Graham v. State

• Citation: 168 Ga.App. 23,308 S.E.2d 413
• Decision Date: 14 September 1983
• Docket Number: No. 66702,66702
• Parties: GRAHAM v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 413

308 S.E.2d 413

168 Ga.App. 23

GRAHAM v. The STATE.

No. 66702.

Court of Appeals of Georgia.

Sept. 14, 1983.

John F. Nebl, for appellant.

Robert E. Wilson, Dist. Atty., Robert E. Statham III, Asst. Dist. Atty., for appellee.

BANKE, Judge.

The appellant was convicted of rape, aggravated assault, aggravated sodomy, and burglary. An expert witness testified concerning the identification of blood samples based on a procedure known as electrophoresis. In his sole enumeration of error, the appellant complains that the trial court erred in allowing the witness to testify concerning the statistical or mathematical probability of certain enzymes being found in the blood of the general population. The witness testified that his statistics were derived from some 2,000 blood samples seen in his lab over a period of time and that his statistics coincided with those provided by other crime laboratories, including that of the Federal Bureau of Investigation. Held:

"The opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses." OCGA § 24-9-67 (Code Ann. § 38-1710). The testimony complained of was clearly within the area of the witness' expertise, and the appellant's objection to it went to its weight rather than its admissibility. See generally Jenkins v. State, 156 Ga.App. 387, 274 S.E.2d 618 (1980); Breland v. State, 134 Ga.App. 259, 214 S.E.2d 186 (1975).

Judgment affirmed.

CARLEY, J., concurs in the majority opinion only.

DEEN, P.J., concurs specially.

DEEN, Presiding Judge, concurring specially.

The majority opinion is correct in recognizing that this court has approved the admissibility of expert testimony in the field of electrophoretic serology. Caution, care and concern must be observed in two areas of serology statistics through mathematical probability.

Fresh Blood--Dried Blood, and Standard Deviation Analysis:

Electrophoresis is a "physical method for the separation of biologically important proteins through the use of electric current ... [Protein] molecules are placed on an appropriate medium and subjected to an electrical field, [thus] migrat[ing] toward the pole of the opposite charge. Blood proteins [because they] vary in size, shape, and density and charge ... [also] vary in electrophoretic mobility. Therefore, after electrophoresis, they are separated into distinct bands on the supporting medium." Jonakait, Will Blood Tell? Genetic Markers in Criminal Cases, 31 Emory L.J. 833, 912 (1982). Electrophoresis has also been simply defined as "the detection of genetic markers" in dried blood. Id. at 841.

The question that weighs heavily throughout the present case is whether evidence in the form of dried blood is scientifically verifiable by experts in the field of electrophoretic serology. Although electrophoretic serology has been recognized by this court as a proper means of identifying properties in blood (see Jenkins v. State, 156 Ga.App. 387, 388, 274 S.E.2d 618 (1980)), and although its reliability in the testing of fresh blood has also been endorsed as scientifically reputable, the issue remains: May new techniques of testing dried blood, which have not been implemented in field tests, receive the same credibility as those already associated with the testing of fresh blood?

The test normally applied to the admissibility of new scientific evidence is found in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define ... [W]hile courts 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." Id. at 1014.

This test from Frye, though somewhat vague, appears at first blush to have been met in the present case, but closer scrutiny of electrophoretic testing is not altogether satisfying. "Frye rests on the notion that science is a never-ending construct," upon which contributors build. Jonakait, supra, at 846. It also involves a three-part process: (1) development of a procedure; (2) testing of results; and (3) general application of results. Jonakait disapproves of electrophoretic serology in terms of dried blood examination because it does not meet either step 2 or step 3 of Frye. Jonakait notes that electrophoretic serology (and forensic serology in particular) is a highly specialized field and thus is not accessible to widespread testing within the scientific community. In speaking to both points two and three of the Frye test, he points out that the narrowness of the field runs contrary to the thorough testing of the results (step 2 of Frye ), and, most importantly, defeats the general application of the results (step 3 of Frye ). Forensic serologists, he asserts, are usually law enforcement officials, thus making the results of those engaged in such work tainted, but nonetheless highly susceptible to judicial recognition. The one dimensional composition of forensic serology (only law enforcement officials participate in it) also makes next to impossible the defense attorney's task of rebutting successfully the reliability of judicially acceptable expert testimony in this field. Thus, the burden of proof appears to be placed on the defense attorney to show unreliability of evidence rather than upon the state to first demonstrate reliability. See People v. Young, 106 Mich.App. 323, 308 N.W.2d 194 (1981); People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977); State v. Washington, 229 Kan. 47, 622 P.2d 986 (1981). Jonakait recommends that in accordance with Frye, serologists do extensive field research with dried blood so that their results will reflect the age of the blood and various conditions under which blood becomes altered.

The main criticism that Jonakait makes is that the scientific reliability of a highly technical procedure cannot be discovered in a self-contained field composed only of specialists who are doing the bidding of law enforcement officials. The tripartite test of Frye cannot be met as to parts 2 and 3 unless the data is tested impartially and with general (scientifically verifiable) application.

In addition to the above criticism of forensic serology, the serologist who testified in the instant case seems to have exceeded the scope of his expertise in his announcement of statistical data concerning the defendant. By ignoring the need to insert a standard deviational computation as to events occurring by chance or design, the expert, in his determination that only 33 out of 10,000 people had blood properties like those of the defendant, failed to give an accurate depiction of the defendant's connection to the crime. The defense attorney, on the other hand, could have insisted that a professional statistician be called in to verify the findings of the serologist vis-a-vis the general population. Additionally, the witness derived the 2,000 blood samples from whole or fresh blood, while as to the case under consideration, we deal with dried blood as well as fresh. See Statistics in the Law: Potential Problems in the Presentation of Statistical Evidence, 40 Wash. & Lee L.Rev. 313, 325 (1983), as to statistics used in standard deviation analysis, the results which when properly utilized will often determine whether the actual events occurred by chance or by design. The leading case on standard deviation analysis is Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977).

In discussing the scholarly analysis of some of the reservations raised in the summary by Jonakait, Frye was...