A 2013 murder case shows just how dangerous it can be to rely on DNA evidence, an expert said Wednesday.
DNA found under the fingernails of murdered California millionaire Raveesh Kumra led police to Lukis Anderson of San Jose. But after Anderson spent five months in jail, investigators found out that Anderson, a homeless alcoholic, had in fact been drunk and passed out in a hospital at the time of the attack.
Forensic analyst Karen Gincoo checks a tray of evidence vials from rape kits in the biology lab at the Houston Forensic Science Center in Houston on Thursday, April 2, 2015.Pat Sullivan / AP
He couldn’t have committed the murder. But investigators discovered that two paramedics who had picked up and moved Anderson also responded to the Kumra murder scene.
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Police determined that DNA from Anderson somehow got transferred to Kumra’s body by the paramedics.
It’s a perfect example of how modern, ultra-sensitive DNA techniques can lead police, judges and juries astray, says Cynthia Cale, a DNA analyst of both the University of Indianapolis and Strand Diagnostics.
“Research done by me and others at the University of Indianapolis in Indiana has highlighted how unreliable this kind of evidence can be,” Cale writes in a letter to the journal Nature.
“We have found that it is relatively straightforward for an innocent person’s DNA to be inadvertently transferred to surfaces that he or she has never come into contact with. This could place people at crime scenes that they had never visited or link them to weapons they had never handled,” she added.
“We asked pairs of people to shake hands for two minutes and then each individual handled a separate knife. In 85 percent of cases, the DNA of the other person was transferred to the knife and profiled. In one-fifth of the samples, the DNA analysis identified this other person as the main or only contributor of DNA to the ‘weapon’.”
DNA evidence once had to be taken from bodily fluids or fairly large bits of tissue. New technology means very small amounts can be picked up and amplified in a lab to get a reading, Cale noted.
“These subtleties are not usually explained in court. Instead, a jury is told that there is a one-in-a-quadrillion chance that the evidence retrieved from the crime scene did not come from a defendant. Naturally, the jurors assume that the defendant must have been there,” Cale wrote.
“We urgently need to review how DNA evidence is assessed, viewed and described.”
Maggie Fox is a senior writer for NBC News and TODAY, covering health policy, science, medical treatments and disease.
The False Promise of DNA Testing
One evening in November of 2002, Carol Batie was sitting on her living-room couch in Houston, flipping through channels on the television, when she happened to catch a teaser for an upcoming news segment on KHOU 11, the local CBS affiliate. She leapt to her feet. “I scared the kids, I was screaming so loud,” Batie told me recently. “I said, ‘Thank you, God!’ I knew that all these years later, my prayers had been answered.”
The subject of the segment was the Houston Police Department Crime Laboratory, among the largest public forensic centers in Texas. By one estimate, the lab handled DNA evidence from at least 500 cases a year—mostly rapes and murders, but occasionally burglaries and armed robberies.
Acting on a tip from a whistle-blower, KHOU 11 had obtained dozens of DNA profiles processed by the lab and sent them to independent experts for analysis.
The results, William Thompson, an attorney and a criminology professor at the University of California at Irvine, told a KHOU 11 reporter, were terrifying: It appeared that Houston police technicians were routinely misinterpreting even the most basic samples.
“If this is incompetence, it’s gross incompetence … and repeated gross incompetence,” Thompson said. “You have to wonder if [the techs] could really be that stupid.”
Carol Batie watched the entire segment, rapt. As soon as it ended, she e-mailed KHOU 11. “My son is named Josiah Sutton,” she began, “and he has been falsely accused of a crime.
” Four years earlier, Batie explained, Josiah, then 16, and his neighbor Gregory Adams, 19, had been arrested for the rape of a 41-year-old Houston woman, who told police that two young men had abducted her from the parking lot of her apartment complex and taken turns assaulting her as they drove around the city in her Ford Expedition.
A few days after reporting the crime, the woman spotted Sutton and Adams walking down a street in southwest Houston. She flagged down a passing patrol car and told the officers inside that she had seen her rapists. Police detained the boys and brought them to a nearby station for questioning.
From the beginning, Sutton and Adams denied any involvement. They both had alibis, and neither of them matched the profile from the victim’s original account: She’d described her assailants as short and skinny. Adams was 5 foot 11 and 180 pounds.
Sutton was three inches taller and 25 pounds heavier, the captain of his high-school football team.
The DNA evidence was harder to refute. Having seen enough prime-time TV to believe that a DNA test would vindicate them, Sutton and Adams had agreed, while in custody, to provide the police with blood samples.
The blood had been sent to the Houston crime lab, where an analyst named Christy Kim extracted and amplified DNA from the samples until the distinct genetic markers that swim in every human cell were visible, on test strips, as a staggered line of blue dots.
Josiah Sutton with his mother in 2003, a week after his release from prison. Sutton served four years for sexual assault before he was exonerated on the basis of faulty DNA evidence. (Michael Stravato / AP)
Kim then compared those results with DNA obtained from the victim’s body and clothing and from a semen stain found in the back of the Expedition. A vaginal swab contained a complex mixture of genetic material from at least three contributors, including the victim herself.
Kim had to determine whether Sutton’s or Adams’s genetic markers could be found anywhere in the pattern of dots. Her report, delivered to police and prosecutors, didn’t implicate Adams, but concluded that Sutton’s DNA was “consistent” with the mixture from the vaginal swab.
In 1999, a jury found Sutton guilty of aggravated kidnapping and sexual assault. He was sentenced to 25 years in prison. “I knew Josiah was innocent,” Batie told me. “Knew in my heart.
But what could I do?” She wrote to the governor and to state representatives, but no one proved willing to help.
She also wrote to lawyers at the Innocence Project in New York, who told her that, as a rule, they didn’t take cases where a definitive DNA match had been established.
Batie was starting to think her son would never be freed. But the KHOU 11 segment, the first of a multipart investigative series on the Houston crime lab, encouraged her. Shortly after e‑mailing the station, she received a call from David Raziq, a veteran television producer in charge of KHOU 11’s investigative unit.
In the course of their work on the series, Raziq and his team had uncovered a couple of close calls with wrongful conviction—in one case, a man had been falsely accused, on the basis of improperly analyzed DNA evidence, of raping his stepdaughter.
But in those instances, attorneys had managed to demonstrate the problems before their clients were sent to prison.
Batie hand-delivered the files from her son’s case to Raziq, who forwarded them on to William Thompson, the UC Irvine professor. Thompson had been studying forensic science for decades.
He’d begun writing about DNA evidence from a critical perspective in the mid-1980s, as a doctoral candidate at Stanford, and had staked out what he describes as a “lonely” position as a forensic-DNA skeptic.
“The technology had been accepted by the public as a silver bullet,” Thompson told me this winter. “I happened to believe that it wasn’t.”
Lying to get DNA evidence from innocent people should not be tolerated – Florida Courier
In 2018, Orlando police, using a relatively new technique referred to as “Target Testing” sought out family DNA information for use in a program called GEDMatch. The acceptance of such programs in court has yet to be fully determined.
However, a key component has been the use of family DNA voluntarily submitted in programs such as Ancestry.com and 23andMe.
Voluntarily submitted. That is the context for a second tragedy that has now unfolded. In October of 2018, Orlando police went to the home of Eleanor Holmes in Valdosta, Georgia.
There the police approached Mrs. Holmes at her front gate and asked her if she would consent to providing a DNA cheek-swab so that police could identify a possible relative in Orlando who had been found dead many years earlier. That was a lie.
Orlando police were actually looking for evidence to link Mrs. Holmes son to the murder of Christina Franke.
Not guilty plea
It is unclear whether police had sufficient evidence to form probable cause for such suspicion but what was clear is that police had already used this lie to trick other members of Mrs. Holmes family into providing a DNA sample.
The information gained from the police deception was used to ultimately charge Mrs. Holmes son, Benjamin Jr., with the death of Christina.
Benjamin has pled not guilty and it remains to be seen what role this largely unproven and deceptively received DNA evidence (the DNA not of the accused but of his family) will play in that trial.
Trickery is not ethical
Issues of the DNA reliability aside, the issue here is not the guilt or innocence of the accused but whether an American citizen not accused of anything, can be tricked into causing her child to be prosecuted.
Taking personal DNA information from private citizens, without a warrant and through deceit, is an outrageous, unreasonable and unconstitutional invasion of privacy. The Florida Association of Criminal Defense Lawyers in 2018 challenged the proposition that lies can be used to gain consent to enter a home.
That situation involved a defendant’s home. This situation is much worse. Mrs. Holmes is not a suspect and information from her body receives much greater Fourth Amendment protection than does the home.
The Florida Supreme Court has only approved obtaining saliva samples by deception-obtained consent only from a defendant who was already in custody pursuant to probable cause.
Protected privacy violated?
The Fourth Amendment protects all private citizens; the innocent perhaps even more than those suspected of criminal activity. The taking of DNA from a person not suspected of a crime, by lying to that person, in order to obtain evidence against her son, was shocking behavior.
It was also unnecessary. There was no indication of an attempt to obtain a warrant, or indeed, being honest with Mrs. Holmes as to the real purpose. She may well have cooperated in order to clear her son’s name.
Nor is there any indication that exigent circumstances existed that might justify warrantless action.
While there is precedent for allowing police to lie to a suspect after the suspect has knowingly, intelligently and voluntarily waived his or her right to remain silent, in order to obtain a confession there is no such precedent for innocent persons to be tricked into an invasion of their privacy.
Consent to a search obtained through trickery is not a valid consent particularly as to personal and private information within our bodies. Such information is entitled to the highest level of Fourth Amendment protection.
DNA information contained within our bodies, whether it be blood, urine or saliva has consistently been held to be protected by the Fourth Amendment from unreasonable removal from our bodies by the state.
Not only has such received Fourth Amendment protection, but such actions have been held to require a warrant in the absence of exigent circumstances. With the passage of 17 years, the situation can hardly be described as an exigent-emergency circumstance.
In 1968, the United States Supreme Court said that when police obtained consent to enter a home by lying about the existence of a warrant, such consent was invalid.
DNA doesn’t lie!
- … or does it?
- It’s one of the most-commonly-repeated statements in genetic genealogy:
- “DNA doesn’t lie.”
- It’s usually coupled with: “Families do.”
- And The Legal Genealogist isn’t going to take on either of those.
- But — as with almost everything in genealogy — there’s more to the story.
- And boy was that hammered home for me yesterday.
I’m in northern Virginia attending and speaking at the Professional Management Conference of the Association of Professional Genealogists. I gave the Friday keynote about professional ethics; Blaine T.
Bettinger — who blogs as The Genetic Genealogist — gave yesterday’s keynote about using DNA evidence to prove a genealogical conclusion.
Now before you dismiss this as pure fiction let me assure you, the member of the audience was telling the absolute unvarnished truth: this tested man had autosomal DNA that did not match that of his own biological mother.
How is that possible?
When the person tested has had a stem cell or bone marrow transplant. The autosomal DNA in that case will match the donor — and not the donee’s own biological parent.
And Blaine himself showed an example of a case where each and every one of us, looking at the result, would have concluded that the two people tested were parent and child. The one-to-one comparison of DNA at GedMatch showed 3586.7 cM of DNA in common and a 1.0 generation difference between the two.
There isn’t a man-jack among us who wouldn’t look at that and say parent-child. And there isn’t a man-jack among us who wouldn’t have been dead wrong.
- Because the two being compared were aunt and niece — the aunt happens to be an identical twin to the niece’s mother.
- Powerful evidence, isn’t it?
- So… should we stop saying “DNA doesn’t lie”?
- Because of something else that Blaine said that was even more powerful.
He reminded us that DNA alone can never be enough to prove a genealogical relationship. There’s got to be at least one more piece of information to be able to properly interpret the DNA evidence you get.
In the one-to-one comparison case, the one more piece of information we needed was that one of the people tested was an identical twin.
That one more piece of information would have been enough to stop us from making the erroneous assumption that this had to be a parent-child relationship and would have clued us in to the possibility (correct in this case) that the other person tested was the twin and not the parent.
In the no-match-to-mother case, the one more piece of information we needed was that the person tested had had the stem cell transplant. That one more piece of information would have been enough to stop us from mistakenly assuming that we were dealing with a case of misattributed parentage.
- No, DNA doesn’t lie.
- Our interpretation can be wrong.
- And in every single solitary case, bar none, without fail, we are going to need at least one more piece of information to be able to prove a genealogical relationship.
DNA can reveal lies and secrets
- In a search for their ancestors, more than 140 people with variations of the last name Kincaid have taken DNA tests and shared their results on the Internet.
- They have found war heroes, sailors and survivors of the Irish potato famine.
- They have also stumbled upon bastards, liars and two-timers.
Much of it is ancient history, long-dead ancestors whose dalliances are part of the intrigue of amateur genealogy. But sometimes the findings strike closer to home.
In one case, two brothers were surprised to discover they had different fathers. They confronted their elderly mother, who denied the most obvious possibilities — that she had been unfaithful to her husband, the man they had always known as Dad, or that one son was adopted.
“It has been traumatic for some to discover their true lineage through the DNA tests,” said Don Kincaid, a 76-year-old Texan who oversees the Kincaid surname project and witnessed the brothers’ ordeal.
As genetic testing becomes more widespread for medical information, forensics and ancestral research, more people are accidentally uncovering family secrets. Among the most painful are so-called “non-paternity events,” cases in which Dad turns out to be someone else.
“It’s going to be more and more of a problem,” said Dr. Eric Topol, chief of genomic medicine at Scripps Research Institute in La Jolla. Increasing numbers of people will be asking their spouses and parents: “What happened 25 years ago?”
The direct-to-consumer DNA industry sometimes warns customers of the possibility of unintended consequences. But company involvement stops there.
- The two Kincaid brothers declined through a spokesman to talk about their experience, calling it too painful.
- Others, with the benefit of genetic distance, are more philosophical.
- “I’m sure in the history of the Kinkaide family, there’s been some fooling around,” said 66-year-old Perry Kinkaide.
- “If that’s unique to this family, I’d be surprised.”
- Values and behavior
- How many of us are not our fathers’ children?
Can DNA tests tell us who we are? Only if we’re racists
Growing up in a homogeneously white Jewish family and going to a homogeneously white Jewish school, I always wondered if there was anything else to my family’s heritage.
Some in my father’s swarthy family liked to claim descent from Spanish Jews who fled the Inquisition to Poland — perhaps there was a reason for my affinity for Mediterranean food! And my grandmother liked to talk about her pale mother heralding from Sweden — maybe I had long-lost relatives in charming Stockholm!
As DNA tests grew more popular and affordable, my curiosity got the better of me. For about $100, a vial of saliva and a couple weeks of waiting, a company promised a pie chart revealing my ethnic ancestry.
The results came back. I was, according to the monochrome chart, “100% European Jewish.”
Looking back, I regret taking the test. Not because it confirmed the ancestry I could have guessed, nor even for the serious privacy concerns raised by giving my genetic code to a company.
What I regret is the ease with which I accepted the racist implications underlying the test: a desire to understand who I am through DNA.
In using DNA ancestry tests, we reduce the culture and lived experience that have long defined ethnicity to a biological, racial signifier that is neither especially relevant nor particularly accurate. By joining in, I inadvertently bought into the dangerous notion that who we are lies fundamentally in our blood.
There’s no putting the genie of DNA testing back in the bottle. But instead of allowing it to cement racialized ways of thinking, we can use these tests to highlight how meaningless genetic ancestry is compared with the many other factors that shape our experience of ourselves and our communities.
That’s exactly what happened in 2018, when Sen. Elizabeth Warren released a DNA test that indicated distant Native American ancestry.
In many ways, Warren was just using the same flawed, racist logic that I — and all other DNA testers — followed.
Native American leaders rightly pushed back at the time, but the rest of us should, too, when people put undue weight on the findings of these kits.
How Pocahontas — the myth and the slur — props up white supremacy
For most of human history, the concept of peoplehood — of belonging to a group larger than one’s extended family — has been largely determined by shared cultural practices (such as religion, customs and language) or political institutions. Even when groups have claimed common descent from mythological figures, as Han Chinese do, “blood relations” have remained a smaller and unverifiable component of peoplehood.
Forensics gone wrong: When DNA snares the innocent
On a Tuesday morning in Boise, biologist Greg Hampikian is on speakerphone with Christopher Tapp, an inmate at the Idaho State Correctional Institution. Tapp is in prison for a murder he swears he did not commit. Many others think he’s innocent as well—lawyers, journalists, an organization of former judges; even the victim’s mother.
No one has fought for him longer than Hampikian, a researcher at Boise State University (BSU). “How’re you doing, Chris?” Hampikian begins. “I’m having a good time at summer camp,” Tapp says gamely. “Although you know me … I’m in the hole again”—solitary. “There was a mutual misunderstanding between me and someone else.
” He mentions that he and his wife are getting divorced.
“I’m really sorry Chris, that’s a lot to deal with,” Hampikian says. “You know my offer still stands. I’ll pay tuition for any courses you want to take.” A pause. “You know we got a decision from the court to move forward with a new DNA test. But the court is only allowing us a limited amount and we have to decide which test is the right one.”
I don't think people are evil, but once they are convinced of a story, they protect it.
Tapp has been in jail since 1998, serving a 25-years-to-life sentence for the murder of a 19-year-old woman named Angie Dodge; he confessed after a series of lengthy interrogations that several experts have described as coercive. Police found plenty of male DNA at the scene, and it did not match Tapp's. But the prosecutor and jury believed his confession.
Read more of our special package that examines the hurdles and advances in the field of forensics
Can a Paternity Test be Wrong?
The outcome for a families future can often rest on the results of DNA tests.
Whilst you may or may not have ever been involved in the paternity testing process, it can often induce a great deal of emotion, anxiety, and fear for those who are.
The outcomes have such important consequences that the result must be delivered with absolutely certainty. Those who take a DNA paternity test are incredibly courageous wanting to know the absolute truth.
With the concept of accuracy playing such a dramatic role in the process of paternity testing, people commonly ask whether a paternity test can be wrong. We are going to help clear this up.
Paternity Fraud and ‘Mistakes’
It is believed that paternity fraud in the UK is relatively uncommon, occurring in just 1.6% of cases (as found in a 1999 sample). Recent data on the subject is lacking, but it’s important to know that paternity fraud is not a criminal offence itself if accidental.
However, knowingly making a false statement on a public document is a criminal offence. If a woman knows a man is not the biological father, she cannot name them as the father.
In 2019, the first prosecution of this law occurred in Swansea, Wales, with the mother being sent to prison for 8 months for lying about the paternity on the birth certificate – allegedly to spite the biological father.
What types of paternity fraud are there?
There are many reasons why paternity fraud may take place, but we’d rather not discuss and speculate as to what they may be. Instead, see below for ways that the data can be manipulated:
- If using a private DNA testing kit, such as a home-testing kit, the mother can submit the DNA for a (different) child whom she is certain belongs to the possible father, in order to ensure the child in question receives a positive match result
- If the man accused of being the biological father uses the DNA of another man in order to achieve a negative result on the test
- If posting DNA to be tested, the samples may be swapped or tampered with intentionally in order to achieve negative results
Note: Potential tampering in testing cases can be avoided thanks to the rigorous procedures employed by DNA Legal.