DNA: FORENSIC AND LEGAL APPLICATIONS By: Lawrence Koblinsky, Thomas F. Liotti, Jamel Oeser-Sweat

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1 DNA: FORENSIC AND LEGAL APPLICATIONS By: Lawrence Koblinsky, Thomas F. Liotti, Jamel Oeser-Sweat Citation: LAWRENCE KOBLINSKY ET AL., DNA: FORENSIC AND LEGAL APPLICATIONS (John Wiley & Sons, Inc., 2005). Reviewed By: Christina M. Holden 1 Relevant Legal & Academic Areas: Biology; Constitutional Law; Criminal Law; Evidence; Forensic Science; Trial Practice. Summary: Book provides a thorough overview of human DNA and its application to criminal prosecutions. Areas of interest include an easy-to-follow breakdown of forensic science, including discussions on genetics and human biology, the impact forensic science has had on the courts in the past, and how forensic science is expected to impact criminal cases in the future. About the Author(s): Lawrence Koblinsky is a professor of biology, the current Associate Provost at John Jay College of Criminal Justice, and a Fellow of the American Academy of Forensic Science. 2 Thomas F. Liotti is the Village Justice in Westbury, New York, and a current partner of Thomas F. Liotti of Garden City, New York. 3 He has served as the president of the New York State Association of Criminal Defense Lawyers and as a Fellow in the American Board of Criminal Lawyers. 4 Jamel Oeser-Sweat is an intellectual property attorney licensed to practice in New York and New Jersey and before the Patent and Trademark Office. 5 He has published several works in the field of microbiology. 6 Chapter 1 Biochemistry, Genetics and Replication of DNA: Chapter Summary: Basic background of DNA composition and how it is created. Chapter Discussion: This chapter provides a precise, yet concise, background of the basic chemistry and makeup of human DNA and early DNA analysis. DNA, short hand for deoxyribonucleic acid, is the basic building block of human biology. It is composed of four nitrogenous bases: 7 C, G, A, and T. These four nucleotides bind together via hydrogen bonds where A T bind, and C G bind respectively. DNA comes in the form 1 Associate Editor for the Syracuse Science and Technology Law Reporter; J.D. candidate, Syracuse University College of Law, expected LAWRENCE KOBLINSKY ET AL., DNA: FORENSIC AND LEGAL APPLICATIONS Back Cover of Book (John Wiley & Sons, Inc., 2005). 3 Id. 4 Id. 5 Id. 6 Id. 7 A nitrogenous base is defined as: nitrogen-containing molecule having the chemical properties of a base. available at def=. A base is defined as: any basic (alkaline) compound containing nitrogen, but generally referring to one of four complex molecules (nucleotides) that form the building blocks of the nucleic acids, DNA and RNA. available at

2 of a double right hand alpha helix 8 where each strand has a 3 end and a 5 end, which run anti-parallel to each other. DNA is located in the nucleus of a cell and forms the total composition of an individual. DNA is very repetitious. Nearly 99.9% of every person s DNA is the same, with differences in roughly 1/1000 base pairs. 9 The differences in base pairs are what make each person unique and are, therefore, the focus of DNA analysis. Physical features that are seen in a person, as a result of differences in base pairs, are what scientists call an individual s phenotype. 10 During mitosis, or cell division, DNA forms a super coil. These super coils form the chromosomes. 11 Humans have 22 pairs of non-sex chromosomes and 2 sex pairs, yielding a total of 26 chromosomes. Each gamete, 12 or the egg and/or sperm, contain only 23 chromosomes. Male and female gametes undergo a division called meiosis twice. 13 Independent segregation and independent assortment are a part of this process. Therefore, a person receives one-half of his/her genetic makeup from each parent. Alleles 14 are different forms of a gene. 15 The locus 16 on the chromosome contains 2 alleles. If the alleles are the same at that locus, then the person is said to be homozygous 17 for that particular gene. If the pair of alleles differs, then the person is said to be heterozygous 18 at that locus. Examining the genetic make up of an individual indicates which genotype, or genetic makeup, of a person is being looked at. 19 Chapter 2 - Biological Evidence Science and Criminal Investigation: Chapter Summary: Discussion of how numerous types of bodily tissues and secretions 8 Alpha Helix is defined as: The coiled structural arrangement of many proteins consisting of a single chain of amino acids stabilized by hydrogen bonds. available at 9 Base Pair is defined as: Two complementary nucleotides held together by hydrogen bonds; baseparing occurs between A and T and Between G and C. It is also a unit used to describe nucleic acid fragment length. KOBLINSKY, supra note 2, at Phenotype is defined as: The physical appearance or functional expression of a trait. Id. at Chromosome is defined as: The structure by which hereditary information in the form of genes and noncoding DNA is physically transmitted from one generation to the next; the organelles within the cell nucleus that carries the gene. Id. at Gamete is defined as: A haploid reproductive cell. Id. at Id. at Allele is defined as: [o]ne of two or more alternative forms of a gene at a specific locus (chromosomal location). Id. at Gene is defined as: The basic unit of hereditary. A gene is a sequence of DNA nucleotides on a chromosome. Id. at Locus is defined as: The specific physical location of a gene on a chromosome. Id. at Homozygous is defined as: Having the same allele at a particular locus. For most forensic DNA probes the autoradiogram displays a single band if the person is homozygous at the locus (compared with heterozygous). Id. at Heterozygous is defined as: Having different alleles at a particular locus. For most forensic DNA probes the autoradiogram displays two bands if the person is heterozygous at the locus (compare to homozygous.) Id. at Id. at 340.

3 can be removed from a crime scene, preserved, tested, and used as biological evidence. Chapter Discussion: This chapter describes the process of gathering biological evidence from a crime scene. Biological evidence that may be found at a crime scene includes: blood, semen, urine, hair, skin, tissue, saliva, and bone. An extensive break down including the purpose and importance of each piece of biological evidence is also included. Finally, this chapter provides a comprehensive guide for how crime scene investigators can ensure the protection and preservation of a crime scene to avoid the contamination and compromise of evidence recovered. Chapter 3 Forensic DNA Analysis Methods: Chapter Summary: Explanation and examination of five common DNA analysis methods. Chapter Discussion: Five methods of forensic DNA analysis that are commonly used by crime scene investigations include: (1) Restriction Fragment Length Polymorphism (RFLP); (2) Gel Electrophoresis; (3) Southern Blotting; (4) Hybridization; (5) and Polymerase Chain Reaction (PCR). This chapter explains, in detail, each type of analysis and how they are applied to crime scene investigations. Chapter 4 - Genetics, Statistics, and Databases: Chapter Summary: Discussion about using statistical analysis to emphasize the importance of DNA evidence to the jury. Chapter Discussion: This chapter examines the history behind DNA guidelines, the generation of DNA banks, the computation of DNA statistics, laboratory accreditation, and reviewing a DNA report. Statistics are what reflect the significance of a DNA match. The statistical significance of DNA is the frequency, or the rarity, of sequence in the human population. The frequency in which alleles occur in a given population is statistically figured by applying the Hardy-Weinburg Equilibrium. 20 The application of this condition requires the examination of: (1) whether there is immigration or emigration in a population; (2) whether alleles are subject to mutation; (3) whether particular genotypes are subject to natural selection; (4) non-random mating; and (5) population size and genetic drift. Juries are provided with both the significance of a match and the frequency of the individual s profile. To ensure the reliability of DNA testing and juror reliance on DNA testing, the FBI formed the Technical Working Group on DNA Analysis Methods (TWGDAM), which developed testing guidelines for DNA laboratories. The TWGDAM is currently known as the Scientific Working Group on DNA Analysis Methods. 20 Hardy-Weinburg Equilibrium is defined as: The condition, for a particular genetic locus and a particular population, with the following properties: Allele frequencies at the locus are constant in the population over time, and there is no statistical correlation between the two alleles possessed by individuals in the populations in the absence of selection, migration and mutation. Id. at 341.

4 Chapter 5 Litigating a DNA Case: Chapter Summary: Presentation of a few strategies attorneys can utilize during litigation to make an effective use of DNA evidence for their case. Provides a history of scientific evidence and its impact on courts. Chapter Discussion: This chapter addresses the major laws dealing with the admissibility of DNA evidence. Scientific information is complex and difficult for the average person to understand. In response, the courts have developed various doctrines and rules to handle both the admissibility of scientific evidence and the use of expert testimony to explain such evidence. In a crucial case, Frye v. United States, the Circuit Court for the District of Columbia developed a doctrine to govern the admissibility of expert testimony. 21 To decide if expert testimony regarding scientific evidence was admissible, the court required the scientific evidence at issue be beyond the understanding of an inexperienced jury, such that special experience or knowledge by persons skilled in that particular science, art, or trade is necessary to explain the evidence. 22 This doctrine rendered judges the gatekeepers of expert testimony, granting them the power to keep unreliable testimony out of court. This gatekeeping function was later expanded by the Federal Rules of Evidence in four rules: (1) Rule 104(a); 23 (2) Rule 702; 24 (3) Rule 402; 25 and (4) Rule The admissibility of scientific evidence issue was finally settled by the Supreme Court in a pivotal case, Daubert v. Merrel Dow Pharmaceuticals, Inc. 27 In Daubert, the Supreme Court created a new standard for judges to comply with in performing their gatekeeping function. Before expert testimony regarding scientific evidence could be deemed admissible, the court needed to ask four questions: (1) Has the validity of the scientific technique been tested?; (2) Has the technique/theory been subject to peer review and publication?; (3) Is there a known rate of error for the technique?; and (4) Is the technique accepted to some degree in the scientific community? 28 Subsequently, the Supreme Court increased the scope of the Daubert test by addressing the issue of whether non-scientific, but technical, expert testimony was admissible in Kumho Tire Co. 21 Frye v. United States, 293 F (D.C. Cir. 1923) (upholding lower court s exclusion of defendant s expert testimony supporting the systolic blood pressure deception test because it did not have the requisite standing and recognition in the scientific community). 22 Id. at 199 (citing Frye, 293 F. at 1014). 23 FED. R. EVID. 104(a) (referring to admissibility and qualifications of a person to be a witness). 24 FED. R. EVID. 702 (referring to testimony of experts and the qualification of their opinion as being expert). 25 FED. R. EVID. 402 (requiring that all relevant evidence be deemed admissible, unless it is unconstitutional or statutorily prohibited by Congress). 26 FED. R. EVID. 403 (permitting the exclusion of relevant evidence if its probative value is substantially outweighed by its prejudicial value). 27 Daubert v. Merrel Dow Pharm., Inc., 509 U.S. 579 (1994) (holding the petitioner s expert testimony regarding scientific evidence was admissible because it was reliable under the Federal Rules of Evidence). 28 See id. at 203 (citing Daubert, 509 U.S. at 593).

5 v. Carmicheal Inc. 29 After a review of legal precedent regarding expert testimony, this chapter addresses specific case law regarding the admissibility of each type of forensic evidence, including (1) DNA evidence; (2) PCR-STR DNA evidence; (3) mitochondrial DNA; (4) animal DNA; (5) plant DNA; (6) viral DNA; (7) statistics; and (8) paternity. Next, the authors provided a step-by-step guide on forensic evidence for use by trial attorneys. Specific attention is paid to voir dire. The chapter concludes with a brief summary regarding the weight and importance of DNA evidence for defense attorneys, prosecutors, and judges. Chapter 6 DNA Evidence at Trial: Chapter Summary: Provides different strategies that can be employed by each side, to attack the admission and reliability of DNA. Several different methods are explored, including expert testimony, admissibility, and contamination. Chapter Discussion: This chapter provides advice on how forensic evidence can be utilized or contended during trial. The essential step in presenting a case during trial is the formulation of an attack plan, often referred to as the theory of the case. 30 The three requirements that must be met in order for DNA results to be deemed admissible evidence are: (1) a summary report; (2) offering of the statistical significance of DNA test results; (3) analysts conclusions with respect to the determined genetic profile... and frequency of relevant population within the major [ethnic] group. 31 For the prosecution, it is important to create a foundation for the admissibility of DNA evidence by (1) qualifying a witness as an expert in DNA evidence, and (2) qualifying a witness as an expert in the statistics that are applied to DNA analysis. These expert witnesses, not the prosecutor, should be the ones responsible for introducing the DNA evidence into trial. Therefore, it is of the utmost importance that the prosecution spends ample time preparing its expert witnesses. Not only does this prepare the witness for questioning, but it also helps the prosecution understand the DNA evidence so he/she can properly guide the witness through examination. Time spent with the witness further helps the prosecution prepare for any issues that might be brought up by opposing counsel. This chapter provides examples of proper questioning to give a general idea of how a prosecutor can approach the introduction to experts and the questioning of experts. In contrast to the above strategy employed by the prosecution, the defense attorney must develop a way to neutralize the effect of DNA evidence. Strategies a defense attorney can utilize to neutralize the effect of the prosecution s DNA evidence include (1) attacking the test used, (2) attacking the expert s qualifications; (3) attacking the accreditation of the laboratory where the DNA tests were performed, (4) showing there was a lack of 29 Kumho Tire Co. v. Carmicheal, Inc., 526 U.S. 137 (1999) (holding the admittance of a tire expert s testimony was an abuse of discretion because the trial court asked the expert reliability questions when the expert relied on experience-based observations). 30 Id. at Id. at 240.

6 discovery, (5) showing the DNA evidence was improperly obtained, and (6) showing the DNA evidence was contaminated. Detailed methods for each of these strategies are addressed in this chapter. Chapter 7 Exonerating the Innocent through DNA: Chapter Summary: Most people think of DNA as a useful tool for obtaining a criminal conviction, but fail to think about its other applications. Legal standards have been developed regarding the use of DNA to exonerate wrongfully convicted persons and for post-conviction testing. 32 Appendices: Appendix A: Bibliography. Appendix B: State specific cases involving DNA admissibility. Appendix C: Information on overturning convictions by utilizing DNA evidence. Appendix D: New York state offenses requiring mandatory DNA testing. Appendix E: Postconviction DNA Testing, Preservation of Evidence and Compensation for Wrongful Convictions: Relevant Legislative Information. 33 Appendix F: Discovery items. Appendix G: Glossary. DISCLAIMER: This book review is not intended to infringe on the copyright of any individual or entity. Any copyrighted material appearing in this review, or in connection with the Syracuse Science & Technology Law Reporter with regard to this review, is disclosed and complies with the fair or acceptable use principles established in United States and international copyright law for the purposes of review, study, criticism, or news reporting. The views and opinions expressed in the reviewed book do not represent the views or opinions the Syracuse Science & Technology Law Reporter or the book reviewer. 32 Kumho Tire Co., 526 U.S. at Id. at 325.