Summary
applying Frye, holding the standard for whether an expert is impartial and disinterested "is whether the expert's 'livelihood was not intimately connected with the new technique'"
Summary of this case from In re J.M.Opinion
Docket No. 67373.
Argued June 4, 1985 (Calendar No. 8).
Decided August 5, 1986.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, David M. Funk, Jr., Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people.
State Appellate Defender (by Ronald J. Bretz) for the defendant.
AFTER REMAND
The question presented, in the words of the opinion of the Court on an earlier submission of this appeal, is whether "the results of serological electrophoresis [of dried evidentiary bloodstains] have achieved general scientific acceptance for reliability among impartial and disinterested experts" in the scientific community. We conclude that the people have not established such general scientific acceptance.
People v Young, 418 Mich. 1, 25; 340 N.W.2d 805 (1983).
I
Defendant Jeffrey Allen Young was convicted of first-degree murder on evidence that the homicide was committed during the perpetration of a felony. The Court of Appeals affirmed.
The felony described in the information was burglary. On the earlier submission of Young's appeal to this Court, we held that at the time of the homicide the term burglary in the section of the Penal Code defining the offense of first-degree murder meant "breaking and entering of a dwelling house in the nighttime with an intent to commit a felony." The people's evidence tended to show that the breaking and entering occurred in the daytime.
In 1980, the statute was amended to substitute "breaking and entering of a dwelling" for "burglary." 1980 PA 28, amending MCL 750.316; MSA 28.548.
People v Young, n 1 supra at 16.
The "decedent was seen alive at 8:00 A.M.," 3 1/2 hours before his body was discovered. People v Young, n 1 supra at 4.
We further held that "the results of the blood analyses were [not] admissible at trial without a prior showing that the technique of serological electrophoresis enjoys general scientific acceptance among impartial and disinterested experts. . . ."
People v Young, n 1 supra at 5.
We declined to respond to the question "whether the results of blood analyses are admissible to include an accused within the class of possible perpetrators" (emphasis in original) until "development of a record by the trial court at the hearing which we order to determine if serological electrophoretic analysis has achieved general scientific acceptance for reliability, Frye v United States, 54 US App DC 46; 293 F 1013 (1923); People v Davis, 343 Mich. 348; 72 N.W.2d 269 (1955), by disinterested and impartial experts, People v Barbara, 400 Mich. 352; 255 N.W.2d 171 (1977); People v Tobey, 401 Mich. 141; 257 N.W.2d 537 (1977)."
People v Young, n 1 supra at 5.
We declined to reduce the conviction to second-degree murder "pending resolution of the remaining issues in this case following remand," and deferred as "premature" in "light of the hearing which we order" consideration of the prosecutor's argument that "a Davis-Frye error here, if any, was harmless beyond a reasonable doubt because of the other evidence of defendant's guilt adduced at trial."
People v Young, n 1 supra at 17.
People v Young, n 1 supra at 24.
We retained jurisdiction. The hearing on the admissibility of the bloodstain evidence was held in the circuit court, and the record was transmitted to us. Our order did not require the circuit judge to file findings of fact, and he did not do so. Supplemental briefs were filed, and the cause was reargued.
People v Young, n 1 supra at 25.
II
Evaluating the scientific community's acceptance of the reliability of electrophoresis of dried evidentiary bloodstains presents some unusual problems. The number of scientists not working for a police agency who are familiar with electrophoresis of evidentiary bloodstains is small. If these scientists alone were considered, the community would be too small for a fair sampling of scientific opinion. There is, however, a larger number of nonforensic scientists using electrophoresis who are capable of evaluating the reliability of electrophoresis of evidentiary bloodstains if presented with the information they need to fill the gaps in their own knowledge and experience. The two groups combined constitute a group of scientists large enough to make a fair determination of whether electrophoresis of evidentiary bloodstains is generally accepted by experts in the scientific community.
The prosecution has the burden of establishing this community's general acceptance of the reliability of electrophoresis of evidentiary bloodstains. In the instant case, there is disagreement within the community on three separate issues: the length of time that genetic markers, particularly erythrocyte acid phosphatase (EAP), can be accurately read in dried blood, the reliability of the thin-gel multisystem analysis, and the effects of crime-scene contaminants. The prosecution did not fulfill its burden respecting the last two issues raised by the defense.
The only prosecution witness having substantial experience with electrophoresis of evidentiary bloodstains relied on his own unpublished observations and an unpublished reliability study by the developer of the multisystem to conclude that the thin-gel multisystem analysis was reliable. A defense witness questioned both the reliability of the technique and the study. The other prosecution witnesses were unfamiliar with the thin-gel multisystem, and their conclusion about the reliability of the method was based on the absence of any study showing that it did not work. No independently conducted reliability study supported that conclusion. Another defense witness said that the scientific community would not agree on the reliability of that conclusion without better supporting evidence.
Nor have comprehensive control tests been run with respect to the effects of crime scene contaminants. Prosecution witnesses testified, on the basis of their experience with bloodstains drawn under laboratory conditions, that they can identify bacterial contamination, at least if it is of the type normally encountered. They also claimed that bacterial contamination has not affected the reliability of the electrophoretic tests they have conducted. This is, however, the type of self-verification considered inconclusive in the scientific community. The record does not indicate that any work has been done on the effects of soil and chemical contamination on the reliability of electrophoresis.
We conclude that the scientific community's general acceptance of the reliability of electrophoresis of evidentiary bloodstains has not been established in the instant case. Reliability remains in dispute and unresolved because of the questions unanswered. The questions are not likely to be answered and the reliability of electrophoresis of evidentiary bloodstains established until independently conducted validation studies on the thin-gel multisystem analysis are undertaken and comprehensive control tests evaluating the effects of different contaminants are run, and the results have been subjected to the scrutiny of the scientific community. The evidence produced by electrophoresis should, therefore, not have been admitted.
If it were clear that the erroneous admission of the electrophoresis evidence had not prejudiced the defendant, a new trial would not be required. In the instant case, however, it is not clear the error was harmless. The only witness testifying about electrophoresis at the trial said that this new technique was reliable and that the test results showed that only a small percentage of the population could have had the protein subtype and ABO combination found in the blood at the crime scene. It does not clearly appear that the other evidence offered by the prosecution would have dispelled all reasonable doubts in the jurors' minds.
III
Mitchell Lechtanski was last seen alive at 8:00 A.M. on May 16, 1978. At 11:00 A.M., Lechtanski's housekeeper entered his house and found its contents disturbed. She left immediately and called the police. At 11:30 A.M., police officers entered the house and found Lechtanski's body. There was a great amount of blood. The scene was secured and assistance summoned.
At 1:30 P.M., a detective found a trail of blood leading from Lechtanski's driveway to an intersection near a parking lot. Bloodstains were also found on the floor of the rear porch and on a stairway near a window that had apparently been broken to gain entry to the house.
At 3:55 P.M., State Police Crime Laboratory personnel arrived. A laboratory scientist used a damp cloth to obtain samples of dried blood from the sidewalk, stairway, and porch. Detective Stolorow received the stains at the end of May. The stains were accompanied by a brief description of "the location from which that blood was collected. . . ."
The first electrophoretic testing was conducted on June 5.
Electrophoresis is a physical method for the separation of biologically important proteins through the use of electric current. Proteins are very complex molecules which assume positive, negative, or neutral charges, depending on the solution in which they are placed. When these charged molecules are placed on an appropriate medium and subjected to an electrical field, they will migrate toward the pole of the opposite charge. Blood proteins vary in size, shape, density, and charge; consequently they vary in electrophoretic mobility. Therefore, after electrophoresis, they are separated into distinct bands on the supporting medium.
Grunbaum, "Potential and Limitations of Forensic Blood Analysis," in Handbook for Forensic Individualization of Human Blood and Bloodstains, quoted in Jonakait, Will blood tell? Genetic markers in criminal cases, 31 Emory L J 833, 840 (1982).
The distinct bands form characteristic patterns that reveal the protein subtypes.
The samples were tested for five different proteins: phosphoglucomutase (PGM), esterase D (ESD), glyoxylase 1 (GLO), erythrocyte acid phosphatase (EAP), and haptoglobin (Hp). Three of the genetic markers, ESD, PGM, and GLO, were tested simultaneously using a thin-layer starch gel multisystem analysis. The other two genetic markers were tested individually.
A test can yield no interpretable result, or it can reveal the specific subtype of a protein. Protein testing, like ABO blood-type testing, does not give a "yes-or-no" answer, rather, it indicates insufficient information, or it provides the subtype (i.e., for ABO: A, B, AB or O; for PGM: PGM, PGM 1, PGM 2, or PGM 2-1).
The electrophoresis of the dried bloodstain on the stairway yielded no interpretable results for all five of the genetic markers in question. The results of the test of the sidewalk stain were as follows: no detectable activity for Hp and GLO, type B for EAP (the first run was reported as inconclusive), type 2-1 for ESD, type 2-1 for PGM (the first run was reported as inconclusive). The results of the porch stain were as follows: no detectable activity for GLO, type B for EAP, type 2 for Hp, type 2-1 for ESD (the first run was reported as a questionable type 1 for ESD), and type 2-1 for PGM. The tests were not repeated even if there had been inconsistent test readings.
The protein subtypes from the sidewalk and porch stains matched those of Young, but not those of Lechtanski.
At trial, Detective Mark Stolorow testified that less than 1.3 percent of the population has the protein subtype and ABO combination found in the sidewalk stain and one-half of one percent has the subtype and ABO combination found in the porch stain.
People v Young, 106 Mich. App. 323, 327; 308 N.W.2d 194 (1981). The difference between the sidewalk and porch stains was that the PGM test could be interpreted on the sidewalk stain, but not on the porch stain.
IV
On the first submission of this appeal, this Court said that as "unanimous precedent unequivocally demonstrates, the party offering novel scientific evidence has the burden of demonstrating general scientific acceptance for reliability among impartial and disinterested experts before the evidence may be admitted."
People v Young, n 1 supra at 21, n 7. See also People v Tobey, supra at 144-145; People v Barbara, supra at 358, 376.
The general acceptance rule is designed to "prevent the jury from relying on unproven and ultimately unsound scientific methods." It recognizes that jurors are "scarcely" prepared to evaluate "complicated, scientific testimony concerning the theory and operation of the devices in the face of a difference of scientific opinion as to their accuracy." Leaving the decision to disinterested and impartial experts in the scientific community assures that those best qualified to assess the reliability of a scientific method do so. Although requiring the technique to "attain sufficient currency and status to gain the general acceptance of the relevant scientific community" inevitably creates some delay in the admission of the type of proof supplied by a new technique, the delay is deemed necessary to assure that the technique is trustworthy.
People v Gonzales, 415 Mich. 615, 623; 329 N.W.2d 743 (1982).
People v Barbara, supra at 364-365.
The opinion for affirmance states:
If there is a question regarding the sample offered as the basis for the opinion in this case with regard to potential error in age of the marker, the fabric from which it was obtained, the particular test used or other factors going to the foundation of the expert opinion, these are factors to be evaluated by the trial court in its traditional function of determining admissibility, MRE 103, 104. If the test results are determined preliminarily to be admissible, facts affecting the weight and credibility of the opinion may, of course, be placed before the factfinder. Post at 521.
That approach is not consistent with the rationale of the general scientific acceptance test which substitutes, where a new technique is involved, the crucible of general scientific opinion for judge or jury assessment of the competing claims of expert witnesses in the belief that one cannot confidently rely on a judge or jury to resolve accurately a dispute concerning the legitimacy of a new technique.
In all events, if a judge or jury were to be permitted to make the determination of reliability, then the Frye test would in effect be overruled because then a judge or jury could decide that a new technique was reliable without regard to whether it had achieved general scientific acceptance.
Both this opinion and the opinion for affirmance have examined in considerable detail this new scientific technique and the evidence offered by the competing experts. We have done so not because we believe that we are competent to decide whether the new technique is reliable, but rather to indicate the extent of the scientific debate concerning its reliability, the difficulty in determining which of the competing claims is correct, and the need for continued reliance on general scientific acceptance lest a judge or jury, despite the best of efforts, fail to perceive a fundamental flaw in a new technique that objective scientific scrutiny would reveal.
Giannelli, The admissibility of novel scientific evidence: Frye v United States, a half-century later, 80 Colum L R 1197, 1207 (1980).
United States v Addison, 162 US App DC 199, 201; 498 F.2d 741 (1974).
V
At the evidentiary hearing to determine the reliability of electrophoresis of evidentiary bloodstains, the prosecution presented seven witnesses, and the defense presented two witnesses. The prosecution and defense each presented one forensic scientist having substantial experience with electrophoresis of evidentiary bloodstains. Three of the prosecution's witnesses and the other defense witness were geneticists, familiar with electrophoresis, but unfamiliar with electrophoresis of evidentiary bloodstains. The other three prosecution witnesses were technicians, two of whom were full-time employees of law enforcement agencies. Before analyzing their conclusions it is first necessary to determine whether some or all of them are "disinterested and impartial experts in the particular field."
People v Young, n 1 supra at 5, 27; Barbara, supra at 358; People v Tobey, supra at 147.
Because a theoretical understanding is essential, the relevant scientific community is scientists not technicians. Practical experience with the process, however, is also necessary. Ideally the community would be scientists with direct empirical experience with the procedure in question.
Barbara, supra at 377. See also People v Greenwood Brown, 40 Cal.3d 512, 530; 220 Cal.Rptr. 637, 645; 709 P.2d 440 (1985). ("The witness must have academic and professional credentials which equip him to understand both the scientific principles involved and any differences of view on their reliability.")
Barbara, supra at 376-377.
Two of the witnesses fit this description. Dr. George Sensabaugh is an associate professor of public health at the University of California at Berkeley and a specialist in forensic science. He has also conducted electrophoretic studies of dried bloodstains. Dr. Benjamin Grunbaum is a retired biochemist from the University of California with a specialty in criminalistics, the science of identification of physical evidence in criminal cases. He has been recognized to be "a leader in the development of electrophoresis to test body-fluid enzymes for purposes of forensic identification."
People v Greenwood Brown, n 18 supra, 40 Cal.3d 532, n 4.
Grunbaum and Sensabaugh appear to be a part of a small community of scientists doing work on electrophoresis of evidentiary bloodstains. The number of scientists within this community willing to testify seems even smaller. Grunbaum, Sensabaugh, and Mark Stolorow, the police detective who did the electrophoresis in the instant case, figure prominently in the few reported cases involving electrophoresis of evidentiary bloodstains. Those cases might be described as reflecting and reporting a debate between Stolorow and Grunbaum.
Jonakait, n 10 supra at 853. Grunbaum invited Brian Wraxall and Mark Stolorow to join him at the University of California at Berkeley to develop the multisystem. Sensabaugh has collaborated with Wraxall. As the defense commented in its brief in this Court, Grunbaum and Sensabaugh "appear to be the only such [independent] scientists in the country with regard to evidentiary bloodstain electrophoresis." See also Graham v State, 168 Ga. App. 23, 24; 308 S.E.2d 413 (1983) (Deen, J., concurring).
Greenwood Brown, n 18 supra (Grunbaum testified for the defense, Sensabaugh's publications cited by the court to support both prosecution and defense); State v Pearson, 234 Kan. 906; 678 P.2d 605 (1984) (Grunbaum testifying for the defense); State v Washington, 229 Kan. 47; 622 P.2d 986 (1981) (Stolorow for the state, Grunbaum for the defense); People v Harbold, 124 Ill. App.3d 363; 464 N.E.2d 734 (1984) (Stolorow for the state). Compare Tobey, supra at 146, n 9, a polygraph case where this Court noted "It is . . . impossible to overlook the fact that in every case discussed, [the same two people] have been the key — and sometimes the only — expert witnesses."
An argument could be made that neither Grunbaum nor Sensabaugh are disinterested and impartial, and should therefore be excluded despite their expertise. Grunbaum was the leader of the team of scientists that sought to develop a bloodstain analysis system for use in crime laboratories. He brought in Brian Wraxall and Stolorow to work on the project. After expressing dissatisfaction with the multisystem being developed, he withdrew from the project and suggested that it be discontinued. The project continued and when the results were published, he claimed they included misrepresentations. An independent review group found no grounds for Grunbaum's charges, but the sponsors of the project decided not to publish its results. Arguably, Grunbaum is still seeking to vindicate his original position. Sensabaugh also is not clearly disinterested. He has been a collaborator with Brian Wraxall and a paid consultant with the Oakland Crime Laboratory. He has also contributed to a prosecution response to an amicus curiae brief in a case pending before the California Supreme Court.
Grunbaum is also a consultant, but without pay, to a crime laboratory.
Nevertheless, a certain degree of "interest" must be tolerated if scientists familiar with the theory and practice of a new technique are to testify at all. The standard developed by this Court is whether the expert's "livelihood was not intimately connected with the new technique." The livelihood of Stolorow and James Kearney, the prosecution witness who directs the FBI serology laboratory, is intimately connected with the new technique. The livelihood of Grunbaum and Sensabaugh is not so intimately connected.
Tobey, supra at 145; Barbara, supra at 358, 376.
The author of the opinion for affirmance states that she does "not advocate that this Court abandon the Frye test," but would "reject the requirement that the reliability of novel scientific evidence must be established by disinterested witnesses, People v Barbara, 400 Mich. 352; 255 N.W.2d 171 (1977), and People v Tobey, 401 Mich. 141; 257 N.W.2d 537 (1977), that is, those whose livelihood is not `intimately connected with the new technique.'" Post at 511. The opinion adds that the author does not "see a basis for expansion of the rule." Id.
The words "livelihood is intimately connected with the new technique" are not an "expansion of the rule," but were stated by this Court in People v Barbara, supra at 376, as follows:
While one would not want an expert witness without experience or background in the technical field, one would want, where the task was to demonstrate general scientific acceptability, an acknowledgment of the value of the device and the techniques by disinterested scientists whose livelihood was not intimately connected with it.
These words were repeated and reaffirmed by this Court in People v Tobey, supra at 145.
While the interest of a witness may be considered by the trier of fact in assessing credibility, it does not follow that the witness' self-interest does not bear on the question whether there has been general scientific acceptance.
To allow general scientific acceptance to be established on the testimony alone of witnesses whose livelihood is intimately connected with a new technique would eliminate the safeguard of scientific community approval implicit in the general scientific acceptance test. Scientific community approval is absent where those who have developed and whose reputation and livelihood depends on use of the new technique alone certify, in effect self-certify, the validity of the technique. As stated by this Court in People v Barbara, supra at 358:
There was no testimony by disinterested and impartial experts "in the particular field [physiological and psychological] in which it belongs" ( Frye test), and thus no demonstration of "general scientific recognition of such [polygraph] tests" (Michigan rule).
If this Court were to adopt the view that the testimony of persons who have developed and whose reputation and livelihood depends on the use of a new technique alone supports admissibility, then the views of the developer and his disciples would be substituted for the scrutiny of the marketplace of general scientific opinion and the substance of the Frye test would be eliminated.
The opinion for affirmance states:
The "livelihood . . . intimately connected with the new technique" test represents a regressive approach to scientific developments which, parenthetically, would have devalued the opinions of Jonas Salk, Albert Einstein, or Marie Curie, each of whose life work, livelihood, and standing in their professional community was intimately connected with a new scientific procedure. [ Post at 515.]
Salk's vaccine, Curie's work, and Einstin's theories were subjected to the most painstaking and extensive analysis by countless members of the scientific community before they were regarded as reliable. Salk, Curie, and Einstein have been accepted in the pantheon because they have passed the rigid test of acceptance by the general community of scientists, not simply on the basis of self-verifying studies. The experience with the paraffin test and the Dalkon Shield (see n 54 and accompanying text) is again relevant.
Other states that do not require expert testimony from "disinterested and impartial" persons have relied on the testimony of law enforcement employees. In Robinson v State, the Court of Special Appeals of Maryland admitted electrophoresis evidence based solely on the testimony of a police department forensic chemist who said that electrophoresis is generally accepted as reliable by forensic chemists. Robinson v State, 47 Md. App. 558, 574-576; 425 A.2d 211 (1981). "Since the court seemed to accept the conclusion that these tests were used almost exclusively in police laboratories, the court was effectively stating that if the scientists employed by the law enforcement agencies testify that the test is reliable, then the evidence should be admitted." Jonakait, n 10 supra at 859. The decision in Robinson has been questioned. See Greenwood Brown, n 18 supra; Jonakait, n 10 supra at 859.
The community of scientists having direct empirical experience with electrophoresis of evidentiary bloodstains does not seem "sufficiently large so that the Frye objective of receiving a consensus judgment of the scientific community can be met." The community of nonforensic scientists using electrophoresis is, however, large enough to obtain an adequate sampling of scientific opinion. These scientists have sufficient theoretical understanding and practical experience to be able to evaluate the evidence. The geneticists testifying for the prosecution and the defense are therefore in the relevant community of scientists having experience with electrophoresis. They need only explain the gaps in their own knowledge and experience, and reach general agreement about the reliability of the information they are using to fill these gaps, for their judgment to be respected.
Giannelli, n 15 supra at 1209.
We do not mean to suggest that geneticists are better qualified than other scientists having experience with electrophoresis. The scientists with electrophoresis experience in the instant case just happened to be geneticists.
VI
The precise issue in the instant case is whether electrophoresis of evidentiary bloodstains passes the general acceptance test. General acceptance of electrophoresis in other areas is not necessarily relevant. The defendant concedes that serological electrophoresis of fresh blood in paternity testing and genetics research is considered generally reliable. Electrophoresis of evidentiary bloodstains presents, however, a number of complications, particularly the electrophoresis conducted in the instant case. The complications are the bloodstain is not fresh, it is tested by thin-gel multisystem analysis, and, most importantly, it has possibly been exposed to unknown contaminants.
See also Greenwood Brown, n 18 supra, where the court said:
Here, defendant does not seriously dispute the scientific validity of genetic typing tests in general. Rather, he and Dr. Grunbaum focus on the large body of literature which suggests that drying, aging, temperature, contamination (particularly with bacteria or other organic substances), and unknown composition of the test sample — conditions often encountered in forensic work — can affect test results in varying degrees. The defense suggests that no standard, proven, and accepted methodology exists to avoid these dangers.
Some of these problems figure to a lesser extent in electrophoresis of nonevidentiary stains.
A
Electrophoresis for paternity testing and genetics research is generally done on fresh blood. Electrophoresis of evidentiary stains is for the most part done on dried blood. "There is no difference in methodology from fresh blood to dried blood except in preparation of the samples and the extra care that must be exercised in interpretation of results when degraded material is studied." The important difference is that the blood is not fresh, and blood begins to degrade as soon as it leaves the body. The "crucial question is whether the marker detected in aged blood is a reliable indication of that found in fresh blood from the same person." The dispute centers on the results of the EAP test.
Grunbaum, "Procedures for Phenotyping of Genetically Controlled Enzyme and Protein Systems," in Handbook for Forensic Individualization of Human Blood and Bloodstains at 51, 103, quoted in Jonakait, n 10 supra at 842.
See Greenwood Brown, n 18 supra, where the court noted, "The People concede the problem of sample deterioration [but] urge . . . that the [genetic markers] accepted for forensic testing are those most resistant to adverse conditions."
Jonakait, n 10 supra at 879.
The defense raised the possibility of misreadings caused by the deterioration of aged blood. According to Dr. Grunbaum blood degrades very rapidly. In the EAP system, the problem is said to be particularly acute, because the banding patterns for the B, C, and CB types are similar. In the instant case, the sidewalk stain was typed B although originally the reading was inconclusive.
Grunbaum suggested that the A band of the BA type could be lost through decay resulting in a BA that looked like a B. Testifying for the prosecution Sensabaugh agreed that a degraded BA might have been typed a B, but he said the change would signal itself. Grunbaum's response was "if the A degrades faster there can be a . . . time where you will see only the B isoenzyme, and you will not see the A isoenzyme, and you will miscall this as a type B. The explanation given here by Sensabaugh that there is [sic] some guidelines to identify this still as a BA, really do not hold in degraded material, namely the seeing of the secondary B, because in degraded material the clarity of these bands and the resolution is very obscure."
The question of EAP deterioration was addressed in State v Washington, 229 Kan. 47, 55; 622 P.2d 986 (1981). The witnesses were Grunbaum and Stolorow, testifying for the defense and prosecution, respectively. The court rejected Grunbaum's contention, saying, "Grunbaum used a different medium [and] the State produced two separate pieces of evidence showing the contrary — that EAP did not rapidly deteriorate. . . ." (Emphasis supplied.) A commentator has suggested that the first "assertion is particularly interesting, since Grunbaum's published work has shown that false EAP positives are obtained on both mediums — cellulose acetate membranes and starch gel." The commentator continued, "the court's counting of evidence may have been wrong." It appears that "it was not two pieces of evidence contradicting Grunbaum that were given, but rather one piece under two guises." The "piece" of evidence was the "Denault" study that showed that EAP isoenzymes can be correctly identified in dried laboratory-produced bloodstains for up to thirteen weeks.
Jonakait, n 10 supra at 904.
Id. at 870, n 120.
Id. at 871, n 120.
Denault, Takimoto, Kwan, Crim Pallos, Detectability of selected genetic markers in dried blood on aging, 25 J Forensic Sciences 479 (1980).
Grunbaum's criticism that degraded samples cannot be reliably typed also appears to be based on a limited study:
Grunbaum took four different known samples, allowed a portion of each to dry under ambient conditions and heated the remainder for up to 48 h at 37° C. All samples were then subjected to electrophoresis and identified by four skilled technicians. Of the dried samples, two were correctly identified by all four technicians, a third sample was correctly identified by three technicians, with the fourth technician reaching no conclusion as to the isozyme. The fourth sample was correctly identified by one technician. Two were unable to identify it, and the fourth technician misidentified it. Only one of the heated blood samples was correctly identified by all four technicians. One sample was correctly identified twice, misidentified twice, and not identified twice. The last sample was misidentified by three technicians and not identified by one. As the authors pointed out, the treatment of neither the bloodstains nor the heated liquid blood was extreme as compared to real life situations. The technicians were highly trained, yet they misidentified isozymes 7 out of 32 times, for an error rate of 21.8%. Furthermore they correctly identified the isozyme only 53.1% of the time.
Juricek, The misapplication of genetic analysis in forensic science, 29 J Forensic Sciences 8 (1984). Compare Jonakait, n 10 supra at 905, describing what appear to be the same tests.
Despite the small sample used in Grunbaum's research, Sensabaugh cited Grunbaum's work as authority in an article in which he warned, "[t]he `A' isozymes are more labile than the `B' and `C' isozymes; thus in BA heterozygotes the more labile `A' isozymes may be lost, giving an electrophoretic pattern looking like `B' homozygote. . . . It would be good to have a better understanding of how the biochemistry of this marker dictates its behavior."
Sensabaugh, Uses of polymorphic red cell enzymes in forensic science, 10 Clinics in Haematology 185, 204 (1981).
The Denault study, which was also cited in Sensabaugh's article, was a more thorough study.
Jonakait, n 10 supra at 881, 903 ("The [Denault] group . . . has made the most thorough study of how aging conditions affect the persistence of genetic markers . . .").
A perusal of the literature further clarifies the dispute in the field. A scientist writing before the Denault study appeared concluded "the [EAP] enzyme is not particularly stable in dried bloodstains and hence they have to be not more than 2-3 weeks old for successful typing. Older stains can give spurious results." The stain in the instant case was less than three weeks old. Another scientist who did a case study of EAP type CB concluded it could be misread as type c. He did suggest, however, that an awareness of the pitfalls associated with degraded EAP samples "will help to eliminate possible misinterpretations."
Baird, The individuality of blood and bloodstains, 11 J Can Soc Forensic Science 83, 121 (1978), quoted in Jonakait, n 10 supra at 903.
Yeshion, Thermal degradation of erythrocyte acid phosphatase isozymes in a case sample, 25 J Forensic Sciences 695, 697 (1980).
Despite these disagreements, if the only question about the reliability of electrophoresis of evidentiary bloodstains was the survivability of degraded samples, it would be questionable whether electrophoresis evidence should be excluded where the bloodstain is less than three weeks old. The most detailed independent study discussed by the scientists suggests degraded EAP markers can be accurately read up to thirteen weeks. Before this study was written, other scientists believed EAP markers could be accurately read up to two to three weeks, which was the length of time involved in the instant case. The main support for the defense's critique of the studies are test results from too small a sample to carry much weight in the scientific community.
B
The second point of contention is the reliability of the thin-gel multisystem used in the instant case, which simultaneously analyzes three genetic markers, PGM, ESD, and GLO, on a single, thin-layer starch gel. Although other combination systems exist, the multisystem was designed by police scientists for police work; it allows the maximum amount of information to be drawn from electrophoresis of a small stain.
A specific question raised is whether the filter used in the test of the ESD molecules has the unintended effect of compromising the analysis of the PGM and GLO molecules. Because the results of the GLO test were not interpretable in the instant case, the only issue is the reliability of the PGM results in the multisystem analysis.
The defense argues that the thin-gel multisystem is unreliable with respect to dried blood because the blood sample is too marginal to begin with to be accurately read after further diffusion. Once the electrophoretic separation has been conducted, a filter paper containing a chemical reagent is placed over the gel. The filter paper is meant to stain the ESD molecules, but it also soaks up PGM molecules. Grunbaum says this "compromises" the PGM test because "the PGM molecules have diffused sideways, some have disappeared . . . [and] the intensity of the PGM bands are not the same as if they were stained first, before the ESD." Grunbaum said he could "deduce from the photographs [taken of the test] that a leaching out of the PGM has occurred and you can see it very well" in the instant case. The defense argues that the multisystem "aggravates" the problem inherent in analyzing degraded samples.
Grunbaum suggested that a second filter paper is added causing further diffusion, but the prosecution denied the use of a second paper.
The opinion for affirmance quotes Grunbaum as saying that "there are many competent analysts in the country that can do it with a great deal of confidence." Post at 516. The "it" that Grunbaum was talking about was not the thin-gel multisystem method of analysis. Grunbaum said that "at the present state of the art, it [electrophoresis of evidentiary bloodstains] is unreliable." He defined reliability as "you can't miss." Confidence is "something that you allow for a certain error that is inadvertent."
Grunbaum has not researched this question. He is deducing the problem from the obscurity of the photographs.
Whether the defense is arguing that the overlap leads to inconclusive or incorrect readings is not clear from the record.
The defense further argues that no independent study verifying the reliability of the thin-gel multisystem has ever been published. No prosecution witness contradicted this argument. The developer of the thin-gel multisystem, Brian Wraxall, did conduct his own blind trials, but self-verification is not a sufficiently reliable procedure.
This study is what Sensabaugh was referring to when he said blind trials conducted between four laboratories established the reliability of the multisystem.
See Giannelli, n 15 supra at 1213; Dr. Juricek testified that self-verification was against the scientific tradition. Independent verification was deemed necessary to eliminate bias.
The opinion for affirmance states:
These blind trials were not "conducted" by Mr. Wraxall. Rather, five batches of six bloodstains, each of various ages, were sent to serologists in their own labs, for typing of eight genetic markers. Thus, while it appears that the examiners knew what they were looking for, the tests were blind in the sense that the examiners did not know the identity of the markers in the particular sample. Of a total of 912 readings, only one reading was incorrect. Wraxall, p B-7.
Subsequent blind trial proficiency tests for laboratories using the multisystem and those using other systems were conducted by the Forensic Science Foundation from 1979 to 1983. The sum total error rate on individual marker analyses was 1.6 percent of 3107 total tests per protocol. [ Post at 523-525.]
Grunbaum, the original project director, claimed that the results of the "final report," stating that only one of the 912 readings was incorrect, had been falsified. The findings of a panel convened to review the report have also been the subject of a dispute. The prosecution claims the panel concluded there were minor discrepancies but no support for Grunbaum's allegation, while the defense contends the panel concluded that any manipulation of experiments and results did not take place at the managerial level. The Law Enforcement Assistance Administration, the sponsor of the research, decided not to publish Wraxall's final report.
The statement that the reliability of thin-gel multisystem analysis is demonstrated by proficiency tests conducted by crime labs using the multisystem and other combination tests should be read in conjunction with the acknowledgment that it is not known how many of the labs used the multisystem. Without more information, no conclusion can properly be drawn concerning the reliability of Wraxall's multisystem analysis.
Even if that error were to be ignored, the confidence expressed in the statistics remains questionable. While the sum total error rate on individual marker analysis was 1.6 percent of 3107 total tests per protocol, the error rate per sample of blood was 10.9 percent of the total samples. This is because the number of samples was "substantially less than three thousand," four or five tests being performed on each sample. Also it appears that the Forensic Science Foundation factored out "incompetent" analysis, which means the actual error rate was higher.
The prosecutor's response was to present witnesses who have done electrophoresis with other combination tests. Dr. Rachael Fisher and Dr. Harvey Mohrenweiser have used combination systems involving a thick-slab starch gel. Grunbaum distinguished the thick- from the thin-gel combination system. "They [those using the thick gel] slice their gel in such a way that they had several layers, like a layer cake, and they had fresh surfaces, and they stained only one for a given system. So this was not a compromising system." Testimony by at least one of the prosecution witnesses suggested there was some overlap on at least one of the combination systems he used. He did not think the overlap compromised the system: "[W]e will use the fluorescent stain for EAP . . . [and] put the PGM stain on top . . . [but] because we have gone from a fluorescent to a visible stain . . . the two do not interfere with each other." There was no further testimony by either side to resolve the dispute about the effect of the overlapping tests.
The opinion for affirmance states: "It may, however, be noted that combination analysis, or a system that analyzes more than one enzyme at a time, is routinely used and accepted as reliable in the scientific community." Post at 523.
There are a number of different combination methods. The method used in the instant case was a thin-gel combination method. Both the thin-gel and the thick-gel method test markers simultaneously, but the thin-gel involves overlapping tests on the same surface, while the thick gel is sliced so the tests take place on different surfaces. See post at 523, 524. The statement that combination analysis is "routinely used and accepted as reliable in the scientific community," is placed in perspective upon examination of the cited references which do not support the claim of routine use and acceptability in the scientific community. Two scientists said, "It is standard practice in our lab to . . ." (emphasis supplied). One of the two scientists was referring to a thick- and not a thin-gel combination system, and the other seems to be doing the same although there is some ambiguity in his testimony. Their testimony, also, concerns a different kind of multisystem combination test than the one used in the instant case.
The opinion for affirmance states: "The testimony reveals that a combination method for the three markers tested simultaneously in this case, PGM, ESD and GLO, is used in genetic research in the Departments of Pediatrics and Pathology at Michigan State University."
The combination method referred to is one other than the one used in analyzing the bloodstains in the instant case. The method referred to is a thick-gel combination test, not the thin-gel test used in the instant case. Also, genetics research is done with a different kind of sample than an evidentiary stain. An evidentiary bloodstain tends to be "marginal." The samples used in genetics research are not marginal.
The opinion for affirmance states: "A combination method involving two sequential markers on the same gel is also in use at the University of Michigan Medical School, and a combination method was used for three years at the Minneapolis Blood Bank." Post at 523.
The scientist who testified about sequential staining said he had not done a combination test of PGM, ESD, and GLO on a thin gel. Sequential staining was done on "different positions on the gel or where the first stain does not interfere with the second stain." The defense presented testimony that the overlays of ESD and PGM in the instant case were "on the exact same spot on the gel" and that the ESD test compromises the PGM test.
The method used by the blood bank was not the method Wraxall used in the instant case. The blood bank had experimented with Wraxall's simultaneous analysis of PGM, ESD, and GLO on a thin-layer starch gel, and decided not to use that method of analysis.
Footnote 20 of the opinion for affirmance refers, we believe, to electrophoresis of fresh blood in paternity testing and genetics research. See post at 523. Such tests do not involve evidentiary stains or thin-gel multisystem analysis.
The prosecution also asked the scientists using the other combination tests why they believed the thin-gel multisystem was reliable. Their collective response could be summarized in the following comment by Dr. Rachael Fisher, "I have no reason to suppose it wouldn't work." They testified that they had seen no study demonstrating that the multisystem was unreliable. This line of reasoning would be adequate if the burden of establishing general acceptance of unreliability were placed on the defense. The burden of establishing general acceptance of reliability is, however, on the prosecution.
In sum, there are substantial unanswered questions respecting the reliability of Wraxall's thingel multisystem. Conflicting expert testimony indicates that until independent verification tests have been conducted regarding the thin-gel multisystem, general agreement in the scientific community on the reliability of that multisystem is unlikely. A specific question left unresolved is whether the filter used in the test of the ESD molecules compromises the analysis of the PGM molecules.
C
The reliability of blood degraded by dirt, gasoline, urine, sweat, and other possible crime scene contaminants is also at issue in the instant case. Electrophoresis for paternity testing and genetics research is not beset with these problems. The only scientists that have done electrophoresis of blood exposed to these contaminants are those with forensic experience.
Both witnesses for the defense, Grunbaum and Dr. Diane Juricek, testified that it is not possible to determine the reliability of electrophoresis of evidentiary bloodstains until the effects of crime scene contaminants are understood. Juricek said that for electrophoresis of evidentiary bloodstains to be accepted as reliable, scientists would have to study the effects of "common gasoline contaminants which appear on sidewalks, DDT, which can, you know, from spraying grass . . . appear. . . . There is [sic] also bacterial contamination possibilities. There are molds that could have an effect." Although Juricek would not say for certain whether the contaminants would affect the electrophoresis, she said there was a "very strong theoretical possibility" that they would. Grunbaum testified "[t]here is just no way of knowing the degree of . . . the humidity, . . . heat . . . bacterial . . . [and], chemical contamination, and . . . this is a range that goes on beyond anybody's imagination."
Both witnesses testified that the reliability of electrophoresis of evidentiary bloodstains would not be established in the scientific community until controlled studies were conducted taking into account the possible contaminants present at a crime scene. Juricek said "[y]ou would have to check all of these different factors . . . singularly and then in combination. . . ." The studies would then have to be published and "verified independently."
It appears from the record and a survey of the scientific literature that such comprehensive control studies have not been conducted.
Jonakait, n 10 supra at 878.
The prosecution relies instead on inferences drawn from tests performed on dried bloodstains prepared under ideal contamination-free conditions. The only publication referred to by name was the Denault study discussed earlier. Reliance on this study is curious given Denault's own caveat.
[E]mphasis must be placed on the limitations of this study. It is intended as a starting point for future research. . . . Moreover, the tests were conducted on clean specimens free of impurities. It is realized that in actual practice serological evidence preserved under known and constant conditions is rare, and the specimens may be contaminated with impurities such as perspiration, urine, soil, and bacteria. These factors limit the application of the results of the study.
Denault, Takimoto, Kwan, Crim Pallos, n 36 supra at 496.
When questioned about the proviso, the prosecution's only expert with significant experience with evidentiary bloodstains commented, the cleanliness of the stains is not "as significant a problem as they think it is." The prosecution emphasizes that no study has shown unreliability.
Prosecution witnesses testified about their experience with contaminants. Sensabaugh, relying on his own unpublished laboratory study, said that bacterial contamination would signal itself. He said the person interpreting the test would see "new bands appearing in odd positions. . . ." Fisher also testified that bacterial contamination would result in a "different activity, different position." She suggested the contamination "will flag you. . . ."
Juricek has written, however, that bacterial contamination does not necessarily create easily excludable bizarre bands. "Many bacteria have been found to have Type 2 PGM, for example. Thus, Type 1 blood when contaminated by bacteria that have Type 2 PGM would be identified as Type 2-1 despite the use of starch gels and proper controls." The result of the PGM test in the instant case was Type 2-1.
Juricek, n 37 supra.
Fisher was more willing to recognize uncertainty with respect to unknown contaminants. When asked about soil, Fisher answered, "If it is contaminated with soil, I have no idea. It depends on what is in the soil." In response to the judge's comment that "your testimony is that if there was any problem with having to use it [electrophoresis of evidentiary bloodstains] in Court, it would have to come from an incompetent examiner who could not catch a flag that a contaminated sample is going to wave," Fisher said, "There are obvious conditions that I have never tested and which nobody else has ever tested." Although she followed up with the comment that "I can't conceive of anybody [having problems], unless one is going to go around sprinkling the place with rare chemicals," the testimony of another prosecution witness, Dr. Harvey Mohrenweiser, suggests that it is only fair to conclude that examiners will "catch flags" they are used to seeing. The court asked Mohrenweiser whether a competent examiner will "be able to separate the contaminated activity from the non-contaminated activity?" Mohrenweiser answered, the examiner "[s]hould recognize that there is a problem . . . they would be able to recognize and identify samples which are contaminated under sorts of conditions that we routinely operate. That's part of the developmental procedure and recognize that it would be inappropriate to type. . . ." The only stains he had examined were those produced in laboratories. Because these stains were not collected under sterile conditions, there could be "some bacterial contamination." Mohrenweiser and the other prosecution witnesses did not respond to the questions raised by the defense about the effect on electrophoresis of other likely crime scene contaminants such as chemicals and soil.
In sum, scientists do not agree what effect common crime scene contaminants may have on electrophoresis. They do not agree because comprehensive control tests have not been undertaken. The scientists testifying at trial had no experience with soil or chemical contamination and could only guess what effect such contaminants might engender. Although the scientists had some experience with the type of bacterial contamination found in laboratories, the bloodstains here were made during or following the commission of a crime and not under laboratory conditions.
VII
General agreement in the scientific community on the reliability of electrophoresis of evidentiary bloodstains has not been achieved because independently conducted validation tests and control studies have not been undertaken, and the results subjected to the scrutiny of the scientific community. Legal commentators have spoken of the need for comprehensive testing to establish the reliability of a new technique.
Jonakait, n 10 supra at 873, 910; Giannelli, n 15 supra at 1225. See also Graham v State, n 21 supra at 24-26 (Deen, J., concurring).
The scientific tradition expects independent verification of new procedures. When other scientists analyze and repeat the tests, they counteract the dangers of biased reporting. It is scientists not responsible for the original research that confirm its validity.
Although electrophoresis has been generally accepted as reliable in the scientific community for many years, Wraxall's multisystem test is a new technique. No independently conducted verification studies have been undertaken. Scientists evaluating the technique necessarily base their conclusions on the unpublished reliability study conducted by the multisystem's developer. General agreement in the scientific community cannot be achieved on the basis of this type of testing alone. Independently conducted reliability tests on Wraxall's multisystem could, however, be undertaken without great difficulty. Such questions as whether the filter compromises the subsequent tests would seem to be readily resolvable through independent verification.
The absence of control studies measuring the effects of various contaminants on electrophoresis also stands in the way of general agreement in the scientific community. Although it is clearly not possible or necessary to measure every conceivable contaminant in the environment, or at least every contaminant a defense attorney can imagine, the effects of certain common contaminants such as soil and gasoline could and should be tested. According to the record, their effect is presently unknown. It is not clear whether they alter or remove bands and thereby destroy the reliability of the test or whether they just render the results uninterpretable or create an easily identifiable stray band.
The dangers of allowing implementation of an inadequately tested device are well-known. The paraffin test and the Dalkon Shield are two familiar examples. The paraffin test was used by law enforcement agencies and introduced as evidence in court to establish that a suspect has recently fired a gun. "The theory behind the test was that the results established the presence of particles of nitrates . . . deposited on the hand by the gases of a discharged cartridge." It was not until 1967, over thirty years after the test was accepted as reliable evidence in court, that the first comprehensive study was published conclusively showing "that many people who never fired a gun but whose profession, occupation, or happenstance brought them in contact with nitrates can be expected to yield positive reactions to the test."
Jonakait, n 10 supra at 856; Giannelli, n 15 supra at 1225.
Moenssens Inbau, Scientific Evidence in Criminal Cases, § 4.12.
Id. See also Jonakait, n 10 supra at 856; Giannelli, n 15 supra at 1225.
The history of the Dalkon Shield is also instructive. "With adequate testing, controlled studies and cautious marketing, [the manufacturer] could have discovered the increased risks which have been shown to be inherent in the Dalkon Shield's unique new design." Instead, because of its desire to get the new product on the market as quickly as possible, "[t]he defendant relied entirely on [the researcher], who had not only the pride of invention, but also a personal incentive to bias his judgment. . . ."
Hawkinson v A H Robbins Co, Inc, 595 F. Supp. 1290, 1307 (D Colo, 1984).
Id.
VIII
We conclude that the prosecution has failed to demonstrate general acceptance of the reliability of electrophoresis of evidentiary bloodstains by the scientific community.
We turn to the questions whether the error in admitting the electrophoresis evidence was harmless or whether we should remand for a new trial on a charge of second-degree murder.
The erroneous admission of electrophoresis evidence does not necessitate a retrial if it is clear the error did not prejudice the defendant. In the instant case, however, it is not clear the error was harmless.
At trial no one testified about the reliability of electrophoresis except Detective Stolorow. He presented a slide show demonstrating the technique and testified concerning its reliability. As previously discussed, he said that only 1.3 percent of the population has the protein subtype and ABO combination found in the sidewalk stain and one-half of one percent has the subtype and ABO combination found in the porch stain. He said that this meant that one of seventy-seven people would match the sidewalk stain and one of one hundred and seventy-seven people would match the porch stain. Parenthetically, cross-examination at trial did not reveal the absence of independent verification and control studies or other contradictory evidence subsequently raised by Grunbaum and Juricek during the evidentiary hearing.
The prosecution has argued that the admission of the electrophoresis evidence was harmless because of the "abundance" of other evidence. The other proof consisted of ABO blood tests, fingerprints, and the testimony of Terrence Coleman.
People v Young, n 1 supra.
No one contests the reliability of ABO blood testing in general or the results of the ABO test in the instant case. The porch and sidewalk stains were identified as blood group O. This has, however, little significance. As Stolorow testified at trial, forty-five percent of the population have type O blood. Young was not even the only suspect with type O blood.
The fingerprints found in the victim's house are more significant. Twenty-three fingerprints were found, but eleven did not have enough points of comparison to be identifiable. Of the twelve remaining prints, ten of these were Lechtanski's. The other two fingerprints which were found on the handles of a toilet and dresser drawer, were ultimately identified as Young's. Questions were raised, however, concerning the reliability of the identification.
Points of comparison come from the ridges on the fingers of your hand. "[T]hese ridges will run along and then possibly they will abruptly end. When it does this, we call it a ridge ending. Or . . . some will go along, and they will split, and it forms what we call a bifurcation. And there are five of these various types of points that we use in making an identification. There are the ridge endings, the bifurcations, the short ridges, the ridge dots, and enclosures." See also Moenssens, n 55 supra at 350-354.
The fingerprints were compared to the fingerprints of Young on two separate occasions. On May 25, the police laboratory specialist was asked to compare the prints of nine suspects, including Young. The report listed the name of the suspects, with Young's name at the top of the list, and concluded "[c]omparison was made of the latent prints and fingerprints with negative results." The laboratory specialist's explanation at trial of the negative results was that "the only thing I can think of is that I had the cards on my desk, that I had some that I hadn't compared and some that I had compared. I either picked up two cards and stuck his card in with the one possibly above it, or I just put them in the wrong stack to begin with and apparently didn't compare his card at the time."
On June 13, however, the laboratory specialist was asked once again to compare Young's fingerprints with the two prints found in the house. This time he concluded that the fingerprints "were made by the same person." He said there were eight points of comparison between the thumb print found on the toilet handle and Young's thumb print and more than twelve points of comparison between the fingerprint found on the bottom drawer handle and Young's right little finger.
Experts generally require that "a minimum of eight identical ridge characteristics . . . be found in both prints, though most experts prefer at least 10-12 concordances." Although both prints meet the minimal requirements, the fingerprint from the toilet handle just clears the threshold. Of the two fingerprints, the print on the toilet handle is the most important. The reason is the toilet handle fingerprint would have probably been made recently, because "any print that would be put on there would be . . . destroyed by the next person that . . . flushes the toilet." Fingerprints can last a long time, and defense counsel suggested to the jury that the second print might have been made at an earlier date. During cross-examination of a police officer, who testified that Young said he did not know Mitchell Lechtanski and had never been to his house, defense counsel asked "couldn't Mr. Young have known him by simply a name Mickey?" The detective had not shown Young pictures of Lechtanski or the house.
Moenssens, n 55 supra at 366.
Mickey or Mick seems to be how he was addressed in the bar which he frequented.
An acquaintance of Young, Terrence Coleman, testified that the day before the murder he encountered Young on the street and asked what his plans were for the next day, May 16. Coleman testified that Young responded he was planning a robbery on the north side of town. Coleman said he met the defendant the next day and asked him about the murder of Lechtanski: "I asked him if he did it. And he said he did, and the only reason why he did do it because he was coming after him with a blunt object. . . ."
The reliability of Coleman's statements depends on his credibility as a witness. Before the murder he had been convicted of driving away a motor vehicle and delivery of marijuana. Although he said he spoke to Young on May 16, Coleman did not tell the police what he knew until October 26, when he was in jail on charges of possession of stolen merchandise. When he testified at Young's trial, there were charges pending against Coleman. Coleman said, however, that no promises had been made for his testimony.
As an appellate court, we do not independently evaluate this evidence. "[I]t is not the appellate court's function to determine guilt or innocence. . . . Those judgments are exclusively for the jury. . . ." Our responsibility is to determine how the error might have affected the jury's decision. The inquiry is "what effect the error had or reasonably may be taken to have had upon the jury's decision."
Kotteakos v United States, 328 U.S. 750, 763; 66 S Ct 1239; 90 L Ed 1557 (1946).
Id. at 764.
If it were clear that the erroneous admission of the electrophoresis evidence did not prejudice Young, the error would be harmless. We are, however, of the opinion that but for the electrophoresis evidence the jury may have had a reasonable doubt, and that evidence might have made the difference. We therefore remand for a new trial on the charge of second-degree murder.
WILLIAMS, C.J., and BRICKLEY, J., concurred with LEVIN, J.
The issue in this case is whether serological electrophoresis of evidentiary dried bloodstains has achieved general scientific acceptance. As is frequently true, the point at which a court takes up analysis of an issue may mask the real concerns of the law and of individual justices. The question in this case is actually whether the Court is sufficiently convinced of the reliability of this process that it is willing to trust trial courts and juries to treat application of theory and technique in a particular instance in a manner consistent with procedural fairness and just results. This concern, whether articulated as the Frye standard or a different approach to admission of expert opinion, is the motivation for the assertion of an appellate court function when what is proposed to be offered is evidence of a new scientific procedure.
When first the Court considered this case, the issue was the reliability of serological electrophoresis. At the remand hearing conducted pursuant to this Court's order, the defendant conceded that electrophoresis is a reliable and accurate method of determining enzyme and other protein genetic markers in whole blood and blood serum and in laboratory produced dried bloodstains, which has been reliably used for years by geneticists, for paternity testing and in blood banks.
We do not deal here with a question of detection of a mixed stain of blood and semen or semen mixed with saliva, or of semen stains. See People v Greenwood Brown, 40 Cal.3d 512; 220 Cal.Rptr. 637; 709 P.2d 440 (1985).
The reliability of the particular method of electrophroesis, i.e., the multisystem thin gel procedure is not an issue before this Court. First, counsel for defendant, Ronald J. Bretz, whose performance on the record on remand, at oral argument, and in briefing before this Court is commendable both for its advocacy and its integrity, does not suggest to this Court that the issue before us is the reliability of the multisystem technique. Rather, despite the fact that, as both counsel and the trial court recognized, the record on remand went beyond the apparent scope of the remand order, Mr. Bretz, has carefully framed the issue before us as: Whether dried bloodstains from an unknown source which are left at a crime scene and exposed to unknown conditions can be accurately tested using electrophoretic technology.
Second, acceptance of the contention that we must decide on the reliability of the multisystem used in this case results in an application of the test articulated in Frye v United States, 54 App DC 46; 293 F 1013 (1923), that would make it necessary for every modification of an already accepted technique to pass the Frye hurdle, an issue not argued or briefed here. The question before us is not whether electrophoresis of dried bloodstains using the multisystem is reliable, but, as the trial judge correctly found on remand:
Whether there [is] any scientific process, by whatever name, that has achieved sufficient scientific reliability and acceptance so as to attempt to accomplish result in a court of law. . . . Is there any process that has sufficient scientific reliability that it should be considered as competent evidence? . . . It appears that is a question that the Supreme Court sent back, using the Young trial in the first instance as a vehicle to determine whether, by whatever name, there is any process that we should be concerned with.
* * *
. . . I am saying at this juncture, as a matter of order of proofs, get to the first question. Is there anything by whatever name that has achieved scientific reliability and acceptance to identify — to link unknown persons with dried bloodstains under forensic circumstances.
The reliability of the particular technique used for the electrophoresis testing of the dried bloodstain in this case is not properly before us, nor is it a question we should be considering. Our only role is to decide whether or not dried evidentiary bloodstains can be reliably typed using an electrophoretic method, not whether it works better on one gel medium than another. Questions as to the technique used by Mr. Stolorow to effectuate the electrophoresis in the Young case must be addressed to the trial court.
Frye v United States, n 2 supra.
It is clear that, in a system which approaches the admission of expert testimony with a presumption of admissibility, MRE 702/FRE 702, resistance to a novel scientific technique is a paradox based upon a fear that the usual vehicle for evaluating credibility, the fact-finding function, is inadequate to the task. It is further founded on the belief that judges themselves cannot, at the threshold level, deal with the complexities of the evidentiary issue. The test of general acceptance in the scientific community is, in this context, simply a reformulation of the principle that men and women do not ordinarily react to or act upon information in which they do not have confidence. Thus, adoption of a theory and use of a technique are circumstantial indications of the probative value of the evidence.
I conclude that the record below establishes that both the theory of electrophoresis and its application to dried evidentiary bloodstains have gained general acceptance in the particular field in which each belongs. Frye v United States, 54 US App DC 46; 293 F 1013 (1923).
THE FRYE TEST
The Frye standard was first formulated by the United States Court of Appeals for the District of Columbia Circuit in 1923. In a case of first impression, the court found that the polygraph evidence offered by the defendant was inadmissible because the technique had not been sufficiently accepted as reliable by the relevant scientific community. In oft-quoted language, the court concluded:
It is interesting to note that the defendant in Frye, although convicted, was subsequently pardoned when another person confessed to the crime.
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while the courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. [ Frye, supra, p 47.]
Although critics have asserted that in the two-page opinion, the Frye court neither cited authority nor offered an explanation for adopting the general acceptance standard and that the standard may have been nothing more than dicta, the Frye test was soon accepted in most jurisdictions.
Giannelli, The admissibility of novel scientific evidence: Frye v United States, A half century later, 80 Colum L R 1197, 1205 (1980).
Costley, Scientific evidence — Admissibility Fryed to a crisp, 21 S Tex L J 62, 64 (1980).
Since its adoption, the criticism of the Frye test has often been vehement. As one commentator noted:
Commentators have not been restrained in their criticism of the Frye test. See Moenssens [ Polygraph Test Results Meet Standards for Admissibility as Evidence, in Legal Admissibility of the Polygraph (Ansby ed, 1975)] at 19 ("archaic"); 22 C Wright K Graham [Federal Practice Procedure § 5168] at 87 ("a `sport'"); Conrad, Landmarks and Hallmarks in Scientific Evidence, in Source-book in Criminalistics 37, 38 (C Hormachea ed, 1974) ("antiquated on the day of its pronouncement"); Tarlow, Admissibility of Polygraph Evidence in 1975: An Aid in Determining Credibility in a Perjury-Plagued System, 26 Hastings L J 917, 923 n 38 (1975) ("infamous"). [Giannelli, The admissibility of novel scientific evidence: Frye v United States, a half century later, 80 Colum L R 1197, 1206-1207, n 59 (1980).]
Critics have focused on several problems with the Frye test. Most frequently, comments have been directed at its excessive restriction on the admission of relevant evidence, its tendency to fix standards when the evolution of scientific methodology may well make the standard outmoded in the future, and the implausibility of assigning many new scientific methods into well-defined areas. See Costley, Scientific evidence — Admissibility Fryed to a crisp, 21 S Tex L J 62, 64-65 (1980); Giannelli, supra, 1208-1209.
An additional criticism of the Frye test is that there are no definite criteria to use to decide if there has been general acceptance. Because it is impossible to find unanimous agreement in any field, the courts have been hard-pressed to find the appropriate number of experts who must have accepted the technique as reliable. As one commentator noted:
It would be a mistake for the courts to wait for certainty and complete agreement. Neither science nor the law functions on such a premise. The inconsistencies found in the social world are varied and ever changing. In view of this, the courts should apply scientific principles while bearing in mind the fact that current reality means making decisions under uncertain and unstable conditions. [Costley, supra, p 67.]
See also Strong, Questions affecting the admissibility of scientific evidence, 1970 U Ill L F 1 (1970), and Giannelli, supra.
In response to the criticisms of the Frye test, several courts and at least one federal circuit have either abandoned the test entirely or severely limited its application. In a lead case, the Supreme Judicial Court of Maine ruled that novel scientific evidence would be admissible into evidence when "the testimony to be given is relevant and will assist the trier of fact to understand the evidence or to determine a fact in issue." State v Williams, 388 A.2d 500, 504 (Me, 1978). See also United States v Williams, 583 F.2d 1194 (CA 2, 1978), cert den 439 U.S. 1117 (1979); Whalen v State, 434 A.2d 1346 (Del, 1980), cert den 455 U.S. 910 (1982); State v Hall, 297 N.W.2d 80 (Iowa, 1980), cert den 450 U.S. 927 (1981); Phillips ex rel Utah Dep't of Social Services v Jackson, 615 P.2d 1228 (Utah, 1980); State v Catanese, 368 So.2d 975 (La, 1979); Watson v State, 64 Wis.2d 264; 219 N.W.2d 398 (1974).
There is considerable controversy in the federal courts as to whether or not Frye survived the enactment of the new Federal Rules of Evidence. Although there are no specific statements repudiating the standard, those who believe it did not survive, point to Rule 401 which defines relevant evidence and Rule 402 which mandates that all relevant evidence is admissible, except as otherwise provided by the rules, an Act of Congress, the United States Constitution or by other rules prescribed by the United States Supreme Court.
Some states and federal circuits, while not specifically rejecting the Frye test, have modified it in cases where it would have posed an obstacle to the admissibility of otherwise relevant evidence. In Coppolino v State, 223 So.2d 68 (Fla App, 1969), app dis 234 So.2d 120 (Fla, 1969), cert den 399 U.S. 927 (1970), for example, the Florida District Court of Appeals approved the admission of the results of tests formulated specifically for the case (test to detect the presence of succinylcholine chloride in body tissue), while specifically noting that Florida continued to adhere to the Frye rule. The record in that case only indicated that the reliability of the test was accepted by the state's witness and not by those presented by the defense.
The Massachusetts Supreme Judicial Court modified the Frye Standard in Commonwealth v Lykus, 367 Mass. 191; 327 N.E.2d 671 (1975), stating that general acceptance could be shown if it were only among those who would be expected to be familiar with its use. See also State v Souel, 53 Ohio St.2d 123; 372 N.E.2d 1318 (1978); People v Allweiss, 48 N.Y.2d 40; 421 N.Y.S.2d 341; 396 N.E.2d 735 (1979); Ibn-Tamas v United States, 407 A.2d 626 (DC, 1979); People v LaSumba, 92 Ill. App.3d 621; 414 N.E.2d 1318 (1980), cert den 454 U.S. 849 (1981); Ex parte Dolvin, 391 So.2d 677 (Ala, 1980); United States v Baller, 519 F.2d 463 (CA 4, 1975), cert den 423 U.S. 1019 (1975); United States v Franks, 511 F.2d 25 (CA 6, 1975).
The continuing debate over the proper approach to novel scientific evidence is generated by the tension between a reluctant approach to novel evidence which may carry great weight for the factfinder and the principle that evidence which may be of value to the factfinder should be precluded only when necessary to carry out the dictates of a conflicting and overriding policy. I do not advocate that this Court abandon the Frye test. I would, however, reject the requirement that the reliability of novel scientific evidence must be established by disinterested witnesses, People v Barbara, 400 Mich. 352; 255 N.W.2d 171 (1977), and People v Tobey, 401 Mich. 141; 257 N.W.2d 537 (1977), that is, those whose livelihood is not "intimately connected with the new technique." While it may be appropriate for the Court to use Frye for its intended purpose, I do not see a basis for the expansion of the rule in a direction which erects insurmountable obstacles to forensic evidence and thus needlessly impedes the admission of probative evidence. Such a rule establishes a "Catch 22" approach to admissibility in the face of a national trend toward a more liberal approach to the admissibility standard.
See, e.g., Trautman, Logical or legal relevancy — A conflict in theory, 5 Van L R 385 (1952); Boyce, Judicial recognition of scientific evidence in criminal cases, 8 Utah LR 313 (1963); Strong, supra; Giannelli, supra; Costley, supra; McCormick, Scientific evidence: Defining a new approach to admissibility, 67 Iowa L R 879 (1982).
Perhaps most well known for his criticism of the Frye test is Dean McCormick. In his text on evidence he notes:
General scientific acceptance is a proper condition for taking judicial notice of scientific facts, but it is not a suitable criterion for the admissibility of scientific evidence. Any relevant conclusions supported by a qualified expert witness should be received unless there are distinct reasons for exclusion. These reasons are the familiar ones of prejudicing or misleading the jury or consuming undue amounts of time. [McCormick, Evidence (3d ed), § 203, p 608.]
Contrary to the contention that the approach of the majority is not a modification of People v Barbara and People v Tobey, neither case can be read as standing for the proposition that a foundation must be established by disinterested scientists, or that while "a certain degree of `interest' must be tolerated," ante at 483, the testimony of a scientist whose livelihood is intimately connected with the new technique must be disregarded. Rather, in Barbara, the Court specifically noted that the credentials of the witnesses, "although outstanding for polygraph technicians, are not those of scientists." Id., p 377. The Court also noted "[u]nder the present state of the art the general acceptance of the polygraph among psychologists and physiologists cannot be demonstrated, because such acceptance does not exist." Id., p 390. While the Court stated that "one would want, where the task was to demonstrate general scientific acceptability, an acknowledgment of the value of the device and the techniques by disinterested scientists whose livelihood was not intimately connected with it," id., p 376, Barbara did not stand for the proposition that the Frye standard could only be met by disinterested scientists.
Nonetheless, the Court in Tobey, supra, p 145, cited the rule of Barbara as follows: "[G]eneral scientific recognition may not be established without the testimony of . . . `disinterested scientists whose livelihood was not intimately connected with' the new technique." The Court in Tobey then applied the rule to the testimony of a police officer "but not a scientist" and to the testimony of a professor of audiology and noted that "[n]either Nash nor Tosi, whose reputations and careers have been built on their voiceprint work, can be said to be impartial or disinterested." Id., p 146.
Pennsylvania and California have held that the testimony of a single witness, whose career has been "built . . . on the reliability of the technique," People v Kelly, 17 Cal.3d 24, 38; 130 Cal.Rptr. 144; 549 P.2d 1240 (1976), and who was not a scientist, was insufficient to establish the reliability of a new technique, Commonwealth v Topa, 471 Pa. 223, 231; 369 A.2d 1277 (1977). See also People v Brown, 40 Cal.3d 512; 220 Cal.Rptr. 637; 709 P.2d 440 (1985) (forensic technicians identified with law enforcement, with career interest in acceptance of tests and lack of formal training and background in the applicable scientific field not qualified to state the view of the relevant community of impartial scientists).
I do not quarrel with the Court's conclusion in either Tobey or Barbara that the record was insufficient to establish general acceptance in the relevant scientific community. What I do take issue with is the majority's conversion of the rationale of Barbara into a rule requiring the disqualification of the testimony of witnesses who indisputably have education, formal training, and background in the applicable scientific disciplines.
That a court may weigh the credentials and self-interest of a witness in determining whether a sufficient showing of reliability has been made is self-evident; it does not logically follow, as the majority suggests, that a witness' self-interest compels this result.
Nor does it follow that scientific community approval is absent where those who have developed the technique and whose reputation and livelihood depend on use of the new technique alone certify the validity of the technique. Situations can certainly be hypothesized where the background, education, experience and reputation of one individual would be such as to persuade the appellate court of that individual's qualifications to express an opinion on the question of general scientific acceptance.
A trial or appellate court could comfortably conclude that the testimony of technicians is insufficient to establish reliability. There is, however, simply no basis for placing wholesale the "disinterested expert/intimately connected" gloss on the Frye test. Indeed, as the trial court noted, the effect of such a test diminishes, as a matter of law, the testimony of Mark Stolorow, who is not a technician, but the holder of a bachelor of science degree and a master's degree in forensic chemistry, is a codeveloper of the technique, and who has been working with it and teaching it since 1975. It also diminishes the testimony of James Kearney of the serology unit of the FBI who holds a bachelor of science degree in bacteriology and a master's degree in microbiology, and who also has worked with and taught the procedure of electrophoresis of evidentiary dried bloodstains since 1978 (in a laboratory that does 8500 electrophoretic examinations a month, ninety percent of which are done by the multisystem).
The instant record is a paradigm of the problems created by such an approach. The testimony of those who have the most knowledge in the field, the forensic scientists, is regarded as suspect. The testimony of Drs. Sensabaugh, Grunbaum, and Juricek, all of whom may be said to have an advocacy interest in the issue, is accorded greater weight. The witnesses who have no financial interest in forensic phenotyping and no actual experience in the process are accorded the most deference in this variation of the Frye/Tobey/Barbara analysis. The result is that those scientists who know the most about the process are viewed, as a matter of law, as the least persuasive witnesses. The "livelihood . . . intimately connected with the new technique" test represents a regressive approach to scientific developments which, parenthetically, would have devalued the opinions of Jonas Salk, Albert Einstein, or Marie Curie, each of whose life work, livelihood, and standing in their professional community was intimately connected with a new scientific procedure.
Dr. Grunbaum has, according to the reply brief in People v Brown, supra, invented a machine for PGM typing and receives a percentage.
THE THEORY OF ELECTROPHORESIS
Electrophoresis is the movement of charged particles through a buffered conducting medium by application of a direct current. The term isozyme is used to describe enzymically active blood proteins which can be identified by their relative mobilities in an electric field. After separation of the proteins into marker bands by application of a current, specific chemicals are applied to make the proteins visible. Biology Methods Manual, Metropolitan Police Forensic Science Laboratory, London, England (1978). The relative distance of the bands from a common origin is compared with known standards, and evaluated by established guidelines.
The results are then compared to population studies which show the known frequency of each factor in a given population. This produces a statistic which is representative of the percentage of the population that has that group and those factors in common. The more genetic markers identified, the smaller the population of persons who might possess a particular combination of factors.
The samples in this case, upon which the prosecution's witness offered his opinion, had previously been determined to be type o, in the ABO system, a type occurring in forty-five percent of the population.
APPLICATION OF THE THEORY TO EVIDENTIARY BLOODSTAINS
It is undisputed on this record that the theory of electrophoresis is generally accepted as reliable in the scientific community. Indeed all witnesses at the hearing on remand so testified.
There is ample basis in the record, even apart from defendant's concession, that the theory of serological electrophoresis, and the application of the theory to laboratory-produced dried blood samples, has achieved general scientific acceptance as a reliable identification technique. Dr. Grunbaum testified at trial to these conclusions and also acknowledged that proficiency tests established that, as to evidentiary materials, "there are many competent analysts in the country that can do it [electrophoresis on evidentiary bloodstains] with a great deal of confidence."
My colleague's reliance on Jonakait's article, Will blood tell?, 31 Emory L J 833, 851 (1982), is problematic, given the fact that Professor Jonakait is a lawyer, not a scientist [see People v Shirley, 31 Cal.3d 18; 181 Cal.Rptr. 243; 641 P.2d 775 (1982)], and that he describes his initial "problem" as a concern that "[t]he forensic scientist stands alone in the attempt to classify genetic markers in dried blood. . . ." He further claims that "[t]he geneticist . . . does not have an interest in classifying genetic markers in dried blood. Instead [the geneticist,] like the blood bank, works with fresh or preserved liquid blood." This observation by Professor Jonakait is directly contrary to the testimony of Dr. Rachael A. Fisher, who holds a Ph.D. in Biochemical Genetics from the University of London. Dr. Fisher testified that she routinely tests dried stains in her research on inherited diseases. It is also contrary to the testimony of Dale Dykes of the Minneapolis War Memorial Blood Bank who stated that, in acting as a referral agency for laboratories in other countries who are comparing their own genetic variants, their laboratory finds it more suitable if dried blood is sent to them for analysis.
In general, fewer marker systems are usable in stain analysis than in fresh materials. There are in excess of seventy-five markers in human blood, approximately a dozen of which are amenable to stain analysis. Whether a genetic marker can be typed in a stain depends on whether it persists in recognizable form in the stain material. This inquiry has required a determination of the life expectancy of particular markers in samples exposed to air and other possible contaminants. If the marker persists, then methods which produce reliable results with fresh blood will also give reliable results with stain material, Denault, Detectability of selected genetic markers in dried blood on aging, 25 J Forensic Sciences 479 (1980), provided the samples are carefully prepared and interpreted, Grunbaum, "Procedures for Phenotyping of Genetically Controlled Enzyme and Protein Systems," Handbook for Forensic Individualization of Human Blood and Bloodstains (1981).
The record establishes that the five genetic markers tested for in this case (EAP, ESD, GLO, PGM, and Hp) persist in dried stains and that it is a common practice, accepted in both this country and the international scientific community, to transmit dried stains, on paper or cloth by mail. The testimony also revealed that these stains remain readable through the use of accepted protocols. See also Denault supra; Gaensslen, Source-book in Forensic Serology, Immunology, and Biochemistry, National Institute of Justice (1983). Gaensslen, supra, pp 431-432, reports fourteen studies on the survival of PGM enzymes in dried bloodstains and notes that all the samples could be correctly typed up to thirty-two days. Denault's study reports the detectability of EAP, PGM, AK, and ADA. The markers in all samples were unknowns to the investigators. Denault, supra. See also testimony of Dr. Rachael Fisher, Michigan State University, and Dr. Harvey Mohrenweiser, University of Michigan, Department of Human Genetics. The literature also reports that in 1976 Wraxall and Eames reported a starch gel method for electrophoretic typing of EAP in stains and that "blind trial studies" indicated that the procedure was completely reliable. Gaensslen, supra, p 451. Dr. Rachael Fisher also testified that alterations from drying were not seen in PGM or EAD and that the effect of aging on ADA and EAP could be reversed by Cleland's reagent.
Thus, while it is true that blood degrades rapidly while drying, the literature and the record establish that markers which undergo alteration during drying are rejected for forensic use and that the markers in question in this case may be reliably identified by electrophoresis. Sensabaugh, Uses of polymorphic red cell enzymes in forensic science, 10 Clinics in Haematology 185 (1981).
The results of a Law Enforcement Assistance Administration study of dried stains were not published, but the study, conducted by Brian Wraxall, is available in the National Criminal Justice Reference Service and the findings have been circulated to, and adopted by, a sizeable number of forensic laboratories. Thus, both the theory and its application to stains have been put into practice and relied upon for an extended period of time. Wraxall, Final Report, Bloodstain Analysis System, United States Department of Justice, 1978.
The literature and the record in this case indicate a continual effort to monitor results and to further reduce the possibility of error in electrophoresis of dried bloodstains. As a result of this effort, scientists and technicians are now well aware of procedures and indicators unique to dried bloodstain analysis, and genetic markers which undergo changes which will affect the typing results are rejected for use by forensic scientists (and by geneticists for population studies).
Also, the forensic process itself includes the systematic evaluation of the stability of markers stored under various known conditions such as aging, humidity, chemicals, heating, and freezing. If the typing of a marker substrata system cannot be made reliable, then it is discarded. Sensabaugh, supra, p 198.
Because the principal effect of bacteria is on wet blood, contamination in a dried stain will signal itself as untypeable or will result in different band patterns. These patterns are evaluated by guidelines set forth in the literature. Biology Methods Manual, supra, pp 2-88 to 2-138. Bacteria, thus, manifests itself as a problem which is different from those normally seen and not comparable to the control marker. Forensic and nonforensic scientists routinely analyze air dried samples which have been contaminated by bacteria. One example of this process is illustrated by the method in which difficulties in the EAP system have been addressed. See Williams Shah, "Enzyme Patterns in Bacterial Classification and Identification," Microbiological Classification and Identification, 1980, pp 299-318. The EAP system is based on a genetic explanation of six phenotypes called A, BA, B, CA, CB, and C. The differences between these phenotypes on electrophoretic plates are a matter of band intensity. Misinterpretation of phenotypes is possible if these effects are not fully appreciated. The methodology, therefore, dictates the inclusion of appropriate controls of known phenotypes when using any phenotypic procedure, and particularly when attempting to diagnose B, CB, and C phenotypes. Gaensslen, supra, p 452.
Finally, and most significantly, the record indicates that the consequence of virtually all typing errors is a false exclusion. If one typing error is made on a true person, that person is excluded. The possibility of false inclusion is more remote.
Assuming, as in this case, five markers with three possible types, Sensabaugh testified as follows:
I think it is important to have a sense of the large number. Three to the third is 27, three to the fourth is 81, three to the fifth is 243. . . . In any case, those are all possible outcomes of the typing tests, some very large number. You end up with one outcome. If the person is the true source and you make a mistake on the typing, then you have excluded that person. . . .
The possibility of a false inclusion is very much less than the possibility of a false exclusion, and that is because you would have to have one by chance, one of the . . . two hundred and forty possible types would have to match the false result that you got.
As the trial court correctly observed, the reliability of the particular sample in a given analysis is a distinct question from the reliability of the theory or the technique. The claim that the possibility of contaminants in a crime scene sample precludes a conclusion of the reliability of the technique or the theory of electrophoresis, is in reality a claim that there can never be a reliable forensic opinion, since as Dr. Grunbaum noted, the range of potential contaminants "goes on beyond anybody's imagination." While it is true that specimens may be contaminated with impurities, the literature indicates that different conditions of exposure cause variation in the persistence of typeable markers and that those markers that persist can be reliably identified. Although, as the majority notes, Dr. Juricek has testified and written that Type 2 PGM may contaminate Type 1 blood and lead to a Type 1 PGM being identified as a Type 2-1, the literature indicates that the only false positives that have been reported for PGM are in whole blood samples. Gaensslen, supra, p 433.
This appears to be the basis for Jonakait's claim that the Frye test is inadequate to guarantee reliability of the genetic tests since, in Jonakait's view, these procedures are only used in the forensic lab and general acceptance in the field cannot and will not be possible.
The effects of heating, humidity, aging, metals, chemicals, air born bacteria, and substrata have been investigated for the markers in question in this case. Culliford, The Examination and Typing of Bloodstains in the Crime Laboratory, Department of Justice, 1971, pp 108, 117, 120; Denault, supra; Biology Methods Manual, supra, pp 2-88 to 2-138. The application of electrophoresis to evidentiary dried bloodstains is generally accepted in the relevant scientific community and is reliable.
DISTINCTION BETWEEN RELIABILITY OF THEORY AND TECHNIQUE AND THE EVALUATION OF EXPERT OPINION PROFFERED IN A PARTICULAR CASE
If there is a question regarding the sample offered as the basis for the opinion in this case with regard to potential error in age of the marker, the fabric from which it was obtained, the particular test used or other factors going to the foundation of the expert opinion, these are factors to be evaluated by the trial court in its traditional function of determining admissibility, MRE 103, 104. If the test results are determined preliminarily to be admissible, facts affecting the weight and credibility of the opinion may, of course, be placed before the factfinder.
The effect of crime scene contaminants on a particular sample is a question that relates to the trial court's duty to determine, as a preliminary issue of admissibility, whether the expert opinion offered in a given case with regard to a particular sample has a sufficient foundation to be relevant. If the testimony is admitted, questions concerning the reliability of the sample and the test employed are explored through cross-examination and go to the weight and credibility of the opinion.
I note that what we are not presented with in this case is a situation where the test results and photographs of the test itself are not available. In this case, photographs were taken and test results were recorded. Sensabaugh, supra, p 202, opines that every effort should be made to maintain the sample in a scientific test in order to ensure admissibility. The proposed new Michigan Rules of Criminal Procedure on discovery would make available to the defendant the results of any scientific testing done by the prosecution. Proposed MCR 6.202
The fact for example that the Denault study indicated four false positives for the antigens A and B at twenty-six weeks is not a reason for rejection of the theory of electrophoretic typing of evidentiary bloodstains. Rather, the Denault work is a basis for a challenge to an opinion about the reliability of testing on a comparable sample.
Because both the theory of electrophoresis and its application to evidentiary bloodstains are generally accepted in the relevant scientific community, I conclude that the testimony was properly admitted below.
THE MULTISYSTEM TECHNIQUE
While the issue of the particular technique used in this case was not within the scope of the remand order, and is not a proper subject for review by this Court, the majority deals extensively with the multisystem method as if that were the technique in question. Indeed, the observation in the majority opinion, p 491, that "[b]ecause the results of the GLO test were not interpretable in the instant case, the only issue is the reliability of the PGM results in the multisystem analysis," highlights the fact that this is a question that goes to the discrete issue of admissibility and credibility of the opinion offered in this case.
It may, however, be noted that combination analysis, or a system that analyzes more than one enzyme at a time, is routinely used and accepted as reliable in the scientific community. The testimony reveals that a combination method for the three markers tested simultaneously in this case, PGM, ESD, and GLO, is used in genetic research in the Departments of Pediatrics and Pathology at Michigan State University. A combination method involving two sequential markers on the same gel is also in use at the University of Michigan Medical School, and a combination method was used for three years at the Minneapolis Blood Bank. The literature establishes that there are a wide variety of multiple systems used to determine polymorphic enzymes on the same electrophoretic run and that these procedures are used by forensic and nonforensic scientists. See Gaensslen, supra, p 432.
It also appears that the data, created from the occurrence of genetic markers in a population study conducted by Mark Stolorow, was determined to be reliable and is in fact relied upon at the University of Michigan School of Medicine. Further, the percentage frequency of genetic markers for these systems was independently and repeatedly confirmed by an independent laboratory and incorporated in a published report of the American Association of Blood Banks.
The particular multisystem method used in this case has been used by the FBI since 1979, is in use in more than one hundred crime laboratories in the country, and is taught to and used by students as a protocol at the University of California in Berkeley. It is also used for fresh blood testing in an independent laboratory available to any seeker of its services.
This method was tested by blind trial tests conducted in four separate laboratories. Final Report, supra. While the results were returned to and tabulated by Beckham Laboratories, to which Brian Wraxall was then under contract, it is not correct to suggest that this was not an independent study or that these tests were self-verifying. These blind trials were not "conducted" by Mr. Wraxall. Rather, five batches of six bloodstains, each of various ages, were sent to serologists in their own labs, for typing of eight genetic markers. Thus, while it appears that the examiners knew what they were looking for, the tests were blind in the sense that the examiners did not know the identity of the markers in the particular sample. Of a total of 912 readings, only one reading was incorrect. Wraxall, p B-7.
My colleagues' conclusion with regard to the Wraxall tests ( ante, p 492) is perplexing in light of the fact that the Denault study, relied on by the majority, clearly defines the term "blind trial" as a test in which the investigator has no knowledge of the identity of the tested samples. Denault, supra, p 485.
The whole purpose of the test, then, is to achieve results without the experimenter knowing beforehand what those results should be. Clearly, a blind trial, if conducted properly and absent fraudulent practices not in evidence in the Wraxall test, precludes manipulation whether performed by Denault or Wraxall.
While this testing, if taken alone, may not be adequate evidence to prove the reliability of the system, I question the conclusion that blind tests initiated but not performed by those who developed a system are unreliable per se.
The majority claims that the findings of a panel convened to review Dr. Grunbaum's criticisms of Wraxall's study were not entered into evidence and that the prosecution and defense disagree about what the panel concluded. In fact, the panel findings were entered into evidence as People's Exhibit 3 along with a letter from the Associate Director for Service and Technology for the LEAA which stated that "no evidence was found to substantiate Dr. Grunbaum's allegations. . . ." Discussion of the report at trial between the prosecution and Dr. Grunbaum details the gravamen of the "controversy" alleged by the majority.
Q. Are you familiar with a letter written to Mr. J.L. Morgan on September 11, 1979, as Senior Contract Administrator, Beckman Instruments, in which Mr. Morgan was advised that the review group examining the allegations made by yourself, they found no evidence or — excuse me — no evidence was found to substantiate Dr. Grunbaum's allegations, although a number of minor discrepancies were noted; are you familiar with that letter?
A. I am familiar with that letter, yes, and I said that Mr. Kochanski did not tell the truth, because I have another letter from counsel of LEAA that says just the opposite.
Q. Mr. Kochanski, who is the Associate Director for Service and Technology, Office of Research Programs, U.S. Department of Justice was not telling the truth?A. That is correct.
* * *
Q. Doesn't it [the panel report], in fact, say that, "Although it is preferable to avoid personality conflicts, a consideration of that subject cannot be avoided in this case because it is the crux of the problem"?
A. This is what it says, but this is not the truth.Q. This is the panel's own report, is it not?
A. Unfortunately, they injected that.
Subsequent blind trial proficiency tests for laboratories using the multisystem and those using other systems were conducted by the Forensic Science Foundation from 1979 to 1983. The sum total error rate on individual marker analyses was 1.6 percent of 3107 total tests per protocol.
Since one marker exclusion between a stain and a blood sample being compared will exclude the donor as the contributor of the stain, the error rate per marker, not per stain, is the indicator of the system's reliability.
I also disagree with my colleagues' evaluation of Dr. Rachael Fisher's testimony with regard to the multisystem. Dr. Fisher was qualified as an expert and is on staff at Michigan State University in the Departments of Pediatrics and Pathology. She testified that she had run the enzymes in hundreds of different systems in her research on inherited diseases, had read the manual for the multisystem, and offered her opinion that the system incorporated all the features that "are necessary to make it work." She further stated that the protocols for EAD, PGM, GLO, EAP, and Hp are recognized and, in reply to the specific question, "If you had a dried bloodstain or a limited supply of blood, could you use a thin gel method and develop all three on that one thin gel?", she answered, "yes, one could be done certainly."
In any event if, as Dr. Grunbaum opined, there was a misapplication of the particular technique in the Young case, in my judgment this is an issue to be resolved by the trial court. As the Ninth Circuit noted in United States v Gwaltney, 790 F.2d 1378, 1382 (CA 9, 1986):
To the extent Gwaltney complains of the application of the procedure in this instance, he does so in the wrong forum. Criticism of the application of a valid test in a particular instance bears on weight, not admissibility.
I would affirm.
RILEY, J., concurred with BOYLE, J.