1. Stephie-Anna Ramaley Deputy District Attorney Office of District Attorney Allegheny County, Pennsylvania RECENT TRENDS IN CHALLENGES TO FORENSIC EVIDENCE USED IN CRIMINAL PROSECUTIONS

2. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) Rule of Law: Evidence must be “sufficiently established to have gained general acceptance in the particular field in which it belongs.” States that still use the Frye Standard: California(Kelly), Illinois, Maryland, Minnesota, New Jersey, New York, Pennsylvania, Washington FRYE STANDARD

3. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (U.S. 1993) Rule of Law: F.R.E. 702 superseded the General Acceptance test of Frye and therefore provides the standard for admitting expert scientific testimony Federal Rule of Evidence 702 - A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:  the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;  the testimony is based on sufficient facts or data;  the testimony is the product of reliable principles and methods; and  the expert has reliably applied the principles and methods to the facts of the case. DAUBERT STANDARD

4. 1)Automated Probabilistic Genotyping in Forensic Biology cases (DNA) 2)Chemical Analysis of Designer Synthetic Drugs RECENT CHALLENGES TO FORENSIC EVIDENCE IN CRIMINAL PROSECUTIONS

5. Interpretation of DNA Data: DNA data retrieved from evidence (evidence genotype) DNA data retrieved from known individual/suspect (known genotype) DNA data from evidence (evidence genotype) is then compared to the DNA data from a known reference/suspect (known genotype) Probability is then calculated to show how much more the evidence DNA matches the known individual as opposed to the DNA from a random person PROBABILISTIC GENOTYPING IN FORENSIC BIOLOGY

6. Mixtures DNA data from more than one person is recovered from the evidence Often yields inconclusive results Computer Interpretation of DNA data – Example: TrueAllele COMPUTER INTERPRETATION OF QUANTITATIVE DNA EVIDENCE

7. COMMONWEALTH V. FOLEY, 38 A.2d 882 (Pa.Super. 2012) Challenge to TrueAllele under Frye Held: Not Novel Science Proprietary nature of the source code doesn’t make it Novel Testimony determined Admissible FRYE CHALLENGE

8. Bakersfield, Kern County, CA (Kelly-Frye) - 2013 Vanderburgh, Indiana (Daubert)-2016 East Baton Rouge Parish, Louisiana (Daubert) - 2014 Plymouth County, Massachusetts (Daubert) - 2016 Schenectady County, New York (Frye) - 2015 Cuyahoga County, Ohio (Daubert) – 2014 Indiana County, Pennsylvania (Frye) – 2009 Beaufort County, South Carolina (Jones) – 2015 Colonial Heights Count, Virginia (Spencer) - 2013 JURISDICTIONS ALLOWING TRUEALLELE INTERPRETATION OF DNA DATA

9. Challenges to the Technology used in the analysis of controlled substances are virtually non-existent today Instead, challenges seem to be focused on Designer Drugs DRUG CHEMISTRY

10. Challenges to the Technology used in the analysis of controlled substances are virtually non-existent today Instead, challenges seem to be focused on Designer Drugs DRUG CHEMISTRY

11. Challenges to the Technology used in the analysis of controlled substances are virtually non-existent today Instead, challenges seem to be focused on Designer Drugs DRUG CHEMISTRY

12. Synthetically produced by modifying the chemical structure of existing illicit substances, with the goal of mimicking those substances Often marketed as herbal incense, bath salts, jewelry cleaner, or plant food, and have caused significant abuse, addiction, overdoses, and emergency room visits They are labeled “not for human consumption” to mask their intended purpose and avoid Food and Drug Administration regulatory oversight of the manufacturing process DESIGNER “SYNTHETIC” DRUGS

13. A substance other than a controlled substance that is intended for human consumption and either has a chemical structure substantially similar to that of a controlled substance in Schedules I, II or III of [the CSDDCA] or that produces an effect substantially similar to that of a controlled substance in Schedules I, II or III.... 35 P.S. § 780-102 STATUTORY DEFINITION OF DESIGNER DRUGS IN PENNSYLVANIA

14. MOST COMMON CLASSES 1)Synthetic Cannabinoids, known as “Synthetic Marijuana”,“K2,” or “Spice”, are often sold in legal retail outlets as “herbal incense” or “potpourri” 2) Synthetic cathinones are often sold as “bath salts” or “jewelry cleaner”

15. Man-made chemicals that are applied (often sprayed) onto plant material and marketed as a “legal” high Synthetic cannabinoids mimic Δ9- tetrahydrocannabinol (THC), the primary psychoactive active ingredient in marijuana. SYNTHETIC CANNABINOIDS

16. Man-made chemicals related to amphetamines Products often consist of methylenedioxypyrovalerone (MDPV), mephedrone, and methylone SYNTHETIC CATHINONE

17. 1) Compounds in the drugs aren’t necessarily illegal 2) Chemical makeup of drugs are constantly changing 3) Testing capabilities in Laboratories PROBLEMS ASSOCIATED WITH DESIGNER DRUGS

18. A “Controlled substance analogue” is defined as a substance: the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II; which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II. 21 U.S.C. §802 (32)(a) ANALOG STATUTES

19. §813. Treatment of controlled substance analogues A controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I. 21 U.S.C. § 813 FEDERAL STATUTE

20. The following acts and the causing thereof within the Commonwealth are hereby prohibited: (36) The knowing or intentional manufacture, distribution, possession with intent to distribute or possession of a designer drug.... 35 P.S. § 780-113(36) PENNSYLVANIA STATUTES

21. (vii) Synthetic cannabinoids, including any material, compound, mixture or preparation that is not listed as a controlled substance in Schedules I, II, III, IV and V, is not a Federal Food and Drug Administration-approved drug or not used within legitimate and approved medical research and which contains any quantity of the following substances, their salts, isomers, whether optical, positional or geometric, analogues, homologues and salts of isomers, analogues and homologues, unless specifically exempted, whenever the existence of these salts, isomers, analogues, homologues and salts of isomers, analogues and homologues if possible within the specific chemical designation: 1. Tetrahydrocannabinols meaning tetrahydrocannabinols which are naturally contained in a plant of the genus Cannabis as well as synthetic equivalents of the substances contained in the plant or in the resinous extractives of Cannabis or synthetic substances, derivatives and their isomers with analogous chemical structure and or pharmacological activity such as the following: (A) Delta-1 cis or trans tetrahydrocannabinol and their optical isomers. (B) Delta-6 cis or trans tetrahydrocannabinol and their optical isomers. (C) Delta-3,4 cis or their trans tetrahydrocannabinol and their optical isomers.... 35 P.S. 780-104(1)(vii) PENNSYLVANIA SYNTHETIC CANNIBINOID STATUTE

22. Basis for recent Daubert and Frye challenges Basis for Void for Vagueness Constitutional Challenges Dueling experts regarding whether a substance is “substantially similar” in structure to the Controlled Substance at issue “SUBSTANTIALLY SIMILAR”

23. US v. Brown, 415 F.3d 1257 (11 th Cir. 2005) US v. Fedida, 942 FSupp 1270 (MD Fla. 2013) US v. McFadden, 753 F.3d 432 (4 th Cir. 2014) FEDERAL COURT DECISIONS

24. State of Ohio v. Silmi, Cuyahoga C.P., No. CR 561754, Journal Entry and Opinion (Feb. 7, 2013) State of Ohio v. Shalash, 41 N.E.3d 1263 (Ct. App. Ohio 2015) Commonwealth of Pennsylvania v. Herman, 2016 WL 3597519 (Pa.Super. 2016); CP-67-CR-2400-2014 (Court of Common Pleas of York County) STATE COURT DECISIONS