Of Daubert and Fingerprints
Sanow, Ed, Law & Order
For the first time, a federal judge has excluded expert testimony based on fingerprint evidence. Based on the U.S. Supreme Court decisions in Daubert v. Merrell Dow Pharmaceuticals (1993) and Kumho Tire v. Carmichael (1999), the revised Federal Rule 702 made trial judges ensure that all scientific testimony and evidence is both relevant and reliable.
The four "Daubert factors" are: whether the technique has been tested; whether the technique is subject to peer review; the rate of error and existence of standards controlling the technique; and general acceptance of the technique.
In United States v. Llera Plaza, Acosta and Rodriguez the federal judge took judicial notice of the uniqueness and permanence of fingerprints. However, he found the four-step process to match a latent crime scene print to a rolled complete print did not meet the new standards.
While the Analysis and Comparison phases were deemed objective enough to meet Rule 702, the Evaluation and Verification phases were not. In fact, the process met only the last of the Daubert factors- general acceptance- which was the original Frye test that the fourprong Daubert factors replaced.
No, fingerprint evidence has not been thrown out. Expert witnesses in United States v. Llera Plaza, et al may testify how prints were obtained, analyzed and compared, but may not give an expert opinion that an unidentified latent print matches an identified rolled print. Guess who gets to determine whether or not it is a match? The jury.
In his 54-page report, the judge made dozens of reasonable, credible and thoughtful points. This suppression decision may be reversed on appeal, and even if affirmed, will only apply to the Eastern District of Pennsylvania. Either way, this case should serve as a wakeup call to the entire forensics and investigative community. …