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7 DNA Typing and Society The introduction of any new technology is likely to raise concerns about its impact on society. Financial costs, potential harm to the interests of individuals, and threats to liberty or privacy are only a few of the worries typically voiced when a new technology is on the horizon. DNA typing technology has the potential for uncovering and revealing a great deal of information that most people consider to be intensely private. The federally established human genome program will yield an unprecedented amount of genetic information and generate new databanks.1,2 Even apart from the human genome program, DNA technology is moving forward; but this large-scale program, projected to take 10-15 years, is bound to accelerate the acquisition of genetic information. At the same time, it contains a mandate for examining the ethical, social, and legal implications of mapping the human genome, with specific allocation of funds for examining these aspects.2 A central concern raised by these developments is the safeguarding of the confidentiality of personal genetic information. With greater understanding of the human genome, the potential of misuse of DNA samples collected or preserved for purposes of criminal justice will increase. The more databanks are established, the greater the risk of breaches of confidentiality and misuse of the information.3 The social, economic, and ethical concerns in this chapter overlap with the legal aspects addressed in Chapter 6 and the issues in development and use of databanks discussed in Chapter 5.
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ECONOMIC ASPECTS The forensic use of DNA technology will have various economic impacts. The proliferation of DNA evidence in investigations and trials requires a fairly rapid expansion in the number of reliable experts and laboratories. The cost of the equipment, training and proficiency programs, supplies, and personnel will be very large. For example, the three proposed regional laboratories in New York state are estimated to cost $1.4 million per year.4 The Commonwealth of Virginia has committed several million dollars over the last 3 years to its forensic DNA activities (Paul Ferrara, personal communication, 1990). Material will have to be stored for databanks and for checking suspects. Costs will be associated with the upgrading and changing of databanks when new procedures are adopted. Those costs will affect budgets for police, prosecutors, and courts. Indigent criminal defendants might have a constitutional due-process right to have an expert witness paid for by the government. The courts themselves must be supplied with reliable assistance in evaluating DNA material. In the federal system, the court can request an expert or panel of experts to assist it, pursuant to Rule 706 of the Federal Rules of Evidence. A special register of scientific experts can be maintained for ready access. The government will generally have to bear this cost. However, if a defendant can afford the cost and asks for expert assistance, the court can assess some costs against the defendant and some against the state. New costs will also be related to training and certification. The implementation of any new technology requires training and certifying of personnel. Additional costs will be incurred to develop mechanisms to ensure quality control of laboratories that conduct forensic DNA testing. New technology can grow and make ever larger fiscal demands on society. It is difficult to predict the total cost of DNA testing when it becomes generally available nationwide, but it is reasonable to expect it to amount to tens of millions of dollars a year. That cost is unavoidable, but, given the present fiscal problems at all levels of government, cannot be ignored. Setting up regional and cooperative services is one way of controlling costs. It might not be feasible or appropriate for some small forensic science laboratories to create their own DNA testing capabilities. A major DNA testing center run by the FBI might reduce costs to smaller localities. That potential reduction in monetary cost needs to be balanced against the risks to privacy and confidentiality of having a powerful federal law-enforcement agency in charge of DNA testing and storage of DNA information. If laboratories come to share information, everything could eventually become linked. At the same time, the risks that privacy and confidentiality will be breached might be as great or greater with local
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control, in that state laws governing the use of criminal records vary widely. It is likely that the cost of criminal justice will be increased. In some cases, however, early exclusion of suspects who have been cleared by forensic DNA evidence will reduce cost in the judicial system. On balance, the increased costs are small relative to the cost of operating the entire system. The committee believes that the expenditures are warranted by the advantages to be expected. ETHICAL ASPECTS Ethical considerations regarding the use of DNA technology in forensic science overlap with various issues addressed in social and legal analyses,5 including substantive and procedural rights of people and overall nonmonetary costs and benefits likely to result from establishing the use of the new technology in courtroom proceedings. A threshold question for any ethical inquiry is whether the action or practice under discussion is intrinsically wrong. An action or practice is intrinsically wrong if it violates fundamental ethical principles. These have traditionally been held to include prohibitions against enslavement, torture, gratuitous infliction of harm on human beings, and modes of exploitation that use humans as merely a means (usually without their knowledge or consent) to serve the ends of others.6 To hold that such actions or practices are intrinsically wrong is not to claim that they can never be justified. For example, if torturing a terrorist who knows the location of a bomb planted to kill a million people is the only way to avert the tragedy, then torture might be justified. That would not yield the conclusion that torture is ethically right, but rather would show that evil acts can sometimes—albeit rarely—be justified as a means of preventing much greater harm.6 DNA technology in forensic science is unlikely to violate any fundamental ethical principle of the type described above. Although DNA technology involves new scientific techniques for identifying or excluding people, the techniques are extensions and analogues of techniques long used in forensic science, such as serological and fingerprint examinations, handwriting analyses, photography, and examination of teeth. Ethical questions can be raised about other aspects of this new technology, but it cannot be seen as violating a fundamental ethical principle. A new practice or technology can be subjected to further ethical analysis by using two leading ethical perspectives. The first examines the action or practice in terms of the rights of people who are affected; the second explores the potential positive and negative consequences (nonmonetary costs and benefits) of the action or practice, in an attempt to determine whether the potential good consequences outweigh the bad.6
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Moral Rights Two main questions can be asked about rights: Does the use of DNA technology give rise to any new rights not already recognized? Does the use of DNA technology enhance, endanger, or diminish the rights of anyone who becomes involved in legal proceedings? In answer to the first question, it is hard to think of any new moral rights not already recognized that come into play with the introduction of DNA technology into forensic science. The answer to the second question requires a specification of the classes of people whose rights might be affected and what those rights might be. The people whose rights might be endangered or diminished seem to be chiefly those who are suspected or accused of or indicted for a crime or involved in other legal proceedings, such as paternity suits, denaturalization, or immigration matters. Does use of DNA technology interfere with or diminish their rights in any way? Might it enhance their rights? Which rights might be endangered? The current use of DNA technology appears to pose no greater threat to the right to privacy than does normal fingerprinting, placement of photographs in evidence, collection of blood or saliva samples, or other established forensic techniques. DNA technology is not different in principle from those other techniques, although it holds the promise of providing a more definitive identification than most others (fingerprinting is likely to remain the best for a while). If the use of DNA information can be strictly limited to defendant identification, it involves no greater intrusion into the privacy of an accused person than do traditional methods in forensic science, whose aim is to make as definitive an identification as possible. Without strict limits, however, DNA information can be more intrusive into privacy, in that it provides more information about a person. In some ways, the use of DNA information about suspects can be less intrusive than traditional methods. ''Rounding up the usual suspects" by checking a DNA sample against a computerized databank is both much easier and less intrusive than rounding up the suspects themselves. But people who are rounded up are made aware that they are under suspicion and can take protective steps. Where databanks already exist, a fresh blood sample would have to be taken from suspects for confirmation. Thus, it is a complex matter to determine whether the rights of suspects are enhanced or endangered by the use of DNA evidence in the forensic setting, which requires empirical evidence to be subjected to careful analysis. Concerns about intrusions into privacy and breaches of confidentiality regarding the use of DNA technology in such enterprises as gene mapping are frequently voiced, and they are legitimate ethical worries.1,6,7,8 The concerns are pertinent to the role of DNA technology in forensic science, as
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well as to its widespread use for other purposes and in other social contexts. A potential problem related to the confidentiality of any information obtained is the safeguarding of the information and the prevention of its unauthorized release or dissemination;5,7 that can also be classified under the heading of abuse and misuse (discussed below), as well as seen as a violation of individual rights in the forensic context. People have a right not to be wrongly convicted of a crime. To protect that right, a high standard of proof is imposed before a person may be found guilty. In addition, techniques used in gathering and analyzing evidence must have proven reliability (comprising accuracy, precision, specificity, and sensitivity) and should be accepted by a consensus of the scientific community. If DNA technology is as good as or better than other methods used to identify criminals and if the implications and limitations of DNA evidence are recognized by judges and jurors, its use should pose no greater danger to the rights of accused people than the use of currently approved techniques of forensic identification. Moreover, the reliability of DNA evidence will permit it to exonerate some people who would have been wrongfully accused or convicted without it. Therefore, DNA identification is not only a way of securing convictions; it is also a way of excluding suspects who might otherwise be falsely charged with and convicted of serious crimes. Nonmonetary Costs and Benefits The ethical perspective by which actions or practices are evaluated in terms of their good and bad consequences is fundamentally sound. Nevertheless, it suffers from both theoretical and practical difficulties.3 Not only is it difficult to predict good and bad results in advance of gathering sufficient evidence about projected consequences, but it is also sometimes hard to weigh consequences, even if they have already come about. For example, how is it possible to weigh the good consequences of enabling positive identifications to be made with greater certainty by using DNA technology against the bad consequences of drawing mistaken conclusions in particular cases where laboratory techniques or personnel are substandard? Even well-done tests can yield false positives. In approximately 35% of cases performed by the FBI to date, the primary suspect was excluded by DNA (tests on persons who had been prescreened). However, that observation does not resolve the problem of weighing good consequences against bad ones, although it does provide some information that could be used in such weighing. Another factor to be weighed in a consequentialist ethical analysis is whose interests are to count and whether some people's interests should be given greater weight than others'. For example, there are the interests of the
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accused, the interests of victims of crime or their families in apprehending and convicting perpetrators, and the interests of society. Whether the interests of society in seeing that justice is done should count as much as the interests of the accused or the victim is open to question. (Here there is an obvious overlap with an ethical analysis from the perspective of rights, and assessment of the consequences of instituting a new practice should include the effects of the new practice on the rights of the people involved.) Especially when a practice is new and information on projected consequences is scanty, there are problems with relying on balancing the good and bad consequences as a mode of ethical analysis.9 People who favor one policy or practice predict a balance of good consequences over bad ones, and detractors do the opposite. One important factor contributing to uncertainty about the use of DNA typing technology is the existence of disagreement among scientific experts.10 When experts disagree about the use of techniques or statistical methods (such as extrapolations based on population genetics) or about the interpretation of data, the uncertainty is of a different sort from uncertainty that stems simply from scanty evidence drawn from actual consequences. The latter uncertainty can be remedied by gathering more data before a technology is introduced as an accepted standard. If controversy among experts persists, disagreements can erupt whenever empirical evidence is analyzed and specific conclusions are to be drawn. An overall judgment that DNA technology in forensic science is superior to existing forensic methods requires comparing intersubjectively verified scientific evidence on the reliability and validity of the new method with evidence on the other methods. Certainly, as a personal identification method, fingerprinting is the definitive forensic technique and has many advantages. It has almost 100 years of development, which has established empirically that a person has unique fingerprints; fingerprints can even distinguish between identical twins. Fingerprints are easily detected and developed, and large electronic fingerprint databanks exist all over the world. A fingerprint is a directly observable impression that does not generally involve extensive chemical or biochemical manipulation. Rarely do fingerprint experts differ in conclusions reached after examination of fingerprint evidence. The limitations of the technique are derived from the fact that usable fingerprint evidence is left at crime scenes relatively rarely and can indicate only the presence of a person at a scene. Another method of identification commonly used in forensic laboratories is forensic serology, i.e., analysis of physiological fluids for genetic markers, such as ABO antigens, enzymes, and serum proteins. The major drawback of these analyses is the degree of specificity provided. The usual battery of serological tests might still allow characterization of a person only as a member of a larger population sharing the same markers. Depending on the panel of tests, the likelihood that a randomly selected person
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will show the same markers as a person in question can range from 1 in 2 (such as in type O) to 1 in several thousand (such as when many systems are typed and a relatively rare type is found). The literature and case law on paternity disputes suggest that a likelihood of 1 in 20 is reasonably corroborative and that a likelihood of only 1 in 100 can strongly influence the triers of fact. Thus, although conventional serology can exclude a person, it can also include many members of a population group as the possible origin of a blood, saliva, or seminal fluid stain. Conventional serology is further limited, in that analysis of mixed-fluid stains in which two or more contributors are involved can mask an individual donor. Similarly, only 75-80% of the population are secretors (exhibit their ABO blood type in their other physiological fluids). Thus, the combination of those factors severely limits the power of conventional forensic serological examinations as an individual identifier. Results of serological analysis also are more subjective and can give rise to differing conclusions when interpreted by equally qualified scientists. Hair evidence is often encountered in sexual assault and other violent crimes. It is valuable as exculpatory evidence and can be informative as to identity, but it lacks specificity. Although hair examiners can associate a hair with racial characteristics and body source (trunk, head, or pubic area) the variations among hairs on a given person make definitive association of a single hair with an individual problematic. The microscopic comparison of hairs is also subjective and can lead to differences of opinion among equally qualified experts. With the advent of DNA technology, especially PCR amplification techniques, the use of hair as an individual identifier will become more common. Some other forms of individual identification are available to forensic scientists, but have very limited application. For example, examination of teeth is useful in identifying deceased persons or bite marks. Providing scientific evidence that DNA technology is at least as reliable as other forensic methods and is therefore more likely to result in definitive identification or exclusion of persons suspected or accused of a crime satisfies both the ethical concerns about individual rights and the conditions of an ethical analysis based on weighing good and bad consequences. However, additional assurances are required for the risk-benefit ratio to be favorable in each case in which the technology is used. Therefore, a critical step in accepting the use of DNA technology in criminal trials is establishing safeguards and seeking to prevent abuses. ABUSE AND MISUSE OF DNA INFORMATION Even if a technology is scientifically sound and its use is ethically permissible, it is necessary to seek to prevent abuses and misuses in prac-
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tice. Examples of abuses of DNA technology are unauthorized access to databanks and unauthorized disclosure of information. An example of misuse is the use of DNA information for purposes other than forensic—in other words, going beyond the intended purpose of collecting and storing the information. A major issue is the preservation of confidentiality of information obtained with DNA technology in the forensic context.5,7 When databanks are established in such a way that state and federal law-enforcement authorities can gain access to DNA profiles, not only of persons convicted of violent crimes but of others as well, there is a serious potential for abuse of confidential information.11 The victims of many crimes in urban areas are relatives or neighbors of the perpetrators, and these victims might themselves be former or future perpetrators. There is greater likelihood that DNA information on minority-group members, such as blacks and Hispanics, will be stored or accessed. However, it is important to note that use of the ceiling principle (Chapter 3) removes the necessity to categorize criminals (or defendants in general) by race for the purposes of DNA testing and storage of information in databanks. Maintaining DNA samples or information about ex-offenders and parolees might be permissible, but requires justification. Even in a felon databank, protections must be instituted. For example, a person's permission should be obtained for the use of his or her DNA information outside the forensic context. If there are no witnesses to a crime, law-enforcement agencies are likely to go directly to the felon databank in their quest for probable suspects. The tendency to use efficient and cost-effective means to solve crimes could result in reducing safeguards, thereby eroding rights of ex-offenders and parolees. Storage of DNA records of people who have not been convicted of a crime raises ethical questions about the proper "ownership" of such information.11 DNA information is personal and so should be treated as private, like information in a person's medical record.8 Outside the forensic context, DNA information should be stored in databanks and released only with the knowledge and explicit permission of the person who is the subject of the information. As for storage of forensic DNA information in databanks, some disagreements remain about propriety and about the prospects for abuse (Chapter 5). Even when the use of criminal databanks is limited to the local or regional level, the potential for expansion raises questions of misuse. For example, should a whole local population be subject to DNA typing when it is strongly suspected that someone in the population left blood or other fluids at the scene of the crime? Should this be seen as similar to a "frisk" or a simple search that requires a warrant or as an intrusion into someone's body that requires a strong showing of need? The potential for expanded
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uses of DNA technology that would constitute serious intrusions into the privacy of ordinary citizens requires the setting of guidelines that separate proper use from misuse of the technology. The release of DNA information on a criminal population for purposes other than law enforcement also constitutes misuse. Employers and insurance companies will certainly have an interest in DNA information on potential employees or customers.1,8,9 Biomedical and behavioral scientists are likely to want to screen felon databanks and develop new databanks to study various characteristics of convicted offenders. Legal sanctions should be established to deter the unauthorized dissemination or procurement of DNA information that has been obtained for forensic purposes. EXPECTATIONS The introduction of a powerful new technology is likely to set up unwarranted or unrealistic expectations. Various expectations regarding DNA typing technology are likely to be raised in the minds of jurors and others in the forensic setting10 (see Chapter 6). For example, public perception of the accuracy and efficacy of DNA typing might well put pressure on prosecutors to obtain DNA evidence whenever appropriate samples are available. As the use of the technology becomes widely publicized, juries will come to expect it, just as they now expect fingerprint evidence, surveillance photographs, and audio and visual eavesdropping. Moreover, prosecutors will not want to give defense attorneys the opportunity to ask on summation, "If my client was the perpetrator, where is the DNA evidence?" Once a prosecutor produces DNA evidence, the defense will be under great pressure to undermine it through the use of reports and experts, because of an assumption that the jury would interpret a failure to call a defense expert as an admission that the DNA evidence is persuasive. Mere cross examination by a defense attorney inexperienced in the science of DNA testing will not be sufficient. Two aspects of DNA typing technology contribute to the likelihood of its raising inappropriate expectations in the minds of jurors. The first is the jury's perception of an extraordinarily high probability of enabling a definitive identification of a criminal suspect; the second is the scientific complexity of the technology, which results in laypersons' inadequate understanding of its capabilities and failings. Taken together, those two aspects can lead to the jury's ignoring other evidence that it should be considering. Expectations regarding the power of DNA typing can lead to overlooking or ignoring sources of error or mistakes in applying the technology. For example, jurors' focusing on the probability of correctly identifying a per-
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petrator might lead them to discount the possibility of laboratory error, whether it stems from incompetence or carelessness of personnel, malfunctioning equipment, or unavoidable mistakes. The efficacy and accuracy of a new technology typically are initially demonstrated by the most highly competent and knowledgeable practitioners. As DNA typing becomes routine, the quality of laboratories and personnel using it might decrease while still meeting the standards required for accreditation or licensing. However, the expectations of judges and juries might remain high, because of the superior knowledge and competence of the initiators of the technology. Later gains in experience and improved typing could lead to an increase in quality. As large felon databanks are created, the forensic community could well place more reliance on DNA evidence, and a possible consequence is the underplaying of other forensic evidence. Unwarranted expectations about the power of DNA technology might result in the exclusion of relevant evidence. Both prosecutors and defense counsel are entitled to benefit from the power of DNA evidence, but they should not oversell it. DNA evidence is not infallible; all laboratory work is subject to error; and, given current population databanks and laboratory protocols, a witness or prosecutor will seldom (if ever) be justified in stating that the probability that a reported DNA match involves someone other than the suspect is so low as to make that possibility entirely implausible. Claims that treat DNA identifications as though they are as reliable as fingerprint identifications in the typical rape or murder case are unjustified; until technology and databanks improve, they are likely to remain so. Presentations suggesting to a judge or jury that DNA typing is infallible can rarely be justified and should generally be avoided. However, there might be instances where a prosecutor could legitimately argue that the DNA evidence conclusively proves that the defendant committed the offense. Two examples are illustrative: The victim is confined to an institution where access is limited to relatively few male attendants. Semen taken from the vagina is subjected to analysis and compared to blood samples from all possible males with access to the victim. The defendant's known sample is the only profile that matches the evidentiary sample. In this circumstance, the prosecutor could well argue that only the defendant could have committed the crime. In a prosecution for sexual assault of a child, again a limited number of people might have access to the child, with only one possible donor matching the evidentiary sample. Again, the prosecutor might argue that the DNA evidence is conclusive.
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ACCOUNTABILITY AND PUBLIC SCRUTINY Because the application of DNA typing in forensic science is to be used in the service of justice, it is especially important for society to establish mechanisms for accountability and to ensure appropriate public scrutiny. Accountability must be an issue in proficiency testing and accreditation. There is reason to be skeptical of entrusting any important regulatory matters to a self-regulating organization. Accordingly, any organization conducting accreditation or regulation of DNA technology for forensic purposes should be free of influence of private companies, public laboratories, or other organizations actually engaged in laboratory work. Private laboratories used for testing should not be permitted to withhold information from defendants on the grounds that "trade secrets" are involved. Alternatively, law-enforcement agencies could use only public laboratories for testing, so that the issue of "trade secrets" would not arise.10 Critics of DNA testing have suggested that the profit motive of private testing companies undermines their reliability. Although that criticism might be justified when companies are eager to market a product before it is ready, no general indictment of private companies on this basis is justified. Testing methods and data need to be made available for public scrutiny. There has been a notable dearth of published research in forensic DNA testing by scientists unconnected to the companies that market the tests. In contrast with the research approach whereby new drugs and biomedical devices undergo controlled trials of safety and efficacy, forensic science has used more informal modes of evaluating new techniques. The process of peer review used to assess advances in biomedical science and technology should be used for forensic DNA technology. Whether in publications or in court, companies might be reluctant to reveal their specific testing methods or the population data used to determine the probability of a match, because they consider this information to constitute a trade secret that could be exploited by competitors. However, the integrity of the scientific method and judicial due process demand that such information be revealed, particularly in criminal cases. The scientific community should require that the same standards used to assess new findings in other sectors of science be applied to DNA typing in the forensic setting. INTERNATIONAL EXCHANGE The need for international cooperation in law enforcement calls for appropriate scientific and technical exchange among nations. As in other areas of science and technology, dissemination of information about DNA
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typing and training programs for personnel likely to use the technology should be encouraged. It is desirable that all nations that will collaborate in law-enforcement activities have similar standards and practices, so efforts should be furthered to exchange scientific knowledge and expertise regarding DNA technology in forensic science. SUMMARY OF RECOMMENDATIONS In the forensic context as in the medical setting, DNA information is personal, and a person's privacy and need for confidentiality should be respected. The release of DNA information on a criminal population without the subjects' permission for purposes other than law enforcement should be considered a misuse of the information, and legal sanctions should be established to deter the unauthorized dissemination or procurement of DNA information that was obtained for forensic purposes. Prosecutors and defense counsel should not oversell DNA evidence. Presentations that suggest to a judge or jury that DNA typing is infallible are rarely justified and should be avoided. Mechanisms should be established to ensure the accountability of laboratories and personnel involved in DNA typing and to make appropriate public scrutiny possible. Organizations that conduct accreditation or regulation of DNA technology for forensic purposes should not be subject to the influence of private companies, public laboratories, or other organizations actually engaged in laboratory work. Private laboratories used for testing should not be permitted to withhold information from defendants on the grounds that trade secrets are involved. The same standards and peer-review processes used to evaluate advances in biomedical science and technology should be used to evaluate forensic DNA methods and techniques. Efforts at international cooperation should be furthered to ensure uniform international standards and the fullest possible exchange of scientific knowledge and technical expertise. REFERENCES 1. U.S. Congress, Office of Technology Assessment. Mapping our genes—the genome projects: how big, how fast? Washington, D.C.: U.S. Government Printing Office, 1988. 2. U.S. Department or Health and Human Services and U.S. Department of Energy. Understanding our genetic inheritance: the U.S. Human Genome Project, the first five years FY 1991-1995. Springfield, Virginia: National Technical Information Service, 1990. 3. President's Commission for the Study of Ethical Problems in Medicine and Biomedical
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and Behavioral Research. Screening and counseling for genetic conditions. Washington, D.C.: U.S. Government Printing Office, 1983. 4. DNA Report of New York State Forensic Analysis Panel. Albany, New York, 1989. 5. U.S. Congress, Office of Technology Assessment. Genetic witness: forensic uses of DNA tests. Chapters 3-5. OTA-BA-438. Washington, D.C.: U.S. Government Printing Office, 1990. 6. Beauchamp TL, Childress JF. Principles of biomedical ethics. Chapter 2. 3rd ed.New York: Oxford University Press, 1989. 7. de Gorgey A. The advent of DNA databanks: implications for information privacy. Am J Law Med. 16:381-398, 1990. 8. Macklin R. Mapping the human genome: problems of privacy and free choice. Pp. 107-114in:Milunsky A, Annas G J, eds. Genetics and the law. Ill. New York: Plenum Press, 1984. 9. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Splicing life. Washington, D.C.: U.S. Government Printing Office, 1982. 10. Annas GJ. DNA fingerprinting in the twilight zone. Hastings Center Rep. 20:35-37, March/April 1990. 11. National Association of Attorneys General. Resolution, adopted at winter meeting. December 10-13, 1989, Phoenix, Arizona.
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