WEBVTT 1 00:00:00.200 --> 00:00:03.200 What's up everyone, and welcome back to the program. In 2 00:00:03.240 --> 00:00:05.480 this episode, we're gonna spin right back up to Moscow, 3 00:00:05.599 --> 00:00:08.039 and we're gonna keep on keeping on. And this time 4 00:00:08.279 --> 00:00:11.880 I have the motion in le mean number six, which 5 00:00:11.919 --> 00:00:15.759 is ry Lean Nowlen and reference to touch and contact DNA. 6 00:00:17.679 --> 00:00:21.679 Case number CR zero one DASH twenty four DASH thirty 7 00:00:21.679 --> 00:00:26.399 one six sixty five, State of Idaho, Plaintiff versus Brian C. Coberger. 8 00:00:26.559 --> 00:00:30.199 The defendant comes now Brian C. Coberger, buying through his 9 00:00:30.239 --> 00:00:33.679 attorneys of record and pursuant to the Idaho Rules of Evidence, 10 00:00:34.079 --> 00:00:36.799 moves this Honorable Court for an order in le mean 11 00:00:37.200 --> 00:00:40.600 excluding the testimony of ry Lean Nowln and any testimony 12 00:00:40.640 --> 00:00:45.000 one referencing the terms touch or contact DNA or two 13 00:00:45.320 --> 00:00:47.640 purporting to be an opinion of the means or a 14 00:00:47.679 --> 00:00:51.600 mechanism for DNA being placed on the sheath by any 15 00:00:51.640 --> 00:00:55.320 witness called to testify about DNA. Both the term touch 16 00:00:55.640 --> 00:00:59.520 or contact DNA or any opinion regarding how DNA ends 17 00:00:59.560 --> 00:01:01.920 up on an ey item is misleading in that it 18 00:01:01.960 --> 00:01:05.079 assumes facts that must be proven would be confusing to 19 00:01:05.120 --> 00:01:07.920 the jury and waste substantial time in the bunking. The 20 00:01:07.959 --> 00:01:11.200 testimony of an expert that's outside the purview of the 21 00:01:11.239 --> 00:01:15.439 field of expertise and qualifications. Furthermore, the opinions of this 22 00:01:15.519 --> 00:01:19.120 expert have not been disclosed to mister Colberger. As set 23 00:01:19.159 --> 00:01:22.799 fourth below, the how, when, and why of DNA arrives 24 00:01:22.799 --> 00:01:26.040 on an object cannot scientifically be determined and is not 25 00:01:26.120 --> 00:01:30.040 the proper subject of expert testimony. The use of the 26 00:01:30.079 --> 00:01:33.159 language confuses and misleads the finder of fact and is 27 00:01:33.200 --> 00:01:36.000 barred by the rules four two four oh three, as 28 00:01:36.000 --> 00:01:40.040 well as due process in that the evidence is overly prejudicial. 29 00:01:40.280 --> 00:01:44.480 The erroneous admission of irrelevant and prejudicial evidence will offend 30 00:01:44.560 --> 00:01:48.560 due process when it renders a trial fundamentally unfair. A 31 00:01:48.640 --> 00:01:52.680 stell Vers Maguire five oh two US sixty two seventy 32 00:01:53.680 --> 00:01:58.280 Relevant Facts. A knife sheath was recovered tucked under the 33 00:01:58.319 --> 00:02:00.719 covers next to Miss Mogan at a seven twenty two 34 00:02:00.799 --> 00:02:04.120 King Road, Moscow, Idaho, on November thirteenth, twenty twenty two. 35 00:02:04.879 --> 00:02:08.919 The sheath was tested using standard DNA str methods by 36 00:02:08.960 --> 00:02:12.719 the Idaho State Police Item Q one DOT one. A 37 00:02:12.800 --> 00:02:16.240 swab from the sheath resulted in a single source MAL profile. 38 00:02:16.680 --> 00:02:19.960 This profile was uploaded to the code is DNA database 39 00:02:20.280 --> 00:02:24.960 and resulted in no hits to known offenders. In its disclosures, 40 00:02:24.960 --> 00:02:28.439 the government has indicated that Rylean Nowlyn from the ISP 41 00:02:28.599 --> 00:02:32.240 Lab will testify as follows. Miss now Lyn will also 42 00:02:32.319 --> 00:02:36.280 testify to touch DNA and transfer DNA. Specifically, now Lynn 43 00:02:36.360 --> 00:02:39.879 will testify to the characteristics in nature of touch DNA, 44 00:02:40.280 --> 00:02:43.879 including how it's deposited and transferred to an item of evidence, 45 00:02:44.199 --> 00:02:47.520 the methods used to collect and preserve touch DNA samples 46 00:02:47.719 --> 00:02:51.599 from items of evidence, the procedures and protocols used by 47 00:02:51.639 --> 00:02:56.360 forensic scientists to extract and analyze touch DNA, the manner 48 00:02:56.400 --> 00:03:00.759 in which results from touch DNA samples are interpreted, and 49 00:03:00.800 --> 00:03:04.560 the reliability of touch DNA analysis and its susceptibility in 50 00:03:04.599 --> 00:03:08.120 the field of forensic science. Now Lynn will also testify 51 00:03:08.159 --> 00:03:12.520 to the potential for DNA transfer between an individual and 52 00:03:12.719 --> 00:03:16.960 an object, including the distinction between primary and secondary transfer 53 00:03:17.199 --> 00:03:22.360 and the factors influencing the likelihood of transfer. On February seventeenth, 54 00:03:22.400 --> 00:03:25.800 twenty twenty five, the state produced a second round of disclosures, 55 00:03:26.080 --> 00:03:30.120 including one from Riley Nolln. As with the first disclosure, 56 00:03:30.199 --> 00:03:34.120 the focus of the second disclosure is touch contact DNA 57 00:03:34.439 --> 00:03:38.879 and direct versus indirect transfer. Although conceding that currently DNA 58 00:03:38.919 --> 00:03:42.719 technology cannot conclusively answer the question, the state offers the 59 00:03:42.759 --> 00:03:47.080 following opinion. Many complicated factors can influence the likelihood of 60 00:03:47.080 --> 00:03:50.439 transfer of DNA and the persistence of the transfer DNA 61 00:03:50.520 --> 00:03:55.319 after deposition. Current DNA technology cannot conclusively answer the question 62 00:03:55.400 --> 00:03:58.800 of when DNA was deposited on an item detected on 63 00:03:59.039 --> 00:04:01.520 M two zero two U two dash four eight four 64 00:04:01.560 --> 00:04:06.199 to three item one dot one resulted from secondary transfer. However, 65 00:04:06.280 --> 00:04:09.719 based on now lens training and experience, its r opinion. 66 00:04:10.000 --> 00:04:13.360 Given the quantity of DNA detected on M two zero 67 00:04:13.360 --> 00:04:16.360 two two four eight four to three item one dot one, 68 00:04:17.240 --> 00:04:21.000 and given the DNA profile obtained its single source, it's 69 00:04:21.079 --> 00:04:24.920 more than likely the result of a direct transfer. Argument 70 00:04:25.560 --> 00:04:29.160 introduction to the concept of touch DNA and transfer opinions. 71 00:04:29.800 --> 00:04:33.240 The terms touch and contact DNA came into use as 72 00:04:33.279 --> 00:04:37.040 the forensic community shifted from the testing of obvious identifiable 73 00:04:37.079 --> 00:04:40.519 stains such as blood or semen, to samples that cannot 74 00:04:40.519 --> 00:04:44.199 be identified via a biological test. Based on the increasing 75 00:04:44.240 --> 00:04:49.240 sensitivity of DNA tests, samples such as swabs from steering 76 00:04:49.240 --> 00:04:52.079 wheels of a carjack vehicle or a window. Jams and 77 00:04:52.120 --> 00:04:55.160 a burglary were collected and tested on the theory that 78 00:04:55.199 --> 00:04:57.680 a person would have had contact with the object and 79 00:04:57.759 --> 00:05:01.160 left DNA behind in the form of skin or other cells, 80 00:05:02.000 --> 00:05:05.519 hence the term touch or contact. The forensic community began 81 00:05:05.600 --> 00:05:08.920 to conduct research into the question of how DNA in 82 00:05:09.000 --> 00:05:12.680 the form of biological material moves in the environment, and 83 00:05:12.759 --> 00:05:16.079 this research led to the conclusion that it is impossible 84 00:05:16.120 --> 00:05:19.800 to determine how a particular deposit of DNA came to 85 00:05:19.839 --> 00:05:23.720 be on an object. In twenty thirteen, an article which 86 00:05:23.759 --> 00:05:27.000 reviewed the state of the research at the time made 87 00:05:27.000 --> 00:05:31.199 the following conclusions. Full DNA profiles can be recovered from 88 00:05:31.199 --> 00:05:34.120 items that have not been touched, but have been in 89 00:05:34.120 --> 00:05:38.639 the vicinity of someone speaking or coughing. It's not possible 90 00:05:38.639 --> 00:05:41.439 to establish from the amount of DNA recovered from a 91 00:05:41.480 --> 00:05:44.839 surface whether the DNA was deposited by a single touch 92 00:05:45.079 --> 00:05:48.680 or by regular use. It is not possible to use 93 00:05:48.720 --> 00:05:51.319 the amount of DNA recovered from an item of interest 94 00:05:51.360 --> 00:05:54.920 to inform whether the DNA was deposited by direct contact 95 00:05:55.240 --> 00:05:59.759 or indirect transfer. It's impossible to know from the quality 96 00:05:59.759 --> 00:06:03.040 of das DNA profile obtained whether the DNA was deposited 97 00:06:03.040 --> 00:06:09.000 by direct contact or indirect transfer g Meekin a Jamison 98 00:06:09.120 --> 00:06:13.439 DNA Transfer Review and Implications for Casework Forensic Science for 99 00:06:13.680 --> 00:06:16.720 thirty four and four to forty three, the authors introduced 100 00:06:16.720 --> 00:06:20.319 the concept of trace DNA, defined DNA that cannot yet 101 00:06:20.399 --> 00:06:25.439 be attributed to an identifiable body fluid. The authors rejected 102 00:06:25.439 --> 00:06:28.079 the term touched DNA as misleading, as such a term 103 00:06:28.120 --> 00:06:31.040 infers that the DNA recovered from a surface got there 104 00:06:31.120 --> 00:06:34.279 via that surface being touched, but that is usually not known. 105 00:06:34.720 --> 00:06:37.360 The review was followed by a similar review article by 106 00:06:37.399 --> 00:06:40.319 a different group of scientists six years later, which reached 107 00:06:40.360 --> 00:06:45.759 similar conclusions. Appropriately trained forensic practitioners are best placed to 108 00:06:45.759 --> 00:06:50.199 provide opinion and guidance on the interpretation of profiles at 109 00:06:50.199 --> 00:06:54.199 the activity level. However, those requested to provide expert opinion 110 00:06:54.279 --> 00:06:58.439 on DNA related activity level issues are often insufficiently trained 111 00:06:58.439 --> 00:07:04.040 to do so. Advocate recognition of DNA activity associated expertise 112 00:07:04.360 --> 00:07:07.920 to be distinct from the expertise associated with the identification 113 00:07:07.959 --> 00:07:11.680 of individuals. This is to be supported by dedicated training, 114 00:07:11.759 --> 00:07:16.519 competency testing, authorization, and regular fit for purpose proficiency testing. 115 00:07:18.680 --> 00:07:21.360 The term activity level refers to the question of the 116 00:07:21.399 --> 00:07:24.519 when and how of what happened, such how did the 117 00:07:24.600 --> 00:07:26.879 DNA come to be on the object and how long 118 00:07:26.879 --> 00:07:30.279 had it been there. Examples of indirect transfer of what 119 00:07:30.399 --> 00:07:33.959 might be characterized as touch or contact DNA are numerous 120 00:07:34.199 --> 00:07:37.399 and are summarized in the two review articles described above. 121 00:07:38.040 --> 00:07:40.680 Than or Chat discuss the use of the term touch 122 00:07:40.759 --> 00:07:43.600 DNA as one that can be misleading, as it implicates 123 00:07:43.600 --> 00:07:46.399 a specific mode of action and to some degree also 124 00:07:46.480 --> 00:07:50.120 a type of biological source. Using a less descriptive terms 125 00:07:50.160 --> 00:07:52.759 such as trace DNA is a more appropriate term to 126 00:07:52.800 --> 00:07:55.680 be used in casework when the source and mode of 127 00:07:55.839 --> 00:07:59.279 deposition are unknown. The article is an illustration of how 128 00:07:59.319 --> 00:08:02.959 extremely common complex the question of how and when is 129 00:08:03.000 --> 00:08:06.360 given the identification of a sample that has no biological 130 00:08:06.360 --> 00:08:10.319 source such as blood. Van Orschot summarized the routes of 131 00:08:10.360 --> 00:08:12.800 transfer considered it in the body of research and the 132 00:08:12.839 --> 00:08:18.600 illustration below. Despite this wealth of information and scientific study, 133 00:08:18.600 --> 00:08:21.879 the authors conclude that more work is necessary and that 134 00:08:21.959 --> 00:08:25.720 the expertise to offer activity level opinions the how and 135 00:08:25.759 --> 00:08:30.319 when is beyond the expertise of the crime lab analysts. Then, 136 00:08:30.399 --> 00:08:35.080 in twenty twenty four, NIST, the National Institute of Standards 137 00:08:35.360 --> 00:08:40.000 published a document entitled Forensic DNA Interpretation the Human Factors 138 00:08:40.320 --> 00:08:43.720 Improving Practice through a System's Approach. This document was the 139 00:08:43.759 --> 00:08:47.360 result of extensive work in years of public review and comment. 140 00:08:48.000 --> 00:08:51.879 The Expert Working Group EWG on Human Factors in Forensic 141 00:08:51.960 --> 00:08:55.559 DNA Interpretation began work in twenty twenty with the goal 142 00:08:55.600 --> 00:09:00.200 of recommending strategies for improving the production, evaluation, and communicationation 143 00:09:00.279 --> 00:09:05.279 of DNA results. The EWG consisted of experts in the 144 00:09:05.279 --> 00:09:08.559 field of forensic DNA and was subject to repeated rounds 145 00:09:08.559 --> 00:09:13.159 of public comment from the greater forensic community, most notably 146 00:09:13.240 --> 00:09:16.159 for this court. The EWG addressed the question of transfer 147 00:09:16.279 --> 00:09:20.519 and the ability of experts to profer opinions. The EWG 148 00:09:20.639 --> 00:09:24.200 addressed the following question, but a further important question is 149 00:09:24.240 --> 00:09:27.399 that activities led to the presence of that DNA. With 150 00:09:27.519 --> 00:09:31.639 the increased sensitivity of DNA techniques and sophisticated software, a 151 00:09:31.720 --> 00:09:35.600 DNA profile may be developed even when the contributor of 152 00:09:35.639 --> 00:09:38.679 the DNA never touched the item or area where that 153 00:09:38.759 --> 00:09:42.679 was swabbed. Alternatively, a person's DNA may be present when 154 00:09:42.679 --> 00:09:46.120 they were not involved in the crime. Therefore, Considering how 155 00:09:46.240 --> 00:09:49.159 or when the DNA may have been deposited or why 156 00:09:49.159 --> 00:09:53.200 it was not recovered can be vital except in ground 157 00:09:53.279 --> 00:09:56.840 truth known experiments, where an individual is observed to have 158 00:09:56.919 --> 00:10:00.000 been in contact with a service location, it's not possible 159 00:10:00.120 --> 00:10:04.679 to know whether the transfer was direct or indirect. The 160 00:10:04.759 --> 00:10:09.200 assessment of what is called TPPR transfer persistence, prevalence, and 161 00:10:09.240 --> 00:10:13.120 recovery is a separate skill, distinct from standard DNA profiling 162 00:10:13.120 --> 00:10:18.559 and interpretation. There are not adequate educational opportunities to inform 163 00:10:18.559 --> 00:10:22.200 these types of issues within the United States. The EWG 164 00:10:22.399 --> 00:10:25.600 concluded that an expert rarely, if ever, has all of 165 00:10:25.600 --> 00:10:30.399 the information needed to perform robust, balanced, and transparent evaluations 166 00:10:30.399 --> 00:10:34.720 of biological results regarding transfer or specific activities on the 167 00:10:34.759 --> 00:10:37.200 witness stand. All right, folks, we're gonna wrap this one 168 00:10:37.240 --> 00:10:39.360 up right here, and in the next episode we're gonna 169 00:10:39.399 --> 00:10:42.759 pick up where we left off. All of the information 170 00:10:42.799 --> 00:10:45.559 that goes with this episode can be found in the 171 00:10:45.679 --> 00:10:49.480 description box. What's up, everyone, and welcome to another episode 172 00:10:49.600 --> 00:10:53.559 of the Moscow Murders and more. In this episode, we're 173 00:10:53.559 --> 00:10:56.039 going to dive right back in to the defense motion 174 00:10:56.440 --> 00:11:00.279 to try and keep Riy lean. Now Lynd's testimony out 175 00:11:00.279 --> 00:11:04.799 of the trial, most notably for this court, the EWG 176 00:11:05.080 --> 00:11:08.759 addressed the question of transfer and the ability of experts 177 00:11:08.799 --> 00:11:13.360 to profer opinions. The EWG addressed the following question, but 178 00:11:13.440 --> 00:11:16.399 a further important question is what activities led to the 179 00:11:16.440 --> 00:11:19.879 presence of that DNA. With the increased sensitivity of DNA 180 00:11:19.960 --> 00:11:24.600 techniques and sophisticated software, a DNA profile may be developed 181 00:11:24.639 --> 00:11:27.440 even when the contributor of that DNA never touched the 182 00:11:27.480 --> 00:11:31.519 item or area that was swabbed. Alternatively, a person's DNA 183 00:11:31.840 --> 00:11:35.360 may be present when they were not involved in the crime. Therefore, 184 00:11:35.399 --> 00:11:38.360 considering how or when the DNA may have been deposited 185 00:11:38.679 --> 00:11:42.480 or why it was not recovered can be vital. Except 186 00:11:42.519 --> 00:11:45.679 in ground truth known experiments, where an individual is observed 187 00:11:45.679 --> 00:11:48.480 to have been in contact with a surface or location, 188 00:11:49.080 --> 00:11:51.919 it's not possible to know whether the transfer was direct 189 00:11:52.399 --> 00:11:58.080 or indirect. The assessment of what is called TPPR transfer persistence, prevalence, 190 00:11:58.080 --> 00:12:02.000 and recovery is a separate skill, distinct from standard DNA 191 00:12:02.080 --> 00:12:07.159 profiling and interpretation. There are not adequate educational opportunities to 192 00:12:07.240 --> 00:12:10.639 inform these types of issues within the United States. The 193 00:12:10.679 --> 00:12:14.399 EWG concluded that an expert rarely, if ever, has all 194 00:12:14.440 --> 00:12:18.000 the information needed to perform a robust, balanced, and transparent 195 00:12:18.039 --> 00:12:23.600 evaluation of biological results regarding transfer or specific activities. On 196 00:12:23.679 --> 00:12:28.960 the witness stand, the EWG offered proposed responses to questions 197 00:12:29.200 --> 00:12:32.039 of how and when DNA arrived on an object, none 198 00:12:32.080 --> 00:12:35.600 of which include a statement of how. Examples of questions 199 00:12:35.639 --> 00:12:39.000 posed to DNA experts. In your opinion, is direct transfer 200 00:12:39.080 --> 00:12:43.200 more likely than indirect DNA analysis does not allow a 201 00:12:43.240 --> 00:12:46.840 scientist to directly answer how the DNA was deposited direct 202 00:12:46.960 --> 00:12:51.039 or indirect transfer. The DNA results presented in my report 203 00:12:51.279 --> 00:12:54.480 regard the comparison of DNA profiles and can only help 204 00:12:54.519 --> 00:12:57.799 answer questions about whose DNA may be present or not. 205 00:12:58.720 --> 00:13:01.759 My testimony about the value of the DNA comparison is 206 00:13:01.799 --> 00:13:05.120 only meaningful to help the jury determine who the source 207 00:13:05.159 --> 00:13:08.639 of the DNA was. The testimony does not provide any 208 00:13:08.639 --> 00:13:13.320 information that addresses the issues of how or when question 209 00:13:13.519 --> 00:13:17.000 could this alleged activity have happened. Offering an opinion on 210 00:13:17.039 --> 00:13:20.080 this question would amount to speculating on what is alleged. 211 00:13:20.519 --> 00:13:23.080 It's not my role as a scientist to speculate about 212 00:13:23.200 --> 00:13:27.200 or determine what has happened. Question, is it possible that 213 00:13:27.240 --> 00:13:30.080 the DNA was deposited when the person of interest POI 214 00:13:30.399 --> 00:13:33.159 engage in an activity at the scene of prior to 215 00:13:33.360 --> 00:13:36.240 or after the alleged event. It's not my role to 216 00:13:36.279 --> 00:13:39.600 discuss the possibility of the alleged event or any other event. 217 00:13:40.120 --> 00:13:44.200 My expertise is based upon DNA profile comparisons, which can 218 00:13:44.240 --> 00:13:47.600 only assist in helping you answer questions about whose DNA 219 00:13:47.679 --> 00:13:51.639 is present or not. Agreeing that something is possible is 220 00:13:51.639 --> 00:13:54.399 not the same as offering an opinion about the probability 221 00:13:54.600 --> 00:13:58.159 of the results in the context of the case specific circumstances. 222 00:13:58.600 --> 00:14:01.440 Discussing whether something is possible does not help me convey 223 00:14:01.480 --> 00:14:04.399 the significance of the results in the context of this case. 224 00:14:04.840 --> 00:14:08.039 For example, getting struck by lightning or flipping a coin 225 00:14:08.080 --> 00:14:13.200 and getting heads are both possible but have very different probabilities. Question, 226 00:14:13.559 --> 00:14:16.720 are there other explanations for the presence or absence of 227 00:14:16.759 --> 00:14:21.120 this DNA? Answer? It would be an appropriate and speculative 228 00:14:21.159 --> 00:14:23.919 for me to discuss why the DNA was or was 229 00:14:23.960 --> 00:14:27.600 not detected. Answering this question would not allow me to 230 00:14:27.679 --> 00:14:30.559 convey a balanced assessment of the findings. In the context 231 00:14:30.559 --> 00:14:33.679 of this case, the only way I can evaluate the 232 00:14:33.720 --> 00:14:38.080 results is by considering at least two opposing views. The 233 00:14:38.120 --> 00:14:41.360 only conclusion that this Court can draw is the opinions 234 00:14:41.399 --> 00:14:44.559 regarding the means and manner which DNA was deposited on 235 00:14:44.600 --> 00:14:47.799 an item is not considered a proper topic of expert 236 00:14:47.840 --> 00:14:50.639 opinion for a DNA analyst and likely to lead to 237 00:14:50.840 --> 00:14:53.919 undue prejudice to mister Colberger, and would render his trial 238 00:14:53.960 --> 00:14:58.480 fundamentally unfair. B. This Court must exclude the opinion of 239 00:14:58.600 --> 00:15:02.480 Riileen Nolan. As set forth above, an expert cannot offer 240 00:15:02.519 --> 00:15:06.039 opinion within their expertise. The expertise of a typical lab 241 00:15:06.080 --> 00:15:09.200 analyst is not sufficient to allow them to be considered 242 00:15:09.240 --> 00:15:12.879 an expert in the area and mechanisms of DNA transfer. 243 00:15:13.559 --> 00:15:17.200 Nallyn's disclosure concedes as much, in that she acknowledges the 244 00:15:17.240 --> 00:15:21.080 current methods cannot conclusively offer an answer to the question 245 00:15:21.399 --> 00:15:24.360 of when and how. Now Lyn cannot be allowed to 246 00:15:24.399 --> 00:15:26.799 substitute or judgment in the face of the weight of 247 00:15:26.840 --> 00:15:30.519 the forensic community's agreement that the science and literature does 248 00:15:30.559 --> 00:15:34.519 not support any analyst testifying about the when and how 249 00:15:34.559 --> 00:15:39.399 of transfer. This opinion falls outside the norm of forensic 250 00:15:39.480 --> 00:15:44.000 DNA experts and would be highly speculative. Given the nature 251 00:15:44.000 --> 00:15:47.399 of the opinion proffered and the recommendations in the nis 252 00:15:47.440 --> 00:15:51.159 to human Factors report, this opinion would be highly speculative. 253 00:15:51.799 --> 00:15:54.480 In addition, it would have a tendency to mislead and 254 00:15:54.519 --> 00:15:58.279 confuse the jury and would require undue consumption of time 255 00:15:58.559 --> 00:16:01.519 to refute with the science typic articles and reports that 256 00:16:01.600 --> 00:16:06.200 clearly conflict with a proffer testimony. See this is disclosure 257 00:16:06.279 --> 00:16:10.600 is not proper rebuttal testimony. Now Len's disclosure contains no 258 00:16:10.720 --> 00:16:13.519 opinion that is not rebuttable, but appears to be the 259 00:16:13.519 --> 00:16:17.080 state's theory of the case that the DNA from mister 260 00:16:17.159 --> 00:16:20.519 Colberger arrived on the knife sheath via direct contact. A 261 00:16:20.559 --> 00:16:23.679 close reading of the disclosure from mister Colberger's DNA witness, 262 00:16:23.919 --> 00:16:27.519 doctor Ruth Ballard, does not contain any opinion regarding the 263 00:16:27.559 --> 00:16:30.559 how and when the DNA arrived on the sheath. This 264 00:16:30.679 --> 00:16:34.919 testimony should be excluded. D This court must exclude the 265 00:16:35.000 --> 00:16:41.399 use of terms touch or contact DNA. Under IRI four 266 00:16:41.440 --> 00:16:44.120 oh three. This court may exclude the use of the 267 00:16:44.240 --> 00:16:47.600 term's touch or contact DNA if its probative value is 268 00:16:47.639 --> 00:16:51.120 substantially outweighed by a danger of one or more of 269 00:16:51.159 --> 00:16:55.799 the following unfair prejudice, confusing the issues, misleading the jury, 270 00:16:56.039 --> 00:17:00.960 undue delay, wasting time, or needlessly presenting humulative evidencedence. Ire 271 00:17:01.159 --> 00:17:04.559 four o three. This rule requires the court to balance 272 00:17:04.599 --> 00:17:07.480 the probative value of the evidence against the danger that 273 00:17:07.519 --> 00:17:12.000 the evidence may be unfairly prejudicial Idaho twenty twenty four, 274 00:17:12.200 --> 00:17:16.480 Stay verus Johnson. See also Ire four oh three. Here 275 00:17:16.480 --> 00:17:19.039 the terms touch in contact or misleading in that the 276 00:17:19.039 --> 00:17:22.640 forensic community has determined through empirical research that it's not 277 00:17:22.759 --> 00:17:25.839 possible for a DNA expert to testify as to how 278 00:17:25.839 --> 00:17:29.640 the DNA was deposited on an item. The two terms 279 00:17:29.680 --> 00:17:32.960 insinuate that the deposit must have come from direct contact 280 00:17:33.000 --> 00:17:36.119 with an object, rather than a myriad other possible means 281 00:17:36.160 --> 00:17:41.319 of transfer documented in the literature. Furthermore, allowing testimony regarding 282 00:17:41.359 --> 00:17:43.759 the manner in which the DNA was deposited on the 283 00:17:43.759 --> 00:17:47.200 sheath would implicate the same concerns that the use of 284 00:17:47.240 --> 00:17:50.920 the two terms touch in contact invoke. The forensic community 285 00:17:51.000 --> 00:17:54.519 consensus and an extensive body of research shows that how 286 00:17:54.559 --> 00:17:58.440 and when opinions in DNA testing far exceed the expertise 287 00:17:58.480 --> 00:18:01.519 of a DNA analyst and are not founded in science. 288 00:18:02.279 --> 00:18:05.079 In this case, the only DNA evidence that implicates mister 289 00:18:05.160 --> 00:18:08.079 Colberger is the DNA found on the sheath found in 290 00:18:08.119 --> 00:18:11.160 the residence. From the lab reports and notes, as well 291 00:18:11.160 --> 00:18:15.160 as recent testimony by Rylean Naulin, it appears that at 292 00:18:15.200 --> 00:18:17.480 the sample Q one one was a swabbing of the 293 00:18:17.559 --> 00:18:20.559 leather strap on the sheath as well as the interior 294 00:18:20.640 --> 00:18:24.039 of the snap, not the outer snap surface, which apparently 295 00:18:24.119 --> 00:18:27.599 was not sampled in order to preserve the surface for fingerprinting. 296 00:18:28.400 --> 00:18:31.559 No seriological testing was done on the area swab for 297 00:18:31.640 --> 00:18:36.279 Q one one to identify any biological material. An area 298 00:18:36.400 --> 00:18:40.079 identified as Q one dot four swabs of stains on 299 00:18:40.200 --> 00:18:43.839 back of the sheath tested presumptively positive for blood and 300 00:18:43.960 --> 00:18:48.119 was DNA tested. Mister Colberger was excluded from this particular sample, 301 00:18:48.359 --> 00:18:51.720 which was identified as a mixture ISP LAB report M 302 00:18:51.759 --> 00:18:57.079 two zero two two DASH four eight four three number four. Thus, 303 00:18:57.119 --> 00:19:00.039 the government has the burden to prove the when and 304 00:19:00.079 --> 00:19:03.839 how of the DNA identified in Q one one. Allowing 305 00:19:03.880 --> 00:19:06.480 the use of these two terms would mislead the jury 306 00:19:06.759 --> 00:19:09.440 to believe that there was evidence to support the conclusion 307 00:19:09.759 --> 00:19:13.079 of direct contact, when in fact there is no direct evidence. 308 00:19:13.960 --> 00:19:17.000 The admission of these terms would lead to substantial waste 309 00:19:17.039 --> 00:19:20.160 of time in what it would require not only extensive 310 00:19:20.200 --> 00:19:23.920 cross examination of the government's witness on the topic, but 311 00:19:24.200 --> 00:19:29.079 also rebuttal testimony from defense experts on the question. Furthermore, 312 00:19:29.119 --> 00:19:32.279 the use of this language would unfairly prejudice mister Colberger. 313 00:19:33.559 --> 00:19:36.920 Unfair prejudice is prejudice that tends to suggest the decision 314 00:19:37.039 --> 00:19:41.519 on an improper basis Johnson, five to forty four, page three, 315 00:19:41.599 --> 00:19:44.640 dot d at seven, seventy four, citing State vers d 316 00:19:44.759 --> 00:19:49.200 As one seventy Idaho seventy nine, twenty twenty two. If 317 00:19:49.200 --> 00:19:52.599 the language is used, the jury might well believe, through 318 00:19:52.640 --> 00:19:57.519 expert testimony, as opposed to factual testimony, that mister Colberger 319 00:19:57.640 --> 00:20:00.119 left his DNA on the sheath via direct content, a 320 00:20:00.839 --> 00:20:04.920 fact the government must prove. As a consequence, there is 321 00:20:04.960 --> 00:20:07.799 a danger that the jury would reach a decision on 322 00:20:07.839 --> 00:20:12.440 an improper basis due to evidence that is unfairly prejudicial conclusion. 323 00:20:13.440 --> 00:20:16.359 As we set forth above, the forensic community has come 324 00:20:16.400 --> 00:20:18.960 to a consensus that DNA analysts do not have the 325 00:20:19.000 --> 00:20:22.400 expertise to render opinions on how and when a DNA 326 00:20:22.480 --> 00:20:26.039 sample arrived on an object. In addition to being misleading 327 00:20:26.160 --> 00:20:30.759 and inaccurate, allowing such testimony would result an undue consumption 328 00:20:30.839 --> 00:20:34.799 of time. This type of opinion testimony would not satisfy 329 00:20:34.920 --> 00:20:38.039 Ire seven oh three in that the expert cannot be 330 00:20:38.200 --> 00:20:41.880 qualified to profer such an opinion because it falls outside 331 00:20:41.880 --> 00:20:46.039 the expert specialized knowledge. The question of how and when 332 00:20:46.160 --> 00:20:49.240 is not for a lab analyst, and as the EWG 333 00:20:49.400 --> 00:20:52.480 points out, there's no training program in the US that 334 00:20:52.519 --> 00:20:57.160 would provide expertise for such an opinion. Mister Kolberger respectfully 335 00:20:57.160 --> 00:21:00.920 requests this Court grant his motion in Lemonae to exclude 336 00:21:01.039 --> 00:21:04.039 any use of the language touch and contact and the 337 00:21:04.039 --> 00:21:07.559 context of the DNA testing of the sheath, and any 338 00:21:07.599 --> 00:21:10.240 opinion of how and when the DNA on the sheath 339 00:21:10.799 --> 00:21:16.000 was deposited. This document was dated February twenty fourth, twenty 340 00:21:16.039 --> 00:21:20.039 twenty five, and it was signed by Bicco Barlow. If 341 00:21:20.039 --> 00:21:21.720 you'd like to contact me, you can do that at 342 00:21:21.720 --> 00:21:26.480 Bobby Kopuchi at ProtonMail dot com. That's Bobby c ap 343 00:21:26.759 --> 00:21:30.119 u Cci at ProtonMail dot com, or if you prefer 344 00:21:30.200 --> 00:21:35.319 You can find me on x at Bobby Underscore cap Ucci. 345 00:21:36.240 --> 00:21:38.160 All of the links that go with this episode can 346 00:21:38.200 --> 00:21:40.559 be found in the description box.