MR. ASPLEN: Our first speaker today is Dr. Ray DePaulo, and he is a professor of psychiatry at Johns Hopkins University School of Medicine in Baltimore. He's also the director of the mood disorders programs at Johns Hopkins. His clinical and teaching activities focus on clinical depression and bipolar manic depressive illness. His research focuses in the genetics of bipolar disorder and depression, and we asked him to come and speak to the Commission today so that we could get an idea of what some of the issues are or probably more appropriately may be in the future. We've asked for much less than a prediction of what the technology will be more than what are the questions that will be raised as some of the technology progresses, and we hope that after his presentation we can have some discussion about that.

Again, referring back to yesterday's discussion about the final report and references to, what we didn't consider and what needs to continually be considered even after the expiration of the Commission, I think this is one of those class of issues that needs to be considered.

Dr. DePaulo, thank you for coming.

DR. DePAULO: Chris, thank you very much, and thank, I think, the Commission for inviting me to speak this morning.

As a clinical psychiatrist, I really was really quite concerned about what I might bring that would either be helpful or otherwise get me in trouble this morning to this discussion. As I tried to do a little bit of reading on forensics -- first of all, as Chris mentioned, I'm a clinical psychiatrist. I do research in the genetics of major psychiatric disorders; namely, bipolar disorder, and so I don't do the forensic work. I'm not a trained geneticist. Thank God that Dr. Crow is here since I studied out of his textbooks, but I'll reveal later that I've forgotten more than I've remembered.

DR. CROW: So have I.

DR. DePAULO: But as a clinical psychiatrist we do deal with a lot of practical issues around human behavior, and since there is an overlap there, I thought well, okay, I'll give it a shot. I would like my remarks, though, this morning to be seen as more of an orientation to a clinical perspective on some of these issues and to stimulate a discussion from there.

As Chris and I talked on the phone and he tried to relieve some of my anxiety with some supportive psychotherapy, I tried to organize a few -- how my DNA evidence will be used in a useful way in the courtroom in the future with regards to issues like innocence or guilt, sentencing, parole and probation, rehabilitation and treatment. I'm going to try to keep these in mind, although this is probably the last time you'll see these on one of my slides. These are the kinds of issues obviously that from a clinician's point of view that I'm asked to comment on from time to time.

The first and most fundamental point I want to make since all in all the things that I've read go back to one of my favorite topics when I was in college and that is the notion of free will is that genes are crucial in underlying our capacities as well as our constraints, and so that the capacity for choice and, if you will, free will are as much based on genes as genes are also one of the many things that constrain the limits of our ability to make decisions. I think if we keep that first principle in mind, the rest of what I have to say will flow fairly naturally.

An easy example is that intellectual capacity, the ability to analyze problems, obviously is one of those things that contributes in a practical way to free will, to decision making. Clearly there is an important genetic contribution to intelligence. There are many other elements of decision making, of course, but they are similar in form and limited by genetic as well as other influences.

The other element I want to mention is that another way to look at genes, as many of the genes that are going to turn out to be important in brain and in mental functioning, is that they have roles that are permissive as well as constraining, but no doubt about it genes do influence our mental faculties and our behavior. They influence the strength of our interests as well as the objects of our interests. An important factor as well is that it would appear that we act to select our environments based in part on our genetic makeup.

So that's kind of where I start in a general way. Actually this is important to me as a clinician as I work with patients and try to help them work with issues of behavior.

Let me jump to my conclusions, and this allows you to stop me at any time you want, Chris, and my comments -- I think I tried to do it a little bit like a newspaper article, the inverted pyramid,so you can stop me anywhere and I will have gotten into some semblance of a coherent review of what I know and think might happen.

Again, a basic point I would say from the scientific point of view is what we've learned so far from the study of DNA has added little in principle or of practical value for forensic evaluations of those accused or convicted of crimes. I'm reminded of what my colleague and esteemed geneticist, Eric Lander, said about gene therapy just a few weeks ago, and that is that he's happy for people to experiment with gene therapy in various tissues of the body, that is, if they're careful, but that he thinks we ought not to in many ways go around changing genes in germ cells, that is, in the ova or sperm cells since those then would be transmitted for generations to come. He said he has no clue that he could figure out no matter how smart he is what is going to happen over the next 100,000 years. So I wouldn't dare to compete with the powerful forces that have influenced our evolution to date.

I feel the same way about, if you will, the genetics of behavior in the courtroom; that is, that we have a jurisprudence system that has developed over many thousands of years, and what we know about DNA pales in significance to what we have developed over time in our courtrooms. I read articles by judges who say we're in terrible disarray. I'm sure that psychiatrists, behavioral geneticists, and psychologists are going to bail us out and solve our problems for us. Those of us with any sense of modesty whatsoever look at our own shop and say, oh, my God, when is the jurisprudence system going to bail us out of our mess? We're all dealing with relative levels of ignorance. When you're looking at it every day, what we don't know looks a lot bigger than what we do know.

What we will learn in the future is impossible to say, of course. My guess is that what we learn will have greater value genetically in sentencing and rehabilitation than in adjudicating guilt or innocence, and I'll give a few examples that I think maybe will suggest why that is.

Then finally my third conclusion is that there are significant risks, particularly in the sort of short, intermediate term for the use of behavioral genetic evaluations in the courtroom with errors of commission and omission being equally problematic. Commission and omission are probably poorly chosen words, but I couldn't think of a simple way to say it. We talked about the fact that a number of prosecutors can already see and maybe have already seen people saying that they shouldn't be found guilty and certainly shouldn't be punished for an act that they acknowledge based on their genes, that the genes made me do it kind of argument. At the same time we have seen and certainly will see again at least a few times people lining up on the other side and saying because of your genes you definitely should be committed -- that's a psychiatric term -- should be convicted and incarcerated based on those alone. Those are equally dangerous conclusions in my judgment, and they do have corollaries in sentencing and in parole decisions as well.

So that's kind of how a psychiatrist who works in genetics looks at the overall picture of things. What I want to do next is to do in the briefest and hopefully most painless way possible a brief orientation to how a psychiatrist looks at the different kinds of psychological or psychiatric problems that might impinge upon criminal behavior.

I want to give the two scenarios that I could think of, things that I thought were not very likely at least in the near term future, but at least I can imagine them and you can imagine others, and maybe those will be some of the questions that you pose that might get a discussion going.
One is that although it's unlikely to occur, what if by happenstance we discovered a gene variant that led in 95% of its carriers to either sexual offenses or to habitual burglary or violent assault, serial murders, et cetera? What about if that happened?

First off, I want to tell you that's extraordinarily unlikely. The evidence suggests that there is no such gene or even set of genes that would have anything like this kind of predictive value, but there is evidence that there are genetic influences on all of these behaviors. Would such a gene variant be valuable in adjudication, sentencing, and rehabilitation? Would it be ethical to use it or ignore it?

So I raise that -- I would ask your judgment in the legal profession as to what a 95% predictive value would do to your considerations. I don't have that answer. I think it's extraordinarily unlikely that it will come to that, but that's as close to 100% as we would ever get in genetics even for a disorder as simple and as straightforward as Huntingdon's disease, a rare, but very dominant form of dementia and movement disorder. Even people who carry the mutation only have a 95% likelihood of developing the disease, to say nothing then of how their behavior might be influenced by that disease.

Another issue that might come up that is more realistic, although it may not happen as soon as as I would like it, what if we found a single gene form of schizophrenia or bipolar disorder? We have been looking for those for about 12 years now, but we haven't found any. I always say my research group is tied for first. It's nothing to nothing. That would not be by itself terribly powerful since most patients with manic depressive illness or schizophrenia don't commit criminal offenses, at least not ones that are violent or would be the kind of ones that would be of concern here other than things like perhaps loitering if they're severely impaired.

Further research, though, could show how a particular gene say could cause a delusional idea, that is, a fixed false belief upon which a patient or subject may act in a way that was very harmful to somebody else. An example would be that some women, some mothers with delusional postpartum depressions will develop the delusion that their child, for example, has been possessed by the devil, and in fact I have had such cases, and in a terribly tragic way of trying to cleanse their child they literally scald the child to death. I've seen cases like that.

We could obviously discover a gene that would show us how that took place. The question is what would be the implication for adjudication? My sense would be that we already know about that clinically. I've never had a patient in such a state ever convicted of murder, so that I don't think the DNA would be very powerful in adjudication of guilt or innocence there. It would probably be very useful and powerful in educating the public as to how the courts reason to the decision, and certainly the information we have would be very important in terms of helping us both treat the patient and preventing the tragedy.

Those are the kinds of future developments, the first of which is extremely unlikely in any scenario that I can imagine, the second of which is still as of today at least wishful thinking, and to talk about how they might have greater or lesser influence on adjudication in the courtroom, there are four distinct paradigms, if you will, that guide our clinical approach to psychiatric problems, and that is there are four different modes of reasoning, four different ways of understanding the problems the patients present in the clinic.

The first is that we assume patients that we see as psychiatrists have diseases. Schizophrenia and manic depressive illness are diseases in the same way that pneumonia or asthma or epilepsy are diseases. The only difference is that the symptoms are fundamentally psychological symptoms. The causes are clearly related to brain malfunctioning, although we cannot tell you today exactly what the malfunction is.

The second category of problems, if you will, are people vary in their temperament or personality traits, and those in the context of the circumstances people find themselves in create vulnerabilities for patients that often present to the psychiatrist, and so that a person who is very careful and methodical might also be a person who likes routine, but doesn't deal very well with novelty. That would be an advantage in the routine everyday working situation, but would be a vulnerability for that person when they had to change jobs in a disorganized workplace, for example. But this temperament certainly influences patients' behavior, and we see that as a fundamental issue in psychiatry.

The behavior paradigm itself obviously is the one I've got highlighted because that's the paradigm that is of most direct salience here today, and it is -- I'm going to talk about it a little bit more -- the more complex of these four paradigms and has both physiological and social determinants.

Finally, the life story or narrative approach to psychiatric problems perhaps is best known in our culture because of the popularity at least at one time of Freud's theories of development and psychology, but there are many others, all of which, though, basically understand people in terms of where they have been and what their aspirations are and what has happened to them along the way.

Just to flesh these out, one more sentence or two worth. The disease perspective or paradigm uses the logic of categories for qualitative differences; that is, you either have schizophrenia or you don't. It might be difficult to tell, but we understand schizophrenia is something very different than say Alzheimer's disease and that they are not simply points along a curve.

On the other hand, temperament uses the logic of dimensions or quantitative differences, for example, people are more or less extroverted. There is no one that has absence of extroversion. People are more or less agreeable. The logic of behavior is the logic of goal directedness or teleology.

For example, the most simple of behaviors in some ways is eating behavior, and we can talk in terms of hunger and the strength of someone's hunger, but also what they consider food if they're carnivorous and then the logic of the narrative or life story is the logic of empathy. We understand people's losses. We understand aspirations that are either fulfilled like in the Wimbledon or that are frustrated there or anywhere else.

So these are the ways in which psychiatrists try to understand problems that patients present. All patients have personalities and temperaments. All patients have behaviors and all patients have a life story. Some have diseases that affect their mental functioning and some don't.

So at least three of the four perspectives apply to everybody I see to some degree. I guess the most important point is that it takes a synthesis of these really to come to some sort of formulation or understanding of a particular patient. In the courtroom you're often going to see combinations of these issues, and I think it is valuable for us as clinicians. It's probably going to be valuable in terms of also understanding the role of genetics in the courtroom to understand that the role of genetics will be different in these different perspectives.

To go from the bottom up, there is no direct application of genetics to the narrative, the logic of narrative or the narrative of empathy, but there are significant genetic contributions to behavior, temperament, and diseases.

I want to just mention again a little bit about the treatment rationale. It's a kind of short and sweet version of the treatment rationales for the four perspectives because that will get us into the issue of rehabilitation.

Obviously most of us are familiar with the disease construct when we go to a doctor and that the treatment rationale there is to cure, that is, to eradicate the abnormal body part by surgery or reverse the functional or biochemical abnormality and/or to prevent these things. In terms of personality or temperamental variations that cause vulnerabilities or problems, the main logic of treatment is to play your strengths and avoid your weaknesses.

In terms of the logic of treating behaviorial problems, getting to the thing that's most salient here, actually the logic is to stop the behavior. That's the first and foremost logic. This is where I think actually a number of judges look to psychiatrists incorrectly perhaps to solve their problems. We do not have a sterling track record in stopping bad behavior. Our theories are probably worse than our practice, but there are complementary roles for social support, stigmatization, and contingencies in stopping behavior. Once a patient stops the problematic behavior, though, then we work with them on all kinds of things that they perceive to be important in helping them sustain that abstinence.

Then lastly what is the logic or the treatment for a problem that we see is derived from either frustrated aspirations or loss or demoralization, and that is to rescript the story, to work with the patient to understand the story in a more constructive and positive light than they are understanding at the time they come to us. All of these again are going to be important to people in the criminal justice system because they're people. That means they will be at some point in their life patients as well and so forth.

The most complex of these is four paradigms is the behavior paradigm, but it's very important to keep in mind that again theorists ranging from Skinnard to others and Frued notwithstanding that choice or goal directedness is a defining element of behavior. Behavior is powerfully influenced obviously by environmental factors, and many behaviors I say develop from -- I should say develop in the context of drives or appetites, and they may be natural drives or self-induced drives.

We would call the drive for alcohol consumption in someone who is addicted to alcohol a self-induced drive even though there is a genetic vulnerability that makes some people more likely to develop that self-induced drive than others. In the families, for example, of alcoholics you find also an excess number of teetotalers as well as an excess number of alcoholics, suggesting that a little bit of knowledge about what you're vulnerable to might be useful as well. These drives do have genetic influences, be they influencing your eating, your sleeping, alcohol tolerance, et cetera.

So those top three are kind of the three areas that are very directly related to the behavior itself, but behavior also is influenced strongly by personality traits which have a significant genetic underpinning. For example, again in alcoholism the likelihood that you will drink before age 15 is strongly related to your personality traits. If you're adventure seeking and you're not very risk adverse, you're much more likely to experiment with alcohol at an early age. There are other influences as well such as what other people are doing around you is probably at least as powerful, and that has a significant influence it turns out on developing alcoholism. So it's not directly related to the behavior of consuming alcohol, but it is related to the kinds of behaviors you might experiment with.

Lastly, behavior can be strongly influenced by diseases including genetic ones, bipolar disorder. Again, when my patients are manic, they are very irritable. I have a fair number of manic patients who have either gotten themselves injured, one patient by jumping out of a window with the idea that they could fly. Others, though, because they had ideas that something wrong was going on. I had a patient that was released from a hospital he was in, and immediately he went out and picked a fight with a policeman and got his eye put out. I had another manic patient who when he became manic, felt intoxicated, felt high, and when he came halfway down from the mania, he broke into a drugstore. He thought I want some drugs. That will make me feel that way again. For the first time in his life he breaks into a drugstore, gets caught, gets shot, and is paraplegic.

Those are the stories I remember, but the fact is that this person when he was under the influence of mania was a completely different person than he was at other times, but the behavior was there nonetheless.

So those are the kinds of things that will include behaviors. It's important to keep in mind I want to reemphasize that most people with mania, even though they're very irritable, are not violent. Most people with depression, even though they may feel hopeless and worthless and like they shouldn't be alive, will not attempt or commit suicide. So, therefore, diseases alone and even finding single gene forms of diseases is not by itself going to revolutionize in my opinion our fundamental approach to behaviors in the courtroom.

Let's talk a little bit about again the two ways of looking at behavior. One is the components of driven behaviors, and for our purposes today that is either something that has a physiological underpinning like alcohol induced or alcohol addiction or eating or sleeping or sexual behavior all might be applied here. The point is that there is a physiological drive either naturally present, either developing say at puberty like the sex drive, or present or induced as in alcohol dependence and that it is influenced in these two directional arrow ways by conditioned learning and by choice that many people will have the drive.

Most people through conditioned learning will have socialized that drive and will make choices that are appropriate to the situation, although we're not all equally driven and our choices of what we find attractive or of interest to us are the not the same. That's true, for example, that some people are probably genetically more likely to use one type of drug, whereas others are probably more genetically more likely to use another drug. When it comes to drug use, like alcohol, the main genetic determinant of alcoholism that we know about so far is the ability to tolerate alcohol. If you can't tolerate alcohol, it's harder to become an alcoholic. So again the gene that is associated with this susceptibility to alcoholism may be a permissive, not deterministic gene. So you want to keep that in mind.

So this set of influences operates in many cases right over, on top of, if you will, the next set of influences. This is, if you will, from the behaviorists the operant paradigm or the socially learned components of behavior. I was taught these as the A, B, Cs, and it was antecedents, behaviors, and responses -- I'm sorry -- the antecedents, behaviors, and consequences approach. Basically it's the relationship between responses or choice or action and their consequences that is the powerful element.

Here you all are very familiar with this paradigm, as I think most people in law enforcement are. This is not a medical paradigm, but a social one. It is impossible to say that genetics is more important or that driven behaviors are more important than the socially learned behaviors. They in fact are intertwined and overlap with each other all the time. In this sense probably the one thing that Freud had contributed that will probably stand the test of time, although he might not be given credit for it, is that driven behaviors often have a way of motivating behaviors that are not apparently driven, but are at a distance.

I think of the fact that although shoveling snow is not a driven behavior I guarantee you, but that it might be because if I've got a foot of snow in front of the house, my wife might not offer me any breakfast or lunch if I don't shovel the snow. So that in the service of driven behaviors I might put into place some socially learned behaviors as well.

Just to spend the last two or three seconds of this on the other paradigms as they might have both a genetic influence and affect behavior, the temperamental paradigm or personality paradigm really goes back to actually Dale Myers, who started psychiatry at Johns Hopkins, but seeing personality or temperament as potentially life circumstances, as provocation, and then emotional or behavioral responses as the result is a reasonable way of understanding these.

The point I guess I want to make here for purposes of behavior is that there is an element of constitution and genetics there in our temperament, but it is not simply our temperament in terms of say extroversion or introversion that might be important for behavior like criminal behavior, but our physical constitution.

So again when we talk about the genetic influences on criminal behavior, we might be talking about something as simple as -- we're going to have to grapple with this -- just having an athletic body build may be a very powerful influence. This has been shown in many old studies. People tend not to study it anymore, but in the famous study of the Irish and Italian neighborhoods in Boston -- I forget the neighborhood -- by Glook & Glook in the 1920s temperament, body build, parental supervision, and social and economic status were the four most powerful influences on criminal behavior, and clearly there are important genetic influences on body building.

There are genetic associations that have been reported in the literature. You will see them. You will probably hear about them. With temperamental personality traits there have been variations in the dopamine receptor genes that have been reported to be associated with extroversion or novelty seeking. There have been variations in serotonin transporter genes reported to be in association with introversion, really the opposite side, if you will, of extroversion, but what you really need to know are two things.

One is that for every positive study there are probably three negative studies. Let's assume optimistically that these are right. I mean that optimistically. They would still if true account for a very small effect size each, and if we could put together the effect size of all the genetic factors on such traits, we probably wouldn't exceed much beyond 50% as best we can estimate today. Temperament is not behavior. So we're several steps removed.

The disease paradigm is the simplest for us in medical schools today. It's always nice to remind myself of it is one of the modern constructs, disease. The old construct really comes from the temperamental construct of Hypocrites, but basically when we understand something is a disease -- and again I don't consider alcoholism as a disease; I consider that a metaphor. Using the word "disease" is a metaphor for alcoholism. It is something like Alzheimer's or bipolar disorder or schizophrenia in terms of things that affect psychological functioning, but there is a symptom cluster that is due to some abnormality of a body part or malfunction of a body part, and that the ultimate cause -- there may be various ultimate causes in many cases which may be genetic, as in the case at least in some forms of Alzheimer's disease.

I just take you through Alzheimer's disease. The clinical syndrome is called dementia. That is an acquired loss of cognitive power in a state of clear consciousness. The pathology, the body part is in the brain where you see plaques and tangles, and the causes certainly include genes, but certainly other factors as well. So that's kind of the disease paradigm which can lead certainly to behavioral problems.

The current summary, again, I can't resist at least giving you a summary of where we are on the genetics of disorders like schizophrenia and bipolar disorder. Again, they are ones that you hear about in the courtroom as well as in the newspapers, but what is clear is that the twin studies strongly support a more genetic contribution to these and most major psychiatric diseases, but that genome wide studies to date -- and there have been several of them -- have not located any genes for simple dominant or simple recessive forms of these conditions, and therefore single gene forms of these disorders, if they exist, must be uncommon. That doesn't mean they don't exist, but they will be uncommon, and that most genes contributing to these disorders will turn out to be risk factors as in cancer risk factors or high blood pressure risk factors, not deterministic.

The life story paradigm -- we've talked about this -- is simply that we understand the problems a patient has in terms of setting, sequence of events, and outcome, and that probably the important part of the life story paradigm is to connect those two arrows, which are the personal meanings we attach to these settings and events and outcomes.

As a psychiatrist, I'm particularly sensitive to the fact that one after another over the last 100 years at least a variety of social theories, including ones based on genetics, suggest that the notion of free will is an illusion; that the most prevalent form of that argument today comes from what I consider a naive interpretation of neuroscience including genetic neuroscience.

Clearly the organ of the mind is the brain, but how the brain produces the mind remains a mystery, and as a smart person said, the brain may be more complex than it is smart, so we may never know how it does this, but nonetheless, the real optimists such as Edward Wilson suggest that we have a radical solution to this problem, and he may be right, but if so, if we do come to some radical solution to this brain-mind problem, how the brain produces minds, that it will alter our relationships with each other and our relationships to societies in ways that are difficult, if not impossible, to conceive; thus my conservatism in thinking that we have a lot more to do to revolutionize this.

I will be happy to stop there and take questions.

DR. CROW: One thing you said certainly resonates with me, and that is the role of new knowledge in genetics is much more likely to influence your viewpoints about punishment and rehabilitation than it is about diagnosis or discovery of the identification of who committed the crime. It seems to me that's the place where your subject and mine most intrude on social behavior.

I might add one thing about this. It is my hope that with the discovery of a genetic cause which might lead you to a little bit better biochemical understanding and therefore ultimately better psychiatric understanding, that maybe our society will move one small step in the direction of rehabilitation and prevention rather than punishment as the paradigm.

DR. DePAULO: I understand that. I'm not sure I totally agree with the last part of that statement. I certainly agree we ought to move closer to better rehabilitation.

MR. SCHECK: I guess while I subscribe and take to heart your overall points here, I think it's naive to believe that the judicial system or even others are actually going to believe for a minute that you know as little as you're telling us you know. We have to think very hard I think about our friend Dorothy Nelkin and all that she has written about genetic essentialism and mapping of the genome and what all this means.

I'll give you some examples. I am by no means as sanguine as you are that this will only be used in the sentencing process, although I agree that it will first come in there because the threshold for admissibility of evidence in the sentencing process is lower, and we can easily see its application in terms of narcotics cases and other things where we may know more about serotonin and dopamine and other things.

I gave the example of the cases, and I have been involved in a few of these postpartum depressions and women that, while I'm sure you're right, that everything we would know about that situation would be known clinically, I'll bet you anything that if courts knew that there was some kind of genetic component that was a risk factor, that would be extremely important to a fact finder and probably would even be admissible.

Even today there is this terribly tragic story of young man that was found hanging from a tree in Mississippi. There was an interview with all of his family members, his football coach, everybody saying that he was a happy young man, but he was dating white girls, and so there was some fear in that community -- and they're marching today -- that maybe it was a lynching.

If somehow they took his blood sample and they did some analysis and found that maybe there was some genetic variant that made him more susceptible to depression and they can link it to some other person in his family who had depression, et cetera, all of a sudden that's a huge investigative clue, and it would be regarded as maybe even dispositive in a case like that.

So I don't think you can just say -- I think that there is a feeling out there that this genetic essentialism, that this stuff is really, really important and it will be relied upon very quickly, I think.

DR. DePAULO: I didn't mean to suggest that it won't be influential. What I meant to suggest was that what we actually know is very little. You see it on TV shows already people making these arguments. I can certainly see how they would influence people. The questions I get all the time suggest that there are lots of people that are very ready to believe these things. At the same time I think that how they should work might turn out to be very different than how they will work is your point I think. Is that fair?

MR. SCHECK: Yes.

DR. DePAULO: By the way, I also don't disagree with you that information to support a diagnosis shouldn't be kept out of a courtroom. That's supportive information. I think that would be very helpful. We desperately want for clinical purposes and certainly they would help us in a courtroom as well to have genetic tests to confirm diagnoses in psychiatry.

Diagnoses in psychiatry -- you know, I don't know of any other area of medicine that has a lower reputation for the quality of their diagnoses even though when we do studies and do it properly,it turns out that we can diagnose clinical depression or schizophrenia as well as a doctor can diagnose a heart attack in an emergency room. Still we would like to do better. We're not great in diagnosing heart attacks in emergency rooms either.

So it's not that that information won't be valuable as part of getting as much information as you can, good information to the courtroom. I do think the issue comes to one of the early points I perhaps overly condensed, and that is once it gets in there are people going to construe it narrowly as it's intended, or are they then going to take it and turn it into the whole story, which I can hear you saying that. I can certainly see that.

It's one of those things psychiatrists are the only people in medicine where every patient we see is already a psychiatrist. Nobody comes in and tells their cardiologist it's my left anterior descending artery, but, believe me, everybody knows psychiatry.

MS. BASHINSKI: One issue that concerns me has to do with, forgetting the courtroom for the moment, talking about prevention because saying we know very little and yet seeing how people use that little knowledge and misuse it, what would your comments be or thoughts be about where we're headed or where we might be headed taking inappropriate action and possibly naive reactions to what people misunderstand as being a predisposition to criminal behavior, for example?

DR. DePAULO: You might want to specify that a little more. I can go in 18 different directions on that one.

MS. BASHINSKI: I really don't have the knowledge to say what the trends might be now, but I don't think it takes a great imagination to think that people would misuse or could misuse what they perceive to be predictors in criminal behavior.

DR. DePAULO: We don't have to actually go forward; we can go backwards and find those. It has already happened. There is no reason to believe it won't happen again, especially if we put the old wine in new skeins, if you will.

The XYY situation is a case in point that's in the living memory of most of us where it did turn out there were more people with XYYs in jail than would be expected by chance alone; however, once you look at the predictive power of that, it was terrible, and the simple-minded interpretation of that was very prejudicial.

So we've already had such examples. It's easy for me to see that we will -- to give Barry's point again, not only could it occur again; I think it will happen again at least once or twice.

MS. BASHINSKI: Precisely.

DR. DePAULO: What is it Churchill said about Americans? You can depend on them to do the right thing after they've exhausted all the other possibilities.

MR. ASPLEN: If Phil Reilly were here, I think he would talk about the value of understanding and perception of reality, which I think is a corollary to both what Jan and Barry were saying, and I guess this is an issue that is as important to the Commission. How do we in the criminal justice system deal with that perception as the integration of behavior genetics begin to flow into the courtroom? How do we deal with the fact that because there are allegations that in fact we can determine a thrill seeking gene -- how do we as a society deal with that to separate the reality from the perception?

DR. DePAULO: That's a good question. I would love to hear comments myself on that.

MR. GAHN: I suspect it's going to be dealt with the way we've dealt with it in all our years of jurisprudence, and it's generally going to be weighed as far as what is relative, what is probative, and whether it's going to come in as evidence or not. I don't think there is really anything you have to create that's new. I think what we have in place can handle any type of new evidence coming in.

DR. DePAULO: Again, I think there is no doubt that that's what I certainly believe, but the question is once you get say some small amount of information in, is there anything that you can do in the courtroom to make sure that people construe it correctly, don't take it to mean more than it does?

MR. CLARKE: It has been historically kept out not because it's not relevant. It's highly relevant, but it is considered over the years highly prejudicial because it is. Because someone has committed an act before; therefore, the fear is the fact finder will find it much more likely that the person has committed the same act today. So that's going to be a continuing concern, although I think legally we see more propensity evidence being allowed in court as time goes on. So this will become a great concern with perhaps what may be as probative of any evidence just on the limited issue of propensity.

MR. WOOLEY: The propensity evidence is usually being proffered by us, the prosecutors, and I think what we're talking about here is a possibility of a world where defense attorneys charged with the zealous advocacy rule in a case where it's an absolute lay-down for the prosecutor actually may be embracing the violence of the crime and saying look how horrible. It only could have happened because of some genetic underlying cause. We live in a system where we're looking to punish people generally for violitional behavior, and this wasn't any more volitional than the fact that this man may get Huntingdon's disease or something like that.

That's the argument I see. I see it being proffered by defense attorneys in cases where there is nothing else to be said, and that's what I think is going to be the real interesting playing field in which this may be played out in our legal system. I don't know how that's going to play out.

MR. REINSTEIN: We see it right now in capital sentencing. There have been several cases where that has been introduced. The other thing that we see is the defense of the family tree, whether it's in the area of violence or -- I had one case where they developed a family tree regarding sleep disorders and trying to hook that in as far as mitigation in the sleep case incidents.

MR. GAINER: I take a little bit different approach than Barry does in the sense of what this information can provide in the context of historically in the adjudication phases of cases we look at what and how as opposed to the dispositional phase is more why. So I think as least historically I think it will remain that way. Frequently in a case in defending a client you want to get into the why. Sometimes you can and sometimes you can't, and this will be obviously a formative phase if these predictors actually do come about.

MR. SCHECK: As I said before, I think it will start in the sentencing phase for many of the reasons you're saying, but it will very quickly move over to the other phase, and there is no reason to believe that it will not be used in a prosecution trying to prove its case because in so many of the cases mental states are this critical battleground of certainly many violent crimes. That's what we're trying to decide.

MR. WOOLEY: I'll disagree with you on the prediction. I think it's more likely to be used on the other side of it. I really have a hard time envisioning a scenario where people from our side of the room will be proffering it as part of their case in chief to show this person committed the crime. Maybe I'm wrong, but I predict it as more seeing it in a scenario where the case is such a lay-down for the prosecution, it's just so solid and there is just no question of the who and the what and the how, that a defense attorney charged with trying to do what he or she could ethically do to zealously advocate his or her client's interests would be talking about my client's lack in the requisite mental status because this was predetermined. That's where I think these things are going to be discussed.

DR. DePAULO: I would rather see one problem than two, so I hope you're right, but my guess at least at different times and different places there will be influences that will move in both directions.

MR. GAINER: Maybe the prosecutor would want to prove that one didn't have the predisposition.

DR. DePAULO: Actually I should have mentioned that. I think that it is conceivable that somebody will say see, he has schizophrenia, and if you have a set of genes and other things that are sufficient to say the logic that he did it is very small.

MR. WOOLEY: As sort of a rebuttal, but in terms of just laying your case out there, no.

MR. REINSTEIN: The one place we're seeing it as far as the prosecution, the closest is the SEP cases for civil commitments, and that hooks into propensity, but you're seeing that in the state's case in chief to keep somebody in the state hospital after they get out of prison.

MR. SCHECK: Frankly, there is a law now that was approved by the United States Supreme Court in a Kansas case where when you're trying to prove that somebody is a violent sexual predator, the statute had in it that there was genetic inherent characteristics that made somebody a pedophile. Isn't that one of the first areas -- I mean if there is more of a recidivist hardwire defense in our law than pedophilia, I don't know what it is.

In fact, the case went to the United States Supreme Court. At first the Kansas Attorney General was saying we need these laws to permanently commit somebody because there is no cure for pedophilia, but that was not actually helpful to his argument. By the time he got to the Supreme Court he was saying maybe there is a cure for it because it was more helpful for him to say that than otherwise to uphold the constitutionality of the statute. But I'm not sure that many people agree with that.

MR. WOOLEY: I don't think that we're disagreeing. I think that those types of things from a prosecutor's perspective will be dealt with the way Norm talked about it. Prosecutors will want to present it in the states it's available propensity evidence under 404 the way Norm said. I'm just having trouble envisioning a scenario where you can go to the next step and say let me tell you about his genetic predeterminant.

MR. SCHECK: What is so striking about all of this, take the example given about the postpartum depression, perceiving the baby as possessed by the devil. The absence of the genetic factors would be critical for the prosecution to prove that maybe it really is delusional or it's culpable conduct versus bringing it in, and that kind of so-called propensity evidence or risk factor evidence, if you will, don't you think that in cases like that the courts are going to be more eager to adopt the, quote, hard science than they will looking at what we're told is really something we already know clinically?

I think they will. I think they will in a heartbeat because of the frustration that judges and lawyers have with psychiatric testimony. I mean the geneticist is a -- here he or she comes in the white coat and they're talking about genes. They're talking about something that, you know, it's there or it isn't there. I think this genetic essentialism is extremely powerful and attractive and will find its way in real quick.

MS. BASHINSKI: My point was that it's not just in the courtroom. It's in all aspects of how we behave socially. I fear for the education system, for example. We identify young children we want to target, and that goes back to the history --

MR. WOOLEY: By the way, I need to correct the record. I said we prosecutors. I'm not a prosecutor as of three months ago. I think I'm just genetically predetermined to seeing the world that way.

MS. ABRAMSON: Any other comments? Thank you.

We'll move on to Dr. Crow, who will comment and report on the research and development working group report. Did everyone get a copy of that?

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