# United States v. Porter > District of Columbia Court of Appeals · December 22, 1992 · 618 A.2d 629 URL: https://www.frixlaw.com/law-library/cases/9746944 ## Case - **Full name:** UNITED STATES, Appellant, v. Kevin E. PORTER, Appellee - **Court:** District of Columbia Court of Appeals - **Decided:** December 22, 1992 - **Citations:** 618 A.2d 629; 1992 D.C. App. LEXIS 323; 1992 WL 381836 - **Precedential status:** Published - **Opinion:** Dissent by Mack - **Judges:** Steadman, Schwelb, Mack - **Cited by:** 58 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9746944 ## How later opinions describe it (automated extraction) - concluding that because Frye "general acceptance" test focuses "on counting scientists' votes, rather than [on] verifying the soundness of a scientific conclusion ... ., the very existence of [a] dispute precludes admission of the testimony." - concluding that the Frye test "begins — and ends — with... whether there is general acceptance of a particular scientific methodology, not an acceptance, beyond that, of particular study results based on that methodology." - concluding that "[a]ny failure by the scientists to adhere to the appropriate procedure is, of course, a proper subject of inquiry, but does not raise an issue which implicates, Frye." - holding DNA evidence inadmissible in the absence of valid probability calculations, but remanding for trial court to consider whether consensus existed for a “conservative” statement of the probability of a coincidental match ## Opinion text MACK, Senior Judge, dissenting: I would affirm the order of Judge Kennedy. I am tempted to say that I would do so for many of the reasons stated by the majority. However, since I emphatically disagree with the disposition of this case, I write to express my reasons. In vacating the order of Judge Kennedy, and remanding for consideration in light of the holding by another trial judge in another ease not before this panel (see United States v. Bridgett, 120 Daily Wash.L.Rptr. 1697, 1700-01 (D.C.Super.Ct. May 29, 1992)), my colleagues are issuing a polite invitation to Judge Kennedy to reverse himself in the interest of “a search for truth.” 1 I respectfully decline to join in that invitation because I believe (1) that Judge Kennedy correctly applied the standard, of Frye v. United States, 54 App.D.C. 46 , 293 F. 1013 (1923), that a scientific technique sought to be admitted must be sufficiently established to have gained general acceptance in the particular field in which it belongs, and (2) that he was correct in holding that the admission of DNA evidence, with its multifarious but integral facets, had not gained general acceptance with respect to a critical aspect and therefore should await further studies. I also believe that the comprehensive report of the Committee on DNA Technology in Forensic Science (published by The National Research Council 2 in 1992) does not re *645 quire any other result, but in fact reinforces Judge Kennedy’s analysis with respect to the nonacceptance of the FBI’s methodology for calculating probabilities of guilt. See Committee on DNA Technology in Forensic Science, National Research Council, DNA Technology In Forensic Science (1992) [NRC Report], I. In my view, the existence of controversy between scientists negates the existence of general acceptance. If the suggested premature bent of my colleagues prevails in this jurisdiction, an unknowing Mr. Porter, an unsuspecting panel of jurors, and ultimately scores of hapless lawyers and judges will be engulfed in a sea of controversy. This is neither an answer to crime nor a wise use of potentially exciting resources of science. I reach this conclusion because the specific issue here is not whether a scientific “fingerprint” is admissible as evidence in a criminal trial; it is rather whether a computer-assisted mathematical computation designed to show the probability of guilt or innocence, and valid only if certain assumptions about the genetic structure of certain Census Bureau populations are in turn valid, is admissible, in the face of a bitter debate among distinguished population geneticists, and in the absence of any direct population studies of the conglomerate of races and ethnic groups (with subgroups) that make up America. The implication by my colleagues that the NRC Committee report (which this court can read for itself) requires vacation and remand is not warranted. The report does not disavow controversy but expressly concedes it. I read the interim suggestions and assumptions advanced by the Committee, as being made in the interest of trying to solve the controversy through compromise, not as indicating general acceptance. I read them as words of caution, not only directed to the jurisdictions which have, in unwarranted haste, committed themselves to the admissibility of DNA evidence but also to those jurisdictions which are considering the issue. Before I state my reasons for doing so let me briefly turn to the opinion which we are reviewing. II. I was impressed by Judge Kennedy’s immediate recognition of the difficulty of applying a Frye test to forensic DNA analysis — a task far more demanding than clinical analysis since it involved a feature (the making of “probability estimates”) which is completely foreign to clinical analysis. The complexity, he noted, stems from the fact that DNA evidence draws upon principles and technology from a number of different scientific spheres and implicates the study of history and sociology as well. It was the “assumptions” about population genetics that gave him cause for pause — assumptions made without convincing proof that Caucasians, Blacks, and Hispanics are homogeneously mixed populations without significant subgroups. The FBI’s failure to recognize diverse subpopulations, Judge Kennedy thought, could produce tremendous error. And because, he reasoned, the “probability feature” was at the very core of DNA evidence, such evidence was “at this time” inadmissible in the cases before him. III. The NRC study is a compendium of expert and extremely helpful commentary detailing the technical aspects of DNA analysis, its exciting possibilities, its complexity, and its immense power. It speaks to the advantages and disadvantages of present methodology (including that at issue here), and the implications attendant to its use by the legal system and to society as a whole. It candidly speaks of controversy with respect to sensitive and constitutional matters, and of the need for regulation. At the outset the report tells us what DNA is not. Comparing DNA profiles and latent fingerprints, the Committee notes, inter alia that where it exists, DNA evidence will often be more probative than fingerprints but that fingerprints are more highly individualized than the DNA profiles based on the present technology being used in forensic laboratories. NRC Report, *646 112-13. “Only when DNA technology is capable of sequencing the entire three billion basepairs of a person’s genome could a DNA pattern be considered to be as constant and complete as a fingerprint pattern.” Id. at 112 . More significantly, in what I see to be a confirmation of Judge Kennedy’s conclusion that the “probability feature” is at the very core of DNA evidence, the Committee notes “[t]o say that two [DNA] patterns match, without providing any scientifically valid estimate ... of the frequency with which such matches might occur by chance, is meaningless. The Committee recommends approaches for making sound estimates that are independent of the race or ethnic group of the subject.” Id. at 9 (emphasis added). The report suggests that courts, in jurisdictions without relevant statutes, judicially notice the appropriateness of the theoretical basis of DNA typing “by using this report, similar reports, and case law” and adds that “[a]s new methods are used the courts will have to assure themselves of their validity.” NRC Report, 145. It reviews the state and federal case law that has accepted or rejected the admissibility of such technology, including the opinion of Judge Kennedy in the instant case, and specifically offers advice to parties in the legal system as to pitfalls to be avoided. Id. at 146-47. If there is one recurring theme that surfaces again and again it is the suggestion that accuracy and reliability, and thus acceptability require methodology that is independent of the race and ethnic group of a subject. Significantly, in a clarifying foreword to the report, the Committee, apparently disturbed by what it characterized as a press “misrepresentation” 3 (subsequently corrected) stated its recommendation, “to avoid potential confusion,” that the use of DNA analysis for forensic purposes be continued, and that no moratorium be declared while the changes and improvements suggested in its report were being made. 4 I read this foreword as constituting guidance to the courts that have previously admitted DNA evidence. I also read the report and its recommendations for reform as confirming that the technology is still in a stage of discovery; 5 in my view it adds credence to Judge Kennedy’s ruling that the FBI’s method for calculating the “probability” of a coincidental match was not yet accepted as technically reliable, and reinforces the wisdom of the trial court’s caution in exercising judicial restraint in the absence of essential studies. I suggest that we, in what my colleagues describe as our “quintessentially appellate function,” should exercise the same caution. See *647 Ibn-Tamas v. United States, 455 A.2d 893, 895 (D.C.1983) (Gallagher, J., concurring). “[Sjcientifie evidence by its nature necessarily has a special impact on a jury. This is why the judiciary should proceed with reasonable caution, where the evidence comes as a new scientific theory, as distinguished from a well established field....” 6 Id. IV. What is this probability feature that is so critical to the validity of DNA technology in the forensic arena? It is, under the circumstances of the methodology sought to be used here, the “game” which my colleagues say a criminal trial is not. It is not a clinical analysis but a mathematical calculation based upon theoretical models. The FBI expert appearing before Judge Kennedy confirmed that he was not testifying that a DNA match resulted in a positive match or identification. In describing the steps taken to rule on the probability of obtaining a coincidental match in any one case, he spoke of preparing a profile data base from blood samples of a “particular population” (Caucasian, Black, Hispanic & American Indian), measuring the frequency of each category of “bands” in that sample population ... assuming the independence of each band and applying a multiplication rule. He used the example of a dice game to illustrate the process: 7 Let’s take a pair of dice. Each one, assuming they’re honest dice or die, is independent of the other. You throw one, you have one chance in six of getting a particular number. The same with the second. If you throw both of them together, you have one chance in 36 of getting two numbers, the same numbers, two sixes or two ones or whatever, because those are independent events. You multiply the frequency or the probability of one die becoming a six and the other die becoming a six and you generate a number one in 36. With genetics it’s slightly different because ... this profile can be obtained in two different ways. The top band can be from the mother and the bottom band can be from the father [or vice versa]. And so the profile frequency is determined by multiplying the frequency of one band which is six percent times the frequency of the second band which is five percent times two since these profiles can be obtained in two different ways. This number then in this example, .008, is the frequency of this two band profile. Assuming these are accurate numbers in the population. It’s equivalent to saying there is one individual in every hundred and twenty five that have this particular profile.[ 8 ] (Trial Transcript, Jan. 2, 3, 1991 at 128-29.) This multiplication exercise is commonly referred to as the “product rule.” *648 In 1763, a philosopher, Rev. Thomas Bayes suggested a mathematical formula for “Solving a Problem in the Doctrine of Chance,” a formula combining intuitive guesses with probabilities based on frequencies, see Prof. Tribe, 84 Harv.L.Rev. 1351 et seq, discussing Bayes’ Theorem. Reverend Thomas Bayes, An Essay Toward Solving a Problem in the Doctrine of Chance, Philosophical Trans, of the Royal Society (1763). See also NRC Report at 85. To my knowledge, our trial courts (at least prior to the time of the present controversy) have not been asked to admit testimony or argument employing the “product rule” in the weighing of evidence. Professor Tribe, in a highly technical and exhaustive analysis, uses a California case to illustrate the risk of seduction by mathematical probabilities. He suggests that “the relative obscurity that makes them at once impenetrable by the layman and impressive to him — creates a continuing risk that he will give such arguments a credence they may not deserve and a weight they cannot logically claim.” 84 Harv. L.Rev. at 1334. He concludes that overall (with possible defined exceptions) the costs of attempting to integrate mathematics into the fact-finding process of a legal trial outweigh the benefits. In the California case in question, the state Supreme Court reversed a conviction for robbery after a trial during which a probability theory was placed before a jury. See People v. Collins, 68 Cal.2d 319 , 438 P.2d 33 , 66 Cal.Rptr. 497 (1968). The case involved the robbery of an elderly woman. The victim and her neighbor testified that they had seen a young Caucasian woman with blond hair run from the scene into a yellow car driven by a black male with a mustache and beard. Several days later the police arrested a couple fitting this description. Id., 68 Cal.2d at 321 , 438 P.2d at 34 , 66 Cal.Rptr. at 498 . In Collins the issue at trial was identity. The prosecutor called as a witness a mathematics instructor who testified that the probability of the occurrence of six mutually “independent” events (i.e., yellow automobile, man with mustache, girl with pony tail, girl with blond hair, Negro man with beard, interracial couple in car) was equal to the product of the individual probabilities that each event would occur. Applying the product rule and assigning a probability for each of the six events, the prosecutor calculated, and argued, that there was one chance in twelve million that a randomly chosen couple would fit the description provided by the witness. 68 Cal.2d at 325 , 438 P.2d at 36-37 , 66 Cal.Rptr. at 501 . In holding the mathematical testimony and the prosecutor’s argument inadmissible, the California Supreme Court gave four reasons for its rejection of the product rule: (1) that there was no empirical evidence to support the assumed individual probabilities, (2) that even if the assumed probabilities were themselves correct, the multiplication presumed the independence of each factor (which was unsupported and plainly false), (3) that (the product rule notwithstanding) there remained a substantial possibility that the prosecution’s witnesses could be mistaken or lying or that the couple could have been disguised, and (4) that it was error to equate the probability that a randomly chosen couple would possess the incriminating characteristics with the probability that any given couple possessing these characteristics would be innocent. 9 The California Supreme Court concluded that the product rule “would inevitably yield a wholly erroneous exaggerated result even if all of the individual components had been determined with precision.” Collins, supra, 68 Cal.2d at 329 , 438 P.2d at 39 , 66 Cal.Rptr. at 503 . The Court warned that “mathematics, a veritable sorcerer in our computerized society, while assisting *649 the trier of fact in the search for truth, must not [be allowed to] cast a spell over him.” 68 Cal.2d at 320 , 438 P.2d at 33 , 66 Cal.Rptr. at 497 . V. From this analysis, a stark conclusion emerges. While one thinks of mathematics as a precise science, the result one reaches depends upon the numbers one factors into the equation. In any attempt to integrate the product rule into the fact-finding process of a trial, certain assumptions must be made. Events to which assumed probabilities are assigned must be independent of each other and the assumed probabilities must be supported by empirical evidence. The possibility of error must be ruled out. Otherwise the application of multiplication will simply magnify beyond reason a basic error. In the instant case we are not only applying assumed objective frequencies to obviously subjective probabilities but, in the absence of more refinement, we are applying obviously subjective frequencies to subjective probabilities. Thus in the DNA analysis employed in this case, this product or multiplication process would be reliable only if the conditions of the so-called “Hardy-Weinberg” rule were met. While my colleagues summarily deal with what they term the “esoteric” principles of the “Hardy-Weinberg equilibrium” or “linkage disequilibrium,” this is precisely what the “bitter controversy” which they describe (lifted from the opinion of Judge Chin in a California case) 10 is about. The NRC Committee details this controversy. As the Committee stresses, again and again, the validity of the multiplication rule employed by the FBI depends upon the absence of population substructure, because only in this special case are the different alleles (or polymorphisms) statistically uncorrelated with one another (as Hardy-Weinberg equilibrium requires). 11 The NRC Committee, assuming the absence of population substructure, has described the calculation as follows: Suppose for example, that [a defendant] has a genotype aVa2, bVb2, cVc1. If a random sample of the appropriate population [i.e., the fixed bin] shows that the frequencies of al, a2, bl, b2 and cl are approximately 0.1, 0.2, 0.3, 0.1 and 0.2, respectively, then the population frequency of the genotype would be estimated to be [2(0.1)(0.2) ] [2(0.3)(0.1) ] [ (0.2)(0.2) ] = 0.000096, or about 1 in 10,-417.[ 12 ] *650 To sum up, under this method, population frequencies quoted for DNA typing are based not on actual counting but on theoretical models based on the principles of population genetics. Each matching allele is assumed to provide statistically independent evidence and the frequencies of the individual alleles are multiplied together to calculate the frequency of the complete DNA pattern. Yet it is only now that population studies are being undertaken to validate the assumptions of the absence of substructure. The difficulty that the courts have had in applying this product rule is summed up by the Committee as follows: Statistical interpretation of DNA typing evidence has probably yielded the greatest confusion and concern for the courts in the application of DNA to forensic science. Some courts have accepted the multiplication rule based on the grounds of allelic independence, others have used various ad hoc corrections to account for nonindependence, and still others have rejected probabilities altogether. Some courts have ruled that it is unnecessary even to test allelic independence, and others have ruled that allelic independence cannot be assumed without proof. The confusion is not surprising, inasmuch as the courts have little expertise in population genetics or statistics. (NRC Report, 89.) In the instant case, at time of the hearing before Judge Kennedy, the FBI, using its fixed bin system, had calculated Mr. Porter’s four-locus probability estimate as 1 in 40 million. After the issuance of the preliminary National Academy of Sciences report, this estimate was recalculated as being 1 in 270,000. We have not been told the details as to the calculation. 13 The view of my colleagues that reputable scientists “would agree on such minimal figure as the bottom line of the possibility of a coincidental match,” prompts me to revisit the controversy which necessitated the report in the first place. VI. The debate among population geneticists underlying the use of the multiplication rule is currently described by the Council’s study essentially as follows. One group (Lewontin and Hartl) maintains that census categories — such as North American Caucasians, Blacks, Hispanics, Asians, and Native Americans — are not homogeneous groups but that each group is an admixture of subgroups with somewhat different allele frequencies. Allele frequencies have not been homogenized because people tend to mate within their subgroups. Subpopu-lation differentiation cannot be predicted in advance but must be assessed through direct studies of allele frequencies in ethnic groups. Furthermore, this group doubts that the presence of substructure can be detected by the application of statistical tests to data from large mixed populations. Another group of population geneticists (Chakraborty and Kidd), while recognizing the possibility or likelihood of population substructure, concludes that evidence to date indicates that multiplication of gene frequencies across loci does not lead to major inaccuracies in the calculation of genotype frequency, at least not for the specific polymorphic loci examined. I gather further, from exhibits and pleadings before us that there are disagreements between population geneticists as to fundamental principles which are essential to the validity of the product rule. Thus Lewontin and Hartl point to theoretical misunderstandings about the term “random mating” which has two different meanings. In the narrow sense the term applies to blood groups and other marker genes that do not have a direct effect on a person’s appearance. In a broader sense “random mating” means that individuals choose their mates without regard to “en-dogamy” — i.e., religion, ethnicity, geography, etc. Therefore, in the Lewontin/Hartl view the census term “Hispanics” is misleading since it embraces a “biological hodgepodge” of Mexican, Puerto Rican, Guatemalan, Cuban, Spanish and other an *651 cestries. Reliable probabilities for “Blacks” cannot be estimated without use of a reference population that is at least geographically relevant 14 and takes family history into account. “Caucasian” Americans are derived from genetically diverse European subgroups that migrated to North America only in recent generations and that have tended to maintain their ethnic and religious separateness in marriage. As a consequence under this rationale (1) there existed no single homogeneous reference group to which all individuals could be referred for estimating, probabilities of a random match of DNA type, and (2) the multiplication rule for calculating probabilities across multiple VNTR [variable number of tandem repeats] loci would not apply- Further exhibits show that another group of geneticists (Budowle and Stafford), responding to Lewontin and Hartl, countered that empirical data shows that the effect of population subgroups within the United States on the final statistical element is small and that the FBI’s fixed-bin approach was designed intentionally to minimize differences between subgroups, both geographic and ancestral. It argued that a comparison of fixed bin frequency data for Caucasians from the United States, Canada, France, Israel, Switzerland and Australia demonstrates that in most cases there are few or no differences for bin frequencies and the most extreme differences are no more than two to threefold. It attacked Lewontin data as consisting of extremes and outliers. As to Hispanics, the FBI approached the expected differences from a “geopolitical” perspective. Suggesting that Lewontin and Hartl had intimated that there are more genetic differences between ethnic groups (e.g., Irish and Swiss) than between racial groups (Black and Caucasian) Budowle and Stafford geneticists wrote: “It is intuitively obvious that persons of the same race share more common traits than do persons of different races.” NRC Report, 86. There is also controversy about the effect of passing generations on the existence of substructures. 15 Into this fray the NRC Committee, noting that the Hardy-Weinberg test is very weak for testing substructure, states: Differences between races cannot be used to provide a meaningful upper bound on the variation within races. Contrary to common belief based on difference in skin color and hair form, studies have shown that the genetic diversity between subgroups within races is greater than the genetic variation between races.... In summary, population differentiation must be assessed through direct studies of allele frequencies in ethnic groups. Relatively few such studies have been published so far, but some are underway. Clearly, additional such studies are desirable. (NRC Report, 82.) The Committee’s report further expresses concern about the discrepancies in frequency estimates that can result from “as *652 sumptions” about population structure as opposed to counting “matches,” noting: Substantial controversy has arisen concerning the methods for estimating the population frequencies of specific DNA typing patterns. Questions have been raised about the adequacy of the population databases on which frequency estimates are based and about the role of racial and ethnic origin in frequency estimation. Some methods based on simple counting produce modest frequencies, whereas some methods based on assumptions about population structure can produce extreme frequencies. (NRC Report, 74-75.) Noting that in one investigation frequency estimates ranged from 1 in 500 to 1 in 739 billion, the report makes a most significant observation: The discrepancy not only is a question of the weight to accord the evidence (which is traditionally left to a jury), but bears on the scientific validity of the alternative methods used for rendering estimates of the weight (which is a threshold question for admissibility). (NRC Report, 75 (emphasis added)). VII. The Committee, mindful of the controversy concerning population genetics, proposes its own methodology, one assuming the existence of population substructure. It recommends that blood samples be obtained from 100 randomly selected persons in each of 15-20 relatively homogeneous populations, and that the DNA in lymphocytes be immortalized and preserved as a reference standard for determination of allele frequencies in different laboratories. The collection of samples and their study should be overseen by a National Committee on Forensic DNA typing (NCFDT) whose mission would be independent of law enforcement. In applying the multiplication rule, the highest allele frequency found in any of the 15-20 populations or 5% (whichever is larger) should be used. This is the “ceiling principle.” See NRC Report, 93. In the interval (“which should be short”) while the reference samples are being collected, the 95% upper confidence limit of the frequency of each allele should be calculated for separate United States “racial” groups and the highest of these values or 10% (whichever is the larger) should be used in applying the multiplication rule. Population databanks should be openly available for scientific inspection by parties and laboratory error rates should be measured with appropriate proficiency tests. Id. We need not quibble over whether the Committee’s “conservative modification of a ceiling principle,” proposed for an interval time period, would meet the admissibility standard of general acceptance in view of the intensity and depth of the scientific controversy. Admittedly those of us in the law might have some personal concern about an acceptable risk of error to which we are willing to subject an accused. 16 However, the issue here is whether we should rush to vacate Porter, a decision carefully drafted, after momentous effort, 17 by the trial judge who conducted the Frye hearing — a decision which in rationale has voiced the same concerns as that of a committee of distinguished scientists. We should certainly refrain from issuing a broad stamp of approval to admissibility of novel scientific evidence particularly in a case where because of available testimony such evidence is not crucial to the search *653 for truth. 18 Such restraint is advisable in view of NRC’s admonition that regulation of such powerful potential is critical, and that adequacy of the method used to acquire and analyze samples in a given case bears on admissibility and should be adjudicated on a case by case basis. 19 (Indeed, Frye could be interpreted as being antithetical to case by case adjudication.) Finally, apart from the considerations of Frye , from an administrative viewpoint, our criminal justice system cannot ignore the cost of widespread use of DNA typing (expected to run into the tens of millions of dollars a year). The fact that DNA evidence might obviate trials in some cases may be cause for reassurance or fear, depending upon one’s point of view. 20 Man’s “search for truth” is a never-ending odyssey. The ultimate issue here, however, is not whether that search should be employed to determine whether Mr. Porter is guilty or innocent of a sexual assault on a complaining witness, but rather whether a hastily developed two-part methodology which reeks of scientific controversy in critical respect, can be employed summarily to undermine a system of individual justice, carefully and painfully crafted over the centuries. 21 I defer to the trial judge, to the legal precedent of Frye , and to the scientific genius that has argued that we are not yet ready. I respectfully dissent. . The sentence "[a] criminal trial is not a game but ‘a quest for truth’ ” is repeated in Womack v. United States, 350 A.2d 381, 383 (D.C.1976) (citing other omitted opinions) where the issue was whether a trial court had abused its discretion in directly questioning a witness — an obviously different issue from that of a ruling on the admissibility of evidence, particularly the admissibility of a new and novel scientific methodology. .Surely we are not suggesting that in the interest of a search for truth, a court may admit the inadmissible. In this regard the comments of Professor Lawrence A. Tribe [citing Hart & McNaughton, Evidence and Inference in the Law, Evidence and Inference 48, 52 (D. Lerner ed. 1958) ] are pertinent: It would be a terrible mistake to forget that a typical lawsuit, whether civil or criminal, is only in part an objective search for historical truth. It is also, and no less importantly, a ritual — a complex pattern of gestures comprising what Henry Hart and John McNaughton once called “society’s last line of defense in the indispensable effort to secure the peaceful settlement of social conflicts.” See Lawrence A. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv.L.Rev. 1329, 1376 (1971). . Members of the Council are drawn from the Councils of the National Academy of Science, the National Academy of Engineering and the Institute of Medicine. . On Tuesday, April 14, 1992, headlines in the New York Times read "U.S. Panel Seeking Restriction on Use of DNA in Courts, Labs' Standards Faulted, Judges are Asked to Bar Genetic “Fingerprinting" Until Basis in Science is Stronger." Gina Kolata, N.Y. Times, April 14, 1992, at Al, C7. The text begins: “[A] long-awaited Federal report on a powerful new genetic technique for identifying criminal suspects says it should not be allowed in court in the future unless a more scientific basis is established.” It quotes a defense lawyer who predicts reopening of cases and a prosecutor who terms the Committee’s report "irresponsible.” Id. . The NRC foreword reads in relevant part: We recommend that the use of DNA analysis for forensic purposes, including the resolution of both criminal and civil cases, be continued while improvements and changes suggested in this report are being made. There is no need for a general moratorium on the use of the results of DNA typing either in investigation or in the courts. We regard the accreditation and proficiency testing of DNA typing laboratories as essential to the scientific accuracy, reliability, and acceptability of DNA typing evidence in the future. Laboratories involved in forensic DNA typing should move quickly to establish quality-assurance programs. After a sufficient time for implementation of quality-assurance programs has passed, courts should view quality control as necessary for general acceptance. (NRC Report, foreword (emphasis added)). .The NRC Report emphasizes that new methods for demonstrating individuality in a person’s DNA are in a stage of development. Acknowledging that methods outlined in the report will likely be superseded by other new methods, the NRC cautioned that [c]are must be taken to ensure that DNA typing techniques used for forensic purposes do not become ‘locked in’ prematurely. Otherwise, society and the criminal justice system will not be able to derive maximal benefit from advances in the science and technology. (NRC Report, 49.) .See also Richard Lempert, Some Caveats Concerning DNA as Criminal Identification Evidence: With Thanks to the Reverend Bayes, 13 Cardozo L.Rev. 303, 336 (1991): While the law must admit the possibility that what most scientists "know” is wrong, in deciding what is scientifically sound a court can do no better than to proceed on the assumption that what scientists generally know is correct. But if there is substantial dissen-sus within the relevant scientific community, or if in a certain sphere the scientists who are most expert in a matter disagree with the conclusions of other scientists, the evidence should be excluded for the time being. Given the general adequacy of trial procedures at any particular point in time, we should not risk overwhelming the jury with information whose validity rests on propositions that are questioned by many knowledgeable scientists. If the skeptical scientists are wrong, a consensus regarding where the truth lies should emerge soon enough, and little harm is likely to occur in the meantime. . One court has explained a product or multiplication rule by reference to a population of 10 automobiles and the probability of selecting (sight unseen) one of a certain model or a certain color. People v. Wesley, 140 Misc.2d 306 , 533 N.Y.S.2d 643 (N.Y.Crim.Ct.1988). . It is unclear how the frequency of the two band profile of .008 was computed based on the preceding example which multiplied the frequency of one band (6 percent) times the frequency of the second band (5 percent) times two. This equation provides a two band frequency of .006, not .008. [2(.06 X .05) = .006]. . The error has been explained as follows: If there were 24 million couples in the suspect population, and if the probability that a couple, chosen randomly from the suspect population, having the same characteristics was one in twelve million, then two such couples exist in this population. Thus, the probability that any given couple, possessing these characteristics, would be innocent is approximately one in two, and not one in twelve million. Lawrence A. Tribe, 84 Harv.L.Rev. at 1336. . See People v. Barney, et al., 8 Cal.App.4th 798 , 10 Cal.Rptr.2d 731 (1st Dist.1992). . One court describes the Hardy-Weinberg requirements thusly: For a test to be reliable, two basic conditions must be met: 1.) the alleles that are tested for must not be the result of linkage disequilibrium; and 2.) the data base population must be in or approach Hardy-Weinberg equilibrium. The first condition is met by seeking alleles from different chromosomes. This increases the probability that the segments measured occurred randomly, rather than being the product of one parent’s genetic contribution. Hardy-Weinberg equilibrium assumes that allele frequencies in the population will remain constant from generation to generation so long as there is random mating in the population. Of course, small deviations from Hardy-Weinberg equilibrium exist in human communities for a number of reasons, including the fact that human mating is not, in its truest sense, random. If the population is in Hardy-Weinberg equilibrium, a probability that a DNA with eight identified rare alleles will occur is determined by multiplication of the eight individual probabilities, e.g., 1/a X 1/b x 1/c x 1/d X 1/e X 1/f X 1/g X 1/h. It is easy to see that if the probability of each of these alleles occurring is but 1 in 10, the probability of all eight appearing in the same individual is 1 in 10 8 or 1 in a hundred million. If but two of the alleles occur only in 1 of a hundred individuals, the resulting probability of all eight alleles matching becomes one in ten billion. It is easy to see just how powerful this identification tool is and what a tremendous impact it could have on a jury. State v. Pennell, 584 A.2d 513, 517 (Del.Super.1989). .NRC Report, 78-79. After one does the initial multiplication (accounting for the fact that the profiles can be obtained in two different ways), the equation would be: 96/1,000,000 = 1/X 96X = 1,000,000 X = 1,000,000 96 X = 10,416,666 . The Public Defender Service, appearing before this court as amicus in oral argument, indicated that this figure was proffered without explanation as to how it was calculated. . The blood samples in the Black database underlying Mr. Porter's initial probability estimate were collected in South Carolina, Florida and Texas. The FBI expert pointed out that use of this Black database operated to produce odds in favor of Mr. Porter. I am not certain that this is the kind of affirmative action that an accused would embrace with much enthusiasm. See, e.g., note 15, infra. . As the majority correctly notes, it is not for the courts to resolve a dispute between scientists. I mention the following only to echo the Committee’s emphasis upon direct studies. The October 1992 issue of "Ebony" magazine tells the poignant story of a distinguished law professor at the University of Iowa who, born into white middle-class comfort in suburban Washington, D.C., discovered that he was Black at 10 years old (and describes the chaos that followed thereafter). [This comes as no surprise to older generations of the slave states who are not only aware of communities and towns where "coloreds” (including octoroons, mulattoes and quadroons, many with white complexions, blond hair and blue eyes) perpetuated sub-grouping, but who also remember the disappearance of migrating family members (thus coining the phrases of "passing” and “crossing over”). See "Ebony,” February 1957, “How to Tell a Negro.”] Charles Whitaker, The True Story of an Indiana "White' Boy Who Discovered that He Was Black, Ebony, Oct. 1992, at 88. . Professor Tribe has put this thusly: Now it may well be, as I have argued elsewhere, that there is something intrinsically immoral about condemning a man as a criminal while telling oneself, "I believe that there is a chance of one in twenty that this defendant is innocent, but a 1/20 risk of sacrificing him erroneously is one I am willing to run in the interest of the public’s — and my own— safety.” 84 Harv.L.Rev. at 1372. . As the majority points out, Judge Kennedy sat for twenty days, heard testimony from eight expert witnesses, admitted over 110 exhibits, and received over 1,300 pages of briefs. I want to go on record with a commendation for all counsel. . Presumably the testimony of the complainant in this case will not need corroboration. . See State v. Vandebogart, — N.H. —, - —, 616 A.2d 483, 493-94 (N.H.1992) (holding that trial court erred in admitting population frequency estimates used by FBI since such statistical techniques are not generally accepted among population geneticists because of the debate regarding population substructure). . The Committee has voiced serious concern about privacy rights which state legislation has failed to address. It notes that DNA data banks have the ability to point not just to individuals but to entire families — including relatives who have committed no crime (NRC Report, 87) and that there is greater likelihood that information on minority-group members such as Blacks and Hispanics will be stored or accessed. NRC Report, 25. In this jurisdiction the daily press has reported that the National Institutes of Health has suspended funding for a conference at a local university until its organizers can reshape the program to make it clear that NIH does not advocate a genetic explanation for crime. See Lynne Duke, Controversy Flares Over Crime, Heredity, Washington Post, Aug. 19, 1992, at A4; Samuel Francis, Genes, Crime and Freedom, The Washington Times, Sept. 22, 1992, at FI, F4. The African-American oriented press has broached the subject of "eugenics.” See Alexander B. Jones, The Washington New Observer, Sept. 19, 1992, at 5; Tony Brown’s Comments, The Washington New Observer, Sept. 26, 1992, at 2. .Professor Tribe has expressed his concern thusly: Although the mathematical or pseudomathe-matical devices which a society embraces to rationalize its systems for adjudication may be quite comprehensible to a student of that society’s customs and culture, those devices may nonetheless operate to distort — and, in some instances, to destroy — important values which that society means to express or to pursue through the conduct of legal trials. Harv.L.Rev. at 1330. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9746944. Public record. Not legal advice.