noting that “when a defendant seeks to introduce exculpatory evidence based on an alternative perpetrator theory, the court must still evaluate this evidence under the ordinary evidentiary rules as it would any other exculpatory evidence”
How later courts described this case
- noting that “when a defendant seeks to introduce exculpatory evidence based on an alternative perpetrator theory, the court must still evaluate this evidence under the ordinary evidentiary rules as it would any other exculpatory evidence”
- stating that a collection of information can provide probable cause, even if each individual fact does not
- rejecting a similarly broad definition of the term “victims,” noting that such a broad definition would lead to “absurd” results
- concerning whether the sister of a murder victim was entitled to restitution
Written by the judges who cited it.
The opinion
HANSON, Justice
(concurring).
I concur in the result but write separately to express the view that the court’s determination of some of the DNA issues is unnecessary and may have unintended ramifications for other cases.
The issues concerning DNA evidence are raised in an unusual procedural posture because Jones’ counsel, in the opening statement, admitted that the semen found in the vaginal swab from Linda Jensen was that of Jones. Later, Jones testified that he had been having an affair with Jensen and explained that the presence of his semen in Jensen was the result of consensual sex the afternoon before the murder. I would conclude that counsel’s admission and Jones’ affirmative testimony preclude his argument that any error in the 'admission of DNA evidence was prejudicial.
It is true that a defendant’s stipulation to the admissibility of evidence he was unsuccessful in suppressing does not generally constitute a waiver of the opportunity to argue that evidentiary issue on appeal. But Jones did not actually stipulate to the admissibility of the DNA evidence. Instead, he waived his Fifth Amendment right to not testify and provided affirmative testimony of a relationship with Jensen and a sexual episode that explained the presence of his semen. In so doing, Jones did not waive his right to argue that the DNA evidence should have been excluded, but he did waive his Fifth Amendment rights and his testimony rendered the DNA evidence moot. Jones may argue that he only waived his Fifth Amendment rights because of the court’s ruling on the DNA evidence, but I am not aware of any case law that would allow a defendant, after a failed attempt to suppress evidence, to make a conditional waiver of his Fifth Amendment rights, testify to his version of the facts, and then seek to reinstate his Fifth Amendment rights if the attempt to suppress evidence is successful on appeal.
Accordingly, I would not decide the specific challenges to the DNA evidence, but would reserve them for another day when we are presented with a better record, where defense counsel is motivated to cross-examine the state’s expert witnesses with greater intensity, and where the admission of the DNA results had a significant effect on the jury’s verdict.
Two of the challenges to the DNA evidence are particularly troubling because of the poorly developed record before us.
*27 First, the district court limited the Frye-Mack hearing to the second prong of foundational reliability, and the majority concurs in that limitation, because the first prong (general acceptance in the scientific community) was approved for PCR-STR testing in State v. Traylor, 656 N.W.2d 885, 891-93 (Minn.2003). But Traylor also discussed due process concerns that might prevent the admission of DNA evidence because of the refusal of the manufacturer of the DNA testing kits to provide access to the primer sequences and validation studies that underlie those kits. Id. at 898-900 . In rejecting Traylor’s constitutional argument, we relied on the existence of certain facts in the Traylor record that safeguarded against undue prejudice to Traylor. Id. at 900 .
For example, Traylor noted that samples of the questioned DNA remained after testing by the state that made it possible for Traylor to conduct independent tests to verify the accuracy of the state’s results. Id. We said: “Finally, and importantly, there was a portion of the DNA sample at issue available for Traylor to perform his own tests, an opportunity Traylor did not pursue.” Id. The record before us reveals that some of the vaginal sample taken from Linda Jensen was exhausted by testing in 1992 (using the Restricted Fragment Length Polymorphism method) and the balance of the sample appears to have been exhausted by PCR STR testing in 1999.
Further, Traylor presented a situation where the PCR-STR testing consisted of two parts, the Profiler Plus kit and the Cofiler kit. Id. at 890 . The Profiler Plus kit typically examines 10 loci and the Cofi-ler kit typically examines 3 additional loci. Here, the BCA could not get any interpretable results from the Cofiler kit, for reasons that are not fully explained in the record. Thus, the state’s expert based his opinions on the results of 10 loci, not the 13 normally present in PCR-STR testing. Jones does not present a due process argument here. But, because we do not need to do so, I would not treat Traylor as having judicially precluded due process challenges for all PCR STR testing.
Second, at least one significant issue was presented concerning the Frye-Mack second prong of foundational reliability, involving the use of a Bunsen burner to heat the smear slide to loosen the mounting media by which the cover slip was adhered. Jones argues that this procedure is not an approved protocol and its reliability has not been confirmed by validation studies. The BCA expert, James Iverson, testified only that he had successfully used this process one other time and did not address whether separate validation is required by DAB standards.
Perhaps this issue was made moot by the ability of the BCA to present interpretable results at all 10 loci examined by the Profiler Plus kit. The testimony was that heat could only degrade the sample, not change it, and it could be argued that obtaining interpretable results at all 10 loci shows that the sample was not materially degraded. But we are left with the mystery of the Cofiler kit. Was the inability to get interpretable results from that kit due in some measure to degradation of the sample as the result of heat? Absent a clear answer to that question, I would not read this decision as approving the use of Bunsen burner heat to remove a cover slip from a slide or to extract a sample from a slide. Where greater degradation has been shown, as evidenced by the inability to produce interpretable results at a significant number of loci, some further validation of the process in a prong two Frye-Mack hearing may well be required.