DNA TESTING AND THE FRYE STANDARD By Robert A. Fiatal, J.D. Special Agent Legal Instructor, FBI Academy The ability to identify a certain individual as the perpetrator of a specific criminal act through DNA analysis and comparison is undoubtedly a revolutionary investigative procedure for law enforcement. This technique, which isolates and measures the variations in the DNA structure of unknown blood or semen and compares those variations with the variations in the criminal suspect's DNA, (1) possesses particular value in the investigation and prosecution of violent crimes, such as rape, homicide and aggravated assault. The results of DNA examinations can effectively rebut alibi defenses, corroborate the accuracy of what otherwise might be questionable eyewitness identification, and correspondingly produce more guilty pleas. (2) Conversely, it can exonerate the innocent. (3) For this procedure to be truly effective in the criminal justice system, however, expert opinions and conclusions based upon DNA identification must be admissible in criminal prosecutions. Comparisons and conclusions based upon this scientific technique are strong, if not overwhelming, proof of guilt, and prosecutors, investigators, and forensic scientists should anticipate strong defense objections to the admission of such testimony at trial. Therefore, all examined specimens must be obtained in compliance with constitutional standards and maintained in a manner that precludes contamination and assures a strict chain of custody for later authentication and identification. Moreover, since conclusions from this sophisticated testing process are based upon what some courts have viewed as the relatively novel application of scientific techniques and procedures to forensic science, the law enforcement community should be prepared to satisfy specific admissibility requirements not normally associated with the introduction of other types of expert testimony. The purpose of this article is to acquaint the police officer, prosecutor, and forensic scientist with these anticipated admissibility requirements in order to assist them in their law enforcement and prosecutorial functions. One should remember, however, that the ability to meet these requirements is almost entirely dependent upon the ability of expert witnesses to convince the courts, through their testimony, that these conditions have been fulfilled. It is also incumbent upon these experts to convince the courts that the procedures used in a particular case were conducted in a reliable manner. ADMISSIBILITY OF NOVEL SCIENTIFIC EVIDENCE When assessing the admissibility of novel scientific evidence, some courts limit their review to the application of the traditional evidentiary test of relevancy. Under this test, scientific evidence is admissible if the testifying expert is duly qualified, the expert's opinion is relevant and will assist the fact finder, and the testimony is not so prejudicial as to outweigh its probative value. (4) For example, in United States v. Baller, (5) the U.S. Court of Appeals for the Fourth Circuit applied this test of admissibility to testimony relating to the then new technique of voiceprint or spectrographic identification. Because that expert testimony was found by the court to be relevant and not overly prejudicial, it was admitted. Most jurisdictions, however, apply the more stringent Frye standard when judging the admissibility of evidence derived from a relatively new scientific procedure. Based on the decision in Frye v. United States, (6) these courts also require that the theory underlying the technique, as well as the technique itself, be generally accepted or commonly recognized by scientists in the relevant scientific community. (7) Most courts that use the relevancy standard also deem the general acceptance or common recognition of a technique to be important factors in determining if evidence is relevant. (8) For example, the Supreme Court of Oregon determined that trial courts in that State should consider the following factors when assessing the relevancy of evidence based upon a new scientific approach: 1) The testifying expert's qualifications; 2) the existence of specialized literature about the procedure; 3) the use of the procedure; 4) its potential for error; and 5) its general acceptance in the relevant scientific community. (9) Accordingly, prosecutors, forensic scientists, and law enforcement officers in all jurisdictions should be prepared to satisfy the Frye prescription when introducing evidence concerning the results of DNA examinations, even though their particular jurisdictions may not specifically adopt the Frye standard. THE FRYE STANDARD In Frye, the U.S. Court of Appeals for the District of Columbia Circuit reviewed the admissibility of evidence based upon a relatively primitive polygraph technique and ruled as follows: ``Just when a scientific principle or discovery crosses the line between experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while the court will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.'' (10) Applying this standard, the court found that the questioned polygraph procedure had ``not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting testimony deduced from the discovery, development, and experiments thus far made.'' (11) Therefore, in order for the government to introduce conclusions and opinions based upon a novel scientific procedure or technique, it must meet the Frye standard by establishing that the technique and the principles behind it are generally accepted in the relevant scientific community. To meet the Frye standard, the scientific theories and techniques must be generally accepted in the specific scientific community or field to which they belong. In determining the appropriate or relevant scientific community, courts will generally not consider the entire spectrum of scientists. They will instead only consider those scientists ``whose scientific background and training are sufficient to allow them to comprehend and understand the [involved scientific] process and form a judgment about it.'' (12) The scientists will most often be limited to those who have had direct experience with the questioned scientific procedure, (13) or at least scientists who ``would be expected to be familiar with its use.'' (14) Once the appropriate scientific community is determined, the court must also decide if the questioned procedure, technique, and principles are generally accepted within that community. The Frye decision, as well as most of the decisions of other Federal and State courts that have adopted the Frye standard, give little if any guidance as to what is sufficient general acceptance. Those courts generally agree, however, that the Frye standard does not require unanimity of agreement in the applicable scientific field. (15) Instead, the Frye standard requires an agreement by a ``substantial section of the scientific community'' (16) rather than one that is universal. (17) In this regard, prosecutors planning to use DNA comparisons at trial should expect to encounter opposition to the common recognition of DNA testing procedure through the testimony of defense experts. However, this divergent testimony does not necessarily mean that the DNA technique is not generally accepted. Courts embracing the Frye standard generally recognize that ``a degree of scientific divergence of view is inevitable.'' (18) It is the overall degree of divergence in opinion in the relevant scientific community which is significant, if not crucial, in determining if the involved scientific process is generally acceptable. (19) Prosecutors attempting to meet both of these aspects of the Frye standard must rely almost exclusively upon expert testimony to persuade the court that the DNA testing procedure used is generally accepted in the appropriate scientific circle. They will also have to rely upon these same witnesses to convince the court and jury that the procedure was effectively and properly applied. CONTEMPORARY COURT ACCEPTANCE OF DNA TESTING Numerous courts, to include several at the appellate level, have assessed the admissibility of expert conclusions based upon the DNA identification process. Courts to date have carefully considered the expert testimony of scientists from the fields of molecular biology and genetics and consistently agreed that the principles underlying the DNA technique are universally accepted. (20) It is commonly recognized in all scientific disciplines that cells with nuclei contain DNA and that the structure of this DNA is different in all individuals except identical twins. Based on such expert testimony, these courts have also, without exception, recognized that certain DNA testing protocols are generally accepted as producing reliable and accurate results that satisfy both the Frye and relevancy standards of admissibility. Moreover, the overwhelming majority of these courts have determined that these procedures were properly employed by the testing laboratory. For example, in Cobey v. State, (21) a Maryland court of appeals upheld the admission of identification testimony based upon the DNA analysis performed by Cellmark Diagnostics, a private testing laboratory. Using the procedure known as restriction fragment length polymorphism, the laboratory perceived a match between the defendant's blood and semen stains found on the undergarments of the victim of a sexual assault. This complex testing procedure basically includes the following steps: 1) Extracting or recovering the DNA from the evidence; 2) fragmenting or splitting this DNA by restriction enzymes; 3) marshaling these fragments through the scientific process of gel electrophoresis; 4) transferring the fragments to a membrane by blotting; 5) detecting special segments by introducing radioactive probes; and 6) producing the autoradiograph, which is a photographic image of these special segments used for comparison with the DNA characteristics of the suspect's blood. The Cobey court relied upon the testimony of the government's five expert witnesses, including impartial scientists from the academic and research communities, to conclude that the procedures used were generally accepted, satisfied the Frye standard, and were reliably administered. (22) The court further found that the laboratory used acceptable criteria for formulating the minuscule chances of the match occurring randomly. (23) Although not an appellate opinion, a New York trial court similarly considered the propriety of the restriction fragment length polymorphism procedure used by another private laboratory, Lifecodes Corporation. In People v. Wesley, (24) the court, after an extensive hearing, was convinced by the testimony of independent experts that every step of that laboratory's protocol was generally recognized as accurate and reliable. The court was also satisfied that appropriate controls were instituted to assure that the examined samples were of sufficient quality for testing. The laboratory had conducted proficiency testing to ensure the skill of its examiners and studies to confirm the lack of degradation effects upon DNA characteristics due to age, heat, humidity and light. The Supreme Court of Virginia in Spencer v. Commonwealth (25) and a Florida court of appeals (26) applying the relevancy standard have also approved the admission of conclusions based upon this DNA testing procedure. These courts specifically relied upon the acceptance and application of the DNA testing procedure in diagnostic medicine for a lengthy period of time, the existence of specialized literature supporting the technique, and the unchallenged agreement among the testifying scientists that incorrect procedure would render an inconclusive result rather than a false match. (27) These courts also concurred that the private testing laboratory had used the proper standards when determining the statistical likelihood of a random match. Despite this overwhelming judicial acceptance of DNA identification, two courts, agreeing that DNA typing by restriction fragment length polymorphism is generally accepted in the applicable scientific disciplines, have criticized the manner in which the technique was employed. In both instances, the courts concluded that the testing procedure used was questionable, rendering results inadmissible. In one decision, the Supreme Court of Minnesota acknowledged the scientific acceptance of DNA testing, but cautioned that the ``admissibility of [DNA] test results in a particular case hinges on the laboratory's compliance with appropriate standards and controls.'' (28) The court concluded that deficiencies in the private laboratory's protocol disallowed admission of its test results. The court specifically criticized the private testing facility's failure to conduct or refer to experimental studies supporting the methodology used, and the lack of publication of those studies and their results for peer review and analysis. The court also questioned the laboratory's unwillingness to provide to the defendant specific information about its testing procedure and methodology. (29) In a highly publicized decision, a New York trial court also questioned the procedure used by another private laboratory and challenged earlier findings that faulty procedure could not render a test unreliable. In People v. Castro, (30) blood stains found on the defendant's watch were compared with the defendant's blood and the homicide victim's blood through restriction fragment length polymorphism. The examiner concluded that the blood on the watch was not the defendant's but was instead the victim's. After conducting an extensive Frye hearing, the court recognized the complete acceptance of DNA identification theory in the scientific world and the general acceptance of DNA identification techniques which are capable of producing reliable results. It further acknowledged that failure to perform this protocol in a scientifically acceptable manner would normally only effect the weight of any rendered conclusions and not their admissibility. However, the trial court determined that the laboratory was remiss in certain portions of its testing, casting doubt about the reliability of its conclusion that the blood on the watch was that of the victim. These errors included the laboratory's failure to: 1) Follow specialized procedures for resolving ambiguities that could be attributed to contaminated materials or degraded samples; 2) use a generally accepted control in one experiment; and 3) objectively quantify the readings of the produced autoradiographs. Accordingly, the court found it necessary to exclude this conclusion. However, because scientific methods to determine that two DNA samples do not match are less complex and were performed reliably, the court admitted the conclusion that the defendant's blood was not the blood on the watch. The court's decision was not appealed because the defendant subsequently pled guilty to the charged homicide. CONCLUSION Properly employed DNA identification procedure has been judicially acknowledged as meeting admissibility standards. The law enforcement community can confidently employ it in criminal investigations and prosecutions. However, strong defense objections to its admission at trial should be anticipated. Accordingly, whether courts apply the Frye test or the seemingly less restrictive relevancy standard, complete cooperation between the prosecutor, law enforcement officer, and government expert is absolutely necessary to prepare for the admissibility of DNA testing results. Prosecutors should become familiar with the DNA identification process by reviewing available material explaining the technique. (31) Prosecutors should devote sufficient time prior to discovery and trial to discuss the DNA procedure used and proposed testimony with experts, including the laboratory examiner and independent impartial scientists who can corroborate the acceptance and reliability of the testing protocol. These experts should be prepared to apprise the prosecutor of their expert qualifications, including their academic and professional backgrounds. The experts should also be prepared to explain in comprehensible terms the DNA testing process, its underlying principles, and its application to the comparison made in that particular case. They should similarly refer to any tests they or others have conducted which validate the DNA testing technique and the dissemination of the results of those tests for peer review and comment. They should also inform the prosecutor of other scientists who have recognized the validity of this technique and be prepared to testify about those scientists' studies, writings and publications that support the employed methodology. The prosecutor and scientist should also discuss the anticipated testimony of any expected defense experts in order to prepare for appropriate cross-examination and rebuttal. Finally, they should acquaint themselves with those court decisions that have criticized the way in which the DNA testing procedure was performed and be prepared to explain to the trial court the reliability of the testing procedure used. In the final analysis, a court's decision to admit the results of DNA testing rests, in most jurisdictions, upon the application of the Frye standard to the testimony of the expert witnesses. It is expected that after a reasonable period of appropriate appellate review, all jurisdictions will recognize the scientific acceptance of the DNA technique. It will still be necessary, however, to convince courts that proper protocol was followed in a particular case. Success ultimately depends on the ability of the expert witnesses to explain to the court the scientific validity of the DNA process used and the particular conclusion or identification made. FOOTNOTES (1) For a more thorough explanation of the DNA identification process, see John W. Hicks, ``DNA Profiling: A Tool for Law Enforcement,'' FBI Law Enforcement Bulletin, vol. 57, No. 8, August 1988, pp. 1-5. (2) See People v. Castro, 545 N.Y.S.2d 985 (N.Y. Sup. Ct., Bronx County, 1989). (3) Of the DNA examinations performed by the FBI's DNA Analysis Unit which have resulted in a conclusion, approximately 30 percent have excluded the suspect. Telephone interview with SA Lawrence A. Presley, DNA Analysis Unit, Laboratory Division, FBI, March 2, 1990. (4) See United States v. Downing, 753 F.2d 1224 (3d Cir. 1985); United States v. Brown, 557 F.2d 541 (6th Cir. 1977); United States v. Baller, 519 F.2d 463 (4th Cir. 1975); State v. Brown, 687 P.2d 751 (Or. Sup. Ct. 1984); State v. Hall, 297 N.W.2d 80 (Iowa Sup. Ct. 1980); State v. Williams, 388 A.2d 500 (Me. Sup. Ct. 1978). (5) Id. (6) 293 F. 1013 (D.C. Cir. 1923). (7) United States v. Tranowski, 659 F.2d 750 (7th Cir. 1981); United States v. Kilgus, 571 F.2d 508 (9th Cir. 1978); United States v. McDaniel, 538 F.2d 408 (D.C. Cir. 1976); United States v. Alexander, 526 F.2d 161 (8th Cir. 1975); State v. Temple, 273 S.E. 2d 273 (N.C. Sup. Ct. 1981); Reed v. State, 391 A.2d 364 (Md. Ct. App. 1978); People v. Tobey, 257 N.W.2d 537 (Mich. Sup. Ct. 1977); Commonwealth v. Topa, 369 A.2d 1277 (Pa. Sup. Ct. 1977); People v. Kelly, 549 P.2d 1240 (Cal. Sup. Ct. 1976); Commonwealth v. Lykus, 327 N.E.2d 671 (Mass. Sup. Ct. 1975). For a detailed discussion of the current status of the Frye standard, see Gianelli, ``The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later,'' 86 Colum. L. Rev. 1198 (1980). (8) United States v. Downing, supra note 4; United States v. Brown, supra note 4; State v. Brown, supra note 4. (9) State v. Brown, supra note 4. (10) Supra note 6, at 1014. (11) Id. at 1014. (12) Reed v. State, supra note 7, at 368. (13) See People v. Young, 391 N.W.2d 270 (Mich. Sup Ct. 1986). (14) People v. Williams, 331 P.2d 251, 254 (Cal. Ct. App. 1958). (15) See People v. Middleton, 429 N.E.2d 100 (N.Y. Ct. App. 1981). (16) United States v. Williams, 443 F.Supp. 269, 273 (S.D.N.Y. 1977). (17) See United States v. Zeigler, 350 F.Supp. 685 (D.D.C. 1972). (18) Commonwealth v. Lykus, supra note 7, at 678 n. 6. (19) See Reed v. State, supra note 7; People v. Barbara, 255 N.W.2d 171 (Mich. Sup. Ct. 1977). (20) Trial courts have admitted conclusions based upon DNA analysis by examiners from the FBI on over 50 occasions. Telephone interview with SA Lawrence A. Presley, DNA Analysis Unit, Laboratory Division, FBI, March 2, 1990. (21) 559 A.2d 391 (Md. Ct. Spec. App. 1989). See also Yorke v. State, 556 A.2d 230 (Md. Ct. App. 1989) and State v. Woodall, 385 S.E.2d 253 (W. Va. Sup. Ct. 1989). (Inconclusive DNA tests, although generally accepted in the scientific community, conducted after trial not grounds for new trial.) (22) Maryland now statutorily allows the admission of conclusions based upon DNA testing. 1989 Md. Laws Ch. 430. (23) The court specifically found that the number of samples used to devise the database for calculating these figures was within generally accepted scientific criteria. (24) 533 N.Y.S.2d 643 (N.Y. Sup. Ct., Albany County, 1988). See also People v. Shi Fu Hung, 546 N.Y.S.2d 920 (N.Y. Sup. Ct., Nassau County, 1989). (25) 384 S.E.2d 775 (Va. Sup. Ct. 1989); 384 S.E.2d 785 (Va. Sup. Ct. 1989) (the defendant was convicted of two incidents of murder in separate trials). (26) Andrews v. State, 533 S.2d 841 (Fla. Ct. App. 1988); see also Martinez v. State, 549 So.2d 94 (Fla. Ct. App. 1989). (27) See also Cobey v. State, supra note 21 and People v. Wesley, supra note 24. But see People v. Castro, supra note 2. (28) State v. Schwartz, 447 N.W.2d 422, 428 (Minn. Sup. Ct. 1989). (29) Minnesota statute now requires the application of the relevancy standard in determining the admissibility of DNA testing. Minn. Stat. Sec. 634.25 (1989). (30) Supra note 2. (31) For detailed discussions of the DNA identification process, see John W. Hicks, ``DNA Profiling: A Tool for Law Enforcement,'' supra note 1; and Thompson and Ford, ``DNA Typing: Acceptance and Weight of the New Genetic Identification Tests,'' 75 Va. L. Rev. 45 (1989).  Downloaded From P-80 International Information Systems 304-744-2253