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Rivera v. State10/30/1992
ny particular procedure. Abstract certainty does not exist for infallibility. United States v. Two Bulls, 925 F.2d 1127 (8th Cir. 1991) (vacated upon death of defendant during en banc rehearing); Com. v. Curnin, 409 Mass. 218, 565 N.E.2d 440 (1991); People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985 (1989); Larry G. Butler, State v. Davis: DNA Evidence and the Use of Frye in Missouri, 60 UMKC L.Rev. 577 (1992); Don J. DeBenedictis, DNA Report Raises Concerns, 78 ABA Journal 20 (July 1992); Stephanie B. Goldberg, A New Day for DNA?, 78 ABA Journal 84 (April 1992); Kathryn Korkos Theofilos, Note, DNA Fingerprinting: The Definitive Evidence in a Criminal Trial, 22 Mem.St.U.L.Rev. 319 (1992); William C. Thompson & Simon Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Va.L.Rev. 45 (1989). Compare People v. Barney, 8 Cal.App.4th 798, 10 Cal. Rptr.2d 731 (1992), questioning lack of standardization for laboratory procedures.
In a few years, it may be recognized that DNA profile testimony, although continuing as useful evidence, is not completely safe from error. Our understanding of the variations in DNA testing parallels current scientific analysis and conclusions about the accuracy of another field of scientific testing. Many experts have now recognized that impaired driver determinations from alcoholic beverage consumption established by breathalyzer testing does not always prove inability or impaired ability to safely drive. The presence of multiple variable factors, relating to differences among individuals, may affect the reliability within the normal range for the establishment of impairment to drive. 2 Donald H. Nichols, Drinking/Driving Litigation §§ 23:07 through 23:31 and §§ 23:32 through 23:61 (1992). See 4 Donald H. Nichols, Drinking/Driving Litigation, Bibliography: Scientific Literature (1992) and Lawrence Taylor, Drunk Driving Defense § 6.4.4, at 672 (3rd ed. 1991).
DNA profiling can create equipment, method, sample, and genetic variances which may likewise require clear standards and continually applied skepticism about accuracy. Edward J. Imwinkelreid, The Debate in the DNA Cases Over the Foundation for the Admission of Scientific Evidence: The Importance of Human Error as a Cause of Forensic Misanalysis, 69 Wn.U.L.Q. 19 (1991).
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