USDC Judge Admits FP Evidence Rejected by MD State Court

[Gerald Clough]

This was brought to my attention last night. It is the same fact case as was at issue when the Maryland court ruled the fingerprint testimony inadmissible. This is the outcome of the same issue raised in the federal criminal case initiated when the state case was rendered impotent.

That is precisely the expected outcome, and the court's commentary demonstrates courts clearly see through attempts to turn an admissibility question into a test of scientific provability. And rejecting the Haber position as coming from general human factors research and not research specific to fingerprint identification exactly mirrors all courts' approaches in such things as eyewitness identification prior to the existence of any specific research. It is worth noting that some circuits now recognize the specific eyewitness research conducted at such places as the eyewitness lab at UT-El Paso and are starting to require trial courts to admit experts grounded in that kind of specific research. If they're going to attack the admissibility of fingerprint conclusions, they're going to have to do it by work specific to fingerprint examination that shows the methods or conclusions unreliable. And even if they do, the courts historically don't just toss the expert testimony, any more than they tossed eyewitnesses. They respond by letting the reliability research go to the jury, holding consistent with Daubert that "A vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof" is the appropriate approach. I think what's notable here, too, is that the attempt to invoke the NAS report and the OIG report backfired when the court noted that the NAS report never challenged the reliability of fingerprint examination and that the OIG report found nothing to criticize about methods, only protocol and lack of expert defense advocacy. And the court was nicely in tune with the fingerprint community in rejecting the implication that Haber's inability to calculate a precise error rate should keep the evidence out. Daubert was intentionally a guide to courts as they craft their approaches to evidence, and this court reasonably concluded that (1) there were errors and so there must be an error rate and (2) that by Haber's own work, that rate was low and likely within a narrow range of possible values, so in a real sense, the rate was sufficiently well understood, even if one felt an error rate was a requirement, something Daubert never said was required.

I have trimmed the opinion of the offense facts and case law review and such things as footnotes to get to the judge's reasoning. The bolding is mine. The full text opinion can be found at: http://www.mdd.uscourts.gov/Opinions/Op ... -FINAL.pdf

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA :
v.
BRIAN KEITH ROSE :
CRIMINAL NO. CCB-08-0149

[Facts and Case Law Review Omitted - G.C.]

The record before me in this case, though without live testimony, contains an abundance of information to guide the gatekeeping decision under Daubert, Crisp, and Fed.R.Ev. 702. In addition to the briefing on relevant case law, the parties proffer the National Academy of Sciences (“NAS”) Report, the Office of the Inspector General (“OIG”) Report related to the Brandon Mayfield case, affidavits from defense experts Drs. Lyn and Ralph Haber, and, as noted, the amicus brief prepared for the Baltimore County case and the IAI and SWGFAST memoranda. Having carefully considered these documents and counsels' argument, I am persuaded that the government's proffered expert testimony on fingerprint identification is properly admissible in this case.

In February 2009, the National Research Council of the NAS issued a report titled Strengthening Forensic Science in the United States: A Path Forward. The Report identified a need for additional published peer-reviewed studies and the setting of national standards in various forensic evidence disciplines, including fingerprint identification. See NAS Report 19-24. While the Report quoted a paper by Haber and Haber, the defendant's proposed experts in this case, in which the Habers found no available scientific evidence of the validity of the ACE-V method, the Report itself did not conclude that fingerprint evidence was unreliable such as to render it inadmissible under Fed. R. Ev. 702. Indeed Judge Harry Edwards, who co-chaired the project, made it clear that nothing in the Report was intended to answer the question whether forensic evidence in a particular case is admissible under applicable law. Understandably, the report provoked debate and response from the relevant scientific community, including both SWGFAST and IAI. While these groups support many of the NAS recommendations, they strongly resist the conclusion proffered by the defense that fingerprint identification has been shown unreliable.

The defense also relies on the March 2006 OIG Report titled AA Review of the FBI's Handling of the Brandon Mayfield Case. The OIG Report confirms that individual examiners can and do make mistakes. Any claim of a zero error rate for fingerprint identification that does not acknowledge the possibility of examiner error would be misguided. It is important to recognize, however, that the OIG Report does not discredit the ACE-V methodology applied in Mr. Rose's case.7 Indeed, examiners in Spain made the correct identification of the print by using the ACE-V methodology. The OIG report thus teaches the importance of independent verification of an examiner's findings, and the corresponding importance of a defendant's opportunity to have an independent expert examine the latent prints at issue in a particular case to determine whether there is a basis to claim that a misidentification has been made.

Finally, the Habers' criticism of fingerprint methodology from their perspective as human factors consultants does not outweigh the contrary conclusions from experts within the field as evidenced by caselaw and the amicus brief in this case. Significantly, on the critical issue of erroneous positive identifications (as opposed to erroneous exclusions or inconclusive findings, which do not prejudice the defendant), the Habers surveyed the literature and pointed to erroneous identifications ranging from zero to 0.4% to 1% to a high of only 3% as to one set of more difficult latents. While it may not be possible to calculate an overall error rate, as the Habers explain, there is nothing to contradict the conclusion reached by many courts and other experts that the incidence of error in the sense of erroneous misidentification, as occurred in the Mayfield case, is extremely rare.
Accordingly, for the reasons stated above, I have concluded that fingerprint identification evidence based on the ACE-V methodology is generally accepted in the relevant scientific community, has a very low incidence of erroneous misidentifications, and is sufficiently reliable to be admissible under Fed. R. Ev. 702 generally and specifically in this case.
December 8, 2009
Date Catherine C. Blake
United States District Judge

[areitnau]

Hello all,

In the wake of the decision rendered in this case, and the US. v Keita decision (among the other recent landmark decisions/reports), does anyone's agency have immediate plans for training or other remedial in-house services? I am trying to ascertain to what degree these issues may have on practicing latent print examiners, and how the various agencies are responding to them. If anyone is willing to share how different agencies are handling these issues in ASCLD accredited vs. non-ASCLD accredited units, in regards to these legal issues in respect to the documented training of the unit, I would also appreciate it.

Thanks for your assistance.

Andrew Reitnauer

[RL Tavernaro]

Gerald,
Thanks for your very relevant post, & your commentary. Much appreciated.
Regards, RLT

[Michele]

Andrew,

In US v Keita, there was no decision. Keita plead guilty prior to a decision on the motion. We all know the number of motions increased after Daubert and now they are increasing again after the NAS report. We’ve had a few motions in our area (based on the NAS report) and I’m aware of others around the country (I’ve found 7 total but would love to know about more if people are willing to share information). Most of these are using the same basic ideas for support of their motion (the same ideas stated in Keita). I’ve also heard of 4 more motions that are going to be filed soon, both in my area and in others. Many LPE’s who live in areas that are seeing ‘Motions to Exclude the Fingerprint Evidence’ are keeping in contact with other agencies that are having them so we know how the arguments are changing.

My advice is to be prepared. Once the motions are filed there is little time to prepare. In the first motion I saw, the defense filed it with a lot of time for the prosecution to respond. I think the prosecution had almost 4 months to figure out how to handle it and write a response. In the next case I saw, the defense didn’t give as much time. The motion was filed about 2 weeks prior to the evidentiary hearing to discuss motions and some specific details weren’t disclosed until the evidentiary hearing. An LPE may be able to respond with no notice but it’s not as easy for a prosecutor to address topics that they aren’t prepared for. If an admissibility hearing were to be granted in this case, it was scheduled with 1 week to prepare for it. So my advice is to prepare for the worst and be able to respond quickly. LPE’s should know the basic arguments that will be used in motions and be prepared to explain these to a prosecutor. One huge way to prepare is to be able to give the prosecutor a list of names of who they can contact for help. When this first happened in our area, I gave the prosecutor the names, email addresses, and phone numbers of specific LPE’s that may be able to help. I also gave him the name of the FBI person who is trained to address these issues, and I gave him the name and phone number of other prosecutors that have dealt with this. If someone needs this type of information, feel free to contact me.

Out of the 7 motions that I know about, here are the results:
2 suspects plead guilty prior to the motion being heard by the judge.
1 case decided not to use the fingerprint evidence
3 motions were denied by the judge
and 1 granted the motion for an admissibility hearing.

In 2 of the 3 motions that were denied, it wasn’t a slam dunk. The judge was leaning towards granting the admissibility hearing. I’ve also seen the judge state that even though an admissibility hearing wouldn’t take place, she’d be very lenient in allowing these same issues to be brought up during the trial.

Sorry it took me so long to answer your question. Yes, our agency is a non-accredited lab that is working on training our employees to respond to this. Besides knowing about motions to exclude, I also know of several cases where the NAS is brought up during the trial and examiners have to be able to respond to those types of questions. Our training has included formal classes given by the FBI (we brought in Melissa Gische and Heather Webster, it was great), we’re discussing these issues daily, and we’re continually revamping our SOP’s and our QA measures. Some other things we’re doing to help examiners prepare is to allow a few examiners attend different types of hearings, pre-court interviews, and trial testimony. We never said people couldn’t go to these types of things but now we’re really encouraging people to go, take notes, and share information with the other examiners.

Michele.triplett@kingcounty.gov