In conspiracy to possess marijuana and illegal firearm possession prosecution, expert fingerprint testimony identifying the defendant’s thumb print on guns and ammunition was admissible under FRE 702 and Daubert even though the defendant raised “questions regarding whether fingerprint analysis can be considered truly scientific in an intellectual, abstract sense”; circuit extensively explored the current argument regarding admissibility of fingerprint evidence under the ACE-V (analysis, comparison, evaluation, and verification) process for determining matches applying the Daubert admissibility factors, in United States v. Baines, 573 F.3d 979 (10th Cir. July 20, 2009) (No. 08-2098)
As applied by the circuits, fingerprint expert testimony has repeatedly passed muster under FRE 702 and the Daubert expert witness admissibility standard. See Daubert v. Merrill Dow Pharm., 509 U.S. 579, 593-94 (1993). Since 2000, at least six circuits have specifically approved the use of fingerprint experts at trial, including:
- Third Circuit: United States v. Mitchell, 365 F.3d 215, 241 (3d Cir. 2004) (no abuse of discretion in admitting expert latent fingerprint identification evidence in a criminal case)
- Fourth Circuit: United States v. Crisp, 324 F.3d 261, 267-72 (4th Cir. 2003) (no abuse of discretion in admitting expert fingerprint testimony which satisfied Daubert standard)
- Seventh Circuit: United States v. Havvard, 260 F.3d 597, 600-01 (7th Cir. 2001) (“The issue of the reliability of fingerprint evidence after Daubert appears to be one of first impression in this circuit,” but that “establishing the reliability of fingerprint analysis was made easier by its 100 years of successful use in criminal trials” and “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.”)
- Eighth Circuit: United States v. Collins, 340 F.3d 672, 682 (8th Cir. 2003) (“Fingerprint evidence and analysis is generally accepted.”)
- Ninth Circuit: United States v. Calderon-Segura, 512 F.3d 1104, 1110 (9th Cir. 2008) (“Given the familiar subject matter [expert testimony regarding fingerprint identification] and the defense's failure to show cause for questioning the evidentiary reliability of exemplar fingerprint identification methods, this is just the sort of routine case where evidentiary reliability was properly taken for granted.”)
- Eleventh Circuit: United States v. Abreu, 406 F.3d 1304, 1307 (11th Cir. 2005) (“This court has not published an opinion regarding the admissibility and reliability of fingerprint evidence under Daubert. Other Circuits, however, have found that fingerprint evidence is sufficiently reliable and meets the standards of Fed. R. Evid. 702. We agree with the decisions of our sister circuits and hold that the fingerprint evidence admitted in this case satisfied Daubert.”) (citations omitted)
In a recent case, the Tenth Circuit joined this constellation of circuits, affirming a district court's finding that fingerprint expert testimony was admissible. Although the fingerprint expertise failed to satisfy all of the Daubert factors, the testimony was admissible based on the ability to satisfy the known error rate and acceptance in the field factors.
In the case, defendant Baines was convicted for conspiring to possess marijuana with intent to distribute and with possession of a firearm by a felon and in furtherance of a drug trafficking crime, among other charges. His sole issue on appeal concerned the admissibility of fingerprint analysis, specifically: “The process used for determining whether a latent print matches a known print has been given the acronym ACE-V, with the letters standing for the steps in a four-stage process: (1) analysis, (2) comparison, (3) evaluation, and (4) verification.” Baines, 573 F.3d at 983.
The trial court admitted the fingerprint evidence after conducting a Daubert hearing. Two government witnesses testified about the reliability of fingerprint analysis. The “core” of the defendant's challenge to the witness's testimony was “that fingerprint analysis rests substantially on the subjective interpretations of the examiner” and accordingly could not be scientifically reliable as required by Daubert. The trial judge rejected this challenge, saying that the subjective nature of the interpretation “went to the weight of the evidence, not its admissibility, and she quoted Daubert's observation that '[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.'“ Baines, 573 F.3d at 985.
The Tenth Circuit affirmed the trial judge's admission of the fingerprint expert evidence as not an abuse of discretion. The circuit carefully laid out the differing positions taken by the parties and assessed the nature of the proffered fingerprint evidence in relation to the flexible factors set out by Daubert.
In its analysis, the circuit noted that the proponent of the expert testimony has the burden, under FRE 702, to show: “(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.” Five non-exclusive factors are normally applied to assess the reliability of the expert testimony:
“(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.”Baines, 573 F.3d at 985 (citing Daubert, 509 U.S. at 593-94).
With regard to the expert fingerprint testimony, the circuit noted that the evidence satisfied some Daubert factors and not others:
- First Daubert Factor - Reliability - “Somewhat” Satisfied: The circuit agreed “with defendant that this record does not show that the technique has been subject to testing that would meet all of the standards of science, it would be unrealistic in the extreme for us to ignore the countervailing evidence. Fingerprint identification has been used extensively by law enforcement agencies all over the world for almost a century. Fingerprint analysts ... have been certified by the FBI, have undergone demanding training culminating in proficiency examinations, followed by further proficiency examinations at regular intervals during their careers. Although these proficiency examinations have been criticized on several grounds ... we see no basis in this record for totally disregarding these proficiency tests. In conclusion, on this record we believe that the first Daubert factor weighs somewhat in favor of admissibility, although not powerfully.” Baines, 573 F.3d at 990.
- Second Daubert Factor - Peer Review - Not Satisfied: The circuit also concluded that the government failed to show that the theory or process underlying fingerprint analysis had been subject to peer review and publication -- Daubert's second factor. Instead, the court found that the evidence cited was “too vague and sketchy to enable us to assess the nature of the professional dialogue offered.” Baines, 573 F.3d at 990.
- Third Daubert Factor - Error Rate - Satisfied: The third Daubert factor -- an “acceptable” error rate -- was “strongly supported” by the record, particularly because the “known error rate remains impressively low. We are not aware of any attempt to quantify the maximum error rate that could meet Daubert standards, but surely a rate considerably higher than one per 11 million could still pass the test.” Baines, 573 F.3d at 991.
- Fourth Daubert Factor - Applicable Standards - Not satisfied: The circuit assumed arguendo that the fourth Daubert factor -- “the existence and maintenance of standards controlling the technique's operation” -- would not support admissibility in the defendant's case. According to the circuit, “The ACE-V system is a procedural standard but not a substantive one. Critical steps in the process depend on the subjective judgment of the analyst. We hasten to add that subjectivity does not, in itself, preclude a finding of reliability. But in searching this record for evidence of standards that guide and limit the analyst in exercise of these subjective judgments, we find very little.” Baines, 573 F.3d at 991 (citing United States v. Mitchell, 365 F.3d215, 241 (3d Cir. 2004) (“ACE-V ... and terminological standards ... are insubstantial in comparison to the elaborate and exhaustively refined standards found in many scientific and technical disciplines. As such, we find that this factor does not favor admitting the [fingerprint] evidence”)).
- Fifth Daubert Factor - General Acceptance - Satisfied: On the Fifth Daubert Factor -- whether the technique has attained general acceptance in the relevant scientific or expert community -- the circuit looked to Kuhmo Tire as providing the correct approach. “[T]he field of fingerprint analysis is dominated by agents of law enforcement, with apparently little presence of disinterested experts such as academics,” noted the circuit. With a general acceptance of fingerprint analysis by law enforcement officials “nationwide and internationally,” the circuit rejected the defense contention that the test is failed by fingerprint analysis because it has not been accepted in “any unbiased scientific or technical community.” “[W]hile we acknowledge that acceptance by a community of unbiased experts would carry greater weight,” noted the circuit, “we believe that acceptance by other experts in the field should also be considered. And when we consider that factor with respect to fingerprint analysis, what we observe is overwhelming acceptance” which satisfies the fifth Daubert factor. Baines, 573 F.3d at 991.
In balancing these factors, the circuit was guided by “two overriding principles”:
“The first is that our review here is deferential, limited to the question of whether the district judge abused her considerable discretion. The second is that the Rule 702 analysis is a flexible one, as both Daubert and Kumho Tire teach. The Daubert factors are “meant to be helpful, not definitive,” and not all of the factors will be pertinent in every case.”Baines, 573 F.3d at 992 (quoting Kumho Tire, 526 U.S. at 150-51). The record supported the district court’s finding that the expert fingerprint testimony was “sufficiently reliable.”
Although the Tenth Circuit's conclusion on the admissibility of fingerprint expert analysis was in accord with other circuits, the court noted that while new standards may evolve on the use of expert testimony, that should not preclude the use of expert testimony at trial:
“In closing, we echo the thoughts of Judge Pollak, who said regarding the desirability of research to provide the scrutiny and independent verification of the scientific method to aid in assessing the reliability of fingerprint evidence, that such efforts would be ‘all to the good. But to postpone present in-court utilization of this ‘bedrock forensic identifier’ pending such research would be to make the best the enemy of the good.’”Baines, 573 F.3d at 992 (quoting United States v. Llera Plaza, 188 F.Supp.2d 549, 572 (E.D.Pa. 2002)).
The extensive Baines opinion provides an interesting and useful example concerning the application of the Daubert factors to expert testimony. For other blog posts involving fingerprint expert testimony, see:
- Fingerprint Expert Testimony Satisfied Daubert Reliability Factors
- Full Daubert Hearing Is Not Always Required To Admit Expert Testimony (Part III)
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