The Army CCA allows DNA evidence where “approximately 1 in 220 unrelated individuals in the general population would be a match”
In a Government interlocutory appeal in United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015) (link to slip op.), a three-judge panel of the Army CCA reverses a military judge’s ruling that suppressed DNA evidence in a sexual assault case. Specifically:
The alleged victim, SLN, reported that appellee raped her. [The appellee] denied any and all sexual contact with SLN. Genetic material was recovered from the underwear SLN wore the evening in question. The Kansas City Police Crime Laboratory (KCPCL) conducted deoxyribonucleic acid (DNA) testing on that genetic material. After testing and analysis, the KCPCL reported that [the appellee] could not be excluded as a potential minor contributor to the tested sample. Furthermore, the KCPCL is of the opinion that approximately 1 in 220 unrelated individuals in the general population would be a match to the minor contributor’s profile. [The appellee] was charged with the rape of, and other sexual crimes against, SLN.
Slip op. at 1-2. Additional notable facts include that the genetic material tested was “an exceedingly small quantity,” slip op. at 5, and that “according to KCPCL, the two other males present in SLN’s home on the night in question were both excluded after comparison to the DNA profile.” Slip op. at 2 n.3.
The defense moved to suppress any evidence about the DNA analysis on the basis that it “does not meet the requirements for expert testimony established by Military Rule of Evidence 702.” Slip op. at 2 (marks omitted). The military judge granted the motion, concluding in part that the formula that the laboratory used to draw conclusions about the DNA was not reliable, that the ensuing battle of the experts would create a trial-within-a-trial, and that:
9. “Using the 1 in 220 statistic, in a population as small as Weston, Missouri [the location of the alleged assault –ZDS] (1,641 in the 2010 census (citation omitted)), only 7 people could be contributors to the genetic material in Mrs. [SLN]’s underwear.”
10. Because the “Government is sure to point out that of those seven possible people, only one was in Mrs. [SLN]’s house, . . . the probative value is substantially outweighed by the danger of unfair prejudice, misleading the panel members, and waste of time.”
Slip op. at 6 (quoting military judge’s ruling) (all marks other than my notation are in original).
The Government appealed and the CCA reverses by concluding that some of the judge’s findings of fact (regarding the procedure used by the laboratory) were clearly erroneous and also that his conclusions of law were erroneous.
The CCA’s opinion might reach the right result, however it will likely have unintended consequences that will fuel some (unfair) criticisms of the military justice system.
One conclusion of law by the military judge that the CCA finds erroneous is the conclusion that “the government had not shown the statistical evaluation applied by the KCPCL in this case to be ‘reliable.’” Slip op. at 8. The military judge’s conclusion was based in part on a defense expert witness’ testimony that for this DNA evidence “it’s simply safest to walk away and say that we don’t care to draw a conclusion at all.” Slip op. at 4. But the CCA is more cautious with the defense expert’s testimony:
Dr. Krane did not testify that no conclusions could be drawn from the minor profile; he testified it would be “safer” to not draw any conclusions from such a profile. Our superior court has addressed a scenario where experts in the field differ in their interpretation of the underlying facts and how much weight, if any, should be given to those facts in deriving an opinion. See Sanchez, 65 M.J. at 151. In that case, it is made clear that any requirement that experts agree on a certain interpretation “would be at odds with the liberal admissibility standards of the federal [and military] rules and the express teachings of Daubert.” Id. at 152 (quoting Amorgianos v. Amtrak, 303 F.3d 256, 267 (2d. Cir. 2002)).
Slip op. at 9. The CCA concludes that “at worst, the KCPCL’s approach was shaky science; it was definitely not junk science and should not be excluded.” Slip op. at 9 (emphasis in original).
The CCA also faults the military judge’s M.R.E. 403 balancing “in which he found the probative value of the KCPCL’s ‘statistical conclusion’ is ‘substantially outweighed by the danger of unfair prejudice, misleading the panel members, and waste of time.’” Slip op. at 10. The CCA rejects this conclusion for three reasons:
First, the CCA finds the evidence to be highly probative because while “the importance of the numerical ratio may be relatively minimal . . . in light of the categorical exclusion of other potential suspects, any evidence that [the appellee] is a possible contributor, even to a small degree, would still be highly probative.” Slip op. at 10.
Next, the CCA concludes that “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Slip op. at 10-11 (quoting Daubert, 509 U.S. at 596). Accordingly, the risk of a trial-within-a-trial does not warrant suppression.
Finally, the CCA notes that:
Third, inconsistent with his prior conclusion that the probative value of the KCPCL’s “resulting statistical conclusion” is minimal, the military judge then applied the 1 in 220 ratio against the population of the city where the alleged crime occurred and concluded that his calculation that only seven people in that city could be contributors is a significant and unfairly prejudicial statistic. The military judge observed, “The Government is sure to point out that of those seven possible people, only one was in Mrs. [SLN]’s house.” In this case, we find that evidence that an accused’s DNA possibly matches that of genetic material found at the scene of the alleged crime to indeed be prejudicial, but not even remotely unfairly so. Once a proper foundation is laid, not only is DNA testing sufficiently reliable and admissible, but evidence of statistical probabilities of an alleged match is admissible as well. See United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006).
Slip op. at 11.
The mere fact that genetic material that might match the appellee was found in the undergarments of the alleged victim does not mean that the appellee sexually assaulted the alleged victim on the night in question. The genetic material might have come from a different time and place – possibly one very far removed from the alleged assault. The CCA doesn’t seem to acknowledge this, and it puts what I think is excessive weight into the fact that the other men present at the time of the alleged assault were excluded as the source while the appellee was not excluded. The three men present at the time of the alleged assault are not the only possible sources of genetic material on the alleged victim’s underwear.
Further, considering the 1-in-220 chance that the genetic material could be a match for any individual in the general population, the CCA’s decision seems to open the door wide to a defense investigation into the general sexual history of the alleged victim in order to determine who else might have deposited the genetic material. With the small quantity of genetic material at issue and the possibility of transference from a different garment, that defense investigation could be incredibly broad.
There have been many recent (and unfair, I think) criticisms that the military fails to protect sexual assault victims from intrusive and disrespectful cross-examination about their sexual histories. This case will likely draw similar criticism as the defense seeks to identify the real source of the genetic material in the alleged victim’s underwear (considering the appellee’s denial of any sexual contact).
Of course, the courts (trial or appellate) shouldn’t make decisions based on the fear of criticism. Rather, any criticism needs to be considered in the proper context.