Derr v. State

ADKINS, J.

concurring.

Derr argues that the circuit court’s “denial of [his] right of cross-examination was compounded by the improper denial of discovery.” He contends that the trial court, in allowing the State to characterize the rarity of a DNA match but not allowing Derr discovery concerning the number of coincidental matches in the CODIS database, was error. Derr claims injury in that “discovery of the number of coincidental matches in the FBI’s CODIS database ..., in all likelihood, would have placed the limitations and shortcomings of the RMP1 in concrete terms for the jury to understand and evaluate.”

In addition to the Brady arguments addressed by the Majority, he bases this claim upon Md. Rule 4-263, and the Fifth, Sixth, and Fourteenth amendments of the Federal Constitution, as well as, Articles 21 and 24 of the Maryland Declaration of Rights. Although the Majority’s Brady ruling may be in accord with traditional Brady analysis, the Majority fails to appreciate the fact that a Brady violation is not the sole method by which a criminal defendant’s right to due process may be violated. Due process is broader than just the prosecutorial suppression of evidence, it encompasses the entirety of a criminal defendant’s right to a fair trial. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 *136(1955) (“A fair trial in a fair tribunal is a basic requirement of due process.”). By basing its constitutional due process analysis solely on Brady, I am concerned that the Majority’s opinion may be construed as an endorsement of the notion that refusal of discovery of RMP’s in the CODIS database is always sacrosanct. With increased use by the state of partial matches (less than 13 locii) to prove a suspect’s connection to the crime, I have serious concern that denying a defendant discovery about coincidental matches in the CODIS database may so undermine his defense that a denial of due process may sometimes result.

In the typical DNA-based case, the State presents its expert witness to state the rarity of any given DNA profile through use of the CODIS database. Yet, because that database is off-limits to defendants and the public, absent discovery, the defense has no method to test the validity of these statistics. There is no DNA database other than CODIS that can be used by defense counsel to generate its own tests regarding the rarity of a DNA match. In other words, the State has exclusive rights to use the only existing database that could provide a testing of the RMP that may be crucial to a defense.

Derr’s request for discovery about the frequency of random matches in the CODIS database raises these concerns. I concur, rather than dissent, however, because the State limited its proof to instances of full 13 locii matches as evidence that Derr’s DNA was found on the rape victim. Expert witness Jennifer Luttman testified that there was a one in 240 quadrillion chance of finding another person whose DNA matched at 13 locii. I am persuaded that, when all 13 locii match, there is virtually no likelihood that a random match could be found, and so discovery of random matches in the CODIS database will not prove fruitful for the defense. See Young v. United States, 63 A.3d 1033, 1051 (D.C.2013) (“[Tjhere is no ‘real basis’ to question the correctness of the government’s statistics or expect data on pairwise matches in NDIS to undermine the FBI’s calculation of a RMP based on a thirteen-locii match.”)

This is exactly what the trial court decided:

*137I ... deny the defendant’s motion in limine to exclude the State’s expert from testifying as to the source attribution and rarity of forensic data profile. And also deny the motion to compel the State to produce the statistics on matching and near matching profiles in the Codus [sic] DNA database. I agree with the State that there is no reasonable likelihood that the information requested would produce any helpful or exculpatory information. The science certainly does not, as this time, support their contention. There has never been a 13 locus coincidental match between two people other than identical twins. Ant’s Apx at 248.

I would affirm the trial court on this basis.

Yet, I write separately to emphasize that we must remain vigilant, and as future cases unfold, refrain from being predisposed against defense efforts, in the proper case, to make the state disgorge information valuable to the defense about CO-DIS. Although it may be almost impossible for a full 13 locii match to produce a random identification of someone other than the person who committed the crime, the same cannot be said of partial matches. The value of DNA evidence rests exclusively on statistical conclusions and probabilities, which become less certain as the number of matching locii decreases. When fewer locii are matched, the probability of finding a random match of DNA that does not belong to the guilty person may become unacceptably large in the view of the trier of fact. In order to prove this, however, a defendant needs to have access to the necessary evidence to persuade the judge or jury.

Recognizing that the existence of a high probability of returning coincidental matches could compromise our criminal justice system, courts and scholars alike have begun to acknowledge the need for more scientific study into DNA testing to guarantee that the RMPs of certain locii matches is what the government claims them to be. The District of Columbia Court of Appeals, for example, although denying requested discovery about CODIS, recognized the importance of making sure that the theorized RMPs match reality:

*138Researchers have studied the match frequencies found in offender databases ... to determine whether they in fact imply that the foundations of the formula for calculating RMP’s need to be reconsidered.... The studies are not conclusive; questions remain. Reputable scientists and scholars have argued that it would be desirable as a matter of policy and scientific accuracy to investigate the frequency of matches in very large databases such as NDIS in order to determine whether the theorized amplification of slight deviations from allelic independence across multiple loci affects the accuracy of RMP calculations based on the product rule.

Young, 63 A.3d at 1055-56. Likewise, several scholars have made cogent arguments for the importance of more testing, explaining why the Federal government’s claims of the need for secrecy about CODIS are not persuasive. See Sarah M. Ruby, Checking the Math: Government Secrecy and DNA Databases, 6 I/S: J.L. & Pol’y for Info. Soc’y 257, 290-316 (2010); see also D. Kaye, Trawling DNA Databases For Partial Matches: What is the FBI Afraid Of?, 19 Cornell J.L. & Pub. Pol’y 145 (2009). The Ruby article, for example, concludes:

Ideally, statistical tests would show that current estimates as to the rarity of DNA profiles are accurate. However, if DNA profiles are not as rare as current statistics portray them to be, untold numbers of convictions could be compromised. This is not a reason to allow potentially faulty science to remain unexamined, it is a question that demands an answer. Yet, none outside government has access to the tools necessary to provide one. If law enforcement agencies continue to resist scrutiny of offender DNA profiles, reasonable judges should take action through the imperfect venue of a criminal trial.

Ruby, at 316.

No doubt, some of the public policy changes advocated by these and other commentators, conflict with existing federal statutes, and thus, compelling disclosure of the federal CODIS *139database will be beyond the scope of our jurisdiction. Yet, they raise important questions highlighting the absence of proof regarding the accuracy of current RMP calculations, especially concerning partial DNA matches. It may be the case, that when the State attempts to connect a defendant to a crime through the use of a partial DNA match, the probability of returning a coincidental match in the CODIS database becomes unacceptably high to the point at which denial of this information will violate the defendant’s right to due process. In such circumstances, we at least have the option of excluding the DNA evidence, absent proper discovery.

I concur in the majority opinion, but add a caveat: we should be alert for the case when the government’s need for secrecy is outweighed by the defendant’s right to a fair trial that is guaranteed by the Fifth, Sixth, and Fourteenth Amendments, as well as, Articles 21 and 24 of the Maryland Declaration of Rights.

Judge HARRELL authorizes me to state that he agrees with the views set forth herein.

. RMP is used to mean “random match probability."