>> the 60s were different. [laughter] and there were a lot of things

happening involving race, the break down of structure in society. i was suddenly out of the seminary and there were no rules. things were falling apart and you know without structure it's very difficult to navigate. i was extremely fortunate to be a -- i was extremely fortunate to still have had a residuum of the way i was raised and the structure that the nuns had given me and the structure that the seminary had given me. i was also strictly fortunate because i had already been in predominantly white schools. i was the only black kid at my high school in savannah so the transition to a school with very few lacks in a very difficult set of circumstances academically and otherwise, i had sort of a jumpstart. i was ahead of the game so i had

something. it allowed me to continue to do well even though it was very very difficult. >> now a conversation on genetics and law from the tenth circuit bench and bar conference. a symposium about forensic science in the criminal justice system. in colorado springs, colorado, this is an hour and a half.

>> let me try the experiment with a microphone. all right. okay, how is this? great. good morning everyone. it's a pleasure to be here with you today. i would like to thank the organizers for inviting me to come to this very beautiful place. what i would like to talk with you about this morning, as was mentioned we will start with the very basic review of dna, what is dna and how does it work and why should you be interested in it? i will focus on an important intersection between dna and the law and forensic applications and i will illustrate some of the points with case studies in

which dna has been used in forensic contexts. so our body is a marvelous collection of about 100 trillion cells and inside almost all of these cells is the nucleus of a cell here. we can find dna. the dna is organized along chromosomes. he can observe the center of microscope and if we look very closely at these chromosomes, we see this double helix structure, the classic structure of the dna molecule. along the dna are these bases and its dreams of those bases that compose genes. we humans have about 21,000 genes and each gene and codes an important component of our body an important protein or enzyme.

so we can think of the dna sequence as the body's instruction manual. it's the shop manual for the human body. i will show you a little of the sequence here and you can't read this. this is about 3000 bases, dna bases, a very tiny proportion of our total dna sequence. in fact each of ourselves our cells has about 3 billion dna-based pairs. so what i'm showing you here is roughly 1 million of the human genome and the genome is our entire dna-based sequence. if i were to show you a picture like this, one every second it would take me about 12 days to show you the entire human genome. that's the amount of information we are looking at when we ask to try to sequence a whole human genome. that is one of our major goals today in human genetics is to provide whole sequences of humans and other animals as well. that sequence allows us to

understand more about our predisposition to disease like heart disease shown here. with about 90% accuracy. if i had the dna sequence i can predict your eye color so if we have for example a saliva or blood sample from a crime scene became predict certain physical traits with some degree of accuracy from the dna sequence. for a long time the barriers in obtaining these sequences was cost. this slide shows you the cost of the first human genome sequenced in 2003. the cost of the human genome project altogether was about $3 billion. that's a lot of money but if you think of what we spend on health care every day in this country that's about 10 hours of health care spending. it helps put it in perspective. a few years later in 2007 a second genome was sequenced still at the cost of $100 million. when we started sequencing human genomes in 2009 the cost had come down to $25,000 because of

technological developments. as at the end of last year was down to maybe three or $4000 to sequence a 3 billion-based genome so that represents a full decline in price in less than a decade. i don't think there's any other technology that can boast that kind of the declining cost in so little time. now for about the cost of an mri became get your entire dna sequence and unlike an mri results are sequence won't change. so this gives us a tremendous amount of information about each and every human sequence and now tens of thousands, hundreds of thousands of people are being sequenced in various mostly biomedical studies. i will mention the first human family i'm happy to say the first human family to be completely sequence is a family from utah and it happens to be my wife and our children.

for me we had an exercise in personal genomics. it turned out to be very fulfilling. so occasionally in our dna sequence, here's the sequence shown on this slide the double helix bases occurring in pairs. occasionally an alteration occurs and this is what we call in mutation. it turns out in something we learn from sequencing that first family we were able to estimate the rate of mutation and how often do this actually occurred? each time we reproduce the transmit about 30 new mutations to our offspring. most of these are in the 99% of dna that is not encoded which means it doesn't actually make proteins structural components in the body but occasionally these mutations do a fact that genes so that they can actually cause disease. this is a great quote from lewis thomas who said the capacity to

blunder slightly is the real marvel of dna. without the special attribute we would still be an aerobic bacteria and they would he know music. [laughter] i think that's a lovely quote because it tells us these mutations, the introduction of genetic dictation allows us to adapt to changing a changing environment and gives us the wonderful physical diversity we see in a roomful of people like this. although mutations can cause disease it will also allow us to adapt and we should be thankful for it. the natural question that comes up in this context is how much do we differ? if these mutations are happening every time we reproduce how much variation is there among humans? if we look at identical twins these are nature's clones. identical twins differ at essentially zero dna aces. that's not quite true but it's close enough. they are identical at the dna level. if we look at unrelated humans

if you have any guesses as to how much an unrelated pair of humans differs at the dna level level -- it's not very much. one in 1000. at the dna level for most fundamental unit of our biology, we are 99.9% identical. there is an important right there. if we compare ourselves to our closest biological relative the chimp we are 99% identical to the chimp. these are sequence as we can line up and compare. we compare ourselves to the mouse we differ at about a six to one third of our genes. for a mouse as you would expect we are more different than my sand thank goodness compared to brocolli we are mostly different from broccoli at the dna level. [laughter] but if you think about it we have 3 quintillion dna bases even if we are 99 .9% identical.

that means there are 3 million differences on average between each pair of humans. doubt that's important because that provides the basis for forensic identification. each of us is genetically unique unless we are an identical twin. there are roughly three to 4 million differences between individuals and that means there are at least two to 3 million possible combinations of these differences. in other words assuring that all of us are genetically unique. the implication then is if enough genetic very nation is tested each of us could be uniquely identified and we don't need to look at every difference. we just need to look at a subset of those differences. dna as you probably know is found in nearly all cells of the body, the blood, the hair and even quite often in fingerprints. we can actually get sufficient

dna for analysis. that means the dna from an evidentiary sample can be matched and compared with dna from a suspect to implicate or exonerate that person. that is what i will be talking about now for the next several minutes. now we have some examples of dna identification with saddam hussein or the man they thought was saddam hussein was first captured. one of the questions was this really is saddam or was it a decoy? dna have been extracted from his sons earlier that year and the dna profile was created from the suspected saddam, compared to his two sons and there was a match between the sons and saddam for a number of dna locations, helping to prove that this was in fact saddam hussein. just last month this article was published, where the last victim

of the boston strangler, dna was identified on that victim who could be traced to a family member to albert disalvo the man who had been accused of being the boston strangler but who was killed in prison before he was tried on those charges. and of course we have this famous example the world's most famous navy blue dress, the one on which a dna sample tuned to a he said she said case into a presidential impeachment. dna evidence has served very important roles in a number of high-profile cases and everyday crime is well and i will talk more about that. so what are we actually looking at when we try to identify people from the dna? we use something called a short tandem repeat and i am illustrating that here. here is part of the sequence and what you see is part of the sequence is repeated over and

over again. that is why it's called a tandem repeat and its short one. it's only for basis. the important thing is these repeats tend to vary in their number from individual to individual so on the copy of chromosome five that i got from my mother i might have five repeats and on the copy that i got from my father i might have to repeats. if we look at hanks the innate we might see that he had six copies on his paternal chromosome and four copies on his maternal chromosome. that means if you compare hanks dna in mind you'd be able to tell by the repeats in a specific location of the genome. and here are some specific locations. these are the 13 combined dna index system. these are the core short tandem repeats that are typically used in their forensic application. they are seen on different

chromosomes that helps to ensure they are independent of each other. suppose we want to look a couple of these. we can label them with a blue or green label here and then what we have to do is make lots of copies of just that little piece of chromosome that has that repeat in it. when we use a technique called pcr to do that so this is sort of our xerox machine for dna. this is a pcr machine in my lap so what we do is take dna from an individual and be loaded into that machine and what comes out our dna fragments just the ones that contain the repeat we want to examine and importantly from individual to individual the sizes of those fragments are going to be different. they are going to be different in length because of this variation in the short tandem repeat number. now to assess those we use a

process called electrophoresis and we take dna products in this case from five individuals. we love them into a gel like this. we apply an electrical current to that gel and what happens is the shorter smaller fragments, the ones that have fewer repeats tend to migrate to the gel more quickly. if they are smaller they can wiggle through the gel rapidly and if they are are larger it takes them longer to get to to get through the gel. then we can start to see patterns. these are five different individuals, five different patterns. these are two different locations so these are two different as t.r.'s and you can see there's a lot of variation from individual to individual in the pattern of these s. t. r. lynx. so let's take an example. here we have several dna samples that we are going to load into the gel gel and they have the victim's dna and an evidentiary

sample and three suspects. we are going to load for different str's. we might find suspect one, suspect two or three left dna and none of them left retrievable dna at the crime scene. multiple suspects may have left dna or the data could be inconclusive. still we take our dna samples from the victim of the evidentiary sample and from the three suspects load them into our gel. those are the pcr products appear. we let them run and we look at rodham -- patterns. we see a match between evidentiary sample and any of the suspects. shout out if you see which suspect matches the evidentiary sample. number one, that's exactly right that is essentially what we do. we look for a pattern match

between the evidentiary sample and any one of the suspects. now if you are looking at the crime lab report now you would get something that looks like this and this is essentially what i just showed you turned on its side and each peak represents the position of one of those fragments that i just showed you. here are the smaller ones in here at the larger ones and we are looking at 10 different str's all at once and these are two samples. an evidentiary sample, a suspect sample and what we look at are the decisions of these peaks for example for d16 here in d16 here would you say this is a match or not? no, it's not a match. this is an exclusion. these are in different locations. so i will take you pick a study to illustrate how we use this in real practice. this was aptly my first dna case back 20 years ago. michael scott did corso was accused in a homicide case in

salt lake city. there was no dna evidence that was identified ultimately through a fingerprint on a piece of duct tape but he was accused of the rape of 214-year-old girls in salt lake city. there were samples from the rapes so the question was does the dna from the evidentiary sample matched the suspect? at that time the crime lab is using what were called rfl he's but the same principle another kind of tandem repeat. the same principles apply here. but we have loaded into this gel we have the victim's dna and the defendant's dna and three samples from the evidentiary sample loaded at different concentrations. here is the highest concentration so here is the pattern in the dif and it and here is the defendant in the evidentiary sample. is this a match or not?

what do you think? i see some heads nodding and this was criteria established at the time a match. is this sufficient tube put dicorso in jail and to convict him? probably not exist we have to ask the question how common with this profile be in the general population so we looked at statistics that i won't talk about here and we estimate the frequency of this profile in the population of european ancestry is about one in the. so it's useful evidence but certainly not convincing enough to establish the identity of that evidentiary sample so we look at another repeat system and another chromosome location. here is our defendant and here is that evidentiary sample. is that a match or not? yeah that's a match so again how

frequent is this profile in the general population and a reference population? it's about one in 70 and now we have two pieces of information one with the frequency of one in 50 in the general population and another with the frequency of one and 70. we can take those two pieces of information and multiply them together to say what's the likelihood that someone has this profile as well as the other profile, one d. if of one 70th and one and 3500. now we have more information. we have looked at the third system. there was again a match. the estimated frequency of that profile was won in 90. a fourth system again showed a match and in this case the suspect got the same length of tandem repeat from both of his parents. the frequency of that is about one in 10 so now we can take all four of those frequencies, we

multiply them together and we say how often would someone in the general population have the first profile, the second one, the third one in the fourth one and that turned out to be about one in 3 million so at that time this was early on. the crime lab was using for the systems that this gave us an overall profitability of the general population having this profile of one in 3 million so that along with other evidence in the case was sufficient to convict dicorso of the rapes of the two girls and convicted of a homicide in serving a sentence of life in prison -- president without the possibility of parole. this just shows several pieces i have been involved in over the years. a year after the dicorso case this was a multiple rape case. jason higgins was accused of the

rapes of eight women in utah. by then the crime law had to find these tandem repeats in the reference population and at that point the probability that someone else had that same dna profile had gone to one in 400 million with the addition of an extra system. by 1999 we were using the pcr -based str's that i talked about. this was a rape case and putting all of that information together we had a random match probability of one in 200 15000000000. one of the questions the prosecutor asked after that was after a percentage that figure was how many people are there on the face of the earthquakes that gives give the jury the idea that it's pretty unlikely that anyone else would have that same profile. an important thing here is the pattern we see as we incorporate more information and these

abilities tend to get smaller and smaller. this case was a little bit exceptional because in this case the defendant was a member of the give blood creed population so conservative -- had to be used in its meeting the probability but as you can see we can get down to small probabilities here in the case of the world's most famous navy blue just the random probability was one in a trillion. dna evidence can be used not only to implicate that can be used to exonerate the innocent. this was the case i worked on a few years ago where he was accused of the murder of former girlfriend and spent 19 years in prison. his y chromosome dna was examined finally and it was an exclusion. so as of this month, 300 convicted americans have been exonerated by this kind of post-conviction dna testing and it's interesting that on average they spent 13 and a half years

in prison, 18 of them had received the death of the add-in about half of these cases not only did dna evidence exclude them, it identified the actual perpetrator. now there are issues of course that come up in dna analysis. dna is not magic. it can be altered. it can be inaccurate so the kinds of questions we have to address our chain of custody, what is there potential for dna contamination. the reference population where we get frequency estimates is that the appropriate population and this is sufficiently matched for ancestral background? and i think this is another important question. is the expert witness really an expert in the area under consideration? so today, the dna evidence is

used routinely in thousands, tens of thousands of criminal cases every year. the code is database now contains dna profiles of more than 12 million americans read most of them are convicted offenders but there are also a rest easy in that database. people involved in missing persons investigations and so forth. from the database that is fairly controversial trolling the database when you have an amp evidentiary database to see if anyone matches it has been used in more than 200,000 criminal investigations. so the use of this kind of evidence has become increasingly common even in for example every day burglaries. dna testing is sometimes used at a cost of around 12 to $2000 per case. there are a number of

interesting ongoing developments in this field. it is possible to estimate the lease approximately the ancestry of the dna sample. this is another controversial area but it has been used in a number of investigations now. take a dna sample and you try to figure out the ethnic background of the person who contributed to it. we can as i mentioned earlier predict certain physical features. there is a specific gene called mc one are where i can get three variants and i can find and detect about 90% of people who have red hair. this is sometimes referred to as the red hair gene. we can predict eyecolor accurately in about 90% of cases. they can even with a blood sample estimate age although its approximate. he can give us some idea of the age of the contributor of that let sample. people are working on rapid detection, rapid dna detection

so a lot of interesting developments, developments that include both science as well as i think the legal profession to decide which of these developments are appropriate and how can we best use them? one of the things i always really enjoy about talking to groups of judges is that you have, this group has the collective wisdom to help figure out how we can use this information, use this information to its best possible purposes and of course to avoid any potential harmful outcomes. so i would like to thank you for your attention this morning and i would be happy to address any questions. [applause] >> we have time for two or three questions. please come up to the microphones in front and remember you will be immortalized on c-span.

>> takes watson tell you where you came from and what your future possible medical problems are, how accurate are those predictions? >> that is a great question. the question is about direct consumer testing testing where d a saliva sample into a company. they type your dna using what we call a dna chip and you get back a lot of information about your approximate ancestry and your risk for a number of disease conditions. it's important that the companies always referred to this as recreational genomics. that's the operative word. they don't claim that these results have sufficient accuracy certainly for biomedical

application for diagnostic purposes let i did send my saliva off to one of the companies and it was quite interesting to get the results back. the charge of that time was $400 i think some of them now or down to $100. so if you take it with a large grain of salt it's kind of fun but where i think it gets trouble medic is really with the diseases that we are most interested, things like diabetes, heart disease and common cancers because they will give you risk information for those conditions. the problem is we in the genetics community have been identified most of the genetic causes of those diseases of people it's in their dna it different companies and gotten very different results depending on which particular test those companies happen to use. i would take it with a grain of salt. it's kind of fun but it is

ultimately recreational. >> sometimes and criminal cases there are accusations when you collect a sample from a suspect. if that is a sample that somehow is then taken and claims to be the evidence sample, so my question is, is there a difference between -- are you going to find the difference between the evidence sample and the collected sample and if there really was too much similarity with that he is suggestion that there actually has been some contamination of the collected sample with the supposed evidence sample? >> the question was if you are comparing an evidentiary sample code and -- collected the crime scene with the sample you have taken from the suspect, could there be suspiciously too great a

resemblance between them such that might suggest contamination? >> yes. >> typically what we see and we see a match if all 13 for example of those core str's retyped all three are going to imagine that is not really a surprise. i think what's really important here is very accurate accounting of the chain of custody of the whole sequence of collection events and there have been contamination issues sometimes due to lab errors and sometimes because of cross-contamination at the crime scene and there are several well-known cases in which the dna evidence turned out to be incorrect sometimes because of contamination and sometimes seek is a misinterpretation of results. we think the rate in general is very low but it has been known to happen.

>> okay, thank you. >> we will have a half-hour of q&a at the end of the panel at the end of the session. our next speaker shannon novak is on her way up. we are moving from genetics to anthropology but staying in the area for in six. shannon will talk about her area of great expertise, what we can learn from bones and other remains. as soon as we find the right powerpoint. >> thank you to the organizers for inviting me to speak to you today. i think i am the anthropology of this section. everyone else is talking about dna. but i am delighted to be here and what i want to do is use the

wonderful setup that land jorde gave us of the genome and the genome type that amazing code in our body that manifests in such interesting ways. but then let's move out of the scale to actual bodies, putting those genes into bodies and the interface between the gene, the genotype and the phenotype, what we actually see, how they express themselves as they interface with the environment, as they interface with an individual's behavior and with historical changes over time. so though professor jorde talked about how you may have a gene that you can predict, hair color or eye color, there's so much that we don't understand about

those genes and how they come to express themselves. and this takes us into the domain of anthropology. and trying to put those genes into bodies that have a long evolutionary history and looking at them across space and through time. so again, anthropology, this wonderful discipline that allows us to not only consider cultural behaviors but the physical environment and the physical body itself and how that has changed over time and across space. now the core of anthropology is one of comparison. i am looking at variation, again across time and space. what you'll see is we will move from different biogeography is,

people's bodies in different places but also through time to look at those changes that are taking place. to be able to move deep time, we are talking maybe two, three, 6 million years ago, we can study those soft tissues and bodies we see around us although the genome has an understanding of time so what we do is return to the skeleton and human remains. many of us that are biological anthropologists study human remains. the hard tissue that is left over and the variety of different disciplines so anthropology or paleontology are looking at deep time.

they are looking at little bits of loan and what i it can tell us about our esteemed ancestors again what they ate and how they interacted with their environment but also their evolutionary relationship between each other. more recent work on the skeletal remains, the more recent history usually dealing with anatomical moderns that of archaeology and this is what i trained in. i was particularly interested in a small group called the fremont that lived about a thousand years ago when i was interested in these people that lived around the margins of this complex society and what it was like to live in that country side and the interactions in particular between groups and within households. i was particularly interested in gender relations and in collective violence between

groups. physical anthropology and dealing with soft tissue and living people and looking at hon environment and how that is affecting growth, the changes in the phenotype but they are still interested in the underlying skeleton. in particular to look at the age of that may be involved in immigration and deportation issues, so that's phenotype is interesting. what we are here for today's forensics and this is a new category on this chart. i've been using this lovely chart to teach for years and years and forensics has been added to the chart. in part, been due in part to the popular culture, obviously bones

and all the crime shows that have been on television but also current offense and hearing about mass graves and the analysis of these remains that are coming from mass conflict has started to make their way into the public reception of the kind of work we do behind the scenes. so what is forensic anthropology a different definition from all forensic anthropologist because they haven't quite decided on what they are yet. it's a new sub discipline within physical anthropology and they are trying to carve out a niche for themselves to specialize in just dealing with medical and legal issues in contemporary events.

so the folks at jpac and still are the individuals working in hawaii on the recovery of servicemen and their remains. they employ a large number of anthropologist. the f. the i employs a few and most anthropologists are employed by medical examiners and they are few and far between. the students are racing in trying to get these jobs and really there aren't that many. if you want to look more at how they are trying to define what forensic anthropology should be, the atsa, the american border of anthropology and trying to come up with standards for the data. most folks involved in anthropology these days in the past have an application of their work so they are called in. the kind of research that we do

has applications to medical legal context so most of us are minding your own business, doing research in the lab and the medical examiner will contact us for human rights work overseas more and more. this is due in part to the unique training that we have this and anthropologists. most of us are skilled in locating clandestine graves, recovering remains, creating biological profiles from those remains and a specialty that we can be of some use to the medical examiners. so now the good part. you get to look at loans. the kind of remains we often work with, we are again working with complete skeletons at times

whether we are forensic specialists or applied forensic folks excavating remains within their context and maintaining control of artifact or evidentiary traces, whatever they may be. we are also very skilled in working with very fragmentary remains. a few here and a few fragments of bones they are or severely altered remains. here you see a severely earned individual and they are just bits and fragments and again whether this is something remains recovered from an archaeological site or in the forensic context we use many of the same different skills. more and more we are being drawn into severely decomposed remains or damaged remains from mass disasters. this is from the former yugoslavia which i will talk

about, my work over there just a little bit today to show you how things that we have learned in an archaeological context or applicable to more recent mass killings and disasters. okay, so whether we are again specialists or whether we are dealing with the application of forensic techniques, we start at building a biological profile of the individual whether it's that wonderful complete skeleton in the grave, the fragmentary or the decomposed in trying to understand who that individual is. so we create something called the biological profile for be asked a series of nested questions moving from putting them in big categories of individuals, is it alone, is it human and that may seem a bit silly but 30% of our work is estimated to be, it's not even

bone. walks come in a lot and it's not human. their claws with like human hands and they come in after hunting season. much of our work is to say no, you don't have to worry about this. how many are there? again, with co-mingling, trying to remove evidence of a body or multiple bodies, sorting out how many folks are in their something we are used to doing with very small fragments. asian ancestry of the individual and that the little stars where dna is helping us these days immensely. that is if we can get dna out of the college in and out of the bones. it's not too degraded or if we are allowed to take samples in the case is working on her native american grave refrigeration act and some populations don't want samples

taken from their remains. if we can, wonderful and we have this great working relationship that helps us. now we have put our individuals into these broad demographic categories now we try to pull them out and individualize them ,-com,-com ma what is unique about their lives that tells us something about them? so disease and activity markers. this individual you can see has had some extensive work. we work with forensic dentist all the time. it tells us the kinds of foods they were eating and the quality of dental care that they had, drama. you can see there is an exit wound above his left eye with a large radiating -- so this will tell us a bit about how he met his demise and then marks of on the phone about postmortem events. was the body moved?

with it damaged in one context, what animals had gotten to it, how had the environment altered that? if we are working in contemporary events, ideally a positive identification and once again this is where the dna really allows a positive identity in a person to be found. for historic context we don't have this name. now i want to turn for the remainder of the talk to the area of trauma. it's an area that forensic anthropology or biologic go anthropologists have a lot to contribute to the medical system and it's certainly the reason i have pulled -- been pulled into cases because my interest started once again

with looking at violence in the past, warfare in the past as well as gender conflict. it left its marks on the bones and there's a lot of history of studying trauma in anthropology. we have been interested in human ancestors when they first started to use tools and caught me off of bones and when they started to break bones open so actually in doing experimental work looking at the small marks on fragments of something there is a long history in anthropology and paleoanthropology. there's also been a long interest in violence. how far back as this collective violence go in warfare? can we really see conflict to twin individuals and groups, has it changed when we get different settlement patterns? how does it change when we get different kinds of weapons?

this is a finally honed skill i would say that has great application. so the understanding of trauma is based upon the biomechanics of bone. we are able to predict a fair amount about how bone will fracture. bone is this wonderful composite material. it's both rigid and flexible because it's made of in -- organic and inorganic material so it allows a great deal of flexibility but then at certain points it fails. so we understand how the loan fails under tension, under compression and certain pounds per square inch and this is what we used to understand the fragmentary nature of what we are seeing in the trauma and the bone. the other questions we ask about trauma, the timing of the event. i'm not going to talk much about

anti-mortar and trauma but anti-boredom trauma is interesting and these are ones that have healed. these are used for biological profile so it helps us with individuals with a rib fractures are in the of this individual, she has a well-heeled fracture, this line right here was a broken nose and you can see how smooth the phone is in an -- in the area. she survived whatever was the broker knows so this is one of our prehistoric fremont females dealing with gender violence. postmortem events and how do we distinguish between what was -- and trauma and what was rodents, carnivores, insects. we then also can start to distinguish the types of force,

classes of weapon. was it a sharp force weapon or blunt force weapon or a projectile type of weapon and how quickly was it coming in? again these elastic and plastic properties of the bone, the faster a weapon comes in it doesn't allow the phone to recover in the elastic face and it fails just like glass. so these areas are fairly predictable about fracture. the problem comes in when we are look at in transit and extrinsic properties of loan. are we looking at round spheres such as they had? are we looking at long tubes such as the long bone and flat phones such as the hip? those will have different biomechanical referees in the physics will change. the underlying structure, the age of the individual. the bone density is going to in a fracture in a way very

differently than it toddler who has lots of collagen in their bone paid the of the individual loan density and the health of course alters that underlying bone structure. and coverings and protections. even the amount of hair on the head has been shown to influence how that weapon can penetrate an alter the fracturing of the bone and of course being human and learning to protect ourselves with helmets alter how we can predict. so when i was first asked to give this talk and i had 25 minutes and judge matheson has heard this talk in a variety of different forms. i said i'm going to get rid of all of my historic cases and judge matheson said oh no but i love the historic cases. the more i thought about it i thought this illustrates really

nicely how we hone our skills in working in cases that are prehistoric or historic and context, how we bring those skills into more medical legal cases and in many ways how what we learned from those in forensic context actually help us to go back to these historic and prehistoric cases and understand trauma and interpret what we are seeing better so there is this wonderful process and an ability to work in both of these worlds. we are learning in those contexts. so the battle of taliban illustrates a couple of cases of violence interpretation. taliban is a really nice one to be able to illustrate to you what blunt force, sharp force and the projectile force looks like before we take it to a more recent setting.

the battle was supposed to within one of the bloodiest battles on english soil. it was a battle of the wars of the roses, the long-running civil war incurred on palm sunday in 1461-amp reportedly 100,000 men were on the field and some 20,000 killed. as with most battle numbers, the numbers are probably exaggerated but we do know that there were thousands of men killed that day. when i was doing my dissertation work on domestic violence in england the university i was working with at radford got called in to excavate a mass grave. the folks that were expanding the garage on the banner house on earth this as they were

excavating and out. 39 individuals that have extensive trauma, they were co-mingled. you can see sorting these individuals out was quite a challenge. but we have wonderful folks that worked with excavation in gpr and you can see the mapping along beside. of course we always have to understand our social and historical context that we are dealing with and this is medieval wound man. this is from a surgeon's guide. you can see we have short -- sharp force trauma here awaits with hammers and projectile so we knew we could be looking for a variety of different wounds. here's a good example of sharp force trauma. this individual had a sword that went through his left eye,

through his nose and down into the mandible and the seem has been a wonderful tool for us being able to say the type to of sharp force trauma and the kind of way late we can see. one force is more difficult to see. it's more nondescript although it gives us these nice radiating raptures, both radiating and circumferential because we know the biomechanics gives us a bulls-eye. some blunt force. if it's very localized it has a shape such as these nice squares and doing wound profiles were able to see that these were the spikes from it whole that were used probably as finishing blows. this individual had multiple injuries and these holes are in the top of the head.

not too many projectile ones that the square hole in the head, it's not so square feel it closely. it's a diamond. it was a diamond with a hole through the medal and that's what happens when facetime into goes all the way through to the skirt but notice the radiating fractures that extend out. you can tell that came in with much more velocity because the energy is being dissipated in those radiating fractures. those more recent events have certainly influenced our work and how we are interpreting events from recent conflicts. while i was working on towton i was part of the team with the smithsonian institution that when introducing human rights work within the former yugoslavia with the break up into smaller units in the 90s. we were asked to work in croatio

many mass graves coming out that the pathologist asked for our help in training in both excavation and to analyze the severely decomposed remains. again, mass graves of a very different sort of nonetheless dealing with familiar features that we saw at towton. coal mingled individuals with the u.n. and so working with them on how to excavate the graves and also how to deal with masses of co-mingled oddities and try to get biological profiles from them. here you see something that looks like it's a body and you can see there is a lag and here is the leg and here's a head and

here are some arms. what happened that we know now in yugoslavia is that many graves were exchanged which damaged the remains as it went through. i have been given one minutes i'm going to finish up just to illustrate against the more the trauma. we didn't see much trauma beyond the head at towton that we saw extensive, in the graves which is not surprising from yugoslavia. notice the shattering the legs. some things come through very quick lee. shrapnel wounds. but, when you put things back together again you can actually find entrance wounds, exit wounds, trajectories that will help you identify at least what direction that force was coming in through. the heads of unlike towton were

shattered. ..

at the time they were using probes with ball bearings to find the graves. they were very good tat. the sensitivity of the soil, the smell of soil, and they would find them. creates damage on the bone. again, in these contexts being able to distinguish between antimortem, jeers that tell us who the person was. perry mortem, what happened at the time of death and post mortem and distinguishing between those and what may have been associated with executions or relotion of the grave. it's where forensic

anthropologists have been most helpful. thank you. [applause] >> i know it wasn't the most uplifting and optimistic presentation. i'm sure there's a couple of questions. thank you for the presentation. i've had the opportunity talk to a number of physicians that treated the victims of the shooting in aurora, -- >> yeah. >> last year. they were traumatized themselves by being exposed to what many of them had not seen before, which were the wounds caused by these high powered rifles. the assault weapons. i wonder if you could describe what you observed between what happens to bone or bodies with an assault weapon strike as

opposed to a more conventional -- >> yeah. that's a very good question, and again, we're used to seeing this. when you get these volunteer forces to see -- even when you're used to seeing it, it's horrific. but the bone becomes just like china. the faster something goes through it, the more shat you're going have. and so i can only imagine what they saw in aurora. what you have a lot of times indies ting wishble parts. it's really explosive. like you would see with high powered shrapnel. ideally the soft tissue contains bones a little bit. you get in the mass graves in using involve ya, you had execution with high powered rifles. and you have something that looked very much like a human

body. but not really a head. and you would have is a little pile of bits and bones. because much of the head hasn't made the way in. i don't know if it answers your question. these are very difficult questions. it recovery and excavation is key, mapping every little tiny piece that you can, and then reconstruction. you can put the parts back together again but it means recovery. that's the key. >> yeah. i worked extensively on the montana indian graves protection act and i wonder if you can discuss what mane -- means you have at your disposal to investigate the sites acceptable to american native not in the remains themselves. >> thank you. that's a lovely question. and i would have liked to given

a whole talk on these issues. it was a very contention, 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 of these swept off and hidden behind closed doors and who knew what went on. what we found is more interaction with the elders, with triable groups, actually bringing them in to see what we're doing. i've actually worked in cases where they have burned sage or

in-- sin -- insists those of us occurring before and after. being an anthropologist, totally cool with that. it's great. and communication. and coming from working in human rights cases, as opposed to domestic case, we try 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 with e are often interacting very closely with families and relatives. and i think those of us that have done that are more comfortable working with indigenous populations 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 and conversation and educating

each other. >> thank you, everyone. [applause] >> the fascinating talk although i'm glad we didn't schedule shannon for just before lunch. we've genetics, anthropology, we are moving to a deeper mystery. u.s. supreme court. professor david from penn state is the country's leading expert on forensic dna in the courts. and he's going tell us what he thinks, at least, the supreme court has been doing with forensic dna. david. [applause] >> so i want to thank both judge and professor agreely for allowing me to talk about something that i've been -- still writing about and trying to figure out. and i keep changing my opinion so you don't have to believe everything i say.

first, i need to find my slide. here we are. i'm going talk this morning about two cases only. although i'll refer to others. were on the doblght and decided by the u.s. supreme court most recently in june for maryland v. king, and an earlier june for william against illinois. king is a case which arose when

alonzo king was arrested for waiving a shotgun at a number of people. police at booking took his fingerprints, 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 that doctor talked about. matched that taken in a rape case, and about four years earlier where king was charged and convicted of holding a gun to a head of a 53-year-old woman while he raped her.

he appealed. the maryland court of appeals held that the state's long authorizing suspicionless warrantless dna sampling of arrestees was, at least, as applied in almost all cases unconstitutional under the fourth amendment. he even before the supreme court could meet to discuss granting it chief justice roberts issued a stay of the maryland judgment. and he wrote there was a fair likelihood that the court would reverse. i went to the oral argument of the case. >> the argument in this morning in case 11 and 12207 maryland v. king. >> mr. chief justice, play it please, the court. since 2009 when maryland began to collect dna samples with

arrestees charged with violent crimes and burglary, there have been 225 matches. 75 prosecutions, and 42 convictions including that of king. >> that's really good. i bet if you conduct a lot of unreasonable searches and seizures you get more convictions true. that proves absolutely nothing. [laughter] >> immediately i knew this was not going to be a unanimous court. [laughter] the court split by the narrowest of margin meeting the chief justices' prediction. justice kennedy wrote the majority opinion, and when he announced it in court, justice scalia took the unusual step of reading from the dissent. for 11 minutes, he excoriated

his -- and suggested that the opinion of the majority strained the cra jewelty of the cred you lose. it reflected a lack of the english language and paved the way for a agree nettic pan opt con in which governments could peer in to in to the dna of nearly all of us. what did the court actually hold? it reasoned the that the swaps of the cheek was indeed a search not issued in the case. that the constitutionality of this kind of a search turn os the balance of state and individual interests, and that balance favors the state under at least the facts in this case. but what is remarkable about the majority of opinion and that lead to some of the criticism that i mentioned is that it

focused almost exclusively on the interests of the state in pretrial, as it called, processing of detainees. of seeing whether someone might be guilty of another crime not to convict them of that 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 the fourth amendment is a per se

rule with categorical 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. s 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 do uphold if the court wanted to uptholed, the maryland law. and i'm going to 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 been recognized so far is the so-called special needs exception which is the source of

immense confusion. the basic idea is 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 interests. the problem with applying that here are two cases ed monday and ferguson, i won't go in to. if the primary preference of the program was really law enforcement, you couldn't use the special means exception. now i believe there are ways around that where by the special needs approach 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. 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 exception for what i would call biometric data. purely physical information. not looking in to what someone is thinking. but only the kind of physical traits that, for example, a physical anthropologist might be interested in. and that would apply then to fingerprinting and arguably dna, again, something addressed in the reprint. the court didn't do that. in fact, none of the parties argued that. alternatively the court could have balanced outside of the per se frame work. what might have done? it might have abolished the per se rule entirely, which is what, for example, yale professor ting try to confine the approach to

direct balancing to a somewhat narrow class of cases but it was not very articulate about what the class of cases are. as for the balancing itself, as i mentioned, the court emphasized the state's interest in pretrial processing. and phs for the individual interest on the other side of the balance. they said to be minor. i want to spend a moment on the scientific safe guards that the court was referring to. the idea that this is, well, law enforcement since the first days of dna testing that dr. jour i did referred to has been assuring us that used to make investigative determinations matches, nonmatches, are

noncoating, nonthreatening, nonrelevant to anything else. well, not everybody believes them. not every judge believes them. here is a short segment of the oral argument in a ninth circuit case that is still dragging on after king against harris harris. this was the argument before the king decision was announced. >> much more severe intrusion the fingerprint. >> absolutely. and the able gal of the history almost of your ancestors and weaknesses and now we know that the so-called junk dna is very important. >> that's absolutely right. >> that reading in the "new york times." but, you know, -- >> we love "the new york times." that's not part of the record. [laughter] >> you can take judicial notice

of it. [laughter] >> only if you're a subscriber. [laughter] >> i read many, many newspapers. [laughter] >> what the judge was referring to were headlines in "the new york times" reporting that a recent research not even recent but a con shore sum of research, essentially the successor had found that 80% of the genome was, quote, functional. and the headlines appeared jump dna dethroned. there was immediate crit criticism of the times and other papers as for the scientists for their reporting. >> hey, everyone. welcome to a special edition. i'm sitting here today with my coed or it on the blog and we have a special guest here. a professor of medicine at johns hopkins university. >> the big headline they came up with is at best misleading.

i think that all of the scientists knows this is misleading. am troubled by that. and maybe they felt like they could get the paper of the nature. but you should never do that. you don't destroy the science just to get to the headline. >> he said you don't distort the science to get to the headlines. if you want to follow more of that issue, i recommend an amicus brief that and i recommend it because i was involved in it with professor greely which we recruited a number of distinguished scientists. we could have used more and attempted to simply explain what the relevant issues on, quote,

jump dna were. we suggested it wasn't the right inquery. not a good scientific term that should drop of the debate. but the court used it in the opinion, nonetheless. anyway it's an interesting brief, and easily obtained. so the idea of the scientific safe guards then was that the being used not terribly revealing but more than identity. that was sort of the basic end of the brief as well. statutorily i'm going skip over more of the argument. you hear the judge argue that he doesn't really care that there's a statute that make illegal a more invasive what is left after king? well, one issue is does the

balancing work the same in cases that are, quote, not serious offenses? at least four times in the kings opinion you see the phrase serious defense. never defined. is it descriptive? if it's really vital to the balancing, then the federal law is unconstitutional because it requires dna to be taken regardless of the seriousness of the offense long there's a detention. you go to a campsite and don't obey the regulation. 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 per permissible, reasonable kind of search. is it not uniform if the police arrest someone because they want to get the dna sample? even if they have probable cause. what if the state wants to go after smaller matter and build up the data base.

can it do so by changing the way the dna is collected? you heard this morning, in theory sometimes in practice, dna can be found even in ordinary fingerprints from a few cells. we can do more by just having a sticky pad, which would get a lot of cells instead of swabbing the cheek, which was the point of concern for justice scalia as he wrote the opinion saying that the proud founders of our constitution, the fathers of our country would not have welcomed a royal cheek swab. well, what about a little finger print? what if they used other than the current ones?

in fact is strongly favor in denver by the district attorney there. is that a different balance of interest. what the if the profiling is done before any charge is made before an arraignment unlike king. what if the states want to recane the dna even if someone is not convicted? currently not the law in the u.s., but that is how britain built up its data base to the point where one official described it as covering every criminally active person in the british population. so there's a lot of work left for lower courts following king. and good luck to you. the second case jumping now to a totally different provision in the constitution, williams v. illinois.

>> justice alito has the opinion of the court in two cases this morning. the first case is williams v. illinois number 10-8505. this case involves dna ease and the confrontation clause of the sixth amendment. the petitioner in was convicted in state court in illinois about state also attempted to show that williams' dna matched the forensic sample obtained from the victim at the hospital after the rape. will i means objected to the typically by the dna expert who testified for the state. after petitioner in was convicted he filed an appeal claiming that the dna.

the state court of appeal rejected the argument and the supreme court of illinois affirmed. we granted it and now affirm. i have filed an opinion in which the chief justice justice kennedy and justice breyer joined. justice briar filed a concurring opinion just concurring in the judgment justice kagen has filed a sis sending opinion in which justice scalia, ginsburg, and sotomayor have joined. and just allee to refuses to explain the basis with the court's opinion. i'm supposed to that in what seven minutes? well, six. why doesn't he give the court holding. there is no holding.

the majority of the the court rejects every theory offer forked the result of affirming. the confrontation clause itself talk about the right to be confronted with the withins against an individual and the court has struggled the application of that concept as defined in crawford case in 2004 scalia opinion saying everything turn on whether or not the out of court statement is testimonial. all of which appeared at the end of the term the last possible day reflecting the court's struggles. we know from the first case that a laboratory cannot simply produce a notarized form that says cocaine.

and that can be introduced in evidence in a criminal case for the prosecution. but even that without the witness -- 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 it's -- they're different than ordinary witnesses. what i'll call science exceptionalism. the second case of the trilogy justice ginsburg wrote an opinion in a case in which the stay of new mexico used as a witness for a dui blood alcohol measurement someone from the same laboratory -- from another laboratory who had not been involved in the testing at all -- the person who did on the testing was administrative leave for unspecified reasons.

and only one justice joined in the entirety of justice ginsburg opinion for the court and that was justice scalia. justice sotomayor wrote a concurrence that stressed the limit of the opinion. one limit being that the report, as to which there was no live witness for, was never -- was introduced in to evidence. the obvious question then becomes what if it's not introduced in to evidence? and that is the williams case. in williams, a state lab shipped having having vaginal swabs off to a lab in maryland. it deduced a rate of profiled. it's not always a trivial matter, by the way, and requires judgment. mixed samples are issuing -- especially low quantity of dna.

anyway, they deduced the profile, wrote a report, and accident back. an analyst from illinois punched in the profile to the computer, which searched the illinois data base, got a hit to mr. williams, and she also used another software program called pop stats too come up with a probability even lower than the ones we heard this morning. one in for an un-related person sharing picked at random having the same types. ..

>> it is not a confrontation issue because the laboratory was not accused. but five justices said where did that come from? it just says a but this is

the sixth amendment another theory that gets very complex you have to be a lover of here say it basically the alito group said it is just the expert testimony about the marriage bet justice taken calls that fiction and on since factually impossible taken from the treatise and i will and to because of the schedule but i just mentioning upon reading justice alito opinion he had interesting point. there are cases that rule 703 might work to get around the confrontation clause but not the williams case. the theories offered for that purpose are not fully satisfactory.

so after williams there is no majority opinion very hard for the lower-court stewed know what to do the fundamental issue is really whether the courts try 82 to say that is the law or to say that is the theory to apply and that is the lower-court it were the different. the future? i will end whimsically. >> gentlemen these documents all speak of the rights to accused by his peers the rights of cross-examination the most important they the right to be confronted by the witnesses against him to which my client has been denied a. >> that is ridiculous reproduced the witness in court he could see and

cross-examine. >> all but one of the most devastating witness against my client is not a cuban being butted information a computer log i asked the court to reconvene the pond the vessel. [laughter] >> i am done. [applause] >> we have one or two questions now to go back to a sharp instrument or a blunt instrument? [laughter] questions other than rhetorical? this group knows you have a

break which is probably why there are no questions. if you were on break then back here at 1030am and we will start back here and 30 minutes. we will see you back here then. [inaudible conversations] [inaudible conversations] >> it is time to get started with part to. please take your seats. or take your neighbors seat.

[inaudible conversations] >> i declare the presence of a quorum. average next speaker will move from the supreme court we hope to think there is a correlation but talking doll behavioral genetics and what science can tell us about human behavior in ways that may be relevant. professor of law at duke and also professor in the philosophy department. [applause] >> it is a pleasure and an honor to be here with you today to talk with you about

how behavioral science impacts the legal system. this morning you heard about the extraordinary rules of dna analysis of bones play to identify individuals and to identify criminals. i will shift the focus say a little bit to talk about what to go back and behavioral sciences and tell us about why a person has committed a crime. and whether or not it improved understanding of why people commit crimes or the contributions to human behavior should impact how we think about responsibility for criminal conduct and the of punishment for criminal conduct. , of all the risk factors that are most notable for the development anti-social

personality disorder to have a legitimate basis what is the most predictive to gnomic feature is? any guesses? alito y chromosome. being a male. i about little biased but i think men are had a significant one dash significant biological and tear ditch this could be part of the explanation what you look at is a gene which happens to appear on the x chromosome and it turns out it is essentials in a lot of them were behavior it produces a chemical vetted as essential for the regulation of a lot of her own transmitters in your brain including serotonin or dopamine that are essential

to our happiness and disposition ability to control impulses. it turns out men are not on the at a significant biological disadvantage by the fact they are men but maoa is more likely to appear and the coproducing form. there is dave barry -- variation of maoa that regulates how much maoa is produced in the body and the men have a lower amount that may help to explain some of the differences of the increase that we see it is not proven it is a theory but if has interesting support. some researchers published a remarkable study in 2002 and it showed the first of its

client gina environment extraction. you have heard it is not just in nature but also nurture but the combination of interaction between the two has never been shown before this study which conclusively showed there is in fact, an interaction. what you've looked at here is to different ones. here you see the gray is high maoa production the black is low maoa production what we the gatt is antisocial personalities. there is not a huge amount of difference of low and high activity but there is some difference but not much. said uc there is a big difference over here. what is that? if you take or looked at a core horton individuals over

a 20 your time period looking at the social history to determine if they have been subject to sexual abuse or physical abuse in childhood and the parents are absent of the of low form or high form then what they found was if you have the low activity in severe childhood mistreatment there was a significant four times greater possibility you could be the antisocial all individual. how? they look at committing violent offenses or offenses overtime. that is interesting. you can see there is a genetic contribution to the personality type and even if you don't have the childhood

maltreatment what this study looks that been a gang members on the left is how i maoa the activity of the right lobe maoa activity and look get though white bar there is a big difference between the bar on the left-hand glove right. what is the difference? the likelihood of using a weapon. a male cohort of king members with low maoa were significantly more likely to use a weapon than those who have high, the normal zeno type -- or genotypes of maoa. significantly more likely if you also have a childhood maltreatment but the mere presence matters. why does this matter to us? for how we think about

individuals thises an example is but one of the growing field of behavioral genetics and neuroscience which looks to understand the genetic and neurological and biological contributions to behavior. a and it turns out in any criminal trials across the country and with pretrial negotiations criminal defendants come in to say don't blame me. blame my brain. my brain made me do it. in some ways of course, your brave baby you do it but what does that mean? what does that mean something different about your brain delivered it aforethought processing of the formation?

shouldn't matter to our criminal-justice system? of the past 10 years looking at the increase of criminal defendants coming into the criminal court room to introduce evidence about their biological or girl logical predisposition behavior. this is all about reid disposition there is a correlation between genetic difference and a neurological differences and the difference in the amount of time. what this shows is the exponential increase but 2005 for 2006 or 2007 what is this? simply reading judicial opinions that many of you have written that stops a criminal defendant coming into a court room to use evidence of behavioral genetics or neuroscience

with a decrease of the responsibility or punishment of a crime that is a tiny subsets. the 10 percent of those ever make it to trial will be but% make it to appeal of those that discuss the genetic case is are even smaller. the mower i talked to defense attorneys they say in the pretrial phase of plea-bargain increasingly this is used to try to plea for a lesser offense or punishment so having been increased role for the first most prevalent is in case is of homicide.

a criminal defendant tries to prevent as mitigating evidence because of the neurological produces position with less control and less culpable but what is surprising from a felony murder to a child abuse to rape for drug cases criminal defendants come into the courtroom to introduce evidence there braid will help to explain how they behaved as they did. to mustachios the majority are now becoming neurological. but these are intricately related it is just genetic

evidence and what this is is what kinds of claims are they making? the biggest buyer is mitigation is started as a punishment theory but going into cases that shows up of the tide now. challenges the mental state with interesting claims whether or not they had the ability to form of mental state necessary to commit the crime. is across the gamut not just punishment theory anymore but so i just parted my criminal law class the first day when i always do is have a conversation with students why should we punish

criminals? why do we hold people accountable? an eye for an eye? isn't a deterrent based theory? the utility of society to safeguard individuals or to try to rehabilitate into society? ever answer comes under increasing scrutiny with the new use of behavioral the short neuroscience the answer why we punish should show the evidence it should play in the criminal-justice system. in the death penalty case he said the reason i acted the way i did because of the serotonin deficiencies the reason i committed the homicide and his headed said

attributable to my genetic disposition but he said after my arrest i started prescription and medication and after starting that my behavior changed. so much that the death penalty was not warranted because my aggressive behavior was genetic beyond my control and now treated and i am not the worst of the worst kind of the criminal offenders. if a person has less control or treatable is there a current value to execute them or keep them in prison for a longer period of time it is our showing up repeatedly one of the

arguments was ineffective assistance of counsel from the supreme court it seems that failing to investigate genetic gander logical basis for a person's behavior does account for ineffective counsel if there is a failure to do so either there is no investigation for a behavior that constitutes its effectiveness as counsel. not true is cumulative that some evidence presented at trial as a capital case to show this person had some mental health component but a complete failure seems to be problematic if a criminal defendant says i cannot control the behavior i cannot stop myself from

killing people or committing crimes is that a sympathetic claim? will jerry say they knew should go back to a vasari. that is wrong? probably not. this is presented well before we have an answer to the genetic basis of violence in bin society in a case that geoffrey refused to cooperate with mitigating evidence on his behalf during that capital sentencing phase of his trial. then later he said i had ineffective assistance of counsel because they did not provide mitigating evidence on my behalf. nevertheless it goes on to the ninth circuit and the reason it gets there is he said would have cooperated if i understood a particular theory of a genetic basis

for my violence because i am fine with my father was violent my grandfather was violent, his father was violent so there is the inheritable issues of the ninth circuit said it is pretty unlikely if said jury heard evidence he was remorseless and playa lenticular genetically programmed and shown by the fact he comes from a a long line of violent killers it would be that compelling. the ninth circuit reversed it went to the supreme court they certified a particularly interesting issue is a genetic predisposition mitigating? we'll stop is it mitigating? is an aggravating? oh what is it? how to rethink about back? the court did not have to resolve the question in this

case because they resolved on the other issue can you voluntarily breeze -- waived your all rights on your own behalf? yes. so geoffrey loses but then we say we're not sure that would be helpful in the way and it turns out states have picked up on this and with violent predator cases one of the questions is there a genetic or neurological or biological basis that makes it likely they will feel fend as a basis to indefinitely committeeperson? and that what they're defending am presenting at trial is showing up as a basis to keep them in prison in moderate -- locker it is not mitigating but the theory seems to be based on the idea that our genetics

and neurological predisposition robs us of cover freewill. five and ask you right now to raise your right hand most of you could do so. wider use that example? you have the capability of deciding to bring cajun simple actions. so because i can describe genetically and neurologically your behavior and those contributions you don't have the ability to make choices about that behavior? that seems to be the theory that criminal defendants are introducing into the criminal court room. they say that it is not voluntary i also show my students how thin the concept is of criminal law be did not even define it we

can just tell you what we think is involuntary that is reflexes, sleepwalk, are we just sleepwalking through life because we can explain that genetic neurological and our behavior? they are acting out of reflex. this is an interesting area because there is strong evidence there is a ticket genetic predisposition to becoming addicted that once you hit the roof -- have the first hit you are more likely to become more addictive than the next person so it is harder to reflect after words sandy will not know that it to you hear about 23 and made to find out there predispositions of course, you could see if

other people had been likely to do so. likewise incompetency cases this is the same in voluntary with more neurological evidence and genetic which is to say i could not voluntarily waive my right when i put my guilty plea it was involuntary my brain made me do it or i could not think otherwise or the fact my frontal lobe is not developed a means how do we think about it? that is a question then it shows up in the criminal court room. they say i was addicted but

it was a genetic basis to do so and the court says the defendant never had a choice and was unable to exercise free choice regarding drug use. we are not there with genetics yet for neuroscience. we cannot explain the 100 percent your behavior but how much capacity with the requisite state in order to be convicted of the crime? incompetency cases this shows up the law in interesting area that seems to be getting traction in court. and not to have the legal basis to do so but i hit my head right before i came in

so it shows a cannot voluntarily waived by right. some of the problems so to have this a person enters into a perfectly normal colloquy with the police asking question the way we understand competency but then to have some abnormality. so there is a difference between our perception in of behavior and it does not matter to us. should we care? it shows up in many cases of an intention now the day. impulsivity, a capacity, a diminished capacity said this is about mental state.

it is a hard sell. this is about mental state as a narrow concept if we are interested to understand the moment you pull the trigger did you pre-meditate or intent to pull the trigger was set fully knowledgeable understanding competent or rational action? was insufficient to say it was necessary? criminal defense says says no this is the one that seems to gain the most attention. there is good evidence in juvenile that they are more impulsive part of that explanation is the frontal lobe is not fully developed in the frontal lobe region is essential for executive functioning for planning or

premeditation and it shows those deficiencies to not have to be deficiencies in the frontal ball but the massive neurotransmitters firing and appearing in a your brain that has the genetic basis. doesn't matter? the evidence tell us about the moment at which a person decided to pull the trigger? . .

and capacity to control the impulses was virtually nonexistent. the genetic evidence was used to challenge it saying the person didn't have the necessary mental state. to provide a novel serious -- that the person's own self provoked him rather than some external person, totally novel theory; right? and try to mitigate. didn't work in this case, and hasn't worked in a lot of cases because the objective circumstances are different than the neurological evidence. evidence of planning as we ordinarily understand it by a guy, taking it to a place, pulling a trigger saying die all right. those objective things lint face a lot of neurological ens. this just tells you -- the red bar is bad for the criminal defenses. the ble