ORDER ON DEFENDANT'S MOTION IN LIMINE
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
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:
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.
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.
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").
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).
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
opined that Sample 3Q.A contained DNA from more than one
individual. (T at 16).
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).
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).
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 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).
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. (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.
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 ...