U.S. v. Martinez

• Decision Date: 02 September 1993
• Docket Number: No. 91-1996,91-1996
• Citation: 3 F.3d 1191
• Parties: , 37 Fed. R. Evid. Serv. 863 UNITED STATES of America, Appellee, v. Adrian Paul MARTINEZ, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1191

3 F.3d 1191

62 USLW 2199, 37 Fed. R. Evid. Serv. 863

UNITED STATES of America, Appellee, v. Adrian Paul MARTINEZ, Appellant.

No. 91-1996.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 12, 1992.

Decided Sept. 2, 1993.

Reed A. Rasmussen, Aberdeen, SD, argued, for appellant.

Ted L. McBride, Asst. U.S. Atty., Pierre, SD, argued (Philip N. Hogen, U.S. Atty., on the brief), for appellee.

Before MAGILL, Circuit Judge, HEANEY, Senior Circuit Judge, and LARSON, ^* Senior District Judge.

LARSON, Senior District Judge.

Adrian Paul Martinez was convicted by a jury in the United States District Court for the District of South Dakota ¹ of aggravated sexual abuse and sexual abuse of a minor in violation of 18 U.S.C. Secs. 1153, 2241(a)(1) and 2243. Martinez appeals, challenging three aspects of the court's ruling admitting DNA profiling evidence, the most important of which is the admission of evidence concerning DNA profiling analysis while excluding statistical probability analysis and data. Martinez also challenges the admission of the DNA profiling analysis under criteria previously established by this court and the court's ruling that adequate discovery materials were provided. We affirm the judgment of the district court.

I.

Martinez' conviction arises out of the rape of a fourteen-year-old girl in Little Eagle South Dakota. Martinez, an Indian security guard, lured the girl away from a pow-wow which she was attending and raped her. The girl immediately reported the incident, was examined at the local hospital, and stated that she knew whom the individual was who had attacked her. At trial, the girl positively identified Martinez. Martinez presented the alibi defense that he was sleeping on the hood of a nearby car at the time of the rape. Evidence gathered at the hospital shortly after the occurrence included vaginal swabbing, pants, panties, and blood. These samples were tested by the Federal Bureau of Investigation (FBI) laboratory and semen stains were found on two vaginal swabs, the pants, and the panties. Using the scientific technique DNA (deoxyribonucleic acid) profiling, with the procedure RFLP (restriction fragment length polymorphism), to isolate and analyze the semen, the FBI concluded that only 1 in 2600 American Indians would be expected to produce the identical genetic characteristics as Martinez. The tests conducted on the remaining samples were inconclusive. Further serology tests disclosed blood grouping data consistent with a rapist with blood type "O" and who is an "O" secretor. Martinez, along with 56% of the American Indian population, is type "O" and an "O" secretor.

Special Agent Dwight Adams, of the FBI DNA Analysis Unit, testified at a pretrial hearing, held to determine the admissibility of the DNA evidence. Dr. Adams testified that his qualifications include a Ph.D. in biology from the University of Oklahoma, specialized training and research in the field of DNA profiling, publication on the subject, and membership in the American Academy of Forensic Scientists and the International Electrophoresis Society. Dr. Adams discussed the DNA principle and technology and described the RFLP testing procedure in detail. He further explained the FBI protocol and its attendant quality controls. Last, he discussed the probability statistics and the analysis used in characterizing the instant DNA "match" in mathematical terms.

The district court determined that (1) DNA typing is generally accepted by the scientific community; (2) the testing procedures used in this case are generally accepted as reliable; (3) the FBI protocol was properly followed in this case; and (4) the evidence was not more prejudicial than probative in this case. However, the court also decided that the statistics used to determine the probability of any other individual having the same genetic characteristics as Martinez were more prejudicial than probative under Rule 403 of the Federal Rules of Evidence. For this reason the court admitted the DNA profiling analysis evidence and the results of the testing in this case, but declined to allow the jury to hear the evidence of statistical probability with regard to Martinez. ²

The principal issue in this appeal is Martinez' contention that, upon its decision to withhold the evidence of statistical probability from the jury, the court should have ruled that all of the DNA evidence was inadmissible. There is no question that a DNA "match" (a term of art used in the scientific community to describe positive testing results) means that the DNA testing has shown the person tested to be a potential contributor, but not necessarily the contributor of, in this instance, the semen. It is for this reason that the government argued to the jury that Martinez "fits the profile of the DNA." (Tr.Vol. II at 267.) Martinez insists, however, that the jury could only have been left with the impression that Martinez was the sole person who could have been the source of the semen. Martinez contends that this kind of "fingerprinting" rendered the DNA evidence, in total, more prejudicial than probative.

II.

While the facts of this case are not complicated, the issue of DNA profiling is unsettled and complex. To resolve this issue, we must determine whether and to what extent DNA profiling evidence should be admissible in criminal cases, and what evidentiary standard the trial court should use in assessing the evidence. This issue is one of first impression in this circuit ³ and only the second case to be considered by the federal appellate courts. ⁴

A. DNA Profiling

Before examining the standard of admissibility, we shall outline the process of DNA identification profiling. ⁵ The process of DNA profiling identification involves, broadly speaking, two steps. First, the scientist compares DNA from a known sample with DNA from an unknown source. The DNA is compared at several different points, to see if the DNA pattern in the unknown sample at each specific point matches the DNA pattern in the known sample at each specific point. The scientist will declare a "match" only if all DNA segments compared on the two samples are identical, i.e., show the same pattern, within a certain range of error.

Finding a match is not, however, the end of the procedure. A DNA match merely tells the scientist that the person who contributed the known sample is a potential contributor of the unknown sample. The second step of the DNA identification process then involves a determination of the probability that someone other than the contributor of the known sample could have contributed the unknown sample.

To do this probability analysis, the scientist compares the tested samples against information about the general population. The FBI and other laboratories have done experiments to determine the frequency with which certain DNA patterns appear in different racial and ethnic populations. By reference to these studies, the scientist determines the frequency with which each DNA pattern appearing on the known sample exists in the population from which the known sample comes. After determining this probability for each of the DNA segments tested, the scientist multiplies the probabilities of each of the segments tested to determine the probability that someone in that population would have identical patterns on all the DNA segments tested. For example, if 50% of the population had the pattern the known sample showed at test site A, 50% had the pattern the known sample showed at test site B, 50% had the pattern the known sample showed at test site C, and 50% had the pattern the known sample showed at test site D, the probability that any one member of that population would have all four of those patterns would be .5 X .5 X .5 X .5, or 6.25%. Expert testimony in DNA profiling cases is generally expressed in these terms. For example, the expert will testify that probability studies demonstrate 1 in 2600 American Indians would be expected to produce a matching sample.

DNA profiling is still relatively new as a forensic tool and has been the subject of heated controversy in both the legal and scientific communities. However, it is generally conceded that the principle of DNA profiling is recognized as reliable and that the procedures are not so new or novel as to warrant disagreement. People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985 (N.Y.Sup.Ct.1989) ("clearly established unanimity"). Other commentators have stated There is nothing controversial about the theory underlying DNA typing. Indeed, this theory is so well accepted that its accuracy is unlikely even to be raised as an issue in hearings on the admissibility of the new tests.

Thompson & Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Va.L.Rev. 45, 60 (1989). See also U.S. Congress, Office of Technology Assessment, Genetic Witness: Forensic Uses of DNA Tests 7-8, OTA-BA-438 (Washington, D.C.: U.S. Government Printing Office, July 1990) (stating that DNA profiling is valid and reliable in forensics where procedures are properly performed and analyzed). Nevertheless, beyond the theoretical level, concerns persist over possible error and ambiguity. "The problems arise at two levels: controlling the experimental conditions of the analysis and interpreting the results." McCormick on Evidence Sec. 203 at 900-01 (4th ed. 1992). ⁶ Clearly, the procedures are extraordinarily complex and the rigors of forensic probability calculations cannot be trivialized. Super-impose on these concerns the effect of the evidence in a criminal trial, and the dilemma posed is clear. One commentator has suggested:

[w]henever novel scientific evidence is offered in court, the legal system faces competing concerns. One [sic] one hand, there is a danger that excessive caution will prevent valuable evidence from being admitted in a timely manner. On the other hand, there is a danger that evidence accepted quickly and...