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74 Brooklyn Law Review 325 (2009)


The article considers how and when, if at all, is it appropriate to use race in presenting forensic DNA evidence in a court of law? This relatively straightforward question has been wholly overlooked by legal scholars. By pursuing it, this article promises to transform fundamentally the presentation forensic DNA evidence. Currently, it is standard practice for prosecutors to use race in presenting the odds that a given defendant's DNA matches DNA found at a crime scene. This article takes an interdisciplinary approach to question the validity of this widespread but largely uninterrogated practice. It examines how race came to enter the construction and presentation of forensic DNA evidence in the early 1990s and considers how its use has persisted and developed over time. It asks the basic question of what race adds as a practical matter to ability of the finder of fact to make fair and accurate decisions and weighs this against the potential dangers of bias created by introducing issues of race as genetic into the context of what is usually a violent crime. It considers how current technological advances have largely rendered the use of race irrelevant to the calculation of odds ratios necessary to establish a match between a DNA sample left at a crime scene and DNA from a suspect. It argues that in most cases such evidence should be excluded as irrelevant, or if deemed relevant it should be held inadmissible because the dangers of infecting the proceedings with racial prejudice outweigh any possible benefit that introducing the race-based statistics could provide. This is particularly the case where race is being introduced in a context that involves constructing a relationship between genetics and violent crime.

The article concludes with a brief synthesis of the arguments for ending the practice of using race frame the presentation of forensic DNA evidence. It notes this would not materially hinder the ability of prosecutors to obtain convictions using DNA evidence, nor of defendants to challenge such evidence. Yet, by removing the gratuitous introduction of race into a context of genetics and violent crime, such reform would promote a positive and significant reorientation of the relation among race, genes, and justice.