CAAF decided the interlocutory Army case of United States v. Henning, 75 M.J. 187, No. 16-0026/AR (CAAFlog case page) (link to slip op.), on Monday, March 21, 2016. Directly reviewing the military judge’s ruling – without considering the opinion of the Army CCA that reversed the judge – CAAF concludes that the military judge did not abuse his discretion when he excluded DNA evidence. CAAF reverses the CCA’s decision, reinstates the military judge’s ruling, and lifts a stay of the trial proceedings.

Chief Judge Erdmann writes for a unanimous court.

The accused is charged with “waking the alleged victim by touching her breast, then wrongfully penetrating her vagina with his tongue before moving her to the floor and allegedly raping her.” Slip op. at 2. The DNA evidence at issue is from genetic material found in the alleged victim’s underwear that matches a sample from the accused but would also match a sample from approximately 1 in 220 unrelated individuals in the general population.

The DNA analysis was performed by the Kansas City Police Crime Laboratory using a modified version of the Scientific Working Group on DNA Analysis Methods (SWGDAM) guidelines. Further, beyond the modified analytical formula, the analysis involved a very small sample of genetic material consisting of “the equivalent to three or four human cells.” Slip op. at 5. According to a defense expert witness, “the slight amount of DNA analyzed was about one-fiftieth the amount recommended for a reliable result.” Slip op. at 4.

The defense challenged the admissibility of the DNA evidence and the military judge concluded that the results were unreliable and suppressed them. However, the Army CCA reversed after 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. CAAF then stayed the trial proceedings and granted review of a single issue:

Whether the Army Court applied the wrong standard of review to this Article 62, UCMJ, appeal when it found the military judge made erroneous findings of fact and erroneous conclusions of law.

Chief Judge Erdmann’s opinion for the unanimous court makes two key holdings.

First, despite the wording of the granted issue, Chief Judge Erdmann explains that in an Article 62 appeal CAAF reviews the military judge’s ruling directly, and he notes that “the CCA’s decision and analysis is not relevant to [that] review.” Slip op. at 7 n.13.

Second, considering the record and the military judge’s ruling, Chief Judge Erdmann finds no flaw in either the military judge’s findings of fact or his conclusions of law. Slip op. at 10. However, the court does not go so far as to actually agree with the military judge on the underlying question of reliability:

We do not hold that the KCPCL’s modified formula is unreliable. We only hold it was not an abuse of discretion for the military judge to find the government had not met its burden of showing the formula was reliable in this case.

Slip op. at 11 n.16.

Case Links:
ACCA opinion
Blog post: The Army CCA allows DNA evidence where “approximately 1 in 220 unrelated individuals in the general population would be a match”
• Appellant’s Brief (supplement to the petition for grant of review)
Appellee’s (Government) Brief (answer to the petition)
Blog post: Argument preview
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

6 Responses to “Opinion Analysis: No error in the military judge’s exclusion of a DNA result that would also match a sample from approximately 1 in 220 unrelated individuals in the general population, in United States v. Henning, No. 16-0026/AR”

  1. stewie says:

    “Whew!” said Science.

  2. anon says:

    Defense counsel deserve credit for litigating motion successfully – regardless of number of experts, confident D-counsel needed to bone up on the underlying science prior to witness testimony and motion argument. Irrelevant, but ESPN 30 on 30 for Duke Lacrosse has an excellent account of the defense counsel’s analysis and examination of the government DNA forensic examiner. 

  3. Dew_Process says:

    To add one thing to anon’s point, it is equally as important to educate the MJ in advance as to what the scientific issues are to include a Daubert hearing if necessary. A good Trial Brief can accomplish wonders in such a situation.
     
    Kudos to the Defense Attorneys here!

  4. anon81 says:

    My only real issue with the trial judge’s ruling is that it excludes all evidence of DNA. Regardless of issues whether the DNA matched the Accused, isn’t the fact that DNA analysis was conducted, and some male DNA recovered, relevant to this case?

  5. stewie says:

    anon81, not really.  What fact does it make more or less likely? Some male DNA was recovered, that narrows it down to half the planet…at best I suppose it indicates that she had some sort of physical contact with a male, but that’s it, and that’s not really going to do much to prove any pertinent fact, and even if it’s minimally relevant, I think 403 explains why it shouldn’t be admitted.

  6. anon says:

    As Mr. Spillman noted its also good for all counsel that CAAF clearly stated that they were reviewing the military judge’s ruling and not the decision of the CCA. I believe prior CAAF decisions noted this, but will save counsel some head-scratching in the future.  Anon81, CAAF may have felt similarly re: exclusion of all DNA evidence with/without limiting instructions . . . the standard to overturn the trial court’s decision-making process as gate-keeper under Daubert is extremely high.  Its why briefing/argument/expert testimony at the trial level was so critical to issue. I’ll hazard a guess that the CAAF would have upheld that trial judge’s determination to permit the DNA evidence at trial with similar fact pattern, if the situation was the opposite.