textfiles/law/fbijun09.law

June 1990                                                         
                                                                  
               DNA TESTING AND THE FRYE STANDARD                          

                              By

                     Robert A. Fiatal, J.D.
                         Special Agent
                 Legal Instructor, FBI Academy    
               
                                                   
     The ability to identify a certain individual as the 
perpetrator of a specific criminal act through DNA analysis and 
comparison is undoubtedly a revolutionary investigative procedure 
for law enforcement.  This technique, which isolates and measures 
the variations in the DNA structure of unknown blood or semen and 
compares those variations with the variations in the criminal 
suspect's DNA, (1) possesses particular value in the investigation 
and prosecution of violent crimes, such as rape, homicide and 
aggravated assault.  The results of DNA examinations can 
effectively rebut alibi defenses, corroborate the accuracy of 
what otherwise might be questionable eyewitness identification, 
and correspondingly produce more guilty pleas. (2)  Conversely, it 
can exonerate the innocent. (3)  For this procedure to be truly 
effective in the criminal justice system, however, expert 
opinions and conclusions based upon DNA identification must be 
admissible in criminal prosecutions.                              

     Comparisons and conclusions based upon this scientific 
technique are strong, if not overwhelming, proof of guilt, and
prosecutors, investigators, and forensic scientists should
anticipate strong defense objections to the admission of such
testimony at trial.  Therefore, all examined specimens must be
obtained in compliance with constitutional standards and
maintained in a manner that precludes contamination and assures
a strict chain of custody for later authentication and
identification.  Moreover, since conclusions from this
sophisticated testing process are based upon what some courts
have viewed as the relatively novel application of scientific
techniques and procedures to forensic science, the law
enforcement community should be prepared to satisfy specific
admissibility requirements not normally associated with the
introduction of other types of expert testimony.

     The purpose of this article is to acquaint the police 
officer, prosecutor, and forensic scientist with these 
anticipated admissibility requirements in order to assist them in 
their law enforcement and prosecutorial functions.  One should  
remember, however, that the ability to meet these requirements is 
almost entirely dependent upon the ability of expert witnesses to 
convince the courts, through their testimony, that these 
conditions have been fulfilled.  It is also incumbent upon these 
experts to convince the courts that the procedures used in a 
particular case were conducted in a reliable manner.       

ADMISSIBILITY OF NOVEL SCIENTIFIC EVIDENCE
                        
     When assessing the admissibility of novel scientific 
evidence, some courts limit their review to the application of 
the traditional evidentiary test of relevancy.  Under this test, 
scientific evidence is admissible if the testifying expert is 
duly qualified, the expert's opinion is relevant and will assist 
the fact finder, and the testimony is not so prejudicial as to 
outweigh its probative value. (4)  For example, in United States v. 
Baller, (5) the U.S. Court of Appeals for the Fourth Circuit 
applied this test of admissibility to testimony relating to the 
then new technique of voiceprint or spectrographic 
identification.  Because that expert testimony was found by the 
court to be relevant and not overly prejudicial, it was admitted.  

     Most jurisdictions, however, apply the more stringent Frye 
standard when judging the admissibility of evidence derived from 
a relatively new scientific procedure.  Based on the decision in 
Frye v. United States, (6) these courts also require that the 
theory underlying the technique, as well as the technique 
itself, be generally accepted or commonly recognized by 
scientists in the relevant scientific community. (7)  Most courts 
that use the relevancy standard also deem the general acceptance 
or common recognition of a technique to be important factors in 
determining if evidence is relevant. (8)  For example, the Supreme 
Court of Oregon determined that trial courts in that State should 
consider the following factors when assessing the relevancy of 
evidence based upon a new scientific approach:  1) The testifying 
expert's qualifications; 2) the existence of specialized 
literature about the procedure; 3) the use of the procedure; 4) 
its potential for error; and 5) its general acceptance in the 
relevant scientific community. (9)                                   

     Accordingly, prosecutors, forensic scientists, and law 
enforcement officers in all jurisdictions should be prepared to 
satisfy the Frye prescription when introducing evidence 
concerning the results of DNA examinations, even though their 
particular jurisdictions may not specifically adopt the Frye 
standard.                                                       

THE FRYE STANDARD                                                 

     In Frye, the U.S. Court of Appeals for the District of 
Columbia Circuit reviewed the admissibility of evidence based 
upon a relatively primitive polygraph technique and ruled as 
follows:                                                          

     ``Just when a scientific principle or discovery crosses 
     the line between experimental and demonstrable stages 
     is difficult to define.  Somewhere in this twilight zone 
     the evidential force of the principle must be recognized,
     and while the court will go a long way in admitting 
     expert testimony deduced from a well-recognized 
     scientific principle or discovery, the thing from 
     which the deduction is made must be sufficiently 
     established to have gained general acceptance in the 
     particular field in which it belongs.'' (10)
                                                   
Applying this standard, the court found that the questioned 
polygraph procedure had ``not yet gained such standing and 
scientific recognition among physiological and psychological 
authorities as would justify the courts in admitting testimony 
deduced from the discovery, development, and experiments thus far 
made.'' (11)  Therefore, in order for the government to introduce 
conclusions and opinions based upon a novel scientific procedure 
or technique, it must meet the Frye standard by establishing 
that the technique and the principles behind it are generally 
accepted in the relevant scientific community.                    

     To meet the Frye standard, the scientific theories and 
techniques must be generally accepted in the specific scientific 
community or field to which they belong.  In determining the 
appropriate or relevant scientific community, courts will 
generally not consider the entire spectrum of scientists.  They 
will instead only consider those scientists ``whose scientific 
background and training are sufficient to allow them to 
comprehend and understand the [involved scientific] process and 
form a judgment about it.'' (12)  The scientists will most often be 
limited to those who have had direct experience with the 
questioned scientific procedure, (13) or at least scientists who
``would be expected to be familiar with its use.'' (14)

      Once the appropriate scientific community is determined,
the court must also decide if the questioned procedure,
technique, and principles are generally accepted within that
community.  The Frye decision, as well as most of the decisions
of other Federal and State courts that have adopted the Frye
standard, give little if any guidance as to what is sufficient
general acceptance.  Those courts generally agree, however, 
that the Frye standard does not require unanimity of agreement 
in the applicable scientific field. (15)  Instead, the Frye 
standard requires an agreement by a ``substantial section of 
the scientific community'' (16) rather than one that is 
universal. (17)

      In this regard, prosecutors planning to use DNA
comparisons at trial should expect to encounter opposition to
the common recognition of DNA testing procedure through the
testimony of defense experts.  However, this divergent testimony
does not necessarily mean that the DNA technique is not
generally accepted.  Courts embracing the Frye standard
generally recognize that ``a degree of scientific divergence of
view is inevitable.'' (18)  It is the overall degree of
divergence in opinion in the relevant scientific community which
is significant, if not crucial, in determining if the involved
scientific process is generally acceptable. (19)  Prosecutors
attempting to meet both of these aspects of the Frye standard
must rely almost exclusively upon expert testimony to persuade
the court that the DNA testing procedure used is generally
accepted in the appropriate scientific circle.  They will also
have to rely upon these same witnesses to convince the court and
jury that the procedure was effectively and properly applied.

CONTEMPORARY COURT ACCEPTANCE OF DNA TESTING 

     Numerous courts, to include several at the appellate level,
have assessed the admissibility of expert conclusions based upon
the DNA identification process.  Courts to date have carefully
considered the expert testimony of scientists from the fields of
molecular biology and genetics and consistently agreed that the
principles underlying the DNA technique are universally
accepted. (20)  It is commonly recognized in all scientific
disciplines that cells with nuclei contain DNA and that the
structure of this DNA is different in all individuals except
identical twins.  Based on such expert testimony, these courts
have also, without exception, recognized that certain DNA
testing protocols are generally accepted as producing reliable
and accurate results that satisfy both the Frye and relevancy
standards of admissibility.  Moreover, the overwhelming majority
of these courts have determined that these procedures were
properly employed by the testing laboratory.

      For example, in Cobey v. State, (21) a Maryland court of
appeals upheld the admission of identification testimony based
upon the DNA analysis performed by Cellmark Diagnostics, a
private testing laboratory.  Using the procedure known as
restriction fragment length polymorphism, the laboratory
perceived a match between the defendant's blood and semen stains
found on the undergarments of the victim of a sexual assault.
This complex testing procedure basically includes the following
steps:  1) Extracting or recovering the DNA from the evidence;
2) fragmenting or splitting this DNA by restriction enzymes; 3)
marshaling these fragments through the scientific process of gel
electrophoresis; 4) transferring the fragments to a membrane by
blotting; 5) detecting special segments by introducing
radioactive probes; and 6) producing the autoradiograph, which
is a photographic image of these special segments used for
comparison with the DNA characteristics of the suspect's blood.

     The Cobey court relied upon the testimony of the
government's five expert witnesses, including impartial
scientists from the academic and research communities, to
conclude that the procedures used were generally accepted,
satisfied the Frye standard, and were reliably administered.
(22) The court further found that the laboratory used acceptable
criteria for formulating the minuscule chances of the match
occurring randomly. (23)

     Although not an appellate opinion, a New York trial court
similarly considered the propriety of the restriction fragment
length polymorphism procedure used by another private
laboratory, Lifecodes Corporation.  In People v. Wesley, (24)
the court, after an extensive hearing, was convinced by the
testimony of independent experts that every step of that
laboratory's protocol was generally recognized as accurate and
reliable.  The court was also satisfied that appropriate
controls were instituted to assure that the examined samples
were of sufficient quality for testing.  The laboratory had
conducted proficiency testing to ensure the skill of its
examiners and studies to confirm the lack of degradation effects
upon DNA characteristics due to age, heat, humidity and light.

     The Supreme Court of Virginia in Spencer v. Commonwealth
(25) and a Florida court of appeals (26) applying the relevancy
standard have also approved the admission of conclusions based
upon this DNA testing procedure.  These courts specifically
relied upon the acceptance and application of the DNA testing
procedure in diagnostic medicine for a lengthy period of time,
the existence of specialized literature supporting the
technique, and the unchallenged agreement among the testifying
scientists that incorrect procedure would render an inconclusive
result rather than a false match. (27)  These courts also
concurred that the private testing laboratory had used the
proper standards when determining the statistical likelihood of
a random match.

     Despite this overwhelming judicial acceptance of DNA
identification, two courts, agreeing that DNA typing by
restriction fragment length polymorphism is generally accepted
in the applicable scientific disciplines, have criticized the
manner in which the technique was employed.  In both instances,
the courts concluded that the testing procedure used was
questionable, rendering results inadmissible.

     In one decision, the Supreme Court of Minnesota
acknowledged the scientific acceptance of DNA testing, but
cautioned that the ``admissibility of [DNA] test results in a
particular case hinges on the laboratory's compliance with
appropriate standards and controls.'' (28)  The court concluded
that deficiencies in the private laboratory's protocol
disallowed admission of its test results.  The court
specifically criticized the private testing facility's failure
to conduct or refer to experimental studies supporting the
methodology used, and the lack of publication of those studies
and their results for peer review and analysis.  The court also
questioned the laboratory's unwillingness to provide to the
defendant specific information about its testing procedure and
methodology. (29)

     In a highly publicized decision, a New York trial court
also questioned the procedure used by another private laboratory
and challenged earlier findings that faulty procedure could not
render a test unreliable.  In People v. Castro, (30) blood
stains found on the defendant's watch were compared with the
defendant's blood and the homicide victim's blood through
restriction fragment length polymorphism.  The examiner
concluded that the blood on the watch was not the defendant's
but was instead the victim's.  After conducting an extensive
Frye hearing, the court recognized the complete acceptance of
DNA identification theory in the scientific world and the
general acceptance of DNA identification techniques which are
capable of producing reliable results.  It further acknowledged
that failure to perform this protocol in a scientifically
acceptable manner would normally only effect the weight of any
rendered conclusions and not their admissibility.

     However, the trial court determined that the laboratory was
remiss in certain portions of its testing, casting doubt about
the reliability of its conclusion that the blood on the watch
was that of the victim.  These errors included the laboratory's
failure to:  1) Follow specialized procedures for resolving
ambiguities that could be attributed to contaminated materials
or degraded samples; 2) use a generally accepted control in one
experiment; and 3) objectively quantify the readings of the
produced autoradiographs.  Accordingly, the court found it
necessary to exclude this conclusion.  However, because
scientific methods to determine that two DNA samples do not
match are less complex and were performed reliably, the court
admitted the conclusion that the defendant's blood was not the
blood on the watch.  The court's decision was not appealed
because the defendant subsequently pled guilty to the charged
homicide.  

CONCLUSION

     Properly employed DNA identification procedure has been
judicially acknowledged as meeting admissibility standards.  The
law enforcement community can confidently employ it in criminal
investigations and prosecutions.  However, strong defense
objections to its admission at trial should be anticipated.
Accordingly, whether courts apply the Frye test or the seemingly
less restrictive relevancy standard, complete cooperation
between the prosecutor, law enforcement officer, and government
expert is absolutely necessary to prepare for the admissibility
of DNA testing results.

     Prosecutors should become familiar with the DNA
identification process by reviewing available material
explaining the technique. (31)  Prosecutors should devote
sufficient time prior to discovery and trial to discuss the DNA
procedure used and proposed testimony with experts, including
the laboratory examiner and independent impartial scientists who
can corroborate the acceptance and reliability of the testing
protocol.  These experts should be prepared to apprise the
prosecutor of their expert qualifications, including their
academic and professional backgrounds.  The experts should also
be prepared to explain in comprehensible terms the DNA testing
process, its underlying principles, and its application to the
comparison made in that particular case.  They should similarly
refer to any tests they or others have conducted which validate
the DNA testing technique and the dissemination of the results
of those tests for peer review and comment.  They should also
inform the prosecutor of other scientists who have recognized
the validity of this technique and be prepared to testify about
those scientists' studies, writings and publications that
support the employed methodology.

     The prosecutor and scientist should also discuss the
anticipated testimony of any expected defense experts in order
to prepare for appropriate cross-examination and rebuttal.
Finally, they should acquaint themselves with those court
decisions that have criticized the way in which the DNA testing
procedure was performed and be prepared to explain to the trial
court the reliability of the testing procedure used.

     In the final analysis, a court's decision to admit the
results of DNA testing rests, in most jurisdictions, upon the
application of the Frye standard to the testimony of the expert
witnesses.  It is expected that after a reasonable period of
appropriate appellate review, all jurisdictions will recognize
the scientific acceptance of the DNA technique.  It will still
be necessary, however, to convince courts that proper protocol
was followed in a particular case.  Success ultimately depends
on the ability of the expert witnesses to explain to the court
the scientific validity of the DNA process used and the
particular conclusion or identification made.


FOOTNOTES

(1)  For a more thorough explanation of the DNA identification
process, see John W. Hicks, ``DNA Profiling:  A Tool for Law
Enforcement,'' FBI Law Enforcement Bulletin, vol.  57, No. 8,
August 1988, pp. 1-5.

(2)  See People v. Castro, 545 N.Y.S.2d 985 (N.Y. Sup. Ct.,
Bronx County, 1989).  

(3)  Of the DNA examinations performed by the FBI's DNA Analysis
Unit which have resulted in a conclusion, approximately 30
percent have excluded the suspect.  Telephone interview with SA
Lawrence A. Presley, DNA Analysis Unit, Laboratory Division,
FBI, March 2, 1990.

(4)  See United States v. Downing, 753 F.2d 1224 (3d Cir.  1985);
United States v. Brown, 557 F.2d 541 (6th Cir. 1977); United
States v. Baller, 519 F.2d 463 (4th Cir. 1975); State v.  Brown,
687 P.2d 751 (Or. Sup. Ct. 1984); State v. Hall, 297 N.W.2d 80
(Iowa Sup. Ct. 1980); State v. Williams, 388 A.2d 500 (Me. Sup.
Ct. 1978).  

(5)  Id.  

(6)  293 F. 1013 (D.C. Cir. 1923).  

(7)  United States v. Tranowski, 659 F.2d 750 (7th Cir. 1981);
United States v.  Kilgus, 571 F.2d 508 (9th Cir. 1978); United
States v. McDaniel, 538 F.2d 408 (D.C. Cir. 1976); United States
v. Alexander, 526 F.2d 161 (8th Cir. 1975); State v. Temple, 273
S.E. 2d 273 (N.C.  Sup. Ct. 1981); Reed v. State, 391 A.2d 364
(Md. Ct. App. 1978); People v. Tobey, 257 N.W.2d 537 (Mich. Sup.
Ct. 1977); Commonwealth v. Topa, 369 A.2d 1277 (Pa. Sup. Ct.
1977); People v. Kelly, 549 P.2d 1240 (Cal. Sup. Ct. 1976);
Commonwealth v.  Lykus, 327 N.E.2d 671 (Mass. Sup. Ct. 1975).
For a detailed discussion of the current status of the Frye
standard, see Gianelli, ``The Admissibility of Novel Scientific
Evidence: Frye v. United States, A Half-Century Later,'' 86
Colum. L. Rev.  1198 (1980).

(8)  United States v. Downing, supra note 4; United
States v.  Brown, supra note 4; State v. Brown, supra note 4.

(9)  State v. Brown, supra note 4.  

(10) Supra note 6, at 1014.  

(11) Id. at 1014.  

(12) Reed v. State, supra note 7, at 368.  

(13) See People v. Young, 391 N.W.2d 270 (Mich. Sup Ct. 1986).  

(14) People v. Williams, 331 P.2d 251, 254 (Cal. Ct. App.  1958).  

(15) See People v. Middleton, 429 N.E.2d 100 (N.Y. Ct. App.
1981).

(16) United States v. Williams, 443 F.Supp. 269, 273 (S.D.N.Y.
1977).

(17) See United States v. Zeigler, 350 F.Supp. 685 (D.D.C.
1972).  

(18) Commonwealth v. Lykus, supra note 7, at 678 n. 6.

(19) See Reed v. State, supra note 7; People v. Barbara, 255 N.W.2d
171 (Mich.  Sup. Ct. 1977).  

(20) Trial courts have admitted conclusions based upon DNA
analysis by examiners from the FBI on over 50 occasions.
Telephone interview with SA Lawrence A.  Presley, DNA Analysis
Unit, Laboratory Division, FBI, March 2, 1990.  

(21) 559 A.2d 391 (Md. Ct. Spec. App. 1989).  See also Yorke v.
State, 556 A.2d 230 (Md. Ct. App. 1989) and State v.  Woodall,
385 S.E.2d 253 (W. Va. Sup. Ct. 1989).  (Inconclusive DNA tests,
although generally accepted in the scientific community,
conducted after trial not grounds for new trial.)

(22) Maryland now statutorily allows the admission of
conclusions based upon DNA testing.  1989 Md. Laws Ch. 430.

(23) The court specifically found that the number of samples
used to devise the database for calculating these figures was
within generally accepted scientific criteria.  

(24) 533 N.Y.S.2d 643 (N.Y. Sup.  Ct., Albany County, 1988). See
also People v.  Shi Fu Hung, 546 N.Y.S.2d 920 (N.Y. Sup. Ct.,
Nassau County, 1989).

(25) 384 S.E.2d 775 (Va.  Sup. Ct. 1989); 384 S.E.2d 785
(Va.  Sup. Ct. 1989) (the defendant was convicted of two
incidents of murder in separate trials).  

(26) Andrews v.  State, 533 S.2d 841 (Fla. Ct.  App. 1988); see
also Martinez v.  State, 549 So.2d 94 (Fla. Ct.  App. 1989).

(27) See also Cobey v.  State, supra note 21 and People v.
Wesley, supra note 24.  But see People v. Castro, supra note 2.

(28) State v. Schwartz, 447 N.W.2d 422, 428 (Minn. Sup. Ct.  1989).

(29) Minnesota statute now requires the application of the
relevancy standard in determining the admissibility of DNA
testing.  Minn. Stat. Sec.  634.25 (1989).

(30) Supra note 2.  

(31) For detailed discussions of the DNA identification process,
see John W. Hicks, ``DNA Profiling:  A Tool for Law
Enforcement,'' supra note 1; and Thompson and Ford, ``DNA
Typing:  Acceptance and Weight of the New Genetic Identification
Tests,'' 75 Va. L. Rev. 45 (1989).