Maria Lewis Branch Manager - Field Management and Services Branch Kentucky Child Support Enforcement Program Frankfort, KY

Transcription

1 Tuesday: Breakout Session 4 Workshop C Time: 1:00 p.m. - 2:15 p.m. Location: Regency 3 WHO S MY DADDY? AN UPDATE ON PATERNITY ISSUES (CLE) This workshop will cover the paternity establishment process from both the scientific and legal perspectives. The medical expert will demystify DNA testing, explaining in lay terms its scientific basis and how to read a paternity test report. The legal expert will discuss all one needs to know to address a legal challenge to test results -- from depositions to interrogatories to expert witness testimony and chain of custody. Both panelists will share memorable cases and novel legal issues with regard to DNA testing. Presenters: Debra Davis, Ph.D. Laboratory Director Orchid Cellmark - Paternity Laboratory Dayton, OH Andrew Schweller Chief Civil Division Allen County Prosecutor s Office Allen County, IN Moderator: Maria Lewis Branch Manager - Field Management and Services Branch Kentucky Child Support Enforcement Program Frankfort, KY My Notes... ERICSA 47th Annual Training Conference & Exposition Lexington, Kentucky 10

2 Paternity Testing Debra L. Davis, Ph.D. Laboratory Director ext

3 DETERMINING PATERNITY USING DNA EVIDENCE OBJECTIVES: Introduction Premises of genetic testing Accreditation How to read a paternity report Alleged father not available Atypical cases 1

4 Basic premises of paternity testing: 1) A woman has named an alleged father of her child 2) This alleged father denies paternity (either M or AF is not truthful) 3) The lab is called upon to test the DNA of these people 2

5 When these assumptions are valid Paternity cases can be resolved virtually all the time When samples are fraudulent and/or relationships are misstated: Paternity: the lab will usually know and investigate Family study: Often the lab will not be able to tell and may report incorrect findings! 3

6 Assumptions made by the lab: The woman Is the true, biological mother of the child The AF had access to the mother during the conceptive window Other potential AFs are unrelated to the named AF (not a brother or a twin) AF is not related to M (A problem with no mother cases) Paternity: Samples are not fraudulent (RINGER) Family study: All relationships are true and correct. 4

7 How Reliable is Testing? Tested man is excluded: Mother asks: How can this be? He was the only one I was with. But he looks just like his father. But some of the systems have a match. -OR- Tested man is not excluded. He asks: How can this be? She has lots of boyfriends. 5

8 Frequently Asked Questions But the AF claims to have a different result (Tested on a curiosity test, with no Chain of Custody) Reliable? 6

9 AABB requirements Accountability y( (Chain of Custody) is maintained throughout the collection and testing process Laboratory testing involves standardized practices Validations of all testing ti component Testing performed by qualified technicians Internal and External Proficiency testing External inspections PHD review of all critical data 7

10 Chain of Custody CHAIN OF CUSTODY IS CRITICAL 8

11 Collection procedures: important points Obtain and document positive ID Verify spelling of names of all parties DOB and SS# or other official state ID Thumbprint Photographs: signed Sign and Date COC: Third Party(Collector) 9

12 Client Authorization Form Chain of Custody (COC) COC completion critical Front of form: main points Identification of tested individuals Thumbprints Signatures of collected parties/guardian of child 10

13 Mother and child data 1. Names of all parties 2. Race for mother only 3. Gender for child only Thumbprint: all parties 11

14 Statement of Consent and Release: Sign and Date We cannot do any testing unless each party (M and AF) agree to genetic testing. Signature gives permission to test and release the findings to be used in a court of law. A second space is provided for the second party. If no parent is present with the child, a guardian must sign. 12

15 Date and Time of collection Reverse side of Chain of Custody Form Collector s signature! If this is missing, there is no proof of COC Notary not required Mutual recognition: Signed by both parties if present together. 13

16 Principle of Relationship Testing A child must inherit everything from parents If child gets allele A from mom A B Allele B must come from Dad A B 14

17 Biology of inheritance MOM DAD CHILD Other possible combinations: From MomFrom Dad

18 PATERNITY TESTING Family inheritance of STR alleles PCR product size (bp) Father Child # Child # Child # Mother 16

19 Paternity Testing A paternity test asks the question: Can the alleged father be excluded as being the biological father of the child? 17

20 Using STRs for Paternity Mother Child Alleged Father Incl. 5,7 3,5 3,4 Excl. 5,7 3,5 4,7 18

21 Actual genetic testing results System: the places (loci) on the DNA we ve tested. Alleles: The SIZES of the DNA fragments at the tested loci. ALWAYS compare C to M first, then to AF. Match or no match? If match, calculate a Paternity Index. If no match, PI is 0 (Exclusion) ) 19

22 CPI and POP This box shows the essential conclusions of the report. It is a statistical treatment of the genetic observations. CPI is the odds in favor of paternity. This is converted into a POP. POP = CPI (CPI + 1) CPI of 1000 gives a 99.9% POP CPI of 10,000 gives a 99.99% POP, etc. NOTE: POP CANNOT BE =100% 20

23 INCLUSION EXAMPLE 21

24 EXCLUSION EXAMPLE 22

25 Verbal conclusion based upon the genetic testing Either: AF cannot be excluded from paternity OR AF is excluded d from paternity NEVER The AF IS the father 23

26 How many exclusions are enough? AABB standards require a minimum of 2 Orchid Cellmark requires 3 exclusions 24

27 What are mutations? How do they occur? How are they considered in paternity testing? Genetic pattern which is inconsistent with paternity (looks like an exclusion) Occurs during egg/sperm formation >90% of all mutations are +/- 1 repeat unit from the obligatory allele Handled mathematically (mutation frequency/pe) significantly decreases CPI Of the 341,000 cases reported in AABB accredited laboratories in 2005,.02% were found to be double mutations. 25

28 Special Circumstances (i.e Deceased AFs) What if the alleged father is not available to test? Are both parents of the Alleged Father available to take his place? Are both parents the true Biological parents of the Alleged Father -OR- Are there OTHER TRUE relatives of Alleged Father to test? 26

29 Grandparentage Reconstruct Inclusion Genetic System Mother Child Alleged Pat Grandmother Alleged Pat Grandfather D3S , 16 14, 15 14, 16 14, 15 vwa 17, 18 17, 18 16, 17 14, 15 D2S , 23 19, 24 18, 21 17, 24 D8S , 14 13, 14 13, 14 13, 14 D21S11 30, , , 31 D18S , 22 14, 15 22, 23 D19S433 13, 14 13, 14 13, , 13 THO 1 6, 7 6, , , FGA 21, 25 24, 25 20, 25 21, 24 CPI=

30 Grandparentage Reconstruction Exclusion Genetic System Mother Child Alleged Pat Grandmother Alleged Pat Grandfather D3S , 16 14, 15 14, 16 15, 17 vwa 17, 18 17, 18 16, 19 14, 15 D2S , 23 19, 24 18, 21 17, 20 D8S , 14 13, 14 11, 12 10, 11 D21S11 30, , , 31 D18S , 22 14, 15 17, 23 D19S433 13, 14 13, 14 15, , 14.2 THO 1 6, 7 6, , , FGA 21, 25 24, 25 20, 25 21, 26 CPI=0 28

31 What s wrong with this picture??? Genetic System Mother Child Alleged Pat Grandmother Alleged Pat Grandfather D3S , 16 14, 15 14, 16 13, 15 vwa 17, 18 17, 18 16, 17 14, 15 D2S , 23 19, 24 18, 21 17, 18 D8S , 14 13, 14 13, 14 15, 16 D21S11 30, , , 31 D18S , 22 14, 15 20, 23 D19S433 13, 14 13, 14 13, , 14.2 THO 1 6, 7 6, 9.3 6, 9.3 9, 9.3 FGA 21, 25 24, 25 20, 25 21, 25 CPI=0 29

32 Report Stipulations Results are contingent upon the biological relationships as stated Results do not supercede any genetic testinginwhichtheallegedparentistested directly We do not answer questions the client does not ask 30

33 IDENTICAL TWINS DNA IS IDENTICAL PATERNITY TESTING CANNOT DISTINGUISH BETWEEN TWINS IF TWINS ARE INCLUDED BOTH WILL BE INCLUDED 31

34 BONE MARROW TRANSPLANT 32

35 FINGERNAILS 33

36 BLOOD SAMPLE 34

37 What s wrong with this picture??? Genetic System Mother Child Alleged Father 1 FINGERNAILS Alleged Father 1 BLOOD D3S , 18 15, 17 15, vwa 14, 17 14, 17 15, D2S , 25 21, 25 18, 23 17,22 D8S , 13 13, ,14 D21S11 30, , , ,2929 D18S51 14, 19 14, 15 13,15 12 D19S433 13, 16 13, 16 13,16 12,16 THO 1 9, ,8 7,9.3 FGA 23, 25 20, 23 22,23 21,22 CPI=0 CPI=0 35

38 Who s Your Daddy Second Part of the Paternity Establishment Workshop Presented by Andrew Schweller, J.D. (Note: This presentation will follow that of Debra Davis, Ph.D. ppt presentation submitted along with this) Submission of DNA into the Record. 1. Brief overview of how we get results ready for Court a. Electronic sending b. Printing c. Copying d. Quality Control 2. Submission to Court a. Questions of the Parties i. Submitted to the testing ii. Understand results 1. Explaining the results to parties iii. Comfortable with the results iv. Can the Court see the results b. One party fails to appear-scenario i. Predicate questions ii. Go over pictures iii. Objections? 3. Possible Problems a. Never tested i. Using samples from a different case. b. One of the parties is deceased. i.. Next of Kin test ii. Blood stain/sample c. IV-D staff took sample rather than a trained person from the lab. d. Chain of custody e. Pictures/ID i. Where did my sample go? ii Someone messed with the sample. iii Timely notice? (IE-Indiana trial rule, if not objected to 30 days prior to hearing, issue is waived) i. Is a digital picture as good as the Polaroid? Do we have the same person in court who gave the sample? Quality control f. We took the CVS/Walmart test i. Daubert Issue

39 ii. Quality control g. Twins h. We never had intercourse. 4. Legal Representation from Laboratory for Court a. Depositions b. Interrogatories c. Expert witness testimony/testimony in court d. Communication with the laboratory Ph.D. and preparation for legal presentation

40 When it Comes to Supporting Children We Don t Horse Around! 1

41 Evidentiary Problems and DNA Laws Regarding the Use of DNA Reports. Legality of Said Statutes Foundations Challenges to DNA Results 2

42 Statutes Many states have laws for admitting DNA into Evidence IN Party has 30 days before hearing to file written objection Results admissible without necessity of foundation, testimony or other proof regarding the results. Genetic Test showing 99% probability creates presumption 3

43 MI (MCL et seq.) Party refusing to submit to testing, Court may enter default judgment. Results and summary to be served on parties and filed with Court. Objections waived unless made in writing setting forth basis for objection within 14 days after service of results. No objection= Court shall admit results and summary without requiring foundation testimony If objection, objecting party has burden of proving by clear and convincing evidence that foundation evidence is needed.

44 PA (Penn Code et seq) - ALJ has parties stipulate the results. - AP must file with court a statement of material facts that compose defense before final results hearing. GA (GA Code et seq) Must lodge objections to foundation, authenticity, and accuracy no later than 30 days preceding trial. If objection lodged, expert testimony must be offered by the exhibit s sponsor. VA - Report must have a sworn statement regarding chain of custody. - If objection is made more than 7 days prior to final hearing, court may require experts to testify providing that the objecting party bear the cost.

45 CA (CA Family Code ) Test must show: chain of custody, taken in course of business, by a qualified technician and sworn to by custodian of records. Objections to foundation and chain of custody must be lodged in writing before 5 days of hearing. IL (750 ILCS 45/11) - AP only may object to foundation, authenticity, or accuracy no later than 28 days prior to trial. - If objection, expert must testify with costs assessed to the objecting party - Report must show chain of custody and combined paternity indexes.

46 OH (ORC 3111 et seq. OAC 5101:12) Parties may object to admissibility ibilit of test t in writing 14 days prior to a final hearing. If no objection lodged, exhibit s sponsor needs not establish authenticity, accuracy or foundation. WI (WI Code ) Court determined experts will conduct the testing Reports admissible w/o expert testimony as long as notice given and no objection filed. If objection filed, independent tests ordered and objecting party is required to pay for the expert testimony.

47 Legality of DNA Statutes Crawford v. Washington 541 US 36 (2004) Right to confront those who present testimony against a Defendant Melendez-Diaz v. Massachussetts 129 S.Ct (2009)

48 Certificates entered into evidence without any witness in criminal trial. Arguments for letting in Non Accusatory Not a conventional witness Scientific test is reliable Business record Court rejected arguments Saving Grace-Court Upheld the use of Notice and Demand Statutes.

49 Foundations Evidence that the general scientific principles and techniques involved in the testing were valid and capable of producing reliable results Evidence that the individual who performed the test did so in an acceptable manner.

50 Starting Point for your Witness 1. Is there a theory which is generally accepted in the scientific community which supports the conclusion that DNA testing can provide reliable results? 2. Are there techniques or experiments that exist that are capable of producing reliable results which are generally accepted in the scientific community? 3. Did the testing ti laboratory use accepted techniques in analyzing the sample?

51 Possible Challenges Collection Handling samples Degrading/Age of Sample Training Validation Procedures Lab s Error Rate Quality and the methodology of the lab work. Documentation of the lab Qualifications and training Standards d for documentation ti Accreditation Methods

52 Expert Testimony must help the trier of fact to understand the evidence or determine a fact in issue. Needs sufficient expertise in the field with regard to what they are giving the opinion. What do you need to bring out? Degrees Specialized training Years in the field Professional licenses or certifications Membership in various professional organizations Prior Testimony

53 Impartiality Who pays for the expert What is the relationship to the parties Is the opinion the same in every case What is the interest t of the expert

54 Testimony to Avoid Opinions based on hypothetical that is based on incomplete are incorrect data Speculative opinions Opinions i based on assumptions Opinion on the ultimate fact at issue

55 Other Challenges Hearsay Out of Court statement offered for the truth of the matter asserted Business Record Exception Record is identified by person under whose supervision the record is kept and shown to be original made in the regular course of business and kept in the regular course of the business at or near the time of the recorded transaction, by one having both a duty to so record or personal knowledge of the transaction represented by the entry. Sponsor of exhibit need not be person who made the record. Person who prepared record/report and has personal knowledge of the result can attest to results and the testing ti was pursuant to protocol.

56 Foundation can be established by anyone who possesses the knowledge and functional understanding on the record keeping process with respect to the entry, transaction or declaration contained in the document.