the human genome project has identified a number of genes that are linked to violent behavior

The Human Genome Project has identified a number of genes that are linked to violent behavior, including the gene that produces MAOA. This type of genetic evidence is affecting the criminal and civil courts, as in the recent cases in Italy discussed in class where genetic evidence was used to mitigate sentences. There are multiple points at which the courts could consider genetic evidence.

Imagine a defendant charged with murder. Genetic screening shows that he has the low activity variant of the MAO-A gene and there is evidence that he was severely abused as a child, possibly increasing his propensity for violent behavior. Based on this, answer the following questions:

1. Should this genetic evidence be considered at a bail hearing? In other words, should we permit pre-trial detention based on genetic predictions of the defendant’s future behavior? Why or why not?

2. Should the defendant be permitted to present this genetic evidence as a defense at the trial, when his guilt or innocence is being determined? Why or why not?

3. Courts currently are accepting some genetic evidence at sentencing. Given this, do you think that the defendant’s genetic predisposition should be considered to be an aggravating factor or a mitigating factor? Explain your answer.

For example, if it was used as an aggravating factor, the prosecution might call for a harsher sentence, claiming that the defendant’s genetic makeup means that he is unlikely to be rehabilitated and therefore presents a high future risk to society.

If it was used as a mitigating factor, the defense might request a less severe sentence on the grounds that the defendant’s genetic makeup affects his ability to control his own actions?