Chapter 5: The ‘criminal gene’ argument in the courts
The previous chapter discussed several genes which have been associated with antisocial behavior. It considered the basic function of these genes, in order to explain the origin of this link, and then discussed scientific understanding of the role of these genes and their interaction with specific environmental conditions in human behavior. This chapter will consider the current use of a genetics arguments in court. It will begin by discussing the admissibility of behavioral genetic evidence, and will then consider its use during both the trial and the sentencing phase of court proceedings. In order for evidence to be considered by a judge or jury in criminal proceedings it must first be admissible. The starting point for admissibility is generally that evidence is admissible if it is relevant. ‘Relevant evidence’ can be defined as ‘evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’. An alternate definition is evidence which has ‘any tendency to make a fact more or less probable than it would be without the evidence [where] the fact is of consequence in determining the application’. One additional requirement is that the evidence must be based on conditions that existed at the time the cause of action arose. There is often a provision in evidence laws which allows for the exclusion of otherwise relevant evidence if its use would be unfair.
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