DNA Evidence Current Legal Issues

1. DNA EvidenceCurrent Legal Issues Ted R. Hunt Chief Trial Attorney Jackson County, Prosecutor’s Office

2. State of the ArtDNA Technologies

3. 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)

4. 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)

5. 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)

6. 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 Examiner’s lab (OCME)

7. 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

8. 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

9. DNA in Context

10. DNA MATCH: AVAILABLE INFERENCES

11. 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

12. 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)

13. 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)

14. 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)

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

16. DNA in Context • “[W]here, as here, DNA material found in a location [under the victim’s 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)

17. DNA in Context • Victim’s 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 • Defendant’s 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)

18. Spoliation/Consumption of DNA Evidence

19. 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)

20. 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.”

21. 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)

22. Defense Access to CODIS?SDIS/NDIS

23. Access to SDIS • Section 650.055.6 • SDIS records are “closed records” under Chapter 610, except: • Peace officers • Attorney general

24. 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”

25. 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, whoshall 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

26. 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 statecourt order • Changes since Rivera

27. Access to NDISIncoming Data 1. The DNA data must be generated in accordance with the FBI Director’s 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 Director’s 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;

28. 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

29. Surrogate Testimonyin DNA Cases

30. 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. NewMexico,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)

31. 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.”)

32. 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.’”)

33. 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

34. 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 analyst’s opinion

35. 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)

36. Defense Retesting

37. Defense DNA Retesting • “A wrongly accused person’s 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)

38. 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.”

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

40. 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

41. DNA Discovery

42. 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)

43. 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)

44. Electronic Discovery • Defendant’s constitutional rights were not violated by (KCPD) crime lab’s 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.)

45. 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))

46. 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))

47. 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

48. thunt@jacksongov.org