In People v. Wortham, 2021 WL 5451365, which the New York Court of Appeals decided this November, Judge Wilson, in dissent, argued that a limited remand for a Frye hearing—a hearing that should have been held in the first instance but wasn’t—was unconstitutional. Judge Wilson is always thoughtful. As best one can tell, however, no judge­—state or federal—has previously reached that conclusion. Was he right?

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In May 2011, the police executed a search warrant at a Brooklyn apartment and recovered weapons, drugs and drug paraphernalia from a back bedroom and arrested Tyrone Wortham, who lived in the apartment. Prior to trial, defense counsel moved (1) to preclude expert testimony regarding the probability that Wortham was a contributor to a multiple-source DNA sample taken from evidence in the apartment, a statistic derived from the use of a sophisticated “FST procedure,” or (2) for a Frye hearing on the general acceptance (or lack thereof) of that procedure. The trial court denied the motion without a Frye hearing, and Wortham was convicted on all counts.