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Martinez (D) lured a 14-year-old Indian girl away from a pow wow and raped her. The victim immediately reported the incident, was examined at the local hospital and stated that she knew who had attacked her. She identified D. Evidence gathered at the hospital was tested by the F.B.I. laboratory by DNA profiling, with the procedure RFLP to isolate and analyze the semen. The tests concluded that 1 in 2600 American Indians would be expected to produce the identical genetic characteristics as D. Additional tests found the blood to be type O with an O secretor. D along with 56% of the American Indian population was a type O and O secretor. Dr. Adams from the F.B.I. lab testified at the pretrial hearing. It was determined by the district court that DNA typing is generally accepted in the scientific community, the testing procedures used by the F.B.I. were generally reliable, the F.B.I. protocol was proper in the case, and that the evidence was not more prejudicial than probative in this case. The court then determined that the statistics used in this case were more prejudicial than probative under Fred.R.Evid. 403. The test results were admitted but not the statistical summaries. D was convicted and appealed. D contends that because the evidence of statistical probability was withheld from the jury that all of the DNA evidence should have been inadmissible; the jury was left with the impression that D was the only person who could have been the source of the semen.

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