CSSB 13(JUD): "An Act relating to the admissibility into evidence of deoxyribonucleic acid (DNA) profiles in civil and criminal proceedings; amending Rules 702(a) and 703 of the Alaska Rules of Evidence to modify the rule relating to the basis or foundation for the admissibility of expert opinion testimony that is based on scientific evidence as it relates to DNA profile evidence; and amending Rule 403 of the Alaska Rules of Evidence."
00CS FOR SENATE BILL NO. 13(JUD) 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 Rule 403 of the 06 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 the legislature recognizes the importance of this 02 scientific breakthrough in providing a reliable and accurate tool for the investigation and 03 prosecution 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 condition 08 the introduction of that testimony on the degree of its validation within the community, that 09 is, to its general acceptance by experts in the relevant scientific field; 10 (5) under the court decisions, trial courts are empowered to evaluate the quality 11 of expert witnesses' opinions and to exclude opinions that have not achieved general 12 acceptance in the scientific community; 13 (6) the ability of a trial court to exclude opinion evidence that has not achieved 14 general acceptance in the scientific community may prohibit introduction and consideration 15 of DNA profile evidence and testimony based on experimental scientific information that 16 could be useful to the trier of fact; and 17 (7) to better assure that relevant DNA profile evidence may be considered, the 18 "general acceptance" principle for admissibility of scientific testimony should be replaced and 19 a more flexible 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, a case-by-case determination of "general acceptance" 24 underlying scientific evidence as a precondition to the admissibility of scientific evidence in 25 a criminal or civil action, a principle first enunciated in Frye v. United States, 293 F. 1013 26 (D.C. Cir. 1923) and adopted for the courts of this state in Pulakis v. State, 476 P.2d 474, 478 27 (Alaska 1970). In its place, for DNA evidence, the legislature opts to substitute the 28 comparable rule applicable to the introduction of scientific evidence in cases in the federal 29 courts. That standard was announced in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 30 U.S. --, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993). Under the Daubert standard, the reliability 31 of scientific evidence is to be determined based on the evidence's scientific validity without
01 reference to the quality of expert opinion, and without the qualifying condition that an expert 02 opinion that has not achieved general acceptance in the scientific community must be 03 excluded. 04 * Sec. 2. AS 09.25 is amended by adding a new section to read: 05 Sec. 09.25.300. ADMISSIBILITY OF DNA PROFILES. (a) In a civil action 06 or proceeding, the evidence of a DNA profile is admissible to prove or disprove any 07 relevant fact. 08 (b) A party seeking to introduce the evidence of a DNA profile shall 09 (1) notify all other parties in writing, on or before a date determined by 10 order or rule of the court, of the party's intention to introduce the evidence; and 11 (2) provide all other parties, on or before a date determined by order 12 or rule of the court, copies of the DNA profiles and the report or statement of the 13 profile to be introduced. 14 (c) If the notice required by (b) of this section is not timely provided and a 15 party attempts to introduce the evidence, the court may, in its discretion, either allow 16 the opposing party a continuance or, under appropriate circumstances, bar the party 17 from presenting the evidence. 18 (d) If a party to whom notice is given under (b) of this section intends to 19 object to the admissibility of the DNA profile, the party shall give written notice of 20 the objection on or before the date determined by order or rule of the court. 21 (e) In this section, 22 (1) "deoxyribonucleic acid" or "DNA" means the molecules in all 23 cellular forms that contain genetic information in a patterned chemical structure for 24 each individual; 25 (2) "DNA profile" means an analysis of deoxyribonucleic acid material 26 in a human sample of blood, semen, tissue, or other DNA-bearing cells resulting in the 27 identification of the individual's patterned chemical structure of genetic information. 28 * Sec. 3. AS 12.45 is amended by adding a new section to read: 29 Sec. 12.45.035. ADMISSIBILITY OF DNA PROFILES. (a) In a criminal 30 action or proceeding, the evidence of a DNA profile is admissible to prove or disprove 31 any relevant fact.
01 (b) A party seeking to introduce the evidence of a DNA profile shall 02 (1) notify all other parties in writing, on or before a date determined 03 by order or rule of the court, of the party's intention to introduce the evidence; and 04 (2) provide all other parties, on or before a date determined by order or 05 rule of the court, copies of the DNA profiles and the report or statement of the profile 06 to be introduced. 07 (c) If the notice required by (b) of this section is not timely provided and a 08 party attempts to introduce the evidence, the court may, in its discretion, either allow 09 the opposing party a continuance or, under appropriate circumstances, bar the party 10 from presenting the evidence. 11 (d) If a party to whom notice is given under (b) of this section intends to 12 object to the admissibility of the DNA profile, the party shall give written notice of 13 the objection on or before the date determined by order or rule of the court. 14 (e) In this section, 15 (1) "deoxyribonucleic acid" or "DNA" means the molecules in all 16 cellular forms that contain genetic information in a patterned chemical structure for 17 each individual; 18 (2) "DNA profile" means an analysis of deoxyribonucleic acid material 19 in a human sample of blood, semen, tissue, or other DNA-bearing cells resulting in the 20 identification of the individual's patterned chemical structure of genetic information. 21 * Sec. 4. Rule 702(a), Alaska Rules of Evidence, is amended to read: 22 (a) If scientific, technical, or other specialized knowledge will assist the trier 23 of fact to understand the evidence or to determine a fact in issue, a witness qualified 24 as an expert by knowledge, skill, experience, training, or education, may testify thereto 25 in the form of an opinion or otherwise. In the case of expert testimony that is based 26 upon a scientific theory or technique to support the admission of evidence of or 27 based upon a deoxyribonucleic acid (DNA) profile, the court may not admit the 28 evidence unless the court finds that the theory or technique in question is 29 scientifically valid for the purpose for which it is applied. 30 * Sec. 5. Rule 703, Alaska Rules of Evidence, is amended to read: 31 Rule 703. BASIS OF OPINION TESTIMONY BY EXPERTS. The facts or
01 data in the particular case upon which an expert bases an opinion or inference 02 (1) may be those perceived by or made known to the expert at or 03 before the hearing; 04 (2) [. FACTS OR DATA] need not be admissible in evidence; and 05 (3) [BUT] must be of a type reasonably relied upon by experts in the 06 particular field in forming opinions or inferences upon the subject; however, when 07 used to support the admission of evidence that is based on a deoxyribonucleic acid 08 (DNA) profile, the facts or data that relate to and support an expert opinion or 09 inference as to scientific knowledge need not be sufficiently established to have 10 become generally accepted in the particular field to which the facts or the data 11 belong. 12 * Sec. 6. AS 09.25.300, added by sec. 2 of this Act, and AS 12.45.035, added by sec. 3 13 of this Act, have the effect of amending Rule 403, Alaska Rules of Evidence, by determining 14 that, when offered in civil and criminal actions and proceedings, DNA profile evidence has 15 probative value and that its probative value outweighs the danger of unfair prejudice.