lcn dna testing: the need for disclosure susan friedman the legal aid society aba: sixth annual...
TRANSCRIPT
LCN DNA Testing: The Need for Disclosure
Susan Friedman
The Legal Aid Society
ABA: Sixth Annual Prescription for Criminal Justice Forensics
June 5, 2015
LCN Timeline• 2000: Gill, Buckleton, et al., publish on LCN
• 2001: Budowle, et al., publishes paper calling for “consideration and caution”
• 2005: OCME’s LCN validation performed
• 2005: New York DNA Subcommittee approves LCN for casework
and LCN is brought online for in-court criminal casework
• 2008: Megnath hearing commences on admissibility of LCN
• 2008-2010: OCME’s FST validation performed
• 2009: OCME publishes LCN validation paper
• 2010: NY DNA Subcommittee and NY Forensic Commission
approves FST for casework
• 2010: Megnath court issues opinion – finds LCN satisfies Frye standard
• 2011: OCME brings FST online
• 2012: Collins/Peaks admissibility hearing commences
• 2014/5: Collins/Peaks court finds OCME’s LCN testing does not satisfy Frye standard 2
OCME Using CPI or No Stat on Mixtures
People v. Megnath (Queens County 2010)
The court held that the “LCN DNA testing process uses the same procedures as HCN DNA testing;” “the principal difference merely being the number of amplification cycles and the manner in which the scientific data is interpreted when lesser amounts of DNA templates are tested using the LCN DNA method.”
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Collins/Peaks (Kings County 2014)
“I think it is a big temptation and a big mistake in a Frye hearing situation for a judge ultimately to decide which scientific techniques he thinks work. I don’t have the expertise for that and it is not my job in a Frye case to make that decision. It’s my job to see whether or not there is essentially general agreement in the scientific community as to the challenged scientific principles.”
“And I know that there is one opinion from Queens [Megnath] and one opinion from Manhattan, one on High Sensitivity Analysis and one on the FST, which were written after thorough Frye hearings and I have full respect for the judges who disagree with me in those two opinions, but I have to say that I disagree with them and gotta do it the way I think it should be done.”
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Collins/Peaks (continued)
“To have a technique that is so controversial that the community of scientists who are experts in the field can’t agree on it and then to throw it in front of a lay jury and expect them to be able to make sense of it, is just the opposite of what the Frye standard is all about. And so ultimately I had to think that it was inconsistent with Frye to give it to a jury when so many experts in the field don’t think that it is appropriate.”
January 5, 2015 – Holding:
“I will just say that I have evaluated the new information. It does not change my mind as to how many scientists’ noses can be counted in one category or the other, pro or con, the FST or high sensitivity DNA. I note, in particular, the emphasis the People place on the decisions of the subcommittee of the State Science Board that evaluates these things. And I just have to say that while I totally respect the expertise of the individuals involved there, they are only seven or so scientists in varying fields related to DNA analysis, but they are not the universe. If the subcommittee evaluating DNA in Idaho or Arkansas were to rule in favor of the FST or high sensitivity DNA, I would not think that ends the matter. And the fact that the New York subcommittee has ruled the way it has, likewise, in my mind doesn’t end the matter. . . . I just don’t think their version by itself shows the scientific community as a whole is in favor of these DNA procedures.”
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Responding to the Prosecution’s Arguments
Peer Review
Dr. Caragine’s testimony: Question: And then when an article is published in the peer review journal, what does that mean?Answer: It means that your results have been accepted by the sci- [sic] by the your peers, by the scientific community.
Response from defense experts:
• Peer review is open scientific evaluation by appropriate scientific community as a step toward general acceptance or rejection of method
• Publication in peer reviewed journal does not equal exhaustive peer review since all of the data was not submitted to journal
OCME’s LCN Validation Paper
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Auditing Is Not Peer Review
•Auditing is a quality assurance/quality control process• It is aimed at ensuring that a laboratory follows
protocols and standards. It is not primarily aimed at ensuring that the underlying scientific methodology is reliable.
New York DNA Subcommittee
Judge Dwyer, January 5, 2015
SWGDAM Guidelines for STR Enhanced Detection Methods
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SWGDAM’s Position on Enhanced Detection Methods
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General Use
• Comparison with…• Preimplantation Genetic Diagnosis• Next Generation Sequencing• Missing persons work
• Use of LCN in the international community• Crown v. Murdoch (FSS did testing; lab director in Australia contaminated
sample)• ESR including and excluding based on 1 allele in 4 replicates for each of both
cheeks• Sean Hoey• Amanda Knox
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Defense Position: the role of data analysis and the need for transparency
Controversy“Where controversy rages, a court may conclude that no consensus has been reached.” Wesley, supra, at 438.
-As one text put it, “it is fair to say that LCN typing is the subject of great dispute among some of the leading lights of the forensic community.” FAIGMAN, DAVID, JEREMY BLUMENTHAL, EDWARD CHENG, JENNIFER MNOOKIN, ET.AL., MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY (Thomson Reuters 2013-2014 ed.)
-Natasha Gilbert, “Science in Court: DNA’s Identity Crisis,” Nature, Vol.464, p.347-348 (2010) (discussing the “highly charged debate in the scientific and law-enforcement communities about low-copy number analysis”);
-Jason Gilder, Roger Koppl, Irving Kornfield, et. al., “Comments on the Review of Low Copy Number Testing,” Int’l J. Legal Medicine, June 2008, (“Given the acknowledged lack of consensus in interpretation (among other concerns)…it is unlikely that LCN tests based on STR loci will be embraced by crime laboratories in the U.S. or that such results would be deemed admissible if they were challenged”)
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OCME is the only public lab in the country to employ this method
for use in court for criminal cases.
General Use in the United States Cannot be Demonstrated
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(http://www.fbi.gov/about-us/lab/biometric-analysis/dna-nuclear/case-acceptance.pdf)
FBI’s Position on LCN Testing
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FST Validation Example (LCN protocol used)
Negative Control Contamination
• Purpose of negative controls is to establish whether extraneous DNA is present that was not originally in the sample
• OCME-NYC allows up to 9 spurious alleles in the negative controls before contamination is at an unacceptable level
• LCN validation data shows different injections, resulting in different alleles detected in negative controls
• Not generally accepted to have contamination in negative controls
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Dr. Caragine: FST development has fixed problems with statistical weight of LCN results
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FST Validation Example (LCN protocol used)
