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In a case of first impression in New York, a Nassau County Court judge has ruled admissible at trial a type of DNA that lasts longer than the DNA usually presented as evidence, but that is also less accurate in making identifications. In People v. Klinger, 0849/00, Judge Jeffrey S. Brown permitted Nassau County prosecutors to present expert testimony related to so-called mitochondrial DNA, or mtDNA, in their case against two men charged with aiding and abetting each other in a rape trial. The evidence, mtDNA, is one of two types of DNA found in a cell, which also includes nuclear DNA. Because mtDNA exists outside the nucleus, it is heartier than nuclear DNA and survives exposure to the environment longer. Old bones and teeth, for example, may contain sufficient quantities for typing mtDNA in cases where nuclear DNA typing would fail to give a result. However, mtDNA patterns, the decisions stated, do not contain an identity that is as rare and as specific to a single individual as does nuclear DNA. Relying on testimony from DNA scientists Bruce Budowle and Terry Melton in a Frye hearing to determine admissibility, Brown held that the procedure used to analyze samples of mtDNA and the methods for interpreting the analysis were “generally acceptable as reliable in the scientific community.” Only one unreported case in New York deals with the reliability of mtDNA in the scientific community, the decision said. In People v. Edmund Ko, New York County Supreme Court Justice Harold Beeler rendered an oral decision May 11 that subjected contamination and the detection of multiple DNA, or heteroplasmy, to cross-examination. Budowle also was a witness in Beeler’s case. Brown determined, based on the scientists’ testimony, that the instances of contamination and heteroplasmy did not affect the reliability of the scientific procedure. About six labs in the United States, two of which are operated by the FBI and the Armed Forces Institute of Pathology, conduct mtDNA analysis. More than 50 labs in Europe perform mtDNA analysis. The DNA technology also is used in anthropology and to identify war remains. The confidence level of mtDNA — the indicator of its reliability — is between 95 and 99 percent, the decision said. Mitochondrial DNA has been found scientifically reliable in the U.S. District Court for the Eastern District of Ohio and in some state courts, including those in Tennessee, Michigan, North Carolina, Maryland and Pennsylvania. Nassau County Assistant District Attorney Robert Biancavilla represented the prosecution. Richard Librett of Garden City, N.Y.’s Librett, Friedland & Lieberman represented Michael Klinger, and Salvatore Marinello of Mineola, N.Y., represented Raymond Klinger.

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