ALLAN JOSEPH LEGER
TRIAL held
David
before
M. Dickson
Brunswick,
,
\
Honourable
and
a Petit
commencing
A. D. 1991,
at 10:00
on the
Mr. Justice
Jury
at
Burton,
26th day of Au
in the forenoon.
APPEARANCES:
Graham J. Sleeth,
Esq.,
Anthony Allman, Esq., and
John J. Walsh, Esq.,
Weldon J. Furlotte,
>"-
Esq.,
for
the Crown.
for the Accused.
. . . . . . . . . . . . . . . . . . . . . . . . .
Proceedingsof October
Dolores
Brewer,
Court Reporter.
copyright 1992,
Department of Justice,
Province of New Brunswick.
16,
1991
is to be made
10
for cross-examination
counsel for the Accused.
decision
made
I am fully
by my colleague,
Mr. Justice
in which
he expressed
that witness
attached
to indictments
been
lists
and really
the case
since
from the Criminal
witnesses
1959 when
Code which
to be included
I am inclined
why
of no account
to agree
that provision
with
was
are
and such h
required
was
rem
a list of
of an indi
his views
in was before
Stev
the vi
a section
on the back
b
cognizant
in R. V. Arsenault
superfluous
15
available
that
the
1959 we ha
20
Grand Juries and Petit Juries.
Petit Juries we
In th
the 12 person juries that we have today.
days they were 12 men juries because females we
not allowed, I guess, to serve on juries.
25
Grand
Juries
numbers
were,
were
but they
the Provincial
Court
in determining
whether
to put an Accused
30
to hear
lawyers
"8;,
served
Judges
listed
else
call
just what
the purpose
or Magistrates
there's
They would
or anybody
I forget
on trial.
the witnesses
indictment.
4; '02,
juries,
sufficient
The Grand
present,
into
they
th
of wh
do t
evide
Juries
on the back
them
But
u
of the
a room,
interviewe
that
an accused
course
10
not be sent up for trial
they heard
all of the witnesses
unles
listed
indictment, and that was the reason for the re
ment at that time that the witnesses be includ
Now,
since
the removal
as far as I I m concerned
always been the practice that the witnesses
-
crown witnesses be listed on the indictment.
15
has been a bit of looseness in that practice r
because
frequently
Motions
Day,
when
indictments
as we now call
are prefer
it, or have
called
recent years, the witnesses may not be listed
Crown always gives an undertaking that they wi
20
provide the Defence with a list of the witness
immediately and that list is attached to the
ment
when
the Accused
is rearraigned
at the a
trial.
In this
25
December
drew
case
5th when
attention
counsel
will
the indictment
to the fact that
recall
was
the
that
on
preferred
list of wi
was not included and counsel at that time und
to provide
30
that
immediately,
and they
did.
N
sole question it's agreed - or it's common gr
here that the name of Sergeant Poissonier was
initial
45
'02;
4185,
list.
It was taken off, apparently,
be wedged
10
in between
the end or at the end of the week
or the beginn
next week
up to the Cro
or sometime,
and presumably
advised
Crown
as to what
prepared.
1~
some of the DNA witnesses
Now,
but that's
Counsel
their
can keep
intentions
I make this
Defence
are so he
order subject
to thi
caveat, that I am not totally convinced that S
Poissonier
really
would
have very much
in a cross-examination.
was provided,
The will-say
as indicated
that he was being
called
by Crown
initially
to contr
statement
Counsel,
only
s
to prov
20
continuity of possession of the identity
identity
exhibi~
necessary
to prove
that particular
I would
and why
it ever would
the continuity
exhibit
have
be
of possession
is not totally
say that the Crown
the
-
certainly
clear
when
t
they
25
him
from that were
acting
the necessity - can't
view what
30
the necessity
would
clear,
right
of Mr. Furlotte's
now,
and I don't
him.
the cross-examination
.4/851
see from
absolutely
cross-examine
453025
wisely
because
I can
the Crown's
poi
be.
But
want
to get into
reason
I am no
for wanting
There was some suggestion
would
pertain
to why
som
wouldn't
be admissible.
is that before
10
voir
dire
fully the
he's
at that
So the only
called
I think
session
thing
I ca
we should
and I should
ha
hear mor
have a little better idea of the ty
-
of questions
that you would
be asking,
instance
Mr. Furl
on the cross-examination.
For
suppose
witness were to be asked
did you, having heard
15
evidence from the artist that he prepared a ske
and
from a witness
the artist
what
that
features
he gave
the instructions
to incorporate
sketch, suppose Sergeant Poissonier
20
suspected
that
he may have
told
-
in this
or defenc
the artist
now
make that look as much as you can like a certai
person, like the accused or some other person,
you wanted to ask him that question, did you te
the artist before that composite photo was draw
25
it should be made.
here.
I don't suggest that this bears any rese
to fact.
But if that were the case then he co
cross-examined
influence
30
'> cOb
"b"
that
I mean I'm inventing a situ
on that point.
the witness
he told
Or if he tried
who had described
the artist
to incorporate
that would
be admissible
certainly,
but to get down
to
the fea
in the d
on cross-examination,
to whether
or not th
I think
what we
in us putting
should
do is this.
Sergeant
Poissonier
There's
no
to ask him
10
I thi
or four questions about the composite.
should voir dire the whole of his evidence be
what I propose to do now in light of His Lord
ruling,
I will
you yourself
put him on and
do, what
I'll ask him wha
can you yourself
tell u
15
your own knowledge, then you will know what h
say and see if we need
Furlotte
can then
to ask him
20
missible
him
ask him whatever
Mr. Furlotte
at the end of the day there
25
and we don't
Crown's
purpose,
I don't
see any point
has ruled
he wants
there
to ask that
we just voir
30
THE COURT:
Well,
need him
dire
to ask.
for the very
in putting
have
to cal
him on, askin
index,
any questions
aren't
and the
if Your
any questions
So why
of Sergeant
that may be the best.
Lor
of the o
are admissible.
the whole
an
are no admissible
a composite
not asking
there's
wants
then we wouldn't
if he once handled
Furlotte
questions
and you can see whether
questions
questions
for that purpose.
Poisso
I was
tryi
shorten - or thinking of shortening him up as
as possible.
It may be that Mr. Furlotte,
mi
having given thought to this and having given
4'
',-0;"
4'"'
Furlotte,
that you will
there's nothing
10
feel in the long run th
that you really
can cross-examine
Poissonier on, or that you would want to cross
examine him on.
And if that's the case then t
the Crown and we can forget about the whole th
or they can forget about calling him.
leave
it up to counsel
to discuss
But I w
and work
out
15
arrangements.
If you
are subjects
on which
perhaps
we will
Allman
into
has
feel, Mr. Furlotte,
you want
follow
the
that
to cross-examine
suggestion
just put up and have
that Mr.
a full voir
di
it.
Surely it wouldn't take more than an
and a ruling can be made at the end of that.
20
I'll deal with the other matter later tod
So could
(Jury
25
in.
we have
Jury
called,
CROSS-EXAMINATION
Q.
Doctor
Waye
the
before
of the
30
of your
CONTINUED:
I go on today
-
educational
jury here.
I think maybe
or a little part of
procedure
4.B'
for the
I believe you stated DNA is
basically that's a universally-accepted theory
all cells in the body are the same?
.0 3020
now
all present.)
OF DR. WAYE
will just do one little
viewing
jury in, please,
many,
many
times
So the cells
forming
all the cells
in your hand
or in your
in your
hair
roots
10
in your
blood
from your
Q.
And
father
No,
that's
clones
of those
two c
and your mother.
from the time you're
the sequence
A.
are actual
of your
born
until
base pairs
not true.
There's
the time y
never
changes?
no absolutes
in
15
biology.
From
the time you're
you die you mutate.
change
have
20
So there
the DNA in a cell.
tumors
molecul~
that's
say in a lung cell
lung tumor.
are
For
generally
born
until
the
factors
example
a change
that gives
that
when
peo
in the D
rise
to
So you have a change in the DNA i
lung cells that makes that one particular regi
the DN~ let's say controls for growth factors
whatever that keeps the cell in line, it mutat
25
cell goes
out of line,
that has perhaps
other
30 billion.
and you have
one base
change
So they're
relative
30
"30;',
4'"'
in all practical
an absolut~
purposes
- or
no they're
they
of
to t
not the same.
one base pair changed in 30 billion
So if you want
a mass
in 3
not the
are the same.
T
Now, these are supposedly your scissors here i
darkened area?
10
What number is that?
THE COURT:
MR. FURLOTTE:
This would
be P-158(7).
darkened
area would
be your
So in between
restriction
fragmen
length?
151
A.
Yes, those sites would
Q.
And
for each person
very
define
a restriction
the sequence
fra
in here would
similar?
A.
Could
Q.
So your
be very
similar,
target
yes.
DNA and your
probe
will
in your
process and here on P-158(6) --
I
A.
Yes.
Q.
So this would be your probes up here?
A.
Yes.
Q.
And
it would
screening
25
If that's
Q.
Say
A.
in here?
the locus
you're
looking
45,025
4/651
the
locus we're
purposes.
to a sequence
Similar.
to like
length
if that's
attach
and it would
fragment
for example
30
through
out and attaching
on to this
A.
be going
Now,
the same
a homing
d
at, yes.
looking
that
be
at.
target
as here?
It'
DNA wi
be invariant:
difference
sometimes
here
there
may be a base
and the probe
may
correspond
t
10
form or the other
hundred
percent,
homology
but the probe
or high
it recognizes
Q.
so it's not a hundred
So when
likeness
percent
certainly
bears
to its target.
That
it.
you get a match
off your
first probe,
15
say you run
a probe
known
and an unknown
sample
identical
base
and you get a match
pair
sample,
sequence
betwe
it could
or it might
b
be a
different?
A.
Well
almost
it will
I
Q.
certainly
be a little
But if it comes
the identical
A.
I
25
Well
.~ ]O2~ :418~'
would
as well.
that's
not the source
you work
dealing
with
self will
same person
have
it should
to be derived
The probe
comes
of your
in Alex
Jeffreys'
from one individual,
correspond
to that
isolated
from and only
isolated
from.
that
from t
from one sour
target
the one on chromosome
once
of these
pairs?
person
isolated
30
from the
course,
the length
different.
base
the probe
over
unless,
o
lab where
w
one,
it was
so the prob
one individual
one individual
it
it
me because
we have
different
repeat
lengths,
n
This
i
10
of repeat
Q.
But what
result
units.
I am getting
of a test,
at is if we --
like of the autorad,
the x-ra
picture.
15 I
A.
It's a schematic,
Q.
A schematic,
Band
yes.
which
would
be 158(10),
and in la
C they look very similar.
A.
Yes.
Q.
Right.
So they could
be identical
in base
seq
and length.
I
A.
Yes.
Q.
Or there may be a variation
length
even
result
now.
A.
Yes.
Q.
So your
though
they
in sequence
look
identical
and in
on the
25
could
length
30
probe
that
when
it attaches
fragment
A.
No.
Q.
How much
A.
That would
yesterday.
,'."
l
be out by 10% of th
of the probe?
could
it be out?
be - you're
off in the tolerances.
'S ':020
length
to a fragment
10% --
probably
I think
two or threefol
we discussed
th
Q.
10
I A.
They
What's
all vary.
I would
Several
be guessing.
Couple
the average?
Q.
Two thousand each probe.
A.
That's
I don't
a guess.
have
base
pair
Two thousand.
thousand.
don't
thousand
that
have
information
a calculator
with
and
me.
15
Q.
So the probe
may be the exact
same
length
as th
fragment?
A.
If it were
it would
individuals
probe
20
give different
is this
this person's
length
have
25
Q.
Okay,
but
fragment
exclusions
you would
A.
30
length
it by definition
people.
fragment
I'm more
lengths
call
that
that
p
about
that
not
so much
different
are similar
and
and wh
a match.
I think I just explained to you that if the pro
were
isolated
length
which
from this person
isn't
this
length.
answer to your question and --
.~ '025 ,4185,
we know
are visibly
but the ones
is not th
lengths.
concerned
that
I
to correspon
So if you picked
be luck because
dif
lengths.
and it happens
it would
different
fragment
length
as these
example
Remember
be just luck.
it would
I think
be this
that's
I
Q.
Now,
you call
that match
because
they
have
tra
10
a similar distance
difference
-
or you can't distinguish
in the distance
that
they
travelled
the top of the gel.
A.
Yes.
Q.
So you call
it the same
length
and you call
i
15
match
but it doesn't
necessarily
same fragment length, does
A.
No,
just
mean
they
are
it?
because if we go back to your question, a
said
called
it so I do remember,
it a match
you
and you called
just
said
it the
same
20
I didn't
call them
a match.
I called
them
2S
I
the same
'S "J2S "as I
them
length.
Q.
Oh, I don't
A.
You
Q.
I'm just trying
remember
just said
to be the same
301
the same
A.
Same mobility.
Q.
Same mobility.
A.
Correct.
length.
a visual
match.
So I didn't
calling
I called
them
You
c
say that.
the same
le
it.
to say that you are determinin
-They
travel
the same distance?
I
10
They would
be the same
Q.
They would
be.
A.
Correct.
Q.
And
A.
Correct.
Q.
But there's
right
down
Even
length,
right
yes.
down
to the base
pa
to the sequence?
no way we can tell
that with
your
Just that they travelled similar distance down
top of the gel.
A.
The test
Q.
Now, maybe,
jurors,
isn't
designed
just again,
whenever
you have
to do that,
to refresh
no.
the minds
you get the results
set up a binning
system
and
o
of this
say we're
20
paring Band
C again, lanes B and lanes C, so
this particular
25
binning
system
27 bins
that you will
lengths
and place
which
A.
Yes.
Q.
So we don't
have
I have
the
was
30
probe
The
that you've
you have maybe
them
zero to eleven
I worked
the binning
3rd, 1990
all the fragment
lengths
hundred
on was
27 bi
in evidence
but m
Distribution'
and for bin one they
which
would
and ninety-six
That would be appropriateor --
"' ]OO~ .4;8',
f
in?
'Rebin Population
on December
I believe
sort out the different
last data base
here
run you have
measure
base
f
pai
pairs.
That basically would be the fragments
bottom
10
Bin two would be from ele
of the gel.
Bin thre
ninety-seven to thirteen fifty-two.
thirteen fifty-three to fifteen 0 seven.
Bin
fifteen
And
0 eight
to sixteen
go on and on and on until
Q.
So except
thirty-seven.
you hit bin twenty-s
for bin one which
carries
from one
15
pair
cover
up to eleven
anything
hundred
and ninety-six
in the range
with
eleven
which
hundre
ninety-six pairs, thereafter they're roughly
thing with about a hundred and fifty base pai
difference would fit into the same bin.
20
A.
No, the bins themselves along the length of t
are spaced roughly at uniform physical distan
along the length of the gel.
on a gel does
25
not linearly
of base pairs,
correspond
that
of the gel and most
more
up here
by the number
30
.<1851
certainly
So at the top a half
thousand
base pairs
certainly
pairs
will
DNA fragments
of base pairs,
they
in this
correspond
don't
sepa
separate
by
an inch might
and at the bottom
be less
to a nu
an inch here ma
base
weight.
inch would
45 J025
because
correspond
is a half
to five hundred
A physical dist
than
b
a half
that.
So i
A.
numbers
T
It's not based on features.
Arbitrary --
themselves
are chosen
with
a very
spec
I
10
point
in mind.
known
size
and they
evenly
spaced.
were
that went
They
into
that was
corresponded
corresponded
There
was
over,
to fragments
scientific
It was
that decision.
labored
to fragments
again,
madn
a decisi
by the technical
15
working
group,
decision.
how to do it, and it was
It wasn't
hand-waving
a rati
or an irratio
decision.
Q.
So is your
binning
the same as the FBI's
or do
have -20
A.
It's very
Q.
Fragment
A.
It differs,
similar.
lengths
experience
25
almost
so it's
it's
and
when
a year
again,
I was
that
bins?
I'm speaking
there,
to the date
something
similar
in different
this was
after
I didn't
to the data
from my
bases
generate
I left
work
the
R.C
on myself
I worked
on an
you have is at the end - the bins at the very
are different
30
middle
that we
45 3025
4/BS,
in both
systems.
is the same where
study.
the
Everything
fragments
in
actuall
of different individuals?
Say
like a thousand
10
people
this
A.
and then maybe
one hundred
would
fit into
line here.
You would
divide
it into corridors
or bins
and
you analyzed a thousand people and a hundred
found
a hundred
bands
there,
so you're
-
analyzing
15
thousand
bands
people,
you have
and a hundred
hundred
divided
frequencyof
looked
at two thousand
fell in there,
by two thousand.
it would
be
That would
be
an observed frequency of bands t
-
That's
fall within that size interval.
all it
20
Q.
Now,
the method
and for doing
I would
25
A.
that
by your
There's
think
your
assume
scrutiny
that you
set up for doing
calculations
a lot of different
of any aspect
on the probabili
that has went
scientific
It's
certainly
unless people
aren't
reading
under
some
community.
issues
of the test
to scrutiny.
the t
there
and
that hasn't
all been
I c
bee
published
it it's been
open
t
scrutiny.
30
Q.
But this would
be proposed
to be a great
discoveryto be able to identifyor --
.5,0.'5 './65,
scient
forensic
10
A.
I think
field would
they were
them more
Q.
Right.
discriminating
about
up and down?
a new test
tha
power.
write
it to the scientific
call peer
A.
excited
And they would
submit
15
be jumping
up their
findings
community
for what
review?
When they had work that they thought was at a
to be published
it would
be submitted
for peer
yes.
Q.
And you
submitted
some work
You have
procedures?
on this
submitted
type of fo
it for peer
re
20
yourself?
A.
Yes,
I have
published
do go through
2S
And would
you explain
A.
Generally
you
It varies
with
since
4S,02S
A/BSI
submit
the process
and
different
so many
journals.
discretion
different
revi
to the edito
out to have peer-reviewed.
there's
area
of peer
a manuscript
at the editor's
the paper
in this
review.
Q.
totally
30
peer
papers
Sometimes
who he will
Other
t
subspecialties
will actually ask you to suggest people to pe
view
it.
your
recommendations
Just
suggestions.
He doesn't
or follow
your
have
recommenda
into consideration,
10
the paper
into
and his own personal
consideration
and write
opinio
back
to
author and tell them that it was rejected, it s
be revised in this
revision,
They
manner, or was accepted wit
or it's more
often
say that.
suitable
It's
for another
a good paper
jou
but
it'
15
suitable
more
for my
journal,
specialized
journal
may
I suggest
or perhaps
you go
a more
gene
for I suppose
that
journal.
Q.
Okay.
And
once
being
accepted
it's accepted
for publication,
it doesn't
nece
20
mean
that
there
A.
No.
as being
It means
process
251
Acceptable
A.
Yes.
Q.
Not
301
4185'
your
that you
state
and absolute?
it's gone
through
deemed
this
peer
revie
acceptable.
as being
factual.
They
don't
nec
opinions?
They have looked over the work and they agree
they
cally
45 .10;>5
true
everything
for publication?
accepted
accept
accept
and it's been
Q.
A.
they
agree
sound
to publish
and that
they
agree
that
as is it should
it's
sci
be publish
energy
10
A.
or the
Yes. It's -audience
in doing
You know,
fairly
focused
I believe
not a wide
They're
journals.
They're
journals.
so.
there's
for some of these
technical
Q.
interest
journals
that
have
audience.
you were
the co-author
of an article
15
entitled
"The Fixed
Evaluation
Data
-
Bin Analysis
of Continuous
for Statistica
Distribution
of Alleli
From VNTR Loci for Use in Forensic
Comparisons".
A.
Yes.
Q.
And how many
20
A.
drafts
would
get through
There
was more
were
a peer
than
FBI.
That was Doctor Budowle
So handling the revisions and redrafting
his responsibility
the co-authors
stantially.
pape~
decisions, etc.,
45 3025 '4/85'
and that
generally
if it doesn't
So I would
Subsequent
reviewers
bility
that
I wasn't the corresp
paper to meet the referees'
30
before
review?
one.
author of that paper.
25
necessary
drafts
comments
were
change
contribute
the paper
to the init
and revisions
Doctor
and he did do those
doesn't
based
Budowle's
because
on
respo
it did get
fixed
bin analysis
in a public
It had
forum.
10
presented
going
many,
back
had been
Q.
Now,
many
probably
times
about
at meetings
two years
over pe
before
published.
do you know whether
dissenting
views
or not there
on that paper
was
any
or even
just th
general procedure that the FBI and the
R.C.M.P
15
using
to draw
making
A.
the
calculations
on the probability
matches?
Well
in the courtrooms,
real
scientific
which
I don't
forum of lawyers
consider
disagreeing
w
20
scientific
Q.
Let's
A.
Outside
views
just take
paper.
I did
The paper
into their
exact
not everything
an abuse
30
Q.
not
scientists
the courtroom
for now.
well
there
were
comments.
in the paper
of the process
views
are anonymous.
of
I won't
The paper
they
the refe
opinions
did get published.
comments.
I
they're
see the referees'
their
was
agreed
revi
with.
for me to sit here
and
The referees are anonymous: t
just want to get a general view here, Doctor
aside
4> :<02' "6>,
outside
the courtroom
opinions.
25
because
from the referees for the peer
review
aft
in a courtroom?
J
Q.
Yes,
A.
There
in proper
was
scientific
one editorial
scientific
form.
that
I am aware
of in
journal.
Q.
And who was
A.
Eric
that
Lander.
from?
Doctor
Eric
Lander.
And
it wasn't
15
really
an endorsement,
Q.
Was
there
many
not special
technique?
20
It was
a criticism.
parts
-
of that
panels
Scientific
I think it was m
article.
set up to study
panels
y
set up to study
technique?
I
A.
To study
Q.
Yes,
binning
to study
itself?
your
claims.
Let's
just put
it
broadly.
A.
A panel
to study
our claims
as expressed
paper?
Not
I am aware
of, no.
that
in th
251
Q.
301
What
about
the Congress
of United
Technology
Assessment?
Are you aware
A.
The O.T.A.
Report,
Q.
O.T.A.
A.
That
was
of that
yes.
researched,
that paper
response
4', :.C?; 4'8;,
Office
Report.
report
before
States
was
authored
ever published
to that paper,
sir.
and
finis
so it's n
O.T.A.
had a commission
to look
into DNA typing.
10
Q.
They
look into
thousands
of different
Yes,
but you are --
All
went
into the R.C.M.P.
Lab in Ottawa
been
borrowed
the technology
from the technology
systems
in the United
I don't
think
issues.
has
that h
let's
that went
s
into
States.
15
A.
States.
We work
Q.
shortchanging
myself
included,
them
if you
Report
also
A.
It could.
Q.
It would,
A.
I think
Q.
Is there
apply
I just
great
or that
calculations
A.
That's
the
of Technology
to the system
is that
would
Assessm
that
is se
it not?
right?
said it could.
concerns
in that
it is not valid
report
that
as to the probabilities
matches?
30
scientists
States.
lab in Ottawa,
not could,
I th
in developing.
say we borrowed
in the Office
would
from the
a lot of Canadian
Any concerns
proper
40 J02~' 4/65,
technology
from the United
in the R.C.M.P.
25
with
you're
technology
20
we borrowed
not stated
in that
report.
that
it
you can draw
of making
10
Read
the statement
with
it.
he wants
I'll have
and let the Doctor
an opportunity,
I expect,
o
redirect to also get into the O.T.A. Report.
MR. FURLOTTE:
Report
leave
First, Doctor, let's get into the O.T.
and their
population
finding
about
genetics
the basic
test.
out and the area
of
15
calculating
But the basic
frequencies.
Assessment
finds
DNA tests
are both
reliable
performed
and analyzed
that
forensic
and valid
by skilled
th
"The Office
found that -- on page 7 it states:
Technology
test
uses
when
prop
personnel.".
20
'are aware that they made that statement?
I
A.
It probably says that, yes.
It was
an endorsem
of the technology.
Q.
251
And
that's
an endorsement
making
matches
A.
That's
an endorsement
Q.
So the
first
in running
or making
stage
of running
exclusions
of using
of your
the testings
this
procedure
themselves
your
gels
-RFLP
techno
at forensi
they
found
to be reliable?
30
A.
Yes.
Q.
Do you know whether
technique
4; 202S 4/8S'
or not they
of calculating
validated
the probabilities
the
of
over population
frequencies
several
forms",
and they
report,
pages
and RFLP
analysis
t
10
to state:
bias
population
the pages
in the
16, 17, 29, 57 and 69, and it goe
"General
potential
state
agreement
that
could
frequencies
exists
result
that
any
from calculatin
be conservative,
i.e.
in
15
favour
of the defendant.
are raised
bases
A.
:4105;
and whether
they
da
ade
as currently
one area of their
concer
like to focus
on a lot of references
to
there.
We're
with
re
dealing
a report
and written
bringing
it into
1991 which
is meant
to do.
We're speaking of data bases
were
in place
several
that
the people
that
So you're
bringing
several
years
who wrote
exist
years
that was
searched
then.
45 3025
population
of inclusions
That was
questio
I would
data bases
30
existing
applied
calculations
practiced."
20
25
about whether
are properly
support
Nevertheless,
I don't
ago.
something
it into the future.
think
I know
it didn't
now because
taking
ago and you'
have
they
the
for a
access
didn't
from the past
Q.
After
the O.T.A.
problems
Report
of population
was
it recommended
genetics
that
and the calcula
10
procedures
National
A.
I think
used
by the R.C.M.P.
Academy
you'll
'R.C.M.P.'
be studied
by
of Science?
have
in that
a hard
time
finding
the wor
That's a U.S. repo
report.
The O.T.A. didn't recommend anything about the
15
R.C.M.P.
Q.
Let's
go with
Corporation
States,
20 I
the system
and Cellmark
let's
take
those
used
by the FBI,
Corporation
Lifec
in the Un
entities.
A.
Okay.
Q.
Okay. The R.C.M.P. basically follows the same
cedure as Cellmark, Lifecode, and the FBI?
A.
No.
Q.
Pardon?
A.
No.
Q.
No.
A.
I wouldn't
251
Not basically?
--
differences
R.C.M.P.
30
45 :!OJ' "8',
There's
between
Lifecodes
that there's
Q.
Okay,
A.
Differences?
Q.
The
tell me what
fundamental
so many
no way
they
fundamental
and Cellmark
I could
agree
and
to
are.
They use a different -differences.
What
are they?
meaning
at all to the jury because
they wouldn'
10
have
the slightest
are.
idea of what
Mr. Furlotte
don't
lay some foundation
MR. FURLOTTE:
A.
Yes,
I
through
Do you know what
testing,
151
you think
here
it's a private
both
Lifecodes
you've
for paternity
Corporation
that
testing
does DNA
and forens
Q.
And
A.
Yes.
Q.
So basically they do the same thing the
A.
got
this witness?
Lifecodes
corporation
and
for forensics?
does
in Ottawa
They
approach
R.C.M.P
for forensics..
similar
questions
with
similar
techniques.
Q.
Similar
techniques.
different
A.
according
No, you're
asking
are fundamentally
251
Q.
And what
Which
about
are fundamentally
to you.
about
the testing
procedures.
different.
Cellmark
Corporation?
Same
thi
Lifecodes?
A.
301
It is a separate
again,
using
4, :'O2'4'~'.
does
distinct
paternity
DNA analysis.
private
testing
and
company
forensic
that
tes
10
I
Q.
So they're
A.
They're
basically
not
fundamentally
same organization.
Q.
I'm not talking
about
15
I
the same,
It's not
different.
It's not exactly the same
about
I'm t
the organization.
the test procedures.
A.
In my view
Q.
And
A.
-- the test procedures
--
the theories
are different
that you'd
FBI.
that you relied
are more
so of those
pair
They're
20
Q.
the FBI?
up would
the most
on.
similar
than
t
four groupings
the o
be the R.C.M.P.
and t
similar.
On page 66 of the O.T.A. Report it says:
"Sta
with the frequencies of the individual bands a
assumption must be made that each represents
statistically independent events."
here
25
an assumption
making
assumptions
A.
Could
I read that,
Q.
It says
bands
30
that
"Starting
an assumption
statistically
THE COURT:
must
in regards
with
to that
the frequency
must
be made
Are you
today?
of the in
that
each
rep
events."
to see the whole
like to look at the book?
.5 ,025 .'85,
be made.
please?
independent
Do you want
And it say
page?
Woul
that
these
are Mendelian
markers
and that
they
10
the rules
That's
of Gregor
Mendel
the assumptions
Q.
Right.
A.
Markers
on different
principle
who
that
founded
they're
alluding
chromosomes.
of genetics
that
they
genetics
It's
segregate
t
a fund
in-
15
dependently.
So, again,
that
assumption
much
like making
every
you m
you go to work.
It's a basic
that
the sun w
premise.
Q.
It's
A.
It certainly is.
Q.
Assuming the sun will corneup tomorrow is assu
that strong an assumption, is it?
a future event.
here
2S
day when
the assumption
corne up tomorrow.
20
as a geneticist
A.
you're
The conclusions you're drawin
assuming
past
events
and present
I think it's fairly reasonable to assume that
sun is going
to corne up tomorrow,
sir.
I coul
wrong.
30
Q.
Let's
A.
You asked the question.
Q.
Well
A.
That was my opinion, the sun's going to corne
stay in the same ballpark,
how about
tomorrow.
45 :<°'5
4/85,
a reasonable
Doctor.
answer?
you're talking the frequency of this bin
bein
independent of the frequency of this bin
or -
10
I'm trying
Q.
to understand
Let me go on then.
can explain
what
Weinberg
A.
Q.
It's
Hardy-Weinberg
a formula
A.
25
Q.
types
in a population.
Well,
the
to predict
precedent
there's
A.
a number
frequency
frequency
must
there
of conditions
are assumed
for a system
equilibrium
or to meet
theoretical
idea put forth
with
it there
hold
true
of
of ge
be to
were
about
80 years
assumptions
ago
made
w
populations.
in the scientific
population
that you
genetics
It's
Hardy-Weinberg.
several
for human
in that
to be in Hardy-weinber
Is it not in dispute
cannot
communit
assume
Ha
in DNA analysis?
Hardy-Weinberg
don't
;41851
genetics?
for predicting
- can be used
Weinberg
453025
in population
condition
The Hardy
What's the terminology Har
types
And what
is.
Hardy-Weinberg?
20
30
mean
Maybe
The assumption --
Weinberg formula.
15
the question.
blindly
equilibrium
assum~
that
is something
that
you can and do test
A.
You don't
Q.
And has the
other
10 I
A.
put
that
something
in or take
something
ou
R.C.M.P. proved that one way or the
it is or isn't
in Hardy-Weinberg?
I'm not sure you are asking
the right
person
t
question.
There's been literally hundreds of
of studies
gone
none
of which
into
it and various
I am, addressing
different
that
question.
15
a very
complex
they're
All
so variable
2PQ, that
frequency
of this
how many
people
pattern,
to test
actually go to
2S
numbers.
no problem
30
"
3025 '4/85,
test
is P,
2PQ to determ
have
this
what
two-b
you do i
your data base and say how many
pattern
it.
And
of
if I use
of this
that hypothesis
find that
have
is is that
in a population
you may
would
types
a difficult
is Q, and I use
this pattern.
that
test
it's
these
the frequency
do have
have
With
that
a Hardy-Weinberg
formula
20
question.
Well if it's a common p
10% of the people
and the
formula
Statistically
for this
with
da
said eleven
those
particular
in your
are very
test
you
s
say
Hardy-Weinberg
because
the exp
and the observed
are similar.
There's
no gros
deviations
between
there
10 and 11% in my opin
a thousand,
your
observations
say two in a tho
10
Now your
frequencies
in a thousand
go from
That
to one in five hundred.
up lightning
rods with
Q.
But
A.
That
is basics.
Q.
This
event
let's
in the population
get back
se
people.
to basics.
I'm trying
to teach.
15
and this event,
Weinberg,
before
formula,
each
statistically
A.
These
Q.
Alleles,
A.
The concept
to Hardy-
you can use the Hardy-Weinberg
event
has to be proven
independent,
are called
according
is that
to be
correct?
alleles.
20
because
yes.
They
are called
one is on your maternal
is on your
Those
is allelic.
paternal
chromosome
Those
chromosome.
are different
allel
and
are in
chromosomes.
25
Q.
But when
you apply
them
to population
out and you get your survey, they must
can apply
must
A.
be statistically
You know
dependent
G;'; 4',,"
formula,
-
befo
do the multiplication,
independent
with
everybo
else.
3C
4?
the
genetics
that
these
before
two bands
you do your
are statistically
survey.
things
10
are if these
things
are not allelic.
Like if these
person that has this band -are indeed
not allelic
chromosome
every
and they're
person
have
this band
fact
is not the case.
that has
so they're
on the same
this band wil
not independent.
That's
a statement
Th
of
15
sir.
I
Q.
You are confusing the issue, Doctor.
A.
No, I'm not.
Q.
When
you
form your
data base why must
get randomly-selected
individuals
you go
to form you
20
base?
A.
Because
that's
good
scientific
practice.
You
trying to establish a data base that reflects
society.
25
Q.
That
reflects
.,
,We
4 'f'
right.
So it wouldn't
to go out and get a data
base
family
and apply
of the communi
it to the rest
from
on
proper
is that
30
society,
right?
A.
No, that would
Q.
Why?
A.
Because
related
common
patterns.
not be appropriate,
individuals
no.
are more
likely
t
fragments
10
are statistically
you could explain to the jury what that means.
A.
There's n
Again, what we're talking about -issue here; these are independent.
different
been
15
Now,
independent."
chromosomes.
calling
alleles.
them
alleles
As a matter
are derived
doing
are in fact
of fact a lot of the data
studies
that they
in families
That's
Tha
are allelic.
is corning from the mother,
from the father.
We'v
are allelic.
and they
paternity
you can demonstrate
of the bands
They
They're on
a given.
one is
I know you w
20
take it that way but it is.
independence
markers
these
25
want
two chromosomes.
to look at markers
You want
I tag to this particular
dependent
to the frequency
indeed
test
if it's one in ten,
one in ten,
hundred.
and you make
You can look
So it's
an
more
you
at your
data
and calculate
a
look at this,
if
a prediction
at your
is i
something
by looking
look at this
if the
pattern
a perhaps
and that's
for, again,
You can actually
to know
on this.
issue of independence,
of independence,
frequency
"85'
we go to two different
frequency
issue
40 302~
is when
and we actually
separate
30
here
The real subject o
data
of one
base
and
i
s
And
is this
also what
we call
linkage
disequilib
Yes.
Has that ever been
proven
or is that another
assumption?
Has that been
Are
linked
proven?
That
these
things
are li
or independent.
It's never been demonstrated -Has it ever
It's never
Okay.
No,
been proven
been
they're
not.
they're
demonstrated
So, again,
I'm going
that
you're
that
going
on empirical
independent
they're
not.
on an assumption.
data.
Every time yo
They're on different chromosomes
There's no string holding these chromosomes to
and making them segregate together.
They don't
That's a fundamental principle of genetics.
25
Q.
Are
some
genetics
they
A.
30
of the position
the controversy
to basics,
human
you're
(4'85,
that
there
of populat
is no proof
in, and it can be b
the controversy
structures.
that
dealing
comes
where
population
populations
45"025
in the community
are independent?
Where
down
scientists
aren't
with
freely
populations
comes
If you're
in
dealing
interbreeding,
that
are mixtur
saying
we've
the population
got all these
is very
inbred
variable
isolates
when
in
and we've
10
them
together
theoretical
Q.
because
concern
been
demonstrated;
Have
you ever
Fact.
they're
that's
it's been
Or are you assuming
that'
raised.
been
demonstrated
And
white.
It's
raised.
that
it doesn't
that
the general
exi
po
15
tion
isn't
a collection
of all a bunch
of litt
populations?
A.
Well,
with
every
hypothesis.
theory
things
that
comes
a testable
Now, if you say the Caucasian pop
is in fact groups
20
there
of highly
follows
inbred
from that
people
is that
one
if I go
region to region I should corneup with very di
distributions
bred
people
inbred
25
much
30
of inbreeders
of things
have been
these
other
and they
other
people
than
should
if the theory
tested
I'm dealing
and if I compare
area
to each
from each
So you say that
enough
group
4,'85,
area
from this
similar
because
th
shou
to this o
be very
is right.
worldwide
w
di
Those
and it do
pan out.
Q.
453025
from this
people
more
group
of alleles
that's
to show that
populations
factual
there
enough,
that's
inbred
in any
isn't
in the general
Caucasians?
much
more
likely
and have
for a person
children
with
from Quebec
another
French-speaking
10
than
it is with
but there
broadly
an English
is the general
define
to m
It's not a
person.
trend
So that
there.
two people
that breed
with
each
preferentially
as opposed
to between
which
the definition
of a subpopu1ation.
is
15
Q.
Okay,
I'll
basic
I'll go on and
start
over
finish
this parag
"One critical
again.
calculations
reading
are only valid
factor,
when
applied
populations in which the DNA fragments are sta
independent"- which we just went through - "
20
wise
the value
estimate
the true
general
population
actually
them
25
A.
calculated
Yeah,
is."
I think
occurrence
making
So that's
statistically
might
greatly
under-
of the pattern
a match
in
seem rarer
the concern
about
t
hav
independent.
I raised
that
concern
that
if I
mUltiplying two things and I expect it to be
a hundred
accused
30
'5.3025
..4/851
and it actually
a grave
all concerned
injustice
about.
is one in ten
and it's
I've
something
w
Do you agree
10
A.
No,
with
I think
I don't.
ment
written
have
a hard
actually
random
that?
that's
a very
I think
by a nonscientist.
time
pick
finding
their
absolute
a population
mates
and have
you
where
p
children
i
I don't think that's in disp
fashion.
15
anyone.
Q.
Was Doctor
A.
He didn't
to that
20 I
Q.
He was
A.
Along
Q.
But
write
a consultant
with
many
have
A.
I think
Q.
It states
said
you'd
report.
He was
report?
a consult
to it.
other
people.
agree
with
this
don't
you th
so?
have
on page
chromosomes.
distributed
that,
that
individuals?
where
:41851
of this
to ask him.
68, it says:
"If the popul
-
at two loci
45 ,025
that
part
report.
is not freely
30
Landers
if he didn't
would
25
Eric
mixed then correlation
can exist
even
if they
In fact alleles
among
individuals."
alleles
people
are not randoml
Would
French
you
ag
distribute
the Quebec
marry
a
lie on dif
are not randomly
You explained
the French
between
situat
people.
A.
I have
on occasion
looked
at ethnic
groups
10
the Caucasians
individuals
racial
they differ
which
wher
Black
from say
is why we separate
those
Ori
into
groups.
Q.
Black
Oriental
A.
Yes.
Something
or Indian?
may be more
common
in one racia
15
group than another.
Q.
Yes.
your
When
you calculate
different
differences
A.
Yeah,
loci there
between
that was
the bin
frequencies
are statistical
ethnic
fo
signi
groups?
an expectation
of the
system.
T
20
exactly
ethnic
Q.
why
they were
separated
into the differ
groups.
Right. So if there was a Black person accused
crime it wouldn't be proper to put his profile
compare his profile with a Caucasian data base
25
A.
ways
to look at it.
opinion.
30
Q.
I want
A.
Then
you my personal
dealing
with
a scientific
opinion
here.
based
a little
it. If you had
'4/85!
I'll give
If you're
that's
there's
453025
There's different phi
If all the people --
on my
scientific
bit of logic
-
a province
that
th
opinion
too
I think
goe
and I'll use your example of
could
have done
this
or could
have
matched
that
10
pattern
fortuitously
at the population
crime
was
you probably
who
lives
committed.
Accused's
race what
if it wasn't
should
in the area where
By just
focusing
you are doing
him what's
be loo
on the
is you're
the frequency
t
say
of another
15
Black
man who
agree
is a very
that
a Black
did this which
racist
man
Q.
Right.
A.
The answer
Q.
But you will
type
I think
everyone
of assumption
w
to ma
did this.
to the question
is you'd
probably
do
20
admit
that
it wouldn't
be proper
j
use the one data base?
A.
You'd probably do both and you'd get the same
answer
-
similar answers.
Both
populations
are
variable.
25
Q.
You think
A.
Well,
the answers
the word
that
30
'4/85,
--
'similar'.
six million
those
get similar
Again,
You could,
it's one in a million
difference
453025
you would
in Blacks.
there
are not very
similar
we'd
have
do you
to def
for instance,
in Caucasians
There's
and people
answers,
d
and on
a five million
would
numbers.
say, you know
I sort
of
Q.
10
That's the best comparison you can cornewith,
six million
and one in one million?
possibilities
1S I
of changing
How about
say from one in six
million
to one in two thousand,
A.
Doesn't
happen.
Q.
Can't
A.
Doesn't
happen.
Q.
Doesn't
happen.
A.
I've
four thousand?
happen?
seen people
Again,
You've
never
misuse
statistics
if the technique
interpreted
properly
seen
is done
that's
it happen?
to do that.
properly
not going
and
to happen
20
Q.
Isn't
that the whole
misuse of statistics
issue
-
in this
that
there
a possible misuse of
statistics by the R.C.M.P. and the FBI and the
other laboratories?
A.
That's your accusation?
Q.
Yes.
2S
Is that what
scientific
community
statistics?
30
"'°",
4/""
A.
No.
Q.
By forensic
A.
No, not at all.
labs.
is in dispute
that
there
within
the
is a misuse
of
looking
at are in fact alleles
loci you're
10
MR. FURLOTTE:
looking
and that
the di
at are independent.
My Lord I think it might be an approp
time for a break.
Yes.
THE COURT:
with
Were
you going
to be very much
lon
this witness?
MR. FURLOTTE:
I expect
I will
be, yes.
15
THE COURT:
But I mean
MR. FURLOTTE:
THE COURT:
I hope
THE COURT:
you
I thought
be going
All
today
or tomor
today.
This morning
MR. FURLOTTE:
20
are we talking
indicated
yesterday
yesterday.
this morning
but
over.
right.
Well,
we'll
have
a recess
th
(RECESS - 10:55 - 11:20 A.M.)
COURT RESUMES.
MR. FURLOTTE:
25
authored
(Accused
Doctor
a paper
and I believe
co-author
30
Waye
you mentioned
along
also
Jury called, all
with
Mr.
Ron Fourney
that
you co
Budowle
of the
of the R.C.M.P.
of that paper?
A.
Yes,
Doctor
Fourney
Q.
Now,
I have
a copy
and at page
Equilibrium"
45 3025 4/85,
present.
was
a co-author
of the draft
21 under
the heading
the statement
as well,
y
of November,
1
"Hardy-Weinber
in your
paper
and t
A.
The
fragments
or less
-
themselves
are distributed
in a m
or a quasi-continuous manner.
The pu
10
of using
the binning
continuous
distribution
organized
defined
bins
system
is to get away
and sort things
blocks
or bins.
alleles.
They're
but you have brought
into
In that manner
arbitrarily
it down
from
you
defined
into
an allel
15
system
that you can define
alleles.
I
Q.
So since
call
A.
they
are arbitrarily
them discrete
defined
you could
alleles?
An allele can be --
Well there's always --
allele is like a lot of characteristics.
I
20
Ther
different levels that you can classify an alle
Depending
on your
an allele
based
allele
and that
rationale
2S
based
Q.
that
is now being
have
changed
approach
to defining
which
at a research
the criteria
But on this
then that
allele.
sequence
done
defining
for calling
discrete
level
alleles
they
If your
alleles
is somethi
level
the
them
all
on another
are discrete
al
They're discrete alleles on your level that yo
using them?
45 3025 4/85.
system
is a discrete
on the internal
level.
if you set out to c
on a binning
or your
and you're
30
criteria
base
pairs,
but that
is a characteristic
allele will be classified under.
10
Q.
allele
or it isn't
Okay.
But
that
number
A.
allele.
if I'm an allele
you run my profile
6 I can't
No, you were
-
that
Either it is
tomorrow
be very
in bin
number
7 to
and I end up in bi
discrete.
I ca
on one day you were a --
~5
recall
your
example.
Q.
One day I'm a 6, next
A.
And both
What
of those
you're
Q.
talking
Okay.
So you
conventional
requires
about
A.
What
also
state
formulation
no measurement
measurement
imprecision
they're
doing,
considerations
now
characterizations
is measurement
i
siderations
sir,
the application
of th
of the Hardy-Weinberg
imprecision.
in your
So you d
system.
is restating
the theo
that go into Hardy-Weinberg
There
equilibrium.
is a number
of theoretical
that go into it, none
life are ever met.
30
are discrete
precision.
20
25
day I'm a 7.
The
fact that
of which
in
you have
to
discrete alleles, ~o ambiguity in classifying
alleles,
that
the populations
be freely
interb
at random, that the populations be absent of
"302;
418;
Hardy-Weinberg
rule
and formula
you have
to hav
10
those
A.
No.
Q.
Those
restrictions.
restrictions
must
be in place
before
you
use the Hardy-Weinberg
formula
and the Product
to be able to multiply
to come
to your
big numb
15
A.
No,
Q.
That's
A.
Not at all.
Q.
At page
that's
not true?
24 of your paper
the present
I
20
not true.
instead
methodology
of genotyping
continuous
data
conventional
formulation
makeup
25
mean
A.
you
state:
permits
correct
and the existence
and measurement
approaches
.
45 3025 4/85'
phenotyp
of the
mak
of the Hardy-Weinberg
inappropriate
of the sample
fact
imprecision
for addressing
population."
What
the ge
did yo
by that?
Could
I see the draft,
since
the paper
was
It's been
please?
submitted
Q.
First paragraph here.
A.
I think
I have
it in context
a whi
and that draft
written.
30
"The
now.
was
Hardy-Weinberg
That's
equilibrium.
what's
laid
10
in the page before
this.
What
it goes
that we are in fact phenotyping
Okay,
maybe
difference
15
A.
you could
between
explain
genotyping
basic
definition.
basis
for that
type would
bands
-
And
be what
you
other
could
and this band
have
both
two alternate
30
453025
4'85,
same visual
There
You could
have
was
-
could
I can
these
these two
A
on
phenot
be two genotype
this band
on one chro
chromosome
on one or the other.
possibilities
a p
no band
a genotype.
on the other
impression
now,
I can say that
That's
I see here.
for that.
some
with
this is just a hypothetical
chromosome.
is what
dealing
and there
t
Basically.
see on the x-ray.
genotypes.
are on one chromosome
That's
is the genetic
appearance.
we're
jury the
and phenotyping?
a genotype
outward
of what
you alternate
25
for the
A phenotype is an outward appearance.
the context
20
and not genotypi
--
We are scoring
Q.
on to sa
that will
or y
So you ha
give
you
or the same phenotype.
A.
And using
context
this method,
of what
You have
yes.
the discussion's
to put
i
about.
10
Q.
So as far as for that
assess
whether
Yes.
it's not possible
or not a population
Hardy-Weinberg
A.
test
sample
is i
They're
makin
equilibrium?
I think they're making
statement
t
that
if it fits
--
it still may
be out,
1S
if it's
test
Q.
out it still may be in.
for evaluating
A.
that you're
Well
it was written.
we'll see how things develop later.
to state:
"Although
restriction
true
2S
that
A.
That's
it says,
Q.
You
what
state:
or not there
at each
the main
are dramatic
for sample
inher
locus
populations
issue
difflerences
distribution
and if there were
of other
loci
comb
yes.
"Therefore,
frequency
You
be some yet u
for 1:hese VNTR
the alleles
at random.".
loci
could
for the vast majority
essentially
lation
., J02> ,Me;,
there
on randomness
characteristics
30
in Hardy-Weinberg?
I think, again, you have to put this in the co
of when
Q.
this.
going back you're just going to go, again,
So
assumption
20
It's not the
is whet
in the
IDf particular
V
of a particular
r
significantly
stratified
made
of two or more
groups
of individuals
that
10
freely
intermix,
children
amongst
so than
between
assembled
you're
three
treating
they will
tend
the group
or within
the groups,
to marry
and ha
the group
then you have
or four different
it as one.
Now,
reall
populations
if there
a
are
15
frequency -frequencies
groups
It really
of these
it really
doesn't
alleles
doesn't
are the same
matter
intermix it's going to have
on the population,
matter,
in al
they
fr
it will have effe
-
they still
whether
if
don't
I
intermix.
20
not going to have effect on the numbers because
frequencies are the same.
If there are differe
however, if you have something that's very comm
one of the groups
25
you are going
half
common,
40 :"J20
'4i8"
half
rare,
that really
the groups.
One you're
going
rare
to end up when
a frequency
one you're
30
and very
going
again,
on that
they're
you mix
but you're
doesn't
going
them
going
apply
this
you're
sayin
to be
to be overestimatin
not knowing
defining
Caucasians.
gr
to either
to be underestimating,
to be doing
because,
in the other
and you
you're
your
data
doing
base
I think
we're
groups
very
concerned
about
if in fact they have
the stratifi
a forensic
signific
10
As I said before,
they're
if there's
stratifie~
frequencies
variable
mixing
two populations
they never
intermix,
are the same and these
patterns
in each,
two things
that
although
but the
probes
it doesn't
an
give
matter.
they don't
inte
15
their
patterns
effect.
So we're
but we're
Q.
concerned
between
A.
group,
ethnic
about
would
about
these
the end result.
it's one approach.
basis
for going
into
based
they're
that you
Do we subdivide
language?
because
like you
We define
subdivide?
I don't
think
You
the one g
What's
Again,
it by street
and pullin
intermix.
Caucasian.
it by religion?
you have
Again, you have to h
that don't
characteristic.
on that
subdivide
just
into that population
the two groups
criteria
you not,
groups?
Well,
to define
.5 "°25 4;~5,
concerned
Right. And in order to find out what the end
stratified
30
always
and it has no
would be you would have to assess them in thei
20
25
can be intermixed
the n
that's
or by county?
Do we subdivide
that's
the proper
a lot of assumptions
along
ar
Do
it
way
th
Q.
And what would
you do if you had evidence
that
stratified?
10I
A.
That it
Q.
That
--
was
the population was stratified and that it
not homogeneous.
I
A.
If I did the empirical study
Like
--
I think
15
you're
found
asking
that
relation
base
20
the numbers
in fact
wrong
25-
Correct.
Q.
Okay.
A.
And I'm
at
we're
tests
about
a
absolutely
in the
that there'
- when you're
in the Caucasian
the French
probably
make
assumptions
probably
more
likely
rule.
those
talking
bringing
marry
I observe
study
are done
talkin
subgroups.
no argumentwith any expert that th
are subgroups
4185.
And
Okay. We're talking here
A.
have
is the definition
in there.
stratification
45 3025
that
I
Q.
30
I predict
to the numbers
that
thing
is if I did the empirical
people
population,
and English
or I think
that people
to marry
in New Brunswick.
people
It's
agai
you
in Ontari
in Ontario
not a gen
done,
sir, and to answer
that very
question,
fi
10
looking
ways
at different
of picking
things
have
R.C.M.P.
regions
apart
been
and then
o
A lot of t
a population.
looked
there's
at worldwide
not just
to answer those questions. They're ob
questions.
15
Q.
Okay.
but knowing a person would belong to a
subgroup it wouldn't be proper to do a calcula
on a general
want
data
A.
to find out the probabilities
I think
that
if you had absolutely
structuring
do as you
look
within
its
just
it would
probably
said which
at these
factors
no idea
the effec
be incorrect
is precisely
why you
and you ask questions
wha
the effect, if any, of any possible substructu
25
these
making
differences.
Q.
him
for all of Canada
subgroups
prejudicial
that
applying
to answer
there's
in it it would
then
you'r
empirical
your questions.
to the general
when
to float
done
you're
formula
But by applying
would
Having
an assumption,
and empirical
45 ,025 '4/65,
You
for all of Canada.
subgroup.
20
30
base
data
base
s
a lot of differe
be most
likely
as high
the numbers
around
that y
get out of a general
data
base.
that
intuitively
region
you know
are more
likely
exist,
again
to interbreed
people
with
peopl
10
that same region as are people of the same
Canada
French
earlier,
fairly
and English
like those
good
comparative
the example
aren't
I alluded
absolutes
starting
points,
studies
you don't
when
i
-
but they'r
you do those
find that we've
15
mixing
-
French
are very
similar,
things
and we're
not the
situation.
similar
That's
20
Q.
Okay,
all the English are very similar, all
but you know
statistical
French
A.
significant
Caucasians
The data
that
statistician
25
I may point
English
significant,
if that's
,<1851
between
and,
again,
of that
5%,
some
say
I'm
sign
allele
6%, I may
in
look
statisticians
ma
I'm not a statistician
bu
it's probably
I'd be willing
of the doubt
Is the
a --
say statistically
and say 5 or 6,
And
vari
Caucasians?
and say it's
that's
two very
everyone's
difference
to the frequency
and say it's
significant.
there's
analyzed
so when we
French
benefit
<53025
I have
mixing
saying
and English
Caucasians
look at that
30
that
we're
to give
to take the more
how they wanted
to do the
no
anyone
common
figures.
v
A.
Yes.
Q.
And you have
data
10 I
A.
The data was
from Leo Lavergn~
compared
that with
yes.
I assume
the R
base?
I compared it with data bases from allover
No
America.
Q.
And you know
data
how many
people
are in the R.C.M.P
base?
15
A.
Not exactly,
Q.
Roughly.
A.
Again,
quite
data
20
I haven't
some
base
and other
worked
the data
with
302,
'4/8,
i
data bases
I'm talking
people's
data
about
bases
of years
and generated
that
difference
the two.
there was
between
and the R.C.M.P.
when
R.C.
right
I actu
the data
an
data
a statistical
the Montreal
da
base?
I didn't
do exact
statist
as you say.
Q.
You didn't
A.
What
do any statistical
I did do was
significance.
.,
these
the data.
I compared
that
with
a couple
Did you calculate
tests
30
so when
back
base
A.
worked
time
significant
25
now.
I'm walking
analyzed
Q.
right
I'm citing
look
tests?
at what
I'm always
I viewed
concerned
a frequency
as for
as a scien
that may be five o
at the data,
the two patterns
mirror each other
that
I
you get.
I don't care if it goes 5,
-
10
then it goes 7, B in the next lane - those
aren't
Q.
Are
forensically
significant
they any greater
the R.C.M.P.
data
differences.
differences
base
real
than
and the data
1 or 2% b
base
compil
Montreal?
15
A.
I can't
were
recall
exact
6 and 7 and I'm sure there's
of 6 versus 9.
versus
analysis
Not
and I know
-
There's
familiar
Q.
30
45 ::025 4/85/
been
that
On page
would
you're
somebody
much
29 of your
more
be desirable
correctly
genotyping,
profiles,
and to reduce
data
bas
by
I know
that
and
so perhaps
the wrong
person.
much
more
I am.
you state:
to define
that the
analyzed
intimate,
than
paper
those
hearing
asking
the data
and I did tha
is being
in this
I know
with
both
of
1, thing
I know
ago.
for a living
exam
no examples
I can recall
the data
I sa
probably
50, or 10 versus
expanded,
be testifying
asking
there's
some time
do statistics
will
25
that
myself
has recently
who
Again,
35 or 6 versus
like that.
20
The numbers
figures.
alleles
"Ultimatel
discretely,
not just phenotyping
measurement
VNTR
imprecision,
have
two bands
but where
you have
A
one band.
10
mentioned
yesterday,
and with
a lot of these
an individual
will
you can analyze
have
won't
have
one band.
two possibilities
probes
about
two bands,
That's
people's
10% of th
the individ
Ther
a phenotype.
for that.
Most times if you
15
the parents
available
you would
be able
that the mother and the father share
they both
child.
So you
represents
20
contributed
mother,
see one band
two bands
one from
genotypic
the same
size
there
of the same
father.
That's
interpretation
,a
to dem
band an
fragment
and it actua
size,
one fro
a phenotype
a
T
of that phenotype.
other possibility is that when you did the tes
there was a band down here that you couldn't s
You didn't
25
bottom
pattern
Q.
A.
of the gel,
that you're
The R.C.M.P.
bottom
30
analyze
Not
with
if the test
detect
DNA, you
only detecting
bands
'41851
one of the
to run bands
properly,
of DNA that
of
at the bottom
no.
It is p
it's difficult
of the gel though.
that gets into a whole issue of --
4;3025
is a two-b
is it?
is done
amounts
ran it off
but in fact this
it's not possible
of the gel,
small
enough
it off the bottom
which
really
shouldn't
detect
it, so what
if the test
happen,
you
should
is done
pr
be able
to
10
bands
that
are so close
one to your
eye under
like one band
you might
you're
really
in size that
the test,
but perhaps
be able
dealing
with
they
appe
so actually
i
if you ran the test
to see light
between
the two
a two-banded
pattern.
15
and it's actually
statistically
There's
you treat
a formula
those
Now,
situations
for calculating
differ
the incidence
a two-banded pattern and there's a formula
10
different
formula
for calculating
a one-banded pattern.
-
a
the frequency
What's laid out in the
before what Mr. Furlotte read to us is that wh
scenario, that there's alternate ways to figur
25
out.
What it goes on to say is that we'll ass
worst
happened
a one-banded
and what
pattern
:4Ie51
that
formula
you use
use a formula
is the most
if the frequency
P times
pattern
you use P2.
though,
since we can't
that
are close
a two-b
is P and the
If you have
P.
formally
when
conservat
is is if you had
is Q you use 2PQ.
two bands
45,025
pattern
that
frequency
30
and we will
What
rule
together,
a one
we have
out that
is that we'
the same,
So you generate
and you use 2P.
-
10
time you see a single band you generate very w
statistical strength from it because you've b
overly
conservative.
another
band
You've
you can't
unreasonably
high
hypothesized
that
and you've
given
detect
That's what's l
frequency.
15
in the page before.
The paragraph that's hig
lighted
read
and that was
Q.
Read
A.
It says "Ultimately"
it again.
world
20
it says
"Ultimately,
to define
alleles
discretely.".
alternate
interpretations.
other,
Q.
and you could say in a
-
but
you know
25
--
it's two bands
it would
So there's
If you
that
be de
no
see a singl
are on top of ea
period.
Are you now admitting
alleles
in your
that earlier
that you do not have
When
system?
di
I hit you back
you said yes it is a discrete
al
system.
A.
30
453025
4/851
It is.
what
you
Things
see.
fall
So when
discrete
allele.
it will
fall into
What
into
I score
Period.
a bin.
you
that, that
It will
That's
have
score
is a
a siz
a discrete
a
measurement
imprecision."
That's
a paragraph
th
10
says
in a perfect
world
how big that band
define
is, I would
all the bands,
exist,
be able
and whenever
exactly
like to be able
and I wouldn't
to - and then we would
as they
I'd like to know
you
want
to apply
to
to hav
the form
see a single
ban
15
you would in fact corneup with a much stronger
statistical statement than we softened here.
Q.
Why would it be appropriate to reduce or let's
even
remove
measurement
imprecision?
To get yo
Hardy-Weinberg?
20
A.
It wouldn't
is out of Hardy-Weinberg
measurement
Q.
imprecision
I understood
rule
it doesn't
requires
formulation
discrete
matter
what
is.
you to say on page
of the conventional
25
If a
get you into Hardy-Weinberg.
alleles
21 "The applicat
of the Hardy-Wei
and no measuremen
imprecision."
A.
And
I explained
considerations
30
Q.
Right.
that that's
to the Hardy-Weinberg
It has not just
has to be a factual
Hardy-Weinberg
45 ,°'5
4185 J
one of the theoretic
a theoretical
base before
formula.
equilibrium
basis.
T
you can use the
A.
For over
80 years,
sir.
The Hardy-Weinberg
for
10
has been used
on animal
over
and I assure
80 years
flies
Q.
They
in a jar none
have used
grouping?
and human
populations
you other
of them meet
than
those
it for multiplication
To calculate
frequencies
f
the
f
criteria.
for say in
in blood
gr
15
right?
A.
Certainly.
Q.
Blood
A.
Yes.
Q.
Can't
grouping
you have
mistake
discrete
alleles?
an A for a B but you can mistake
fragment size for a bin 6 or a bin 7, is that r
20 I
A.
The
fragment
Q.
And
one day it will
will
fit in another
is a bin
I
30'
fit in one and the next
depending
A.
And
it makes
Q.
Not
for forensic
A.
Not
for any purpose,
Q.
Aren't
A.
I don't
some
absolutely
on your
day
measuremen
think
so.
no difference.
purposes.
paternity
scientists
the principles.
'4,851
7.
imprecision.
25
453025
6 or a bin
Not
testing,
concerned
scientists
about
genetics
that?
that understan
10
at --
It's like looking at different colo
marbles.
Once they're mixed up you can't loo
barrel and go in with one hand and sort them
into their different colors.
can do tests
colors
What you can do
to find out if there
in there
or they're
are differen
all the same.
15
Q.
But all the marbles
Canada
A.
Well,
in the general
are not all the same
I think
at Caucasians
color,
I told you that
you would
population
are they?
if you were
loo
be a fool to make
the
assumption that there isn't regional stratifi
20
or linguistic or religious stratification of
Those
sort in the population.
responses
Q.
A
few
to the question.
months ago did you assume that there wa
stratification
25
are intuitive
in the Caucasian
population
in
Canada?
A.
30
I
Q.
A.
Not
at all.
Not at all?
No. It's something that we've
recognized
that
any other
racial
across
4; .>025 '4'00'
the human
group,
the country.
-
I've always
populations,
are not freely
I don't
think
Caucasi
interbr
that's
a d
a person
in Montreal,
would
it be proper
to run
10
through
the general
R.C.M.P.
15
I
A.
Based
Q.
And
A.
Based
Q.
It would
A.
Because
data
base
that
t
have?
on what
I know?
Based
just use that.
both
Q.
population
on what
I know
on what
it would
you know.
not be improper.
not be improper.
I know
those
the effect
population
Do you know
data
how much
I kno
is negligible.
bases
look
of a difference
like.
you
could
up with?
20
A.
In the numbers?
Q.
In numbers.
A.
You would
have
to pick
What
a genotype.
you ca
is - and when I used to do case work and presen
25
in court
world
I would
and I would
run the numbers
whether
30
take
it's his race,
So I would
example,
the Accused
from Paris,
any data base
bases
every
data
religion
compare,
France,
pattern
base
th
an
I can
or geographic
in the
to people
I could
from around
the Accused's
through
or not.
Floria,
4', ,0>' 4'.',
take data
last case
from Indiana,
from Montreal,
get my hands
o
fr
virt
on, and the
bands
that
are being
assessed
than
is a theoretical
concern
the general
10
population?
A.
That
would
do those
are going
studies.
to have
and that's
why yo
It is possible.
Again
to invoke
own that this is an actual
some assumptions
that
-
there's
o
force
15
working
in the dynamics
inbreeding
of this population
or restricted
movement
such
in or out of
population.
Q.
We could compare that to the analogy saying so
like well we have
20
the general
run say my profile
the R.C.M.P.
out with
that
25
well
somebody
A.
The numbers
Q.
Probably
doesn't
group
data
base
there's
would
less,
have
probably
used
if we took
one chance
that
populati
you migh
in say a
same profile
be less than
five hundred
for an example,
a family
subgroup
you said
they'd
and i
that
b
million
and as a
the numbers
be something
one in a thousand.
30
A.
4185 i
only
but okay,
matter,
the general
for five probes
else might
be up to I believe
40 ,0>5
through
population
Well
you're
asking
very
different
different
questions.
questions.
You'r
lation
and then
you're
at the same dinner
pulling
table
people
and have
who
sit
the same par
10
and we know at the beginning that if they have
same parents
for what
there
is a limited
the DNA patterns
MR. FURLOTTE:
And
there's
will
number
look
a lot of band
of choic
like.
sharing
wit
families.
If they have
the same parents
they'll
look
ali
So you're going to get band sharing.
You certainly will.
Right.
Just
like you do maybe
within
an inbred
population.
Yes.
If you have
for brother
and sister
first
cousins,
will,
where
the dinner
25
family,
table,
30
I agree.
general
Now,
where
to marry
niece,
they
it's
and have
that whole
the
child
clan,
more
than
sit d
in fact
intermarry
withi
in that
an outbred
of inbreeding,
inbred
which
y
population
population.
to go from the two extremes,
population
i
do much
the definition
similarity
you will with
Q.
aunt,
the family
that's
have more
a population
takes
everybody
th
in Ca
and maybe a small community which is not as in
as a family
4;
CO2;
'418;
I
unit
but nevertheless they're not
something
forces
like that you really
that would
create
have
to look at
a situation
where
a
10
particular
a region
region,
when I say population I'm talking
-
of people,
a town
not a household
or community
I guess
for it, a community
of individuals,
some
set up where
sort of forces
or whatever
is a good
there
nobody
have
wanted
15
leave
that community
either.
related
And where
by blood
but nobody
wanted
it's the norm
to marry
each
to come
for people
other
wh
and have
children, that it's the norm, not the exceptio
norm, now you've set up the situation where
20
-
happens generation after generation after gen
no one in, no one out, marry
uncle,
MR. LEGERE:
2~
A.
etc.,
30
Q.
an outbred
population,
on those
types
of restrictions.
So if you were
going
to compare
figures,
and you have
the general
again,
that
population
may be reduced
drive
o
to each
based
with
a mate
similar
you select
the
,4185 i
than
more
that would
where
population
4;302;
of forces
to looking
genetically
marr
like the Miramichi.
are the type
population
sister,
etc.
Sounds
Those
your
that
a family
type
of
for Can
from one i
believe
either
wives.
And
three
then
or four queens.
it was
the norm
in that
commu
10
by definition,
since
everyone
is descended
fro
people, for brother, sister, aunt, uncle, it w
incestuous community over several hundreds of
and you can use these
probes
and have
absolute
problem uniquely identifying each and everyon
15
that
Q.
That's
community.
And with
how many
run through
that
the extreme.
How many
probes?
probes
I assume
community?
wou
the test
done.
A.
I didn't
do the testing
Doctor
myself.
Kidd
20
sented
this work
believe
he'll
intimately
be more
know how many
now.
again,
it's his data
be testifying
familiar
so it would
25
and,
probes
with
in this
that
data,
appropriate
so
it is his
for him.
he did and
I'm summarizing
trial
an
I d
I'd be guessin
the work.
I
Q.
Do you know
of any cases where
two people
sha
same probes?
301
A.
Two people
shared
Q.
Two people
may have
A.
Oh, certainly.
run the first
have
., :;02,
AI85,
the exact
the same
shared
I have
probe
-a couple
done
cases
and there's
same pattern.
of probes?
myself
wher
two Accused
a
You do the popu
Q.
Okay,
that's
going
through
Two ban
one probe.
10
one probe.
A.
The second probe usually resolves that, and wi
family
even within a family after the second
-
you can resolve all those brother relationship
becomes
improbable
that
even brothers,
unless
15
identical twins --
Q.
That becomes
A.
In all the families
20
more
improbable.
that
in this
type of setting
they're
a very
inbred
I have
studied
it's always
family,
I have
and,
a
suggested
never
obs
that sort of thing that I have to use a large
of probes, an excessive number of probes.
Q.
But that's
just in case
specifics
that you're
about.
25
A.
No, these probes actually -of these
they
probes
is that
they were
are highly
variable
and the
these
probes
They were
were
used
ever used
on large
discovered
first
on were
families
b
families
inbred
from Utah,
cor
th
Mormons.
30
Q.
No, but you were
here.
's ,02; "8S,
The history of
talking
about
your
personal
e
extreme
Q.
populations
as well.
You mentioned
that
now you are certain
are subgroups
within
that
th
10
the Caucasian
population
Canada.
A.
Well,
I defined
said you'd
there
what
a subgroup
be foolish
are groups
was
and,
not to recognize
that would
associate
agai
the fac
and inte
15
preferentially
throughout
a~sume
Q.
A.
Do you know
Again,
down
there
would
these
things
I'm sure you could
it's more
likely
to marry
financially,
often
You would
be a fool
happen.
how many
you define
and doctors
25
and not as a wh
be in Canada?
subgroups.
language.
that
each other
the country.
that doesn't
Different
20
with
than
regionally,
break
for lawyers
rich people
rich people
marry
it down
to marry
You could
doctors.
marry
poor
re
e
la
break
rich peopl
people.
I
Q.
I'm talking about subgroupswith DNA genetica
genetic
301
453025
4/85,
differences.
A.
Within
the Caucasian
Q.
Within
the Caucasians.
A.
We have
looked
population?
for them
and we don't
find the
second
two hundred
may be 8%. That's not signifi
It may
be statistically
significant;
it certain
10
Q.
isn't
forensically
Maybe
you could
significant.
explain
to the jury how you wo
distinguish between two different subgroups.
would it take statistical-wise to say that thi
one distinct
group,
this
is another
distinct
g
15
What would
it take
so that
and nothing
else?
A.
And
justify
Q.
I want
I could
separating
a statistical
the two groups?
20
they would
significant
How much
be two g
them?
difference
of a difference
be
woul
necessary?
A.
It comes
down
not trying
25
fundamental
to confuse
question,
you or the jury or the C
The qu
you have
are sa
posed
is difficult
the ability
I don't
because
you
to separate.
want anything about
difference.
That's
no forensic
got nothing
meaningf
to do with
Okay.
30
MR. WALSH:
Objection.
MR. FURLOTTE:
He
IS
testifying.
I want the statistical significant
difference.
45,02541851
and
I'm trying to answer the question --
I have
Q.
to the
sta
significant.
10
Q.
Okay,
I don't
to know what
group
want
you can do.
of people
of people
to know what
Let's
from Toronto
from Moncton.
you can't
do; I
say you assess
and you
assess
a g
would
it take
for
What
to say well there are statistically
significant
15
differences between these two groups.
I can't
them all and treat them all as one group.
What
it take to show the difference?
A.
You would have to have differences in these fre
that would make a difference in your final calC
20 I
Q.
And how much of a differencewould you need to
the difference?
251
A.
Well, I can give you examples in my mind that
Q.
That's
A.
Well,
there's
think
that would
Q.
I don't
margin
30
45 :,025
.4/85,
I
A.
what
want
I want,
frequency
take
What
to make
versus
another
fusing
the issue
you generate
data base.
is the narr
a difference?
that empirically.
of numbers
difference.
set off bells.
one big extreme.
You determine
types
Doctor.
the tenfold
it would
-
You
compare
wh
from one data bas
I think
is is you want
what
to know
you're
exactly
you?
10.
A.
I have
Q.
You have
no idea what
no idea.
this hassle
I
you want
So you don't
before,
for a better
A.
There
were
Q.
Okay,
let me just try again,
many
most
hassles
of the time.
recall
going
t
word?
for a better
word.
Doctor.
15
THE COURT:
And
MR. FURLOTTE:
yourself
for weeks
too.
time you testified
as a population
you wanted
geneticist?
He didn't want to qualify himself --
MR. FURLOTTE:
Or as an expert
20
MR. WALSH:
lasted
The last
qualify
MR. WALSH:
they
--
Excuse me, My Lord, I object!
MR. FURLOTTE:
I'm sorry,
as an expert
in population
genetics.
MR. WALSH:
25
The crown
in the human
forensic
population
Court
30
THE COURT:
'4,So,
he be declared
genetics
has testified.
to be declared
an e
as it pertains
A very restricted
This
anything.
Doctor
didn'
The Crown
ask
to do so.
Well,
Walsh?
.''025
that
DNA polymorphisms.
as the Doctor
asking
asked
what
is the point
you are making
M
time
that he was being
MR. FURLOTTE:
Doctor,
examined
I asked
by me.
you at the other
heari
10
I said
"And if you were
in population
group
genetics
you would
a subgroup
out and doing
st
and if you corne across
be able
and it was
the general
going
to recognize
substantially
population.".
Do you
that there
different
recall
what
15
answered?
MR. WALSH:
My Lord,
transcript.
if he would
I mean
we're
just
show him the
playing
a guessing
g
here.
20
THE COURT:
Yes, I think --
MR. FURLOTTE:
We're playing a game, My Lord, and it
Your answer was "Yes, I know -THE COURT:
Well now give the witness a chance - he
read it himself.
25
A.
My answer to that question is "Yes, I know how
define a subgroup.", and I think I have define
over
and over
MR. FURLOTTE:
A.
30
.'O2~
,4/8~
I
this
I don't
--
afternoon
experiments I'm certain
as well.
Continue.
"And I know how to design experts"
whether
4~
And
again
-
-
that shou
"to ask the question
it had any significance."
somebody
who plays
with
numbers
him have
a look at whether
for a living,
one
in six and one
10
seven
is significant
and what
effect
it will
h
globally --
Q.
It depends
on the
size of your
data
base,
does
not?
A.
What
depends?
Obviously,
if you
analyze
thous
15
of individuals
your
confidence
that you have
frequencies or the significance
confidence
that you have
be greater
than
-
in those
if you analyzed
or, excuse m
frequencies
a small
number
people.
20
Q.
Is there
a statistical
the data
base
significant
for Blacks
difference
and the data base
for
Caucasians?
A.
25
Again,
I'm not
a statistician
but you can look
patterns
and you --
You can
patterns
and tell
they
that
simply
look
at
are different.
So
are different.
Q.
Is there a statistical
you could not treat
30
A.
You're
asking
Yesterday
significant
them
difference
as one group?
me a lot of statistical
in court
I couldn't
multiply
question
10 by
10 by 10 by 10 and get the right answer.
4; ,02;
418"
I g
data base
0157,
10
your
7 there
and
in Moncton,
binning
was
system
50 people
for the data base
people
in bin
populations,
that
there
and for any probe,
for the 0157,
if in
in the data base
in Toro
in Moncton
would
7, same bin,
would
take
that
there
same probe,
two dif
be significant
is a statistical
b
enough
significant
differ
15
so that
these
separate
populations
conglomerate
A.
two populations
50 you've
them
looked
rather
would
constitute
than being
able
to
as one?
at 500 people,
to get the example correct.
correct?
I've
500 people, so a
20
chromosomes you looked at, a thousand alleles,
you said you found 50 people.
25
Q.
Well, 50 --
A.
50 alleles.
Q.
50 bands.
A.
50 out of a 1000,
statistician
head
and I have
but that's
and the other
30
whether
so that's,
that's
probably
population
again,
a hard
time with
is 4%.
statistically
Not
4; 00254/80>
not constitute
in my opinion.
math
5%, 50 out of a 1000,
I have
different.
is it's probably not, 4 versus 5.
would
I'm not a
evidence
no id
My o
That in i
for substructurin
across the 27 bins and at everyone
fold up or down
so it bounced
bin, with
types
you found
up and down
at ev
10
those
be alarmed
Carmody
of proportions
and take that
who will
significance
data
testify
to somebody
later
like
on statistical
If, however,
and look at it.
at 26 of the bins
I probably
and they're
bang
I l
on and I hav
15
bin where
it fluctuates
by twofold,
if it went
2!% and in the next bin it flips the other way
there's all sorts of different reasons that th
happen.
fine a subgroup.
20
Q.
Basically
what
I get
you don't
know
how to define
know
25
That certainly doesn't constitute o
a subgroup
Objection,
THE COURT:
I don't
think
You w
in the head.
That's
that's
Docto
not a questio
a comment
-~
Is th
Say no.
question?
No.
My Lord.
testimony,
subgroups.
if it hit you
MR. WALSH:
A.
from your
I've never
been
hit
in the head with
a s
group.
MR. FURLOTTE:
30
binning
So when
system
data base
45"°25,4'"5,
say there's
between
in Montreal
but you don't
difference
you
a difference
the R.C.M.P.
you know
know whether
and you wouldn't
data base
there's
there's
know
a diffe
a significan
how to calcula
Q.
10
I believe
you stated
difference
comes
between
to binning
two different
that you know
Blacks
there
is a
and Caucasians
frequencies.
populations
when
They would
be c
or subpopulations
of
world.
A.
Yes.
They
are two different
racial
W
groups.
15
do analyze their patterns there are difference
there
Q.
Now,
are differences
it wouldn't
Whites
A.
and pool
in many
be proper
them
There
would
would
be violating
of the bins.
to use the Blacks
a
all in one population?
be a lack of logic
in doing
that.
20
Q.
some of your
that
you wouldn't
want
know
at the beginning.
Would it also be sayan
Hardy-Weinberg
formula
starting
premi
to mix populations
that
improper application o
or the Product
Rule?
25
A.
It could
Q.
Again,
A.
It could
be.
could
be, or would
be.
be?
In a lot of instances,
again
I'm
at a bottom line, a lot of instances you could
30
people
mix
them
453025
<185,
have
simulated
two populations
together,
look
these
types
of things,
y
that you know
are distinct,
at a person's
genotype
wit
Maybe
10
A.
you could
read that paragraph
whether
or not you
Reading
what
of mixed
mixed,
stated
I said,
it could
or would.
and again we were
populations
here's
and tell me
that
the start
you know
on this
don't
belong
"If I co
of the quote:
give an example, if you took -- if you took bla
individuals,
white
individuals
and treated
them
15
one population.
was very
rare
If the
in the blacks,
whites
and you treated
derive
frequencies
them
that
those racial groups.
20
frequency
very
of a given
common
ba
in the
as one population,
don't
apply
to either
So that would be an impr
application of the Hardy-Weinberg formula and
product rule."
25
Q.
And there we're talking about subgroups?
A.
Yes.
And
then
I went
populations ...".
example
exact
that
words
I gave
on to say "That's
And
I think
earlier.
but --
And
30
."'.", 4/<;
said --
and it's not funny,
white
.;
and you
you mixed
them
you used,
you'd
together
precisely
Perhaps
not in t
If you
No,
is that
and the frequencies
that's
in that particular
the word [would] is proper.
around
called
e
switched
the converse
of
if you had black
were
the
same
it wouldn't
get the same answer.
th
a
in both
matter
whic
So in th
where
10
one's
common
in one group
and one's
rare
other.
Q.
But we only need a difference of one band, not
MR. WALSH:
My Lord, I would like to at this point r
Mr. Furlotte
an objection.
transcript.
showed
My understanding
Doctor
Waye
of the purpose
o
15
showing
he's
Doctor
allowed
between
what
and what
20
Waye
the transcript,
and the onl
to do that,
is to show
Doctor
said
he said
Waye
in that
some contra
in his testimony
transcript.
Now,
Mr.
Furlotte's smiling in the courtroom is not evi
of any contradiction.
he's
given
that
I would like to know, s
to Doctor
Waye,
where
the contr
diction is between that testimony and the test
he's
25
given
MR. FURLOTTE:
THE COURT:
I asked
Where
MR. FURLOTTE:
30
him to --
is the contradiction?
I asked
asked
him
today
he was
him --
if it was
saying
He said
[would],
[could]
it could
and
and the contradict
and the other
time
testified it [would].
THE COURT:
think,
., .,",'bo'
in the courtroom.
Well
he's
isn't
he?
talking
about
a different
thin
was very
rare
in the Blacks
and very
common
in
10
Whites and you treated that as one population,
would
derive
frequencies
that
of those racial groups.
don't
apply
to e
That's exactly what h
here in this courtroom.
THE COURT:
Well,
let me comment
on this.
The cross
15
examination
of this witness
into a good deal
is perhaps
one,
10
of nit-picking,
questionable
and it's time
of pull
your
seems
insofar
to have
dete
the value
of
as it concerns
now for lunch.
thoughts
together
Couldn't
over
lunch
yo
Mr.
Furlotte and perhaps -MR. FURLOTTE:
Well,
My Lord,
before
I go and go for
I would like to state that whether it's improp
proper
15
to use the Hardy-Weinberg
Product
consider
THE COURT:
lunch
Rule
to get at big numbers
that
Could
hour
MR. FURLOTTE:
you pull your
and perhaps
depending
.5 "°25
./85,
Well,
and
I would
har
nit-picking.
witness within what
30
formula
-
I still
on how
long
thoughts
try to wind
together
up with
ov
thi
15 minutes, half an hour
have
some material
it takes
to g
me to get throu
perhaps
aren't
doing
that.
jury out now and have
However,
lunch
until
we will
t
2 o'clock.
10
(Jury excused
for lunch.)
THE COURT:
Mr. Walsh,
MR. WALSH:
My Lord
you had something
during
you wanted
the cross-examination
of
Waye around noontime the Accused made a commen
scurrilous comment about the Miramichi in rela
15
the fact that when Doctor Waye was describing
breeding
he made
the comment
to the effect
"Th
like the Miramichi.".
Like an urban --
MR. LEGERE:
20
MR. WALSH:
In itself and by itself that is a commen
was made to scandalize a community, in this co
He has been warned
and warned
and warned
and w
and he is just constantly disobeying the
Court.
25
remove
him
pletion
MR. LEGERE:
MR. WALSH:
MR. LEGERE:
30
your
MR. WALSH:
That
in itself,
from the courtroom
of the Crown's
That's
But
My Lord,
your
your
at least
force
to the
case.
interpretation.
in addition
That's
should
to that
--
interpretation.
I went
out
cousin.
In addition
to that,
that comment
is dir
related to -MR. LEGERE:
.,
"02'
A18'
I
I went out with your cousin and you're
MR. LEGERE:
10
MR. WALSH:
Well
there
That was
isl
raised
at the voir
dire.
He is
this particular comment -MR. LEGERE:
How can you compare a data base with Ca
Gagetown
THE COURT:
15
to the Miramichi?
Would
you take the Accused
on the video
MR. LEGERE:
data
to the Camp
base.
Goddamn
a data
Gagetown
people
base
when
are all
What are you talking about?
20
a
machine.
How can you compare
Miramichi
out, please,
from th
you never
inbred
down
They share so man
it would look like a bunch of rubber bands.
(Accused removed from courtroom.)
THE COURT:
25
Well,
we don't
might
take
until
2 o'clock
that
a few minutes.
we'll
up.
adjour
this voir
- 12:40
- 2 P.M.)
(Accused watching proceedings from c
Well, we are assembled again for the aft
sitting.
45 j025 '4/85,
I think
hooked
time.
COURT RESUMES.
30
the video
and we can continue
(NOON RECESS
THE COURT:
have
Mr.
Pugh
is the video
camera
on and
functioning?
MR. CLERK:
Yes,
THE COURT:
Mr. Walsh,
My Lord.
you had
something
to say?
part
of his cross-examination
until
the jury
10
The s
I just wanted to make that point clear.
point
I wish
address
to make,
My Lord,
to you on that Mr.
comments
is that during
Legere
made
and as far as the comments
has no bearing
l
a numbe
are concer
to me but he did mention
a name
15
that particular time.
I don't
that
is such a person
name
nor if there
I'm not aware
that because
lished
of anything
the voir
I expect.
know
he's
out th
I only
saying.
dire will
I know
any person
subsequently
the press
will
b
respec
20
ever
that person
of anything
something
about
in terms
of her
I just want to make it clear that I
privacy.
aware
is out there
of that particular
he said and I really
that.
I just make
nature.
don't
that point
know
anyt
An
clear.
25
reiterate
record
but
course,
Walsh
this morning.
person
I do say for the benefit
that they
has
remarks
should
just said
have
insofar
that the accused
Tha
of the med
regard
as the
for what
identity
may have mentioned
o
in
is concerned.
Well,
we are all ready
for the record
of the Criminal
45,02'4/85,
I made
Yes. Well, there's no way to strike it
THE COURT:
30
the motion
that
Code
to go again.
I have made
an order
for the exclusion
I ma
under
of the
10
made
by the Accused
made
it.
I don't
a great
he may have
remark
have
attach
said before
or your
a very
I didn't
comment
hard
catch
it impossible
deal
for me to
of importance
the jury.
I appreciate
the remark,
y
I somet
on it, Mr. Walsh.
time hearing
to
out of my
left ear
if you believe
that.
15
will
have
to make
some comment
(Jury in courtroom
all present.)
to the
2:15 P.M.
jury about
Jury
called,
THE COURT: A word just to the jury before we continue
the cross-examination here. I have, unfortunatel
20
found
it necessary
to make
650 for the exclusion
another
of the Accused,
temporarily, from the courtroom.
a brief
25
discussion
had made
the witness
which
I don't
intended
examination
which
8;
that
you retir
a comment
whi
the cross-examination
I do ask y
you heard.
remark
that was made
wa
or not but I ask you to igno
the Accused
concerning
se
at least
After
over
under
did make
the Miramichi
during
the
area.
That
the brief discussion unfortunately led to a furt
outburst
4& 3025"
during
as evidence
that
here
probably
know whether
the remark
30
ensued
the Accused
order
or comments
perhaps
weren't
at any rate
all that
from the Accused
serious
in their
your
cross-examination.
10
*****
CROSS-EXAMINATION CONTINUED BY MR. FURLOTTE:
Q.
Doctor
Waye
a necessary
reliable
15
Yes.
Q.
Basically
would
A.
to determine
if tests
is reproducibi
whether
tests
a
that
y
are not reproducible,
get the same results
results
20
factor
testing
or not?
A.
can't
in scientific
you're
looking
all the time
or the
for, then basically
they
not be reliable.
If I can't
analyze
or conduct
a test
and get th
expected result in a reproducible manner then t
something to be said about the reliability of t
test.
Q.
Now, if a probe was to attach itself to a fragm
25
which
only
target
data
had
say 70 or 80 or 85% percent
on it how would
that
of t
show up in an
autorad?
A.
That
level
of homology
than
the probe
binding
30
DNA of a 100% homology.
45 3025
14 85'
it would
be of less
to an equivalent
inte
amount
Q.
And,
again,
which
10
it's possible
are visibly
to see fragment
distinguishable,
leng
one has mig
further than the other and they could only be
maybe 2%.
,SI
A.
No.
Q.
They would
A.
I didn't
say that either.
Q.
How much
percentage-wise
Not
before
A.
have
no.
to be within
you could
5%?
would
visually
they
have
to b
see a difference?
Again, these cornefrom extensive empirical st
where
20
in my experience,
over
you
look at
and over
morphic
locus
visual
matches
are and how
where you analyze DNA's o
-
again
or different
and you
DNA's
look at bands
with
that
and you ask the computer
far out they
are.
a
are
how b
Most of the ti
you can lump the results into various categor
25
95% of the time everything's within three per
70% of the time
everything
I'm just making
up these
progression.
close,
30
Some
extremes
some will
be a little
number.
one perc
but
there
will
further
you gave.
i
be ver
away,
be the odd case where
far as 5%, the example
",02, 4/8>
numbers,
of the results
there will
a pinpointed
is within
an
it
So I can't
R.C.M.P. is based on the percentage of the siz
a band
and what
you
first do is make
a visual
10
what you're looking at. Comparing sample B to
C
that's
a visual
then would
of those
match
in my opinion.
tell me the size of those
bands
may be exact,
from each
other,
from each
other.
The
co
bans.
they may
they may be several
Th
be 1% re
percent
r
15
the interval
they're
What
within
a visual
You know what
the match
which
those
match.
that
window
bands
There's
interval
defines
should
f
no surprises
will
be because
yo
established the match criteria by looking at h
20
of visual matches and establishing how far or
tolerance the sizes will be.
sizing.
The computer
to verify
or confirm
size to this band
25
sizing
have
Q.
to ask a question
Okay.
match
45:J025..4/851
You
do I see a band
it can answer.
You've
window.
It's done
so we can go back
4,620 base pairs.
30
is not to my mind
the match.
and ask it a question.
how often
And you do the c
And
can't
that
to the dat
ask it a que
looks
how often
to
like that
do I see a ba
You have to ask it a questi
that's
explained
what
sizings.
You say --
the sizing
Now,
back
is
to
I believe you give
A.
We don't
Q.
No, not in the polymorphic
know
the length
of these
fragments.
probes,
but you tak
10
monomorphic
fragment
probes
or your markers
you know
t
lengths.
A.
Yes.
Q.
And they
should
you run your
be within
plus
or minus
2.6%
test?
15
A.
Yes.
Q.
So, as I understand
samples
actual
your match
and in polymorphic
fragment
2.6% of their
length
unknown
window
where
that
they
fragment
with
un
you don't
kn
too should
sizes
b
I suppose
20
A.
Of the mean
of them,
the average
of them.
two fragment sizes that are different.
the center
point
of those
and went
Yo
If yo
2.6 % up and
down those sizes, if they are visual matches,
will
2S
fall within
Q.
So your match
A.
Correct.
Q.
Now,
match
A.
Yes.
You'd
418"
interval.
is 5.2%?
whether
on an autorad
look at Band
4"~O2,
window
in depicting
to a certain
30
that
or not you have
I suppose
that would
a v
be s
degree.
look
at it and you make
a decision
C and I decide that they're a v
Q.
And this
verify
10
A.
No,
is when
you use the computer
your visual
I just
matches?
finished
saying
matches
with
your
visual
size
for them with
Q.
So the computer
A.
No,
for giving
sizing
that you don't
the computer.
veri
You
the computer.
is just
them
for placing
a character
them
that
in b
you can
15
to the data base with,
yesterday,
all this
eyes.
throughout
a size.
the world
sort of analysis
People
don't
have
As I mentioned
throughout
is done
computers
sc
strictly
wi
in research
or clinical labs to do this sort of thing.
10
Q.
Okay.
So if you
looked
at that
and your
comp
sizings told you they were 7% apart would you
it as a match even though it was a visual mat
you?
A.
Myself
Q.
Yourself
A.
I'd score
Q.
You'd
A.
Yes.
as a scientist?
25I
301 Q.
.',
":2',
.IIJ,.
it as a match.
score
And even
would
as a scientist.
you
it as a match.
if the computer
score
sizing
it as a match?
says
it's
10%
can't
A.
see that
My eyes
they are different.
are a much
better
instrument
than
the
10
computer.
15
The computer's
Q.
How does
the computer
A.
You want
to know
computer
does
Q.
Yes.
A.
The computer
an aid.
know
about
how to find them?
the process
of how the
this?
system
at the R.C.M.P.,
if you c
a computer a thought process this is pretty m
it does.
You take
the x-ray
film,
mounted above that.
it on
There's a video
lighted box, a light source.
20
put
You lock on the image. Y
center it on and you focus it, etc.
You lock
image
a comput
on to a video
camera.
There's
program that takes the video image and transf
into
25
something
it computerizes
that
down
lanes,
the track
change
density
the computer
that video
computerized
identify
30
that
image
draw
image
of your
tracks,
and wherever
in density
it will
is and how dense
can understan
if you will.
autorad
and then
there's
draw
it is.
it wi
it will
darkness
a peak
as to w
At the end
process it will find the center of that peak
compare it back to the centers of these peaks
.",02'
4/85;
fingerprint
tests
there
which
and sometimes
People
happens.
you get a smear
do th
or a blotc
10
has nothing
to do with
imperfection.
thumb
print
The computer
or smear
It's
the test.
and,
will
just a
go down,
again,
that
sees
has noth
do with the DNA you analyze, it has to do wit
you did the test, and it will pick it up at t
15
likely
tell
or the darkest
it to ignore
band.
that
Well
because
it's either
no
There's
so
lane or you know
it's not a band.
operator
at that
control
you as the
level.
And
then
you
struct it that there are two bands and it loo
20
the next two likely candidates.
Q.
Or when
have
there's
to point
one here,
25
A.
Well,
got
this
place
region
there
45302;4155
where
for the computer
isn't
a band
aspects
and s
it there.
where
and you have
region.
doesn't
isn't
a faint
and you directed
p
It wil
find anythin
If you direct
there's
you
of the computer
and go to this
If it still
but there
on the autora
in a situation
There's
region.
can't
here
that
this
bands
it.
you are again
to ignore
30
measure
here.
faint
them out
something
band
very
band,
on~ but there
the computer
it to th
we can't
were
s
a fai
to look
i
can't
see.
The computer
is only
looking
at a
10
computerized
through
thing
more
image
a light
with
of the video
You're
box.
an instrument.
sensitive
camera
reflect
looking
at the or
The human
eye is mu
than a four hundred
dollar
vide
camera.
15
Q.
Is
there a telescopic lense on the video came
might
A.
improve
I'm not sure you would
the eye.
20
I
it?
The eye's
Q.
I take
A.
I do.
Q.
Do you wear
it you don't
your
improve
a pretty
wear
glasses
it to the level
good machine.
glasses.
when
you visually
in
I have
loo
the autorads?
A.
I wear
glasses
so many
251
Q.
A.
I do that.
of them.
So you do need
Again,
because
visual
I'm retired
aids.
from doing
this
professiona
so I guess if I were the scanner at the R.C.M
I probably
30
4S ;0)7'
418S I
I'm not.
should
wear
glasses
if I were
doing
it make
it a little
any distinguishing
10
A.
Well
the autorads
This
is just
more
themselves
for a visual
anyway,
because
they're
markers
would
to see if t
characteristics?
gel is 20 centimeters.
experience
difficult
impact.
Test
will
always
never
reach
this
The width
o
samples, in my case
never
be at the extrem
flanked
by markers
so t
15
trols
inside
portion
be at the extreme
of that
apart
There's
and so a lot of the outsi
of the gel is eaten
furthest
ends.
anything
S
up in controls.
could
be would
be quit
closer than 20 centimeters so it would never b
20
inches
order
Q.
or 2 feet or a foot.
of this
be more
of distance.
But the further the lanes are apart it might b
little
25
sort
It would
more
A.
If they're
Q.
Yes.
A.
It would
difficult
the exact
be more
to see if there
is a dif
same mobility?
difficult
the further
they
ar
apart.
Q.
30
It would be something
room
if maybe
and if you
that
45 :'025
4185
they
like
two people
one is an inch taller
stand
them
20 feet apart
are the same height.
standing
than
the
you might
A.
You might
Q.
In a circumstance
be able to, yes.
like that would
you
also
re
10
your
visual
measuring
observation
tape
rather
and measure
than
them
say take
to see how ta
are?
A.
If the question
height
were
or different
are these
heights
people
the sam
I'm not certain
t
15
measuring
You
it's
tape
line them up;
five
what
question
heights.
25
Q.
height
are they
wh
foot six or si
different
it really
the same height
they are.
I'm just trying
testimony
h
does
or different
on your visual
than
are that height
to compare,
I understand
to measure
the gel you kind
4,"",
matter
are if you are asking
to know how tall
better
five
confir
Now if I wanted to go to the popula
of the computer
4SOWo
they
people
No,
doesn't
the same heights
and say how many
your
30
it really
six foot two, they're
Or if they're
matter
to absolutely
foot ten versus
four versus
20
is needed
and f
you to say that
the
of disregard
sense because
computer
Doctor,
then
fragment
that
your
measurements.
t
mobil
and rely
eyesight
t
is
Q.
Designed
A.
It's all designed
Q.
You mentioned
it.
on empirical
observation.
10
computer
minus
could
2.6%,
radius,
A.
151
10
I
in relation
measure
of the computer
move.
5%.
The
be different
would
by 5.
The
A.
Could
be.
Q.
Could
be.
A.
Using
that
Q.
Now, what about if you run that same gel agai
sizings
allover
25
would
be different
A.
Now,
tomorrow
same DNA.
got the one tes
you decide
to start
y
again using the same person's DNA an
your matching
That would
values
if you run the
in lane B you have
run it in a different
within
by 5%.
criteria.
same gel but
one gel.
were
gel.
you would
window?
be my expectation,
obtained
Again,
yes.
in the first
That's
place,
ho
from
gels.
30
Q.
Now,
let's
out with
"'0'.
The band .wouldn
Q.
DNA that's
.'°75
within
sizing?
the band wouldn't
sizings
window
out by plu
fall anywhere
Well
not that
.,
say this was
so it could
I suppose,
to your match
say day number
a thousand
1 when
base pairs.
you run it yo
Okay?
So da
based
on the empirical
go up or down
data would
as much
as a window
be that
it c
of 5%.
I'm
10
going
Q.
to do the math
here.
No. No.
A window
for you.
Okay, so day one we corneout at a t
base
pairs,
nine
hundred
of 5%.
day two we could
and fifty
I'll do the
Okay.
base
expect
pairs
anywhere
to ten hundr
15
fifty
A.
Well
base
pairs,
you just made
up and 5% down
THE COURT:
back
You
if that's
roughly
a window
of 10%.
so you made
lose.
You
failed
5%.
You went
a 10% window
on math.
by my
Better
to the witness.
20
MR. FURLOTTE:
So the 5% would
bring
you then
from
1025?
A.
50 base
pairs
in the range
25
Q.
out of a thousand
of 5%, yes.
Now,
in day two if you run it and you
base
pairs
thousand,
again
which
would
be within
right,
which
is what
would
you put a match
get back maybe
30
A.
That woul
--
If the question
samples
the
corne at
2,% of t
you would
window
expec
of that
2,
to 950?
were
we're
on two different
analyzing
days
two unkno
and asking
if t
is the same the two results that you have would
.~<o"'c
4,""
J
15
I
yes.
Q.
Did you explain
to the jury yesterday
specific
binding
was?
A.
I don't
remember.
Q.
Could
A.
You add the probe
I can explain
it.
nonspecific
binding.
DNA or binds
specific
really
binding
and if the probe
that has the complementary
specific
If the probe
in general
binding.
non
Do you recall?
you tell me what
target
what
binds
tha
in gener
to the membrane
It's binding
to th
sequence
binds
is
places
that's
where
It's binding based on prope
shouldn't.
20
other than sequence complementarity.
Q.
And how would
A.
Anywhere
entire
membrane
in between.
itself
being
Sometimes
is cloudy
ground,
show up on an autorad?
from nondescript
25
bands
that
smears
black
and you qet all va
it swirls,
and there
or the lane itself
on that background.
in a lane to
smear~
is bands
is cloudy
the
on that ba
and there
You get all sorts
variations.
30
Q.
So then
it's a matter
is specific
on your
os ~o~s 'o'.s:
binding
of interpretation
and what
interpretation
as to
is nonspecific
of the autorad?
b
experimental
10
utilization
A.
No.
Q.
So the fact that you're
of this procedure?
dealing
with maybe
co
taminated samples or degraded samples that do
make the technique more difficult?
A.
It's an aspect
of the
forensic
application
th
it difficult.
There's
aspects
of clinical
an
15
research genetics that makes those tests equa
difficult.
Different tests and there's diffe
things that can make the tests hard to do.
Q.
If your match
A.
too large
Not in my opinion because
-
this
but
for a living
thing
25
Q.
isn't
I won't
really
isn't
I believe
A.
This
Q.
Yes.
A.
First
have
call
do you run
Maybe
and, again, I don
and yet
if my eyes
factor
you could
volume
t
so the match
you a similar
before,
tell
it falls within
it a match,
a determining
I asked
in court
page.
anymore
a match
window
were
45 ,025 4185,
was
risk of having false positives?
20
30
window
there.
question
VI, page
read your
the
115, to
answer.
answer?
I'll read
anything
the question.
to do with
It doesn't
the question
you
see
jus
A.
you.
This
Okay,
the question
is the page.
"I see also
was:
in the Ye
10
page
129, that Dr. D'Eustachio
cerned
that choosing
acceptable
false
level
positives,
a match
of risk,
having
And
that possible?"
appeared
window
that
that exceed
there
too big
the answer
to be
is the ri
a match
was:
window?
"Well, i
15
raising
the concern
20 percent
apart
am running
the risk
if you have
20
would
going
we're
window
Certa
the largest
the whole
gel,
from top to bottom,
That's
every
about
using
again,
the match
if the match
things
that don't
look like matches,
20% apart,
and you
they're
risk of a false
not the way
then.
eye and make
And,
that
here
a match
positive.
it's done.
Th
the extreme."
the answer.
talking
ex
our mat
saying
you that
"as.
a match,
your
example
.s "o>~
them
to overrule
allow
30
that's
call
for bands
of false positives.
consider
everything
the question;
25
and still
to be a match.
context,
if I allow
a huge match
be let's
criteria,
that
the call
criteria
when
and I'm
is too big a
as
let the comput
they're
It's
c
not you
not reality.
It's not the way
It's not the way it's done now.
it wa
decision.
Q.
But all matches
Right.
aren't
as obvious
as t
10
example here in lanes Band
A.
Well,
there's
certainly,
difficult
to call
of fact most
situation.
C on P-l58(lO)?
matches
than this
of them
are.
But there's
that
are more
As a m
schematic.
This
also
is a very
things
artif
I've ever
15
forensically
five year
Q.
How
A.
old could
long does
these
20
are about
as easy
as that
to call.
somebody
to do
do it.
it take
to train
tests?
To physically
do the tests?
I could
show
some
how to do it in a weekend.
Q.
A weekend.
A.
That's
how
assuming
probably
Q.
Then
it's quite
A.
No,
I didn't
paid
analyze
say that.
attention
we could
They may
there
but they would
Well,
qualify.
each
a simple
and
followed
other's
If they
in a w
followed
along
get the test done
in a
to do it again with
be able to give
hour
DNA
alon
procedure.
not be able
another
and
to run the test
attention
end.
THE COURT:
.1,..,-,2,"";'
it takes
they paid
could
25
30
long
it a once
and the jury will
jus
don't
I don't
think
it's a reflection
on the
I
10
technology.
to teach
Q.
It's probably
a reflection
on my
this.
have a definition for what you would ca
Do you
[natural population]?
A.
A
natural population?
exists
151
and you didn't
Q.
How about
A.
I would
Q.
Would
Canadians?
you
natural
A.
say that
tagged
I
of which
Hardy-Weinberg
to it, none
reflect
Q.
In an absolute
sense.
A.
In an absolute
sense.
Q.
In a sense
A.
I wouldn't
that
of reality
of which
fit a
I'm aware
then
that.
o
the way biology
it's not proper
to natural
I was
sense,
to
popula
beginning
in science,
and white.
sets out in the theoretical
to
in any species
of no situations
are black
tagged
sense.
That's
principle
agree with
or life that
4; 'OJ, 4:8;,
populati
has a lot of
concerns
reality
in the absolute
the Hardy-Weinberg
301
Are we a natural
population?
populations
25
somethin
put together.
It has a lot of theoretical
none
implies
say so.
requirements
20
Natural
t
bi
Hardy-Weinbe
in the abso
over the course of time by those factors, but i
absolute
sense
that's
a rule that's
not adhered
10
by natural
absolute
populations,
all those
conditions,
i
is a theoretical
m
sense.
Q.
The Hardy-Weinberg
A.
It's just that - it's a principle.
model
would
principle
be a good way
A theoretic
to describe
it.
It's
15
described
that's
before
incorrect.
as the Hardy-Weinberg
rule
and
It's not a rule or a law,
it
principle.
20
Q.
But it doesn't
A.
Nevertheless it works.
absolute
sense
fit any populations?
It doesn't
but all these
fit in the
factors
that you
c
deviate somewhat from, not the absolute sense,
populations don't completely randomly mix but
So in the absolute
a fairly random process.
you haven't
25
you really
selective
met randomness
are, unless
forces
but
you talk
causing
people
se
in the global
the extreme
to inbreed
se
of
if y
will.
Q.
30
Tell me if I'm wrong
statement
you're
principle
is a theoretical
populations
45 :;0254'"'
then.
but
saying
As I understand
that
if we use
you
the Hardy-Weinberg
model,
it doesn't
it it will
f
still work
years
ago.
forensic
It wasn't
worked
scientists.
They
up by practicing
had no idea
its imp
10
in the court
or its use
to rationalize
that
as a theoretical
there
sort of view.
model
models you layout
are several
in forensics
and with
so it's h
It was work
all theoretical
the parameters for that mod
of them,
none
of which
in th
15
absolute
sense
biology
fit natural
and life itself
populations.
there's
nothing
With
that's
absolute.
Q.
Now,
you are not contradicting
what
you had t
earlier but maybe I'll show you - maybe
20
a fuller
explanation
but when
I asked
proceeding
require
you a question
the question
discrete
was:
alleles
before
you could
A.
That's
that question,
Q.
And you
25
for the benefit
of the j
before
"But
you c
in anot
it would
and no measurement
use the Hardy-Weinberg
s
i
rule?"
I
301
said you can't
would
fit, humans
A.
That
all of those
Q.
Yes.
A.
No, I can't.
yes.
think
of a population
included?
conditions
I can't
think
are met?
of a closed
popula
nothing in, nothing out, no selection, absolu
4S ,07S
4f6S,
Q.
Is that the way
A.
Unless
just
10I
Q.
you're
said,
I view
quoting
it?
someone
else,
that's
what
and it's not true.
Your statement here - and you're talking about
paper that you're a co-author of --
THE COURT:
You know,
hours
aren't
we back where
ago and reviewing
exactly
we were
tw
the same
thing
same questions
to th
15
you're
putting
witness
hours
exactly
and getting
the
exactly
the same answers.
ago.
MR. FURLOTTE:
I only have
the exact
a few --
same answers
here.
No,
I'm not get
I'm not getting
20
exact
same answers.
And
there's
only
about
thr
pages left - four.
You
fellows
state
wrote
authors,
25
30
'; "°2; 418;'
if you
followed
the way
their
paper,
you were
one of the
and outlayed
beginning
t
that
for an ideal
their
requirements
situation
population
that would
A.
I'm pretty
certain
Q.
And you were
A.
I was one of the authors
"I can't
fit it, humans
I just said
the co-author
that
of that
at th
think
included."
too.
paper?
of that paper.
you're
Q.
Yes.
A.
Well
asking
me if they've
been
proven?
10
the answer
expected
Q.
can be given
the facts upon
found
clear
no.
They're
to be met.
Let me ask you another
weight
15
is a crisp,
question,
Doctor.
to an expert's
which
the opinion
Bef
opinion
is based
in
mus
to exist?
MR. WALSH:
Objection,
MR. FURLOTTE:
My Lord,
No, My Lord,
that's
I think
a legal
it's
ques
also
a sci
was
comin
one.
20
THE COURT:
A.
I'll permit
What was the question?
MR. FURLOTTE:
If I as a student
forming
an opinion,
opinion,
25
which
me?
A.
I based
How would
That's
a tough
4,"0>0 41"5'
that
opinion
it up with
wouldn't
do well.
Q.
I'd get a nice big
A.
You would
on, what
That's
you
or my experi
If y
and you had no exp
and you made
conclusions
not what's
"F", wouldn't
get a talking
would
you put me in.
an idea
s
any of the facts
my paper
situation
to back
you a supposedly
proved
you mark
with
of yours
giving
and I never
into my class
30
the question.
to.
been
y
don
I, a failure
there's
been
no selection
can be classified,
on individuals
b1ah-b1ah-b1ah,
and al
all these
10
different things in Hardy-Weinberg, I'd say get
there
raised
and prove
that
issue
assumptions
I'm not sure anyone's
it.
that you're
trying
to prove
t
model.
I
in the last half
ho
laid out in a theoretical
said probably
a dozen
times
ever
1,
that it's not expected and that it's not even
thing
up for discussion.
MR. FURLOTTE:
20
I have
no further
THE COURT:
Re-examination
MR. WALSH:
Yes, My Lord.
REDIRECT
Q.
Waye,
outset
of your
while
25
Mr. Walsh?
EXAMINATION
Doctor
BY MR. WALSH:
Mr. Fur10tte
testimony
at the R.C.M.P.
to a proficiency
you would
test
run these
questions.
yesterday
asked
you
in cross-examination
Lab you were
to more
ever
or less
RFLP techniques.
subject
evaluate
Do you
r
that?
A.
Yes.
Q.
Do you know
a defence
3G
William Shields?
A.
., "J2~
416',
I certainly
do.
expert
by the name
of Doc
MR. WALSH:
I have
no case
specific
This
--
is not
10
about
this
case.
I'm talking
may have conducted
and I'm asking
defence
THE COURT:
personally
if his work
about
a case tha
himself
somewhere
had been
reviewed
expert.
Well,
I'd permit
By case
the question.
15
specific
evidence
which
is being
put over
as
this witness, you're talking about this parti
case?
MR. WALSH:
case.
20
THE COURT:
Well that's all right.
MR. WALSH:
Did he in fact review
case
that you did yourself?
A.
25
Yes, anything that dealt with this part
Yes.
for ano
R.C.M.P., a case in Ottawa, he was the defenc
and we met prior
privately
both
went
the data
over
results
to going
him and myself
together,
to him and him asking
to trial.
with
We
all the da
my explaining
t
me questions,
j
two scientists would discuss any data, and at
end of that
~o "025~;85'
your work
In the last case I did as a member of t
expert
30
Go ahead.
he formed
his opinions.
MR. FURLOTTE:
My Lord
I believe
the Crown
is misleadi
10
the court
here because
I think
we should
go on
ask about the general population aspect of it a
MR. WALSH:
I pu
You asked about a proficiency test.
question
in relation
to a proficiency
proficiency
test deals
with
technique,
am I correct,
A
test.
how you run an RFLP
15
A.
20
Doctor?
Correct.
MR. WALSH:
And
THE COURT:
Well, what
MR. WALSH:
Yes,
I have
THE COURT:
What
is it?
MR. WALSH:
Mr. Furlotte
that's
what my question
-
was.
you got another questio
have
another
raised
question.
with
you
the whole
qu
of a match window yesterday, and you testified
the R.C.M.P.
2.6%,
25
A.
Yes,
have
a 5.2% match
window
plus
or
is that correct?
that's currently the match window that's
used.
Q.
30
Just
to clarify,
were
referring
match.
use
4~ ]O2~
4I~~ I
when
you were
to the fact that
In the clinical
computers
or do they
testifying
you rely
or research
today
on a
setting
rely on a visual
do
match
tive protocols.
That
very well
may be called
10
inconclusive
match.
Again,
this match
Q.
But
although
I haven't
window
if they
your
was
eye tells
done
you it's
case work
there
implemented.
in fact did that that would
be in
favour?
15
A.
Well,
you've
thrown
match
so certainly
out a result
it would
that
you know
be in favour
of th
accused.
Q.
That would
that wouldn't
20
A.
Correct.
Q.
If with
25
A.
Q.
visual
match
inside
the match
match,
without
No,
I would
A.
to a forensic
to a clinical
criteria,
window,
a visual
would
s
or research
if you did not
told you that
it
that be called
match?
not call that
would
call
feature
but the computer
My understanding
would
30
apply
the R.C.M.P.
R.C.M.P.
45.3025,4/85i
be an added
a match
nor do I thi
do that.
is that
a match
the only
time
is if it visually
within
the 5.2% match
window,
That's
my understanding,
yes.
is that
that
matched
th
a
correct?
I
10
A.
It's not unusual at all.
They're different pe
doing somewhat different procedures.
Subtly d
but it certainly is the norm that both in clin
research
environments
that
different
different
criteria.
I know
instance,
each
labs have
in hematology
lab lays out their
labs
parameters,
15
example a routine blood run, they layout
levels
of what
they
from lab to lab,
are very
20
Q.
Yesterday
A.
Yes.
Q.
That's
stain
that
:'005
.MBS
.
you about
your
you published
the stain
for the R.C.M.P.
the electrophoretic
what
you have
on before
T
with
that you put
fi
r
in
lab you put thi
gel is run,
is th
concluded.
The FBI put
the electrophoretic
gel
starts
correct?
A.
Yes.
Q.
You were
experts
"
to hospital.
correct?
2S
3C
and it var
as well.
asked
lab which
bromide,
opinion
on after
tests
Mr. Furlotte
to ethidium
a positive
from hospital
standardized
at the R.C.M.P.
your
call
thei
consulted
by defence
in the United
States
lawyers
over
that
and defe
paper
from the FBI's lab because they used a procedu
10
that
Q.
I
in our hands
And what were
gave
they
R.C.M.P.'s
system
A.
A superior
system,
Q.
Mr. Furlotte
less accurate
attempting
was better
results.
That
to argue?
or worse?
yes.
read you
some excerpts
from the
15
of Technology
Assessment
as the O.T.A.
Report,
A.
Yes.
Q.
That
is a branch
Report. You referred
do you remember
of the Congress
that?
of the United
States?
20
A.
Yes.
It's
finding
an organization
for Congress.
that basically
When they pass
does
legislatio
a certain area these are the people that writ
reports upon which they can base their decisi
25
Q.
I am going
to refer
area where
Mr. Fu~lotte
the conclusion
particular
A.
30
,'~ .W5
"0'"
Okay,
paragraph
Valid
read
of the O.T.A.
this passage
DNA Tests
you to the bottom
here,
from.
of page
Would
beginning
you
with
t
the two sentences
is all under
and Reliable".
the heading:
The passage
g
accurately
disclose
differences
among
DNA patterns
that
Questions
humans.
reflect
about
the
10
validity
of DNA typing,
supporting
the technologies
differences
the knowledge
that detect
or the underlying
the techniques
court
either
geneti
principles
per se, are red herrings
and the public
b
of ap
that do
a disservice."
15
Q.
Do you agree
A.
I certainly
Q.
Correct
with
that
statement?
do.
me if I'm wrong,
Doctor,
what
they're
ferring to - what they're accepting is the pro
that you have outlined in exhibit P-158(6) an
20
P-158(9), is that correct?
I
A.
Yes.
Q.
And what's
outlined
in relation
251
Yes.
Q.
Mr. Furlotte
was
with
yesterday
respect
should
suggested
opposed
some
",02;
.
'S,
asking
of interpret
be using
you a number
with
more
that perhaps
to you mentioned
5, of course
available.
in terms
to P-158(lO)?
A.
you
30
here
The DNA typing pr
probes
maybe
ten
some
depending
In your
whether
of questi
or not per
and I believe
should
labs use
3, som
on how much
experience,
apart
be use
DNA y
from
id
with
two.
I can't
side of siblings
10
recall
match
ever
seeing
at three.
anyone
o
Four
and fiv
You're
referr
never.
I
Q.
Have
you ever
seen
siblings
--
brothers, sisters --
A.
Correct.
Q.
Brothers, brothers, sisters, sisters.
Have y
seen
using
15
them match
highly
A.
polymorphic
Generally
within
siblings
match
sufficient
20
at four or five probes
probes?
a family
with
at a couple
one resolves
that
Q.
I take
spect
person,
the
probi
On occasion
them.
number
second
of brothers
two in
Generally
the t
ambiguity.
You need
not an
it that would
to people
individuals
of probes.
5 or 6 or 10 probes
25
one probe
to distinguish
seen out of a large
match
if two
to tell
also apply
who were
for example
two brothers
even more
further
cousins,
apart
removed
with
from
half-brothers,
u
nieces.
A.
30
Yes.
Siblings
bounds
of that
assume
different
parents.
4~
3O2~
418~
I
are the extreme.
immediate
patterns
family
Once
you
people
because
they
lea
very
have
q
A.
I
Well I haven't analyzed
a lot of cousins
intuitive.
that makes
The thing
in that
brothers
and
they have
the
10
share
the same patterns
parents.
As you move
cousins
is that
further
and half-brothers,
variables
that
they
share
only
they don't
apart
etc.,
share
you're
adding
the same paren
It's
one parent.
and talk
intuitive.
15
Q.
You were defining or what were you -using
20
A.
the term
this morning
are you defining
What
are you referring
Well
in its extreme it's a population that th
mates
within
as an inbred
your
chances
carriers
the family.
when
two carriers
because
they're
thousands
why
that
either
418>
it's rare
come
related
of years
genetic
together
lab,
in virtually
Us
in the populati
very
often
it
and that
fo
every
has been
in religions
it incre
diseases.
by blood,
type of marriage
formally
Clinically,
society
discouraged
or on a village
village basis, but in virtually every society
taboos
45 ~O25
genetics
of getting
of diseases
population?
to?
see it in the clinical
30
population
What
family
25
[inbred
You
about
shared
blood.
one genetically
in the lab.
10
bred mouse
mice,
looks
the same,
There's
lines.
all sorts
that over
you can make
very
genetically
than
any two wild
of what
You can breed
in such a way
generations
and we can do
close
we call
mice,
strains
a large
a mouse
number
that's
to its siblings,
mice,
o
going
much
m
and you do that by mat
15
brother
and sister,
all these
over
crosses
again.
within
You're
the same genes
diluting
child
back
a family
basically
over
to mother,
and over
and
over
and ove
creating
childre
and over
again
an
out the variability.
20
Q.
So how would
example?
that
apply
in a human
population
What kind of forces would you expect
a highly inbred or an inbred population?
A.
25
Over many
for people
family
would
30
generations
to marry
or share
have
have
Also,
factors
of people
in and out of this
cause
obviously
you'd
process
if those
they
you would
is there
be introducing
And
within
if you will.
to look at other
moving
like
to be the
children
that way
to be the custom.
in the breeding
4185,
and have
blood
to the gene pool.
45 ,025
it would
a large
population
a new var
people
contribute
partici
variab
Q.
And you would
have
to have
no immigration
into
10
area or migration
A.
Well,
you would
out from the area?
have
to minimize
those
effects
those people participating in the breeding pro
would
Q.
You
introduce
new variability.
said this morning
when
Mr.
Furlotte
was
15
questioning
bred
on this aspect
populations
different.
kind
20
A.
that even
in the world
What were
of examples
Were
they
in highly
are genetic
you referring
to there?
you referring
to?
Usually native or indigenous populations in t
world, populations that are isolated.
There's
scientifically, a wonderful example from the
Polynesian Islands.
It's particular islands
have only been colonized for some four thousan
25
years.
until
that
They
had a small
recently
founding
people
30
the population
population
So you really
population.
will
confine
and all their
ancesto
they're
all go back
Even
population
has been
are starting
and because
relatives
founding
in those
off with
a colony
on an island
to a small
instances
their
founding
the varia
that you see with these probes is comparable
.,
:'°,,,
'.'8;.
J
technique
you can differentiate
between
people
A.
Absolutely
Q.
You mentioned this morning with respect to
regard
no problem
to subgroups
said you would
in the example
I just ga
under
the Caucasian
be foolish
not to state
in fact subgroups
within
-
race
the Caucasian
that
t
race.
15
example
you mentioned
geographical
of religion
other
nature.
A.
Yes,
Q.
You mentioned
A.
Because
this
30
been
a nice
was
both
in this
for quite
things
of
summary?
at French
to do what?
starting
founded
Canadi
Why did yo
some time
point.
there's
geographically
country,
a tendency
French-speaking
., '''2~4'°"
of language
be my opinion.
Canadians
that's
to marry
in that
may b
populations?
populations
way
because
that you looked
country
French
people
of the same language,
that would
at those
geographical
religion,
stay together,
Am I correct
and English
25
location,
people
20
language,
been
English-speaking
fairly
of English
and they have
an
stayed
and it's because
for French-speaking
people
You kn
ther
people
to
and English-speaking
p
people.
An overall
A.
The bottom line is they're both variable and t
10
frequencies
a matter
base
in both
populations
of fact when
population
are comparable.
I compared
that was
the global
compiled
in Ottawa,
would be Canadians from all - that would
French
and English,
when
mi
you compare
t
includ
that
to
15
exclusively
I would
French
make
or to people
the leap of faith
predominantly
English-speaking
from Vancouver
that
that would
Caucasians,
the
population from Montreal was no - the frequenci
were
no more
similar
to the Armed
Forces
popula
20
which
included
French
as it was
to Vancouver's
population, so there didn't seen to be a gradi
of similarity going from all French to part Fr
to predominantly
25
Q.
Based
on that
Caucasian
English
30
Can you
Q.
Do you
I
any reason
should
within
why
not have
it for the
a Canadia
French
and
forensic
p
calculations?
repeat
that?
see any problem
Caucasians,
of calculating
41B~
base
Canadians
Canadians,
.,~ :'0?~
is there
data
for forensic
A.
English.
I lost you.
in having
French
in the same data
frequencies?
and En
base
i
101
A.
Yes.
Q.
And you used an example of 1 in 1 million and
9 million, am I correct?
A.
I may have
Q.
Maybe
I'm wrong
could
you explain,
used
that
example,
yes.
But perhaps
in that.
please,
just
to start
so we're
clear
I
15
that what
is meant
difference
A.
Again,
as opposed
this
to a forensic
is my opinion
statistics.
20
by a statistically
signific
difference?
as I understand
I'm not a statistician.
the
What you
looking at at these end numbers is the product
multiplying five numbers together.
Now, at t
you may corneup with 1 in 5 million in one pop
and 1 in 9 million
in another
No
population.
there's a number of different statistical test
25
will
tell you
million
The
and 9 million
forensic
of those
what
30
is a difference
and that's
significance
are very
the test
common,
those
that there
of that
events
is designed
moderately
say rare
rare
common,
fairly
obviou
to my mind,
and that's
to do, define
or it's
in my opinion.
betwe
And
preci
whethe
rare,
I even
and
ques
whether they're statistically significantly d
45 ,025
4'05'
million
\0
to 1 in 9 million
all the differences.
really
be looking
frequencies
different
really
because
you're
But the thing
that you
at for significance
at the beginning.
and even
if they
that meaningful
Are
is I th
they
are that
whether
multi
really
different
it's one
in 63
15
in 53.
And when
that much more
as opposed
I think
20
you get to the end is it rea
common
to 1 in 9 million.
forensically
very
likely
came
from someone
of reality
common
25
Q.
That
to a level
it bring
where
you say
tha
That's what to me fo
else.
Did we bring this down i
where
I have
to think
is thi
now?
leads
figure
Does
one in 5
if you use the 1 in 5 million
significance means.
realm
if something's
to the next question.
for a 1, 2, 3, 4, 5 probe
Would
match
a pro
as giv
the R.C.M.P. - given by the R.C.M.P. lab for
use
su~h as to be done
given,
is attempting
the figu
to be expressed
by
figure?
30
A.
To my mind whether
the event
you'd
The
your
45302,4/8"
what
in this case,
like to -ruler
is common
or rar
size of that denominato
of how common
or how rare.
The results
using
that
type of procedure
are b
10
in favour of the Accused, and the scenario tha
method
was
set up
at the beginning,
avoid
-
that the method was design
the scenario
is the instance
where
we are trying
t
in the population
have a fragment say at this level that's very,
15
rare,
you also have a fragment at this level
very, very common,
what we wanted to avoid is
possibility of confusing a very common event w
very rare event.
What we do is we add them to
and we make both of them more common than they
20
actually
So it's designed to avoid these
are.
prejudicial numbers.
do.
25
Unfortunately,
that becomes
Q.
What becomes its criticism?
A.
Initially
it was criticized
conservative,
bigger
30
That's what it was inten
then
and make
In favour
A.
Again,
the numbers
common
because
know
because
it's evolved
it even more
Q.
of who?
In whose
are distinct
too
to let's make
favour
would
towards
included
but you
it was
conservative.
will move
you've
its criticism.
more
include
that
being
mor
events
tha
them
anyway
avoid mistyping and misrepresenting the frequ
453025
14,851
10
tell us what
A.
Well,
speaker
it's a symposium
number
of speakers
time -there
a keynote
where
is?
there was
and they were
Generally
are workshops
at these
given
types
or symposia
a limite
a lot o
of meeting
where
15 or 20
15
speakers will give their talks and they have 7
minutes
to get the message
speaker
will
symposium
give
their
as Thursday
to four invited
across
talk.
morning
speakers
and then
At the
was,
of which
the
specializ
it was
limit
Ken Kidd was
20
I
first speaker and he basically ran that sessio
Q.
And who is Ken Kidd in the scientific communit
A.
He's
Q.
And what
A.
Very,
a professor
at Yale University.
reputation
very
high
does
he have?
reputation
in my
field
in human
genetics.
251
30
I
Q.
A.
Q.
Is he to testify
It's my understanding
The
fi~al question
than
fruit
were
45.302514,851
at this trial?
anything.
flies
being
yes.
is just more
During
your
for clarificatio
testimony
in a jar and to dispel
flippant,
the fruit
you mentio
any notion
fly is known
as
Genetics is the study
genetic questions -10
inheritance and if you want to ask questions o
inheritance a nice organism to pick is an orga
that you can breed very fast and they have la
numbers of offspring and they have characteris
that you can measure easily.
What color are
15
eyes, how many wings do they have, and you ca
flies and monitor these characteristics over
period
of days whereas
people
you would
have
20
large
if you tried
years,
or animals
but you can look
at thousand
be waiting
cages,
to do that
fruit flies in a closed environment like this
it's a very inexpensive way to ask very sophi
genetic questions.
25
MR. WALSH:
Thank
THE COURT:
One question.
you.
I have
no further
questions
In my case it's old age
gout but why is it that you don't like to giv
blood?
A.
I faint.
THE COURT:
30
You had our curiosity
jury would
want
I ask that he be stood
THE COURT:
Let's
recess
half
until
aside
4 o'clock
an hour.
(RECESS - 3:40 - 4:00 P.M.)
453025
,4,B51
I think
me to ask you this.
MR. WALSH:
on for about
aroused.
My Lord.
and then w
10
MR. WALSH:
No, we won't
THE COURT:
Well
MR. WALSH:
Fine,
My Lord.
THE COURT:
Well,
let's
video on?
let's
My Lord.
talk about
Would
have
them
the jury
you check
in the mornin
that Mr.
Pugh,
in.
Jury called, all present.)
THE COURT:
Now,
you have
another
MR. WALSH:
Yes,
My Lord,
(Jury
Is t
in then.
plea
15
testified
THE COURT:
20
previously
You are still
witness
Mr. Walsh?
I recall
Doctor
John Bowen
in this
trial.
under
oath
Doctor
Bowen.
DOCTOR JOHN BOWEN, previously sworn, testified
follows:
DIRECT
Q.
EXAMINATION
You were
sworn,
BY MR. WALSH:
Doctor
Bowen,
the
last time
yo
testified, is that correct?
25
A.
That
Q.
And you're
is correct.
Genetic
Section
in Ottawa
A.
30
That
MR. WALSH:
in charge
of operations
of the Central
of the Mole
Forensic
Labora
for the R.C.M.P.?
is correct.
My Lord with
your permission
I would
lik
be able to take Doctor ,Bowen through his C.V.
THE COURT:
,,-3025"--851
Okay.
Q.
10
You have
a Doctorate
University
of Alberta,
that
correct?
A.
That
is
Q.
During
from
in Edmonton,
the
Alberta,
is
correct.
educational time you have won a num
your
of awards
151
in Biochemistry
and scholarships?
A.
That
Q.
And you did a dissertation
is correct.
of DNA in Hair
A.
That
Q.
Where,
Roots",
is correct,
when
in 1986 on "An Evalu
is that
correct?
yes.
and why did you prepare
this partic
dissertation?
201
A.
That particular dissertation was prepared duri
inservice
training
the Edmonton
in~ervice
25
Forensic
training,
one has to do.
Hair
Q.
I'm
Roots"
real
THE COURT:
'S.3a,."'asl
and fiber
Laboratory.
a research
I chose
the
It was
project
"Evaluation
for my particular
speciali
part
that
ev
of DNA
project.
going to ask you just to speak up a bit, D
Doctor
30
as a hair
Bowen
effort
We'll
has an extremely
for him to speak
train
him.
low voice
loudly.
and it
Q.
Does
this
also
include
the restriction
fragment
10
length
polymorphism
testified
A.
technique
that Doctor
Waye
about?
That. is the particular
technique
that we are
currently using in the R.C.M.P.
Q.
Do you have
experience
in other
kinds
of DNA ty
15
techniques?
A.
Yes,
I do.
I have
polymerase
or making
Q.
20
copies
you worked
respect
The particular
heard
I
I
30
45.3025
{4..B5,
Q.
A.
Q.
a method
of DNA prior
with?
with
the
of amplifyi
to analysis.
Who do you work
at the R.C.M.P.
from,
individuals
include
that
Doctor
with
laboratory
and Doctor
wit
who we ha
Ron Fourney.
of the Canadian
Science,
correct?
is that
I've worked
John Waye
You are a member
That
with
to DNA typing?
the R.C.M.P.
25
reaction,
Who have you worked
have
A.
chain
some experience
Society
of For
is correct.
You are also the
Technical
Working
"Canadian
Group
the acronym
is TWGDAM,
Laboratory,
is that
representative
on DNA Analysis
sponsored
correct?
in t
Methods
by the FBI Res
10
Q.
already
using
DNA typing
in case work
various
areas
of matching
population
various
other
issues,
I am going
what
genetics
data basing.
to ask you to speak
tell us, please,
to resea
members
up again.
or what
Woul
groups
15
associated
A.
TWGDAM
with
that particular
is composed
of two members
a member
from the Centre
Toronto,
about
labs
organization?
thirty
in the United
from the R.C
of Forensic
members
States
Sciences
from various
and several
Sta
members
20
the FBI research
Q.
operational
lab.
You compare
your
problems,
25
A.
Certain
make
suggestions,
have been
and various
(.,85,
and you discuss
etc.,
prepared
areas,
on DNA Analysis"
A.
Yes,
Q.
Would
that
in quali
yes.
Statistical
Standards
"Workshop
Laboratory,
o
etc.?
of the
is that
for
again
correc
is correct.
you explain
if anything,
.5-3025
other
headquarter
You are also a member
by the FBI Research
30
and their
techniques
guidelines
assurance
Q.
facility
your
involvement
you do there?
in that
an
members
from the academic
field,
particularly
10
statistics
and population
like Doctor
Doctor
Q.
Ken Kidd,
Bruce
And what
Weir,
kind
Doctor
individua
Stephen
Daiger,
a statistician.
of things
do you discuss
at tha
group?
15
A.
At that
group
the match
we discussed
window,
of criteria
have
Q.
certain
how to state
begin
doing
reg
what
for a match,
the population
How did you yourself
issues
a match,
to be in place
also how to handle
20
genetics,
genetics.
RFLP
typing
what experience do you have in that particula
aspect?
A.
Well,
RFLP
25
I guess
or Southern
seminar
with
Consequent
45.3025
,4'851
I presented
in 1988
RFLP
in which
in Ottawa,
Si
I became
typings.
I had a year's
and PCR typing
at
in 1978.
thesis
and did several
the group
to the us
of Biochemistry
of Alberta,
from case work
in RFLP typing
was when
my doctoral
to that,
so to speak
I joined
blotting
University
time during
familiar
30
introduction
to the Department
Edmonton,
that
my first
I was
of hair,
sa
inv
and in
as I said befor
101
A.
I have handled
hair,
stains,
vaginal
semen,
Q.
What
A.
A buccal
is a buccal
And
blood,
buccal
bloo
swabs,
sa
swab?
a scraping
of the in
the cheek,
the epithelial
cells
t
of the inside
of the cheek.
what
is
form part
Q.
liquid
swabs,
swab is actually
of the mout~
15
blood,
just to refresh
epithelial
everybody's
memory
cell?
A.
It's a skin
Q.
And do you have
cell.
any experience
with
any other
or substances?
20 I
A.
Q.
25
30
I
I have
attempted
pretty
much
You
14, eo,
nasal
I think
mucus.
it.
yourself,
actually,
include
training
is that
correct?
others
A.
That
Q.
How many
actual
accepted
or completed
or part
in these
of your
dutie
particular
te
is correct.
A.
Personally
Q.
Personally.
A.
I believe
pleted
'0.3020
urine,
cases
at the R.C.M.P.
using
the RFLP
lab have
technique
or as a section?
the number
approximately
is 33 or 34.
28 of those.
And
I have
10
Queen's
Bench
in Manitoba,
A.
That is correct.
Q.
You are also,
as a Defence
Specialist
is that
I see from your
Consultant
correct?
C.V.,
you hav
as a Molecular
in the Court
of Queen's
Gene
Bench
in
15
Alberta?
I
A.
That
Q.
Would
is correct.
you explain
do you mean
20
A.
The
first
30
,4,88,
by that?
consultancy
It was
a case
formed
a test,
occurred
involving
over
the tel
an individual
a DNA test
chain
reaction
Q.
This is the PCR test?
A.
That is the PCR test.
Q.
As
A.
That
in this
case
on a sexual
who
invo
assau
opposed to the RFLP test.
is correct.
I was
and asked
to testify
the trial
--
Q.
By whom?
A.
By the defence.
prior
48-3025
Consultant.
.
polymerase
25
Defence
that?
consulted
over
at the trial.
I went
to the prosecution
out
the
I went
for the trial
witness
testifying
He said considerably
less than what
he was
i
10
to say.
Q.
Are you at this point
in a position
work
A.
with
the R.C.M.P.
to do PCR testing
labor
for forensic
yet?
Weare
It is
not in a position to do that.
15
an area
that
is under-researched
hopeful
that within
implementing
Q.
20
the next
PCR base
few years
we wil
technology.
I see from your C.V.
you have
number
proceedings
of conference
and we are
participated
and/or
i
prepa
of abstracts for meetings, is that correct?
A.
That
Q.
I see one of these
is correct.
being
the
"RFLP Analysis
Single Human Hairs" at the 35th Annual Meetin
the Canadian Society of Forensic Science in
25
Ontario.
A.
That
Q.
Again,
were
30
is correct.
Doctor,
involved
Restriction
and Practical
I'll ask you to speak
in an abstract,
Fragment
Considerations
Implementation",
45-3025
,4"51
Length
up.
"Forensic
Polymorphism:
for Design
in the proceedings
You
Analy
The
and
of the DN
10
correct?
A.
That
Q.
Of "Allele
Frequency
and Native
Indian
is correct.
of the
15
A.
Yes.
Q.
Again,
"American
Populations",
Journal
you participated
scientists,
Waye,
including
in an abstract
Fragment
20
Distributions
Approach:
Canadian
Length
Doctor
Variations
and Native
at Adelaide,
A.
That
Q.
Again,
you participated
Doctor
Waye,
25
the
45.302514
"51
Using
of R
A Fixed
Frequencies
Indian
Populati
Association
Australia,
with
other
for F
is that cor
presented
correct?
That is correct.
Fourney
in an a
Assessment
in Forensic
at the 12th
Sciences
Doctor
scientists,
and Specific
DNA Concentration
for Forensic
A.
among
"Sensitive
again
that
and Doc
is correct.
Genomic
30
of oth
Analysis
in Allele
for the 12th International
Sciences
Fourney
"Forensic
m
Genetics"?
a number
Polyrnorphisms
Caucasian
the annual
of Human
with
for Cauca
of Hu
Specim
International
in Adelaide,
As
Australia,
10
scientists in an abstract the "Statistical
parisons
of Six VNTR
Aboriginal
Loci
Populations"
in Three
Co
Canadian
at the 8th Internation
Congress of Human Genetics in Washington, D.C
15
A.
That is correct.
Q.
You have
also been an invited lecturer in "DN
Forensic
Science",
the Canadian
the 12th Annual
Identification
Society
Conference
in Edmonto
Alberta?
A.
Yes.
Q.
And an invited lecturer on "Case
20
Experience
a
R.C.M.P. Laboratories" at the DNA Mini-sympos
the 37th Annual Meeting of the Canadian Socie
Forensic Science in Ottawa?
25
A.
Yes.
Q.
You have
workshops
typing,
30
attended
and I take
particularly
A.
That is correct.
Q.
One of them
the
<4.'851
is the
35th Annual
of Forensic
45.3025
a number
it that those
the RFLP
"Workshop
Meeting
Science
of conferences
and
deal with
technique?
on DNA Polymorphi
of the Canadian
in Toronto?
Socie
Cincinnati,
A.
Yes.
Q.
And
Ohio?
a "DNA Symposium", the 38th Annual Meetin
the Canadian
Society
of Forensic
Science
in M
Quebec?
15
A.
Yes.
Q.
What
A.
Biochemistry.
Q.
What
general
field
relation
of science
would
do you belong,
biochemistry
have
to DNA
the study
of all
DNA typing?
20 I
A.
Biochemistry
of life.
critical
DNA
251
just happens
molecules
is intensely
Q.
is essentially
of life
studied
Ar~ you the scientist
work
for the Queen
A.
Yes,
I did.
Q.
And you used
to be one of the m
and thus
it is one
by biochemists.
who
Versus
actually
Allan
the RFLP procedure
performed
Joseph
Legere
in this parti
case?
30
I
A.
Yes,
Q.
Of the cases
I did.
you have
for case work,
'5.3025
".'B5}
accepted
and I realize
yourself,
there's
pers
others
a
described
The charts
previously.
and 158(9)
describing
essentially
the gels,
the DNA typing
extracting
doing
I believe
the DNA,
the Southern
that membrane
with
various
also
interpreting
technolog
digesting
blotting,
it,
and hy
The
probes.
1
analy
15
includes
found within
the autorads
mental
of statistics
rules
one can determine
any matches
20 I
that
and applying
very
and population
a statistical
a
gen
significance
found.
Q.
And you do that using
A.
The
fundamental
Weinberg
the matches
what
principles
equilibrium
used
are the Hardy
and the Product
Q.
And you use the binning
A.
The entire
method
principles?
method
is based
Rule.
as well?
on the
fixed bin m
yes.
251
Q.
Are these mathematical calculations
fundamental
30
I
Yes.
Q.
In any of the cases
with respect to
A.
45-302514.'851
Yes,
you have
testified
in in
DNA evidence did you testify
as to whether
I did.
are th
principles?
A.
evidence
-
certain
matches
existe
Doctor
Bowen
be declared
biochemistry
an expert
and the forensic
in the field
application
of DN
typing.
THE COURT:
Any questions
MR. FURLOTTE:
I have
at this point?
no questions.
15
THE COURT:
I would
in the field
application
MR. WALSH:
25
Doctor
Bowen
of biochemistry
an expert
th
and the forensic
of DNA typing.
Thank
you were
20
declare
you My Lord.
going
through
You have
your
indicated
qualifications,
described
the fact that you generally
procedure
that's
testified
to by Doctor
set out in those
Waye,
~h
you
follow
schematics
is that
th
an
correct?
A.
That
Q.
Apart
from the technique
for generating
rads,
actually
an autorad
is correct.
you describe
producing
what
is involved
the aut
to look at,
in the interpretat
of the autorad?
A.
.30
As Doctor Waye first described, the interpreta
first
involves
if there
'5.3025 ".'.51
visually
are any matches
scanning
apparent.
the autorad
t
10
through
the referencing
the markers
or the r
at each end of the "gel - it assigns
a size t
of the bands
that one has matched.
Now,
uses
window
a match
matched
15
bands
fall within
match
is confirmed.
match
one then
the
frequency
pattern
this match
window
to confirming
to the data base
one would
using
If the visually
Subsequent
goes
in a given
determinea
of 5.2%.
expect
to deter
to see this p
population.
the
the
The
frequency
fixed bin method
where
20
fragment
sizes
are binned
fragment
sizes
and by determining
each
of the bins
can determine
equation,
25
Once
for each
through
2PQ, the
retests
entire
30
Q.
A.
45-3025
,4.-B5,
process
frequen
matche
equ
of a two band
for a particular
one then
with
strips
another
p
loc
the membran
probe
and
is repeated.
And
if you have
another
the
frequencies
for that particular
That
the
the Hardy-Weinberg
done
the membrane
to a ran
of the bands
frequency
this has been
region of interest
according
is correct.
match
you would
dete
probe
as
talking
about
on the number
the frequency
of probes
for each
in which
probe
there's
d
a m
been called you would multiply the frequenci
gether
using
the product
rule?
.
A.
That
Q.
Is that
A.
Yes,
Q.
You indicated that at the R.C.M.P. lab you
is correct.
15
an accepted
method?
it is.
need a visual match, your eyes have to say
match, and the computer must put them within
20
5.2% match window.
A.
That is correct.
Q.
If, for example, Doctor, at the R.C.M.P. la
That is correct.
had a visual match but for some reason your
said that
25
it was
outside
the 5.2% window
wha
you do?
A.
We would
bin
call that
frequencies
calculations
30
Q.
This
inconclusive
and not use
or that particular
match
in
forensic
la
of the frequency.
is an added
feature
to the
is an added
conservative
it?
A.
45.3025
,4,851
This
feature,
yes.
'0 I
that
sample?
A.
That
is correct.
Q.
So they both must match
match
,S!
That
Q.
Have you been
Yes,
was
involved
reached
in any groups
in which
as to how an autorad
in the fashion
that was part
on statistical
20
t
is correct.
interpreted
A.
and within
window?
A.
ment
visually
you have
of the function
methods
is to b
said?
of the work
in DNA analysis.
I
Q.
And there
was
interpreting
A.
Yes.
Q.
What,
if any,
interpretation
A.
Agreement
was
conclusions.
come
patterns
that
,4. "5!
it in that
fashion?
agreement
did you
on that matter
reach
as to t
of an autorad?
reached
That
that
first
do not match.
there's
could
not
is an exclusion,
th
The
it is an inclusion,
it falls within
essentially
the sample
from the same person
is that
45.3025
reached
possible conclusions that can .be drawn from t
25
30
agreement
second
that
your match
possible
the bands
window
thus
r
ma
y
exclude
A.
the person?
If there
is any reason
to exclude
then
the sam
would be excluded and the --
15
.
Q.
A.
But if it's only
If it's -found
inconclusive?
Inconclusive
in that particular
having
requires
lane
corne from the same
that
anyth
is consistent
wi
If there's
source.
thing that's inconsistent with having cornefr
the same source then it would be called an ex
20
Q.
How many
separate
in this
case using
how many
of these
particular
30 I
<4'-85/
gels
I ran four analytical
Q.
Did you make
test?
did you pr
What
I am sayin
did you actually
run i
gels.
any matches
case
A.
Yes,
Q.
Did you assign
in relation
from any of those
to this
gels?
I did.
a statistical
significance
to
matches?
A.
Yes,
I did.
Q.
What
data
base
significance?
45-3025
your
A.
those
or membranes
case?
particular
251
gels
did you use to assign
the
stat
10
A.
The
samples
Cross
were
obtained
and the Vancouver
partially
samples
through
th
in particular
obtained through the Pathology Department of t
University of British Columbia.
Q.
15
How does the method of calculation that you us
attach the statistical significance to the mat
that you called
described
Weinberg
20
in this case
by Doctor
equation
A.
It is identical
Q.
You testified
an expert,
Waye,
compare
that
is binning,
and the Product
you testified
during
that
Har
Rule?
to the way described
previously
to the me
by Doctor
your being
you have
dec
run tes
various kinds of substances and you mentioned
hair and blood, liquid blood, dried blood, a'n
of those particular things.
25
What kind of extr
methods would you use to obtain DNA from these
materials, for example hair root, blood, semen
A.
There
used
30
are certain
to extract
Blood
stains,
method.
method
40,3025
[4 85,
again
DNA
hair
Liquid
differences
in the technology
from these
roots,
blood
and then
particular
are extracted
mate
by the
is extracted
by a differ
swabs,
stains,
semen
are
semen.
It is an attempt to enrich it, as I sa
specifically it is an attempt because not ofte
it totally successful, but it takes advantage
Va
the various differences in the cell types.
epithelial
cells
are very
easily
broken.
They
15'
be broken
taking
mild
advantage
conditions,
cells
that
open under
which
very mild
of that one treats
breaks
releases
open
the DNA
can be removed
B
conditions.
the sample
the vaginal
from these
from the sample.
epith
cells,
Under
h
20
conditions
the sperm
cells
are then
broken
ope
the DNA is released from them, and one can th
achieve some sort of separation of DNA from t
female fraction and DNA from the male fractio
25
THE COURT:
I wonder
would
that be a convenient
plac
stop?
MR. WALSH:
30
45.302514.851
I have
a couple
would
be a logical
would
permit
me.
That's
quite
THE COURT:
more
place
questions
and then
to stop My Lord,
all right.
if
10
separation.
female
One will
fraction
often
get carry-over
into the male
actually
gone
away
fraction
and male
of this particular
from using
fraction,
case
fraction
thus we
the term
female
but
that's
of
for the purpos
how
I designate
15
those
Q.
samples.
And how would an incomplete separation
would
that have
in terms
-
what
of how you interprete
autorad?
A.
20
If it's an incomplete
separation
a mixed
for example,
pattern.
four bands
given
Q.
than the expected
end
two bands
individual.
And do you have
account
A.
4S.302S ,4..8S,
rather
could
up
a way
of determining
that,
th
that it's an incomplete separation and.that's
25
30
One,
one ends
for the
Yes.
There
first
female
four bands?
is a way
of comparing
fraction
what
and in the mixed
comparing
the victim's
type
suspect's
type
to that particular
out where
each
of the alleles
is in
sample
to the sample
come
sample
from.
plu
to s
10
quite
hot enough
when
from the previous
you're
hybridization
samples
of DNA there's
to it.
If the probe
sometimes
more
removing
more
or for certai
DNA, more
is bound
difficult
the pr
really
probe
tightly
to remove
some part
we term more
sensitiv~
15
probes
which
are what
one can visualize
some small
amounts
of thes
particular bands on a subsequent probing.
Q.
You mean
actually
A.
No, this
is subsequent
reprobing
with
probing
the
with
same pr
another
20
one can see some of the bands
previous
Q.
A.
25
you account
to account
One can simply
problem
so one keeps
30
again
match
track
the probe
and thus
the extra
45.302514"851
determine
that
up with
that.
a
stripping?
it is a strippi
to sa
the previous
of the order
hyb
of the probi
Further
and reprobe
alleviate
bands.
Is there
the two autorads
one can determine
can strip
for that?
for incomplete
by overlaying
yes the bands
then
from
probe.
How would
you use
remaining
to tha
with
the sam
the problem
and rem
will
see you in the morning
at 9: 30, please.
(Jury excused.)
THE COURT:
We will
recess
now.
(ADJOURNED 4:40 P.M. TO OCTOBER 17, 1991 @ 9:30 A.
15
20
25
30
'5.3025,4..e5,