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.

13 Responses to “The Army CCA allows DNA evidence where “approximately 1 in 220 unrelated individuals in the general population would be a match””

  1. k fischer says:

    Awesome.  So, how long do you think the 412 appeal by the SVC will take because I would really like to know who else could have left that sample if I were the defense attorney.
    Maybe military courts can revive the bastion of reliability in sexual assault cases that resulted in so many innocent men going to jail:  blood type and hair comparison evidence.  Then, after that, perhaps we should just pour gasoline on the accused and strike a match to them.  If they don’t burn to death, then perhaps they are witches and should be shot immediately.
    Speaking of DNA and innocent men being in jail for rapes they didn’t commit, I just had a DNA case where my Ranger Instructor client was excluded after being confined for 10 weeks because of a mistaken identity by the complaining witness of her rape.  You would think that CPD would have cleared him as a suspect, but the complaining witness was adamant that he raped her, so he remained flagged with the military because he was a suspect.  She actually was raped, but not by him.  Thankfully, he was finally cleared by CPD when they caught the real rapist four months later who ironically was the complaining witnesses Mother’s boyfriend.  His DNA matched the semen from her rape kit taken 7 months before.  Unfortunately for the complaining witness, they caught the actual rapist after he murdered her and dumped her body in the creek.  The question Inquiring minds want to know is whether CPD submitted the unsub’s DNA profile to the FBI when my client was released from his 10 week stint in civilian confinement because it might have matched the rapist/murderer who was paroled in 2003 after spending 9 years in jail for shooting two cops in Ohio.  Read about it here, here, here, and here
    You have to hand it to those civilians who managed to exceed the ineptitude of Ft. Benning CID  When CID does a crappy investigation, an innocent man goes to jail.  The two investigators from Columbus PD on this case managed to jail an innocent man for 10 weeks AND allow the victim to get murdered.

  2. anon says:

    Without thinking or research, ACCA finds MJ MRE 702’s analysis manifestly erroneous; however, doesn’t address MJ’s conclusion of exclusion of evidence under MRE 403.  Realize there is an interlink between 702/403, but should opinion address 403 balancing test?  Just a thought.

  3. Advocaat says:

    The government should be careful in asking for such a mini-trial, not only because it runs the risk of taking the spotlight from where it should be in a rape trial, but also because it gives the accused a chance to obtain a more reliable exculpatory polygraph to rebut it.  This looks like the makings of a great case to revisit Scheffer if DC seizes the initiative.

  4. stewie says:

    It is nice to see the appellate courts recognizing that lack of error rates does not make something unreliable science…because that means false confession science must be good to go in their eyes now since one of the main criticisms of that science is a lack of a known error rate.  The next false confession expert that is denied, one hopes the defense cites that passage in this case.
    A flaw in ACCAs reasoning strikes me in the part where they talk about the probative value of the evidence. They note that the DNA evidence could be probative to the fact that the other men in the house were excluded.  Sure, that’s true, and I think that is a valid purpose for admitting the evidence. But as to the accused and whether he is or is not excluded, it’s irrelevant that others were.  Their argument is that, any evidence the accused is a contributor, however slight, is “highly probative.”  Those two things don’t go together. If evidence is “slight,” it’s probably not “highly probative.”  Taken to it’s extreme, what the court is saying is that even a 1 in 2 ratio would be “highly probative.”
    TL, DR: 1 in 220 is scientifically ridiculous.

  5. Tami a/k/a Princess Leia says:

    I am on the fence on this one.  I agree with ACCA’s conclusion that the weakness of the DNA evidence goes to weight, not admissibility.  On the other hand, given how weak it is, plus it being so complicated, could easily cause confusion, I can’t say the judge’s decision to exclude it was “clearly erroneous.”  
    I don’t know if this “victim” qualified for an SVC.  She’s free to get a lawyer (Guild perhaps) if she wants one.  I probably would’ve advised letting this case go.  Now she’s open to questions about the other guys she had sex with.  Up to 219 others.  And that’s just “unrelated” guys.  Notice that the statistics don’t say anything about “related” guys.

  6. stewie says:

    DNA analysis though Tami is all about percentages and ratios…to be relevant, to be admissible, it has to cross a certain threshold. Because at some point, the weight isn’t just slight, it’s misleading in the other direction. Folks think DNA and they think certainty. The low number of alleles, the drop-out problem, the low ratio, all of that combines to make that evidence not admissible in my book, at least to including the accused.  It might be admissible to exclude the other folks in the house if the DNA testing was more solid for them.
    I think the MJ tracked all of this, and got it right.

  7. Dew_Process says:

    There are many problems with this opinion suggesting perhaps that the Court’s first clause in the first sentence is indeed a truism here.
    The first inkling that something isn’t “right” here is the absence of USACIL? I mean, that’s what they are there for, so why use the Kansas City Crime Lab? The KC lab has had problems in the past relevant here, e.g., “chain-of-custody,” sealing and storage issues as noted HERE,  staffing issues, noted HERE, etc. 
    The logical and legal purpose of using DNA evidence is to do one of two things: either match the DNA to a specific individual, or to exclude someone from the universe of potential matches.  The DNA “results” in this case can do neither, so therefore, how can they be relevant under MRE 401?  To “conclude” that the Accused could “not be excluded” is a nonsensical statement – other than the sample was too small to draw any scientific conclusions – which is after all why DNA testing is done in the first place. Indeed, as the FBI itself states:

    Nuclear DNA (nDNA) is the most discriminating and is typically analyzed in evidence containing body fluids, skin cells, bones, and hairs that have tissue at their root ends. The power of nDNA testing lies in the ability to identify an individual as being the source of the DNA obtained from an evidence item, or by excluding an individual as a contributor to the DNA evidence. LINK

    The FBI also set a minimum standard for DNA “matches” i.e., ” For Forensic STR DNA analysis, the DNA profile consists of one or two alleles at the 13 CODIS Core Loci.” LINK.  Here, they only had enough DNA to be examined at 4 loci – less than 1/3 of the minimum FBI standard – and again, it’s an attempt to make this “relevant” when it is not.  If only one allele at any of the other standard 9 loci is different, then he IS excluded but that data is not available due to the lack of sample size.
    But, like other FBI forensic screw-ups, e.g., hair comparison analysis, bullet-lead comparison analysis, etc., the FBI has had another “Whoops, we goofed” moment recently with DNA comparison statistics – one of the major issues here.  That data is available HERE.
    Strangely, the purported “alleles present statistic” used by the KC Lab people, does not appear to be scientifically recognized by anyone except the 2 people testifying for the government. If you “Google” “alleles present statistic” the only hit that shows up is a link to the opinion in this case. But, the decision here not only does not describe whatever this is, or how it was applied in this case.
    DNA “mixture” cases are equally as problematic – something that the DNA testing here could neither confirm nor refute. LINK.
    Considering the miniscule sample size and thus, inability to examine the 13 CODIS loqi, secondary (or even tertiary) transfer cannot be ruled out, i.e., “cannot be excluded.”  For example, the Accused could have been sitting on a couch, with his hands on it depositing his epithelial cells (containing DNA) on the couch. Then if the complainant’s underwear were placed on that spot on the couch, those cells could easily transfer to the underwear, as Zach appropriately notes above.  Indeed, one can hypothesize that MAJ H went to the bathroom to urinate and like a good guest, lifted up the toilet seat, did his thing, and then put the seat down again depositing his epithelial cells on the seat. There after, if the complainant then sat on that same toilet seat, a reasonable and logical transfer from the seat to her butt to her underwear is quite feasible.
    Lastly, ACCA’s MRE 403 analysis [p. 10-11], leaves much to be desired as it simply ignores the purpose behind 403’s balancing requirement. E.g., ACCA notes that “any evidence that MAJ H is a possible contributor, even to a small degree, would still be highly probative.”  But that’s the problem – there is simply no evidence that he is a possible contributor! It is pure speculation based upon 5 alleles at 4 loqi and why it proves nothing in the context of a DNA “match.”  ACCA then concludes:

    . . . 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.” [p. 11].

    When you are asking the fact-finder to speculate or assume or guess that there’s a “possible match,” without any science or evidence to back up that conclusion, that’s “unfair.”
    There may be no “mini-trial” but there’s a great “probability” of a 3-ring circus — unless the Accused opts for a Bench trial, which will open up another interesting “can of worms.”  Who’s got the popcorn?

  8. Joseph Wilkinson says:

    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.
    This is a variant of the misguided “just because/doesn’t mean” argument we normally see from the other side…and which underlies the “rape shield” rules. A piece of evidence does not have to be conclusive by itself in order to be probative or corroborative.  In this case we have testimony from the accuser that matches the physical evidence.  And the accused is denying all sex instead of claiming consent, so corroborating the sex really is an important part of the case (unlike some, where prosecutors throw in DNA to get the “CSI effect” in a consent case…which is arguably needlessly cumulative). 
    It is a shame that we don’t require corroboration of the “nonconsent” part, and the accuser’s testimony is enough to get you there, but those are the rules.  If only that were reliable 219 times out of 220!
    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.
    1 in 220 is not impressive for DNA evidence…but it beats blood type, which we’ve been admitting for over a century.  The rarest type in the U.S., AB-, is something like 1/166 of the population, but even an O-positive serum result would be admissible.  Other kinds of evidence we’ve always admitted — like eyewitnesses with imperfect memories or motives to lie — are even worse.  Unfortunately, they have done nothing to invalidate the “rape shield” rules and have not made a more thorough inquiry into the accuser admissible.  
    Under the rules we have, it looks to me as if ACCA got it right.

  9. Tami a/k/a Princess Leia says:

    When you put it as eloquently and as simply as Dew Process puts it, then ACCA got it wrong, again. Just like Stellato.

  10. stewie says:

    Couple problems with your analysis Mr. W.
    1. Blood is a lot harder to get on you than DNA. It might seem to be the reverse, but it isn’t. DNA can transfer from not just direct contact, but secondary or as DP notes, tertiary contact.
    2.  4 loci means nothing. It’s not simply the equivalent of saying blood type. You try to do a direct numeric comparison but it doesn’t work that way. As DP notes, the “drop-out science” and those are truly scare quotes are not science anyone else uses, yet it’s REQUIRED here to make even the limited finding here work.  If even one of the other std number of loci showed a mismatch, he would be EXCLUDED aka 0% chance. By your logic, if just one loci were found and there were a 1 in 2 ratio, you’d suggest, well, it’s some evidence so it comes in. You ignore both the manner in which DNA testing is done, and the beyond shaky science done to even get to this finding in the first place.
    3. Panels are a lot less likely to be persuaded by blood type then by a DNA expert saying he’s not excluded but everyone else in the house is.  The danger of the panel being misled by this evidence is much higher than being misled by the same blood type. The CSI Effect works both ways.
    4. Blood type evidence is usually used when we have evidence, actual physical evidence, of a bodily injury serious enough to cause blood lose enough to leave evidence. Unlike rape, which often has no physical evidence, and unlike DNA which can be transferred innocently, blood is a lot less likely to be transferred and when combined with a injury serious enough to cause it to come out of the body, well yeah we tend to use it, and I think logically so despite it being just blood type.
    Of course, these days, we don’t have a ton of cases with just blood type…if we have blood, we can almost always get DNA…which we do, because it’s expected, ironically in this case because of the power of DNA evidence for juries.

  11. Joseph Wilkinson says:

    #1, I haven’t DP’s independent knowledge of how light a touch can deposit this much DNA so as to migrate to the accuser’s underwear…but that wasn’t in front of trial court either, or if it was, it doesn’t appear in the opinion.  If the trial judge had this kind of knowledge, he should’ve extracted it from the witnesses through his own questions.  (Which he might have done; but I don’t see it in the appellate opinion.  In fact with that kind of evidence you might exclude it on pure 403 balancing with no need for a Daubert analysis at all…kind of like low-level gunshot residue for a case on an Army base.  A simple path and a straight one.)  
    #2, Likewise, I don’t see that from reading the appellate opinion.  A conclusion that “4 loci means nothing” isn’t in the quoted testimony from Dr. Krane…if I’m reading it right he says (1) dropout is likely when you have small samples (like this one), and (2) dropout is required for these numbers to be meaningful…points on which the other expert agreed.  (I’d like it better if the opinion had quoted any numerical information on how likely dropout is with a sample this small.  That could certainly change the result.)
    (And I certainly do echo DP’s question about why USACIL wasn’t used.)
    #3, That’s true. 
    #4, Also true, though counteracted somewhat in this case by where this evidence was taken.  Absent something in the record along the lines of what DP says, DNA evidence from her underwear suggests some kind of contact between the accused and it, and with him denying the sex, that is significant though not damning.
    Of course, these days, we don’t have a ton of cases with just blood type…if we have blood, we can almost always get DNA…which we do, because it’s expected, ironically in this case because of the power of DNA evidence for juries.

  12. Phil Cave says:

  13. stewie says:

    1. Just because 1 wasn’t mentioned in the opinion doesn’t mean it wasn’t mentioned at trial. It’s pretty standard practice to talk about, from a defense perspective, that it’s relatively easy to transfer DNA from casual contact. It doesn’t require a cut, or an exchange of bodily fluids. It’s also at this point, while perhaps not quite “common knowledge,” something that’s fairly well known.  That blood requires more than casual contact is also pretty much common knowledge.
    2. Actually is present in the opinion. “Second, similar to the first basis, five points of comparison does not provide much information concerning the other points where Henning’s DNA might not match”  That’s point of that statement, which I’m sure was made in much greater detail at the hearing, is that 4 loci isn’t enough and doesn’t tell you about what could be a single mismatch at one of the other std number of loci.  That number of loci wasn’t picked out of a hat by the FBI/scientific community.  There’s a reason why they require that number for forensic testing stds.
    3. Again, sure IF the std number of loci were found for the DNA in her underwear, one could say that’s pretty clear evidence some contact between them happened that involved his underwear and highly likely it involved his genital region and her body, but the problem is that 4 loci don’t suggest anything. It’s too small a number to do ANYTHING. It doesn’t exclude, it doesn’t include. IOW, when dealing with DNA, too few loci “Unknown” is the only scientifically valid conclusion.  And “unknown” is not evidence.  It does not make a fact more or less likely to be true.
    I think the problem here is that the members of the court aren’t well-versed in this scientific area. Possibly the defense at trial failed to get a full outlaying of the problems, although I find that unlikely. The testing is “rocket science” but the well-worn attack paths from the defense perspective are not. More likely, the court was simply not knowledgeable enough on the science to avoid being persuaded by the government “experts” in this case.
    One hopes that either CAAF takes this up, or the DC at trial double down on their efforts to discredit this “science” from the government experts and the panel doesn’t simply get confused.  Unfortunately, I’ve seen that result once before first-hand despite my best efforts.