DNA Evidence
Current Legal Issues
Ted R. Hunt
Chief Trial Attorney
Jackson County, Prosecutor’s
Office
State of the Art
DNA Technologies
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)
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)
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)
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)
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
Mitochondrial DNA Testing
MtDNA
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
DNA in Context
DNA MATCH: AVAILABLE INFERENCES
GUILT
CONSENSUAL
OR
EXPLAINABLE
TESTING =
UNRELIABLE
DNA
PLANTED
CONTAMINATION
TRANSFERED
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
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)
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)
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)
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)
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)
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)
Spoliation/Consumption of
DNA Evidence
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)
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.”
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)
Defense Access to CODIS?
SDIS/NDIS
Access to SDIS
Section 650.055.6
SDIS records are “closed records” under
Chapter 610, except:
Peace officers
Attorney general
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”
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
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
Access to NDIS
Incoming 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;
Access to NDIS
Incoming 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
Surrogate Testimony
in DNA Cases
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)
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.”)
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.’”)
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
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
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 nontestifying expert or “parrot” those findings
*Note: testimonial statements can be used for nontestimonial purposes (providing an informational
foundation for expert opinion)
Defense Retesting
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)
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.”
Stipulations
Written retesting agreement incorporated into
court order
Accredited lab
Sample split
Scientifically acceptable transfer
methods/conditions
Only expert-to-expert transfers of evidence
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
DNA Discovery
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)
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)
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.)
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))
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))
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
thunt@jacksongov.org