Steve Palmer [00:00:00]:

We are back, Lawyer Talk Podcast q and a edition. For those who watch this, sometimes I read a question I get in the comments. Sometimes I read a question I get by email. This time, I'm gonna summarize sort of a plethora of questions that we have had in recent times about DNA evidence. And maybe it's because we talked about DNA in the, in a in a case. But, I look. DNA is such a ubiquitous meaning. It just it's a it's this, like, people hear DNA and everybody's got their own connotations of what it means.

Steve Palmer [00:00:31]:

And DNA is fresh on my brain because I just came off of a hearing where I I took testimony from, on my side, three different DNA experts and the government called their own two or three DNA experts. So I'm all over DNA evidence right now, and I wanna talk about what it is and what it isn't and what you can do. First and foremost, I think there's this there's this thought that if a jury hears DNA evidence, and I think some of this is true. If if if a jury hears, oh, this guy's accused of of of rape or murder or whatever, and his DNA evidence is there, he must be guilty. And the problem nowaday and that that was, I think, more true at some point in, believe it or not, in the early days of DNA. And here's why. In the early days of DNA, in order to get a DNA profile, it took a pretty decent amount of DNA. I mean, you would have to leave behind a good chunk of DNA, whether it's fluids or whether it's skin cells or whatever it would be, to get a good comparable profile.

Steve Palmer [00:01:26]:

But nowadays, it's different. So any of those those who remember the COVID nineteen testing, you may have heard, like, they're cycling it up or they're, you know, the DNA is like that. So they'll take a small amount of DNA, and they'll they'll duplicate it. They'll cycle it up. And by doing that, they can create a bigger profile or bigger sample that they can then compare. But the point I'm telling you is or the point I'm trying to make here is that you we can have DNA matches, that can be compared to somebody with the tiniest amount of DNA. I'm talking like, just a handful of human cells, like, 20 human cells. And think about that.

Steve Palmer [00:02:07]:

So it's like hardly any. So it can look like on a piece of paper, a report from the government. Yeah. We had DNA on this girl's underwear, and it we compared that DNA to, maybe, or say, whoever, and it matched. And it looks like the guy must have done whatever was being alleged. Here's the problem. The the the efficiency of DNA detection importance of the or the significance of the DNA. So there are cases, for instance, where somebody's DNA was found under the fingernails of a murder victim.

Steve Palmer [00:02:51]:

And this, I think, happened out in California. That's a real case. And, because that individual's DNA was found, it was like a homeless guy's DNA was found under the fingernails of a murder victim or something like that. And, they found this homeless guy and, he was charged with the crime. Well, it turns out and I'm probably butchering the facts. Fix me in the in the comments, and we'll kick it around. But it turns out they found out that the homeless guy who was accused of the crime was was, like, in a different stratosphere. It was nowhere near the crime when it happened.

Steve Palmer [00:03:20]:

So everybody thinking, well, how does this happen? How do we get his DNA here? And in an amount that a government expert is willing to come into a courtroom and say, this is the guy. And it the a medic who worked on the victim, apparently, it also worked on the homeless guy at some point, and that was sufficient enough to transfer the homeless guy's DNA in a detectable amount to the murder victim. And it was this is sort of like, holy crap. And I had an expert coming in in my courtroom couple weeks ago who said the following and I found this sort of fascinating. He said, look, if I were called as an expert in that case in real time, I would have said it's probably the homeless guy there. The homeless guy probably had contact with the deceased in order order to deposit that DNA there. And then he looked directly at the court or the judge and and us and said, and I would have been wrong. I would have been wrong.

Steve Palmer [00:04:15]:

And he made a comment like, look, we draw these conclusions about how DNA gets to a certain place at our own peril. We have to be very cautious. And what he's really saying is, alright, government scientists. I get it. You're coming into a courtroom, and you're saying, look. In our opinion, it had to have been a lot of rubbing or a lot of contact or a lot of this in order to deposit those skin cell that skin cell DNA there. And what our expert was saying is, look. I was on board with that at one point, but not anymore.

Steve Palmer [00:04:43]:

And he was quoting things like studies where they would study household laundry. So they for instance, they would check maybe, somebody's underwear or somebody's article of clothing in their drawer that had already been washed, and they would find DNA of one of the other people in the household on that underwear. And mind you, this is households without any sort of accusations of wrongdoing. And my point is is that in a case where I'm defending, say, a sexual assault in that household, everybody would draw the conclusion that the DNA only got there by virtue of the sexual contact or conduct that is being alleged and not some laundry transfer, not some household, transfer just by virtue of living in the house. So is this is this is my warning to everybody, both accused of crimes that you didn't commit or maybe crimes you did commit. I don't care. Or attorneys who are defending DNA cases, get an expert. Get an expert.

Steve Palmer [00:05:37]:

And this is, it may go without saying for some of us, but for others, not so much. You know, you gotta get an expert. In order to analyze DNA, you should have an expert, and you should have the expert assist If you don't know how to do it, get bench notes and lab records, that are created by the by the government DNA lab. These are like the graphs for the for the, electropherograms and a bunch of scientific mumbo jumbo, but get an expert. And your expert can look through those records for you and tell you, look, there's not very much DNA here. This is easily consistent with some sort of innocent transfer. It might give you a defense or it might tell you don't have a defense. But if you don't do it, you don't know.

Steve Palmer [00:06:13]:

And that's that was part and parcel with the arguments I was making at my hearing. And it it's very possible that not impossible. It's likely, and it's happening that people are getting convicted on stuff like this when they shouldn't. And you you can't we can no longer take DNA evidence for granted that your client is guilty or that a person is guilty. The media will will will blow that horn at times. The prosecution certainly will, and maybe even, defense lawyers will say, look. They got DNA. They got DNA.

Steve Palmer [00:06:45]:

All I'm saying is it is not so cut and dried. The testing and here's the here's the paradox. The testing has gotten far more efficient and accurate, and that has resulted in far less efficient and accurate, conclusions that can be drawn from it because the amount of DNA that's detectable now is so small that it can get there in all sorts of ways. So anyway, DNA. I and and by the way, on on lawyer talk here, I've got it an expert lined up. I'm gonna come in. We're gonna we're gonna really kick this around and talk about, defending DNA cases. So if you if you really wanna geek out with me, stay tuned.

Steve Palmer [00:07:16]:

It'll come soon. But until then, this is lawyer talk q and a style off the record on the air.