*1 P.2d 1187 Appeal Re the Matter COCHISE NO.
COUNTY JUVENILE
JV95000239.
No. CV-96-0502-PR.
Supreme Court of Arizona.
Feb. = Petition for DE-
ORDERED: Review
NIED.
STATE of Henry HUMMERT, Appellant.
Steven
No. CR-95-0100-PR. Arizona,
Supreme Court
En Banc.
March April
Reconsideration Denied
120 Woods, Attorney
Grаnt Arizona General Howe, by Paul J. McMurdie and Randall M. Phoenix, for the State of Arizona. González, Mesa, Henry Alex D. for Steven Hummert.
OPINION FELDMAN, Justice. (Defendant) Henry ap Hummert
Steven
pealed
kidnaping,
convictions for
sexual
his
abuse,
assault,
aggravated
sexual
as
sault.
claimed the
Defendant
trial
erred
admitting
testing.
evidence DNA
175
Following State v.
Ariz.
denied,
(1993),
P.2d 1152
cert.
511 U.S.
(1994),
court of found that testi mony experience personal of ran about dom at three loci had the effect of matches jury communicating to the This, the conclusively cаme from Defendant. held, prejudicial error. appeals Therefore, Id. the case was reversed and accepted pursuant review remanded. We Rules Rule 31.19 of the Arizona of Criminal with a his that was consistent jurisdiction Ari- wound on arm We have under Procedure. 5(3). bite, Constitution, VI, pubic § hair from the crime scene art. zona Although with his hair.
was consistent
photographs
other
from a
picked
victim
two
AND
FACTS
PROCEDURAL HISTORY
*3
line-up,
identified
pretrial photographic
she
16,
early morning
July
In
hours of
the
at
Defendant as her assailant
trial.
1989,
Tempe
nineteen-year-old
woman and
a
performed
using
FBI
DNA tests
the
The
driving
from a dance club
a friend were
home
Length Polymorphism
Fragment
Restricted
they
when
a red Honda
with
noticed
CRX
(RFLP)
and
that DNA
mеthod
found
ex-
an em-
gray
plates
out-of-state license
and
on
victim’s
from semen
the
under-
tracted
shaped
blem
like Texas on the rear. The
loci,
DNA at four
wear matched Defendant’s
traveling
Honda
a different direction
was
although one match was not considered be-
A
at an intersection.
little while
and turned
victim shared the
allele.1 At
cause the
same
yet
turning in
a
later
saw the same car
trial,
of the
judge
the
admitted evidence
different direction at another intersection.
match,
match,
declaring
the
for
a
and
criteria
dropped
The
her friend and
woman
off
opinions that Defendant was
excluded
home,
boyfriend’s
her
he
went on to
but was
Frye2 hearing,
After
the DNA tests.
a
the
Again
thought
not thеre.
she
she saw the
judge
although
process
found that
the
of
ap-
red
she
at
Honda. When
arrived home
profiling
accepted by
been
RFLP DNA
had
a.m., a
proximately
surprised
3:30
man
her
community,
the
the meth-
relevant scientific
leaving
as she was
her car and forced her
calculating
proba-
ods
the mathematical
for
neighbor’s yard
gunpoint.
into a
As
at
he
bility
generally
of a random match were not
so,
did
she saw the same red Honda CRX
accepted.
probability of a
The statistical
part
and was able
remember
of the license
expresses
possibility
in a
random match
plate
raped
number. The man then
her.
Bible,
percentage.
In
mathematical
ex-
attempted
strangle
The аttacker
the
vic-
testified,
effect,
ample, the witness
tim,
struggle
and in the
bit him on his
she
probability
the
the
on Bible’s shirt
blood
assault,
During
forearm.
the
hit
he
her
came from the
in a
victim was
“conservative”
head, perhaps
around the face and
with the
range of 60 million to one. 175 Ariz. at
gun
against
planter,
butt of his
a
brick
allowing
858 P.2d at
Instead of
statis-
causing severe lacerations and
of con-
loss
match,
probability
tics
a
of
random
up,
When she
the
sciousness.
woke
red
only
testimony
permitted
the trial
gone.
Honda was
DNA
uniqueness
about the
of
and
ex-
The victim
car
license
described the
and
pert’s personal experience
finding
in never
police
family
hospi-
at
and
members
matches under the same circum-
random
Propitiously,
tal.
a cousin who had visited
random,
If
stances.
a match is
then the
hospital stopped
nearby
her at
at a
Mc-
sample
from
could have come
someone other
Donalds, where he saw a red Honda CRX
person
question.
than
plates
Texas-shaped
with Texas
and
em-
a
of
Defendant
convicted
two counts of
was
Defendant,
blem on
back.
who owned
assault, kidnaping,
ag-
two counts of
sexual
car,
a man-
worked at McDonalds as
assault,
abuse, all
gravated
and sexual
dan-
questioned
ager.
police,
Defen-
When
gerous
felonies. Because Defendant had
a party
dant claimed to have been at
with
prior felony
probation,
was on
convictiоn and
at the
assault.
people from work
time
he
sentenced
concurrent
terms of
was
police
later
Defendant
co-workers
told
twenty-five years to life
all counts.
on
say
party
had
them to
he left the
asked
approxi-
appeal
challenged
Defendant
the ad-
actually
4:00
when he
left at
On
a.m.
evidence, among
mately
missibility
had
DNA
oth-
2:00 a.m.
also
Defendant
States,
(C.A.D.C.
explanation
analysis,
F.
2. See
v. United
1. For a detailed
of RFLP
case,
Bible,
1923),
explained
applied
the method used in this
cites
and
175 Ariz.
literature,
see
found this was error because it significance the of overstated the DNA test Bible State v. and Cellmark’s use of results, implicitly conveyed jury to the the product the rule statistics, forbidden random match and made Applying Frye, we reviewed the admissi- practically impossible it for the defense to bility probability of DNA statistical evidence referring cross-examine the without product calculated the rule3 in with Bible. probability to the inadmissible statistics. Id. We held that while the RFLP method of opinion, In its the court cited several cases admissible, declaring match is the a random holding from other states DNA evidence and match mathematical calculations were inad- the declaration of a match in inadmissible the laboratory ap- missable because the that had generally of accepted population absence fre- plied product rule used a flawed data- quency statistics. 581,
base.
Id. at
expressly not decide whether the in- [did] 1. Alternative methods admissibility proba- of the random match experts’ testimony pres The in the bility calculations that means other DNA types ent case involved two of evidence— evidence, such as evidence of a match is procedures scientific on for evidence the de inadmissible____ termining evidentiary a match between ap- opinion concerning experts’
We take a cautious conservative and evidence the proach. knowing experience Not what in oth- records with random matches. The trial show, er cases will judge properly applied Frye analysis what issues those cases the and raise, will technology or what new will that of a match determined evidence is ad However, bring, go we neither write in stone nor missible. on the basis of the scien must____ available, farther than we no tific We make evidence then the did far, judgment all, experts testify final on how if at the not allow the to about the may go in allowing party a to inform mathematical or statistical result- visually a both Instead, еxperts they found match had from the match. ing They pro- that per explained of their numerically. allowed to offer evidence were governed testimony This one of opinion. probes, though sonal four files matched over by Arizona of but application not in inter- rejected probe matches was 702 and 703. See State v. Rules of Evidence areas accuracy and that the looked ests of 212, 1312, Roscoe, 219, 145 Ariz. vary analysis polymorphic and RFLP “Frye-ing" scientific evidence testimony fit with- between individuals. This necessary application of a scientific when category scientific evidence “likely technique is to have an enormous requirements of it met the permitted because resolving completely a matter effect Frye. Superi controversy.” rel. State ex Collins experts’ prosecutor then turned Court, 1266, 644 P.2d or developing experi- personal experience, their (1982), M. & J. Liver- quoting Udall perti- analysis the RFLP (2d ence with § at 212 more, Law of Evidence testimony ed.1982). their However, support nent literature gives when the personally never seen or heard testimony “only helps interpret trier to had on loci. evidence ... it will be received match over three four of random certainty.” showing of scientific Id. However, developed lesser such a it was also Roscoe, weight of As we stated in “[t]he possible between identical match would be upon validity hinge did not evidence twins or Dеfendant chose even brothers. rather, accuracy principle; some experts on the basis cross-examine credibility, hinged expert’s] on it [the focusing fact on the opinions, instead accuracy of ... past his observation ex percentage of DNA differs only a small training reliability ... tent and the person person, possibility of labo- from Roscoe, interpretations____” his 145 Ariz. at bias, error, ratory insults and environmental 1320; 220, 700 P.2d at on McCormick Evi noted, As is the evidence DNA. (J.W. § nn. 27 and 28 dence very evidence discussed type ed.1992). al., eds., Strong 4th et Roscoe, the application is not on which based testify in this case did not to conclusions rather, but, ob- principle of scientific on the application based Cellmark’s statis credibility of witness. servations and only own expe tics and database but to their Thus, requirements of it need meet the Having rience. made DNA examination substantially relevancy prej- and not be more *7 according recognized principles scientific probative. udicial Ariz.R.Evid. 401 than See loci, finding experts the and a match three and 403. unique claimed that because of nature of DNA, they person’s never each had before Application of Rule 703 match unrelated seen a three-loci from indi appeals argued Rule 703 The court of that experi viduals. On the basis their own might way as a to “back-door” other be used ence, they such random match believed unacceptable wise scientific evidence. Under very trial would be uncommon. The cases, however, present be state our admitting not err in this evidence of the did evidence, opin opposed cause as scientific and and the experts’ experience own work evidence, require ion must first meet the on that See Ariz. opinions reached basis. Frye, we find this ments of Rule R.Evid. 702 and 703. Moreover, highly unlikely. a search of cases Opinion evidence an “end-run” as of Rule within Arizona shows no such abuse around Rather, alleged inadmissible evi under Rule 703 is dence most often used appeals suggested clearly such hearsay, and we have stated that although personal their couched terms of for basis evidenсe is admissible testimony effectively experience, experts’ any not for substantive value. opinion, conveyed jury then-impermissible Lundstrom, 147- See State v. match statistics. We do random 1067, 1073-75 why 776 P.2d agree. explained Both witnesses appeals argued The court of ing also misleading jury outweighed for effectively the defense to cross-examine probative value of the evidence. See Ariz. experts assumptions about was R.Evid. appeals 403. The court of disagreed, “practically impossible without resorting to 404(b) (evidence holding that under Rule precluded random match probability sta admissible, alia, other acts inter to show tistics.” While we note that Defendant ef identity) jury should have been allowed fectively thoroughly cross-examined the to hear the evidence and decide whether experts problems may have oc exculpation Defendant’s in the other case declared, curred to taint the match we was identity relevant to the issue of in this nothing also find under Rule 703 that would case. Ariz. 905 P.2d precluded have cross-examination to estab opinions lish that the applica were based on We do problem grounds not believe the tion of an unrecognized principle. scientific Although for reversal. this issue was not It is well established in Arizona that review, petition assume, raised in the we basis for expert’s opinion an game is fair arguendo, the other act evidence was during cross-examination. See Ariz.R.Evid. marginally relevant. Thus it was within the 705; § citing Arizona Evidence trial judge’s discretion to determine its ad- Swafford, 474, 486, 21 Ariz.App. 520 P.2d missibility under Rule 403. We see no abuse (1974) (“The expert invites inves Furthermore, of discretion. given the over- tigation into the extent of knowledge, his whelming evidence of guilt, Defendant’s in- reasons opinion for his including facts and cluding evidence, any the DNA error in re- upon other matters which it is based and jecting was, beyond the other act evidence which he took into may consideration and be doubt, reasonable harmless. subjected rigid to the most cross-examina concerning tion qualifications his and his sources.”). Special D. Moreover, and its concurrence had Defendant still keep desired to out the num The rather unusual nature of the concur- bers that were the basis for experts’ ring opinion justifies brief comment. The opinions, probably he could have cross-exam justice concurring joined this court’s Bible ined the on the method of determin opinions. Now, and Johnson although con- ing of the match and the ceding legal analyses and results were controversy behind it without ever correct, he nevertheless wishes to confess
mentioning the exact numbers. some scientific errors in language court used in those cases to summarize sci- C. Exclusion of evidence of Mesa sexual principles entific typing, related to DNA assault population genetics, analysis. and statistical judge rejected The trial Defen complexity Given the of the science and dant’s offer of evidence of another sexual underlying principles, mathematics these assault with some similarities to the assaults *8 readily concede that may mistakes there charged in Although this case. police elimi ante, but, be—see note concurring as the 3— nated him a suspect, as argued Defendant justice notes, those mistakes “did not affect perpetrator that the of the other sexual as the results.” Concurrence at 16. sault could have perpetrator been the in this purpose We see no judge proclaim- case. The found therefore in that because of sub ing culpa” technical, “mea crimes, stantiаl differences between the two scientific er- as-yet unpublished there was rors described in an evidence law with an “in tendency herent by to connect the review article written even person other the most dis- with tinguished the actual college professor. Respect- commission of the law [charged] 493-94, therefore, fully, crime.” join we to in decline 502-03, Oliver, citing P.2d at concurring justice’s If, act of contrition. 589, 590-91, Ariz. believes, (App. concurring justice 251-52 the trial court 1991). Moreover, held, judge record in Bible showed that Cellmark’s “da- basis of Rule danger of confus- tabase was population consistent them, they before whom Hardy-Weinberg equalibrium,” then so be it. was not revealed appear, to whom could at 16. could not and Concurrence question. argument neither nor address view, Nor, justice’s despite concurring attempt past or this one to cases did
“resolve scientific issues.” Concurrence CONCLUSION them, attempt only to understand 18. We passage of time recognize We that the training in keeping in mind our lack of these position us in a better to evaluate has left disciplines, and to articulate them to the than the admissibility of DNA evidence necessary explain extent the reasons for considering the case before us. How courts concluding principle has or that a scientific ever, trap apparent here that the we hold accepted in has not been the relevant scienti- science, rule, pings and scientific community. fic It is hard to make such an recognition need not cloud the courts’ views. explanation stating at without least es- necessary Frye is Although compliance with principle explaining and what is sence of the by reaches a conclusion when the scientist accepted. or is not applying theory process a scientific based propos- The law review article makes two others, discovery of under on the work or als, explicitly implicitly both of which are experts may testify con Rules 702 and 703 concurring justice. The endorsed cerning experimentation own and ob eases first is that the courts should decide opinions based on their own servation and opinions trying explain and write without showing general accep first work without principles. opin- the relevant scientific tance. evidence need meet the Such result, merely ion would announce the based requirements of relevance and traditional consensus, providing on scientific thus nei- confusion, or prejudice, avoid substantial description explanation is or ther nor of what R. Evid. waste of time. See Ariz. scientifically accepted. is not But as the admitting trial did not err in the evi acknowledges, author of the article himself question dence this case. approach is “trivial” because it is “un- appeals’ vacate the court of We therefore likely produce cоnvincing opinions.” As judge’s rulings affirm the trial and concludes, analysis the author in the final convictions. and Defendant’s court “must understand needs to be what understood,” and sometimes neither counsel J., ZLAKET, C.J., MOELLER, “pro- nor the court’s own scientific research JACOBSON, (Retired), J. concur. adequate Kaye, clarification.” D.H. vide[s] Arizona, Reading: Bible DNA Evidence in CORCORCAN, J., did not ROBERT J. (pre-publica- Ariz. St. L.J. participate in the determination of this copy). tion matter; VI, 3,§ pursuant to Ariz.Const. art. second, main, JACOBSON, proposal
The article’s the Honorable EINO M. J.(Retired) opin- draft Appeals, that the court should submit its of the Arizona Court of One, involving designated ions on cases scientific issues to a in his Division to sit scientists, panel will under- of learned who stead. non-peеr process
take a
sort
review
Justice,
MARTONE,
concurring.
correctly appreciat-
make sure the court has
attempt
This is our third
to deal with the
ed and decided issues affected
sci-
would,
suggest
I
an
process
complexity
of DNA. write to
ences. Id.
Such
course,
*9
approach
acknowledges
that
our limitations.
make life easier for the members of
Bible,
549,
court,
1152
exercising origi-
In
175 Ariz.
858 P.2d
this
but unlike courts
Johnson,
329,
(1993),
v.
jurisdiction,
provision
nal
we have no
and State
(1996),
to
appellate opinions.
ble—we are not trained scientists.
proponent
results. But
of scientific evidence must estab-
our mistakes did not affect the
underlying
principle
imperfect
lish that the
scientific
is
reasoning
our
flawed
an
was
generally accepted in the relevant scientific
understanding
of DNA. Two of
of the science
States,
Frye
F.
community.
v. United
293
many mistakes follow.
(D.C.Cir.1923).
1013,
requires
“Frye
1014
rejected
proba-
One reason we
statistical
nothing
People,
v.
851 P.2d
more.” Fishback
using
product
in
bilities calculated
rule
(Colo.1993).
884,
Frye
suggest
does nоt
891
[was]
Bible was that “the database relied on
judges
experts in the sci-
must become
Bible,
Hardy-Weinberg equilibrium.”
not in
Rather,
judges
ence behind the evidence.
586,
Ariz. at
at
But in
175
858 P.2d
survey
scientific litera-
are to
the relevant
perceived
flaw would have benefit-
content,
ture,
but to de-
not for substantive
defendant,
thus,
ed the
was not a reason
acceptance within the
termine the level of
product
rule estimates. David H.
exclude
community.5
not have
scientific
We would
Kaye,
Reading:
Bible
DNA Evidence in Ari-
stopped
point
erred in Bible had we
(forthcom-
zona,
1035,
28 Ariz. St. L.J.
acknowledging
product rule was not
that the
1997).
ing
Additionally,
expert testimony
generally accepted. We would not have
then
showed that the database was consistent with
merely
in
acknowl-
erred
Johnson had we
population Hardy-Weinberg equilibrium.
edged
ceiling method was.
that the modified
Id. at 1056-57.
course,
general understanding
Of
too,
Johnson,
expert
we allowed
tes-
So
only help the decision
underlying science can
timony
significance
using
of a match
It is
making process. But there are limits.
method,
ceiling
part
modified
because
Nor
not our task to resolve scientific issues.
clear,
assump-
report
“the NRC
makes
vocabulary
presume
speak
should we
linkage equilibrium ...
is well-
tion of
I
the task of de-
of science.6 would leave
Johnson,
Ariz. at
grounded.”
princi-
scribing the details of new scientific
ceiling
But
P.2d at 297.
the modified
method
ples to scientists.
developed
linkagе
to be used
case
contrast,
admissibility
question
is
In
Kaye,
equilibrium
supra
did not exist.
delegate its reso-
ours to make. We cannot
ceiling
the modified
meth-
1064^65. Because
legal
are two
is-
lution to scientists. There
generally accepted in the scientific com-
od is
the DNA method-
sues. The first is whether
right
munity, we nevertheless reached the
match satisfies
ology used to determine a
result.
may
Frye.
is whether an
The second
Notwithstanding
prob-
these and other
match,
testify
of a
about
lems,
majority
relies on Bible and John-
quantitatively
qualitatively.
or
either
erred,
though
son as
we had not
and tries
DNA. I would
again
explain
the science of
methodology
1. DNA
path.
I
it
not continue down this
believe
initially
controversy that
surrounded
acknowledge that it is neither
time for us to
no
necessary
typing
DNA
has been resolved. Courts
possible
nor
us to understand
.for
question
biological and techno-
legiti-
longer
It
“[t]he
the science of DNA.
do,
principles underlying the forensic
principles
logical
DNA
mate scientists
and that
characterizing DNA variations.”
accepted in
scien- methods for
generally
the relevant
(NRC), The Eval-
community.
National Research Council
tific
recognize
may require
judges
engage
cases
in a num-
I
some
does not ask
give very
the under-
basic overview of
present
game.
acceptance
General
is determined
bers
case, however,
lying
does
science.
considering
quality,
quantity,
well as
“the
principles.
hinge upon
This case
scientific
not
involves the Rules of
opposing
supporting
a new
of the evidence
Evidence,
applica-
not the
technique.
majority
Mere numerical
principle. See
at 128-
tion of a scientific
infra
by persons minimally qual-
support
opposition
explana-
court's
129 (1996) them supporting data Ariz. R. Evid. The DNA Evidence Forensic nation of 703, Ariz. under Rule opinions are admissible copy). (prepublication R. Evid. Johnson, recognized In Bible typing using the
reliability forensic DNA It not judges, scientists. We involves the This case also RFLP method. identify legitimacy of able to for us to be underlying theory approach. “[T]he RFLP as to ex- proponents so principle and its generally technology is not DNA and RFLP Qualitative descriptions junk science. clude Moore, v. open to attack----” State serious a match are admissible. significance Mont. Thus, issue this case unresolved testimony on
whether admissible.
of a DNA match is Expert interpretation match of a DNA the second This court has twice addressed P.2d 1197 both significance of a match. On issue —the Arizona, Appellee, STATE occasions, controversy quantita- involved interpretations of the match. tive product that the rule In we decided Timothy BOLES, Appellant. Roosevelt time. generally accepted at was not later, Johnson, years we held Three Arizona, Supreme Court of generally ceiling the modified method was En Banc. community accepted in the relevant scientific therefore, and, testimony on the statistical March un- DNA match calculated significance of a der that method was admissible. ceiling method product rule and the These
are based on mathematical formulae. population
in turn on statistics and are based State, *2,
genetics. Brim v. 695 So.2d (Fla. 16,1997). Because the scienti- Jan. community position
fic is in the best to deter- reliable, Frye
mine whether a formula is *3,
governs. See id. at be-
This case is unlike Bible and Johnson quantita- qualitative, it involves a
cause
tive, significance of a description of the testified
match. The this ease samples from never seen two had that matched over three
unrelated donors possibility of a random
probes, “rare,” can and that DNA
match was conclu- identify” person. These
“uniquely upon their own scientific
sions were based upon a expert relied
experience. Neither principle. agree I
controversial therefore, court, is not concerning experts’ opinions
applicable. The personal of DNA” and their “uniqueness Rule
experience are admissible under