MAY, J.
At trial, Winters testified she could not exclude Deloney or Douglas as one of the people who deposited DNA on the red hat, but neither could she include them: “there just was not enough information for me to say that they [Deloney and Douglas] are contributors.” . . . She further testified she could not calculate the statistical significance of any matches between Deloney’s profile and the DNA profiles found on the hat because the mixed sample did not allow for statistical analysis; thus, she could not calculate the probability the sample on the hat from the crime scene had or had not come from Deloney.
DNA evidence is admissible in Indiana when the DNA analysis indicates a defendant’s profile is consistent with DNA found at the crime scene because such evidence has high probative value. See, e.g., Smith v. State, 702 N.E.2d 668 (Ind. 1998). However, we have not addressed the admissibility of DNA evidence when – as in this case – a defendant could not be excluded from a possibly infinite number of people matching the crime-scene DNA and the DNA expert cannot offer a statistical probability whether the crime scene DNA came from the defendant. We therefore look to decisions from our sister states for guidance regarding the admissibility of DNA evidence in this circumstance.
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The reliability of techniques to procure and analyze DNA evidence is evolving, and states have responded differently to the admissibility of less-than-exact results. There seem to be three approaches, which we summarize as: (1) admissibility without statistical data if no match is found, [footnote omitted.] (2) admissibility without statistical data, if the jury is given some guidance regarding the significance of the DNA results, [footnote omitted.] and (3) admissibility only when statistical data is given. [footnote omitted.]
The third approach, which requires accompanying statistical data for DNA evidence to be admissible, comports best with our existing law regarding admissibility of evidence. For example, in Commonwealth v. Mattei, 920 N.E.2d 845 (Mass. 2010), the Massachusetts Supreme Court held it was reversible error to admit expert testimony that the defendant could not be excluded as a potential source of DNA found at the crime scene unless there was accompanying testimony explaining the statistical significance of those non-exclusion results. Without statistical data, evidence of a non-match is meaningless, and does not assist the trier of fact in determining the guilt or innocence of the defendant, as required for admissibility of the DNA evidence under Evid. R. 401 and expert testimony theron under Evid. R. 702. See State v. Tester, 968 A.2d 895, 907 (Vt. 2009) (“[t]o say that two patterns match, without providing any scientifically valid estimate (or at least, an upper bound) of the frequency with which such matches might occur by chance, is meaningless.”) (citation omitted). Therefore DNA evidence that does not constitute a match or is not accompanied by statistical data regarding the probability of a defendant’s contribution to a mixed sample is not relevant, Evid. R. 402, and should not be admitted. See, e.g., Nelson v. State, 628 A.2d 69, 75 (Del. 1993).
In the instant case, Winters was unable to exclude Deloney as a contributor to the DNA profile on the hat, and she was unable to give any statistical analysis of the probability of a match. Therefore, her testimony could not assist the jury in understanding the evidence or make the existence of some fact more probable or less probable. . . . Thus, the DNA evidence and Winters’ testimony lacked relevancy and should not have been admitted by the trial court.9 [9 We acknowledge a different panel of our court decided the appeal of Deloney’s co-defendant, Douglas, and held the trial court did not abuse its discretion in admitting the DNA evidence. See Douglas v. State, No. 22A01-0907-CR-337 (June 8, 2010). However, the thrust of Douglas’s challenge focused on the prejudicial effect of the DNA evidence and expert testimony under rule 403 rather than its admissibility under Rule 401, arguing that “The evidence’s probative value was substantially outweighed by unfair prejudice.” (Slip Op. at 5.)]
BAILEY, J., and CRONE, J., concur.