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National research Council (US) Committee top top DNA Forensic Science: an Update. The evaluation of Forensic DNA Evidence. Washington (DC): national Academies push (US); 1996.


In the preceding chapters, we have tried to clarify the scientific issues affiliated in forensic DNA testing. This chapter discusses the legal ramifications of the committee"s conclusions and recommendations. It defines the most crucial procedural and evidentiary rules that influence the use of forensic DNA evidence, identifies the concerns of scientific fact that have actually been disputed in court, and reviews legal developments.1

All forensic methods for individualization—fingerprints, dentist impressions, striations on bullets, hair and also fiber comparisons, voice spectrograms, neutron-activation analysis, blood-grouping and serum-protein and enzyme typing, as well as DNA profiling—demand an ability to complement samples v reasonable accuracy through respect to characteristics that can aid to differentiate one resource from another. If such proof is come be beneficial in court, scientifically acceptable procedures must permit the dependable measurement and also comparison of physics features. Likewise, a scientific basis need to exist for concluding that appropriately performed comparisons can distinguish feasible sources.

As to the last issue—the ability to differentiate in between sources—the courts have actually demanded a an ext convincing reflecting of the exact level of individualization succumbed by DNA tests than by any type of other commonly used forensic technique. Part courts have deemed it important for experts not just to demonstrate that DNA profiles commonly vary native one human being to another, but also to produce uncontroversial, quantitative approximates of just how rare the identifying features are within specific groups and also subgroups. Whether many other develops of identification-evidence can survive equivalent demands is doubtful.2 Jurists and also legal scholars have disputed whether DNA proof warrants this one-of-a-kind treatment.3 we take no sides in together legal debates, yet we carry out emphasize that the two issues—the clinical acceptability of the laboratory an approach for comparing samples and the idea that the attributes studied in the laboratory space probative that identity—are distinct. Consequently, this chapter explains the ramifications of ours conclusions around the state that scientific expertise both for testimony about the degree to i m sorry DNA samples match and also for testimony about the probabilities of together matches.

Legal Standards and also Procedures

Whether scientific evidence is admissible in criminal instances depends on even if it is the proof tends come prove or disprove a reality that, under the applicable law, can matter to the outcome of the case; whether the expert presenting the proof is qualified; even if it is the info is obtained from scientifically acceptable procedures; and whether the potential for unfair prejudice or time-consumption considerably outweighs the probative worth of the information. We talk about those general principles and then think about their application to DNA evidence. We likewise describe pretrial and also trial measures that might help courts to with decisions ~ above admissibility and also to improve the quality and also use of the scientific evidence at trial. We start with the linked procedural concerns that arise in connection with a defendant"s inquiry for discovery, retesting, or expert assistance.

The Defendant"s appropriate to Discovery

The 1992 nationwide Research the supervisory board (NRC) report stated that ""all data and also laboratory records generated by evaluation of DNA samples must be do freely easily accessible to every parties," and also it defined that "all relevant details . . . Can include original materials, data sheets, software program protocols, and information around unpublished databanks" (NRC 1992, p 150, 148). Certainly, there room no strictly clinical justifications for withholding details in the discovery process, and also in chapter 3 we questioned the prestige of full, composed documentation of all aspects of DNA laboratory operations. Such documentation would facilitate technical testimonial of activities work, both within the laboratory and also by outside experts.

The rule of discovery determine the circumstances under which a defendant deserve to compel the manufacturing of together records. Because many complex technical, scientific, and also statistical issues impact the usage of DNA evidence, there will be cases in which defendants will contend that without considerable and comprehensive information, they are unable to prepare because that trial adequately.4 Although some courts have actually ordered for free discovery, providing accessibility to the documentation and information would broaden the scope of exploration in part jurisdictions. Although part courts have ordered liberal discovery with regard come DNA testing,5 various other courts have actually taken a an ext restrictive approach. 6 In jurisdictions that interpret their discovery rules as using only to created reports, the defense cannot obtain discovery of laboratory documents if the DNA examiner fails to submit a written report or to combine a matter into a report, even if the examiner renders an dental report.7 Our referral that all aspects of DNA trial and error be completely documented is most beneficial when this documentation is discoverable in advance of trial.


Experts who present and interpret the results of DNA tests should be "qualified by knowledge, skill, experience, training or education" (Fed. R. Evid. 702). There is no well-defined threshold of understanding or education and learning that a witness have to exceed to qualify together an expert. The concern is whether the human being has sufficient knowledge "to do it show up that his opinion or inference will aid the trier in the find for truth" (McCormick 1992, § 13, p 54).

Because DNA identification have the right to involve testimony as to laboratory findings, statistics interpretation of these findings, and also the underlying ethics of molecule biology, field of expertise in number of fields might be required. An skilled who is qualified to testify around laboratory techniques might not be qualified come testify around molecular biology, to estimate populace frequencies, or to create that an estimation procedure is valid. Consequently, an ext than one skilled witness might be needed.8

Nevertheless, if previous instances establish the the testing and also estimation measures are legit acceptable and if the computations are essentially mechanical, climate highly dedicated statistical specialization is no essential. Reasonable estimates of allele frequencies in major population groups can be obtained from traditional references, and also many quantitatively literate experts can use the appropriate formulas in Chapters 4 and 5 come compute the relevant profile frequencies or probabilities. Limitations in the expertise of a technician who applies a generally accepted statistical procedure deserve to be discover on cross-examination,9 and, if serious concerns arise, an ext knowledgeable specialists can be dubbed to attend to those questions.

In addition to hearing testimony from experts dubbed by the parties, a court might appoint professionals to report to it, rather than to the parties. 10 proposal that court-appointed experts should it is in used an ext in science-rich instances have typically been do (e.g., Fienberg 1989, ns 14), yet surveys suggest that such appointments space rare (Cecil and Willging 1994, ns 529 and also n 2). Some worries that arise through regard to DNA testing seem specifically suitable for aid from a neutral expert. Well-qualified experts might assist a court or jury in understanding basic principles that DNA testing, how such steps such as RFLP- and PCR-based experimentation work, and the extent and also effect that departures from Hardy-Weinberg (HW) proportions and linkage equilibrium (LE). Court-appointed experts might also carry out information around the ingredient of databases and also the scientific literary works dealing with details issues. Part courts have actually appointed experts to resolve general concerns related come DNA profiling. E.g., United says v Bonds, 12 F.3d 540 (6th Cir. 1993) and also United claims v Porter, 1994 WL 742297 (DC Super. Ct., Nov. 17, 1994). More controversial is whether a court should appoint its own skilled instead of an expert for the defense once there are an ext specific disputes, such as the an accurate location that a tape on one autoradiograph. A court could conclude that case-specific issues are much better resolved with witnesses favored by and also reporting to the parties.11

A court have the right to seek to small differences in between opposing experts by a range of techniques. A court might direct specialists to address specific issues in your reports or pretrial recaps of testimony. ~ those have actually been exchanged, the court might then instruct every side to recognize all statements in an the opposite expert"s opinion that room disputed and to define the basis because that the disagreement. Controverted worries can be more narrowed in ~ a pretrial conference (see Schwarzer 1994). Actions such as these might, because that instance, sway statistical specialists to furnish a ideal estimate in addition to a selection of approximates so that the jury will have actually a better sense that the degree of disagreement in between the 2 sides. Also if an professional responds that not sufficient is recognized as however to make a statistically valid estimate, the court will have actually obtained added information.

Having more information may help a court in judgment on obstacles to the admissibility of skilled testimony and also may permit it to make an ext effective to plan for exactly how the expert testimony must be taken on at trial. In some cases, judges have actually departed from the timeless order the presenting testimony to allow opposing specialists to testify consecutively rather than wait for the prosecution come conclude that is case. In suitable circumstances, courts have permitted an expert"s straight testimony to be gift in composed or other recorded type rather 보다 in person.

General Acceptance and also Sound Methodology

The modern technology used to research VNTRs, STRs, or various other loci must accomplish the standard forced of clinical evidence. In the joined States, two significant standards exist for deciding whether clinical findings will certainly be admitted into evidence: the "general-acceptance" test and also the "sound-methodology" standard. In addition, some jurisdictions have embraced special law that provide for the admissibility the genetic testing in general or of DNA analyses in details in criminal or civil cases.12 If a timely objection is raised, the referee must recognize whether the applicable standard has been met.

The general-acceptance conventional was very first articulated in an significant 1923 commonwealth case, Frye v united States, 293 F. 1013 (DC Cir. 1923). In jurisdictions the follow Frye, the proponent that the scientific proof must create that the underlying theory and also methodology space generally embraced within the relevant portions of the clinical community. The organic and technical principles underlying the forensic techniques for characterizing DNA variations have actually generated tiny controversy in court.13 Indeed, the 1992 NRC report proposed the courts "take judicial notification of scientific underpinnings that DNA typing,"14 and also many courts have actually done so.15 Courtroom conflict has revolved instead roughly the application of those ethics to forensic samples and also the procedures for declaring a match and interpreting the importance.

The sound-methodology standard is obtained from paragraph in the federal Rules that Evidence. In Daubert v Merrell Dow Pharmaceuticals, 113 S.Ct. 2786 (1993), the supreme Court organized that these rules implicitly jettison general acceptance as an absolute prerequisite come the admissibility of clinical evidence. Rather of the Frye test, the court prescribed a wider framework because that deciding whether proposed testimony has adequate scientific validity and also reliability to be admitted as appropriate "scientific knowledge" that would "assist the trier the fact." In that framework, the absence of general acceptance weighs versus admissibility however is no invariably fatal. The court discussed other factors that could be considered. That nonexhaustive list has the degree to which the theory and an innovation have to be tested, the visibility of a body of peer-reviewed studies, and also the known error rates of the procedure.

Before Daubert, many state and federal courts had understood their rules of proof as not including a rigid necessity of general acceptance. The 1992 NRC report (p 137) described the "helpfulness standard" supplied in those jurisdictions together encompassing the adhering to factors: "general accept of scientific principles," "qualifications of professionals testifying about the brand-new scientific principle, the use to which the new an approach has to be put, the technique"s potential for error, the presence of committed literature discussing the technique, and also its novelty." due to the fact that Daubert, countless state court have suggested that their "helpfulness standard" was essentially identical through the method articulated in Daubert; a few have characterized their rule as an ext permissive.16

Labels favor "general acceptance," "sound methodology," and "helpfulness" are simply that—labels. Cases decided in every jurisdiction aid to define the scientific ar in which the degree of scientific acceptance is to be ascertained, the extent of disagreement that have the right to be tolerated, the information that might be offered to gauge the degree of consensus, and also the specific factors various other than general acceptance the bear ~ above relevance and helpfulness.17 The degree of scientific consensus is necessary to the admissibility the scientific proof in every jurisdictions, and pretrial hearings in hotly contested cases have it s long months and generated hundreds of pages the testimony probing the opinions of professionals on various facets of DNA profiling. The courts have examined affidavits or testimony from researchers selected through the parties, certain papers in clinical periodicals, the works of scientific research journalists, the human body of court opinions, and other scientific and legal literature, including the 1992 NRC report.

Balancing and Weight

Even in jurisdictions wherein a DNA-identification technology meets the applicable typical of scientific acceptance or validity, the results of particular tests and also the manner of your presentation deserve to be subject to challenge. As soon as the threats of unfair prejudice, time-consumption, and also confusion that the concerns substantially outweigh the probative value of particular evidence, the attempt court should exclude the evidence. E.g., Fed. R. Evid. 403; McCormick 1992, § 185. And even as soon as the court admits expert testimony, the clinical basis and also quality that the testimony have the right to be struck before the trier the fact. Not all professional testimony is equally convincing, and a trier of reality may choose to give admissible evidence little weight in getting to its verdict.

Trends in the Admissibility the DNA Evidence

Application of the requirements for admitting scientific evidence to the admissibility that DNA profile evidence has created divergent results. In the united States, the very first wave of criminal instances involving DNA identification started in 1986.18 The emphasis was on the difficulties raised in delivering the technology of modern-day molecular biology native the medical and genetics laboratories, which usually dealt in fresh samples and also easily interpretable diallelic probes, come the forensic laboratory, which must handle aged and also exposed stains and also usually uses an ext complex, multiallelic genetic systems. Nevertheless, the underlying theory that DNA profiling is qualified of help to recognize the source of a DNA sample was never ever in doubt, expert testimony because that the prosecution was rarely countered, and also courts readily admitted the findings of advertising laboratories.19 In the wake of those early cases, countless experts native several techniques scrutinized the occupational of commercial and also government laboratories (Kaye 1991, ns 357 n 18). The result plethora that questions around laboratory procedures and also analyses initiated a 2nd wave of cases in which miscellaneous courts—including the can be fried courts that Georgia,20 Massachusetts,21 and Minnesota22—excluded at the very least some facets of DNA evidence.23 Nevertheless, in many cases, the courts ongoing to organize DNA matches and also probabilities admissible also in the confront of conflicting skilled testimony.24

After publishing of the 1992 report, commentators pointed come "a 3rd wave of cases . . . Crashing down upon this battered legal shoreline" (Kaye 1993, ns 103). Those cases focused less on the laboratory techniques for characterizing and also matching DNA and more on the statistical methods for interpreting the meaning of similarities in DNA samples. Many opinions in that period lagged behind the scientific publications, which responded forcefully to early speculations and questionable analyses of the importance of departures from the assumptions of statistical freedom of alleles in ~ and among VNTR loci. Indeed, some courts reasoned that the activity of clinical opinion was basically irrelevant under Frye as long as respected scientists ongoing to oppose the statistical methods. E.g., human being v Wallace, 14 Cal. App. 4th 651, 17 Cal. Rptr. 2d 721(1993).

Even an ext recently, v the diffusion that PCR-based methods into the forensic realm, a fourth wave of situations has arrived. The newest situations involve assaults on the steps for ensuring the accuracy of together analyses and also questions around the quantitative translate of hereditary typing. Again, the underlying theory is no seriously questioned, and laboratories" capability (at least in principle) to obtain informative results is no in dispute. Similar to the later VNTR profiling cases, defendants have questioned whether the protocols used for forensic work-related are sufficient to avoid false-positive results, and also they have tested the steps for estimating the frequencies of the genotypes that space detected after ~ PCR amplification. Come clarify the legal relationship of our clinical conclusions and recommendations regarded typing methods and statistical issues, us turn currently to a more detailed testimonial of these problems as they have emerged in the cases and also legal commentary.

VNTR Profiling

Judicial recognition of the clinical acceptance that the structures of DNA analysis is consistent with ours conclusion the the techniques of DNA analysis surveyed in this report are firmly grounded in molecular biology. Once VNTR profiling is done with due care, the results are very reproducible, and comparisons at 4 or more loci are almost certain to exclude the innocent. Come the ideal of ours knowledge, no state or commonwealth court has held that VNTR profiling is inadmissible top top the grounds that it is not scientifically embraced or sound.25 some courts have actually excluded VNTR matches since of misgivings end the statistics interpretation that the similarity in the profiles (we address this below), however there seems small doubt in the courtroom, together in the laboratory, the properly conducted VNTR profiling is a scientifically acceptable procedure to help to recognize the origin of specific biological materials.26

The steps for matching and also binning VNTR fragments questioned in thing 5 have provoked much more dissension. Defendants have said that the "window" within which one examiner might declare the the electrophoretic bands that VNTRs from 2 samples the DNA enhance is too wide.27 The few reported opinions to comment on the dimension of the enhance window, however, have simply organized that the FBI"s home window is not so big as come render that is analyses the VNTR test outcomes inadmissible. Together the explanation in chapter 5 indicates, because wide windows boost the chance that a match will be declared—and in ~ the very same time rise the approximates of the frequency that a equivalent profile—a broad variety of match windows is acceptable.28

Calculations the the population or subpopulation frequency of VNTR file that accomplish the statistical criterion for a enhance require approximates of the allele frequencies in the reference group. We said in thing 5 that defining these alleles through floating bins is statistically preferable come the fixed-bin strategy but requires access to a computerized database. That conclusion does not suggest that the use of solved bins is scientifically unacceptable.29 fixed bins are more widely used and also understood, and when the referrals in thing 5 space followed, they provide a satisfactory approximation come floating bins.

When addressed bins room used, a dispute sometimes arises regarding the frequency that a fragment the lies close to the border of two bins. In thing 5, we provided that summing the frequencies of both bins, together recommended in the 1992 NRC report, will constantly give an upper bound on the allele frequency. At the very least one court has actually concluded that, in ~ the fixed approach, this summing is "the just methodology that deserve to be identified as being usually accepted" (United claims v Porter, 1994 WL 742297 ). As we have actually noted, however, acquisition the allele frequency indigenous the larger bin offers a better approximation come the much more accurate figure derived from floating bins.

PCR-Based Testing

Courts have had less suffer with evidence derived from PCR-based testing. PCR-based test-evidence, however, is being presented in a substantial variety of cases,30 and also courts in every jurisdiction have to decide whether this new mode the DNA inputting satisfies the applicable test because that admitting clinical evidence, nevertheless of whether RFLP-based proof has been admitted.31 In the report cases, judges, with the exception of a couple of dissenters, have held PCR-based methods sufficiently trustworthy to develop matches in between samples, under both the general-acceptance and also the sound-methodology standards.32 together we talk about later, however, the courts have actually been less hospitable to statistics calculations.

Some opinions distinguish VNTR trial and error from PCR-based testing. Castle characterize the previous as qualified of identifying a suspect yet describe PCR-based trial and error as "answer the inquiry of whether a suspect deserve to be removed as a donor."33 As described in thing 4, the separation, personal, instance loci used in present PCR-based exam are less polymorphic 보다 VNTR loci; together a result, the multilocus genotype frequencies from PCR-based tests commonly are no as tiny as those in VNTR typing.34 however that is a quantitative distinction rather than a sharp distinction. Furthermore, very small frequencies deserve to be obtained by testing at added loci.35

In finding PCR proof admissible, the courts have rejected a range of objections, few of which depend on language in the 1992 report. 36 The principal pertains to are the alleged absence of forensic experience with PCR testing37 and the opportunity of contamination.38 many courts have chose that those criticisms are pertinent come assessing the weight of the evidence but do no warrant the wholesale exemption of PCR-based tests.39

Laboratory Error

Defendants have challenged the admissibility of DNA results on the grounds that the protocols or procedures followed by the laboratory were poor to reduce the hazard of error sufficiently, the the activities failed come adhere to the proclaimed protocols, or the the laboratory failed to demonstrate its ability to form samples correctly on a series of external, blind proficiency tests. Courts have shown tiny inclination to exclude evidence on those grounds.40 back egregious departures from customary practices could well lead a court come exclude the evidence, the possibility of activities error ordinarily is stated to impact the weight rather than the admissibility that the evidence, e.g., Hopkins v State, 579 N.E. 2d 1297 (Ind. 1991) (departures native protocol). At the very same time, part courts, expressing worry over the impact of DNA evidence on jurors, have grafted a procedural safeguard onto the general-acceptance standard. Starting with human being v Castro, 144 Misc. 2d 956, 545 N.Y.S. 2d 985 (Sup. Ct. 1989), a minority of courts have treated one inquiry into a laboratory"s conforming in a specific case come a generally embraced protocol as crucial part of a pretrial hear under Frye.41

We emphasized the prominence of minimizing laboratory error in thing 3, where we called for scrupulous care in sample-handling and laboratory procedures, for regular participation in ability tests, and, at any time feasible, for steps that would market defendants the possibility for a second test by an independent laboratory. Those references rest not on a referee that current error prices are therefore high that test results are scientifically unacceptable, yet on a desire to minimize the incidence that errors to an extremely low value.

It is possible that courts will want to law compliance v such references as an element of admissibility come encourage laboratories to follow them.42 That an outcome is not compelled by Daubert or Frye, however in part jurisdictions a defendant does can examine physical evidence held through the government, and also this right has been understood to encompass the best to test or retest a sample in the government"s control.43

A variety of issues can arise even when the best to a second test is recognized. Walk the prosecution have a right to be present?44 when is the defendant"s request timely? How certain a request need to the defendant make?45 walk retesting by another laboratory suffice, or must the trial and error be excellent under defense supervision?46 go it issue whether the activities is a government, fairly than an independent nongovernment, laboratory?47 will the state pay if the defendant is indigent?

Of course, the ideal of indigent defendants to experienced assistance at state cost extends beyond the ideal to retest. In part circumstances, the constitution requires that indigent defendants be provided with accumulation to retain an ideal experts. The leading situation is Ake v Oklahoma, 470 U.S. 68 (1985). In Ake, the supreme Court reversed a conviction due to the fact that the trial court had refused to appoint an experienced to help the indigent defendant, who was relying on one insanity defense. However Ake was a resources case in i beg your pardon the defense search the aid of a psychiatrist, and also courts have actually differed in their interpretation of the hold (Harris 1992). Part courts have used Ake extensively to authorize all species of expertise; rather have restricted Ake come its specific facts, focusing on the form of help requested and also on even if it is the prosecution was seeking the fatality penalty (see Harrison v State, 644 N.E.2d 1243 ). Furthermore, courts differ in exactly how much the a particularized reflecting of need and potential prejudice a defendant need to make.48 Those sports in the translate of Ake have produced conflicting results as soon as indigent defendants have actually sought expert assistance with regard come DNA testing. Part courts have held the an experienced must it is in provided, 49 and others have found no such need.50

Instead of offering a defendant through an expert, a court might appoint an skilled to assist the court. As detailed in the earlier discussion of skilled witnesses, courts have actually been much more inclined to usage this procedure to investigate basic scientific worries related to DNA profiling 보다 to resolve controversies concerned the particulars of the DNA testing in a provided case. However, no dominion of law clearly compels such a limitation top top court-appointed experts.

Returning come the ramifications of recognizing a defendant"s appropriate to retesting anytime feasible, an overwhelming issues deserve to arise as to informing the jury the the defense"s fail to retest or of the outcomes of any type of retesting. May the prosecution discuss or introduce evidence about the defendant"s failure to request retesting or to introduce DNA-testing results?51 may it cross-examine defense experts about a fail to retest?52 may it attain discovery or testimony native an professional who conducted retesting because that the defense but whom the defense does not intend to speak to as a witness?53 The regulation with regard to those questions is much from clear.54 Implicated are state and also federal constitutional comes to emanating from due process55 and also effective-assistance-to-counsel provisions,56 together evidentiary doctrines together the attorney-client57 and also work-product privileges,58 and criminal-procedure issues related come discovery.59

Beyond every that, the recommendation to offer a defendant the opportunity to retest whenever possible leaves open up the question of how to proceed when a sample is too little to allow splitting. Some opinions imply that if the prosecution spend the proof in the food of testing, it will certainly not it is in constitutionally ban from introducing the outcomes as long as the acted in great faith.60 The can be fried Court has held that even a negligent fail to preserve evidence does no offend early process.61 However, as one commentator notes, a "situation in which lost evidence could be exculpatory differs from one in which inculpatory proof will it is in offered. A higher duty of treatment should be required in the last situation" (Giannelli 1991, ns 820).

One possible response come the trouble of experimentation that legitimately spend the sample is to offer the defendant the best to have an expert present if prosecution experimentation will consume the obtainable sample. E.g., State v Gaddis, 530 S.W.2d 64, 69 (Tenn, 1975). However, additional steps might have to be required to make this ideal meaningful. 62 When later independent experimentation is not possible and the defendant is not detailed an opportunity to have an independent skilled observe the testing, or the trial and error is performed before charges room filed, our reference that all stages the the testing procedure be completely documented becomes specifically important.63 In such cases, experts who report come the defense or directly to the court could be valuable in verifying the there space no ambiguities in the autoradiographs or that any type of ambiguities are effectively accounted for.

Whereas our referrals are command at reducing the possibility of error and detecting errors the do take place in rarely cases, defendants and also some legal commentators have competed that the hazard of laboratory or dealing with errors that would falsely incriminate a suspect should be estimated from external, remote proficiency tests, and a few courts have held that a laboratory"s record in proficiency tests need to accompany its calculation of the probability the a equivalent profile. E.g., United states v Porter, 1994 WL 742297 (DC Super. Ct., Nov. 17, 1994). We believe that proficiency-testing is a valuable an equipment for to reduce errors of all kinds, have to be enforced as a matter of social policy, and also bears on the weight that should be accorded forensic check results. In ~ the same time, for the reasons given in chapter 3, we have concluded the it is exceedingly daunting to estimate appropriate error prices from one of two people industry-wide or laboratory-specific proficiency-test results.

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A question arises regarding the admissibility that proficiency-test statistics themselves. The 1992 NRC report proclaimed that the probative value of such statistics, once balanced versus their potential to mislead a jury, favored admissibility: ""laboratory error rates have to be continually approximated in blind proficiency testing and must it is in disclosed come juries" (p 89). Inasmuch together the purpose of our report is to identify what elements of the procedures used in connection with forensic DNA experimentation are scientifically valid, we attempt no such plan judgment.