Metropolitan News-Enterprise


Thursday, May 29, 2008


Page 1


New DNA Test Does Not Require Full Kelly Hearing—C.A.




A relatively recent type of DNA test is sufficiently similar to previous tests that results may be admitted without a full-fledged hearing on the test’s reliability, the Third District Court of Appeal has ruled.

The court Tuesday affirmed Alonzo E. Jackson’s convictions and sentence of 160 years to life in prison for sexual assaults on two women. Jackson, who was working at a Sacramento-area electronics store, was arrested in 2004 after a “cold” DNA hit linked him to crimes committed two years earlier.

After matching DNA taken from the rape victims to the sample taken in 1993 from Jackson, who had a 1989 conviction for a similar crime, police showed Jackson’s photo to the women, who separately identified him. One of them also identified Jackson’s car as that driven by her assailant.

Motion to Suppress

Prior to trial, the defense moved to suppress the DNA evidence, which was analyzed using a test kit called the Identifiler, which replaced the previously used Cofiler and Profiler Plus tests. Testimony at the suppression hearing indicated that the sheriff’s department had been using the Identifiler test since 2002.

The prosecution’s expert explained that the Identifiler uses 15 “short tandem repeats,” or STRs, sets of four nucleotide units of base pairs on the DNA strand. People have different numbers of repeats.

The STR process,  the expert testified, is widely accepted in the scientific community. The expert explained that the tests were similar but that the earlier tests used 13 STRs, although the STR process was the same.

Over defense objection, Sacramento Superior Court Judge Michael Garcia ruled that a full-fledged hearing on the validity of the Identifiler test was not required by People v. Kelly (1976) 17 Cal.3d 24.

Kelly holds that proponents of evidence based on new technology must show that the methodology has achieved general acceptance in the relevant scientific community, establish the qualifications of the expert testifying, and prove the procedures were correctly employed.

Same Process

Garcia ruled that because the STR process employed by the Identifiler was the same as that of the generally accepted Cofiler and Profiler Plus tests, there was no need to prove that the Identifiler itself was generally accepted. He offered to hold a hearing on the third Kelly prong, whether correct scientific procedures had been followed in Jackson’s case, but the defense elected to explore the issue on cross-examination at trial instead.

Justice Tami Cantil-Sakauye, writing for the Court of Appeal, said no Kelly hearing was necessary because the Identifiler did not “change the methodology of the testing of the DNA.”

The justice elaborated:

“The changes from the previous tests…appear to increase the accuracy and efficiency of the same methodology of PCR/STR testing. The Identifiler test kit appears to be a more sensitive test, able to use less template DNA and reaction volume to genetically type more loci using a broader range of fluorescent color dyes. Although defendant, and apparently the trial court, seemed most concerned about the introduction of ‘non-nucleotide linkers’ in the test kit, defendant admits to not knowing what the substance is and merely speculates the nonnucleotide linkers might interfere with the evaluation of mixed samples. Defendant has not shown the use of non-nucleotide linkers makes the Identifiler test a materially distinct scientific technique. Rather, it appears Identifiler is a new and improved version of the same scientific procedure already generally accepted by the scientific community.”

In an unpublished portion of the opinion, the justice rejected the defense claim that the forced taking of Jackson’s DNA sample in 1989 constituted an unreasonable search and seizure. The public interest in solving crimes, as well as in protecting innocent persons from being prosecuted, has been held to outweigh the privacy rights of convicted felons with regard to the mandatory collection of DNA, Cantil-Sakauye noted.

The case is People v. Jackson, C054954.


Copyright 2008, Metropolitan News Company