U.S. v. LLERA PLAZA

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

The defendants' and government's motions bring into question (1) whether each individual has a unique set of fingerprints and, if so, whether these unique fingerprints are permanent, and (2) whether latent prints — fragments of fingerprints "lifted" from a surface touched by an unidentified person — can accurately be matched to "rolled" prints — complete fingerprints that are obtained from an identified person through established fingerprinting procedures. These questions warrant a preliminary examination of what fingerprints are, what the basic premises of fingerprint identifications are, and how fingerprints are identified.

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:

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):

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:

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.

Id. at 113-14. After analysis:

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:

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:

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

Several courts have addressed the issue of whether fingerprint identifications are admissible as expert testimony under Federal Rule of Evidence 702, and, since the Supreme Court's Daubert ruling, all have come to the conclusion that fingerprint testimony should be admitted.*fn12 In the Eastern District of Pennsylvania, fingerprint testimony has been considered and admitted in two cases, United States v. Mitchell, Cr. No. 96-407 (E.D.Pa. Sept. 13, 1999), and United States v. Ramsey, Cr. No. 01-5-4 (E.D.Pa. Sept. 21, 2001). In Mitchell, my colleague Judge Joyner took judicial notice of the uniqueness and permanence of friction ridges, permitted fingerprint examiners to testify as experts, and reserved for the jury the issue of "whether or not there's been a positive identification pursuant to whatever standards are applicable." Mitchell, Cr. No. 96-407, at 4-5. In Ramsey, my colleague Judge Yohn held that fingerprint identification techniques are scientifically reliable and that fingerprints are unique and permanent. Ramsey, Cr. No. 01-5-4, at 5-6, 12.

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.

Fed.R.Evid. 201(b). Under some circumstances, the trial judge must take judicial notice of adjudicative facts: "A court shall take judicial notice if requested by a party and supplied with the necessary information." Fed.R.Evid. 201(d). Even when not required to do so, trial judges may take judicial notice of an adjudicative fact as a matter of discretion: "A court may take judicial notice, whether requested or not." Fed.R.Evid. 201(c). Judicial notice under either the mandatory or discretionary subsection is only appropriate when "particular facts are outside the area of reasonable controversy . . . . A high degree of indisputability is the essential prerequisite." Fed.R.Evid. 201(a), advisory committee note. The government contends that this court should take judicial notice of both the uniqueness and the permanence of fingerprints under the mandatory subsection of Rule 201. Gov't Mot. & Resp. at 113.

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":