Turner v. StateTurner v. State
This case concerns the admissibility of deoxyribonucleic acid (“DNA“) evidence under
In 1992, the police found Ms. Ollie and her nephew, L.C., brutally stabbed to death in their home. Ms. Ollie had suffered 34 stab wounds from a butcher knife. L.C. had suffered 15. Police officers, who were observing a group of people standing in front of the home, noticed Turner washing his hand in a nearby puddle of water. When the officers approached him, they noticed that the puddle was bloody and that Turner had a cut on his hand. They arrested him.
At Turner‘s trial, the State offered DNA evidence to show that the DNA in blood samples recovered from the house occupied by Ms. Ollie and L.C. was consistent with Turner‘s DNA. The trial court held a hearing, without the jury, to determine the admissibility of the DNA evidence. At the hearing, Elaine Scott, a forensic serologist
At trial, Scott testified: (1) that the DNA samples taken from the murder scene matched Turner‘s DNA; and (2) that the odds of finding Turner‘s particular DNA profile are 1 in 42,410,000 in the black population and 1 in 179,700,000 in the white population. The jury convicted Turner of two counts of capital murder.
In the Court of Criminal Appeals, Turner argued that the DNA population frequency statistical evidence had not met the Perry standard of admissibility. The Court of Criminal Appeals, applying the Perry standard, held that the DNA evidence was inadmissible because the State had failed to show that the generally accepted testing techniques that produced the DNA population frequency statistical evidence were properly performed in this case.
I. The Perry Standard
In the 1991 Perry decision, this Court addressed the admissibility of DNA evidence:
“In Alabama, whether novel scientific evidence is admissible is determined normally by using the test established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). In Frye, a criminal defendant sought to introduce evidence concerning a systolic blood pressure lie detector test. In affirming the trial court‘s exclusion of the evidence, the court wrote:”
“Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”
“Other courts have discussed what Frye requires to permit the introduction of DNA evidence and whether the Frye requirements should be modified somewhat in relation to the admission of DNA evidence. Cf..... United States v. Two Bulls, 918 F.2d 56 (8th Cir. 1990)....”
This Court noted that in addition to the results of the Frye “general acceptance”
“`It is the view of this court that given the complexity of the DNA multi-system identification tests and the powerful impact that they may have on a jury, passing muster under Frye alone is insufficient to place this type of evidence before a jury without a preliminary, critical examination of the actual testing procedures performed in a particular case.\‘”
Perry, 586 So.2d at 248 (quoting Castro, 144 Misc.2d at 959-60, 545 N.Y.S.2d at 987-88 (citations omitted)). This Court then quoted with approval the opinion of the United States Court of Appeals for the Eighth Circuit in United States v. Two Bulls, 918 F.2d 56, 61 (8th Cir.1990), which applied the Frye general acceptance test, plus a factor dealing with the performance of generally accepted testing techniques on the evidence at issue:
“`The trial court is to decide (1) whether the DNA evidence is generally accepted by the scientific community, (2) whether the testing procedures used in this case are generally accepted as reliable if performed properly, [and] (3) whether the test was performed properly in this case....\‘”
Perry, 586 So.2d at 249 (quoting Two Bulls, 918 F.2d at 61) (emphasis added). This Court embraced the ”Frye-plus” standard (that is, general acceptance of the type of theory and technique relied upon plus an examination of the performance of the techniques in the particular case), adopting the following three-pronged test for the admission of DNA evidence in Alabama trials:
“I. Is there a theory, generally accepted in the scientific community, that supports the conclusion that DNA forensic testing can produce reliable results?
“II. Are there current techniques that are capable of producing reliable results in DNA identification and that are generally accepted in the scientific community?
“III. In this particular case, did the testing laboratory perform generally accepted scientific techniques without error in the performance or interpretation of the tests?”
II. The Daubert Standard
In 1993, two years after this Court‘s Perry decision, the Supreme Court of the United States overruled the “austere” Frye standard for the admissibility of expert scientific evidence in federal trials. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Daubert, 509 U.S. at 589, 113 S.Ct. at 2794-95, the Supreme Court concluded that
”Frye made `general acceptance\’ the exclusive test for admitting expert scientific testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials.
“. . . .
“... [U]nder the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”
Daubert, 509 U.S. at 589, 113 S.Ct. at 2794-95 (emphasis added). Thus, if scientific evidence passes the two-pronged test of Daubert—reliability and relevance—it will be admissible and the jury will determine the appropriate weight to give that evidence.
The “reliability” prong of the Daubert admissibility test requires the party proffering the scientific evidence to establish that the evidence constitutes “scientific knowledge.” Daubert, 509 U.S. at 590, 113 S.Ct. at 2795. The evidence need not represent immutable scientific fact, but, rather, it must be derived by use of
In assessing reliability, trial courts should look to several guiding factors, including: (1) whether the “theory or technique... has been ... tested“; (2) whether the “theory or technique has been subjected to peer review and publication“; (3) whether the technique‘s “known or potential rate of error ... and ... standards controlling the technique‘s operation” are acceptable; and (4) whether the theory or technique has gained “general acceptance” in the relevant scientific community. Id. at 593-94, 113 S.Ct. at 2796-97.
The “relevance” prong of the Daubert admissibility test requires the party proffering the scientific evidence to establish that the evidence “assist[s] the trier of fact to understand the evidence or to determine a fact in issue.” Daubert, 509 U.S. at 591, 113 S.Ct. at 2796 (quoting
In 1994, the Alabama Legislature specifically addressed the admissibility of DNA evidence when it established a state DNA data bank. Act No. 94-804, Acts of Alabama 1994. The Legislature made several findings, including:
“(d) That genetic identification technology through DNA testing is generally accepted by the relevant scientific community.
“(e) That the procedures and techniques employing the underlying theory of DNA identification [are] capable of producing reliable results and are generally accepted in the relevant scientific community.
“(f) That genetic identification established through DNA testing and analysis should be admissible as a matter of evidence in all courts of this state and that juries, both civil and criminal, should be responsible for assessing the weight, if any, to be given to expert testimony or evidence.”
“Expert testimony or evidence relating to the use of genetic markers contained in or derived from DNA for identification purposes shall be admissible and accepted as evidence in all cases arising in all courts of this state, provided, however, the trial court shall be satisfied that the expert testimony or evidence meets the criteria for admissibility
as set forth by the United States Supreme Court in Daubert []v. Merrell Dow Pharmaceuticals, Inc....”
In this case, the Court of Criminal Appeals held that the Legislature‘s enactment of
First, the Legislature could hardly have been more explicit in choosing between two standards of admissibility: Perry (Frye-plus—strict general acceptance) or Daubert (flexible reliability and relevance). The Legislature chose the Daubert standard of admissibility. We view this choice as purposeful and effective. See Belcher v. McKinney, 333 So.2d 136, 140 (Ala.1976) (“we are aided by the presumption that the legislature made an informed judgment“); Gulf Coast Media, Inc. v. Mobile Press Register, Inc., 470 So.2d 1211, 1213 (Ala. 1985) (“It is presumed that the legislature does not use statutory language without any meaning or application.“); Clark v. Houston County Comm‘n, 507 So.2d 902, 903 (Ala.1987) (stating that a “fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute“).
Second, Daubert itself rejected the Frye standard, which was much less strict than Perry‘s Frye-plus standard:
”Frye made `general acceptance\’ the exclusive test for admitting expert scientific testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials.”
Daubert, 509 U.S. at 589, 113 S.Ct. at 2794-95 (emphasis added). The Supreme Court also explained that the proper focus at the admissibility stage is on the “principles and methodology, not the conclusions that they generate.” Id. at 595, 113 S.Ct. at 2797. Once this is determined, the jury is capable of weighing the evidence:
“[Litigants should not] be overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction of the burden of proof are the traditional and appropriate means of attacking shaky but\’ admissible evidence.”
Daubert, 509 U.S. at 596, 113 S.Ct. at 2798. Unlike Perry, 586 So.2d at 250, Daubert does not require the accuracy of the testing in the particular case to be assessed at the admissibility stage.
Third, the Eighth Circuit, which authored the Two Bulls decision on which this Court relied in Perry to establish the Frye-plus standard of admissibility, has expressly held that, in light of Daubert, Two Bulls no longer has any precedential value. Pioneer Hi-Bred Int‘l v. Holden Foundation Seeds, Inc., 35 F.3d 1226, 1229 n. 12 (8th Cir.1994).4 Moreover, in United States v. Beasley, 102 F.3d 1440, 1446-47 (8th Cir.1996), cert. denied, 520 U.S. 1246, 117 S.Ct. 1856, 137 L.Ed.2d 1058 (1997), the Eighth Circuit held that under Daubert the defendant‘s argument concerning the laboratory‘s testing of the DNA in his particular case went to the weight of the
We hold that if the admissibility of DNA evidence is contested, the trial court must hold a hearing, outside the presence of the jury, and, pursuant to
I. Are the theory6 and the technique (i.e., the principle and the methodology) on which the proffered DNA forensic evidence is based “reliable“?
II. Are the theory and the technique (i.e., the principle and the methodology) on which the proffered DNA evidence is based “relevant” to understanding the evidence or to determining a fact in issue?7
Trial courts should use the flexible Daubert analysis in making the “reliability” (scientific validity) assessment. In making that assessment, the courts should employ the following factors: (1) testing; (2) peer review; (3) rate of error; and (4) general acceptance.
Trial courts should make the “relevance” assessment by addressing the “fit” between what the scientific theory and technique are supposed to show and what must be shown to resolve the factual dispute at trial. Whether otherwise reliable testing procedures were performed without error in a particular case goes to the weight of the evidence, not its admissibility. Only if a party challenges the performance of a reliable and relevant technique and shows that the performance was so particularly and critically deficient that it undermined the reliability of the technique, will evidence that is otherwise reliable and relevant be deemed inadmissible.8
III. Application of the Daubert Standard
In this case, the State sought admissibility of: (1) RFLP matching DNA evidence; and (2) DNA population frequency statistical evidence. With respect to DNA matching evidence, the State‘s expert, Ms. Scott, testified that the RFLP technique and the theory upon which it is based are used by the Alabama Department of Forensic Sciences. She further testified that the theory and the technique are generally accepted by the Federal Bureau of Investigation and the relevant scientific community as reliable.9 This Court has recognized the reliability of the theory and techniques used in RFLP DNA matching testing. Perry, 586 So.2d at 250. Accordingly, we take judicial notice that the DNA matching evidence was reliable. Because the DNA matching evidence was relevant to determining a fact in issue in this case, the trial court correctly held that it was admissible.
With respect to the DNA population frequency statistical evidence, however, the record is unclear as to whether the State satisfied the reliability test as to the theory and technique used by the Department of Forensic Sciences. The record is also unclear as to whether the trial court took judicial notice of the reliability of the State‘s DNA population frequency statistical evidence and, if so, the basis for such judicial notice. Accordingly, we cannot determine whether the trial court committed reversible error.10
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, HOUSTON, KENNEDY, and BUTTS, JJ., concur.
Notes
In Perry, 586 So.2d at 247, we explained the interaction of matching and statistical frequency analysis:
“`After the autorad [an X-ray of DNA fragments] has been produced the results must be interpreted. The bands [DNA fragments] on the autorad in different lanes must be examined to determine if they “match“. The bands in various lanes on the autorad are visually inspected to see if they co-migrate. If a match is declared, the issue is reduced to determining the likelihood that the match is unique. A match is said to occur if the sizes and number of the detected RFLPs [restriction fragment length polymorphisms (i.e., variations in the manner in which organic base pairs composing a DNA molecule expand when exposed to a restriction enzyme)] in various lanes are indistinguishable within a permissible degree of error. They are then measured either manually or by a digitizer attached to a computer. Whatever standard of measuring error is used to determine if the bands are indistinguishable must also be used when calculating the frequency of the band in the population.
“`The “uniqueness” question is answered according to the principles of population genetics, using the same matching rule or standard deviation.\‘”
(Quoting People v. Castro, 144 Misc.2d 956, 967, 545 N.Y.S.2d 985, 992 (N.Y.Sup.1989)).
The Eighth Circuit stated:
“This court granted rehearing en banc and vacated the Two Bulls panel opinion, then, upon suggestion of death of the appellant, this court vacated the scheduled en banc hearing and ordered that the appeal be dismissed. United States v. Two Bulls, 925 F.2d 1127 (8th Cir.1991). Insofar as this vacated opinion ha[d] any precedential value, it ended with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [113 S.Ct. 2786, 125 L.Ed.2d 469] ... (1993).”
Moreover, although we conclude that the Perry standard of admissibility has been replaced with respect to DNA evidence, the following discovery and burden-of-proof guidelines established in Perry, 586 So.2d at 255, and as modified for the Daubert test, remain viable:
“1. The proponent of the [challenged] DNA evidence ... should give discovery to the adversary, which should include, upon request: (1) Copies of autorads, with the opportunity to examine the originals. (2) Copies of laboratory books. (3) Copies of quality control tests run on material utilized. (4) Copies of reports by the testing laboratory issued to the proponent. (5) A written report by the testing laboratory setting forth the method used to declare a match or non-match, with actual size measurements, and mean or average size measurement, if applicable, together with standard deviation used. (6) A statement setting forth observed contaminants, the reasons therefor, and tests performed to determine the origin and the effects thereof. (7) If the sample is degraded, a statement setting forth the tests performed and the results thereof. (8) A statement setting forth any other observed effects or laboratory errors, the reasons therefor and the effects thereof. (9) Chain of custody documents. (10) A statement by the testing lab, setting forth the method used to calculate the allele [(i.e., particular form of gene)] frequency in the relevant population. (11) A copy of the data pool for each [locus] examined. (12) A certification by the testing lab that the same rule used to declare a match was used to determine the allele frequency in the population. (Note that the discovery provisions in (10), (11), and (12) specifically address evidence of DNA population frequency statistics.)
“2. The proponent shall have the burden of going forward to establish that the tests and calculations were [both reliable and relevant]. Once this burden is met, the burden of proof shifts to the adversary to prove, by a preponderance of the evidence, that the tests and calculations should be suppressed or modified.”
(Quoting Castro, 144 Misc.2d at 978-79, 545 N.Y.S.2d at 999).