Attorneys from several counties have received notice through discovery that their cases that their cases were potentially affected by a DNA testing issue at National Medical Services (NMS) Labs in Pennsylvania. DA’s offices in various jurisdictions have sent samples to NMS Labs for DNA testing in recent years.
The issue that has been identified is the presence of an amplification inhibitor from the use of a particular DNA purification kit. The amplification inhibitor may result in failure to develop DNA profiles from samples that would otherwise be expected to yield a full or partial interpretable DNA profile. The amplification inhibitor can also result in the failure to reveal additional low level contributor(s) in a mixed sample.
It appears that NMS Labs has provided notice of the issue in impacted cases and that the notice is being provided to defense attorneys by district attorney offices, but attorneys who have pending or resolved cases where NMS Labs performed DNA analysis from approximately 2016-2018 should review their cases. The issue could be particularly significant in cases where there was a potential third-party guilt defense, but no interpretable DNA profile was developed during testing.
If an attorney receives notice that their case was impacted or had a case worked by NMS Labs during the relevant time period, the attorney should consult with a DNA expert to discuss the possible impact on the evidence in their case. NMS Labs has offered to retest affected evidence, free of charge. Attorneys should first discuss retesting with an independent DNA expert. If sufficient sample remains on the original evidence, that evidence could be tested. However, attorneys should be aware of the potential to entirely consume the evidence and should consider filing a motion to preserve and request that the parties be required to reach an agreement on how testing should proceed. If an insufficient amount of the original sample remains, it is possible to perform a cleanup step and retest the DNA extract.
Attorneys can contact IDS Forensic Resource Counsel Sarah Olson for assistance in finding a DNA expert or in selecting a lab for independent DNA testing. Additional information about this issue and an investigation by the Texas Forensic Science Commission is available here.