By: Jenni Lyman
The Netflix series, Making a Murderer, influenced 275,000 viewers to demand President Obama to overturn Steven Avery’s conviction. Avery’s supporters believe he was framed by law enforcement and is innocent in the murder of Teresa Halbach.
Avery’s blood was found on the inside of Halbach’s Toyota. The defense’s theory is that police gathered the sample from a vial in Avery’s criminal file and subsequently planted the blood. Armchair detectives cringed imagining the slimy detectives poking the vial to extract Avery’s blood.
Avery’s defense team is comprised of two attorneys, Dean Strang and Jerry Buting. Strang believes the critical point in Avery’s trial was the FBI test that discredited the linchpin of their argument–Avery was framed. In Strang’s opinion, this fateful test was the turning point that shifted the proceedings in favor of the prosecution.
What is this test and has the technology improved since Avery’s trial? In sum, EDTA is the preservative the FBI tests for to see if the anticoagulant used for storing blood in vials is detected in the blood sample. Unfortunately for Avery, the test came back negative for any trace of EDTA. If the test came back positive it would prove the defense’s theory that the blood was planted in Halbach’s Toyota from the unassuming vial that sat dormant in Avery’s criminal file.
Speculation proposes the chemical was too diluted to be detected. As for improved technology, more experiments need to be conducted that replicate crime scene conditions to put the test to the test.
In the meantime, the defense could appeal on the [somewhat shocking] fact that at the time of Avery’s trial, Wisconsin state law did not require a Daubert test to admit expert testimony. The Daubert test holds expert testimony to a higher level of scrutiny. Here, the EDTA test had not been done since the O.J. Simpson trial. The arcane test’s bleak track record suggests it would not be admissible under a strict scrutiny test.
In addition to the lack of the Daubert test and equally abhorrent is the fact there was no pre-trial Daubert hearing. The bonus of a Daubert hearing is that it is conducted outside of the jury’s presence. Here, the jury heard the damning evidence surrounding the test. So, the fetching defense was forced to scramble and convince the jury that the FBI’s sloppy work was not reliable. Moreover, it would be difficult to find an apt limiting instruction to cure such a jury.
For now, Avery remains behind bars while viewers await an EDTA test fit to render justice.
 See Edward Helmore, Making a Murderer Spurs 275,000 Viewers to Demand Pardon for Central Character, Guardian (Jan. 9, 11:48 AM), http://www.theguardian.com/world/2016/jan/09/netxflix-murder-whoddunit-petition (noting the White House later released a letter stating action must be done at state-level).
 Making a Murderer (Netflix television series Dec. 2015).
 See Jethro Nededog, The Moment When Everything Turned Against Steven Avery in the ‘Making a Murderer’ Trial, Bus. Insider (Jan. 7, 2016, 3:11 PM), http://www.businessinsider.com/making-a-murderer-edta-test-blood-test-2016-1.
 Helmore, supra note 4.
 See Jen Yamato, ‘Making a Murderer’ Defense Attorney Dean Strang: We May Represent Steven Aver Again, Daily Beast (Jan. 7, 2016, 3:14AM), http://www.thedailybeast.com/articles/2016/01/07/making-a-murderer-defense-attorney-dean-strang-we-may-represent-steven-avery-again.html.
 Erika Engelhaupt, Are These Crime Drama Clues Fact or Fiction?, Nat’l Geographic, (Jan. 26, 2016), http://phenomena.nationalgeographic.com/2016/.
 Yamato, supra note 10.
 See also Fed. R. Evid. 702.
 See id.
 Yamato, supra note 10.
 See also Fed. R. Evid. 105.
Photo Source: http://static.independent.co.uk/s3fs-public/styles/story_large/public/thumbnails/image/2016/01/01/14/Screen%20Shot%202016-01-01%20at%2014.48.45.jpg