Hackers Underworld 2: Forbidden Knowledge/Hackers Underworld 2: Forbidden Knowledge.iso/LEGAL/JUDNA.P26

Text File | 1991-08-14 | 28KB | 572 lines

July 1991


              JUDICIAL ACCEPTANCE OF DNA PROFILING

                               By

                     John T. Sylvester, J.D.
                               and
                     John H. Stafford, J.D.
                         Special Agents
             DNA Task Force, Legal Counsel Division
                Federal Bureau of Investigation
                         Washington, DC


     Forensic DNA profiling has been under intense judicial
scrutiny by the courts for over 2 years. (1)  Even so, an
overwhelming majority of the courts have admitted forensic DNA
evidence after reviewing it under the varying standards
traditionally afforded novel scientific evidence.  In doing so,
the courts have recognized in numerous decisions that genetic
profiles developed from an individuals DNA are reliable,
probative, and objective. (2)

     However, despite the many favorable decisions, DNA
evidence, if challenged, must continue to undergo a pre-trial
review, at least until a court of appeals in the jurisdiction in
which the evidence is offered addresses the question of whether
DNA evidence is acceptable.  At such hearings, challenges to the
evidence place at issue the ability of the forensic laboratories
to match similar DNA profiles reliably, and thereafter, the
ability to assess the frequency that the matched profile is
expected to occur in the U.S. population.  However, it is
anticipated that with the continued strong support of the
scientific community, prosecuting attorneys, and investigators,
DNA profiling will soon be accepted by trial courts as routine
evidence.

ADMISSIBILITY STANDARDS

     Traditionally, two standards have been used to admit novel
scientific evidence in U.S. courts.  Specifically, courts have
adopted either the "Frye standard" or the "relevancy standard"
when deciding whether novel scientific evidence, such as DNA
profiling, will be admitted for use in court. (3)

The "Frye" Standard

     Courts applying the "Frye" standard will admit novel
scientific evidence only after it has gained general acceptance
in the pertinent scientific community. (4)  Accordingly, the
courts role under "Frye" is more properly limited to an
assessment of the extent to which the scientific community has
embraced the technique as a whole. (5)  The analysis performed
in any particular case is not generally at issue in
a "Frye" hearing. (6) Rather, challenges pertaining exclusively
to any one analysis are reserved for the jury, which may place
less weight on the evidence if it concludes that the accepted
testing procedures were not properly applied to the sample in
the case.

The Relevancy Standard

     As an alternative to the "Frye" standard, many courts have
turned to the "relevancy standard" as the basis for determining
whether the court will accept evidence that arises from new
scientific techniques.  The "relevancy standard" is based on the
Federal Rules of Evidence and directs the court to consider the
relevance, (7) the potential for unfair prejudice, and the
reliability of the offered testimony. (8)  The general
acceptance of the technique by the scientific community is a
factor in determining the admissibility of new scientific
evidence, but it is not the overriding concern under this
standard.

     For example, evidence may be rejected under the relevancy
standard, if the jury is asked to accept the expert's bare
assertion on faith alone. (9)  In DNA profiling, an
autoradiogram produces a permanent record of the results of this
procedure and is available for review by the defendant and jury.
The danger of a jury being asked to accept a scientific opinion
on faith alone is thereby minimized. (10)

The "Castro" Standard

     Recently, a New York trial court in "People" v. "Castro"
(11) expanded these traditional approaches during its review of
DNA evidence.  After determining that forensic DNA profiling met
the standards established under "Frye", the court established a
new precedent for the admissibility of DNA profiling evidence,
not just to determine whether the DNA profiling technique is
generally accepted but also to determine whether the technique
was properly applied in the specific case before the court.

     The defendant Castro was accused of murder.  During the
investigation, investigators obtained a speck of blood from the
suspect's watch.  The subsequent DNA analysis performed by a
private laboratory associated the blood with that of the
victim's.  However, defense experts disputed the laboratory's
interpretation of the test results, contending that the profile
was uninterpretable or inconclusive.

     The court became convinced that the private laboratory did
not properly apply the accepted technique for DNA profiling in
this case and excluded the evidence of a match from use at
trial.  Interestingly, the defendant ultimately pled guilty,
admitting the blood on his watch band was that of the victim's.

     A few other courts have followed the approach of "Castro".
(12) A party introducing DNA evidence under this standard must
now demonstrate at a pre-trial hearing that the laboratory
properly performed the accepted scientific techniques in
analyzing the forensic samples in the particular case.

JUDICIAL ACCEPTANCE

     Forensic DNA profiling has been reviewed extensively by the
courts under the varying standards afforded novel scientific
evidence, and the number of favorable decisions is encouraging.
An overwhelming majority of courts have admitted forensic DNA
profiling results from the three major laboratories involved in
forensic DNA analysis--the FBI, Cellmark, and Lifecodes.  Courts
in at least 49 States have admitted DNA evidence in over 417
hearings and trials. (13)  The FBI Laboratory alone has
accounted for admissions in over 120 trials and 85 separate
admissibility hearings in 40 States. (14)  Moreover, 23
appellate level courts, including eight State courts of last
resort, have reported favorable decisions after reviewing DNA
profiling under the varying standards of review. (15)

     Recently, however, a single State appellate court balked at
recognizing DNA profiling, but left the door open to future
admissions.  In "Commonwealth" v. "Curnin", (16) the Supreme
Judicial Court of Massachusetts reversed the trial courts
admission of the DNA evidence analyzed by a private laboratory.
The court observed that the offer of population statistics,
which convey to the jury how common or rare the reported DNA
profile is in the U.S. population, was not supported by
testimony from an expert on population genetics.  In the absence
of such testimony, the prosecution could not demonstrate the
general acceptance of the private laboratorys statistical
approach to DNA analysis. (17)

     Moreover, the court concluded that without the population
statistics, the jury could not assess the significance of a DNA
profile match.  Therefore, the court excluded the evidence of
the match as well.  However, the court stated that it will
consider evidence derived from DNA profiling in the future,
assuming the offer of the population statistics is properly
supported by testimony from an expert qualified in the field of
population genetics. (18)

     A very few unreported trial court decisions have also
rejected DNA profile evidence offered in a criminal proceeding.
(19) These courts have rejected DNA evidence for differing
reasons, to include the existence of some dissent in the
scientific community over some aspects of the approach to
population statistics and the complexity of the evidence.
However, the rulings that reject DNA evidence because of some
divergence in the scientific community are clearly not
consistent with the standards established by "Frye".  Because
"Frye" requires only