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

handle is hein.journals/chilawpt14 and id is 1 raw text is: ABA
VOLUME 14, NO. 1                   March 1995

ABUS       AN     NELC
DNA Evidence
State v. Carter, 524 N. W.2d 763 (Neb.
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fied as an expert, superseded the Frye test in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.
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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