Post by jlk7eUh huh... so older methods of DNA testing can result in showing that
the daughter of one woman and that woman's sister's daughter's son can
have completely different mitochondrial DNA? Whatever your personal
experiences with Anna Anderson, that's complete bullshit, no matter
what advances DNA testing has undergone in the past ten years.
Not so, genius. If the samples are faulty (which some of them are),
You have argued that the Romanov samples are faulty. I am not arguing
about that at all. I was concerned here only with the comparison of
the Anna Anderson DNA with that of the Duke of Edinburgh. That alone,
without bringing anything else into it, proves that she was not
Anastasia. The rest is gravy (which also supports the case of her not
being Anastasia, but perhaps not as strongly).
and if
the mtDNA testing methods of ten years ago are now known to give a high
percentage of false positive results (which they do),
What percentage is that? And I am not arguing on the basis of
possible "false positives" but on the basis of the negative result
comparing Anna Anderson's DNA with that of the Duke of Edinburgh.
Which did not match. That's not a false positive, or am I missing
something?
and if there's a
question about the shared maternal descent of "one woman and that woman's
sister's daughter's son" (which there definitely is),
...
Post by jlk7eNo spluttering and spewing here, as you haven't addressed my point at
all.
Here is WHY they will never address your point, they make stuff up to
support their case, without addressing the facts. Sorry for the length
of this post, but I for one am truly sick and tired of them saying
that this scientific analysis is "faulty" "unreliable" and
"inadmissable in courts" when it is WITHOUT DOUBT not the case. In
fact, one of the scientists who testified in this case, Dr. Terry
Melton, who determined by her mtdna research that AA was NOT GD
Anastasia is expressly found to be a reliable and credible witness
here, her work in the AA case is found to be STILL valid and reliable,
and this Court legally finds that her research is STILL reliable,
credible and admissable. I specifically wish to point out the
numerous times where each scientist testified UNDER OATH that they
were unaware of any scientific peer review studies which disagreed
with the accuracy and vailidity of their mtdna analyses and
methodology, as well as the numerous jurisditions which have found
this mtdna reseach admissible in evidence. This decision is from
September 2000 and has NOT been overturned:
PEOPLE v. KLINGER
713 N.Y.S.2d 823
N.Y.Co.Ct., 2000
Sept. 5, 2000
Judge Brown
PEOPLE v. MICHAEL KLINGER and RAYMOND KLINGER QDS:76703137The
following
constitutes the opinion, decision and order of the court.
***
By previous order of the Honorable Paul E. Kowtna, this court
conducted a Frye hearing on June 6, 2000 and June 13, 2000, to
determine the admissibility of mitochondrial DNA evidence at the trial
of the above-captioned Indictment.
At the hearing, the court heard testimony from two witnesses, Bruce
Budowle, Ph.D., a Senior Scientist with the Federal Bureau of
Investigation, and Terry Melton, PhD., President of Mitotyping
Technologies, LLC.
The court finds that Dr, Budowle and Dr. Melton were credible
witnesses.
The court makes the following conclusions of law:
The Court of Appeals has held that "[t]he long recognized rule of Frye
v. United States, 293 F. 1013, is that expert testimony based on
scientific principles or procedures is admissible but only after a
principle or procedure has 'gained general acceptance' in its
specified
field". In Frye (supra at 1014) the court stated:
"Just when a scientific principle or discovery crosses the line
between the
experimental and demonstrable stages is difficult to define. Somewhere
in
this twilight zone the evidential force of the principle must be
recognized,
and while courts will go a long way in admitting expert testimony
deduced
from a well-recognized scientific principle or discovery, the thing
from
which the deduction is made must be sufficiently established to have
gained general acceptance in the particular field in which it belongs"
(emphasis supplied)." (People v. Wesley, 83 NY2d 417).
"This Court has noted that the particular procedure need not be
'unanimously indorsed' by the scientific community but must be
'generally acceptable as reliable' (see People v. Middleton, 54 NY2d
42, 49). Thus the issue here concerns the acceptance by the relevant
scientific community of the reliability of DNA evidence." (People v.
Wesley, supra at 423).
"Once Frye has been satisfied, the question is 'whether the accepted
techniques were employed by the experts in this case" (People v.
Wesley, supra, citing People v. Middleton, 54 NY2d at 50). The focus
moves from the general reliability of the procedures followed to
generate the evidence proffered and whether they establish a
foundation for the reception of the evidence at trial. The trial court
determines, as a preliminary matter of law, whether an adequate
foundation for the admissibility of this particular evidence has been
established." (People v. Wesley, supra at 429).
The first witness was Dr. Bruce Budowle. Dr. Budowle has been employed
by the FBI for 17 years and has been a Senior Scientist for the past
one and a half to two years. He has a Ph.D. in genetics and a
Bachelor's Degree in biology, Dr. Budowle is a member of numerous
professional organizations including the American Academy of Forensic
Sciences and the International Society of Forensic Genetics. He has
published approximately 200-250 articles or materials relating to DNA
analysis, nine of those articles regarding mitochondrial DNA
(hereinafter "mtDNA"), The majority of these articles were subject to
peer review. Dr. Budowle has presented his research and findings to
the
International Symposium of Human Identification on nine separate
occasions. He explained that a symposium is a way to bring the
scientific community together so theycan exchange ideas. He also
serves on numerous journal and editorial boards both in this country
and abroad. Dr. Budowle has received numerous honors and awards
including the Forensic Scientist of the Year Award. He teaches a
course on mtDNA typing for the FBI and for Forensic Institute, which
is for national and international students. Dr. Budowle
has been qualified on numerous occasions as an expert witness in
molecular biology, genetics, population genetics, statistics and
forensic science in state, local and federal courts. He stated that he
has testified in more than half of the states in this country. Dr,
Budowle has also been qualified as an expert on mtDNA in New York,
Louisiana, Pennsylvania, Maryland and California.
As early as 1989, Dr. Budowle co-wrote a chapter of a book describing
mtDNA as a possible genetic tool. In October of 1993, he co-wrote one
of the first guidelines for the use of mtDNA sequencing in forensic
science. In 1995, he co-wrote a peer review journal
describing the procedure that was developed at the FBI for the
extraction, amplification and sequencing of mtDNA from human hair
shafts, Also, in 1995, a peer review article was co-written by him on
the validation of the aforesaid procedures for their application to
case work. An article was also co-written by Dr. Budowle, which was
published in 1997, that described a phenomenon observed in mtDNA
called heteroplasmy. Dr. Budowle also co-wrote a peer review article
for publication where a mtDNA study was done with crab
lice. He determined that this study was a valuable way of looking at
the DNA environment to determine whether its analysis produces a
reliable result. In 1999, he co-wrote a peer review journal article
describing some of the population data from a portion of the data
bases that demonstrates, by inference, the rarity of the mtDNA type
among unrelated individuals. Finally, Dr. Budowle is on the DNA
Commission of the International Society for Forensic Genetics. He was
one of 13 members of the DNA Commission who published an
editorial which contained guidelines for typing mtDNA.
***
MtDNA is much heartier than nuclear DNA. For example, old bones and
teeth that have been exposed to the environment may still have
sufficient quantity for mtDNA typing where nuclear DNA typing would
fail to give a result, There are, however, differences between the two
types of DNA. First, in nuclear DNA, you inherit half from your mother
and half from your father. In mtDNA, you inherit all of it from
your mother. Second, instead of being billions of letters long, the
mtDNA strand is 16,569 letters long. Further, mtDNA is circular rather
than linear. Dr. Budowle opined that the circular strands may actually
protect the mtDNA from being degraded.
***
the counting method is used to predict how common a particular
profile is in mtDNA. Next, the technician can go further by
calculating a confidence level based upon a statistical formula
established early in the twentieth century. The lab, in essence, would
calculate a confidence interval around the estimated frequency based
on the size of the database. This formula is based upon bell-shaped
distribution theories that have been in existence since the
mid-eighteenth century. A confidence level, based upon a statistical
analysis, creates an upper bound to the benefit of the accused, and
then provides that they have confidence that the frequency is no
higher than this amount,
Dr. Budowle is not aware of any peer review article that disagrees
with this method of calculation.
MtDNA research began at the FBI in 1992 and testing commenced in 1996.
Numerous procedures and protocols were developed that were subject to
peer review. Moreover, validation studies for mtDNA have been
published and subject to peer review.
Apparently, there have been no peer review articles that disagree with
the FBI validation studies. Rather, more articles were written in the
scientific community using the same procedures. Further, protocols are
subject to validation studies. The protocols of the different labs are
quite similar. Some labs, like Mitotyping Technologies, use the FBI
protocols and make minor adjustments. Some labs use the FBI protocols
without change and others create their own in the same fashion as did
the FBI. There are approximately a half dozen labs in the United
States that conduct mtDNA analysis. Two of those labs are
non-commercialthe FBI lab and the Armed Forces Institute of
Pathology. There are over 50 labs in Europe that do mtDNA analysis.
MtDNA is also used in anthropology, in identifying war remains, in
clinical diagnosis to exonerate subjects and repatriating children
that have been separated from their families. Dr. Budowle testified
that the testing procedures used for mtDNA profiling, i.e.,
extraction, the ability to quantitate and the PCR method, are the same
as those used for nuclear DNA
profiling. "The reliability of the PCR method for nuclear DNA has
gained general acceptance in the scientific community." (People v.
Lin, 267 AD2d 256; see also People v. Morales, 227 AD2d 648; People v.
Garcia, 190 AD2d 749). It is only in the typing where there is a
slight divergence between these two types of DNA. Over 1,000 articles
have been written with respect to mtDNA. Dr. Budowle testified that it
is
"a well-described genetic marker." Numerous validation studies were
published and subject to peer review. Dr. Budowle also stated that the
use of mtDNA for forensic identity testing is based upon universally
accepted techniques and has been subject to peer
review. Dr. Budowle testified that he knew of no peer review articles
that state the aforesaid process, as testified to, is not a
scientifically reliable process. He testified that the underlying
principles of mtDNA are generally accepted by the relevant scientific
community. Further, the statistical formulas used in determining
whether a profile is rare or common are acceptable in the scientific
community. Moreover, he knew of no peer review articles that state
that this application of statistics is not a reliable interpretation
of mtDNA. Further, Dr. Budowle testified that mtDNA is scientifically
reliable even though the heteroplasmy exists. He does not believe that
the existence of heteroplasmy makes it "an unreliable issue." He also
does not consider contamination to be a problem as long as it is
monitored and the proper controls are used. Further, the lab keeps an
inventory of the sequences of all the people in the laboratory which
would be a source of possible
contamination.
Dr. Terry Melton has been working with mtDNA since 1991. She has a
Ph.D. from Penn State University in genetics. She has performed
hundreds of DNA analyses and thousands of PCR amplifications. She
testified that her lab exclusively performs mtDNA analysis. One
high profile analysis that she was involved with was the claim of Anna
Anderson that she was the remaining living child of the Romanov
family. By the use of mtDNA, it was determined that she was not the
Grand Duchess Anastasia. Dr. Melton has been employed for the past two
years by Mitotyping Technologies, a commercial laboratory in
Pennsylvania, which conducts mtDNA analysis. She has been studying and
working with mtDNA for approximately nine years. Dr. Melton is a
member of Sigma Xi, a research society, and a provisional member of
the Academy of Forensic Sciences and she has published approximately
eleven articles in the area of mtDNA. Dr. Melton has published
numerous papers which were subject to peer review. One of the areas in
which she has been published is the examination of population
variations using mtDNA as a forensic marker. She was an invited
speaker at numerous conferences including the American Academy of
Forensic Sciences and the National Institute of Justice for the First
International Conference on Forensic Human Identification. Dr. Melton
has testified as an expert in the fields of genetics, PCR and mtDNA in
the state and federal courts in five states.
Like Dr. Budowle, Dr. Melton explained the procedures and protocols
that her lab follows in order to prevent contamination and maintain
the integrity of the achieved results. In order to prevent
heteroplasmy, the technician makes sure that the negative controls are
free of contamination. Her lab uses two types of negative controls,
one which goes with the sample from the moment of extraction through
the complete process. The other one is used for PCR amplification. The
latter control will tell the technician if contamination exists, She
also testified that both the French and the Italians have created
their own databases. If you totaled the databases from around the
world, the sequences would be close to eight thousand. Further, like
Dr. Budowle, Dr. Melton uses a standard statistical formula used by
the scientific community in order to obtain a confidence interval. Dr.
Melton testified that she is unaware of any peer review articles in
disagreement with
the method used by her lab with respect to the analysis and
interpretation of mtDNA. She testified that there is no process for
mtDNA analysis that is not generally accepted as a valid scientific
procedure. The whole process has been subject to peer review. Further,
the
statistical formula for mtDNA is generally accepted by the scientific
community. Dr. Melton testified that there were no peer review
articles stating that this statistical formula or method was not a
reliable interpretation of the mtDNA database. She also testified that
counting method, the confidence interval approach and the likelihood
calculation are each equally valid.
With respect to the database, Dr. Melton testified that, as it grows
in size, the frequency estimates for individual mtDNA profiles will
become more and more refined leading to increasingly reliable
population frequency calculations. Based upon the statistical
methodology, the results create a confidence interval of either 95 or
99 percent. The 95 percent confidence interval is standard for most
people, while the 99 percent confidence interval is slightly more
conservative. Moreover, the database can wily show an estimate since
every person in the world cannot be typed. Further, the database as it
is presently constituted is sufficient to provide reliable population
frequency estimates. The statistical
result of the confidence interval is that the lab is confident that
the true frequency in the population falls somewhere within that
range. So, in a 95 percent confidence interval, there is only an
uncertainty of 5 percent.
Dr. Melton testified that, in her opinion, the underlying principles
of mtDNA, the principles of mtDNA analysis and the statistical methods
as applied to mtDNA are generally accepted as reliable in the
scientific community.
Apparently the use of mtDNA as a forensic tool and its general
acceptance as reliable in the scientific community is one of first
impression in this state. This court's research reveals only one
unreported case in New York County Supreme Court which deals with the
reliability in the scientific community of mtDNA. On May 11, 2000, in
the case of People v. Edmund Ko, Justice Harold Beeler rendered an
oral decision on the record after a Frye Hearing with respect to the
reliability of mtDNA in the scientific community. Like this case, he
discussed his concerns with respect to contamination and heteroplasmy
which he found should be subject to the dictates of cross-examination.
Justice Beeler did not invalidate the procedures of mtDNA testing and
the reliability of this procedure. His determination was that
heteroplasmy has to be considered and factored in when making the
ultimate interpretation of the issues, involved. Further, he found the
counting method to be appropriate and that it would assist the jury to
a certain extent. He held open the possibility of the use of
population statistics after the court had received additional
testimony. Justice Beeler gave great credence to Dr. Budowle's
testimony, who was one of the witnesses in the case before him, and
determined that his testimony reflects the pulse of the scientific
community in this area.
MtDNA has been found scientifically reliable in other jurisdictions.
In the case of United States of America v. Douglas Turns, United
States District Court Judge James L. Graham (Southern District of
Ohio-Eastern division January 24, 2000) found that MtDNA testing
satisfied the standard set forth in Daubert v Merrell Dow
Pharmaceuticals, 509 U.S. 579 which requires the trial court to
determine whether the reasoning or methodology underlying the
testimony is scientifically valid and can be applied to the facts in
issue. Judge Graham found that the significant difference between
mtDNA and nuclear DNA is that mtDNA has significantly fewer numbers of
base pairs in the DNA helix, He found that the statistical analysis is
based upon a formula which is apparently recognized in the scientific
community and used in a variety of scientific contexts. Judge Graham
determined that this statistical method is an acceptable and reliable
estimate of probability. The Tennessee Criminal Appeal Court in the
case of State of Tennessee v. Randall Scott, 1999 WL 547460, which
follows the Daubert rule, determined that it was not error to admit
mtDNA without a hearing. Further, in Tennessee, the applicable case
law does not require a finding of scientific reliability. (See also
State of Tennessee v. Paul William Ware, 1999 WL 235592). In the case
of People v. Kevin Carter Holtzer (Circuit Court State of Michigan,
June 10, 1999) Judge Thomas Power determined, after an evidentiary
hearing, that mtDNA has achieved general scientific acceptance for
reliability as required by the Davis-Frye standard. In South Carolina,
the High Court found no error by the admittance of mtDNA (See State v.
Donney S. Council, 335 S.C. 1, 515 S.E. 2d 508) according to its
standard. The standard used by the courts of South Carolina is whether
the evidence will assist the trier of facts, whether the expert is
qualified and whether the underlying science is reliable. Further, the
probative value must outweigh any prejudicial effect. The Court of
Appeals of North Carolina also found no error by the admittance by the
trial court of mtDNA (See State v. Lamont ClaxtonUnderwood, 134 N.C.
App, 533, 518 S.E.2d 231). In North Carolina, a scientific method is
admissible at trial if it is scientifically reliable and these courts
do not exclusively adhere to the Frye standard. Rather, the courts in
North Carolina follow the facts as outlined by the United States
Supreme Court in Daubert when determining whether scientific evidence
is reliable, to wit: 1) whether the theory or technique can be or has
been tested, 2) whether the theory has been subject to peer review, 3)
whether the theory has been submitted to the scrutiny of the
scientific community, 4) the known or potential rate of error, and 5)
the general acceptance in the relevant scientific community. MtDNA has
been found admissible in the state of Maryland in that it has been
determined to be generally accepted in the relevant scientific
community (State v. Scotland Eugene Williams, Circuit Court for Anne
Arundel County, Maryland, Judge Pamela L. North, May 6, 1998; affirmed
Court of Special Appeal of Maryland, April 12, 2000). Further, the
courts of the Commonwealth of Pennsylvania have determined that mtDNA
has gained general acceptance in the relevant scientific community
pursuant to a Frye standard. (See Commonwealth v. Andrew Dillon,
January 30, 1998, Court of Common Pleas of LackawanaCounty;
Commonwealth v. Patricia Lynne Rorrer, January 20, 1998, Court of
Common Pleas of Lehigh County, affirmed Superior Court of
Pennsylvania, October 22, 1999). Likewise, a judge in California has
found that the mtDNA process is generally acceptable in the applicable
scientific community. (People v. Christian Guillermo Torres, September
21, 1999, Superior Court of California for the County of Orange).
The court finds that the credible evidence adduced at the hearing
established that mtDTA analysis and interpretations are generally
accepted as reliable in the scientific community and that the
procedures followed in this case establish a foundation for admission
of such evidence. The evidence has sufficiently established that the
analyses and interpretations of mtDNA has gained general acceptance in
the community of scientists that work in this field. The existence of
contamination and heteroplasmy do not affect the reliability of the
scientific procedure and these issues, which are subj ect to
cross-examination at the time of trial, do not invalidate the
procedures of mtDNA testing. Although both Dr. Budowle and Dr. Melton
testified that mtDNA can not be the unique identifier that nuclear DNA
can achieve, this conclusion, however, does not invalidate the
accuracy of the procedure and whether it is acceptable in the relevant
scientific community.
This court finds that many of the procedures used in analyzing mtDNA
are the same as those used in analyzing nuclear DNA. Further, the
statistical methods used by the technician in creating the upper
bounds of the confidence interval are basic statistical methods that
have been found generally accepted in the relevant scientific
community.
Moreover, mtDNA procedures have been subject to peer review and Dr.
Budowle testified that he knew of no peer review articles that state
that the aforesaid process and statistical methods were not
scientifically reliable. In addition, Dr. Melton testified that the
whole process has been subject to peer review and that she is unaware
of any peer review articles in disagreement with the methods used by
her lab with respect to analysis, interpretation and use of the
statistical formulas.
Therefore, the court will permit the People to present expert
testimony at trial regarding the mtDNA analysis and the results
determined therefrom.
The foregoing constitutes the opinion, decision and order of the
court.