Busted, tried and convicted! That is the verdict police expect when forensic technicians match a fingerprint found at the scene of the crime to a suspect. Long considered an infallible means of personal identification, latent fingerprints lifted from a murder weapon used to mean one word to detectives: Gotcha!
But, perhaps, not anymore.
U.S. District Judge Louis H. Pollak of the Eastern District of Pennsylvania recently rocked forensic-evidence technicians with a landmark decision that could change forever how fingerprints are viewed in the courtroom. In an ongoing drug-related murder trial, U.S. v. Plaza, Pollak ruled in January that fingerprint experts no longer may tell juries that two prints are a match. His ruling is considered a major victory for defense attorneys, especially coming from a judge with the stature of Pollak -- a former dean of both the Yale and University of Pennsylvania law schools -- who routinely is invited to sit on the U.S. Court of Appeals.
"The ruling is great," says Douglas J. Wood, a Maryland defense attorney who recently won an acquittal for a 26-year-old Largo, Md., man charged with carjacking and attempted murder of a police officer by challenging the credibility of fingerprint evidence. "Prosecutors used to put a fingerprint examiner up on the stand and our job was to get him off as quickly as possible. When they said they had a match you knew you were [screwed]. Now I will never stipulate to fingerprint evidence again."
Wood called no defense witnesses to persuade the jury that Derrell Lamont Gilchrist was innocent. Instead, the defense attorney dumped much of the same technical attacks on the methodology of fingerprinting as presented to Pollak on the lap of a Maryland examiner -- who seemed dumbfounded that a growing number of academics are charging that fingerprinting has little to do with science. "She was so unfamiliar with the literature that in one way she looked incompetent," Wood says. "She didn't come across well. That was critical to winning the case."
Since 1999 most of that literature has been reviewed by jurists in nearly two dozen lower-court cases and three appellate-court decisions. All those courts ruled in favor of fingerprint evidence, noting it has been widely accepted and deemed reliable since 1911. Pollak became the first influential jurist to issue a judicial notice that the so-called "science of fingerprint evidence" is insufficient to determine what constitutes a match.
Pollak noted that while fingerprints are indeed "unique" and "permanent," they fail the "Daubert test," the standard used to judge whether evidence was collected scientifically. The Daubert test grew out of the landmark 1993 U.S. Supreme Court case Daubert v. Merrell Dow, which involved allegations that the morning-sickness drug Bendectin causes birth defects. To pass the Daubert test, fingerprinting must have testability, error rates, peer review and standards. It doesn't
In his written opinion, Pollak stated that fingerprint science has not been tested in a scientific sense. "It makes sense to rely on scientific testing, rather than `adversarial' courtroom testing, because to rely on the latter would be to vitiate the gatekeeping role of federal trial judges. If adversarial testing were the benchmark -- that is, if the validity of a technique were submitted to the jury in each instance -- then the preliminary role of the judge in determining the scientific validity of a technique would never come into play," he wrote. "Thus, even 100 years of adversarial testing in court cannot substitute for scientific testing when the proposed expert testimony is presented as scientific in nature."
Pollak said he was impressed with David Stoney, the director of the McCrone Research Institute in Chicago, who testified that a fingerprint examiner does not make "a scientific examination. It is a subjective determination standard. It is a subjective determination without objective standards to it. …