Commonwealth v. Read — Trial ArchiveTeri Kun — Direct/Cross/Redirect/Recross
494 lines(Whereupon, there was a sidebar conference as follows:)
JUDGE CANNONE: So I know sometimes I do tell jurors that the witness is out of order. Is there any reason to fear or anything?
MR. LALLY: I think I would prefer it just because I think I would --
JUDGE CANNONE: Is there an objection to it?
MR. YANNETTI: No.
JUDGE CANNONE: And then I can just say sometimes schedules make it such that we have to have witnesses testify out of order. All right. Thank you.
MR. LALLY: Thank you, Your Honor.
(Whereupon, the sidebar conference concluded.)
JUDGE CANNONE: So, jurors, before this next witness testifies, I just want to tell you that sometimes we call witnesses out of order. Sometimes witnesses have to be called at a certain time frame because of their schedules or some other instance, and the lawyers were kind enough to work this out among themselves. We appreciate it.
Whereupon, TERI KUN having been first duly sworn, was examined and testified as follows:
JUDGE CANNONE: Mr. Lally, whenever you are ready.
MR. LALLY: Thank you, Your Honor.
DIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: Good morning, ma'am.
MR. LALLY: Could you please state your name and spell your last name for the jury?
MR. LALLY: And, Ms. Kun, what do you do for work?
MR. LALLY: And what is your job title there?
MR. LALLY: And that UC classification as far as SRA-4, 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, if any, degree did you receive there?
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 educationally from there?
MR. LALLY: And was that prior to you joining the lab there or what, if any, relationship did that have?
MS. KUN: I actually started my job at the lab after my undergraduate degree in 1999, and I started my post- graduate 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 did you have in sort of 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 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: Now, 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 a 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 published?
MS. KUN: So anytime we go to publish, we put out an article to whatever publication we would like to, and it goes through a peer review process, which the 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 for 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, parent verification testing. And then we have our forensics side. We do animal parent verification, as well. We also do match comparison, which we compare samples to see if they are coming from the same source. And we do species identification.
MR. LALLY: Now, what kind of cases do you typically see like 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 are there sort of different types of agencies that you've done work for over the years of your work with the lab?
MS. KUN: We 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: I'm sorry. Here is 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 ANAB. And that's the American National Standards Institute national accreditation. They accredit labs to ensure that the policies and procedures that we are following, they set a standard for those. And they come and check our standards; 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 lives have, what, if any, differences are there between those?
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 is also another kind of DNA called mitochondrial DNA. And in a cell, that is found in the plasma of the cell. And there will 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 as?
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, one in 3,000 -- or one in 350 million. Mitochondrial DNA actually runs along the maternal line. So if, you know, you're a mom and you have a couple kids and your 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'd use it for parent 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 do?
MS. KUN: So the main steps are when we get a sample, we need to lyse open the cells. That DNA is in the center of the cell. There's mitochondrial 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 that 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 our 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 pointers. 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 are trying to do, and we amplify that in a process called PCR. You can 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. 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 as you just described, are those the steps that you followed in regard to this case?
MR. LALLY: Do you have sort of standard procedures for what you do in the lab?
MR. LALLY: And so fair to say in this case, you followed those same sort of standard procedures and protocols?
MR. LALLY: Now, what, if any, efforts are taken in your lab to preserve the evidence or prevent contamination?
MS. KUN: So what we do to preserve evidence, prevent contamination, one of the things we use is a bleach product. So any time we are using a surface, be it for sample collection, doing PCR or doing the extraction, we are 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. And they are also kept in their original packaging, and they are sealed. And they are 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: Your Honor, may I have just a moment?
JUDGE CANNONE: Yes.
MR. LALLY: Your Honor, may I approach the witness?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Ms. Kun, I'm showing you a series of seven photographs. I'd just ask you to look at those and then look up at me.
MR. LALLY: And just in general terms, do you recognize what's depicted in those seven photographs?
MR. LALLY: Okay. Are those photographs that you would have taken as you were unpackaging the samples in this case?
MS. KUN: Yes. And, actually, they contain a sticker on there that has our case number, the date we received and my initials.
MR. LALLY: May I approach again, Your Honor?
JUDGE CANNONE: Yes.
MR. LALLY: The Commonwealth would seek to introduce them as the next exhibits.
MR. JACKSON: No objection.
(Whereupon, photographs of packaging and items inside were entered and marked Exhibits No. 74 through and including 80 in Evidence.)
COURT REPORTER: Exhibits 74 through 80, Your Honor.
JUDGE CANNONE: Thank you.
MR. LALLY: Thank you. Your Honor, may I return these to the witness and, with the Court's permission, may I publish them to the jury?
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: Ms. Kun, I am now placing before you -- what I've placed before you has now been marked Exhibits 74 through 80. With regard to the first exhibit that you have before you, what is up on the screen, is that what you have before you as Exhibit 74?
MR. LALLY: And can you describe to the jury what we are 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 in our lab. It includes the case number, the date and my initials. And we do this to ensure that this is how the evidence arrived; it arrived in a sealed and packaged container.
MR. LALLY: And the following Exhibit No. 75, that's essentially another photograph of the same packaging; is that correct?
MS. KUN: So it's the same packaging, but it's the back of the packaging, given in this instance that actually shows where the evidence is sealed, as well, and the date, as well.
MR. LALLY: And who, if anyone, or what entity did you receive this package from?
JUDGE CANNONE: Yes.
MR. LALLY: Thank you.
MS. KUN: So the client in this case was the Norfolk County District Attorney's Office, Adam Lally.
BY MR. LALLY:
MR. LALLY: But as far as the samples from whom you received, 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 as the one who submitted the sample on our submission form.
MR. LALLY: Okay. But the person who physically sent the sample from one lab to the other was the MSPCL; is that correct?
MS. KUN: Let me see here. I'm sorry. There was a form that came with it, as well. Let me find it. 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 with or did you have any conversations with a forensic scientist at the state police lab in Massachusetts named Maureen Hartnett?
MR. LALLY: Is that someone that you had worked with on prior cases in the past?
MR. LALLY: Now, if I could direct your attention to the next before you, No. 76. 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 are looking at in this photograph.
MS. KUN: So that brown packaging you saw before, this is actually what was inside of that brown packaging.
MR. LALLY: And the next exhibit?
MR. LALLY: Ms. Gilman, if I could ask you to scroll down a little bit.
BY MR. LALLY:
MR. LALLY: And this photograph?
MR. LALLY: What is contained in those photographs, is that a fair and accurate portrayal of what you received 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 is 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 were 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 are looking for.
MR. LALLY: Now, pursuant to receiving those particular items, are you also given any sort of identifier as far as from the outside lab or the external vendor as far as what label they have for the sample or where the sample came from from the outside lab?
MR. LALLY: Do you recall specifically what the item number was or where it was swabbed on that shirt?
MR. JACKSON: Objection.
JUDGE CANNONE: Do you remember that?
BY MR. LALLY:
MR. LALLY: Would that also be delineated somewhere within your report and your findings?
MR. LALLY: I'm sorry. Not specifically in your findings but within the context of your report, would that --
MR. LALLY: Do you have your report with you, ma'am?
MR. LALLY: Your Honor, with the Court's permission, I would ask that the witness be allowed to refer to her report for that information.
JUDGE CANNONE: Yes.
BY MR. LALLY:
MR. LALLY: And I'm sorry. What is that again?
MR. LALLY: The case number and the item number, if you could.
MR. LALLY: Now, Ms. Kun, 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 arrived sealed and, as you saw, it was documented with our photos, and it's also documented in my notes.
MR. LALLY: Okay. And did you test all of the samples that were submitted, ma'am?
MR. LALLY: And what is it that you were asked to test?
MS. KUN: We were asked to determine species via canine qPCR. qPCR is that quantitative PCR that tells us how much DNA is in a sample, and it is specific for canine 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 canine DNA there, we were asked to do our species test, called meat I.D.
MR. LALLY: Now, first with reference to the sort of nuclear DNA testing that you did, what were the results of this initial testing?
MR. LALLY: And, when you say -- 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 that opinion.
MS. KUN: So the canine 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 can get -- if we see canine DNA in the quantitative qPCR, then we know we have canine DNA on that swab and we can try and use that to develop the DNA profile for a later comparison.
MR. LALLY: Now, per the questions you were asked or what you were asked to test upon not finding any canine DNA from the PCR testing or the qPCR testing, what, if any, steps did you take next or what, if any, further testing was done.
MS. KUN: The next test we performed was our meat I.D. test. It's a general species test. It tests for 12 species altogether. They would include dog, cat, Bison, cow, horse, sheep, goat, mouse, rat, pig and others. I'm pretty sure we got them all but I can't guarantee.
MR. LALLY: Now, -- and I'm sorry to jump around here a little bit. But, when going back to sort of the qPCR testing, can you explain to the jury sort of what is it -- what type of instruments are you using and what exactly goes into that process?
MS. KUN: So we are taking the sample, and we are using primers that concentrate the .2 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 canine 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 canine DNA we have. But, in this case, the test did not see any fluorescence for canine DNA. So it was a negative result.
MR. LALLY: And then as far as when you say canine DNA, is that dog, specifically, or what, if anything else, would be included within canine?
MS. KUN: In this qPCR test, 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 I.D. test that you're talking about, that sort of second, can you explain again to the jury sort of what is involved in that and what are you doing with regard to that?
MS. KUN: So the meat I.D. test actually targets the mitochondrial DNA, which makes it a little bit better. Like I said, there's a thousand mitochondrial in a cell versus that one nuclear DNA. So there'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 pointers 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 goes?
MS. KUN: Right. We always have to have the two peaks for the species that we are giving results for.
MR. LALLY: And so with regard to the meat I.D. 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 did -- I did a little bit of a test where we only concentrated on the dog portion of the meat I.D. 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 I.D., it eliminates all the competition. It gives us a better chance of getting a result if there is canine 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 canine was concerned, there was not even one peak from what you observed?
MR. LALLY: Now, as far as the pig is concerned, what, if anything, could that be from?
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. 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 I.D. 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 pig. But those were tested specifically.
MR. LALLY: Your Honor, may I have just one moment, please?
JUDGE CANNONE: Sure.
BY MR. LALLY:
MR. LALLY: So Ms. Kun, just lastly, just to be crystal clear, from your texting in regard to both the qPCR and the meat I.D. testing, there was absolutely no canine DNA that you observed on the two samples that were submitted to you from the state police lab in Massachusetts?
MR. LALLY: Thank you, ma'am. I have nothing further, Your Honor.
JUDGE CANNONE: All right. Mr. Jackson?
MR. JACKSON: Thank you, Your Honor.
CROSS-EXAMINATION BY MR. JACKSON:
MR. JACKSON: Good morning, Ms. Kun.
MR. JACKSON: Just to finish that thought and to start off, there was no canine DNA detected in your testing, correct?
MR. JACKSON: Okay. So when you say there was no canine DNA, that's a little bit of an overstatement, correct?
MR. JACKSON: Exactly. Perfect. So the Massachusetts State Police did not send you any actual items of clothing or cuttings or source material, did they?
MR. JACKSON: As a 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 was 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 is 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's going 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 test material?
MR. JACKSON: And for a forensic scientist, that assumption may not always be valid?
MS. KUN: Well, cases can vary for us. Sometimes we get the actual source material. Sometimes we 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. Because if the swab is not collected properly or the source material is not swabbed properly, then you're left with sort of 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 can't comment on that.
MR. JACKSON: Exactly. 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: 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, the University of California Davis lab and the impressive work that y'all do, you do understand proper protocols for evidence collection, correct?
MR. JACKSON: 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?
MR. JACKSON: That is 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?
MR. JACKSON: That's why the laws are in place, correct?
MR. JACKSON: It maintains a very, very specific chain of custody?
MR. JACKSON: So everybody that touches those swabs or that item that's going into an evidence locker or coming out of an evidence locker or being tested, that's highly, highly regulated, and it's marked on a log?
MS. KUN: It's documented in my case notes, and it's documented on our internal chain of custody.
MR. JACKSON: So there's literally multiple documents that dictate -- I'm sorry -- that memorialize the movement of that evidence, right?
MR. JACKSON: Right. And those criteria include the time that something was touched?
MR. JACKSON: The place where it was touched?
MR. JACKSON: Meaning it was taken out of this particular locker and put on this particular --
MR. JACKSON: The person that manipulated those items or that item —-
MR. JACKSON: You were asked about the processes that your lab undertakes to avoid or reduce contamination?
MR. JACKSON: You were asked that by Mr. Lally on direct examination. Do you recall that?
MR. JACKSON: You went through what your lab and the accreditation process -- the protocols that you employ to make sure that contamination is reduced hopefully to a minimum?
MR. JACKSON: 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 swabs?
MR. JACKSON: 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?
MR. LALLY: Objection.
JUDGE CANNONE: Can you answer that question?
MS. KUN: I don't know because we haven't tested 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.
BY MR. JACKSON:
MR. JACKSON: Well, I guess what I'm asking is if the item is supposed to be not contaminated --
MR. JACKSON: -- and is 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: Mr. Jackson, I think you have to move on.
BY MR. JACKSON:
MR. JACKSON: If, in fact, the source material had been -- was not packaged properly, could that encourage contamination?
MR. JACKSON: I'm not asking that, Ms. Kun. I'm asking you hypothetically if an item, a source item, is going to be tested and is not packaged and handled properly, that could encourage contamination, correct?
MS. KUN: I have not seen that. What I have seen when something has been packaged incorrectly is I have seen the induction of mold growth, 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.
MR. JACKSON: There might be -- 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.
BY MR. JACKSON:
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?
MR. JACKSON: 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: Again, it varies from lab to lab what we get. I, unfortunately, can't dictate what every other 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 can later be documented?
MS. KUN: When I swab things in my lab, I actually circle on the item. There is a note with the case number, my initials, the date and also a ruler present in the photo.
MR. JACKSON: So if we have to go back, in your circumstance that you just described, if we have to go back and try to replicate exactly where that swab was taken, you could do that?
MR. JACKSON: And you think that's obviously an important protocol?
MR. JACKSON: So the swabs that are used are sterile swabs, obviously?
MS. KUN: In fact, isn't it true that crime labs discourage, for purposes of DNA swabbing, discourage the use of swabs with wooden sticks because they can encourage contamination as opposed to plastic sticks? A I have not heard that.
MR. JACKSON: The swab is supposed to be moistened, right?
MR. JACKSON: And that needs to be distilled water, sterile water, correct?
MR. JACKSON: And you swab over an area of interest. And then, generally, you would photograph the area that is being swabbed, correct?
MR. JACKSON: You would want to air dry that swab completely before --
MR. JACKSON: -- you package it; is that right?
MS. KUN: When I do my collection, I don't need to air dry my swabs because the 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 you -- as a matter of fact, when you're collecting biomaterial, tissue samples, for instance, blood, other biomaterials, you would not want to package those in plastic because that would encourage some sort of mold growth?
MR. JACKSON: So it's discouraged to put any blood, for instance, in plastic containers?
MR. JACKSON: You certainly wouldn't put blood material that you're working with in nonsterile containers, would you?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: Would you put biological material in nonsterile containers?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow that.
MS. KUN: We don't have -- everything that we use is sterile. All of our tubes that we use are -- once we do a collection, we put it in the tube for the extraction process. Those tubes are autoclaved and they don't have contamination. They are sterile.
BY MR. JACKSON:
MR. JACKSON: You wouldn't use a Solo cup?
MR. JACKSON: You wouldn't use a Solo cup?
MR. LALLY: Objection, Your Honor.
JUDGE CANNONE: The objection is sustained.
BY MR. JACKSON:
MR. JACKSON: You would maintain a strict chain of custody over that item to ensure the integrity and the admissibility of that DNA evidence?
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 why -- you know, I don't know the circumstances or why you would swab things, you know, 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 is DNA over here and it's swabbed over here, you wouldn't expect this swab to detect that DNA, correct?
MR. LALLY: Objection, Your Honor. Move to strike.
JUDGE CANNONE: I'll allow it.
BY MR. JACKSON:
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 just try to narrow down the testing in terms of species simply because it helps us make sure that we are directing the testing in the correct way for the answer or for the question that they're answering. So knowing the species in this case was important. It also made it so that we made it so 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 engaged your analysis, "the condition" 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. So...
MR. JACKSON: Hardly ever happens, does it?
MR. JACKSON: It would be important, however, to know whether or not there were obvious inhibitors on the source side of whatever's swabbed?
MS. KUN: Knowing that there is dirt would be helpful or possibly blood because those can inhibit, but not necessarily -- 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: Okay. 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 the swabs?
MR. JACKSON: Your report indicates that the swabs that you did test, these two swabs, quote, "did not indicate the presence of canine nuclear DNA but did indicate the presence of inhibitors," end quote. Correct?
MR. JACKSON: Right. 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?
MR. JACKSON: 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?
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, correct?
MR. JACKSON: Right. But it still could exist?
MR. JACKSON: It is just not -- you can't see it if it's obscured and you can't see it if it's degraded?
MR. JACKSON: Explain how an inhibitor works in your testing.
MS. KUN: 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?
MR. JACKSON: And was that the qualitative polymerase chain reaction test, the qPCR test?
MR. JACKSON: Okay. And, in fact, an inhibitor is pretty much any chemical that is literally going to inhibit the enzyme from helping make the copies?
MR. JACKSON: Certain dyes inhibit?
MR. JACKSON: And certainly blood inhibits?
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?
MR. JACKSON: And you've heard, obviously -- there's sort of a famous quote in science that the absence of evidence is not evidence of absence, right?
MR. JACKSON: Can you describe for the jurors what that phrase means?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: It means just because you don't find something means it's not there?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
BY MR. JACKSON:
MR. JACKSON: You were able to detect the presence of pig DNA, correct?
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: It could come from dog treats?
MR. JACKSON: It could come from dog treats.
MR. JACKSON: As a matter of fact, there's dog treats that are pig ears, literally, right?
MR. LALLY: Objection.
JUDGE CANNONE: I'll allow it
BY MR. JACKSON:
MR. JACKSON: Is that right?
MR. JACKSON: Or it could be that the shirt that was the source material was contaminated and not properly preserved?
MR. JACKSON: You're not aware of any feral pig populations in Massachusetts, are you?
MR. JACKSON: All right. Dog saliva would obviously be a good and a rich source of DNA, correct? You would agree?
MS. KUN: It depends on the context. We have cases where -- I mean, 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.
MR. JACKSON: Because there was probably saliva, right?
MR. JACKSON: So saliva contains active, living, growing cells that slough off in the salivating process, right?
MR. JACKSON: That's why oftentimes for 23andMe or other companies, they want you to swab the inside of your cheek --
MR. JACKSON: -- to get DNA, right?
MR. JACKSON: So that's a relatively rich source of DNA, you would agree?
MR. JACKSON: However, dog claws, the claws, would not be a good source of DNA, would they?
MR. JACKSON: And the reason for that is because the cause are, like human fingernails, they are made of keratin?
MR. JACKSON: Keratin is dead, hardened cells and 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.
MR. JACKSON: But you have to have the claw?
MR. JACKSON: You have to --
MR. JACKSON: I spoke over you a little bit, but I want to make sure we are 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?
MR. JACKSON: It's possible to find some DNA. But, in terms of touch DNA, it's very difficult to find it from a claw because that --
MS. KUN: I really can't speak about touch DNA because it is not something we tested or validated in our lab.
MR. JACKSON: So you didn't have any claws that you tested here?
MR. JACKSON: As a matter of fact, you were just testing swabs from a shirt?
MR. JACKSON: And you've already agreed that keratin is not a good DNA source because it's dead cells, not live cells?
MR. JACKSON: Would you agree that one of the reasons that it's difficult to detect canine DNA, it was difficult to detect canine DNA in this case is because it was potentially degraded, right?
MR. LALLY: Objection.
JUDGE CANNONE: Ask the question differently.
MR. JACKSON: Sure.
BY MR. JACKSON:
MR. JACKSON: In your report, you indicated that there were two obvious possibilities of not detecting the DNA. On was obscuring because of inhibitors and one was degradation, the DNA would be too degraded?
MR. JACKSON: Understood. So to be clear, in your conclusion, you're not saying, 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 I.D. test, we also have a test for an inhibitor. It's also called an IPC. It's the same initials. Internal positive control. And that's what did not work in the nuclear testing. It did work and worked very well in the test on the meat I.D. So there wasn't any inhibition that we were seeing on the meat I.D. test.
MR. JACKSON: But that's the I.D. test that you found pig?
MR. JACKSON: But, when you tested for dog for nuclear DNA, that test was either inhibited or so degraded that you couldn't tell?
MR. JACKSON: Thanks. That's all I have.
JUDGE CANNONE: Okay. Mr. Lally?
REDIRECT EXAMINATION BY MR. LALLY:
MR. LALLY: Ms. Kun, on that last point, when it pertains to the nuclear DNA testing, it was either inhibited, degraded or it wasn't there; is that correct?
MR. LALLY: Now, as far as samples in your line of work, are you typically going like outside of the lab or going out to like a scene or anything and 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: If we get the item, we are 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 Ms. Hartnett or anybody from the Massachusetts state lab in regard to the swabbing or the collection process?
MR. JACKSON: Objection.
JUDGE CANNONE: No. 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 a sterile swab, using sterile water, allowing the swab to dry completely and then packaging with paper and storing at room temperature before sending it to us.
BY MR. LALLY:
MR. LALLY: And, when you received it in those seven photographs before you, was the packaging that you received, was that appropriate? Was that what you expected?
MR. LALLY: Now, you described on direct as far as the mitochondrial DNA testing and the meat DNA as being heartier DNA; is that correct?
MS. KUN: So yes. The mitochondrial DNA is a heartier DNA. There is a lot more of it. When we are testing for nuclear DNA, like I explained before, there is only one copy of DNA in a cell, which, for the mitochondrial 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 is just a more sensitive test.
MR. LALLY: And there were no inhibitors or anything like that in the mitochondrial and meat I.D. testing that you did?
MR. LALLY: Thank you, ma'am. Your Honor, may I approach just to retrieve these?
JUDGE CANNONE: Yes. Did you have anything further, Mr. Jackson?
MR. JACKSON: Very briefly.
RECROSS-EXAMINATION BY MR. JACKSON:
MR. JACKSON: You indicated that you gave Ms. Maureen Hartnett certain protocols to follow in terms of her swabbing and recovery; is that right?
MR. JACKSON: Are you aware that Ms. Hartnett had also failed certain of her proficiency exams --
MR. LALLY: Objection, Your Honor.
BY MR. JACKSON:
MR. JACKSON: -- a couple of months earlier?
JUDGE CANNONE: I am going to strike that. The objection is sustained.
MR. LALLY: Thank you.
MR. JACKSON: Nothing further.
JUDGE CANNONE: All right. You are all set. You are excused.
(Whereupon, the witness is excused.)
JUDGE CANNONE: Could I see counsel just briefly, please?