Starcher, Justice, concurring in part, and dissenting in part:
I concur in reversing the defendant's conviction. I disagree with the majority's ruling on the issue of EIA test results, and I would not permit the re-trial of the defendant.
In the instant case, the State
argues that the results of the EIA test for chlamydia were admissible -- even
though the State's brief concedes that the EIA test is “not recommended”
for use in cases of suspected sexual assault.
But the disingenuous phrase
“not recommended” grossly understates the legal obstacles to using
EIA test results in a criminal case. Both the U.S. Center for Disease Control
(“CDC”) and the pharmaceutical company that manufactures the EIA
test have affirmatively and explicitly said that EIA test results are not
reliable enough to be used as evidence in suspected sexual abuse cases.
In 1993, the CDC issued a
strong warning that “only cell culture isolation using the standard methods
should be used to detect chlamydia . . . infection in the investigation of
possible sexual abuse.” In 1998, the CDC again cautioned that because
of “false positives” for the EIA test, “only standard culture
for isolation of chlamydia . . . should be used in evaluation of sexual assault
or abuse in children. . . . EIA technology [and another test called DFA] are
not acceptable alternatives.” (emphasis added). The company that manufactures the EIA test states
in a package insert that “[o]nly chlamydia cell culture isolation
should be used when testing for medico-legal purposes such as the evaluation
of suspected sexual abuse.”(emphasis added).
To repeat: these warnings
are not “recommendations,” as the State's brief erroneously characterizes
them. They are explicit statements from the highest independent authorities
in this area that the results of EIA testing are, because of reliability
concerns, “not acceptable” in cases of suspected abuse,
and that cell culture tests are the “only” acceptable scientific
tests for medical-legal purposes.
The results of a scientific
test can be admitted into evidence in a criminal trial only if the test is
reliable and relevant to the task at hand. Daubert v. Merrell
Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993); Wilt v. Buracker,
191 W.Va. 39, 443 S.E.2d 196 (1993). “The task at hand” at Mr. Leep's
trial was to determine in a criminal case whether Samantha Leep was sexually
abused. All of the scientific literature explicitly warns that EIA
test results are not reliable enough to be used for that task.
It was therefore clearly error
for the trial court to admit the EIA test results. I dissent to the majority's
holding on this issue.
Additionally, the improper
admission of the EIA test results in the instant case
This defendant has been tried
twice on these charges, both times without a valid conviction. The EIA test
evidence is clearly unreliable, and should not come before a jury. The strong
impression made by the record in this case is that the State's evidence, even
viewed in the best possible light, cannot establish the defendant's guilt beyond
a reasonable doubt. Under such circumstances, the proper result is to reverse
the defendant's conviction, not to reverse and remand for a possible third trial.
If there is a third trial, the defendant should again make a full and vigorous
record opposing the EIA evidence. Perhaps, if there is a next time on this issue,
this Court will get it right.
First, the EIA test results
evidence was the only evidence of penetration. At trial, the prosecutor affirmatively
stated to the jury that the element of penetration that is required for the crime of sexual
assault (as opposed to the crime of sexual abuse, which does not require penetration)
could not be established without the EIA test results. In his closing argument,
the prosecutor said:
Based on her evidence alone,
you can find the defendant guilty of sexual abuse in the first degree. You
do need to couple some with Dr. Brown's testimony [based on the EIA test]
to get the first degree sexual assault because of the issue of penetration.
Clearly that evidence was there. Between those two, Dr. Brown's testimony
and Samantha Leep's, is sufficient in and of itself to find out. [emphasis
added].
Because the State put on no
evidence of penetration other
than the unreliable EIA test results, the defendant's conviction for sexual
assault should be set aside on the grounds of insufficient evidence.
Second, the EIA evidence profoundly
affected the jury's view of the complainant's credibility with regard to all
of her allegations, not just the claim of penetration.
The prosecutor in fact argued to
the jury that it was the EIA test results themselves that proved that the complainant's
testimony was credible. Without the EIA test results, the jury would have seen
this as a case about a child who told several substantially conflicting versions
of events, none of which had any objective corroboration. With the EIA test
results, the jury was presented with “scientific proof” that the child
must be telling the truth. It is difficult to imagine greater prejudice from
the admission of the unreliable test results.
I am authorized to state that
Justice Albright joins in this separate opinion.