CAAF will hear oral argument in the Army case of United States v. Henning, No. 16-0026/AR (CAAFlog case page), on Tuesday, January 12, 2016, at 9:30 a.m. The case involves a Government appeal of a military judge’s ruling that suppressed DNA evidence in a sexual assault case.

The DNA results included a finding that approximately 1 in 220 unrelated individuals in the general population would be a match. 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.

The Army CCA’s decision (discussed here) includes the following description of the facts of the case:

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 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). But the CCA reversed, concluding in part that “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.” United States v. Henning, No. 20150410, slip op. at 11 (A. Ct. Crim. App. Sep. 3, 2015). The court also explained 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.

CAAF then granted review.

The appellant’s brief asserts that “rather than reviewing the record to determine whether there was evidence to support the military judge’s finding, the Army Court engaged in its own independent analysis.” App. Br. at 13. The appellant’s argument is based on the fact that the powers of the courts of criminal appeals are strictly limited in Article 62 appeals:

In ruling on an appeal under this section, the Court of Criminal Appeals may act only with respect to matters of law, notwithstanding section 866(c) of this title (article 66(c)).

Article 62(b), UCMJ.

However, the Government’s brief takes a more nuanced approach:

In this case, the CCA held the military judge’s ruling was manifestly erroneous because the military judge made two clearly erroneous findings of fact, overstepped his gatekeeping role, and made erroneous legal determinations. Appellant confuses questions of law with questions of fact. Findings of fact are restricted to things, events, deeds, or circumstances that actually exist. However, questions of law are distinguishable and involve a legal effect, consequence, or interpretation.

Gov’t Br. at 13 (marks and notes omitted).

Ultimately, it’s hard to imagine that CAAF will decide this case in a way that denies a CCA the ability to review a military jude’s findings of fact in an interlocutory appeal because such a decision would have serious repercussions (imagine a judge making an indisputably absurd finding). Accordingly, CAAF will likely focus on whether the CCA was sufficiently deferential to the judge’s factual findings about the DNA testing procedure used in this case, and then determine whether those findings were sufficient to support the judge’s legal analysis about the admissibility of the DNA result.

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

4 Responses to “Argument Preview: United States v. Henning, No. 16-0026/AR”

  1. mathlete says:

    The “1 in 220” statistic does not mean that only 7 people in the community could have contributed the DNA.  It means that there’s a 1 in 220 chance that a randomly selected person in the commmunity could have contributed the DNA.  In fact, the possible contributors in the community could be 0, or 7, or 1000. 

  2. Lieber says:

    Right.  I figured out during law school that people who were good at math generally didn’t become lawyers….

  3. Zeke says:

    I wouldn’t be surprised if CAAF chooses not to spend much time in its decision debating whether the CCA was appropriately deferential – CAAF pierces through the CCA and reviews the trial judge’s decision directly on 62 appeals:  “In an Article 62, UCMJ, 10 U.S.C. § 862, petition, this Court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the prevailing party at trial.”  United States v. Wicks, 73 M.J. 93, 98 (C.A.A.F. 2014).  Argument might touch on the CCA’s standard of review, but that doesn’t mean the decision will turn on that point.
    In addition, I think CAAF is going to be very deferential to the trial judge’s job as the gate-keeper especially in cases involving an expert testifying about forensic lab results.  The Court just ruled that the trial judge’s enforcement of MRE 702 is the stand-in they prefer to the alternative of applying a strict Confrontation Clause analysis.  I think CAAF is not going to defang trial judges on this issue after having just rested all of its Confrontation Clause chips on their power.  See Katso, 74 MJ 273, fn 5 (“This case illustrates the gatekeeping role that military judges play, not only to ensure that expert testimony is reliable, but also to evaluate whether an expert’s conclusions rely in part on testimonial hearsay, and, if so, whether the expert undertook sufficient independent analysis to render his own opinions as defined in Blazier II. 69 M.J. at 224-25; cf. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).”)


  4. Zachary D Spilman says:

    You’re absolutely right about piercing the intermediate review, Zeke. It’s a point I highlighted last year in my argument preview in Keefauver, when I noted caselaw that:

    When reviewing a ruling on a motion to suppress, we consider the evidence in the light most favorable to the prevailing party. . . . [W]e pierce the intermediate level of appellate review and examine the military judge’s ruling directly.

    United States v. Baker, 70 M.J. 283, 288 (C.A.A.F. 2011) (citations omitted).

    But look at the granted issue. CAAF didn’t grant to determine whether the military judge erred in suppressing the DNA result. Rather, CAAF granted review to determine whether the CCA applied the appropriate standard of review.