Legislature(1995 - 1996)
02/22/1995 01:07 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HJUD - 02/22/95 SSHB 52 - DNA EVIDENCE IN CIVIL AND CRIMINAL TRIALS Number 470 REPRESENTATIVE GREEN, sponsor of the bill, introduced it, saying it would allow the introduction of DNA as one of the pieces of information used in a trial. By no means would it be the make or break piece of evidence, but it would be allowed in addition to other evidence, to help establish the guilt or innocence of an individual. Number 489 LISA MOCK, Legislative Aide to Representative Joe Green read the sponsor statement: "In recent years, the Alaska Legislature has invested significant amounts of money to create one of the best state forensic crime labs in the country. A substantial portion of those dollars has gone into state-of-the-art deoxyribonucleic acid (DNA) analysis equipment and experts. Having now made the scientific investment, it is time for the Legislature to ensure that DNA evidence can routinely be heard by Alaskan juries. "DNA analysis involves the comparison of the unique genetic coding found on chromosomes in samples of body fluids. Since the mid- 1980s, DNA analysis increasingly has been used to match samples of body fluids found at crime scenes with those of suspects. If the samples match, the laboratory then determines the probability that the samples could have come from someone other than the defendant. "Scientific testimony is often the deciding factor for the judicial resolution of civil and criminal cases. To test for the admissability of scientific evidence such as DNA, Alaskan courts have used the Frye test since 1970. Under the Frye test, in order for scientific evidence such as DNA to be admitted in Alaskan cases, the court must determine whether there is a general consensus in the relevant scientific community that the scientific testimony is reliable. This is sometimes called the "general acceptance" test. "The problem with the Frye test is that is uses a social standard -- general consensus -- rather than a scientific standard. The Frye test makes it nearly impossible, and outrageously expensive, for an Alaskan judge to determine in each individual case what constitutes a general, national scientific consensus. "Furthermore, the Frye test results in very high court costs. In order to meet the standards of Frye, there are frequently repetitive hearings involving similar expert testimony. For example, in September 1994, a DNA hearing for a murder case in Anchorage cost the state between $10,000 and $20,000 to provide four DNA experts from laboratories in North Carolina, California, and Oregon. "If enacted, HB 52 would enable the court to first determine if the evidence is relevant, then weigh the evidentiary value against the prejudicial effect the evidence may have on the defendant's case. Passage of HB 52 would allow the court to make a preliminary assessment as to whether the underlying reasoning or methodology of the DNA testing is scientifically valid and if it can be applied to the cases at issue. The inquiry is flexible, and more importantly, focuses on scientific validity, not general consensus. If the principles, methodology, and reasoning are scientifically valid, then it follows that the inferences, assertions, and conclusions derived therefrom are scientifically valid as well. "HB 52 would provide a flexible and more lenient test that favors the admission of any scientifically valid expert testimony. The ongoing debate over DNA testing underscores the need to deal more effectively with the difficulties that arise whenever complex scientific technology is introduced as evidence in a court of law. I strongly urge the Alaska Legislature to pass HB 52." Number 560 REPRESENTATIVE TOOHEY made a motion to adopt Version M as the work draft. Seeing no objection, it was so ordered. Number 580 MR. GUANELI discussed the legal aspects. He explained the changes that have been made through the different versions of the committee substitute. Essentially what this addresses is the standard for admissability. Definitions of what DNA profile means, as was just explained, turns on this scientific validity of the evidence, rather than on some other more difficult standard, such as general acceptance in the relevant scientific community. Part of the question about DNA evidence is that it is a rapidly changing field. There are labs all across the country doing work in the DNA field and there are universities all across the country that are studying the statistics on which the probabilities are based. The research is rapidly expanding through use of computers, but the relevant scientific community that may use this type of evidence has a hard time keeping up with the development of this testing, and therefore the cutting edge of the field, which is certainly scientifically valid, and some of the world's foremost experts will testify to that effect; it really has not trickled down yet to the general scientific community. That is the problem in using this test that the courts now use which dates from the 1920s. MR. GUANELI said the United States Supreme Court has adopted a test based on scientific validity, and certainly for DNA evidence, which is a modern, and rapidly changing field, it is appropriate to use a more modern type of test for scientific evidence. That is what this does. He clarified the costs of the experts in that trial were not between $10,000 and $20,000; they were over $20,000. Mr. Guaneli approved those bills for payment. They had the same kind of costs in a murder/rape case in Fairbanks, where there were extensive hearings in front of the judge, and the judge wrote a long opinion, and the case is up on appeal now. There are limitations the Alaska courts have placed on the admissibility of this evidence under that old test. The courts will not, under the old test, allow the experts to state that based on the best scientific testing, the probabilities are one in a million that it could be somebody else. They will be able to testify that, based on other types of testing which are more accepted in the general scientific community, that the odds are four out of 100, or something like that. In some cases, that is good enough, and in other cases, it may not be. MR. GUANELI stated one of the primary uses of DNA evidence is to exclude individuals. It is very good at excluding other suspects. That not only protects innocent people, but it also helps the prosecution because a lot of times, particularly in murder cases, there is no witness, so it is a circumstantial case, and one of the best defenses at trial is to say some other person did it. The defense will point a finger at a number of people who may have been in the area at the same time and may have done it. By taking blood samples from those people, we can exclude them with 100 percent certainty. That is what happened in the Fairbanks case. A woman was killed in her home. The natural suspects, based on the investigation, were any number of men in the neighborhood. All of them except one gave a blood sample and were excluded. This is valuable evidence. MR. GUANELI wanted to clarify that when he had testified a couple of weeks ago about the DNA data bank, he indicated at the time, that as good as that bill was, it was really only answering half of the question. It is one thing to collect samples and to test those samples and identify suspects, it is another thing to use that evidence in court. This is the other half of the picture. Number 670 REPRESENTATIVE FINKELSTEIN used the example of a case where they are using DNA evidence and the defense is challenging the credibility. Is this argument going on before the judge or the jury? Does a jury make decisions on scientific sufficiency of DNA testing, or is it up to the judge? MR. GUANELI said the judge would determine if the evidence is allowed to get in front of the jury. And then, like any other evidence, it is for the jury to decide how much weight to give that evidence. He was not saying that by passing this bill, they will not have to pay experts to come in and give testimony. We will have to, because, in order for the jury to understand this evidence, and to view it as something other than a series of lines on a chart, we are going to have to bring in some chemists from the state crime lab who will be able to explain this to the jury. But the judge makes the initial determination as to whether the evidence is scientifically valid enough to go in front of a jury. Once that decision is made it is up to the jury to decide whether or not to give this information credibility, and that depends on the way the test was done, the way the evidence was collected, and that sort of thing. Number 690 REPRESENTATIVE FINKELSTEIN said that if it does get before a jury, the defense can still spend their time trying to discredit the scientific basis for the information, with or without this bill, correct? MR. GUANELI agreed. Number 695 LINDA BRANCHFLOWER, Alaska Peace Officers Association (APOA), testified via teleconference. She said she is a detective for the Anchorage Police Department and has worked with sex crimes for four years. DNA has been used by police agencies since 1986 to clear people as well as to convict them. For an analogy, fingerprinting was introduced in the Saint Louis World's Fair in 1901, and it only took five years to become widely accepted in American courts. The APOA feels this scientific procedure has been beneficial in courts all over the world, and you should not bow to the pressure of these criminal defenses bars, trying to keep a useful piece of evidence form the court room. Number 720 ARVID BJORNTON, member of the Board of Directors of (STAR), testified via teleconference. He is also a member of the Task Force on Sexual Assault and Domestic Violence in Anchorage. He wanted to bring to light the importance of DNA evidence in court cases to victims of violent crimes, especially sexual assault. The issue is usually one of consent. In one situation a person will say, "Yes I did it, and she was willing." On the other end of the spectrum is the person who will say, "I did not do it. I was not there. I do not know who she is." The admission of DNA evidence tends to show whether the suspect was at the scene of the crime or not. It saves a lot of time and money. Number 750 RANDALL BURNS, Alaska Civil Liberties Union (ACLU), said the group is not opposed to the use of DNA evidence. They did have concerns about the validity of its uses. "The admission of the DNA profile does not require a finding of general acceptance in the relevant scientific community of DNA profile evidence.", is a very strange sentence to have in a statute. What we are saying is we do not really think it has to be generally acceptable on scientific principles in order to establish potential guilt or innocence in a case. It is a strange thing to say that we do not care that it is not generally accepted or that it is scientifically valid. We are talking about the taking away the freedom of or the incarceration of an individual, based on DNA evidence. Before we rush into a debate on the value of science, we need to recognize that the O.J. Simpson case has shown us that there are lots of disputes, not necessarily about the process of the DNA test itself, but about the way in which the samples are collected, the validity of the labs and the testing they are doing, and the kinds of calculations made in determining validity of evidence. This bill says nothing about ensuring us the DNA samples used were collected properly, maintained properly at the lab, and that is a concern. MR. BURNS did not generally oppose DNA testing, but wanted to see that there were assurances about procedures used. Number 827 REPRESENTATIVE FINKELSTEIN saw Mr. Burns' point, and also thought there could be a clearer way to say it. TAPE 95-16, SIDE A Number 000 CHAIRMAN PORTER said the standard they would not like to meet, is the situation that gets you to go get five experts who are so behind the power curve on this technology, that they will say, "No, this is not generally excepted. I have never heard of it." Of course, they have not opened a book in ten years either, but you can always do that, and it will take years to get through a trial if that is the way you have to operate. If you have an expert that says, "This is invalid because of this," and "That is relevant and can be admitted," the judge then gets to say whether it is relevant. MR. GUANELI felt that accurately summarizes the intent of what we are trying to do. We want you to use the standard that has been adopted by the United States Supreme Court, which is the scientific validity standard. The second sentence says that what we mean by that is we do not want you to go back to using the old test. Because if a judge wants to interpret the phrase, "scientifically valid" in a way that is really the old way of doing it, requiring some consensus, we could end up back where we started because in Section 3, this can amend a court rule to the extent that would limit the admissibility; and the reason we are doing that is because we want to overturn this case. This section is not going to be in the statutes anywhere. It needs to be set in statute saying we do not want you going back to your old test, because it really does not fit this kind of evidence anymore. That is the reason why the two sentences are in there. REPRESENTATIVE GREEN said we are going to allow the Dalbert test, and not have to use the Frye test. That is really all it is saying. REPRESENTATIVE BUNDE made a motion to move the bill out of committee, with zero fiscal notes and individual recommendations. Seeing no objection, it was so ordered.