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January 7, 2002


The opinion of the court was delivered by: Pollak, District Judge


Currently before the court is defendants' Motion to Preclude the United States from Introducing Latent Fingerprint Identification Evidence,*fn1 in which defendants contend that evidence relating to fingerprints fails to conform to the standard for admitting expert testimony under Federal Rule of Evidence 702, as interpreted by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). The United States has responded to defendants' motion by submitting a Combined Motion in Limine to Admit Latent Print Evidence and Response to Defendant Acosta's Motion to Preclude the Introduction of Latent Fingerprint Identification Evidence. In this combined motion and response, the government has moved the court to (1) admit fingerprint evidence at trial and (2) take judicial notice of the uniqueness and permanence of fingerprints. Defendants have submitted a Reply Memorandum of Law in Support of Mr. Acosta's Motion to Exclude the Government's Latent Fingerprint Identification Evidence. In support of their respective positions, the defendants and the government have agreed by stipulation to rely on the testimony regarding fingerprint evidence that was presented to my colleague Judge Joyner in 1999 in United States v. Mitchell, Cr. No. 96-407 (E.D.Pa.). The testimony that is referred to in the remainder of this opinion is drawn from the Mitchell hearing.*fn2

I. Background: Fingerprints and Their Identification

A. What Fingerprints Are

At the Mitchell hearing, government witness Dr. William Babler, a former President of the American Dermatoglyphics Association,*fn3 professor of gross anatomy, and embryologist, gave testimony on his research on the prenatal development of fingerprints. According to Dr. Babler, friction ridges — in simple terms, the lines on the ends of fingers that are arranged in patterns — start forming when the fetus is in the ninth or tenth week of development. Test. Babler, Tr. July 7, 1999, at 35-36.*fn4 He described these early formations as primary friction ridges, which develop "deep to the surface of the skin." Id. at 40. At about fourteen weeks, sweat glands or sweat ducts begin to form, "start[ing] out as proliferations from the primary ridge. They grow down into the dermis and they ultimately mature into a duct and into a gland." Id. at 44. The deep, primary ridges proliferate until sometime between the fetus's fifteenth and seventeenth weeks of development, when primary ridges stop proliferating and secondary ridges begin to form. These secondary ridges, which begin to appear on the skin surface at about week seventeen, mature from weeks seventeen through twenty-four. According to Dr. Babler:

[T]his interface between the epidermis and the dermis really provides a template of the configuration of the friction ridges on the surface. And this template tends to be permanent. It does not change. Unless it gets injured, and it would take a deep injury. It would take an injury that would pierce through that interface such as a deep knife wound, or a deep burn to actually distort this template at the epidermal, dermal interface.

Id. at 47. In sum, "at the stage of 17 weeks then, we see that the friction ridge basically has become permanent and fixed on the surface of the skin. And it does not change thereafter." Id. at 50.

Dr. Babler also discussed factors that may affect the arrangement of friction ridges, including genetics, environmental factors, chemicals, disease, and perhaps the shape of the volar pad (end of the finger):

[T]here are many different factors, many, many different factors that influenced the development of the friction ridge and ultimately the development of its secondary characteristics, the minutiae, the actual shape of the ridge itself. All these are so numerous and so individual that they — that I cannot conclude anything but that each and every friction ridge and their arrangements are individual and specific.

Id. at 63.*fn5

Fingerprint examiners refer to three levels of detail that can be observed on mature fingerprints. At the first level of detail, an examiner looks at the overall pattern of a fingerprint. These overall patterns are described as whorl patterns, loop patterns, and arch patterns. See, e.g., id. at 53. According to the testimony of Sergeant David Ashbaugh, a fingerprint specialist of the Royal Canadian Mounted Police, level two detail consists of "a path of ridges," which are islands (a group "of individual ridge units fused together"), or bifurcations ("friction ridges splitting into two"). Test. Ashbaugh, Tr. July 7, 1999, at 99-101. Stephen Meagher, an FBI unit chief and supervisory fingerprint specialist whom the government has listed as a witness in the case at bar,*fn6 testified in Mitchell that when fingerprint examiners look at level two detail, they often look for points (referred to as "Galton points") on the ridges that the latent and rolled prints have in common. Test. Meagher, Tr. July 8, 1999, at 79, 83.*fn7 The most intricate level of detail — level three detail — consists of "minutiae," including sweat pores and their structures. Id. at 74.*fn8

B. The Two Premises of Fingerprint Examination: Uniqueness and Permanence

The process of examining fingerprints is based on two premises — that each person's fingerprints are unique and that they are permanent. The government's contention that fingerprints are unique is supported in part by Dr. Babler's testimony that the prenatal development of fingerprints is affected by "many different factors." Test. Babler, Tr. July 7, 1999, at 63. The government also relies on a survey directed by Mr. Meagher, in which he sent the latent fingerprints and ten-print card (rolled fingerprints) of Byron Mitchell, the defendant in Mitchell, to law enforcement agencies in all fifty states. The state fingerprint examiners were asked, inter alia, whether the rolled prints matched any prints in their repositories.*fn9 Except for West Virginia, which did not have sufficient technological capabilities, the state agencies used automated or computer-run programs to compare Mr. Mitchell's ten-print card with the records in their repositories. The only state that had a "hit" was Pennsylvania, the state in which Mr. Mitchell was incarcerated. Test. Meagher, Tr. July 8, 1999, at 126.

The government also bases its claim of uniqueness on an algorithmic study, dubbed the 50k x 50k study, in which 50,000 fingerprints, all in loop arrangements and taken from white males, were compared with each other. The goal of this study, which was comprised of two separate tests, was to determine the probability that fingerprints of two people could be identical. Id. at 157-58. Donald Ziesig, an algorithmist at Lockheed Martin Information Systems who played an important role in developing the FBI's computer-based fingerprint system (the Automatic Fingerprint Identification System, or AFIS), Test. Ziesig, Tr. July 9, 1999, at 32-39, was a developer of the 50k x 50k study and explained in detail how it operated. Id. at 50-80. The result of the first test, in which full-sized, one inch fingerprints were compared with each other, was that the probability of finding two people with identical fingerprints was one in ten to the ninety-seventh power. Id. at 68, 73. In the second test, the rolled prints were artificially cropped to the average size of latent prints so that only the center 21.7% of the rolled prints was analyzed, with the resultant conclusion that the probability of finding two different, partial fingerprints to be identical was one in ten to the twenty-seventh power. Id. at 73-74.

The government also contends, based on Dr. Babler's testimony, that fingerprints do not change over time, but are permanent. In particular, Dr. Babler testified that "at the stage of 17 weeks then, we see that the friction ridge basically has become permanent and fixed on the surface of the skin. And it does not change thereafter." Test. Babler, Tr. July 7, 1999, at 50. These two premises — uniqueness and permanency — provide the basis for associating a particular fingerprint with a particular individual, and for matching latent fingerprints with rolled fingerprints.

C. Examination of Fingerprints

A fingerprint examiner's job consists of comparing latent and rolled fingerprints to determine if the person who left the latent prints can be identified. The FBI describes latent prints in a training manual:

[T]he ridges of the fingers and palms are in intermittent contact with other parts of the body, such as the hair and face, and with various objects, which may leave a film of grease or moisture on the ridges. In touching an object, the film of moisture and/or grease may be transferred to the object, thus leaving an outline of the ridges of the fingers or palm thereon. This print is called a latent impression, the word "latent" meaning hidden, that is, the print many times is not readily visible.

U.S. Dep't Justice, Fed'l Bur. Investigation, The Science of Fingerprints: Classification and Uses 170, reproduced at Def. Mot. Ex. 9.

According to the testimony of Mr. Meagher, latent prints are usually incomplete — the average size of a latent print is 21.7% the average size of a rolled print, Test. Meagher, Tr. July 8, 1999, at 162-63 — and are often distorted. Distortion is due to the manner in which the finger comes into contact with the surface, the nature of the surface on which the print is left, and the property of the material and/or medium that is used to "lift" the latent print. Test. Ashbaugh, Tr. July 7, 1999, at 160. Rolled fingerprints, by contrast, are obtained from known persons and are taken under controlled circumstances. The average size of a rolled fingerprint is one square inch. Id. at 98.

In comparing latent and rolled prints, fingerprint examiners employ a process known as "ridgeology"*fn10 or ACE-V, an acronym for "analysis," "comparison," "evaluation," and "verification." Sergeant Ashbaugh testified that, during the analysis stage, examiners look at the unknown, or latent, print and note both the "anatomical aspects" of the fingerprint and the clarity of the print. He described the analysis stage in some detail:

Does it have first, second and third level detail or a combination?

What is the clarity of the print? We would then look at all the ridge paths, all the ridge arrangements. We'd explore ridge shapes and we would note any red flags.

Red flags — I'll be very brief with this because it is a very large area — we would look for any lines running in the print that could have been caused by pressure, substraight [sic] or matrix smears. We would look for areas of fat ridges, possibly that could be caused by overlapping ridges. We'd look for differing amounts of pressure. We'd look for similar ridge characteristics close to each other. This could mean a double tap, two pressures and a [sic] again, an overlapping print. We'd look for shadows, shadow ridges in the furrows, which also could mean two prints deposited.

We'd look for misaligned ridges protruding into the furrow. We'd look for cross-over ridges running through the furrow and, of course, we'd look for inappropriate print outline.

Id. at 113-14. After analysis:

[W]e move on to comparison, and comparison is carried out in sequence or systematically and we start — first of all, we would look at first level detail, is the overall pattern configuration in agreement. And then we would look at — start at an area that is common to both the unknown and the known print. And we would start at a common area and we start systematically comparing all the various friction ridge arrangements and friction ridge shapes, including relative pore position, if it's at all possible.
The comparison is something that is very objective. We're dealing with physical evidence and if I discuss something in the ridge arrangement, I should be able to point to it, so it's a very objective process.
Once the comparison is complete, and we recommend that the whole print be compared, the next thing that we would do is then evaluate what we saw during comparison as far as agreement of the various ridge formations. And I break it down into actually two separate areas. The first area is, do I have agreement? If you say yes to that, if you form the opinion you have agreement, then you have to ask yourself, is there sufficient unique detail present to individualize?
That final decision is a subjective decision. It's based on your knowledge and experience and your ability. And that, if you say yes, I feel there's enough to individualize, then you formed an opinion of identification.
The conclusions that we recommend that are available to you at the end of identification, would be elimination, which usually would start very early in the identification process, identification, a situation where you have sufficient volume of unique details to individualize. And a situation where you have agreement, but you're unable to individualize or eliminate. And, in other words, you can't differentiate from others. And those are the three conclusions that we recommend that you can form.
From there we move into the very last box, which deals with the verification, which is a form of peer review, and it is part of the scientific process. From this point the person actually starts right at the beginning and goes through the whole identification process again individually.

Id. at 114-16.

In some state jurisdictions in the United States, and in some foreign jurisdictions, fingerprint examiners must find a minimum number of Galton points (characteristics on the fingerprint ridges) in common before they can declare a match with absolute certainty. Id. at 143-45. The FBI switched from relying on a mandatory minimum number of points to no minimum number in the late 1940s. Test. Meagher, Tr. July 8, 1999, at 105.*fn11 Testifying in United States v. Havvard, 117 F. Supp.2d 848 (S.D.Ind. 2000), aff'd 260 F.3d 597 (7th Cir. 2001), Mr. Meagher discussed the absence of a uniform standard prescribing a minimum number of points in common as a precondition of finding a match. Judge Hamilton, in his opinion holding fingerprint identification testimony admissible, referred to Mr. Meagher's testimony, which he found persuasive:

Meagher's explanation makes sense, and the court credits it. See also Moenssens, et al., Scientific Evidence in Civil and Criminal Cases at 514-16 (by tradition, latent print examiners in the United States have required a match of at least six to eight characteristics to show identity, but most experts prefer at least ten to twelve; in English courts 14 to 16 matches are required for identity). Professor Moenssens also reports the results of study conducted for the International Association for Identification, which concluded that there was no valid basis for requiring a predetermined minimum number of ridge characteristics, and that an identification opinion must take into account other factors, including the quality and clarity of the impressions. Id.

117 F. Supp.2d at 853.

To aid them in deciding whether a latent fingerprint and a rolled fingerprint were deposited by the same individual, FBI fingerprint examiners are trained in the "quantitative/qualitative process." Test. Meagher, Tr. July 8, 1999, at 78. This process denotes an inverse relationship whereby the more quantity of detail that can be matched, the less clear the print has to be, and vice versa:

For example, if a print has a large number of level two information of Galton details, the quality does not have to be there present to provide level three information.
He can make an identification and individualize strictly based on level two information.
However, the contrary is that if he has small numbers of the level two information, he must then rely on the quality of the image to present additional information which might be present in the level three.

Id. at 79.

After utilizing the ACE-V and quantitative/qualitative processes, an examiner is ready to make a determination with respect to the latent print in question. The three options that the examiner has are described in one of two ways: (1) identification, elimination, or "agreement but not enough to individualize — not enough to eliminate," Test. Ashbaugh, Tr. July 7, 1999, at 154, or (2) "absolutely him, absolutely not him, and absolutely I don't know," id. at 154-55. Whichever terminology is used, the result is the same — an examiner who makes a positive identification is determining that the latent fingerprint necessarily came from the individual in question, "to the exclusion of all other fingers in the world." Id. at 191.

II. Court Decisions Regarding the Admissibility of Fingerprint Testimony

Courts in other circuits have also concluded that fingerprint testimony is sufficiently scientific and reliable to be admitted under Rule 702. Published opinions applying Rule 702 prior to its December 2000 amendment are: United States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996) (finding that the district court did not err in admitting fingerprint testimony); United States v. Havvard, 117 F. Supp.2d at 855 (stating that "latent print identification is the very archetype of reliable expert testimony"), aff'd 260 F.3d 597 (7th Cir. 2001) (reviewing the district court's determination de novo and finding that the district court did not err in its consideration of the Daubert factors as they apply to fingerprint techniques); United States v. Cooper, 91 F. Supp.2d 79, 82 (D.D.C. 2000) (declining to hold a pre-trial Daubert hearing and finding that fingerprint identification techniques are "well-established principles"). Published opinions applying Rule 702 as amended are: United States v. Reaux, 2001 WL 883221, *2 (E.D.La. July 31, 2001) (relying on the Seventh Circuit's opinion in Havvard and admitting fingerprint testimony); United States v. Mart!nez-Cintr"n, 136 F. Supp.2d 17 (D.P.R. 2001) (admitting fingerprint examination testimony); United States v. Joseph, 2001 WL 515213, *1 (E.D.La. May 14, 2001) (finding that fingerprint analysis is "scientific knowledge").

III. Judicial Notice of the Uniqueness and Permanence of Fingerprints

The government requests that this court take judicial notice of the uniqueness and permanence of fingerprints (friction ridges and friction ridge skin arrangements). Gov't Mot. & Resp. at 113. Federal Rule of Evidence 201(b) lays down the types of facts for which judicial notice is appropriate.

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

With respect to the uniqueness of fingerprints, both Dr. Babler and Mr. Ziesig testified, essentially, that their work provides a basis for concluding that fingerprints are unique. Dr. Babler testified that because multiple factors affect the prenatal development of fingerprint ridges, they must be unique. Test. Babler, Tr. July 7, 1999, at 63. While this assertion makes intuitive sense, Dr. Babler did not actually compare fingerprint ridges to determine whether the assertion was factually correct. Mr. Ziesig, however, did undertake such a comparison. As described above, Mr. Ziesig's 50k x 50k study found the probability to be one in ten to the ninety-seventh power that two rolled fingerprints (whether taken from fingers of two different people or from two fingers of the same person) would be identical. Test. Ziesig, Tr. July 9, 1999, at 68, 73. Mr. Ziesig's testimony provides the "necessary information" for this court to take judicial notice of the uniqueness of fingerprints, in accordance with Federal Rule of Evidence 201(d).

Based on his research involving the prenatal development of fingerprints, Dr. Babler testified that fingerprints are permanent. Because the deeply-rooted primary ridges form a template for secondary ridges — the ridges that are visible on the surface of the skin — he conjectured that only a very deep wound could alter a fingerprint. Test. Babler, Tr. July 7, 1999, at 47. Dr. Babler's research provides an adequate basis for this court to take judicial notice of the permanency of fingerprints.

IV. Admission of Expert Testimony

For several decades, the standard for admission of expert testimony was the "general acceptance" standard that was established in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923): "[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." In articulating the "general acceptance" standard, the Frye court addressed only the admissibility of novel scientific evidence. Other courts subsequently extended "general acceptance" as a test of admissibility for all scientific evidence.

Some fifty years after Frye's articulation of the "general acceptance" standard, Congress adopted Federal Rule of Evidence 702, entitled "Testimony by Experts":

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, ...

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