Expert evidence: the genetic chimerism and its implications for the world of lawExpressO (2010)
AbstractThe proof is formal means of reaching the truth of the facts, whether constitutive, hindering, alter or eliminate the alleged claims of the parties, however, this is weighted by the judge, who will resort to their cognition to the factual arguments presented for the best fair outcome of the dispute. Meanwhile, questions are: the systemic principle of free legal conviction of the judge must be guided by their cognitive truth, or that, even famous and it is neutral axiologically exception when confronted? The answer to this question and honorable routine discoveries in science; chimerism and genetic mosaicism and its consequences on the reliability of DNA testing, although not discussed in court on three broad scenarios: The congenital genetic chimerism, genetic mosaicism and microchimerism. The peaceful location of the Judiciary about the reliability of tests based on the possibility of the judge to consider the result as proof reliable, but not infallible in clarifying the truth sought. However, the recurrent view is based on only two aspects: The objective criterion, the real possibility of human error and the subjective criterion, based on convincing the judge free. In any case, there exists at least one focus to be considered, especially in criminal cases where the presumption of innocence of the accused must be reached on the principles, basic democratic and legal defense of the procedure, until the fair verdict: The priori criterion, should consider the likelihood of such anomalies, even though his statistics are still insufficient, because the possibility of error must be considered in all its variability, on pain of unjust greedy and consequent loss of the goal of the Democratic State. The error is not a priori in the test itself, but in disregard of these methodological innovations. Under current logic, the negative should be categorical, while the probability affirmations, however, the new fact reverses the poles making fundamental investigations. This new requirement will, for cognitive advantage in their legal criterion, a reorganization of the laboratory sector diffuse. The simple argument of the economic consideration, alluded to the negative of this new need, can not or should not override the constitutional principles leveraged. Methods bibliographic searches of views from the law, beyond the study of documented cases of chimerism have been used for the preparation of the arguments. Scientific advances can not be discarded, even dealing with transitory truth. And this is just one example, where the linearity and absolutism, typical of legal positivism, produced on the classic example of DNA testing, like any scientific truth was put into its final phase of transience.
- Chimerism genetic,
- DNA testing,
- Expert evidence
Publication DateFebruary 5, 2010
Citation InformationDaniel Bezerra Bevenuto. "Expert evidence: the genetic chimerism and its implications for the world of law" ExpressO (2010)
Available at: http://works.bepress.com/daniel_bevenuto/1/