Citation Numbers: 10 Misc. 3d 314, 806 NYS2d 373
Judges: Ort
Filed Date: 9/19/2005
Status: Precedential
Modified Date: 2/5/2022
In response to defendant John Kogut’s omnibus motion, the People cross-moved for an order precluding defendant from offering expert testimony concerning “postmortem hair banding” on the ground that this scientific evidence is not generally accepted in the relevant scientific community. By order dated December 1, 2004, the court granted a Frye hearing to determine the admissibility of the proffered evidence. (See People v Kogut, 6 Misc 3d 1011[A], 2004 NY Slip Op 51775[U] [Sup Ct, Nassau County 2004].) The hearing was conducted on June 30, July 1, and August 1, 2, and 4, 2005. The oral argument was conducted on September 8, 2005. The court commends both Mr. Biancavilla and Mr. Casteleiro for the outstanding manner in which this issue was presented to the court.
Before proceeding to consider the scientific methodology for analyzing postmortem hair banding, the court will review its relevance to the present charges. In May 1986 defendant John Kogut was convicted of the rape and murder of Theresa Fusco. Codefendants John Restivo and Dennis Halstead, who were tried separately from Mr. Kogut, were convicted in December of that year. At the Restivo/Halstead trial, the People introduced evidence that a hair, identified as coming from the victim, was recovered from Mr. Restivo’s van. The defendants then called Dr. Peter De Forest, an expert in the field of criminalistics, to testify concerning whether the hair did in fact come from the victim. In rebuttal, the People called Nicholas Petraco, a detective with the New York City Police Department. Detective Petraco testified that he had compared the hairs taken from the victim at the autopsy with those purportedly taken from the van, by examining both specimens under the microscope, and concluded that they were identical.
In June 2003 this court, upon consent of the People, granted the defendants’ motions to vacate their judgments of conviction upon the ground that newly discovered DNA evidence appeared to exculpate the defendants with respect to the rape charges. Dr. De Forest and Mr. Petraco are the expert witnesses whom the defendant now proposes to call at the retrial to testify that the hair purportedly recovered from Mr. Restivo’s vehicle displays a phenomenon known as postmortem hair banding.
According to Dr. De Forest and Mr. Petraco, postmortem hair banding occurs only when the hair begins to decompose inside the hair follicle, while still on the head of the deceased. The
Dr. De Forest is a professor of forensic science and an expert in the field of criminalistics, which is the application of scientific techniques in collecting and analyzing physical evidence in criminal cases.
Dr. De Forest specializes in trace evidence, which is the analysis of materials tending to be small in size such as fibers, paint, glass and human hair. Trace evidence is a broad area within criminalistics and is divided into contact and noncontact traces. Within the area of noncontact traces, criminologists analyze the phenomena of droplets or particles being transferred from one surface to another without contact between the surfaces. Examples of these noncontact transfers are the familiar phenomena of gunshot residue and bloodstain patterns. In contact trace situations, two surfaces come into contact, and material is transferred across the contact boundary. A criminologist will microscopically examine the material exchanged in order to evaluate the existence of the contact. The most common example of contact trace evidence is fingerprints.
Nicholas Petraco is a forensic scientist and consultant. Prior to starting his own business, he was a detective and forensic scientist for the New York City Police Department. He holds a B.S. degree in chemistry and a Master’s degree in forensic science from the John Jay College of Criminal Justice.
According to Dr. De Forest and Mr. Petraco, postmortem hair banding is a phenomenon which is observed through microscopic examination of an individual hair shaft. The phenomenon occurs when an individual hair on the head of a deceased person
Dr. De Forest testified that the occurrence of this phenomenon is dependent upon a number of factors. The closer that the hair shaft gets to the surface of the skin, the greater the degree of keratinization. Keratin is a class of sulfur-containing fibrous proteins which contribute to the hair’s hardness.
Ms. Alison Domzalski is the criminologist who was called by the People. When Ms. Domzalski was working on her Master’s thesis with Dr. De Forest as her adviser, she observed hair banding produced not by decomposition in the follicle, but rather by exposure to the environment, as where the hair was submerged in water or soil.
According to all three of the defendant’s experts, Dr. De Forest, Mr. Petraco, and Ms. Faye Ann Springer, a qualified hair examiner should be able to distinguish the two different types of hair banding through microscopic examination, although in certain situations an accurate determination cannot be made. According to Dr. De Forest, in the case of “classic root banding,” there is no indication of any digestion at the extreme proximal end. Nor is there any evidence of “erosion” or of any kind of “debris” that the hair would have come into contact with by exposure to the environment. Dr. De Forest acknowledged that his ability to differentiate postmortem root banding from that caused by the environment is in part a subjective judgment based upon his experience of observing the phenomenon.
The long-recognized rule of Frye v United States is that expert testimony based upon scientific principles or procedures is admissible but only after a principle or procedure has “gained general acceptance” in its specified field. (People v Wesley, 83 NY2d 417, 422 [1994].) The Frye rule of general acceptance in the relevant scientific community continues to be recognized by our Court of Appeals. (See e.g. People v Lee, 96 NY2d 157 [2001].) However, as the Second Department noted in Parker v Mobil Oil Corp. (16 AD3d 648, 651 [2d Dept 2005]), although
In Daubert v Merrell Dow Pharmaceuticals, Inc. (509 US 579 [1993]), the Supreme Court held that in federal court the Frye rule is displaced by Federal Rules of Evidence rule 702. Rule 702 provides that if scientific knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert may testify thereto in the form of an opinion or otherwise. In Daubert, the Supreme Court, in discussing the nature of scientific inquiry, articulated certain criteria that a trial court is to apply in “screening” scientific evidence and attempting to insure that it is reliable. The Court noted that the term “scientific” implies a grounding in the methods and procedures of science. (509 US at 590.) While the term “knowledge” connotes more than subjective belief or unsupported speculation, the subject of scientific testimony need not be known to a certainty. Arguably, there are no certainties in science. Scientists do not assert that they know what is immutably true, rather they search for new, temporary theories to explain phenomena as best they can. Science represents a process of proposing and refining theoretical explanations about the world that are subject to further testing and refinement. In order to qualify as “scientific knowledge,” an inference or assertion must be derived by the scientific method. In Daubert, the Supreme Court held that for scientific evidence to be reliable, it must be scientifically valid. Among the factors which the court may consider in determining whether a theory or technique is scientifically valid are (i) whether it can be or has been tested, (ii) whether it has been subjected to peer review and publication, (iii) the known or potential rate of error, and (iv) the degree of general acceptance within the scientific community.
As noted, in New York general acceptance within the scientific community is the touchstone for the admission of scientific evidence. However, given the nature of scientific inquiry, the reliability criteria identified by the Supreme Court in Daubert are useful to consider in applying the general acceptance standard. The court notes that Mr. Petraco’s, Dr. De Forest’s, and Faye Ann Springer’s qualifications as an expert in the field of forensic science are not subject to dispute. Furthermore, the technique of microscopic examination of the hair shaft is grounded in scientific method and procedure. The methodology
Aside from the state of the scientific analysis, other factors weigh in the court’s discretionary decision concerning the admissibility of this evidence. (People v Cronin, 60 NY2d 430 [1983].) Dr. De Forest’s conclusion concerning the hair sample originating from the victim suggests possible misconduct upon the part of law enforcement officials in the investigation of this case. The possibility of official misconduct and its potential effect on the integrity of the criminal justice system are factors which the court must consider in ruling upon the admissibility of this proposed expert testimony. Also to be considered is the critical concern for the authenticity of the physical evidence, which is offered to provide corroboration for defendant’s confession, the voluntariness of which is hotly contested by the parties. Based upon all the factors outlined above, the court rules that defendant’s evidence as to postmortem hair banding analysis will be admissible. (See State v Bunley, 805 So 2d 292 [La 4th Cir 2001].) In order to present a complete picture to the jury as to the validity and limits of the defendant’s experts’ analysis, Ms. Domzalski’s research will also be admissible.
. Merriam-Webster’s Collegiate Dictionary (10th ed).
. The phenomenon was first discovered by two Japanese scientists, Sato and Seta. They referred to it as “putrid root” and presented it at a meeting of forensic scientists at Oxford University in 1984. Dr. De Forest has coauthored an article on the phenomenon with Nicholas Petraco, Charles Fraas and Francis Gallery. At the time of the article, Petraco and Gallery were detectivecriminalists with the Crime Laboratory of the New York City Police Department. Fraas was a detective-criminalist with the Scientific Investigation Bureau of the Nassau County Police Department. The article was published in 1988.
. Merriam-Webster’s Medical Desk Dictionary.
. Ibid.
. A study done by Barbara Wager-Collins concluded that environmental factors do not produce this type of hair banding. However, the subjects who contributed the scalp material in that study had expired in a hospital, and some of them had undergone chemotherapy. Thus, the reliability of the Wager-Collins study is open to question.