State v. Schwartz, C5-89-460

• Decision Date: 03 November 1989
• Docket Number: No. C5-89-460,C5-89-460
• Citation: 447 N.W.2d 422
• Parties: STATE of Minnesota, Respondent, v. Thomas Robert SCHWARTZ, Appellant.
• Court: Minnesota Supreme Court

Page 422

447 N.W.2d 422

STATE of Minnesota, Respondent, v. Thomas Robert SCHWARTZ, Appellant.

No. C5-89-460.

Supreme Court of Minnesota.

Nov. 3, 1989.

Rehearing Denied Dec. 11, 1989.

Syllabus by the Court

1. The admissibility of emerging scientific evidence is governed by the Frye standard, which is interpreted to require that such evidence be generally accepted as reliable in its particular scientific field.

2. Because forensic DNA typing has gained general acceptance in the scientific community, DNA test results are admissible if performed in accordance with appropriate laboratory standards and controls. In order to ensure a fair trial, the test data and methodology must be available for independent review by the opposing party.

3. The admissibility of statistical probability evidence is limited by the standard set forth in State v. Joon Kyu Kim, 398 N.W.2d 544, 548 (Minn.1987).

Patrick J. Sullivan, Asst. Public Defender, Minneapolis, for appellant.

Thomas L. Johnson, Hennepin County Atty., Steven Redding, Asst. County Atty., Minneapolis, and Hubert H. Humphrey, III, State Atty. Gen., St. Paul, for respondent.

Heard, considered and decided by the court en banc.

OPINION

POPOVICH, Chief Justice.

After granting the state's motion to admit evidence of DNA (deoxyribonucleic acid) testing, the Hennepin County District Court, acting pursuant to Minn.R.Crim.P. 28.03, certified the following questions to the Minnesota Court of Appeals, which in turn certified the questions to this court:

1. In determining the admissibility of emerging scientific testing, is a trial court to rely on the Frye standard of general acceptability in the scientific community or the relevancy approach derived from Rules of Evidence 403 and 702?

2. May evidence of "DNA Fingerprinting" test results be admissible in a criminal proceeding?

3. In determining the extent of admissibility of scientific test results, is a trial court to rely on State v. [Joon Kyu] Kim, 398 N.W.2d 544 (Minn.1987)?

I.

The following facts gave rise to the certified questions. The defendant, Thomas Schwartz, was indicted by a Hennepin County grand jury for murder in the first degree under Minn.Stat. § 609.185 (1988) arising out of the stabbing death of Carrie Coonrod on May 27, 1988, in Minneapolis, Minnesota. The police, acting pursuant to a search warrant, obtained a pair of blood-stained blue jeans from Schwartz's residence. A blood-stained shirt was also found in the vicinity of the murder, which the state asserts belongs to Schwartz.

The Minnesota Bureau of Criminal Apprehension (BCA) performed blood group testing on the jeans, shirt and blood samples from Schwartz and Coonrod. These tests confirmed the blood stains on the jeans and shirt were consistent with Coonrod's blood. The state also sent these samples for DNA testing to Cellmark Diagnostics Corporation (Cellmark), a laboratory licensed in Maryland and Pennsylvania. Cellmark's report of September 27, 1988 concluded:

All bands in the DNA banding pattern obtained from the blood of Carrie Coonrod are contained in the DNA banding pattern obtained from the stain removed from the plaid shirt. The frequency of this DNA banding pattern in the Caucasian population is approximately 1 in 33 billion. Although no definitive conclusion can be reached, it is the opinion of the undersigned that the DNA banding patterns obtained from the stain removed from the blue jeans and the blood of Carrie Coonrod are from the same individual.

The state sought to introduce the results of Cellmark's tests, but Schwartz opposed the motion.

II.

1. Frye Standard.

The traditional test for determining the admissibility of emerging scientific techniques is the so-called Frye test, named for Frye v. United States, 293 F. 1013 (D.C.Cir.1923). In Frye, the court said:

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. We have rephrased the Frye standard to require that experts in the field generally agree that the evidence is reliable and trustworthy. See State v. Mack, 292 N.W.2d 764, 768 (Minn.1980).

The state urges rejection of the Frye standard and adoption of an approach that would treat novel scientific evidence like other expert opinion evidence, admitting it if: a) it assists the trier of fact and there is a reasonable basis for it, Minn.R.Evid. 702 and 703; b) it is relevant under rules 401 and 402; and c) the probative value is not outweighed by its potential for unfair prejudice, rule 403. ¹ See C. McCormick, McCormick on Evidence § 203, at 607-08 (3d ed. 1984). To be admissible, relevant and reliable emerging scientific evidence need not necessarily have first passed muster within its appropriate scientific field, as required by Frye 's general acceptance prong. See, e.g., State v. Hall, 297 N.W.2d 80, 85 (Iowa 1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981). Without this safeguard, we believe an undesired element of subjectivity is possible in evidentiary rulings under the relevancy approach. The Frye standard, on the other hand, facilitates more objective and uniform rulings.

While the relevancy approach has been adopted by several jurisdictions, see, e.g., United States v. Downing, 753 F.2d 1224, 1229-32 (3d Cir.1985); Andrews v. State, 533 So.2d 841, 846-47 (Fla.Dist.Ct.App.1988), cert. denied, 542 So.2d 1332 (Fla.1989); Hall, 297 N.W.2d at 84-85, the Frye standard remains the majority rule. Indeed, we have long applied Frye in determining whether scientific evidence is admissible. See, e.g., State v. Anderson, 379 N.W.2d 70, 79 (Minn.1985) (graphological personality assessment), cert. denied, 476 U.S. 1141, 106 S.Ct. 2248, 90 L.Ed.2d 694 (1986); Mack, 292 N.W.2d at 768 (hypnotically induced testimony); State v. Kolander, 236 Minn. 209, 220, 52 N.W.2d 458, 464 (1952) (lie detector tests). Unconvinced by the state of the need for or the wisdom of overruling these prior decisions, we reaffirm that the admissibility of novel scientific evidence is determined by application of the Frye standard, and we answer the first certified question accordingly. ²

2. Forensic DNA Analysis.

This certified question presents an issue of first impression for this court, and one involving several basic scientific principles.

DNA (deoxyribonucleic acid) is an extremely long, thread-like chain of molecules found in the nucleus of every cell of the body * * *. The DNA chains are tightly coiled up into bodies called "chromosomes," of which humans have twenty-three * * *. No two individuals, except for identical twins, have identical DNA. Within a given person, however, DNA does not vary from cell to cell.

Thompson & Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Virg.L.Rev. 45, 61 & n. 76 (1989). DNA typing is an emerging scientific technique that reveals distinctive patterns in the human genetic material of blood and other body fluids, hair and tissue.

Three commercial laboratories in the United States currently perform DNA analysis: Cellmark (the company that did the testing in this case), ³ Lifecodes Corporation, and Cetus Corporation. Both Cellmark and Lifecodes employ restriction fragment length polymorphism (RFLP) analysis in their DNA testing. RFLP analysis involves the following steps:

1) Extraction: DNA is removed from the specimen and "washed" with an organic solvent.

2) Fragmentation: the extracted DNA chain is then cut into fragments at specific sites by mixing it with a restriction enzyme.

3) Gel electrophoresis: the DNA is placed in a gel to which an electrical current is applied, causing separation of the fragments into bands according to their length.

4) Southern blotting: the DNA bands are transferred to a nylon membrane while retaining the same positions they previously occupied on the gel. The double-stranded bands are then treated with a chemical that causes them to separate into single strands.

5) Hybridization: genetic probes (DNA clones) are applied, which bind to a specific, complementary DNA sequence on the membrane; the excess probe is then washed off.

6) Autoradiograph: the membrane is exposed to an x-ray film and developed so that the DNA banding patterns and their lengths can be visualized. Finally, the autoradiograph is interpreted by comparing the DNA print to another DNA sample to determine if they match based on band length.

See Cobey v. State, 80 Md.App. 31, 559 A.2d 391, 397 (Md.Ct.Spec.App.1989), for a helpful diagram of this process.

It is undisputed that RFLP analysis is routinely performed and generally accepted for research and diagnostic purposes within many scientific disciplines. DNA testing is frequently used for paternity purposes and such evidence has been admitted in civil cases. E.g., In re Baby Girl S., 140 Misc.2d 299, 304, 532 N.Y.S.2d 634, 637 (N.Y.Fam.Ct.1988). Forensic DNA typing is heralded as a significant breakthrough because it promises greater specificity of results and may permit analysis of samples too small to be identified by traditional means, such as ABO blood typing.

After hearing testimony from 12 experts and making extensive findings, the trial court found that forensic DNA typing using RFLP analysis is generally accepted in the scientific community under the Frye standard. Courts in other jurisdictions have reached the same conclusion. E.g., Cobey, 80 Md.App. at 43, 559 A.2d at 398 (affirming trial court's conclusion that DNA "fingerprinting" is generally accepted); People v. Castro, 545 N.Y.S.2d 985, 999 (N.Y.Sup.Ct.1...