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March 13, 2002


The opinion of the court was delivered by: Pollak, J.


In the government's list of witnesses expected to be called at the upcoming trial, on drug and murder charges, of defendants Carlos Ivan Llera Plaza, Wilfredo Martinez Acosta and Victor Rodriguez, there are four Federal Bureau of Investigation (FBI) fingerprint examiners and one FBI fingerprint specialist. To bar the testimony of these anticipated witnesses, the defendants filed a Motion to Preclude the United States from Introducing Latent Fingerprint Identification Evidence. The government responded with a Combined Motion in Limine to Admit Latent Print Evidence and Response to [Defendants'] Motion to Preclude the Introduction of Latent Fingerprint Identification Evidence. The principal question posed by the defendants' motion and the government's counter-motion was whether, as the government contended, fingerprint identification evidence is sufficiently reliable to meet the standards for expert testimony set by Rule 702 of the Federal Rules of Evidence as explicated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 597 (1993) and reaffirmed in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). A logically antecedent — but far less difficult — question was whether, as the government also contended, the uniqueness and the permanence of fingerprints are matters that have been so clearly established as to be proper subjects of judicial notice pursuant to Rule 201 of the Federal Rules of Evidence. Resolution of these linked questions required consideration of evidence as to (1) the theoretical basis of fingerprint identification and (2) the procedures by which someone familiar with fingerprints (which, for the purposes of this opinion, include palmprints) arrives at a judgment that a fingerprint impressed on some surface (a so-called "latent" print) by an unknown person and thereafter found by and "lifted" from that surface by law enforcement technicians is — or is not — a print which "matches" a known person's "known exemplar" fingerprint (a so-called "rolled" print), thereby signifying that the person who made the latent print is — or is not — the person who made the rolled print. By stipulation of the parties, the evidence with respect to these questions consisted of a copy of the transcript of a five-day hearing addressed to the same question presided over by my colleague Judge Joyner, in 1999, in United States v. Mitchell, Cr. No. 96-407. While no new evidence was presented before me, the parties in the case at bar supplemented the Mitchell materials with extensive briefs.

On January 7, 2002, I filed an opinion and order addressed to the defendants' motion and the government's counter-motion.

First, I concluded that, as the government had contended, it was beyond reasonable dispute that the fingerprints of each person (a) are unique to that person and (b) are (barring some serious and deeply penetrating wound to the hand that substantially alters or defaces the surface of one or more of the fingers or of the palm) permanent from birth to death. I therefore ruled that, pursuant to Rule 201, I would, for the purposes of the up-coming trial, take judicial notice of the uniqueness and permanence of fingerprints. In agreeing to take judicial notice of the uniqueness and permanence of fingerprints, I was in effect, accepting the theoretical basis of fingerprint identification — namely, that a showing that a latent print replicates (is a "match"of) a rolled print constitutes a showing that the latent and rolled prints are fingerprints of the same person.

Second, I considered whether the ACE-V fingerprint identification system employed by the FBI sufficiently conforms to the Daubert standards of reliability laid down by the Court as guidelines in determining the admissibility of expert testimony under Rule 702. First I described the four fingerprint examination procedures — "analysis," "comparison," "evaluation," and "verification," — for which "ACE-V" is an acronym: "analysis" by an initial fingerprint examiner of the observably distinctive patterns of a latent print; "comparison" by the examiner of the latent print patterns with those of a rolled print; "evaluation" by the examiner of these compared patterns with a view to determining whether the prints are, or are not, impressions made by the same finger or palm; and "verification" by a second examiner who repeats the analysis, comparison and evaluation steps in order to verify, or not, the initial examiner's finding. Next I identified the four Daubert factors of scientific reliability relied on by both the government and the defendants as touchstones of Rule 702 admissibility: (1) whether the technique on which the proffered expert testimony is premised "can be (and has been) tested"; (2) whether the technique has been "subjected to peer review and publication"; (3) "the known or potential rate of error . . . and the existence and maintenance of standards controlling the technique's operation"; and (4) "general acceptance." 509 U.S. at 593-84. Based on the Mitchell record, I came to the following conclusions with respect to ACE-V's conformity to the Daubert factors:

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).

These conclusions did not, however, lead to a determination that fingerprint identification testimony could play no role whatsoever. The substance of my ruling was as follows:

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 specialists Ashbaugh [David Ashbaugh, of the Royal Canadian Mounted Police] and Meagher [Stephen Meagher of the FBI] 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 the defendants' view, reconsideration was not called for: there was no suggestion that the additional evidence the government wished to adduce (the proposed factual presentation relating to the FBI proficiency tests) was new, or had previously been unavailable; and it was not contended that the controlling legal principles, as laid down by the Supreme Court and the Court of Appeals for the Third Circuit, had been reconfigured since this court's January 7 decision. Further, the defendants argued, citing the Third Circuit's decision in United States v. Kithcart, 218 F.3d 213 (2000), that it would be error for this court to conduct an evidentiary hearing in aid of a motion for reconsideration.

Kithcart, so it seemed to me, was without application. In Kithcart the Third Circuit, on an initial appeal, had concluded that the district court should reexamine a suppression motion which the district court had previously denied. On remand, the district judge (a judge to whom the case had been assigned after the original judge had been elevated to the Third Circuit) conducted an evidentiary hearing to hear witnesses the government had not called at the prior suppression hearing and, on the basis of the enlarged record, adhered to the prior ruling denying the motion to suppress. On a renewed appeal, the Third Circuit held that it had been error for the newly assigned district judge, on remand, to hear testimony; the remand order, the Third Circuit explained, had contemplated that the suppression motion would be reconsidered by the district court on the original record unless the government, on remand, offered an adequate explanation why it had not presented the additional witnesses at the prior hearing — a showing the government, on remand, did not make. Kithcart, in sum, involved a construction by the appellate court of its procedural directive to a district court. No such scenario was presented in the case at bar.

Although Kithcart offered no support for the defendants' contention that I should decline to reconsider the January 7 ruling, the defendants were on sound ground in contending that neither of the circumstances conventionally justifying reconsideration — new, or hitherto unavailable, facts or new controlling law — was present here. It seemed to me, nonetheless, that there was a factor peculiar to this case which militated in favor of agreeing to reconsider the January 7 ruling. That factor was that the record underlying the January 7 opinion did not consist of testimony by witnesses I had actually seen and heard; my field of vision was a transcript of testimony presented in another courtroom more than two years ago. Therefore, it seemed prudent to hear such live witnesses as the government wished to present, together with any rebuttal witnesses the defense would elect to present.

Accordingly, I agreed to reconsider the January 7 ruling. The parties required a period of time to prepare for the evidentiary hearing requested by the government. The hearing was held on February 25, 26 and 27.


The Witnesses

At the hearing five witnesses gave testimony. The government presented two witnesses: Stephen Meagher, Unit Chief of Latent Print Unit 3 of the Forensic Analysis Section of the FBI Laboratory; and Kenneth O. Smith, Senior Forensic Latent Print Analyst of the U.S. Postal Inspection Service. The defendants presented three witnesses: Allan Bayle, a London-based consultant on fingerprint identification, with lengthy prior service as a fingerprint examiner at New Scotland Yard; Janine Arvizu, a laboratory quality auditor serving as Senior Technical Consultant at Consolidated Technical Services, Inc., a New Mexico firm; and Dr. Ralph Norman Haber, a psychometrician at Human Factors Consultants, a California firm.

A. The Testimony of the Government Witnesses

Stephen Meagher:

The first portion of Mr. Meagher's testimony was a run-through of the ACE-V process, visually illustrated by overhead projections of fingerprints whose distinctive patterns of "friction ridges" are frequently given further distinctive character by markings commonly termed "loops," "whorls," "arches," and "deltas."

[Historical Note (not drawn from testimony): "Galton points" take their name from Francis Galton, the multi-talented English scientist who was a cousin of Darwin's and a major figure in his own right. Starting in the late 1880s, Galton undertook to appropriate much of, and then to build upon, the pioneering fingerprint identification efforts of (1) another Englishman, William Herschel, serving in the Indian civil service, and (2) Henry Faulds, a Scottish physician serving as a medical missionary in Japan. Galton's efforts were brought into the mainstream of criminal investigation by Edward Henry, the Inspector General of Police in Bengal, who, in 1901, was called back to England as Assistant Commissioner (later, Commissioner) of Scotland Yard and promptly established the Yard's Fingerprint Branch. Galton and Henry have customarily been celebrated as the principal progenitors of fingerprint identification, with Herschel given an approving nod — while the foundational work of Faulds has, until very recently, been largely ignored. See generally COLIN BEAVAN, FINGERPRINTS (2001), "an elegantly written slim volume," Paul Shechtman, New York Law Journal, August 7, 2001, at 2 (book review); see also NICHOLAS WRIGHT GILLHAM, A LIFE OF SIR FRANCIS GALTON 231-249 (2001).*fn1 Fingerprinting was not, however, the most significant of Francis Galton's many lines of inquiry: The versatile, and indefatigably enterprising, Galton, did important work in fields as disparate as, inter alia, geography, biometrics and meteorology; but his most influential scientific contributions proved to be profoundly malign — an early student of genetics, Galton became the high priest of eugenics.]

Although the observation of Galton points that are common to the latent print and the rolled print has traditionally been one of the mainstays of the "comparison" and "evaluation" stages of ACE-V, Mr. Meagher emphasized in his testimony that no minimum number of Galton points is required in order to achieve a reliable identification. In support of this, Mr. Meagher cited a 1973 pronouncement of the International Association for Identification, a similar pronouncement at an international conference held in Nurum, Israel, in 1995, and guidelines promulgated in 1997 by the Scientific Working Group on Friction Ridge Analysis Study and Technology. Mr. Meagher's testimony on this point is of some significance, because in my January 7 opinion, in concluding that the ACE-V process appeared to lack uniformly controlling standards, I noted that, on the basis of what I had gleaned from the Mitchell record, here and abroad there appeared to be a lack of uniformly controlling identification standards. What I said in the January 7 opinion was as follows:

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 594.

Mr. Meagher presented a tabulation of the proficiency test results for the seven years 1995-2001. According to that tabulation (Government Exhibit R-15), the aggregate test population was 447 (not, of course, 447 different people, since each certified FBI fingerprint examiner takes the proficiency test each year).

Sixteen of the 447 test takers were supervisory personnel who, having administered the internal test, took the external test. In the course of the seven years, one error was recorded on an external test: In 1995, the external test called for assessment of seven latent fingerprints and four known exemplar ten-print cards (i.e., cards containing prints of all ten fingers); one person mistakenly identified a latent print as matching one of the known exemplars — a "false positive." All errors on the FBI fingerprint proficiency tests are inquired into; but a false positive — being mistakenly inculpatory — is thought by the FBI to call for particularly demanding scrutiny. The inquiry conducted with respect to the 1995 error on the external test led Mr. Meagher to conclude that the error was not one of faulty evaluation but of faulty recording of the evaluation — i.e., a clerical rather than a technical error.

The internal tests taken over the seven years numbered 431. These tests generated three errors, two in 1995 and one in 2000. Each of the three errors was a missed identification — i.e., a failure by the test taker to find a match between a latent print and a known exemplar which in fact existed; such an error is a "false negative" which, being mistakenly exculpatory, is regarded by the FBI as considerably less serious than a false positive.

In sum, the 447 proficiency tests administered in the seven years from 1995 through 2001 yielded four errors — a proficiency error rate of just under 1%.

Mr. Meagher was asked on direct examination whether, in the course of his career, he had learned, either directly or through conversations with colleagues, of any instances in which FBI fingerprint identification testimony presented in court had turned out to be false. The question was objected to — on the ground that an answer in the negative would not be probative that the identification testimony was in fact accurate — but I overruled the objection. Mr. Meagher did respond in the negative. At a later point in the hearing I recalled Mr. Meagher to the stand so that I could pursue a couple of issues about which he had given testimony. One of the questions I put to Mr. Meagher was whether he knew if, in any of the many criminal trials in which he had given testimony of a match (some sixty or more trials, it would appear), the defendant had been acquitted. Not surprisingly, Mr. Meagher responded that he couldn't really provide any information on that score since, after giving his testimony, he frequently had no occasion to learn of the outcome of the trial. I then asked Mr. Meagher whether he was aware of instances in which "identification testimony turned out to be mistaken" in instances of "criminal prosecutions in the United States not involving FBI fingerprint identification testimony." "[T]he answer to that," responded Mr. Meagher, "is I believe so, yes, and to cite an exact case, I can't do that for you, but when those kinds of things occur, they certainly do make the rounds within the community, and the practitioners are very aware of it, and the answer to that is yes. Yes there have been erroneous identifications testified to in court here in the United States by those other than the FBI. I certainly don't want to imply that there's many, but I am aware of a few." Mr. Meagher then recalled a case "right here in Philadelphia in which ultimately the prints did come to the FBI for confirmation verification or for us to render our own independent decision." On further questioning by counsel it appeared that the instance of mistaken fingerprint identification recalled by Mr. Meagher was the prosecution of Ricardo Jackson in the Court of Common Pleas in Delaware County, not in Philadelphia.

Kenneth O. Smith:

Mr. Smith's testimony addressed the preparation and content of the external fingerprint identification proficiency tests distributed to and graded by CTS for numerous forensic laboratories, both domestic and foreign, including the FBI Laboratory. Mr. Smith has been an adviser to CTS on these matters for several years and thus is very familiar with the CTS tests. CTS does not supervise the manner in which the tests are taken at the various laboratories, so one could not tell from the test results the conditions under which a test would have been taken in any particular laboratory (whether, for example, the test would have been taken collaboratively or individually by those tested). Mr. Smith was of the view that the difficulty of the CTS tests corresponds reasonably closely to the difficulty presented to fingerprint examiners by their day-to-day work.

B. The Testimony of the Defense Witnesses

Allan Bayle:

Mr. Bayle is "a fingerprint examiner and a forensic scene examiner." He served at New Scotland Yard for twenty-five years until June of last year when he moved to the private sector as a consultant. Mr. Bayle is a Fellow of the (UK) Fingerprint Society and, like Mr. Meagher, a member of the International Association for Identification. He has testified in English courts as a fingerprint expert "[h]undreds of times." Mr. Bayle had reviewed copies of the internal FBI proficiency tests before taking the stand. He found the latent prints utilized in those tests to be, on the whole, markedly unrepresentative of the latent prints that would be lifted at a crime scene. In general, Mr. Bayle found the test latent prints to be far clearer than the prints an examiner would routinely deal with. The prints were too clear — they were, according to Mr. Bayle, lacking in the "background noise" and "distortion" one would expect in latent prints lifted at a crime scene.*fn3 Further, Mr. Bayle testified, the test materials were deficient in that there were too few latent prints that were not identifiable; according to Mr. Bayle, at a typical crime scene only about ten per cent of the lifted latent prints will turn out to be matched. In Mr. Bayle's view the paucity of non-identifiable latent prints:

makes the test too easy. It's not testing their ability. It doesn't test their expertise. I mean I've set these tests to trainees and advanced technicians. And if I gave my experts these tests, they'd fall about laughing.

On cross-examination, Mr. Bayle was shown Government Exhibit R-13 — a latent print the government expects to introduce at the upcoming trial. (Mr. Bayle had seen Government Exhibit R-14, a blow-up of R-13, the day before). ". . . [I]sn't it correct," government counsel asked, "that what you're looking at right there is much easier than the latents that are in the test?" "Yes."

On cross-examination Mr. Bayle acknowledged his commitment to ACE-V:

Q . . . [I]n your field and what you teach is the methodology that has been spoken about in this Court and in ...

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