Attorneys handling cases involving DNA evidence should be aware of a recent NC Court of Appeals decision, State v. Phillips, COA19-372. In Dec. 2019, the Court of Appeals found that the admission of testimony about an inconclusive DNA mixture was expert testimony, was not based on sufficient facts or data nor is the product of reliable scientific principles and methods, and that the trial court erred in admitting the testimony which prejudiced the defendant. Mr. Phillips, who was represented by Drew Nelson on appeal, was granted a new trial.
In order to understand the ruling, let’s look at what the evidence was. This statutory rape case involved DNA evidence from a swab that contained a DNA mixture. Dr. Melinda Wilson, a forensic biologist with the North Carolina State Crime Lab testified at trial. She testified that the swab contained a mixture of three contributors – the defendant, the person from whom the swab was collected, and a minor contributor whose profile was “inconclusive due to the complexity and/or insufficient quality of recovered DNA.” Dr. Wilson testified that when a component of a DNA sample is inconclusive, that means “you cannot include someone as a possible source of DNA and you also cannot exclude them as a possible source of DNA.” The state anticipated that the defense may argue that the minor contributor could belong to J.E., and that the presence of her DNA could offer an innocent explanation for Mr. Phillips’ DNA being present on the sample (secondary transfer). The state asked Dr. Wilson to opine on whether any alleles in the minor profile matched J.E.
Is it expert testimony?
The state argued on appeal that Dr. Wilson’s testimony was not improper scientific expert opinion testimony and was beyond the scope of Rule 702(a) because she was not asked to give an opinion, but only state what markers she could “see” in the minor profile. The Court of Appeals did not find this argument persuasive and found that she was reporting more than what she had seen through her senses and was providing an assessment and analysis based on her specialized knowledge.
Does the testimony satisfy Rule 702?
Dr. Wilson testified that the minor contributor’s profile was “inconclusive due to the complexity and/or insufficient quality of the recovered DNA.” She explained that an “inconclusive” profile is not sufficient quality or quantity for comparison purposes. She testified that providing the requested interpretation would break with the State Lab’s policy and established scientific procedures. The Court of Appeals found that asking Dr. Wilson to give expert opinion testimony based on insufficient facts or data violated the first prong of Rule 702(a) and that testimony that was not the product of reliable principles and methods violated the second prong of Rule 702(a).
This opinion merits a full read for anyone who is dealing with a case involving an inconclusive DNA mixture, but here are a few points that I wanted to highlight:
- Read the lab’s procedures. The NC State Crime Lab has their procedures posted here. By reading the lab’s procedure, for example, the NCSCL’s Procedure for Casework Report Writing, counsel can better understand the limits of the analyst’s conclusion.
- Schedule a pre-trial conference. In this case the expert was forthcoming about how the request to render an opinion about an inconclusive profile violated her lab’s policies and established scientific principles. It is advisable that counsel schedule a pre-trial conference with the DNA analyst to understand the full scope of their opinion and what the analyst would say if asked to render an opinion outside the scope of their written report.
- File a 702 motion to exclude/limit the testimony. Contact Sarah.R.Olson@nccourts.org if you need a sample motion.
- Object. Counsel should object to the expert’s testimony at trial and state the grounds for their objection, specifically mentioning Rule 702 in order to preserve the issue for appeal. Counsel may also consider objecting based on Evidence Rules 401, 403, and due process grounds.
- Prepare voir dire questions. Counsel should be prepared with questions to help the analyst explain why offering the objected-to testimony would not be based on sufficient facts or data and would not be the product of reliable principles and methods.
- What’s good for the goose is good for the gander. I more typically see the state asking a DNA analyst to offer an opinion on an inconclusive profile, but defense counsel should be aware that this opinion also prohibits them from asking a DNA analyst to render such an opinion. In cases where an inconclusive profile or mixture is present in a relevant sample, defense counsel should have an independent DNA expert review to ensure that they agree with that determination.