1. Challenges in Explaining DNA Evidence to Jurors: A Defense Attorney’s Point of View
The Science of DNA Profiling: A National Expert Forum
Dayton, OH August 14, 2005
Edward J. Ungvarsky, Special Counsel
(202) ,
Public Defender Service for the District of Columbia

2. Introduction/Goals
What do we know about what jurors think of DNA evidence
Pretrial: Evaluating DNA evidence with jurors in mind
Trial: Presenting DNA evidence with jurors in mind

3. What do we know about what jurors think of DNA Evidence?

5. “CSI Effect” Debate in Popular Media
Prosecutor’s complaints
Not getting convictions where used to
Being held to too high a standard
false, impossible forensics
Expensive and burdensome
Simon Cole analysis
TV shows may make jurors more inclined to convict because they falsely portray forensic evidence as unambiguous and certain

6. Juror Questionnaires/Experiments
PDS – December 2003
DNA is most reliable form of evidence
NIJ Study – Hon. Michael Dann
Less than 1/3 successfully rejected P’s fallacy
contamination
Jonathan Koehler articles
Difference between approaches
Odds v. probabilities
Jurors better understand odds
Anecdotal
Interviews with jurors from high profile cases
DC jurors
1000 jury eligible residents of WDC
Howe persuasive 9/10, 9
Fingerprint 8.3, 8.6
Eyewitness: 6.8, 6.6
Videotaped Confession 7.6, 7.7
Do you think DNA evidence can be wrong? 54%
How often mistakes made DNA evidence in trial? Almost never 78%

7. Summary of Conclusions
Jurors don’t understand forensic DNA profiling
Jurors see DNA as most reliable forensic science
Jurors CAN be persuaded that DNA is not infallible (n.b.: necessity for double negative)
Different statistical approaches have demonstrably different effects

8. General Myths that Need Debunking
DNA is unique
Difference between uniqueness of genome and 13-loci forensic profile
Allele-calling is an objective science
Allele-calling requires human interpretation
Scientists are neutral and laboratories are well-run
Houston, VA, FBI, Cellmark, …

9. Pretrial: Evaluating DNA Evidence with Jurors’ Perspectives in Mind

10. Pretrial Preparation
Need to know the DNA evidence as well as the experts
Once you understand what DNA evidence is and isn’t, you should immediately begin to evaluate its impact on your choice of, and development of, your defense theory
You need to think about ways to explain the presence of DNA in a way that jurors will understand and accept

11. Understanding DNA Evidence
Meetings
National meetings
Promega, AAFS, Forensic Bioinformatics
Local trainings
Experts
At this meeting
Others
Develop own

12. Understanding DNA Evidence
Web:
Jennifer N. Mellon, Note, Manufacturing Convictions: Why Defendants Are Entitled to the Data Underlying Forensic DNA Kits, 51 Duke L.J (2001), available for free online at
Scientific Literature
Journal of Forensic Sciences
Forensic Science International
Non-Forensic Journals (Nature, Genetics, etc.)

13. NRC I and NRC II
Nat’l Research Council, DNA Technology in Forensic Science (1992) [“NRC I”]: There is lots of good language and it is easy to read.
Nat’l Research Council, The Evaluation of Forensic DNA Evidence (1996) [“NRC II”]: For many, it is the “bible” of forensic DNA. You should own a copy or have access to one.

14. John Butler
John M. Butler, Forensic DNA Typing: Biology, Technology, and Genetics of STR Markers (2d ed. 2005)
Dr. Butler is a scientist at NIST. His treatise is THE forensic DNA book to own and to present before a forensic scientist in court. The second edition is over 600 pages.

15. Forensic DNA Treatises
Forensic DNA Evidence Interpretation (John Buckleton, Christopher M. Triggs & Simon J. Walsh eds., 2005). Scientists from outside the United States often bring a different perspective from conventional wisdom in the U.S., where the FBI and government crime laboratories are so dominant.  
Norah Rudin & Keith Inman, An Introduction to Forensic DNA Analysis (2d ed. 2002). A standard textbook in forensic science programs across the country.

16. Treatises: Forensic DNA Statistics
David J. Balding, Weight-of-Evidence for Forensic DNA Profiles (2005). Dr. Balding is a professor of statistical genetics at Imperial College in London, England, who, among other things, has co-authored some of the leading articles on the interpretation of cold hit DNA evidence.   
Ian W. Evett & Bruce S. Weir, Interpreting DNA Evidence: Statistical Genetics for Forensic Scientists (1998). With good examples to help you through the math.

17. Treatises: Statistics
David Freedman et al., Statistics (3d ed. 1998): This is a university textbook, with intuitive examples, written with a minimum of difficult mathematics.
Michael O. Finkelstein & Bruce Levin, Statistics for Lawyers (2d ed. 2001): Like Freedman, but more targeted.

18. Discovery

19. Obtain Discovery Why you need the raw data:
Analyst may have miscalled alleles
To see the graphs of reagent blanks & control samples to look for contamination
Allows your expert to reanalyze data or show data at different settings
To show the jury at trial
To check for manipulation of data by analyst
Get bench notes of analyst as well

20. Review Discovery
Signs of contamination in reagent blanks and positive and negative controls
Masked contributors (misinterpretation of mixtures)
Miscalled alleles (highly subjective “art”)
“Artifacts”
“Stutter”
“Allelic dropout,” false peaks
MAC v. P

21. Consult with Independent Expert
Another set of eyes
Expertise and experience
Not replacement for own assessment of DNA evidence

22. Put Yourself in Jurors’ Shoes
How is the DNA evidence significant to the charges?
How does it relate to the remainder of the evidence?
What is an innocent explanation for the DNA evidence?
MUST have jurors think about DNA from the perspective of the defense

23. Evaluating DNA Evidence at Trial From Defense Perspective
Your client is the source of the DNA
Was involved in the offense but was legally justified: consent, self-defense
Was not involved in the offense: DNA transfer, prior contact, malfeasance, contamination
Your client is not the source of the DNA
Coincidental match
False reported “match” or inclusion (failure to properly call alleles, etc.)
Not going to focus on admissibility because in NM, mostly go to weight and not admissibility. However, if lab protocols are not up to snuff, should attack the methods as inherently unreliable (Patricia Charache)

24. Transfer
Transfer: through towels, laundry basket, brushing against someone on the subway
Other reasons for client’s saliva, skin cells, blood, semen, hair to be at scene (e.g., frequent visitor at decedent’s home)

25. Deliberate contamination with client’s profile in testing process
Malfeasance
Deliberate contamination with client’s profile in testing process
Don’t mean to be flippant; bias is rampant

26. Contamination
Can occur at collection, extraction, amplification, injection
Look at raw data for reagent blanks and positive and negative controls
Degraded or low copy # DNA increases risk
Look to see if laboratory’s protocols were followed
Look at sufficiency of protocols, proficiency tests, and reviewing process
Have a theory for why client’s DNA would be near sample during collection or testing
Using different lanes?
Less than 1 ng
PCR – more cycles, more chance of contamination

27. Contaminated Positive Control
Contamination
Contaminated Positive Control

28. Inaccurate Calling of Data
Masked contributors (misinterpretation of mixtures)

29. Inaccurate Calling of Data
Miscalled alleles (interpretation, not science): stutter

30. False Positives: Josiah Sutton
Complainant ID’d Sutton as rapist; Sutton convicted and sentenced to 25 years
Rain from holes in roof of lab may have caused contamination
Recent retesting exonerated Sutton
Alleles found: 1.1, 2, 4, 4.1
One rapist: (2, 4)
Other rapist must be: (1.1, 4.1)
Sutton: (1.1, 2)
Don’t overlook the obvious: Bob Blasier’s recent case

31. Coincidental Matches There is a match, but it is coincidental
Perpetrator could be a relative (still difficult)
Perpetrator could be a non-relative (should concentrate on lowering the RMP through statistical arguments)
6/16/89 U.S. Open – 4 pro golfers made a hole in one on the same hole, same day. P = 1 in 89 quadrillion (Harvard professor to Boston Globe)
1 in 67 million

32. Independent Testing
Different expert than consulting expert who reviews prosecution’s work
Results of independent testing
Whether to conduct independent testing is complicated judgment call
Face possibility that exclusion may not occur
Assume jury will find out you tested
Lab discloses
Prosecution witness or attorney blurts out

33. During Preparation, Remember the Jurors
Software printouts – what would juror think about this?
Interviewing prosecution experts – what questions would a juror ask this person?
Interviewing independent experts
May sound great but is it understandable
Expert both good on merits and personable
Quality Control – what has lab done to stop recent problems from occurring in its lab
Ability to Test – what could prosecution have tested but didn’t?

34. Presentation of the DNA Evidence at Trial
with Jurors’ Perspectives in Mind

35. DNA Trial Counsel? Different viewpoints
My viewpoint: You don’t have eyewitness counsel or informant counsel, so you don’t need DNA counsel. You don’t have DNA jurors, don’t have DNA counsel.
If DNA Counsel – Counsel should be present entire trial

36. Presentation of DNA: Voir Dire
Jury Selection
What do jurors think about DNA evidence
What do jurors think about OJ Simpson case
Learn about your jurors
Educate your jurors
Open-ended questions
Questionnaires
Get commitment from jurors that they will not convict unless they UNDERSTAND the DNA evidence

37. Presentation of DNA: Opening Statement
Put forward your understanding of the DNA
Incorporate DNA evidence with rest of anticipated evidence
Don’t give away secrets
Don’t talk about what you don’t understand
Don’t bore the jury

38. Cross-Examination “Bias is Always Relevant”
Don’t put witness on pedestal, treat like any other witness
“Who is your client?”
Determine what the LIMITED scope of C-X should be based on your defense theory and what you are planning to question
i.e., don’t question credentials of prosecution witness who will admit to DNA transfer
Question the SCOPE of expert’s expertise
Forensic scientist v. statistician

39. Practice Pointers Short, targeted cross-examination
One fact per question, building upon each other, lead
Use the jargon correctly – Don’t Use Jargon
Keep it to minutes (2 days = 2 hour jury deliberation, conviction)
Preempt fallacies
“Now doctor, saying that RMP is 1 in 100 does NOT mean that there is 1 in 100 chance that the suspect is not the source of the DNA, right?
“And that false assumption is referred to in the literature as the prosecutor’s fallacy, right

40. Prosecution DNA Expert
Do not spar!
Don’t try to out-expert the expert; you’re an intelligent, well-informed layperson, not scientist, and jurors know that

42. Evidence of 3rd Party Peak RFU Stutter % Protocol % Protocol Recc.
Analyst Call 23 52
5.2%
10%
Stutter 24
1007
Genetic profile 27 76
25.2%
12% 28
301

43. Evidence of 3rd Party FBI protocols: % > 12 = genetic profile
~ 12 %
FBI protocols: % > 12 = genetic profile
FBI analyst: “technical artifact”

44. Do You Call Your Own Expert?
Differing opinion/interpretation of DNA results
Prosecution bears burden of proof
Set Up battle of the experts
What will your expert say?
You must understand DNA and talk about testimony with expert before expert testifies

45. Direct Examination
Direct Examination should be about as long as attention span between breaks (1.25 – 1.5 hours)
Includes qualifications
Use analogies and visuals
TV, not radio, generation
Cinderella analogy
Explain through questioning difference between your expert’s area of expertise and prosecution’s, and why that matters
Prepare expert for cross-examination
Prepare re-direct examination – LAST WORD!

46. Closing Argument Visuals? Yes, yes, yes. PowerPoint? No, no, no.
Breaks down
Inflexible
Focus should be on the lawyer and the connection you have made with jury over course of case
Simple – Do not get overly technical
Demystify; bottom line, science v. art
Empower jurors

49. Questions? Edward J. Ungvarsky (202) 824-2301 eungvarsky@pdsdc.org
PowerPoint and Case materials