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Dealing with DNA: A Primer for Lawyers
Christine Funk, Esquire

PART 1

I. Introduction

A few months ago I got a call from an attorney in another state who was going to be arguing a DNA case in front of her Court of Appeals the next day. She was wondering if I could point her in the right direction. This is my second most frustrating phone call. The absolute most frustrating phone call, which I’ve gotten more than once, is the one that sounds like this: “The lab scientist is testifying this afternoon. Can you fax me the questions?”

Dear defense bar, while some lab scientists are willing to write up questions for prosecutors to ask on direct, there is no corollary for the defense. It’s like calling and saying, “I have a constitutional issue. Can you fax me the questions?”

That said, DNA isn’t hard, it’s just a very big topic. One that even after 13 years of handling DNA cases, is still presenting interesting and new issues in my practice. So where does one start? This article seeks to offer attorneys – both prosecution and defense – with a manageable starting point. It’s not the end point, of course, but should provide you with a road map to assist you in beginning.

II. Before the Beginning

Speaking of starting, start early. I cannot stress this enough. You will not get up to speed the day before trial. It is unlikely that you will be able to locate a competent expert even a month before trial. Your expert will need time to review the evidence – and will likely, upon review, tell you of other documents they’d like to review that you haven’t yet received. Further, if you decide to call the expert at trial, there are more likely to be scheduling conflicts the closer you are to trial. Finally on this topic, it doesn’t matter how smart you are or how much you think you have an open and shut case, it’s going to take a while to get up to speed on this topic. Give yourself the gift of time. Now let’s begin!

III. Read the Report

I’ll say that again. Read the report. Seriously. Earl Washington, Jr. spent 17 ½ years in prison on a rape and murder he didn’t commit. Back in those days, they were still relying on serology testing. The sperm on the blanket tested ABO – A and PGM 1. Now before you decide you don’t know what that means and stop reading, let me tell you that Earl Washington’s ABO type was O and his PGM type was 2-1. Notice those two types don’t match. In other words, they didn’t come from the same source. Neither the prosecutor nor the defense attorney mentioned this to the jury at trial. Ouch.

IV. Consider the Significance of the Report

Take some time to really think about the significance of the report. I once had a prosecutor tell me my client’s DNA profile from sperm cells observed on the knee area of an alleged victim’s blue jeans was proof that he raped her. Wrong. At best, it’s proof that my client’s semen landed on a pair of her jeans (whether they were on or off, I couldn’t tell you. . . ) at some point during the 3 days they stayed together with several other teenage runaways at a flophouse where booze, sex, and marijuana were all in ready supply.

Speaking of the significance of the report, it should go without saying that if the defense to a rape charge is consent, the presence of the defendant’s DNA in the rape kit is really of no consequence. A cigarette butt at the bus stop may put the defendant at the scene, but is hardly a smoking gun. Likewise, the defendant’s DNA in the defendant’s home – even if it’s apparent blood, really isn’t of any consequence. We all have bled in our homes at one time or another.

Did you see how I just said ‘apparent blood?’ Most (but not all) preliminary tests are presumptive. While saliva, vaginal fluid, and blood have presumptive tests, there is no definitive test for any of these. You can get a DNA profile from saliva, blood, skin cells, mucous, semen, sweat, tears, even urine. Because presumptive tests aren’t definitive, you cannot say for certain where the DNA came from. Further, you can’t put date or time stamp on this DNA.

Another thing, when dealing with ‘wearer DNA’ understand the ‘major donor’ may or may not be the ‘major wearer’ of the item of clothing in question. People shed their DNA at different rates, so the amount of DNA present on clothing is not a fair indication of the amount of time the clothing was worn by the person with the matching DNA profile. Nor is it an indication of how recently it was worn by that person.

V. Get the Rest of the File

I can’t tell you how many times I’ve asked the prosecutor for ‘the rest of the file’ only to be told I have everything. The truth is, I have everything the prosecutor has, but that’s not everything. The lab has an extensive file which, in my experience, is not disclosed unless specifically asked for. Ask for it. If this request is denied, ask for it more loudly. This is the information upon which the conclusions are based. You are entitled to review it. I would submit you are committing malpractice if you don’t review it. Not obtaining and reviewing the file is tantamount to reading a police officer’s summary of a defendant’s taped confession, but not bothering to watch the tape.

If you are uncertain what to ask for, or if you practice in a jurisdiction where getting discovery is a battle unto itself, hop on the web. Most experts have discovery demands honed after years of experience battling for all the documents. In addition to a detailed list of items requested, there is typically a line demanding ‘everything else pertaining to the file, that has not been specifically requested.’ Several DNA experts have been kind enough to post their discovery demands on the web for you to use without charge. Just make sure to take a moment to assure yourself you are using the appropriate request. The 3 most common types of DNA testing are STR, Y-STR, and mitochondrial DNA testing. Make sure your discovery demand is for the type of DNA testing you actually have in your case.

Once you receive the file, do yourself a really big favor. I have to tell you, if you take nothing more from this article, do this one thing. It’s brilliant. Really. I wish I would have thought of this myself. Instead, I practiced DNA defense for years before I learned this trick. I’m going to make this its own paragraph – it’s that important.

Make a copy of the file and put the original on a shelf.

You’ll thank me later, I promise. Bates stamp the copy of the file, but leave the original clean. This will assist you at trial, as you will have a clean copy of the file, should you wish to introduce any part of the file into evidence or to use as an exhibit. On another note, the Bates stamp will assist you when talking to your expert. If your expert wants to talk to you about the extraction set up, you can simply ask for the Bates stamp page number, rather than engage in insipid conversations that go like this:

Expert: I’d like to talk to you about the extraction set up. Can you go to that page?

You: Ummmmm. . .

Expert: It’s about a third of the way up from the bottom of the stack.

You: Okaaayyyyyyyyy.

Long pause with the sound of you rifling through the file.

You: Is it by the page with a bunch of columns on it?

Expert: No.

You: Where is it in relation to those pages that look like an EKG?

Expert: *soft sigh* Much closer to the back than those pages.

You: Is it near the page that looks like a bingo card, kind of?

With a Bates stamp, your expert can just ask you to turn to page 0036 and you can go from there.

Of course you want to read the rest of the police reports in conjunction with the lab reports. How was the DNA collected? What items were collected? Take a look at police photos of the scene. Do you see any beer bottles? Cigarette butts? A half eaten ham sandwich? All of these are potential sources of DNA profiles. Another concern is contamination. Could contamination of evidence have occurred during collection? You may find this information in the police reports or you may find it in the underlying file from the lab.

VI. Read the File

Oh, yes, I did say that! Read the file. You really can do this. You won’t likely understand all of it your first time through, but you’ll understand more than you might think. For example, imagine if you read the following:

Item 1 is a brown paper bag containing a sweatshirt said to be from the victim, a pair of underwear said to be from the victim, a pair of blue jeans said to be from the defendant, and a pair of underwear, said to be from the defendant.

“A DNA test result which indicates the presence of 2 or more individuals, wherein the victim and the defendant cannot be excluded,” is actually the result you would expect just by virtue of the items being in the same bag. (Now be careful, defense attorneys! Read the WHOLE file! If there are sperm cells microscopically observed in the crotch of the victim’s panties, a ‘wearer DNA’ transfer argument is going to be less persuasive. . .)

In addition to checking the packaging, check ‘time and space issues.’ The lab has forms for every step of the process. Look at when they extracted blood and salvia samples. (This is documented on a form with a catchy title such as “Extraction of Blood/Saliva Samples.”) You can see the case number, the item number, the amount of the sample used, and any additional information. Questioned samples should all be processed before known samples.

Communications matter. You may see notes, either hand written or entered into a system within the laboratory, or an email documenting communications between the scientist and the prosecutor, law enforcement, or amongst scientists. This may give you an idea as to what information the scientist had going into the testing. Could this information bias the examiner? Does it set the scene to limit what the scientist was looking for? Did it dictate what evidence was or was not examined?

Finally, check the work. Locate the defendant’s DNA profile, and compare it to the evidence sample they say matches the defendant. Recall Earl Washington, Jr.? No one looked at his serology test results. (At least, I’d like to believe that the prosecution didn’t proceed to ask for the death penalty when they knew the serology didn’t match. I’d further prefer to believe the defense attorney also was unaware of the non-match, rather than simply fail to point out that inconsistency.)

PART 2 will be published in July, 2009 and contains sections on "Moving Beyond the Case File", "Get an Expert", "The Mary Kay Standard".