LCN DNA Testing:
The Need for Disclosure
Susan Friedman
The Legal Aid Society
ABA: Sixth Annual Prescription for Criminal Justice Forensics
June 5, 2015
LCN Timeline
•
•
•
•
2000: Gill, Buckleton, et al., publish on LCN
2001: Budowle, et al., publishes paper calling for “consideration and caution”
2005: OCME’s LCN validation performed
2005: New York DNA Subcommittee approves LCN for casework
and LCN is brought online for in-court criminal casework
OCME
• 2008: Megnath hearing commences on admissibility
of LCN
Using
CPI or No
Stat on
Mixtures
• 2008-2010: OCME’s FST validation performed
• 2009: OCME publishes LCN validation paper
• 2010: NY DNA Subcommittee and NY Forensic Commission
approves FST for casework
• 2010: Megnath court issues opinion – finds LCN satisfies Frye standard
• 2011: OCME brings FST online
• 2012: Collins/Peaks admissibility hearing commences
• 2014/5: Collins/Peaks court finds OCME’s LCN testing does not satisfy Frye
standard
2
People v. Megnath (Queens County 2010)
The court held that the “LCN DNA testing process uses the same procedures as
HCN DNA testing;” “the principal difference merely being the number of
amplification cycles and the manner in which the scientific data is interpreted
when lesser amounts of DNA templates are tested using the LCN DNA method.”
3
Collins/Peaks (Kings County 2014)
“I think it is a big temptation and a big mistake in a Frye
hearing situation for a judge ultimately to decide which
scientific techniques he thinks work. I don’t have the
expertise for that and it is not my job in a Frye case to make
that decision. It’s my job to see whether or not there is
essentially general agreement in the scientific community as
to the challenged scientific principles.”
“And I know that there is one opinion from Queens
[Megnath] and one opinion from Manhattan, one on High
Sensitivity Analysis and one on the FST, which were written
after thorough Frye hearings and I have full respect for the
judges who disagree with me in those two opinions, but I
have to say that I disagree with them and gotta do it the way
I think it should be done.”
4
Collins/Peaks (continued)
“To have a technique that is so controversial that the community of
scientists who are experts in the field can’t agree on it and then to throw
it in front of a lay jury and expect them to be able to make sense of it, is
just the opposite of what the Frye standard is all about. And so
ultimately I had to think that it was inconsistent with Frye to give it to a
jury when so many experts in the field don’t think that it is appropriate.”
January 5, 2015 – Holding:
“I will just say that I have evaluated the new information. It does not change
my mind as to how many scientists’ noses can be counted in one category or
the other, pro or con, the FST or high sensitivity DNA. I note, in particular,
the emphasis the People place on the decisions of the subcommittee of the
State Science Board that evaluates these things. And I just have to say that
while I totally respect the expertise of the individuals involved there, they are
only seven or so scientists in varying fields related to DNA analysis, but they
are not the universe. If the subcommittee evaluating DNA in Idaho or
Arkansas were to rule in favor of the FST or high sensitivity DNA, I would
not think that ends the matter. And the fact that the New York subcommittee
has ruled the way it has, likewise, in my mind doesn’t end the matter. . . . I
just don’t think their version by itself shows the scientific community as a
whole is in favor of these DNA procedures.”
6
Responding to the Prosecution’s Arguments
Peer Review
Dr. Caragine’s testimony:
Question: And then when an article is published in the peer review journal, what
does that mean?
Answer: It means that your results have been accepted by the sci- [sic] by the
your peers, by the scientific community.
Response from defense experts:
• Peer review is open scientific evaluation by appropriate scientific community as a
step toward general acceptance or rejection of method
• Publication in peer reviewed journal does not equal exhaustive peer review since
all of the data was not submitted to journal
OCME’s LCN Validation Paper
9
Auditing Is Not Peer Review
• Auditing is a quality assurance/quality control
process
• It is aimed at ensuring that a laboratory follows
protocols and standards. It is not primarily
aimed at ensuring that the underlying scientific
methodology is reliable.
New York DNA Subcommittee
Judge Dwyer, January 5, 2015
SWGDAM Guidelines for
STR Enhanced Detection Methods
12
SWGDAM’s Position on
Enhanced Detection Methods
13
General Use
• Comparison with…
• Preimplantation Genetic Diagnosis
• Next Generation Sequencing
• Missing persons work
• Use of LCN in the international community
• Crown v. Murdoch (FSS did testing; lab director in Australia contaminated
sample)
• ESR including and excluding based on 1 allele in 4 replicates for each of both
cheeks
• Sean Hoey
• Amanda Knox
14
Defense Position: the role of data analysis
and the need for transparency
Controversy
“Where controversy rages, a court may conclude that no consensus has been
reached.” Wesley, supra, at 438.
-As one text put it, “it is fair to say that LCN typing is the subject of great
dispute among some of the leading lights of the forensic community.”
FAIGMAN, DAVID, JEREMY BLUMENTHAL, EDWARD CHENG, JENNIFER
MNOOKIN, ET.AL., MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF
EXPERT TESTIMONY (Thomson Reuters 2013-2014 ed.)
-Natasha Gilbert, “Science in Court: DNA’s Identity Crisis,” Nature, Vol.464,
p.347-348 (2010) (discussing the “highly charged debate in the scientific and
law-enforcement communities about low-copy number analysis”);
-Jason Gilder, Roger Koppl, Irving Kornfield, et. al., “Comments on the
Review of Low Copy Number Testing,” Int’l J. Legal Medicine, June 2008,
(“Given the acknowledged lack of consensus in interpretation (among other
concerns)…it is unlikely that LCN tests based on STR loci will be embraced
by crime laboratories in the U.S. or that such results would be deemed
admissible if they were challenged”)
16
General Use in the United States Cannot
be Demonstrated
OCME is the only public lab in the country to employ this method
for use in court for criminal cases.
17
FBI’s Position on LCN Testing
(http://www.fbi.gov/about-us/lab/biometric-analysis/dna-nuclear/case-acceptance.pdf)
18
19
20
FST Validation Example
(LCN protocol used)
Negative Control Contamination
• Purpose of negative controls is to establish whether extraneous
DNA is present that was not originally in the sample
• OCME-NYC allows up to 9 spurious alleles in the negative
controls before contamination is at an unacceptable level
• LCN validation data shows different injections, resulting in
different alleles detected in negative controls
• Not generally accepted to have contamination in negative
controls
23
Dr. Caragine: FST development has fixed problems with
statistical weight of LCN results
24
FST Validation Example (LCN protocol used)
Thank You!
Susan Friedman
The Legal Aid Society
sfriedman@legal-aid.org
(212) 577-3973