DNA Evidence Current Legal Issues

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DNA EvidenceCurrent Legal Issues

• Ted R. Hunt
• Chief Trial Attorney
• Jackson County, Prosecutors Office

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State of the ArtDNA Technologies
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The STR Process

• Collection of sample by police or lab official
• Extraction breaking DNA out of cell
  nucleus/separation of male/female contributors
• Quantitation measurement of DNA present in
  sample
• Amplification copying locations of interest (13
  core loci)
• Detection identification and sizing of DNA
  fragments
• Interpretation expert analysis and conclusions
  regarding data produced by testing process
  (includes technical review by second analyst)

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STR Testing

• Analytical target DNA inside nucleus of cell
• Blood, semen, saliva, skin tissue, perspiration
• Small sample sizes - results possible from less
  than 1 ng. sample
• Works well with moderately degraded samples
• High power of discrimination profile rarity in
  trillions, quadrillions, quintillions are common
• Kits Identifiler (Applied Biosystems)
  PowerPlex 16 (Promega)

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Mini STR Testing

• Designed for detection of highly degraded nuclear
  DNA samples
• Smaller amplicon product generated than with
  conventional STR kits
• Can be difficult to interpret results, depending
  on sample quality/quantity
• Kits MiniFiler (Applied Biosystems)

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Low Copy Number DNA Testing(LCN) (STR)

• Designed for very low level DNA analysis
• Typically refers to less than 100 pg. of DNA or
  about 15 cells
• Touch DNA
• Investigative leads
• Difficult to interpret results due to low sample
  levels
• Threat of contamination due to low sample levels
• Utilized by N.Y.C. Office of the Chief Medical
  Examiners lab (OCME)

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Y-STR Testing

• Y Chromosome inherited from father to son only
• Only markers on Y Chromosome analyzed
• Works well for detecting male contributor in
  male/female mixtures where male DNA masked by
  higher quantity of female DNA
• Statistical weight of match less discriminating
  than conventional STR testing due to en bloc
  inheritance of Y chromosome - father to son (no
  genetic recombination)
• Test kits Yfiler (Applied Biosystems)
  PowerPlex Y (Promega)
• Utilized by private labs and public crime labs

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Mitochondrial DNA TestingMtDNA

• Mitochondria maternally inherited from mother
  to son and daughter
• MtDNA outside cellular nucleus hundreds of
  copies of MtDNA vs. 2 for nuclear DNA (1 allele
  from each parent)
• Bones, teeth, hair shafts highly degraded
  samples
• MtDNA sequenced vs. detecting number of short
  tandem repeats with STR testing
• Low power of discrimination due to en bloc
  maternal inheritance (no genetic recombination)
• Utilized by certain private labs FBI

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DNA in Context
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DNA MATCH AVAILABLE INFERENCES
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Levels of Evidentiary Context

• Level I Circumstances surrounding the item
• Level II Information provided by the victim,
  witness, or suspect relative to the item
• Level III DNA test results statistical weight
  attached to testing conclusions

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Levels of Evidentiary Context

• 1. The contextual surroundings of the item at
  crime scene
• (CSI)
• 2. Extrinsic information Suspect witness
  statements relative to item
• (Detective)
• 3. Testing conclusion and statistical frequency
  of item
• (Crime Lab)

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Level I Situational Circumstances

• 1. Environment (open or closed)
• 2. Native/foreign (to the crime scene
  environment)
• 3. Nature (type of item, article, substance)
• 4. Location (relative to other relevant persons,
  places, items, articles, substances)
• 5. Relation (direct or inferred connection
  between relevant persons, places, items,
  articles, substances)

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Level I Situational Circumstances

• 6. Action (inference of movement, force,
  velocity)
• 7. Quantity (abundance/scarcity)
• 8. Rarity (commonality/infrequency)
• 9. Portability (transferability of item,
  article, substance)
• 10. Condition (inference about length of time
  item, article, or substance has been at crime
  scene based on its external and internal
  characteristics)

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DNA in Context

• Despite it transferability, the DNA evidence,
  taken in context, including its location on a
  piece of tissue underneath the victims body,
  along with other corroborative and consistent
  partial profiles on pantyhose found or the
  victims body, in addition to the absence of
  evidence supporting defendants unlikely
  transfer theory, provided sufficient evidence to
  support the jurys verdict
• State v. Freeman, 269 S.W.3d 422 (Mo. banc 2008)

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DNA in Context

• Where, as here, DNA material found in a
  location under the victims fingernail,
  quantity 416 ng., and type inconsistent with
  casual contact fingernail torn evidence of a
  struggle and there is a one in one quintillion
  likelihood that someone else was the source of
  the material, the evidence is legally sufficient
  to support a guilty verdict.
• State v. Abdelmalik, 273 S.W.3d 61 (Mo. App. W.D.
  2008)

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DNA in Context

• Victims location (GS wound to head/victim under
  bridge/industrial area)
• Condition (not fully clothed in 26 degree
  temperatures)
• Blood from GSW pooled between discovery and
  police arrival
• Inferred absence of post-mortem mobility (semen
  on buttock had not gravitated down leg)
• DNA match to defendant
• Defendants denial of 1) consensual sex with
  victim or 2) having been at crime scene
• Supported reasonable inference that sex death
  happened closely in time and supported guilty
  verdict
• State v. Calhoun, 259 S.W.3d 53 (Mo. App. W.D.
  2008)

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Spoliation/Consumption of DNA Evidence
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Spoliation/Consumption

• In cases where the testing agency finds it
  necessary to consume the only sample of evidence
  in the testing procedure, admission of the test
  results does not violate due process in the
  absence of bad faith on the part of the state.
• State v. Ferguson, 20 S.W.3d 485, 496 (Mo. banc
  2000) (DNA death penalty case)

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Spoliation/Consumption

• ABA standard 3.4 (a) When possible, a portion of
  the DNA evidence tested and, when possible, a
  portion of any extract from the DNA evidence
  should be preserved for further testing.
• FBI DNA STANDARD 7.2 Where possible, the
  laboratory shall retain or return a portion of
  the evidence sample or extract.

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Spoliation/Consumption

• State v. Ferguson, 20 S.W.3d 485 (Mo. banc 2000)
• State v. Willers, 794 S.W.2d 315 (Mo. App. 1990)
• State v. Hanson, 684 S.W.2d 337 (Mo. App. 1984)
• State v. Lowrance, 619 S.W.2d 354 (Mo. App. 1981)
• State v. Sprout, 365 S.W.2d 572 (Mo. 1963)

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Defense Access to CODIS? SDIS/NDIS
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Access to SDIS

• Section 650.055.6
• SDIS records are closed records under Chapter
  610, except
• Peace officers
• Attorney general

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Access to SDIS

• Prosecutors
• The individual whose DNA sample has been
  collected, or his or her attorney (access to
  specimen ID , genetic profile, bio sample only)
• Judges
• No statutory authorization for keyboard search

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Access to NDIS

• 42 U.S.C. 14132(b)(3)
• Criminal justice agencies for law enforcement
  purposes
• Judicial proceedings
• for criminal defense purposes, to a defendant,
  who shall have access to samples and analyses
  performed in connection with the case in which
  such defendant is charged (no statutory
  authorization for a keyboard search)
• Population statistics databases, identification
  research, protocol development, quality control

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Access to NDIS

• Rivera v. Mueller, 596 F.Supp.2d 1163 (N.D. Ill.
  2009) FBI ordered to proceed with a manual CODIS
  keyboard search comparing DNA profile developed
  by (unaccredited) private lab from semen sample
  to known offender profiles contained within NDIS
  based on state court order
• Changes since Rivera

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Access to NDISIncoming Data

• 1. The DNA data must be generated in accordance
  with the FBI Directors Quality Assurance
  Standards
• 2. The DNA data must be generated by a laboratory
  that is accredited by an approved accrediting
  agency
• 3. The DNA data must be generated by a laboratory
  that undergoes an external audit every two years
  to demonstrate compliance with the FBI Directors
  Quality Assurance Standards
• 4. The DNA data must be one of the categories of
  data acceptable at NDIS, such as convicted
  offender, arrestee, detainee, legal, forensic
  (casework), unidentified human remains, missing
  person or a relative of missing person

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Access to NDISIncoming Data

• 5. The DNA data must meet minimum loci
  requirements for the specimen category
• 6. The DNA PCR data must be generated using PCR
  accepted kits and
• 7. Participating laboratories must have and
  follow expungement procedures in accordance with
  federal law
• 8. Request must be initiated by SDIS custodian
  1) exigent investigative circumstances 2)
  minimal of loci

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Surrogate Testimonyin DNA Cases
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U.S. Supreme Court Cases

• Crawford v. Washington, 541 U.S. 36 (2004)
  (confrontation requires testify witness (who
  offers testimonial statements) to be present at
  trial, or defendant must have had prior
  opportunity for confrontation
• Melendez-Diaz v. Massachusetts,129 S.Ct. 2527
  (2009) (affidavit of drug results admitted, no
  analyst testified confrontation violated
  reversed)
• Bullcoming v. New Mexico,131 S.Ct. 2705 (2011)
  (certified report admitted, non-testing analyst
  reported results at trial confrontation
  violated reversed)
• People v. Williams, 939 N.E.2d 268 (Ill. 2010)
  (pending before U.S. Supreme Court this term)
  (DNA analyst who did not perform technical aspect
  of testing but reviewed and interpreted test
  data, testified at trial affirmed by Illinois
  Supreme Court)

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Legal Path to Admissibility

• State v. Walkup, 290 S.W.3d 764 (Mo. App. W.D.
  2009) (autopsy testimony) (Dudley was entitled
  to rely upon the factual information contained in
  the autopsy report and photographs, scene
  investigation reports, the toxicology report, and
  body diagrams as support for her opinions because
  she testified those materials are reasonably
  relied upon by other experts in the field of
  forensic pathology.)

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Legal Path to Admissibility

• State v. Haslett, 283 S.W.3d 769 (Mo. App. S.D.
  2009) (autopsy testimony) (The State did not
  move to introduce the autopsy report into
  evidence and Dr. Anderson only testified as to
  his own opinions and conclusions drawn from
  various medical sources and photographs.
  Generally, an expert may rely on hearsay
  evidence as support for opinions, as long as that
  evidence is of a type reasonably relied upon by
  other experts in the field such evidence need
  not be independently admissible.)

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Legal Path to Admissibility

• Johnson v. Clements,344 S.W.3d 253 (Mo. App. E.D.
  2011) (lab manager properly testified to results
  of urine test when she oversaw all testing
  procedures and was the final reviewer of the
  results despite the fact that she did not
  personally perform the testing procedures
  confrontation not violated)
• Court relied on Melendez-Diaz, fn. 1

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Factual Path to Admissibility

• Detailed documentation raw data included in
  case record
• Detailed technical review, including reanalysis
  of entire case record, including all raw data
  testifying analyst (materials reasonably relied
  upon by experts in the field)
• Specificity of trial record made by prosecutor
  analyst regarding materials reviewed fact of
  independent basis for testifying analysts
  opinion

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Factual Path to Admissibility

• Independent opinion testimony by testifying
  expert regarding analysis, interpretation,
  opinions, conclusions of the case data
• The prosecutor should not introduce the lab
  report of a non-testifying expert
• The analyst should not refer to the opinion of a
  non-testifying expert or parrot those findings
• Note testimonial statements can be used for
  non-testimonial purposes (providing an
  informational foundation for expert opinion)

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Defense Retesting
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Defense DNA Retesting

• A wrongly accused persons best insurance
  against the possibility of being falsely
  incriminated is the opportunity to have the
  testing repeated. Such an opportunity should be
  provided whenever possible.
• National Research Council Report on the
  Evaluation of Forensic DNA Evidence 87 (1996)

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Defense Consumption

• ABA Standard 3.4 Consumptive Testing
• (d) Before approving a test that entirely
  consumes DNA evidence or the extract from it, the
  attorney for any defendant against whom an
  accusatorial instrument has been filed, or for
  any other person who intends to conduct such a
  test, should provide the prosecutor an
  opportunity to object and move for an appropriate
  court order.

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Stipulations

• Written retesting agreement incorporated into
  court order
• Accredited lab
• Sample split
• Scientifically acceptable transfer
  methods/conditions
• Only expert-to-expert transfers of evidence

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Stipulations

• Unnecessary consumption precluded
• Return of unused sample, extract, amped DNA to
  custodian lab by date certain
• Address all chain of custody concerns/requirements
  
• Incorporate stips into scheduling order

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DNA Discovery
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Scope of Discovery

• In criminal cases there is no general right of
  discovery and the only disclosure that must be
  provided to a criminal defendant is that required
  under Rule 25 pertaining to discovery in criminal
  cases
• State v. Jaco, 156 S.W.3d 775 (Mo. banc 2005)

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Scope of Discovery

• Rule 25.03 does not require the state to
  summarize the evidence in a case for the
  defendant - State v. Enke, 891 S.W.2d 134 (Mo.
  App. 1994)
• The contents of discoverable material need not be
  displayed in a particular format, so long as
  those contents are disclosed State v. Gill, 300
  S.W.3d 225 (Mo. banc 2009)

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Electronic Discovery

• Defendants constitutional rights were not
  violated by (KCPD) crime labs refusal to provide
  printed copies of DNA electropherograms when he
  was provided a zip drive containing all case
  data, including electronic version of e-grams.
  Printed e-grams contained no exculpatory evidence
  not available on zip drive.
• McIntyre v. McKune, 2011 WL 686120 (D. Kan.)

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Electronic Discovery

• There is no clearly established constitutional
  right to non-exculpatory discovery
• McIntyre, at p. 27 (citing Wilson v. Sirmons, 536
  F.3d 1064, 1103 (10th Cir. 2008))

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Electronic Discovery

• The Sixth Amendment right to cross examine an
  adverse witness does not include the power to
  require pretrial disclosure of any and all
  information that might be useful in contradicting
  unfavorable testimony
• McIntyre, at p. 27 (citing Chambers v.
  Mississippi, 410 U.S. 284, 294 (1973)
  Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987))

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Voluminous Non Case-Specific DNA Discovery

• Supreme Court Rule 25.07 Manner of Making
  Disclosures
• In a manner agreed to by state and defendant
• By notice that the material and information may
  be inspected, obtained, tested, copied, or
  photographed
• At a specified time and place
• At suitable facilities

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thunt_at_jacksongov.org