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State v. Fortin2/3/2004
dez, or Padilla] from being the source of the sperm fraction analyzed." On that basis, the court found that "defendant could not rationally argue that an unknown third-party [engaged in penile penetration of] the victim at the time of her death."
During the guilt phase of the trial, Dr. Charlotte Word of Cellmark testified about the DNA analysis of the dollar bill and the cigarette butt found at the murder scene. On cross examination, defense counsel questioned Dr. Word concerning the vaginal swab. As when Paula Yates testified, Dr. Word qualified her answers by assuming that there were "appropriate controls" and that the test had produced an "interpretable result." Dr. Word stated the number 2 allele could not have come from defendant, Fernandez, or Padilla. There was no follow-up question asking Dr. Word to explain the meaning of her response regarding the number 2 allele. Dr. Word noted that Cellmark's report did not provide that conclusion because of the absence of "the appropriate controls" and presumably that is why Dr. Word did not render an opinion within a reasonable degree of scientific probability on that subject. After Dr. Word's testimony, defendant did not seek reconsideration of the court's earlier ruling barring evidence or argument concerning the DNA analysis of the vaginal swab.
Based on that record, we conclude that the trial court did not abuse its discretion in keeping non-competent and irrelevant evidence before the jury. The sine qua non for the admissibility of scientific evidence is reliability. Expert testimony must comply with the requirements of N.J.R.E. 702.
That rule provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
[N.J.R.E. 702.]
We have recognized three basic requirements for the admission of expert testimony pursuant to N.J.R.E. 702:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.
[State v. Kelly, supra, 97 N.J. at 208.]
Not only must the methodology be valid and the procedures applied correctly, but the results achieved also must be reliable. "In addition to showing its general acceptance in the scientific community, a party offering scientific evidence must show that the technique, methodology or procedure was correctly used to produce that evidence." State v. Marcus, 294 N.J. Super. 267, 275 (App. Div. 1996), certif. denied, 157 N.J. 543 (1998). An expert offering scientific opinion testimony must do so within a reasonable degree of certainty or probability. See State v. Freeman, 223 N.J. Super. 92, 116 (App. Div. 1988) (holding that medical opinion testimony "must be couched in terms of reasonable medical certainty or probability; opinions as to possibility are inadmissible") (internal citations omitted), certif. denied, 114 N.J. 525 (1989).
In this case, both Yates and Dr. Word testified that Cellmark could not reach conclusions within a reasonable degree of scientific certainty or probability because of the absence of appropriate controls. Defendant presented no expert testimony to refute that assertion. Thus, we are left with a record in which the test results of the vaginal swab were deemed scientifically unreliable. That unchallenged te
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