2010 Final Prince Record

TWENTY-FIFTH ANNUAL
DEAN JEROME PRINCE MEMORIAL EVIDENCE COMPETITION
No. 09-5434
______________________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
______________________________________________________________________________
UNITED STATES OF AMERICA,
Petitioner,
-againstMICHAEL MORRISON,
Respondent.
______________________________________________________________________________
ON WRIT OF CERTIORARI TO THE
COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT
______________________________________________________________________________
RECORD ON APPEAL
TABLE OF CONTENTS
INDICTMENT...............................................................................................................................3
MOTION IN LIMINE...................................................................................................................7
Day 1: Daubert Hearing on Latent Fingerprints..................................................................8
Edited Testimony from United States v. Baines......................................................9
Direct Exam of Prosecution Expert, Shannon Ashford .........................................42
Cross Exam of Prosecution Expert, Shannon Ashford..........................................46
Direct Exam of Defense Expert, Anthony Diaz ....................................................50
Cross Exam of Defense Expert, Anthony Diaz .....................................................53
Direct Exam of Defense Expert, Nikhil Singh ......................................................54
Cross Exam of Defense Expert, Nikhil Singh .......................................................60
Day 2: Hearing on Confrontation Issue .............................................................................62
Decision from Bench on Confrontation Issue ...................................................................67
Opinion and Order on Latent Fingerprint Evidence ..........................................................70
Court’s Exhibits .................................................................................................................95
Latent Fingerprint ..................................................................................................95
Defendant’s Rolled Fingerprint .............................................................................95
Boerum General Health Code, Tit. 6, §§ 721, 725, and 730 .................................96
Autopsy Report......................................................................................................98
CIRCUIT COURT OPINION ..................................................................................................109
Majority ...........................................................................................................................109
Dissent .............................................................................................................................119
CERTIFIED QUESTIONS.......................................................................................................132
2
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF BOERUM
------------------------------------------------------------X
UNITED STATES OF AMERICA
07-CR-335892 (NJT)
—against—
INDICTMENT
MICHAEL MORRISON,
Defendant.
------------------------------------------------------------X
The Grand Jury Charges:
BACKGROUND:
RELEVANT PERSONS AND EVENTS
1. At all times relevant to this indictment, Michael Morrison (“Defendant”) was a licensed physician. In
1967, after receiving a PhD in pharmaceutical sciences and an M.D. from Boerum College of
Medicine, Defendant began serving in the United States Army’s medical research division. From
1967 until his discharge in 1971, Defendant worked on a top-secret military project to develop a
combination of commonly available substances that, if given in particular proportions, would cause
death but would not raise suspicion of wrongdoing.
2. One substance the team researched was the combination of alphacol and cocaine, which was labeled
“E2379.” While it does not cause immediate death, E2379 causes elevated heart rates, which, if not
properly monitored, can lead to sudden death. However, E2379 was dropped from the research
program because it also induces acute behavioral changes such as erratic and inappropriate talking and
groaning, excessive sweating, and dilated pupils, all of which make the presence of E2379 highly
noticeable and thus limit its potential as a covert weapon. Further, E2379 induces a temporary,
euphoric high, making it highly addictive.
3. Roxy Starr (“Starr”) was a hugely popular and influential singer, songwriter, and international icon,
commonly known as “The Queen of Rock ‘n’ Roll.” Throughout her career in the late 1970s and
1980s, she set records for concert attendance, television ratings, and record sales and has been
inducted into multiple music halls of fame, including the Rock and Roll Hall of Fame, the Country
Music Hall of Fame, the Blues Hall of Fame, and the Songwriters Hall of Fame. Starr recorded and
released 10 albums, each of which sold over 5 million copies worldwide, in a span of 6 years. She
released many popular songs and had 27 #1 hits including “I’m on a Yacht,” “Don’t Cast Away My
Love,” “Boathouse Rock,” “Heartburn Motel,” “Put Out My Fire,” “All Along the Lighthouse,” “My
Degeneration,” “Why Don’t Smart People Fall in Love?” and “Me and Captain McGee.”
4. Beginning around 1983, Starr became increasingly eccentric and refused to leave her yacht, the SS
Rock Starr, which was owned by Starr, a citizen of the United States. In 1984, Starr hired Defendant
as her personal physician, which required Defendant to live on the SS Rock Starr full-time. Defendant
3
earned $50,000 weekly. In early 1986, Starr threatened to replace Defendant with another physician.
At that time, Defendant had significant personal debts arising from many failed real estate ventures. In
order to stay in her good graces and maintain his very generous salary, Defendant introduced Starr to
E2379. Starr quickly became addicted to the euphoric high it induced. Defendant did not always
closely monitor her use of E2379.
5. In early 1987, because Starr refused to leave her yacht, her management team arranged for a world
concert tour of 15 of the world’s largest ports, which would have allowed Starr to perform from the SS
Rock Starr. The first stop on the tour was the port of Boerum City.
COMMON ALLEGATIONS
6. On May 15, 1987, during the first week of the concert tour, the SS Rock Starr put out a distress call to
Boerum Hospital, requesting a helicopter transfer because Starr had an elevated heart rate and
breathing difficulties and so was thought to be having a heart attack. At this time, the SS Rock Starr
was approximately 55 miles away from the Boerum coast line. When the helicopter arrived,
Defendant advised the paramedics of Starr’s symptoms and medical history, but did not mention her
intake of E2379. Upon losing consciousness, Starr was airlifted from the SS Rock Starr to Boerum
Hospital, where she was declared dead at 12:23 PM. The death certificate indicated that Starr was
already dead by the time the helicopter arrived at the yacht.
7. Martina Phelps (“Phelps”), a licensed medical examiner employed by the Boerum Office of the Chief
Medical Examiner, performed an autopsy. In her report, she noted that Starr’s heart, brain, lungs, and
liver were enlarged. According to the report, the descending coronary artery was narrowed. Phelps
also noted the presence of alphacol and cocaine in Starr’s bloodstream, as well as an undigested pill in
Starr’s stomach. The pill was analyzed and found to contain alphacol and cocaine in the same ratio as
E2379. There was no mention of E2379 in the autopsy report, although the chemical composition of
the capsule was recorded. Phelps ultimately concluded that the cause of death was arteriosclerotic
heart disease.
8. On July 4, 1987, in keeping with Starr’s last will and testament, Starr’s remains were set out to sea in a
small, wooden ship and set on fire in the tradition of a Viking funeral pyre. In addition, the SS Rock
Starr was permanently anchored at Boerum Harbor as a museum and memorial dedicated to the life
and legacy of Starr. The museum is owned and operated by the Starr Foundation, a for-profit
corporation dedicated to the life and musical legacy of Roxy Starr. The interior of the SS Rock Starr
was preserved exactly as it was at the time of her death. All of the rooms and cabins, including the
private examination area where Starr had all of her interactions with Defendant, were sealed off with
plexiglass so that the public could see how Starr lived without risk of theft or alteration.
9. In June 2008, ForeverRoxyStarr.com, a website dedicated to Starr, obtained and published Starr’s
autopsy report, including the toxicology report. After reading the autopsy report, Janice Monroe, a
blogger writing on the weblog hosted by ForeverRoxyStarr.com, made plausible claims that Starr’s
symptoms were caused by a drug designed to mimic the symptoms of a heart attack, developed by the
military for clandestine use. ForeverRoxyStarr subsequently obtained information about the E2379
project pursuant to a FOIA request.
10. Responding to calls for a new investigation of Starr’s death, FBI agents discovered that Defendant had
been involved in the military program that developed E2379 and that he had purchased large amounts
of alphacol since 1972.
4
11. On September 8, 2008, FBI agents searched the SS Rock Starr. During the search of Starr’s medicine
cabinet, agents discovered an unlabeled vial containing four unmarked pills in A single latent
fingerprint was lifted from the cap of the vial and was analyzed and identified as belonging to
Defendant. A chemical analysis of the four pill capsules revealed a combination of alphacol and
cocaine.
12. Recent research concerning E2379 confirms that ingestion of the drug results in the conditions
indicated in Starr’s autopsy report.
COUNT ONE
(Second Degree Murder)
13. The allegations contained in paragraphs 1 through 12 are realleged and incorporated as if set forth
fully in this paragraph.
14. From in or about March 1986 through May 1987, while on a vessel owned by Roxy Starr, a citizen of
the United States of America, Defendant did knowingly administer a combination of substances which
he knew to be potentially lethal to Roxy Starr, a patient under Defendant’s advisement and care.
15. At all times relevant to this indictment, the SS Rock Starr was on the high seas, outside of the
territorial seas, twelve miles beyond the low-water mark of the coastline of any State within the United
States.
16. On or about May 15, 1987, Defendant did unlawfully kill Roxy Starr, with malice aforethought, by
knowingly administering to Starr a combination of substances which Defendant was aware created a
serious risk of death or serious bodily harm.
17. In administering such substances to Roxy Starr, Defendant did act in a manner which was reckless,
wanton, and a gross deviation from a reasonable standard of care, and did reveal a depraved heart that
is without regard to the life and safety of others.
(Title 18, United States Code, Sections 7 and 1111)
COUNT TWO
(Involuntary Manslaughter)
18. The allegations contained in paragraphs 1 through 12 are realleged and incorporated as if set forth
fully in this paragraph.
19. From in or about March 1986 through May 1987, while on a vessel owned by Roxy Starr, a citizen of
the United States of America, Defendant did knowingly administer a combination of substances which
5
Defendant knew to be potentially lethal to Roxy Starr, a patient under Defendant’s advisement and
care.
20. At all times relevant to this indictment, the SS Rock Starr was on the high seas, outside of the
territorial seas, twelve miles beyond the low-water mark of the coastline of any State within the United
States.
21. On or about May 15, 1987, Defendant did unlawfully and unintentionally kill Roxy Starr, without
malice, by acting with gross negligence and without due caution in knowingly administering a
combination of substances which Defendant knew was a threat to the life of Starr, and omitting to
adequately monitor such administration.
22. In administering such substances to Roxy Starr and omitting to monitor such administration,
Defendant did act with a wanton or reckless disregard for human life in that Defendant did have actual
knowledge that his conduct or omission was a threat to the life of Starr, or could reasonably foresee
that his conduct or omissions created peril to Starr.
(Title 18, United States Code, Sections 7 and 1112)
DATED: December 16, 2008
A TRUE BILL
____/s/ Mark Burakowski_________
Foreperson
RICHARD A. MASSEY
United States Attorney
______/s/ Michelle Davis____________
Assistant United States Attorney
Criminal Division
6
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF BOERUM
------------------------------------------------------X
UNITED STATES OF AMERICA
08-CR-335892 (NJT)
—against—
MICHAEL MORRISON,
Defendant.
------------------------------------------------------X
August 3, 2009
TRANSCRIPT OF HEARING ON MOTION IN LIMINE BEFORE THE
HONORABLE NATHAN TUSAMBE, CHIEF JUDGE,
UNITED STATES DISTRICT COURT
APPEARANCES:
For Government
Assistant United States Attorney, Michelle Davis
386 Federal Plaza
Yorkville, Boerum 11201
For Defendant
Hart, Gilroy & Klein, LLP
Joseph M. Gilroy
935 Seventh Avenue
Green Hook, Boerum 11203
Court Reporter
Patricia Atkins
368 Federal Plaza
Yorkville, Boerum 11201
7
*** [DAY 1 OF HEARING] ***
1
CLERK: United States v. Michael Morrison. Please state your appearances for the record.
2
ASSISTANT U.S. ATTORNEY: Michelle Davis for the Government.
3
DEFENSE COUNSEL: Joseph Gilroy of Hart, Gilroy & Klein, LLP, for the defendant Michael
4
Morrison.
5
COURT: I understand we are here today on Defendant’s motion in limine. Two motions to
6
preclude have been made, first to preclude the Government’s expert testimony on latent
7
fingerprint evidence, and second to preclude the 1987 autopsy report prepared by now deceased
8
Medical Examiner, Martina Phelps. Is this correct?
9
DEFENSE COUNSEL: Yes.
10
ASSISTANT U.S. ATTORNEY: That is correct, your Honor.
11
COURT: As was previously decided, we are going to start today with a Daubert hearing on the
12
admissibility of the fingerprint evidence. As both parties stipulated, I will take judicial notice
13
that every person has a unique set of fingerprints. What this hearing is about today is whether or
14
not the theory and practice of identifying fingerprints from a crime scene satisfies Federal Rule
15
of Evidence 702 and the standards set forth by the Supreme Court in Daubert.
16
Both sides have witnesses that will be testifying today, and both parties are stipulating to
17
the expert status of all of today’s witnesses. Further, both parties have stipulated to the reliance
18
on an edited version of the expert testimony by Stephen Meagher at the Daubert hearing in
19
United States v. Baines, a copy of which has been provided to the court for purpose of inclusion
20
in the record. Is this all correct?
21
DEFENSE COUNSEL: Yes, Judge.
22
ASSISTANT U.S. ATTORNEY: Correct, your Honor.
23
COURT: Now as I understand it, although the stipulated testimony by Mr. Meagher has been
24
edited down for clarity and for our purposes today, it is still quite lengthy and it provides some
25
critical background and foundation on this issue. For these reasons, this testimony will be added
26
to the record first, before we hear live testimony from our other witnesses.
27
DEFENSE COUNSEL: That is fine with me, your Honor.
28
ASSISTANT U.S. ATTORNEY: Yes, your Honor, that works well.
29
COURT: Okay, then, let’s get started with the Daubert hearing. Agent Meagher’s testimony is
30
hereby deemed a part of the record of these proceedings.
8
Agent Meagher’s Edited Testimony from United States v. Baines
1
DIRECT EXAMINATION BY ASSISTANT U.S. ATTORNEY:
2
Q.
Would you please state your name?
3
A.
My name is Stephen B. Meagher, last name spelled M-e-a-g-h-e-r.
4
Q.
And how are you employed?
5
A.
I’m employed as a fingerprint specialist with the Federal Bureau of Investigation.
6
Q.
How long have you been with the FBI?
7
A.
35 years.
8
Q.
And generally, describe for us your background and training regarding fingerprint
9
identification.
10
A.
My training as a fingerprint examiner began in 1972, as a fingerprint 10-print examiner,
11
where I learned how to classify, sequence, search, identify, and verify 10-print fingerprint
12
records. 10-print fingerprint records refer to the fingerprint cards of an individual when they are
13
arrested, where all 10 fingers are recorded as a matter of record, and searched through the files in
14
order to determine whether there is a prior arrest record existing.
15
That formal classification and training lasted about three months, followed by on-the-job
16
training, as well as working my way through rather complex assignments associated with the 10-
17
print examination process. After a minimum of five years experience associated with the 10-print
18
examination, I was afforded the opportunity to be tested to become a latent print examiner. Upon
19
completion of that testing I then was required to go through one year of formal education and
20
training with regard to latent prints—both processing of evidence for the development of latent
21
prints, as well as the examination using the analysis comparison and comparison methodology.
22
As a result of my successful completion of that program, I was formally assigned to perform
23
casework, where I did such for about 20 years.
24
I have performed examinations in approximately 1,000 or so cases, have literally made millions
25
of comparisons, thousands of identifications, and performed verification practices, as well. I have
26
also been promoted to supervisory positions, as well as management positions. I have been a lead
27
examiner associated with the forensic examination of deceased individuals associated with mass
28
disasters, and I have been involved in response teams to major disaster incidents such as 9/11,
29
airplane crashes, hurricanes and the like.
9
1
***
2
I also continue to receive continuing education, and I have presented multiple lectures and papers
3
with regard to fingerprint identification.
4
Q.
Have you been an instructor in courses regarding fingerprint identification?
5
A.
Yes, I have. I have instructed at both the FBI academy, as well as for our new physical
6
scientist trainees, to become latent print examiners. I have instructed at forensic conferences, as
7
well as what we consider to be road schools, and that is where we go out to a law enforcement
8
community, teach fellow latent print examiners advanced techniques and aspects of latent print
9
examination for a 40-hour school. * * *
10
Q.
And lastly, have you previously testified as an expert with regard to fingerprint
11
identification?
12
A.
Yes. I have.
13
Q.
Approximately how many times?
14
A.
Approximately 80 times, in both state and federal court. And an additional 18 or 19
15
testimonies specifically regarding the admissibility of fingerprints in a Daubert hearing like this.
16
Q.
17
first, please tell the Court, what is a fingerprint?
18
A.
19
side of the hand for each of the fingers. * * * [I]f you can look closely [at a hand], you can
20
actually see raised portions of skin which exist on the underside of that finger. * * *
21
The term fingerprint refers to the raised portions of skin which can be transferred to an object
22
when it is touched, or intentionally recorded on a known fingerprint card. The term also reflects
23
the underlying scientific basis associated with the uniqueness and persistency of those ridges
24
which enable us to reliably make fingerprint identification of an individual. * * *
25
Q.
Are there basic fingerprint patterns?
26
A.
Yes. There are three standard basic pattern types * * * which are the most common types
27
that appear, on just the end joint of the finger, noting full well that the entire finger also contains
28
ridge detail on the second and third joints of the finger.
29
* * * Some fingerprints are referred to as an arch pattern. By an arched pattern, it simply means
30
that the ridges will simply appear from one side of the finger, have a slight arcing formation and
All right. Turning your attention now to the subject matter of fingerprint identification,
Fingerprint refers to the term used to describe the ridged skin which appears on the palmar
10
1
go across the entire finger to the other side, with no particular formation of ridges outside of just
2
that arcing pattern.
3
Another type of fingerprint is referred to as a loop, and this means that the ridges simply come in
4
from one side of the finger, have a looping formation and come back out the same side, from
5
which they enter. A loop pattern will also have what is referred to as a delta formation, which is
6
where three series of ridge flows come together and form the delta formation or a tri-radius.
7
The third pattern is a whorl pattern where the ridges are of a circular nature, and a whorl pattern
8
will have two or more delta formations.
9
It is these three basic pattern types which appear on the underside of the finger for the end joint.
10
The arch pattern basically makes up about five percent of the population of fingers. The loop is
11
about 60 to 65 percent and the whorl is about 30 to 35 percent of the world’s population of
12
fingers. For each of these three pattern types, there are sub-classifications which can be further
13
distinguished and can be used for refining classification of a particular fingerprint. * * *
14
Q.
What are latent prints?
15
A.
The term latent print refers to the fact that when you touch an object, you can transfer the
16
outline or the representation of these friction ridges onto that object. Usually, this transfer of that
17
ridge detail is through the perspiration that is exuded through the sweat pores on the ridges of
18
your fingers, and it leaves that outline of your fingerprint on that object in your perspiration.
19
Because it’s perspiration, it’s generally not visible, and requires some type of developed
20
technique.
21
The term latent itself, actually means hidden, or not visible. And therefore, it requires a
22
processing technique to make it visible. The latent print community uses a wide variety of
23
different processing techniques to make these prints visible, and to capture them, and preserve
24
them for comparison purposes with a known exemplar.
25
A latent can have a cracked surface underlying it, and have a lot of striations associated with the
26
underlaying of the substrate of the item itself. * * * An impression can have two fingerprints, one
27
on top of the other, which also requires some examination, skill, and ability to be able to
28
differentiate the areas that are overlapping. * * *
29
Q.
What is a known print?
30
A.
A known print is the intentional recording of one’s fingerprints, * * * and it is the
31
intentional recording of those friction ridges, in a structured way, so that you have legible
11
1
fingerprint images to compare with any other images that need to be compared with that
2
particular person or individual.
3
Q.
And what is the standard information that is recorded on a 10-print fingerprint card?
4
A.
* * * We can break the fingerprint card down into three specific areas. At the top would be
5
the descriptive personal information about the individual whose fingerprints are on the card.
6
* * * The second portion of the fingerprint card is what is referred to as the rolled fingerprints,
7
and this is the intentional recording of each of the 10 fingers of a particular individual, and it’s
8
done in a particular sequence. * * * This is a standard format for recording fingerprints. * * *
9
The intent is to get all of the friction ridge skin recorded in a rolling motion, by taking each
10
finger, inking it, and rolling it across the fingerprint card from left to right, in an effort to try and
11
get all of the information contained in that fingerprint.
12
And finally, the third area on the fingerprint card is what is referred to as the plain impressions,
13
and this is a very important aspect of the fingerprint card because it’s a quality assurance
14
standard to ensure that the fingerprints that are recorded in the roll impressions are in the proper
15
sequence. * * * This allows an examiner to see that each finger that is recorded in the roll
16
impressions is, in fact, the same finger, which appears in the plain impressions, and ensures that
17
it is the same fingers of the same person. * * * It is through this practice of recording a standard
18
processing technique for the recording of known exemplars that allow us to associate the known
19
fingerprints with a specific individual.
20
Q.
21
account?
22
A.
23
when performing an examination. And these are simply referred to as level 1, level 2, and level 3
24
detail. * * *
25
The first level of detail is referred to as ridge flow. You could have whorl pattern, which I
26
described earlier as being circular. The circular motion, along with delta formations, * * * you
27
have certain information that allows the fingerprint expert to orient that fingerprint in its upright
28
position. And he also knows the classification of that particular print, and has a lot of information
29
about the general ridge flow. What is important to note, when you try to make this examination
30
at level 1 detail is what can you do, and what can you not do with that information. From a
31
perspective is can I individualize, using level 1 detail, the answer is no. * * *
When you examine an impression of friction ridges, what information are you taking into
There are three levels of detail which a fingerprint examiner must take into consideration
12
1
Q.
What does individualize mean?
2
A.
In terms of scientific process, it commonly means that I have made a fingerprint
3
identification. Well, the term identification and individualization, in a purely scientific sense are
4
significantly different terms. For example, we could sit here in the courtroom, and I can
5
positively identify a white male, but the question is, we could all look around the room and we
6
could all identify a different white male. But we would all be correct in making a positive
7
identification of a white male.
8
By individualization, what we mean is that you can identify a white male to the exclusion of any
9
other white male. So, it’s the second process, the exclusion of all other possible donors, that’s
10
important to understand. When we use the terms, in the fingerprint discipline, the term
11
fingerprint identification and individualization are synonymous. By that I mean, if we have made
12
a positive fingerprint identification, it is to the point of individualization, in that we have made
13
that identification to the exclusion of any other person. With that in mind, you cannot make that
14
statement of individualization just with level 1 detail.
15
However, in a scientific sense, you always have to recognize, when you can make an exclusion
16
decision, and that is just as important. Under certain circumstances, an exclusion decision can be
17
made with level 1 detail. For example, the latent print from a crime scene might look * * * to be
18
a whorl pattern. If I were to take a look at the known exemplar of a particular person, and that
19
person had all looping formations, I could exclude that person as having left that latent print at
20
the crime scene, because the basic pattern types are completely different, and you can exclude.
21
But you cannot individualize with level 1 alone. You need level 2 detail, and this is now the
22
ridge path of the individual ridges. You take a much closer look at some of the ridge detail that’s
23
in that fingerprint.
24
By simply picking a ridge, any ridge, and following the path of that ridge, you can begin to make
25
some observations about what occurs on those ridges. And through that process, you can find
26
certain features, which are referred to as ending ridges, * * *, which is where that orange line
27
overlapping the black ridge is separated into two ridges. And it is through these features that you
28
can identify their location, their type, their direction, and their relationship, and the absence of
29
characteristics of any of these ridge paths, which allow you to be able to individualize, at this
30
point.
13
1
So, it is the aggregate of level 1, along with the information contained in level 2, that you can
2
begin to individualize, or that you can individualize. And of course, you can also exclude, at this
3
level.
4
And finally, there is the third level of detail. And this is zooming in even closer to the individual
5
ridges which exist on the finger. Level 3 detail is getting out to the individual ridge itself, and
6
looking at the features which might exist on the ridge. For example, you can look for a sweat
7
pore which exists on that ridge, which exudes the perspiration which follows along the ridge, so
8
that when a finger touches an object, it is that perspiration which is transferred in that outline of
9
the finger on the object when it is touched. Other features, such as the difference in terms of the
10
size and shape of the ridges around each of the bifurcations, would allow you to be able to have
11
distinguishing information. And finally, there are obvious end shapes, which are of varying
12
differences along the ridge.
13
So, it is all the features of the individual ridge, along with the ridge paths, and along with the
14
ridge flow of all three levels of detail, that an examiner can individualize, as well as exclude.
15
Q.
16
basic factors that allow friction ridges to be used as a means of personal identification?
17
A.
18
persistence. And I’ve referred to those already in my testimony. But if we are to say that we can
19
individualize to the exclusion of all other individuals, then we have to be able to say that it’s not
20
just a fingerprint that is left on the crime scene evidence or the known exemplar on the
21
fingerprint card. What we have to have an understanding of is, does the human body itself create
22
friction ridges which are unique and persistent?
23
And by unique, what I am saying is that those ridges must be significantly different from any
24
other individual, and by persistent, I am saying that they must remain in that same unique
25
configuration throughout time. With regards to fingerprints and the individuality aspect of it for a
26
forensic examination, we know these friction ridges are created prior to birth, and remain
27
consistent throughout one’s entire lifetime—until decomposition of the skin after death.
28
Q.
29
of friction ridges?
30
A.
31
areas. The first one is, as I have already alluded to, is in terms of the biological sciences. The
Turning your attention now to the scientific basis for fingerprint identification, what are the
Well, there are two basic factors. The first one is uniqueness, and the second one is
Have there been any scientific studies that explain and test the uniqueness and persistence
Yes. There have been several studies, and those studies basically pertain in two significant
14
1
biological sciences of anatomy, embryology, and genetics are key factors in understanding the
2
uniqueness and persistence of friction ridge skin, which allow us to use them to make positive
3
identifications to the exclusion of any other individual. The other aspect is use of statistics and
4
probability models, which allow us to support the concept of uniqueness and fingerprints, and
5
support the aspect of being able to say the information that is reflected in the fingerprint can be
6
objectively assessed, to reach reliable conclusions.
7
Q.
8
and persistence of friction ridges.
9
A.
All right. Turning to the biological basis, please explain the biological basis for uniqueness
One can look to images that are captured of the development or the physiology of friction
10
ridge skin during gestation, * * * during the development of that child.
11
Start with volar pads. These volar pads, which appear on the end joints of the finger, lend
12
themselves towards the creation of whether you will have arch, loops or whorl patterns on the
13
end joints of your finger. * * * The bone structure inside the finger also plays a role in terms of
14
the influence of the type of the fingerprint, and the size and shape of that volar pad will also have
15
an influence. * * *
16
What has been studied and demonstrated, in terms of the creation of the uniqueness of
17
fingerprints, as well as the persistence, is the epidermis, or the epidermal layer of skin. The
18
multi-colored white, purple, bluish part below all of that area is referred to as the dermal layer of
19
skin. Those are the two primary layers of skin which exist. At about the 11th or 12th week of
20
gestation, these primary ridges, which are being pointed to here with the black arrow, will also
21
be attached to sweat glands, in a sweat duct. And these primary ridges will ultimately end up
22
being the ridges on the surface of the skin.
23
But you will notice that there are secondary ridges between these primaries, so it’s basically a
24
primary ridge and a secondary ridge. The secondary ridge will actually be the valley between the
25
ridges on the surface, and this will become a structure of the ridge detail on the surface, once the
26
fingerprint is fully developed. * * *
27
If we were going to say, your fingerprint is persistent throughout your entire life, we need to
28
know where the blueprint to that fingerprint is. And it is at the basal layer of the epidermis that
29
the blueprint to your fingerprint exists. And this is where the persistency of your fingerprint
30
continues to repeat. Your skin is a living organism. Those cells continually migrate from the
31
basal layer all the way to the surface. About every 30 days you have a new regeneration of skin,
15
1
therefore, the dead skin sloughs off but the new skin is regenerated exactly as it was in previous
2
form. * * *
3
At around the 20th week of gestation, where these ridges start to appear on the surface of the
4
finger, and finally, * * * at the 24th week of gestation, all of the ridge detail is present on the
5
surface of the skin, and is now locked in as your final fingerprint that you will retain throughout
6
your entire life. * * *
7
It is both the epigenetic and the genetic factors influenced with the creation of these friction
8
ridges that results in unique friction ridge structure, along with a persistent or permanent ridge
9
arrangement of the fingers, which ultimately provides for the scientific underpinnings for
10
fingerprints as a use of positive identification.
11
Q.
Do twins, triplets, quadruplets, have unique friction ridge arrangements?
12
A.
Yes. Obviously, as soon as one wants to challenge whether this is a true scientific base we
13
generally like to move directly towards twins, triplets, and quadruplets, especially those referred
14
to as monozygotic twins, meaning they have the exact same DNA. Those studies have been
15
done, * * * fingerprints of twins were examined, and the determination was, do they have
16
different fingerprints? And the answer to that is yes, they do.
17
For example, when looking at the fingerprints of a pair of twins, at first glance they have the
18
same pattern and look very similar, and just looking at level 1 detail, you cannot individualize.
19
But if one moves down into the level 2 detail by taking a closer examination of these two twins’
20
fingerprints, one can readily see very quickly, that these fingerprints are quite different. * * *
21
From that level, you can see numerous other differences between the two fingerprints, which
22
would clearly allow a competently-trained examiner to quickly determine that these two
23
fingerprints are different, even looking at just a very small portion of the fingerprint.
24
Q.
25
malformed finger, palm, toe, or sole, having the same friction ridge arrangements as someone
26
else?
27
A.
28
perspective— if the human body screws up, and there is malformation, or deformity results, or
29
there is a certain disease associated to the development of the human, will it create these
30
fingerprints to look like somebody else’s? These have also been studied, published in peer-
31
reviewed journals, documented. * * *
If a fetus does not develop properly, is it possible that biological error would create a
Once again, it’s a very important question to have answered from a scientific
16
1
Various types of malformation have been studied extensively, documented and published in
2
peer-reviewed journals and so forth, all resulting in the fact that they are unique and persistent
3
ridge structures, which can be reliably used to make positive identifications to the exclusion of
4
any other person.
5
Q.
What happens during scarring?
6
A.
What happens with regards to if your finger is scarred, or if it’s burned, or something along
7
that line? Will it actually change your fingerprint to look like someone else’s? And the answer to
8
that is no. If your finger is injured in some way, such as a knife cut, or burned very severely, if
9
that intrusion into the skin penetrates past the basal layer of the epidermis, you will have what is
10
referred to as a permanent scar. The finger will heal and a permanent scar will appear on the
11
surface of the finger, but that scarred tissue will also become unique and permanent to you as an
12
individual, in that particular area of your finger. * * * The new permanent structure to that
13
fingerprint will be repeated throughout his lifetime, unless that portion of the finger gets scarred
14
or injured again in some other fashion.
15
Q.
Is there any empirical data that supports the persistence of friction ridges?
16
A.
Yes. Once again, with the onset of studying the use of fingerprints as a positive means of
17
identification, it goes back well over 100 years. In fact, there was a study done by Sir William
18
Hershel back in the late 1800s and early 1900s, which is a pretty landmark piece of study, of
19
which he took many individuals and recorded their fingerprints over time to support the concept
20
of persistence, meaning that your fingerprint does not change over time, and that can be reliably
21
used for fingerprint identification. The fingerprint image on the left was recorded in 1877, and
22
the fingerprint on the right is of the same finger of the same person recorded in 1913. There are
23
different additional recordings taken in between these two periods of time, and the observation in
24
the study made by Hershel at that time was that the friction ridge arrangement does not change,
25
and that it is permanent over this entire time.
26
* * * I mentioned earlier that your friction ridge skin regenerates about every 30 days. So, from
27
1877 to 1913, at an average rate of regeneration of skin every 30 days, it would be 430
28
regenerations of skin. Yet the fingerprint comes back exactly as it did each and every time
29
before. It is through this process that we can utilize this information to support the concept of
30
persistence of an individual’s fingerprints.
17
1
* * * We also have the FBI 1999 study that we did. At that time, there were approximately 25.8
2
million individuals’ fingerprints recorded in the FBI’s criminal history files, which represented
3
91.6 million arrests. So, obviously, some of these individuals had more than one arrest. * * * It
4
is through the process of looking at each of these fingerprint cards for each of these different
5
arrests which could vary in time anywhere from one day to 20 years, and looking at the friction
6
ridge impressions from each of these fingers of these individuals, and noting that their fingerprint
7
did not change over time. Once again, supporting the concept of persistence of the friction
8
ridges on each individual’s finger being maintained the same throughout one’s entire life.
9
Q.
Can you describe studies that support individuality and persistence?
10
A.
There is a study that shows there have been a number of attempts going back to 1892, and
11
as recently as 1985, in this review by the study, which is entitled “On the Individuality of
12
Fingerprints,” which was published in a peer-reviewed journal. There was an effort of trying to
13
find out if you can ever duplicate someone else’s fingerprint, with 36 minutia points in the
14
second column, and 12 minutia points in the third column. Now, a minutia point is simply
15
described as either an ending ridge or bifurcation in a fingerprint, which is a very, very limited
16
amount of information in a fingerprint. There is a lot more information that could be utilized to
17
further support the uniqueness and persistency of friction ridge detail. * * * The indication from
18
all of this research is the chance of ever having two individuals to have the same fingerprint
19
configuration exceeds the world’s population of fingers.
20
Q.
21
reliable means to positively identify one person from all others?
22
A.
23
reliably make fingerprint examinations and conclusions that a particular print was made by the
24
same finger of a particular individual. The friction ridges and their arrangements are unique.
25
What is important to understand here, is that the genetic and epigenetic factors during gestation
26
provide for biological science of uniqueness and persistence. And it’s also important to
27
understand that it’s at the ridge level of uniqueness, as well as the aggregate of the ridges on the
28
finger that result in a unique formation.
29
Secondly, is that the ridges are persistent due to the structure of the friction ridged skin. We
30
know from the biological sciences that the blueprint exists at the basal layer of the epidermis,
31
and as long as that remains intact, your fingerprints will regenerate in the same fashion each and
Do you have a conclusion that summarizes the biological bases for fingerprints being a
Yes. Yes, I do. Uniqueness and persistence are the scientific underpinnings that allow us to
18
1
every time. If there’s damage to that, then there will be damage to your fingerprint, which will
2
also result in a new, unique configuration.
3
Thirdly, is that the uniqueness and persistence of the skin has been supported in studies through
4
twins, as well as through the use of statistics and probability models. The conclusion from all of
5
that is that friction ridge impressions, meaning your fingerprints, palm prints, toe prints or
6
footprints in the form of a latent print, and also in the form of a known exemplar, can be used to
7
individualize, regardless of the size of the area that’s used to examine.
8
Q.
Are there statistical studies testing the uniqueness of fingerprints?
9
A.
Yes. There have been numerous studies.
10
Q.
Is it possible to use AFIS type of technology as a statistical probability model?
11
A.
Actually, yes. AFIS, which stands for the Automated Fingerprint Identification System, is
12
in fact a fingerprint model itself, and is used by most law enforcement agencies throughout the
13
entire United States, most major law enforcement agencies at the city level, certainly at the State
14
level and certainly at the Federal level with the FBI using this technology. AFIS is simply a
15
computer-based system that allows you to search rather large repositories of fingerprint records,
16
in order to filter through that repository, to try and find the most likely candidate that matches the
17
search fingerprint that you are trying to locate in the database. * * *
18
You take a fingerprint, and that fingerprint can be scanned digitally by the computer, and what
19
that fingerprint scanner would do is try to extract the ending ridges and bifurcation information
20
about that fingerprint. * * * Actually, the computer doesn’t see the fingerprint * * *. It simply
21
turns everything into a set of numbers. The way that it does that is it takes each of those red dots
22
that appeared on that fingerprint previously, puts all of that information in terms of the location
23
of those characteristics on an X/Y axis. * * * So, every one of those minutia points in that
24
fingerprint would be represented by an X, Y and theta value * * *.
25
So, that one fingerprint is now represented in the computer by nothing but a series of numbers. *
26
* * So, the first row of numbers would be the minutia at the very top of the fingerprint, and it
27
would go from the top of the fingerprint all the way down to the bottom of the fingerprint,
28
recording each of those values for each of those characteristics into the computer memory. The
29
other columns simply represent the other fingers of that particular individual. * * *
30
Q.
How is a latent from a crime scene identified with AFIS?
19
1
A.
We’ve created a repository of known fingerprint exemplars into the database. * * * What if
2
you have a latent fingerprint from a crime scene, and you want to be able to search that database
3
to see if you could come up with a possible match? * * * What happens is that this latent print
4
would be displayed on a computer scan and the latent print examiner would go through the
5
process of encoding this minutia, these ending ridges and bifurcation into the computer. He
6
would be marking all of those features as represented here by these red dots. Once he has
7
completed that, the computer would extract that same series of information, put those red dots
8
into a series of X, Y, and theta values, and it would then record that information as the search
9
information.
10
Now, because the latent print is smaller in size and fragmentary, and not the full image of the
11
fingerprint that was on the known exemplar, it’s a much smaller set of data. So the computer has
12
to take that smaller amount of data, which is represented on the left side of this chart.
13
Q.
How does AFIS search for a match?
14
A.
* * * The latent print data, represented in a computer set of numbers, and it would be
15
searching against all of the fingers in the database. The column on the right is just one finger in
16
the database. So if you had 28 million fingers in the database, it would compare the left set of
17
numbers to the 28 million sets of numbers in the database. So, this is a statistical model, based on
18
probability of how close this set of numbers relates to any sets of numbers in this long string over
19
here.
20
Now, once it does that calculation, which is done probably in the neighborhood of, you know,
21
anywhere from 3,000 matches per second, up to 3 million matches per second depending on the
22
computer horsepower of the system, it will generate candidates that most closely resemble that
23
set of numbers. So, as you can see here, the computer is not actually matching fingerprints, it’s
24
matching numbers. So, what gets presented to the latent print examiner at the end of the search
25
process would be the fingerprint images that represent the highest scoring candidates from that
26
search process. He would then manually compare the latent print to each of the 10-print
27
candidates that resulted from that search. And those candidates would be ranked by a score. The
28
higher the score, the higher the probability of a match. * * *
29
So while AFIS is an interesting search tool, it by no means makes fingerprint identifications. It
30
still requires the human fingerprint expert performing a latent print examination to make that
31
final determination. But through statistics and use of probability models, you can see that the
20
1
power of statistics is very important to getting through large repositories of fingerprints to help a
2
fingerprint examiner get to the best sense of candidates.
3
Q.
4
uniqueness of fingerprints?
5
A.
6
test does it work, but also test to see if you can falsify the premise. And falsifying the premise is
7
basically the intent that was trying to be performed here. A statistical study * * * was done by
8
Lockheed Martin Corporation, under the direction of the FBI. We referred to this as the 50K
9
study, meaning 50,000.
Are there any studies using AFIS technology as a statistical probability model to test the
Absolutely. One of the things that a good scientist should always strive to do is not only
10
So, what we did is we wanted to select 50,000 fingerprints, because it would be a statistically
11
significant sample size. But we intentionally biased the study to try and find two different
12
people, or two different fingers to have the same fingerprint. So, we wanted to limit the study to
13
50,000 left-sloped loops. We did not want to incorporate arches or whorls, because the degree of
14
difference was so obvious that it would simply bias the test in favor of showing uniqueness, and
15
we wanted to bias the study to try to falsify the premise of uniqueness.
16
Through the biological sciences, we also limited the study to just white males. We did not want
17
to include such things as females, or black males, or Asians or anything along that line. So that
18
we wanted to try, once again, to create the greatest chance from a biological perspective, of
19
having two different fingers, or two different people with the same fingerprint.
20
Because we are matching 50,000 fingerprints and because that is very time-intensive, we used
21
the AFIS technology. We used the term l-AFIS, which simply stands for the Integrated
22
Automated Fingerprint Identification System, which is used by the FBI, that Lockheed Martin
23
Corporation built, and we used that series of very sophisticated matched algorithms to run this
24
study.
25
Now, what is important to understand is that this study is just limited to level 2 detail alone.
26
What I referred to earlier is an examiner uses all three levels of detail. But the computer
27
technology only uses a subset of that detail. So, this is not complete in any way, but it does give
28
us an indication of how robust fingerprints are, and the fact is, if we could find two different
29
fingers, or two different people with the same fingerprint using just level 2 detail alone, it would
30
be very powerful information.
21
1
* * * We wanted to test the fully-recorded fingerprint, so we took the 50,000 fingerprints and
2
compared them using the computer against the other 49,999. If you do the math, that comes out
3
to two and a half billion comparisons were performed through this computer.
4
The second study was to try to emulate that of a latent print. And once again, trying to say, can
5
we find just a small fragmentary portion of a fingerprint that would be the same between two
6
different fingers or two different people. And once again, trying to falsify the premise of
7
uniqueness. What we did in test 2 is we found the average size of a latent print, and took 300
8
latent print cases. We actually measured the size of the latent prints, and we found that the
9
average latent print was about 21.7 percent of a fully-recorded fingerprint. So we took 21.7
10
percent of those 50,000 fingerprints, just extracted that area from a fully-rolled print and took
11
that 21.7 percent area, regardless of how much information was contained in that, and we
12
searched it against the 49,999 other fingerprints, for another two and a half billion comparisons.
13
But what is important about test 2 is, not only did we take that small portion out, but we took that
14
small portion out, and we searched it right side up, upside down, on its side, and we searched it
15
through the entire area of a fully-rolled fingerprint, trying to find if that portion could fit
16
anywhere for any other finger in any configuration possible.
17
The result of test 1, which is the fully-rolled fingerprint, is the probability of a non-mate rolled
18
fingerprint being identical to any particular finger is less than 1 chance in 10 to the 97th power.
19
That’s 1 with 97 zeroes behind it. I don’t even know what to call that number.
20
***
21
Extrapolating that out to the world’s population—and this study was done in 1999, your Honor.
22
Of course the world’s population is now estimated to be 6.3 billion people. In 1999, it was 5.9
23
billion. You multiply that by 10 fingers, that is 59 billion fingers, or a 5 and 9 with 9 zeroes
24
behind it. Extrapolating that out to a chance of having two individuals with a same fingerprint is
25
one chance in 10 to the 86th power. That is more people and more fingers than exist on the
26
planet today. And probably, for many centuries in the past.
27
If you take * * * a fragmentary portion of a fingerprint, * * * you simulate a latent print. And the
28
probability of just that portion of a fingerprint, that being a simulated latent print * * * It’s one
29
chance in 10 to the 27th power for a small number of minutia of getting down to just four of
30
those minutia points. And going as low as 10 to the 97th power, as soon as you reach up to 18 of
31
those minutia points, once again, extrapolating that out to the world’s population is one chance in
22
1
10 to the 16th power of ever finding two individuals to have the same friction ridge arrangement,
2
even for a small portion of a fully-rolled fingerprint, that being 21.7 percent area of a fully-rolled
3
fingerprint. * * *
4
Q.
5
probability models fail to take into account all of the information an examiner uses.
6
A.
7
approach to making a fingerprint identification. It requires the aggregate of level 1, and level 2,
8
and level 3, if it’s appearing to be in agreement in order to effect fingerprint identification.
9
So, the question resides here is, how would one readily recognize and say that even though there
Please explain what you mean by saying that the limitations of statistical and AFIS
* * * A simplistic counting of points, or a minimum number of points is an inappropriate
10
might be seven characteristics in agreement, that these two fingerprints are different? The
11
answer would simply be at the level 1. One of these is a loop pattern, that of fingerprint number
12
1. The other one, fingerprint number 2, is out of a whorl pattern. They are different from level
13
one, and therefore, can be excluded as being made by the same finger of the same person quite
14
easily.
15
Q.
What do latents look like from crime scenes?
16
A.
* * * A latent print, developed on a piece of evidence, * * * is very fragmentary, small
17
portion of the total fingerprint area. * * *
18
So, the question is, if one wishes to take a look at this type of information, and then compare it to
19
two known exemplars, * * *, could one make a distinction and say which one of these two
20
known exemplars is the actual finger that made the latent impression?
21
Now, noting that ink print number 1 and ink print number 2 are from different fingers. But if you
22
just take a look at the seven characteristics depicted there, one could see a very close correlation
23
of information, and one might think that these two fingers, or these two fingerprints came from
24
the same finger of the same person, when in fact they did not. So, what is distinguishing between
25
these two fingerprints? Through a close examination of level 1, level 2, and level 3, it can be
26
easily detected that these are from different fingers.
27
So, the question then is, if I were to compare the latent print against ink print number 2, would I
28
be able to just distinguish, or individualize, or exclude these two prints as being made from the
29
same finger of the same person? The answer here is that even though there is a close correlation,
30
once one examines all three levels of detail, it can be easily determined that the finger which
23
1
made the latent print did not make the known exemplar labeled ink print number 2. It is an
2
exclusion, and not that from the same person.
3
When examining this latent print with ink print number 1, once again, going beyond just a
4
simplistic counting of points, but looking at all three levels of detail, one can then determine that
5
this fingerprint, the latent print on the left, was made by the same finger which made the
6
fingerprint impression labeled ink print number 1 on the right.
7
So once again, this is a demonstration to indicate that one must go beyond just a simplistic
8
counting of points, in order to reach a reliable conclusion of an individualization. It requires a
9
close examination of level 1 and level 2, at a minimum, in order to reach an identification
10
decision reliably, and level 3, if the quality and clarity so presents itself, in order to be examined.
11
***
12
Q.
13
means of personal identification?
14
A.
15
aspect to the utilization of fingerprints, as a positive means of identification. The survey was a
16
three-part survey, and it went out to all 50 states, to the agencies that utilize fingerprints as their
17
main record-keeping for their criminal history records for that state. It also went to Canada,
18
Great Britain, and to the District of Columbia. So, there are 53 participants in the survey.
19
The first part of the survey * * * goes to demonstrate the actual information that was recorded,
20
and what was asked of these individuals with regards to the general acceptance. * * * The
21
question was asked how many individuals were represented in your fingerprint repository. The
22
total of all of those agencies surveyed came back, and the total was approximately 69 million
23
individuals’ fingerprints, times 10 fingers exist across the U.S., Canada and the U.K. So basically
24
690 million fingerprints. In 1998 agencies were given 10-print searches, the question asked was
25
how many 10-print searches were performed in the last 12-month period for 1998. So the answer
26
we got back was approximately 8.9 million 10-print searches were conducted against those 69
27
million fingerprint records.
28
Question 3 asks, have you ever found two different people to have the same fingerprints?
29
Unanimous answer was no. * * *
Is there evidence to support general acceptance of using friction ridge impressions as a
* * * A survey was conducted by the FBI in 1999, and this was to get a general acceptance
24
1
The next question asked, how many latent prints were searched against the fingerprint files in
2
1998? And the total answer from all of those responding was there was just under a half a million
3
latent prints were searched against the repository of 69 million 10-print records.
4
Question 5 then asked—for a total of 345 billion comparisons being conducted through that
5
process—have you ever found that a latent fingerprint has been identified with two different
6
fingers of the same person, or even different persons? Once again, a unanimous answer of no.
7
Next, have you ever found two fingerprints from the same finger of the same person, in which
8
the ridge arrangement has changed overtime, excepting scarring and natural change in size due to
9
growth? The answer unanimously, once again, was no.
10
And finally, * * *, does your agency accept the fundamental principles of uniqueness and
11
permanence or persistency, as scientific basis for using fingerprints as a means of
12
individualization? And the unanimous answer was yes.
13
There was a second part of this survey * * * where we included a 10-print fingerprint card and
14
asked them to search that fingerprint card against their entire fingerprint repository to see if there
15
was any other individual with those same fingerprints.
16
So, when searching that 10-print card, the search results for those who responded, and this part
17
of the survey, not everyone responded, your Honor. So, for those who answered, the question
18
was, did you find any other individual with the same fingerprint record? And the answer was no.
19
With the exception of the State of Pennsylvania. And when the survey was created, we selected a
20
fingerprint card that we knew that that individual had a prior arrest record in the State of
21
Pennsylvania. So, our survey was designed to the expectation of having Pennsylvania find that
22
fingerprint card. And in fact, their response to that was, yes, they, in fact, did find it. The other
23
49 states, the District of Columbia, Canada and Great Britain did not find any other person with
24
the same set of fingerprints.
25
So, from the survey perspective, we found the correct individual, they found the correct
26
individual in the State of Pennsylvania, and no other individual was found to have the same
27
fingerprints amongst the other 69 million fingerprint records.
28
The next part of the survey addresses latent prints, and each agency was asked to search two
29
latent prints, A and B, and * * * we asked them to search those two latent prints against their
30
fingerprint repository using their computer system. * * * No one found any fingerprint
31
corresponding to those latent prints in their database. Now, we did have the expectation that the
25
1
State of Pennsylvania would find those two latent prints, because we knew that the 10-print
2
record that corresponded to those was in the database. Unfortunately, we learned after the survey
3
that the State of Pennsylvania was in the process of upgrading their computer system, and they
4
couldn’t conduct latent print searches in their system at that time. So, they were unable to
5
respond to that portion of the survey.
6
Finally, we asked the agencies to take those two latent prints and give them to a fingerprint
7
expert and have them compare it against the photograph of the 10-print card that we submitted in
8
the survey. Now, we knew going in that the one latent print labeled A was identified with the
9
right thumb, which is referred to as position number 1 in the column, and latent print B was
10
identified with the left thumb or position number 6 on a standard fingerprint card. * * * For those
11
that responded, they all identified properly the correct finger position for the latent print. No one
12
made an erroneous identification.
13
So, what we found out from this survey is that the ability to retire and search these fragmentary
14
portions of latent prints against an entire repository of over 690 million fingers, no other person
15
has the same fingerprint configuration, and when asked of a fingerprint expert to compare these
16
particular prints against a known exemplar, they were able to reach the correct conclusion for
17
each of the two latent prints.
18
And finally, * * * the third part of the survey, which goes to asking them historical questions of
19
the use of fingerprints. The general conclusion from the survey of part C was asking over a 10-
20
year period of AFIS 10-print searches from 1988 through 1998, have you ever found two
21
different persons with the same fingerprint? Once again, the unanimous answer of no.
22
And we also asked, over the entire time that they have used fingerprints, for example, England
23
going back to 1901, the state of New York going back to 1904, have they ever found two
24
individuals to have the same fingerprint? Unanimous answer, no, once again.
25
Next, the question asked was if the agencies relied upon fingerprints as a positive means of
26
identification and to individualize, and the unanimous answer was yes.
27
In discussing the general acceptance of fingerprints, it goes outside of the law enforcement
28
community. The use of fingerprints has wide general acceptance within the military, and the use
29
for disaster identification, such as the tsunami that took place over in Indonesia, fingerprints
30
were heavily relied upon in identifying the deceased individuals there. When our military
31
deceased are coming back from Iraq and Afghanistan, fingerprints are used as a means of
26
1
positive identification for them, as well. Hospitals use infant footprints as a means of
2
identification. The security industry is moving more and more towards use of biometrics and the
3
use of fingerprints is the leading biometric, because of its high reliability. Civil service
4
applications and immigration uses of fingerprints to allow people to come in and out of our
5
country, or for passport identifications, for driver’s licenses, and many other applications are
6
relied upon heavily, and fingerprints demonstrated to be a reliable means in identification to the
7
point of individualization.
8
Q.
9
Friction Ridge Analysis”?
Are you familiar with Mr. David Ashbaugh’s book entitled “Quantitative/Qualitative
10
A.
Yes. Yes. I am. It’s a book that we use as part of our training program as well.
11
Q.
Are you familiar with what he calls the ridgology formula?
12
A.
Yes.
13
Q.
Would you please explain this.
14
A.
* * * Mr. Ashbaugh has coined the phrase, “Ridgology,” which is the term used to
15
compare friction ridge impressions. The ridgology formula that he goes on to explain addresses
16
the scientific basis and carries that over into the ACE-V methodology, and I’ll explain the ACE-
17
V methodology in a minute. He makes the statement that you have to understand the scientific
18
basis of the biological sciences, and the fact is that the finger itself is a three-dimensional object,
19
has uniqueness and persistence, and that this is found in the anatomy, embryology, and genetics
20
of the biological sciences.
21
A ridge that carries a three-dimensional object, your finger of a two-dimensional impression of a
22
latent print at a crime scene or a known impression on a known fingerprint card requires an
23
individual to have certain knowledge, skills and abilities. He refers to this as philosophy, I refer
24
to it as training and education, that identifies an expert’s ability to properly interpret these
25
friction ridges.
26
And then, once you have an understanding of what you are examining, you must have a method
27
which allows you to properly interpret those images in a comparison mode. That methodology he
28
refers to as ACE-V, which is an acronym that stands for analysis, comparison, evaluation and
29
finally, verification. So the analysis. comparison and evaluation is performed by the initial
30
examiner, and the verification is performed as an independent peer-reviewed process by a second
31
examiner. If for any reason there is a difference of opinion between the original examiner and the
27
1
second verifying examiner, the process must be reiterative, and it needs to go back to any point
2
in time during this process to understand what the cause of the difference of opinion is, and an
3
ability to resolve those differences of opinion and to reapply the ACE-V methodology properly
4
in order to reach the correct conclusion.
5
Q.
6
exemplars affect the identification process.
7
A.
8
and also the quantity of information, for all three levels of detail. A study published by John
9
Vanderkult in a peer-reviewed scientific journal. What he tries to explain here is the qualitative
Please explain how both quality and quantity of information in latent prints and known
The examination process, using the ACE-V methodology, is heavily influenced by quality,
10
and quantitative aspects of doing latent print examination must be clearly understood.
11
The Y axis on his graph here refers to the quality of a latent print. So, if you go down to where
12
the zero indicator is on the—where the X and Y axis is, it means that you have very little quality.
13
I mean it’s almost nothing but a smear, or a black blob of ink or something there. Where the
14
ridge detail is pretty much indiscernible. And moving upward on this scale, towards the top left
15
of the scale, the quality improves.
16
So, the images on the left that you can see down here, are pretty much unusable information, and
17
as you go up the Y axis, the quality of that fingerprint ridge detail becomes better and better.
18
When you get to the top, the ridge detail is quite easily discernible, and an easy examination can
19
be performed.
20
In contrast to that, on the X axis would be quantity of information. Now, this quantity of
21
information could actually be a three-dimensional aspect. You need to take into account the
22
quantity of all three levels of detail. Level 1, level 2, and level 3. And as you can see, as you
23
move from the left to the right on the quantity scale, you can have a small area of information to
24
getting more information and going all the way over to the far right image, where you have a
25
tremendous amount of information, and you would have information at all three levels of detail.
26
So, the question then is, when you bring these two factors together, when you perform a
27
comparison, that comparison becomes a unique set of circumstances. So that if you’re dealing
28
with a high quality image that has a high quantity of information, it is quite easily determined
29
that a conclusion can be reached without much difficulty. As the quantity and quality of
30
information diminishes, you get closer and closer into areas where it becomes insufficient
31
information, and no conclusion can be reached at all.
28
1
Now, of course, * * * at some point in time, each of these comparisons will take on its own
2
qualitative/quantitative aspect. And therefore, there could not be, or should not be any one set
3
criteria that says given this set of circumstances, you need this quantity or quality of information.
4
Because you are dealing with unique circumstances of information about a fingerprint, you are
5
dealing with a unique amount of area, in terms of the quality and quantity of information, your
6
comparison will change with every latent print, and every known exemplar that you need to
7
compare.
8
So, the question becomes, what happens as you move closer and closer to insufficiency? Well,
9
this gray area is truly a factor of experience. And this is where an examiner’s training, education
10
and experience do play a role. So, the fact is, can I sit here before you, your Honor, and clearly
11
state that when I was performing latent print examinations 25 years ago, would I be making
12
comparison identification decisions to the same level that I would make today? I would have to
13
honestly say, no, that through my experience of 30 plus years, that I have the ability to effect
14
identifications with less quantity and quality of information than someone is who is probably just
15
starting out in their career. It’s a function of having to deal with qualitative and quantitative
16
aspects of fingerprint ridge detail.
17
***
18
Q.
19
examination?
20
A.
21
methodology used for fingerprints in general, is referred to as ACE-V. The analysis, comparison,
22
evaluation and verification. So, the question immediately raised is, well, how does this relate to
23
the general scientific method that can be taught in any science course, in any university across
24
the country?
25
* * * If one were to take the first aspect of the scientific method of observation, in saying how
26
does that relate to the ACE-V methodology, it is simply the observation that a latent print exists
27
on this crime scene piece of evidence.
28
The problem is, who is the source? The hypothesis would be the print comes from this finger of
29
this person. So, the experiment then is to test that hypothesis, to actually compare it and say,
30
does this come from that finger of that person, or does it come from a different finger of that
31
person, or is it not from that person at all?
What is the standard methodology used by examiners when conducting a friction ridge
In discussing the scientific method, as I have already mentioned, the examination
29
1
So, the analysis and comparison phase of the ACE-V methodology must be implemented at the
2
experiment level, and the conclusion and the scientific method is the evaluation phase. And that
3
is, what’s the answer? Is it from that finger, or is it from a different finger, or it is from a
4
completely different person? And then, of course, you want to repeat that process. The scientific
5
method asks, is it repeatable?
6
So, the question there is that from a repetition standpoint, it must go to a verifier, which is the
7
second verifier, the second independent examination of the first examiner’s work. You need to
8
record the results, record it in a latent print documentation, which we do in a latent print
9
examination, and then an examination can be performed even a second time and that is through
10
external peer review. Meaning in a forensic examination, the original examiner’s work can be
11
reviewed by another qualified expert, in this case, possibly obtained through the defense counsel,
12
or whatever.
13
So, the question then, is can we actually apply this ACE-V methodology as a scientific
14
methodology in casework * * * to actually identify how we perform that ACE-V methodology.
15
Once again, reiterating that there are three levels of detail which must be accounted for. The
16
exhibit labeled the latent print is simply to perform an analysis, and as a good scientific process,
17
you want to do an analysis of the latent print before you ever look at a known exemplar.
18
So, the analysis of this latent print would be to take a look at level 1 detail first, and to look at the
19
ridge flow. As a result of this particular print, we could make some determinations. Is this a
20
fingerprint of the end joint? Is it not a fingerprint of the second or third joint of the finger, and is
21
it not of the palm print? A well, competently-trained examiner would make a determination that
22
this would be a fingerprint from the end joint of the finger. It could not be that of the second or
23
third joint. The reason being that the second and third joints of the fingers will not have any
24
circular pattern configurations in those areas, and we know that from the biological sciences.
25
So, the second thing, then, is to look at level 2 detail. Now, we are also noting the fact that we
26
have performed orientation of this fingerprint with level 1, and we have made some qualitative
27
assessments of this fingerprint, and we are now looking at the ridge paths. So, you simply pick a
28
ridge, doesn’t matter which ridge you select, follow the path of that ridge, and determine what, if
29
anything, occurs. The ridge which I selected is outlined in green. It’s a continuous ridge. And
30
there are no characteristics present.
30
1
This process can be continued throughout the entire latent print, and what you are noting is the
2
presence or absence of characteristics. You are noting the type of characteristic, you are noting
3
the relationship of that characteristic to all other ridges, and you are making a determination as to
4
how well the quality and the quantity of information is presented in this particular latent print.
5
At this point in time, there is sufficient information to say that there is enough data that warrants
6
moving into the comparison phase.
7
Moving on in terms of the analysis of that latent print, you would look for level 3 features, and
8
you can zoom in on one particular area that is highlighted by the yellow box and take a look at
9
that particular ridge which is present there, and we can glean a lot of information about that.
10
For example, there is a bifurcation at that particular point in the ridge, the ridge to the left of that
11
bifurcation is narrower than the ridge to the right. As you move down the right side of that ridge,
12
you will see a little nodule that sticks up, the ridge has a certain plateau effect and there is a
13
depression of the ridge as you move down on the right side of that ridge right in this area here.
14
So, having completed the analysis of the latent print, of all three levels of detail, as well as the
15
quality of information, you can move into the analysis of the known exemplar, and once again, a
16
qualitative assessment would be made, and notes from this particular exemplar, there would be
17
certain fingerprints that would appear to be of different levels of quality. For example, the
18
fingerprint which is recorded in the number 3 finger block looks to be heavily inked, whereas,
19
the number 8 finger block or the left middle finger appears to be less heavily inked. And the left
20
little finger, the number 10 finger block her, would be of a mixture of heavy ink to one side and
21
lighter ink to the other side.
22
So, there is this qualitative analysis that is going on. And also noting that there are two
23
impressions for each finger which exist on the fingerprint card. The right thumb is recorded here
24
and the right thumb is recorded here. So, the plain impressions, recorded down here, and the
25
rolled impressions, recorded in each of the finger blocks, can both be utilized to support the
26
analysis and the comparison with the latent print.
27
So, if one were to start with the right thumb, as a comparison with that particular latent print, I
28
would then do the analysis of both the rolled and the plain impression, and make determinations
29
as to whether there is any inconsistency of what I noted in the latent print, that would
30
immediately cause me to exclude this print from being compared.
31
1
Looking at level 1 alone, the information is consistent with what I noted in the analysis of the
2
latent print, which would allow me to proceed to level 2. I would perform the same type of
3
analysis that I did in the latent print, with this known exemplar. And I would note the fact that
4
there is even level 3 information, which I can rely upon.
5
Having noted that I have sufficient analysis and ability to interpret with quality and quantity of
6
information of both the latent print and the known print, I can move the two into the comparison
7
phase, and put these two prints side by side.
8
At this point, I am looking for, first and foremost, reasons to exclude. The exclusion criteria from
9
a latent print examination standpoint is much easier than the identification criteria. In fact, the
10
standard for exclusion is that you only need one exclusion criteria, in order to say that these two
11
prints were not made by the same finger of the same person.
12
So, always on the lookout for reasons to exclude, I then begin the comparison process, in looking
13
for areas that are in agreement. Noting that at level 1 there are no areas of disagreement, and in
14
fact, there are all areas in agreement, I would then move to level 2, and I would begin to examine
15
the level 2 detail for agreement, looking once again to see if everything is in the same location,
16
type, direction, relationship, and so forth. And as I continue the examination of these two prints,
17
I notice this is at the same level 1 detail, and the same level 2 detail exists.
18
Now, this same process * * * can be extended to all of the areas of the latent print, and would be
19
further demonstrated by the set of minutia characteristics labeled B for bifurcation, E for ending
20
ridge, and there is even a D for dot. Which is in agreement.
21
So, as this process continues here, the examiner would note all of the areas of agreement, but
22
more importantly, looking for any area of disagreement. Noting no areas of disagreement and
23
noting that all areas are in agreement, the only conclusion that can then be reached is one of
24
individualization. This can be continued even looking at level 3 detail, and this particular print,
25
and noting that the same level 3 detail is consistent.
26
So, in this examination, using ACE-V methodology, it’s been noted that level 1, level 2, and
27
level 3 detail, and the quality and quantity of information is all in agreement, and that there exists
28
no discrepancies in any of the three levels of detail which would warrant an exclusion criteria.
29
So, it is the aggregate of all 3 levels of detail that is required in order to effect a reliable
30
conclusion, that these two prints were made by the same finger of the same person. As the ACE-
31
V methodology goes on to say, is that the verification process must be invoked. All
32
1
identifications are verified by another qualified examiner. It is a simple quality assurance
2
mechanism, and it’s part of the scientific peer reviewed process.
3
Q.
What is the error rate for friction ridge identification?
4
A.
Error rate is an interesting -I think that I find that the Supreme Court put a burden on the
5
Court, which is quite interesting. From a scientific perspective, and looking at the Daubert
6
decision, the question the Court asked is what is the methodology error rate. If we are saying
7
ACE-V is the methodology, the question is what is the error rate of that specific methodology for
8
fingerprint examination. And it’s—it’s a difficult thing to grasp hold of. So, what we have
9
alluded to, and this was first originated in the same discussions that take place in most of the
10
forensic disciplines and initially with DNA, is that you have two types of errors, a practitioner
11
error and a methodological error. And for purposes of discussion why we are here today, it’s the
12
methodological error that is in question. And the answer to that is that there is either no error, or
13
it’s a zero error.
14
But the fact is, practitioners do make mistakes, and fingerprints are no exceptions. There are
15
instances where fingerprint examiners have made incorrect conclusions. So there is some type of
16
an error. Practitioner error.
17
But to help the Court understand the distinction between methodological error and practitioner
18
error rate, I try to use the analogy of mathematics. We’ve all learned how to use simple addition.
19
Well, addition is a methodology of mathematics. And if we add two plus two, I think we all
20
agree that the answer is four. But what happens if someone adds two plus two and comes up with
21
five? Does that mean that the methodology of addition has an error rate?
22
So, let’s put it into a scientific concept, and let’s say that we have a roomful of 100
23
mathematicians and we give them all the same mathematical problem to solve. And that
24
mathematical problem is complex, but has simple addition in it somewhere in the process. And
25
let’s say that 2 out of the 100 mathematicians make a simple addition error. They added two plus
26
two and got five. Or something other than four. So, for two percent of the mathematicians, there
27
is an error rate in their conclusion.
28
The question is, is that to say that two percent of the time, two plus two does not equal four? No.
29
Does that mean that two percent of the time, that the methodology of addition is incorrect? No.
30
You can always add two plus two. The methodology of addition will always equal four. So, the
31
methodology doesn’t have an error rate. The practitioner has an error rate.
33
1
And also, if you were to say that well, what is the methodology of mathematicians applying the
2
methodology addition, is it proper to say that the accuracy of mathematicians is only 98 percent,
3
because 2 out of 100 made an error, so the accuracy of mathematicians is only 98 percent? No. It
4
is inappropriate to take an aggregate of those mathematicians and assign a two percent error rate.
5
98 of those examiners have a zero error rate. Two of those examiners have a 100 percent error
6
rate for that problem. I don’t know what their error rate is for other problems, and that’s a study.
7
So, the issue here, is that practitioner error rate goes to the individual, not to the whole of the
8
practitioners applying the methodology. It could, therefore, be considered part of the
9
qualifications of that mathematician, or the qualifications of a latent print examiner. Does he
10
have an error rate? Does he have a high or low error rate? Has he made prior mistakes? But to
11
say that a latent print examiner, in an office of, say, 10 examiners, and one examiner has made a
12
couple of errors, but the other nine examiners have made zero errors, do you take the
13
accumulation of those who have made errors and assign it to those who have not made errors? It
14
would be inappropriate.
15
So, it’s a very difficult discussion to have, in terms of what’s the error rate and what is the
16
methodology error rate. The methodological error rate of the ACE-V methodology is applied to
17
fingerprints, either doesn’t have one, or it’s zero.
18
Now, does that mean that the practitioner doesn’t have an error rate? Has nothing to say about
19
that. So, those two concepts are different. And I think what we try to say is, that from a
20
standpoint of answering the question that I think the Court has asked, is that from a standpoint of
21
fingerprints, because fingerprints are unique, and persistent, is that there can only be one donor.
22
There is either identification or it’s not identification. It’s not anything in between. And
23
therefore, if an examiner says that he has reached a conclusion of individualization or positive
24
identification, which has now been verified by a second individual, or by a defense counsel’s
25
expert, or whatever it is, then the question is, have you taken sufficient processes, or practices, to
26
have quality assurance, that the practitioner error is not a factor in applying the methodology?
27
And that’s about the best you can do. Now, to try and get a better sense of the practitioner error
28
rate, which I am not so sure is actually applicable to the methodological error rate that is being
29
asked to be addressed here, there was a study that was done and published in a forensic, peer-
30
reviewed journal * * *. And this is a report of latent print examiner accuracy, of which there
31
were 92 participants, they performed 5,861 individualizations, and out of all of that activity,
34
1
there were two erroneous identifications, by two examiners. If one wanted to calculate a
2
practitioner error rate for that group of individuals, it would be 0.034 percent of an erroneous
3
individualization rate, or an error rate for those latent print examiners.
4
However, those two erroneous identifications were then tested in this environment, to 16
5
participants performing as verifiers. And once the verifiers did their end examination of those
6
prints, each of those individuals correctly detected the erroneous identification by the first
7
examiner, and corrected the error. So, therefore, when applying the ACE-V methodology, the
8
error rate was reduced to 0.0 percent.
9
So, it’s a difficult thing to address for the Court, in terms of how to interpret methodological
10
error rate, versus practitioner error rate, whether it goes to qualifications, or to the methodology.
11
Your Honor, the best I can say is, it’s a difficult task for the Court to grasp hold of, and I’ve tried
12
to explain the best I can, in terms of making the distinction between these two types of errors and
13
error rates.
14
Q.
15
by the latent print community in friction ridge examination?
16
A.
17
which I already demonstrated for known exemplars. There’s standard terminology that we use to
18
define and describe pattern types, and all of the terminology that we use in the fingerprint
19
discipline.
20
There is an American National Standards Institute, the national standards. NIS stands for the
21
National Institute of Technology. That’s the federal government agency. They’ve established
22
standards for the interchange of fingerprints. Included in that standard is the FBI’s electronic
23
fingerprint transmission specifications, which is intended to ensure high-quality fingerprint
24
image being captured, and how those would be captured and transmitted across agencies using
25
computer systems. The ACE-V methodology is a standard recognized within the discipline.
26
There are standards for conclusions which have been established by SWGFRAST, which stands
27
for the Scientific Working Group on Friction Ridge Analysis, Study and Technology, which I
28
have been a member of since its inception, 11 years ago.
29
Standards for inclusion also require the single discrepancy criteria, which is probably the most
30
robust, and significant discrepancy standard for exclusion criteria in any of the forensic
31
disciplines. And of course, all of the SWGFRAST guidelines which are published and out for
Other than the standard methodology, are there any other generally accepted standards used
Yes. There are several standards which exist within our discipline. There are standards
35
1
general comment, and accepted by the scientific community in the latent print examination
2
process.
3
These are the standards for conclusions established by SWGFRAST for individualization, or
4
positive identification. It must be the agreement of sufficient friction ridge details in sequence,
5
the conditions that must be satisfied are determined by a competent examiner, applied to
6
common area and both impressions. It’s based on quantity and quality of the ridge detail, and it
7
is absent any discrepancy. Most important aspect of this. And it must be a reproducible
8
conclusion. For exclusion, it is basically the same criteria, with the exception that an exclusion
9
will have the presence of a discrepancy, and finally, the standard for an inconclusive
10
determination is that it lacks sufficient quantity of either agreement or disagreement, in order to
11
reach any conclusion, either that of individualization or exclusion.
12
Q.
Do you have anything further?
13
A.
Just as a summary statement, is that from all that’s been presented here, that we have a
14
strong scientific basis in terms of the biological sciences supporting the uniqueness and
15
persistency of friction ridges as a means to have reliable comparisons conducted for both latent
16
prints and 10-print examinations. The ACE-V methodology is a sound scientific method that can
17
be relied upon. This has been demonstrated through statistics, as well as probability models. The
18
error rate issue, is, while it’s difficult to measure, is minimal. It’s published peer-reviewed
19
articles and books with regards to all aspects of the discipline. Standards exist and are maintained
20
and the general acceptance is international, and it is a multi-application discipline.
21
ASSISTANT U.S. ATTORNEY: Pass the witness.
22
THE COURT:
23
CROSS-EXAMINATION BY DEFENSE COUNSEL:
24
Q.
Good afternoon, Mr. Meagher.
25
A.
Good afternoon.
26
Q.
Mr. Meagher, I got from your testimony here today, that there are no problems with the
27
methodology used, assuming a practitioner follows protocol, in determining the validity of
28
fingerprint identification; is that correct?
29
A.
30
applying the methodology accurately would conclude with a correct conclusion.
You may proceed.
Yes. I think as the standards for conclusions indicated, a competently trained examiner
36
1
Q.
But you said where there is an error factor, and correct me if I’m wrong, is in the
2
practitioner committing some type of error; is that correct?
3
A.
That is correct.
4
Q.
Okay. And you told and testified that you work for the FBI. Does your agency compile any
5
statistics for errors by practitioners in the identification of fingerprint analysis?
6
A.
7
compilation of data and so forth, but —
8
Q.
9
the practitioner error rate is?
No. But I can give you some insight to that. In other words, I don’t have hard data that is a
Well, let me ask this. Mr. Meagher: Do they have that information? In other words, what
10
A.
For each individual?
11
Q.
Right.
12
A.
Yes. Each individual would know their individual error rate, in terms of—let me answer it
13
this way: Every examiner, when they complete training, goes through a certification examination
14
today, before they can handle any casework. So there would be an indication during their
15
training program, in terms of how well they’ll perform.
16
You could deduct an error rate based on controlled conditions in that aspect. Once performing
17
casework, there are a number of ways of which errors can be detected. One is through technical
18
casework review process. One is through the verification process of which we invoke 100
19
percent verification of all identifications. We invoke blind verification under certain conditions,
20
and the fact is, is that we are proficiency tested annually.
21
Q.
I noticed that—
22
A.
There are a number of mechanisms that we can use to detect an error rate of an individual.
23
Q.
And I was noticing that from your curriculum vitae that you provided me with this
24
afternoon. And I guess just on an average, without going into the specifics of the case, what is
25
the practitioner error rate by forensic fingerprint specialists employed by the FBI?
26
A.
27
individual error rate. I don’t have that data.
28
Q.
29
there is an error rate committed by practitioners, despite your fool-proof methodology?
30
A.
31
than as a whole. I can say this about—and first of all, let’s distinguish error rate here. Or errors,
Don’t have that data. I don’t know what to say. I don’t have access to every examiner’s
And—well, let me ask this question, Mr. Meagher: Would it be a fair statement to say that
Well, as a whole. There is a difference between acting as individuals, asking that question
37
1
in fingerprints. There’s basically three types of errors that can be made in a fingerprint
2
examination. One is referred to as an erroneous identification, and that is, you have made a
3
wrong attribution. You said this fingerprint belongs to somebody when, in fact, it does not.
4
The second type of error is what is referred to as a missed identification, that you failed to make
5
an identification when you should have. And the third is basically referred to as a clerical-type
6
error. And that is that you said this latent print is an identification with the right thumb
7
fingerprint of Joe Blow, when it’s actually the left thumb print. So, the only error of consequence
8
I think that we’re talking about here is the first one and that is an erroneous identification. That is
9
the serious type of error that is a wrong attribution.
10
Q.
Okay.
11
A.
With regards to that, the history of the FBI, and I have previously testified to this, as well,
12
we have made, on average, about one erroneous identification every 11 years. Considering that
13
we make over 1 million comparisons a year, that’s about one of every 11 million comparisons.
14
So, if you want to get an indication in terms of that, yes. There have been errors. There is no
15
doubt. We don’t deny that. But at the same token, that’s a very minimal amount of error rating.
16
We’ve been doing latent print examinations at the FBI since 1933, so, about one every 11 years.
17
Q.
18
error rate focusing in on the first category of misidentification?
19
A.
Erroneous identifications.
20
Q.
Right. Erroneous identifications.
21
A.
I know of none in proficiency testing, and I have to be cautious of that, because I’ve only
22
been a manager, and have access to total observations for about 10 years. So, I — I am not aware
23
of any erroneous identifications in there. I am aware that there have been one or two missed
24
identifications, and we consider, from a proficiency test standpoint, a missed identification to be
25
a — you have to be able to perform 100 percent on proficiency tests.
26
Q.
Right.
27
A.
So even if they have a missed identification, but no erroneous identifications, they still
28
must take a second proficiency test.
29
Q.
30
misidentification error rate in the — in forensic examination field, are there?
And what about on your annual competency evaluation? Is there a given percentage of
Now, Mr. Meagher, to the best of your knowledge, there are no studies about
38
1
A.
Well, I guess what do you mean by studies? There are certain individuals who have written
2
about that and discussed that. There have been papers published with regards to cases involving
3
erroneous identifications.
4
Q.
5
people have been convicted based on misidentification of their fingerprints; have there not?
6
A.
Yes. That is correct. There have been a few.
7
Q.
All right. Now, in your direct testimony, you referenced the fact that the FBI doesn’t have a
8
requirement about the minimum number of corresponding points of identification, in order to
9
make a positive identification; is that correct?
And there’s actually been actual cases that have gone to court, where people, innocent
10
A.
That is correct.
11
Q.
But based on your knowledge in the field, which I know is very extensive, various other
12
countries, for example, have minimum standards, do they not?
13
A.
Minimum points as a standard?
14
Q.
Right. Right.
15
A.
Minimum points? There are some, but what you have to understand is, what’s the origin of
16
that? If you look at some of those standards, they are not scientifically-driven standards. A lot of
17
them are legislatively enacted, some of them might even be court-enacted. The question is
18
regardless of what they might have, is it a science-based requirement, and the answer is no.
19
There is no science saying that 12 or 15, or 8, or 20 is the correct answer. The science just
20
doesn’t exist for that. And nor should it, because it only accounts for a very small subset. So,
21
while those do exist, it really doesn’t bear on the discussion here for today, because the question
22
is what is the scientific basis for that. In fact, in discussing that very issue, in 1995, at an
23
international symposium, a declaration signed by 11 countries, even many of those countries
24
have a point standard, concurred there was no scientific basis for requiring a minimum number
25
of points from which to make an identification.
26
Q.
27
identification, is there?
28
A.
29
about. There is a much more rigorous standard, and that is the one discrepancy standard, which is
30
much more rigorous than the quality standard of saying how many.
And that’s the status of affairs in identification, there is no standard for points of
Well, I disagree that there is no standard—there is no standard to that issue you’re talking
39
1
Q.
Now, the one discrepancy standard that you’re referring to, is that the same as the one
2
dissimilarity rule? Is that what we’re talking about?
3
A.
Yes. Yes, it is.
4
Q.
Can you explain for the Court’s information what that rule is.
5
A.
Yes. I alluded to it many times during my direct testimony, and that’s basically saying that
6
if there’s just one dissimilarity that has no viable or plausible or valid explanation for the
7
dissimilarity, if the dissimilarity exists, the only conclusion that can be rendered is one of
8
exclusion.
9
Q.
Okay. Now, you said that if there’s no explanation, again, that would be up to the particular
10
examiner to offer an explanation for the dissimilarity; is that correct?
11
A.
12
interpretation, and through his training, and education and experience, he should have been able
13
to identify the cause and effects of those dissimilarities. And there are set criteria that one can
14
analyze that comes from the evidence, or comes from understanding the processing technique, or
15
many other aspects that provide valid explanations for giving good, viable explanations for those
16
distortions.
17
Q.
18
explanations, even though these dissimilarities exist, in comparisons, a lot of times, forensic
19
identification experts go ahead and still make the comparison between two fingerprints; is that
20
right?
21
A.
22
explanation is valid, as it goes back to the evidence, or is it just an interpretive aspect of the
23
examiner’s abilities.
24
The answer to your question is, is depending on the degree of each of those aspects, an examiner
25
may or may not proceed forward in making his determination of individualization.
26
Q.
Again, that’s a subjective call; is that correct?
27
A.
Well, you triggered there the question of subjectivity. I certainly wanted to relate to the
28
Court here that subjectivity does not equate to unreliability. Many scientific processes have
29
subjective aspects to it.
30
Q.
Well, it’s two parts. I mean the examiner is the one who is actually doing that
And wouldn’t it be a correct statement to say that despite these good reasons for
Well, the question is, how much distortion must be accounted for, how much of the
Right.
40
1
A.
I mean there’s subjective aspects to almost all of the forensic sciences, and just any general
2
science. The question is, is what does the practitioner, and what does the practitioner’s discipline
3
say, as to how subjectivity aspects must be dealt with.
4
For example, I’ll clearly state here that the qualitative aspect is subjective. Quality is a subjective
5
issue that has to be dealt with by a latent print examiner. We are trained to understand that, and
6
we are trained to provide viable explanations for distortions as a result of qualitative issues. The
7
question there is, is there a quality assurance program put in place, what mechanisms are in place
8
to allow the risk of error to be minimized.
9
And good forensic disciplines, and latent prints is no exception, have very good guidelines and
10
quality assurance mechanisms to reduce the risk of error, based on the subjective aspects. So,
11
subjectivity does not equate to unreliability. It just requires a recognition of it, and being able to
12
have controls in place that limit or reduce the risk of error.
13
Q.
14
many slides and pictures of having the ideal, I guess scenario, if you will, of having plenty of
15
information versus latent prints, do you recall that in your presentation this afternoon?
16
A.
Several areas, yes.
17
Q.
Yes. And would putting too much pressure on fingerprints—on the fingers, as they are
18
being rolled off a known booking card, and the print quality associated with that exemplar being
19
taken, could that possibly lead to a misidentification of the fingerprint?
20
A.
21
answer is—well, anything is possible. The probability is very, very limited. Look. Let me back
22
up to the front end of your question there. There’s two distinct ways of recording known
23
exemplars that’s pretty common in today’s law enforcement community. One is the old standard
24
ink on paper, and the other is referred to as live scan technology. That is a computer-based
25
scanner that you roll a finger across a glass platen, it is using light reflection in order to capture
26
good images. If you put too much pressure, the effects in those two scenarios may be
27
significantly different. An examiner trained to competency would be able to recognize the
28
difference processing—or different recording techniques, whether it’s ink or the live scan
29
system, and be able to understand the effects of that process. If the pressure is so extreme that a
30
proper interpretation of that specific ridge detail cannot be made, then he would know enough
Now, let me ask this, Mr. Meagher: You touched upon the quality, and you showed us
A misidentification? Possibly—well, could it possibly lead to misidentification. The
41
1
not to proceed and reach any conclusion. He would simply ask for better-known exemplars, and
2
say, I need better quality exemplars in order to reach conclusion.
3
DEFENSE COUNSEL:
4
THE COURT:
5
ASSISTANT U.S. ATTORNEY:
That’s all I have, Judge.
Redirect?
No, your Honor.
END OF TESTIMONY FROM U.S. V. BAINES
6
COURT: Now that Agent Meagher’s testimony is a part of the record, let’s get started with
7
today’s witnesses on the Daubert hearing. Ms. Davis, please call your first witness.
Direct Questioning of Prosecution Expert, Shannon Ashford
8
ASSISTANT U.S. ATTORNEY: Would you please state your name for the record.
9
MS. ASHFORD: Shannon Ashford.
10
Q. And what do you do for a living?
11
A. I’m a latent fingerprint examiner.
12
Q. Where are you employed?
13
A. I am employed by the Federal Bureau of Investigation in the Latent Print Operations Unit.
14
Q. And how long have you been in that unit of the FBI?
15
A. In that particular unit? For almost 11 years.
16
Q. Now, Ms. Ashford, I won’t be asking you questions about your qualifications since the
17
parties here have stipulated to your status as an expert, but I have just one more question along
18
those lines. As a fingerprint examiner with the FBI, do you take yearly proficiency exams?
19
A. Yes. As part of the requirements formally under the American Society of Crime Lab
20
Directors, or ASCLD, we have to have one, at least, external proficiency, and normally, one or
21
two internal proficiencies each year.
22
Q. Do you learn your scores on those exams?
23
A. Yes. The process is to take the exam, send it in, and then a quality manager forwards it to the
24
issuing company. It’s graded, and the information is given back to the manager, who gives it
25
back to us, to let us know how we did on the test.
26
Q. And how have you done on those exams?
27
A. I’ve been 100 percent correct on all the exams I’ve taken.
42
1
Q. To your knowledge, in your experience in your field, have you ever erroneously made a
2
fingerprint identification or erroneously verified a match?
3
A. No, never, to my knowledge.
4
Q. Turning your attention now to this case, were you asked to examine some evidence in
5
connection with this case?
6
A. Yes.
7
Q. And what was that?
8
A. I examined an unlabled pill vial, specifically the cap, from which I lifted a latent fingerprint.
9
Q. And with regard to examining the pill vial, what was the process you followed for that
10
analysis?
11
A. Well, with everything we examine, it’s the same process. First, I look at the piece of
12
evidence visually, using white light examination, to see if I can see anything in particular
13
because, depending on the surface, sometimes fingerprints will be visible. The next step is
14
usually a Super Glue process, where super glue is put in a tank along with the items of evidence,
15
and then heated up. It fumes and bonds to the moisture on any fingerprints that happen to be on
16
the surfaces. Those give you a white residue, and bond to the ridge detail itself. This way we
17
end up with a white fingerprint, no matter what the surface was. At that time, photography of the
18
print can be done, if it’s a clear enough print. If it is not clear enough, as often is the case, then
19
we move to the next step which is to use a dye stain which bonds to the Super Glue. At that
20
point, photography can be done if there is sufficient ridge detail. Many times you will go all the
21
way through all the processes and there just is not enough there to work with, so you end up with
22
no result, as far as being able to make an individualization.
23
Q. Does the FBI have a procedure for latent fingerprint identification once an image is
24
achieved?
25
A. Yes. The FBI follows the ACE-V process. ACE-V takes over when the processing that I just
26
described is done, the photographs have been taken, and you have ridge detail to evaluate.
27
Q. And is that the methodology that you followed in this case?
28
A. Yes, that was the method followed, because the ridge detail was developed here and we had a
29
latent fingerprint of sufficient quantity and quality.
30
Q. By quantity do you mean the number of matching points?
31
A. Yes. The number of points, also known as Galton points.
43
1
Q. Are you aware of any agencies or countries that have a minimum number of matching points
2
threshold for positive identification of latent fingerprint?
3
A. The only country I know that has a legislated number of points philosophy is Italy. I believe
4
they require 17 points. Everywhere else, it’s an administrative situation. For example, in
5
Australia, some regions say they have a 12 point standard, but they’ll identify the same way we
6
identify in the United States, using ACE-V, which is a combination quantitative-qualitative
7
analysis. But the United Kingdom, which until recently had a 16 point standard, has decided to
8
abandon it for a qualitative, quantitative analysis.
9
Q. In this case, where you able to find a sufficient quantity and quality of matching Galton
10
points in the latent fingerprint from the pill vial and the Defendant’s print?
11
A. Yes. I could determine they both had enough points and characteristics, and enough general
12
information in the fingerprint to make the individualization.
13
ASSISTANT U.S. ATTORNEY: At this time, your Honor, I would like to offer into evidence
14
what has been marked as Court Exhibit No. 1, which is the original dusting of the only latent
15
fingerprint found on the prescription vial found in Ms. Starr’s examination room.
16
THE COURT: Mr. Gilroy [Defense counsel], do you have objections to admitting this evidence?
17
DEFENSE COUNSEL: No, your Honor.
18
THE COURT: The Court will mark the following as Court Exhibit No. 1.
19
ASSISTANT U.S. ATTORNEY: Thank you, your Honor. I would also like to offer into
20
evidence as Court Exhibit No. 2 the rolled fingerprint of Defendant’s thumb.
21
THE COURT: Mr. Gilroy, any objections?
22
DEFENSE COUNSEL: No, your Honor.
23
THE COURT: Very well. The Court will also mark the following as Court Exhibit No. 2.
24
But before you restart your questioning counsel, I have a quick question I would like Ms.
25
Ashford to answer. Ms. Ashford, how many Galton points, or friction ridge points, did you find
26
on the latent print—Court Exhibit No. 1—that you were able to match to the defendant’s print?
27
MS. ASHFORD: Your Honor, as I’ve said, with the quantitative-qualitative analysis the number
28
of matching points does not matter. Comparing the print as a whole and determining whether
29
there is or is not a match should not depend on the number of matching points.
30
THE COURT: I understand that but this is just between you and me. All joking aside, for
31
completeness of the record, how many matching points did you find?
44
1
A. I found fifteen matching points.
2
ASSISTANT U.S. ATTORNEY: In your opinion is fifteen matching points sufficient to make a
3
match between a latent fingerprint and a known print?
4
MS. ASHFORD: Well, as I said and must stress, it is really not the number of matching points
5
that matters. It is the quantity and quality that matters. So yes fifteen points, if they are of
6
sufficient quality are enough to identify the latent fingerprint.
7
Q. Do you believe that there should be a minimum number of matching points necessary before
8
an examiner can make an identification?
9
A. No, I don’t think there should be a minimum.
10
Q. Can you please tell me in your opinion why a minimum number of matching points is not
11
necessary to make a positive identification of a latent fingerprint?
12
A. As I said, it’s a question of quality as much as quantity. Because the Galton points and their
13
position on a print are unique to every individual, an examiner can determine with absolute
14
certainty when there is a match. If the points are sufficiently unique and there is a strong match
15
with the known print, a good examiner can make an identification because these points are
16
unique to every finger. And, in places like Britain that have a minimum point standards, a good
17
examiner can always tease out extra points if necessary to meet the minimum point standards.
18
There is no scientific or theoretical basis for saying that X number of points is not enough, but
19
X plus 1 or X plus 2 is. Any number would be arbitrary. Of course, the more matching points
20
one has the easier it will be to determine a match. But it comes down to an examiner’s
21
professional judgement not the number of points.
22
Q. In your opinion, then, are the various point standards that examiners have used in the past,
23
and which some examiners continue to use, based on science?
24
A. No, people dealing with numbers of points as a basis for identification, I do not believe that
25
those numbers are arrived at through science.
26
Q. Is a system based on a minimum number of matching points an educated guess?
27
A. It’s more than an educated guess. There is no scientific basis, or any basis actually, for
28
setting a minimum points standard.
29
Q. In your opinion, is it acceptable for latent print examiners to continue to use point standards?
30
A. In my opinion it is not.
45
1
Q. Based on your examination of the latent print here, do you have an opinion as to whether or
2
not this latent fingerprint belongs to Dr. Morrison?
3
A. Yes. The latent fingerprint belongs to Dr. Morrison.
4
Q. You sound very certain of this.
5
A. Yes, I am 100% certain.
6
Q. How can you be so certain of a match?
7
A. As I said, fingerprints are unique to every person. So if one print matches another print they
8
must come from the same person. Determining whether there is a match is a yes or no question.
9
Either the latent print comes from a known print or it does not. In this case, the latent print came
10
11
from Dr. Morrison.
Further, in the verification step of the ACE-V process, a second examiner looked at my work
12
and confirmed that there was an identification here.
13
THE COURT: Is there any question in your mind as to that, that you can make an identification
14
based on quantity-quality analysis?
15
MS. ASHFORD: No, there’s no question. Quantitative-qualitative analysis is the process used in
16
all the other sciences.
17
ASSISTANT U.S. ATTORNEY: I have nothing further on direct your Honor
****
18
Cross Exam of Prosecution Expert, Shannon Ashford
19
DEFENSE COUNSEL: Is it true that even inked or rolled prints can have distortions?
20
MS. ASHFORD:
21
Q. And, in fact, rolled prints of the same finger that are taken on different occasions will not be
22
identical, correct?
23
A. That’s correct. The image taken will not be identical, but I want to stress that the fingerprint
24
itself will be the same, since an individual’s fingerprints remain the same throughout his or her
25
life, absent disease or scarring. But two rolled prints of the same finger will probably not be
26
identical.
27
Q. So all prints, either rolled or latents, will have some discrepancies?
28
A. Yes, minor distortions that I have described.
Yes.
46
1
Q. And one of the major tasks that a fingerprint examiner has to determine is whether the
2
features he or she sees in the print being identified, the latent fingerprint, are genuine or whether
3
they are the product of distortion, correct?
4
A. Whether the paths of the fingerprints are genuine and the shapes are genuine, yes.
5
Q. Or whether they are the product of distortion?
6
A. Yes.
7
Q. Would you consider the quality of the prints found here as typical quality for a crime scene?
8
A. Well the quality will vary with the environment—indoors versus outdoors—and the nature
9
of the crime. For example, as you might expect, a violent murder scene is often filled with
10
contaminants, like blood. However, I would say that the latents here are fairly typical.
11
Q. Will examiners make up explanations for discrepancies that they see once they find a
12
sufficient amount of characteristics in common and believe that they have a match, in order to
13
enable them to conclude that the prints were made from the same person?
14
A. No.
15
Q. Are you aware of any latent fingerprint scholars that suggest that that is what examiners do—
16
explain away discrepancies to find a match?
17
A. I have heard that suggested by a small number of people but if the examiner is properly
18
trained and properly applying the ACE-V process he or she will look for an appropriate
19
explanation for any discrepancies. And that’s what the verification step is for, to ensure
20
reliability and prevent what you allude to.
21
Q. In the verification step, does the verifying examiner know the results of the first examiner,
22
meaning whether or not the first examiner found a match?
23
A. Sometimes, yes.
24
Q. Is it fair to say that the findings of the first examiner have an influence on the verifying
25
examiner’s conclusion?
26
A. An influence? I don’t think so. The verifying examiner independently analyzes and
27
compares the prints.
28
Q. So, it is your opinion then, that the verifying examiner, having full knowledge that another
29
qualified examiner has already determined that there is a match, is not influenced at all by that
30
knowledge of the match?
47
1
A. Can I speak to all examiners? No. But any well-trained examiner, doing a thorough
2
independent investigation should not be influenced at all by the prior examiner.
3
Q. In your opinion, do you believe it would strengthen the verification step if the verifying
4
examiner had absolutely no knowledge of whether the first examiner found a match?
5
A. I don’t think so because they’re independent examinations.
6
Q. I want to move on to the issue of subjectiveness of the identification opinion.
7
You would agree, would you not, that a latent fingerprint examiner’s opinion of individualization
8
is a subjective one?
9
A. Yes, it is. The comparison is objective. The forming of the opinion is subjective based on
10
the examiner’s knowledge, experience and ability.
11
Q. Now, in your view, there should not be any type of minimum identification standard that
12
examiners should have to adhere to in order to make an identification, correct?
13
A. The standards are in the training and ability of the expert as opposed to the medium. If
14
you’re talking about the medium, the fingerprint, I don’t think there should be a standard in the
15
fingerprint, an artificial standard.
16
Q. So there shouldn’t be any minimum point standard?
17
A. No, as I’ve said there should not be.
18
Q. Would you agree that having 10 matching points is stronger than having 9 points?
19
A. What do you mean by stronger?
20
Q. Stronger in terms of your conviction that a latent print matches the comparison print?
21
A. No. As I’ve said, it’s about quality as much as quantity. So 10 points of very poor quality
22
may not allow for identification whereas 9 points of very high quality could be the basis for a
23
match.
24
Q. Would having 10 very high quality points be better than 9 high quality points?
25
A. Yes, but . . .
26
Q. So then, is it not fair to say that having 10 high quality matching points is a stronger
27
identification than having 9 high quality matching points?
28
A. No, because it doesn’t matter how many matching points you have. Any minimum number
29
of points standard would be arbitrary.
30
Q. So if any examiners today continue to use point standards, then they are using a superficial
31
standard?
48
1
A. I think if we have an examiner today using points, that would be a suitable comment.
2
Q. Are you aware of the International Association for Identification, the IAI?
3
A. Yes. It’s a forensic organization here in the United States that supports training and holds
4
conferences and attempts to set standards for the United States. I believe it’s the world’s oldest
5
and largest such association.
6
Q. In fact, is it not true that the IAI prohibits examiners from stating opinions in terms of
7
probability of there being a match?
8
A. They are not supposed to go to court, as I understand it, and say it’s likely this person’s print.
9
They could go to court with a fingerprint that they couldn’t identify and say, I can’t identify this
10
print or I can’t eliminate this print. But they can’t say that this print is a match with some
11
probability. It either is or is not a match or is inconclusive.
12
Q. When you make the determination of absolute certainty, you’re making that determination
13
not on the basis of any empirical statistical studies that would give you probabilities as to two
14
different people having 8 ridge characteristics in common, something along those lines? Those
15
studies don’t exist, correct?
16
A. Well, there are studies. It’s just they are not encompassing enough to deal with the variability
17
of the friction skin, and I don’t think they meet our needs yet.
18
Q. Do you believe that these studies, studies about the probability of matching based on the
19
number of matching points, would be valuable for examiners?
20
A. Maybe, but it would need to be really detailed data because the comparison is also about
21
quality so any study based just on the number of points alone would not be much help.
22
Q.
23
A. Yes, there have been a relatively very small number.
24
Q. Are you familiar with the FBI’s misidentification of Brandon Mayfield as responsible for the
25
Madrid train bombings in 2004?
26
A. Yes.
27
Q. In that case, didn’t two trained FBI latent fingerprint examiners and one retired examiner all
28
following the ACE-V process, confidently identify fingerprints at the crime scene as being
29
positively matched to Brandon Mayfield when in fact it was later proven that the prints did not
30
belong to him, and he in fact had never even been to Spain?
31
A. Yes, that was a mistake by the FBI.
Are you familiar with misidentification errors by the FBI?
49
1
Q. Isn’t it also true that there have been other examples of misidentification by the FBI?
2
A. Out of the thousands and thousands of identifications there have been a very small number of
3
misidentifications.
4
Q.
5
that you are 100% positive that the latent fingerprints you examined belong to Dr. Morrison?
6
A. Because the prints either do or do not match. And in this case, based on my examination,
7
the latent fingerprints I examined were the defendant’s.
8
Q. Is it your testimony, then, that there are no errors in latent fingerprint examination?
9
A. If you mean can there be errors in an examiner properly applying the ACE-V technique, then
So, in light of the Mayfield case and these other misidentifications, how can you testify here
10
no, there are no errors. But if you mean can an examiner improperly apply the technique, then
11
yes, there can be examiner errors.
12
DEFENSE COUNSEL: That’s all your Honor.
13
ASSISTANT U.S. ATTORNEY: I have no redirect your Honor.
14
COURT: Thank you for your testimony, Ms. Ashford, you may step down.
Direct Questioning of Defense Expert, Anthony Diaz
15
DEFENSE COUNSEL: Good afternoon, Mr. Diaz. By whom are you employed?
16
MR. DIAZ: I am a retired U.S. Army Criminal Investigation Laboratory latent print examiner. I
17
am certified as a latent print examiner by the International Association for Identification (IAI).
18
Q: Since both parties here have stipulated to your status as an expert, I will not be asking you
19
questions about your qualifications. Turning to your attention to the case here today, with
20
respect to the latent print here, what was your conclusion as to identification?
21
A: My conclusion was that the match was inconclusive. I could not conclude positively that the
22
latent print did or did not come from the Defendant. In my judgement, there was not enough
23
information to make an identification.
24
Q. Can you explain why you felt that the information you had was insufficient for
25
identification?
26
A. Well, first, I could not say for sure that the prints did not belong to Dr. Morrison because I
27
did not find any obvious dissimilarities to exclude the print.
28
Q. Can you please explain what an obvious dissimilarity is?
29
A. Sure. You have two prints sides by side, and there’s an extra ridge on this print but it’s
30
absent on the other print. This is an obvious dissimilarity. These two prints could not be the
50
1
same because some obvious dissimilarity appears, meaning that there is an exclusion.
2
Sometimes you can explain a dissimilarity because of pressure, dirt, over inking, smudging,
3
whatever. But when you can’t explain the dissimilarity then you have to discount that print as
4
being a match.
5
Q. So what you’re saying is, if you examine two prints and see, for example, a ridge on one print
6
but do not see the same ridge in the same location as the other print then you have to conclude
7
that they don’t come from the same person?
8
A. If you couldn’t account for the discrepancy due to, for example, a distortion or artifact, then
9
yes, you would have to conclude that the prints come from different people.
10
Q. Ok. In this case did you find any obvious dissimilarities?
11
A. No, I did not.
12
Q. Well then how did you conclude that the two prints were not a match?
13
A. Well, as I believe has been explained already, the latent fingerprint examination is a
14
combination of quantity and quality. I could not say for sure that the prints did not match
15
because I could not find any obvious dissimilarities but also I could not make a positive
16
identification. I can’t tell you any specific reason why I did not match the prints. I did not find
17
that the quality and quantity of prints were sufficient for a match.
18
Q. Can an examiner make a mistake in identification?
19
A. Well, it depends on what kind of mistake you are referring to, a false positive or a false
20
negative. If you mean a false positive, it is very unlikely when you apply the ACE-V process
21
and look for obvious dissimilarities. However, a missed identification, a false negative, is
22
possible but is not as much of a concern because you’re not falsely accusing someone of a crime.
23
No person is infallible. Even though I’m a certified examiner, I’m not infallible. Once a year
24
we receive inked photographs of fingerprint cards from an independent testing agency to test our
25
proficiency, how good we are in doing fingerprints. They send a dozen cards, dozen fingerprints,
26
ask us to match the prints. Invariably, every year there are a couple of prints that are identifiable,
27
which match some of the cards there, that I was not able to match; whether it is a test of my skills
28
as an examiner I am not sure.
29
So I’m not infallible because I can fail to find a match. But the bigger mistake is finding a
30
match when there isn’t a match, a false positive, what happened in the Brandon Mayfield case.
31
You do not want to say that a fingerprint is somebody’s when it is not because there are three
51
1
legitimate conclusions that a fingerprint examiner can reach. Either there is a match, there isn’t a
2
match, or you don’t know for sure.
3
Q. Would you agree with me that the fingerprint comparison process is subjective in nature?
4
A.
5
training and what I do when I analyze latent fingerprints for identification is cut and dry; I can
6
see the point, I can’t see the point or I’m not sure if it is a point or not. If I’m not sure, I’m not
7
going to call it. And, with prints, they are very small, they are easily smudged, blurred, distorted
8
by twisting, overlaid with another print. There are a lot of things that can happen to a fingerprint.
9
Only experience can ensure that a fingerprint examiner is properly concluding that there is a
I don’t like the word subjective because it lends too much to ifs or maybes. Again, with my
10
match. If I don’t feel right calling the prints a match, I won’t call it. In my opinion, I think most
11
latent fingerprint examiners are, or at least should be, conservative and err on the side of caution.
12
Q. And that’s because fingerprint examiners testify as to absolute certainty, isn’t that right?
13
A.
14
why there’s no maybe it’s this person or it might be this person or might not be. It is, or it is not,
15
or I don’t know. Or if I have a process, such as I can count up this many points, or a process I
16
go through such as the ACE-V procedure, I can hold that process up, I think when I go through
17
this process I come up with this conclusion it is absolutely that person. Once I do that, then you
18
can test the whole process objectively. That’s where science comes into either testing the process
19
or the objective standard.
20
Q. By objective standard do you mean something like a point standard?
21
A.
22
refined. I don’t think a minimum point standard is an appropriate standard, however. For
23
example, when an examiner looks at a point and decides that it does not have sufficient details to
24
make a comparison, this is really just paraphrasing the statement that a simple counting of points
25
is not an accurate representation of a latent fingerprint comparison because quality matters.
26
Q. Are you aware of the International Association for Identification, the IAI?
27
A. Yes.
28
Q. Are you aware of the IAI position with respect to point standards?
29
A. Yes. The IAI and the broader group of fingerprint examiners believe that there is no
30
scientific basis for a minimum requirement of such a number of points in order to accept an
31
identification. My understanding of it is that the IAI does not believe in a point standard. They
That’s what it is supposed to be. It’s either a match, not a match, or you can’t tell. That’s
No, I mean a standard in the process, something like ACE-V, which can be tested and
52
1
prefer to go with the opinion of the examiner based on the quality of the print, his training and
2
experience, the uniqueness of the print and the characters in it, and that there is no scientific
3
basis for a minimum point standard.
4
There has to be a lot of other factors as well. They would apparently accept identifications
5
based on nine points, eight points, whatever, as long as the examiner apparently could present
6
that case, and with all the uniqueness and determination of it. But I do not know what IAI’s
7
verbatim or actual policy is. I do know that the policy of the IAI is that an examiner is never to
8
testify that the result is a maybe. There is no, “it might be,” “it could be.”
9
Q. What would be proper to take the place of point standards?
10
A. I think the ACE-V process is an appropriate standard. It takes in account the examiner’s
11
subjective experience and training but also employs a verification step as a safeguard.
12
THE COURT: Before you get to that, are you saying that you agree that, as a scientist, that there
13
is no set amount of points that are necessary for identification?
14
MR. DIAZ: That is correct. There is no basis to say that there is any particular minimum
15
number.
16
Q. Well, as I asked the Government’s witness, for the completeness of the record, can you
17
please tell the court how many matching points you found here?
18
A. I only found 8. But as I’ve tried to explain, I did not find an inconclusive match solely on
19
the basis of the number of matching points. It was the comparison as a whole that led me to
20
conclude that I could not say one way or the other whether there was a match.
21
Q. Have you ever you made an identification based on only 8 matching points?
22
A. No. In my experience I have always found more than 8 matching points before I have
23
concluded that the latent print matched the known print.
24
DEFENSE COUNSEL: I’m through, your Honor.
****
25
Cross Exam of Defense Expert, Anthony Diaz
26
ASSISTANT U.S. ATTORNEY: Sir, it is possible that your failure to find a match in this case
27
was simply a missed identification?
28
MR. DIAZ: I guess you could call it that, yes. I may have missed the identification, but I do not
29
believe that is the case here.
53
1
Q. Now, a missed identification could be for a lot of reasons. That could be because of your
2
training, experience, competency and because of the difficulty of the latent?
3
A. That’s correct.
4
Q. I’m not suggesting that you suffer from any of them, but that’s something that goes into the
5
calculation, isn’t that right?
6
A. As I said, I’m not infallible, so I could have missed the identification.
7
Q. You mentioned that you have never made an identification based on 8 matching points. Is it
8
your testimony that an examiner could never make an identification based on only 8 points?
9
A. No. If the 8 points were of sufficiently high quality and the examiner was well-trained then
10
it is possible that the examiner could find a match.
11
ASSISTANT U.S. ATTORNEY: I have nothing further.
12
DEFENSE COUNSEL: No redirect, your Honor.
13
COURT: Thank you, Mr. Diaz.
Direct Questioning of Defense Expert, Nikhil Singh, PhD
14
DEFENSE COUNSEL: Good afternoon, Mr.Singh. By whom are you employed?
15
DR. SINGH: I am a professor of Forensic Science at the University of Boerum.
16
Q: Can explain how one expert can testify that he or she is absolutely certain that a latent print
17
matches an individual and yet another expert might say that he or she is uncertain?
18
A: It’s actually quite easy and happens all the time. Just because one expert believes that a
19
latent print matches a known print does not mean that they do, in fact, come from the same
20
person. All that means is that, to the best of that examiner’s ability, he believes that the two
21
prints come from the same person.
22
Latent fingerprint experts testify all the time to absolute certainty. But being absolutely
23
certain that a latent fingerprint matches a known print is not scientifically plausible.
24
Q. Are you saying that a latent fingerprint examiner is lying when they testify to absolute
25
certainty?
26
A. Lying? No. I am sure that they believe that they have absolutely, positively matched the
27
latent print to the known print. They say that because they think that the premise that each
28
fingerprint is unique automatically means that a single latent fingerprint could never appear to
29
come from more than one finger. But in fact, when you include human limitations and real-
54
1
world contamination, a latent fingerprint could appear to come from more than one known finger
2
even though there is only one finger that actually left the latent print.
3
Q. Are you saying that latent fingerprint may not match a known fingerprint because
4
fingerprints are not unique?
5
A. No, absolutely not. To the best of our knowledge, the three-dimensional ridges found on a
6
finger are unique. But we need to be very careful about what we are talking about. A latent
7
fingerprint is not the same thing as what is on a person’s finger, which is what I think you’re
8
referring to when you talk about a known print. For example, a rolled fingerprint, where a finger
9
with ink is carefully rolled from side-to-side against an index card, is a very good two-
10
dimensional representation of the three-dimensional ridges on a finger. But even two different
11
rolled prints, from the very same finger, are, scientifically speaking, unique.
12
Just because each rolled print is, in some sense unique, however, does not necessarily mean
13
that we can distinguish one from another without a sufficient number of very fine details. The
14
uniqueness of fingerprints does not mean that an examiner can positively match a latent print to a
15
known print to the exclusion of all other prints in the world. The best he can say is that the latent
16
is very close to the known print.
17
Q. What do you mean by very close? If a latent print matches a known print, then they must
18
come from the same finger, correct?
19
A. No that is not necessarily correct because you can never have a latent that 100 percent
20
matches a known print match. A latent fingerprint is usually only a very small part of a full
21
fingerprint, usually only 20 percent. Latents are also subject to contaminants, like dirt and grime
22
and dust, and stretching and a whole host of other issues that I think have already been discussed.
23
All of these things can cause what would otherwise not be a matching point to become a
24
matching point, and vice versa.
25
Depending on the quality of the print and the uniqueness of the points that are identified on
26
the latent, a latent fingerprint, if it were compared to all fingerprints in the world, in many
27
instances, would very likely appear to match several different known prints, even though there is
28
only one real finger that actually left the latent. The more of the latent print you can match to the
29
known print, all other things being equal, the more confident you can be that the latent print
30
could have come from a particular known print. But you can’t know for sure that it could not
31
also appear to have come from some other print.
55
1
Unless the latent print is a truly perfect reproduction of the original finger, which it never is,
2
the best an expert could do is say which individuals he thinks the print is not from and which
3
individuals appear, given the information he has, most likely to be the source of that print.
4
The real issue with latent fingerprints then is when a latent fingerprint examiner says a latent
5
fingerprint matches a known fingerprint, what does this mean? Does this mean that the two are
6
in fact a match? No, because they are two different things—a latent print and a known print.
7
What it means is that the two prints likely came from the same finger. Unfortunately we don’t
8
know the number and quality of matching points that create strong likelihoods of matching
9
versus the quantity and quality that create poor likelihoods of matching.
10
There have been some attempts to come up with these numbers but there needs to be more
11
research here.
12
Q. Can a latent fingerprint appear to come from a known print and yet actually be from a
13
different finger?
14
A. Yes. It is possible for a latent fingerprint to have no obvious discrepancies with a known
15
print and have several points that match the known print and yet still not have come from that
16
finger.
17
Q. Can you please explain how this can happen?
18
A. Sure. Let’s assume, for arguments sake, that there are 100 points on any given finger. The
19
arrangement of those 100 points on a finger is completely random and that is why we say that
20
fingerprints are unique.
21
However, let’s start with a latent fingerprint with two identifiable points. Let’s say you have
22
a swirl and a dot 5 millimeters apart. Out of the roughly 65 billion fingers in the world—that is,
23
10 fingers for roughly 6.5 billion humans on earth—there will be a very large subset of these
24
fingers that have a swirl and a dot 5 millimeters apart. For the purposes of illustration, let’s say
25
there are 30 billion fingers that have swirl and a dot 5 millimeters apart somewhere on the finger.
26
This is where the probabilities come in. If we find a latent fingerprint with this configuration,
27
before we take into account other factors, the best we could ever do is eliminate the 30 billion
28
fingerprints that do not have a swirl and a dot arranged like this.
29
Now let’s add a third point, for example an island 2 millimeters to the right of the dot. With
30
this arrangement, there will be a smaller subset of fingers than the first set that have an
31
arrangement like this, maybe only 20 billion fingers. If you continue with this argument you can
56
1
see that as you add information you continuously narrow down the number of potential matching
2
fingers.
3
Q. Are you saying then that some kind of minimum numbers standard should be required?
4
A. A pure minimum numbers standard? Probably not. Fingerprint examiners are correct that
5
the quality of the fingerprint matters just as much as the quantity of matching points. The reason
6
for this is because as you lower the quality of the print, you introduce more noise, which can lead
7
to both more false positives and more false negatives. That is, noise and uncertainty makes it
8
more likely to miss what might otherwise be a strong match and also to think that something is a
9
match but, without the noise, would clearly not be a match.
10
Q. Can you explain what you mean by noise?
11
A. When a latent fingerprint is distorted, or overlaps with other fingerprints, or when small
12
specs of dirt get in the way, or when the person’s pressure when they left the print wasn’t
13
uniform, all of these things add noise to the latent fingerprint. And given all this noise, more and
14
more prints will appear to be a match, and this will make it impossible for an examiner to say
15
with absolute certainty that a latent print matches one known print, as opposed to another known
16
print that appears to be a match due to the noise and distortion.
17
Q. So is noise the only reason why a latent fingerprint examiner, if he looked at all the prints in
18
the world, could find a latent fingerprint that matches more than one known print?
19
A. There are other reasons why this could happen. In addition to noise, which is independent of
20
the examiner, the examiner is a human being and can make mistakes.
21
An examiner may look at a point on a latent fingerprint and say there’s a match with a point
22
on the known print. But in reality, the two points are not always exact matches, maybe because
23
the point on the latent is slightly wider than the point on the known print. One examiner might
24
say it is slightly wider because of distortion and thus is really the same point despite the apparent
25
differences in width. Another examiner might say that he can’t tell if it’s wider because of
26
distortion or he might conclude that the point appears wider because it actually is wider. So this
27
examiner might ignore that point.
28
Also, an examiner could just have a bad day and think there’s a match when there isn’t one.
29
Unfortunately, like the other probabilities involved in latent fingerprint matching, the error rates
30
for examiners have not been adequately explored. There have been some tests that show a very
31
high error rate, as high as 20%. Then again, other studies have suggested a much lower error
57
1
rate, maybe 1-2%. In either case, examiner error rates appear to be much higher than the latent
2
fingerprint community lets on.
3
Q. Are you aware of the verification step in the ACE-V process?
4
A. Yes I am.
5
Q. Does verification by a second, or sometimes third, examiner significantly reduce error rates?
6
A. It’s hard to say, but there are many reasons to think that it does not reduce error rates all that
7
much.
8
Q. Can you please explain why it would not reduce error rates very much?
9
A. There are two issues. The first is confirmation bias. When a verifying examiner reviews the
10
conclusions of the first examiner he is not blind to the first examiner’s findings. He knows he is
11
comparing a latent fingerprint to a known print and that one of his colleagues has said these two
12
prints match. A print only gets to the verifying examiner if the first examiner finds a match.
13
That fact alone, that another examiner found a match, creates a bias. There are numerous studies
14
that show that confirmation bias is a real problem for all people, including experts.
15
If you think about it, confirmation bias makes intuitive sense. When you meet someone for
16
the first time, your views about that person are very different when you’ve never heard anything
17
about that person before, compared to when one of your friends or family has already told you
18
something about him or her. With the verifying examiner in ACE-V, the examiner who first
19
examined the prints is usually a coworker, probably a friend, often a person whose reputation the
20
verifying examiner knows is good, and the verifying examiner also knows that if the other
21
examiner’s results are constantly being questioned then that person is not going to be an
22
examiner for very long. All of these factors, plus the natural human tendency to have one’s own
23
conclusion influenced by other people’s conclusions, lead to an unconscious bias in favor of
24
confirming the first examiner’s results.
25
Q. You said there are two issues with the verification step?
26
A. Yes. The second problem with the verification step, which ties in to the bias issue, is more
27
structural. A lot of people argue that verification reduces errors because when you have multiple
28
examiners independently review the match, the chance of error gets smaller and smaller. The
29
argument is that an error could only occur when two, or three, examiners each make an error,
30
which has to be much smaller than a single examiner making an error. This argument would be
58
1
true if each examiner were actually making an independent examination. But that’s not what is
2
happening in the verification step.
3
The second examiner does not do a completely independent examination, comparing the
4
latent print to all possible prints in the world and then finding the best match or matches. Instead
5
the second examiner just looks over the first examiner’s work and says whether or not he agrees
6
there’s a match. But, and here’s the subtle problem, unless the first examiner did a completely
7
terrible job, the second examiner is almost always going to agree because the latent print will in
8
fact look very close to the known print. If it weren’t close, the first examiner never would have
9
called it a match to begin with. Because the examiners are in the same department, and thus
10
working under similar training and standards, combined with the bias problem I described, it’s
11
very unlikely that the second examiner will disagree after a first examiner finds a match. There’s
12
so much reason to think that it is a match.
13
These problems do not exist if the verification were truly an independent examination. If it
14
were, in that case, then we could say that the combined error rate of two examiners is the error
15
rate of one examiner multiplied by the error rate of the second examiner, which would be very
16
small. In the way verification is done in the ACE-V process, the combined error rate is not the
17
two error rates multiplied by each other, because they are not independent.
18
This is the reason why scientific studies are always done with double-blind experiments and
19
true independent examinations. It is also the same reason why, when you were in law school,
20
your professor graded your examination without knowing who you were. Eliminating biases and
21
creating independent examinations are the goals. The verification step in the ACE-V process
22
suffers from biases and is not truly independent.
23
Q. Can you please describe what a true independent verification would look like?
24
A. I can try. What a true independent verification would look like is you have one examiner
25
compare the latent fingerprint against all of the known prints and find the one print, ideally more
26
than one, that the examiner believes is a strong match. The second examiner would then repeat
27
that process blind, that is without knowing what the first examiner found. If both examiners
28
came up with the same match, then you could confidently say that the probability of there being
29
an error in the combined process of two examiners is the probability that both examiners
30
individually made an error, which would be much smaller than the error by a single examiner.
31
DEFENSE COUNSEL: Nothing further.
59
****
1
Cross Exam of Defense Expert, Nikhil Singh, PhD
2
ASSISTANT U.S. ATTORNEY: Dr. Singh, are you aware of two people ever having identical
3
fingerprints?
4
DR. SINGH: No. But . . .
5
Q. Are you aware of two people ever having identical latent fingerprints?
6
A. That question doesn’t make sense because people don’t have latent fingerprints, they have
7
fingers, which leave behind copies. Oftentimes the copies are latent prints because they are not
8
visible to the eye.
9
Q. Ok . I’ll rephrase. Are you aware of two people ever leaving behind identical latent
10
fingerprints?
11
A. Completely identical in every single respect? No, I am not aware, but as I’ve testified it
12
could happen.
13
Q. But you have never heard of it happening before?
14
A. No I have not.
15
Q. Out of the thousands of fingerprint identifications testified to in courts, how many, that you
16
know of, have been proven false?
17
A. That are documented, dozens.
18
Q. Out of thousands, only dozens?
19
A. That I am aware of.
20
Q. Do you believe that latent print experts, given their training, skill, and experience, are more
21
qualified than lay individuals to identify a match between a latent print and a known print?
22
A. They are certainly more qualified than a lay person. It’s just not clear how much more so.
23
Q. But they are more qualified?
24
A. Yes.
25
Q. From your research, isn’t it true that for fingerprint experts that have testified in the past,
26
almost everyone was never shown to make a false positive before testifying?
27
A. Well, that is technically true, but . . .
28
Q. Thank you. So how can you testify that latent fingerprint evidence has no identification
29
value?
30
A. Well that’s not my testimony.
60
1
Q. So you believe that a latent print identification has some identification value?
2
A. I think they do have some value; I’m just not sure how much.
3
ASSISTANT U.S. ATTORNEY: That’s all I have your Honor.
4
DEFENSE COUNSEL: Nothing further by the defense.
5
COURT: Thank you Dr. Singh, you may step down. Counselors, does this conclude the
6
testimony before the court on the fingerprint issue?
7
DEFENSE COUNSEL: That is all for the defense your Honor.
8
ASSISTANT U.S. ATTORNEY: Yes, your Honor, with the addition of the stipulated testimony
9
by Agent Meagher.
10
COURT: Yes, of course. Well it has been a long day of testimony, so we are going to adjourn
11
until tomorrow for the hearing on the admissibility of the autopsy report. As agreed, in lieu of
12
oral arguments, both parties will be submitting memoranda on the fingerprint issue to the court
13
by the end of the week. See you tomorrow at 9:30.
61
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF BOERUM
------------------------------------------------------------X
UNITED STATES OF AMERICA
08-CR-335892 (NJT)
—against—
MICHAEL MORRISON,
Defendant.
TRANSCRIPT OF HEARING ON
MOTION IN LIMINE BEFORE THE
HONORABLE NATHAN TUSAMBE,
CHIEF JUDGE, UNITED STATES
DISTRICT COURT
------------------------------------------------------------X
August 4, 2009
APPEARANCES:
For Government
Assistant United States Attorney, Michelle Davis
386 Federal Plaza
Yorkville, Boerum 11201
For Defendant
Hart, Gilroy & Klein, LLP
Joseph M. Gilroy
935 Seventh Avenue
Green Hook, Boerum 11203
Court Reporter
Patricia Atkins
368 Federal Plaza
Yorkville, Boerum 11201
62
*** [DAY 2 OF HEARING] ***
1
CLERK: United States v. Michael Morrison. Please state your appearances for the record.
2
ASSISTANT U.S. ATTORNEY: Michelle Davis for the government.
3
DEFENSE COUNSEL: Joseph Gilroy of Hart, Gilroy & Klein, LLP, for the defendant, Michael
4
Morrison.
5
COURT: Good Morning. Having concluded the Daubert hearing on the fingerprint issue
6
yesterday, I will now hear argument on Defendant’s motion to exclude the 1987 autopsy report
7
prepared by now deceased Medical Examiner, Martina Phelps. Please be brief. I have reviewed
8
both of the parties’ very comprehensive memoranda. In my view, the only issue is whether the
9
report is testimonial under the Supreme Court’s decisions in Crawford and Melendez-Diaz. Mr.
10
Gilroy would you like to be heard?
11
DEFENSE COUNSEL: Yes, thank you, and good morning, your Honor. At this time, I would
12
like to offer Boerum General Health Code, Title 6, Sections 721, 725 and 730 as Court Exhibit 3.
13
COURT: Ms. Davis, have you examined these statutes?
14
ASSISTANT U.S. ATTORNEY: Yes, your Honor. The Government has no objection.
15
COURT: Thank you. Let the record show the admission of Court’s Exhibit 3, Boerum General
16
Health Code, Title 6, Sections 721, 725 and 730. Is that all Mr. Gilroy?
17
DEFENSE COUNSEL: No, your Honor. The admission of the 1987 autopsy report created by
18
Dr. Phelps is a testimonial record under Crawford, Davis, and Melendez-Diaz.
19
COURT: But wasn’t the report at issue in Melendez-Diaz an affidavit setting forth the nature and
20
weight of a tested substance believed to be cocaine?
21
DEFENSE COUNSEL: Yes, your Honor, that was the evidence at issue in Melendez-Diaz.
22
Nonetheless, the teaching of Crawford is that when the government creates hearsay evidence
23
against a defendant with an eye toward using that evidence at trial, the hearsay declarant must
24
testify at trial. Here, we have exactly what the court was concerned about in Crawford. For all
25
practical purposes, the medical examiner is a member of law enforcement. As I’ve described in
26
my motion, Dr. Phelps performed the autopsy on Roxy Starr to determine the cause of her death.
27
In the state of Boerum, medical examiners have a statutory duty to report deaths caused by
28
criminal activity. Thus, like any reasonable medical examiner, Dr. Phelps knew that her report
29
could be used at trial. The government’s entire case rests on the conclusions of the autopsy
30
report. Without it, there is no case. To admit this report would allow in government-created
63
1
hearsay evidence that is essential to its case without any cross-examination of the declarant. This
2
strikes at the very essence of the Confrontation Clause. In conclusion, I would stand on the
3
arguments made in our memorandum of law and ask this court to preclude the autopsy report
4
created by Dr. Phelps. Thank you, your Honor.
5
COURT: Mr. Gilroy, are there specific concerns as to the qualifications of Dr. Phelps? As she
6
practiced in Boerum for over twenty years, I observed her in my courtroom on several occasions
7
and have always approved her as an expert.
8
DEFENSE COUNSEL: No, Judge. The defense will stipulate that she was a qualified expert.
9
COURT: Ms. Davis, is it really necessary to admit the substance of this report into evidence? Is
10
there another way to introduce the relevant evidence without implicating the Confrontation
11
Clause?
12
ASSISTANT U.S. ATTORNEY: Good morning, your Honor. This report is critical to the
13
government’s case, and there is no other way to establish the evidence it provides. Roxy Starr’s
14
remains were cremated over twenty years ago, and Boerum’s Chief Medical Examiner’s Office
15
discards stored toxicology samples after 4 months and discards stored organs or tissue after 4
16
years. There is absolutely no way to replicate the tests that Dr. Phelps performed.
17
COURT: All right, I’ll hear your argument.
18
ASSISTANT U.S. ATTORNEY: Thank you, your Honor. The 1987 autopsy report prepared by
19
Dr. Phelps should be admitted because it is not testimonial. The defense oversimplifies
20
Crawford. The Supreme Court was not just concerned with government-created evidence in the
21
abstract, but rather, government-created evidence that is testimonial. Melendez-Diaz simply
22
added that when law enforcement agents prepare an affidavit about the nature and weight of a
23
tested substance, that affidavit is testimonial. Here this is no affidavit as demonstrated in our
24
memoranda and the report by itself is simply not testimonial. Moreover, the medical examiner
25
here was not an agent or employee of law enforcement. She worked for the Office of the Chief
26
Medical Examiner, an office completely independent from the prosecutors and the police. There
27
was no ongoing criminal investigation at the time of the autopsy nor was anyone charged at that
28
time. In fact, the autopsy report was not even given to law enforcement because no criminal
29
activity was suspected. Put simply, Dr. Phelps had no reason to believe, nor would any
30
reasonable medical examiner, that her report was being prepared for use at a criminal trial. For
64
1
this and the many other reasons set forth in the Government’s brief, the autopsy report is not
2
testimonial.
3
COURT: Ms. Davis, you are aware that even prior to Melendez-Diaz, some courts have excluded
4
autopsy reports if the medical examiner was not present to be cross-examined?
5
ASSISTANT U.S. ATTORNEY: Yes, your Honor, I understand that. However, Melendez-Diaz
6
clarified that the Supreme Court is concerned with affidavits prepared by law enforcement with
7
an eye toward prosecution. The autopsy report just does not fall within that description.
8
Moreover, the policy concerns detailed in the Government’s memorandum stress why it is so
9
important that this evidence be admitted. I’d like to briefly reiterate our most significant
10
concern, which is the effect that barring autopsy reports under these circumstances will have on
11
cold homicide investigations. Occasionally, it takes a considerable amount of time to prosecute a
12
murder, and in the case of cold investigations, the autopsy report may be the only way for the
13
government to prove cause of death. For example, the body may have been released, or
14
cremated, as was the case here, and cannot be re-examined. The defense concedes the
15
importance of this autopsy report, acknowledging that it is virtually the only way to prove cause
16
of death in this case. While in most cases, the medical examiner who performed the autopsy will
17
likely be available to testify, there are times, as here, when the medical examiner will be
18
legitimately unavailable. The Medical Examiner’s Office has very high turnover, and in
19
particularly old cases, the medical examiner may have died by the time the government locates
20
and captures the perpetrator, which is indeed what happened here. The government has a
21
compelling interest in prosecuting murders, as evidenced by the fact that there is no statute of
22
limitations on murder. Murderers should not be rewarded for covering up their crimes long
23
enough for the medical examiner to die or retire from office. Although a significant period of
24
time has passed in this case, this issue could also come up in cases where an investigation has
25
gone nowhere for a year, but the body is no longer available. To conclude, your Honor, the
26
autopsy report is not testimonial, and to rule otherwise would create an impenetrable obstacle to
27
prosecution of open homicide cases. Thank you.
28
COURT: Thank you both. If neither party wishes to be heard further, this concludes the hearing
29
on Defendant’s motion in limine, for both the fingerprint and autopsy report admissibility issues.
30
I am adjourning this case for two weeks for decision. Given the volume of lengthy and technical
31
testimony before the court on the fingerprint issue, as well as the extensive memoranda before
65
1
the court on both issues, I think this recess is necessary for a thorough review. Thank you for
2
your patience, and I will see you both in two weeks.
66
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF BOERUM
------------------------------------------------------------X
UNITED STATES OF AMERICA
08-CR-335892 (NJT)
—against—
TRANSCRIPT OF DECISION ON
MOTION IN LIMINE
MICHAEL MORRISON,
Defendant.
------------------------------------------------------------X
August 18, 2009
APPEARANCES:
For Government
Assistant United States Attorney, Michelle Davis
386 Federal Plaza
Yorkville, Boerum 11201
For Defendant
Hart, Gilroy & Klein, LLP
Joseph M. Gilroy
935 Seventh Avenue
Green Hook, Boerum 11203
Court Reporter
Patricia Atkins
368 Federal Plaza
Yorkville, Boerum 11201
67
1
CLERK: United States v. Michael Morrison. Please state your appearances for the record.
2
ASSISTANT U.S. ATTORNEY: Michelle Davis for the Government.
3
DEFENSE COUNSEL: Joseph Gilroy of Hart, Gilroy & Klein, LLP, for the defendant, Michael
4
Morrison.
5
COURT: Good morning, Dr. Morrison, counsel. After careful consideration, I have reached a
6
decision on Defendant’s motion in limine seeking to preclude the admission of latent fingerprint
7
evidence and seeking to preclude the 1987 autopsy report prepared by Dr. Martina Phelps. I am
8
granting the motion to exclude as to both the fingerprint evidence and the autopsy report. I have
9
drafted a written opinion as to the fingerprint admissibility issue, which I am handing over to
10
counsel now. As for the autopsy report admissibility issue, I will be ruling from the bench,
11
unless there are any objections?
12
DEFENSE COUNSEL: No objection, your Honor.
13
ASSISTANT U.S. ATTORNEY: That’s fine with me, your Honor.
14
COURT: As the Supreme Court has noted in Crawford v. Washington, the policy underlying the
15
Confrontation Clause is to protect a defendant’s right to cross-examine the prosecution’s
16
witnesses. Consequently, the Supreme Court has mandated that with respect to certain types of
17
hearsay evidence denominated testimonial, the declarant must testify unless he or she is
18
unavailable and the defendant had a prior opportunity to cross-examine that witness. While there
19
may be unanswered questions regarding what constitutes testimonial hearsay, the Supreme
20
Court’s opinion in Melendez-Diaz indicates that a forensic report like the autopsy report at issue
21
here is testimonial and is therefore inadmissible because Dr. Phelps is not available for cross-
22
examination and defendant had no prior opportunity to cross-examine her. Like the certificate at
23
issue in Melendez-Diaz, the autopsy report was prepared, even though in the course of regularly
24
conducted business, for potential use at trial. Dr. Phelps was a state employee and had a
25
statutory duty to report criminal activity to law enforcement. Accordingly, she knew, as any
26
other objective person would reasonably believe, that her report could ultimately be used at a
27
criminal trial, and indeed was required to create the report with an eye toward possible criminal
28
charges. As a matter of law, a medical examiner is quasi-law enforcement, and the autopsy
29
report is testimonial. Though I am troubled by the implications of this ruling on the ability of the
30
government to prosecute cold homicide cases, the Confrontation Clause requires that the
31
defendant have the opportunity to cross-examine the witnesses against him. Because Defendant
68
1
did not and cannot cross-examine Dr. Phelps, the motion in limine is granted, and the autopsy
2
report is thereby excluded.
3
ASSISTANT U.S. ATTORNEY: Your Honor, in light of this and your fingerprint ruling, we
4
would like a week’s adjournment to decide how to proceed.
5
DEFENSE COUNSEL: No objection, your Honor.
6
COURT: I would like a written notice of the Government’s plans in one week from today,
7
August 25, 2009, by the close of business. We will then proceed from there.
69
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF BOERUM
------------------------------------------------------------X
UNITED STATES OF AMERICA
07-CR-335892 (NJT)
—against—
OPINION and ORDER
MICHAEL MORRISON,
(August 18, 2009)
Defendant.
------------------------------------------------------------X
TUSAMBE, Chief Judge:
Before the court is Defendant’s Motion to Preclude the Government from introducing
latent fingerprint identification evidence under Federal Rule of Evidence 702 and under the
Supreme Court’s standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).1 Defendant and the
Government agreed by stipulation: (1) to present two experts each about latent fingerprint
evidence,2 and (2) to the uniqueness and permanence theories of fingerprints.3
After having considered the evidence and relevant law, the court hereby GRANTS the
motion to exclude expert testimony on latent fingerprint evidence.
Facts
Sometime in 1984, Defendant became the personal physician of Roxy Starr, an
international pop-music icon. Defendant lived with Ms. Starr aboard her yacht, the S.S. Rock
Starr. On May 15, 1987 Roxy Starr died suddenly. An autopsy was performed on Ms. Starr in
1
The other issue before the court on the motion in limine, the admissibility of the autopsy report, was
decided in a ruling from the bench on August 18, 2009, granting Defendant’s motion to exclude.
2
One of the United States’ experts was FBI fingerprint expert Agent Stephen Meagher through his
testimony in United States v. Baines, 573 F.3d 979 (10th Cir. 2009).
3
Uniqueness refers to the idea that all persons have unique fingerprints. Permanence is the theory that
fingerprints, absent injury, disease or surgery, are consistent throughout a person’s life.
70
the Medical Examiner’s Office for the State of Boerum. The Office had a duty to report any
deaths caused by suspected criminal activity to the District Attorney’s Office.4 In the autopsy
report, the examiner noted an enlarged heart, brain, lungs, and liver, and a narrowing of the
descending coronary artery. In addition, one undigested pill was found in Starr’s stomach; the
pill was tested and found to contain alphacol and cocaine in a ratio now known as “E2379.”5 A
toxicology analysis also found these substances in Ms. Starr’s blood and urine. The cause of
death was ultimately declared as Arteriosclerotic Heart Disease (heart attack). Because this was
considered a normal cause of death, it was not reported to the District Attorney. The medical
examiner Martina Phelps, M.D., who conducted the autopsy and authored the report, died on
April 13, 1996.
Though Ms. Starr’s body was eventually cremated at sea, her yacht was preserved as a
museum and left in the same condition it was on the day Ms. Starr died, with plexiglass walls
used to prevent visitors from entering the cabins or tampering with items. A copy of Starr’s
autopsy report made its way to the internet in June of 2008 and raised suspicions of several fans
who suspected that the alphacol/cocaine mixture in Starr’s body—not a typical heart attack—
caused her death. The FBI began reinvestigating Ms. Starr’s death in September 2008. The FBI
found a vial containing several pills of E2379. The FBI arrested Defendant after a latent
fingerprint was found on the vial, which was identified, using the ACE-V process, as
Defendant’s fingerprint. On December 16, 2008, Defendant was indicted on charges of second
degree murder and involuntary manslaughter.
4
06 BOR § 730.
5
The pill contained 52 percent cocaine and 48 percent alphacol.
71
BACKGROUND
Before turning to whether latent fingerprint evidence is admissible under Rule 702 and
Daubert, the court will first describe latent fingerprints and the FBI’s ACE-V process,
background information which is undisputed.
A.
Fingerprints and Latent Fingerprints
Fingerprints are impressions left when the “friction ridges” of fingers make contact with,
and deposit skin oil on, a surface. The term “friction ridge” refers to contours on the skin’s
surface, which increase the finger’s friction with objects. (See R. at 11.) See also United States
v. Mitchell, 365 F.3d 215, 220-21 (3d Cir. 2004).
The structure of friction ridges is described as having three levels of detail. Level 1
detail, which is visible with the naked eye, refers to the pattern of the friction ridges. There are
three standard patterns: loops, arches, and whorls. Level 2 detail involves “ridge
characteristics.” These are points where ridges begin and end, join and divide, and corresponding
patterns formed by these points. A typical human fingerprint is believed to have between 75 and
175 ridge characteristics. Level 3 details are microscopic variations in the ridges themselves,
such as slight meanders of the ridges and the locations of sweat pores. Mitchell, 365 F.3d at 22021.
Criminals generally do not leave behind full fingerprints on clean, flat surfaces. Rather,
they leave behind fragments of fingerprints, which are called “latent prints.” Latent prints are
rarely visible to the naked eye until dusted or otherwise revealed. In addition, a typical latent
print is generally only a small fraction–“perhaps 1/5th–of … a full fingerprint.” Id.
In contrast, “full” or “rolled” fingerprints are made by intentionally rolling the full
surface of the fingertip onto a fingerprint card or a digital fingerprint scanner. A full set of rolled
fingerprints on a card–taken during a police booking, for example–is known as a “ten-print
72
card.” Id. These prints are also called “known prints” because they are intentionally recorded in
a structured way and positively linked to the identity of the person to whom they belong.
Latent prints are subject to distortions caused by variations in pressure and movement as
the finger touches a three-dimensional surface. Distortions can also be caused by external
factors, such as dirt, other fingerprints, or any information inadvertently introduced as the latent
print’s image is captured and processed by an examiner. Though both latent and rolled prints can
suffer from distortion, the problems are significantly more acute in latent prints because they are
incomplete and left more carelessly than full, rolled prints. Id.
For example, unlike rolled prints, latents are most often left on irregular surfaces. These
surfaces may have also have been touched by other fingers. In addition to these problems, other
problems with latents include blurring, smudging, contamination with particles, and/or partially
overlapping with the impressions of multiple fingers. Id. All of these factors add “noise” to the
latent print, which is almost completely absent in rolled prints.
B.
The ACE-V Process
FBI latent fingerprint examiners use the ACE-V process to determine if a latent print
matches a known print. The letters of “ACE-V” stand for the four steps in the process: (1)
Analysis, (2) Comparison, (3) Evaluation, and (4) Verification. (See R. at 29-33.) See also
United State v. Baines, 573 F.3d 979, 983 (10th Cir. 2009).
In the first step, analysis, the examiner looks at the latent print and the known print
separately. The purpose of this step is to discern characteristics at all three levels of detail, and
to evaluate the quality and quantity of information on each print. The examiner may find a
disparity in characteristics between the latent and the known that compels the conclusion that the
prints cannot be a match. For example, the examiner may find a ridge characteristic on the latent
73
print but the same characteristic is not on the known print. In this case, the known print should
be excluded if the differences cannot be explained by, for example, distortions. The examiner
may also determine that the latent is of too poor a quality and simply reveals too little
information to provide a fruitful examination. “If, however, the examiner determines that there
is nothing to exclude the possibility of a match, and that the quantity and quality of the
information is sufficient, then the examiner moves to the [comparison] step.” Baines, 573 F.3d
at 983.
Comparison consists of a side-by-side examination of the latent print and the known
print. At this stage, the examiner is merely determining if it is possible for there to be a match
between the known print and the latent print. If it appears possible that they might match, the
examiner goes to the third step, evaluation. During the evaluation step, examiners use their
subjective skill to reach a conclusion as to whether there is a match or not. Id.
In the verification stage, the final stage, a second examiner analyzes the latent print that
the first examiner reviewed. The second examiner, who is a colleague, does not conduct a
“blind” review of the first examiner’s conclusion. Instead, the second examiner is presented with
the first examiner’s notes and other work product. Id.
LEGAL ANALYSIS
For over 100 years, law enforcement agencies throughout the world have used latent
fingerprints to identify criminal suspects. Over this period, courts have accepted latent print
evidence as sufficiently reliable without giving the issue much thought. See, e.g., Robert
Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint “Science” is Revealed, 75 S. Cal.
L. Rev. 605, 605 (2002). So one might ask how a defendant could expect to mount a realistic
challenge to the reliability of this evidence when it has been generally accepted as reliable by
courts for over a century. The answer is simple. As new ideas take hold, courts may need to
74
reevaluate in new light evidence that was once interpreted one way (or simply ignored). Before
Copernicus and Galileo we believed that the earth was flat and was circled by the sun.
Before Daubert courts believed, almost without question, that latent fingerprint evidence was
reliable. See, e.g., Jennifer L. Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67
Brook. L. Rev. 13, 61 (2001). After Daubert, when new questions of reliability arise, a court is
required to take a fresh look.
Decisions admitting latent fingerprint evidence prior to Daubert carry little to no weight.
See, e.g., United States v. Cordoba, 104 F.3d 225, 228 (9th Cir. 1997). It is true that the seven
circuit courts that have addressed this issue have found that latent fingerprint evidence satisfies
Daubert. See, e.g., United States v. Baines, 573 F.3d 979 (10th Cir. 2009); United States v.
Mitchell, 365 F.3d 215 (3d Cir. 2004); but see State v. Rose, No. K06-0545 (Md., Balt. Co. Cir.
Oct. 19, 2007) available at http://www.baltimoresun.com/media/acrobat/2007-10/33446162.pdf
(holding latent fingerprint evidence inadmissible as a matter of law). But as the Fourteenth
Circuit has not yet addressed this issue, these decisions, though persuasive, are not binding on
this court.
A.
Rule 702 and Daubert
Expert testimony is admissible in federal court only if it “will assist the trier of fact to
determine a fact in issue” and “(1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.” Fed. R. Evid. 702. Daubert held that
because the firsthand knowledge requirement (which increases reliability) is “relaxed” with
expert testimony, Rule 702 creates a high standard of admissibility for expert evidence, 509 U.S.
75
at 592, with the burden of establishing reliability on the proponent of the evidence. See Baines,
573 F.3d at 985.
A “trial judge [as gatekeeper] must ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589. “In a case
involving scientific evidence, evidentiary reliability will be based upon scientific validity.” Id. at
590 n.9 (emphasis supplied). Finally, “Daubert’s general holding . . . applies not only to
testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other
specialized’ knowledge.” Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); see
also Fed. R. Evid. 702. Thus, whether latent print evidence is based on science or technical
know-how, the same analysis applies.
Daubert suggested five factors, though not necessarily exhaustive or “a definitive
checklist,” to determine whether proposed expert evidence is based on sufficient data and
reliable methods and principles:
(1) whether the particular theory can be and has been tested;
(2) whether the theory has been subjected to peer review and publication;
(3) the known or potential rate of error;
(4) the existence and maintenance of standards controlling the technique’s operation;
and
(5) whether the technique has achieved general acceptance in the relevant scientific
or expert community. 509 U.S. at 593-94.
“[A] trial court should consider the specific factors identified in Daubert where they are
reasonable measures of the reliability of expert testimony.” Kumho Tire, 526 U.S. at 152. As
the Daubert factors are reasonable measures of reliability for latent print evidence, see, e.g.,
Baines, 573 F.3d at 985, the court will begin the analysis with Daubert. Before applying
76
Daubert, however, the issue regarding latent fingerprint identification evidence must be defined
precisely.
B.
Latent Fingerprint Issue
If latent prints are unique, we might assume that a fingerprint expert should be able to
reliably match a latent print to its source. This assumption would be wrong, however, as
uniqueness does not actually take us very far in the analysis. The uniqueness of fingerprints does
not guarantee that fingerprints can be reliably identified. The issue is whether latent fingerprint
examiners can reliably match a latent print to its source finger within an acceptable degree of
accuracy. This issue however encompasses several sub-questions.
Even if a complete latent print is unique, a less-than-full latent may not be unique.
Therefore, the first question that must be answered is: how much of a latent print must be
identified for it to remain unique? Must the latent be the same size as the source finger? Or, if a
lesser amount suffices, how much less? (See R. at 56-57.) The next question is: what effects do
distortions and real-world contaminants have on any examiner’s ability to match a latent to a
known print? As you add “noise” to and, thus modify, a latent, the latent begins to lose its
uniqueness and, depending on the extent of the noise, can appear to have come from one of
several known fingers. (See R. at 57.) The final question is: just how accurate are fingerprint
examiners when they conclude that they have “matched” a latent print to a known print? Even if,
in theory, a latent print could be matched to one and only one source finger, in practice, human
beings may not be as accurate as the theory assumes. (See R. at 33.) All of these interrelated
empirical questions must be answered to determine whether latent fingerprint identification
evidence is reliable.
77
C.
Analysis
1. Testing
“The first and most significant Daubert factor is whether the proffered opinion has been
subjected to the scientific method,” which requires making and verifying predictions. Cummins
v. Lyle Indus., 93 F.3d 362, 368 (7th Cir. 1996); Daubert, 509 U.S. at 593. See also NATIONAL
RESEARCH COUNCIL OF THE NATIONAL ACADEMIES, STRENGTHENING FORENSIC SCIENCE IN THE
UNITED STATES: A PATH FORWARD 112-13 (Nat’l Academic Press 2009) [hereinafter Nat’l Acad.
Report].6 Here, as explained above, there are several questions that must be answered to
determine the overall reliability of latent print identification evidence.
Testing requires that an expert’s testimony be based on sufficient data. Fed. R. Evid.
702. Thus, our first concern is how much of a latent print is sufficient for an examiner to make a
reliable match. A full-sized latent print may be unique. But the uniqueness of a full-sized print
does not guarantee the uniqueness of a less than full print. (See R. at 55-56.) See also Nat’l
Acad. Report 144. For example, it is well documented that fingerprints from different people
can share a limited number of ridge characteristics in common.7 So the smaller the latent print,
6
In 2005, Congress “authorized the National Academy of Sciences to conduct a study on forensic science
. . . .” Nat’l Acad. Report 1. “In the fall of 2006, a committee was established by the National Academy
of Sciences . . . [with persons including] members of the forensic science community, members of the
legal community, and a diverse group of scientists.” Id. at 2. The Report was commissioned because it
was recognized that DNA technology, while improving forensic evidence, also revealed problems:
[I]n some cases, substantive information and testimony based on faulty forensic science analysis
may have contributed to wrongful convictions of innocent people. This fact has demonstrated the
potential danger of giving undue weight to evidence and testimony derived from imperfect testing
and analysis. Moreover, imprecise or exaggerated expert testimony has sometimes contributed to
the admission of erroneous or misleading evidence. Id. at 4.
7
“Israeli fingerprint examiners, for example, have found fingerprints from two different people that
contain seven matching ridge characteristics. As these examiners candidly acknowledge, ‘an expert with
many years of experience behind him’ could make a false identification when comparing two such
prints.” Epstein, supra R. 74, 75 S. Cal. L. Rev. at 611 (citing Y. Mark & D. Attias, What Is the
Minimum Standard of Characteristics for Fingerprint Identification?, 22 Fingerprint Whorld [sic] 148,
148, 150 (Oct. 1996)).
78
the greater is the risk of misidentification based on shared characteristics. Clearly then, tests must
be done to determine—or at least suggest—how much of a latent fingerprint is required to
reliably match it to its source finger. Is eighty percent sufficient? Twenty percent? Though this
issue fundamentally affects the accuracy of latent print examinations, there is virtually no
research in this area. See Nat’l Acad. Report 144.
Of course, the previous question—how much of a latent print is necessary to make a
match—starts with ideal, perfectly-clean prints. However, latents are rarely, if ever, clean. As
you degrade the quality of a latent print the print loses information, some of which may be
critical to the identification process. (See R. at 57.) Therefore, an important test of reliability
would be one that determines the effects of distortions and artifacts on an examiner’s ability to
reliably match a latent to its source. Alas, yet again, the latent fingerprint community’s answer
to this fundamental question is “we don’t know.” See Nat’l Acad. Report 144-45.
Despite the void of testing, the latent fingerprint community contends that issues on the
amount and quality of a latent that are necessary to perform a reliable match are immaterial and
subsumed by an examiner’s training and skill. Latent fingerprint examiners have no empirical
tests, however, to verify their supreme confidence in their own abilities. See id. Indeed, the
National Research Council’s study concluded that additional research is sorely needed in this
area. See id. Thus, there is no evidence to establish that examiner skill and training have
overcome the problems discussed above.
Undisputedly, as the quality of a latent diverges from a perfect, undistorted print, the
reliability of any match decreases. The extent of this decrease is, however, completely
unknown. The National Research Council acknowledged this uncertainty and stated that
“examiners can too easily explain a ‘difference’ as an ‘acceptable distortion’ in order to make an
79
identification.” Id. 145. Other critics have been less diplomatic. See, e.g., Epstein, supra R.74,
75 S. Cal. L. Rev. at 623-24. It is unacceptable that latent print examiners refuse to illuminate
the uncertainty in latent print evidence. See Nat’l Acad. Report 4. Instead, they assert that they
are the sole arbiters of reliability. Permitting latent examiners to continue in this fashion usurps
the court’s role as gatekeeper, which is simply unacceptable. Latent examiners may be prepared
to accept their own skill and judgment on faith alone; Daubert, however, demands more than
mere assertions of reliability. See Kuhmo Tire, 526 U.S. at 157.
Finally, the “human factor” must be tested as well. More so than many forms of expert
testimony, the latent identification process is highly dependent on the subjective conclusion of
the expert. See Nat’l Acad. Report 140-41. Thus the final critical test is one that examines the
inherent reliability of latent fingerprint examiners, both individually and as a community. Our
search for an answer to this question, however, would be in vain because whether a human being
can reliably match a latent fingerprint to its source has never been subjected to the type of
rigorous testing one would expect for such a critical tool of law enforcement. See id. 144-45.
The primary reason this test and the other above-mentioned tests have been not been performed
is the latent print community’s deliberate avoidance of rigorous proficiency tests. See, e.g.,
Jennifer L. Mnookin, The Validity of Latent Fingerprint Identification: Confessions of a
Fingerprinting Moderate, 7 Law, Probability & Risk 127, 134-5 (2008). Nevertheless, some
tests that mimic real-world conditions suggest that latent print examiners—despite their supreme
confidence—may be quite unreliable. See, e.g., RANDALL K. NOON, SCIENTIFIC METHOD:
APPLICATIONS IN FAILURE INVESTIGATION AND FORENSIC SCIENCE 32 (2009).
The Government argues that latent fingerprint examiners, though they have not been
subjected to controlled tests, have been subjected to the real-world testing of the adversarial
80
process. For the reasons discussed below, the adversarial process does not satisfy Daubert’s
testing requirement. See infra Part 7. Thus, on every one of the critical questions of reliability to
which latent fingerprint evidence must be subjected, there is a glaring deficit of testing.
2. Peer Review and Publication
The second Daubert factor is “whether the theory or technique has been subjected to peer
review and publication.” 509 U.S. at 593. ”[S]ubmission to the scrutiny of the scientific
community is a component of ‘good science [because it] increases the likelihood that substantive
flaws in methodology will be detected.” Id. While an absence of peer review is not affirmative
evidence of unreliability, the absence may suggest a lack of curiosity on the part of the relevant
community. Here, there is little evidence of peer review sufficient to support reliability. See
Baines, 573 F.3d at 990 (holding that, in the case of latent print evidence, the evidence of peer
review presented by the Government “falls short of the rigors demanded by the ideals of
science”). The Government argues that the verification step of the ACE-V process, if it is not
peer review in the narrow sense of Daubert, should be a relevant factor supporting reliability.
This argument is without merit as the ACE-V process suffers from several problems, including
concerns of bias. See Nat’l Acad. Report 122-24. (See also R. at 58-59.) Though it ultimately
concluded that latent print evidence was admissible under Daubert, the Tenth Circuit agreed that,
overall, the Government’s presentation of peer review was “too vague and sketchy . . . to assess
the nature of the professional dialogue” and “that the ACE-V process is not the independent peer
review of true science.” Baines, 573 F.3d at 990. The court agrees with this assessment.
3. Error Rate
Daubert next requires us to consider “the known or potential rate of error.” Daubert, 509
U.S. at 594. “The focus [of error]. . . must be solely on principles and methodology.” Id. This
81
issue is often related to the testing factor as the most important tests are usually those done to
establish empirical error rates. See id. at 593-94.
Daubert held that the existence of controlling standards and error rates are critical factors
in assessing reliability. See id. While we may excuse the absence of one or the other. it is very
hard to assess reliability when both controlling standards and error rates are lacking. When
error rates are well-defined, there is less need to scrutinize standards. See Lyn Haber & Ralph
Norman Haber, Scientific Validation of Fingerprint Evidence under Daubert, 7 Law, Probability
& Risk 87, 97 (2008) [hereinafter “Haber & Haber, Validation”]. This is because clearly defined
error rates provide to the fact-finder a framework with which to measure the probative value of
the evidence. Without error rates, a court and the jury cannot assess reliability beyond the bald
assertions of the expert.8
Here, the “method, and the performance of those who use [latent print evidence], are
inextricably linked, and both involve multiple sources of error.” See Nat’l Acad. Report 143.
Because a chain is only as strong as its weakest link, examiner error rates therefore become a
necessary component in assessing the overall reliability of latent evidence. See Haber & Haber,
Validation, supra, at 97.
The Government’s expert, Agent Meagher, attempts to split errors into “practitioner
error”—errors by examiners—and “methodological error”—errors in the absence of examiner
error. (R. at 33.) While Agent Meagher admits that “practitioners do make mistakes,” (id.,) he
goes further and makes the incredible assertion that “the methodological error . . . [has] a zero
8
For example, when a person flies on an airplane, the person’s fundamental concern is with the frequency
of crashes and not with the specific standards used to prevent crashes. See, e.g., United States v.
Santiago, 199 F. Supp. 2d 101, 112 (S.D.N.Y. 2002). If data on error rates are unavailable, however,
rigorous controlling standards, at a minimum, provide some indicia of reliability. Of course, controlling
standards must be highly indicative of reliability to overcome ignorance of error rates because, just as
airplane passengers are ill-equipped to appreciate the standards for commercial airplane pilots, juries are
rarely able to fully appreciate the standards of scientific or technical evidence.
82
error” rate. (Id.) In other words, Agent Meagher claims that, when the process is followed
perfectly, errors cannot occur. Notwithstanding Agent Meagher’s testimony, the error rate in the
absence of examiner error is most certainly not zero. Forensic DNA evidence, which is
significantly more reliable than latent fingerprint evidence, has error rates above zero. See Nat’l
Acad. Report 87, 142. Moreover, “an error rate must be demonstrated by reliable scientific
studies, not by assumption.” United States v. Crisp, 324 F.3d 261, 274 (4th Cir. 2003) (Michael,
J., dissenting). But, as is the case with most questions concerning latent print evidence, studies
to establish error rates are weak and flawed in design, analysis and conclusions. See Nat’l Acad.
Report 143-44, n.35.
The recent, high-profile case of Brandon Mayfield, accused and later exonerated for the
Madrid train bombings of 2004, is symptomatic of critical errors with latent fingerprint evidence.
See OFFICE OF THE INSPECTOR GEN. AND REVIEW DIV., U.S. DEP’T OF JUSTICE, A REVIEW OF THE
FBI’S HANDLING OF THE BRANDON MAYFIELD CASE, Mar. 2006, at 6-11, available at
http://www.usdoj.gov/oig/special/s0601/exec.pdf (acknowledging several sources of error in the
FBI’s latent fingerprint identification process). See generally Sarah Kershaw & Eric Lichtblau,
Spain Had Doubts Before U.S. Held Lawyer in Madrid Blasts, N.Y. Times, May 26, 2004. An
error of this magnitude, by three highly-credentialed and experienced latent fingerprint experts,
in an extremely high-profile case of international terrorism, is a startling example of significant
errors.
The dogmatic insistence of absolute certainty and the corresponding lack of selfexamination by the latent community validate the fear that error rates have not been examined as
carefully as they should be. As the National Research Council put it, the assumption by latent
print examiners “that the method itself, if followed correctly (i.e., by well-trained examiners
83
properly using the method), has zero error rate . . . [is c]learly . . . unrealistic, and moreover, it
does not lead to a process of method improvement.” Nat’l Acad. Report 143. However, that
report is far too generous in using the term “unrealistic,” given that examples of error are welldocumented.
In addition to the Mayfield case, there are numerous examples of fingerprint
identification errors. See, e.g., Simon A. Cole, More Than Zero: Accounting for Error in Latent
Fingerprint Identification, 95 J. Crim. L. & Criminology 985, 1070 T.1 (2005). The exposure of
errors has been growing at alarming rates. See, e.g., Richard Winton, Mistakes in Fingerprint
Analysis Trigger Review of Nearly 1,000 LAPD Cases, L.A. TIMES, Jan. 15, 2009. There are also
some reasons to suspect that other errors have merely escaped documentation. See Andre
Moenssens et al., SCIENTIFIC EVIDENCE IN CIVIL AND CRIMINAL CASES 516 (4th ed. 1995). In
light of these known, as well as unknown, errors, the uniform resistance in the latent fingerprint
community to quantifying error rates is unacceptable. If the latent print community is not
interested in improving its methodology, it certainly may decide not to do so. A court, however,
has no obligation to be complicit in this decision.
Beyond errors by examiners, we must also consider evidence of error rates in the absence
of explicit examiner error. (These can be considered errors inherent to all latent print evidence as
they are examiner-independent.) As discussed above, latent prints are only a small part of a full
print and are subject to contaminants (i.e., variation in quality). Thus, we must ask if there are
any empirical error rates that explain how variations in “quantity and quality” affect an
examiner’s ability to accurately match a latent to its source. As is the case with questions of
testing, the answer to this important question is largely unknown. Forensic DNA evidence
presents a stark contrast and highlights the uncertainty in latent print evidence.
84
When testifying to DNA evidence, a DNA expert will always testify about the “random
match probability.” The random match probability is the probability that the DNA of a person
taken at random could match the DNA being examined.9 This probability is the critical factor
supporting the reliability of DNA evidence. See Simon A. Cole, Grandfathering Evidence:
Fingerprint Admissibility Rulings from Jennings to Llera Plaza and Back Again, 41 Am. Crim. L.
Rev. 1189, 1196-97 (2004). Random match probabilities are necessary to assist the fact-finder in
understanding the persuasiveness of DNA evidence. See Fed. R. Evid. 702. Without these
probabilities, the fact-finder is ill-equipped to determine whether a DNA match is highly
probative or merely slightly probative. As assisting the trier of fact is a primary concern under
Rule 702, there is no reason why the latent fingerprint community should not also be required to
develop random match probabilities. See Nat’l Acad. Report 139-40 (finding that despite
differences with DNA, it “would be feasible” to develop these statistics for latent print
evidence).
Latent examiners present their conclusions with the certainty of science but
simultaneously ask for the flexibility of a subjective, technical profession. They cannot have it
both ways. Fingerprint examiners do not understand, or even attempt to understand, the errors
that permeate their field. Instead, examiners continue to assert that errors are effectively zero.
(R. at 33; R. at 50.) Daubert, however, requires more than mere assertion. See, e.g., United
States v. Santiago, 199 F. Supp. 2d 101, 112 (S.D.N.Y. 2002) (requiring as a threshold to
admissibility that a proffered expert on forensic bullet matching must establish how often the
expert’s “identifications have been wrong in the past”).
9
For example, in a population of 5 million people, if the random match probability is 1 in 1,000, the
number of people who could match the DNA by chance alone is 5,000. If the random match probability is
1 in 100,000, the number of potential suspects drops to 50.
85
As discussed above, it is possible to overlook some inadequacies in testing if controlling
standards present strong evidence of reliability (or vice-versa). But when error rates and
controlling standards are both inadequate, it is impossible to look the other way. Error rates in
latent print identifications are almost completely undefined and, as explained below, controlling
standards are woefully inadequate. See infra Part 4. The absence of controlling standards,
therefore, only strengthens the need for reliable error rates, which, as of yet, do not exist.
4. Controlling Standards
The fourth Daubert factor looks to “the existence and maintenance of standards
controlling the technique’s operation.” Daubert, 509 U.S. at 594. Controlling standards increase
reliability and the likelihood that independent examiners will reach the same conclusion. Even a
perfect theory will have little value if standards do not exist to prevent poor and inconsistent
application of the theory. Moreover, standards assist the fact-finder in assessing reliability, as
standards are often the only means by which a lay jury can determine whether the expert
properly applied the theory to the evidence. See, e.g., United States v. Cordoba, 991 F. Supp.
1199, 1205 (C.D. Cal. 1998). Thus, standards increase reliability, and a lack of standards often
suggests unreliability. See Nat’l Acad. Report 140.
There is a conspicuous lack of controlling standards in latent print evidence. The paucity
of standards is clearly exhibited by the expert testimony presented by both the Government and
Defendant in this case, as it highlights the subjective nature of latent fingerprint evidence and the
lack of uniformity from agency to agency and examiner to examiner.
86
During testimony, each expert was asked about a minimum number of points standard. 10
(See R. at 45-46; R. at 52; R. at 56-57.) Point standards were once widespread but have largely
fallen out of favor—at least officially—in the latent print community. (See R. at 23.) In keeping
with this trend, the experts here agreed that a point standard is not, and should not be, required.
(Id.) A minimum matching points standard, the argument goes, would handicap examiners. (See
R. at 23-24.) Instead, the experts agreed that an examiner’s decision should be guided by
intuition about a print’s quantity and quality. (See R. at 23.) Though, in theory, a minimum
point standard might provide some measure of reliability, in practice, it is clear that a minimum
point standard would do nothing to improve this evidence’s reliability.
The National Research Council recognized that latent fingerprint “examiners can too
easily explain a ‘difference’ as an ‘acceptable distortion’ in order to make an identification.”
Nat’l Acad. Report 145. Thus, a point standard is meaningless when there no objective standards
for defining what “points” are, or for deciding when points do or do not match. (See R. at 29,
41& 48.) See also Nat’l Acad. Report 139-41. Also persuasive in this regard is the Mayfield
case, where even a minimum requirement of 14 points would have been insufficient to prevent a
false identification by three highly-trained and experienced FBI examiners who independently
claimed absolute certainty. See Review of Mayfield Case, supra R. 83, at 4-5. Therefore, a
minimum matching points standard would be no improvement over the subjective “I know it
when I see it” approach currently employed.
10
This standard sets a floor for the number of points examiners must match in a latent and a known print
before it can declare a match. (See R. at 38-39.) In Mayfield, for example, Spanish authorities required
that their examiners match a minimum of 10-points before they could conclude an overall match. The
Spanish authorities, however, were only able to match 8 points on the latent print to Mayfield’s known
print. Ironically, the FBI, working without a minimum point standard, identified 14 matching points.
Clearly, then, a matching point standard is an inadequate standard, as even if the FBI had been working
under Spain’s 10-point standard, the FBI still would have falsely identified the latent print as belonging to
Mayfield.
87
The Government points to the ACE-V process as a controlling standard. However, ACEV suffers from problems of bias, unreliability, and lack of transparency; “merely following the
steps of ACE-V does not imply that one is proceeding in a scientific manner or producing
reliable results.” Nat’l Acad. Report 142. ACE-V cannot be a reliable standard when it “does
not guarantee that two analysts following it will obtain the same results.” Id. Consequently
ACE-V is no standard at all. Moreover, “recent research . . . has shown that experienced [latent]
examiners do not necessarily agree with even their own past conclusions when the examination
is presented in a different context some time later.” Id. 139 (citation omitted). This strongly
suggests that the lack of standards leads to unreliable results. Finally, there are few if any
standards for the training and certification of print examiners. See id. 140-41.
Though they ultimately permitted latent print evidence, the Tenth and Third Circuits
recognized that “[c]ritical steps in the process depend on the subjective judgment of the analyst”
and that there is little “evidence of standards that guide and limit the analyst in exercise of these
subjective judgments.” See Baines, 573 F.3d at 991 (citing United States v. Mitchell, 365 F.2d
215, 241 (3d Cir. 2004)); see also Nat’l Acad. Report 139-41. Surely, the latent fingerprint
community should be (but inexplicably is not) more interested in investigating how the lack of
controlling standards contributes to avoidable error and unreliable results. However, it is not the
judiciary’s responsibility to devise standards to improve the latent fingerprint identification
process. The only issue for the court is whether evidence is reliable given the controlling
standards that exist. Here, the inescapable conclusion is that such standards are lacking
throughout latent print identification evidence.
88
5. General Acceptance in the Relevant Scientific Community
Prior to Daubert, the so-called Frye ”general acceptance” standard controlled the
admissibility of expert testimony in federal courts. See Daubert, 509 U.S. at 585. While Frye
has been replaced by Daubert, the Supreme Court made clear that Frye is still germane. Id. at
594. A relevant scientific community’s general acceptance of a theory provides some support
for its reliability. However, where a technique has “minimal support within the [relevant
scientific or technical] community,” it “may properly be viewed with skepticism.” Id. (internal
quotation marks and citation omitted). As a threshold issue, the parties here dispute the
definition of the “relevant community.”
The Government argues that the relevant community is the latent fingerprint community
or, at least, the broader community of law enforcement. With respect to this community, the
Government is correct that both of these groups generally accept latent print evidence. But the
Defendant is also correct that, in this instance, for the general acceptance to have significance,
the relevant community must go beyond the latent fingerprint community itself and must include
objective experts and legal scholars.
“[T]he presence of Daubert’s general acceptance factor [does not] help show that an
expert’s testimony is reliable where the discipline itself lacks reliability as, for example, do
theories grounded in any so-called generally accepted principles of astrology or necromancy.”
Kumho Tire, 526 U.S. at 151. In other words, when the issue is the general acceptance of the
entire field, general acceptance must come from a broader community. This is because it is
unrealistic to expect a community of experts, who have a vested interest in arguing otherwise, to
conclude that their entire field is unreliable.11
11
Phrenology—the theory that personality could be predicted by the shape of a person’s skull—was very
popular in the 19th century. Within the community of phrenologists there was vigorous debate on both the
89
Here, defining the relevant community as the latent fingerprint community, and asking
whether it accepts itself, would make the general acceptance factor a sham. Beyond the latent
print community itself, there is no scientific community that generally accepts (or has tested) the
reliability of this evidence. And, if one includes the community of legal scholars that have
examined this issue, there are many who express significant doubts about latent evidence’s
reliability. See, e.g., Epstein, supra R. 74, 75 S. Cal. L. Rev. 605. As a result, the lack of
general acceptance supports the skepticism surrounding latent print evidence. See Daubert, 509
U.S. at 594.
6. Long-term Acceptance of Latent Print Evidence by Courts and Law
Enforcement
In addition to the specific Daubert factors, a court must also consider any other relevant
indicia of reliability. The Government argues that the long-term acceptance of latent fingerprint
evidence in judicial proceedings strongly supports reliability. However, not only does the longterm acceptance of this evidence not support reliability, but, counter-intuitively, the history of its
acceptance counsels against admissibility.
A presumption of infallibility of latent fingerprint evidence has permeated law
enforcement, courts, and popular culture for over 100 years. See Nat’l Acad. Report 136. While
this history cannot be ignored, it does not prove that latent evidence is reliable nor does it
demand that this evidence be admitted in court. The long-term acceptance of evidence in judicial
proceedings is—at best—merely one of many relevant factors, and to treat long-term judicial
acceptance as anything more is inconsistent with Daubert and a degradation of a court’s gate
appropriate techniques for measuring and interpreting the various bumps of the human skull. Though
phrenology would never be admissible in court today, if one were to find contemporary phrenologists,
there is no doubt that they would claim that, within their community there is general acceptance of their
theory.
90
keeping function. See Crisp, 324 F.3d at 272 (Michaels, J., dissenting). The persuasiveness of
the long-term acceptance of latent fingerprint evidence is further diminished because, prior
to Daubert, this evidence faced little scrutiny and was admitted more because of stare decisis
than for reasons of reliability. See id. at 276-77.
For most of its history, latent fingerprint evidence faced few challenges in court.
However, as explained above, no Daubert factor speaks to its reliability. Despite this silence,
latent print evidence continues to be presented by experts not only as perfectly reliable evidence,
but as infallible evidence. See, e.g., Nat’l Acad. Report 141-42. These claims of infallibility are
a significant concern in light of the fact that latent print evidence often trumps most other
evidence and is considered by many courts—and juries—as conclusive proof of guilt. See, e.g.,
Williamson v. Ward, 110 F.3d 1508, 1520 n.13 (10th Cir. 1997) (grouping fingerprint evidence
with DNA evidence as “conclusive” evidence of guilt). As a result, a defendant facing latent
fingerprint evidence, absent an unassailable alibi, is often at the mercy of the examiner. See, e.g.,
Commonwealth v. Cowens, 756 N.E.2d 622 (Mass. App. Ct. 2001). Defendants, therefore, must
overcome an immense uphill burden when they attempt to challenge latent print evidence at trial.
This burden only increases on appellate review. See United States v. Gallardo, 497 F.3d 727,
737 (7th Cir. 2007) (holding that appellants face a “nearly insurmountable” challenge in
attempting to challenge “evidence presented to a jury”) (internal quotation marks and citations
omitted). And, practically speaking, criminal defendants rarely have either the resources or
access to the experts that are required to mount adequate challenges. See Crisp, 324 F.3d at 273
(Michaels, J., dissenting). Accordingly, the mere long-term acceptance of latent print evidence
does not justify the difficulty criminal defendants face in mounting challenges to this evidence.
91
Of course, the perfect should not be the enemy of the good. All of the practical concerns
with latent print evidence might be lessened if other factors existed to demonstrate its reliability.
But that simply is not the case. The Government is the only entity with access to both the
information and the resources needed to examine all of the issues identified here and by the
National Academy of Science’s report. In the meantime, criminal defendants are left with
nothing more than the adversarial process, while latent fingerprint evidence continues to produce
in the minds of courts and juries an air of reliability that is unwarranted, highly prejudicial, and
therefore misleading. Yet, as discussed below, the adversarial process is a flawed test of
reliability.
Expert testimony must “assist the trier of fact.” Fed. R. Evid. 702. Rather than assisting
the fact-finder, latent print evidence is likely to be misused by juries as they have no choice but
to rely primarily on the ipse dixit of latent print examiners. See Nat’l Acad. Report 103-04.
7. The Adversarial Process
Finally, the Government argues that any deficiencies in latent fingerprint evidence can be
exposed through the adversarial process before the trier of fact; for example, criminal defendants
can cross-examine experts at trial to expose weak fingerprint identification testimony.
Certainly, for many evidentiary issues, the adversarial process at trial is well-suited to
challenging the probative value of evidence. See Daubert, 509 U.S. at 596. In the case of latent
fingerprint evidence, the adversarial process would not be a test of reliability as much as it would
be a test of a jury’s faith in its reliability. At the outset of trial, jurors almost conclusively
presume that fingerprint evidence is reliable. Given this presumption, it is a rare case indeed that
a jury rejects latent fingerprint identification testimony no matter how compelling the case
against its reliability. This is one of the very reasons why Daubert requires a pretrial judicial
92
determination of reliability by the judge. Daubert, 509 U.S. at 589; see also McElroy v. Albany
Mem’l Hosp., 332 F. Supp. 2d 502 (N.D.N.Y. 2004). Put simply, the Government’s argument
that the adversarial process adequately tests reliability places the proverbial cart before the horse.
***
When a Daubert analysis raises serious questions about the reliability of expert
testimony, the proponent must adequately address those concerns. If Daubert is to stand for
anything, it surely must stand for the principle that evidence is highly unlikely to be reliable
when it fails all of the criteria for admissibility. Here, evidence of reliability and unreliability are
not even close to equipoise. Latent print evidence does not merely fail to one or two
Daubert factors. Rather, all of the factors (to varying degrees) question its reliability. And,
though it had an ambiguous conclusion, the recent study of forensic science by the National
Science Foundation fully supports this conclusion. See Nat’l Acad. Report 136-45.
In evidence, a brick is not a wall. A judge, as gatekeeper, must be satisfied that expert
evidence is sufficiently reliable before a jury can determine whether it is a large brick or a small
brick. See McCreless v. Global Upholstery Co., Inc., 500 F. Supp. 2d 1350, 1358-59 (N.D. Ala.
2007) (“The trial court does not have to find an expert to be a charlatan or a fool to keep the gate
shut on him. The trial court opens the gate only if the scientific method has been totally complied
with.”) As it now stands, it is impossible for courts and, more importantly, juries, to distinguish
reliable from unreliable latent fingerprint identification evidence. At the end of the day, this
evidence is based predominantly on the ipse dixit of the latent print examiner. A district court,
however, has no obligation to admit ipse dixit as reliable evidence—no matter how long it has
been accepted by other courts. See Kuhmo Tire, 526 U.S. at 157.
93
Accordingly, Defendant’s motion in limine seeking to exclude all of the Government’s
latent fingerprint evidence is hereby GRANTED.
94
EXHIBIT 1
LATENT FINGERPRINT FOUND ON PILL VIAL
EXHIBIT 2
DEFENDANT’S ROLLED FINGERPRINT
95
EXHIBIT 3
Boerum General Health Code, Title 6, Sections 721, 725 and 730
06 BOR § 721. Duty to Notify Medical Examiner.
Unless the person has reasonable grounds to believe that notice has already been given, a person
who attends a death or has knowledge of a death of any person, in addition to notifying a peace
officer, shall immediately notify the Office of the Chief Medical Examiner.
06 BOR § 725. Examinations, Investigations, and Autopsies.
(a) In any of the following circumstances involving the death of a human being, the medical
examiner of the district in which the death occurred or the body was found shall determine the
cause of death and shall, for that purpose, make or have performed such examinations,
investigations, and autopsies as he or she shall deem necessary or as shall be requested by the
state’s attorney:
(1) When any person dies in the state:
(A) where criminal violence appears to have taken place;
(B) by accident or unintentional injury;
(C) by suicide;
(D) suddenly, when in apparent good health;
(E) under suspicious or unusual circumstances;
(F) due to disease that constitutes a threat to public health; or
(G) due to poison or acute or chronic use of drugs or alcohol.
(2) When a dead body is brought into the state without proper medical certification.
(3) When a body is to be cremated, dissected, or buried at sea.
(b) The district medical examiner shall have the authority in any case coming under subsection
(a) to perform, or have performed, whatever autopsies or laboratory examinations he or she
deems necessary and in the public interest to determine the identification of or cause or manner
of death of the deceased or to obtain evidence necessary for forensic examination.
06 BOR § 730. Records; Duty to Report.
(a) The Office of the Chief Medical Examiner shall keep full and complete records properly
indexed, giving the name, if known, of every person whose death is investigated, the place where
the body was found, the date, cause and manner of death and containing all other relevant
information concerning the death and a copy of the death certificate. The full report and detailed
findings of the autopsy and toxicological and other scientific investigation, if any, shall be a part
of the record in each case.
(b) The office shall promptly notify the state’s attorney having jurisdiction of such death and
deliver to the state’s attorney copies of all pertinent records relating to every death the office
determines to have been caused by criminal activity.
(c) The office may notify the state’s attorney having jurisdiction of such death and deliver to the
state’s attorney copies of all pertinent records relating to all other deaths not determined to have
been caused by criminal activity.
96
(d) Any state’s attorney, chief of police or other law enforcement official may, upon request,
secure copies of such records or other information deemed necessary by such official for the
performance of his or her official duties.
97
EXHIBIT 4
AUTOPSY REPORT
98
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100
101
102
103
104
105
106
107
108
UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
------------------------------------------------------------X
UNITED STATES OF AMERICA
09-4309-cr
Appellant,
—against—
Argued: September 17, 2009
Decided: October 22, 2009
MICHAEL MORRISON,
Defendant-Appellee.
------------------------------------------------------------X
Before: JOHNSON, HARRIS, and CHOU, Circuit Judges:
HARRIS, Circuit Judge.
The United States (hereinafter the “Government”) appeals from an order by the United
States District Court for the Southern District of Boerum precluding the introduction of: (1)
latent fingerprint evidence; and (2) an autopsy report on the grounds that it is testimonial
hearsay. For the reasons set forth below, we affirm.
I.
Factual Background
On December 16, 2008 Defendant Michael Morrison was indicted and charged with
Second Degree Murder under 18 U.S.C. Section 1111 and Involuntary Manslaughter under 18
U.S.C. Section 1112. A brief summary of the facts leading to the Defendant’s arrest and
indictment follows.
Beginning in 1984, Defendant was the full-time personal physician of musician and
international superstar, Roxy Starr, and was living on Starr’s yacht, the S.S. Rock Starr. On May
15, 1987, “the day the music died, again,” Roxy Starr was airlifted from the yacht to Boerum
Hospital. She was pronounced dead on arrival at 12:23 P.M.
109
Pursuant to state law, Martina Phelps (“Phelps”), a licensed medical examiner, performed
an autopsy on Roxy Starr.12 Phelps worked in the Chief Medical Examiner’s Office for the State
of Boerum and had a duty to report any deaths caused by suspected criminal activity to the
District Attorney’s Office.13 Phelps created an autopsy report in conjunction with her
examination. In the report, she noted that Starr’s heart, brain, lungs, and liver were enlarged and
that the descending coronary artery was narrowed. Phelps also noted the presence of one
undigested pill in Starr’s stomach. The pill was tested and Phelps concluded it contained
alphacol and cocaine, in a ratio now known as “E2379.”14 When Phelps performed a toxicology
analysis, she found these substances present in Starr’s blood and urine as well. Phelps ultimately
determined the cause of death to be arteriosclerotic heart disease and therefore did not report her
findings to the District Attorney’s Office. At that point in time, the “case” was closed, and no
foul play was suspected.15 Phelps was the only medical examiner responsible for the case, and
she died on April 13, 1996.
A vanguard, even in her death, Starr’s last will and testament called for her body to be
set out to sea and burned. None of her remains were preserved elsewhere. Her infamous yacht,
however, was maintained as it was on the day of her death. It now serves as a museum and
tribute to Starr. Visitors are welcome to tour the facility; however, plexiglass barricades prevent
visitors from entering the cabins. Thus, visitors may view the interior but are prevented from
tampering with or removing any items.
12
06 BOR § 725 requires an autopsy to be performed in cases where the person dies “suddenly, when in
apparent good health. . .under suspicious or unusual circumstances. . .[or when the death appears] due to
poison or acute or chronic use of drugs or alcohol.”
13
06 BOR § 730.
14
The pill contained 52 percent cocaine and 48 percent alphacol.
15
The multitude of Starr’s devout fans believed otherwise, always suspecting foul play in Starr’s sudden
death.
110
Twenty-one years later, in 2008, a copy of Starr’s autopsy report was made public for the
first time on a fan website. An ever-devoted fan reviewed its contents and concluded that the pill
in Starr’s stomach, and not heart disease, had caused her death. A campaign driven by Starr’s
fans to reexamine her death followed, and the FBI officially re-opened the case in September of
2008. A search of the medicine cabinet on Starr’s yacht revealed a pill vial containing several
pills of E2379. The FBI arrested Defendant after the only fingerprint on that vial was found to
match that of Defendant.
II.
Procedural History
A federal grand jury indicted Michael Morrison (hereinafter “defendant”) on December
16, 2008, charging him with Second Degree Murder and Involuntary Manslaughter.
Subsequently, on July 27, 2009, defendant filed a pre-trial motion in limine seeking (1) to
preclude the Government from introducing latent fingerprint identification evidence under
Federal Rules of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993); and (2) to preclude the 1987 autopsy report prepared by now deceased Medical
Examiner, Martina Phelps.
On August 3, 2009, the first day of the hearing on the motion, the District Court held a
Daubert hearing. The Government called an expert witness, a latent fingerprint examiner from
the FBI, who testified to the latent fingerprint analysis performed in this case. Pursuant to
stipulation with defendant, the Government also presented expert testimony from the Daubert
hearing in United States v. Baines, 573 F.3d 979 (10th Cir. 2009). Testimony at the hearing also
consisted of two expert witnesses presented by the defense, the first of whom evaluated the latent
fingerprint in this case. The second defense expert testified about latent fingerprint
111
identifications generally. The following day, the District Court heard argument on the
admissibility of the autopsy report.
On August 18, 2009, the District Court granted the motion in limine in its entirety,
holding that (1) latent fingerprint identification evidence is inadmissible under Rule 702 as a
matter of law, and (2) the autopsy report is testimonial and thus inadmissible under the
Confrontation Clause.
III.
ADMISSIBILITY OF THE LATENT FINGERPRINT EVIDENCE
The first issue is whether the trial court properly concluded that latent fingerprint
evidence is unreliable under Federal Rule of Evidence 702. When evidence is based on an
unreliable theory, methodology, or application, it is likely inadmissible as a matter of law,
regardless of an individual expert’s qualifications. See, e.g., United States v. Scheffer, 523 U.S.
303, 314-15 (1998) (plurality opinion) (upholding a per se rule of inadmissibility of polygraph
evidence).
We recognize that latent fingerprint evidence is critical to criminal trials. Accordingly,
this circuit requires a uniform rule of admissibility for this evidence. The District Court
thoroughly and persuasively analyzed the issue and came to a conclusion with which we agree.
It would serve no purpose to replicate that opinion, and the order appealed from is AFFIRMED
ON THE OPINION BELOW.
IV.
ADMISSIBILITY OF THE AUTOPSY REPORT
Relying exclusively on this past June’s Supreme Court decision in Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527 (2009), the District Court held that the Confrontation Clause
prohibited the introduction in evidence of the 1987 autopsy report because the author of that
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report died in 1996, and was not subject to cross-examination by defendant. We affirm but for
somewhat different reasons.
Five years ago, in Crawford v. Washington, 541 U.S. 36, 53-54, 68 (2004), the Supreme
Court held that the Sixth Amendment Confrontation Clause precludes the introduction of
“testimonial” hearsay evidence when the declarant is unavailable to testify and has not
previously been subject to cross-examination by the defendant. The opinion set forth “[v]arious
formulations of this core class of ‘testimonial’ statements”:
[E]x parte in-court testimony or its functional equivalent—that is, materials
such as affidavits, custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially; extrajudicial statements .
. . contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony or confessions; statements that were made under
circumstances which would lead an objective witness to reasonably believe
that the statement would be available for use at a later trial. Id. at 52
(citations and internal quotation marks omitted).
Without adopting any of the formulations, the Court held that statements made during
police interrogations were testimonial and also stated that the “testimonial” category included
testimony at a prior trial, a preliminary hearing or before a grand jury. Id. at 68. A
comprehensive definition of testimonial was expressly left for another day. Id.
Two years later, Davis v. Washington, 547 U.S. 813 (2006), further defined the
testimonial nature of statements made during police interrogations: “Statements are
nontestimonial when made in the course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police assistance to meet an
ongoing emergency.” Id. at 822. On the other hand, statements are testimonial when “the
circumstances objectively indicate that there is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially relevant to later
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criminal prosecution.” Id. Davis offered some obfuscating and tantalizing hints about testimonial
and nontestimonial statements.16 Again, an overarching definition of testimonial was reserved for
another time. See, e.g., id. at 823 n.2, 830 n.5.
That time seems to have arrived just this past June. In Melendez-Diaz v. Massachusetts,
the Court held that forensic laboratory sworn certificates of analysis concluding that a tested
substance was cocaine and setting forth its weight were clearly testimonial. 129 S. Ct. at 2532.
The Melendez-Diaz opinion further states unequivocally that the various formulations of the
“core class of testimonial statements” mentioned in Crawford and set forth above “described the
class of testimonial statements covered by the Confrontation Clause,” id. at 2531, and that there
was “little doubt that the sworn certificates at issue fell within th[at] core class,” id.
Justice Scalia’s opinion for the Court in Melendez-Diaz observed that in stating that the
substance tested was cocaine and setting forth its weight, the sworn certificates are “the precise
testimony the analysts would be expected to provide if called at trial”; thus, the “‘certificates’ are
functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct
‘examination.’” Melendez-Diaz, 129 S. Ct. at 2532 (quoting Davis, 547 U.S. at 830).
The Melendez-Diaz opinion went on to emphasize that not only were the certificates
“‘made under circumstances which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial,’” id. (quoting Crawford, 541 U.S. at 52),
16
Interrogation in some circumstances tends to generate testimonial statements; “statements made in the
absence of any interrogation” or detailed questioning may, nonetheless, be testimonial; volunteered
statements may be testimonial, even when there is no interrogation; “in the final analysis, it is the
declarant’s statements, not the interrogator’s questions, that” require Confrontation Clause evaluation,
547 U.S. at 822 n.1; and “testimonial statements are what they are,” id. at 832 n.6.
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“but under Massachusetts law the sole purpose of the certificates was to provide ‘prima facie
evidence of the composition, quality and the net weight’ of the analyzed substance.” Id. (internal
citations omitted).
The issue here is whether the 1987 Starr autopsy report is a statement encompassed by
one or more of the various core-class testimonial formulations. We hold that the autopsy report
fits comfortably within these formulations. Indeed, the opinion in Melendez-Diaz seemingly
indicates that autopsy analyses and conclusions are testimonial. Id. at 2536 n.5; see State v.
Locklear, 681 S.E.2d 293, 304 (N.C. 2009) (finding that Melendez-Diaz held that an autopsy
report is testimonial). In any event, an autopsy report is a formal statement made under
circumstances which would lead an objective medical examiner reasonably to believe that the
report would be available for use at a subsequent criminal trial.
The autopsy report states that a partially dissolved white pill found in Roxy Starr’s
stomach contained cocaine, describes the condition of Starr’s body and organs and the
toxicology of Starr’s blood, and contains a conclusion about Starr’s cause of death. The autopsy
report, like the laboratory report in Melendez-Diaz, is “functionally identical to live, in-court
testimony, doing precisely what a witness does on direct examination.” 129 U.S. at 2532.
Formality
In both Crawford, 541 U.S. at 51, and Davis, 547 U.S. at 826, the Court recognizes that a
testimonial statement is formal in nature. The autopsy report is signed by the medical examiner
and sets forth findings and conclusions of that government officer that are required by statute to
be filed in a government office. The report is the basis for issuing a formal government
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certificate—a death certificate. Filing a false autopsy report is punishable as a crime in
Boerum,17 under federal law, 18 U.S.C. § 1001, and the law of virtually every state in the Union,
see, e.g., N.Y. Penal Law § 175.35. Significantly, in this regard, criminalization of false
statements was held to provide sufficient formality to render testimonial a victim’s in-home
statements to the police in Davis, 547 U.S. at 826, 831 n.5. Moreover, that a statement is
unsworn does not preclude it from being testimonial. See Davis, 547 U.S. at 826; Crawford, 541
U.S. at 52 n.3.
The Reasonable Belief of an Objective Medical Examiner
Boerum medical examiners are charged with conducting autopsies, 06 Bor. § 725, and
preparing a report in a variety of situations and for a variety of purposes. See 06 Bor. § 730.
Significantly, the very first situation on the list is the death of a person by apparent criminal
agency, and the medical examiner must also notify the State’s Attorney of any determination that
death was caused by criminal means. 06 Bor. § 730(b). Both of these obligations demonstrate
that whenever they prepare an autopsy, Boerum medical examiners are acutely aware that the
autopsy reports may well play a significant evidentiary role in any subsequent criminal
prosecution. Indeed, one of the country’s leading forensic pathologists has acknowledged the
existence of such awareness. See Michael M. Baden, UNNATURAL DEATH: CONFESSIONS OF A
MEDICAL EXAMINER 55, 64 (2005). Awareness of potential evidentiary use, or even a reasonable
belief of such use, is particularly evident in high profile cases, especially those involving the
17
Boerum Penal Law § 275.50 provides:
A person is guilty of offering a false report for filing when he or she knowing
such a report contains false statements or information offers or submits that report
to a public agency or officer for filing or files such a report with a public agency
or officer.
Violation of this section shall be a class I misdemeanor punishable by no
more than a year in jail and/or a fine not to exceed $10,000.
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death of a celebrity. In many cases there is a statement to the news media that announcement of
the cause of death must await the results of an autopsy, and subsequently, the results of the
autopsy are front-page news. That, as pointed out by the dissent, only seven to ten percent of
autopsies performed by medical examiners are related to a homicide, misses the point. The point
is that objective medical examiners reasonably believe that the preparation of autopsy reports
and their potential use at trial go hand-in-hand.
Equally unpersuasive is our dissenting colleague’s argument that medical examiners are
both statutorily and in fact independent of the police and the prosecution. In a very broad range
of circumstances, a Boerum medical examiner has authority to perform investigations to
determine cause of death, and similarly has a duty to perform investigations upon request of the
State’s Attorney. See 06 Bor. § 725. The medical examiner has a statutory duty to notify the
State’s Attorney whenever she determines that death was caused by criminal means. Id. That
notification is a prelude to turning over an autopsy report, which she knows or is at least
reasonably aware could be used as evidence if the state decides to prosecute. Additionally, a
medical examiner must keep full and complete records of each case, and she must turn over
copies of those records upon request by the State’s Attorney or any other law enforcement
official. Id. § 730. Those requirements demonstrate that the medical examiner is an important
member of the law enforcement team.18 Indeed, noted pathologist Michael Baden has stated that
medical examiners cannot survive in office unless they are part of the police and prosecutorial
team, and many willingly join up. See BADEN, CONFESSIONS OF A MEDICAL EXAMINER, supra R.
18
The Boerum statutes governing the authority and duties of the medical examiner are similar to the
medical examiner statute analyzed by a Minnesota court. That statute required reporting of certain deaths
to the medical examiner, gave the examiner discretion in ordering autopsies, and required the examiner to
report deaths, “in any cases of a potential criminal nature.” State v. Johnson, 756 N.W.2d 883, 890 (Ct.
App. Minn. 2008) (citations and internal quotation marks omitted). The court ultimately held that the
medical examiner was not sufficiently independent from law enforcement to support the prosecution’s
argument that the autopsy report was not testimonial. Id.
117
116
, at 72; see also MICHAEL BADEN & MARION ROACH, DEAD RECKONING: THE NEW SCIENCE
OF CATCHING KILLERS
15 (2001).
It cannot be seriously disputed that medical examiners are governmental officers who
create evidence—an autopsy report—to be introduced at a criminal trial. This is the very kind of
evidence that triggers the Confrontation Clause requirement of cross-examination of the
governmental agent who created it. Crawford, 541 U.S. at 53, 56 n.7. Moreover, with respect to
forensic reports, Melendez-Diaz made it crystal clear that cross-examination is required and
necessary regardless of how competent and honest the expert may be. 129 S. Ct. at 2536-37.
The dissent bemoans our failure to demonstrate that autopsy reports are akin to a
common law practice at which the confrontation right was directed. Still, English coroner inquest
reports, which may have been admissible absent confrontation, were not admissible under
American practice. See id. at 2538; Giles v. California, 554 U.S. ___, 128 S. Ct. 2678, 2696
(2008) (Breyer, J. dissenting); Crawford, 541 U.S. at 47 n.2. In any event, “[r]estricting [the
Confrontation Clause] to the precise forms against which it was originally directed is a recipe for
its extinction.” Davis, 547 U.S. at 830 n.5.
The dissent implies that because the autopsy report at issue is outside the core of the
Confrontation Clause, the confrontation right should be balanced against the competing and
compelling state interest in prosecuting cold-case homicides. As seen from our earlier discussion,
however, autopsy reports are within the core class of testimonial statements, see Melendez-Diaz,
129 S. Ct. at 2531-32; thus, no balancing is required. More importantly, “[t]he text of the Sixth
Amendment does not suggest any open-ended exceptions from the confrontation requirement to
be developed by the courts.” Id. at 2540; Crawford, 541 U.S. at 54.
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Additionally, despite the view expressed by the dissent, today’s decision will have little,
if any, impact on the overwhelming majority of homicide cases. We understand the concern
about interfering with the ability to prosecute cold-case homicides; still, the dissent overstates
considerably the impact of our decision on these kinds of prosecutions. Cf. Melendez-Diaz, 129
S. Ct. at 2540-41. Significantly, in this regard, the Confrontation Clause, while generally
prohibiting the introduction of an un-cross-examined autopsy report in evidence or otherwise
disclosing its contents to the jury, does not preclude an expert from basing an opinion of the
cause of death on the autopsy report. Crawford, 541 U.S. at 59 n.9 (holding that the
Confrontation Clause does not bar the use of testimonial statements for purposes other than the
truth of the matter asserted); see Fed. R. Evid. 703, 705.
***
Despite the dissent’s implication, we have not reached our fingerprint decision easily. We
recognize that latent fingerprint identification evidence has been and continues to be a critical
law enforcement tool. Nevertheless, long-term acceptance cannot overcome the abundant
indicators of unreliability that permeate the identification of latent fingerprints. As for the harsh
characterization of our autopsy opinion by the dissent, the Supreme Court has made clear that
autopsy reports are testimonial, and we are compelled to follow. Accordingly, the orders below
should be AFFIRMED.
JOHNSON, Circuit Judge, dissent.
I.
LATENT FINGERPRINT EVIDENCE
Latent fingerprint evidence has been admissible in criminal proceedings for over 100
years. And over these 100 years, latent fingerprint evidence has become, both in this country
and throughout the civilized world, one of the fundamental tools of law enforcement. Despite
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these undeniable facts, the majority sanctions the District Court’s unprecedented conclusion that
latent fingerprint evidence is so unreliable that it must be excluded, in all circumstances, as a
matter of law. The District Court’s opinion offers no support for such a draconian measure. In
some instances, the opinion ignores significant evidence of reliability and, in other instances,
overstates evidence that merely suggests, but does not affirmatively establish, unreliability.
Rather than requiring wholesale exclusion, the “strong expert and judicial consensus regarding
the reliability of fingerprint identification,” United States v. Crisp, 324 F.3d 261, 269 (4th Cir.
2003), gives rise to a presumption of reliability which has not been rebutted by specific evidence
to the contrary. Cf. United States v. Prince-Oyibo, 320 F.3d 495, 497-98 (4th Cir. 2003)
(holding that pre-Daubert per se rules apply “[a]bsent an en banc overruling or a superseding
contrary decision of the Supreme Court”). Because the evidence does not overcome this
presumption, per se exclusion of latent fingerprint evidence goes beyond a district court’s
discretion as gatekeeper.
True, the majority is correct that Daubert requires a District Court to examine expert
testimony with a discerning eye. Still, the Supreme Court has also repeatedly made clear that
Daubert is not a “definitive checklist” of reliability, Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 150-51 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593
(1993), and that Daubert establishes a liberal threshold for admissibility. See Daubert 509 U.S.
at 588. Thus it is unsurprising that every circuit court (and every federal district court that I
could find) that has addressed this issue post-Daubert has held that latent evidence is sufficiently
reliable. See United States v. Baines, 573 F.3d 979 (10th Cir. 2009); United States v. CalderonSegura, 512 F.3d 1104 (9th Cir. 2008); United States v. Abreu, 406 F.3d 1304 (11th Cir.
2005); United States v. Mitchell, 365 F.3d 215 (3d Cir. 2004); United States v. Collins, 340 F.3d
120
672 (8th Cir. 2003); United States v. Crisp, 324 F.3d 261 (4th Cir. 2003); United States v.
Havvard, 260 F.3d 597 (7th Cir. 2001). All of these opinions suggest that because latent print
evidence has achieved such universal approval by courts and law enforcement, an opponent has a
substantial burden in persuading a court to reject latent evidence as a matter of law. See, e.g.,
Crisp, 324 F.3d at 270 (demanding further research before rejecting “this bedrock forensic
identifier”) (internal quotation marks and citation omitted). The District Court and majority
merely pay lip service to, and cavalierly dismiss, these persuasive holdings. In support they can
but cite a solitary federal judge, Crisp, 324 F.3d at 273 (Michaels, J., dissenting), and a single
state court opinion, State v. Rose, No. K06-0545 (Md. Balt. Co. Cir. Oct. 19, 2007).
Notwithstanding the protestations of the majority and District Court, for more than one
hundred years, latent fingerprint evidence has been subjected to testing “in the world of criminal
investigation, court proceedings, and other practical applications.” Baines, 573 F.3d at 990. If
thousands of highly motivated defendants have been unable to mount successful challenges to
fingerprint evidence, that inability signals that this evidence was rarely incorrect and therefore
highly reliable. Even in the absence of the overwhelming support of courts and law
enforcement, the record below does not suggest that latent print evidence is currently incapable
of satisfying a Daubert challenge.
Unlike the District Court’s analysis, Daubert’s is a “flexible” inquiry. Daubert, 509 U.S.
594. This flexibility is most evident in cases of experience-based expert testimony, where many
of the Daubert factors are not directly applicable. See Kuhmo Tire, 526 U.S. at 151. In Kuhmo
Tire, for example, the Supreme Court held that experts may base their conclusions on “general
truths derived from [ ] specialized experience.” 526 U.S. at 148 (citation and internal quotation
marks omitted). As an example, the Court discussed the admissibility of the testimony of “a
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witness whose expertise is based purely on experience [as] a perfume tester able to distinguish
among 140 odors at a sniff.” Id. at 151. District Courts have taken this suggestion and admitted
experts with varying degrees of expertise and experience. See, e.g., Atkinson v. Gen. Research of
Elecs., Inc., 24 F. Supp. 2d 894 (N.D. Ill. 1998) (permitting an expert with practical experience
in radio technology to testify on the issue of scanning radio software despite no formal training
designing this software); Galentine v. Estate of Stekervetz, 273 F. Supp. 2d. 538 (D. Del. 2003)
(finding that an expert had “the proper experience, training and skill” to testify that faulty
electrical wiring caused a fire despite no post-high school education).
A latent fingerprint examiner’s skill is as much an experience-based art as it is a precise
science. (See R. at 9; R. at 29.) The subjective component of this evidence, however, is
relatively restricted and depends “in some measure on experiential factors that transcend precise
measurement and quantification.” See United States v. Llera Plaza, 188 F. Supp. 2d 549, 571
(E.D. Pa. 2002). Therefore, if an expert perfume-tester can satisfy Daubert, see Kuhmo Tire, 526
U.S. at 151, I have no doubt—and the other circuits that have considered this issue agree—that
there are latent fingerprint examiners who can as well.
The District Court was also highly critical of the absence of known error rates and held
that this absence tends to support unreliability. However, the District Court overstates the case.
An expert’s technique “need not be flawless” to be reliable, United States v. Prime, 431 F.3d
1147, 1153 (9th Cir. 2005), as ”an unknown error rate does not necessarily imply a large error
rate.” United States v. Starzecpyzel, 880 F. Supp. 1027, 1037 (S.D.N.Y. 1995). Thus, the
absence of known error rates does not affirmatively establish unreliability. In fact, the record
below does provide affirmative evidence of latent print evidence’s reliability.
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To begin, FBI Agent Meagher testified that the “methodological error” rate is “zero
error” with an overall error rate approaching “one of every 11 million comparisons.” (R. at 33;
R. at 38.) Putting aside the hyperbole, Agent Meagher’s testimony persuasively demonstrates
that the error rate is vanishingly small. See Baines, 573 F.3d at 990-91. Extremely low error
rates are further demonstrated by the thousands of identifications, from decades of judicial
proceedings that have withstood the test of time. See id. This evidence is not invalidated by the
District Court’s citation of a mere handful of false positives. The reliability of latent print
evidence is further increased by the ACE-V process of analyzing, comparing, evaluating, and
then verifying that led to the expert’s match of defendant’s fingerprint to the latent print found on
the vial of pills in Starr’s medicine cabinet.
Though both the United States’ and Defendant’s experts testified that examiners can
make mistakes, and notwithstanding the FBI’s mistake in the Mayfield case, the verification step
of the ACE-V technique, though not “peer review” in the pure sense, supports reliability. The
chance that two examiners will make an error in the same case is significantly less than the
chance of an error when only a single examiner makes a comparison. Thus ACE-V reduces
errors, because when ACE-V is applied, an individual examiner’s conclusion is retested and
verified by another examiner. The latent fingerprint community should be praised for taking
extra precautions against error by building redundancies into the process, see Havvard, 260 F.3d
at 599. Instead, the majority discredits ACE-V with unsubstantiated claims of bias. The
evidence, however, does not suggest that latent print examiner conclusions are biased. And even
where bias does exist, defendants have ample opportunity to expose it through vigorous crossexamination. In light of Agent Meagher’s testimony, the miniscule examples of known errors
despite decades of use, and the verification step in the ACE-V process, the record establishes that
123
whatever errors exist in latent fingerprint evidence are miniscule and do not call for a per se
exclusion. See Baines, 573 F.3d at 990-91.
With respect to the general acceptance of latent fingerprint evidence, the District Court
demands more than Daubert requires. No matter what technique is at issue, one can always find
those who question its reliability. All that Daubert requires is for the technique to have gained
“general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F.
1013, 1014 (D.C. 1923) (Frye cited with approval in Daubert, 509 U.S. at 594). When expert
evidence is based on experience, the community of practitioners is the appropriate community
because they are the only experts who have achieved the practical experience necessary to
evaluate the evidence. Cf. Baines, 573 F.3d at 991 (holding that “while we acknowledge that
acceptance by a community of unbiased experts would carry greater weight, we believe that
acceptance by other experts in the field should also be considered”).
In the instant case, the District Court held that there is no general acceptance of latent
print evidence by a broad community of scientists and legal scholars. First, the District Court
fails to either respond to or give credit to legal scholars who do accept latent evidence as reliable.
See, e.g., Christophe Champod, Fingerprint Examination: Towards More Transparency, 7 Law,
Probability & Risk 111, 111 (2007). Second, even if legal scholars were uniform in their
criticisms, which they are not, there is no question that latent evidence has been generally
accepted by the forensic science community—as well as by law enforcement and courts—for
over a century. See Baines, 573 F.3d at 990. Similarly, nothing in the record challenges the
general scientific principle that underlies latent fingerprint evidence, which is that all fingerprints
are unique; no one has ever found identical fingerprints coming from two different individuals,
not even identical twins.) Moreover, that DNA evidence has come to replace fingerprint
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evidence as the gold standard of forensic evidence does not warrant a wholesale exclusion of
latent fingerprint evidence merely because DNA may be stronger evidence. As long as latent
fingerprint evidence is sufficiently reliable, it should be of no consequence that forensic DNA
evidence is arguably even more reliable.
Finally, latent print evidence is not the sort of junk science that Daubert would entirely
exclude from the adversarial process. The Supreme Court taught that, instead of wholesale
exclusions of expert evidence, “[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. In the case of latent
fingerprint evidence, all of these options are available to criminal defendants. Defendants can
vigorously cross-examine prosecution witnesses and can present their own latent print experts in
opposition. A defense expert can also independently analyze the evidence and reveal any
deficiencies in the prosecution expert’s conclusion. All of these avenues are available to a
defendant and, therefore, strengthen the reliability of the evidence.
To the extent that the majority takes issue with claims of absolute certainty, these
concerns can be easily allayed. For example, district courts can require experts to qualify their
testimony and the court can make it clear to the jury that the expert’s opinion is just that–an
opinion. See, e.g., United States v. Llera Plaza, 179 F. Supp. 2d 492, 516 (E.D. Pa. 2002)
(allowing latent fingerprint expert to testify about similarities and differences between latent
print and defendant’s print but not to provide an opinion as to whether the latent print belonged
to defendant), vacated by 188 F. Supp. 2d 549 (E.D. Pa. 2002) (permitting latent fingerprint
expert’s opinion); see also 1 P.C. GIANNELLI & E.J. IMWINKELRIED, SCIENTIFIC EVIDENCE §
16.10(d), at 925-26 (4th ed. 2007). And, when a court has any lingering concerns about the form
125
or substance of an expert’s testimony, it can, and should, do as the Supreme Court suggested and
provide carefully tailored jury instructions. Daubert, 509 U.S. at 596.
Fingerprint evidence is often one of the most powerful weapons in law enforcement’s
arsenal. See, e.g., United States v. Burgos, 94 F.3d 849, 864 (4th Cir. 1996) (finding latent
fingerprint evidence “[t]he most damning physical evidence”). This confidence is supported by
the long-term acceptance of latent fingerprint evidence in courts and by the extremely small
number of known errors. In addition, the adversarial process, not the ipse dixit of a District
Court, is generally the preferred “means of attacking . . . admissible evidence.” Daubert, 509
U.S. at 596.
II.
AUTOPSY REPORT
“Curiouser and curiouser” grows “testimonial”—a word, nay a concept, that appears
nowhere in the English or American common law history of the confrontation right.19 Nor does it
appear in the text of the Sixth Amendment Right to Confrontation. Melendez-Diaz, 129 S. Ct. at
2544 (Kennedy, J. dissenting). In an opinion remarkable in its absurdity, the two-judge majority
here reads Melendez-Diaz as holding that an unsworn autopsy report is testimonial hearsay and is
thus barred from admission in a criminal case when its author is unavailable to testify at trial and
defendant had no opportunity to cross-examine the author of that report.20
19
See Thomas Y. Davies, What Did the Framers Know, and When Did They Know It? Fictional
Originalism in Crawford v. Washington, 71 Brook. L. Rev. 105, 112 (2005); Thomas Y. Davies, Not
“The Framers’ Design”: How the Framing-Era ban Against Hearsay Evidence Refutes the CrawfordDavis “Testimonial” Formulation of the Scope of the Original Confrontation Clause, 15 J. L. & Pol’y
349, 365-67 (2007); Randolph N. Jonakait, The (Futile) Search for a Common Law Right of
Confrontation: Beyond Brasier’s Irrelevance to (Perhaps) Relevant American Cases, 15 J.L. & Pol’y 471
(2007). Compare Robert Kry, Confrontation Under the Marian Statutes: A Response to Professor Davies,
72 BROOK. L. REV. 493 (2007), with Thomas Y. Davies, Revisiting the Fictional Originalism in
Crawford’s “Cross-Examination Rule”: A Reply to Mr. Kry, 72 Brook. L. Rev. 557 (2007).
20
The majority misreads a footnote in Melendez-Diaz, 129 S. Ct. at 2536 n.5, as stating that all autopsy
reports are testimonial in nature. Rather, that footnote, read in conjunction with the text to which it is
126
Neither Melendez-Diaz nor the history-based decision in Crawford supports this result.
The certificates of analysis at issue in Melendez-Diaz were sworn affidavits and are referred to as
such at least twenty times, including the first paragraph (“The question presented is whether
those affidavits are ‘testimonial,’ rendering the affiants ‘witnesses’ subject to the defendant’s
right of confrontation under the Sixth Amendment,” id. at 2530), the last paragraph (“This case
involves little more than the application of our holding in Crawford [citation omitted]. The Sixth
Amendment does not permit the prosecution to prove its case via ex parte out-of-court
affidavits,” id. at 2542), and at least nineteen times in between. E.g., id. at 2532, 2535, 2537.
Of equal significance is Justice Thomas’s concurring opinion, providing the crucial fifth
vote, expressly stating: “I join the Court’s opinion because the documents at issue in this case
‘are quite plainly affidavits.’” Id. at 2543 (citation omitted). Indeed, it is Justice Thomas’s longheld view that “the Confrontation Clause is implicated by extrajudicial statements only insofar as
they are contained in formalized testimonial materials, such as affidavits, depositions, prior
testimony, or confessions.” Id. (quoting White v. Illinois, 502 U.S. 346, 365 (1992) (opinion
concurring in part and concurring in judgment); Davis v. Washington, 547 U.S. 813, 836 (2006)
(opinion concurring in judgment and dissenting in part); Giles v. California, 128 S. Ct. 2678,
2693 (2008) (concurring opinion).
Given Justice Scalia’s “affidavit”-riddled opinion for the Court and the decisive nature of
Justice Thomas’s concurrence, my two Fourteenth Circuit colleagues have entered the twilight
zone when they assert that the Melendez-Diaz opinion holds that any and all unsworn autopsy
reports are testimonial if “made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.” 129 S. Ct. at
attached, means only that when an autopsy report is testimonial, there is a right to cross-examine its
author.
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2532 (internal quotation marks and citations omitted). Notably, my colleagues have omitted the
word “affidavit,” which immediately precedes “made” in the quote from Melendez-Diaz. Id.
Also disturbingly and conspicuously absent from my colleagues’ majority opinion is any
mention of the principal malevolence at which the Confrontation Clause is directed, i.e. “the
civil-law mode of criminal procedure, and particularly its use of ex parte examinations [of
witnesses by officers of the Crown, magistrates and justices of the peace] as evidence against the
accused.” Crawford, 541 U.S. at 50. It is the “modern practices with closest kinship to the
abuses at which the Confrontation Clause was directed.” Id. at 68. The opinion continues:
“Police interrogations bear a striking resemblance to examination by justices of the peace in
England . . . [who] had an essentially investigative and prosecutorial function.” Id. at 52-53.
Interestingly, my colleagues point to no common law evil that remotely resembles a
medical doctor who uses modern-day scientific expert knowledge and procedures to determine
the cause of death. Nor does today’s medical examiner in any way resemble the disreputable
nonmedical politically-motivated coroners of English days of yore, who carelessly issued reports
and incompetently conducted pseudo-”judicial-like” proceedings, sometimes even with a jury, to
determine not simply the cause of a person’s death, but the person or persons responsible for that
death. See 5 WIGMORE, EVIDENCE § 1374, at 61 (3d ed. 1940) (calling for coroners to be experts
as in “New York, Massachusetts and elsewhere”); see also Note, Official Records Coroner’s
Inquest, 65 U. Pa. L. Rev. 290, 291-92 (1916) (offering a less than flattering portrait of the
American coroner system).
The failure to moor the testimonial category to the evils of history at which the
Confrontation Clause was addressed can only cast confrontation-hearsay adjudications adrift on
a sea of uncertainty and unprincipled decision-making, a result that seriously concerns at least
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five Justices of the Court. See Melendez-Diaz, 129 S. Ct. at 2543 (Thomas, J. concurring) and at
2543 (Kennedy, J. dissenting, joined by Roberts, C.J., Breyer, J., & Alito, J.).
The Reasonable Belief of the Objective Witness
Even assuming that Melendez-Diaz holds that an autopsy report is testimonial if made
under circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial, id. at 2527, that standard is not satisfied here.
Creating an autopsy report to be used at trial is simply not on any reasonable medical examiner’s
mind when performing an autopsy. To paraphrase the Los Angeles County Medical Examiner,
the needs and desires of law enforcement are the furthest thing from the mind of a medical
examiner when conducting an autopsy. Carolyn Zabrycki, Toward a Definition of
“Testimonial”: How Autopsy Reports Do Not Embody The Qualities of a Testimonial Statement,
96 Cal. L. Rev. 1093, 1130 (2008). Indeed, it is hard to believe that trial is on any medical
examiner’s mind when statistically, homicides account for a mere seven to ten percent of the
deaths a medical examiner investigates a year. See NATIONAL RESEARCH COUNCIL OF THE
NATIONAL ACADEMIES, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH
FORWARD 244 (Nat’l Academic Press 2009).
The majority here is suffering from the “Quincy”/”CSI” effect when it relies on
Hollywood depictions to make real life determinations. Unlike the fantasyland medical
examiner who is portrayed as a tool or an arm of law enforcement, real-life medical examiners
are, both in law and fact, independent of and not subject to control by the police or the
prosecution. See People v. Washington, 654 N.E.2d 967, 969 (N.Y. 1995); People v. Freycinet,
892 N.E.2d 843, 845 (N.Y. 2008); United States v. Rosa, 11 F.3d 315, 332 (2d Cir. 1993);
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United States v. Felix, 467 F.3d 227, 236-37 (2d Cir. 2006), cert denied, 127 S. Ct. 1323 (2007);
see also 06 Boerum §§ 721, 725, & 730.
Dr. Phelps, like any other professional medical examiner, is not a star-struck observer,
but a doctor, interested only in what the body can tell her. In 1987, Roxy Starr’s body arrived on
Phelps’ examination table with no indication of criminal agency. If anything, Starr’s fame and
circumstances of death would lead an objective medical examiner reasonably to believe that
death was caused by the all-too-common accidental celebrity/rock and roller drug overdose, and
would have little, if any, reason to believe that the autopsy report would be evidence at a
criminal trial.
A medical examiner examines the body of a deceased, conducts toxicological and other
tests, and documents his or her findings. “A medical examiner’s reported observations as to a
body’s condition are normally made as part of an effort to determine a cause of death.” Rosa, 11
F.3d at 332. The main concern of a medical examiner is determining the cause of death, not who
caused it or how to prove who caused it. Indeed, “‘a medical examiner, although often called a
forensic expert, bears more similarity to a treating physician than he [or she] does to one who is
merely rendering an opinion for use in the trial of a case.’” Manocchio v. Moran, 919 F.2d 770,
777 (1st Cir. 1990) (quoting State v. Manocchio, 497 A.2d 1, 7 (R.I. 1985), cert. denied, 500
U.S. 910, 111 S. Ct. 1695 (1991)).
Even assuming that an autopsy report has some testimonial characteristics, given the
practical and devastating consequences of excluding the report in its entirety, perhaps only the
cause of death conclusions of a medical examiner should be characterized as testimonial.
Consequently, only that conclusion would be redacted, leaving untouched contemporaneous
objective accounts of observable facts. See State v. Lackey, 120 P.3d 332, 348-52 (Kan. 2005);
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Rollins v. State, 866 A.2d 926, 949-55 (Md. Ct. Spec. App. 2005); Freycinet, 892 N.E.2d at 846.
The prosecution could then call another expert to testify and give his or her own opinion as to the
cause of death, subject to cross examination by the defendant.
Finally, the majority’s suggestion that an expert can offer an opinion on cause of death
without referring in any way to the autopsy, or admitting it into evidence, is no solution at all. An
expert’s conclusion as to cause of death without any factual or other basis for support will not
prove persuasive to the jury, especially given the burden to prove defendant’s guilt beyond a
reasonable doubt. An expert opinion unsupported by facts and reasons is virtually worthless.
Indeed, in some jurisdictions, an expert cannot offer an opinion without first giving his reasons
and basis. See, e.g., Fensterer v. State, 509 A.2d 1106, 1109 (Del. 1986); People v. Jones, 539
N.E.2d 96, 98-99 (N.Y. 1989); See Ala. R. Evid. 703; Alaska R. Evid. 705; Mich. R. Evid. 703;
Pa. R. Evid. 705; Minn. R. Evid. 703; Tex. R. Evid. 705.
***
The majority is twice historically-challenged. First, despite a century of admitting latent
fingerprint identification testimony, the majority says, no more. Second, the majority holds that
autopsies are testimonial evidence under the history-based Crawford decision despite the
absence of any historical analogue. In both rulings, a two-judge majority of the Fourteenth
Circuit has arrogated a power that rests only with the Supreme Court. Accordingly, I dissent.
131
No. 09-5434
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2009
THE UNITED STATES OF AMERICA,
Petitioner,
—against—
MICHAEL MORRISON,
Respondent.
December 8, 2009
The petition for a writ of certiorari to the United States Court of Appeals for the
Fourteenth Circuit is granted, limited to the following questions:
I. Does latent fingerprint identification testimony satisfy the admissibility requirements
of Federal Rule of Evidence 702?
II. Does the Sixth Amendment Confrontation Clause bar from evidence against a
criminal defendant an autopsy report prepared twenty years earlier by a since deceased medical
examiner?
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