Genetic Witness: Science, Law, and Controversy in the Making of DNA Profiling

Chapter 7: The Debate in Washington

146 While all participants in the debates over DNA evidence conceded that the FBI’s technical standards had clearly become dominant over Lifecodes’ and Cellmark’s by 1990, the fate of the bureau’s population genetics and statistical methods used to calculate the probability of a random match, as well as the social arrangements that it had created to ensure the validity and reliability of its evidence, were hotly contested. Witnesses from both sides of the debate believed that a nonpartisan, extralegal mediator needed to step in. It was in this context that the U.S. Congress carried out hearings on how to regulate DNA identification in the criminal justice system. Many people involved with DNA profiling hoped that the National Research Council’s forthcoming report on DNA Technology in Forensic Science would provide a definitive set of recommendations to Congress on how to ensure the validity and reliability of DNA evidence and would help resolve the population genetics dispute that had emerged in Yee. In the end, such hopes proved to be spectacularly unfounded. In understanding the failure of the first National Research Council (NRC) report to resolve the “DNA Wars,” it is important to realize that the NRC committee explicitly sought to blend scientific facts, technological standards, concepts of conservatism and regulation, as well as notions of justice in their solutions to the problems that had been plaguing DNA profiling in court.One of the major reasons why the NRC committee ultimately failed to achieve closure was that the FBI, and many members of the scientific community on both sides of the debate, rapidly recognized the hybrid nature of the report’s recommendations and disagreed with the particular orderings of science and law that the committee had constructed. Specifically, they believed that the “ceiling principle,” the solution proposed by the committee to solve the problem of population substructure, was unnecessarily conservative and was not based on sound science.In many ways this was true,since the basic purpose of the ceiling principle was to limit the frequency of a particular allele in a DNA profile from dipping below a purposefully conservative level The Debate in Washington















c h a p t e r 7 Chap-07.qxd 6/28/07 10:00 AM Page 146 the debate in washington 147 (5 percent). This action ensured that the probability of a random match between two profiles remained relatively high compared to what would be calculated using actual allele frequencies (e.g., 1 percent). Using its political power and control over the forensic science community, the bureau actively sought a new report that would reconfigure the relationships between the natural and the social in ways that were more in line with their views about the world. Specifically, they sought to maintain the apparent boundary between scientific and legal issues, leaving them to be resolved independently of one another. The second report issued by the NRC was much more to the FBI’s liking, thanks in part to the tremendous political pressure that the bureau placed on the NRC and the exclusion of committee members that may have been sympathetic to the ambitions of the first report. Debate over the DNA Act(s) of 1991 Congressional debate over the validity and reliability of forensic DNA evidence continued in June 1991 with a joint hearing before the House Subcommittee on Civil and Constitutional Rights and the Senate Subcommittee on the Constitution.1 Much of this discussion revolved around the boundaries of forensic science in relation to the other realms of science and who possessed the authority to regulate forensic laboratories. While the FBI and its supporters argued that forensic science was a unique branch of science, because of the conditions under which it operates, and could therefore only be regulated from within, others believed that forensic science should be treated like any other science and be open to scrutiny from outsiders. The hearing opened with brief messages from Representatives Don Edwards and John Conyers (D-Michigan) hinting at various problems that had emerged surrounding forensic DNA evidence since the first hearings in June 1989 and highlighting the need for appropriate standards and proficiency testing to ensure that DNA typing lived up to its enormous potential. Interestingly, despite the recent events of Yee, population genetics was only tangentially mentioned in the hearing. Central to this hearing was a discussion of recently proposed bills in the House and Senate that would...