Commonwealth v. Read — Trial ArchiveTeri Kun - Direct/Cross/Redirect/Recross
387 linesCOURT CLERK: You swear to tell the truth, the whole truth, and nothing but the truth, so help you God?
COURT CLERK: All right.
JUDGE CANNONE: Mr. Lally, whenever you're ready.
MR. LALLY: Thank you. Good morning, ma'am.
MR. LALLY: Could you please state your name and spell your last name?
MR. LALLY: And what do you do for work?
MR. LALLY: And what is your job title there?
MR. LALLY: And that UC classification — SRA — what does that mean?
MR. LALLY: And how long have you worked there?
MR. LALLY: And if I could, I'd like to talk a little bit about your educational background, starting with undergraduate. Where did you go and what degree did you receive?
MS. KUN: So I went to Sacramento State — or California State University Sacramento. I received a minor in chemistry and a biological science degree in molecular biology.
MR. LALLY: And following receiving those degrees, where did you go education-wise?
MR. LALLY: And was that prior to you joining the lab there, or what, if any, relationship to that?
MS. KUN: I actually started my job at the lab after my undergraduate degree in 1999, and I started my postgraduate degree I believe in 2009 and finished in 2011, so I was actually already working at the lab at that time.
MR. LALLY: Now, with regard to the forensic program at UC Davis, what, if any, role would you have in the creation of that lab?
MS. KUN: I was actually one of the people who helped establish our forensics program in our lab, and I currently help with all the training, and any future forensic scientists that we employ, I do their training as well.
MR. LALLY: Now, have you been invited to speak at any sort of conferences or things of that nature in regard to your work in forensic science?
MS. KUN: Yes. I've spoken at the California Association of Criminalists, the American Academy of Forensic Sciences, the Northwestern forensic sciences, and Rural Livestock in the western states.
MR. LALLY: Have you been published in this particular area?
MS. KUN: Yes. I've published seven times, most of them in Forensic Science International Genetics.
MR. LALLY: And when it comes to those publications, are you familiar with the process called peer review?
MR. LALLY: And can you explain to the jury sort of what that process entails and how that implicates things that are public?
MS. KUN: So anytime we go to publish, we put out — an article to whatever publication we would like to, and it goes to a peer review process, which that article is sent out to peers in our industry and they review our work to see that it is solid, and if they approve it, then the article does get published.
MR. LALLY: Now, over the course of your years with the lab at UC Davis, how many forensic samples of DNA have you tested?
MR. LALLY: Now if you could describe to the jury the type of work that your lab performs.
MS. KUN: So we have two sides of our lab. We have a service side which provides diagnostic testing, parentage verification testing, and then we have our forensic side. We do animal parentage verification as well. We also do match comparison, which we compare samples to see if they're coming from the same source, and we do species identification.
MR. LALLY: Now what kind of cases do you typically see in the lab?
MS. KUN: We can do anything from homicides to helping people see if remains are their lost pet to provide closure for them.
MR. LALLY: And what are the sort of different types of agencies that you've done work for over the years?
MS. KUN: We've worked for police agencies, Humane agencies, animal control agencies, and even private individuals — anybody who believes they can use our services.
MR. LALLY: And the lab that you work for, UC Davis — is that lab accredited?
MR. LALLY: Answer my next question. As far as the lab accreditation, can you explain to the jury sort of what that process is and what's entailed in accreditation?
MS. KUN: So our lab is accredited by a group called ANAB, and that's the ANSI National Accreditation Board — they accredit labs to ensure that the policies and the procedures that we're following, they set a standard for those and they come and check — are we meeting those standards — and it's also the same standards that most crime labs are associated with.
MR. LALLY: Now, in reference to that — labs that do DNA testing, specifically and only in regard to humans — the accreditation that your lab has versus the accreditation that those types of labs have — what, if any, difference is there between them?
MR. LALLY: Now if you could explain to the jury — what exactly is DNA?
MS. KUN: So DNA is the blueprint of your life. It's what makes your eye color what it is, it makes your hair color, how tall you're going to be, and you get one half of that from your mom and one half from your dad.
MR. LALLY: And where is DNA found?
MS. KUN: So DNA is found in most cells. It's in the nucleus of the cell — you get one copy of DNA per cell. There's also another kind of DNA called mitochondrial DNA, and in a cell that is found in the cytoplasm of a cell, and there'll be thousands of copies of mitochondrial.
MR. LALLY: And if you could explain sort of the difference between mitochondrial DNA versus — what would you classify the other type of DNA?
MS. KUN: So nuclear DNA is again that individual type of DNA — it's the DNA where we could say that that's you or that's a particular animal, and it would be a statistic of, you know, 1 in 3,000 or 1 in 350 million type thing. Mitochondrial DNA actually runs along the maternal line, so if you know, you're a mom and you have a couple kids and a grandma there, they would all share the same maternal type.
MR. LALLY: And how is DNA used in forensic science?
MS. KUN: For what we do in forensic science for animal DNA, we use it for parentage verification, we use it for determining if two samples come from the same source, and we use it for species identification.
MR. LALLY: And is DNA testing just generally accepted in the scientific community?
MR. LALLY: And can you explain for the jury sort of DNA typing — that process, how does that work, what is it sort of specifically that you're doing?
MS. KUN: So the main steps are — when we get a sample, we need to lyse open those cells. That DNA is in the center of the cell, those mitochondria are there, but they're protected by a cell wall, so our first step is to lyse that cell wall and release the DNA. Once that is done, we want to see how much DNA we have, and so we have something called qPCR, or quantitative PCR, that allows us to tell how much of that nuclear DNA is in a sample. From there we would go to a DNA typing. As you can imagine, if you only have one copy of DNA in a cell, it would take a lot of cells to be able to visualize that DNA. So we have to go through a process of making multiple copies. We use something called primers.
MS. KUN: It tells us what parts of the DNA that we're looking for, that can vary from species to species or from test to test of what we're trying to do, and we amplify that in a process called PCR. And that can be — you could think of it like a photocopier — every time it goes through a cycle it makes a copy, so if we start off with one copy we get two, from two we get four, four we get eight, and by the end of this cycling we have millions of copies that actually allow us to be able to visualize that DNA. And then the last step is actually visualizing it.
MS. KUN: The DNA actually has to run through a matrix, it's kind of like a sponge with all the little holes — small pieces of DNA go out first and we can see those first, and the larger pieces of DNA come out last — so it's allowing us to both see the DNA and it separates it by size.
MR. LALLY: And did you do the forensic testing with regard to samples that were submitted to your lab in this case?
MR. LALLY: And as far as those steps that you just described, are those the steps that you followed in regard to this case?
MR. LALLY: And do you have sort of standard procedures for what you do in the lab?
MS. KUN: Yes, we have standard procedures, or SOPs, that we follow for all of our work that we do.
MR. LALLY: So fair to say in this case you followed those same sort of standard procedures and protocols?
MR. LALLY: Now, what efforts have been taken in your lab to preserve the evidence or prevent contamination?
MS. KUN: So what we do to preserve evidence and prevent contamination — one of the things we use is a bleach product, so anytime we're using a surface, be it for sample collection, doing PCR, doing the extraction, we're wiping down everything with this bleach product, doing our work, and then wiping it down again. Samples are stored according to what we have, so dry evidence is stored in a locked cabinet. Wet evidence such as blood is stored in a fridge, tissue is stored in a locked freezer. The fridge is also locked as well. So they're — and they're also kept in their original packaging, and they're sealed and they're only unsealed and used when they're being actually manipulated for sample collection.
MR. LALLY: And what samples did you receive in this case?
MR. LALLY: May I have just a moment?
JUDGE CANNONE: Yes.
MR. LALLY: May I approach the witness?
JUDGE CANNONE: Yes.
MR. LALLY: I'm showing you a series of seven photographs. I just asked you to look at those, okay? And just in general terms, do you recognize what's depicted in those seven photographs?
MR. LALLY: And those photographs — are those photographs that you would have taken as you were unpackaging the samples in this case?
MS. KUN: Yes, and they actually contain a sticker on there that has our case number, the date we received it, and my initials.
MR. LALLY: I'd like to introduce and admit as the next exhibit.
JUDGE CANNONE: Thank you.
MR. LALLY: Thank you. May I return these to the witness, and with the Court's permission, may I publish them to the jury?
JUDGE CANNONE: Yes.
MR. LALLY: Now, placing before you what has been marked — exhibits 74 through 80 — with regard to the first exhibit that you have before you, what's up on the screen — is that what you have before you as exhibit 74?
MR. LALLY: Can you describe to the jury what we're looking at in this particular photograph?
MS. KUN: So this is the evidence that we received. The little sticker on the bottom is the one that we applied at our lab. It includes our case number, the date, and my initials, and we do this to ensure that we can show that this is how the evidence arrived — it arrived in a sealed and packaged manner.
MR. LALLY: And the following exhibit, number 75 — that's essentially the same packaging, is that correct?
MS. KUN: So it's the same packaging, but it's the back of the packaging, because in this instance that actually shows where the evidence was sealed as well, and the date as well.
MR. LALLY: And who, if anyone, or what entity did you receive this — this package from?
MR. LALLY: Yes, you can.
MS. KUN: So the client in this case was the Norfolk County District Attorney's Office, Adam Lally, and — so, but as far as these samples, from whom I received them —
MR. LALLY: Was that the Massachusetts State Police crime lab?
MS. KUN: They were the people I was in contact with about sending them. We consider the client is the one who submitted the sample on our submission form, but the person who physically sent the sample from one lab to the other was the MSPCL. Let me look at their form here. There was — sorry — there was a form that came with it as well. So yes, the Commonwealth of Massachusetts, Department of State Police Forensic Services Division Crime Lab, was the one who submitted the samples to our lab.
MR. LALLY: And are you familiar — did you have any conversations with a forensic scientist at the State Police lab of Massachusetts, [unintelligible]?
MR. LALLY: Is that someone that you have worked with on prior cases in the past?
MR. LALLY: Now direct your attention to the next exhibit before you — and again, what's up on the screen, is that what you have before you?
MR. LALLY: And if you could just describe to the jury what we're looking at in this.
MS. KUN: So that brown packaging you saw before — this is — actually what was inside of that brown packaging. And the next exhibit — this is that same item that was inside, but the back side of the packaging. And that shows the two swabs that were contained inside that packaging. And that was the first swab that we selected for testing.
MR. LALLY: What's contained in those photographs — is that a fair and accurate portrayal of what you [unintelligible] and sort of how you delineated those items, as far as labeling them by your case number?
MR. LALLY: And for the case number, as far as the FCD and the number, sort of how was that determined, or what does that mean?
MS. KUN: So FC always refers to forensic case — — in this case, D is for dog, because they were asking for dog DNA testing. If it was C, it would be for cattle; F would be for feline. But the FC is always the beginning part — the third letter always kind of denotes what species we're looking for.
MR. LALLY: Now, upon receiving those particular items, are you also given any sort of identifier from the outside lab or the external vendor — as far as what label they have for the sample, where the sample came from, from the outside lab?
MS. KUN: We did receive a piece of paper with the submission saying it was taken from a shirt. And if you recall specifically what the item number was, or where it was swabbed on that shirt? No.
MR. LALLY: Do you remember that?
MR. LALLY: Would that also be delineated somewhere within your report and your findings?
MR. LALLY: And I'm sorry — not specifically in your findings, but within the context of your report — with that in the report?
MR. LALLY: You have your report with you, ma'am?
MR. LALLY: With the Court's permission, I would ask that the witness be allowed to refer to her report.
JUDGE CANNONE: Yes, okay, yes.
MR. LALLY: And I'm sorry — what is that — did you want — did you want the case number there? The case number, the item number.
MR. LALLY: Now, with reference to these samples, did the samples arrive as you expected, as far as their packaging and things of that nature?
MS. KUN: Yes, everything was received sealed, and as you saw, that was documented with our photos, and it's also documented in my notes.
MR. LALLY: Did you test all of the samples that were submitted?
MR. LALLY: And what is it that you were asked to test?
MR. LALLY: QPCR — is that quantitative PCR?
MS. KUN: That tells us how much DNA is in a sample, and it is specific for K9. Because the next goal they asked is if we could develop a DNA profile to possibly use for a comparison with a reference sample to be submitted later. If we weren't able to see anything with K9 DNA there, we were asked to do our species tests called meat ID.
MR. LALLY: Now, first — with reference to the sort of nuclear DNA testing that you did — what were the results of that initial test for the K9 qPCR testing?
MR. LALLY: And when you say — just if you could explain to the jury, or expound upon that, as far as what are you looking at and what are you seeing or not seeing that leads you to [unintelligible]?
MS. KUN: So the K9 DNA we're looking for in that is that nuclear DNA — that DNA that's used for an individual — because the idea was, if we see K9 DNA in the quantitative qPCR, then we know we have K9 DNA on that swab and we can try and use that to develop the DNA profile for a later comparison.
MR. LALLY: So for the questions that you were asked — upon not finding any K9 DNA from the PCR testing, the qPCR testing — what, if any, steps were taken for further testing?
MS. KUN: The next test we performed was our meat ID test. It's a general species test — a test for 12 species altogether. They would include dog, cat, bison, cattle, horse, sheep, goat, mouse, rat, pig, and rabbit. I'm pretty sure I got them all, but I can't guarantee.
MR. LALLY: Now — and I'm sorry to jump around here a little bit — but going back to the qPCR testing, can you explain to the jury what type of instruments are you using, and what exactly goes into that process?
MS. KUN: So we're taking the sample and we're using primers that concentrate — that point to a small piece of DNA for canine — and it's supposed to amplify it. And every time it's amplifying, it's actually releasing a color, a fluorescent color that it's measuring. So if there's K9 DNA, this fluorescent color keeps popping up and popping up, and it gives it a measurement in which it will tell us how much of the K9 DNA we have. But in this case, the test did not see any fluorescence for K9 DNA, so it was a negative result.
MR. LALLY: And then, as far as — when you say K9 DNA, is that dog specifically, or what, if anything, else will be included within canine in this qPCR test?
MS. KUN: Other canines will work, or canids will work, like wolves, coyotes. And we are now doing some further testing on foxes, but we have not concluded those tests.
MR. LALLY: Now, as far as the meat ID test that you're talking about — that sort of second — can you explain again to the jury what was involved in that and what are you doing with regard to that?
MS. KUN: So the meat ID test actually targets the mitochondrial DNA, which makes it a little bit better. There's — like I said, there's a thousand mitochondrial copies in a cell versus that one nuclear DNA, so it's a lot more there. It's also a circular piece of DNA, so it's a little bit more hardy — it sticks around. And we have regions of the mitochondria that are specific to each of those species that I listed. And if we — we have — let me see here — we have primers that actually will give us two different peaks. If we get two peaks that are both for pig, we have a pig result. If we get two peaks for dog, we have a dog result. Or the same can go for any of the species that we have. If we only get one peak, then we don't quantify that as being a positive result for that species.
MR. LALLY: And so you would need more than one peak in order to make that sort of opinion or qualification, as far as species go?
MS. KUN: Right, we always have to have the two peaks for the species that we're getting results for.
MR. LALLY: And so with regard to the meat ID testing that you did with these swabs — these two swabs — what, if any, results did you receive, or what, if anything, did you observe upon completion of the test?
MS. KUN: So, for both the swabs, we did see pig. And we also — actually, I did a little bit of a test where we only concentrated on the dog portion of the meat ID. You can think of it as: when we have all 12 species there, there's a lot of competition going on. By just concentrating on the dog meat ID, it eliminates all the competition — it gives us a better chance of getting a result if there is K9 DNA there. And that result was negative. So the only result we got for both those swabs was for the pig.
MR. LALLY: And so, again, just to be clear — as far as the K9 was concerned, it was not even one peak — there was absolutely no K9 DNA. Now, as far as the pig is concerned, what, if anything, could that [unintelligible]?
MS. KUN: You know, I don't know where that could come from — that would be speculation on my part. It's a sensitive test, I can tell you. So, yeah, that would — it would depend on where that shirt had been and what the person had been doing with it.
MR. LALLY: My question, I guess, is — as far as the source, could that be from beyond just an animal? Could it be from some other source, such as food or something like that?
MS. KUN: Yes, it could be from food. We have tested the meat ID test — in fact, that's what it was developed for, was for testing food products — and so we've seen it come from cooked pork, cooked bacon. In terms of the pig, I do remember those were tested specifically.
MR. LALLY: May I have just one moment?
JUDGE CANNONE: Sure.
MR. LALLY: So, Ms. Kun, just lastly — just to be crystal clear — from your testing, in regards to both qPCR and the meat ID testing, there was absolutely no K9 DNA observed on the two samples that were submitted to you from the State Police lab, Massachusetts?
MR. LALLY: Thank you. I have nothing further.
JUDGE CANNONE: All right, Mr. Jackson.
MR. JACKSON: Thank you. Good morning, ma'am.
MR. JACKSON: Just to finish that thought — to start off — there was no canine DNA detected in your testing, correct?
MR. JACKSON: So when you say there was no canine DNA — that's a little bit of an overstatement, correct?
MR. JACKSON: Exactly. Okay, perfect. So the Massachusetts State Police did not send you any actual items of clothing or cuttings or source material, did they?
MR. JACKSON: Matter of fact, the only thing to be tested were the swabs that you received — those two swabs that we saw very nicely photographed?
MR. JACKSON: You'd agree that your analysis of those swabs is only as good as the starting material with which you have to work, correct?
MS. KUN: That would be correct. I only have the swabs to test — that's the only thing I can talk about.
MR. JACKSON: So the integrity of any DNA testing has to start foundationally with the proper recovery techniques for what's being tested — what goes on the swab.
MR. JACKSON: So you're left — I guess the next question would be — you're left to assume that proper techniques were used to swab the source material?
MR. JACKSON: And for forensic scientists, that assumption may not always be valid?
MS. KUN: Well, in cases — cases can vary for us. Sometimes we get the actual source material, sometimes we do get the swabs. It's dependent upon the agency sending it in — it depends on their policies and procedures, which I cannot dictate.
MR. JACKSON: Right. So the — because the — ...if the swab is not collected properly, when the source material is not swabbed properly, then you're left with sort of a garbage in, garbage out analysis, right?
MS. KUN: But I wasn't there to see the swabs being collected, so I have no idea. I couldn't comment on that.
MR. JACKSON: So that answers my next question. You were not present when the swabs were taken, correct?
MR. JACKSON: You couldn't oversee the collection of those swabs?
MR. JACKSON: You didn't take the swabs yourself?
MR. JACKSON: Okay, and you never did receive any of the source material from which those swabs were taken?
MR. JACKSON: You do understand very clearly from your testimony and the UC Davis — University of California Davis lab, and the impressive work that y'all do — you do understand proper protocols for evidence collection, correct?
MR. JACKSON: When you do collection at your lab, for one thing, you keep proper logs, correct?
MR. JACKSON: As a matter of fact, in your report there's a log — a couple of pages of logs — that literally detail down to the minute when somebody touched those swabs, correct?
MR. JACKSON: That's because it's important to maintain those types of logs to avoid contamination, on the one hand, right?
MS. KUN: I don't know if keeping the logs maintains — prevents contamination. That's fair. As a fair correction, the logs would give you an idea of who touched something, when, and if there was some contamination, you might be able to work backward to figure out how that contamination occurred, correct.
MR. JACKSON: That's why the logs are in place, correct?
MR. JACKSON: It maintains a very specific chain of custody, correct?
MS. KUN: Correct. So everybody that touches those swabs, or that item — it's going into an evidence locker or coming out of an evidence locker, or being tested — that's highly regulated, and it's logged, it's documented in my case notes and it's documented on our internal chain of custody. So there's literally multiple documents that — I'm sorry — that memorialize the movement of that, right, as it goes through our lab.
MR. JACKSON: Yes. Right. And your lab — those criteria include the time something was touched?
MR. JACKSON: The place where it was touched?
MS. KUN: We don't document the place. It was taken out of this particular locker and put on this —
MR. JACKSON: Oh yes. The person that manipulated those items?
MR. JACKSON: Okay. You were asked about the processes that your lab undertakes to avoid or reduce contamination, correct? You were asked that by Mr. Lally on direct examination — you answered that, yes. You went through your lab and the accreditation process, the protocols that you employ to make sure that
MR. JACKSON: Yes. But you don't know what any other lab might employ in terms of their reduction of contamination processes?
MR. JACKSON: And you specifically don't know what the Massachusetts crime lab did or didn't do with this subject material before you got the swab, correct? You don't know if they took any steps, as a matter of fact, to reduce contamination of the source material before the swabs were taken?
MR. JACKSON: You would agree that, for instance, if the source material had been tossed on the bottom of an ambulance floor, that could encourage contamination of that source material?
JUDGE CANNONE: Jackson, can you answer that question?
MS. KUN: I don't know, because we haven't tested — did that sort of thing. It's an interesting question. I do agree, but we have not done any validation which would be able to prove that sort of thing.
MR. JACKSON: Well, I guess what I'm asking is — if the item is supposed to be not contaminated, right, it's supposed to be relatively pristine, and it drops on the floor, that might encourage contamination of that particular item that's supposed to be left as pristine as possible, correct?
JUDGE CANNONE: I think you have to move along from that.
MR. JACKSON: If the source material was not packaged properly, could that encourage contamination?
MR. JACKSON: I'm not asking you that. I'm asking you hypothetically — if a source item that's going to be tested is not packaged and handled properly, that could encourage contamination, correct?
MS. KUN: I have not seen that. What I have seen when something's been packaged incorrectly is I've seen the induction of mold growth, which has prevented [unintelligible] or which causes bacteria which eats away at DNA, so it doesn't give me contamination, but it does mean that I don't see DNA there. There might be —
MR. JACKSON: If something is handled inappropriately — for instance, if something is handled sloppily before it's tested — it might reduce the validity of the ultimate test that's undertaken, correct?
MR. LALLY: Objection.
JUDGE CANNONE: I'm going to sustain that.
MR. JACKSON: There are certain proper swabbing techniques involved in the preparation of a swab, correct?
MR. JACKSON: That includes wearing gloves, using clean tools, correct?
MR. JACKSON: It includes proper documentation of the swabbing, correct? The documentation might include the location, or the description of exactly where the item was swabbed, is that right?
MR. JACKSON: That would be helpful in your analysis to know exactly where something was swabbed?
MR. JACKSON: What about any visible markings to show where swabbing was taken — is that normally done?
MS. KUN: It again varies from lab to lab. What we get — I unfortunately can't dictate what every lab does. They all have their own policies and procedures, and we work with labs across the United States and the world.
MR. JACKSON: If you were swabbing something in your lab — which is an accredited lab — would you encourage marking exactly where something was swabbed so it could later be documented?
MS. KUN: When I swab things in my lab, I actually circle on the item. There's a note with the case number, my initials, the date, and also a ruler present in the photo, so if we have to go back —
MR. JACKSON: In the circumstance you just described, if we had to go back and try to replicate exactly where that swab was taken, you could do that?
MR. JACKSON: Okay, and you think that's an obviously important protocol?
MR. JACKSON: So the swabs that are used are sterile swabs, obviously?
MR. JACKSON: In fact, isn't it true that Crown Labs, for purposes of DNA swabbing, discourages the use of swabs with wooden sticks because they can encourage contamination, as opposed to plastic sticks?
MR. JACKSON: The swab is supposed to be moistened, right?
MS. KUN: I do suggest that people moisten with water in order to make a better transfer, and that needs to be distilled water — sterile water.
MR. JACKSON: And you swab over an area of interest, and then generally you would photograph the area that's being swabbed, correct?
MR. JACKSON: You would want to air-dry that swab completely before you package it, is that right?
MS. KUN: When I do my collection, I don't need to air-dry my swabs, because their next step is actually the extraction process. So I'm not doing collection and then pausing — I'm doing collection and starting my extraction.
MR. JACKSON: When — as a matter of fact, when you're collecting biomaterial, biological tissue samples — for instance, blood, other bio materials — you would not want to package those in plastic because that would encourage some sort of mold growth, mold and bacteria, yes?
MR. JACKSON: So it's discouraged to put blood, for instance, in plastic containers, correct?
MR. JACKSON: You certainly wouldn't put blood material that you're working with in non-sterile containers, would you?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: Would you put — would you put biological material in non-sterile containers?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow that.
MS. KUN: We don't — everything that we use is sterile. All of our tubes that we would use — once we do a collection, we put it in a tube for the extraction process. Those tubes are autoclaved, and they don't have contamination. They are sterile.
MR. JACKSON: You would use a sterile cup?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: You would maintain a strict chain of custody over that item, to ensure the integrity and the admissibility of that DNA?
MR. JACKSON: And I think we've covered this — you may have answered this already — that your personal protocol is that you actually photograph where everything is being swabbed from, correct?
MR. JACKSON: If there was DNA present on a source item, and it wasn't sampled properly, or swabbed properly, in the right spot, then that DNA would likely not be detected, correct?
MS. KUN: I don't know — you know, I don't know the circumstances or why you would swab things in a specific spot. I know in my lab how we do things.
MR. JACKSON: What I'm asking is — if you have a source material, and there's DNA over here, and it's swabbed over here, you wouldn't expect this swab to detect that DNA.
JUDGE CANNONE: Jackson, I'll let you have it.
MR. JACKSON: What information were you provided about these two particular samples?
MS. KUN: I wasn't really provided any information. I had to work with the person from the crime lab, asking about what they wanted to test, and try to narrow down the testing in terms of species, simply because it helps us make sure that we're directing the testing in the correct way for the question that they're answering. So knowing the species in this case was important. It also made it so that we made sure that the testing was as affordable as possible.
MR. JACKSON: Understood. Would it be important for you to understand the condition of the material that was being swabbed as you engage your analysis? I'm not meaning was it clean, was it dirty, did it have blood on it, did it not have blood on it — things of that nature.
MS. KUN: No. Since we don't get to choose how evidence is given to us — nice and clean with nice and clean DNA would be perfect, but that's not our — perfect world. We get samples from wherever it happens — no, it hardly ever happens. Um, it would be important, however, to know whether or not there were obvious inhibitors on the source item when it was swabbed. Knowing that there's dirt would be helpful, um, or possibly blood, uh, because those can inhibit. But we don't necessarily have to know that ahead of time.
MR. JACKSON: Were you told in this instance that the swabs were taken from a garment that had blood on it?
MR. JACKSON: Is blood an inhibitor?
MR. JACKSON: Is garment dye an inhibitor?
MR. JACKSON: Were you told that there was blood on a dyed garment when you received swabs?
MR. JACKSON: Your report indicates that the swabs — — you did test these two swabs. Quote, "did not indicate the presence of canine nuclear DNA, but did indicate the presence of inhibition," end quote. Correct?
MR. JACKSON: You explained that, quote, "this result is obtained when either: number one, the canine nuclear DNA is degraded." Is that right?
MR. JACKSON: Number two, it's quote, "obscured by inhibition," end quote. Or number three, there is no canine nuclear DNA present. Correct?
MR. JACKSON: So in your report you indicated that there are three reasons that you list for the possibility of not finding or not detecting the canine nuclear DNA in that sample. Correct?
MR. JACKSON: All right. Two of those — — three reasons allow for the idea that the DNA is actually present, but it's either obscured by inhibitors or it's so degraded that it can't be detected — the nuclear DNA. Right? But it still could exist?
MS. KUN: It could, yes. It's just — you can't see it if it's obscured, and you can't see it if it's degraded. Correct.
MR. JACKSON: Explain how an inhibitor works in your testing.
MS. KUN: Excuse me. An inhibitor just actually stops the PCR process from happening, and so therefore you would see no results.
MR. JACKSON: So did you find inhibitors in this sample — in the nuclear DNA testing?
MR. JACKSON: And was that the quantitative polymerase chain reaction test — qPCR?
MR. JACKSON: And in fact an inhibitor is pretty much any chemical that's literally going to inhibit the enzyme from helping make the copies?
MR. JACKSON: Certain dyes inhibit?
MR. JACKSON: And certainly blood inhibits — from blood?
MR. JACKSON: And because of that, at least in that sample — the nuclear DNA sample — you're not saying that there was no canine DNA there; you're saying that the testing did not detect it in the qPCR nuclear test. Correct?
MR. JACKSON: And you've heard — obviously there's a famous quote in science that the absence of evidence is not evidence of absence. Right?
MR. JACKSON: Can you describe for the jury what that phrase means — that just because you don't —
JUDGE CANNONE: Sustained.
MR. JACKSON: — find something doesn't mean it's not there.
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: You were able to detect the presence of pig DNA. Right?
MR. JACKSON: And I think you said on direct examination that that could come from a number of sources, including food sources. Right?
MR. JACKSON: Could come from dog treats?
MR. JACKSON: Dog treats.
MR. JACKSON: Could come from dog treats — in fact, dog treats that are pig ears literally —
JUDGE CANNONE: Allow it.
MR. JACKSON: Right?
MR. JACKSON: Or it could be that the shirt that was the source of material was contaminated, not properly preserved?
MR. JACKSON: You're not aware of any feral pig populations in Massachusetts, are you?
MR. JACKSON: Dog saliva would obviously be a good and rich source of DNA. Correct?
MS. KUN: It depends on the context. We have cases — I can refer to two cases that we did recently where there were small bites and we were able to get nuclear DNA from those sources because it was probably saliva. Yes, right.
MR. JACKSON: So saliva contains active, living, growing cells that slough off in the salivating process. Right?
MR. JACKSON: That's why often times for 23andMe or other companies they want you to swab the inside of your cheek. Right? DNA, right?
MR. JACKSON: So that's a relatively reliable source of DNA. Would you agree?
MR. JACKSON: Dog claws — the claws would not be a good source of DNA, would they?
MR. JACKSON: And the reason for that is because the claws are like human fingernails — they're made of keratin. Correct?
MR. JACKSON: Keratin is dead, hardened cells — not a good source for DNA?
MS. KUN: Not in terms of scratching. We can do something where we pulverize them and we can get DNA from them — then you have to have the claw, generally.
MR. JACKSON: Yes. We have to have the claw material. I spoke over a little bit, but I want to make sure we're clear about that — you're talking about: you can possibly get DNA in a mitochondrial test if you have the claw and pulverize the claw. Correct?
MS. KUN: Possible to find some DNA. But in terms of touch DNA — it's difficult to find it from a claw. I really can't speak about touch DNA because it's not something we've tested or validated in our lab.
MR. JACKSON: So you didn't have any claws that you tested here?
MR. JACKSON: Matter of fact, you were just testing swabs from a shirt. Correct?
MR. JACKSON: And you've already agreed that keratin is not a good DNA source because it's dead cells. Would you agree that one of the reasons it was difficult to detect canine DNA in this case is because it was potentially degraded?
JUDGE CANNONE: Ask the question differently.
MR. JACKSON: Sure. In your report you indicated that there were two obvious possibilities of not detecting the DNA — one was obscuring by inhibitors, and one was degradation — the DNA would be too degraded.
MR. JACKSON: So to be clear — in your conclusion, you're not testifying today that there was no dog DNA on that source shirt that was swabbed; you're saying that the two swabs that you got did not detect the DNA. Correct?
MS. KUN: In our meat ID test we also have a test for an inhibitor — it's also called an IPC, the same internal positive control — and that's what did not work in the nuclear testing. It did work and — — it worked very well in the test on the meat ID. So there wasn't any inhibition that we were seeing on the meat ID test. But that's the ID test that you found, right? But it also was testing for dog at the same time. But when you tested for dog for nuclear DNA, that test was either inhibited or so degraded that you couldn't tell — for the nuclear test. Yes.
MR. JACKSON: Thanks, that's all I have.
MR. LALLY: On that last point — it pertains to the nuclear DNA testing — was either inhibited, degraded, or wasn't there. Is that correct?
MR. LALLY: Now, as far as samples in your line of work — are you typically going outside of the lab or going out to a scene, collecting samples in that regard?
MR. LALLY: So when you're collecting from a sample it's done in the lab setting. Is that correct?
MS. KUN: And if we get the item, we're collecting it. But we have times — in this case — where the samples are sampled at the other crime lab and then we just get those samples. So it happens both ways.
MR. LALLY: Now, if you recall — what, if any, conversation did you have with Miss Hartnett or anybody from the Massachusetts State lab in regard to the swabbing or the collection process?
MR. JACKSON: Objection.
JUDGE CANNONE: I'm going to allow it.
MS. KUN: I gave her our basic swabbing practice. Even though they are a crime lab, I would assume that they would know what they were doing — which would be to swab with the sterile swab using sterile water, allowing the swab to dry completely, and then packaging in paper and storing at room temperature before sending it to us.
MR. LALLY: And when you received it — and those seven photographs before you — was the packaging that you received appropriate? Was that what you expected?
MR. LALLY: Now, you described on direct, as far as the mitochondrial DNA testing in the meat ID, as being a hardier DNA. Is that correct?
MS. KUN: Yes. The mitochondrial DNA is a hardier DNA — there's a lot more of it. When we're testing for nuclear DNA, like I explained before, there's only one copy of DNA in a cell, whereas for the mitochondrial, in a cell there's thousands. So you can have a lot more there. It makes for a better test, at least in terms of species — it's just a more sensitive test.
MR. LALLY: And there were no inhibitors or anything like that in the mitochondrial — the meat ID testing that you did?
MR. LALLY: May I approach to retrieve the exhibit?
JUDGE CANNONE: Yes. Did you have anything further, Mr. Jackson?
MR. JACKSON: Very briefly.
JUDGE CANNONE: Okay.
MR. JACKSON: You indicated that you gave Miss Hartnett certain protocols to follow in terms of her swabbing and recovery. Is that right?
MR. JACKSON: Are you aware that Miss Hartnett had also failed certain proficiency —
JUDGE CANNONE: I am going to strike that. The objection is sustained.
MR. JACKSON: Thank you. Nothing.
JUDGE CANNONE: All right, you are all set. Thank you very much. Could I see counsel just briefly, please? All right, Mr. Lally, your next witness. And Mr. Jackson — and
PARENTHETICAL: [counsel]
JUDGE CANNONE: — you're prepared to go forward, with Miss Little's absence, with Mr. Nagel?
MR. JACKSON: Yes.
JUDGE CANNONE: Okay.