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State v. Copeland

September 19, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
WILLIAM COPELAND, APPELLANT.



Appeal from Superior Court, King County; 91-1-00662-4. Honorable Larry Jordan, Judge.

As Corrected September 24, 1996. Second Correction November 27, 1996.

Authored by Barbara A. Madsen. Concurring: James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Gerry L. Alexander, Rosselle Pekelis, Philip A. Talmadge, Barbara Durham

The opinion of the court was delivered by: Madsen

EN BANC

MADSEN, J. -- A jury found Defendant William Copeland guilty of first degree premeditated murder and of first degree felony murder predicated on rape in the first or second degree. He raises a number of issues, including admissibility of DNA evidence, alleged destruction of evidence, alleged material omissions from the affidavit in support of a search warrant, alleged violation of the right to counsel under CrR 3.1, and prosecutorial misconduct. His challenge to admissibility of DNA evidence includes claims that admission of expert testimony of statistical probabilities was error because it failed to adequately account for substructuring in human populations, as well as challenges to use of the FBI database for statistical probability estimates. The State argues that the Frye test for admissibility of novel scientific evidence ( Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923)) should be replaced with the test of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

We hold that Frye remains the standard for admissibility of novel scientific evidence in Washington, that the DNA evidence was admissible, and that none of the issues raised by Copeland require reversal of his conviction. We therefore affirm the conviction.

On May 18, 1990, Copeland was released from the King County jail a little after 9 p.m. At the time he had been booked into jail (for an unrelated offense), he was wearing a khaki shirt as shown in his booking photo.

The next day the body of Mary Jo Kizer was discovered by her son when he stopped to check on her at her condominium apartment. She was wearing a terry cloth robe and her body lay in a semi-fetal position just inside her front door. She had bled to death from several stab wounds. She had been beaten in the head, manually strangled, and an earring had been ripped from her ear. She suffered over 70 injuries. Blood spatter evidence indicated she had been attacked on the stairs in her apartment, that she went up to her bedroom where she put her robe on, and then was attacked again near the front door downstairs. She was moved after lying in a pool of her own blood for some time. The position of the body indicated a sexual motive for the assault, and the evidence indicated she had been sexually assaulted after she was attacked with a knife but before she was put in the position she was found in. Just before or after she died, she was stabbed, evidently with a barbecue fork.

During police investigation of the crime, a neighbor, Connie Taff, reported that she had seen a mulatto man walking outside the victim's apartment at 5:30 a.m. and again at 6:00 a.m. the morning of May 19, 1990. She said he was wearing a long-sleeved khaki shirt and blue jeans. The man turned and looked at her as she drove past, and they made eye contact. Detective Winters of the Kent police assisted Taff in making a composite drawing of the man she had seen using an Identi-Kit. The resulting composite looked like Copeland. Police showed the composite to other neighbors, one of whom said the composite looked like the boyfriend of an acquaintance. The acquaintance, Judy Colbert, was contacted, and she identified the composite drawing as Copeland, who had lived with her up to May 1990 when he was asked to leave because he assaulted her.

Later, Taff did not pick a photograph of Copeland out of a photo montage as the man she had seen, but selected a picture of a man who looked like Copeland as most resembling the man she had seen. At trial, she identified Copeland as the man she had seen and testified she was 99 percent certain.

The victim's next door neighbor, Jackie Sawyer, testified to hearing what she thought was a domestic violence fight. She thought she heard a woman being slammed against the wall and crying out. She later heard a dog barking, and looked out her window. She testified she saw a person she thought was a man carrying a small black dog go over the victim's back railing and walk toward the sliding glass doors at the back of the apartment. Sawyer worked with a police artist, and produced a drawing of the person she had seen, which did not look like Copeland. Sawyer said the person she saw was not Copeland. She did not pick a photograph of Copeland out of a photo montage.

Detective Himple interviewed Copeland, who described drinking at several establishments after being released from jail, and then going home. When shown a picture of Ms. Kizer, he recognized her and said he thought her name was Mary, and that he had met her through a friend about two years earlier. After Himple explained they were investigating Ms. Kizer's murder, Copeland said that after drinking he had gone to Colbert's apartment, but found no one home. He said he was given a ride to Colbert's by a waitress he knew. He told Himple he was wearing a dark brown long- sleeved shirt and showed him such a shirt. It was not the one shown in the booking photograph. While they were talking, Elaine Young, Copeland's girlfriend at the time (they later married), walked into the apartment; Detective Himple almost immediately thought she looked like Sawyer's drawing.

Himple returned to Copeland's apartment about three weeks later, and confronted him with the fact a witness placed him outside the victim's door on the morning of the murder. Copeland said that he had walked past the apartment on his way to a restaurant (this version of events contradicted his earlier account). His account placed him within 60 feet of the victim's front door on the morning of the 19th. During this interview, Copeland was asked to give biological samples, but refused. A month later, Himple returned with a search warrant for biological samples. Copeland again refused to give samples, and was handcuffed and taken to the Kent City jail where samples were obtained.

The biological samples were submitted to the FBI for DNA testing, along with that of five other suspects. Copeland's DNA matched DNA from forensic samples, and the FBI calculated the probabilities of his genetic profile randomly occurring in general populations using a method called the "product rule." The probabilities were 1 in 2.8 million using the B5 Black database, 1 in 2.9 million using the older B4 Black database, and 1 in 3 million in the C4 and C5 Caucasian databases. After testing DNA extracted from the forensic sample, the FBI discarded the remainder of the extracted DNA. The FBI preserved a vaginal wash which included sufficient DNA to test.

Following a lengthy pretrial hearing, the trial court ruled that the DNA evidence was admissible under Frye. Following other pretrial hearings, the trial court denied Copeland's motions to suppress evidence based upon alleged material omissions from the affidavit in support of the search warrant, and upon the alleged denial of the CrR 3.1 right to counsel when the search warrant was executed, as well as his motion for dismissal or suppression of the DNA evidence based upon the FBI's failure to preserve the remaining DNA after testing.

At trial the jury heard extensive testimony from both State and defense witnesses about the DNA evidence. In addition to this testimony, which included the FBI's calculated probabilities, plus evidence of the events described above, State's witnesses testified regarding comparisons of Copeland's pubic hair with pubic hair recovered from the victim's body, other blood typing results from samples at the crime scene, blood spatter evidence, non-DNA tests of semen found on Ms. Kizer's robe, and shoe print evidence. Much of this evidence tended to tie Copeland to the crime scene. Fingerprint evidence did not.

Other evidence at trial included testimony of Copeland's cellmates Raymond Counts and Orville Siemering about Copeland's alleged jailhouse confession. Detective Winters testified about use of the Identi-Kit process for generating composites of faces. Copeland also testified in his own defense.

The jury returned a guilty verdict of premeditated first degree murder and felony murder with rape as the predicate felony. The Judge imposed an exceptional sentence of 480 months, finding as an aggravating factor that the crime involved deliberate cruelty to the victim.

Direct review of Copeland's appeal was granted by this court. Frye Standard for Admissibility of Novel Scientific Evidence Copeland maintains the trial court erred in ruling that the DNA evidence was admissible at trial under the Frye test ( Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923)). The State argues that the Frye test should be abandoned, and this court should adopt the analysis for admissibility of scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

This court implicitly adopted the Frye standard for admissibility in State v. Woo, 84 Wash. 2d 472, 527 P.2d 271 (1974), and explicitly approved it in State v. Canaday, 90 Wash. 2d 808, 585 P.2d 1185 (1978). The rationale of the Frye standard, which requires general acceptance in the relevant scientific community, is that expert testimony should be presented to the trier of fact only when the scientific community has accepted the reliability of the underlying principles. Canady 90 Wash. 2d at 813. "In other words, scientists in the field must make the initial determination whether an experimental principle is reliable and accurate." Id. The Frye standard recognizes that "Judges do not have the expertise required to decide whether a challenged scientific theory is correct," and therefore courts "defer this judgment to scientists." State v. Cauthron, 120 Wash. 2d 879, 887, 846 P.2d 502 (1993). The court does not itself assess the reliability of the evidence. Id. at 886 n.2. "If there is a significant dispute between qualified experts as to the validity of scientific evidence, it may not be admitted." Id. at 887.

Review of admissibility under Frye is de novo and involves a mixed question of law and fact. Id. at 887. The reviewing court will undertake a searching review which may extend beyond the record and involve consideration of scientific literature as well as secondary legal authority. Id. at 887-88 (quoting People v. Reilly, 196 Cal. App. 3d 1127, 1134, 242 Cal. Rptr. 496 (1987)). A key reason for consideration of such material is that it is impractical in many instances for a true cross-section of scientists to testify at a hearing. Cauthron, 120 Wash. 2d at 887-88 (quoting Reilly, 196 Cal. App. 3d 1127 at 1134). Moreover, materials that are not available until after a Frye hearing may be considered. Cauthron (where court relied upon scientific report issued after oral argument); see also State v. Bible, 175 Ariz. 549, 858 P.2d 1152, 1189 n.33 (1993) (new technology, evolving at a pace where general acceptance changes from time of trial to time of appellate review, is at core of what Frye designed to scrutinize), cert. denied, 128 L. Ed. 2d 221, 114 S. Ct. 1578 (1994); but see Fishback v. People, 851 P.2d 884, 892 (Colo. 1993).

If the Frye test is satisfied, the trial court must then determine whether expert testimony should be admitted under the two-part test of ER 702, i.e., whether the expert qualifies as an expert, and whether the expert's testimony would be helpful to the trier of fact. Cauthron, 120 Wash. 2d at 889-90.

Proponents of Frye agree that "it assures uniformity in evidentiary rulings, that it shields juries from any tendency to treat novel scientific evidence as infallible, that it avoids complex, expensive, and time-consuming courtroom dramas, and that it insulates the adversary system from novel evidence until a pool of experts is available to evaluate it in court." *fn1 McCormick on Evidence sec. 203, at 873 (John W. Strong ed., 4th ed. 1992). The Frye standard allows "disputes concerning scientific validity to be resolved by the relevant scientific community[.]" State v. Vandebogart, 136 N.H. 365, 616 A.2d 483, 489 (1992) (citing United States v. Addison, 162 U.S. App. D.C. 199, 498 F.2d 741, 743-44 (D.C. Cir. 1974)). "In effect, Frye envisions an evolutionary process leading to the admissibility of scientific evidence. A novel technique must pass through an 'experimental' stage in which it is scrutinized by the scientific community. Only after the technique has been tested successfully in . . . this stage will it receive judicial recognition." Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, Half-Century Later, 80 Colum. L. Rev. 1197, 1205 (1980).

In 1993, the United States Supreme Court decided Daubert, and held that in the federal courts, the legislatively enacted federal rules of evidence, and in particular Fed. R. Evid. 702, supersede Frye's "general acceptance" test. Daubert, 509 U.S. at 597-98. The Court said that under the rules "general acceptance" is not a necessary precondition to admissibility. Id.. Under Rule 702, the requirement that the expert's testimony pertain to "scientific . . . knowledge" assigns to the trial court the task of ensuring that the expert's testimony rests on a reliable foundation and is relevant in that it has a valid scientific connection to the pertinent inquiry as a precondition to admissibility. Id. at 591-92. Under this new analysis, the trial Judge must determine at the outset, under Rule 104(a), whether the expert will be testifying to scientific knowledge which will assist the trier of fact. This will require a preliminary determination whether the reasoning or methodology underlying the testimony is "scientifically valid," and whether it can be applied to the facts at issue.

The inquiry whether a theory or technique is scientific knowledge includes whether it can be (and has been) empirically tested; whether it has been subjected to peer review and publication; the known or potential error rate of a particular scientific technique; and the extent to which there has been general acceptance of the technique or method widespread acceptance by scientists may be an important factor in ruling particular evidence admissible, while a known technique with only minimal support in the scientific community may properly be viewed with skepticism. Daubert, 509 U.S. at 593-94. No proof of a particular degree of acceptance is a necessary condition to admissibility. The court's enumerated factors are not dispositive nor exclusive. Paul C. Giannelli, Daubert: Interpreting the Federal Rules of Evidence, 15 Cardozo L. Rev. 1999, 2002 n.28 (1994) (citing Daubert, 113 S. Ct. at 2796 ("many factors will bear on the inquiry, and we do not presume to set out a definite checklist or test")). The Court said that the Judge assessing a proffer of expert scientific testimony should also consider the other rules of evidence, including Rules 703, 706, and 403. Daubert, 509 U.S. at 595. The Court reasoned that shaky but admissible evidence could be attacked by vigorous cross-examination, presentation of contrary evidence, and careful instructions on the burden of proof. 509 U.S. at 596.

The State maintains that this court should abandon Frye and adopt Daubert. The State argues that Frye is difficult to apply. While Frye may be difficult to apply in some contexts, this is a result of the complexity of the particular science at issue, the extent to which the scientific community has made its views known, and the extent of any dispute in the scientific community. The same, or similar problems, arise under Daubert, including questions of testability, the extent to which the scientific technique or method is accepted by the scientific community, and drawing the line between legitimate science and "junk" science, along with other questions. Questions of admissibility of complex, controversial scientific techniques or methods, like those involving DNA evidence, are going to be difficult under either standard. Nevertheless, the Frye standard has endured for over 70 years, indicating that it has not been so difficult to apply as to call for its abandonment.

The State contends that ER 702 should be construed identically to the Fed. R. Evid. 702. This court has, on some occasions, found the federal interpretation of an identical rule to be persuasive. E.g., State v. Land, 121 Wash. 2d 494, 497-99, 851 P.2d 678 (1993) (concerning ER 608); State v. Terrovona, 105 Wash. 2d 632, 639-41, 716 P.2d 295 (1986) (concerning ER 803(a)(3)). On the other hand, federal case law interpreting a federal rule is not binding on this court even where the rule is identical "this court is the final authority insofar as interpretations of this State's rules is concerned . . . ." State v. Brown, 113 Wash. 2d 520, 548, 782 P.2d 1013, 80 A.L.R.4th 989 (1989), approved on ER 609 issue by State v. Ray, 116 Wash. 2d 531, 544-45, 806 P.2d 1220 (1991). See also Orwick v. City of Seattle, 103 Wash. 2d 249, 692 P.2d 793 (1984) (rejecting federal case law interpreting Fed. R. Civ. P. 12(b)(6)).

We decline to interpret ER 702 as the United States Supreme Court has interpreted Fed. R. Evid. 702. First, while in Daubert, the Court observed that the legislative adoption of the federal rules of evidence postdated and superseded the Frye decision; in Washington the rules of evidence were adopted by this court and do not constitute a legislative enactment superseding Frye. Thus, when this court, after the rules of evidence were adopted, continued to adhere to Frye, e.g., State v. Allery, 101 Wash. 2d 591, 682 P.2d 312 (1984), we signaled that Frye and the evidence rules coexist as the law of this state. Second, as explained in Cauthron, we have already interpreted ER 702 as requiring an assessment of admissibility of scientific evidence under the helpfulness standard contained in the rule, thus providing in this jurisdiction the "best of both worlds." Where novel scientific evidence is at issue, the additional Frye inquiry allows the judiciary to defer to the scientists precisely where to do so recognizes both the need for admissibility of novel scientific evidence where it is sufficiently accepted, and the need to protect against novel scientific evidence which has not even gained general acceptance in the relevant field. The trial court's gatekeeper role under Frye involves by design a conservative approach, requiring careful assessment of the general acceptance of the theory and methodology of novel science, thus helping to ensure, among other things, that "pseudoscience" is kept out of the courtroom. ER 702 has independent force and effect, which we have both recognized and emphasized. This case does not merely present an issue of Frye versus Daubert, because in this state ER 702 has a significant role in admissibility of scientific evidence aside from Frye.

We have been offered no sound reason to depart from our own standards for admissibility of scientific evidence, and we conclude that Daubert has drawbacks which we decline to import into our standards for admissibility. For example, trial Judges are left with a difficult task as scientific, mathematical, and technical lay persons, they must analyze opinions involving matters far beyond their knowledge. When the evidence comes from scientific sources, Judges will be required to understand not only the specific scientific evidence, but also the world of science, since the Supreme Court has now instructed trial Judges to determine, as an admission threshold, whether the evidence is in fact "scientific knowledge." The Court directed Judges that scientific knowledge must be learned through scientific methods, and referred to several books on the philosophy of science that are not likely to be found in courts' libraries. Howard A. Denemark, The Search for "Scientific Knowledge" in Federal Courts in the Post-Frye Era: Refuting the Assertion that "Law Seeks Justice While Science Seeks Truth," 8 High Tech. L.J. 235, 237 (1993) (footnotes omitted); see also Daniel R. Fisher, Daubert v. Merrell Dow Pharmaceuticals: The Supreme Court Gives Federal Judges the Keys to the Gate of Admissibility of Expert Scientific Testimony, 39 S.D. L. Rev. 141, 155 (1994) (district court Judges given responsibility and authority beyond the knowledge and abilities of the court in many cases).

We note that at least two courts have declined to decide whether Daubert should be adopted where DNA evidence was involved, precisely because of the complexity and controversy of the science. State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993), cert. denied, 128 L. Ed. 2d 221, 114 S. Ct. 1578 (1994); State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994). Some commentators have noted the Daubert approach is also problematic where behavioral and social sciences are concerned, for two reasons: Judges may lack the understanding of scientific principles and methodology to evaluate science, including social science, as now required by Daubert, and certain social and behavioral sciences may be inherently inconsistent with Daubert's criteria such as falsifiability (testability) and error rates. James T. Richardson et. al., The Problems of Applying Daubert to Psychological Syndrome Evidence, 79 Judicature 10 (July-Aug. 1995).

While we do not intend this to be an exhaustive critique of Daubert, these problems and potential problems, the advantages of the Frye analysis, and our careful assessment of the requirements for admissibility of scientific evidence in Cauthron, convince us to reject the Daubert analysis and reaffirm our adherence to the Frye standard where novel scientific evidence is concerned. Admissibility of DNA Evidence Initially, Copeland complains that the trial court recited an incorrect formulation of the standard for admissibility under Frye. While the court did not recite the standard set forth in Cauthron (decided after the Frye hearing in this case), the error is of no significance, as we review admissibility under Frye de novo under the correct legal standard.

Copeland argues that the FBI's statistical methods for declaring a "match" and for calculating genetic profile frequency are not generally accepted in the scientific community as is required under Frye. Therefore, he argues, use of those methods in his case to calculate the frequency with which the crime sample of DNA appears in the population is inadmissible evidence. Copeland also raises a number of other challenges to the FBI procedures and population databases.

Human genes, the fundamental units of heredity, are made up of deoxyribonucleic acid (DNA). The DNA molecule consists of a long string of repeating units, nucleotides, in two strands resembling a spiral staircase (a double helix). The nucleotides, which are of just four types, are paired across the two strands in complementary sequence (they will only pair in certain combinations). Except for identical twins, the complete sequence of base pairs in the DNA is unique for every person. Most of human DNA is the same from person to person, but a very small percentage differs from person to person. The differences are polymorphisms, and are the key to DNA typing. One type of polymorphism consists of variations in the length of DNA at specific locations (loci) consisting of short repeating DNA sequences called VNTRs (variable number of tandem repeats). The physical length of the DNA molecule at these loci depends upon the number of short repeating sequences. In the human population there are many versions of the DNA at a specific locus these are called alleles. VNTRs are examined (typed) by the RFLP technique (restriction fragment length polymorphism analysis). If a suspect's blood sample is found to "match" that of a forensic sample, then mathematical and statistical methods are used to estimate the frequency of the genetic profile in major population groups. After Copeland's trial, this court addressed some issues of admissibility of RFLP typing in a criminal case. State v. Cauthron, 120 Wash. 2d 879, 846 P.2d 502 (1993). The court in Cauthron relied considerably upon Conclusions drawn by a "committee of eminent scientists and jurists" (the Committee) which had researched and analyzed the status of forensic DNA typing under the auspices of the National Academy of Sciences. Committee on DNA Technology in Forensic Science, DNA Technology in Forensic Science (National Academy Press 1992) (DNA Technology). The court held that the theory underlying RFLP typing was generally accepted in the relevant scientific community. Cauthron, 120 Wash. 2d at 895-99. The court also held that any remaining questions about the reliability of particular tests should be examined under standards for admissibility of expert testimony, which is within the trial court's discretion. Id. at 898.

The court then addressed admissibility of the statistical evidence. Without introducing any evidence of population statistics or the frequency of genetic profiles, the State's experts testified that defendant Cauthron's DNA "matched" the forensic sample. Id. at 906. This court ruled this testimony was improperly admitted because the jury was not informed of a scientifically valid estimate of the frequency with which matches might occur by chance. Id. at 906-07 (quoting Commonwealth v. Curnin, 409 Mass. 218, 565 N.E.2d 440 (1991)); Ex Parte Perry, 586 So. 2d 242, 254 (Ala. 1991); DNA Technology, at 74); see also Springfield v. State, 860 P.2d 435, 448 (Wyo. 1993); Nelson v. State, 628 A.2d 69, 75-76 (Del. 1993); Taylor v. State, 889 P.2d 319, 337 n.80 (Okla. Crim. App. 1995).

The court unanimously held that the methodology underlying the probability estimates must satisfy the Frye standard. *fn2 The court concluded that the State failed to present any evidence of population statistics supporting its experts' testimony that defendant's DNA "matched" that of the forensic sample. Cauthron, 120 Wash. 2d at 906. The court held that the testimony should not have been admitted, because it did not meet the test for expert testimony, which required satisfaction of the threshold Frye requirements and the 2-part test of ER 702. Id. The court concluded: "Testimony of a match in DNA samples, without the statistical background or probability estimates, is neither based on a generally accepted scientific theory nor helpful to the trier of fact." Id. at 907 (emphasis added).

The court observed, however, that the Committee which prepared DNA Technology set out a method for estimating population frequencies called the ceiling principle and said adoption of the ceiling principle by the Committee indicated sufficient acceptance within the scientific community to satisfy Frye. Id. at 908.

Cauthron thus decided some key issues relevant to Copeland's case. First, the methodology underlying RFLP typing is generally accepted by the scientific community and admissible under Frye. Second, statistical evidence of genetic profile frequency probabilities must be presented to the jury. Third, the methodology underlying the probability estimate must satisfy the Frye standard. Fourth, Cauthron directs that a number of issues raised by the defense are matters of weight and admissibility under ER 702, and not admissibility under Frye, as discussed further below. Finally, Cauthron approved the ceiling principle (modified, or "interim," ceiling principle). *fn3 However, while the court approved the ceiling principle, it has not foreclosed use of other statistical models provided they are accepted in the scientific community. State v. Buckner, 125 Wash. 2d 915, 919, 890 P.2d 460 (1995).

With this background, Copeland's challenges are addressed under the Frye standard for admissibility.

Copeland maintains that use of the "product rule" for calculating genetic profile frequency is not generally accepted in the scientific community. *fn4 Briefly restated, the product rule (or "multiplication rule") as applied in RFLP typing means that the probability of a genetic profile occurring in the population is the product of the probabilities of each individual allele's occurrence in the population. Validity of the rule depends upon whether the individual alleles are actually statistically independent. Cauthron, 120 Wash. 2d at 901 (citing DNA Technology, at 76). Two assumptions underlie use of the product rule when calculating genetic profile frequencies: linkage equilibrium, which means that the alleles at different loci are inherited independent of each other, and Hardy-Weinberg equilibrium, which means that one allele at a locus is not predictive of the other allele at that locus (one allele is inherited from the mother, the other from the father). Hardy-Weinberg equilibrium depends upon an assumption of a large population in which there is random mating. See Cauthron, 120 Wash. 2d at 902; Howard Coleman & Eric Swenson, DNA in the Courtroom: A Trial Watcher's Guide 124 (1994). The Committee reported in 1992 that substantial controversy arose about the adequacy of population databases used to calculate frequency estimates and about the role of racial and ethnic origin in the frequency estimation. DNA Technology, at 74-75, quoted in Cauthron, 120 Wash. 2d at 902-03. Potential problems could result from "genetic drift" resulting in small populations having distinct genetic differences, too small a database, lack of randomness of the samples, and most importantly, lack of a truly mixed population such that each locus is in Hardy-Weinberg equilibrium as well as linkage equilibrium. Id. at 903.

When we decided Cauthron some scientific literature supported the view that there were statistically significant deviations from Hardy-Weinberg equilibrium, indicating the presence of genetically distinct subgroups in Caucasian, black, and Hispanic groups. Cauthron,120 Wash. 2d at 904 (citing, among others, R.C. Lewontin & Daniel L. Hartl, Population Genetics in Forensic DNA Typing, Science, Dec. 20, 1991, at 1745, 1747). However, other literature disputed early Conclusions that the possibility of substructuring in major population groups was statistically significant. E.g., Ranajit Chakraborty & Kenneth K. Kidd, The Utility of DNA Typing in Forensic Work, Science, Dec. 20, 1991, at 1735. A number of courts concluded that in light of the scientific disagreement, there was a lack of general acceptance of use of the product rule to estimate genetic profile frequencies, and accordingly such calculations were not admissible. Cauthron, 120 Wash. 2d at 905 (citing cases).

We concluded in Cauthron that use of product rule for this purpose was not generally accepted because of concerns that substructuring in human populations undercut certain assumptions underlying use of the rule. Our decision was heavily influenced by recognition of the Committee that there was a significant dispute among the scientists. The question here is whether the evidence in this post-Cauthron/Frye hearing, the literature, and the case law from other jurisdictions shows that use of the product rule now has sufficient general acceptance that it is admissible under Frye for calculating statistical frequencies of genetic profiles from RFLP typing results.

State's experts at the Frye hearing in this case included Dr. Bruce Weir, a professor of mathematics, statistics and genetics, Dr. Ranajit Chakraborty, a preeminent expert in statistics and human genetics, with over 20 years of study involving human DNA and genetics, Dr. Richard Gelinas, a molecular biologist, and Dr. Ellen Wijsman, a population geneticist. State's experts did not dispute that substructuring exists, but concluded it is statistically insignificant because empirical studies have shown the databases were nonetheless sufficiently in Hardy-Weinberg equilibrium and linkage equilibrium so that substructuring did not improperly affect calculations using the product rule.

Defense experts, Dr. Laurence Mueller, a population geneticist, and Dr. Seymour Geisser, a statistician, disputed these Conclusions.

The trial court found:

This process of multiplication, known as the "product rule," is valid if each band (or bin) is independent of the others. That the frequencies of independent events may be multiplied to determine the frequency of their simultaneous occurrence is a universally accepted principle of statistics. Although various experts have raised theoretical objections to the use of the product rule with RFLP data, those experts who have analyzed the data agree that there is no evidence of dependence between the alleles, defined as fixed bins, used by the FBI. Indeed, the testimony, published work, and analysis performed in this case by Ranajit Chakraborty, Bruce Weir, and Ellen Wijsman prove that independence between alleles defined as fixed bins is a valid assumption. The defense presented no evidence that the assumption of independence was invalid. (Dr. Mueller's testimony was neither persuasive nor credible.) *fn5 Clerk's Papers at 677-78. Our review is de novo and we are do not defer to the trial court's finding that the product rule is generally accepted. However, we have extensively reviewed the Frye hearing in this case, and we reach the same Conclusion as the trial court did.

Although at one time a significant dispute existed among qualified scientists, from the present vantage point we are able to say that the significant dispute was short-lived. Cauthron was decided while the dispute raged; since that time additional empirical studies have been conducted, the FBI has collected data from around the world, and one of the most vociferous opponents of use of the product rule has joined with an FBI scientist in declaring that the DNA wars are over.

As mentioned, the FBI conducted a world wide study of VNTR frequency data from around the world. Laboratory Div., FBI, U.S. Dep't of Justice, VNTR Population Data: A Worldwide Study (Feb. 1993). The study concluded, at page 2, 1) that there are sufficient population data available to determine whether or not forensically significant differences might occur when using different population databases; 2) that subdivision, either by ethnic group or by U.S. geographic region, within a major population group does not substantially affect forensic estimates of the likelihood of occurrence of a DNA profile; 3) that estimates of the likelihood of occurrence of a DNA profile using major population group databases (e.g., Caucasian, Black, and Hispanic) provide a greater range of frequencies than would estimates from subgroups of a major population category; therefore, the estimate of the likelihood of occurrence of a DNA profile derived by the current practice of employing the multiplication rule and using general population databases for allele frequencies is reliable, valid, and meaningful, without forensically significant consequences; and 4) that the data do not support the need for alternate procedures, such as the ceiling principle approach . . . . Other studies have similarly concluded that differences of allelic distribution is not forensically significant. E.g., Bruce Budowle et. al., The Assessment of Frequency Estimates of Hae III-generated VNTR Profiles in Various Reference Databases, 39 J. of Forensic Sciences 319 (Jan. 1994); Bruce Budowle et. al., Evaluation of Hinf I-generated VNTR Profile Frequencies Determined Using Various Ethnic Databases, 39 J. of Forensic Sciences 988 (July 1994); Shui Tse Chow et. al., The Development of DNA Profiling Database in an HAE III Based RFLP System for Chinese, Malays, and Indians in Singapore, 38 J. of Forensic Sciences 874 (July 1993).

Extensive literature in peer reviewed journals indicates that substructuring does not have much impact on DNA population frequency estimates. See People v. Marlow, 34 Cal. App. 4th 460, 41 Cal. Rptr. 2d 5, 33 (citing a number of articles, including several submitted as exhibits in Copeland's Frye hearing), review granted, 43 Cal. Rptr. 2d 679, 899 P.2d 65 (1995) (California rules provide that once review is granted, an opinion may not be cited as legal authority).

As noted, a former opponent of use of the product rule has changed position. In 1994, Dr. Eric Lander co-authored an article with Bruce Budowle, declaring "the DNA fingerprinting wars are over." Eric S. Lander & Bruce Budowle, DNA Fingerprinting Dispute Laid to Rest, Nature, Oct. 27, 1994, at 735. Dr. Lander's ...


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