concurring specially.
I agree Springfield's conviction can be affirmed, but I have a concern with respect to the holding of the majority that we should depart from the rule articulated in Rivera v. State, 840 P.2d 933, 942 (Wyo.1992):
Our conclusion is that, at some level, the statistical probability could be perceived as an opinion by the expert that the accused is guilty. At least, it would be possible for the jury to draw that inference from statistical probabilities associated with the DNA evidence alone. We, therefore, believe the better practice in Wyoming should be to not refer to the statistical probability of duplication when introducing DNA test results.
The majority chooses to overrule Rivera in favor of the reasoning of State v. Brown, 470 N.W.2d 30 (Iowa 1991), and to hold that the evidence of statistical probabilities must be presented to the jury.
I am not persuaded by the conclusion of the Iowa Supreme Court that the result of the DNA testing without the statistical probability evidence becomes a matter of speculation. The same comment could be made about any other circumstantial evidence. I contend the DNA match is simply circumstantial evidence that can justify an inference by the jury on the issue of identity.
*454I still feel the concern, expressed in Rivera, that the introduction of such evidence in most cases amounts to an opinion on guilt, which this court eschewed in Stephens v. State, 774 P.2d 60 (Wyo.1989). Qualitatively, I find very little difference, if any, between testimony that, in the opinion of the expert, the defendant committed the crime charged and testimony that, in the opinion of even the defense expert, only one other person in seventeen million could have committed the crime charged. In my view, both statements constitute opinions as to guilt. The facile claim in Brown, following Martinez v. State, 549 So.2d 694 (Fla.Dist.Ct.App. 5 Dist.1989), that such evidence does not remove the issue of identity from the jury because it is free to disregard or disbelieve expert testimony is not persuasive. In instances such as this, there is no rational justification for the jury to disregard such testimony, and the pragmatic fact is that juries will not do so. In nearly all instances, this evidence is conclusive on the issue of identity.
The more profound question then is the inquiry with respect to what has happened to the right of the accused under both the federal and state constitutions to a trial by jury. I have no equivocation in stating that, when the evidence of statistical probabilities is received, the trial is by the DNA scientist, and the trial to the jury, in the light of overwhelming evidence of statistical probability, is a legal facade. As the science of DNA testing and matching becomes more advanced, the prediction is that the statistical probabilities of another match will become smaller and smaller. In that context, the evidence of statistical probabilities must become even more overwhelming. The accused with a DNA match, when the evidence of statistical probability is introduced, will be left with no practical choice other than to plead guilty in exchange for some sentencing consideration. In most such instances,, the bargaining power of the accused must be perceived as negligible.
My concern is that we may be in the process of creating a jurisprudential Frankenstein. In an effort to invest DNA evidence with life and breath, we may find, in this limited context, we have structured a rule that takes away the life and breath of the right to a jury trial. If the judiciary perceives that it cannot go so far, the likely reaction is to slay the monster, not in parts but totally, leading to the inadmissibility of even the fact of a DNA match. Yet, this scientific technique has far too much value to the fact finding process to be legally denied.
For me, the middle ground is to maintain the admissibility of the opinion as to match but, in a criminal case, the prosecution should not introduce the evidence of statistical probabilities. If the accused chooses to delve into this area, I would justify that as a matter of trial strategy, but the accused would have to accept any adverse consequences.
I have styled this as a concurring opinion for two reasons. Springfield was tried pri- or to the filing of the opinion in Rivera, and the trial judge did not have the benefit of that holding when making his ruling. Since, in this instance, there is a marked difference between the Black database (one other match in one hundred fifty million), the Caucasian database (one in two hundred fifty million), the Hispanic database (one in twenty-five million), and the Indian database (one in two hundred fifty thousand), Springfield could present to the jury an argument that reasonable doubt existed as to the issue of identity since, if the population of Wyoming were composed of entirely Native Americans, there could have been one other person who might also be matched by the DNA profiling. Obviously, the argument as to reasonable doubt was not successful, but I am willing to agree there was no prejudicial error given the much larger odds using the Indian database.
I would affirm Springfield’s conviction, but I would reaffirm the rule from Rivera.