State v. Rodriguez

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STATE OF CONNECTICUT v.
LUIS M. RODRIGUEZ
(SC 20372)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
Convicted, after a jury trial, of sexual assault in the first degree and criminal
attempt to commit sexual assault in the first degree, the defendant
appealed. The defendant’s conviction stemmed from an incident in which
two Hispanic men pulled a woman, who was walking on a street in
New Britain, into the backseat of their car and sexually assaulted her.
Approximately ten years after the incident, the defendant became a
person of interest based on a match between the DNA sample that had
been extracted from the victim’s sexual assault evidence kit and a sample
of the defendant’s DNA that had been placed into a database at some
point after the victim’s assault. The police interviewed the defendant,
and he denied that the incident in question occurred but consented to
the taking of a buccal swab, which the police submitted to the state
forensic laboratory for analysis. The laboratory subsequently reported
a match between the DNA from the defendant’s buccal swab and that
taken from the victim’s sexual assault evidence kit, and the police inter-
viewed the defendant again. During the second interview, the defendant
admitted that he did have a threesome after he picked up a man and a
woman near an automobile parts store. At trial, three laboratory reports
analyzing the DNA samples were introduced into evidence through the
testimony of P, a forensic science examiner with the state forensic
laboratory. The first of the three reports was produced in 2007 and
described the results of the victim’s sexual assault evidence kit. The
second and third reports were produced in 2016 and were based on
comparisons of the DNA samples from the sexual assault evidence kit
and the defendant’s buccal swab. P testified regarding the procedures
used to test the DNA evidence and the results contained in the three
reports. The third and final report analyzed the sperm-rich and epithelial-
rich fractions of the vaginal, oral and genital swabs, including a 2016
reworking of the sperm-rich fraction of the vaginal swabs, and the
defendant’s buccal swab. That report concluded that the defendant was
a potential contributor to the DNA profile from the sperm-rich fraction
of the vaginal swabs and that the expected frequency of individuals who
could be a contributor to that DNA profile was approximately 1 in
230,000 in the Hispanic population. On appeal from the judgment of
conviction, the defendant claimed, inter alia, that the trial court had
violated his right to confrontation by allowing P to testify about the
results of the DNA identification analysis without requiring testimony
from the individual who generated the DNA profiles. Held:
1. The defendant’s unpreserved claim that the trial court violated his right
to confrontation failed under State v. Golding (213 Conn. 233) because
it was unclear whether the 2016 retesting of the vaginal swab was
performed by someone other than P, and, therefore, the record was
inadequate to establish whether a violation of the defendant’s right to
confrontation occurred.
2. The defendant could not prevail on his unpreserved claim that his due
process right was violated by the introduction of DNA identification
evidence that was unreliable: the defendant failed to establish a constitu-
tional violation under Golding because the jury was presented with
evidence that there was a genetic profile match and the statistical rarity
of the match, P explained the statistical method she used to determine
the rarity of the match, and defense counsel had the opportunity to
cross-examine P, present his own statistical evidence, or request a jury
instruction; moreover, this court declined the defendant’s invitation to
exercise its supervisory authority to require trial courts to instruct juries
on the meaning of random match probability when DNA evidence is
the only evidence identifying the defendant as the perpetrator.
3. There was no merit to the defendant’s claim that a random match probabil-
ity of 1 in 230,000 in the Hispanic population, by itself, was insufficient
to prove that he was guilty beyond a reasonable doubt; the evidence
establishing the identity of the defendant was not based on DNA evidence
alone, as the video recordings of the defendant’s two interviews with the
police, which were played for the jury and which included inconsistent
statements that indicated the defendant’s consciousness of guilt, pro-
vided additional evidence to establish the defendant’s guilt beyond a
reasonable doubt.
(One justice concurring separately)
Argued December 19, 2019—officially released September 24, 2020**
Procedural History
Substitute information charging the defendant with
two counts of the crime of sexual assault in the first
degree and one count of criminal attempt to commit
sexual assault in the first degree, brought to the Supe-
rior Court in the judicial district of New Britain and
tried to the jury before Dewey, J.; verdict and judgment
of guilty, from which the defendant appealed. Affirmed.
Mark Rademacher, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Brian W. Preleski, state’s
attorney, and Brett J. Salafia, senior assistant state’s
attorney, for the appellee (state).
Opinion
McDONALD, J. The defendant, Luis M. Rodriguez,
appeals from the judgment of conviction, rendered after
a jury trial, of two counts of sexual assault in the first
degree and one count of criminal attempt to commit
sexual assault in the first degree. The defendant claims
that (1) the trial court violated his right to confrontation,
as articulated in Crawford v. Washington, 541 U.S. 36,
124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), by allowing
a laboratory analyst to testify about the results of a
DNA identification analysis without requiring testimony
from the individual who generated the DNA profiles, (2)
his due process right was violated by the introduction of
DNA identification evidence that was unreliable under
Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53
L. Ed. 2d 140 (1977), because of the danger that the jury
would not understand the meaning of random match
probability, and (3) the evidence is insufficient to sus-
tain his conviction. We disagree and, accordingly, affirm
the judgment of the trial court.
The record reveals the following facts, which the jury
reasonably could have found, and procedural history.
In the early morning, the victim1 was walking from her
residence on Martin Luther King Drive in New Britain to
a nearby convenience store. Near Lafayette and Beaver
Streets, a gold, four door sedan with two male occu-
pants stopped and asked the victim if she knew where
they could buy cocaine. The victim told the men that
she did not know, and they drove away. Less than five
minutes later, the men returned, and one of them pulled
the victim into the backseat with him. After driving for
between ten and fifteen minutes, the vehicle stopped
at an abandoned housing complex. The driver got into
the backseat, and the victim sat between the two men.
The victim testified that both men were Hispanic, one
man ‘‘was kind of thin and the other one was kind of
heavy,’’ and both spoke Spanish to each other during
the attack.
After the men removed, or had the victim remove,
her clothing, ‘‘[t]hey started putting their fingers . . .
[i]nto [her] vagina’’ against her will. The thin man
engaged in forcible penile-vaginal intercourse with the
victim, made her perform oral sex on him, and ‘‘was
pretty much done with [her] within probably about five
minutes . . . .’’ The heavier man could not maintain
an erection, and he forced the victim to perform oral sex
and forcibly digitally penetrated her vagina. Thereafter,
the heavier man pulled the victim out of the car by her
hair and ejaculated while ‘‘rubbing his penis up against
the inside of [the victim’s] thigh.’’
After the assault, the two men drove away, and the
victim ‘‘walked quite a ways’’ and came upon a house.
The occupant of the house, Juanita Isaacs, testified that
the victim banged on her door and asked Isaacs for
help, telling her that she had been raped. Isaacs called
the police, Officer Alan Vincent Raynis, Jr., of the New
Britain Police Department responded, and the victim
told him what happened. Raynis took the victim back
to the scene of the crime, where he took several photo-
graphs and seized a pair of jeans, a sports brassiere,
and panties.
The victim was transported to New Britain General
Hospital, where she was examined, and a sexual assault
evidence kit was processed. The examining nurse
swabbed the victim’s vaginal and oral cavities, the exte-
rior surface of her genitalia, and her inner thigh to
collect any biological material that could be used to
identify the perpetrators. Raynis collected the kit and
submitted it to the state forensic laboratory for analysis.
Thereafter, the victim provided the police with a sworn,
written statement regarding the incident.
The laboratory staff found sperm in the vaginal smear
and genital swabs. The staff did not find sperm on the
oral sample, but other tests revealed the presence of
human seminal fluid protein. The laboratory staff
extracted DNA from the evidentiary materials and
searched it against DNA contained in the Combined
DNA Index System (CODIS).2 No matching profiles
were found.
Approximately ten years later, the defendant became
a person of interest in the sexual assault based on a
CODIS match between the evidentiary DNA sample that
had been extracted from the victim’s sexual assault
evidence kit and a sample of the defendant’s DNA that
had been placed into CODIS at some point after the
victim’s assault. In August, 2016, a detective from the
New Britain Police Department interviewed the defen-
dant. The detective informed the defendant that he was
a suspect in a sexual assault involving two men and
a woman. The defendant denied having had sex in a
threesome, which he described as disgusting, and said
he did not allow women in his car. The defendant also
described to the police vehicles that he previously
owned, which did not include a gold, four door sedan,
and informed the police that he currently did not have
any car registered in his name. The defendant then
consented to the taking of a buccal swab, which the
police submitted to the laboratory for analysis.
Several months later, the laboratory reported a match
between the DNA from the defendant’s buccal swab
and that taken from the victim’s sexual assault evidence
kit. In December, 2016, the police again spoke with the
defendant. The detective informed the defendant that
his DNA was found in the vaginal sample from the
victim. Contrary to his previous statement to the police,
the defendant admitted that he did have a threesome
on two occasions in hotels in Plainville and on the
Berlin Turnpike. He stated that one incident involved
a ‘‘skinny, Puerto Rican’’ girl and occurred when he
picked up a man and a woman near an AutoZone store
and dropped them off at a store on Broad Street in New
Britain. The detective also informed the defendant that,
in addition to the assault, the victim complained of
being robbed of several hundred dollars, and the defen-
dant replied with words to the effect of: ‘‘That’s not
me. It’s the other guy.’’
The defendant was arrested and charged in the opera-
tive information with two counts of sexual assault in
the first degree and one count of criminal attempt to
commit sexual assault in the first degree. The trial com-
menced in March, 2018. At trial, three laboratory reports
analyzing the DNA samples were introduced into evi-
dence through the testimony of Angela Przech, a foren-
sic science examiner with the laboratory, whose testi-
mony and related evidence are the subject of the
defendant’s confrontation and due process claims.
First, the state introduced a laboratory report dated
November 26, 2007, that describes the results of the
sexual assault evidence kit. The report indicates that
the laboratory tested the vaginal, oral, and genital
swabs, and it states that the material on the swabs was
divided into sperm-rich and epithelial-rich fractions, all
of which yielded DNA.3 The report further states that
item number 1E, the oral swabs, and item number 1I,
the genital swabs, ‘‘were consumed in testing,’’ and that
the balance of item number 1C, the vaginal swabs, ‘‘was
retained in the laboratory.’’ The report notes that the
extracted DNA profiles of item numbers 1I and 1C were
entered into CODIS for comparison and no matches
were reported at the time the report was issued. The
report was signed by Przech and Melanie G. Ktorides,
a forensic science examiner.
Second, over the state’s relevance objection, the
defendant introduced into evidence an unofficial labo-
ratory report dated September 12, 2016, which was
marked ‘‘DNR’’ for ‘‘do not report’’ and was never offi-
cially released. It indicates that the laboratory tested
the sperm-rich and epithelial-rich fractions of the vagi-
nal, oral and genital swabs, as well as the defendant’s
2016 buccal swab. The unofficial report concluded that
the defendant ‘‘is included as a potential contributor to
the DNA profile’’ from the sperm-rich fraction of the
vaginal swabs. It states that the ‘‘expected frequency
of individuals who could be a contributor to the DNA
profile . . . from [the sperm-rich fraction of the vagi-
nal swabs] is . . . approximately 1 in 4.9 in the His-
panic population.’’4 The report was signed by Przech,
as the analyst, and a technical reviewer.
Finally, the state introduced a laboratory report dated
December 16, 2016. Similar to the September, 2016
report, the December report analyzed the sperm-rich
and epithelial-rich fractions of the vaginal, oral and
genital swabs, as well as the defendant’s 2016 buccal
swab. It also added three new items of evidence to the
list, including ‘‘[item number] 1C [v]aginal [s]wabs,’’
and noted that this item had been separated into sperm-
rich and epithelial-rich fractions. The report concluded
that the sperm-rich fraction of the vaginal swabs was
a mixture, and the defendant ‘‘is included as a potential
contributor to the DNA profile . . . .’’ Unlike the Sep-
tember, 2016 report, however, the December, 2016
report concluded that the ‘‘expected frequency of indi-
viduals who could be a contributor to the DNA profile
. . . from [the sperm-rich fraction of the vaginal swabs]
is . . . approximately 1 in 230,000 in the Hispanic pop-
ulation.’’5 The report was again signed by Przech, as
the analyst, and a technical reviewer.
At trial, Przech testified regarding the procedures
used to test the DNA evidence and the results contained
in her three reports. Specifically, she testified that, in
2007, the laboratory used a DNA testing kit called Iden-
tifiler to develop the DNA profiles from the sexual
assault evidence kit and produced the November, 2007
report. She explained that the laboratory had success-
fully separated sperm cells from epithelial cells in the
various evidentiary samples.
Przech further testified that, in 2016, the New Britain
Police Department submitted a known buccal swab of
a suspect in the case to the laboratory for comparison
with the evidentiary DNA that had been extracted in
2007. She explained that, rather than having an analyst
physically process the defendant’s buccal swab, the
laboratory processed it via ‘‘an automated procedure’’
in which ‘‘a robot’’ extracts and processes DNA from
the known buccal sample. Przech compared the defen-
dant’s DNA profile to the profiles that had been
extracted from the evidentiary swabs in 2007 and con-
cluded that the defendant was a ‘‘potential contributor’’
to the DNA mixture that had been extracted from the
sperm-rich fraction of the vaginal swabs.
Przech testified that the December, 2016 report set
forth her conclusions regarding the comparison of the
defendant’s buccal swab and the DNA taken from the
sexual assault evidence kit. She explained that, prior to
the creation of the December, 2016 report, her technical
leader requested that ‘‘additional work be done with
the sample in order to make sure that there was a fully
developed profile, and it was to the standard that was
required in 2016 and not the standard that was required
in [2007].’’ Przech clarified that the unofficial report
from September, 2016, ‘‘is not an official report gener-
ated. [These are] case notes within [her] case jacket
that are clearly marked DNR, which is do not report.
. . . No, [this is not an official report]; this is not a
report at all. It never went out. It never went to the
. . . [New Britain Police Department]. So, it’s consid-
ered case notes within [her] case jacket.’’
On redirect examination, Przech further explained
that the sperm-rich fraction of the vaginal swabs was
‘‘rework[ed]’’ in 2016 to comply with contemporary
interpretations of the rules relating to statistical analy-
ses. Przech explained that she ‘‘chose not to issue [the
unofficial, September, 2016] report because the infor-
mation that was there was not complete according to
our rules for 2016 statistic[al] [data] generation,’’ which
required taking into account ‘‘many different parts of
the profile that we didn’t have to consider in 2007.’’
Because there was not a complete profile, the unofficial,
September, 2016 report did not give ‘‘the whole story,’’
and Przech’s technical leader requested that the sperm-
rich vaginal swab be ‘‘amplified more and [Przech] can
develop a different profile and get better results. [The]
sample that [Przech] had in 2007 wasn’t complete.’’
Przech reworked the sample using a new kit, called
Identifiler Plus, which was more sensitive than the ear-
lier kit to degraded DNA and also to inhibitors, such
as bacteria, that could be found in a sample. Finally,
she explained that ‘‘the [September, 2016] report that
was DNR, that never went out, that sample for [item
number] 1CB [the sperm-rich fraction of the vaginal
swabs] was a different profile than the one that was
issued [i]n [the December, 2016 report] . . . . So, they
are two different profiles.’’
Following the trial, the jury found the defendant
guilty on all counts. The defendant was sentenced to a
total effective sentence of thirty years incarceration.
He appealed from the judgment of conviction to the
Appellate Court, and the appeal was transferred to this
court. Additional facts will be set forth as necessary.
I
We first consider the defendant’s claim that the trial
court violated his right to confrontation, as articulated
in Crawford v. Washington, supra, 541 U.S. 36, by
allowing Przech to testify about the results of the DNA
identification analysis without requiring testimony from
the individual who generated the DNA profiles. Specifi-
cally, the defendant contends that, during questioning
about the disparate statistical results presented in the
two 2016 reports, Przech testified that she did not con-
duct the testing underlying those reports. Rather, the
defendant argues, Przech used the unnamed analyst’s
data to deduce the characteristics and sources of the
DNA profiles. The defendant concedes that he did not
preserve this claim properly at trial and seeks review
under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015).6 The state contends that
the record is inadequate to establish factually whether
a confrontation right violation occurred. We agree with
the state.7
At the outset, we note that the defendant’s claim is not
based on any of the 2007 testing because, as the defen-
dant acknowledges, ‘‘Przech did not use the testing in
2007 of the . . . vaginal sample to identify the defendant
as the assailant.’’ It also is not based on the admission
of the evidence of the DNA profile generated from the
defendant’s buccal swab in 2016, which was extracted
in the automated process that Przech described.8 Finally,
the defendant makes no claim that his confrontation
right was violated by his own admission of the unoffi-
cial, September, 2016 report into evidence. Rather, the
defendant asserts that it is the admission of the DNA
identification evidence contained in the December, 2016
report and Przech’s corresponding testimony that vio-
lated his confrontation right because someone other
than Przech performed the 2016 retesting of the vaginal
sample.
Because the defendant seeks Golding review of this
unpreserved claim, we begin by determining whether
this claim is reviewable. ‘‘The first two [prongs of Gold-
ing] involve a determination of whether the claim is
reviewable . . . .’’ (Internal quotation marks omitted.)
State v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004),
cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d
110 (2005). Under the first prong of Golding, for the
record to be adequate for review, the record must con-
tain sufficient facts to establish that a violation of con-
stitutional magnitude has occurred. See, e.g., State v.
Brunetti, 279 Conn. 39, 55–56, 901 A.2d 1 (2006), cert.
denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85(2007). ‘‘[W]e will not attempt to supplement or recon-
struct the record, or to make factual determinations, in
order to decide the defendant’s claim.’’ State v. Golding,
supra, 213 Conn. 240. As a result, ‘‘we will not address
an unpreserved constitutional claim [i]f the facts
revealed by the record are insufficient, unclear or
ambiguous as to whether a constitutional violation has
occurred . . . .’’ (Internal quotation marks omitted.)
State v. Canales, 281 Conn. 572, 581, 916 A.2d 767 (2007).
Here, the record is inadequate to establish that the
defendant’s confrontation right was violated because it
is unclear whether the 2016 retesting of the vaginal
swab was performed by someone other than Przech.9
The following testimony suggests that Przech per-
formed the testing herself. On cross-examination,
defense counsel twice asked Przech whether ‘‘you con-
ducted’’ additional testing of the vaginal sample in 2016.
(Emphasis added.) Przech responded ‘‘[y]es’’ both
times.10 On redirect examination, after Przech testified
about ‘‘rework[ing] the sample’’ in 2016, the prosecutor
asked: ‘‘[I]s that what you did in this case?’’ (Emphasis
added.) Przech replied: ‘‘Yes, [item number] 1CB [vagi-
nal sample].’’ Thereafter, Przech testified that, following
the unofficial, September, 2016 report, her technical
leader told her that the vaginal sample ‘‘can be amplified
more and [that she could] develop a different profile
and get better results.’’ The prosecutor then asked:
‘‘[W]ere you able to amplify the sample?’’ (Emphasis
added.) Przech responded: ‘‘I was able to redo the sam-
ple using a new kit that we used.’’ (Emphasis added.)
Przech further testified that the December, 2016 report
was based on this ‘‘redo’’ of the sample, which resulted
in a different DNA profile than the one on which the
unofficial, September, 2016 report was based. Defense
counsel did not conduct a recross-examination of
Przech.
But Przech also testified on cross-examination, with-
out referencing a specific test, that ‘‘I was the analyst
who analyzed the data. I didn’t develop the profiles or
do the lab work.’’ In light of this inconsistent testimony,
it is, at best, unclear whether someone other than
Przech retested the vaginal samples in 2016, and any
conclusion we could attempt to draw as to who retested
the vaginal samples would be purely speculative. As
we have explained, ‘‘[i]t is incumbent upon the [defen-
dant] to take the necessary steps to sustain [his] burden
of providing an adequate record for appellate review.
. . . Our role is not to guess at possibilities . . . but
to review claims based on a complete factual record
developed by a trial court. . . . Without the necessary
factual and legal conclusions furnished by the trial court
. . . any decision made by us respecting [the defen-
dant’s claims] would be entirely speculative.’’ (Internal
quotation marks omitted.) State v. Brunetti, supra, 279
Conn. 63. Because it is the function of the trial court,
not this court, to make factual findings; see, e.g., State
v. Satchwell, 244 Conn. 547, 562, 710 A.2d 1348 (1998);
the defendant was required to clarify the record as
to whether someone other than Przech conducted the
retesting in 2016. Because the facts revealed by the
record are inadequate to establish whether the alleged
constitutional violation did, in fact, occur, we conclude
that the defendant’s claim fails under the first prong of
Golding, and, thus, we decline to review it.
II
We next turn to the defendant’s contention that his
due process right was violated by the introduction of
DNA identification evidence that was unreliable under
Manson v. Brathwaite, supra, 432 U.S. 98, because of
the danger that the jury would assume that a random
match probability is the likelihood that the defendant
is not the source of the DNA in the vaginal sample.11
The defendant again seeks review of this unpreserved
claim under State v. Golding, supra, 213 Conn. 239–40.12
See footnote 6 of this opinion. We conclude that the
defendant’s claim fails under the third prong of Golding
because he has not established a constitutional viola-
tion.
To understand the defendant’s claim, we begin with
background principles of DNA evidence. DNA evidence
consists of two elements: (1) a determination that the
defendant’s genetic profile matches a genetic profile
present in the evidentiary sample, and (2) a statistical
calculation of the rarity of that match. See, e.g., State
v. Sivri, 231 Conn. 115, 155, 646 A.2d 169 (1994)
(explaining that calculation of rarity of match ‘‘gener-
ates a ratio which accompanies a match in order to
express the statistical likelihood that an unrelated indi-
vidual chosen at random from a particular population
could have the same DNA profile as the suspect’’ (inter-
nal quotation marks omitted)). This is because a match
means little without statistical evidence that will allow
the fact finder to determine the strength of the match
and, thus, the strength of the inferential fact that the
defendant is the person whose DNA is present in the
actual evidentiary sample. See id., 155–56. Three types
of statistical methods, relevant to the defendant’s claim,
are used to express the rarity of the match: random
match probability, combined probability of inclusion,
and source probability. Each method describes the rar-
ity of the match in a different way. The random match
probability is the probability that the defendant’s DNA
profile would match the DNA profile of an unrelated
member of the general population who is chosen at
random. See id., 155; see also State v. Small, 180 Conn.
App. 674, 685, 184 A.3d 816, cert. denied, 328 Conn.
938, 184 A.3d 268 (2018). The combined probability of
inclusion is employed when there is a mixed DNA pro-
file, which indicates the presence of genetic material
from two or more contributors. See Roberts v. United
States, 916 A.2d 922, 927 (D.C. 2007). This method
‘‘takes all of the observed data and considers all possible
profiles that could produce that data. Then, it generates
a statistic, which expresses the probability that a ran-
dom person would have any of those generated pro-
files.’’ B. Stiffelman, ‘‘No Longer the Gold Standard:
Probabilistic Genotyping Is Changing the Nature of
DNA Evidence in Criminal Trials,’’ 24 Berkeley J. Crim.
L. 110, 128 (2019). ‘‘Source probability is the probability
that someone other than the defendant is the source of
the DNA found at the crime scene.’’ (Internal quotation
marks omitted.) State v. Small, supra, 685. Neither the
random match probability nor the combined probability
of inclusion is a statement of source probability. To
conflate either type with source probability is to ascribe
a greater degree of certainty that the evidentiary sample
contains the defendant’s DNA than is warranted based
on a proper understanding of the random match proba-
bility or the combined probability of inclusion.13
Here, the defendant contends that, unless the prose-
cutor properly explained the DNA evidence to the jury,
the jury ‘‘would likely believe that a random match
probability of 1 in 230,000 is the likelihood that the
defendant is not the source of the DNA in the vaginal
sample.’’ (Emphasis omitted.) The defendant notes that
the prosecutor asked Przech only one question about
the statistical probability of the match, and, on cross-
examination, Przech only briefly discussed her proba-
bility statement. The defendant contends that, because
random match probability was never explained to the
jury, and given the likelihood that jurors would misun-
derstand the DNA identification evidence, the evidence
was unreliable and introduced in violation of the due
process clause under Manson v. Brathwaite, supra, 432
U.S. 98. In short, the defendant contends that the jurors
likely would have misunderstood Przech’s testimony
regarding the combined probability of inclusion as indi-
cating source probability rather than random match
probability.
The state claims that the defendant is not entitled to
Golding review of this unpreserved claim because it is
evidentiary given that (1) the statistical ‘‘evidence, on
its face, is neither fundamentally unfair nor materially
misleading,’’ (2) ‘‘the record offers no suggestion that
the jurors were potentially confused about the evi-
dence,’’ and (3) ‘‘the defendant makes no claim that
the prosecutor mischaracterized or misused the . . .
evidence in his closing remarks to the jury.’’ Alterna-
tively, the state claims that the defendant’s claim fails
the third prong of Golding because nothing in the record
improperly described random match probability.
Assuming the defendant’s claim asserts a constitu-
tional violation and not merely an evidentiary issue, we
conclude that the defendant has failed to establish a
constitutional violation, and, accordingly, his claim fails
under the third prong of Golding. Contrary to the defen-
dant’s assertions, the December, 2016 report and
Przech’s corresponding testimony were not unreliable
because the jury was presented with evidence that there
was a match and the statistical rarity of the match. See
State v. Sivri, supra, 231 Conn. 156 (‘‘because a match
between two DNA bands means little without data on
probabilities, the calculation of statistical probabilities
is an integral part of the process [of DNA matching]’’
(internal quotation marks omitted)). Przech also
explained that she used the combined probability of
inclusion to determine the rarity of the match between
the defendant’s buccal swab and the evidentiary sam-
ple, and nothing in the record improperly equates ran-
dom match probability with source probability.
On direct examination, the prosecutor asked Przech
to explain the significance of the frequency numbers
contained in her December, 2016 report. Przech testi-
fied that she employed the combined probability of
inclusion. She properly explained that the combined
probability of inclusion is a mathematical calculation
representing ‘‘the statistical frequency for anyone that
would be included in that profile . . . .’’ (Emphasis
added.) She emphasized that the statistical frequency
was ‘‘not just for [the defendant], but for someone else
[who] could have a different combination of numbers
that could also be included in that profile.’’
Przech further noted that the DNA that had been
extracted from the sperm-rich fraction of the vaginal
swabs was a mixture containing DNA of three or more
persons. She explained that the laboratory cannot deter-
mine when or how recovered DNA is deposited in the
place that it is found, and the laboratory does not make
DNA derived ‘‘identity statements’’ regarding samples.
Rather, forensic science examiners compare ‘‘the
known profile of whoever it is to the sample’’ and ‘‘come
up with a conclusion, and then have a statistic that is
driven by the [evidentiary] sample, and not by the
known [sample].’’ Przech agreed with defense counsel
that she could say only ‘‘that [the defendant] is a poten-
tial contributor and that, as of [December 16, 2016], it
was 1 in 230,000 in the Hispanic population as potential
contributors.’’ Przech did not suggest that the combined
probability of inclusion is a statement of source proba-
bility.
The parties’ closing arguments only indirectly
addressed Przech’s probability statistics and could not
reasonably be viewed as confusing or misleading the
jury as to the meaning of the combined probability
of inclusion or random match probability. During the
state’s closing argument, the prosecutor emphasized to
the jurors that Przech’s testimony regarding the DNA
evidence was just one piece of a puzzle and that ‘‘[p]ut-
ting these puzzle pieces together and deciding whether
. . . there’s a picture . . . [is] your job, and the judge
is going to instruct you on it.’’ Defense counsel
reminded the jurors that the laboratory does not make
identity statements regarding who is or is not guilty of
a crime. Defense counsel also drew the jury’s attention
to the statistical discrepancies between the September,
2016 and December, 2016 reports.
There is no indication in the record that the jury
misunderstood the meaning of the combined probabil-
ity of inclusion or random match probability. Cf. State
v. Pappas, 256 Conn. 854, 887, 776 A.2d 1091 (2001)
(during jury deliberations, jury sent note asking
whether DNA from certain evidence was ‘‘a match to the
[defendant’s] known DNA sample’’ (internal quotation
marks omitted)). If the defendant nonetheless believed
that the DNA evidence was unreliable, misleading or
required a more detailed explanation, he had the oppor-
tunity to object to the testimony, cross-examine Przech,
present his own expert or other contradictory evidence,
and request a jury instruction. See, e.g., id., 889 (‘‘a
defendant may offer an opposing expert or, as the defen-
dant here did, use cross-examination to critique the
analysis and interpretation of mtDNA evidence’’); State
v. Haughey, 124 Conn. App. 58, 75, 3 A.3d 980 (‘‘incon-
clusive characteristics of the [combined probability of
inclusion] method’s results were the proper subject for
cross-examination’’), cert. denied, 299 Conn. 912, 10
A.3d 529 (2010); State v. Lindsey, Docket No. 02C01-
9804-CR-00110, 1999 WL 1095679, *12 (Tenn. Crim. App.
October 28, 1999) (‘‘the defense ably challenged the
state’s DNA proof through intense, probing cross-exam-
ination of the state’s expert and presentation of its own
expert proof’’); cf. Daubert v. Merrell Dow Pharmaceu-
ticals, Inc., 509 U.S. 579, 596, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993) (‘‘[v]igorous cross-examination, pre-
sentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appro-
priate means of attacking shaky but admissible evi-
dence’’). Throughout defense counsel’s extensive cross-
examination of Przech, defense counsel never sought
to elicit any additional information regarding the com-
bined probability of inclusion; nor did he present his
own statistical evidence or request a jury instruction.
The defendant also contends that, without guidance,
the jury was likely to overvalue the DNA evidence and
ignore the other types of evidence pointing toward or
away from his guilt. One way to address that concern
is an instruction to the jury on the need to consider all
of the evidence in a case. See, e.g., State v. Pappas,
supra, 256 Conn. 889. Here, despite the fact that the
defendant did not request an instruction addressing the
DNA evidence, the trial court did instruct the jurors
that, ‘‘[i]n deciding what the facts are, you must consider
all the evidence.’’ The court also instructed the jurors
that expert testimony is presented to assist them but
that ‘‘[n]o such testimony is binding [on] you, and you
may disregard the testimony either in whole or in part.
It is for you to consider the testimony with the other
circumstances in the case and, using your best judg-
ment, determine whether you will give any weight to
it . . . .’’ Finally, the court reminded the jurors that
the defendant denies he is the person involved in the
assault and instructed them that they ‘‘must be satisfied
beyond a reasonable doubt of the identity of the defen-
dant as the one who committed the crime . . . .’’ In
the absence of evidence to the contrary, we presume
that the jury followed the court’s instructions. See, e.g.,
State v. O’Neil, 261 Conn. 49, 82, 801 A.2d 730 (2002).
Given that Przech properly explained the statistical
method she used to determine the rarity of the match,
and defense counsel had the opportunity to cross-exam-
ine her, present his own statistical evidence, or request
a jury instruction on this point, we conclude that the
defendant has failed to establish a constitutional viola-
tion, and, as such, his claim fails under the third prong
of Golding.
The defendant also asks us to exercise our supervi-
sory authority to require trial courts to instruct the jury
on the meaning of random match probability when DNA
evidence is the only evidence identifying the defendant
as the perpetrator. In response, the state contends that,
‘‘[a]ssuming that this is a claim for relief, as opposed
to a suggestion, it is . . . inadequately briefed,’’ and,
alternatively, ‘‘this request should be denied because
. . . DNA was not the only evidence of guilt in this
case.’’
‘‘Although [a]ppellate courts possess an inherent
supervisory authority over the administration of justice
. . . [that] authority . . . is not a form of free-floating
justice, untethered to legal principle. . . . Our supervi-
sory powers are not a last bastion of hope for every
untenable appeal. They are an extraordinary remedy
to be invoked only when circumstances are such that
the issue at hand, [although] not rising to the level
of a constitutional violation, is nonetheless of utmost
seriousness, not only for the integrity of a particular
trial but also for the perceived fairness of the judicial
system as a whole. . . . Constitutional, statutory and
procedural limitations are generally adequate to protect
the rights of the defendant and the integrity of the
judicial system. Our supervisory powers are invoked
only in the rare circumstance [when] these traditional
protections are inadequate to ensure the fair and just
administration of the courts.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Wade, 297
Conn. 262, 296, 998 A.2d 1114 (2010).
We decline the defendant’s invitation to exercise our
supervisory powers in the present case. First, the defen-
dant seeks to require an instruction on random match
probability, but, in this case, Przech relied on the com-
bined probability of inclusion as her statistical method
to determine the rarity of the match. Although the com-
bined probability of inclusion and random match proba-
bility produce similar statistical metrics, given that ran-
dom match probability is employed for single source
DNA profiles and the combined probability of inclusion
is employed for mixed DNA profiles, a jury instruction
on random match probability would not have fully
explained the statistical method Przech employed in
this case. Second, there is no indication that the jury
misunderstood Przech’s description of the statistical
method that she used to determine the rarity of the
DNA match. Third, as we discuss in part III of this
opinion, contrary to the defendant’s suggestion, the
DNA evidence in this case is not the only evidence
identifying the defendant as the perpetrator. Finally, the
defendant also fails to explain why this extraordinary
remedy is required and how this issue impacts, not
only the integrity of this particular trial, but also the
perceived fairness of the judicial system as a whole.
See, e.g., State v. Elson, 311 Conn. 726, 768, 91 A.3d 862(2014) (‘‘a defendant seeking review of an unpreserved
claim under our supervisory authority must demon-
strate that his claim is one that, as a matter of policy,
is relevant to the perceived fairness of the judicial sys-
tem as a whole, most typically in that it lends itself to
the adoption of a procedural rule that will guide the
lower courts in the administration of justice in all
aspects of the criminal process’’ (internal quotation
marks omitted)). Accordingly, we decline to invoke our
supervisory authority at this time to require trial courts
to instruct the jury on the meaning of random match
probability.14
III
Finally, we consider the defendant’s contention that
a random match probability of 1 in 230,000, by itself,
is insufficient to prove that he is guilty beyond a reason-
able doubt. Specifically, the defendant contends that a
random match probability of 1 in 230,000 in the Hispanic
population means that there are about ninety Hispanic
males over the age of fifteen in the United States who
could have contributed a DNA profile to the vaginal
sample.15 The state contends that this ‘‘claim is meritless
because the evidence establishing the defendant’s iden-
tity was not based on the DNA evidence alone.’’ Rather,
the state contends, ‘‘the recordings of the defendant’s
two interviews with the police provided sufficient addi-
tional evidence to establish his guilt beyond a reason-
able doubt.’’ We agree with the state.
The defendant concedes that, although he moved for
a judgment of acquittal, he did not raise this argument
before the trial court. This court, however, ‘‘review[s]
an unpreserved sufficiency of the evidence claim as
though it had been preserved.’’ (Internal quotation
marks omitted.) State v. Josephs, 328 Conn. 21, 35 n.11,
176 A.3d 542 (2018).
In evaluating a claim of evidentiary insufficiency, we
‘‘review the evidence and construe it as favorably as
possible with a view toward sustaining the conviction,
and then . . . determine whether, in light of the evi-
dence, the trier of fact could reasonably have reached
the conclusion it did reach.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Jordan, 314
Conn. 354, 385, 102 A.3d 1 (2014). A trier of fact is
permitted to make reasonable conclusions by ‘‘draw-
[ing] whatever inferences from the evidence or facts
established by the evidence it deems to be reasonable
and logical. . . . [These inferences, however] cannot
be based on possibilities, surmise or conjecture.’’ (Inter-
nal quotation marks omitted.) Id.In the present case, the evidence establishing the
identity of the defendant was not based on the DNA
evidence alone. In particular, the video recordings of
the defendant’s two interviews with the police, which
were played for the jury, provided additional evidence
from which the jury could have concluded that the
defendant was one of the perpetrators. The August,
2016 interview established that the defendant was a
resident of New Britain at the time of the assault. The
video of both the August and December, 2016 interviews
also established that, consistent with the victim’s
description of the perpetrators, the defendant is His-
panic, heavyset, and speaks English.16
Jurors also reasonably could have concluded that
several of the defendant’s statements to the police dur-
ing the interviews were inconsistent or partial truths
influenced by his participation in the crime and evi-
dence of his consciousness of guilt. For example, after
denying ever having had a threesome during the first
interview, during the second interview, the defendant
admitted that he had engaged in threesomes on two
occasions. When the detective asked him during the
second interview what happened the day the victim
reported being assaulted, the defendant abandoned his
lack of recollection and offered an account of picking
up a man and a woman in his car near an AutoZone in
New Britain and engaging in a threesome. The defen-
dant later explained that he could not remember when
that occurred or whether it was the same incident the
detective was referencing. The defendant’s mention of
an AutoZone was significant, however, because the jury
was presented with evidence that an AutoZone was
located in the vicinity of where the victim reported
being abducted. Finally, when the detective informed
him that, in addition to the assault, the victim stated
that she had been robbed of several hundred dollars,
the defendant replied with words to the effect of:
‘‘That’s not me. It’s the other guy.’’ The defendant con-
cedes that his inconsistent statements to the police
‘‘might be construed as consciousness of guilt evi-
dence . . . .’’
We have ‘‘repeatedly held that a jury may infer guilt
based on consciousness of guilt evidence in conjunction
with other evidence . . . .’’ State v. Davis, 324 Conn.
782, 797 n.8, 155 A.3d 221 (2017); see also State v.
Morelli, 293 Conn. 147, 154, 976 A.2d 678 (2009) (evi-
dence of consciousness of guilt, along with other evi-
dence, provided sufficient evidence to prove that defen-
dant was under influence of intoxicating liquor, which is
essential element of offense of operating motor vehicle
while under influence of intoxicating liquor); State v.
Groomes, 232 Conn. 455, 473–74, 656 A.2d 646 (1995)
(holding that trial court properly instructed jury that it
may use defendant’s flight as evidence of consciousness
of guilt and as independent, circumstantial evidence of
defendant’s guilt). Here, that other evidence was the
DNA evidence.
Construing the evidence as favorably as possible to
sustaining the guilty verdict, we conclude that the
state’s case did not rest on the DNA evidence alone
and that the circumstantial evidence, combined with
the DNA evidence, was sufficient for the jury to find
beyond a reasonable doubt that the defendant was one
of the perpetrators of the sexual assault. See, e.g., State
v. Young, 157 Conn. App. 544, 558–59, 117 A.3d 944(rejecting defendant’s contention that evidence was
insufficient to support conviction based only on DNA
evidence because state’s case did not rest on DNA evi-
dence alone), cert. denied, 317 Conn. 922, 118 A.3d
549 (2015).
The judgment is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** September 24, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
2
CODIS contains DNA profiles from unsolved crimes and compares them
to known samples from convicted felons that are periodically added to the
database. See, e.g., State v. Webb, 128 Conn. App. 846, 852–53 n.3, 19 A.3d
678, cert. denied, 303 Conn. 907, 32 A.3d 961 (2011).
3
Because it is preferable to analyze a profile of the semen sample alone,
Przech explained that, before the DNA is separated from the samples, the
epithelial—or skin—cells are separated from the sperm cells.
4
The unofficial report also concludes that the expected frequency of
individuals who could be a contributor to the DNA profile from the sperm-
rich fraction of the vaginal swabs is ‘‘approximately 1 in 4.9 in the [African-
American] population’’ and ‘‘approximately 1 in 3.3 in the Caucasian popula-
tion . . . .’’
5
The December, 2016 report also concludes that the expected frequency
of individuals who could be a contributor to the DNA profile from the sperm-
rich fraction of the vaginal swabs is ‘‘approximately 1 in 2.1 million in
the [African-American] population’’ and ‘‘approximately 1 in 120,000 in the
Caucasian population . . . .’’
6
Golding provides that a defendant may prevail on an unpreserved claim
when ‘‘(1) the record is adequate to review the alleged claim of error; (2)
the claim is of constitutional magnitude alleging the violation of a fundamen-
tal right; (3) the alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject to harmless error
analysis, the state has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt.’’ (Footnote omitted.)
State v. Golding, supra, 213 Conn. 239–40; see In re Yasiel R., supra, 317
Conn. 781 (modifying third prong of Golding by eliminating word ‘‘clearly’’
before ‘‘exists’’ and ‘‘deprived’’).
7
We note that the issues raised in the concurring opinion are beyond the
scope of this appeal. Accordingly, we express no opinion on the merits of
that opinion.
8
In his original brief, the defendant concedes that he does not ‘‘dispute
that the analyst who generated the profile from a single source, known
sample, such as a buccal swab from the defendant, may not need to testify.’’
Nevertheless, in his reply brief and at oral argument, the defendant attempts
to raise this issue, claiming that the analyst who tested the known buccal
sample from the defendant must testify at trial. We note that Przech’s limited
testimony on this point indicated that the buccal swab was processed in
‘‘an automated procedure,’’ and, rather than having an analyst physically
process the sample, ‘‘a robot actually does it.’’ Moreover, as we have repeat-
edly explained, ‘‘[i]t is axiomatic that a party may not raise an issue for the
first time on appeal in [his] reply brief. . . . Our practice requires an appel-
lant to raise claims of error in his original brief, so that the issue as framed
by him can be fully responded to by the appellee in its brief, and so that
we can have the full benefit of that written argument. Although the function
of the appellant’s reply brief is to respond to the arguments and authority
presented in the appellee’s brief, that function does not include raising an
entirely new claim of error.’’ (Citations omitted; internal quotation marks
omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 197, 982
A.2d 620 (2009). We therefore decline to review the defendant’s belated
claim relating to the testing of the known buccal swab.
9
During cross-examination, Przech testified that she did not process the
sample or perform the lab work in 2007. This is of no moment because the
defendant’s claim is not based on the 2007 testing.
10
‘‘[Defense Counsel]: Okay. Now, we discussed your testing in 200[7];
however, you conducted additional testing and analysis . . . in 2016. Cor-
rect?
‘‘[Przech]: Yes.
‘‘[Defense Counsel]: In 2016, you conducted DNA testing of the vaginal,
oral [and] genital swabs and compared the DNA profiles on those items to
the known profile of [the defendant], correct?
‘‘[Przech]: Yes.
***
‘‘[Defense Counsel]: Okay. You were given the known sample in August,
[2016], or sometime after August 17, and you issued a report in December,
[2016]. You did testing on that sample during that time period. Right?
‘‘[Przech]: Yes.
‘‘[Defense Counsel]: And you documented your results, correct?
‘‘[Przech]: Yes.’’
11
Contrary to the defendant’s assertion, Manson v. Brathwaite, supra,432 U.S. 98, provides little guidance for assessing DNA evidence. In that
case, the United States Supreme Court concluded that ‘‘reliability is the
linchpin in determining the admissibility’’ of evidence of an eyewitness
identification that results from an unnecessarily suggestive procedure. Id.,
114. The court also concluded that the factors to be considered in the
analysis of whether the identification evidence is admissible are those set
forth in Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct. 375, 34 L. Ed. 2d
401 (1972). See Manson v. Brathwaite, supra, 114. These factors include
‘‘the opportunity of the witness to view the criminal at the time of the crime,
the witness’ degree of attention, the accuracy of his prior description of the
criminal, the level of certainty demonstrated at the confrontation, and the
time between the crime and the confrontation. Against these factors is to
be weighed the corrupting effect of the suggestive identification itself.’’ Id.12
The defendant also appears to contend that we may reverse the judgment
on the ground of plain error. The defendant’s claim is not briefed beyond
a conclusory assertion in a single footnote. He contends, without any analy-
sis, that ‘‘[c]onvicting the defendant solely on misunderstood DNA evidence
affects the fairness and integrity of and public confidence in his trial and
conviction.’’ In addition to inadequately briefing his claim; see, e.g., Estate
of Rock v. University of Connecticut, 323 Conn. 26, 33, 144 A.3d 420 (2016)
(‘‘Claims are inadequately briefed when they are merely mentioned and not
briefed beyond a bare assertion. . . . Claims are also inadequately briefed
when they . . . consist of conclusory assertions . . . with no mention of
relevant authority and minimal or no citations from the record . . . .’’ (Inter-
nal quotation marks omitted.)); the defendant also failed to demonstrate
that the jury did not understand the state’s DNA evidence.
13
Conflating the random match probability with source probability is
known as the prosecutor’s fallacy. See, e.g., McDaniel v. Brown, 558 U.S.
120, 128, 130 S. Ct. 665, 175 L. Ed. 2d 582 (2010) (‘‘The prosecutor’s fallacy
is the assumption that the random match probability is the same as the
probability that the defendant was not the source of the DNA sample. . . .
In other words, if a juror is told [that] the probability a member of the
general population would share the same DNA is 1 in 10,000 (random match
probability), and he takes that to mean there is only a 1 in 10,000 chance
that someone other than the defendant is the source of the DNA found
at the crime scene (source probability), then he has succumbed to the
prosecutor’s fallacy.’’ (Citation omitted.)).
14
Having reached this conclusion, however, we take this opportunity to
emphasize that, in appropriate circumstances, and when the defendant
requests it, a trial court may instruct the jury on the meaning of the statistical
rarity of a match. Our research has not revealed, and the defendant does
not contend, that any jurisdiction—state or federal—has adopted a model
instruction on the meaning of random match probability. The need for such
an instruction, what information such an instruction might contain, and
whether it is proper to give such an instruction, however, have been dis-
cussed in academic literature and several cases. See, e.g., State v. Bloom,
516 N.W.2d 159, 170–71 (Minn. 1994) (Page, J., concurring specially); P.
Chaudhuri, ‘‘A Right to Rational Juries? How Jury Instructions Create the
‘Bionic Juror’ in Criminal Proceedings Involving DNA Match Evidence,’’ 105
Cal. L. Rev. 1807, 1850–51 (2017).
Several courts have concluded that the failure to give such an instruction
was appropriate because the instruction improperly addressed matters of
scientific fact, not legal principles. See, e.g., State v. Paxton, Docket No. 2
CA-CR 2007-0062, 2008 WL 4551502, *4 (Ariz. App. January 14, 2008); Stanley
v. State, 289 Ga. App. 373, 375–76, 657 S.E.2d 305 (2008); Keen v. Common-
wealth, 24 Va. App. 795, 807–808, 485 S.E.2d 659 (1997).
This court, however, has taken a different view of jury instructions involv-
ing scientific facts—specifically, in the context of research disproving com-
mon misperceptions about the reliability of eyewitness identification. We
determined that, in a given case in which the concerns raised by the scientific
evidence were applicable, it would be proper for a trial court to give a
cautionary jury instruction on eyewitness identification. See State v. Harris,
330 Conn. 91, 134–35, 191 A.3d 119 (2018) (‘‘it may be appropriate for the
trial court to craft jury instructions to assist the jury in its consideration of
[the reliability of eyewitness testimony]’’), citing State v. Guilbert, 306 Conn.
218, 257–58, 49 A.3d 705 (2012); see also State v. Guilbert, supra, 258 (trial
court retains discretion to give ‘‘jury instructions on the fallibility of eyewit-
ness identification evidence,’’ provided that ‘‘any such instructions should
reflect the findings and conclusions of the relevant scientific literature per-
taining to the particular variable or variables at issue in the case’’).
Given that there is no consensus on the proper instruction explaining
random match probability, or whether such instruction is appropriate, and
that we need not decide this issue to resolve the present case, we leave for
another day the question of under what circumstances a jury instruction
should be provided and the precise phrasing of that instruction.
15
The defendant reasons that the 2016 census identified 41.5 million His-
panic people in the United States over the age of fifteen. The defendant
assumes that one half of those individuals, 20.75 million, are male. He arrives
at the pool of ninety by dividing 20.75 million by 230,000.
16
Evidence that the defendant lived in New Britain and resembled the
victim’s description of one of the perpetrators renders the defendant’s argu-
ment regarding the number of Hispanic males in the United States unpersua-
sive because the argument erroneously assumes that the group of people
in the population that could have contributed to the profile in the evidentiary
sample, in this case ninety, are all equally suspect. This is known as the
defense fallacy, and it ‘‘understat[es] the tendency of a reported match to
strengthen source probability and narrow the group of potential suspects.
. . . [T]he real source probability will reflect the relative strength of circum-
stantial evidence connecting the defendant and other persons with matching
DNA to the scene of the crime.’’ (Emphasis omitted; footnote omitted.)
United States v. Chischilly, 30 F.3d 1144, 1157 (9th Cir. 1994) (overruled
in part on other grounds by United States v. Preston, 751 F.3d 1008 (9th
Cir. 2014)), cert. denied, 513 U.S. 1132, 115 S. Ct. 946, 130 L. Ed. 2d 890 (1995).