¹ See Tim Friend, Cutting Odds of Coincidental DNA Match, USA TODAY, May 3, 1996, at 4D.

Id.

² See Marshall, Eliot, Academy's About-Face on Forensic DNA, 272 SCIENCE 803, 804 (1996)CrossRefGoogle Scholar.

³ See Rosenthal, Sue, My Brother's Keeper: A Challenge to the Probative Value of DNA Fingerprinting, 23 AM. J. CRIM. L. 195, 196 (1995)Google Scholar (outlining initial and recent challenges to DNA).

⁴ See Carrabino, Lisa, Note, The Admissibility of DNA Typing and Statistical Probability Evidence, 24 SUFFOLK U. L. REV. 473, 474 (1995)Google Scholar. “In order to determine the admissibility of DNA evidence, lawyers have expended much effort to conduct lengthy hearings and to call expert witnesses… . [T]he current debate surrounds the proper method forensic scientists should use to calculate the statistical probability of a coincidental match … .” Id. at 473-74 (footnote omitted).

⁵ See Sharon Begley et al., Blood, Hair and Heredity, NEWSWEEK, July 11, 1994, at 24, 24.

⁶ See Armstead v. State, 673 A.2d 221, 226 (Md. 1996) (citing OFFICE OF TECHNOLOGY ASSESSMENT, GENETIC WITNESS: FORENSIC USES OF DNA TESTING 8 (1990)). DNA testing has been used as a forensic tool for nearly a decade. See id. After use by the United Kingdom in 1985, the Federal Bureau of Investigation (FBI) adopted it in 1988. See id.

⁷ See Begley et al., supra note 5, at 24. Since its first use in the United States in 1987, over 24,000 cases have involved DNA evidence. See id. In 30% of those cases, DNA has cleared people mistakenly suspected of crimes. See id. DNA has even freed over a dozen wrongly convicted men from prison. See id.

⁸ See Carrabino, supra note 4, at 474. Forensic scientists and the legal community have come to a consensus accepting the basic scientific theories that underlie DNA and DNA typing. See id. However, a current debate exists over the forensic methods scientists must use to calculate properly the statistical probability of a coincidental DNA match. See id.

⁹ See Imwinkelried, Edward J., Coming to Grips with Scientific Research in Daubert's “Brave New World“: The Court's Need to Appreciate the Evidentiary Differences Between Validity and Proficiency Studies, 61 BROOK. L. REV. 1247, 1247 (1995)Google Scholar (noting that courts have feared situations in which scientific evidence would “cast a spell” over jurors prohibiting them from accepting testimony without criticism and giving the evidence undue weight).

¹⁰ See id. (quoting People v. Kelly, 549 P.2d 1240, 1245 (Cal. 1976)). In another case, the California Supreme Court characterized science as “a veritable sorcerer in our computerized society [who can] cast a spell” over the court system. People v. Collins, 438 P.2d 33, 33 (Cal. 1968).

¹¹ See Imwinkelried, supra note 9, at 1247 (quoting United States v. Addison, 498 F.2d 741, 744 (D.C. Cir. 1974)).

¹² See Hoeffel, Janet C., Note, The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant, 42 STAN. L. REV. 465, 466 (1990)CrossRefGoogle Scholar (citations omitted) which states:

¹³ See id.

¹⁴ See Charles Edward Anderson, DNA Evidence Questioned: Bronx Judge Rules Lab Failed to Use Accepted Techniques, A.B.A. J., Oct. 1989, at 18, 18 (discussing the problems with DNA evidence and reporting on a Bronx judge's decision to exclude DNA evidence because the lab failed to follow accepted scientific techniques); Robert D. McFadden, Reliability of DNA Testing Challenged by Judge's Ruling, N.Y. TIMES, Aug. 15, 1989, at Bl (discussing the same case in which the Bronx judge refused to admit DNA fingerprint evidence after hearing expert testimony criticizing the DNA lab procedures); Paul Reidinger, They Blinded Me with Science!, A.B.A. J., Sept. 1996, at 58, 58 (explaining how lawyers use the inherent uncertainty in scientific evidence to cast doubt on DNA evidence).

¹⁵ See COMMITTEE ON DNA TECH. IN FORENSIC SCIENCE, NATIONAL RESEARCH COUNCIL, DNA TECHNOLOGY IN FORENSIC SCIENCE 2 (1992) [hereinafter NRC REPORT].

¹⁶ See id. at 2-3.

¹⁷ See Rosenthal, supra note 3, at 197.

¹⁸ See A DICTIONARY OF GENETICS 60 (4th ed. 1990).

¹⁹ See Kamrin T. MacKnight, Comment, The Polymerase Chain Reaction (PCR): The Second Generation of DNA Analysis Method Takes the Stand, 9 SANTA CLARA COMPUTER & HIGH TECH. L.J. 287, 290 & n.10 (1993).

²⁰ See Hoeffel, supra note 12, at 470.

²¹ See H. ROBERT HORTON ET AL., PRINCIPLES OF BIOCHEMISTRY 10-8 to -10 (1993).

²² See Carrabino, supra note 4, at 475.

²³ See id.

²⁴ See id.

²⁵ See id. at 476.

²⁶ See Hoeffel, supra note 12, at 470. It is variations in the ordered structure of these bases along the DNA chain that determines which gene will be encoded and its form. See Rosenthal, supra note 3, at 198.

²⁷ See Hoeffel, supra note 12, at 470.

²⁸ See id.

²⁹ Id.

³⁰ See id. 31 See id.

³² See Carrabino, supra note 4, at 476. An individual's DNA will usually remain constant throughout his or her life. See Hoeffel, supra note 12, at 470. However, rare DNA mutations do occur. See id.

³³ See Carrabino, supra note 4, at 476.

³⁴ See id. The sequence of most of the bases does not vary between individuals. See id. Hence, humans share most physical characteristics (e.g., two arms, two legs, etc.). See id.

³⁵ See Jeffreys, A.J. et al., Individual-Specific ‘Fingerprints’ of Human DNA, 316 NATURE 76, 78 (1985)CrossRefGoogle Scholar (describing identical twins’ DNA fingerprints as indistinguishable); McElfresh, Kevin C. et al., DNA-Based Identity Testing in Forensic Science, 43 BlOSCIENCE 149, 153 (1993)CrossRefGoogle Scholar (noting that only identical twins have similar DNA); Rosenthal, supra note 3, at 197 (same).

³⁶ See Hoeffel, supra note 12, at 470.

³⁷ See id. The three million base pairs that vary among individuals are out of three billion such pairs in each DNA molecule. See id.

³⁸ See id. Polymorphisms are variations that occur in a generally uniform fundamental structure. See Carrabino, supra note 4, at 476-77 & n.33.

³⁹ See Carrabino, supra note 4, at 477; see also Hoeffel, supra note 12, at 471 (explaining that “the DNA profiling technique distinguishes among individuals by focusing on several highly polymorphic or ‘hypervariable’ sections of the DNA“).

⁴⁰ See Hoeffel, supra note 12, at 471.

⁴¹ See Carrabino, supra note 4, at 477.

⁴² See Marjorie Shaffer, NRC Report Calls DNA Testing an Accurate Way to Pinpoint Suspects, BIOTECH. NEWSWATCH, May 6, 1996, at 12, available in LEXIS, Genmed Library, Rxmega File.

⁴³ See Begley et al., supra note 5, at 24.

⁴⁴ See James Podgers, Decisions Split on DNA Admissibility: Differing Results Illustrate Impact of Supreme Court's Daubert Ruling, A.B.A. J., Dec. 1994, at 54, 54.

⁴⁵ See Carrabino, supra note 4, at 477. There also exists a third method called “DNA base sequencing.” See Hoeffel, supra note 12, at 475. Research labs use this method to discover the exact base sequence of the sample DNA strand. See id. It has not yet gained enough general acceptance to be used in DNA forensic testing. See id.

⁴⁶ See Carrabino, supra note 4, at 477; Hoeffel, supra note 12, at 471 (noting that the ratio of labs using restriction fragment length polymorphism (RFLP) and polymerase chain reaction (PCR) is three to one).

⁴⁷ See Carrabino, supra note 4, at 477.

⁴⁸ See Podgers, supra note 44, at 54. Forensic blood or semen is often dried, and technicians must extract it from clothing and various surfaces. See Hoeffel, supra note 12, at 472.

⁴⁹ See Hoeffel, supra note 12, at 472.

⁵⁰ See Podgers, supra note 44, at 54.

⁵¹ See Armstead v. State, 673 A.2d 221, 228 (Md. 1996) (describing the process by which restriction enzymes act as “chemical ‘scissors'” to cut the DNA chain wherever a specific sequence of nucleotides exists); Podgers, supra note 44, at 54 (same). The same number and length of DNA fragments is produced in a particular individual each time a specific restriction enzyme is used. See Hoeffel, supra note 12, at 472. The enzymes would cut every individual's DNA in the same place if everyone's DNA were the same. See id. However, each individual's DNA is not the same. See id. Hence, the lengths of cut DNA segments vary among individuals. See id.

⁵² See Podgers, supra note 44, at 54.

⁵³ See id. This process is known as “electrophoresis.” See Carrabino, supra note 4, at 478.

⁵⁴ See Carrabino, supra note 4, at 478; MacKnight, supra note 19, at 296-97 (describing how electrophoresis causes DNA fragments to separate according to their size and weight).

⁵⁵ See Podgers, supra note 44, at 54. This procedure, known as “Southern Blotting,” is named after E.M. Southern, who developed this method at the University of Edinburgh. See Hoeffel, supra note 12, at 473. The procedure allows technicians to visualize the fragmented DNA patterns. See Southern, E.M., Detection of Specific Sequences Among DNA Fragments Separated by Gel Electrophoresis, 98 J. MOLECULAR BIOLOGY 503, 503-17 (1975)CrossRefGoogle Scholar (describing the steps of the process).

⁵⁶ See Podgers, supra note 44, at 54.

⁵⁷ See id.

⁵⁸ See id. The use of a “bar code” to describe this result may be misleading. Unlike a supermarket bar code, the DNA band pattern is very fuzzy. See Hoeffel, supra note 12, at 474.

⁵⁹ See Podgers, supra note 44, at 54.

⁶⁰ See Carrabino, supra note 4, at 479; Judith A. McKenna et al., Reference Guide on Forensic DNA Evidence, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 273, 287 (Federal Judicial Ctr. ed., 1994) (noting the need for a substantial DNA sample for full and repeat testing, which may verify or refute the initial test). Many crime labs do not have the facilities to manage the radioactive reagents required by RFLP. See MacKnight, supra note 19, at 298-99.

⁶¹ See Carrabino, supra note 4, at 480.

⁶² See id. PCR testing works on small samples that are months or many years old. See id. The AmpliType DQ-alpha test kit is the prevailing PCR test. See MacKnight, supra note 19, at 306. DQ-alpha testing focuses on the polymorphic human leukocyte antigen DQ-alpha gene, identifying it with primers. See id.

⁶³ See MacKnight, supra note 19, at 306. RFLP uses noncoding regions of the genome to detect variation between samples. See Nowak, Rachel, Forensic DNA Goes to Court with O.J., 265 SCIENCE 1352, 1353 (1994)CrossRefGoogle Scholar. However, PCR analysis detects variation in actual genes, which show far less variation from one person to another than the noncoding regions. See id.

⁶⁴ MacKnight, supra note 19, at 304.

⁶⁵ See McKenna et al., supra note 60, at 287-88 (noting that PCR can make millions of copies of the DNA sample in only a few hours). By using PCR, technicians are able to produce a sufficient quantity of DNA fragments to perform DNA analyses. See LORNE T. KIRBY, DNA FINGERPRINTING: AN INTRODUCTION 75-76 (1990) (describing DNA amplification); McKenna et al., supra note 60, at 287-88 (explaining PCR amplification).

⁶⁶ See LANSING M. PRESCOTT ET AL., MICROBIOLOGY 291-92 (2d ed. 1993); MacKnight, supra note 19, at 305.

⁶⁷ See PRESCOTT ET AL., supra note 66, at 291.

⁶⁸ See id.

⁶⁹ See id.

⁷⁰ See id.

⁷¹ See id.

⁷² See id.

⁷³ See Karla K. Hotis, Note, The Admissibility of PCR-Based DNA Evidence: State v. Lyons, 37 JURIMETRICS J. 495, 496 (1997).

⁷⁴ See NRC REPORT, supra note 15, at 65-67.

⁷⁵ See MacKnight, supra note 19, at 315-19; cf. Thompson, William C. & Ford, Simon, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 VA. L. REV. 45, 64-76 (1989)CrossRefGoogle Scholar (discussing possible sources of contamination during RFLP analysis that are similar to those occurring during PCR analysis).

⁷⁶ See MacKnight, supra note 19, at 314-15.

⁷⁷ See CONCISE ENCYCLOPEDIA BIOLOGY 32 (Thomas A. Scott ed. & trans., 1996).

⁷⁸ See MacKnight, supra note 19, at 314-15 (noting the possibility of contamination during PCR due to allele drop-out).

⁷⁹ See id.

⁸⁰ See Rosenthal, supra note 3, at 200.

⁸¹ See id.

⁸² See id.

⁸³ See id. The reliability of the random population sample increases with the size of the sample population. See id. However, this method is still limited. See id. For example, if the test sample does not match 100 samples taken, all that can be said is that the test sample pattern does not occur in that 100-sample database. See id.

⁸⁴ See id. at 200-01.

⁸⁵ See Nowak, supra note 63, at 1353.

⁸⁶ See id.

⁸⁷ See id.

⁸⁸ See id.

⁸⁹ See id.

⁹⁰ See id. Multiplying the “ceiling” frequencies for each of the subpopulations together produces the match probability for the whole profile. See id. In addition, the National Research Council (NRC) set the lowest figure for any allele calculation at five percent. See Aldhouse, Peter, Geneticists Attack NRC Report as Scientifically Flawed, 259 SCIENCE 755, 755 (1993)CrossRefGoogle Scholar.

⁹¹ See Nowak, supra note 63, at 1352-53.

⁹² See id.

⁹³ See Scheck, Barry C., DNA and Daubert, 15 CARDOZO L. REV. 1959, 1972 (1994)Google Scholar; Devlin, B.et al., Statistical Evaluation of DNA Fingerprinting: A Critique of the NRC's Report, 259 SCIENCE 748, 748 (1993)CrossRefGoogle Scholar (criticizing the NRC's proposal).

⁹⁴ Nowak, supra note 63, at 1354 (first and last alterations in original).

⁹⁵ See, e.g., Commonwealth v. Lanigan, 596 N.E.2d 311, 314 (Mass. 1992) (holding the method of calculating the odds of a random DNA match unacceptable); State v. Vandebogart, 616 A.2d 483, 494 (N.H. 1992) (holding that evidence of a match is inadmissible because the FBI methods used to determine “population frequencies” were not generally accepted by the scientific community).

⁹⁶ 96 See United States v. Chischilly, 30 F.3d 1144, 1152 (9th Cir. 1994). Due to the ‘“raging controversy'” over DNA testing, the defendant argued that admission of “evidence of a match between his blood sample and semen found on the victim's clothing” was reversible error. Id.

⁹⁷ See Friend, supra note 1, at 4D.

⁹⁸ See Eric A. Fischer, DNA Ready to Clear, Implicate, COM. APPEAL (Memphis), Sept. 8, 1996, at 5B, available in LEXIS, News Library, Curnws File. Eric Fischer, Director of the Board on Biology at the NRC in Washington, D.C., recently served as the director of studies for the NRC's Committee on DNA Forensic Science. See id.

⁹⁹ Shaffer, supra note 42, at 12 (quoting NRC Report).

¹⁰⁰ See Marshall, supra note 2, at 803; Shaffer, supra note 42, at 12.

¹⁰¹ See id. This signals the return of the Product Rule. See id.

¹⁰² See Friend, supra note 1, at 4D. However, race-defined databases alone may be too simple. Larger populations might be composed of smaller genetically diverse subgroups. See R.C. Lewontin & Daniel L. Hartl, Population Genetics in Forensic DNA Typing, 254 SCIENCE 1745, 1746^7 (1991).

¹⁰³ See Marshall, supra note 2, at 803.

¹⁰⁴ Id.

¹⁰⁵ See id. While the NRC report has won over one of the most prominent skeptics on the issue of DNA testing's validity, the problem now is “the lack of standardized, blind proficiency testing of DNA forensic labs.” Id.

¹⁰⁶ See Fischer, supra note 98, at 5B (stating that “[scientific questions should no longer keep DNA evidence from being accepted” and that “[i]t is time to welcome this powerful new tool fully into the courtroom“).

¹⁰⁷ See Marshall, supra note 2, at 803.

¹⁰⁸ See id. (arguing that the “odds of laboratory error … may be more significant than the odds of a chance DNA match“).

¹⁰⁹ Fischer, supra note 98, at 5B.

¹¹⁰ See Crime Labs Get Ignored and Criminals Go Free, USA TODAY, Aug. 22, 1996, at 12A. Two of the nation's busiest labs, the Los Angeles and New York labs, are among the 60% that have not met the minimum accreditation standards of the American Society of Crime Lab Directors. See id.

¹¹¹ See id.

¹¹² See Peter Eisler, Calif, 's Crisis in a Word: O.J. Labs Point to Case in Their Campaign for More Funding, USA TODAY, Aug. 20, 1996, at 7A, available in 1996 WL 2066267.

¹¹³ See Case Closed: Mich. State Police Use DDC System to Solve Temp. Problems (Direct Digital Control), AIR CONDITIONING HEATING & REFRIGERATION NEWS, Aug. 30, 1993, at 20.

¹¹⁴ See Becky Beaupre, Backlogged Labs Put Justice on Hold, USA TODAY, Aug. 20, 1996, at 7A. Raymond Holder grew up in a drug-infested neighborhood. See id. He worked hard as a prep cook to avoid the strife around him. See id. He swore he would never go to jail. See id.

¹¹⁵ See id.

¹¹⁶ See id.

¹¹⁷ See id.

¹¹⁸ See Lewis v. State, 451 S.E.2d 116, 117 (Ga. Ct. App. 1994). A lab technician took two blood samples from Lewis. See id. An officer then put the samples in an evidence locker. See id. A discrepancy arose concerning the locker numbers after a technician removed the samples. See id. The officer testified he believed he might have written down the wrong locker number. See id.

¹¹⁹ See State v. Ramos, No. 93-2448-CR, 1994 Wise. App. LEXIS 978, at *2 (Wis. Ct. App. Aug. 10, 1994) (reversing and remanding for a new trial because defendant was deprived of the opportunity to prepare a full defense to the State's case, which was significantly enhanced by the blood splatters on defendant's shirt). The prosecution in this case was “livid” because the crime lab had missed the “extremely probative” blood on the shirt. See id. at *3.

¹²⁰ See Michael Isikoff & Mark Hosenball, One Fed's War on the FBI, NEWSWEEK, Sept. 25, 1995, at 45, 45.

¹²¹ Frederic Whitehurst is a dedicated, by-the-book police officer and an expert in forensic chemistry. See id.

¹²² See id.

¹²³ See id.

¹²⁴ See id. For instance, after being confronted by Whitehurst with its sloppy methodology, the FBI had to change its findings on forensic tests done in the World Trade Center bombing case. See id.

¹²⁵ See Marshall, supra note 2, at 804.

¹²⁶ See id.

¹²⁷ See Becky Beaupre, Some Say the Solution Lies in Lab Accreditation, USA TODAY, Aug. 21, 1996, at 9A. New York passed an act in 1994 mandating accreditation of the state's 15 crime labs by 1997. See id.; see also N.Y. EXEC. LAW § 995-b (McKinney 1996) (requiring the Commission on Forensic Science to establish a program of accreditation for all forensic laboratories in New York). As of 1996, eight had done so. See Beaupre, supra, at 9A.

¹²⁸ See Beaupre, supra note 127, at 9A.

¹²⁹ Id.

¹³⁰ Nowak, supra note 63, at 1354.

¹³¹ See Beaupre, supra note 127, at 9A (“There is no question that (crime labs) need more oversight…. They need external control.” (quoting James Starrs)).

¹³² See Fischer, supra note 98, at B5.

¹³³ See supra Part Il.C.l.a (explaining the process of declaring a DNA match through RFLP testing).

¹³⁴ See Kaye, D.H., The Relevance of “Matching” DNA: Is the Window Half Open or Half Shut?, 85 J. CRIM. L. & CRIMINOLOGY 676, 679-80 (1995)CrossRefGoogle Scholar.

¹³⁵ See id. at 679 & n. 15.

¹³⁶ See id. at 680. Reproducibility studies allow technicians to find the likely extent of measurement error. See id. For example, a lab may compare DNA fragments obtained from a woman's vaginal swab with DNA from blood taken from the same woman. See id. This type of reproducibility study allows the lab to choose a wide enough “window” to result in a match when two samples come from the same source. See id.

¹³⁷ See id. at 681.

¹³⁸ See Lee v. State, 931 S.W.2d 433, 434-35 (Ark. 1996). The court considered blood samples “interchangeable items” that “require a more conclusive chain of custody than items of evidence which are subject to positive identification.” Id. at 437.

¹³⁹ See Smith v. State, 677 So. 2d 1240, 1245 (Ala. Crim. App. 1995). The defendant claimed DNA results were improperly admitted into evidence due to a “missing link” in the chain of custody of evidence collected by a rape-kit examination. See id.

¹⁴⁰ See id.

¹⁴¹ See id.

¹⁴² See id.

¹⁴³ See id. at 1246 (citing cases where courts have used the “reasonable probability” standard for the chain of custody).

¹⁴⁴ See id. at 1247 “The purpose for requiring that the chain of custody be shown is to establish a reasonable probability that there has been no tampering with the evidence.” Id. at 1245.

¹⁴⁵ See id. at 1246 (quoting United States v. Anderson, 654 F.2d 1264, 1267 (8th Cir. 1981)). The Anderson court held that as long as it is persuaded that the evidence has been adequately safeguarded, “the jury should be permitted to consider and assess it in light of surrounding circumstances.” Anderson, 654 F.2d at 1267.

¹⁴⁶ See Becky Beaupre & Peter Eisler, Crime Lab Crisis: Staff, Funding Haven't Kept Up with Caseload, USA TODAY, Aug. 20, 1996, at 1A.

¹⁴⁷ See id.

¹⁴⁸ See Eisler, supra note 112, at 7A.

¹⁴⁹ See id.

¹⁵⁰ People v. Simpson, No. BA 097211 (Cal. Super. Ct. Oct. 3, 1995); see also Thompson, William C., DNA Evidence in the O.J. Simpson Trial, 67 U. COLO. L. REV. 827 (1996)Google Scholar (discussing how the Simpson case revealed serious problems regarding the collection and handling of biological samples and the potential for cross-contamination of evidence).

¹⁵¹ See Beaupre & Eisler, supra note 146, at 1A.

¹⁵² See Snowden v. State, 574 So. 2d 960, 966 (Ala. Crim. App. 1990) (holding that “attacks on the validity of the underlying statistics go to the weight of such evidence, not its admissibility“).

¹⁵³ See id.

¹⁵⁴ See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

¹⁵⁵ See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 586 (1993).

¹⁵⁶ See FED. R. EVID. 702.

¹⁵⁷ See Scheck, supra note 93, at 1959.

¹⁵⁸ See id.

¹⁵⁹ See id. Under Frye, “[i]f a substantial controversy exists among reputable scientists, the technique is … not ready for court.” Id. at 1959-60. Judges must simply make judgments on the existence of a substantial controversy. See id. at 1960.

¹⁶⁰ See id.

¹⁶¹ See id. at 1961. The opinion has been praised for making judges consider factors an empirical scientist considers when determining whether an experiment has been verified. See id. at 1959.

¹⁶² Imwinkelried, supra note 9, at 1252.

¹⁶³ See Swafford, Lori L., Comment, Admissibility of DNA Genetic Profiling Evidence in Criminal Proceedings: The Case for Caution, 18 PEPP. L. REV. 123, 144-46 (1990)Google Scholar (remarking how DNA evidence is “unlike that presented with fingerprinting, footprint or bite mark evidence, [it] is highly technical, incapable of observation^ and requires the jury to either accept or reject the scientist's conclusion that it can be done” (quoting Andrews v. State, 533 So. 2d 841, 850 (Fla. Dist. Ct. App. 1988)).

¹⁶⁴ Armstead v. State, 673 A.2d 221, 238 n.26 (Md. 1996) (quoting R.C. Lewontin, Letter, 372 NATURE 398,398(1994)).

¹⁶⁵ See, e.g., Commonwealth v. Crews, 640 A.2d 395, 402 (Pa. 1994); cf Armstead, 673 A.2d at 241 (stating that the better approach “is to treat the match and the statistics as inseparable components of DNA evidence“).

¹⁶⁶ See Armstead, 673 A.2d at 241-42.

¹⁶⁷ One commentator notes that evidence of statistical probabilities does not remove from the jury the issue of identity “because jurors are free in any case to disregard or disbelieve expert testimony.” Fleming, Thomas M., Annotation, Admissibility of DNA Identification Evidence, 84 A.L.R. 4th 313, 338 (1991)Google Scholar. Therefore, juries must still fully deliberate the issue.

¹⁶⁸ See supra Part IV.A-B (discussing match window and chain of custody issues).

¹⁶⁹ See supra text accompanying notes 160-61 (describing the key question under a Daubert inquiry).

¹⁷⁰ An example of an “essential” standard would be the use of acceptable chemical “primers” for PCR testing. See PRESCOTT ET AL., supra note 66, at 291-92.

¹⁷¹ “Reasonable certainty” denotes a standard less stringent than “beyond a reasonable doubt,” but requires a formidable measure of proof. See, e.g., United States v. Amuny, 767 F.2d 1113, 1123 (5th Cir. 1985) (defining “reasonable certainty” as “requir[ing] something more than a showing of probable cause but something less than proof beyond a reasonable doubt” and stating that it is a “high standard“).

¹⁷² See Begley et al., supra note 5, at 24 (noting that one commentator has referred to DNA evidence as “a fist on the scales of justice“).

¹⁷³ See Reidinger, supra note 14, at 59 (stating that “Daubert came to the right result; it's an anti-junk science opinion“).

¹⁷⁴ See supra Part II.D (discussing the reliability of DNA test results).

¹⁷⁵ See Fleming, supra note 167, at 341-42 (discussing State v. Schwartz, 447 N.W.2d 422 (Minn. 1989), in which the Minnesota Supreme Court disallowed population frequency statistics associated with DNA typing “due to their exaggerated impact on the trier of fact” and acknowledged that juries will often “use [probability calculations] as a measure of the probability of the defendant's guilt or innocence” and otherwise give complex scientific evidence undue weight and deference).

¹⁷⁶ See Imwinkelried, supra note 9, at 1247 (noting that courts have realized that scientific evidence often “castfs] a spell” over jurors).

¹⁷⁷ The Sixth Amendment provides, in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. CONST, amend. VI. For cases addressing the defendant's Sixth Amendment right in relationship to the admission of DNA evidence, see, for example, State v. Green, 867 P.2d 366, 372 (Kan. 1994) (holding that right to speedy trial is not violated by continuance issued to gather DNA evidence) and Armstead v. State, 673 A.2d 221, 224-25 (Md. 1996) (noting that trial court held that admission of DNA evidence did not deny defendant's constitutional right to confrontation; issue not raised on appeal).

¹⁷⁸ For example, judges have discretion to exclude evidence if there is a “danger of unfair prejudice” on the jury that outweighs the probative value of the evidence. See FED. R. EVID. 403. Judges rule on the admissibility of such evidence as crime scene photographs, bloody articles of clothing and unauthenticated documents, which can have a devastating impact on the jury. See, e.g., United States v. Hilt, 981 F.2d 422, 423-24 (9th Cir. 1992) (holding that the prejudicial effect of photograph of defendant's automatic weapon also depicting several other weapons not owned by defendant outweighed its probative value; evidence created improper inference that defendant was a gun enthusiast).