*1 699 A.2d 596 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW v. HARVEY, NATHANIEL DEFENDANT-APPELLANT. Argued April July 30, 1996—Decided 1997.

137 Caruso, Stephen Deputies A. Assistant Michael B. Jones and (Susan Defender, L. argued appellant the cause for Reis Public Defender, ner, attorney). Public Hulett, General, Attorney argued the cause

Nancy Deputy A (Deborah Poritz, Attorney T. of New respondent for General Jersey, attorney). opinion of the Court was delivered

The POLLOCK, J.

Defendant, judgment Harvey, appeals directly from a Nathaniel purposeful-or-knowing of conviction and sentence of death for the Schnaps. jury originally murder of Irene A convicted defendant Schnaps’s him to death in 1986. murder and sentenced October in that conviction of errors This Court reversed because admission of defendant’s confession and the failure of the trial give charge.” Harvey, 121 court to a “Gerald State v. N.J. (1990) denied, I), (Harvey A cert. 499 111 .2d 483 U.S. (1991). charge” phrase 113 L.Ed.2d 268 “Gerald S.Ct. charge distinguishes refers to a murder when the defendant only to intended to kill from murder when the defendant intended Gerald, bodily injury that resulted in death. State v. cause serious (1988). A.2d error occurred 113 N.J. Neither trial. second confession,

In the absence of defendant’s the State relied sub- stantially that defendant was on DNA evidence establish Again, jury imposed Sehnaps’s killer. convicted defendant appeal, numerous penalty. death On this defendant raises including challenges of the DNA evidence points, to the admission jury charge. of all of defendant’s and to the After careful review arguments, we affirm his conviction and death sentence.

- -I Discovery Body and the Crime Scene A. ground-floor apart- Schnaps, age thirty-seven, alone in a lived Plainsboro, Jersey. complex in at the Hunter’s Glen New ment *18 17, 1985, appear at work on June a concerned After she failed to through an unlocked apartment to her and entered eoworker went body, immediately doorway. discovering Schnaps’s lifeless he On for assistance. called entry.

Investigating police signs no of forced The detected bedroom, however, struggle. Blood stains was a scene of obvious throughout Sehnaps’s naked carpet on the room. were head and body lay face-up on the floor. She had sustained severe wounds, Despite no facial wounds. the extensive head bloodstains present Sehnaps’s on chest and stomach. were body matting to the and the The of several small hairs victim’s suggested had at- of blood on her torso that someone absence body tempted wipe body carpeting around the clean. The Schnaps’s back was covered with blood. was wet from water. bloody pillowcase sneaker-print A a with a chevron white bore pattern Although bedding appeared letters “PON.” clean, mattress, underlying spring, blood stained the box bed, protruded cardboard box that from under the and a towel. box, empty The bedroom also included an Seiko-LaSalle watch box, empty jewelry In empty Olympus an camera and an box. bathroom, Schnaps’s poeketbook. investigators found The pocketbook any money. open and did not contain Autopsy

B. The 18, 1985, Shuster, County On June Dr. Marvin the Middlesex examiner, autopsy. medical conducted an He determined that Schnaps approximately had sustained fifteen blows to the head. wound, wide, largest long inch The six inches and one extended top general, to the of her head. from the front of her forehead curving curving or the skull wounds were either linear. The blows, by likely hammer and the linear wounds were caused iron, could been caused an item akin to a tire wounds have two-by-four, or a or axe. fractured dull hatchet Some blows injury Schnaps’s and caused to the brain. Blows had skull direct sides, from the right and left some from both been delivered front, from behind. but most appeared on sides of neck.

Triangular pressure marks both out, jaw was knocked and her of the victim’s teeth were Some cheek, neck, jaw, and forehead right sides of the broken. bruised, and she was cut behind one ear. were wound, any Dr. Shuster particular to attribute death Unable Schnaps. the blows had killed that the combination of concluded a matter of minutes. Sehnaps profusely had and died within bled *19 Harvey Interrogation Nathaniel Apprehension The C. 1. October Throughout and autumn of West Windsor the summer burglaries a of unsolved police perpetrator for the series looked eyewitness descriptions, they and sexual assaults. Based on male, perpetrator stocky a black under five- that the believed tall, usually travelled on foot or three-and-a-half inches who feet perpetrator of those by bicycle. police also believed that the Schnaps’s murder. Defen- might responsible for other crimes be description. physical fit the dant 28, 1985, investigating burglaries ar- police three

On October standing bicycle at sighted with his rested defendant after he was burglary soybean in One of the edge of a field West Windsor. subsequent “show-up.” identified defendant a victims police During questioning by on October West Windsor burglaries in committing a number of confessed to West defendant Windsor, agreed to assault. Defendant also as well as sexual point of his accompany police a car tour to out the locations on crimes.

2. October accompanied following morning, defendant At 10:00 a.m. on the p.m., At 1:15 detectives on a car tour of West Windsor. two Jamesburg of his car and his defendant consented to search an sexual assault. apartment for evidence related to unrelated Although gave apartment his father’s defendant as his address Jamesburg, estranged he lived with his wife West Windsor. Apparently, defendant feared that his wife would lose her welfare if he revealed that he lived with her. After defendant benefits form, police him signed the consent transferred to the Mercer County Detention Center. car, searching

While defendant’s the officers discovered two watches, missing including a Seiko-LaSalle like the one from They Depart- Schnaps’s apartment. notified the Plainsboro Police warrant, obtaining a ment. After search a Plainsboro officer Harvey’s Jamesburg apartment seized the watch. The search of yield any did not evidence. SO,

3. October Following arraignment Schnaps, defendant’s for the murder of investigating questioning point, officers resumed him. At one that “he [them] defendant said would tell about murder but speak spoke first wanted to to his father.” After defendant with father, police warnings. his failed to administer new Miranda thereafter, Shortly murdering Schnaps. defendant confessed to D. The First Trial 19, 1985, County grand jury

On November a Middlesex re *20 charging turned a three-count indictment defendant with the purposeful-or-knowing Schnaps, contrary murder of to N.J.S.A. (count one), robbery, contrary second-degree 2C:11-3 to N.J.S.A. (count two), second-degree burglary, contrary 2C:15-1 and to (count three). later, 21, days N.J.S.A. 2C:18-2 Two on November County Aggrava the Middlesex Prosecutor filed a Notice of 3:13-4(a) 2C:11-3c(2), ting pursuant to Rule and Factors N.J.S.A. making capital prosecution. alleged a defendant’s case The State following aggravating factors: outrageously 1. The murder was or horrible or inhuman in that it vile, wantonly aggravated

involved an to the victim battery 3c(4)(c).]

[N.J.S.A. 2C:11— escaping detection, committed for the apprehen- 2. The murder was purpose burglary committed for and or confinement sion, trial, robbery imprisonment defendant 3c(4)(f).] [N.J.S.A. 2C:11— engaged in the commis- while the defendant 3. The murder was committed committing burglary flight and or after commit, robbery sion of or an to attempt 2C:11-3c(4)(g).] [N.J.S.A. confession. Har heavily prosecution relied on defendant’s I, 415-17, jury 483. The found vey supra, N.J. at 581 A.2d murder, first-degree purposeful-or-knowing guilty of defendant murder, burglary, felony for which he robbery, second-degree and jury hearing, penalty-phase At a the same indicted. had been alleged aggravating factors and presence of all three found the of death. returned a sentence Harvey I

E. defendant’s conviction appeal, direct this Court reversed On trial court’s trial. The Court held that the remanded for a new Gerald, supra, comport with jury on murder did not instructions jury required that a must be 113 N.J. 549 A .2d which of intentional murder separately on the crimes instructed (SBI minder). Har At the time of serious-bodily-injury murder trial, murder did not render a defendant vey’s a conviction for SBI confession, Harvey claimed that the victim death-eligible. In his Relying part only once. then struck her struck him and that he confession, concluded that in his the Court on statements jury to have concluded provided a rational basis for evidence I, Harvey supra, injure Schnaps. to that defendant intended 413, A.2d 483. 121 N.J. at Harvey’s confession had been further held that

The Court Hartley, v. 103 N.J. 511 A.2d 80 procured in violation of State silence, (1986). Hartley provides that after invoking right interroga warnings before new Miranda defendant must receive that, by asking speak with The Court ruled tion can resume. I, Harvey father, right silence. Harvey had invoked his his 418-20, police Consequently, the supra, 121 N.J. 581 A.2d 483. *21 again him rights should have advised of his constitutional before resuming interrogation. police by The failure of the to abide bright-line test rendered defendant’s confession inadmissible. Id. 581A.2d 483.

F. The Interim Between Trials prospect retrying Harvey Faced with the without his confes- sion, (Cell- prosecution Diagnostics Laboratory hired Cellmark mark) to conduct DNA tests on the blood recovered from the Cellmark, crime laboratory scene. the first commercial accredited Society Directors, Laboratory the American of Crime conducts exclusively. analyzed DNA tests It a bloodstained section of Schnaps’s cardboard, spring, piece box a bloodstained and a sample Schnaps’s of both and defendant’s blood.

G. The Retrial retrial, pretrial Defendant’s from the motions to the return of sentence, 25, 1992, the death lasted from November to December 16, 1994. trial court denied a motion for a new trial on 30,1995. January

1. Pretrial Motions Following hearing, the trial court denied defendant’s motion to suppress car, evidence seized ruling from defendant’s that defen- dant had consented to the search. The defendant also moved to exclude three-day the State’s DNA Jersey evidence. After a New (Rule 104) Rule hearing, Evidence 104 the trial court denied defendant’s motion and held that the State’s DNA evidence was admissible.

2. Guilt Phase lengthy jury-selection process, After a guilt phase began on 29,1994. November

a. State’s Case scene, The State adduced including evidence about the crime fifty-two photographs physical and various items of evidence. *22 bloody discovery

Investigating officers testified to box, empty empty print, sneaker Seiko-LaSalle watch box, box, Olympus all which jewelry empty and the camera into were admitted evidence. Jersey employed by the

Philip Beesley, New a forensic scientist Police, samples on control testified that blood work done State Schnaps Schnaps’s that defendant and revealed from both the plus, genetic marker type “one one minus” for the blood was PGM, enzyme type type “1” for CA II. Defendant was and type Beesley plus, plus” for and “2-1” for CA II. “one one PGM spring found and on further that bloodstains on the box revealed plus, plus” for piece as “one one PGM of cardboard tested II. concluded that those stains were type “2-1” for CA He blood, therefore, Beesley Harvey’s Schnaps’s. consistent not with only II in African phenotype that CA of 2-1 is found also testified Americans. nature of the

Dr. Marvin Shuster testified about the wounds part by Schnaps supra cause of her death. See suffered and the Mozer, by employed a New I.B. forensic scientist Theodore Police, from Jersey that one the hairs recovered State testified Schnaps’s belong not to her. testified that this back did Mozer “Negroid” consistent with hair had characteristics were Harvey. control taken from hair Har- pairs of seized from

Mozer also examined two sneakers “Pony” vey’s apartment and the size ex-wife’sWest Windsor 1/2 Harvey wearing Aided when he was arrested. sneakers that bloody footprint left at the enlarged photographs of the six scene, “Pony” explained Harvey’s sneakers were crime Mozer Although Harvey’s impression. consistent with the sneaker mark, bloody Mozer not have could sneakers “could” left definitively they had done so. conclude evidence, the State support of admission DNA Cellmark, Cooper, a senior presented from Julie two witnesses Word, microbiologist biologist, and Dr. molecular Charlotte They generally that supervisor of forensic casework. testified samples DNA tests conducted on the blood recovered at the crime genetically comparable scene were to defendant’s DNA. Defen- genotypes genetic dant’s for the markers examined were common one-in-1,400 only African Americans.

b. Case Defendant’s testify. did Defendant

His case consisted of two witnesses. A witness from Seiko testified that it had made thousands of watches like the one seized Shaler, from the trunk of defendant’s car. Dr. Robert Director of *23 Biology Forensic for the Office of the Chief Medical for Examiner York, City of New testified that he believed that the DNA “scientifically his tests were indefensible.” In the course testimony, pointed he out in strips. the imbalances the dots on the GYPA, HBGG, He found imbalances at the and loci. Dr. GC genes Shaler testified that at the locus an GYPA individual’s could intensity. disputed cause a difference in dot He further the one- in-1,400 calculation and genetic asserted that he believed that the makeup of the blood recovered from the crime scene could be approximately fifty found in in in one to one 200 African Ameri- cans.

c. The Verdict instructions, jury In its the court charge. included a Gerald Purnell, 518, 530-34, Consistent with v. State 126 N.J. 601 A.2d (1992), charged the court also on the unindicted count of felony hours, deliberating murder. After for three and one-half jury finding guilty returned its verdict purpose defendant murder, murder, ful-or-knowing felony first-degree robbery, and second-degree burglary. Penalty

3. Phase a. State’s Case exclusively The State relied on guilt the evidence adduced at the phase support proof aggravating of three factors: the murder victim, aggravated 2C:11-3c(4)(c); involved assault of the N.J.S.A. detection, the murder escape was committed to N.J.S.A. 2C:11- 3e(4)(f); during of a committed the course and murder was burglary, robbery 2C:11-3c(4)(g). and N.J.S.A. Case

b. Defendant’s 2C:11-3c(5)(c) (h), alleged and to N.J.S.A. defendant Pursuant time of the mitigating age factors: of the defendant at the ten murder; young age he defendant traumatized when was sister; uprooted the death of his older defendant witnessed grandparents his abused his home and sent to live with who from par him; feelings his of abandonment when defendant suffered him; exposed to and to send for he was ents moved north failed grandparents; his he was violence home of domestic parents; he is a in the home of his exposed to domestic violence father; continuing relationship his loving with caring and his contributions; including relationship with his financial his children daughter; mentally mentally and his disabled disabled brother and childhood all factors which relate to defendant’s family background. Moran, criminologist in the specializing Richard

Professor crime, age if were testified that defendant correlation between death, eligible for he could not be prison rather than sentenced age group prior age time he would parole which be Therefore, likely the chances of to commit violent crime. least minute. committing be *24 another violent crime would defendant histo- about social A forensic social worker testified defendant’s father poverty. in ry. Defendant was raised His often-absent old, two-year sharecropper migrant As a a and a worker. was accident, did not injured had been in an automobile but defendant four, and his defendant was he medical treatment. When receive trying in five-year old sister were left an unheated home. While stove, on her spilled kerosene light a defendant’s sister some match, lit a to death. nightgown. defendant she burned When leaving defen- parents Jersey, to New Defendant’s later moved During years. for grandparents in care of seven his dant his childhood, grandfather both and defendant abused his father. family loving a members testified that defendant was

Various father, developmentally-dis- earing also comforted his and who family jury not to sentence brother. Defendant’s asked abled defendant to death.

c. The Verdict hours, deliberating jury returned After for two and one-half for unanimous verdict that defendant had committed the murder 2C:11-3c(4)(f), N.J.S.A. purpose avoiding apprehension, and N.J.S.A. robbery burglary, 2C:11-3c(4)(g). in the course of a 2C:11-3c(4)(c), factor N.J.S.A. aggravating It did not find aggravated jury murder involved assault to the victim. The aggravating outweighed all further found that the factors mitigating aggravating factor alone out factors and that each weighed mitigating The trial court sentenced all of the factors. to death. defendant

Later, persistent of- the trial court sentenced defendant as robbery non-capital first-degree on the counts of fender second-degree burglary. Accordingly, defendant received a sen- year twenty-five parole degree with a on the first tence life bar robbery consecutively conviction to run sen- defendant’s death conviction, burglary capital tence for murder. On the defendant years prison in was sentenced to a concurrent term of five with a year parole two-and-one-half bar. Those sentences were made prison previously imposed consecutive to terms on defendant for Thus, sentence, aggregate unrelated crimes. defendant’s irre- spective penalty, plus sixty-five years of the death is life with a fifty-seven-and-one-half year parole disqualifier.

- - II We first consider defendant’s contention that the trial court jury it committed reversible error when failed to instruct the Mejia, v. State accordance with this Court’s later decision (1995). N.J. 662A.2d 308

- A- Mejia argument begins Evaluation of defendant’s with Gerald, 40, Gerald, In supra, 113 549 A.2d 792. this Court N.J. only constitutional law that those held as a matter state eligible penalty. kill for the death murderers who intended to were only bodily injury who intended to inflict serious were Those 3(a)(1) (2), if death-eligible under or even their N.J.S.A. 2C:11 — 69-70, in their victim’s death. Id. at 549 A.2d 792. actions resulted Subsequent statutory amendments have abro constitutional by subjecting penalty to death murder gated the Gerald rule only bodily injury. ers who intended to cause serious N.J. Const. ¶ 1993). I, (1992); 1993, 5, (signed May At L. c. 111 art. murder, however, only Sehnaps’s time of those who murdered with Thus, death-eligible. kill rule the intent to were Gerald present applies to the case. Gerald, jury’s

Under determination whether defendant merely kill inflict killed with the intent to or with the intent to bodily injury, linchpin capital-punishment serious became eligibility. produced provided If at trial even a the evidence jury rational for a to a defendant of SBI murder basis convict murder, compelled trial court was rather than intentional [either], which, findings jury specify if of those “instruct the 209, 194, Coyle, for conviction.” v. 119 N.J. forms the basis State (1990). Gerald, jury’s key 574 A.2d 951 Under role became to kill or to inflict SBI. determine whether defendant’s intent was (1991). Moore, 420, 484, v. 122N.J. 585 A.2d 864 State Mejia, supra, 141 N.J. at 662 A.2d this Court by stating jury that a need not be unanimous on clarified Gerald injure seriously. The intended to kill or to whether the defendant murder, but a requirement intent-to-kill is not an element death-penalty phase of the trial. Id. at “triggering device” for the Thus, unanimity required making 662 A.2d 308. is not “unanimity (noting A.2d 308 determination. Id. at Gerald defendant”). requirement to verdicts adverse to the extends *26 148 jury guilty purposeful-or-knowing

A can a verdict for return valid agree intentionally. murder even if it cannot that defendant killed verdict, however, support imposition of Such a will not 486, penalty. Mejia, In death Id. at 662 A.2d 308. the record provided jury to find that “a rational basis for a defendant only bodily injury.” Id. at 662 intended to cause serious A.2d jury 308. The trial court’s failure to instruct about the possibility returning a non-unanimous verdict on the defen plain dant’s intent thus constituted error. Harris, 525, 549, (1995), v. 141 662 A.2d 333 State N.J.

however, give Mejia we held that a failure to a non-unanimous charge could be considered harmless when the evidence of intent overwhelming to kill was and no rational basis existed for conclud ing only bodily that defendant had intended inflict serious injury.

Although defendant’s case was tried seven months before Harris, Mejia requested issuance of defense counsel us, charge argues on a non-unanimous verdict. Before defendant charge that the absence of a non-unanimous verdict coerced the jury returning capital into a verdict of murder. The initial then, inquiry, provided is whether the evidence a rational basis to bodily, find that defendant intended to inflict serious and not to kill.

- -B charge Gerald/Mejia Failure to in accordance with re quires the reversal of a death sentence if the record below “minimally adequate provide contains evidence that is a rational jury basis for the to hold a reasonable doubt that the defendant Mejia, supra, intended to 141 cause death.” N.J. at 662A.2d 308; 547, 561, Pennington, see also State v. 119 N.J. 575 A.2d 816 (1990) (characterizing rational-basis standard as a “low thresh old”); Pitts, 580, 615, (1989) State v. 116 N.J. 562 A.2d 1320 (same). Accordingly, may though a rational basis exist even reject jury likely serious-bodily-injury would the defendant’s theo 308; 662 A.2d see State v. ry. Mejia, supra, N.J. at (1991) (“The Dixon, 223, 254, error was not 593 A.2d 266 N.J. in this case that could have harmless there was evidence because suggest do not that such a an ... verdict. We sustained SBI jury likely, merely that if the returned but verdict it.”). verdict, reject the “mini could not Satisfaction of the court standard, however, requires more mally adequate/rational basis” Mejia, supra, 141 N.J. at of the evidence.” than a mere “scintilla Crisantos, 265, 278, 308; 508 A.2d 662 A.2d State v. N.J. *27 (1986). 167 in defendants’ have found harmless error eases where

We jury wantonly could have actions have been “so brutal only intended to cause death.” concluded the defendant Harris, 488, 308; see, e.g., 662 A.2d Mejia, supra, N.J. at (victim 550, and supra, 141 at 662 A.2d 333 was handcuffed N.J. head); him in State lying ground defendant shot back on when III) (defendant (1992) 557, 579, (Bey Bey, v. 129 N.J. 610A.2d 814 chest), cert. stomped force to crush her on victim with sufficient (1995); 1131, denied, 1164, 115 130 L.Ed.2d 1093 513 U.S. S.Ct. (1991) 1, 18, (Biegen 594 A.2d 172 Biegenwald, v. 126 N.J. State IV) (defendant head); gunshots into victim’s State fired four wald (1990) (defen 523, 558-60, McDougald, 577 A.2d 419 v. 120 N.J. throats, bat, bludgeoned one with baseball dant slashed victims’ killings); expressed kill and after State and intent to both before (1990) 378, 412-14, (Hightower Hightower, 120 577 A.2d 99 v. N.J. (defendant chest, neck, head, I) range in shot victim at close Rose, 61, freezer); dragged into State v. N.J. and then victim (Rose II) (defendant (1990) 63-64, fired twelve- 576 A.2d 235 stomach); DiFris shotgun point-blank into victim’s State v. gauge I) (defendant (1990) (DiFrisco co, shot 571 A.2d 914 N.J. kill), in to cert. four times head and admitted intention victim — (1996); denied, -, 949, 133 L.Ed.2d 873 116 S.Ct. U.S. (defendant Pitts, 614-20, threat supra, 116 at 562 A.2d 1320 N.J. murders, twenty-five days kill inflicted ened to victims two before knife, throat thirty cut one victim’s stab wounds with combat death); twice, to verify v. pulse State paused to take victim’s (1989) (defendant Hunt, 330, 374-77, 558 A.2d 1259 115 N.J. twenty- immediately stabbing victim prior kill stated intent times). four

- -C brutally struck her fifteen Schnaps murdered. Her killer instrument. He struck her with times in the head with a blunt in frequency to fracture her skull several sufficient force and teeth, jaw. further and break her He places, knock out her bruising. pressure neck to cause severe applied sufficient to her I, Harvey supra, wrote Reviewing that medical evidence we jury finding repeated support can of intentional that “such blows 121 N.J. at 581 A.2d 483. murder.” Relying substantially on the assertions in defendant’s confes sion, however, required we concluded that the evidence as whole provid that conclusion because “the record reversal. We reached jury intended to [defendant] ed a rational basis for the to find Id. at bodily injury.” 581 A.2d 483 cause serious omitted). (internal Contrary quotations to the dissent’s asser tions, Harvey’s “pertinent all of the facts” contained confession the retrial. Post jury in 699 A.2d at were not before the jury confession that he had 686. Not before the was defendant’s *28 only response being punched in in struck the victim once to I, 412, Harvey supra, 121 N.J. at 581 A.2d 483. That nose. juror a in trial provided confession a rational basis for the first only injure Harvey his victim and have concluded that intended Harvey’s kill confession is a critical not her. The absence Harvey I and that present in in distinction between the record case.

- -D determining In for a whether a rational basis existed confined to the evidence in the record. See Gerald charge, we are III, (“[W]e 581, Bey supra, 129 N.J. 610 A.2d 814 examine scrupulously the that was adduced at trial to see whether evidence jury finding had a rational basis for that the defendant could Dixon, bodily injury.”); supra, have intended serious 253, (noting appellate jury N.J. at 593 A.2d 266 role is to ask if question death-eligibility). may answered on We consider brief, confession, in In evidence the first trial. defendant’s which second, in was admitted the first trial but excluded from the is not part of the record. confession, provide

Absent the the evidence does not a rational supposition basis for the that defendant struck his victim to ward off attempts distinguish Sehnaps’s her attack. The dissent murder from related cases where we have found harmless trial provide non-unanimity courts’ failure to According instruction. dissent, repeated bludgeoning by to the to the head hammer-like instrument, defendant, by gun such as the one used “is not like a range person; fired at close into a the victim’s death is not so I, (citing Hightower supra, assured.” Post at 699 A.2d at 687 412-14, (finding 120 N.J. at 577 A.2d 99 that defendant shot victim chest, neck, handgun range with a .32-caliber from close in the head)). that, Incomprehensibly, the dissent also concludes cases, unlike other “there is no evidence that defendant took steps Schnaps’s further to assure Ms. death.” Post at I, (citing Hightower supra, A.2d at 687 120 N.J. at 577 A.2d freezer); Pitts, (finding dragged that defendant victim into supra, (noting 116 N.J. at 562 A.2d 1320 that defendant took pulse)). disagree. inescapable victim’s We inference created objective facts, especially severity and number of wounds, Schnaps’s is that defendant intended to kill her.

- -E argument strengthened by Nor is defendant’s the trial court’s delivery charge. aof Gerald Given this Court’s reversal of the trial, charge in conviction the first the inclusion of a Gerald in the understandable, unnecessary. reversing second trial is if trial, confession, conviction the first which included defendant’s predetermine charge did not for such a in a we need retrial *29 Likewise, the inclusion of was excluded. which the confession aggravated and reckless offenses of charges on the lesser-included charge. Gerald/Mejia for a manslaughter compel the need do instructing when trial court’s caution charges reflect the Those jury.

- -F contention that he was unpersuaded also defendant’s areWe on charge. bases that contention Mejia Defendant entitled to a acknowledgment defendant entered when the State’s only burglary, not to commit apartment, he intended victim’s attempt Similarly to derive unpersuasive is defendant’s murder. pursuant argument, made N.J.S.A. support from the State’s defendant, 2C:11-3c(4)(c), committing aggravated as when kill, victim, not to but to cause inflicted some blows sault on the Schnaps intend to kill when he if defendant did not pain. Even changed that he apartment, the evidence reveals first entered her this occurred began he to assault her. Whether his mind once moment,” argues, or not is irrelevant. Post as the dissent a “brief 699A.2d at 686. Furthermore, charge required simply Gerald/Mejia is not 2C:11-3c(4)(c). Over prosecution relies on N.J.S.A. because if struck the whelming that even defendant evidence establishes merely pain, he struck the others to kill. to cause first few blows jury failing to tell the that it could trial court did not err defendant intended to a non-unanimous verdict on whether return wantonly jury brutal that the kill. Defendant’s attack was “so to cause that the defendant intended could have concluded 488, 662A.2d 308. Mejia, supra, 141 N.J. at death.” - - III trial court’s instruction on Defendant contends that jury considering non- improperly precluded the from murder alleges felony Specifically, capital murder. defendant offense jury prevented the from and the verdict sheet that the instruction *30 considering felony guilty murder until after it first had found him purposeful-or-knowing object of murder. Defense counsel did not Hence, charge to the or the verdict sheet. the issue a arises as error under Rule 2:10-2. The issue is whether the plain matter of clearly capable unjust producing error “is of an result.” We flawed, recognize charge that the was but conclude that the error capable producing was not of such a result.

- A- purposely knowingly causing Defendant was indicted “for or Schnappes bodily injury resulting [sic] death or serious in death.” second-degree robbery The indictment also included counts for addition, second-degree burglary. In the State relied on (the aggravating factor N.J.S.A. 2C:11-3c(4)(g) murder was com during robbery burglary). Although mitted the course of a and a for, charged felony defendant was neither indicted nor with mur Purnell, der, 2C:11-3a(3), court, N.J.S.A. accordance with supra, 530-34, N.J. at jury 601 A.2d instructed the on murder, however, felony felony A murder. conviction for not does eligible N.J.S.A. penalty. render defendant for the death Dixon, supra, 125 N.J. 2C:11-3c; 593 A.2d 266. Purnell, penalty this Court held that the death could not be imposed for a felony murder was committed the course of a jury permitted if the not non-capital to consider the verdict of felony Although gave felony- murder. the trial court here charge, jury murder the verdict sheet makes clear that the could felony not have considered a verdict on murder without first finding guilty purposeful-or-knowing defendant murder.

- - B jurors The court page instructed the one of the verdict provided considering sheet them with four choices when charge. They murder guilty, guilty could find defendant not murder, guilty aggravated manslaughter, guilty or of reckless felony murder as an present Page one did not

manslaughter. option. they if found defendant jurors court instructed murder, pages two and three they ignore to

guilty of were four, they were sheet, directly page to where proceed verdict Only jury if found defendant robbery consider the count. pages two and three. they proceed guilty of murder were defendant had jury to whether Page directed the determine two *31 purposely or know- Wiling by his own conduct and committed affirmatively, sheet direct- jury the verdict ingly. If the answered jury page to the Gerald page That directed ed them to three. issue, the intent to Wll or had acted with whether defendant jury injury. to consider bodily It also directed inflict serious Thus, felony unless the guilty murder. of whether defendant mur- guilty purposeful-or-knowing of jurors first found defendant felony-murder alternative. der, they would not have reached jury convicting the effect, from the verdict sheet distracted In murder, mur- purposeful-or-knowing felony but not defendant of der. case, jury given every opportuni capital

In “the must be a carrying penalty.” charge not the death ty to convict of the (quoting M. 662 A.2d 308 John Mejia, supra, 141 N.J. at Annotated, Code, 13 to Cannel, Jersey Comment New Criminal 2C:1-8(e)). Here, jury charge and the combination N.J.S.A. rendering non-capital jury away from sheet led the the verdict felony error. of murder. That was verdict however, case, charge the flaws in the the facts of this On has not plain not constitute error. Defendant verdict sheet do jury could have any plausible version which advanced convicting him felony of him of murder without also convicted any murder. Nor can we ascertain such purposeful-or-knowing sum, clearly the error was from the record. version unjust capable producing of an result.

- IV- Following hearing, permitted a Rule 104 trial court prosecution to admit into evidence the results of a DNA test kit kit, “polymarker” known as the “PM” or test. The which is by manufactured Roche Laboratories marketed the Per- Corporation, kin-Elmer “AmpliType is sold under the trade name polymarker PM.” important tying This evidence was an link in accept defendant to the crime. We the admission into evidence polymarker testing, primarily results of which is used on small material, samples genetic such as blood stains. record, community

On this we conclude that the scientific generally accepts polymarker testing, including dot-intensity anal- ysis. Generally speaking, dot-intensity analysis ais means of sources, identifying single sample from two such as a blood stain people. may that contains the samples blood two Such be present at the of a scene violent crime. experts genetic State’s identified the markers for the victim perpetrator. Through

and the polymarker testing they deter- box-spring sample, mined which contained the victim’s blood, genetic also contained blood with the same markers as experts geno- defendant’s blood. The concluded that defendant’s *32 type genetic one-in-1,400 by only for the markers was shared African Americans. We hold that the trial court did not err in admitting testimony experts the of the of State’s about the results weight jury. the DNA tests. The of that evidence was for the testing evolving general acceptance DNA is an science. The or rejection may change of a test over time. Even a test that is moreover, accepted generally, may generally attract critics. One accepted fragment length polymor- DNA test involves restriction (RFLP) phism analysis. sample Because the blood in this case small, experts analysis. was so the could RFLP State’s not use Instead, they Polymerase used tests based on a Chain Reaction (PCR): (PM) (DQ DQ Alpha) polymarker the HLA ALPHA and tests. explanation The explanation of DNA. a basic begin with

We methods. scientific terms and describes necessarily uses technical to the extent neces- concepts discuss the basic purpose is to Our to admit trial court’s decision comprehension of the sary for evidence. DNA objections raised discussion, review we shall of our

In the course DNA to the admission the dissent by defendant and rejected by arguments repeats Generally, the defense evidence. however, objections dissent, raises several trial court. The appeal. Both at trial or on this either raised the defense objective precluding of the dissent share defense and murdered that defendant proving of DNA evidence admission to the conclusion scrutiny of record leads Schnaps. Irene Our admitting the DNA evidence. did not err in that the trial court jury. a matter for weight of the evidence was - A- (DNA) Deoxyribonucleic Acid 1. (DNA) genetic materials a molecule

Deoxyribonucleic acid of every person, each spiral or ladder. shaped like a double-helix Thus, person’s DNA. copy of a nucleus contains cell with body. human blueprint for the serves as a DNA composed of two ladder are of the DNA helix or The sides Rungs steps phosphates. or comprised sugars and chains rungs pairs ladder. The consist two sides of the connect the “nucleotides,” four which consist of or molecules called “bases” (T). (G), (C), (A), guanine thymine cytosine types: adenine specific order bond separate from DNA strands Nucleotides DNA ladder. C the sides of the rungs that connect to form Thus, if G, example, for A with T. only with bonds bonds CGAT, corresponding are on one strand the nucleotides will be GCTA. on the attached strand nucleotides comprises along the DNA molecule pairs of the base The order approximately Human DNA contains genetic code. an individual’s *33 pairs, “genome.” three to four billion base known as the These pairs govern production bodily proteins. base gene A sequence responsi- is a nucleotides on a DNA strand producing protein. sequence for particular ble The vary. possible nucleotides can The or sequences variations are Thus, called “alleles.” an simply gene. allele is a version of a gene’s position A aon chromosome is locus. its different individuals, genes may “polymorphic,” meaning they may be take different contain sequences pairs. forms or different of base polymorphic genes, vary another, The which person from one provide the basis for DNA identification. Most DNA has no function, important known but even non-functional remains DNA analysis. in forensic mitosis, division,

During copied. or cell each chromosome is paired separate, dividing nucleotides the chromosome’s DNA separate Free-floating molecule into two strands. nucleotides exposed separated attach nucleotides of the strands in G-C, Thus, A-T accordance with the rule. strand each reconsti- divides, tutes identical DNA molecules. When the cell these two newly-created “daughter” identical enter chromosomes cells. genetic composition original Each new cell has the identical as the cell. composition.

All cells same contain the chromosomal No two individuals, twins, except identical have the same nucleotide se- quences throughout DNA. testing their DNA conducted on cells blood, skin, semen, parts body, from various of the same whether saliva, case, yield or hair the same will results. As this DNA analysis identify material, can help genetic donors of such as blood. (RFLP) Length

2. Restriction Fragment Polymorphism, present, widely At accepted test is RFLP most DNA See, (Colo. analysis. e.g., People, v. Fishback 851 P.2d 1993) (holding dispute as to that “no serious exists whether the

158 analysis generally accepted”); are in RFLP techniques involved (1994) 20, 457, Moore, (concluding Mont. 885 P.2d 468 State v. 268 technology is gener RFLP theory underlying DNA and “the widely is ally [] attack and such evidence open serious not jurisdictions”); and in state federal courts admitted various (1995) Streich, (noting that 163 658 A.2d 48 State v. Vt. of any under standard admis any find recent decision “we cannot on” sibility to admit the DNA match result based which refuses Marcus, Recently, Appel v. technology). State the RFLP community generally recognized that the scientific late Division (1996). A.2d 221 analysis. N.J.Super. accepts RFLP stated, testing by RFLP method is Judge As Skillman “DNA sufficiently its generally accepted and is reliable to warrant admis A.2d RFLP Id. 221. sion in criminal cases.” description analysis ease. of employed in this A brief the DNA however, background RFLP, may useful information. be as regions as non-functional of DNA known RFLP focuses on (VNTRs). repeats regions, In these tandem variable-number 10,000 nucleotides, pairs of a typically range from 500 to which thirty-five pairs of fifteen to base is sequence approximately core along many consecutively chromosome. The repeated times given repeats among of individuals. At a locus or number varies chromosome, sequences re- a with different numbers of site on as Because peated units known VNTR alleles. different are repeats, these alleles alleles contain different numbers VNTR Council, by lengths. National Research can be identified their (1996) (NRG Forensic DNA Evidence 14-15 The Evaluation of Report). sample sample DNA and the analysis,

In RFLP the recovered enzyme, suspect a which from the are treated with restriction on DNA helixes. It specific pattern out a nucleotide seeks VNTRs, fragments sites. Because of then the molecules at those sites, lengths resulting of the the locations these process among Through a called fragments, differ individuals. “gel electrophoresis” fragments the DNA sorted size and are split single into strands. nylon These strands bond to a mem- brane, specially where a radioactively-tagged treated and single DNA, strand of “genetic probe,” called a applied. genetic The probe targeted bonds with a sequence. VNTR a, nylon placed membrane is then piece contact with of X- ray radioactivity film. The probes film, exposes produc- ing bands, pattern like the bar-code on a in supermar- box ket, where This probes have attached to VNTRs. bar-code image is called an “autoradiograph” or “autorad.”

Fragments from different donors contain different numbers of units, repeat with a corresponding lengths variation in the fragments. Typically, probes radioactive days need or even weeks expose to the film. Generally Id. at 18. speaking, RFLP testing is time-consuming may require complete months for a analy- sis. Ibid.

Comparison of the location of the bands reveals whether the targeted subject’s VNTR in the DNA matches the DNA from the genetic recovered analysis material. That can high lead with a degree certainty of to a correlation samples. between the DNA

The next step analysis involves population statistics, of which reveals the likelihood of a random samples. match between the Using single-locus probes, probability finding the of a random match between unrelated individuals on all bands of a DNA fingerprint is less than one in ten Using million. one multi-locus probe, probability thirty-three about one in billion. Thomas Fleming, Annotation, M. “Admissibility of DNA Identification Evidence,” (1991). 84 A.L.R. 4th problem

One testing with RFLP requires is that it large quantity of high-quality genetic material. example, For it re- quires quarter-sized least a blood stain or a dime-sized semen stain. samples Unless those fresh, are relatively recovered when they degrade fragments will into too small for analysis. RFLP Id. at 320. attempted Cellmark testing RFLP in this case. The however, samples, degraded permit were too analysis. RFLP technology, involved Thus, to a newer which turned Cellmark (PCR). Polymerase Chain Reaction 3. PCR here, quality genetic material

When, quantity or as to allow RFLP is insufficient from a crime scene recovered amplify analysis, process the PCR forensic scientists have used testing. for The PCR produce an amount suitable DNA segment DNA of times. NRC process copy a millions can product, resulting genetic Report, supra, at 22-23. With the Fleming, probe” analysis. “allele-specific scientists can conduct supra, 84 A.L.R.4th at 322-23. way fragments similar to the process copies DNA

The PCR during Through heating DNA replicates mitosis. DNA itself cycler, separates the helix into sample process in a thermal segments DNA are separate composed strands. Primers short Then, target sequence of DNA. a basic to define the added enzyme polymerase DNA and the four containing solution sample. primed added to the DNA basic nucleotides are sepa- on exposed with the nucleotides pair added nucleotides G-C, pairing with A-T target-strands accordance rated segments original segment, rule. DNA two identical From cycler through cycle approximately its result. The thermal runs *36 times, by a factor thirty-two amplifying original sample the of two effectively amplifies only Currently, technology billion. PCR regions Accordingly, PCR cannot be used small DNA. longer testing. Report, supra, for RFLP amplify VNTRs NRC 69-70. advantages testing have over methods several

PCR-based analysis. They relatively simple processes can RFLP are time, period twenty- yield within a short often within results case, importance the particular present four Of to the hours. possible also DNA tests on small amounts of process PCR makes genetic material. tests, however, disadvantage

A is that the identi- of PCR-based Hence, scientists must genes fied have fewer alleles than VNTRs. produce examine loci to more the same amount of information about profile. the likelihood that two a individuals share Id. at 71. Also, some of the loci examined PCR-based tests are functional genes. markers, genes Unlike non-functional VNTR functional susceptible selection, are susceptibility more to natural might matching undermine their in samples. usefulness DNA testing. Ibid. Contamination also in is of concern PCR The technology is so efficient that even small contaminants can be replicated along targeted with the DNA. Ibid. used Cellmark two types of in DQ PCR-based tests defendant’s case: HLA Alpha the (PM) (DQ Alpha) polymarker tests. DQ Alpha

a. HLA Test DQ The Alpha test reveals an individual’s form of alleles for the human-leukocyte-antigen DQ Alpha gene. DQ purpose The of the Alpha idéntify genotype test is to or the the two alleles that DQ comprise Alpha gene present sample. in the DNA That compared DQ result Alpha genotype then with the match, suspect. genotypes If suspect then the cannot be possible excluded as a population donor. Genetics databases then produce frequency suspect’s with genotype appears which in population. Although eight alleles have been identified at locus, DQ Alpha commonly six are used in forensic work. Ibid. Each of distinguished by specific those six alleles can be enzyme probes. DQ Ibid. The six for Alpha alleles are denom- 1.1, 1.2, 1.3, 2, 3, DQ gene, inated as For Alpha and 4. there twenty-one possible pair are genotypes. combinations or results, interpret To strip the test uses a test with six chemical Each specific enzyme probe dots. dot of a consists selectively DQ Alpha binds to one of the six alleles. Because the probes, DNA, membrane, rather than the are fixed on this is called a blot. strip “reverse” Ibid. test This is then immersed containing solution product. DQ Alpha the PCR for alleles present product the PCR attach corresponding then to their enzyme probe bond, strip. on the test the alleles the dots Where

162 two turn blue to indicate which six dots will Two of the turn blue. If an individual is genotype. an individual’s alleles constitute identical, DQ are Alpha two alleles homozygous, meaning that the dot will turn blue. one blood revealed DQ performed on defendant’s Alpha test 4,4 homozygous. Approxi- DQ is or genotype Alpha for that his (about people) population one-in-six mately of the entire 17% (about one-in-eight) population African American 11.9% of the genotype. share box-spring from the on a stain

DQ Alpha performed tests blood 2 DQ Alpha alleles and 4. presence of the indicated the fabric 2,4. DQ genotype Alpha was Schnaps’s for donor, single spring were from a stain on the box If the blood possess because he does could have been excluded defendant alleles, matched the howev- Schnaps, genotype the 2 allele. whose however, If, box er, the blood on the excluded. could not be donor, i.e., one sample, from more than spring from a mixed 4 is that excluded. The reason cannot be then defendant allele, present in the blood stain. possessed, was which defendant evidence, that the box- prosecution established other Based on sample. a mixed spring stain was jurisdictions have admitted Jersey and in other

Courts New scientifically DQ Alpha test as technology and the results of PCR 277, Dishon, 254, N.J.Super. 687 A.2d 297 v. reliable. See State (1997) denied, 144, 112 693 A.2d (App.Div.), 149 N.J. 1074 certif. hearing unnecessary to establish the (finding that testimonial Williams, DQ testing); v. acceptance Alpha DNA State general (Law Div.1991) 369, 381, (holding that A.2d 960 N.J.Super. 252 599 accep pointed general “overwhelming persuasive evidence” Haddock, test); 257 DQ Alpha State v. process and tance of PCR (1995) DQ Alpha 964, (admitting test P.2d 152 results Kan. Palumbo, reliable); scientifically People v. 162 Misc.2d as (same); Gentry, h v. 125 Was .2d (Sup.Ct.1994) State N.Y.S.2d 197 — denied, U.S. -, 116 S.Ct. cert. 888 P.2d (1995) (same). L.Ed.2d *38 does admissibility PCR/DQ

Defendant not contest the of the Alpha however, objects, admissibility test He results. to the test, polymarker validity the of the results the dissent which concedes. Post 699 A.2d at 654. Because of defendant’s objection, briefly polymarker we discuss the test. (PM) Polymarker

b. The Test test, DQ Alpha The PM test works like the but instead of testing composition gene, genes. for the of one it tests for six The genes density six in lipopro- tested the PM test are: LDLR flow A), receptor), tein GYPA (glycophorin gamma- (hemoglobin HBGG D7S8, globulin), (Group Component). and GC Each of those genes consists combinations of either two or three different test, test, alleles. A DQ Alpha similar to used in the blue-dot genotype gene. explained by determines for each As Ms. Cooper, of the experts, begins by one State’s the PCR test Then, amplifying amount of passed DNA. the DNA is over a polymere strip. locus, type test When DNA finds its on changes the dot color. Each combination of alleles is associated population frequency expressed with a percentage. that is as a ascertaining sample’s genotypes population frequen- After a cies for genes, each of the five a individual mathematical formula “product known as the rule” reveals the that another likelihood subject’s individual in relevant population would share the test rule, genotype all targeted genes. product for five which gives profile frequency population product in a as a of coeffi- frequencies, cients assumption and allele on the rests population randomly be single, mating can treated as a unit. NRC Report, rule, supra, product population at 5. Under the frequencies genotypes each of multiplied for the six are one another. genotype present LDLR is

Defendant’s for in 56% 50%, population, African-American his GYPA HBGG in his 27%, 45%, 17%, DQ Alpha his D7S8 his GC in and his in 11.9%. rule, Applying product prosecution’s expert testified that genotype defendant’s Americans would share Afincan one-in-170 D7S8, product GYPA, HBGG, loci. The LDLR, and GC for the = .0058, or, x x x x .17 .27 .45 .56 .5 equation would be: rule By ratio, African Americans. one-in-170 about expressed as prod- frequency in the DQ Alpha genotype including defendant’s loci, only one-in-1400 polymarker along with the equation uct rule genotype composite defendant’s would share African Americans x x be: .56 .5 product equation rule would genes. The for all six *39 = ratio, result Expressed x x as a the x .00069. .45 .17 .119 .27 African Americans. one-in-1400 is about Technique Dot-Intensity 4. The or Association-of-Alleles test, objection polymarker to the general to his In addition accurately polymarker test cannot the defendant contends trial, this experts At the described analyze sample. a mixed-blood test on a mixed- analysis interpreting polymarker the of of method of alleles.” Scientific involving “the association sample as blood “dot-intensity” analysis, description articles describe it as generally opinion. in this adopt we Word, experts, hearing, one of the State’s pretrial Dr. At the single designed so that if a polymarker test is testified that the (i.e., A, B heterozygous alleles pair contributes a of blood source A, A), equal turn B, two alleles will blue not or C but however, If, contribute the two or more blood donors intensities. than allele, intense or a darker blue would be more same dot only one such allele. The same donor contributed if an individual the same two of if one blood donor contributed result would follow B, (i.e., A, A or homozygous alleles pair in a allele so as result B).A, sum, sample is whether a the determination B but intensity of depends blood on the than one source of from more color of the dots. (1) bloody samples: on a PM tests on three performed Cellmark (2) only; on a towel, contain from the victim assumed to blood (3) blood; portion from a of the box- and sample of defendant’s polymarker of blood. The that contained a mixture spring cover test spring on the blood removed from the box revealed the (A B) LDLR, presence possible GYPA, of both and alleles for and D7S8, (A, C) B, possible and all three for alleles and HBGG and most, possess, GC. An can individual two different alleles. Consequently, presence of three different at the alleles HBGG sample and GC loci demonstrated that the DNA from the box spring mixture was a of blood from more than one individual.

Dr. Word testified that PM test conducted on mixed- sample spring blood from the box revealed two distinct sources. Two sets of alleles caused the color imbalances in the dots from sample. the box-spring strip, test On the some of blue dots darker, appeared lighter. dots, but others were None however, lighter than dot-intensity the control dot. Those presence pairs imbalances resulted from some alleles singly. other dot-intensity

Using analysis, explained Dr. Word that a theoreti- cal subtraction from victim’s blood the PM results of the box-spring sample genotype subject. revealed the of the second explained (A, B, She that if all present three alleles for GC were C) A and the strip, allele-dot was darker on the test sample alleles, allele, contained two A one B and one C allele. *40 donors, then, The of genotypes contributing had be either AC, AB AA and or and other BC. No combinations consisted of alleles, only two A B and one each of and C. dot-intensity analysis

Based of on the blood stain from the box spring, experts the State’s concluded that the could blood have of Schnaps’s. been mixture defendant’s blood of with that (1) assumptions analysis: Cellmark made two in its Schnaps donor to on box-spring sample; was a the blood (2) people. was a two the blood mixture of spring presence

The for on PM test GC the box revealed the A, B, alleles. was and C The A dot darker than the other two. That composition difference indicated that the of the GC the sample alleles, plus consisted of two A the B If and C alleles. donors, sample possible had two combinations were AA and remaining The BC, Schnaps type AC for GC. or AB and AC. was genotype AB. was had to be AB. Defendant’s donor therefore B sample the A and box-spring on the revealed The D7S8 test alleles, being only possible combina- A dot darker. The with the tion, then, type for The Schnaps AB. was AA D7S8. was AA and genotype AB. AB. Defendant’s was remaining donor had to be A, B, equal alleles at revealed the C The HBGG test darker, Dr. testified that no dot was Word intensities. Because BC, CC, AB and only AA and possible combinations could be type BB for HBGG. Cellmark Schnaps and BB. or AC donor, then, remaining had to be AC. Defen- that the concluded genotype was AC. dant’s being B the A dot revealed A and alleles with

The GYPA test The other donor had to Schnaps type was AA for GYPA. darker. AB. Defendant was AB. be being B the B dot A and alleles with

The LDLR test revealed type LDLR. The other donor had to Schnaps was AB for darker. genotype for LDLR was BB. be BB. Defendant’s results, experts concluded that the State’s Based on those test to the Harvey Schnaps nor could be excluded as donors neither test, part sample. with the RFLP box-spring blood As infra rV.A.2., analysis population step involves statistics. the second present part ease is at of the statistics Our discussion infra VI. -

- B 1. Standard Review appellate the standard of question

The first concerns admissibility on the of DNA review of a trial court’s decision deter Generally, appellate courts review a trial court’s evidence. of discretion. admissibility of evidence for an abuse mination of the (1969). Conklin, 540, 545, v. 54 N.J. A.2d 1 State *41 however, remains, the abuse-of-discretion question whether stan-

167 dard apply should concerning decisions the admission of novel begin by scientific evidence. recognizing We that the best time to make the record on admission of such evidence is in a Rule 104 hearing. party offering the evidence proof. bears the burden of

Windmere, Co., Inc. v. International Ins. 373, 378, 105 N.J. 522 (1987). A.2d 405 lawyers Trial myriad must make choices in deciding present how best or refute novel scientific evidence. Those choices construct the universe of discourse within which the trial court decides whether the community scientific considers the acceptable evidence generally. The choices also influence the presentation of the jury evidence to the appeal. and the record on many issues,

Unlike evidentiary other whether the scientific community generally accepts a methodology or test can transcend Miller, particular dispute. People v. 173 Ill.2d 219 Ill.Dec. 43, 61, (1996) (McMorrow, J., N.E.2d concurring), — denied, cert. U.S. -, (1997). 117 S.Ct. 137 L.Ed.2d In determining general acceptance of novel scientific evidence case, in one generally court will establish the acceptance of States, v. evidence in Jones United other cases. 548 A.2d (D.C.1988). Notwithstanding the position trial court’s better shape determinations, the record and make factual appellate important courts retain an residual questions role for concerning courts, admission of scientific evidence. Like trial appellate digest expert courts can testimony as well as review scientific literature, judicial decisions, and other authorities. To the extent general acceptance focuses on issues other than a witness’s credibility qualifications, or deference to the trial court is less Miller, supra, appropriate. 219 Ill.Dec. 60-62, 670 N.E.2d at (McMorrow, J., 738-40 concurring). reviewing

When a decision on the admission of scientific evidence, appellate an court should scrutinize the record and independently authorities, review including judicial the relevant opinions and scientific rapidly literature. changing world of science, continuing modem may research affect the scientific *42 168 technology. By reviewing post-

community’s acceptance of a novel appellate rapid pace court can account for the publications, trial an technology. continuing recognizes review also of new may change of trial and the general acceptance between the time Bible, 549, appellate v. 175 Ariz. 858 P.2d time of review. State denied, 1046, 1578, 1152, 1189 (1993), 511 114 n. 33 cert. U.S. S.Ct. State, (1994); 573, 128 L.Ed.2d 221 see also Hadden v. 690 So.2d (Fla.1997) (finding appellate that an court consider the 579 “should general acceptance appeal issue of at the time of rather than trial”). 281, Lindsey People, the time of But see v. 892 P.2d 290- (Colo.1995) States, (reasoning Frye 91 25 v. 293 F. n. United (D.C.Cir.1923), “requires nothing general accep 1013 more than admitted”). Moreover, by tance at the time the evidence is information, examining appellate such additional an court can prevent any injustice by or of rendered the admission exclusion Bible, supra, the evidence at the trial level. 858 P.2d at 1189 n. 33 (stating product if “the result obtained is the of invalid theory, good accept simply it scientific there is no reason to inquiry”). inception because we were fooled at the of the appeal, On this we do not decide whether a different standard of appellate apply review should to a trial court’s decision to admit or cases, expert testimony exclude in civil where the focus is not on generally accepted, whether the scientific evidence is but rather methodology supported by whether it derives from a reliable some 417, 404, expert Landrigan Corp., consensus. v. 127 N.J. Celotex (1992); 605 A.2d Corp., Rubanick v. Witco Chem. 125 N.J. (1991). 421, 449, 593 A.2d 733 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 113 S.Ct. 125 L.Ed.2d (1993), essentially Supreme adopted the United States Court the same standard for federal courts in both civil and criminal question appropriate appellate cases. The standard of currently for review federal courts is before the United States (11th Co., Supreme Court. Joiner v. General Elec. 78 F.3d 524 — Cir.1996), U.S. -, granted, cert. 117 S.Ct. 137 L.Ed.2d (1997). analysis We restrict our to the standard of review of generally accepted. evidence that the trial court has found to be Expert Testimony Admission 2. Standard for virtually which is Jersey New Rule Evidence 56(2), expert governs Evid. R. the admission to former identical testimony. provides: The rule knowledge the trier of fact to will assist If or other scientific, technical, specialized a witness as an issue, or to determine a fact qualified

understand the evidence training, knowledge, thereto or education skill, may testify experience, expert or otherwise. the form of an opinion *43 effect, requirements on the imposes rule three basic In this testimony: expert admission of (1) subject matter that is the ken of must concern a beyond the intended testimony average juror; (2) subject at a state of the art such that an of the must be expert’s testimony reliable; could be sufficiently

testimony (3) the intended testimony. the witness must have sufficient explain expertise (1984); 1991 702, 478 A.2d 364 N.J.R.E. [State 178, 208, v. 97 N.J. Kelly, Comment.] Court Committee Supreme testing beyond that DNA the ken does not contest Defendant Likewise, dispute the juror. the defense does not average experts in the field of Cooper or Dr. Word as qualifications of Ms. community the scientific testing. The sole issue is whether DNA justify of the accepted tests to admission sufficiently the DNA experts. testimony of the State’s general acceptance or apply continue to

In criminal cases we expert reliability of testi- Frye determining the scientific test for mony. Frye, supra, the wrote: In court admitting go long from a in deduced testimony courts will [W]hile way expert thing

well-recognized the deduction or from which scientific discovery, principle gained general in the must established to have acceptance is made be sufficiently belongs. in which it particular field added).] (emphasis [293 F. at 1013-14 1993, Supreme Court abandoned the United States test for ad as the exclusive Frye's general-acceptance standard testimony in of the more relaxed standards mitting favor scientific Daubert, 579, supra, 509 702. U.S. Federal Rule Evidence 2786, States 469. Even before the United 125 L.Ed.2d 113 S.Ct. Daubert, the test this Court had relaxed Supreme decided Court 170 Landrigan, admissibility of

for scientific evidence toxic-tort cases. Rubanick, 404, 1079; pra, supra, 127 N.J. at 605 A.2d su 421, expanding N.J. at 593 A.2d 733. We have been cautious in Fertig, more standard to other contexts. v. relaxed State 126, (1996); 115, 484, Spann, 668 A.2d 1076 N.J. State v. 130 N.J. 509-10, (1993); 554, 572-73, J.Q., 617 A .2d 247 v. State N.J. (1993). Thus, 617 A.2d 1196 the test in criminal cases remains community generally accepts whether the scientific the evidence. Windmere, 247; Spann, supra, supra, N.J. 617 A.2d 386, 522 105 N.J. at A.2d 405. proponent newly-devised

A technology of a scientific prove general acceptance ways: can its in three (1) general among as to the those by expert testimony acceptance, profes- on which the sion, witness based his or her premises proffered expert analysis; (2) legal writings indicating authoritative scientific and the scientific by underlying community accepts premises proffered testimony; (3) judicial gained general indicate the have opinions expert’s premises acceptance. (citing 97 N.J. at 478 A.2d 364 State v. [Kelly, Cavallo, 88 N.J. supra, (1982)).] 443 A.2d1020 “clearly The burden to establish” each of these methods is on the *44 Williams, proponent. 376, supra, N.J.Super. 252 at 599 A.2d 960. applied Courts have this test in various contexts to evaluate the See, reliability e.g., Kelly, supra, of scientific evidence. 97 N.J. at 209, (admitting expert testimony relating 478 A .2d364 to battered Zola, syndrome); 384, 412-13, woman’s State v. 112 N.J. 548 A.2d (1988) (admitting expert testimony 1022 that modified-chemical denied, presence victim), test detected of saliva on cert. 489 U.S. 1022, 1146, (1989); Windmere, 109 supra, S.Ct. 103 L.Ed.2d 205 373, 105 (concluding voice-print N.J. at 522 A.2d 405 evidence method); reasonably does not derive from reliable scientific Ro Kimmelman, 66, 82, (1984) mano v. (holding 96 N.J. 474 A.2d 1 breathalyzer reliable); Hurd, scientifically 525, State v. 86 N.J. (1981) (admitting hypnotically 432 A.2d testimony 86 refreshed subjected safeguards ensuring reliability when hypnotic to strict of

171 518-20, A.2d N.J.Super. 522 King, 215 procedure); State v. test, presence (finding isoenzyme which detects (App.Div.1987) 455 reliable); scientifically systems, held enzyme of six distinct blood 378-83, (holding Williams, 599 A.2d 960 supra, N.J.Super. 252 at sufficiently tests reliable PCR/DQ Alpha blood test Gm/Km trial). admitted at be Acceptance

3. General a scientific commu general acceptance within Proof of Windmere, 379, 522 A.2d supra, 105 N.J. at nity elusive. can be counting simply than how Satisfying test involves more 405. technology. reliability proffered many accept the scientists Proving Williams, A.2d 960. supra, N.J.Super. at application of the scientific acceptance the strict general “entails method, extraordinarily high proof requires an level which controlled, consistent, experi validated prolonged, on based Rubanick, Essen supra, 125 593 A.2d 733. N.J. ence.” acceptance only technique general achieves tially, a scientific novel stage. experimental to the demonstrable passes it from the when Windmere, 2, 522A.2d 405. supra, 105 N.J. at 378 n. however, require com acceptance, does

General accuracy or the exclusion of agreement of the test plete over Biunno, N.J. Richard J. Current possibility of error. See Johnson, 702; Evidence, v. 4 to State Rules Comment N.J.R.E. (1964). necessary 146, 171, is it A.2d 809 Neither 42 N.J. procedures are methodology, and techniques, that the demonstrate acceptance the scientific necessary it within infallible. Nor is Tate, 64, 83, 505 A.2d community v. 102 N.J. be unanimous. State Windmere, (1986). theory Every has its detractors. scientific Here, burden is 522 A.2d 405. State’s supra, 105 N.J. at interpretation of its and the prove polymarker that the test techniques that non-experimental, demonstrable are results unanimous community widely, perhaps not but relevant scientific *45 ly, accepts as reliable. Polymarker

4. Test proponent

A prove general of scientific evidence can ac ceptance through expert testimony, publications, judicial opin or ions. Expert Testimony

a. pretrial hearing, At the Dr. Word testified that the scientific community generally accepts polymarker scientifically test as agrees. reliable. The dissent Post at 699 A .2d at 654. Dr. explained polymarker technologically Word test is procedurally PCR/DQ similar Alpha to the well-established test. Cellmark, moreover, conducted validation studies on the PM test. studies, protocols which were conducted in accordance with Working Group Analysis established the Technical on DNA (TWGDAM), reliably Methods revealed produced that the PM test Approximately thirty forty accurate results. in laboratories United States use the PM test either for casework or validation independently studies. Six of the better-known laboratories had polymarker tested the and likewise concluded that it was reliable. Investigations Those laboratories included: the Federal Bureau (FBI), Justice, Department Georgia Bureau of Investi gations, Laboratory Berkeley, the California the Center for Boston, Regional Blood Research in Laboratory Crime Community College, Indian River and Roche Biomedical Labora kit, tories. all using Of the laboratories the PM none had ever reported receiving properly an incorrect performed result from a test. challenged general acceptance

Defendant polymarker test, asserting subject that some laboratories still it to validation expert hearing, studies. Defendant’s at the Rule 104 Dr. Robert Shaler, polymarker testing yet testified that appropriate was not for procedures use casework and that Cellmark’s validation were flawed.

The trial court concluded: Based of Dr. Charlotte and the scientific upon expert testimony Word, literature admitted into has evidence, been validated to be sufficiently PCR/PM *46 and scientific community; in has been the relevant casework; used accepted and reliable results. uniform reasonably produces to conclude that the scientific the record leads us Our review of accepted polymarker test. Dr. Word community generally has polymarker’s independent tests have validated established that employed have highly-regarded laboratories reliability and that reliability of the Only defendant doubts the test casework. PM test. Publications

b. moreover, approve publications, Scholarly and scientific test, polymarker the State support In of the polymarker test. Herrin, article, & George Nicola Fildes published submitted one AmpliType Test of the PM DNA Reynolds, “Evaluation Rebecea Sci. 1247 Samples,” 39 J. Forensic System on Forensic Case (1994) (Herrin article), articles that since have been and two “Consistency Reynolds, and Nicola Fildes & Rebecca published: Between Seven Labora- Reproducibility AmpliType of PM Results (Roche (1995) Results,” Sci. 279 Trial 40 J. Forensic tories: Field al., Budowle, Population study); and Bruce et “Validation field (PM HBGG, D7S8, LDLR, GYPA, and and Gc Loci Studies of the Typ- Loci), HLA-DQx Using Multiplex Amplification And A and (FBI (1995) All Procedure,” Report). Forensic Sci. 45 ing J. reliable that the PM test was of those documents concluded three Further, forty-four a list of the State submitted for casework. lectures, seminars, workshops and which posters, presentations, regarding polymarker-related issues forensic scientists discussed research, had attended fifteen testing, and results. Dr. Word reliability of the on the twenty and had lectured such lectures many meetings. of the polymarker test at scholarly too few to works were argues that Defendant Further, defendant general acceptance. support a conclusion peer for provide effective forums do not maintains lectures addition, alleges that Cellmark violated defendant review. by failing publish testing both for DNA national standards primers types results its validation studies probes that it uses. however, lectures, general support acceptance articles and polymarker Admittedly, prior test. involved cases have See,

greater scholarship. e.g., Kelly, supra, bodies of accumulated (noting 97 N.J. at A.2d 364 were that there “at least five seventy papers books and almost scientific articles and about *47 Williams, syndrome”); N.J.Super. supra, battered-woman’s 252 382, testifying (noting experts 599 A .2d 960 that six had authored, articles, cumulatively, many 600 close to on tech PCR recognize, additionally, nology). We the correlation between the published general acceptance of number articles and the of a Yet, subject. required specific never we have a number of articles satisfy general acceptance. Rather, always to the test our of focus existing accep has whether been literature reveals a consensus of Windmere, regarding technology. supra, tance 105 N.J. at 383-84, 405, example, 522 although ample A .2d for literature subject analysis, on of voiceprint existing “journals existed contrast, disarray.” By [were] all of the written works on the polymarker agree pro test that the test is reliable. Defendant documents, published pre-publication, duced no or suggesting anything contrary. to the

Further, circumstances, appropriate “[u]nder speeches, addresses, may and other similar sources be used demonstrate acceptance premise by community.” Kelly, of a the scientific supra, 364; 211 N.J. at n. see A.2d also State v. Anderson, 284, 881 (1994) 118 N.M. P.2d (rejecting 42-43 claim presentations, opposed that as publications, to formal were inade review). peer quate forty-four as presenta From the lectures and tions, appears it clear that community the forensic-science has kept developments adequate abreast of opportunity and has had peer testing. for review of PM trial, moreover,

Since the of conclusion defendant’s the National Council, Research of which members are drawn from the Sciences, of Academy councils the National of the National Acade- Medicine, published my of The Engineering, and the Institute of (referred to supra DNA Evidence as NBC Evaluation Forensic of report, Technology DNA update an to their 1992 Report), PCR-systems, in- report concludes that Forensic Science. “ready Report, used.” NRC cluding polymarker, are be polymarker supra, report at 119. The further confirms respect for “validated with tests robustness with has been insults,” popu- and that “substantial information on environmental frequencies” polymarker exists for the loci. Id. at 72. We lation literature, existing combined with research shared conclude symposia, supports finding polymarker at lectures and generally accepted by the as reliable forensic science test community. Opinions

c. Judicial hearing, time the Rule 104 both the State and the At the of judicial opinion discussing polymark any were of defense unaware Pearson, N.J.Super. er Wilkerson v. evidence. See (Ch.Div.1985) (holding judicial opin 509 A .2d 818 that absence acceptance by particular type demonstrating other courts of ions not, itself, finding technique should scientific foreclose *48 general acceptance reliability). Before the Rule 104 scientific and however, polymarker hearing, a New York court had admitted 26, 1994, Morales, N.Y.L.J., at 34 People v. Oct. evidence. 648, 217, aff'd, appeal (N.Y.Cty.Ct.1994), 227 A.D.2d 643 N.Y.S.2d (1996). Morales, denied, experts In from 677 301 the N.E.2d Laboratories, University for Research Yale School Center Blood Genetics, the of the Department of Medicine’s of and Office Chief support in admission Medical Examiner for New York testified of Curiously, from York the witness the New evidence. supporting polymarker the of Medical Examiner admission the Shaler, against expert was Dr. the same who testified evidence polymarker present of in case. The admission evidence the New People that met in York court concluded “the have their burden establishing sufficiently here that the PCR tests issue are general acceptance community in scientific gain the established reliability.” satisfy the of Ibid. and standard 176 case, present trial in

Since defendant’s the at least other six polymarker testing scientifically courts have held that is reliable. (8th Beasley, 1440, Cir.1996), States v. 1448 United 102 F.3d cert. — denied, -, (1997) 1856, 117 US. S.Ct. 137 L.Ed.2d 1058 (holding Alpha DQ polymarker testing sufficiently that are general acceptance under have reliable Daubert and achieved Shea, community); within relevant scientific States United v. 957 331, (D.N.H.1997) F.Supp. (finding testing, 338 including PCR 702); polymarker testing, reliable under F.R.E. United States v. Lowe, 401, (D.Mass.1996) F.Supp. (finding 954 polymark 418 test, D1S80, er and another sufficiently PCR-based are reliable State, Daubert); 545, (Alas under Brodine v. 936 P.2d 550-51 ka.Ct.App.1997) (finding polymarker testing generally accepted in community); People Pope, Ill.App.3d scientific v. 284 220 309, 314, (1996) DQ Ill.Dec. 672 N.E.2d (finding Alpha polymarker typing generally accepted are in scientific Commonwealth, community Frye); under v. Va.Ct.App. Keen 795, 485 (1997) (rejecting challenges S.E.2d defendant’s test). polymarker Pope, supra, the the of Illinois Court Appeals testing polymarker generally accepted found in scien the community Frye hearing tific when in even that ease involved testimony witness, expert. one Pope, State’s supra, 220 Ill.Dec. at N.E.2d at 1326. Admission polymarker jurisdictions supports test in other our conclusion that correctly the trial court present admitted the evidence case. thusWe conclude that the trial court admitting did err in expert testimony polymarker on results test. We are polymarker satisfied that technology scientifically reliable and that Cellmark conducted the tests accordance with estab- procedures. lished Dotr-Intensity Analysis

5. polymarker Defendant asserts even if the results of test admissible, dot-intensity analysis, *49 are the State’s method of inter preting scientifically sample, mixed-blood is unreliable. The rejects dot-intensity Indeed, analysis. dissent likewise the dissent goes dot-intensity rehable, analysis so far as to assert that if “the would being results obtained be inconsistent with defendant Post at A.2d at murderer.” 667.

At hearing, dot-intensity analysis presented the Rule 104 as integral part polymarker testing. an of hearing The Rule 104 testimony involved consideration of oral and written evidence on polymarker dot-intensity analysis. test and Both the defense dot-intensity analysis application and the State considered as an of test, polymarker apart polymarker not as an issue from testing. holding In polymarker testing that the results of were admissible, implicitly approved dot-intensity analy- the trial court sis, polymarker which was the use of the on test which the State relied. record, posttrial publica

Based on the as well as on judicial opinions, tions and court we conclude the trial correct ly testify experts dot-intensity analy allowed the about State’s concluding, sis. recognize so we that a court must examine step process technique. Kelly, supra, each or of a scientific Thus, independently N.J. at A.2d 364. we examine dot- intensity analysis to it determine whether has obtained sufficient acceptance justify admission its results of into evidence. Testimony Expert

a. pretrial hearing, At testimony the defense offered the of Dr. Blake, report by Shaler and a Dr. written of Forensic Science Associates, disagreed of whom with on propri both Dr. Word ety dot-intensity analysis. Dr. disputed Shaler Cellmark’s theory dot-intensity polymarker that the on imbalances test strip represented presence pairs. allele He testified that strips such color on imbalances occurred even the DNA test single-donor samples Schnaps’s control defendant’s and blood. example, intensity For Dr. Shaler to have claimed detected imba lances on defendant’s GYPA and HBGG loci on the victim’s defense, According GC locus. to the those variances the dot *50 178 Harvey’s destroyed Schnaps’s strips in control

intensities analysis sample integrity dot-intensity of of the mixed-blood agrees, asserting spring. taken from the box The dissent that degree naturally occurring that there are variances dot “[t]o predicted analysis, prior intensities that cannot be to the dot- intensity analysis disintegrates as a reliable and useful test.” Post Shaler, 169, According at 699 A.2d at 620-21. to Dr. the PM test spring supported of the a calculation of “all the second box types possible” necessary fill donor which would be to out the alleles. polymarker

Defendant also asserts that color in the imbalances strips may pairs, by test have been caused not allele but human manufacturing errors such as contamination or defects. Dr. Shal- er, trial, pretrial hearing at the and at faulted for not Cellmark repeating polymarker procedure despite possibility test of contamination, error or contamination. He further stated that defect, manufacturing improper laboratory procedures or caused the dot imbalances. previous holding polymarker scientifically

Our test is reliable, IV.B.4.d., supra part leads us to the conclusion that the foregoing challenges dot-intensity analysis regarding to Cell test, performance polymarker mark’s of the concern not the admissibility, Marcus, weight supra, but the of the evidence. See N.J.Super. (holding interpretation 683 A.2d 221 of bloodstains, developed extra bands on autorads from an “like expert’s ability perceive abnormality x-ray, to an on an is a matter Fishback, province jury”); within supra, 851 P.2d at 893 (reasoning challenge techniques that defendant’s RFLP autorads, analysis, including interpretation weight concerns admissibility typing Frye); not of DNA evidence under State v. Schweitzer, (S.D.1995) (reasoning 533 N.W.2d that DNA- expert’s regarding conclusions results of DNA test were issue of consider); weight jury Kalakosky, for State v. 121 Wash.2d (1993) (holding 852 P.2d that defendant’s assertions specific laboratory procedures analyze utilized to DNA sam flawed, pie goes evidence, weight were admissibility). As such, the ultimate determination of properly these issues was left jury. to the experts,

The State’s Cooper, Dr. Word and Ms. differed from Shaler, expert, the defense Dr. interpretation of the dot intensities on the control strips. vigorously ques- Defense counsel *51 experts tioned the State’s whether the differences in the dots of the victim’s and samples defendant’s blood undermined the dot- intensity analysis sample spring. from the box On cross- examination, Cooper disputed Ms. Dr. Shaler’s claim that dot- intensity imbalances existed at the HBGG and GC loci on the Schnaps’s strips. defendant’s and Cooper test Ms. stated that only place “[t]he I really any where type slight see of a difference would be at the Harvey.” Moreover, GYPA locus for Mr. neither Cooper Ms. any nor Dr. Word found evidence that Cellmark had made a in polymarker mistake the conduct of the According test. Cooper, to Ms. intensity imbalance on defendant’s GYPA locus probably was due to a present variant allele in some African Cooper Americans. explained Ms. that the difference in dot intensities at the GYPA locus was not testing due to errors in or manufacturing Indeed, to a defect. nothing in supports the record conjecture the defense’s manufacturing contamination or de- any fects caused differences in dot intensities. goes beyond

The dissent arguments. the defendant’s For ex ample, repeatedly the dissent polymarker concludes that the test kit used “designed solely State was to determine the presence alleles,” or absence of certain so that it at most can “potentially show that a mixture in exists certain circumstances.” 244, 259, Post at 699A.2d at 666. State, however, presented expert testimony at the Rule 104

hearing demonstrating that differences in intensities of the test- strip dots could sample. reveal the blood donors ato mixed-blood Dr. Word testified that Amplitype the Perkins-Elmer PM test strip designed sample single so that a from a individual would produce similar dot intensities within each locus for which the heterozygous. If donors contribut- two or more blood

individual allele, of the same ed same or one blood donor contributed two alleles, pair homozygous in a that dot would allele so as to result by an if one of that allele was contributed be more intense than further testified that Cellmark’s individual donor. Dr. Word study. study That included a mixture-dilution validation studies provided with information on the dilutions were Cellmark capable the mixtures could be of detection and showed interpreted many cases. characterization, post

Contrary dissent’s see at to the testimony expert supports of the State’s A.2d general acceptance dot-intensity analysis. conclude that We right preventing the trial court reached the decision testimony. jury hearing from DNA State’s argues that certain omissions in the The dissent nonetheless testimony parties dot-intensity analysis expert of both reveal that inability to dot- is unreliable. It maintains that the State’s use DQ intensity analysis Alpha proves analysis for that the test “DQ Alpha does not work. It further states that the marker was *52 using testing strips.” retested the PM Post at 265 n. 699 A.2d record, however, at 668 n. 14. The contains no evidence of two Likewise, DQ Alpha record contains no sets of test results. the dot-intensity analysis application discussion of the to the results trial, DQ Alpha challenge At the did not the of the test. defense Hence, any analysis. the record does not reveal absence such dot-intensity analysis DQ Alpha performed whether can be on a DQ Alpha test or whether the test for the allele differs from the DQA1 polymarker study that “[O]n test. The Roche field states probe strips, probes the are not as well balanced and the DNA signal easily intensities cannot used as to associate alleles from be major and that “it to determine the different sources” was easier DQA1 genotype probe strips on PM DNA than the DNA the probe strips the could be because the relative intensities of dots Fields, 284; compared.” supra, at see also 40 J. Forensic Sci. (PCR) Blake, al., “Polymerase Amplifi et Chain Reaction Edward Leukocyte Antigen (HLA)-DQa cation Human Oligonucleotide Typing Biological Samples: on Experience,” Evidence Casework 1992) (May DQ (reasoning J. Forensic Sci. for results, Alpha detected, necessarily test a “mixture cannot be however, if two contributors to a mixture contribute more than no equivalent two approximately alleles total and contribute (“Mixed DNA”); Report, supra, samples amounts of NRC at 130 complicated can DQA, also lead to more calculations with where subtraction.”). some alleles are inferred Finally, polymarker the dissent claims that from the results the box-spring sample prove dot-intensity HBGG marker of the 263-265, analysis not Post at does work. A.2d at 667-668. “A,B,C,” for spring marker results the box were with HBGG all in intensity. Schnaps’s type three alleles balanced at the “B,B.” analysis, According dot-intensity HBGG marker was the B appeal, allele should be more intense. Neither at trial nor on however, challenged polymarker has defendant or the results analysis dot-intensity box-spring sample HBGG Consequently, marker. the State had opportunity never has an challenge. Perhaps meet not defense counsel elected challenge findings strategic that the for reasons. HBGG locus us, unchallenged On the before record results of dot- intensity analysis justify at the HBGG marker do a reversal of relief, application post-conviction defendant’s conviction. In an for may polymarker defense counsel make such use of the results at appropriate. HBGG marker as is b. Publications hearing,

At the Rule 104 introduced State three’ articles: study, FBI Report, the Roche field and the article. Herrin supra dot-intensity See Part All IV.B.4.b. three articles discuss analysis. dot-intensity analysis Not one states is unreliable. *53 go express interpret The no articles further than caution when ing through dot-intensity analysis. the results genotypes study designed to determine the Roche field was contributor, both, major or to a or minor

of either the contributor sample, sample. example, in a mixed where For mixed-blood component minor was intensity corresponding dots to the dots, study could not equal or to the control greater than study Consequently, identify major component. minor or category. uninterpretable placed such a result study study of dot- field was not a Apparently, the Roche analysis relative amounts of DNA intensity for mixtures where the however, study, equal. The concluded for each donor were strip could be a “valuable analyzing the of dots on a PM balance analysis system for of mixtures” and directed asset of the develop policies interpretation of for the individual laboratories history samples experience on and case infor- mixed-blood “based Here, interpre- developed such mation.” Id. at 284-85. Cellmark methods. tive “flatly Report that the FBI contradicts

The dissent contends dot-intensity analysis.” 699 A.2d assumptions of Post at differently. Report Report FBI The FBI at 676. read the We rule, samples general with two contributors of “[a]s stated displayed types predicted.” Report, FBI types PM PM as known added). profile to the supra, (emphasis at 49 Each contributed types samples contributors of known PM and when the with two were increased com shared alleles common the dot intensities FBI, in pared to alleles that were not shared. Ibid. Because the donor, study, already types dot-intensity knew the PM of each its Thus, contrary analysis necessary. to the dissent’s asser was not tion, any Report FBI did not refuse to draw conclusions from Rather, dot-intensity imbalances. Post at 699 A.2d at 665. acknowledged sharing of donors Report the FBI that mixtures intensity. in an dot same alleles resulted increased argues further the Herrin article “did not The dissent dot-intensity analysis sufficiently conclude that reliable in an actual criminal case.” Post at 699 A.2d warrant its use fact, dot-intensity analysis, supports at 665. the Herrin article *54 especially profile where the victim’s known allele at the relevant homozygous: locus is of the dot within loci allowed Comparison deduction of intensity some loci types even when of DNA from and separation cells was not sperm non-sperm complete. casework____In This to be in routine may prove this very case feature useful being fraction HBGG locus 3 dots with A non-sperm allele produced approxi- (indicating twice as intense as the B mately and C alleles that at least A alleles present).

were with the known from By comparison the victim in this case sample (HBGG AA), victim, assign it is to the A alleles to the possible and know that the B originated individual(s). and C alleles with another added).] (emphasis [Herrin et al, 39 J. Forensic Sci. at 1249-50 supra, publications Recent acceptance dot-intensity enhance the of analysis. Report The NRC states: Mixed are sometimes found in crime situations —for samples instance, blood from crime____ or two more at the scene of a In persons one of cases, many genetic contributors —for the victim —is and the example, known, profile might

unknown distinguish inferred. cases, some it be readily possible genetic the contributors to a mixture profiles in intensities of from differences typing; bands in an BFLP or dots in a dot-blot in either pattern case, the analysis is similar to the unmixed case. added).] (emphasis

[NRC at 129 Report, supra, Moreover, recently published Dr. Word has an validating article the use of the PM kit for samples. use on mixed-blood Charlotte al., “Summary J. Word et Twenty-Six Validation Studies from Forensic Laboratories in the United States and Canada on the AmpliType Use Amplification Kit,” PM PCR Typing (1997). J. Forensic Sci. 39

Our review of the relevant impression literature leaves the dot-intensity analysis topic is an esoteric of interest to a limited community. scientific community, however, Within that limited analysis sufficiently accepted has been permit jury that, recognize hear about it. below, We as occurred the trial dot-intensity analysis provides opening an for cross-examination contradictory expert testimony. however, opening, That deprive jury should not hearing testimony from about the analysis. recognize We also considering that other eases general acceptance of great- scientific innovations have involved a er number of supra scientific articles. See Part IV.B.4.b. No however, dot-intensity analysis. pre- As article, rejects

published discussed, supports acceptance of the test. viously the trend Opinions c. Judicial length, dot-intensity analysis at

Although no court has discussed Hamp- the District of New District Court for the United States *55 under Daubert premise recently accepted as reliable shire Shea, supra, In the defen- interpretive method. underlying this test should be excluded because argued polymarker that the dant person’s reliably of more than one detect mixtures PCR cannot rejected argu- F.Supp. at 339. The district court that DNA. 957 expert’s testimony that ment, government finding persuasive the identify a mixture from observable be able to “an examiner -will strengths signals indicated on the relative of differences Id. extremely circumstances.” strips, except in unusual PCR test at 340. Jersey Rule Evidence

d. New 403 argues that even if the DNA evidence Finally, the dissent methodology, generally accepted the evidence’s from a derives 270, value. Post 699 outweighs probative its prejudicial effect assumption challenges the particular, A.2d at 671. In the dissent box-spring sample and people provided to the two blood equal present suspect’s blood were the victim’s Nothing than real. argument is more theoretical amounts. The persons at suggests presence more than two in the record the crime scene. under general, evidence should be excluded whether Jersey prejudicial

New Rule Evidence 403 its effect because probative an issue remitted to the discretion outweighs its value is Wilson, 4, 20, v. 135 N.J. A.2d 1237 of the trial court. State 637 (1994). Only court commits a clear error of when the trial judgment appellate court disturb the trial court’s decision. does an (DiFrisco DiFrisco, (1994) 434, 496, 645 A.2d 734 State v. 137 N.J. — II), denied, -, 949, 873 cert. U.S. S.Ct. 116 133 L.Ed.2d (1996); Koedatich, (1988) v. State 112 N.J. A.2d (Koedatich I), denied, cert. 488 U.S. 109 S.Ct. (1989).

L.Ed.2d 803 We find no error in the admission of the DNA evidence. The probative effect of the is that evidence the DNA test results showed that defendant could not be as a excluded contributor to box-spring sample. specifying prejudi- blood Without how the outweighs value, cial effect of the probative evidence its suggests possible dissent of inquiry avenues that defense counsel might pursued. say have Suffice it to that defense counsel made a choice, different one that involved the cross-examination of the experts concerning dot-intensity analysis State’s of the blood. perceive We no reason to disturb the trial court’s ruling admitting the DNA evidence.

- V- argument We next evaluate defendant’s the trial court right violated present his constitutional by restricting a defense *56 expert potential examination of witnesses to flaws the adminis- polymarker tration of the test.

- A- holding After polymarker admissible, that the kit was the trial precluded court challenges admissibility further at trial. The however, ruling, court’s prevent did not defendant from introduc- ing weight credibility evidence relevant to the or expert of the testimony. ruling, prohibited accordance with that the trial court defen- (1)

dant from attempting jury before the to cross-examine the (2) experts State’s on Cellmark’s validation studies and elicit testimony from Dr. Shaler that FBI polymark- the did not use the test samples. er on mixed-blood Defendant claims the trial court committed reversible error it when barred him from cross- argument, it To the defense’s

examining on these issues. evaluate expert-witness testimony. scope the necessary to the review - -B expert, Cooper, explained the results first Ms. DNA State’s DQ Polymarker conducted on crime scene Alpha tests Cooper from Ms. samples samples and blood taken defendant. lab, the test its explained employing also that before PM study. a validation Cellmark conducted dot-intensity Cooper on the The defense cross-examined Ms. sought PM counsel in defendant’s test. Defense imbalances test the had not conducted the PM under elicit that Cellmark prescribed procedures. follow proper conditions and had failed to im- dot result from Cooper Ms. conceded that imbalances could hybridization temperatures, improper salt-solution proper or wash concentrations, stringent dis- improperly-timed or washes. She appeared puted dot on defendant’s that discernible imbalances explained could GC loci and that variations occur HBGG and positive the GYPA locus. control conducted with Because normal, investigate possible did for appeared test she causes questioned Ms. on Cooper also imbalances. Defense counsel lifting cycler during possibility the lid of the thermal accuracy process, she have amplification could affected the tests. work, Cooper’s all

Dr. testified that she reviewed of Ms. Word Cooper’s At agreed point all of results. one and that she with Ms. examination, about during prosecutor inquired a list direct prosecutor presentations on PM test. that the Concerned test, the court trying reliability to bolster the of the PM trial precluded inquiry. cross-examination, pressed Dr. on the dot

On defendant Word possibility that Cellmark had not followed imbalances on the *57 acknowledged testing procedures. Dr. that Cell- correct Word many to people mark contributed the mixed- did know how spring. sample from blood recovered the box redirect, Dr. performed On Word testified that Cellmark had with prosecutor validation studies the PM test. tried When inquire into the nature and conclusions Cellmark’s validation study, objected successfully. defense counsel Shaler,

According expert, defense Dr. Cellmark’s PM test results were flawed and of interpreting Cellmark’s method the test “scientifically emphasized Dr. pres- indefensible.” Shaler jury ence of dot imbalances to the and faulted Cellmark’s techni- doing cians for not possibility the tests twice. He also raised the that test strips Cellmark’s were defective.

Dr. Shaler further testified that he did not believe dot- intensity stating interpretation, “philosophical that had a he differ- experts. Accordingly, disputed ence” with State’s he Cell- mark’s that the box-spring thesis defendant could be linked to the requested stain. Defense counsel a side-bar conference because ask he wanted to Dr. about Shaler Cellmark’s validation work. The court it responded inappropriate inquiry deemed inquiry about validation because the was directed at the admissi- bility, weight, not the of the evidence.

Later, redirect, on Dr. his associating Shaler restated view that alleles was analyzing an unscientific method of a mixed-blood sample. presented Defense counsel then Dr. Shaler with an asserting that dot-intensity analy- article the FBI did not use objected. side-bar, technique. The sis State At defense counsel explained that he did not believe that the article went to admissi- bility, weight testimony but rather to the of Dr. Shaler’s associating interpretive technique. alleles was not valid The prosecutor responded admissibility that the article went to already that Dr. had Shaler testified his belief other dot-intensity analysis. scientists did not believe in The trial court objection. sustained the State’s

- -C Sixth Amendment to the United States Constitu paragraph Jersey tion Article 10 of New Constitution *58 188 right The to confront witnesses.

guarantee a criminal defendant’s right. State right to an essential element of cross-examine is (1991). 519, 530-31, Budis, A criminal 593 A.2d 784 v. 125 N.J. defendant, therefore, expert may an witness for cross-examine facts, methodology, underlying rationale State on the Martini, 176, 264, A.2d 131 N.J. 619 expert’s opinion. State v. — (Martini denied, U.S. -, (1993) I), 116 S.Ct. cert. (“The (1995); may expert also N.J.R.E. 705 133 L.Ed.2d 137 see underlying facts or data on cross- required ... be disclose examination.”). cross-examination, however, The rests scope of I, supra, trial discretion of the court. Martini within the sound Thus, 131 N.J. at 619 A.2d 1208. a defendant’s constitutional guarantee confrontation right to does not unlimited cross-examina Fensterer, 15, 20, tion of Delaware v. U.S. a witness. (1985). 15, 19 292, 294, 88 S.Ct. L.Ed.2d Here, court ruled that defendant could not properly the trial relitigate admissibility that the had The issues court determined. parties presenting to the court limited the evidence went weight polymarker results. test 1. Studies Validation argument

Without merit is defendant’s trial court rights refusing violated confrontation to allow him to cross- his examine validation studies. Defense counsel never Cellmark’s attempted on experts to cross-examine the State’s that matter. objected contrary, the prosecutor To defense counsel when attempted testimony from Dr. on Cellmark’s vali to elicit Word it dation therefore when states that trials. dissent misleads permit the trial did not defendant to examine the court scientific experts Post at 699 A.2d at on Cellmark’s validation studies. 674. precluded properly

The trial court defendant from elicit through expert ing testimony own about Cellmark’s validation his poly- studies. The issue of validation studies on the Cellmark’s reliability polymarker. properly marker concerns the more such, goes As the issue to the admissibility the test not its weight. compromise

We are convinced the trial court did not defen- rights. reveals, dant’s confrontation As the record defense coun- sel experts cross-examined the State’s on their methodologies and *59 on the results from the PM tests. Report

2. FBI The trial court should have allowed defendant to elicit testimony from indicating Dr. Shaler about an article that FBI the dot-intensity did use the technique. association-of-alleles or error, however, The was R. harmless. 2:10-2. previously explained, supra IV.B.5.,

As part of some defendant’s regarding dot-intensity criticisms the technique bore on the weight, admissibility Thus, not the of the DNA evidence. permitted court should have testimony defendant to elicit about article, only which weight went to the of the State’s evidence it that could identity determine defendant’s from the mixed-blood sample Schnaps’s taken from box spring. error, however, clearly capable producing was not unjust

an R. result. 2:10-2. Dr. Shaler prove tried to that dot- intensity analysis was unscientific. He also testified that other agreed. forensic Through testimony, jury scientists his knew questioned validity analy that some scientists of dot-intensity sis.

Knowledge position only the FBI’s would have added limited weight argument. previously discussed, supra defendant’s As IV.B.5., part not, states, FBI article did as the dissent dot-intensity analysis. 256-258, 280, contradict Post at 699 A.2d 664-665, Rather, 676. Report the FBI urged caution when inter evidentiary preting samples potentially may be from more Report, supra, than one donor. FBI 52. The article also states, however, sharing that mixtures of donors the same alleles intensity. resulted in an increased dot 49. Id. at

- -VI computed improperly argues that Cellmark Defendant next one-in-1,400 prosecution’s evi- with the DNA number associated improperly alleges that Specifically, defendant Cellmark dence. jury computation; inform the product-rule failed to its calculated calculations; associated with such statistical margin of the error that the contributor to mixed-blood improperly assumed echoing In addition to sample an African American. necessity criticisms, urges the of an inde- the dissent defendant’s evidence. hearing the admission of the statistical We pendent for find, however, admitting not err in statistic that the trial court did as tending not be excluded to show defendant could evidence found at the crime scene. a contributor the blood

- A- Harvey’s genotype for all Cellmark concluded DQ Alpha genes the PM and tests was six studied in both one-in-1,400 reaching African Americans. common to *60 conclusion, genetic frequen consulted databases of Cellmark together multiplied figures and genotype cies each those for product with rule. accordance population-frequency de-

Cellmark used two databases. One Americans, study fifty some rived Cellmark’s own of African from “paternity employees, and from work” of whom were Cellmark to a samples blood at the lab. Cellmark also referred done by sample from a of 100 African compiled Roche derived database challenge adequacy not of Cell- Americans. Defendant does Indeed, Dr. used the same databases mark’s databases. Shaler his calculations. above,

As DNA revealed the follow- mentioned defendant’s tests ing results: = Genotype BB 56% of African Americans of African Americans

LDLR: = = AB Genotype GYPA: 50% 27% of African Americans Genotype AC Genotype AB HBGG: = of African Americans 45% D7S8: = Genotype AB of GC: African 17% Americans = DQ Alpha: 4,4 Genotype of 11.9% African Americans According prosecution’s to the experts, with fore- someone genetic going make-up could not be excluded as donor to the sample mixed-blood from spring. recovered the victim’s box percentage To determine the of African-American individuals who genotype genes, would share defendant’s for all six Cellmark multiplied genotype frequencies another in one accordance with product part supra rule. See Application IV.A.3.b. product genotype rule indicated that genes defendant’s for all six one-in-1,400 approximately was common to African Americans. appeal, alleges one-in-1,400 On fig- defendant that Cellmark’s ure was incorrect because it did not include percentage African Americans who could have matched the mixed-blood sam- ple. argues alleged Defendant that this error arose because the DQ Alpha percentage product-rule used in Cellmark’s calculation 283-285, wrong. was agrees. The dissent at Post 699 A.2d 678-679. DQ Alpha sample test conducted on box-spring revealed presence the 2 possible alleles. It not was DQ Alpha

associate parties agree alleles with the test. The DQ Alpha possible genotypes test all the revealed that could 2,2; presence have combined reveal of the 2 and alleles: 2,4; 4,4. DQ 4,4, Alpha genotype Because defendant’s he potential people could be excluded as a donor if had two box-spring contributed to the stain. argues population

Defendant frequencies that the for each (2,2; 2,4; genotypes 4,4) these three should been have added DQ together inserting Alpha product- before statistic into the defendant, According rule calculation. individuals who share *61 polymarker defendant’s genotypes DQ Alpha five and who a have 2,2; 4,4 genotype 2,4; just 4,4 of either or be —not —could mixed-blood, excluded from box-spring sample. the 192 population population revealed the for the entire

Evidence genotypes: possible 9% frequencies for two of these three alleles, the 4 and 17% had and population the had the and basis, at 26% the argues that least defendant alleles. On (17% 9%) DQ Alpha genotype that + had a would population Therefore, alleg- box-spring sample. to defendant correspond the DQ Alpha 26% have used a value of es that Cellmark should account) 11.9%, (adjusted taking into to race rather than 17% Defendant con- product-rule it conducted the calculation. when yields a substituting DQ Alpha value result of tends that the 26% Thus, posits that one-in-666 .0015 one-in-666. defendant or genetic material consistent -with could have contributed individuals sum, box-spring sample. defendant con- in the detected unfairly prejudiced by stating him that one- cludes that the State Americans, in-1400, African could have instead of one-in-666 provided sample. the present figure prove prosecution did not one-in-1400 genetic compositions percentage Americans whose of African PM/DQ profile of comparable Alpha the box-

could be with states, sample. prosecution, as spring Nor did the the dissent from the scene revealed the that the blood recovered “assert[] Rather, ‘4,4’DQ-Alpha genotype.” A.2d at 678. Post DNA prosecution used the evidence demonstrate could not be excluded as donor the mixed-blood defendant sample his com and that one-in-1400 African Americans shared posite genotype. case, Cooper

On the State’s Ms. testified: using four, if based Now, rule, four, Prosecutor: use you upon your product percentage do and did as indicated with a what you calculation you polymarker, with? come up having have For African-Americans we indicated types polymarker Cooper: having four is four, an individual number DQ Alpha approximately type, in1 1400 in African-Americans. can thousand three Prosecutor: Let’s mark this down bottom. You excuse one having characteristics, African-Americans from these hundred ninety-nine that correct? *62 just Again, giving these numbers are an idea how rare or Cooper: you common, given how these different occur in a And if have a types random population. you of the chances 1 of are at least those population approximately people, people would have those polymarker DQ particular Alpha type. described, So the one-in-1400 evidence was relevant to show that relatively composite genotype defendant’s rare could not be ex- PM/DQ Alpha cluded as a to tests contributor the box- cross-examination, spring sample. moreover, On Cooper Ms. tes- DQ 4,4, tified specific Alpha that defendant’s of marker which percent occurred in population, seventeen constituted mil- people. lions of addition,

In Cooper Ms. about testified statistics that did not DQ Harvey’s Alpha include multiplying results. She stated that frequency Harvey’s calculations of of each PM loci showed approximately African one-in-170 Americans shared Har- LDLR, GYPA, vey’s HBGG, D7S8, genotype at the and GC loci. argues prosecution Defendant now pre- that the should have sented a ratio of the polymarker genotypes individuals whose DQ would match Alpha genotype defendant’s and whose was 2,2; 2,4; 4,4. ratio, defendant, either or according That to approximately testimony one-in-666. no Defense counsel adduced support at proceeding of that ratio trial. It is too late in the for defendant to that the presented insist State should have statistical evidence that helpful defendant now believes would have been trial. addition, court, pursuant we note that the trial to defense request, jury

counsel’s instructed the that statistical evidence does jury obligation relieve the of its to determine ultimate question guilt. Specifically, trial court stated: Now, heard from DNA from you both the State and the testimony experts, percentages. Defense. Some of the in terms testimony you expressed again,

You must determine whether the has each State, element proven every charges [sic] of the these a reasonable and no couched in beyond doubt, testimony percentages obligation terms of or can relieve probabilities make you your that determination. trial, At genetics- derived State its statistical evidence from population databases submitted the trial court at Rule 104 compiled the databases were

hearing. Dr. testified Word and a' fifty African Americans study of own from Cellmark’s Systems, was derived which by Roche Molecular created database She further African Americans. study of 100 a Roche from “essentially databases were polymarker explained that Cellmark’s *63 laboratories prominent forensic those used other the same” as to the use of the country. Dr. also testified Word around six- composite frequency for defendant’s to derive a product rule genotype. loci Shaler, expert, Dr. did hearing, the defense’s Rule 104

At the Instead, he accuracy databases. of Cellmark’s not contest Although the calculations. in statistical on them his own relied databases, that the it contends not criticize the defense still does enough an large to be databases were population State’s 291, at 682. Post at 699 A.2d sampling population. accurate addition, sought to introduce evidence never In the defense the mathematical soundness general acceptance or disputing the appeal, the defense does not Even on this product of the rule. Indeed, the defense states challenge product of the rule. the use absolutely valid.” product rule is “everyone agrees that the that however, dissent, the trial court erred maintains reliability of the admissibility hearing on the failing to hold an 293, particular, In 699 A.2d at 682. product rule. Post at independence argues never established dissent State 681, tested, 290, use of 699 A.2d at and that the post loci at of the 286, 290, erroneous, post at 699 rule product “unmodified” 679, 681. A .2d record, particularly unper arguments are the dissent’s

On this First, used that statistical databases publications reveal suasive. loci are often con DQ Alpha for and PM by other laboratories See, Kwang Man e.g., groups of blood donors. structed with small Budowle, Population Data on the PCR- Bruce “Korean &Woo HBGG, D758, Gc, HLA-DQA1 LDLR, GYPA, Based Loci (1995) (obtaining from 116 D1S80,” blood 40 Forensic Sci. 645 J.

195 individuals); Hayes Maya unrelated Korean Jeanne M. et al. & Freund, Population “Arab Data on the loci: HLA PCR-Based LDLR, GYPA, HBGG, D758, DQA1, D1S80,” Gc and 40 J. Foren (1995) (collecting ninety-four samples sic Sci. 888 blood from Arabs); 312, Pope, supra, unrelated see also 220 Ill.Dec. at (finding N.E.2d at 1324 polymarker “[b]ecause the PCR systems allele, may rely are two allele or FBI three on Thus, smaller database. the PCR Caucasian database contains individuals”). only 145

Second, underlying the trial court found that the databas light finding, questions regarding es were reliable. of that evidence, go weight size of a database to the not its Adams, admissibility. People Mich.App. See v. (1992) that, (holding expert testimony

N.W.2d in face of valid, questions concerning that database was size of database and weight, statistical conclusions drawn from it went to not admissi evidence), bility, part grounds, on other 441 Mich. modified (1993); Copeland, 497 N.W. 2d 182 State v. 130 Was h .2d *64 (1996) (holding questions regarding 922 P.2d 1320-21 population weight size of FBI’s matter of databases was once principle frequency calculations could be made from an adequate generally accepted). database was determined be appeal, challenge on Even the defense does not the size of Fishback, supra, Cellmark’s databases. See 851 P.2d at 893 uncontradieted). (admissibility established because evidence The dissent’s contention that the trial court on its own motion independent hearing an should have conducted Rule 104 on the product product rule also is without merit. The rule assumes that allele) (i.e., multiplied each of the events the matches at each has independently occurred of one another. The State’s witnesses pretrial hearing population testified at the and at trial that the frequencies genes polymarker DQ of the examined in the Alpha requirement. gene tests Each from a satisfied derives part on a located different of the chromosome. Defendant never challenged pretrial hearing, independence of the loci. At the 196 product rule as State of the the same version

Dr. Shaler used Furthermore, testified that figures. he compute his statistical Report, also FBI inherited.” See “independently loci were those (“The for the genotype frequencies of the distribution supra, at 53 [Hardy- (as HLA-DQa) meet HWE as PM loci well various for association is little evidence Weinberg expectations], and there D1S80) (for loci, HLA-DQa, and for loci the PM alleles across American, Caucasian, Hispanic, and southeastern African our The data demon Hispanic population databases. southwestern frequency can multiple profile of a locus that valid estimates strate using product rule .identity testing purposes for be derived independence.”). assumption under prod previously considered whether Although have not we admissible, acceptance so as to be general uct rule has sufficient accepted DNA Appellate Division decisions two recent Mar using product rule. See calculated evidence statistical cus, (finding 221 that “it is N.J.Super. at 683 A.2d supra, 294 hearing that the use Frye of the than at the time even clearer now generally accepted in the analysis is product rule in DNA 284-85, Dishon, supra, N.J.Super. at community”); scientific product rule to calculate (holding that use of A.2d 1074 populations is and Black frequency of occurrence Caucasian concerning ethnic substructures scientifically and that debate valid evidence). admissibility, of addi weight, rather than went to tion, product rule as scienti jurisdictions accept the many other Fishback, See, at 893-94 e.g., supra, 851 P.2d fically reliable. by applying product rule were done (holding that calculations community); Clark v. accepted in scientific generally relevant “product State, (reasoning that (Fla.App.1996) 679 So.2d fact and appropriate as a matter of scientific calculations are rule 315-16, N.E.2d at 1327-28 law”); Pope, supra, 220 Ill.Dec. accepted in scienti generally (holding product that use of rule was *65 604, Chandler, Mich.App. 536 211 community); People v. fic (1995) 799, (holding “product rule method of N.W.2d 803 accepted in the relevant generally is now DNA statistical evidence Kinder, 313, 317 community”); v. 942 S.W.2d State scientific (Mo.1996) (finding product generally accepted in rule was (conclud community); Copeland, supra, scientific 922 P.2d at 1319 ing product establishing proba that “use of the rule statistical genetic profile frequency population of a in the human bilities generally accepted community within the relevant scientific and matter”). significant dispute longer that a no exists in this foregoing rely Report All of the decisions on the 1996 and NRC Report, product the FBI both of which concluded that the rule appropriate calculating frequency probabilities. for See FBI (“These supra, examples Report, at 50-51 demonstrate that the product provide use of the rule would a valid estimate of a multiple frequency purposes.”); Report, loci for forensic NRC (“In supra, general, profile frequency at 5 the calculation of rule.”). product should be made with the dissent, however, necessary asserts that a remand is be product by cause the rule used and the State defendant was 294, 680-681, 287-291, “unmodified.” Post at 699 A.2d at 683. Specifically, the dissent notes that the NRC has recommended a rule, adjustment product “factor-of-ten” to the a modification of 287, product employed party. rule not here either Post at adjustment product 699 A.2d at 680. That to the rule can account Report, supra, frequencies. for uncertainties estimated NRC Thus, example, probability for of a “[i]f 33-34. the calculated 1/(100 suspect random match DNA is between evidence million), say very we can with confidence that the correct value is 1/(10million) 1/(1 billion).” likely between Id. at 34. raising questions

The dissent cites out-of-state decisions about population substructuring parties and the failure of the to use the 287-291, “ceiling principle.” (citing, Post at 699 A .2d at 680-681 (1996) Johnson, e.g., (finding v. State 186 Ariz. P.2d product ceiling principle); rule use of admissible with United Porter, (same); (D.C.App.1992) States v. 618 A.2d Com Lanigan, monwealth v. 413 Mass. 596 N.E.2d 314-16 *66 however, (1992) (same)). dispelled the report, In its 1996 NRC many of those concerns. report, Technology in its DNA in Forensic the NRC (1992), reliability questioned population the of sub-

Science 10-12 structuring: of rule on the of absence of The the validity multiplication depends assumption of substructure. substructure violates the statis- Population assumption population groups with of alleles. In a that contains each tical independence population genotype in a can different allele the of one allele frequencies, presence person’s genotype. For alter the statistical of the other alleles in the example, expectation among has one allele that is common Italians is more be of who likely person additional alleles that are common Italian descent and is thus more likely cany genotype higher among than The true is thus would be Italians. frequency applying using average the rule the by multiplication [product] frequency predicted underlying of

in the entire the use the population____The key question multiplica- significant for the loci tion whether actual have substructure i.e., populations rule— among typing debate used for forensic considerable population provoked —has signifi- geneticists. concern about the Some have serious possibility expressed cant substructure. substructuring, report To for the 1992 recommended the account celling principle frequency to calculate statistics. The use of the ceiling principle degree popula assumes the existence of some generates population tion more conservative substructure Marcus, product supra, 294 frequency statistics than the rule. however, N.J.Super. report, 221. In its 1996 688 A.2d ceiling principle “concluded that use of the overstates the NRC calculating population population effect of substructure matching frequencies print patterns of a combination of DNA Ibid.; unnecessary.” consequently purposes its use for forensic Report, supra, NRC at 35. community generally conclude that the scientific

We party accepts product rule. Whether a uses a “factor-of-ten” recommends, adjustment “ceiling principle,” or or as the NRC adjustment subject may legitimate no be a of scientific debate. Indeed, FBI, NRC, specific unlike the does not recommend adjustment Report, supra, FBI product to the rule. at 50-52. however, acceptance, require consen General does not scientific agree Appellate reasoning in Marcus: sus. We with the Division’s jury] [ ] [to State evidence calculat- may present population frequencies ceiling use of or rule, ed other method that has a any product principle, legitimate conflicting scientific basis. The defendant remains free to present regarding calculations. A opinion testimony expert population frequency point agreement among be reached where there is such ultimately may widespread regarding calculating in the field method of experts proper population frequen- *67 generated methodology cies that statistics should be to the presented jury. However, until such a scientific consensus is this remains a established, subject legitimate for at trial. expert testimony [Marcus, 221.] 294 at 683 A.2d 288, supra, N.J.Super.

Thus, regarding the dissent’s concerns the use of the “unmodi- product weight, admissibility. fied” rule concern its not its See Shea, supra, F.Supp. (finding adjustments at 957 343 that whether product suggested Report sufficiently to in rule 1996 NRC were weight, admissibility). Notably, conservative was issue of rule, challenge product defense did not the unmodified but rather analysis. used it in its statistical own Moreover, application polymarker of the “factor-of-ten” to the necessarily help results does not defendant’s dissent case. The that, many claims based on the number as State’s one-in-170 “as people may one seventeen share the DNA characteristics of the blood found at the scene.” Post at at A.2d 680. The “factor-of-ten,” however, limit in is confidence both directions. Thus, number, using many the one-in-170 as as one-in-1700 people may hundred also share the DNA characteristics of the blood found at the scene.

As one court has stated: There are doubtless formulas and which use ... to arrive many principles experts their ultimate The determination of which or factors, formulas, opinions. singly conjunction calculations are either or in with each to form other, necessary, knowledge judgment again an is within the and, expert opinion expert, subject which can be examined the cross-examination or by approached bringing forward other witnesses. expert (Ind.1993), [Jenkins v. State, denied, 627 N.E.2d cert. 513 U.S. (1994).] 130 L.Ed.2d21

S.Ct. ample opportunity present jury Defendant had at trial to fact, interpretation with a statistical of the DNA test results. that, explained associating Dr. Shaler his belief without alleles and taking possible box-spring into account all donors to the second people have contributed a

sample, approximately one-in-100 could figure than composite genotype, a more favorable non-excludable propounds. figure that defendant now Defendant the one-in-666 evidence, challenge the statistical to opportunity had the State’s evidence, argue jury. conclude present his own and to We jury judge permitting err in to evaluate that the trial did not the State’s statistical evidence. reading attributes

Our of the record reveals dissent greater significance evidence than the evidence to the statistical at trial. did not belabor the statistical received The summations summation, argued: evidence. On defense counsel percentage that out as a result of this I believe is one out test, came eventually of 400 and there was another one out of 170. number, jury part, its invited the to deliberate based on For State calculation, if it Dr. Shaler’s one-in-100 found calculation be more credible: figures that in a have,

Prosecutor: Remember we one hundred and seventy, *68 one in fourteen hundred. suggest If Evaluate them. want to use I should use the one them, you you figure given fourteen or if use the Dr. one in a hundred, choose, Shaler, you hundred. Exclude ninety-nine percent. Further, jury the trial court instructed the that it was not bound by any expert opinion, assign weight it could it whatever evidence, appropriate expert testimony deemed to the and that percentages probabilities couched in terms of or could not reheve proof. weight of its burden of The court left the of the State jury. belatedly statistical evidence to the That defendant has thought present of an alternative manner which to statistical concerning DQ Alpha evidence results does not constitute reversible error.

- -B objection Likewise without merit is defendant’s to the through experts of the statistical evidence who admission State’s indicated, previously were not statisticians. As defendant’s own Shaler, databases or expert, Dr. did not take issue with Cellmark’s its mathematical formula.

Moreover, testify as an competency of a witness to trial the sound discretion of the expert is an issue remitted to of that Absent a clear abuse supra court. Part IV.B.1. See discretion, not interfere with the exercise appellate an court will Inc., Motors, Henningsen v. 32 N.J. that discretion. Bloomfield (1960). say cannot that the trial court’s 161 A.2d 69 We testimony pretrial hearing and at the decision to allow Dr. Word’s frequency genetic testimony regarding at trial Cooper’s Ms. an of discretion. population markers in the abuse

- -C objection defendant’s to the admis Also without merit is it on the basis that was statistical evidence sion of State’s telling jury “confidence intervals” or introduced without analysis. support “margins of error” associated with statistical to its brief a letter from argument, the defense attaches of that Emory Feingold, professor at Univer Dr. Eleanor a biostatistieal data used to sity. Feingold’s letter asserts that the Cellmark Dr. polymarker test inclusion on the calculate defendant’s number for one-in-297, at a 95% range one-in-122 and has a of between confidence level. 2:5-4(a), argues that the letter from the State

Pursuant to Rule concerning confidence Feingold appendix in defendant’s Professor along from the record with should be stricken intervals relying The State brief on the letter. portions of defendant’s appeal. on material is outside the record contends such trial to confidence that Dr. alluded at defense counters Shaler simply an Feingold’s letter is “illustration and that Dr. intervals *69 understanding of fair importance confidence intervals to a of statistical evidence.” appellate An grant the motion to strike.

We State’s errors, to the court, generally itself reviewing trial confines when County Paramus, Bergen Borough record. See v. 79 N.J. (1979) (holding 309-10 n. 399 A.2d appellant’s appendix, which contained numerous documents not offered into evidence, clearly 2:5-4); violated R. Ambassador Ins. Co. v. Montes, 477, 481-82, (1978) 76 N.J. (reasoning 388 A.2d 603 Court was limited to policy review of insurance introduced into company evidence and that supplement insurance could not record appeal). previously on As explained, appellate may an court judicial review opinions, including scientific literature and those published trial, after technique general to determine whether a is ly accepted. however, practice, That does not constitute an invita parties supplement tion for the to the record with additional expert testimony. place expert The testimony introduce is at trial, expert subject cross-examination, where the oppos ing party contradictory expert testimony, can introduce and the trial court can experts’ credibility. assess the

Moreover, letter, even if we to accept Feingold’s were Dr. it concerning would not alter our conclusions the statistical evidence. previously, level, As stated proper the issue of the confidence if any, weight, is one of admissibility. supra See Part VI.A. ample opportunity Defendant had present such evidence at trial.

- -D challenges Defendant the results of Cellmark’s DNA tests because the tests assume the sample source of the mixed-blood was an African American. Defendant states that Cellmark’s assumption contrary was unwarranted and presumption to the argues innocence. He that his genotype gene for the D7S8 is less (45%) (50%). common in African Americans than Caucasians premise, From that analyzing he concludes samples the blood assumption on the suspect that the was black made the inclusion appear ratio incriminating. more allegation is without merit. The expressed statistics were

in terms of population the African-American because defendant *70 Significantly, was African-American. considerable other evidence perpetrator Sehnaps indicated that the Afri- murder was An can-American. African-American hair was recovered at the typing presence scene. Non-DNA blood revealed the of the CA enzyme, II present only which is in African Americans. We justifies premise conclude that that perpe- evidence that the Legitimate trator was an African American. reasons existed for expressing percentage figures in terms of the African-Ameri- sum, population. can the DNA tests were not tainted racism. -

-VII argument next consider defendant’s We the trial failing grant prosecution court erred in a mistrial when a suspect passed witness polygraph testified another had a examination.

- A- Early investigation, police Stohwasser, in the considered Peter neighbor Sehnaps, possible suspect. as a Defendant contended police investigate at trial that the thoroughly failed Stohwasser prematurely suspect. dismissed him as a end, Philip Beesley, To that defense counsel cross-examined Jersey forensic Beesley scientist for the New State Police. ac- knowledged during suspect, the time when Stohwasser was a Beesley any comparison did not conduct studies on Stoh- wasser’s blood that he later ran on defendant’s blood. Nor did Beesley any samples receive blood from Stohwasser.

Following Beesley’s testimony, Investigator explained O’Brien why police suspect. had dismissed as a Pursuant Stohwasser warrant, police apartment to a search searched Stohwasser’s analysis. Investigating police seized various items for bloodstain eventually however, suspect, eliminated Stohwasser as a for nu- First, merous reasons. the blood stains on the seized items did Second, type not match the blood of the victim. Stohwasser did possess any not print footwear that matched the sneaker left at Finally, the crime scene. is Caucasian and could Stohwasser “Negroid have been the source hair” found at the crime *71 scene. redirect,

On the State elicited from O’Brien that Stohwasser had passed polygraph taken and point, a test. At that defense counsel objected. objection The trial court sustained the and informed the jury “disregard question to the last and the last answer.” following day,

The the defense moved for a mistrial on the basis polygraph of the unsuccessfully reference. The defense argued that mention of polygraph an police raised inference that the had not eliminated suspect defendant as a because either he refused to take a lie detector test or he took the test and failed. charge

At the polygraph re-emerged. conference the issue The reprimanded trial court proposed jury the State and a corrective instruction: I thinking Now, instruction on prepared own, about this proposed my issue, jury polygraph

which I will tell the that a eventually examination is not admissible legitimate investigatory in it evidence. While be a and I may tool, would have told jury thought [sic] or suggest instruction I my that proposed was to simply designed bring that the was not to out the truth of the question but result, simply to show eliminated him as a why police suspect. jury I would instruction will tell the my are to no proposed draw they also — against adverse inference Mr. [sic] because when the Stonehauser Harvey, request Mr. was in made, not That was Harvey custody. my proposal. You want me not to raise it because of concern of I your possible impact, won’t do it. certainly saying All I am feeling is that view of notes on this issue and my my of the my case, so to I am [sic] satisfied tht speak, and answer are question simply something producing prejudice not to the defendant capable any whatsoever. Defendant declined the instruction.

- -B argues Defendant now polygraph reference to the suspect results of an earlier should have resulted a mistrial right Fifth to silence and it violated his Amendment because jury. eyes him in the prejudiced deny a grant or mistrial is entrusted decision DiRienzo, court, State 58 N.J. discretion of the trial v. the sound 360, 383, (1969), grant only to A.2d 99 should a mistrial which justice. Rechtschaffer, 70 prevent an obvious failure of State v. (1976). 395, 406, appellate An court should A.2d 362 N.J. court, position which in the best defer to the decision of the trial prejudicial State v. gauge allegedly the effect of evidence. (1984). Winter, Thus, appellate an 96 N.J. 477 A.2d 323 ruling a motion for court will not disturb a trial court’s on mistrial, an in a manifest absent abuse of discretion results Here, DiRienzo, injustice. supra, 53 N.J. at 251 A.2d 99. directly either to polygraph reference to the test did refer witness, polygraph to the results of testifying defendant or a but suspect. an unindicted context, Circuit has found the reference a similar the Ninth polygraph suspect harmless

to the test of another to constitute (9th Candoli, 870 505 See United v. F.2d error. States Cir.1989) (finding references that district court’s refusal to strike it not polygraph prejudicial did to examination was because Hall, verdict); materially v. F.2d affect United States Cir.1986) (10th two (testimony that had failed defendant more explain police’s failure to conduct polygraphs submitted to Moss, investigation). v. complete But see State 180 W.Va. (1988) testimony of that State (holding that admission 376 S.E.2d against he suc suspect indictment earlier because had dismissed cessfully prosecutor passed polygraph was reversible error when summation). direct in repeatedly polygraph referred to on record, suspect’s poly- to an unindicted On this the reference reference graph does reversible error. The results not constitute response on of the to attack the conduct came defendant’s Further, the immediate- police’s investigation. murder trial court jury to objection and the ly the defendant’s instructed sustained State, disregard polygraph to the results. reference moreover, presented substantial explaining why evidence it elimi- nated suspect. Any prejudice Stohwasser as a to defendant was minimal. -

-VIII argues Defendant the trial court committed reversible by inadequately error protecting jury prejudicial from pre- and midtrial publicity. Specifically, alleges defendant (1) trial court in refusing: erred to dismiss pool the entire qualified jurors (2) being as pretrial publicity; tainted to question individually jurors regarding exposure press their to (3) coverage trial; question jurors on they whether had exposed publicity been contemporaneous murder trial of Johnson; (4) State v. sequester jury during penalty-phase deliberations.

- A- phase jury The first selection lasted February from 2 to March potential juror 1994. Each filled out an eleven-page questionnaire. specific On pretrial publicity, issue of questionnaire contained questions: five relevant you 37. Have heard anything seen on television or anything on the radio about this case?

_Yes _No. you 38. anything Have read about this case in _Yes _No. newspaper? 39. has judge Other than you what the today, said to anyone you else talked to about this case? _Yes _No. you 40. Have anybody heard discussing this case people it, or the involved today either here or at *73 _Yes _No. anytime previously? you 41. Do anything know about this case other you than what have in today? heard court —Yes _No. individually concerning juror questioned each The trial court defense and the also afforded both the The court their answers. juror jurors. one question the Not opportunities to prosecution coverage. press exposure prejudicial was excused because handling publicity object court’s of the to the Defendant did phase, February-March 1994 selection issue. At the close defendant, qualified trial court objection from and without jurors. forty-seven prosecu- to examine the adjournment

An to enable defendant jury-selection delayed resumption of the tion’s DNA evidence 18,1994. court Using process, same process until October juror excused on the jurors. Again, no qualified six more publicity. exposure basis 1994, during jurors selected who had been October

On court The trial February-March phase returned to court. interim, anything whether, they about during the had heard asked impair their proposed evidence would parties or the either juror Only prospective indicated ability impartially. one to serve that he had the ease. He told the court had read about that he previously and that defendant that this case was a retrial learned juror The trial court excused to death. had been sentenced 28, at time the jurors October which other to return and told the jury pool. remaining dire with the court resumed voir 25, 1994, court of the counsel notified the defense On October newspaper articles that recently published of three existence defendant’s case. The articles mentioned defendant’s discussed previously-imposed death sentence. suppressed confession and the jurors inquired potential request, the court At defendant’s through knowledge From of the articles. October about their court, no specific questions from the response in October subject articles. had read the juror that he or she revealed February-March and on jurors selected about the Concerned courtroom present who had not been October 18 requested on October 28 that defense counsel since October *74 similarly question jurors individually. the court those The court Instead, request. questioned previously- denied the the court jurors group questioned individually selected as a and those jurors they newspaper who indicated were familiar with the addition, gave option articles. In the court defense counsel the of requesting peremptory challenges. additional jurors forty-seven previously qualified brought

When the were courtroom, any into the the court asked whether of them had “read, heard, overheard, anything or been told about this matter jurors whatsoever?” Twelve raised their hands. Of these twelve jurors, case, two had overheard discussions of the two had heard broadcasts, having radio seven admitted read about the case jurors newspaper. of the One who raised her hand had not heard about the but wanted case to inform court that she Ultimately, jurors knew sheriffs officer. all of twelve those were excused. light jurors of of they the number who had indicated that had exposed pretrial publicity,

been to defendant moved either to pool remaining, previously-qualified dismiss the entire of the jurors jurors. questioning or for individual of Defendant that, argued jurors’ denials, despite the a substantial likelihood remaining jurors exposed existed that the had to been the circulat- ing articles and broadcasts. motions, explaining

The trial court denied both ques- that the tioning effectively jurors. had identified potential tainted remaining jurors court importance reminded the avoiding coverage ongoing news obligation report exposure and of their to any coverage. qualified jurors such It then instructed 29, 1994, return on November for the commencement of the trial. replace jurors To excused on October the court contin- jury 2, 3, 4, 7, 9, 10, ued selection on November 1994. sessions, During individually questioned those the court each potential juror familiarity about his or her with defendant’s case. jurors potential any exposure None of the pretrial revealed publicity. By jury 15, 1994, the close of selection on November fifty jurors qualified. had been trial, 29,1994, morning day

On the the first November sequester jury defendant moved to or to strike the entire *75 panel and to process start the selection in- anew. Defendant morning formed the court that Ledger, editions of the Star Tribune, News and Home News carried articles on the court’s rulings. DNA Two of the sup- articles mentioned defendant’s pressed confession. The court denied the defendant’s motions for sequestration jury, agreed and to strike the but to ask all of the qualified jurors any anything whether of them had read about the ease. inquiry panel qualified jurors

The court’s to the of revealed that exposed press coverage. two had been to The court excused both jurors. panel Defendant renewed his motion to strike the sequester jury. Again, the new the court denied the motions. jury pool qualified

The was then from selected of venire persons. only eighteen twenty peremptory Defendant used of his challenges, mooting thus the court’s earlier offer to consider requests challenges. defense day for additional At the end 29, jury exposure on November the court instructed the to avoid any press coverage. to 1, 1994, trial, day

On December brought the third defendant to newspapers published the attention of the court that three had days later, juror new articles about the case. Five a informed the discussing court that he had heard coworker the case and that had he discovered that two of his eoworkers to were related juror. Thereafter, defendant. The court excused the the court sequestration. denied defendant’s motion for 13, 1994, Following defendant’s conviction on December began 15,1994. penalty phase court on December On Decem- 14, again sequestration ber defendant moved for of con- because tinuing publicity. The court denied that motion and defendant’s

request again question individually jurors that the court on exposure press coverage. their to the beginning day penalty At the phase, the second complained damaging defendant about three more articles in the morning newspapers. request court The declined defense jurors individually response interview about the articles. questions posed panel, juror to the entire no indicated that he or exposed press coverage. she had been

- -B The Sixth and Fourteenth Amendments to the United I, paragraph Jersey States Constitution and Article 10 of the New guarantee right impartial Constitution to a fair trial an Dowd, jury. 717, 722, 1639, 1642, Irvin v. 366 U.S. 81 S.Ct. (1961); I, supra, L.Ed.2d Koedatich 112 N.J. at 939; Williams, (1983) A .2d State v. 93 N.J. 459 A.2d 641 (Williams I). guarantee protects the defendant from sub *76 pre- Maxwell, stantial publicity. Sheppard and midtrial v. 384 333, 362-63, 1507, 1522-23, 600, U.S. 86 S.Ct. 16 L.Ed.2d 620 (1966); I, 60, supra, Williams 93 N.J. at 459 A.2d 641. In death- cases, penalty heightened duty the trial court has a preserve “to integrity jury danger of the prejudice and minimize the that I, adjudication process.” will infiltrate the supra, Williams 93 63, at N.J. 459 A.2d 641. ensuring jury impartiality

The means for in the face of pretrial publicity Yount, interrogation jury. is of the Patton v. 1025, 1038-39, 2885, 2892-93, 467 847, U.S. 104 S.Ct. 81 L.Ed.2d (1984); Jackson, 148, (1964), 858 State v. 43 N.J. 203 A.2d 1 cert. 982, Jersey, denied sub nom. Ravenell v. New 379 U.S. 85 S.Ct. 690, 13 (1965); 102, Gary, 111, L.Ed.2d 572 State v. N.J.Super. 229 (App.Div.1988). function, 550 A.2d performing 1259 trial possess juries courts protect considerable discretion. To from the pretrial publicity, particularly cases, taint of capital in courts extraordinary should potential “exercise care in the voir dire of jurors any juror excuse exposed [can] for cause who has been

211 prejudicial publicity, especially to sensational exposure where such repeated is patently and involves inadmissible evidence.” I, 68-69, supra, capital Williams 93 N.J. at 459 A.2d 641. Even defendants, however, jurors totally are not entitled to who are ignorant I, of the facts and issues of their cases. Koedatich 268, 939; supra, 1, 23, Sugar, N.J. at 548 A.2d v. State 84 N.J. (1980); 110, Gary, 417 A.2d 474 supra, N.J.Super. at 550 A.2d 1259. appellate reviewing proce standard for a voir dire whether, efforts, despite

dure is the trial court’s there still existed prejudice resulting a “realistic likelihood pretrial publici from I, ty.” supra, Williams 93 N.J. at 459 A.2d641. Preliminarily, appellate an distinguish court must “be atmosphere tween cases which the trial corrupted is so publicity prejudice may presumed, be cases which extensive, pretrial publicity, intrusive, making while is less publicity determinative issue the actual effect of the on the impartiality jury panel.” Biegenwald, v. State 106 N.J. (1987) II). (Biegenwald 524 A.2d 130 Our examination of the support presumption prejudice record does not to defendant. prejudice, a court inquiry When cannot assume prejudice determine the existence of realistic likelihood of totality whether under the of the circumstances the voir dire IV, impartial jury. Biegenwald resulted in a fair and supra, 126 22-23, making determination, at N.J. 594 A.2d 172. In an appellate appropriate court should show deference to trial credibility, judgment court’s assessment of “matters of and discre ordinarily tion appeal.” Gary, which should not disturbed on be 1259; supra, N.J.Super. A .2d see also State v. 55, 63-64, Singletary, (1979); Jackson, 80 N.J. 402 A.2d 203 *77 supra, 43 N.J. at 203 A.2d 1. by failing

We conclude that the trial court did not err qualified jury pool. strike the potential The court examined all jurors through questionnaires questioning. spe- and individual It

cifleally questioned jurors learning newspa- on of the October 25 per questioned collectively previously-qualified articles jurors. jurors prejudicial expo- The court excused who revealed Furthermore, press reports. sure to the court informed the jurors ongoing duty newspaper of their to avoid contact with articles and that a broadcasts. We conclude substantial likelihood coverage prejudiced remaining did not exist that media had jurors.

- -C reject argument alsoWe defendant’s that the trial court interrogating previously- committed reversible error qualified jurors publication newspaper after of each new series of circumstances, considering totality articles. After effectively jurors duty trial court informed the of their to remain impartial jurors panel. and removed tainted from the The collec questioning jurors. tive elicited admissions of taint from twelve balance, adequately responded On we conclude that the trial court problems posed by press coverage of the trial.

- - D alleges by failing Defendant also that the trial court erred specifically inquire jurors County about another Middlesex Johnson, prosecution, subject murder v. State which was also the press coverage during trial. defendant’s The Johnson case superficial bore similarities to defendant’s case it also murdering involved an African-American male accused of a white newspapers widely reported woman. Local Johnson’s statement they that “blacks should kill reproduce.” white women so can’t response case, to defendant’s concerns about the Johnson jury trial court penalty-phase collectively asked the it whether had reports “anything read about defendant’s case or else” that would impartiality. complains affect their Defendant trial court jurors specifically should have asked the about the Johnson case. disagree. We *78 express

Defendant did not concern over the case until Johnson 1994, 15, December the eve penalty of the commencement of the Furthermore, phase. request defendant not questioning did of the jurors guilt about the Johnson phase. ease before the Before deliberations, starting penalty-phase ju- the court asked the they rors had anything whether learned defendant about or heard impartiality else that could affect their in deciding defendant’s Although specifically sentence. the court not did mention John- son, inquiry the court broadened the to ascertain whether the jurors any prejudicial reports any had read from source outside the record. present Jasuilewicz,

The case differs from v. State N.J.Su per. denied, (App.Div.1985), 501 A.2d 583 103 N.J. certif. (1986), 511 A.2d 649 defendant where the killed mother his twenty-one trial, stabbing her times. At Jasuilewicz had relied on insanity. Jury began defense of selection the wake of news acquittal by insanity accounts of the Hinckley, reason of of John Reagan. who had shot President Ronald Concerned about taint verdict, Hinckley from repeatedly requested Jasuilewicz a voir concerning juror Hinckley dire the effect on publicity. each of the . court, however, Id at 501 A.2d 583. trial The refused request. Appellate defendant’s Division found that the trial interrogate Hinckley court’s publicity refusal about the consti tuted reversible error. Id. at 501A.2d 583. Jasuilewicz,

In the trial searching court failed not to ask questions, generally any but failed ask questions about the jurors’ potential exposure Hinckley contrast, to the case. Ibid. here, although the trial specifically court it did not mention the case, adequately jury interrogated exposure Johnson its about prosecution. to another murder Jasuilewicz,

Unlike who was concerned about the reaction of the jury insanity Hinckley, to the defense in defendant here did not voice a day concern over the Johnson ease until the before the Thus, beginning penalty phase. question the court did jurors guilt the Johnson phase. about case before the Further- case, court in

more, present unlike the trial court Jasuilewicz, responded to defendant’s concerns. -

- E *79 failure to alleges error in the trial court’s Defendant during penalty phase. Defen sequester jury, especially the jury sequestration should be to rule that dant also asks this Court mandatory capital in all cases. generally to the

Jury sequestration is a decision left N.J.Super. Moriarty, v. of the trial court. State discretion denied, 563, 569, (App.Div.1975), 68 N.J. A.2d 14 certif. (1975). places great on the practice The burden 343 A.2d 459 Accordingly, system jurors. courts use judicial and on individual 1:8-6(a). extraordinary R. are it circumstances. We surrounding trial was publicity that the defendant’s unconvinced discre pervasive prejudicial and that the trial court abused its so by denying defendant’s motion. tion

- - IX alleges prosecutorial mis- next various incidents of Defendant prosecutor: Specifically, argues defendant that the ex- conduct. summation; improperly questioned proper of ceeded the bounds analysis by asking questions an- expert on hair the State’s beyond scope inadmissible and of exami- swers which were court; indirectly by introduced nation as limited the trial and inflammatory evidence.

- A- prosecutor contends that the committed mis Defendant by urging jury apply product rule conduct in summation entirety to the of the State’s case. summation, defense counsel stressed that reasonable her identity Schnaps’s Irene murderer.

doubt still existed about the investigation by marred claimed that the initial Counsel shoddy evidence, police work including all of the State’s results, pool potential the DNA test could not narrow suspects below the thousands. prosecution

The countered in its summation that the evidence beyond established guilty reasonable doubt that defendant was Schnaps. prosecutor argued murder Irene to the jury: figure Use the rule ... and out in mind product your own the likelihood that one out of one hundred —it could be thousands —would have six and

person size a half [sic], shoe would have sneakers with the thread [sic] [sic] that size and match, wear Negroid blood stained at the it fact scene, hair pillow by multiply Negroid matched the hair found at match the from scene, Mr. exemplar the watch. Harvey, multiply by You have taken a started with in the world and you everybody circumstantial — narrowed that circumstantial you what available. These are the items that suggest were available at the This scene. is what the State used. I to you, they are more than sufficient to show a reasonable doubt Mr. you beyond Harvey committed this offense.

[********] *80 guesswork, This is not is not this this is fact. The a speculation, of probabilities having things, things, those all these are well a person minuscule, reason- beyond able and the that had doubt, characteristics, these whether be person blood, it hair, and size, shoe shoes watch is minuscule. That is Mr. person Harvey____ summation, Following objected the State’s defense counsel prosecutor’s probabilities the comment that the were “minuscule” evidence, all pieces together, the when taken allowed room argued for a prosecution reasonable doubt. Counsel that the “trying to determining assess mathematical standard” the Further, existence of reasonable doubt. requested counsel the jury court to instruct the that “reasonable doubt cannot come to [a] down or mathematical formula standard.” The court denied request. the challenges prosecutor’s

Defendant now the invitation for the jury to apply product totality the rule State’s Furthermore, alleges inviting evidence. jury defendant product to use the performance rule was akin to the of an improper prosecutor jury. demonstration before the

216 prosecutorial misconduct allegations of

We evaluate prosecutor. Prosecutors responsibilities of unique light of the vigor,” and United “with earnestness pursue their duties must 1, 1038, 1042, 1, 7, 105 L.Ed.2d 7 84 Young, S.Ct. v. 470 U.S. States 88, States, 78, 55 S.Ct. (1985) 295 U.S. Berger v. United (quoting (1935)), 1314, make a “forceful 629, 633, L.Ed. 1321 79 Ramseur, 123, 106 N.J. State v. of the State’s case.” presentation (1987). advocates, attorneys prosecuting As A.2d 188 524 v. leeway making a summation. State when enjoy considerable (1974); Dixon, supra, 125 45, 48, N.J. 319 A.2d 474 Perry, 65 N.J. 579, 641, Michaels, 266; N.J.Super. 264 v. A.2d State at 299, 642 A.2d 1372 aff'd, 136 N.J. (App.Div.1993), A .2d 489 (1994). not consti

Generally, prosecutorial misconduct does “so unless the conduct is deemed ground for reversal tute a Ramseur, a fair trial.” deprived it defendant of egregious that reviewing must A court 524 A.2d 188. supra, 106 N.J. responsiveness of degree tenor of the trial consider “the they improprieties when occurred.” and the court to both counsel (1991) (Marshall I). Marshall, 1, 153, A.2d 85 123 N.J. State v. a similar test: Supreme has articulated States Court The United the trial with prosecutor’s comments so infected “whether of due resulting conviction a denial as to make the unfairness 168, 181, 106 Wainwright, 477 U.S. S.Ct. process.” Darden v. (1986) (internal 2464, 2471, quotations omit L. 91 Ed.2d ted).

Here, product rule did not prosecutor’s reference to the more a rhetorical error. The comment was constitute reversible jury apply a mathematical than an invitation for device *81 allega- prosecutor responding to defendant’s The was formula. limit, pool enlarge, rather than the acted to tions that the evidence rule, product the By commenting on the possible suspects. of evidence, when considered argue that all of the tried to State guilt. collectively, pointed to defendant’s Furthermore, trial any per the court’s instructions cured occasions, prejudice. separate ceived On three the court instruct jury ed the that the comments of counsel were not evidence. Further, gave specific the court testimony a instruction that no terms, percentages couched mathematical such probabili as or ties, proof. could relieve the of its State burden of instruc These tions ensured that no prejudice confusion or from resulted the prosecutor’s product-rule Spann, supra, comment. See N.J. (1993) (stating appropriate 617 A.2d 247 that jury instruc juries cope tions can enable with complexities probabilistic of evidence).

- -B prosecutor’s Defendant next attacks the examination the hair-analysis expert, State’s Specifically, Theodore Mozer. defen- portions dant testimony contends of Mozer’s were both beyond permissible scope inadmissible the of the examination. objected Defense counsel when if Mozer testified that the match, of microscopically-compared characteristics hairs can “we probably determine that this hair ... person came from comparing sample which we’re to.” Defense contend- counsel testimony degree ed that a made with reasonable certainty. scientific testimony then State elicited from Mozer degree certainty to reasonable of scientific hair defendant’s compared “microscopically and physically” “Negroid” hair recovered from the crime scene. argues questions

Defendant that certain his to which successfully objected counsel invited answers that exceeded the scope testimony, extent represented by of the witness’s as prosecutor. Consequently, pros defendant maintains that the improperly impression ecution expert created had never made mistake and that the hair came from defendant. disagree. objec We The trial promptly court sustained defense questions. tions to reading Our of the record leads us to *82 questions do not warrant reversal prosecutor’s that the conclude of defendant’s conviction.

- -C is that allegation prosecutorial misconduct Defendant’s third of injected specter the case the of sexual improperly into State complains about the introduction Specifically, defendant assault. testimony regarding sent to the diagram and items of a schematic Laboratory. Police State trial, diagram a schematic prepared

Before the State explain items of Schnaps’s apartment to where it found certain approximately sixty Of individual of evidence evidence. items diagram. eight in the apartment, retrieved from the were featured eight diagram legend describing At the bottom of the was items, apartment. indicating their location in the diagram challenges the in the of the loca-

Defendant inclusion pair of her Defense “panties” tion of the victim’s and a shorts. objected being highlighted diagram, counsel to those items in the and to arguing they had no value that reference evidential potentially prejudicial. them was shorts, objection, noting

The trial overruled the that the court cloth, terry designed outerwear. which were made of were for potential Consequently, prejudice. to them devoid of reference panties relevant the State’s The court decided that were body allegation Schnaps’s traces had been washed to remove limiting accepted counsel the court’s offer of a of blood. Defense Subsequently, investigator to the instruction. State testified Schnaps’s apartment, including long list of removed evidence from jury: panties. The trial court then instructed gentlemen, goes [the and the investi- further, Ladies before heard prosecutor] you gator indicate what he retained from the and I know he referred to you apartment undergarments. I have but other allowed -that testimony panties perhaps charge against that there is no Mr. sexual Harvey understand any type please that. assault. Please understand Thereafter, investigator items described the sent 20,1985. Laboratory State Police on June Two of the items were pubic victim,” “oral, “a vaginal, hair control taken from *83 and autopsy.” anal swabs taken from victim at the the time of Hence, object Defense counsel did not to the description. we plain treat the reference to them of as a matter error. investigator began The then read to from the list of items that police laboratory “pubic were later sent to the including hair ” sample conference, the from sus... At a sidebar defense counsel objected pubic mention of agreed defendant’s hairs. The court prosecutor and instructed the the investigator could not refer to the of pubic submission defendant’s hair.

Defendant now the maintains introduction of sche diagram featuring matic panties, the location the victim’s the vaginal mention that and police anal swabs were sent hair, laboratory, pubic reference to infect combined to proceedings prejudicial with inferences of sexual assault. The contention without merit. instructions,

Through special trial court that the ensured jury any allegations understood that the case not did include sexual assault. The court abuse admitting did not its discretion in diagram. prose the schematic That evidence was relevant to the theory that wiped cution’s defendant had blood from victim’s body damp with a towel. do we Nor find that State’s investigator specter raised the of sexual assault. The court properly prevented investigator testifying sample from pubic police laboratory. defendant’s hair to the was sent Like wise, plain vaginal we do not find error in the reference to the analysis police anal laboratory. swabs sent for to the See State v. (“Trial 270, 277, Harper, N.J.Super. 319 (App.Div.) A.2d 771 induced, encouraged, acquiesced errors which were or in or con ordinarily sented to defense counsel are not a basis for reversal denied, (1974). appeal”), on 65 N.J. 325 A.2d 708 certif. trial court’s instruction that was not of sexual defendant accused any assault dispelled possible was sufficient to have taint which Moreover, unlike the that reference. could have resulted from dissent, independent trial events to be these we do view I, Harvey supra, 121 N.J. at directive in violative of our should not include the informa A.2d that references at retrial pubic hair. Post found at the crime scene was tion that the hair hair characterized the A.2d at 693. The State never apartment pubic Schnaps’s as a hair. found

- -X police illegally seized the Seiko argues that Defendant trunk of car. He asserts further LaSalle watch found his right to four times on October police that the violated his silence 28, 1985, police methodology.” Those by “unrelenting[ly] coercive right silence, alleges, he coerced him into his violations of burglaries and a sexual admitting that he committed various *84 Township. argues He that the “coerced” assault in Windsor West to search car police “forced” him to consent of his admissions apartment accordingly Jamesburg on October 29. Defendant argues suppressed the the trial court should have watch.

- A- hearing, suppression At the trial court concluded pretrial had to the search and the watch that defendant consented acknowledged trial. could into at The court be admitted evidence arrest, 28, was an “exhaust- the date of defendant’s October Nevertheless, day court concluded that ing” for defendant. any and that police employ did not coercive tactics defendant voluntarily sought out to confess to the Detective Swanhart West Likewise, the court that defendant volun- Windsor crimes. held tarily signed the consent-to-search form. The voluntariness noted, consent, by fact court was confirmed defendant’s any incriminating in his that he not believe that evidence was did car.

221 - -B I, 417, Harvey supra, 483, In 121 N.J. at 581 A.2d defendant sought suppress only Schnaps to his 30 confession October to the Accordingly, allega murder. we to address declined defendant’s right tions that his to silence violated on 28. was October Ibid. We now conclude that defendant’s concerns are without merit. general, police “scrupulously must honor” a 96, suspect’s right 104, to Michigan Mosley, silence. v. 423 U.S. 326, 321, 313, (1975); Arizona, 96 46 S.Ct. L.Ed.2d v. 321 Miranda 436, 473-74, 1602, 1627-28, 694, 384 U.S. 86 S.Ct. 16 L.Ed.2d 723 (1966); Johnson, 263, 282, (1990); v. State 120 834 N.J. 576 A.2d 260-61, Hartley, supra, “Scrupulously 103 N.J. at 511 A.2d 80. honoring” right requires a defendant’s silence to a cessation of questioning once the asserts defendant his Fifth Amendment Johnson, 282, (“Where right. supra, 120 576 N.J. at A.2d 834 right invocation of the to remain interrup silent followed no questioning, tion in interrogation where the if continues as nothing happened, honored.”); right scrupulously had is not 45, (1988) I) Bey, 68-70, State v. 112 (Bey N.J. 548 A.2d 846 (holding rights scrupulously police defendant’s honored when ignored attempt officers his ques remain silent and continued (“[a]uthori tioning); Hartley, supra, 103 511 N.J. A.2d 80 interrogation suspect ties request”....). must cease on his If police are asserting right unsure whether a defendant is his silence, they stop interrogation must either or completely “ask only questions narrowly determining directed whether defen Johnson, willing dant supra, to continue.” 120 N.J. at 834; see Wright, A.2d also State v. n. N.J. (1984). A .2d1265 *85 silence,

Once defendant right invokes his or her to interrogation police can resume if administer fresh set 267, warnings. supra, of Miranda Hartley, 103 511 N.J. at A.2d 80; Adams, 438, 445, accord v. State 127 N.J. A.2d 1097 605 (1992); Fuller, 75, 83, (1990); State v. 118 N.J. 570 A.2d 429 State

222 109, 100, N.J.Super. (App.Div.1991), A.2d 536 Mujahid, 599

v. (1992). rule, denied, 561, That 606 A.2d 372 127 N.J. certif. dialogue however, initiates a about apply if the defendant does not Fuller, 85, supra, N.J. at 570 A.2d 429. the crime.

- -C on interrogated different times October Police defendant three When he to the West crimes. 28 before confessed Windsor a.m., they brought 8:30 informed defendant to the station at police rights, signed and he a waiver. Defendant him of his Miranda began interrogation at 3:00 at p.m. lunch around first ate p.m. 3:37 session, interrogation again police this read defen-

At first rights, rights form. The interro- signed his and he another dant hour, which defendant gation point a little over an at lasted “to think.” The interro- cry to and asked for a half-hour started ceased, to his cell. gation police returned defendant think,”

By invoking requesting to defendant was not “time 138-40, right Bey, to See v. 112 N.J. his silence. State II) (1988) request “lay (Bey (holding to A.2d 887 defendant’s down happened” did invocation of and think about what not constitute every questioning right compels to as “[n]ot silence break warnings”). Although of the Miranda renewed administration granted requested respite, they were police defendant formally resuming to him before their required re-Mirandize interrogation.

Questioning p.m. police resumed at 4:50 with “remind rights. lasted ing” defendant of his That session until defendant cry speak began requested to with his mother-in-law. That right to an invocation of defendant’s request tantamount I, 418-22, A.2d Harvey supra, 121 N.J. at we silence. when, right on that defendant invoked his to silence October held requested speak his Id. 581 A.2d he with father. 483.

223 was emotionally upset by Defendant p.m. the end of the 4:50 session family and wanted the advice of a trusted member. The police interrogation properly Harvey ended the and allowed to meet with Pearl Thomas. began interrogation police

When the next at p.m., 7:30 did Miranda not readminister rights. That omission violated the Hartley. bright-line rule of right As defendant had his invoked to session, end p.m. silence at the of the 4:50 police failed to scrupulously right Hence, honor his to silence. we concluded that “[a]ny prior statements made warnings to the new must be I, Harvey supra, 121 N.J. at suppressed.” A.2d 483. Defendant, however, no incriminating made statements during p.m. the 7:30 again session. defendant When became upset, police stopped questioning him and returned to his cell p.m. investigators’ at around 8:00 The to failure honor therefore, scrupulously rights, defendant’s prejudice did not defen dant. p.m., Harvey

At 8:15 speak initiated efforts to Detec with I, Harvey supra, tive alone. Swanhart As we concluded in N.J. at A.2d was police there “no evidence of coercion Furthermore, or misconduct” on 28. October defendant subjected was interrogations to designed “extended to wear will.” Ibid. Investigators provided down [his] with defendant lunch, dinner, cigarettes, chewing police tobacco. The also accommodated defendant’s wish have brought his mother-in-law jail speak to the with him. voluntary dialogue

Defendant’s reinitiation with Detec police tive relieved duty Swanhart to readminister Fuller, Miranda warnings. supra, 118 N.J. 84-85, 570 A.2d Nonetheless, warnings 429. Swanhart administered those before recording defendant’s confession. subjected any police

Neither was defendant coercion on October 29. The record during is devoid evidence of coercion the ear tour of West Windsor or afterward. form based on information consent-to-search voluntary confession. Defendant

provided defendant in his *87 search, they searching to what were police what the wanted knew Nonetheless, for, right the to refuse consent. and that he had voluntarily knowingly signed the consent-to-search defendant consent, police not the did need a form. Because of defendant’s Bustamonte, 218, 219, 93 v. 412 U.S. S.Ct. Schneckloth warrant. (1973). 2041, 2043-44, 36 L.Ed.2d lawfully detectives thus discovered the Seiko-LaSalle car, they bag searching tied the contain- watch. After defendant’s trunk, watch, the ing put bag the the in the and notified Plains- Later, County the police department. Middlesex Prosecu- boro the a valid warrant and seized watch. tor’s Office obtained search - -XI prosecution produce the failed to suffi Defendant contends that c(4)(f) aggravating justify factor to supporting cient evidence of jury. Aggravating penalty-phase of that factor to the submission c(4)(f) purpose to “committed for the of applies factor murders detection, trial, apprehension, punishment or confinement escaping another committed the defendant or another.” for offense 2C:11-3c(4)(f). killing that Defendant avers itself N.J.S.A. c(4)(f) Rather, support a factor. defen cannot submission argues produce proof dant that the State must that defendant specific escaping apprehension. killed with the intent Defen c(4)(f) duplicates argues impermissibly that dant also factor 2C:11-3c(4)(g) pertains aggravating factor N.J.S.A. which to (the felony c(4)(g) murder in the of a commission of a course factor). point capture. His is that all felons to avoid After want consideration, properly the trial court careful we believe c(4)(f) penalty-phase jury. factor to the submitted

- A- c(4)(f) key finding to factor is “The defendant potential a to his crimes.” Martini intended eliminate witness I, c(4)(f) supra, N.J. at aggravating A.2d 1208. The apply factor can in contemporaneous felony the context of a Merely murder. killing during because a occurred the course of a not, however, felony, itself, support does submission of the c(4)(f) I, Hightower supra, factor. 120 N.J. 577 A.2d 99. Rather, producing the State has the burden of sufficient evidence from jury which reasonable could conclude that at one of least purposes motivating killing was defendant’s intent avoid apprehension Ibid.; for underlying the commission of the felony. 295, 377, (1996). Loftin, State v. 146 N.J. 680 A.2d 677 Because direct evidence a defendant’s intent avoid apprehension available, rarely may the State establish defendant’s motive I, through circumstantial supra, evidence. Martini 131 N.J. at Avoiding apprehension, however, 619 A.2d 1208. need be sole requirement killer’s motive. Ibid. The the State adduce support apprehension evidence the intent to avoid *88 c(4)(f) merely the duplicate c(4)(g) ensures that factor does not the pertaining factor to the commission of murder in the course of a felony.

- - B case, prosecution presented In the instant the sufficient support circumstantial jury’s evidence to the conclusion that one of killing defendant’s motives in Schnaps Irene was to eliminate her as a burglary witness to his apartment her and to avoid apprehension punishment for his crime. Defendant entered Sehnaps’s apartment by forcing open patio glass Appar a door. ently Schnaps bedroom, awoke and discovered in defendant her only showing which the signs jury was room of disturbance. The reasonably could have inferred that defendant decided to kill Schnaps prevent alerting neighbors, calling to her from her the police, later identifying person defendant as the who intended 377-78, to Loftin, rob her. See supra, 146 N.J. at A.2d 677 680 (finding presented that State sufficient circumstantial evidence to c(4)(f) support factor when wore even defendant mask because 226 voice, identify to his assailant’s “might have been able

victim build”). Indeed, by questioned weight, and overall when height, any complex hearing police, neighbors apartment in the denied apartment. adduced sufficient Schnaps’s The State noises from jury at least one defen to to conclude that evidence enable potential to Schnaps as a witness was to silence dant’s motives for apprehension his crime. avoid

- -C jury the had arguing penalty-phase to State the aggravating proving the existence of each of the met its burden doubt, beyond prosecutor the assistant made factors a reasonable c(4)(f) concerning following factor: statement the Aggravating was murder factor number three is this committed additionally to it Items were removed Yes, avoid was. an attempt prosecution, apprehension? items removed from this not to be stolen and but were kept Harvey, Mr. by bedding. suggest to to or to detection. I you body detect prevent apartment was clean in from [sic] of Irene washed an attempt police Schnappes prevent locating the that committed this Mr. offense, individual Harvey. object, argument Although defense counsel did by subsequent taken killer to the are improper. Actions murder c(4)(f) They do not inform the irrelevant determination. concerning killing. High motives for See inquiry defendant’s I, 99; Monturi, supra, N.J. 577 A.2d State v. tower (1984). 326-27, N.J.Super. A.2d by prosecutor’s proper The trial court remedied error ly instructing “[a]ny jury that evidence of actions taken prove the murder itself cannot be used to this defendant conceal Accordingly, prosecutor’s remarks in aggravating factor.” *89 plain summation did not constitute error. -

- XII c(4)(f) argument that the Defendant’s the factor violates c(4)(f) above, Eighth is without merit. As discussed Amendment duplicative c(4)(g) is not factor.

- -XIII argues Defendant that the trial court committed reversible jury the instructing guilt- error that it could all of consider the during phase penalty-phase evidence its deliberations. He avers the jury that trial court should have instructed the on which inquiry to aggravating-factor evidence relevant the limit- and accordingly. unguided ed the evidence Defendant contends jury guilt-phase impermissibly consideration the in- evidence jury creased the likelihood that the a capital would return sen- disagree. tence. We

- A- relating guilt-phase Instead of aggra the evidence the factors, vating jury the court told the it was consider all guilt penalty the evidence at and phases. both Defense objected requested counsel neither to the instruction nor that the specify jury court guilt-phase how should relate the evidence penalty phase. to the acknowledge

We that the trial court should have instructed the jury “concerning may it penalty evidence that use its purposes may deliberations and for which that evidence be Erazo, (1991). 112, 133, State v. used.” N.J. 594 A.2d 232 To Cases, Capital the same effect is the Bench For Manual at 231-32 ’ (November 1, 1996)‘Manual which states: during guilt [W]here there is evidence introduced which have the phase may prejudice proceedings, (e.g., photographs, other-crimes capacity phase penalty movies), jury evidence, the court should instructions to the which delineate provide during to what extent consider this evidence, for what they may purposes, penalty phase. advises, moreover, Charge The Model when “State relying during guilt phase on facts established prove verdict to factor,” aggravating an judge Manual at J-6 n. the trial should give following instruction: guilt sentencing proceedings.

However, the are considered as phases separate guilt The State contends that certain facts established verdict by your phase *90 following aggravating factors *** the *** also prove instructing again to on these facts to I that it is deliberate am you your duty faetor(s) aggravating alleges. You the the State determine whether they prove right an to a different conclusion about whether these facts have the reach prove guilt. aggravating as factor conclusion reached to whether they proved than the you [Manual J-6.] at however,

Here, specifically the designate court’s failure to the plain jury that should consider did not constitute evidence jury aggravating not to The court instructed the consider error. alleged by the and that it should other than those State factors phases of trial. evidence adduced at both Defendant consider object charge. specific did or a more Our review of the seek error not of such a nature as to have record reveals that the was unjust clearly capable producing been of an result. R. 2:10-2. - -B summation, prosecutor jury In directed the to evidence aggravating supported allegation that the State’s of factors. c(4)(c) support killing aggravated factor —that involved prosecutor jury invited to: assault to the victim —the nature Recall the of Dr. Shuster to the and the extent the wounds. testimony Rizzo as to where and how that blood was found Recall the testimony Captain that ... on a towel there chair, blood found underneath a where bedroom, hospital laying that face down, was a her found on the other side of bedroom back fan, body on the end with blood table. up splashed [sic] ... Dr. Shuster testified these wounds the head bleeds veiy she such would have become unconscious because there was profusely, simply again, photographs in the those a loss of blood head area. Look at those wounds at those wounds. I’m sure looked before. Look you not an to kill with one blow. This is an to commit, This is attempt attempt was successful to commit severe Mr. and he bodily Harvey, attempt pain successful. aggravating number That’s factor one. regard c(4)(g) the murder was commit-

With factor —that felony prosecutor jury told during ted the course of a —the indicating consider evidence that defendant the midst committing burglary robbery Sehnaps. when he killed Irene

Although prosecutor’s regarding the comments which facts were c(4)(f) prove (avoiding apprehension) relevant to the factor were improper, the trial properly jury “[a]ny court informed the evidence of actions taken the defendant conceal the murder cannot prove aggravating itself be used to this supra factor.” See Part XI.C.

Furthermore, correctly the trial court of defined the elements of charged aggravating each the jury and it factors informed the by any was not bound conclusions that it in guilt reached the phase. instructions, against background

The court’s when viewed the of prosecutor’s summation, the sufficiently jury informed the the of concerning aggravating evidence factors. photographs scene of crime the victim’s

body properly were penalty-phase jury submitted to the as rele c(4)(c) Moore, inquiry. vant to the supra, See 122 N.J. at 585 A .2d (holding trial court had discretion to admit relevant photographs II, penalty phase); Bey supra, in 112 N.J. at (same). prosecutor A.2d 887 Both the and defense counsel re photographs only ferred in summation the context of the c(4)(c) aggravating Although factor. properly trial court jury only should have instructed photographs to use these c(4)(c) factor, considering when prejudi the omission was not moreover, jury, cial. The unanimously did not finding return a c(4)(e). factor photographs We conclude that the did adverse c(4)(f) ly impact jury’s c(4)(g) aggra consideration of the vating factors.

- -C challenges Defendant also the admission into evidence photographs two apartment family the victim’s that showed photographs. photographs He contends that the constituted im disagree. victim-impact evidence. The State

permissible We jury with the crime photographs to familiarize the introduced in the struggle that no had occurred scene and to demonstrate upon the living prosecution room. The never commented victim’s any highlight photographs serve[d] “manner that Williams, State v. the jury.” in order to inflame victim’s virtues II). (Williams (1988) 393, 452, 113 N.J. 550A.2d -XIV- prosecutor reversible Defendant contends that the committed by inviting jury to penalty-phase error in his summation non-capital consider sentence constituted “sufficient whether argument unpersuasive. find punishment.” We

- A- *92 case, part presented Dr. penalty-phase As of his defendant Moran, professor sociology Holyoke Richard a Mount Col- lege, expert age as on criminal an the correlation between older, they people get Dr. Moran that behavior. testified as likely a generally are less to commit violent crime. Based on that theory, Dr. Moran testified:

years, I first believe that eligible that would for from Mr. parole, bring and I stress here could be Harvey’s us up to birth the year date 2014, ^[1950] and he would be 64 eligible the date for parole that he would after years old. thirty *** be eligible get age If he does when he’s first at the he will be paroled category [of crime]. lowest individuals to commit And if look at likely possible you fact in his ... that he committed the crime thirties under 40 commit people eighty-nine category He’ll move to he’ll be crime. where 60-plus percent category. in the risk lowest possible very Accordingly, Dr. Moran concluded that “there would be a tiny [Harvey] again.” minute chance would ever offend cross-examination, prosecutor questioned

On Dr. Moran assumption eligible about that defendant first be for his would parole prosecutor twenty years The asked: that is in 2014. “And today twenty years from or from 1994. Is that correct?” When (cid:127) agreed, prosecutor Dr. Moran ceased cross-examination. anticipation testimony, In of Dr. Moran’s the State asked that jury years the court thirty instruct defendant’s -without parole incarceration, original would start from the date of his not October from the end of the trial in December 1994. object. Defense counsel did not summation, defense counsel referred Dr. Moran’s testimo

ny age regarding the the defendant at time of the as offense factor, 2C:11-3c(5)(c). mitigating ar N.J.S.A. Defense counsel gued to jury: age this

What is that his when he this says committed offense was such that the get earliest he could ever out be would And heard possibly sixty-four. you that would indicate that sixties testimony their are one people very unlikely, only age. of all crimes violent are committed of that You percent heard by people testimony. prosecutor responded: age mitigating Is Mr. factor for to consider? Sure can Harvey’s you consider you it. You heard the if it is not it testimony, death, life, penalty, thirty years minimum What that mean? does thirty years. Very thirty years. What simple, that mean in does this case? The now Mr. year twenty years Harvey from eligible be will Is that parole, twenty years today. punishment for from sufficient do You consider may that. you feel? object. Defense did counsel

- -B argues Defendant now for the first time that the assistant defendant, prosecutor’s justifies comment According reversal. *93 argument asking jury this was tantamount to the to a consider non-statutory aggravating death-penalty during factor their delib- Furthermore, eration. argues prosecutor defendant that the sentence, non-capital made this that knowing comment a combined periods already with the of incarceration that defendant was crimes, serving for unrelated would be not enable defendant to eligible parole reject argument. for in 2014. the We

- -C attempt to consisted an penalty-phase case of Defendant’s thirty-year parole a jury the that a of life with convince sentence prosecutor appropriate a sentence than death. The bar was more justified. a jury asked the to consider whether such sentence was non-statutory aggravating factor to the arguing Rather than a question designed to jury, prosecutor simply posed a rhetorical the factor, weight “age” of prompt jury the to consider the the 2C:11-3c(5)(c). N.J.S.A. jury by allegation prosecutor misled the the date,

referring year parole 2014 as is likewise potential the eligible parole in Although meritless. defendant could not be for analysis. Dr. Moran included that in his That conclu date jury designed keep prior from defendant’s convic sion could prosecutor tions for unrelated violent crimes. Because parole, true he confined prospects not discuss defendant’s commenting presented by the himself to on evidence as ways. may not defense. Defendant cannot have it both He knowingly present parole eligibility an inaccurate date for jury, prosecution rebutting proof prior bar from it with sentences, claim and then error.

-XV- his argues Defendant entire trial was so infected with error alleged that even if do not individual errors constitute revers- error, aggregate, him fair trial. ible the errors denied (1954). Orecchio, 125, 129, v. 16 N.J. A.2d We State error, disagree. allegations singly trial and in Defendant’s both aggregation, are merit. are satisfied that defendant’s without We prejudice. fair trial was and that he suffered no undue - -XVI argues death-penalty Defendant statute violates prohibition punishment against cruel and unusual contained *94 Eighth Amendment of the Federal Constitution. As this Ramseur, originally supra, 106 N.J. at 166-97, Court held in 188, Harris, recently A.2d and supra, 141 N.J. at 574, restated in II, supra, DiFrisco 662 A.2d 137 N.J. at 645 A.2d I, supra, and Martini 221-22, N.J. reject 619 A.2d we argument. Jersey The New death-penalty statute is not protections violative of by Eighth offered Amendment.

- - XVII 2C:11-3e, to N.J.S.A. Pursuant requests defendant that we determine whether disproportionate his “sentence is penalty to the imposed cases, considering similar both the crime and the defendant.” We will proportionality review the of defendant’s pursuant sentence briefing argument schedule to be by established the Clerk of the Court after consultation with counsel. conclusion, defendant’s conviction for the murder of Irene

Schnaps and his sentence of death are affirmed.

HANDLER, J., dissenting. case, In this the Court sanctions a death sentence that was dependent analysis on an samples of blood identify that served to evidence, defendant as the Schnaps. killer of Irene That endorsed by today affirming the Court defendant’s conviction of murder death, and his sentence of was not accepted based on scientific knowledge. Further, the Court deems the evidence to have been though hearing reliable even conducted the trial court to admissibility determine its did not acceptabil- focus on its scientific ity reliability. specific evidence that was admitted to establish identity defendant’s procedure was derived from a novel methodology or analysis of blood dot-intensity analysis. known as Dot-intensity cannot, analysis measure, by any be considered generally reliable or accepted. It supported by any is not authori- ty sufficient to reliability establish its scientific acceptance or any reputable body within community or of scientists. presented capital prosecution thus are with a that is based

We *95 esoteric, primarily disputed, problematic on and evidence. It is reliable, clear because that evidence is defendant’s convic- approval tions and sentence cannot be sustained. The Court’s scientifically that evidence as is a reliable mistake of enormous significance profound misunderstandings on based the law and facts. majority compounds by failing recognize

The its error improper placed unfair and limitations were on defendant’s chal- lenges by sustaining to the DNA evidence and then the use of a problematic analysis conjunction in “statistical” with the evidence probative significance. to enhance its The statistical evidence employs a mathematical calculation that is inexact used when with and, case, analysis in factually erroneously DNA this is based on Further, data. that statistic-based evidence was admitted without hearing reliability through lacking a to determine its a witness adjective expertise. in opinion Part One of this addresses those issues. case,

In the course trial significant of this other errors Among contributed to defendant’s conviction and death sentence. jury those errors trial charge were the court’s erroneous on the Mejia issue, though which the Court finds harmless even it eligibility penalty; resulted in defendant’s appli- for the death factor, escape-detection aggravating cation of the which Court part part finds in in though clearly harmless and error-free even it sentence; misleading contributed to defendant’s death and the sheet, although verdict which the Court also finds harmless it was clearly capable dissuading jury returning anything from but death-eligible murder verdict. Those issues and others are considered Part Two.

Part One connecting The evidence adduced at trial defendant to the Schnaps purely murder of Irene was circumstantial. It consisted print aof shoe found at the crime scene consistent with sneakers defendant; single recovered negroid from hair with characteris- hair; defendant’s victim consistent with found underneath the tics of the same the scene and a watch empty box found at an watch car; at the empty an camera box found type in defendant’s found car; and blood strap found defendant’s scene and a camera was damning of the evidence for the defense The most evidence. clearly evidence. the blood of both traditional and established evidence consisted blood rarely testing. used DNA

enzyme analysis as well as novel analysis hardly determinative because The traditional blood incomprehen- or majority of the results were inconclusive the vast One result showed Only results were readable. sible. two person as who contributed could not be excluded defendant result indicated that the at the scene. The other the blood found African-American, although the contributor to the blood was *96 anyone from whose enzyme in could have come found the blood racially from mixed ancestors. lineage derived analysis weak and inconclu- enzyme Because the traditional sive, much further. Like its blood evidence the State extended analysis, from blood-enzyme the evidence derived traditional the testing that defendant could DNA showed the extended novel found at the scene. possible a source of the blood excluded as be however, analysis, the State’s extended traditional Unlike the produce quantify the results and analysis purported to that defendant was figure representing the likelihood statistical only suggested that construct donor. That statistical the actual at the 1,400 could have left such blood African Americans one evidence, embellishing statis- as well as It was that DNA scene. and tics, defendant’s conviction relied to secure on which State death sentence.

I DQ-Alpha testing of DNA evidence consisted The State’s basic relatively testing procedures are- testing. Those polymarker and DQ-Alpha new, untested, enjoy acceptance. fidl and do not gained however, universally accepted, has although not testing, 236

approval jurisdictions, Council, in numerous see National Research Evidence, (1996) The Evaluation Forensic DNA 177 & n. 30 of (“NRC ”), ours, Dishon, Report including N.J.Super. State v. 297 254, Williams, (App.Div.1997); 687 A.2d 1074 State v. 252 N.J.Su (Law 369, Div.1991). per. hand, only 599 A.2d 960 On the other permitted polymarker testing few courts have testing since the kit was first marketed October 1993. Beasley, See United States v. — 1440, 1447(8th Cir.1996), denied, U.S. -, 102 F.3d cert. 117 1856, (1997); Lowe, S.Ct. 137 L.Ed.2d 1058 United States v. 954 401, (D.Mass.1996); F.Supp. People Pope, 417-18 Ill.App.3d v. 284 695, 309, 314, 1321, (1996), 220 Ill.Dec. appeal 672 N.E.2d denied, 579, (1997); Ill.2d Ill.Dec. 677 N.E.2d 970 Morales, People v. 227 A.D.2d (N.Y.App 643 N.Y.S.2d 217 .Div.), denied, appeal 89 N.Y.2d 654 N.Y.S.2d 677 N.E.2d (1996). Despite relatively relating limited trial record procedures, majority these DQ-Alpha endorses both the and polymarker testing generally accepted as and admissible scien tific evidence. technologies DQ-Alpha

The of polymarker testing and have accepted evidence, been as a basis for admissible scientific but they designed. when have been used as descrip Court’s tion of the parts DQ-Alpha first two polymarker testing separation amplification of the DNA strands —is —the adequate. 157-163, See ante at 699 A. 2d at descrip 615-617. Its tion of the part third and crucial testing, analysis results, however, requires elaboration why to understand dot-intensity evidence used in this analysis wholly un ease— —is settled, controversial, highly problematic and of scientific reliabili *97 not, ty; by it is majority, simply as indicated the an obvious and routine extension of testing the basic DNA methodologies.

A. process isolating The of fragments, amplifying DNA the DNA segments, analyzing using and the results the reverse dot-blot system, DQ-Alpha polymarker is identical for both the testing and kits, open is For the cell’s nucleus broken release kits. both DNA, separated out portions and the relevant DNA are the filtration, centrifuge. by cleansing, and the utilization of chemical amplification amplified. During are the The DNA materials then apart through stage, heating and DNA strands are broken primers DNA and then allowed to reform with loose matter subject mixture. materials then to the are added to the The are analysis during newly stage, which the isolated and examination or testing amplified strips. flooded The difference DNA is over polymarker testing DQ-Alpha testing and is that between (the amplification process) primers stage and the used two (the are strips stage process) used in three examination different. developed DQ-Alpha polymarker kit kit were Both and the company. and manufactured same designed DQ-Alpha polymarker The tests were so analyzed strips” “reverse using are “little with results dot/blot technology.” nylon strips dots allele- The membrane contain with During amplified probes. stage, third DNA specific represent product strips. is The the sec- flooded over the dots (“loci”) being of The number of loci tions the DNA examined. alleles different in the two possible tested and the number are locus, testing polymarker DQ-Alpha one while tests. examines (five testing markers as as the polymarker at six loci well looks marker). commonly DQ-Alpha has six DQ-Alpha marker alleles, recognized polymarker the five markers has while each of strips, testing there are dots possible two or three alleles. On types particu- for representing of the different of alleles each lar marker. alleles, genotypes. person’s genotype A represent

The dots alleles, particular composed pair of a one allele for a marker instances, coming parents. In some person’s from each of DQ-Alpha testing can polymarker determine which of possesses. DQ-Alpha has genotypes different an individual locus up every twenty-one genotypes, possible made combi- different *98 loci, polymarker The possible nation six alleles.1 which have each, only possible only two or three alleles thus have three or six possible only genotypes.2 sample person’s If a one DNA contains testing presence of blood and if the kit identifies the two different alleles, genotype by can then the individual’s be determined combining (everyone simply only the and two alleles has two two marker; alleles, however, genetic alleles for each the two can be same). example, sample the For if the victim’s is found DNA alleles, DQ-Alpha 2 and have both the the then we know the “2,4.” further, genotype sample victim’s is a To if illustrate the allele, B geno- then suspect’s reveals HBGG HBGG “B,B.” type is experts strips during

The State’s how testified about used analysis stage polymarker DQ-Alpha testing and work. strips representing The contain dots alleles for different a blue) particular (brighter marker. The dots more become intense as strips the enhanced DNA that is flooded over the binds or Word, “hooks” to the dots. Dr. a Charlotte scientist Cellmark Diagnostics, for testified the State that this an “instamatic process whereby you get development you get a colored and will methodology place blue dot in a DNA The reaching attached.” for result, hardly complicated. “you result is To reach simply strip.” read off the blue dots If the dot remains blank or faint, represents then allele the dot considered present Every sample. development brighter DNA color presence than the control dot indicates of the allele that the Co., AmpliType Ampli- PM: PCR represents. dot Perkin Elmer recognized 1 The six alleles at the time of this trial are types DQ-alpha (a) genotypes 1.2, 1.3, 2, known 1.1, Thus, as: and 4. the 21 include: 1.1 (b) (c) (d) (e) 1.1; 1.2; 1.3; with 1.1 with with 2; 1.1 1.1 with 1.1 with paired 3; (f) (h) (i) (g) 1.1 with 4; 1.2; 1.3; with 1.2 1.2 with 1.2 etc. 2; with 2 The alleles are denoted letters. For the LDLR polymarker example, B), (A genotypes has two alleles and and polymarker, three possible possible (A,A; B,B). (A, C), A,B; and B, HBGG has three alleles and polymarker (A,A; C,C). genotypes A,B; and thus A,C; B,B; B,C; has six possible (Dec.1993); Cell- Typing Kit Procedures Manual fication *99 DQa 1 Results Interpretation HLA Test Diagnostics, mark (Mar. 1992) (“Those stronger or than the equivalent dots testing positive.”). kits were considered The dot are [control] presence or of certain the absence designed to measure overemphasized. point cannot be alleles. That Cellmark, strips and the results of the At two scientists read results they observe. The independently record the results by a photographs are reviewed photographed, and the are then strips read that the should be person. Dr. testified third Word appropriate they developed that is the as are because “as soon Indeed, strips immediate- should be read time to read them.” the dots become ly, they photographed, are even before because fade, expert intense, disappear. The State’s quickly and even less very long strips.” on the don’t last emphasized that “the blue dots noted, kits, testing were DQ-Alpha as polymarker and The particular presence absence of a designed only to reveal the or State, however, just determining further than The went allele. Its DQ-Alpha polymarker alleles. and presence of the various “dot-intensity analy- procedure a known as experts performed also by unapproved the scienti- procedure is untested and sis.” That community. fic detecting in traditional for errors

Although potentially useful dot-intensity analysis used testing, DQ-Alpha polymarker and persons possibly the class of who in ease to narrow further this the crime scene. to the blood found at have contributed eould case, purported to effect, analysis, applied in this dot-intensity as technique alleles.” In the expert "association of State's called this The however, literature, phrase a used to describe of alleles is association scientific else, among dependence something namely, between different interaction or DeCou, Budowle, See, Lindsey, Jacqueline Barbara e.g., Jenifer Bruce alleles. Koons, Giusti, Population Comey, Studies Validation and & Catherine Alan loci), LDLR, GYPA,HBGG, D7S8, (PM Using HLA-DQa a and and Gc Loci Procedure, (Jan. Typing Multiplex Amplification 40 J. Forensic Sci. and "dot-intensity analy 1995) ("F.B.I. ”). terminology Study accepted The more sis.”

quantify intensity present sample. of those alleles hypothesized examining State relative intensities of DQ-Alpha testing polymarker the dots obtained and the sample, testing a mixed on one could determine the relative presence of presence certain alleles. Once the relative determined, alleles was one could “subtract” the alleles from a sample thereby known contributor to the and reveal unknown genotype. contributor’s degree principle

To a certain the subtraction is a method of in analysis elimination and is dot-intensity used even without analysis. For example, if the test of the HBGG marker revealed (A, C) presence B, possible of all three alleles in mixture persons containing DNA from if two one of the contributors *100 “A,B,” genotype has a of then we the other know contributor must (i.e., genotype have a with at least one person C allele the could be “A,C,” “C,C”). “B,C” genotype Dot-intensity analysis, or howev- er, goes beyond relatively straight-forward that process. pur- It ports only alleles, presence not the of establish but also to quantify present. those alleles that are

Dot-intensity analysis single premise. is based on a It assumes testing that if strip brighter the reveals a blue dot for one of the alleles than for strip the other alleles that the indicates are present, brighter the dot present then means that that allele is in greater Using amounts than other example, alleles. the same if strip presence the HBGG marker test revealed the all of three (A, B, C), dot, alleles if A brighter dot is than B or C genotype “A,B,” and if first contributor has a of the second “A,C” contributor is genotype. assumed have the That is because the that genotype would reveal more A B alleles than “A,B” or C when alleles combined with genotype the known “A,C.” Applying analysis, would be that the result would be merely that contributor unknown has least one C allele and “A,C” “B,C” possible genotypes therefore could have of either or “C,C”; rather, analysis conclude, or that would because alleles, A that the contributor presence of added or extra assumed “A,C” genotype. in fact has the work, present in dot-intensity analysis alleles are when

For amounts, strips must be of the same the dots on the the same DNA, So, containing single individual’s intensity. sample in a should are obtained the results be dot intensities that Word, “[polymarker “relatively Dr. testified that balanced.” equal dot-intensity designed to show an when testing strips are single example, if a single individual.” For DNA came from a polymarker strip test applied to the enhanced DNA is individual’s strip marker and that test containing the allele dots for the GYPA A and the B alleles for the has the shows that the individual marker, marker A and B allele dots on the GYPA then the GYPA reasoning intensity. The behind strip equivalent test should be alleles for each an individual has two assumption is that (or, represented marker, equally those alleles are each contain one of differently, the DNA strand will phrased strand). on the parent paired from each allele —one — dot-intensity analysis assumption of The fundamental sample genotypes of a blood applied it is to determine when occurs, is caused dot-intensity the imbalance imbalance and a present. The of alleles in the amount the relative imbalance why however, explanations for imba- other experts, offered State’s among First, differ- variances may there are some lances occur. slight may cause alleles that and in the different individuals ent Second, sample. single intensity in a individual’s differences even may mixtures, ... a locus probe intensities within “relative *101 nonopti- alleles or presence in the of variant become imbalanced Third, manufacturing or a defect a defect [test] mal conditions.” intensity. Finally, in may differences dot procedures in the cause particular may a allele arise because different dot intensities allele, strength which than another present greater in or different explanations, Despite other in mixture. those true a would be any intensity however, imba- dot-intensity analysis assumes that alleles and that the presence of the due to the relative lances are presence by relative of alleles can testing strips be measured the though strips designed only even the were to presence disclose or absence of alleles.

B. samples Several dry were tested in this sample case: blood defendant, taken from sample from a towel found at the crime thought blood, scene and to contain the victim’s sample and a boxspring taken from a apartment thought the victim’s and to contain a mixture of suspect’s the victim’s and the blood.4 No sample containing only suspect’s blood blood was recovered Thus, from the scene. suspect’s genotypes, determine the genotypes compared victim’s had to be sample, the mixed and presumed what was belong unaccounted for was suspect. to the following chart by summarizes the results obtained Cell- analysis (from mark in the sample defendant’s known swatch police blood), created with defendant’s the victim’s (from sample known scene), a towel recovered from the and the (from unknown boxspring). mixture of DNA Summary Evidence Mixed Dot Schnaps’ Sample Suspect’s Susp.’s Harvey’s Sample Sample Expected Marker Intensity Dot I. w/ = 2 & 4 DQa 2,4 2,2; 2,4; or 2,4 4,4 4,4 LDLR A&B > A,B B A A,A; A,B; B,B B,B or B.B 4A fourth was taken from a of bloodied sample cardboard found at piece degraded scene, but this last was too to be sample therefore was analyzed not introduced in evidence. 5 The column genotype labeled genotypes refers to "Suspect's or Expected” one would to have if we assume expect the mixed suspect contains sample (and only) both Ms. blood and the Schnaps’s blood. The column suspect's labeled genotype Dot I.” refers to the "Susp.’s w/ one would expect suspect (and others) to have if we make the same some assumptions if we use dot- The column intensity labelled "Dot analysis. refers to the Intensity" compari- sons that Cellmark made testing and the results that Cellmark obtained from the comparing the relative strips intensities. *102 > A B GYPA & or A B A,A A,B B,B A,B A,B HBGG B & C A, B,B A=B=C n/a A.C A,B B,B A.C A,B > A B B D7S8 & or A A,A A,B GC B & A>B A, A,C A,B; B,B; A,B A,B C & or C B,C using dot-intensity analysis, This table shows that without but results, considering polymarker DQ-Alpha both the defendant sample cannot be ruled out as a contributor to the mixed if the sample Schnaps’s (compare “Suspect’s also contains Ms. DNA column). Expected” “Harvey’s Sample” column with some instances, however, particularly helpful the results are not because persons example, almost no are excluded as contributors. For person any LDLR marker results that a show with of the three (A,A; A,B; B,B) possible genotypes LDLR or could have contrib- hand, sample. uted to the mixed On the other even without dot- analysis, intensity from results the HBGG marker show that (A,C). suspect particular genotype must have HBGG Using dot-intensity analysis, argued the State that it was able narrowly Analyz- much genotypes suspect. define more LDLR, GYPA, D7S8, ing using and GC markers and dot-intensity analysis, only persons the State claimed that with the genotypes exact for those four markers as defendant could have sample (compare “Sups.’s contributed Dot I.” column w/ column). “Harvey’s Sample” with point dot-intensity analysis

The State did not to the results of DQ-Alpha for either the HBGG marker or the marker. As for marker, dot-intensity argued analysis the HBGG the State unnecessary principle was because the subtraction revealed that A,C suspect genotype. must have the The State did not explain why, dot-intensity analyzed, when results were the results alleles) (equal comport dot intensities for the three did not with Further, theory. explain the State’s the State did not whether or marker, dot-intensity analysis possible DQ-Alpha for the comparing (equal but the results of dot intensities intensities for *103 alleles) support and 4 would not the State’s assertion that genetic suspect. profile defendant fit the of the

II principal disagreement majority The that I have with the con- general dot-intensity acceptance testing. cerns the of Dot-intensi- ty analysis by upon was the essential evidence relied the State to person demonstrate that defendant was in all likelihood actual sample whose blood contributed to the mixed found at the scene. majority properly, if reluctantly, recognizes dot-intensity The that method, testing, general as a scientific must meet the standard acceptance DQ-Alpha polymarker if testing even and are them- generally accepted majori- selves found to be scientific tests. The however, ty, distinguishing misconstrues the and distinctive fea- dot-intensity testing DNA, analyzing tures as a method of denigrates many challenges testing of defendant’s to the as not going reliability to procedure, of the but rather to its then, weight, record, embarrassingly and on an deficient summari- ly procedure passes concludes that the novel scientific muster long-standing precedent. Dot-intensity analysis under our as used procedure any case, here —a never before used in court successful- ly any laboratory, any documented or validated scientific study published or literature —has not been shown to be an procedure. Further, established and reliable no foundation for record, dot-intensity analysis exists in the and the results obtained clearly grossly Finally, show that such evidence is unreliable. analysis assumptions rests on a combination of that renders the unpersuasive speculative evidence so and that it is inadmissible Jersey under New Rule Evidence 402.

A. polymarker DQ-Alpha testing designed and kits were solely presence to determine the or absence of certain alleles. however, Dot-intensity analysis, purports to determine more. It purports quantify present thereby the alleles that are identify to the specific alleles contributed each donor DNA majority only grudgingly rejects argu mixture. The State’s dot-intensity analysis nothing ment new and that no independent be basis for its admission need established. Without discussion, recognizes, really appreciating, it without admissibility. requires independent an foundation for difference concession, Ante Notwithstanding at A.2d at 624. its majority erroneously defen then devalues mischaracterizes challenges challenges competency— dant’s to the to its evidence— merely going performance polymarker as of the test Cellmark’s “concerning] admissibility, weight and as but the evidence.” Ante That 699 A.2d at 625. conclusion derives from a distortion of defendant’s claims and from a serious misun *104 dot-intensity derstanding purposes and of of the distinctive nature analysis. dot-intensity analysis proper interpretive Whether procedure scientifically grounded sufficiently and reliable that is clearly goes admissibility weight. as its to its as well reliability dot-intensity claims concern the of test

Defendant’s challenges reliability ing. specifically th[e] Defendant “the of test kit, sample and reliability dealing its in with a mixed blood the [dot-intensity analysis] for reliability propounded technique of the sample.” In interpreting of a on a mixed blood the results test fact, dot-intensity appeal exact claim on this is that defendant’s analysis generally accepted is not within the relevant scientific brief, dot-intensity community. As noted in defendant’s the Shaler, supported by Dr. Dr. interpretation “method of [was] Blake, study by Roche the FBI or even the research conducted Laboratories, question.” in manufacturers of the kit Molecular asserts, not, only challenges go to “Cell- Such do as the Court test,” 178, 699 A.2d ante at performance polymarker mark’s merely weight the evidence. at and thus do not concern the of actually challenged admitting

In defendant order to avoid analysis, majority four reliability dot-intensity the cites of 246 supports of its inaccurate that defendant’s

cases assertion only challenges accuracy dot-intensity analysis go to 178-181, weight to be attached to such Ante at A. evidence. 699 2d eases, however, Marcus, at 625-626. Those v. 294 State N.J.Su per. (App.Div.1996); People, 683 221 Fishback A.2d v. 851 (S.D. (Colo.1993); Schweitzer, P.2d 884 State v. 156 N.W.2d 1995); Kalakosky, and State v. 852 P.2d 1064 Wash.2d (1993), majority’s support do not assertion. Court, Fishback, by

Two of the cases cited Marcus and interpretation x-ray type concern of “autorads.” Autorads are the RFLP-type analysis. compare results obtained from DNA To exists, RFLP results and determine whether a match autorads fact, analyzed compared. obtaining must be and interpretation part process, of autorads is a of the RFLP and both testing, including obtaining courts found that RFLP autorads, Marcus, interpretation generally accepted. su 278-79, pra, N.J.Super. (noting at 683 A.2d 221 that “[t]he step analysis seventh in the RFLP interpretation involves the ... print patterns the ‘autorads’ to determine whether the DNA match”); Fishback, probes supra, of each of the 851 P.2d at 888 (same). Thus, dot-intensity autorads, analysis, unlike as found courts, generally accepted presenting both are a method of RFLP results, interpretation and the of autorads to reach conclusions regarding person the inclusion or exclusion of a as a DNA generally accepted. disputes contributor is relevant ability those expert interpret cases concerned “the of an Marcus, supra, N.J.Super. extra bands on an autorad.” added). words, (emphasis 683 A.2d 221 dispute In other *105 purported only was not about what autorads to show but about Marcus, Notably, what to do with anomalous results. in experts State’s reading even “testified that the of autorads con taining apparent generally accepted aspect extra bands ... is a of analysis.” 290, the field of DNA Id. at 683 A.2d 221. The issue here is not whether the poly- reverse dot-blots obtained on the strips presence marker can reveal the of alleles the mixture— they can. At interpretation issue is whether an made of those

247 strips goes beyond strips what results that designed were presence show—the generally accepted alleles —is as scienti Lowe, fic supra, evidence. F.Supp. (finding 954 at 411 that a Cf. switch to a “technique viewing new for lengths band [i.e. autorads] absolutely ... validity [that] has no effect on the of the overall methodology [i.e. RFLP]” still must be evaluated “to ensure reliability”).6 Thus, expert’s ability unlike “an perceive an abnormality x-ray,” on an concededly which “is a matter within the province Marcus, jury,” supra, N.J.Super. at decide, A .2d here we analogy, must whether a doctor’s interpretation x-ray of an can be admitted without restrictions when he x-ray testifies to a condition that designed was not Therefore, reveal. diagnosis while a doctor’s of a broken bone x-ray may from an be admissible because it generally is based on a accepted interpretation test, generally accepted of a the doctor’s diagnosis of cancer from x-ray ought that same not to be admitted unless and until the doctor can diagnosis establish that such a x-ray from generally accepted. an

Nor does the Fishback support case the State’s assertion that dot-intensity analysis properly despite was admitted the absence independent Fishback, validation. The court in supra, clearly acknowledged theory that “both the techniques underlying novel scientific evidence [like the DNA test there at issue] must be generally accepted....” 851 P.2d at 891. The court also ob served that requiring acceptance “[a] standard one or the illogical other could lead to the admission of evidence because the theory underlying generally accepted though evidence is even techniques for implementing highly it suspect are or controv 6The Lowe court did not decide “who wins th[e] semantic debate" over change technique reviewing whether independently for autorads must be generally accepted, found but instead ruled that an examination of the Daubert Pharmaceuticals, Inc., [v. Merrell Dow 509 U.S. 113 S.Ct. 125 L.Ed.2d (1993)] Lowe, reliability necessary. factors to F.Supp. ensure 411. *106 Here, dot-intensity analysis ersial.”7 Ibid. the soundness technically issue, in a procedure is at not whether such a was done correct fashion. similarly majority relies are

The other two cases on which the Kalakosky, supra, rejected unhelpful position. its the court specific challenge to DNA results based on the a defendant’s laboratory at procedures utilized. 852 P.2d 1072. defendant argued during procedures rendered the that human errors unreliable; alleged specifically, the defendant results samples accidently spilled together and that the DNA had been correctly record of the results had been mislabelled. The court fact, questions challenges not to the found those issues to be Indeed, admissibility testing. of DNA the defendant did not challenge accuracy process if the results had been here, correctly performed. Id. at 1072-73. Defendant con- trast, dot-intensity analysis accurately challenged the use of in particular process performed obtain results even if the were technically manner. correct case,

The Court also cites the Schweitzer which concerned a dispute expert’s an on over statistical conclusions the DNA test results, performance interpreta- not the of the DNA tests or the case, tion of in those results. Unlike this the defendant there dispute principles upon the scientific which ex- “d[id] [the Schweitzer, pert’s] supra, conclusions were based.”8 533 N.W.2d at 159. 7The Fishback court went so far as to demand that the statistical frequency subject general in the case be to the test of for analysis performed acceptance Id. at 893 & n. 18. Even that was not done here. See discussion

admissibility. one, section IV. part infra 8Although Schweitzer, the Court cites it refuses to measure the statistical against evidence at issue here the same standard the court applied Schweitzer. one, Schweitzer, See discussion IV.C. section part Specifically, infra recognized court that even a statistical must be found to be expert's opinion reliable, relevant, and based on valid before such evi scientifically principles dence could be admitted. N.W.2d at 159. *107 Jersey compels finding

New ease law a dot-intensity also that analysis requires independent Repeatedly validation. and consis tently, just has held is not principle this Court that it the scientific “technique” analysis” but or expert “mode of used that E.g., Kelly, must have a sound scientific basis. State v. 97 N.J. 178, 210, Cavallo, (1984); 508, 517, 478 A.2d 364 v. State 88 N.J. (1982); Hurd, 536, 525, 443 A .2d 1020 State v. 86 N.J. 432 A.2d 86 (1981); 343, (1967). 352, Cary, State 49 v. N.J. 230 A.2d 384 Cavallo, application 508, principle supra, of that in 88 N.J. 443 1020, highlights fallacy A.2d position of State’s that dot- intensity analysis needs no independent validation. We found in “[tjhere although support Cavallo that is substantial for the general acceptance psychiatric of ... witnesses court the issue reliability psychiatric relating here is not the of testimony to an Rather, psychiatric individual’s question condition. is the reliability testimony psychiatric on the that likelihood an indi particular vidual specific behaved in on a manner occasion.” Id. 522-23, at A .2d 1020. 443 The issues the Court held must be “(1) prior testimony established to admission of the were: whether psychiatrists rapists agree particular share mental character (2) psychiatrists istics and whether can an ascertain if individual possesses 523, by examining those characteristics him.” Id. at 443 A.2d Court in obviously 1020. The Cavallo was concerned with knowledge step processes state of scientific on each presented in the case. Pollock Justice himself reiterated that principle 115, Fertig, last term State 143 v. N.J. 668 A.2d 1076 (1996). case, Court, writing rejected In that for an unanimous he per permitting disallowing hypnotically-re se rule either or testimony, freshed testimony ruled that such be would admis sible if reliability certain conditions that ensured the process today and the results were followed. Ibid. The Court appears depart accurately clearly from the standard stated case, Fertig determining in the long underlying now that so as valid, methodology any “interpretation” scientific test or then is admissible, purportedly seemingly derived therefrom even if the 250 procedure itself not dem

reliability interpretive of that has been onstrated. rejected Supreme Court also has the State’s

The United States interpretations of scientific tests need be the notion v. Merrell Dow Pharma independently admissible. Daubert ceuticals, Inc., 579, 2786, 509 113 S.Ct. 125 L.Ed.2d U.S. 469 (1993), leading governing the admission of scientific case courts, recognized that evidence in federal the Court “scientific validity validity necessarily for purpose for one is not scientific other, Id. at at purposes.” unrelated S.Ct. fact, expert’s opinion must be based on the

L.Ed.2d at 482. In an science,” “subjective not on belief or procedures “methods and unsupported speculation.” Id. at S.Ct. *108 qualify knowledge,’ at 481. as ‘scientific an “[I]n

L.Ed.2d order by or assertion must be derived the scientific method. inference by Proposed testimony supported appropriate must be vali i.e., ‘good grounds,’ on what is known.” Ibid. based dation — Daubert, following step, courts have held that “each from (cid:127) v. premise initial to ultimate conclusion” must be examined. Hall (D.Or.1996). 1387, 1401 Corp., F.Supp. Healthcare 947 “In Baxter words, reliable, scientifically accept, other this court need not as any good permit drawn conclusion that science does not to be from which, instead, underlying ‘unsupported data but the constitutes ” or, speculation,’ ‘leap ... a faith.’ Ibid. Third of The Circuit recently precedent: such confirmed knowledge

Daubert’s that the to scientific testify requirement expert —conclusions good grounds for each in the that step analysis any step supported —means renders the unreliable under the Daubert factors renders the analysis expert’s changes This the inadmissible. is true whether testimony step completely methodology methodology. reliable or merely misapplies (1994), Litig., R.R. Yard 35 F.3d 745 cert. 513 [In denied, Re Paoli PCB (1995).] 1190, 115 U.S. S.Ct. 131 L.Ed.2d134 Bernstein, generally Admissibility E. See David The of Scientific Pharmaceuticals, Inc., Evidence Daubert v. Merrell Dow 15 After (1994) (noting Cardozo L.Rev. 2164 that under Daubert’s test, underlying two-part a court has determined that the “[o]nce

251 upon by expert or relied studies data an witness are reliable and trustworthy, remaining question expert the is whether the has data”). properly extrapolated from those studies or Another example principle light problem federal of the court’s this sheds on analysis: with State’s For there be an instance, times where relies on literature may expert published forming tested theories in her her accepted, ultimate widely opinion, conclusion is relevant to an issue the case. if those clearly Yet, published theories and from XYZ, and studies concludes purport them, prove expert reasoning it that the

ABC, be itself is not valid. process may expert’s scientifically (E.D.Va.1995), [Cavallo v. Star in relevant Enterprise, F.Supp. aff'd (4th Cir.1996), and rev’d in cert. F.3d 1150 part part, filed, petition for (U.S. (No. 96-1493).] 19, 1997) U.S.L.W. 3666 Mar. Here, polymarker testing; “XYZ” in example unsupported analysis dot-intensity “ABC” conclusion is that can polymarker testing performed be on results. majority utterly ignores underlying a second related issue

in dispute. only possible The issue is not whether it is theoretical ly perform dot-intensity analysis, poly- but also whether designed reliably marker capable test kit was to and was measuring determining dot intensities as a basis for presence quantity or absence of alleles the relative of alleles but Kimmelman, 66, 80, present. Romano v. 96 N.J. 474 A .2d 1 Cf. (1984) (“Once made, showing general acceptability has been judicial given reliability courts will take notice instrument’s and will admit evidence the of tests from instrument results added) requiring proof.”) (emphasis (citing without further State v. Johnson, (1964)). 146, 171, example, 42 N.J. 199 A.2d 809 For it long undisputed moving has been beams at a radar directed *109 object accurately gauge object. can speed The issue we Dantonio, 570, (1955), in State v. 18 35 considered N.J. 115 A.2d gun” reliably speed was whether a “radar of a could measure Romano, 1, Similarly, supra, 66, in vehicle. 96 A.2d N.J. 474 and Downie, denied, 450, 242, State v. 117 A.2d N.J. 569 cert. 498 U.S. 63, (1990), 111 S.Ct. 112 L.Ed.2d38 the issue was whether present person’s a the amount of alcohol in breath reflected the blood, amount of in his or but whether the alcohol her rather of alcohol on reliably could measure the amount testing device tool. An as to useftd as a forensic someone’s breath so be reliably ability polymarker kit to of the test examination necessary. interpret mixtures is thus

B. analysis majority’s dot-intensity passes the conclusion that First, test is most remarkable. not even general-acceptance does; rather, temerity suggests that it the State has the State [polymarker] wrongly argued “[[Interpretation of the PM conclusions, resulting jury for the strips, and the are matters deciding weight in of the evidence and not for the resolve reject Having forced to court to decide as a matter of law.” been majority struggles argument, the in vain to sustain the the State’s procedure this use of this evidence. order to find —a case, any in never success procedure never before utilized court fully any laboratory, hardly and even discussed in documented muster, any passes the Court wreaks publication or conference — grossly Although precedent havoc on our distorts the record. appears pay homage precedents to our vital this the Court 172-174, 622-623, area, application of see ante at 699 A.2d at its sparse those cases to the facts here is marked aberrational principle. departure from test, application general acceptance turning

Before to the precedent necessary our to understand a brief reexamination of majority’s admissibility scope of the blunder. The of all evidence, being in a particularly but scientific evidence used proceeding, “clearly v. Has criminal must be established.” State kins, 643, 649, Romano, (1993); supra, 622 A.2d 867 131 N.J. 1; Johnson, supra, 474 A.2d 42 N.J. at 199 A.2d N.J. justified high 809. standard is because freedom —indeed Such 323, 333, Cary, N.J.Super. at stake. State v. 239 A.2d life—is (Law (1970). Div.1968), aff'd, 56 N.J. 264 A.2d209 analysis if the used has “a Scientific evidence is admissible reasonably produce sufficient scientific basis to uniform and reli

253 materially able results so as to contribute to the ascertainment of 210, 364; Kelly, supra, the truth.” 97 at N.J. 478 A.2d see Romano, 80, 1; Cavallo, supra, 96 at supra, N.J. 474 A.2d 88 N.J. Hurd, 520, 1020; 536, supra, 443 A.2d 86 N.J. at 432 A.2d 86. 421, In Corp., Rubanick v. Witco Chem. 125 N.J. 593 A.2d 733 (1991), explained “general acceptance.... entails this Court application method, requires the strict of the scientific which an extraordinarily controlled, high proof prolonged, level of based on consistent, 436, 733; experience.” and validated Id. at 593 A.2d Windmere, Ins., see Inc. v. International 105 N.J. n. 378 (1987) (“[A] 522 A.2d 405 technique pass ‘experi must from the stage stage mental’ and reach a ‘demonstrable’ before a court will recognize approach.”). general, ways

In there are prove three that evidence is generally accepted and therefore reliable:

(1) general among as to the by those in the expert testimony acceptance, profes- on sion, which the witness premises based his or her proffered expert (2) legal writings indicating authoritative scientific and analysis; by underlying scientific community accepts premises proffered testimony; (3) judicial gained general that indicate the by have opinions expert’s premises acceptance. (1990) I) (Haney (quoting [State v. 121 N.J. 581 A.2d 483 Haney, 427-28, 364), at 210, N.J. 478 A.2d cert. Kelly, supra, denied, U.S. S.Ct. (1991).]9 1336, 113L.Ed.2d 268 9Although "general governs test still the admission of scienti- acceptance" high fic evidence in situation, this I am not convinced that a such standard justify would the exclusion of similar evidence a defendant in a proffered by capital prosecution. The notion of different standards for admission and the by prosecution general jurisprudence defense is common in criminal law in and death-penalty guilt proving For the State has the burden of particular. example, beyond doubt, reasonable no burden can be shifted to the defense. In yet capital aggravating cases, the State must each factor a reasonable doubt prove beyond juror juror to the satisfaction of each before one can consider the factor. any mitigating juror. contrast, factors need be found one Similarly, capital regard governing defendant offer "without to the rules the admission of may mitigating trials,” evidence at criminal factor, evidence on N.J.S.A. 2C:11- any 3c(2)(b), the State is more restricted in what evidence it introduce. See yet may *111 meeting to those

Dot-intensity analysis does not come close Dot-intensity evidence. for the admission of scientific standards any DNA successfully performed on analysis has been never case. Not experiment in or in an actual anywhere, be it an sample case, then, publication, and no scientist no court no surprisingly analysis does work dot-intensity can and has concluded that ever consistently. reliably and majority that such a novel possibly claim how can the

So Despite its ultimate con testing procedure is reliable? scientific clusion, example, paragraph of really not. For the one it does testimony on the majority’s opinion expert to the the devoted majority dot-intensity analysis, the best the general acceptance of (ill-defined) that, in some say that one scientist said can do is to circumstances, differing may indicate unbalanced dot intensities 182-183, A alleles. Ante at 699 .2d presence particular of relative majority *112 Worse, though, majority the is forced to bend the record fact, support. obtain even those shreds of In has been will as and detailed, dot-intensity accepted be iterated and no court ever has analysis, dot-intensity no analysis scientist ever has defended as a method, nonsubjective reliable and scientific no or and literature professional supports by parties conference cited the such test. dot-intensity analysis even

Not the State’s scientists defended reliable, nonsubjective as a Dr. Ms. scientific method. Word and errors, Cooper procedure fraught both admitted that the is with they repeatedly utterly both results noted the are subjective.10 although many Dr. conceded that “in cases Word dot-intensity interpretations [using can be made of the mixtures analysis, certainly all this] [can]not [be done] in circumstances.” trial, During hearing the and at what she defined neither in circumstances it could be done in what it could nor circumstances subjectivity An additional arises of the of the as a result interpreta- problem tions. Because dot must be viewed after the comple- intensity immediately testing tion of the and while the test are still wet and because the strips strips deteriorate results even cannot be or quickly, preserved fully captured rendering subjective thus immune from photos, effectively interpretations critical evaluation. prosecutor, provided a few to the she done. In a letter not be that it is generally known to forensic scientists “It is more details: types of the individual donors usually impossible to determine the using 3 more individuals a mixture from or if the DNA contains may be true kits. This also [DQ-Alpha polymarker] for However, 2 source only 2 sources. for DNA mixtures from types possible to determine the of each samples, it is sometimes Letter intensity differences detected.” if there are the donors Corbin, Word, Diagnostics, to Mr. Assistant from Dr. Cellmark added). (Oct. 18, 1994) Prosecutor, (emphasis 2at dot-intensity testimony on fact, of Dr. In the extent Word’s filling only line or two of the remarkably sparse, analysis was testimony, In that she transcript direct examination. brief of her could be an indica opined that unbalanced dot intensities properly that, apparently decided—without of a mixture. From she tion conclu any explanation support or she could draw evident —that to admit regarding presence of alleles. She went on sions relative cross-examination, however, many could other reasons on possibili explain intensity [sic] differences: several “[T]here’s fact, intensity give me these dot differences.” ties that could dot-intensity differences to conditions other she attributed some Thus, majority’s amounts of alleles. than different relative expert testimony supports characterization that “the State’s general acceptance dot-intensity analysis,” ante at exaggerated. A.2d at

Moreover, testimony considered with and Dr. Word’s must be Ironically, against testimony experts. of other balanced *113 testing in supporter admissibility polymarker of of principal testing nation to admit such was Dr. Robert the first case Shaier, Morales, supra, 643 N.Y.S.2d at 218. Dr. Shaler. See here, dot-intensity expert sharply called as a defense denounced Thus, “scientifically time. analysis being as indefensible” at this he, testing in courts proponent polymarker of the use of not even field, analysis expert in the viewed such as and a renowned reliable.11

257 appears recognize, As Court the scientific literature even discussing endorsing validity dot-intensity less of —much —the 181, (“[T]hree analysis is scant. Ante at 699 A.2d at 627 articles dot-intensity analysis.”). fact, discuss In profes- no literature or parties sional supports conference cited the evidence. Cf. (“Not ante at at 699 A.2d 627 [article] one states dot- that intensity analysis is go unreliable. The no articles further than express interpreting caution through when the results dot-intensi- ty analysis.”). example,

For Investigations, the Federal Bureau widely of in a respected relied-upon analysis, found “[b]ecause potential for unbalanced allele dot intensities and the limitations for detecting samples some mixed containing equivalent amounts DNA, caution should be interpreting exercised when evidentia- ry samples potentially may be more than one donor.” from added). Study, supra, F.B.I. 40 J. Forensic (emphasis Sci. at 52 study, That undertaken determine “the limitations of the use of test,” new [polymarker] [the] id. at thus found that even interpretations of simple presence or absence of alleles should proceed cautiously when samples mixed are involved. exercis- caution, ing that the F.B.I. any did draw dot- conclusions from intensity study imbalances. The found even imbalances supposed existed where none were fig. to exist.12 Id. at 48-49 & 4. 11 admitting testing vein, In a similar the first New case PCR relied on Jersey testing testimony, Williams, Dr. Edward Blake. expertise, procedures 960; Dishon, at A.2d supra, see also N.J.Super. supra, (discussing testing). 687 A.2d 1074 PCR Dr. Blake

N.J.Super. resoundingly consultant for the defense this case. He criticized the State's analysis. percentage The F.B.I. was unable to determine the test runs afdicted with unbalanced dots "because determination of unbalanced is some- intensity subjective.” what Ibid. *114 study (only format only prepublication in at available

The other below) dot-intensity hearing did not conclude time of the the warrant its use in an actual analysis sufficiently reliable to was Fildes, Herrin, Rebecca George Nicola & See criminal case. System DNA on Reynolds, AmpliType the PM Test Evaluation of 1247, 1251(Sept.1994). Samples, Sci. 39 J. Forensic Forensic Case study reasoning conclusion of the not the or That does bolster of Ante majority’s citation it. at majority, despite the extended 182-183, proposi at The article does state the 699 A.2d 627-628. marker the of the HBGG reveals tion that when an examination (from A, B, sample in a two the and C allele mixed presence of contributors) A,A, genotype known contributor is we and when the B,C. suspect genotype is Such a conclusion can conclude that determining testing for accepted tenet presumed from alleles, simple use subtrac and the of presence or absence of present, that if all three alleles are and principle tion that dictates allele, type other victim contributed one of two if the suspect. from the The conclusion does not alleles must have come is, involve, on, analysis dot-intensity depend or validate —that or from attempt presence of extra additional alleles infer already present. need intensity “quantity” of alleles One or intensity to reach that conclusion. That look to the of dots method, however, analysis not the that Cellmark accepted was performed the markers this on case. study by done majority’s

The use of initial State’s work and six other laboratories and the validation Roche misguided. little to with Those studies had do dot- Cellmark most, intensity analysis. At the studies found that unbalanced determining the could “a asset” for existence dots be valuable Reynolds, supra, & 40 J. Forensic Sci 285. mixture. Fildes however, study, validity approach, not test the nor did presence could suggest specific it even that the alleles be did publication by examining dot intensities. The conclud- determined casework potential sample for mixtures forensic “[t]he ed always thoughtful interpretation. analysis required has careful policies develop will need to their own for Individual laboratories *115 interpretation of mixtures experience based on their and case history information.” Id. at suggest 284. The article does any policy that for interpreting developed, mixtures has been reliable, scientifically general or has earned acceptance.

Although the Court asserts developed that Cellmark has such policies mixtures, interpret to ante at 699 A.2d at conclusion, Court does not indicate how it reached that and it cites to authority no that would acceptance reliability. evidence its or Nothing in diagnostic Cellmark’s own exhaustive manual considers application dot-intensity analysis interpret of to mixtures. fact, noting in suggests the record that developed Cellmark had Rather, policies. only such the manual polymarker states that the positive negative test results either testing strips, are or on the indicating presence of particular or absence a allele. Cellmark Diagnostics, Interpretation Results, DQa supra, Test at 1. of HLA nothing

There is in suggest the entire literature or record to polymarker that anything kit do identify test can than more potentially alleles and show that a mixture in exists certain Certainly, circumstances. no evidence a indicates that determina presence tion of the relative of reliably different alleles consistently be examining polymarker can made testing strips sample. Indeed, from a mixed we in as noted a different context during case, our original review of this the State not provide “did anyone community [for evidence in which] the scientific than other I, expert] [the Harvey State’s supra, [her]self vouche[d]....” N.J. at 581 A.2d is simply nothing 483. There in the record suggest any to scientist has ever in fact undertaken dot- intensity analysis successfully makeup to determine the allele of to a sample. donors mixed majority post-trial publications

The also on relies “en as hancing] acceptance dot-intensity analysis.” of Ante at post-trial A.2d at 627. publications Whether extra-record can support later, be on general acceptance relied is discussed see 177-181, 625-626, at 699 A .2d at but even the few relevant infra post-trial publications not support do the Court’s conclusion. The analysis, dot-intensity Report, line in one devoted

NRC cases, it might possible some be merely that “[i]n states to mixture genetic profiles the contributors distinguish the of typing.” in ... dots in a dot-blot intensities of from differences added). (emphasis panel indicat Report, supra, NRC worthy might marginally-helpful step that it was ed be certainly suggest investigation; did not further scientists dot-intensity analysis any sense reliable and admissible virtually court, though they for the admission of advocated currently being every type analysis undertaken. other DNA study, performed years after the publication and Dr. Word’s own “[bjased here, simply admission concludes that on the evidence readily studies, expected kit can to detect these the PM be *116 listed ... and the DNA that within the criteria mixtures of fall a linear that dot intensities are support studies the notion relative copies each function of the number of of alleles contributed Word, Sawosik, Teryl J. individual in the mixture.” Charlotte M. Twenty- Bing, Summary Studies & David H. Validation of from and in the United States Canada on Six Forensic Laboratories Typing AmpliType Amplification PM and the Use PCR of 1997) Kit, 39, (forthcoming (emphasis 42 J. Forensic Sci. added). testimony No was adduced here about whether criteria,” mixture nor Dr. “notion” within the does Word’s “fall[s] dot-intensity analysis finding general equate with a of about fact, conclusion, merely acceptance. In in her Dr. Word stated dot-intensity supported finding she obtained that that data Noticeably analysis detect mixtures. Ibid. absent from her could any dot-intensity analysis that could conclusion was statement effectively reliably interpret mixtures. and

Nevertheless, dot-intensity majority, concluding that rely analysis generally accepted, appears is on literature’s ambiguous testing might theo assertions that such tentative and 181, retically (noting at possible. E.g., ante at 699 A.2d be dot-intensity analysis” “[n]ot that that “three articles discuss and unreliable,” dot-intensity ignoring analysis is but one states that single judicial opinion or that dot- fact that not a article states reliable); 181, intensity analysis is ante at 699 A.2d at 627 (speculating analysis of dot-intensity “esoteric” nature may ante explain publications); the lack at 699 A.2d at 628 (“No published rejects dot-intensity analysis[,] article ... ... [so] test.”). course, supports acceptance Court, the trend possibly long-standing cannot reconcile its statements with our established,” “clearly standards scientific evidence must be Haskins, supra, 131 N.J. “general at 622 A.2d and that acceptance.... entails application the strict meth the scientific od, requires extraordinarily high proof which an level of based on controlled, consistent, Ru prolonged, experience,” and validated banick, supra, 125 N.J. opinion, 593 A.2d 733. The Court’s impossible struggle an reflecting insupportable to document an conclusion, dot-intensity constitutes more words written about analysis previously publication, study, every than written in court opinion, Although may and thesis combined. dot imbalances well mixture, indicate the existence of use of those imbalances testing methodology has not refined been and stabilized reliably, consistently, clearly can be used to determine genetic makeup analysis of the contributors. Such at this time realm, speculative penumbral remains in a still far distant reliability. from scientific

C. determining dot-intensity analysis sufficiently whether *117 general acceptance, by rehable to warrant we its can be informed application its in this this case. The evidence adduced in case dot-intensity analysis yield that not discloses does consistent re- Moreover, argues sults. to the extent that the State that it is rehable, consistently results would the obtained be inconsistent being with defendant the murderer.

Dr. the sample boxspring Word testified that from the contained 2 4 DQ-Alpha the and the allele for the marker. She also noted “2,4” sample that the victim’s DNA revealed that the victim had genotype DQ-Alpha for the marker. She further testified that 262 “fairly, DQ-Alpha strip were on test

the dot intensities the dot-intensity analysis according to roughly indicating, the equal,” theorem, roughly equal present 2 4 were the and the alleles that so, DQ-Alpha genotype being the That and victim’s amounts. “2,4,” suspect’s genotype also to be being expect would the we “2,4.” Cellmark, however, genotype that defendant’s determined “4,4.” is (“2,4”) defen- sample

If the the victim’s blood and contained (“4,4”), signifi- intensity the of the “4” dot should be dant’s blood intensity of “2” dot if the dot- cantly than the stronger the Dot-intensity intensity not case. is valid. That was theorem possible as analysis apparently foreclose defendant thus would found at scene. to the blood mixture contributor majority appears about that contradiction. The unconcerned discussion of the First it record contains no *118 (D.N.H.1997) (noting polymarker testing that the kit utilized in amplifies this polymarker DQ-Alpha case the loci well as as the locus); Herrin, Fildes, Reynolds, supra, & 39 J. Sci. at Forensic (noting AmpliType the amplification PM PCR typing amplified polymarkers kit five DQ-Alpha the and the marker). It polymarker strips is the testing that the State and majority argue capable showing significant the are dot imba- valid, dot-intensity analysis lances. For analysis to be the must polymarker strip DQ work on the Alpha and with the blots dot on strip. explanation There is no in record or the the literature why particular as to the this any results for marker would be less polymarker conclusive than for the five markers. dilemma,

Recognizing majority digs up then extra- authority why dot-intensity record for may differences irrele be 179-180, vant DQ-Alpha probes. on the Ante at at 625- A.2d Amazingly, majority authority 626. questioning reads the as dot-intensity analysis the DQ-Alpha probe, yet on it uses almost same ambiguous exact authorities and language same support its dot-intensity analysis claim that polymarker on the generally accepted. loci is For example, strongest support for accuracy dot-intensity analysis any loci—comes from a —on study probes. Blake, on DQ-Alpha done Edward See Jennifer Mihalovih, Walsh, Higuchi, Henry Erlich, Russell Polym Sean & (PCR) Amplification erase Chain Reaction and Human Leuko cyte Antigen (HLA)-DQa Oligonucleotide Biological Typing on Samples: Experience, Evidence Casework 37 J. Forensic Sci. 700 (1992). study DQ-Alpha That that with testing, *119 polymarker the markers themselves testing strips for

Other analysis subjective and not work dot-intensity is does that indicate revealed testing of the HBGG marker properly. polymarker possible for sample all three alleles boxspring the mixed had that A, B, Cooper that Dr. Word and Ms. testified that marker: and C. “roughly alleles dot-intensity that the three were the test revealed mixture intensity.” Assuming the and of the “same balanced” (an assumption true only individuals that must be came from two work) assuming mixture analysis to and that the for the State’s (another from each individual roughly equal contains amounts possible geno- is required assumption), there no combination equal the three types that have resulted in amounts of would (with fact, if In blood HBGG different alleles.13 defendant’s (with “A,C”) genotype genotype and victim’s blood HBGG mixture, “B,B”) analysts that dot-intensity would assume were in a brighter testing strip. It not. B dot be on the would possible apparent inconsistency for is that explanation One that (where composing geno- homozygous genotypes the two alleles same) up strips having type may test as are the show on the However, intensity single speculative alleles. even that same as suffers, logic of explanation polymarker it defies the because homozygous testing, genotypes (including separates which ones). event, any explanation In that has been cast into doubt study homozygous profile that “the dot of a a showed allele profile.” heterozygote F.B.I. more intense than the dots a added). Study, supra, (emphasis There- 40 J. Forensic Sci. at involve all three alleles are: The six combinations would found possible (6) (3) (4) (5) (1) (2) "AB, CC”; "AC, BC”; "AA, BC”; "AB, BC”; AC”; "AB, (3) (1) "AC, BB.” and have more A alleles than B or C alleles. Genotype pairs (6) (2) more B than A or C and have alleles alleles. Genotype Genotype pairs (4) (5) have more C alleles than A or B alleles. none of pairs possible roughly are alleles amounts. combinations present equal testified that could be The fact Dr. Word "the combinations possible 166; raises BC, CC, BB,” AA and AB and or AC and ante at A.2d at No can serious abut the of her one accuracy testimony. seriously questions that there six —not combinations. doubt exist possible three — fore, polymarker the results of the test for the HBGG marker brighter B dot than the A and should have shown a that was C part dots if defendant’s was a of the mixture. The test did blood Court, part, for not show that result. The its continues disregard reliability the fact that such results undermine admissibility dot-intensity analysis.14 hence the problems dot-intensity Other results also indicate the with (which individual, know, analysis. togeth- Each we has two alleles Therefore, particular if compose genotype) er for each marker. analyzed using sample of DNA extracted and the described were *120 correct, testing procedures, dot-intensity and if the thesis is a reveal, sample composed just on one individual’s DNA should examined, being equal the marker dot intensities for the alleles of words, person. person’s sample In that other a DNA had the A,B genotype equal for the GYPA marker should show dot for A and B and intensities alleles should be blank for the C That in allele dot. so this case. State, sample, experts

On defendant’s both for the Dr. Word intensity Cooper, possible and Ms. admitted that a “[t]here’s difference ... with GYPA” and that A is somewhat “[the dot] “variance,” stated, darker than B.” That is a Dr. Word one, particularly among common African Americans. That “vari ance,” any opts such variances that the State other here, acknowledge, may explain but the result obtained the vari destroy integrity dot-intensity analysis.15 ances To the degree naturally occurring in that there are variances dot intensi 14Instead, the Court reserves discussion of the issue for relief post-conviction proceedings. 180-182, at 626-627. Ante at 699 A.2d 15Although noting case, it outside the record in this is worth completely State, trial in this a trial court refused to admit evidence of different capital test because the defendant had shown that variances occur not polymarker at See David No. 93- loci, at the GYPA but also the GC loci. State v. Cooper, (trial 10-01627 court's of DNA unpublished opinion captioned "Admissibility Evidence”), at 19-20. No such evidence was here. presented dot-intensity analysis, prior to the predicted ties that cannot be disintegrates a reliable and useful test. analysis as problem. The GYPA example A real-life demonstrates sample A dot as darker than mixed showed the results from the Schnaps’s at the C dot. Ms. B and show no color reaction dot A,A. marker to be genotype for the GYPA sample showed her genotype Thus, sample could be either contributor to the the other A,B B,B. A than the the fact that the dot was darker or Based on suspect sample, concluded that the must B mixed the State on the A,B, A B dots on the otherwise the genotype because be intensity. point is equal sample would have been mixed variances, at the marker that like the one GYPA simply that strip brighter than the B to be caused the A dot on defendant’s dot, example, if A for the analysis. Taking that dots upset the B when more intense than dots even marker are sometimes GYPA (as present B are must have equal amounts of the A and alleles sample), suspect then the unbalanced been true defendant’s B,B. A,B genotype possibilities or Both have had either here could (Ms. A,A reveal, Schnaps’s), a genotype an could when mixed with Hence, dot-intensity analysis A than B dot. more intense dot analy- are factored into the unless somehow the variances useless fact, not accounted for here. State sis. were Variances A,B suspect genotype must have GYPA concluded —a marker, that, is not due to the variance this exact result *121 necessarily accurate.16 knowing example problems the with not

The also demonstrates person to the precise amounts of DNA that each contributed than If the victim’s blood was heavier concentration mixture. 16 argued although recognizing that "variances ... Court, that defendant integrity A.2d at ante at 699 dot-intensity analysis,” destroyed argument. Indeed, Court reaffirms that 625, never addresses the merely anomalous dot intensities. Ante variances, errors, account for the laboratory strange cannot be at 626. because the results at 699 A.2d Precisely error call into doubt the accounted for is why they reliability by laboratory dot-intensity analysis. suspect’s blood, may then the A dot be more intense than the B sample dot for the regardless mixed suspect’s of whether B,B genotype Thus, or the Court’s assertion that Cellmark AB. ante only made assumptions analysis, two in its 699 A.2d at 618, is also incorrect. dot-intensity

Besides the polymarker differences on the strip at marker, defendant’s possible disparity HBGG spotted was also Further, on the examining GC locus. polymarker the victim’s strips, expert the defense found a clear imbalance in the GC marker, and imbalances the control17 on the GYPA marker. total, of strips the six compared18 where dot intensities can be dot-intensity where no supposed imbalances are to exist because present amounts, the alleles are in equal two markers show clear imbalances, imbalances, two other slight markers show and two markers show no accuracy imbalance. The procedure rate of this would then hover somewhere around or fifty-percent below the range.19 testing strip Each PM helps has a control dot that the tester to tell if the PCR enhancing performed correctly. and the readings PM test itself were For to be

valid, intensity present brighter the dot of the alleles must be than the dot intensity of the control dot. compared genotype Dot being imbalances cannot be when the examined has (i.e., "B,B” "homozygous," two of the example, genotype) same alleles for Therefore, only strip because one dot on the will turn blue. out of the five PM (for markers), markers that both defendant and victim had a total of ten four homozygous compared. were and could not be improper samples We can check containing for imbalances in the single person's sample, DNA. In the mixed the State assumes that all imbalances like, are due not to variances and the but to different contributors to the mixture. noted, these, previously marker, examined, As one of the HBGG can be because logic mixture, pairs up tells us 1ypes that if two of alleles make and three present, types present alleles are equal found the three of alleles cannot be in proportion. types present One of the three of alleles must be in twice the strength results, however, 1ypes as the other two of alleles. The showed that the yet dot intensities unexplain- for all of the alleles were balanced. This is another able result. *122 unique this case. problems problems found here are dot study found similar difficulties with imbalances The F.B.I. Study, supra, F.B.I. 40 J. supposed to be none. where there were (“The samples that Forensic Sci. at 12-13 percentage exact of is difficult to determine allele dot intensities exhibit unbalanced intensity is somewhat determination of unbalanced because the dot-intensity study that the subjective.”). The F.B.I. concluded problem “none of these observa- imbalances were not a because Id. at type.” in an incorrect tions of unbalanced alleles resulted noted, however, trying to previously the F.B.I. was not 13. As samples from mixed interpret presence the relative of alleles intensity imbalances would affect the conclusions. where incorrect short, that the the imbalances did not affect the conclusions draw, willing imbalances would deconstruct F.B.I. was but such case, dot-intensity analysis sought in this which to determine presence the relative of certain alleles. accurately up problems

Dr. summed with dot-intensi Shaler system ty testing: in that the dot intensities are “[It] is flawed [T]hey already can’t use alleles to unbalancedf.] un[]balanced present.” regarding types present or not He derive conclusions got further noted that technicians “differences dot Cellmark they’re supposed equal they’re intensities when to be and since starting something they up is unbalanced and end off with which something can’t do that.” In [Y]ou with which is unbalanced.... sum, patent unreliability dot-intensity analysis requires its Hurd, supra, 536-37, exclusion. See 86 N.J. 432 A.2d 86 testimony if (noting expert must be excluded there is not even reliable). testimony a reasonable likelihood that such gross Not do the results obtained here establish the evidence, unreliability practice visualizing of this but the entire weighing makeup of a mixture dot intensities to determine the test, unavoidably subjective. subjective especially A one that is challenge, immune from later should not be admissible evidence admissibility for these circumstances. The standard scienti designed testing procedure fic evidence is to ensure that *123 conclusion, reaching a objective factors for upon primarily “relies analysis.” only minimal role playing subjective factors with the State Windmere, 522 A.2d 405. Even supra, 105 N.J. questioning In Dr. Shal problem. understood the seems to have er, prosecutor noted: of these fair to that the review any would it be Now, say

PROSECUTOR: subjective individual, of an is a or alleles the intensity opinion dots polymarker correct? much. DR. SHALER: Pretty depending have different the individual they may So PROSECUTOR: upon

interpretations?

[*] ^[*] ^[*] ^[*] are reliable. Nobody kinds of I don’t feel these interpretations DR. SHALER: undergone abilities to make knowledge to test their a blind examination has my difference decisions. these kinds of intensity experts, admitted that “intensi- also Cooper, one of the State’s Ms. subjective.” can ty ... be differenee[s] by the evidence proof is shown subjective nature of this The agree on laboratory could own technicians Cellmark’s here. analyz- imbalanced. intensities were or not some dot whether the two techni- boxspring, one of ing sample taken from the imbalanced dot-intensity results to be three of the cians found strips imbalances. four of the to show reader found while the other No strips to imbalanced. of the- be expert found five The defense conclusions, the dots accurately those because assess court can immediately.20 With such disappear almost begin to fade and test, subjective cannot admittedly the Court in an gross disparities analysis dot-intensity is reliable.21 conclude rates for the relative introduced about decomposition No evidence was degeneration the contra- rates may explain allele dots. While different different unreliable. even more readings, analysis would render dot-intensity they dictory troubling here, subjective particularly nature dot-intensity analysis wanted to obtain performing what results it the tests knew where laboratory testing. even before the Cellmark, to its this novel from procedure prior genotype and set out defendant’s knew of dot-intensity analysis, performance D. generally dot-intensity analysis presumed if to be Even were rejected accepted, should been here because the the evidence have numerous, complex, problemat assumptions underlying it were so ic, potentially substantially it flawed as to render more confusing prejudicial probative specific than in this context. Cavallo, 403; supra, See N.J.R.E. 88 N.J. at 443 A.2d 1020 evidence, (holding expert if under even admissible N.J.R.E. poses danger “prejudice, if it must be excluded helpfulness of attention exceeds to the confusion and diversion its finder”). Expert testimony, especially testimony fact such as this *124 evidence, complex particular DNA must be scrutinized with care reliability special because of the “aura of and trustworthiness” 280, 299, Berry, that surrounds it. State v. 140 N.J. 658 A.2d 702 (1995) (2d (quoting Young, v. 745 F. 765-66 United States 2d denied, Cir.1984), cert. 470 U.S. 105 S.Ct. 85 L.Ed.2d (1985)). scrutiny important capital in Such is even more Johnson, 263, 296-99, case. See State v. 120 N.J. 576 A.2d 834 (1990) case, (finding, capital blood-spatter in a evidence to be more prejudicial probative). than work, dot-intensity analysis being analyzed

For the blood only persons. persons must come from two and two One of those (or (or typeable) must person), be the victim a different known suspect. and the other contributor must be the The victim’s blood suspect’s present roughly equivalent and the must blood be amounts, mixed, samples, and the two blood when must not assumptions logical interact or affect one another. Those are leaps may may justified that particular or not be situation. establish that his blood was a contributor to the Cellmark's sample. partiality original can be in its seen calculation of the odds that a would have the person same markers as those recovered from the Cellmark used defendant’s sample. original though testing markers in its calculations even its own did not establish one) (specifically, those markers were particular DQ-Alpha only ones that could have contributed to the A far better would sample. procedure have been to conduct first or to use different testers for dot-intensity analysis determining genotypes performing defendant's and for dot-intensity analysis. Here, however, validity possible it not to establish the assumptions they by the because were not even defended State. works, dot-intensity analysis

If one must one assumes that case, dot-intensity present conclude that in the results ob- sample preclude for in the HBGG marker tained the mixed people sample. Dr. possibility that two contributed to the boxspring testified that she could not tell whether the Word sample more than two sources. She errone- contained blood from however, ously opined, together nicely fit “[t]he dot intensities Nevertheless, that, being sources.” she conceded for there two you probably are some combinations of three sources that “[t]here together give results.” could fit us these same correct, Although analysis assumption that the dot her was her noted, together previously fit erroneous. As intensities (balanced A, for from the HBGG marker dot intensities results alleles) B, comport not with the State’s conclusions that and C do (HBGG genotype a mixture of defendant’s DNA blood was (HBGG “A,C”) “B,B”). genotype See and the victim’s DNA 164-168, way supra at 699 A.2d at 618-620. One discussion A, B, strip test dots for the and C alleles could be HBGG sample. if to the DNA balanced is three individuals contributed (“B,B”), victim the defendant The three individuals could be the (“A,C”), (“A,C”). person and a third Two individuals could assumption produced have the results obtained unless a different *125 wrong.22 the State made was sample contributors to the

The State assumed that the two roughly equivalent amounts of blood and DNA. Relax- contributed ing assumption, explains result in that the anomalous HBGG actually to the suspect the contributed twice the amount of DNA findings The two contributors" is also cast in doubt "only assumption by according regarding dots, of the State faint dots on the test Those faint strips. dots the State's indicate other contributors. To the extent that the faint expert, manufacturing testing readings in the kits or are erroneous due either to defects technicians, the faint dots cast doubt on the errors by validity performance the dot-intensity analysis. sample as assumption, did the victim. The relaxation of that however, Moreover, suspect. renders other results the need to speculate only highlights assumptions the fact that the made State, necessary validity while to the dot-intensity of the analysis, suspect provably Moreover, are wrong. even alter- ing assumptions to fit the results obtained assumes defendant’s guilt, establishing guilt. assumptions, rather than his howev- er, independently must be established of the results. assumption

One other warrants brief discussion because the actually problems State found dot-intensity analysis with it. For valid, to be samples one must assume that the DNA from two people different do not together. affect each other when mixed But, Dr. probe Word admitted that relative intensities become presence imbalanced previously variant alleles. As noted, a variant allele found in was defendant’s GYPA marker. supra See discussion at 166-168 & n. 699 A.2d at 619-620 & n. fact, Despite 14. the State dot-intensity relied on the GYPA Moreover, result. probably variance existed at the loci GC as Cooper well. See Opinion, supra, DNA at 19-20. assumptions directly

Those admissibility, bear on the merely not weight, dot-intensity analysis. A hearing full on the as- sumptions validity and the entire dot-intensity analysis should have hearing necessary been held. That explore inconsistencies in experts’ both the State’s comments actual results obtained. The uncritical admission of this evidence in capital trial remotely without even establishing validity its egregious wrong. an

E. proponent The burden is on the clearly of evidence to establish Windmere, admissibility. its supra, 105 N.J. at 522A.2d 405. Although majority recognize rule, claims see ante at continually ignores A.2d it that burden and notes evidence, that defendant challenge did not that defendant did present evidence, more favorable or that defendant based his

273 evidence, 179, 191, 178, A.2d ante at 699 conclusions on the same 626, 625, adequately or 632. fact that defendant did not at its effectively challenge does not the State of the evidence relieve clearly establishing admissibility of novel scientific burden of weigh obligation is the relieved of evidence. Nor trial court its admissibility prior to its and to determine the evidence admission. is surprising admission that this evidence

Most is the Court’s 183, Ante at A.2d at 628. Esoteric and novel “esoteric.” 699 scrutiny undergo rigorous scientific evidence should most likely least to have been is the evidence that because type of subject testing peer to the of and review that we demand evidence. all scientific fact, obligation, reviewing it is our the admission of court’s evidence, complex that such and scientific assure itself

novel See, accepted. e.g., Kelly, generally reliable evidence is 214, obligation (recognizing 364 an supra, 97 N.J. 478 A.2d such acknowledging power the trial has to order Court hearings to the claims court to conduct additional evaluate reliability competing experts determine the of the scientific and to evidence). such, a of that As must undertake de novo review we judicial supplement record the record with aspect of the and can articles, Lindsey v. analysis. own See opinions, scientific and our (Colo.1995) 281, (ruling P.2d that admission People, 892 289-90 subject novo question evidence of law” to de novel DNA “is (Fla.1997) State, 268, review); (holding Brim v. 695 So.2d ruling subject to de novo admitting DNA evidence is trial court’s than an and is as a matter law rather review “reviewed 167, standard”); Miller, People v. Ill.2d abuse-of-discretion (1996) (McMorrow, 60-62, N.E.2d 738-40 219 Ill.Dec. (“[T]rial J., regarding the specially concurring) court decisions question technique has achieved of whether scientific threshold community should be general acceptance in relevant scientific — denied, U.S. -, review.”), 117 S.Ct. subject to de novo cert. State, (1997); 331- Taylor v. 889 P.2d 137 L.Ed.2d 497 *127 (Okla.Crim.App.1995) (noting 32 that the court conducts “an inde pendent, thorough “simply and review” does not ask whether an committed”); 256, abuse of Lyons, discretion was State v. 324 Or. 802, (1996) (“Notwithstanding 924 P.2d 805 the usual deference to discretion, ruling trial court admissibility we review that on the of novo.”) (internal omitted); scientific evidence de citations State v. Cauthron, 879, (1993) (‘We 120 Was h .2d 846 P.2d 502 review the trial court’s decision to admit or exclude novel scientific evidence novo.”); Alberico, 156, 192, de see also State v. 116 N.M. 861 P.2d (1993) (refusing 204-06 to abandon abuse-of-discretion standard evidence, for admission of scientific recognizing but that such a standard “lends itself to the criticism that it will lead to inconsis state”). tent throughout results lower courts The Florida Court, Supreme adopting reasoning of Justice McMorrow of Court, Miller, Supreme the Illinois supra, 61, see 219 Ill.Dec. at (McMorrow, J., 670 specially N.E.2d at 739 concurring), recently explained why this was so: general “Foremost is the fact that the acceptance any Brim, particular dispute.” issue transcends su pra, States, (citing 35, 695 So.2d at 274 Jones v. United 548 A.2d (D.C.App.1988)). 40 majority accepts that our review of this evidence is de novo against

when such evidence is admitted a criminal defendant. 165-168, Indeed, Ante at 699 A.2d at 619-620. the Court fre quently post-hearing judicial articles, opinions, relies on analy See, up position. 177, ses to e.g., shore its ante at 699 A.2d at 625 (“Based record, on posttrial as well publications as on judicial opinions, we conclude that correctly the trial court allowed evidence].”); (“Recent [such ante at publica 699 A.2d at 627 acceptance tions enhance the dot-intensity analysis.”); ante at 175, 183, 699 (relying A.2d at post-trial report on NRC’s support position); 175-176, ante at (citing 699 A.2d at 624 post- support general trial cases to acceptance polymarker testing). Despite majority’s acceptance review, majori- de novo ty carefully circumscribes such review to exclude all of the evi- See, support ruling. e.g., dence that does not its ante at (noting A.2d at 626 “the record does reveal whether dot- intensity test,” analysis performed DQ Alpha can be on but be); 181-182, ignoring that it can evidence ante at 699 A.2d at (acknowledging 626-627 that the HBGG result obtained for the sample unexplainable by dot-intensity analysis, mixed but refus ing explore inconsistency post-conviction-relief proceed until 183-184, ings); (recognizing ante at 699 A.2d at 628 that dot- intensity analysis “provides opening an for cross-examination and contradictory expert testimony,” refusing but to remand the case evidence); hearing develop for a ante at A.2d at such *128 (“It proceeding is too late the for defendant to insist that presented the State should have statistical evidence that defendant trial.”); 194, helpful now believes would have at ante at been record, (noting arguments A.2d at 633 this the dissent’s “[o]n particularly unpersuasive,” ignoring weight contrary are but the of precedent); (rejecting ante at 699 A.2d at 636 defendant’s part “opportunity challenge claim in because he missed his to the evidence, evidence, present [or] State’s statistical his own fact, argue jury”). majority to the In the strikes from even the contrary record evidence because it determines that when evaluat ing appellate generally “[a]n scientific evidence court ... confines 637; itself to the record.” Ante at 699 A.2d at also ante see (“The place expert testimony at 699 A .2d at 637 to introduce trial....”). is at

Accepting post-hearing only supports evidence that one side of noted, argument is indefensible. As Justice McMorrow majority concerning [t]he cannot it both If court have trial decisions ways. general of novel scientific evidence cannot be reversed absent an abuse acceptance of discretion, review, then material which was of the trial record upon part majority hand, should be considered this court. on the other believes If, that it is on scientific articles and court cases which were not proper rely part the trial record to determine whether a novel scientific has become technique generally majority in the relevant scientific then the must community, accepted acknowledge that the standard of is not a review abuse discretion simple standard. Ill.Dec, (McMorrow, [Miller, at 670 N.E.2d at 738 supra, J., specially concurring).] Dot-intensity analysis separate technique is a scientific generally accepted prior being must be to the evidence used trial, against any especially defendant criminal and most in a capital prosecution. analysis, From what little we know about the generally accepted procedure enjoys it is not or reliable. The no support equivocal any aside from Dr. Word’s statements. event, technique should have been excluded here because of questionable provably wrong assumptions the number of assumptions were made. Those render the evidence in this ease substantially confusing clarifying prejudicial more than and more probative. than

III prevented The trial court effectively challenging defendant from reliability polymarker testing procedure both the and Dr. theory regarding dot-intensity analysis. Specifically, Word’s permit court did not defendant experts to examine the scientific on Cellmark’s testimony validation studies or to elicit from defen expert study. dant’s own on the F.B.I. Cellmark’s validation study Cellmark, laboratory showed that not even responsible performing prosecution’s for testing, DNA conducted tests on reliability accuracy or dot-intensity analysis. See 161-168, supra discussion study 699 A.2d at 617. The F.B.I. concluded that dot they imbalances occurred when were not *129 that, supposed therefore, to occur and the F.B.I. would not perform rely dot-intensity analysis or on for casework. See 160-161, supra discussion 699 A.2d at majority 616-617. The acknowledges limiting the trial court’s error in examination on the study, harmless, F.B.I. but finds the error to inexplicably be finds no error in the limitation on regarding cross examination study. Cellmark’s majority’s reasoning particularly

The troubling because of its previous decision to allow into dot-intensity evidence the “esoteric” much, analysis any, support without if from the scientific commu nity. majority The reasons that all of complaints defendant’s

277 dot-intensity analysis about admissibility, “concern not the but the weight of the evidence.” Ante at Despite 699 A.2d at 625. that determination —that complaints go only defendant’s to the weight majority placed finds the limitations on the defense —the experts examination of the regarding study Cellmark’s validation proper to be because “[t]he issue of Cellmark’s validation studies polymarker on the properly reliability [test] more concerns the of such, polymarker goes [test]. As admissibility issue to the weight.” 188-189, the test and not its Ante at A 699 .2d at 630 added). (emphasis overwhelming The contradiction is and con founding. majority’s

The decision to placed sanction the limitations on the subjects examination into these any is not reasonable under experts dispute circumstances. The fact that particular whether a technique gained general scientific has acceptance is relevant and evidence, material not to the admission of the but also to the weight jury evidence, that the should attach to the if even technique in question is found admissible.

Admissibility weight may overlap. scientific evidence repeatedly This general Court has acceptance noted does not acceptance. Windmere, mean E.g., unanimous supra, 105 N.J. at 405; Tate, A 64, 83, .2d v. State 102 N.J. 505 A.2d 941 (1986); Kelly, supra, 97 N.J. at 478 A.2d 364. To the extent that a technique, although generally scientific accepted, does not enjoy acceptance, unanimous party attacking the evidence permitted must be jury to inform the technique that the does not enjoy support. otherwise, full To hold today, as the Court does would techniques be to immunize scientific from attack and to jury believing mislead the infallibility into techniques. of the weight jury evidence is a matter for the to decide. Cavallo, supra, 88 N.J. at expert ‘“[A]n A.2d 1020. always subject searching witness is cross-examination as to the ” Martini, opinion.’ 176, 264, basis of his State v. 131 N.J. (1993) (Martini I) (quoting A.2d 1208 Glenpointe Assocs. v. Teaneck, Township 37, 54, N.J.Super. (App. 574 A.2d 459 *130 278 denied, 391, (1990)),

Div.), 122 585 A.2d 392 cert. N.J. certif. — (1995). 203, denied, -, 116 133 L.Ed.2d 137 U.S. S.Ct. Indeed, credibility, weight probative value “[t]o determine reasoning expert’s opinion, question must the facts and of an one Ibid, (citing Corp., v. Salem 97 on which it is based.” Johnson added). (1984)) 78, 91, (emphasis N.J. 477 A.2d expert’s credibility always using An can attacked or be treatises subject. v. St. Peter’s Med. other authorities on the See Jacober Ctr., 475, 486, 304, part other 128 N.J. 608 A.2d in on modified (1992). 586, especially grounds, 130 617 A.2d 1213 That is N.J. expert forming has on the in his or true when the relied literature 494, (noting “juries opinion. her Id. at 608 A.2d 304 should experts use in formulat not be insulated from the literature Indeed, evidence, ing opinions”). such their without the factfinder credibility assessing expert’s “from of an would be inhibited opinion by opinion’s support in reference to that the relevant Ibid.; Hutchinson, N.J.Super. literature.” see also Blitz v. 580, 594-95, (App.Div.1991) (finding in 600 A.2d 485 error permit expert refusal of trial court to cross examination of about an article on which he had relied but which contradicted the standards, party’s position). Under those well-established challenges trial court’s limitations on defendant’s to this evidence were erroneous. noted, Court, as does find error the trial court’s refusal permit questioning study. on the F.B.I. itYet finds the error majority harmless. Ante at be A.2d 630. The recognizing “polymarker to that conclusion

comes while tying important evidence was an link defendant to the crime.” dot-intensity analysis Ante at 699 A.2d at 613-614. The added the steel to the links that chained defendant to the crime. dot-intensity analysis, Without the the DNA evidence would have ambiguous possibly been inadmissible under N.J.R.E. 403. Yet, majority going very maintains that an error to the dot-intensity analysis foundation of the was harmless. Cf. State, (1996) Williams v. 342 Md. 679 A.2d 1120-22 *131 (holding that limitations on cross examination of state’s DNA error, expert prejudicial challenges reliability and that to “the Cellmark____could testing procedures by of the used have been jury’s vital to the weight give determination of how much to the results”). PCR test dot-intensity analysis by

The was used the State to narrow drastically the number of individuals who could have contributed to the blood technique permitted mixture found at the scene. The argue the percent State to that far less than population one of the types had the of DNA (Actually, markers found at the scene. as evident, erroneously argued only will become the State one 1,400 persons out of had figure, those markers. The correct according to the expert, using dot-intensity State’s own even inclusive.) analysis, dot-intensity analysis, is far more Without at percent least ten of population the African-American could have contributed to the blood found at the scene.23 majority

The finds jury the error harmless because “the knew questioned validity that some dot-intensity analy scientists the of sis.” Ante 699 A.2d at 631. That simply assertion is wrong. jury person challenged of knew one who the witness, jury method —defendant’s own Dr. Shaler. The did not anyone by know that support not hired the defense did not the Indeed, jury evidence. the was led to believe at least the jury heard, other two scientists from whom the Dr. Word and Ms. Cooper, tests, as laboratory performing well as the the Cellmark dot-intensity analysis, Without the contributor to the blood mixture could (100% any genotype population); have had LDLR of the two of three GYPA Americans); "A,C” genotypes (approximately genotype of African 77% for (approximately Americans); the HBGG marker of African two of 27% 32% possible Americans); genotypes (approximately three D7S8 of African 66% possible Americans). genotypes (approximately three GC of African F.B.I. 89% (table 3). Study, (and supra, Using product assuming accuracy at 50 rale rule, numbers, assuming accuracy assuming margin of no for one, IV), assumptions, part error —all flawed see discussion section 15% infra African Americans share those markers. reality, F.B.I.’s technique.24 In

Diagnostics, accepted the scientists) (undertaken by experienced lends no study six forensic dot-intensity flatly assumptions support to and contradicts fact, any study supported analysis. has dot- no scientist jurors possess that information. intensity analysis. The did not known, rejected speculative, they they may have as Had well unreliable, technique used the State. unsupported, and rejected, genetic a conviction would have Had the evidence been improbable. been unjust “clearly producing an capable result”

Errors are Where, here, objects party as demand reversal. R. 2:10-2. *132 evidence, introducing ruling precluded and is from material the sufficiency “to doubt the test is the of the error raise reasonable jury might to a it as to whether the error led the result otherwise Macon, 325, 336, 57 A.2d 1 not have reached.” State v. N.J. 273 (1988) (1971); 45, 94, Bey, 112 A.2d see also State v. N.J. 846 I) (“[T]he (Bey inquiry whether the error contributed to concerns sentence.”). Here, or the the evidence of defendant’s the verdict Tirone, guilt clearly “overwhelming.” v. 64 N.J. State Cf. (1974) (finding capable having 314 A.2d 601 error not unjust overwhelming produced an result because of the evidence where, here, guilt). Certainly, of the defendant’s as error admitted at trial and where infects the most substantial evidence precluding has the effect of a meritorious attack on the error evidence, very error cannot be said to be foundation of harmless.25

study mixture and is is neglected to mention in what circumstances such discussion only and Dr. fact, "sometimes supra Cellmark Word, impossible 161-163, possible" even when there are the State's own did not stand when there are more than two contributors. 699 A.2d at 617. expert, technique testified only with pretrial analysis two contributors to the any that the sort of validation is possible. technique She See State v. tion of "residual doubt" and thus influenced concept Additionally, Marshall, of "residual doubt" this 148 N.J. error 89, 172, might its have 690 A.2d 1 potential impact prevented (1997) death sentence penalty-phase jury's {Marshall on penalty-phase III) (recognizing meted out. See delibera forma

IV dot-intensity The analysis State used the results of to narrow the class of individuals who could have contributed to the blood quantification found at the scene. The and definition of that class testing. is critical in forensic persuasiveness DNA of DNA testing simply is not to determine whether a defendant can be persons included or excluded from the having class of the same genetic scene, markers as the DNA recovered from the but also to determine the size of the class of sharing individuals those mark- percentage population ers. From the of the having certain DNA markers, probable improbable one can determine how or it is that the defendant’s blood was the By blood found at the scene. creating population-frequency analyzing database and then results, testing percentage DNA can reveal the of individuals who particular genetic State, here, share a marker. The went even further. percentage The State determined the of individuals having analyzed each of the six polymarker markers in the DQ-Alpha testing multiplied and then together the results ostensi- bly percentage to reveal population sharing all six of the 1,400 markers. The State asserted that one in African- genetic Americans shared the markers of the blood found at the figure wrong; analysis scene. The State’s is misleading, flawed, and unreliable. The entire statistical im- evidence was properly hearing. admitted without foundation and without a

A. Word, scientist, genetic frequency Dr. testified about data and frequency Frequency by testing calculations. data was obtained population groups certain determining and how often the different genotypes DQ-Alpha for the polymarker and the five markers Frequency occur. performed by multiplying calculations are then tions); (1995) (Handler, Harris, 525, 580, State v. 141 N.J. J., A.2d 333 concurring dissenting part) (noting jurisdictions recognize in and in part doubt"). "residual frequencies together. particu- if a genotypes

the of the various So genotype present twenty percent in polymarker lar marker is population polymarker genotype a different marker the and by twenty present fifty percent population, multiplying in percent by fifty percent, conclude that ten Cellmark would genotype two markers. percent population shares those “product This is called the rule.” calculation case, In this used data from its Cellmark collected own laborato- ry laboratory. came “from and from Roche Cellmark’s database laboratory paternity individuals in our and ... from casework samples.” compiled separate blood Cellmark databases for Cau- con- casians and for African-Americans. Cellmark’s database African-Americans, fifty tained Roche’s contained 100.

Applying types rule to product markers defendant (the genotypes DQ- possessed polymarker five marker and the Alpha Cooper Dr. and that defen- genotype), Word Ms. concluded 1,400 particular by one in genotypes dant’s were shared African- data, Using figure excluding Americans. Cellmark’s own but marker, the DQ-Alpha product approxi- for the rule reveals that mately one in 170 African-Americans would defendant’s share genotypes polymarker five for the markers. using dot-intensity analysis possible to limit

Without Blake, genotypes, experts, product Dr. one of defendant’s used the sharing population rule to limit the African-American the sus- forty-seven. pect’s DNA characteristics to Dr. one Word analysis “totally admitted that Dr. Blake’s was correct if one ignore[s] [dot-]intensity differences.”

B. one-in-1,400 figure up plainly held the State is summation, wrong. simply misleading and encour- State aged jury product jurors to use the asserted rule and that the 1,400 only one should conclude that African-Americans had the type same DNA as that found at the crime scene: “That is excluding ninety-nine people three one thousand hundred

283 from, that sample,[26] ninety-nine point That’s excluded over seven ... of population (emphasis three the entire of the world.”27 added).

Although the State was correct DNA defendant had that type, wrong State is asserting the flat out in the blood “4,4” from DQ-Alpha genotype. recovered the scene revealed the one-in-1,400 get figure, To the dot-intensity the relied on State “4,4” analysis. Finding DQ-Alpha genotype the in present be African-Americans,28 “B,B” 11.9% of the present LDLR to be in prosecutor previously explained sample having The had this as been the boxspring prosecutor's from at mixture taken the the crime The scene. error in stating testing calculation relates back to his earlier error in that Cellmark's of "4,4” boxspring sample suspect DQ Alpha genotype: the the revealed that had boxspring up the [sic] "Tested [Ms. matress and came with DNA that Cooper Diagnostics] at Cellmark believed mixture was a from two different sources. used, Initially they put up Cooper Alpha strip DQ do —I the chart here Ms. four, here, four, type up and come back with a of four and I marked that four. percentage people population, She indicated the of the the entire four, four, population, percent. that have that is 17 you percent population just can So exclude 83 from the entire of the world by Alpha.” DQ fact, "4,4" testing suspect genotype, the the revealed that had either a "2,4" "2,2” genotype, genotype. percent” or a One could not "exclude 83 of population having sample.

the from contributed to the 27 majority incorrectly prosecution present "[t]he states that did figure prove percentage genetic one-in-1400 of African Americans whose compositions comparable Alpha profile PM/DQ could be with the the box- spring sample.” majority Ante at A.2d at Even if the were 632. correct, above-quoted prosecutor flatly which the statement shows not to 1,400 case, 285-286, figure be the one would be See irrelevant. at infra 699 A.2d at 679. trial, actually figure figure represents At Cellmark used That 17%. presence genotype population. Remarkably, of this within entire figure except during State never mentioned the at trial its calculation of 11.9% one-in-1,400 Arguably, using percentage number. the lower was incorrect. Cooper Opinion, supra, danger (recognizing subgrouping See at DNA 6-8 requiring "ceiling principle" capped frequency use of under which of alleles is *135 “A,B” 50%, African-Americans, present in the to be

56% of GYPA 45%, 27%, “A,B” “A,C” present to in the be the HBGG in D7S8 “A,B” in 17% of African- genotype present to be and the GC 1,400 Americans, in African- the concluded that one State genotypes. The State’s calculations were shared those Americans = (.119 0.0006882, x x x x in x .27 .17 which .56 .50 .45 correct 1/1,458). However, figures assuming the were equals turn even accurate, calculations were flawed. entirely the State’s State, figures, found 11.9% of relying The on Cellmark’s “4,4” DQ-Alpha the marker. Defendant African-Americans have However, “4,4” found marker. the blood at the DQ-Alpha has the DQ-Alpha from with marker that could have come someone scene “4,4.” earlier, “2,2” (Indeed, “2,4” or or as discussed was either dot-intensity analysis, using at the supra see at A.2d “2,4” DQ-Alpha geno expect suspect to have the one would the type.) recognized suspect contributing that the Even Cellmark “2,2” genotype DQ-Alpha the mixture must have a of either or “2,4” Word, “4,4.” Diagnostics, from Dr. Cellmark or Letter (Oct. Therefore, Corbin, Prosecutor, 18,1994). Mr. Assistant at 3 Cellmark, one-in-1,400 although originally providing the even numbers, figure, response by in criticisms the revised its the defense, experts. two The numbers Cellmark were revised from type the as in 170 African-Americans shared blood found one from (assuming type at scene the blood was a mixture two the victim). individuals, being suspect being one Id. one and at 5 single subgroup); NRC of see also maximum rate allele's any presence Report, (discussing ceiling principles). at 35-36 supra, figure majority suggests that the is somewhat above the The correct approxi- figure could one in 666 that the defendant calculated be the appropriate mately majority of the one in Ante at 699 A.2d 632. The fails to 1,400. instead figure advocating but rather realize that the defense was not the one-in-666 figure. using event, if it to demonstrate the the State's the one- fallacy any misleading misleading figure is it is in a manner that in-666 any way, helps percentage even the State. The defense's calculation did not include genotype percentage that, "2,2" who share even individuals DQ-Alpha —a State just using The was not content with figure the one-in-170 improperly rejected one-in-1,400 used the and figure. flawed figure wrong That is it on DQ-Alpha because was based “4,4” genotype of being instead of based on three DQ-Alpha genotypes that suspect’s. By Cellmark could admitted be using only “4,4” figure genotype, for the all the State was calculating population Harvey’s was the that shared DNA mark- calculating percentage ers. State was popula- tion that shared the DNA markers blood found at the scene suspect’s. It figure identified as the is this latter *136 relevant.30 one-in-1,400 majority

The the figure finds material because described, the one-in-1400 evidence was relevant to show “Mo relatively composite that defendant’s genotype rare could be not by PM/DQ Alpha excluded the tests as a to contributor the box- sample.” spring majority’s Ante at A.2d at 632. The reasoning “relatively is not sound. The fact that defendant had a composite genotype” anywhere rare fact not established in the —a jury majority’s record —does not inform the one bit. the Under reasoning, exceedingly if genotype only an in rare is found one person in sample the world and if the recovered from the crime scene was determined to contain alleles that could be in found virtually State, everyone including in the person, world that the according to majority, highlight the able would be to how rare that person’s likely blood is to show that it is somehow more that that majority's analysis, the should have been included. No at evidence was adduced concerning figure trial what that was. The "[i]t Court's conclusion that is too proceeding the late in for defendant insist that the State should have presented statistical that now evidence defendant believes would have been trial," helpful Defendant, being ante at 699 A.2d at is not tenable. death, every right sentenced to has to demand that the State's statistics be reliable. calculations, Excluding DQ-Alpha population frequency the in from the one 173 African-Americans would share the other five DNA with markers defendant. importantly, (defendant being More in one 173 African-Americans one them) would share the DNAmarkers of the blood found at the scene. sample. fact that common The

person’s blood contributed the likely it more genotype a “rare” does make the defendant had he, fit genotype common who also that rather than someone with a sample. Re profile, DNA contributed to the The National the recognized type of error prevalence the this source Council has the emphasized “[u]sually subgroup to which and has irrelevant, suspect belongs we want to calculate since suspect is assumption of match on the probability by NRC DNA was left someone else.” innocent the evidence is,” supra, question according “The to the Report, proper at 29. NRC, randomly probability person, chosen “What is the genetic profile has of the evidence suspect, other than the calculations, is, probability expert’s own DNA?” State’s than in 170. no more one

C. figures calculating Even had the used correct in State could material people number who have contributed the DNA scene, product at the the use of unmodified rule found making unmodi- those calculations was erroneous. The use of the calculating frequencies product population from DNA fied rule unsupported by legal loci is the scientific and authorities. product clearly generally accepted rule is as an While *137 product proposition, accurate theoretical the issue is whether the Cauthron, frequencies. individual applied rule can be to DNA See regard DNA supra, (holding 846 P.2d at 514-15 in to admission of product expert statistical evidence and rule calculations that “[t]he theory. the For the admit must show more than evidence to be Carter, ted, theory the valid in application.”); must be its State v. (1994) 953, 763, (adopting ap 246 Neb. 524 N.W.2d 780 same example why A to the proach). famous serves demonstrate important product application us is rule’s to the issue before the In given situation not the theoretical and rule’s soundness. Collins, 497, Cal.Rptr. People v. 68 Cal.2d 66 438 P.2d 33 (1968), prosecutor applied product the the rule the facts of argue eyewitnesses ease to the improperly odds that the suspect identified the were in 12 prosecutor one million. The probabilities only noted that the of a man with a mustache was twenty-five percent, the odds only of a black man with a beard was percent, girl ten the of a with ponytail only odds a ten was percent, girl the a thirty-three odds of with blond hair was percent, seeing partly yellow odds of automobile was ten percent, and seeing couple of odds an interracial in a car was percent. .1 Because the witnesses observed such occurrences occurrences, and because the defendant was linked to such prosecutor argued that the odds that the defendant not in involved such in occurrences was one Id. at million. Shea, F.Supp. fallacy

P.2d at cited in at 336 12. in n. example is that the indepen characteristics observed were not product reliable, admissible, dent. For rule calculations to be and relevant, proponent must evidence establish the inde pendence of the in variables used the calculation. importance independence

Because of the establishing of variables, every cases, virtually published one of the 100 or so including State, three from cases this that have discussed application rule’s DNA analysis hearing have included independence examine test the of the variables. cases These are far from in unanimous their conclusions. The reason behind differing simple: long raging results A debate has been community legal application the scientific and over the product analysis. 25-36, supra, rule to DNA Report, See NRC 89-204. the National Research its report Council issued first

the evaluation of forensic DNA evidence. The NRC concluded reliable, random, if the variables —even on based and suffi- ciently large fully samples independent. Specifically, —were “Hardy- the NRC concluded that the variables were neither Weinberg Equilibrium” “Linkage nor in Equilibrium.” Without overly getting about principles detailed the scientific behind Har- dy-Weinberg Linkage Equilibrium, purposes for our it is *138 mating completely say population that because is

sufficient random, may fre- subpopulations have different because different alleles, population of different quencies of certain and because rule, structures, product into account which takes the unmodified recently may reliable. This was phenomena, of these not be none by court: made clear one federal ... if of allele can be the estimate The rule product applied reliably in accurate the conditions approxi- and reasonably population frequencies Hardy-Weinberg linkage are as and mate what known equilibrium equilibrium____ linkage Hardy-Weinberg are in real and attained equilibrium equilibrium rarely significantly and contain real are finite most because populations populations, mating. Accordingly, subgroups about non-random debate are perpetuated rule can be used often focuses on the of

whether the product reliably power Hardy-Weinberg from used to detect deviations equilibrium statistical methods linkage used to account and and the of the measures that are equilibrium adequacy for deviations. potential [Shea, 336-37.] supra, F.Supp. Thus, determining of has been over the method debate product from rule. the size of the deviations deviations and Finding principles equilibrium violated that the two were accurate, entirely many being were not the databases used “ceiling princi report NRC the use of the 1992 recommended ceiling calculating frequencies ple” principle” or the “interim essentially provided principles be used courtrooms. These population frequencies assuming limit lower of the overall even 35-36, Report, supra, at equilibrium violations of the rules. See NRC 156-59.

Although accept ceiling principles, came some courts rapidly advocating under for their use. NRC found itself attack overly that the complained rules were conservative Scientists product use rules recommended instead the of different modified By power population that would not so dilute the statistics. advocating ceiling year, the had abandoned for the last NRC however, NRC, reject Id. The has continued to principles. at 35. product provided an unmodified rule and has instead several provide formulas all of which conservative estimates alternative adjustment frequencies. product to the profile recommended analysis is the rule that is to the conducted here relevant DNA

289 (‘We adjustment. Id. that, at faetor-of-ten 34 conclude when used, probability several loci are aof coincidental match very properly small and that probabilities calculated match are (“[T]he id. at 156 way.”); correct within a factor of 10 about either (at uncertainty adequate of a from value calculated databases least persons) by product several hundred rule is within a factor of value.”). about 10 above Applying and below the true such product modified rule to in many the data this case reveals that as may people as one in seventeen share the DNA of characteristics the blood found at the scene. of widespread acceptance

Because of the deficiencies with product genetic calculating profile rule in frequencies, the vast majority permitted only of courts have modified versions See, Shea, e.g., supra, F.Supp. product rule to be admitted. 957 at (holding product 341-43 rule is reliable and admissible Daubert under if the rule is modified for likely to account uncer by error; tainties population substructuring caused and random allowing product recommended using rule when calculated NRC’s value); Lowe, supra, F.Supp. factor of ten estimated 954 407-08 rule, (finding product calculations, modified using factor of ten Johnson, admissible); v. 329, State 186 Ariz. to be 922 P.2d 294 (1996) (finding State ceiling admissible); modified principle to be Bible, 549, (1993) v. 175 Ariz. 1152, 1181 858 (holding product P.2d rule in prosecution indepen admissible because failed to establish denied, alleles), 1578, cert. 1046, U.S. S.Ct. dence 511 114 128 Sivri, State v. (1994); 115, 231 Conn. L.Ed.2d 221 646 A.2d 169 (1994) (remanding hearing admissibility for on product of modified Porter, rule); United v. 629, States (D.C.App.1992) 618 A.2d 643 (finding ceiling admissible, principle remanding interim to be but Brim, supra, hearings); for additional (finding 695 So. at 273 2d ceiling rule, principle, product potentially but unmodified to be State, v. 278, Caldwell 260 Ga. pending hearing); admissible 393 (1990) (finding rule in S.E.2d 443-44 product unmodified departure Hardy-Weinberg admissible based on evidence from v. Lanigan, equilibrium); Commonwealth 413 Mass. (1992) (finding product-rule

N.E.2d 314-16 estimates Cell admissible; agreement ceiling noting in dicta with mark to be Curnin, v. 565 N.E.2d principles); Commonwealth Mass. (1991) analysis being as not (rejecting probability Cellmark’s Bloom, time); generally accepted v. 516 N.W.2d 159 at that State (Minn.1994) (recognizing problems product rule with unmodified by ceiling principle finding product-rule calculation modified Carter, admissible); (ruling 776-83 supra, 524 N.W.2d at be generally accepted rule and there product that unmodified is not Hardy-Weinberg pro based on violation of fore is admissible *140 (1994) 145, portions); Vandebogart, N.H. A.2d 671 State v. 139 652 (finding using ceiling principle to be produet-rule estimate admis finding product-rule after unmodified calculations to be in sible (R.I.1997) admissible); Campbell, (finding A.2d State v. 691 564 ceiling principle product using rule calculated to be admissi (R.I.1996) ble); Morel, 1347, (permitting State v. 676 A.2d 1356 Streich, 331, ceiling principle); v. A.2d modified State 163 Vt. 658 (1995) admissible, product to (finding 38 unmodified rule be in and insisting ceiling principles use on before such evidence can be Jones, (1996) used); v. 130 P.2d 806 State 922 Wash.2d (finding ceiling principle generally accepted); interim to be State (1996) (finding v. P.2d Copeland, 130 Wash.2d 922 1304 product independence rule admissible if of alleles estab lished). independence

Because the never of the State established indeed, product in its rule loci used because the State calculation — possibly independence cannot establish the total of the loci—the product unmodified rule calculations used to convict defen- here improperly dant were admitted.

D. figures misleading way. popula- The are The State’s another population. samples, tion numbers are based on not on the entire Therefore, figures represent frequency not the with which the that, actually frequency genotypes population, occur but the expect degree samples, based on the we would with a reasonable certainty genotypes might samples, occur. The even accurate, yet Cellmark’s are prosecutor calculations not 100% presented them as such.

We do not even need a statistician to inform us small samples represent certainty, do not population. the actual At best, assuming large random, sufficiently the database was it may sampling us, an population, permitting be accurate of the thus degree confidence, with a reasonable predict the actual frequencies population within the as a whole. See State v. Mar shall, 109, 211-12, (1992) (Marshall II) 130 N.J. A.2d (discussing sampling noting statistical that statisticians would expect the actual sample by results differ from the standard denied, deviations), 1306, 122 cert. 507 U.S. 113 S.Ct. L.Ed.2d I, (1993); Harvey supra, 121 N.J. at 581 A.2d 483 (recognizing provides that a confidence interval information on the (cid:127) accuracy expert’s opinion). of an Although the NRC endorses the sampling, use of probabilities when match are estimated from such database, subject “such calculations are to uncertainties.” NRC supra, Report, opined 33. NRC accuracy of the “[t]he model, will depend genetic estimate on the the actual allele frequencies, and the size database.” Ibid.

The databases here neither large enough used were random nor *141 sampling be an accurate of population, the even to a reasonable degree certainty. Council, of The National Resource the perhaps impressive most for population- advocate the introduction DNA of cases, frequency in adequate statistics criminal that “an concluded database at persons.” Report, [has] least several hundred NRC added); supra, Lowe, (emphasis 33 supra, F.Supp. see also 954 at (noting n. government’s 409-10 & 10 that experts even the testi fied an adequate that had database at least several hundred persons). poly- African-American Cellmark’s database for the fifty only people just marker markers contained and Roche’s 100 Moreover, people. random, larger if the databases are not a sample required. Roche’s, usually nothing size is We know about certainly but Cellmark’s was not random. Dr. Word admitted 292 part in on “individuals in our labora the database was based

that laboratory. tory” paternity already had cases Cellmark “selected,” though obviously the criteria group The used was even Although selective in that selection are unknown. or implicit excused, might aspects be non-random of a database sometimes here, genes are or measured either functional linked where as 118-19, genes, Report, supra, at functional see NRC with provided. that confidence interval must be It is essential possibil sample truly negate in order to population be random ity idiosyncratic. the results lack of randomness and that are reliability of the the small size inhibits the databases.31 original recognized this case that Even in our review of we figures is on the to show that the statistical it burden State to tie blood at the scene must presents defendant to the found be community.” forensic-serology in the “considered authoritative fact, I, 431, A.2d Harvey supra, 121 at 581 483. In Court N.J. study ground an an for [the held that “in-house was insufficient expert] testify [percentages matches].” of Id. State’s about warning very case Despite 581 A.2d 483. our this that admission, testimony prerequisite such evidence was clearly lacking.

E. only speculate exactly can about how defective the State’s We analysis required court is here because the trial failed to hold hearing admissibility majority this on the evidence. The disre gards previous teachings independent trial our courts have an 31 publications, reported The Court’s citations to two which statistical results samples only ninety-four persons, A.2d at from and 116 ante at suggestion samples been is amiss. There is no of such small size have found Virgin sufficiently reliable to be used in a criminal trial. Government Cf. (D.V.I.1996) profile Byers, F.Supp. (noting that a DNA Islands v. small”). event, "quite any "of those database Caucasians” is studies at least included individuals chosen at random. *142 obligation reliability to ensure the of evidence and to hold a hearing admissibility on the necessary. when evidence Indeed, today the Court finds that it cannot review issue this it only because strikes from the record what it considers to be the indicating provide intervals, evidence need confidence ante 200, 637, at 699 A.2d at and because it refuses to case remand the Koedatich, evidentiary for an on hearing the matter. State v. Cf. 225, 283, (1988) (Koedatich I) 112 N.J. 548 A.2d 939 (requiring a searching scrupulous cases), and capital review of in the record denied, 1017, 109 813, 102 (1989); cert. 488 U.S. S.Ct. L.Ed.2d 803 I, (same). supra, Bey 112N.J. at 548A.2d 846 holding respect again The Court’s this is once marks a broad departure precedent. from our in example, For State Spann, v. (1993), 130 N.J. A.2d this held that Court a mathe formulation, matical used to paternity determine from blood- tests, undergo grouping hearing validity must toas its scientific prior acceptance and to the formula being admitted into evidence proceeding. a criminal This though was done even the formula gained acceptance had prior in numerous civil cases in the State 505-06, and been extensively. had written about Id. at 617 A.2d 247. The Court found that “[w]hat is needed is what trial court will have: examination and cross-examination on that issue.” Id. at 617 A.2d The 247. trial court was instructed to hold hearing, expert’s qualifications, determine the and “the rule on i.e., expert conditions attached to the testimony, admission of ” ‘general acceptance.’ testimony Id. 247. A.2d is hearing if admissible shows the evidence to be reliable generally if accepted jury expert told how the opinion might by be affected other variables the case. Id. at 498-99, 617 A.2d 247. The Court if not concluded “even counsel, objected sufficiently expert’s opinion proba on bility paternity satisfy did require the most fundamental expert testimony: ability ment of its jury to aid the in its *143 294 Kelly, supra, 97 (citing at 617 A.2d 247 Id.

deliberations.” 364). 209, A.2d at N.J. in circumstances recognized that certain Kelly, we also to matter to the trial court to remand the

prudent course would be acceptance testimony general of about the take additional A.2d 364 Kelly, supra, 97 N.J. at See scientific evidence. trial with a new and order a new (opting reverse conviction admissibility evidence instead of the scientific hearing on the remand, re recognizing limited the Court ordering but a trial ... to the ordering “a limited remand option tained the discretion, discretion, very on its broad court to exercise reliability of the knowl qualifications and the expert’s of the issue edge proffered”). majority’s disregard for our is remarkable is

What requir recognize that the reasons for its refusal to precedent, but hearing in case are much more this ing an antecedent foundational Spann, in example, For compelling than in those cases. in in gained acceptance, even courts formulation had mathematical validity Here, split Jersey this courts are on the New State. product rule has analyzing results. The product rule for DNA capital evidence in a rejected in the context of DNA even been (“I supra, at 23 Cooper Opinion, DNA in this See case State. used, specifi of statistical calculation further find that the method method, generally to be cally has not been shown product rule Furthermore, community. the results accepted in the scientific sufficiently product rule are not through use of the obtained jury.”). by a into evidence for consideration reliable to admit here, Jersey one New admission of the evidence Subsequent to the that takes into account product rule court has endorsed modified Marcus, supra, 294 N.J.Su problems noted herein. some of the court, 284-87, recently, after A 221. More another per. at 683 .2d ... the statistical lengthy Frye hearing to determine whether “a sufficiently analysis quantification of the test result product rule admissible. admitted at trial” found reliable to be 260, 281-85, Dishon, No at 687 A.2d 1074. supra, N.J.Super. hearing.32 without a court has admitted such evidence Jersey requiring New has not been alone mathematical undergo admissibility. prior formulations examination In deed, virtually every permitted court that has population similar product required database statistics and the rule formula have they admissibility be tested for before results are admit 193-194, supra ted into cited evidence. See cases 699 A.2d at and, majority ignores 632-633. those cases of its support permit decision to this a full exploration evidence without *144 many validity of surrounding product issues the the rule in evaluating DNA probabilities, confidently match it asserts “many jurisdictions accept product scientifically other the rule as 196, fact, jurisdictions reliable.” Ante at A.2d at 699 634. In most permit only rule, product modified and the authorities —even being ones majority ruling cited the close to in unanimous —are Frye-type hearing reaching that a must be held before such a Marcus, 288, supra, N.J.Super. determination. 294 at 683 A.2d (finding 221 no product scientific consensus on use of rule holding legitimate subject that the “remains a expert area for Schweitzer, testimony”); 158-60; Fishback, supra, at 533 N.W.2d supra, 18; 851 P.2d at n. supra 893 & see also cases cited at 194- 195, 699A.2d 633-634.

Requiring reliability prior of establishment to the admission expert testimony of certainly unique not to DNA statistical 404, Landrigan Corp., evidence. v. Celotex 127 605 N.J. A.2d (1992), any type testimony 1079 this expert Court noted for of “(1) admissible, testimony be the intended must concern a 32Some have asserted that rule was endorsed New people product trial Williams, court in A.2d 369, 252 599 960. Jersey by supra, N.J.Super. reading See However, NRC at 207. a careful of the in that Report, supra, opinion case reveals that it never whether addressed statistics are scientifical population has, therefore, Carter, reliable. The fallen under some ly criticism. opinion ("An 524 N.W.2d at 783 [Williams] examination of reveals that issues supra, substructure and the bases were data population reliability population addressed; therefore, case[][is] not nor as to [the] [the] relevant persuasive methodology.”). of ... statistical validity

296 (2) average juror; beyond of the

subject that is the ken matter expert’s such that an to must at a state of field testified be art. (3) reliable; must sufficiently the witness testimony could be testimony.” Id. at expertise to offer the intended have sufficient State, 413, standards of this 1079. Under the relevant 605 A.2d population-frequency data was product of the rule and admission clearly wrong. element, expertise, this Court has the third sufficient

As to possessed suitably qualified and expert that an must “be noted express expert knowledge [an to be able to specialized sufficient Moore, opinion.” v. explain the basis of that State opinion] and to Odom, (1991); 420, 458-59, v. 116 A.2d see State 122 585 864 N.J. 71, (1989); 65, Tp., Hake v. Manchester 98 N.J. 560 A.2d 1198 N.J. (1985). 302, 314, subject matter of the A.2d 836 When the 486 particu of a testimony distinctly province within the expert “falls generally be a licensed member profession, lar the witness should Frost, N.J.Super. v. profession.” of that State denied, 127 N.J. 604 A.2d (App.Div.1990), A.2d 1282 certif. (1990). profession expert “possess must a demonstrated underlying significance capability al to assess the scientific Rubanick, supra, 125 N.J. at data and information.” Therefore, genetic testing probability statis A.2d 733. where *145 offered, expert qualified should be as “[t]he tics are also Spann, supra, 130 N.J. geneticist also as a mathematician.” but Co., 204, 247; 519, A.2d Biro v. Prudential Ins. N.J. at cf. (1970) danger wrongly permitting (noting the 271 A.2d testimony jurors give evidence undue expert is that will by “expert”). In opinion is offered an credence because the Odom, 1198, emphasized it 560 A .2d we supra, 116 N.J. expertise of the witness coincide with was essential expert offers. opinions the witness ability problems no to delineate the Dr. had demonstrated Word numbers, comprehend the appear did she to inherent with the nor Furthermore, any sample. she did not unreliability in statistical one could conclude the databases provide information from which she utilized were either random enough or substantial support to Indeed, her assertions. provided the State regard no information ing the “total ‘neutrality' part lack of on assumption[s]” of the jurors the State asked the Spann, supra, 130 N.J. at make. 499, 617 ignores A.2d 247. The precedent Court this and rehashes competency old standard that “the of a testify witness to as an expert is an issue remitted to the sound discretion of the trial court.” Ante at 699 A.2d at 637. Sound discretion does not equate acceptance. with uncritical

The error is exacerbated here rejection the trial court’s challenge expert. defense’s to the pointed Defendant out that Supreme “[o]ne of the cheeks that the required Court has [when admitting statistical is testify. evidence] that a mathematician The State has requirement.” failed to meet that Defendant also argued that, population frequency “[t]he statistics cited in the reports State’s sufficiently are not reliable generally so as to be accepted in community.” Indeed, the scientific defense counsel that, particular case, noted “[i]n this testing the State’s laboratory perform failed to compilation population calculation of the frequency statistics without error.” arguments These meritorious rejected by were the trial virtually court and are ignored by the majority today. permitting product

In population rule and the databases to hearing be used without admissibility evidence, on the Court turns long precedent its back on the line of in this State and Worse, others. today the Court chooses to do in so a case in which question suspect and, the evidence in yet, worse where a defendant’s life is at stake.

Part Two I erred, understandably, The trial court failing anticipate our Mejia, State v. 141 N.J. (1995). decision 662 A.2d 308 Mejia, capital juries we held that must they be instructed that need not be unanimous in determining whether a defendant merely intended to kill seriously injure or a victim. Id. *146 298 unanimously Only jury if the in this case found that

662 A.2d 808. kill, subject defendant be to the defendant’s intent was could Gerald, 40, supra, A.2d 792.33 The penalty. death 113 N.J. 549 nonunanimity provide issue here is whether the failure to no rational basis existed in the instruction was harmless juror conclude that defendant intended evidence on which a could Harris, only bodily injury. supra, 141 to commit serious See N.J. 549, 662A.2d 333. every In case in this has found such errors to other which Court harmless, see, Harris, 548-51, e.g., supra, 141 be N.J. at 662 A.2d (1992) 333; 557, 576-80, (Bey Bey, State v. 129 N.J. 610 A.2d 814 denied, 1164, III), 1131, cert. 513 115 130 L.Ed.2d 1093 U.S. S.Ct. (1991) 1,16-19, (1995); Biegenwald, 126 172 State v. N.J. 594 A.2d IV); 523, 558-60, (Biegenwald McDougald, v. State 120 N.J. (1990); 378, 412-14, Hightower, A .2d 419 State v. 120 N.J. (1990) Rose, 63-64, I); 61, (Hightower A.2d 99 v. State 120 N.J. (1990) (Rose II), request 576 A.2d 235 the defendant did not instruction that we now find it was error for the trial court not to cases, given. any have Unlike in of those did here defendant request instruction. The trial court failed to deliver the instruction not it because felt the instruction was unwarranted but understanding rather it In because erred its of the law. such circumstances, jury making and where the is a life-or-death deci sion, plain previous error standard under which all cases have Rather, adjudged inapplicable. simply been the Court should hold the error harmful.

Virtually dispositive already of this issue is that we have deter actually mined that the error committed here was harmful. I, 407, Harvey supra, 121 A.2d N.J. we reversed defen provid dant’s conviction and death sentence because record “[t]he subsequently abrogated by That decision has been constitutional and statuto Const., I, 12; ¶ 1993). ry (signed May amendments. N.J. art. L. c. 111 abrogation affects offenses committed since the amendment’s enact Mejia, supra, Schnaps ment. 141 N.J. at 662 A.2d 308. Irene murdered in 1985. *147 jury ed ‘a rational for basis to find that the defendant intended ” only bodily injury.’ to cause serious Id. at 581 A.2d 483 (quoting 194, 209, (1990)). Coyle, State v. 119 N.J. 574 A.2d 951 That conclusion was based on five enumerated factors: burglary,

1. The State’s concession that initial intent to commit Harvey’s was not murder; 2. being confession that he struck once and in Harvey’s Schnaps only response in the punched nose; argument during 3. The State’s that some of the fifteen blows penalty-phase injure inflicted were intended to and cause upon Schnaps pain, kill; jury’s reject pathologist’s 4. The freedom to when other evidence testimony indicated a lack of murderous intent; jury 5. The fact that the trial court to instruct on lesser opted and included offenses which did not murderous intent. require [Id. at 413-14, 483.] A.2d unmistakably recognized The Court and stated that defendant’s “clearly mental state was in issue.” Id. at 581 A.2d 483. Remarkably, on pertinent ways evidence that is in all but one trial, identical to what was adduced at the first the Court reaches opposite today. the extreme only majori conclusion Not does the ty find that longer defendant’s mental state “clearly was no issue,” majority but the juror holds that no reasonable could possibly slightest conclude that his mental state was debata ble. only

The difference between the first trial and the retrial is that Harvey’s self-serving confession was not admitted at the retrial. majority The views this “a as critical distinction.” Ante at I, 699 A.2d at In Harvey 611. that factor was not deemed critical. No why reason is offered as to it has become so critical now. In fact, the difference particularly important. is not All of the pertinent Harvey’s facts contained in confession were before the jury Indeed, confession, in the retrial. in the defendant did not assert that he had not intended to murder Schnaps. Irene majority interprets containing the confession as one fact not jury before the Harvey on retrial —that claims he struck the only victim once. Ante at 699 A.2d at 611. The confession Moreover, support majority’s does not assertion.34 even if once, Harvey police told the that he hit the victim such a best, clearly implausible, suggesting, claim was at that he did not or, worse, distinctly hitting recall her more than once that he lying. The medical examiner testified to numerous skull fractures, jaw, deep a iractured and a on laceration the victim’s opined Schnaps skull. The medical examiner that Irene had been object. assaulted at least fifteen times with a blunt Photos of the sum, victim confirmed his assessment. the absence of the *148 change regarding confession does not the evidence defendant’s to Mil bodily injury. intent versus his intent to cause serious The “critical distinction” on wMch the Court now rests its opinion only pertinent was one five factors the then Court factor, just described, especially noted. That as impres- was not equally, important. sive. The other four factors are if not more apartment any Defendant entered the victim’s without intent to injure Mil or to even her. Even the State concedes as much. The theorizes, supports State and position, the evidence such a that the awoke, perhaps victim maMng, because of the noise defendant was struggle and found defendant in her A bedroom. ensued. Irene Schnaps’s disarray. During bedroom was left in struggle, confession was never written down or recorded Harvey's tape by police Sgt. trial, officers. At the first Rizzo recounted confession: Harvey’s Mr. stated that he ... was in the area of Hunter's Glen Harvey apartments trying sliding glass seeing doors, and he was doors which was patio open and which one, wasn’t. He found which to be the happened apartment in, Mrs. He went he made his bedroom, back to the Schnaps. [way] object lying master bedroom. He saw bed, an on the he assumed it was a sleeping. gone through man at first. The to be He had person appeared jewelry, including dresser drawers or the bureau and he had taken some watch. At that time Mrs. woke and she went to strike Mr. I Schnaps up Harvey. causing believe she struck him in the nose his nose to bleed. He then striking object her with a hammer or what he described as an responded like a hammer. He struck her in the head. From there she fell to an area in the bedroom near a fan. She laid there got for some time and then she and fell closer to up doorway

bedroom where she lay. injured enough him defendant to cause to bleed. Defen- victim back, pain administered several to cause to the dant struck blows presumably ability hurt him. Even the victim and to limit her to kill admits that defendant still did not have the intent to State fact, found, argued, jury the State and the that the victim. kill, injure not to to and cause the first blows were intended but theorizes, pain. majority uncritically victim The State and the only an accepts, that after the first blows did defendant form kill; blows, to in that instant between he formed a new intent intent, proceeded Schnaps. question kill no Irene There is perpetrator Schnaps, certainly person that the killed but a rational prove beyond could find that the State did not a reasonable doubt that, blows, moment defendant’s intent the brief between causing pain disabling injury causing changed from death.35 juror might A find that remained reasonable defendant’s intent bodily injury. to cause severe Certainly that evidence could leave sufficient doubt one juror’s “minimally adequate mind. The evidence least jury provide a reasonable basis for the to hold a reasonable doubt Mejia, supra, 141 that the defendant intended to cause death.” Dixon, 308; N.J. at 662 A.2d see also State v. N.J. (1991) (“The 254, 593 A.2d 266 error was not harmless because *149 evidence in this case that could have sustained an SBI there was likely, suggest ... do not that such a verdict was but verdict. We verdict, merely jury if court could not returned it.”); 547, 561, reject Pennington, State v. 119 N.J. 575 A.2d 816 (1990) “low-threshold”); Pitts, (noting that this is a State v. 116 (1989) (same). 580, 615, 562A.2d 1320 N.J. in this ease is not like the evidence in Harris and

The evidence in which the has held that the error was related cases Court 35 change responds The Court that whether or not that in mens rea occurred in 152, 612. If defendant's a brief moment "is irrelevant." Ante at 699 A.2d at moment, change certainly possible indeed, intent did not in that brief as is — inapplicable. probability probable defendant's the factor is The —then change highly intent did not to homicidal intent is relevant. assaultive

302 harmless. There is no evidence that defendant admitted or stated any 558-60, McDougald, supra, intent to kill. 120 at N.J. 577 Cf. (noting acknowledgement A.2d 419 evidence of defendant’s kill); DiFrisco, 253, (1990) intent to State v. 118 N.J. 571 914 A.2d — (DiFrisco I) (same), denied, U.S. -, 949, 133 cert. 116 S.Ct. (1996); Pitts, supra, 614-20, L.Ed.2d 873 116 N.J. at 562 A.2d (same); Hunt, 330, 374-77, 1320 State v. 115 N.J. 558 A.2d 1259 (1989) (same). defendant, weapon by used a hammer-like instrument, gun range person; is not like a fired at close into a I, Hightower the victim’s death is not so assured. supra, 120 Cf. 412-14, at (finding N.J. 577 A.2d 99 no basis for a conclusion that bodily injury defendant intended serious because defendant shot the victim handgun range with a .32-caliber from close in the chest, neck, head); II, 63-64, supra, Rose 120 N.J. at (finding charge A.2d 235 no bodily injury basis for a on serious shotgun where defendant fired a sawed-off away from inches into chest). addition, In victim’s there is no evidence that defendant steps Schnaps’s took further to assure Ms. death from which one possessed I, could conclude he an intent Hightower to kill. Cf. 413, supra, (noting 120 N.J. at 577 A.2d 99 dragged that defendant freezer); Pitts, 618, supra, victim into 116 N.J. at 562 A.2d 1320 (noting Dixon, pulse); that defendant took victim’s supra, see also at (noting N.J. 593 A.2d 266 submerged that defendant body creek, finding but that evidence could have sustained verdict). bodily injury serious

Indeed, there is more evidence here that defendant lacked murderous intent than in many there has been of the cases where Jackson, this Court has found the error reversible. State v. (1990), Jackson, N.J. 572 A.2d 607 is instructive. defendant apartment stated that he did not enter the of the victim intending Rather, night to attack or kill her. on the of the crime he reacted ato threat the victim. Id. 572 A.2d 607. repeatedly victim; His reaction was to stab the fifty- he did so times, including eighteen genital three in the area. Id. at A .2d 607. Harvey striking. The similarities with are Like in Jackson, there was evidence that defendant entered the victim’s *150 Jackson, there any to harm her. Like intent apartment without victim; threat reacted to a that defendant was evidence to draw Schnaps even able Irene was indicated that evidence Jackson, proceeded with then Like defendant blood. defendant’s the victim dead. unrelenting attack that left a vicious support of its majority points only one bit of evidence to support a reasonable possibly record could not conclusion that this majority points to the kill. The intended to doubt that defendant Standing A.2d at 612. Ante at severity of the wounds. to has sufficient alone, severity never been of the wounds something other weapon support that conclusion when Jackson, E.g., supra, 118 N.J. range. gun fired at close than (“Not every stabbing wound is intended 491, 572 A.2d 607 kill.”). majority that the does circumstances plausible set of

Another kill if defendant intended is that even not even consider already her. The victim, had killed intent after he he formed the pain. only cause meant that the first blows were asserted State have that the victim would also asserted The medical examiner could to the head. He immediately after the blows almost died her, single opined that a but he say or blows killed which blow logical possible that might sufficient. It have been blow uncon- after she fell assaulting victim even kept defendant that he fact, testified the medical examiner and died. scious exactly The medical examiner did that. that defendant believed unconscious, and probably rendered victim was stated that formed his died, or If defendant from the first blow two. perhaps Schnaps, already Irene had murdered intent after he murderous penalty. The evidence eligible the death be for he would not certainly supports possibility. contradicting majority disregard all evidence

Not does conclusion, ignores trial court’s view it even but its to be obviously this evidence found The trial court evidence. providing a Gerald In addition to ambiguous and inconclusive. decision, instructed the court required by previous our charge, as *151 jurors aggravated the on the offense of lesser-included reck manslaughter. less Those latter offenses would have been jury the if court submitted to the trial believed that the evidence support finding could that the defendant had neither the intent Dixon, kill bodily injury. nor the intent to serious cause See 255-56, supra, (noting 125 N.J. 593 A .2d 266 that a lesser and charged rationally included must if offense be based on the evidence). charge

The trial provide clearly court’s decision to a Gerald was majority suggests correct. charge The that the Gerald was not decision, required by previous our because in the absence of the confession, support rational no basis existed to it. Ante at 151- (“In 152, I,]... [Harvey predetermine 699 A.2d at 612 we did not charge the need for such a in a retrial in which the confession was excluded.”). There, majority Harvey The I turns on its head. we failing reversed defendant’s and death conviction sentence for 411, charge. deliver the (noting Gerald 121 N.J. at 581 A.2d 483 “[bjecause very paragraph opinion first that the trial jury comply court’s instruction ... not did with ... Gerald ... we conviction....”). dicta, reverse the we that noted the confes sion should have been admitted. Id. at 581 A.2d 483. (lesser) majority error, corrected, Now the asserts later if renders former logic, error harmless. That result defies sense, common and basic fairness. majority flagrantly disregards prior holding our in this

case, cases, holdings case, our in similar the facts of this and our general requirement death-penalty special warrant cases contentions, Despite majority’s consideration. a reasonable juror certainly could have concluded that defendant lacked mur- intent; therefore, derous the trial court required to instruct jury it point, need not be unanimous on this and plain failure to so instruct was error.

II I again compelled Once feel majority’s dissent from the arbitrary contradictory finding that the evidence adduced at c(4)(f) support aggravating trial could factor. 2C:11- N.J.S.A. 3c(4)(f) (permitting imposition penalty of the death if the murder detection”); for purpose escaping was “committed see State 398-408, (1996) I) Loftin, v. (Loftin N.J. 680 A.2d 677 J., (Handler, dissenting); Hightower, v. State 146 N.J. 280- (1996) II) (Handler, (Hightower J., 680 A.2d 649 dissenting); I, 436-38, (Handler, Hightower supra, J., 120 N.J. at 577 A.2d 99 decision, majority dissenting). With this confirms literal *152 c(4)(f) ly any and, support set facts can the as factor construed by Court, applied aggravating factor, and the this rather than narrowing may the subject class of defendants who to the be death penalty, virtually is The in boundless. dismissive manner which challenge this Court addresses the to the factor demonstrates that majority has dangers expan the become of its indifferent the interpretation. Additionally, attempt sive the Court does not grave by prosecutor cure error argued the made the he when a uncorrected, c(4)(f) legally improper, and support basis to the factor.

A. c(4)(f) majority’s support entirely The for the factor on rests the signs fact that there were of a disturbance at crime the scene. is, on majority entirety, The evidence which in the relies its that: forcing glass Defendant entered door. Schnaps’s by apartment open patio awoke and defendant in bedroom, discovered her which was Apparently Schnaps signs jury with the room of disturbance. The have could inferred reasonably neighbors, alerting that defendant decided to kill her from her Schnaps prevent calling identifying and the later defendant as the intended to rob who police, person neighbors Indeed, her. when in the questioned by police, apartment complex hearing denied noises from any apartment. Schnaps’s (internal omitted).] [Ante 225-226, at 699 A.2d at 649 citations comprehensible any juror It is not how could conclude that such proves, doubt, beyond scant evidence a reasonable that defendant Schnaps apprehension killed Irene in avoid order to future prosecution for robbery. in the is Silence evidence never enlightening, silence, dispositive. majority no less The converts circumstances, powerful deadly proof. mute into struggle support the signs that of a majority now holds c(4)(f) majority that the absence year, the held factor. Last I, supra, c(4)(f) factor. struggle established the signs of a Loftin signs of a 378, (noting that with no A.2d 677 146 N.J. at place). why killing took explain could struggle, no other motive flagrant surprised this latest not be Perhaps one should contradiction; long string of inconsistent and just it another is c(4)(f) example, in rulings regarding factor. For conflicting I, 377-78, 677, held supra, 146 N.J. at 680 A.2d Court Loftin c(4)(f) supporting the wearing is evidence of a mask that I, 283, 1208, supra, 131 N.J. factor, at 619A.2d and Martini supporting the disguising is evidence oneself Court noted Harris, 535-36, supra, 141 N.J. at c(4)(f) factor, 662 A.2d but in wearing and then the 333, of a mask found that the Court e(4)(f) In supporting factor. removal of the mask evidence I, 677, 377, supra, 146 N.J. at A.2d the Court held Loftin recog known or defendant would not be planning a crime where I, c(4)(f) supra, in Martini 131 N.J. factor, supports the but nized knowledge of held that a victim’s at 619 A.2d the Court I, supra, e(4)(f) 146 N.J. supports the factor. defendant Loftin committing an A.2d the Court ruled offense c(4)(f)factor, supporting miles but from one’s home is evidence *153 II, 649, 268, Hightower supra, 146 N.J. at A.2d the Court in 680 is evidence committing an offense near one’s home found that I, e(4)(f) supra, 146 N.J. Lastly, in supporting the factor. Loftin 677, robbery 318-19, that a at 680 A.2d the Court indicated at c(4)(f) factor, yet Hightow in supporting the nighttime is evidence II, 649, 268, supra, er 146 N.J. at A.2d the Court noted that 680 c(4)(f) supporting factor. It robbing daylight in is evidence analyses, impossible not to conclude under the Court’s becomes every any in order to murder —is committed murder —and apprehension. and avoid detection contradictory opinions is marked not to underscore

That trail of aimlessness, majority has im but to show that the the Court’s factor; aggravating its failure will posed limitations on the no c(4)(f) any on set of charge to factor based permit prosecutors

307 discretion, facts. is opening That limitless arbitrary the door to sentences, capricious and it is pass and “To unconstitutional. muster, capital sentencing constitutional ‘genuinely scheme must persons narrow class of eligible for the penalty death and must reasonably justify imposition of a more on severe sentence ” compared guilty defendant to others found Lowen murder.’ 244, Phelps, 231, 546, 554, v. 484 U.S. 108 S.Ct. 98 L.Ed.2d field (1988). 581 Aggravating key factors are the element to narrowing death-eligible the class of Gregg defendants. See v. Georgia, 153, 194-95, 2909, 2935, 428 U.S. 96 S.Ct. L.Ed.2d 49 (1976) 886-87 (“[Aggravating provide guidance factors] to the authority sentencing thereby and reduce the that it likelihood will impose fairly capricious arbitrary. sentence that can be called or sentencing authority required Where specify the factors decision, it upon reaching relied safeguard its the further meaningful appellate review is available to ensure death imposed capriciously manner.”); sentences are or in a freakish Ramseur, 123, 182-201, (1987). State v. 106 N.J. 188 A.2d Aggravating factors death-eligible that fail to narrow the class of persons provisions render death under sentences their unconstitutional. Gregg, supra, Cf at 428 U.S. S.Ct. . (finding although

L.Ed.2d at 890 “outrageously or wan tonly aggravating vile” factor be limiting can construed to no serve purpose, Georgia death-penalty scheme was not unconstitu tional because no evidence that the supreme existed state court sufficiently Ramseur, scope factor); would not limit the supra, 197-201, N.J. at (noting 524 A.2d 188 the Court’s “power obligation imprecise statutory language narrow vile, horrible, wantonly aggrava [the order to render or inhuman constitutional”). ting factor] The Court has failed to abide those rendering “imprecise vital mandates statutory language” imprecise even utterly more without merit.

B. probative addition the lack of supporting evidence *154 c(4)(f) proffered by majority, argument factor only the the ad- the support in during summation prosecutor by the vanced prosecutor to which the The evidence improper. factor was was motivated theory that defendant support the pointed did not apprehension. to by an intent avoid committing murder by trial uneorrected argument went fact that the Despite the court, harmless. majority finds the error to be e(4)(f) by supported factor was argued that the prosecutor

The destroyed after the evidence concealed and that defendant the fact of the murder: commission [c(4)(f) in an committed Aggravating [“]was this murder ] additionally factor it was. Items were removed Yes, to avoid apprehension?[”] prosecution,

attempt removed from this but items were Mr. Harvey, to be stolen kept by bedding. suggest of Irene I The body detection. you to ... prevent apartment locating from in an [sic] police was washed clean attempt prevent Schnappes Mr. offense, that committed this Harvey. the individual c(4)(f) factor, that the it must indicate support the For evidence to to the potential witness to eliminate murder itself was “intended I, Each 619 A.2d 1208. supra, 131 N.J. at Martini crime.” to defendant’s by prosecutor related argued facts support the conclusion murder and do not taken actions after robbery to conceal the committed the murder itself was that the actions Jersey repeatedly have held offense. New courts support the murder are not admissible of defendant to conceal c(4)(f) I, A.2d supra, 120 N.J. at Hightower factor. 317, 326-27, Monturi, 478 A.2d 1266 99; N.J.Super. v. State must, (Law Div.1984). notes, majority correctly as it that the The Ante at 699 A.2d at argument “improper.” prosecutor’s 648. however, seriously misapprehends the record majority, representations impermissible prosecutor’s

when it finds that the court instruction. The trial the trial court’s were cured concluding The trial court’s provided no curative instruction. law, instructions, correctly stating were not made although way and in no prosecutor’s improper remarks response to the court did not inform or even cancelled them: neutralized or remarks were erroneous jury prosecutor’s that the intimate to the

309 Rather, disregarded. and were to part be lengthy charge, as of a simply jurors the court “[a]ny observed to the that evidence of by action taken the defendant to conceal the murder itself cannot prove aggravating be used to this factor.” Although in by some cases an may instruction the trial court prejudice by cure the prosecutor’s statement, done improper see I, supra, 320-23, Koedatich 112 N.J. 548 A.2d a statement law, correct, of the if even made the final instructions to the jury any without acknowledgement reference to or improper remarks is not sufficient. A charge curative should be delivered immediately objectionable after the directly action and should Zola, 384, 426, address error. See State v. 112 N.J. 548 A.2d (1988), denied, 1022 cert. 489 U.S. 109 S.Ct. (1989); I, 324-25,

L.Ed.2d 205 supra, Koedatich 112 N.J. at jurors A.2d 939. The were disregard never told to improper remarks and the comments never were withdrawn. The Court jury fully now assumes that the prosecutor’s understood that the wrong remarks account, were and were not to be taken into when court, counsel, the trial defense prosecutor and the all failed to appreciate that fact. That is a assumption drastic in view of the stakes —a solely death sentence that jury turns on whether the persuaded by would be prosecutor’s argument. light c(4)(f) both the absence of supporting substantive evidence prosecutor’s factor and the improper gravely misleading argu regarding ment factor, evidence of the aggravating sole this Court jury must infer that prosecutor’s influenced remarks, obligated and is to find the error harmful.

Ill I also dissent ruling from the Court’s points: on several other incomprehensible felony-murder charge was harmless error, 152-154, 612-613; ante at 699 A.2d at that the erroneous jury charge permitting penalty jury guilt phase to consider all error, 223-225, evidence was harmless ante at 699 A.2d at 647- 648; that the finding prosecutor’s Court’s that the reference to 215-217, error, at 643- 699A.2d ante at “pubic hair” was harmless believing jury misled into 645; penalty to be permitting the proper, ante at eligible parole was be for defendant would 649-650; aggregation of so 227-228, and that A.2d at denying defen not have the effect many “harmless errors” did trial, 699A .2dat 650. a fair ante at dant

A. sheet, jury consider the permitted the which The verdict guilty of found defendant only if it first felony murder count murder, utterly incomprehensible plainly and death-eligible error, majority but holds the error starkly wrong. finds The be harmless. disagree; I such an error can never harmless. (1992), Purnell, 518, A.2d 175 this Court 126 N.J. 601 In State v. given jurors not been the had a death sentence because vacated noncapital of offense of opportunity to convict defendant the that: felony The Court noted murder. that all forms of homicide rationally supported by have held consistently We should be offenses, or alternative placed whether be lesser-included evidence, they jury. murder statute and thus a deny To truncate the definitions of the before the

jury of murder has been to decide which of the forms proven the mechanism unacceptable. [Id. at 175.] 601 A.2d 530-31, repeatedly reiterated this Court. See principle has been That 484, (noting capital 662 A.2d 308 that a Mejia, supra, 141 N.J. at charge not given every opportunity to convict of the “jury must be sequential penalty” disapproving of a carrying the death Code, Cannel, Jersey New Criminal charge) (quoting John M. 2C:1-8(e) Dixon, (1994)); Annotated, comment 13 to N.J.S.A. 256, (holding felony- A.2d 266 supra, 125 N.J. at jury capital in case charge submitted to the a murder must be clearly appropriateness of the indicates the where the evidence charge). plain today finds that the error did not constitute

The Court any plausible has not advanced version “[defendant error because jury felony which the could him have convicted of murder convicting purposeful-or-knowing without him also murder.” Ante majority at A.2d at The poses 613. the incorrect issue, question. Purnell, The as this Court underscored in supra, at N.J. 601 A.2d is whether the evidence could support felony-murder charge. a As previously this Court has recognized in the context of a murder committed in course of a robbery, clearly it could: relying aggravating on as an

By robbery factor, State affirmed necessarily jury existed a basis for proofs rational to choose the death- provided ineligible finding guilty defendant option murder. To a felony deprive capital charge, arguably defendant of lesser-included alternative murder which would have affected deliberation of a death is not sentence, constitutionally permissi- ble.

[Ibid.] acknowledges The jury Court that “the charge combination of the away and the sheet jury verdict led the from rendering noncapi murder,” felony tal verdict of ante at 699 A.2d 613. To conclude that the error was insupportable. harmless is light Court’s conclusion is even more indefensible in case, facts of Purnell itself. In that the defendant stabbed the chest, neck, Purnell, victim fifteen times and abdomen. *157 supra, Despite 126 N.J. at 601 A.2d 175. the extreme nature significantly of those extreme more and indicative of intent facts— kill despite than the facts implausibility here —and the of an acquittal purposeful-or-knowing murder and a conviction murder, felony we reversed the murder conviction because the charge felony failure to murder. How the same error we deemed expla reversible error in Purnell harmless here defies by holding nation. The Court should its stand in Purnell and not implicitly by it denying overrule that it the controls in circum plain stances of this case and establishes error.

B. incorrectly jurors The trial court the penalty-phase told they presented” could consider “all the evidence in both the determining whether the trial in guilt phases of the penalty and majority recog- aggravating factors. The proven the had State erroneous, error to be it finds the but charge was nizes that considered harmless charge cannot be disagree. The I harmless. c(4)(f) aggravating factor. respect in of the at least inform trial courts must long held that Although this has Court in their they may use evidence jurors and to what extent how 112, 133, Erazo, deliberations, 126 N.J. State v. penalty see 123, 183, 548 A.2d 887 (1991); Bey, 112 N.J. v. A State .2d Causes, Capital at (1988) II); Bench Manual (Bey see also for fulfill that (Nov. 1, 1996), here failed to the trial court 231-32 Rather, jurors the that: court instructed obligation. the at both that material includes [T]he presented to be considered by you evidence all exhibits. all the witnesses and the trial, physical of the phases that instruction: court then reiterated The includes the to be considered by you that. The evidence I want to repeat all witnesses and all trial, of the the physical at both material presented phases exhibits. incor acknowledges those instructions were majority though again, at 648. Yet 699 A.2d rect. Ante because, majority harmless, time majority this finds the error jurors attention to the notes, properly directed the prosecutor evidence. relevant in relation to viewed as harmless

Certainly, this error cannot be out, c(4)(f) prosecutor previously pointed factor. As 210-212, supra at wrong discussion argued the evidence. See error, majority attempts dismissing In A.2d at 641-642. “[a]ny jury that instruction to the rely the trial court’s on to conceal the murder taken the defendant evidence of actions Ante at prove aggravating this factor.” used to itself cannot be way the error. That comment no rectified 699 A.2d at 649. jurors court directed the majority point to where the can the Nor fact, they properly consider. could to what evidence they support jurors told could consider were evidence evidence, e(4)(f) prosecutor. That by the factor was that noted *158 however, murder, up attempts to cover the concerning defendant’s

313 support 210-212, could not be used to Supra the factor. at fact, Despite A.2d at 641-642. majority that the holds that “[t]he instructions, against background court’s when viewed the of the summation, prosecutor’s sufficiently jury informed the of the concerning aggravating evidence the factors.” Ante at A.2d at improper charge against 651. When the is “viewed the background prosecutor’s [improper misleading] summa tion,” rationally one cannot conclude that the in the charge error was harmless.

C. I, Harvey supra, In at N.J. 581 A.2d this Court took pains prosecutor advise any that at reference retrial to the hair at found the crime scene should not include the informa tion pubic the hair was a hair. The Court observed that might chest, head, “[w]hether it have from come his his or his pubis is allegations irrelevant the absence of of a sexual encounter. retrial prosecution On should refrain from refer ” ring ‘pubic to the as a Despite hair hair.’ Ibid. warning, prosecutor elicited investigator pubic comments from his that “a victim, hair control” was taken from investigator and the testified that he had “[p]ubie sample also obtained hair from the sus—’’before he was interrupted. Although the Court claims that “[t]he State never in Schnaps’s characterized the hair found apartment public hair,” 646, I as a at ante A.2d credit jury being logical with able to draw inference that if the public State obtained hair from samples the victim and the sus pect, then comparison the State intended to use those samples pubic addition, with a hair found at or near the scene. noted, investigator prosecutor highlighted probability and the diagram, in a police that the recovered as from the evidence scene “pair light gray panties Lastly, out inside with stains.” investigator “oral, vaginal, testified that and anal swabs [were] taken victim autopsy.” from the at the time *159 314 place trial. no in this sexual had

Those innuendos of assault certainly no such of assault allegation no sexual There was that against The hints of sexual assault charge defendant. capital-murder trial injected into this purposefully prosecutor erroneous, prior ruling, bordered because of our but were gleaned can from prosecutor’s intent be contemptuous. The on diagram included trial. The diagram prepared he and used at forty as evidence. One only eight of than items seized more The items —the panties. was the other eight highlighted items box, empty jewelry case— open pocketbook, the empty watch relevance, marginally at panties were best clear while had substantially inflammatory. more relevant such an Although, normally, I content to find that would be harmless, especially of the trial court’s instruc- was because error counsel, objections I cannot of from defense tions and dearth already in prosecutor here we have warned the find so because very same about this same evidence. this case

D. juries of capital that should be informed I continue maintain they if period ineligibility that defendants face parole the actual of I, imprisonment instead of death. See are sentenced to life Loftin (Handler, J., 420-31, dissenting); 680 supra, 146 N.J. at A.2d 677 Carolina, S.Ct. see Simmons v. South 512 U.S. (1994). jury erroneously The was informed

L.Ed.2d 133 here eligible prosecutor in 2014. parole for The defendant would be they jurors asked whether felt was “sufficient even punishment.” here, had imposition to the sentence defendant

Prior sixty-five years with aggregate accumulated an sentence offense. thirty-two-and-a-half year parole for several unrelated bar Furthermore, be- prior would be extended defendant’s sentence way no that defendant parole. of his violation of There was cause anytime or soon thereafter. going paroled be was majority finds that there was no error in falsely informing jury paroled defendant could be majority 2014. The prosecutor that the reasons unable discuss defendant’s true prospects parole for jury because he could not inform the prior Ante defendant’s 699 A.2d at convictions. 652. Although impermissible it would be jury to inform the of defen convictions, prior dant’s informing jury that defendant would *160 prison long die in he before even the for opportunity parole had jury would not tell the that defendant had those convictions. capital sentencing Our premised scheme is on principle the juries must be legal informed of the effect findings. of their Mejia, supra, II, N.J. at 141 Bey supra, (citing A.2d 164-435, 887). N.J. 548 A.2d Misleading jury the on points way material in a detrimental to the defendant cannot satisfy the constitutional demands capital-punishment of a valid jury The scheme. should have been told that defendant would eligible never parole. be for

Conclusion comes, I have little doubt that when the time this case will eventually by be reversed either Court this or a federal court. grave The errors are so and the of defense so efforts counsel futile that an ineffective assistance of claim líe. I counsel must have reluctantly highlighted only some of I fear the errors here. someday some court use this as will dissent those evidence issues raised were either below or us and before were addressed by the Court. The Court’s consideration and treatment of the issues, however, lacking meager is justify too and to that conclu- sion. Because of the of appellate ineffective efforts both trial and counsel, defense most of the not in dealt issues were fact with. However, scrupulous may review of the record reveal a few of them, by if our impaired even discussion is the failure process. Fortunately, majority adversarial recognizes at least in questions numerous deficiencies and record raised preserves this DNA and statistical evidence and it issue for those post-conviction relief. however, Court, wrong aside the errors and

The is brush Harvey on cannot be executed postpone the inevitable. Nathaniel Despite length majority’s the basis of this record. analysis is unbalanced uncritical. Court opinion, its so much caring expends it appears and conscientious because review, but, actuality, in that effort is energy appellate in its result, insupportable misspent to confirm an death sentence. means seal opinion principled and should not be the I the death of this defendant. dissent. O’HERN, opinion judgment in concurs

Justice except respect II He with to Part thereof. would therefore Court except convictions insofar as the conviction of murder affirm the Two, eligibility. joins Part I of establishes death He Section opinion on the issue of a non-unanimous verdict. Justice Handler’s POLLOCK, GARIBALDI, For STEIN affirmance —Justices and COLEMAN —4. part; part

For reversal affirmance for —Justice O’HERN —1.

For reversal—Justice HANDLER —1.

699 A.2d 694 CARUSO, IN THE MATTER OF RICHARD D. AN ATTORNEY AT LAW. September 1997. ORDER 29, 1997, April Disciplinary having Review Board on filed concluding D. with the Court its decision that RICHARD CARU- BRICK, SO who was admitted to bar this State the notes “three publications, at 627-628. As for 40, 611, 103, (1988); Davis, Gerald, N.J. 549 A .2d 792 State v. 96 N.J. State v. 113 621-23, (1984). 477 A .2d 308 exculpates of evidence that Nor is a lower hurdle for admission scientific previously suggested possibility. has such a defendant a novel idea. This Court Windmere, 373, 405, voiceprint supra, N.J. 522 A.2d the Court noted that In 105 identification, by a criminal trial while not admissible when offered the State in guilt, person eliminate a as the evidence of "is at least a reliable method to as 5, 383, 405; speaker." n. 522 Id. at 522 A.2d see also id. at 383 unidentified Prudden, 608, 617, ("Similarly, N.J.Super. v. 212 515 A.2d 1260 A.2d 405 in State court, rejecting footprint techniques (App.Div.1986), of to the while the use defendant, identify recognized techniques the were nevertheless sufficient Davis, guilty party."). generally supra, ly person exclude a as the See reliable to 621, ("We recognized proof may that standards of 96 N.J. at 477 A.2d 308 have 66, context.") Romano, litigational (citing supra, vary depending upon the 96 N.J. Revocation, 550, 1; (1982)); N.J. 449 A.2d 7 State 474 A.2d In re Polk License 90 68, 98-99, Millett, (App.Div.1994) (recognizing N.J.Super. 639 A.2d 352 v. 272 may present proof has a defendant evidence "if offered that a criminal tendency engender respect with to an essential rational a reasonable doubt 179, Sturdivant, 165, case") (citing State v. 31 N.J. 155 A.2d feature of the State's denied, (1960)); (1959), 4 873 David cert. 362 U.S. 80 S.Ct. L.Ed.2d McCord, Perry Easy!: Admissibility But Made It Look So Evidence Mason of Guilty, by Suggest that SomeoneElse Is 63 Tenn. a Criminal Offered Defendant (1996) admissibility (advocating in such circum L.Rev. 917 lower standard stances). dot-intensity analysis.” articles discuss Ante at A .2d at Although majority 627. claims that one those “[n]ot [of unreliable,” ibid., dot-intensity analysis articles] states that is even any actually implies it does claim that articles states or dot-intensity analysis category is in fact reliable. judicial opinions, majority say single the best can that a Hampshire, utilizing district federal court New lenient more standard, “recently accepted premise federal as ... reliable underlying interpretive this method.” Ante at 699 A.2d at added). (emphasis ambiguous opinion One tendered witness, off-topic publications State’s three that make mention of technique, equivocal up and one bit of do not dicta add general acceptance.

notes “the DQ Alpha application dot-intensity analysis to the results of the test,” support at 699 A.2d at then —without ante —it work, not changes by saying analysis that such does ante its tune 189-198, to speculate A.2d at We are forced at 631-632. analysis DQ- dot-intensity works on either the whether or not polymarker testing strips, Alpha testing strips or on the because reliability its and to there is insufficient evidence establish support general acceptance technique of the on either of the inconsistency simply by testing majority kits. evades analysis deciding dot-intensity or works on the that whether analysis DQ-Alpha general acceptance is irrelevant to its analysis majority correctly dot-intensity probes. of the PM As the however, factually out, DQ-Alpha procedure points testing testing procedure. Ante at polymarker similar to the Nothing suggests slight record A.2d 617. testing testing DQ-Alpha polymarker differences between dot-intensity analysis. would affect Moreover, during pretrial Dr. acknowledged as Word hearing, DQ-Alpha using testing marker was retested PM Shea, F.Supp. strips. also United States v. See

notes “mixtures interpreted can be identified and based on relative dot intensities” study certain Id. at circumstances. 706. That is the on any analysis loci to dot-intensity conclude that can interpret, and just identify, support mixtures. The for concluding that dot- intensity differences on DQ-Alpha probes matter is much stronger than support majority’s for the conclusion that dot- polymarker matter on probes. intensities bias majority’s reading starkly of the authorities is evident.