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DNA for the Defense Bar J U N E 2 0 1 2 DNA for the Defense Bar DNA INITIATIVE � www.NIJ.gov � U.S. Department of Justice Office of Justice Programs 810 Seventh Street N.W. Washington, DC 20531 Eric H. Holder, Jr. Attorney General Mary Lou Leary Acting Assistant Attorney General John H. Laub Director, National Institute of Justice Office of Justice Programs Innovation • Partnerships • Safer Neighborhoods www.ojp.usdoj.gov DNA for the Defense Bar J U N E 2 0 1 2 National Institute of Justice This document is not intended to create, and may not be relied upon to create, any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. The opinions, factual and other findings, conclusions, or recommenda- tions in this publication represent the points of view of a majority of the KADAP members and do not necessarily reflect the official position or policies of the U.S. Department of Justice. NCJ 237975 Foreword � The National Institute of Justice is pleased to release DNA for the Defense Bar. This is the fourth publication in a series designed to increase the field’s understanding of the science of DNA and its application in the courtroom. The other three publications offer free online training tools for teaching officers of the court about forensic DNA analysis, assisting state and local prosecutors in preparing DNA-related cases, and teaching senior law enforcement officials about policy and practices of effective DNA analysis: ■■ Principles of Forensic DNA for Officers of the Court: nij.gov/training/dna-officers-court.htm. ■■ DNA: A Prosecutor’s Practice Notebook: nij.gov/training/dna-prosecutors-notebook.htm. ■■ DNA for Law Enforcement Decision Makers: nij.gov/training/dna-decisionmakers.htm. DNA for the Defense Bar is specifically designed for criminal defense attorneys. NIJ engaged an impressive multi- disciplinary team to produce the most up-to-date information possible in the ever-evolving arena of forensic DNA. Our sincere gratitude goes to our Technical Working Group members: Jack Ballantyne Catherine Cothran Associate Director of Research Palm Beach County Sheriff’s Office University of Central Florida Forensic Biology Unit Orlando, FL West Palm Beach, FL Jules Epstein Christine Funk Defense Attorney and Law Professor Assistant State Public Defender Widener School of Law Minnesota Board of Public Defense Trial Team Wilmington, DE Hastings, MN Chris Plourd Vanessa Potkin Defense Attorney Innocence Project San Diego, CA New York City, NY Ron Reinstein Edward Ungvarsky Arizona Superior Court Judge (retired) DC Public Defender Service Phoenix, AZ Washington, DC I also want to acknowledge the work of the National Clearinghouse for Science, Technology and the Law (NCSTL) at Stetson University College of Law in Tampa, FL — with special thanks to NCSTL’s Director of Outreach, Anjali Swienton, who brought her unique background as both a forensic scientist and a lawyer to this comprehensive effort. It is important to note that NIJ is releasing DNA for the Defense Bar in print — as well as electronically, nij.gov/ pubs-sum/237975 — because we have heard the voices from the field. We know that defense attorneys will want to be able to access this information in places where the Internet may not be available. Since 2004, NIJ has been responsible for administering public funds to ensure that the nation’s criminal justice system maximizes the use of DNA in solving crimes, protecting the innocent, and improving public safety. I hope you will find that DNA for the Defense Bar meets that goal. John H. Laub, Ph.D. Director National Institute of Justice DNA iii I N I T I A T I VE Contents 1 Introduction .................................................................................................................................... 1 � 2 DNA Basics: The Science of DNA .................................................................................................. 3 � 1. What Is DNA? ...........................................................................................................................3 � 2. Where Is DNA Evidence Found? ..............................................................................................8 � 3. What Are the Basic Steps in DNA Typing? .............................................................................12 � 4. What Are the Categories of DNA and DNA Tests? .................................................................12 � 5. Emerging Technologies ..........................................................................................................16 � 6. How to Find Resources and Stay Current ...............................................................................16 � 7. Forensic DNA Lab Report Basics ............................................................................................17 � Endnotes .....................................................................................................................................19 � 3 Discovery: Getting to Know a Case With DNA Evidence .......................................................... 21 � 1. From Crime Scene to Laboratory ............................................................................................21 � 2. Lab-Directed Discovery ...........................................................................................................23 � 3. Brady and DNA Cases .............................................................................................................31 � Endnotes .....................................................................................................................................31 � 4 DNA Evidence: Evaluation, Assessment and Response ............................................................ 33 � 1. Evidence .................................................................................................................................33 � 2. Funding for the Defense DNA Expert .....................................................................................35 � 3. Evidence Consumption ...........................................................................................................36 � Endnotes .....................................................................................................................................37 � 5 DNA Basics: Laboratory Issues ................................................................................................... 39 � 1. Standards for Labs, Personnel and Procedures ......................................................................39 � 2. QAS Requirements for Laboratories .......................................................................................39 � 3. QAS Requirements for Laboratory Procedures ......................................................................40 � 4. QAS Requirements for Laboratory Personnel .........................................................................42 � DNA v I N I T I A T I VE C o N t E N t s 6 DNA Basics: Understanding and Evaluating Test Results ...................................................... 43 � 1. With Your Expert’s Guidance, Interview the Lab Analyst .......................................................43 � 2. Interpretation and Reporting of Results ..................................................................................44 � 3. Technical Artifacts and Interpretation of Results ....................................................................53 � 4. What the DNA Results Do Not Show .....................................................................................62 � 5. Alternate Theories of Defense ................................................................................................63 � 6. DNA and the Client .................................................................................................................64 � 7. Types of Statistics — What Do They Mean? ..........................................................................65 � Endnote .......................................................................................................................................70 � 7 DNA Basics: Pretrial Preparation ................................................................................................. 71 � 1. Should the Defense Request Testing? ...................................................................................71 � 2. Evidentiary Issues ...................................................................................................................71 � 3. DNA Collection — Databanks of Convicted Person DNA .......................................................71 � 4. DNA Collection — Taking DNA From an Arrested Person by Judicial Order ..........................72 � 5. DNA Collection — Taking DNA From an Arrestee Without a Warrant ...................................74 � 6. Alternative Methods of Obtaining DNA Evidence — Consent ................................................75 � 7. Alternative Methods of Obtaining DNA Evidence — Abandoned Property ............................76 � 8. Scientific Evidence Admissibility Standards ............................................................................76 � 9. Motions in Limine — Statistics Issues ...................................................................................76 � 10. Motions in Limine — Presence of the Defendant’s DNA in the Databank ..........................77 � 11. Motions in Limine — Hearsay, Confrontation and DNA Evidence .......................................78 � 12.
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