Com. v. Lanigan

Citation596 N.E.2d 311,413 Mass. 154
Parties, 61 USLW 2128 COMMONWEALTH v. Thomas J. LANIGAN, (and four companion cases). Commonwealth v. Leo Breadmore, et al., (and thirty-three companion cases 1 ).
Decision Date20 July 1992
CourtUnited States State Supreme Judicial Court of Massachusetts
1

Stephanie Martin Glennon, Asst. Dist. Atty. (Marianne C. Hinkle, Asst. Dist. Atty., with her) for Comm.

William C. McPhee, Quincy (Dolores E. O'Neill, Boston, with him) for Thomas Lanigan.

Brownlow M. Speer, Committee for Public Counsel Services, Boston (Gordon A. Oppenheim, Committee for Public Counsel Services, with him) for Leo Breadmore, Jr.

Before LIACOS, C.J., and ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

After a consolidated pretrial hearing, a judge of the Superior Court ruled that evidence regarding forensic tests of the defendants' deoxyribonucleic acid (DNA) could not be admitted at the defendants' criminal trials. The Commonwealth sought leave to appeal from a single justice of this court. The single justice concluded that the order of the Superior Court judge was the equivalent of the allowance of a motion to suppress and, hence, allowed the Commonwealth leave to appeal to the full court. G.L. c. 211, § 3 (1990 ed.). See Mass.R.Crim.P. 15(b)(2), 378 Mass. 842 (1978). We affirm the order of the judge of the Superior Court.

I. Facts. The parties do not dispute the basic facts underlying both cases.

A. Thomas Lanigan. In January, 1989, defendant Thomas J. Lanigan, a Caucasian, was indicted for rape of a child, and indecent assault and battery upon three minors. Pursuant to a court order, the Commonwealth obtained a blood sample from Lanigan and submitted it to the Federal Bureau of Investigation (FBI) for DNA testing and comparison with DNA extracted from semen on the clothing of the rape complainant. Through a process known as Restriction Fragment Length Polymorphism analysis (RFLP analysis), 2 the FBI used four genetic probes to develop "profiles" of DNA from both the blood and semen samples. On the basis of these DNA profiles, the FBI concluded that Lanigan's DNA "matched" the DNA from the semen in certain areas specifically identified by the four genetic probes. 3 See Commonwealth v. Curnin, 409 Mass. 218, 229-230, 565 N.E.2d 440 (1991) (describing the use of genetic probes to identify specific areas on the DNA molecule).

In order to determine the frequency with which Lanigan's DNA profile occurs in the general Caucasian population, the FBI compared Lanigan's alleles against allele frequency estimates it had developed from population databases of 200 and 700 Caucasians. 4 The FBI estimated that, when considered against the data base of 200 Caucasians, the probability was four million to one that the DNA of an individual selected at random from the general Caucasian population would "match" the DNA found on the complainant's clothing. When considered against the data base of 700 Caucasians, the probability of a random "match" dropped to 2.4 million to one. 5

B. Leo Breadmore, Sr., and Leo Breadmore, Jr. In July, 1989, defendants Leo Breadmore, Sr., and Leo Breadmore, Jr., each were indicted for rape of a child, assault with intent to rape a child, indecent assault and battery upon a child, incest, and attempt to intimidate and threaten a witness. All of the alleged victims of the sexual offenses are granddaughters of Leo Breadmore, Sr., and nieces of Leo Breadmore, Jr. One of the alleged victims became pregnant and had a child. This alleged victim testified before the grand jury that the only individuals with whom she had intercourse prior to the birth of her child were Leo Breadmore, Sr., and Leo Breadmore, Jr. She also testified that she had intercourse with both of the Breadmores near the time of the conception of her child.

The Commonwealth obtained blood samples from Leo Breadmore, Sr., Leo Breadmore, Jr., the alleged victim, and her child, all of whom are Caucasian. The blood samples were submitted to Cellmark Diagnostics Laboratory (Cellmark) for RFLP analysis to determine whether the DNA of the child "matched" the DNA of one of the defendants. Cellmark used five genetic probes in its RFLP analysis, developing an autorad 6 for each genetic probe, as well as an autorad of a "cocktail" of several probes mixed together. 7 Autorads of the first four individual probes revealed that, according to Cellmark's "matching rules," see id. at 230, 565 N.E.2d 440, the DNA profiles of both Leo Breadmore, Sr., and Leo Breadmore, Jr., "matched" the DNA profile of the child. These four autorads, however, provided no significant differentiation between the DNA profiles of the Breadmore defendants. Accordingly, Cellmark could not yet exclude either of them as the father of the child.

The autorad of the fifth probe, referred to by Cellmark as G-3, was also inconclusive, but offered the possibility for an exclusion of Leo Breadmore, Jr. 8 To account for the possibility that the first G-3 probe had run off the gel during electrophoresis, Cellmark prepared a second G-3 autorad by using a shorter period for gel electrophoresis. On the basis of the second G-3 autorad, Cellmark excluded Leo Breadmore, Jr., as the father of the child. On the basis of all five autorads, Cellmark concluded that it was "highly likely" that Leo Breadmore, Sr., was the father of the child. At the consolidated hearing, the Commonwealth provided an expert witness who testified that, on the basis of allele frequencies estimates developed by Cellmark, 9 it was 2,500 times more likely that the DNA profile presented by the five autorads would occur in Leo Breadmore, Sr., if he were the father of the child than if he were not the father.

C. The Hearing. The defendants filed motions in limine to prevent the Commonwealth from introducing any evidence regarding the DNA tests. The defendants argued that DNA test evidence would be unduly prejudicial and speculative. The defendants also argued that the Commonwealth had failed to establish: (1) that the "scientific community generally accepts the theory that DNA tests produce reliable results; (2) [that] techniques currently exist in DNA testing that are generally accepted by the scientific community and that are capable of producing reliable results; and (3) whether the laboratory that performed the tests used these techniques in analyzing the samples in the instant case."

The motion judge held a consolidated hearing to determine whether "the community of scientists involved generally accepts the theory or process" involved in the DNA testing of the defendants. The Commonwealth presented four expert witnesses at the hearing: (1) Dr. Harold Deadman, a supervisory special agent and chemist for the FBI's DNA Analysis Unit; (2) Dr. David Housman, a molecular biologist and professor at the Massachusetts Institute of Technology who conducts research regarding DNA and its role in human disease; (3) Dr. Robin Cotton, a molecular biologist and deputy director of Cellmark's laboratory; and (4) Dr. Neil Risch, a population geneticist and professor at Yale University. The defendants presented a transcript of the testimony of Dr. Laurence Mueller, a population geneticist, given in Commonwealth v. Curnin.

After hearing the testimony of the four expert witnesses, the judge ruled that "the scientific theory underlying DNA testing is generally accepted in the scientific community and satisfies the Frye standard." See Curnin, supra 409 Mass. at 220, 565 N.E.2d 440 (parties did not dispute that "the underlying theory and at least the general processes" of DNA testing are accepted in the scientific community). See also Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The judge ruled, however, that the results of the particular DNA tests in the instant cases were inadmissible. The apparent basis of this ruling was the judge's finding that there was "disagreement within the scientific community regarding the validity of the [Cellmark and FBI] data base[s]." Accordingly, the judge ruled that the statistical probability estimates in both cases were inadmissible. In addition, the judge found that Cellmark's conclusions as to paternity were unreliable, and thus inadmissible, because Cellmark had excluded Leo Breadmore, Jr., solely on the basis of the second G-3 probe, thereby violating an internal Cellmark procedure of excluding only on the basis of two probes.

II. Admissibility of DNA Testing Evidence. In Commonwealth v. Curnin, we stated that "[w]e have usually applied the Frye test in deciding whether evidence produced by scientific theory or process is admissible, that is, whether the community of scientists involved generally accepts the theory or process." Id. 409 Mass. at 222, 565 N.E.2d 440. With regard to DNA testing, we stated that "we would not permit the admission of test results showing a DNA match (a positive result) without telling the jury anything about the likelihood of that match occurring." Id. at 222 n. 7, 565 N.E.2d 440. By way of contrast, "evidence of the absence of a match (a negative result) could properly be admitted without any need for a showing of the likelihood of a match occurring." Id. In the present case, we shall consider the admissibility of both the DNA "matches" of all of the defendants, followed by consideration of the DNA exclusion of Leo Breadmore, Jr. And, as in any case in which we consider the general acceptability of novel scientific evidence, we make our "own determination without regard to the conclusions of the trial or motion judge." Id. at 223, 565 N.E.2d 440. In reaching this determination, we "may properly consider not only the evidence in the record but also the reasoning and conclusions of other courts and the writings of experts." Id.

A. DNA "Matches". Because evidence regarding a DNA "match" cannot be admitted without appropriate statistical support, we must consider the general scientific acceptance at this time of the method by which...

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45 cases
  • Fishback v. People, 92SC68
    • United States
    • Supreme Court of Colorado
    • April 26, 1993
    ...evidence means nothing without a determination of the statistical significance of a match of DNA patterns."); Commonwealth v. Lanigan, 413 Mass. 154, 596 N.E.2d 311, 316 (1992) ("Because the frequency estimates are inadmissible, evidence of a match between profiles is also inadmissible."); ......
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    ...Research Council's Committee on DNA Technology in Forensic Science. Barney, 10 Cal.Rptr.2d at 745; See, Commonwealth v. Lanigan, 413 Mass. 154, 596 N.E.2d 311, 316 (1992); Vandebogart, 616 A.2d at 494-95; State v. Cauthron, 120 Wash.2d 879, 846 P.2d 502, 517 (1993). These courts, all of whi......
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    ...of match was not admissible when not accompanied by scientifically reliable population frequency estimate); Commonwealth v. Lanigan, 413 Mass. 154, 162, 596 N.E.2d 311, 316 (1992) (court held there was no general acceptance in the field of population genetics when there exists a "lively, an......
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