Seventh Circuit rejects “frontal assault” to fingerprint expert testimony claiming the identification of the defendant’s latent prints was unreliable; while a fingerprint comparison involves “subjective judgments,” circuit concludes that “responsible fingerprint matching” based on the training and experience of the examiner is admissible” under FRE 702, in United States v. Herrera, _ F.3d _ (7th Cir. Jan. 9, 2013) (No. 11-2894)
Expert fingerprint identification is generally considered admissible under FRE 702. See, e.g., Tenth Circuit Joins Consensus On Admissibility Of Fingerprint Evidence. In a recent case, the Seventh Circuit considered a challenge to expert fingerprint testimony based on a claim that the identification was unreliable based on subjective judgments made by the examiner.
In the case, the defendant was prosecuted for heroin distribution. The government offered a fingerprint expert to identify “two of the defendant’s fingerprints had been recovered from a bag of heroin wrapped in tape and further encased in condoms and found in a drug courier’s rectum.” Herrera, _ F.3d at _. After his conviction, the defendant challenged the admissibility of the fingerprint expert testimony as unreliable.
The Seventh Circuit noted that the defendant was “mounting a frontal assault on the use of fingerprint evidence in litigation.” The identification was based on the common ACE-V method (analysis, comparison, evaluation, and verification). As the circuit explained the method:
The [ACE-V] process begins with the analysis of the unknown friction ridge print (now often a digital image of a latent print). Many factors affect the quality and quantity of detail in the latent print and also introduce variability in the resulting impression . . . . If the examiner deems that there is sufficient detail in the latent print (and the known prints), the comparison of the latent print to the known prints begins.
Visual comparison consists of discerning, visually “measuring,” and comparing—within the comparable areas of the latent print and the known prints — the details that correspond. The amount of friction ridge detail available for this step depends on the clarity of the two impressions. The details observed might include the overall shape of the latent print, anatomical aspects, ridge flows, ridge counts, shape of the core, delta location and shape, lengths of the ridges, minutia location and type, thickness of the ridges and furrows, shapes of the ridges, pore position, crease patterns and shapes, scar shapes, and temporary feature shapes (e.g., a wart).
At the completion of the comparison, the examiner performs an evaluation of the agreement of the friction ridge formations in the two prints and evaluates the sufficiency of the detail present to establish an identification (source determination). Source determination is made when the examiner concludes, based on his or her experience, that sufficient quantity and quality of friction ridge detail is in agreement between the latent print and the known print. Source exclusion is made when the process indicates sufficient disagreement between the latent print and known print. If neither an identification nor an exclusion can be reached, the result of the comparison is inconclusive. Verification occurs when another qualified examiner repeats the observations and comes to the same conclusion, although the second examiner may be aware of the conclusion of the first.
Herrera, _ F.3d at _ (citing National Research Council of the National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward, 137-38 (2009)); see also Scientific Working Group on Friction Ridge Analysis, Study and Technology, “Standards for Examining Friction Ridge Impressions and Resulting Conclusions” (Sept. 13, 2011); Michele Triplett & Lauren Cooney, "The Etiology of ACE-V and Its Proper Use: An Exploration of the Relationship Between ACE-V and the Scientific Method of Hypothesis Testing," 56 J. Forensic Identification 345, 346 (2006).
Fingerprint identification is based on “recognizing and categorizing scores of distinctive features in the prints.” Unlike DNA comparisons, “a fingerprint analyst must visually recognize and classify the relevant details in the latent print—which is difficult if the print is incomplete or smudged.” Herrera, _ F.3d at _. The circuit noted that simply because an expert arrives at an opinion based on training and experience does not disallow the jury from considering the expert opinion:
The defendant intimates that any evidence that requires the sponsorship of an expert witness, as fingerprint evidence does, must be found to be good science before it can be admitted under the doctrine of the Daubert case and Rules 702 or 703 of the Federal Rules of Evidence. But expert evidence is not limited to “scientific” evidence, however such evidence might be defined. It includes any evidence created or validated by expert methods and presented by an expert witness that is shown to be reliable. In a case involving an alleged forgery of a painting, there might be expert scientific evidence based on tests of the age of the canvas or paint; but there might also be expert evidence, offered by a dealer or art historian or other art expert, on the style of a particular artist. That evidence would be the expert’s opinion, based on comparison with other paintings, of the genuineness of the painting alleged to be a forgery.
Herrera, _ F.3d at _ (citations omitted).
The circuit noted the training of examiners and low error rate in fingerprint identification:
Fingerprint experts such as the government’s witness in this case—who has been certified as a latent print examiner by the International Association for Identification, the foremost international fingerprint organization (there are only about 840 IAI-certified latent examiners in the world, out of 15,000 total examiners) — receive extensive training; and errors in fingerprint matching by expert examiners appear to be very rare.… The probability of two people in the world having identical fingerprints is not known, but it appears to be extremely low.… The great statistician Francis Galton estimated the probability as 1 in 64 billion.… Yet errors in such matching appear to be very rare, though the matching process is judgmental rather than scientifically rigorous because it depends on how readable the latent fingerprint is and also on how distorted a version of the person’s patent fingerprint it is. Examiners’ training includes instruction on how to determine whether a latent print contains enough detail to enable a reliable matching to another print. Ultimately the matching depends on “subjective judgments by the examiner,” National Research Council, supra, at 139, but responsible fingerprint matching is admissible evidence, in general and in this case.
Herrera, _ F.3d at _
For other cases considering the admissibility of expert fingerprint identification testimony under the FRE 702 and Daubert standards, see:
- United States v. Baines, 573 F.3d 979, 990-92 (10th Cir. 2009) (circuit extensively explored the admissibility of fingerprint evidence under the ACE-V (analysis, comparison, evaluation, and verification) process for determining matches applying the Daubert admissibility factors); see also Tenth Circuit Joins Consensus On Admissibility Of Fingerprint Evidence
- United States v. Mitchell, 365 F.3d 215, 220 (3d Cir. 2003) (trial court held Daubert hearing on fingerprint expert testimony concerning “the identification of fingerprints found on the gear shift lever and driver's side door of the beige getaway car”)
- United States v. Havvard, 260 F.3d 597, 600 (7th Cir. 2001) (in felon in possession of a firearm, trial court considered the Daubert factors concerning fingerprint expert testimony identifying the defendant’s latent print on recovered firearm; affirming admission of expert testimony); see also Fingerprint Expert Testimony Satisfied Daubert Reliability Factors
- United States v. George, 363 F.3d 666, 673 (7th Cir. 2004) (“while an actual print taken in the field cannot be objectively tested, we are satisfied that the method in general can be subjected to objective testing to determine its reliability in application”)
- United States v. Crisp, 324 F.3d 261, 269 (4th Cir. 2003) (concluding the defense “has provided us no reason today to believe that this general acceptance of the principles underlying fingerprint identification has, for decades, been misplaced”)
The Herrera case reviews the admissibility of expert fingerprint testimony, which has been largely been accepted by the courts absent unusual issues in a particular examination. As the case notes, fingerprint identification entails comparisons and judgments made consistent with established standards. It is not like DNA identification which involves scientific testing comparing genetic code. The analysis may be useful for other areas of expert opinion which also involve subjective comparisons based on training and experience.
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