State v. Joon Kyu Kim

KELLEY, Justice

(dissenting):

With utmost reluctance, I respectfully dissent. If our cases of State v. Carlson, 267 N.W.2d 170 (Minn.1978) and State v. Boyd, 331 N.W.2d 480 (Minn.1983) were correctly decided, without question stare decisis dictates the result here reached by the majority. Carlson is less than nine years old and Boyd is slightly over three. Both decisions were decided by a unanimous court. Normally, desired stability in the law is seldom enhanced by calling into question the correctness of precedents. Especially is that true when the questioned precedents are of such recent vintage. 1 My reluctance to pen this dissent is prompted not only by that laudatory and necessary stare decisis consideration, but additionally because I joined with the remainder of the court in State v. Boyd. However, no violence is done to that laudatory and venerable doctrine of stare decisis when we re-examine a ruling that appears to be clearly wrong; nor is any valid public purpose promoted by embedding in our body of law an incorrect or outmoded decision. Further study and consideration of the issues in those two cases convinces me that both were wrongly decided.

This court in both State v. Carlson and State v. Boyd, and the majority in the instant case, relied upon an article written by Professor Tribe entitled Trial by Mathematics, 84 Harv.L.Rev. 1329 (1971). In my opinion, the conclusions reached by Professor Tribe in that article in 1971 have since *552 been successfully challenged by other researchers. See, e.g., Stripinis, Probability Theory and Circumstantial Evidence: Implications From a Mathematical Analysis, 22 Jurimetrics J. 59 , 75-78 (1981); see also Saks and Kidd, Human Information Processing and Adjudication: Trial by Heuristics, 15 Law & Soc’y 123, 124 (1980-1981). Moreover, the assumptions upon which Tribe based his conclusions, in my opinion, have been fairly rebutted by other writers. See, e.g., Saks and Kidd, supra at 124-26, 145-51.

In a criminal case, we are concerned that no conviction shall be upheld unless guilt has been established beyond a reasonable doubt. In any system of criminal justice, a convicted person will necessarily be convicted on something less than absolute proof. Indeed, because in almost every case some doubt does exist, the law uses the expression “beyond a reasonable doubt” instead of “beyond any doubt.” Thus, jurors routinely use probabilities in assessing whether the state has met its evidentiary burden. As demonstrated by Stripinis, “[i]f the probability of the accused being innocent is one in one trillion, then most people [jurors] would agree that he is ‘guilty beyond a reasonable doubt.’ ” Stripinis, supra, at 76. Thus, he points out the truism that the determination is a quantifiable solution, and that not all jurors will agree on what quantity of doubt constitutes a “reasonable doubt.” The question is whether it is preferable to submit to the jury properly established scientific and mathematical probabilities of the existence of a fact to bear on its decision-making process than to ignore reality by asserting people are convicted only when absolute proof is available when, in fact, absolute proof is rarely, if ever, at hand. Therefore, I conclude with Saks and Kidd that “exclusion of mathematical guides to aid a fact finder, while avoiding some problems, exposes the fact-finding process to the heuristic biases of intuitive decision making.” Saks and Kidd, supra, at 123.

I suggest that notwithstanding a recent consideration of the issue in State v. Carlson and State v. Boyd, the time may now have come for us to reconsider those holdings. Just a few years short of the 21st century, perhaps courts should utilize those kinds of empirical, mathematical, scientific and statistical analyses used by all sorts of professional people including those in science, industry, engineering, administration, education and planning. See, e.g., E. Cleary, McCormick on Evidence § 210, at 651 (3d ed. 1984).

Our case of State v. Carlson is one of the few cases that can be found excluding computations that the court considered well-founded. We there held it was error to admit a probability “based on empirical scientific data of unquestioned validity.” 267 N.W.2d 170, 176 (Minn.1978). That case is precedent for this case. We must follow State v. Carlson unless we feel on further reflection that it is manifestly and wrongly decided. I submit it was. Instead, I agree with the Utah court when it said in rejecting our holding in State v. Carlson, “[We do] not share that philosophy, having a higher opinion of the jury’s ability to weigh the credibility of such figures when properly presented and challenged.” State v. Clayton, 646 P.2d 723 , 727 n. 1 (Utah 1982); see also E. Cleary, McCormick on Evidence § 210, at 655 (3d ed. 1984).

In my view the specific facts of this case demonstrate the shortcomings of excluding empirical scientific evidence. The proffered evidence involves the use of population frequency statistics in conjunction with individualization typing-test results. Based upon Boyd , the majority sustains the court’s ruling permitting introduction of the test results but excluding the population frequency statistics. I concur with one authority in this general area when he noted:

[Interpretation of individualization typing results is intimately tied to population frequency statistics; without being provided the appropriate statistical information, the triers of fact have no rational basis for deciding the significance of a type-for-type match.

*553 Sensabaugh, Biochemical Markers of Individuality, in Forensic Science Handbook 338, 403 (R. Safenstein ed. 1982). Courts of other jurisdictions addressing the issue are increasingly recognizing the necessity of providing the fact finder with both the test results and the population frequency statistics. See, e.g., Davis v. State, 476 N.E.2d 127, 135-36 (Ind.Ct.App.1985) (noting that the approach taken by Carlson and Boyd “has been rejected by an impressive myriad of courts and commentators.”); State v. Washington, 229 Kan. 47, 59 , 622 P.2d 986, 995 (1981).

I agree. In my view, not to permit this evidence evinces on our part a distrust of both the abilities of the bar to demonstrate any weaknesses in analysis as well as our distrust of the ability of the jury to consider empirical scientific and mathematical statistical evidence with the same discrimination that it has to use, for example, in considering the opinion of a psychiatrist that the accused is insane.

Accordingly, even though with reluctance, I would reverse the trial court and overrule State v. Carlson and State v. Boyd.

. See, e.g., Smith v. Allwright, 321 U.S. 649, 669 , 64 S.Ct. 757, 768 , 88 L.Ed. 987 (1944) (Roberts, J., dissenting); Cochran v. Keeton, 287 Ala. 439 , 252 So.2d 313, 318-19 (1971) (Lawson, J., dissenting).