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A FRYE HEARING SHOULD HAVE BEEN HELD TO DETERMINE THE ADMISSIBILITY OF THE LOW COPY NUMBER (LCN) DNA EVIDENCE AND THE EFFICACY OF A FORENSIC STATISTICAL TOOL (FST); THE ERROR WAS HARMLESS HOWEVER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge concurrence, ruled a Frye hearing should have been held to the determine admissibility of low copy number (LCN) DNA evidence and the efficacy of the forensic statistical tool (FST) used to conduct the statistical analysis. The abuse of discretion was deemed harmless however:

At the time this motion practice was initiated no court had completed a Frye hearing with respect to the FST, and only one court—namely, the Megnath (27 Misc 3d 405) court …—had conducted such a hearing with respect to LCN testing.  * * *

… [T]here was “marked conflict” with respect to the reliability of LCN DNA within the relevant scientific community at the time the LCN issue was litigated in this case … . * * *

… FST is a proprietary program exclusively developed and controlled by [the New York City Office of Chief Medical Examiner (OCME)]. The sole developer and the sole user are the same. That is not “an appropriate substitute for the thoughtful exchange of ideas . . . envisioned by Frye” … . It is an invitation to bias. People v Williams, 2020 NY Slip Op 02123, CtApp 3-31-20

Similar issues and result in People v Foster-Bey, 2020 NY Slip Op 02124, CtApp 3-31-20

 

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