Speaker 1: What's up everyone, and welcome back to the program. In
Speaker 1: this episode, we're gonna spin right back up to Moscow,
Speaker 1: and we're gonna keep on keeping on. And this time
Speaker 1: I have the motion in le mean number six, which
Speaker 1: is ry Lean Nowlen and reference to touch and contact DNA.
Speaker 1: Case number CR zero one DASH twenty four DASH thirty
Speaker 1: one six sixty five, State of Idaho, Plaintiff versus Brian C. Coberger.
Speaker 1: The defendant comes now Brian C. Coberger, buying through his
Speaker 1: attorneys of record and pursuant to the Idaho Rules of Evidence,
Speaker 1: moves this Honorable Court for an order in le mean
Speaker 1: excluding the testimony of ry Lean Nowln and any testimony
Speaker 1: one referencing the terms touch or contact DNA or two
Speaker 1: purporting to be an opinion of the means or a
Speaker 1: mechanism for DNA being placed on the sheath by any
Speaker 1: witness called to testify about DNA. Both the term touch
Speaker 1: or contact DNA or any opinion regarding how DNA ends
Speaker 1: up on an ey item is misleading in that it
Speaker 1: assumes facts that must be proven would be confusing to
Speaker 1: the jury and waste substantial time in the bunking. The
Speaker 1: testimony of an expert that's outside the purview of the
Speaker 1: field of expertise and qualifications. Furthermore, the opinions of this
Speaker 1: expert have not been disclosed to mister Colberger. As set
Speaker 1: fourth below, the how, when, and why of DNA arrives
Speaker 1: on an object cannot scientifically be determined and is not
Speaker 1: the proper subject of expert testimony. The use of the
Speaker 1: language confuses and misleads the finder of fact and is
Speaker 1: barred by the rules four two four oh three, as
Speaker 1: well as due process in that the evidence is overly prejudicial.
Speaker 1: The erroneous admission of irrelevant and prejudicial evidence will offend
Speaker 1: due process when it renders a trial fundamentally unfair. A
Speaker 1: stell Vers Maguire five oh two US sixty two seventy
Speaker 1: Relevant Facts. A knife sheath was recovered tucked under the
Speaker 1: covers next to Miss Mogan at a seven twenty two
Speaker 1: King Road, Moscow, Idaho, on November thirteenth, twenty twenty two.
Speaker 1: The sheath was tested using standard DNA str methods by
Speaker 1: the Idaho State Police Item Q one DOT one. A
Speaker 1: swab from the sheath resulted in a single source MAL profile.
Speaker 1: This profile was uploaded to the code is DNA database
Speaker 1: and resulted in no hits to known offenders. In its disclosures,
Speaker 1: the government has indicated that Rylean Nowlyn from the ISP
Speaker 1: Lab will testify as follows. Miss now Lyn will also
Speaker 1: testify to touch DNA and transfer DNA. Specifically, now Lynn
Speaker 1: will testify to the characteristics in nature of touch DNA,
Speaker 1: including how it's deposited and transferred to an item of evidence,
Speaker 1: the methods used to collect and preserve touch DNA samples
Speaker 1: from items of evidence, the procedures and protocols used by
Speaker 1: forensic scientists to extract and analyze touch DNA, the manner
Speaker 1: in which results from touch DNA samples are interpreted, and
Speaker 1: the reliability of touch DNA analysis and its susceptibility in
Speaker 1: the field of forensic science. Now Lynn will also testify
Speaker 1: to the potential for DNA transfer between an individual and
Speaker 1: an object, including the distinction between primary and secondary transfer
Speaker 1: and the factors influencing the likelihood of transfer. On February seventeenth,
Speaker 1: twenty twenty five, the state produced a second round of disclosures,
Speaker 1: including one from Riley Nolln. As with the first disclosure,
Speaker 1: the focus of the second disclosure is touch contact DNA
Speaker 1: and direct versus indirect transfer. Although conceding that currently DNA
Speaker 1: technology cannot conclusively answer the question, the state offers the
Speaker 1: following opinion. Many complicated factors can influence the likelihood of
Speaker 1: transfer of DNA and the persistence of the transfer DNA
Speaker 1: after deposition. Current DNA technology cannot conclusively answer the question
Speaker 1: of when DNA was deposited on an item detected on
Speaker 1: M two zero two U two dash four eight four
Speaker 1: to three item one dot one resulted from secondary transfer. However,
Speaker 1: based on now lens training and experience, its r opinion.
Speaker 1: Given the quantity of DNA detected on M two zero
Speaker 1: two two four eight four to three item one dot one,
Speaker 1: and given the DNA profile obtained its single source, it's
Speaker 1: more than likely the result of a direct transfer. Argument
Speaker 1: introduction to the concept of touch DNA and transfer opinions.
Speaker 1: The terms touch and contact DNA came into use as
Speaker 1: the forensic community shifted from the testing of obvious identifiable
Speaker 1: stains such as blood or semen, to samples that cannot
Speaker 1: be identified via a biological test. Based on the increasing
Speaker 1: sensitivity of DNA tests, samples such as swabs from steering
Speaker 1: wheels of a carjack vehicle or a window. Jams and
Speaker 1: a burglary were collected and tested on the theory that
Speaker 1: a person would have had contact with the object and
Speaker 1: left DNA behind in the form of skin or other cells,
Speaker 1: hence the term touch or contact. The forensic community began
Speaker 1: to conduct research into the question of how DNA in
Speaker 1: the form of biological material moves in the environment, and
Speaker 1: this research led to the conclusion that it is impossible
Speaker 1: to determine how a particular deposit of DNA came to
Speaker 1: be on an object. In twenty thirteen, an article which
Speaker 1: reviewed the state of the research at the time made
Speaker 1: the following conclusions. Full DNA profiles can be recovered from
Speaker 1: items that have not been touched, but have been in
Speaker 1: the vicinity of someone speaking or coughing. It's not possible
Speaker 1: to establish from the amount of DNA recovered from a
Speaker 1: surface whether the DNA was deposited by a single touch
Speaker 1: or by regular use. It is not possible to use
Speaker 1: the amount of DNA recovered from an item of interest
Speaker 1: to inform whether the DNA was deposited by direct contact
Speaker 1: or indirect transfer. It's impossible to know from the quality
Speaker 1: of das DNA profile obtained whether the DNA was deposited
Speaker 1: by direct contact or indirect transfer g Meekin a Jamison
Speaker 1: DNA Transfer Review and Implications for Casework Forensic Science for
Speaker 1: thirty four and four to forty three, the authors introduced
Speaker 1: the concept of trace DNA, defined DNA that cannot yet
Speaker 1: be attributed to an identifiable body fluid. The authors rejected
Speaker 1: the term touched DNA as misleading, as such a term
Speaker 1: infers that the DNA recovered from a surface got there
Speaker 1: via that surface being touched, but that is usually not known.
Speaker 1: The review was followed by a similar review article by
Speaker 1: a different group of scientists six years later, which reached
Speaker 1: similar conclusions. Appropriately trained forensic practitioners are best placed to
Speaker 1: provide opinion and guidance on the interpretation of profiles at
Speaker 1: the activity level. However, those requested to provide expert opinion
Speaker 1: on DNA related activity level issues are often insufficiently trained
Speaker 1: to do so. Advocate recognition of DNA activity associated expertise
Speaker 1: to be distinct from the expertise associated with the identification
Speaker 1: of individuals. This is to be supported by dedicated training,
Speaker 1: competency testing, authorization, and regular fit for purpose proficiency testing.
Speaker 1: The term activity level refers to the question of the
Speaker 1: when and how of what happened, such how did the
Speaker 1: DNA come to be on the object and how long
Speaker 1: had it been there. Examples of indirect transfer of what
Speaker 1: might be characterized as touch or contact DNA are numerous
Speaker 1: and are summarized in the two review articles described above.
Speaker 1: Than or Chat discuss the use of the term touch
Speaker 1: DNA as one that can be misleading, as it implicates
Speaker 1: a specific mode of action and to some degree also
Speaker 1: a type of biological source. Using a less descriptive terms
Speaker 1: such as trace DNA is a more appropriate term to
Speaker 1: be used in casework when the source and mode of
Speaker 1: deposition are unknown. The article is an illustration of how
Speaker 1: extremely common complex the question of how and when is
Speaker 1: given the identification of a sample that has no biological
Speaker 1: source such as blood. Van Orschot summarized the routes of
Speaker 1: transfer considered it in the body of research and the
Speaker 1: illustration below. Despite this wealth of information and scientific study,
Speaker 1: the authors conclude that more work is necessary and that
Speaker 1: the expertise to offer activity level opinions the how and
Speaker 1: when is beyond the expertise of the crime lab analysts. Then,
Speaker 1: in twenty twenty four, NIST, the National Institute of Standards
Speaker 1: published a document entitled Forensic DNA Interpretation the Human Factors
Speaker 1: Improving Practice through a System's Approach. This document was the
Speaker 1: result of extensive work in years of public review and comment.
Speaker 1: The Expert Working Group EWG on Human Factors in Forensic
Speaker 1: DNA Interpretation began work in twenty twenty with the goal
Speaker 1: of recommending strategies for improving the production, evaluation, and communicationation
Speaker 1: of DNA results. The EWG consisted of experts in the
Speaker 1: field of forensic DNA and was subject to repeated rounds
Speaker 1: of public comment from the greater forensic community, most notably
Speaker 1: for this court. The EWG addressed the question of transfer
Speaker 1: and the ability of experts to profer opinions. The EWG
Speaker 1: addressed the following question, but a further important question is
Speaker 1: that activities led to the presence of that DNA. With
Speaker 1: the increased sensitivity of DNA techniques and sophisticated software, a
Speaker 1: DNA profile may be developed even when the contributor of
Speaker 1: the DNA never touched the item or area where that
Speaker 1: was swabbed. Alternatively, a person's DNA may be present when
Speaker 1: they were not involved in the crime. Therefore, Considering how
Speaker 1: or when the DNA may have been deposited or why
Speaker 1: it was not recovered can be vital except in ground
Speaker 1: truth known experiments, where an individual is observed to have
Speaker 1: been in contact with a service location, it's not possible
Speaker 1: to know whether the transfer was direct or indirect. The
Speaker 1: assessment of what is called TPPR transfer persistence, prevalence, and
Speaker 1: recovery is a separate skill, distinct from standard DNA profiling
Speaker 1: and interpretation. There are not adequate educational opportunities to inform
Speaker 1: these types of issues within the United States. The EWG
Speaker 1: concluded that an expert rarely, if ever, has all of
Speaker 1: the information needed to perform robust, balanced, and transparent evaluations
Speaker 1: of biological results regarding transfer or specific activities on the
Speaker 1: witness stand. All right, folks, we're gonna wrap this one
Speaker 1: up right here, and in the next episode we're gonna
Speaker 1: pick up where we left off. All of the information
Speaker 1: that goes with this episode can be found in the
Speaker 1: description box. What's up, everyone, and welcome to another episode
Speaker 1: of the Moscow Murders and more. In this episode, we're
Speaker 1: going to dive right back in to the defense motion
Speaker 1: to try and keep Riy lean. Now Lynd's testimony out
Speaker 1: of the trial, most notably for this court, the EWG
Speaker 1: addressed the question of transfer and the ability of experts
Speaker 1: to profer opinions. The EWG addressed the following question, but
Speaker 1: a further important question is what activities led to the
Speaker 1: presence of that DNA. With the increased sensitivity of DNA
Speaker 1: techniques and sophisticated software, a DNA profile may be developed
Speaker 1: even when the contributor of that DNA never touched the
Speaker 1: item or area that was swabbed. Alternatively, a person's DNA
Speaker 1: may be present when they were not involved in the crime. Therefore,
Speaker 1: considering how or when the DNA may have been deposited
Speaker 1: or why it was not recovered can be vital. Except
Speaker 1: in ground truth known experiments, where an individual is observed
Speaker 1: to have been in contact with a surface or location,
Speaker 1: it's not possible to know whether the transfer was direct
Speaker 1: or indirect. The assessment of what is called TPPR transfer persistence, prevalence,
Speaker 1: and recovery is a separate skill, distinct from standard DNA
Speaker 1: profiling and interpretation. There are not adequate educational opportunities to
Speaker 1: inform these types of issues within the United States. The
Speaker 1: EWG concluded that an expert rarely, if ever, has all
Speaker 1: the information needed to perform a robust, balanced, and transparent
Speaker 1: evaluation of biological results regarding transfer or specific activities. On
Speaker 1: the witness stand, the EWG offered proposed responses to questions
Speaker 1: of how and when DNA arrived on an object, none
Speaker 1: of which include a statement of how. Examples of questions
Speaker 1: posed to DNA experts. In your opinion, is direct transfer
Speaker 1: more likely than indirect DNA analysis does not allow a
Speaker 1: scientist to directly answer how the DNA was deposited direct
Speaker 1: or indirect transfer. The DNA results presented in my report
Speaker 1: regard the comparison of DNA profiles and can only help
Speaker 1: answer questions about whose DNA may be present or not.
Speaker 1: My testimony about the value of the DNA comparison is
Speaker 1: only meaningful to help the jury determine who the source
Speaker 1: of the DNA was. The testimony does not provide any
Speaker 1: information that addresses the issues of how or when question
Speaker 1: could this alleged activity have happened. Offering an opinion on
Speaker 1: this question would amount to speculating on what is alleged.
Speaker 1: It's not my role as a scientist to speculate about
Speaker 1: or determine what has happened. Question, is it possible that
Speaker 1: the DNA was deposited when the person of interest POI
Speaker 1: engage in an activity at the scene of prior to
Speaker 1: or after the alleged event. It's not my role to
Speaker 1: discuss the possibility of the alleged event or any other event.
Speaker 1: My expertise is based upon DNA profile comparisons, which can
Speaker 1: only assist in helping you answer questions about whose DNA
Speaker 1: is present or not. Agreeing that something is possible is
Speaker 1: not the same as offering an opinion about the probability
Speaker 1: of the results in the context of the case specific circumstances.
Speaker 1: Discussing whether something is possible does not help me convey
Speaker 1: the significance of the results in the context of this case.
Speaker 1: For example, getting struck by lightning or flipping a coin
Speaker 1: and getting heads are both possible but have very different probabilities. Question,
Speaker 1: are there other explanations for the presence or absence of
Speaker 1: this DNA? Answer? It would be an appropriate and speculative
Speaker 1: for me to discuss why the DNA was or was
Speaker 1: not detected. Answering this question would not allow me to
Speaker 1: convey a balanced assessment of the findings. In the context
Speaker 1: of this case, the only way I can evaluate the
Speaker 1: results is by considering at least two opposing views. The
Speaker 1: only conclusion that this Court can draw is the opinions
Speaker 1: regarding the means and manner which DNA was deposited on
Speaker 1: an item is not considered a proper topic of expert
Speaker 1: opinion for a DNA analyst and likely to lead to
Speaker 1: undue prejudice to mister Colberger, and would render his trial
Speaker 1: fundamentally unfair. B. This Court must exclude the opinion of
Speaker 1: Riileen Nolan. As set forth above, an expert cannot offer
Speaker 1: opinion within their expertise. The expertise of a typical lab
Speaker 1: analyst is not sufficient to allow them to be considered
Speaker 1: an expert in the area and mechanisms of DNA transfer.
Speaker 1: Nallyn's disclosure concedes as much, in that she acknowledges the
Speaker 1: current methods cannot conclusively offer an answer to the question
Speaker 1: of when and how. Now Lyn cannot be allowed to
Speaker 1: substitute or judgment in the face of the weight of
Speaker 1: the forensic community's agreement that the science and literature does
Speaker 1: not support any analyst testifying about the when and how
Speaker 1: of transfer. This opinion falls outside the norm of forensic
Speaker 1: DNA experts and would be highly speculative. Given the nature
Speaker 1: of the opinion proffered and the recommendations in the nis
Speaker 1: to human Factors report, this opinion would be highly speculative.
Speaker 1: In addition, it would have a tendency to mislead and
Speaker 1: confuse the jury and would require undue consumption of time
Speaker 1: to refute with the science typic articles and reports that
Speaker 1: clearly conflict with a proffer testimony. See this is disclosure
Speaker 1: is not proper rebuttal testimony. Now Len's disclosure contains no
Speaker 1: opinion that is not rebuttable, but appears to be the
Speaker 1: state's theory of the case that the DNA from mister
Speaker 1: Colberger arrived on the knife sheath via direct contact. A
Speaker 1: close reading of the disclosure from mister Colberger's DNA witness,
Speaker 1: doctor Ruth Ballard, does not contain any opinion regarding the
Speaker 1: how and when the DNA arrived on the sheath. This
Speaker 1: testimony should be excluded. D This court must exclude the
Speaker 1: use of terms touch or contact DNA. Under IRI four
Speaker 1: oh three. This court may exclude the use of the
Speaker 1: term's touch or contact DNA if its probative value is
Speaker 1: substantially outweighed by a danger of one or more of
Speaker 1: the following unfair prejudice, confusing the issues, misleading the jury,
Speaker 1: undue delay, wasting time, or needlessly presenting humulative evidencedence. Ire
Speaker 1: four o three. This rule requires the court to balance
Speaker 1: the probative value of the evidence against the danger that
Speaker 1: the evidence may be unfairly prejudicial Idaho twenty twenty four,
Speaker 1: Stay verus Johnson. See also Ire four oh three. Here
Speaker 1: the terms touch in contact or misleading in that the
Speaker 1: forensic community has determined through empirical research that it's not
Speaker 1: possible for a DNA expert to testify as to how
Speaker 1: the DNA was deposited on an item. The two terms
Speaker 1: insinuate that the deposit must have come from direct contact
Speaker 1: with an object, rather than a myriad other possible means
Speaker 1: of transfer documented in the literature. Furthermore, allowing testimony regarding
Speaker 1: the manner in which the DNA was deposited on the
Speaker 1: sheath would implicate the same concerns that the use of
Speaker 1: the two terms touch in contact invoke. The forensic community
Speaker 1: consensus and an extensive body of research shows that how
Speaker 1: and when opinions in DNA testing far exceed the expertise
Speaker 1: of a DNA analyst and are not founded in science.
Speaker 1: In this case, the only DNA evidence that implicates mister
Speaker 1: Colberger is the DNA found on the sheath found in
Speaker 1: the residence. From the lab reports and notes, as well
Speaker 1: as recent testimony by Rylean Naulin, it appears that at
Speaker 1: the sample Q one one was a swabbing of the
Speaker 1: leather strap on the sheath as well as the interior
Speaker 1: of the snap, not the outer snap surface, which apparently
Speaker 1: was not sampled in order to preserve the surface for fingerprinting.
Speaker 1: No seriological testing was done on the area swab for
Speaker 1: Q one one to identify any biological material. An area
Speaker 1: identified as Q one dot four swabs of stains on
Speaker 1: back of the sheath tested presumptively positive for blood and
Speaker 1: was DNA tested. Mister Colberger was excluded from this particular sample,
Speaker 1: which was identified as a mixture ISP LAB report M
Speaker 1: two zero two two DASH four eight four three number four. Thus,
Speaker 1: the government has the burden to prove the when and
Speaker 1: how of the DNA identified in Q one one. Allowing
Speaker 1: the use of these two terms would mislead the jury
Speaker 1: to believe that there was evidence to support the conclusion
Speaker 1: of direct contact, when in fact there is no direct evidence.
Speaker 1: The admission of these terms would lead to substantial waste
Speaker 1: of time in what it would require not only extensive
Speaker 1: cross examination of the government's witness on the topic, but
Speaker 1: also rebuttal testimony from defense experts on the question. Furthermore,
Speaker 1: the use of this language would unfairly prejudice mister Colberger.
Speaker 1: Unfair prejudice is prejudice that tends to suggest the decision
Speaker 1: on an improper basis Johnson, five to forty four, page three,
Speaker 1: dot d at seven, seventy four, citing State vers d
Speaker 1: As one seventy Idaho seventy nine, twenty twenty two. If
Speaker 1: the language is used, the jury might well believe, through
Speaker 1: expert testimony, as opposed to factual testimony, that mister Colberger
Speaker 1: left his DNA on the sheath via direct content, a
Speaker 1: fact the government must prove. As a consequence, there is
Speaker 1: a danger that the jury would reach a decision on
Speaker 1: an improper basis due to evidence that is unfairly prejudicial conclusion.
Speaker 1: As we set forth above, the forensic community has come
Speaker 1: to a consensus that DNA analysts do not have the
Speaker 1: expertise to render opinions on how and when a DNA
Speaker 1: sample arrived on an object. In addition to being misleading
Speaker 1: and inaccurate, allowing such testimony would result an undue consumption
Speaker 1: of time. This type of opinion testimony would not satisfy
Speaker 1: Ire seven oh three in that the expert cannot be
Speaker 1: qualified to profer such an opinion because it falls outside
Speaker 1: the expert specialized knowledge. The question of how and when
Speaker 1: is not for a lab analyst, and as the EWG
Speaker 1: points out, there's no training program in the US that
Speaker 1: would provide expertise for such an opinion. Mister Kolberger respectfully
Speaker 1: requests this Court grant his motion in Lemonae to exclude
Speaker 1: any use of the language touch and contact and the
Speaker 1: context of the DNA testing of the sheath, and any
Speaker 1: opinion of how and when the DNA on the sheath
Speaker 1: was deposited. This document was dated February twenty fourth, twenty
Speaker 1: twenty five, and it was signed by Bicco Barlow. If
Speaker 1: you'd like to contact me, you can do that at
Speaker 1: Bobby Kopuchi at ProtonMail dot com. That's Bobby c ap
Speaker 1: u Cci at ProtonMail dot com, or if you prefer
Speaker 1: You can find me on x at Bobby Underscore cap Ucci.
Speaker 1: All of the links that go with this episode can
Speaker 1: be found in the description box.