When asked what motivates me to do this work, I have two overriding emotions. The first, unsurprisingly as a lawyer, is a deep commitment to the rule of law. Not in some theoretical sense given in law lectures, but the practice of it in everyday work. All defendants should be entitled to a vigorous defence, and we should cherish our principles: innocent until proven guilty; the holding of the state to account in its investigations; and for justice to be done.
However, the second emotion is a combination of fear and anger. Many of my clients are more intelligent and engaging than me, yet they have ended up accused of serious offences or in prison. I, on the other hand, am a graduate professional with all the privilege that that entails. How did we end up in these different places? Why were the chances that were given to me not available to those I represent? I am convinced that, had the stable life and education that was on offer to me been given to many of my clients, they would not have found themselves in the criminal justice system. Generation after generation of our fellow citizens have been left behind. They form the vast majority of both defendants and victims in the courts. If we want to stop this happening in the future, we cannot simply look to the criminal justice system: we will need to invest in education and our communities. However, as well as the arguments about nurture’s role in explaining why people do bad things, I have become intrigued by proposals regarding the part that nature plays.
Some of you may have read about the so-called warrior gene that is said to predispose individuals to violence. What is fascinating is how it has already been used in criminal cases and whether this will herald a new age in how we deal with crime.
In a US case from 2009, the defendant, Davis Bradley Waldroup, accepted that in 2006 he killed his estranged wife’s friend and shot and injured his wife. After 11 hours of deliberation, the jury acquitted him of first degree murder and convicted him of voluntary manslaughter and attempted second degree murder. The defence had called an expert to say that Waldroup could not commit first degree murder because he was ‘unable to engage in the reflection and judgment necessary to premeditate the crimes’. The reason, according to the defence, was genetics.
Scientists had identified a gene, the MAOA gene (which has been nicknamed the warrior gene), that predisposes individuals to violence. Scientific research has suggested that violence associated with having the warrior gene is significantly worsened if the perpetrators were sexually abused as children (which was the position in the Waldroup case). So a combination of nature (presence of the warrior gene) and nurture (the defendant’s childhood) had combined to give him a potential defence to the most serious of all violent offences.
This is a development that could amount to a revolution in criminal law. If a defendant’s genetic make-up contributes to his or her offending, can he or she really be fully culpable for the offence? What sentence would be appropriate for such offenders?
Oddly enough, even if the world’s defence lawyers seek to have their clients tested and push this issue to the forefront, the real controversy will come if prosecutors start to use it. What happens if prosecutors, faced with circumstantial evidence of a crime or the possibility of other suspects, want to perfect their evidence with a blood sample or saliva swab from the most likely defendant to see if he or she has the so-called warrior gene? What if the government announces a murder gene collection database? Once that starts happening, we will all be up in arms!
Despite these misgivings, and the likelihood that the justice system will initially resist these arguments, I think, by sheer attrition, we will commence a period of acceptance, after which the technology of genetics and predisposing genes will become another chapter in the criminal law handbook that will change the field forever.