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U.S. v. LLERA PLAZA
January 7, 2002
UNITED STATES OF AMERICA
CARLOS IVAN LLERA PLAZA, WILFREDO MARTINEZ ACOSTA, AND VICTOR RODRIGUEZ.
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
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,
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
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
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
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.
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
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
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.
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
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.
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
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
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
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
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
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
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, ...