SERIES 300 EVIDENCE
F 315.6 NOTES
TABLE OF CONTENTS
F 315.6 Note 1 Admissibility Of DNA Evidence
F 315.6 Note 2 Challenging DNA Evidence
F 315.6 Note 3 Post-Conviction Testing
F 315.6 Note 4 DNA: Improper To Assume Perpetrator’s Ethnicity
F 315.6 Note 5 DNA Genetic Profiles Based On Race Data
F 315.6 Note 6 DNA: Motion And Instruction Package
F 315.6 Note 7 DNA Research Notes
Return to Series 300 Table of Contents.
F 315.6 Note 1 Admissibility Of DNA Evidence
People v. Soto (1999) 21 C4th 512 held that DNA forensic analysis is generally accepted in the scientific community and admissible in a criminal prosecution. DNA evidence from polymerase chain reaction matching technique satisfies the standard for general scientific acceptance and admissibility. (People v. Wright (1998) 62 CA4th 31, 34; regarding DNA, People v. Morganti (1996) 43 CA4th 643, 671 [PCR matching technique satisfied the standard for general scientific acceptance and admissibility stated in People v. Kelly (1976) 17 C3d 24, 30-32 and Frye v. United States (D.C. Cir. 1923) 293 F 1013, 1014]. (See also People v. Venegas (1998) 18 C4th 47; People v. Reeves (2001) 91 CA4th 14, 37-50 [statistical calculations used to support DNA evidence admissible because they are generally accepted in scientific community].) RFLP Methodology for DNA Analysis has reached a general scientific acceptance and the prosecution no longer need prove this in Kelly-Frye hearings. However, the correct scientific procedures must be followed in making statistical probability calculations.
CALJIC NOTE: See FORECITE F 2.80 n8.
F 315.6 Note 2 Challenging DNA Evidence
Michael Burt of the San Francisco Public Defender’s Office, who had a major victory in a challenge to admission of DNA evidence, recommends Tainting Evidence: Inside the Scandals at the FBI Crime Lab, by John F. Kelly and Phillip K. Wearne, as a good introduction to crime lab practices. The book also exposes the potential fallibility of forensic evidence.
Counsel contemplating a challenge to forensic evidence should also be sure to read Kim Kruglick’s article, “A Beginner’s Primer on the Investigation of Forensic Evidence.” This extremely useful article appeared in the most recent edition of California Defender. Mr. Kruglick is sponsor of The Forensic Resource and Criminal Law Search Site www.kruglaw.com.
CALJIC NOTE: See FORECITE F 2.80 n8.
F 315.6 Note 3 Post-Conviction Testing
Due to the powerful potential for exonerating defendants who have been wrongly convicted, post conviction DNA testing should trigger an adjustment in the roles that customarily are played in the adversarial proceedings. (See “Post Conviction DNA Testing: Recommendations for Handling Requests,” by the National Commission on the Future of DNA (9/27/99). This report addresses numerous legal issues including whether a right to DNA testing can be derived from post conviction relief statutes, rules of Brady v. Maryland (1963) 373 US 83 [10 LEd2d 215; 83 SCt 1194] or other sources. The report also suggests an analytical framework for evaluating post conviction requests for DNA testing. [A copy of the report is available to FORECITE subscribers. [Ask for Article Bank # A-76.] The report may also be found at:
www.ojp.usdoj.gov/nij/pubs.aspx
ALERT: As of January 1, 2001, PC 1405 and PC 1417.9 were added concerning motions and procedures for obtaining post-conviction DNA testing and the retention period of biological material obtained. (SB 1342, Ch. 821.)
ALERT: Effective January 1, 2002, PC 1405 and PC 1417.9 were amended to allow an indigent inmate to request appointment of counsel by sending a written request for postconviction DNA testing to the court and requires the court to appoint counsel. (SB 83, Stats. 2001, Ch. 943.)
CALJIC NOTE: See FORECITE F 2.80 n8.
F 315.6 Note 4 DNA: Improper To Assume Perpetrator’s Ethnicity
See People v. Pizarro (2003) 110 CA4th 530 [DNA analysis was flawed by assumption that defendant was perpetrator].
CALJIC NOTE: See FORECITE F 2.80 n8.
F 315.6 Note 5 DNA Genetic Profiles Based On Race Data
See People v. Wilson (2006) 38 C4th 1237 [DNA expert did not assume the race of the perpetrator and defendant were the same].
CALJIC NOTE: See FORECITE F 2.80 n8.
F 315.6 Note 6 DNA: Motion And Instruction Package
See Motion Bank # M-3012 and Instruction Bank # I-868for the motion and instructions regarding DNA.
F 315.6 Note 7 DNA Research Notes
For bibliographical material regarding the admissibility of DNA as evidence, see:
“Staying Dumb About DNA,” by Rock Harmon, The San Francisco Recorder (July 18, 1994) p. 8.
Thompson, William C., “Evaluating The Admissibility Of New Genetic Identification Tests: Lesson From The ‘DNA War’,” (1993) 84 J.Crim.L. & Criminology 22.
“Admissibility Rift Clouds DNA Use In Simpson Trial,” by Bill Kisliuk, The San Francisco Recorder (June 24, 1994) p. 1.
“Ninth Circuit OKs DNA Evidence At Criminal Trials,” by Bill Kisliuk, The San Francisco Recorder (July 26, 1994) p. 1.
Ian W. Evett & Bruce S. Weir, Interpreting DNA Evidence: Statistical Genetics for Forensic Scientists (1998).
Elaine Johnson Mange & Arthur P. Mange, Basic Human Genetics (2d ed. 1999).
National Research Council Committee on DNA Forensic Science: An Update, The Evaluation of Forensic DNA Evidence (1996).
National Research Council Committee on DNA Technology in Forensic Science, DNA Technology in Forensic Science (1992).
CALJIC NOTE: See FORECITE F 2.80 n8.
