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New York Court of Appeals: Frye Hearing Required to Determine Admissibility of DNA Evidence Generated by Proprietary Forensic Statistical Tool

by Douglas Ankney

The Court of Appeals of New York reversed an order of the Appellate Division that had affirmed a trial court’s order denying a hearing requested pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and the Court remitted to the trial court to hold a Frye hearing.

Tyrone Wortham was staying at the apartment of the mother of his children when police executed a search warrant at that location. Officers recovered weapons, drugs, and drug paraphernalia from a back bedroom. Wortham and a codefendant were indicted on numerous charges related to the drugs and weapons.

Wortham moved pretrial to preclude expert testimony regarding the probability that he was a contributor to a multiple-source DNA sample taken from the drugs and weapons. The expert testimony was in relation to a statistic derived from a forensic statistical tool (“FST”) developed by the New York City Office of Chief Medical Examiner (“OCME”). In the alternative, Wortham moved for a Frye hearing to determine the admissibility of the evidence. The trial court denied the motion in its entirety. At the subsequent trial, the statistical DNA evidence derived from use of the FST was the strongest evidence tying Wortham to the drugs. The People offered no other evidence that directly linked him to the contraband.

Wortham was adjudged guilty and appealed. The Appellate Division concluded the motion for a Frye hearing had been properly denied. The Court granted Wortham further review.

The Court observed that People v. Williams, 147 N.E.3d 1131 (N.Y. 2020), and People v. Foster-Bey, 147 N.E.3d 1129 (N.Y. 2020), are controlling precedents. In Williams and Foster-Bey, the Court of Appeals held that the trial courts abused their discretion as a matter of law in admitting the results of DNA analysis conducted using the FST without first holding a Frye hearing.

In Williams, the defendant argued that “the FST was a proprietary program developed and used only by the OCME and had not been subjected to independent outside validation.” In opposition, the People argued that “the FST was based on generally accepted mathematical formulas and had been approved by the DNA Subcommittee of the New York State Commission on Forensic Science.”

The Williams Court determined that the “FST is a proprietary program exclusively developed and controlled by OCME,” which had not been subjected to independent outside validation. Further, approval of the DNA Subcommittee is “no substitute for the scrutiny of the relevant scientific community” and Williams had “adequately show[n] that OCME’s secretive approach to the FST was inconsistent with quality assurance standards within the relevant scientific community [and the FST] should be supported by those with no professional interest in its acceptance.” Id. 

The Court concluded in the instant case that the trial court erred in denying the requested Frye hearing. Because the evidence derived from the FST was the People’s strongest evidence connecting Wortham to the drugs and weapons, “there was a significant probability that the admission of that evidence contributed to the verdict.” Williams. Consequently, the error was not harmless. See id.

Concluding that the trial court had erred, the Court fashioned an appropriate remedy—stating that “[t]his Court and the intermediate appellate courts are authorized to ‘take or direct such corrective action as is necessary and appropriate both to rectify any injustice to the appellant … and to protect the rights of the respondent.’” CPL 470.20; see CPL 470.40(1). The Court instructed the trial court that if it determines, after a Frye hearing, that the DNA evidence derived from the FST is not admissible, then Wortham is entitled to a new trial. On the other hand, if the trial court determines the evidence is admissible, Wortham may challenge that determination of direct appeal.

Accordingly, the Court reversed the order of the Appellate Division and remitted to the trial court for a Frye hearing. See: People v. Wortham, 180 N.E.3d 516 (N.Y. 2021). 

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Related legal case

People v. Wortham



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