United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE
the Court are three motions to suppress filed by Defendant.
The Court held a hearing on February 21, 2019. After
consideration of the briefs, along with the information
provided during the hearing, the Court recommends as follows.
initial suppression motions, doc. 15 and doc. 16, were wholly
without foundation. See, e.g., Doc. 35 (ordering
defendant to provide factual support or risk the denial of
his motions). As a result, those motions should be
DENIED. After prompting from this Court,
Defendant filed a Motion to Suppress DNA Report that provided
suitable factual support for this Court to address. Doc. 36.
In that motion, defendant argues that the gun, which forms
the foundation of this firearm possession case, was handled
by the police using a t-shirt belonging to defendant. Doc. 36
at 1. Defendant argues that using this t-shirt cross-
contaminated the firearm and that the DNA evidence found on
the firearm is prejudicial and should be suppressed under
Fed.R.Evid. 702 and the Sixth Amendment. At the hearing,
defendant's attorney jettisoned any Sixth Amendment
argument in favor of arguing that the DNA evidence should not
be presented for two reasons. First, it is improper expert
testimony under Fed.R.Evid. 702 and Daubert v. Merrell
Dow Pharm., 509 U.S. 579 (1993). Second, the
evidence is more prejudicial than probative and should be
excluded under Fed.R.Evid. 403.
initial matter, this motion is more aptly compared with a
motion in limine than a suppression motion. Suppression
motions seek to prevent the use of illegally obtained
evidence, see, e.g., James v. Illinois, 493 U.S.
307, 311 (1990) (“The occasional suppression of
illegally obtained yet probative evidence has long been
considered a necessary cost of preserving overriding
constitutional values.”), while motions in limine seek
to address the admissibility of certain evidence before the
Court, see, e.g., MacMillan v. Roddenberry, 432
Fed.Appx. 890, 893-94 (11th Cir. 2011)
(“Macmillan's motion in limine sought to bar the
admissibility of his prior arrests . . .”). Defendant
did not-either in his motion or in court-argue that the DNA
evidence was unlawfully obtained.
to the arguments defendant did make, it is clear that there
is not enough to justify excluding the evidence at this time.
In Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), the U.S. Supreme Court
interpreted Rule 702 stating that the rule “compels the
district courts to perform the critical
‘gatekeeping' function concerning the admissibility
of expert scientific evidence.” United States v.
Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)
(citing Daubert, 509 U.S. at 589 n.7, 597). The U.S.
Supreme Court later held that “Daubert's
general holding-setting forth the trial judge's general
‘gatekeeping' obligation- applies not only to
testimony based on ‘scientific' knowledge, but also
to testimony based on ‘technical' and ‘other
specialized' knowledge.” Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141 (1999) (citing
Fed. R. Evid. 702). Having incorporated these decisions,
amended Rule 702 provides as follows:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
circuit, the Court applies a three-pronged inquiry to
determine whether an expert's testimony complies with
Rule 702 and Daubert. The Court must determine
(1) the expert is qualified to testify competently regarding
the matters he intends to address; (2) the methodology by
which the expert reaches his conclusions is sufficiently
reliable as determined by the sort of inquiry mandated in
Daubert; and (3) the testimony assists the trier of fact,
through the application of scientific, technical, or
specialized expertise, to understand the evidence or to
determine a fact in issue.
Frazier, 387 F.3d at 1260 (citations omitted). The
proponent of the expert opinion bears the burden of
establishing qualification, reliability, and helpfulness by a
preponderance of the evidence. Daubert, 509 U.S. at
592, n. 10.
first prong, “experts may be qualified in various ways.
While scientific training or education may provide possible
means to qualify, experience in a field may offer another
path to expert status.” Frazier, 387 F.3d at
1260-61; see also Fed. R. Evid. 702 (a witness may
be qualified as an expert by “knowledge, skill,
experience, training, or education[.]”).
reliability “criterion remains a discrete, independent,
and important requirement for admissibility.”
Frazier, 387 F.3d at 1261. The Supreme Court in
Daubert “set out a list of ‘general
observations' for determining whether expert testimony is
sufficiently reliable to be admitted under Rule 702.”
United States v. Brown, 415 F.3d 1257, 1267 (11th
Cir. 2005) (citation omitted). These factors or observations
inquire into the expert's “theory or
technique” and are: “(1) whether it can be (and
has been) tested; (2) whether it has been subjected to peer
review and publication; (3) what its known or potential rate
of error is, and whether standards controlling its operation
exist; and (4) whether it is generally accepted in the
field.” Id. (citation omitted).
“Sometimes the specific Daubert factors will
aid in determining reliability; sometimes other questions may
be more useful.” Frazier, 387 F.3d at 1262.
“Indeed, the Committee Note to the 2000 Amendments of
Rule 702 expressly says that, ‘[i]f the witness is
relying solely or primarily on experience, then the witness
must explain how that experience leads to the conclusion
reached, why that experience is a sufficient basis for the
opinion, and how that experience is reliably applied to the
facts.' ” Id. at 1261. Lastly, expert
opinion testimony must assist the trier of fact. Id.
“By this requirement, expert testimony is admissible if
it concerns matters that are beyond the understanding of the
average lay person.” Id. (citation omitted).
challenges neither the qualifications of the person who
performed the DNA test nor the result which was reached,
i.e. that defendant's DNA was found on the gun.
Defendant did state that DNA evidence is “ubiquitous,
” but did not argue that an expert's testimony at
trial would be helpful in understanding how that evidence was
procured. Defendant also argues that the individual who
performed the DNA test was unaware of how the gun was
handled, relying on the advisory committee notes to Rule 702
to suggest that the DNA test may be somehow unreliable.
However, the question of how defendant's DNA
came to be on the firearm involved in this case is separate
and apart from the question of whether that DNA was
found on the gun. Since the DNA report addresses the
latter-rather than the former-defendant's argument as to
the test's reliability is unavailing.
defendant relied heavily on the argument that because DNA
evidence is commonly relied upon in criminal cases,
introducing evidence of arguably tainted DNA evidence would
be more prejudicial than probative under Fed.R.Evid. 403.
However, the DNA report itself acknowledges its limits by
stating that “DNA-containing fluids can be potentially
transferred to an object . . . when handling or touching the
object.” Doc. 36-1 at 2. It is clear, therefore, that
there is no attempt at subterfuge on the part of either the
Government or the DNA expert. And defendant does not
articulate why DNA's common presence in criminal trials
makes the jury incapable of weighing the reliability of a
particular DNA test against the possibility for
cross-contamination. He merely asserts that it would. In the
face of such a conclusory argument supported neither by
references to case law or the record, the Court cannot
determine that the DNA evidence is so prejudicial that its
probative value is so outweighed by prejudice that it should
be jettisoned from presentation at trial. Nevertheless, the
Court acknowledges that this case is not yet scheduled for