State v. Russell

Andersen, C. J.

(dissenting) — I dissent solely on the issue of the admissibility of deoxyribonucleic acid (DNA) polymerase chain reaction (PCR) evidence; such evidence should not have been admitted. My reasons follow.

While I recognize that reasonable minds can differ on this very complex issue, I am convinced by the record before us and the available scientific literature on the subject that *95 PCR evidence is not yet generally accepted for use in the forensic setting by the relevant sciences.

The most important scientific publication on the subject of the forensic use of DNA evidence to date is an exhaustive 185-page report issued by the National Research Council of the National Academy of Sciences (hereinafter NRC). 17

As this court recently explained in State v. Cauthron, 120 Wn.2d 879, 885 , 846 P.2d 502 (1993), a committee of eminent scientists and jurists exhaustively researched and analyzed the current status of forensic DNA typing in the preparation for the NRC report. Because some of the most prestigious scientists in the nation indicated in that report that there is still significant controversy among the relevant scientists, I am unable to conclude that PCR evidence is admissible in Washington.

This court has recently discussed in detail the proper test and standard of review to be used when determining whether novel scientific evidence is admissible. In State v. Cauthron, 120 Wn.2d 879, 886 , 846 P.2d 502 (1993), we renewed our longstanding adherence to the standard in Frye v. United States, 293 P. 1013 , 34 A.L.R. 145 (D.C. Cir. 1923):

[Elvidence deriving from a scientific theory or principle is admissible only if that theory or principle has achieved general acceptance in the relevant scientific community.

(Italics mine.) Cauthron, 120 Wn.2d at 886 .

We review the trial court’s decision to admit novel scientific evidence de novo and if there is a significant dispute between qualified experts as to the validity of scientific evidence, it should not be admitted. 18 We look to the record before us, the legal and scientific literature and any relevant case law. 19

The testimony of the scientists in the Frye hearing in this case and the report from the scientists involved in the NRC *96 study show that there is still a "significant dispute” among knowledgeable scientists about PCR testing of crime scene evidence. It is also relevant to note that no appellate court in a jurisdiction which uses the Frye rule has yet allowed the admission of PCR evidence in a criminal case. While I have little doubt that some form of DNA PCR testing will ultimately become admissible, and perhaps even some day replace the current RFLP 20 method, I do not believe we have yet reached that point in time. I recognize that total unanimity is not necessary to satisfy the Frye test, but while there is still significant debate, novel scientific evidence is not admissible in Washington.

The majority opinion formally recognizes that Washington uses the Frye standard to determine the admissibility of evidence based on novel scientific procedures, but then the majority fails to adhere to that standard. I agree with the majority to the extent that the underlying scientific theory of DNA typing is accepted in the scientific community. 21 But in order to meet the Frye test, both an accepted theory and a valid technique to implement that theory must be shown to be generally accepted in the scientific community. Cauthron , 120 Wn.2d at 8S9. 22 The technique to implement the theory at issue here is the polymerase chain reaction test used in this case to detect variation at the HLA DQ alpha locus. I agree with the majority that PCR testing is accepted, and widely used, in medical research and diagnostic laboratories. However, I disagree that the fact that PCR is generally accepted by the scientists for use in the medical arena means that it also is generally accepted for use in the forensic setting. Because of problems of contaminated specimens, *97 mixed samples, or crime scene samples so small as to prohibit corroborative testing, this is a very different inquiry in the medical and the forensic setting.

The heart of the controversy surrounding PCR technology involves the transfer of the technology from the medical and the research applications to use on potentially degraded minute samples of crime scene evidence. 23 The NRC’s report explains the difference as follows:

To understand the challenges involved in such technology transfer, it is instructive to compare forensic DNA typing with DNA diagnostics.

DNA diagnostics usually involves clean tissue samples from known sources. It can usually be repeated to resolve ambiguities. It involves comparison of discrete alternatives (e.g., which of two alleles did a child inherit from a parent?) and thus includes built-in consistency checks against artifacts. It requires no knowledge of the distribution of patterns in the general population.

Forensic DNA typing often involves samples that are degraded, contaminated, or from multiple unknown sources. It sometimes cannot be repeated, because there is too little sample. It often involves matching of samples from a wide range of alternatives present in the population and thus lacks built-in consistency checks.

DNA Technology, at 52, 24

As the majority notes, in a Frye analysis the opinions may come from all the scientists knowledgeable about DNA techniques. However, because of the nature of the amplification process in PCR testing, those opinions should be about the use of the technology on crime scene evidence. I wish to be clear that I am not saying that forensics is the relevant scientific community; I am simply saying that while PCR testing is generally accepted for use in the research and *98 diagnostic setting, it is not generally accepted for use on contaminated and mixed specimens obtained from crime scenes.

I, therefore, believe that the correct inquiry before us is whether the PCR method of determining identity when used in the forensic setting on crime scene evidence enjoys general acceptance in the relevant scientific communities of molecular biology and genetics. The scientific literature, the testimony of the scientists from the Frye hearing in this case and existing case law demonstrate that it does not. Rather, these sources point to the existence of a significant dispute on this issue.

Scientific Literature

Because of many questions about the reliability, the methodological standards, and the interpretation of population statistics in the forensic use of DNA evidence, the NRC, an organization administered jointly by the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine, appointed a committee to address the issues surrounding forensic DNA testing. 25

In April of 1992, following a study that began in January of 1990, the NRC published its report entitled, DNA Technology in Forensic Science. This lengthy report was relied on extensively in our recent Cauthron opinion. 26 The Cauthron opinion, in accord with the NRC report’s recommendations, concluded that the RFLP technique to determine identity based on DNA comparison is generally accepted, but that the declaration of a "match” without using the NRC report’s conservative probability statistics to explain the match was reversible error. Cauthron noted that because of the broad range of scientists involved in the National Research Committee, it represents the sort of general scientific acceptance needed to satisfy Frye, 27 Other recent court decisions have also looked to the NRC report to determine issues regarding *99 the forensic use of DNA evidence. State v. Anderson, 115 N.M. 433 , 853 P.2d 135 (Ct. App.), cert. granted, 115 N.M. 145 (1993) explained that the NRC committee is not just one author trying to make a point; it is a group of highly regarded names in science, medicine and law. 28

Although much of the NRC report deals with RFLP, it does include sections discussing PCR DNA. It concludes, in part:

TECHNICAL ISSUES IN PCR-BASED METHODS

PCR is a relatively new technique in molecular biology, having come into common use in research laboratories only in the last 4 years. Although the basic exponential amplification procedure is well understood, many technical details are not, including why some primer pairs amplify much better than others, why some loci cause systematically unfaithful amplification, and why some assays are much more sensitive to variations in conditions. Nonetheless, it is an extremely powerful technique that holds great promise for forensic applications because of its great sensitivity and the potential of its use on degraded DNA.

We discuss here two broad categories of technical issues concerning PCR methods: issues related to the amplification step and issues related to the detection of amplified product.

... [A several page discussion follows.]

Prospects of PCR-Based Methods

PCR analysis has a number of desirable features for forensic applications. . . . At the same time, it poses even more serious issues of proficiency, control, and technology transfer than RFLP typing.

In summary, it is well established that one can greatly amplify a locus with authenticity and that one can reliably detect alleles or sequence variation at the amplified locus with any of a number of techniques. PCR analysis is extremely powerful in medical technology, hut it has not yet achieved full acceptance in the forensic setting. The theory of PCR analysis, even though it is the analysis of synthetic DNA, as opposed to the natural sample, is scientifically accepted and has been accepted by a number of courts. However, most forensic laboratories have invested their energy in development of RFLP technology and have left the development of forensic PCR technology to a few other laboratories. Thus, there is no broad base of experience in the use of the technique in identity testing.

*100 Forensic PCRrbased testing is now limited for the most part to analysis of genetic variation at the DQa locus in the HLA complex. Potential ambiguities in typing results cannot yet be checked by studying a number of other loci in the same DNA sample. That shortcoming will be rectified with the addition of new PCR markers for forensic analysis. However, it is clear that analysis of the DQ locus with PCR can often provide useful information during the investigative phase in the forensic setting.

In general, further experience should be gained with respect to PCR in identity testing. Information on the extent of the contamination problem in PCR analysis and the differential amplification of mixed samples needs to be further developed and published. A great deal of this information can be obtained when a number of polymorphic systems are available for PCR analysis. Ambiguous results obtained with a number of polymorphic markers will signal contamination or mixtures of DNA in a sample.

Quantification of PCR results needs to be explored, to make the results more reliable. Laboratories that gain experience with PCR should determine the relationship between cycle number and percentage of contaminating DNA easily detected for each system used. Control primers that amplify small amounts of DNA reliably and robustly need to be added to test amplifications. In general, information derived from new polymorphic loci under standardized conditions with easily quantifiable results or end points is needed. Considerable advances in the use of PCR in forensic analysis can be expected soon; the method has enormous promise.

(Italics mine.) DNA Technology, at 63-70.

The majority recognizes that the NRC report states that the PCR analysis "has not yet achieved full acceptance in the forensic setting”, that "there is no broad base of experience in the use of the technique in identity testing”, and that "[i]nformation on the extent of the contamination problem in PCR analysis and the differential amplification of mixed samples needs to be further developed and published.” Majority, at 45-46 (quoting DNA Technology, at 70). However, the majority then dismisses this crucial and, I believe, determinative statement of scientific opinion by quoting a section from a later chapter of the report and by concluding that "experts” and a "number of court decisions” refute the challenge to the admissibility of PCR. Majority, at 46-48.

*101 The quote, the experts and the court opinions cited to by the majority all refer to the RFLP technique of DNA identification and not to PCR amplification analysis.

The majority states "the report acknowledges the admissibility of DNA evidence, without distinguishing between the PCR and RFLP methodology” (italics mine), majority, at 46, and then quotes to a section of the report that in fact appears to me to be discussing RFLP and not PCR when it states it is unnecessary to hold admissibility hearings on the scientific techniques. In fact, the missing middle section of the majority’s quote, majority, at 46, from pages 145-46 of the report clearly discusses RFLP analysis. Additionally, on the previous page of the report, the NRC states that "[t]he use of PCR amplification for sample preparation might require a pretrial hearing on the properties of the technique, because it introduces a novel issue considered by only a few courts thus far — the synthesis of evidence by amplification.” DNA Technology, at 144. If page 145 of the report is referring to PCR evidence when it says no hearing is necessary, then it conflicts with the statement about PCR on the prior page. My interpretation is congruent with the report’s conclusion that "[t]he current laboratory procedure for detecting DNA variation (specifically, single-locus probes analyzed on Southern blots without evidence of band shifting) is fundamentally sound,. . .” (Italics mine.) DNA Technology, at 149. The parenthetical material describes the RFLP technique of DNA analysis, not PCR analysis. 29

The report recommends that before a new DNA typing procedure can be used, it must have not only a solid scientific foundation but also a solid base of experience. 30 Since the report concludes that there is no broad base of experience in the use of the PCR technique in identity testing, 31 1 cannot conclude that the report is endorsing the use of PCR at this time.

*102 The majority also relies upon the NRC’s response to a New York Times newspaper article which had opined that the report had advocated a moratorium on the use of DNA evidence in courts until better accreditation and protocols were in place. While the Council did deny that sweeping characterization of its report, that response certainly does not give the committee’s endorsement to every method of DNA analysis. In fact, the report states that there is no dispute about the validity of the general principles underlying DNA typing, but that a given DNA typing method might or might not be scientifically appropriate for forensic use. DNA Technology, at 51. The NCR report points out that before any particular DNA typing method is used for forensic purposes, precise and scientifically reliable procedures for performing the steps must be established. "It is meaningless to speak of the reliability of DNA typing in general — i.e., without specifying a particular method.” (Italics mine.) DNA Technology, at 8, 51-52.

Additionally, and perhaps most importantly to me, is that it is the job of the judiciaries, and not the job of scientists, to make the legal decision whether evidence is admissible in a court of law. We look to the NRC report to demonstrate general scientific acceptance, or lack thereof, and not to make the determination of legal admissibility. Admissibility depends upon a particular state’s law regarding the standards for admissibility of novel scientific evidence. If the report demonstrates a lack of general acceptance by the relevant scientists (which I believe to be the case) then we should decide as a matter of state law that the evidence is not yet admissible in Washington under the Frye test. It may, however, be admissible in other states that use a less stringent standard for admissibility.

The majority opinion cites to three cases apparently to support its conclusion that the NRC report says that PCR evidence should be admissible. People v. Barney, 8 Cal. App. 4th 798, 812 , 10 Cal. Rptr. 2d 731 (1992); Fishback v. People, 851 P.2d 884, 893 (Colo. 1993); United States v. Jakobetz, 747 F. Supp. 250, 256-58 (D. Vt. 1990), aff’d, 955 F.2d 786 *103 (2d Cir.), cert. denied, 113 S. Ct. 104 (1992). Majority, at 47-48. All three cases so cited concern only the admissibility of RFLP evidence and address the issue of whether the present lack of laboratory accreditation and established protocols, which could cause errors in a given case, should go to the admissibility or the weight of the evidence. This court has already decided this issue. 32 None of these three cited cases are relevant to the issue of whether the PCR technique is sufficiently accepted for use in a forensic setting. To the date this opinion is written, no appellate court in a Frye jurisdiction has allowed the admission of PCR evidence!

Frye Hearing Experts

At the Frye hearing in this case, six expert witnesses and the forensic scientist who conducted the PCR tests testified. There was testimony that the DNA PCR technique is generally accepted as accurate and reliable by the scientific community. As the majority points out, there were four highly qualified scientists who testified that PCR was reliable and generally accepted for use in the forensic setting. However, there was also testimony from three highly qualified scientists that PCR is not yet generally accepted in the scientific community for use on crime scene evidence.

Dr. John Gerdes, Ph.D., the DNA analysis director at Immunological Associates of Denver, testified that the Cetus DQ alpha system (PCR test for forensic use) is controversial and is not accepted in the scientific community. Report of Proceedings, at 1332. He also testified there were few publications on that issue. Report of Proceedings, at 1332. "While I agree with the majority that there are thousands of articles about PCR DNA, the vast majority of them concern applications in the research and clinical and medical settings and not the transfer of the technology to the forensic laboratory for identity testing on crime scene samples.

Dr. Gerdes also testified that it was too early for the Cetus kit to produce reasonable results in a forensic setting *104 because of the danger of typing a contaminant, the low power of discrimination, and the lack of independent validation of laboratories other than that of Dr. Edward Blake of Forensic Science Associates, the forensic serologist who conducted the PCR tests at issue. Report of Proceedings, at 1294-97. While I recognize that the issues of the power of discrimination and the validation of laboratories may go to weight and not admissibility, the question about identifying contamination does appear to be a significant concern for many scientists. 33 Whether or not there was evidence of contamination in the present case is irrelevant; we are making law here for all cases, and if the danger of erroneous results due to contamination (which is usually present in crime scene specimens) is still a significant concern to knowledgeable scientists then the method does not yet meet the criteria of the Frye test.

I disagree with the majority’s conclusion that the reliability of the test due to contamination and unknown mixed samples goes to the weight of the evidence; it goes instead to the critical issues of the validity and reliability of the test when used in the forensic laboratory. At the Frye hearing, Dr. John Gerdes also explained some of the differences between DNA testing in the medical setting and in the forensic setting. He testified that the forensic specimens are generally contaminated, or mixed specimens, meaning that they are from a crime scene where they are contaminated with either bacteria or other DNA, that they are not controlled samples and are usually in very small amounts. He testified that for these reasons the specimen itself introduces an order of complexity in the testing. Dr. Gerdes testified that there is definitely a difference between applying PCR technology in a research or clinical setting and applying it to the examination of crime scene evidence in a forensic labora *105 tory because the forensic source introduces inhibitors, and degradation and variability in terms of predictable outcome. Report of Proceedings, at 1292. Dr. Kristen Skoger-boe similarly explained the differences between medical and forensic specimens. Report of Proceedings, at 1436.

Dr. Kristen J. Skogerboe, Ph.D., a clinical chemist at the Laboratory of Pathology affiliated with Swedish Hospital in Seattle, also testified that there were not yet sufficient validation studies regarding the use of the Cetus DQ alpha kit for typing crime scene evidence, Report of Proceedings, at 1438, that the DQ alpha kit has not yet been shown to be reliable for typing on crime scene evidence, and that it was her belief that the PCR DQ alpha kit was not yet accepted in a widespread manner in the scientific community. Report of Proceedings, at 1446.

Dr. Glenn A. Evans, Ph.D., M.D., associate molecular laboratory professor at the Salk Institute for Biological Studies in La Jolla, California, was referred to by the prosecutor at oral argument before this court as the most knowledgeable PCR expert who testified in this case. He testified that PCR, itself, is a very widely used technique that is used by most molecular biology and genetics laboratories. However, he testified that the Cetus test uses PCR as only one aspect of its mechanism and that the methods used in the test are not widely in use in the clinical community or in the forensic community and very little has been published about the reliability or validation of that test. Report of Proceedings, at 1504-05.

Dr. Evans discussed an editorial published in the American Journal of Human Genetics authored by Dr. Eric Lander, Director of the Massachusetts Institute of Technology’s Human Genome project and a scientist relied on extensively in our recent Cauthron opinion, and indicated that the PCR test was used in forensics only in a small number of laboratories and has yet to be accepted or validated. Report of Proceedings, at 1538-41. Dr. Lander’s editorial explains that only a single polymorphism system (HLA DQ alpha) is available in PCR testing, providing no opportunity for con *106 sistency checking among loci for problems such as mixed samples, and expresses concern about the extraordinary care that must be taken to avoid contamination that can produce false matches. 34

In spite of such testimony, the majority opinion concludes that "extensive validation studies have been conducted on PCR testing” (italics mine) and cites to Kamrin T. Mac-Knight, Comment, The Polymerase Chain Reaction (PCR): The Second Generation of DNA Analysis Methods Takes the Stand, 9 Santa Clara Computer & High Tech. L.J. 287 , 344 (1993). Majority, at 49-50. Although this law student article does make this statement, it cites to just one study to support this statement. That study is described in a 1991 article published by the FBI. 35 This FBI validation study was published a year before the NRC published its exhaustive report on DNA testing which concluded that PCR has not yet achieved full acceptance in the forensic setting and that information on the extent of the contamination problem in PCR analysis and the differential amplification of mixed samples needs to be further developed and published. DNA Technology, at 70. Dr. Gerdes testified that the FBI study was a first step but does not go far enough. Report of Proceedings, at 1354. Dr. Evans testified that he would not recommend the FBI study be accepted for publication in the scientific journals for which he reviews because some of the studies could not be reproduced and because he knew that some of the test results regarding contamination were wrong. Report of Proceedings, at 1516.

Dr. Evans testified that the RFLP test is reliable and accepted for use on crime scene evidence. Report of Proceedings, at 1506. However, with regard to PCR, he testified that it was difficult to ensure that a PCR test is amplifying DNA from the forensic sample and not from a contaminant. *107 Report of Proceedings, at 1531-33. Dr. Evans testified regarding an article entitled Identification of the Skeletal Remains of a Murder Victim by DNA Analysis by Dr. Alec Jeffreys, who is described as the father of DNA forensics, published in Nature magazine. Dr. Evans testified that the article describes how because PCR is so sensitive, it is very difficult to be sure that one is amplifying the DNA from a sample and not from a contaminant. Report of Proceedings, at 1529-32.

According to a report from the Office of Technology Assessment, validation studies show that the RFLP test can be successfully used on forensic samples, but that such validation studies were not yet completed on the PCR technique. Office of Technology Assessment, U.S. Congress, Genetic Witness: Forensic Uses of DNA Tests 59, 60 (1990).

At present, however, the enthusiasm of some for PCR applied to forensic casework is tempered . . . Cautionary voices warn that, compared to RFLP analysis, all the possible artifacts and steps necessary to avoid them have not been fully identified. Some believe that additional studies of PCR on simulated or real samples is necessary to ensure that problems often encountered with real samples, including DNA and non-DNA contaminants, do not interfere with accurate PCR use in forensic applications.

Genetic Witness, at 69.

Case Law

Existing case law is not helpful to our present inquiry. No appellate decision in a jurisdiction that uses the Frye test for the admissibility of novel scientific evidence has decided whether PCR evidence is admissible in the forensic setting. PCR evidence has been admitted in Virginia, Texas and Oregon, but under a more lenient standard for admissibility than the Frye rule followed in Washington. 36 The Frye test is *108 more conservative than the relevance test; that is, the court is less inclined to admit evidence which is still disputed in the scientific community. 37 As a New Mexico appellate court recently recognized, "[w]hen it is the level of acceptance in the scientific community we are trying to gauge, cases that hold DNA evidence to be relevant regardless of the level of scientific acceptance are inapposite.” 38

In fact, in State v. Lyons, 124 Or. App. 598, 607 , 863 P.2d 1303, 1309 (1993), an Oregon intermediate appellate court admitted PCR evidence, but recognized:

There is, however, disagreement among experts about whether the PCR method is appropriate for forensic use. The disagreement centers primarily on the fact that samples obtained at the crime scene are often produced and recovered under adverse conditions that can result in various forms of contamination before the sample ever reaches a laboratory.

The issue of contamination is quite different in the setting of PCR where an infinitesimal specimen is amplified millions of times than it is in other more traditional forensic laboratory tests. The incredible sensitivity of the PCR amplification process creates the danger that a contaminant will be copied rather than the specimen of interest.

The majority cites to State v. Williams, 252 N.J. Super. 369, 383 , 599 A.2d 960 (1991), where a trial court admitted the results of PCR-amplified DNA testing. Majority, at 54 n.7. However, it is important to note that only proponents of the test testified in that case; the defendant offered no defense witness in opposition to the admission of PCR testing techniques. 39

*109 The majority’s conclusion that there is no scientific basis for the belief that differential amplification occurs with PCR testing is based on a student law review article, majority, at 52, which appears to me to conflict with the report of the NRC. DNA Technology, at 64-65. The majority opinion’s conclusion regarding the effects of contamination also conflicts with that report. The NRC discusses three sorts of contamination that can lead to erroneous typing results: mixed samples, contamination from handling in the field or laboratory, and PCR product carryover contamination. The discussion of the problem of contamination in the majority opinion addresses only one of these three potential kinds of contamination. Majority, at 53-54. The majority opinion’s conclusion that contamination is either detectable or preventable likewise appears to conflict with the NRC’s report which concludes that information about the extent of the contamination problem in PCR analysis and the differential amplification of mixed samples needs to be further developed and published and that methods of detecting and preventing contamination from one PCR reaction to another in forensic laboratories are generally still in their early stages. DNA Technology, at 67, 68. That report states:

One of the most serious concerns regarding PCR-based typing is contamination of evidence samples with other human DNA. PCR is not discriminating as to the source of the DNA it amplifies, and it can be exceedingly sensitive. Potentially, amplification of contaminant DNA could lead to spurious typing results.

DNA Technology, at 65.

It is not surprising to me that, given the present state of scientific opinion, no Frye state has yet admitted PCR evidence derived from crime scene evidence.

Conclusion

Based upon the Frye hearing record in this case, the case law and the literature — all of which I have reviewed above — I would conclude that PCR DNA testing is not yet generally accepted by the scientific community for use on crime scene evidence and hence should not have been admissible *110 at the trial of this case. Especially in light of this court’s heavy reliance on the NRC report in Cauthron , the report’s conclusion that PCR in the forensic setting has not yet gained full acceptance in the scientific community can only be ignored at our peril. The Frye hearing demonstrated a real controversy among qualified scientists. Even if the in-house FBI validation study might have caused the scales to tip toward admissibility, the later NRC report called into serious question the acceptance by scientists of PCR on contaminated, mixed forensic samples. As we explained in State v. Cauthron, 120 Wn.2d 879, 902 , 846 P.2d 502 (1993):

Our role is not to evaluate the merits of the theory or of the empirical evidence. Nonetheless, it is important that we understand the extent of any controversy in the scientific community. Although it is not our aim to make a judgment regarding which view is correct, we must be sure that a genuine and important controversy exists. Our decision rests on the existence of a controversy, not on its resolution.

(Italics mine.)

In discussing RFLP statistical evidence, the California Court of Appeal recently explained that "the point is not whether there are more supporters than detractors, or whether . . . the supporters are right and the detractors are wrong. The point is that there is disagreement between two groups, each significant in both number and expertise . . .” 40 The Frye hearing and the NRC report indicate that there is a genuine and important controversy with regard to the forensic use of PCR testing at this point in time. Our inquiry must end with the perception of such disagreement and consequent lack of general acceptance. Therefore, PCR testing should not yet be admissible in criminal trials under the Frye test in Washington.

I wish to reiterate that we are not here considering the expertise or proficiency of one high-quality laboratory or one exceptionally well qualified forensic scientist or the reliability of one PCR kit; we are deciding for all laboratories whether DNA PCR testing should be admissible to prove *111 guilt or demonstrate innocence in a criminal trial in this state. Until there is general acceptance in the scientific community that PCR analysis is valid and reliable when used on crime scene evidence, to my view, we are acting prematurely to admit this powerful and often determinative evidence. I have no doubt that this kind of evidence, in some form, is the wave of the future — at the present moment in scientific history, however, that is where it belongs — in the future.

Thus, I dissent.

Smith and Johnson, JJ., concur with Andersen, C.J.

National Academy of Sciences document: Nat’l Research Coun., DNA Technology in Forensic Science (1992) (hereinafter DNA Technology).

State v. Cauthron, 120 Wn.2d 879, 887 , 846 P.2d 502 (1993).

Cauthron, 120 Wn.2d at 888 .

RFLP refers to the restricted fragment length polymorphism method of DNA typing which was held to be admissible in Cauthron, 120 Wn.2d at 893 .

DNA Technology, at 133, 144-45; Cauthron, 120 Wn.2d at 895 ; State v. Kalakosky, 121 Wn.2d 525, 543 , 852 P.2d 1064 (1993).

I agree with the majority opinion’s conclusion that any criticisms of the test in this particular case are questions of weight, and not admissibility, and hence are properly submitted to the jury. They do not impact the Frye admissibility inquiry. Cauthron, 120 Wn.2d at 899 ; Kalakosky, 121 Wn.2d at 543 .

See, e.g., DNA Technology, at 6, 52, 71 (explaining the differences in the use of PCR in the research and diagnostic labs and in the forensic setting and concluding that forensic DNA typing is drawing methods from the cutting edge of molecular genetics, but must apply them to quite different circumstances); State v. Alt, 504 N.W.2d 38, 43 (Minn. Ct. App.) (discussing the difference between the medical and forensic uses of DNA), review granted and remanded, 505 N.W.2d 72 (Minn. 1993).

See also Lisa B. Hansen, Comment, Stemming the DNA Tide: a Case for Quality Control Guidelines, 16 Hamline L. Rev. 211 , 232-33 (1992).

DNA Technology, at vi-vii.

State v. Cauthron, 120 Wn.2d 879 , 846 P.2d 502 (1993).

Cauthron, 120 Wn.2d at 895 .

See also State v. Vandebogart, 136 N.H. 365, 368-73 , 616 A.2d 483, 485-88 (1992); State v. Futch, 123 Or. App. 176 , 860 P.2d 264 (1993); Alt, 504 N.W.2d at 41 ; State v. Jobe, 486 N.W.2d 407 , 420 n.3 (Minn. 1992); People v. Wallace, 14 Cal. App. 4th 651, 658 , 17 Cal. Rptr. 2d 721 (1993); United States v. Porter, 618 A.2d 629, 631 (D.C. 1992).

See, e.g., Cauthron, 120 Wn.2d at 891-95 .

DNA Technology, at 72.

DNA Technology, at 70.

State v. Cauthron, 120 Wn.2d 879, 889 , 846 P.2d 502 (1993); State v. Kalakosky, 121 Wn.2d 525, 540-43 , 852 P.2d 1064 (1993).

DNA Technology, at 65-67, 70; Office of Technology Assessment, U.S. Congress, Genetic Witness: Forensic Uses of DNA Tests 69 (1990). (Some believe that additional studies of PCR on simulated or real samples is necessary to ensure that problems often encountered with real samples, including DNA and non-DNA contaminants, do not interfere with accurate PCR use in forensic applications.)

Eric S. Lander, Invited Editorial: Research on DNA Typing Catching Up With Courtroom Application, 48 Am. J. Hum. Genetics 819, 822 (1991).

Catherine T. Comey & Bruce Budowle, Validation Studies on the Analysis of the HLA DQ Locus Using the Polymerase Chain Reaction, 36 J. Forensic Sci. 1633 (1991).

Spencer v. Commonwealth, 240 Va. 78, 97-98 , 393 S.E.2d 609, 621 (no defense experts were called so the state’s witnesses’ testimony favoring PCR was unrefuted), cert. denied, 498 U.S. 908 (1990); Clarke v. State, 813 S.W.2d 654, 655 (Tex. Ct. App. 1991) (the court discusses three prosecution expert witnesses but does not mention any defense experts), aff'd, 839 S.W.2d 92 (Tex. Crim. App. 1992), cert. denied, 113 S. Ct. 1611 (1993); see also Trimboli v. State, 817 S.W.2d *108 785 (Tex. Ct. App. 1991) (the defendant failed to challenge PCR DNA), aff'd, 826 S.W.2d 953 (Tex. Crim. App. 1992); State v. Lyons, 124 Or. App. 598, 607 , 863 P.2d 1303 (1993).

State v. Cauthron, 120 Wn.2d 879, 886 , 846 P.2d 402 (1993) (recognizing that some jurisdictions employ the more liberal relevancy test, but reaffirming Washington’s commitment to the Frye test).

State v. Anderson, 115 N.M. 433, 440 , 853 P.2d 135 (Ct. App.), cert. granted, 115 N.M. 145 (1993).

Williams , 252 N.J. Super, at 382.

People v. Barney, 8 Cal. App. 4th 798, 819, 10 Cal. Rptr. 2d 731 (1992).