UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                              Before
                                    COOK 1, HAIGHT, and WEIS 2
                                     Appellate Military Judges

                               UNITED STATES, Appellant
                                             v.
                              Major ANTIWAN M. HENNING
                               United States Army, Appellee

                                     ARMY MISC 20150410

               Headquarters, Combined Arms Center & Fort Leavenworth
                       Charles L. Pritchard, Jr., Military Judge


For Appellee: Captain Jennifer K. Beerman, JA (argued); Lieutenant Colonel
Jonathan F. Potter, JA; Major Aaron R. Inkenbrandt, JA; Captain Jennifer K.
Beerman, JA (on brief).

For Appellant: Captain Jihan Walker, JA (argued); Major A.G. Courie III, JA;
Major Janae M. Lepir, JA; Captain Jihan Walker, JA (on brief).


                                         3 September 2015

                    ---------------------------------------------------------------------
                     MEMORANDUM OPINION AND ACTION ON APPEAL
                        BY THE UNITED STATES FILED PURSUANT TO
                    ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
                   ----------------------------------------------------------------------

HAIGHT, Judge:

                                          BACKGROUND

      Although the science involved in this government appeal is beyond the ken of
even relatively experienced jurists, as well as the typical layperson, the facts are
simple.

     The alleged victim, SLN, reported that appellee raped her. Major (MAJ)
Henning denied any and all sexual contact with SLN. Genetic material was

1
 Senior Judge COOK took final action in this case prior to his departure from the
court and retirement.
2
    Judge WEIS took final action in this case while on active duty.
HENNING—ARMY MISC 20150410

recovered from the underwear SLN wore the evening in question. The Kansas City
Police Crime Laboratory (KCPCL) conducted deoxyribonucleic acid (DNA) testing
on that genetic material. After testing and analysis, the KCPCL reported that MAJ
Henning could not be excluded as a potential minor contributor to the tested sample.
Furthermore, the KCPCL is of the opinion that approximately 1 in 220 unrelated
individuals in the general population would be a match to the minor contributor’s
profile. Major Henning was charged with the rape of, and other sexual crimes
against, SLN.

       The defense moved to “prohibit the government from offering any expert
testimony concerning MAJ Henning being a possible contributor of genetic material
recovered from the underwear of [SLN].” The defense asserted that the DNA
analysis conducted by the KCPCL and which the government seeks to introduce
“does not meet the requirements for expert testimony established by [Military Rule
of Evidence] 702, United States v. Houser [36 M.J. 392 (C.M.A. 1993)], and
Daubert v. Merrell Dow [Pharms., 509 U.S. 579 (1993)].” After an Article 39(a)
session, the military judge granted the defense motion and ruled that “[e]vidence
that [MAJ Henning] is a possible contributor to the genetic material recovered from
[SLN]’s underwear is excluded.” The government, pursuant to Rule for Courts-
Martial [hereinafter R.C.M.] 908 and Article 62, UCMJ, appeals the decision of the
military judge.

       After oral argument and consideration of the government appeal, we find the
military judge abused his discretion in his ruling to exclude.

                       ARTICLE 39(a), UCMJ, HEARING

        For purposes of this motion, the defense called Ms. Jessica Hanna, the
KCPCL employee who conducted the DNA testing in this case. From a sample
identified during serological screening of SLN’s underwear, Ms. Hanna extracted
DNA, amplified and analyzed that DNA, and was able to identify a “major profile”
from a female as well as a “minor profile” from a male. This minor profile or
genetic information revealed “five alleles at four different locations [loci].” Major
Henning’s DNA also has those same five alleles at those same four loci. Therefore,
he cannot be excluded as a potential contributor. 3 Then, Ms. Hanna applied a
statistical formula labeled an “alleles present statistic” in order to determine the
weight of Major Henning’s DNA match or, in other words, the frequency of those in
the general population with DNA that could possibly match the minor profile. The
calculated frequency was 1 in 220.



3
  This is particularly pertinent as, according to KCPCL, the two other males present
in SLN’s home on the night in question were both excluded after comparison to the
DNA profile.


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HENNING—ARMY MISC 20150410

       The defense also called Dr. Krane, an expert in the field. While having
significant concerns with the KCPCL’s calculated ratio of 1 in 220, Dr. Krane
acknowledged that it was “factually correct” that Major Henning’s genetic
information does match the minor profile to the extent that the profile only revealed
five alleles at four loci. In other words, Dr. Krane confirmed that Major Henning’s
DNA does, in fact, have those same identified five alleles at those four identified
specific loci. Furthermore, Dr. Krane did not dispute that the minor profile derived
from the genetic information recovered from the sample found in SLN’s underwear
accurately reflected the presence of those five alleles at those four loci. Therefore,
Dr. Krane did not question any of the scientific testing performed or the resulting
data; his critique dealt with the appropriate statistical significance that should be
attached to those results.

        Dr. Krane identified various bases for his overall concern. First, the minor
profile at issue was derived from an exceedingly small amount of DNA. Second,
similar to the first basis, five points of comparison does not provide much
information concerning the other points where Henning’s DNA might not match.
Third, the KCPCL’s “alleles present statistic” assumes allelic dropout, 4 because if
allelic dropout had not occurred, then Major Henning would effectively be excluded.
But, Dr. Krane later acknowledged twice that “the less template DNA that you start
with, the more likely locus dropout and allelic dropout there will be.” Fourth, as the
statistical analysis was applied to a “minor profile” with low peaks, as opposed to a
“major profile” with high peaks, the interpretation thereof must not only account for
allelic dropout and drop-in but also take into consideration “stutter peaks” and how
those stutters could possibly be allelic peaks of a “minor contributor.” For this
instance, Dr. Krane testified that the 1 in 220 statistic is “very weak by DNA
profiling standards . . . but that number would have been less impressive still if
those stutter peaks had been added into the calculation.” Finally, Dr. Krane is of the
opinion that in scenarios such as the present, where there is a combination of the two
factors of “unknown number of contributors” and “possible or assumed allelic
dropout,” “then all bets are off” and the safer course of action would be to report the
findings as “inconclusive.”

      Succinctly, when asked what conclusions could be drawn from the results of
the KCPCL’s DNA testing in this case, Dr. Krane stated:

             What I would prefer to say is that there are essentially
             three ways that one might look at such a circumstance. If
             an individual has two alleles and yet only one is observed
             at that locus in an evidence sample, one might conclude
             that the individual cannot be excluded because dropout


4
 Allelic dropout is the failure to detect an allele within a sample or failure to
amplify an allele during the polymerase chain reaction process.


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HENNING—ARMY MISC 20150410

             had occurred. Another is that the individual -- another
             possible conclusion is that the individual is actually
             excluded because dropout did not occur, and a third
             conclusion might be to refrain from drawing a conclusion
             and say that we can’t say if dropout or what the likelihood
             that dropout has or has not occurred is, therefore, since we
             can’t decide which of those two possibilities is most likely
             or how to capture that into some sort of statistic it’s
             simply safest to walk away and say that we don’t care to
             draw a conclusion at all.

       The government called Mr. Scott Hummel, the Chief Criminalist of the DNA
Biology Section at the KCPCL. In that capacity, he is responsible for quality
assurance at the lab. Generally, the KCPCL is accredited by the American Society
of Crime Lab Directors, Laboratory Accreditation Board and is also externally
audited to ensure its personnel, policies, and procedures are in accordance with the
Scientific Working Group on DNA Analysis Methods (SWGDAM) guidelines, the
FBI-issued quality assurance standards, as well as the international standards used
by the scientific community “not in just this country, but across the world.”
Specifically, the KCPCL is currently accredited, and all of its “statistical formulas,
equations, guidelines,” to include the “alleles present statistic,” along with particular
case files in which such equations were used were provided to and reviewed by the
accrediting body.

       Mr. Hummel defended the formula used in this case. He explained the
formula, which accounts for an unknown number of contributors and allelic dropout,
is a “modification of an unrestricted random match probability” and does not violate
SWGDAM guidelines. To the contrary, according to Mr. Hummel, this “possible
permutation or calculation” is actually contemplated by or alluded to in those
guidelines. Furthermore, Mr. Hummel testified that the KCPCL’s analysis does
consider and take into account “stutter peaks” and their possible interplay with
“minor contributor allelic peaks.”

       Dr. Krane was recalled. He was specifically asked if the KCPCL’s formulas
are “somehow not following the SWGDAM guidelines,” to which he responded, “I
think it would be best to say I’m saying something a little bit different. I’m saying
that they’re not being applied appropriately. The formulas in their operating
procedures and their interpretation guidelines are clearly consistent with and derived
from the SWGDAM guidelines.”

                        THE MILITARY JUDGE’S RULING

      Faced with a classic battle of the experts, the military judge granted the
defense motion and excluded “[e]vidence that the Accused is a possible contributor



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HENNING—ARMY MISC 20150410

to the genetic material recovered from Mrs. [SLN]’s underwear.” The military judge
found, inter alia, as fact:

      1. “The Accused’s DNA matched five alleles at four loci in the minimal
         minor profile from the underwear.”
      2. “SWGDAM is the definitive authority on reliable procedures and methods
         for forensic DNA testing and analysis.”
      3. “The SWGDAM Guidelines are mostly that: guidelines.”
      4. “The Guidelines clearly state that RMP [Random Match Probability
         statistical calculations] and CPE/I [Combined Probability of Exclusion or
         Inclusion statistical calculations] are incompatible with each other.
      5. “KCPCL used a statistical calculation in this case that does precisely what
         the Guidelines state is ‘precluded,’” that is, a combination of RMP and
         CPE/I.
      6. “The amount of human, male DNA used in the testing process in this case
         that resulted in the conclusion that the Accused was included as a potential
         contributor to the genetic material in Mrs. [SLN]’s underwear was the
         equivalent to three or four human cells.”
      7. In accordance with Dr. Krane’s testimony, “because this was an
         exceedingly small quantity,” “because of the possibility of allelic dropout
         or drop-in (e.g., through contamination),” and because this was a minimal
         minor sample, this was “the most difficult sample that could be
         interpreted.”
      8. “Ms. Hanna did not conclude, one way or another, whether allelic dropout
         had occurred in the sample.”

      After reciting the law and standards pertaining to the admission of expert
testimony and his role as gatekeeper, the military judge then concluded:

      1. “There is no real argument about the first four Houser [36 M.J. 392]
         factors in this case: they are satisfied.”
      2. “KCPCL’s testing procedures (i.e., the extraction of DNA from an
         evidentiary sample and the identification therefrom of a constellation of
         specific alleles at specific loci) are not in question; they are reliable under
         a Daubert analysis.”
      3. “However … the ‘modified’ formula KCPCL applied to draw conclusions
         about potential contributors in this case” was not shown to be reliable.
      4. The KCPCL’s “formula has never made it into (much less mentioned by)
         the SWGDAM Guidelines” and “appears wholly contradictory” to the
         guidelines as they “reject KCPCL’s approach.”
      5. The “Guidelines preclude the combination of CPE/I and RMP calculations
         in a given sample.”
      6. An apparent flaw with the KCPCL’s formula is “if you assume two
         contributors to the sample in this case, then the Accused could not have



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HENNING—ARMY MISC 20150410

         contributed all five of the alleles detected; the second person would have
         had to contribute at least one of the alleles (and possibly more). This is
         true regardless whether allelic dropout had occurred.”
      7. The formula the KCPCL used did not rely on a conclusive determination
         whether allelic dropout had occurred.
      8. “This battle of the experts would certainly be a mini-trial within the trial,
         with multiple experts being called and recalled to rebut one another on a
         highly technical issue the panel members will likely have a difficult time
         understanding.”
      9. “Using the 1 in 220 statistic, in a population as small as Weston, Missouri
         (1,641 in the 2010 census (citation omitted)), only 7 people could be
         contributors to the genetic material in Mrs. [SLN]’s underwear.”
      10. Because the “Government is sure to point out that of those seven possible
         people, only one was in Mrs. [SLN]’s house, . . . the probative value is
         substantially outweighed by the danger of unfair prejudice, misleading the
         panel members, and waste of time.”

                              LAW AND DISCUSSION

       On appeal, “[w]e review de novo the question of whether the military judge
properly performed the required gatekeeping function of [Military Rule of Evidence]
702” and “‘properly followed the Daubert framework.’” United States v. Flesher,
73 M.J. 303, 311 (C.A.A.F. 2014) (citing United States v. Griffin, 50 M.J. 278, 284
(C.A.A.F. 1999)). However, the decision by the military judge to exclude expert
testimony is reviewed for an abuse of discretion. United States v. Sanchez, 65 M.J.
145, 148 (C.A.A.F. 2007). “A military judge abuses his discretion when: (1) the
findings of fact upon which he predicates his ruling are not supported by the
evidence of record; (2) if incorrect legal principles were used; or (3) if his
application of the correct legal principles to the facts is clearly unreasonable.”
United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010). Additionally, “[a]n abuse
of discretion exists where reasons or rulings of the military judge are clearly
untenable and . . . deprive a party of a substantial right such as to amount to a denial
of justice.” United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987) (internal
quotation marks and citations omitted); see also Flesher, 73 M.J. at 311. Also,
because this case came to this court by way of a government appeal under Article 62,
UCMJ, we are limited to reviewing the military judge’s decision only with respect to
matters of law and are bound by the military judge’s findings of fact unless they
were clearly erroneous. We cannot find our own facts or substitute our own
interpretation of the facts. United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F.
2007) (citing United States v. Mizgala, 61 M.J. 122, 127 (C.A.A.F. 2005)).

      We determine the military judge made two clearly erroneous findings of fact
as well as multiple erroneous conclusions when applying the law and acting in his
gatekeeper role.



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HENNING—ARMY MISC 20150410

                          Military Judge’s Findings of Fact

       The military judge found, as fact, that the “alleles present statistic” formula
utilized by the KCPCL is expressly precluded by the SWGDAM guidelines. This
finding is in error. First, as everybody agreed, to include the military judge, the
male minor DNA profile was derived from an exceedingly small sample. Page 1 of
the SWGDAM guidelines reads, “Some aspects of these guidelines may be
applicable to low level DNA samples.” This prolonged caveat continues, “Due to
the multiplicity of forensic sample types and the potential complexity of DNA
typing results, it is impractical and infeasible to cover every aspect of DNA
interpretation by a preset rule.” In fact, laboratories are encouraged to use their
professional judgment, expertise, and experience to review their standard operating
procedures, update their procedures as needed, and utilize written procedures for
interpretation of analytical results.

       That is precisely what the KCPCL has done. Based upon its collective
expertise and judgment and in accordance with SWGDAM guidelines, it has
incorporated in its DNA Analytical Procedure Manual an “alleles present statistic.”
This formula “accounts for allelic drop-out and makes no assumption regarding the
number of contributors.” 5

        The aforementioned formula has been used by the KCPCL for 15 years, and
the KCPCL, along with its manuals, procedures, and written methods of statistical
calculations, has been audited and inspected “about ten different times” to ensure it
is not running afoul of the SWGDAM guidelines or the FBI’s Quality Assurance
Standards for Forensic DNA Testing Laboratories. Finally, paragraph 4.1 of the
SWGDAM guidelines mandates, “The laboratory must perform statistical analysis in
support of any inclusion that is determined to be relevant in the context of a case,
irrespective of the number of alleles detected and the quantitative value of the
statistical analysis.” The KCPCL did not mix preset and firm RMP and CPE/I
formulae. It modified an RMP calculation in accordance with their assumptions, as
is its scientific prerogative. Other scientists may feel it “safer” to do otherwise, but
that does not mean the formula is expressly forbidden by the applicable guidelines.

      The military judge also found, “Ms. Hanna did not conclude, one way or
another, whether allelic dropout had occurred in the sample.” This finding and its
corresponding conclusion are clearly erroneous and unsupported by the record.
When statistically analyzing the minor profile, the KCPCL assumed allelic dropout
and then necessarily concluded that this dropout occurred when reporting the
frequency ratio. Both of the witnesses from the KCPCL testified clearly and
repeatedly that the “alleles present statistic” accounts for allelic dropout and is


5
 The “alleles present statistic” is the calculation of the alleles present at each
genetic location accounting for possible drop-out of the sister allele in a genotype.


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HENNING—ARMY MISC 20150410

utilized in those scenarios where allelic dropout is assumed. In fact, one of Dr.
Krane’s main criticisms of the KCPCL’s analysis in this case is that it was premised
upon the assumption and conclusion that allelic dropout had, in fact, occurred. Dr.
Krane explained that “[Ms. Hanna]’s statistic is predicated on the fact that dropout
did occur. Her inclusion of Major Henning as a possible contributor is predicated on
the idea that dropout must have occurred. . . . If dropout had not occurred . . . then
Major Henning is actually excluded as a possible contributor.”

                         Military Judge’s Conclusions of Law

       The military judge concluded the government had not shown the statistical
evaluation applied by the KCPCL in this case to be “reliable.” In determining that
the military judge abused his discretion in so concluding, we do not do so lightly.
We may not apply a review more “stringent” than abuse of discretion to a trial
court’s decision to receive or exclude evidence and similarly may not reverse unless
the trial ruling was “manifestly erroneous.” GE v. Joiner, 522 U.S. 136, 142-43
(1997). Likewise, we acknowledge a “court of appeals applying ‘abuse of
discretion’ review to such rulings may not categorically distinguish between rulings
allowing expert testimony and rulings which disallow it,” nor was the military judge
required “to admit opinion evidence which is connected to existing data only by the
ipse dixit of the expert.” Id. at 142, 146. That said, we find the military judge’s
exclusion of any and all evidence that MAJ Henning is a possible contributor to the
genetic material recovered from SLN’s underwear was manifestly erroneous.

      In this case, both parties present experts who agree on the underlying science
of DNA extraction, matching, and comparison and also agree on the underlying data
that was generated, that is, five alleles present at four loci. They disagree, however,
on what is to be concluded from that data. Daubert is clear:

             The inquiry envisioned by [Federal Rule of Evidence] 702
             is, we emphasize, a flexible one. Its overarching subject
             is the scientific validity -- and thus the evidentiary
             relevance and reliability -- of the principles that underlie a
             proposed submission. The focus, of course, must be solely
             on principles and methodology, not on the conclusions
             that they generate.

Daubert, 509 U.S. at 594-95. The proffered frequency ratio of 1 in 220 is not
connected to the presence of those specific five alleles at those specific four loci by
the ipse dixit of Ms. Hanna; rather, it is connected by a long-used, reproducible,
announced, audited, and written formula.

       In excluding evidence of the statistical significance of the matching minor
profile, the military judge expressly adopted Dr. Krane’s conclusion that this would



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HENNING—ARMY MISC 20150410

be attaching weight to an “exceedingly small quantity” and is “the most difficult
sample that could be interpreted.” Dr. Krane did not testify that no conclusions
could be drawn from the minor profile; he testified it would be “safer” to not draw
any conclusions from such a profile. Our superior court has addressed a scenario
where experts in the field differ in their interpretation of the underlying facts and
how much weight, if any, should be given to those facts in deriving an opinion. See
Sanchez, 65 M.J. at 151. In that case, it is made clear that any requirement that
experts agree on a certain interpretation “would be at odds with the liberal
admissibility standards of the federal [and military] rules and the express teachings
of Daubert.” Id. at 152 (quoting Amorgianos v. Amtrak, 303 F.3d 256, 267 (2d. Cir.
2002)). Furthermore,

             A review of the caselaw after Daubert shows that the
             rejection of expert testimony is the exception rather than
             the rule . . . . The trial court’s role as gatekeeper is not
             intended to serve as a replacement for the adversary
             system. As the Court in Daubert stated: “Vigorous cross-
             examination, presentation of contrary evidence, and
             careful instruction on the burden of proof are the
             traditional and appropriate means of attacking shaky but
             admissible evidence.”

United States v. Billings, 61 M.J. 163, 169 (C.A.A.F. 2005) (citation omitted). At
worst, the KCPCL’s approach was shaky science; it was definitely not junk science
and should not be excluded. See Sanchez, 65 M.J. at 153 (citing Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999)).

        A trial judge certainly can and should form an opinion as to the reliability of
differing scientific approaches when performing his role as gatekeeper. However,
here, the military judge overstepped his bounds and conducted his own scientific
analysis and statistical evaluation. In the “Conclusions” portion of his ruling, the
military judge points out his perceived flaws in the KCPCL’s formula and then
proceeds to discuss the possibilities of heterozygous or homozygous alleles at
various loci and how those eventualities would potentially impact the appropriate
statistical approach. The problem lies in his statement, “First, if you assume two
contributors to the sample in this case, then the Accused could not have contributed
all five of the alleles detected; the second person would have had to contribute at
least one of the alleles (and possibly more). This is true regardless whether allelic
dropout had occurred.” Not only do we question the scientific and mathematical
validity of the above statement, it is wholly unsupported in the record. None of the
experts testified consistent with the military judge’s base premise. Accordingly, we
are left with the distinct impression that in this battle of the experts, the military
judge became his own expert, conducted his own analysis of the evidentiary DNA
data and application of the SWGDAM guidelines in a manner not addressed by any



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HENNING—ARMY MISC 20150410

of the experts, and consequently impermissibly assumed a role far different than that
of gatekeeper.

       In the same portion of his ruling, the military judge criticized the government
for providing “no evidence of error rates with regard to KCPCL’s formula or what
the statistical cutoff is for inclusion as a possible contributor (e.g., is 1 in 100,000 a
permissible statistic to be included?).” Regardless of the obvious observations that a
pure numerical cutoff line would, by definition, go to the weight of a factual finding
as opposed to its validity or admissibility and that a statistical cutoff is a distinct
concept from an error rate, we again look to Sanchez. “Nothing in the precedents of
the Supreme Court or this Court requires that a military judge either exclude or
admit expert testimony because it is based in part on an interpretation of facts for
which there is no known error rate or where experts in the field differ in whether to
give, and if so how much, weight to a particular fact.” Sanchez, 65 M.J. at 151.

      We now turn to the military judge’s Military Rule of Evidence 403 balancing
in which he found the probative value of the KCPCL’s “statistical conclusion” is
“substantially outweighed by the danger of unfair prejudice, misleading the panel
members, and waste of time.” We find three parts of his balancing to be manifestly
erroneous.

       First, the military judge found the probative value of the statistical
conclusion, the 1 in 220 ratio, to be minimal. There is a disconnect between the
concerns the military judge harbored with respect to the reliability of the KCPCL’s
formula and his blanket exclusion of evidence that MAJ Henning is a possible
contributor to the discovered genetic material. In accordance with the options found
in the SWGDAM guidelines and in line with Dr. Krane’s suggestion, the most
favorable conclusion the defense could have hoped for was that comparison of MAJ
Henning’s DNA to the minor profile was either inconclusive or uninterpretable.
But, even in that event, because per SWGDAM, “statistical analysis is not required
for exclusionary conclusions,” that would still potentially leave evidence that the
other males in the house that night in question are excluded as contributors to the
male minor profile found in SLN’s underwear. In other words, in this case, the
importance of the numerical ratio may be relatively minimal. But, in light of the
categorical exclusion of other potential suspects, any evidence that MAJ Henning is
a possible contributor, even to a small degree, would still be highly probative.

       Second, the military judge concludes this “battle of the experts would
certainly be a mini-trial within the trial, with multiple experts called and recalled to
rebut one another on a highly technical issue the panel members will likely have a
difficult time understanding.” We echo the Supreme Court in that this view “seems
to us to be overly pessimistic about the capabilities of the jury and of the adversary
system generally. Vigorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional and appropriate



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HENNING—ARMY MISC 20150410

means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. The
questions of whether SLN was assaulted and by whom do not constitute the subjects
of any “mini-trial;” rather, they are the very essence of the trial.

       Third, inconsistent with his prior conclusion that the probative value of the
KCPCL’s “resulting statistical conclusion” is minimal, the military judge then
applied the 1 in 220 ratio against the population of the city where the alleged crime
occurred and concluded that his calculation that only seven people in that city could
be contributors is a significant and unfairly prejudicial statistic. The military judge
observed, “The Government is sure to point out that of those seven possible people,
only one was in Mrs. [SLN]’s house.” In this case, we find that evidence that an
accused’s DNA possibly matches that of genetic material found at the scene of the
alleged crime to indeed be prejudicial, but not even remotely unfairly so. Once a
proper foundation is laid, not only is DNA testing sufficiently reliable and
admissible, but evidence of statistical probabilities of an alleged match is admissible
as well. See United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006).

                                   CONCLUSION

       “The military judge’s role as evidentiary gatekeeper does not require him to
admit only evidence that he personally finds correct and persuasive and to exclude
that which he finds incorrect or unpersuasive. Rather, the judge’s role is to screen
all evidence for minimum standards of admissibility and to let the factfinder
determine which evidence is more persuasive.” United States v. Kaspers, 47 M.J.
176, 178 (C.A.A.F. 1997). We possess, as a reviewing court, “a definite and firm
conviction that the [military judge] committed a clear error of judgment in the
conclusion [he] reached upon a weighing of the relevant factors” and thus find an
abuse of discretion. See Houser, 36 M.J. at 397 (quoting Magruder, J, The New York
Law Journal at 4, col. 2 (March 1, 1962), quoted in Quote It II: A Dictionary of
Memorable Legal Quotations 2 (1988)).

       The appeal of the United States pursuant to Article 62, UCMJ, is granted.
The ruling of the military judge to exclude evidence that MAJ Henning is a possible
contributor to the genetic material recovered from SLN’s underwear on the bases
that the KCPCL’s formula and its application in this case are unreliable and unfairly
prejudicial is set aside. The record will be returned to the military judge for action
not inconsistent with this opinion

      Senior Judge COOK and Judge WEIS concur.




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HENNING—ARMY MISC 20150410

                         FOR THE
                           FOR   COURT:
                               THE COURT:




                         MALCOLM H. SQUIRES, JR.
                           MALCOLM H. SQUIRES, JR.
                         Clerk of Court
                           Clerk of Court




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