STATE OF OREGON, Respondent, v. HERBERT JACKSON FUTCH, Appellant.
CC88-1270; CA A67775
Court of Appeals of Oregon
Argued and submitted September 30, 1992, resubmitted In Banc July 14, affirmed September 15, 1993
123 Or. App. 176 | 860 P.2d 264
Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Charles S. Crookham, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
EDMONDS, J.
Riggs, J., dissenting.
Defendant appeals his convictions for aggravated murder,
Defendant‘s convictions resulted from the murder of an elderly woman in April of 1988 in Seaside. The victim was last seen alive at about 5:30 p.m. on April 1, and her body was discovered shortly after 1 p.m. on April 2 in her home. Defendant was her next door neighbor. After the murder, he was arrested as a result of outstanding warrants in Umatilla County and the investigation of defendant‘s involvement continued while he was in custody pursuant to those warrants.
The first assignment of error is that the trial court erred in denying defendant‘s motion to suppress the evidence seized pursuant to a search warrant. The “affidavit” in support of the application for the warrant contains references to the results of a polygraph examination taken by defendant. Defendant‘s second assignment of error is:
“The trial court erred in denying defendant‘s motion to suppress the evidence, on the ground that his consent to take a polygraph examination had been coerced, that the examination results should have been suppressed, and that without the evidence of the polygraph examinations, the search warrant application failed to establish probable cause.”
Defendant argues that the “affidavit” did not establish probable cause.
In reviewing the issuance of a search warrant, we give deference to the issuing court‘s determination of probable cause. State v. Prince, 93 Or App 106, 112, 760 P2d 1356, rev den 307 Or 246 (1988). The sufficiency of an application for a search warrant depends not only on the facts asserted but also on reasonable inferences that may be drawn from those facts. State v. Ingram, 251 Or 324, 326, 445 P2d 503 (1968). In order to issue a search warrant, the issuing magistrate must determine that “on the basis of the record before him, there is probable cause to believe that the search will discover things specified in the application and subject to seizure.”
The “affidavit” in support of the application for a search warrant in this case was not a written affidavit, but a sworn oral statement made to the issuing judge pursuant to
The sworn statement relates the following information. The victim probably was murdered during the night of April 1-2. She had been strangled, her neck broken, and probably had been the victim of a sexual assault. Semen stains were found on the sheets. Defendant lived in the other half of the duplex occupied by the victim. The duplex had a common laundry room, and defendant knew the victim. As part of their investigation, the police interviewed defendant. He told them that on the night in question, he got off work at around midnight and drank in two bars until closing time. He said that because he was drunk, he did not remember what time he arrived at his girlfriend‘s apartment that night. His
After the polygraph examination, defendant began to cry. The officer described the interview to the issuing magistrate at that point as follows:
“[H]e [defendant] would start crying again and then he would say, [‘]Steve I‘ve killed somebody.[‘] And then I‘ve [sic] come back and asked him exactly what you‘re feeling, what you‘re thinking about, more things coming back to you. And then he‘d say, well then he‘d continue to cry some more and says, [‘]well, I killed somebody because you‘re telling me I killed somebody.[‘] Uh, uh, he calmed down after 5 or 10 minutes, he calmed down, I got him a cup of coffee and he relaxes a little bit, and he looks at me and he says [‘]Steve,[‘] he says [‘]you know, Saturday morning when I picked up that screen I knew that something was wrong but I did not know. I felt funny, I felt strange about picking up the screen and doing what I did with the screen, and now I know, now I know why.[‘] Uh, he continued to totally deny any involvement in, in, causing any injury to the victim. He denied uh, any knowledge about being at the Shilo. He denied anything about any memory recall after supposedly leaving Pudgy‘s restaurant.”
The officer making the application also told the issuing magistrate that the police had located semen on the victim
Excluding the polygraph evidence, the sworn statement in support of the application for the search warrant contains facts sufficient to support probable cause for the issuance of the warrant. Defendant‘s connection to the crime scene, his admission that he had “killed somebody,” the fact that he knew that the victim had been strangled when his roommate had not told him about that fact, and the fact that he offered a false explanation as to why the window screen might contain his finger prints suffice to give the issuing magistrate probable cause to believe that the seizure of defendant‘s blood would produce evidence probative to the investigation about who committed the crime. In the light of the fact that the application is sufficient when the polygraph evidence is excluded, we need not decide defendant‘s second assignment of error. The search warrant was issued lawfully, and defendant‘s motion to suppress the evidence seized pursuant to the warrant was denied properly.
Defendant‘s next three assignments of error are: (1) the trial court erred in holding the state‘s evidence of identification based on DNA testing to be admissible; (2) the trial court erred in allowing evidence of the DNA testing laboratory‘s use of “monomorphic probes” to validate the reliability of the DNA test results; and (3) the trial court erred in allowing “insufficiently-substantiated” expert testimony as to the statistical certainty of the state‘s identification of defendant.
DNA is the active substance in human genes and occurs in all cells that have a nucleus, including white blood cells, sperm, cells surrounding hair roots and cells in saliva. Human genes are carried in 23 pairs of chromosomes, which are long thread-like or rod-like structures that are a person‘s archive of heredity. One chromosome of each pair is inherited from each parent and the chromosomes make up the deoxyribonucleic acid, or DNA molecule in the human body. Except
First, defendant argues that the evidence of the DNA comparison between the samples seized at the crime scene and the samples taken from defendant‘s blood were “insufficiently reliable to be probative” because of the lack of quality controls in the testing process and an insufficient sample. He relies on the legal criteria established in State v. Brown, 297 Or 404, 416, 687 P2d 751 (1984), to evaluate scientific evidence. His arguments concern the admission of evidence under
“(1) The technique‘s general acceptance in the field;
“(2) The expert‘s qualifications and stature;
“(3) The use which has been made of the technique;
“(4) The potential rate of error;
“(5) The existence of specialized literature;
“(6) The novelty of the invention; and
“(7) The extent to which the technique relies on the subjective interpretation of the expert.” 297 Or at 417.
In applying those factors, the court warned:
“The existence or nonexistence of these factors may all enter into the court‘s final decision on admissibility of the novel scientific evidence, but need not necessarily do so. What is important is not lockstep affirmative findings as to each factor, but analysis of each factor by the court in reaching its decision on the probative value of the evidence under
OEC 401 andOEC 702 .”6 297 Or at 417. (Footnotes omitted.)
“Polygraph evidence may well divert the trier of fact from the direct and circumstantial evidence presented in a case to a distorted valuation of the polygraph evidence. Polygraph evidence is not just another form of scientific evidence presented by experts such as ballistics analysis, fingerprint and handwriting comparisons, blood typing and neutron activation analysis. These other tests do not purport to indicate with any degree of certainty that the witness was or was not credible. By its very nature the polygraph purports to measure truthfulness and deception, the very essence of the jury‘s role.” 297 Or at 440. (Footnote omitted.)
We conduct our analysis of defendant‘s argument that the DNA test results are not admissible under
“Notwithstanding the usual deference to trial court discretion, we as an appellate court retain our role to determine the admissibility of scientific evidence under the Oregon Evidence Code.” 297 Or at 442.
Similarly, in Plemel v. Walter, 303 Or 262, 277, 735 P2d 1209 (1987), the court said:
“Where the determination whether the probative value of evidence is substantially outweighed by the dangers set forth in
OEC 403 must be made on a case-by-case basis, we ordinarily defer to the determination of the trial court. * * * We conclude that this is not such a case. The probative value of [the evidence at issue] and the dangers in [its] presentation to the trier of fact will be substantially the same in every case. This court, as an appellate court, should determine the admissibility of this evidence.” (Citation omitted; footnote omitted.)
Although defendant‘s experts fault the methodology used by the laboratory in this case, numerous highly qualified and well-respected authorities agree that the theories underlying forensic DNA typing are generally accepted in the scientific world as a means of identification of the source of body substances. Defendant concedes as much. Since DNA was first identified in the 1940s, there has been considerable research concerning its use as a tool for identification. Much research and discussion surrounding DNA appears in a variety of professional journals, law reviews, and government publications. For instance, one such publication concludes that “forensic uses of DNA tests are both reliable and valid when properly performed and analyzed by skilled personnel.” The Genetic Witness: Forensic Uses of DNA Tests, Congress of the United States, Office of Technology Assessment, 7 (1990). That same publication reports that, since its introduction in 1986 into criminal proceedings,
“forensic DNA analysis has since been admitted into evidence in at least 185 cases by 38 States and the U.S. military as of January 1, 1990. This number does not reflect its even wider use in investigations that did not go to trial; although impossible to precisely determine, [the Office of Technology Assessment (OTA)] estimates that, to date, DNA tests have been used by law enforcement in over 2,000 investigations. OTA found DNA tests were used for criminal investigations and proceedings in at least 45 States and the District of Columbia as of January 1, 1990. Nor do the numbers reflect the use of DNA tests in thousands of paternity disputes annually.” The Genetic Witness: Forensic Uses of DNA Tests, Congress of the United States, Office of Technology Assessment, 14 (1990). (Emphasis in original; citations omitted.)
Moreover, when DNA evidence is offered, both the testing protocol used by the laboratory and the test results are
The only remaining question regarding the admissibility of DNA evidence in general is whether the probative value of DNA evidence is outweighed by its prejudicial effect under
“This rule [
OEC 403 ] requires trial courts and, in some cases, appellate courts to evaluate the degree to which the trier of fact may be overly impressed or prejudiced by a perhaps misplaced aura of reliability or validity of the evidence, thereby leading the trier of fact to abdicate its role of critical assessment.” 297 Or at 439.
DNA evidence is similar to other objective scientific evidence that commonly is admitted into evidence in criminal trials such as handwriting analysis, blood typing, fingerprint comparison, ballistic comparisons, hair sample comparisons, or comparisons of the physical properties of objects such as threads from clothing. Unlike polygraph evidence, which was the subject of the court‘s opinion in Brown, DNA evidence does not directly comment on the credibility of the defendant or invade the very essence of the jury‘s role. The evidence is not infallible, nor would it necessarily be considered as such by the trier of fact. Because of the availability of cross-examination and the defendant‘s ability to call other witnesses to rebut the opinions expressed by the prosecution‘s witnesses, the potential problem that the jury may be overly impressed by the aura of reliability of the evidence is lessened. The evidence may lead a jury to exonerate a defendant as well as to convict, and therefore could be meaningful evidence to the trier of fact. Rather than causing the trier of fact to abdicate its role of critical assessment, it enhances the ability of the jury to perform its constitutional function. Because of those factors and because it is the type of evidence that has been historically admitted into evidence in Oregon courts, we hold that DNA evidence is generally admissible under
“The goal of [the RFLP] approach is to break the DNA chain into small fragments known as ‘restriction fragments’ to identify the fragments which contain the polymorphic segments using a genetic probe, and then to measure the length of those fragments. In samples of a given individual, the fragments identified by the probe will be the same length, while in samples from different individuals the length of these fragments is likely to differ. Hence, if the probe identifies fragments of the same length in two samples, it is evidence that the samples have a common source.” Thompson & Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Va L Rev 45, 64 (1989).
Defendant does not attack the validity of the RFLP method in general. The RFLP testing process has been in use since 1985. Rather, he asserts that the specific procedures used in this case do not guarantee reliability. His experts testified that the opinion of the testing laboratory, that the samples obtained from the crime scene and the defendant “matched,” is in error and that the database used by the testing laboratory is “scientifically unacceptable.” However, their testimony was controverted by testimony by the state‘s experts. The record is a classic example of a “battle of the experts,” a phenomena not uncommon to all trials in which scientific evidence is admitted into evidence. There was expert testimony presented in both the state‘s and defendant‘s cases-in-chief, as well as on rebuttal and surrebuttal, on the validity of the testing process used in this case. Each point made was the subject of a counterpoint explaining why the point was not valid, which in turn was countered by more scientific opinion.
Defendant accurately characterizes the tenor of the record when he says:
“In the final analysis, [L]ifecodes [the testing laboratory] had either re-examined the data in this case with new
methods to account for problems identified by defense criticism or the criticism was incorrect. Dr. Beard [a prosecution witness] stood by his opinion that the samples obtained showed a match and established a connection between defendant and the victim.”
In the light of this record, we cannot say that the state‘s evidence, concerning the testing procedures used in this case, was so lacking that it had no weight whatsoever. Although reasonable factfinders might differ as to whether the tests performed were accurate, it would be improper for us to preempt the jury‘s determination of that issue on this record.
Defendant‘s next argument is that the use of a monomorphic probe by the testing laboratory to correct for bandshifting is not reliable. Again, we examine the “persuasiveness” of the state‘s evidence under
A representative of the laboratory that did the test testified that the monomorphic probe used in this case was a “fairly common probe that is used in other laboratories for a variety of purposes,” and a 1982 publication describing the probe was introduced into evidence. One of defendant‘s experts testified that monomorphic probes were “the best hope” for dealing with bandshifting and that he had criticized the FBI in the past for not using such probes. By the time of trial, a technology report had been issued upholding the use of monomorphic probes and an article about the use of such probes had been accepted for publication in a peer reviewed scientific journal. In the light of that evidence, defendant‘s argument fails.
“The population data base on which some calculations are based is too small and does not account for substructuring which can distort the results. In the absence of near-absolute reliability, the reliability of this type of evidence does not outweigh the prejudice to defendant, which is also near absolute.”
The probative value of statistical evidence based on body fluids is not a novel or new idea in this state. See, e.g., Plemel v. Walter, supra. The experts’ opinions in this case varied as to the odds of a random “match” between defendant‘s DNA and the samples seized at the crime scene. For instance, one expert testified that the odds were one in 66 billion, with his most conservative estimate being one in 6.3 billion that the DNA discovered at the scene could be other than defendant‘s. Another testified that the statistical calculation in this case was “probably quite accurate” and that the odds that an unrelated person other than defendant had left the semen stains were “ludicrously small.” She also said that the one in 6.3 billion figure was an “extraordinarily conservative way of putting an upper estimate of the odds of a match” and that it was unlikely that the odds were better than one in 16 billion. Other experts testified that the probability of a random match were one in 127 million.
One of defendant‘s experts testified that in a hypothetical example, the odds of a random match would be one in 116 for a given population group. Defendant asserts in his brief:
“Lifecodes actual results for one set of allele frequencies should have been one in 11, one in 19 and one in 625, generating a frequency for the aggregate pattern and the population of one in 130 thousand, not one in billions.”
Even if the defendant‘s experts are correct in their assessment of the statistical probability involved, that probability is sufficient to make the question of a “match” a jury issue. In sum, we reject defendant‘s argument that the DNA evidence in this case was inadmissible.
In his final assignment of error, defendant argues that the trial court erred in denying his motion for a new trial
Affirmed.
RIGGS, J., dissenting.
I am deeply disturbed by the majority‘s haste to admit novel scientific evidence of unparalleled complexity when that evidence is still in the early stages of its development and its reliability is yet unknown.1 As it hurries to admit forensic restriction fragment length polymorphism analysis (RFLP) for forensic purposes, the majority does not apply State v. Brown, 297 Or 404, 687 P2d 751 (1984), with due care and therefore errs in its analysis.
In the majority opinion, the seven Brown guidelines are applied to forensic DNA testing in general but not to RFLP testing in particular. Contrary to the majority‘s position that “[d]efendant does not attack the validity of the RFLP method in general,” 123 Or App at 188, defendant assigns error to admission of “the state‘s proffered evidence of identification based on DNA testing.” Read in context, this assignment of error refers to RFLP testing, as that was the only DNA evidence offered by the state.
Under State v. Brown, supra, we need to treat types of examinations, not just general fields, as novel scientific evidence. The defendant in Brown sought admission of a “peak of tension” polygraph test. The Supreme Court‘s analysis begins:
“There are several different types of polygraphic examinations, each based on different assumptions and each possessed of different degrees of accuracy. If the question is asked, ‘Should the results of polygraph examinations be admissible as evidence?,’ the response should not be an answer, but another question: ‘What type of polygraphic examination produced the results?’ ” 297 Or at 422.
The Supreme Court proceeded to analyze the “peak of tension” test at some length. 297 Or at 422-25. Later in the opinion, the Supreme Court criticized researchers who “do not distinguish which type of polygraph test is being evaluated.” 297 Or at 428. There is no suggestion in Brown that had the peak of tension test been admissible, the seven other tests would be examined under the laxer standards for admission of scientific evidence which is no longer novel.
Plemel v. Walter, 303 Or 262, 735 P2d 1209 (1987) further supports the application of the Brown guidelines to RFLP testing. In Plemel, the Supreme Court held that because the probative value of statistics derived from blood test results and the dangers in their presentation to the trier of fact will be substantially the same in all cases, an appellate court should determine their admissibility under the Brown guidelines.2 303 Or at 278. Here, the probative value and the dangers of forensic RFLP will be the same in all cases, so the Brown guidelines apply.
When we apply the Brown guidelines to forensic RFLP, we should keep in mind the Supreme Court‘s statement that
“what is important is not lockstep affirmative findings as to each factor, but analysis of each factor by the court in reaching its decision on the probative value of the evidence * * *.” 297 Or at 418.
It is also important not to let the guidelines blind us to the ultimate issue: has the proponent established that the novel scientific evidence is reliable. 297 Or at 418 n 6.
“Setting standards for forensic applications of DNA testing is the most controversial and unsettled issue. Standards are necessary if high-quality DNA forensic analysis is to be ensured, and the situation demands immediate attention.” The Genetic Witness: Forensic Uses of DNA Tests, Office of Technology Assessment, 10 (1990).
The OTA report recognizes that questions about technical standards and quality assurance remain to be resolved. The Genetic Witness at 23. The report, while favorable, does not translate into general acceptance of RFLP‘s forensic uses.3 The National Research Council, an equally august body,4 reports that important questions have been raised about the reliability and validity of forensic RFLP. DNA Technology in Forensic Science (Summary), National Research Council, at 1 (1992). The scientific community is hotly debating the reliability of forensic RFLP testing, and the technique has not yet achieved general acceptance.5 An expert witness for the prosecution admitted that he could not say that the database used in this case was generally accepted in the scientific community.
The second guideline in Brown is the qualification of experts. The Supreme Court held that the two polygraphers who tested Brown were experts because they were state licensed, had special training, and were experienced and prominent in their fields. The Supreme Court noted that state licensing is not a guarantee of expertise. 297 Or at 425-27.
In regard to RFLP, the academic qualifications of the molecular biologists, population geneticists, and statisticians who testify are often excellent. Though many RFLP experts are affiliated with the handful of laboratories in the country that do forensic RFLP testing, potential bias can presumably be revealed at trial. The most serious problem with the qualification of RFLP experts lies with the technicians who perform the highly complex tests and declare matches. Though their jobs involve tremendous responsibility, there is no federal or state oversight of their qualifications. The Genetic Witness at 76. The technician who testified in this case testified that her training on how to determine a match consisted of “simple visual instructions * * * of what is alike and what isn‘t alike.”6 A related problem is the lack of laboratory certification.
Under guideline two, RFLP testing fares better than polygraphy where some categories of expert witnesses are concerned, but questions about the qualifications of the technicians and the laboratories will ultimately diminish the technique‘s probative value until problems surrounding technician and laboratory certification are resolved.
Brown guideline three is the use that has been made of the technique. Use of forensic RFLP testing is neither rare nor widespread. The Supreme Court said that widespread use is not equivalent to general acceptance by the scientific community but has “some” bearing on probity. Guideline three is not particularly helpful in assessing RFLP‘s probity.
According to the OTA, the reliability of RFLP analysis hinges on these factors: procedures used, laboratory performance, laboratory record keeping, quality control and quality assurance. Genetic Witness at 7. The OTA report is more concerned with urging the implementation of standards to monitor these factors than in assessing the current state of the field.
Many researchers harbor grave doubts about the technique‘s reliability. Procedures used and laboratory performance are inadequate, according to Thompson and Ford. At the time of trial there were no state or nationwide standards by which the procedures used by laboratories could be compared or judged. Each lab‘s procedures were considered trade secrets and are not subject to peer review. Thompson and Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Va L Rev 45, 59 (1989). Quality control and assurance are made difficult by the nature of the samples used in forensic RFLP testing. In contrast to DNA samples used in paternity testing, research and medical diagnosis, the samples used for forensic testing are subject to degradation due to age and environmental factors.7 Samples used in diagnostic tests are
In summary, there is no consensus about and no blind study of the reliability of RFLP tests for forensic use. Problems with the databases and the statistics used to interpret the RFLP test results are another problem. At least at the time of trial databases were small, unvalidated and not subject to peer review. Lack of data on reliability reduced the Supreme Court‘s estimate of polygraphy‘s reliability in Brown. Here, while the lack of data on reliability does not reduce RFLP‘s probative value to zero, it does diminish it.
The fifth Brown guideline is the existence of specialized literature. 297 Or at 433. There is a great deal of specialized literature on the forensic use of RFLP. Most of the law review articles on the subject evidence alarm, while the scientific papers are more evenly divided between acceptance and rejection of current methods until standards and controls are implemented. We note that the National Research Council is worried about premature acceptance of the technique. DNA Technology in Forensic Science at 6.
The sixth Brown guideline is the novelty of the invention. The Supreme Court defined “novelty” as new or unusual. 297 Or at 434. Newness is hard to define in this context. The technique has been used since 1985, so it is neither brand-spanking new nor hoary with age. The technique is unusual for several reasons. Unlike the well-established use of DNA for paternity tests, there are no controls with RFLP testing.9 Also, the samples are degraded and subject to contamination, which increases the rate of false positives and false negatives. The need for population genetics also distinguishes RFLP testing from its more established cousin, paternity testing. Another unusual aspect of
The seventh Brown guideline, the extent to which the technique relies on an expert‘s subjective interpretation, is somewhat troubling. When the test in this case was performed, uncertified technicians “eyeballed” the data and declared matches on the basis of unvalidated, in-house standards. The same is not true of blood testing, ballistics, fingerprinting and other forensic tests. Tests in those areas are public, standardized, and the practitioners are certified. Lifecode‘s own scientific papers repudiate visual comparisons and suggest that matches be declared by computers. M. Baird et al, The Application of DNA-Print for Identification of Forensic Biological Materials, in Advances in Forensic Haemogenetics 396-402 (1988).
Summing up the Brown analysis of forensic RFLP, it appears that the technique did not have high probative value at the time of trial. As the OTA said, the technique has potential for high accuracy, but until the two laboratories implement greater controls and standards, the technique is somewhat undependable in practice. If RFLP is compared with polygraphy point by point, they have approximately the same probative value under Brown.
Having assessed the probative value currently possessed by forensic RFLP, we now turn to an
In Brown, the Supreme Court said that polygraphy presented two dangers: that the jury would overvalue polygraph evidence and that the jury would defer credibility determinations to the polygrapher. 297 Or at 440. In this case, the principal danger is that a jury will overvalue the RFLP test results. The court echoed the concern of United States v. Addison, 498 F2d 741, 744 (DC Cir 1974), that scientific evidence has the potential to assume an aura of “mystic infallibility” in the eyes of a lay jury. 297 Or at 440.
The majority gives short shrift to the danger that a jury might overvalue RFLP test results. Its discussion of the danger that a jury will overvalue RFLP test results is set out below.
“The [RFLP] evidence is not infallible, nor would it necessarily be considered as such by the trier of fact. Because of the availability of cross-examination and the defendant‘s ability to call other witnesses to rebut the opinions expressed by the prosecution‘s witnesses, the potential problem that the jury may be overly impressed by the aura of reliability of the evidence is lessened. * * * Rather than causing the trier of fact to abdicate its role of critical assessment, it enhances the ability of the jury to perform the its constitutional function.” 123 Or App at 186.
The majority presents as self-evident truth the proposition that a jury would not necessarily consider the technique infallible. However, most of the authorities who have considered the issue are worried. As the OTA report states:
“[B]ecause statistical probabilities introduced in DNA cases are extremely small (sometimes one in billions) and are generally presented - or at least perceived - as an absolute identification, courts must decide if numbers that are introduced can be understood by juries.” The Genetic Witness at 105.
Studies indicate that juries are overwhelmed by scientific evidence they do not understand. Egesdal, The Frye Doctrine and Relevancy Approach Controversy: An Empirical Evaluation, 74 Geo L J 1769, 1790 (1986). Jurors commonly misuse or misinterpret statistical information. Thompson and Schumann, Interpretation of Statistical Evidence in Criminal Trials, 11 Law and Human Behavior 167 (1987). The Supreme Court based its holding that admission of polygraphic evidence would divert the jury, in part, on a study of juror behavior. 297 Or at 440. Here, the available evidence suggests that the majority seriously underestimates the problem that juries will abdicate their role when faced with the
The majority suggests that an opposing party‘s ability to cross-examine expert witnesses and present its own expert witnesses lessens the “potential” problem that juries will be overly impressed with RFLP evidence. In Brown, the Supreme Court considered the opposing party‘s ability to call expert witnesses not a help but a hindrance, and referred to “time-consuming and confusing battles of expert witnesses.” 297 Or at 441. If anything, a battle between opposing armies of molecular biologists, population geneticists, laboratory technicians and statisticians would be more time-consuming and more confusing than a battle between polygraphers.
The Supreme Court also cited prejudice to the administration of justice as a consideration under
Prejudice to the administration of justice is likewise a problem with RFLP testing. The costs of providing expert witnesses to the state and indigent defendants would be high.10 And, debates over RFLP tests would be time-consuming at a time when trial court dockets are full.11 While prejudice to the administration of justice is not a dispositive issue in
Besides the problems of juror over-reliance and undue delay, the Supreme Court considered a third problem with polygraphy: it directly comments on witness credibility. This third problem is not present with RFLP analysis. However the problems shared by RFLP analysis and polygraphy: juror confusion and over-reliance, and prejudice to the
In regards to forensic RFLP, it appears that the probative value was not high in this case. And, however great the temptation to gloss over the reasons for exclusion: overvaluation by the jury, jury confusion over statistics, expense and delay, those problems cannot be ignored. I conclude that the reasons for exclusion substantially outweighed probative value.
I dissent.
Warren and Durham, JJ., join in this dissent.