EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, December 12, 2013

Blindfolding the Jury?: Will a Failure to Follow Protocol Render DNA Evidence Inadmissible in Jordan Graham Trial?

A couple of days ago, I posted an entry about the Jordan Graham prosecution. As noted, Graham is

the Montana woman charged with murder after shoving her new husband off a cliff at the Glacier National Park last summer. Prosecutors allege that the act was malicious; Graham counters that she instinctively pushed him away when he grabbed her arm during an argument.

According to an article yesterday,

During Wednesday's court session, investigators admitted they probably didn't follow established procedures when recovering a piece of cloth which could be a key piece of evidence in trial.  

The strip of black cloth was found just downstream from where Cody Johnson's body was located, lying in a pool of water below the parking area to The Loop trail in July.  

Prosecutors are attempting to say the cloth is proof that Graham planned her husband's death. The jury has not been told that the cloth is an alleged blindfold.  

But defense attorneys attacked the evidence even before the trial, saying there's no way the cloth can show Graham's intent. Plus, they say the DNA evidence - hairs on the cloth - wasn't properly preserved.  

Kalispell Police Sgt. Myron Wilson told the jury that the cloth had been handled after it was recovered from the bottom of the ravine, and that it was kept in a plastic bag and then transferred to a paper bag.  

Under cross-examination, Wilson admitted putting the cloth in plastic first was "not appropriate" under standard procedures because it doesn't allow DNA evidence to dry properly.

Because the alleged murder took place in Glacier National Park, Graham's trial is being held in federal court. So, what does that mean in terms of the admissibility of the DNA evidence?

Federal Rule of Evidence 702 provides that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:  

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;  

(b) the testimony is based on sufficient facts or data;  

(c) the testimony is the product of reliable principles and methods; and  

(d) the expert has reliably applied the principles and methods to the facts of the case.

As the Tenth Circuit noted in United States v. Davis, 40 F.3d 1069, 1074 n.6, "If the offering party does not follow protocol, the scientific evidence may not be relevant under [Rule 702(2)] because improperly applied science cannot assist the trier of fact." As the United States District Court for the District of New Mexico further explained in United States v. Coronado-Cervantes, 912 F.Supp. 497, 500 (D.N.M. 1996),

[U]nder Daubert's “relevance” prong, it may be necessary to inquire into whether standard protocol, in the DNA context, was followed in a particular case....

[T]his Court finds that under Daubert's second “relevance” prong, compliance with standard protocol in applying the RFLP technique is essential and goes to admissibility, rather than merely to the weight of DNA evidence as urged by the government. This is so because failure to follow standard protocol in applying the RFLP technique may yield an unacceptably high risk of false positive error....

The question in the Graham case, then, is the severity of the government's failure to follow protocol and whether it renders the DNA evidence inadmissible under Rule 702(2).



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"This is so because failure to follow standard protocol in applying the RFLP technique..." I wonder if this is still good law though. RFLP hasn't been standard protocol in DNA cases for years. It is now STR (short-tandem repeats) which are a lot more sensitive and can work with a sample in a much more advanced state of decay.

The point is moot now that she has pleaded guilty but this is an area of law where quoting from old cases is particularly problematic. Yes, the analytical process is the same but it would be a big mistake to confuse an analysis of RFLP with STR.

Posted by: Daniel | Dec 12, 2013 7:25:08 PM

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