                               SUPERIOR COURT
                                       of the
                             STATE OF DELAWARE


Jeffrey J Clark                                                  Kent County Courthouse
Judge                                                                 38 The Green
                                                                     Dover, DE 19901
                                                                Telephone (302)739-5333

                                    May 11, 2016


Jason Cohee, DAG                                      Julianne E. Murray, Esq.
Zachary George, DAG                                   Ronald D. Phillips, Jr., Esq.
Department of Justice                                 Murray Phillips, P. A.
102 West Water Street, Second Floor                   109 North Bedford Street
Dover, DE 19901                                       Georgetown, DE 19947

       Re:    State v. Rakiim A. Strickland
              Case#1505010488
Counsel:
       Defendant Rakiim Strickland ("Defendant") moves to exclude DNA Evidence
based on relevance and that its probative value, if any, is substantially outweighed by
the danger of unfair prejudice. Expert testimony must be helpful to the trier of fact and
must be reliable. After a Daubert hearing, the Defendant clarified that he does not
challenge the reliability of the evidence. Rather, Defendant challenges its helpfulness
to the jury, its relevance, and its propensity to unfairly prejudice the Defendant.
       At issue are the two proffered opinions of the State’s DNA expert, Sarah
Lindauer. Namely, she opines that (1) the Defendant’s DNA could be a match to the
DNA evidence found on a weapon involved in the case, but since he is an African
American, there is a one in two chance that has been wrongfully included as a potential
contributor to the DNA recovered from the gun; and (2) three or more persons handled
the weapon, and at least one of them was a male.
       After a hearing, argument, and considering the written submissions, the Court
holds that the opinion that the Defendant is included as a possible contributor is barred
from admission at trial in the State’s case-in-chief. However, DNA evidence that at
least three individuals touched the gun, and at least one of them was a male is
admissible at trial. Accordingly, Defendant’s motion to exclude opinion evidence
involving the DNA analysis is GRANTED in part, and DENIED in part.
       Defendant is charged with Attempted Murder in the First Degree, Possession of
a Firearm During the Commission of a Felony, Possession of a Firearm by Person
Prohibited, Possession of Firearm Ammunition by Person Prohibited, Criminal Mischief
and Criminal Trespass in the First Degree. The evidentiary dispute centers on a DNA
swab from a shotgun involved in the incident.                The Defendant proffers that
identification of the shooter will be a central issue at trial.
       The State forwarded a copy of its DNA Analysis Report to Defendant on or
about September 18, 2015. According to the testimony at a DRE 104 hearing, the
DNA laboratory report involved a mixed sample of DNA obtained from the swab of
a shotgun. At the motion hearing, the State’s expert who created the report, Sarah
Lindauer, testified that Defendant, who is an African American male, could be
included as a contributor to the sample. However, this potential inclusion had a one in
two chance of being incorrect.1 Testimony at the hearing also tracked the laboratory
report’s second conclusion that the DNA profile recovered from the shotgun includes
the DNA of at least three individuals, and that at least one of the contributors is male.
       In Delaware, DNA evidence must “satisfy the pertinent Delaware Rules of


       1
         The report quantifies the likelihood of erroneous inclusion based on four population
groups. The relevant population group to this case is the African American population. For the
relevant population group, there is a one in two chance of wrongful inclusion.

                                               2
Evidence concerning the admission of scientific testimony or evidence.”2 Delaware
follows the Daubert3 five factor standard in analyzing the admissibility of such
scientific evidence.4 In the context of DNA evidence, the five factors to be considered
are “1) that the expert witness was qualified [D.R.E. 702]; 2) that the evidence offered
was otherwise admissible, relevant and reliable [D.R.E. 401 & 402]; 3) that the bases
for the opinion are those reasonably relied upon by experts in the field [D.R.E. 703];
4) that the specialized knowledge being offered will assist the trier of fact to understand
the evidence or determine a fact in issue [D.R.E. 702]; and 5) whether such evidence
would create unfair prejudice, confuse the issues or mislead the jury [D.R.E. 403].”5
Furthermore, “for DNA evidence to be admissible, both the procedures used to obtain
a match and the statistical evidence interpreting the significance of a match must satisfy
the Delaware standard applicable to the admissibility of scientific evidence.”6
       Here, the Defendant raised no issues regarding the qualifications of the expert
or the reliability of her testing. Accordingly, the issues addressed by the Court are
limited to considerations of whether the evidence would be helpful to the jury, relevant,
and admissible after a DRE 403 analysis.
       In support of its argument, the State cites the Delaware Supreme Court decision
in State v. Taylor7 where the Court upheld the Superior Court’s decision to admit


       2
           Nelson v. State, 628 A.2d 69, 74 (Del. 1993).
       3
           Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
       4
           Nelson, 628 A.2d at 74.
       5
           Id.
       6
           Id. at 76.
       7
           State v. Taylor, 76 A.3d 791 (Del. 2013).

                                                  3
DNA evidence.8 There, a DNA sample was recovered from a weapon at issue in the
case.9        The results of testing of that evidence provided that the defendant’s DNA
profile “could not be excluded.”10 As in the case at hand, in Taylor, less than a full
DNA profile was available and because of the limited sample it was possible that
defendant never touched the weapon, with the caveat that he could not be excluded as
a contributor.11 Furthermore, in Taylor, a statistical number establishing a statistical
significance “could not be provided and that theoretically the entire American male
population could be a DNA contributor.”12 In the underlying evidentiary context of that
case, the Delaware Supreme Court held that the trial court did not abuse its discretion
in admitting the DNA test results for two reasons.13 First, the testing established that
four different people handled the gun.14 That information made more likely the
conclusion that the defendant, a member of a gang, shared the weapon and that the
gang consisted of three or more people.15 Second, the Court held that “the fact that
[defendant] could not be excluded had some probative value because other suspects
were excluded, and [defendant] was not.”16 Therefore, the DNA evidence was


         8
             Id. at 802.
         9
              Id.
         10
              Id.
         11
              Id. at 802-03.
         12
              Id. at 803.
         13
              Id.
         14
              Id.
         15
              Id.
         16
              Id.

                                             4
appropriately admitted into evidence, despite the weak statistical evidence associated
with the DNA results.17
       In the case at hand, the State does not proffer evidence making the expert’s first
opinion relevant.        Relevant evidence is evidence that tends to make a fact of
consequence more or less likely. Even this low threshold for admissibility is not met
in the context of an opinion that Defendant is a possible DNA contributor to the
mixture with a qualification that such an opinion has a one in two chance (50%) of
being incorrect. Nor would such evidence be helpful to the trier of fact. Furthermore,
even assuming arguendo that there is some relevance to such an opinion, any such
marginal relevance is substantially outweighed by the risk of confusing the jury or
unfairly prejudicing the Defendant. There is a real danger that a jury could misconstrue
the statistical significance of such evidence and be confused by it.
       The present case can be distinguished from others with low statistical
significance evidence that could still eliminate or include large parts of the general
population.       For instance, in State v. Roth,18 the Superior Court evaluated the
admissibility of DNA evidence of an approximately 50% probability that a defendant
contributed to a DNA sample.19 In that case, the Superior Court found that the Daubert
factors were satisfied with the exception of the fifth factor, the unfair prejudice prong.20
The DNA report indicated that 50.2% of the population would be excluded as possible
donors to the sample but that Defendant was not. By a narrow margin, this statistic


       17
            Id.
       18
            State v. Roth, 2000 WL 970673 (Del. Super. May 12, 2000).
       19
            Id. at *2.
       20
            Id.

                                                5
makes more probable than not that Defendant could not be excluded as a contributor.
Because the expert and report gave only a 50.2% probability that the defendant was the
donor, the Court found the probative value very limited.21 In that context, there
arguably was some marginal relevance, because it eliminated a large pool of possible
contributors but did not eliminate the Defendant.
      The case at hand differs because the offered opinion in this case provides that
Defendant Strickland could be a contributor, but that possibility has a fifty percent
chance of being wrong. In other words as opposed to low statistical significance, this
evidence has no statistical significance. Nevertheless, even given the greater relevance
of the expert’s opinion in Roth, that Court found that the risk of prejudice to the
defendant was significant because the jury would likely be confused or mislead by
testimony that he was “included” in the population that could have contributed to the
DNA sample.22 Therefore, under the DRE 403 balancing test, the Court in Roth held
the evidence inadmissible.23 The evidence in the case at hand would likewise be
inadmissible after a DRE 403 balancing.
      Furthermore, the Federal District Court for the Eastern District of Pennsylvania
examined the issue of DNA evidence of low statistical significance in U.S v. Graves.24
There, the Court held that DNA evidence of a low statistical significance may be
probative to show that a defendant cannot be excluded as a contributor to the DNA




      21
           Id.
      22
           Id. at *3.
      23
           Id.
      24
           U.S. v. Graves, 465 F.Supp.2d 450 (E.D.PA. 2006).

                                               6
sample and properly admitted pursuant to DRE 403.25 In such cases, the Court noted
that "[w]here the [trial] court provides careful oversight, the potential prejudice of the
DNA evidence can be reduced to the point where this probative value outweighs it."26
However, the Graves court held that "even with appropriate safeguards, the minimal
probative value of the DNA evidence - in which half of the relevant population cannot
be excluded as a contributor to the DNA sample - is substantially outweighed by the
danger of unfair prejudice and confusion of the issues."27 Accordingly, that Court also
excluded the DNA evidence for failing a 403 analysis with a ratio of 1:2 from the
African American Population.28
      At issue here are Daubert factors two and five. These include the relevance of
the proffered evidence as well as the weight of the probative value, if any, in relation
to the danger of unfair prejudice to Defendant. This Court, as opposed to the courts
in Roth and Graves finds that a one in two chance of misidentifying the Defendant as
a possible contributor makes the proferred opinion not relevant. As in Roth and
Graves, however, the Court agrees that if such an opinion had any relevance, its very
limited probative value would be substantially outweighed by the danger of unfair
prejudice to the Defendant.
      The opinion that at least three persons contributed DNA to the shotgun swab,
and at least one of them was a male has some relevance. Although such relevance is
not particularly high, such an opinion can be structured and presented in such a way


      25
           Id. at 458.
      26
           Id. (Citing U.S. v. Chischilly, 30 F.3d 1144, 1158 (9th Cir. 1994)).
      27
           Id. at 459.
      28
           Id. at 458-59.

                                                  7
(and clarified through cross-examination) that it would be unlikely to confuse the jury
or unfairly prejudice the Defendant. The nature of such an opinion based on reliable
scientific findings will be easily understood by the jury. Unlike the inadmissable
opinion, there is not the danger that the jury would misunderstand its context. The
State may therefore present that opinion. The State will also not be precluded from
presenting evidence in its case-in-chief about the limited nature of the sample and that
it was not sufficient to enable other relevant findings.
      For the reasons stated above, the expert’s opinion testimony at trial shall not
include the probability of Defendant's DNA consistency to the DNA analysis on the
shotgun swab. If the State feels that a door has somehow been opened by the
Defendant requiring the admission of such testimony, it should first raise the issue
outside the presence of the jury. In addition to offering the admissible opinion
discussed above, the State may offer evidence regarding the underlying science of the
DNA tests performed and limitations in the sample and testing process which did not
permit other admissible conclusions.
      IT IS SO ORDERED


                                                /s/Jeffrey J Clark
                                                    Judge

oc:   Prothonotary
      File




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