United States v. Porter

SCHWELB, Before STEADMAN and MACK, Senior Judges, Associate Judge.

SCHWELB, Judge: Associate appeal presents our court for This question whether with the first time “DNA” profiling techniques entific set in the evidence admissible forth landmark States, corroborate the of a defen- Frye App.D.C. identification case of v. United that, dant in (1923). a criminal case. Provided 293 F. 1013 anticipate, questions certain we limited case was Porter’s consolidated with elev remand, the successfully propo- resolved on prosecutions en the other which admissi technology nents of which we view as bility DNA Dur evidence was issue. potentially valuable in the search for tool twenty-day hearing the fol carry the the day. truth lowed, judge testimony the heard from eight expert witnesses, admitted over 110

I exhibits, 1,300 pages and received over order, judge briefs. The later issued an THE PACTS accompanied by 93-page opinion, grand jury A E. on indicted Kevin Porter held that proffered which he the DNA iden February rape, on count of one tification evidence was inadmissible. Unit (1989), D.C.Code 22-2801 and one count § Porter, Daily ed States Wash. knowledge. of carnal The indictment Id. L.Rptr. (Super.Ct.D.C.1991). The alleged precipitated was Porter’s sexual judge concluded that the FBI’s method for upon year-old assault the fourteen sister of determining that a defendant’s DNA trial, girlfriend. prosecution his Before the matched DNA taken from the crime scene filed a requesting motion the court for procedures generally accept was based on testimony expert leave to introduce community ed in the scientific reliable. (DNA) deoxyribonucleic the acid extracted however, ruled, proce He the FBI’s specimens from semen taken from the calculating dure for coincidental match crime scene matched the DNA taken from probabilities, arriving figure and for at the government Porter's blood. The also thirty million, on one in were based sought prob- to introduce that the evidence generally accepted techniques, and that the ability of a DNA coincidental match be- proffered evidence was therefore inadmis tween unrelated males two black was no Frye. judge sible observed that under higher thirty million.1 than one pending the of studies were number DNA evidence was thus intended corrob- subject the forensic use of DNA evi complainant’s orate expected identifica- expected dence and were to address issues tion of Porter as her assailant and to dem- which, respect as of time extremely improbable it was onstrate that disagreement. writing, there was scientific that someone other than Porter had com- He these stated that studies “[i]t mitted crime. after others, study such as the which is In response, Porter asked the court to being Academy prepared by National proffered exclude the DNA identification completed, of Sciences have been [NAS] argued technology evidence. He upon when the court should be called that the FBI had used to determine that his (Em evidence, admit DNA not before.” own DNA matched DNA taken phasis original). Id. at samples lacking in quality the semen government only, In case gener- control assurance and had not been the Porter ally accepted pretrial appeal pursuant scientific com- filed to D.C.Code relevant (1989). munity. 23-104(a)(l) pendency During Porter also contended that § methodologies appeal, used FBI to Research calculate National Coun- comprehensive probabilities” match cil of NAS issued the “coincidental likewise acceptance. report dealing general long-awaited lacked As a with foren- result, argued, government’s methodologies judge Porter sic DNA to which the opinion. proffered DNA evidence failed to alluded in his meet Committee on Technology admissibility standard for the of novel sci- Na- Science, FoRensic 270,000 government figure present- 1. The later also be amended of one Now, forty estimate to one million. before jury. ed court, essentially position takes issue may considerably simplify the before COUNCIL, TIONAL RESEARCH TECHNOLO- the court. [hereinafter (1992) GY in FoREnsic Science response to the NRC NRC Report]. necessary it is not for the hold that We Defend- parties and the Public prove, Report, in order that prosecution to curiae, Service, supple- amicus er as filed admitted, that there a scien- evidence be impos- already mental to their submissions precise probability tific the consensus ing briefs.2 long So there of a coincidental match. that the chances of such is a consensus hold, essentially for the reasons stat- We very greater are than some match no proce- that judge, ed the trial the FBI’s fraction, is proba- then the small3 evidence determining pass muster dures for a match appropri- an tive and should be admitted on Frye. We also agree judge the under with ately If, infor- basis. as the conservative that there no consensus within the suggests, repu- now mation available us community support in of relevant scientific agree such would on some table scientists probability that of the FBI’s calculation the figure limit the minimal as the bottom of higher than a coincidental match was no match, evi- possibility of a coincidental the (or, fortiori, million one in thirty one Frye under the dence will be admissible million). specifically decline the forty We however, remand, Porter standard. On government’s hold the invitation to contest, he opportunity to if must have the position group distinguished sci- one can, sufficiency government’s the the (those favoring government’s entists the showing scientific consen- that the relevant position) persuasive, is more as a matter of sus, opinion, now in this exists. as defined biology population genetics, molecular position apparently equally than the of an II distinguished group of scholars who have conclusion; indeed, opposite an reached we ALLELES, CHROMOSOMES, AND POLY- government’s position the on this is- view OF MORPHISMS —THE NATURE to Frye. We thus contrary agree sue as EVI- IDENTIFICATION judge’s prin- with the trial resolution the DENCE4 cipal issues he which addressed. techniques typing are “The Nevertheless, the in molecular biolo we remand the case to the fruits of revolution yielding gy explosion trial We so an of informa court. do for two reasons. view, First, genetics.” at least our NRC tion human NRC about Report, Report, supra, judge, opinion which was 2. The of the trial court not available to the trial at exposition of the tech suggests that DNA evidence should be contains detailed prosecution relies nology admitted on the basis of calcu- on which the Porter, requisite Wash.L.Rptr. Daily lation for which the this consensus case. v. Second, 483-85; see also United States Jako impor- now think may exist. we betz, Cir.1992), (2d point clarify parties tant to 955 F.2d which - U.S. -, denied, focused, cert. not significantly have but which S.Ct. keep opinion brief, example, pages within reason- initial is 241 order to bounds, Porter’s 4.In including fifty-seven long, ap- not exhibits de adopt, but not set forth able we do pended to it. novo, comprehensive summary judge's the trial testimony prosecution experts six 3. We need not determine how here small that experts gave and two defense who evidence be, appear fraction since it does not Porter, Daily hearing. supra, dealing probabilities trial will with Wash.L.Rptr. at We note that 89-93. Moreover, many less than one in thousand. judge testimo- also considered extensive evidence offered cor- ny expert prosecution for the witnesses Porter as the roborate identification of as- Yee, 134 in United the defense States sailant, prosecution and the entire case does 1991), (N.D.Ohio as set forth in F.R.D. expert depend testimony. emphasize We magis- unusually report of the federal detailed dealing admissibility we here with Daily evidence, Porter sufficiency, trate in that case. See of the standing with its alone, Wash.L.Rptr. convict a defendant. n. (1992). attempt pairs, repeating sequences L.Ed.2d 63 our form We of base terms, summary, lay own of an the for the DNA evi- brief basis identification fascinating subject. esoteric but in this case. dence issue blueprint technology DNA is sometimes called the The remarkable provided biologists life. en- It contains the chemical instructions molecular with an processes, sub-microscopic for all life’s into the as well as tree wonders of are, “genetic exploration yet we code” that defines who has not enabled them to like, every pair our compare what we look and where talents base in one DNA mole- twins, pair exception every lie. of identical cule base With another people conclusively no DNA. two have same The determine that the two mole- are, fact, makeup of one’s DNA remains cules scien- constant identical. Forensic years, tists, seeking throughout apply technology one’s life. recent fo- to the new technologies developed identify rensic guilty have been and to vindicate the innocent, removing developed for DNA human from cells have a “shortcut” for compar- making at crime this After discovered scenes and determination. extract- sample ing “cutting” evidentiary sus- DNA from cells taken pect’s DNA. We must determine whether from the crime scene and from cells taken isolate, technologies defendant, pass Frye. they these muster under from the each from sample, paternal fragments maternal and virtually Embedded within the nucleus of loci, “junk DNA” from four different every being’s body of each human are cell length repeating and measure the forty-six rod-shaped chromosomes. Half of sequence in In other fragment. each these are chromosomes inherited from words, comparing every rather base than one’s are mother and half inherited from molecules, pair they com- two one’s father. Each chromosome has the pare eight genes against of the defendant’s shape spiral ladder twisted or stair- genes the same locations on case. The of this “banisters” staircase are evidentiary sample they if are DNA to see phosphates made sugars, while the process is consistent with each other. This “steps” “rungs” pairs,” or consist of “base fragment length po- known as “restriction pairs together. or of amino acids bound A or, lymorphism,” manageably, as more single DNA a very molecule—itself not measuring It is the “vari- RFLP. aimed large entity about three billion —contains concept repeats,” number tandem able pairs. base rattle off as which aficionados sites, “loci,” specific along Located or VNTR. large groups each chromosome base person Because has thousands each “alleles,” pairs “genes.” as or known Over genes, theoretically possi- it is polymorphic genes among of these are identical all 99% genes people ble for two to have identical beings. genes human These define us in these four on their DNA mole- locations animals, persons, plants, rather than or perhaps cules but to have differences— They other of life. forms account other lo- even hundreds of differences—in many shared characteristics of all human de- Accordingly, cations. been once beings. remaining genes —known termined that the defendant’s “polymorphic” genes they vary because sample evidentiary DNA from the share person person form from —account patterns at all four of the loca- identical our unique characteristics as individuals. examined, pos- calculate the tions scientists Many polymorphic genes are known to merely sibility that match a coinci- have responsi- definite functions: some are samples dence and that did not two our ble for the color of hair and of our person. actually come from the same body eyes, shape for the some our Making generally the type polymorphic of our Other that calculation is blood. however, geneticists. The genes, appear no function of human have role “junk segments, particular system by the FBI and whatever. These DNA” followed presented by trial typically varying lengths prosecution consist (but potential). vintage boundless analysis.” recent court is known as “fixed bin People Wesley, 140 Misc.2d first esti- utilizing process Scientists (1988), 643, 644-46 533 N.Y.S.2d mate, ana- for each of the loci which was 75, 589 I), (Wesley 183 A.D.2d DNA, the fraction lyzed the defendant’s aff'd II). (Wesley (3d Dept.1992) N.Y.S.2d 197 people in the defendant’s broad racial in criminal cases of DNA evidence The use Caucasian, Black Ameri- group, e.g., ethnic “cutting edge” of science. forensic is at can, genes locus Hispanic, with at that I, Wesley 140 Misc.2d at genes. They to the defendant’s identical appeal therefore 644. This N.Y.S.2d at multiplications perform then a series very of issue which the presents the kind defendant’s determine fraction of the Frye designed quoted language all fragments identical DNA group with to address. resulting four of the loci examined. The generally astronomically an low explained fraction is for the As McGowan Addison, States v. one.5 United 199, 201, 498 F.2d U.S.App.D.C. Ill (1974), retards somewhat the standard LEGAL DISCUSSION on meth- proof new admission of based Frye

A. The Test. requir- investigation by ods of scientific currency point they that attain sufficient starting In jurisdiction, this gain general acceptance and status to legal inquiry must be the test enunciat- our community. scientific Frye: relevant ed in principle or Just a scientific discov- when therefore aban jurisdictions have Some experi- line Frye for a more liberal ery approach. crosses the between doned Jakobetz, diffi- See, stages and e.g. supra, mental demonstrable is 955 at 794. F.2d court, however, cult to define. this twi- adhere to Somewhere continues to This Hedge standard. Street v. light prin- zone the evidential force of the the traditional (D.C.1992); recognized, 1238, path, ciple must 1244 and while 607 A.2d States, 35, v. long admitting A.2d 39-40 Jones United go way will a 548 courts States, v. United Ibn-Tamas (D.C.1988); expert testimony deduced from a well- (D.C.1979). 626, A.2d 637-39 recognized principle or discov- 407 scientific thing from ery, the deduction that, government agree We with the sufficiently is made must be established Frye, of a new tech proponent under gained general acceptance to have by preponder nology demonstrate must particular belongs. field which it technology this that ance of the evidence 47, 293 at 1014. Al- relevant App.D.C. generally accepted 54 at F. has been Yee, supra, note 4, forty years though community. it is since James now scientific Jakobetz, 195-96; see also and Watson of United States Francis 134 F.R.D. at supra, (declining at in DNA Britain the Nobel 955 F.2d 796 Crick of Great received beyond case, proof reliability require pioneering for their work on the Prize Roy, Axell, v. doubt); States molecule, People see v. United 235 a reasonable 2481, (Sup 836, 845, 411, Daily 2489 Cal.Rptr.2d Wash.L.Rptr. 1 415 114 Cal.App.3d State, v. denied, (1992), Kelly 824 (1991), review er.Ct.D.C.1986);6 forensic use cf. (requir- 568, (Tex.Cr.App.1992) technologies comparatively is 573 of DNA 5.W.2d estimates, Porter, Daily analysis bility see 120 Wash. 5. technical details fixed bin 485; comprehend. Bridgett, easy lay person L.Rptr. States v. 120 not light and United disposition 1697, (Su not of our of this we do Wash.L.Rptr. Daily try necessary explicate in own find it our per.Ct.D.C.1992). "Hardy-Wein- principles such esoteric words "linkage disequilibrium." berg equilibrium,” or Roy Judge Burgess’ opinion in has been char- 513, Pennell, (Del.Su- See per.1989), v. 584 517 State A.2d "cogent thoughtful court as ... acterized 521-22; (defining rehearing, on id. at Jones, supra, comprehensive." A.2d 548 Hardy-Weinberg equilibrium). For de- more technology descriptions proba- tailed (D.C.1992) ing proof reliability (distinguishing in DNA case the existence to be dispute). merits evidence; dispute of that convincing clear and is Texas however, -Frye jurisdiction, gen- a non Frye We have stated that test “be- demonstrated). acceptance eral need gins ends —with ... there is whether —and general acceptance particular in requirement “gener- Given methodology, acceptance, beyond not an acceptance,” al is issue consensus "[t]he that, particular study results based controversy particular versus over tech- Ibn-Tamas, supra, methodology.” Jones, nique, validity.” not its held, judge trial 407 A.2d 638. The (citation omitted). A.2d at 42 As we blunt- Ibn-Tamas agree, we that under the artic- Jones, ly put prime is it in focus “on ulation, generally accepted “what must be votes, counting scientists’ rather than [on] analysis is forensic DNA and not ... be- verifying the soundness of scientific con- yond analysis in ... the results of that Mohit, Id.; People v. clusion.” cf. Porter, particular Daily case.” (West- 22, 990, Misc.2d N.Y.S.2d Wash.L.Rptr. 494.8 Ct.1992) County (counting chester heads rejected judge The trial also rarely can be feasible and of dubious val- (and prosecution’s tentative somewhat as ue). recognize some “scien- Courts severely tonishing) proposal that he restrict testify anything,7 tists” will almost categories scientists he whose views required. People Mid unanimity assessing general accep should consider in dleton, 429 N.E.2d N.Y.2d tance: Yee, (1981); N.Y.S.2d cf. simply argue, It not creditable to supra, 134 F.R.D. at 166, 197, 202. Never- so government does not do theless, general acceptance general ac- enthusiasm, general accep- much ceptance. If significant “scientists either may simply on premised tance expertise publicly oppose number [a opinion of forensic scientists. Were it unreliable,” technique] new then that otherwise, no there would have been pass technique does not muster under Frye month-long hearing. need for Frye. People 56, Shirley, v. 18, 31 Cal.3d no question There is but that forensic 266, 1354, Cal.Rptr. 243, 181 723 P.2d 1377 qualifier accept scientists is neces- —no (1982) (en banc). and sary DNA evidence believe —forensic satisfy Frye that will consensus “is has come for its use as time courts,” People scientists, v. of powerful in criminal trials. evidence 1135, Reilly, 1127, 242 Cal.App.3d 196 Cal. While forensic scientists have views of 496, (1987), Rptr. 500 courtroom is “[a] considered, weight and must be “mem- United States laboratory.” not a research of the scientific field will bers relevant Brown, 541, (6th Cir.1977). v. 557 F.2d 556 scientific include those whose back- Accordingly, may “the court not resolve a ground training are al- and sufficient to dispute opponents and scientific between comprehend them to and understand low technique, proponents very of process judgment form a and about [and] State, precludes 374, v. dispute existence of the admis it.” Reed 283 Md. 391 A.2d Campos, (1978). Starr v. testimony.” sion This holds 368 254, 257, (1982); 655 797 states the relevant sci- Ariz. P.2d this formulation Friend, field. Friend 609 A.2d 1139- entific cf. 416, 419, State, judicial knowledge McKay will take of the scienti- v. 173, 155 Tex.Crim.

7. We (1950). S.W.2d fact that the earth is round. At the fic same time, we know there are still who individuals Yee, (the supra, question F.R.D. at 197 Cf. theories, claim to be scientists who have other community pertinent "the is whether scientific holding even to the extent of that instead of generally accepts ability proto- the FBI’s living globe surface outer we live provide procedures and to ... a scientifical- col ly globe, within a there are within it rarity acceptable estimate the relative moon, sun, heavenly pattern popula- stars and all the bodies particular in the [relevant] tion.”) we observe. only expert evidence Porter, Daily Wash.L.Rptr. consider not 495 we omitted). (footnote agree record, judicial opinions We also other Axell, supra, 235 Cal. See also judge. pertinent legal jurisdictions, as well Cal.Rptr.2d at 424 App.3d at Id. 41. The commentaries. scientific (“[sjince amalgamation profiling is an parties reading which the amount of primarily disciplines, molecular biol two us undertake has amicus have invited ..., appears ogy population genetics say the least. challenging to therefore been by those logical acceptance to consider its use.”) for forensic communities Determining Match. C. Scope B. The Review. hearing, During Porter Generally, the decision whether procedure subjected the FBI’s RFLP testimony is expert not to addressed admit determining his own a match between to the sound discretion of the trial court. evidentiary sample to a DNA and the Street, 1244; Jones, supra, 607 A.2d at a number of attack9 from “blunderbuss” supra, 548 A.2d question 38. Where reargues He most different directions.10 acceptance scienti general new court, however, his in this often raised, or all of contentions technique propo fic asking altogether nent will often be the court to estab if not understated in colorful jurisdiction lish the law of the for future rhetoric.11 Jones, supra, 40. This cases. A.2d at judge of Port- The trial addressed each certainly instance. true He in considerable detail. er’s contentions Accordingly, recognition fact that typing the method of DNA concluded that jurisdic of this the formulation the law laboratory was the FBI forensic used function, quintessentially appellate tion commu- accepted in the scientific generally States, see v. United A.2d Griffin Porter, Daily Wash.L.Rptr. nity. (D.C. 18, 1992), engage Dec. we objec- some of the defense 503. He found judge’s of the trial determi a broad review be over- procedures the FBI’s tions to nation of DNA whether forensic use irrelevant, unsup- stated, some some gained technology general acceptance. Jones, Id. so, evidence. doing ported at 40. 548 A.2d 407, Jobe, objecting v. 486 N.W.2d “In of Minnesota in State to the admission of this evi- 9. (Minn.1992) dence, per- adopted contains a concise has 419-20 the defendant a 'scorched objections commonly of- object analysis of the strategy, suasive earth’ one leads to which him matching procedure. the RFLP virtually and, even, every aspect fered to FBI’s of each and this evidence question propo- the its motives of displays a ma- 11.E.g., government "virtual the Porter, Daily Wash.L.Rptr. at 120 nents.” jury," Appellee’s get a evidence before nia to 95; disingenuous as FBI “is as brief at 40 n. the alia, challenged, following: inter 10. Porter the artful,” 41; govern- terminology at the its is id. 1) declaring by practice 42; FBI’s a match “audacious,” position id. at "the so- is ment’s means; computer-assisted both visual and 2) testing ‘program’ proficiency ‘blind’ called results; replicate 50; test sham,” the FBI's failure government id. at ”[f]or FBI is a 3) inability precisely mea- litigation of the FBI proffer in the instant to make that VNTR; 56; absurd," hyperbole sure 4) id. “the at borders governing the absence standards foren- [!!] FBI fellow travelers of the typing; (this sic 5) lobby,” must one of the id. at 82 purported profi- a FBI’s lack of blind been “red- the FBI has few occasions baited”); which and, light evangelist quot- ciency testing program; the FBI is ”[l]ike ...,” 94; authority foregoing, scripture id. at his own ” 135; ‘stars,’ 6) significant alleged pro-FBI id. at ‘galaxy’ a dan- existence of “the entire 139; dictum,”id. pro-DNA ger positive scientists’ a false could be called at "nudum broad, without flat assertions match. “concatenation 5, simply ponderous Daily supporting authority Bridgett, supra, too note 120 Wash. See whole,” 145; 1701; Mohit, Report is supra, at the NRC L.Rptr. id. at see also 579 swallow 191; “sug- 994-95, encyclical,” “papal at NRC’s discussing id. at the use of Ethidi- N.Y.S.2d gested practice ‘robust’ scientific during gel electrophoresis, pro which um Bromide Jakobetz, process of theory supra, is ‘moribund’ due 955 F.2d at which cess described in Supreme Court law.” Id. at 792. The recent decision of the 636 Report community, generally

The recent has tance in the relevant scientific NRC meaning Frye, statisti- within the of the judge’s reinforced views. See Brid methodology by possibility which the cal supra, gett, Daily Wash.L.Rptr. 120 at being was random match calculated Porter, 1703-04. Neither nor the Public judge reject- thirty one million. trial curiae, Defender Service as amicus contention, noting ed this of a the existence brought any judicial to our attention deci controversy among substantial distin- holding implying sion or even guished as to soundness of scientists technology determining FBI’s a match assumptions certain on which this calcula- (as distinguished methodology from its Porter, Daily predicated. tion 120 was calculating coincidental Wash.L.Rptr. agree at 505-06. We match) general acceptance lacks rele analysis, has been judge’s the trial community.12 The vant scientific case law by subsequent further events. reinforced overwhelmingly supports judge’s the trial technology People conclusion that the “match” case very recent al., generally Barney, Cal.App. 10 accepted. State v. et 8 4th Cal. Vandebo — Dist.1992), (1st —, -, Rptr.2d gart, 616 731 the California N.H. A.2d Davis, prosecutor presented essentially the same (1992); State v. S.W.2d arguments government making as the (Mo.1991); Axell, supra, 235 Cal. persuaded. here. was not We The court App.3d Cal.Rptr.2d at 856 422- & n. at quote length lucid at Chin’s 7; II, supra, App. n. Wesley & analysis the unanimous in Bar 77-79, 199-201; Div.2d at N.Y.S.2d at ney: Bridgett, supra, Daily Wash.L.Rptr. currently a dis- There is fundamental precedents. citing all numerous agreement among population geneticists judge For reasons stated the trial concerning the determination of the sta- in this case opin- the courts significance tistical of match of above, that, pro- ions cited we are satisfied patterns. dispute recently fea- methodology vided the is properly FBI’s leading journal, tured in a Sci- out, possibility posi- carried of a false ence, Richard in which C. Lewontin negligible. match is tive “Even if erro- [an University and Daniel L. Hartl Harvard theoretically possible neous were match] University Washington attack the reli- ... the statistical likelihood of an artificial ability analysis, statistical while of DNA eight extraordinarily match at all bands Ranajit Chakraborty University of Axell, Cal.App.3d low.” K. Texas and Kenneth Kidd of Yale Uni- Cal.Rptr.2d 426. “Clinical errors are (Lewontin Hartl, versity defend it. & far more cause an likely to inconclusive Population in Forensic DNA Genetics no match than a false positive.” result 20,1991) Science, (Dec. p. Typing Mohit, supra, Any 579 N.Y.S.2d at 995. (hereafter Hartl) Lewontin & Chakrabor- by failure the scientists adhere to the Kidd, ty Utility Typing & The DNA is, course, appropriate procedure prop- (Dec. 1991), Sci- in Forensic Work subject inquiry, er but does not an raise ence, (hereafter Chakraborty p. 1735 at implicates Frye. issue Kidd)). & question and Hartl the relia- Lewontin D. The Prosecution’s Statistical Calcu- bility multiply- the current method of Controversy Among lations and the frequencies together the with which Scientists. frag- representative each of a DNA band court, prosecution In the appears trial ment in a broad data The base. put eggs single problem, say, elected to all of its in a is that is they this method below, (1) It and assumptions basket. contended maintains based on incorrect general represent- appeal, aecep- groups that there was members of the racial 12. But Pizarro, oratory’s generally accepted People Cal.App.4th protocol RFLP cf. (5th Dist.1992) Cal.Rptr.2d community). reliable within scientific (trial private whether lab must determine (and substructuring thus Caucasians, there is concede by

ed the broad data bases— frequencies) Blacks, of VNTR allele Hispanics and within their variance —mate random, i.e., regard assert ef- the data bases but groups at without within reliability frequency esti- religion, ethnicity, geography, and and fect on “trivial”, (2) fragments “cannot be detect- the DNA identified mates Kidd, processing independently (Chakraborty & practice.” DNA behave ed in 1736-1738.) “independent in a pp. and thus are statistical at supra, i.e., popula- language in the sense” — introducing Lewontin- an article equilib- ‘linkage genetics, they tion are articles, Chakroborty-Kidd Sci- Hartl (Lewontin Hartl, supra, p. & at rium.’ Hartl as describes Lewontin and ence 1746.) leading lights “two that, Hartl claim con- Lewontin and of nu- genetics” support who “have trary assumption to the of random mat- (Roberts, colleagues.” Fight merous each ing, subgroups ethnic within data (Dec. Fingerprinting DNA Erupts Over (i.e., endogamously base tend mate 20, 1991) (Science, (hereafter p. at specific persons subgroup) within a population geneticist Erupts)). A Fight religions ethnicity of like or who live University at of California at Irvine geographical close within distance. Such agree statisti- “that current said endogamous mating tends to maintain result in ‘tremendous’ cal methods could genetic subgroups— differences between not be used without errors and should substructuring existed when —which (Id. 1723.) empirical p. more data.” populations emigrated ancestral introductory article describes de- The yet had suffi- United States and stating “raging,” bate as “bitter” result, dissipate. time to cient As a charges flaring, “tempers are subgroups may have differ- substantial countercharges flying_ Dis- are [] frequency given ences observers, passionate who are few and fragment allele—identified VNTR —or between, argu- say that the technical far step analysis. A processing on both sides have merit.... ments given relatively may VNTR allele right and debate is not about [T]he subgroups common some but not different standards of wrong but about (Lewontin base. & broader data proof, purists on one side de- with the Hartl, 1747-1749.) pp. manding accuracy and tech- ^{[*] [*] [*] [*] [*] [*]} nologists on the other saying approxima- 1721.) (Id., p. good enough.” tions and Hartl conclude that be- Lewontin the Lewontin- Science concludes given frequency cause the VNTR Chakroborty-Kidd articles Hartl may among subgroups, ref- allele differ likely the notion that to reinforce “seem produce may to a data erence broad base community is indeed divid- the [scientific] frequency an inaccurate estimate for a standard, although ed” under the subgroup. current mul- defendant's may a few moot within the issue become magnify tiplication greatly method expected introduction years “with the resulting probability the error. DNA tech- powerful more even pattern may entire the defendant’s 1723.) (Id. p. niques_” in error or more orders of two 1 in million could magnitude (e.g., 7.8 released report, which was The NRC ' 78,000). (Lewontin articles, 1 in & really be the Science months after four Hartl, 1749.) supra, p. at acknowledges there is a “[s]ubstantial present concerning the controversy” strongly

Chakraborty and Kidd dis- (NRC analysis. of statistical They and method agree. contend that Lewontin 74.) report p. The does exaggerate rep., supra, at the extent of en- Hartl both debate, however, not, in the choose sides contemporary in America and dogamy the sake of substructuring on the relia- but instead effect of “assume[s] substructure analysis. They population DNA statistical discussion bility of exist_” pretation Subpopulation Hetero- rep., (NRC pp. at Variability geneity and Band Number see also id. 12, 80; 94.) p. at sjs sjt ^{[*] [*] [*]} sf: (1990) 45 Am.J.Hum.Genetics 367). along Evidently, Lewontin and Hartl — agree colleagues with their who with there are more point is not whether [T]he them, significant in both ‘number’ —are detractors,[13] or whether supporters than ‘expertise.’ Sci [Citation omitted.] (as amicus cu Attorney General and describes Lewontin and Hartl as ence claim) supporters right and riae leading lights population “two of the wrong[14] point the detractors are genetics” support who “have the of nu disagreement two there is between colleagues,” quotes a third merous groups, significant each both number (Francisco population geneticist Ayala) (a expertise controver “[substantial agrees criticism. who above report). sy,” in the words of the NRC Erupts, supra, (Fight 1721.) p. at Le- rep., supra, at 74.) (NRC p. Even Sci his wontin has described one of been ence, sought purportedly which balance regarded as the colleagues ‘probably by commis coverage dispute of this its popu important intellectual force most sioning Chakraborty-Kidd article (U.S. v. Yee genetics lation alive.’ article to the Lewontin-Hartl a rebuttal 181.) (N.D.Ohio 1991) F.R.D. Au Fair to its Was Science (Roberts, criticism of the statistical calcula Similar Science, (Dec. 20, 1991) p. thors? at analysis process tion of DNA have been 1722, recognized competing arti previous leveled other scientists the notion likely to reinforce cles “seem admit publications, some of which were community is indeed the [scientific] DNA Lander, (e.g.,

ted in evidence below under standard. divided” Trial Fingerprinting on (June 15, 1989) Erupts, supra, {Fight 1723.) p. Nature, 501, 504; Cohen, pp. Kelly[15]-Frye Fingerprinting Forensic not to under Our task Identifica tion: Potential on Data Inter- dispute over the relia- choose sides Effects scholarly pick appeal sides in the are well advised not 13. In its brief on government repeats argument below that about eminent scientists controversies between genetics. biology population As press peer-reviewed articles in molecular scientific observed, Frye hearing sufficiently theory dem- the time of the "[t]he one scholar general acceptance of fixed bin surpass everyday onstrated the technology knowl- of DNA far analysis. appeared More articles have either fact, specifically edge. only trained in those accepted publication or been since that chemistry biology popula- [and molecular time, however, making apparent more even genetics] begin to understand tion can even overwhelming weight supporting scien- Norman, Fingerprint- concepts involved." authority. Of the articles and letters tific Trial, ing: Ready It For 45 Univ.Miami Is L.Rev. journals human that discuss the therefore, We, (1990). elect instead genetics component of forensic commen- Mountararat’s musical to heed Lord analysis, peer-reviewed at least 18 arti- tary on the House of Lords: methodology support the cles and ten letters issue, Peers withholds And the House of only while while 6 articles and commenta- hand, question legislative it. Further reflect- ries and 7 letters ing Its ap- support, this broad over 45 scientists statesmen do not itch And noble pear as either authors or co-authors with matters which To interfere articles, only while a dozen scien- understand, "favorable” They do not critical arti- tists authored or co-authored the rays bright Britain’s As will shine Great the editor. cles or letters to days! King George’s glorious As in foregoing passage, the think that We Iolanthe, Act II Gilbert & William Sullivan, Arthur government asks this court to choose between (1882). hereditary only peerage not the unimpressive basis of rather scientists on the numbers, government can benefit from branch of precisely make the kinds and thus to lordship’s his counsel. Frye requires a as to which of determinations experts. consensus of Cal.Rptr. Kelly, People v. 17 Cal.3d 144, (1976). "abstruse, intensely 549 P.2d 1240 light technical of the 14. In involved,” Hopkins v. standards [scientific] 1297, State, (Ind.1991), courts N.E.2d 1303 579

639 pro- something much more than lack bility calculation statistical say pro- unanimity. We cannot general lack cess. Once we discern a FBI by which Cellmark and the cesses this in- acceptance scientific in —which frequency of defen- estimated the palpable have no choice stance is —we profiles “general has found dants’ expres- line” exclude “bottom population in acceptance” the field significance its sion of statistical in cur- Accordingly of the genetics. evidence rent form. frequencies of the defendants’ estimated 814-19, Barney, supra, Cal.App. 4th at 8 Because profiles is not admissible. 740-43; accord, Pizarro, Cal.Rptr.2d 10 inadmissible, frequency estimates are 78-90, 12, Cal.App. supra 4th at n. profiles is a match between evidence of Cal.Rptr.2d at 451-58. also inadmissible. in Barney The decisions Pizarro are 316; 162-63, (citation Id. 596 N.E.2d at true, Although no aberrations. it is as the omitted). in Similarly, Bridgett, contends, government the decisions Richter wrote admitting probabilities DNA match out- re- the Defendant’s contentions while result, reaching contrary number those procedure are garding the FBI’s RFLP (and great certainly imbalance not as merit, the issues raised concern- without significant) government sug- as the ing the FBI’s calculation of majority of gests. In a the cases which are meritorious. Several estimates probabilities have been admit- these match court, courts, including have the Porter ted, the defense failed evidence because either excluded DNA evidence controversy among scientists which the lack of consensus in recognized in the NRC has since been Re- unreliability proba- community or the port in Barney.16 and described detail bility attached to the declara- estimates Indeed, magazine the articles Science Moreover, many scienti- tion of match. controversy focused attention on is- have written on the fic articles been had not written at the that the been time in favor critical of and sue both government cases which the relies were methodology employed by the calculation decided.17 FBI. In Lanigan, Commonwealth v. (footnote18 Daily Wash.L.Rptr. at 1704 (1992), 154, court, Mass. 596 N.E.2d 311 omitted). also citations19 Vande discussing recognition after NRC’s — at --, bogart, N.H. supra, report among of the current debate Houser, 493-94; 241 Neb. State v. A.2d at population concluded geneticists, (1992); 168, 182-84 525, 545-50, 490 N.W.2d 218, current, lively, very dispute Cumin, still v. 409 Mass. Commonwealth (1991); 440, regarding 220, role of 442-45 State

described above 565 N.E.2d 5, Pennell, A.2d 517- constitutes note substructure Commonwealth, 275, erupted in Science December Spencer v. Va. debate that 16. In denied, (1989), landscape changes S.E.2d cert. consider the scientific 759, 107 493 U.S. 110 S.Ct. L.Ed.2d 775 indisputably ably that there and demonstrates relies, (1990), government a case on which the acceptance process.” general of the current no acknowledged defense counsel that DNA tests Cal.App.4th 10 Cal. Barney, supra, 8 accepted he as reliable and that was "unable Rptr.2d at 744. produce qualified expert to one de to find or theory printing or the bunk either footnote, Judge Richter cited a omitted generated But see the statistics therefrom.” decisions, unre- of them other some number of very recent decision Satcher v. Common probabilities ported, in which evidence of wealth, 244 Va. 421 S.E.2d consensus. lack of scientific excluded for (1992), Virginia Supreme Court of in which the holding Spencer face adhered to its the presentation. the Lewontin-Hartl 19. The citations included sophisticated defense much more maga- Chakraborty-Kidd brouhaha in Science prior 17. "Whatever the merits of the decisions zine. process on the statistical calculation ... 640 among acceptance general The lack extent the decisions of

20.20 To the FBI’s proposition that the Yee, scientists magistrate in 134 court and the sufficiently methodology is ac- bin” “fixed 165, 202, contrary, we F.R.D. at are to the match support a coincidental curate to them, espe- respectfully decline to follow (or thirty forty) mil- of one in probability Yee developments cially light since however, conclu- lion, compel does decided. at all no estimate sion that government argues further that the explain jury. As we presented to probability calculation should have FBI’s below, of the existence demonstration objec defense admitted because the been appropriate scientists among the consensus not to its go weight to its tions to modest calculation would as to a more noted, admissibility. judge As the trial sufficient. however, ignores the fact government “the is at probability feature which that it is the Consensus? A More Conservative E. Port very core of the evidence.” judge the trial focused parties er, Wash.L.Rptr. at “Since Daily 120 Frye hearing on the at the their attention samples means a match two DNA between Frye, whether, question consistent with the calcu probability, data on little without ex- entitled to introduce prosecution was inte probability is an lation of statistical proba- the effect that the pert evidence to underlying process and the gral part of the (or thirty match was bility of a coincidental arriving calculation must method of at that judge correctly forty) one. The million to Axell, Kelly/Frye.” pass muster under acceptance general no found that there was supra, 235 Cal.App.3d at 1 Cal. for the group of scientists by the relevant permit Rptr.2d at 430. would “[W]e methodology is the FBI’s proposition that showing results the admission of test support a calcula- sufficiently accurate (a result) tell positive DNA match without no specific odds. There was tion of these jury anything about the likelihood however, below, such as to whether inquiry supra, Curnin occurring.” of that match of a more support existed in a consensus 7, at 442-43 Mass. at 222 n. 565 N.E.2d figure. conservative — Vandebogart, supra, 7; see also n. game, is not a but “A criminal trial 494; Barney, —, N.H. at 616 A.2d at v. United truth.” Womack quest 816, 10 Cal.Rptr.2d supra, Cal.App.4th (D.C.1976); States, see 381, 350 A.2d at 742. Nixon, 418 U.S. 683, States v. also United probability of a coincidental Since the n. 3108 & n. 94 S.Ct. 710 & part the DNA is an essential match (1974). aim of “The twofold L.Ed.2d 1039 evidence, since there is no consensus guilt not es- is that shall justice criminal calculation, Nixon, accuracy the FBI’s to the suffer.” cape or innocence objec- the defense (quoting we decline to hold at 3108 418 U.S. at S.Ct. precise States, calculation go only 78, 88, tions to 295 U.S. Berger v. United Pierce, But see State (1935)). weight. 629, 633, 79 L.Ed. S.Ct. 494-97, 500-01, case, N.E.2d prosecution seeks to St.3d Ohio (1992) (distinguishing 107, 111-12, corroborate DNA evidence to introduce the Port- noting that Ohio anticipated identification cases based an Kevin Frye; complaining holds that ob- follow witness. does not er “[W]ith evidence, uses 3-5 technology, included which today’s loci/21] to DNA jections patterns can be experts’ of odds of match between two prosecution calculations the two strong evidence that against a coincidental considered to one forty billion the same source.” samples came from match, weight of such evidence go to the supra, at 74. Report, There is thus NRC admissibility). not to its loci. prosecution's probability In this four which the 20. Cases in conserva- excluded but more calculations were admitted are discussed estimates were tive D, Part III infra.

641 (Okla.Cr.1986) (blood 834, with charac strong; 841 that evidence is the no doubt such popula in of found teristics victim strong? If the 0.48% only question real is: how Jones, 44-45; supra, 548 A.2d at tion); against a match are odds random substan cf. Kim, 398 N.W.2d 544 v. but see State tial, then it be a remarkable coinci would (contra, minority (Minn.1987) expounding dence, least, say complaining if to State, 933, 942, v. rule); 840 P.2d Rivera rapist, but identified Porter her witness 30, 1992). These (Wyo. Oct. 90-163 No. by crime committed if the was nevertheless in DNA apply equal with force principles just happened someone else whose DNA 217, Deppish, 248 Kan. v. cases. Smith respect with to each of four match Porter’s 144, Mar (1991); 235-39, P.2d 157-59 807 happen, an alterna loci. “Coincidences but 694, State, 549 So.2d (Fla. tinez v. 696-97 happen explanation predicated tive Mohit, supra, 579 People v. App.1989); ring stance is often the one that has 993, 999.22 N.Y.S.2d at States, 614 A.2d Byrd v. United truth.” Dis (D.C.1992) (quoting Mohit, Poulnot v. 25, 32 hit the nail court Columbia, (D.C. 134, passage: trict following revealing A.2d 139 608 head 1992)). a If, found reliable as will be made, probabilities at- match is but against a The odds coincidental match do reliable, propo- should the tached are thirty to be to one for not have million be denied its admis- nent the evidence admissible. evidence of the match jury sibility altogether? Shouldn’t any offered conduces in the evidence “[I]f and that know that there was match degree probabil- to establish the reasonable being possibility perpetrator of the ity improbability of the fact in controver- re- defendant other than the someone Home go Ins. sy, jury.” to the should mote, say precise- if difficult even it is Weide, Wall.) 438, 440, v. (11 20 Co. 78 U.S. If, example, many how ly remote? see also Martin v. Unit- (1870); L.Ed. 197 agree community the scientific would States, 120, ed (D.C.1991). 606 A.2d 1,000,000, is 1 Accordingly, percentages on “[population others, doubting accuracy reasonably possession of certain combinations number, only agree can to 1 of that characteristics, upon estab- blood based least know 100,000, jury at shouldn’t facts, lished are admitted as relevant The de- number? the more conservative Washington, State v. identification.” 229 reasonably preju- claim fendant could not 47, 59-60, 986, (1981) Kan. 622 P.2d bring dice, prosecution could still and the (0.6% had defendant’s evidence to important and reliable see also factors); combination of blood jury’s attention. Gomes, 258, v. Commonwealth 403 Mass. at 993. 579 N.Y.S.2d 1270, (1988) (defen- N.E.2d disagreement among describing dant blacks United States After 1.2% have discussed among was consistent scientists which we whose blood with evidentia- judge in Moh- State, supra, 638-639, Plunkett ry sample); pages 719 P.2d (or infinitesimally disagree fingerprint prints) is so 22. We that ad- Porter’s contention negligible. proba- to be mission statistics as to minuscule small as 1991), Brown, (Iowa bility unduly prejudicial. of a random match 470 N.W.2d 30 In State v. court, pas- persuade foregoing us quoting “The defendant fails to after Martinez, will sage admission DNA identification evidence evi- observed that "statistical improper identity to an trial mathematics.” Peo- lead the issue of dence does not remove 267, 278, Adams, Mich.App. ple v. disregard or jury, which is free to from the (1992). 33; accord, court N.W.2d As the stated in testimony.” expert Id. disbelieve Martinez, supra, 549 So.2d Adams, Mich.App. Garrison, 120 also State v. N.W.2d at 198. See adopt position, Martinez’s we will ex- [i]f we (en banc) (1978) P.2d 563 Ariz. probability testimony where it clude statistical (trial testimony Indeed, properly that the admitted cogent_ court [the is the most logic] might defense con- finger- breast were teethmarks on the decedent’s to the lead exclusion of evidence, and that print sistent with those made Garrison which also based on the having theory person made probabilities of another the chances mathematical million). eight bearing one were about chance two individuals the same them it stated that “the fact difficult, appellate it is be unfair to Porter for the (and ex cathedra knowledge, proclaim precise given state of to be minimal) precise, probability of a match does not mean that conservative coincidental Id. crossing on the issue numbers cannot used.” 579 without swords in the court below. Expressing N.Y.S.2d at 999. confidence segment that “no of the credible presently The information before community probability would claim that the however, suggests, the odds any estimates ... in this case or other against being a match the result of a coinci- 100,000, id.23 higher could than 1 in be extremely high dence are even if one uses (rather 67,000,000 by 1 in than as claimed the most conservative reasonable calcula- People), judge prose- held that tion. permitted cution would be to introduce evi- Barney, In the court admitted match, proba- dence of the but that the FBI one of the defen evidence that the blood of bility in estimates would be limited accor- evidentiary sample in his dants and the Id. agree dance with decision. We his type case “shared an unusual blood found analysis. with this only persons in 1.2 out 1000 in the Black 828, population.” Cal.App. 10 8 4th at Cal. Identifying F. the Consensus. Rptr.2d holding In the trial 748. (but judge had committed error harmless judge We leave to the trial the initial error) when he admitted evidence requisite as determination to whether DNA match probability of a coincidental consensus now exists for a conservative million, one in hundred the court two probability statement of the of a coinciden- recognized and, so, tal if probability match what the so, part, case. We do irony finding frequency estimate upon by 1,000 significant because this issue was not focused of 1.2 to be while during the court and excluding counsel DNA evidence which would orders six hearing.24 Although appears improba- by in error have to be five ble, events, light degree magnitude of recent that no con- of error not —a found, servative can Hartl —to consensus be it would even claimed Lewontin and question probability Other cases in which calculations We think the whether more conser- proposed properly more conservative than those prosecution vative consensus exists is nevertheless were admitted into evidence in First, before us. the authoritative Report, NRC State, 278, 288-89, clude Caldwell v. 260 Ga. 393 Frye hearing, which was issued well after the 436, I, (1990) Wesley supra, S.E.2d 443-44 important provides support of a for use more 331-32, 659, Misc.2d 140 533 N.Y.S.2d figure, conservative as do several recent deci- recently Wesley affirmed in II. Kennedy’s ruling, Judge sions issued since in- cluding Bridgett. judge Mohit and antici- theory not assert one "[P]arties trial things, Report pated might change that the NRC M.T., theory appeal." and another on D.D. v. given opportunity be to deter- he should (D.C.1988) (quoting A.2d Hackes v. Second, Hackes, (D.C.1982). mine if it has done so. admission of A.2d "Points of, precision probability not asserted with sufficient evidence of a coincidental match [in distinctly party's trial to indicate the- say, thirty arguably court] one in thousand is "lesser normally spurned appeal.” sis will Hunt- prosecutor included” relief where States, (D.C.1992) er v. United 606 A.2d sought testimony to elicit that the odds are one Avirom, (quoting U.S.App.D.C. Miller v. thirty Finally, million. the case is one of (1967)). F.2d These and, general public importance, as our first ven- principles apply rigorously government as to the subject, potential ture into the has the for be- they do to a criminal defendant who faces coming significant precedent jurisdic- in this liberty. appeal, the government of his Even on loss long procedural pre- tion. So fairness is rely principally continues to procedure served—and we think our remand argument probabili- that consensus exists as to a it, preserves for Porter has had or will have an ty thirty of one in million—a notion which we opportunity to address all relevant issues—it is (The emphatically reject opinion. gov- in this imperative that a case in which so extensive a argument make an ernment does alternative developed record has been be decided in con- reply support its initial and briefs in of a more formity legal principles. with correct conservative statement match.) coincidental con- samples “appropriately known approach equivalence. a reduced This servative.” not, however, our find- does undermine methodology, general acceptance, report but rather formulated a no calculates the ceiling principle, which the need a low underscores to find incorpo- a random match chance of agreed signifi- threshold of statistical by opponents leveled rates the criticisms cance for DNA evidence. methodology. Since the of the FBI’s 6, Cal.Rptr.2d at n. 6.25 Id. at 826 n. employed principle may ceiling rejected Bridgett, Judge In Richter proper population sampling is until the government’s proffered probability evi- formulated computed, the committee has dence, agreeing Kennedy effect, ceiling principle: a modified the prosecution had failed to demonstrate version of the conser- more conservative general acceptance the FBI’s methodolo- ceiling principle. The modified vative gy. judge held that a nevertheless ceiling principle may employed be more estimate based on the conservative frequencies are taken present since the Report’s ceiling principle” “modified NRC This existing databases. modified Having was admissible. noted the stand- fre- largest requires that formula of that impartiality of the authors be quency from the current databases study,26 judge wrote as follows: frequen- for the defendant’s allele used de- frequency this cies. Once been This lack of consensus should termined, upper one calculates the 95% not, however, probative exclude DNA ev- limit, applies frequency confidence if idence the deficiencies can be corrected 10%, larger. The com- whichever through the esti- use conservative recommends the use mittee 10% Indeed, report mates. assumed NAS frequency floor account for the un- populations may that be certain stratified frequencies. sampled populations’ allele phe- or substructured and that such a appropri- This Court finds formula nomenon would be evident determining prob- ate under frequencies employed by the FBI since to match ability applied to be estimates is a Hardy-Weinberg poor rule test declaration. disequilibrium. The con- report to detect (footnotes Daily Wash.L.Rptr. at cluded, however, that such deficiencies Report omitted). and citations to NRC completely

should not function exclude courtroom, DNA evidence from in Bridgett appeal from the decision No by ensuring us, point be corrected that the do at this is before we Judge analy- definitively estimates of a coincidental Richter’s rule remand, the court On evidentiary match between the and sis and conclusion. report Barney, to the Court's determina- which con tive is central calculation lacked already sensus had been received in evidence. members A review of the committee tion. position in The court was therefore no to direct a distin- the committee itself is reveals that figure placed be before that more conservative guished of the scientific commu- cross section Lanigan, jury. likewise true in This was Indeed, nity. included committee members supra, in the court reversed a conviction Lander, outspoken critic Dr. Eric an in the admission of a calculation of one 2.4 after methodology whose views were and one FBI’s showing no million for which there had been general forthrightly in this promoted the defense community. acceptance in the scientific Thus, that and in Porter. committee’s case Mass. at 596 N.E.2d 312-13. reliability regarding the of foren- conclusion analysis, typing, specifically RFLP sic (NAS) Academy of Sciences The National proffer a conservative method typing report published on forensic DNA [its] easily calculating probability estimates can the decision rendered in interim between general acceptance equated of those arguments case and the held in the Porter oral methodologies com- in the relevant scientific gener- report reinforced the in this case. That Indeed, spectrum munity. and, terms of reliability typing al- al of forensic DNA (cid:127) existing scholarly opinion, the re- though noted the in the scientific dissension port cautious end. falls well towards the community employed by over the calculations (footnotes laboratories, Daily provided Wash.L.Rptr. at omit- typing the NAS an ted). This defini- alternative calculation scheme. holding holding by judge another trial anoth and counsel should address the (see United Bridgett panel er ease not before this potential applicability Bridgett, States Daily Wash.L.Rptr. this case.27 May (D.C.Super.Ct. 1992)), my colleagues issuing polite IV Judge Kennedy to reverse invitation CONCLUSION “a search for himself the interest of join in respectfully truth.”1 I decline to reasons, foregoing For the trial (1) I invitation because believe denying government’s court’s order Kennedy correctly applied the Judge stan motion introduce evidence is vacat- States, Frye v. United dard, App. ed and the case is remanded to the trial (1923), F. 1013 that a scientific D.C. proceedings further consistent sought must technique to be admitted opinion. with this gen sufficiently gained to have established ordered.28 So acceptance particular field in eral (2) belongs, he cor which it MACK, Judge, dissenting: Senior holding the admission of DNA rect I Kenne- would affirm the order of evidence, integral its multifarious but with dy. tempted say I I am that would do so facets, acceptance gained general had not many for of the reasons stated respect aspect critical and there with a However, emphatically I majority. since further studies. I also fore should await disagree disposition I with the of this comprehensive report of believe that express my write to reasons. Technology on DNA Fo Committee vacating Judge Kennedy, (published by In order of The National rensic Science 1992) not re- remanding light and for of Research Council2 in does consideration game very trial is a 27. We note that in three recent decisions in 1. The sentence criminal "[a] ” probability repeated quest which it was held that FBI match in Womack v. but ‘a for truth’ is received, (cit- improperly States, (D.C.1976) calculations had been United 350 A.2d expressly courts have endorsed what the Su ing opinions) other omitted where the issue preme Judicial Court of Massachusetts has de a trial court had abused its discretion whether considered, scribed as national call for "[t]he obviously directly questioning a witness—an approaches testing, conservative to DNA such as ruling from that of a different issue ceiling frequencies.” Lanigan, supra, the use of evidence, admissibility particularly the ad- 316; accord, 413 Mass. at 596 N.E.2d at missibility meth- of a new and novel scientific Barney, supra, Cal.App. 4th at 10 Cal. odology. .Surely suggesting are not that in we — 745; Rptr.2d Vandebogart, supra, see also truth, may for a court the interest of a search at -, (remanding N.H. 616 A.2d at 494-95 admit the inadmissible. there to trial court a determination whether regard this the comments of Professor In general acceptance NRC's recommended is [citing McNaughton, Lawrence A. Tribe Hart & ceiling principle). Judge general ap Richter’s Law, Evidence and Evidence Inference proach Bridgett company. is thus in excellent 1958) (D. perti- Lerner ed. ] Inference nent: parties 28. The and amicus have asked us to forget It be a terrible mistake to would procedural a number of and other is- address lawsuit, criminal, typical whether civil or light reach. In of our sues which we decline to only part objective an search for historical however, holding, basic we do not think that also, importantly, a truth. It and no less hearings necessary extensive will be in fu- complex pattern gestures compris- See, Jones, ritual —a litigation. generally, su- ture DNA McNaughton Henry what Hart and John pra, pretrial inquiry A.2d at 43-46. Some “society’s line of defense in once called last necessary identify in some cases to indispensable peaceful effort to secure the conservative estimate of the persuasive If there is some settlement of social conflicts.” random match. Tribe, private reason to doubt that the FBI or laborato- Lawrence A. Trial Mathematics: See Process, ry conscientiously protocol Legal followed its own Precision and Ritual procedures correctly, (1971). howev- and conducted the er, Harv.L.Rev. pretrial also hold a the trial court should See, are drawn from the hearing e.g., 2. Members of the Council limited issue. State v. on that Science, Jobe, (Minn.1992); Academy of People Councils of the National N.W.2d 956, 977-78, Castro, Engineering Academy the National and the 144 Misc.2d 545 N.Y.S.2d v. 985, 1989). County (Supreme Ct. Bronx Institute of Medicine. briefly opinion result, so let me turn to quire any but in fact reinforc- other reviewing. Kennedy’s analysis respect we are Judge es method- nonacceptance of the FBI’s II. calculating guilt. ology probabilities Technology Committee on in Fo- Kennedy’s im- by Judge impressed I was Science, Coun- rensic National Research difficulty ap- recognition mediate Technology cil, In Forensic Science analy- to forensic plying Frye test (1992) [NRC Report], clini- demanding more than sis—a task far (the analysis feature cal since involved estimates”) making which is “probability I. analysis. to clinical completely foreign view, my controversy the existence of noted, fact complexity, he stems from the negates scientists the existence of between upon principles DNA evidence draws acceptance. suggested pre- general If technology from a number of different my colleagues prevails in mature bent of study implicates the spheres Porter, jurisdiction, unknowing an Mr. history sociology as well. It was jurors, unsuspecting panel an and ulti- population genet- “assumptions” about mately hapless lawyers and scores of gave pause ics him cause —as- engulfed a sea of contro- judges will be convincing proof sumptions made without versy. This neither an answer to crime Caucasians, Blacks, Hispanics are exciting potentially nor a use of re- wise without homogeneously populations mixed of science. I reach this conclusion sources FBI’s significant subgroups. The failure specific issue here is not because recognize subpopulations, diverse “fingerprint” whether a scientific is admis- thought, produce tremen- Kennedy could trial; in criminal it is sible as evidence reasoned, because, the he dous error. And computer-assisted rather mathe- whether very core “probability feature” was the computation designed matical to show the evidence, such evidence was “at of DNA innocence, guilt valid and inadmissible in the cases before this time” only ge- assumptions if certain about the him. netic structure certain Census Bureau valid, admissible, populations are in turn is III. among in the face of a bitter distin- debate compendium ex- study is a The NRC guished population in geneticists, and the commentary de- pert extremely helpful and any absence of studies of direct analy- tailing aspects of DNA the technical conglomerate the of races and ethnic complexity, sis, exciting possibilities, its its (with groups subgroups) up that make power. speaks It to the its immense and by implication my America. The col- disadvantages advantages and leagues report that Committee NRC here), (including that at issue methodology (which itself) this court can read for re- by to its use implications attendant quires vacation and remand is warrant- society as whole. legal system and report does not controver- ed. The disavow re- controversy with speaks of candidly It I sy expressly concedes it. read the mat- spect to and constitutional sensitive assumptions suggestions interim ad- regulation. ters, need for and of the Committee, being by the made in vanced as us report tells what the outset trying to solve the contro- At the interest profiles and Comparing DNA versy through compromise, not DNA is not. as indicat- notes, fingerprints, the Committee ing general acceptance. I read them as latent exists, DNA evi- caution, it only that where directed to the inter alia words of probative than have, more dence will often be in unwarranted jurisdictions which more haste, fingerprints are fingerprints but that themselves to the admis- committed profiles the DNA than sibility highly also to those individualized of DNA evidence but being used present technology jurisdictions considering are the is- based which Report, in NRC my doing I state forensic laboratories. sue. Before reasons recurring technology If there is one “Only DNA is Id. at 146-47. 112-13. when again again it is sequencing entire three bil- theme that surfaces capable of genome suggestion accuracy could a that and reliabili- basepairs person’s lion of a ty, acceptability require as con- methodol- pattern considered to be and thus be fingerprint pat- ogy independent of the race and complete stant and as a significantly, group subject. of a tern.” Id. at 112. More ethnic Judge what I see to be a confirmation of Significantly, clarifying in a foreword to “probability Kennedy’s conclusion that Committee, apparently dis- report, very at the core of evi- feature” is press as a turbed what it characterized dence, say function,” “quintessentially appellate in specifically parties offers advice to our should exercise the same caution. See legal system pitfalls as to to be avoided. regard proficiency Tuesday, April the accreditation and 3. On headlines in the We Seeking testing typing of DNA laboratories as essential New York Times read "U.S. Panel Re- Courts, reliability, accuracy, ac- striction on Use of DNA in Labs' Stan- to the scientific Faulted, Judges typing in the ceptability are Asked to Bar Genetic of DNA evidence dards fu- “Fingerprinting" Until Basis in Science is ture. Laboratories involved in forensic Kolata, Stronger." April quali- typing quickly N.Y. establish Gina should move Times, 1992, Al, ty-assurance programs. C7. a sufficient After quality-assurance implementation time for begins: long-awaited Federal The text “[A] qual- programs passed, view courts should technique report powerful genetic on a new for ity necessary general acceptance. control as identifying suspects says criminal it should not added)). (NRC (emphasis foreword Report, in court in the future unless a more be allowed quotes is established.” It a de- scientific basis Report emphasizes new methods 5.The NRC reopening lawyer predicts fense who of cases individuality person’s demonstrating in a prosecutor and a who terms the Committee’s stage development. Acknowl- DNA are in a report "irresponsible.” Id. report edging will that methods outlined methods, likely superseded by other new part: 4. The NRC foreword reads relevant NRC cautioned analysis that the use of DNA We recommend typ- including must be taken to ensure that purposes, [c]are the resolution for forensic cases, purposes ing techniques do used for forensic civil be continued of both criminal and prematurely. changes suggested in’ Other- improvements not become ‘locked while wise, system society justice being the criminal report There is no need this made. maximal benefit general use of the will not be able to derive a moratorium on the technology. investigation typing from advances in the science and of DNA either in results Report, 49.) (NRC or in the courts. You throw independent of the other. States, 455 A.2d Ibn-Tamas United J., one, get- in six (D.C.1983) (Gallagher, concurring). you have one chance The same “[Sjcientifie ting particular neces- a number. evidence its nature special you of them sarily impact jury. has a on a This If throw both the second. judiciary proceed with in 36 of why together, you is should have one chance caution, numbers, numbers, where the evidence the same getting reasonable two whatever, theory, a distin- comes as new scientific two ones or be- two sixes or guished a independent from well established field....” events. cause those are proba- Id. frequency multiply You becoming bility die a six of one IV. gener- you becoming other die a six and a one in 36. ate number this feature that is so probability What is technology validity critical to the slightly different be- genetics With it’s is, in the forensic arena? It under profile can be obtained cause ... methodology sought circumstances of ways. can top band two different here, my “game” be used mother and the band from the bottom colleagues say is not. It is a criminal trial be from the father vice can versa]. [or analysis not a clinical but a mathematical profile frequency is deter- And so the upon calculation based theoretical models. multiplying frequency mined expert appearing The FBI before percent six times the one band which is testify- Kennedy confirmed that he was not band which is frequency of second posi- a that DNA match resulted a pro- these percent times two since five describing tive match identification. files two different can be obtained steps taken rule on ways. obtaining any one coincidental match .008, example, This in this number then spoke preparing profile he data profile. frequency this two band is samples “particular base from blood numbers in Assuming these are accurate (Caucasian, Black, population” & Hispanic population. Indian), measuring frequency American saying there one equivalent It’s sample category each in that “bands” twenty every hundred and individual assuming independence ... particular profile.[8] have this five that applying multiplication of each band and 2, 3, (Trial Transcript, 128- Jan. game rule. He used example of dice 29.) process:7 to illustrate the one, commonly pair multiplication take This exercise

Let’s dice. Each die, assuming “product as the rule.” they’re honest dice or referred to wrong, skeptical a Lempert, the scientists are consen- 6.See also Richard Some Caveats Con- If cerning regarding DNA as Criminal Evi- lies where the truth should sus Identification Bayes, With to likely dence: Thanks the Reverend emerge enough, and little harm 13 soon (1991): 303, Cardozo L.Rev. to occur in the meantime. possibility the While law must admit the wrong, explained product multipli- that what most scientists "know” deciding a 7. One court scientifically a court what is sound by to a of 10 rule reference cation proceed as- can do no better than to selecting probability of and the automobiles generally sumption that what scientists know unseen) (sight or a one of a certain model correct. But if there is substantial dissen- People Wesley, v. 140 Misc.2d certain color. 306, community, within the relevant scientific sus (N.Y.Crim.Ct.1988). 533 N.Y.S.2d sphere in a scientists who are or if certain the expert disagree a the most in matter with frequency of the two how the 8. It is unclear scientists, other the evidence conclusions of computed the profile .008 based on was band being. for the time Given should excluded example multiplied the preceding fre- procedures general adequacy at the of trial (6 percent) times the fre- quency one band time, any particular point in we should (5 percent) times quency the second band overwhelming jury with information risk equation provides band fre- a two two. This validity propositions rests on that whose questioned = .05) .006, [2(.06 quency .006]. not .008. X by many knowledgeable scientists. identity. philosopher, In a Thomas In the issue trial was Rev. Collins as a a Bayes suggested prosecutor The called witness mathe- a mathematical formula “Solving a matics who testified that Problem the Doctrine of instructor Chance,” combining probability of the occurrence of six mutual- a formula intuitive (i.e., yellow guesses probabilities ly “independent” events auto- with based fre- Tribe, mobile, mustache, girl pony quencies, man with with see Prof. 84 Harv.L.Rev. tail, hair, discussing girl Negro with blond man with seq, Bayes’ et Theorem. car) beard, Bayes, Essay couple equal was Reverend Thomas An To- interracial probabili- Solving product ward a to the individual Problem in Doctrine Trans, Philosophical Chance, Applying ties that each event would occur. Royal Society (1763). probabili- a product assigning NRC Re- rule and See also port events, prosecu- my knowledge, ty To our for each of the six at 85. trial calculated, (at argued, there prior least time of the tor that was courts a have one chance twelve million that random- controversy) not been asked couple description argument employing ly chosen would fit the testimony admit weighing provided by Cal.2d at “product rule” in the evi- the witness. 68 Cal.Rptr. at 501. dence. P.2d Tribe, testimony holding the mathematical highly Professor a technical and In analysis, prosecutor’s argument inadmissi- exhaustive uses case and the California ble, Supreme gave the risk of seduction mathe- the California Court illustrate product suggests rejection He probabilities. matical that four reasons (1) empirical obscurity that no evi- “the relative that makes them at rule: there was support impenetrable by layman once and im- dence to the assumed individual continuing (2) pressive probabilities, that even if the assumed to him—creates risk correct, the give probabilities that themselves arguments he will such cre- were independence they weight multiplication presumed dence and a deserve they (which unsupported was logically cannot claim.” 84 Harv. of each factor (the false), (3) rule plainly product L.Rev. He concludes overall (with exceptions) a substan- possible notwithstanding) defined there remained costs prosecution’s attempting integrate tial wit- possibility mathematics legal lying or that fact-finding process into the trial could be mistaken or nesses disguised, and outweigh couple have been benefits. could probabili- (4) equate the that was error question, the California case in couple ty randomly would that a chosen Supreme state Court reversed a conviction incriminating characteristics possess the robbery during trial after a which a any given couple probability that with the placed probability theory jury. before would be possessing these characteristics Collins, People Cal.2d innocent.9 (1968). The Cal.Rptr. P.2d case concluded robbery elderly Supreme of an Court involved woman. California inevitably neighbor product rule victim and her testified that “would re they yield wholly exaggerated young had seen a Caucasian woman erroneous components if all the individual hair run from the scene into a sult even blond precision.” had determined with Col yellow car driven a black male with a been lins, 438 P.2d at days supra, 68 mustache and beard. Several later Cal.2d 39, fitting Cal.Rptr. The Court warned police couple the this at 503. arrested Id., 321, “mathematics, a veritable sorcerer description. 68 Cal.2d at 438 P.2d that society, assisting 34, computerized Cal.Rptr. at 498. our while Thus, any explained population. probability has the 9. The error been as follows: If this characteristics, couples suspect given couple, in the possessing there were population, million these probability couple, two, and if the approximately one in would be innocent is randomly suspect population, from the chosen Lawrence A. and not one in twelve million. having the same characteristics was one in Tribe, 84 Harv.L.Rev. million, couples two such exist in twelve then truth, colleagues summarily they the trier of fact the search deal with what spell principles must allowed cast a over of the “Har- term the “esoteric” [be to] him.” 68 438 P.2d Cal.2d equilibrium” “linkage dise- dy-Weinberg Cal.Rptr. at 497. precisely what the “bit- quilibrium,” this (lifted controversy” they describe ter V. opinion Judge the Chin a Califor- from analysis, From this a stark conclusion case)10 nia is about. emerges. While one thinks of mathematics details this contro- NRC Committee science, precise as a the result one reaches stresses, again versy. As the Committee depends upon the one into numbers factors again, validity multiplication the of the equation. any attempt integrate the employed by depends upon the FBI the rule product fact-finding pro- rule into the substructure, population be- absence of trial, assumptions cess certain must be only special in this case are the dif- cause probabili- made. Events to which assumed (or polymorphisms) ferent alleles statisti- independent are assigned ties must be (as cally uncorrelated with one another probabilities each other and assumed equilibrium Hardy-Weinberg requires).11 supported by empirical must be evidence. Committee, assuming The NRC the ab- possibility of error must be ruled out. substructure, has de- population sence application multiplication Otherwise scribed the calculation as follows: simply magnify beyond will reason basic error. Suppose example, that defen [a aVa2, bVb2, genotype cVc1. dant] In the only apply- instant case are not we sample appropriate If a random of the ing objective frequencies assumed to obvi- [i.e., population the fixed shows that ously probabilities but, subjective bin] in the bl, al, a2, frequencies of b2 and cl refinement, absence more apply- we are 0.1, 0.2, 0.3, approximately 0.1 and ing obviously subjective frequencies to sub- 0.2, respectively, population then fre probabilities. jective Thus in esti analysis employed quency genotype would be product this this [2(0.1)(0.2) [2(0.3)(0.1) multiplication process mated to be would be reliable ] ] = 10,-4 0.000096, only (0.2)(0.2) if 1 in the conditions of the “Har- or about so-called [ ] dy-Weinberg” my rule met. were While 17.[12] al., People Barney, eight Cal.App.4th

10. v. rare will is deter et identified alleles occur (1st Dist.1992). eight multiplication Cal.Rptr.2d individu mined e.g., probabilities, al 1/b x 1/c 1/d 1/a X x Hardy-Weinberg One re- describes 1/g easy It is to see 1/e X 1/h. X 1/f X X thusly: quirements probability that if of each of these alleles reliable, For test to be condi- two basic probability occurring 1 in of all is but 1.) be met: tions must the alleles that are eight appearing in the is 1 same individual linkage tested must not result of If two of 10 or 1 in a hundred million. 2.) disequilibrium; popula- data base only 1 of a indi the alleles occur viduals, hundred approach Hardy-Weinberg tion be in or must resulting eight probability of all equilibrium. matching one in ten billion. alleles becomes by seeking The first condition is met alleles just powerful easy identi It is to see how from different chromosomes. increases This impact fication is and what a tremendous tool segments measured jury. it could on a have randomly, being occurred rather than Pennell, (Del.Su 584 A.2d State product parent’s genetic of one contribution. 989). per.1 Hardy-Weinberg equilibrium assumes Report, 78-79. After one does the initial 12.NRC frequencies re- allele in the will multiplication (accounting for the fact that generation generation main constant from ways), profiles be obtained in two different can long mating so as there random equation would be: course, population. Of small deviations 96/1,000,000 = 1/X Hardy-Weinberg equilibrium in human exist reasons, for a includ- communities number of = 1,000,000 1,000,000 96X not, mating the fact that human =X sense, truest random. population Hardy-Weinberg If the is in 10,416,666 = equilibrium, probability that a DNA with X method, popula- VI. up, under To sum this typing frequencies quoted for DNA tion among population geneticists The debate counting on not on are based actual multiplication underlying use of principles models based on the theoretical currently by the Council’s rule is described genetics. matching al- population Each of group essentially as One study follows. provide statistically inde- lele is assumed to Hartl) (Lewontin that census and maintains pendent frequencies evidence American Cau- categories as North —such multiplied togeth- individual alleles are Blacks, Asians, casians, Hispanics, and Na- the com- frequency er to calculate the homogeneous Americans—are not tive plete pattern. only now that Yet it is admixture group that each is an groups but to being are undertaken population studies al- subgroups with different somewhat assumptions of the absence validate the have frequencies. frequencies lele Allele tend homogenized people substructure. not been because Subpopu- subgroups. mate within their to have had in difficulty that courts predicted differentiation cannot be lation up applying product this rule is summed through di- must be assessed advance but as follows: Committee in ethnic frequencies of allele rect studies interpretation typ- Statistical Furthermore, group doubts groups. probably yielded ing evidence can be presence of substructure for the greatest confusion and concern application of statistical detected to fo- application of DNA courts populations. mixed large to data from tests accept- Some courts have rensic science. geneticists group population Another multiplication rule based on ed Kidd), recognizing (Chakraborty and while others grounds independence, of allelic population possibility likelihood to used various ad hoc corrections have substructure, that evidence concludes nonindependence, and still account for gene multiplication of indicates that date rejected probabilities alto- others have lead to frequencies across loci does ruled that it is gether. Some courts have calculation major inaccuracies in the indepen- unnecessary even test allelic for the frequency, least not genotype dence, others ruled that allelic have polymorphic examined. specific loci independence cannot assumed without further, exhibits gather I surprising, proof. The confusion is not disagree- us that there pleadings before exper- little inasmuch as courts have as to population geneticists ments between genetics statistics. tise are essential principles fundamental Report, 89.) (NRC Thus validity product rule. hear- instant at time of the point In the Hartl to theoretical Lewontin and FBI, using “ran- Kennedy, misunderstandings the term before about Mr. different system, mating” calculated which has two its fixed bin had dom the term meanings. as In the sense four-locus estimate narrow Porter’s other marker groups After to blood applies in 40 million. the issuance on direct effect genes that do have a Academy National of Sciences preliminary In a sense person’s appearance. broader report, this estimate was recalculated 270,000. mating” means that individuals 1 in not been told “random being We have regard “en- their mates as to the calculation.13 choose without the details religion, ethnicity, geogra- colleagues reputable dogamy” i.e., scien- my view — Therefore, figure agree phy, minimal etc. the Lewontin/Hartl “would such tists “Hispanics” the census term is mis- possibility line of view as the bottom match,” leading “biological prompts me to revisit since embraces coincidental Rican, Mexican, hodgepodge” the re- Puerto controversy which necessitated Guatemalan, Cuban, other an- place. Spanish first port in the Service, figure appearing proffered be- Defender indicated that this without The Public argument, explanation oral calculated. this court as amicus in how it was fore expected differ- approached FBI probabilities cestries. Reliable perspective. use a “geopolitical” “Blacks” cannot be estimated without from ences population is at least had of a reference that Lewontin and Hartl Suggesting that family geographically genetic relevant14 and takes dif- that are more intimated there history into Ameri- account. “Caucasian” groups (e.g., Irish between ethnic ferences genetically cans are diverse derived Swiss) groups than between racial and to European subgroups migrated that Caucasian) (Black Budowle Staf- and generations only America recent North intuitively “It is geneticists ford wrote: to their eth- and that have tended maintain persons of the race same obvious marriage. religious separateness nic and persons traits than do share more common (1) consequence As a under rationale NRC Report, of different races.” refer- single homogeneous there existed no ef- controversy also about the There is group all could be ence to which individuals exis- passing generations fect of estimating, probabilities of a referred for tence of substructures.15 (2) type, random match of DNA multiplication calculating probabili- rule for Committee, fray not- the NRC Into this multiple num- ties across VNTR very [variable Hardy-Weinberg test is ing that the ap- repeats] loci ber tandem would substructure, testing weak for states: ply- races Differences between cannot Further exhibits show that another meaningful upper provide used (Budowle group geneticists and Staf- within races. bound on the variation ford), Hartl, responding to Lewontin and on dif- Contrary to common belief based empirical countered that shows that data form, hair stud- ference in skin color and effect subgroups within genetic diversity ies have shown that United States on final statistical great- subgroups within races is between element small and that the FBI’s fixed- variation genetic er than the between intentionally approach designed bin races.... subgroups, minimize differences between summary, population differentiation argued geographic both It ancestral. through studies must be assessed direct a comparison frequency of fixed bin groups. frequencies allele ethnic data for from the United Caucasians Relatively have been few such studies States, France, Canada, Israel, Switzerland far, underway. published so but some and Australia demonstrates that in most Clearly, such studies are desir- additional cases there are few or no differences (NRC 82.) Report, able. frequencies and the dif- bin most extreme report express- further ferences than The Committee’s are no more two to threefold. in fre- discrepancies consisting concern about the It attacked Lewontin data es can result from “as- Hispanics, quency As estimates that extremes and outliers. who, University born samples professor at the of Iowa 14. The blood Black database comfort in suburban underlying white middle-class into Washington, Mr. Porter's initial esti- D.C., Carolina, that he was Black discovered mate were collected in South Florida (and years describes the chaos at 10 old and Texas. thereafter). sur- comes as no [This followed expert pointed FBI out of this The that use generations prise older slave states operated produce odds in Black database only of communities and who are not aware favor of I am not that this is Mr. Porter. certain octoroons, (including where towns "coloreds” kind action an accused of affirmative many quadroons, white mulattoes complexions, See, would embrace with much enthusiasm. eyes) perpetu- blue hair and blond e.g., note infra. sub-grouping, also but who remember ated migrating family disappearance members notes, correctly majority 15. As the it is not "passing” (thus coining phrases of dispute scien- the courts to resolve a between over”). February "Ebony,” “crossing following only tists. I to echo the mention Whitaker, Negro.”] Tell a Charles “How to emphasis upon Committee’s direct studies. Boy Dis- Story "White' Who an Indiana True Black, "Ebony" magazine issue of that He Oct. October 1992 covered Was Ebony, poignant story distinguished tells the law typing (NCFDT) Forensic DNA sumptions” population structure as tee on about “matches,” independent law counting noting: mission would of opposed to whose multiplica- In applying enforcement. controversy has arisen con- Substantial rule, highest frequency allele tion cerning estimating the the methods for any populations found in 5% population frequencies specific DNA (whichever This larger) should be used. is Questions patterns. have typing been “ceiling principle.” See NRC is the adequacy popula- raised of the Re- about port, 93. frequency tion on which esti- databases and the role of mates are based about short”) (“which should be the interval origin frequency esti- racial and ethnic being col- samples are while the reference simple mation. methods on Some based lected, limit of upper confidence 95% counting frequencies, produce modest allele cal- frequency each should be assump- whereas methods based on some separate States “racial” culated for United population pro- can tions about structure of these values groups highest (NRC frequencies. duce extreme Re- larger) (whichever should be is the 10% port, 74-75.) multiplication rule. applying used in Noting investigation frequen- in one openly Population databanks should be to ranged from 1 in 500 1 in cy estimates parties inspection by available for scientific billion, report signifi- a most makes mea- laboratory rates should be error cant observation: proficiency tests. appropriate sured with question discrepancy only is Id. (which weight to accord the evidence quibble over We need not whether traditionally jury), is left to a but bears “conservative modification Committee’s the alterna- validity on scientific an inter- ceiling principle,” proposed for rendering used esti- tive methods for meet the admissibili- period, val time would (which is a weight mates thresh- general acceptance in view ty standard (NRC admissibility). question old intensity depth the scientific added)). (emphasis

Report, Admittedly those of us controversy. personal concern might law have some VII. acceptable to which risk of error about an subject an Committee, willing accused.16 we are mindful of controver- However, is we the issue here whether sy concerning population genetics, propos- Porter, decision methodology, assuming the should rush vacate es its own one drafted, ef- momentous carefully It after existence of substructure. fort,17 trial who conducted samples judge that blood be ob- recommends rationale hearing which in persons Frye decision randomly from 100 selected tained —a that of a relatively homogeneous has voiced same concerns in each of 15-20 scientists. We distinguished lympho- DNA in committee populations, and that the issuing a certainly from preserved should refrain cytes immortalized and admissibility of stamp approval for determination of al- broad reference standard in a particularly frequencies in novel scientific evidence lele different laboratories. testimony available samples study and their case because of The collection of where to the search such is crucial by a National Commit- evidence should be overseen put thusly: Professor Tribe has this Harv.L.Rev. be, argued Now it well as I have else- out, Kennedy majority points 17. As the where, something intrinsically there is eight testimony twenty days, sat for heard condemning as a a man crimi- immoral about exhibits, witnesses, oneself, expert over 110 telling admitted "I believe that there nal while 1,300 twenty pages of briefs. I want is of one defen- over a chance received innocent, sacrificing but a risk of all go dant 1/20 record with a commendation erroneously willing one him I am run counsel. my public’s own— the interest of safety.” —and argued that we that has genius restraint is advisable truth.18 Such yet ready. are not regulation admonition that view of NRC’s critical, powerful potential of such respectfully dissent. I adequacy used to ac- method samples given case quire analyze in a admissibility adjudi- on and should be

bears (Indeed, by on a case case basis.19

cated interpreted being

Frye could be anti- adjudication.) case

thetical to case Finally, apart from the considerations FROST, Appellant, David C. Frye, viewpoint, from an administrative v. justice system ignore our criminal cannot widespread typing of DNA cost of use STATES, Appellee. UNITED of millions of (expected to run into tens ROBINSON, Appellant, Gavin P. year). The that DNA evi- dollars a fact cases might obviate trials in some dence v. fear, may cause for or de- reassurance STATES, Appellee. UNITED pending upon point one’s of view.20 91-CM-147, 91-CM-192. Nos. Man’s “search for truth” is never-end- Appeals. Court District of Columbia here, ing odyssey. how- The ultimate issue ever, whether should be is not that search Argued Nov. 1992. to employed determine whether Mr. Porter 30, 1992. Decided Dec. guilty or innocent of a sexual on assault witness, complaining rather whether methodology hastily developed two-part controversy which reeks of scientific summarily respect, employed

critical can be system

to justice, undermine a of individual

carefully painfully crafted over judge, I defer to trial to

centuries.21 legal precedent Frye, and to the reshape university organizers can Presumably testimony complainant until its 18. program that NIH does not make clear case to in this will need corroboration. genetic explanation for crime. advocate a Crime, Duke, Controversy Lynne Over He- — Flares —, - Vandebogart, State N.H. 19. See A4; Aug. redity, 19, 1992, Washington —, (N.H.1992) (holding Post, A.2d Freedom, Francis, Genes, Crime and Samuel The admitting population that trial court erred FI, Sept. F4. 1992, The Washington Times, frequency estimates used FBI since such press broached has African-American oriented techniques generally accepted are not statistical subject "eugenics.” See Alexander B. geneticists among population because the de Jones, Sept. Washington Observer, New The substructure). regarding population bate Comments, Tony 1992, Brown’s Wash- 5; Sept. 26, 1992, ington 2. Observer, New Committee has serious concern voiced legislation privacy rights which state has about expressed his concern Tribe has 21.Professor to address. It that DNA data banks notes the Committee “[t]o (subsequently cor- “misrepresentation”3 match, provid- patterns without two [DNA] recommendation, rected) “to stated its any scientifically valid estimate ... confusion,” potential that the use avoid such frequency matches analysis purposes for forensic chance, meaningless. might occur continued, and that no moratorium approaches The Committee recommends improve- changes declared while that are in- making sound estimates being suggested report ments were group dependent the race or ethnic constitut- made.4 I read this foreword as added). subject.” (emphasis at 9 Id. previ- that have ing guidance to the courts courts, I also read juris- ously admitted DNA evidence. report suggests statutes, re- report its recommendations for judicial- dictions without relevant confirming technology ly appropriateness of the theo- form as notice the stage discovery;5 my view typing “by using of DNA still retical basis Kennedy’s ruling credence to report, reports, similar and case law” and adds calculating the that the FBI’s method for adds that new methods used “[a]s coincidental match was “probability” to assure themselves of courts will have reliable, and accepted technically validity.” yet their It re- not NRC Report, of the trial court’s views the state and federal case law that reinforces wisdom exercising judicial restraint accepted rejected admissibility caution in suggest I including essential studies. technology, opinion of such the absence of we, my colleagues describe Judge Kennedy in the instant and that what

Notes

failed notes thusly: ability point just to to individuals have pseudomathe- Although the mathematical including entire relatives who but to families— society which a embraces matical devices Report, 87) (NRC no crime have committed adjudication may systems for rationalize its greater there likelihood that information quite comprehensible to a student minority-group members such Blacks culture, society’s devices those customs Hispanics stored accessed. NRC Re- will be and, operate nonetheless distort — port, instances, destroy important values some — jurisdiction report- society express or daily press has which that means through legal pursue trials. the conduct of ed that National Institutes Health funding suspended for a at a local at 1330. conference Harv.L.Rev.

Case Details

Case Name: United States v. Porter

Court Name: District of Columbia Court of Appeals

Date Published: Dec 22, 1992

Citation: 618 A.2d 629

Docket Number: 91-CO-1277

Court Abbreviation: D.C.