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Perhaps the most significant advance in criminal investigation
since the advent of fingerprint identification is the use of DNA
technology to help convict criminals or eliminate persons as
suspects. DNA analyses on saliva, skin tissue, blood, hair,
and semen can now be reliably used to link criminals to crimes.
Increasingly accepted during the past 10 years, DNA technology is now
widely used by police, prosecutors, defense counsel, and
courts in the United States.
An authoritative study on the forensic uses of DNA,conducted by
the National Research Council of the National Academy of Sciences, has
noted that:
...the reliability of DNA evidence will permit it to exonerate
some people who would have been wrongfully accused or convicted
without it.
Therefore, DNA identification is not only a way of
securing convictions; it is also a way of excluding
suspects who might otherwise be falsely charged
with and convicted of serious crimes.5
Forensic use of DNA technology in criminal cases began in 1986
when police asked Dr. Alec J. Jeffreys (who coined the term
"DNA fingerprints" 6) of Leicester University (England) to verify a
suspect's confession that he was responsible for
two rape-murders in the English Midlands.7 Tests
proved that the suspect had not committed the
crimes. Police then began obtaining blood samples
from several thousand male inhabitants in the area
to identify a new suspect.8 In a 1987 case in
England, Robert Melias became the first person
convicted of a crime (rape) on the basis of DNA
evidence.9
In one of the first uses of DNA in a criminal case
in the United States, in November 1987, the Circuit
Court in Orange County, Florida, convicted Tommy
Lee Andrews of rape after DNA tests matched his DNA
from a blood sample with that of semen traces found
in a rape victim.10
Two other important early cases involving DNA testing are State
v. Woodall 11 and Spencer v. Commonwealth 12. In Woodall, the West
Virginia Supreme Court was the first State high court to rule
on the admissibility of DNA evidence. The court accepted DNA testing
by the defendant, but inconclusive results failed to exculpate
Woodall. The court upheld the defendant's conviction
for rape, kidnaping, and robbery of two women. Subsequent
DNA testing determined that Woodall was innocent, and he was released
from prison (see the case profile in chapter IV for more
details).
The multiple murder trials in Virginia of Timothy
Wilson Spencer were the first cases in the United
States where the admission of DNA evidence led to
guilty verdicts resulting in a death penalty. The
Virginia Supreme Court upheld the murder and rape
convictions of Spencer, who had been convicted on
the basis of DNA testing that matched his DNA with
that of semen found in several victims. In Spencer,
the defendant's attack upon the introduction of DNA
evidence was limited to the contention that its
novelty should lead the court to "hold off until
another day any decision..."13 There was no testimony
from expert witnesses that challenged the general
acceptance of DNA testing among the scientific
community.14
The first case that seriously challenged a DNA
profile's admissibility was People v. Castro;15 the New
York Supreme Court, in a 12-week pretrial hearing, exhaustively
examined numerous issues relating to the admissibility of DNA
evidence. Jose Castro was accused of murdering his neighbor and
her 2-year-old daughter. A bloodstain on Castro'swatch
was analyzed for a match to the victim. The court held the
following:
o DNA identification theory and practice are generally accepted
among the scientific community.
o DNA forensic identification techniques are generally accepted by
the scientific community.
o Pretrial hearings are required to determine whether the testing
laboratory's methodology was substantially in accord with
scientific standards and produced reliable results for jury
consideration.
The Castro ruling supports the proposition that DNA identification
evidence of exclusion is more presumptively admissible than DNA
identification evidence of inclusion. In Castro, the court ruled
that DNA tests could be used to show that blood on
Castro's watch was not his, but tests could not be used
to show that the blood was that of his victims.
In Castro, the court also recommended extensive discovery
requirements for future proceedings,including copies of all
laboratory results and reports; explanation of statistical
probability calculations; explanations for any observed defects
or laboratory errors, including observed contaminants; and chain
of custody of documents. These recommendations soon were expanded
upon by the Minnesota Supreme Court, in Schwartz v.State,16 which noted,
"...ideally, a defendant should
be provided with the actual DNA sample(s) in order
to reproduce the results. As a practical matter,
this may not be possible because forensic samples
are often so small that the entire sample is used
in testing. Consequently, access to the data,
methodology, and actual results is crucial...for an
independent expert review."17
In Schwartz, the Supreme Court of Minnesota refusedto admit
the DNA evidence analyzed by a private forensic laboratory; the court
noted the laboratory did not comply with appropriate standards
and controls. In particular, the court was troubled by
failure of the laboratory to reveal its underlying population data
and testing methods. Such secrecy precluded replication of the
test.
In summary, courts have successfully challenged improper
application of DNA scientific techniquesto particular cases,
especially when used to declare "matches" based on
frequency estimates. However, DNA testing properly applied is
generally accepted as admissible under Frye 18 or Daubert 19
standards.20 As stated in the National Research Council's
1996 report on DNA evidence, "The state of the profiling
technology and the methods for estimating frequencies and related
statistics have progressed to the point where the admissibility
of properly collected and analyzed DNA data should not be in
doubt."21 At this time, 46 States admit DNA evidence in
criminal proceedings. In 43 States,courts have ruled on the
technology, and in 3 States, statutes require admission (see exhibit
1).
Exhibit 1. DNA Evidence Admission in Criminal
Trials by State
| State | DNA Admitted |
| Alabama | Yes |
| Alaska | Yes |
| Arizona | Yes |
| Arkansas | Yes |
| California | Yes* |
| Colorado | Yes |
| Connecticut | Yes |
| Delaware | Yes |
| Florida | Yes |
| Georgia | Yes |
| Hawaii | Yes |
| Idaho | Yes |
| Illinois | Yes* |
| Indiana | Yes |
| Iowa | Yes |
| Kansas | Yes |
| Kentucky | Yes |
| Louisiana | Yes |
| Maine | No |
| Maryland | Yes* |
| Massachusetts | Yes |
| Michigan | Yes |
| Minnesota | Yes |
| Mississippi | Yes |
| Missouri | Yes |
| Montana | Yes |
| Nebraska | Yes |
| Nevada | Statute |
| New Hampshire | Yes |
| New Jersey | Yes* |
| New Mexico | Yes |
| New York | Yes |
| North Carolina | Yes |
| North Dakota | No |
| Ohio | Yes |
| Oklahoma | Statute |
| Oregon | Yes |
| Pennsylvania | Yes |
| Rhode Island | No |
| South Carolina | Yes |
| South Dakota | Yes |
| Tennessee | Statute |
| Texas | Yes |
| Utah | No |
| Vermont | Yes |
| Virginia | Yes |
| Washington | Yes |
| West Virginia | Yes |
| Wisconsin | Yes |
| Wyoming | Yes |
* Decision by Intermediate Court of Appeals
Notes
1. "Science is the search for truth--it is not a
game in which one tries to beat his opponent, to do harm to
others."--Linus Pauling, 1958. Cited in Beck, Emily Morison
(ed.), Familiar Quotations,Boston: Little, Brown and Company,
1980.
2. Keynote address by Attorney General Janet Renobefore
the American Academy of Forensic Sciences,Nashville, Tennessee,
February 21, 1996.
3. For articles debating the forensic use of DNA
technology, see Thompson, William, "Evaluating the
Admissibility of New Genetic Identification Tests:
Lessons from the DNA War," The Journal of Criminal Law
& Criminology, 84, 1 (1993):22-104; Harmon,Rockne,
"Legal Criticisms of DNA Typing: Where'sthe
Beef?" The Journal of Criminal Law &Criminology, 84, 1
(1993):175-188; and Neufeld,Peter, "Have You No Sense of
Decency?" The Journal of Criminal Law & Criminology, 84,
1 (1993):189-202.
4. The study's results have been reviewed by many
persons, including those involved in a peer review process. To
date, no one has identified additional cases that, as of the
study's completion in February 1996, are the type examined in
this report.
5. National Research Council, National Academy of
Sciences, DNA Technology in Forensic Science, Washington, D.C.:
National Academy Press, 1992:156.
(Cited as NRC report.) Another reference source is
McKenna, Judith, J. Cecil, and P. Coukos,
"Reference Guide on Forensic DNA Evidence,"
Reference Manual on Scientific Evidence, FederalJudicial Center (1994).
This guide has a usefulglossary of
terms at p. 323.
6. Jeffreys, Alec J., Victoria Wilson, and Swee Lay
Thein, "Hypervariable `Minisatellite' Regions
in Human Nature," Nature, 314 (1985):67;
"Individual-Specific `Fingerprints' of Human DNA,"
Nature, 316 (1985):76.
7. The first reported use of DNA identification was in a
noncriminal setting to prove a familial relationship. A Ghanaian boy
was refused entry into the United Kingdom (U.K.) for lack of proof
that he was the son of a woman who had the right of
settlement in the U.K. Immigration authorities contended that the
boy could be the nephew of the woman, not her son. DNA testing showed
a high probability of a mother-son relationship. The U.K.
Government accepted the test findings and admitted the boy. See
Kelly, K.F, J.J. Rankin, and R.C. Wink, "Methods and
Applications of DNA Fingerprinting: A Guide for the
Non-Scientist," Criminal Law Review (1987):105, 108; Note,
"Stemming the DNA Tide; A Case for Quality Control
Guidelines," Hamline Law Review, 16 (1992):211,
213-214.
8. Gill, Peter, Alec J. Jeffreys, and David J.
Werrett, "Forensic Application of DNA
Fingerprints," Nature, 318 (1985):577. See also Seton,
Craig, "Life for Sex Killer Who Sent Decoyto Take Genetic
Test," The Times (London) (January 23, 1988):3. A popular
account of this case, The Blooding, was written by crime novelist
Joseph Wambaugh, New York, N.Y.: William Morrow & Co.,
Inc., 1989.
9. Bureau of Justice Statistics, "Forensic DNA
Analysis: Issues," Washington, D.C.: U.S. Department of
Justice, Bureau of JusticeStatistics, June 1991, at 4, note
8.
10. The admissibility of the DNA evidence was upheld by
the intermediate appeals court, which cited the uncontroverted
testimony of the State's expert witnesses. State v. Andrews,
533 So.2d 841(Dist. Ct. App. 1989). See also Office of
Technology Assessment, Congress of the UnitedStates, Genetic
Witness: Forensic Uses of DNATests, Washington, D.C.: July
1990.
11. 385 S.E.2d 253 (W. Va. 1989).
12. 384 S.E.2d 775 (1989). Additional court appeals by
Spencer were rejected by the Virginia Supreme Court at 384 S.E.2d 785
(1989); 385 S.E.2d 850(1989); and 393 S.E.2d 609 (1990).
13. Supra note 12 at 783.
14. Id., at 797.
15. 545 N.Y.S.2d 985 (Sup. Ct. 1989). Castro's case
was never tried. He pleaded guilty to the murders in late
1989.
16. Schwartz v. State, 447 N.W.2d 422 (1989).
17. Id., at 427. The Minnesota Supreme Court further held
that the use of statistical probabilities testimony should be limited
because of its potential for prejudicing the jury. Id., at
428. The opinion was later modified in State v. Bloom, 516 N.W.2d
159 (1994).
18. Frye v. United States, 293 F. 1013 (D.C. Cir.
1923). The test for the admissibility of novel scientific evidence
enunciated in this case has been the most frequently invoked one in
American case law. To be admissible, scientific evidence must
be "sufficiently established to have gained general
acceptance in the particular field in which it belongs."
19. Daubert v. Merrell Dow Pharmaceuticals, Inc.,113
S.Ct. 2786 (1993). The Supreme Court used this civil case to
articulate new standards forinterpreting the admissibility of
scientific evidence under the Federal rules of evidence. This
standard, while encompassing Frye, allows a court to expand its
examination to include other indicia of reliability, including
publications, peer review, known error rate, and more. The court
also should consider factors that might prejudice or mislead
the jury. For the application of Daubert to DNA technology, see Sheck,
Barry, "DNA and Daubert," Cardozo Law Review, 15
(1994):1959.
20. This brief overview is not a treatise on DNA evidence
admissibility in criminal cases. For more authoritative articles, see,
Thompson, supra note3; Kaye, D.H., "The Forensic Debut of
the NationalResearch Council's DNA Report: Population
Structure, Ceiling Frequencies and the Need for Numbers,"
Jurimetrics Journal, 34, 4 (1994):369-382; Comments, "Admissibility of
DNA Statistical Data: A Proliferation of Misconception,"
CaliforniaWestern Law Review, 30 (1993):145-178.
21. National Research Council, National Academy of
Sciences, The Evaluation of Forensic DNA Evidence(prepublication
copy), Washington, D.C.: National Academy Press, 1996:2.14.
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