How Should Forensic Genetic Genealogy Navigate the Court System?

Forensic Genetic Genealogy was recently introduced into court as an investigative lead in the trial of Patrick Leon Nicholas for the 1991 murder of high school senior Sarah Yarborough in Federal Way, WA as a way to address privacy concerns that the defense raised related to the state constitution. This landmark case has brought to the forefront important issues concerning the relevance of introducing FGG in court. FGG can only produce investigative leads; ultimately legal identification depends on an STR match to crime scene DNA.

Although many potential jurors are aware of this technology and how it can be used to solve cold cases, it is important to explore privacy considerations and opinions related to FGG beginning in voir dire. Jurors may have strong reactions, both positive and negative, to the use of this technology in criminal cases. Thus, concerns about genetic privacy and potential police overreach should be explored during jury selection in order to seat a fair and impartial jury. During trial, a qualified, competent expert witness should be more than capable of responding to these issues, so long as privacy policies and terms of use were complied with by investigating agencies.

Even so, an expert witness must meet ANAB and OAS standards, which brings up additional concerns over the lack of training and professional background of FGG practitioners. An expert is viewed, not as a subject matter expert in a narrow sense, but as a person qualified by knowledge, skill, experience, training, or education, that is, a practitioner broadly defined as an expert by his education and relevant work experience.  At present the FGG community offers many training courses in genetic genealogy, but there are few in professional development in a larger sense, and very few, if any, covering expert witness testimony.  Practitioners called to testify in the near future will have little experience preparing for testimony, and no knowledge of what to expect.

This talk briefly covers developments in the Yarborough homicide relevant to FGG, from 2011, when Y-STR FGG was first suggested as a means of discovering the offender’s name, through the 2019 identification of Patrick Nicholas as a suspect using autosomal SNP testing.  We discuss the reasons why FGG was introduced into the case, the defense strategy, the testimony provided by the expert witness, and the jury’s decision to convict Patrick Nicholas of murder in the first degree with special circumstances and murder in the second degree.  He was sentenced on 25 May 2023 to 45 years 8 months in prison.

In summary, the talk provides insight into the technical and legal developments on the case, in the context of challenges the community faces if FGG should move further into the court system.