CLPEX Chat Board

The Court assumes the parties' familiarity with the facts and procedural history of this motion.1 The government contends that preclusion of Dr. Cole's testimony is necessary for three reasons: Dr. Cole (1) is "not a trained fingerprint examiner"; (2) "has not published peer-reviewed scientific articles on the topic of latent fingerprint evidence"; and (3) "has not conducted any validation research in the field." See Mot. at 1-2. As such, the government maintains that his testimony will not assist the trier of fact in understanding the evidence or determining a fact in issue. In opposition, Defendant argues that Dr. Cole's testimony is necessary "contrary evidence" that will assist the trier of fact, and that preclusion will violate Defendant's constitutional rights. See generally, Opp'n.2 For the reasons set forth below, the government's motion is granted.

Defendant contends that recent reports by the President's Council of Advisors on Science and Technology ("PCAST") and the National Academy of Sciences ("NAS") call into question the reliability of fingerprint analysis and warrant the exclusion of such evidence.....

In opposition, the government points out that an addendum to the PCAST Report, which Defendant failed to identify in his opening brief, undermines many of Defendant's fingerprint analysis arguments. See Opp'n at 22-23 (citing Exhibit D to Opp'n, Addendum to PCAST Report ("PCAST Addendum")). The PCAST Addendum notes that, with "latent fingerprint analysis," PCAST found "clear empirical evidence" that "the method[ology] met the threshold requirements of `scientific validity' and `reliability' under the Federal Rules of Evidence." PCAST Addendum at 2. Additionally, the government argues that, although fingerprint analysts at one time testified that their methodology has zero or near zero error rates, that is not what the current view among practitioners is, and not what the government's expert would testify to. Opp'n at 21-22.

The government seeks to preclude Defendant's proposed expert, Dr. Cole, from testifying, and points to this Court's decision in Pitts, 218 WL 1169139, which granted a similar motion. Opp'n at 20. The government argues that, as was the case in Pitts, Dr. Cole's anticipated testimony would serve to rebut testimony from the government's experts that the government does not expect to elicit. Id. The government argues further that Dr. Cole's additional proposed testimony, which would address the reliability of fingerprint examinations and the "best practices" to be followed when conducting such examinations, is not distinguishable from the information contained in the reports Defendant attached to his motion, and with which he can cross examine the government's experts. Id. at 20-21.

Defendant claims that Dr. Cole's testimony is necessary in this case because the reports could not be introduced through the government's experts. Reply at 9-10. However, the government has given every indication that its experts would recognize these reports, such that Defendant can use them on cross-examination. See Opp'n at 18 ("[t]o the extent the defendant wants to cross examine the [fingerprint] examiners on the basis of the empirical studies in which the error rates cited in the defendant's motion were found, the defendant is free to do so. . . ."). The Court finds that Dr. Cole's testimony would not assist the trier of fact. See Pitts, 2018 WL 1169139, at *3. Accordingly, the testimony is precluded.