Hennis-DNA issues

I came across this item reading some history on the current court-martial.  DNA has gained a prominent place in the prosecution and defense of criminal cases.  But this piece illustrates that the DNA may only be as good as the testing done and the people doing the testing.

The Army began its prosecution in 2006 after a cold case detective with the Cumberland County Sheriff’s Office ordered DNA tests on the rape kit of Eastburn and on a blood sample from Hennis. That testing, conducted by the N.C. State Bureau of Investigation, matched Hennis’ DNA to sperm found in the rape kit, according to court documents.

The military has done further testing, lawyers said Monday.

One of the tests found Eastburn’s DNA but none from anyone else, said Lt. Col. Kris Poppe, who is one of Hennis’ defense lawyers.

Capt. Matt Scott, one of the case’s four prosecutors, argued that the technician who tested the DNA said Eastburn’s DNA could have washed out any male DNA in the sample. The technician suggested another DNA test, one designed to look only for male DNA, Scott said.

The male DNA test was done. It did not clear Hennis as the source of the sperm, but Poppe said the result is not precise.

The defense lawyers have done their own DNA testing and have not shared the results with prosecutors.

Scott told the judge, Col. Patrick Parrish, that the defense team will try to use the Army’s DNA results to mislead the jury, and he asked Parrish to require that defense lawyers share their DNA test results.

R.C.M. 701(b) covers reciprocal discovery by the prosecution.  Here is the relevant part of the rule, R.C.M. 701(b)(4).

. . . possession, custody, or control of the defense that the defense intends to introduce as evidence in the defense case-in-chief at trial or that were prepared by a witness whom the defense intends to call at trial when the results or reports relate to that witness’ testimony (emphasis added).

So, IMHO until the defense puts a DNA examiner on the witness list there appears to be no need to provide any of their own DNA test results.  Further, the defense is not required to disclose the DNA results unless they intend offering the information in their own case.  (And by the way, contrary to some new arguments that are coming up in some Article 32, UCMJ, hearings that I have done, there is no reciprocal discovery at an Article 32, UCMJ, hearing.  See R.C.M. 405.  As I frequently say, R.C.M. 405 is a stand-alone “manual” of rules of procedure and evidence at an Article 32, UCMJ, hearing.  Except for certain of the rules of on privileges, you can rip out that part of the M.C.M. and you don’t need anything else from the manual.  Reciprocal discovery does not apply until after charges are referred and if the defense submits a discovery request.)

The DNA evidence may face another challenge.

The judge and lawyers briefly discussed a story which appeared in The Fayetteville Observer on Monday about a pending review of thousands of old cases by the State Bureau of Investigation. . . .

The state attorney general ordered the review after North Carolina’s Innocence Inquiry Commission last week exonerated a man in part because of a problem with the SBI lab. In the early 1990s, the lab did not tell anyone that preliminary blood test results used to convict the man were found to be wrong in follow-up testing. . .

A longer version of that news article, published Sunday in The News & Observer newspaper in Raleigh, said a forensic scientist who does consulting for defense lawyers believes the SBI lab is troubled. "They seem to be bending the science often," she told the N&O, and she said she found an incident in which the lab mixed up the DNA of a suspect and the victim.

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