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State v. Smith

Superior Court of Maine, Kennebec

July 5, 2017

STATE OF MAINE
v.
ARNOLD SMITH JR., Defendant

          ORDER ON DEFENDANT'S MOTION IN LIMINE

          ROBERT E. MULLEN, DEPUTY CHIEF JUSTICE.

          A hearing was conducted on February 3, 2017 with respect to the Defendant's Motion In Limine filed 4/6/16 to exclude certain expert testimony of the State's expert Christine Waterhouse (hereinafter "CW") with regard to certain analysis conducted by CW on grounds that "the methodology employed (by CW) is not scientifically reliable...", see aforementioned Motion for more details. After conducting the hearing the Court gave counsel until 2/27/17 to submit post-hearing memoranda. Counsel then requested an extension of time to submit memoranda, and the Court agreed to reset the deadline for 5/26/17. Unfortunately both counsel ultimately decided not to submit any memoranda and did not notify the Court of their decision until approximately three weeks ago, hence the five month delay between hearing and this Order.

         In any event, after the Court has had the opportunity to review its notes taken during the hearing, the transcript of the hearing, and the exhibits admitted into evidence along with pertinent case law, the Court makes the following Findings of Fact and Conclusions of Law upon which the Order set forth below is based:

         1. The Defendant is charged with Aggravated Criminal Trespass, Class C, and Unlawful Sexual Contact, Class C, the offenses allegedly occurring on or about 4/18/15 in Vassalboro, Maine.

         2. At this hearing State called only one witness, CW, who testified that she has been a forensic DNA analyst at the Maine State Police Crime Office for nearly 10 years. The defense agreed CW is an expert in DNA analysis.

         3. CW was provided with a "known sample" of the complainant's DNA and came up with a DNA profile. CW also was provided with a known sample of the Defendant's DNA and came up with a DNA profile for him as well. (Hearing Transcript at 11, hereinafter "T").

         4. CW was also provided with a known sample of the complainant's boyfriend's DNA and subsequently came up with a DNA profile for him as well. (T at 13).

         5. Additionally there was a "swab sample" taken from scratches on the complainant's back that was subsequently analyzed to search for DNA evidence. This swab sample was referred to as "Sample 3Q.A" at the hearing. (T at 11).

         6. CW opined that Sample 3Q.A contained DNA from more than one individual. (T at 16).

         7. CW conducted an analysis to determine whether there was present in Sample 3Q.A evidence of DNA from the individuals mentioned above, or as CW testified "(T)hat's how I picture it, is evaluation of the forensic unknown sample and then comparison to your known samples to determine whether or not somebody might be included or excluded as potential donor to that mixture of samples..." (Tat32).

         8. CW also opined that Sample 3Q.A is consistent with being from three individuals, but she could not say that the sample might not be from more than three people. (T at 32, 50).

         9. As the undersigned understands it, the thrust of the defense motion is to suggest that the Combined Probability of Inclusion ("CPI") method to analyze samples of complex DNA mixtures[1] is not foundationally valid (T at 110) and whose value is questionable at best. Instead, analyzing such mixtures should go forward with the "probabilistic genotyping software" recommended by the defense expert, Professor Keith Inman of Cal State (East Bay). At a minimum, the defense contends that such software is the "superior method" to calculate a complex DNA mixture. (T at 53). CW argued that analyzing a DNA mixture by using CPI versus using the software espoused by defense counsel is asking a different question with a different answer. (T at 60). CW also opined that the Defendant should be considered as a "potential donor" to the mixture of DNA profiles obtained from the swab samples taken from the back of the complainant. (T at 76).

         11. The Defendant's expert Professor Inman opined that the State's methodology of analyzing Sample 3Q.A resulted in the State being "incapable" of providing "a valid weight to any sort of inclusion" (T at 93), and that it was not reliable "for this profile." (T at 108). Professor Inman, however, acknowledged notwithstanding his dim view of the utility of CPI that "there are lots of crime lab people who would say that CPI is valid." (T at 117). Moreover, although CPI is not used in Europe, it is the most commonly used method in the Americas, Asia, Africa, and the Middle East to assign the weight of evidence where a probative profile is obtained from an evidentiary sample.[2] (T at 127). However, Professor Inman was firm in his opinion, shared by various peer-reviewed literature, that the CPI is not an appropriate statistic to use when expressing the significance of including an individual as a possible contributor to a complex DNA sample. Defendant's Exhibit 2 at page 4.

         12. Expert testimony must "meet a threshold level of reliability" and must (1) be relevant in accordance with M.R. Evid. 401, and (2) assist the trier of fact in understanding the evidence or determining a ...


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