Rivera v. State10/30/1992
e quoted from Dyas v. United States, 376 A.2d 827 (D.C.App. 1977), cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977), a test for admissibility of expert witness testimony, the third factor of which is similar to the Frye criteria. Under either the Cullin or Frye-Dyas approach, we are satisfied that evidence of the results of DNA profiles is admissible.
While the parties have not couched their arguments within the Wyoming Rules of Evidence, we are satisfied a correct approach, rather than invoking Cullin or Frye, would be to analyze the admissibility of scientific evidence in accordance with those rules. Essentially, both the relevance of the evidence and the expertise of the witness are addressed in Wyo.R.Evid. 702. When such testimony is admitted, then the succeeding rules, Wyo.R.Evid. 703 through 705, may be invoked. We add only the caveat that the opinion of the expert in a criminal case cannot embrace the witness' conclusion as to guilt or innocence. Stephens.
A majority of the appellate courts that have addressed the issue have concluded such evidence is generally accepted as reliable within the scientific community and, in most instances, have espoused the utilization of the restriction fragment length polymorphism (RFLP) technique that was invoked by the federal bureau of investigation laboratory and its expert in this case. United States v. Jakobetz, 747 F. Supp. 250 (D.Vt. 1990), aff'd, 955 F.2d 786 (2nd Cir. 1992) cert. denied, ___ U.S. ___, 113 S.Ct. 104, 121 L.Ed.2d 63 (U.S. 1992); State v. Pennell, 584 A.2d 513 (Del.Super. 1989); Martinez v. State, 549 So.2d 694 (Fla.App. 5 Dist. 1989); Caldwell v. State, 260 Ga. 278, 393 S.E.2d 436 (1990); Cobey v. State, 80 Md. App. 31, 559 A.2d 391 (1989), cert. denied, 317 Md. 542, 565 A.2d 670 (1989); People v. Shi Fu Huang, 145 Misc.2d 513, 546 N.Y.S.2d 920 (1989); State v. Pennington, 327 N.C. 89, 393 S.E.2d 847 (1990); State v. Pierce, 64 Ohio St.3d 490, 597 N.E.2d 107 (1992), reh'g denied, 65 Ohio St.3d 1436, 600 N.E.2d 679 (1992); State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990); Mandujano v. State, 799 S.W.2d 318 (Tex. App. Houston 1st Dist. 1990); Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609 (1990), cert. denied, ___ U.S. ___, 111 S.Ct. 281, 112 L.Ed.2d 235 (1990); State v. Woodall, 182 W. Va. 15, 385 S.E.2d 253 (1989). In addition to this precedent from other jurisdictions, that we find persuasive, we note the legislature of the state of Wyoming has set a policy tone in recognizing genetic testing in connection with paternity issues. Wyo. Stat. § 14-2-111(c) (1992 Supp.).
Since the scientific reliability of this DNA technique generally is accepted, in ruling upon the offer of such evidence in Wyoming, our trial courts need only be concerned with the requisite foundation. Because it does appear the possibility of an erroneous result is more likely to arise from the testing techniques than from the procedure, it is important for the trial court to be satisfied about the manner in which the testing was performed, and the qualifications of the individual who accomplished the scientific technique. These factors, however, are no different from those generally related to the acceptance of scientific evidence from an expert, and we do not perceive we are formulating any new law.
One matter that has been of concern to one court is testimony about the statistical probability of duplication. In State v. Schwartz, 447 N.W.2d 422 (Minn. 1989), the court held it was error for the trial court to permit testimony from the expert that the frequency of the DNA pattern in issue in the caucasian population was approximately one in thirty-three billion. The court noted recent publicity that imp
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