NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0103-17
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
January 28, 2022
v. APPELLATE DIVISION
DANIEL ROCHAT,
Defendant-Appellant.
________________________
Argued November 9, 2021 – Decided January 28, 2022
Before Judges Hoffman, Geiger and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Indictment No. 13-07-
1002.
David A. Ruhnke argued the cause for appellant
(Ruhnke & Barrett, attorneys; David A. Ruhnke, on
the briefs).
Ian C. Kennedy, Assistant Prosecutor, argued the
cause for respondent (Mark Musella, Bergen County
Prosecutor, attorney; Danielle Grootenboer, Chief
Assistant Prosecutor, David A. Malfitano, Chief
Assistant Prosecutor, and Ian C. Kennedy, of counsel
and on the briefs; John J. Scaliti, Legal Assistant, on
the briefs).
Tamar Y. Lerer, Assistant Deputy Public Defender,
argued the cause for amicus curiae Office of the
Public Defender (Joseph E. Krakora, Public Defender,
attorney; Tamar Y. Lerer, of counsel and on the brief;
Julie Fry, Director, Forensic Science Unit, on the
brief).
The opinion of the court was delivered by
GEIGER, J.A.D.
Defendant Daniel Rochat was convicted of the murder of Barbara
Vernieri and related charges and sentenced to life in prison. He appeals his
convictions, primarily arguing that certain disputed DNA evidence was
improperly admitted at trial. The disputed DNA evidence was obtained
through a technique known as low copy number (LCN) DNA testing
performed by the Office of the Chief Medical Examiner of the City of New
York (OCME). One of the samples was analyzed by OCME using its Forensic
Statistical Tool (FST) software program. Defendant argues that both LCN
DNA testing and FST are not generally accepted in the scientific community.
We agree, and because the error in admitting the evidence was not harmless,
we reverse defendant's conviction and remand for a new trial.
I.
We derive the following facts from the record. Shortly after noon on
September 14, 2012, Sinan and Holland Logan, who rented the upstairs
apartment in Vernieri's residence, heard a beeping sound coming from
Vernieri's downstairs living space. When they opened the door that led to the
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stairwell connecting the living spaces, they smelled gasoline. They descended
the stairs, rang Vernieri's doorbell, and knocked on her door. When she did
not respond, Sinan called her cell phone, which she did not answer. He then
called her daughter who told him to call 911.
Vernieri's body was found lying face down in her sitting room. She was
nude, her hair was scorched off, and she had burns on her back, arms, and legs.
Investigators discovered burn patterns on the floor and determined that
gasoline was "applied to areas in this room, including her body and . . . set on
fire." A large, suspected blood stain was found on the carpet.
Vernieri was pronounced dead at the scene. The medical examiner
determined that the cause of death was blunt force head injuries, and the
manner of death was homicide.
Sergeant Gary Boesch of the Bergen County Prosecutor's Office
interviewed defendant at 10:15 p.m. on September 14, 2012. Defendant told
Boesch that on September 12, 2012, at about 7:15 p.m., his car overheated near
Vernieri's home. He pulled over and decided to pay her an unannounced visit.
When she answered the door, she was speaking on the phone to her
"companion from Florida." She hung up the phone and he visited with her for
about one hour. During the visit, Vernieri was cooking, and defendant drank
two bottles of water but had nothing to eat. He denied drinking beer. They
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discussed the real estate business and relationships. Defendant asked her if she
needed help moving anything, but she declined.
Defendant told Boesch that the last time he saw Vernieri was on the
afternoon of September 13, 2012, when he stopped in at the Kurgan-Bergen
Real Estate Agency, where Vernieri had worked for approximately twenty-
seven years, to check his emails. The agency was owned by defendant's father.
Before leaving, he chatted with Vernieri and gave her his phone number at her
request in case she wanted to take him up on his offer to help move her things.
Defendant also told Boesch that he woke up at around 11:00 a.m. on
September 14, 2012, and a little later went to see his father to borrow money
from him. He then went to a deli in Woodbridge and then drove to the Jersey
shore.
On September 17, 2012, investigators obtained communication data
warrants for defendant and Vernieri's cell phones. On the morning of
September 18, 2012, Boesch and Detective James McMorrow conducted a
recorded interview of defendant at his apartment after defendant refused to
accompany the detectives to their office. Defendant was advised of his
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Miranda1 rights. He said Vernieri was a long-time family friend who worked
for his father's real estate agency.
Defendant described that on September 12, 2012, as his car was about to
overheat, he pulled over about two blocks from Vernieri's house and decided to
walk to her home. He estimated that he arrived at her house at 7:20 p.m. It
was the first time he had ever visited Vernieri's home. She was on the phone
with a man she was seeing in Florida but invited defendant into her house. She
offered defendant something to drink and gave him a bottle of water. She also
offered him food, but he declined. He visited with her for about one hour.
When asked if he only had a bottle of water during the visit, defendant
stated that Vernieri offered him a beer, which he drank. He clarified that he
had two beers and two bottles of water. Vernieri took defendant to the
basement of her home so that he could choose the beer from her basement
refrigerator. Defendant commented to Vernieri that he had never been in her
home before, and she gave him a "quick tour." While he was there, defendant
asked her if she needed help moving anything, but she declined.
Defendant told the detectives that he saw Vernieri on September 13,
2012, when he stopped by his father's real estate office that afternoon. He
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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spoke briefly with her; she asked for his cell phone number in case she needed
help moving anything.
Defendant recounted that on September 14, 2012, he woke up between
11:00 a.m. and noon and then drove to Lyndhurst to get a bagel. Afterwards,
he stopped at a condominium on Van Winkle Avenue in East Rutherford that
was managed by his father. The property had been sold by defendant's father
to an Egyptian family who visited the United States regularly. Defendant and
his father managed the property when the owners were absent. Defendant was
permitted to keep his truck there and had access to the garage area. Defendant
said he kept tools and cleaning supplies there for his truck. After stopping at
the condominium, defendant returned to his apartment to shower and went to
his father's office to get money. He then returned home to pack for a stay at
his parent's shore house.
Defendant said he went to the shore later that night after stopping to see
a friend, Kristen Henke, who was house sitting for her parents in Ridgewood.
He was with Henke when his father called to tell him about Vernieri.
After recounting these events, defendant changed his story and said he
saw his father after visiting Henke and drove to the shore immediately
thereafter. He could not remember what time it was when he drove to the
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shore but believed it was early that evening. He denied being on Shepard
Terrace, the street where Vernieri lived, at any time on September 14, 2012.
Defendant said he was wearing either his Nike Air Max or Adidas
athletic shoes when he visited Vernieri on September 12, 2012. The detectives
showed defendant a photograph of an impression of an Adidas shoe taken at
Vernieri's house and defendant showed the detectives Adidas shoes he may
have been wearing when he visited Vernieri.
McMorrow informed defendant that his cell phone records showed he
received a call at 10:39 a.m. on the morning of September 14, 2012.
Defendant claimed that he did not remember getting the call. Additional calls
were made to defendant's phone at 11:06, 11:10 and 11:42 a.m. but were not
completed. McMorrow said that showed that defendant's phone had been
turned off. McMorrow told defendant that they were able to map where his
phone was and that he was on Shepard Terrace at 10:39 a.m. Defendant
denied he was there. He refused to speak further with the detectives.
McMorrow then informed defendant that they had a search warrant for
his apartment and that he needed to accompany them to the prosecutor's office
for fingerprinting and DNA collection. Sergeant James Brazofsky, along with
other officers, executed the search warrant. Brazofsky testified that Adidas
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sneakers retrieved from defendant's apartment matched the shoe impression
found at the crime scene.
On September 19, 2012, Boesch obtained a search warrant for the Van
Winkle Avenue condominium. In his affidavit supporting the issuance of a
search warrant, Boesch recited the following facts:
• Sinan Logan reported hearing sounds from Vernieri's residence
between 10:10 a.m. and 10:30 a.m., which he attributed to
Vernieri's grandchildren, and which he described as "a struggle, or
two people wrestling, and a yell or a shriek."
• Vernieri's daughter reported that Vernieri had a "strange
encounter" with defendant, who stopped by Vernieri's house
unannounced on September 12, 2012, something he had never
done before.
• Vernieri's daughter reported that her mother told her defendant had
two beers while he visited, that he asked her to "take him on a
walk-through to see the house," and asked her about diamond
jewelry.
• Joanna Connelly and Joanne DeMauro, who were both friends of
Vernieri, reported that Vernieri described defendant's September
12, 2012, visit as an "odd" or "unusual event," and that Vernieri
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told them she offered him a beer and a sandwich, which he
accepted;
• In his first statement to police, defendant denied having beer at
Vernieri's house and said he only had two bottles of water and
nothing to eat.
• Shoe impressions of an Adidas shoe were found at the crime
scene.
• Cell phone records identified the location of defendant's cell phone
as in the area of Vernieri's home and the parking lot behind it
when an incoming call was received at 10:39:57 a.m. on
September 14, a time coinciding with the disturbance heard by
Logan;
• In his first statement to police, defendant claimed that he slept
until about 11:00 a.m. on September 14, and in his second
statement he claimed that he slept until sometime between 11:00
a.m. and noon.
• In his second statement to police, defendant said that after waking
on September 14, he drove to Lyndhurst for a bagel and then
stopped at a condominium on Van Winkle Avenue to get cleaning
supplies for his vehicle.
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• A friend of defendant identified the condominium unit on Van
Winkle Avenue that was utilized by defendant and a nearby
resident described a man, matching defendant's description, who
drove vehicles matching the description of those owned by
defendant, that he observed at the property on multiple occasions.
Investigators, including McMorrow, executed the search warrant on the
Van Winkle Avenue condominium. Samples were taken from two areas of the
kitchen sink that reacted to Leuco Crystal Violet, a substance used by
investigators to detect blood. The swabs were sent to OCME for analysis. On
October 2, 2012, McMorrow received the OCME lab test results and was
authorized to arrest defendant.
Boesch and McMorrow were part of the team that arrested defendant on
October 3, 2012. The arrest was effectuated through a motor vehicle stop.
Defendant ignored numerous commands to turn off the engine, open the door,
and exit the vehicle. Officers physically removed defendant from the vehicle
and when he refused to place his hands behind his back, he was taken to the
ground and forcibly handcuffed.
On July 15, 2013, a Bergen County grand jury returned an indictment
charging defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2)
(count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (counts two
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and three); second-degree burglary, N.J.S.A. 2C:18-2 (count four); second-
degree aggravated arson, N.J.S.A. 2C:17-1(a) (counts five, six and seven);
first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (counts
eight and nine); second-degree desecrating and/or damaging and/or destroying
human remains, N.J.S.A. 2C:22-1(a) (count ten); third-degree obstruction,
N.J.S.A. 2C:29-3(b)(1) (count eleven); third-degree hindering prosecution,
N.J.S.A. 2C:29-3(b)(4) (count twelve); fourth-degree false swearing, N.J.S.A.
2C:28-2(a) (count thirteen); and third-degree resisting arrest, N.J.S.A. 2C:29-
2(a)(3)(a) (count fourteen).
Defendant moved for a Frye2 hearing to determine the admissibility of
LCN DNA test results issued by OCME. On August 6, 2015, the court issued
a written opinion denying defendant's motion.
Defendant subsequently moved to dismiss the indictment; dismiss counts
twelve through fourteen of the indictment; sever counts twelve through
fourteen; suppress his statements; and for a Franks/Howery3 hearing. On
February 7, 2017, a different judge issued an order and lengthy written opinion
denying defendant's motion in its entirety.
2
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
3
Franks v. Delaware, 438 U.S. 154 (1978); State v. Howery, 80 N.J. 563
(1979).
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The State moved to admit certain out-of-court statements of the victim
and defendant. On March 16, 2017, the court granted the motion in part and
denied it in part. The court ruled that statements made by the victim to
DeMauro two nights before the murder were admissible as present sense
impressions.
THE TRIAL TESTIMONY
A jury trial was conducted on eighteen nonconsecutive days from April
11, 2017, through June 14, 2017. At trial, Maurice Paul Murphy testified that
he had been involved in a relationship with Vernieri since 2011, and that he
spoke to her "[p]robably every night." He was speaking to her at
approximately 9:00 p.m. on September 12, 2012, when her doorbell rang and
"startled" them. Vernieri said "nobody comes here this time of night." He
remained on the phone while she answered the door and could hear her
greeting the person as someone that she knew. When Vernieri returned to the
phone, she told Murphy that it was someone from the office, everything was
fine, and she would call him tomorrow. Vernieri told Murphy the next
morning that her visitor was male.
DeMauro testified that she had been friends with Vernieri for at least
fifty years and they spoke every night. She spoke to Vernieri at around 9:30 or
10:00 p.m. on September 12, 2012, and Vernieri told her that defendant had
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visited her that evening because his car broke down and he knew that she lived
nearby. Vernieri recounted that she invited defendant into her home, offered
him dinner, and showed him around the house because he had never seen it.
Defendant ate and had a beer and when he asked for another, Vernieri told him
he could get it himself, which he did. Vernieri told DeMauro that she was
surprised by the visit because defendant had never been there before.
Melissa Huyck testified for the State as an expert in forensic biology and
statistical analysis associated with DNA testing. She testified that while
working at OCME in 2012, she analyzed two sets of swabs sent to OCME from
the Van Winkle condominium kitchen sink using LCN DNA testing. A single
DNA profile was developed from the first set of swabs, labeled 1.2.4 and 1.2.5
(Sample 1), that was "consistent with that of Barbara Vernieri." Huyck
explained that, statistically, one would expect to see that same profile in 1 in
88.1 billion people.
Testing of the second set of swabs, labeled 1.2.1 and 1.2.2 (Sample 2),
showed a mixture of DNA from two people. Using FST, Huyck determined
that the mixture "was approximately 71.2 million times more likely to have
come from Barbara Vernieri and another person rather than that mixture
coming from two unknown, unrelated people." However, "the mixture was
575 times more probable to have come from Barbara Vernieri and an
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unknown, unrelated person rather than having come from Barbara Vernieri and
[defendant]." Hyuck said the DNA test results "indicate[d] strong support that
the DNA from the kitchen sink was from Barbara Vernieri and an unknown
person, rather than having come from Barbara Vernieri and [defendant]." She
agreed that she could not tell when the DNA mixture was created and that
there could have been DNA in the sink before the blood was put there.
Huyck tested additional samples obtained from Vernieri's home,
defendant's apartment, and his car. The samples from Vernieri's home did not
test positive for defendant's DNA. The samples from defendant's apartment
and car did not test positive for Vernieri's DNA
The New Jersey State Police (NJSP) also conducted DNA testing of
several samples obtained from Vernieri's home and person. Kimberly
Michalik of the NJSP Office of Forensic Sciences, testified for the State as an
expert in forensic DNA analysis. She stated that defendant could not be
excluded as a contributor to the DNA found in fingernail clippings from
Vernieri's left hand. The DNA profile obtained would be "expected to occur . .
. no more frequently than . . . 1 in 333 of the Caucasian population" but would
occur in all of defendant's paternal male relatives. No other DNA implicating
defendant was found in any of the other samples tested by the NJSP
laboratory.
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FBI Special Agent Ajit David testified for the State as an expert in
historical cell site analysis. He was "absolutely certain" that defendant's cell
phone interacted with Vernieri's home cell phone tower and sector at 10:39
a.m. on September 14, 2012. David testified that it was not possible for that
tower and sector to service defendant's cell phone if he was at his apartment,
which was approximately one mile from the tower.
Heather Coyle, Ph.D., testified for the defense as an expert in DNA
analysis and DNA statistical analysis. She opined that LCN DNA testing was
not reliable.
Manfred Schenk testified for the defense as an expert in historical cell
site analysis and radio frequency engineering. He opined that the location of
defendant's cell phone could not be determined based upon the cell phone
records relied upon by the State's expert. He stated that cell phones do not
always use the closest cell tower and that a phone can access a tower that is up
to 21.75 miles away.
Counts six through nine and fourteen were dismissed before the case was
submitted to the jury.
THE JURY INSTRUCTIONS
Relevant to the issues on appeal, the trial court gave the following final
instructions to the jury:
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Proof of other crimes, wrongs or acts, New
Jersey Rule of Evidence 404(b). The State has
introduced evidence that on October 3, 2012, this
defendant ignored police commands to turn off his
vehicle, get out of his car and submit to being
handcuffed.
Normally, such evidence is not permitted under
our rules of evidence. Our rules specifically exclude
evidence that a defendant has committed other wrongs
or acts when it is offered only to show that he has a
disposition or tendency to do wrong and therefore,
must be guilty of the charged offenses. Before you
can give any weight to this evidence, you must be
satisfied that the defendant committed the other wrong
or act.
If you are not so satisfied, you may not consider
it for any purpose. However, our rules do permit
evidence of other wrongs or acts, when the evidence is
used for certain, specific, narrow purposes. Here, the
evidence has been offered to attempt to convince you
that the defendant's refusal to follow the police
commands is evidence of a consciousness of guilt on
defendant’s part regarding the other charged offenses,
particularly, the murder and arson.
You may not draw this inference unless you
conclude that the defendant did, in fact, ignore police
commands to turn off his vehicle, get out of his car
and submit to being handcuffed on October 3rd, 2012.
Whether this evidence does, in fact, demonstrate
consciousness of guilt is for you to decide. You may
decide that the evidence does not demonstrate
defendant's consciousness of guilt and is not helpful to
you at all.
In that case, you must disregard the evidence.
On the other hand, you may decide that the evidence
does demonstrate consciousness of guilt and use it for
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that specific purpose. However, you may not use this
evidence to decide that the defendant has a tendency
to commit crimes or that he is a bad person. That is,
you may not decide that just because the defendant has
committed other wrongs or acts, he must be guilty of
the charged crimes.
I've admitted the evidence only to help you
decide the specific question of defendant's
consciousness of guilt. You may not consider it for
any other purpose and may not find the defendant
guilty now simply because the State has offered
evidence that he committed these other wrongs or acts.
The jury convicted defendant of the remaining counts, including murder.
Defendant moved for a judgment of acquittal and a new trial. On July
28, 2017, the trial judge denied both motions. That same day, defendant was
sentenced to life, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on
the murder charge, a consecutive five-year term on the obstruction charge
(count eleven), and terms that run concurrently to count eleven on the
remaining counts, except counts two and three, which were merged into count
one for sentencing purposes.
Defendant appealed his conviction. On September 26, 2017, we granted
defendant's motion for a remand and directed the trial court to conduct a
N.J.R.E. 104(a) hearing to determine the admissibility of LCN DNA evidence
under the standards established in Frye and State v. Harvey, 151 N.J. 117
(1997). We retained jurisdiction. We denied the State's motion for
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reconsideration. The Supreme Court denied leave to appeal. State v. Rochat,
232 N.J. 151 (2018).
THE FRYE HEARING ON REMAND
The Frye Hearing was conducted over six nonconsecutive days in May
and June 2018. Multiple expert witnesses testified during the hearing.
The State's Witnesses
Craig O'Connor, Ph.D., a geneticist, testified for the State as an expert in
forensic DNA analysis and the statistical significance of those results.
O'Connor began working for OCME in May 2008. He performed both
conventional short tandem repeat (STR) DNA testing and LCN DNA testing.
Between 2008 and 2012, he processed hundreds of cases using LCN and
conventional DNA testing. He also used FST "dozens if not over a hundred"
times.
By 2014, O'Connor was promoted to a position responsible for
overseeing all aspects of the testing done at the laboratory. He very rarely
performed DNA testing himself but was still proficient in the testing
techniques. In August 2017, O'Connor was promoted to assistant director of
the Forensic Biology Department, a position he still held at the time of his
testimony.
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O'Connor testified that the relevant scientific community for LCN DNA
testing was international. He identified several individuals that he claimed
were members of the relevant scientific community, including Peter Gill, a
pioneer in LCN DNA testing from the United Kingdom; John Buckleton, a
pioneer in LCN DNA testing and probabilistic genome typing from New
Zealand; Hinda Haned, a pioneer in probabilistic genome typing programs
from the Netherlands; and John M. Butler, a scientist with the National
Institute of Standards and Technology (NIST), who has published several
books on forensic DNA analysis, including one that has a chapter devoted to
LCN DNA testing.
O'Connor claimed that the Scientific Working Group on DNA Analysis
Methods (SWGDAM) was also part of the relevant scientific community.
SWGDAM is part of the Federal Bureau of Investigation (FBI) and is
comprised "of professionals within the scientific community that look at DNA
testing and typing, methods and interpretations, and . . . put out guidelines, and
occasionally standards." He also considered the New York State Commission
on Forensic Science (CFS), which accredits all laboratories in the state, and its
DNA Subcommittee, which reviews validation studies and laboratory
procedures, to be part of the relevant scientific community.
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O'Connor testified that the Forensic Biology Department at OCME
began doing DNA testing in 1991. In 1994, it started doing STR DNA testing,
and was approved for LCN DNA testing, also known as high sensitivity testing
or low template DNA testing, by the CFS after a binding recommendation by
the DNA Subcommittee in December 2005. LCN DNA testing is used on
items of evidence expected to contain small amounts of DNA. It is a
modification of the conventional STR DNA technique designed to increase its
sensitivity. O'Connor testified that OCME had done LCN DNA testing for the
FBI and more than eighty jurisdictions in ten states.
O'Connor explained that except for identical twins, DNA can be used to
identify individuals and link them to evidence.
DNA testing involves several steps. The first is to examine evidence for
the presence of biological material. The next step is DNA extraction where the
DNA is separated from other parts of a cell and measured. Testing is stopped
if there is not enough DNA.
After quantification, an analyst decides whether conventional STR DNA
testing, also referred to as high copy number testing, or LCN DNA testing
should be used. Copies of the DNA at the locations selected for testing are
then made using a process called Polymerase Chain Reaction (PCR). Because
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there are three to four billion base pairs, testing can be done only on selected
locations, referred to as loci.
In 2012, when OCME processed the samples obtained in this case, it was
using a product called Identifiler to perform PCR. Identifiler was able to
examine sixteen loci. Identifiler's manufacturer recommended twenty-five to
twenty-eight PCR cycles but also advised that each laboratory should perform
the appropriate validation steps to determine the optimal number of cycles. In
conventional DNA testing, twenty-eight PCR cycles were run by OCME, and
for LCN DNA testing, thirty-one cycles were run. This process is known as
amplification.
DNA is measured in picograms, which are one trillionth of a gram. Each
cell contains about six picograms of DNA. In 2012, the optimal amount of
DNA for OCME's conventional STR testing was 500 picograms, but the
testing could be done with only 100 picograms. LCN DNA testing was done
on any sample containing less than 100 picograms of DNA.
Once amplification is complete, capillary electrophoresis is performed,
which involves running the sample through a matrix to separate out fragments
of DNA by size. The analyst can review and interpret the results of this
process on an electropherogram, which represents the different alleles by
numbers. An allele is a difference of the DNA at a location. For example, eye
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color is a locus on the DNA and the allele would determine the color of a
person's eyes.
OCME's validation process for LCN DNA testing began in 2001 and was
completed in 2005. The 2004 SWGDAM Validation Guidelines, as well as the
FBI's 1998 quality assurance standards, were followed and over 800 samples
were tested. O'Connor testified that reliable DNA profiles were obtained from
as little as 6.5 picograms of DNA. OCME modeled its validation studies on
procedures used in the United Kingdom for LCN DNA testing. Several other
countries also used LCN DNA techniques in criminal cases including
Australia, Italy, Belgium, the Netherlands, New Zealand, Croatia, and Spain.
O'Connor acknowledged that stochastic, or random, effects are more
common in LCN DNA testing than in conventional high copy number testing.
Stochastic effects can include increased stutter products, allelic drop-in, allelic
drop-out, and peak imbalance. 4 Stutter is a biological phenomenon that
happens during PCR. Allelic drop-in "is a term that's used when you see
pieces of DNA that aren't expected to be in the sample." Possible causes of
allelic drop-in are an additional contributor or contamination. Allelic drop-out
is where an allele that should be present is absent. Peak imbalance occurs
4
These stochastic effects are also referred to as "artifacts."
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when there are two alleles at one location that should be the same height on an
electropherogram, and one peak is much lower than the other.
OCME made "some general modifications" in its LCN DNA testing
protocols to account for stochastic effects. One modification was to increase
the number of PCR cycles from twenty-eight to thirty-one "to try and get some
more amplification of those products." Another was to test the sample three
times during the amplification process and use a combination of the three
results. This consensus approach only includes alleles in a DNA profile if they
are seen at least twice in the three test results. According to O'Connor, this
approach accounts for allelic drop-in because it is a "rare random occurrence"
and "you wouldn't expect it to be seen in more than one of the runs."
O'Connor testified that most laboratories performing LCN DNA testing use the
consensus approach. He identified a comment by Butler in his book,
Advanced Topics in Forensic DNA Typing: Methodology (Methodology book)
that states, "this replicate amplification strategy has become the core feature of
reliable Low Level [DNA] Testing."
O'Connor explained that scientific experiments generally yield
reproducible results, meaning that if you ran the test multiple times you would
get the same result. However, because of the stochastic effects when dealing
with low amounts of DNA in LCN DNA testing, one would not expect the
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same allele calls at the same peak height value every time. He agreed that the
purpose of triplicate amplification was to try to account for stochastic effects
such as drop-in and drop-out. The electropherograms for the three
amplifications would be different but "the reproducibility part of it would be
that the conclusion is reproducible, not the exact alleles and the exact peak
heights." O'Connor claimed that reproducibility of the conclusion was shown
to be accurate in OCME's validation studies. He did not deny that LCN testing
was "less robust" than conventional STR analysis and acknowledged one
would expect to get less information from lower amounts of DNA, which is
why OCME modified its interpretation protocols to account for stochastic
effects.
O'Connor testified that by 2014, enough laboratories were using "low
amounts of DNA that SWGDAM thought it necessary to come out with
guidelines [on] how to deal with these enhanced detection techniques."
Enhanced detection techniques include extra amplification cycles. The 2014
SWGDAM Guidelines for STR Enhanced Detection Methods (2014
SWGDAM Guidelines) state that if a laboratory chose to use LCN DNA
Analysis, "it is strongly recommended that the laboratory incorporate Replicate
Amplification Analysis." According to O'Connor, the significance of the 2014
SWGDAM Guidelines is that enhanced detection methods had "become
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widespread throughout the scientific or the forensic DNA community and
[were] generally accepted [such that] SWGDAM took it upon themselves to
offer guidelines to . . . standardize the way that the validation was done with
these methods."
O'Connor testified that after an electropherogram is done, the analyst
estimates the number of contributors and makes a comparison to a known
individual. When there is a single contributor to the DNA sample, a random
match probability is calculated, which is the "probability of randomly selecting
a person from the population that would also have this DNA profile." Sample
1 from Van Winkle Avenue was a single source sample; the random match
probability was calculated as 1 in 88.1 billion people, using the Hardy
Weinberg equation, which looks at the frequency of alleles in population
databases.
O'Connor explained there are two alleles at each locus in a DNA sample
because a person gets half of their DNA from each parent. When most of the
loci in a DNA sample have more than two alleles, the sample is identified as a
mixture with more than one contributor. O'Connor noted that mixtures are
very common in conventional as well as LCN DNA testing. A person can be
excluded or included as a possible contributor to a mixture. The National
Academy of Sciences, SWGDAM, and other scientific bodies in the forensic
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DNA community have recommended that "a statistic should accompany any
positive associations" in a mixture sample.
A likelihood ratio is a tool for measuring the probability that a person is
included as a possible contributor to a DNA sample. Prior to 2009, only a few
programs used likelihood ratios "to determine strength of evidence in mix tures
and DNA analysis." Because the programs were not commercially available,
OCME developed its own program, FST, to calculate likelihood ratios. By
2015, several other laboratories had developed software like FST to calculate
likelihood ratios.
O'Connor described OCME's development and internal validation
process for FST. He said that over 400 samples were tested, and more than
500,000 comparisons were performed. George Carmody, Ph.D., a population
geneticist and forensic statistician in this field was a member of the DNA
Subcommittee when it approved FST. He voted in favor of its approval. In
October 2010, the DNA Subcommittee recommended that FST be approved for
forensic casework.
Thereafter, FST was modified twice. Shortly after it was first brought
online, it was taken offline because it produced a negative likelihood ratio,
which was mathematically impossible. At that point, the software had already
been validated. Some "unrelated maintenance" that purportedly caused the
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problem was addressed and testing verified that it was calculating correctly.
Later, some "cosmetic changes" were made. After each of those changes a
performance check was done but the software was not re-validated.
FST is used for both conventional and LCN DNA testing. According to
O'Connor, "based on the fact that it was properly validated, the results are
reliable and the likelihood ratios that are obtained . . . make sense and are
reliable based on the data and the comparisons that are being done."
O'Connor testified that FST was not used on single-source samples; it
was only used where there was a two- or three-person mixture. FST was used
to calculate likelihood ratios for Sample 2, a mixture containing twenty -five
picograms of DNA.
FST calculated that it was "approximately 71.2 million times more
probable that [Sample 2] originated from . . . Vernieri and one unknown,
unrelated person than if it had originated from two unknown, unrelated
persons." O'Connor contended the methodology was generally accepted within
the relevant scientific community.
In September 2016, OCME wrote to customers describing new
technologies to be implemented in 2017. PowerPlex Fusion was a new DNA
typing kit that could look at twenty-four loci rather than the sixteen examined
by Indentifiler. The change was necessary because the FBI increased the
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number of core locations that had to be tested for inclusion in the Combined
DNA Index System (CODIS), the national DNA database. In addition,
PowerPlex Fusion is more sensitive than Identifiler and allows DNA profiles
to be determined from samples as small as 37.5 picograms without using any
LCN DNA testing modifications.
O'Connor maintained that moving to PowerPlex Fusion was not a
refutation of the LCN DNA testing previously done by OCME. He explained
that there was a cost benefit to using PowerPlex Fusion because they could
obtain profiles from smaller samples without running additional amplification
cycles. At the time of O'Connor's testimony, OCME was still using LCN
testing for old cases that were pending trial or might need additional work but
had stopped using it on any new cases.
O'Connor testified that the samples from Van Winkle Avenue contained
19.4 picograms amplified of DNA in Sample 1, and 25 picograms amplified in
Sample 2. If the samples had been taken after OCME switched to PowerPlex
Fusion, the one that was 19.4 picograms would not have been able to be tested.
The 25 picogram sample could be tested because the PowerPlex Fusion
amplification tube is larger than the one used in Indentifiler and when
amplified, the sample would have 37.5 picograms of DNA, which is the lower
limit for PowerPlex Fusion. He contended, however, that even if the samples
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could not have been tested using PowerPlex Fusion, it did not make the results
of the LCN DNA testing unreliable because OCME's validation of the process
and review by the DNA Subcommittee showed it was reliable. O'Connor
testified that OCME processed dozens of cases with samples below twenty-
five picograms.
When OCME began using PowerPlex Fusion it also began using a tool
called STRmix to calculate likelihood ratios. OCME did not use FST on any
case received after 2017 but was still using it on cases that were amplified
using Indentifiler.
O'Connor identified a December 2017 letter from the chair of the DNA
Subcommittee written in response to allegations made by the Legal Aid
Society (LAS), the primary public defender in New York City, and the Federal
Defenders of New York regarding FST and OCME's LCN DNA testing
methodology. The letter reported that the DNA Subcommittee had reviewed
OCME's response to the allegations and over 1700 pages of supporting
documentation.
The letter stated the "DNA Subcommittee concludes it was appropriate
for the OCME to use 31 PCR cycles in accordance with the OCME's validated
casework protocols" and that "[b]ased on the validations performed by the
OCME, the DNA Subcommittee believes that the OCME could, using their
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LCN methodology, potentially identify a major contributor to a DNA mixture
regardless of the number of minor contributors." It also stated that "OCME
performed adequate performance checks prior to the use of Versions 2.0 and
2.5 [of FST]" and "[a]ccordingly, the DNA Subcommittee [did] not believe
that any re-validation was required." In addition, "OCME used reasonable
scientific methods to estimate the role of allelic drop-out in [its] FST
software." O'Connor felt that the letter represented an acceptance of OCME's
LCN DNA testing methodology by members of the relevant scientific
community.
On cross-examination, O'Connor testified that LCN DNA profiles can be
uploaded to state and local databases, but the FBI does not allow them in the
national database. The FBI Laboratory DNA Case Work Unit (DCU), Case
Acceptance Policy, states that "the usage of test strategies to enhance the
detection of DNA, sometimes referred to as . . . LCN testing, is currently being
researched by the FBI laboratory; however, none have yet demonstrated the
necessary reliability for use in forensic case work by the DCU nor [are any]
approved for uploading [into CODIS]." O'Connor disagreed that the FBI had
deemed LCN testing unreliable and claimed that the FBI was not commenting
on OCME's research or validation but, rather, was only commenting that
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through its own research, the FBI had not yet demonstrated the "necessary
reliability to be used in their casework."
O'Connor acknowledged that there are members of the relevant scientific
community that oppose the use of LCN testing and likelihood ratios in
criminal casework. He claimed that was not surprising because "there have
been dissenters [to] every single technology that has been used in forensic
DNA since the beginning." He was unaware of any current dissenters to high
copy number testing but said in the early days there were people opposed to its
use in criminal cases.
Howard Baum, Ph.D., also testified for the State as an expert in forensic
DNA analysis and the statistical significance of those results, molecular
biology, and LCN DNA analysis. Baum began working for OCME in 1990.
He was tasked with setting up OCME's DNA laboratory. Early on in his role
as Technical Leader, Baum reviewed every DNA case processed by the
laboratory.
Baum worked at OCME for eighteen years and served as its Deputy
Director for his last eight years. He also retained his position as Technical
Leader and in that role was "responsible for directing and reviewing validation
of new and modified techniques" and oversaw the validation of OCME's LCN
DNA testing. Baum left OCME in 2008.
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Baum considered LCN DNA testing to be "an extension of an existing
methodology" rather than a new methodology. He explained that LCN testing
is "basically performed the same way as high copy number . . . testing." DNA
is extracted, quantified, and amplified "essentially in the same way, but with
lower amounts." Even though amplification is run three times, the DNA is
"still separated the same way [and] the peaks or alleles are detected the same
way."
Baum related that in the late 1990s, Gill published a paper addressing
LCN DNA analysis. At the time, less than 200 or 300 picograms was
considered LCN and analysts were unable to obtain satisfactory DNA profiles
from such samples. Gill determined that DNA profiles could be obtained from
smaller amounts of DNA by increasing the number of amplification cycles.
Gill recognized that the analysis had to account for artifacts such as peak
imbalance and allelic drop-in and drop-out. He suggested that by amplifying
more than once and developing a consensus profile, the effects of these
artifacts could be mitigated. Based on Gill's work, OCME began to research
LCN DNA testing. The research phase took several years. Once a protocol
was established the validation phase began.
Validation involved multiple experiments to test the limits of DNA
detection and issues with artifacts. One goal during validation was to
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minimize or mitigate the artifacts. During the four to five years of research
and validation, OCME scientists also conferred with other laboratories that
were working on LCN testing. Baum testified that OCME's LCN validation
was the most extensive validation he had ever overseen.
OCME submitted the validation data to the DNA Subcommittee, which
made a binding recommendation to the CFS that OCME be permitted to
employ LCN testing in forensic case work. OCME's protocols, which were
approved by the DNA Subcommittee and the CFS, required thirty-one PCR
cycles, three cycles of amplification, the formation of a consensus profile, and
considered artifacts that could occur. Baum identified the members of the
DNA Subcommittee as members of the relevant scientific community.
Baum claimed that the LCN technique was generally accepted within the
relevant scientific community, "but not with unanimity." He recalled that in
the mid-1990s there was also opposition to conventional STR testing by some
members of the relevant scientific community. One objector was Bruce
Budowle, who oversaw the FBI's research division. By the late 1990s, the FBI
instituted STR testing.
Baum testified that Butler was a member of the relevant scientific
community. In one of his reference books, Butler pointed out "some of the
concerns and how to solve [them]" regarding LCN DNA testing. Butler also
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commented that replicate amplification strategy, which is used to create a
consensus composite profile, "has become the core feature of reliable low level
DNA testing." Baum stated that consensus profiles had been used for regular
STR typing in the "earlier days of DNA testing," and were now used in "next
generation sequencing" and "mitochondrial DNA sequencing."
A peer-reviewed article that Baum co-authored described the protocol
OCME was using for LCN DNA testing and reported that amplification of 100
or less picograms of DNA generated reproducible results. The article stated
the interpretation protocol achieved 100 percent "accurate allele assignments
for over 107 non-probative case-work samples and 319 forensic case work
samples." The article concluded that LCN DNA testing was "reliable and
robust" and that "an appropriate quality control program" ensures that LCN
DNA testing "is suitable for forensic purposes."
Baum testified that LCN DNA profiles were included in the New York
City and New York State databases but were not allowed in CODIS. He
agreed that some held the view that the profiles were not allowed in CODIS
because they are inherently unreliable, but he did not agree.
Baum contended that the fact that the source code for FST was not
publicly available did not make the program unreliable as long as it was tested
properly. He considered approval by CFS and the DNA Subcommittee to be
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an indication that the program was properly tested. He also asserted that the
2014 SWGDAM Guidelines addressing LCN testing would not have been
issued "unless they felt it was a relevant issue that is being practiced in the
community." Baum noted that in 2015, SWGDAM issued "Guidelines for the
Validation of Probabilistic Genotyping Systems" that were significant because
probabilistic genotyping systems were "an important issue that is being
practiced in the community and gaining more acceptance and more usage."
Baum testified that PowerPlex Fusion was developed "because the FBI
increased the number of required loci from 13 to 20" and the new program was
needed to meet that requirement. Baum was aware that OCME began using
PowerPlex Fusion in January 2017 and is no longer using the LCN DNA
testing technique. He viewed the switch as a change to updated technology
and did not believe it rendered the LCN DNA testing technique unreliable.
On cross-examination, Baum agreed that Budowle, Coyle, Arthur
Eisenberg, Angela Van Daal, Ranajit Chakraborty, Eli Shapiro, Deborah L.
Hobson, Jill B. Smerick, and Jennifer A.L. Smith were all members of the
relevant scientific community. He was aware that Eisenberg, Budowle, and
Van Daal had written papers criticizing the use of LCN DNA testing in
forensic criminal cases.
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He testified that Chakraborty was on the DNA Subcommittee when it
considered OCME's LCN validation and that, at the time, Chakraborty was in
favor of validating the technique but has since had a "change of heart."
Baum was asked about a paper written by Budowle, Hobson, Smerick,
and Smith that noted the authors had problems with the use of LCN in forensic
criminal trials. Baum said the paper was an "early objection" regarding the
kits that were in use before Identifiler and that OCME had some of the same
issues with the earlier kits. Baum acknowledged that Budowle and others also
wrote a paper that was critical of LCN DNA testing that was published in the
same issue of the Croatian Medical Journal as Baum's paper.
Baum admitted that some of the members of the DNA Subcommittee
may not have been familiar with LCN DNA testing and that not all members of
the Subcommittee read the documentation that OCME provided to them.
Baum considered LCN DNA testing to be reproducible. However, when
the sample is run three times, the same alleles may not all be present in each
run, but the consensus profile is reproducible. Baum stated that during the
OCME's validation process, which involved 800 samples, they were able to
"account for 100 percent of the validation data by doing three runs."
The Defense Witnesses
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Angela Van Daal, Ph.D. testified as an expert in genetics and molecular
biology, forensics, statistics, and probability. In 1991, Van Daal was hired by
Adelaide Forensic Science (AFS) Laboratory to implement DNA typing for
use in court proceedings. The laboratory used high copy number DNA testing
and she used LCN only for research purposes. After spending seven or eight
years with AFS Laboratory she taught undergraduate and graduate forensic
science courses, followed by consulting in forensic sciences, which involved
reviewing case work issued by forensic labs globally.
Van Daal testified that some laboratories in Europe started using LCN
testing after Gill published his paper describing the technique in 1999 but
OCME was the only laboratory in the United States to implement the
technique. Van Daal believed that Gill was "one of the top five recognized
people in this field." According to Van Daal, the LCN technique used by
OCME differed from that of other laboratories because many of the other
laboratories only do two replicates and must see the allele in both to include it
in a DNA profile, whereas OCME does three replicates and includes an allele
if seen in two out of the three.
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Van Daal testified "[t]here are numerous problems with LCN" testing
including allele drop-out, stutter,5 contamination, and that the results are not
reproducible. She explained that when the replicates are run, "different alleles
are seen in different replicates." Van Daal criticized OCME's use of a
consensus profile, pointing out that alleles that are not part of the consensus
are ignored in the interpretation. Also, because such small amounts of DNA
are involved, the process "is extremely sensitive to contamination." Further,
peak height imbalance makes results difficult to interpret. Van Daal asserted
that "[t]he issues with LCN are widely recognized in the forensic community."
According to Van Daal, the results reported by OCME for the samples
obtained from the Van Winkle Avenue condominium were unreliable. She
explained that LCN mixture samples are very difficult to interpret, and the
difficulty is compounded by missing alleles and imbalanced peak heights. She
claimed that "mixtures can appear to be from a different number of
contributors than they truly are" and opined that Sample 1 appeared to have
"potentially two or more contributors," while Sample 2 "looked to have more
than two contributors."
5
Van Daal explained that stutter is a peak that appears in an electropherogram
that was not the true peak.
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Van Daal maintained that "the main use of LCN [testing] is for
investigative purposes in missing persons cases." In those cases, the sample is
from a single source and can be compared to a known reference sample. LCN
testing is also used in the "medical arena," such as "pre-implantation genetic
diagnosis" where both parents are known, and a single source sample is
involved. Van Daal claimed that in those settings, the stochastic effects
associated with LCN testing could be accommodated, and its use was
"perfectly acceptable".
Van Daal testified that SWGDAM did not endorse the use of LCN
testing. She pointed out that the 2014 SWGDAM Guidelines state that "this
document does not offer an opinion on the viability of any Enhanced Detection
Methods, including Low Template and [LCN] DNA Analysis." She believed
the guidelines were developed "for the laboratories doing DNA identification
work from missing persons and remains" and did not endorse LCN testing in
other applications.
Van Daal opined that the relevant scientific community has not accepted
LCN testing as reliable. She claimed that "numerous" other scientists believed
LCN testing was unreliable and that the majority of scientists she talks to
"would not think it's a reliable method." Van Daal pointed out that in the
twelve years since OCME began using LCN DNA testing, no other laboratory
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in the United States adopted this method. She asserted "that the lack of use of
LCN by laboratories around the world is indicative of the lack of acceptance of
it."
Van Daal further testified that OCME is the only laboratory to use FST
"as a statistical interpretation tool." She opined that FST had "significant
limitations in interpretation." She claimed that most LCN samples are
degraded, and testified that OCME developed a degradation model for FST.
When the model did not work, it was abandoned and FST, therefore, does not
account for degradation. Van Daal opined that the samples from Van Winkle
Avenue tested by OCME appeared to be degraded.
Van Daal criticized OCME's FST validation because it did not account
for degradation and because if you incorrectly "nominate the number of
contributors to the profile . . . the weighting is also incorrect." Van Daal
opined that FST could not give reliable results. She noted that FST has not
been peer reviewed because no one had access to the proprietary code. Van
Daal testified that the relevant scientific community has not accepted FST as
reliable.
On cross-examination, Van Daal said that except for two members, the
members of the DNA Subcommittee were all academics who had never done
forensic work, so she was not sure if they would be considered members of the
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relevant scientific community. Van Daal agreed that Butler was a member of
the DNA forensic science community, and she used his Methodology book as a
textbook for her students. She acknowledged that in the book, Butler
identified several laboratories around the world, including OCME, that were
using enhanced detection protocols in LCN DNA case work. Butler reported
that by early 2010, the United Kingdom's Forensic Science Service (FSS), had
used LCN analysis in over 21,000 cases. He also stated that in 2008, Great
Britain's Crown Prosecution Service concluded after an internal review that
there was "no reason to believe that there [was] any inherent unreliability in
the [FSS's] LCN DNA analysis process[,] provided that it is carried out
according to the prescribed processes and the results are properly interpreted."
Van Daal acknowledged that Andrew Rennison, a British forensic science
regulator, issued a statement that the science underpinning the process was
sound.
Van Daal also acknowledged that Butler devoted an entire chapter in his
Methodology book to "Low Level DNA Testing: Issues, Concerns and
Solutions." Van Daal did not believe that including this chapter showed
general acceptance in the scientific community. She disagreed with Butler's
statement that replicate amplification "has become the core feature of reliable
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low level DNA testing." She stated that her research showed fewer stochastic
effects when samples were not split and subjected to replicate analysis.
Eli Shapiro, Ph.D., testified as an expert in forensic biology and forensic
DNA analysis. He was hired by OCME in 2000 as a training coordinator. In
that role, he trained scientists in laboratory techniques used in DNA forensic
work, including the interpretation of results. Shapiro also did case work at
OCME and was eventually promoted to assistant director. He was in charge of
case work and training for the mitochondrial DNA group. Shapiro was with
OCME for over ten years, but never used FST while employed there.
Prior to joining OCME, Shapiro had no forensic experience. Nor had he
authored an article relating to forensic DNA or statistics in a peer-reviewed
journal. Shapiro was not a member of any professional organization related to
forensic DNA analysis.
Shapiro called FST a "black box" because at first, "OCME would not let
anyone look at the source code" and, therefore, "you could not independently
reproduce that software and get the same result." He acknowledged, however,
that OCME was ordered to release the source code in 2015 or 2016.
Shapiro criticized the estimated drop-out rates used in the validation of
FST. He testified that "if you underestimate drop out which is the basic
strategy of the FST, you will overestimate the strength of the evidence."
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Shapiro claimed that was "part of the design" of FST. "The difference
between a 50% and a 5%" drop-out rate "could make a difference . . . in the
likelihood ratio . . . in the tens of thousands, or hundreds of thousands or
millions."
Shapiro also criticized the "pristine, very high quality buccal exemplar
swabs" used in the validation claiming "[t]hat does not relate at all to . . . the
casework situation" where "touch samples" may have degraded and "have a lot
more drop in than the pristine samples." He asserted that "the dropout rates
and the conditions that were set by the validation are not applicable or relevant
to the actual casework." Shapiro contended that OCME "got lower estimates
of the dropout rates by using very high quality samples [and] by also running
[the samples] with the highest injections to limit the number of drop out[s]."
Shapiro also testified that OCME "changed the numbers" when it did not
observe any drop-out in its validation experiments. According to Shapiro,
OCME arbitrarily lowered drop-out rates below empirically observed rates.
He opined that "for most of the casework examples [in the validation,] the drop
out rates [were] underestimated," and the drop-out rate used by FST for
mixture samples was "way too low." Shapiro asserted that OCME investigated
a degradation model for drop-out rates during validation, but it did not work
and was not included in the final version of FST. He opined that ignoring
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degradation in probabilistic genotyping was not generally accepted in the
scientific community.
Shapiro explained that the number of contributors was "an important part
of the math formula" used by FST to calculate likelihood ratios. He found it
problematic that OCME ignored alleles that appeared only once when
constructing a consensus profile. He also noted that OCME's protocols
ignored peaks appearing on an electropherogram below a certain threshold,
which could be alleles signifying a potential new contributor or potential drop -
out
Shapiro opined that FST was not generally accepted in the scientific
community and that many of the assumptions FST makes are not generally
accepted. For example, "using the original quantitation as the step to setup a
lot of the parameters." In addition, "using preset drop out and drop in rates
without access, or even attempting to match it to the evidence is not generally
accepted in the probabilistic genotyping [community]." Shapiro noted that
FST was the only program that used preset drop-in and drop-out rates and
opined that practice was not generally accepted in the scientific community
"because it's divorced from the real data." He stated that only OCME used
FST and no one other than OCME ever conducted controlled experiments
using FST.
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On cross-examination, Shapiro admitted that he did not review any of
the raw data from the FST validation study. Instead, he "only looked at a
limited part of the validation," which included the "charts, tables, summaries,
conclusions, drop out rates, drop in rates, et cetera."
Shapiro acknowledged that the members of the DNA Subcommittee
were members of the relevant scientific community. He also acknowledged
that Butler was a member of the relevant scientific community and that in his
book, Advanced Topics in Forensic DNA Typing: Interpretation, Butler listed
probabilistic genotyping software programs, including FST, and commented
that such software "can produce standardized and uniformed results from
complex mixtures."
Coyle, who was previously qualified at trial as an expert in DNA
analysis and the statistics associated with it, testified for the defense. She
stated that LCN DNA testing was "very similar" to conventional STR testing
except that "the quantity that you start out with is less than 100 picograms a nd
the test amplifications are performed in triplicate." However, with LCN
testing "there's a higher rate of non-reproducible alleles . . . that are not
reported or included in the consensus profile." She claimed LCN testing was
not reproducible because "you cannot get exactly the same profile most of the
time," and explained that in "normal scientific testing" it was important to get
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the same result each time a piece of evidence was tested to show that the
results are reliable and scientifically accurate.
Coyle maintained that proponents of LCN testing, like Butler, have set
an arbitrary number of three replicates because in their validation studies they
realized they had to run additional replicates to find reproducible alleles. She
noted that in LCN testing, you usually do not obtain the same results when you
run three replicates because many alleles do not repeat. Coyle agreed that all
labs using LCN DNA testing build consensus profiles from triplicate runs.
Coyle disputed that the consensus profiles rendered LCN DNA testing
reproducible and opined that it is not scientifically reliable because it is not
reproducible. She asserted that a consensus profile "really is cherry -picking
only the reproducible alleles and omitting information about all of the other
scientific data that we see." Coyle characterized such profiles as a "slight of
hand" to "force-fit[] the data . . . to make it reproducible."
Coyle claimed that omitting non-repeating alleles from the consensus
profiles is problematic when attempting to determine "how many contributors
are actually in the sample." She maintained that "[i]f you only count the
[alleles] in the consensus profile, you can underestimate the number of true
contributors." To get a correct statistical result from FST, the true number of
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contributors to a DNA sample must be known, and therefore, ignoring the non -
repeating alleles was scientifically incorrect.
Coyle testified that no contaminant alleles were permitted in OCME's
conventional DNA testing, but up to nine contaminant alleles were allowed in
LCN DNA testing. Moreover, OCME often does not know where those alleles
came from and there is "no way, scientifically, to determine if . . . those alleles
are actually contaminants or if they're from another donor that was on the
sample . . . ." Coyle believed it was "scientifically inappropriate" to allow the
contaminant alleles in LCN testing. Moreover, artifacts including stutter,
allele drop in and dropout, and peak height imbalance are all exaggerated with
LCN DNA testing and reduce the ability to reliably interpret the data.
Although Coyle recognized that it was appropriate to use LCN DNA
testing to identify skeletal remains in the context of missing persons, she
maintained that "[m]issing persons identifications [are] not the same as
criminal casework where you're dealing with very trace amounts of DNA with
high contamination in the background." Coyle testified that crime scene
samples are often contaminated because "a lot of the crime scene personnel are
not trained in [LCN] testing and how to collect [samples]." She opined that
LCN testing "should not be used [in] criminal case work because of the
contamination issues and the difficulty in interpreting the PCR artifacts." She
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further opined that LCN DNA testing was not generally accepted by the
scientific community for use in a forensic setting "because of the high
contamination risk." On cross-examination, she acknowledged that the LCN
testing technique was the same whether used for criminal casework or missing
persons identification.
Coyle was aware that there were laboratories in other countries that use
LCN DNA testing, but she was unfamiliar with their procedures and did not
know which used the technique for criminal casework. She noted that while
Gill favored using LCN testing as a tool, he did not represent the entire
forensic science community. She identified Budowle, Van Daal, Shapiro, and
Eisenberg as other scientists who do not believe LCN testing is reliable. She
claimed that many authors "have questions and concerns about [LCN] testing."
Coyle noted a 2008 letter to the editor of the International Journal of Legal
Medicine signed by six authors stated:
[T]he stochastic effects associated with the small
amount of template, allele drop-out and drop-in,
exaggerated peak [im]balance, and stutter coupled
with the diminished ability to ascertain the tissue
source of DNA samples or how long they have been
associated with an article, dramatically reduced the
weight that can be attached to the finding of an LCN
DNA profile match. Given the acknowledged lack of
consensus in [] interpretation, among other concerns,
as well as the availability of viable alternative
approaches . . . it is unlikely that LCN test[ing] . . .
will be embraced by crime laboratories in the [U.S.] or
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that such results would be deemed to be admissible if
they were challenged.
Coyle emphasized that LCN testing was still not accepted by most crime
laboratories in the United States.
Coyle identified an article titled "Low Copy Number Typing Has Yet to
Achieve General Acceptance." The article was critical of OCME's use of LCN
DNA testing, stating: "The OCME approach is inconsistently applied and
overstates the weight of the evidence." A 2001 article titled "Low Copy
Number Considerations and Cautions," stated that the success rate of LCN
testing is low and "[o]ften, the results cannot be interpreted or are meaningless
for the case." The authors of that article, Budowle, Smerick, Hobson, and
Smith, all worked in the in the FBI's laboratory division.
Coyle noted that while the 2014 SWGDAM Guidelines provided
guidance to laboratories interested in LCN technology, the guidelines did not
impose standards, endorse the technology, or approve it for use.
Coyle criticized OCME's FST validation, noting that when DNA samples
were treated with ultraviolet light, which was similar to exposing them to
sunlight, OCME "could not effectively model or use the FST." In these
degraded samples, OCME "could not distinguish between people who had
actually touched items and people who had never touched the item" and there
was "a lot of false matching due to the partialness of the profiles that they
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obtained back." Coyle contended that OCME could not determine consistent
drop-out rates for degraded samples, so FST uses drop-out rates for pristine
samples. She opined that it was not generally accepted in the scientific
community to ignore degradation when calculating genotyping statistics.
Coyle further opined that FST was not generally accepted by the
scientific community. She explained that FST was an in-house software
program that was not commercially available and could not be tested by
anyone else. According to Coyle, other members of the scientific community
believe FST is not reliable including Budowle and Chakraborty, who was a
member of the DNA Subcommittee that approved FST and who has since
changed his mind.
On cross-examination, Coyle acknowledged that Butler devoted an entire
chapter to LCN DNA testing in his Methodology book, which listed several
laboratories that performed LCN DNA testing. She agreed that two of the
laboratories in the United Kingdom as well as laboratories in the Netherlands
and New Zealand were using the technique for criminal cases in 2018, and that
the scientists working at those laboratories were members of the relevant
scientific community. Coyle also agreed that Butler reported that increasing
the number of PCR cycles from twenty-eight to thirty-one improved the
success rate for a correct DNA profile.
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Coyle testified that using LCN DNA testing to exonerate someone was a
different matter than using the technique to incriminate someone. She
conceded that when an analyst performs the testing, they do not know whether
the test results will implicate a defendant. She identified issues with
contamination as the basis for treating the results differently.
Coyle acknowledged that the members of the DNA Subcommittee were
members of the relevant scientific community. She agreed that the DNA
Subcommittee reviewed OCME's LCN DNA testing protocols in 2005, 2014,
and 2017, and that in an October 2010 letter, the DNA Subcommittee also
made a binding recommendation to the CFS that "the use of FST by the OCME
be approved for forensic casework."
Coyle further acknowledged that the 2014 SWGDAM Guidelines state
that if a laboratory chooses to do LCN testing "it is strongly recommended that
the laboratory incorporate [] replicate amplification analysis." The guidelines
further state: "Where replicate analysis is required, the laboratory must have an
interpretation procedure to determine how to generate the final consensus
DNA profile." Coyle agreed that OCME performs replicate amplification and
has written procedures for generating a consensus profile.
Coyle also acknowledged that between 2000 and 2010, the FSS lab in
Great Britain processed 21,000 items of evidence using LCN testing. She
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understood that some other scientists disagreed with her and "believe[d] in the
three-replicate process and building a consensus profile."
THE TRIAL COURT'S FRYE HEARING DECISION
On August 23, 2018, the trial court issued a lengthy written opinion that
concluded the State had "met its burden under the Frye standard and clearly
established that the LCN DNA testing technique and the FST [are] generally
accepted in the relevant scientific community and therefore, admissible." An
accompanying order denied defendant's motion for a new trial.
The court found O'Connor, Baum, Van Daal, and Shapiro to be credible.
The court found Coyle "credible in her knowledge of scientific principles
concerning LCN DNA" but "less than credible, when she testified that LCN
DNA testing methods were not reliable in forensic cases where the information
was used to include a defendant as a suspect, but were reliable and should be
used in cases where the information was utilized to exclude a defendant as a
suspect."
The court took note of five scientific articles submitted by the defense
that were critical of LCN testing and FST, and seven articles submitted by the
State in support of the techniques, along with the Butler books. The court also
took judicial notice of twenty-one New York state court decisions, fourteen of
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which were unpublished. 6 In all but two of the cases, the courts determined
that LCN and FST evidence was admissible after holding Frye or Daubert7
hearings or determining that a Frye hearing was unnecessary. In one
unpublished case, a Frye hearing was ordered but never took place. In the
final case, People v. Collins, 49 Misc. 3d 595, 629 (N.Y. Sup. Ct. 2015), both
LCN DNA and FST evidence were held to be inadmissible under the Frye
standard.
In finding that both LCN testing and FST met the Frye standard for
admissibility, the court relied on the similarities between LCN and
conventional high copy number testing, endorsement of the LCN technique by
Gill and Butler, who the court identified as leading scientists in the field,
OCME's "extensive validation procedures," the approvals of the CFS and DNA
Subcommittee, and the New York court decisions. The court concluded that it
could not "be credibly argued . . . that LCN DNA results are reliable to rule
suspects out, but not to implicate suspects." It further determined:
LCN DNA testing is not a novel technique, it is not
junk science, it is not even experimental; it is
demonstrable, has been used by renowned scientists
here and abroad, and validated and approved multiple
6
Unpublished opinions do not constitute precedent, are not binding, and with
limited exceptions, shall not be cited by any court. R. 1:36-3.
7
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
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times . . . by the DNA Subcommittee and the [CFS].
The method has been discussed favorably (and
unfavorably) in learned treatises and ruled accepted in
the scientific community in a majority of judicial
proceedings.
The court also found that defendant's concerns regarding contamination and
stochastic effects had been addressed by OCME's LCN testing protocols and
those concerns go to the weight of the evidence, not its admissibility. This
appeal followed.
We granted leave to appear as amicus curiae to the Office of the Public
Defender. Defendant raises the following points for our consideration:
POINT ONE
THE TRIAL COURT ERRED IN ITS
CONCLUSION, FOLLOWING THE POST-
VERDICT FRYE HEARING ORDERED BY THIS
COURT, THAT LOW COPY NUMBER DNA
TESTING ("LCN") AND THE FORENSIC
STATISTICAL TOOL ("FST") UTILIZED IN THIS
CASE MET THE FRYE/HARVEY STANDARD AS
GENERALLY ACCEPTED WITHIN THE
RELEVANT SCIENTIFIC COMMUNITY FOR
FORENSIC DNA TESTING.
....
POINT TWO
THE AFFIDAVIT IN SUPPORT OF THE SEARCH
WARRANT FOR THE VAN WINKLE [AVENUE]
PROPERTY WAS INSUFFICIENT TO ESTABLISH
PROBABLE CAUSE THAT APPELLANT HAD
PARTICIPATED IN THE MURDER OR THAT
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EVIDENCE OF THE MURDER WOULD BE
FOUND AT A SEARCH OF THAT LOCATION.
POINT THREE
THE TRIAL COURT ERRED BY ADMITTING THE
HEARSAY STATEMENTS OF THE DECEASED
VICTIM AS "PRESENT SENSE IMPRESSION."
POINT FOUR
THE TRIAL JUDGE ERRED BY INSTRUCTING
THE JURY, OVER OBJECTION, THAT
APPELLANT'S REACTION TO HIS ARREST WAS
POTENTIALLY RELEVANT TO HIS
"CONSCIOUSNESS OF GUILT."
II.
"In criminal cases, [our Supreme] Court has continued to rely on the
Frye standard to assess [the] reliability" of expert evidence. State v.
Ghigliotty, 463 N.J. Super. 355, 374 (App. Div. 2020) (first alteration in
original) (quoting State v. J.L.G., 234 N.J. 265, 280 (2018)); accord In re
Accutane Litig., 234 N.J. 340, 399 (2018). That standard "requires trial judges
to determine whether the science underlying the proposed expert testimony has
'gained general acceptance in the particular field in which it belongs.'" J.L.G.,
234 N.J. at 280 (quoting Frye, 293 F. at 1014).
"Proof of general acceptance within a scientific community can be
elusive." Harvey, 151 N.J. at 171. It "entails the strict application of the
scientific method, which requires an extraordinarily high level of proof based
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on prolonged, controlled, consistent, and validated experience." Ibid. (quoting
Rubanick v. Witco Chem. Corp., 125 N.J. 421, 436 (1991)). "The proponent
of the technique has the burden to 'clearly establish' general acceptance." State
v. Cassidy, 235 N.J. 482, 492 (2018) (quoting State v. Johnson, 42 N.J. 146,
171 (1964)). "Essentially, a novel scientific technique achieves general
acceptance only when it passes from the experimental to the demonstrable
stage." Harvey, 151 N.J. at 171.
"[T]here are three ways to establish general acceptance under Frye:
expert testimony, authoritative scientific and legal writings, and judicial
opinions." J.L.G., 234 N.J. at 281. "Proof of general acceptance does not
mean that there must be complete agreement in the scientific community about
the techniques, methodology, or procedures that underlie the scientific
evidence." Ghigliotty, 463 N.J. Super. at 375 (quoting State v. Chun, 194 N.J.
54, 91-92 (2008)). Nor does it "require complete agreement over the accuracy
of the test or the exclusion of the possibility of error." Harvey, 151 N.J. at
171. Thus, "the party proffering the evidence need not show infallibility of the
technique nor unanimity of its acceptance in the scientific community."
Ghigliotty, 463 N.J. Super. at 383 (quoting Cassidy, 235 N.J. at 492). "[T]he
State's burden is to prove that the . . . test and the interpretation of its results
are non-experimental, demonstrable techniques that the relevant scientific
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community widely, but perhaps not unanimously, accepts as reliable." Ibid.
(alterations in original) (quoting Harvey, 151 N.J. at 171).
"Generally, appellate courts apply an abuse of discretion standard to the
evidentiary rulings of a trial court." In re Commitment of R.S., 339 N.J.
Super. 507, 531 (App. Div. 2001), aff'd, 173 N.J. 134 (2002). However, "when
the matter involves novel scientific evidence in a criminal proceeding, 'an
appellate court should scrutinize the record and independently review the
relevant authorities, including judicial opinions and scientific literature.'" Ibid.
(quoting Harvey, 151 N.J. at 167); accord State v. Pickett, 466 N.J. Super. 270,
303 (App. Div. 2021). Therefore, when a trial court applies the Frye test, we
employ a de novo standard of review. Ibid.
"While the trial court is in a better position to shape the record and make
credibility determinations, 'appellate courts can digest expert testimony as well
as review scientific literature, judicial decisions, and other authorities.'" State
v. Torres, 183 N.J. 554, 567 (2005) (quoting Harvey, 151 N.J. at 167).
The appellate court should carefully review the
relevant authorities in determining the correctness of
the decision to admit or exclude the disputed
testimony. In short, the appellate court need not be as
deferential to the trial court's ruling on the
admissibility of expert scientific evidence as it should
be with the admissibility of other forms of evidence.
[Ibid. (citing Harvey, 151 N.J. at 167).]
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In Harvey, the Court further explained:
In the rapidly changing world of modern science,
continuing research may affect the scientific
community's acceptance of a novel technology. By
reviewing posttrial publications, an appellate court can
account for the rapid pace of new technology. The
continuing review also recognizes that general
acceptance may change between the time of trial and
the time of appellate review.
[151 N.J. at 167-68 (citing State v. Bible, 858 P.2d
1152, 1189 n.33 (Ariz. 1993)).]
Applying these principles, we engage in the following de novo review of
the admissibility of the LCN testing and FST evidence.
THE FST EVIDENCE
The State relies on approval by the DNA Subcommittee and case law
from New York to establish general acceptance of FST by the relevant
scientific community. Recently, however, the New York Court of Appeals
cast considerable doubt on the New York lower court decisions admitting LCN
and FST evidence. People v. Williams, 147 N.E.3d 1131, 1140-42 (N.Y.
2020). The court cogently observed that "repetition of a single, questionable
judicial determination does not strengthen or add validity to such ruling, and it
defies logic that an error, because it is oft-repeated, somehow is made right."
Id. at 1140.
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The court explained that "FST is a proprietary program exclusively
developed and controlled by OCME. The sole developer and the sole user are
the same." Id. at 1141. It concluded that those circumstances were "an
invitation to bias." Ibid. The court recognized that FST was approved by the
DNA Subcommittee but found "that insular endorsement [was] no substitute
for the scrutiny of the relevant scientific community." Id. at 1142. Moreover,
"rely[ing] solely on the Subcommittee's approval as dispositive of the general
acceptance would . . . supplant the courts' obligation to ensure" the Frye
standard has been met. Ibid. The court further commented that internal
validation by OCME and approval by the DNA Subcommittee were "no
substitute for community review." Ibid. It cautioned that "Frye demands an
objective, unbiased review" and that "FST should be supported by those with
no professional interest in its acceptance." Ibid. The court held that the trial
court abused its discretion by admitting LCN and FST evidence without
holding a Frye hearing. Id. at 1143.
In a recent published decision considering whether the source code and
related documentation for a different probabilistic genotyping software
program was required to be disclosed to a defendant for purposes of
challenging the reliability of the software at a Frye hearing, the court
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commented on the reliability of FST. Pickett, 466 N.J. Super. at 278-79, 307-
08. The court stated:
For example, as part of a Daubert hearing, a federal
judge unsealed the source code of [FST], a
probabilistic genotyping software that had been
developed and used by the [OCME]. In 2017, that
review demonstrated the software -- employed in
thousands of criminal prosecutions -- was unreliable,
did not work as intended, and had to be eliminated.
[Id. at 278 (footnote omitted).]
In a more detailed discussion, the court commented:
The troubling FST case study demonstrates a
rational basis for independent source-code review of
probabilistic DNA programs like TrueAllele. After
being subjected to an adversarial audit when
ProPublica obtained an order for the release of FST's
source code, it was revealed that FST had a problem
with a certain calculation that was only learned
through the adversarial examination of the source
code. Steven M. Bellovin et al., Seeking the Source:
Criminal Defendants' Constitutional Right to Source
Code, 17 Ohio State Tech. L.J. 1, 38 (2021). The
audit discovered that certain "loci were removed from
the likelihood ratio calculation" without "notice, either
intended or actual, provided to the user of FST," nor
any "indication that this behavior [was] intended
during [the] examination of FST-related publications
and the FST [v]alidation materials." Ibid.; see also
Stephanie J. Lacambra et al., Opening the Black Box:
Defendants' Rights to Confront Forensic Software,
Champion 28, 30 (May 2018) (providing a snippet of
the source code and explaining that "if the sum of
frequencies is greater than 0.97, a row in the
raceTable is removed"). As a result, the software was
overestimating the likelihood of guilt. Beyond
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undocumented calculations, it was discovered that
FST exhibited code smells, which suggested that "the
program is below normal professional standards and
may have other, not yet detected problems" which are
"extremely difficult to detect . . . without access to
[the] source code." Bellovin et al., 17 Ohio State
Tech. L.J. at 39. At oral argument, the Innocence
Project pointed out that, like TrueAllele, FST was
subject to multiple validation studies but errors were
still found in the source code, proving that validation
of this type of evidentiary software is not
determinative when evaluating computer science
reliability.
[Id. at 307-08 (alterations in original) (footnotes
omitted).]
Citing to a New York Times article, the court further stated that
"production and review of the code for the since-discontinued FST program
proved crucial to identification of significant errors, albeit not before
compromised test results had already been used in many prosecutions." Id. at
310 (citing Lauren Kirchner, Doubts and DNA Evidence, N.Y. Times, Sept. 5,
2017, at A1). The court remarked that it could not "ignore these facts when
evaluating whether there exists a rational basis for access to the proprietary
information here." Ibid. It concluded that "FST serve[d] as [an] important
cautionary tale[]." Id. at 323.
The State contends the comments were dicta that "must be wholly
disregarded" because there was no adversarial testing of the statements made
by the court. We disagree. The scholarly analysis undertaken in Pickett is
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sound, illuminating, and persuasive. We give these carefully considered
statements due consideration. See In re A.D., 441 N.J. Super. 403, 422-23
(App. Div. 2015) ("Mere obiter may be entitled to little weight, while a
carefully considered statement . . . though technically dictum, must carry great
weight . . . ." (quoting Barreiro v. Morais, 318 N.J. Super. 461, 468 (App. Div.
1999))), aff'd o.b., 227 N.J. 626 (2017).
As we have noted, our standard of review is de novo. R.S., 339 N.J.
Super. at 531. We apply the more stringent Frye test for admissibility.
Ghigliotty, 463 N.J. Super. at 374. It was the State's burden to "'clearly
establish' general acceptance" of the FST software. Cassidy, 235 N.J. at 492
(quoting Johnson, 42 N.J. at 171). In our view, the State did not satisfy its
burden of proof.
The State's reliance on New York cases to clearly establish general
acceptance is unpersuasive. Despite the Second Circuit finding no abuse of
discretion in a trial court's decision to admit FST evidence, Jones, 965 F.3d at
161-62, the Court of Appeals in Williams was critical of the many New York
decisions admitting FST evidence and disapproved of the reliance by those
courts on OCME's validation studies and approval by the DNA Subcommittee.
147 N.E.3d at 1140-42. The only other New York case cited by the State is
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unpublished.8 The New York cases do not clearly establish general
acceptance.
Another method to establish general acceptance under Frye is through
expert testimony. J.L.G., 234 N.J. at 281. Expert testimony in support of FST
was provided by O'Connor and Baum. O'Connor, who was working at OCME
when FST was developed and implemented, described OCME's extensive
validation process for the software, and its approval by the DNA
Subcommittee and CFS. Baum, who left OCME before FST was developed
and implemented, testified that likelihood ratios are commonly used to
interpret DNA mixtures. He believed the program was reliable based on
OCME's validation and the approvals by the DNA Subcommittee and CFS.
An internal validation of proprietary software cannot establish general
acceptance because the Frye standard requires that "the relevant scientific
community widely, but perhaps not unanimously, accepts [the software] as
reliable." Ghigliotty, 463 N.J. Super. at 383 (quoting Harvey, 151 N.J. at 171).
O'Connor claimed that the relevant scientific community for LCN DNA testing
is international. Certainly, the relevant scientific community for probabilistic
genotyping software programs extends beyond the scientists at OCME.
8
See R. 1:36-3; Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48
(2001) (Verniero, J., concurring) (explaining that unreported decisions "serve
no precedential value").
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Although likelihood ratios may be generally accepted in the relevant scientific
community as a method of determining the probability that an individual is a
contributor to a DNA sample, the fact that FST calculates likelihood ratios
does not establish the reliability or general acceptance of the program itself.
Because no entity other than OCME used or has examined FST, we must
determine whether approval by the DNA Subcommittee and CFS establishes
general acceptance in the relevant scientific community. By statute, the CFS
must "develop minimum standards and a program of accreditation for all
forensic laboratories in New York state" and approve "forensic laboratories for
the performance of specific forensic methodologies." N.Y. Exec. Law § 995 -
b(1) (McKinney 2021). "The minimum standards and program of accreditation
[are] designed to . . . ensure that forensic analyses, including forensic DNA
testing, are performed in accordance with the highest scientific standards
practicable . . . ." Id. at § 995-b(2)(b).
In accordance with New York law, the CFS has established a DNA
Subcommittee. Id. at § 995-b(13)(a). The chair of the Subcommittee is
appointed by the chair of the CFS, and the remaining six members of the
Subcommittee are appointed upon the recommendation of either the
Commissioner of the Department of Health or the Commissioner of Criminal
Justice Services, with two members each representing the disciplines of
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population genetics and forensic science, one member from the field of
molecular biology, and one member from the field of laboratory standards and
quality assurance regulation and monitoring. Ibid.
By statute, "[t]he DNA [S]ubcommittee shall assess and evaluate all
DNA methodologies proposed to be used for forensic analysis, and make
reports and recommendations to the [CFS] as it deems necessary." Id. at §
995-b(13)(b). In addition, "[t]he DNA [S]ubcommittee shall make binding
recommendations for adoption by the [CFS] addressing minimum scientific
standards to be utilized in conducting forensic DNA analysis including, but not
limited to, examination of specimens, population studies and methods
employed to determine probabilities and interpret test results." Ibid. "Upon
the recommendation of the DNA [S]ubcommittee . . . the [CFS] shall designate
one or more approved methodologies for the performance of forensic DNA
testing, and shall review and act upon applications by forensic DNA
laboratories for approval to perform forensic DNA testing." Id. at § 995-b(11).
Defense witnesses Shapiro and Coyle acknowledged that the members of
the DNA Subcommittee were members of the relevant scientific community.
Approval of FST for forensic casework by the DNA Subcommittee thus
establishes acceptance of the program by at least certain members of the
relevant scientific community. The issue is whether acceptance by the DNA
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Subcommittee establishes "general acceptance" by the scientific community.
Frye, 293 F. at 1014.
Because this is a criminal matter, the State's burden is to "clearly
establish," Cassidy, 235 N.J. at 492 (quoting Johnson, 42 N.J. at 171), that the
challenged technique is "widely, but perhaps not unanimously, accept[ed] as
reliable" by the relevant scientific community, Ghigliotty, 463 N.J. Super. at
383 (quoting Harvey, 151 N.J. at 171). Standing alone, approval by the DNA
Subcommittee does not clearly establish that FST is widely accepted as
reliable. Therefore, the FST evidence was improperly admitted into evidence.
FST was used to calculate likelihood ratios only for Sample 2. Huyck
testified that FST calculated that the mixture in Sample 2 "was approximately
71.2 million times more likely to have come from . . . Vernieri and another
person rather than that mixture coming from two unknown, unrelated people."
The State contends admitting the testimony regarding Sample 2 was harmless
error given the other evidence in the case. We disagree.
As recognized in Pickett, "DNA evidence is powerful and compelling."
466 N.J. Super. at 306. For the reasons discussed below, we have also
determined that the testimony regarding sample 1 was inadmissible.
The only other evidence in the case linking defendant to the crime was
his visit to Vernieri two days earlier, the shoe imprint, testimony regarding his
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cell phone records, which was disputed by his expert, and DNA evidence from
Vernieri's fingernail clippings. This DNA evidence did not positively identify
defendant. Instead, it indicated defendant could not be excluded as a
contributor and the profile would be expected to occur in 1 of 333 Caucasian
individuals. We do not find this evidence to be overwhelming.
In sum, admitting the evidence regarding Sample 2 "raise[s] a reasonable
doubt as to whether [it] led the jury to a verdict it otherwise might not have
reached." State v. R.B., 183 N.J. 308, 330 (2005) (second alteration in
original) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)). We therefore
reverse defendant's conviction and remand for a new trial.
THE LCN DNA TESTING
We next address the State's reliance on the LCN DNA testing. As with
FST, the State relies on OCME's internal validation, approval by the DNA
Subcommittee, and case law from New York to establish general acceptance of
LCN DNA testing by the relevant scientific community. For the reasons
discussed above, those considerations alone are insufficient to establish
general acceptance. Moreover, even though the State provides additional
support for its position regarding LCN DNA testing, it has failed to clearly
establish general acceptance of the technique by the relevant scientific
community.
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In addition to relying on New York state case law, the State cites to two
federal district court cases. In the one published case, the district court found
that LCN DNA evidence was admissible under Daubert, but it did not make
any findings as to whether the technique was generally accepted in the
scientific community. United States v. Morgan, 53 F. Supp. 3d 732, 740-47
(S.D.N.Y. 2014), aff’d, 675 Fed. Appx. 53 (2d Cir. 2017). In affirming the
district court's decision, the Second Circuit commented that
although LCN analysis is supported by significantly
weaker evidence of reliability than traditional DNA
analysis, the district court did not abuse its discretion
. . . in holding that the proffered expert evidence met
the reliability standards of [Fed. R. Evid.] 702: We
cannot say that its ruling here was "manifestly
erroneous."
[Morgan, 675 Fed. Appx. at 55-56 (quoting
Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d
256, 265 (2d Cir. 2002)).]
Notably, the Second Circuit "express[ed] no opinion on the propriety of
admitting the results of LCN testing in other cases." Id. at 56.
Morgan analyzed admissibility under Daubert, which only "requires the
district court to ensure 'that an expert's testimony both rests on a reliable
foundation and is relevant to the task at hand.'" Morgan, 675 Fed. Appx. at 55
(quoting Daubert, 509 U.S. at 597). "Although Frye has been replaced in the
federal court system in favor of the more lenient standards of [Fed. R. Evid.]
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702 as set forth in Daubert, in New Jersey, with the exception of toxic tort
litigation, Frye remains the standard." State v. Doriguzzi, 334 N.J. Super. 530,
539 (App. Div. 2000). "Thus, the test in criminal cases remains whether the
scientific community generally accepts the evidence." Harvey, 151 N.J. at 170
(citing State v. Spann, 130 N.J. 484, 509 (1993); Windmere, Inc. v. Int'l Ins.
Co., , 105 N.J. 373, 386 (1987)); accord Doriguzzi, 334 N.J. Super. at 539.
Moreover, an opinion by a federal district court or parallel federal
appellate court is not binding precedent, especially as to the interpretation of
our rules of evidence. State v. Reyes, 140 N.J. 344, 357 (1995).
In an unpublished opinion, the Western District of New York concluded
that LCN DNA testing was generally accepted in the scientific community.
The court relied, in part, on the district court's decision in Morgan, the trial
court's decision in this case, and People v. Megnath, 898 N.Y.S.2d 408 (Sup.
Ct. 2010), aff’d, 79 N.Y.S.3d 557 (App. Div. 2018),9 a trial court decision that
was roundly criticized by the New York Court of Appeals in Williams, 147
N.E. 3d at 1140, which found the lower court's ruling "was an analysis that did
not adequately assess whether OCME's LCN testing was generally accepted
within the relevant scientific community." Notably, in Williams the Court of
9
Apparently, the defendant in Megnath did not raise the issue of the
admissibility of the DNA evidence on appeal as the Appellate Division does
not mention or address it in its opinion.
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Appeals observed that "the People were unable to cite any New York appellate
cases, or out-of-state case law, assessing the general acceptance of LCN
evidence." 147 N.E.3d at 1140. As we have noted, the Court of Appeals was
critical of lower court decisions finding that LCN testing was generally
accepted based on OCME's internal validation and evidence that the method
was used in other countries. Ibid. For these reasons, the unpublished New
York trial court opinion is not persuasive. It also has no precedential value.
See e.g., Meadowlands Basketball Ass'n v. Dir., Div. of Taxation, 340 N.J.
Super. 76, 83 (App. Div. 2001) (interpretative decision by a New York tax
appeal tribunal of a similar New York statute is "not binding or controlling");
State v. Warriner, 322 N.J. Super. 401, 407 (App. Div. 1999) (Connecticut
state court and federal district court decisions are not binding on our courts).
In the final case cited by the State, a Maryland appellate court affirmed a
trial court's determination that LCN DNA evidence was admissible under the
Frye standard. Phillips v. State, 126 A.3d 739, 748-51 (Md. Ct. Spec. App.
2015). The DNA sample at issue was analyzed by the Prince Georges County
DNA laboratory. Id. at 748. The court concluded that the "laboratory used
generally accepted scientific methodology to analyze the sample," relying
upon the laboratory's compliance with the FBI Quality Assurance Standards
and its finding that other forensic laboratories used the same methodology
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employed by the Prince George's laboratory. Id. at 748. The court did not
identify the other laboratories and provided no details regarding the technique
employed other than to state that the LCN testing was "particularly susceptible
to stochastic effects—random errors that make accurately analyzing the DNA
more difficult—and increased risks of contamination." Id. at 749.10
We conclude that the two published cases relied upon by the State do not
clearly establish that LCN DNA evidence has achieved general acceptance in
the relevant scientific community.
As to authoritative scientific and legal writings, in addition to the l etters
authored by the DNA Subcommittee, the State points to the 2014 SWGDAM
Guidelines and seven peer-reviewed scientific articles. SWGDAM "serves as
a forum to discuss, share and evaluate forensic biology methods, protocols,
training, and research to enhance forensic biology services as well as provide
recommendations to the FBI Director on quality assurance standards for
forensic DNA analysis." SWGDAM Mission Statement, Sci. Working Grp. on
DNA Analysis Methods (SWGWAM), https://www.swgdam.org (last visited
Jan. 18, 2022). When the group issued the 2014 SWGDAM Guidelines, it was
comprised of "approximately [fifty] scientists representing Federal, State and
10
The State's witnesses did not identify the Prince George County's laboratory
as a facility that was still performing LCN testing for use in criminal cases.
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Local forensic DNA laboratories in the United States and Canada." Although,
as Van Daal pointed out, the guidelines state that SWGDAM "does not offer an
opinion on the viability of any Enhanced Detection Methods, including Low
Template or [LCN] DNA Analysis," the guidelines also acknowledge that
laboratories "are engaging in methods that will enhance the recovery from low
quality DNA samples" and state SWGDAM's purpose is to "provide[]
guidelines for the use of Enhanced Detection Methods as applied to forensic
casework DNA analysis."
The guidelines recommend procedures followed by OCME including
replicate amplification and development of a consensus profile. Baum, who at
one time was a member of SWGDAM, testified that the guidelines would not
have been issued unless SWGDAM felt LCN testing "was a relevant issue that
[was] being practiced in the community."
Regarding the seven peer-reviewed scientific articles cited by the State,
there was no testimony regarding six of the articles and the State has not
explained how the articles support the view that LCN DNA testing is generally
accepted. Baum testified that the remaining article, which he co-authored with
at least one other OCME scientist, described the protocol OCME was using for
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LCN DNA testing.11 Although the authors concluded that the LCN DNA
protocols and interpretation guidelines used by OCME were "reliable and
robust," that conclusion by OCME personnel does not adequately demonstrate
general acceptance in the scientific community.
Finally, expert testimony elicited at the Frye hearing demonstrated that
there are conflicting views on whether LCN DNA testing is accepted by the
scientific community for use in criminal casework. Baum testified that LCN
testing was not a new technique; it was an extension of the conventional high
copy number testing methodology. He explained that LCN testing was first
developed by Gill in the United Kingdom, and identified Butler, who devoted a
chapter in his Methodology book to LCN DNA testing, as a member of the
scientific community that approved of LCN testing.
O'Connor identified Gill, Buckleton, Haned, and Butler as members of
the scientific community that supported LCN DNA testing. He testified that
laboratories in Australia, Italy, Belgium, the Netherlands, New Zealand,
Croatia and Spain all used LCN DNA techniques in criminal casework. Baum
and O'Connor both admitted that LCN testing was not unanimously accepted
11
Theresa Caragine et al., Validation of Testing & Interpretation Protocols for
Low Template DNA Samples Using AmpFlSTR Identifiler, 50 Croatian Med.
J. 250 (2009).
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by the scientific community but recalled that there was also opposition to
conventional high copy number testing early on.
Van Daal testified that some laboratories in Europe started using LCN
DNA testing after Gill, whom she acknowledged was highly regarded in the
field, published his paper describing the technique in 1999. She believed,
however, that OCME's LCN protocols differed from those of other
laboratories. She noted there were acceptable uses for LCN DNA testing, such
as "for investigative purposes in missing persons cases" and in the "medical
arena," for instance in "pre-implantation genetic diagnosis."
Van Daal claimed that many other scientists believed LCN testing was
unreliable but named only Budowle and Chakraborty. She agreed that Butler
was a member of the relevant scientific community and that he reported in his
Methodology book that the FSS in the United Kingdom had used LCN analysis
in over 21,000 cases by early 2010. She also agreed that a forensic science
regulator in the United Kingdom had issued a statement concluding that the
science underlying LCN testing was sound.
Coyle testified that LCN DNA testing was "very similar" to conventional
STR testing. She maintained that it was appropriate to use the technique to
identify skeletal remains in the context of missing persons but not for criminal
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casework. But she acknowledged that the LCN testing technique was the same
whether used for criminal casework or missing persons identification.
Coyle identified Budowle, Van Daal, Shapiro, and Eisenberg as
members of the scientific community who do not believe that LCN testing is
reliable. She discussed three articles and one letter critical of LCN DNA
testing written by Budowle, Eisenberg, Van Daal, and others. She
acknowledged that laboratories in the United Kingdom, the Netherlands and
New Zealand were using LCN DNA testing at the time of her testimony, that
the scientists working at those laboratories were members of the relevant
scientific community and acknowledged that other scientists disagreed with
her opinion.
In Harvey, the Court faced a similar issue. In that case, the Court
considered whether a type of DNA testing known as polymarker testing was
generally accepted in the scientific community. 151 N.J. at 169-76. The
State's expert explained that the test was technologically and procedurally
similar to the PCR/DQ Alpha test, which courts in New Jersey had already
deemed scientifically reliable. Id. at 162, 172. In addition, the company that
performed the DNA testing, which was not the company that manufactured the
test kit, had conducted validation studies on the test in accordance with
protocols established by the Technical Working Group on DNA Analysis
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Methods (TWGDAM).12 Id. at 172. Six other laboratories in the United States
had also independently verified the accuracy of the test and it was used for
casework or validation studies in approximately thirty to forty laboratories
throughout the United States. Ibid.
The Court found that "[s]cholarly and scientific publications . . .
approve[d] the polymarker test." Id. at 173. Three published articles opined
the polymarker test "was reliable for casework." Ibid. In addition, " a list of
forty-four presentations, posters, lectures, seminars, and workshops in which
forensic scientists discussed issues regarding polymarker-related research,
testing, and results." Ibid. No documents were produced suggesting the test
was unreliable. Id. at 174.
At the time of the Rule 104 hearing in Harvey, there was only one New
York case where polymarker evidence had been admitted. Id. at 175.
However, since the defendant's trial, at least six courts in other jurisdictions
had determined the test was admissible. Id. at 176. The Court was satisfied
that the polymarker test was scientifically reliable and held that the trial court
properly admitted the polymarker evidence. Ibid.
12
TWGDAM was the predecessor to SWGDAM. History of SWGDAM,
https://www.swgdam.org/about-us (last visited Jan. 18, 2022).
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By any measure, the evidence for general acceptance was much stronger
in Harvey than it is here. Whereas in Harvey, six laboratories had
independently verified the accuracy of the polymarker test, the testimony here
only established that OCME had done validation studies on its own LCN DNA
testing technique. In addition, far more laboratories were using the
polymarker test than performing the LCN DNA testing at issue here. Also,
unlike in Harvey, where the defendant produced no scholarly articles disputing
the accuracy of the polymarker test, Coyle testified to three articles and one
letter critical of LCN DNA testing. Moreover, the State's experts referred to
only one published article in support of LCN testing and that article was
written by OCME personnel.
Finally, in Harvey, appellate courts in three other states and the Eighth
Circuit Court of Appeals found the polymarker test was generally accepted in
the scientific community. Id. at 176. Here, the State relies on questionable
New York lower court decisions and an appellate decision from Maryland.
In sum, although there is some evidence supporting a finding of general
acceptance, we conclude that the State has failed to "clearly establish" general
acceptance of OCME's LCN DNA testing technique. Cassidy, 235 N.J. at 492
(quoting Johnson, 42 N.J. at 171). Accordingly, the LCN DNA evidence was
not admissible. As discussed above, the error in admitting this evidence was
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not harmless. Its use also "raise[s] a reasonable doubt as to whether [it] led the
jury to a verdict it otherwise might not have reached." R.B., 183 N.J. at 330
(second alteration in original) (quoting Bankston, 63 N.J. at 273). For this
additional reason, the conviction must be reversed and the retried.
III.
For sake of completeness, we next address defendant's argument that the
affidavit submitted in support of the issuance of a search warrant for the Van
Winkle Avenue property where the disputed DNA was found was insufficient
to establish probable cause. The resulting search revealed evidence of blood,
later determined to contain Vernieri's DNA.
The State contends that defendant's unusual conduct in visiting Vernieri
two days before the murder, the disparities in his account of the visit, his
assertion that he slept until 11:00 a.m. on the date of the murder even thou gh
cell phone records placed his phone behind Vernieri's home at 10:39 a.m.,
Logan's statement that he heard a shriek from downstairs between 10:10 and
10:30 a.m., and defendant's statement that he visited the Van Winkle property
on the date of the murder, provided a sufficient basis for the search warrant.
In considering an application for a search warrant, "[t]he issuing
authority 'must be satisfied that there is probable cause to believe that a crime
has been committed, or is being committed, at a specific location or that
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evidence of a crime is at the place sought to be searched.'" State v. Jones, 179
N.J. 377, 388 (2004) (quoting State v. Sullivan, 169 N.J. 204, 210 (2001)).
"Probable cause for the issuance of a search warrant requires 'a fair proba bility
that contraband or evidence of a crime will be found in a particular place.'"
State v. Chippero, 201 N.J. 14, 28 (2009) (quoting United States v. Jones, 994
F.2d 1051, 1056 (3d Cir. 1993)). "[T]he probable cause determination must be
. . . based on the information contained within the four corners of the
supporting affidavit, as supplemented by sworn testimony before the issuing
judge that is recorded contemporaneously." State v. Marshall, 199 N.J. 602,
611 (2009) (quoting Schneider v. Simonini, 163 N.J. 336, 363 (2000)).
"A search that is executed pursuant to a warrant is 'presumptively valid,'
and a defendant challenging the issuance of that warrant has the burden of
proof to establish a lack of probable cause 'or that the search was otherwise
unreasonable.'" State v. Boone, 232 N.J. 417, 427 (2017) (quoting State v.
Watts, 223 N.J. 503, 513-14 (2015)). "Reviewing courts [should] 'accord
substantial deference to the discretionary determination resulting in the
issuance of the [search] warrant.'" Ibid. (second alteration in original)
(quoting Jones, 179 N.J. at 388). However, "[c]ourts [must] consider the
'totality of the circumstances' and should sustain the validity of a search only if
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the finding of probable cause relies on adequate facts." Ibid. (quoting Jones,
179 N.J. at 388-89).
Defendant's argument lacks sufficient merit to warrant extended
discussion. R. 2:11-3(e)(2). Considering the totality of the circumstances,
Boesch's affidavit contained adequate facts supported by the record that
demonstrated probable cause that evidence of a crime would be found at the
Van Winkle Avenue property.
Boesch averred that cell phone records showed that defendant's cell
phone was in the area of Vernieri's house and the commercial parking lot
behind it at 10:39 a.m. on September 14, 2012, which was close to the time
that Sinan Logan reported hearing a disturbance from Vernieri's home. In
statements given to the police, defendant claimed that he was asleep in his
apartment at that time. Defendant also admitted in his second statement to
police that he visited the Van Winkle property on the date of the murder.
Vernieri's daughter reported that Vernieri had a "strange encounter" with
defendant, who stopped by Vernieri's house unannounced on September 12,
2012, something he had never done before. She further reported that her
mother told her that defendant asked her for a tour of the house and asked her
about diamond jewelry. Shoe impressions of an Adidas athletic shoe were
found at the crime scene.
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The facts set forth in Boesch's affidavit established probable cause for
the issuance of the search warrant. The seizure of evidence during the
execution of the warrant did not violate defendant's constitutional rights.
IV.
Defendant further argues that the trial court erred in admitting the
statements made by Vernieri to a friend under the present sense impression
exception to the hearsay rule, N.J.R.E. 803(c)(1). DeMauro testified regarding
comments made to her by Vernieri on September 12, 2012, following
defendant's visit to Vernieri's home. Defendant contends that there is no
evidence that DeMauro spoke with Vernieri "'while or immediately after' the
event was taking place." He claims that DeMauro's testimony allowed the
State to argue in summation that his visit to Vernieri's home was perceived by
her as "strange," and led to the State's assertion that something bad was going
to happen on September 12, 2012, but "the plan had to change when [Vernieri]
opened the door on the phone."
The State argues that the trial court properly admitted DeMauro's
testimony as a present sense impression because she spoke with Vernieri
immediately after defendant left Vernieri's home. The State also contends that
DeMauro's testimony that Vernieri said she was surprised by defendant's visit
was admissible under the state of mind exception to the hearsay rule, N.J.R.E.
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803(c)(3). The State further maintains that the testimony was not clearly
capable of producing an unjust result because it was "largely cumulative" of
testimony given by Murphy and defendant's father, and the statements given to
police by defendant. It claims that there was ample evidence in the record to
establish that Vernieri was surprised by defendant's visit and, therefore, the
prosecutor's comments in summation about the strangeness of the visit were
appropriate.
"We review evidentiary rulings under an abuse of discretion standard."
State v. Jackson, 243 N.J. 52, 64 (2020) (citing State v. Nantambu, 221 N.J.
390, 402 (2015)). "Under that deferential standard, we review a trial court's
evidentiary ruling only for a 'clear error of judgment.'" State v. Medina, 242
N.J. 397, 412 (2020) (quoting State v. Scott, 229 N.J. 469, 479 (2017)). When
inadmissible evidence is heard by the jury, "an appellate court should not order
a new trial unless the error was 'clearly capable of producing an unjust result.'"
State v. Yough, 208 N.J. 385, 397-98 (2011) (quoting R. 2:10-2). As we are
remanding for retrial, we provide the following guidance to the trial court.
The present sense impression exception to the hearsay rule applies to
statements "describing or explaining an event or condition, made while or
immediately after the declarant perceived it and without opportunity to
deliberate or fabricate." N.J.R.E. 803(c)(1). There is no dispute that Vernieri
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spoke to DeMauro after defendant's visit on September 12, 2012.
Accordingly, the applicability of the exception turns on whether Vernieri's
comments to DeMauro were made "immediately after" the visit.
In State ex rel. J.A., 195 N.J. 324, 336-40 (2008), the Court considered
the meaning of the phrase "immediately after" under the present sense
impression exception. The Court determined there was a distinction between
delays measured in seconds as opposed to those measured in minutes. Id. at
339. The Court held that a witness statement taken by police ten minutes after
a robbery occurred was not "immediately after" and the trial court abused its
discretion by admitting the statement under the present sense impression
exception. Id. at 340. Similarly, in Gonzales v. Hugelmeyer, 441 N.J. Super.
451, 458 (App. Div. 2015), we held that a statement by an eyewitness given to
police who "arrived at least 'several minutes'" after an accident occurred was
not admissible under the present sense impression exception.
Murphy testified that he was on the phone with Vernieri at about 9:00
p.m. when defendant arrived at her home on September 12, 2012. In his
statements to police, defendant said he arrived at Vernieri's home at around
7:20 p.m. and stayed for approximately one hour. DeMauro testified that she
spoke to Vernieri at around 9:30 or 10:00 p.m. that night. Despite the
conflicting evidence of the time defendant arrived and left, the trial court
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found "defendant rang her doorbell at approximately 8:30 p.m." and the
statements "were made at 10 p.m. on September 12, 2012, immediately after
the defendant left her home." The record does not establish that the statements
to DeMauro were made within seconds rather than minutes of perceiving the
event "and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(1).
Therefore, the statements are not admissible as present sense impressions.
We also consider whether Vernieri's statements to DeMauro are
admissible under the state of mind hearsay exception, which provides an
exception for "[a] statement made in good faith of the declarant's then-existing
state of mind, emotion, sensation or physical condition (such as intent, plan,
motive, design, mental feeling, pain or bodily health), but not including a
statement of memory or belief to prove the fact remembered or believed . . . ."
N.J.R.E. 803(c)(3).
"Simply stated, the 'state of mind' exception to the hearsay rule allows
admission of extrajudicial statements to show the state of mind of the declarant
when it is at issue in a case." State v. McGuire, 419 N.J. Super. 88, 136 (App.
Div. 2011) (quoting State v. Benedetto, 120 N.J. 250, 255–56 (1990)). "Such
state-of-mind testimony may properly be used only for evaluating the victim's
actions or the likelihood of him or her acting in a certain way." State v.
Scharf, 225 N.J. 547, 581 (2016) (emphasis in original). "[T]he evidence may
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not be used as evidence of the defendant's actions or intent." Ibid. Moreover,
a limiting instruction should be provided to the jury regarding "the permissib le
and prohibited purposes of the evidence." Ibid.
The statement that Vernieri was surprised by defendant's visit was not
offered to evaluate any actions of Vernieri or the likelihood of her acting in a
certain way. Rather, it was used to show that defendant's behavior was
unusual or odd. Therefore, the statement was not admissible under the state of
mind hearsay exception.
While this evidentiary error was not clearly capable of producing an
unjust result, Vernieri's statements to DeMauro shall not be admitted into
evidence during the retrial.
V.
Finally, we address defendant's argument that the trial court erred by
instructing the jury that it could consider his conduct at the time of his arrest
as evidence of his consciousness of guilt. He contends that his conduct was
not "relevant to any material issue disputed at trial" and points out that he was
acquitted of resisting arrest. He maintains that he did not attempt to flee and
that his conduct was entirely "consistent with utter panic."
Relying on State v. Williams, 190 N.J. 114, 125 (2007), as well as cases
from foreign jurisdictions, the State argues that evidence of resisting arrest is
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admissible "to prove defendant's consciousness of guilt of the underlying
crime." It claims that count fourteen of the indictment, which charged
defendant with third degree resisting arrest, was dismissed only because
testimony failed to establish the element of physical force. The State notes
that the trial court found that the testimony could constitute disord erly-persons
resisting arrest, N.J.S.A. 2C:29-2(a)(1). The State also contends that the
court's limiting instruction properly protected defendant's rights.
Both McMorrow and Boesch testified, without objection, that defendant
ignored numerous commands to turn off and exit his vehicle, that he refused to
submit to handcuffs after being forcibly removed from the vehicle, and that he
was taken to the ground by officers and restrained. Defendant has not argued
on appeal that McMorrow's or Boesch's testimony was improperly admitted.
We deem that issue waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648,
657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived.").
We therefore focus on the jury instruction.
In summation, defense counsel disputed that defendant's conduct at the
time of his arrest showed consciousness of guilt. Counsel pointed out that
defendant voluntarily stopped his vehicle and placed the car in park. Counsel
suggested that defendant's failure to immediately follow resulted from his need
to process what was happening. Counsel's arguments provided the jurors with
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an alternative explanation for defendant's conduct, which the jurors, in
accordance with the court's instruction, were free to either accept or reject.
Defendant objected to the jury instruction regarding consciousness of
guilt. "In reviewing instructions to the jury, a court must not isolate the
language challenged but must examine the remark in the context of the entire
charge." State v. DiFrisco, 137 N.J. 434, 491 (1994). The effect of the
challenged "charge must be evaluated in light of the totality of the
circumstances." Ibid.
The instruction properly informed jurors of the "permitted and
prohibited purposes of the evidence." State v. Cofield, 127 N.J. 328, 341
(1992) (quoting State v. Stevens, 115 N.J. 289, 304 (1989)). Jurors were
instructed that they could use the evidence that defendant ignored police
commands to exit his vehicle and submit to being handcuffed only for the
purpose of deciding whether the evidence demonstrated consciousness of guilt.
Jurors were also told they could decide the evidence did not demonstrate
defendant's consciousness of guilt, and in that case, they must disregard the
evidence. The court properly instructed the jurors regarding the permitted use
of this evidence that was admitted without objection.
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Reversed and remanded for retrial. We do not retain jurisdiction.
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