📄 Direct examination of Dr. Robin Cotton (part 3) — Tuesday, May 9, 1995
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▲ Day 70 of 167

Direct examination of Dr. Robin Cotton (part 3)

Witness: Dr. Robin Cotton
Examiner: George Clarke
Called by: Prosecution • Date: Tuesday, May 9, 1995 • Utterances: 396
Dr. Robin Cotton continues her direct examination by prosecutor George Clarke, covering Cellmark Diagnostics' chain-of-custody procedures, staff qualifications, written protocols, and an extended explanation of how population frequency data is calculated for DNA typing. The bulk of the session focuses on Clarke establishing Cotton's expertise and the scientific basis for frequency estimation, with Defense attorney Peter Neufeld repeatedly objecting on foundation grounds.
1 THE COURT:

Thank you, ladies and gentlemen. Please be seated. Dr. Cotton, would you resume the witness stand, please. The record should reflect we've been rejoined by all the members of our jury panel. Dr. Cotton is again on the witness stand undergoing direct examination by Mr. Clarke. Mr. Clarke, you may continue.

2 MR. CLARKE:

Thank you, your Honor.

3 MR. CLARKE:

Dr. Cotton, I believe we left off and you had described a first visit made by experts from the Defense in this case?

4 DR. COTTON:

Yes.

5 MR. CLARKE:

And you had described the fact that Dr. Blake was present?

6 DR. COTTON:

Yes.

7 MR. CLARKE:

You also described the fact that he in fact actually performed some cutting of some samples at that time?

8 DR. COTTON:

That's right.

9 MR. CLARKE:

All right. I would like to return to that in a little more detail later. But as far as these cuttings, was his role limited, as far as the cuttings are concerned, to actually physically cutting a portion of those pieces of evidence?

10 DR. COTTON:

That's right.

11 MR. CLARKE:

And did those--the entire evidence including both sides of the cuttings so to speak remain in your custody?

12 DR. COTTON:

Yes. All of the pieces remained in the custody of cellmark.

13 MR. CLARKE:

On that occasion--and do you recall approximately when that visit was?

14 DR. COTTON:

Well, I think it was sometime in July of last year.

15 MR. CLARKE:

Was there anyone else present with Dr. Blake?

16 DR. COTTON:

Dr. Lee and Mr. Neufeld.

17 MR. CLARKE:

And is that Dr. Henry Lee?

18 DR. COTTON:

Yes.

19 MR. CLARKE:

Now, were there any other visits to your laboratory by the Defense in this case?

20 DR. COTTON:

Yes.

21 MR. CLARKE:

When did that occur?

22 DR. COTTON:

Oh, gosh--

23 MR. CLARKE:

Approximately?

24 DR. COTTON:

I haven't a clue without going to look it up. I'm sorry.

25 MR. CLARKE:

Okay. Is that something that you could look up during the break for tomorrow?

26 DR. COTTON:

I could look it up before tomorrow.

27 MR. CLARKE:

All right.

28 THE COURT:

I take it that means we're not going to finish today.

29 MR. CLARKE:

I am not confident in finishing today, your Honor. I'm sorry.

30 THE COURT:

Let's move along.

31 MR. SCHECK:

January 26th.

32 MR. CLARKE:

Without getting into the date, Dr. Cotton, do you recall who was present during that visit, who actually made the visit?

33 DR. COTTON:

Yes. Dr. John Gerdes came to visit the laboratory.

34 MR. CLARKE:

And this was an individual also working for the Defense at that time?

35 DR. COTTON:

That's correct.

36 MR. CLARKE:

What was the nature of that visit?

37 DR. COTTON:

He came to the laboratory to basically look at the laboratory layout. We did that during the visit and he was--the mission was to examine documents that we hold at cellmark that he or the Defense wished that he look at.

38 MR. CLARKE:

Had he ever visited your laboratory before?

39 DR. COTTON:

No, he had not.

40 MR. CLARKE:

All right. With respect to the types of cases your laboratory takes, you described the fact that they involve human identification or forensic casework?

41 DR. COTTON:

That's right.

42 MR. CLARKE:

Paternity testing as well?

43 DR. COTTON:

That's right.

44 THE COURT:

I think that's about the sixth time we've asked that question.

KEY QUOTE
45 MR. CLARKE:

As far as other cases, does your laboratory have any contracts or have you had any contracts with the federal government?

46 DR. COTTON:

We had a contract with the Department of Defense. I don't know that that--the contract is not still working. I don't know what the right term for that is, but it's done. And the contract was for doing analysis for desert storm casualties.

47 MR. CLARKE:

So that was to help identify remains from the Persian Gulf war?

48 DR. COTTON:

Yes.

49 MR. CLARKE:

Now, approximately how many cases does your laboratory perform work on in the course of a year?

50 DR. COTTON:

Usually between 4- and 500.

51 MR. CLARKE:

And is that split up in any manner, paternity cases versus forensic cases?

52 DR. COTTON:

Oh, I'm sorry. That 4- to 500 would be forensic cases only and the paternity cases would be, oh, somewhere between a thousand and 1500.

53 MR. CLARKE:

You brought up the term earlier today "quality assurance." What is that?

54 DR. COTTON:

Basically, it's the set of procedures that are worked alongside your normal work to make sure that the equipment is functioning and to ensure that the quality of the work that comes out of the laboratory is always high.

55 MR. CLARKE:

Do you actually have a person who's assigned this area of quality assurance?

56 DR. COTTON:

Yes, we do.

57 MR. CLARKE:

And what's that person's role? What does he or she do?

58 DR. COTTON:

Umm, she keeps--well, she does a whole lot of different things. She--it might be a little easier just to sort of say what happens in a quality assurance program.

59 MR. CLARKE:

All right.

60 DR. COTTON:

But, for example, it includes being able to track and when reagents are made. That is things come into the lab and they're used to make solutions. So there are records of those solutions. There are many different things in the labs that have to be at constant temperature. So all the refrigerators, freezers water baths and so on, all those temperatures are maintained. She's also responsible for administering and looking at proficiency tests. She does audits of the laboratory. That is, every month or two months, she will walk through the laboratory unannounced and check out to make sure that all the equipment is in order. Anything that should have been calibrated or adjusted on a routine basis, the records are in place that those calibrations or adjustments have been done. And I guess that's the general idea of what she does. And now I don't remember where I was supposed to go from there.

61 MR. CLARKE:

Just in terms of quality assurance, this person performs this function of overseeing, quality assurance as you described it?

62 DR. COTTON:

She oversees--yes. She oversees it. That doesn't mean she goes and does all the temperature checks, but she oversees the entire program.

63 THE COURT:

Dr. Cotton, if you would, would you allow Mr. Clarke to finish asking the question before you start your answer?

64 DR. COTTON:

Yes, sir.

65 THE COURT:

You were both talking together.

66 MR. CLARKE:

Now, as far as casework, you receive cases in the laboratory; is that right?

67 DR. COTTON:

That's correct.

68 MR. CLARKE:

What steps do you take to ensure that when you receive, for instance, a set of evidence samples and let's say one or two known samples, to ensure that the chain of custody or the integrity of that evidence remains proper?

69 DR. COTTON:

The samples are assigned to a specific analyst. The analyst logs in each of the samples on a form. That means he or she writes down a specific description of the items that are received, how they were received, from whom they were received. We usually get a letter with the samples that says who we are allowed to contact regarding results, who we're going to send the bill to and so on. The analyst has specific areas within a locked evidence room where he or she stores the materials. The analyst has custody of the materials the entire time they're at cellmark and during the testing, keeps detailed records of where the samples are, at what stage in the testing. That is, she doesn't write down where they are because they would be in her area of the refrigerator or freezer, but she or he would write down they're in the freezer, they're in the refrigerator if that was important to keep track. And there are a lot of forms that get filled out during the testing that document how the testing was performed, and then at the end of the testing after the report is written, that person then returns the evidence or anything remaining from the evidence to the submitter.

70 MR. CLARKE:

You've described earlier that two individuals who actually performed testing in this case were Julie Cooper and--I'm sorry. Did you mention the second individual?

71 DR. COTTON:

I did. Paula Yates.

72 MR. CLARKE:

Paula Yates. Is there a title that they have in the laboratory?

73 DR. COTTON:

Both Julie and Paula are senior molecular biologists.

74 MR. CLARKE:

Why were there two individuals performing the actual testing in this case?

75 DR. COTTON:

Julie originally received the samples in this case, and sometime after she started the samples, she accepted a job at the Maryland State DNA laboratory where she's now a supervisor. And so because she was leaving cellmark, she transferred custody of all of the materials at that time to Paula Yates who continued on with the testing until it was completed.

76 MR. CLARKE:

Are you familiar with the qualifications of both Julie Cooper and Paula Yates?

77 DR. COTTON:

Yes.

78 MR. CLARKE:

Can you briefly describe each of their qualifications at the time of their testing?

79 DR. COTTON:

Both of them had worked for cellmark for about six years. Paula is the supervisor of the forensic group, has a bachelor of science degree from the university of Maryland and about six years experience of doing forensic testing. Julie has a masters degree in forensic science from George Washington university. She also had about six years of experience in forensic testing.

80 MR. CLARKE:

Had you prior to this case previously worked with both of those individuals, Julie Cooper and Paula Yates?

81 DR. COTTON:

Yes. Many times.

82 MR. CLARKE:

And is that something--well, let me rephrase that. Did you in fact work with them on a number of cases prior to this case?

83 DR. COTTON:

Yes.

84 MR. CLARKE:

Have you had an opportunity to review their casework in previous cases as well?

85 DR. COTTON:

Yes.

86 MR. CLARKE:

As far as the testing techniques that are used in the laboratory, do you have in place protocols about how tests are to be conducted?

87 DR. COTTON:

Yes, we do.

88 MR. CLARKE:

First of all, what is a protocol?

89 DR. COTTON:

Basically, it's sort of like a recipe book. It lists all the steps on how to do the test in--in a lot of detail.

90 MR. CLARKE:

Do these protocols apply to both your RFLP typing as well as your PCR typing?

91 DR. COTTON:

Yes. There's a separate probe--there's one book basically for RFLP and another book for PCR testing.

92 MR. CLARKE:

Is it common in science to have protocols describing how to conduct scientific tests?

93 DR. COTTON:

Very common.

94 MR. CLARKE:

As far as these protocols, is it something--for instance, for either RFLP typing or PCR base typing--that is relatively short or is it detailed and extensive?

95 DR. COTTON:

I've seen protocols that are relatively short and I've seen them that are detailed and extensive, and ours happens to be detailed and extensive.

96 MR. CLARKE:

Do you have any role in, for instance, either the creation or changes that are made to these written protocols?

97 DR. COTTON:

Yes.

98 MR. CLARKE:

Can you describe that, please?

99 DR. COTTON:

As laboratory director, my signature is required for final approval for any change in the procedure and my signature is required yearly on the procedure as evidence of the yearly review. So I participate in that yearly review with the quality assurance coordinator, and if we decide to make a change or an addition to the protocol, someone else certainly might write that and many people may look at it, but it requires my signature as laboratory director to be put into place.

100 MR. CLARKE:

I gather then changes are made to the protocol?

101 DR. COTTON:

Frequently.

102 MR. CLARKE:

Why is that?

103 DR. COTTON:

Umm, many of the changes are simply additions. That is, we might add--for example, we were doing DQ-alpha and then we wanted to do the poly-marker testing. So we had to write protocol that now included the poly-marker testing. But the other thing is that you might go to a scientific meeting or read something in the literature where someone had discussed a procedure that gave very good results. You would then check that out in your laboratory, and then if it was getting better results than your current procedure, you would go ahead and change your protocol to reflect the improvement.

104 MR. CLARKE:

Is that the nature of science itself?

105 DR. COTTON:

Yes.

106 MR. CLARKE:

As far as these protocols, do they start at a particular portion of the testing process and end at another one? Does that question make any sense?

107 DR. COTTON:

Well, it just covers all the steps.

108 MR. CLARKE:

Okay. From what point to what point?

109 DR. COTTON:

From--it starts out how do you log in the evidence. How do you properly receive the evidence is where it starts.

110 MR. CLARKE:

And then where does it end?

111 DR. COTTON:

It ends in how do you interpret the results.

112 MR. CLARKE:

Are individuals who are working in the laboratory such as Julie Cooper and Paula Yates required to follow these protocols?

113 DR. COTTON:

Yes.

114 MR. CLARKE:

What happens when something comes up in the course of testing?

115 THE COURT:

Kind of vague, isn't it?

116 MR. CLARKE:

Yes, it was. Perhaps if I added a little more to it.

117 MR. CLARKE:

What happens if something comes up in the course of testing that isn't covered by the protocols? What happens?

118 DR. COTTON:

Umm, generally, first you would make some notations about that in the case notes and then you might consult with someone else. If there's something--if we think that something should be done that's unusual, that's outside the protocol, then we'll make notations about that, and that generally would require approval of one of the Ph.D. staff.

119 MR. CLARKE:

Were your protocols reviewed by the Asclad inspection team prior your receiving their accreditation?

120 DR. COTTON:

Yes, they were.

121 MR. CLARKE:

Now, you've described the fact that records are kept in the course of receiving evidence through the various testing processes; is that right?

122 DR. COTTON:

That's right.

123 MR. CLARKE:

And are you familiar with how those records are kept by the analysts themselves?

124 DR. COTTON:

Yes, I am.

125 MR. CLARKE:

What's the basis--how come you're familiar with how they're done?

126 DR. COTTON:

Well, my role in the case is to get all the records and including the results and a draft report and review the records, review the data and review the report and participate in signing that report with the person who actually did the work with their own hands. So as part of my every-day job, I'm going through case records, reading them, checking them, making sure that they're all in order so that I can sign the case when it's done.

127 MR. CLARKE:

To be able to describe results in a given case, how can you do that without actually sitting there and watching every step of the testing process?

128 DR. COTTON:

When you're done with the test, you have some data. You have some information. So what I'm doing is participating with the analyst in interpretation of that data. And I have not sat and watched--I mean, if I was going to sit and watch, I might as well do it myself. I have not sat and watched every step of the test.

129 MR. CLARKE:

As far as your ability to offer an opinion, do you review all of the material in a given case prior to offering any opinions about it?

130 DR. COTTON:

Yes.

131 MR. CLARKE:

Whether that's in the form of testimony or in a written report.

132 DR. COTTON:

In either case, I would be reviewing all of the data and most of the documentation in the folder.

133 MR. CLARKE:

Okay. I'd like to turn your attention to an area that's commonly referred to as population frequencies. Is that term familiar to you?

134 DR. COTTON:

Yes, it is.

135 MR. CLARKE:

All right. What is that?

136 DR. COTTON:

It's the expression of saying for a particular genetic characteristic within a population or large group of people how often would you expect to find that characteristic.

137 MR. CLARKE:

For instance, would population frequencies enter into a description of approximately how many people have the ABO type, blood group type O for instance?

138 DR. COTTON:

Yes.

139 MR. CLARKE:

As far as population frequencies, could you describe, please, the education and training you received in the area of frequencies?

140 DR. COTTON:

The--my exposure to this particular area of biology has mainly been in the seven years I've been at cellmark because we deal with defining frequencies for the genetic markers we use every day. So I have no specific training outside of cellmark. We have a person on our staff who has a Ph.D. in this particular area. And as a part of my job, I--and when I go to scientific meetings, I'm both hearing lectures in this area and I make it a point to read the literature in this area as well.

141 MR. CLARKE:

How about your experience with frequencies in, for instance, casework?

142 DR. COTTON:

Well, in terms of doing a case, if you have samples that are consistent with some known person and this is part of your report, then as part of your report, if there is sufficient data, you're saying how often you might see this particular set of genetic characteristics. So in all the report--not all, but many of the reports that go out involve the calculation of frequencies or particular sets of genetic characteristics.

143 MR. CLARKE:

Do you consult with experts in the area of--well, let me rephrase that question. Is there a particular area of science that deals with, in particular, the area of populations and frequencies of genetic marker characteristics?

144 DR. COTTON:

Yes, there is.

145 MR. CLARKE:

What's that called?

146 DR. COTTON:

That discipline would be referred to as population genetics.

147 MR. CLARKE:

Do you and have you as a result of your employment at cellmark since--I'm sorry--what year?

148 DR. COTTON:

1988.

149 MR. CLARKE:

Have you consulted with population genetics experts about this area of population frequencies?

150 DR. COTTON:

Yes, we have.

151 MR. CLARKE:

And I believe you mentioned that you had an individual in your laboratory who--whose field of specialty is population genetics?

152 DR. COTTON:

Yes. One of our Ph.D. staff, Dr. Lisa foreman, is a population geneticist.

153 MR. CLARKE:

Do you routinely consult with her about population frequency information?

154 DR. COTTON:

Certainly.

155 MR. CLARKE:

As far as work conducted in your laboratory, do you then use population frequency data as a means of describing the significance of your results?

156 DR. COTTON:

Yes.

157 MR. CLARKE:

To your knowledge, has population frequency data been used for a substantial period of time?

158 DR. COTTON:

Oh, yes.

159 MR. CLARKE:

Can you tell us a little bit about that?

160 DR. COTTON:

Well, it's certainly been used in DNA typing since laboratories were initially engaged in that. But in terms of formulating information about serological results, the same kinds of calculations and information is usually provided. So if you have a set of information, then it includes blood types and PGM or however many markers you've done, you can do a calculation to say this particular set of markers would occur in some percentage of a particular population.

161 MR. CLARKE:

Is that related to, is it similar, different from population frequency use in DNA typing?

162 MR. NEUFELD:

Your Honor, I would object and I would ask that I conduct very brief voir dire on her expertise in this particular area.

163 THE COURT:

Overruled. We're still establishing that at this point.

164 MR. NEUFELD:

Okay.

165 THE COURT:

Proceed.

166 MR. CLARKE:

Do you recall the question?

167 DR. COTTON:

Could you go--ask it again?

168 MR. CLARKE:

Actually, your Honor, would it be possible to have that reread because I can't recall it exactly.

169 THE COURT:

It related--

170 MR. CLARKE:

Actually I can. I'm sorry.

171 MR. CLARKE:

As far as this use of population frequency data, has it been in use for a substantial period of time?

172 DR. COTTON:

Yes.

173 MR. NEUFELD:

Objection, your Honor. Foundation.

174 THE COURT:

Overruled.

175 MR. CLARKE:

As far as its use, that is, the use of population frequencies in casework, when did you begin using population frequency data in terms of reporting it in actual cases?

176 DR. COTTON:

You're talking about me personally or cellmark in general?

177 MR. CLARKE:

Let's start with the laboratory.

178 DR. COTTON:

Okay. There's going to be a little bit of time--there's a time frame in here where I can't be particularly accurate about the answer. I came to cellmark in 1988, and sometime during that year, I started being involved in forensic casework. At the time that I started being involved in forensic casework, we were in the process of developing population data that would allow us to do that. I think that we were all providing some frequencies before that based on population data from the other cellmark laboratory, but I'm not absolutely certain.

179 MR. CLARKE:

What about you personally?

180 DR. COTTON:

The point at which I would have been--become involved would have been the point at which I began signing forensic casework, and I was also involved in setting up how the population samples at cellmark would be analyzed and reported. So at that point, I became involved in discussing, understanding and generating population frequencies as they relate to DNA typing.

181 MR. CLARKE:

Do you have any role in supervising the actual reporting of frequencies in your laboratory, that is in casework?

182 DR. COTTON:

In terms of signing a particular case, both people who are signing that case have a role in generating and reporting that information. So in my role in signing cases, I am responsible for the information that's generated for that particular case and I also have overall responsibility for the scientific information that comes out of the laboratory. So under that umbrella, I guess I would have some responsibility as well.

183 MR. CLARKE:

As far as your previous testimony as an expert in DNA typing, have you reported population frequencies during that testimony?

184 DR. COTTON:

Yes, I have.

185 MR. CLARKE:

And I'm sorry. How many times had you said approximately you've testified previously?

186 DR. COTTON:

Oh, probably about 90 times.

187 MR. CLARKE:

And amongst that 90, is there any way you can put a figure or a rough estimate of the percentage of the time you report population frequency data?

188 DR. COTTON:

I couldn't give you an exact figure since I'm not even giving you an exact figure of how many times I testified. But for most of the cases, probably 80 or 90 percent of the cases in which testimony is provided in Court, we are providing some population genetic frequency for a particular set of markers.

189 MR. CLARKE:

The written protocols you have in place in the laboratory, do they describe the reporting of population frequencies?

190 DR. COTTON:

Yes, they do.

191 MR. CLARKE:

And in what manner? Is this--is it fairly short, detailed? Can you describe that?

192 DR. COTTON:

The calculations, although they're done by computer, can also be done by hand, and the protocol simply describes how to go about entering that data for--and that's for RFLP. For PCR results, we do not have a computer program to do the calculations for us. So the calculations are done by hand. And when you review a case, in my role in reviewing a case, those calculations have been done by the analyst, I'm checking them and then we're both signing the report.

193 MR. CLARKE:

When you say that those are done by hand, do you mean by using a calculator or really by hand?

194 DR. COTTON:

No. I mean by writing the individual frequencies down so that they--we have a permanent record of them and then by using a calculator, to multiply them together.

195 MR. CLARKE:

All right. With regard to this concept of population frequencies, how do you calculate them for a given type, for instance, at a given genetic marker?

196 MR. NEUFELD:

Objection at this point. Foundation, your Honor.

197 THE COURT:

Sustained.

198 MR. CLARKE:

With regard to this area of population frequencies, is there a term called "database"?

199 DR. COTTON:

Yes.

200 MR. CLARKE:

What's a database?

201 DR. COTTON:

It's basically a sample of a population. If you--obviously, you can't sample all the people in the country or you couldn't even sample all the people in a given state. So you need to take a small subset of the total population and then regard that as your sample. It's similar to taking a poll for television viewing. Nobody calls up everybody who's watched television on a particular night. They take a sample of the people who have watched television on a particular night and make some assessment of the larger sample based on the small--the larger population based on the small sample.

202 MR. CLARKE:

And how does that play a role in your ability to be able to estimate how common or how rare a set of characteristics is?

203 DR. COTTON:

Well, I think you've just actually said the important word. That is "estimate." If I have a sample of 200 individuals, for example, and I do an RFLP test on all those 200 individuals, I've now looked at--for any given genetic locus, I've looked at 400 chromosomes. So I have 400 pieces of information. And from that, I can ask the question if I have a DNA band that's 5,000 base pairs long for this particular genetic locus, how often in my population sample do I find a person with this genetic characteristic, a DNA band at 5,000 base pairs.

204 MR. CLARKE:

Does that involve then the use of more than one database for a particular genetic marker?

205 DR. COTTON:

Traditionally, databases are divided into racial or ethnic groups.

206 MR. NEUFELD:

I'm sorry. Objection again. Foundation rather than traditional.

207 THE COURT:

Overruled.

208 MR. CLARKE:

You may continue.

209 DR. COTTON:

Our databases at cellmark are divided into racial or ethnic groups. You could maintain any number of databases in our laboratory. We have three. They are popu-- and I guess for the moment, I'll just speak about RFLP. But the situation for PCR is similar, and they are divided into African Americans, Caucasians and Hispanics.

210 MR. CLARKE:

Why this concern with different databases from different racial or ethnic groups?

211 MR. NEUFELD:

Objection. No foundation with regards to her expertise.

212 THE COURT:

Sustained.

213 MR. CLARKE:

With regard to the area of population frequencies, are you familiar with other DNA laboratories and their methods of calculating these estimations of the--how common or how rare characteristics are?

214 DR. COTTON:

Yes, I am.

215 MR. CLARKE:

How are you familiar with that?

216 DR. COTTON:

Both from reading the literature, talking to other scientists and hearing information presented at scientific meetings.

217 MR. CLARKE:

Is this something you do on a regular basis?

218 DR. COTTON:

Do those things?

219 MR. CLARKE:

Yes.

220 DR. COTTON:

Yes.

221 MR. CLARKE:

What about scientific literature? Does it play any role in your knowledge of the area of population frequency data?

222 DR. COTTON:

Yes.

223 MR. CLARKE:

Can you describe that in more detail?

224 DR. COTTON:

Well, there's actually--at this point, there wasn't--this was not the situation in 1988 for example. But at this point, there is a lot of information in the literature about population data based on DNA typing. So anyone who is interested or involved in doing DNA typing analysis either for paternity or for forensics would be interested and need to keep up with this literature.

225 MR. CLARKE:

What types of literature do you read in that area other than the general topics obviously? But are there particular resources that you have in terms of particular journals and so forth?

226 DR. COTTON:

There are two journals in which--which would include most of the papers, certainly not all. One would be the journal of forensic science and the other would be the American journal of human genetics. Now, there are a few papers that are somewhere else. There's a couple in science and--anyway, they're here and there. But for the most part, the two journals have covered more of them than maybe others, some other journals.

227 MR. CLARKE:

If you could describe, how do those journals, how closely do they deal with this actual concept of population frequencies and reporting results following DNA typing?

228 MR. NEUFELD:

Objection. Hearsay, no foundation as to her expertise on this area.

229 THE COURT:

Overruled. Proceed.

230 MR. NEUFELD:

And may I voir dire the witness?

231 THE COURT:

Overruled. Proceed.

232 DR. COTTON:

Are you sort of asking me what types of things are in literature?

233 MR. CLARKE:

That you read, yes, in this area, population frequencies.

234 THE COURT:

What I'm allowing, counsel, is what is the source of her knowledge in this area.

235 MR. CLARKE:

Yes.

236 THE COURT:

All right. Rephrase the question.

237 MR. CLARKE:

All right. With respect to your review of scientific literature regarding population frequencies, can you just tell us, as far as the literature you've described, does it address the reporting or the estimation of frequency data in DNA typing cases?

238 MR. NEUFELD:

Objection.

239 THE COURT:

Overruled.

240 DR. COTTON:

It doesn't so much address the reporting. What the literature is addressing is how the frequencies are calculated and--and how individual frequencies are determined and how populations differ. That is, are there large or small differences between African Americans and Hispanics or Caucasians and Hispanics in how frequently these particular characteristics occur.

241 MR. CLARKE:

Do you regularly speak with population geneticists about the methods used in your laboratory? And you've described the one on staff. Are there other individuals?

242 DR. COTTON:

Uh, we have a particular person who's a population geneticist who we speak with on a regular basis. And that would be Dr.--

243 MR. NEUFELD:

I'm going to object as to the "we" and need to ask for clarification as to--

244 THE COURT:

Overruled. Proceed. There's nothing confusing about this. Proceed.

245 DR. COTTON:

And that would be Dr. Bruce weir.

246 MR. CLARKE:

Who is Dr. Bruce weir?

247 DR. COTTON:

Dr. Bruce weir is the Professor at north Carolina State university. He is a population geneticist and very highly regarded in this area.

248 MR. CLARKE:

Has he written in this area?

249 DR. COTTON:

Yes, he has.

250 MR. CLARKE:

A little bit or extensively?

251 DR. COTTON:

Extensively.

252 MR. CLARKE:

In terms of these consultations with Dr. Weir, has he reviewed material at your laboratory that you utilized to report population frequency data?

253 DR. COTTON:

Yes, he has.

254 MR. CLARKE:

As a result of that, have you incorporated any suggestions, comments, et cetera, that he may have about the methods of reporting data in your laboratory?

255 MR. NEUFELD:

Objection. Hearsay as to Dr. Weir.

256 THE COURT:

Overruled.

257 DR. COTTON:

The basic answer to the question is yes. Most of his input is in some data that's being currently developed. He's also looked at much older data that was developed by our laboratory, but he hasn't--in the older data, he has not made any suggestions that resulted in large change or really any changes in procedure to speak of.

258 MR. CLARKE:

And that was after his having--when you say no changes, that was after his having looked at these procedures in place in your laboratory?

259 DR. COTTON:

Yes, that's right.

260 MR. CLARKE:

All right. Is there a way you can describe the basic method by which population frequencies are report--are actually calculated?

261 DR. COTTON:

Yes.

262 MR. CLARKE:

All right. Could you do that, and would it help to use a diagram or chart?

263 DR. COTTON:

At this--

264 MR. NEUFELD:

Again, your Honor, I object again on foundation.

265 THE COURT:

Overruled.

266 MR. CLARKE:

Would it assist you to use a drawing pad or would you prefer to do it just by description?

267 DR. COTTON:

I think we'd better have the drawing pad.

268 MR. CLARKE:

Okay.

269 MR. NEUFELD:

Your Honor, brief sidebar? It might save time.

270 THE COURT:

Conclusion of the day.

271 (Brief pause.)
272 MR. CLARKE:

Your Honor, I believe this would be exhibit 255, People's exhibit.

273 THE COURT:

255.

274 (Peo's 255 for id = diagram)
275 THE COURT:

Mr. Clarke.

276 MR. CLARKE:

Thank you. Dr. Cotton, if you would--and this will be People's exhibit 255. Do you have a title that would describe this particular chart? Population frequencies? Is that--

277 DR. COTTON:

Population data.

278 MR. CLARKE:

Population data? All right. Now, if you could use that diagram to demonstrate the basic method by which population frequencies are determined to describe how common or how rare a particular genetic marker type is.

279 MR. NEUFELD:

Your Honor, I would object in so far as the general statement--

280 THE COURT:

Sustained. Rephrase the question.

281 MR. CLARKE:

With regard to your laboratory and how you calculate an estimate of how common or rare a characteristic is, how do you do that?

282 DR. COTTON:

You are going to do that based on a population sample that's either been developed in your laboratory or somewhere else. In our case, our population samples for RFLP were developed in our laboratory. So if you go back to the explanation yesterday, what you're doing is, you're taking a sample of people and you're doing the RFLP test on all of those people. So what I'm going to do on the diagram is sort of show you what--give you an example of what a sample of people looks like and then show you how that would be used to estimate a frequency. So we're going a make a mini population on the diagram.

283 MR. CLARKE:

All right.

284 (Brief pause.)
285 MR. CLARKE:

Now, let me stop you if I can, Dr. Cotton. You've written on this chart labeled "population data" what appears to be the numbers 1, 2, 3, 4 and 5?

286 DR. COTTON:

Yes.

287 MR. CLARKE:

And then below each of those numbers, you've written in what appear to be two bands? Is that what those are intended to depict?

288 DR. COTTON:

Right. In other words, I'm trying to show you a diagram of an autorad with five samples.

289 MR. CLARKE:

All right. Go ahead.

290 DR. COTTON:

Okay. In my five samples--because I have two bands for each sample. That is for each of these people, one for mother, one for father--I've got 10 bands altogether.

291 MR. CLARKE:

Actually, would it help to draw basically lines between these lanes so that at least on this diagram--

292 DR. COTTON:

Oh, sure.

293 MR. CLARKE:

--it would be easier to tell? And maybe in a different color also. You can start as high as the numbers themselves that label the samples.

294 (Brief pause.)
295 MR. CLARKE:

Okay. Now, if you would proceed.

296 DR. COTTON:

Okay. Now, let's suppose that we have yet one more sample. We'll call it A. I guess I should make-- and let's say-- could I have one more color, maybe black or something?

297 MR. CLARKE:

I hesitate to try the dry erase. Now I'm concerned it might be erasable.

298 THE COURT:

Mrs. Robertson, do we have a black marks-a-lot? I think I have one back by my microwave. That's just a highlighter, doctor. That will fade.

299 MR. CLARKE:

We have black. Thank you.

300 DR. COTTON:

We'll go back to my very simple example. And let's remember that where a band is, looking from the top to the bottom, is related to how big it is. And so let's say that we've determined that this band is in sample a is 5,000 base pairs. And so the question then is, well, how often would we see another person with this particular band. And although every time you do this, you're not going to go look at a whole set of x-ray films, you have all the data in a computer from those x-ray films, and the question you're saying is, "I have a band at 5,000 here in my population sample. How many other people do I see that have a band there?" So let's say that this band was also 5,000 and this band was also 5,000 and this one was also 5,000.

301 MR. CLARKE:

Now, when you use the term "5,000," what are you referring to?

302 DR. COTTON:

I'm saying the length of DNA that formed this band was 5,000 base pairs long, using base pairs as a measure of length.

303 MR. CLARKE:

All right. Go ahead.

304 DR. COTTON:

And I've made this example very simple because I've made each of these bands be exactly the same size as this one. And that's not really necessarily--they wouldn't be necessarily that close. So out of the 10 bands that I see, three in my sample are 5,000 base pairs. So three out of 10 people, three out of 10 chromosomes would have a band at 5,000. So .3 would be the frequency for this band based on my limited sample.

305 MR. CLARKE:

What would you do then next?

306 DR. COTTON:

Then you would go through the same exercise for the second band in that sample. And say this was--I didn't give this any counterparts. That's not so good. I'll tell you what. Let's get rid of this one and make it be here. Suppose this size was determined to be 2,000 and this size was also 2,000. And in this case, for this band, we had one out of 10 chromosomes that had this size. So the frequency for this band would be .1. The frequency for this combination then would be two times the product, .3 times .1.

307 MR. CLARKE:

Now, you've talked about multiplying things together there; is that right?

308 DR. COTTON:

Yes.

309 MR. CLARKE:

Why do you use multiplication?

310 MR. NEUFELD:

Objection, your Honor. No foundation for this witness.

311 THE COURT:

Sustained. Rephrase the question.

312 MR. CLARKE:

All right. With regard to the step you just did in terms of multiplying, what's the reason for that? Why do you multiply?

313 MR. NEUFELD:

Objection. No foundation for this witness.

314 THE COURT:

Sustained.

315 MR. CLARKE:

As far as--and let's talk about the databases that you have in the laboratory. You've drawn a diagram with basically five different persons' DNA on this particular chart?

316 DR. COTTON:

Yes. On this chart.

317 MR. CLARKE:

How large are the actual databases that you use in your laboratory?

318 DR. COTTON:

The databases in the laboratory range in size from about a hundred and fifty to somewhat over 300. And the reason I'm saying "range" is that for one genetic locus, we may have--and for one racial group, this number of people that we've sampled may be different than for another genetic locus or another racial group. So that's the range of size--sizes of the samples that have been done in our laboratory.

319 MR. CLARKE:

Is that enough of a number of samples to look at to be able to estimate how rare something is?

320 MR. NEUFELD:

Objection. No foundation for this witness.

321 THE COURT:

Sustained.

322 MR. CLARKE:

With regard to this examination of databases--and you've used the example of what? Results of an RFLP test here?

323 DR. COTTON:

Yes.

324 MR. CLARKE:

How are these databases created in terms of, how do you determine out of these 150 or more samples the various sizes of the various bands?

325 DR. COTTON:

It's done in exactly the same way the casework analysis is done. You extract the DNA. You cut it with an enzyme. You run it on a gel. You do a southern blot, you get an autoradiograph and you size the--you estimate the sizes of the bands and the autoradiograph with computer imaging system exactly as you do a regular case.

326 MR. CLARKE:

Is this the same--this process you've described up to now--the same or different from those methods used in serological cases like methods that typed PGM four years previous?

327 MR. NEUFELD:

Objection. No--again, foundation as to serology.

328 THE COURT:

Overruled.

329 DR. COTTON:

Are you asking me if the calculation is similar?

330 MR. CLARKE:

This principal of looking at databases and determining relevant rarity or how common characteristics are.

331 DR. COTTON:

That would be similar to how this--those calculations are done for serological markers.

332 MR. CLARKE:

As to serological markers, once you've determine let's say an approximation of how common or rare a PGM type is, are there, using serological techniques, similar estimations made of the same sample of another genetic marker like ESD or GLO?

333 MR. NEUFELD:

Objection. No foundation for this witness.

334 THE COURT:

Sustained.

335 MR. CLARKE:

To your knowledge, how similar is the method of calculating frequencies in DNA typing to previous methods that have been in use for longer periods of time?

336 MR. NEUFELD:

Objection. Previous methods, no foundation as to this witness.

337 THE COURT:

Sustained.

338 MR. CLARKE:

All right. With respect to these fragments that you've described--and let's go back to the chart you've created. And you show 5,000 for what is it? Four of the particular markers and then 2,000 for two of them?

339 DR. COTTON:

Yes.

340 MR. CLARKE:

What role do the other fragments play that you have not at this point labeled an approximate size to as far as determining from databases how common or rare something is?

341 DR. COTTON:

How many bands you have is how many alleles you've looked at.

342 MR. CLARKE:

Okay.

343 DR. COTTON:

So if you want to calculate how often you see something, it's going to be some percent of the total. So we have 10 total, three is some 30 percent of that.

344 MR. CLARKE:

And as far as your own training in terms of reading the literature and performing these calculations in your laboratory, is what you've presented simply a simplified version of what you have reported in cases for a number of years?

345 DR. COTTON:

Yes.

346 MR. CLARKE:

What happens when you look at additional markers as well? In fact, let me back up. Let me rephrase that. The diagram that you've just created relates to one genetic location?

347 DR. COTTON:

Yes.

348 MR. CLARKE:

Do you look at more than one genetic location normally when using the RFLP technique?

349 DR. COTTON:

Normally you would look at anywhere between three and five. Now, you could look at more. Our laboratory I should say--let me restate that. Our laboratory has the capability of looking at five.

350 MR. CLARKE:

And do you in casework frequently use five particular locations?

351 DR. COTTON:

Yes.

352 MR. CLARKE:

These locations are what? A different--well, what's the technical term for the term "location"? Do you have a word that you actually use in DNA typing?

353 DR. COTTON:

Yes. It's--it's the chromosomal locus. So the word that you'll hear is "locus." When you say, "I have a DNA probe or a genetic location," what you're really saying is the locus, which means the address on the chromosomes for this piece of DNA.

354 MR. CLARKE:

Is there a plural form for locus when you refer to multiple locations?

355 DR. COTTON:

Loci.

356 MR. CLARKE:

And those are just scientific terms for where something is on the DNA molecule?

357 DR. COTTON:

That's right.

358 MR. CLARKE:

Okay. May I have just a moment, your Honor?

359 THE COURT:

Certainly.

360 (Discussion held off the record between the Deputy District Attorneys.)
361 MR. CLARKE:

Now, Dr. Cotton, referring to this diagram again and using the example of this one genetic marker location, in your training--and let's go back to the education you received in terms of your formal education. Did any of these concepts of population genetics arise?

362 DR. COTTON:

Yes.

363 MR. CLARKE:

In what way?

364 DR. COTTON:

Well, to tell you the truth, it's been so long since I was in undergraduate school, I really couldn't tell you what course they were in. Most of the principles that are used in DNA typing that relate to population genetics, you can find a pretty good discussion for in any college genetics textbook. Now, that doesn't mean the area is simple. There are complicating things that--that when an analyst such as Bruce weir looks at a set of data, he is doing something more complicated than what's in a college genetic textbook. But the principles that are involved in doing these calculations are generally outlined at that level. That's where I would have been first exposed to them.

365 MR. CLARKE:

Okay. And then where next in chronological order would you have then been exposed to these same concepts?

366 DR. COTTON:

When I went to cellmark.

367 MR. CLARKE:

And can you describe in a little more detail how you came about to be able to calculate these frequencies?

368 MR. NEUFELD:

Objection. It's a definitive question.

369 THE COURT:

Overruled.

370 DR. COTTON:

Basically it was clear that we needed to be able to make an estimate for a particular genetic--for a particular DNA type or a DNA profile. It was clear that part of the information we needed to provide was how common or rare that profile would be. Umm, with assistance from the cellmark lab in the U.K. And discussions with the staff at cellmark, the group of us that were there at the time sat up the procedures that we would use, gathered the population samples, did the analysis on the samples. About the time we were doing the analysis on the population samples, Dr. Foreman came to the lab. So it was really a combined effort, certainly not mine alone, to set up the procedures that we are now using for creating estimates for population frequencies. Now, what I'm--let me make something clear. The calculations are laid out. They make some assumptions. In fact, the particular assumption that the calculation makes is that what's inherited at one genetic location does not affect what's inherited at another genetic location. These sets of assumptions are not--they're not--it's not a formula that we devise. The formula that's used in these calculations was developed in the 1930's and is the same type of formula that's used in the calculations for serological markers. What we did in the laboratory was develop the population data and then the methods to sort of query that data. And really what I'm getting at is that when I have a band that's 5,000 base pairs, there can be some variation in that size if you run the same sample over and over again. So when we query the--when we go to the database, we've never looking for something that's exactly the size. We're looking for a range of sizes. And the methodologies that we use to determine those ranges were all developed at cellmark by the group of us who were working on that project at the time.

371 MR. CLARKE:

Now, you've described in sizing these samples just now the fact that it's an estimation; is that right?

372 DR. COTTON:

Uh-huh. That's right.

373 MR. CLARKE:

As part of an estimation then, when you look through databases to see if the sample matches or not--well, let me rephrase that. When you look through a database to determine approximately how rare or how common a particular characteristic is, do you take any steps to make sure that you don't overstate the rarity of that characteristic?

374 DR. COTTON:

Yes.

375 MR. CLARKE:

How do you do that?

376 DR. COTTON:

The situation is that, when you run a DNA sample on an agarose gel, as I described yesterday, that procedure has limitations. You're getting an autorad, you're using a computer imaging system and you're estimating the size of the DNA that created a particular band. Even if I take the same sample and I run it 20 times or 50 times, the size estimates will not be identical. Let's go down and write underneath some--a little more realistic example.

377 MR. CLARKE:

All right. And you're writing on the same document, People's exhibit 255?

378 DR. COTTON:

Yes, I am. Let's say--and I'll put my new more realistic example in parenthesis. Let's say that this size came out to be 5,010 base pairs and the next one came out to be 5,030 and the one over here came out to be 4,982. None of these numbers are exactly 5,000. So in my little mini database here, if I ask the question, now assuming that the figures are the ones in parenthesis, if I said, how often do I see a person with a band at 5,000, I would look across here at these numbers and I will say, well, I hadn't seen one. So--in my 10 people, I hadn't seen anyone, and then you would have to make some assumption, well, if you look at more people, would you see one or, you know, you would have to make some calculation after that. So basically, I would very much underestimate this frequency if I look only for this exact size. But we know that there is imprecision in this gel system. It exists in every gel system that's like this that's run for RFLP typing. It's a feature of the system and it's important that if you're using this system, you understand that.

379 MR. CLARKE:

Is that a--I'm sorry, Dr. Cotton. Is that a feature--when you say it's a limitation, is that something unique to your laboratory?

380 DR. COTTON:

No. What I'm trying to say is that any laboratory that's doing RFLP typing and running an agarose gel will have this same problem.

381 MR. CLARKE:

And when you say "agarose gel," that's simply what the gel is made of, agarose?

382 DR. COTTON:

That's right.

383 MR. CLARKE:

Okay. Go ahead.

384 DR. COTTON:

And when I say "problem," it's not an insurmountable problem, but it's something that you want to be aware of. So if I now say, okay, I recognize that there's some imprecision in this measurement and based on some work that I've done in the laboratory, I recognize that the range of sizes that I might get might go anywhere from a low of 4,980 to a high of 5,030. Now when I go to my database, I'm not going to look just for a size that's 5,000. I'll look for something in this range because I know or I've determined in the laboratory that this is the realistic size range that I could expect if I ran something over and over and over again.

385 MR. CLARKE:

How do you determine those ranges?

386 DR. COTTON:

Well, you could do it in a--do it just what I said. You take a sample and you run it over and over and over again and you see how much variation you get when you do that.

387 MR. CLARKE:

All right. Go ahead.

388 DR. COTTON:

And we've done that and it's worked. Anyway, now when I go to the database, I'm looking at this window of sizes. And now based on that window of sizes and the numbers that I have in parenthesis, I would say I saw three people in my database whose sizes were in this range.

389 MR. CLARKE:

Does that have the effect then of ensuring that you don't overstate the rarity of characteristics that are similar or the same?

390 DR. COTTON:

If your window is appropriately determined, it does.

391 MR. CLARKE:

Why do you adopt that approach in terms of frequency data calculation in your laboratory?

392 DR. COTTON:

Because that's the logical approach. You can't--if you know the system has a limitation, you have to work around that limitation.

393 MR. CLARKE:

Okay. You also described the existence of a formula for when you're looking at more than one genetic marker?

394 DR. COTTON:

Yes.

395 MR. CLARKE:

Why is that formula important when you look at more than one marker?

396 MR. NEUFELD:

Objection as to foundation for this particular witness.

Temperature

procedural

Key Quotes (4)

Dr. Robin Cotton
The formula that's used in these calculations was developed in the 1930's and is the same type of formula that's used in the calculations for serological markers.
Anchors DNA frequency calculations to well-established science, preempting defense attacks on novelty
Dr. Robin Cotton
If I said, how often do I see a person with a band at 5,000, I would look across here at these numbers and I will say, well, I hadn't seen one... you would very much underestimate this frequency if I look only for this exact size.
Explains why Cellmark uses size ranges rather than exact matches — a methodological safeguard against overstating rarity
Lance A. Ito
I think that's about the sixth time we've asked that question.
Judge's mild rebuke of Clarke for repetitive foundational questioning
Dr. Robin Cotton
The particular assumption that the calculation makes is that what's inherited at one genetic location does not affect what's inherited at another genetic location.
Articulates the product rule assumption underlying frequency multiplication — the core statistical concept the defense would later contest

Evidence (1)

People's 255
Hand-drawn diagram labeled 'Population Data' created by Dr. Cotton on the stand, illustrating a mini population sample with five lanes of RFLP bands and frequency calculations
created and discussed during testimony

Notable Exchanges (3)

Peter NeufeldLance A. Ito
Neufeld repeatedly requested voir dire of Cotton on population genetics expertise; Ito overruled each request, stating 'There's nothing confusing about this. Proceed.'
strategic
Barry ScheckGeorge Clarke
Scheck spontaneously called out 'January 26th' when Clarke asked about the date of Dr. Gerdes' lab visit, volunteering the answer from counsel table
collegial/informal
Lance A. ItoDr. Robin Cotton
Judge admonished Cotton to wait for Clarke to finish asking questions before answering, noting they were talking over each other
procedural

Light Moments (3)

George Clarke
Clarke couldn't remember his own question and asked for it to be re-read by the reporter, then immediately said 'Actually I can. I'm sorry.'
Lance A. Ito
Judge noted he had a marker 'back by my microwave' but it turned out to be only a highlighter that would fade — prompting a hunt for a proper black marker mid-testimony
Lance A. Ito
When Clarke signaled they wouldn't finish that day, Ito dryly noted 'I take it that means we're not going to finish today' and told counsel to move along

Credibility Attacks (1)

⚔ Dr. Robin Cotton
foundation challenges to expertise
Neufeld made sustained effort throughout the session to block Cotton's testimony on population genetics and frequency calculation on grounds she lacked sufficient expertise in that subspecialty, winning several sustained objections that forced Clarke to narrow or rephrase questions

Witness Demeanor

Methodical and professorial throughout; frequently self-corrected mid-answer
Occasionally lost her train of thought ('And now I don't remember where I was supposed to go from there')
Deferred politely when corrected by the judge ('Yes, sir')

Objections

16 objections (7 sustained, 9 overruled)
Proceeding 5972 • 396 utterances • Prosecution witness
Criminal Trial
Department 103
⚖️ Start
📂 MAY 9, 1995 📄 Direct examination of Dr. Robi
MAY 9, 1995 KRT DvH TD