Prater v. State

• Decision Date: 11 November 1991
• Docket Number: No. CR,CR
• Citation: 820 S.W.2d 429,307 Ark. 180
• Parties: , 60 USLW 2393 Louis PRATER, Appellant, v. STATE of Arkansas, Appellee. 91-115.
• Court: Arkansas Supreme Court

Page 429

820 S.W.2d 429

307 Ark. 180, 60 USLW 2393

Louis PRATER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-115.

Supreme Court of Arkansas.

Nov. 11, 1991.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

This case determines our standard for the admissibility of novel scientific evidence and the standard for the admissibility of calculations as to probabilities arising from that novel scientific evidence.

The prosecutrix, a seventeen-year-old girl, was raped in a laundromat in southwest Little Rock. She called the police. They quickly responded and began searching the area for the offender. After only a few minutes, the victim spotted the appellant and identified him as the man who had attacked her. He was arrested. She was taken to the University Hospital where her vagina was swabbed to collect samples of secretions. The swab samples, along with blood samples taken from both the prosecutrix and the appellant, were sent to the laboratory of the Federal Bureau of Investigation (FBI) in Washington, D.C. There, the FBI conducted deoxyribonucleic acid (DNA) print identification tests.

The State gave the appellant notice that, at trial, it would offer evidence to prove that appellant's DNA profile matched that found in the swab samples, and that it would offer evidence that the probability of selecting a person at random from an unrelated black population and getting the same profile was only 1 in 3,700. The appellant objected to the proposed evidence. A preliminary hearing was held, and the trial court ruled that the evidence was admissible. It was then admitted at trial, and the appellant was convicted. This court has taken the case as it involves a case of first impression involving a significant legal issue.

1. THE STANDARD

The majority approach for determining the admissibility of novel scientific evidence continues to be the test enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Under that standard, courts admit novel scientific evidence only when the theory upon which the evidence is based has gained general acceptance within the relevant scientific community. Id. at 1014. This court has never adopted the Frye standard even though we signaled it as "see" in a per curiam opinion. See Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). Several states have rejected the Frye standard. In doing so the Supreme Court of Georgia wrote: "[T]he Frye rule of 'counting heads' in the scientific community is not an appropriate way to determine the admissibility of a scientific procedure.... The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community." Caldwell v. State, 260 Ga. 278, 285-86, 393 S.E.2d 436, 441 (1990).

A growing number of jurisdictions, now numbering about one-third, have adopted a more liberal standard of admissibility. Imwinkelried, The Standard for Admitting Scientific Evidence: A Critique from the Perspective of Juror Psychology, 28 Vill.L.Rev. 554, 557-59 (1983). This more liberal standard, and the one which we adopt, is based upon the relevancy approach of the Uniform Rules of Evidence. The pertinent rules are the following:

A.R.E. Rule 401:

Definition of "relevant evidence ".-- "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. [Emphasis added.]

A.R.E. Rule 402:

Relevant evidence generally admissible--Irrelevant evidence inadmissible.-- All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible. [Emphasis added.]

A.R.E. Rule 702:

Testimony by experts.--If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. [Emphasis added.]

The relevancy approach requires that the trial court conduct a preliminary inquiry which must focus on (1) the reliability of the novel process used to generate the evidence, (2) the possibility that admitting the evidence would overwhelm, confuse or mislead the jury, and (3) the connection between the novel process evidence to be offered and the disputed factual issues in the particular case. See 3 J. Weinstein & M. Berger, Weinstein's Evidence p 702 at 702-18 to 702-20 (1991).

A. RELIABILITY

Under this relevancy approach, reliability is the critical element. See United States v. Downing, 753 F.2d 1224, 1238 (3d Cir.1985) for a list of cases so holding. The relevancy approach, unlike the Frye standard, permits, but does not require, a referendum by the relevant scientific community to determine the reliability of the technique. Many times that factor alone will determine the issue. On the other hand, courts may look to a number of other factors which bear upon reliability. These include the novelty of the new technique, its relationship to more established modes of scientific analysis, the existence of specialized literature dealing with the technique, the qualifications and professional stature of expert witnesses, and the non-judicial uses to which the scientific techniques are put. Andrews v. State, 533 So.2d 841 (Fla.Dist.Ct.App.1988) (citing United States v. Downing, 753 F.2d at 1238-39, and Weinstein & Berger, supra, at p 702 ).

The frequency of erroneous results produced by a novel scientific technique is an important component of reliability. At one extreme, a technique which yields erroneous results more often than correct ones would be of no value to the trier of fact. At the other extreme, a technique which is always correct would be of significant value. In addition to the rate of error, the trial court might examine the type of error which could occur.

Another important component of the reliability of scientific evidence is proof of the use of the correct protocol during the specific test. This proof is fundamental to the question of reliability. To illustrate, we quote from Inwinkelried, The Debate In The DNA Cases Over the Foundation For the Admission of Scientific Evidence: The Importance of Human Error As a Cause of Forensic Misanalysis, 69 Wash.U.L.Q. 19, 25:

When the issue, however, is the trustworthiness of scientific evidence, courts generally cannot dismiss the possibility of error as purely theoretical or minimal. Studies have established impressive evidence of a substantial error margin in contemporary laboratory analysis. In the 1950s the American Academy of Forensic Sciences' Toxicology Section conducted a study of the accuracy of blood alcohol analyses. That study unearthed indications of "a great degree of error." In the mid-1970s, Dinovo and Gottschalk undertook to evaluate the proficiency of laboratories conducting drug analyses. They too reported significant variations in the level of proficiency from laboratory to laboratory.

Later in the same decade the Law Enforcement Assistance Administration funded a much larger test, the Laboratory Proficiency Testing Program. Two hundred and forty laboratories participated. The researchers sent the participating laboratories twenty-one sets of blind samples for analysis. On three of the twenty-one sets, fewer than half the participating laboratories reported correct, complete findings. One of the lead researchers reluctantly concluded that the tests demonstrated that "a disturbingly high percentage of laboratories are not performing routine tests competently...."

In the early 1980s, other researchers administered a proficiency test to 105 toxicology laboratories in forty-nine states. Like the Laboratory Proficiency Testing Program researchers, these researchers found the laboratories' performance "disappointing." They discovered "considerable" variation in proficiency, especially in quantitative analysis. On some samples, the coefficient of variation was 133 percent.

In the mid 1980s, several organizations published proficiency studies of laboratories conducting immunoassay tests to detect the presence of contraband drugs in urine samples. The studies were conducted under the auspices of such respected organizations as the College of American Pathologists. Two researchers for the Office of Technology Assessment of the United States Congress bluntly summarized the studies by generalizing that "error rates continue to be high." A study conducted by the Centers for Disease Control yielded particularly disturbing findings. One laboratory reported erroneous results on 66.5 percent of 160 samples analyzed.

In 1987, Collaborative Testing Services made public the results of a proficiency test of laboratories engaged in electrophoretic analysis of enzymes and proteins. Sixty-eight laboratories participated in the test. Sixteen of the laboratories (23.5%) erred on one or both samples.

More recently, the Forensic Science Foundation released the results of proficiency tests of document examiners. Like the studies described in the preceding paragraphs, these tests disclosed an alarmingly high incidence of misanalysis. The percentages of error were in the double figures. The incidence of error was so high that it "should provide anyone with cause for concern."

In sum, extensive hard evidence exists of a substantial margin of error in modern forensic analysis. When an opposing party points to a brief gap in chain of custody to challenge the trustworthiness of an item of physical evidence, a court plausibly can dismiss the challenge as raising only theoretical risks of error. However, when the challenge is directed at a forensic laboratory analysis, the court cannot reject the...