Fingerprint Reports testimonial? NY's Rawlins

[L.J.Steele]

You can find a link to the opinion here:

http://www.law.cornell.edu/nyctap/I08_0023.htm

[Gerald Clough]

Okay. I see their point, but, as they say, there's no rule being made here. Neither fingerprints nor DNA are inherently absolutely accusatory. It's all in the circumstances of the case. The court was a bit wishy-washy about their reasoning, mixing in comment on the relative scientific merits of the two methods. It's not all that uncommon to find rather shallow analysis when the supposed error is recognized as harmless. It's not too difficult to imagine fingerprint evidence that could exculpate and DNA evidence that could be purely accusatory, but it's asking a lot of trial courts to apply this opinion to make a clear distinction among cases.

Judge Read didn't buy the distinction and criticizes the logic. It's unfortunate that, again as is often the case with a finding of harmless error, that the majority didn't explain much about how the peculiar circumstances of the multiple burglaries played into their opinion. All in all, a pretty poorly crafted piece of work that can be read so many ways that it's not of much use to anyone and did little more than get the case off their docket.

Crawford not withstanding, I personally don't view either report as anything but testimonial. A report that essentially says I was identified as a burglar when I'm on trial for burglary is testimony to a relevant fact. And the distinction over relative powers to exclude to be pretty silly. I suspect they realized that giving DNA processing a pass amounting to judicial notice was too much for them. But that's kind of what they implied. Muddled enough that they're going to hearing the questions again in future cases. I expect the two cases will now take their separate paths to further appeal.