`GENETIC fingerprinting,'' the DNA-testing technique that crime experts call the most powerful forensics innovation in a century, will get its closest look under the legal microscope beginning today, in the O.J. Simpson murder trial.
What is decided in exhaustive courtroom scrutiny of these tests - and before worldwide television audiences - could change the strategy of criminal prosecution as few earlier developments have in the history of US jurisprudence.
In these hearings, called Kelly-Frye, Judge Lance Ito will begin weighing defense and prosecution arguments on whether the jury can hear the results of these DNA tests. The tests of blood taken from the crime scene and Mr. Simpson's car and home are scientific laboratory attempts to identify the genetic material found in those samples.
Prosecutors say that the blood, already analyzed in different types of DNA tests, implicates Simpson in the June 12, 1994 stabbing deaths of Nicole Brown Simpson and Ronald Goldman. The evidence is crucial because prosecutors have no eyewitnesses.
``The ultimate legal significance of these hearings is whether or not the core of the prosecution's case can be used,'' says Myrna Raeder, chair of the American Bar Association's Committee on Federal Rules of Procedure and Evidence. ``If they can't put Simpson at the crime scene, they will have a much harder time establishing his guilt beyond reasonable doubt.''
Named for the California cases that established the legal principles involved, a Kelly-Frye hearing generally involves three criteria: 1) Is the technique ``generally accepted'' within the relevant scientific community? 2) Were procedures in this case administered and testified to by qualified experts? 3) Were the procedures properly applied?
Most legal analysts say the defense may forgo arguments in front of Judge Ito alone over the first two criteria, opting to save those debates until jurors are present. Instead, for now, the crux of the defense case probably will rest with whether evidence and testing procedures were properly applied.
``This is where defense attorneys will have a field day,'' says Robert Pugsley, a professor of law at Southwestern School of Law, who has been following the trial closely. Holding that a significant potential for contamination of blood samples could have occurred as police investigators mishandled them throughout the extended period of testing, the defense has already served notice that their case will focus on such mishandling.
``All the goofs and gaffes of the police forensic teams and medical pathologists are going to be spotlighted ad infinitum,'' says Mr. Pugsley.
Prosecutors have submitted blood samples to two different types of DNA tests, and this will complicate the hearings to some degree. One procedure - known by the acronym RFLP - has been upheld in state appellate courts while another - known as PCR analysis - has not. Because of this, a greater possibility for establishing precedent and expanding the field of DNA testing exists with possible rulings regarding the PCR-style tests.
``If Ito permits the PCR evidence, other judges across the country may begin allowing it as well,'' says Ms. Raeder. Such a ruling would carry significance because the PCR method can be used with far smaller samples of blood and can be utilized with samples that are older as well as degraded by time. If Simpson is convicted and the case goes into appeal, an eventual ruling by the California State Supreme Court on PCR methodology could establish law for all future cases in the state.
The Kelly-Frye segment of the pretrial proceedings will be a dress rehearsal for later presentations about DNA evidence before the jury.
Both lawyer teams will glean strategy to use later from the way such hearings are received by the judge, news media, and public. (Scheduled convening of the trial with a jury is Jan. 18, but many say formal, opening arguments may not be heard until mid-February.)
The proceedings are expected to be eye-glazingly exhaustive and technical.
``[Defense attorneys] [Robert] Shapiro and [Johnny] Cochran will do everything to convince viewers that such evidence is confusing,'' says Pugsley. ``Prosecutors will attempt to distill their arguments to show that DNA evidence is perfectly clear and intelligible.''
Under Kelly-Frye, the prosecution must show that the statistical and laboratory methods in question are ``generally accepted.'' So the prosecution's method of presenting its case is critical as a precedent. The ``general acceptance'' test has been upheld in one state district court, but rejected in another.