*1
137 Caruso, Stephen Deputies A. Assistant Michael B. Jones and (Susan Defender, L. argued appellant the cause for Reis Public Defender, ner, attorney). Public Hulett, General, Attorney argued the cause
Nancy Deputy A (Deborah Poritz, Attorney T. of New respondent for General Jersey, attorney). opinion of the Court was delivered
The POLLOCK, J.
Defendant,
judgment
Harvey, appeals directly from a
Nathaniel
purposeful-or-knowing
of conviction and sentence of death for the
Schnaps.
jury originally
murder of Irene
A
convicted defendant
Schnaps’s
him to death in
1986.
murder and sentenced
October
in
that conviction
of errors
This Court reversed
because
admission of defendant’s confession and
the failure of the trial
give
charge.”
Harvey, 121
court to
a “Gerald
State v.
N.J.
(1990)
denied,
I),
(Harvey
A
cert.
499
111
.2d 483
U.S.
(1991).
charge”
phrase
In the absence of defendant’s the State relied sub- stantially that defendant was on DNA evidence establish Again, jury imposed Sehnaps’s killer. convicted defendant appeal, numerous penalty. death On this defendant raises including challenges of the DNA evidence points, to the admission jury charge. of all of defendant’s and to the After careful review arguments, we affirm his conviction and death sentence.
- -I Discovery Body and the Crime Scene A. ground-floor apart- Schnaps, age thirty-seven, alone in a lived Plainsboro, Jersey. complex in at the Hunter’s Glen New ment *18 17, 1985, appear at work on June a concerned After she failed to through an unlocked apartment to her and entered eoworker went body, immediately doorway. discovering Schnaps’s lifeless he On for assistance. called entry.
Investigating police signs no of forced The detected bedroom, however, struggle. Blood stains was a scene of obvious throughout Sehnaps’s naked carpet on the room. were head and body lay face-up on the floor. She had sustained severe wounds, Despite no facial wounds. the extensive head bloodstains present Sehnaps’s on chest and stomach. were body matting to the and the The of several small hairs victim’s suggested had at- of blood on her torso that someone absence body tempted wipe body carpeting around the clean. The Schnaps’s back was covered with blood. was wet from water. bloody pillowcase sneaker-print A a with a chevron white bore pattern Although bedding appeared letters “PON.” clean, mattress, underlying spring, blood stained the box bed, protruded cardboard box that from under the and a towel. box, empty The bedroom also included an Seiko-LaSalle watch box, empty jewelry In empty Olympus an camera and an box. bathroom, Schnaps’s poeketbook. investigators found The pocketbook any money. open and did not contain Autopsy
B. The 18, 1985, Shuster, County On June Dr. Marvin the Middlesex examiner, autopsy. medical conducted an He determined that Schnaps approximately had sustained fifteen blows to the head. wound, wide, largest long inch The six inches and one extended top general, to the of her head. from the front of her forehead curving curving or the skull wounds were either linear. The blows, by likely hammer and the linear wounds were caused iron, could been caused an item akin to a tire wounds have two-by-four, or a or axe. fractured dull hatchet Some blows injury Schnaps’s and caused to the brain. Blows had skull direct sides, from the right and left some from both been delivered front, from behind. but most appeared on sides of neck.
Triangular pressure marks both out, jaw was knocked and her of the victim’s teeth were Some cheek, neck, jaw, and forehead right sides of the broken. bruised, and she was cut behind one ear. were wound, any Dr. Shuster particular to attribute death Unable Schnaps. the blows had killed that the combination of concluded a matter of minutes. Sehnaps profusely had and died within bled *19 Harvey Interrogation Nathaniel Apprehension The C. 1. October Throughout and autumn of West Windsor the summer burglaries a of unsolved police perpetrator for the series looked eyewitness descriptions, they and sexual assaults. Based on male, perpetrator stocky a black under five- that the believed tall, usually travelled on foot or three-and-a-half inches who feet perpetrator of those by bicycle. police also believed that the Schnaps’s murder. Defen- might responsible for other crimes be description. physical fit the dant 28, 1985, investigating burglaries ar- police three
On October standing bicycle at sighted with his rested defendant after he was burglary soybean in One of the edge of a field West Windsor. subsequent “show-up.” identified defendant a victims police During questioning by on October West Windsor burglaries in committing a number of confessed to West defendant Windsor, agreed to assault. Defendant also as well as sexual point of his accompany police a car tour to out the locations on crimes.
2. October accompanied following morning, defendant At 10:00 a.m. on the p.m., At 1:15 detectives on a car tour of West Windsor. two Jamesburg of his car and his defendant consented to search an sexual assault. apartment for evidence related to unrelated Although gave apartment his father’s defendant as his address Jamesburg, estranged he lived with his wife West Windsor. Apparently, defendant feared that his wife would lose her welfare if he revealed that he lived with her. After defendant benefits form, police him signed the consent transferred to the Mercer County Detention Center. car, searching
While defendant’s the officers discovered two watches, missing including a Seiko-LaSalle like the one from They Depart- Schnaps’s apartment. notified the Plainsboro Police warrant, obtaining a ment. After search a Plainsboro officer Harvey’s Jamesburg apartment seized the watch. The search of yield any did not evidence. SO,
3. October Following arraignment Schnaps, defendant’s for the murder of investigating questioning point, officers resumed him. At one that “he [them] defendant said would tell about murder but speak spoke first wanted to to his father.” After defendant with father, police warnings. his failed to administer new Miranda thereafter, Shortly murdering Schnaps. defendant confessed to D. The First Trial 19, 1985, County grand jury
On November a Middlesex re *20 charging turned a three-count indictment defendant with the purposeful-or-knowing Schnaps, contrary murder of to N.J.S.A. (count one), robbery, contrary second-degree 2C:11-3 to N.J.S.A. (count two), second-degree burglary, contrary 2C:15-1 and to (count three). later, 21, days N.J.S.A. 2C:18-2 Two on November County Aggrava the Middlesex Prosecutor filed a Notice of 3:13-4(a) 2C:11-3c(2), ting pursuant to Rule and Factors N.J.S.A. making capital prosecution. alleged a defendant’s case The State following aggravating factors: outrageously 1. The murder was or horrible or inhuman in that it vile, wantonly aggravated
involved an to the victim battery 3c(4)(c).]
[N.J.S.A. 2C:11— escaping detection, committed for the apprehen- 2. The murder was purpose burglary committed for and or confinement sion, trial, robbery imprisonment defendant 3c(4)(f).] [N.J.S.A. 2C:11— engaged in the commis- while the defendant 3. The murder was committed committing burglary flight and or after commit, robbery sion of or an to attempt 2C:11-3c(4)(g).] [N.J.S.A. confession. Har heavily prosecution relied on defendant’s I, 415-17, jury 483. The found vey supra, N.J. at 581 A.2d murder, first-degree purposeful-or-knowing guilty of defendant murder, burglary, felony for which he robbery, second-degree and jury hearing, penalty-phase At a the same indicted. had been alleged aggravating factors and presence of all three found the of death. returned a sentence Harvey I
E. defendant’s conviction appeal, direct this Court reversed On trial court’s trial. The Court held that the remanded for a new Gerald, supra, comport with jury on murder did not instructions jury required that a must be 113 N.J. 549 A .2d which of intentional murder separately on the crimes instructed (SBI minder). Har At the time of serious-bodily-injury murder trial, murder did not render a defendant vey’s a conviction for SBI confession, Harvey claimed that the victim death-eligible. In his Relying part only once. then struck her struck him and that he confession, concluded that in his the Court on statements jury to have concluded provided a rational basis for evidence I, Harvey supra, injure Schnaps. to that defendant intended 413, A.2d 483. 121 N.J. at Harvey’s confession had been further held that
The Court
Hartley,
v.
103 N.J.
F. The Interim Between Trials prospect retrying Harvey Faced with the without his confes- sion, (Cell- prosecution Diagnostics Laboratory hired Cellmark mark) to conduct DNA tests on the blood recovered from the Cellmark, crime laboratory scene. the first commercial accredited Society Directors, Laboratory the American of Crime conducts exclusively. analyzed DNA tests It a bloodstained section of Schnaps’s cardboard, spring, piece box a bloodstained and a sample Schnaps’s of both and defendant’s blood.
G. The Retrial retrial, pretrial Defendant’s from the motions to the return of sentence, 25, 1992, the death lasted from November to December 16, 1994. trial court denied a motion for a new trial on 30,1995. January
1. Pretrial Motions Following hearing, the trial court denied defendant’s motion to suppress car, evidence seized ruling from defendant’s that defen- dant had consented to the search. The defendant also moved to exclude three-day the State’s DNA Jersey evidence. After a New (Rule 104) Rule hearing, Evidence 104 the trial court denied defendant’s motion and held that the State’s DNA evidence was admissible.
2. Guilt Phase lengthy jury-selection process, After a guilt phase began on 29,1994. November
a. State’s Case scene, The State adduced including evidence about the crime fifty-two photographs physical and various items of evidence. *22 bloody discovery
Investigating officers testified to box, empty empty print, sneaker Seiko-LaSalle watch box, box, Olympus all which jewelry empty and the camera into were admitted evidence. Jersey employed by the
Philip Beesley, New a forensic scientist Police, samples on control testified that blood work done State Schnaps Schnaps’s that defendant and revealed from both the plus, genetic marker type “one one minus” for the blood was PGM, enzyme type type “1” for CA II. Defendant was and type Beesley plus, plus” for and “2-1” for CA II. “one one PGM spring found and on further that bloodstains on the box revealed plus, plus” for piece as “one one PGM of cardboard tested II. concluded that those stains were type “2-1” for CA He blood, therefore, Beesley Harvey’s Schnaps’s. consistent not with only II in African phenotype that CA of 2-1 is found also testified Americans. nature of the
Dr. Marvin Shuster testified about the wounds part by Schnaps supra cause of her death. See suffered and the Mozer, by employed a New I.B. forensic scientist Theodore Police, from Jersey that one the hairs recovered State testified Schnaps’s belong not to her. testified that this back did Mozer “Negroid” consistent with hair had characteristics were Harvey. control taken from hair Har- pairs of seized from
Mozer also examined two sneakers “Pony” vey’s apartment and the size ex-wife’sWest Windsor 1/2 Harvey wearing Aided when he was arrested. sneakers that bloody footprint left at the enlarged photographs of the six scene, “Pony” explained Harvey’s sneakers were crime Mozer Although Harvey’s impression. consistent with the sneaker mark, bloody Mozer not have could sneakers “could” left definitively they had done so. conclude evidence, the State support of admission DNA Cellmark, Cooper, a senior presented from Julie two witnesses Word, microbiologist biologist, and Dr. molecular Charlotte They generally that supervisor of forensic casework. testified samples DNA tests conducted on the blood recovered at the crime genetically comparable scene were to defendant’s DNA. Defen- genotypes genetic dant’s for the markers examined were common one-in-1,400 only African Americans.
b. Case Defendant’s testify. did Defendant
His case consisted of two witnesses. A witness from Seiko testified that it had made thousands of watches like the one seized Shaler, from the trunk of defendant’s car. Dr. Robert Director of *23 Biology Forensic for the Office of the Chief Medical for Examiner York, City of New testified that he believed that the DNA “scientifically his tests were indefensible.” In the course testimony, pointed he out in strips. the imbalances the dots on the GYPA, HBGG, He found imbalances at the and loci. Dr. GC genes Shaler testified that at the locus an GYPA individual’s could intensity. disputed cause a difference in dot He further the one- in-1,400 calculation and genetic asserted that he believed that the makeup of the blood recovered from the crime scene could be approximately fifty found in in in one to one 200 African Ameri- cans.
c. The Verdict instructions, jury In its the court charge. included a Gerald Purnell, 518, 530-34, Consistent with v. State 126 N.J. 601 A.2d (1992), charged the court also on the unindicted count of felony hours, deliberating murder. After for three and one-half jury finding guilty returned its verdict purpose defendant murder, murder, ful-or-knowing felony first-degree robbery, and second-degree burglary. Penalty
3. Phase a. State’s Case exclusively The State relied on guilt the evidence adduced at the phase support proof aggravating of three factors: the murder victim, aggravated 2C:11-3c(4)(c); involved assault of the N.J.S.A. detection, the murder escape was committed to N.J.S.A. 2C:11- 3e(4)(f); during of a committed the course and murder was burglary, robbery 2C:11-3c(4)(g). and N.J.S.A. Case
b. Defendant’s 2C:11-3c(5)(c) (h), alleged and to N.J.S.A. defendant Pursuant time of the mitigating age factors: of the defendant at the ten murder; young age he defendant traumatized when was sister; uprooted the death of his older defendant witnessed grandparents his abused his home and sent to live with who from par him; feelings his of abandonment when defendant suffered him; exposed to and to send for he was ents moved north failed grandparents; his he was violence home of domestic parents; he is a in the home of his exposed to domestic violence father; continuing relationship his loving with caring and his contributions; including relationship with his financial his children daughter; mentally mentally and his disabled disabled brother and childhood all factors which relate to defendant’s family background. Moran, criminologist in the specializing Richard
Professor crime, age if were testified that defendant correlation between death, eligible for he could not be prison rather than sentenced age group prior age time he would parole which be Therefore, likely the chances of to commit violent crime. least minute. committing be *24 another violent crime would defendant histo- about social A forensic social worker testified defendant’s father poverty. in ry. Defendant was raised His often-absent old, two-year sharecropper migrant As a a and a worker. was accident, did not injured had been in an automobile but defendant four, and his defendant was he medical treatment. When receive trying in five-year old sister were left an unheated home. While stove, on her spilled kerosene light a defendant’s sister some match, lit a to death. nightgown. defendant she burned When leaving defen- parents Jersey, to New Defendant’s later moved During years. for grandparents in care of seven his dant his childhood, grandfather both and defendant abused his father. family loving a members testified that defendant was
Various father, developmentally-dis- earing also comforted his and who family jury not to sentence brother. Defendant’s asked abled defendant to death.
c. The Verdict hours, deliberating jury returned After for two and one-half for unanimous verdict that defendant had committed the murder 2C:11-3c(4)(f), N.J.S.A. purpose avoiding apprehension, and N.J.S.A. robbery burglary, 2C:11-3c(4)(g). in the course of a 2C:11-3c(4)(c), factor N.J.S.A. aggravating It did not find aggravated jury murder involved assault to the victim. The aggravating outweighed all further found that the factors mitigating aggravating factor alone out factors and that each weighed mitigating The trial court sentenced all of the factors. to death. defendant
Later, persistent of- the trial court sentenced defendant as robbery non-capital first-degree on the counts of fender second-degree burglary. Accordingly, defendant received a sen- year twenty-five parole degree with a on the first tence life bar robbery consecutively conviction to run sen- defendant’s death conviction, burglary capital tence for murder. On the defendant years prison in was sentenced to a concurrent term of five with a year parole two-and-one-half bar. Those sentences were made prison previously imposed consecutive to terms on defendant for Thus, sentence, aggregate unrelated crimes. defendant’s irre- spective penalty, plus sixty-five years of the death is life with a fifty-seven-and-one-half year parole disqualifier.
- - II We first consider defendant’s contention that the trial court jury it committed reversible error when failed to instruct the Mejia, v. State accordance with this Court’s later decision (1995). N.J. 662A.2d 308
- A-
Mejia argument begins
Evaluation of defendant’s
with
Gerald,
40,
Gerald,
In
supra, 113
Under
determination whether defendant
merely
kill
inflict
killed with the intent to
or
with the intent to
bodily injury,
linchpin
capital-punishment
serious
became
eligibility.
produced
provided
If
at trial
even a
the evidence
jury
rational
for a
to
a defendant of SBI murder
basis
convict
murder,
compelled
trial court was
rather than intentional
[either],
which,
findings
jury
specify
if
of those
“instruct the
209,
194,
Coyle,
for conviction.”
v.
119 N.J.
forms the basis
State
(1990).
Gerald,
jury’s key
A
can
a
verdict for
return
valid
agree
intentionally.
murder even if it cannot
that defendant killed
verdict, however,
support
imposition of
Such a
will not
486,
penalty.
Mejia,
In
death
Id. at
however, give Mejia we held that a failure to a non-unanimous charge could be considered harmless when the evidence of intent overwhelming to kill was and no rational basis existed for conclud ing only bodily that defendant had intended inflict serious injury.
Although defendant’s case was tried seven months before Harris, Mejia requested issuance of defense counsel us, charge argues on a non-unanimous verdict. Before defendant charge that the absence of a non-unanimous verdict coerced the jury returning capital into a verdict of murder. The initial then, inquiry, provided is whether the evidence a rational basis to bodily, find that defendant intended to inflict serious and not to kill.
-
-B
charge
Gerald/Mejia
Failure to
in accordance with
re
quires the reversal of a death sentence if the record below
“minimally adequate
provide
contains evidence that is
a rational
jury
basis for the
to hold a reasonable doubt that the defendant
Mejia, supra,
intended to
141
cause death.”
N.J. at
662A.2d
308;
547, 561,
Pennington,
see also State v.
119 N.J.
We
jury
wantonly
could have
actions have been “so
brutal
only
intended to cause death.”
concluded
the defendant
Harris,
488,
308; see, e.g.,
662 A.2d
Mejia, supra,
N.J. at
(victim
550,
and
supra, 141
at
-
-C
brutally
struck her fifteen
Schnaps
murdered. Her killer
instrument. He struck her with
times in the head with a blunt
in
frequency to fracture her skull
several
sufficient
force and
teeth,
jaw.
further
and break her
He
places, knock out her
bruising.
pressure
neck to cause severe
applied sufficient
to her
I,
Harvey
supra,
wrote
Reviewing that medical evidence
we
jury finding
repeated
support
can
of intentional
that “such
blows
121 N.J. at
-
-D
determining
In
for a
whether a rational basis existed
confined to the evidence in the record. See
Gerald
charge,
we are
III,
(“[W]e
581,
Bey
supra, 129 N.J.
Absent the
the evidence does not
a rational
supposition
basis for the
that defendant struck his victim to ward
off
attempts
distinguish Sehnaps’s
her attack. The dissent
murder from related cases where we have found harmless trial
provide
non-unanimity
courts’ failure to
According
instruction.
dissent, repeated bludgeoning
by
to the
to the
head
hammer-like
instrument,
defendant,
by
gun
such as the one used
“is not like a
range
person;
fired at close
into a
the victim’s death is not so
I,
(citing Hightower
supra,
assured.” Post at
- -E argument strengthened by Nor is defendant’s the trial court’s delivery charge. aof Gerald Given this Court’s reversal of the trial, charge in conviction the first the inclusion of a Gerald in the understandable, unnecessary. reversing second trial is if trial, confession, conviction the first which included defendant’s predetermine charge did not for such a in a we need retrial *29 Likewise, the inclusion of was excluded. which the confession aggravated and reckless offenses of charges on the lesser-included charge. Gerald/Mejia for a manslaughter compel the need do instructing when trial court’s caution charges reflect the Those jury.
- -F contention that he was unpersuaded also defendant’s areWe on charge. bases that contention Mejia Defendant entitled to a acknowledgment defendant entered when the State’s only burglary, not to commit apartment, he intended victim’s attempt Similarly to derive unpersuasive is defendant’s murder. pursuant argument, made N.J.S.A. support from the State’s defendant, 2C:11-3c(4)(c), committing aggravated as when kill, victim, not to but to cause inflicted some blows sault on the Schnaps intend to kill when he if defendant did not pain. Even changed that he apartment, the evidence reveals first entered her this occurred began he to assault her. Whether his mind once moment,” argues, or not is irrelevant. Post as the dissent a “brief 699A.2d at 686. Furthermore, charge required simply Gerald/Mejia is not 2C:11-3c(4)(c). Over prosecution relies on N.J.S.A. because if struck the whelming that even defendant evidence establishes merely pain, he struck the others to kill. to cause first few blows jury failing to tell the that it could trial court did not err defendant intended to a non-unanimous verdict on whether return wantonly jury brutal that the kill. Defendant’s attack was “so to cause that the defendant intended could have concluded 488, 662A.2d 308. Mejia, supra, 141 N.J. at death.” - - III trial court’s instruction on Defendant contends that jury considering non- improperly precluded the from murder alleges felony Specifically, capital murder. defendant offense jury prevented the from and the verdict sheet that the instruction *30 considering felony guilty murder until after it first had found him purposeful-or-knowing object of murder. Defense counsel did not Hence, charge to the or the verdict sheet. the issue a arises as error under Rule 2:10-2. The issue is whether the plain matter of clearly capable unjust producing error “is of an result.” We flawed, recognize charge that the was but conclude that the error capable producing was not of such a result.
- A-
purposely
knowingly causing
Defendant was indicted “for
or
Schnappes
bodily injury resulting
[sic] death or serious
in death.”
second-degree robbery
The indictment also included counts for
addition,
second-degree burglary.
In
the State relied on
(the
aggravating
factor N.J.S.A.
2C:11-3c(4)(g)
murder was com
during
robbery
burglary). Although
mitted
the course of a
and a
for,
charged
felony
defendant was neither indicted
nor
with
mur
Purnell,
der,
2C:11-3a(3),
court,
N.J.S.A.
accordance with
supra, 530-34,
N.J.
at
jury
601 A.2d
instructed the
on
murder, however,
felony
felony
A
murder.
conviction for
not
does
eligible
N.J.S.A.
penalty.
render
defendant
for the death
Dixon,
supra, 125 N.J. 2C:11-3c;
- - B jurors The court page instructed the one of the verdict provided considering sheet them with four choices when charge. They murder guilty, guilty could find defendant not murder, guilty aggravated manslaughter, guilty or of reckless felony murder as an present Page one did not
manslaughter. option. they if found defendant jurors court instructed murder, pages two and three they ignore to
guilty of were four, they were sheet, directly page to where proceed verdict Only jury if found defendant robbery consider the count. pages two and three. they proceed guilty of murder were defendant had jury to whether Page directed the determine two *31 purposely or know- Wiling by his own conduct and committed affirmatively, sheet direct- jury the verdict ingly. If the answered jury page to the Gerald page That directed ed them to three. issue, the intent to Wll or had acted with whether defendant jury injury. to consider bodily It also directed inflict serious Thus, felony unless the guilty murder. of whether defendant mur- guilty purposeful-or-knowing of jurors first found defendant felony-murder alternative. der, they would not have reached jury convicting the effect, from the verdict sheet distracted In murder, mur- purposeful-or-knowing felony but not defendant of der. case, jury given every opportuni capital
In
“the
must be
a
carrying
penalty.”
charge not
the death
ty to convict of the
(quoting
M.
- IV- Following hearing, permitted a Rule 104 trial court prosecution to admit into evidence the results of a DNA test kit kit, “polymarker” known as the “PM” or test. The which is by manufactured Roche Laboratories marketed the Per- Corporation, kin-Elmer “AmpliType is sold under the trade name polymarker PM.” important tying This evidence was an link in accept defendant to the crime. We the admission into evidence polymarker testing, primarily results of which is used on small material, samples genetic such as blood stains. record, community
On this we conclude that the scientific generally accepts polymarker testing, including dot-intensity anal- ysis. Generally speaking, dot-intensity analysis ais means of sources, identifying single sample from two such as a blood stain people. may that contains the samples blood two Such be present at the of a scene violent crime. experts genetic State’s identified the markers for the victim perpetrator. Through
and the polymarker testing they deter- box-spring sample, mined which contained the victim’s blood, genetic also contained blood with the same markers as experts geno- defendant’s blood. The concluded that defendant’s *32 type genetic one-in-1,400 by only for the markers was shared African Americans. We hold that the trial court did not err in admitting testimony experts the of the of State’s about the results weight jury. the DNA tests. The of that evidence was for the testing evolving general acceptance DNA is an science. The or rejection may change of a test over time. Even a test that is moreover, accepted generally, may generally attract critics. One accepted fragment length polymor- DNA test involves restriction (RFLP) phism analysis. sample Because the blood in this case small, experts analysis. was so the could RFLP State’s not use Instead, they Polymerase used tests based on a Chain Reaction (PCR): (PM) (DQ DQ Alpha) polymarker the HLA ALPHA and tests. explanation The explanation of DNA. a basic begin with
We methods. scientific terms and describes necessarily uses technical to the extent neces- concepts discuss the basic purpose is to Our to admit trial court’s decision comprehension of the sary for evidence. DNA objections raised discussion, review we shall of our
In the course DNA to the admission the dissent by defendant and rejected by arguments repeats Generally, the defense evidence. however, objections dissent, raises several trial court. The appeal. Both at trial or on this either raised the defense objective precluding of the dissent share defense and murdered that defendant proving of DNA evidence admission to the conclusion scrutiny of record leads Schnaps. Irene Our admitting the DNA evidence. did not err in that the trial court jury. a matter for weight of the evidence was - A- (DNA) Deoxyribonucleic Acid 1. (DNA) genetic materials a molecule
Deoxyribonucleic acid of every person, each spiral or ladder. shaped like a double-helix Thus, person’s DNA. copy of a nucleus contains cell with body. human blueprint for the serves as a DNA composed of two ladder are of the DNA helix or The sides Rungs steps phosphates. or comprised sugars and chains rungs pairs ladder. The consist two sides of the connect the “nucleotides,” four which consist of or molecules called “bases” (T). (G), (C), (A), guanine thymine cytosine types: adenine specific order bond separate from DNA strands Nucleotides DNA ladder. C the sides of the rungs that connect to form Thus, if G, example, for A with T. only with bonds bonds CGAT, corresponding are on one strand the nucleotides will be GCTA. on the attached strand nucleotides comprises along the DNA molecule pairs of the base The order approximately Human DNA contains genetic code. an individual’s *33 pairs, “genome.” three to four billion base known as the These pairs govern production bodily proteins. base gene A sequence responsi- is a nucleotides on a DNA strand producing protein. sequence for particular ble The vary. possible nucleotides can The or sequences variations are Thus, called “alleles.” an simply gene. allele is a version of a gene’s position A aon chromosome is locus. its different individuals, genes may “polymorphic,” meaning they may be take different contain sequences pairs. forms or different of base polymorphic genes, vary another, The which person from one provide the basis for DNA identification. Most DNA has no function, important known but even non-functional remains DNA analysis. in forensic mitosis, division,
During copied. or cell each chromosome is paired separate, dividing nucleotides the chromosome’s DNA separate Free-floating molecule into two strands. nucleotides exposed separated attach nucleotides of the strands in G-C, Thus, A-T accordance with the rule. strand each reconsti- divides, tutes identical DNA molecules. When the cell these two newly-created “daughter” identical enter chromosomes cells. genetic composition original Each new cell has the identical as the cell. composition.
All cells same contain the chromosomal No two individuals, twins, except identical have the same nucleotide se- quences throughout DNA. testing their DNA conducted on cells blood, skin, semen, parts body, from various of the same whether saliva, case, yield or hair the same will results. As this DNA analysis identify material, can help genetic donors of such as blood. (RFLP) Length
2. Restriction Fragment Polymorphism, present, widely At accepted test is RFLP most DNA See, (Colo. analysis. e.g., People, v. Fishback 851 P.2d 1993) (holding dispute as to that “no serious exists whether the
158 analysis generally accepted”); are in RFLP techniques involved (1994) 20, 457, Moore, (concluding Mont. 885 P.2d 468 State v. 268 technology is gener RFLP theory underlying DNA and “the widely is ally [] attack and such evidence open serious not jurisdictions”); and in state federal courts admitted various (1995) Streich, (noting that 163 658 A.2d 48 State v. Vt. of any under standard admis any find recent decision “we cannot on” sibility to admit the DNA match result based which refuses Marcus, Recently, Appel v. technology). State the RFLP community generally recognized that the scientific late Division (1996). A.2d 221 analysis. N.J.Super. accepts RFLP stated, testing by RFLP method is Judge As Skillman “DNA sufficiently its generally accepted and is reliable to warrant admis A.2d RFLP Id. 221. sion in criminal cases.” description analysis ease. of employed in this A brief the DNA however, background RFLP, may useful information. be as regions as non-functional of DNA known RFLP focuses on (VNTRs). repeats regions, In these tandem variable-number 10,000 nucleotides, pairs of a typically range from 500 to which thirty-five pairs of fifteen to base is sequence approximately core along many consecutively chromosome. The repeated times given repeats among of individuals. At a locus or number varies chromosome, sequences re- a with different numbers of site on as Because peated units known VNTR alleles. different are repeats, these alleles alleles contain different numbers VNTR Council, by lengths. National Research can be identified their (1996) (NRG Forensic DNA Evidence 14-15 The Evaluation of Report). sample sample DNA and the analysis,
In RFLP the recovered enzyme, suspect a which from the are treated with restriction on DNA helixes. It specific pattern out a nucleotide seeks VNTRs, fragments sites. Because of then the molecules at those sites, lengths resulting of the the locations these process among Through a called fragments, differ individuals. “gel electrophoresis” fragments the DNA sorted size and are split single into strands. nylon These strands bond to a mem- brane, specially where a radioactively-tagged treated and single DNA, strand of “genetic probe,” called a applied. genetic The probe targeted bonds with a sequence. VNTR a, nylon placed membrane is then piece contact with of X- ray radioactivity film. The probes film, exposes produc- ing bands, pattern like the bar-code on a in supermar- box ket, where This probes have attached to VNTRs. bar-code image is called an “autoradiograph” or “autorad.”
Fragments from different donors contain different numbers of units, repeat with a corresponding lengths variation in the fragments. Typically, probes radioactive days need or even weeks expose to the film. Generally Id. at 18. speaking, RFLP testing is time-consuming may require complete months for a analy- sis. Ibid.
Comparison of the location of the bands reveals whether the targeted subject’s VNTR in the DNA matches the DNA from the genetic recovered analysis material. That can high lead with a degree certainty of to a correlation samples. between the DNA
The next step analysis involves population statistics, of which reveals the likelihood of a random samples. match between the Using single-locus probes, probability finding the of a random match between unrelated individuals on all bands of a DNA fingerprint is less than one in ten Using million. one multi-locus probe, probability thirty-three about one in billion. Thomas Fleming, Annotation, M. “Admissibility of DNA Identification Evidence,” (1991). 84 A.L.R. 4th problem
One testing with RFLP requires is that it large quantity of high-quality genetic material. example, For it re- quires quarter-sized least a blood stain or a dime-sized semen stain. samples Unless those fresh, are relatively recovered when they degrade fragments will into too small for analysis. RFLP Id. at 320. attempted Cellmark testing RFLP in this case. The however, samples, degraded permit were too analysis. RFLP technology, involved Thus, to a newer which turned Cellmark (PCR). Polymerase Chain Reaction 3. PCR here, quality genetic material
When,
quantity or
as
to allow RFLP
is insufficient
from a crime scene
recovered
amplify
analysis,
process
the PCR
forensic scientists have used
testing.
for
The PCR
produce
an amount suitable
DNA
segment
DNA
of times. NRC
process
copy a
millions
can
product,
resulting genetic
Report, supra, at 22-23. With the
Fleming,
probe” analysis.
“allele-specific
scientists can conduct
supra,
The PCR during Through heating DNA replicates mitosis. DNA itself cycler, separates the helix into sample process in a thermal segments DNA are separate composed strands. Primers short Then, target sequence of DNA. a basic to define the added enzyme polymerase DNA and the four containing solution sample. primed added to the DNA basic nucleotides are sepa- on exposed with the nucleotides pair added nucleotides G-C, pairing with A-T target-strands accordance rated segments original segment, rule. DNA two identical From cycler through cycle approximately its result. The thermal runs *36 times, by a factor thirty-two amplifying original sample the of two effectively amplifies only Currently, technology billion. PCR regions Accordingly, PCR cannot be used small DNA. longer testing. Report, supra, for RFLP amplify VNTRs NRC 69-70. advantages testing have over methods several
PCR-based analysis. They relatively simple processes can RFLP are time, period twenty- yield within a short often within results case, importance the particular present four Of to the hours. possible also DNA tests on small amounts of process PCR makes genetic material. tests, however, disadvantage
A is that the identi- of PCR-based Hence, scientists must genes fied have fewer alleles than VNTRs. produce examine loci to more the same amount of information about profile. the likelihood that two a individuals share Id. at 71. Also, some of the loci examined PCR-based tests are functional genes. markers, genes Unlike non-functional VNTR functional susceptible selection, are susceptibility more to natural might matching undermine their in samples. usefulness DNA testing. Ibid. Contamination also in is of concern PCR The technology is so efficient that even small contaminants can be replicated along targeted with the DNA. Ibid. used Cellmark two types of in DQ PCR-based tests defendant’s case: HLA Alpha the (PM) (DQ Alpha) polymarker tests. DQ Alpha
a. HLA Test DQ The Alpha test reveals an individual’s form of alleles for the human-leukocyte-antigen DQ Alpha gene. DQ purpose The of the Alpha idéntify genotype test is to or the the two alleles that DQ comprise Alpha gene present sample. in the DNA That compared DQ result Alpha genotype then with the match, suspect. genotypes If suspect then the cannot be possible excluded as a population donor. Genetics databases then produce frequency suspect’s with genotype appears which in population. Although eight alleles have been identified at locus, DQ Alpha commonly six are used in forensic work. Ibid. Each of distinguished by specific those six alleles can be enzyme probes. DQ Ibid. The six for Alpha alleles are denom- 1.1, 1.2, 1.3, 2, 3, DQ gene, inated as For Alpha and 4. there twenty-one possible pair are genotypes. combinations or results, interpret To strip the test uses a test with six chemical Each specific enzyme probe dots. dot of a consists selectively DQ Alpha binds to one of the six alleles. Because the probes, DNA, membrane, rather than the are fixed on this is called a blot. strip “reverse” Ibid. test This is then immersed containing solution product. DQ Alpha the PCR for alleles present product the PCR attach corresponding then to their enzyme probe bond, strip. on the test the alleles the dots Where
162 two turn blue to indicate which six dots will Two of the turn blue. If an individual is genotype. an individual’s alleles constitute identical, DQ are Alpha two alleles homozygous, meaning that the dot will turn blue. one blood revealed DQ performed on defendant’s Alpha test 4,4 homozygous. Approxi- DQ is or genotype Alpha for that his (about people) population one-in-six mately of the entire 17% (about one-in-eight) population African American 11.9% of the genotype. share box-spring from the on a stain
DQ Alpha performed tests blood 2 DQ Alpha alleles and 4. presence of the indicated the fabric 2,4. DQ genotype Alpha was Schnaps’s for donor, single spring were from a stain on the box If the blood possess because he does could have been excluded defendant alleles, matched the howev- Schnaps, genotype the 2 allele. whose however, If, box er, the blood on the excluded. could not be donor, i.e., one sample, from more than spring from a mixed 4 is that excluded. The reason cannot be then defendant allele, present in the blood stain. possessed, was which defendant evidence, that the box- prosecution established other Based on sample. a mixed spring stain was jurisdictions have admitted Jersey and in other
Courts New scientifically DQ Alpha test as technology and the results of PCR 277, Dishon, 254, N.J.Super. 687 A.2d 297 v. reliable. See State (1997) denied, 144, 112 693 A.2d (App.Div.), 149 N.J. 1074 certif. hearing unnecessary to establish the (finding that testimonial Williams, DQ testing); v. acceptance Alpha DNA State general (Law Div.1991) 369, 381, (holding that A.2d 960 N.J.Super. 252 599 accep pointed general “overwhelming persuasive evidence” Haddock, test); 257 DQ Alpha State v. process and tance of PCR (1995) DQ Alpha 964, (admitting test P.2d 152 results Kan. Palumbo, reliable); scientifically People v. 162 Misc.2d as (same); Gentry, h v. 125 Was .2d (Sup.Ct.1994) State N.Y.S.2d 197 — denied, U.S. -, 116 S.Ct. cert. 888 P.2d (1995) (same). L.Ed.2d *38 does admissibility PCR/DQ
Defendant
not contest the
of the
Alpha
however,
objects,
admissibility
test
He
results.
to the
test,
polymarker
validity
the
of the
results
the dissent
which
concedes. Post
b. The Test test, DQ Alpha The PM test works like the but instead of testing composition gene, genes. for the of one it tests for six The genes density six in lipopro- tested the PM test are: LDLR flow A), receptor), tein GYPA (glycophorin gamma- (hemoglobin HBGG D7S8, globulin), (Group Component). and GC Each of those genes consists combinations of either two or three different test, test, alleles. A DQ Alpha similar to used in the blue-dot genotype gene. explained by determines for each As Ms. Cooper, of the experts, begins by one State’s the PCR test Then, amplifying amount of passed DNA. the DNA is over a polymere strip. locus, type test When DNA finds its on changes the dot color. Each combination of alleles is associated population frequency expressed with a percentage. that is as a ascertaining sample’s genotypes population frequen- After a cies for genes, each of the five a individual mathematical formula “product known as the rule” reveals the that another likelihood subject’s individual in relevant population would share the test rule, genotype all targeted genes. product for five which gives profile frequency population product in a as a of coeffi- frequencies, cients assumption and allele on the rests population randomly be single, mating can treated as a unit. NRC Report, rule, supra, product population at 5. Under the frequencies genotypes each of multiplied for the six are one another. genotype present LDLR is
Defendant’s for in 56% 50%, population, African-American his GYPA HBGG in his 27%, 45%, 17%, DQ Alpha his D7S8 his GC in and his in 11.9%. rule, Applying product prosecution’s expert testified that genotype defendant’s Americans would share Afincan one-in-170 D7S8, product GYPA, HBGG, loci. The LDLR, and GC for the = .0058, or, x x x x .17 .27 .45 .56 .5 equation would be: rule By ratio, African Americans. one-in-170 about expressed as prod- frequency in the DQ Alpha genotype including defendant’s loci, only one-in-1400 polymarker along with the equation uct rule genotype composite defendant’s would share African Americans x x be: .56 .5 product equation rule would genes. The for all six *39 = ratio, result Expressed x x as a the x .00069. .45 .17 .119 .27 African Americans. one-in-1400 is about Technique Dot-Intensity 4. The or Association-of-Alleles test, objection polymarker to the general to his In addition accurately polymarker test cannot the defendant contends trial, this experts At the described analyze sample. a mixed-blood test on a mixed- analysis interpreting polymarker the of of method of alleles.” Scientific involving “the association sample as blood “dot-intensity” analysis, description articles describe it as generally opinion. in this adopt we Word, experts, hearing, one of the State’s pretrial Dr. At the single designed so that if a polymarker test is testified that the (i.e., A, B heterozygous alleles pair contributes a of blood source A, A), equal turn B, two alleles will blue not or C but however, If, contribute the two or more blood donors intensities. than allele, intense or a darker blue would be more same dot only one such allele. The same donor contributed if an individual the same two of if one blood donor contributed result would follow B, (i.e., A, A or homozygous alleles pair in a allele so as result B).A, sum, sample is whether a the determination B but intensity of depends blood on the than one source of from more color of the dots. (1) bloody samples: on a PM tests on three performed Cellmark (2) only; on a towel, contain from the victim assumed to blood (3) blood; portion from a of the box- and sample of defendant’s polymarker of blood. The that contained a mixture spring cover test spring on the blood removed from the box revealed the (A B) LDLR, presence possible GYPA, of both and alleles for and D7S8, (A, C) B, possible and all three for alleles and HBGG and most, possess, GC. An can individual two different alleles. Consequently, presence of three different at the alleles HBGG sample and GC loci demonstrated that the DNA from the box spring mixture was a of blood from more than one individual.
Dr. Word testified that PM test conducted on mixed- sample spring blood from the box revealed two distinct sources. Two sets of alleles caused the color imbalances in the dots from sample. the box-spring strip, test On the some of blue dots darker, appeared lighter. dots, but others were None however, lighter than dot-intensity the control dot. Those presence pairs imbalances resulted from some alleles singly. other dot-intensity
Using analysis, explained Dr. Word that a theoreti- cal subtraction from victim’s blood the PM results of the box-spring sample genotype subject. revealed the of the second explained (A, B, She that if all present three alleles for GC were C) A and the strip, allele-dot was darker on the test sample alleles, allele, contained two A one B and one C allele. *40 donors, then, The of genotypes contributing had be either AC, AB AA and or and other BC. No combinations consisted of alleles, only two A B and one each of and C. dot-intensity analysis
Based of on the blood stain from the box spring, experts the State’s concluded that the could blood have of Schnaps’s. been mixture defendant’s blood of with that (1) assumptions analysis: Cellmark made two in its Schnaps donor to on box-spring sample; was a the blood (2) people. was a two the blood mixture of spring presence
The for on PM test GC the box revealed the A, B, alleles. was and C The A dot darker than the other two. That composition difference indicated that the of the GC the sample alleles, plus consisted of two A the B If and C alleles. donors, sample possible had two combinations were AA and remaining The BC, Schnaps type AC for GC. or AB and AC. was genotype AB. was had to be AB. Defendant’s donor therefore B sample the A and box-spring on the revealed The D7S8 test alleles, being only possible combina- A dot darker. The with the tion, then, type for The Schnaps AB. was AA D7S8. was AA and genotype AB. AB. Defendant’s was remaining donor had to be A, B, equal alleles at revealed the C The HBGG test darker, Dr. testified that no dot was Word intensities. Because BC, CC, AB and only AA and possible combinations could be type BB for HBGG. Cellmark Schnaps and BB. or AC donor, then, remaining had to be AC. Defen- that the concluded genotype was AC. dant’s being B the A dot revealed A and alleles with
The GYPA test The other donor had to Schnaps type was AA for GYPA. darker. AB. Defendant was AB. be being B the B dot A and alleles with
The LDLR test revealed type LDLR. The other donor had to Schnaps was AB for darker. genotype for LDLR was BB. be BB. Defendant’s results, experts concluded that the State’s Based on those test to the Harvey Schnaps nor could be excluded as donors neither test, part sample. with the RFLP box-spring blood As infra rV.A.2., analysis population step involves statistics. the second present part ease is at of the statistics Our discussion infra VI. -
- B 1. Standard Review appellate the standard of question
The first concerns admissibility on the of DNA review of a trial court’s decision deter Generally, appellate courts review a trial court’s evidence. of discretion. admissibility of evidence for an abuse mination of the (1969). Conklin, 540, 545, v. 54 N.J. A.2d 1 State *41 however, remains, the abuse-of-discretion question whether stan-
167 dard apply should concerning decisions the admission of novel begin by scientific evidence. recognizing We that the best time to make the record on admission of such evidence is in a Rule 104 hearing. party offering the evidence proof. bears the burden of
Windmere, Co., Inc. v. International Ins. 373, 378, 105 N.J. 522 (1987). A.2d 405 lawyers Trial myriad must make choices in deciding present how best or refute novel scientific evidence. Those choices construct the universe of discourse within which the trial court decides whether the community scientific considers the acceptable evidence generally. The choices also influence the presentation of the jury evidence to the appeal. and the record on many issues,
Unlike evidentiary other whether the scientific community generally accepts a methodology or test can transcend Miller, particular dispute. People v. 173 Ill.2d 219 Ill.Dec. 43, 61, (1996) (McMorrow, J., N.E.2d concurring), — denied, cert. U.S. -, (1997). 117 S.Ct. 137 L.Ed.2d In determining general acceptance of novel scientific evidence case, in one generally court will establish the acceptance of States, v. evidence in Jones United other cases. 548 A.2d (D.C.1988). Notwithstanding the position trial court’s better shape determinations, the record and make factual appellate important courts retain an residual questions role for concerning courts, admission of scientific evidence. Like trial appellate digest expert courts can testimony as well as review scientific literature, judicial decisions, and other authorities. To the extent general acceptance focuses on issues other than a witness’s credibility qualifications, or deference to the trial court is less Miller, supra, appropriate. 219 Ill.Dec. 60-62, 670 N.E.2d at (McMorrow, J., 738-40 concurring). reviewing
When a decision on the admission of scientific evidence, appellate an court should scrutinize the record and independently authorities, review including judicial the relevant opinions and scientific rapidly literature. changing world of science, continuing modem may research affect the scientific *42 168 technology. By reviewing post-
community’s acceptance of a novel
appellate
rapid pace
court can account for the
publications,
trial
an
technology.
continuing
recognizes
review also
of new
may change
of trial and the
general acceptance
between the time
Bible,
549,
appellate
v.
175 Ariz.
858 P.2d
time of
review. State
denied,
1046,
1578,
1152, 1189
(1993),
511
114
n. 33
cert.
U.S.
S.Ct.
State,
(1994);
573,
understand the evidence training, knowledge, thereto or education skill, may testify experience, expert or otherwise. the form of an opinion *43 effect, requirements on the imposes rule three basic In this testimony: expert admission of (1) subject matter that is the ken of must concern a beyond the intended testimony average juror; (2) subject at a state of the art such that an of the must be expert’s testimony reliable; could be sufficiently
testimony
(3)
the intended testimony.
the witness must have sufficient
explain
expertise
(1984);
1991
702,
In criminal cases we expert reliability of testi- Frye determining the scientific test for mony. Frye, supra, the wrote: In court admitting go long from a in deduced testimony courts will [W]hile way expert thing
well-recognized
the deduction
or
from which
scientific
discovery,
principle
gained general
in the
must
established to have
acceptance
is made
be sufficiently
belongs.
in which it
particular
field
added).]
(emphasis
[
for
scientific evidence
toxic-tort cases.
Rubanick,
404,
1079;
pra,
supra,
A
technology
of a
scientific
prove
general acceptance
ways:
can
its
in three
(1)
general
among
as to the
those
by expert
testimony
acceptance,
profes-
on which the
sion,
witness based his or her
premises
proffered expert
analysis;
(2)
legal writings
indicating
authoritative
scientific and
the scientific
by
underlying
community accepts
premises
proffered testimony;
(3)
judicial
gained general
indicate the
have
opinions
expert’s premises
acceptance.
(citing
171
518-20,
A.2d
N.J.Super.
522
King, 215
procedure); State v.
test,
presence
(finding isoenzyme
which detects
(App.Div.1987)
455
reliable);
scientifically
systems, held
enzyme
of six distinct
blood
378-83,
(holding
Williams,
3. General
a scientific commu
general acceptance within
Proof of
Windmere,
379, 522 A.2d
supra, 105 N.J. at
nity
elusive.
can be
counting
simply
than
how
Satisfying
test involves more
405.
technology.
reliability
proffered
many
accept the
scientists
Proving
Williams,
A.2d 960.
supra,
N.J.Super.
at
application of the scientific
acceptance
the strict
general
“entails
method,
extraordinarily high
proof
requires an
level
which
controlled, consistent,
experi
validated
prolonged,
on
based
Rubanick,
Essen
supra, 125
General
accuracy
or the exclusion of
agreement
of the test
plete
over
Biunno,
N.J.
Richard J.
Current
possibility of error. See
Johnson,
702;
Evidence,
v.
4 to
State
Rules
Comment
N.J.R.E.
(1964).
necessary
146, 171,
is it
A.2d 809
Neither
42 N.J.
procedures are
methodology, and
techniques,
that the
demonstrate
acceptance
the scientific
necessary
it
within
infallible. Nor is
Tate,
64, 83, 505 A.2d
community
v.
102 N.J.
be unanimous. State
Windmere,
(1986).
theory
Every
has its detractors.
scientific
Here,
burden is
4. Test proponent
A prove general of scientific evidence can ac ceptance through expert testimony, publications, judicial opin or ions. Expert Testimony
a.
pretrial hearing,
At the
Dr. Word testified that the scientific
community generally accepts
polymarker
scientifically
test as
agrees.
reliable. The dissent
Post at
Defendant polymarker test, asserting subject that some laboratories still it to validation expert hearing, studies. Defendant’s at the Rule 104 Dr. Robert Shaler, polymarker testing yet testified that appropriate was not for procedures use casework and that Cellmark’s validation were flawed.
The trial court concluded: Based of Dr. Charlotte and the scientific upon expert testimony Word, literature admitted into has evidence, been validated to be sufficiently PCR/PM *46 and scientific community; in has been the relevant casework; used accepted and reliable results. uniform reasonably produces to conclude that the scientific the record leads us Our review of accepted polymarker test. Dr. Word community generally has polymarker’s independent tests have validated established that employed have highly-regarded laboratories reliability and that reliability of the Only defendant doubts the test casework. PM test. Publications
b. moreover, approve publications, Scholarly and scientific test, polymarker the State support In of the polymarker test. Herrin, article, & George Nicola Fildes published submitted one AmpliType Test of the PM DNA Reynolds, “Evaluation Rebecea Sci. 1247 Samples,” 39 J. Forensic System on Forensic Case (1994) (Herrin article), articles that since have been and two “Consistency Reynolds, and Nicola Fildes & Rebecca published: Between Seven Labora- Reproducibility AmpliType of PM Results (Roche (1995) Results,” Sci. 279 Trial 40 J. Forensic tories: Field al., Budowle, Population study); and Bruce et “Validation field (PM HBGG, D7S8, LDLR, GYPA, and and Gc Loci Studies of the Typ- Loci), HLA-DQx Using Multiplex Amplification And A and (FBI (1995) All Procedure,” Report). Forensic Sci. 45 ing J. reliable that the PM test was of those documents concluded three Further, forty-four a list of the State submitted for casework. lectures, seminars, workshops and which posters, presentations, regarding polymarker-related issues forensic scientists discussed research, had attended fifteen testing, and results. Dr. Word reliability of the on the twenty and had lectured such lectures many meetings. of the polymarker test at scholarly too few to works were argues that Defendant Further, defendant general acceptance. support a conclusion peer for provide effective forums do not maintains lectures addition, alleges that Cellmark violated defendant review. by failing publish testing both for DNA national standards primers types results its validation studies probes that it uses. however, lectures, general support acceptance articles and polymarker Admittedly, prior test. involved cases have See,
greater
scholarship.
e.g., Kelly, supra,
bodies of accumulated
(noting
97 N.J. at
A.2d 364
were
that there
“at least five
seventy
papers
books and almost
scientific articles and
about
*47
Williams,
syndrome”);
N.J.Super.
supra,
battered-woman’s
252
382,
testifying
(noting
experts
Further, circumstances, appropriate “[u]nder speeches, addresses, may and other similar sources be used demonstrate acceptance premise by community.” Kelly, of a the scientific supra, 364; 211 N.J. at n. see A.2d also State v. Anderson, 284, 881 (1994) 118 N.M. P.2d (rejecting 42-43 claim presentations, opposed that as publications, to formal were inade review). peer quate forty-four as presenta From the lectures and tions, appears it clear that community the forensic-science has kept developments adequate abreast of opportunity and has had peer testing. for review of PM trial, moreover,
Since the of conclusion defendant’s the National Council, Research of which members are drawn from the Sciences, of Academy councils the National of the National Acade- Medicine, published my of The Engineering, and the Institute of (referred to supra DNA Evidence as NBC Evaluation Forensic of report, Technology DNA update an to their 1992 Report), PCR-systems, in- report concludes that Forensic Science. “ready Report, used.” NRC cluding polymarker, are be polymarker supra, report at 119. The further confirms respect for “validated with tests robustness with has been insults,” popu- and that “substantial information on environmental frequencies” polymarker exists for the loci. Id. at 72. We lation literature, existing combined with research shared conclude symposia, supports finding polymarker at lectures and generally accepted by the as reliable forensic science test community. Opinions
c. Judicial
hearing,
time
the Rule 104
both the State and the
At the
of
judicial opinion discussing polymark
any
were
of
defense
unaware
Pearson,
N.J.Super.
er
Wilkerson v.
evidence. See
(Ch.Div.1985) (holding
judicial opin
Since defendant’s
the
at least
other
six
polymarker testing
scientifically
courts have held that
is
reliable.
(8th
Beasley,
1440,
Cir.1996),
States v.
1448
United
102 F.3d
cert.
—
denied,
-,
(1997)
1856,
117
US.
S.Ct.
5. polymarker Defendant asserts even if the results of test admissible, dot-intensity analysis, *49 are the State’s method of inter preting scientifically sample, mixed-blood is unreliable. The rejects dot-intensity Indeed, analysis. dissent likewise the dissent goes dot-intensity rehable, analysis so far as to assert that if “the would being results obtained be inconsistent with defendant Post at A.2d at murderer.” 667.
At hearing, dot-intensity analysis presented the Rule 104 as integral part polymarker testing. an of hearing The Rule 104 testimony involved consideration of oral and written evidence on polymarker dot-intensity analysis. test and Both the defense dot-intensity analysis application and the State considered as an of test, polymarker apart polymarker not as an issue from testing. holding In polymarker testing that the results of were admissible, implicitly approved dot-intensity analy- the trial court sis, polymarker which was the use of the on test which the State relied. record, posttrial publica
Based on the as well as on judicial opinions, tions and court we conclude the trial correct ly testify experts dot-intensity analy allowed the about State’s concluding, sis. recognize so we that a court must examine step process technique. Kelly, supra, each or of a scientific Thus, independently N.J. at A.2d 364. we examine dot- intensity analysis to it determine whether has obtained sufficient acceptance justify admission its results of into evidence. Testimony Expert
a. pretrial hearing, At testimony the defense offered the of Dr. Blake, report by Shaler and a Dr. written of Forensic Science Associates, disagreed of whom with on propri both Dr. Word ety dot-intensity analysis. Dr. disputed Shaler Cellmark’s theory dot-intensity polymarker that the on imbalances test strip represented presence pairs. allele He testified that strips such color on imbalances occurred even the DNA test single-donor samples Schnaps’s control defendant’s and blood. example, intensity For Dr. Shaler to have claimed detected imba lances on defendant’s GYPA and HBGG loci on the victim’s defense, According GC locus. to the those variances the dot *50 178 Harvey’s destroyed Schnaps’s strips in control
intensities
analysis
sample
integrity
dot-intensity
of
of the mixed-blood
agrees, asserting
spring.
taken from the box
The dissent
that
degree
naturally occurring
that there are
variances
dot
“[t]o
predicted
analysis,
prior
intensities that cannot be
to the
dot-
intensity analysis disintegrates as a reliable and useful test.” Post
Shaler,
169,
According
at
Defendant also asserts that color in the imbalances strips may pairs, by test have been caused not allele but human manufacturing errors such as contamination or defects. Dr. Shal- er, trial, pretrial hearing at the and at faulted for not Cellmark repeating polymarker procedure despite possibility test of contamination, error or contamination. He further stated that defect, manufacturing improper laboratory procedures or caused the dot imbalances. previous holding polymarker scientifically
Our
test is
reliable,
IV.B.4.d.,
supra part
leads us to the conclusion that the
foregoing challenges
dot-intensity analysis regarding
to
Cell
test,
performance
polymarker
mark’s
of the
concern not the
admissibility,
Marcus,
weight
supra,
but the
of the evidence. See
N.J.Super.
(holding
interpretation
The State’s Cooper, Dr. Word and Ms. differed from Shaler, expert, the defense Dr. interpretation of the dot intensities on the control strips. vigorously ques- Defense counsel *51 experts tioned the State’s whether the differences in the dots of the victim’s and samples defendant’s blood undermined the dot- intensity analysis sample spring. from the box On cross- examination, Cooper disputed Ms. Dr. Shaler’s claim that dot- intensity imbalances existed at the HBGG and GC loci on the Schnaps’s strips. defendant’s and Cooper test Ms. stated that only place “[t]he I really any where type slight see of a difference would be at the Harvey.” Moreover, GYPA locus for Mr. neither Cooper Ms. any nor Dr. Word found evidence that Cellmark had made a in polymarker mistake the conduct of the According test. Cooper, to Ms. intensity imbalance on defendant’s GYPA locus probably was due to a present variant allele in some African Cooper Americans. explained Ms. that the difference in dot intensities at the GYPA locus was not testing due to errors in or manufacturing Indeed, to a defect. nothing in supports the record conjecture the defense’s manufacturing contamination or de- any fects caused differences in dot intensities. goes beyond
The dissent arguments. the defendant’s For ex ample, repeatedly the dissent polymarker concludes that the test kit used “designed solely State was to determine the presence alleles,” or absence of certain so that it at most can “potentially show that a mixture in exists certain circumstances.” 244, 259, Post at 699A.2d at 666. State, however, presented expert testimony at the Rule 104
hearing demonstrating that differences in intensities of the test- strip dots could sample. reveal the blood donors ato mixed-blood Dr. Word testified that Amplitype the Perkins-Elmer PM test strip designed sample single so that a from a individual would produce similar dot intensities within each locus for which the heterozygous. If donors contribut- two or more blood
individual allele, of the same ed same or one blood donor contributed two alleles, pair homozygous in a that dot would allele so as to result by an if one of that allele was contributed be more intense than further testified that Cellmark’s individual donor. Dr. Word study. study That included a mixture-dilution validation studies provided with information on the dilutions were Cellmark capable the mixtures could be of detection and showed interpreted many cases. characterization, post
Contrary dissent’s see at to the testimony expert supports of the State’s A.2d general acceptance dot-intensity analysis. conclude that We right preventing the trial court reached the decision testimony. jury hearing from DNA State’s argues that certain omissions in the The dissent nonetheless testimony parties dot-intensity analysis expert of both reveal that inability to dot- is unreliable. It maintains that the State’s use DQ intensity analysis Alpha proves analysis for that the test “DQ Alpha does not work. It further states that the marker was *52 using testing strips.” retested the PM Post at 265 n. 699 A.2d record, however, at 668 n. 14. The contains no evidence of two Likewise, DQ Alpha record contains no sets of test results. the dot-intensity analysis application discussion of the to the results trial, DQ Alpha challenge At the did not the of the test. defense Hence, any analysis. the record does not reveal absence such dot-intensity analysis DQ Alpha performed whether can be on a DQ Alpha test or whether the test for the allele differs from the DQA1 polymarker study that “[O]n test. The Roche field states probe strips, probes the are not as well balanced and the DNA signal easily intensities cannot used as to associate alleles from be major and that “it to determine the different sources” was easier DQA1 genotype probe strips on PM DNA than the DNA the probe strips the could be because the relative intensities of dots Fields, 284; compared.” supra, at see also 40 J. Forensic Sci. (PCR) Blake, al., “Polymerase Amplifi et Chain Reaction Edward Leukocyte Antigen (HLA)-DQa cation Human Oligonucleotide Typing Biological Samples: on Experience,” Evidence Casework 1992) (May DQ (reasoning J. Forensic Sci. for results, Alpha detected, necessarily test a “mixture cannot be however, if two contributors to a mixture contribute more than no equivalent two approximately alleles total and contribute (“Mixed DNA”); Report, supra, samples amounts of NRC at 130 complicated can DQA, also lead to more calculations with where subtraction.”). some alleles are inferred Finally, polymarker the dissent claims that from the results the box-spring sample prove dot-intensity HBGG marker of the 263-265, analysis not Post at does work. A.2d at 667-668. “A,B,C,” for spring marker results the box were with HBGG all in intensity. Schnaps’s type three alleles balanced at the “B,B.” analysis, According dot-intensity HBGG marker was the B appeal, allele should be more intense. Neither at trial nor on however, challenged polymarker has defendant or the results analysis dot-intensity box-spring sample HBGG Consequently, marker. the State had opportunity never has an challenge. Perhaps meet not defense counsel elected challenge findings strategic that the for reasons. HBGG locus us, unchallenged On the before record results of dot- intensity analysis justify at the HBGG marker do a reversal of relief, application post-conviction defendant’s conviction. In an for may polymarker defense counsel make such use of the results at appropriate. HBGG marker as is b. Publications hearing,
At the Rule 104 introduced State three’ articles: study, FBI Report, the Roche field and the article. Herrin supra dot-intensity See Part All IV.B.4.b. three articles discuss analysis. dot-intensity analysis Not one states is unreliable. *53 go express interpret The no articles further than caution when ing through dot-intensity analysis. the results genotypes study designed to determine the Roche field was contributor, both, major or to a or minor
of either the contributor sample, sample. example, in a mixed where For mixed-blood component minor was intensity corresponding dots to the dots, study could not equal or to the control greater than study Consequently, identify major component. minor or category. uninterpretable placed such a result study study of dot- field was not a Apparently, the Roche analysis relative amounts of DNA intensity for mixtures where the however, study, equal. The concluded for each donor were strip could be a “valuable analyzing the of dots on a PM balance analysis system for of mixtures” and directed asset of the develop policies interpretation of for the individual laboratories history samples experience on and case infor- mixed-blood “based Here, interpre- developed such mation.” Id. at 284-85. Cellmark methods. tive “flatly Report that the FBI contradicts
The dissent contends
dot-intensity analysis.”
699 A.2d
assumptions of
Post at
differently.
Report
Report
FBI
The FBI
at 676.
read the
We
rule, samples
general
with two contributors of
“[a]s
stated
displayed
types
predicted.”
Report,
FBI
types
PM
PM
as
known
added).
profile
to the
supra,
(emphasis
at 49
Each contributed
types
samples
contributors of known PM
and when the
with two
were increased com
shared alleles
common the dot intensities
FBI, in
pared to alleles that were not shared.
Ibid. Because the
donor,
study, already
types
dot-intensity
knew the PM
of each
its
Thus, contrary
analysis
necessary.
to the dissent’s asser
was not
tion,
any
Report
FBI
did not refuse to draw
conclusions from
Rather,
dot-intensity imbalances. Post at
were with the known from By comparison the victim in this case sample (HBGG AA), victim, assign it is to the A alleles to the possible and know that the B originated individual(s). and C alleles with another added).] (emphasis [Herrin et al, 39 J. Forensic Sci. at 1249-50 supra, publications Recent acceptance dot-intensity enhance the of analysis. Report The NRC states: Mixed are sometimes found in crime situations —for samples instance, blood from crime____ or two more at the scene of a In persons one of cases, many genetic contributors —for the victim —is and the example, known, profile might
unknown distinguish inferred. cases, some it be readily possible genetic the contributors to a mixture profiles in intensities of from differences typing; bands in an BFLP or dots in a dot-blot in either pattern case, the analysis is similar to the unmixed case. added).] (emphasis
[NRC at 129 Report, supra, Moreover, recently published Dr. Word has an validating article the use of the PM kit for samples. use on mixed-blood Charlotte al., “Summary J. Word et Twenty-Six Validation Studies from Forensic Laboratories in the United States and Canada on the AmpliType Use Amplification Kit,” PM PCR Typing (1997). J. Forensic Sci. 39
Our review of the relevant impression literature leaves the dot-intensity analysis topic is an esoteric of interest to a limited community. scientific community, however, Within that limited analysis sufficiently accepted has been permit jury that, recognize hear about it. below, We as occurred the trial dot-intensity analysis provides opening an for cross-examination contradictory expert testimony. however, opening, That deprive jury should not hearing testimony from about the analysis. recognize We also considering that other eases general acceptance of great- scientific innovations have involved a er number of supra scientific articles. See Part IV.B.4.b. No however, dot-intensity analysis. pre- As article, rejects
published discussed, supports acceptance of the test. viously the trend Opinions c. Judicial length, dot-intensity analysis at
Although no court has discussed Hamp- the District of New District Court for the United States *55 under Daubert premise recently accepted as reliable shire Shea, supra, In the defen- interpretive method. underlying this test should be excluded because argued polymarker that the dant person’s reliably of more than one detect mixtures PCR cannot rejected argu- F.Supp. at 339. The district court that DNA. 957 expert’s testimony that ment, government finding persuasive the identify a mixture from observable be able to “an examiner -will strengths signals indicated on the relative of differences Id. extremely circumstances.” strips, except in unusual PCR test at 340. Jersey Rule Evidence
d. New 403 argues that even if the DNA evidence Finally, the dissent methodology, generally accepted the evidence’s from a derives 270, value. Post 699 outweighs probative its prejudicial effect assumption challenges the particular, A.2d at 671. In the dissent box-spring sample and people provided to the two blood equal present suspect’s blood were the victim’s Nothing than real. argument is more theoretical amounts. The persons at suggests presence more than two in the record the crime scene. under general, evidence should be excluded whether Jersey prejudicial
New
Rule
Evidence
403
its
effect
because
probative
an issue remitted to the discretion
outweighs its
value is
Wilson,
4, 20,
v.
135 N.J.
A.2d 1237
of the trial court. State
637
(1994). Only
court commits a clear error of
when the trial
judgment
appellate court disturb the trial court’s decision.
does an
(DiFrisco
DiFrisco,
(1994)
434, 496,
L.Ed.2d 803 We find no error in the admission of the DNA evidence. The probative effect of the is that evidence the DNA test results showed that defendant could not be as a excluded contributor to box-spring sample. specifying prejudi- blood Without how the outweighs value, cial effect of the probative evidence its suggests possible dissent of inquiry avenues that defense counsel might pursued. say have Suffice it to that defense counsel made a choice, different one that involved the cross-examination of the experts concerning dot-intensity analysis State’s of the blood. perceive We no reason to disturb the trial court’s ruling admitting the DNA evidence.
- V- argument We next evaluate defendant’s the trial court right violated present his constitutional by restricting a defense *56 expert potential examination of witnesses to flaws the adminis- polymarker tration of the test.
- A- holding After polymarker admissible, that the kit was the trial precluded court challenges admissibility further at trial. The however, ruling, court’s prevent did not defendant from introduc- ing weight credibility evidence relevant to the or expert of the testimony. ruling, prohibited accordance with that the trial court defen- (1)
dant from attempting jury before the to cross-examine the (2) experts State’s on Cellmark’s validation studies and elicit testimony from Dr. Shaler that FBI polymark- the did not use the test samples. er on mixed-blood Defendant claims the trial court committed reversible error it when barred him from cross- argument, it To the defense’s
examining on these issues. evaluate expert-witness testimony. scope the necessary to the review - -B expert, Cooper, explained the results first Ms. DNA State’s DQ Polymarker conducted on crime scene Alpha tests Cooper from Ms. samples samples and blood taken defendant. lab, the test its explained employing also that before PM study. a validation Cellmark conducted dot-intensity Cooper on the The defense cross-examined Ms. sought PM counsel in defendant’s test. Defense imbalances test the had not conducted the PM under elicit that Cellmark prescribed procedures. follow proper conditions and had failed to im- dot result from Cooper Ms. conceded that imbalances could hybridization temperatures, improper salt-solution proper or wash concentrations, stringent dis- improperly-timed or washes. She appeared puted dot on defendant’s that discernible imbalances explained could GC loci and that variations occur HBGG and positive the GYPA locus. control conducted with Because normal, investigate possible did for appeared test she causes questioned Ms. on Cooper also imbalances. Defense counsel lifting cycler during possibility the lid of the thermal accuracy process, she have amplification could affected the tests. work, Cooper’s all
Dr. testified that she reviewed of Ms. Word Cooper’s At agreed point all of results. one and that she with Ms. examination, about during prosecutor inquired a list direct prosecutor presentations on PM test. that the Concerned test, the court trying reliability to bolster the of the PM trial precluded inquiry. cross-examination, pressed Dr. on the dot
On defendant Word possibility that Cellmark had not followed imbalances on the *57 acknowledged testing procedures. Dr. that Cell- correct Word many to people mark contributed the mixed- did know how spring. sample from blood recovered the box redirect, Dr. performed On Word testified that Cellmark had with prosecutor validation studies the PM test. tried When inquire into the nature and conclusions Cellmark’s validation study, objected successfully. defense counsel Shaler,
According expert, defense Dr. Cellmark’s PM test results were flawed and of interpreting Cellmark’s method the test “scientifically emphasized Dr. pres- indefensible.” Shaler jury ence of dot imbalances to the and faulted Cellmark’s techni- doing cians for not possibility the tests twice. He also raised the that test strips Cellmark’s were defective.
Dr. Shaler further testified that he did not believe dot- intensity stating interpretation, “philosophical that had a he differ- experts. Accordingly, disputed ence” with State’s he Cell- mark’s that the box-spring thesis defendant could be linked to the requested stain. Defense counsel a side-bar conference because ask he wanted to Dr. about Shaler Cellmark’s validation work. The court it responded inappropriate inquiry deemed inquiry about validation because the was directed at the admissi- bility, weight, not the of the evidence.
Later, redirect, on Dr. his associating Shaler restated view that alleles was analyzing an unscientific method of a mixed-blood sample. presented Defense counsel then Dr. Shaler with an asserting that dot-intensity analy- article the FBI did not use objected. side-bar, technique. The sis State At defense counsel explained that he did not believe that the article went to admissi- bility, weight testimony but rather to the of Dr. Shaler’s associating interpretive technique. alleles was not valid The prosecutor responded admissibility that the article went to already that Dr. had Shaler testified his belief other dot-intensity analysis. scientists did not believe in The trial court objection. sustained the State’s
- -C Sixth Amendment to the United States Constitu paragraph Jersey tion Article 10 of New Constitution *58 188 right The to confront witnesses.
guarantee a criminal defendant’s
right.
State
right to
an essential element of
cross-examine is
(1991).
519, 530-31,
Budis,
A criminal
Without merit is defendant’s trial court rights refusing violated confrontation to allow him to cross- his examine validation studies. Defense counsel never Cellmark’s attempted on experts to cross-examine the State’s that matter. objected contrary, the prosecutor To defense counsel when attempted testimony from Dr. on Cellmark’s vali to elicit Word it dation therefore when states that trials. dissent misleads permit the trial did not defendant to examine the court scientific experts Post at 699 A.2d at on Cellmark’s validation studies. 674. precluded properly
The trial court defendant from elicit through expert ing testimony own about Cellmark’s validation his poly- studies. The issue of validation studies on the Cellmark’s reliability polymarker. properly marker concerns the more such, goes As the issue to the admissibility the test not its weight. compromise
We are convinced the trial court did not defen- rights. reveals, dant’s confrontation As the record defense coun- sel experts cross-examined the State’s on their methodologies and *59 on the results from the PM tests. Report
2. FBI The trial court should have allowed defendant to elicit testimony from indicating Dr. Shaler about an article that FBI the dot-intensity did use the technique. association-of-alleles or error, however, The was R. harmless. 2:10-2. previously explained, supra IV.B.5.,
As part of some defendant’s regarding dot-intensity criticisms the technique bore on the weight, admissibility Thus, not the of the DNA evidence. permitted court should have testimony defendant to elicit about article, only which weight went to the of the State’s evidence it that could identity determine defendant’s from the mixed-blood sample Schnaps’s taken from box spring. error, however, clearly capable producing was not unjust
an R. result. 2:10-2. Dr. Shaler prove tried to that dot- intensity analysis was unscientific. He also testified that other agreed. forensic Through testimony, jury scientists his knew questioned validity analy that some scientists of dot-intensity sis.
Knowledge position only the FBI’s would have added limited weight argument. previously discussed, supra defendant’s As IV.B.5., part not, states, FBI article did as the dissent dot-intensity analysis. 256-258, 280, contradict Post at 699 A.2d 664-665, Rather, 676. Report the FBI urged caution when inter evidentiary preting samples potentially may be from more Report, supra, than one donor. FBI 52. The article also states, however, sharing that mixtures of donors the same alleles intensity. resulted in an increased dot 49. Id. at
- -VI computed improperly argues that Cellmark Defendant next one-in-1,400 prosecution’s evi- with the DNA number associated improperly alleges that Specifically, defendant Cellmark dence. jury computation; inform the product-rule failed to its calculated calculations; associated with such statistical margin of the error that the contributor to mixed-blood improperly assumed echoing In addition to sample an African American. necessity criticisms, urges the of an inde- the dissent defendant’s evidence. hearing the admission of the statistical We pendent for find, however, admitting not err in statistic that the trial court did as tending not be excluded to show defendant could evidence found at the crime scene. a contributor the blood
- A- Harvey’s genotype for all Cellmark concluded DQ Alpha genes the PM and tests was six studied in both one-in-1,400 reaching African Americans. common to *60 conclusion, genetic frequen consulted databases of Cellmark together multiplied figures and genotype cies each those for product with rule. accordance population-frequency de-
Cellmark used two databases. One Americans, study fifty some rived Cellmark’s own of African from “paternity employees, and from work” of whom were Cellmark to a samples blood at the lab. Cellmark also referred done by sample from a of 100 African compiled Roche derived database challenge adequacy not of Cell- Americans. Defendant does Indeed, Dr. used the same databases mark’s databases. Shaler his calculations. above,
As DNA revealed the follow- mentioned defendant’s tests ing results: = Genotype BB 56% of African Americans of African Americans
LDLR: = = AB Genotype GYPA: 50% 27% of African Americans Genotype AC Genotype AB HBGG: = of African Americans 45% D7S8: = Genotype AB of GC: African 17% Americans = DQ Alpha: 4,4 Genotype of 11.9% African Americans According prosecution’s to the experts, with fore- someone genetic going make-up could not be excluded as donor to the sample mixed-blood from spring. recovered the victim’s box percentage To determine the of African-American individuals who genotype genes, would share defendant’s for all six Cellmark multiplied genotype frequencies another in one accordance with product part supra rule. See Application IV.A.3.b. product genotype rule indicated that genes defendant’s for all six one-in-1,400 approximately was common to African Americans. appeal, alleges one-in-1,400 On fig- defendant that Cellmark’s ure was incorrect because it did not include percentage African Americans who could have matched the mixed-blood sam- ple. argues alleged Defendant that this error arose because the DQ Alpha percentage product-rule used in Cellmark’s calculation 283-285, wrong. was agrees. The dissent at Post 699 A.2d 678-679. DQ Alpha sample test conducted on box-spring revealed presence the 2 possible alleles. It not was DQ Alpha
associate parties agree alleles with the test. The DQ Alpha possible genotypes test all the revealed that could 2,2; presence have combined reveal of the 2 and alleles: 2,4; 4,4. DQ 4,4, Alpha genotype Because defendant’s he potential people could be excluded as a donor if had two box-spring contributed to the stain. argues population
Defendant frequencies that the for each (2,2; 2,4; genotypes 4,4) these three should been have added DQ together inserting Alpha product- before statistic into the defendant, According rule calculation. individuals who share *61 polymarker defendant’s genotypes DQ Alpha five and who a have 2,2; 4,4 genotype 2,4; just 4,4 of either or be —not —could mixed-blood, excluded from box-spring sample. the 192 population population revealed the for the entire
Evidence genotypes: possible 9% frequencies for two of these three alleles, the 4 and 17% had and population the had the and basis, at 26% the argues that least defendant alleles. On (17% 9%) DQ Alpha genotype that + had a would population Therefore, alleg- box-spring sample. to defendant correspond the DQ Alpha 26% have used a value of es that Cellmark should account) 11.9%, (adjusted taking into to race rather than 17% Defendant con- product-rule it conducted the calculation. when yields a substituting DQ Alpha value result of tends that the 26% Thus, posits that one-in-666 .0015 one-in-666. defendant or genetic material consistent -with could have contributed individuals sum, box-spring sample. defendant con- in the detected unfairly prejudiced by stating him that one- cludes that the State Americans, in-1400, African could have instead of one-in-666 provided sample. the present figure prove prosecution did not one-in-1400 genetic compositions percentage Americans whose of African PM/DQ profile of comparable Alpha the box-
could be with states, sample. prosecution, as spring Nor did the the dissent from the scene revealed the that the blood recovered “assert[] Rather, ‘4,4’DQ-Alpha genotype.” A.2d at 678. Post DNA prosecution used the evidence demonstrate could not be excluded as donor the mixed-blood defendant sample his com and that one-in-1400 African Americans shared posite genotype. case, Cooper
On the State’s Ms. testified: using four, if based Now, rule, four, Prosecutor: use you upon your product percentage do and did as indicated with a what you calculation you polymarker, with? come up having have For African-Americans we indicated types polymarker Cooper: having four is four, an individual number DQ Alpha approximately type, in1 1400 in African-Americans. can thousand three Prosecutor: Let’s mark this down bottom. You excuse one having characteristics, African-Americans from these hundred ninety-nine that correct? *62 just Again, giving these numbers are an idea how rare or Cooper: you common, given how these different occur in a And if have a types random population. you of the chances 1 of are at least those population approximately people, people would have those polymarker DQ particular Alpha type. described, So the one-in-1400 evidence was relevant to show that relatively composite genotype defendant’s rare could not be ex- PM/DQ Alpha cluded as a to tests contributor the box- cross-examination, spring sample. moreover, On Cooper Ms. tes- DQ 4,4, tified specific Alpha that defendant’s of marker which percent occurred in population, seventeen constituted mil- people. lions of addition,
In Cooper Ms. about testified statistics that did not DQ Harvey’s Alpha include multiplying results. She stated that frequency Harvey’s calculations of of each PM loci showed approximately African one-in-170 Americans shared Har- LDLR, GYPA, vey’s HBGG, D7S8, genotype at the and GC loci. argues prosecution Defendant now pre- that the should have sented a ratio of the polymarker genotypes individuals whose DQ would match Alpha genotype defendant’s and whose was 2,2; 2,4; 4,4. ratio, defendant, either or according That to approximately testimony one-in-666. no Defense counsel adduced support at proceeding of that ratio trial. It is too late in the for defendant to that the presented insist State should have statistical evidence that helpful defendant now believes would have been trial. addition, court, pursuant we note that the trial to defense request, jury
counsel’s instructed the that statistical evidence does jury obligation relieve the of its to determine ultimate question guilt. Specifically, trial court stated: Now, heard from DNA from you both the State and the testimony experts, percentages. Defense. Some of the in terms testimony you expressed again,
You must determine whether the has each State, element proven every charges [sic] of the these a reasonable and no couched in beyond doubt, testimony percentages obligation terms of or can relieve probabilities make you your that determination. trial, At genetics- derived State its statistical evidence from population databases submitted the trial court at Rule 104 compiled the databases were
hearing. Dr. testified Word and a' fifty African Americans study of own from Cellmark’s Systems, was derived which by Roche Molecular created database She further African Americans. study of 100 a Roche from “essentially databases were polymarker explained that Cellmark’s *63 laboratories prominent forensic those used other the same” as to the use of the country. Dr. also testified Word around six- composite frequency for defendant’s to derive a product rule genotype. loci Shaler, expert, Dr. did hearing, the defense’s Rule 104
At the
Instead, he
accuracy
databases.
of Cellmark’s
not contest
Although the
calculations.
in
statistical
on them his own
relied
databases,
that the
it contends
not criticize the
defense still does
enough
an
large
to be
databases were
population
State’s
291,
at 682.
Post at
699 A.2d
sampling
population.
accurate
addition,
sought to introduce evidence
never
In
the defense
the mathematical soundness
general acceptance or
disputing the
appeal, the defense does not
Even on this
product
of the
rule.
Indeed, the defense states
challenge
product
of the
rule.
the use
absolutely valid.”
product rule is
“everyone agrees that the
that
however,
dissent,
the trial court erred
maintains
reliability of the
admissibility hearing on the
failing to hold an
293,
particular,
In
On this First, used that statistical databases publications reveal suasive. loci are often con DQ Alpha for and PM by other laboratories See, Kwang Man e.g., groups of blood donors. structed with small Budowle, Population Data on the PCR- Bruce “Korean &Woo HBGG, D758, Gc, HLA-DQA1 LDLR, GYPA, Based Loci (1995) (obtaining from 116 D1S80,” blood 40 Forensic Sci. 645 J.
195 individuals); Hayes Maya unrelated Korean Jeanne M. et al. & Freund, Population “Arab Data on the loci: HLA PCR-Based LDLR, GYPA, HBGG, D758, DQA1, D1S80,” Gc and 40 J. Foren (1995) (collecting ninety-four samples sic Sci. 888 blood from Arabs); 312, Pope, supra, unrelated see also 220 Ill.Dec. at (finding N.E.2d at 1324 polymarker “[b]ecause the PCR systems allele, may rely are two allele or FBI three on Thus, smaller database. the PCR Caucasian database contains individuals”). only 145
Second, underlying the trial court found that the databas light finding, questions regarding es were reliable. of that evidence, go weight size of a database to the not its Adams, admissibility. People Mich.App. See v. (1992) that, (holding expert testimony
N.W.2d
in face of
valid, questions concerning
that database was
size of database and
weight,
statistical conclusions drawn from it went to
not admissi
evidence),
bility,
part
grounds,
on other
441 Mich.
modified
(1993);
Copeland,
Dr. Shaler used
Furthermore,
testified that
figures.
he
compute his statistical
Report,
also FBI
inherited.” See
“independently
loci were
those
(“The
for the
genotype frequencies
of the
distribution
supra, at 53
[Hardy-
(as
HLA-DQa) meet HWE
as
PM loci
well
various
for association
is little evidence
Weinberg expectations], and there
D1S80)
(for
loci, HLA-DQa, and
for
loci
the PM
alleles across
American, Caucasian,
Hispanic, and
southeastern
African
our
The data demon
Hispanic population databases.
southwestern
frequency can
multiple
profile
of a
locus
that valid estimates
strate
using
product
rule
.identity testing purposes
for
be derived
independence.”).
assumption
under
prod
previously considered whether
Although
have not
we
admissible,
acceptance so as to be
general
uct rule has sufficient
accepted DNA
Appellate Division
decisions
two recent
Mar
using
product rule. See
calculated
evidence
statistical
cus,
(finding
221
that “it is
N.J.Super. at
683 A.2d
supra, 294
hearing that the use
Frye
of the
than at the time
even clearer now
generally accepted in the
analysis is
product rule in DNA
284-85,
Dishon, supra,
N.J.Super.
at
community”);
scientific
product rule to calculate
(holding that use of
A.2d 1074
populations is
and Black
frequency of occurrence
Caucasian
concerning ethnic substructures
scientifically
and that debate
valid
evidence).
admissibility, of
addi
weight, rather than
went to
tion,
product rule as scienti
jurisdictions accept the
many other
Fishback,
See,
at 893-94
e.g.,
supra, 851 P.2d
fically reliable.
by applying product rule were
done
(holding that calculations
community); Clark v.
accepted in
scientific
generally
relevant
“product
State,
(reasoning that
(Fla.App.1996)
679 So.2d
fact and
appropriate as a matter of scientific
calculations are
rule
315-16,
N.E.2d at 1327-28
law”);
Pope, supra, 220 Ill.Dec.
accepted in scienti
generally
(holding
product
that use of
rule was
*65
604,
Chandler,
Mich.App.
536
211
community); People v.
fic
(1995)
799,
(holding
“product rule method of
N.W.2d
803
accepted in the relevant
generally
is now
DNA statistical evidence
Kinder,
313, 317
community”);
v.
942 S.W.2d
State
scientific
(Mo.1996) (finding
product
generally accepted in
rule was
(conclud
community); Copeland, supra,
scientific
The dissent cites out-of-state decisions
about
population substructuring
parties
and the failure of the
to use the
287-291,
“ceiling principle.”
(citing,
Post at
Science 10-12 structuring: of rule on the of absence of The the validity multiplication depends assumption of substructure. substructure violates the statis- Population assumption population groups with of alleles. In a that contains each tical independence population genotype in a can different allele the of one allele frequencies, presence person’s genotype. For alter the statistical of the other alleles in the example, expectation among has one allele that is common Italians is more be of who likely person additional alleles that are common Italian descent and is thus more likely cany genotype higher among than The true is thus would be Italians. frequency applying using average the rule the by multiplication [product] frequency predicted underlying of
in the entire the use the population____The key question multiplica- significant for the loci tion whether actual have substructure i.e., populations rule— among typing debate used for forensic considerable population provoked —has signifi- geneticists. concern about the Some have serious possibility expressed cant substructure. substructuring, report To for the 1992 recommended the account celling principle frequency to calculate statistics. The use of the ceiling principle degree popula assumes the existence of some generates population tion more conservative substructure Marcus, product supra, 294 frequency statistics than the rule. however, N.J.Super. report, 221. In its 1996 688 A.2d ceiling principle “concluded that use of the overstates the NRC calculating population population effect of substructure matching frequencies print patterns of a combination of DNA Ibid.; unnecessary.” consequently purposes its use for forensic Report, supra, NRC at 35. community generally conclude that the scientific
We party accepts product rule. Whether a uses a “factor-of-ten” recommends, adjustment “ceiling principle,” or or as the NRC adjustment subject may legitimate no be a of scientific debate. Indeed, FBI, NRC, specific unlike the does not recommend adjustment Report, supra, FBI product to the rule. at 50-52. however, acceptance, require consen General does not scientific agree Appellate reasoning in Marcus: sus. We with the Division’s jury] [ ] [to State evidence calculat- may present population frequencies ceiling use of or rule, ed other method that has a any product principle, legitimate conflicting scientific basis. The defendant remains free to present regarding calculations. A opinion testimony expert population frequency point agreement among be reached where there is such ultimately may widespread regarding calculating in the field method of experts proper population frequen- *67 generated methodology cies that statistics should be to the presented jury. However, until such a scientific consensus is this remains a established, subject legitimate for at trial. expert testimony [Marcus, 221.] 294 at 683 A.2d 288, supra, N.J.Super.
Thus, regarding the dissent’s concerns the use of the “unmodi- product weight, admissibility. fied” rule concern its not its See Shea, supra, F.Supp. (finding adjustments at 957 343 that whether product suggested Report sufficiently to in rule 1996 NRC were weight, admissibility). Notably, conservative was issue of rule, challenge product defense did not the unmodified but rather analysis. used it in its statistical own Moreover, application polymarker of the “factor-of-ten” to the necessarily help results does not defendant’s dissent case. The that, many claims based on the number as State’s one-in-170 “as people may one seventeen share the DNA characteristics of the blood found at the scene.” Post at at A.2d 680. The “factor-of-ten,” however, limit in is confidence both directions. Thus, number, using many the one-in-170 as as one-in-1700 people may hundred also share the DNA characteristics of the blood found at the scene.
As one court has stated: There are doubtless formulas and which use ... to arrive many principles experts their ultimate The determination of which or factors, formulas, opinions. singly conjunction calculations are either or in with each to form other, necessary, knowledge judgment again an is within the and, expert opinion expert, subject which can be examined the cross-examination or by approached bringing forward other witnesses. expert (Ind.1993), [Jenkins v. State, denied, 627 N.E.2d cert. 513 U.S. (1994).] 130 L.Ed.2d21
S.Ct. ample opportunity present jury Defendant had at trial to fact, interpretation with a statistical of the DNA test results. that, explained associating Dr. Shaler his belief without alleles and taking possible box-spring into account all donors to the second people have contributed a
sample, approximately one-in-100 could figure than composite genotype, a more favorable non-excludable propounds. figure that defendant now Defendant the one-in-666 evidence, challenge the statistical to opportunity had the State’s evidence, argue jury. conclude present his own and to We jury judge permitting err in to evaluate that the trial did not the State’s statistical evidence. reading attributes
Our of the record reveals dissent greater significance evidence than the evidence to the statistical at trial. did not belabor the statistical received The summations summation, argued: evidence. On defense counsel percentage that out as a result of this I believe is one out test, came eventually of 400 and there was another one out of 170. number, jury part, its invited the to deliberate based on For State calculation, if it Dr. Shaler’s one-in-100 found calculation be more credible: figures that in a have,
Prosecutor: Remember we one hundred and seventy, *68 one in fourteen hundred. suggest If Evaluate them. want to use I should use the one them, you you figure given fourteen or if use the Dr. one in a hundred, choose, Shaler, you hundred. Exclude ninety-nine percent. Further, jury the trial court instructed the that it was not bound by any expert opinion, assign weight it could it whatever evidence, appropriate expert testimony deemed to the and that percentages probabilities couched in terms of or could not reheve proof. weight of its burden of The court left the of the State jury. belatedly statistical evidence to the That defendant has thought present of an alternative manner which to statistical concerning DQ Alpha evidence results does not constitute reversible error.
- -B objection Likewise without merit is defendant’s to the through experts of the statistical evidence who admission State’s indicated, previously were not statisticians. As defendant’s own Shaler, databases or expert, Dr. did not take issue with Cellmark’s its mathematical formula.
Moreover,
testify as an
competency of a witness to
trial
the sound discretion of the
expert is an issue remitted to
of that
Absent a clear abuse
supra
court.
Part
IV.B.1.
See
discretion,
not interfere with the exercise
appellate
an
court will
Inc.,
Motors,
Henningsen v.
32 N.J.
that discretion.
Bloomfield
(1960).
say
cannot
that the trial court’s
- -C objection defendant’s to the admis Also without merit is it on the basis that was statistical evidence sion of State’s telling jury “confidence intervals” or introduced without analysis. support “margins of error” associated with statistical to its brief a letter from argument, the defense attaches of that Emory Feingold, professor at Univer Dr. Eleanor a biostatistieal data used to sity. Feingold’s letter asserts that the Cellmark Dr. polymarker test inclusion on the calculate defendant’s number for one-in-297, at a 95% range one-in-122 and has a of between confidence level. 2:5-4(a), argues that the letter from the State
Pursuant to Rule concerning confidence Feingold appendix in defendant’s Professor along from the record with should be stricken intervals relying The State brief on the letter. portions of defendant’s appeal. on material is outside the record contends such trial to confidence that Dr. alluded at defense counters Shaler simply an Feingold’s letter is “illustration and that Dr. intervals *69 understanding of fair importance confidence intervals to a of statistical evidence.” appellate An grant the motion to strike.
We
State’s
errors,
to the
court,
generally
itself
reviewing trial
confines
when
County
Paramus,
Bergen Borough
record. See
v.
79 N.J.
(1979) (holding
309-10 n.
399 A.2d
appellant’s
appendix, which contained numerous documents not offered into
evidence, clearly
2:5-4);
violated R.
Ambassador
Ins. Co. v.
Montes,
477, 481-82,
(1978)
76 N.J.
(reasoning
Moreover, letter, even if we to accept Feingold’s were Dr. it concerning would not alter our conclusions the statistical evidence. previously, level, As stated proper the issue of the confidence if any, weight, is one of admissibility. supra See Part VI.A. ample opportunity Defendant had present such evidence at trial.
- -D challenges Defendant the results of Cellmark’s DNA tests because the tests assume the sample source of the mixed-blood was an African American. Defendant states that Cellmark’s assumption contrary was unwarranted and presumption to the argues innocence. He that his genotype gene for the D7S8 is less (45%) (50%). common in African Americans than Caucasians premise, From that analyzing he concludes samples the blood assumption on the suspect that the was black made the inclusion appear ratio incriminating. more allegation is without merit. The expressed statistics were
in terms of population the African-American because defendant *70 Significantly, was African-American. considerable other evidence perpetrator Sehnaps indicated that the Afri- murder was An can-American. African-American hair was recovered at the typing presence scene. Non-DNA blood revealed the of the CA enzyme, II present only which is in African Americans. We justifies premise conclude that that perpe- evidence that the Legitimate trator was an African American. reasons existed for expressing percentage figures in terms of the African-Ameri- sum, population. can the DNA tests were not tainted racism. -
-VII argument next consider defendant’s We the trial failing grant prosecution court erred in a mistrial when a suspect passed witness polygraph testified another had a examination.
- A- Early investigation, police Stohwasser, in the considered Peter neighbor Sehnaps, possible suspect. as a Defendant contended police investigate at trial that the thoroughly failed Stohwasser prematurely suspect. dismissed him as a end, Philip Beesley, To that defense counsel cross-examined Jersey forensic Beesley scientist for the New State Police. ac- knowledged during suspect, the time when Stohwasser was a Beesley any comparison did not conduct studies on Stoh- wasser’s blood that he later ran on defendant’s blood. Nor did Beesley any samples receive blood from Stohwasser.
Following Beesley’s testimony, Investigator explained O’Brien why police suspect. had dismissed as a Pursuant Stohwasser warrant, police apartment to a search searched Stohwasser’s analysis. Investigating police seized various items for bloodstain eventually however, suspect, eliminated Stohwasser as a for nu- First, merous reasons. the blood stains on the seized items did Second, type not match the blood of the victim. Stohwasser did possess any not print footwear that matched the sneaker left at Finally, the crime scene. is Caucasian and could Stohwasser “Negroid have been the source hair” found at the crime *71 scene. redirect,
On the State elicited from O’Brien that Stohwasser had passed polygraph taken and point, a test. At that defense counsel objected. objection The trial court sustained the and informed the jury “disregard question to the last and the last answer.” following day,
The the defense moved for a mistrial on the basis polygraph of the unsuccessfully reference. The defense argued that mention of polygraph an police raised inference that the had not eliminated suspect defendant as a because either he refused to take a lie detector test or he took the test and failed. charge
At the polygraph re-emerged. conference the issue The reprimanded trial court proposed jury the State and a corrective instruction: I thinking Now, instruction on prepared own, about this proposed my issue, jury polygraph
which I will tell the that a eventually examination is not admissible legitimate investigatory in it evidence. While be a and I may tool, would have told jury thought [sic] or suggest instruction I my that proposed was to simply designed bring that the was not to out the truth of the question but result, simply to show eliminated him as a why police suspect. jury I would instruction will tell the my are to no proposed draw they also — against adverse inference Mr. [sic] because when the Stonehauser Harvey, request Mr. was in made, not That was Harvey custody. my proposal. You want me not to raise it because of concern of I your possible impact, won’t do it. certainly saying All I am feeling is that view of notes on this issue and my my of the my case, so to I am [sic] satisfied tht speak, and answer are question simply something producing prejudice not to the defendant capable any whatsoever. Defendant declined the instruction.
-
-B
argues
Defendant now
polygraph
reference to the
suspect
results of an earlier
should have
resulted
a mistrial
right
Fifth
to silence and
it violated his
Amendment
because
jury.
eyes
him in the
prejudiced
deny a
grant
or
mistrial is entrusted
decision
DiRienzo,
court, State
58 N.J.
discretion of the trial
v.
the sound
360, 383,
(1969),
grant
only to
A.2d 99
should
a mistrial
which
justice.
Rechtschaffer, 70
prevent an obvious failure of
State v.
(1976).
395, 406,
appellate
An
court should
A.2d 362
N.J.
court,
position
which in the best
defer to the decision of the trial
prejudicial
State v.
gauge
allegedly
the effect of
evidence.
(1984).
Winter,
Thus,
appellate
an
96 N.J.
to the test of another to constitute (9th Candoli, 870 505 See United v. F.2d error. States Cir.1989) (finding references that district court’s refusal to strike it not polygraph prejudicial did to examination was because Hall, verdict); materially v. F.2d affect United States Cir.1986) (10th two (testimony that had failed defendant more explain police’s failure to conduct polygraphs submitted to Moss, investigation). v. complete But see State 180 W.Va. (1988) testimony of that State (holding that admission 376 S.E.2d against he suc suspect indictment earlier because had dismissed cessfully prosecutor passed polygraph was reversible error when summation). direct in repeatedly polygraph referred to on record, suspect’s poly- to an unindicted On this the reference reference graph does reversible error. The results not constitute response on of the to attack the conduct came defendant’s Further, the immediate- police’s investigation. murder trial court jury to objection and the ly the defendant’s instructed sustained State, disregard polygraph to the results. reference moreover, presented substantial explaining why evidence it elimi- nated suspect. Any prejudice Stohwasser as a to defendant was minimal. -
-VIII argues Defendant the trial court committed reversible by inadequately error protecting jury prejudicial from pre- and midtrial publicity. Specifically, alleges defendant (1) trial court in refusing: erred to dismiss pool the entire qualified jurors (2) being as pretrial publicity; tainted to question individually jurors regarding exposure press their to (3) coverage trial; question jurors on they whether had exposed publicity been contemporaneous murder trial of Johnson; (4) State v. sequester jury during penalty-phase deliberations.
- A- phase jury The first selection lasted February from 2 to March potential juror 1994. Each filled out an eleven-page questionnaire. specific On pretrial publicity, issue of questionnaire contained questions: five relevant you 37. Have heard anything seen on television or anything on the radio about this case?
_Yes _No. you 38. anything Have read about this case in _Yes _No. newspaper? 39. has judge Other than you what the today, said to anyone you else talked to about this case? _Yes _No. you 40. Have anybody heard discussing this case people it, or the involved today either here or at *73 _Yes _No. anytime previously? you 41. Do anything know about this case other you than what have in today? heard court —Yes _No. individually concerning juror questioned each The trial court defense and the also afforded both the The court their answers. juror jurors. one question the Not opportunities to prosecution coverage. press exposure prejudicial was excused because handling publicity object court’s of the to the Defendant did phase, February-March 1994 selection issue. At the close defendant, qualified trial court objection from and without jurors. forty-seven prosecu- to examine the adjournment
An to enable defendant jury-selection delayed resumption of the tion’s DNA evidence 18,1994. court Using process, same process until October juror excused on the jurors. Again, no qualified six more publicity. exposure basis 1994, during jurors selected who had been October
On court The trial February-March phase returned to court. interim, anything whether, they about during the had heard asked impair their proposed evidence would parties or the either juror Only prospective indicated ability impartially. one to serve that he had the ease. He told the court had read about that he previously and that defendant that this case was a retrial learned juror The trial court excused to death. had been sentenced 28, at time the jurors October which other to return and told the jury pool. remaining dire with the court resumed voir 25, 1994, court of the counsel notified the defense On October newspaper articles that recently published of three existence defendant’s case. The articles mentioned defendant’s discussed previously-imposed death sentence. suppressed confession and the jurors inquired potential request, the court At defendant’s through knowledge From of the articles. October about their court, no specific questions from the response in October subject articles. had read the juror that he or she revealed February-March and on jurors selected about the Concerned courtroom present who had not been October 18 requested on October 28 that defense counsel since October *74 similarly question jurors individually. the court those The court Instead, request. questioned previously- denied the the court jurors group questioned individually selected as a and those jurors they newspaper who indicated were familiar with the addition, gave option articles. In the court defense counsel the of requesting peremptory challenges. additional jurors forty-seven previously qualified brought
When the were courtroom, any into the the court asked whether of them had “read, heard, overheard, anything or been told about this matter jurors whatsoever?” Twelve raised their hands. Of these twelve jurors, case, two had overheard discussions of the two had heard broadcasts, having radio seven admitted read about the case jurors newspaper. of the One who raised her hand had not heard about the but wanted case to inform court that she Ultimately, jurors knew sheriffs officer. all of twelve those were excused. light jurors of of they the number who had indicated that had exposed pretrial publicity,
been to defendant moved either to pool remaining, previously-qualified dismiss the entire of the jurors jurors. questioning or for individual of Defendant that, argued jurors’ denials, despite the a substantial likelihood remaining jurors exposed existed that the had to been the circulat- ing articles and broadcasts. motions, explaining
The trial court denied both ques- that the tioning effectively jurors. had identified potential tainted remaining jurors court importance reminded the avoiding coverage ongoing news obligation report exposure and of their to any coverage. qualified jurors such It then instructed 29, 1994, return on November for the commencement of the trial. replace jurors To excused on October the court contin- jury 2, 3, 4, 7, 9, 10, ued selection on November 1994. sessions, During individually questioned those the court each potential juror familiarity about his or her with defendant’s case. jurors potential any exposure None of the pretrial revealed publicity. By jury 15, 1994, the close of selection on November fifty jurors qualified. had been trial, 29,1994, morning day
On the the first November sequester jury defendant moved to or to strike the entire *75 panel and to process start the selection in- anew. Defendant morning formed the court that Ledger, editions of the Star Tribune, News and Home News carried articles on the court’s rulings. DNA Two of the sup- articles mentioned defendant’s pressed confession. The court denied the defendant’s motions for sequestration jury, agreed and to strike the but to ask all of the qualified jurors any anything whether of them had read about the ease. inquiry panel qualified jurors
The court’s to the of revealed that exposed press coverage. two had been to The court excused both jurors. panel Defendant renewed his motion to strike the sequester jury. Again, the new the court denied the motions. jury pool qualified
The was then from selected of venire persons. only eighteen twenty peremptory Defendant used of his challenges, mooting thus the court’s earlier offer to consider requests challenges. defense day for additional At the end 29, jury exposure on November the court instructed the to avoid any press coverage. to 1, 1994, trial, day
On December brought the third defendant to newspapers published the attention of the court that three had days later, juror new articles about the case. Five a informed the discussing court that he had heard coworker the case and that had he discovered that two of his eoworkers to were related juror. Thereafter, defendant. The court excused the the court sequestration. denied defendant’s motion for 13, 1994, Following defendant’s conviction on December began 15,1994. penalty phase court on December On Decem- 14, again sequestration ber defendant moved for of con- because tinuing publicity. The court denied that motion and defendant’s
request again question individually jurors that the court on exposure press coverage. their to the beginning day penalty At the phase, the second complained damaging defendant about three more articles in the morning newspapers. request court The declined defense jurors individually response interview about the articles. questions posed panel, juror to the entire no indicated that he or exposed press coverage. she had been
-
-B
The Sixth and Fourteenth Amendments to the United
I, paragraph
Jersey
States Constitution and Article
10 of the New
guarantee
right
impartial
Constitution
to a fair trial
an
Dowd,
jury.
717, 722,
1639, 1642,
Irvin v.
366 U.S.
81 S.Ct.
(1961);
I,
supra,
L.Ed.2d
Koedatich
The means for
in the face of
pretrial publicity
Yount,
interrogation
jury.
is
of the
Patton v.
1025, 1038-39,
2885, 2892-93,
467
847,
U.S.
104 S.Ct.
81 L.Ed.2d
(1984);
Jackson,
148,
(1964),
858
State v.
43 N.J.
211
prejudicial publicity, especially
to sensational
exposure
where such
repeated
is
patently
and involves
inadmissible evidence.”
I,
68-69,
supra,
capital
Williams
dure is
the trial court’s
there still existed
prejudice resulting
a “realistic likelihood
pretrial publici
from
I,
ty.”
supra,
Williams
We conclude that the trial court did not err qualified jury pool. strike the potential The court examined all jurors through questionnaires questioning. spe- and individual It
cifleally questioned jurors learning newspa- on of the October 25 per questioned collectively previously-qualified articles jurors. jurors prejudicial expo- The court excused who revealed Furthermore, press reports. sure to the court informed the jurors ongoing duty newspaper of their to avoid contact with articles and that a broadcasts. We conclude substantial likelihood coverage prejudiced remaining did not exist that media had jurors.
- -C reject argument alsoWe defendant’s that the trial court interrogating previously- committed reversible error qualified jurors publication newspaper after of each new series of circumstances, considering totality articles. After effectively jurors duty trial court informed the of their to remain impartial jurors panel. and removed tainted from the The collec questioning jurors. tive elicited admissions of taint from twelve balance, adequately responded On we conclude that the trial court problems posed by press coverage of the trial.
- - D alleges by failing Defendant also that the trial court erred specifically inquire jurors County about another Middlesex Johnson, prosecution, subject murder v. State which was also the press coverage during trial. defendant’s The Johnson case superficial bore similarities to defendant’s case it also murdering involved an African-American male accused of a white newspapers widely reported woman. Local Johnson’s statement they that “blacks should kill reproduce.” white women so can’t response case, to defendant’s concerns about the Johnson jury trial court penalty-phase collectively asked the it whether had reports “anything read about defendant’s case or else” that would impartiality. complains affect their Defendant trial court jurors specifically should have asked the about the Johnson case. disagree. We *78 express
Defendant did not concern over the case until Johnson 1994, 15, December the eve penalty of the commencement of the Furthermore, phase. request defendant not questioning did of the jurors guilt about the Johnson phase. ease before the Before deliberations, starting penalty-phase ju- the court asked the they rors had anything whether learned defendant about or heard impartiality else that could affect their in deciding defendant’s Although specifically sentence. the court not did mention John- son, inquiry the court broadened the to ascertain whether the jurors any prejudicial reports any had read from source outside the record. present Jasuilewicz,
The
case differs from
v.
State
N.J.Su
per.
denied,
(App.Div.1985),
In the trial searching court failed not to ask questions, generally any but failed ask questions about the jurors’ potential exposure Hinckley contrast, to the case. Ibid. here, although the trial specifically court it did not mention the case, adequately jury interrogated exposure Johnson its about prosecution. to another murder Jasuilewicz,
Unlike who was concerned about the reaction of the jury insanity Hinckley, to the defense in defendant here did not voice a day concern over the Johnson ease until the before the Thus, beginning penalty phase. question the court did jurors guilt the Johnson phase. about case before the Further- case, court in
more, present unlike the trial court Jasuilewicz, responded to defendant’s concerns. -
- E *79 failure to alleges error in the trial court’s Defendant during penalty phase. Defen sequester jury, especially the jury sequestration should be to rule that dant also asks this Court mandatory capital in all cases. generally to the
Jury sequestration is a decision
left
N.J.Super.
Moriarty,
v.
of the trial court. State
discretion
denied,
563, 569,
(App.Div.1975),
68 N.J.
A.2d 14
certif.
(1975).
places
great
on the
practice
The
burden
- - IX alleges prosecutorial mis- next various incidents of Defendant prosecutor: Specifically, argues defendant that the ex- conduct. summation; improperly questioned proper of ceeded the bounds analysis by asking questions an- expert on hair the State’s beyond scope inadmissible and of exami- swers which were court; indirectly by introduced nation as limited the trial and inflammatory evidence.
- A- prosecutor contends that the committed mis Defendant by urging jury apply product rule conduct in summation entirety to the of the State’s case. summation, defense counsel stressed that reasonable her identity Schnaps’s Irene murderer.
doubt still existed about the investigation by marred claimed that the initial Counsel shoddy evidence, police work including all of the State’s results, pool potential the DNA test could not narrow suspects below the thousands. prosecution
The countered in its summation that the evidence beyond established guilty reasonable doubt that defendant was Schnaps. prosecutor argued murder Irene to the jury: figure Use the rule ... and out in mind product your own the likelihood that one out of one hundred —it could be thousands —would have six and
person size a half [sic], shoe would have sneakers with the thread [sic] [sic] that size and match, wear Negroid blood stained at the it fact scene, hair pillow by multiply Negroid matched the hair found at match the from scene, Mr. exemplar the watch. Harvey, multiply by You have taken a started with in the world and you everybody circumstantial — narrowed that circumstantial you what available. These are the items that suggest were available at the This scene. is what the State used. I to you, they are more than sufficient to show a reasonable doubt Mr. you beyond Harvey committed this offense.
[********] *80 guesswork, This is not is not this this is fact. The a speculation, of probabilities having things, things, those all these are well a person minuscule, reason- beyond able and the that had doubt, characteristics, these whether be person blood, it hair, and size, shoe shoes watch is minuscule. That is Mr. person Harvey____ summation, Following objected the State’s defense counsel prosecutor’s probabilities the comment that the were “minuscule” evidence, all pieces together, the when taken allowed room argued for a prosecution reasonable doubt. Counsel that the “trying to determining assess mathematical standard” the Further, existence of reasonable doubt. requested counsel the jury court to instruct the that “reasonable doubt cannot come to [a] down or mathematical formula standard.” The court denied request. the challenges prosecutor’s
Defendant now the invitation for the jury to apply product totality the rule State’s Furthermore, alleges inviting evidence. jury defendant product to use the performance rule was akin to the of an improper prosecutor jury. demonstration before the
216 prosecutorial misconduct allegations of
We evaluate
prosecutor.
Prosecutors
responsibilities of
unique
light of the
vigor,”
and
United
“with earnestness
pursue their duties
must
1,
1038, 1042,
1, 7, 105
L.Ed.2d
7
84
Young,
S.Ct.
v.
470 U.S.
States
88,
States,
78,
55 S.Ct.
(1985)
295 U.S.
Berger v. United
(quoting
(1935)),
1314,
make a “forceful
629, 633,
L.Ed.
1321
79
Ramseur,
123,
106 N.J.
State v.
of the State’s case.”
presentation
(1987).
advocates,
attorneys
prosecuting
As
A.2d 188
524
v.
leeway
making a summation. State
when
enjoy considerable
(1974); Dixon, supra, 125
45, 48,
N.J.
Generally, prosecutorial misconduct does
“so
unless the conduct is deemed
ground for reversal
tute a
Ramseur,
a fair trial.”
deprived
it
defendant of
egregious that
reviewing
must
A
court
Here,
product rule did not
prosecutor’s reference to the
more a rhetorical
error. The comment was
constitute reversible
jury
apply
a mathematical
than an invitation for
device
*81
allega-
prosecutor
responding to defendant’s
The
was
formula.
limit,
pool
enlarge, rather than
the
acted to
tions that the evidence
rule,
product
the
By commenting on the
possible suspects.
of
evidence, when considered
argue that all of the
tried to
State
guilt.
collectively, pointed to defendant’s
Furthermore,
trial
any per
the
court’s instructions cured
occasions,
prejudice.
separate
ceived
On three
the court instruct
jury
ed the
that
the comments of counsel were not evidence.
Further,
gave
specific
the court
testimony
a
instruction that no
terms,
percentages
couched mathematical
such
probabili
as
or
ties,
proof.
could relieve the
of its
State
burden of
instruc
These
tions ensured that no
prejudice
confusion or
from
resulted
the
prosecutor’s product-rule
Spann, supra,
comment.
See
N.J.
(1993)
(stating
appropriate
- -B prosecutor’s Defendant next attacks the examination the hair-analysis expert, State’s Specifically, Theodore Mozer. defen- portions dant testimony contends of Mozer’s were both beyond permissible scope inadmissible the of the examination. objected Defense counsel when if Mozer testified that the match, of microscopically-compared characteristics hairs can “we probably determine that this hair ... person came from comparing sample which we’re to.” Defense contend- counsel testimony degree ed that a made with reasonable certainty. scientific testimony then State elicited from Mozer degree certainty to reasonable of scientific hair defendant’s compared “microscopically and physically” “Negroid” hair recovered from the crime scene. argues questions
Defendant that certain his to which successfully objected counsel invited answers that exceeded the scope testimony, extent represented by of the witness’s as prosecutor. Consequently, pros defendant maintains that the improperly impression ecution expert created had never made mistake and that the hair came from defendant. disagree. objec We The trial promptly court sustained defense questions. tions to reading Our of the record leads us to *82 questions do not warrant reversal prosecutor’s that the conclude of defendant’s conviction.
- -C is that allegation prosecutorial misconduct Defendant’s third of injected specter the case the of sexual improperly into State complains about the introduction Specifically, defendant assault. testimony regarding sent to the diagram and items of a schematic Laboratory. Police State trial, diagram a schematic prepared
Before the State explain items of Schnaps’s apartment to where it found certain approximately sixty Of individual of evidence evidence. items diagram. eight in the apartment, retrieved from the were featured eight diagram legend describing At the bottom of the was items, apartment. indicating their location in the diagram challenges the in the of the loca-
Defendant inclusion pair of her Defense “panties” tion of the victim’s and a shorts. objected being highlighted diagram, counsel to those items in the and to arguing they had no value that reference evidential potentially prejudicial. them was shorts, objection, noting
The trial overruled the that the court cloth, terry designed outerwear. which were made of were for potential Consequently, prejudice. to them devoid of reference panties relevant the State’s The court decided that were body allegation Schnaps’s traces had been washed to remove limiting accepted counsel the court’s offer of a of blood. Defense Subsequently, investigator to the instruction. State testified Schnaps’s apartment, including long list of removed evidence from jury: panties. The trial court then instructed gentlemen, goes [the and the investi- further, Ladies before heard prosecutor] you gator indicate what he retained from the and I know he referred to you apartment undergarments. I have but other allowed -that testimony panties perhaps charge against that there is no Mr. sexual Harvey understand any type please that. assault. Please understand Thereafter, investigator items described the sent 20,1985. Laboratory State Police on June Two of the items were pubic victim,” “oral, “a vaginal, hair control taken from *83 and autopsy.” anal swabs taken from victim at the the time of Hence, object Defense counsel did not to the description. we plain treat the reference to them of as a matter error. investigator began The then read to from the list of items that police laboratory “pubic were later sent to the including hair ” sample conference, the from sus... At a sidebar defense counsel objected pubic mention of agreed defendant’s hairs. The court prosecutor and instructed the the investigator could not refer to the of pubic submission defendant’s hair.
Defendant now the maintains introduction of sche diagram featuring matic panties, the location the victim’s the vaginal mention that and police anal swabs were sent hair, laboratory, pubic reference to infect combined to proceedings prejudicial with inferences of sexual assault. The contention without merit. instructions,
Through special
trial
court
that the
ensured
jury
any allegations
understood that the case
not
did
include
sexual assault. The court
abuse
admitting
did not
its discretion in
diagram.
prose
the schematic
That evidence was relevant to the
theory that
wiped
cution’s
defendant had
blood from
victim’s
body
damp
with a
towel.
do we
Nor
find that
State’s
investigator
specter
raised the
of sexual assault. The court
properly prevented
investigator
testifying
sample
from
pubic
police laboratory.
defendant’s
hair
to the
was sent
Like
wise,
plain
vaginal
we do not find
error in the reference to the
analysis
police
anal
laboratory.
swabs sent for
to the
See State v.
(“Trial
270, 277,
Harper,
N.J.Super.
319
(App.Div.)
A.2d 771
induced, encouraged,
acquiesced
errors which were
or
in or con
ordinarily
sented to
defense counsel
are not a basis for reversal
denied,
(1974).
appeal”),
on
65 N.J.
- -X police illegally seized the Seiko argues that Defendant trunk of car. He asserts further LaSalle watch found his right to four times on October police that the violated his silence 28, 1985, police methodology.” Those by “unrelenting[ly] coercive right silence, alleges, he coerced him into his violations of burglaries and a sexual admitting that he committed various *84 Township. argues He that the “coerced” assault in Windsor West to search car police “forced” him to consent of his admissions apartment accordingly Jamesburg on October 29. Defendant argues suppressed the the trial court should have watch.
- A- hearing, suppression At the trial court concluded pretrial had to the search and the watch that defendant consented acknowledged trial. could into at The court be admitted evidence arrest, 28, was an “exhaust- the date of defendant’s October Nevertheless, day court concluded that ing” for defendant. any and that police employ did not coercive tactics defendant voluntarily sought out to confess to the Detective Swanhart West Likewise, the court that defendant volun- Windsor crimes. held tarily signed the consent-to-search form. The voluntariness noted, consent, by fact court was confirmed defendant’s any incriminating in his that he not believe that evidence was did car.
221
-
-B
I,
417,
Harvey
supra,
483,
In
Once
defendant
right
invokes his or her
to
interrogation
police
can resume
if
administer
fresh set
267,
warnings.
supra,
of Miranda
Hartley,
103
511
N.J. at
A.2d
80;
Adams,
438, 445,
accord
v.
State
127 N.J.
A.2d 1097
605
(1992);
Fuller,
75, 83,
(1990);
State v.
118 N.J.
222 109, 100, N.J.Super. (App.Div.1991), A.2d 536 Mujahid, 599
v.
(1992).
rule,
denied,
561,
That
- -C on interrogated different times October Police defendant three When he to the West crimes. 28 before confessed Windsor a.m., they brought 8:30 informed defendant to the station at police rights, signed and he a waiver. Defendant him of his Miranda began interrogation at 3:00 at p.m. lunch around first ate p.m. 3:37 session, interrogation again police this read defen-
At first rights, rights form. The interro- signed his and he another dant hour, which defendant gation point a little over an at lasted “to think.” The interro- cry to and asked for a half-hour started ceased, to his cell. gation police returned defendant think,”
By invoking requesting to defendant was not “time 138-40, right Bey, to See v. 112 N.J. his silence. State II) (1988) request “lay (Bey (holding to A.2d 887 defendant’s down happened” did invocation of and think about what not constitute every questioning right compels to as “[n]ot silence break warnings”). Although of the Miranda renewed administration granted requested respite, they were police defendant formally resuming to him before their required re-Mirandize interrogation.
Questioning p.m. police resumed at 4:50 with “remind rights. lasted ing” defendant of his That session until defendant cry speak began requested to with his mother-in-law. That right to an invocation of defendant’s request tantamount I, 418-22, A.2d Harvey supra, 121 N.J. at we silence. when, right on that defendant invoked his to silence October held requested speak his Id. 581 A.2d he with father. 483.
223 was emotionally upset by Defendant p.m. the end of the 4:50 session family and wanted the advice of a trusted member. The police interrogation properly Harvey ended the and allowed to meet with Pearl Thomas. began interrogation police
When the next at p.m., 7:30 did Miranda not readminister rights. That omission violated the Hartley. bright-line rule of right As defendant had his invoked to session, end p.m. silence at the of the 4:50 police failed to scrupulously right Hence, honor his to silence. we concluded that “[a]ny prior statements made warnings to the new must be I, Harvey supra, 121 N.J. at suppressed.” A.2d 483. Defendant, however, no incriminating made statements during p.m. the 7:30 again session. defendant When became upset, police stopped questioning him and returned to his cell p.m. investigators’ at around 8:00 The to failure honor therefore, scrupulously rights, defendant’s prejudice did not defen dant. p.m., Harvey
At 8:15 speak initiated efforts to Detec with I, Harvey supra, tive alone. Swanhart As we concluded in N.J. at A.2d was police there “no evidence of coercion Furthermore, or misconduct” on 28. October defendant subjected was interrogations to designed “extended to wear will.” Ibid. Investigators provided down [his] with defendant lunch, dinner, cigarettes, chewing police tobacco. The also accommodated defendant’s wish have brought his mother-in-law jail speak to the with him. voluntary dialogue
Defendant’s reinitiation with Detec police tive relieved duty Swanhart to readminister Fuller, Miranda warnings. supra, 118 N.J. 84-85, 570 A.2d Nonetheless, warnings 429. Swanhart administered those before recording defendant’s confession. subjected any police
Neither was defendant coercion on October 29. The record during is devoid evidence of coercion the ear tour of West Windsor or afterward. form based on information consent-to-search voluntary confession. Defendant
provided defendant in his *87 search, they searching to what were police what the wanted knew Nonetheless, for, right the to refuse consent. and that he had voluntarily knowingly signed the consent-to-search defendant consent, police not the did need a form. Because of defendant’s Bustamonte, 218, 219, 93 v. 412 U.S. S.Ct. Schneckloth warrant. (1973). 2041, 2043-44, 36 L.Ed.2d lawfully detectives thus discovered the Seiko-LaSalle car, they bag searching tied the contain- watch. After defendant’s trunk, watch, the ing put bag the the in the and notified Plains- Later, County the police department. Middlesex Prosecu- boro the a valid warrant and seized watch. tor’s Office obtained search - -XI prosecution produce the failed to suffi Defendant contends that c(4)(f) aggravating justify factor to supporting cient evidence of jury. Aggravating penalty-phase of that factor to the submission c(4)(f) purpose to “committed for the of applies factor murders detection, trial, apprehension, punishment or confinement escaping another committed the defendant or another.” for offense 2C:11-3c(4)(f). killing that Defendant avers itself N.J.S.A. c(4)(f) Rather, support a factor. defen cannot submission argues produce proof dant that the State must that defendant specific escaping apprehension. killed with the intent Defen c(4)(f) duplicates argues impermissibly that dant also factor 2C:11-3c(4)(g) pertains aggravating factor N.J.S.A. which to (the felony c(4)(g) murder in the of a commission of a course factor). point capture. His is that all felons to avoid After want consideration, properly the trial court careful we believe c(4)(f) penalty-phase jury. factor to the submitted
- A-
c(4)(f)
key
finding
to
factor
is
“The
defendant
potential
a
to his crimes.” Martini
intended
eliminate
witness
I,
c(4)(f)
supra,
N.J. at
aggravating
A.2d 1208. The
apply
factor can
in
contemporaneous felony
the context of a
Merely
murder.
killing
during
because a
occurred
the course of a
not,
however,
felony,
itself,
support
does
submission of the
c(4)(f)
I,
Hightower
supra,
factor.
120 N.J.
- - B case, prosecution presented In the instant the sufficient support circumstantial jury’s evidence to the conclusion that one of killing defendant’s motives in Schnaps Irene was to eliminate her as a burglary witness to his apartment her and to avoid apprehension punishment for his crime. Defendant entered Sehnaps’s apartment by forcing open patio glass Appar a door. ently Schnaps bedroom, awoke and discovered in defendant her only showing which the signs jury was room of disturbance. The reasonably could have inferred that defendant decided to kill Schnaps prevent alerting neighbors, calling to her from her the police, later identifying person defendant as the who intended 377-78, to Loftin, rob her. See supra, 146 N.J. at A.2d 677 680 (finding presented that State sufficient circumstantial evidence to c(4)(f) support factor when wore even defendant mask because 226 voice, identify to his assailant’s “might have been able
victim build”). Indeed, by questioned weight, and overall when height, any complex hearing police, neighbors apartment in the denied apartment. adduced sufficient Schnaps’s The State noises from jury at least one defen to to conclude that evidence enable potential to Schnaps as a witness was to silence dant’s motives for apprehension his crime. avoid
- -C jury the had arguing penalty-phase to State the aggravating proving the existence of each of the met its burden doubt, beyond prosecutor the assistant made factors a reasonable c(4)(f) concerning following factor: statement the Aggravating was murder factor number three is this committed additionally to it Items were removed Yes, avoid was. an attempt prosecution, apprehension? items removed from this not to be stolen and but were kept Harvey, Mr. by bedding. suggest to to or to detection. I you body detect prevent apartment was clean in from [sic] of Irene washed an attempt police Schnappes prevent locating the that committed this Mr. offense, individual Harvey. object, argument Although defense counsel did by subsequent taken killer to the are improper. Actions murder c(4)(f) They do not inform the irrelevant determination. concerning killing. High motives for See inquiry defendant’s I, 99; Monturi, supra, N.J. 577 A.2d State v. tower (1984). 326-27, N.J.Super. A.2d by prosecutor’s proper The trial court remedied error ly instructing “[a]ny jury that evidence of actions taken prove the murder itself cannot be used to this defendant conceal Accordingly, prosecutor’s remarks in aggravating factor.” *89 plain summation did not constitute error. -
- XII c(4)(f) argument that the Defendant’s the factor violates c(4)(f) above, Eighth is without merit. As discussed Amendment duplicative c(4)(g) is not factor.
- -XIII argues Defendant that the trial court committed reversible jury the instructing guilt- error that it could all of consider the during phase penalty-phase evidence its deliberations. He avers the jury that trial court should have instructed the on which inquiry to aggravating-factor evidence relevant the limit- and accordingly. unguided ed the evidence Defendant contends jury guilt-phase impermissibly consideration the in- evidence jury creased the likelihood that the a capital would return sen- disagree. tence. We
- A- relating guilt-phase Instead of aggra the evidence the factors, vating jury the court told the it was consider all guilt penalty the evidence at and phases. both Defense objected requested counsel neither to the instruction nor that the specify jury court guilt-phase how should relate the evidence penalty phase. to the acknowledge
We
that the trial court should have instructed the
jury “concerning
may
it
penalty
evidence that
use
its
purposes
may
deliberations and
for which that evidence
be
Erazo,
(1991).
112, 133,
State v.
used.”
N.J.
However, the are considered as phases separate guilt The State contends that certain facts established verdict by your phase *90 following aggravating factors *** the *** also prove instructing again to on these facts to I that it is deliberate am you your duty faetor(s) aggravating alleges. You the the State determine whether they prove right an to a different conclusion about whether these facts have the reach prove guilt. aggravating as factor conclusion reached to whether they proved than the you [Manual J-6.] at however,
Here, specifically the designate court’s failure to the plain jury that should consider did not constitute evidence jury aggravating not to The court instructed the consider error. alleged by the and that it should other than those State factors phases of trial. evidence adduced at both Defendant consider object charge. specific did or a more Our review of the seek error not of such a nature as to have record reveals that the was unjust clearly capable producing been of an result. R. 2:10-2. - -B summation, prosecutor jury In directed the to evidence aggravating supported allegation that the State’s of factors. c(4)(c) support killing aggravated factor —that involved prosecutor jury invited to: assault to the victim —the nature Recall the of Dr. Shuster to the and the extent the wounds. testimony Rizzo as to where and how that blood was found Recall the testimony Captain that ... on a towel there chair, blood found underneath a where bedroom, hospital laying that face down, was a her found on the other side of bedroom back fan, body on the end with blood table. up splashed [sic] ... Dr. Shuster testified these wounds the head bleeds veiy she such would have become unconscious because there was profusely, simply again, photographs in the those a loss of blood head area. Look at those wounds at those wounds. I’m sure looked before. Look you not an to kill with one blow. This is an to commit, This is attempt attempt was successful to commit severe Mr. and he bodily Harvey, attempt pain successful. aggravating number That’s factor one. regard c(4)(g) the murder was commit-
With factor —that felony prosecutor jury told during ted the course of a —the indicating consider evidence that defendant the midst committing burglary robbery Sehnaps. when he killed Irene
Although prosecutor’s regarding the comments which facts were c(4)(f) prove (avoiding apprehension) relevant to the factor were improper, the trial properly jury “[a]ny court informed the evidence of actions taken the defendant conceal the murder cannot prove aggravating itself be used to this supra factor.” See Part XI.C.
Furthermore, correctly the trial court of defined the elements of charged aggravating each the jury and it factors informed the by any was not bound conclusions that it in guilt reached the phase. instructions, against background
The court’s when viewed the of prosecutor’s summation, the sufficiently jury informed the the of concerning aggravating evidence factors. photographs scene of crime the victim’s
body
properly
were
penalty-phase jury
submitted to the
as rele
c(4)(c)
Moore,
inquiry.
vant to the
supra,
See
- -C challenges Defendant also the admission into evidence photographs two apartment family the victim’s that showed photographs. photographs He contends that the constituted im disagree. victim-impact evidence. The State
permissible We jury with the crime photographs to familiarize the introduced in the struggle that no had occurred scene and to demonstrate upon the living prosecution room. The never commented victim’s any highlight photographs serve[d] “manner that Williams, State v. the jury.” in order to inflame victim’s virtues II). (Williams (1988) 393, 452, 113 N.J. 550A.2d -XIV- prosecutor reversible Defendant contends that the committed by inviting jury to penalty-phase error in his summation non-capital consider sentence constituted “sufficient whether argument unpersuasive. find punishment.” We
- A- *92 case, part presented Dr. penalty-phase As of his defendant Moran, professor sociology Holyoke Richard a Mount Col- lege, expert age as on criminal an the correlation between older, they people get Dr. Moran that behavior. testified as likely a generally are less to commit violent crime. Based on that theory, Dr. Moran testified:
years, I first believe that eligible that would for from Mr. parole, bring and I stress here could be Harvey’s us up to birth the year date 2014, [1950] and he would be 64 eligible the date for parole that he would after years old. thirty *** be eligible get age If he does when he’s first at the he will be paroled category [of crime]. lowest individuals to commit And if look at likely possible you fact in his ... that he committed the crime thirties under 40 commit people eighty-nine category He’ll move to he’ll be crime. where 60-plus percent category. in the risk lowest possible very Accordingly, Dr. Moran concluded that “there would be a tiny [Harvey] again.” minute chance would ever offend cross-examination, prosecutor questioned
On Dr. Moran assumption eligible about that defendant first be for his would parole prosecutor twenty years The asked: that is in 2014. “And today twenty years from or from 1994. Is that correct?” When (cid:127) agreed, prosecutor Dr. Moran ceased cross-examination. anticipation testimony, In of Dr. Moran’s the State asked that jury years the court thirty instruct defendant’s -without parole incarceration, original would start from the date of his not October from the end of the trial in December 1994. object. Defense counsel did not summation, defense counsel referred Dr. Moran’s testimo
ny age regarding the the defendant at time of the as offense factor, 2C:11-3c(5)(c). mitigating ar N.J.S.A. Defense counsel gued to jury: age this
What is that his when he this says committed offense was such that the get earliest he could ever out be would And heard possibly sixty-four. you that would indicate that sixties testimony their are one people very unlikely, only age. of all crimes violent are committed of that You percent heard by people testimony. prosecutor responded: age mitigating Is Mr. factor for to consider? Sure can Harvey’s you consider you it. You heard the if it is not it testimony, death, life, penalty, thirty years minimum What that mean? does thirty years. Very thirty years. What simple, that mean in does this case? The now Mr. year twenty years Harvey from eligible be will Is that parole, twenty years today. punishment for from sufficient do You consider may that. you feel? object. Defense did counsel
- -B argues Defendant now for the first time that the assistant defendant, prosecutor’s justifies comment According reversal. *93 argument asking jury this was tantamount to the to a consider non-statutory aggravating death-penalty during factor their delib- Furthermore, eration. argues prosecutor defendant that the sentence, non-capital made this that knowing comment a combined periods already with the of incarceration that defendant was crimes, serving for unrelated would be not enable defendant to eligible parole reject argument. for in 2014. the We
- -C attempt to consisted an penalty-phase case of Defendant’s thirty-year parole a jury the that a of life with convince sentence prosecutor appropriate a sentence than death. The bar was more justified. a jury asked the to consider whether such sentence was non-statutory aggravating factor to the arguing Rather than a question designed to jury, prosecutor simply posed a rhetorical the factor, weight “age” of prompt jury the to consider the the 2C:11-3c(5)(c). N.J.S.A. jury by allegation prosecutor misled the the date,
referring year parole 2014 as is likewise potential the eligible parole in Although meritless. defendant could not be for analysis. Dr. Moran included that in his That conclu date jury designed keep prior from defendant’s convic sion could prosecutor tions for unrelated violent crimes. Because parole, true he confined prospects not discuss defendant’s commenting presented by the himself to on evidence as ways. may not defense. Defendant cannot have it both He knowingly present parole eligibility an inaccurate date for jury, prosecution rebutting proof prior bar from it with sentences, claim and then error.
-XV- his argues Defendant entire trial was so infected with error alleged that even if do not individual errors constitute revers- error, aggregate, him fair trial. ible the errors denied (1954). Orecchio, 125, 129, v. 16 N.J. A.2d We State error, disagree. allegations singly trial and in Defendant’s both aggregation, are merit. are satisfied that defendant’s without We prejudice. fair trial was and that he suffered no undue - -XVI argues death-penalty Defendant statute violates prohibition punishment against cruel and unusual contained *94 Eighth Amendment of the Federal Constitution. As this Ramseur, originally supra, 106 N.J. at 166-97, Court held in 188, Harris, recently A.2d and supra, 141 N.J. at 574, restated in II, supra, DiFrisco 662 A.2d 137 N.J. at 645 A.2d I, supra, and Martini 221-22, N.J. reject 619 A.2d we argument. Jersey The New death-penalty statute is not protections violative of by Eighth offered Amendment.
- - XVII 2C:11-3e, to N.J.S.A. Pursuant requests defendant that we determine whether disproportionate his “sentence is penalty to the imposed cases, considering similar both the crime and the defendant.” We will proportionality review the of defendant’s pursuant sentence briefing argument schedule to be by established the Clerk of the Court after consultation with counsel. conclusion, defendant’s conviction for the murder of Irene
Schnaps and his sentence of death are affirmed.
HANDLER, J., dissenting. case, In this the Court sanctions a death sentence that was dependent analysis on an samples of blood identify that served to evidence, defendant as the Schnaps. killer of Irene That endorsed by today affirming the Court defendant’s conviction of murder death, and his sentence of was not accepted based on scientific knowledge. Further, the Court deems the evidence to have been though hearing reliable even conducted the trial court to admissibility determine its did not acceptabil- focus on its scientific ity reliability. specific evidence that was admitted to establish identity defendant’s procedure was derived from a novel methodology or analysis of blood dot-intensity analysis. known as Dot-intensity cannot, analysis measure, by any be considered generally reliable or accepted. It supported by any is not authori- ty sufficient to reliability establish its scientific acceptance or any reputable body within community or of scientists. presented capital prosecution thus are with a that is based
We *95 esoteric, primarily disputed, problematic on and evidence. It is reliable, clear because that evidence is defendant’s convic- approval tions and sentence cannot be sustained. The Court’s scientifically that evidence as is a reliable mistake of enormous significance profound misunderstandings on based the law and facts. majority compounds by failing recognize
The its error improper placed unfair and limitations were on defendant’s chal- lenges by sustaining to the DNA evidence and then the use of a problematic analysis conjunction in “statistical” with the evidence probative significance. to enhance its The statistical evidence employs a mathematical calculation that is inexact used when with and, case, analysis in factually erroneously DNA this is based on Further, data. that statistic-based evidence was admitted without hearing reliability through lacking a to determine its a witness adjective expertise. in opinion Part One of this addresses those issues. case,
In the course trial significant of this other errors Among contributed to defendant’s conviction and death sentence. jury those errors trial charge were the court’s erroneous on the Mejia issue, though which the Court finds harmless even it eligibility penalty; resulted in defendant’s appli- for the death factor, escape-detection aggravating cation of the which Court part part finds in in though clearly harmless and error-free even it sentence; misleading contributed to defendant’s death and the sheet, although verdict which the Court also finds harmless it was clearly capable dissuading jury returning anything from but death-eligible murder verdict. Those issues and others are considered Part Two.
Part One connecting The evidence adduced at trial defendant to the Schnaps purely murder of Irene was circumstantial. It consisted print aof shoe found at the crime scene consistent with sneakers defendant; single recovered negroid from hair with characteris- hair; defendant’s victim consistent with found underneath the tics of the same the scene and a watch empty box found at an watch car; at the empty an camera box found type in defendant’s found car; and blood strap found defendant’s scene and a camera was damning of the evidence for the defense The most evidence. clearly evidence. the blood of both traditional and established evidence consisted blood rarely testing. used DNA
enzyme analysis as well as novel analysis hardly determinative because The traditional blood incomprehen- or majority of the results were inconclusive the vast One result showed Only results were readable. sible. two person as who contributed could not be excluded defendant result indicated that the at the scene. The other the blood found African-American, although the contributor to the blood was *96 anyone from whose enzyme in could have come found the blood racially from mixed ancestors. lineage derived analysis weak and inconclu- enzyme Because the traditional sive, much further. Like its blood evidence the State extended analysis, from blood-enzyme the evidence derived traditional the testing that defendant could DNA showed the extended novel found at the scene. possible a source of the blood excluded as be however, analysis, the State’s extended traditional Unlike the produce quantify the results and analysis purported to that defendant was figure representing the likelihood statistical only suggested that construct donor. That statistical the actual at the 1,400 could have left such blood African Americans one evidence, embellishing statis- as well as It was that DNA scene. and tics, defendant’s conviction relied to secure on which State death sentence.
I DQ-Alpha testing of DNA evidence consisted The State’s basic relatively testing procedures are- testing. Those polymarker and DQ-Alpha new, untested, enjoy acceptance. fidl and do not gained however, universally accepted, has although not testing, 236
approval
jurisdictions,
Council,
in numerous
see National Research
Evidence,
(1996)
The Evaluation
Forensic DNA
177 & n. 30
of
(“NRC
”),
ours,
Dishon,
Report
including
N.J.Super.
State v.
297
254,
Williams,
(App.Div.1997);
The of polymarker testing and have accepted evidence, been as a basis for admissible scientific but they designed. when have been used as descrip Court’s tion of the parts DQ-Alpha first two polymarker testing separation amplification of the DNA strands —is —the adequate. 157-163, See ante at 699 A. 2d at descrip 615-617. Its tion of the part third and crucial testing, analysis results, however, requires elaboration why to understand dot-intensity evidence used in this analysis wholly un ease— —is settled, controversial, highly problematic and of scientific reliabili *97 not, ty; by it is majority, simply as indicated the an obvious and routine extension of testing the basic DNA methodologies.
A. process isolating The of fragments, amplifying DNA the DNA segments, analyzing using and the results the reverse dot-blot system, DQ-Alpha polymarker is identical for both the testing and kits, open is For the cell’s nucleus broken release kits. both DNA, separated out portions and the relevant DNA are the filtration, centrifuge. by cleansing, and the utilization of chemical amplification amplified. During are the The DNA materials then apart through stage, heating and DNA strands are broken primers DNA and then allowed to reform with loose matter subject mixture. materials then to the are added to the The are analysis during newly stage, which the isolated and examination or testing amplified strips. flooded The difference DNA is over polymarker testing DQ-Alpha testing and is that between (the amplification process) primers stage and the used two (the are strips stage process) used in three examination different. developed DQ-Alpha polymarker kit kit were Both and the company. and manufactured same designed DQ-Alpha polymarker The tests were so analyzed strips” “reverse using are “little with results dot/blot technology.” nylon strips dots allele- The membrane contain with During amplified probes. stage, third DNA specific represent product strips. is The the sec- flooded over the dots (“loci”) being of The number of loci tions the DNA examined. alleles different in the two possible tested and the number are locus, testing polymarker DQ-Alpha one while tests. examines (five testing markers as as the polymarker at six loci well looks marker). commonly DQ-Alpha has six DQ-Alpha marker alleles, recognized polymarker the five markers has while each of strips, testing there are dots possible two or three alleles. On types particu- for representing of the different of alleles each lar marker. alleles, genotypes. person’s genotype A represent
The dots alleles, particular composed pair of a one allele for a marker instances, coming parents. In some person’s from each of DQ-Alpha testing can polymarker determine which of possesses. DQ-Alpha has genotypes different an individual locus up every twenty-one genotypes, possible made combi- different *98 loci, polymarker The possible nation six alleles.1 which have each, only possible only two or three alleles thus have three or six possible only genotypes.2 sample person’s If a one DNA contains testing presence of blood and if the kit identifies the two different alleles, genotype by can then the individual’s be determined combining (everyone simply only the and two alleles has two two marker; alleles, however, genetic alleles for each the two can be same). example, sample the For if the victim’s is found DNA alleles, DQ-Alpha 2 and have both the the then we know the “2,4.” further, genotype sample victim’s is a To if illustrate the allele, B geno- then suspect’s reveals HBGG HBGG “B,B.” type is experts strips during
The State’s how testified about used analysis stage polymarker DQ-Alpha testing and work. strips representing The contain dots alleles for different a blue) particular (brighter marker. The dots more become intense as strips the enhanced DNA that is flooded over the binds or Word, “hooks” to the dots. Dr. a Charlotte scientist Cellmark Diagnostics, for testified the State that this an “instamatic process whereby you get development you get a colored and will methodology place blue dot in a DNA The reaching attached.” for result, hardly complicated. “you result is To reach simply strip.” read off the blue dots If the dot remains blank or faint, represents then allele the dot considered present Every sample. development brighter DNA color presence than the control dot indicates of the allele that the Co., AmpliType Ampli- PM: PCR represents. dot Perkin Elmer recognized 1 The six alleles at the time of this trial are types DQ-alpha (a) genotypes 1.2, 1.3, 2, known 1.1, Thus, as: and 4. the 21 include: 1.1 (b) (c) (d) (e) 1.1; 1.2; 1.3; with 1.1 with with 2; 1.1 1.1 with 1.1 with paired 3; (f) (h) (i) (g) 1.1 with 4; 1.2; 1.3; with 1.2 1.2 with 1.2 etc. 2; with 2 The alleles are denoted letters. For the LDLR polymarker example, B), (A genotypes has two alleles and and polymarker, three possible possible (A,A; B,B). (A, C), A,B; and B, HBGG has three alleles and polymarker (A,A; C,C). genotypes A,B; and thus A,C; B,B; B,C; has six possible (Dec.1993); Cell- Typing Kit Procedures Manual fication *99 DQa 1 Results Interpretation HLA Test Diagnostics, mark (Mar. 1992) (“Those stronger or than the equivalent dots testing positive.”). kits were considered The dot are [control] presence or of certain the absence designed to measure overemphasized. point cannot be alleles. That Cellmark, strips and the results of the At two scientists read results they observe. The independently record the results by a photographs are reviewed photographed, and the are then strips read that the should be person. Dr. testified third Word appropriate they developed that is the as are because “as soon Indeed, strips immediate- should be read time to read them.” the dots become ly, they photographed, are even before because fade, expert intense, disappear. The State’s quickly and even less very long strips.” on the don’t last emphasized that “the blue dots noted, kits, testing were DQ-Alpha as polymarker and The particular presence absence of a designed only to reveal the or State, however, just determining further than The went allele. Its DQ-Alpha polymarker alleles. and presence of the various “dot-intensity analy- procedure a known as experts performed also by unapproved the scienti- procedure is untested and sis.” That community. fic detecting in traditional for errors
Although potentially useful dot-intensity analysis used testing, DQ-Alpha polymarker and persons possibly the class of who in ease to narrow further this the crime scene. to the blood found at have contributed eould case, purported to effect, analysis, applied in this dot-intensity as technique alleles.” In the expert "association of State's called this The however, literature, phrase a used to describe of alleles is association scientific else, among dependence something namely, between different interaction or DeCou, Budowle, See, Lindsey, Jacqueline Barbara e.g., Jenifer Bruce alleles. Koons, Giusti, Population Comey, Studies Validation and & Catherine Alan loci), LDLR, GYPA,HBGG, D7S8, (PM Using HLA-DQa a and and Gc Loci Procedure, (Jan. Typing Multiplex Amplification 40 J. Forensic Sci. and "dot-intensity analy 1995) ("F.B.I. ”). terminology Study accepted The more sis.”
quantify intensity present sample. of those alleles hypothesized examining State relative intensities of DQ-Alpha testing polymarker the dots obtained and the sample, testing a mixed on one could determine the relative presence of presence certain alleles. Once the relative determined, alleles was one could “subtract” the alleles from a sample thereby known contributor to the and reveal unknown genotype. contributor’s degree principle
To a certain the subtraction is a method of in analysis elimination and is dot-intensity used even without analysis. For example, if the test of the HBGG marker revealed (A, C) presence B, possible of all three alleles in mixture persons containing DNA from if two one of the contributors *100 “A,B,” genotype has a of then we the other know contributor must (i.e., genotype have a with at least one person C allele the could be “A,C,” “C,C”). “B,C” genotype Dot-intensity analysis, or howev- er, goes beyond relatively straight-forward that process. pur- It ports only alleles, presence not the of establish but also to quantify present. those alleles that are
Dot-intensity analysis single premise. is based on a It assumes testing that if strip brighter the reveals a blue dot for one of the alleles than for strip the other alleles that the indicates are present, brighter the dot present then means that that allele is in greater Using amounts than other example, alleles. the same if strip presence the HBGG marker test revealed the all of three (A, B, C), dot, alleles if A brighter dot is than B or C genotype “A,B,” and if first contributor has a of the second “A,C” contributor is genotype. assumed have the That is because the that genotype would reveal more A B alleles than “A,B” or C when alleles combined with genotype the known “A,C.” Applying analysis, would be that the result would be merely that contributor unknown has least one C allele and “A,C” “B,C” possible genotypes therefore could have of either or “C,C”; rather, analysis conclude, or that would because alleles, A that the contributor presence of added or extra assumed “A,C” genotype. in fact has the work, present in dot-intensity analysis alleles are when
For amounts, strips must be of the same the dots on the the same DNA, So, containing single individual’s intensity. sample in a should are obtained the results be dot intensities that Word, “[polymarker “relatively Dr. testified that balanced.” equal dot-intensity designed to show an when testing strips are single example, if a single individual.” For DNA came from a polymarker strip test applied to the enhanced DNA is individual’s strip marker and that test containing the allele dots for the GYPA A and the B alleles for the has the shows that the individual marker, marker A and B allele dots on the GYPA then the GYPA reasoning intensity. The behind strip equivalent test should be alleles for each an individual has two assumption is that (or, represented marker, equally those alleles are each contain one of differently, the DNA strand will phrased strand). on the parent paired from each allele —one — dot-intensity analysis assumption of The fundamental sample genotypes of a blood applied it is to determine when occurs, is caused dot-intensity the imbalance imbalance and a present. The of alleles in the amount the relative imbalance why however, explanations for imba- other experts, offered State’s among First, differ- variances may there are some lances occur. slight may cause alleles that and in the different individuals ent Second, sample. single intensity in a individual’s differences even may mixtures, ... a locus probe intensities within “relative *101 nonopti- alleles or presence in the of variant become imbalanced Third, manufacturing or a defect a defect [test] mal conditions.” intensity. Finally, in may differences dot procedures in the cause particular may a allele arise because different dot intensities allele, strength which than another present greater in or different explanations, Despite other in mixture. those true a would be any intensity however, imba- dot-intensity analysis assumes that alleles and that the presence of the due to the relative lances are presence by relative of alleles can testing strips be measured the though strips designed only even the were to presence disclose or absence of alleles.
B. samples Several dry were tested in this sample case: blood defendant, taken from sample from a towel found at the crime thought blood, scene and to contain the victim’s sample and a boxspring taken from a apartment thought the victim’s and to contain a mixture of suspect’s the victim’s and the blood.4 No sample containing only suspect’s blood blood was recovered Thus, from the scene. suspect’s genotypes, determine the genotypes compared victim’s had to be sample, the mixed and presumed what was belong unaccounted for was suspect. to the following chart by summarizes the results obtained Cell- analysis (from mark in the sample defendant’s known swatch police blood), created with defendant’s the victim’s (from sample known scene), a towel recovered from the and the (from unknown boxspring). mixture of DNA Summary Evidence Mixed Dot Schnaps’ Sample Suspect’s Susp.’s Harvey’s Sample Sample Expected Marker Intensity Dot I. w/ = 2 & 4 DQa 2,4 2,2; 2,4; or 2,4 4,4 4,4 LDLR A&B > A,B B A A,A; A,B; B,B B,B or B.B 4A fourth was taken from a of bloodied sample cardboard found at piece degraded scene, but this last was too to be sample therefore was analyzed not introduced in evidence. 5 The column genotype labeled genotypes refers to "Suspect's or Expected” one would to have if we assume expect the mixed suspect contains sample (and only) both Ms. blood and the Schnaps’s blood. The column suspect's labeled genotype Dot I.” refers to the "Susp.’s w/ one would expect suspect (and others) to have if we make the same some assumptions if we use dot- The column intensity labelled "Dot analysis. refers to the Intensity" compari- sons that Cellmark made testing and the results that Cellmark obtained from the comparing the relative strips intensities. *102 > A B GYPA & or A B A,A A,B B,B A,B A,B HBGG B & C A, B,B A=B=C n/a A.C A,B B,B A.C A,B > A B B D7S8 & or A A,A A,B GC B & A>B A, A,C A,B; B,B; A,B A,B C & or C B,C using dot-intensity analysis, This table shows that without but results, considering polymarker DQ-Alpha both the defendant sample cannot be ruled out as a contributor to the mixed if the sample Schnaps’s (compare “Suspect’s also contains Ms. DNA column). Expected” “Harvey’s Sample” column with some instances, however, particularly helpful the results are not because persons example, almost no are excluded as contributors. For person any LDLR marker results that a show with of the three (A,A; A,B; B,B) possible genotypes LDLR or could have contrib- hand, sample. uted to the mixed On the other even without dot- analysis, intensity from results the HBGG marker show that (A,C). suspect particular genotype must have HBGG Using dot-intensity analysis, argued the State that it was able narrowly Analyz- much genotypes suspect. define more LDLR, GYPA, D7S8, ing using and GC markers and dot-intensity analysis, only persons the State claimed that with the genotypes exact for those four markers as defendant could have sample (compare “Sups.’s contributed Dot I.” column w/ column). “Harvey’s Sample” with point dot-intensity analysis
The State did not to the results of DQ-Alpha for either the HBGG marker or the marker. As for marker, dot-intensity argued analysis the HBGG the State unnecessary principle was because the subtraction revealed that A,C suspect genotype. must have the The State did not explain why, dot-intensity analyzed, when results were the results alleles) (equal comport dot intensities for the three did not with Further, theory. explain the State’s the State did not whether or marker, dot-intensity analysis possible DQ-Alpha for the comparing (equal but the results of dot intensities intensities for *103 alleles) support and 4 would not the State’s assertion that genetic suspect. profile defendant fit the of the
II principal disagreement majority The that I have with the con- general dot-intensity acceptance testing. cerns the of Dot-intensi- ty analysis by upon was the essential evidence relied the State to person demonstrate that defendant was in all likelihood actual sample whose blood contributed to the mixed found at the scene. majority properly, if reluctantly, recognizes dot-intensity The that method, testing, general as a scientific must meet the standard acceptance DQ-Alpha polymarker if testing even and are them- generally accepted majori- selves found to be scientific tests. The however, ty, distinguishing misconstrues the and distinctive fea- dot-intensity testing DNA, analyzing tures as a method of denigrates many challenges testing of defendant’s to the as not going reliability to procedure, of the but rather to its then, weight, record, embarrassingly and on an deficient summari- ly procedure passes concludes that the novel scientific muster long-standing precedent. Dot-intensity analysis under our as used procedure any case, here —a never before used in court successful- ly any laboratory, any documented or validated scientific study published or literature —has not been shown to be an procedure. Further, established and reliable no foundation for record, dot-intensity analysis exists in the and the results obtained clearly grossly Finally, show that such evidence is unreliable. analysis assumptions rests on a combination of that renders the unpersuasive speculative evidence so and that it is inadmissible Jersey under New Rule Evidence 402.
A.
polymarker
DQ-Alpha testing
designed
and
kits were
solely
presence
to determine the
or absence of certain alleles.
however,
Dot-intensity analysis,
purports to determine more.
It
purports
quantify
present
thereby
the alleles that are
identify
to the
specific
alleles contributed
each donor
DNA
majority only grudgingly rejects
argu
mixture. The
State’s
dot-intensity analysis
nothing
ment
new and that no
independent
be
basis for its admission need
established. Without
discussion,
recognizes,
really appreciating,
it
without
admissibility.
requires
independent
an
foundation for
difference
concession,
Ante
Notwithstanding
at
A.2d at 624.
its
majority
erroneously
defen
then
devalues
mischaracterizes
challenges
challenges
competency—
dant’s
to the
to its
evidence—
merely going
performance
polymarker
as
of the
test
Cellmark’s
“concerning]
admissibility,
weight
and as
but the
evidence.” Ante That
Defendant’s challenges reliability ing. specifically th[e] Defendant “the of test kit, sample and reliability dealing its in with a mixed blood the [dot-intensity analysis] for reliability propounded technique of the sample.” In interpreting of a on a mixed blood the results test fact, dot-intensity appeal exact claim on this is that defendant’s analysis generally accepted is not within the relevant scientific brief, dot-intensity community. As noted in defendant’s the Shaler, supported by Dr. Dr. interpretation “method of [was] Blake, study by Roche the FBI or even the research conducted Laboratories, question.” in manufacturers of the kit Molecular asserts, not, only challenges go to “Cell- Such do as the Court test,” 178, 699 A.2d ante at performance polymarker mark’s merely weight the evidence. at and thus do not concern the of actually challenged admitting
In defendant order to avoid analysis, majority four reliability dot-intensity the cites of 246 supports of its inaccurate that defendant’s
cases
assertion
only
challenges
accuracy
dot-intensity analysis go
to
178-181,
weight to be attached to such
Ante at
A.
evidence.
699 2d
eases, however,
Marcus,
at 625-626. Those
v.
294
State
N.J.Su
per.
(App.Div.1996);
People,
683
221
Fishback
A.2d
v.
851
(S.D.
(Colo.1993);
Schweitzer,
P.2d 884
State v.
156
N.W.2d
1995);
Kalakosky,
and State v.
Two of the cases cited
Marcus and
interpretation
x-ray type
concern
of “autorads.” Autorads are the
RFLP-type
analysis.
compare
results obtained from
DNA
To
exists,
RFLP results
and
determine whether a match
autorads
fact,
analyzed
compared.
obtaining
must be
and
interpretation
part
process,
of autorads is a
of the RFLP
and both
testing,
including
obtaining
courts found that RFLP
autorads,
Marcus,
interpretation
generally accepted.
su
278-79,
pra,
N.J.Super.
(noting
at
247 strips goes beyond strips what results that designed were presence show—the generally accepted alleles —is as scienti Lowe, fic supra, evidence. F.Supp. (finding 954 at 411 that a Cf. switch to a “technique viewing new for lengths band [i.e. autorads] absolutely ... validity [that] has no effect on the of the overall methodology [i.e. RFLP]” still must be evaluated “to ensure reliability”).6 Thus, expert’s ability unlike “an perceive an abnormality x-ray,” on an concededly which “is a matter within the province Marcus, jury,” supra, N.J.Super. at decide, A .2d here we analogy, must whether a doctor’s interpretation x-ray of an can be admitted without restrictions when he x-ray testifies to a condition that designed was not Therefore, reveal. diagnosis while a doctor’s of a broken bone x-ray may from an be admissible because it generally is based on a accepted interpretation test, generally accepted of a the doctor’s diagnosis of cancer from x-ray ought that same not to be admitted unless and until the doctor can diagnosis establish that such a x-ray from generally accepted. an
Nor does the Fishback
support
case
the State’s assertion that
dot-intensity analysis
properly
despite
was
admitted
the absence
independent
Fishback,
validation. The court in
supra, clearly
acknowledged
theory
that “both the
techniques underlying
novel scientific evidence [like the DNA test there at issue] must be
generally accepted....”
The other two cases on which the Kalakosky, supra, rejected unhelpful position. its the court specific challenge to DNA results based on the a defendant’s laboratory at procedures utilized. 852 P.2d 1072. defendant argued during procedures rendered the that human errors unreliable; alleged specifically, the defendant results samples accidently spilled together and that the DNA had been correctly record of the results had been mislabelled. The court fact, questions challenges not to the found those issues to be Indeed, admissibility testing. of DNA the defendant did not challenge accuracy process if the results had been here, correctly performed. Id. at 1072-73. Defendant con- trast, dot-intensity analysis accurately challenged the use of in particular process performed obtain results even if the were technically manner. correct case,
The Court also cites the Schweitzer which concerned a dispute expert’s an on over statistical conclusions the DNA test results, performance interpreta- not the of the DNA tests or the case, tion of in those results. Unlike this the defendant there dispute principles upon the scientific which ex- “d[id] [the Schweitzer, pert’s] supra, conclusions were based.”8 533 N.W.2d at 159. 7The Fishback court went so far as to demand that the statistical frequency subject general in the case be to the test of for analysis performed acceptance Id. at 893 & n. 18. Even that was not done here. See discussion
admissibility. one, section IV. part infra 8Although Schweitzer, the Court cites it refuses to measure the statistical against evidence at issue here the same standard the court applied Schweitzer. one, Schweitzer, See discussion IV.C. section part Specifically, infra recognized court that even a statistical must be found to be expert's opinion reliable, relevant, and based on valid before such evi scientifically principles dence could be admitted. N.W.2d at 159. *107 Jersey compels finding
New
ease law
a
dot-intensity
also
that
analysis requires independent
Repeatedly
validation.
and consis
tently,
just
has held
is not
principle
this Court
that it
the scientific
“technique”
analysis”
but
or
expert
“mode of
used
that
E.g.,
Kelly,
must have a sound scientific basis.
State v.
97 N.J.
178, 210,
Cavallo,
(1984);
508, 517,
reliability interpretive of that has been onstrated. rejected Supreme Court also has the State’s
The United States interpretations of scientific tests need be the notion v. Merrell Dow Pharma independently admissible. Daubert ceuticals, Inc., 579, 2786, 509 113 S.Ct. 125 L.Ed.2d U.S. 469 (1993), leading governing the admission of scientific case courts, recognized that evidence in federal the Court “scientific validity validity necessarily for purpose for one is not scientific other, Id. at at purposes.” unrelated S.Ct. fact, expert’s opinion must be based on the
L.Ed.2d at 482. In an science,” “subjective not on belief or procedures “methods and unsupported speculation.” Id. at S.Ct. *108 qualify knowledge,’ at 481. as ‘scientific an “[I]n
L.Ed.2d order by or assertion must be derived the scientific method. inference by Proposed testimony supported appropriate must be vali i.e., ‘good grounds,’ on what is known.” Ibid. based dation — Daubert, following step, courts have held that “each from (cid:127) v. premise initial to ultimate conclusion” must be examined. Hall (D.Or.1996). 1387, 1401 Corp., F.Supp. Healthcare 947 “In Baxter words, reliable, scientifically accept, other this court need not as any good permit drawn conclusion that science does not to be from which, instead, underlying ‘unsupported data but the constitutes ” or, speculation,’ ‘leap ... a faith.’ Ibid. Third of The Circuit recently precedent: such confirmed knowledge
Daubert’s that the to scientific testify requirement expert —conclusions good grounds for each in the that step analysis any step supported —means renders the unreliable under the Daubert factors renders the analysis expert’s changes This the inadmissible. is true whether testimony step completely methodology methodology. reliable or merely misapplies (1994), Litig., R.R. Yard 35 F.3d 745 cert. 513 [In denied, Re Paoli PCB (1995).] 1190, 115 U.S. S.Ct. 131 L.Ed.2d134 Bernstein, generally Admissibility E. See David The of Scientific Pharmaceuticals, Inc., Evidence Daubert v. Merrell Dow 15 After (1994) (noting Cardozo L.Rev. 2164 that under Daubert’s test, underlying two-part a court has determined that the “[o]nce
251 upon by expert or relied studies data an witness are reliable and trustworthy, remaining question expert the is whether the has data”). properly extrapolated from those studies or Another example principle light problem federal of the court’s this sheds on analysis: with State’s For there be an instance, times where relies on literature may expert published forming tested theories in her her accepted, ultimate widely opinion, conclusion is relevant to an issue the case. if those clearly Yet, published theories and from XYZ, and studies concludes purport them, prove expert reasoning it that the
ABC, be itself is not valid. process may expert’s scientifically (E.D.Va.1995), [Cavallo v. Star in relevant Enterprise, F.Supp. aff'd (4th Cir.1996), and rev’d in cert. F.3d 1150 part part, filed, petition for (U.S. (No. 96-1493).] 19, 1997) U.S.L.W. 3666 Mar. Here, polymarker testing; “XYZ” in example unsupported analysis dot-intensity “ABC” conclusion is that can polymarker testing performed be on results. majority utterly ignores underlying a second related issue
in dispute.
only
possible
The issue is not
whether it is
theoretical
ly
perform dot-intensity analysis,
poly-
but
also whether
designed
reliably
marker
capable
test kit was
to and was
measuring
determining
dot intensities as a basis for
presence
quantity
or absence of alleles
the relative
of alleles
but
Kimmelman,
66, 80,
present.
Romano v.
96 N.J.
B. analysis majority’s dot-intensity passes the conclusion that First, test is most remarkable. not even general-acceptance does; rather, temerity suggests that it the State has the State [polymarker] wrongly argued “[[Interpretation of the PM conclusions, resulting jury for the strips, and the are matters deciding weight in of the evidence and not for the resolve reject Having forced to court to decide as a matter of law.” been majority struggles argument, the in vain to sustain the the State’s procedure this use of this evidence. order to find —a case, any in never success procedure never before utilized court fully any laboratory, hardly and even discussed in documented muster, any passes the Court wreaks publication or conference — grossly Although precedent havoc on our distorts the record. appears pay homage precedents to our vital this the Court 172-174, 622-623, area, application of see ante at 699 A.2d at its sparse those cases to the facts here is marked aberrational principle. departure from test, application general acceptance turning
Before
to the
precedent
necessary
our
to understand
a brief reexamination of
majority’s
admissibility
scope of the
blunder. The
of all
evidence,
being
in a
particularly
but
scientific evidence
used
proceeding,
“clearly
v. Has
criminal
must be
established.” State
kins,
643, 649,
Romano,
(1993);
supra,
253
materially
able results so as to contribute
to the ascertainment of
210,
364;
Kelly, supra,
the truth.”
97
at
N.J.
478 A.2d
see
Romano,
80,
1; Cavallo,
supra, 96
at
supra,
N.J.
474 A.2d
88 N.J.
Hurd,
520,
1020;
536,
supra,
443 A.2d
In there are prove three that evidence is generally accepted and therefore reliable:
(1)
general
among
as to the
by
those in the
expert testimony
acceptance,
profes-
on
sion,
which the
witness
premises
based his or her
proffered expert
(2)
legal writings indicating
authoritative scientific and
analysis;
by
underlying
scientific
community accepts
premises
proffered testimony;
(3)
judicial
gained general
that indicate the
by
have
opinions
expert’s premises
acceptance.
(1990)
I)
(Haney
(quoting
[State v.
121
N.J.
Dot-intensity analysis does not come close Dot-intensity evidence. for the admission of scientific standards any DNA successfully performed on analysis has been never case. Not experiment in or in an actual anywhere, be it an sample case, then, publication, and no scientist no court no surprisingly analysis does work dot-intensity can and has concluded that ever consistently. reliably and majority that such a novel possibly claim how can the
So Despite its ultimate con testing procedure is reliable? scientific clusion, example, paragraph of really not. For the one it does testimony on the majority’s opinion expert to the the devoted majority dot-intensity analysis, the best the general acceptance of (ill-defined) that, in some say that one scientist said can do is to circumstances, differing may indicate unbalanced dot intensities 182-183, A alleles. Ante at 699 .2d presence particular of relative majority *112 Worse, though, majority the is forced to bend the record fact, support. obtain even those shreds of In has been will as and detailed, dot-intensity accepted be iterated and no court ever has analysis, dot-intensity no analysis scientist ever has defended as a method, nonsubjective reliable and scientific no or and literature professional supports by parties conference cited the such test. dot-intensity analysis even
Not the State’s scientists defended reliable, nonsubjective as a Dr. Ms. scientific method. Word and errors, Cooper procedure fraught both admitted that the is with they repeatedly utterly both results noted the are subjective.10 although many Dr. conceded that “in cases Word dot-intensity interpretations [using can be made of the mixtures analysis, certainly all this] [can]not [be done] in circumstances.” trial, During hearing the and at what she defined neither in circumstances it could be done in what it could nor circumstances subjectivity An additional arises of the of the as a result interpreta- problem tions. Because dot must be viewed after the comple- intensity immediately testing tion of the and while the test are still wet and because the strips strips deteriorate results even cannot be or quickly, preserved fully captured rendering subjective thus immune from photos, effectively interpretations critical evaluation. prosecutor, provided a few to the she done. In a letter not be that it is generally known to forensic scientists “It is more details: types of the individual donors usually impossible to determine the using 3 more individuals a mixture from or if the DNA contains may be true kits. This also [DQ-Alpha polymarker] for However, 2 source only 2 sources. for DNA mixtures from types possible to determine the of each samples, it is sometimes Letter intensity differences detected.” if there are the donors Corbin, Word, Diagnostics, to Mr. Assistant from Dr. Cellmark added). (Oct. 18, 1994) Prosecutor, (emphasis 2at dot-intensity testimony on fact, of Dr. In the extent Word’s filling only line or two of the remarkably sparse, analysis was testimony, In that she transcript direct examination. brief of her could be an indica opined that unbalanced dot intensities properly that, apparently decided—without of a mixture. From she tion conclu any explanation support or she could draw evident —that to admit regarding presence of alleles. She went on sions relative cross-examination, however, many could other reasons on possibili explain intensity [sic] differences: several “[T]here’s fact, intensity give me these dot differences.” ties that could dot-intensity differences to conditions other she attributed some Thus, majority’s amounts of alleles. than different relative expert testimony supports characterization that “the State’s general acceptance dot-intensity analysis,” ante at exaggerated. A.2d at
Moreover,
testimony
considered with and
Dr. Word’s
must be
Ironically,
against
testimony
experts.
of other
balanced
*113
testing in
supporter
admissibility
polymarker
of
of
principal
testing
nation to admit such
was Dr. Robert
the first case
Shaier,
Morales, supra,
257
appears
recognize,
As
Court
the scientific literature even
discussing
endorsing
validity
dot-intensity
less
of
—much
—the
181,
(“[T]hree
analysis is scant. Ante at
For
Investigations,
the Federal Bureau
widely
of
in a
respected
relied-upon analysis,
found
“[b]ecause
potential for unbalanced allele dot intensities and the limitations
for detecting
samples
some mixed
containing equivalent amounts
DNA,
caution should be
interpreting
exercised when
evidentia-
ry samples
potentially may
be
more than one donor.”
from
added).
Study, supra,
F.B.I.
40 J. Forensic
(emphasis
Sci. at 52
study,
That
undertaken
determine “the limitations of the use of
test,”
new [polymarker]
[the]
id. at
thus found that even
interpretations of
simple presence
or absence of alleles should
proceed cautiously when
samples
mixed
are
involved.
exercis-
caution,
ing that
the F.B.I.
any
did
draw
dot-
conclusions from
intensity
study
imbalances. The
found
even
imbalances
supposed
existed where none were
fig.
to exist.12 Id. at 48-49 &
4.
11
admitting
testing
vein,
In a similar
the first New
case
PCR
relied on
Jersey
testing
testimony,
Williams,
Dr. Edward Blake.
expertise,
procedures
960;
Dishon,
at
A.2d
supra,
see also
N.J.Super.
supra,
(discussing
testing).
N.J.Super. resoundingly consultant for the defense this case. He criticized the State's analysis. percentage The F.B.I. was unable to determine the test runs afdicted with unbalanced dots "because determination of unbalanced is some- intensity subjective.” what Ibid. *114 study (only format only prepublication in at available
The other below) dot-intensity hearing did not conclude time of the the warrant its use in an actual analysis sufficiently reliable to was Fildes, Herrin, Rebecca George Nicola & See criminal case. System DNA on Reynolds, AmpliType the PM Test Evaluation of 1247, 1251(Sept.1994). Samples, Sci. 39 J. Forensic Forensic Case study reasoning conclusion of the not the or That does bolster of Ante majority’s citation it. at majority, despite the extended 182-183, proposi at The article does state the 699 A.2d 627-628. marker the of the HBGG reveals tion that when an examination (from A, B, sample in a two the and C allele mixed presence of contributors) A,A, genotype known contributor is we and when the B,C. suspect genotype is Such a conclusion can conclude that determining testing for accepted tenet presumed from alleles, simple use subtrac and the of presence or absence of present, that if all three alleles are and principle tion that dictates allele, type other victim contributed one of two if the suspect. from the The conclusion does not alleles must have come is, involve, on, analysis dot-intensity depend or validate —that or from attempt presence of extra additional alleles infer already present. need intensity “quantity” of alleles One or intensity to reach that conclusion. That look to the of dots method, however, analysis not the that Cellmark accepted was performed the markers this on case. study by done majority’s
The use of initial State’s work and six other laboratories and the validation Roche misguided. little to with Those studies had do dot- Cellmark most, intensity analysis. At the studies found that unbalanced determining the could “a asset” for existence dots be valuable Reynolds, supra, & 40 J. Forensic Sci 285. mixture. Fildes however, study, validity approach, not test the nor did presence could suggest specific it even that the alleles be did publication by examining dot intensities. The conclud- determined casework potential sample for mixtures forensic “[t]he ed always thoughtful interpretation. analysis required has careful policies develop will need to their own for Individual laboratories *115 interpretation of mixtures experience based on their and case history information.” Id. at suggest 284. The article does any policy that for interpreting developed, mixtures has been reliable, scientifically general or has earned acceptance.
Although the Court asserts developed that Cellmark has such policies mixtures, interpret to ante at 699 A.2d at conclusion, Court does not indicate how it reached that and it cites to authority no that would acceptance reliability. evidence its or Nothing in diagnostic Cellmark’s own exhaustive manual considers application dot-intensity analysis interpret of to mixtures. fact, noting in suggests the record that developed Cellmark had Rather, policies. only such the manual polymarker states that the positive negative test results either testing strips, are or on the indicating presence of particular or absence a allele. Cellmark Diagnostics, Interpretation Results, DQa supra, Test at 1. of HLA nothing
There is in suggest the entire literature or record to polymarker that anything kit do identify test can than more potentially alleles and show that a mixture in exists certain Certainly, circumstances. no evidence a indicates that determina presence tion of the relative of reliably different alleles consistently be examining polymarker can made testing strips sample. Indeed, from a mixed we in as noted a different context during case, our original review of this the State not provide “did anyone community [for evidence in which] the scientific than other I, expert] [the Harvey State’s supra, [her]self vouche[d]....” N.J. at 581 A.2d is simply nothing 483. There in the record suggest any to scientist has ever in fact undertaken dot- intensity analysis successfully makeup to determine the allele of to a sample. donors mixed majority post-trial publications
The also on relies “en as hancing] acceptance dot-intensity analysis.” of Ante at post-trial A.2d at 627. publications Whether extra-record can support later, be on general acceptance relied is discussed see 177-181, 625-626, at 699 A .2d at but even the few relevant infra post-trial publications not support do the Court’s conclusion. The analysis, dot-intensity Report, line in one devoted
NRC cases, it might possible some be merely that “[i]n states to mixture genetic profiles the contributors distinguish the of typing.” in ... dots in a dot-blot intensities of from differences added). (emphasis panel indicat Report, supra, NRC worthy might marginally-helpful step that it was ed be certainly suggest investigation; did not further scientists dot-intensity analysis any sense reliable and admissible virtually court, though they for the admission of advocated currently being every type analysis undertaken. other DNA study, performed years after the publication and Dr. Word’s own “[bjased here, simply admission concludes that on the evidence readily studies, expected kit can to detect these the PM be *116 listed ... and the DNA that within the criteria mixtures of fall a linear that dot intensities are support studies the notion relative copies each function of the number of of alleles contributed Word, Sawosik, Teryl J. individual in the mixture.” Charlotte M. Twenty- Bing, Summary Studies & David H. Validation of from and in the United States Canada on Six Forensic Laboratories Typing AmpliType Amplification PM and the Use PCR of 1997) Kit, 39, (forthcoming (emphasis 42 J. Forensic Sci. added). testimony No was adduced here about whether criteria,” mixture nor Dr. “notion” within the does Word’s “fall[s] dot-intensity analysis finding general equate with a of about fact, conclusion, merely acceptance. In in her Dr. Word stated dot-intensity supported finding she obtained that that data Noticeably analysis detect mixtures. Ibid. absent from her could any dot-intensity analysis that could conclusion was statement effectively reliably interpret mixtures. and
Nevertheless,
dot-intensity
majority,
concluding that
rely
analysis
generally accepted, appears
is
on
literature’s
ambiguous
testing might theo
assertions that such
tentative and
181,
retically
(noting
at
possible. E.g., ante at
699 A.2d
be
dot-intensity analysis”
“[n]ot
that
that “three articles discuss
and
unreliable,”
dot-intensity
ignoring
analysis is
but
one states that
single
judicial opinion
or
that dot-
fact that not a
article
states
reliable);
181,
intensity analysis is
ante at
C. determining dot-intensity analysis sufficiently whether *117 general acceptance, by rehable to warrant we its can be informed application its in this this case. The evidence adduced in case dot-intensity analysis yield that not discloses does consistent re- Moreover, argues sults. to the extent that the State that it is rehable, consistently results would the obtained be inconsistent being with defendant the murderer.
Dr. the sample boxspring Word testified that from the contained 2 4 DQ-Alpha the and the allele for the marker. She also noted “2,4” sample that the victim’s DNA revealed that the victim had genotype DQ-Alpha for the marker. She further testified that 262 “fairly, DQ-Alpha strip were on test
the dot intensities the dot-intensity analysis according to roughly indicating, the equal,” theorem, roughly equal present 2 4 were the and the alleles that so, DQ-Alpha genotype being the That and victim’s amounts. “2,4,” suspect’s genotype also to be being expect would the we “2,4.” Cellmark, however, genotype that defendant’s determined “4,4.” is (“2,4”) defen- sample
If the the victim’s blood and contained (“4,4”), signifi- intensity the of the “4” dot should be dant’s blood intensity of “2” dot if the dot- cantly than the stronger the Dot-intensity intensity not case. is valid. That was theorem possible as analysis apparently foreclose defendant thus would found at scene. to the blood mixture contributor majority appears about that contradiction. The unconcerned discussion of the First it record contains no *118 (D.N.H.1997) (noting polymarker testing that the kit utilized in amplifies this polymarker DQ-Alpha case the loci well as as the locus); Herrin, Fildes, Reynolds, supra, & 39 J. Sci. at Forensic (noting AmpliType the amplification PM PCR typing amplified polymarkers kit five DQ-Alpha the and the marker). It polymarker strips is the testing that the State and majority argue capable showing significant the are dot imba- valid, dot-intensity analysis lances. For analysis to be the must polymarker strip DQ work on the Alpha and with the blots dot on strip. explanation There is no in record or the the literature why particular as to the this any results for marker would be less polymarker conclusive than for the five markers. dilemma,
Recognizing majority digs up then extra- authority why dot-intensity record for may differences irrele be 179-180, vant DQ-Alpha probes. on the Ante at at 625- A.2d Amazingly, majority authority 626. questioning reads the as dot-intensity analysis the DQ-Alpha probe, yet on it uses almost same ambiguous exact authorities and language same support its dot-intensity analysis claim that polymarker on the generally accepted. loci is For example, strongest support for accuracy dot-intensity analysis any loci—comes from a —on study probes. Blake, on DQ-Alpha done Edward See Jennifer Mihalovih, Walsh, Higuchi, Henry Erlich, Russell Polym Sean & (PCR) Amplification erase Chain Reaction and Human Leuko cyte Antigen (HLA)-DQa Oligonucleotide Biological Typing on Samples: Experience, Evidence Casework 37 J. Forensic Sci. 700 (1992). study DQ-Alpha That that with testing, *119 polymarker the markers themselves testing strips for
Other analysis subjective and not work dot-intensity is does that indicate revealed testing of the HBGG marker properly. polymarker possible for sample all three alleles boxspring the mixed had that A, B, Cooper that Dr. Word and Ms. testified that marker: and C. “roughly alleles dot-intensity that the three were the test revealed mixture intensity.” Assuming the and of the “same balanced” (an assumption true only individuals that must be came from two work) assuming mixture analysis to and that the for the State’s (another from each individual roughly equal contains amounts possible geno- is required assumption), there no combination equal the three types that have resulted in amounts of would (with fact, if In blood HBGG different alleles.13 defendant’s (with “A,C”) genotype genotype and victim’s blood HBGG mixture, “B,B”) analysts that dot-intensity would assume were in a brighter testing strip. It not. B dot be on the would possible apparent inconsistency for is that explanation One that (where composing geno- homozygous genotypes the two alleles same) up strips having type may test as are the show on the However, intensity single speculative alleles. even that same as suffers, logic of explanation polymarker it defies the because homozygous testing, genotypes (including separates which ones). event, any explanation In that has been cast into doubt study homozygous profile that “the dot of a a showed allele profile.” heterozygote F.B.I. more intense than the dots a added). Study, supra, (emphasis There- 40 J. Forensic Sci. at involve all three alleles are: The six combinations would found possible (6) (3) (4) (5) (1) (2) "AB, CC”; "AC, BC”; "AA, BC”; "AB, BC”; AC”; "AB, (3) (1) "AC, BB.” and have more A alleles than B or C alleles. Genotype pairs (6) (2) more B than A or C and have alleles alleles. Genotype Genotype pairs (4) (5) have more C alleles than A or B alleles. none of pairs possible roughly are alleles amounts. combinations present equal testified that could be The fact Dr. Word "the combinations possible 166; raises BC, CC, BB,” AA and AB and or AC and ante at A.2d at No can serious abut the of her one accuracy testimony. seriously questions that there six —not combinations. doubt exist possible three — fore, polymarker the results of the test for the HBGG marker brighter B dot than the A and should have shown a that was C part dots if defendant’s was a of the mixture. The test did blood Court, part, for not show that result. The its continues disregard reliability the fact that such results undermine admissibility dot-intensity analysis.14 hence the problems dot-intensity Other results also indicate the with (which individual, know, analysis. togeth- Each we has two alleles Therefore, particular if compose genotype) er for each marker. analyzed using sample of DNA extracted and the described were *120 correct, testing procedures, dot-intensity and if the thesis is a reveal, sample composed just on one individual’s DNA should examined, being equal the marker dot intensities for the alleles of words, person. person’s sample In that other a DNA had the A,B genotype equal for the GYPA marker should show dot for A and B and intensities alleles should be blank for the C That in allele dot. so this case. State, sample, experts
On defendant’s both for the Dr. Word intensity Cooper, possible and Ms. admitted that a “[t]here’s difference ... with GYPA” and that A is somewhat “[the dot] “variance,” stated, darker than B.” That is a Dr. Word one, particularly among common African Americans. That “vari ance,” any opts such variances that the State other here, acknowledge, may explain but the result obtained the vari destroy integrity dot-intensity analysis.15 ances To the degree naturally occurring in that there are variances dot intensi 14Instead, the Court reserves discussion of the issue for relief post-conviction proceedings. 180-182, at 626-627. Ante at 699 A.2d 15Although noting case, it outside the record in this is worth completely State, trial in this a trial court refused to admit evidence of different capital test because the defendant had shown that variances occur not polymarker at See David No. 93- loci, at the GYPA but also the GC loci. State v. Cooper, (trial 10-01627 court's of DNA unpublished opinion captioned "Admissibility Evidence”), at 19-20. No such evidence was here. presented dot-intensity analysis, prior to the predicted ties that cannot be disintegrates a reliable and useful test. analysis as problem. The GYPA example A real-life demonstrates sample A dot as darker than mixed showed the results from the Schnaps’s at the C dot. Ms. B and show no color reaction dot A,A. marker to be genotype for the GYPA sample showed her genotype Thus, sample could be either contributor to the the other A,B B,B. A than the the fact that the dot was darker or Based on suspect sample, concluded that the must B mixed the State on the A,B, A B dots on the otherwise the genotype because be intensity. point is equal sample would have been mixed variances, at the marker that like the one GYPA simply that strip brighter than the B to be caused the A dot on defendant’s dot, example, if A for the analysis. Taking that dots upset the B when more intense than dots even marker are sometimes GYPA (as present B are must have equal amounts of the A and alleles sample), suspect then the unbalanced been true defendant’s B,B. A,B genotype possibilities or Both have had either here could (Ms. A,A reveal, Schnaps’s), a genotype an could when mixed with Hence, dot-intensity analysis A than B dot. more intense dot analy- are factored into the unless somehow the variances useless fact, not accounted for here. State sis. were Variances A,B suspect genotype must have GYPA concluded —a marker, that, is not due to the variance this exact result *121 necessarily accurate.16 knowing example problems the with not
The
also demonstrates
person
to the
precise amounts of DNA that each
contributed
than
If the victim’s blood was
heavier concentration
mixture.
16
argued
although recognizing
that "variances ...
Court,
that defendant
integrity
A.2d at
ante at
699
dot-intensity analysis,”
destroyed
argument.
Indeed,
Court
reaffirms that
625, never addresses the
merely
anomalous dot intensities. Ante
variances,
errors,
account for the
laboratory
strange
cannot be
at 626.
because the
results
at
699 A.2d
Precisely
error
call into doubt the
accounted for
is why they
reliability
by laboratory
dot-intensity analysis.
suspect’s blood,
may
then the A dot
be more intense than the
B
sample
dot for the
regardless
mixed
suspect’s
of whether
B,B
genotype
Thus,
or
the Court’s assertion that Cellmark
AB.
ante only
made
assumptions
analysis,
two
in its
Besides the polymarker differences on the strip at marker, defendant’s possible disparity HBGG spotted was also Further, on the examining GC locus. polymarker the victim’s strips, expert the defense found a clear imbalance in the GC marker, and imbalances the control17 on the GYPA marker. total, of strips the six compared18 where dot intensities can be dot-intensity where no supposed imbalances are to exist because present amounts, the alleles are in equal two markers show clear imbalances, imbalances, two other slight markers show and two markers show no accuracy imbalance. The procedure rate of this would then hover somewhere around or fifty-percent below the range.19 testing strip Each PM helps has a control dot that the tester to tell if the PCR enhancing performed correctly. and the readings PM test itself were For to be
valid, intensity present brighter the dot of the alleles must be than the dot intensity of the control dot. compared genotype Dot being imbalances cannot be when the examined has (i.e., "B,B” "homozygous," two of the example, genotype) same alleles for Therefore, only strip because one dot on the will turn blue. out of the five PM (for markers), markers that both defendant and victim had a total of ten four homozygous compared. were and could not be improper samples We can check containing for imbalances in the single person's sample, DNA. In the mixed the State assumes that all imbalances like, are due not to variances and the but to different contributors to the mixture. noted, these, previously marker, examined, As one of the HBGG can be because logic mixture, pairs up tells us 1ypes that if two of alleles make and three present, types present alleles are equal found the three of alleles cannot be in proportion. types present One of the three of alleles must be in twice the strength results, however, 1ypes as the other two of alleles. The showed that the yet dot intensities unexplain- for all of the alleles were balanced. This is another able result. *122 unique this case. problems problems found here are dot study found similar difficulties with imbalances The F.B.I. Study, supra, F.B.I. 40 J. supposed to be none. where there were (“The samples that Forensic Sci. at 12-13 percentage exact of is difficult to determine allele dot intensities exhibit unbalanced intensity is somewhat determination of unbalanced because the dot-intensity study that the subjective.”). The F.B.I. concluded problem “none of these observa- imbalances were not a because Id. at type.” in an incorrect tions of unbalanced alleles resulted noted, however, trying to previously the F.B.I. was not 13. As samples from mixed interpret presence the relative of alleles intensity imbalances would affect the conclusions. where incorrect short, that the the imbalances did not affect the conclusions draw, willing imbalances would deconstruct F.B.I. was but such case, dot-intensity analysis sought in this which to determine presence the relative of certain alleles. accurately up problems
Dr.
summed
with dot-intensi
Shaler
system
ty testing:
in that the dot intensities are
“[It] is
flawed
[T]hey
already
can’t use
alleles to
unbalancedf.]
un[]balanced
present.”
regarding types present or not
He
derive conclusions
got
further noted that
technicians
“differences
dot
Cellmark
they’re supposed
equal
they’re
intensities when
to be
and since
starting
something
they
up
is unbalanced and
end
off with
which
something
can’t do that.” In
[Y]ou
with
which is unbalanced....
sum,
patent unreliability
dot-intensity analysis requires its
Hurd,
supra,
536-37,
exclusion. See
86 N.J.
PROSECUTOR: subjective individual, of an is a or alleles the intensity opinion dots polymarker correct? much. DR. SHALER: Pretty depending have different the individual they may So PROSECUTOR: upon
interpretations?
[*]
[*]
[*]
[*]
are reliable. Nobody
kinds of
I don’t feel these
interpretations
DR. SHALER:
undergone
abilities to make
knowledge
to test
their
a blind examination
has
my
difference decisions.
these kinds of intensity
experts,
admitted that “intensi-
also
Cooper, one of the State’s
Ms.
subjective.”
can
ty
...
be
differenee[s]
by the evidence
proof is shown
subjective nature of this
The
agree
on
laboratory
could
own
technicians
Cellmark’s
here.
analyz-
imbalanced.
intensities were
or not some dot
whether
the two techni-
boxspring, one of
ing
sample taken from the
imbalanced
dot-intensity results to be
three of the
cians found
strips
imbalances.
four of the
to show
reader found
while the other
No
strips to
imbalanced.
of the-
be
expert found five
The defense
conclusions,
the dots
accurately
those
because
assess
court can
immediately.20 With such
disappear almost
begin to
fade and
test,
subjective
cannot
admittedly
the Court
in an
gross disparities
analysis
dot-intensity
is reliable.21
conclude
rates for
the relative
introduced about
decomposition
No evidence was
degeneration
the contra-
rates may explain
allele dots. While different
different
unreliable.
even more
readings,
analysis
would render dot-intensity
they
dictory
troubling here,
subjective
particularly
nature
dot-intensity analysis
wanted to obtain
performing
what results it
the tests knew
where
laboratory
testing.
even before the
Cellmark,
to its
this novel
from
procedure
prior
genotype
and set out
defendant’s
knew
of dot-intensity analysis,
performance
D.
generally
dot-intensity analysis
presumed
if
to be
Even
were
rejected
accepted,
should
been
here because the
the evidence
have
numerous, complex, problemat
assumptions underlying it were so
ic,
potentially
substantially
it
flawed as to render
more
confusing
prejudicial
probative
specific
than
in this
context.
Cavallo,
403;
supra,
See N.J.R.E.
For the blood only persons. persons must come from two and two One of those (or (or typeable) must person), be the victim a different known suspect. and the other contributor must be the The victim’s blood suspect’s present roughly equivalent and the must blood be amounts, mixed, samples, and the two blood when must not assumptions logical interact or affect one another. Those are leaps may may justified that particular or not be situation. establish that his blood was a contributor to the Cellmark's sample. partiality original can be in its seen calculation of the odds that a would have the person same markers as those recovered from the Cellmark used defendant’s sample. original though testing markers in its calculations even its own did not establish one) (specifically, those markers were particular DQ-Alpha only ones that could have contributed to the A far better would sample. procedure have been to conduct first or to use different testers for dot-intensity analysis determining genotypes performing defendant's and for dot-intensity analysis. Here, however, validity possible it not to establish the assumptions they by the because were not even defended State. works, dot-intensity analysis
If
one must
one assumes that
case,
dot-intensity
present
conclude that in the
results ob-
sample
preclude
for
in the HBGG marker
tained
the mixed
people
sample. Dr.
possibility that
two
contributed to the
boxspring
testified that she could not tell whether the
Word
sample
more than two sources. She errone-
contained blood from
however,
ously opined,
together nicely
fit
“[t]he
dot intensities
Nevertheless,
that,
being
sources.”
she conceded
for there
two
you
probably
are
some combinations of three sources that
“[t]here
together
give
results.”
could fit
us these same
correct,
Although
analysis
assumption that the dot
her
was
her
noted,
together
previously
fit
erroneous. As
intensities
(balanced
A,
for
from the HBGG marker
dot intensities
results
alleles)
B,
comport
not
with the State’s conclusions that
and C
do
(HBGG genotype
a mixture of defendant’s DNA
blood was
(HBGG
“A,C”)
“B,B”).
genotype
See
and the victim’s DNA
164-168,
way
supra at
The State assumed that the two roughly equivalent amounts of blood and DNA. Relax- contributed ing assumption, explains result in that the anomalous HBGG actually to the suspect the contributed twice the amount of DNA findings The two contributors" is also cast in doubt "only assumption by according regarding dots, of the State faint dots on the test Those faint strips. dots the State's indicate other contributors. To the extent that the faint expert, manufacturing testing readings in the kits or are erroneous due either to defects technicians, the faint dots cast doubt on the errors by validity performance the dot-intensity analysis. sample as assumption, did the victim. The relaxation of that however, Moreover, suspect. renders other results the need to speculate only highlights assumptions the fact that the made State, necessary validity while to the dot-intensity of the analysis, suspect provably Moreover, are wrong. even alter- ing assumptions to fit the results obtained assumes defendant’s guilt, establishing guilt. assumptions, rather than his howev- er, independently must be established of the results. assumption
One other
warrants brief discussion because the
actually
problems
State
found
dot-intensity analysis
with it. For
valid,
to be
samples
one must assume that the DNA
from two
people
different
do not
together.
affect each other when mixed
But, Dr.
probe
Word admitted that relative
intensities become
presence
imbalanced
previously
variant alleles. As
noted, a variant allele
found in
was
defendant’s GYPA marker.
supra
See discussion
at 166-168 & n.
Those admissibility, bear on the merely not weight, dot-intensity analysis. A hearing full on the as- sumptions validity and the entire dot-intensity analysis should have hearing necessary been held. That explore inconsistencies in experts’ both the State’s comments actual results obtained. The uncritical admission of this evidence in capital trial remotely without even establishing validity its egregious wrong. an
E. proponent The burden is on the clearly of evidence to establish Windmere, admissibility. its supra, 105 N.J. at 522A.2d 405. Although majority recognize rule, claims see ante at continually ignores A.2d it that burden and notes evidence, that defendant challenge did not that defendant did present evidence, more favorable or that defendant based his
273 evidence, 179, 191, 178, A.2d ante at 699 conclusions on the same 626, 625, adequately or 632. fact that defendant did not at its effectively challenge does not the State of the evidence relieve clearly establishing admissibility of novel scientific burden of weigh obligation is the relieved of evidence. Nor trial court its admissibility prior to its and to determine the evidence admission. is surprising admission that this evidence
Most is the Court’s 183, Ante at A.2d at 628. Esoteric and novel “esoteric.” 699 scrutiny undergo rigorous scientific evidence should most likely least to have been is the evidence that because type of subject testing peer to the of and review that we demand evidence. all scientific fact, obligation, reviewing it is our the admission of court’s evidence, complex that such and scientific assure itself
novel
See,
accepted.
e.g., Kelly,
generally
reliable
evidence is
214,
obligation
(recognizing
364
an
supra, 97 N.J.
478 A.2d
such
acknowledging
power
the trial
has
to order
Court
hearings to
the claims
court to conduct additional
evaluate
reliability
competing experts
determine the
of the scientific
and to
evidence).
such,
a
of that
As
must undertake
de novo review
we
judicial
supplement
record
the record with
aspect of the
and can
articles,
Lindsey v.
analysis.
own
See
opinions, scientific
and our
(Colo.1995)
281,
(ruling
P.2d
that admission
People, 892
289-90
subject
novo
question
evidence
of law”
to de
novel DNA
“is
(Fla.1997)
State,
268,
review);
(holding
Brim v.
695 So.2d
ruling
subject to de novo
admitting DNA evidence is
trial court’s
than
an
and is
as a matter
law rather
review
“reviewed
167,
standard”);
Miller,
People v.
Ill.2d
abuse-of-discretion
(1996) (McMorrow,
60-62,
N.E.2d
738-40
219 Ill.Dec.
(“[T]rial
J.,
regarding the
specially concurring)
court decisions
question
technique
has achieved
of whether
scientific
threshold
community should be
general acceptance in
relevant scientific
—
denied,
U.S. -,
review.”),
117 S.Ct.
subject to de novo
cert.
State,
(1997);
331-
Taylor v.
889 P.2d
when such evidence is admitted
a criminal defendant.
165-168,
Indeed,
Ante at
Accepting post-hearing
only supports
evidence that
one side of
noted,
argument
is indefensible. As Justice McMorrow
majority
concerning
[t]he
cannot
it both
If
court
have
trial
decisions
ways.
general
of novel scientific evidence cannot be reversed absent an abuse
acceptance
of discretion,
review,
then
material which was
of the trial record
upon
part
majority
hand,
should be considered
this court.
on the other
believes
If,
that it is
on scientific articles and court cases which were not
proper
rely
part
the trial record to determine whether a novel scientific
has become
technique
generally
majority
in the relevant scientific
then the
must
community,
accepted
acknowledge that
the standard of
is not a
review
abuse
discretion
simple
standard.
Ill.Dec,
(McMorrow,
[Miller,
at
III
prevented
The trial court
effectively challenging
defendant from
reliability
polymarker testing procedure
both the
and Dr.
theory regarding dot-intensity analysis. Specifically,
Word’s
permit
court did not
defendant
experts
to examine the scientific
on
Cellmark’s
testimony
validation studies or to elicit
from defen
expert
study.
dant’s own
on the F.B.I.
Cellmark’s validation
study
Cellmark,
laboratory
showed that not even
responsible
performing
prosecution’s
for
testing,
DNA
conducted tests on
reliability
accuracy
or
dot-intensity analysis.
See
161-168,
supra
discussion
study
The troubling because of its previous decision to allow into dot-intensity evidence the “esoteric” much, analysis any, support without if from the scientific commu nity. majority The reasons that all of complaints defendant’s
277
dot-intensity analysis
about
admissibility,
“concern not the
but the
weight
of the evidence.” Ante at
Despite
The decision to placed sanction the limitations on the subjects examination into these any is not reasonable under experts dispute circumstances. The fact that particular whether a technique gained general scientific has acceptance is relevant and evidence, material not to the admission of the but also to the weight jury evidence, that the should attach to the if even technique in question is found admissible.
Admissibility
weight
may overlap.
scientific evidence
repeatedly
This
general
Court
has
acceptance
noted
does not
acceptance.
Windmere,
mean
E.g.,
unanimous
supra,
Div.),
122
comes
while
tying
important
evidence was an
link
defendant to the crime.”
dot-intensity analysis
Ante at
The was used the State to narrow drastically the number of individuals who could have contributed to the blood technique permitted mixture found at the scene. The argue the percent State to that far less than population one of the types had the of DNA (Actually, markers found at the scene. as evident, erroneously argued only will become the State one 1,400 persons out of had figure, those markers. The correct according to the expert, using dot-intensity State’s own even inclusive.) analysis, dot-intensity analysis, is far more Without at percent least ten of population the African-American could have contributed to the blood found at the scene.23 majority
The
finds
jury
the error harmless because “the
knew
questioned
validity
that some
dot-intensity analy
scientists
the
of
sis.” Ante
Diagnostics, accepted the scientists) (undertaken by experienced lends no study six forensic dot-intensity flatly assumptions support to and contradicts fact, any study supported analysis. has dot- no scientist jurors possess that information. intensity analysis. The did not known, rejected speculative, they they may have as Had well unreliable, technique used the State. unsupported, and rejected, genetic a conviction would have Had the evidence been improbable. been unjust “clearly producing an capable result”
Errors
are
Where,
here,
objects
party
as
demand reversal. R. 2:10-2.
*132
evidence,
introducing
ruling
precluded
and is
from
material
the
sufficiency
“to
doubt
the test is the
of the error
raise
reasonable
jury
might
to a
it
as to whether the error led the
result
otherwise
Macon,
325, 336,
57
A.2d 1
not have reached.” State v.
N.J.
273
(1988)
(1971);
45, 94,
Bey, 112
A.2d
see also State v.
N.J.
846
I) (“[T]he
(Bey
inquiry
whether the error contributed to
concerns
sentence.”). Here,
or the
the evidence of defendant’s
the verdict
Tirone,
guilt
clearly
“overwhelming.”
v.
64 N.J.
State
Cf.
(1974)
(finding
capable
having
study
mixture and is
is
neglected to mention in what circumstances such
discussion
only
and Dr.
fact,
"sometimes
supra
Cellmark
Word,
impossible
161-163,
possible" even when there are
the State's own
did
not stand
when there are more than two contributors.
IV dot-intensity The analysis State used the results of to narrow the class of individuals who could have contributed to the blood quantification found at the scene. The and definition of that class testing. is critical in forensic persuasiveness DNA of DNA testing simply is not to determine whether a defendant can be persons included or excluded from the having class of the same genetic scene, markers as the DNA recovered from the but also to determine the size of the class of sharing individuals those mark- percentage population ers. From the of the having certain DNA markers, probable improbable one can determine how or it is that the defendant’s blood was the By blood found at the scene. creating population-frequency analyzing database and then results, testing percentage DNA can reveal the of individuals who particular genetic State, here, share a marker. The went even further. percentage The State determined the of individuals having analyzed each of the six polymarker markers in the DQ-Alpha testing multiplied and then together the results ostensi- bly percentage to reveal population sharing all six of the 1,400 markers. The State asserted that one in African- genetic Americans shared the markers of the blood found at the figure wrong; analysis scene. The State’s is misleading, flawed, and unreliable. The entire statistical im- evidence was properly hearing. admitted without foundation and without a
A. Word, scientist, genetic frequency Dr. testified about data and frequency Frequency by testing calculations. data was obtained population groups certain determining and how often the different genotypes DQ-Alpha for the polymarker and the five markers Frequency occur. performed by multiplying calculations are then tions); (1995) (Handler, Harris, 525, 580, State v. 141 N.J. J., A.2d 333 concurring dissenting part) (noting jurisdictions recognize in and in part doubt"). "residual frequencies together. particu- if a genotypes
the of the various So genotype present twenty percent in polymarker lar marker is population polymarker genotype a different marker the and by twenty present fifty percent population, multiplying in percent by fifty percent, conclude that ten Cellmark would genotype two markers. percent population shares those “product This is called the rule.” calculation case, In this used data from its Cellmark collected own laborato- ry laboratory. came “from and from Roche Cellmark’s database laboratory paternity individuals in our and ... from casework samples.” compiled separate blood Cellmark databases for Cau- con- casians and for African-Americans. Cellmark’s database African-Americans, fifty tained Roche’s contained 100.
Applying types rule to product markers defendant (the genotypes DQ- possessed polymarker five marker and the Alpha Cooper Dr. and that defen- genotype), Word Ms. concluded 1,400 particular by one in genotypes dant’s were shared African- data, Using figure excluding Americans. Cellmark’s own but marker, the DQ-Alpha product approxi- for the rule reveals that mately one in 170 African-Americans would defendant’s share genotypes polymarker five for the markers. using dot-intensity analysis possible to limit
Without Blake, genotypes, experts, product Dr. one of defendant’s used the sharing population rule to limit the African-American the sus- forty-seven. pect’s DNA characteristics to Dr. one Word analysis “totally admitted that Dr. Blake’s was correct if one ignore[s] [dot-]intensity differences.”
B. one-in-1,400 figure up plainly held the State is summation, wrong. simply misleading and encour- State aged jury product jurors to use the asserted rule and that the 1,400 only one should conclude that African-Americans had the type same DNA as that found at the crime scene: “That is excluding ninety-nine people three one thousand hundred
283 from, that sample,[26] ninety-nine point That’s excluded over seven ... of population (emphasis three the entire of the world.”27 added).
Although the State was correct DNA defendant had that type, wrong State is asserting the flat out in the blood “4,4” from DQ-Alpha genotype. recovered the scene revealed the one-in-1,400 get figure, To the dot-intensity the relied on State “4,4” analysis. Finding DQ-Alpha genotype the in present be African-Americans,28 “B,B” 11.9% of the present LDLR to be in prosecutor previously explained sample having The had this as been the boxspring prosecutor's from at mixture taken the the crime The scene. error in stating testing calculation relates back to his earlier error in that Cellmark's of "4,4” boxspring sample suspect DQ Alpha genotype: the the revealed that had boxspring up the [sic] "Tested [Ms. matress and came with DNA that Cooper Diagnostics] at Cellmark believed mixture was a from two different sources. used, Initially they put up Cooper Alpha strip DQ do —I the chart here Ms. four, here, four, type up and come back with a of four and I marked that four. percentage people population, She indicated the of the the entire four, four, population, percent. that have that is 17 you percent population just can So exclude 83 from the entire of the world by Alpha.” DQ fact, "4,4" testing suspect genotype, the the revealed that had either a "2,4" "2,2” genotype, genotype. percent” or a One could not "exclude 83 of population having sample.
the
from
contributed to the
27 majority incorrectly
prosecution
present
"[t]he
states that
did
figure
prove
percentage
genetic
one-in-1400
of African Americans whose
compositions
comparable
Alpha profile
PM/DQ
could be
with the
the box-
spring sample.”
majority
Ante at
A.2d at
Even if the
were
632.
correct,
above-quoted
prosecutor flatly
which the
statement
shows not to
1,400
case,
285-286,
figure
be
the one
would be
See
irrelevant.
at
infra
56% of GYPA 45%, 27%, “A,B” “A,C” present to in the be the HBGG in D7S8 “A,B” in 17% of African- genotype present to be and the GC 1,400 Americans, in African- the concluded that one State genotypes. The State’s calculations were shared those Americans = (.119 0.0006882, x x x x in x .27 .17 which .56 .50 .45 correct 1/1,458). However, figures assuming the were equals turn even accurate, calculations were flawed. entirely the State’s State, figures, found 11.9% of relying The on Cellmark’s “4,4” DQ-Alpha the marker. Defendant African-Americans have However, “4,4” found marker. the blood at the DQ-Alpha has the DQ-Alpha from with marker that could have come someone scene “4,4.” earlier, “2,2” (Indeed, “2,4” or or as discussed was either dot-intensity analysis, using at the supra see at A.2d “2,4” DQ-Alpha geno expect suspect to have the one would the type.) recognized suspect contributing that the Even Cellmark “2,2” genotype DQ-Alpha the mixture must have a of either or “2,4” Word, “4,4.” Diagnostics, from Dr. Cellmark or Letter (Oct. Therefore, Corbin, Prosecutor, 18,1994). Mr. Assistant at 3 Cellmark, one-in-1,400 although originally providing the even numbers, figure, response by in criticisms the revised its the defense, experts. two The numbers Cellmark were revised from type the as in 170 African-Americans shared blood found one from (assuming type at scene the blood was a mixture two the victim). individuals, being suspect being one Id. one and at 5 single subgroup); NRC of see also maximum rate allele's any presence Report, (discussing ceiling principles). at 35-36 supra, figure majority suggests that the is somewhat above the The correct approxi- figure could one in 666 that the defendant calculated be the appropriate mately majority of the one in Ante at 699 A.2d 632. The fails to 1,400. instead figure advocating but rather realize that the defense was not the one-in-666 figure. using event, if it to demonstrate the the State's the one- fallacy any misleading misleading figure is it is in a manner that in-666 any way, helps percentage even the State. The defense's calculation did not include genotype percentage that, "2,2" who share even individuals DQ-Alpha —a State just using The was not content with figure the one-in-170 improperly rejected one-in-1,400 used the and figure. flawed figure wrong That is it on DQ-Alpha because was based “4,4” genotype of being instead of based on three DQ-Alpha genotypes that suspect’s. By Cellmark could admitted be using only “4,4” figure genotype, for the all the State was calculating population Harvey’s was the that shared DNA mark- calculating percentage ers. State was popula- tion that shared the DNA markers blood found at the scene suspect’s. It figure identified as the is this latter *136 relevant.30 one-in-1,400 majority
The the figure finds material because described, the one-in-1400 evidence was relevant to show “Mo relatively composite that defendant’s genotype rare could be not by PM/DQ Alpha excluded the tests as a to contributor the box- sample.” spring majority’s Ante at A.2d at 632. The reasoning “relatively is not sound. The fact that defendant had a composite genotype” anywhere rare fact not established in the —a jury majority’s record —does not inform the one bit. the Under reasoning, exceedingly if genotype only an in rare is found one person in sample the world and if the recovered from the crime scene was determined to contain alleles that could be in found virtually State, everyone including in the person, world that the according to majority, highlight the able would be to how rare that person’s likely blood is to show that it is somehow more that that majority's analysis, the should have been included. No at evidence was adduced concerning figure trial what that was. The "[i]t Court's conclusion that is too proceeding the late in for defendant insist that the State should have presented statistical that now evidence defendant believes would have been trial," helpful Defendant, being ante at 699 A.2d at is not tenable. death, every right sentenced to has to demand that the State's statistics be reliable. calculations, Excluding DQ-Alpha population frequency the in from the one 173 African-Americans would share the other five DNA with markers defendant. importantly, (defendant being More in one 173 African-Americans one them) would share the DNAmarkers of the blood found at the scene. sample. fact that common The
person’s blood contributed the likely it more genotype a “rare” does make the defendant had he, fit genotype common who also that rather than someone with a sample. Re profile, DNA contributed to the The National the recognized type of error prevalence the this source Council has the emphasized “[u]sually subgroup to which and has irrelevant, suspect belongs we want to calculate since suspect is assumption of match on the probability by NRC DNA was left someone else.” innocent the evidence is,” supra, question according “The to the Report, proper at 29. NRC, randomly probability person, chosen “What is the genetic profile has of the evidence suspect, other than the calculations, is, probability expert’s own DNA?” State’s than in 170. no more one
C.
figures
calculating
Even had the
used
correct
in
State
could
material
people
number
who
have contributed
the DNA
scene,
product
at the
the use of
unmodified
rule
found
making
unmodi-
those calculations was erroneous. The use of the
calculating
frequencies
product
population
from DNA
fied
rule
unsupported by
legal
loci is
the scientific and
authorities.
product
clearly generally accepted
rule is
as an
While
*137
product
proposition,
accurate theoretical
the issue is whether the
Cauthron,
frequencies.
individual
applied
rule can be
to
DNA
See
regard
DNA
supra,
(holding
P.2d at cited in at 336 12. in n. example is that the indepen characteristics observed were not product reliable, admissible, dent. For rule calculations to be and relevant, proponent must evidence establish the inde pendence of the in variables used the calculation. importance independence
Because of the establishing of variables, every cases, virtually published one of the 100 or so including State, three from cases this that have discussed application rule’s DNA analysis hearing have included independence examine test the of the variables. cases These are far from in unanimous their conclusions. The reason behind differing simple: long raging results A debate has been community legal application the scientific and over the product analysis. 25-36, supra, rule to DNA Report, See NRC 89-204. the National Research its report Council issued first
the evaluation of forensic DNA evidence. The NRC concluded reliable, random, if the variables —even on based and suffi- ciently large fully samples independent. Specifically, —were “Hardy- the NRC concluded that the variables were neither Weinberg Equilibrium” “Linkage nor in Equilibrium.” Without overly getting about principles detailed the scientific behind Har- dy-Weinberg Linkage Equilibrium, purposes for our it is *138 mating completely say population that because is
sufficient random, may fre- subpopulations have different because different alleles, population of different quencies of certain and because rule, structures, product into account which takes the unmodified recently may reliable. This was phenomena, of these not be none by court: made clear one federal ... if of allele can be the estimate The rule product applied reliably in accurate the conditions approxi- and reasonably population frequencies Hardy-Weinberg linkage are as and mate what known equilibrium equilibrium____ linkage Hardy-Weinberg are in real and attained equilibrium equilibrium rarely significantly and contain real are finite most because populations populations, mating. Accordingly, subgroups about non-random debate are perpetuated rule can be used often focuses on the of
whether the product reliably power Hardy-Weinberg from used to detect deviations equilibrium statistical methods linkage used to account and and the of the measures that are equilibrium adequacy for deviations. potential [Shea, 336-37.] supra, F.Supp. Thus, determining of has been over the method debate product from rule. the size of the deviations deviations and Finding principles equilibrium violated that the two were accurate, entirely many being were not the databases used “ceiling princi report NRC the use of the 1992 recommended ceiling calculating frequencies ple” principle” or the “interim essentially provided principles be used courtrooms. These population frequencies assuming limit lower of the overall even 35-36, Report, supra, at equilibrium violations of the rules. See NRC 156-59.
Although accept ceiling principles, came some courts rapidly advocating under for their use. NRC found itself attack overly that the complained rules were conservative Scientists product use rules recommended instead the of different modified By power population that would not so dilute the statistics. advocating ceiling year, the had abandoned for the last NRC however, NRC, reject Id. The has continued to principles. at 35. product provided an unmodified rule and has instead several provide formulas all of which conservative estimates alternative adjustment frequencies. product to the profile recommended analysis is the rule that is to the conducted here relevant DNA
289 (‘We adjustment. Id. that, at faetor-of-ten 34 conclude when used, probability several loci are aof coincidental match very properly small and that probabilities calculated match are (“[T]he id. at 156 way.”); correct within a factor of 10 about either (at uncertainty adequate of a from value calculated databases least persons) by product several hundred rule is within a factor of value.”). about 10 above Applying and below the true such product modified rule to in many the data this case reveals that as may people as one in seventeen share the DNA of characteristics the blood found at the scene. of widespread acceptance
Because
of the deficiencies with
product
genetic
calculating
profile
rule in
frequencies,
the vast
majority
permitted only
of courts have
modified versions
See,
Shea,
e.g.,
supra,
F.Supp.
product rule to be
admitted.
957
at
(holding
product
341-43
rule is
reliable and admissible
Daubert
under
if
the rule is modified
for likely
to account
uncer
by
error;
tainties
population substructuring
caused
and random
allowing product
recommended
using
rule when calculated
NRC’s
value); Lowe,
supra,
F.Supp.
factor of
ten estimated
954
407-08
rule,
(finding
product
calculations,
modified
using
factor of ten
Johnson,
admissible);
v.
329,
State
186 Ariz.
to be
N.E.2d
314-16
estimates
Cell
admissible;
agreement
ceiling
noting
in dicta
with
mark to be
Curnin,
v.
565 N.E.2d
principles); Commonwealth
Mass.
(1991)
analysis
being
as not
(rejecting
probability
Cellmark’s
Bloom,
time);
generally accepted
v.
Because the never of the State established indeed, product in its rule loci used because the State calculation — possibly independence cannot establish the total of the loci—the product unmodified rule calculations used to convict defen- here improperly dant were admitted.
D. figures misleading way. popula- The are The State’s another population. samples, tion numbers are based on not on the entire Therefore, figures represent frequency not the with which the that, actually frequency genotypes population, occur but the expect degree samples, based on the we would with a reasonable certainty genotypes might samples, occur. The even accurate, yet Cellmark’s are prosecutor calculations not 100% presented them as such.
We do not even need a statistician to inform us
small
samples
represent
certainty,
do not
population.
the actual
At
best, assuming
large
random,
sufficiently
the database was
it
may
sampling
us,
an
population,
permitting
be
accurate
of the
thus
degree
confidence,
with a reasonable
predict
the actual
frequencies
population
within the
as a whole. See State v. Mar
shall,
109, 211-12,
(1992) (Marshall II)
130 N.J.
A.2d
(discussing
sampling
noting
statistical
that statisticians would
expect the actual
sample by
results
differ from the
standard
denied,
deviations),
1306, 122
cert.
507 U.S.
113 S.Ct.
L.Ed.2d
I,
(1993);
Harvey
supra,
The databases here neither large enough used were random nor *141 sampling be an accurate of population, the even to a reasonable degree certainty. Council, of The National Resource the perhaps impressive most for population- advocate the introduction DNA of cases, frequency in adequate statistics criminal that “an concluded database at persons.” Report, [has] least several hundred NRC added); supra, Lowe, (emphasis 33 supra, F.Supp. see also 954 at (noting n. government’s 409-10 & 10 that experts even the testi fied an adequate that had database at least several hundred persons). poly- African-American Cellmark’s database for the fifty only people just marker markers contained and Roche’s 100 Moreover, people. random, larger if the databases are not a sample required. Roche’s, usually nothing size is We know about certainly but Cellmark’s was not random. Dr. Word admitted 292 part in on “individuals in our labora the database was based
that
laboratory.
tory”
paternity
already had
cases Cellmark
“selected,”
though
obviously
the criteria
group
The
used was
even
Although
selective
in that selection are unknown.
or
implicit
excused,
might
aspects
be
non-random
of a database
sometimes
here,
genes
are
or
measured
either functional
linked
where as
118-19,
genes,
Report, supra, at
functional
see NRC
with
provided.
that
confidence interval must be
It is essential
possibil
sample
truly
negate
in order to
population
be
random
ity
idiosyncratic.
the results
lack of randomness and
that
are
reliability of the
the small size inhibits the
databases.31
original
recognized
this case
that
Even in our
review of
we
figures
is on the
to show that
the statistical
it
burden
State
to tie
blood
at the scene must
presents
defendant to the
found
be
community.”
forensic-serology
in the
“considered authoritative
fact,
I,
431,
A.2d
Harvey
supra, 121
at
581
483. In
Court
N.J.
study
ground
an
an
for [the
held that
“in-house
was
insufficient
expert]
testify
[percentages matches].”
of
Id.
State’s
about
warning
very
case
Despite
E.
only speculate
exactly
can
about
how defective the State’s
We
analysis
required
court
is here because the trial
failed to hold
hearing
admissibility
majority
this
on the
evidence. The
disre
gards
previous teachings
independent
trial
our
courts have an
31
publications,
reported
The Court’s citations to two
which
statistical results
samples
only ninety-four
persons,
A.2d at
from
and 116
ante at
suggestion
samples
been
is amiss. There is no
of such small size have
found
Virgin
sufficiently reliable to be used in a criminal trial.
Government
Cf.
(D.V.I.1996)
profile
Byers,
F.Supp.
(noting that a DNA
Islands v.
small”).
event,
"quite
any
"of
those
database
Caucasians” is
studies
at least included individuals chosen at random.
*142
obligation
reliability
to ensure the
of evidence and to hold a
hearing
admissibility
on the
necessary.
when
evidence
Indeed,
today
the Court
finds that
it cannot review
issue
this
it
only
because
strikes from the record what it considers to be the
indicating
provide
intervals,
evidence
need
confidence
ante
200,
637,
at
699 A.2d at
and because it refuses to
case
remand the
Koedatich,
evidentiary
for an
on
hearing
the matter.
State v.
Cf.
225, 283,
(1988) (Koedatich I)
112 N.J.
deliberations.” 364). 209, A.2d at N.J. in circumstances recognized that certain Kelly, we also to matter to the trial court to remand the
prudent course would be acceptance testimony general of about the take additional A.2d 364 Kelly, supra, 97 N.J. at See scientific evidence. trial with a new and order a new (opting reverse conviction admissibility evidence instead of the scientific hearing on the remand, re recognizing limited the Court ordering but a trial ... to the ordering “a limited remand option tained the discretion, discretion, very on its broad court to exercise reliability of the knowl qualifications and the expert’s of the issue edge proffered”). majority’s disregard for our is remarkable is
What
requir
recognize that the reasons for
its refusal to
precedent, but
hearing in
case are much more
this
ing an antecedent foundational
Spann,
in
example,
For
compelling than in those cases.
in
in
gained acceptance, even
courts
formulation had
mathematical
validity
Here,
split
Jersey
this
courts are
on the
New
State.
product rule has
analyzing
results. The
product rule for
DNA
capital
evidence in a
rejected in the context of DNA
even been
(“I
supra, at 23
Cooper
Opinion,
DNA
in this
See
case
State.
used, specifi
of statistical calculation
further find that the method
method,
generally
to be
cally
has not been shown
product
rule
Furthermore,
community.
the results
accepted in the scientific
sufficiently
product rule are not
through use of the
obtained
jury.”).
by a
into evidence for consideration
reliable to admit
here,
Jersey
one New
admission of the evidence
Subsequent to the
that takes into account
product
rule
court has endorsed modified
Marcus, supra, 294 N.J.Su
problems noted herein.
some of the
court,
284-87,
recently,
after
A
221. More
another
per. at
683 .2d
...
the statistical
lengthy Frye hearing to determine whether
“a
sufficiently
analysis
quantification of the test result
product
rule admissible.
admitted at trial” found
reliable to be
260, 281-85,
Dishon,
No
at
Requiring
reliability prior
of
establishment
to the admission
expert
testimony
of
certainly
unique
not
to DNA statistical
404,
Landrigan
Corp.,
evidence.
v. Celotex
127
605
N.J.
A.2d
(1992),
any type
testimony
1079
this
expert
Court noted
for
of
“(1)
admissible,
testimony
be
the intended
must concern a
32Some
have asserted that
rule
was endorsed
New
people
product
trial
Williams,
court in
A.2d
369,
252
599
960.
Jersey by
supra,
N.J.Super.
reading
See
However,
NRC
at 207.
a careful
of the
in that
Report, supra,
opinion
case reveals that it never
whether
addressed
statistics are scientifical
population
has, therefore,
Carter,
reliable. The
fallen under some
ly
criticism.
opinion
("An
296 (2) average juror; beyond of the
subject that is the ken matter expert’s such that an to must at a state of field testified be art. (3) reliable; must sufficiently the witness testimony could be testimony.” Id. at expertise to offer the intended have sufficient State, 413, standards of this 1079. Under the relevant 605 A.2d population-frequency data was product of the rule and admission clearly wrong. element, expertise, this Court has the third sufficient
As to
possessed
suitably qualified and
expert
that an
must “be
noted
express
expert
knowledge
[an
to be able to
specialized
sufficient
Moore,
opinion.”
v.
explain the basis of that
State
opinion] and to
Odom,
(1991);
420, 458-59,
v.
116
A.2d
see State
122
585
864
N.J.
71,
(1989);
65,
Tp.,
Hake v. Manchester
98 N.J.
The error is exacerbated here rejection the trial court’s challenge expert. defense’s to the pointed Defendant out that Supreme “[o]ne of the cheeks that the required Court has [when admitting statistical is testify. evidence] that a mathematician The State has requirement.” failed to meet that Defendant also argued that, population frequency “[t]he statistics cited in the reports State’s sufficiently are not reliable generally so as to be accepted in community.” Indeed, the scientific defense counsel that, particular case, noted “[i]n this testing the State’s laboratory perform failed to compilation population calculation of the frequency statistics without error.” arguments These meritorious rejected by were the trial virtually court and are ignored by the majority today. permitting product
In population rule and the databases to hearing be used without admissibility evidence, on the Court turns long precedent its back on the line of in this State and Worse, others. today the Court chooses to do in so a case in which question suspect and, the evidence in yet, worse where a defendant’s life is at stake.
Part Two
I
erred, understandably,
The trial court
failing
anticipate
our
Mejia,
State v.
141 N.J.
(1995).
decision
Virtually dispositive
already
of this issue is that we have
deter
actually
mined that the error committed here was
harmful.
I,
407,
Harvey
supra, 121
A.2d
N.J.
we reversed defen
provid
dant’s conviction and death sentence because
record
“[t]he
subsequently
abrogated by
That decision
has been
constitutional and statuto
Const.,
I, 12;
¶
1993).
ry
(signed May
amendments. N.J.
art.
L.
c. 111
abrogation
affects
offenses committed since the amendment’s enact
Mejia, supra,
Schnaps
ment.
1. The State’s concession that
initial intent
to commit
Harvey’s
was
not
murder;
2.
being
confession that he struck
once and in
Harvey’s
Schnaps only
response
in the
punched
nose;
argument during
3. The State’s
that some of the fifteen blows
penalty-phase
injure
inflicted
were intended to
and cause
upon Schnaps
pain,
kill;
jury’s
reject
pathologist’s
4. The
freedom to
when other evidence
testimony
indicated a lack of murderous
intent;
jury
5. The fact that the trial court
to instruct
on lesser
opted
and included
offenses which did not
murderous intent.
require
[Id. at
413-14,
483.]
A.2d
unmistakably recognized
The Court
and stated that defendant’s
“clearly
mental state was
in issue.” Id. at
The
difference between the first trial and the retrial is that
Harvey’s self-serving confession was not admitted at the retrial.
majority
The
views this
“a
as
critical distinction.” Ante at
I,
699 A.2d at
In Harvey
611.
that factor was not deemed critical.
No
why
reason is offered as to
it has become so critical now. In
fact, the difference
particularly important.
is not
All of the
pertinent
Harvey’s
facts contained in
confession were before the
jury
Indeed,
confession,
in the retrial.
in the
defendant did not
assert that he had not intended to murder
Schnaps.
Irene
majority interprets
containing
the confession as
one fact not
jury
before the
Harvey
on retrial —that
claims he struck the
only
victim
once. Ante at
bedroom where she lay.
injured
enough
him
defendant
to cause
to bleed. Defen-
victim
back,
pain
administered several
to cause
to the
dant struck
blows
presumably
ability
hurt him. Even the
victim and
to limit her
to
kill
admits that defendant still did not have the intent to
State
fact,
found,
argued,
jury
the State
and the
that the
victim.
kill,
injure
not to
to
and cause the
first blows were intended
but
theorizes,
pain.
majority uncritically
victim
The State
and the
only
an
accepts, that
after the first blows did defendant form
kill;
blows,
to
in that
instant between
he formed a new
intent
intent,
proceeded
Schnaps.
question
kill
no
Irene
There is
perpetrator
Schnaps,
certainly
person
that the
killed
but
a rational
prove beyond
could find that the State did not
a reasonable doubt
that,
blows,
moment
defendant’s intent
the brief
between
causing pain
disabling injury
causing
changed from
death.35
juror might
A
find that
remained
reasonable
defendant’s intent
bodily injury.
to cause severe
Certainly
that evidence could leave sufficient doubt
one
juror’s
“minimally adequate
mind. The evidence
least
jury
provide a reasonable basis for the
to hold a reasonable doubt
Mejia, supra, 141
that the defendant intended to cause death.”
Dixon,
308;
N.J. at
662 A.2d
see also State v.
N.J.
(1991) (“The
254,
The evidence in which the has held that the error was related cases Court 35 change responds The Court that whether or not that in mens rea occurred in 152, 612. If defendant's a brief moment "is irrelevant." Ante at 699 A.2d at moment, change certainly possible indeed, intent did not in that brief as is — inapplicable. probability probable defendant's the factor is The —then change highly intent did not to homicidal intent is relevant. assaultive
302
harmless. There is no evidence that defendant admitted or stated
any
558-60,
McDougald, supra,
intent to kill.
120
at
N.J.
577
Cf.
(noting
acknowledgement
A.2d 419
evidence of defendant’s
kill);
DiFrisco,
253,
(1990)
intent to
State v.
118 N.J.
571
914
A.2d
—
(DiFrisco I) (same),
denied,
U.S. -,
949, 133
cert.
116 S.Ct.
(1996); Pitts, supra,
614-20,
L.Ed.2d 873
Indeed,
there is more evidence here that defendant
lacked
murderous intent than
in many
there has been
of the cases where
Jackson,
this Court has found the error reversible. State v.
(1990),
Jackson,
N.J.
Another kill if defendant intended is that even not even consider already her. The victim, had killed intent after he he formed the pain. only cause meant that the first blows were asserted State have that the victim would also asserted The medical examiner could to the head. He immediately after the blows almost died her, single opined that a but he say or blows killed which blow logical possible that might sufficient. It have been blow uncon- after she fell assaulting victim even kept defendant that he fact, testified the medical examiner and died. scious exactly The medical examiner did that. that defendant believed unconscious, and probably rendered victim was stated that formed his died, or If defendant from the first blow two. perhaps Schnaps, already Irene had murdered intent after he murderous penalty. The evidence eligible the death be for he would not certainly supports possibility. contradicting majority disregard all evidence
Not
does
conclusion,
ignores
trial court’s view
it even
but
its
to be
obviously
this evidence
found
The trial court
evidence.
providing a Gerald
In addition to
ambiguous and inconclusive.
decision,
instructed
the court
required by
previous
our
charge, as
*151
jurors
aggravated
the
on the
offense of
lesser-included
reck
manslaughter.
less
Those latter offenses would
have been
jury
the
if
court
submitted to
the trial
believed that the evidence
support
finding
could
that the defendant had neither the intent
Dixon,
kill
bodily injury.
nor the intent to
serious
cause
See
255-56,
supra,
(noting
125 N.J.
The trial
provide
clearly
court’s decision to
a Gerald
was
majority suggests
correct.
charge
The
that the Gerald
was not
decision,
required by
previous
our
because in the absence of the
confession,
support
rational
no
basis existed to
it. Ante at 151-
(“In
152,
I,]...
[Harvey
predetermine
case, cases, holdings case, our in similar the facts of this and our general requirement death-penalty special warrant cases contentions, Despite majority’s consideration. a reasonable juror certainly could have concluded that defendant lacked mur- intent; therefore, derous the trial court required to instruct jury it point, need not be unanimous on this and plain failure to so instruct was error.
II
I
again
compelled
Once
feel
majority’s
dissent from the
arbitrary
contradictory finding
that the evidence adduced at
c(4)(f)
support
aggravating
trial could
factor.
2C:11-
N.J.S.A.
3c(4)(f) (permitting imposition
penalty
of the death
if the murder
detection”);
for
purpose
escaping
was “committed
see State
398-408,
(1996)
I)
Loftin,
v.
(Loftin
N.J.
A.
c(4)(f)
majority’s support
entirely
The
for the
factor
on
rests
the
signs
fact that there were
of a disturbance at
crime
the
scene.
is,
on
majority
entirety,
The evidence which
in
the
relies
its
that:
forcing
glass
Defendant
entered
door.
Schnaps’s
by
apartment
open
patio
awoke and
defendant
in
bedroom,
discovered
her
which was
Apparently Schnaps
signs
jury
with
the
room
of disturbance. The
have
could
inferred
reasonably
neighbors,
alerting
that defendant decided to kill
her from
her
Schnaps
prevent
calling
identifying
and
the
later
defendant as the
intended to rob
who
police,
person
neighbors
Indeed,
her.
when
in the
questioned by police,
apartment
complex
hearing
denied
noises from
any
apartment.
Schnaps’s
(internal
omitted).]
[Ante 225-226,
at
That trail of aimlessness, majority has im but to show that the the Court’s factor; aggravating its failure will posed limitations on the no c(4)(f) any on set of charge to factor based permit prosecutors
307 discretion, facts. is opening That limitless arbitrary the door to sentences, capricious and it is pass and “To unconstitutional. muster, capital sentencing constitutional ‘genuinely scheme must persons narrow class of eligible for the penalty death and must reasonably justify imposition of a more on severe sentence ” compared guilty defendant to others found Lowen murder.’ 244, Phelps, 231, 546, 554, v. 484 U.S. 108 S.Ct. 98 L.Ed.2d field (1988). 581 Aggravating key factors are the element to narrowing death-eligible the class of Gregg defendants. See v. Georgia, 153, 194-95, 2909, 2935, 428 U.S. 96 S.Ct. L.Ed.2d 49 (1976) 886-87 (“[Aggravating provide guidance factors] to the authority sentencing thereby and reduce the that it likelihood will impose fairly capricious arbitrary. sentence that can be called or sentencing authority required Where specify the factors decision, it upon reaching relied safeguard its the further meaningful appellate review is available to ensure death imposed capriciously manner.”); sentences are or in a freakish Ramseur, 123, 182-201, (1987). State v. 106 N.J. 188 A.2d Aggravating factors death-eligible that fail to narrow the class of persons provisions render death under sentences their unconstitutional. Gregg, supra, Cf at 428 U.S. S.Ct. . (finding although
L.Ed.2d at 890
“outrageously
or wan
tonly
aggravating
vile”
factor
be
limiting
can
construed to
no
serve
purpose,
Georgia
death-penalty scheme was not unconstitu
tional because no evidence
that the
supreme
existed
state
court
sufficiently
Ramseur,
scope
factor);
would not
limit the
supra,
197-201,
N.J. at
(noting
B. probative addition the lack of supporting evidence *154 c(4)(f) proffered by majority, argument factor only the the ad- the support in during summation prosecutor by the vanced prosecutor to which the The evidence improper. factor was was motivated theory that defendant support the pointed did not apprehension. to by an intent avoid committing murder by trial uneorrected argument went fact that the Despite the court, harmless. majority finds the error to be e(4)(f) by supported factor was argued that the prosecutor
The destroyed after the evidence concealed and that defendant the fact of the murder: commission [c(4)(f) in an committed Aggravating [“]was this murder ] additionally factor it was. Items were removed Yes, to avoid apprehension?[”] prosecution,
attempt
removed from this
but items were
Mr. Harvey,
to be stolen
kept by
bedding.
suggest
of Irene
I
The body
detection.
you
to ... prevent
apartment
locating
from
in an
[sic]
police
was washed clean
attempt
prevent
Schnappes
Mr.
offense,
that committed this
Harvey.
the individual
c(4)(f) factor,
that the
it must indicate
support the
For evidence to
to the
potential
witness
to eliminate
murder itself was “intended
I,
Each
when it finds that the court instruction. The trial the trial court’s were cured concluding The trial court’s provided no curative instruction. law, instructions, correctly stating were not made although way and in no prosecutor’s improper remarks response to the court did not inform or even cancelled them: neutralized or remarks were erroneous jury prosecutor’s that the intimate to the
309 Rather, disregarded. and were to part be lengthy charge, as of a simply jurors the court “[a]ny observed to the that evidence of by action taken the defendant to conceal the murder itself cannot prove aggravating be used to this factor.” Although in by some cases an may instruction the trial court prejudice by cure the prosecutor’s statement, done improper see I, supra, 320-23, Koedatich 112 N.J. 548 A.2d a statement law, correct, of the if even made the final instructions to the jury any without acknowledgement reference to or improper remarks is not sufficient. A charge curative should be delivered immediately objectionable after the directly action and should Zola, 384, 426, address error. See State v. 112 N.J. 548 A.2d (1988), denied, 1022 cert. 489 U.S. 109 S.Ct. (1989); I, 324-25,
L.Ed.2d 205 supra, Koedatich 112 N.J. at jurors A.2d 939. The were disregard never told to improper remarks and the comments never were withdrawn. The Court jury fully now assumes that the prosecutor’s understood that the wrong remarks account, were and were not to be taken into when court, counsel, the trial defense prosecutor and the all failed to appreciate that fact. That is a assumption drastic in view of the stakes —a solely death sentence that jury turns on whether the persuaded by would be prosecutor’s argument. light c(4)(f) both the absence of supporting substantive evidence prosecutor’s factor and the improper gravely misleading argu regarding ment factor, evidence of the aggravating sole this Court jury must infer that prosecutor’s influenced remarks, obligated and is to find the error harmful.
Ill
I also dissent
ruling
from the Court’s
points:
on several other
incomprehensible
felony-murder charge was harmless
error,
152-154,
612-613;
ante at
699 A.2d at
that the erroneous
jury charge permitting
penalty jury
guilt phase
to consider all
error,
223-225,
evidence was harmless
ante at
A. sheet, jury consider the permitted the which The verdict guilty of found defendant only if it first felony murder count murder, utterly incomprehensible plainly and death-eligible error, majority but holds the error starkly wrong. finds The be harmless. disagree; I such an error can never harmless. (1992), Purnell, 518, A.2d 175 this Court 126 N.J. 601 In State v. given jurors not been the had a death sentence because vacated noncapital of offense of opportunity to convict defendant the that: felony The Court noted murder. that all forms of homicide rationally supported by have held consistently We should be offenses, or alternative placed whether be lesser-included evidence, they jury. murder statute and thus a deny To truncate the definitions of the before the
jury
of murder has been
to decide which of the forms
proven
the mechanism
unacceptable.
[Id. at
175.]
601 A.2d
530-31,
repeatedly reiterated
this Court. See
principle has been
That
484,
(noting
capital
The Court any plausible has not advanced version “[defendant error because jury felony which the could him have convicted of murder convicting purposeful-or-knowing without him also murder.” Ante majority at A.2d at The poses 613. the incorrect issue, question. Purnell, The as this Court underscored in supra, at N.J. 601 A.2d is whether the evidence could support felony-murder charge. a As previously this Court has recognized in the context of a murder committed in course of a robbery, clearly it could: relying aggravating on as an
By robbery factor, State affirmed necessarily jury existed a basis for proofs rational to choose the death- provided ineligible finding guilty defendant option murder. To a felony deprive capital charge, arguably defendant of lesser-included alternative murder which would have affected deliberation of a death is not sentence, constitutionally permissi- ble.
[Ibid.]
acknowledges
The
jury
Court
that “the
charge
combination of the
away
and the
sheet
jury
verdict
led the
from
rendering
noncapi
murder,”
felony
tal verdict of
ante at
699 A.2d
613. To
conclude that the error was
insupportable.
harmless is
light
Court’s conclusion is even more indefensible in
case,
facts of Purnell
itself.
In that
the defendant stabbed the
chest,
neck,
Purnell,
victim
fifteen times
and abdomen.
*157
supra,
Despite
B.
incorrectly
jurors
The trial court
the penalty-phase
told
they
presented”
could consider “all the evidence
in both the
determining whether the
trial in
guilt phases of the
penalty and
majority recog-
aggravating factors. The
proven the
had
State
erroneous,
error to be
it finds the
but
charge was
nizes that
considered harmless
charge cannot be
disagree. The
I
harmless.
c(4)(f) aggravating factor.
respect
in
of the
at least
inform
trial courts must
long held that
Although this
has
Court
in their
they may use evidence
jurors
and to what extent
how
112, 133,
Erazo,
deliberations,
126 N.J.
State v.
penalty
see
123, 183,
Certainly, this error cannot be
out,
c(4)(f)
prosecutor
previously pointed
factor. As
210-212,
supra at
wrong
discussion
argued the
evidence. See
error,
majority attempts
dismissing
In
A.2d at 641-642.
“[a]ny
jury that
instruction to the
rely
the trial court’s
on
to conceal the murder
taken
the defendant
evidence of actions
Ante at
prove
aggravating
this
factor.”
used to
itself cannot be
way
the error.
That comment
no
rectified
313 support 210-212, could not be used to Supra the factor. at fact, Despite A.2d at 641-642. majority that the holds that “[t]he instructions, against background court’s when viewed the of the summation, prosecutor’s sufficiently jury informed the of the concerning aggravating evidence the factors.” Ante at A.2d at improper charge against 651. When the is “viewed the background prosecutor’s [improper misleading] summa tion,” rationally one cannot conclude that the in the charge error was harmless.
C. I, Harvey supra, In at N.J. 581 A.2d this Court took pains prosecutor advise any that at reference retrial to the hair at found the crime scene should not include the informa tion pubic the hair was a hair. The Court observed that might chest, head, “[w]hether it have from come his his or his pubis is allegations irrelevant the absence of of a sexual encounter. retrial prosecution On should refrain from refer ” ring ‘pubic to the as a Despite hair hair.’ Ibid. warning, prosecutor elicited investigator pubic comments from his that “a victim, hair control” was taken from investigator and the testified that he had “[p]ubie sample also obtained hair from the sus—’’before he was interrupted. Although the Court claims that “[t]he State never in Schnaps’s characterized the hair found apartment public hair,” 646, I as a at ante A.2d credit jury being logical with able to draw inference that if the public State obtained hair from samples the victim and the sus pect, then comparison the State intended to use those samples pubic addition, with a hair found at or near the scene. noted, investigator prosecutor highlighted probability and the diagram, in a police that the recovered as from the evidence scene “pair light gray panties Lastly, out inside with stains.” investigator “oral, vaginal, testified that and anal swabs [were] taken victim autopsy.” from the at the time *159 314 place trial. no in this sexual had
Those innuendos of assault certainly no such of assault allegation no sexual There was that against The hints of sexual assault charge defendant. capital-murder trial injected into this purposefully prosecutor erroneous, prior ruling, bordered because of our but were gleaned can from prosecutor’s intent be contemptuous. The on diagram included trial. The diagram prepared he and used at forty as evidence. One only eight of than items seized more The items —the panties. was the other eight highlighted items box, empty jewelry case— open pocketbook, the empty watch relevance, marginally at panties were best clear while had substantially inflammatory. more relevant such an Although, normally, I content to find that would be harmless, especially of the trial court’s instruc- was because error counsel, objections I cannot of from defense tions and dearth already in prosecutor here we have warned the find so because very same about this same evidence. this case
D. juries of capital that should be informed I continue maintain they if period ineligibility that defendants face parole the actual of I, imprisonment instead of death. See are sentenced to life Loftin (Handler, J., 420-31, dissenting); 680 supra, 146 N.J. at A.2d 677 Carolina, S.Ct. see Simmons v. South 512 U.S. (1994). jury erroneously The was informed
L.Ed.2d 133 here eligible prosecutor in 2014. parole for The defendant would be they jurors asked whether felt was “sufficient even punishment.” here, had imposition to the sentence defendant
Prior sixty-five years with aggregate accumulated an sentence offense. thirty-two-and-a-half year parole for several unrelated bar Furthermore, be- prior would be extended defendant’s sentence way no that defendant parole. of his violation of There was cause anytime or soon thereafter. going paroled be was majority finds that there was no error in falsely informing jury paroled defendant could be majority 2014. The prosecutor that the reasons unable discuss defendant’s true prospects parole for jury because he could not inform the prior Ante defendant’s 699 A.2d at convictions. 652. Although impermissible it would be jury to inform the of defen convictions, prior dant’s informing jury that defendant would *160 prison long die in he before even the for opportunity parole had jury would not tell the that defendant had those convictions. capital sentencing Our premised scheme is on principle the juries must be legal informed of the effect findings. of their Mejia, supra, II, N.J. at 141 Bey supra, (citing A.2d 164-435, 887). N.J. 548 A.2d Misleading jury the on points way material in a detrimental to the defendant cannot satisfy the constitutional demands capital-punishment of a valid jury The scheme. should have been told that defendant would eligible never parole. be for
Conclusion comes, I have little doubt that when the time this case will eventually by be reversed either Court this or a federal court. grave The errors are so and the of defense so efforts counsel futile that an ineffective assistance of claim líe. I counsel must have reluctantly highlighted only some of I fear the errors here. someday some court use this as will dissent those evidence issues raised were either below or us and before were addressed by the Court. The Court’s consideration and treatment of the issues, however, lacking meager is justify too and to that conclu- sion. Because of the of appellate ineffective efforts both trial and counsel, defense most of the not in dealt issues were fact with. However, scrupulous may review of the record reveal a few of them, by if our impaired even discussion is the failure process. Fortunately, majority adversarial recognizes at least in questions numerous deficiencies and record raised preserves this DNA and statistical evidence and it issue for those post-conviction relief. however, Court, wrong aside the errors and
The is brush Harvey on cannot be executed postpone the inevitable. Nathaniel Despite length majority’s the basis of this record. analysis is unbalanced uncritical. Court opinion, its so much caring expends it appears and conscientious because review, but, actuality, in that effort is energy appellate in its result, insupportable misspent to confirm an death sentence. means seal opinion principled and should not be the I the death of this defendant. dissent. O’HERN, opinion judgment in concurs
Justice except respect II He with to Part thereof. would therefore Court except convictions insofar as the conviction of murder affirm the Two, eligibility. joins Part I of establishes death He Section opinion on the issue of a non-unanimous verdict. Justice Handler’s POLLOCK, GARIBALDI, For STEIN affirmance —Justices and COLEMAN —4. part; part
For reversal affirmance for —Justice O’HERN —1.
For reversal—Justice HANDLER —1.
Notes
notes “the DQ Alpha application dot-intensity analysis to the results of the test,” support at 699 A.2d at then —without ante —it work, not changes by saying analysis that such does ante its tune 189-198, to speculate A.2d at We are forced at 631-632. analysis DQ- dot-intensity works on either the whether or not polymarker testing strips, Alpha testing strips or on the because reliability its and to there is insufficient evidence establish support general acceptance technique of the on either of the inconsistency simply by testing majority kits. evades analysis deciding dot-intensity or works on the that whether analysis DQ-Alpha general acceptance is irrelevant to its analysis majority correctly dot-intensity probes. of the PM As the however, factually out, DQ-Alpha procedure points testing testing procedure. Ante at polymarker similar to the Nothing suggests slight record A.2d 617. testing testing DQ-Alpha polymarker differences between dot-intensity analysis. would affect Moreover, during pretrial Dr. acknowledged as Word hearing, DQ-Alpha using testing marker was retested PM Shea, F.Supp. strips. also United States v. See
notes “mixtures interpreted can be identified and based on relative dot intensities” study certain Id. at circumstances. 706. That is the on any analysis loci to dot-intensity conclude that can interpret, and just identify, support mixtures. The for concluding that dot- intensity differences on DQ-Alpha probes matter is much stronger than support majority’s for the conclusion that dot- polymarker matter on probes. intensities bias majority’s reading starkly of the authorities is evident.