MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant’s Motion To Exclude DNA and Serology Test Results and Request for Daubert Hearing. [Doc. No. 422, filed April 22, 2012; Doc. No. 442 (Defendant’s (Corrected) Supplemental Memorandum), filed May 10, 2012], Defendant, on numerous grounds, asks the Court to hold a Daubert hearing and to exclude the Government’s DNA test results. The Government filed a Response [Doc. No. 547, filed June 25, 2012], and Defendant filed a Reply [Doc. No. 562, filed July 9, 2012], Both parties also filed voluminous exhibits on CDs submitted to the Court.
The Government argued that a pretrial Daubert hearing was unnecessary. [Doc. No. 547, pp. 57-58] The Court agrees that a pretrial Daubert hearing is not warranted on most issues, because a sufficient record has already been presented in the hundreds of pages of briefs and thousands of pages of exhibits. On May 6 and 7, 2013, however, the Court held an evidentiary hearing on the admissibility of Low
The Court has reviewed the parties’ filings, the evidence presented, and the relevant law. The Court grants Defendant’s motion to exclude the results of LCN DNA testing; the Court otherwise denies Defendant’s motion to exclude DNA evidence. The Court concludes that the Government has not carried its burden of demonstrating, by a preponderance of the evidence, that the results of the LCN testing conducted by the New Mexico Department of Public Safety (NMDPS) Laboratory are admissible. The Court thus specifically excludes the DNA evidence on Item 1132313, conceded by the Government to be an LCN result. With respect to the remainder of Defendant’s arguments, the Court concludes that Defendant’s motion is not well taken and is denied.
BACKGROUND
Several handguns were collected when Tracy Province, and later Defendant and Casslyn Welch, were arrested. Numerous swabs were taken from the Haases’ pickup truck and from items inside the truck. These items and others were tested by Carrie Zais Davis, the Government’s DNA analyst at NMDPS Laboratory.
The Court has four lab reports, from August 30, 2010; September 30, 2010; December 22, 2010; and April 27, 2011. These lab reports list the numerous items examined, the procedures employed, the analyst’s results and conclusions, and in some instances the statistical analysis. The Government proposes to have its DNA analyst, Davis, testify at trial to her results and conclusions from DNA testing. According to the Government’s disclosure, Davis is also expected to testify regarding collection of samples, the strict chain of custody observed, lab controls in place to protect the integrity of the samples, and the peer review process used in the analysis of these samples and subsequent comparison. [Doc. No. 442, p. 19]
For instance, the Government asserts that a .40 caliber Smith & Wesson handgun was the murder weapon. [Doc. No. 547, p. 4] Davis tested and analyzed a number of swabs taken from different parts of this handgun, Item 1B22. Davis’s lab report states the procedures and methods used: “the Applied Biosystems AmpFISTR Identifiler PGR Amplification Kit on a GeneAmp PCR System 9700 thermal cycler,” an “Applied Biosystems 3130 Genetic Analyzer,” and “GeneMapper ID software.” [Defs Ex. G6, Sept. 30, 2010 report, p. 2] Davis’s report states that a DNA mixture was obtained from different parts of this handgun and magazine, and states her opinion: “To a reasonable degree of scientific certainty, John McCluskey is the source of the major DNA profile resolved from these mixtures.” [Id. (referring to Items 1B22A (swab of stains on rear of handgun slide); 1B22B (swab of stain on inside of handgun ejection port); 1B22C (swab of handgun grips); 1B39A (swab of stain on 1 Smith & Wesson magazine)) ] Davis’s report states that a DNA mixture was obtained from a swab (Item 1B22D) of the trigger and trigger guard on the same handgun; the lab report
In addition, Davis analyzed “Touch DNA” swabs from the steering wheel (Item 31 a) and from the gear shifter (Item 31 g) of the Haases’ pickup truck. [Defs Ex. G6, Dec. 22, 2010 report, pp. 1, 3] Davis’s report states that a DNA mixture was obtained from both of these items and states, with respect to both Item 31a and Item 31g: “To a reasonable degree of scientific certainty, John McCluskey is the source of the major DNA profile resolved from this mixture.” [Id., p. 3] Davis further states her opinion, regarding Item 31a, that Welch, Province, Linda Haas, and Gary Haas are eliminated as contributors to this DNA mixture. [Id.] Regarding Item 31 g, the report states that the minor DNA profile may be used for elimination purposes only, and that Welch, Province, and Linda Haas are eliminated as contributors of the minor DNA profile. [Id.]
Davis also analyzed swabs of red stain recovered from the pavement at a Phillips 66 gas station in Santa Rosa, New Mexico, Item R-6. [Doc. No. 547, p. 5; Defs Ex. G6, Dec. 22, 2010 report, pp. 2, 4] Davis’s report states that a DNA mixture was obtained from Item R-6 and states her opinion that Linda Haas and Gary Haas “cannot be eliminated as possible contributors to this DNA mixture.” [Defs Ex. G6, Dec. 22, 2010 report, p. 4] Davis states that Welch, Province, and Defendant “are eliminated as contributors to this DNA mixture.” [Id.]
The Court is not currently aware of how many of the results and conclusions from Davis’s lab reports the Government proposes to present at trial.
Defendant filed a motion to exclude the results of all of the Government’s DNA testing. [Docs. No. 422, 442] The Government filed a Response [Doc. No. 547], and Defendant filed a Reply [Doc. No. 562]. Both parties also filed voluminous exhibits on CDs. [May 14, 2012; June 25, 2012] The Court admitted about 100 additional exhibits at the May 6-7, 2013, evidentiary hearing.
I. ADEQUACY OF DISCLOSURE PROVIDED BY GOVERNMENT
Defendant asserts that the Government’s Notice of Intention To Offer Expert Testimony [Doc. No. 261] and the Supplemental Notice of Intent To Offer Expert Testimony [Doc. No. 386] do not comply with Rule 16. [Doc. No. 442, pp. 17-23]
The Government responds that its disclosures meet the requirements of Rule 16 and satisfy the intent of the discovery requirements. [Doc. No. 547, pp. 5-6] The Government asserts that it has provided more than Rule 16 requires — including Davis’s lab reports, the foundational data including protocols and standard operating procedure, internal and external audits, and proficiency tests. [Doc. No. 547, p. 6]
The Government was required to disclose expert evidence to be presented at trial under Rules 702, 703, or 705. In civil cases, Rule 26 requires a “written report” containing “a complete statement of all opinions the witness will express and the basis and reasons for them.” Fed.R.Civ.P. 26(a)(2)(B)(i). The requirements in criminal cases are more limited; Rule 16 requires the Government to give Defendant only “a written summary” including “the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.” Fed.R.Crim.P. 16(a)(1)(G). Rule 16 disclosure is designed to give the opposing party notice, permitting preparation for cross-examination and presentation of opposing experts. See Fed. R.Crim.P. 1 advisory committee’s notes to 1993 amendment. Detailed, extensive discussion is not required in the Rule 16 summary: “Although the summary required by Rule 16 provides the defense with some notice, the requirement of setting forth ‘the bases and reasons for’ the witnesses’ opinions does not track the methodological factors set forth by the Daubert Court.” Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 Minn. L.Rev. 1345, 1360 (1994).
The Government provided Defendant with a curriculum vitae for Carrie Zais (Davis), which Defendant provided to the Court as an exhibit.
The Government provided Defendant with Davis’s laboratory reports, eleven pages of which were provided to the Court by Defendant. [Defs Ex. G6] These reports sufficiently notified Defendant of Davis’s opinions. For instance, the September 30, 2010 report, at page 2, informs Defendant that Davis can be expected to testify to her opinion that, “[t]o a reasonable degree of scientific certainty, John McCluskey is the source of the major DNA profile” obtained from items 1B22A, 1B22B, 1B22C, and 1B39A. The “voluminous foundational material” Defendant acknowledges receiving — including the methodology, testing analysis, results, notes, and national match detail report — was sufficient to describe “the bases and reasons for those opinions” under Rule 16. In addition, the Government’s disclosure notice informed Defendant that Davis is also expected to testify regarding collection of samples, the chain of custody, lab controls in place to protect the integrity of the samples, and the peer review process used in the analysis of these samples and subse
The Tenth Circuit rejected similar arguments that a Rule 16 disclosure failed to sufficiently convey an expert’s opinions and the bases and reasons for those opinions. In Brown, the government provided a fingerprint examiner’s CV and report, and the summary of testimony stated that the expert “will testify that she compared the defendant’s known fingerprints found on fingerprints [sic] cards with a latent fingerprint found” on a job application, and “will testify the latent fingerprint on the job application is the defendant’s fingerprint.” United States v. Brown,
The Tenth Circuit opinion in Brown shows that Rule 16 disclosures are not required to include the extensive and exhaustive level of detail and information for which Defendant is arguing. The Court finds that the Government’s disclosures meet the requirements of Rule 16.
Defendant also asserts that the Government’s notice was late, under the Court’s Scheduling Order. [Doc. No. 442, p. 18] It is not necessary for the Court to consider this issue further other than to observe that it is Defendant’s burden to “demonstrate” prejudice — either from the timing or the adequacy of the Government’s disclosure. See United States v. Kenyon,
The Court finds that the Government’s disclosure satisfies Rule 16. Even if the Court had found any violation, the Court would have been required to impose the least severe sanction that would fulfill the purposes of Rule 16. Brown,
Since the purposes of Rule 16 have been satisfied, and the Court finds no evidence of bad faith in any delays, there is no basis for any sanction. See id.
In addition, since Defendant has requested, and been granted, a continuance of the trial date, the Court finds that any prejudice from any failure to fully comply with disclosure will be cured. Charley,
II. NO NECESSITY FOR A SEPARATE, PRETRIAL DAUBERT HEARING
Defendant asks the Court to hold a Daubert hearing. [Doc. No. 442, p. 98] Daubert v. Merrell Dow Pharm., Inc.,
“ ‘The most common method for fulfilling [the gatekeeper function] is a Daubert hearing, although such a process is not specifically mandated.’ ” United States v. Turner,
The Court is required to make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert,
In Nichols, the defendant challenged the admissibility of opinions by a forensic explosives expert about the type and size of the bomb that destroyed the Murrah building in Oklahoma City. The defendant challenged the FBI laboratory’s protocol and procedures, and also challenged the manner in which the lab work was performed; the defendant’s challenges included arguments that the FBI laboratory lacked proper protocols and prescribed procedures, that the testing methodologies used were inappropriate, that unqualified persons participated in performing the test, that the equipment was not properly maintained, and that discovery information suggested the possibility of contamination. Nichols,
The district court in Nichols declined to hold a pretrial Daubert hearing and reserved ruling on admissibility until the testimony was offered at trial. Id. The Tenth Circuit held that the court did not abuse its discretion, because a separate, pretrial hearing is not required in order for a district court to properly fulfill its gatekeeping function. Id. at 1263.
The district court in Nichols stated that the evidence did not involve “any new scientific theory and the testing methodologies are neither new nor novel.” Id. at 1263. The district court stated that “the contentious issue was whether the test results were undercut by flaws in the laboratory tests, a matter involving the credibility of witnesses and weighing of the evidence, both of which were more suitable for resolution by the jury.” Id.
The district court in Nichols reasoned that the showing required to determine admissibility was also evidence that must be presented to the jurors to allow them to assess the weight and credibility of the expert opinion evidence. Id. at 1263-64. The Tenth Circuit agreed, quoting the Advisory Committee Notes to Rule 104: “ ‘Not infrequently the same evidence which is relevant to the issue of establishment of fulfillment of a condition precedent to admissibility is also relevant to weight or credibility----’” Id. at 1264. The district court concluded: “Because the accused has the right to have the jury hear evidence relevant to the weight and credibility of opinion evidence, the necessary foundation for admission should be presented to the jury”; and “That procedure avoids the duplication that would result from a pretrial hearing.” Id. at 1263-64. Again the Tenth Circuit agreed, stating that the district court’s “method of conserving judicial resources” was consistent with the Advisory Committee Notes to Rule 104:
[T]ime is saved by taking foundation proof in the presence of a jury. Much*1235 evidence on preliminary questions, though not relevant to jury issues, may be heard by the jury with no adverse effect. A great deal must be left to the discretion of the judge who will act as the interests of justice require.
Nichols,
The Tenth Circuit stated that the district court’s actions in Nichols were “flawless.” Id. at 1264. The Tenth Circuit held that “Daubert does not mandate an evidentiary hearing,” and, on appeal, the Court “simply require[s] ‘a sufficiently developed record in order to allow a determination of whether the district court properly applied the relevant law.’ ” Nichols,
The Tenth Circuit observed that the procedure followed by the district court in Nichols was consistent with the Tenth Circuit’s opinion in Davis. Nichols,
More recently, the Tenth Circuit again held that a separate, pretrial Daubert hearing is not specifically mandated. United States v. Nacchio,
In determining that a separate, pretrial hearing is not required under Daubert, the Court observes that a number of courts have held that judicial notice of the reliability of PCR/STR DNA analysis can be taken. See, e.g., United States v. Beasley,
In the case before the Court, the briefs on the DNA evidence are more than two hundred pages long and the exhibits submitted by the parties exceed three thousand pages (plus additional exhibits on LCN testing). The parties have cited numerous additional authorities. The parties
The Court finds that there is a sufficient record for decision and that the parties have been provided ample opportunity to be heard. The Court held an evidentiary hearing on LCN testing; the Court finds that a separate, pretrial Daubert hearing is unnecessary on other DNA issues. The Federal Rules seek to avoid “unjustifiable expense and delay” as part of their search for truth and the just determination of proceedings. Kumho,
The Court emphasizes that the Government must lay the foundation for admissibility under Daubert before any expert opinions or conclusions are given. See Nichols
Defendant’s motion for a separate, pretrial Daubert hearing on issues other than LCN testing is denied.
III. DNA TESTING IN THIS CASE
The Government states that the NMDPS DNA Laboratory used the following in this case: Quantifiler Duo DNA Quantification Kit; AmFISTR Identifier PCR Amplification Kit; Applied Biosystems 7500 Real-Time PCR SDS Software, version 1.2.3.; Applied Biosystems 3130 Genetic Analyzer Data Collection Software, version 3.0; Applied Biosystems GeneMapper ID Software, version 3.2; FBI Popstats software, version 5.7.4; ABI Prism 3130 Genetic Analyzer. [Doc. No. 547, pp. 7-8] The Identifier kit amplifies fifteen STR loci, including the thirteen core DNA markers used in the Combined DNA Index System (CODIS), and two internationally accepted STRs. [Gov’s Ex. 14 (6/25/12) ]
IV. ADMISSIBILITY OF DNA EVIDENCE
A. Legal Standard Governing Admissibility Under Daubert and Rule 702
The admission of expert testimony is governed by Federal Rule of Evidence 702 and the Rule’s interpretation by the Supreme Court in Daubert, Joiner, and Kumho Tire. Daubert v. Merrell Dow Pharm., Inc.,
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
The proponent of the evidence has the burden of showing that expert evidence is admissible, by a preponderance of proof. Daubert,
The trial court “ ‘generally must first determine whether the expert is qualified.’ ” United States v. Avitia-Guillen,
Daubert sets forth a non-exclusive list of factors that may be considered, including: (1) whether the theory or technique can be, and has been, tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; and (5) whether the theory is generally accepted in the relevant scientific community. Daubert,
The Daubert Court emphasized that the inquiry under Rule 702 is “a flexible one.” Daubert,
The Federal Rules encourage the admission of expert testimony. 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 702.02[1], at 702-5 (Joseph M. McLaughlin, ed., Matthew Bender 2d ed.2012). The Dauberb Court recognized the “liberal thrust” of the Federal Rules and their “general approach of relaxing the traditional barriers to ‘opinion’ testimony.” Daubert,
B. Qualifications of Government’s Witness, Carrie Zais Davis
The Government provided Defendant with the curriculum vitae of its proposed DNA expert, Carrie Zais Davis. [Def's Ex. X6; Gov’s Ex. 4 (5/6/13) (updated CV) ] At the May 6, 2013 evidentiary hearing, additional information was provided about Davis’s qualifications; without objection from Defendant, Davis was qualified to testify as an expert in DNA analysis. [Tr. 5/6/13, p. 130]
Davis obtained a B.A. in Biology from the University of Texas, Austin, in 2000. In 2003-2004, Davis took courses in: statistical analysis of forensic DNA evidence, population genetics, and biochemistry. [Tr. 5/6/13, p. 120; Defs Ex. X6] Between 2003 and 2011, Davis attended twelve seminars or workshops. She testified, however, that she did not believe she had ever attended a class on LCN testing. [Tr. 5/6/13, p. 169] She is a member of the American Academy of Forensic Sciences.
Davis worked as a paternity laboratory technician at Orchid GeneScreen for one year. She then worked at Orchid Cell-mark as a CODIS DNA analyst for eight months and as a Forensic DNA Analyst for the next five years. For the following three years, Davis worked at the New Mexico Department of Public Safety Laboratory as a “Forensic Scientist, Advanced,” in the Biology/DNA Unit. From October, 2010, to the present Davis was the “Supervising Forensic Scientist, Advanced.”
The Government’s Response states that Davis “has been responsible for and qualified to perform, DNA extractions, mixed stains analysis, STR/PCR analysis, serological evaluation, report writing and statistical interpretation, paternity testing, and database (CODIS) analysis.” [Doc. No. 547, p. 3] Davis testified that she had worked on about 1500 DNA analyses. [Tr. 5/6/13, p. 119] The Government states that Davis “completed extensive in-house training on both the AmpFlSTR Identifiler Amplification Kit” and the 3130 Genetic Analyzer. [Doc. No. 547, p. 3] Davis takes two proficiency tests per year, as required in a CODIS-participating lab; Defendant was provided with the results of five proficiency tests. [Tr. 5/6/13, p. 123; Doc. No. 547, p. 6 n. 6] Davis has testified as a DNA expert eleven times. [Tr. 5/6/13, pp. 129-30]
In a case involving a witness with similar, though lesser, qualifications than Davis, the Tenth Circuit held “meritless” a claim that the witness was not qualified as a DNA expert. Wilson v. Sirmons,
Davis has twelve years of experience in DNA analysis. Davis holds the position of Supervising Forensic Scientist, Advanced — apparently a higher title than
Defendant’s motion raises a number of questions about Davis’s qualifications:
(1) In his 2012 motion to dismiss, Defendant observes that the documents that had been provided by that time did not show whether Davis had met continuing-education requirements. [Doc. No. 442, pp. 106-07] At the May 6, 2013 hearing, however, Davis testified that she always fulfilled or exceeded her continuing-education requirement of eight hours per year. [Tr. 5/6/13, p. 120]
(2) Defendant raises a question regarding forms showing “K. Zais” or “Katherine Zais” working as “technical support personnel.” [Doc. No. 442, p. 106 (regarding forms included in Def s Ex. X6) ] The Government responds that those documents do not concern Carrie Zais Davis, but her sister Katherine Zais. [Doc. No. 547, p. 3 n. 3]
(3) Defendant speculates that Davis may not be sufficiently familiar with the Identifiler kit. [Doc. No. 442, p. 107] This speculation is, at most, a suggestion of a gap in Davis’s qualifications or knowledge. But “[g]aps in an expert witness’s qualifications or knowledge generally go to the weight of the witness’s testimony, not its admissibility.” Robinson v. GEICO General Ins. Co.,
(4) Defendant suggests that Davis may be biased, because she works for a lab closely aligned with a police department. [Doc. No. 442, pp. 85-86, 107] This, again, is a proper subject for cross-examination; evidence of bias would not be a proper basis for exclusion of expert testimony. Cruz-Vazquez v. Mennonite Gen. Hosp.,
(5) Defendant suggests that, although he was provided with the results of five successful proficiency tests, blind proficiency tests would have provided better quality assurance. [Doc. No. 442, pp. 145-47] Defendant also suggests that a DNA analyst should be certified, citing National Research Council, Strengthening Forensic Science in the United States: A Path Forward, p. 208 (2009) [hereinafter NRC (2009) ]. [Doc. No. 442, pp. 105-06, 144-45] Defendant argues that Davis may be qualified “to testify to the procedures she used in this case,” but that her CV does not demonstrate that she is qualified “to testify about molecular biology, to make estimates of population frequencies, or to establish that a biological methodology or an estimation procedure is valid evidence or generally accepted.” [Doc. No. 442, p. 106]
Certification may indicate that an expert’s opinion is entitled to greater weight, but such certification is not a prerequisite to qualification as an expert witness. Pages-Ramirez v. Ramirez-Gonzalez,
Similarly, if Davis had taken blind proficiency tests, passing them might have bolstered her qualifications more than the proficiency tests administered by NMDPS, which are not “blind.” See People v. Lehmkuhl,
The Court finds that Defendant’s arguments go to the weight of Davis’s testimony, not to its admissibility. Additional attributes might have bolstered Davis’s qualifications, but they are not necessary for a witness to qualify as an expert. The Court concludes that Carrie Zais Davis is qualified to testify as an expert in DNA analysis. Davis’s qualifications meet or exceed those of the witness determined to be qualified by the Tenth Circuit in Wilson,
C. Reliability of PCR/STR Methodology
The PCR/STR method of DNA analysis was used in this case. [Doc. No.
Back in 1997, the Shea court observed that “although PCR is a relatively new technology, it is based on sound scientific methods and it has quickly become a generally accepted technique in both forensic and non-forensic settings.” United States v. Shea,
By 2001, many more opinions held that PCR/STR testing was reliable and admissible, both under Frye and under Rule 702. Lemour,
By 2003, additional cases observed that the majority of jurisdictions addressing the issue held that PCR/STR testing was scientifically rehable and admissible. State v. Whittey,
In 2009, the National Research Council stated that “nuclear DNA analysis ... has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” NRC (2009), p. 7. DNA typing is “universally recognized as the standard against which many other forensic individualization techniques are judged.” Id. at 130. “DNA enjoys this preeminent position because of its reliability and the fact that, absent fraud or an error in labeling or handling, the probabilities of a false positive are quantifiable and often minuscule.” Id. at 130.
Daubert recognized that “theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice.” Daubert,
Considering the Daubert factors, it is clear that the PCR/STR method can be and has been extensively tested, it has been subjected to peer review and publication, there is a low error rate according to NRC (2009), and there are controls and standards in place. Daubert,
D. Application of PCR/STR Methodology
1. Legal Standard
Defendant raises the issue of how intensively and extensively the trial court reviews proposed expert evidence in its gatekeeping function. The Government distinguishes between review of the methodology itself (i.e.,-.the PCR/STR method of DNA testing); and review of the application of that methodology (e.g., the kits, software, hardware, and statistics). The Government’s position is that once the
The Court concludes that the caselaw, together with the policy and principles underlying Rule 702 and Daubert, supports the Government’s position. As the Court concludes in Section IV(C) above, the PCR/STR methodology is reliable and admissible under Rule 702 and Daubert; Defendant’s challenges to the application of that methodology go primarily to the weight of the DNA evidence, not its admissibility.
(a) Tenth Circuit caselaw
The Government states that the NMDPS Laboratory used: Quantifiler Duo DNA Quantification Kit; AmFISTR Identifiler PCR Amplification Kit; Applied Biosystems 7500 Real-Time PCR SDS Software, version 1.2.3.; Applied Biosystems 3130 Genetic Analyzer Data Collection Software, version 3.0; Applied Biosystems GeneMapper ID Software, version 3.2; FBI Popstats software, version 5.7.4; ABI Prism 3130 Genetic Analyzer. [Doc. No. 547, pp. 7-8] The Government states that the “systems and machines” used are “the industry standard for DNA testing.” [Doc. No. 547, p. 4]
Defendant argues that “forensic DNA testing requires a series of distinct steps, and that the methods employed at each major step are independently reviewable under Daubert ”; these “steps” and “methods” include all of the kits, software, and hardware listed in the preceding paragraph and, in addition, the statistical methods, population databases, and capillary electrophoresis. [Doc. No. 442, pp. 87, 90-91, 94-96] Defendant cites a number of Tenth Circuit cases — including Dodge, Tyson Foods, and Davis — in support of this argument. Dodge v. Cotter Corp.,
Defendant’s argument relies heavily on language quoted by the Tenth Circuit in Dodge:
Under Daubert, “ ‘any step that renders the analysis unreliable ... renders the expert’s testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.’ ” Mitchell,165 F.3d at 782 (quoting In re Paoli R.R. Yard PCB Litig.,35 F.3d 717 , 745 (3d Cir.1994)). [hereinafter Paoli II]
Dodge,
The Court concludes that this “any step” language does not mean what Defendant
Although Dodge quotes the “any step” language, that principle was not determinative in Dodge so it was unnecessary for the Tenth Circuit to extensively consider the point. Dodge acknowledges Daubert’s exhortation: “The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” Daubert,
Nor does the Tenth Circuit opinion in Davis support Defendant’s argument. In Davis, the defendants argued that because the trial court did not adequately investigate whether the government had followed protocol, the government had not established the reliability of the RFLP DNA analysis. Id. at 1073. The Davis court stated the inquiry under Daubert as a two-part test: (1) “ ‘whether the reasoning or methodology underlying the testimony is scientifically valid,’ ” and (2) “ “whether that reasoning or methodology properly can be applied to the facts in issue.’ ” Id. at 1074 (quoting Daubert,
Davis does not aid Defendant. First, the Tenth Circuit did not hold that the
In Tyson Foods, the State of Oklahoma asserted environmental claims and sought to enjoin Tyson Foods from applying poultry waste to land within the Illinois River Watershed. Oklahoma’s expert used microbial source tracking to identify a DNA biomarker specific to poultry litter bacteria; by using PCR to replicate the bacteria’s DNA, she believed she could identify whether the bacteria in various environmental samples came from poultry litter instead of from other sources. Id. at 775, 780. The process required the expert to identify and develop poultry-litter-specific DNA fragments, or primers, in an effort to track the source of contamination. Id. at 780-81.
Because the PCR methodology was applied to an entirely new area, requiring the development of primers for bacterial DNA that had not been identified previously, the district court looked to other indications of reliability for this “ ‘novel and untested’ ” method. Id. at 781. Since there were no additional indications of reliability — no testing, no publications, no peer review— the district court determined that the expert evidence was not “sufficiently reliable” under Daubert. Id. at 775, 780-81. The Tenth Circuit affirmed, holding that “where established methods are employed in new ways, a district court may require further indications of reliability.” Id.
At first blush, Tyson Foods may appear to support Defendant’s argument. In setting out the legal standard, Tyson Foods does quote the “any step” language from Paoli II. Id. at 780 (quoting Mitchell v. Gencorp Inc.,
In addition, Tyson Foods provides some support for the Government’s position. The Tenth Circuit hints that the PCR methodology is scientifically valid, and cites with approval several cases admitting PCR evidence and also holding that deficiencies in the procedure go to weight, not admissibility. Id. at 780-81. The Tenth Circuit cites United States v. Boswell,
The Court has considered several additional Tenth Circuit cases which set forth the “any step” language.
In Cornwell, the driver of an SUV had been killed when she hit a locomotive. Cornwell v. Union Pac. R.R.,
The Court concludes that the Tenth Circuit cases, though they do not directly address the issue raised by Defendant, do not generally support Defendant’s argument. Taken out of context, the “any step” language may appear to do so, but close examination shows that the Tenth Circuit cases appear to view this as essentially a restatement of “too great an analytical gap” under Joiner. The Joiner issue — the lack of sufficient connection between the conclusions and data — is a different issue from the level of scrutiny for reviewing the application of a reliable methodology.
. (b) Caselaw from other circuits
Since the Tenth Circuit cases cited do not directly address the issue, the Court looks to caselaw from other circuits. The “any step” language quoted by the Tenth Circuit in Dodge and Tyson Foods comes from a Third Circuit case, Paoli II; since the Tenth Circuit adopted this principle, it is important to see how the Third Circuit and other courts interpret it when addressing challenges to the application of DNA methodology.
Well-reasoned caselaw holds that a court should not review the application of a reli
The Third Circuit, in an opinion issued in 1990, stated that if a “challenged procedure is more accurately described as an application of an accepted methodology,” the challenge is a matter for resolution by the factfinder and goes to the weight of the evidence, not its admissibility; but if “the allegation is that a reliable methodology was so altered as to skew the methodology itself,” the issue goes to admissibility of the evidence. In re Paoli R.R. Yard PCB Litig.,
Thus, as we explained above, we think that the primary limitation on the judge’s admissibility determinations is that the judge should not exclude evidence simply because he or she thinks that there is a flaw in the expert’s investigative process which renders the expert’s conclusions incorrect. The judge should only exclude the evidence if the flaw is large enough that the expert lacks “good grounds” for his or her conclusions.
In a later case, the Third Circuit explained and clarified Paoli II. The Third Circuit stated that in Paoli II it had “ ‘cautioned’ ” that the standard for determining reliability “ ‘is not that high,’ ” and “ ‘is lower than the merits standard of correctness’ ”; the grounds for an expert’s opinion “ ‘merely have to be good’ ” — not “ ‘perfect.’ ” In re TMI Litig.,
As the Second Circuit explained Paoli II, a “minor flaw in an expert’s reasoning or a slight modification of an otherwise reliable method” does not render expert evidence inadmissible. Amorgianos v. National R.R. Passenger Corp.,
The Eighth Circuit takes the same approach as the Third Circuit. In Martinez, the Eighth Circuit reconciled the two competing principles set forth by the Daubert Court: the need for the trial court to ensure that scientific evidence is “ ‘not only relevant but reliable,”’ and the need to respect the role of the jury in “ ‘the adversary system’ ” under the more liberal Daubert standard for admissibility. United States v. Martinez,
A later Eighth Circuit case applied Martinez in rejecting a challenge to PCR DNA evidence. The defendant in Beasley argued that PCR testing did not meet the standards of admissibility under Daubert, and that even if it did, the protocol and procedures employed by the Minnesota laboratory were inadequate. United States v. Beasley,
The Eighth Circuit again applied this approach when a defendant challenged the reliability of new kits for applying the PCR/STR methodology. United States v. Gipson,
Other courts follow this approach. See, e.g., United States v. Morrow,
These cases, including those of the Eighth and Third Circuit, require the trial court to undertake some review of the application of a reliable methodology, but only allow exclusion for a flaw so large as to undermine the reliability of the methodology itself. See Langill,
Other cases take a more liberal approach to admission of expert evidence over challenges to the procedure, or application of the methodology — emphasizing the liberal thrust of the Federal Rules and the emphasis on the factfinder’s role in assessing and weighing evidence. For instance, the First Circuit took the approach that “any flaws in [an expert’s] application of an otherwise reliable methodology went to weight and credibility and not to admissibility.” United States v. Shea, 211 F.3d 658, 668 (1st Cir.2000). The First Circuit stated, “Most circuits that have spoken have agreed with this approach, relying on the view that ‘cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof is the proper challenge to ‘shaky but admissible evidence.’ ” Id. (quoting Daubert,
Almost any challenge to an expert’s conclusions can be redefined as a dispute over methods. However, Rule 702’s reliability requirement distinguishes between a claim that an expert’s methods are unsound and a claim that scientifically sound methods have been applied improperly in a particular case. A claim that scientific methods are unsound must be addressed initially by the trial judge, while a claim that scientifically sound methods have been applied improperly ordinarily should be left for the jury to resolve unless the alleged “error negates the basis for the reliability of the principle itself.” United States v. Martinez,3 F.3d 1191 , 1198 (8th Cir.1993).
Shea,
Other courts also hold that challenges to the application of a methodology go to the weight of the evidence, not its admissibility. See, e.g., United States v. Jakobetz,
(c) Other caselaw cited by Defendant
Additional cases cited by Defendant are not persuasive. [Doc. No. 442, pp. 87-97] Defendant’s often cursory citations, many of them to Frye cases, do not support his argument. Defendant argues: “The focus on the specific methods and procedures used in the particular case is universal in Daubert and Frye litigation.” [Doc. No. 442, p. 94] Defendant is incorrect in arguing that the same approach toward admissibility is followed by Frye and Daubert cases. Frye cases intentionally apply a philosophy directly contrary to Daubert and the “liberal thrust” of the Federal Rules, consciously setting a higher bar to admission of expert evidence. As discussed in Daubert, Frye cases set an “austere standard, absent from, and incompatible with, the Federal Rules of Evidence.” Daubert,
Nor do the federal cases cited by Defendant support his argument.
Defendant cites Shea, Hicks, and Chischilly. [Doc. No. 442, p. 90] These federal cases are discussed above as examples of cases holding that challenges to the application of a methodology go to the weight of expert evidence, not its admissibility. These cases support a contrary approach to the one Defendant advocates.
Defendant relies on one statement in Beasley: “‘[T]he PCR method of DNA typing using the DQ alpha Amplitype test kit and the Polymarker test kit has achieved general acceptance within the forensic science community.’ ” Beasley, 102
Defendant cites a Fourth Circuit opinion affirming the exclusion of expert testimony from a state Fire Marshall that an electric blanket caused a fire — when the Fire Marshall failed to examine and utterly failed to exclude as causes of the fire a burning candle, a lamp, an extension cord, a wall outlet or its wiring. Bryte v. American Household, Inc.,
Defendant cites the district court opinion in United States v. Lowe,
Defendant cites a New Mexico District Court case, Coronado-Cervantes: “In the absence of clear directive from the Tenth Circuit, this Court finds that under Daubert’s second ‘relevance’ prong, compliance with standard protocol in applying the RFLP technique is essential and goes to admissibility, rather than merely to the weight of DNA evidence as urged by the government.” United States v. Coronado-Cervantes,
Defendant cites Government of Virgin Islands v. Byers,
Defendant cites United States v. Gaines,
Defendant also appears to assert that an elevated level of review (“extreme circumspection”) is required in a capital case before the Court allows DNA evidence to be presented to the jury. [Doc. No. 442, pp. 30-31, 108, 145, 147] But Defendant does not provide relevant, persuasive authority to support this assertion. Defendant argues that juries may be overwhelmed by DNA evidence, which may “ ‘assume a posture of mystic infallibility in the eyes of a jury,’ ” quoting People v. Venegas,
In support of his general argument that a higher standard for admission of scientific evidence is required because this is a capital offense, Defendant cites United States v. Green,
The Court concludes that Defendant has not demonstrated that a heightened standard of admissibility applies to this scientific evidence. “[Application of the ordinary rules of evidence generally does not impermissibly infringe upon a capital defendant’s constitutional rights,” including the Eighth Amendment. People v. Eubanks,
The Court concludes that Defendant has not provided relevant and persuasive authority for his assertion that an elevated
(d) Policy and principles underlying Rule 702 and Daubert
Defendant’s argument requires the Court to determine the extent of its role as gatekeeper. An authoritative treatise recognizes and discusses this issue, observing that “the extent of the trial judge’s gatekeeping function” is “[pjerhaps Daubert’s most serious ambiguity.” 29 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6266, at 287 (1997 & Supp.2012). Daubert does state that “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert,
Despite Daubert’s statement that the trial judge must ensure that any scientific evidence admitted is reliable, other language in Daubert shows that the Court intended the jury to resolve many reliability issues — including those considered under the Frye standard as too difficult or overwhelming for a jury. Id. at 288. The Daubert Court rejected the argument that “befuddled juries” would be “confounded by absurd and irrational pseudoscientific assertions.” Daubert,
Wright states that the “narrowest reading of Daubert is that it reaffirms in most cases the jury’s traditional power to weigh expert testimony in light of challenges to its reliability.” Id. at 289. Under this interpretation, the trial judge decides the scientific validity of underlying principles and methodology; once that validity is demonstrated, other reliability issues go to the weight — not the admissibility — of the evidence. Id. And the gatekeeping role may be further reduced because, as Daubert observed, judicial notice may be taken of the validity of well-established science. Id. (citing Daubert,
Wright concludes that “the broadest reading of Daubert” — the one which Defendant McCluskey advocates — “should be rejected.” Id. at 290. “[I]t is inconsistent with both policy and precedent to make the admissibility of all expert testimony depend upon a showing that the expert’s testimony is completely reliable in every respect.” Id. at 290-91. “Since Daubert does not explicitly take such a position,
Wright generally favors the narrow reading of Daubert, citing the principle that “trial judges are gatekeepers, not armed guards.” Id. § 6266, at 88 & n. 79.2 (Supp.2012) (citing Ruiz-Troche v. Pepsi Cola,
The Court concludes that Defendant’s position runs contrary to the policy and principles underlying Rule 702 and Daubert.
(e) Conclusion on standard for review of challenges to procedures
Based on review of the arguments, the caselaw, and Rule 702’s policies, the Court rejects Defendant’s argument that each part of the procedure and each item used in the procedure are subject to the same Daubert analysis for admissibility as the PCR/STR methodology. The Court concludes that well-reasoned caselaw supports a distinction between methodology and application of that methodology. If the Court were to scrutinize each procedure and each item used with the same intensity, and under the same standards, as the court reviews the methodology itself, the court would run afoul of the philosophy and principles of Daubert — to respect the “liberal thrust” of the Federal Rules by “relaxing the traditional barriers to ‘opinion’ testimony.” Daubert,
As discussed above, the approach.of the Eighth and Third Circuits is somewhat more restrictive than the approach of the First and other Circuits. In view of the challenges raised by Defendant in this case and discussed below, however, it is not necessary for this Court to choose between these two approaches. Even under the more conservative approach of the Third and Eighth Circuits, Defendant’s challenges do not rise to the level of flaws that would undermine or skew the PCR/STR methodology itself.
2. NMDPS Laboratory Standards and Controls
The Government states that the NMDPS DNA Laboratory used the follow
The Government states that the NMDPS Laboratory follows the Quality Assurance Standards (QAS) originally issued in 1998 by the FBI Laboratory’s DNA Advisory Board (DAB), and revised in 2007 and 2011 by the Scientific Working Group on DNA Analysis Methods (SWGDAM). [Doc. No. 547, pp. 18, 22 (citing Defendant’s Ex. K6 & L6)] The NMDPS Laboratory is audited annually for compliance with these standards. [Doc. No. 547, p. 18 (citing Defendant’s Ex. K6 & L6) ] The NMDPS lab conducts an internal audit every other year, with an external audit by scientists from other DNA laboratories conducted in the intervening years. [Doc. No. 547, p. 18] “These assessments are a systematic examination, conducted pursuant to FBI guidelines, which audits the facilities and equipment, the training of staff, the laboratories’ written operating and technical procedures, and the casework reports and supporting documentation.” [Doc. No. 547, p. 18 (citing Defs Ex. K6 & L6) ]
The Government states that the NMDPS Laboratory is accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASCLD/LAB), and was accredited at the time of testing. [Gov’s Ex. 1 (6/25/12); Doc. No. 547, pp. 9, 19] “The accreditation process not only involves the audits, but also whether the laboratory demonstrates and maintains good lab practices including evidence-handling procedures and preservation of chain-of-custody.” [Doc. No. 547, p. 19]
The NMDPS Laboratory participates in proficiency tests of its analysts’ performance in DNA analysis procedures. [Doc. No. 547, p. 19] “The QAS, issued by the FBI and followed by the NMDPS Laboratory, requires that each DNA analyst undergo an external proficiency test at least twice a year.” [Doc. No. 547, p. 19] All casework conducted by NMDPS Lab analyst, Carrie Davis, is reviewed and confirmed by a second analyst before a case report is released. [Doc. No. 547, p. 20 (citing Defs Ex. M6 (Chapter 15))] The Government states that, in addition to following the FBI’s QAS, the NMDPS Lab has established rigorous standards for technical procedures and policies, undergoing proficiency testing, internal validation, and performance checks. [Doc. No. 547, pp. 22-23 (citing Defs Ex. K6 & L6) ] In addition, the NMDPS Lab routinely conducts internal validations on the equipment, and reviews and adopts standards suggested by SWGDAM and external literature. [Doc. No. 547, p. 23 (citing Gov’s Ex. 2, 3, 7, 8, 9 (6/25/12)) ]
The Government confirms that all of these controls were followed in this case. [Doc. No. 547, p. 23] These controls and standards support the Court’s conclusion that the PCR/STR testing employed by the NMDPS Lab meets the standard of reliability under Rule 702 and Daubert. See Daubert,
3. Identifiler and Quantifiler kits
Defendant argues that the kits used by the NMDPS Laboratory, the Identifiler
Defendant argues that, although four cases “specifically upheld the admissibility of the Profiler Plus and/or Cofiler test kits ... it is important to note that none of the cited cases addressed ... the Quantifiler and Identifiler kits” which were used in this case. [Doc. No. 442, p. 96] In a footnote, Defendant observes that only one case, Jackson, addressed the admissibility of the Identifiler kit. [Doc. No. 442, p. 96 n. 53] People v. Jackson,
The Government responds that the California case, Jackson, determined that the use of a new kit, the Identifiler, did not change the methodology but increased the accuracy and efficiency of the analysis. [Doc. No. 547, p. 35] The Government alternatively argues that the Identifiler and Quantifiler Duo kits have been sufficiently validated and shown to be reliable. [Doc. No. 547, pp. 36-40]
In assuming that only caselaw specifically addressing the Identifiler and Quantifiler Duo kits is relevant, Defendant assumes his conclusion: that this Court, in its gatekeeping role, must subject any procedure or instrumentality used in applying a methodology to the same Daubert analysis for admissibility as the methodology itself. But this Court has concluded that a challenge to the application of the methodology is treated differently than a challenge to the reliability of the methodology itself. Alternatively, Defendant is assuming that these kits are part of the methodology. The Court also finds that the Identifiler and Quantifiler Duo kits are not part of the methodology under Daubert, but are instead part of the procedures used in applying that methodology.
Under the legal standard adopted above, the Court concludes that Defendant’s challenges to the Quantifiler Duo and Identifiler kits go to the weight of the DNA evidence, not its admissibility — unless the challenges would demonstrate such a major flaw that it would undermine or skew the PCR/STR methodology itself. The challenges Defendant makes do not rise to the level of undermining, or skewing, the PCR/STR methodology; Defendant’s challenges therefore go to the weight and not the admissibility of the evidence, and are for the jury to assess and resolve.
Courts addressing the use of new amplification and quantification kits have focused, not on the relatively minor differences between each kit, but instead on their common function in the application of DNA analysis. In a frequently cited case, the district court of Delaware determined that “the Cofiler and Profiler materials kits do not represent a separate part of the typing process, but rather, simply contain materials for beginning the PCR process.” Trala,
In Shreck, the DNA evidence was derived from a PCR/STR multiplex system — the Profiler Plus and Cofiler kits, which use “a combination sixplex and nineplex system.” Shreck,
The Eighth Circuit also held that a defendant’s challenge to the kits used constituted “a challenge to the application of the STR methodology” — not a challenge to the methodology itself. United States v. Gipson,
In addition, caselaw from jurisdictions applying the Frye test supports the con
Defendant’s Reply erroneously asserts that the Government cannot rely on a Frye case here for the same reason that the Government argues Defendant cannot rely on Venegas on other points — because Jackson and Venegas apply the Frye test instead of Daubert. [Doc. No. 562, p. 6]
The Court finds these opinions, particularly Trata, Shreck, and Gipson, well reasoned and persuasive. The Court concludes that Defendant’s challenges to the Identifier and Quantifier Duo kits constitute challenges to procedure or application, rather than challenges to the PCR/STR methodology itself; the Court also concludes that these challenges do not rise to the level of alleging major flaws that would skew or undermine the PCR/STR methodology. Defendant’s challenges therefore go to the weight of the DNA evidence, not to its admissibility.
Moreover, even if it were necessary for this Court to make a preliminary determination under Daubert of the scientific reliability of the Identifier and Quantifier Duo kits, the Court would find that there is sufficient evidence to support a finding of reliability. First, the Identifier kit has been tested, subjected to peer review and analysis, and shown to have an acceptable error rate. See Daubert,
The Court would also find the Quantifiler Duo kit reliable, if a preliminary finding of reliability were required. The manufacturer, Applied Biosystems, performed developmental validation experiments according to SWGDAM guidelines and DNA Advisory Board Quality Assurance Standards. [Gov’s Ex. 18 & 19 (6/25/12) ] The Government asserts that internal validations were also conducted by laboratories. [Doc. No. 547, p. 38] These exhibits suggest that this kit has been sufficiently validated, reviewed and analyzed; validation suggests that the error rate is acceptable. Defendant generally claims that the quantification kit is “unreliable,” citing a study and speculating that some suggested steps to ensure accuracy might not have been followed. [Doc. No. 442, pp. 45-52] The Court finds that such challenges go to the weight of the DNA evidence, not its admissibility, and are matters which Defendant can address at trial through cross-examination or presentation of contrary evidence.
In addition, the Government states that the systems used in this case are “the industry standard for DNA testing.” [Doc. No. 547, p. 4] The existence and maintenance of standards in DNA testing, and use of kits which are “the industry standard” supports a finding of reliability; if the scientific community performing DNA analysis accepts these kits, that supports a finding by the Court that they are reliable enough for admission and assessment by the jury. See Daubert,
4. Other Procedures and Instrumentalities
The same principles discussed in the preceding sections apply to other parts of the DNA process. Challenges to the procedures or instrumentalities go to the weight of the DNA evidence, and not its admissibility — unless the challenges rise to the level of showing a major flaw that undermines or skews the PCR/STR methodology itself.
The Government states that the NMDPS Laboratory follows the FBI’s DAB QAS, conducting its own internal validations and performance checks and running negative controls at every step in the testing. [Doc. No. 547, p. 39] The Government states that the “systems and machines” used are “the industry standard
The Government provided some material to show reliability of the GeneMapper ID software, Version 3.2, and the Applied Biosystems 3130 Genetic Analyzer; these exhibits show validation by the manufacturer. [Gov’s Ex. 21-22 (6/25/12) ] Government’s Exhibit 23 indicates that the 3130 Genetic Analyzer was shown to produce “rehable and reproducible results” through vahdation studies designed in accordance with SWGDAM guidelines. [Gov’s Ex. 23 (6/25/12), p. 1]
The Government states that the NMDPS Laboratory validates the use and performance of its laboratory automation feature; the Maxwell 16 Robot/Liquid Handler Operation, following' SOP. [Doc. No. 547, p. 39] Defendant refers to an external audit stating that these robotic instruments had no preventive maintenance in 2010; a memo states that since funding for service contracts was in question and the FBI QAS does not require preventative maintenance, the SOP was changed to state annual preventative maintenance as a goal rather than a requirement. [Doc. No. 442, pp. 40-41] Defendant makes no specific challenge to the operation of this robotic system, however, and the Government states that SOP requires controls and checks each time the robot is used. [Doc. No. 547, p. 39]
Capillary electrophoresis, the procedure used to analyze the amplified DNA fragments, has been found to be “generally accepted” in the scientific community, under the Frye test. Jackson,
Defendant makes some conclusory, general challenges — a number of which concern procedures and instrumentalities not used in this case. [E.g., Doe. No. 442, pp. 172-73]
The Court need not further address Defendant’s challenges to the procedures and methods used, because all of the deficiencies alleged by Defendant, even if substantiated, would go to the weight of the DNA evidence, not to its admissibility. See Beasley,
Even if more were required here, the Court would still find that Defendant’s challenges go to weight rather than admissibility. The NMDPS Laboratory performs validation and checking, and follows general controls and standards. The Court finds that the existence and mainte
Defendant can make these challenges at trial. To the extent that scattered suggestions of problems are contained in Defendant’s Memorandum and Reply, the Court finds that these are generally conclusory and speculative, without persuasive citation to authority. See Cahill,
5. Contamination Controls
Defendant suggests that there may have been contamination, argues that there must be procedures to prevent and detect contamination, and generally argues that more stringent procedures could be followed and were not in this case. [Doc. No. 442, pp. 55-59, 67, 81, 151-63] Defendant does acknowledge: “The NMDPS has detailed procedures in its SOP for setting up and conducting PCR amplification and for protecting against the ever present danger of contamination.” [Doc. No. 442, p. 59] Defendant then states that it is not possible to tell whether these procedures were followed from the documentation provided and suggests that a pretrial evidentiary hearing is required to find out. [Doc. No. 442, p. 59] Defendant implies, without any supporting authority, that contamination is a greater problem with the Identifiler kit. [Doc. No. 442, p. 101] Defendant also asserts that he has demonstrated in his memorandum that “stringent contamination and other safeguards for this testing advocated by its proponents” have not been followed. [Doc. No. 442, pp. 101-02] Defendant also suggests the possibility of human error — for instance, mislabeling of samples. [Doc. No. 442, p. 67, 81]
The Government states that Davis collected and supervised collection of DNA evidence in this case, and that the NMDPS Laboratory sets standards for evidence collection and proper storage during analysis within its Quality Assurance Manual. [Doc. No. 547, p. 31 (citing Def s Ex. J6)] “The NMDPS Laboratory specifically follows the FBI’s QAS.” [Doc. No. 547, p. 33] The NMDPS Laboratory “follows a documented evidence/database sample control system to ensure the integrity of physical evidence and database samples,” including well-documented chain-of-custody tracking. [Doc. No. 547, p. 32] Measures to control contamination include lab coats, gloves, and face masks; analysts take only the amount of sample needed; laboratory access is restricted. [Doc. No. 547, pp. 32-33] In addition, “[n]egative controls are run with each test, which shows if contamination is present.” [Doc. No. 547, p. 33.] And the Government states that no “corrective actions were noted in this case,” indicating that the controls were applied and showed that there was no contamination. [Doc. No. 547, p. 33 n. 36]
The Government asserts that all of these conditions, controls, and procedures were followed in this case. [Doc. No. 547, p. 33] The Government argues that Defendant cites no support for his assertion that proper procedures were not followed. [Doc. No. 547, p. 32 n. 34] The Government also argues that any deficiencies as to controls, procedure, or chain of custody go to the weight and not the admissibility of the DNA evidence. [Doc. No. 547, p. 33]
The Ninth Circuit addressed challenges similar to Defendant’s in United States v.
“Those concerns may arise with respect to any forensic evidence. The potential for contamination may present an open field for cross-examination or may be addressed through the testimony of defense experts at trial, as is true with other forensic evidence. However, it does not mean that the PCR method itself is inappropriate for forensic use. The possibility of human error does not prevent scientists from relying on scientific analysis if safeguards against such errors exist and are followed. Courts do not require that scientific tests be infallible to be admissible.”
Hicks,
In another case, the Eighth Circuit upheld the trial court’s ruling that challenges to the PCR method based on potential contamination go to weight and not admissibility; the Eighth Circuit held that the defendant failed to show that these alleged deficiencies “so altered the PCR methodology as to make the test results inadmissible.” Beasley,
It is important that the testing laboratory employ procedures to avoid contamination. Hicks,
The Court concludes that Defendant’s vague, speculative suggestions that there may have been contamination or mislabel
In a footnote, Defendant suggests that there may be reports of incidents of DNA contamination in the NMDPS Laboratory, which he has not received; Defendant states that he “hereby moves for disclosure of any such reports under Brady.” [Doc. No. 442, p. 83 n. 49] If this is an issue Defendant wishes to pursue, the Court advises that he should file a motion, under the appropriate procedure.
6. Chain of Custody
Defendant makes general assertions that the chain of custody is important and must be shown. [Doc. No. 442, pp. 151— 54]
The Government responds that the NMDPS Laboratory sets forth documentation of evidence and proper storage within its Quality Assurance Manual, and that the Laboratory specifically follows FBI QAS. [Doc. No. 547, pp. 31-33 (citing Defs Ex. J6) ]
The Government is correct that any deficiencies in the chain of custody go to the weight of the evidence, not its admissibility. [Doc. No. 547, p. 33] The Tenth Circuit has observed that the “chain of custody need not be perfect for the evidence to be admissible.” United States v. Yeley-Davis,
7. Mixtures and Analysis
Defendant suggests the possibility of problems with the guidelines for interpreting mixtures. [Doc. No. 442, p. 84-85]
The Government states that the NMDPS Laboratory has “conducted studies to define the limitations of the typing system and to examine the peak height ratios, and range of stutter percentages for each allele of each locus in forming its SOP.” [Doc. No. 547, p. 23] When a mixture DNA profile is detected, the NMDPS SOP requires careful examination to determine whether there are two or more individuals within the profile, and, if so, whether a major and minor contributor can be determined. [Doc. No. 547, pp. 23-24] “The testing methods or the procedure itself does not change when it is a mixed sample, rather it is the identification of alleles which allows the analyst to conclude that a sample is mixed.” [Id. p. 24] “Thus, the presence of a mixed DNA sample is a conclusion, not an input that requires a different type of testing or specialized expertise.” [Id.]
The NMDPS SOP requires that inclusions in mixtures be described conservatively, using the language “cannot be eliminated” rather than “included”; similarly, when a mixture contains a secondary standard, as in this case, the language used is “consistent with” instead of a source attribution. [Doc. No. 547, pp. 26-27] Thus, in dealing with the secondary standards from Gary and Linda Haas, because it was not
The Government states that the NMDPS Laboratory’s SOP “discusses mixtures in some depth,” and tracks the SWGDAM recommendations for testing and interpreting mixture samples. [Doc. No. 547, p. 26] The NMDPS Laboratory follows the 2010 suggestions of the SWGDAM Mixture Committee. [Doc. No. 547, p. 26]
As the Government observes, citing studies, mixtures are routinely found and analyzed in forensic science; this is not a novel issue in DNA analysis. [Doc. No. 547, p. 24] See Whittey,
The Court concludes that Defendant’s challenges go to the weight and not the admissibility of the DNA evidence — with the exception of mixtures which constitute LCN testing, as discussed in Section (D)(4)(E) below. The Court finds that it is important that the NMDPS Laboratory has standards and protocols in place and follows SWGDAM recommendations. See Daubert,
Defendant also asserts that the analyst failed to follow NMDPS Laboratory SOP when she typed and interpreted evidentiary samples after the known samples from decedents and defendants. [Doc. No. 442, pp. 63-65, 41-42] The Government responds, however, that the NMDPS Laboratory follows the SWGDAM suggestion, requiring that, “to the extent possible, DNA typing results from evidentiary samples are interpreted before comparison with any known samples, other than those of assumed contributors.” [Doc. No. 547, p. 26]
Defendant asserts that there was a “biasing effect” when the analyst knew the DNA profiles of the decedents and suspects before she analyzed many of the evidence samples. [Doc. No. 442, p. 71] The Government responds that analysts often have known standards before analyzing evidence, and that the process of comparing known standards to the evidence “is a reliable method in DNA analysis.” [Doc. No. 547, p. 34 (citing Butler, Advanced Topics 2) ] The Government also states that the “actual DNA testing of the samples gathered in evidence in this case was completed before consideration of the
8. Statistics
(a) Statistics and qualitative terms
Defendant argues that DNA evidence cannot be admitted without statistical data, and also objects to testimony that Defendant is “the source” of any DNA. [Doc. No. 442, pp. 108-33, 167] Defendant also argues that statistical data “must be generally accepted within the scientific community pursuant to Frye v. United States [
Defendant argues that, unless statistical calculations are included, testimony is inadmissible if it uses only qualitative terms — i.e., that a DNA profile is “consistent with” a sample, or that a person “cannot be eliminated” as a contributor to the sample; Defendant argues that these terms cannot be understood and evaluated “without statistics.” [Doc. No. 442, pp. 110-19] The Government states that the NMDPS Laboratory’s SOP establishes the language to be used regarding mixtures, and that the language used is conservative (e.g., “cannot be eliminated” rather than “included”). [Doc. No. 547, p. 26] In his Supplemental Memorandum, Defendant states that “no statistical estimates have been made with respect to many samples in this case.” [Doc. No. 442, pp. 116, 25] The Government responds that statistics have been included — in the reports or in the case notes, which were provided to Defendant (but not all of which were provided, in their entirety, to this Court); in addition, Davis amended her report to include statistics for conclusions that a sample was “consistent with” Gary Haas or Linda Haas. [Doc. No. 547, p. 25 n. 27] In addition, the Government’s Response includes statistics for source attributions made to Defendant on Items 11322A, 1132213, 11322C, and 11339A. [Doc. No. 547, p. 48] Defendant’s Reply does not reassert that random match probabilities have not been provided. It appears that there is no issue to resolve here; the parties appear to be in agreement that statistical calculations can and will be provided at trial in addition to qualitative terms.
The Government states that the NMDPS Laboratory follows the recommendations of NRC II. [Doc. No. 547, pp. 50-52] NRC II explicitly endorses use of the “product rule” to determine the probability of finding a similar match if a DNA sample were drawn randomly from the population. NRC II, at pp. 5, 122; see Whittey,
The statistics are offered to help the jury evaluate the significance of the DNA evidence. The Court finds that Defendant’s challenges go to the weight of the DNA evidence, not its admissibility. First, some of these challenges are in the nature of challenges to the expert’s conclusions, and therefore not to be considered as bases for exclusion. Daubert,
The Court finds that use of qualitative terms, along with statistics, is relevant, admissible, and will assist the jury in understanding the DNA evidence. See Fed. R.Evid. 401; Fed.R.Evid. 402; Fed. R.Evid. 702. In addition, the Court finds that the probative value of these qualitative terms, along with statistical calculations, is not substantially outweighed by any prejudicial effect. See Fed.R.Evid. 403.
(b) Source attribution
Defendant argues strenuously that the Court should preclude evidence that Defendant is the “source” or the “sole source” of DNA evidence, “to the exclusion of all other people in the world.” [Doc. No. 442, pp. 23, 119, 133] Defendant overstates the evidence the Government apparently intends to present. The laboratory reports conclude: “To a reasonable degree of scientific certainty, John McCluskey is the source of the major DNA profile resolved from these mixtures.” [Def's Ex. G6, Sept. 30, 2010 lab report (emphasis added) ] This is a significantly different opinion than in Defendant’s overstatement.
Defendant cites a number of cases involving ballistics- testimony. These cases might support Defendant’s argument if Defendant’s characterization of the expert’s testimony were not an overstatement. These cases, however, approved language generally equivalent to the language of the Government expert’s laboratory reports, and do not, therefore support Defendant’s argument in this case. Thus Defendant cites Green, but the language excluded in Green was substantially more absolute than the language of the
The cases cited by Defendant, discussed in the preceding paragraph, support admission of the type of language related in the Government’s laboratory reports: “To a reasonable degree of scientific certainty, John McCluskey is the source of the major DNA profile resolved from these mixtures.” [Defs Ex. G6, Sept. 30, 2010 report, p. 2 (emphasis added) ]
Defendant cites a number of authorities and laboratories that reject the use of source attribution. [Doc. No. 442, pp. 121-32] Defendant submitted an affidavit from Dr. Laurence D. Mueller, Ph.D., giving his opinion that a source attribution “is not based upon sufficient facts or data and is not the product of reliable scientific principles” and is not “the consensus” of the scientific community. [Defs Ex. Y6, pp. 3, 6] Dr. Mueller, however, acknowledges that NRC II takes the opposite view. [Id. pp. 5-6] See NRC II, p. 195. Perhaps Dr. Mueller is expressing the view that under Frye — which is still followed in California — source attribution does not meet the Frye test of “general acceptance”; Dr. Mueller’s statement that this is not “the consensus” suggests that conclusion. The Court observes that, in federal court, “consensus” and “general acceptance” is not the standard. In addition, part of the basis for Dr. Mueller’s opinion is the potential for laboratory error-another issue on which Dr. Mueller disagrees with NRC II. [Defs Ex. Y6, p. 5] See NRC II, p. 87.
The Government cites authority for allowing a source attribution, stating that the FBI adopted a policy in 2000 of using source attribution. [Doc. No. 547, p. 46] The Government states that some prominent scientists approve source attribution. The Government also states that the NMDPS Laboratory follows the NRC II guidelines. [Doc. No. 547, p. 47 & n. 52, pp. 51-52] The Government states that SWGDAM guidelines allow a laboratory to use source attribution statements, provided that the laboratory has established guidelines, and that the NMDPS Laboratory has established guidelines based on NRC II and the FBI protocol — allowing a source attribution when the random match probability is 1 in 260 billion or less. [Doc. No. 547, p. 49-50] The Government states that it has provided statistical information
Some courts have held that a “source attribution” is admissible without presentation of the random match probability figure or other statistical calculation. A federal district court in Maryland, relying on NRC II and on an opinion from the highest state court of Maryland, held that there is no scientific basis for requiring statistics when the random match probability is “sufficiently infinitesimal” that the profile can be considered unique (absent identical twins, or maybe close relatives). United States v. Davis,
Opinion testimony about uniqueness would simplify the presentation of evidence by dispensing with specific estimates of population frequencies or probabilities. If the basis of an opinion were attacked on statistical grounds, however, or if frequency or probability estimates were admitted, this advantage would be lost. Nevertheless, because the difference between a vanishingly small probability and an opinion of uniqueness is so slight, courts that decide on a criterion for uniqueness and determine that the criterion has been met may choose to allow the latter along with, or instead of, the former, when the scientific findings support such testimony.
NRC II, p. 195 (quoted by Davis,
In other cases, state courts have required that DNA evidence be accompanied by statistics indicating the significance of the match. See, e.g., Commonwealth v. Mattei,
The Court recognizes that there are differences of expert opinion on source attribution. Admissibility under Rule 702 and Daubert does not require consensus, however, and the Court could conclude that this is an issue on which expert opinion on both sides is reliable enough for admission. A “battle of experts” is for the jury to resolve. See Morrow,
The federal district court in Davis observed that it had “broad discretion” to ensure that evidence was presented in an effective and efficient manner. Davis,
The Government has statistical calculations for its DNA evidence. And the Court believes that Defendant intends to vigorously challenge the DNA evidence and the statistical calculations underlying the expert’s opinions. As in Davis, the Court believes that the interest in clear and effective presentation of evidence to the jury will be served by having the Government present its statistical calculations in its case in chief; the Court finds that the interest in having the evidence clearly presented to the jury outweighs the Government’s interest in presenting expert conclusions without supporting statistics. The Court concludes that, when otherwise admissible, the Government will be able to present testimony that, to a reasonable degree of scientific certainty a person is “the source” of a DNA sample; however, the Government is ordered to also present the accompanying statistical calculations on direct examination of its expert.
Using a shotgun approach, Defendant argued that testimony giving a source attribution “is inadmissible under Rules 402, 403, and 702, as well as under Daubert and the due process, fair trial, and cruel and unusual provisions of the Fifth, Sixth, and Eighth Amendments to the Constitution.” [Doc. No. 442, p. 109] Since Defendant fails to cite specific, persuasive authority for most of these bases, however, and the Court need not develop Defendant’s conclusory arguments or address arguments unsupported by authority, the Court declines to address most of these points. See Cahill,
(c) Laboratory error rate
Citing some authority that laboratory error rates should be considered, Defendant argues that statistical calculations are inadmissible if they do not include a measure of laboratory error. [Doc. No. 442, pp. 136-39, 91-92; Doc. No. 562, p. 4 n. 2] Defendant is not asserting that there was error in this case, but is instead arguing that the statistical calculations should take into account the potential for error based on a general error rate for all laboratories over time, or perhaps for this particular laboratory over time. The Government argues that challenges regarding laboratory error rates go to the weight of
Defendant recognizes that NRC II recommends that laboratory error rates not be combined with match probabilities, but asserts that this recommendation should not be followed. [Doc. No. 442, p. 138] Defendant quotes the 2009 report of the National Research Council, NRC (2009), p. 121. [Doc. No. 442, pp. 139, 92; Doc. No. 562, p. 4 n. 2] Although this quotation recognizes that it would be good to explore and determine error rates, it stops short of recommending that they be included in statistical calculations — as Defendant argues — and does not suggest determination of laboratory error rate as a prerequisite to admissibility.
Defendant also cites a Mississippi ease, Watts v. State,
As Defendant recognizes, the National Research Council recommended in 1996 that laboratory error rates not be included in random match probabilities:
[W]e believe that a calculation that combines error rates with match probabilities is inappropriate. The risk of error is properly considered case by case, taking into account the record of the laboratory performing the tests, the extent of redundancy, and the overall quality of the results.
NRC II, p. 87. “The courts have almost uniformly followed the recommendation of the National Research Council.” State v. Tester,
“NRC II was deeply skeptical that a ‘general error rate’ based on the performance of different laboratories operating at different times ... would be reliable or meaningful.” Roberts,
The Court notes that Defendant makes a speculative suggestion that he may not have been able to re-test some samples, which may have been consumed in testing, which may have been contrary to QAS. [Doc. No. 442, p. 38] The Government states that: evidence “has been available since August 2010 for Defendant to view, examine, or re-test”; “[a]t no point has Defendant requested any re-testing”; and “the DNA extract is retained and available to re-test.” [Doc. No. 547, p. 33 n. 35] The Court notes that Defendant does not assert that he made any request or attempt to re-test samples, that it has not been established as a factual matter that he could not have re-tested samples, and also that the QAS Defendant cites are not violated if it was not “possible” or “feasible” to retain portions of samples for re-testing. [Doc. No. 442, p. 38 & n. 15] No issue here is presented or ripe for decision.
Thus courts hold that challenges based on laboratory error rate go to the weight of the DNA evidence, not its admissibility. Beasley,
Defendant’s argument on this score exhibits a fundamental misunderstanding of the principles of Daubert. The Court’s concern under Rule 702 and Daubert is the reliability of the scientific methodology at issue, not the reliability of the laboratory performing the test. Put simply, “[a] laboratory’s error rate is a measure of its past proficiency and is of little value in determining whether a test has methodological flaws.” Shea,957 F.Supp. at 340 . What the defendant has sought to do here is challenge the proficiency of the tester rather than the reliability of the test. Such challenges go to the weight of the evidence, not its admissibility.
Morrow,
In addition to the possibility of re-testing the DNA sample, the adversary system provides effective means for Defendant to challenge the Government’s DNA evidence on the basis of laboratory error. Defendant is free to cross-examine the lab analyst. See Hicks,
Considering the recommendation of the NRC II report, and the great weight of authority in the caselaw, the Court concludes that a “general error rate” is not a prerequisite to admissibility of the Government’s random match probability statistics. Challenges based on laboratory error rates go to the weight of the DNA evidence, not its admissibility.
Defendant also argues that presentation of random match probabilities without including an estimate of laboratory error rate would be “more misleading than probative under Rule 403.” [Doc. No. 442, p. 140] In view of the NRC II recommendation, and the explanation quoted above from the Morrow court, the Court does not find that the probative value of statistical calculations that do not include a laboratory error rate would be substantially out
(d) Weak statistical significance
Defendant argues that the frequencies for probability of inclusion on three samples are of such weak significance that the DNA evidence should be excluded. [Doc. No. 442, pp. 118, 135-36] Defendant cites authority for his argument only under Rule 403. Defendant, in shotgun style, lists as additional bases for exclusion: Rule 402, Rule 702, Daubert, and “the Due Process, Fair Trial, and Cruel and Unusual Provisions of the Fifth, Sixth, and Eighth Amendments to the Constitution”; this listing appears only in the heading of Defendant’s pleading. This Court need not address conclusory arguments for which no authority is provided. See Ca-hill,
For some populations, the laboratory reports show relatively high probabilities of inclusion for the Caucasian population: 1B22D — 1 in 12 (swab of Smith & Wesson handgun; Sept. 30, 2010 report, p. 3); 1B72B — 1 in 9268 (swab of Smith & Wesson handgun; Dec. 22, 2010 report, p. 4); and 31 e — 1 in 21 (swab of passenger side front door of Haas pickup; Dec. 22, 2010 report, p. 5). [Defs Ex. G6, laboratory reports] Defendant’s argument is that the jury may place too much weight on relatively weak statistical evidence.
Under Rule 403, the Court must balance the probative value against the prejudicial effect of this evidence. See United States v. Smith,
The probative value of these three items of evidence appears to be great, in linking Defendant to handguns and to the Haases’ pickup truck. See Bonds,
Courts are reluctant to set a threshold on the level of statistical significance, and have admitted DNA evidence when its statistical significance was relatively low. See United States v. Graves,
In Graves, the random match probabilities were: 1 in 2,900 for the left shoe; 1 in 3,600 for the right shoe; and 1 in 2 for an umbrella. Graves,
A Vermont court upheld admission of a 1 in 12 match probability for mitochondrial DNA evidence. State v. Brochu,
Defendant cites United States v. Nat-son,
The Court is persuaded by the approach of the cases that liberally allow admission of DNA evidence of relatively low statistical significance. These cases properly acknowledge the liberal standard of admission under Daubert and the Federal Rules, and the general presumption in favor of admission of “shaky evidence” with the danger of undue weight being countered by vigorous cross-examination, presentation of contrary expert witnesses, and the possibility of jury instructions to explain the issues. The Court recognizes that the 1 in 12 statistic is relatively high. But the Court finds that the probative values of these three pieces of DNA evidence are not substantially outweighed by
In making this decision, the Court is influenced by the decreased possibility of prejudice when the jury compares these high statistical probabilities with the very low random match probabilities of other items of evidence. The court in Morrow observed that the low statistical significance “actually benefits” the defendants, allowing them to argue that “hundreds, if not thousands, of others in the Washington, D.C. area cannot be excluded as possible contributors as well”; this line of attack would allow the defendants to significantly reduce any prejudice. Morrow,
The Court finds that the probative values of Items 11322D, 1137213, and 31e are not substantially outweighed by any prejudicial effects.
(e) Population databases
Defendant argues that the statistical calculations were improperly restricted to five groups. [Doc. No. 442, p. 140] The Government states that the NMDPS Laboratory uses the FBI CODIS Popstats program, with the databases of African American, Apache, Caucasian, Navajo, and Southwest Hispanic to represent the overall population of New Mexico. [Doc. No. 547, p. 51]
Defendant relies heavily on the Nebraska case of State v. Carter,
Defendant cites the unpublished district court opinion in Peters in support of an argument that the Government should not be allowed to “limit[] the statistical evidence to only five distinct groups.” [Doc. No. 442, p. 141] United States v. Peters, Cr. No. 91-395-SC,
NRC II states that statistics should be based on the most relevant population or populations. NRC II, p. 127. The Government asserts that the five groups used do represent the overall population of New Mexico. Defendant appears to assert, without persuasive and specific authority, that some additional databases should be used. Defendant appears to raise an argument under Rule 403, asserting that statistics based on the five groups would mislead the jury. [Doc. No. 442, p. 142] The Court finds that the probative value of the DNA evidence, based on the five databases, is not substantially outweighed by the danger of unfair prejudice. The Court also determines that Defendant’s challenges to the statistical calculations, as discussed above, go to the weight of the DNA evidence, not its admissibility under Rule 702.
E. Low Copy Number (LCN) Testing
(1) Item 1B23B
The Government argues that its DNA evidence on Item 1B23B (swab from bottom of Smith & Wesson magazine) is admissible under Daubert and Rule 702. Davis’s lab report states her conclusion that Item 1B23B is a single source sample and that its source was Tracy Province, based on a match at 11 out of 15 loci:
A partial DNA profile was obtained from item 1B23B (at 11 of the 15 loci). To a reasonable degree of scientific certainty, Tracy Province is the source of this partial DNA profile.
[Defs Ex. G6, Sept. 30, 2010 report, p. 3] The amount of DNA in Item 1B23B is 215 picograms (pg) — making this a Low Copy Number (LCN) result, according to the NMDPS Lab’s protocol. [Tr. 5/6/13, p. 142]
Defendant argues that Low Copy Number (LCN) DNA testing “is not considered generally reliable even in the forensic science community.” [Doc. No. 442, p. 87] Defendant also suggests that there may be “many more LCN samples,” in addition to the one identified by the Government, possibly some of the mixed samples. [Doc. No. 442, p. 87]
On May 6-7, 2013, the Court held an evidentiary hearing on the issue of admissibility under Daubert and Rule 702 of LCN testing results. Defendant was present at this hearing. The Court had directed the parties to address a number of questions on LCN testing — including admissibility of DNA evidence on Item 1B23B, and whether evidence from any other samples, including mixed samples, constitutes LCN testing “with respect to any contributor for whom the Government intends to introduce testing results.” [Doc. No. 895, p. 2] The Court heard testimony from three witnesses: Dr. William Watson and Carrie Zais Davis for the Government, and Dr. Dan Krane for Defendant. The Court admitted into evidence approximately 100 additional exhibits. [Tr. 5/7/13, pp. 403-04]
When there is too small a sample, the DNA testing (which would otherwise be reliable and yield results admissible under
Laboratories may set an “empirically determined threshold (usually termed a ‘stochastic threshold’)” to establish a sample quantity which puts a sample “in the potential danger zone of unreliable results.” John M. Butler, Advanced Topics in Forensic DNA Typing 339 (Academic Press 2011) [Gov’s Ex. 34a (5/6/13) ]. “For example, if the total amount of measured DNA is below 150 pg, a laboratory may decide not to proceed with PCR amplification assuming that allelic drop-out due to stochastic effects is a very real possibility.” Id. “Alternatively, a laboratory may proceed with testing a low-level DNA sample and then evaluate the peak height signals and peak ratios at heterozygous loci.” Id.
Most laboratories in the U.S. do not perform LCN testing. There are few reported U.S. cases on LCN testing. According to a New York court, the New York City Office of the Chief Medical Examiner (N.Y. OCME) is the only government facility currently using LCN testing, but several private and academic laboratories in the U.S. perform LCN testing. People v. Garcia,
Laboratories often use different procedures for LCN samples. There are cases from New York trial courts holding LCN results admissible — including the case cited by the Government, Megnath,
The NMDPS Laboratory, in contrast, states that it uses no special procedures or methods of interpretation for LCN testing.
There are a number of different definitions of LCN testing. Charlotte Word, What is LCN? — Definitions & Challenges, Promega Corp. (2010) [Defs Ex. CIO] (available at http://www.promega.com/ pubhub); see United States v. Davis,
The Government presented testimony on definitions of LCN testing, appearing to take the position that LCN generally refers to modifications of procedure, or testing of quantities below 100 pg or 200 pg. The focus for the Court, however, is not to establish a definition of “LCN testing,” but to determine whether the Government’s DNA results in this case are reliable and admissible. According to the NMDPS Laboratory’s own protocol, Item 1B23B is declared to contain too small a quantity to yield the normally reliable DNA profile obtained through PCR/STR testing; Item 1B23B, at 215 pg, is below the Lab’s “stochastic threshold” and therefore “in the potential danger zone of unreliable results.”
The NMDPS Lab’s SOP sets forth the Lab’s empirically determined stochastic threshold for testing with Identifiler:
LOW COPY NUMBER (LCN) SAMPLES
Validation studies for both Identifiler and Yfiler STR kits have demonstrated a range of total input amounts of DNA where amplification stochastic effects are observed. For Identifiler, samples with a total input amount of DNA less than 250 picograms (0.25 ng) demonstrate stochastic effects and should be evaluated and interpreted with caution .....
Per CODIS rules, any sample amplified at these amounts or less and injected on a genetic analyzer for 10 seconds is not eligible for entry into CODIS. If the sample is of good enough quality at a 5 second injection for entry into CO-DIS, the analyst should print the electropherograms from both the 5 and 10 second injections and include both in the case file for review. The 5 second injection can be used for CODIS entry and the 10 second injection for interpretation on the report.
NMDPS Biology SOP, pp. 13-9 to 13-10 (approved 4/1/11) [Defs Ex. N6]. Davis testified that this LCN threshold was set because in validation studies conducted by the NMDPS Lab, testing quantities less than 250 pg resulted in stochastic effects. [Tr. 5/6/13, p. 131] Watson testified that each laboratory generally establishes its own stochastic threshold for quantity of input DNA, and that this threshold will vary from lab to lab depending on the procedures and instruments used. [Tr. 5/6/13, pp. 65-66] The NMDPS Lab also set a stochastic threshold based on the height of the electropherogram peaks, establishing as too low for interpretation peaks below 100 relative fluorescent units (RFUs).
Watson testified that the partial DNA profile, exhibiting allele drop-out, for Item
The Court recognizes that the NMDPS Lab’s stochastic threshold is higher, at 250 pg, than the level defined as LCN by other labs and authorities. Other labs may get reliable results with lower quantities; procedures and results and stochastic thresholds vary from lab to lab. But what is important is that the NMDPS Lab has empirically determined that 250 pg is its own stochastic threshold; this means that the NMDPS Lab recognizes that, applying its own protocols and using its own instrumentation, it expects to see stochastic effects that may render the results unreliable when a sample under 250 pg is tested. The question before the Court is whether the Government has carried its burden of demonstrating, by a preponderance of the evidence, that the LCN testing by the NMDPS Lab in this case is nevertheless reliable.
The Government presented argument and testimony showing that a number of other laboratories around the world, and a few in this country, perform LCN testing. [Doc. No. 547, pp. 29-30; Tr. 5/6/13, pp. 27-29] The Government appears to argue that the use of LCN testing in these laboratories supports the Government’s position that LCN results are admissible in the case before the Court. [See also Doc. No. 547, p. 29] But the question before this Court is not whether it is possible to perform LCN testing reliably — but instead whether the LCN testing performed in this case, by the NMDPS Lab, is reliable. First, the demonstration that LCN testing is done in other countries does not constitute any showing that those LCN results would meet the standard for admissibility under Daubert and Rule 702. Second, and more important, other laboratories use different procedures; even if it were shown that their LCN results were reliable, that would say nothing about whether the LCN results from the NMDPS Lab procedures are reliable. [Tr. 5/7/13, pp. 229-33 (Krane testifying that other labs modify their procedures and/or their statistical calculations for LCN testing); Tr. 5/6/13, pp. 14, 16-18, 22-29 (Watson testifying that other labs generally use modified procedures) ]
There are many cases addressing admissibility in general of the PCR/STR method of DNA analysis, as discussed above; based on its acceptance by the vast majority of courts and overwhelming scientific and forensic acceptance, the Court concluded that PCR/STR analysis is reliable and admissible under Daubert and Rule 702. In contrast, there are few reported cases on admissibility of LCN testing under Daubert and Rule 702, and the scientific literature is unclear and often addresses different procedures.
The Government cites one case from the Supreme Court of Queens County, New York, People v. Megnath,
The unpublished federal case cited and submitted by the Government, Williams, does not aid the Government. [Doc. No. 547, p. 27; Gov’s Ex. 36 (6/25/12); Gov’s Ex. 14 (5/6/13) ] The Court observes that the Government’s Exhibit List for the May 6-7, 2013 evidentiary hearing erroneously states in a parenthetical for Williams: “(admitting LCN over Dr. Krane’s criticisms).” On the contrary, the federal district court found that LCN testing was not in fact conducted in that case, because the quantities of input DNA in the two samples at issue (0.6 ng and 0.3 pg) were above 0.2 ng and above the stochastic threshold; the court therefore concluded that no determination on admissibility of LCN testing was required. United States v. Williams,
The scientific literature cited by the parties does not give the Court a sound basis for decision. A number of leading authorities in the field take the position that LCN testing is not reliable. [Tr. 5/6/13, pp. 47-50] See, e.g., Bruce Budowle, Low Copy Number Typing Still Lacks Robustness and Reliability, available at http://www. promega.com/resources/articles/profiles-indna/low-copy-numbertyping-still-lacksrobustness-and-reliability (2010) [Defs Ex. B8]. Although the Government cites some authorities as supporting the reliability of LCN testing, these authorities are discussing laboratories using different procedures and methods than the NMDPS Lab; these authorities therefore do not demonstrate that the NMDPS Lab’s procedures and methods yield reliable results. [Doc. No. 547, pp. 29-30; Tr. 5/6/13, pp. 229-32] Articles cited by the Government as demonstrating “general acceptance [of LCN testing] in the scientific field” do not support this claim. [Doc. No. 547, p. 29 (citing A. Lowe et al., Use of Low Copy
At the May 6, 2013 evidentiary hearing, the Government offered the testimony of Dr. William Joseph Watson, a self-employed forensic DNA consultant -with contracts as auditor and inspector for the American Association of Laboratory Accreditation. Watson worked in the field of forensic science for almost twenty years— as a forensic scientist, lab director, and lab auditor. He has a Ph.D. in molecular biology. He has testified ninety-one times as an expert in DNA analysis. The Court qualified him, without objection, as an expert in forensic DNA analysis. [Tr. 5/6/13, pp. 7-14]
Watson testified generally about LCN testing. Watson testified that: there are different definitions of LCN testing, different laboratories perform different procedures' for LCN testing, he knew of about ten U.S. laboratories conducting LCN testing, and laboratories in other countries perform LCN testing. Watson was not entirely familiar with the NMDPS Lab’s protocol, and did not review the case file notes in this case. [Tr. 5/6/13, pp. 55,102-03, 106-07] Watson did look at one DNA profile in this case, on Item 1B23B. [Tr. 5/6/13, p. 55] On cross-examination, Watson testified that some leading members in the DNA forensic community believe that LCN testing is not reliable [Tr. 5/6/13, pp. 47-50]
The Government also presented testimony by Carrie Zais Davis. The Court qualified Davis, without objection, to testify as an expert in DNA analysis. [Tr. 5/6/13, p. 130] Davis testified that there were a total of six LCN results in this case — Item 1B23B, and five others which were uninterpretable. [Tr. 5/6/13, pp. 133-34] Item 1B23B was 215 picograms. [Tr. 5/6/13, p. 142] Davis’s lab report states her conclusion that Item 1B23B was a single source sample and that its source was Tracy Province, based on a match at 11 out of 15 loci:
A partial DNA profile was obtained from item 1B23B (at 11 of the 15 loci). To a reasonable degree of scientific certainty, Tracy Province is the source of this partial DNA profile.
[Defs Ex. G6, Sept. 30, 2010 report, p. 3] At the May 6, 2013 evidentiary hearing, however, Davis testified that one additional locus could not be used for interpretation and statistical calculations (because one peak at TPOX was below the Lab’s stochastic threshold of 100 RFUs); there
Davis testified that the NMDPS Lab does not modify its procedure when testing an LCN sample: “We would treat it just as we treat any other sample that we’re testing in the lab and interpret it — I would say with caution.” [Tr. 5/6/13, p. 138; Tr. 5/6/13, pp. 180, 191] The Lab does not increase the amplification cycles from their usual 28 cycles, and does not do any post-amplification cleanup or purification of the sample. [Tr. 5/6/13, pp. 138, 141-42] But, Davis testified, “maybe you have a red flag that maybe you should be looking for stochastic effects,” although she added that the analyst would be doing that even with a sample that was not LCN. [Tr. 5/6/13, pp. 138-39]
Davis testified about the eleetropherogram produced on Item 1B23B after a ten-second injection. [Gov’s Ex. 60 (5/6/13) ] Based on its validation studies, the NMDPS Lab had set a stochastic threshold of 100 Relative Fluorescent Units (RFU); peaks below 100 RFUs are not used for interpretation and formulating statistics, though peaks between 50 and 100 RFUs can be used to exclude a profile. [Tr. 5/6/13, p. 135] With regard to this electropherogram, Davis observed that there was complete drop-out (locus dropout) at two loci (CSF1PO and D2S1338); the peaks were below 100 RFUs at two more loci (D7S820 and D16S539); and one of the two peaks at another locus (TPOX) was below the stochastic threshold. [Tr. 5/6/13, pp. 134-38] Thus, of the 15 loci, only the results for 10 loci were good enough to use for interpretation and statistics. [Id.]
Davis did testify that the “regular injection” on the ABI 3130 is five seconds, and that she injected this sample for ten seconds — which, “essentially ... is just doubling the amount of DNA that gets injected into the actual instrument,” in order to help raise peaks above the 100 RFU threshold and make them interpretable. [Tr. 5/6/13, p. 139-40] Davis testified, however, that the Lab had determined that they could use either a five-second or ten-second injection on any sample, whether LCN or not. [Tr. 5/6/13, pp. 139-40] She stated that this was not a matter of following a different procedure for an LCN sample. [Tr. 5/6/13, p. 140] When asked whether a ten-second injection was typically used for an LCN sample, Davis answered that it was up to the analyst’s discretion but then said probably the analyst would run a ten-second injection for an LCN sample:
Question: Okay. Now when you have an LCN, do you typically always do a 10-second injection?
Davis: I guess it just depends on the analyst running the sample. But I mean, I would say most analysts probably would run 10-second injections on a low copy number sample, yes.
[Tr. 5/6/13, p. 141]
Davis testified that to determine whether she obtained a reliable profile from 1132313, she looked for peak height balance between the “called alleles” (those represented by peaks above the 100 RFU threshold). [Tr. 5/6/13, p. 143] Davis testified that, if the peak heights at heterozygous loci are within a 70% ratio, that shows her that she has “what we would call a normal sample, or just something that’s not showing stochastic effects.” [Id.]
Defendant offered testimony by Dr. Dan Erane, a biology professor at Wright State University with numerous publications, several dealing specifically with LCN testing. The Court qualified him, without objection, as an expert in molecular biology. Erane testified that he had received the electronic data on Item 1132313, from
Krane testified that, although other labs might alter their procedures when performing LCN testing, the NMDPS Lab asserts that it does not. The essential difference for the NMDPS Lab is their protocol requiring that LCN samples must be evaluated and interpreted “with caution”; however, in Krane’s opinion, Davis did not interpret Item 1B23B with caution. [Tr. 5/7/13, pp. 229-31, 236-37] Other labs, for example, in the United Kingdom, modify their statistical formulas to account for the possibility of drop-out in LCN samples; the NMDPS Lab, however, did not make such modifications. [Tr. 5/7/13, pp. 231-32] In Krane’s opinion, the testing results were not interpreted in a reliable manner. [Tr. 5/7/13, p. 233]
The Court identifies four important points, all indicating that the Government has failed to carry its burden of demonstrating the reliability of the NMDPS Lab’s LCN testing.
First, to determine whether there was 70% peak height balance in the profile, Davis considered only the “called alleles” — i.e., only those loci for which both alleles were above the 100 RFU stochastic threshold; Davis thus ignored the TPOX locus because one of the peaks at TPOX was below the stochastic threshold of 100 RFUs. Davis did not provide an explanation for ignoring TPOX, and did not cite to any scientific studies or literature to support her conclusion. When asked by the Court about reliability of the LCN profile and stochastic effects, the Government’s other expert witness, Watson, pointed out that there was peak height imbalance at TPOX which “could be attributable to stochastic effect.” [Tr. 5/6/13, pp. .102-04, 109] At TPOX, the two alleles were 68 and 133 RFUs — which is a ratio of 51%, and not close to the 70% ratio which Davis said constitutes sufficient balance to indicate reliability of the profile. [Gov’s Ex. 60 (5/6/13) (10-second injection) ] Krane also pointed out that there was peak height imbalance at TPOX, which undermines Davis’s assertion that the profile was reliable because there was peak height balance overall. [Tr. 5/6/13, pp. 225-26]
Second, Davis admitted that the result of a ten-second injection was not eligible for entry into CODIS. [Tr. 5/6/13, pp. 157, 187] This exclusion is stated in the NMDPS Lab’s protocol. [Defs Ex. N6, p. 13-9] When asked if the reason for the exclusion was to prohibit entry into CO-DIS of unreliable DNA results, Davis was unable to provide any other explanation. [Tr. 5/6/13, pp. 156-60] There is a suggestion here that ten-second injection results in unreliable results, which the Government failed to rebut. The Court recognizes Davis testified, somewhat unclearly, that FBI standards would have prevented entry into CODIS of the results on 1B23B at any event [Tr. 5/6/13, pp. 162, 187-88]; however, the Court is concerned with the reliability of the NMDPS Lab’s testing of LCN samples with a ten-second injection — not just with whether a DNA result on this particular item would have been
Third, no replicate testing was done by the NMDPS Lab, although authoritative articles state that this is an important means of ensuring reliability for LCN testing. [Tr. 5/6/13, pp. 82-83] See, e.g., John M. Butler, Fundamentals of Forensic DNA Typing 332 (2010) [Gov’s Ex. 34 (5/6/13)]; John M. Butler & Carolyn R. Hill, Scientific Issues with Analysis of Low Amounts of DNA PP- 6-7, 14-15 (2009) [Gov’s Ex. 2 (5/6/13) ]. “[T]his replicate amplification strategy has become the core feature of reliable low-level DNA testing.” John M. Butler, Advanced Topics in Forensic DNA Typing: Methodology 313 (2011) (emphasis added) [Gov’s Ex. 34a (5/6/13) ]. Butler states: “Laboratories should not report out a single result with LCN STR analysis (see Figure 11.4).” Id. 340. Figure 11.4 states that the result of a single amplification of an LCN sample “can be unreliable.” Id. 328.
Fourth, and most important, Davis did not present a good explanation, or scientific basis, for her opinion that the profile on 1B23B was reliable despite the clear stochastic effects of dropout at four or five loci; the following is Davis’s testimony on direct examination:
Government’s Counsel: And for example if you see stochastic effect at one [locus], why are the others still reliable?
Davis: Just based on my experience in interpreting. I mean, to me, it looks like a single-source reliable profile.
Government’s Counsel: Okay. And I guess I keep going back to how do you know that one of them [the other loci] isn’t exhibiting something with a stochastic effect?
Davis: Again, peak height ratios, we rely on that a lot to show whether or not there is stochastic effect. I mean, there’s no — it doesn’t look like there’s a lot of alleles that just haven’t been called, meaning there’s not little tiny blips on the electropherogram that could potentially be another allele that just aren’t called.
Government’s Counsel: Okay. And so that’s what tells you that it is a reliable profile?
Davis: Yes.
Government’s Counsel: Or I should say an interpretable profile. Is that a better way to say it?
Davis: Yeah. I mean, yes, it’s definitely an interpretable profile.
Government’s Counsel: Okay. And being that it is interpretable, does that make it reliable?
Davis: Yes.
Government’s Counsel: Even though it is, by your lab standards, classified an LCN?
Davis: Correct. Yes.
[Tr. 5/6/13, p. 144^5]
On cross-examination, Davis still failed to provide a good explanation for her conclusion, and still failed to cite any scientific studies or literature to support her approach or her conclusion. Davis repeated that peak height balance of 70% — but only considering “called alleles” (i.e., those above 100 RFUs, so ignoring TPOX) — was “an indication of whether or not there [are] stochastic effects.” [Tr. 5/6/13, p. 148] But allele drop-out is a stochastic effect, and the sample indisputably exhibited allele drop-out — at four or five loci. Defense Counsel questioned Davis about how she could conclude that peak height balance at five loci showed that there were no stochastic effects at other loci — when it was clear that there was drop-out at four or five other loci. Davis’s assertion that there was peak height balance, overall, is
Davis: I’m making the determination that, in my experience, that it’s not likely that there’s drop-out at the ones that are shown as homozygotes.
Defense Counsel: And what is it about your experience that tells you that in regard to this particular sample?
Davis: Because I’ve looked at thousands and thousands of samples before.
[Tr. 5/6/13, p. 153] When asked by the Court to justify her conclusion that the profile was reliable, even though it was admittedly below the Lab’s 250 pg stochastic threshold, and stochastic effects were in fact observed, Davis again blithely cited her experience: “So I guess, just based on my experience, I would say that this is a reliable profile.” [Tr. 5/6/13, pp. 190-91] Davis did not further justify or support her conclusion; she did not cite to any particular expertise with LCN testing, nor did she cite any specific testing or scientific literature.
When the Court asked whether there was a way to test her conclusion, Davis cited the statistics she had generated and said “the statistical weight on it, too, would give it more reliability.” [Tr. 5/6/13, pp. 191-92] On recross-examination, however, Davis retracted this statement, admitting that the statistical calculations had nothing to do with the reliability of the profile itself. [Tr. 5/6/13, p. 194]
The difficulty with Davis’s conclusion is that, if there were drop-out at one of the five loci exhibiting homozygous results in the electropherogram, the profile would no longer be attributable to Tracy Province. Davis based her conclusions on the results of the ten-second injection, shown in Government’s Exhibit 60. The results of the five-second injection, shown in Government’s Exhibit 60a, show at locus D3S1358 a peak of 69 RFUs (10.1%), which is just below the stutter threshold for that locus (10.7%), so it was not considered by Davis. If that peak were in fact an allele that had dropped out, so that the sample was heterozygous at locus D3S1358, Tracy Province (who is homozygous at that locus) would have been excluded as the source of item 1132313. [Tr. 5/6/13, pp. 165-69] This point was also illustrated in testimony by Krane. [Tr. 5/7/13, pp. 220-24]
Watson testified that one of the criticisms of LCN interpretation is that, once stochastic effects have occurred at some loci, there is no way to be certain that the stochastic effects were confined to those loci and did not occur at other loci. [Tr. 5/6/13, pp. 108-10] Krane testified that,
The Court does not find credible Davis’s testimony and conclusion on the reliability of the DNA profile for Item 1B23B. The Court is not persuaded by Davis’s insistence that her experience — without citation to scientific studies, scientific literature, or any special training — -justified her conclusion. See Dodge,
The Court recognizes that, if the DNA profile for Item 1B23B were reliable, the resulting statistics regarding a match with Tracy Province would be impressive; as Krane testified, even a nine-locus match is “a very, very rare occurrence.” [Tr. 5/7/13, pp. 248] But the problem is that the NMDPS Lab’s profile has not first been shown to be reliable; statistics calculated on the basis of an unreliable profile cannot be reliable. [Tr. 5/7/13, pp. 264-65]
In addition, the Court is concerned that Davis did not provide a sufficient explanation for relying on the ten-second injection as what she called the “optimal” data to use for her interpretation. [Tr. 5/6/13, p. 166] This choice was important because, with the five-second injection, three additional loci dropped out. [Gov’s Ex. 60a (5/6/13) ] Davis would have had only seven loci to interpret instead of ten. And she would have had only three heterozygous loci on which to base an assessment of whether peak height balance demonstrated reliability. Davis did not testify about whether she could have concluded that the profile from the five-second injection was reliable.
The Court observes that Watson gave a conclusory opinion that the NMDPS Lab’s result on Item 1B23B was reliable. [Tr. 5/6/13, p. 45] Watson did testify that he was somewhat familiar with the NMDPS Lab’s approach to LCN, and did testify that the Lab had validated their procedure with a wide range of amounts of DNA. [Tr. 5/6/13, p. 35] But this general testimony did not show that Watson was sufficiently familiar with the facts to support an opinion on the reliability of this specific DNA profile — particularly when he acknowledged that the quantity, 215 pg, was below their minimum for optimal results. [Tr. 5/6/13, pp. 55, 102-03, 106-07 (Watson admitting he was not entirely familiar with NMDPS Lab’s procedures and interpretive principles) ] Watson did not explain why a result with an input quantity below the Lab’s stochastic threshold would be reliable.
The Court also observes that .Defense Counsel tried to show that Davis had used the wrong stutter threshold at locus D3S1358, and should have considered the sample to be heterozygous at that locus, which would have led to exclusion of Tracy Province as the source of that sample. [See Tr. 5/7/13, pp. 220-23] The Court has cited Krane’s testimony on this point, but only to illustrate how critical is Davis’s conclusion that there was no drop-out at any of the five homozygous loci for which there were “called alleles” (D8S1179, D3S1358, D19S433, vWA, FGA). Krane used different software than the NMDPS Lab to generate the electropherogram in Defendant’s Exhibit DIO. [Tr. 5/7/13, pp. 241-45] The Court therefore does not rely
Consideration of the Daubert factors leads the Court to conclude that the results of LCN testing by the NMDPS Lab are not reliable enough to meet the admittedly relaxed standard of Daubert and Rule 702. PCR/STR analysis of low-level DNA has been tested, and has been found to exhibit stochastic effects rendering the DNA profiles unreliable; indeed, the empirical testing by the NMDPS Lab itself caused the Lab to declare testing of less than 250 pg resulted in stochastic effects. The Lab set its own threshold for reliability. It has not been demonstrated to this Court that the NMDPS Lab is able to obtain reliable DNA profiles from samples below 250 pg, or to reliably interpret such profiles. See Daubert,
The Court concludes that the Government has not carried its burden of demonstrating, by a preponderance of the evidence, that LCN testing by the NMDPS Lab is reliable and admissible under Daubert and Rule 702. The results of LCN testing will not be admitted at trial.
(2) Mixed Samples
Davis’s lab reports state that there were “two or more” contributors to all of the samples she characterized as mixed samples. [Def s Ex. G6] When Defense Counsel questioned Davis on this point, Davis testified that she could not say how many contributors there were — just that there were two or more. [Tr. 5/6/13, pp. 173-78] Davis agreed that she had no way to determine the quantity of DNA from each contributor, and also apparently agreed that the quantity from a minor contributor might be below 250 pg — which would constitute LCN testing if it were a single-source sample. [Tr. 5/6/13, pp. 174-76] Davis testified, however, that the NMDPS Lab’s definition of an LCN sample simply looks to the total quantity of DNA in the sample. Davis insisted that “by definition,” a mixed sample containing more than 250 pg did not constitute LCN testing even though there might be less than 250 pg from one or more of the contributors. [Tr. 5/6/13, pp. 175-76, 182] Government Counsel clearly demonstrated the Government’s position that the NMDPS Lab just says what constitutes LCN testing, and anything not defined by the Lab as LCN testing deserves to be granted the same level of reliability as PCR/STR testing on greater quantities. [Tr. 5/6/13, p. 183; Doc. No. 547, p. 28 n. 30 (relying on NMDPS Lab’s declaration that quantities greater than 250 pg are not
In Exhibit 34a, submitted by the Government, an authoritative expert explained that the same concerns regarding LCN testing may apply with a mixed DNA sample even though the total DNA input exceeds the stochastic threshold:
Minor Components in Mixtures May Be Low-Level DNA
Many DNA analysts may think that low-level DNA analysis does not apply to them because they are running 28-cycle PCR and not examining DNA down at a level of 100 pg or less. However, PCR amplification involving 1 ng total DNA with a two-person mixture and a 9:1 major-to-minor component ratio leaves the minor contributor in the low template range of approximately 100 pg or 15 cells (Table 11.3). Thus minor contributor alleles in this situation could be experiencing stochastic sampling (allele drop-out, etc.) as well as allele masking by the taller major contributor alleles. This fact is important to keep in mind when working with DNA mixtures.
John M. Butler, Advanced Topics in Forensic DNA Typing: Methodology 334 (2011) [Gov’s Exhibit 34a (5/6/13) ]; see also P. Gill et al., DNA Commission of the International Society of Forensic Genetics: Recommendations on the Interpretation of Mixtures, p. 96 (same problems with stochastic effects and interpretation may occur with mixtures as with single-source LCN samples) [Def s Ex. S7].
Watson testified that problems with LCN testing are exacerbated with mixed samples. [Tr. 5/6/13, pp. 86-87] He testified that the 250 pg stochastic threshold established by the NMDPS Lab is “the minimal amount of DNA that you can reasonably expect to produce a complete DNA profile, assuming it’s a single-source sample.” (Tr. 5/6/13, p. 35) Watson testified to the same principle reflected in the quotation from Butler, above; for example, Watson explained, a sample with a total input of 200 pg which is a mixture from two individuals in a 1:1 ratio represents an LCN sample with respect to both individuals, because there are only 100 pg from each. [Tr. 5/6/13, p. 43; see id. at 79, 104-05] Watson agreed that a problem with mixed samples is that it is difficult to tell whether some contributors are at an LCN level. [Tr. 5/6/13, pp. 86-87]
Krane also testified to the principle set forth in, the Butler quotation. Even though a mixed sample contains more than 250 pg, the quantity from a minor contributor — or even a major contributor — may be below 250 pg and may constitute LCN. And “the problem just gets worse” if there are more than two contributors. [Tr. 5/7/13, pp. 227-29, 237] Krane testified that there were at least two more mixed samples with LCN issues in this case. [Id.]
The NMDPS Lab cannot simply define away any potential LCN issue, declaring that any sample of more than 250 pg— even if mixed — is considered to produce reliable (non-LCN) results. Davis testified that the NMDPS Lab dogmatically defines a sample as presenting no issue of unreliable LCN results — as long as the total quantity of DNA exceeds 250 pg, regardless of how many contributors there are to the sample. This is another instance of “ipse dixit” by the Government’s expert, which the Court rejects. See Joiner,
The Government presented no evidence that Butler’s approach, as reflected in the quotation above, is misguided or incorrect. The NMDPS Lab cannot merely declare, without evidence or support, that a mixed sample above 250 pg does not present the problems of LCN testing. The Court is persuaded that Butler’s approach is reliable and correct. Unless the Government can prove at trial, as a foundational matter, that the quantity of DNA contributed to a mixed sample by an individual exceeds 250 pg, the Government’s evidence with regard to that individual will be excluded as an unreliable LCN result.
F. Rule 703
Under Rule 703, an expert may base an opinion “on facts or data in the case that the expert has been made aware of or personally observed.” Fed.R.Evid. 703. “If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.” Id. A witness qualified as a DNA expert may testify regarding data or facts on which experts in the field of DNA analysis regularly rely.
The “sufficiency of the basis of an expert’s testimony is to be decided under Rule 702.” Fed.R.Evid. 702 advisory committee’s note to 2000 amendment. “In contrast, the ‘reasonable reliance’ requirement of Rule 703 is a relatively narrow inquiry.” Id. Under Rule 703, an expert may rely on inadmissible information provided that information is “of a type reasonably relied on by other experts in the field.” Id.
Based on the current record and the parties’ arguments, the Court does not see any issues to resolve under Rule 703.
G. Rules 401, 402, and 403
Defendant makes largely cursory arguments that the Government’s evidence, mostly quantitative or qualitative statistical evidence, will violate Rules 402 or 403. [Doc. No. 442, pp. 28, 102, 108-10, 116, 118-21,133,135]
Evidence is relevant if it has “any tendency to make a fact more or less probable than it would be without the evidence,” and “the fact is of consequence in determining the action.” Fed.R.Evid. 401. Although the Court cannot, at this preliminary stage of the proceedings, be fully aware of the relevance, it is apparent that the probative value of the DNA evidence is to connect Defendant, or Welch or Province, with the Haases’ van and with handguns. The probative value of this evidence “cannot seriously be placed into question.” Nichols,
Federal Rule of Evidence 403 is rarely appropriate as a basis for pretrial exclusion. See Paoli II,
Regarding Defendant’s arguments that various statistical calculations should be held inadmissible under Rules 401, 402, or 403, the Court observes that Defendant himself acknowledges that “statistical probabilities are basic to DNA analysis.” Davis,
The Court denies all of Defendant’s motions to exclude under Rules 401, 402, and 403.
H. Rule 901(b)(9)
Defendant argues that Rule 901(b)(9) requires that an adequate foundation be laid before any computer-generated DNA evidence is admitted. [Doc. No. 442, pp. 174-79] The Government asserts that Defendant’s argument on Rule 901(b)(9) “is a red herring, much the same as the argument made in the motion to suppress medical investigator testimony.” [Doc. No. 547, p. 53]
It is not clear to the Court, based on the current record, that the Government intends to introduce into evidence any of the computer- printouts themselves. It appears that the Government intends to present conclusions by a DNA analyst about various DNA samples, but the “facts or data” on which the expert relies “need not be admissible for the opinion to be admitted” if “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Fed.R.Evid. 703. The Court finds, from review of the scientific information and the caselaw, that experts in the field of DNA analysis routinely and reasonably rely on data generated by computers. Under Rule 703, these data need not
Defendant may renew his argument at trial, if the Government seeks to admit computer-generated data.
CONCLUSION
The Court concludes that Carrie Zais Davis is qualified to testify as an expert in DNA analysis, and that the Government’s DNA evidence is admissible under Rule 702 and Daubert — with the exception of LCN testing results, which are not admissible.
The Court concludes that the Government has not carried its burden of demonstrating, by a preponderance of the evidence, that LCN testing results are admissible under Rule 702 and Daubert; the Court will grant Defendant’s motion to exclude the results of LCN testing. The Court thus specifically excludes the DNA evidence on Item 1132313, conceded by the Government to be an LCN result. The Court orders the Government to lay a foundation at trial with respect to any evidence of mixed samples, demonstrating that the DNA result does not constitute LCN testing with respect to any contributor for whom the Government wants to introduce a DNA result; evidence from mixed samples which is found to constitute LCN testing will be excluded.
IT IS THEREFORE ORDERED that Defendant’s Motion To Exclude DNA and Serology Test Results and Request for Daubert Hearing. [Doc. No. 422,. filed April 22, 2012; Doc. No. 442 (Defendant’s (Corrected) Supplemental Memorandum), filed May 10, 2012] is DENIED IN PART and GRANTED IN PART as explained above.
Notes
. Defendant submitted 33 exhibits numbered 1 to 33 on CD (May 11, 2012). Defendant renumbered these 33 exhibits and helpfully submitted hard copies of them along with additional exhibits at the May 6-7, 2013 evidentiary hearing. The Court refers to Defendant’s exhibits by the designations given to the hard copies admitted, G6 to E10.
The Government submitted 37 exhibits numbered 1 to 37 on CD (June 25, 2012). The Government then submitted hard copies of 36 exhibits, numbered 1 to 36, at the May 6-7, 2013 evidentiary hearing. To distinguish between these identically numbered exhibits, the Court adds the date after the exhibit number — i.e., either "(6/25/12)” or “(5/6/13).”
. The reports and curriculum vitae initially referred to the Government’s DNA analyst as "Carrie Zais”; by the time of the May 2013 evidentiary hearing, her name is "Carrie Zais Davis.” The Court generally refers to her as "Davis.”
. The Court refers to the page numbers shown for Document No. 442, which are not the same as the page numbers typed on the bottom of each page of Defendant’s Supplemental Memorandum; the Court notes that the each of the Doc. No. 442 page numbers is higher by 15 (since there are 15 introductory pages to the Supplemental Memorandum).
. The Government provided an updated CV, now showing the analyst’s name as Carrie Zais Davis, at the May 2013 evidentiary hearing. [Gov’s Ex. 4 (5/6/13) ]
. Rule 702 was further amended in 2011 as part of the restyling of the Rules of Evidence, to make them more easily understood; these changes are "stylistic only" and there "is no intent to change any result in any ruling on evidence admissibility." Fed.R.Evid. 702 advisory committee’s note to 2011 amendment.
. TWGDAM is the Technical Working Group on DNA Analysis Methods, a group of forensic DNA analysts from government and private laboratories who developed guidelines on quality control and quality assurance; their guidelines "define currently accepted practice.” NRC II, p. 24.
. Defendant often fails to identify the cases he cites as Frye cases. [Doc. No. 442, pp. 87-97] The following are unpersuasive because they apply Frye: People v. Venegas,
. In addition, Defendant argues that the Government cannot rely on the California case, Jackson, because the Tenth Circuit explicitly rejected the approach followed there; Defendant relies on his argument that Tyson Foods obliterated the distinction between methodology and procedure. [Doc. No. 442, p. 96 n. 53] As discussed above (Section IV(D)(1)), the Court disagrees with Defendant's characterization of Tyson Foods and believes that different legal standards apply to methodology, on the one hand, and procedures (or application of the methodology), on the other hand.