DNA Evidence Federal Cases.

Federal DNA testing is done to biological materials, with the most common examples being:

• Blood, saliva, skin cells, perspiration, semen, or other biological material (such as hair or bone fragments).
• DNA testing can accomplish two things:

- It can identify the biological material present in a sample, and

- It can produce a DNA profile for comparison with profiles generated from known samples taken from the defendant or other individuals.

If DNA evidence shows the presence of a person at a location, it is essential to keep in mind that this evidence does not prove criminal conduct by itself. Evidence that a person is present is one element in a federal criminal investigation and prosecution, but prosecutors are required to prove every criminal element beyond a reasonable doubt.

At trial, analysts can use federal DNA reports as exhibits to support their testimony. Additionally, they may introduce other documents from the laboratory, such as:

• Sample and analysis request forms,
• Documentation of the analysis steps taken,
• Documentation of equipment calibrations,
• Documentation showing how the analyst was qualified to perform the DNA tests, and
• Documentation of the analyst’s proficiency test results.

These are just examples. The scope of evidence the prosecution can introduce in federal DNA cases is extremely broad. While the prosecution must meet its burden of proof, federal prosecutors often introduce reports, documents, and other evidence that, while accurate, are still open to question in light of the nature of the evidence itself.

When can a federal court rely on a DNA expert’s method and statistics?

When presenting DNA evidence to a federal jury, the evidence must comply with Federal Rule of Evidence 702. Rule 702 requires the proponent to show, by a preponderance of the evidence, that a DNA expert’s testimony:

• Is supported by sufficient facts, data, and the expert’s reliable application of these to the facts in question;
• Is based on sufficient facts or data;
• Is the product of reliable principles and methods;
• And, has been reliably applied to the facts of the case at hand.

What are some red flags in a federal DNA case?

When a federal judge is weighing whether to admit DNA evidence at trial, the defense may have concerns about whether the expert’s testimony will meet the Rule 702 requirements. The way DNA evidence is presented, analyzed, and interpreted can raise several red flags, and any federal DNA defense attorney should be closely examining their client’s case for these possibilities.

Some red flags may include:

• Exaggerated presentation of the significance of DNA associations.
• The DNA analyst does not have sufficient qualifications to conduct the testing and/or testify at trial.
• Failure to present evidence that has passed scientific scrutiny.
• The DNA analysis is not consistent with current scientific principles.
• The defense is not given adequate access to DNA testing data for independent verification.
• A DNA profile is presented in evidence but did not meet the lab’s cut-off threshold for quality.
• The DNA analyst’s testimony is not sufficiently tied to a specific person or event.
• Experts rely on reports from the National Academy of Sciences or the President’s Council of Advisors on Science and Technology (PCAST) that condemn the quality of forensic examinations.

Why can’t the NAS and PCAST report conclusions be trusted?

Why doesn’t the NAS or PCAST report necessarily mean that the DNA evidence in a federal case is unreliable?

How do mixed, low-template, degraded, or mishandled samples change the analysis?

Mixed-DNA Interpretation

Mixed-DNA refers to a DNA profile developed from a sample consisting of DNA from two or more contributors. While it is generally understood that DNA analysts can identify and evaluate individual contributors by breaking down each DNA profile, this interpretation can be wrong. A mixed-DNA interpretation may lead to an incorrect attribution of source, and it is often why the DNA evidence is challenged at trial.

Low-Template DNA Testing

Low-template DNA testing is the process of using DNA testing techniques to generate a profile from biological material that is very small in quantity. These samples can present several opportunities for errors; but even in cases of source-attribution errors alone, these cases raise numerous red flags.

Sensitive DNA Testing

More sensitive DNA testing can increase the opportunities for interpretation and attribution mistakes as well. A sensitive DNA test might increase the likelihood of finding the sample of a contributor; but it might also increase the likelihood that a misidentified contributor is credited.

Sample Integrity, Degradation, and Mishandling

Finally, there is always the potential for contamination, degradation, mishandling, or lab errors affecting the DNA sample. The reliability of the final result relies on the sample’s integrity from collection to analysis, and, while strict quality control measures are in place, these measures can still be compromised.

Analyst Bias

Similar to other laboratory analyses, DNA testing results can be influenced by an analyst’s bias as well. Whether from the pressure to deliver a particular result or from a belief that a defendant is guilty, analyst bias can impact interpretation of DNA and other forensic evidence in federal cases.

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Which laboratory records, custody checks, and independent reviews can expose a flawed result?

When defending a client’s case, determining whether DNA evidence is reliable requires going deeper than the final DNA report. Complete discovery is essential, because it is only with complete discovery that a jury (and a defense attorney) can determine whether the DNA analysis method was applied correctly in the client’s case. When the analysis method is known, the next question is the one the analyst’s notes and other lab records can help answer: what were the circumstances under which that method was used, and were those circumstances consistent with a reliable analysis?

Additional records that can assist a DNA defense lawyer with uncovering the truth include:

• Analyst notes, bench records, and a copy of the protocols followed for the DNA testing in question,
• The analyst’s proficiency testing records,
• Quality audits and inspection reports from the laboratory,
• And, the laboratory’s accreditation files.

Many of these records, such as proficiency reports, can be deceptive when read in isolation. For example, a pass-fail proficiency report indicates that the analyst successfully identified DNA in a test sample, but this alone can fail to reveal administrative or technical errors. In many cases, it is necessary to conduct an analyst interview and/or review documentation onsite to uncover what went wrong during the testing process.

Another key document is the chain of custody record, which can reveal issues with sample collection, storage, testing, and evidence preservation. The chain of custody record is a chronological document showing who had custody of the evidence sample, the date and time it was transferred to another person, the place where it was stored, and any testing that was performed. In federal DNA cases, any gap in the chain of custody can expose opportunities for tampering or contamination, potentially leading to a motion to exclude the evidence.

What constitutional protections and proof limits still apply when DNA is central?

If DNA evidence is obtained through an unlawful search, it can be excluded from evidence. Even if the DNA evidence is a “smoking gun,” the federal prosecution must still prove every element of its case beyond a reasonable doubt.

Fourth Amendment Protections

The Fourth Amendment protects you and others against unreasonable searches and seizures. However, a “reasonable” search is not necessarily a lawful search, and you can challenge how the government obtained your DNA sample, and, in some cases, the results of the federal DNA test, even if DNA evidence is used as evidence of a federal crime.

Fifth Amendment Protections

The Fifth Amendment includes several protections against self-incrimination during federal investigations and prosecutions. The Fifth Amendment generally does not bar the use of a compelled DNA sample because obtaining and analyzing physical DNA evidence is ordinarily non-testimonial; challenges to the manner of obtaining the sample generally arise under the Fourth Amendment.

Sixth Amendment Protections

The Sixth Amendment entitles individuals to a right to counsel in all criminal prosecutions. This includes a right to counsel during adversarial criminal proceedings, and, after the right has attached, the government generally may not deliberately elicit incriminating statements about the charged offense from the defendant without counsel present or a valid waiver.

Sixth Amendment and Testing in Evidence

The Sixth Amendment also includes an right to present a defense in federal criminal cases. In some cases, federal judges have ruled that a DNA testing expert is essential for establishing a reasonable doubt defense and have ordered the government to pay for the expert. With this finding, courts have also, on occasion, granted payment for independent DNA testing when it is necessary to establish a reasonable doubt defense. However, courts are not automatically required to fund independent DNA testing or a defense DNA analyst; under § 3006A(e), funding depends on financial eligibility and necessity.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028 to speak with our team.