July 2001. In a tense courtroom in Utah, a plaintiff’s attorney is presenting evidence that could seal the case against the defendant, who is charged with child rape. A spot of blood from the defendant’s undershirt yielded DNA that appears to match the victim’s. But the defendant’s attorney argues that the evidence violates the court’s standard for admission of scientific evidence. The method used to analyze the DNA, PCR-STR-DNA testing, works by identifying unique tidbits of DNA that are like fingerprints of a person’s genetic code. The defense claims that the method is new and therefore unreliable. But a geneticist from the University of Utah School of Medicine testifies that the probability that the DNA belongs to someone other than the victim is 1 in 215 billion.
The prosecution presented voluminous literature and expert testimony to steamroller the defense’s claim that the result was unreliable. An uninformed judge might have been overwhelmed by the subject matter, but judge Sheila McCleve had done her homework. She had attended a series of seminars in genetics to understand how DNA analysis works. McCleve ruled that the court had not abused its discretion by allowing the result of the DNA analysis to be presented. McCleve later told the geneticist who conducted the seminars that what she’d learned there had helped her grasp the scientific complexities of the 2001 case. Her opinion was upheld by the Utah Supreme Court and has become the legal precedent for the use of PCR-STR-DNA testing in the state.
The seminars the judge attended are part of a congressionally mandated program to help judges evaluate scientific expert testimony and interpret scientific evidence presented during trials. In 1993 Maryland lawyer Franklin Zweig recruited scientists to teach science to high court judges through his nonprofit organization, the Einstein Institute for Science, Health and the Courts (EINSHAC), which soon grew into a national endeavor funded by the U.S. government.
UNC geneticist James Evans is an instructor in the program, which includes five to seven scientists nationwide. Evans, a forty-nine-year-old professor of clinical genetics, sports a tie with a DNA double helix snaking through its length; he has an air of animated enthusiasm while discussing genetics. When the North Carolina Supreme Court sought the help of EINSHAC to teach science to judges in the Southeast, Zweig approached the dean of the medical school at UNC. The dean’s choice for the program was Evans.
Evans, who had always been drawn to nontraditional applications of genetics, accepted the responsibility. His eyes sparkle as he talks about his motivation for joining the program. “I’ve always been interested in the law,” Evans says. “I like teaching, and I love genetics. So it seemed like an interesting proposition.”
Soon he realized he had made a wise decision. “It was absolutely fascinating for several reasons. The judges were a great audience to teach because they’re very intelligent, very motivated, and yet they don’t know a lot about the subject,” he says. Medical students often come to his classes having already heard inaccurate or confusing presentations about genetics. “That’s why it’s exciting as a teacher to get at a group of people who are very smart but untainted by prior instruction.”
Lynn Jorde, the University of Utah geneticist who testified in the child rape case, has worked with Evans for more than a decade. “When Jim gives a talk before the judges, it’s very clear that he really cares about the subject and that he cares about introducing judges to it and about helping them understand it,” she says. “He’s a marvelous teacher.”
In the last decade, Evans has taught more than five hundred judges in the United States and abroad, including trial court judges, state supreme court judges, federal district court judges, and appellate court judges. In Denmark, Norway, Canada, Australia, Israel, Chile and the Philippines, Evans and his team have taught supreme court judges. The classes, which take place at universities or conference centers, include interactive lectures and adjudication clinics where judges work in small groups on hypothetical cases to arrive at rulings based on scientific evaluation of facts.
The judges also get practical experience in genetics; they isolate their own DNA from cheek swabs or mouth rinses, amplify the DNA using a polymerase chain reaction, separate the DNA fragments by gel electrophoresis, and analyze their results with the scientists. “These are judges who have been hearing about DNA in the courtroom, but they have never seen it,” Evans says. “It has a mystical connotation to them. For them to be able to hold their own DNA and see it is a visceral experience. That demystification is the single most valuable aspect of what we do.”
Many of the judges who participate in Evans’ lectures apply their knowledge in courtrooms. During one of the laboratory sessions when the judges isolated DNA, a judge walked up to Evans.
“How much DNA is here in nanograms?” the judge asked Evans, holding up a tube. Evans eyeballed the quantity and replied, “Probably about ten thousand nanograms.”
A look of relief lit up the judge’s face. “Oh, good,” he said, and started telling Evans about a case he had ruled on. The prosecution had found some DNA that belonged to a victim, but the defense claimed the amount of DNA was so small it could easily have been contaminated. “I eventually bought the defense’s argument, but I was very unsure, and I’ve lost sleep over that,” the judge said. The amount of DNA from the victim had been about a nanogram, and the judge had correctly thought that it was too little to be substantial evidence.
When prosecutors and defense attorneys use expert witnesses to give scientific testimony, judges have to know how to evaluate what the scientists say. “Most people agree that there’s real potential for mischief when you’ve got a system like ours where you have hired guns from each side,” Evans says. “If a judge doesn’t have some grasp of the science, you have a potential for problems.”
He’s quick to add that the goal of the program is not to make geneticists out of judges, but to give judges a solid foundation in genetics. That foundation helps them decide when to permit scientific testimony in a trial and teaches them to recognize evidence that smacks of pseudoscience. The imprimatur of science is not a guarantee of legitimacy, Evans says.
Evans spends a substantial portion of his lectures teaching judges about the science of behavior. Genetic perspectives on behavior allow judges to see the notion of culpability in a whole new light. While the use of behavioral genetics in courts may unleash an array of thorny legal and ethical conundrums, judges are grappling more and more often with the genetic underpinnings of unlawful behavior. Evans also says it may not be long before science makes it possible to use functional MRI scans and PET scans as sophisticated truth potions and lie detectors in courtrooms. “If one can get a neuro-imaging profile for when somebody is lying and when somebody is telling the truth, that sort of evidence could bring up scary questions in a court of law,” he says.
Courts sometimes mandate the use of psychotropic drugs to treat patients suffering from mental illnesses. When judges understand the genetic proclivities for violent behavior, Evans suggests, similar treatments might also apply to those accused of violent crimes. “I am not advocating genetic determinism. We are far more than our genes. But they matter in our behavior, and it will be important to see how these issues play out in courts,” he says.
Marvin Garbis, senior district judge for the Maryland district, who has known Evans for nearly a decade, says, “Jim is a particularly talented speaker and teacher. He has a great way of teaching that enables intelligent people lacking a science background to understand the basics of genetics.”
Scientific knowledge helps judges do more than evaluate criminal evidence. Evans cites the case of Kitzmiller v. Dover Area School District. A district court judge ruled in 2005 that a Pennsylvania school board had violated the First Amendment by including intelligent design in the school district’s biology curriculum. “The judge wrote a stunningly insightful opinion when he said, ‘No, this isn’t science,’” Evans says. “He understood what science was, and that turns out to be an important thing for judges.” John Jones, who wrote the opinion for the court, has attended Evans’ lectures and has been the keynote speaker at a few sessions in which he deconstructed his decision.
Besides the classic example of DNA fingerprinting in forensic cases, Garbis says, genetics enters the courtroom in cases of privacy, access to genetic information, paternity, medical malpractice, genetically modified foods, and the right to engineer genes to produce designer babies. “Legislatures don’t decide on these difficult questions,” he says. “They simply leave it to the courts. And the courts do their best, but they need to have enough scientific understanding to be able to comprehend what the experts say.”
Evans observes that a challenge in teaching genetics to judges lies in adopting an approach that doesn’t overrely on mathematics. Judges, like most nonscientists, are intimidated by math. “You’re dead if you go too far down the road of statistics while teaching judges genetics,” Evans says. But geneticists routinely deploy mathematical skills in the course of their experiments, even more so than biochemists and molecular biologists. So, Evans says, he tries to teach judges the concepts of genetics without delving into its mathematical aspects.
Garbis says another problem facing judges trying to understand science is the ephemeral nature of scientific fact. Judges, he explains, are loath to arrive at rulings based on facts that might well turn out to be misconceptions in the future. Science deals in probabilities, forcing judges to rely on their best guesses when deciding cases that hinge on scientific fact. “Sometimes judges have to make a decision at a time in history when the scientific answer isn’t known,” Garbis says. “At the same time, since the ultimate decision will be based on a combination of scientific understanding and balancing of societal interests, we don’t want to delegate that to the scientists.”
Judges now come to Evans’ lectures in droves. “I’ve been stunned by the enthusiasm they show,” Evans says. “We have always ended up turning judges away from these venues.” Though popular, scientific education for judges is not required. Evans hopes the program will train enough thought-leaders among judges to spread the word about science education for the judiciary.
Evans proposes a system in which courts could tap into a certified pool of judges who have been trained in science and whom courts would compensate for serving in trials. But administrative hurdles, the difficulty of finding unbiased instructors, and cash-strapped courts make this unlikely to happen, he says.
Garbis suggests that such a program would fail if it were mandatory, mainly because of funding issues and a lack of motivation among some judges to learn science. But a voluntary certification program, he agrees, would serve the judiciary well. Garbis notes that finding scientists of Evans’ caliber to teach judges basic science is no easy feat. “We’ve discovered over the years that the better scientists are better able to teach at a basic level because they don’t have to hide their insecurities in scientific jargon,” he says.
Evans adds that his own gratification comes not only from transmitting information to the judges, but also from giving them some of his enthusiasm for genetics. “It’s one of the true highlights of my career because they’re an endlessly fascinating bunch,” he says. “It’s enriching to get to hang around people who’re doing something completely different and very important.”
Prashant Nair is a master’s student in medical journalism at Carolina.
James Evans is a clinical professor of genetics in the School of Medicine.