# State v. Russell > Washington Supreme Court · October 13, 1994 · 125 Wash. 2d 24 URL: https://www.frixlaw.com/law-library/cases/9854997 ## Case - **Full name:** The State of Washington, Respondent, v. George W. Russell, Appellant - **Court:** Washington Supreme Court - **Decided:** October 13, 1994 - **Citations:** 125 Wash. 2d 24; 882 P.2d 747; 63 U.S.L.W. 2291; 1994 Wash. LEXIS 635 - **Precedential status:** Published - **Opinion:** Concurring in part by Utter - **Judges:** Madsen, Andersen, Utter - **Cited by:** 807 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/9854997 ## How later opinions describe it (automated extraction) - recognizing that DNA identification of humans is generally accepted by the scientific community and is based on knowledge about the extent of genetic variation in humans; identification of discrete, variable polymorphic DNA loci; and accurate probability estimates, all of whic… - explaining that to show "an enduring and • 5 No. 78524-9-1/6 resulting prejudice," the defendant must establish a "substantial likelihood that the alleged prosecutorial misconduct affected the verdict" - concluding that introduction of certain statistical probability evidence did not implicate Frye; computer programs were “nothing more than sophisticated record-keeping systems” - holding that the Frye standard did not apply where computer programs listing various characteristics of homicides were “nothing more than sophisticated record-keeping systems” ## Opinion text Utter, J. (concurring in the dissent) — I agree fully with Justice Andersen’s dissent, and write only to highlight the principal analytical difficulties I have with the majority’s treatment of the admissibility of polymerase chain reaction (PCR) deoxyribonucleic acid (DNA) evidence. First, the majority states a potentially misleading articulation of the standard according to which we determine a technique’s general acceptance in the scientific community. The majority states the court must look to the scientific community at large "familiar with the theory and underlying technique”, majority at 41, to determine the admissibility of PCR testing in this case: "[A] court looks not only to the technique’s acceptance in the forensic setting but also to its acceptance by the wider scientific community . . .”. Majority, at 41 (citing State v. Cauthron, 120 Wn.2d 879, 896-97 , 846 P.2d 502 (1993)). It is true Cauthron held the court should look to general acceptance in the appropriate scientific community. Implicit in Cauthron , however, is the notion that general acceptance of the methodology in question cannot properly be considered outside the context of the use to which the evidence is being put. Here, its forensic use is to assist in identifying the perpetrator of a crime. Thus, to be admissible, PCR testing would need to be generally accepted by scientists as reliable for use in the forensic context. The National Academy of *112 Sciences Report, upon which the majority relies for its conclusion such evidence is admissible in the forensic context, clearly recognizes the distinction between forensic and other uses of PCR analysis: "PCR analysis is extremely powerful in medical technology, but it has not yet achieved full acceptance in the forensic setting.” Nat’l Research Coun., DNA Technology in Forensic Science 70 (1992). Second, the majority confuses the second step of the Frye test (whether there is general scientific acceptance of the procedure in question, including its implementing technique) with the post-Frye inquiry (whether the implementing technique was properly carried out in a given case). See majority, at 50-51; Frye v. United States, 293 P. 1013 , 34 A.L.R. 145 (D.C. Cir. 1923). In Washington the Frye test has two prongs. The first is whether the theory underlying the technology in question is generally accepted in the relevant scientific community. The second is whether the technique used to implement the theory is also generally accepted in that scientific community. Cauthron , at 889. Both components must be satisfied before the evidence may be admitted. Cauthron, at 889. A subsequent inquiry goes to whether the test was properly conducted in the case at bar. That question goes to weight, not admissibility. See Cauthron, at 889. As the dissent establishes, although there is acceptance of the scientific theory underlying PCR DNA evidence, there was no consensus (at least at the time of its admission) about the reliability of PCR implementing techniques in the forensic context. 41 The evidence is therefore inadmissible. Because the evidence is inadmissible, we do not reach the question whether the implementation of the procedure in this case was properly conducted (a question that goes to weight). *113 Third, the majority relies on the passages in the National Academy of Sciences Report (Report) which suggest PCR testing might, under certain circumstances, be admissible in court. See majority, at 46 (quoting DNA Technology, at 145-46); majority, at 47 (quoting DNA Technology, at x). The selections the majority draws from the Report are ultimately unpersuasive because they are immaterial. We do not look to the Report to determine whether such evidence should be admitted, or what the standard of admissibility should be. Our case law clearly establishes the Frye test performs that function. See Cauthron; see also State v. Kalakosky, 121 Wn.2d 525, 540 , 852 P.2d 1064 (1993). We look to the Report only for the limited purpose of determining whether forensic PCR testing is generally accepted in the relevant scientific community. Because forensic PCR DNA testing was not generally accepted at the time of the Russell hearing, the evidence was inadmissible. Reconsideration denied November 17,1994. The dissent correctly indicates that although PCR DNA testing is generally accepted in the scientific community for research and medical diagnosis, it has not yet gained full acceptance in the forensic setting because problems of differential amplification, contaminated samples, and mixed samples have not yet been adequately addressed. See dissent, at 104-07. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9854997. Public record. Not legal advice.