Fingerprint Expert Testimony Satisfied Daubert Reliability Factors

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In case of “first impression,” Seventh Circuit agreed with district court that fingerprint expert testimony was reliable, in United States v. Havvard, 260 F.3d 597, 600 (7th Cir. 2001), and United States v. Havvard, 117 F. Supp. 2d 848 (S.D. Ind. 2000)

How does fingerprint expert testimony pass muster under the Daubert expert admissibility standard? A Seventh Circuit case, which is commonly cited to support the admission of fingerprint expert testimony, considered this issue as a matter of first impression in 2001.

In the case, defendant Havvard was charged with being a felon in possession of a firearm after several firearms were found in his grandmother’s residence where he was believed to be staying. His latent print was identified on one recovered firearm. Before trial, he moved to exclude the fingerprint expert testimony as unreliable under Daubert?. After his conviction, he challenged the admission of the fingerprint expert testimony at trial.

The Seventh Circuit affirmed the admission of the expert testimony. In reviewing the appeal, the circuit noted: “The issue of the reliability of fingerprint evidence after Daubert appears to be one of first impression in this circuit, and few other courts have addressed this question.” Havvard, 260 F.3d at 600. The district court held a Daubert hearing and considered the testimony of a FBI fingerprint expert who was not familiar with the facts of the case. The circuit agreed with the lower court that the fingerprint expert testimony satisfied the reliability factors under Daubert:

“The district court recognized that establishing the reliability of fingerprint analysis was made easier by its 100 years of successful use in criminal trials, and appropriately noted that nothing presented at the hearing undermined [FBI fingerprint expert] Meager's testimony. Most importantly, it is clear from the district court's thorough order that it properly considered the Daubert factors in analyzing Havvard's motion and concluded that fingerprinting techniques have been tested in the adversarial system, that individual results are routinely subjected to peer review for verification, and that the probability for error is exceptionally low. See Kumho, 526 U.S. at 150.”
Havvard, 260 F.3d at 601.

The district court’s published opinion analyzed the Daubert reliability factors, and is worth reviewing to consider how these factors were applied:

“The court has adapted the Daubert reliability factors to this case, and those factors strongly support the reliability of latent print identification despite the absence of a single quantifiable threshold.

“First, the methods of latent print identification can be and have been tested. They have been tested for roughly 100 years. They have been tested in adversarial proceedings with the highest possible stakes – liberty and sometimes life. The defense has offered no evidence in this case undermining the reliability of the methods in general. The government points out correctly that if anyone were to come across a case in which two different fingers had identical fingerprints, that news would flash around the legal world at the speed of light. It has not happened in 100 years.

“Further, the methods can be tested in any individual case. Any identification opinion must be based on objective information – the latent image and the known exemplar – that is equally available to any qualified examiner for comparison and possible disagreement. A single unexplained discrepancy between a latent print and a known exemplar is enough to falsify an opinion of identification. Next, the methods of identification are subject to peer review. As just stated, any other qualified examiner can compare the objective information upon which the opinion is based and may render a different opinion if warranted. In fact, peer review is the standard operating procedure among latent print examiners.

Daubert refers to publication after peer review, which is important in evaluating scientific evidence because it shows that others qualified in a field have evaluated the method or theory outside the context of litigation and have found it worthy of publication. The factor does not fit well with fingerprint identification because it is a field that has developed primarily for forensic purposes. The purpose of the publication factor is easily satisfied here, however, because latent fingerprint identification has been subject to adversarial testing for roughly 100 years, again in cases with the highest stakes possible. That track record provides far greater assurance of reliability than, for example, publication of one peer-reviewed article describing a novel theory about the cause of a particular disease at issue in a civil lawsuit.

“Another Daubert factor is whether there are standards for controlling the technique. There are such standards through professional training, peer review, criticism, and presentation of conflicting evidence.

“Another Daubert factor is whether there is a high known or potential error rate. There is not. The defense has presented no evidence of error rates, or even of any errors. The government claims the error rate for the method is zero. The claim is breathtaking, but it is qualified by the reasonable concession that an individual examiner can of course make an error in a particular case. See Moenssens, et al., Scientific Evidence in Civil and Criminal Cases at 516 (“in a great number of criminal cases” defense experts have undermined prosecution by showing faulty procedures or human errors in use of fingerprint evidence).

“Most important, an individual examiner’s opinion can be tested and challenged for error by having another qualified examiner compare exactly the same images the first one compared. See also Daubert, 509 U.S. at 596 (“Vigorous 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.”).

“Even allowing for the possibility of individual error, the error rate with latent print identification is vanishingly small when it is subject to fair adversarial testing and challenge. It is certainly far lower than the error rate for other types of opinions that courts routinely allow, such as opinions about the diagnosis of a disease, the cause of an accident or disease, whether a fire was accidental or deliberate in origin, or whether a particular industrial facility was the likely source of a contaminant in groundwater. As these examples indicate, the fact that some professional judgment and experience is required also does not mean that expert testimony is inadmissible. It is instead the hallmark of expert testimony, so long as it can otherwise meet the standards of reliability set forth in Daubert and Kumho Tire.

“In sum, despite the absence of a single quantifiable standard for measuring the sufficiency of any latent print for purposes of identification, the court is satisfied that latent print identification easily satisfies the standards of reliability in Daubert and Kumho Tire. In fact, after going through this analysis, the court believes that latent print identification is the very archetype of reliable expert testimony under those standards. At the request of the government, the court has prepared this written opinion so that other courts might avoid unnecessarily replicating the process of establishing these points as they try to ensure they comply with the Supreme Court’s directive to ensure that all types of expert testimony are subject to screening for reliability.”

Havvard, 117 F. Supp. 2d at 855.

The Havvard decision has been cited favorably by other courts, including

The application of the Daubert reliability factors was also noted in Handwriting Expert Testimony Satisfied Five Daubert Reliability Factors.

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