State v. Boles

EHRLICH, Judge,

concurring in part, dissenting in part.

I concur in the majority’s resolution of the admissibility of the statements of Timothy Roosevelt Boles (“defendant”) to Detective Townsend. I respectfully dissent from the analysis of the admission of the expert testimony regarding the deoxyribonucleic acid (“DNA”) match. I would affirm the trial court’s decision.

The Arizona Supreme Court in its opinion in State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993), cert. denied, — U.S.-, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994), resolved two issues at the nucleus of DNA cases: (1) that the DNA testing and matching procedure used by the Arizona Department of Public Safety laboratory in this case, Restriction Fragment Length Polymorphism (“RFLP”), is generally accepted in the scientific community and, therefore, provides a legally-sufficient basis for expert-opinion, testimony in DNA cases; and (2) that the various methods used to determine the random match probability, that is the statistical possibility that two identical samples of DNA are in fact identical and not derived from two different organisms, are not generally accepted by the scientific community. Undecided by the court in Bible, but presented here, is whether a negative answer to the statistical question renders the DNA evidence meaningless except to the extent that it can be interpreted to exclude or not exclude someone as the source of the DNA in a given sample. The majority concludes that it does. I believe that the statistical evidence is collateral to, rather than foundational for, otherwise admissible opinion testimony of DNA experts.

It is no longer disputed that the science and technology of DNA testing satisfies the test of Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Bible, 175 Ariz. at 590, 858 P.2d at 1193. In this case, the state’s DNA experts testified regarding their qualifica: tions and the methods they employed in testing and analyzing the DNA samples. The trial court found that this evidence provided sufficient foundation for their opinion testimony interpreting the DNA results. Ultimately, one expert testified that, based on a comparison of DNA -samples, the defendant was the source of the DNA extracted from semen found on clothing at the crime scene. The experts’ testimony included the reasons for their opinions, many of which are recited in the majority opinion. The opinions did not rest on a calculation of the random match probability.

The majority concludes that the trial court fundamentally erred in independently admitting the opinion testimony on the basis of foundation evidence. In my opinion, such a conclusion disregards the compelling body of case law wherein experts have opined, based on a comparison of samples from known sources, that a defendant was the source of evidence found at a crime scene (such as fingerprints, bite marks, footprints, tire tracks), without ever addressing the possibility of a random match. See State v. Bogan, 183 Ariz. 506, 513, 905 P.2d 515, 522 (App.1995), and cases cited therein.

The majority confounds the admissibility of the disputed match testimony by needlessly coupling it with prohibited statistical evidence; calculating a statistical probability of a random match is not a component of DNA testing. DNA samples can be compared with validity based on principles of biology, applied DNA technology and laboratory experience by those knowing nothing of population genetics. It is erroneous to say, as does *578the majority, that the experts “implicitly relied on the probability statistics” in formulating their opinions simply because they demonstrated familiarity with the theories of random match probability. The state proffered the statistical evidence to bolster the opinion testimony of its DNA experts, emphasizing the remoteness of the possibility that its experts were mistaken as to the source of the DNA sample. Because the correct statistical method for calculating the random match probability was disputed by the parties and because the issue entailed complex concepts of population genetics and mathematics, the trial court ordered a Frye hearing. As a result of the hearing, and in prophetic and full accord with Bible, see 175 Ariz. at 585-86, 858 P.2d at 1188-89, the court found that the statistical method was not generally accepted in the scientific community and, thus, inadmissible. Accordingly, it permitted opinion testimony founded upon the DNA experts’ interpretation of the DNA test results but excluded testimony of the random match probability. This was consistent with the later decision in Bible in which the supreme court precluded admission of the statistical evidence but expressly left open the question whether “evidence of a match, accompanied by evidence that a match means that it is possible or probable that two samples came from the same source, could be admissible.” 175 Ariz. at 587, 858 P.2d at 1190 (emphasis added).

The majority argues that the trial court should have limited the state’s experts to testifying only that their tests could “not exclude” the defendant as the perpetrator of the crimes charged. In imposing this restriction, the majority would limit the experts to declaring that it is possible that the samples came from the same source. This approach unreasonably divests DNA evidence of its compelling nature, thereby denigrating advanced, sophisticated DNA methodology.

The majority’s approach also sets aside the Frye standard in excluding the experts’ match testimony. The intent of Frye is “to separate good science from junk science” and admit expert testimony if the “scientific principle used as a basis for expert testimony is generally accepted in the scientific community.” Bible, 175 Ariz. at 578, 858 P.2d at 1181. There is general acceptance of the scientific principles underlying the experts’ DNA testimony. That is all that is required. Frye does not call for general acceptance of an expert’s conclusions; to do so would mean that experts could never offer differing opinions.11 Obviously, the experts who testified that the defendant was the likely source of the DNA samples found on the victims claimed a scientific basis for their opinions. They understood and testified regarding DNA polymorphism and the technology employed in comparing DNA samples; they also were experienced in applying the technology and in likening samples. That knowledge and experience formed the basis for their opinions that the samples “matched.” The DNA technology employed was “a demonstrable, objective procedure for reaching the opinion,” and qualified persons could' have duplicated the experiments or criticized the technology, methodology or underlying scientific principles on which the opinions rested.

I also dispute the majority’s characterization of the holding in Bogan. The Bogan panel did not hold that the DNA expert’s opinion testimony was admissible because the statistical possibility of a random match was extremely remote. Rather, it held that the match testimony was independently admissible because the science, technology and laboratory tests on which it was based are generally accepted in the scientific community. The trial court in that case held three days of pretrial hearings to resolve that question; nothing more was required under Frye or Bible. Thus, the majority is mistaken in observing that the panel in Bogan “made no attempt to determine whether the expert’s testimony satisfied Frye ” and “failed to give *579... any credence” to the inadmissibility of the statistical evidence.12

Despite the protestation to the contrary, the majority does treat DNA evidence differently from other forensic evidence. The fact is that any dispute among DNA experts does not center on whether the databases from which DNA statistics are derived are too new or too small; rather, they argue over the “random mating” assumption inherent in statistical extrapolations derived from DNA databases. Yet this same “random mating” assumption is inherent in the statistical calculations derived from blood-typing databases, which have been accepted in American courts since the 1930s. See e.g., In re Paternity of M.J.B., 144 Wis.2d 638, 425 N.W.2d 404, 408 (1988); People ex rel. Mendez v. Villa, 260 Ill.App.3d 866, 198 Ill.Dec. 263, 264, 632 N.E.2d 322, 323 (1994); Commonwealth v. Khamphouseane, 434 Pa.Super. 93, 642 A.2d 490, 492 (1994). However, because blood typing does not provide sufficiently specific information to support an opinion that blood found at a crime scene came from a defendant (or blood found on the defendant came from the victim), the evidence is not as damaging to a defendant as DNA evidence.

The weaknesses in the majority’s treatment of the statistical issue as foundational to the substantive DNA issue become apparent when applied in other contexts. Assume, for example, that an eyewitness to a bank robbery in Phoenix had an unobstructed, close-up view of the crime. At trial, the witness is prepared to testify that the defendant and the robber are one and the same person. Of course, there is a possibility that he is confusing the defendant with a robber who closely resembles the defendant. Must the witness be restricted to testifying that he “cannot exclude” the defendant as the person who robbed the bank because statisticians cannot agree on the odds that the witness might be mistaken? Assume further that the perpetrator and the defendant are both six feet tall, mustached, blue-eyed, with sears over their left eye, and a limp in their walk (five physical characteristics analogous to the five matching probes used in the RFLP testing), and that the only dispute among the statisticians is whether there might be a lesser or greater number of tall, mustached, blue-eyed, scarred men limping around Phoenix than in the general population from which the statistics were derived. Clearly, the lack of general acceptance among the statisticians on the method of calculating the possibility of mistaken identity would not render the witness identification meaningless or less subject to cross-examination regarding the basis for his opinion, such as the quality of his eyesight or lighting conditions at the bank.

The majority also express the concern that some of the DNA opinion testimony had the practical effect of the prohibited statistical evidence and was, • therefore, a “subtle evasion” of the evidentiary proscriptions set forth in Bible. Adopting the reasoning in State v. Hummert, 183 Ariz. 484, 905 P.2d 493 (App.1994), the majority concludes that the DNA testimony overstated the probability statistics by failing to acknowledge the possibility of error and, instead, declaring that the putative source of the DNA also was the actual source.

I disagree on three grounds. First, opinion testimony is just that: the expert’s expression of opinion. It is subject to attack on *580cross-examination and rebuttal by other experts. It need not be accompanied by a disclaimer or statistical evidence of the possibility of error. The majority effectively treats DNA-opinion evidence as stipulated fact, perhaps because it is so frighteningly compelling, and appears to argue that, in the absence of competent statistical evidence on the possibility of error, substantive opinion evidence is meaningless unless it can be proven true with absolute certainty.

Second, the majority intimates that juries will accept expert opinion without reservation. The implication ignores the defendant’s ability, through the use of cross-examination and expert rebuttal testimony, to refute the state’s expert(s). Moreover, even assuming that the DNA testimony was tantamount to a statement of the random match probability, the majority overlooks the fact that DNA random match probability “says nothing about guilt or innocence.” Bible, 175 Ariz. at 582 n. 18, 858 P.2d at 1185 n. 18 (quoting Dr. Lisa Forman of Cellmark Laboratories).

Finally, the majority postulates that the statement that “the defendant is the source of the crime-scene DNA” is more damaging than the statement that “the odds that the defendant is not the source of the crime-scene DNA are a million-to-one.” I simply disagree with that presumption.

The purpose of DNA testing is to determine, first, whether someone can be excluded as the source of DNA and, if not, to determine whether that person can be identified as the source. The test results in this case indicated with reasonable certainty that the defendant was the source of the DNA extracted from the semen found at the crime scene and supported the DNA experts’ testimony to that effect. The only “probability” testimony proscribed by Bible is testimony of the statistical random match probability. Because that testimony was excluded by the trial court, I find no error in the admission of the DNA evidence.

I would affirm the convictions and sentences.

. While the size of the probability statistic is irrelevant to the analysis, the fact that even defense experts concede astronomically low odds of a random match tends to confirm the reliability of the experts’ match testimony and supports the conclusion that the majority is throwing the "proverbial baby out with the bathwater,” Brim v. State, 654 So.2d 184, 187 (Fla.Ct.App.2d Dist.1995).

. In criticizing Bogan, the majority states that the Bogan panel failed to recognize a distinction between DNA cases and other "match” identification cases, the distinction being that "no one seriously challenges the reliability of the scientific principles behind 'matches’ of shoe prints, bite marks,” etcetera, while the reliability of the random match probability statistics is in dispute. The comparison is false. The court can compare the relative reliability of two technologies (how an expert derives and compares fingerprint samples versus how an expert derives and compares DNA autoradiograms) or the court can compare the reliability of the random match probability in either case (measuring the statistical possibility of two persons having indistinguishable fingerprints versus measuring the statistical possibility of two people having indistinguishable autoradiograms) but, here, the majority is comparing the reliability of the underlying technology in the bite mark/fingerprint/tire track cases to the reliability of random match probabilities in the DNA cases. This is a classic "apples and oranges" comparison because the random match probability issue is never even raised in the bite mark/fingerprint/tire track cases, a fundamental point in Bogan.