Lindsey v. People

hоlding under section Such 24-10-108 view, contrary, my

would be both the

plain language of that section and our sover- immunity

eign jurisprudence, including our

unique common law and the GIA. Because necessarily

the “bar to suit” our GIA

requires immunity a determination of that is case,

intertwined with the merits I plaintiff

believe a is entitled to a full fair claim,

hearing hearing on the merits of his always guaranteed

that is not under C.R.C.P.

12(b)(1). agree prior dismissal, I

plaintiffs provided should be with a full and however, hearing, contrary majori-

fair

ty, I type pretrial would leave the motion parties

utilized to the and the discretion of

the trial court.9

IV

Because the determination as to whether a Fogg’s may

bar to claim exist under the GIA

is so “intertwined with the merits” of his

claim, agree I that the trial court’s reliance 12(b)(1)

upon C.R.C.P. dismiss was Accordingly,

error. because I too would re- remand, only

verse and I concur in the re-

sult.

Gregory LINDSEY, Petitioner,

The PEOPLE of the State of

Colorado, Respondent.

No. 93SC167. Colorado,

Supreme Court of

En Banc.

March 1995.

Rehearing April Denied 1995. Moore, ally procedure contemplate 2A James W. Moore's Federal Prac- our rules of also other ¶ (2d 1992). motions, tice ed. 12(b)(5) 12.07[2.-2] 12-60 pretrial including for failure to summary judgment state a claim motion My reading §§ of pretrial 24-10-108 24-10-109 dismissal under C.R.C.P. 56. 12(b)(1); does not limit motions to Rule following

examination of victim the as- expert sault. The court also allowed testimo- ny probability that the regarding the defen- profile pro- DNA match a dant’s would DNA randomly Afri- file obtained from a selected Lindsey argues can American individual. improperly that the trial court admitted the procedure DNA evidence because the used to compute probability of the statistical a ran- Vela, F. Colorado State Public De- David profile dom DNA match was not Gerra, fender, Deputy Pub- and Martin State accepted by when Denver, Defender, petitioner. lic the trial ruled that the was court evidence admissible. Norton, Gen., Atty. Stephen A. K. Gale ErkenBrack, Gen., Atty. Deputy Timo- Chief Gen.,

thy Tymkovich, M. Sol. and Deborah A. Facts Pratt, Atty. Gen., En- Isenberg Asst. Crim. 16, 1988, February wearing man Section, Denver, On for respondent. forcement Springs mask broke into a woman’s Colorado sexually home and her. assaulted She did ROVIRA delivered the Chief Justice at Opinion not look her attacker who him- of the Court. identified police self as a man”. told “black She she granted People We certiorari v. Lind believed man attacked her next who lived sey, (Colo.App.1993), 868 P.2d 1085 to consid living door men next because the two door whether, er in view of this court’s decision in built, powerfully were tall similar to her (Colo.1993), People, 851 P.2d 884 Fishback v. fact, Lindsey, in next attacker. lived door to appeals holding the court of erred that the woman, suspect not a until after but was employed to calculate the statisti he was arrested connection sexual cal a declared match in a Deox- assault on a second woman. (DNA) yribonucleic Acid related case and not to its sexually The second woman was assaulted admissibility. Petitioner advances three rea January 1988, police time at which recov- (1) sons for reversal: time the including ered evidence from the crime scene signifi there evidence was offered was seminal from a medical fluid obtained exami- disagreement concerning cant scientific woman, nation of and from stains on her validity em May again bedclothes. In an intruder (2) ployed; that the district court heard ex home, into broke the second woman’s pert testimony regarding disagreement; her, attempted fled to assault but when her (3) disagreement finally that the has not neighbor Lindsey was telephoned. arrested pro has been resolved but become more assault, May police after the at which time hold that nounced. We evidence was samples obtained of his blood. June and affirm admitted the court of police Lindsey’s samples blood to- furnished appeals.

gether with at both evidence obtained crime Diagnostic Corporation scenes Cellmark I. AND FACTUAL PROCEDURAL (Cellmark) analysis. for DNA Cellmark’s re- BACKGROUND port declared a match between the DNA (Lind- defendant, Gregory Lindsey Lindsey’s sample extracted from blood sey), degree convicted of first sexual was the DNA from both crime scenes. recovered assault, degree burglary, second and four originally charged single was trial, counts. At habitual criminal the court information assault on vic- with sexual both to introduce evidence that allowed granted Lindsey’s tims. After court mo- samples matched defendant’s DNA charges, January taken fluid medical tion to from seminal obtained sever the assault case was tried first.1 At the trial of jury of the DNA evidence while February People’s 1988 assault case the January selection in the 1988 assault case experts regarding testified undеrway (January hearing). At Lindsey’s profile would match the hearing this recalled Drs. Hous- profile randomly of a selected African Ameri- man presented testimony Garner and ranged can individual. The estimates from from expert an additional who testified re- one 340 billion down to in 21 one million garding general acceptance the of the meth- using more conservative calcula- ods used to calculate random probabil- match tions. Again, Lindsey ities.3 presented contrary no Following

evidence. hearing the the trial proceedings B. Pretrial court ruled that DNA completed by Cellmark was admissible under evidence, admitting Prior to the DNA Frye test.4 trial court proceedings conducted to deter- admissibility mine its v. United Upon January conclusion of the 1988 as- States, (D.C.Cir.1923). 293 F. 1013 case, prior sault commencing to the Feb- case, ruary Lindsey 1988 assault requested a The first hearing was Sep- held on Frye hearing, new and advised the court the 16, 1988, charges tember before the against ready defense challenge was now to the ad- Lindsey were severed. The present- missibility of the DNA In expert ed two evidence.5 re- regard- witnesses who testified sponse, People requested ing general the court acceptability to the theories techniques prior hearings rule that the dispositivе used to conduct were typing.2 Lindsey’s respect counsel advised the court to that no of DNA evi- funds were experts available to retain dence. The to referred the court to People’s refute the evidence. several The court con- recent Colorado cases where trial Frye hearing tinued the Lindsey’s request. evidence, courts had admitted DNA together January On charges after the Maryland, were with decisions from Florida and severed, parties reconvened to decide the New York where courts had allowed DNA Upon 1. Lindsey plication conclusion of the first technique particular of that and the degree burglary convicted of procedure second and first is valid and then whether the ulti- degree attempted sexual assault helpful and habitual mate result would be more to the find- criminal counts. prejudice The decision was affirmed on er of fact than [sic] to the defendant. appeal, People Lindsey, (Colo.App. 89CA340 27, 1990) (not Sept. publication), selected for official regard The court with to the statistical evalu- denied, (Colo. 11, 1991). rt. Feb. No ce presented ation finds from all the evidence appeal. DNA issues were raised on technique ap- there is a valid statistical to be plied opinion expert, and in the of that this is a Housman, 2. Dr. biologist David a molecular procedure throughout which is followed Technology, from Massachusetts Institute of testi- biological community analyzing biological regarding underlying fied scientific theories population statistics and that the utilized techniques typing. used in DNA Dr. David expert bring in this case is sufficient it to Garner, the director of Cellmark laboratories tes- within the statistical liable—statistical reliabili- regarding acceptability tified of Cellmark's ty using biological many of those statistics in typing protocol. and, therefore, accept- areas [it] find that able. Goldman, expert population Dr. David an Therefore, the Court finds from the evidence genetics, regarding reliability testified presented reliability that —there is sufficient statistical methods used to calculate the random general accepted general acceptance probabilities. match again involved in both analysis applied and the statistical to 4. The trial court concluded: helpful that information to render them |T|he Fry[e] standard in is for the court outweigh any potential to finder of and to fact far technique being decide whether prejudice or not the to the Defendant. presented generally accepted to the court is community the relevant 5.Lindsey's explained ... in this counsel that the DNA evi- including community case both the scientific dence was not attacked at the first trial because studying Lindsey’s guilt apart the DNAand the scientific evidence of from the DNA statistics, studying biological ap- whether the evidence existed. Lindsey’s probabilities.8 mo- calculate random match The court denied

evidence.6 was in claimed Cellmark’s database Frye hearing ruled that for a tion new disequilibrium causing cal- the random match respect had been met with test to be the court culations unreliable. Because analysis and both already had ruled that the DNA evidence calculating random the statistical methods Frye test, the court was admissible under objected, ar- probabilities.7 Lindsey Lindsey’s ana- ruled on motion limine typing procedures, guing Cellmark’s DNA Lindsey’s lyzing objections under CRE upon genetic probes relied particularly the and 403. The court summarized the testimo- segments, had not polymorphic DNA isolate ny: community. accepted by the scientific been unanimously The Defendant’s witnesses granted Lindsey per- response, the court agreed predic- that no reliable statistical to in limine to address mission file a motion probability tion of of a match two between regarding his Cellmark’s DNA test- concerns unrelated individuals could be established ing protocols. upon system the evidence or the utilized motion, requested filed such a and by prosecu- Cellmark. Witnesses the suppress that the the DNA evidence. court study recognized tion have that further requested At he reconsidera- the same time refining and con- should Frye hearing. a The tion of the denial of tinue, ‍‌​​‌‌​​​​‌​‌‌​‌‌​​‌​​‌​​​‌‌​​‌​‌‌​‌‌‌‌‌​‌​​​​‌‌​‍testify technique but that the was argument on in li- court heard the motion point at reliable this to establish the identi- February Although Lindsey in mine ty persons degree to a reasonable of originally objected genetic to Cellmark’s probability by scientific in com- utilization hearing probes, argument at his focused paring Applying the DNA patterns. Rule Evidence, procedures used on the statistical Cellmark of the Colorado Rules the State, (Fla.Dist.Ct. analyzing 6. Andrews v. 533 So.2d 841 scientific basis for (DNA App.1988) typing particular through admissible under rele [sic] characteristics State, test); vancy Md.App. Cobey commonly accepted use of and statistics is (1989) (DNA typing under commonly accepted A.2d 391 admissible tools [are] used within test); People Wesley, 140 Misc.2d community. scientific (1988) (finding typing gener N.Y.S.2d 643 acceptable allowing ally and extraction of blood hearing, Sey- 8.At defense counsel Dr. called samples 417, testing), Geisser, aff'd 83 N.Y.2d to conduct statistician, expert mour an who testified (1994). 611 N.Y.S.2d 633 N.E.2d 451 regarding flaws in Cellmark's and cal- database probabilities. culation of Dr. Paul explained ruling: Hagerman, expert biogenetics popula- 7. The court its in an and genetics, tion testified that forensic pre- The Court has considered the motion Length Fragment Polymorphism Restricted it, determining sented and the to court in (RFLP) analysis generally accepted. not Dr. was Frye hearing whether or not a should be held Mueller, expert ge- population in Lawrence netics, an in this must address the issue of a case Cellmark's was de- testified that database hearing, particular test which is not whether a frequencies. ficient for calculation of allele accepted, was in a manner nor is conducted Libby, expert Dr. Randell an biolo- molecular proper community, par- in the nor whether gy testing, and testified forensic that DNA job correctly per- ticular vendor did the or is setting subject in the forensic cism, had been to criti- sonally individually qualified qualified or to problems potential Cell- identified tests, perform but not the certain whether or protocols matching and mark’s and criteria being upon which scientific basis the evidence analysis opined that Cellmark’s statistical was timely presented to the Court is valid and generаlly accepted. Dr. not Moses Samuel accepted community, which Schanfield, expert genetics, ques- an in human techniques. uses those testing protocols, tioned Cellmark’s DNA match- upon precedent Based in the State of court, ing to Colorado, criteria and database used calculate match only ruling but not in this trial rebuttal, frequencies. People courts, called In Dr. upon con- other trial based this Court's Kidd, expert genetics, psychiatry Kenneth an presented of the evidence at its own sideration biology, data- and who testified that Cellmark's Frye hearing previously against in a case this defendant, calculate base sufficient to random same written decisions probabilities, provided an Appellate estimate based New York and the deci- Court in Mary- of one sions land, out more conservative calculations that have come of Florida addition, hearing. going deny Frye in 21 million. relied on the Court is to In testimony presented upon at the that the basis the record of the court finds January hearings. testing September which both the DNA occurs and produced that the witnesses Court finds sible both test and CRE 702. both the and the Defendant are Id. at 1091. The court found and, therefore, qualified experts qualified hearing limine purpose served the same as testify.... significant The existence of Prong test; is, III of the Castro among experts disagreement to the validi- testing decide laboratory whether in this ty opinions expressed anot reason applied accepted case testimony this from the finder exclude analysis. its forensic DNA Id. of fact.9 controversy The trial court found that the II. SCIENTIFIC BACKGROUND regarding Cellmark’s statistical went Generating profiles A. rather than the Lindsey argues the evidence. the DNA evi- explained procedures we should dence have been excluded because the fragments used to extract and isolate DNA methodology used to determine the statistical profile using order to construct a DNA significance accept- of a DNA match was not Fragment Length Polymorphism Restriction ed the relevant scientific (RFLP) analysis. Lindsey question does not trial, the time of not therefore was ad- underlying the scientific theories RFLP anal- missible. ysis.11 Lindsey argues nevertheless that the evidence should have been excluded based on Appeals’ analysis of C. Court disagreement scientific over the statistical (Colo. In People Lindsey, v. 868 P.2d 1085 analysis provide used to a context for the affirmed, App.1993), appeals ap the court of profile match. plying analysis step adopted a three in Pеo Lindsey’s In Castro, argu- order to understand ple v. 144 Misc.2d 545 N.Y.S.2d (1989).10 briefly ment we must revisit the scientific 985 explained The court first Lind processes analysis involved in RFLP sey’s ex- challenge to forensic of the plained in 851 P.2d at 883-84. portion required of the evidence analysis extracting RFLP involves and isolat- Lindsey, review under the test. ing portions of P.2d at small the DNA molecule to 1089. Whether Cellmark implemented highly examine sites on the DNA that generally accepted techniques exhibit required relevancy review under a variable characteristics. standard. Scientists refer to parameters Id. at 1090. Based on these that the sites of examination as loci. Each locus genes court held that the DNA evidence was admis consists of variant forms of known as "probative People Lindsey, (Colo.App. 9. The court went on that to rule the 868 P.2d at 1088 outweighed by 1993) Castro, value of the evidence is not (quoting People v. 545 N.Y.S.2d danger prejudice jury being of unfair or the mis- 987). led, therefore, Court, having designated explain The court went on to the first two Frye hearing motion not as a but as a motion in prongs exclusively deal limine, denies the Defendant’s motion in limine." prong test. It held that the third could be handled at a motion in limine to determine Castro, prongs the court identified three “testing laboratory performed whether the аpplicable typing: test to DNA techniques accepted analyzing scientific Prong I. Castro, particular samples forensic in this case.” theory, generally accept- Is there which is 545 N.Y.S.2d at 995. community, sup- ed in the scientific which ports the conclusion that DNA forensic test- regarding theory 11.The debate and tech ing produce can reliable results? niques applied in RFLP has been re Prong II. profile Frye. solved to allow DNA evidence under techniques experiments Are there (Colo. People, P.2d See Fishback currently capable producing exist that are of 1993) (holding may judicial that trial courts take reliable results in DNA identification and acceptability generally accepted which are notice em in the scientific community? analysis); ployed in RFLP see also Thomas J. Prong Annotation, III. Fleming, Admissibility of DNA Iden testing laboratory perform Evidence, Did the the ac- (1991 § tification 84 A.L.R.4th 313 cepted analyzing Supp.1994). & samples particular forensic in this case? locus, Frequency calculations occupy B. each allele forms alleles.12 Two inherited from the one on a chromosome generated for both the After autorads are mother, inherited on a chromosome and one sample the evidence sam- known DNA the same form father. When from the compare them to decide wheth- ple, scientists on the chromosomes occupies both loci allele match. Once a match de- er the bands allele, homozygous for individual is put the data in context clared scientists loci, occupy when different alleles rarity of such an oc- explaining the relative heterozygous for both alleles.13 individual is Thus, significance of the currence. role iden- probes play a central Genetic calculating match is demonstrated regions of the DNA mol- tifying polymorphic matching profile autorad that a likelihood magnets to lock probes The act as ecule. randomly individ- appear in a selected would in, or segments to occur known onto ual. regions to, highly adjacent these variable Thompson chain. William C. the DNA See step generating the statistics The first Ford, Typing, 75 Va.L.Rev. & Simon of an comparison involves the creation (1989).14 probes are treated 74-76 The tried database. When was autorad they are solution before with a radioactive sam- typically compared the known scientists radioactivity combined with the DNA. sample autorads from ple with a random scientists, completing a series after enables the same broad racial individuals who shared complex procedurеs, to record Here, Cellmark’s database characteristics.17 Thus, x-ray film. probe’s location on Afri- comprised DNA autorads from created, picture the individual’s DNA is American individuals who donated blood can (autorad) autoradiogram which re- called an at a Detroit blood bank. an electronic bar code.15 Cellmark’s sembles constructed, autorad if a database is probes eight an band autorad Once four create by compar- frequencies are calculated heterozygous for each allele. band the individual is ing with the database bands appear the individual is the known bands Fewer bands when frequently match.18 how bands homozygous any particular for allele.16 to determine creating processes any involved in an autorad one a series of two or more 15. The 12. Alleles are of length may occupy posi- genes the are discussed at Fishback. different same specific Sted- 851 P.2d at 886-88. tion or locus on a chromosome. 1990). (25th Dictionary 45 ed. man’s Medical de- number of bands in the autorad will 16. The comprise 13. The tílleles which the loci consist pend at locus. Heter- on the form of alleles each multiple pairs the nucleotide bases Adenine ozygous auto- contribute two bands to the alleles (T) (A), (G) (C), Thymine Cytosine Guanine аnd rad, single homozygous contribute a alleles according pair to the base rule—A which bond Evett, Putting DNA Statistics: band. See I.W. generate a with T and G with C. In order to Perspective, 33 Jurimetrics J. the Problems into unique high- profile Cellmark studies four that is (1992). 140 n. polymorphic ly variable sites referred to as loci. Polymorphic repeat contains units of identi- sites Caucasian, sample suspect was the 17. When the pair sequences distinguish which one fiable base Caucasians, population if the would consist another, person to as Variable from referred Hispanic, sample population suspect the (VNTR) Repeat loci. The se- Number Tandem Theoretically, racially Hispanic. simi- would be may repeat quences of nucleotide bases hundreds greater a likeli- databases were used to create lar loci, depending times at each VNTR on the safeguards profile of a DNA match which hood Gaut, See B.S. Weir & B.S. Match- individual. ing against understating probability the of a random Binning Fragments in Forensic categories broad racial for match. The use of (1993). Science, 34 Jurimetrics J. Lindsey's purposes underlies one classification objections DNA evidence. See discussion genetic long probes have used Scientists pp. 287-88. infra variety settings unrelated to forensic of medical genes typing including identification of for floating anal- genetic either fixed or bin and inherited disor- 18. Scientists use inherited diseases ders; Binning frequencies. gene genet- ysis splicing; to detect to calculate match as a tool for recording helps rads, auto- ically engineered microorganisms to account for variables in in the environ- frequen- provides confidence limits on quality the food ment and as a tool for control in Ford, cy from drug industry. Thompson In fixed bin autorads & estimates. assigned certain bins which the database are Typing at 72 n. 7. appears by multiplying together if lated example, For an individual band the four loci frequencies.20 three out of one hundred individuals its fre- quency frequen- is .03. After individual band probabilities only Product rule are accu- calculated, the likelihood that cies are underlying rate if estimates the events complete duplicated in a autorad would be truly independent calculations are and ran- randomly individual is calculated us- selected Here, independence proba- dom. means the ing product product rule. The rule is bility finding by one allele is not affected simply the mathematical formula used to de- having any found other allele. For each probability independent termine the that two locus, independence event occurs when there simultaneously, events would occur calculat- is no correlation between the allele inherited probability multiplying ed of each from an individual’s mother and the allele event. inherited from that individual’s father. paren- no correlation between the two When product required rule are Two calculations population sample tal alleles exists the is pro- to determine of a random the likelihood Hardy-Weinberg equilibrium.21 considered in First, frequency file match. of match independence step Event for two of the cal- at each locus is calculated. Because the culation, frequency of the multi-locus ‍‌​​‌‌​​​​‌​‌‌​‌‌​​‌​​‌​​​‌‌​​‌​‌‌​‌‌‌‌‌​‌​​​​‌‌​‍generated depend at each locus bands on genotype, occurs no when there is no statisti- homozygous the individual whether het- cal target correlation between alleles within a alleles, erozygous particular for those population. If no correlation between the depending formula varies the allele form. exists, alleles identified at different loci frequency homozygous The for a allele is population sample linkage equilibrium. is in computed using p(al)2; formula the fre- quency heterozygous computed for a allele is Lindsey аrgues population that Cellmark’s using 2(p(all)p(al2)); proba- p where denotes Hardy-Weinberg out database was of both bility, represents linkage and al each allele.19 After equilibrium. Consequently, he calculated, frequency possible for each locus is it contends was not to calculate a frequency complete genotype meaningful probability. is calcu- random match previously assigned pear every have been measured and in one out of ten individuals for a frequency. probabil- A tolerance is then built around the of .1. Scientists estimate the ity any known or evidence band after which the band is that these alleles will occur in individual assigned corresponding to a bin. If the band falls within two the locus identified assigned highest probe frequen- using 2(p(all)p(al2)) bins band is bin the formula where cy pall occurring, calculations. is the likelihood of variant one pal2 and two occur- is likelihood of variant Floating bin focuses on the autorads Thus, ring. probability of the random occur- sample, obtained from the evidence around = .002, 2((.01)(.l)) rence of both bands is or one Typical- which individual bins are constructed. in five hundred. ly, floating bins are constructed with a resolution tolerance of a certain number of standard devia- example, sample 20. For if random shows the tions centered around the evidence band. Data- All, A12, frequencies of alleles A13and A14 are base bands which fall within the bin created for .04, .06, respectively, the .4 and .01 estimated assigned the evidence band are then evi- frequency genotype product for the is the of all floating dence band's bin to calculate band fre- frequencies four individual allele Here, quencies. floating Cellmark used a bin = .0000096; (.04)(.06)(.4)(.01) approxi- or one in Lindsey's sample based on known to calculate 104,170. mately See National Research Council frequencies. autorad band Technology in Forensic Science Publication binning typically high- In both cases results in (NRC Report) at s-10. probable frequencies. higher er match frequencies weigh suspect’s match in a favor Hardy-Weinberg principles 21. derive from an yield probability because the calculations will genetic algebraic equation that describes the greater chance of a random match. See B.S. Gaut, equilibrium population. discover- Matching within a First Binning Weir & B.S. and Science, Hardy Weinberg, ed in G.H. and W. Fragments in Forensic 34 Jurimetrics J. principle gene frequencies (1993). states that will remain 12-14 generation generation constant from within a it, example, heterozygous population change 19.For one variant of a outside forces act to unless may group provided mating See allele occur one time in of one remains random. .01, Wesley, hundred individuals for a of 140 Misc.2d 533 N.Y.S.2d 643 (1988). corresponding may ap- allele variant of the — Pharmaceutical, Inc., -, U.S. upon to claim relies scientific debate (1993). Here, 2786, 125 L.Ed.2d 469 calculations were not S.Ct. however, of scien- construe the Colorado Rules accepted within the relevant we community possibility to the of and are not bound a non-consti- relates Evidence tific Subgroup- of Federal Rules of subgrouping among populations. tutional construction premise that census ing upon the do not consider the relative is based Evidence. We “Caucasian,” “Black,” populations designated Frye corollary or state merits of the test our multiple ge- actually “Hispanic” simple consist or of evidence for the reason rules subpopulations. us, See R.C. netically diverse not now before and has not been issue is Hartl, Population Ge- Daniel L. Lewontin & fully argued.22 or briefed Typing, 24 Science in Forensic DNA netics Fishback, explained that before nov- we (Dec. 1991). spec- have Scientists both the el scientific evidence is admissible may subgrouping cause both ulated that such underlying “theory novel sci- disequilibrium Hardy-Weinbеrg linkage generally accepted entific evidence must be calcu- population sample used to within the There, adopted a two- Frye.” under we affecting the probabilities, late random (1) admissibility: general pronged test for validity product calculations. rule acceptance in the relevant scientific commu- underlying theory principle, nity or III. OF ADMISSIBILITY STANDARD (2) general acceptance the relevant Initially, recognize that neither the trial we community scientific used appeals nor court of had the benefit court Fishback, theory principle. apply admissibility of DNA of our view on the Frye has 851 P.2d at 891. Once the standard People, explained in Fishback v. evidence met, any challenge implementa- to the been (Colo.1993). af- In Fishback we P.2d 884 techniques “goes tion and execution these rulings Frye v. prior firmed our United to be accorded such evidence.” (D.C.Cir.1923) States, sets forth 293 F. 1013 Id. determining the applicable standard for admissibility evidence. of novel scientific trial Before we can consider the rul- Consequently, we review the court’s ruling the two court’s we must resolve test, Frye and the ings with reference to the questions underlying the first threshold ap- in Fishback for the parameters outlined (1) test; prong comprises of our who typing. plication of to DNA (2) community; relevant scientific finding general acceptance ap- fully aware that when a apply the test

We propriate. explained In Fishback we in Fishback the United since our decision typ- rejected Frye for DNA Supreme Court has as relevant States ing disciplines. of scientific included several the standard Here, 851 P.2d at 892. the attack in favor of what has been character- significance relevancy on the statistical of a declared ized as a more lenient standard disciplines population FRE Daubert v. Merrell Dow match involves the many necessary for admis light state courts are a nor a sufficient condition 22. of Daubert is, however, reconsidering viability Frye test with sibility; a it one factor that district People Leahy, Compare 8 mixed results. v. deciding normally court should consider in 587, 663, Cal.Rptr.2d P.2d Cal.4th 34 882 321 upon whether to admit evidence based the tech " (1994) (after analysis of the more of the merits nique.’ (quoting Downing, States v. 753 United Frye approach, Su conservative the California 1224, (3d Cir.1985)); Fishback v. Peo F.2d 1227 "Daubert, preme Court concluded which avoided 884, (Colo.1993) (Mu ple, 851 P.2d 898-99 llark justifica Frye’s presents 'merits' no the issue J., result); ey, concurring v. see also State aspect of our tion for reconsideration of that holding Kelly [adopting Fryel") Bible, 549, (1993), 175 Ariz. 858 P.2d 1152 cert. with State v. - -, 1578, denied U.S. 114 S.Ct. 128 192, Alberico, 156, (1993) P.2d 203 116 N.M. 861 (1994) (concluding field of "[t]he L.Ed.2d 221 (explaining Frye legitimate test is not a means for testing probably subject the worst to use is determining what is and what is not scientific refine, replace " to decide whether or how to '[accordingly, par knowledge, we hold that a Frye.... leav[ing] Daubert for another abolish degree acceptance of a scientific tech ticular nique day”). is neither within scientific

289 See, Devlin, genetics demographics. erally.” e.g., genetics, human Commonwealth v. 149, 353, 365 Mass. Id. 310 N.E.2d 356 n. 3 (1974) (requiring authority “substantial for” inquiry de The more difficult involves the acceptance community). within the scientific theory termination of when a novel scientific general Nor are accep- we of the view that “generally accepted” is within the relevant requires tance the trial court to “count scien- community. Frye clarify does not noses,” Frye. tific an often voiced criticism of general acceptance. In Fishback we ex Downing, See United States v. 753 F.2d plained “party prove a need not the absolute (3d 1224, Cir.1985); 1238 but see v. validity producing of the used 263, Perryman, (Colo.App.1993) 859 P.2d 268 novel scientific evidence before it can be ad (explaining testimony reliance on the of a unanimity mitted.” Id. at 884. Scientific single appropriate witness is when “the wit- nor, instances, required neither some de qualified skill, through knowledge, ness is Recently, ap a court sirable. California training, experience education or to render rejected peal argument that the existence opinion general an acceptance as to the of the in a of “two sides” scientific discussion re techniques....”) evidence, quires exclusion total ex plaining admissibility required “Generally” accepted if accepted absence means “in a Copernicus’s theory reasonably of debate “even of a sun- inclusive manner.” Webster’s 3d (1986). system Dictionary centered solar could not be men New International 954 Frye, requires in a court of tioned law.... The flat earth Under this the trial court to Soto, society carry day.” People give qualitative would v. consideration to the evidence 340, 846, court, Cal.App.4th Cal.Rptr.2d presented 30 35 the state science ascer- (1994). Leahy, commentary also v. tainable from scientific See Cal. (Cal.1994) 655, Rptr.2d journals, rulings jurisdictions at 882 P.2d at 329 from other (“First, ‘general accep admissibility ques- we should make clear which consider the same Giannelli, require unanimity, tance’ does not a tions.23 See Paul consen C. The Admissi- opinion majority support by bility sus of or ‍‌​​‌‌​​​​‌​‌‌​‌‌​​‌​​‌​​​‌‌​​‌​‌‌​‌‌‌‌‌​‌​​​​‌‌​‍even Novel Scientific Evidence: States, Later, community.”); Pеople Half-Century United Wes 80 Co- (1980). 97, 100, 1197, ley, 83 N.Y.2d 611 N.Y.S.2d 633 lum.L.Rev. 1215-19 (“This (1994) N.E.2d Court has not particular procedure

ed that the need not be IV. LEGAL ANALYSIS ‘unanimously endorsed’ the scientific com appellate “[I]t is the task of an court munity ‘generally acceptable must but be as reviewing determination to assess ”). reliable.’ gener whether novel scientific evidence was “generally ally accepted

This court has adhered to the in the relevant scientific com accepted” implicitly standard. have not it We munities the time was offered into evi demanding created a more standard dence at trial.” 851 P.2d at 891. changing meaning adjective “gen- question While this involves factual consider- Despite Frye, Testimony Early the criticisms levelled at this after Daubert: Some Returns Courts, 1994) is not far removed from re (Aug. standard evaluation from Lower Trial quired FRE ("The 702. Under FRE judges previously science that considered court must still screen the evidence to ensure generally accepted scientifically is now valid and "any testimony and all scientific or evidence is previously reliable. The science that was found - relevant, Daubert, only not but reliable.” generally accepted appears not to be now to be at -, (emphasis sup U.S. 113 S.Ct. at 2795 (citations lacking validity.” omit plied). inquiry reliability An of the sci into ted)). Nоr does the test exclude evidence “scientific, ence assures the evidence is indeed relevancy weighing. CRE 401 and 403 from specialized knowledge.” technical or See State apply equally to scientific evidence ad deemed Alberico, 156, 192, v. P.2d 116 N.M. 861 203 Frye may require missible under which exclusion (1993) (Several factors could be considered probative substantially outweighed its value if is assessing validity particular trial court in the of a danger prejudice. the of See unfair technique to determine if it is ‘scientific knowl Anderson, 354, (Colo.1981); 637 P.2d see 361 including general edge' accep under Rule 702 , Brown, al., also Kenneth S. et 1 McCormick on — at -, (citing tance U.S. 113 S.Ct. Daubert 703, (4th 1992).' § Evidence at 868 ed. Mack, 2790)); see also Thomas J. Scientific

290 Frye. requires evaluation under See general ations, of whether the determination (Colo.1991). 1, Campbell People, 814 P.2d 8 admit the evidence is acceptance existed to Accordingly, review the made clear Fishback where we This view was question of law. test de “to the trial courts the initial determi- application of we left trial court’s Giannelli, Admissibility whether, of light The of events which nation of novo. See Evidence, supra at 1222-23 subsequently to the trial have occurred Novel Scientific case, an qualification calculating of (explaining that while the the method for the sta- this discretion of the expert frequency within the sound match re- is tistical of a declared “process” Fishback, judge, qualification generally accepted.” trial 851 mains law); of see also as a matter is better viewed P.2d at 895. Watson, 915, Ill.App.3d 196 People v. 257 Here, underlying theory question 634, 89, 95, (finding 629 N.E.2d Ill.Dec. quantify probabili- whether scientists can matter of law for acceptance a of scientific pro- ty will have DNA that two individuals denied, court), Ill.2d appeal appellate highly characteristics at files with the same (1994). 182, 519, 642 N.E.2d 205 Ill.Dec. using calculations polymorphic loci statistical genetic principles.24 on known We based theory and A. Scientific misconception that the take care to avoid the under consideration theory probability somehow relates to of test Central the crime. See that a defendant committed theory is the identification Keohler, Exaggera- Error and Jonathon J. scrutiny. to techniques under Were we of Evidence at tion in the Presentation DNA theory to relate broadly define (1993). 21, Trial, 34 J. 31-32 Jurimetrics analysis inquiry would end. to RFLP our underlying technique The used to test the narrowly Similarly, if too and con- we focus theory requires creation of a database ade- only the mathematical bases for sider statistically quate yield significant allele to calculations, further examination is statistical frequencies probability for use in calcula- Indeed, unnecessary. raise the theory tions. If the trial court concludes question whether the calculations any generally accepted, are theories rise undisputed based questions regarding implementation technique to the level of novel specific techniques go to the require analysis under the test. While the evidence. recognize that the statistical formulae we frequencies are applied to calculate allele at trial B. State of scientific evidence type physical nor the science neither novel Fishback, Frye analysis, Like this case raises the typically such associated during proceedings the question calculations of when a narrow view of the applied. intertwining Frye analysis must be In Fishback ignores inescapable of statis- acceptance analysis. assessed the of the evidence RFLP In our view the we tics with trial court with- with reference to the time the formulae are subsumed basic statistical admission. 851 P.2d novelty typing, and involve the considered its in the of DNA trial court’s physical at 891 & n. 17.25 Because the type manipulation apprоach analogous theory the Arizona court's is no less time in RFLP is that ours, specific be based on their individuals can unique identified the court elects to take than rather profiles. snapshot point its at a later in time. In Fishback explained Frye requires nothing more than we recognize 25. We that our view of the relevant general acceptance at the time the evidence is Frye analysis subject for a has been timeframe Fishback, 851 P.2d at 891. To re- admitted. Bible, 549, 175 Ariz. 858 P.2d criticism. State v. compel quire courts to otherwise would Bible, (1993). the Arizona 1189 n. 33 might speculate regarding evidence that be intro- Supreme court elected to review knowledge. privy the court was to future duced if views of the scienti- DNA evidence based on the Wesley, People v. 83 N.Y.2d See also review, appellate at the time of fic 97, 99, (1994) (“It N.Y.S.2d 633 N.E.2d approach picture comparing a motion its emphasized inquiry that the here is should be science, captures evolving events of rather reliability of the DNA evidence at the into the snapshot trial. In our view than a at the time of ethnically admissibility spanned period to whether diverse databases could rulings on early genotype con- be used to time from late 1988 until 1990 we calculate fre- typing throughout quencies. challenged of DNA The second the relia- sider the status bility period. typing protocols. of Cellmark’s DNA the relevant time evidentiary hearings agree portions were We with The Fishback that October, There, testimony ruling in we ex- trial conducted 1989. and the court’s related plained typically theory techniques underlying that mid-1989 courts al- sta- typing probability analysis required lowed DNA evidence absent a show- tistical ing gross procedural Frye. id. at 890 evaluation error. See While we under- Though n. 14. statistical stand the trial we noted court’s reluctance to hold an- effectively Frye hearing previous- were not other calculations on issues it had Fishback, on, Fishback, challenged appeal ly explained in were ruled in we as we unfolding may necessary in aware of the debate this arena. reconsideration be if there is change at Id. at 894. We nonetheless held that the attitude of the scientific calculating community. time of Id. 891 n. 16. frequencies accompanying statistical a de- acknowledgement Frye questions Our generally accepted clared match were within hearing were raised at the motion limine Also, community. the vast ma- not, however, does render the trial court’s jority ruling accepted of courts on the matter ruling previous invalid. The trial court’s rul- statistical calсulations and there ing typing probabili- that DNA and statistical objection. existed a relative lack of scientific ty analysis generally accepted were within Id. the relevant scientific as a served ruling backdrop hearings here is Our influenced the sub- for the on the motion. similarity Thus, Lindsey stantial between the Fishback evi- needed to show that a shift in dentiary evidentiary community’s required timeframe and the rul- views Here, ings hearings prior ruling. this case. court to its reverse 1988, September, were conducted and Jan- No doubt exists that scientific debate re- 1989, uary hearing and the motion in limine garding emerging was February was conducted in re-With Indeed, during period. this time we noted spect rulings to the trial court’s on admissi- fact in this Fishback. Id. at 894. The emer- bility during Frye hearings Fish- we find gence of require scientific debate does not dispositive. Lindsey back made a tactical Moreover, Frye. exclusion of evidence under decision not to attack the DNA evidence crystallize did not until debate late presented hearings. at these were Scientists year evidentiary rulings over one after the generally endorsing typing the use of DNA magazine published this case when Science setting regard- in a forensic and the debate potential subgroup- articles on the effects of ing yet statistical evidenсe had not surfaced. ing. Compare R.C. Lewontin and Daniel L. Finally, country courts around the were ad- Hartl, Population Genetics in Forensic DNA mitting DNA evidence under the stan- (Dec. 20,1991) Typing, 254 Science 1745 dard. Kidd, Ranajit Chakroborty and Kenneth K. Utility Typing

We now turn to the trial court’s evidentia- The of DNA in Forensic (Dee. 1991). ry Work, findings made at the motion in limine 254 Science 1735 Fishback, hearing. Contrary Questions regarding subgrouping again evi- where were acceptability dence of the of statistical fre- addressed in National Research Council uncontradicted, quency Technology calculations went see Publication DNA in Forensic Sci- (NRC 893-94, Lindsey’s Report) pre- 851 P.2d at at- ence first circulated substantial, publication copies early tack on DNA made available in Thus, years despite followed two basic themes. The first related two trial.26 after proceedings Report tíme of the in this case in 1988 and 26. The NRC also detailed an alternate 1989.”). calculating probabili- method of random match using "ceiling frequencies.” ties Under the NRC approach product applied by using rule is 292 probability evidence under product rule criticisms leveled

the later “more relaxed” standard CRE 702. ruled on the admis- analysis, when the court at the motion sibility of the DNA evidence Lindsey’s allegations, Contrary to controversy had not at- hearing the limine recognized that appeals court of “forensic recently within the dimension seen tained the portion application of the statistical community. analysis Frye. required evidence” Lindsey, P.2d at 1089. The People v. 868 supports also Review of the record concluded, however, that ac- court ruling the evidence. trial court’s to admit cepted techniques for the calculation of ran- questions sub- Lindsey’s experts raised about probabilities existed at the time dom any empirical present grouping, but failed to at trial. Id. at the evidence was introduced the inde- subgrouping that affected evidence agree appeals 1089-90. with the court of We Support loci. pendence of Cellmark’s VNTR proceedings that the district court conclusion Lindsey’s proposition that individ- for existed Frye and satisfied the standard under both ra- marry others similar ethnic or uals CRE however, Lindsey backgrounds, cial offered Assuming arguendo that the trial endogamous marriage only speculation that analysis appeals’ court and court of differed linkage disequili- Hardy-Weinberg or caused parameters set from the People in Cellmark’s database. The brium Fishback, forth in reversal of the conviction effectively mating dеcisions countered Quintana, required. People not See comparable be based on these loci would (Colo.1994). Quintana, we ex P.2d 1366 bloodtype. mating based on Lind- decisions correctly plained when a trial court admits large sey’s experts hypothesized also albeit under an incorrect rationale homozygous appearing in frequency of alleles required a conviction. we are not to reverse evidence of sub- Cellmark’s database was Mathes, See also 703 P.2d equally grouping. The answered with (admissible (Colo.App.) evidence does not be experts who testified that this occur- reliable a trial court relied come inadmissible because frequency shorter alleles rence resulted from evidence), inappropriate on an rule of cert. gel during electropho- running agarose (Colo.1985); Jenkins, People v. denied resis. (A (Colo.App.1988) P.2d defendant’s misconception Lindsey under the labors not if a trial court conviction will be reversed of a scientific debate trans- that the existence although by an reaches the correct result general acceptance. into a lack of As lated cert, (Colo.1989). analysis), incorrect denied previously explained debate alone is insuffi- Hеre, analysis complex court’s previously the trial court had cient. Because subject not far from the matter was removed met, that the standard was ruled nearly years approach provided we two later. in the views of did not show shift Fish- Because we conclude that community we hold that result, contrary would not warrant a we back and statistical evidence was reject Lindsey’s argument. the trial level under the properly admitted at evidence is admitted dis- Once Frye test. putes reliability go weight. its to its over Fishback, at 892. In See 851 P.2d Allegations C. of trial court explained challenges implementa- to the we error accepted techniques go tion and execution of Id. at 893. Lindsey argues that errors in the tri of the evidence. Here, analy- Lindsey’s much of attack appeals’ legal court of focused al court and the procedures, including the size of requires exclusion of the DNA evidence Cellmark’s ses specifical database and whether the sam- of his conviction. He Cellmark’s and reversal truly ran- ruling pling of a Detroit blood bank was ly questions the court’s to admit the alleles, any all maximum theoretically for individual maximum occurrence of allele within corresponding considering origins. populations increase in without ethnic gеnotype. duplication Application ceiling principles of the entire results in the anticipated.” Barney, Cal.Rptr.2d 10 Lindsey challenged Cellmark’s have dom. also criteria, problems existed with alleged Barney 744. The court on the Le- focused questioned electrophoresis processes and its wontin-Hartle, Chakroborty-Kidd debate quality of database autorads. Cellmark’s magazine in in featured Science late 1991. go questions In these to Cellmark’s our view Cal.Rptr.2d at 740. As a Id. 10 result the frequency analysis, implementation of DNA probability statistical evidence was excluded. by jury. properly considered Soto, recently, People Id. Most v. 30 340, (1994), Cal.Rptr.2d Cal.App.4th 35 846 typing of DNA evidence D. Current status changed the court direction and concluded Finally, Lindsey argues that er testimony regarding probabil random match might admitting ror in the DNA evidence Soto, Kelly requirements. In ities met the ‍‌​​‌‌​​​​‌​‌‌​‌‌​​‌​​‌​​​‌‌​​‌​‌‌​‌‌‌‌‌​‌​​​​‌‌​‍intervening if “in have been harmless rejected Barney analysis the court ex gener period, those have become plaining, showing that “[w]e now have data ally accepted.” Lindsey relies on the articles population substructuring ‘forensically is not in which courts have listed above and cases significant’ estimating the random likeli See, e.g., rejected probability evidence. рarticular profile.” (citing hood aof Bible, 549, Ariz. P.2d 1152 State v. 175 858 2). IA, report, p. by FBI Vol. As evidenced — (1993) (en U.S. -, banc), cert. denied these cases the debate seems to have turned 1578, (1994); 221 114 128 L.Ed.2d Peo S.Ct. questions full circle as are resolved scientific 798, Barney, Cal.App.4th 10 ple v. 8 Cal. People are refined. See also Porter, (1992); Rptr.2d v. 731 United States Wilds, 636, Cal.Rptr.2d Cal.App.4th v. 31 37 (D.C.App.1992). 618 A.2d 629 (1995) (concluding “blight” 351 that the in the Lindsey suggests, As the debate over the landscape general accep over the subgrouping briefly enveloped the effects of genetic profiling has tance evidence community. trilogy A of decisions passed); People Venegas, but see v. 31 Cal. appeal aptly illus from California courts (1995) 234, 856, App.4th Cal.Rptr.2d 36 867 trates the evolution the statistical (agreeing genetic profiling Axell, Cal.App.3d 235 debate. generally probability evidence are 836, (1991), Cal.Rptr.2d 411 a California admissible, finding FBI but that the failed to appeal comparison RFLP court of held both perform analysis accepted accordance frequency using product calculations methodology). Kelly analogue [California’s rule met Frye requirements despite ongoing then ] Moreover, calming DNA waters of the regarding debate Cellmark’s community. Re- is evident in the scientific (“[T]he Axell, analysis. Cal.Rptr.2d аt 431 Lander, cently, longstanding Erie critic of by prosecution showed that the method used probability analysis in forensic the use of in this case to arrive at its data Cellmark joined Budowle to with Bruce probabilities general base and statistical Eric S. Lan- declare the debate over.27 See community. Any ly accepted in the scientific Budowle, Fingerprinting der & Bruce question or criticism of the size of the data (Oct. Rest, Dispute Laid to 371 Nature 735 pertains or base the ratio 1994). explain The article was written to admissibility.”). The evidence and not to its debate that continues to that “the academic Barney, following year, 8 Cal. genetic is root- population swirl about issues (1992), App.4th Cal.Rptr.2d misunderstanding report ed in a of the NRC debate over the court concluded that is, case, practical any of no conse- “progressed reliability data had Bu- quence to the courts.” Id. Lander and point on the continuum of scientific to a agree pastime” of re- dowle the “harmless the Axell court nor the debate which neither hashing within the academic present in the cases could old debates two trial courts Technology and Forensic Science 143 Lander's articles DNA Fin- 32: DNA (1989), relied on Trial, (June proposition support that statisti- gerprint 339 Nature 501 1989) accept- Population are not Genetic Considerations in cal match calculations Banbury Report typing, ed. of DNA the Forensic Use (2) subdivision, legal sys- group either ethnic has not benefitted geographic region, U.S. within tem. major group population does not sub- developments influenced significant Two stantially affect forensic estimates of opposition to the Lander’s retreat from his the likelihood of occurrence of a DNA settings. typing in forensic use of DNA profile; that fo- First is the NRC recommendation (3) that likelihood of oc- estimates ceiling alternate scientists use the rensic using major profile currence of a DNA probabili- match to calculate random method population group (e.g., databases Cau- use of much more ties. He observed casian, Black, Hispanic) provide a and parameters match did not cre- conservative greater range frequencies than of corresponding reduction random ate subgroups ma- would estimates for of a calculations, explaining therefore, jor population category; product typically gives rule “[w]hereas estimate of the likelihood of occurrence - genotype frequencies of about 10 four-locus profile by of a DNA dеrived the cur- -9, ceiling principle pares them 8 or 10 practice employing multipli- of rent That back to about 10 -6 or 10 -7. extreme using general popula- cation and rule assumptions ceiling principles] have [under frequencies tion databases for allele is only power of so little effect underscores reliable, valid, meaningful, and without taking a typing DNA and the wisdom of forensically significant consequences; approach.”28 conservative major is the Federal (4) The second event support that the data do not the need (FBI) Investigation’s completion of Bureau of procedures, for alternate such as the population surveys (NRC recommended ceiling principle approach Re- report. The FBI has studied 25 dis- 1992), NRC port deriving for statistical esti- (Bu- subpopulations, separate tinct as well as 50 profile frequencies mates of DNA samples Population. 1993b, from the U.S. See Unit- dowle et al. 1993a and submit- Justice, ted). Dept, of ed States Federal Bureau Investigation, Population A VNTR Data: Justice, Dept, United States Federal Bu- (1993). Study, study, Lander Worldwide Investigation, Population reau of I-A VNTR only explain, and Budowle observed modest (1993). Study Data: A Worldwide analysis variation loci used forensic Thus, reject Lindsey’s we contention among groups, empiri- ethnic and indicated “rage”. the debate continues to We are cally rarely that random matches occur. The typing mindful that DNA will continue study concluded: evolve will be refined. (1)that population there are sufficient processes The refinement of the scientific typing require

data available to determine whether involved DNA does not us forensically significant prior analyses not differences to rule that are inval- might using popu- place occur when different id. To do would so courts at bases; caprice progression preclude lation data of scientific ceiling principal principle 28. Lander and Budowle focused on six 4. The is so conservative hampers that it the courtroom objections ceiling princi- raised to the use of the fingerprinting. ple: ceiling principle actually guar- 5. The is not ceiling principle premised on the 1. The is anteed to be conservative. analysis flawed of Lewontin and Hartl that report causing finger- 6. The NRC is significant population is a substructure. there printing cases to be thrown out of court. ceiling principle scientifically is 2. The objections The article answers each these populations concluding ceiling flawed because it is not used in that debate over use of the Moreover, genetics. plan sample principle purely academic. "The most ex- 10-15 positions range treme magnitude: over mere two orders of representations is unsound. population frequency whether the ceiling principle 3. The makes ludicrous as- stated, typical genotype four-locus should be sumptions possible about the substructure of a example as 10 -5 or 10 -7. The distinction is population. irrelevant for courtroom use.” Id. trial, gen- was admitted at based date this evidence admissibility of valuable evidence erally accepted the relevant scientific com- on those theories But, majority munities.” Id. at 893. as the time of trial. accepted at the recognizes, [regarding “the debate analysis] crystallize until late did not V. rulings year evidentiary after the over one summary, the trial court we find that Maj. [Lindsey]_” op. legiti- at 291. We analyzed evidence used in mized the statistical methods applica- and that under v. United States Lindsey by in Fishback. The our decision People, P.2d 884 tion of Fishback v. unchanged of scientific evidence be- state (Colo.1993), produce not a different would Lindsey’s hearing motion in limine tween Further, we find that the existence result. evidentiary hearing causes most Fishback’s not, itself, require of scientific debate does majority beyond opinion to extend or Fish- exclusion scope of the issues in this case. frequen- hold that DNA statistical back. We Fishback, In “to trial courts the we left the analysis generally accepted by cy was the of whether ... the initial determination all to times relevant calculating frequen- the statistical method for trial court’s decision to admit the DNA the cy of a declared match remains judgment typing evidence. The of the court Fishback, accepted.” P.2d at 895. How- appeals is affirmed. ever, limited to a this determination was which have occurred consideration “events J., ERICKSON, only, concurs in the result subsequent trial [in ]....” to the Fishback LOHR, J., joins in the concurrence. added). (emphasis time lines of Id. The MULLARKEY, J., in concurs the result evidentiary findings establish that both cases only. simultaneously, almost so no sub- were made developed in sequent scientific debate time to concurring in Justice ERICKSON the our in Fishback or cast a shadow on decision only: result change analysis. our Because a reason to view, my In facts in case do not this presents no the context of this case subse- establishing support new standards or rules consider, quent information to the result relating of DNA evidence. to the admission determined, purely simply, on should be by in is Fish The result this case controlled to the facts of of Fishback (Colo.1993). People, back v. 851 P.2d 884 this case. granted to review whether We certiorari techniques employed to calculate the sta- LOHR, J., joins in this concurrence. frequency of a declared match in a

tistical concurring in the MULLARKEY Justice typing DNA case related only: result admissibility. not its As the evidence and notes, majority evidentiary time frame of case, majority judg In affirms the this present Fishback and the case is almost iden- admitting appeals DNA ment of the court of Fishback, maj. op. at 291. In tical. See majority applies The typing evidence. evidentiary hearing conducted in Octo- was set of scientific evidence test for Fishback, at 891. ber 1989. See 851 P.2d States, F. 1013 Frye in v. out United evidentiary hearing in Lind- The most recent (D.C.Cir.1923). adopted test with We this sey February In Fish- occurred typing in Fishback respect to DNA back, general acceptance we assessed the (Colo.1993). Because People, 851 P.2d 884 underlying theory and utilized my position in Fishback prior I to adhere stamp typing with a time of October relevan rejecting Frye, apply and would id. of 1989. See Supreme Court cy endorsed standard Pharmaceutical, Dow techniques employed in in Daubert Merrell “that the We held -, 2786, 125 L.Ed.2d - U.S. 113 S.Ct. ... to calculate the statistical [.Fishback ] (1993), only. were, in the result I conсur as of the of declared Fishback, expert testify proposing the defendant was convicted whether In (1) (2) knowledge assault, that will degree degree sexual second of first the trier of fact to understand or assist mandatory violent burglary, and sentence determine a fact issue. This entails a case, test results and sta- crime. As this preliminary of whether assessment tistical of the defendant’s blood reasoning methodology underlying or compared with DNA taken from the scientifically testimony is valid and of presented at trial. This evidence victim were methodology reasoning or whether indicated that alleles found the defendant’s applied can be to the facts in samples matched those found taken issue. moved to from the victim. defendant at -, at 2796. Id. 113 S.Ct. suppress the The trial court ruled evidence. the DNA evidence was admissi- Daubert, some of the relevant fac Under majority (1) ble under and the affirmed. for a trial court to consider are tors methodology can be whether my opinion concurring in the result (2) tested; subjected it has whether been that, majority, pointed reached I out (3) peer publication; review and the known premised because on the erroneous (4) error; potential degree rate of assumption discovery that once а scientific general acceptance methodology. so, “generally accepted” becomes it remains at ---, Id. 113 S.Ct. at 2796-97. provide certainty or does not ease cross-examination, “Vigorous presentation of decision-making. 851 P.2d at 897 evidence, contrary careful instruction result). (Mullarkey, concurring J. in the proof the burden of are the traditional and Furthermore, prob- there are other serious attacking shaky appropriate means of but applying Frye, lems such as “courts’ incon- at -, admissible evidence.” Id. 113 S.Ct. characterizing sistencies evidence as ‘sci- at 2798. entific,’ difficulty identifying the relevant case, In this of the field, ambiguity as to what required majority give test has to de- ” ‘general acceptance.’ constitutes Id. cur- tailed consideration the merits Then, now, my primary as dissatisfaction concerning population rent academic debate unduly is “its restrictive treatment genetic issues. The outcome of this debate evidence, excluding of novel scientific testi- results in a statistical difference of a mere mony may strong support have within magnitude in two orders of the context of ‘general- the scientific but not be probabilities of which the random ” Instead, ly accepted.’ apply I Id. would roughly most conservative estimate is one in relevancy test for the admission of such evi- 1,000,000 10,000,000. Maj. op. to one in pursuant dence 702. CRE Under agree majority I 293. with the that such fine test, long proffered “[a]s as the evidence is practical consequence distinctions are “of no support, although may reliable and has there (quoting courts.” Id. Erie to the S. Lander field, controversy in be such Budowle, Fingerprinting Bruce Dis- & evidence would be admissible.” Id. at 899. (October Rest, pute Laid to 371 Nature 735 1994)). I made similar observation Shortly opin after we issued our Fishback P.2d at 900 n. 3. Fishback. See 851 ion, I the standard recommended was Daubert, majority, adopted by Supreme I would admit the Court Unlike — at -, question U.S. 113 S.Ct. 2786. Dau- DNA under the bert, test, relevancy the Court held that the test had test of CRE 702. Under that displaced by been the Federal Rules of Evi because this evidence is reliable at -, relevant, jury I would dence. Id. 113 S.Ct. at 2794. The leave that, 702,29 any specified significance such Court Rule determination judge critiques underlying methodology as must determine: language identical Rule of the rule that does not involve constitutional issues, ‍‌​​‌‌​​​​‌​‌‌​‌‌​​‌​​‌​​​‌‌​​‌​‌‌​‌‌‌‌‌​‌​​​​‌‌​‍29. The of CRE 702 is Supreme high- Court's construction is 702 of the Federal Rules of Evidence. While we by Supreme ly persuasive. are not bound Court construction weight of jury’s evaluation part of the

the evidence. Petitioner, YARD,

DELTA SALES PATTEN, Respondent.

Pepper

No. 93SC699. Colorado,

Supreme Court of

En Banc.

March

Woodrow, Carey, Frank J. & Roushar Montrose, Woodrow, petitioner. Gen., K. Norton, Atty. Stephen A. Gale Gen., Timo- ErkenBrack, Deputy Atty. Chief Gen., Lip- P. Simon thy Tymkovich, Sol. M.

Case Details

Case Name: Lindsey v. People

Court Name: Supreme Court of Colorado

Date Published: Mar 6, 1995

Citation: 892 P.2d 281

Docket Number: 93SC167

Court Abbreviation: Colo.