*1 Minnesota, Respondent, STATE of Brian C. OF In re REINSTATEMENT SOUTHWELL, Attorney at Law of Minnesota. SCHWARTZ, Appellant. Robert Thomas No. C8-84-1034. No. C5-89-460.
Supreme of Minnesota. Court Minnesota. Supreme Court of 20, 1989.
Oct. 3, 1989. Nov. 11,1989. Dec. ORDER Denied Rehearing Brian August C. By dated order practice suspended from
Southwell was ninety period for a of law this court (90) days. law suspension practice from the
This reinstated provided that he could terms of complied with certain until he had filed order. He has now suspension stating he an affidаvit this court with complied with the terms of order. has Lawyers Pro- Director of the Office of Responsibility has likewise filed fessional certifying that this court an affidavit with complied has Brian C. Southwell suspension order with two terms of the exceptions. having the affidavit
The court considered Director, Brian and of the C. Southwell that Brian C. IT IS NOW ORDERED hereby prac- reinstated Southwell immediately, subject tice effective of law (1) following conditions: he shall re- voluntary status until he main on restricted сompleted requirements Continuing Legal Education Minnesota and is transferred that board Board active status and he shall thereafter promptly the Director’s office submit to active
proof being reinstated to status Board; (2) by the he shall be CLE placed supervised probation period for a years of this order.
of two date those probation The terms of the shall be in this court’s order dated Au- described gust *2 III,
Minneapolis, Humphrey, and Hubert H. Gen., Paul, Atty. respondent. St. State
OPINION
POPOVICH, Chief Justice. granting the motion to ad- After state’s (deoxyribonucleic mit evidence of DNA acid) testing, Hennepin County District Court, acting pursuant to Minn.R.Crim.P. 28.03, questions following certified the to Appeals, the Minnesota Court of which questions turn certified the to this court: determining In 1.
emerging testing, trial a Frye rely court on the standard of to general acceptability in the scientific community relevancy approach or the Rules of Evidence 403 derived from and 702? Fingerprint- May
2.
evidence of “DNA
ing” test results
admissible in a
proceeding?
determining
the extent of admissi-
results,
bility
test
is a
of scientific
rely
trial
court
[Joon
Kim,
(Minn.
Kyu]
I. following gave rise to the certi-
The
facts
defendant, Thomas
questions. The
fied
Schwartz,
Hennepin
was indicted
County grand jury for murder
the first
(1988)
Minn.Stat.
609.185
degree under
arising
stabbing death of Carrie
out of the
Minneapolis,
May
Coonrod on
acting pursuant
police,
The
Minnesota.
warrant,
pair
of blood-
a search
obtained
resi-
jeans from Schwartz’s
stained blue
shirt was also
dence. A blood-stained
murder,
vicinity
which
found in the
belongs to Schwartz.
the state asserts
Ap-
The Minnesota Bureau of Criminal
(BCA)
group
prehension
performed blood
Sullivan, Asst. Public Defend-
Patrick J.
jeans, shirt and blood sam-
on the
er,
appellant.
Minneapolis, for
These
ples from Schwartz and Coonrod.
Johnson,
stains
Hennepin County
tests confirmed
blood
L.
Thomas
with Coon-
consistent
Redding,
County Atty.,
jeans and shirt were
Atty.,
Asst.
Steven
Frye
rejection of
urges
sam-
state
also sent
state
rod’s blood.
approach
Diаgnos-
adoption of an
testing to Cellmark
standard
ples for
like
(Cellmark), a
novel
treat
would
Corporation
tics
*3
evidence, admitting it
Pennsylvania.
and
opinion
Maryland
expert
in
licensed
other
27, 1988
September
is
and there
report of
trier of fact
a)
it assists
Cellmark’s
if:
it,
702
Minn.R.Evid.
for
concluded:
basis
reasonable
401
banding
rules
pattern
b)
under
703;
in the DNA
it
relevant
All
bands
and
c)
of Carrie Coon-
value is
probative
from the blood
402;
obtained
and
and
banding
in the DNA
prej-
contained
unfair
rod are
for
potential
its
outweighed
removed
McCormick,
from the stain
pattern obtained
403.1 See
C.
udice,
rule
frequency
plaid shirt.
from the
203, at 607-08
Evidence
McCormick
pattern in the Cauca-
banding
this DNA
admissible, relevant
1984). To be
(3d ed.
1 in 33
approximately
population is
sian
scientific
emerging
reliable
and
Although
definitive conclu-
no'
billion.
mus-
passed
necessarily have first
need not
reached,
opinion of
it
sion can be
field, as
scientific
appropriate
its
tеr within
banding
undersigned that
acceptance
general
by Frye’s
required
removed
from the stain
patterns obtained
Hall, 297 N.W.2d
See, e.g.,
v.
prong.
jeans and the blood
the blue
cert, denied, 450
1980),
U.S.
(Iowa
80, 85
indi-
from the same
Carrie Coonrod
(1981).
1384,
L.Ed.2d 359
927,
67
101 S.Ct.
vidual.
un-
safeguard, we believe
this
Without
sought to introduce the results
The state
possible
subjectivity
element
desired
tests,
opposed the
but Schwartz
Cellmark’s
relevancy
rulings
evidentiary
under
motion.
standard, on the other
Frye
approach.
and uni-
objective
hand,
more
facilitates
II.
rulings.
form
1. Frye Standard.
relevancy approach
While the
has been
determining
The traditional test for
see,
e.g.,
adopted by
jurisdictions,
several
admissibility
emerging
1224,
Downing,
v.
United States
753 F.2d
test,
Frye
techniques is the so-called
named
State,
v.
(3d Cir.1985);
Andrews
1229-32
States,
Frye
United
for
recognized principle or dis U.S. (1986); Mack, covery, thing (hypnoti- the deduc from which 292 N.W.2d 768 sufficiently made State v. Kolan cally testimony); tion is must be estab induced gained acceptance der, general lished to have 236 Minn. particular belongs.
in the field in which it (lie tests). (1952) detector Unconvinced the state of the need for or wisdom of Frye Id. at 1014. We have rephrased decisions, overruling prior we reaf- require experts standard to in the field firm that of novel scien- generally agree that the evidence is reliable Mack, by application See State v. trustworthy. tific evidence is determined (Minn.1980). standard, Frye N.W.2d and we answer the Although question only pertinent. the certified refers are also and 703 1. evidentiary rules rules 4) blotting: Southern question accordingly.2 first certified bands nylon are transferred to a membrane Analysis. Forensic retaining positions while the same they previously occupied gel. question presents an issue This certified The double-stranded are then bands court, impression and one of first treated with a chemical that causes involving principles. several basic scientific separate single them to into strands. acid) (deoxyribonucleic is an ex- Hybridization: genetic probes tremely long, 5) (DNA thread-like chain of mole- every clones) in the nucleus of cell cules found applied, which bind to a * * *4 body the *. The DNA chains specific, complementary DNA se- up tightly coiled into bodies called “chro- membrane; quence on the the excess mosomes,” of which humans have twen- probe is then washed оff. * * individuals, ty-three *. No two ex- 6) Autoradiograph: the is membrane twins, cept for identical have identical exposed x-ray film to an and devel- however, given person, DNA. Within a oped banding pat- so that the DNA vary DNA does not from cell to cell. lengths terns and their can be visual- Accept- DNA Typing: Ford, Thompson & Finally, ized. autoradiograph is Weight New ance and Genetic Iden- interpreted by comparing the DNA Tests, Yirg.L.Rev. 45, 75 61 & n. print sample to another DNA tification to deter- (1989). typing еmerging 76 DNA is an they mine if match based on band technique that reveals distinctive length. patterns genetic in the human material of State, Cobey 31, Md.App. See 80 559 fluids, body blood and other hair tis- A.2d (Md.Ct.Spec.App.1989), 397 for a sue. helpful diagram process. of this Three commercial laboratories in the undisputed It is analysis that RFLP is currently perform United States routinely performed generally accepted (the analysis: company Cellmark that did diagnostic purposes for research and with- case),3 Corpo- in this Lifecodes many disciplines. ration, Corporation. and Cetus Both Cell- frequently paternity purposes is used for employ mark and Lifecodes restriction and such evidence has been admitted in fragment length (RFLP) polymorphism S., E.g., Baby In re Girl civil cases. 140 analysis testing. their DNA RFLP 299, 304, Misc.2d 532 N.Y.S.2d 637 analysis following steps: involves the (N.Y.Fam.Ct.1988). typing Forensic DNA 1) Extraction: DNA is removed from significant breakthrough is heralded as a specimen and “washed” greater promises specificity because it organic solvent. may permit analysis samples results and 2) Fragmentation: the extracted DNA by too small to be identified traditional fragments chain is then cut into at means, typing. such as ABO blood specific by mixing sites it with a re- enzyme.
striction hearing testimony 12 ex After from electrophoresis: 3) Gel perts making findings, extensive the DNA is placed gel typing in a to which an electrical trial court found that forensic applied, causing separation using analysis generally accepted current is RFLP Frye fragments according community into under the bands . .scientific length. jurisdictions to their standard. in other Courts 1, 1989, legislative technique 2. A June as "DNA fin- enactment allows 3. Cellmark's is known admissibility analysis of DNA evidence under gerprinting.” Although forensic DNA relevancy approach. name, Minn.Stat. 634.25 § generically often referred to as in (Supp.1989). Because its effective date is Au- question, the certified we shall avoid that termi- 1, 1989, gust Act of June ch. it nology any prevent confusion. apply does not to this case. We are not called upon to nor do we rule effect of the new legislation. 426 jeans blue and from Carrie the stained E.g., conclusion. the same
have reached individ- blood “are from the same Md.App. at 559 A.2d at Coonrod’s Cobey, ual,” banding patterns though did conclusion even court’s (affirming trial accept- generally their match criteria. not fit “fingerprinting” Castro, ed); N.Y.S.2d People v. corollary, specific DNA test As a direсt pretrial (unpublished (N.Y.Sup.Ct.1989) accurate as only as reliable and results underlying foren- concluding theory order particu- testing procedures used accept- generally DNA identification sic court, Indeed, laboratory. a New York lar Misc.2d ed); Wesley, 140 People v. allowing the of exclu- while (N.Y.Co.Ct.1988) 332, 533 N.Y.S.2d evidence, the inclusion- sionary DNA found taking of DNA permitting (granting motion too unreliable to ad- ary DNA test results testing); see samples from defendant proceeding in a criminal because mit (affirm- Andrews, at 850-51 533 So.2d also (Lifecodes) failed to use certain under rele- ing of DNA evidence admission Castro, techniques. generally accepted vancy approach); Spencer v. Common court, al- N.Y.S.2d at 999. Another — — —, I), & n. Ya. (Spencer wealth though allowing DNA test results because *5 (Va.1989), 783 & n. 10 384 S.E.2d procedures were the record showed reliable (Spencer Spencer and v. Commonwealth not, followed, add, at hastened to “[W]e — — II), —, & n. 384 S.E.2d Va. finger- holding that DNA juncturе, this (Va.1989) (affirming trial n. 11 797 & willy-nilly.” printing is now admissible Co- testing reli- DNA court’s conclusion that bey, Md.App. A.2d at 398. able; not used in although Frye standard Working Group on DNA The Technical DNA would Virginia, court said (TWGDAM), Analysis coordinated Methods requirements). Even defense meet its consisting of 31 scientists by the FBI and argument that counsel conceded at oral Canada, has the States and United admissible type of evidence should be laboratory procedures for DNA established agree proceedings. in criminal While we guide- analysis quality RFLP and control generally acceptable, typing that DNA group typing. DNA This lines for forensic reliability of the nevertheless believe important any that test maintains “it is test results is crucial. laboratory possess a procedure by used important in a Reliability particularly accuracy reproducibili- high degree of and proceeding suspect may a because appropriate ty. Consequently, the use of liberty DNA face the loss of due to identifi- in or- and controls are essential standards experts acknowledged that cation. The der to ensure results.” Guidelines reliable nega- “false produce could (QA) Quality Program for for a Assurance tive,” prints match where a between Poly- Fragment Length DNA Restriction in fact exists. is not declared when one (RFLP) (TWGDAM morphism Analysis 1 Contradictory expert testimony was of- defense coun- publication). The state and positive,” a “false where fered on whether argumеnt agreed at oral that such sel wrong individual is identified as appropriate was and neces- standardization sample, re- contributor of the DNA could sary. by sult. We are troubled the fact ex- testing procedures were Cellmark’s having “falsely identi- Cellmark admitted tensively by experts and the reviewed samples coming fied two as from the same hearing. Although pretrial court at per- subject” during proficiency test implemented protocols and Cellmark by formed Assoсiation of California measures for its quality certain control (CACLD). Laboratory Directors Crime follow, in several technicians to deficiencies samples, one Out of 44 total Cellmark made Laboratory pro- aspects exist. “validation match, considered too incorrect which was by FBI developed tocols” were sub- high experts. an error rate some testimony. ject of much The director ambiguous possibility of match conclusions Development Lab- disturbing. example, the Cellmark’s Research is also For Cell- Cotton, samples report oratory, mark Dr. Robin admitted opined that the DNA quency did not meet all the mini- request because Cellmark tables. The defense for guidelines, specific mum as formal more such method- information its published ology methodology validation and results of population data base was experimental peer jour- Arguably, studies review denied Cellmark. trade se- nals, likely may the FBI would not consider crets be at stake for the commercial ready their test results for use in court. laboratories. Protective measures could be experts pursued, however, also reviewed similar stan- denial before of dis- developed dards for by covery appropriate. See Minn.R.Crim.P. Again, 9.03, acknowledged orders) CACLD. Dr. Cotton (protective subd. 5 & subd. 6 (in comported that Cellmark has not with all of camera proceedings).
these standards. Prejudicial failure to disclose information may
Even if a has followed result in imposition of harsh sanc- tions, procedures reliable ensure accurate test such as conviction reversal and the results, may pre granting 9.03, constitutional concerns of a new trial. See id. subd. 8; vent Smith, of such evidence. see also State v. process rights
The fair trial
(Minn.1985) (denying
and due
motion for
implicated
mistrial);
upon by
Zeimet,
when data relied
a labo
N.W.2d
ratory
performing
(Minn.1981)
tests are not
(reversing
available
fоr failure to
opposing
disclose).
party
Virginia case,
review and cross
In a recent
discovery
examination. Under our broad
defendant’s claim that
trial
court erred
rules,
right
defense
has the
permitting
counsel
“to in
testimony
probabili-
inspect
ty
reproduce any
results or
updated
re
statistics that had been
«before
ports
physical
examinations,
rejected
or mental
trial was
because
defendant
*6
tests, experiments
comparisons
or
cоgnizant
“was made
the
of
informa-
[new
made in
particular
connection with the
allege
before trial”
not
any
and did
tion]
9.01,
1(4);
case.”
resulting
Minn.R.Crim.P.
prejudice
surprise.
subd.
see
Spencer
or
—
9.03,
II,
(discovery
—,
also id.
1
investiga
subd.
Va. at
[I]t [not] jury underlying of the statistical evi- tistical evidence and are reluctant to take Thus, danger there that certified dence but that is a real that risk. we answer this Supreme legislature Advisory We 5. on June indi- 4. refer to the Court Com- Minnesota’s approval testing in criminal cated its mittees Rules of on Evidence Criminal Pro- testing (requiring cаses. Id. 609.3461 § cedure for their consideration the task of rec- offenders) (ad- (Supp.1989) sex and id. 634.25 § ommending appropriate proce- standards and results). missibility of DNA The effec- statutory According provi- dures. to the new August provisions tive date of these 1989. sion, Appre- of Criminal Minnesota Bureau holding Act today applies June ch. 22. Our § following proce- hension will standardized only testing prior that date. to analysis. performing dures in Minn.Stat. legislation on DNA The effect new 299C.155, (Supp.1989). subds. pеrformed August dependent after 1989 is litigation. of some facts future affirmative, reiterating question legis- in the combined with the fact that the 1989 rely provided on the Kim limita- (Supp. trial courts should lature in section 299C.155 1989)1 probability tion statistical evi- such should be admis- cases, dence.6 I postulate sible that a our ruling re-examination of in State v. questions Certified answered. Kyu inappro- would be neither Joon Kim WAHL, J., part took no in the considera- priate unduly precipitant. nor tion or deсision this case. KELLEY, (concurring specially). Justice
I
majority
concur in Part I and II
III,
opinion. I likewise
in Part
concur
but
I
considerable reluctance.
feel con-
strained to do so
the doctrine of stare
decisis,
precedent, upon
or
which our com-
but, nonetheless,
mon law is based
take
opportunity
again urge my
once
colleagues
authority
to re-examine the
REMOVAL,
INC.,
FLOORING
upon
premised.
which this case is
Respondent,
opinion premised
Part III of the
v.
holding
mаjority
Kyu
State v. Joon
RYERSON,
al.,
Dan T.
et
Kim,
(Minn.1987).
tary position unpersua- I reasons find Kim,
sive. See Kyu State Joon J., (Kelley, dissenting). N.W.2d at 551-553 The majority decision in v. Joon Kyu Therefore, of recent vintage. Kim is
absent the existence of other reasons not *8 court, therein admittedly considered lightly it should not discarded. How- ever, the that 19 appellate fact state courts appellate
and three federal courts have de- clined to utilize the Kyu State v. Joon Kim limitation popula- use of scientific cases, frequency
tion statistics holding, position opinion, 6. In participate so take no on the Kim did who legislative providing recent enactments for the decision. probability of statistical August as of reaction, 1989. Minn.Stat. § 634.26 Apparently the law was a least in Willis, 1989); (Supp. see also State v. part, Kyu holding. Joon Kim See (Minn.1983) (discussing power to es- dialogue Attorney between Assistant General evidence). special tablish rence, rules In a representing concur- Klumpp, William the Minnesota Kelley urges office, Attorney Justice reexamination of our Representative General’s holding Committee, Kim. We Randy Kelly Judiciary decline do so herе in the House Hearing because the recent enactments statis- Criminal Justice Subcommittee probability (Section tical evidence are not before us. We Omnibus Criminal Control Bill designated then 315) (March 1, 1989). courtesy also refrain out author of our H.F. notes to or upon reports process. Brady memorandum” which the violates Maryland, due v. [or] 1194, 1196, were based data express because such was 373 U.S. 83 S.Ct. 10 ly rules). by discovery (1963); excluded the state’s L.Ed.2d 215 also see 32, 34,151 Blankenship, 277 Minn. N.W.2d Ideally, pro a should defendant be (1967). 412 While this concern is most sample(s) vided with the actual in often noted where the information withheld reproduce order to tests. prac the As a exculpatory, Brady as in and Blanken- matter, may possible tical not this be ship, the constitutional standard none- samples cause forensic often so small encompasses theless material infor- other that the sample testing. entire is used in mation. DNA test results material to Consequently, data, access method guilt impact issue of have an and could ology, and actual results is crucial so a on the trial outcome. opportunity defendant has at least for independent expert response laboratory gener- In to review. Access information motion, ally a discovery significant reason. The Cellmark disclosed to another validity princi- Fingerprinting” pro testing procedures the defense its “DNA of and tocol, community laboratory ples nоtes from the in is assessed in the scientific case, peer jour- autoradiographs produced by publishing this in review data during analysis TWGDAM, RFLP and and statistical fre- nals. FBI CACLD 428 mea- evidence as a jury will use the publication of a labo- stress standards probability defendant’s sure of and data used ratory’s product work innocence, that the evidence guilt or independent repli- as analysis, as well presumption studies, thereby will undermine are essential and validation cation innocence, the values served erode reliability. Efforts to as- prerequisites standard, and dehu- the reasonable doubt labor- reliability of the commercial sess the system justice. or consequently manize our methodology have atories’ information has this been hindered because Tribe, (citing at 483 Trial fully made available. For yet not been Precision Ritual Mathematics: published yet has example, not Cellmark Process, 84 Harv.L.Rev. Legal methodology its and its regarding datа (1971)). only selectively available. probes are urges reject Kim us to The state limitation, DNA evi- agree the trial court least with While we are inte- gained gen Probability dence. calculations that forensic The conclusion that community, gral typing. to DNA acceptance in the scientific eral probabil- match on the specific prints test DNA is based hold we ity the same hinges that a random individual has particular ease results banding pattern sample. as laboratory’s compliance appropriate with controls, statistical evidence state maintains that availability standards and unfairly jury if prejudice will an their data and results.4 We presented adequate opportunity after an question accordingly. the certified swer in- limiting and with for cross-examination case in this did not Because jurisdictions While admit struction's. other guidelines, comport the test re with evidence, see, type e.g., United and, adequacy sults lack foundational with Franzen, States ex rel. DiGiacomo more, out are thus inadmissible.5 (7th Cir.1982); F.2d State v. Stu- (1987); III. P.2d key, 242 Kan. Gomes, 403 Mass. Commonwealth v. trilogy culminating of cases 1270,1279-80 (1988), are not 526 N.E.2d Kim, Kyu v. Joon N.W.2d