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Technology evolves much faster than the law can keep up and this is more so with Genomics. DNA Technology over the years has become more accessible, affordable, accurate, and efficient than it has ever been. Of course much has been debated and written about the unethical and possible use of DNA sequencing technologies in investigations by the state and its use as a piece of evidence in criminal prosecution but thanks to the advancement in technology and its acceptance in Courts across the world, defendants have now started to use the same technology as a defense against a crime very much committed by them. Meaning, to use DNA Technology to prove a person not guilty of the crime he is charged with, or at least to reduce the seriousness of the charge.

A dangerous cocktail?

Like any other normal day, Penny Waldroup along with her four kids and friend arrived at her ex-husband’s trailer in Tennessee, USA, only to leave in an ambulance after having been shot, sliced, hit on the head, and missing a finger. In a fit of rage, Penny Waldroup’s husband Bradley Waldroup who was intoxicated, before attacking her, shot Penny’s friend eight times, later cutting her head open with a sharp object and killing her. The case was plain and simple. The Prosecution team charged Bradley Waldroup with the murder of the friend and attempted first-degree murder of his wife in a rarest of a rare case that should have attracted the death penalty. However, the jury ended up convicting Waldroup of voluntary manslaughter (not murder) and attempted second-degree murder of his wife in State of Tennessee v. Davis Bradley Waldroup.

So, what made the jury change the charge of murder to the less serious charge of manslaughter which only carried a prison term and not the death penalty?

The defense team did not focus on what happened or how it happened on a particular day since Bradley Waldroup himself admitted to the killing and attack on his wife and then there was all the evidence in front of them along with Penny Waldroup to testify. Rather, the defense team focused on why it happened. The question boiled down to why did Bradley Waldroup react in such a violent manner. The answer to the question was in Bradley Waldroup’s genes.

At some point in time, we all have either blamed or thanked our genes for a trait or ability in us. Bradley Waldroup’s defense team blamed his genes for his actions. It seemed that Bradley Waldroup carried a high-risk gene known as the Warrior gene, a particular variant of the MAOA gene which is linked to anti-social behavior or even violence. Coupled with his troubled past where he was abused as a child and him carrying the warrior gene explained the way he reacted on that particular day. Hence, the argument came down to whether his actions were premeditated or in the heat of passion? His defense team made sure to hammer the point, though the outcome was unfortunate, that Bradley Waldroup acted the way he did due to the bad genes and his abusive childhood. He did not get to choose the genes or his childhood and hence his actions were not independent but due to the underlying factors which made him react explosively on the day in question. Hence, the actions were in the heat of passion and the conviction of a lesser charge. This brings up the dangerous cocktail of genomics and law.

Born bad

For a person to be convicted of a crime, two elements must be reckoned with. One, there should be an overt act or omission by the offender that constitutes a crime. Two, there must be an intention to commit (act or omission) such a crime. It is very well established under the doctrine of criminal liability that both the act and intent must concur to constitute the crime. For example, a person hit (the act) another person on the head with a brick and he/she hit the other person believing (intention) that it would kill him/her. While it is easier to prove the act through evidence, it is rather difficult to prove the intention, and the point to be noted is that the motive to commit the act does not account for.

However, the Indian Penal Code and criminal laws across the world do have certain general exceptions to acts committed which may not constitute a crime. For example, the act of a person of unsound mind. According to Section 84 of the IPC, nothing is an offense which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. There are many other exceptions such as the act of a child, accidents in certain cases, acts of a person incapable of judgment by reason of intoxication caused against his will, acts done with consent in good faith, and so on. Now we arrive at the important question, can evidence of genetic predisposition to commit a crime to be used as an excuse or exception as in the case of Bradley Waldroup? Can the defense argue that the accused is innocent or not guilty of the charge since he/she acted in a certain way due to the presence of certain genes and a mixture of other unforeseen circumstances that led to the crime? This is uncharted territory and we must tread carefully since it opens up a whole new world of possibilities. For example, whether the defendant was intoxicated or not might depend upon genetic evidence since certain genes in part determine the rate at which alcohol is metabolized. Hence, the defendant may introduce genetic evidence that he/she metabolized alcohol more quickly which may have a bearing on the case. Similarly, the defendant may show evidence that the victim suffered from a genetic defect that independently caused his/her death and that the defendant’s act was not solely responsible or the cause of the death.

So basically, a person is born with certain (bad) genes which makes them more prone to violence or crime which is aggravated by certain incidents in their upbringing and hence not blameworthy of the crime is the argument. The genes determine who they are, and who they determine the commission of a crime. Hence, they should not be punished.

This raises another issue. If it is known that their genes make them prone to violence, isn’t it, even more, the reason to keep such persons away from society? If a person is aware of his/her genetic predisposition to violence/crime, then isn’t it his/her moral duty to take precautions? If they do not take precautions, then who is to blame?

Should Courts accept genetic evidence?

Should Courts accept genetic evidence as in Waldroup’s case? It’s difficult to say and needs much broader and deeper consultation. As of today, the only area where the Indian Evidence Act talks about DNA testing is under Section 112 as proof of the legitimacy of birth.

If we start to accept genetic evidence as argued in this article, then in every criminal prosecution we might have to consider the genome of the accused and all the situations that have befallen him over the years. In such scenarios, every crime becomes inevitable and every defendant may argue that his/her action was due to a combination of genetic factors and situational circumstances. This might as well lead to the end of the criminal justice system.

To be proactive

In India, at times we tend to see crisis legislation or legislation to deal with the past, be it cyber-technology, information technology or even biotechnology. There is a need for legislation to predict and pre or co-evolve along with technological development/evolution. Since the DNA Technology Regulation Bill is expected to become an Act, it is necessary to dwell on other dimensions and opportunities it brings with it.

Today, an entire genome can be copied and sequenced in a day which has very much opened a Pandora’s Box for new possibilities. Neither should the courts accept genetic evidence as argued in this article in totality nor should they shun genetic evidence absolutely. The criminal justice system should be open to new areas opened up by the development in technology and use it to their advantage judiciously while ensuring justice is served. It’s time to also educate legal practitioners on Genomics through an interdisciplinary approach since law can no longer be divorced from technology and justice cannot be left to biology.

© The Eastern Herald
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An advocate at High Court in Bangalore, India. A Contributor to The Eastern Herald from Bangalore in India

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