Full Daubert Hearing Is Not Always Required To Admit Expert Testimony (Part V)

In illegal weapons possession case, defendant who objected to admitting fingerprint expert evidence that was “used ... in matching the partial latent fingerprint recovered from the [charged] firearm” to the defendant's left thumb print, had to “produce data and experts to demonstrate why” the expert evidence should not be admitted; the trial court did not improperly shift the burden of showing admissibility to the objector because case law overwhelmingly admitted such evidence and the objector provided “no novel challenge” and showed “no new favorable case law or expert testimony to challenge” the proffered expert fingerprint evidence, in United States v. Pena, 586 F.3d 105 (1st Cir. Nov. 17, 2009) (No. 08-1407)

The First circuit provides another recent example of a circuit consensus on the admission of expert fingerprint evidence. The circuit also holds that a formal Daubert hearing is not always required before fingerprint expert testimony may be admitted.

In the case, defendant Pena ran after he was approached by officers who responded to a request to look for a particular individual. After apprehending him, the officers recovered discarded bags that contained more than 43 grams of cocaine base and a loaded .357 Magnum revolver. He also had nearly $2,800 in cash in his right front pocket. He was charged with possessing cocaine base with intent to distribute and carrying a firearm during and in relation to a drug trafficking crime. The defendant’s left thumb was identified from a partial latent fingerprint found on the firearm. Just before trial, the defense moved to exclude fingerprint expert testimony under FRE 702.

The trial court “provisionally denied the motion and allowed three troopers from the Massachusetts State Police trained in fingerprint analysis to testify at trial that they compared a partial latent fingerprint found on the revolver to an inked fingerprint of Pena’s left thumb using the ACE-V method (analysis, comparison, evaluation, and verification), and matched the latent fingerprint with the inked fingerprint to the exclusion of all others.” Pena, 586 F.3d at 109. The jury convicted the defendant and he was sentenced to 120 months imprisonment. On appeal, he challenged the admission of the expert fingerprint identification testimony based on the ACE-V method as unreliable and not based on a scientifically valid method.

The First Circuit affirmed the conviction finding no error in admitting the fingerprint expert testimony. The circuit seemed to suggest that the defendant’s challenge amounted to a lot of sound and fury that ultimately signified nothing. The defendant argued that the fingerprint analysis was “not scientific and that the troopers' conclusion that his fingerprint matched the partial latent print was based on no discernible standard. … [T]hat the ACE-V method was unreliable because it involved merely a visual comparison of the two prints where the trooper conducting the initial analysis knew that the inked print was taken from a suspect.” Pena, 586 F.3d at 109.

While the trial court declined to hold a Daubert hearing in making its determination to admit the fingerprint expert testimony, the circuit noted that during trial, the expert’s testimony laid an adequate foundation regarding the reliability of the ACE-V method of analysis. The expert testified “about the ACE-V method, his training and experience using the method for fingerprint identification, and how he used the method in Pena's case. “ This was followed by testimony from another two troopers with experience in fingerprint identification who also “testified as to their verification of the match.” Pena, 586 F.3d at 110.

Although the trial judge had some reservations about the testimony because the lab “used no specific minimum number of points to confirm a fingerprint match,” ultimately for the trial judge it was that “the case law is overwhelmingly in favor of admitting fingerprint experts under virtually any circumstance” that persuaded him to admit the testimony. Pena, 586 F.3d at 110. The judge concluded that in arguing to exclude the evidence, the defendant’s showing was too thin as it failed to present any “data, real evidence” on the limitations of fingerprinting and relied on only “one article from the Fordham Law Review, and that's not enough to carry the weight of the exclusion motion.” Pena, 586 F.3d at 110.

The circuit’s analysis was brief and to the point as to why no error occurred in admitting the fingerprint expert analysis. “Numerous courts have found expert testimony on fingerprint identification based on the ACE-V method to be sufficiently reliable under Daubert,” concluded the First Circuit. Pena, 586 F.3d at 110 (citing, inter alia, United States v. Baines, 573 F.3d 979, 990-92 (10th Cir. 2009); United States v. Mitchell, 365 F.3d 215, 246 (3d Cir. 2004)). Even when the analysis was based on proceeding with an ACE-V standard that had no required identification of a “minimum” set of points and that might have some “subjectivity of certain ACE-V protocols,” the circuit concluded that “courts have nonetheless found that most of the Daubert factors support admitting latent fingerprint identification evidence obtained pursuant to the ACE-V method.” In this light, the circuit reiterated, “against such a backdrop, ‘it is difficult to discern any abuse of discretion’ when the district court decides to admit expert testimony that relies on the ACE-V method.” Pena, 586 F.3d at 111 (quoting United States v. Mahone, 453 F.3d 68, 71 (1st Cir. 2006)).

The circuit also rejected that there had been any deficiency in how the trial judge considered whether to admit the expert evidence without a full Daubert hearing in advance of the trial:

“Pena also argues that the district court erroneously shifted to him the burden of refuting the reliability of the expert testimony. Though somewhat vague, Pena's argument appears to be that once the trial judge acknowledged the questionable nature of the evidence, she ‘abdicated her role’ by not holding a Daubert hearing and instead requiring Pena to produce data and experts to demonstrate why the evidence should not be admitted. This argument also fails.

“A district court does not abuse its discretion by dispensing with a Daubert hearing if no novel challenge is raised. Here, Pena raised no new favorable case law or expert testimony to challenge the admissibility of the fingerprint identification evidence, instead citing only a single 2002 student note from the Fordham Law Review.”
Pena, 586 F.3d at 111 n.4 (citation omitted).

Pena presents another embrace of fingerprint analysis by a circuit. In some ways, its reception in the First circuit seems even more enthusiastic than its affirmation by other circuits. See Tenth Circuit Joins Consensus On Admissibility Of Fingerprint Evidence. For other cases noting the discretion of the trial court on whether to hold a Daubert hearing, see Full Daubert Hearing Is Not Always Required To Admit Expert Testimony (I), (II), (III), (IV).

Federal Rules of Evidence