People v. Shreck, No. 00SA105.

Docket NºNo. 00SA105.
Citation22 P.3d 68
Case DateApril 23, 2001
CourtSupreme Court of Colorado

22 P.3d 68

In re the PEOPLE of the State of Colorado, Plaintiff,
v.
Michael Eugene SHRECK, Defendant

No. 00SA105.

Supreme Court of Colorado, En Banc.

April 23, 2001.

As Modified May 14, 2001.


22 P.3d 70
Ann B. Tomsic, Special Prosecutor, Arapahoe County District Attorney's Office, Englewood, CO, Attorney for Plaintiff

David Kaplan, Colorado State Public Defender, Steven K. Jacobson, Deputy State Public Defender, Kristin Johnson, Deputy State Public Defender, Boulder, CO, Attorneys for Defendant.

Ken Salazar, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, CO, Attorneys for Amicus Curiae in Support of Plaintiff.

Justice RICE delivered the Opinion of the Court.

The prosecution in this case initiated this original proceeding pursuant to C.A.R. 21, seeking relief from a trial court order granting the defendant's motion to bar DNA evidence. The trial court held that under Frye v. United States, 293 F. 1013, 1014 (D.C.Cir. 1923), the multiplex technique employed by the commercial testing kits used by the Colorado Bureau of Investigation ("CBI") in 1999 was not yet generally accepted at that time by the relevant scientific community. Thus, the trial court ruled that the DNA evidence at issue in this case, which was derived from those kits, was not admissible against the defendant. We issued a rule to show cause why the trial court's order should not be vacated, and the defendant responded.

We now hold that CRE 702, rather than Frye, governs a trial court's determination as to whether scientific or other expert testimony should be admitted. Such an inquiry should focus on the reliability and relevance of the proffered evidence and requires a determination as to (1) the reliability of the scientific principles, (2) the qualifications of the witness, and (3) the usefulness of the testimony to the jury. We also hold that when a trial court applies CRE 702 to determine the reliability of scientific evidence, its inquiry should be broad in nature and consider the totality of the circumstances of each specific case. In doing so, a trial court may consider a wide range of factors pertinent to the case at bar. The factors mentioned in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and by other courts may or may not be pertinent, and thus are not necessary to every CRE 702 inquiry. In light of this liberal inquiry, a trial court should also apply its discretionary authority under CRE 403 to ensure that the probative value of the evidence is not substantially outweighed by unfair prejudice. Finally, we hold that under CRE 702, a trial court must issue specific findings as it applies the CRE 702 and 403 analyses.

We further hold that under CRE 702, the multiplex testing techniques at issue in this case were sufficiently reliable to warrant admission of the DNA evidence derived from their use. Accordingly, we make the rule absolute and direct the trial court to vacate its order barring such evidence.

I. SCIENTIFIC BACKGROUND

We described the scientific principles and techniques underlying DNA typing in Fishback v. People, 851 P.2d 884, 885 (Colo.1993). We now review those principles and techniques in the context of the particular method of DNA typing at issue in this case.

Within the nucleus of each human cell are twenty-three pairs of chromosomes composed of deoxyribonucleic acid ("DNA"), which contains the coded information that

22 P.3d 71
provides the genetic material determining the physical structure and characteristics for each individual. No two individuals, except identical twins, have the same DNA structure. A DNA molecule is shaped like a double helix, which resembles a twisted ladder. The sides of the ladder are composed of phosphate and sugar molecules and the rungs are composed of a pair of organic compounds called bases. Two bases form a single rung called a base pair. The order in which these base pairs appear in the ladder is the genetic code of that individual. There are approximately three billion base pairs in a human being, 99% of which are the same in each person. However, certain sections of DNA vary from person to person. These areas are called polymorphisms. DNA typing concerns the examination of two types of polymorphisms: length and sequence

One method of detecting and measuring length variations is called restriction fragment length polymorphism ("RFLP") analysis. The RFLP procedure isolates DNA in a blood sample so that certain polymorphisms can be located in the DNA. RFLP is a widely accepted and scientifically validated method of testing that has generally been found to be admissible in state and federal courts. United States v. Hicks, 103 F.3d 837, 846-47 (9th Cir.1996); United States v. Chischilly, 30 F.3d 1144, 1153-56 (9th Cir.1994); United States v. Lowe, 954 F.Supp. 401, 416 (D.Mass.1996); Fishback, 851 P.2d at 893.

Polymerase chain reaction ("PCR") is a process by which DNA fragments too small to be suitable for RFLP analysis can be analyzed. Under the PCR process, these DNA fragments are duplicated many times, thus allowing very small samples to be accurately tested. PCR also permits testing in a relatively short time in comparison to prior methods that required the decay of radioactive materials. Finally, unlike RFLP testing, which destroys the sample, PCR processing allows a technician to reproduce and verify test results by creating a larger sample for testing.

The D1S80 test is a hybrid of the PCR and RFLP methods. It detects fragment length polymorphisms once the DNA fragment has been amplified through the PCR procedure.

Another form of PCR testing involves the use of locations on the DNA strand containing short tandem repeats ("STR") of baseline patterns. STR testing reveals length differences between chromosomes on different people with the same base pair sequences. There are thirteen locations at which the number of STRs are known to vary from person to person. Thus, if all thirteen locations of the known and questioned sample are identical, a match is considered to have been made.

When STR loci are amplified through the PCR process separately and run on a separate gel, the system is called "monoplex." Multiplex systems add more than one set of PCR primers to a reaction so as to be able to amplify several loci together and run them simultaneously. Monoplex systems and multiplex systems that amplify and run three loci simultaneously, ("triplex"), have been in use for many years.

The commercial kits used to perform the STR testing at issue in this case were manufactured by Perkins Elmer Biosystems ("PE"). These kits, called AmpFLSTR Profiler Plus ("Profiler Plus") and AmpFLSTR Cofiler ("Cofiler"), employ a combination sixplex and nineplex system that is able to read all thirteen locations at the same time.1 In January 1999, when they were used in this case, the kits were relatively new to the market.

II. FACTS AND PROCEDURAL HISTORY

The defendant in this case has been in and out of jail since 1983. In April 1990, he was on parole and living in the Boulder area when a University of Colorado student was sexually assaulted. Although a rape kit was used on the victim, the crime was never solved. In 1998, the case was reopened and the CBI performed a DNA analysis using

22 P.3d 72
several PCR-based tests on the rape kit samples. A 1991 blood sample from the defendant was analyzed against the rape kit results. The CBI concluded that the probability that the contributor to the rape kit sample was not the defendant was one in 11,000. An analysis of a new blood sample from the defendant revealed identical results

Several months later, the CBI performed more tests on the samples, this time using the Profiler Plus and Cofiler kits. By combining the Profiler Plus and Cofiler results with the earlier tests, the CBI determined that the defendant could not be excluded as a contributor to the rape kit sample. The CBI also determined that the probability that the contributor was not the defendant but a random third person was one in 5.3 quadrillion.2 Based on the DNA results, a positive photo line-up identification by the victim, and the fact that the defendant had been on parole and living in the area at the time of the crime, the defendant was arrested and charged with second degree kidnapping, two counts of sexual assault in the first degree, two counts of criminal attempt to commit murder in the first degree, assault in the second degree, and as a habitual criminal.

The defendant moved to bar the use of the DNA evidence at trial on the grounds that (1) PCR and the PCR-based tests employed in this case were not generally accepted as reliable by the relevant scientific community; (2) STR tests in general and the STR multiplex technique employed by the Profiler Plus and Cofiler kits were not generally accepted; and (3) the methods of collection, preservation and handling of the samples, and the statistical methods used to determine the probability of a match were not generally accepted.

Applying the Frye standard as adopted in Colorado by People v. Anderson, 637 P.2d 354, 358 (Colo.1981), and as explained in Lindsey v. People, 892 P.2d 281, 288-89 (Colo.1995), and Fishback v. People, 851 P.2d 884, 890 (Colo.1993), the trial court held that admissibility of the DNA evidence at issue required a showing that the technologies and methods used were generally accepted in the relevant scientific community. After reviewing the evidence, rulings from other jurisdictions, and scientific commentary and journals, the trial court concluded that PCR and the PCR-based tests used in this case, as well as the handling and statistical methods used, were generally accepted in the scientific community. The court also concluded that although PCR-based STR testing is different from other PCR-based tests, it is generally accepted as to monoplex and triplex applications.

The court, however, ruled...

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170 practice notes
  • State v. Obeta, No. A10–1349.
    • United States
    • Supreme Court of Minnesota (US)
    • March 24, 2011
    ...and consider in its search for the truth.People v. Hampton, 746 P.2d 947, 952 (Colo.1987), abrogated on other grounds by People v. Shreck, 22 P.3d 68, 82 (Colo.2001). Obeta argues that expert testimony on typical rape-victim behaviors is not helpful to the jury because it does not describe ......
  • Lee v. Martinez, No. 27,915.
    • United States
    • New Mexico Supreme Court of New Mexico
    • July 14, 2004
    ...476 P.2d 474 (Alaska 1970); People v. Anderson, 637 P.2d 354 (Colo.1981) (applying Frye, which Colorado abandoned in People v. Shreck, 22 P.3d 68 (Colo.2001)); State v. Porter, [241 Conn. 57] 698 A.2d 739 (Conn.1997); State v. Okumura, [78 Hawai'i 383] 894 P.2d 80 (Haw.1995); People v. Sanc......
  • In re Accutane Litig., A-25 September Term 2017
    • United States
    • United States State Supreme Court (New Jersey)
    • August 1, 2018
    ...but hesitate to embrace the full body of Daubert case law as applied by state 191 A.3d 595 and federal courts. See, e.g., People v. Shreck, 22 P.3d 68, 70 (Colo. 2001) (en banc) (abandoning Frye test and holding that trial court "may consider" Daubert factors); McDaniel v. CSX Transp., 955 ......
  • People v. Dunaway, No. 02SC675.
    • United States
    • Colorado Supreme Court of Colorado
    • April 12, 2004
    ...accident scenarios. Id. On appeal to this court, we upheld the trial court's admission of this testimony. Citing to People v. Shreck, 22 P.3d 68 (Colo.2001), we held that an expert's use of accident scenarios is admissible under C.R.E. Rules 702 and 403 as long as it is used solely to assis......
  • Request a trial to view additional results
171 cases
  • State v. Obeta, No. A10–1349.
    • United States
    • Supreme Court of Minnesota (US)
    • March 24, 2011
    ...and consider in its search for the truth.People v. Hampton, 746 P.2d 947, 952 (Colo.1987), abrogated on other grounds by People v. Shreck, 22 P.3d 68, 82 (Colo.2001). Obeta argues that expert testimony on typical rape-victim behaviors is not helpful to the jury because it does not describe ......
  • Lee v. Martinez, No. 27,915.
    • United States
    • New Mexico Supreme Court of New Mexico
    • July 14, 2004
    ...476 P.2d 474 (Alaska 1970); People v. Anderson, 637 P.2d 354 (Colo.1981) (applying Frye, which Colorado abandoned in People v. Shreck, 22 P.3d 68 (Colo.2001)); State v. Porter, [241 Conn. 57] 698 A.2d 739 (Conn.1997); State v. Okumura, [78 Hawai'i 383] 894 P.2d 80 (Haw.1995); People v. Sanc......
  • In re Accutane Litig., A-25 September Term 2017
    • United States
    • United States State Supreme Court (New Jersey)
    • August 1, 2018
    ...but hesitate to embrace the full body of Daubert case law as applied by state 191 A.3d 595 and federal courts. See, e.g., People v. Shreck, 22 P.3d 68, 70 (Colo. 2001) (en banc) (abandoning Frye test and holding that trial court "may consider" Daubert factors); McDaniel v. CSX Transp., 955 ......
  • People v. Dunaway, No. 02SC675.
    • United States
    • Colorado Supreme Court of Colorado
    • April 12, 2004
    ...accident scenarios. Id. On appeal to this court, we upheld the trial court's admission of this testimony. Citing to People v. Shreck, 22 P.3d 68 (Colo.2001), we held that an expert's use of accident scenarios is admissible under C.R.E. Rules 702 and 403 as long as it is used solely to assis......
  • Request a trial to view additional results

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