*1 Mich 470 425 (AFTER REMAND) PEOPLE v YOUNG 8). (Calendar 4, Argued No. Decided No. 67373. June Docket 5, 1986. August jury Alpena Jeffrey Young in Circuit a A. was convicted Glennie, J., Court, first-degree felony Philip of murder. P.J., Appeals, Holbrook, D. E. 44489). Cavanagh, F. and Court of M. (Docket JJ., Piercey, No. The Su- Jr., affirmed Court, preme retaining jurisdiction, the case to the remanded evidentiary hearing an to determine whether trial court for technique serological electrophoresis, blood-analysis had a general guilt, to infer the defendant’s has achieved been used among acceptance impartial and disin- for scientific community. experts Mich in the scientific terested remand, joined opinion by Levin, Justice Chief After an Supreme Court Brickley, Justice and Justice Williams held: serological acceptance reliability of scientific General impartial among electrophoresis bloodstains community experts has not been disinterested scientific electrophoresis evidence error established. Admission harmless, requiring clearly new remand which was charge second-degree trial murder. on the evidence, 1. In to be admitted as the results blood order using technique serological electrophoresis analyses must enjoy reliability among general acceptance for be shown to experts impartial community. and disinterested scientific case, prosecution, in this to fulfill its burden of failed establishing acceptance. presented such dis- Evidence revealed agreement community regard within the scientific analysis method of used and the effects of contaminants at disagreement samples. unlikely crime scene blood thin-gel independent until be resolved validation studies of undertaken, analysis multisystem comprehensive control run, evaluating tests the effects different contaminants are References 370, 2d, 1104,1147. Jur Am Evidence §§ weight, blood-grouping Admissibility, sufficiency tests criminal cases. ALR4th 500. subjected scrutiny to the and the results have been Thus, community. results of not have been admitted. should admitting analyses *2 the blood in the results of 2. The error clearly Test results were inconclu- this case was not harmless. inconsistent, experts testimony of the differed and the sive or widely. remaining was of a nature that but for evidence resulting serological electrophoresis, the from the the evidence might jury doubt. have had a reasonable remanded. Reversed and dissenting, joined by Riley, stated that Boyle, Justice Justice serological theory that both the of elec-
the record establishes application evidentiary trophoresis dried bloodstains and its acceptance particular gained general scientific field have Thus, prop- belongs. testimony at issue was which each erly admitted. reliability evidence need not be estab- of novel scientific scientists, by those whose livelihood is not lished disinterested technique. intimately a rule would with a new Such connected to forensic evidence and need- erect insurmountable obstacles evidence, excluding impede probative lessly of admission knowledge testimony persons in the field. who have the most of education, training, indisputably have formal Where witnesses testimony background discipline, their in a scientific Rather, ground disqualified on the of self-interest. should not be weigh and self- trial should a witness’ credentials court testimony. determining reliability the witness’ interest in Cavanagh part in the decision Justices and Archer took no of this case.
Opinion op the Court Serological — — Electro- 1. Criminal Law Evidence Scientific phoresis. serological electrophoretic analysis of Evidence of the results of at a was not admissible in a bloodstains found crime scene prosecution first-degree felony it was not murder because general accep- technique shown that the has achieved reliability among impartial experts tance for and disinterested community. in the scientific Dissenting Opinion Boyle, J. Serological — —
2. Electro- Criminal Law Scientific Evidence phoresis. application theory serological electrophoresis and its Both the Mich Opinion Court gained general scientiñc dried bloodstains have technique. acceptance as a reliable identiñcation Expert Testimony — — — 3. Law Scientific Evidence Criminal Reliability. reliability not be established scientiñc evidence need novel scientists, is not inti- disinterested those whose livelihood technique, mately and where witnesses connected with a new education, training, background indisputably have formal discipline, testimony disquali- their should not be a scientiñc self-interest; rather, ground should ñed on the the trial court determining weigh credentials and self-interest witness’ testimony. witness’ Kelley, Attorney General, Louis J. Frank J. Jr., General, Funk, Caruso, David M. Solicitor Prosecuting Attorney, Malinowski, and Leonard people. Attorney General, Assistant Bretz) (by Appellate State Defender Ronald J. for the defendant.
AFTER REMAND question presented, in J. The the words Levin, opinion of the sion of this of the Court on an earlier submis-
appeal, is whether "the results of serological electrophoresis [of dried general accep- bloodstains] have achieved scientific among impartial tance for and disinter- experts” community.1 ested conclude that the the scientific We
people have not established such general acceptance. scientific
i Jeffrey Young Defendant Allen was convicted of first-degree murder on evidence that the homicide during perpetration felony. was committed of a Appeals The Court of affirmed.
1 1, People Young, 25; v 418 Mich 805 NW2d People v Opinion of the Court felony described in the information was burglary. Young’s On the earlier submission of appeal Court, to this we held that at the time of burglary the homicide2 the term the section of defining first-degree the Penal Code the offense of "breaking entering murder meant of a dwell- ing nighttime house with an intent felony.”3 people’s commit a evidence tended to breaking entering show that occurred daytime.4 We further held that "the results of the blood analyses [not] were admissible at trial without a prior showing technique serological electrophoresis enjoys general acceptance scientific among impartial experts and disinterested . . .5 respond question
We declined to to the "whether analyses the results of blood are admissible to possible include an accused within the class of perpetrators” (emphasis original) "develop- until hearing ment of a record the trial court at the serological which we order to if determine electro- phoretic analysis general has achieved acceptance reliability, Frye States, for v United App (1923); 46; Davis, US 343 DC 293 F 1013 v (1955), 348;
Mich
which any, Davis-Frye here, if argument error "a beyond because doubt a reasonable harmless was guilt adduced of defendant’s other evidence at trial.”8 hearing jurisdiction.9 retained
We held admissibility was evidence the bloodstain of transmit- court, the record was and circuit require the circuit did not order ted to us. Our findings not do so. judge fact, he did file of Supplemental filed, the cause briefs were reargued.
ii accep- community’s Evaluating the scientific electrophoresis reliability of dried of tance presents evidentiary unusual some bloodstains working problems. of scientists The number agency police with electro- are familiar who evidentiary phoresis If small. bloodstains considered, the commu- alone were these scientists sampling nity a fair too small for would be larger opinion. num- is, however, a There using electrophoresis of nonforensic scientists ber evaluating capable who pre- electrophoresis evidentiary if bloodstains they fill the need to with the information sented experience. knowledge gaps in their own group groups of scien- two combined constitute large enough fair determination to make a tists bloodstains whether Young, supra People n 1 at 17. v supra People Young, n 1 at 24. v Young, supra n 1 at 25. *5 op Opinion the Court generally accepted by experts in the scientific community. establishing prosecution has the burden general acceptance community’s
this of the relia- electrophoresis evidentiary bility of bloodstains. disagreement case, In the instant there is within separate community on three issues: the length genetic particularly markers, of time that erythrocyte phosphatase (eap), acid can accu- reliability rately blood, read dried thin-gel multisystem analysis, and the effects of prosecution crime-scene contaminants. The did not respecting fulfill its the last issues burden two raised the defense. having only prosecution witness substantial
experience with unpublished relied on his bloodstains own observa- unpublished reliability study by and an tions the to conclude that the developer multisystem thin-gel multisystem analysis A was reliable. de- questioned reliability fense witness both the technique prosecution study. and the The other thin-gel witnesses were unfamiliar with the system, multi- and their conclusion about the any of the method was based on the study showing absence indepen- that it did not work. No dently supported reliability study conducted conclusion. Another defense witness said that community agree would not on the relia- bility supporting of that conclusion without better evidence. comprehensive
Nor have control tests been run respect to the effects of crime scene contami- testified, nants. Prosecution witnesses on the basis experience of their laboratory with bloodstains drawn under they identify
conditions, that can bacte- type contamination, rial normally if it least is of the They encountered. also claimed that bac- 425 Mich op Opinion the Court reliabil- has not affected contamination terial ity they electrophoretic have con- tests type however, of self-verifica- is, This ducted. the scientific com- inconclusive considered tion any munity. indicate does The record soil and on the effects done has been work reliability of elec- contamination chemical trophoresis. *6 community’s that conclude We electropho- reliability acceptance
general of estab- has not been bloodstains resis of Reliability remains case. in the instant lished dispute questions because and unresolved likely questions to be are not unanswered. electrophoresis and the answered evidentiary indepen- until established bloodstains thin-gel dently on the studies validation conducted compre- analysis multisystem and undertaken are evaluating of dif- the effects tests control hensive run, have and the results contaminants ferent scrutiny subjected the scientific to the been electropho- produced by community. The evidence should, therefore, have been admitted. not resis admission of that the erroneous If it clear were prejudiced electrophoresis evidence had required. defendant, not be a new trial would case, however, clear the it is not In the instant only testifying witness error was harmless. this trial said that about technique re- and that the test was reliable new percentage only a small sults showed protein subtype population could have had the at the crime found the blood abo combination clearly appear the other It does not scene. prosecution have would offered evidence dispelled jurors’ doubts all reasonable minds. Opinion of the Court
III Mitchell Lechtanski was last seen alive at 8:00 on 1978. At 11:00 May Lechtanski’s A.M., a.m. housekeeper house entered his and found its con- She immediately tents disturbed. left and called At police. 11:30 officers a.m., police entered house and found Lechtanski’s There a body. amount blood. The great scene was secured and assistance summoned. 1:30
At found a trail p.m., detective of blood leading from an Lechtanski’s driveway intersec- parking tion near lot. Bloodstains were also porch found the floor of the rear aon stairway near a window that had apparently been gain broken to house. entry At 3:55 p.m., Laboratory State Police Crime personnel A laboratory arrived. scientist used a damp cloth to samples obtain dried blood from sidewalk, porch. stairway, Detective Stolo- row received the stains at the end of May. accompanied stains were a description brief location "the from which that blood was collected *7 electrophoretic The first testing was conducted on 5. June Electrophoresis physical is a method for the separation through biologically important proteins the use electric current. Proteins are complex
very positive, which molecules assume negative, charges, or neutral depending on the in placed. solution charged which they are When these placed
molecules are appropriate an subjected field, medium and an they electrical migrate pole will opposite toward the charge. size, proteins shape, Blood in vary density, charge; consequently they and retic vary electropho- Therefore, mobility. electrophoresis, after Mich Opinion of the Court separated they supporting on the distinct bands into medium.[10] patterns form characteristic The distinct bands protein subtypes. that reveal pro- samples five different were tested for The phosphoglucomutase esterase teins: glyoxylase (esd), (pgm), d erythrocyte phosphatase acid (glo), genetic (np). haptoglobin Three of and (eap), simulta- markers, esd, neously were tested glo, pgm, gel thin-layer multisystem using starch genetic analysis. were markers other The two individually. tested interpretable result, yield it can no or
A can test protein. specific subtype Protein of a reveal give testing, blood-type testing, does like abo "yes-or-no” rather, insufficient answer, indicates (i.e., provides subtype for information, or it pgm l, pgm: pgm or 2, o; ab for pgm, a, b, abo: 2-1). PGM electrophoresis of the dried bloodstain on interpretable yielded stairway for no results question. genetic markers all five as of the sidewalk stain were results of the test type activity no for follows: b for detectable glo, Hp eap (the reported run as inconclu- was first (the sive), type type pgm first 2-1 for 2-1 for esd, inconclusive). reported The results of run porch follows: no stain were as detectable type type activity type 2 for Hp, for for glo, eap, B (the ques- reported as a 2-1 first run was esd type type pgm. 1 for 2-1 for tionable esd), repeated even if there had been tests were not test inconsistent readings._ 10Grunbaum, Analy and Limitations of Forensic Blood "Potential sis,” Blood and for Forensic Individualization of Human in Handbook Jonakait, Bloodstains, quoted blood tell? Genetic markers Will cases, Emory L J criminal *8 People v Opinion of the Court protein subtypes The from the sidewalk porch Young, stains matched those of but not those of Lechtanski. trial,
At Detective Mark Stolorow testified that percent population less than 1.3 of the has the protein subtype and abo combination found percent sidewalk stain and one-half of one has the subtype porch and abo combination found in the stain.11
IV appeal, On the first submission of this this Court precedent unequivocally said that as "unanimous party offering demonstrates, novel scientific demonstrating general evidence has the burden of acceptance reliability among impar- scientific experts tial and disinterested before the evidence may be admitted.”12 general acceptance designed "pre- rule is jury relying unproven
vent the
from
and ulti-
mately
recognizes
unsound scientific methods.”13It
jurors
"scarcely” prepared
to evaluate
"complicated,
testimony concerning
scientific
theory
operation
devices
the face of a
opinion
difference of as to their accu-
racy.”14 Leaving the decision to disinterested and
11People Young,
323,
App
327;
(1981).
v
106 Mich
basis for regard potential in this case with error age marker, obtained, the fabric from which it was *9 425 Mich Opinion op the Court community impartial experts as- scientific the qualified the relia- to assess those best sures Although bility re- do so.15 of a scientific method currency technique quiring the "attain sufficient to general acceptance gain of the to the and status relevant some inevitably community” creates scientific type proof delay of the of in the admission delay technique, supplied by necessary thy.16 is the deemed a new technique is trustwor- to that the assure v hearing evidentiary the the to determine At particular going of test or other factors to the foundation used opinion, expert to the these factors be evaluated the trial court are determining of admissibil- its traditional function prelimi- ity, MRE 104. If the test results are determined admissible, affecting weight narily ity finder. and credibil- to be facts the course, opinion placed may, of before the fact- of the Post at 521. general approach the of the is not consistent with rationale That substitutes, technique acceptance a new scientific involved, test which where judge jury general opinion of scientific for or the crucible expert competing witnesses in the belief assessment of claims judge confidently rely jury that rately on a to resolve accu- one cannot or dispute concerning legitimacy technique. a a new events, permitted judge jury then if In a or were to be to make all reliability, Frye test would in effect be determination overruled because jury judge then a or decide that a new could regard technique was it achieved reliable without whether had general acceptance. scientific opinion opinion have Both this for affirmance examined technique considerable detail this new scientific offered believe and the evidence competing experts. have so not we We done because competent technique that we new to decide whether the reliable, concerning extent but rather indicate the of the scientific debate reliability, determining difficulty its which correct, acceptance competing claims is and the need continued reliance general efforts, judge despite jury, scientific a the best of lest perceive technique flaw new fail fundamental in a objective scrutiny would reveal. 15 Giannelli, Frye admissibility novel v scientiñc evidence: (1980). States, 1197, 1207 later, half-century United Colum L R Addison, 199, 201; App United States v 162 US DC 498 F2d Young (After Rem) Opinion of the Court electrophoresis evidentiary blood- prosecution presented stains, witnesses, seven presented pros- defense two witnesses. The presented each ecution and defense one forensic having experience scientist elec- substantial with trophoresis bloodstains. Three prosecution’s other witnesses defense wit- geneticists, electrophore- ness were familiar sis, but unfamiliar with of eviden- tiary prosecution bloodstains. The other three wit- technicians, nesses were time two of whom were full- employees agencies. lawof enforcement Be- analyzing fore their conclusions is first neces- *10 sary to determine whether some all of them are impartial experts partic- "disinterested and ular field.”17 understanding essential, a
Because theoretical community the relevant scientific scientists experience pro- technicians.18 Practical with the necessary.19 Ideally cess, however, is also the com- munity empirical would be scientists with direct experience procedure question. with the in description.
Two of the witnesses fit this
Dr.
George Sensabaugh
professor
is an associate
public
University
health at
of California at
Berkeley
specialist
and a
in forensic science. He
electrophoretic
has also conducted
studies of dried
Benjamin
bloodstains. Dr.
Grunbaum is
retired
a
University
biochemist from the
of California with
specialty
criminalistics,
in
the science of identifi-
physical
cation evidence in criminal
He
cases.
17People Young,
5,
Barbara,
supra
27;
358;
supra
v
n
People
1
at
at
Tobey, supra
v
at 147.
18Barbara, supra
People
Brown,
at 377. See also
v Greenwood
512, 530;
637,
(1985). ("The
645;
Cal
Rptr
3d
220 Cal
has been body-fluid enzymes electrophoresis test ment of to purposes of forensic identification.”20 part Sensabaugh appear to abe Grunbaum doing community scientists work of electrophoresis small bloodstains.21 community will- this of scientists within number ing testify Grunbaum, Sen- even smaller. to seems police sabaugh, Stolorow, the detective and Mark case, the instant who did the figure prominently reported in- cases the few volving electrophoresis evidentiary bloodstains.22 reflecting might cases be described Those reporting and Grun- a debate between Stolorow baum. argument that neither Grun-
An could be made Sensabaugh im- disinterested and nor baum despite partial, therefore be excluded and should expertise. was the leader their Grunbaum . sought develop a bloods- team of scientists that analysis system for use in crime laboratories. tain He
brought
in Brian
and Stolorow to
Wraxall
project.
expressing
After
dissatisfac-
work on the
Brown,
supra,
4.
n 18
Cal 3d
n
Greenwood
21 Jonakait,
supra
at
invited Brian Wraxall
n
853. Grunbaum
join
University
and Mark Stolorow
Berkeley
him at
California
develop
Sensabaugh
multisystem.
has
collaborated
Court,
its
with Wraxall. As the defense commented in
brief
this
*11
"appear
only
[independent]
Sensabaugh
and
Grunbaum
to be the
such
country
regard
to
electro
scientists in the
phoresis.”
with
bloodstain
State,
23, 24;
App
See
v
168
SE2d 413
also Graham
Ga
308
(1983) (Deen, J., concurring).
22
Brown,
(Grunbaum
supra
Greenwood
n 18
testified for
de
fense,
publications
Sensabaugh’s
by
support
the court
both
cited
Pearson,
906;
prosecution
(1984) (Grunbaum
defense);
P2d
State v
234 Kan
678
605
defense);
Washington,
testifying for the
State v
229
(1981) (Stolorow
state,
47;
Kan
defense); People
(Stolorow
Nevertheless, degree certain of "interest” must if tolerated scientists familiar with the theory and practice of a new technique are to at testify all. The developed standard by this Court whether expert’s "livelihood inti- was not mately technique.”24 connected with the new consultant, pay, Grunbaum is also a but without to a crime laboratory. 145; Barbara, 358, Tobey, supra supra at at 376. opinion The author of the for affirmance states that she does "not test,” Frye "reject advocate that this Court abandon the but would requirement that the of novel scientific evidence must witnesses, Barbara, People be established disinterested v 400 Mich 352; (1977), People Tobey, 141; NW2d v 401 Mich (1977), is, 'intimately NW2d 537 connected with the new that the author does not "see a basis for those whose livelihood is not ” technique.’ opinion Post at 511. The adds expansion of the rule.” Id. intimately The words "livelihood is connected the new tech- rule,” nique” Court in "expansion axe not an but were stated this Barbara, supra as follows: expert experi- While one would not want an witness without field, want, background
ence or where the task was to demonstrate ity, techniques by in the technical one would general acceptabil- acknowledgment an of the device and the value livelihood disinterested scientists whose intimately connected with it. *12 Mich Opinion the Court of the Kearney, James of Stolorow and livelihood serology the directs who prosecution witness fbi the new connected intimately is laboratory, People v by repeated this Court reaffirmed and These words were supra Tobey, at 145. by may trier be considered the a witness While the interest of self- assessing credibility, follow that the witness’ it not does fact in general question has been whether there not on the does bear interest scientific acceptance. acceptance the general established on be To scientific allow intimately livelihood connected testimony whose alone witnesses safeguard technique the of scientific would eliminate with a new acceptance general test. community approval implicit in the scientific devel- community approval those who have is absent where Scientific oped technique nique. depends reputation on use of the new and whose livelihood and self-certify, validity certify, tech- alone in effect Barbara, People supra by at v 358: stated this Court As impartial testimony by and ex- was no disinterested There psychological] perts particular [physiological "in the field and test), belongs” (Frye thus demonstration of no in which (Michi- recognition [polygraph] "general such tests” scientific rule). gan adopt testimony persons If view that this Court were to developed reputation depends on who have and whose and livelihood technique supports admissibility, the use of a new alone then disciples developer and his would be substituted for views of opinion scrutiny marketplace general scientific Frye test would eliminated. substance opinion for affirmance states: intimately . . . "livelihood connected with the new tech- represents regressive nique” opments approach test to scientific devel- which, parenthetically, opin- would have devalued the Salk, Einstein, Curie, ions of Jonas Albert or Marie each of work, livelihood, standing professional whose life in their community intimately new connected with a procedure. [Post 515.] vaccine, work, subjected Salk’s Curie’s and Einstin’s theories were painstaking analysis to of the scientific Salk, they nity experience the most and extensive countless members community they regarded before were as reliable. Curie, accepted pantheon and Einstein have been because passed rigid acceptance general have test of commu- scientists, simply self-verifying on the basis of studies. The (see paraffin with the test and the Daikon Shield n 54 and text) accompanying again relevant. Young (After Rem) Opinion of the Court technique. The livelihood of Grunbaum and Sensa- baugh intimately is not so connected.25 community having of scientists direct em- *13 pirical experience tiary electrophoresis with of eviden- "sufficiently large bloodstains does seem not Frye objective receiving so that the of a consensus judgment community of the scientific can be community met.”26 The of nonforensic scientists using electrophoresis enough large is, however, adequate sampling opinion. obtain an of scientific These scientists have sufficient theoretical under- standing practical experience and able to geneticists testifying evaluate the evidence. The prosecution for the and the defense are therefore community having in the relevant of scientists experience explain experience, electrophoresis.27 They only with need gaps knowledge in their own general agreement
and reach about using they of the information are gaps, respected. judgment fill these their to be
vi
precise
The
issue in
instant
is
case whether
electrophoresis
evidentiary
passes
of
bloodstains
expert
require
testimony
Other
do not
from
states that
"disinter
impartial” persons
testimony
ested and
relied on
have
of law
State,
employees.
Special
In
enforcement
v
the Court of
Robinson
Appeals
electrophoresis
Maryland
solely
admitted
based
evidence
police
testimony
department
of a
forensic chemist who said
electrophoresis
accepted
by
generally
that
chemists. Robinson
is
forensic
reliable
State,
558, 574-576;
App
ble.28 complications, par- presents, however, a number ticularly in- conducted complications the bloodstain stant case. not analysis, thin-gel multisystem fresh, it is tested possibly importantly, and, has most exposed to unknown contaminants.29 been
A testing genet- paternity Electrophoresis for generally done on fresh blood. ics research is Electrophoresis for the stains is part *14 "There differ- on dried is no most ence in done blood.
methodology from fresh blood to dried preparation samples except in of the and blood interpretation be in extra care that must exercised degraded of material is studied.”30 results when important not The fresh, difference is that blood is begins degrade
and blood as soon as Brown, supra, also See Greenwood n 18 where said: the court Here, dispute seriously defendant does not the scientific validity genetic typing general. Rather, in Dr. tests he and large body suggests Grunbaum focus on the that of literature which drying, aging, temperature, (particularly contamination substances), organic with bacteria or other and unknown com- position sample of the test often encountered —conditions varying degrees. forensic work—can affect test results in The suggests standard, proven, accepted defense dology that no metho- dangers. exists to avoid these problems figure Some of these to a lesser extent in nonevidentiary stains. 30Grunbaum, Phenotyping Genetically "Procedures for Con Enzyme Systems,” trolled and Protein in Handbook for Forensic 51, 108, quoted Individualization of Human Blood and Bloodstains at Jonakait, supra n 10 at 842. Young (After Opinion of the Court body.31 question leaves the the marker detected in The "crucial is whether
aged blood ais reliable indication that found in fresh blood from the person.”32 dispute same centers on the results test. eap possibility misreadings The defense raised the aged caused ing the deterioration blood. Accord- degrades very rapidly. to Dr. Grunbaum blood system, problem In the is said be eap patterns particularly banding acute, because types b, c, for the and cb are similar. In the typed case, instant though the sidewalk stain was b al- reading originally the was inconclusive. suggested Grunbaum that band of the ba type through resulting decay could lost in a ba prosecution Testifying like a b. looked agreed degraded Sensabaugh might that a have ba typed change been but he said the would b, signal response itself. "if Grunbaum’s the A degrades you a . . . faster there can be time where only isoenzyme, you will see will see b isoenzyme, you the A type will miscall this as a explanation given by Sensabaugh b. here guidelines identify [sic] there is some this really degraded still as a do not hold in mate- ba, namely seeing secondary rial, because B, degraded clarity material of these bands very and the resolution is obscure.” question deterioration was addressed eap Washington, 47, 55; State v 229 Kan P2d The witnesses were Grunbaum and testifying prosecu- Stolorow, for the defense and *15 respectively. rejected tion, The court Grunbaum’s Brown, noted, supra, See Greenwood n 18 where the court "The problem sample urge concede the deterioration . . . [but] [genetic accepted that testing for forensic those markers] most resistant to adverse conditions.” 32Jonakait, supra n 10 at 879. Mich Opinion of the Court saying, different contention, used a "Grunbaum separate produced two State [and] medium showing contrary pieces of evidence eap —that (Emphasis sup- rapidly . . . not deteriorate did plied.) suggested that first A has commentator interesting, particularly since Grun- "assertion published has that false work shown baum’s eap positives are obtained on both mediums —cellulose gel.”33The commen- and starch membranes acetate counting continued, court’s of evidence "the tator may wrong.”34 appears It that "it was have been contradicting pieces Grun- of evidence two piece given, one under that but rather baum were "piece” guises.”35 was the evidence two isoenzymes study showed that "Denault” eap laboratory-pro- correctly identified dried can up for to thirteen weeks.36 duced bloodstains degraded samples criticism Grunbaum’s appears reliably typed also to be based cannot be study: on a limited samples, four different known Grunbaum took portion dry each to under ambient
allowed up to conditions and heated remainder samples subjected to 48 h at 37°C. All were then identified four skilled tech- samples, correctly nicians. Of the dried two were technicians, sample identified all four a third technicians, correctly by three was identified reaching the fourth no as to technician conclusion sample iden- isozyme. correctly The fourth by one Two to iden- tified tify technician. were unable it, it. and the technician fourth misidentified 33Jonakait, supra n 10 at 904. 870, n 120. Id. at Id. at n 120. 36Denault, Kwan, Takimoto, Palios, Detectability Crim & of se genetic aging, Forensic lected markers in dried blood 25 J Sciences *16 Young (After Rem) 489 op Opinion the Court Only samples one of the heated blood was cor rectly by all identified four technicians. One sam ple correctly twice, was identified misidentified sample twice, and not identified twice. last was misidentified three technicians and not pointed out, identified one. As authors treatment of neither the bloodstains nor the liquid compared heated as blood extreme highly real life situations. The technicians were yet isozymes they trained, misidentified 7 out 32of times, for an rate of error Furthermore 21.8%. correctly they the isozymeonly identified the 53.1% time.[37] Despite sample small in used Grunbaum’s Sensabaugh research, cited Grunbaum’s work as authority in in warned, "[t]he an article which he isozymes are more labile the 'b’ 'c’ than 'a’ isozymes; heterozygotes thus in ba the more labile isozymes may giving electrophoretic lost, be an 'a’ pattern looking homozygote. like ... It would 'b’ good understanding be to have a better of how the biochemistry of this marker dictates its behav- ior.”38 study,
The Denault which was also cited Sensabaugh’s thorough study.39 article, was a more perusal
A of the literature further the the clarifies dispute writing A field. scientist before study appeared Denault concluded "the en- [eap] zyme particularly stable in dried bloodstains they and hence have to be not more than 2-3 typing. weeks old successful Older can stains 37Juricek, misapplication genetic analysis sci forensic (1984). ence, Jonakait, Compare supra 29 Forensic J Sciences n 10 905, describing appear at what same tests. 38Sensabaugh, polymorphic enzymes Uses of red cell forensic science, 185, Haematology 10 Clinics in 39Jonakait, ("The supra group n 10 . . . has [Denault] thorough study aging made the most of how conditions affect n persistence .”). genetic . . markers Mich Opinion op the Court
give spurious the instant results.”40 stain scien- old. Another less than three weeks case was tist who did it could be misread study type cb concluded case eap suggest, type He did c. pitfalls however, associ- that an awareness of help degraded samples "will ated with eliminate eap misinterpretations.”41 possible *17 only question disagreements, Despite if the these reliability of eviden- of the about the tiary survivability degraded was bloodstains samples, phoresis questionable electro- it whether would be the be excluded where evidence should most less three old. The bloodstain is than weeks independent study the scien- discussed detailed degraded suggests can accu- markers be tists rately eap study up this to thirteen weeks. Before read written, markers other believed was scientists eap up accurately weeks, to read two three could be which was instant case. critique to length the of time involved support for the defense’s main too results from of the studies are test sample weight carry in much the scien- small a community. tific
B reliability point is the second of contention thin-gel multisystem the instant the used simultaneously genetic analyzes case, which three single, thin-layer markers, pgm, glo, esd, gel. Although systems starch other combination police multisystem designed by exist, the sci- police work; it the entists allows maximum amount of information to be drawn from electro- phoresis of a small stain._ bloodstains, Baird, individuality of blood and Soc 11 J Can 83,121 Jonakait, supra (1978), quoted n 10 at 903. Forensic Science degradation phosphatase 41 Yeshion, erythrocyte Thermal acid sample, isozymes in a case Forensic 25 J Sciences Opinion of the Court specific question A raised is filter whether used in the test molecules has esd compromising analysis unintended effect molecules. Because the results of pgm glo interpretable test not were the instant glo only case, the issue is of the pgm multisystem analysis. results argues thin-gel multisys- The defense respect tem is unreliable with to dried be- blood sample begin marginal cause the blood is too accurately read after further diffusion. electrophoretic separation Once the has con- been paper containing ducted, a filter re- a chemical agent placed gel. paper over the The filter molecules, meant to stain the esd but also soaks up "compro- says molecules.42Grunbaum this pgm mises” the test because "the molecules pgm pgm sideways, disappeared have diffused some have intensity . . [and] . bands are pgm they first, the same as if were stained before the esd.”43 Grunbaum said he could from the "deduce photographs leaching [taken test] that a out *18 you very of the has occurred and can see it pgm argues well” in the instant case.44The defense that multisystem "aggravates” problem the ent in the inher-
analyzing degraded samples.45_ 42 suggested paper causing Grunbaum that a second filter is added diffusion, prosecution further the but denied the use of a second paper. opinion quotes saying 43 The for affirmance Grunbaum as that many competent analysts country "there are that can do it great with a deal of confidence.” Post at 516. The "it” that talking thin-gel Grunbaum was multisystem about was the analysis. present method of Grunbaum said that "at the the state of art, [electrophoresis it of is unreliable.” He bloodstains] reliability "you "something defined can’t miss.” Confidence that you allow for a certain error that is inadvertent.” deducing question. has Grunbaum not researched this He is the problem obscurity photographs. from the of the arguing is not overlap Whether the defense is that the leads incon readings clusive or incorrect from record. clear the 47Ó Mich Opinion Court of the independent argues no that further The defense thin-gel reliability multi verifying study the prosecution published. system No been has ever developer argument. The this contradicted witness thin-gel multisystem, Wraxall, did Brian trials,46 but self-verification blind his own conduct procedure.47 sufficiently reliable is not a referring Sensabaugh said to when he study was This what relia the laboratories established four blind trials conducted between bility multisystem. the of Giannelli, 1213; supra testified that self- at Dr. Juricek n 15 47 See Independent against verifica the scientific tradition. was verification tion was deemed necessary to bias. eliminate opinion for affirmance states: by Mr. Wraxall. were not "conducted” These blind trials bloodstains, ages, Rather, of various of six each five batches labs, eight typing serologists of in their own sent to were genetic Thus, appears that the examiners markers. while for, looking they the blind in the tests were knew what sense markers were identity not know the of that examiners did particular sample. readings, Of a total Wraxall, p reading only B-7. one was incorrect. using Subsequent proficiency tests blind trial for laboratories systems multisystem using conducted and those other were
by Science Foundation from 1979 to 1983. the Forensic analyses 1.6 total error on individual marker was sum percent rate per protocol. tests [Post 523-525.] total Grunbaum, director, project original claimed that the results report,” stating only readings the "final incorrect, that one of the 912 findings panel had been falsified. The of a convened report dispute. subject also review the prosecution have been the panel discrepan- there minor claims the concluded were allegation, support cies but no contends the and results did not take for Grunbaum’s while the defense panel any manipulation experiments concluded that place managerial the at the level. The Law of the Administration, research, sponsor Enforcement Assistance decided not to publish report. Wraxall’s final thin-gel reliability multisystem analysis that the The statement using proficiency is demonstrated conducted tests crime labs multisystem tion labs used the conjunc- and other combination tests should be read in acknowledgment many it is not known how information, multisystem. no Without more conclusion properly concerning can be drawn of Wraxall’s multi- system analysis. ignored, expressed to be Even if error were confidence *19 questionable. on statistics remains While sum total error rate Opinion of the Court response prosecutor’s present The wit- nesses have who done with other tests.48 Dr. combination Harvey Rachael Fisher and Dr. sys- Mohrenweiser have used combination involving gel. tems a thick-slab starch Grunbaum distinguished thin-gel from thick- combina- system. "They using gel] tion [those the thick slice gel way they their in such a that had several layers, layer they cake, a like had fresh sur- they only given sys- faces, and stained for one a analysis percent per individual marker was 1.6 of 3107 total tests protocol, total per sample percent the error rate was 10.9 blood samples. samples This is because the number of was "substan- tially each factored out thousand,” being performed less than three four or tests five sample. appears Also it that the Forensic Science Foundation "incompetent” analysis, which means the actual error higher. rate was opinion however, may, for affirmance states: "It be noted analysis, system analyzes that enzyme a combination than more one time, routinely accepted at is a used and in reliable community.” Post at 523. There are a number of different combination methods. The method thin-gel used in the case instant was a combination Both method. thin-gel the thick-gel simultaneously, and the method test markers but thin-gel overlapping surface, involves tests on the same while the gel place thick is sliced so the take tests on different surfaces. See post at analysis 524. The statement is combination "rou- tinely placed do not accepted community,” used and as reliable in the scientific upon perspective in examination of cited references which support acceptability the claim of routine use and in the community. said, practice scientific our referring Two scientists "It standard (emphasis supplied). .” lab to . . One two scientists was thin-gel system, to a thick- and a combination and the doing other although seems be ambiguity the same there is some testimony. testimony, also, his Their concerns different kind of multisystem combination test than the one used in the instant case. opinion testimony affirmance states: "The reveals that a simultaneously combination method for three tested markers case, pgm, glo, genetic this Departments esd is used in research Pathology Michigan of Pediatrics and Univer- State sity.” The combination method referred to is other one one than the used analyzing in to is instant case. sample the bloodstains in the instant case. The referred method test, thick-gel thin-gel combination not the test used Also, genetics research is done a different kind of evidentiary than an An stain. bloodstain tends to "marginal.” samples genetics used in research not mar- ginal. *20 Mich Opinion of the Court compromising system.” tem. this was So wit- prosecution one of the at least Testimony by overlap on was some there suggested nesses He he used. systems the of combination least one the system: overlap compromised the did not think eap for stain use the fluorescent will . . . "[W]e . . . pgm top on because the stain put [but] [and] to a visible stain from fluorescent gone we have each other.”49 with . . . two do not interfere the to either by side testimony no further There was overlap- the the of effect dispute about resolve ping tests. using the scientists also asked prosecution
The they tests believed why the other combination Their reliable. collective thin-gel multisystem was following in the response could be summarized Fisher, "I have no reason Dr. comment Rachael testified that They it wouldn’t work.” suppose demonstrating seen no they study had of reasoning This line was unreliable. multisystem establishing of adequate if the burden would be unreliability on placed were general acceptance The of establishing general the defense. burden opinion for states: "A combination method involv affirmance ing sequential gel on the is also in use at the two markers same School, Michigan University of Medical at the and a combination method years Minneapolis was used for three Blood Bank.” Post at 523. sequential staining who about he had not scientist testified said glo gel. Sequential pgm, esd, done a staining test and on a thin combination positions gel was done on or the first "different where presented stain does not interfere with the second stain.” defense pgm testimony overlays of esd and in the instant case were spot gel” compro- "on the exact same on the that the esd test pgm mises the test. The method used bank not the blood method Wraxall experimented used instant case. The blood bank had glo analysis thin-layer pgm, esd, Wraxall’s simultaneous on a gel, analysis. starch and decided not use that method refers, believe, opinion 20 of the Footnote affirmance we testing paternity genetics re- fresh blood post search. at 523. do See Such tests not involve stains thin-gel multisystem analysis. Young (After Rem) Opinion op the Court acceptance reliability prose- is, however, on cution. ques- sum,
In there are substantial unanswered respecting reliability tions the Conflicting thin- Wraxall’s gel multisystem. expert testimony indi- independent cates that until verification tests have regarding thin-gel multisys- been conducted general agreement tem, in the scientific commu- nity multisystem on the of that is un- specific question likely. A left unresolved is whether the filter used the test of esd pgm compromises analysis molecules *21 molecules.
c degraded gaso- reliability by dirt, The of blood possible urine, sweat, line, and other crime scene contaminants also at issue the instant case. Electrophoresis testing paternity genetics for problems. research is beset not with these only electrophoresis scientists that have done of exposed blood with forensic to these contaminants are those
experience. Both for defense, witnesses Grunbaum and possible Juricek, Dr. Diane that testified not reliability electrophoresis to determine the evidentiary bloodstains until the effects of crime scene contaminants are understood. Juricek said electrophoresis evidentiary that bloodstains accepted reliable, scientists would have study gasoline effects "common contami- appear sidewalks, ddt, can, nants which on which you spraying grass appear know, from . . . .... possibili- [sic] There is also bacterial contamination ties. There are molds could an that have effect.” Although say Juricek would not for certain whether the contaminants would affect the electro- Mich Opinion op the Court strong "very
phoresis, theo- there was a she said they possibility” that would. Grunbaum retical knowing way just "[t]here is no testified degree humidity, . . . . . . bacte- of . . the heat . contamination, . . . [and], . . . chemical rial goes beyond range anybody’s on is a this imagination.” testified that Both witnesses would bloodstains community in the scientific not be established taking into conducted until controlled studies were possible present at a contaminants account "[y]ou have to scene. Juricek said would crime singularly . . . all of these different factors check . .” The would then in . . studies combination indepen- published then have to be and "verified dently.” appears survey
It from the record and comprehensive con- scientific literature such trol studies have been conducted.50 prosecution instead on inferences relies performed drawn from tests dried bloodstains prepared ideal condi- under contamination-free only publication referred tions. name study was the Denault discussed earlier. Reliance *22 given study ca- on this is curious Denault’s own veat.
[E]mphasis placed must on limitations study. for starting point this It is intended as a Moreover, . . . future research. were con tests specimens impurities. on It ducted clean free of practice serological realized that in actual evi preserved dence under condi known constant rare, specimens may tions is be contami urine, impurities perspiration, nated with such as 50Jonakait, supra n 10 at 878. Opinion of the Court applica
soil, and bacteria. These factors limit the study.[51] tion of the results questioned proviso, prosecu- When about the expert only significant experience tion’s with with evidentiary commented, bloodstains the cleanliness significant problem of the stains is not "as as prosecution they emphasizes think is.” The study unreliability. no has shown expe- Prosecution witnesses testified about their Sensabaugh, relying rience with contaminants. his on unpublished laboratory study, own said that signal bacterial contamination would itself. He person interpreting said the the test would see appearing positions "new bands in odd . . . .” Fisher also testified that bacterial contamination activity, posi- would result a "different different suggested flag tion.” She the contamination "will you . . . .” written, however,
Juricek has
that bacterial
necessarily
easily
contamination does not
create
"Many
excludable bizarre bands.
bacteria have
Type
example. Thus,
been found to
have
pgm,
Type
1 blood when contaminated
bacteria that
Type
Type
have
would be identified
2-1
pgm
despite
gels
proper
the use of starch
con-
trols.”52 The result
test
instant
pgm
Type
case was
2-1.
willing
recognize uncertainty
Fisher was more
respect
with
to unknown contaminants. When
soil,
answered,
asked about
Fisher
"If it is contam-
depends
soil,
inated with
I have no
It
idea.
response
judge’s
what
is in the soil.” In
to the
"your testimony
comment that
is that if there was
problem
any
having
[electrophoresis
to use it
Court,
bloodstains]
it would have
51Denault, Takimoto, Kwan,
Juricek,
n 37
supra.
Crim &
Pallos,
n 36
supra
at 496.
*23
to come from sample flag not catch that contaminated a going said, wave,” "There are obvious to Fisher which tested and Although I have never conditions that nobody she fol- has ever tested.” else up "I conceive that can’t lowed with the comment going problems], [having anybody unless one go sprinkling place with rare chemi- to around prosecution testimony wit- cals,” the of another suggests Harvey Mohrenweiser, ness, only that it is Dr. "catch fair conclude that examiners will to seeing. flags” they asked used court competent examiner will whether a Mohrenweiser activity separate the contaminated "be able to activity?” Mohren- from non-contaminated recognize answered, "[s]hould the examiner weiser that problem they . able . . would be there is recognize identify samples contami- which are routinely of conditions we nated under sorts operate. developmental proce- part of the That’s inappropriate recognize it would dure type only . he . . .” The stains had examined produced Because these were those laboratories. conditions, stains were not collected under sterile there could be "some bacterial contamination.” Mohrenweiser prosecution and the other witnesses respond questions not did to the raised the effect of other defense about likely crime scene contaminants such as chemicals and soil. agree sum,
In do com- scientists not what effect may mon on elec- crime scene contaminants have trophoresis. They agree comprehen- do because have sive control tests not been undertaken. testifying experience had no with scientists trial only soil or chemical contamination and could might engen- guess such what effect contaminants Although experience der. the scientists had some op Opinion the Court type bacterial contamination found *24 laboratories, ing the here bloodstains were made dur- following
or of a commission crime and not laboratory under conditions.
VII agreement community General the scientific reliability electrophoresis on the bloodstains has not been achieved because inde- pendently conducted validation tests and control undertaken, studies not have been scrutiny and the results subjected of the scientific commu- Legal nity. spoken of commentators have the need comprehensive testing for ity to establish the reliabil- technique.53
of a new expects independent The scientific tradition veri- procedures. fication of new When other scientists analyze dangers repeat they tests, counteract reporting. It biased not scientists responsible original for the research that confirm validity. its
Although electrophoresis generally been has ac- cepted community as reliable in the scientific many years, technique. multisystem Wraxall’s is a new test independently
No conducted verifica- tion studies have been undertaken. Scientists eval- uating technique necessarily base their conclu- unpublished reliability study on sions con- multisystem’s developer. ducted General agreément community in the scientific cannot be testing type achieved on the basis of this alone. Independently reliability conducted tests on Wrax- multisystem could, all’s however, be undertaken great difficulty. questions without Such as whether compromises subsequent the filter tests would 53Jonakait, supra 910; Giaimelli, supra n 10 n 15 at 1225. State, supra (Deen, J., concurring). See also Graham v n 21 at 24-26 Mich Opinion of the Court independent through readily resolvable to be
seem verification. measuring the studies of control
The absence of various contaminants effects agreement general way in the of Although in the also stands clearly community. it is scientific possible every necessary conceivable to measure every environment, or at least contaminant contaminant effects soil and cording imagine, attorney can a defense such common contaminants of certain gasoline Ac- be tested. and should could presently record, their effect to the they alter or whether It is not clear unknown. destroy thereby bands and remove they just the results render or whether of the test uninterpretable easily identifiable an or create *25 stray band. allowing implementation dangers of an of
The inadequately paraffin are well-known. tested device are two famil- Daikon Shield and the
test by examples. paraffin used law test was iar enforcement agencies introduced as evidence suspect recently has that a in court to establish fired a the nitrates . . gun.54 theory the test was "The behind presence particles of the results established gases deposited the . on the hand cartridge.”55 discharged not until It was a accepted thirty years as after the test was over reliable evidence hensive compre- court, first showing published conclusively study gun many people a but who never fired "that occupation, happenstance profession, whose brought nitrates can be them in contact with expected yield positive test.”56 reactions to the 856; Giannelli, supra Jonakait, supra n 15 at 1225. n 10 at Cases, Inbau, 4.12. in Criminal § & Scientific Evidence Moenssens Giannelli, Jonakait, 856; supra supra n 15 at n 10 Id. See also 1225. Opinion of the Court history Daikon Shield is also instruc adequate testing, tive. "With controlled studies marketing, and cautious [the manufacturer] could have discovered increased risks which have been shown to inherent in the Daikon Shield’s design.”57 unique Instead, new because its desire get product quickly to possible, new on the as market entirely
"[t]he [the defendant relied only pride researcher], who had not of inven personal tion, but also incentive bias his judgment. . . .”58
VIII prosecution We conclude that has failed to general acceptance reliability demonstrate of electrophoresis bloodstains community. questions turnWe to the whether the error admitting electrophoresis evidence was harm- less or we whether should remand for a new trial charge second-degree on a murder.
The erroneous admission of evi- dence does not if it necessitate retrial is clear prejudice the error did not the defendant. In the case, however, instant clear the error was harmless.
At trial no one testified about electrophoresis except pre- Detective Stolorow. He technique sented a slide show and testified demonstrating concerning reliability. previ- its As *26 ously percent only discussed, he said that 1.3 population protein subtype has the and abo combination found in the sidewalk stain and one- percent subtype half one has the and abo combi- (D Co, Inc, Supp Hawkinson v A H Robbins 595 F 1984). Colo, 58Id. Mich op Opinion the Court porch that this stain. He said
nation found people seventy-seven would one of meant one hundred and one of stain match sidewalk porch people seventy-seven match the would Parenthetically, trial cross-examination stain. independent verifica- not reveal the absence did contradictory or other tion and control studies subsequently Grunbaum and raised evidence hearing. during Juricek argued prosecution the admission has harmless be- evidence was evidence.59 of other cause of the "abundance” finger- proof tests, abo blood consisted of other prints, testimony Terrence Coleman. and the reliability of abo blood one contests
No testing general of the abo test or the results porch stains and sidewalk instant case. The group has, how- o. This identified as blood were significance. testified at type ever, As Stolorow little population percent forty-five have trial, suspect only not even the o blood. type o blood. fingerprints house are in the victim’s found fingerprints significant. Twenty-three were
more found, enough points did not have but eleven comparison maining prints, re- identifiable.60 Of the twelve were Lechtanski’s.
ten these fingerprints found on The other two which were drawer, were handles of a toilet and dresser Young’s. ultimately Questions identified were 59People Young, supra. n 1 fingers your comparison ridges Points of come from the the possibly they ridges along will hand. will run and then "[TJhese this, ending. ridge abruptly some will . . . end. When it does we call it a Or go along, they split, we call a will forms what points types of that we And there are five of these various bifurcation. ridge endings, making an identification. There are use dots, bifurcations, ridges, ridge See also short and enclosures.” Moenssens, supra n 55 at 350-354. *27 Young Opinion of the Court raised, however, concerning the the identification. fingerprints finger- were to the compared
prints separate on two occasions. On police specialist the asked May laboratory was suspects, compare prints including nine Young. report suspects, listed the name of the list, Young’s top with at and name made of the latent "Comparison concluded prints fingerprints negative with results.” The specialist’s explanation trial of the laboratory I negative only thing results was that "the can desk, think of is that I had the on I my cards compared had some that I I hadn’t some picked up had I compared. either two cards and it, stuck his card with the one above possibly I just put wrong begin them in the stack to and apparently compare didn’t his card at time.” 13, however, June specialist
On the laboratory was asked once again compare Young’s finger- prints prints with the two found house. This time fingerprints he concluded that "were made by person.” the same He said there were eight points comparison between the thumb print found on the toilet Young’s handle thumb print and more than points twelve of com- parison between the fingerprint found on the bot- tom drawer handle and Young’s right finger. little
Experts require generally that "a minimum of eight identical ridge characteristics ... be found in both prints, though most experts prefer at least 10-12 concordances.”61 both Although prints meet the minimal requirements, the fingerprint from the toilet handle just clears the threshold. Of the two fingerprints, print on the toilet handle is
61Moenssens, supra n 55 at 366. Mich Opinion of the Court important. toilet han- reason
the most probably fingerprint made would have been dle print put "any recently, that would be because person destroyed . . . next there would be Fingerprints last . can . . flushes the toilet.” that a long suggested time, and defense counsel *28 might print jury made have been that the second During aof an earlier date. cross-examination at police Young he did officer, that said who testified and never been know Lechtanski had not Mitchell Mr. house, asked "couldn’t his defense counsel Young by simply a name known him have Young Mickey?”62 had not shown The detective pictures of or the house. Lechtanski acquaintance Young, Coleman,
An of Terrence day he en- before murder testified that Young his on the and asked what countered street May plans day, the next 16. Coleman were for Young planning responded a he testified was that robbery town. said him on the north side of Coleman day next and asked he met the defendant the "I him if asked about murder Lechtanski: only did, it. reason he did And he said he coming why him after he did do because he was object. . . with a blunt .” depends reliability Coleman’s statements credibility murder on his Before the witness. driving away motor he had been convicted of Although delivery marijuana. he vehicle and said he not tell Young spoke May 16, did on Coleman police what he knew until October jail charges possession he on when Young’s he stolen merchandise. When trial, testified charges against pending Coleman. there were promises however, said, no had been Coleman made for his testimony._ 62Mickey in the bar or Mick seems to how he was addressed frequented. he which Dissenting Opinion Boyle, J. independently appellate court, an we do As not appellate "[I]t is evaluate this evidence. not guilt determine or court’s function judgments exclusively innocence. . . . Those ,”63 responsibility jury . for the . . Our is to deter- might jury’s mine how the error have affected the inquiry is the error had decision. The "what effect may upon reasonably had be taken to have jury’s decision.”64
If it were that the admission clear erroneous prejudice the Young, evidence did are,
the error would be harmless. We opinion however, of the that but for the electro- phoresis may jury had a evidence the have reason- might doubt, able made evidence have the difference. We for a new therefore remand charge second-degree trial murder. C.J., J., Williams, Brickley, concurred with Levin, *29 (dissenting).
Boyle, J. The issue in this is case serological electrophoresis evidentiary whether of 1 general dried bloodstains has achieved scientific 63 States, 750, 763; 1239; Kotteakos v United US 328 66 S Ct 90 L (1946). Ed 1557 at 764. 64 Id. 1 case, When first the Court considered this the issue was the reliability serological electrophoresis. hearing At the remand con pursuant order, ducted to this Court’s that defendant conceded electrophoresis is determining a reliable and accurate method enzyme protein genetic and other markers in blood whole and blood laboratory produced bloodstains, serum and in reliably dried which has been years by geneticists, paternity used for testing for and blood banks. question We do not deal here with a of a detection mixed stain of saliva, blood and semen or semen mixed with or of semen See stains. Brown, 512; v Rptr 637; Greenwood 40 Cal 3d 220 P2d Cal Mich Dissenting Opinion Boyle, point acceptance.2 frequently true, at may As is up analysis an issue which court takes and individ concerns of the law mask the real ual actually question justices. in this case is The tion of an tion of whether the Court is commendable both suggest multisystem technique. the issue before us as: Whether dried bloodstains source 293 F 1013 issue reliability reliable, but, conditions and apparent scope multisystem First, Second, acceptance record not counsel which are reliability to trial court can be this Court argued already test articulated (1923), as the trial thin for remand, of the remand multisystem accurately defendant, gel procedure recognized, left at a crime scene and that would make accepted technique that of the contention that we must decide briefed at oral Rather, despite of dried bloodstains judge correctly particular the issue before us for tested Ronald J. used the record on remand went here. order, Frye its argument, advocacy using method of in this case results in an not an issue before this Mr. it United the fact Bretz, found necessary to electrophoretic technology. Bretz, question pass and its using electrophroesis, on remand: is the States, whose exposed to unknown that, has briefing from an unknown integrity, before us carefully Frye reliability performance on as both 54 every multisystem App beyond the before hurdle, modifica- does applica- i.e., counsel framed DC on the is not Court. of the this not 46; an name, any process, by whatever Whether there [is] reliability acceptance that has achieved sufficient scientific so as to accomplish attempt Is in a court law .... result any reliability process that it there should that has sufficient scientific appears competent evidence? ... It be considered back, using question Supreme is a that sent that Young whether, Court vehicle trial in the first instance as a to determine name, any process we whatever there is should with. be concerned juncture, saying I ... am at this as a matter of order of proofs, get question. anything by to the first Is there whatever reliability acceptance name identify has achieved scientific persons link unknown with dried bloodstains under —to forensic circumstances. particular technique electrophore- used for the testing properly sis us, of the dried bloodstain in this case is before considering. only question nor is it we Our role is should be reliably decide typed not dried bloodstains whether or can method, using electrophoretic not whether better an works *30 technique gel as to the used on one medium than another. Questions by electrophoresis in case Mr. Stolorow to effectuate the trial must be addressed to the court. Young (After Rem) v by Dissenting Opinion Boyle, sufficiently Court whether the is convinced of the process willing this that is to trust juries application trial courts and to treat of the ory technique particular in a in a instance procedural manner consistent with fairness and just concern, results. This Frye3 whether articulated as approach different standard a expert opinion, admission of is the motivation for appellate the assertion of an court function when proposed what is to be offered is of a evidence new procedure.4 scientific
I that conclude the record below establishes theory applica- both the and its gained evidentiary tion to dried bloodstains have particular general acceptance in field which belongs. Frye App States, each United US DC 46; 293 F 1013
THE TEST FRYE Frye standard first was formulated Appeals United States Court of for District impres- Columbia Circuit 1923. In a case of first polygraph sion, the court found evidence offered the defendant5 was inadmissible because technique accepted sufficiently had not been States, Frye supra. v United n 2 that, system approaches It is clear a which the admission of expert testimony presumption admissibility, a MRE 702/FRE technique paradox upon novel resistance to a scientific is a based evaluating fear credibility, fact-finding a function, that the vehicle usual inadequate to the task. It is further on the founded belief judges cannot, level, that complexities themselves at the threshold deal with the general acceptance The test of issue. is, context, community simply in the in this a reformulation principle ordinarily of the upon that men and do not react to women or act Thus, they adop information in which do not have confidence. theory technique tion use of are circumstantial indications probative value the evidence. interesting Frye, although It to note that the defendant convicted, subsequently pardoned person when another confessed crime. *31 Mich 470
508 Boyle, by Opinion Dissenting community. In the relevant reliable scientific oft-quoted language, the concluded: court discovery or principle scientific Just when a experimental and line between the crosses the demonstrable Some- stages is difficult define. twilight force of in the evidential where this zone recognized, the must be and while principle
the long admitting expert go in way a courts will testimony principle deduction is made to have well-recognized from a deduced discovery, thing from which the the sufficiently must established particu- in gained general acceptance supra, p belongs. [Frye, in lar field which 47.] Although the two- in have asserted critics opinion, Frye page ity author- neither cited court explanation adopting for nor offered an acceptance general and that stan- standard6 nothing may dicta,7 the more than have been dard accepted jurisdictions. Frye most in test was soon Frye adoption, test its Since criticism As one commentator often been vehement. has noted: in their have been restrained Commentators [Poly- Frye See
criticism of test. Moenssens graph Meet Standards Test Results Admissibil- Evidence, ity Legal Admissibility ed, ("archaic”); 1975)] 19 22 C Polygraph (Ansby Wright dure at Proce- & K Graham Practice & [Federal ("a Conrad, ”); 'sport’ Land- § 5168] Evidence, marks and Hallmarks in Scientiñc (C 37, 38 Sourcebook in Criminalistics ed, Hormachea 1974) ("antiquated day pronounce- on its ment”); Tarlow, Evi- Admissibility Polygraph Credibility Determining 1975: An Aid in dence 6 Giannelli, admissibility Frye scientiñc of novel evidence: v (1980). later, States, 1197, 1205 century A half L R United 80 Colum Fryed crisp, Admissibility Costley, Scientiñc S evidence— 62, L J Tex v Dissenting Opinion Boyle, J. Hastings a Perjury-Plagued System, L J (1975) ("infamous”). [Giannelli, 923 & n 38 admissibility Frye of novel scientiñc evidence: States, later, century United half L 80 Colum R 1197,1206-1207, (1980).] n 59 Critics on problems have focused several Frye test. Most comments frequently, have been directed at its excessive restriction evidence, admission of relevant its to fix tendency standards when the evolution scientific metho- *32 dology may well make standard outmoded in future, and the implausibility assigning many new scientific methods into well-defined ar- See eas. Scientiñc Costley, Admissibility evidence — 62, to a 21 Fryed crisp, S Tex LJ 64-65 (1980); Giannelli, supra, 1208-1209.
An additional criticism of the Frye test there are no definite criteria to use to if decide general there has been acceptance. it Because impossible to find agreement unanimous in any field, the courts have been hard-pressed to find the appropriate number experts who must have accepted the technique as reliable. As one com- mentator noted: It would be a for mistake to courts wait for certainty complete agreement. Neither science nor the law premise. functions such a inconsistencies found in the social world are varied and should changing. this, ever In view of the courts apply principles bearing while mind the fact that current reality making means
decisions under uncertain and unstable conditions.
supra,
[Costley,
p 67.]
Strong, Questions
See also
affecting the admissibil
evidence,
ity
scientiñc
(1970),
U Ill L F
1970
1
Giannelli,
supra.
In response
test,
to the criticisms of the Frye
Mich 470
510
Dissenting Opinion
Boyle, one federal circuit8
courts and at
least
several
entirely
severely
the test
abandoned
have either
limited
Judicial Court
Supreme
application.
case,
its
In lead
novel scientific
of Maine ruled that
when
admissible into evidence
evidence would be
testimony
given
will
is relevant and
"the
to be
fact to understand the evidence
the trier of
assist
or
388 A2d
Williams,
fact in
State v
issue.”
determine
1978).
(Me,
500,
See also United
504
(CA 1978),
cert
Williams,
F2d 1194
v
583
States
(1979);
State,
Whalen v
434 A2d
439
1117
den
US
(Del,
(1982);
1980),
The continuing debate over the proper approach
to novel scientific
is generated
evidence
tension between a
approach
reluctant
to novel
may
evidence which
great weight
for
carry
factfinder
and the principle
that evidence which
may
of value to the factfinder
be pre-
should
cluded
when
only
necessary
carry
out
the dic-
tates
a conflicting and
I
overriding
do
policy.
Frye
advocate that
this Court abandon the
test. I
would, however,
reject
requirement
novel
evidence must be
People
established
v
witnesses,
disinterested
Barbara, 352;
Mich
(1977),
NW2d
Tobey,
trend toward missibility standard.9 approach
Contrary the the contention People majority v a modification the not Tobey, People can neither case be v Barbara and standing proposition that a founda- for read as tion or that scientists, disinterested must established be degree of 'interest’ must "a while certain testimony 483, of a tolerated,” ante be intimately connected livelihood whose scientist disregarded. technique must be the new with specifically Barbara, noted Rather, the Court "although witnesses, credentials of outstanding polygraph technicians, are not for p Id., Court also 377. The those of scientists.” noted general acceptance present of the art state "[u]nder among psy- polygraph chologists physiologists demon- cannot be acceptance not exist.” strated, does such because p "one would Id., Court stated that 390. While the general want, demonstrate where task was acknowledgment acceptability, an scientific techniques by disinter- device and the value inti- livelihood scientists whose ested mately p it,” id., 376, did Barbara connected 9See, Trautman, Logical legal relevancy e.g., or conflict —A (1952); recognition theory, Boyce, of scientific 5 Vein L R Judicial cases, supra; (1963); Strong, evidence in criminal Giannelli, supra; Utah LR McCormick, supra; Costley, evidence: De Scientific fining approach admissibility, 67 Iowa L R 879 a new Perhaps Frye most test is Dean well known for his criticism the In text he McCormick. his on evidence notes: taking acceptance proper is a condition for General scientific facts,
judicial but it is not a suitable crite- notice Any admissibility relevant rion for scientific evidence. supported by qualified expert conclusions witness should These received unless there are distinct reasons exclusion. misleading prejudicing are the familiar ones of consuming or reasons jury [McCormick, Evi- undue amounts of time. (3d ed), p dence § 608.] Dissenting Opinion by Boyle, *35 proposition Frye not stand for the the stan- only dard could be met disinterested scientists. Tobey, supra, p Nonetheless, the Court in "[Gjeneral cited scientific out rule of Barbara as follows: recognition may not be established with- testimony . of . . 'disinterested scientists intimately whose livelihood was not connected technique.” Tobey with’ the new Court applied testimony police then the rule to a of testimony officer "but not a scientist” and to the of professor audiology a Nash nor of "[n]either and noted that reputations
Tosi, whose and careers have voiceprint work, been built on their can be said to impartial p Id., or disinterested.”10 146. quarrel I do with the Court’s conclusion Tobey either or Barbara that the record was insuf- general acceptance ficient vant scientific with is the establish in the rele- community. I do take What issue majority’s conversion rationale requiring disqualifica- of Barbara into a rule testimony indisput- tion of the of witnesses who ably training, education, have formal and back- ground applicable disciplines. in the may weigh
That a court
the credentials and self-
determining
interest of a witness in
a
whether
showing
reliability
sufficient
has been made is
logically
self-evident;
follow,
does not
as the
majority suggests, that a witness’ self-interest com-
pels this result.11_
10Pennsylvania
testimony
and California have held
a
_
single witness,
reliability
whose career
been
has
"built ... on
technique,” People
24, 38;
Kelly,
144;
Rptr
v
17 Cal 3d
130 Cal
(1976),
scientist,
549
establish the
P2d
and who
not a
was
insufficient
technique,
Topa,
aof
new
Commonwealth v
223, 231;
People Brown,
471 Pa
A2d
See also
40 Cal
512;
(1985) (forensic
Rptr 637;
3d
220 Cal
A trial or testimony insuf- of technicians conclude that reliability. is, however, There to establish ficient placing simply the "disinter- wholesale no basis gloss expert/intimately on the the connected” ested noted, Frye Indeed, court as the trial test. law, diminishes, as a matter of of such test effect testimony Stolorow, is not a Mark who of science technician, degree holder of a bachelor but the degree in forensic chemis- and a master’s technique, codeveloper try, and who has ais teaching working It it since 1975. with it and been Kearney testimony of James also diminishes the serology the fbi who holds bachelor unit of degree bacteriology a master’s *36 of science microbiology, degree has also worked and who procedure taught with and (in bloodstains since dried electrophoretic laboratory examina- that does ninety percent month, of which are done tions a by multisystem). prob- paradigm of the is a
The instant record testimony approach. by lems such an created knowledge field, in the have the most of those who regarded suspect. scientists, forensic Sensabaugh, testimony Grunbaum,12 and of Drs. may Juricek, to have an all of be said whom greater advocacy issue, is accorded interest weight. no financial inter- witnesses who have experi- phenotyping and no actual est forensic developed technique reputation have and whose where those who and livelihood technique certify depend new alone on use technique. validity certainly hypothesized Situations can education, reputation background, experience of one where individual would be such as to appellate persuade court of that question qualifications express opinion an individual’s acceptance. general scientific People has, according reply v to the brief in Dr. Grunbaum pgm Brown, typing supra, and receives a machine for invented a percentage. by Dissenting Opinion Boyle, process ence in the are accorded the most defer- Frye/Tobey/Barbara ence in this variation of the analysis. The result is that those scientists who process know the viewed, most about the are as a persuasive law, matter of as the least witnesses. intimately The "livelihood . . . connected with the technique” represents regressive ap- new proach test developments paren- which,
to scientific thetically, opinions would have devalued the Salk, Einstein, Curie, Jonas Albert or Marie each standing work, livelihood, of whose life professional community intimately their con- procedure. nected with a new scientific THE THEORY OF ELECTROPHORESIS Electrophoresis charged par- is the movement of through conducting by ticles application a buffered medium isozyme
of a direct current. The term enzymically pro- is used to describe active blood teins which can be identified their relative separation mobilities in an electric field. After proteins by application into marker bands of a specific applied current, chemicals to make the proteins Biology visible. Manual, Methods Metro- politan Laboratory, Police Forensic Science Lon- England don, The relative distance of the origin compared bands from a common standards, known and evaluated established guidelines. *37 compared population
The results are then to frequency studies which show the known of each given population. produces factor in a This a sta- representative percentage tistic which is of the population group that has that and those genetic factors in common.13 The more markers samples case, upon prosecution’s in this which the witness opinion, previously o, offered his type had been determined to be in Mich Dissenting Opinion Boyle, persons population
identified, the smaller particular might possess combination a who factors. TO EVIDENTIARY THE THEORY
APPLICATION OF
BLOODSTAINS
theory
undisputed
that the
this record
on
It is
accepted
generally
in
at
as reliable
is
community.
all witnesses
Indeed
the scientific
hearing
so testified.
on remand
apart
ample
record, even
in the
basis
There is
theory
concession,
defendant’s
from
application
serological electrophoresis,
laboratory-produced
theory
blood sam-
dried
the
ples,
acceptance
general
as
achieved
has
technique.14 Dr. Grunbaum
reliable identification
a
and also
conclusions
trial
to these
testified at
proficiency
acknowledged
tests established
many
evidentiary materials, "there are
that, as to
country
competent analysts
do it
that can
[electrophoresis
bloodstains] with
on
great deal of confidence.”_
popula-
forty-five percent
type occurring
system,
the abo
tion.
tell?,
article,
colleague’s
My
Will blood
reliance on Jonakait’s
(1982),
given
problematic,
Emory
sor
the fact that Profes
L J
People Shirley,
lawyer,
31 Cal
a scientist
Jonakait is a
[see
(1982)],
18;
243;
Rptr
describes his
typing "blind in stains and that procedure indicated that trial studies” supra, p completely Gaensslen, 451. Dr. reliable. from also testified alterations Rachael Fisher drying pgm in and that not seen were ead eap aging could be reversed and effect ada reagent. by Cleland’s rap- degrades Thus, true that blood while idly drying, the record the literature and while undergo markers alteration establish that during which rejected drying and for forensic use question may in this in case that reliably markers Sensabaugh, electrophoresis. by identified enzymes polymorphic in forensic Uses of red cell Haematology science, 10 in Clinics Enforcement Assistance The results of Law study were not Administration of dried stains published, study, by Brian Wra- but the conducted xall, is available in the National Criminal Justice findings cir- Reference culated and the have been Service adopted by, to, a sizeable number of and theory Thus, forensic laboratories. both its application put practice to stains have been into period upon and relied for an extended of time. Report, Sys- Analysis Wraxall, Final Bloodstain Department tem, Justice, United States 1978. literature and the record this case indi- cate continual effort to monitor results and to possibility further reduce of error electro- phoresis of dried As a bloodstains. result this effort, scientists and well technicians are now procedures unique aware and indicators to dried genetic analysis, bloodstain which markers undergo changes typing which will affect the re- Young (After Rem) Boyle, by Dissenting Opinion (and rejected by suits are for use forensic scientists studies). geneticists population process Also, forensic itself includes the systematic stability evaluation of the of markers stored under various known conditions such as aging, humidity, heating, freezing. chemicals, typing system If the be a marker substrata cannot Sensabaugh, reliable, made then it is discarded. supra, p 198. principal
Because effect bacteria is on wet signal blood, contamination a dried stain will untypeable itself as patterns. or will result in different band patterns by guide-
These are evaluated Biology lines set forth the literature. Methods supra, pp Manual, Bacteria, thus, 2-88 to 2-138. problem manifests itself as a which different normally comparable from those seen and not the control marker. Forensic and nonforensic sci- routinely analyze samples entists air dried which example have been contaminated bacteria. One *40 process of this is illustrated the method in eap system which difficulties in the have been "Enzyme Shah, addressed. See Williams & Pat- terns Bacterial Classification and Identifica- Microbiological tion,” Classiñcation and Identiñca- eap pp system tion, 1980, 299-318. The is based on genetic explanation phenotypes a of six called A, ba, b, ca, cb, and c. The differences between these phenotypes electrophoretic plates are a matter intensity. Misinterpretation phenotypes of band of possible fully appreciated. if these effects are not methodology, therefore, dictates the inclusion appropriate phenotypes of controls of known when using any phenotypic procedure, particularly and attempting diagnose pheno- when types. c and b, cb, supra, p Gaensslen, 452. Finally, significantly, and most the record indi- consequence typing virtually that of If all cates errors is a typing false exclusion. one error is Mich 470 Opinion by Dissenting Boyle, person, person is excluded.15 true that made on a possibility more inclusion is remote.16 of false correctly observed, the relia- As trial court sample given analysis bility particular in a of the question reliability from is a distinct possi- technique. theory that The claim or sample bility in a crime scene of contaminants precludes a conclusion electrophoresis, theory technique inis reality can never be a reliable there a claim that opinion,17 noted, Grunbaum as Dr. forensic since "goes potential range on be- contaminants the yond anybody’s imagination.” that is true While impurities, specimens may be contaminated that conditions different the literature indicates exposure persistence variation cause typeable that those markers that markers and Although, persist reliably as identified. can be majority notes, testified and writ- Dr. Juricek has Type may Type ten contaminate that pgm pgm being Type 1 lead to identified blood and case, types, possible Assuming, three as in this five markers with Sensabaugh as follows: testified important large I it is to have sense of the number. think 81, to the
Three fifth is 243 .... the the third is three fourth is three to case, possible any In those are all outcomes tests, large typing very up some You end with one number. person you If the is the true make a outcome. mistake on the source typing, you person then have excluded that possibility very of a false inclusion is much less than the exclusion, possibility you a false because would by chance, one of . two have to have one forty possible types the . . hundred false would have match the result got. you *41 Frye appears This to be for claim the basis Jonakait’s since, guarantee inadequate genetic is in test Jonakait’s to tests view, procedures only lab these are used the forensic general possible. acceptance in the and will not be field cannot Dissenting Opinion Boyle, Type only 2-1, a the literature indicates that positives reported false that have been are pgm samples. supra, p Gaensslen, in whole blood 433. heating, aging, humidity, The effects of metals, chemicals, bacteria, air born and substrata have investigated question been for the markers Typing Culliford, case. this The Examination and Laboratory, Depart- of Bloodstains in the Crime pp Justice, 1971, 108, 117, Denault, ment of 120; supra; Biology supra, pp Manual, Methods 2-88 to application 2-138. The tiary to eviden- generally accepted dried bloodstains is community relevant scientific and is reliable. OF DISTINCTION BETWEEN RELIABILITY THEORY AND TECHNIQUE THE OF AND EVALUATION EXPERT A OPINION PROFFERED PARTICULAR IN CASE question regarding sample If there opinion offered as the basis for the in this case regard potential age with marker, particular error obtained,
the fabric from which it was going test used other factors expert opinion, of these foundation are factors to be evaluated court trial in its traditional determining admissibility, function of MRE preliminar- If 104. the test results are determined ily weight affecting admissible, to be facts credibility opinion may, placed course, before the factfinder.
The effect of crime scene contaminants particular sample question is a that relates to the duty preliminary determine, trial court’s a admissibility, expert opinion issue of whether given regard particular offered in a case with to a sample has a sufficient foundation to be relevant.18 testimony questions concerning admitted, If the presented 18 I note that what we with in this case is a *42 Mich by Dissenting Opinion Boyle, J. employed sample reliability test the and the of the go through explored to and cross-examination are opinion.19 credibility weight the and theory and of the Because both gen- application evidentiary are bloodstains its accepted erally commu- scientific in the relevant properly testimony nity, I that the conclude below. admitted
THE MULTISYSTEM TECHNIQUE technique particular used the While issue scope the re- the of this not within in case was proper subject order, for review is not a mand extensively majority Court, deals this the multisystem if that were the tech- method as the nique question. Indeed, in the the observation "[bjecause opinion, p majority the re- that interpretable not the were of test sults the the glo reliability only case, is of instant issue analysis,” high- multisystem results pgm goes question lights is that fact that this a credibility admissibility of the discrete issue opinion this offered in case. may, however, It noted that combination he analyzes analysis, system more than one or a that accepted enzyme routinely time, a is used and at community. The testi- as reliable the scientific photographs itself situation where the test results and test case, photographs test results not In this were taken and available. 202, opines Sensabaugh, supra, p every effort were recorded. sample in a. in order to should be made maintain the scientific test proposed Michigan admissibility. Criminal new Rules of ensure Procedure on results of MCR 6.202 discovery make to the defendant would available testing Proposed any prosecution. done example study four The fact for the Denault indicated false antigens twenty-six positives a for the and b at weeks reason a rejection theory electrophoretic typing Rather, challenge to for a an the Denault work is basis bloodstains. testing sample. opinion comparable about the on a (Aftek Opinion by Dissenting Boyle, mony reveals that method for combination simultaneously case, three markers tested this genetic used in research in pgm, glo, esd, Departments Pathology of Pediatrics and Michigan involving University. A State combination method sequential gel
two use at the on the markers same Michigan University also in is cal three literature of Medi- School, and a combination method was used for
years Minneapolis at the Blood Bank.20The *43 variety that a
establishes there are wide multiple systems polymorphic used to determine enzymes electrophoretic on the same run and that procedures by these used forensic nonfor- supra, p Gaensslen, ensic scientists. See 432. particular multisystem in method used since this by case has been the fbi in used is use in more than one hundred crime laboratories in taught country, by the used and is to and students protocol University aas at the of California in Berkeley. testing It is used also for fresh blood in independent laboratory any an to available seeker of its services. by
This method was tested trial blind tests separate conducted in four laboratories. Final Re- port, supra. While the results were returned to by and Brian correct to dent Laboratories, tabulated Beckham to which contract, Wraxall was then under it is not suggest indepen- that this not was an study self-verifying. or that these tests were by These blind were trials not "conducted” Mr. Rather, bloodstains, Wraxall. five six batches of ages, serologists each of various were sent in appears data, It also the that the created from occurrence of genetic Stolorow, population study by markers in a Mark conducted upon was determined to be reliable and is in fact relied at the University frequency and rated Banks. Further, Michigan percentage School of Medicine. genetic systems independently for markers these was repeatedly by independent laboratory incorpo an confirmed published report of the Association of American Blood Mich Dissenting Opinion Boyle, genetic eight typing markers. labs,
their own appears knew examiners Thus, that while looking they for, tests were blind were what did not know that the examiners the sense identity sample.21 particular of the markers reading readings, only one a total of 912 Of incorrect. p Wraxall, B-7.22
whether blind tests initiated but what the versy prove system are unreliable the Clearly, practices p lied on test which tested into evidence review Dr. Grunbaum’s into evidence and stated allegations prosecution Associate The whole While this 492) My experimenter samples. that "no evidence was found to substantiate alleged by majority. colleagues’ performed by a blind majority not in evidence perplexing panel Director for Service and . . . .” Discussion of the and Dr. Grunbaum details the testing, purpose Denault, supra, p majority, clearly concluded. In trial, the investigator People’s knowing claims conclusion with if taken per Denault if conducted criticisms of Wraxall’s light in the Wraxall se. . Exhibit beforehand prosecution test, system, of the fact alone, has performed by fact, or Wraxall. 485. defines the term "blind then, no regard findings may Technology properly knowledge I along report what question panel test, precludes manipulation and defense that the Denault not be to achieve results without to the Wraxall *44 gravamen of a with a letter those results should be. those who and absent fraudulent study were not entered findings adequate of the for the the conclusion that panel trial between the Dr. Grunbaum’s disagree of the "contro- identity were entered convened developed leaa evidence trial” as a tests study, from the which of the about (ante, re- Morgan Q. you a letter written to Mr. J. L. Are familiar with Administrator, 1979, 11, September Contract on as Senior Instruments, Morgan in Mr. was advised that
Beckman the review which group examining allegations by yourself, the made they found found no evidence or—excuse me—no evidence was allegations, although to Dr. Grunbaum’s a number substantiate noted; discrepancies you are familiar with that of minor letter? were letter, yes, Mr. A. I am familiar and I said that with that truth, not because I have another letter Kochanski did from counsel tell the says just opposite. of leaa that Kochanski, Q. Director for Service Mr. who is the Associate Programs, Department Technology, U.S. and of Justice was not Office Research telling truth? A.That is correct. Young Dissenting Opinion by Boyle, Subsequent proficiency trial blind tests for labo- using multisystem using ratories other and those systems were conducted the Forensic Science Foundation from to 1983. The sum analyses total error rate on individual marker was percent protocol.23 per 1.6 of 3107 total tests disagree my colleagues’ I also with evaluation of regard testimony Dr. Rachael Fisher’s expert multisystem. qualified Dr. Fisher as an Michigan University and is Departments staff at State Pathology. of Pediatrics and She tes- enzymes tified that she run in had hundreds of systems in different her research on inherited multisystem, diseases, had read the manual for the opinion incorpo- system and offered her that necessary rated all the features that make "are protocols it work.” She further stated recognized and, pgm, Hp ead, glo, eap, specific question, reply you to the "If had a dried supply you blood, bloodstain a limited could gel develop use a thin method and all three on gel?”, "yes, answered, that one thin she one could certainly.” be done any opined,
In if, event Dr. Grunbaum there misapplication particular technique was a my judgment case, this is an issue be resolved the trial court. the Ninth As Circuit Gwaltney, noted in United States v 790 F2d (CA 9,1986): Q. panel report], fact, say that, "Although Doesn’t it [the preferable conflicts, personality to avoid consideration subject cannot be avoided in this case because it is the problem”? crux of the A, says, This is what it but this is not the truth. Q. panel’s report, This is the own is it not? Unfortunately, injected they A. that. sample Since one marker exclusion between a stain and a blood being compared stain, will exclude marker, donor as the contributor of the per per stain, the error rate is the indicator system’s reliability. *45 Mich Boyle, J. Dissenting Opinion Gwaltney complains appli- To extent instance, procedure
cation of the in the in this he does so wrong application forum. Criticism particular valid test instance bears weight, admissibility.
I would affirm.
Riley, J., concurred with Boyle,