00 SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 52 01 "An Act relating to the admissibility into evidence of deoxyribonucleic acid (DNA) 02 profiles in civil and criminal proceedings; amending Rules 702(a) and 703 of the 03 Alaska Rules of Evidence to modify the rule relating to the basis or foundation 04 for the admissibility of expert opinion testimony that is based on scientific 05 evidence as it relates to DNA profile evidence; and amending Rules 401, 403, and 06 705 of the Alaska Rules of Evidence." 07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 08 * Section 1. LEGISLATIVE FINDINGS AND STATEMENT OF PURPOSE. (a) The 09 legislature finds that 10 (1) recent developments in molecular biology and genetics have important 11 applications for forensic science; it has been scientifically established that there is a unique 12 pattern to the chemical structure of the deoxyribonucleic acid (DNA) contained in each cell 13 of the human body; the process for identifying this pattern is called "DNA identification"; 14 (2) the accuracy of identification provided by this method is superior to that 01 of any presently existing technique and recognizes the importance of this scientific 02 breakthrough in providing a reliable and accurate tool for the investigation and prosecution 03 of crimes; 04 (3) scientific evidence provides an increasingly critical source of information 05 in civil and criminal litigation; 06 (4) court decisions guiding the admissibility of scientific evidence in the state 07 courts impose a requirement on the introduction of expert scientific testimony that conditions 08 the introduction of that testimony on a degree of its validation within the community, that is, 09 to its general acceptance by experts in the relevant scientific field; under those court decisions, 10 trial courts are empowered to evaluate the quality of expert witnesses' opinions and to exclude 11 opinions that have not achieved general acceptance in the scientific community; 12 (5) the ability of a trial court to exclude opinion evidence that has not achieved 13 general acceptance in the scientific community may prohibit introduction and consideration 14 of evidence and testimony based on experimental scientific information that could be useful 15 to the trier of fact; and 16 (6) to better assure that relevant evidence based on emerging scientific 17 techniques and processes of debatable reliability may be considered, the "general acceptance" 18 principle for admissibility of scientific testimony should be replaced and a more flexible 19 approach to the use of opinion testimony should be adopted. 20 (b) In amending Alaska Rules of Evidence 702(a) and 703 in secs. 4 and 5 of this 21 Act, it is the purpose of the legislature to change the appropriate standard for the admissibility 22 of DNA evidence in civil and criminal proceedings. The legislature's amendment of this rule 23 would eliminate, as to DNA evidence, the principle of "general acceptance" underlying 24 scientific evidence as a precondition to the admissibility of scientific evidence in a criminal 25 or civil action, a principle first enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 26 1923) and adopted for the courts of this state in Pulakis v. State, 476 P.2d 474, 478 (Alaska 27 1970). In its place, the legislature opts to substitute the comparable rule applicable to the 28 introduction of scientific evidence in cases in the federal courts. That standard was announced 29 in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. --, 125 L.Ed.2d 469, 113 S.Ct. 30 2786 (1993). Under the Daubert standard, the reliability of scientific evidence is to be 31 determined based on the evidence's scientific validity without reference to the quality of 01 expert opinion, and without the qualifying condition that an expert opinion that has not 02 achieved general acceptance in the scientific community must be excluded. 03 * Sec. 2. AS 09.25 is amended by adding a new section to read: 04  Sec. 09.25.051. ADMISSIBILITY OF DNA PROFILES. (a) In a civil action 05 or proceeding, the evidence of a DNA profile is admissible to prove or disprove the 06 identity of a person. 07  (b) In this section, 08  (1) "deoxyribonucleic acid" means the molecules in all cellular forms 09 that contain genetic information in a patterned chemical structure for each individual; 10  (2) "DNA profile" means an analysis that uses the restriction fragment 11 length polymorphism analysis of deoxyribonucleic acid material in a human sample 12 of blood, semen, tissue, or other DNA-bearing cells resulting in the identification of 13 the individual's patterned chemical structure of genetic information. 14 * Sec. 3. AS 12.45 is amended by adding a new section to read: 15  Sec. 12.45.035. ADMISSIBILITY OF DNA PROFILES. (a) In a criminal 16 action or proceeding, the evidence of a DNA profile is admissible to prove or disprove 17 the identity of a person. 18  (b) In this section, 19  (1) "deoxyribonucleic acid" means the molecules in all cellular forms 20 that contain genetic information in a patterned chemical structure for each individual; 21  (2) "DNA profile" means an analysis that uses the restriction fragment 22 length polymorphism analysis of deoxyribonucleic acid material in a human sample 23 of blood, semen, tissue, or other DNA-bearing cells resulting in the identification of 24 the individual's patterned chemical structure of genetic information. 25 * Sec. 4. Rule 702(a), Alaska Rules of Evidence, is amended to read: 26  (a) If scientific, technical, or other specialized knowledge will assist the trier 27 of fact to understand the evidence or to determine a fact in issue, a witness qualified 28 as an expert by knowledge, skill, experience, training, or education, may testify thereto 29 in the form of an opinion or otherwise.  However, when expert testimony that is 30 based upon a scientific theory or technique is used to support the admission of 31 evidence of or based upon a deoxyribonucleic acid (DNA) profile, the court may 01 not admit the evidence if the court finds that the theory or technique in question 02 is scientifically valid for the purpose for which it is applied. 03 * Sec. 5. Rule 703, Alaska Rules of Evidence, is amended to read: 04  Rule 703. BASIS OF OPINION TESTIMONY BY EXPERTS. The facts or 05 data in the particular case upon which an expert bases an opinion or inference 06   (1) may be those perceived by or made known to the expert at or 07 before the hearing; 08  (2) [. FACTS OR DATA] need not be admissible in evidence; and 09  (3) [BUT] must be of a type reasonably relied upon by experts in the 10 particular field in forming opinions or inferences upon the subject; however, when 11 used to support the admission of evidence that is based on a deoxyribonucleic acid 12 (DNA) profile, the facts or data that relate to and support the expert opinion or 13 inference as to scientific knowledge need not be sufficiently established to have 14 become generally accepted in the particular field to which the facts or the data 15 belong. 16 * Sec. 6. AS 09.25.051, added by sec. 2 of this Act, and AS 12.45.035, added by sec. 3 17 of this Act, have the effect of amending 18 (1) Rules 401 and 403, Alaska Rules of Evidence, by determining that, when 19 offered in civil and criminal actions and proceedings, DNA profile evidence has probative 20 value and that its probative value outweighs the danger of unfair prejudice; 21 (2) Rule 705, Alaska Rules of Evidence, by eliminating a requirement that the 22 court require or allow antecedent expert testimony concerning the reliability of DNA profiles 23 as a method of identification prior to its receipt into evidence in the action or proceeding.