State of Maine v. Smith
Opinion
STATE OF MAINE UNIFIED CRIMINAL DOCKET KENNEBEC, ss. AUGUSTA DOCKET NO. CD-CR-15-167
STATE OF MAINE
V. ORDER ON DEFENDANT'S MOTION IN LIMINE
ARNOLD SMITH JR., Defendant
A hearing was conducted on February 3, 2017 with respect to the Defendant's Motion In Limine filed 4/6/16 to exclude certain expert testimony of the State's expert Christine Waterhouse ·(hereinafter "CW") with regard to certain analysis conducted by CW on grounds that "the methodology employed (by CW) is not scientifically reliable ... ", see aforementioned Motion for more details. After conducting the hearing the Court gave counsel until 2/27 /17 to submit post-hearing memoranda. Counsel then requested an extension of time to submit memoranda, and the Court agreed to reset the deadline for 5 / 26 / 17. Unfortunately both counsel ultimately decided not to submit any memoranda and did not notify the Court of their decision until approximately three weeks ago, hence the five month delay between hearing and this Order.
In any event, after the Court has had the opportunity to review its notes taken during the hearing, the transcript of the hearing, and the exhibits admitted into evidence along with pertinent case law, the Court makes the following Findings of Fact and Conclusions of Law upon which the Order set forth below is based:
1. The Defendant is charged with Aggravated Criminal Trespass, Class C, and Unlawful Sexual Contact, Class C, the offenses allegedly occurring on or about 4/18/15 in Vassalboro, Maine.
2. At this hearing State called only one witness, CW, who testified that she has been a forensic DNA analyst at the Maine State Police Crime Office for nearly 10 years. The defense agreed CW is an expert in DNA analysis.
3. CW was provided with a "known sample" of the complainant's DNA and came up with a DNA profile. CW also was provided with a known sample ( (
of the Defendant's DNA and came up with a DNA profile for him as well. (Hearing Transcript at 11, here:inafter "T").
4. CW was also provided with a known sample of the complainant's boyfriend's DNA and subsequently came up with a DNA profile for him as well. (Tat 13).
5. Additionally there was a "swab sample" taken from scratches on the complainant's back that was subsequently analyzed to search for DNA evidence. This swab sample was referred to as "Sample 3Q.A" at the hearing. (T at 11).
6. CW opined that Sample 3Q.A contained DNA from more than one individual. (Tat 16).
7. CW conducted an analysis to determine whether there was present in Sample 3Q.A evidence of DNA from the individuals mentioned above, or as CW testified "(T)hat's how I picture it, is evaluation of the forensic unknown sample and then comparison to your known samples to determine whether or not somebody might be included or excluded as potential donor to that mixture of samples ... " (Tat 32).
8. CW also opined that Sample 3Q.A is consistent with being from three individu als, but she could not say that the sample might not be from more than three people. (T at 32, 50).
9. As the undersigned understands it, the thrust of the defense motion is to suggest that the Combined Probability of Inclusion ("CPI") method to analyze samples of complex DNA mixtures• is not foundationally valid (T at 110) and whose value is questionable at best. Instead, analyzing such mixtures should go forward with the "probabilistic genotyping software" recommended by the defense expert, Professor Keith Inman of Cal State (East Bay). At a minimum, the defense contends that such software is the "superior method" to calculate a complex DNA mixture. (Tat 53). CW argued that analyzing a DNA mixture by using CPI versus using the software espoused by defense counsel is asking a different question with a different answer. (T at 60). CW also opined that the Defendant should be considered as a "potential donor" to the mixture of DNA profiles obtained from the swab samples taken from the back of the complainant. (Tat 76).
11. The Defendant's expert Professor Inman opined that the State's methodology of analyzing Sample 3Q.A resulted in the State being "incapable" of providing "a valid weight to any sort of inclusion" (T at 93), and that it was not reliable "for this profile." (T at 108). Professor Inman, however, acknowledged notwithstanding his dim view of the utility of CPI that "there are lots of crime lab people who would say that CPI is valid." (Tat 117). Moreover, although CPI is not used in Europe, it is the most commonly used method in the
'The term "complex DNA mixtures" was defined at hearing as referring to a sample that has potentially more than two donors or has signs of being degraded or inhibited.
2 Americas, Asia, Africa, and the Middle East to assign the weight of evidence where a probative profile is obtained from an evidentiary sample.> (T at 127). However, Professor Inman was firm in his opinion, shared by various peer reviewed literature, that the CPI is not an appropriate statistic to use when expressing the significance of including an individual as a possible contributor to a complex DNA sample. Defendant's Exhibit 2 at page 4.
12. Expert testimony must "meet a threshold level of reliability" and must (1) be relevant in accordance with M.R. Evid. 401, and (2) assist the trier of fact in understanding the evidence or determining a fact in issue. State v. Maine, 2017 ME 25, 13. Indicia of reliability include: 1) whether any studies tendered in support of the testimony are based on facts similar to those at issue; (2) whether the hypothesis of the testimony has been subject to peer review; (3) whether an expert's conclusion has been tailored to the facts of the case; (4) whether any other experts attest to the reliability of the testimony; (5) the nature of the expert's qualifications; and (6) if a causal relationship is asserted, whether there is a scientific basis for determining that such a relationship exists. Id. 14. The defense in its motion blithely asserts that the use of CPI is a procedure that "is not reliable. CPI is no longer accepted by the scientific community as capable of producing reliable interpretation of complex mixtures. CPI has been debunked in the scientific literature as the appropriate way to interpret complex mixtures, and no current peer-review literature exists to support using CPI on complex mixtures. In short, CPI is an outdated technique for interpreting complex mixtures that has been abandoned by the general scientific community in favor of probalistic genotyping software ("PGS") ... " 15. Such an expansively dim view of the use of the CPI method was not supported by the evidence presented at the hearing. The undersigned invited defense counsel to submit legal precedent for the proposition that use of the CPI method was so unreliable to the extent that such evidence was ruled inadmissible: none was proffered. Nor was a list of states that have abandoned the process.' 16. The admission of expert testimony is governed by M.R. Evid. 702, which provides: "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 ' As the undersigned understands it, the CPI refers to the proportion of a given population that would be expected to be included as a potential contributor to an observed DNA mixture.Is CPI a relaibleI 'Defense counsel stated at the end of this hearing "There are states that have abandoned the process. So I could probably come up with a list ... of areas, states, countries, departments that maybe have abandoned the process. So I don't know if I could find cases." 3 qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." 17.
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