Criminal Practice – DNA Evidence – Prosecutor’s Fallacy – No Prejudice – Rape & Sex Offense

State v. Ragland (Lawyers Weekly No. 13-07-0373, 26 pp.) (Martha A. Geer, J.) Appealed from Johnston County Superior Court (William R. Pittman, J.) N.C. App.

Holding: Even though a prosecution witness’s testimony about DNA evidence included the prosecutor’s fallacy, given other evidence – testimony from the same witness, physical evidence, and the victim’s testimony – we cannot say that the jury would probably have reached a different verdict in the absence of the prosecutor’s fallacy evidence.

We find no plain error in defendant’s convictions of second degree rape, two counts of second degree forcible sex offense, and sexual servitude.

The prosecutor’s fallacy is the assumption that the random match probability is the same as the probability that the defendant was not the source of the DNA sample. McDaniel v. Brown, 558 U.S. 120 (2010). In other words, if a juror is told the probability a member of the general population would share the same DNA is 1 in 10,000 (random match probability), and he takes that to mean there is only a 1 in 10,000 chance that someone other than the defendant is the source of the DNA found at the crime scene (source probability), then he has succumbed to the prosecutor’s fallacy.

The testimony of one of the state’s experts, Agent Sharon Hinton from the State Crime Lab, improperly relied upon the prosecutor’s fallacy. She effectively testified that defendant’s DNA profile matched the DNA profile obtained from the vaginal swabs and the panties and that the probability that a different, unrelated person in the general population was the source of that DNA was zero. The testimony therefore erroneously assumed that the random match probability is the same as the probability that the defendant was not the source of the DNA sample.

While this testimony was inadmissible, we do not agree with defendant that the admission of the evidence was plain error.

The state presented substantial physical evidence showing that defendant engaged in vaginal and anal intercourse with the victim.

In addition, Agent Hinton properly testified, “The probability of randomly selecting an unrelated individual with the DNA profile that matches the DNA profile obtained from the sperm fractions of the vaginal swabs and the sperm fractions from the cutting from the panties is greater than 1 trillion, which is more than the world’s population for North Carolina Caucasian, Black, Lumbee Indian and Hispanic populations.” This powerful DNA evidence was not rendered inadmissible because of the subsequent inaccurate statement based upon the prosecutor’s fallacy. Agent Hinton also gave similar admissible testimony about the DNA evidence obtained from rectal swabs.

Finally, the victim’s testimony described in detail two incidents of vaginal intercourse and one incident of anal intercourse. This testimony was corroborated by her prior consistent statements.

Given the properly-admitted forensic evidence, the expert testimony, the victim’s testimony, and the corroborating testimony, we cannot conclude that the jury would probably have reached a different verdict in the absence of the prosecutor’s fallacy evidence.

Defendant also argues that the state did not lay the “proper foundation” required by State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002), for Dr. Sharon Cooper’s testimony because Dr. Cooper conducted only a single, one hour and 20 minute interview with the victim and did not personally conduct a physical examination of the victim. We believe defendant has misconstrued Stancil’s reference to a “proper foundation.”

Stancil’s requirement of a proper foundation addresses the question whether the expert witness possesses the necessary educational and experiential qualifications to testify regarding the characteristics of sexually-abused children and whether the complaining witness possessed those characteristics. Defendant does not dispute that Dr. Cooper was properly qualified to testify as an expert regarding the characteristics of sexually-abused children. Therefore, the state laid a proper foundation for Dr. Cooper’s opinion under Stancil.

No error.