People v. Bullard-Daniel
| Decision Date | 10 March 2016 |
| Citation | 42 N.Y.S.3d 714,54 Misc.3d 177 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Vincent BULLARD–DANIEL, Defendant. |
| Court | New York County Court |
Robert A. Zucco, Esq., John P. Granchelli, Esq., Assistant District Attorneys, Appearing for the People.
Christopher A. Privateer, Esq., Assistant Public Defender, Appearing for Defendant.
Defendant is charged with Predatory Sexual Assault ( Penal Law § 130.95[1][a] ) and Burglary in the First Degree ( Penal Law § 140.30[1] ). During pretrial proceedings, the Court learned that the People intended to introduce DNA evidence as part of their case in chief. Defense counsel was provided with copies of the DNA report. Following his review of the report, defense counsel raised the question of the admissibility of the report as well as testimony relating to the report and thereafter sought a Frye hearing (see Frye v. United States, 293 F. 1013 [D.C.Cir.1923] ). After consideration of written submissions, the Court concluded that it would conduct a Frye Hearing.
The specific issue here is the admissibility of the forensic DNA testing results performed on a number of items of evidence discovered at the crime scene (the victim's house) and on cuttings from a dried red-stained area of a sock found in Defendant's bedroom. DNA testing on those items was conducted by the Erie County Central Police Services Forensic Laboratory ("the Lab") and the results were interpreted using a relatively new software program referred to as "STRmix."1
The parties have provided the Court with voluminous submissions in support of their respective positions. Those submissions include references to relevant cases, articles from scientific journals, and expert affidavits. The Court recognizes that the science behind DNA analysis and statistical probabilities is complex. This Court, however, previously rendered a Decision involving the admissibility of a DNA "kit" (see People v. Borden, Decision attached to People's Memorandum of Law, dated December 23, 2015) and therefore is familiar generally with the scientific principles at issue.
Before summarizing the testimony from the Frye Hearing, the Court believes that some background discussion of DNA analysis and interpretation is necessary. Rather than attempt to reinvent the wheel, the Court has taken the liberty of quoting at length from Judge Michael Coccoma's recent decision involving a similar probabilistic genotyping program:
DNA identification is a powerful forensic tool for solving and preventing crime.
Two common sources of data ambiguity in biological evidence are DNA mixtures from multiple contributors and low-template (evidence samples below the threshold) DNA. Although some American laboratories are moving to quantitative modeling of DNA mixture data, most still use Combined Probability of Inclusion (CPI) or Combined Likelihood Ratio (CLR), using the qualitative Boolean logic of all-or-none allele (the number of repeated words) events. Both approaches apply thresholds to the DNA data that cut off quantitative information. Their analysts subjectively apply these analytical or stochastic thresholds manually to data peaks to decide whether or not they believe the evidence peak represents an allele in the genetic material. But the more complex data that has mixtures or low-template DNA limits the applicability of such qualitative procedures.
Computer interpretation methods use more of the quantitative short tandem repeat (STR) peak height data rather than thresholds and have been used for over 20 years. Computers offer three principal advantages in the interpretation process: (1) productivity—eliminates the often time-consuming human review of cases that are impossible to solve, (2) information—human review typically makes simplifying assumptions that can discard considerable identification information containing DNA evidence whereas a computer can use a statistical model to fully examine the quantitative peak height data, and (3) objectivity—human mixture interpretation methods sometimes use the suspect genotype (pair of allele) to help infer or report results whereas a mathematically programmed computer can infer a genotype from the evidence data without using any suspect information and then afterward compute a match likelihood ratio (LR) statistic from this genotype.
Probabilistic genotypes have been recognized by regulatory bodies such as the Scientific Working Group on DNA Analysis Methods (SWGDAM) in its 2010 "Interpretation guidelines for autosomal STR typing by forensic DNA testing laboratories" and the American National Standards Institute (ANSI) in the 2011 article "Data format for the interchange of fingerprint, facial & other biometric information" as a valid approach to DNA Interpretation and reporting. There are two probabilistic approaches:
(People v. Wakefield, 47 Misc.3d 850, 852–854, 9 N.Y.S.3d 540 [Sup.Ct., Schenectady Co.2015] footnotes omitted).2
The Frye hearing was held on January 11, 14, and 21, 2016. The People's only witness was Dr. John Simich, the Director of the Lab (I–12).3 Dr. Simich testified that he was also the "DNA technical leader" for the Lab, and taught forensic science at SUNY Buffalo at both the graduate and undergraduate levels. Dr. Simich has been conducting DNA analysis since 1993 and the Lab has always used commercial "kits." The "kits" contain "all of the components that are required for the polymerase chain reaction [PCR] process to proceed and to generate the DNA results" (I–21). The Lab has used different kits over the years (I–19). The kits are used to " generate the PCR reaction and to look at the STR [short tandem repeat] genetic markers that are provided in the kit" (I–21). According to Dr. Simich, PCR/STR testing is used in all forensic labs worldwide.
After the PCR/STR process is complete, an instrument called a Genetic Analyzer reads the "various amplified fragments of DNA, and then that translates it into something that a human can see which is the electropherogram" (I–24). Once the Lab generates a DNA profile from the sample, that profile is compared to an individual—victim, suspect, or elimination sample—"to determine if they are the source of that DNA" (I–27). An electropherogram is a print-out of the "graph of the various DNA types that were identified at each of the genetic markers" (I–27). Exclusion can be made by visual comparison of the electropherograms. If there is no exclusion, the Lab needs "to determine the weight of the evidence" (I–28).
The electrophoresis step produces a chart, which gives the value of the DNA marker at a certain point and the "strength" of the signal (a measure of how many of the DNA molecules were examined at a particular value) (I–32). In July 2015, the Lab began using STRmix to make this calculation. STRmix allows the Lab to report the results as a likelihood ratio.4
STRmix uses "continuous probability genotyping" software (I–34). That software uses information that has been available for "years" (I–34). STRmix was recommended by different scientific organizations as "the best way to perform reporting of the weight of the DNA evidence" (I–34). A "continuous" software program like STRmix, according to Dr. Simich, is "more discriminating;" it looks at "all of the information" (I–35).
Dr. Simich testified about various scientific organizations that review the software programs: SWGDAM (Scientific Working Group for DNA Analysis Methods), NIST (National Institute of Standards and Technology), and ISFG (International Society of Forensic Genetics). According to his undisputed testimony, all three have recommended STRmix. STRmix addresses the problem of mixed samples, that is, DNA with more than two contributors. STRmix "is able to break [the DNA sample] down into its component mixtures" (I–38).
Dr. Simich discussed the concept of "probabilistic genotyping,"5 as used in the calculation step of DNA analysis, and testified that the principle "has been around for many years." (I–40). He described the two steps involved in the process: deconvolution and statistical analysis. Deconvolution breaks a mixture "down into the individual contributors and generate[s] DNA profiles for each of them" (I–41). Statistical analysis determines "the likelihood ratio of a person of interest [the Lab] is asked to compare to" (I–41).
Dr. Simich was familiar with some of the mathematical analysis methods and principles used in the deconvolution process, for example, the MCMC (Markov Chain Monte Carlo) model, and the Metropolis–Hastings algorithm. MCMC is a standard statistical modeling process. STRmix also employs Bayes' theorem, which is a general scientific principle of the likelihood ratio. Bayes' theorem was developed in the early 1700s and has been used for centuries in various scientific disciplines without controversy (I–45).
After reviewing the STRmix software, Dr. Simich concluded that the science behind it was generally accepted within the forensic lab community. He further concluded that the software was reliable, based upon his review of peer-reviewed journals (I–48). The creators of STRmix provided Dr. Simich with a report of their internal validation process (I–50). The Lab also conducted its own validation study of STRmix and published a report, which was submitted to the New York State Commission on Forensic Science DNA Subcommittee ("the DNA Subcommittee") (I–54; see People's Exh. 2). The Lab study concluded that STRmix "does reliably deconvolute DNA profiles and provide likelihood ratios that can be used for casework" (I–55). The Lab underwent an external audit by the National Forensic Science Training Center in August 2015, after it had begun using STRmix. The Lab undergoes a regular accreditation process as well as an internal audit (I–25–26).
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