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:
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
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
V. Fingerprint Identifications
The primary question that the parties dispute is whether fingerprint
identifications are scientifically reliable and thus admissible under
Federal Rule of Evidence 702, as construed by the Supreme Court in
Daubert and Kumho Tire. While the four factors discussed in Daubert are
flexible general guidelines, not a rigid test for admissibility,
Daubert, 509 U.S. at 594-95; Kumho Tire, 526 U.S. at 152, the factors do
provide a useful framework for determining whether fingerprint
identifications are scientifically valid and thus reliable, Daubert, 509
U.S. at 594-95. In their submissions in the case at bar, both the
government and the defendants have undertaken to apply the Daubert
factors, albeit with discrepant results. Agreeing with the parties that,
with respect to fingerprint identification evidence, the Daubert factors
constitute a proper touchstone of admissibility, this court will also
proceed along the analytic path marked out by the Daubert factors.
1. Definition of "Testing"
The first Daubert factor is "whether a theory or technique . . . can be
(and has been) tested." 509 U.S. at 593. According to the government,
"[t]he ACE-V process and the experts' conclusions have been tested
empirically over a period of 100 years and in any particular case they
can be tested by examination of the evidence by another expert." Gov't
Mot. & Resp. at 112.
The first clause in the sentence from the government's motion papers
quoted above — "[t]he ACE-V process and the experts' conclusions
have been tested empirically over a period of 100 years" —
apparently refers to the fact that fingerprint identification has been a
customary ingredient of trials for a century. Some courts that have
addressed the admissibility of fingerprint testimony have also equated
the use of fingerprint identifications in court with "testing." In
Havvard, for example, the court stated, "the methods of latent print
identification . . . have been tested for roughly 100 years. They have
been tested in adversarial proceedings with the highest possible stakes
— liberty and sometimes life." 117 F. Supp.2d at 854, aff'd
260 F.3d 597; accord Ramsey, Cr. No. 01-5-4, at 6-7.
"[A]dversarial" testing in court is not, however, what the Supreme Court
meant when it discussed testing as an admissibility factor. In his brief
elaboration on testing, Justice Blackmun quoted an evidence treatise with
approval: "`Scientific methodology today is based on generating hypotheses
and testing them to see if they can be falsified; indeed, this
methodology is what distinguishes science from other fields of human
inquiry.'" Daubert, 509 U.S. at 593 (quoting Green, Expert Witnesses and
Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of
Agent Orange and Bendectin Litigation, 86 Nw. U. L. Rev. 643 (1992)). In
an article on Daubert, Professor Imwinkelried explained the importance of
falsifiability to scientific testing:
Edward J. Imwinkelried, Evidence Law Visits Jurassic Park: The
Far-Reaching Implication of the Daubert Court's Recognition of the
Uncertainty of the Scientific Enterprise, 81 Iowa L. Rev. 55, 62 (1995)
(quotations and citations omitted). Thus, by striving to falsify a
certain premise or outcome, scientists can more closely approximate what
is "true." Id. at 61-62.
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, thereby undermining the essence
of Rule 702 as interpreted by the Court in Daubert. 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. 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.
2. Absence of Testing of Fingerprint Techniques
On the record made in Mitchell, the government had little success in
identifying scientific testing that tended to establish the reliability
of fingerprint identifications.*fn17 By contrast, defense testimony
strongly suggested that fingerprint identification techniques have not
been tested in a manner that could be properly characterized as
scientific. Particularly pointed was the testimony of forensic scientist
David Stoney, the Director of the McCrone Research Institute in Chicago.
According to Dr. Stoney:
The determination that a fingerprint examiner makes
. . . when comparing a latent fingerprint with a known
fingerprint, specifically the determination that there
is sufficient basis for an absolute identification is
not a scientific determination. It is a subjective
determination standard. It is a subjective
determination without objective standards to it.
Test. Stoney, Tr. July 12, 1999, at 87.
Dr. Stoney's point that "[t]he determination that a fingerprint
examiner makes . . . when comparing a latent fingerprint with a known
fingerprint . . . is a subjective determination," was fully confirmed by
the testimony presented by government witnesses Ashbaugh and Meagher.
After describing the "analysis" ingredient of ACE-V, Sergeant Ashbaugh
proceeded to discuss "comparison" and "evaluation" in the following
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
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
Test. Ashbaugh, Tr. July 7, 1999, at 115-16. FBI supervisory fingerprint
specialist Meagher gave very similar testimony:
A: The analysis and comparison process is a very
objective process. The evaluation process is the
subjective opinion of that examiner that he has
reached the conclusion that it's ident, non-ident.
Q: The evaluation, the ultimate determination is a
subjective one, is it not, sir?
Test. Meagher, Tr. July 8, 1999, at 228-29.
The significance of the fact that the determinations are "subjective"
was explained by the further testimony of Dr. Stoney:
Now, by subjective I mean that it [a fingerprint
is one that is dependent
on the individual's expertise, training, and the
consensus of their agreement of other individuals in
the field. By not scientific, I mean that there is not
an objective standard that has been tested; nor is
there a subjective process that has been objectively
tested. It is the essential feature of a scientific
process that there be something to test, that when
that something is tested the test is capable of
showing it to be false.
Test. Stoney, Tr. July 12, 1999, at 87.
B. Peer Review and Publication
The second Daubert factor is "whether the theory or technique has been
subjected to peer review and publication." 509 U.S. at 593.*fn19 As with
the testing factor, the purpose of the inquiry into peer review and
publication is to gauge the scientific reliability of the proposed
testimony. Thus, in explaining this factor, the Supreme Court wrote that
"submission to the scrutiny of the scientific community is a component of
`good science.'" Daubert, 509 U.S. at 593. This sentiment was echoed in a
law review article that attempted to explain the scientific method to
lawyers and judges: "The peer-review system represents both an effort to
police scientific claims and to assure their widest possible
dissemination." Bert Black et al., Science and the Law in the Wake of
Daubert: A New Search for Scientific Knowledge, 72 Tex. L. Rev. 715, 777
(1994). Thus, formal peer review is an "integral part of the scientific
publication process." Id. At the Mitchell hearing, Dr. Stoney defined a
Test. Stoney, Tr. July 12, 1999, at 41.
The Havvard court suggested that the "verification" phase of the
ACE-V process constitutes peer review:
117 F. Supp.2d at 854. In his Mitchell testimony, Sergeant Ashbaugh
voiced the same view. ACE-V "verification," he said, "is a form of peer
review, and it is part of the scientific process." Test. Ashbaugh, Tr.
July 7, 1999, at 116. The difficulty is that if the opinion announced by
a fingerprint examiner — "ident, non-ident," as Mr. Meagher
expressed it — is, as both Mr. Meagher and Sergeant Ashbaugh
acknowledged, "subjective," another opinion rendered by another
examiner, whether in corroboration or in refutation, does little to put a
"scientific" gloss on the first opinion, much less constitute "peer
review" as described by Dr. Stoney.
C. Rate of Error and Controlling Standards
The third Daubert factor is that trial judges "consider the known
or potential rate of error . . . and the existence and maintenance
of standards controlling the technique's operation." Daubert, 509
U.S. at 594.
1. Rate of Error
The government divides the "rate of error" question into two parts
— "methodology error" and "practitioner error." The government's
argument with respect to these two different rates of error is as
Gov't Mot. & Resp. at 113.
a. "Methodology Error"
Dr. Bruce Budowle, whose testimony the government invokes ("Dr.
Budowle's testimony established that methodology error rate in the
science of fingerprints is not a relevant inquiry") is a geneticist in
the FBI's Laboratory Division. Dr. Budowle's testimony with respect to
methodology error was as follows:
Test. Budowle, Tr. July 9, 1999, at 122-23, quoted in Gov't Mot. &
Resp. at 42-43.
The full import of the quoted Budowle testimony is not easy to grasp.
Its basic thrust, however, would seem to be contained in the concluding
sentences: "Now, error rate deals with people, you should have a method
that is defined and stays within its limits, so it doesn't have error at
all. So the method is one thing, people making mistakes is another
Mr. Meagher's testimony with respect to error rate tracked Dr.
Budowle's testimony and is easier to understand. The testimony is
Q: Now — Your Honor, if I could just have a
Q: And that may be so.
A: As applied to the scientific methodology, it's zero.
Test. Meagher, Tr. July 8, 1999, at 154-56.
This court accepts Dr. Budowle's testimony "that error rate is a
difficult thing to calculate" and his further testimony that "error rate
deals with people, you should have a method that is defined and stays
within its limits, so it doesn't have error at all." Test. Budowle, Tr.
July 9, 1999, at 122-23. Further, this court accepts, arguendo, Mr.
Meagher's response to the question whether "you have an opinion as to
what the error rate is for the work that you do, latent print
examinations": "As applied to the scientific methodology, it's zero."
Test. Meagher, Tr. July 8, 1999, at 156. Assuming, for the purposes of
the motions now at issue before this court, that fingerprint "methodology
error" is "zero," it is this court's view that the error rate of
principal legal consequence is that which relates to "practitioner error."
As Dr. Stoney explained at the Mitchell hearing:
Test. Stoney, Tr. July 12, 1999, at 104. It is the practitioner error
rate that affects, for better or worse, the reliability of the
fingerprint identification testimony on which the government seeks to
have the jury base some aspects of its verdicts.
Accordingly, the next Daubert ingredient to be considered is
b. "Practitioner Error"
After having opined, in his Mitchell testimony, that the error for
"scientific methodology" is "zero," Mr. Meagher was questioned by
government counsel about "practitioner error":
Q: How would one correct the practitioner error that
you talked about? Sir, you do not deny that there's
practitioner error, correct?
A: Yes, there is.
Q: Practitioners make mistakes?
A: Sure, we're human.
Q: And how would one, like myself, if I was charged
with a crime and part of that evidence had to do
with fingerprint analysis and fingerprint opinion,
how would I be able to see if there was
A: Well, the images exist. You haven't done anything.
They can simply be — the corrected action can
simply be given to another qualified examiner for
Q: So what you used to — as an examiner used to
come to an opinion, any other practitioner could
pick up, do ACE-V and come to whatever opinion they
are going to come to?
A: That is correct.
Test. Meagher, July 8, 1999, at 156-57.
As previously noted supra, Part I.B, Mr. Meagher had conducted a survey
in which he sent Byron Mitchell's ten-print card and alleged latent
fingerprints to state agencies. The ten-print card was to be compared
with the state fingerprint records: the result — that only
Pennsylvania, the state in which Mitchell had been incarcerated, reported
a "hit" — was significant confirmation of the uniqueness of
fingerprints. The other aspect of the Meagher survey — a request
that state agencies determine whether the latent prints matched the known
Mitchell prints — offered scant support for the accuracy of
fingerprint identification. Nine of the thirty-four responding agencies
did not make an identification in the first instance.*fn23 In his
testimony, Mr. Meagher offered a variety of explanations: the examiner
did not know that the survey was related to a Daubert hearing, id. at
136; the photos of the ten-print card or latent prints were
insufficiently clear, id. at 136, 141-42, 148-49; three of the examiners
"just screwed up,"
id. at 138, 139, 150; inexperience, id. at 143-45;
insufficient time, id. at 147; the examiner "attitude toward the survey
was not as serious as it should have been," id. at 148; and "[i]t was
late in the day and [the examiner] was probably tired," id. at 150. While
the survey results fall far short of establishing a "scientific" rate of
error, they are (modestly) suggestive of a discernible level of
2. Controlling Standards
The parties raise three types of "standards controlling the technique's
operation," Daubert, 509 U.S. at 594, which play a role in fingerprint
a. Galton Point Minima
Various witnesses at the Mitchell hearing testified that the ACE-V
process is the method in general use among fingerprint examiners in the
United States. However, the application of this method, in particular
whether a minimum number of Galton points must be identified before a
match can be declared, varies from jurisdiction to jurisdiction. Sergeant
Ashbaugh testified that the United Kingdom employs a sixteen-point
minimum, Australia mandates that twelve points be found in common, and
Canada uses no minimum point standard. Test. Ashbaugh, Tr. July 7, 1999,
at 144-45. In the United States, state jurisdictions set their own
minimum point standards, while the FBI has no minimum number that must be
identified to declare an "absolutely him" match, Test. Meagher, Tr. July
8, 1999, at 105, but does rely on a twelve-point "quality assurance"
standard, id. at 104. As described by the Havvard court, "there is no
single quantifiable standard for rendering an identification opinion
because of differences in both the quantity of characteristics shown in
the latent print and the quality of the image." Havvard, 117 F. Supp.2d
at 853. While there may be good reason for not relying on a minimum point
standard — or for requiring a minimum number, as some state and
foreign jurisdictions do — it is evident that there is no one
standard "controlling the technique's operation," Daubert, 509 U.S. at
b. Identifying Fingerprints
Government and defense witnesses agreed that the actual identification
of a latent fingerprint — that is, the decision that the ridges of
the two prints that are being compared are sufficiently "identical" to be
considered an "absolutely him" match — is a subjective
determination. Sergeant Ashbaugh testified for the government:
The opinion of individualization or identification
is subjective. It is an opinion formed by the friction
ridge identification specialist based on the friction
ridge formations found in agreement during
comparison. The validity of the opinion is coupled
with an ability to defend that position and both are
found in one's personal knowledge, ability and
Test. Ashbaugh, Tr. July 7, 1999, at 142. Likewise, Mr. Meagher testified
for the government that the evaluation phase is characterized by "the
subjective opinion of the examiner." Test. Meagher, Tr. July 8, 1999, at
155. Dr. Stoney, testifying for the defense, agreed:
The determination that a fingerprint examiner makes
or that an examiner makes when comparing a latent
fingerprint with a known fingerprint, specifically the
determination that there is sufficient basis for an
absolute identification is not a scientific
determination. It is a subjective determination
standard. It is a subjective determination without
objective standards to it.
Test. Stoney, Tr. July 12, 1999, at 87. With such a high degree of
subjectivity, it is difficult to see how fingerprint identification
— the matching of a latent print to a known fingerprint — is
controlled by any clearly describable set of standards to which most
c. Examiner Qualifications
The Scientific Working Group on Friction Ridge Analysis, Study, and
Technology (SWGFAST) adopted "quality assurance guidelines for latent
print examination" in 1997. Test. German, Tr. July 8, 1999, at 35.*fn25
Nevertheless, it appears that these guidelines remain just that, optional
recommendations. There are no mandatory qualification standards for
individuals to become fingerprint examiners,*fn26 nor is there a uniform
certification process. Mr. Meagher, for example, testified that while
some FBI fingerprint examiners are certified by the International
Association for Identification (IAI),*fn27 he is not certified by the
IAI, but by the FBI. Test. Meagher, Tr. July 8, 1999, at 66.
D. General Acceptance
In Daubert, the Supreme Court noted that "general acceptance" —
the major ingredient of the Frye legacy — can still lend support to
a trial judge's finding that a technique is scientifically reliable.
Daubert, 509 U.S. at 594.*fn28 The government points out that
fingerprint identifications have been used for over 100 years. Gov't
Mot. & Resp. at 3. See also Ramsey, Cr. No. 01-5-4, at 9 (acknowledging
that fingerprint identifications are "generally accepted in the relevant
scientific community" because they are "accepted by the vast, vast
majority of persons who are engaged in fingerprint analysis"). In
addition, Mr. Meagher testified that he sent a survey to state law
enforcement agencies, with a striking result: "Unanimously, all states
responded, the fact that they do use fingerprints as a means to
individualize and they all believe in the two basic principles to our
discipline, that is, fingerprints are unique and permanent." Test.
Meagher, Tr. July 8, 1999, at 112. It is apparent that law enforcement
officials uniformly place strong reliance on the fingerprint examiner
community's acceptance, and utilization, of ACE-V and its kindred
General acceptance by the fingerprint examiner community does not,
however, meet the standard set by Rule 702. First, there is the
difficulty that fingerprint examiners, while respected professionals, do
not constitute a "scientific community" in the Daubert sense. See supra,
text following note 20; see also note 28. Second, the Court cautioned in
Kumho Tire that general acceptance does not "help show that an expert's
testimony is reliable where the discipline itself lacks reliability." 526
U.S. at 151. The failure of fingerprint identifications fully to satisfy
the first three Daubert factors militates against heavy reliance on the
general acceptance factor.*fn29 Thus, while fingerprint examinations
conducted under the general ACE-V rubric are generally accepted as
reliable by fingerprint examiners, this by itself cannot sustain the
government's burden in making the case for the admissibility of
fingerprint testimony under Federal Rule of Evidence 702.
VI. Admission of Fingerprint Testimony
Pursuant to the foregoing discussion, it is the court's view that
the ACE-V fingerprint identification regime is hard to square with
The one Daubert factor that ACE-V satisfies in significant fashion is
the fourth factor: ACE-V has attained general acceptance within the
American fingerprint examiner community.*fn30 But the caveat
added that, in the court's view, the domain of knowledge occupied by
fingerprint examiners should be described, in Rule 702 terms, by the word
"technical," rather than by the word "scientific," the word the
Given that Kumho Tire establishes that the Daubert analysis is
applicable to "technical" as well as "scientific" knowledge, it may be
thought that this court's characterization of the knowledge base of
fingerprint examiners as "technical" rather than "scientific" is a
semantic distinction which is of no practical consequence. However, as
discussed above, the court finds that ACE-V does not adequately satisfy
the "scientific" criterion of testing (the first Daubert factor) or the
"scientific" criterion of peer review (the second Daubert factor).
Further, the court finds that the information of record is unpersuasive,
one way or another, as to ACE-V's "scientific" rate of error (the first
aspect of Daubert's third factor), and that, at the critical evaluation
stage, ACE-V does not operate under uniformly accepted "scientific"
standards (the second aspect of Daubert's third factor).
Since the court finds that ACE-V does not meet Daubert's testing, peer
review, and standards criteria, and that information as to ACE-V's rate
of error is in limbo, the expected conclusion would be that the
government should be precluded from presenting any fingerprint
testimony. But that conclusion — apparently putting at naught a
century of judicial acquiescence in fingerprint identification processes
— would be unwarrantably heavy-handed. The Daubert difficulty with
the ACE-V process is by no means total. The difficulty comes into play at
the stage at which, as experienced fingerprint specialists Ashbaugh and
Meagher themselves acknowledge, the ACE-V process becomes "subjective"
— namely, the evaluation stage. By contrast, the antecedent
analysis and comparison stages are, according to the testimony,
"objective": analysis of the rolled and latent prints and comparison of
what the examiner has observed in the two prints. Up to the evaluation
stage, the ACE-V fingerprint examiner's testimony is descriptive, not
judgmental. Accordingly, this court will permit the government to present
testimony by fingerprint examiners who, suitably qualified as "expert"
examiners by virtue of training and experience, may (1) describe how the
rolled and latent fingerprints at issue in this case were obtained, (2)
identify and place before the jury the fingerprints and such
magnifications thereof as may be required to show minute details, and (3)
point out observed similarities (and differences) between any latent print
and any rolled print the government contends are attributable to the same
person. What such expert witnesses will not be permitted to do is to
present "evaluation" testimony as to their "opinion" (Rule 702) that a
particular latent print is in fact the print of a particular person. The
defendants will be permitted to present their own fingerprint experts to
counter the government's fingerprint testimony, but defense experts will
also be precluded from presenting "evaluation" testimony. Government
counsel and defense counsel will, in closing arguments, be free to argue
to the jury that, on the basis of the jury's observation of a particular
latent print and a particular rolled print, the jury may find the
existence, or the non-existence, of a match between the prints.
In arriving at this disposition of the competing government and defense
motions and supporting memoranda, this court has derived substantial
assistance from the thoughtful approach taken by Judge Gertner, of the
District of Massachusetts, in dealing with the comparable
handwriting evidence. In United States v. Hines, 55 F. Supp.2d 62
(D.Mass. 1999), Judge Gertner wrote as follows:
The Harrison [Diana Harrison, an FBI document
examiner] testimony may be divided into two parts:
Part 1 is Harrison's testimony with respect to
similarities between the known handwriting of Hines,
and the robbery note. Part 2 is Harrison's testimony
with respect to the author of the note, that the
author of the robbery note was indeed Hines.
55 F. Supp.2d at 67.
When a lay witness, the girlfriend of the defendant for example, says
"this is my boyfriend's writing," her conclusion is based on having been
exposed to her paramour's handwriting countless times. Without a lay
witness with that kind of expertise, the government is obliged to offer
the testimony of "experts" who have looked at, and studied handwriting
for years. These are, essentially, "observational" experts, taxonomists
— arguably qualified because they have seen so many examples over
so long. It is not traditional, experimental science, to be sure, but
Kumho's gloss on Daubert suggests this is not necessary. I conclude that
Harrison can testify to the ways in which she has found Hines' known
handwriting similar to or dissimilar from the handwriting of the robbery
note; part 1 of her testimony.
Part 2 of the Harrison testimony is, however,
problematic. There is no data that suggests that
handwriting analysts can say, like DNA experts, that
this person is "the" author of the document. There are
no meaningful, and accepted validity studies in the
field. No one has shown me Harrison's error rate, the
times she has been right, and the times she has been
wrong. There is no academic field known as handwriting
analysis. This is a "field" that has little efficacy
outside of a courtroom. There are no peer reviews of
it. Nor can one compare the opinion reached by an
examiner with a standard protocol subject to validity
testing, since there are no recognized standards.
There is no agreement as to how many similarities it
takes to declare a match, or how many differences it
takes to rule it out.
Id. at 69 (footnotes omitted).
I find Harrison's testimony meets Fed.R.Evid. 702's
requirements to the extent that she restricts her
testimony to similarities or dissimilarities between
the known exemplars and the robbery note. However, she
may not render an ultimate conclusion on who penned
the unknown writing.
Id. at 70-71.
A. This court will take judicial notice of the uniqueness and
permanence of fingerprints.