Due to the new rules governing the admissibility of scientific and other technical disciplines that require expert witness testimony, the fingerprint examiner must be able to articulate on the witness stand how fingerprint evidence satisfies the Daubert factors. Presented below are some of the recent court cases regarding the admissibility of Fingerprint Evidence.
Defendant Donald Cole "Cole” is charged with attempted murder first degree, robbery first degree, burglary first degree, assault first degree, carrying a concealed deadly weapon and possession of a firearm during the commission of a felony.
I. FACTUAL BACKGROUND
On or about the 22nd day of August, 2001, it is alleged that Donald Cole entered a dwelling, at night, intending to commit the crime of robbery therein. It is further alleged that while in the dwelling, either Cole, his companion, or both of them shot a man and assaulted one woman.
D.R.E., Rule 702 is intended to track the F.R.E., Rule 702. If testimony will "assist the trier of fact to understand the evidence or to determine a fact in issue" a witness may testify as an expert based on grounds ranging from education to experiences. A trial judge has the responsibility of determining whether the expert testimony meets those requirements. In addition, the trial judge has broad latitude in determining whether expert testimony is reliable. A judge must determine whether the expert's testimony is l) reliable and 2) relevant to the issue. The judicial "gatekeeping" role first discussed in Daubert v. Merrell Dow Pharmaceuticals, Inc., has since been recognized as the guideline for admitting expert testimony in a given case. Kumho Tire5 expanded the realm of Daubert to include expert testimony that was not scientifically based. In Kumho Tire the court decided that the purpose of Daubert was to ensure that the expert witness' testimony was reliable whether based on scientific, or non-scientific experiences. In Daubert, the United States Supreme Court laid out general observations, but not a definitive checklist in order to determine whether expert evidence is reliable.
Those observations include 1) whether it can be (and has been) tested; 2) whether the theory or technique has been subjected to peer review and publication 3) whether there is a known or potential rate of error and the existence and maintenance of standards controlling the technique's operation; and 4) whether the theory or technique has been met with general acceptance in its scientific community. In terms of the first factor Daubert suggests a trial court should consider, fingerprint analysis is a theory that can be and has been tested. The existence of numerous studies supports the conclusion that fingerprints are unique. Also, fingerprint analysis has been subjected to, substantial peer review and publication. Through peer review, cross-examination and professional training, peers have the opportunity to examine fingerprint analysis and establish relevant standards. In terms of the third Daubert factor, the error rate in identifying latent fingerprints is extremely low. Also, an examiner's opinion can be tested by having another qualified technician compare the same prints. In that way, the potential for human errors can be prevented. The fourth Daubert factor is satisfied by the fact that fingerprint analysis has been accepted in the judicial community for close to 100 years as an approved technique. In sum, fingerprint analysis has been tested and proven to be a reliable science-over decades for judicial purposes. Technicians in the area use established principles and scientific methods approved in their field. No one has yet to find two identical fingerprints in almost 100 years. The reliability of latent fingerprint analysis is substantiated by its ability to meet the suggested factors set forth in Daubert.
For the above reasons, defendant's motion for suppression of evidence is DENIED.
IT IS SO ORDERED,
The Honorable Richard S. Gebelein
State of Delaware vs. Donald Cole
ID# 0110006694, June 26, 2002
In 1993, The United States Supreme Court ruled in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, that the trial judge was the gatekeeper to prevent junk science from entering the courtroom. Because of that landmark case, the trial judge would now use four factors to determine if evidence was reliable and scientifically valid. The Daubert factors include; testing and validation, peer review, error rate, and acceptance in the relevant scientific community. This was a major change from the previous standard, Frye. Frye v. United States 293 F. 1013, 1014, D.C.Cir. 1923, allowed scientific evidence, if it had gained general acceptance in the particular field.
Daubert only applies in Federal Courts and certain state courts, which are using the same standards. Currently there are approximately thirty states that apply the Daubert standards to scientific evidence.
Daubert has resulted in new challenges as to the scientific validity of fingerprint evidence. The first Daubert hearing challenging fingerprint identification occurred in 1999, in U.S. v. Bryon Mitchell, Criminal Action No. 96-407, U.S. District Court for the Eastern District of Pennsylvania. In the motion hearing to suppress the fingerprint evidence, a number of defense witnesses, none trained as fingerprint examiners, testified to the unreliability of identifying partial latent prints found at crime scenes. However, none of the defense experts were allowed to testify before the jury during the actual trial due to Judge J. Curtis Joyner's ruling that the fingerprint evidence satisfied the Daubert requirements. The defense motion to exclude the fingerprint evidence in the armored car robbery was denied. This decision was upheld at the appellate level.
In the second Daubert hearing on fingerprint evidence which also occurred in 1999, this author was the fingerprint expert for the defense during a civil rights lawsuit, Anthony Golden v. County of Los Angeles, Case No. CV 97-6140 CAS., U.S. District Court for the Central District of California. Anthony Golden was shot to death by deputy sheriffs. Prints of Golden were found on a handgun and on the inside magazine found at the scene. Plantiffs alleged that the gun was not Golden's and had been planted. The motion to exclude the fingerprint evidence mirrored the motions during U.S. v. Bryon Mitchell. One of the allegations used to try to discredit the fingerprint evidence was that there was no national standard for identification and therefore the fingerprint identification was not reliable. Responding to the allegation on the witness stand, this author stated that standards developed by the Scientific Working Group for Friction Ridge, Analysis, Standards and Technology (SWGFAST), a group formed and hosted by the FBI, were followed. The standards followed by the Los Angeles Sheriffs Department included SWGFAST's training standards for latent print examiners and their quality assurance guidelines which included verification of identifications. Judge Snyder denied the motion to exclude the fingerprint evidence.
As of this writing, there have now been close to forty Daubert challenges to fingerprint identification, all unsuccessful.
The fingerprint examiner must be aware of the Daubert factors to gain acceptance of scientific evidence, i.e.; testing and validation, peer review, error rate, and acceptance in the relevant scientific community. In states that do not use Daubert as a guideline for scientific evidence, such as in California, one should not assume there will not be attacks, as there have been and they will continue. Rather than attack the science of fingerprint identification, there will be attacks on the individual examiner and the procedures the examiner followed. There are now seminars on how to attack fingerprint evidence and web sites with information on Daubert challenges.
Fingerprint evidence easily satisfies the Daubert factors. There have been hundreds of years of scientific research and testing to validate fingerprint identification (review the section on the historic overview). Peer review of the science has taken place and on an individual case-by-case basis, peer review takes place in the form of verification. Error rate can be of two forms: Error rate for the science and the individual examiner error rate. As proven through hundreds of years of research, all areas of friction skin are unique and never duplicated; therefore, the possibility of a duplicate fingerprint is zero. Therefore, the error rate for the science is zero. Suggestions on how to respond to examiner error rates are in the testimony section. There is no legitimate question a well trained, prepared fingerprint examiner should fear.
Graham C. Rogers was convicted by jury of one count of submitting a false claim to the United States Department of Treasury, in violation of 18 U.S.C. 287 (1994). The district court sentenced him to five years' probation. On appeal, Rogers argues that the district court erred in admitting testimony from two Secret Service agents that a latent print lifted off a check Rogers claimed he never received matched an exemplar obtained from him. Both agents were properly qualified as experts in the field of latent fingerprint examination. The district court overruled Rogers' objection at trial, finding that the fingerprint analysis met the standards of reliability established by Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rogers argues that the agents' testimony should have been suppressed because it was based upon unreliable principles and methods and thus cannot comply with Fed. R. Evid. 702. * We review the district court's decision to admit expert testimony for abuse of discretion. See Benedi v. McNeil-PPC, Inc., 66 F.3d 1378, 1385 (4th Cir. 1995). In Daubert, the Supreme Court announced five factors for evaluating the relevancy and reliability of expert testimony as follows: whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether there is a high known or potential rate or error; whether there are standards controlling the technique's operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community. *The rule permits an expert witness "qualified by knowledge, skill, experience, training, or education" to testify when specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Daubert, 509 U.S. at 592-94. However, the Daubert Court also emphasized that this inquiry should be flexible. See id. at 594. See also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141-42 (concluding that the testing of reliability should be flexible and the five factors delineated in Daubert neither necessarily nor exclusively apply to every expert). We find that the district court did not abuse its discretion by admitting the challenged testimony. While Rogers contends the underlying theory of fingerprinting evidence, that all fingerprints are unique, is untested and unproven, the Government's expert testified to the existence of numerous studies supporting this conclusion. Further, Rogers cites no evidence suggesting that fingerprint evidence is unreliable. To the extent that fingerprint analysis involves some measure of subjective interpretation by the examiner, the possibility of error was mitigated in this case by having two experts independently review the evidence. In addition, although Rogers also claims no uniform standards exist to pinpoint exactly when a fingerprint match can be declared, such standards do exist through professional training, peer review, presentation of conflicting evidence and double checking, which is standard operating procedure with latent print examiners. See United States v. Havvard, 117 F. supp. 2d 848, 854, aff'd, 260 F.3d 597 (7thCir. 2001). Moreover, both agents in this case found seven corresponding characteristics between the two thumb print samples, which is adequate to meet modern criteria for a definitive match. Finally, virtually every circuit and district court, both before and after Daubert, have a longstanding tradition of allowing fingerprint examiners to state their opinion and conclusions, subject to rigorous cross examination. Many courts have even refused to hold an evidentiary hearing for such an inquiry, finding such testimony scientifically reliable. See, e.g., United States v. Havvard, 260 F.3d 597 (7th Cir.2001); United States v. Sherwood, 98 F.3d 402 (9th Cir. 1996);
United States v. Reaux, 2001 WL 883221 (E.D. La. July 13, 2001) (relying on United States v. Havvard, 260 F.3d 597 (7th Cir.
2001)); United States v. Joseph, 2001 WL 515213, *1 (E.D. La. May 14,2001) (holding that an evidentiary hearing was not necessary because "fingerprint analysis has been tested and proven to be a reliable science over decades of use for judicial purposes"); United States v. Martinez-Cintron, 136 F. supp. 2d 17 (D.P.R. 2001).
Moreover, even assuming a Dauber error does exist, we agree with the Government that any such error is harmless because, independent of the fingerprint evidence, the evidence supporting Rogers' conviction is overwhelming in this case. The Government presented two eyewitness identifications from employees at the pawn shop where Rogers cashed the check Both clearly identified Rogers as being the customer who cashed the check Both employees also testified to details of Rogers' life that they could only have known had they encountered him. Furthermore, the Government presented evidence that Rogers had no money in his bank account, yet bought a car with $4000 in cash only days after the check had been cashed at the pawn shop. We therefore conclude that even if the district court erred by allowing the fingerprint evidence to be heard, such error was harmless under Fed. R. Crim. P. 52(a). Accordingly, the judgment of the district court is affirmed. We deny Rogers' motion to file a pro se formal supplemental brief. We dispense with oral argument, because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
United States District Court of Appeals 4th District
United States v. Rogers, No. 01-4455 (4th Cir. Dec. 20, 2001) (unpublished)
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