In 1843, she delivered a report to the Dorothea Lynde Dix 1802–1887 ◆ ◆ ◆ ◆ ◆ 1802 Born, Hampden, Maine 1820 Missouri Compromise enacted, limiting slavery 1821 Opened private school in B
Trang 1Maintenance is most often used to provide temporary support to a spouse who was financially dependent on the other during the marriage Temporary maintenance is designed
to provide the necessary support for a spouse until he or she either remarries or becomes self-supporting Many states allow courts to
consid-er marital fault in detconsid-ermining whethconsid-er, and how much, maintenance should be granted
These states include Connecticut, Georgia, Hawaii, Iowa, Kansas, Kentucky, Maine, Mas-sachusetts, Missouri, Nebraska, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, West Virginia, and Wisconsin
Like the entire body of divorce law, the issue
of maintenance differs from state to state If a spouse is found to have caused the breakup of the marriage, Georgia, North Carolina, Virginia, and West Virginia allow a court to refuse maintenance, even if that spouse was financi-ally dependent on the other North Carolina requires a showing of the supporting spouse’s fault before awarding maintenance Illinois allows fault grounds for divorce but excludes consideration of fault in maintenance and property settlements Florida offers only no-fault grounds for divorce but admits evidence of adultery in maintenance determinations
An antenuptial agreement, or PREMARITAL AGREEMENT, is a contract between persons who plan to marry, concerning property rights upon divorce A postnuptial agreement is a contract entered into by divorcing parties before they reach court Traditionally, antenuptial agree-ments were discouraged by state legislatures and courts as being contrary to thePUBLIC POLICY
in favor of lifetime marriage An antenuptial agreement is made under the assumption that the marriage may not last forever, which suggests that it facilitates divorce No state expressly prohibits antenuptial agreements, but, as in any contract case, courts reserve the right to void any that it findsUNCONSCIONABLEor to have been made under duress
State statutes that authorize antenuptial and postnuptial agreements usually require that the parties fulfill certain conditions In Delaware, for example, a man and a woman may execute
an antenuptial agreement in the presence of two witnesses at least ten days before their marriage
Such an agreement, if notarized, may be filed
as a deed with the office of the recorder in any
county of the state (Del Code Ann tit 13, § 301) Both antenuptial and postnuptial con-tracts concerning real estate must be recorded
in the registry of deeds where the land is situated (§ 302)
Jurisdiction over a divorce case is usually determined by residency That is, a divorcing spouse is required to bring the divorce action in the state where he or she maintains a permanent home States are obligated to acknowledge a divorce that was obtained in another state This rule derives from the FULL FAITH AND CREDIT CLAUSE of the U.S Constitution (art IV, § 1), which requires states to recognize the valid laws and court orders of other states However, if the divorce was originally granted by a court with no jurisdictional authority, a state is free
to disregard it
In a divorce proceeding where one spouse is not present (an EX PARTE proceeding), the divorce is given full recognition if the spouse received proper notice and the original divorce forum was theBONA FIDEdomicile of the divorcing spouse However, a second state may reject the divorce decree if it finds that the divorce forum was improper
State Courts are not constitutionally re-quired to recognize divorce judgments granted
in foreign countries A U.S citizen who leaves the country to evade divorce laws will not be protected if the foreign divorce is subsequently challenged However, where the foreign divorce court had valid jurisdiction over both parties, most U.S courts will recognize the foreign court’s decree
The only way that an individual may obtain a divorce is through the state Therefore, under the Due Process Clause of theFOURTEENTH AMENDMENT to the U.S Constitution, a state must make divorce available to everyone If a party seeking divorce cannot afford the court expenses, filing fees, and costs associated with the serving or publication of legal papers, the party may file for divorce free of charge Most states offer mediation as an alternative to court appearance Mediation is less expensive and less adversarial than appearing in public court
In January 1994 the AMERICAN BAR ASSOCIA-TION Standing Committee on the Delivery of Legal Services published a report entitled Responding to the Needs of the Self-Represented Divorce Litigant The committee recognized that
a growing number of persons are divorcing pro
508 DIVORCE
Trang 2se, or without the benefit of an attorney Some
of these persons are pro se litigants by choice,
but many want the assistance of an attorney and
are unable to afford one In response to this
trend, the committee offered several ideas to
the state bar associations and state legislatures,
including the formation of simplified divorce
pleadings and the passage of plainly worded
statutes The committee also endorsed the
creation of courthouse day care for children of
divorcing spouses, night-court divorce sessions,
and workshop clinics that give instruction to
pro se divorce litigants Many such programs
are currently operating at district, county, and
family courts around the United States
In the United States, divorce law consists
of 51 different sets of conditions—one for each
state and the District of Columbia Each state
holds dear its power to regulate domestic
relations, and peculiar divorce laws abound
Nevertheless, divorce law in most states has
evolved to recognize the difference between
regulating the actual decision to divorce and
regulating the practical ramifications of such a
decision, such as property distribution, support
obligations, and child custody Most courts
ignore marital fault in determining whether to
grant a divorce, but many still consider it in
setting future obligations between the parties
To determine the exact nature of the rights and
duties relating to a divorce, one must consult
the relevant statutes for the state in which the
divorce is filed
FURTHER READINGS
American Bar Association Standing Committee on the
Delivery of Legal Services 1994 “Responding to the
Needs of the Self-Represented Divorce Litigant ”
Chi-cago: American Bar Association.
Boumil, Marcia M., et al 1994 Law and Gender Bias.
Littleton, Colo.: Rothman.
Legalines on Domestic Relations—Keyed to Wadlington and
O’Brien’s Cases and Materials 2009 Eagan, MN: West.
Mather, Lynn 2003 “Changing Patterns of Legal
Represen-tation in Divorce: From Lawyers to Pro Se.” Journal of
Law and Society 30 (March).
Phillips, Roderick 1991 Untying the Knot: A Short History of
Divorce Cambridge, England: Cambridge Univ Press.
Wardle, Lynn D 1994 “Divorce Violence and the No-Fault
Divorce Culture ” Utah Law Review (spring).
Woodhouse, Barbara Bennett 1994 “Sex, Lies, and
Dissipation: The Discourse of Fault in a No-Fault
Era ” Georgetown Law Journal 82.
CROSS REFERENCES
Annulment; Family Law; Premarital Agreement.
vDIX, DOROTHEA LYNDE Dorothea Lynde Dix was a remarkably fore-sighted educator and social reformer who made major contributions to the welfare of persons with mental illness, prisoners, and injured Civil War soldiers Dix was born on April 4, 1802, in Hampden, Maine Her father, Joseph Dix, was
an alcoholic and circuit-riding Methodist preacher who required young Dorothea to spend her time laboriously stitching and pasting the thick religious tracts he wrote and sold during his travels Although considered a strict and sometimes abusive father, Joseph Dix taught his daughter to read and write at an early age Dix, in turn, taught reading and writing to her two younger brothers Her mother, Mary (Bigelow) Dix, suffered from depression that made it difficult for her to care for her three children
At age 12, Dix lived briefly with her father’s mother in Boston and then moved in with an aunt in Worcester, Massachusetts Although her grandmother helped with her education, Dix had little formal training Gifted with strong beliefs and intellectual abilities, Dix, at age 14, began teaching young girls a rigorous curricu-lum that she had created with emphasis on the natural sciences and ethical responsibilities In
1821 Dix moved back to Boston and opened a private school on property belonging to her grandmother
Dix combined teaching with a prolific schedule of writing books and religious tracts, including Meditations for Private Hours (1828), The Garland of Flora (1829), and American Moral Tales for Young Persons (1832) One of her best known and most-often reprinted publications was Conversations on Common Things, which was published in 1824 as a guide
to help parents answer everyday questions, such
as “Why do we call this day Monday?” and
“What is tin?”
After her father’s death in 1821, Dix used her income to support her mother and her two younger brothers who had come to live with her
in Boston In addition to the private school she ran, Dix also conducted free evening classes for indigent children She read prodigiously, con-tinued to study the natural sciences as well as history and literature, attended public lectures, and met the leading members of Boston’s intellectual and religious communities She made the acquaintance of many Unitarians
MAN IS NOT MADE BETTER BY BEING DEGRADED;HE IS SELDOM RESTRAINED FROM CRIME BY HARSH MEASURES,
EXCEPT THE PRINCIPLE
OF FEAR PREDOMINATES IN HIS CHARACTER;AND THEN HE IS NEVER MADE RADICALLY BETTER FOR ITS INFLUENCE
—D OROTHEA D IX
Trang 3and became friends with William Ellery Chan-ning, the famed pastor of Unitarian Federal Street Church in Boston and his wife Julia Allen Channing
Never robust, Dix suffered intermittently from depression and chronic upper respiratory infections variously attributed to tuberculosis and malaria Her illnesses would flare up from time to time, exacerbated by the demanding schedule she kept and she developed a pattern
of cutting back briefly on her work until she was able to resume her tasks In 1836 Dix broke down while trying to care for her ill grand-mother in addition to all her other duties and
it became clear that she would need to take an extended period of rest
She closed her school and sailed to Europe where she stayed in Liverpool, England, with William Rathbone and his wife who were friends
of the Channings Rathbone was a prominent humanitarian and philanthropist who intro-duced Dix to a number of social welfare advo-cates including prison reformer Elizabeth Fry and William Tuke, a Quaker who had opened the York Retreat for the Mentally Disordered and who pioneered the theory of humane treatment for persons with mental illness While Dix was in England, both her mother and her grandmother died, the latter leaving Dix a large inheritance The income from the inheritance and royalties from her books were sufficient to give Dix a comfortable living for the rest of her life Dix returned to Boston in
1838 and spent several years visiting friends and family members and traveling to various points
of interest
In 1841 a ministerial student asked Dix
to teach a Sunday school class to a group of women incarcerated in the East Cambridge Jail
in Massachusetts Her first visit to the jail marked
a turning POINT in her life After teaching the class, Dix toured the jail On the lower level she found the “dungeon cells” that housed inmates considered to be insane Dix was horrified to find men, women, and children, half-naked and underfed, chained to walls, and forced to sleep
on the floors of the filthy unlit cells
Dix immediately took action She surveyed every jail, poorhouse, and prison in Massachu-setts In 1843, she delivered a report to the
Dorothea Lynde Dix 1802–1887
◆
◆
◆
◆
◆
1802 Born,
Hampden, Maine
1820 Missouri Compromise enacted, limiting slavery
1821 Opened private school
in Boston, Massachusetts
1841 Visited jail and sees plight of
"insane" prisoners
1854 Kansas-Nebraska Act passed
1857 Supreme Court issues Dred Scott decision; Missouri Compromise unconstitutional
1861–65 Civil War
1877 Reconstruction ends, federal troops removed from the South
1868 Fourteenth Amendment ratified, mandated that states provide equal protection and due process to all persons
1843 Delivered report on mentally ill
to Massachusetts state legislature
1845 Published treatise suggesting prison reforms
1854 Congress passed, but president vetoed, federal funding for state mental hospitals
1867 Resumed work on behalf
of mentally ill persons
1861 Appointed Superintendent of Union Army Nurses
❖
1887 Died, Trenton, N.J.
Dorothea Dix.
510 DIX, DOROTHEA LYNDE
Trang 4Massachusetts state legislature Legislators and
others at first criticized the report and denied
the charges When Dix’s charges were sustained
by independent observations, the legislature
allocated funds to expand the State Mental
Hospital at Worcester
Dix continued her investigations in other
states, first in New England and eventually
nationwide Dix traveled the country
systemati-cally collecting data that she would then present
in reports (called“memorials”) to various state
legislatures Seeking the establishment of
state-supported institutions, Dix would lobby state
officials and influential persons and attempt to
raise a public outcry over the dreadful
condi-tions she had found
Until Dix began her campaign to better the
lives of persons with mental illness, the popular
assumption was that persons who were insane
were incurable and did not feel deprivation
in the same way as ordinary persons Dix was
among the first to espouse the theory that
insanity was treatable and that better living
conditions could do much to help persons with
mental illness
In three years, the indefatigable Dix traveled
more than 30,000 miles crusading for her cause
Her labors proved highly successful In 1843,
when she delivered her first memorial, there
were 13 mental institutions in the United States
Several decades later, that number had grown to
123 with Dix helping to found 32 of them In
addition, Dix’s efforts played a major part in the
founding of 15 schools for what were then called
the“feeble-minded,” a school for blind persons,
and a number of training schools for nurses
Buoyed by her success, Dix next set out to
accomplish her goal of persuading Congress
to set aside five million acres in federal land
grants; the idea was that income from the land
trusts would be used to endow state mental
hospitals In 1854 Congress passed the
legisla-tion she sought Although President MILLARD
FILLMORE favored the bill, it did not reach his
desk before the end of his term The bill was
vetoed by Fillmore’s successor, President
FRANKLIN PIERCE, thus dashing the hopes of
Dix and her supporters of establishing federal
funding for mentally ill persons Eventually, in
1855, Congress provided funds for the
found-ing of St Elizabeth’s Hospital in Washfound-ington,
D.C., which remains the oldest large mental
hospital that is federally funded
Worn out and discouraged, Dix traveled
to Europe to rest Instead, she found herself investigating the same deplorable conditions in prisons and poorhouses in numerous European countries and once again began campaigning for, and achieving, many reforms Throughout the 1850s, Dix worked for humanitarian reform
in the United States and Europe as well in Canada, Russia, and Japan
In 1845 Dix published a TREATISE entitled Remarks on Prisons and Prison Discipline in the United States, in which she advocated for progressive reforms for ordinary prisoners in-cluding the separation of prisoners according to the type of offense committed and the need for education of prisoners
In 1861, at the beginning of the Civil War, the 59-year-old Dix volunteered her services and was made superintendent of women nurses for the Union Army Although she worked until
1866 helping to organize women volunteers, establish hospitals, and raise funds, her capabili-ties as an administrator were questioned and her tenure was viewed as only partially successful
Dix resumed her work with persons with mental illness in 1867 She found many pro-blems including rising IMMIGRATION rates, state treasuries depleted by the war, a growing popula-tion of indigent persons with mental illness, and state legislatures that had new priorities She continued her fight until ill health forced her
to stop In 1881 Dix took up residence in the guest quarters of the Trenton, New Jersey, state hospital she had helped found She lived there until her death on July 17, 1887
FURTHER READINGS Brown, Thomas J 1998 Dorothea Dix: New England Reformer Cambridge, Mass.: Harvard Univ Press.
Dix, Dorothea 2008 Remarks on Prisons and Prison Discipline in the United States (1845) Whitefish, Mont.:
Kessinger.
Lightner, David L 1999 Asylum, Prison, and Poorhouse: The Writings and Reform Work of Dorothea Dix in Illinois.
Carbondale: Southern Illinois Univ Press,
vDIXON, JULIAN CAREY Representative JULIAN C.DIXON, who served the West Los Angeles District for 22 years in Congress, left a legacy as a supporting legislator
onCIVIL RIGHTSand national security matters He
is also remembered for the differences he made
in California and in the District of Columbia in
DIXON, JULIAN CAREY 511
Trang 5his various roles serving in the U.S House of Representatives
Julian Carey Dixon was born in Washington, D.C., in 1934 He moved to Los Angeles, California, with his family at the age of ten
He grew up and attended public school in Los Angeles In 1957 he left to serve in the Army, returning in 1960 to receive his degree from California State University in 1962 Dixon then went on to earn his law degree from Southwest-ern State University in Los Angeles in 1967
Dixon spent only a few years in the private PRACTICE OF LAWbefore entering a life devoted to politics and public service In 1972 he was elected
to the California State Assembly, where he served for six years In 1978 he was elected to serve in the U.S House of Representatives He served his constituents in the 32nd District of California for twenty-two more years in the House
Throughout his career, Julian Dixon was a strong advocate for civil rights causes During the 1980s he was chairman of the Congressional Black Caucus He also created aMARTIN LUTHER KING Jr Memorial in Washington, D.C The HUMAN RIGHTS Campaign, this nation’s largest lesbian and gay political organization, views Dixon as an advocate for their cause, citing his introduction of the $8.6 billion relief bill after the 1994 earthquake in Los Angeles The bill, for the first time ever in a federal law, specifically outlawed discrimination of disaster victims on the grounds of sexual orientation Dixon was also co-sponsor of bills which sought to reduce discrimination against minority groups, includ-ing the Employment Non-Discrimination Act and Hate Crimes Prevention Act
From the beginning of his career on Capitol Hill, Dixon earned the respect of his peers and served as chairman of several committees In
1984 he was Rules Committee chairman of the Democratic Convention He also served as chairman of the Committee on Standards of Official Conduct, better known as the Ethics Committee This position proved to be Dixon’s most challenging position, particularly in 1989 when then-House Speaker Jim Wright a Demo-crat from Texas, was being investigated for ethics violations Georgia Republican Newt Gingrich backed the Republicans in their attacks against the speaker, which predictably sparked a defensive tone from Democrats As chairman of the Ethics Committee, Dixon emerged as a bi-partisan leader who focused
on the facts and the true issues presented In June 1989, Wright resigned As a result of his leadership in this episode, Dixon was com-mended by members of both sides of the House for his fairness and judgment
More recently, Dixon was ranking Demo-crat on the House Permanent Select Committee
on Intelligence Additionally, he served on a panel to determine defense spending Here, he fought on behalf of his constituents for the appropriation of funds to aid southern Califor-nia communities hurt by base closings and defense budget cuts
Dixon was also a senior member of the Appropriations Committee and, during the mid-1990s, chaired the Washington, D.C., subcommittee where he was able to make a difference in the city of his birth by focusing on public safety and education During his leader-ship of the subcommittee, Congress began a crackdown on the scandal-ridden administra-tion of Mayor Marion Barry, leading the way for
a federal takeover of the finances for Washing-ton, D.C Because of his efforts in WashingWashing-ton, Dixon is still heralded by the leadership of Capitol Hill and the citizens of the city
Julian Carey Dixon 1934–2000
◆
1934 Born,
Washington, D.C.
1950–53 Korean War
1957–60 Served in U.S Army
1961–73 Vietnam War
1967 Earned LL.B from Southwestern State University
1972–78 Member of California State Assembly
1979–2000 Served in U.S House
of Representatives
2000 Died, Inglewood, Calif.
1992 Riots broke out in Los Angeles after "not guilty" verdict in Rodney King beating trial
512 DIXON, JULIAN CAREY
Trang 6Dixon is, of course, highly regarded and
remembered by his own constituents in western
Los Angeles He always came through with aid
in times of emergency In 1992 the streets of Los
Angeles were rocked as buildings were broken
into, looted, and burned after a verdict of“not
guilty” was issued in the trial of two white police
officers who beat motorist RODNEY KING in a
highly-broadcast, videotaped incident Dixon
acquired emergency funds for the businesses of
Los Angeles that suffered in the riots He also
came to the aid of his city after the 1994
Northridge earthquake
Perhaps his most lasting contribution to the
Los Angeles community, however, was the effort
he put into establishing the MTA, the commuter
rail system in Los Angeles Dixon was well aware
that the city needed a solution to its major traffic
problems, and high-speed public transportation
seemed to be a good answer The city and MTA
recognized his efforts; they renamed one of the
busiest rail stations the“Julian Dixon Metro Rail
Station.” Dixon was so highly revered by his
constituents that he won re-election in the
November 2000 election with 84 percent of the
vote He died one month later, on December 8,
2000, at the age of 66 in Inglewood, California
DNA EVIDENCE
Among the many new tools that science has
provided for the analysis of forensic evidence is
the powerful and controversial analysis of
deoxyribonucleic acid (DNA), the material that
makes up the genetic code of most organisms
DNA analysis, also called DNA typing or DNA
profiling, examines DNA found in physical
evidence such as blood, hair, and semen, and
determines whether it can be matched to DNA
taken from specific individuals DNA analysis
has become a common form of evidence in
criminal trials It is also used in civil litigation,
particularly in cases involving the determination
ofPATERNITYor identity
History and Process of DNA Analysis
DNA, sometimes called the building block or
genetic blueprint of life, was first described
by the scientists Francis H C Crick and James
D Watson in 1953 Crick and Watson identified
the double-helix structure of DNA, which
resembles a twisted ladder, and established the
role of DNA as the material that makes up the
genetic code of living organisms The pattern of
the compounds that constitute the DNA of an individual life-form determines the develop-ment of that life-form DNA is the same in every cell throughout an individual’s body, whether
it is a skin cell, sperm cell, or blood cell With the exception of identical twins, no two indi-viduals have the same DNA blueprint
DNA analysis was first proposed in 1985 by the English scientist Alec J Jeffreys By the late 1980s, it was being performed by law enforce-ment agencies, including the FEDERAL BUREAU OF INVESTIGATION(FBI), and by commercial labora-tories It consists of comparing selected segments
of DNA molecules from different individuals
Because a DNA molecule is made up of billions
of segments, only a small proportion of an individual’s entire genetic code is analyzed
In DNA analysis for a criminal investiga-tion, using highly sophisticated scientific equip-ment, first a DNA molecule from the suspect is disassembled, and selected segments are isolated and measured Then the suspect’s DNA profile
is compared with one derived from a sample of physical evidence to see whether the two match
If a conclusive nonmatch occurs, the suspect may be eliminated from consideration If a match occurs, a statistical analysis is performed
to determine the probability that the sample of physical evidence came from another person with the same DNA profile as the suspect’s
Juries use this statistical result in determining whether a suspect is guilty or innocent
Although DNA analysis is sometimes called DNA fingerprinting, this term is a misnomer
Because the entire DNA structure of billions of compounds cannot be evaluated in the same way that an entire fingerprint can, a so-called match resulting from DNA typing represents only a statistical likelihood Thus, the results of DNA typing are not considered absolute proof
of identity A DNA nonmatch is considered conclusive, however, because any variation in DNA structure means that the DNA samples have been drawn from different sources
An example from the early 1990s illustrates the way in which DNA EVIDENCE is used in the criminal justice system After a Vermont woman was kidnapped and raped in a semi-trailer truck, police identified Randolph Jakobetz, a truck driver, as a suspect in the crime Officers searched the trailer that Jakobetz had hauled on the night of the crime and found hairs matching those of the victim After arresting Jakobetz,
DNA EVIDENCE 513
Trang 7law enforcement officials sent a sample of his blood to the FBI laboratory in Washington, D.C., for DNA analysis and for comparison with DNA taken from semen found in the victim shortly after the crime
At Jakobetz’s trial, an FBI expert testified that the blood and semen samples were a
“match,” concluding that there was one chance
in 300 million that the semen samples could have come from someone other than Jakobetz
Based on this and other strong evidence, Jakobetz was convicted and sentenced to almost 30 years
in prison
Jakobetz appealed the decision, claiming that DNA profiling was unreliable and that it should not be admitted as evidence In the first major federal decision on DNA profiling, the U.S Court of Appeals for the Second Circuit upheld the lower court’s decision to admit the DNA evidence (United States v Jakobetz, 955
DNA Evidence: Boon or Boondoggle for Criminal Justice?
Since its first use in the late 1980s,
DNA EVIDENCE has been a subject
of controversy in the U.S criminal justice
system Although courts have increasingly
allowed DNA analysis to be admitted as
evidence, doubts about the propriety of
such evidence remain In general, the
debate over DNA evidence pits those such
as prosecutors and law enforcement
officials who are eager to use it as a tool
to fight crime against those, particularly
defense attorneys, who claim that it is
unreliable and will lead to the wrongful
conviction of innocent people
Law enforcement officials and
pros-ecuting attorneys are quick to identify
the benefits of DNA evidence for the
criminal justice system DNA evidence,
they argue, is even more useful than
fingerprinting, with several advantages
over that more traditional tool of
inves-tigation DNA evidence is more readily
available in criminal investigations than
are legible FINGERPRINTS because body
fluids and hair are more likely to be left
at the scene of a crime DNA evidence is
also“robust”; that is, it does not decay or
disappear over time The DNA in a piece
of physical evidence such as a hair may
be examined years after a crime
Law enforcement officials have
con-fidence in the reliability of DNA analysis
performed by commercial and
govern-ment forensic laboratories They
main-tain that innocent people have no need
to worry about the use of DNA evidence
in the legal system In fact, they argue, DNA evidence will help to ensure that innocent suspects are not convicted because the DNA of such suspects will not match that taken from crime-related samples
Proponents of DNA evidence fear that successful courtroom attacks on its reliability will erode public confidence in its use, giving the state less power in bringing criminals to justice But most remain confident that it will be a permanent part of criminal investigation
According to Eric E Wright, an assistant attorney general for Maine,“The history
of forensic DNA evidence consistently and ever increasingly demonstrates its reliability It has been subjected to savage scrutiny unlike any FORENSIC SCIENCE
before, and it has survived Soon the only wonder about DNA evidence will be: What was all the fuss about?”
Defense attorneys and others who are skeptical about DNA evidence strongly disagree with many of these claims While generally accepting the scientific theory behind DNA evidence, including its ability to exculpate the innocent suspect, they assert that it is not nearly as reliable in practice as its proponents claim They argue that DNA evidence may be unreliable for any number of reasons, including contami-nation owing to improper police proce-dures and faulty laboratory work that may produce incorrect results Scandals
in local, state, and federal crimes labs over DNA testing have added strength to this argument
Barry C Scheck is a leading critic of DNA evidence A professor at the BENJA-MIN N.CARDOZOSchool of Law, a defense attorney in several notable cases involv-ing DNA evidence, and an expert for the defense in the celebrated 1995 MURDER
trial ofO.J SIMPSON, Scheck has led the movement for increased scrutiny of DNA evidence Conceding that “there is no scientific dispute about the validity of the general principles underlying DNA evi-dence,” he nevertheless argued that serious problems with DNA evidence remained He found particular fault in the work of forensic laboratories and pointed to research that showed that as many as 1-4 percent of the DNA matches produced by laboratories were in error Laboratories denied such claims
Scheck also criticized the procedures used by laboratories to estimate the likelihood of a DNA match Because juries consider the probabilities generated by the labs—figures such as one in 300 million or one in 5 million—when asses-sing the validity of DNA results, it is important to ensure that they are accurate DNA critics assert that statistical estimates of a match may be skewed by incorrect assumptions about the genetic variation across a population In some population subgroups, they claim, indi-viduals may be so genetically similar that
514 DNA EVIDENCE
Trang 8F.2d 786 [2d Cir 1992]) The U.S Supreme
Court later declined to hear an appeal
The Jakobetz case illustrates the way in which
the probabilities generated by DNA analysis
can be used as devastating evidence against a
criminal suspect Juries have tended to view
the statistical results of this analysis as highly
incriminating, which has caused many defense
attorneys to challenge the validity of the results,
and many prosecuting attorneys to defend them
At the same time, defense lawyers have used DNA analysis as evidence to reverse the con-victions of their clients
Legal History of DNA Evidence
In general, state and federal courts have incre-asingly accepted DNA evidence as admissible
The first state appellate court decision to uphold the admission of DNA evidence was Andrews v
State, 533 So 2d 841 (Fla App 1988), and the
a DNA match is more likely to occur
when comparing samples drawn from
within that subgroup Examples of such
subgroups are geographically isolated
populations or tightly knit immigrant
or religious communities Other
pro-blems may occur in cases where suspects
are closely related to one another Critics
call for more research on population
substructures and DNA similarities
with-in them, with-in order to get a better
under-standing of statistical properties
In response to these arguments,
proponents of DNA analysis maintain
that the importance of frequency
calcula-tions has been overrated They claim that
such calculations are, if anything,
conser-vative Furthermore, they argue that a
match itself is more important than a
frequency calculation and that questions
of how to calculate frequency should not
mean that DNA evidence is inaccurate
DNA critics call for a number of
other procedures to make DNA testing
more accurate They advocate sample
splitting, a procedure by which samples
of physical evidence are sent to two
forensic laboratories in order to better
guard against mistaken matches They
also ask that all DNA laboratories be
required to undergo proficiency testing
through blind trials Such trials would
have laboratories analyze DNA samples
without knowing whether the analysis
was being done for an actual
investiga-tion or for evaluainvestiga-tion purposes only
Blind trials would yield error rates for
each laboratory that could be given to a
jury to help it weigh the significance of
DNA evidence Blind trials would also
provide incentives for laboratories to
lower their error rates
Criminal defense lawyers have also called for state-funded access to the services of experts who can evaluate the handling and analysis of DNA evidence
These“counter experts” would give the defense a chance to scrutinize DNA evidence more closely Defense attorneys also assert the need for access to laboratory records and physical samples for retesting Providing this access would require the state to preserve samples
Prosecutors and attorneys have con-tinued to identify new uses for DNA in law enforcement and in the legal system
In 2001 a Wisconsin appeals court upheld the validity of a criminal warrant for the arrest of “John Doe 12,” issued for a 1994RAPEcase just days before the
STATUTE OF LIMITATIONS was to expire
What made the warrant noteworthy was that the suspect was identified only
by his DNA profile This was the first known case in which prosecutors sought arrest warrants based solely on a DNA description When a DNA evaluation matched the DNA of “John Doe 12”
with Bobby Richard Dabney Jr., the state replaced “John Doe” with Dabney’s name Dabney’s attorney had sought to dismiss the claim because Dabney was not named in the original complaint until after a six-year statute of limita-tions had expired
Following this decision, the Wiscon-sin state legislature amended the law governing the statute of limitations This law expressly addressed DNA evidence and extended the time limits for such cases The amendments permit prosecu-tion any time within 12 months of the time a DNA match results in a probable identification of a person
In another legal first, attorneys for
PLAINTIFFNanette Sexton Bailey of West Palm Beach, Florida, used DNA evidence found on bed sheets to allegeADULTERY
on the part of her husband in a pending divorce matter Five years into their marriage, the couple mutually agreed to amend their prenuptial agreement to include a“bad boy clause,” guaranteeing Sexton $20,000 per month for her husband’s infidelity When she found a nightgown and stained bed sheets in their home, she wrapped them in a plastic bag When the sheets and nightgown were examined by a Denver laboratory, it con-firmed that the DNA on the items belonged to another woman Although the husband eventually challenged the
“bad boy” clause, the judge ruled that the DNA evidence was admissible as evi-dence of the adultery
Science may eventually solve many
of the problems regarding DNA evi-dence In the meantime, debate over its use led to changes that will allow courts and juries to better assess the guilt or innocence of criminal suspects
FURTHER READINGS Committee on DNA Forensic Science 1996 The Evaluation of Forensic DNA Evidence Washington, D.C.: National Academy Press.
Federal Judicial Center 2000 Reference Man-ual on Scientific Evidence New York: Lexis.
National Institute for Justice 2001 Under-standing DNA Evidence: A Guide for Victim Service Providers Washington, D.C.: National Institute for Justice CROSS REFERENCE
Forensic Science.
DNA EVIDENCE 515
Trang 9first major federal court decision to uphold its admission occurred in Jakobetz By the mid-1990s, most states’ courts admitted DNA test results into evidence
No court has rejected DNA evidence on the grounds that the underlying scientific theory is invalid However, some courts have excluded it from evidence because of problems with the possible contamination of samples, questions surrounding the significance of its statistical probabilities, and laboratory errors Several states have passed laws that recognize DNA evidence as admissible in criminal cases, and others have enacted laws that specifically admit DNA evidence to help resolve civil paternity cases
The admissibility of novelSCIENTIFIC EVIDENCE such as DNA profiling is governed by two different judicial tests or standards: the Frye, or general acceptance, standard, and the Daubert,
or relevancy-reliability, standard The Frye test, which comes from the 1923 case Frye v
United States, 293 F 1013 (D.C Cir.), holds that the admissibility of evidence gathered by a specific technique (such as DNA analysis) is determined by whether that technique has been
“sufficiently established to have gained general acceptance in the particular field in which it belongs.” In Frye, the Court of Appeals for the District of Columbia Circuit ruled that a lie-detector test using a blood-pressure reading was not admissible as evidence By the 1970s,
45 states had adopted this common-law stan-dard for the admission of novel scientific evidence
The U.S Supreme Court overruled use of the Frye test in federal courts in its 1993 decision Daubert v Merrell Dow, 509 U.S 579,
113 S Ct 2786, 125 L Ed 2d 469 In Daubert, the Court held that the FEDERAL RULES OF EVIDENCE, enacted in 1975, govern the admission
of novel scientific evidence in federal courts It found that Frye provides too stringent a test and that it is incompatible with the federal rules, which allow the admission of all evidence that has“any tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence” (Fed R
Evid 401) The Court found that judges have
a responsibility to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”
In general, courts that have used the Daubert standard have been more likely to admit DNA evidence, although many jurisdic-tions that have relied on Frye have permitted it
as well Nearly all cases in which DNA evidence has been ruled INADMISSIBLE have been in jurisdictions that have used Frye
States are free to adopt their own standards for the admission of evidence and have increasingly adopted the Daubert standard By
2006 a majority of states had generally adopted the Daubert standard, though the individual states vary about how they apply this standard
A minority of states continue to apply either the Frye standard or a standard that differs from both Daubert and Frye
Use of DNA Evidence
A report issued by the JUSTICE DEPARTMENT in
2002 indicated that two-thirds of chief prose-cutors in the United States rely on DNA testing during investigations and trials The use of DNA evidence has exonerated at least ten individuals who were wrongly convicted of MURDER and faced the death penalty, whereas the sentences
of more than 100 others convicted of lesser crimes were overturned based upon DNA evidence The FBI maintains a database that may be used to compare DNA samples from unsolved state and federal crimes Since its inception in 1992, the FBI database has made more than 5,000 matches, thus allowing law enforcement officials to solve crimes that might not have been solved without the use of DNA The FBI crime laboratory dominated re-search in forensic sciences for much of the 1980s and 1990s However, allegations surfaced
in 1995 that suggested scientists at the crime lab had tainted evidence related to the 1993 bombing of the World Trade Center in New York City A former chemist in the lab, Frederic Whitehurst, testified before the House Com-mittee on the Judiciary that the FBI had knowingly drafted misleading scientific reports and pressured FBI scientists to commitPERJURY
by backing up the false reports These allega-tions injured the FBI’s reputation and led to speculation in the late 1990s that prosecutors could not rely on the FBI’s analysis of DNA evidence
Even as the FBI rebuilt its reputation, other questions surrounding the use of DNA evidence have arisen since the late 1990s In 1999 the DEPARTMENT OF JUSTICEissued a report stating that
516 DNA EVIDENCE
Trang 10evidence from at least 180,000 unsolved RAPE
cases had not been submitted for testing A 2002
report by USA Today suggested that several
thousand pieces of evidence from rape and
HOMICIDEcases had not been submitted for DNA
testing, so they do not appear in the FBI’s
database In 2000 Congress allocated $125
million to support the national DNA database
system, including $45 million designated to
allow states to test evidence from unsolved
crimes However, several states claim that their
law enforcement officials are so swamped with
current cases that they cannot test older,
unsolved cases Moreover, a small number of
states—primarily New York, Florida, Virginia,
and Illinois—have aggressively developed their
own DNA databases and have contributed
heavily to the FBI’s system These states
accounted for more than half of the FBI’s
DNA matches between 1992 and 2002
Use of DNA evidence to overturn criminal
convictions remains a common topic of
discus-sion among legal and criminal justice experts, as
well as the popular media One of the most
closely followed cases involved the convictions
of five young men for the rape of a jogger in
Central Park in New York City in 1989 The
five men in the case, dubbed the“Central Park
Jogger Case,” served sentences ranging from
seven to eleven years for the incident However,
another man, Matias Reyes, who was convicted
for murder in 1989, confessed to the rape Testing
confirmed that the semen found in the victim
and on the victim’s sock matched Reyes’s DNA
Upon receiving the new evidence, the New
York County district attorney’s office asked the
New York State Supreme Court to overturn
the convictions of the five men Several groups,
including women’s rights groups, cited this case
as an example of why law enforcement should
be more proactive in pursuing unsolved rape
cases through the use of DNA testing
In 2004 Congress passed the Justice for All
Act, Pub L No 108-405, 118 Stat 2260, to
expand access to DNA testing for rape victims
and convicted felons The total funding provided
in the statute amounted to $1.4 billion However,
PresidentGEORGE W.BUSHrefused to allocate the
full amounts called for in the statute, drawing
fire from Democrats who supported the bill
By 2009 several states as well as the FBI
had announced significant expansions of their
DNA databases Authorities began taking DNA
samples from thousands of people who had been accused of crimes but not yet convicted
CIVIL RIGHTS activities, including the AMERICAN CIVIL LIBERTIES UNION, have argued against such programs, noting that these programs have converted the United States into a “genetic surveillance society.”
FURTHER READINGS Bennett, Margann 1995 “Admissibility Issues of Forensic DNA Evidence ” University of Kansas Law Review 44 (November).
Federal Judicial Center 2000 Reference Manual on Scientific Evidence New York: LEXIS.
Jurs, Andrew 2009 “Judicial Analysis of Complex & Cutting-Edge Science in the Daubert Era: Epidemiologic Risk Assessment as a Test Case for Reform Strategies ” Connecticut Law Review November.
Moore, Solomon 2009 “F.B.I and States Vastly Expand DNA Databases,” New York Times
Robinson, Robert 2009 “Daubert v Merrell Dow Pharma-ceuticals and the Local Construction of Reliability.”
Albany Law Journal of Science and Technology 19.
Wright, Eric E 1995 “DNA Evidence: Where We’ve Been, Where We Are, and Where We Are Going ” Maine Bar Journal 10 (July).
CROSS REFERENCE Forensic Science
DOCK
To curtail or diminish, as, for example, to dock
a person’s wages for lateness or poor work The cage or enclosed space in a criminal court where prisoners stand when brought in for trial
DOCKET
To enter the dates of judicial proceedings scheduled for trial in a book kept by a court
In practice, a docket is a roster that the clerk
of the court prepares, listing the cases pending trial
An appearance docket contains a list of the appearances in actions and a brief abstract of the successive steps in each case
A judgment docket is a listing of the judgments entered in a particular court that is available to the public for examination Its purpose is to give official notice of the existence
of liens or judgments to interested parties
A docket fee is a sum of money charged for the docketing of a case or a judgment or a set amount chargeable as part of the costs of the action
DOCKET 517