For the eastern district of pennsylvania united states of america : vs : criminal number

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For all of the foregoing reasons, the government’s fingerprint identification evidence should be precluded. In the alternative, the defense should be permitted to present expert witness evidence regarding the limitations of the government’s evidence.

Respectfully submitted,


Assistant Federal Defender


Supervisory Assistant Federal Defender

1 Some latent print examiners look for additional identifying features, beyond the basic ridge characteristics set out above, such as small edges on the ridges and the relative location of sweat pores. However, because “prints of friction skin are rarely well recorded . . . comparison of pore or edges is only rarely practical.” Cowger, supra, at 143. As discussed below, the identification at issue in this case concerns only basic ridge characteristics.

2 While Johnson neglected to explain points 7-9 to the jury, these points are also basic ridge endings and bifurcations.

3 The government makes substantial reference in its memorandum to the Supreme Court’s recent decision in Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999). Kumho, however, is essentially irrelevant to this case. The issue presented in Kumho was whether the factors provided by the Daubert Court may be applied in evaluating proffered expert testimony based not only upon “scientific” knowledge, but on “technical” and “other specialized” knowledge as well. See Fed. R. Evid. 702. The Court held that the Daubert factors may properly be considered as applying to all expert testimony. Kumho, 119 S. Ct. at 1171. The reason why Kumho is largely irrelevant to this case is that the government is not contending that its fingerprint identification evidence is based on anything other than “scientific knowledge.” Thus, there has never been any disagreement between the parties that the Daubert factors are properly applicable here.

4The only factor that the defense will not discuss at this juncture is the qualifications of the expert witness testifying based on the methodology. The reason for this is that the government has not yet identified what opinions any of its experts will actually be offering. Counsel requests the opportunity to supplement this brief regarding this issue after the Daubert hearing.

5 The inadequacies of the models referred to by the government are readily evident. For example Mr. Wentworth states:

There is, however, in all of these problems involving chance, an important factor which in our present lack of precise knowledge we have to assume; and that is the exact, or even approximate, percentage of occurrences of the different details. . . . . We find in the fingerprint in question a fork, opening downward. . . . . We have no definite data for knowing the percentage of occurrence of this detail . . . but the variability of the ridges and their detail is so great that we may be warranted in asserting that it is small.

Wentworth, supra, (Gov’t Ex. 13 at 318).

6Mr. Ashbaugh, like the government, points to the embryology studies as providing a scientific basis for fingerprint identifications. Ashbaugh, Basic and Advanced Ridgeology, supra (Gov’t Ex. 10 at 27-42). Like the government, though, Mr. Ashbaugh fails to explain how these studies relate to the fundamental premises that underlie latent fingerprint identifications.

7As the British physicist William Thomson, Lord Kelvin, observed in 1883:

When you can measure what you are speaking about, and express it in numbers, you know something about it; but when you cannot measure it, when you cannot express it in numbers, your knowledge is of a meager and unsatisfactory kind: it may be the beginning of knowledge, but you have scarcely, in your thoughts, advanced to the stage of science.

(quoted in United States v. Starzecpyzel, 880 F. Supp. 1027 (S.D.N.Y. 1995)).

8 Government Exhibit 6-4 only tabulates responses from 34 different state agencies. However, the government has provided to the defense a 35th response from the state of Maine. Thus, while Maine is listed in exhibit 6-4 as having not provided a response, in actuality, the Maine fingerprint expert did not find a sufficient basis to make an identification with respect to either latent print. The response from Maine is provided as Defense Exhibit 19.

9 For other documented cases of false identifications, see James E. Starrs, More Saltimbancos on the Loose? -- Fingerprint Experts Caught in a Whorl of Error, 12 Sci. Sleuthing Newsl. 1 (Winter 1998) (detailing several erroneous identifications discovered in North Carolina and Arizona); see also Dale Clegg, A Standard Comparison, 24 Fingerprint Whorld 99, 101 (July 1998) (Ex. 28) (“I am personally aware of wrong identifications having occurred under both ‘non numeric’ and ‘16 point’ approaches to fingerprint identification.”).

10On the 1997 exam, 16 false identifications were made by 13 participants. Collaborative Testing Services, Inc., Report No. 9708, Forensic Testing Program: Latent Prints Examination 2 (1997) (Ex. 32). Six misidentifications were made on the 1996 exam. Collaborative Testing Services, Inc., Report No. 9608, Forensic Testing Program: Latent Prints Examination 2 (1996) (Ex. 33).

11 Prior to the IAI’s 1973 proclamation, the informal standard most commonly employed in the United States was 12. See FBI, Fingerprint Identification, supra, at 6 (Ex. 1 at 6).

12Of course, the identification in the instant case was made by the FBI examiner on just such a simplistic counting of points.

13 In United States v. Velasquez, 64 F.3d 844, 850-51 (3d Cir. 1995), the Third Circuit stated in dictum that the government’s handwriting expert satisfied the requirements of Daubert. The issue on appeal in Velasquez was not the admissibility of the government’s evidence, but whether the district court should have allowed the defense to present an expert with respect to the limitations of handwriting analysis. As discussed further below, the Third Circuit held that it was reversible error not to allow testimony by the defense expert. Id. at 852.

14 Despite reaching this conclusion, the district court in Starzecpyzel ultimately allowed the handwriting evidence to be admitted under Federal Rule of Evidence 702 as “specialized knowledge” rather than as “scientific knowledge.” (The court provided the jury with a lengthy instruction explicitly telling them that the evidence was not scientific in nature). Id. at 1050-51. In so holding, the court reasoned that the Daubert factors are inapplicable to experts who are not testifying on the basis of scientific knowledge. Id. at 1029. This aspect of the court’s decision, however, was ultimately shown to be erroneous by the Supreme Court’s subsequent decision in Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999).

15 Unlike latent print examiners, hair analysts candidly concede that they cannot make absolute identifications. Williamson, 904 F. Supp. at 1554, 1555.

16 The government concedes that in all of the cases where fingerprint evidence has been permitted, no court has ever conducted the type of analysis that is required by Daubert.

(Gov’t Mem. at 13 n.9.) Indeed, as commentators have recognized, the early American cases establishing the admissibility of fingerprint identifications involved virtually no scrutiny of the evidence whatsoever. See David L. Faigman et al., Modern Scientific Evidence: The Law and Science of Expert Testimony § 21-1.0, at 52 (Ex. 15) (“These cases, germinal not only for fingerprint identification but for the many other forensic individualization techniques invested virtually no effort assessing the merits of the proffered scientific evidence, but merely cited treatises on criminal investigation, or general approval of science, or, . . . other cases admitting [such evidence].”); Saks, supra, at 1103 (Ex. 13) (“What is disappointing about the fingerprint admissibility cases is that these courts made virtually no serious substantive inquiry into the body of knowledge on which they had the responsibility to pass judgment. Later cases had the illusory luxury of precedent, reasoning in effect: ‘Courts in other states are letting in fingerprint evidence, so we can too.’”).

17 Mr. Carter further testified in this regard that he had attended the FBI Academy for training and that the lowest number that anyone from the FBI had “gone to court on has been seven.” (Ex. 48 at 561).

18 There simply is no reason for the government to criticize Mr. Starrs personally for being an “immodest man . . .” (Gov’t Mem. at 30 n.21), or for the government to demean Professor Starrs’s achievement of being cited by the Supreme Court in Daubert by suggesting that this was due solely to “his ability to turn a colorful phrase.” (Id. at 32).

19 James E. Starrs, Judicial Control Over Scientific Supermen: Fingerprint Experts and Others Who Exceed the Bounds, to be published in 35-3 Crim. L. Bull. 233 (1999) (Ex. 52); James E. Starrs, Forensic Science on the Ropes, 20 Sci. Sleuthing Rev. 1 (Winter 1996) (Ex. 53); James E. Starrs, More Saltimbancos on the Loose?, 12 Sci. Sleuthing Newsl. 1 (Spring 1988); James E. Starrs, A Miscue in Fingerprinting Identification: Causes and Concerns, 12 J. of Police Sci. & Admin. 287 (Sept. 1984) (Ex. 26); James E. Starrs, To Err is Human, Infallibility is Divine, 7 Sci. Sleuthing Newsl. 1 (January 1983).

20 The government also mistakenly asserts that Professor Starrs was rejected as a firearms and toolmark examinations expert in United States v. Moore, Criminal No. F.-10928-94. (Gov’t Mem. at 33 n.27). Contrary to the government’s baseless assertion, Professor Starrs was not rejected as an expert in the Moore case. As set forth in the Declaration that Professor Starrs provided in Moore, Professor Starrs was prepared to provide his opinion that a particular comparison technique had not reached a level of acceptance in the scientific community sufficient for admission under the old Frye standard. (Gov’t Ex. 9-2 at 8 ¶18). As the declaration makes clear, Professor Starrs was plainly qualified to offer such an opinion from the research and work that he had performed in the area. The issue, however, did not end up being litigated after the defense counsel that retained Professor Starrs withdrew from the case.

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