Preliminary Hearing — Day 2 (July 7, 2026) (Part 2 of 2)

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Preliminary Hearing — Day 2 (July 7, 2026) (Part 2 of 2)
Court proceeding — State of Utah v. Tyler James Robinson (Case 251403576, 4th Judicial Dist. Ct., Utah County). Transcript is the YouTube auto-caption track of the Court TV feed (https://www.youtube.com/watch?v=y6ofpz6ReuE) — verbatim ASR, not a certified court transcript.

in this case, which is the law of this case, which is when we objected to the hearsay aspect of these DNA reports and other reports, you ruled that you were the ultimate determiner of the reliability of the hearsay evidence being uh admitted. And you will recall that our argument was the statute was unconstitutional because it was dictating that you find certain evidence to be reliable without considering whether it was reliable. And your ruling as I understood it >> uh was no, you retain the ultimate determination of whether the evidence is reliable. And that's not a credibility issue. It's is this reliable uh hearsay that the state is offering? And so um issues that go to whether these numbers that the state is putting in front of you are reliable, I think go directly to the substance of your ruling, which is that your role here is to determine reliability of evidence. And I I'm familiar with a case that the court sites, but I think that has more to do with weighing evidence and making credibility assessments, whereas I'm focused on what the court ruled, which is we have to look at reliability here, and that's my job >> as a magistrate. >> Mr. McBride, any final thoughts? 4, this uh the the exhibit 31 is a is considered reliable hearsay. Um in addition uh credibility determinations are not proper for the court to make here for the whole reason that you know studies supporting this supporting this science, studies opposing this science, um testimony from this expert or that expert about what is reliable, what is not, what's more reliable, what's less reliable, factors that affect all those determinations. Those are all very very complex uh decisions. There will be probably multiple day hearings dealing with that and a probable cause determination just not the place to conduct that kind of thorough in-depth and searching analysis rather the case law the constitution of Utah that says the only purpose of a preliminary hearing is determine uh probable cause the case law the rules that all say the court does not weigh the evidence at this stage but leaves that for a finder of fact the jury in the end um that all supports cutting this this line of questioning off at this point rather than going on for uh into into greater depth, your honor. All right. Well, uh based off what's been presented before me, I'm going to sustain in part and deny in part the objection made. I'm going to uh allow this question to be asked. And so that is denying but sustain in the sense that this would be the last question. And if Mr. Bert would chooses to may go on to a different subject or a different line of questioning. >> Sure. Um did that NS report conclude that it remains unclear if visual inspection renders consistent number of contributor estimations across analysts over time? >> Can you repeat that? >> Yeah. Did the report, the NIS report that you referenced, uh, conclude that it remains unclear if visual inspection renders consistent number of contributor estimations across analysts over time. >> I I think I think that goes to the DNA evidence. Um, again, we're we never truly know the number of contributors in a in a forensic sample. Um, so like I mentioned before, you could have DNA mixtures that are made of made up of two, three, four individuals. I have training, I have experience, I followed standard operating procedures. Um, so I I'm making the best determination based on the evidence, the DNA evidence that I have as far as number of contributors goes. Now, if I could, I'd like to return to your case notes and could you uh display for the witness page 365 And while he's doing that, by the way, it's true that if you change the number of contributors, you're going to get different numbers from the software program. >> Uh it depends. So actually each time you run the software you will get a different number um based on the the math that the software system does um but there are studies and validations that show we don't expect that math to be um greatly different usually by a factor of 10 changing the number of contributors it depends if you have a major contributor someone who's made up who's made up most of that DNA profile if I originally interpret something as three calculate a statistic If that major contributor um is the individual that I'm comparing to, if I change the number of contributors to two based on the studies and based on my own experience, it doesn't change the likelihood ratio of that major contributor by much. >> But it does change it. Correct? >> Yes. >> And you just said I think that even when you put in the same parameters, you don't get the same answer if you run it through SDR mix more than once. Right. >> That is correct. based on how StarMix utilizes uh math and distributions, you will never get the same answer twice, but it will be um no more than a magnitude of 10. >> So the um that test is not reproducible in the sense that you can run it a sample or your assumptions in there 10 times, you could get 10 different answers. >> That is true. again all within the first time I run stom mix. I'm not going to get a likelihood ratio of 10 and the second time get 10 quadrillion. I might get 10 quadrillion the first time, two quadrillion the second time. Um but even if I run it 10 times, I'm still going to get around the same likelihood ratio value. Now, could you look at uh tab number four, your case notes at page 365, if let me know when you have that in front of you. I think you need to scroll up There we go. Can you identify this page from your notes? >> Uh, yes I can. These were notes that my technical reviewer made and my technical reviewer, they will review all of my DNA evidence. They will draw their own conclusions as far as number of contributors and comparisons then compare it back to my conclusions. >> All right. So your or this is regarding the seven sample, correct? >> That is correct. That is one of the samples. And your original assessment was that there were three contributors to this sample, right? >> That is correct. Yes. >> Uh and that conclusion was reviewed by a reviewer. Correct. >> Correct. Yes. >> She read the same electrofaroggrams or the name for the output of this technology you use. Correct. >> She utilized the same uh electrofpharoggram which is the the chart that the DNA is on. And does this page in front of you, is that an accurate representation of your case file? >> Yes, it is. >> I move into evidence page 365 and that would be um Baker 4. >> Mr. McBride, I'll object on relevance grounds. >> All right. Did you want to respond, Mr. Bert? Uh your honor, it's relevant because uh the witness originally determined that there were three contributors and I'm like her to explain to the court how she reached that conclusion because I think it does go to the reliability of her testing here. >> All right. So, as it relates to Baker 4, um, and this is her personal notes from Miss Baker as it relates to what I'm assuming is uh, states exhibit 31 that that these notes were prepared as part of the report in states exhibit 31. I will find that it is relevant and that it is admitted into evidence. As regards to publication, what is the request? >> If I may clarify, I think the testimony was that this was not her notes. >> These were the notes of her technical reviewer is what I heard. >> If I please correct me if I misheard that uh from both sides. I want to make sure >> I want to make sure. Are these Miss Baker's notes? >> Could I clarify that? >> Absolutely. Uh, Miss Baker, these are notes in your case file, correct? >> These are notes in my case file, but they are not my notes. >> And you're the way your lab works, you uh you're not the one that does all the different steps in the testing process. Correct. >> That is correct. uh other analysts have input that then all goes into the case file which you have access to and rely upon in rendering your opinions. >> That is correct. Yes. >> All right. >> And this particular page is a uh note written by your peer reviewer that you relied upon. >> Correct. After I made my interpretations and draw drew conclusions, my technical reviewer then reviews the data and draws their own conclusions. So this was created after I had already uh made draw All right. I'm just trying to And so the question I'm trying to get to council is was this particular I I recognize it as it being prepared by someone else but as it relates to states exhibit 31 was this relied upon in order for states exert 31 to be put together as the report because I'm trying to determine relevancy as it relates to that and and that's a crucial point I don't have the answer to just yet. Okay. Um let me lay a more adequate foundation. The um the case file notes are assessed by you at every step of the analysis. Correct. >> Uh not necessarily at every step. Um before I issue a report, before I write a report, I review all of the case notes. So that will be any communication log uh entries, any documentation from the laboratory, the biologists that perform the DNA testing. Um I will review all of that, write a report, and then uh give that to a technical reviewer. They will draw their own conclusions to determine if they agree with me. If they do, they will sign off and then my report and my case file will go for an administrative report uh excuse me review to make sure that the laboratory number is is correct on all the pages um that if there's any crossouts there's dates and initials and so forth. Those two reviews have to be done before I can actually make it a final report and case file that gets submitted um and sent to the field. And in this case, correct me if I'm wrong, but the sequence was you originally determined in seven sample seven that there were three contributors. That conclusion got reviewed. Then you ran some further testing and then you change your conclusion. Correct. >> That is correct. Yes. >> And and before you change your conclusion, you of course go back and look at what the reviewer said about her review. uh that we would have a discussion. Um if I say number of contributors was three here. She notated that it was two, we had that discussion, she agreed with three. So for that step of that process, um because again, we we're peacemealing this. Um typically in a normal case, we will work all of the evidence. I will write a report. For this situation, I had DNA evidence coming to me throughout the day, throughout the night. So I had reviewers at different steps which is not usual for a case. Usually I have one reviewer. Um so in this case that at that particular time I had a reviewer. Then when I uh was submitted additional known samples and use those for comparisons then I did have additional conclusions and additional reviewers. [snorts] >> But you certainly took into account this notation on this page before you change your conclusion. Correct. Uh I don't know that I would agree that I took into account we had already had that conversation and again once I received additional known samples and additional information from the field I then did um amend my conclusion >> and these notes are kept in the ordinary course of your business. >> Yes. >> And they're part of the case file that you rely upon in reaching your conclusions. >> They are kept with the case file after I draw my conclusions. So your I think there's a foundation for this. The state has offered all kinds of hearsay here and certainly this is uh there's no question about the reliability of the entries. >> All right. Anything further from the parties before I uh weigh in on well make my ruling on Baker 4? >> No. uh the court finds that it is uh relevant and uh as it relates to stakes exhibit 31 and Baker 4 is admitted into evidence in regards to publication. Mr. Bert, what is your request? >> Uh that it be published. >> All right. To in the courtroom >> and uh both the courtroom and the to the to the cameras. >> All right. Any uh objection, Mr. McBride? >> All right. We'll go ahead and publish that to all screens and be captured by the media. >> So these notations at the top there 71 male discuss three NOOCC and okay with three. Could you translate that for us what that means? >> Sure. Uh so when my technical reviewer took a look at the DNA evidence um she determined that male DNA was present and she concluded that she would have called it a number of contributor of two. >> She compared it to my conclusions. I said number of contributor three. So we had a discussion as to why she thought it was two, why I thought it was three and she said she agreed um with me calling it three based on her discussion. >> Okay. So, was that an extended discussion you had with her or just >> Oh, no. This was a quick discussion and this is not unusual. Um, we have discussions [clears throat] like this during the technical process quite often. >> And the stamp on the bottom approved by Tara Benson, is that the reviewer? >> Yes, it is. >> Talking about. >> All right. Thank you. Um, now I want to ask you uh to look at page 128 of that No. >> Is this uh an electrofpharoggram that is a part of your case file? >> Yes, it is. >> And is this an accurate representation >> I'm sorry, there's nothing on the screen. I might >> Yes, it is. >> I [snorts] move that into evidence runner. This would be Baker uh 4, page 128. >> Oh, I thought I already admitted Baker 4. Is this a different >> uh >> the previous one was Baker 4 as I understood it. Baker 4, page 365. >> Okay. So, Baker, >> and so this is Baker 4, page >> 28. >> Right. So, the previous admitted exhibit is Baker 4 365. The current proposed one is Baker 4 128. >> That's correct. >> All right. Mr. McBride, >> if I could have just a minute to update my notes on those page numbers. >> All right. 365 was the previous one, unless I heard it wrong. >> Yes, that's right. Uh first I'll note um this is the first of seeing I'm seeing these as exhibits. Um of course I have this file, but I was unaware that we were going to be uh these are going to be offered as exhibits. So I'm looking to find them in my file as we go. Um, second, uh, again, I'm going to object on relevance grounds to the probable cause determination. We're going through the finite details of the analysis here. And once again, I think these are appropriate questions to raise in a 702 hearing, but when with the standards that apply at the preliminary hearing that I've already discussed, I think we're beyond the scope of a probable cause determination as we dive into this evidence. >> All right, Mr. BS. Your honor, I think this exhibit is particularly important because the court does not yet have in front of it what an electrofaroggram is and how it's interpreted. And this particular page will illustrate to the court how the analysts interpreted the peaks uh on this elector to reach the conclusions that she reached that there were three and not two contributors. And I think it will assist the court in determining exactly how this comparison process works and what the output looks like. So the court can see exactly how the interpretations are being made. >> And is this the notes that were relied upon uh in so I'm viewing today's exhibit 31 as a summary and this more of showing the work of how the summary was reached. Am I misunderstanding how this fits in? >> Uh, this fits into uh how the analyst originally was of the opinion that there are three people here and not two. And and it um and she will go on to explain how she changed the interpretation from three to two. Um and the the point of this is to illustrate to the court um that this is a subjective process to a certain extent and that people can read these things in different ways. Um and so uh I I think it will help the court understand exactly what's being compared here. You've got peaks on a line. She will say and and just to let the court know in responsive to Mr. McBride's uh statement that he was unaware that this is going to be an issue. He and I met with this analyst uh before the preliminary hearing. The analyst pointed this page out to us as being illustrative of why she originally concluded that there were three contributors. So, this is not something that's being sprung on the on the state. uh he was a part of that conversation and this particular page was identified by the analysts not by me. So it is important to understand uh why we went from three to two and what impact that has on the uh on the numbers that the state is offering. >> All right. Anything further? >> No. >> All right. under Utah rule uh of evidence 1102 uh B4 it says scientific laboratory of forensic reports and records. I find that this is admissible uh and may be and is admitted into evidence as Baker 4 page 128 and is a request to public Okay. You can >> Was that Was that a yes? Oh, okay. >> Yes. >> All right. So, published I'm assuming to all to that screen as well. All right. It may be published. >> Uh, council, just as a reminder, as this is a probable cause. I understand and I appreciate you giving me a a pointer of where it's going, but I just as a reminder as probable cause. Uh it it is admitted and you may discuss it but but I definitely want to keep this within the track of probable cause. >> Understood. >> Okay. Um is it true what I just told the court that you pointed this particular page out is illustrating why you originally thought we had three contributors? >> Yes, that is true. So explain to the is this an an electrofpharoggram? >> Yes, this is an electrofaroggram. Uh each of those rectangles at the top for example D2S441 that is that small segment of DNA that I referred to earlier and each of those peaks has a corresponding number that is the alil. So that corresponds to the number of repeats that an individual inherited >> and this is what you ultimately after You get this electrofpharoggram not through running it through STR mix. There's a different uh device that you use to produce these electrofaroggrams. Right. >> Correct. Yes. During the DNA process, this is the last step of that process. So what it's doing is it's um so we DNA is found in cells of our body. We're taking um those cells, we're breaking them open with chemicals to release the DNA from those cells. We're making photocopies of those pieces of DNA so that we can essentially see them. Um, and then the last step is to separate those pieces by size and the ultimate output is this electrofaroggram. >> Okay. And is it true that you set the parameters for what the machine will pop up in terms of numbering the alals? >> Personally, I do not set that up. that was done during our validation of the chemicals and the software and the instrument that we utilize. Um, but there are parameters. Um, so the the output of the DNA lets me know uh, for example, the different types of alals, but that's not a parameter I set. >> I want to make sure you answered that. Um, you set or your lab sets what the machine does in terms of labeling particular alals. Correct. >> Uh yes, that's that's part of the whole process in the validation. Yes. >> So you could tell the machine, give me all the peaks at whatever level and label them as what whatever the alals are. >> I see. So yes. So during our validation, we determine our thresholds, our analytical threshold and that stochastic threshold that I mentioned before. The analytical threshold is a threshold that was determined during validation that we input into the software that I utilize. Um that says for example our analytical threshold is 150. Any peak that is 150 or greater the software system will give me that alil call or that number for that peak. any peak that's below the 150 um the software system will not give me an alil call for it >> even though it might be a true alil. >> Correct. Yes. >> So you could say and that you referred to a measurement you refer to that as RFUS right? >> Yes. That that is the unit. >> What does that mean? >> Uh it stands for relative fluorescent unit. So in your lab you tell a machine only label peaks that come above 150 RFU >> the software that uh utilizes the information from the machine. Yes. >> However, it's true is it not that in determining the number of contributors you look below that 150 RFU level. >> And that is true. Yes. >> All right. Now on this, this is only showing one, two, three, four different locations, right? >> Correct. Yes. >> And you see a number of peaks at each one of these locations. Some of them are labeled, some of them are not. >> Correct. Yes. >> So tell us how you originally looked at this and said there's not two contributors, there's three. >> Sure. So first what I do is I count how many uh labels that I see. So, how many of those little squares under each of those locations? So, for example, at D2S441, there are three squares. Knowing that one piece of information comes from mom and one comes from dad. If it's a single source profile from one individual, I expect to see no more than two squares. Because I see three, that gives me an indication that there's at least two individuals. and as well as FGA. There were three peaks that were called. So I knew this had to be at least two individuals. Then what I do is I take a look at the peaks that are not called and determine could there potentially be a third person included. So, for example, at D2, um, the location farthest to the left, I'm asking myself that 12 in that bottom box, is it the same contributor as, for example, the 22 under FGA all the way to the right because I see peaks that are not labeled? It could be that the the 12 belongs to one individual and those two peaks that are not called belong to a second or third individual. and that at FGA I could be seeing the 22 from that third person but that second person has dropped out because I'm able to use information below uh the threshold and I see peaks that gives me an indication that I can increase my number of contributors to three which I did in this case. >> Okay. And when did you reach that conclusion timewise? >> Uh if I recall it was somewhere around September 12th. >> That I would have to refer. >> Sure. I changed my conclusion on September 13th of 2025. >> And explain to the court why you changed your conclusion. >> I was submitted uh an elimination sample from Mr. twigs. And an elimination sample is a sample in which it's from a known individual and then there's an expectation that the individual's DNA might be present. In receiving that sample and talking to the investigators, um it was decided that Mr. Twigs should be used as elimination. When I compared him to this sample, all of the DNA um unlike that major contributor matched to Mr. Twigs. So because of that, I determined that there's actually only two individuals because those small peaks, there was nothing left for a third individual to be compared to. Um, you use a phrase elimination sample. That's typically used, is it not in a situation where you're testing a sample that uh has more than one contributor? >> Um, not necessarily. An elimination is just simply an individual that we're expecting their [music] DNA to be there. Um, so for example, if we have a stolen vehicle, I will I will request an elimination sample from the known driver of the vehicle so I can subtract out their DNA to see what I have left over. It doesn't necessarily have to be more than one individual. There certainly has been times where I only detect that known expected individual. And you said you had a conversation with the investigators as to whether twig should be included as or you talked to them about whether you should get elimination samples. >> I talked to them uh with regards to if I should utilize Mr. Twigs as an elimination verse comparing him and offering a statistic. >> Okay. But in your report, you concluded, did you not, that one of the contributors to both samples was twigs. >> That is correct. Yes. >> Right. You didn't just assume that. You reached the determination that he was the source of both those samples, one of the sources. Right. I I don't want to use the word source, but knowing that there was an expectation that his DNA could be present, when I compared him to that DNA sample, I did see his DNA types present. So, using the word assumed, that that's verbiage that we use when we calculate our statistical um uh calculation. I'm letting the software know I know this individual is there. I'm assuming that they're there. based on my comparisons, I did see um evidence that that person was there. >> But I guess what I'm confused about is we talked before about how your language should never imply an absolute identification, but in the body of your report, you say that one of the contributors is Twigs. You don't say he's a possible contributor like you do for Mr. Robinson. You say he is a contributor, do you not? >> I do. And with elimination samples, that's slightly different. Um, so for example, let's say I have a sexual assault case and I have a vaginal swab from a female. She has a consensual partner. I can request an elimination sample from that consensual partner. If I see that they're present, I can say they're present and say the DNA um foreign to that victim and that consensual partner is one person, for example. So it it's it's different than comparing a a known individual if they're an elimination sample. I can say that I expect their DNA to be there and based on my interpretation and reviewing that data, they are present. >> And and based either on your conversations with the agents or other people, why did you think that Twigs was someone whose DNA you would expect in those two samples? Um, so from what I recall, um, in speaking with the investigators, Mr. Twigs was a roommate of Mr. Robinson. Um, and it was thought that those items, um, came from potentially Mr. Robinson's home. Um, and I don't recall exactly if it was a situation where particular towel was known to have been in that house. I don't remember that exactly, but in talking to the investigators based on their investigation, um, it was important to assume potentially Mr. Twigs was present. >> All right. Did any investigator ever tell you that the towel did not come from Mr. Robinson's home, but was found in a bush out at the university? I >> I was aware of that. Yes. Um, so you knew that that towel was not found in a place where you would expect Mr. Twigs's DNA to be present. >> That is correct. It was found outside of a home, but again, based on speaking with the investigators, they had um information to suspect that that towel came from Mr. Robinson's home and I should utilize Mr. Twigs as an elimination. >> Right. And and again, you didn't assume that. You actually concluded it based on the match, right? >> Uh based on reviewing Mr. Twig's DNA profile to what I developed from these items, I used him as an elimination sample. >> Now, you uh you did various STR mix, what I'll call runs, correct? >> That is correct. Yes. >> And the way this works is you input the number of contributors. You just you determine that and then they also have something called HD and HP, right? >> Correct. Yes. >> Tell the court what that is. >> Uh so those are different propositions. So when calculating the likelihood ratio, uh likelihood ratio compares the probabilities of seeing a DNA profile given one of two different scenarios or explanations or hypotheses. one is that a particular person of interest is a contributor and the other is that an unknown unrelated individual is a contributor. So depending on um the question being asked is how I set up StarMix number of contributors. For example, if I'm utilizing someone as a known uh elimination sample, I will apply their DNA profile both to HP and HD. >> And and the theory of this HP is the prosecution hypothesis, right? >> Correct. Yes. >> And HD is the defense hypothesis. >> Correct. Yes. So, and and these are things you plug in based on your understanding of what the prosecution and the defense are contending. >> Correct. Yes. >> So, how do you plug in the HD in a case where you don't yet have a defense postulating what their theory is? Uh so that is so HD or the defense hypothesis is simply a the DNA profile the probability of the DNA profile given that it's another unknown unrelated person to the um the prosecution's potential person of interest. >> Mr. Ver, I I don't want to interrupt your line of questions, but we've been going for just shy of two hours. Would Right now be a good time to take a great time. >> All right, let's take a 15 minute break. Uh let's see. We'll come back at uh 350. Court is in a brief recess. We are still with Mr. Berts and uh Miss Baker direct examination. >> Thank you. >> Mr. Bert, your witness. Um >> Mr. Baker, would you take a look at in your u notes page 24 Did you write there on the 15th of September 2025 uh spoke with special agent fulier gave update on report timeline discussed that upon review it was decided that additional statistics needed to be run report will still be issued with twigs as an assumed contributor per previous discussions with fulure and carmarmac you see that >> yes I do and and what additional statistics needed to be run at that time? >> Uh so at that time I believe I ran statistics um with just twigs comparing that individual to the sample. Um if I may refer I think that was the only additional Yes. After discussion with my reviewer, it was determined that I was also going to calculate a statistic or compare Twigs by himself, comparing him to the evidence um and having that run in my case file. >> Okay. And could you go to uh tab 38 >> Oh >> yeah, it should not be on the screen. >> Let's pull it down from the screen. >> Thank you. So just to the uh monitors of the attorneys and the witness, Mr. Burke. >> Uh just for the witness, your runner. >> Okay. Just for the witness. >> 39. And this is a Yeah. Page 39. Is this the DNA report? I'm sorry, the Star Mix report that you that was produced as a result of your uh inquiry that involved a comparison of the sample to Mr. Twigs alone? >> Yes, it is. >> And is that a six-page report? >> Yes, it is. And is it a true and accurate copy of the STR mix report for that particular sample? >> Yes, it is. >> I move that into evidence. This would be um Baker 38 page 39 through 44. >> Baker 38 page 39 through >> I am seeking admission as well as publication to the audience and the and the uh camera. >> I just want to make sure I have the label correct. Baker 38 pages 39 through 44. Did I hear that correctly? >> That's correct, your honor. All right. To the state. >> Yes, your honor. I object on grounds of relevance to the probable cause determination. >> All right. And Mr. Bur, would you like to respond? >> So, I'm not not exactly sure what this is in order to determine >> how it fits into the probable cause analysis. Uh sure. >> So a little bit more information because as of right now I don't have enough to admit it. >> Understood. And I apologize to the court. So the report that was admitted into evidence uh has the conclusion in it that both samples were contributed um that Mr. Twigs was a contributor to both samples. And this is the report that the analysts ran in order to make that determination. >> All right. In and did that did these reports >> were these made prior to states exhibit 31 being prepared? >> Yes, that's correct. >> All right. I will ad I will admit uh so Baker 38 pages 39 through 44 is admitted and may be published again as a reminder uh for all attorneys uh this is a probable cause standard. So uh if all parties can just keep that in mind as we're moving forward on this. >> Sure. >> Thank you. >> Thank you. So it may be published to all screens [clears throat] number on this. >> Yeah, it's page 39. No, but the actual >> um >> So, is this the report that you referenced in your notes that you needed to do run the sample through StarMix? >> Yes. Now at the top, this is the Starmix unit dated September 15th and it relates to item 7-1. Correct. >> That is correct. Yes. >> All right. And then down below that uh the kit used if you could go to the summary of the input you tell the software program assume there are two contributors right >> correct yes >> you input sample 7A >> correct yes >> and and when you input it it's just the raw data right >> correct just just the numbers from the graph >> the numbers And then known contributor contributors under HP the prosecution hypothesis. >> Correct. Yes. >> Right. Um and you put in sample 61. >> Yes. >> Right. That's Twigs's known sample. >> Correct. Yes. >> And then the known contributors under the defense hypothesis. You left that blank. >> Correct. Is that because you didn't know what the defense hypothesis was? No. >> No. Again, this the defense hypothesis for this situation if I'm comparing someone is an unknown unrelated individual and that is taken into account during the calculation. >> Okay. And then you input that data and what you get out from that is a likelihood ratio. Right. >> Correct. Yes. And is this a summary of the results from that test on the 15th in terms of a likelihood ratio? >> Yes, it is. >> What is a likelihood ratio? What does that mean? >> A likelihood ratio is a statistic that calculates the probability of seeing a DNA profile given one of two different hypotheses. One is that a particular person of interest is a contributor and the other is that an unknown unrelated individual is a contributor. the probability with the higher number gets the support and the magnitude of the support is determined by the ratio of That's pretty technical stuff, but the the bottom line is that you you're the software computes the numbers and then you look at those numbers and determine whether it has any significance, right? >> Uh I don't know that I would say if it has significance. I report the the value that's calculated. >> All right. And and why is one column these columns relate to different what are called population databases, right? >> That is correct. Yes. >> The one on the far left, BAH, is an FBI population database on Bahamas >> and African-Americans. Yes. >> African-Americans. Another one for Caucasians. >> Correct. Yes. >> SE is Southeast Hispanics. >> Correct. and then Southwest Hispanics. >> Objection. >> That's all I have on that. I'm just trying to explain the chart. >> All right. Well, there's an objection. Let's pause and turning to Mr. McBride. >> Sure. >> Your honor, at this point, I'm going to object on uh again grounds of relevance to probable cause hearing. State v. Drosbeck, state v. Merryill um Xavier Ramirez that the court has cited all hold that uh the court should bind the defendant over for trial unless the evidence is wholly lacking and incapable of reasonable inference to prove some issue which supports the prosecution's claim. I don't know that any of this analysis goes to whether or not the expert's um testimony and her report is wholly lacking and incapable of of reasonable inference to prove her result in this case. We're far beyond this. We're hours into this examination. This feels like a 702 hearing to me. It it it I think we're far beyond a probable cause hearing. Your honor, I would ask the court to um uh sustain the objection, not allow questioning on this or any other matter that does not deal with the issue of probable cause. >> Thank you, Mr. McBride. Mr. Your honor, the state offered this report on a very technical complex scientific area of inquiry and they offered to the court a conclusion in that report that Mr. Robinson and Mr. Twigs were contributors to two samples that were found at the crime scene. They obviously think that's relevant to the probable cause inquiry or they wouldn't have offered the report in the first place. So having done that, I think the defense is entitled to inquire whether those conclusions are reliable because that again is the court's ultimate determination here. Reliability of this evidence. And the court can decide it's not relevant. It's not it's I'm sorry, it's not reliable. Therefore, I'm not going to rely on that in determining probable cause. um and and that or the court could say it is reliable and it bolsters up other evidence that the court is going to hear from. So the particular report in front of us goes directly to the issue of whether the expert uh correctly concluded that Twigs not was a possible contributor but was a contributor. And the state's theory here apparently is that both Mr. Robinson and Mr. Twigs are somehow connected to this crime scene. So I I think you're when the court sees what the numbers were generated and how that compares to her own standards for assessment, the court will see that the conclusion is not justified that she reached. >> All right. Well, I I understand what both parties are saying and uh at a probable cause hearing. The issue is whether we walk one mile or a 100 miles down the path. And and so I want to keep it limited to one mile and as opposed to a 100 miles because that would exceed the probable cause standard for a preliminary hearing for what is before me. And so Mr. Bert, as it relates to the objection, uh I'm going to sustain it in part. If you want to briefly address this and and move on, uh you certainly may choose to do so, but as it relates to uh where we're at, um my hope is we can keep this very brief as opposed to going through all this so we can move on to whatever else you would like to present. >> Thank you. I we'll do that. Your honor, and in in uh in the interest of doing that, could you bring up on the same screen uh part of her report, people's exhibit 31. >> And let's take that off. >> Oh, I'm going to need that up there because I need to >> Oh, so is it part of the same because it was on that screen. I want to make sure that what you're calling up on the screen right now. Is it part of this that was already admitted or something else? >> It's part of this which has already been admitted compared to people or planes exhibit 31 which has also been admitted. >> Okay. Thank you. I just wanted to clarify. >> Sure. >> All right. So if you and do you want that published on this all screens? All >> And the chart I would like you to bring Thank you. So, what we've uh blown up there is from your report plan 31 and you provided this chart in the report, correct? >> That is correct. Yes. explain to the court how this works, what what this chart is supposed to represent. >> Sure. So, this is our verbal scale. In addition to the numerical likelihood ratio value that I provide, I also give a qualitative or a verbal equivalent to that numerical value. That gives some kind of context to to what that likelihood ratio means. >> Okay. And on the left um explain what the greater than 1 million less than one in a 100 means. What does that scale relate to? >> Sure. So that scale is the numerical value of the likelihood ratio. So if I have a likelihood ratio that's greater than or equal to 1 million, I designate that as very strong support for inclusion. Um the next example, 10,000 to less than 1 million, I would say that's very strong support for inclusion and so forth. So you need to reach a likelihood ratio of two in order to get even limited support for an inclusion. Correct. >> Correct. Yes. and go to page two of the report on the left. So from this chart when you ran Mr. Twigs against the sample, what was the likelihood ratio that you determined? >> I believe this chart is not the comparison to Mr. Twigs. >> That's not in the report. The chart at the bottom of the screen is not my comparison to Mr. Twigs. >> Um, let's verify that if we could take that down, the highlight [cough and clears throat] and repost. Um 38 page 45. >> Page 39. That is in in evidence. There we go. Second page. [clears throat] Is this the likelihood ratio from your Twix comparison? >> Yes, it is. >> Okay. Now, what was the likelihood ratio that you calculated >> based on this chart? >> The likelihood ratio was one >> one. >> Yes. >> So, [snorts] that doesn't rise to the level of even limited inclusion. Correct. >> Correct. It would fall under an uninformative. >> Uninformative. And yet you concluded that despite this STR mix reading with a a likelihood ratio of one that Mr. Twigs was a contributor to both item seven and item eight. Correct. >> I did. So actually I I didn't utilize this calculation to determine that Mr. Twigs was a possible contributor or that I could use him as an assumed contributor. Um I I visually looked at the DNA sample and the DNA unlike that major contributor he also had those peaks. So that was one uh proposition or one hypothesis that I determined that he was uh an assumed contributor. Um there there are multiple different ways we don't have a threshold. that I don't have to see two, four, eight peaks to determine I think an individual is present. Given that the field um submitted him as an elimination, I assumed he was a contributor. When I compared him to that data, I did see his DNA present. So when I calculated the statistic for Mr. Robinson, I use Mr. Twigs as an elimination. Let me see if I understand that. The STR mix that you relied upon to include Mr. Rob, you in you relied on the STR mix to include Mr. Robinson as a possible contributor. Correct. >> Correct. Yes. >> But when you ran Mr. Twigs's sample through STRM mix, the result you got was that he was not a contributor. Correct. or that it was it didn't it was of no not even of limited value in including him >> based on the StarMix run it was uninformative but I did use uh my own knowledge and training to determine that I was going to utilize him as an assumed contributor. >> Okay. um your own knowledge in training. Um is there some standard that you use for deciding when not to rely on the StarMix results and when to sort of disregard it and rely on your training and experience? >> I can't say that I disregarded it. Um when I'm comparing someone, that's my first determination. Do I think this person is potentially included or excluded? If I determine that I think they're included, I will run StarMix to give weight to that inclusion. Elimination samples are different. If I'm told that an individual is submitted as an elimination sample, I can assume they're there. Visually, I'm able to look at the DNA evidence and determine, yes, I think there's enough evidence there to assume that individual, which is what I did here. >> Okay. Um, at D16, Mr. Twigs was a 912, right? >> That is correct. Yes, Mr. Twigs was a 912 at D16. >> 912. And did you find 912 in the at that I'm sorry. Eight. The sample eight or sample seven? >> The only piece of information I had for sample 8 at item D16 was a 12. And you said twigs at that was a 912, right? >> Correct. Yes. >> But at that location, the evidence sample was not a 912, but a 12. >> That was the only piece of information that was recovered at that location. >> Let me ask you about um your interpretation rules for excluding someone. Is this an accurate statement? This is from Butler's textbook. In forensic DNA analysis, if any STR locus fails to match when comparing the genotypes between two or more samples, then the comparison of profiles between the question and the reference sample is usually declared a non-match regardless of how many other LOSI match. >> Um, I would agree with that if it's a single source sample. Um, so single source again meaning from one individual. If I have a DNA profile from evidence and I compare it to a known individual, if there's a difference at even one location, I can say it's an exclusion. If I have a mixture, it's not that cut and dry. Um, I have to take into account how many people are in that mixture, how many pieces of information I have, is there potential dropout. Um, so it's just because someone may not be present in a mixture doesn't necessarily mean that I'm gonna automatically exclude them. >> I see at D19s, what was Mr. uh Twigs's type? >> It was a 1416. >> Did you find a 16 al in the uh in the ADA sample? Okay. Um, at th what was Mr. Twigs's type? >> He was a 79.3. >> Did you find a seven al in the 81 sample? >> No, I did not. But again, this is a mixture and there is some dropout. So just because I didn't see uh a seven for example does not mean I would automatically exclude someone. >> It's a mixture. So there was some dropout. So did you assume that um at that location that the alil that dropped out matched his alil? >> Um at that location uh no there's only um one individual represented there. So when comparing an elimination I would essentially ignore that location. I'm looking at the other locations where there was uh two individuals present. >> Okay. Now, a couple more topics and then we're done. Um the evidence you got more than seven and eight, correct? You got a number of other samples. >> Correct. They did >> got a backpack which you labeled as exhibit 9 and a bunch of items from that backpack. >> Correct. >> Correct. Yes. >> You were event you were initially told that those items related to things that may have been discarded by the suspect. >> Uh so initially we didn't have any information. Um so we processed that. Those are items that are good for DNA. not having any information from the investigators, we process them for DNA. As the investigation continues, it was determined that that backpack um was potentially left behind by a by a bystander and there was no comparisons needed at that time. Well, left behind by a bystander or according to your notes at page 20, the >> Uh yes, based on the individual that uh that was not my communication log, that was someone else within the laboratory. That was the information that they received. Before you received any samples, did you request to perform what's called destructive testing on the samples? >> Yes, I did. And destructive testing is um essentially consuming the sample, cutting the the cotton off of the Q-tip or the swab, subjecting it to testing. There's nothing, so there's nothing remaining. Um I have to request permission to consume prior to doing so, and I did in this case. And and why did you do that? >> That is part of our protocols that we have to request permission to consume and we consume. So DNA, we can't see it. So when an item is swabbed, we don't know how much DNA is on that swab, if anything, or how that swab was used. Did someone just swab using one side of it? Did they roll it and use all sides? Because I don't know that it's our practice to consume that swab. It's our best chance of getting any DNA evidence. And that's that's a determination that you made in this case before you even saw any of the evidence. Correct. >> Determination to consume. >> Yeah. >> Yes. >> Okay. Now, remember I referred to that NRC report? >> Yes. >> 1996. Did they say there a wrongfully accused person's best insurance against a possibility of being falsely incriminated is the opportunity to have the testing repeated? such an opportunity should be provided whenever possible. >> Yes, that does say that. >> And does your laboratory have a a policy standard 7.4 which says where possible the laboratory shall retain or return a portion of the evidence sample or extract? >> That is correct. Um and we do actually return the remaining extract, the liquid from our DNA testing. Um, so we did consume the swab. However, there was a small amount of liquid uh that was left and returned >> on some of the items, right? >> Uh, I believe on all of the items. >> Well, we'll get to that in a minute. And that policy that I read is from your your lab policy, right? The FBI's lab policy. >> Yes, it is. >> And then is there also a similar policy from the quality assurance standards? the FBI quality assurance standards which says the laboratory must have a policy on sample consumption. The policy is expected to provide instruction for if and when the laboratory may or may not consume a sample and any documentation that the laboratory requires. >> That is correct. Yes. >> Okay. Now your report indicates that certain samples were destroyed consumed. Correct. >> That is correct. Yes. and which samples >> Uh items 1 through six which were swabs from possible smudge, swabs of hand swipe, swabs from possible sweat drop, swabs from possible smudge, swabs of possible smudge, and swabs from possible sweat drop. in addition to items 54 and 55 which were swabs of swiped finger areas and swabs of stairwell stairwell railing. [snorts] >> Okay. So when you wrote in your report that those items were consumed um which of those items and and by that you mean the the actual swab was consumed? >> Correct. So a swab is just like a Q-tip. So the cotton portion of that swab was cut off the wooden stick, placed into a tube, subjected to DNA testing. So we consider that consuming. Um but again there is liquid at the end of the process that is returned to the field. >> And the the normal procedure in terms of sample preservation would be something called sample splitting, right? You split the swab and you use half. you save half so that your testing results can be replicated uh and retested. >> Uh so yes. However, um again, I don't know how an item is swabbed. So even if I were to cut that swab in half, it could be that I'm testing the half that doesn't have any DNA and the other half may have some DNA or the swab um may have a little bit of DNA on one side and a lot on the other side. So for the best possible chance of getting a DNA profile, it is our practice to consume the entire swab. >> So for the first six items, those were swabs that were taken from the uh northeast corner of the Losi building. Correct. >> Correct. Yes. >> Um and you used all all of the swabs and you concluded that there was no DNA present on any of those items. Correct. That is correct. >> So you couldn't do any comparative testing? >> Correct. There was nothing for me to compare to. >> Okay. And what did you have left after you did that in terms of the volume of extract? What was left? >> Uh so it was approximately three microl. Um so a very small portion. >> Very small portion. And you actually used 10 microL to do your testing of those samples. Right. >> That is correct. Yes. So if you didn't get any results with 10, what you left over would not be sufficient to get any sort of independent testing done. Correct. >> Uh it could be tested. However, my expectation if I took 10 microL and did not get any DNA, the remaining three would also still not give me any DNA. >> Okay. And uh for item 55, that was two swabs of a stairwell from a stairwell railing where the suspect touched the railing. Right. >> Uh as far as I know, they were swabs from a stairwell. >> And correct me if I'm wrong, but I understand from your lab notes that you took those two swabs and combined them into one sample and then used the whole sample. Right. >> That is correct. Yes. Okay. Before you did that, did you inquire whether the two swabs came from two different areas? For instance, maybe the suspect touched it here, but the other sample was taken somewhere else. >> Um, I did not. They were both labeled as coming from the same stairwell and they were packaged together. So, our uh policies and procedures is that we can combine those two together. >> And when you do that, you create a mixture, right? I don't know that I would agree that combining the two would create a mixture. Um given the item of evidence, a stairwell railing. I don't necess don't necessarily expect that one swab would have one person, the second swab would have a different second person and combining the two of them creates a mixture. Um however, I don't know that for certain. But again, we're I don't know is DNA present. So my uh our procedure is to combine and consume those swabs. >> Okay. And in this case when you did that what you got was a complex mixture right? >> I did I got uh DNA from more than five individuals. So I could not provide a conclusion. >> All right. No Mr. And we are at the 430 point. I just want to inquire. Not applying pressure just trying to understand. >> Okay. >> Be done with her. Um, testing of the length of the DNA sequence, the length of the DNA box cars, not the sequence of ACT and G within those sequences. within those box scars. Right. >> Correct. Yes. >> And is it true that there are different alals that have the same length when you measure by STRs but have different sequences? >> Yes, that is possible. >> And I'd like to show you a chart that you have reviewed. I believe this is uh 34? This is not uh in front of the uh on the public screen just for the witness. >> Okay. >> And is this a chart that you reviewed to uh that I prepared to and you looked at to see if I had correctly stated what alals were found? Yes, it is. >> And it does it as as it's presently existing accurately state what the what the alals are at each location? >> Yes. >> Okay. Um I would move that into evidence. It's five pages and it's Baker 34. >> Yes. I object. Unless this exhibit is reasonably likely to defeat the primaacasia showing of probable cause, this is irrelevant to the preliminary hearing. >> Mr. Burke and this exhibit in the next one go directly to whether the comparisons being made between Mr. Robinson sample and the uh evidence samples are usable and reliable to make a determination that he is a probable contributor. >> I I I'm not sure I'm following with what you're saying on there. I maybe it's just because it's late in the day that >> um so this chart illustrates what alil she found at each location for Mr. Twigs and Mr. Robinson. And for the evidence samples, the seven 71A and 81A, the other alals are on here as well, but we're going to focus on seven 71 and 81. And for instance, your honor, at the uh uh the first reading there is for Tyler Robinson at the D3 location. He is a 17. Okay. And take that down. And then if you go down to the 71 towel sample, which is what the topic is of this report introduced by the state, you'll see that she found a 17 there as well measured only by the length of the DNA strand. And what she's going to testify to is at this location and si five or six others there are alals all of which measure here 17 but actually contain different sequences and that her testing that she used does not measure for those differences >> and so as it relates to probable cause that's what I want to keep coming back to >> again if this was a trial this may be a little bit different analysis that that the the uh trial judge applies. But as a magistrate taking a look at this and looking at the probable cause standard, how how does this comport? >> So it comports because it goes to the ultimate opinion expressed in the report that the state is offering that the report offers reliable support that Mr. Robinson is a possible contributor. And we're asking the court to consider that the comparisons are only based on a limited number of uh lengthbased comparisons and that there are sequence differences so that she cannot distinguish and I believe she'll testify she cannot distinguish based on the testing that she did in at least five separate locations whether the evidence sample and Mr. Robinson's sample or for that matter Mr. twig sample matches um the sequence differences here >> and this is my final area and I think I can do it very efficiently and I think it is important for the court to consider >> especially as it relates to the comparison to Mr. Robinson >> Mr. May Pride >> and she is also going to testify that the analysis she does is based on looking at the totality and all of the different um markers that match and are consistent and that's how she comes to the the opinion that she does. The point is there are explanations that are susceptible to different interpretations and arguments. Ultimately, we're going to have an expert test expert hearing where all of the literature is going to be before the court and the court's going to determine if it meets a threshold of reliability for admission at trial. But at this stage, even even granting that there may be some argument that may come from defense council's position, the court can't weigh it. This does not go to the probable cause determination. And uh I don't think it's relevant and and this exhibit in particular is not relevant without the testimony of of the witness. Um, and so the exhibit [clears throat] should not be admitted on his face either. >> That that's why I was trying to lay a foundation that she would and offered a proof to the court that she would testify that in fact there are these sequence differences at the five or six locations, six different locations relevant to m the comparison to Mr. Robinson. Um, and when the state says the court cannot weigh it, the court can weigh reliability. The court has ruled that. So, we're we're simply asking the court to take into account the limited nature of these comparisons and the fact that she cannot based on the testing that she performed tell the court whether there are differences between uh at at these five locations. she can't match Mr. Robinson to the question samples because she didn't do sequence testing and she'll also testify that the FBI is in the process of implementing this kind of testing. >> All right. Thank you to both sides. I'm going to admit uh allow the admission of this uh evidence, but I'm a limited number of questions. I we are now at uh 440. I I I this is on the cusp of whether it is applicable to the probable cause standard. I want to afford the fence its full opportunity, but I still have to rein it in to keeping it to probable cause and not going into a full exploration because that's not the purpose of a preliminary hearing. So, I will admit uh Baker 34. Um, but Mr. Bird, I'm going to limit you to how much time do you need to >> I just need about 45 minutes. I'm going to the next chart will be the chart with the uh what are called ISO alals displayed for the court so the court can see what we're talking about and that's it. >> All right. >> I'm just going to have her document that in fact I've accurately stated what the alals are that have sequence differences. >> All right. So it is Mr. McBride. >> Um just on on a second matter which is I need to cross-examine this witness. She's got to leave town today. Um, I would like 20 minutes to cross-examine the witness. >> All right. Well, we'll go with the uh Mr. All I accept [clears throat] Mr. Bert's representation is the amount of time and I'm going to talk less because that's consuming more time and uh also allow the state uh the appropriate time for crossexamination given the nature of this witness having to travel. So, Mr. Bert, I'll turn to you. This has been moved into evidence. Do you want it on the screens? Um, actually I don't need it on the screen. Just in the interest of efficiency, pull up the next one, please. >> Okay, I want 35. Take that one down. And is this exhibit the same chart with what are called the isoles indicated? Yes, it is. >> And isoles is a term used to refer to these alals that have different sequence but the same length. >> Correct. Yes. >> So across the top there for AL 17 and D3 there is a al AL 17A al 17B al 17 C all with the same length but different sequences for each of those three. Correct. Yes. >> And similarly at VWA where you say that the Mr. Robinson is an 1819 and 18/19 in the evidence sample. There's an 18A, a 18B, a 19A, and and a 19b. >> Correct. Yes. >> And similarly for the other areas I've indicated there, I've accurately stated what the different sequence alles are. Correct. Yes. >> So I move this exhibit into evidence rather and for publication. >> Is this Baker 34? >> Uh yes >> 35 >> 30 >> 35 Baker 35. >> Same objection, your honor. >> All right. I'll admit to evidence uh under the previous statement as it relates to Baker 34. It may be published. And as you look at these five areas, you can't distinguish the evidence samples from Mr. Robinson based on the sequence differences, can you? >> Correct. I only use utilize length differences, STRs, in this case. Um, the FBI laboratory does not use sequencing for nuclear DNA testing, nor am I qualified in it. Right. What is NGS? >> NGS stands for next generation sequencing. >> And your laboratory is involved in validating next generation sequencing. Correct. >> We utilize next generation sequencing for mitochondrial DNA, which is a a different subset of DNA testing, but not for nuclear DNA testing, which is what we're talking about today. >> All right. But the people who market STR mix also market a sequence platform, do they not? I'm not aware if they do or do not. >> Um, >> Well, I'll save that for redirect. Thank you. >> Thank you. >> All right. Turning to this state, Mr. McBride. Oops. >> Good afternoon. I want to start by asking you uh what your training and experience is. First of all, uh do you have any education? >> Uh yes, I do. I have a bachelor's of science and biology from Salisbury University. And do you after your uh bachelor's in biology degree uh what did you do for your career and in uh further education? >> Uh upon graduating from college I began working at the FBI laboratory as a contractor. I was assigned to the federal convicted offender program which was a program under the DNA unit. Um during that time I did that for approximately a year and a half. It was my responsibility to open and inventory and barcode DNA collection kits sent in from federal agencies across the United States. I then became a biologists in the DNA casework unit. I did that for approximately six years. During that time, I did the actual testing of items of evidence. So, swabbing, cutting those swabs, um producing the DNA profile. And then in 2015, I accepted a position as a forensic examiner, which I am still today. I'm sorry, what year was that? >> 2015. >> So 11 years you've been doing more or less the same duties you have now. Is that right? >> Correct. Yes. [snorts] >> I want to ask you about your lab's accreditation. What is accreditation for a laboratory? >> Accreditation is a formal recognition that our laboratory is following a very strict set of standards. We're accredited by ANAB, the American National Standards Institute, National Accreditation Board. Um, and our accreditation, uh, shows that I have the or we have to follow standards such as I have to have a certain education background, how we process evidence, how we store evidence. Um, every four years we're audited to those standards, meaning an outside body will come into our laboratory, look at my training records, look at our standard operating procedures to ensure >> And you mentioned your training. So, what do you have to do as a as an examiner there, as a scientist there for your lab to maintain its accreditation? So, for my training program, I had to complete a two-year training program. During that time, I learned the science behind DNA testing, and I showed that I understood that science by completing oral board examinations and written examinations. I also then had to show that I could relay results that those scientific results to a jury by completing moot court exercises. And before becoming qualified, I then took something called a competency exam or it's like a final examination to show that I'm qualified to perform my duties. During that accreditation or that audit process, my training records were reviewed to make sure that I had the proper coursework, the proper um uh college degree um as well as completing successfully that training program. And do you have to uh keep up with ongoing education to maintain your uh do you have a certification? I >> I'm not certified. I'm qualified as an examiner. >> To maintain your qualification, do you have to have ongoing education? >> Yes, on a yearly basis. I have to complete at least eight hours of continuing education and this can be done by attending conferences or lectures or reading scientific literature. >> Uh do you also have to undergo proficiency testing? Yes. And a proficiency test is a test that we receive from an outside vendor. I process that test like I would any other case and submit that um those answers to determine if I'm satisfactory or unsatisfactory. This tests not only me to see if I'm still proficient in my qualifications, but it also tests the laboratory process to ensure that we're getting accurate and reliable results. Now, as you discussed your work in this case, um you talked about your work needing to be reviewed by another analyst. >> Correct. Yes. >> And is that true in every single case? >> Yes. In every single every one of our cases, um they have to undergo a technical review in addition to an administrative review. >> And it sounds like during those technical reviews and administrative reviews, there's discussions between you and other analysts. Is that accurate? >> Yes. And is that an opportunity for training and learning as well? >> Yes, absolutely. >> And I I assume that training and learning learning goes both directions that you're learning and you're also helping others understand your thought process which may train them as well. Is that accurate? >> That's true. Yes. >> The tools you use, are the tools you use validated? >> Yes, they are. >> And what is what does that mean to have a tool that you use validated? So a validation is a thorough testing of a process or procedure. Um so we before we subject any evidence to testing we ensure that those process and procedures will work within our laboratory. Based on the validation, we create something called standard operating procedures or SOPs. And these are kind of like cookbooks. It gives us step-by-step instructions on how to do our process and procedures. And then both myself as an examiner as well as the biologists were all trained to those standard operating procedures and tested to those standard operating procedures during proficiency tests. >> Now you've talked about I think a couple of the tools you use. One you call StarMix. Is that right? >> Correct. Yes. >> And is that tool validated? >> Yes, it's validated both developmentally and internally. developmentally is it's validated by the creators of the software and then we also we the FBI laboratory also tested StarMix to ensure that it we could use it within our laboratory and produce accurate and reliable results. >> Now when you say it was developmentally validated is that in a peer-reviewed study? And is StarMix um used how how widely is StarMix used throughout the world? Uh StarMix is used in approximately 120 laboratories both um domestically and internationally. I want to go back to some of the questions you asked on direct examination. Um, you asked about an exhibit 84, Baker 84, which is the DO DOJ ultra, which is the uniform language. What does that stand for? >> Unifor language for reporting and testimony, I believe. >> Okay. um uh it talks about um language that you should use and language that you shouldn't use as an examiner and a scientist. Correct. >> That is correct. Yes. >> Now I want to ask you a little bit about uh what you do in when you when you have a conclusion like you did in exhibit 31. Um, do you know, see, the the directive from the Department of Justice limits the adjectives you can use to describe the evidence and the conclusions that you reach. Is that accurate? >> Yes, it is. >> And the thinking behind that is to submit the statistical number and let others decide, meaning the the reader decide how they want to describe that number. Is that accurate? Yes, it is. >> So, for example, if we [snorts] can look at exhibit 31, if you don't mind Yes. And that's been admitted. So, if we can And Kimberly, if you could scroll to Thank you. So item seven sub one is the swabbing from the towel from the rifle. We have uh the number in a written form in the second paragraph beneath the heading and then beneath that you have a table. Correct? >> That is correct. Yes. And uh the likelihood ratio uh gives the number, right? That's the likelihood ratio. And that's stated in sentence form in the paragraph preceding the table. Correct. >> Correct. Yes. >> The language, the only language you can use to describe what that number means from the DOJ directive is very strong support for inclusion. Correct. >> Correct. Yes. And the sentence there that says the DNA results from item 71 are 1.7 octillion times more likely if Twigs and T Robinson are contributors than if Twigs and an unknown unrelated person are contributors. The reader can assign whatever value they want to that. Correct. >> What do you mean? >> Meaning adjective to describe what that means. >> Sure. Yes. >> The adjective you can use is very strong support >> for inclusion. Yes. >> Okay. for inclusion. All [clears throat] right, if we go to 81, if you'll Kimberly, if you can scroll down just to make that a little bit easier to to view. Same question there. The results are from 81 are 30 quintilion times more likely if Twigs and T. Robinson are contributors than if Twigs and an unknown, unrelated person are contributors. Um, the adjective you're allowed to use is very strong support for inclusion. Again, correct? >> Yes. >> [clears throat] >> Okay, we can take that exhibit down. Uh you were asked about formal activity level and you describe this as the lab cannot testify about or you cannot testify about what left what action left the DNA on the object. Is that right? >> That is correct. Yes. >> Does that does that mean that an individual did or did not touch? Let me ask you this. How can DNA get onto an object? Uh >> DNA can get on an object via direct contact, so an individual touching an object. It can also end up on an item via body fluids such as blood um or through transfer. So if I were to touch an object um and then that object is given to someone else, my DNA could potentially be on that other individual And uh your lab can't or you're not you cannot testify as to what precise action left the DNA on the object. Correct. >> Correct. I cannot. >> Okay. Same question about time. You can't testify about the exact time the DNA was left on an object. Right. >> Correct. But there are some indicators that may give some information about uh how long and the conditions under which an item under which DNA was placed on an item like degradation. >> Uh yes, degradation or the condition of the item. Um, so again, if a a firearm, for example, is in a a river, um, I would expect with the the water rushing over that item, I may or may not be able to detect DNA. Um, also, if there's an item of evidence that is exposed to the elements, something that's been left behind 10 years ago, I don't necessarily expect to recover DNA, but something that may have been left yesterday, I might be able to uh uh detect DNA. An item that has been left in the dirt or has been rubbed in the dirt, could that affect your ability to recover DNA? >> It could. Yes. >> Could it also affect degradation? >> Yes. >> Um, can UV rays affect degradation? >> Does degradation keep you from uh doing your work? >> No, it does not. >> Um, is degradation normal? >> Yes, it is. Uh, does all DNA degrade? >> Uh, it does. Yes. >> I imagine if it's kept in a pristine environment, it it would degrade less than if it's kept in a or if it's found in a less or uh out in the open. Is that accurate? >> Yes. >> Okay. You said with regard to the screwdriver, there was some de degradation. Um, did that affect your ability to reach conclusions in this case? No, it did not. >> You said in on item seven, the towel or the swab from the towel, there was slight degradation, not as much as exhibit 8. Is that accurate? >> Yes. >> Did that degradation affect your ability to reach a conclusion here? You're asked about the PCAST report. Uh you testified that that gave guidance on different areas of forensic science. Do you know what year that report was uh published? >> I I don't recall the year. >> Uh do you know if it's been within the last 5 years? >> Uh no, it has not. >> Meaning it's older than that? >> Yes. Um, do you know if it's been the last 10 years? >> I I think it was 2016, but I'm not entirely sure. I would say within the last 10 years. >> Let me ask you this. Has um the science in your area, can I refer to it as probabilistic genotyping? >> Uh pro probabistic genotyping is the uh math in my area. Yes. >> The science in your area h and in your field has it developed over the last 10 years? Uh yes it has. >> And have there been studies that have uh made suggestions which have been implemented in the field? >> Yes. [snorts] >> You testified about um exhibit seven and 8 um that they both had mixtures. Excuse me. Yes. Items seven and eight. in your testing the the of these items that they both had mixtures and you stated I want to make sure I understood this you stated I believe that the minor sample the minor contributor was less than 20% and that it was actually 5% the ratio was 5% to 95%. >> For one of the samples yes >> do you remember that? >> Yes. Does that mean the 5% was from Twigs and the 95% that that 945% is assumed from the defend the the Robinson >> when I calculated the statistic uh Twigs's DNA profile aligned with the 5% contributor and Mr. Robinson's DNA profile align better with the 95% contributor. >> Okay. Same question with regard to eight. I think you said the ratio is 11% from the minor and 89% from the major. Is that Twigs being the the 11% and Robinson being the 89%. >> Yes, Twigs uh better aligned with that 11% contributor and Mr. Robinson better You're asked about Baker 4, an an Do you remember this exhibit by chance? I don't have a copy of it. So, well, do you have Baker 4 365? And item seven is the towel, right? >> Yes. >> Item eight is the screwdriver. >> Correct. Yes. it's 5:' I'm going to wrap up. Um your con We can go ahead and take that down. I'm sorry. Thank you for helping out in reaching your conclusions, did you follow um the protocols of your accredited lab? >> Yes, I did. based on your training and experience and following those protocols, did you in fact come to the conclusions described in exhibit 31? >> Yes, I did. >> Thank you. And how much time are you anticipating? >> Right. Um you referred on cross examination to your training in experience, right? >> Yes. >> Do you agree with this statement uh in the PACASS report? Experience or judgment cannot be used to establish the scientific validity and reliability of a metrological method such as a forensic feature comparison method. Moreover, a forensic examiner's experience from extensive casework is not informative because the right answers are not typically known in casework and thus examiners cannot accurately know how often they erroneously declare matches and cannot readily hone their accuracy by learning from their mistakes in the course of casework. Do you agree with that statement? >> I don't. Um I think experience they're right in the fact that we never know the true answer. However, my experience um means that I've seen a lot of different DNA. I've seen a lot of validation data. Um so that does help me come to a conclusion. >> Um do you agree with this statement? uh by that same report, good professional practices such as the existence of professional societies, certification programs, accreditation programs, peer-reviewed articles, standardized protocols, proficiency testing, and the code of ethics cannot substitute for actual evidence of scientific >> I I don't think I agree with that either. Um the the science has been heavily validated and tested to show that's reliable. Um being following protocols that are based on validation again shows that my results are accurate and reliable as well as being proficiency tested. By the way, you said that that report was not authored by experts, but the head of that group was Eric Lander, who is one of the uh foremost experts in the area of uh forensic biology, is he not? >> I that name does not ring a bell. I I don't know who that individual is. >> You don't know who Eric Lander is? >> No, I do not. >> Okay. When did you go to school? What years? >> Uh 2003 to 2007. You said that STR mix was widely used and that it's been validated. The PCAST report said the problem is it's been validated by the people selling the product, right? >> Uh develop developmental validation, yes. Internal validation, no. A laboratory that's going to utilize StarMix has to validate within their own laboratory. And the Pass report said that we need validation data not by the people selling the product but by independent scientists in order to make this reliable. Right. >> Uh they do and that's exactly what happened. Uh there was 31 laboratories that came together in response to the PACS report and uh gave their validation data on how they internally validated StarMix. And then after that information came forward, um the PACASS committee reviewed it and they said PCAS was unpersuaded by those studies. While likelihood ratios are a mathematically sound concept, their application requires making a set of assumptions about DNA profiles that require empirical testing. Errors in the assumptions can lead to errors in the results to establish validity with a range of parameters. It is thus important to undertake empirical testing with a variety of samples in the relevant range. And they specifically address the studies you're referring to, did they not? >> I believe they did. Yes. >> Yeah. Um, and then lastly, you said that uh STR mix is widely used, but as I understand your testimony, you didn't use it and rely upon it for your conclusion about twigs, right? The ex the the software told you there was no support there for including them and you ignored it and decided otherwise. Correct. >> I did not ignore it. Uh again given the type of sample, it was an elimination sample. Um I compared that individual to the DNA profile that I developed and determined that I could conclude that I could utilize him as an elimination sample. >> You said your laboratory was accredited, correct? >> Yes. But you're aware that in 2004 the inspector general did a comprehensive audit of your laboratory and publish a report called the FBI DNA laboratory report a review of PRA protocol and practice vulnerabilities which found a number of errors in the way that your lab does testing. Correct. >> Objection. A 2004 study is hardly uh relevant to this proceeding 22 years later. It's relevant because he's relying on accreditation to somehow say that these results are valid. This lab was accredited when this study was done. >> I'll allow this single question. Uh she may respond. Uh so I'm overruling the objection and then we'll continue to move forward. >> You're aware of that study, right? >> Uh no I'm not. >> Okay. Thank you. That's all I have. >> All right. Anything further for this witness? >> Yes. I think there's one followup needs to be asked. Um you were you were asked that or you testified you never know the true answer with fieldwork. Correct. >> Correct. Yes. >> And that's compared to ground truth studies where you do know the true answer and you can compare the conclusions that analysts draw with the true answer. The ground truth answer that is the basis of the study. Is that right? >> Yes. And that is what our validation is. >> Your your validation actually studies ground is a ground truth test in essence. >> Yes. Okay. >> Thank you. Anything further for this witness? >> Thank you, Mr. Speaker. >> Thank you. >> May this witness be excused? >> Yes. >> Thank you, Miss Baker. You may step down. >> Thank you. >> All right. Well, uh does either party need the benefit of the record before we go into recess? >> No, judge. >> All right. Having both parties uh said no, uh we'll go ahead and uh be adjourned until tomorrow at 100 p.m. We do not have morning court for this proceeding and we'll start up at 1:00 p.m. in the afternoon.