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14 ABA Juv. & Child Welfare L. Rep. 1 (1995-1996)

handle is hein.journals/chilawpt14 and id is 1 raw text is: ABA J U VENILF & CHILD WELFARE (Reporter VOLUME 14, NO. 1 March 1995 ABUS AN NELC DNA Evidence State v. Carter, 524 N. W.2d 763 (Neb. 1994). DNA evidence was inadmissible since it was accompanied by statistical prob- ability evidence that was not generally accepted by the scientific community. A man was charged with murdering a nine-year-old girl by sexually assaulting her. DNA tests were conducted using a tech- nique referred to as polymerase chain reac- tion (PCR) DNA typing, which involves comparison of a suspect's DNA with a DNA sample recovered from the crime scene. If a match is not found, then the sus- pect is excluded as a possible source. In this case, a match was found between defen- dant's genotype and a sperm sample taken from the victim. Therefore, defendant was not excluded as a possible source of the sperm, Evidence of the statistical prob- ability of the match was also presented showing that 7% of the white population and 10% of the black population had the same genotype as the defendant. Defendant was convicted. He appealed, contending the DNA evidence was inadmissi- ble because the PCR DNA typing technique and the methodology used to reach the statisti- cal probability of the match lacked an ade- quate foundation of reliability and did not conform to the Frye test for admissibility. The Supreme Court of Nebraska reversed. The court first found the Frye test was the ap- propriate legal standard for novel scientific evi- dence. The court rejected the state's assertion that the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993) was controlling. Daubert held Federal Rule of Evidence 702, which ad- mits scientific evidence if it will assist the trier of fact and if the witness is properly quali- fied as an expert, superseded the Frye test in federal trials and in states that have adopted the Federal Rules of Evidence. Although Ne- braska has adopted the Federal Rules of Evi- dence, the court noted that the Frye test had subsequently been reaffirmed as the appropri- ate legal standard. Similarly, in this case the court reaffirmed Frye: [We recognize the complex nature of DNA evidence and the need to protect against unproven and poten- tially erroneous and misleading evidence, and we decline to adopt the less demanding Daubert standard and reaffirm Frye as the standard for determining the admissibility of DNA evidence. Applying the Frye test to the DNA test- ing and statistical probability evidence, the court found the PCR DNA typing technique used to arrive at the DNA match was accept- able under Frye; however, it found the method used to calculate the statistical prob- ability of the match was under consider- able attack by the scientific community and therefore was unreliable. Specifically, the method of calculating population fre- quencies was limited to only two racial groups and failed to account for sub- groupings. The court noted the necessity of providing statistical probability evidence with evidence of a DNA match. It declined to admit the DNA evidence since it was not accompanied by statistical probability evi- dence that was generally accepted by the sci- entific community. Hearsay, Fresh Complaint People v. Brown, 883 P.2d 949 (Cal. 1994). A child's hearsay statements regarding her alleged molestation were relevant to the jury's determination of whether the molestation actually occurred, regard- less of whether the statements qualified as fresh complaint evidence. A 12-year-old girl, in response to question- ing by an adult friend, disclosed she had been molested by her mother's live-in boyfriend over a period of several years. The disclosure was made approximately two months after the last incident of molestation occurred. At trial, the girl testified regarding the con- text and circumstances surrounding her disclo- sure to her adult friend. She stated the reason she did not disclose the abuse for several years was because she was frightened, and the de- fendant told her never to tell anyone because people would think poorly of her. She also testified the adult friend was the first adult she told about the molestation, Defense counsel objected to this testimony, arguing it was inad- missible as fresh complaint testimony since the disclosure was not made immediately after the last incident of molestation. The trial court overruled the objection. The adult friend also testified regarding the circumstances and context of the girl's disclo- sure. She described the girl as reluctant to pro- vide information, crying, and withdrawn. She indicated that over the course of three hours, with some prompting, the girl disclosed her molestation by defendant. Defendant was convicted. He appealed, arguing the girl's out-of-court statements did not qualify as fresh complaints. The ap- pellate court affirmed, holding the com- plaints were 'fresh,' because the victim's delay in disclosing the incidents of molesta- tion was reasonable under the circumstances of the case, and her statements maintained the characteristics of a complaint even though their disclosure initially was elicited by questioning from an adult. The Supreme Court of California, upon re- view of the fresh complaint doctrine, affirmed. Historically, the fresh complaint doctrine has been used to admit evidence that a victim of sexual assault promptly complained, without providing details about the assault. The ration- ale underlying the doctrine was that without evidence of a victim's prompt complaint, the jury may inaccurately conclude the victim was silent and, in effect, doubt the truthfulness of testimony regarding the assault. The court, however, observed the historic premise of the fresh complaint doctrine'-- that it is natural for the victim of a sexual as- sault to complain promptly following the as- sault - has been discredited. Current studies have shown that it is not inherently 'natural' for the victim to confide in someone or to dis- close, immediately following commission of the offense, that he or she was sexually as- saulted. The court noted this is especially true for child victims, who often are unaware of the wrongful nature of the conduct or that what has occurred is not 'normal.' Although the court found the historic prem- ise and rationale for the fresh complaint doc- trine should be set aside, it noted it does not necessarily follow from this recognition that Also in this issue: Legal Analysis ....... 12 Parental Kidnapping (Part III) American Bar Association

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