People v. Mohit

• Decision Date: 09 January 1992
• Citation: People v. Mohit, 579 N.Y.S.2d 990, 153 Misc.2d 22 (N.Y. Cty. Ct. 1992)
• Parties: The PEOPLE of the State of New York, v. Morteza MOHIT, Defendant.
• Court: New York County Court

Page 990

579 N.Y.S.2d 990

153 Misc.2d 22

The PEOPLE of the State of New York, v.Morteza MOHIT, Defendant.

Westchester County Court.

Jan. 9, 1992.

Carl A. Vergari, Dist. Atty., Asst. Dist. Atty. Barbara Egenhauser, White Plains, for the People.

Jeanne Mettler, Tarrytown, for defendant.

DONALD N. SILVERMAN, Judge.

The defendant, Dr. Morteza Mohit, an Iranian born physician, was indicted for the rape and sexual abuse of a patient during the course of an office examination.Within a few hours of the incident samples for a sexual assault kit were collected, including a vaginal swab containing semen.The swab, together with blood samples from the victim and the defendant, were sent to the FBI Laboratory in Quantico, Virginia.DNA (deoxyribonucleic acid) was extracted from the semen and the blood samples and comparisons were made to determine whether the defendant's DNA "matched" the DNA extracted from the semen.It was determined that there was a "match."It was also determined that the probability of such a match occurring in the United States was 1 in 67,000,000 for Caucasians, 1 in 79,000,000 for Blacks, and 1 in 14,000,000 for Hispanics.

The defendant moved to exclude from trial the results of the DNA analysis, and a hearing was thereafter conducted to determine its admissibility.

As the use of DNA analysis in criminal cases is relatively new, there are no appellate decisions in the State of New York to provide guidance.In fact there are relatively few cases reported throughout the United States and they reflect a significant variety of opinion.

Standard for Admissibility

New York follows the legal standard of admissibility of scientific evidence originally set forth in Frye v. United States, 293 F. 1013(D.C.Cir., 1923).In this seminal decision, the court held: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define.Somewhere in this twilight zone the evidential force of the principle must be recognized, and while 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.[SeePeople v. Hughes, 59 N.Y.2d 523, 537, 466 N.Y.S.2d 255, 453 N.E.2d 484(1983), People v. Leone, 25 N.Y.2d 511, 307 N.Y.S.2d 430, 255 N.E.2d 696(1969)andPeople v. Allweiss, 48 N.Y.2d 40, 50, 421 N.Y.S.2d 341, 396 N.E.2d 735(1979) ].

It was held in People v. Middleton, 54 N.Y.2d 42, 49, 444 N.Y.S.2d 581, 429 N.E.2d 100(1981) that "the test is not whether a particular procedure is unanimously endorsed by the scientific community but whether it is generally acceptable as reliable."(see also, People v. Smith, 63 N.Y.2d 41, 63, 479 N.Y.S.2d 706, 468 N.E.2d 879(1984)).There, in determining general acceptability of bite mark evidence, the court found that the techniques employed had been accepted and approved by a majority of experts in the field.Seizing upon this language, the Second Department in People v. Bethune, 105 A.D.2d 262, 267, 484 N.Y.S.2d 577(1984), cited a "majority" as establishing general acceptance of reliability.However, "counting heads" to determine a majority view is rarely feasible and can be of dubious value.(SeeAndrews v. State, 533 So.2d 841(Fla.App. 5 Dist.1988), andCaldwell v. State, 260 Ga. 278, 393 S.E.2d 436(1990)).

It seems unlikely that reference to a "majority" in Middleton was meant to establish a "majority" standard or rule.The scientific principles involved in this case were well settled and the decision simply rejected the notion of needing unanimous agreement within the scientific community.Most courts have not addressed what "generally accepted as reliable in the scientific community" actually means.While some degree of disagreement is inevitable, the amount of disagreement which will be tolerated has never been established.(See Gianelli, "The Admissibility of Novel Scientific Evidence; Frye v. United States, a Half-Century Later", 80 Columbia Law Review, 1197 at 1201 (1980)).

It seems clear though, in principle, that if a well respected minority within a given scientific community rejects as unreliable a particular procedure, technique, or theory, the court possesses the authority to agree with that minority view and exclude the evidence offered.

One of the few DNA cases reported in New York, People v. Castro, 144 Misc.2d 956, 959, 545 N.Y.S.2d 985(1989), sets forth a three prong analysis to assist in the determination of the admissibility of DNA evidence:

¹

I.Is there a theory, which is generally accepted in the scientific community, which supports the conclusion that DNA forensic testing can produce reliable results?

II.Are there techniques or experiments that currently exist that are capable of producing reliable results in DNA identification and which are generally accepted in the scientific community?

III.Did the testing laboratory perform the accepted scientific techniques in analyzing the forensic samples in this particular case?Id., at 959, 545 N.Y.S.2d 985.

This analysis, however, says both too much and too little.If, for example, one looks at the second prong and ignores the first, nothing is lost (see footnote 2, infra).In fact, at this point in time there is no serious dispute in the legal or scientific communities concerning the first prong.In Castro an error in the laboratory work left the issue of probability estimates moot, and this issue is the most controversial of all.

The third prong in Castro should go to the weight and not the admissibility of the evidence.If a laboratory uses a protocol which is generally accepted as reliable in the scientific community, errors in following the protocol or interpreting test results can be properly litigated in front of a jury.Once general acceptance in the scientific community is established, there is no benefit in having a Frye hearing on every case which follows.

Several factors should be understood when considering the admissibility of DNA evidence.First, there are a number of laboratories, public and private, which conduct DNA analysis, and their procedures differ.Second, the laboratory work will indicate whether or not there is a "match," but separate and apart from that is the question of calculating the probability of such a match.The laboratory work relies for the most part on principles of molecular biology, and the mathematical probability of a match relies on principles of human genetics and population genetics.

Within a given laboratory, for a number of reasons, procedures or protocols may change over a period of time.Within a given laboratory the sample populations, critical in determining probabilities, may also change over a period of time.

So a problem which remains is that even if we had decisions from the highest appellate courts, while helpful, they would only reflect on a particular laboratory, at a particular moment in time.Any subsequent changes in procedure or in the character of the sample population would invite new challenges.²

The hearings held in this case were extraordinary in that highly qualified experts for both sides were brought in from all parts of the country and they produced about 2,000 pages of testimony.When one considers the costs, in terms of time and money, for both the parties and the court, it is hard to imagine the same kind of process repeated in every DNA case which may arise.Unless there are uniform laboratory standards and procedures established which are deemed acceptable by statute, we will, in each case, in effect, be reinventing the wheel.

Be that as it may, the experience of this case allows this court to suggest the following analysis:

1. does the laboratory in question utilize procedures or protocols which are generally accepted as reliable within the scientific community (here the relevant scientific community being molecular biologists);

2. are the principles utilized by the laboratory in calculating the probability of a match generally accepted as reliable within the scientific community (here the relevant scientific community being population geneticists and human geneticists);

3. if the laboratory procedures are acceptable, but the probability estimates are not, is there a means of quantifying the probability of a match in a manner which would be generally accepted within the relevant scientific community, even if most would consider the estimates to be too high.

The purpose of this last analysis is to attempt to avoid prejudice to either side.If, as will be found in this case, a reliable match is made, but the probabilities attached are not reliable, should the proponent of the evidence be denied its admissibility altogether?Shouldn't the jury know that there was a match and that the possibility of the perpetrator being someone other than the defendant is remote, even if it is difficult to say precisely how remote?If, for example, many in the scientific community would agree that a probability is 1 in 1,000,000, but others reasonably doubting the accuracy of that number, can only agree to 1 in 100,000, shouldn't a jury at least know the more conservative number?The defendant could not reasonably claim prejudice, and the prosecution could still bring important and reliable evidence to a jury's attention.[For other cases on this issue seeCaldwell v. State, supra, where the court reduced a LifeCodes estimate of 1 in 24,000,000 to 1 in 250,000 and Commonwealth v. Curnin, 409 Mass. 218, 565 N.E.2d 440(1991).In Illinois v. Fleming, Nos. 90-CR-2176 and 5546 (Cook Co.Cir.Ct., March 12, 1991), the court rejected the proffered estimates and, refusing to set any other estimates, excluded the DNA evidence since it would have no evidentiary significance].

As will be discussed later in this decision, issues...