Harvin v. State ( 2024 )

Tyrone Harvin v. State of Maryland, No. 1951, September Term, 2022. Opinion by
Ripken, J.
EXPERT WITNESSES – ADMISSIBILITY OF EXPERT TESTIMONY –
MARYLAND RULE 5–702 – ABUSE OF DISCRETION
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Rochkind
v. Stevenson, 471 Md. 1 (2020), whether expert testimony is admissible is not a
determination of whether the proposed testimony is correct or incorrect; rather, the question
is whether the testimony meets a minimum threshold of reliability.
EXPERT WITNESSES – ADMISSIBILITY OF EXPERT TESTIMONY –
MARYLAND RULE 5–702 – ABUSE OF DISCRETION
A trial court’s determination as to the reliability of an expert’s conclusion will sometimes
require the court to consider data and assumptions that the expert has employed in deciding
threshold points relating to the methodology. Here, the circuit court was faced with a
challenge to the expert’s input of data into TrueAllele software. The circuit court did not
abuse its discretion in admitting the testimony because there was ample evidence from
which the court could properly conclude that the expert’s assumptions and parameters for
testing did not render the TrueAllele data inadmissible; however, those same assumptions
and parameters testified to by the expert are subjects available for exploration via cross-
examination.
EXPERT WITNESSES – ADMISSIBILITY OF EXPERT TESTIMONY –
MARYLAND RULE 5–702 – ABUSE OF DISCRETION
The inquiry into the admissibility of evidence under Rule 5-702 is a flexible one, and its
focus must be solely on the expert’s principles and methodology, not on the conclusions
that they generate. Here, when faced with a challenge that some of the data generated by
TrueAllele may not comport with Appellant’s DNA profile, the court heard testimony from
the State’s expert explaining why TrueAllele might have produced such results and how
she interpreted and validated those results into the final analysis. The circuit court
determined that the potential discrepancies in the data were not fatal to the admissibility of
the TrueAllele testimony. As the circuit court’s decision was supported by the record, it
acted within its discretion in admitting the State’s expert testimony.
EXPERT WITNESSES – ADMISSIBILITY OF EXPERT TESTIMONY –
MARYLAND RULE 5–702 – ABUSE OF DISCRETION – PEER REVIEW
Under the Daubert-Rochkind standard, one factor that trial courts may consider in
evaluating the admissibility of expert testimony under Maryland Rule 5-702 is whether a
theory or technique has been subjected to peer review and publication. Here, Appellant
challenged the admission of testimony about TrueAllele test results due to an alleged
failure to demonstrate that the software had been appropriately validated for use on samples
that may include artifacts or bacterial contamination. The record, however, contained
evidence of internal validation and multiple peer-reviewed studies, including studies that
used samples exhibiting real-world conditions. Thus, the circuit court did not act outside
the bounds of reason in determining that the TrueAllele software had been peer-reviewed.
EXPERT WITNESSES – ADMISSIBILITY OF EXPERT TESTIMONY –
MARYLAND RULE 5–702 – ABUSE OF DISCRETION
When an expert’s scientific testimony rests upon reliable grounds, it should be tested by
the adversary process, to include competing expert testimony and active cross-
examination, rather than excluding the testimony from jurors’ scrutiny for fear that they
will not grasp its complexities or satisfactorily weigh its inadequacies. Here, Appellant
challenged the admission of the expert’s testimony on the TrueAllele test results due to the
allegation that the electrophoresis machine producing the data subjected to TrueAllele
analysis was improperly calibrated. Appellant’s challenge was based on his expert’s
testimony that the machine required calibration, and his assertion that the State’s expert
failed to follow laboratory procedures that dictated when recalibration was required. Yet,
the circuit court also had evidence from the State’s expert that the machine did not require
calibration under the circumstances. The circuit court noted that the experts disagreed on
whether the machine had been properly calibrated but found that the State’s expert properly
applied principles and methods required by the department’s lab, which made this
testimony proper to submit to the jury. As the circuit court was not required to negate the
testimony of the State’s expert based on the competing explanation of Appellant’s expert,
the circuit court did not abuse its discretion in admitting the testimony.
Circuit Court for Baltimore City
Case No. 118261014
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 1951
September Term, 2022
TYRONE HARVIN
v.
STATE OF MARYLAND
Shaw,
Ripken,
Harrell, Glenn T., Jr.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Ripken, J.
Filed: September 26, 2024
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
2024.09.26
14:48:15 -04'00'
Gregory Hilton, Clerk
In June of 2022, a jury sitting in the Circuit Court for Baltimore City found Tyrone
Harvin (“Appellant”) guilty of raping and murdering an 83-year-old victim in her home.
The court sentenced Appellant to life in prison. As part of the case against Appellant, the
State introduced DNA evidence analyzed by TrueAllele, a probabilistic genotyping
software. Appellant presents the following issue for our review: whether the circuit court
erred in concluding that the results of the TrueAllele analysis were admissible under
Maryland Rule 5-702. 1 For the reasons to follow, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In August of 2018, Officer Alesha Salyers (“Ofc. Salyers”) of the Baltimore City
Police Department (“BPD”) was asked to perform a wellbeing check on the resident of an
apartment building who had not been seen for several days. After knocking on the door
and receiving no answer, Ofc. Salyers requested that a building employee unlock the
apartment door. Inside, Ofc. Salyers discovered a bloodied unclothed woman lying on the
floor, unresponsive and struggling to breathe. Ofc. Salyers immediately requested that a
medic be dispatched to the location. The victim was transported to a nearby hospital, where
she later succumbed to her injuries. The state of the victim’s wounds indicated that multiple
days had passed between the assault on the victim and her discovery by law enforcement.
Inside the victim’s apartment, crime scene technicians observed suspected blood on
the interior and exterior of the apartment door. They also observed several items scattered
around the apartment. Technicians retrieved multiple pieces of evidence from the scene of
1
Rephrased from: “Did the lower court err in denying Appellant’s Motion to Exclude the
Results of Trueallele Probabilistic Genotyping?”
the crime, including swabs of suspected blood, fragments of a broken lamp, and used
condoms and condom wrappers. An autopsy was performed on the victim. The autopsy
revealed that the victim suffered multiple injuries, including to the head, face, torso, and
arms. There was also evidence that the victim had been sexually assaulted. A BPD forensic
biologist analyzed numerous items, including swabs taken from various areas of the
victim’s body, as well as “pieces of a condom wrapper, a torn condom wrapper, another
condom wrapper, condoms, one condom, swabs of suspected semen, swabs from the
exterior of the front door, and a broken lamp.” Also analyzed were DNA reference samples
from both the victim and Appellant.
Christina Hurley (“Hurley”), a BPD forensic scientist, analyzed 22 DNA swabs
taken from items recovered during the investigation. After performing a manual analysis
of the DNA profile generated by a swab taken from a torn condom wrapper, Hurley
determined that it “yielded a single source male DNA profile” which matched Appellant.
Several other swabs contained DNA from a single contributor that matched the DNA
profile of the victim. In addition, Hurley examined several samples which contained a mix
of DNA from multiple sources. Some of these mixed-DNA samples were of insufficient
quality for Hurley to draw any meaningful results or provide a match to a specific
individual.
However, Hurley also identified three samples which contained mixtures of DNA
sources that she believed could be used to provide reliable matches. These were: (1) a swab
taken from the exterior of a condom (“condom A”), (2) a swab taken from the interior of a
second condom (“condom B”), and (3) swabs taken from the exterior of a broken lamp
2
found in the victim’s apartment. 2 Hurley believed that although each of the three samples
contained a complex mixture of DNA from at least two different contributors, the samples
also contained sufficient data to allow a computer program to generate a probabilistic
model of the likely DNA profile of the contributors.
Thus, Hurley elected to run the three identified samples through TrueAllele, a
probabilistic genotyping software designed to “develop a DNA profile from [an]
evidentiary . . . sample” that can then be compared against the known DNA profile of
individuals related to a given case. With the assistance of the TrueAllele software, Hurley
was able to determine with 99.9% certainty that the primary DNA contributor in two of the
three samples was the victim. 3 Hurley was also able to develop a probable genotype for a
contributor other than the victim in each of the three tested samples. In all three of those
samples, Appellant’s DNA matched the inferred genotype generated by TrueAllele.
In a pretrial motion in limine, Appellant asserted that the State’s use of TrueAllele
to aid in DNA interpretation was inadmissible under Maryland Rule 5-702. 4 The circuit
court denied the motion, and at trial, the DNA evidence was admitted over Appellant’s
2
The State asserted that the lamp, which was discovered broken on the floor, had been
used to bludgeon the victim.
3
The sample taken from the interior of condom B resulted in “a partial DNA profile
consistent with an indeterminant[] mixture of at least two contributors.” Although one of
the contributor genotype profiles could be inferred by TrueAllele, and was matched to
Appellant, the other contributor could not be determined.
4
Appellant also argued that introduction of the DNA evidence would violate his right to
due process under both the Maryland Declaration of Rights and the federal constitution.
This argument was rejected by the court, and Appellant does not reassert it on appeal.
3
objection. Subsequently, the jury found Appellant guilty of murder in the first degree,
felony murder, rape in the first degree, and carrying a deadly weapon openly with the intent
to injure. Appellant noted a timely appeal. Additional facts will be incorporated as they
become relevant to the issues.
DISCUSSION
I. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING EVIDENCE
DERIVED FROM TRUEALLELE PROBABILISTIC GENOTYPING.
A. Forensic DNA Analysis in General
We begin with a brief discussion of the ‘traditional’ form of DNA analysis, which
has long been recognized by the Supreme Court of Maryland as an important tool in
criminal investigations. See Armstead v. State, 342 Md. 38 (1996). Deoxyribonucleic acid,
or DNA, is comprised of a series of base pairs, which form the ‘rungs’ of a double-helix
structure. See Young v. State, 388 Md. 99, 106–07 (2005). The specific position that a gene
occupies in the double-helix structure is known as its locus. Id. at 107.
The vast majority of the base pair sequences of human DNA are identical for
all people. There are, however, a few DNA segments or genes, called
“polymorphic loci,” which are highly variable among individuals. The
alternative forms of these individual polymorphic gene fragments are called
“alleles.” It is these polymorphisms that have great significance for forensic
DNA analysis because they provide the basis for DNA identification.
Gross v. State, 371 Md. 334, 339 n.1 (2002) (internal citations omitted).
Forensic DNA analysis involves generating a profile based on a DNA sample taken
from a potential suspect and comparing it to the profile generated from a sample of DNA
recovered at a crime scene. See Armstead, 342 Md. at 52. This analysis typically “does not
compare every nucleotide of the suspect’s DNA with every nucleotide of the sample
4
DNA,” but rather involves determining the specific allele pairs that appear at a series of
identified loci in the suspect’s genome and comparing those results with the alleles
appearing in the corresponding loci of the sample recovered from a crime scene. See id.The Supreme Court of Maryland has recognized DNA testing as a “powerful evidentiary
tool” and opined that its importance for both exculpatory and inculpatory purposes “cannot
be overstated.” Allen v. State, 440 Md. 643, 658 (2014) (internal quotation marks and
citations omitted).
B. The Daubert Hearing
Returning to the case at bar, in October of 2021, the circuit court held a two-day
hearing (“the Daubert hearing”) addressing Appellant’s motion in limine. In the motion,
Appellant requested that the court preclude the State’s experts from discussing the
TrueAllele analysis pursuant to Maryland’s Daubert-Rochkind standard of evaluating the
admissibility of expert testimony. See Rochkind v. Stevenson, 471 Md. 1 (2020) (adopting
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) for the purposes of
applying Md. Rule 5-702).
i. The State’s expert
During the hearing, the State called Hurley as a witness to testify about her
experience using TrueAllele in the course of her work as a BPD forensic scientist. Hurley
testified that when her lab receives a new DNA sample from the field, lab technicians first
add heat and chemicals to attempt to isolate a purified form of the DNA present in the
sample. Next, a technician estimates the total amount of DNA in the sample and amplifies
the DNA so the lab’s instruments can more easily detect the DNA. These samples, along
5
with concurrently prepared controls, are then placed in a calibrated electrophoresis
machine, or “genetic analyzer[,]” which produces the dataset that can subsequently be used
in genetic analysis.
Hurley explained that when performing a DNA analysis, she begins by attempting
to draw any conclusions she can from a manual interpretation of the data. Hurley indicated
that if a sample included a “complex mixture” of DNA from multiple sources, or if the
sample was low quality, meaning that “some of the DNA is not fully detected,” 5 she can
elect to input the data into the TrueAllele program to aid her interpretation. Hurley noted
that TrueAllele does not play any role in the process of refining DNA or gathering data
from a physical sample. Rather, TrueAllele is a “probabilistic genotyping software
system.” It can evaluate the data generated from the physical DNA sample, and, after tens
of thousands of iterative analyses of the dataset, assigns a probability as to each possible
allele present at each locus in the sample. The result of this process is that TrueAllele
generates electropherograms, which display the presence of possible alleles as peaks on a
graph. In this way, TrueAllele can use an imperfect DNA sample or a sample containing a
mixture of multiple DNA sources to make an inference as to the likely genotypes present
at given loci, as well as estimate the mixture weight for each DNA contributor in a sample.
Thus, TrueAllele is a tool used to assist in analyzing DNA evidence when human review
5
Hurley noted that in the instance where some portions of the DNA cannot be successfully
sequenced, the resultant gaps in the data are referred to as “drop out.” By contrast, “drop
in” occurs when “an allele is present from an unidentified source that you cannot attribute
to anything.” Hurley agreed that ‘drop in’ is either “low level contamination” in the sample,
or potentially an allele from another individual’s DNA present in the sample.
6
of the raw data might not be possible.
Hurley testified that the BPD lab had been using TrueAllele as part of its DNA
analysis procedure since the software was internally validated as effective in 2015. Per
Hurley, the validation was conducted in accordance with nationally recognized standards,
and the lab tested the TrueAllele software to ensure it was able to produce “reasonable and
reproducible[]” results. Hurley also noted that TrueAllele was validated using test DNA
samples which included between one and six different contributors, so as to “represent
what we typically see in casework from good, pristine samples down to complex mixtures
with degraded DNA[.]” As part of BPD’s validation, the lab ran the test samples multiple
times; the validation data was also shared with a lab at Cybergenetics, the company that
owns and licenses TrueAllele, which completed a parallel test producing concordant
results. The BPD validation was also externally audited by a third party, and Hurley
testified that TrueAllele had been the subject of several peer-reviewed publications.
Hurley also testified that any data inputs are reviewed by two different analysts to
ensure that the data quality is sufficiently high to generate usable results, and when an
analyst generates TrueAllele results, those results will also be reviewed by a second
qualified DNA analyst, as well as subjected to an administrative review. BPD policy
dictates that TrueAllele results must be reproducible in order to be reportable, meaning at
least two different runs of the program using the same data must show concordant results.
The policy states that a maximum of six runs using “the same run conditions” is
permissible. Additionally, Hurley noted that the electrophoresis machines that perform the
genetic analysis receive yearly calibration and maintenance, in addition to being subjected
7
to additional recalibration as needed. While Hurley noted that some of the samples in this
case included impurities in the DNA, this was not out of the ordinary, as “we do generally
see [artifacts] in our samples.” Hurley testified that these artifacts could result in pull-up—
peaks in the TrueAllele-produced graphs that did not represent actual alleles present in the
sample. Although Hurley testified that manual analysis could be used to determine whether
or not a peak was a real allele or merely the product of an artifact in the sample, TrueAllele
itself “is a continuous biological modeling software so it is assigning a probability to
everything[,]” including the possibility that a presumptive artifact in the data is actually an
allele from a DNA contributor.
During the hearing, the State introduced evidence concerning the three inculpatory
DNA samples Hurley identified using TrueAllele. Hurley’s report reflected that when she
analyzed the data from the exterior of condom A, the sample appeared to contain a mixture
of two contributors—a major female contributor, identified by manual analysis as the
victim, and a minor male contributor whose DNA profile could not be identified with
manual analysis. Hurley input the data into TrueAllele and instructed it to assume the
presence of two contributors, one of whom was the victim. Hurley conducted three runs of
the data, which generated a reportable inferred genotype for the minor contributor—that
inferred genotype matched Appellant. A match between Appellant and the inferred
genotype was between 1.55 million and 259 million “times more probable than a
coincidental match to an unrelated individual in the . . . American population[,]”
depending on the specific ethnic group.
Using data from the second sample, the swab taken from the interior of condom B,
8
Hurley was unable to make any definite conclusions using manual DNA analysis.
However, Hurley testified that the profile “looked mostly like a single source profile[,]”
although with the addition of a third allele at one locus, as well as the presence of an “off-
ladder” allele, numbered 10.1, at a locus termed Penta E. 6 Hurley began by entering the
data into TrueAllele and instructing the program to assume the presence of two DNA
contributors. TrueAllele did not produce any usable results based on two runs under this
parameter. Next, Hurley instructed TrueAllele to assume that only a single contributor was
present in the sample, essentially informing the program to “look[] for the major
contributor” in the sample. Under the single-contributor parameter, TrueAllele was able to
produce two successive concordant results—notably, the inferred genotype from both runs
matched to Appellant. 7 Although the analysis had produced reportable results, Hurley also
elected to run the data through TrueAllele several additional times, instructing the program
to assume the presence of two DNA contributors, one of whom was Appellant. This did
not produce usable results.
Hurley also applied TrueAllele to data generated from a swab taken from a fragment
6
Hurley testified that an “off-ladder allele” or an “off-ladder peak” is an allele that doesn’t
“fall within one of the bins in [the] associated ladder” and is thus possibly the result of non-
human DNA mixed into the sample. Nevertheless, although noting that the 10.1 result “did
not fit with the rest of the data,” Hurley also agreed that an allele of 10.1 at Penta E could
occur within the human genome, and that Appellant does not have a 10.1 allele located at
Penta E. Thus, as she could not conclusively determine that the 10.1 peak was
contamination that should have been removed from the data prior to TrueAllele analysis,
Hurley included it in the data she subjected to probabilistic analysis.
7
A match between the inferred genotype and Appellant’s genotype was between 39.1
trillion and 18.6 quadrillion times more probable than a coincidental match to an unrelated
American individual, depending on ethnic group.
9
of the broken lamp. Like the swab from condom A, the analysis determined that the sample
from the lamp contained a mix of DNA from a “major female contributor[,]” identified as
the victim, and at least one minor DNA contributor. After inputting the data into TrueAllele
and performing three runs, concordant results were achieved, and TrueAllele generated an
inferred genotype for the minor contributor. The genotype inferred by TrueAllele matched
Appellant; this match was determined to be between 7.35 million and 101 million times
more probable than a coincidental match to an unrelated individual, depending on ethnic
group.
ii. Appellant’s expert
During the hearing, Appellant called Dr. Karl Reich (“Dr. Reich”) as an expert
witness in forensic DNA analysis. Dr. Reich opined that he did not consider the TrueAllele
results reliable. In support, Dr. Reich asserted that TrueAllele has not been subjected to
peer review, because employees of the firm that created TrueAllele had been involved in
the software’s validation testing process. However, Dr. Reich agreed that in a typical peer
review process, “the developer is not involved in the review of the manuscript” prior to
publication, and that a developer’s financial interest should not have any impact on the peer
review process. Dr. Reich further noted that as TrueAllele is a proprietary software, he did
not have access to its source code, although he agreed that he “underst[ood] the basis for
how the software is working[.]” He also opined that TrueAllele did not have a known error
rate, but that by the same token, “there isn’t a decent error rate for all of forensic DNA
testing.”
In addition to his concerns with TrueAllele’s reliability generally, a significant
10
portion of Dr. Reich’s testimony was concerned with “quality control issues with the
samples[.]” Dr. Reich asserted his concern that the presence of pull-up artifacts in the
sample potentially could “affect the ability to differentiate authentic DNA
fragments . . . from noise and artifact[s] which should be ignored[.]” Dr. Reich noted that
the underlying data contained “some degree of pull-up.” In Dr. Reich’s view, additional
allele peaks caused by pull-up artifacts should never occur in a “correctly calibrated
instrument” as “they merely complicate the analysis,” could “hide or obscure data” and can
“add to the time or effort it takes to decide whether [potential alleles are] real or should be
. . . eliminated.”
Dr. Reich also addressed the sample from the exterior of condom A that indicated
the presence of a 10.1 allele at Penta E, which does not appear in Appellant’s genome. In
Dr. Reich’s view, if the presence of the 10.1 allele was an actual allele arising from the
genome of a single-source contributor, as opposed to an artifact, Appellant could not be
the source of the DNA. Notably, Dr. Reich did not advance an opinion about whether the
10.1 allele was part of the genome, or an artifact that should have been ignored by the
analysis. Moreover, he indicated that the results for the sample including the 10.1 allele
were not “[c]onsistent with [Appellant’s] exclusion” as a DNA contributor.
Although Dr. Reich maintained that TrueAllele produced unreliable results, he
allowed that it had been used by the FBI since 2006, that it had been profitably applied by
the Innocence Project to exonerate people convicted of crimes, and that it had been upheld
11
as sufficiently reliable under the Daubert standard in multiple states. 8 Dr. Reich strongly
agreed that TrueAllele results should “fit with the logic of a human analysis[,]”and
confirmed that in his view, Hurley had described using TrueAllele to supplement her
manual analysis, and had not substituted its results for her own. Additionally, when asked
if he agreed with the practice of instructing the software to assume the presence of certain
contributors, or a certain number of contributors, Dr. Reich replied:
[T]here was a decision made . . . to run the program under certain parameters
and that’s fair. Do it again under another set of parameters and see what the
difference is. Do it again. The computer is free work. . . . So do it as many
times as you need before you have a firm grasp of what the best results are.
iii. The court’s ruling
Following the Daubert hearing, the court issued a detailed written memorandum in
which it explained the rationale for denying Appellant’s motion to exclude the TrueAllele
evidence under Maryland Rule 5-702. In the memorandum, the court addressed each of the
enumerated Daubert-Rochkind factors in turn. 9 The court determined that the question of
8
Dr. Reich noted that he had “been involved” in several cases in which state courts
admitted TrueAllele results.
9
The Supreme Court of Maryland has endorsed a non-exclusive list of factors which trial
courts should consider in evaluating the admissibility of expert testimony under Maryland
Rule 5-702. See State v. Matthews, 479 Md. 278, 310–11 (2022). These factors are:
(1) whether a theory or technique can be (and has been) tested;
(2) whether a theory or technique has been subjected to peer review and
publication;
(3) whether a particular scientific technique has a known or potential rate of
error;
(4) the existence and maintenance of standards and controls; and
(5) whether a theory or technique is generally accepted[;]
...
12
whether the BPD lab’s electrophoresis machine was properly calibrated prior to producing
the data which was analyzed by TrueAllele was an issue of fact for the jury to resolve. The
court explained that this question, which arose from a disagreement between the experts
over whether artifacts or impurities in the data were misidentified as actual alleles, was
“classic fodder for . . . cross-examination” rather than a basis for excluding the TrueAllele
results entirely. The court determined that TrueAllele had been peer-reviewed, that BPD
utilized significant quality control standards, and that Hurley had not unreasonably
extrapolated her conclusion from an accepted premise. Likewise, the court found that
Hurley had adequately explained her baseline assumptions in using TrueAllele, and the
court considered them reasonable. The court also found that TrueAllele had been subjected
to validation studies and was known to reach reliable results.
The court noted that Hurley’s conclusions, although not developed expressly for the
purposes of testifying or in the capacity of a paid consultant, did arise out of her
employment as a forensic analysist with BPD, and thus, she had knowledge that she could
(6) whether experts are proposing to testify about matters growing naturally
and directly out of research they have conducted independent of the
litigation, or whether they have developed their opinions expressly for
purposes of testifying;
(7) whether the expert has unjustifiably extrapolated from an accepted
premise to an unfounded conclusion;
(8) whether the expert has adequately accounted for obvious alternative
explanations;
(9) whether the expert is being as careful as he [or she] would be in his [or
her] regular professional work outside his [or her] paid litigation
consulting; and
(10) whether the field of expertise claimed by the expert is known to reach
reliable results for the type of opinion the expert would give.
Id.13
be called to present testimony related to the cases she was assigned. The court did not make
an explicit finding that TrueAllele results were or were not “generally accepted[,]” but
noted that the courts of several states have allowed TrueAllele results, and further that
Appellant’s argument focused less on the reliability of TrueAllele in general, but “more on
the program’s reliability in light of the claim that the electrophoresis machine was
uncalibrated.”
After completing its consideration of the Daubert-Rochkind factors, the court
concluded that:
Hurley did not use an unknown, untested procedure in conducting her
analysis. In accordance with the BPD’s validation studies, she analyzed
samples, made a decision on which samples to run through TrueAllele as
well as the number of runs, reached her conclusions, and had those
conclusions subjected to technical and administrative review.
The court determined that Appellant’s contentions related to the quality of the data and the
calibration of the electrophoresis machine went “to weight, rather than admissibility of the
evidence.” Thus, the court concluded that the TrueAllele results were sufficiently reliable
under the Daubert-Rochkind standard to be useful to a trier of fact in determining a fact at
issue.
C. The Standard of Review
As the Supreme Court of Maryland has stated, the admissibility of evidence under
Md. Rule 5-702 is a matter entrusted to the sound discretion of the trial court:
“[T]he admissibility of expert testimony is a matter largely within the
discretion of the trial court, and its action in admitting or excluding such
testimony will seldom constitute ground for reversal.” Roy v. Dackman, 445
Md. 23, 38–39, 124 A.3d 169 (2015). When the basis of an expert’s opinion
is challenged pursuant to Maryland Rule 5-702, the review is abuse of
14
discretion. Blackwell v. Wyeth, 408 Md. 575, 618, 971 A.2d 235 (2009).
Rochkind v. Stevenson, 471 Md. 1, 10–11 (2020) (adopting the standard outlined in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as the test for
determining admissibility under Md. Rule 5-702). A court abuses its discretion when “no
reasonable person would take the view adopted by the [trial] court.” Williams v. State, 457
Md. 551, 563 (2018). “Rather, the trial court’s decision must be well removed from any
center mark imagined by the reviewing court and beyond the fringe of what that court
deems minimally acceptable.” Devincentz v. State, 460 Md. 518, 550 (2018) (internal
quotation marks and citation omitted). A trial court may also abuse its discretion under the
Daubert-Rochkind framework when it admits expert evidence “where there is an analytical
gap between the type of evidence the methodology can reliably support and the evidence
offered.” Abruquah v. State, 483 Md. 637, 652 (2023). Nevertheless, the standard remains
a deferential one, as “the law grants a [trial] court the same broad latitude when it decides
how to determine reliability as it enjoys in respect to its ultimate reliability determination.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999) (emphasis in original); see also
Rochkind, 471 Md. at 38 (incorporating Kumho Tire into Maryland’s Daubert-Rochkind
standard). As the Supreme Court of Maryland has instructed, “it is still the rare case in
which a Maryland trial court’s exercise of discretion to admit or deny expert testimony will
be overturned.” State v. Matthews, 479 Md. 278, 306 (2022).
D. The Parties’ Contentions
Appellant asserts that the circuit court abused its discretion by failing to grant his
motion excluding the TrueAllele evidence under Maryland’s Daubert-Rochkind standard.
15
Although Appellant does not argue on appeal that TrueAllele is inherently unreliable, he
contends that the trial court erred by failing to assess whether the use of TrueAllele was
properly applied in this case specifically. 10 Appellant likewise contends that the TrueAllele
evidence should have been excluded because some of its outputs were inconsistent with
Hurley’s manual analysis of the data, and asserts that the State failed to demonstrate that
TrueAllele had been specifically tested against data including artifacts and potential
bacterial contamination. Last, Appellant contends that the court erred by concluding that
the dataset itself was adequate, as it included several artifacts and potential impurities. In
so arguing, Appellant does not advance the contention that TrueAllele is per se unreliable,
merely that the court did not properly exercise its gatekeeping function in this case. 11
The State disagrees, arguing that the court properly fulfilled its role as gatekeeper
under the Daubert-Rochkind standard, and did not abuse its discretion in concluding that
TrueAllele and its application were sufficiently reliable for the results to be admitted during
trial. The State asserts that the court correctly concluded that any disputes between the
10
Appellant conceded at oral argument that in this case, the challenge to the reliability of
the methodology concerned Hurley’s application of the procedures rather than the
reliability of the TrueAllele system itself. We note that the evidence available to the circuit
court demonstrated that TrueAllele evidence has been widely accepted in multiple courts
across the country, including in at least one reported appellate case. See State v. Simmer,
935 N.W.2d 167 (Neb. 2019).
11
This Court has previously determined that TrueAllele is “by definition, a less reliable
DNA test” than traditional analysis but is “one necessary to resort to by police when the
circumstances do not permit a more reliable test.” Morten v. State, 242 Md. App. 537, 561
(2019). In Morten, we found no error in a court’s admission of TrueAllele testimony under
Maryland Rule 5-702, but nevertheless vacated on other grounds. See id. at 570–71, 586–
87.
16
parties’ experts were nothing more than “fodder for vigorous cross-examination.”
Specifically, the State argues that Hurley correctly utilized the TrueAllele software, that
any discrepancies between Hurley’s manual results and the TrueAllele results did not
impact admissibility under the Daubert-Rochkind standard, that TrueAllele has been
validated using complex DNA samples which include artifacts, and that the court
permissibly determined that the question of whether Hurley’s electrophoresis machine was
properly calibrated could be considered by the jury. Thus, the State contends that the court
did not abuse its discretion in concluding that the TrueAllele results were admissible
pursuant to Maryland Rule 5-702. 12
E. Analysis
Under the Daubert-Rochkind framework, trial courts evaluate the admissibility of
expert testimony by a “flexible inquiry into an expert’s reliability, focusing on the expert’s
principles and methodology as opposed to their conclusions.” Covel v. State, 258 Md. App.
308, 329 (2023). In so doing, the Supreme Court has urged courts to consider the non-
exhaustive list of factors enumerated in Rochkind, none of which is determinative.
Rochkind, 471 Md. at 35–37. Although the Supreme Court has described an expert’s
methodology as “a critical aspect” of their reliability and the “center” of a Daubert-
Rochkind analysis, the Court has also noted that the question of “whether an expert’s
12
In the alternative, the State asserts that the TrueAllele results should have been
automatically admitted under section 10-915 of the Courts and Judicial Proceedings Article
(“CJP”) of the Maryland Code, which allows DNA evidence to be automatically admissible
under certain circumstances. See Md. Code CJP § 10-915. Because we affirm the circuit
court’s admissibility determination under the Daubert-Rochkind standard, we need not
reach the State’s alternative argument.
17
methodology is sufficiently reliable to admit the expert’s testimony at trial will sometimes
require a trial court to consider data and assumptions that the expert has employed in
deciding threshold points relating to the methodology.” Katz, Abosch, Windesheim,
Gershman & Freedman, P.A. v. Parkway Neuroscience and Spine Inst., LLC, 485 Md. 335,
376 (2023) (“Katz Abosch”).
Appellate courts must still “rely on trial courts that conduct Daubert-Rochkind
hearings to determine where the line between data and methodology is in the specific cases
before them, and whether the proffered expert’s choices relating to data, assumptions, and
other inputs implicate the reliability of the expert’s methodology.” Id. at 378. Moreover, a
Daubert-Rochkind analysis does “not upend [the] trial court’s gatekeeping function.
Vigorous cross-examination, presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Matthews, 479 Md. at 312 (internal quotation marks and citations
omitted). At its core, a Daubert-Rochkind analysis seeks to determine “not whether
proposed expert testimony is right or wrong, but whether it meets a minimum threshold of
reliability so that it may be presented to a jury[.]” Abruquah, 483 Md. at 655.
In the instant case, we determine that the circuit court did not abuse its discretion in
concluding the TrueAllele evidence passed the Daubert-Rochkind reliability standard. The
court carefully evaluated each of the enumerated factors and concluded based on the
evidence that the TrueAllele data, as analyzed by Hurley, was sufficiently reliable to be
properly submitted to the jury. We will, however, address each of Appellant’s contentions
in turn.
18
i. The TrueAllele parameters
Appellant first asserts that some of the programmatic parameters used in the
TrueAllele analysis did not “fit the data[,]” and thus, the circuit court erred by concluding
that “the assumptions and parameters Hurley used to engage TrueAllele are fodder for
cross-examination, not a basis for excluding TrueAllele.” Specifically, Appellant claims
that “TrueAllele was unable to generate usable results when it was run with the correct []
number [of] contributors[,]” and argues that “the software only generated results including
assuming a single source sample and did not generate any results including as a mixture of
two people[.]” Therefore, in Appellant’s view, the court was required to exclude the
TrueAllele data, notwithstanding the fact that Hurley’s analysis did not rely upon the runs
which utilized the parameters Appellant views as suspect. Upon review of the record, we
find no error.
Here, the court heard testimony from Hurley that when analyzing one of the
samples, the swab from the interior of condom B, she ran the program under two different
parameter sets—alternately asking TrueAllele to assume the presence of two contributors
during some runs, and the presence of only a single contributor during others. Hurley stated
that although “the profile, as a whole, looked mostly like a one-person profile[,]” which
matched closely to Appellant’s DNA, there were additional alleles that could indicate the
presence of an additional DNA contributor. Therefore, despite achieving reportable results
using the single contributor parameter, Hurley “set [TrueAllele] up to run both ways.”
Because TrueAllele did not return usable results when asked to assume the presence of two
contributors, Hurley did not include those outputs as part of her final analysis.
19
Our reading of the record does not support Appellant’s contention that Hurley’s use
of TrueAllele to query the possibility of a second DNA contributor in a single sample
“implicated the reliability of the method” overall. Indeed, Appellant’s own expert explicitly
endorsed this application of probabilistic genotyping, stating:
[T]here was a decision made . . . to run the program under certain parameters
and that’s fair. Do it again under another set of parameters and see what the
difference is. . . . So do it as many times as you need before you have a firm
grasp of what the best results are.
We do not agree with Appellant that Hurley’s mere exploration of the possible presence of
an additional contributor, which did not affect her ultimate analysis, rendered Hurley’s use
of TrueAllele unreliable. Here, the court could properly conclude that Hurley’s action,
which did not generate usable results, did not impact the successful use of TrueAllele in
other contexts when she instructed the software to use other parameters.
Nor do we agree with Appellant that the court impermissibly declined to consider
Hurley’s use of parameters as part of the Daubert-Rochkind analysis. To be sure, Appellant
is correct that determining the reliability of an expert’s conclusion “will sometimes require
a trial court to consider data and assumptions that the expert has employed in deciding
threshold points relating to the methodology.” Katz Abosch, 485 Md. at 376. Here, the
circuit court found that the evidence did “not demonstrate [that] Hurley extrapolated from
an accepted premise to an unfounded conclusion.” The court also determined that “the
assumptions and parameters Hurley used to engage TrueAllele are fodder for cross-
examination, not a basis for excluding TrueAllele.” This was not erroneous.
The court did not conclude, as Appellant asserts, that the sufficiency of Hurley’s
20
basis for her opinion or Hurley’s application of TrueAllele were inherently questions
reserved for the jury. Nor did the court incorrectly assert that the assumptions and
parameters an expert uses always impact the weight rather than the admissibility of
evidence. Rather, the court applied its discretion and concluded that in this case, Hurley’s
assumptions and parameters did not render the TrueAllele data inadmissible, although they
might also potentially prove fruitful subjects for cross-examination. See id. at 378 (“We
rely on trial courts . . . to determine where the line between data and methodology is in the
specific cases before them, and whether the proffered expert’s choices relating to data,
assumptions, and other inputs implicate the reliability of the expert’s methodology.”).
Indeed, as this Court has held, specifically on the topic of TrueAllele’s admissibility
under Maryland Rule 5-702, “[w]hatever evidence was competent to prove or disprove the
very admissibility of the TrueAllele modality as a matter of law should ipso facto have
been competent for the lesser task of adding to or subtracting from its persuasive weight as
a matter of fact.” Morten v. State, 242 Md. App. 537, 570 (2019). The court acted well
within its discretion in declining to exclude the TrueAllele evidence on these bases, but
nevertheless permitting cross-examination on those same topics. See Rochkind, 471 Md. at
38 (“Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking
shaky but admissible evidence.” (quoting Daubert, 509 U.S. at 596)).
ii. Consistency between results and underlying data
Appellant also argues that because in his view, Hurley “failed to reconcile the
generated results and the underlying data[,]” the court erred by admitting the TrueAllele
21
evidence. Specifically, Appellant contends that in one location in one sample, the software
“ignored three of the four peaks it had identified [at one locus], instead assigning a 100%
probability” to a specific allele pair, despite Hurley’s subsequent statement that TrueAllele
assigns each peak a probability “no matter what.” In so arguing, Appellant misunderstands
Hurley’s testimony. Hurley’s comment that TrueAllele assigns peaks a probability “no
matter what” was part of a response to a question about whether she was concerned by the
potential for TrueAllele to erroneously consider artifacts as part of a DNA profile. Hurley
responded that she was not, because, in addition to assigning each part of the inferred
profile a probability, TrueAllele would be “evaluating the data as a whole[,]” and was
“going to consider everything[,] including any artifacts as . . . potential peak[s].” Hurley
subsequently emphasized the steps she took to evaluate the effectiveness of any TrueAllele
run.
Appellant also asserts that TrueAllele produced results inconsistent with the
underlying data when, in one sample at the Penta E locus, the program determined that the
most likely allele pair at the locus was (10, 10), although it had identified peaks of alleles
10.1, 10.3, and 15, as opposed to at 10. 13 In Appellant’s view, this was indicative of an
unreliable methodology. However, Hurley presented testimony that when she analyzed the
Penta E data, she noticed the presence of “an off[-]ladder allele[.]” She testified that the
off-ladder peak was “very high” and “did not match or . . . fit with the rest of the data in
that profile[,]” which led Hurley to believe that the off-ladder peak was potentially an
13
For further clarification, see discussion at footnote 6 supra.
22
artifact, that is, “DNA amplified from another source, a non-human source.” Hurley
subsequently re-ran and re-amplified the sample, which confirmed the presence of the off-
ladder peak, and that “the rest of the data fit within th[e] quality parameters[.]” Therefore,
Hurley “didn’t have any concerns” that TrueAllele wasn’t working properly. She also
testified that TrueAllele can consider the possibility that not all data present in the sample
comes from the same individual and assigns a probability to that situation. Hurley also
noted that during analysis of the sample that Appellant asserts generated unreliable data,
TrueAllele “was run under the off[-]ladder high contributor option which will expand the
bins of the ladder. So that may account for it calling the 10.1 a 10.”
In both circumstances, Appellant points to situations where TrueAllele assigned
high probabilities to the potential presence of alleles at loci which are inconsistent with
Appellant’s genetic code. This, in Appellant’s view, “should have excluded Appellant as a
possible contributor.” 14 We disagree. The purpose of the TrueAllele software is to derive
probable genetic codes of DNA contributors from samples which are either less than
14
At oral argument, Appellant’s counsel clarified his contention that Appellant should have
been excluded, stating that “[Appellant’s] alleles did not match . . . at two locations.” He
argued that Hurley had testified that “if she were doing this analysis on her own, through
what is called manual interpretation, that [Appellant] would have been excluded.”
Appellant asserted that these results indicated he should not have been included as
contributing to this particular sample. We note that Hurley’s testimony reflected the
following: “[I]f I would complete a manual interpretation and say that there is no drop out,
and that person’s DNA is not there, then I would call that an exclusion.” However, she
immediately went on to state that “[t]his is a continuous biological modeling software so it
is assigning a probability to everything.” In our view, this evidence, which was available
to the circuit court, demonstrated that there is a distinction in interpreting a DNA profile
developed manually by an analyst compared to interpreting an inferred genotype generated
by TrueAllele software. It does not reflect an improper application of methodology by
Hurley.
23
pristine, or which represent mixes of DNA from multiple contributors. This process will
necessarily involve the generation of results which in some cases do not align with a
specific possible contributor; this does not preclude TrueAllele from generating a
probability that a given derived genotype matches to the genotype found in a control
sample from that contributor. As Hurley testified:
TrueAllele will have a list of possible inferred genotypes that it has already
assigned the probability to each genotype. When it then makes the
comparison to the standard, if that person’s genotype is present, it will use
that probability in the calculation. If it hasn’t assigned it a probability, it will
assign it an exclusionary probability for that location.
Thus, when TrueAllele generated results incompatible with Appellant’s DNA profile, the
program did not ignore those results, but instead integrated the data into its final match
calculation, adjusting the match probability downward. Therefore, contrary to Appellant’s
contention that TrueAllele “should have excluded” him due to the software detecting a
probable allele inconsistent with Appellant’s DNA profile, the program used that data to
inform its probability calculations. 15
The Supreme Court of Maryland has instructed that “the inquiry into admissibility
of evidence under Rule [5-702] is ‘a flexible one,’ and its focus ‘must be solely on
principles and methodology, not on the conclusions that they generate.’” Matthews, 479
Md. at 307 (quoting Daubert, 509 U.S. at 594–95). Here, Appellant is correct that the
record contains evidence that some of the data that TrueAllele generated did not comport
15
We note that despite TrueAllele’s downward adjustments, a match between Appellant
and the inferred genotype was still at minimum more than 1.5 million times more likely
than a match between the inferred genotype and a coincidental match to an unrelated
person.
24
with Appellant’s DNA profile. However, the record also contains explanations from
Hurley about the reason TrueAllele might have produced such results, the manner in which
those results impacted the final probability analysis, and how she interpreted and validated
that final analysis.
The circuit court, after considering the testimony of both parties, undertook a
thorough analysis of the Daubert-Rochkind factors, and concluded that the TrueAllele
analysis was “based on sufficiently reliable principles and methods” and that Hurley
“properly applied” the principles and methods so that the results could be profitably applied
by a jury. Here, the court determined that based on Hurley’s explanations, the possible
discrepancies in the data were not fatal to the admissibility of the TrueAllele testimony.
We cannot conclude that “no reasonable person would take the view adopted by the circuit
court.” See Katz Abosch, 485 Md. at 361 (internal quotation marks and citations omitted).
Thus, we cannot say that the court abused its discretion on this point.
iii. Sufficiency of validation process
Appellant next asserts that the TrueAllele results were improperly admitted because
the State failed to introduce evidence that the software had been appropriately validated
for use on samples that may include artifacts or bacterial contamination. We disagree. Here,
the record shows that BPD performed an internal validation, and that this validation process
involved testing TrueAllele using samples typical of those generated by the BPD
25
laboratory, which Hurley stated typically did include artifacts. 16 Additionally, the record
evidence shows that TrueAllele had been the subject of more than 34 validation studies,
including multiple peer-reviewed studies which “use[d] DNA data exhibiting real-world
issues developed by a crime laboratory in the course of their usual casework activity.”
These studies were identified in a declaration from the co-founder of the company that
owns and licenses TrueAllele, which Appellant acknowledged was available to the circuit
court at the Daubert hearing.
Moreover, even had the record lacked such evidence, Maryland’s Daubert-
Rochkind standard does not mandate any single specific type of validation; it is rather a
“flexible inquiry into an expert’s reliability, focusing on the expert’s principles and
methodology[.]” Covel, 258 Md. App. at 329; see also Rochkind, 471 Md. at 37 (noting
that a court is granted “the same broad latitude when it decides how to determine reliability
as it enjoys in respect to its ultimate reliability determination[,]” and a court “may apply
some, all, or none of the [enumerated] factors[,]” none of which are individually
determinative) (internal citation omitted). Here, the court determined, as part of its broader
Daubert-Rochkind analysis, that BPD’s validation, which was conducted according to
nationally recognized standards, weighed in favor of TrueAllele’s reliability. This Court
does not, and indeed should not, “nitpick an expert’s opinion in order to reach a perfect
expression of what the basis and methodology can support[.]” Katz Abosch, 485 Md. at16
Hurley agreed that although TrueAllele had been validated by BPD’s internal study,
which sought to “represent what we typically see in casework from good, pristine samples
down to complex mixtures with degraded DNA[,]” she had not personally reviewed the
samples which were used in the internal validation study.
26
381 (internal quotation marks and citation omitted). Thus, we determine that the court
properly exercised its discretion on this point.
iv. The calibration of the electrophoresis machine
Appellant next asserts that the court failed to “perform its gatekeeping role” by
declining to exclude the evidence due to Appellant’s allegation that the electrophoresis
machine producing the data subjected to TrueAllele analysis was improperly calibrated.
Appellant’s argument features two aspects: first, that the inclusion of artifacts in the data
evaluated by TrueAllele indicated incorrect calibration; and second, that the BPD technical
manual requires elimination of spectral overlap through calibration of the electrophoresis
machine.
Appellant’s argument regarding artifacts in the data is premised on the testimony of
his own expert, who testified that the presence of additional allele peaks caused by artifacts
would not appear in a correctly calibrated machine. However, Appellant’s argument
ignores that the circuit court had the benefit of more than one explanation on this point—
it also had the benefit of Hurley’s testimony. The circuit court was not required to negate
Hurley’s testimony based on the competing explanation of Appellant’s expert, because
when “an expert’s scientific testimony rests upon good grounds, based on what is known,
it should be tested by the adversary process—competing expert testimony and active cross-
examination—rather than excluded from jurors’ scrutiny for fear that they will not grasp
its complexities or satisfactorily weigh its inadequacies.” Matthews, 479 Md. at 322–23
(citing Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85 (1st Cir.
1998)) (internal quotation marks and citation omitted).
27
Here, the record contained testimony from Hurley that the presence of artifacts in
the data could “potentially” make a sample uninterpretable, and a statement that some
samples contained “a lot” of pull-up artifacts. However, Hurley also stated that “[j]ust
because artifacts are present in a sample does not necessarily mean it is non-interpretable
or shouldn’t be used.” Likewise, she testified that despite the level of pull-up artifacts in a
sample, she “was able to evaluate that data still and deem that sample as an interpretable
sample for analysis.” Similarly, Hurley testified that she was “not concerned” that the
presence of artifacts in the data would invalidate the TrueAllele results for the samples she
analyzed.
Appellant also argues that BPD’s technical manual states that “spectral overlap . . .
must be eliminated for proper data analysis[,]” and therefore, Hurley’s failure to follow the
BPD’s technical manual demonstrates that she did not reliably apply the methodology. 17
As the State explained in its brief and during argument, the BPD technical manual does not
state that spectral overlap must be eliminated through calibration of the electrophoresis
machine. Rather, the level of spectral overlap requiring calibration of the electrophoresis
machine is triggered if the pull-ups reach certain thresholds, which, as Hurley explained at
trial, concern the intensity of the pull-ups rather than the number of peaks.
In addition, Hurley testified at the Daubert hearing that at the BPD, as at other
forensic labs, analysts have analytical thresholds they use to differentiate true peaks from
17
The record does not appear to contain any reference to that provision of the BPD
technical manual or its context. Nor does the technical manual itself appear to have been
introduced during the Daubert hearing.
28
“background noise.” She testified that the lab performs spectral calibration to
“minimize”—not eliminate—overlap in pull-ups and true peaks. She stated that if there
was a very high level of pull-up—for instance, if there were “large pull-up peaks
[overlapping] smaller true peaks”—that would be a cause for concern requiring spectral
calibration under the manual. She also testified that the results in this case were “all low
level” and were “consistent with what [BPD analysts] see in [their] regular casework[,]”
and therefore not at the level requiring spectral calibration outside the normal annual
maintenance.
Although Appellant is correct that an “improperly calibrated machine . . . could lead
to an inaccurate result[,]” Cole v. State, 378 Md. 42, 67 (2003), the question of whether a
technician has properly calibrated a scientific instrument so as to produce “an adequate
supply of data” is entrusted to the sound discretion of the trial court. Matthews, 479 Md. at
316–17. Similar to the contention regarding the data validation, Appellant asserts that the
court erred by not making a more explicit determination that the instrument was properly
calibrated, and in concluding that “the electrophoresis machine at issue in this case [is] not
a basis for excluding the TrueAllele evidence.” However, we note that although the quality
of data is of course related to the reliability of a conclusion, when conducting a Daubert-
Rochkind analysis, “a trial court generally should be most concerned about the reliability
of an expert’s methodology[,]” Matthews, 479 Md. at 316, and should avoid “unduly
scrutiniz[ing] the quality of the expert’s data and conclusion[] rather than the reliability of
the methodology the expert employed.” Id. (quoting Manpower, Inc. v. Ins. Co. of
Pennsylvania, 732 F.2d 796, 806 (7th Cir. 2013)).
29
Here, the trial court noted that the experts disagreed whether the machine had been
properly calibrated but found that “Hurley . . . properly applied principles and methods
required by the BPD’s lab” which made this testimony proper to submit to the jury. Thus,
the court clearly evinced its understanding of Appellant’s contention, but disagreed that it
proved fatal to the reliability of the TrueAllele results, particularly due to the record
evidence showing that Hurley was able to successfully evaluate the data despite the
presence of artifacts. Nor did the court’s observation that the topic of the machine’s
calibration might be explored in cross-examination equate to a ruling that the court either
completely discounted Appellant’s contention as part of its Daubert-Rochkind analysis or
believed that such a question was reserved for the jury alone. See Katz Abosch, 485 Md. at
378; see also Morten, 242 Md. App. at 569–71.
For the reasons articulated above, the circuit court did not abuse its discretion in
admitting the TrueAllele evidence under Md. Rule 5-702. See Rochkind, 471 Md. at 10.
JUDGMENTS OF THE CIRCUIT COURT
FOR BALTIMORE CITY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
30