards then was those being used were not revealing much more than identity. it was sort of the basic end of the brief as well. privacy laden use of dna. statutes can be changed. supreme court clearly rejected the view in king by saying that once the statutes are in place, we will give a presumption they are followed.
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what is left after king? one issue is the balancing work the same in cases that are not, quote, seriouses offense. at least four times in the king opinion you see the phrase serious offense never defined. is it descriptive? if it's vital to the balancing, then the federal law is unconstitutional. because it requires dna to be taken regardless of the seriousness of the offense as long as there's a detention. you go to a campsite, you don't obey the regulations. you get arrested. your dna is supposed to be taken under federal law. how about uniform application. that was something that the court stressed in the idea that this was a permissible, reasonable kind of search. is it not uniform if because they want to get the dna simple? even if they have probably cause? what if the state wants to go after smaller matters and build
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up the data base? can it do so by changing the way the dna is collected? you heard this morning in theory at least, sometimes in practice, dna can be found even in ordinary fingerprints from a few selfs. he would do more by just having a sticky pad, which would gate lot of cells. instead of swabbing the cheek which was the point of concern for justice scalia saying the proud founders of our constitution would not have welcomed a royal cheek swab. well, what about a ealing fient -- fingerprint? what about trialing directed to
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other members of the family. which can be done and in fact is strongly favored in denver. by the district attorney there. is that a different balance of interest in what if the profiling is done before any charge is done? is made before an arraignment unlike king. as coffering every criminally active person in the british population. so terrorist a lot of work left for lower courts following king. good luck to you.
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williams v illinois. justice alito has the opinion of the the court in two cases this morning. the first is williams versus illinois number 10-8505. this case involves dna evidence and confrontation clause of the sixth amendment. the petitioners sandy william was was convicted in state court in illinois for on ducting, raping, and robbing a young woman. at his trial the victim identified williams at attacker. the state attempted to show that william's dna matched the forensic sample obtained from the hospital by the victim after the rape. the dna expert testimony violate
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the confrontation law. the state court of appeal rejected the argument and the supreme court of illinois affirmed. i filed an opinion in which the chief justice kennedy and breyer joined. justice breyer filed a concurring opinion. justice thomas. justing kagan filed a dissending opinion in which justice scalia, ginsburg, and sotomayor have joined. >> notice the same lineup. but even a more fractured court. and justice alito refuses to explain the basis for the court's opinion. i'm supposed to do that in what, seven minutes? well, six. [laughter] why doesn't he give the court's holding? because there is no holding! in fact, if you read the
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opinions a majority of the court rejects every theory that is offered for the result of affirming. the confrontation clause itself talks about the right to be confronted with the witnesses against an individual. all of which appeared at the end of the term at the last possible day reflecting the court's struggles. woe know from the first case that a laboratory cannot simply produce a notarized form that
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says cocaine and can be introdoes -- introduced for the prosecution. but even that without a witness to support that result. but even that lead to a dissent by four judges who said that justices who said what the court ought to be doing is in fact not applying normal confrontation principles to laboratory work because they're different than ordinary witnesses. what i'll call science exceptionalism. the second case of the trilogy justice ginsburg wrote an opinion in the case in which the state of new mexico used a within for a dui blood alcohol measurement. someone from the same laboratory, from another laboratory who had not been involved in the testing at all.
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only one justice joined in the entirety for the opinion for the the court. that was justice scalia. justice sotomayor wrote a con current stressed the limit of the. one being that the report as to which there was no live witness for of too a firm in maryland. that firm deduced the rapist's profile. which is not always a trivial matter, by the way, and offer requires judgment, mixed samples are producing real issues in forensics today. especially when there are low
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quantities of dna. anyway they deduced the profile, sent it back to the state. an analysis from illinois punched in the profile to the computer which searched data base. 0 got a hit on mr. william and used another software program called pop stats to come up with a probability even lower than the ones we heard this morning. of one in quad rielon. for an un-related person sharing -- picked at random having the same type. here the state did not attempt to introduce the report. instead it called the illinois analysis to describe her data base hit. and the prosecutor at trial said, there's no confrontation problem. because i'm not getting what a another lab did. however, you read the transcript, the prosecutor
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referred to the male dna profile found in the semen. the court plit in many way on this. i'm going quickly go through the main theories. one of justice alito -- opinion his theory was not it's a confrontation issue because the laboratory wasn't being an accuser. well, five justices said where did that come from? it just says a witness in the sixth amendment. another theory that gets very
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complex and you have to be a lover at hearsay involves truth of the matter asserted. there are cases which the rule might work to get around the confrontation clause. but we argue it's not the williams the case. the theory offer forked that purpose are not fully satisfactory. after williams things are, i submit a mess. there's no majority opinion. very hard for lower court to
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know what to do. the fundamental issue whoops, is really whether the court are in the business of trying to guess what five justice is do for inconsistent reason or seek a coherent theory to apply in given cases. that's what we see lower courts differing. the future. i want to end whimsingly. >> gentleman, these documents speak of rights. much of the accused by a trial to his peers to be represented by --
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is not human being. a machine. an information system. i ask the court adjourn or reconvene. i'm done. [applause] we have time for one or two questions. i'm going it take one. david, was justice scalia's opinion to go back a sharp instrument or blunt instrument? [laughter] questions? other than rhetorical questions? all right. i can tell this group knows that after this question session is done you have a break. which is probably why there are no question. you are on break.
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back here at 10:30 we start up again in about 13 minute or so. see you here at 10 10:30. [inaudible conversations] more from the tenth circuit bench on genetic and the law. we hear about genome scwepsing, prenatal testing. this is an hour and a half. [inaudible conversations] all right. time to get started. take your seats. take anybody's seat.
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all right. i declare the presence of a corp. quorum. a professor of law at duke and professor in the philosophy department. [laughter]
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how behavioral sciences are impacting the legal system. this morning you've heard about already the extraordinary role that dna, the analysis of bones are playing and identifying individuals, and in particularly in identifying criminals in order to solve crimes. i'm going shift our focus a little bit to talk about what genomic and behavioral sciences tell us about why a person is committed a crime. and whether or not improved understanding of why people commit crime or the contributions to human behavior should impact how we think about responsibilities for criminal conduct, and the punishment for criminal conduct. so of all the risk factors that
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mo notable for the development of antisocial personality disorder, that have a genomic basis. does anybody have the most predictive genomic feature is? being a man. thing men are at a significant biological disadvantage to women. [laughter] it turns out this might be part of the explanation as to why. what you're looking at here is a. it's a gene which happens to appear on the x chromosome. and it turns out that a essential gene and lot of behavior.
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and turns out that men are not only a significant biological disadvantage by the mere fact they are men, but also because t more likely to appear in the low producing form in men. there's a variation in the promoter region, which regulates how much is expressed in the body. and because it's x linked men are more likely to have a lower amount produced which may help explain some of the differences in the increase in criminality we see. that's a theory. it's not approach. it's a theory that has some interesting support. so some researchers published a remarkable study in 2002.
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and the remarkable study showed the first of it kind gene environment interaction. right here what you see is this gray is high. the black is low. there is some difference between the two. not much. there's a big difference over here. what is the big difference. it turns out, if you take and look at a cohort of
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individuals. this group did. they looked at boys over a 20-year time period looking at the social history, determining whether or not they have been subject to sexual abuse or physical abuse in childhood, and the presence or absence of the low form or high form of monoam -- if you had the low activity had severe childhood mistreatment. there was a significant four times greater possibility likelihood that you would be an antisocial individual in adult. how do they define antisocial personality? they look ate the likelihood of committing either violent offense. it's remarkable and interesting.
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there's a disa difference. in gang members, the use of weapons. what you're looking at on the -- on the right you're looking at low. the likelihood of using a weapon. they are significantly more likely to use a weapon than those who had high. which was the normal expression. the mere presence of the gene matters. why does it matter to us?
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well, it has implication for the criminal justice system for how we think about individuals who might commit crime. it's an example. these turn os are well related. many criminal trials across the country criminal department ofs are coming in and saying don't blame me. blame my genes. don't blame me. blame my brain. my brain made me do it. well, in some ways, of course, your brain made you do it . what does it mean? what does mean to try to say there's something different about your brain than your
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conscientious decision making deliberative fore thought processing of the information. there's a correlation between a genetic difference and a neurological difference and a difference in the amount of crime that is committed. what this shows you the curve you see there is what it look like if there is an exponential increase. you see 2005, 2006, 2007 there's about 100 some cases. most recent years 300 cases. what is this? simple lyme looking at westlaw reading judicial opinions many of you may have written. that discuss a criminal defendant coming in to a
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criminal courtroom and using evidence of behavioral genetic or neuroscience to try to decrease their responsibility only 10% make if to trial. the number of them that discuss the genetic and neurological evidence presented in the case was smaller. westlaw will tell me the inclusion criteria is. and the more i talk to prosecutor and defense attorneys the more they tell me in the pretrial face in plea bargaining increasingly the evidence is being used to try to plea for a lesser offense or alesser punishment. in what ways? well, the firsts most pef lent is in cases offed had. right. in death penalty cases that's
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where the evidence first showed up. in the sentencing face of a capital case, a criminal defendant tried to present as mitigating evidence that they should be treatedless harsh. they shouldn't get the death penalty. what is surprising if you look at the chart there are many other types on here. okay. from felon murder, child abuse, rape case, drug case, across the gamete of felony cases now, criminal defendants are coming to the courtroom and introducing evidence there genetic or brain help to explain why they behave the way that did. the blue in the front and red in the back shows you that the majority of these cases are now becoming neurological cases.
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it's gettic evidence. the red bar in the back is neurological evidence. what this is with a kind of claim are they making? you'll see the biggest bar is mitigation. which makes sense. it started as a punishment theory. there's another surprising feature of the chart that i go in to with some illustration with the case. or in challenges to the state of the individual. whether or not the person had the ability to form the mental state necessary to commit the crime. it didn't just a punishment theory anymore. that's where i want to start is why punish?
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i have a conversation with students about why do we punish criminals? why do we hold people accountable for their actions? is it just -- okay. is it a deterrent-based theory? doing for the utility of society to fry to safe guard individuals against criminal behavior? or try rehabilitate and reintergrate people to society. it should help us determine what the role the evidence should lay in the criminal justice system. let me give you an example. in a death penalty case. there have a criminal defendant who came in and he said look, the reason i acted i did because therer is tone man
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deficiency. that deficiency is attributable to my genetic predispositions. after my arrest it was discovered. i started prescription medication. after having started the prescription medication, my behavior changed. and my behavior changed so much so that the death penalty was not warranted because of my aggressive behavior was genetic. meaning beyond my control. it's now treated. it is a treatable condition. therefore i'm not the worst of the worst kind of criminal offenders. if it's a it's based on the moral copability of the offender. if there a value in executing them or in keeping them in
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prison for a longer period of time of time. this is a question that is showing up repeatedly now in quite a few case. one of the bars -- the an seems to be at least from the supreme court that failing to investigate the genetic and four logical does institute ineffective tan of counsel. that in many cases institutes ineffective assistance of counsel. not true if it's just cumulative evidence.
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i can't control my behavior. you should go back on the street. i'm sorry. that's rough. probably not. this very question presented i.t. to the supreme court well before we have an an to the genetic basis of violence in society in a case. he said i had ineffective use of counsel. never thely, it goes up to the ninth circuit and the reason it gets there is because i would
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have cooperated if i understood a particular serious mitigation developed. there was a genetic basis for my violence. i'm violent. my father was violate, my grandfather was violent. i had father was violent. there's a heartble basis for the violation in our family. if jury heard evidence he was a remorseless violent killer shown from the fact he comes from a long line. they certified a particularly -- is a -- is it mitigating?
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how do we think about that? the court didn't have to resolve that question in this case. because they were able to resolve it on the other issue. can you waive your right to have mitigating evidence? yes. but they did say in the opinion we're not really sure it would have been that helpful anyway if he had been able to introduce it. it turns out that they picked up on this. and sexual violent predator cases where the issue is civil commitment. one of the questions is there a genetic or neurological or buy logical basis that makes it likely that the person will reoffend as a basis for indefinitelily committing a person. and the same evidence that some of the criminal defendants are introducing at trial is showing up in the civil commitment proceeding as a basis for keeping them in prison longer.
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if i torp ask you to raise your right hand. most of you might be able to do those. you might refuse. you can do so. why? because you have the capability of deciding toen gauge in action. is it right to say because i can describe genetically and neurologically your behavior and casual contribution to your behavior you don't have the ability to make choices about the behavior? well, that seems to be the theory that criminal defendants are introducing with they come to the criminal cocourtroom. they're saying t not voluntary. i explained how thin the concept
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of voluntary criminal law. we don't define it. are we just sleepwalking through life? it times to be what a lot of criminal defendants are saying. they are acting out of reflects and con polings.
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you can look at your family history and see if other people had been likely to do so. like wise, incompetency cases is showing up a lot. the idea is a same kind of involuntary more often with neurological. this is to say i couldn't actually voluntarily waive my rights to i couldn't waive my right. if i'm a juvenile means that it's not voluntary in the way we think about voluntary. we have to an as more shows up in the criminal courtroom. just as an example in one case,
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a defendant comes in sees i was addicted to drugs and alcohol. but it was a genetic and neurological basis for doing so. the court says we agree. the defendant never had a choice to develop the addiction problem and unable to exercise free choice regarding drug use. we're not there with genetics there. we're not there with neuroscience yet. we cannot explain 100% your behavior. the question is, how much capacity for racial choice do you need to have for the criminal justice system to think that you have vom tearily acted? i wouldn't have a legal basis of
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doing so. i hit my head right before i came in. it shows i couldn't voluntarily waive my right. well, some of the problems that happen in the case is the objective observationer have survived the neurological. a person enters to a perfectly normal colloquy with the police asking them questions. they are competent in every way we understand competency, but then they show us a brain scan or neuropsychological testing that say they have some abnormality. these are issues we have to address. there is a difference between our perception of behavior in some of the scientific evidence of it. does it matter to us? should we care? ..
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understanding competent rational action? criminal actions are never totally rational but was it a suspicion that you have the mental state to do so? a lot would say no and it wasn't my biological evidence shows that to determine this is the one that seems to gain the most attention, the most attraction which is impulsivity. there's pretty good evidence at least in juveniles for example that they are more impulsive and part of the explanation for that
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is the frontal lobe region of the brain isn't fully developed and the frontal lobe region of the brain is essential for executive functioning, for planning, for premeditation and it turns out in many adults there are deficiencies in the frontal lobe and those deficiencies don't have to be deficiencies of the frontal lobe. it could be the amount of narrow transmitters that are firing and appearing in your brain which has the genetics component basis. does it matter? is the evidence of a general tendency toward impulsivity tell us about the moment at which a person decided to pull the trigger on a gun? is a general predisposition determined for us about that moment in time to? to give an example of best in nashville vanderbilt where he previously taught there's a group that is testing criminal defendants. genotyping to figure out if they have the operation that i was telling you about and another
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gene that serotonin gene, the transporter region of it. they are going into criminal cases and testifying on behalf of criminal defendants in this is one such expert. the trial expert was convicted, the defendant was convicted of second-degree murder. the trial expert testified the defendant had low serotonin levels in his capacity to control his impulses was virtually nonexistent. the genetic evidence was used to challenge the mental state that the person didn't have the necessary mental state. to provide a novel theory of provocation that the persons own self provoked him rather than some external person totally a novel theory, right? and to try to mitigate the sentence. it didn't work in this case and it hasn't worked in a lot of cases because the objective circumstances are different than the mineralogical evidence. evidence of planning as we ordinarily understand it buying a gun taken to a place pulling the trigger saying --
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those subjective things fly in the face of a lot of mineralogical evidence and we are going to have to swear by it. this just tells you this chart how it is faring. the red bar is bad for the criminal defendant. the blue bar is good for the criminal defendant. wherever you are in the room you we should see a lot of red. you should also see a little bit of blue and a little bit of blue that you should see is around mitigation and effective assistance of counsel medication and some aggravation. in general it's not working but again remember this is a subset of cases. it may be much more effective than plea-bargaining. in the cases where there is good evidence of neurological or biological differences that may never get to trial. so this might be a skewed sample but in the cases i'm looking at its not having a huge impact as of yet but it's causing people to ask a lot of questions and
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one of the interesting things i have seen is the amount of ink that people are spilling in trying to address these issues is increasing in volume. so it's an issue that we are going to have to address. in conclusion the use of this evidence is rapidly expanding and we are going to have to figure out what it means for concepts of responsibility and punishmenpunishmen t. it's showing up in a lot of criminal cases primarily in pretrial and trial sentencing. it requires us to evaluate our norms about what it means to hold the person responsible and to punish them. it's going to appear increasingly as an explanation of behavior across love. we have time after question and answer in that is interesting in a longer talk i would address but we can certainly talk about in questions and answers is its role in the civil system. it can be used to substantiate
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injuries. if you could look at a person's brain and see if they actually have a headache, they actually have pain. there can fascinating studies that actually have shown you can see neurological signatures for pain or increased predisposition to suffer from pain. is that the then plaintiff we are talking about in it showing up in tremendous disability cases. this is the evidence we have to address. we will have to think about the role of the criminal justice system and i'm sure it's already appeared before many of you. thank you and i look forward to your questions. [applause] >> we have time for one or two questions for professor farah on a although you will get another chance in another half-hour. questions? you are saving them for the whole group. we have a question coming. marching down the aisle.
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>> thank you for that wonderful discussion. i'm a psychiatrist, frantic psychiatrist and you refer to some of these cases and do some talking about this as well. and i think one of the problems in a lot of these cases is the in voluntariness is improperly defined in there's a clearly difference between having no choice in having a hard choice and that i think is richard bonnie to first look for that distinction and i think it's really useful. at least i found in working with it and i wonder if you would comment on that? pee wee treated as black and white voluntary or involuntary. not that there shades of gray up well it was voluntary but it was a harder choice. that's because in criminal law we treat people according to a norm. we say if you are able to reach
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that norm, great. if you fall below it you do so at your own peril and if you are but they good for you. this goes back to oliver wendell holmes and his theory but we will have to evaluate that. now that we have much better evidence that some people can't live by that reasonable person standard should it matter to us and it goes too what's the theory of punishment and why do we punish people? is it because it's free utility for safeguarding society? we will have to figure it out and the shades of gray that science is making a parent now are things people have to think about and address. >> thank you, nita. [applause] gives give me 15 minutes. our last speaker needs an introduction but is not going to get one. that's me. so far you have her teeth people talk about science in a courtroom context.
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i want to open up the frame some and talk about how genetics and genomic technologies in particular are going to change our world in ways that will have some effects in courtrooms and in law offices so those of you who are here as judges or lawyers with spouses or partners of judges or lawyers will see some of this professionally first-hand or secondhand but it's also going to have enormous effects on each of us as patients, as citizens, as parents and grandparents and great grandparents. the genomic revolution is going to transform our world and is i think actually going to physically transform to our grandchildren and great-gragreat-gra ndchildren are. that is what i want to talk about in my brief time. i want to focus on two specific areas. first, the inexorable rise of
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sequencing and second implications of prenatal geneti. let me start with the first one. how many of you have had a genetic test? rager hand. i see about eight hands. how many -- anybody in here born after the early 70's should have raised his or her hand. all of you who have had children in united states or another developed world country passed early to mid-70's have had your children genetically tested whether you knew it or not. you may be thinking how to remember the informed consent for that. not only going to give an informed consent you weren't even asked consent. by state law it is mandatory that children be tested shortly after birth for a friday or does genetic diseases. genetic testing has been around for 40 years. why is this going to change? i'm in california. 110 years ago there were about
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1000 cars in california. today there about 20 million cars in california. sometimes differences in kind are really important but other times differences in degree are more important. those 1000 cars ,-com,-com ma 110 years ago where curiosity. the 20 million cars today have changed everythineverythin g about how californians live, where they live, where they work, how they work when they have and how they have and the very air that we breathe. we have had genetic testing for over 40 years but it's been minor. only eight of the raise your hands when i asked you about genetic tests. i suspect within the next 10 years almost everyone in this room not only will have been genetically tested but will have his or her whole genome sequence on file in the electronic medical records. by the way it's really important
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you not have electronic medical records because if we were to write out your genetic code to a, c, g and t's they would be as long as -- what not one volume but from one f second to 199f second. this is something i can't tell my law students anymore. it's a label to come up on westlaw and lexis but those of you old much remember the books, 101,200 page volumes. that's her genome and we are going to have followed back and everyone of your electronic health records probably within a decade. why? lin pointed to one of the answers for why. because we can. because it's getting cheaper and easier and faster. we have moved from three billion dollars to $100 million to $50,000 to $3000.
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in the beginning of 2012 several companies announced by the end of 2012 they would have a $1000 genome. they didn't. they are not going to have a $1000 genome by the end of 2013 yet but by 2014 i think it will be there m. by 2020 to $100 genome will probably be around. now what will that be useful for? first anytime a child is born instead of doing the tests we currently do for 50 diseases that cost several hundred dollars, we will probably test for everything. when the whole genome sequence becomes cheap enough people will say why not 30, 40, 50 test? let's get all of them all at once and second that's going to happen to us in our own medical care. some of that will it be a genetic test for one particular thing.
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if you have a family history of colon cancer and your physician thinks you know you might have a hereditary nonpolyposis syndrome that would give you a 90 to 95% chance of having colon cancer near lifetime and we should find out about that because if we know you have that we can keep you from dying of colon cancer pretty confidently confidently. we can inspect and monitor you for colon cancer. we can do prophylactic surgery, not the best thing in the world to have done but it's better than metastatic colon cancer. if you have the family history lets test and see if you have a bad copy of the gene. but of whole genome sequence he is really that cheap, both the doctor and the insurance company will say why test for one thing? let's get the whole genome sequence. 's get the whole sequence and we will never have have to test you again for your sequence. we will never thing and we will feel this tell you about all sorts of different things that
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may be to your advantage. this i think is inexorably where the scientific medical complex is going to lead us for reasons both good and medical and not so good and commercial. but like every good thing it's got some issues with it. first how accurate while the whole genome sequence he be? if it only makes a mistake one in a million times that's pretty good but if you've got 3 billion base pairs that's 3000 mistakes so how do we know that problem in your brca1 gene is a problem in the gene and not an in accuracy problem with a test? we might like to think the fda will make sure the tests are accurate. the fda isn't regulated in these tests. at least not yet. the second issue, len referred to this. interpretation. answering a question about consumer confidence. wonderful study a few years ago
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that the government accountability office did. they took dna samples and sent them to three companies doing this directly to consumer testi. they analyze them and gave them the raw data back. what dna was fair, what snips and nucleotide polymorphisms were there? the companies were perfect. they were all the same but what that meant medically for each sample the companies differed a lot. the gal distinguished high-risk, medium risk, low risk and found a third of the time one of the companies said high-risk and the other companies said low risk. who does the interpretation and how accurate will that be? i think that's going to be a huge problem particularly if the interpretation is done done by a fire that companies using private algorithms that are transparent that aren't open to analysis that aren't fda approved and so company amex as you are at high-risk for
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diabetes and company diabetes and company b says you are low risk for diabetes, what do you know? diabetes is one where the efforts on things that are good for you like lose weight what if it lead to prophylactic surgery? one company says we should take out your gland and the other company says no, no problem with your gland. however going to decide that? the biggest and hardest issue will be how in the world will be explained this to people like you and me and people like you and me who may be less sophisticated about medicine than you and i are. it's hard. right now the saving grace is if you go in for a genetic test to test for one thing usually. it's a test for colon cancer. you know something about the condition and your doctor knows about the test.
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the doctor can say here is what this means. but if you get back not just the results for one thing that the results for everything, the doctor doesn't know what those 4000 diseases are and how to interpret it and neither do you. that can be a big problem. information can be wonderful if it's used well but it can be awful if it's used poorly. take and ovarian cancer testing. if a woman does not have the mutated version, she has a normal version of those genes she is not at 80 to 90% risk of getting or ovarian cancer from those genes. so a woman gets the tests and learned she is not at high-risk. what if she then says great, i don't have to get mammograms anymore. a serious problem because not being at 90% risk does that mean
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you are at low risk. the average american woman's risk being diagnosed with breast cancer is about 12%. the average american woman with a normal brca1 or prc to gene at risk of getting breast cancer is 11.95%. acting improperly on that information could be deadly. about 20% of us in this room so quite a lot of people are at double double or chapel the normal risk of getting alzheimer's disease because of our genes. if you learn that and you decided oh my god i better take senior status early or i'm going to check out and take, retire early and take my 401(k) and go around the world why i can remember it, it might be a wise idea but it might not be because a two or three times the normal risk it's less than 50% and if you don't have somebody explaining that to you you could
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misinterpret the information in ways that will be damaging. how were we going to explain 4000 genetic results to people who can't even spell dna and how are the doctors many of whom were trained without any genetics in their training, going to be able to explain that? that's going to be huge challenge. a couple of other huge challenges. the maryland versus king case expanding the databases for criminal purposes to include people who have been arrested but not convicted. interesting and important decision. will we need it? if everybody's sequences in their electronic health record and the police have suspects dna, crime scene dna do they even go to code this or do they send a subpoena to the local kaiser permanente system or the veterans administration or intermountain west or whoever has electronic health records?
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health information the good news is it's protected genetic information is protected just like all other health information. that's the good news but also the bad news because health information is that deeply protected. what are the confidentiality issues? what are the issues about research? researchers would love to get their hands on full genome sequence of 100 million people with the electronic health records combined but maybe those patients don't want to be research subjects. are you going to ask for consent to be researched on or aren't we and what about kids? right now the consensus in the field is don't test children for diseases where it doesn't make any difference while they are children. if somebody might be at risk for hauntings -- huntington's disease a terrible neurological disease seeds, don't test them while they are a kid because it won't help them.
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if you do whole genome sequencing after birth you have all the information. what do you do with that? do you give it to the infant? probably not. do you give it to the parents in the preview krishnan hopes at 18 years later the pediatrician will be in contact? you put a dent and envelope and say do not open until age 18? these are questions we'll have to deal with. when all of their genomes are in all of our electronic health records medicine will change in ways that i trust ultimately will be for the better but we will face challenges in trying to figure out how to deal with it. even more important than that is the change we are going to see and having babies. people will still have babies and i think people will still have but i don't think people will have to have babies. nearly as much as they have in the past. prenatal genetic testing testins
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existed also for 40 years. some of you may remember it, amniocentesis, the long needle at 16 to 18 weeks or chorionic sampling a shorter needle at 12 weeks. my wife had amnio with her first child. she didn't like it. she had cbs with their second child. she didn't like that. we didn't have a third child. we can do it but it's invasive unpleasant expensive and somewhat risky with some risk of miscarriage but for the last almost two years for companies in the united states are offering prenatal testing from a blood draw. at quarter pronounce a blood from a woman who may be as early as eight weeks pregnant to tell whether or not that fetus will have down syndrome or trisomy 13 or air in the future a new tea did brca2 gene or a high-risk of alzheimer's or colon cancer or
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blue eyes. one blood draw no muss no fuss. those of you who have been pregnant have gotten prenatal care may not remember that you had lots of blood draws. it's just one more eight-milliliter tube in an early blood draw. that's going to change which babies are born because it will make it take from currently about 2% of american women get prenatal genetic testing. i suspect within 10 years that's going to be 70 or 80% to learn more about the genes of their fetus at a time when they can do something about it. that is going to be transformative. the real revolution is 20 or 30 years away. i am writing a book on it and now long overdue book on it called the end of sex. the good news is it's not the end of there being boys or girls or the end of things boys and girls do with each other that we call sex or boys are boys and
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girls are girls but it's going to bbn for a large chunk of the population using sex to conceive babies. babies will no longer be conceived in bed or in the backseat of one of those california cars or in a water bed or the keep off the grass sign or anyplace else. they will be conceived in a clinic. why? because there's a procedure that's been used for 20 years called preimplantation genetic diagnosis. if you've got the embryo on day three, its eighth cells in a water balloon filled with clear gel. you can think of it as eight grapes inside of a water balloon filled with jell-o. but we can take -- do is take one of those cells out and do a genetic test on that and say this embryo is going to have down syndrome. this embryo will have down syndrome but we'll get huntington's disease later in life. this embryo will be a great
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tissue donor for its older brother who has leukemia. people have done that for 20 years. there's a problem with it though. it's not that the kids end up missing an arm or leg. the other cells make up for the cells that are taken. in order to do that you have to do ivf, in vitro fertilization because if you in vitro fertilization because of the conceived the old-fashioned way when an embryo is three days old is halfway down one of the women's two tubes and good luck trying to find it. if you conceived by ivf you know exactly where the embryo is by day three. it's in the petri dish you put it in and it's easy to find and chat. ivf is a pain. i'm sure some of you who have gotten through ivf and i should qualify that. nita said men are at the genetic disadvantage. no man has ever been hospitalized as a result of donation. egg harvests is expensive,
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unpleasant, dangerous. 1% of the 200,000 american women every year who go through egg harvests end up in the hospital as a result and every few years somebody dies. that hasn't happened from harpists as far as we know. life is unfair. getting eggs is the problem and getting eggs is the problem that has limited ivf. that is going to change. because we will be able to take stem cells and turn them into heart muscle cells, liver cells, brain cells and eggs and sperm. not that human embryonic stem cells you've heard so much about although we could do it with them but six years ago japan invented what are called induced pura ponton stem cells. you take skin cells and you hit them up with a cocktail of
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things and they start acting like embryonic stem cells. they can become heart cells and brain cells and kidney cells in lung cells and eggs and sperm. in fact a different japanese scientists has done mouse in vitro fertilization using mouse eggs derived from mouse stem cells and mouse sperm derived from mouse stem cells and has made healthy mice. don't try this at home yet. mice are not people read medicine will find a cure to turn us us us into mice assault when they figure out how because we can cure everything in mice. we are not there yet. 10 years from now, 20 years from now a couple wants to have babies they will do the following. they will go to the clinic. the woman will give up a skin cell which will be turned into a pluripotent stem cell. the man will get the sperm probably the old-fashioned way. it's cheap and easy. the magazine costs and video costs but there is a low.
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they will make embryos. how many embryos will they make? right now with ivf that's limited by how many ripe eggs you get in an ivf procedure. eight, 10, 15 may be, 15 maybe 20 and a healthy woman. making them from stem cells cells, the skies the limit. 100, 1000, 10,000 embryos. and then each of those embryos at day three gets a genetic test. that is the limiting factor of the cost of doing a test. let's say cup with 1000. they stop with 100. they have 100 embryos cleverly named one through 100 for each of those embryos they were five categories of things. does this embryo have any early onset disease like down syndrome or tay-sactay-sac hs or sickle cell or cystic fibrosis category 1? category 2 what about about later onset diseases risks of
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alzheimer's or breast cancer. category 3 will be what hair color, what skin color? tall or short? lucky enough to have curly gray hair like the silverback gorillas which are the leaders or her male pattern baldness or something in between? category 4 will be behavioral traits. not just issues of violence but not asking for directions straight. we know where that is. that's on the y chromosome. i don't think behavioral traits will be huge because i think behavior is complicated. i don't think we'll be able able to say this embryo 23 .50 on the s.a.t.. 174 on the lsat but i think we will be up to say this embryo has a 60% chance of being in the top half for a 15% chance of being in the top 10% whether it's for test scores or musical
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ability or sports ability or personality traits, all things we know are complicated but that we know for various studies have genetic correlations. the fifth category, the easiest, boy or girl? the couple will get 100 readouts on 100 embryos and be asked which one do you want to try to make your baby? one side effect i think will be divorce is when the guy says i want number 12. that's andrew luck. he's going to be great quarterback. or she says that's 33. i'm not sure who the equivalent would be on the other side of the spectrum but they will have those traits. they won't be able to pick the designer baby. they will only be able to give him pass on what they have to give. two blue-eyed parents will not
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produce a brown eyed child this way and furthermore with the number of different traits, 100 embryos or even 1001 give you a very good chance of getting your favorite on each of 20 different traits were 30 different traits but on 10 that are important to you the odds are pretty good. so what will that mean? i don't know. that is why i'm writing the book. but i do think it will mean that our children and our grandchildren and our great-grandchildren will face different parenting issues than we did. there issues will start well before birth in deciding what kind of baby they want. how will that baby feel knowing that he was picked to be andrew luck and rather than having andrew stream of being an architect he instead wants to be a poet or how will the parents feel when their football quarterback turns out to be a poet? what's going to happen in terms of fairness? will some people be able to
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afford it and some not? my own guess frankly as everyone will be offered this for free because if you are an insurance company or national health care system preventing the birth of one really sick baby out of 100 will pay for 1000 of these procedures. one child's two weeks in the neonatal intensive care unit is several million dollars. that pays for a lot of this easy -- what about issues of coercion? in the state say you can't use that? you have to use a? will there be countries that say we want our children to be embryos that will be above-average so north korea becomes lake wobegon? i don't know the answers to those questions but we are going to have to confront them. not because anyone sets out to turn, to create a brave new world but because research intended and focused on the
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relief of human suffering, on medical purposes teaches us things that have secondary uses. it teaches us more about genetics and interventions than necessarily we wanted to know and gives us the opportuniopportuni ty to move into these areas, move into them i think slowly. the first use of this will not be for prenatal preimplantation genetic testing. it will be because adults can't have children quote of their own, their own genetic children because they don't make eggs or they don't make sperm will want to use this to make their own eggs and sperm. my stanford colleague who works on this get e-mails every week from people egging her to make eggs or sperm for them so they can have their own genetic children. that is pretty attractive. you start with that in the fda proves that the other uses follow. so the world will change.
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the world changes all the time. our great grandparents wouldn't recognize the world we live in. we will not recognize the world are great grandchildren live in. part of them will be jeanneau mix. part of it won't necessarily affect the law but much more basically it will affect each of us as members of the species going forward. thank you. [applause] i think i will waive my specific question and answer time and asked my fellow panelist to come up and we will open the general q&a. again please come forward to the microphones and if you guys don't ask us questions we will have to karp among each other and that's probably a bad idea. everybody can see where we are
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supposed to sit except us. all right, questions? yes. >> i assume most of you are familiar with the national academy of science report on foreign sick use of this kind of stuff. >> several reports. speaker1: that judge edwards shared as i understand it simplistically says dna is the only area of science that we have a lot of confidence in and the other scary depending upon which one. what are your thoughts about that reporting the fact that generally the judicial system is ignored? >> who wants to take that on? >> i will at least start on that question. i think it's probably fair to say i don't know my fellow panelist
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opinion but i think it's fair to say dna evidence in part because it's relatively recent and it lends itself well to quantitative analysis is probably the best scientifically supported forensic evidence. that does not mean it's perfect and that does not mean other forms of forensic science, forensic evidence are so imperfect that they shouldn't be used but i think the consensus is dna evidence is scientifically in general quite well supported and that is one reason why it's been generally well accepted. >> other kinds of scientific evidence in some cases will be very valuable in other cases won't. sometimes genetic information is weak and sometimes it's stronger. genetic evidence is interesting and may be useful and important. it's certainly not determinative. something like shannon's
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own analysis i bet she could say with as close as possible to 100% certainty that certain ones are made by certain sorts of things. she may not be able to say that for all sorts of evidence she sees but i think all of science come the problem is there is such a thing as science or genetics or foreign sick anthropology. it all comes down to the specific question and some specific questions science can be really helpful in another sick and which is why you really need to hope you have good expert witnesses who can tell the difference between the two. >> can i make a remark about that point? a precise statement in the report and this is 95% -- said that dna evidence is the only evidence that there has been shown reliably and consistently to permit association between a crime scene sample in a single individual. it didn't say it's the
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most reliable form of evidence for any purpose >> it depends on your purpose. i edited a report for the nationalists into the science and technology on fingerprinting. fingerprint analysts suffer grave dna and b.. on the other hand it is clear that when done properly and the fingerprint evidence can be extremely valuable so the generalizations have to be correlated on a case-by-case basis. >> this one is for dr. greely and anyone else wants to chime in on this. i'm shocked to learn that my son was genetically tested when he was born and i think he is going to be shocked as well. where is this information? how can i get it? how can his father david? how can he get that? who has access to it and
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have there have been a court cases on this issue, constitutional or otherwise? >> all right. there is our topic for the rest of the 20 minutes of q&a. [laughter] since the early 70's basically every state in the united states has required neonatal genetic testing. it started with a handful of diseases. they said a poster child for it is a disease called feed of -- phenylketonuria or pku. you were born without a good copy of the gene that makes a particular protein that turns one of the essential amino acids into another and we know asacol tyrosine and it needs female alamein to live but if it doesn't get turned into tyrosine too much of it builds up and for reasons we don't understand 50 years after we have understood the basis of the disease that kills brain cells. kids with pku that are not treated and that
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severely mentally usually and we are not talking special olympics are working at mcdonald's. we are talking about kids who never learned to talk, clothed themselves etc.. however it's within days of birth you put them on a special diet that is very low in phenylalanine their brains are normal or close to normal. they may lose a few iq points but not very many. five or 10 at most compared to 50 or 80. so the state said every kid needs to be tested for pku at birth. over the last 35, 40 years the number of diseases that are tested for has expanded. the states require this. two states only allow a regular choice by parents not to do it and every other state it's a crime to keep their kid from doing it. a few states have philosophical or religious opt-outs although not that many of them are used.
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there have been a couple of interesting examples. typically you may learn that it's been done but typically parents won't learn it or know about it because if it comes back as a negative result negative in this case being good that the kid doesn't have that there's no reason to tell you. if it's a positive result they have to figure out if it's a true positive or a false positive and that is maybe one in 1000 kids goes through that. those are the parent to find out about it. a couple of years ago people in texas and minnesota discovered these blood spots from the heel for little kids were being used for research and texas particularly i think made a political miscue allowed the fbi used them for criminal research. parents thought our babies are being put in this codas database which they were but they were being used for research on the frequency of different
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genetic variations. they sued texas and minnesota. the texas case settled with now texas parents being presented with a chance to opt out of any research use than 5 million stored blood samples be incinerated. the minnesota case is still pending. find out what your state's public health law is. they're probably not going to give you the results. the results will be on these handful of diseases depending on how old your children are either five or six diseases or 40 diseases and almost certainly negative on all of them. >> i would like to clarify one thing thing. the tests that were done in the 70s or 80s were not strictly genetic tests. no one was looking at dna. they were actually looking at things like phenylalanine so they were what would properly be called a metabolic screening. >> with all due respect to my friend and colleague here, in this
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sense it's sure they weren't testing dna that but we are testing dna now. we are testing the proteins for most of the neonatal testing. still tests of proteins really but the test tells you something about the underlying data. >> i'm going to have to contradict my esteemed colleague because the fbi did not get hold of any samples until the department of defense did namely to look at the frequency of mitochondria dna and because that was said to be foreign sick. the investigative reporter thought it was going into the database. i e-mailed her and could not dissuade her other ways to spend the fact that it was very clear. >> i will accept a friendly amendment. >> but i want to raise an even broader issue about the king case. i always come back to the same things. mainly what's the difference between being
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arrested and not being arrested? a lot of people get arrested. what is it, 20% or 30% of populations? i have written in my more provocative moments with my colleagues that maybe we had to consider having at the stage of neonatal testing testing done these genetic test for the codas loci and not done by the police, uploaded to a database for use in the future. the law enforcement would never see all the genetic information that is truly private in that way. we would have a national database and we wouldn't have to worry about these databases and the issues i mentioned. is it a scary idea that? well, yes and no. >> i think it's -- >> i was right to your
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question would take us to the rest of the time. >> the underlying concern which is wow it seems like an intrusion on my privacy in my child's privacy and who has access to it is a question that access in every context right now with genetic information and i sit on the presidenpresiden t's commission for bioethics where we just took up the question of whole genome sequencing and issued a report called privacy in progress which looked at the broader privacy concerns that are arising from studying genomic information. what we heard repeatedly from experts across the field and my own personal view is trying to restrict access to genomic information is a losing battle. it's so prevalent. when i leave my glass behind you can pick it up and get my saliva. some states have restrictions against it but its pretty easily accessible so what we really need to do is think about why do we
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care. why are we worried about people having access to our genetic informatiinformati on? there are legitimate things there are legitimate things that where frieda, if where frieda pham player information or health care discrimination or long-term disability care, if we think it's an offense to our dignity because its high level who we are his people and other people knowing information about us that is problematic to us than we need to think about some use restrictions and regulations around misuse of genetic information by the access restrictions not just in this area but probably lots of areas of information will be difficult to enforce. it raises a very important question for us which is, should we care about trying to keep our genetic information secret. all of our genomes are riddled with problems and are we going to get to a place where we are not as concerned but trying to have a different conversation about concerns about discrimination based on
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our genetic code clacks. >> i want to throw one other example out before we get to another question. there is another kind of information dna and some people like me have paid to get genealogical or ancestral information. one thing you can learn pretty clearly from dna usually his relationships in terms of where you came from. that's pretty iffy but whether someone is your genetic father as well as the person who taught you how to throw a baseball, changed her diapers occasionally and so on. you can find that out from genetic information. there was a case, in this case several years ago now as a kid who had known that his father was a -- who at age 15 did some snooping into some genetic genealogy and ended up telephoning a guy and saying hi mecca think you are my dad. the guy had been a sperm donor after a condition
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of anonymity. he did not want to be contacted. without reaching any kind of confidentiality one smart kid using publicly available data was able to trace back down. if we get whole genome sequencing on everybody in the family we may learn secrets that we may not want to know. if two siblings are in fact half genetically similar but a quarter genetically similar that says something about whether they generally shared the same genetic parents are not. that's another area of privacy involving family relationships that i think we have to lease think about when we consider genetic privacy. >> when you made your presentation you talked about the statistics with a number of different loci one which was won in 50 and another another which was won in 70 and then based on the presumption that if you multiply them together there would be won in 3500 that an individual would
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have the same to loci. that gives the assumption that there is no overlap. in that context in that particular light of the king case there is concern with regard to the coda system which is completely controlled by the fbi and the government and which is not made readily available for general research that there is a bias within that system that isn't being disclosed are evaluated and i know that dr. k wrote an article called what is the fbi afraid of? in that context, is there a need to make this codas system completely transparent now that every time someone gets arrested their mouth will be swapped in the database created? >> there are two questions there. the first one regarding the case i presented, part of the evaluation that i had 2% was of the reference population in which we made those
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estimates of one and 70 and 150 and so forth. that population was don codas and in fact codas didn't exist back then. that was a population where we had 200 persons of european ancestry and in making that determination of independence i have to testify about all the procedures that were done to demonstrate independence in those data. that's a matter of public record. all of that procedure was completely open and disclosed. the second question was about codas and my feeling is a scientist is a database like that he identifieidentified should be available to any bona fide research or to be evaluated in any way for its validity
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and now there several working groups who have done these kinds of evaluations. i think it should be broadly open to the scientific community for evaluation. >> david what did you conclude that the fbi was afraid of? >> the fbi's position is this codas database and convicted defenders is not a very good database for genetic research. it contains many relatives. we don't know how many any try to test independent sources that way. second they raised an ethical issue along the lines that we just heard about. even if you de-identify the database that would be a problem but a lot of it is a nonargument. so that was their position and basically even talking to ex-people from the fbi, they i guess you could say this codas run their
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thing and it's their toy in the eye don't. [inaudible] >> i think it may take something like a judges decision at some point to give defense counsel access to it. >> there have been lawsuits to that effect. the arizona database or local state database was provided as a result of that in the research did not show any major problems. australia's database was given in seattle populations. he found basically good agreement where the assumption was used in his calculations. several other countries countries -- it's not like there no studies of the sort that have been done with convicted offender databases but the largest in the world has not been studied in that way. >> the fact that isn't allowed to be studied a think raises questions that could be resolved with study. >> thank you. there are many federal laws that prohibit for example discrimination on the basis of race.
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there are cases in native american law that say has recently as her brown 1920 that native americans are an inferior race and that follows other decisions that talk about other people being of inferior races. is there any genetic basis for any other scientific basis that supports the concept of grace? >> other than man being an inferior race? >> i will speak to it which is race is more likely a social construct that they were certainly ancestral components that we see in genomics. we can see differences based on different ancestral patterns. so it may be that we
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will put genomics get to a place with greater precision in dividing people up by different heritage and by different ancestries rather than by the constructs of the phenotype of a persons skin. looking at a person tells you far less about their ancestry than being able to look at their genomic heritage, their mitochondrial dna which is the maternal contribution in a pattern over time and being able to see phenotypes that way through that kind of grouping. there have been some interesting articles that different legal scholars have written to talk about are we going to have a new kind of racial profiling or ethnic profiling based on genotypes? we are not there yet but it's certainly a question people are asking which is it possible that certain inheritance patterns or ancestral patterns have an increased prevalence
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of for example low expression genotype in which case we might end up starting to say well subtype a or you be 31 or whatever that is is more likely to have criminal behavior or this subtype is more likely to have higher iq predispositions. that could happen. we are far off from that happening. it's unlikely since hank said there such a complex set of factors that go into the expression of behavioral traits but certainly a possibility. it must come much more precise than just looking at a persons skin. >> i think genetics has really helped us with this concept of race. most scientists in my experience don't really like the term or the concept of race because it's too broad a classification. it's a blunt tool for a
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very complicated issue. when we look at a genome what we often see with individuals is some of their genome comes from africa and some comes from asia and some of the comes from europe. a lot of us are very interesting complicated mixtures and actually has important public health implications because you may have a particular section of chromosome that is usually found in european individuals and harbors a disease susceptibility variant taking place in that population but on another chromosome you may have ancestry from let's say africa. because we are often complicated mixtures, genetics and lightens the sun also tells us that race is too blunt a, too crude a tool to answer most of the important questions we face. >> in the not very long run we actually are all african.
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within the last 80 to 100,000 years all of our ancestors were in africa. maybe a little longer and we are all literally cousins. some of us are second cousins and some of us 200th cousins but recently when my colleagues at stanford stanford -- published a paper with new information about the y, some it looks like all men and all women's fathers have a y chromosome that had a common ancestor 80,000 years ago which is about the same time we all cut got from a common mother the mitochondrial dna that comes from the maternal line somewhere around 80 to 120,000 years ago. that doesn't mean they were just to two people one at them two people one abdomen one e. but each one of us is descended from the same person at a tiny part of our dna from 100,000 years ago we are all cousins and we are not
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very distant cousins. a band of chimps is 10 times more genetically diverse than the entire human species because we are a new species and a closely related one. i think that's the most important lesson genomics can tell us about race. >> this question is for professor novak but it may spread a little bit to the panel. i know your time is short and one of the points that you are making about the work in yugoslavia was the potential for collaboration between what you do and then maybe what genetic identification can do and can you take a minute and just elaborate on that? >> thank you. as we all spoke about our subdisciplines and what we do, what i think is important to understand is that this work is collaborative.
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the work in the former yugoslavia that is ongoing now has benefited greatly by advances in genetics. ban has dan has been over to the lab and seen what they are doing. so many times we are working in the lab with geneticists so as we get these call mangled remains, we would help sort and help match because today it's not possible to test every little bit of bone. that's not reasonable but in the initial sorts that we would do and then working with the geneticists to try to do a positive i.d.. so it's collaborative work. no one is the real superhero in these labs even though they make a it sound that way, that we come in and identify these individuals.
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along with that has been amazing work with database and stripping identities and working with descendents of families. i think the former yugoslavia has been particularly challenging in that you would have all the men and a family and extended family had died. some were in the same grave and so trying to get those matches from families that have moved to the united states or move to other parts of the world was really a heroic effort by icm p. and various human rights groups. so i think what the former yugoslavia has taught us how we can work carefully with law enforcement, still collect evidence, still collect the data needed for prosecution but also how to work closely with human rights groups that their primary interested
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is in getting those individuals back to the families of those families can claim death and have some income where they have none at all. >> i've been trying to to -- and we are near the end of that time. i suspect there are more questions and there are people at the microphones. my own e-mail is available easily on line and i'm sure all of my colleagues academic e-mails are available on line and i would be happy to take follow-up questions either at lunch or the e-mail subsequently and i suspect i speak for all of us and i'm sure i speak for all of us and saying thank you for listening to us for the last three and a half hours. [applause] ..


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