Fishback v. People

but its Acoustical’s assets did assume

debts. support

I also cannot a construction

this statute which not allows but actu-

ally encourage fraudulent activities.

Statutes such the one now us before

were enacted because of well-known recur- problems in the

rent construction trade subcontractors, paying

with contractors not laborers, paying

subcontractors not suppliers. paying majority’s

both not sharp practices, by allowing

decision invites unpaid suppliers go simply

materials be- intermediary

cause contractor uses supplier a direct materials when

intermediary neither does work on the con- project

struction nor manufactures materi- possibilities

als. The for sham transactions

require great imagination. no

Because the statute does not demand the placed upon by majority,

construction I ignoring

because believe

our decision in South-Way, because a

straight forward stat- construction just

ute would afford more result as well

as avoid a constitutional conflict in this

case, I dissent.

Jeffrey FISHBACK, Petitioner,

The PEOPLE of the State of

Colorado, Respondent.

No. 92SC68.

Supreme Colorado, Court of

En Banc.

April

Rehearing Denied May Thurston,

Richard F. Leftin, Solomon L. Denver, petitioner. Norton, Gen.,

Gale A. Atty. Raymond T. Slaughter, Gen., Chief Deputy Atty. Timo- thy Tymkovich, Gen., M. Sol. John Daniel Gen., the test articulated in Atty. Mark CRE and Robert Dailey, Deputy States, (D.C.Cir.1923). Gen., F. 1013 Russel, Atty. Deborah United First Asst. Denver, Gen., Pratt, Atty. Isenberg Asst. affirmed, holding appeals The court respondent. generally ac- DNA evidence to be relevant scientific com- cepted within the delivered the Chief Justice ROVIRA thus, and admissible under the munities Opinion of Court. affirm. standard set forth We deci granted certiorari to review the We Appeals sion Court Colorado II. SCIENTIFIC BACKGROUND (Colo. Fishback,

People v. understanding A of the scientific basic affirming court’s ad App.1991), the trial techniques underlying DNA principles and testimony based of identification mission in order to understand typing is essential comparison deoxyribonucleic acid on a legal relating admissibility. issues to its (DNA) from the defendant’s blood obtained purposes typing for forensic utilizes DNA sample recov DNA from a semen with the technique a which the characteristics admissibility of ered from the victim. The suspect’s genetic profiled structure are a question a DNA identification evidence is compared genetic structure and impression this court. of first hair, blood, found in material such as from a crime scene. The semen recovered I. FACTUAL AND PROCEDURAL if profiles compared then to see two BACKGROUND match, the they profiles match. If two significance of such match is de- convicted of first The defendant was assault, the likelihood of a degree burgla- calculated to determine gree second sexual occurring profile between the de- ry, mandatory crime. match and sentence violent sample and a rived from the crime scene connecting The evidence the defendant The person suspect. is not the third who crimes the victim’s identifi- these included accomplished can by which this is process defendant, fingerprint cation of (A) parts: theory into The divided three expert profile that a DNA and (B) techniques underlying typing; fluid a medical from seminal obtained (C) theory; meth- apply examination the victim after assault significance calculating the statistical od profile from a blood sam- matched DNA of a declared match. ple taken from defendant. evidentiary conducted The trial court an theory. A. DNA hearing suppress on defendant’s motion that determines DNA is material hearing At the evidence. living things. of all genetic characteristics two testified: Dr. William Set- witnesses significant DNA for foren- feature of zer, University of Colo- the director that, exception of purposes is with the sic Diagnos- rado Health Center DNA Sciences twins,3 no two individuals have identical qualified Laboratory1 tic as an who Furthermore, DNA. because identical biology, expert in molecular the area of particular vary within DNA does testing”; Lisa genetics, “DNA and Dr. individual, one a DNA molecule found Forman, Diagnos- employee an of Cellmark DNA found will identical to the cell tics,2 expert qualified who person. every cell of that genetics. population At the conclusion beings, every cell that has hearing, In human the trial court ruled that DNA which distributed under both nucleus contains typing evidence was admissible originate the un- professor of identical twins from Setzer also an assistant 3.Because Dr. pediatrics, biochemistry, biophysics, genet- single egg, they single sperm cell with a ion of a ics. identical DNA molecules. will share laboratory performed Cellmark is in this case. forty-six poly- across sections the nucleus of At “polymorphic called sites.” some morphic sequences the cell. These sections referred to as sites pairs short base chromosomes, twenty-three tandem, form they repeat again. over and over pairs: pair each are inherited sequence comprising given half of core al- mother, the other half from the father. lele is called a Variable Number Tandem twenty-three Repeat (VNTR) These chromosomes contain may just contain a few genes comprise many or thousands of which to- as as several dozen nucleotide genetic makeup of an individual. “Al- bases. tal Because the of times the number given gene, sequence of polymorphisms pairs repeats may leles” are a core of base i.e., vary they vary among individuals, from individual to the length one of a next, gene represented by given allele, is and since each measured numbers of base (one pairs, may copies parent) vary. instance, from two al- two each also For one gene. person may particular leles are inherited for each When have a allele (or given pair “geno- sequence repeats only a which a alleles that constitute core times, differ, ten type”) person is said be “het- whereas that same allele in an- to other person may erozygous” person for that a contain the same VNTR allele. When repeats that parents, 100 times. inherits from the same allele both person “homozygous” is said to approximately There are three million al- that allele. leles on each human DNA ladder. While all polymorphic, of these are alleles some helix, a A DNA molecule is double re- are polymorphic much more than others. sembling a ladder has been twisted Forensic DNA which, utilizes small num- unraveled, approximate- if would be highly ber polymorphic “hypervaria- of ly length. six feet in The “sides” of the ble” sites. composed deoxyri- ladder a chain are of of sugars phosphates, bose while the profile A through DNA arrived at “rungs” composed pair of one of the comparison lengths isolation and of the following (A), nucleotide Adenine bases: highly polymorphic several alleles is known (C), (G), Cytosine (T). and Thymine Guanine fragment length polymor- restriction rule,”

According pair to the “base A can phism (RFLP) analysis.4 profile A DNA only only bond T can with and G bond with constructed means of RFLP analysis is Thus, C. the order of the bases one on side through accomplished following tech- rung will determine the order on the niques. other side. Techniques B. RFLP analysis. Each approxi- DNA molecule contains mately pairs, rungs, 3 billion base biological 1. Extraction DNA. The (99%) vast of which do not differ material contains DNA must ordinari- from being ly one human It separated next. is from the material in which similarity rungs which separated, accounts for it is found. Once the DNA is the human beings. characteristics human samples by extracted from the a chemical Certain DNA sections molecule dif- treatment which An releases the DNA. {i.e., allelic) fer they are enzyme digest individual to is then added to cellular individual, race, group DNA, race ethnic rendering pur- to material other than group. ethnic These sample.5 areas variation are er DNA only analysis sample 4. Because Cellmark utilized subject RFLP is not too small to it to DNA case, all, in this repeat we neither discuss nor consider at also be small too typing process. Repeating DNA based process "polymerase provides amplification” setting opportunity chain in a reaction clinical (PCR) analysis, "allele-spe- better match, otherwise known as insure that a declared match is in fact probe” analysis. subject cific because the clinical scientist can biological multiple analy- material to RFLP Myriad problems extracting Frequently, procedure can arise in sis. possi- such is not due, primari- addition, forensic context. These are ble in the forensic context. foren- ly, samples to the size and nature samples the forensic sic are often contaminated as a result example, scientist works with. exposure For often the environmental crime scene: and, gel placed over the Digestion. The membrane Restriction or action, frag- enzymes capillary the DNA through with restriction then mixed frag- into permanently the DNA molecules attach themselves which “cut” ments sequences. These specific occupying ments base the same the membrane while sequences recognize particular enzymes they to one had position relative another molecule at pairs sever the DNA base time, frag- gel. At same pair along all the three billion base sites awith chemical which ments are treated targeted molecule where length complement by splits from its each base This results in pair sequence occurs. base rung through “sawing” the middle of each fragments vary can numerous pairs separated into so that the base pairs base to several length from few two strands.8 thousand.6 technique A is then 5.Hybridization. Next, the Electrophoresis. 3. Gel poly- employed highly to locate the order by length sorted fragments are DNA morphic fragments alleles contained in the “agarose gel through a known as process typing. DNA which are useful for forensic DNA electrophoresis.” The solutions of nylon mem- by dipping the This is done sources are fragments from the various “genetic in a of various brane solution electrically polarized gel near placed an single-stranded are probes” which negative Because DNA is the electrode. length fragments sequence known charged, fragments the will mi- negatively single-strand- complement to the designed gel. grate positive the end of the towards frag- sequence polymorphic ed base so, however, varying to de- They will do the crime ments from the defendant and length fragment: grees on the of the based samples. probes hybridize scene The lighter fragments, being shorter the contain fragments to which those bulky, will travel faster farther less complementa- are pair sequences base samples are run on the gel. Several probe. ry sequence of the Usu- to the base gel tracks or lanes same but different used ally probes five different are three to run one In addi- parallel to another. multiple genetic The alleles. to isolate sample fragments, frag- tion to the “tagged” radioactive probes are with a sepa- length placed ments of known that, half linkage with the marker so after gel lanes in order to facilitate rate two, split in sequence that was of the core sample fragments. of the At measurement eventually can of those alleles position completion electrophoresis, the DNA is then nylon The membrane be observed. fragments arrayed gel across the ac- excess, probes. to unbound washed remove length.7 cording to frag- usually bind to DNA probe will Southern and Denatur- 4. Transfer lane, in each at one or two locations difficulty working ments Due to the ing. depending the individual on whether agarose gel, fragments are transferred heterozygous was taken is through the whom the DNA to a more functional surface nylon- homozygous for that allele. A or “Southern Transfer” method. thickness, temp- consistency, exposed samples may 7. Variations in or blood have been semen voltage running through the heat, level erature and high humidity, aging, drying, or been to altering gel speed and all to can contribute by degradation bacteria. The contaminated fragments which the move. distance with sample of the DNA can result in contamination location, ap- misleading band size or may result from Southern Difficulties pearance which obscure of nonhuman bands visibility precision and Transfer concern the human ones. transferring may lost as a result of be agarose gel. probes Bubbles on from the

6.Degraded samples complicate also can nylon of DNA block the transfer membrane can procedure. fragment If DNA contami- this a quali- causing "disappear." bands to Poor some nated, may enzymes interpreting to cause restriction ty can make Southern Transfers wrong causing frag- places, Finally, diffi- very cut the DNA the it is often difficult. results lengths "background they distinguish an different than ordinari- noise” from ments cult to ly actual band. would be. Autoradiography. process This en- likelihood that the crime samples scene position of probes, ables the and their from third person came has the who complementary polymorph- profile and now linked suspect. same as the fragments, ic recorded. This is done signif- order to calculate by placing an nylon x-ray membrane on match, icance of a Cellmark calculates how exposed by energy film produced frequently by each band one radioactively probes. tagged This results probe target population. is found in the pattern of bands called autoradio- population That is determined the race “DNA graph, print” also known as a by taking of the This is defendant. done “autorad,” and is said to a bar resemble categorizing each according band and many grocery code such those found specific range pair lengths— of base represents products. store Each band determining called a bin —and how often position polymorphic different allele and its appear target within bands that bin in the length fragment indicates population. frequency with which which that allele occurs. Because the appears band pop- African-American length among of alleles differ individ- ulation was determined Cellmark uals, position the bands on the auto- profiling samples blood obtained from person per- rad will tend to differ from Detroit Red Cross and were based on anal- son. ysis samples, of between and 296 de- Interpretation. Next, the locations pending particular genetic probe on the of the alleles on the autorad are examined used. to determine whether or not both DNA First, frequency of each allele is cal- samples person. came from the same This culated, frequency and then the for each comparison through can done either a genotype by is calculated. This is done inspection or a visual with machine that multiplying frequency each of through process measures a bands comprise two alleles which genotype computer imaging, both. In order to one another.10 This assumes that there is match, however, declare a the bands need no statistical correlation between those two up exactly. Rather, not line a match will alleles. absence of such a correlation if be declared the bands fall a within cer- “Hardy-Weinberg equilib- is referred to as tain distance of one another. The Federal Next, rium.” the frequency for the com- Investigations, Bureau of example, will plete genotype multilocus is calculated length frag- declare a match if the of two multiplying genotype frequency all 2.59 n > plus

ments fall within or minus of one Again, the loci one another. this as- pairs. another in base Cellmark will de- sumes that there is correlation no between clare a match if the length frag- of two genotypes at the individual loci. The ab- ments fall within 1 millimeter of one anoth- sence such a correlation referred to er. The smaller the allowable measure of “linkage equilibrium.” window,” deviation “match the less chance there is that a match can be de- III. STANDARD OF ADMISSIBILITY clared.9 States, In Frye v. United F. 1013 Analysis.

C. Statistical (D.C.Cir.1923), the court declined to admit declared, Once a match has been its systolic pressure sta- the results of a blood significance tistical deception test, predecessor must determined. an early usually expressed This is test, contemporary terms designed “lie-detector” surrounding interpretation 9. Problems by applying Such calculation is done acceptable the autorads include the measure of "product rule"—a standard mathematical calcu- deviation band match that should be allowed lation used to determine the likelihood of find- match, declaring subjective before the level of ing statistically independent a number of varia- evaluation that interpretation, inheres in this present bles at the time. same expertise and the level of analyst skill and of the who the interpreting. does ...; (2) community scientific ensures telling the if the defendant to show experts reserve of exist that “a minimal court stated: truth. validity critically examine the who can principle or discov- Just when a scientific a particular a scientific determination experi- ery line between crosses the case,” ...; (3) spares courts from the stages is diffi- and demonstrable mental of re- time-consuming and difficult task twi- define. Somewhere cult to assessing validity of innova- peatedly prin- force of the light zone the evidential techniques, ...; recognized, and while tive scientific ciple must be admitting degree uniformity way “promote[s] go long will expert testimony deduced from well- decisions.” principle or discov- recognized scientific (citations A.2d at 489 Vandebogart, 616 ery, thing from the deduction omitted). established sufficiently must be made applicable stan- adopted Frye We gained general acceptance in the to have determining dard belongs. particular field which People evidence in novel scientific requiring general ac By Id. at 1014. Anderson, (Colo.1981). 637 P.2d 354 We evidence within ceptance of novel scientific People adherence to reiterated our community,

the relevant (Colo.1987),and Hampton, 746 P.2d 947 sought reliable court to ensure Campbell People, 814 P.2d 1 again evidence was admitted. See United States (Colo.1991). Though Campbell Hamp- Cir.), (2d Jakobetz, 955 F.2d applicability reaffirmed the ton — denied, U.S. -, 113 S.Ct. cert. evidence, Frye was to novel scientific (1992). Although 121 L.Ed.2d 63 applied in either of cases because those criticized, generally, Paul been see has did sought to be admitted the evidence Giannelli, Admissibility Novel C. of application of within the traditional fall States, Frye v. Evidence: United Scientific in Consequently, the evidence both Later, 80 Half-Century Colum.L.Rev. analyzed un- Campbell Hampton was (1980) (hereinafter, “Frye a Half- 702.11 der CRE Later”), number of Century it has a majority the rule strengths, and remains held 702 was the Hampton, In we CRE determining admissibility determining the of novel for the admis- proper standard for Jakobetz, syndrome evidence. 955 F.2d evi- sibility rape scientific See trauma of (describing as the Frye noting at 794 the concerned that evidence dence rule); general- N.H. Vandebogart, rape only reactions of victims “the (1992) (“Most expert’s] testimony 616 A.2d 488-89 courts con- ly; none of [the admissibility expert] the of particular that have considered victim. cerned [The victim_” adopted have the the novel scientific evidence contact not interview or did observed, Therefore, test.”). As court has we Frye one at 951. Hampton, 746 P.2d Frye, Frye test rather than that CRE concluded governing the concerning proper standard permits disputes scientific was admissibility of this evidence.13 validity to resolved the relevant suggest 13.Nothing Hampton meant to 702 is identical to 11. of Evidence Colorado Rule provides: longer applicable Frye 702 and to novel Fed.R.Evid. test is no that technical, scientific, specialized opinions If knowledge or other this court and no of scientific evidence 1; fact un- will assist the trier of Campbell, P.2d suggest. generally See so or to determine a fact derstand the evidence Furman, Scienti- The Introduction H. Patrick issue, expert by qualified as an witness Cases, The Colorado in Criminal Evidence fic skill, knowledge, experience, training, edu- 1993, (“The Lawyer February in Colo- rule cation, testify form an thereto rado, People Hampton, is forth in set opinion or otherwise. applied Frye 'to novel scientific should be recurring Rape syndrome involving manipu- processes involves a 12. trauma devices and commonly pattern that is evidence.'"). of emotional distress physical lation of among rape paradigmatic found victims is example post-traumatic stress disorder. Hampton, 746 P.2d 949-52. Campbell Similarly, including tests, experi- declined to deuce lie we detector Frye assessing standard in apply systems of typing, mental blood voice admissibility concerning of evidence the re- prints, identification of human bite and, liability eyewitness identification marks, microscopic analysis gun instead, 702, again noting that applied CRE shot residue. Frye application the traditional did Hampton, also See P.2d 950-51. Campbell, encompass this evidence. Campbell, (recognizing 814 P.2d at 8 Frye (“[T]he at 8 general standard of application Frye). same traditional acceptance particular within a scientific typing requires highly a number of special employed field has been as a foun- and sophisticated techniques technical requirement de- dational for novel scientific extract, isolate, order and observe alleles processes involving vices the evaluation contained human DNA molecules. Here, however, physical evidence.... Moreover, potential because the of DNA deal we with no such scientific device or typing technology purposes forensic process.”). mid-1980’s, recognized in was first first evidence, contrast, typing is 1980’s, applied in the late tech- and involves precisely sort of scientific evidence niques continuously evolving, which are requires application typing “novel” process. Porter, test.14 See United States v. short, is, in the words of (D.C.App.1992) (admissibility A.2d Campbell Hampton courts, “presents of DNA very evidence kind process[ involving “novel scientific ... ] language issue which the Id. of physical evaluation evidence.” address”). designed to example, For Hampton we noted that appropriate That standard for determining admissibility

[generally, typ- of DNA applied ing seriously disputed novel scientific in- evidence is processes devices and volving manipulation physical parties They disagree, evi- here.15 howev- requires appli Though acknowledge Whether DNA evidence we some usually question. cation of the See, test is not in assess the of all novel scientific e.g., People Barney, Cal.App.4th under their rules of Cal.Rptr.2d (1992); Pennell, adopting State v. find the bases for such an (Del.1989) (applying Frye First, simply A.2d 513 standard); applicable "relaxed” are not in Colorado. Porter, jurisdictions United States v. Frye 618 A.2d 629 most which do not adhere to (D.C.App.1992); State, grounds Andrews v. adoption 533 So.2d 841 do so on the that the of analo- (Fla.App.1988); Curnin, gous provisions v. Commonwealth 409 to Federal of Rules Evi- 218, (1991); Mass. superseded gener- 565 N.E.2d 440 v. dence Frye State have test. See Schwartz, (Minn.1989); Mueller, ally Christopher 447 N.W.2d 422 v. W. & State David Louisell B. 365, Vandebogart, (1992); (1977). 136 N.H. 616 argu- A.2d 483 Federal Evidence 105 § Such an Castro, 956, People any v. 144 might Misc.2d 545 N.Y.S.2d ment is devoid of merit it otherwise (Sup.Ct.1989); Pennington, 985 v. State N.C. 327 have in Colorado because 702 CRE became ef- 89, (1990); Pierce, 1980, 393 January S.E.2d 847 v. State fective in of whereas this court 490, (1990); Anderson, Ohio St.3d adopted N.E.2d 107 v. Frye State first test in decided Ford, 485, (1990); Thus, 301 S.C. S.E.2d State in November 1981. it would strain rea- Wimberly, (S.D.1991); v. suggest N.W.2d 499 preempt Frye Glover son to that rule 702 could State, Colorado, aff’d, (Tex.App.1990), 787 S.W.2d light preced- of the fact that 702 (Tex.Crim.App.1992); Second, S.W.2d Spencer adoption Frye 825 Commonwealth, ed ques- of the test. it is 78, 240 Va. S.E.2d 609 tionable whether the Federal Rules of Evidence (1990) 702); (applying Frye both and supersede Frye State v. were even intended in those Woodall, 15, W.Va. jurisdictions 385 S.E.2d 253 prior adop- where it was in force (Colo. People Lindsey, But see No. 90CA0556 tion of the Rules. 7, 1993), App. pending Frye Jan. (applying cert. argue Frye Those who that the test survived questioning application but its to DNA the enactment of the Federal Rules have some evidence). support legislative history. Because the fact, among jurisdictions those which have Federal Rules intended to be com- , adopted test, Frye prehensive report- we aware of no codification of the of rules evi- dence, ed admissibility cases evidentiary in which the of DNA a number rules covered, analyzed others, mentioned, though evidence was not many under that and test. only general are treated ain fashion. There- though techniques implement- is er, Frye to be even on formulation what ing highly suspect it are or controversial. disagreement apparently This applied. result, incongruous is avoid such and there some To the fact arises from help only it insure that reliable evidence be among whether is dispute courts admitted, techniques Frye, hold that under underlying theory or the both, admissibility or of novel scientific evidence re- produce novel scientific showing (1) general acceptance Frye. See quires that are relevant under 1211-15; Later, supra, community at Half-Century in the relevant Ford, theory gen- & Simon Thompson underlying principle, or and William C. Weight Acceptance acceptance and Typing: the relevant scientific eral Tests, 75 Va. community techniques apply New Genetic used to Identification (1989) (hereinafter “DNA L.Rev. principle. theory or Acceptance Weight and Typing: underlying We now consider whether the Tests”). New Genetic Identification techniques typ- in DNA theory and utilized generally accepted the time of ing were at prior opinions of this court time Our focuses at trial. theory clearly and tech indicate both at this evidence was offered trial niques underlying novel scientific evidence prove Frye, party under need not because accepted Frye. under generally must be validity techniques used the absolute we concluded example, For Anderson novel scientific evidence be- theory producing technique that “the scientific exacting can Such an sufficiently advanced fore it be admitted. polygraph is [not] necessarily based on competent requirement would permit its at trial as use Anderson, speculation for it would re- credibility.” conjecture and evidence opinions to venture their Similarly, Campbell quire witnesses P.2d at 359. both events, regarding theories discoveries that the Hampton we observed riot, may, may future. dr arise in the traditionally applied to “novel which test has been ” Rather, if scientific mandates processes.... scientific devices 8; accepted it generally at time Hampton, at 746 evidence Campbell, 814 P.2d offered, Frye re- it is admissible. then P.2d at 950-51. Numerous nothing Consequently, more.16 requirement quires apply two-pronged this same appellate reviewing court See, the task of an e.g., under v. Vandebo State nov- determination to assess whether 616 A.2d 489-90 gart, 136 N.H. generally accept- (1992)(holding el scientific evidence was applies both scientific communities theory process of sci ed in relevant underlying novel into offered observing that this is the time it was entific evidence and hearing in this case rule); Ford, evidentiary general 301 S.C. trial. (1990) (same). typing’s of DNA A on the issue 392 S.E.2d in October of requiring acceptance one conducted standard therefore, general accep- illogical ad our assessment or the other could lead to that by is reference theory un tance determined mission of evidence because generally accepted is time.17 derlying that evidence ” fore, community.’ Barney, argued attitude of the scientific can be that because was Cal.Rptr.2d Kelly, (quoting People v. at 737 repudi- and no statement established rule Cal.Rptr. P.2d 1240 history, Cal.3d Frye appears legislative ating in the (1976)). general acceptance standard remains in- tact. body of from other A review of a vast cases Later, Frye Half-Century supra, at 1229-30 reviewing Frye on jurisdictions determinations (citations omitted). virtually of appeal no discussion reveals pre- Consequently, decline overrule the appellate point court is to in time at which an adopting Frye as the for cedent of this court thereof, existence, gen- lack of determine determining the of novel scientific acceptance. this be eral The reason for evidence. cases, community’s in most that course, technique vary previ- regard particular

16. Of if the evidence will "[e]ven for appellate ously correctly gener- to the time of determined to have been the time of trial however, not, ally may subsequently case accepted, the be is with converse review. This significant changes 'reflecting change typing evidence where shown DNA State, IV. ANALYSIS 260 Ga. LEGAL S.E.2d (1990) (observing that there is “no real sci There are a number of relevant dispute” acceptance concerning the of DNA purposes entific communities techniques analysis involved RFLP but typing. The fields molecular and human rather, “dispute tech- centers genetics largely responsible are for the the niques procedures (or and fol- followed ory underlying typing. The fields of lowed) case”). ... this The concerns biochemistry biology, molecular and their expressed in legal the scientific litera- and disciplines largely responsible are related ture, jurisdic- as as from other well cases disciplines pop analysis. for RFLP tions, (1) essentially center on two issues: genetics, genetics, human de ulation and techniques employed whether the in RFLP mographics responsible determining are analysis can transferred the area significance a declared the statistical forensics; (2) techniques and whether these match. properly performed particular in a Typing: Acceptance case. DNA Underlying Theory. A. Weight the New Genetic Identification question theory underly- There is no Tests, (noting supra, at 63-76 that all the ing generally accepted techniques comprise basic RFLP anal- among the relevant scientific communities. ysis are generally accepted in the relevant As one commentator has “There observed: only scientific communities and that nothing theory controversial about the potential dispute areas of under Indeed, underlying typing. the theo- (1) application techniques those accuracy ry accepted is so well that its proper performance forensics and unlikely even to raised as issue techniques cases). those in individual hearings admissibility of on the the new exemplified These concerns were [A]mong scientists, informed tests.... present case. Here the defendant dissenting points totally of view are almost challenged implementation and execu- Typing: Acceptance absent.” DNA techniques Cellmark; tion of these Weight the New Genetic Identification techniques soundness those the ab- Tests, supra, at 60-61. No evidence was general acceptance prop- stract and their if presented evidentiary hearing at the which erly performed questioned. were never any conclusion, casts doubt on and we This fact is consistent the observation authority are aware of no which contra- dispute that no serious exists to whether Thus, dicts theory it. we hold that analysis the techniques involved in RFLP underlying was generally ac- generally accepted. See Andrews v. cepted relevant scientific communi- State, (Fla.1988) (observ- 533 So.2d ties at time of trial. ing sequencing comparison that DNA testing scientifically accepted has been Techniques B. RFLP Analysis. reliable and has used been laboratories The techniques of RFLP analysis study, diagnosis, worldwide —DNA extraction, digestion, gel electrophoresis, treatment of inherited diseases for well denaturing, Southern transfer and hybridi- decade); Schwartz, over a State v. zation, autoradiography, interpre- (“It and the (Minn.1989) N.W.2d is undis- tation of the ac- generally puted autorads —were RFLP per- routinely cepted techniques. See, e.g., generally v. accepted Caldwell formed and for research regard typing legal law, for DNA evidence have literature as aswell current case men- opinion occurred between the time this tion the at time which the initial determi- authored Therefore, and the time this evidence was admit- nation was made. we are unable to pp. ted at trial. See 894-895. appellate determine the at time which other infra Reviewing opinions addressing question general acceptance. recent courts assess the Nevertheless, the ad- missibility however, that, typing of DNA it is our conclusion above, also temporal reveals no consideration of the reasons stated such a determination Moreover, issue noted above. none of those should be assessed from the time at which evi- cases, relying up-to-date while and dence is offered at trial.

893 particular in a case is not adhered to many scien- were diagnostic purposes within and v. Frye); People a relevant factor under disciplines.”). tific 990, 22, Mohit, 153 Misc.2d 579 N.Y.S.2d the areas opinion We are of (adher Ct.1992) (Westchester County analysis go regarding RFLP of concern accepted technique goes generally ence to admissibility, weight, not the and weight, admissibility, of not evi to the not Frye. As typing under evidence dence). above, techniques employed ed accepted in generally are analysis Thus, RFLP underlying we hold both Those the relevant scientific communities. theory typing as the tech- of DNA as well ap vary they techniques not are do when niques employed in RFLP context of forensic science. plied (and remain) rele- generally accepted Rather, employed are techniques identical Therefore, tri- vant scientific communities. which, samples, when used with forensic future, judicial in the take may, al courts generally nonexis raise concerns that are acceptance general notice their laboratory. supra in the See tent clinical is- relitigation the need for these avoid observed, has As one court notes 5-10. sues. for a “analysis has utilized RFLP been diagnostic settings. years number Analysis. C. Statistical Because focus is different than step final in DNA for forensic may diagnostic setting, problems exist the method purposes involves unique forensic DNA tests.... are calculate Cellmark and other laboratories however, relia problems, concern the Such probability of a random match between in a bility particular performed tests profile from the crime the DNA derived Ford, particular case.” 301 S.C. profile from the sus- scene and the derived 781, 485, (1990). 392 S.E.2d See State techniques em- pect.18 We hold that the 365, 136 N.H. 616 A.2d Vandebogart, the statisti- ployed this case calculate such, concerns, 483, As those were, frequency match cal of a declared them, weight to be accorded at date was admitted this evidence properly jury left determination. trial, sci- generally accepted in the relevant Similarly, arise the concerns that entific communities. implementation gen- these otherwise that the testi- holding In so we note first erally accepted techniques are not relevant uncontradicted, mony of Dr. Forman was Frye analysis. factors under a Those con- established that method go performance of proper cerns frequen- calculated statistical Cellmark analysis techniques, RFLP whether generally in this case were reliable cies techniques generally those themselves communi- such, accepted the relevant scientific accepted. they go only to the As cross-examination, at- On defendant ties. weight such evidence. be accorded tempted to with refer- Porter, A.2d rebut United States questioned single (D.C.App.1992); ence to article which Vandebogart, 616 A.2d frequencies. (whether validity generally accepted techniques these statistical ("we permit general acceptance step N.E.2d 443 n. would not 18. of this final showing critical of DNA evi for the test results a DNA the admission of match, unaccompa (a result) telling dence because declared jury positive match without significance, essentially nied meaningless. its statistical anything the likelihood that match about Cal.Rptr.2d Barney, See at 742 ("evi- occurring”); Vandebogart, 616 A.2d ("The step pivotal statistical calculation if it is dence of match will not be admissible analysis, for the evidence element of DNA frequency accompanied by population es- nothing without means a determination of generally produced timate that been has significance pat statistical terns.”); of a match Cauthron, method”); accepted State v. Lanigan, 413 Mass. Commonwealth (1993) (DNA Wash.2d 846 P.2d ("Because 596 N.E.2d unaccompanied by signifi- evidence inadmissible, frequency estimates are therefore, helpful cance not to trier of fact profiles of a between is also match inadmissi inadmissible). 218, ble.”); Curnin, v. 409 Mass. Commonwealth 894 Lander, Fingerprinting accompanied by frequen- Eric S. DNA dence statistical

See Nature, 15, Trial, June 1989 at 501. cies at in 339 arrived the manner here was testified, however, generally accepted Dr. Forman her in the relevant scientific opinion, expressed by community Lander at the concerns time was offered at were, Therefore, adequately had been addressed and trial. we conclude this evi- therefore, longer properly no valid. dence was admitted under addition, holding, publish-

In the vast of In so we are mindful that consid opinions emerged at of ed which existed the time erable debate has in the three frequencies years concerning trial reveal that the statistical since the trial this case accompany acceptability frequen declared match were of the statistical accepted generally in the rele- accompany considered cies which match of declared Indeed, profiles. Technology vant scientific communities. DNA See DNA only published opinions 9-15, (“[substan are aware of we Forensic Science 74-96 typing controversy” that held regarding DNA evidence inadmissi- tial the cur exists under Frye estimating ble did not do so on the basis of frequency) rent method allele (hereinafter ”); frequencies the statistical which ac- Report Richard “NRC C. company gener- Hartl, declared match Lewontin Daniel Population & L. See, ally accepted. e.g., United v. Typing, States in Forensic DNA Sci Genetics Castro, 956, ence, 20, 1745; 1991, 545 Ranajit Misc.2d N.Y.S.2d 985 Dec. Chak- at (Sup.Ct.1989) (DNA Kidd, typing raborty evidence inad- Utility & Kenneth K. The laboratory Work, Science, missible due to failure Typing DNA in Forensic comply generally accepted tech- Dec. 1991 at 1735. This has debate Schwartz, niques); State v. 447 N.W.2d manifested itself in a number forums.19 (Minn.1989) (same). Finally, addition, we numerous courts which háve are aware study recently the one scientific question considered the have questioned referred to at trial that ac- frequencies found these statistical lack ceptability frequencies of these statistical general acceptance in the relevant scientific is, single October of 1989. This source People communities. See v. 8 Cal. Barney, course, adequate App.4th 798, (1992); basis 10 Cal.Rptr.2d 731 general acceptance Porter, to find a lack of v. 618 A.2d United States relevant community. (D.C.App.1992); People Conse- v. Atoigue, DCA quently, that, given 91-95A, CF0023-91, acceptance hold No. CR S.C. No. (D.Guam and the App.Div. Sept. 11, relative absence of WL 245628 dissenting points view, 1992); evi- Lanigan, Commonwealth v. 19. The dispute mindful, however, centers around issue of ran- We are also that this dis may mating categories pute essentially dom be rendered if within broad racial moot alter calculating frequency native methods allele which form the bases of the statistical from generally one used here are determined Jbe typing. argue The critics that such accepted. Report See NRC 82- mating random does not exist and that ab- (proposing "ceiling principle” which would mating sence random within these broad adequately possibility popula account for the (which categories population racial results in substructuring providing tion still while ex substructure) multiplication renders the current tremely powerful suspect’s evidence of a identi requirements method invalid because the of sta- ty). 798, People Barney, Cal.App.4th See also independence (Hardy- tistical within locus (1992) (DNA Cal.Rptr.2d evi Weinberg equilibrium), indepen- and statistical accompanied by frequencies dence (linkage equilibrium) dence across loci are not according ceiling likely principle calculated using met. conclusion is that the current admissible); Porter, United States 618 A.2d method, multiplication probability of a ran- (same); (D.C.App.1992) Atoigue, People may dom match be in error two or more 91-95A, CF0023-91, DCA No. No. CR S.C. (¿a, 830,000,000 magnitude orders 1 in (D.Guam 11, 1992) App.Div. Sept. WL 245628 actually 8,300,000.) Report be 1 in NRC at 10- (same); Lanigan, Commonwealth v. 413 Mass. 12; Hartl, Richard C. Lewontin & Daniel L. (1992) (same); 596 N.E.2d 311 State v. Population ence, Typing, Genetics in Forensic Sci- Vandebogart, 136 N.H. A.2d 483 20, 1991; Ranajit Chakraborty Dec. — & (same); 12,899, Anderson, No. N.M. Kidd, — - Utility Kenneth Typing -, K. (same); (App.1992) Cau Work, Science, thron, Forensic (same). Dec. 846 P.2d

895 frequency 154, (1992); the statistical of declared 311 State v. N.E.2d Mass. 596 generally accepted. match remains 365, A.2d N.H. 616 483 Vandebogart, 136 433, Anderson, N.M. (1992); 175 v. State The of of judgment appeals the court (N.M.App.1992); State v. P.2d 135 853 affirmed. 879, 502, Cauthron, P.2d 846 120 Wash.2d v. MULLARKEY, J., Cur Commonwealth 516 concurs the result. Cf. 218, 440 nin, 565 N.E.2d 409 Mass. concurring in the Justice MULLARKEY (DNA inadmissible as there no evidence result: probabili general acceptance statistical case, majority affirms the ties); People Wardell, Ill.App.3d 230 v. allowing appeals the court of decision of N.E.2d 1148 172 Ill.Dec. 595 DNA testimony identification based on (affirming court’s find (Ill.App.1992) trial that, testing. determines general acceptance typ DNA ing of no trial, the time of the DNA results review). ing on abuse of discretion Still such results admission of courts have allowed the other generally accepted by the scientific commu- typing prohibiting or DNA while evidence nity thereby admissible under the regard limiting the admission evidence States, 293 F. 1013 v. United significance of a declared ing the statistical (D.C.Cir.1923). I affirm un- Because would Pennell, A.2d match. See State I reject Frye, der 702 and concur CRE State, (Del.Super.Ct.1989); only. Caldwell v. the result (1990); State v. Ga. S.E.2d defendant, Fishback, Jeffrey Schwartz, (Minn.1989); 447 N.W.2d 422 degree in 1989 first sexual convicted State, (Wyo.1992).

Rivera v. assault, degree burglary, man- second Commonwealth, 846 S.W.2d Harris v. datory crime. Part of the sentence violent Cf. (trial (Ky.1992) court’s admission against in the trial Fishback evidence used testing DNA not an abuse of discre anal- evidence consisted of the and statistical compared DNA ysis of his tion, blood refusing but conclusive “embrace samples semen which were derived from evidence).20 ly” indi- taken the victim.1 These tests from trial We leave to the initial found the defen- cated that the alleles whether, light of events determination of dant’s matched those found subsequent significance have occurred tri- samples. The statistical expressed in terms of the case, calculating that match was al in this the method for however, courts, underlying sampling theo- statistics and the] ry 20. Other have held controversial"). not novel or are be admissible under since the Jobe, above. State v. recent events noted See (DNA) Deoxyribonucleic determines acid (Minn.1992) (no challenge N.W.2d things. Every genetic makeup living hu- of all calculating signifi the method of the statistical DNA, contained in the nucle- man has which is match); Myers, cance of declared State No. her The DNA is divided us of his or cells. 03-C-019108CR00255, (Tenn. 1992 WL 297626 chromosomes, among forty-six half of which 22, 1992) Crim.App. (refusing to Oct. consider constituting parent, from inherited each report any the NRC other information not twenty-three pairs. Each chromosome is com- holding, presented to the trial court and based posed genes, pair of a of thousands of each witness, prosecution on the of one genes. Al- of chromosomes contains the same 50,000 probability that the statistical of 1 in variations, polymorphisms, of a leles are the admissible). State, Perry also See So.2d haircolor, given gene gene, i.e. for the (statistical frequencies (Ala.Crim.App.1992) allele be for brown or black or blond pre-1992 case law admissible based on pattern- coloring, determined different DNA jurisdictions, without mention more individual, ing. having Thus each received decisions, report, recent court NRC or the par- pair half of chromosomes from each Montalbo, articles); ent, Science 73 Haw. gene. Some of has two alleles for the same (1992) (finding 828 P.2d “little composi- polymorphic these alleles more others, theory underlying testing targets basis for concern over the tion these than and DNA concluding "hypervariable” maj. op. at [and statistical evidence.... alleles. See 885-886. by probability by admissibility the match occurred to assess the of nov- that which principles. chance, is, el scientific The court stated: the likelihood that someone that would match the other than the defendant principle Just when a scientific or discov- samples. According to ery experi- DNA found in the crosses the line between the stages probability or likelihood mental and demonstrable is diffi- testimony, to define. cult Somewhere this twi- 830,000,000. was 1 in The defendant light zone prin- the evidential force of the suppress this and the moved to recognized, ciple must be and while evidentiary hear- trial court conducted long go way admitting will a courts admissibility. ing as to its expert testimony deduced a well- hearing, expert At two witnesses recognized principle scientific or discov- prosecution. by One was offered thing ery, the from which the deduction Setzer, Dr. William director of Uni- sufficiently is made must be established versity of Health Sciences Center Colorado gained general acceptance to have in the Laboratory, Diagnostic who was particular belongs. field in it which qualified expert biology, as an molecular 293 F. at Frye, 1014. Thus novel scienti testing genetics. and the field of He principle fic is held to be inadmissible un laboratory procedures testified as to enjoys general acceptance among it less used to match the defendant’s blood community. the scientific This has view samples. The other that of the semen by past been followed was Dr. Lisa Forman Cellmark Labora- jurisdictions, which notes that Frye ad tories, facility conducted dresses certain concerns such as the relia tests, qualified expert who was as an in bility proffered data, scientific population genetics population biology. availability experts, uniformity and the primarily Her related data concerning of decision admissibility analysis. base statistical used for the types See, e.g., certain of evidence. United testimony of both witnesses was essential- Addison, (D.C.Cir. 498 F.2d 741 States ly undisputed defendant, who did 1974); People Kelly, 17 Cal.3d put any witnesses of his own. The Cal.Rptr. credible, court found these witnesses to be later, seventy years however, we Now prosecution and allowed the to enter the acknowledge Frye, although should DNA test results inquiry argu- have served this area of into evidence under both the test and Frye ably past, well in the does not deal ade- CRE 702. quately with the issue principles of novel scientific as such evi- The trial court’s reliance on both tests today. comes trial dence before was due to confusion as to which test premised assumption on the apply should appar- to DNA evidence. isIt principle discovery once scientific be- ent that the has time come for court to “generally accepted” in the comes relevant set clearly forth the standard field, it accepted. forever remains novel scientific evidence should as- Hence, particular once a form of evidence sessed. In the logic prac- interests of test, passed has it need not be ticality, I believe CRE 702 is the more again. tested This case shows that persuasive viable and test. In order to premise necessarily is not true and explain conclusion, why I reach this it is application does not achieve the necessary to examine Frye first and its stability decision-making that it is meant present ramifications in case. accomplish. According majority, to the In Frye, a district federal court contem- emerged has “considerable debate plating procedure systolic the new of a years three since the trial in this case con- pressure (i.e., blood deception cerning lie acceptability of the statistical test) detector precepts accompany set forth certain frequencies which a declared analysis. precepts profiles.” Maj. op. These since have be- of DNA match at 894. come as the primary opinion established standard The leaves to future cases the de- As stated Professors Weinstein and Ber- DNA statistical evi- termination of whether rule, ger in “Rule reference federal generally accepted.” Maj. dence “remains incorporate general scien- 702’s failure to provides longer cer- op. at 895. no standard, acceptance Advisory tific decision-making. ease of tainty or Note’s failure to even mention Committee problems in- are other serious There signifi- Frye must the case be considered application Frye such as in the volved Margaret A. cant.” Jack B. Weinstein & characterizing in ev- inconsistencies courts’ ¶ Berger, Evidence Weinstein’s 702[03] “scientific,” difficulty in identify- as idence (1992). It been that the has also stated field, and ing relevant ambi- the scientific Rule Frye standard “seems odds with “general ac- guity as to what constitutes “[ejvidence yet 702” since which is not ac- Imwinkelried, A ceptance.” See Edward J. cepted community may still the scientific the New Era in Evolution of Scientific helpful, accept be and continued refusal to Evaluating Primer on the Evidence—A this testimony qualified expert the of a Evidence, 23 Wm. & Weight Scientific supported by any reason alone cannot 261, (1981); Paul C. Mary L.Rev. 264-265 provision Rules.” W. other in the 3 David Giannelli, Admissibility Novel Sci- Mueller, B. Christopher Louisell & Federal States, Frye Evidence: v. United entific (1979). Although at 644 Evidence § Later, 80 Half-Century Colum.L.Rev. contrary, I there some voices (1980). My primary dissatisfaction Frye likewise that has its via- believe lost however, unduly Frye, is its restric- with 702, bility implementation since the of CRE evidence, tive treatment of hovel scientific directly which refers scientific evidence excluding testimony may strong have that any previous thus pre-empts standards community support within but not be testimony which scientific was accepted,” “generally situation weighed.2 And as Potter Stewart here. Justice stat- Furthermore, I do not believe that ed, “any impedes discovery rule that rule in our Frye has become established impedes in a court of truth law well all testi state to the extent that scientific doing justice.” Hawkins United mony its stan must be examined under 136, 140, States, 358 U.S. 79 S.Ct. applied Frye It that we dard. is true (1958) (concurring). L.Ed.2d Anderson, P.2d 354 People mind, my the treatment of novel sci- To (Colo.1981). distinguishable, This case is principles only entific is not better ad- however, issue it grounds that the pre-empted by relevancy dressed but poly admissibility of addressed was the mandated CRE determination graph test into evidence—the identi results analogous is identical to the federal It cal issue was addressed rule of evidence. Enacted Colorado standard Frye has been noted that rule this reads as follows: applied consistently only cases “was scientific, technical, admissibility of re polygraph special- If or other McCormick, knowledge Mark Sci ized will assist the trier of sults at issue.” Defining Ap New the evidence fact understand or to Evidence: entific issue, Admissibility, 67 Iowa L.Rev. quali- proach a fact in a witness determine skill, 879, (1982)(cited Strong, expert by knowledge, in John W. fied as an ed., education, at 869 training, may on Evidence experience, McCormick § decision, (1992)). discussed testify opinion thereto in the form of an n. 6 In our polygraph context of Frye solely or otherwise. cals, Inc., 92-102, argued At Mar. 2. Further evidence of the conflict between the No. trial, test and the Rules of Evidence Rules of district court utilized the Supreme in the fact the United States found determining Evidence in recently argument as Court standard heard oral sufficiently into evi reliable admission applied determining to be when (S.D.Cal.1989). F.Supp. dence. 727 concerning of scientific test results ruling trial court was affirmed under allegedly drug defects caused birth Ben (9th Cir.1991). test. F.2d 1128 Dow dectin. Daubert v. Merrill Pharmaceuti evidence, evidence, and we referred to it in admit scientific like other evi- never dence, striking as a requires terms of scientific evidence whole. At of a balance jurisdiction adopted has probative least one between the of the evi- worth polygraph as to but capacity preju- dence and its to confuse or has chosen to utilize Rules of Evidence jury.”). dice the as to all other scientific evidence. Many agreed federal courts have Walstad, 119 Wis.2d N.W.2d 469 position, rejecting rule in relevancy balancing proba- favor of a test, of whom Critics of there against prejudice tiveness in cases involv increasing in many and who are num- ing principles tests and other than ber, relevancy found a have determination See, e.g., United concerning those DNA. efficient, more appropriate to be far and Cir.1978), Williams, (2d States v. 583 F.2d 1194 Frye addressing concerns of without its denied, 1117, rt. 439 99 S.Ct. U.S. ce problems application. Professor Charles 1025, (court (1979) applied 59 L.Ed.2d 77 Frye McCormick has said of the standard test); v. Kelly, United States balancing that: (2d Cir.1969) 420 (probity gov F.2d 26 acceptance” prop- “General scientific is a expert by ernment’s evidence as attacked taking judicial er condition for notice of question jury); Unit typical defense is for facts, scientific but not criterion a for the ed (3rd Downing, States v. F.2d 1224 753 admissibility of scientific evidence. Any Cir.1985) (Frye standard neither neces supported relevant conclusions sary question nor sufficient for admissibili expert qualified witness should be ty; general acceptance single factor in unless received there are reasons reliability inquiry); United States broader for exclusion ... If courts used this Baller, v. (4th Cir.1975), cert. F.2d 519 463 approach, repeating instead sup- denied, 1019, 456, U.S. S.Ct. 423 96 46 posed requirement “general accep- (1975) (court found, light L.Ed.2d 391 imposed, they tance” elsewhere test, balancing dangers of new scientific practical way would arrive at a of utiliz- adequately guarded against); ing results of scientific advances. (6th Stifel, United v. States 433 F.2d 431 ed., 1 Strong, McCormick Evidence Cir.1970), denied, cert. 994, 401 U.S. 91 203 at 874-75. Other commentators § (it 1232, (1971) S.Ct. 28 L.Ed.2d 531 is bet See, e.g., 1 ter to admit relevant scientific evidence and agreed position. have with this Christopher David W. Louisell & B. Muel weight allow its be attacked cross- ler, Federal Evidence (1977); 105 at 818 § refutation); United examination and see also M. McCormick, Evi Scientific Piccinonna, States v. (11th 885 F.2d 1529 Defining Approach dence: a New to Ad Cir.1989) (new required technology flexibili missibility, (“Proce 67 Iowa L.Rev. at 916 ty United States v. legal system); within operate dures that within the framework of Sample, F.Supp. (E.D.Pa.1974) 378 44 general relevancy expert (Frye precluded too much relevant evi meaningful rules offer more and effec dence). Frye ].”); tive alternative E.J. Imwink- [to State also have demonstrated dis elried, A New Era in the Evolution of See, e.g., Whalen enchantment with Evidence—A Primer on Evalu Scientific State, v. (Del.1980), A.2d 1346 ating Weight Evidence, cert. 434 of Scientific denied, 910, 1258, U.S. Mary 23 455 102 S.Ct. Wm. & 71 (“[W]e L.Rev. at 263-64 (1982) entering (general acceptance L.Ed.2d 449 stage now new the evolu indispensible tion of scientific criterion stage admissibility); evidence —a for that will State, Coppolino v. questions be dominated weight (Fla.App. 223 68 So.2d 1969), appeal dismissed, scientific evidence rather than 234 admissibili So.2d 120 Questions ty.”); denied, John cert. Strong, (Fla.1969), W. Affecting 927, 399 U.S. 90 Admissibility Evidence, 2242, (1970) S.Ct. 26 (appellate L.Ed.2d 794 of Scientific 1, (1970) (“[I]t U.Ill.L.Forum court deferred to trial court’s wide discre suggested that ultimately determination); decision tion in admissibility State Hall, (Iowa 1980), regard to but then declined cert. such v. N.W.2d 80 apply denied, 927, 1384, held that the evidence 101 S.Ct. 67 to 450 U.S. rejected Frye); (court Al (1981) be assessed under CRE 702. L.Ed.2d should Washington, v. though 229 Kan. 622 P.2d we that “the State noted (1981) general accep pro devices (despite applied lack to novel scientific tance, testimony sufficiently manipulation of involving physi court found cesses Catanese, admission); Hampton, State reliable for 746 P.2d at cal evidence ...” (La.1979) (the criteria used upon 368 So.2d we also remarked fact that admissibility of determining applied only had one case— been necessary rise to level evidence should not had that we declined to Anderson —and Williams, notice); judicial State involving post-hypnotic it to apply another (Frye (Me.1978) should be limited Romero, A.2d 500 testimony. People v. tests); original to its context —lie detector denied, (Colo.1987), cert. 485 U.S. Williams, St.3d State Ohio 108 S.Ct. 99 L.Ed.2d 506 (court rejected N.E.2d 444 Hampton, Subsequent decision in to our “a standard derived used more flexible apply also declined to another Evidence”); Rules of from this state’s reliability eyewit- concerning case Brown, 297 Or. P.2d 751 identification, since it did not involve ness (court Phil relevancy test); adopted Campbell v. per testimony scientific se. lips Dept. ex Social Serv. rel. Utah St. before, People, (Colo.1991). 1 As 814 P.2d Jackson, (Utah 1980) (trier v. P.2d 1228 615 Frye we did not state whether the law deprived of of fact not be scientific should light not. In of these cases of our state or Wal simply controversy); data because contrary majority’s position, it to the is stad, (court Frye found N.W.2d Frye adopted my belief that we have not as evidence; adopted only polygraph as to all being applicable any testimony to scientific relevancy other evidence held to test of Thus, than lie detector test. other the Evidence). Rules adopt free to other tests which would addition, In it should be noted that we prove assisting to be efficient our more balancing conducted test of sorts namely CRE search for the truth — Anderson, applied the case which we my view as the Other courts share polygraph strictly to evidence. We applicability of Evidence to Rules that, determined in addition to inadmis- determining that such evidence sibility polygraph of the evidence under See, e.g., United is evidence admissible. Frye, such is also evidence inadmissible (S.D.Ohio Yee, F.R.D. 629 States “because of the serious interference with Jakobetz, 1990); United States potential jury’s prejudice to a evalua- (D.Vt.1990), judgment aff'd, F.Supp. tion of and credibility the demeanor of wit- Cir.1992); Andrews (2d 955 F.2d 786 testimony.” Anderson, nesses and their State, Dist.1988); (Fla.App. 5 533 So.2d 841 balancing 361. This is a Commonwealth, Spencer v. Va. weighing relevancy against CRE CRE 384 S.E.2d 785 prejudice test I same believe to be —the viable 702 and to be applicable under CRE presiding applying judge CRE present situation. weigh of the helpfulness must evidence jury may against possibility be balancing A under the rules of evi the admission of prejudiced misled People Hamp applied dence was also factor to uti- such evidence. One such ton, (Colo.1987), P.2d 947 case that accep- be the lized in the assessment would support cites its discus technique tance of the new within the sci- Maj. op. sion of test. 889-891. community, entific but would be the Hampton applied was not and a under As determinative factor as plain reading strong of that case reveals a long case, proffered as the reliable criticism of the test. In that prosecution sought support, although to introduce and has there evidence of field, rape syndrome. controversy trauma We scientific such evi- acknowledged the use of jurisdictions dence would be admissible. court, find, testimony Forman expert

As did trial I on the facts Given Dr. s significance court, to the statistical of the DNA before the record match, 830,000,000probabili I the 1 in find testing testimony scientific as to both the ty to reliable The be a number.3 methods procedures help- and statistical support used to have calculate number non-prejudicial. The ful and trial court See, e.g., Ranajit within the field. following stated for its reasons admis- Kidd, Chakraborty & Kenneth K. The Util testimony sion into of the evidence. Work, ity Typing in Forensic First, proce- it determined that the same 1991); (Dec. 20, Devlin, Science B. diagnosis genetic dures are used in dis- Roeder, Kathryn Neil Risch No & Excess determinations, paternity eases as well as Homozygosity at Loci DNA Fin Usedfor rendering techniques not novel. In ad- gerprinting, (Sept. 249 Science 1416 dition, great is a there deal of literature 1990). Because Dr. Forman’s calculation concerning procedures the topic. relevant, properly reliable it was Furthermore, subject peer review. admitted into evidence under CRE 702 and expert well-qualified witnesses were shared views of other witnesses around testimony prosecution experts country. convincing, and it was not called into testimony expert I find the wit- question by serious the defendant. As persuasive. be particularly nesses to Dr. types expert testimony, with other Setzer, perspective from his as a member disprove burden is on defendant to such process of a national committee in the demonstrate substantial implementing testing pro- standards as prejudice, through the use whether cedures, thought testified that he such expert cross-examination or rebuttal wit- standards met in this situation. Dr. nesses. That burden not met validity Forman defended the of the data case, defendant in this and exclusion under probabilities base used determine the not CRE 403 is mandated. issue in this case. The data base to which I majority’s holding thus concur compared defendant’s DNA was that the this case was compiled of members of the African-Amer- properly I admitted into evidence. dis- community ican in Detroit. The defendant however, agree, majority’s use of being attacked the data base not a truly test, the Frye apply and instead would random population. Dr. Forman stated relevancy princi- as to novel scientific that Detroit was the very chosen for rea- , ples. test in Such a this situation would son that its population African-American jury any allow the to hear as to the debate flux, was in a constant state of as stated principles interpret- involved population geneticists, sociologists ing DNA results apply that debate experts. Furthermore, and data base she weight given. the evidence should laboratory testified that the used conser- approach declaring vative matches as to alleles, rendering tested the frequen- matching higher

cies of much than the

actualities. reliable, purposes, Because this number is I do not be- tant for scientific either number still necessary gives substantially lieve it percent for us to address the viabili- more than a cer- ty "ceiling principle,” tainty majority person as the of no other than defendant opinion Maj. op. appli- matching legal does. n. sample purposes. 19. The the DNA principle cation legal evidentiary standpoint, will alter the From an either statistic probability expresses high effect of degree certainty. long the statistical of a match. As that, reliable, example although uses the argu- under both numbers one 830,- “ceiling principle," other, probability ably may of 1 in be “more reliable” than 000,000 8,300,000. may actually 830,000,000 (1 be 1 in Id. I difference between the two point 8,300,000) would like to go weight, out that while difference and 1 in should probabilities may between impor- those two of the DNA evidence.

Case Details

Case Name: Fishback v. People

Court Name: Supreme Court of Colorado

Date Published: Apr 26, 1993

Citation: 851 P.2d 884

Docket Number: 92SC68

Court Abbreviation: Colo.