Richard Eikelenboom, a DNA expert described by media sources as “prominent,” was barred from testifying in a recent trial. Although Eikelenboom has testified in several high-profile cases, the court decided to exclude Eikelenboom’s expert opinions in a sexual assault trial in Denver. The prosecutor and Eikelenboom have differing perspectives as to the reason for that ruling. Unfortunately, a transcript of the court’s decision reveals that the court did not explain its reasoning in barring Eikelenboom from testifying.

Eikelenboom’s History as an Expert Witness

Eikelenboom is perhaps best known for his work on behalf of Casey Anthony, who was acquitted of murdering her daughter Caylee in a well-publicized trial during 2008. The prosecution theorized that Casey Anthony rendered her daughter unconscious with chloroform, covered her mouth and nose with duct tape, and concealed her body in the trunk of her car for several days before disposing of it. The acquittal was widely attributed to “holes in the state’s forensic case,” including novel expert evidence that the defense condemned as “junk science.”

Eikelenboom was one of several experts who testified for the defense. Eikelenboom explained that a method could have been used in an attempt to create a DNA profile of the killer, despite the difficulty of recovering DNA from duct tape after the tape had been exposed to water for several months. The implication of Eikelenboom’s testimony was that the police and prosecutors did not do all they could have done to find or rule out the presence of Casey Anthony’s DNA on the duct tape.

Eikelenboom was also a key witness in the Tim Masters trial. Colorado police detectives clearly botched the investigation of Peggy Hettrick’s abduction and murder. The police destroyed physical evidence that might have yielded forensic clues to the killer’s identity. Instead of conducting an impartial investigation, the police focused on proving the guilt of Masters, a 15-year-old boy who saw the body but had no motive to commit the murder.

Twelve years after Hettrick’s death, Masters was convicted of her murder, largely on the basis of a psychologist’s expert opinion that Masters’ artwork was proof of his guilt. Twenty years later, Richard Eikelenboom and his wife, working from their lab in the Netherlands, were able to create a DNA profile from skin they discovered in the lining of the victim’s panties. The DNA could not have come from Masters. Combined with new evidence that had been withheld from the defense during Masters’ trial, Eikelenboom’s analysis made a convincing case of Masters’ innocence. The prosecution eventually conceded that Masters should be freed from prison.

The Court’s Ruling in the Abraha Trial

Eikelenboom’s most recent case involved a sexual assault accusation against Maicle Abraha. Eikelenboom was asked to testify as a defense expert at Abraha’s trial in Denver District Court. The prosecution objected to Eikelenboom’s qualifications. According to prosecutors, the court found that Eikelenboom committed “fundamental DNA analysis errors by not following scientific standards in the DNA field.”

A statement released by the Denver District Attorney’s Office claimed that Eikelenboom admitted during cross-examination that he “had no direct DNA extraction or analysis experience, that he operates a lab that has not been accredited, that he personally failed his basic proficiency tests in 2011 and 2012, and admitted that he was ‘self-trained’ in running DNA profiles.” A transcript of the court’s ruling, however, offers scant support for those claims.

Rejecting both the Frye and Daubert standards of expert testimony admissibility, the Colorado Supreme Court has instructed judges to focus on the reliability and relevance of proposed expert testimony. How the judge applied that standard to Eikelenboom’s testimony is unclear. The transcript reveals that the judge did not explain his determination that Eikelenboom was not qualified to testify.

Eikelenboom’s Response

Eikelenboom calls the District Attorney’s statement “completely unfounded.” He contends that prosecutors were “lying when they say I don’t do my own DNA work.”

Eikelenberg complained that the prosecutor did not let him finish his answers and that the judge was confused. Eikelenboom told the press that he has been accredited by the Dutch National Accreditation Council for years. He also said that he was just accredited by the American Society of Crime Lab Directors (ASCLD), although he received that accreditation after he testified.

Eikelenboom theorized that the Denver prosecutors wanted to discredit him in retaliation for work that exposed Tim Masters’ wrongful conviction. An attorney who used Eikelenboom’s expert opinions to overturn the wrongful conviction of David Camm notes that Eikelenboom’s testimony was more nuanced than the prosecutor’s statement reveals. The attorney suggests “that the Denver prosecutor, having obtained a favorable ruling under Colorado law, now seeks to demean Richard nationally.”

Eikelenberg’s Qualifications

Eikelenberg testified as an expert 19 times in the United States and 30 times in Holland before he was called to testify in the Denver case. Every court in which he testified determined that he was qualified to render expert opinions. He said that he has worked with DNA for 20 years.

The prosecution’s claim that Eikelenberg “had no direct DNA extraction or analysis experience” is apparently based on his testimony that he did not do extraction or analysis while he was working for the national lab in the Netherlands prior to 2005. He testified, however, that his job as a reporting officer involved examining the results prepared by lab analysts and deciding whether the results of a DNA profile “matched” the profile of a criminal suspect. He also testified that labs in Holland commonly separate the work done by analysts from the work done by reporting officers, but that reporting officers need to be qualified as analysts in order to do their jobs. Finally, he testified that he began doing his own extraction and analysis after starting his own company in 2005. None of that testimony was disputed.

Eikelenberg testified that his current lab has three DNA scientists and two more in training. He also testified that a senior scientist validates all of the lab results. Eikelenberg denied that he failed any proficiency tests and the prosecutor presented no evidence to challenge that denial. Eikelenberg testified that the lab was ISO accredited and that ASCLD accreditation was pending, but he also testified that the DNA analysis was performed in his lab in the Netherlands, which was accredited by local authorities.

Nothing in the transcript remotely supports the prosecutor’s claim that Eikelenberg made “fundamental DNA analysis errors.” The prosecutor’s complaint that Eikelenberg was “self-trained” is a stretch (Eikelenberg testified that he was trained in Holland’s national lab), but given his years of experience in the field, the level of his training should go to the weight a jury would give to his opinion, not to the admissibility of that opinion.

Eikelenberg’s Future as an Expert Witness

It is odd that the testimony of an expert who was deemed to be qualified in a number of other cases was excluded in the Denver trial. Unfortunately, the reason for the judge’s ruling is far from clear. The exclusion of Eikelenberg’s expert testimony without explanation might furnish Abraha (whose trial ended in a conviction) with grounds for appeal.

The judge’s ruling in the Denver case may be an aberration, or it may give prosecutors a roadmap for excluding Eikelenboom from testifying as an expert in future cases. No suggestion has been made that Eikelenboom’s testimony in past cases was unreliable, and in some of those cases, the prosecution conceded that his opinions established that an innocent defendant had been convicted. It seems likely, therefore, that Eikelenboom will be allowed to testify as an expert in future cases, but only if attorneys take care to make a clear record of his qualifications to testify as an expert witness.