Section 10.37 Discovery Issues

• Library: Criminal Practice 2012 Supp

2. (§10.37) Discovery Issues

Frequently, DNA testing labs use the entire biologic sample to perform a DNA test. State v. Ferguson, 20 S.W.3d 485 (Mo. banc 2000). In Ferguson the defendant failed to object before the testing began. The defendant raised an initial objection after the testing was complete and the evidentiary sample consumed. Id. at 496. In Ferguson the Supreme Court of Missouri followed the United States Supreme Court’s reasoning in Arizona v. Youngblood, 488 U.S. 51 (1988), and held that “[i]n cases where the testing agency finds it necessary to consume the only sample of evidence in the testing procedure, admission of the test results does not violate due process in the absence of bad faith on the part of the state.” Ferguson, 20 S.W.3d at 496. To avoid a similar situation, a motion for a protective order can be filed in accordance with Rule 25.11. This way, the parties can have a judicial determination regarding the amount of sample available to the parties and whether the sample could be split between the parties. As an additional remedy, a party could petition the courts to allow a scientific observer who may not interfere but who may watch as the DNA testing is performed. Commonwealth v. Evans, 778 N.E.2d 885 (Mass. 2002) (defendant’s observer allowed to watch performance of DNA test).

When a new scientific test becomes available, new discovery issues inevitably arise. Computers have become an integral part of the latest STR test. Computers are used in STR testing to collect, sort, type, and label the STR test results. To analyze STR test results, the raw data is modified as it is put through a number of computer programs. Discovery of the raw data allows the opposing party to compare the raw data against the interpreted results. See:

· John M. Butler, Forensic DNA Typing: Biology and Technology Behind STR Markers (Academic Press 2001);

· State v. Butterfield, 27 P.3d 1133 (Utah 2001) (articles and descriptions of STR-DNA analysis);

· William C. Thompson, Simon Ford, Travis Doom, Michael Raymer & Dan Krane, Evaluating Forensic DNA Evidence: Essential Elements of a Competent Defense Review, The Champion (April 2003).

With computers comes the availability of raw data. Discovery of electronic data first became an issue in civil matters. See Fed. R. Civ. P. 34 (computer data is considered a “document” under the rule and failure to make raw data available is a violation of discovery); Crown Life Ins. Co. v. Craig, 995 F.2d 1376 (7^th Cir. 1993). In 2001, the Illinois Supreme Court adopted Illinois...