Updated the Detail Archives

Cindy Rennie brought us a review of the Haber's book "Challenges to Fingerprints". An author response and possible reviewer reply are being prepared for next week on this topic.

we look at a new defense motion that has been widely circulating over the last week. It's best that friction ridge examiners be aware of the NAS-related content.  It is strongly recommended that you obtain the original, complete version as a .pdf file in order to ensure that the correct context is considered and that formatting differences aren't confusing.  But as always, the introduction, outline, and conclusion are presented here for information purposes. It is also important to know that the defendant plead guilty in this case on November 23, so the motion is irrelevant in this case. (The court's website is located here: https://www.dccourts.gov/pa/.)  However, the motion is very well written, is most likely circulating within the defense community already, and similar challenges could show up in your jurisdiction any time.  The .pdf file that was circulating has been archived on CLPEX.com here: http://www.clpex.com/Information/US-v-Keita-Motion-To-Exclude-FP.pdf

__________________________________________
UNITED STATES
V.
KAMZA KEITA

Trial Date (prior to plea agreement): February 22,2009

MOTION TO EXCLUDE LATENT FINGERPRINT TESTIMONY

Mr. Harnza Keita, through undersigned counsel, respectfully moves this Court to exclude the latent fingerprint testimony pursuant to Dyas v. United States, 376 A.2d 527 (D.C. 1977), and Frye v. United States, 293 F. 1013 @.C. Cir. 1923), the Due Process Clause of the Fifth Amendment, and the Sixth Amendment, as the relevant scientific community does not generally accept that latent fingerprint analysis can reliably and accurately demonstrate a connection between a latent print and a specific individual.

On February 18,2009, the prestigious National Research Council of the National Academy of Sciences published a watershed report, concluding that latent fingerprint analysis has not been "rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source." Nat'l Research Council, Nat'l Acad. of Science, Strengthening Forensic Science in the United States: A Path Forward, hereinafter 2009 NRC Report], 7 (emphasis added). The report is unequivocal: there is no existing research that demonstrates that latent fingerprint identification evidence is valid.

The 2009 NRC Report constitutes the latest and most definitive declaration from the scientific community that has increasingly recognized the absence of evidence validating fingerprint identifications. For although fingerprint evidence has enjoyed uncritical acceptance from courts for over 100 years, "[m]any of the most basic claims of fingerprint identification have never been tested empirically, and . . . in the strong form in which they usually are presented, those claims in fact are unprovable." 4 Mod. Sci. Evid. $ 32:l.

The D.C. Court of Appeals has made clear: "If scientists significant either in number or expertise publically oppose [a technique or method] as unreliable, then that [technique or method] does not pass muster under Frye." United States v. Jenkins, 887 A.2d 1013, 1022 @.C. 2005) (quoting United States v. Porter, 618 A.2d 629,634 @.C. 1992)). The 2009 NRC Report reflects the current view of scientists significant both in number and expertise. The National Research Council (NRC) Committee tasked by Congress with studying forensic science included members of the scientific community, forensic practitioners, and legal experts. The Committee reviewed studies related to forensic disciplines, conducted independent research, heard testimony from experts in the field, and concluded there is no scientific evidence that latent fingerprint analysis can consistently and accurately"' demonstrate a connection between evidence and a specific individual or source." 2009 NRC Report at 7. As the 2009 NRC Report explained, the method of evaluating latent fingerprints, commonly known as ACE-V, "is not specific enough to qualify as a validated method for this type of analysis. [The method] does not guard against bias; is too broad to ensure repeatability and transparency; and does not guarantee that two analysts following it will obtain the same results." Id. at 142.

The NRC cited "a thorough analysis of the ACE-V method" and its LC unambiguous" conclusion: "'We have reviewed available scientific evidence of the validity of the ACE-V method and found none."' Id. at 143 (quotation and citation omitted, emphasis added).

"Whatever the merits of the prior decisions," new developments - such the 2009 IWC Report and recent scientific research - can "chang[e] the scientific landscape considerably and demonstrate[e] indisputably that there is no general acceptance of the current process." Porter, 6 18 A.2d at 63 9 n. 17 (quotation and citation omitted). To be sure, many fingerprint examiners still forcefully vouch for the validity of the ACE-V method, but the conflict between fingerprint practitioners and scientists, including the NRC, "a body composed of. . . a distinguished cross section of the scientific community,"[1] constitutes the very disagreement that makes expert testimony inadmissible under Frye and Dyas. "The very existence of a dispute precludes admission." Jenkins, 887 A.2d at 1022. Accordingly, the latent fingerprint testimony should be excluded.

ARGUMENT

The question before the court is whether the claim by latent print examiners that they can accurately and reliably connect a latent print to a specific person is generally accepted in the relevant scientific community. [2] Part I of this Motion defines who constitutes the relevant scientific community, and Part II describes what that community generally accepts: namely, that there is no evidence that latent print analysis can accurately and reliably connect a latent print to a specific person. First, however, this Motion addresses any possible misapprehension that the longstanding acceptance of fingerprint evidence somehow insulates it from review, or makes a new assessment of its validity unnecessary.

At first blush it may be difficult to conceive of fingerprint identification as lacking scientific support. After all, fingerprints are enshrined not just in the law, but in our cultural imagination as irrefutable proof of identity. Yet fingerprinting was introduced in the early 1900s, when standards for admissible science were considerably lower: there "was no doctrinally mandated gatekeeping approach to expert evidence like those that apply today," whether under Frye or Daubert. Jennifer L. Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67 Brook. L. Rev. 13,32 (Fall 2001). "Courts began admitting fingerprint evidence early last century with relatively, little scrutiny, and later courts, relying on precedent, simply followed along." United States v. Crisp, 324 F.3d 261,277 (4th Cir. 2003) (Michael, J., dissenting). [3] As the 2009 NRC Report observed, on the basis of these early cases, "[o]ver the years, courts have admitted fingerprint evidence, even though the evidence has made its way into the courtroom without empirical validation of the underlying theory and/or its particular application." 2009 NRC Report at 102 (quotation and citation omitted).

The scientific and legal communities were recently jolted out of their unquestioning acceptance of fingerprint evidence by three new developments. First, there were several well publicized misidentifications using latent fingerprint evidence, none more damning of the practice than the FBI's misidentification of Brandon Mayfield as a suspect in the Madrid train bombing. [4] Second, advances in DNA technology raised the standard for all forensic sciences. In particular, "[d]uring the effort to validate DNA evidence for courtroom use . . . it became apparent that assumptions about fingerprint evidence had been reached without the scientific scrutiny being accorded DNA." 2009 NRC Report at 104. [5] Finally, the forensic science community itself began to acknowledge the need for scientific evaluation. In fact, it was the Consortium of Forensic Science Organizations that was largely responsible for convincing Congress that the 2009 NRC Report was needed. [6]

The law is capable of responding to fundamental shifts in what the relevant scientific community generally accepts. Although the particular evidence at issue in Frye was a "novel" scientific technique, 293 F. at 1014, there is no "novelty" requirement for challenging scientific evidence. [7] Courts may take judicial notice of the general acceptance of scientific techniques, and precedent admitting evidence "'may control subsequent trials,"' but only "'until new evidence is presented reflecting a change in the attitude of the scientific community."' Jones v. United States, 548 A.2d 35,46 n.9 @.C. 1988) (quoting People v. Kelly, 549 P.2d 1240, 1245 (Cal. 1976)) (emphasis added). Moreover, "due process considerations require courts to intervene if scientific opinion shifts so dramatically that previously accepted methods are considered unreliable." Armstead v. State, 673 A.2d 221,243 (Md. 1996). A defendant has the right to demand "that the trial be a fair one and that the sum of the evidence introduced against must be sufficiently probative to prove guilt beyond a reasonable doubt." United States v. Horn, 185 F. Supp. 2d 530, 550 (D. Md. 2002). "Expedient as it may be for courts to take judicial notice of scientific or technical matters . . . this cannot be done in the face of legitimate challenges to the reliability and accuracy" of those methods. Id. Indeed, "[s]upposedly valid 'science' has not infrequently been unmasked." State v. 0 'Key, 899 P.2d 663,673 n.9 (Or. 1995) (quotation, citation, and footnotes omitted). In one recent example, the "supposedly valid" forensic science of comparative bullet lead analysis (CBLA) was unmasked as unreliable, due in part to another report of the NRC. A description of the evolution of the judicial treatment of CBLA in response to a shift in scientific opinion - as reflected in a NRC report - and its ultimate exclusion from the courtroom is attached at Appendix A.

Courts in Frye jurisdictions have accordingly not shied away from "considering whether a theory, which had been accepted in the scientific and legal communities, continues to meet the standard." Blackwell v. Wyeth, 97 1 A.2d 235,243 (Md. 2009); see, e.g., Benn v. United States, 978 A.2d 1257, 1276-77, 1278 @.C. 2009) (in determining the admission of expert testimony, "automatic reliance on Dyas or on other past cases" is not appropriate "except in clear-cut cases," instead court "must consider . . . the current state of generally-accepted scientific research") (emphasis added); People v. Venegas, 954 P.2d 525, 528 (Cal. 1998) (admission of evidence becomes precedent "in the absence of evidence that the prevailing scientific opinion has materially changed").8 "Science moves inexorably forward and . . . [the] judicial system, with its search for the closest approximation to the 'truth,' must accommodate this ever-changing scientific landscape." State v. Behn, 868 A.2d 329,343 (N.J. Super. Ct. App. Div. 2005). This Court's assessment of the scientific community's current opinion of latent print identification is in no way limited by the uncritical acceptance of such evidence in the past.

P.7:

I. THE RELEVANT SCIENTIFIC COMMUNITY
A. THE TEST OF GENERAL ACCEPTANCE
...
B. DETERMINING THE RELEVANT SCIENTIFIC COMMUNITY
...
1. The relevant scientific community for latent print identifications includes impartial scientists as well as latent print examiners.
...
2. The report of the National Research Council reflects the conclusions of the relevant scientific community for latent print identification.
...

P.15:

II THE RELEVANT SCIENTIFIC COMMUNITY DOES NOT GENERALLY ACCEPT THAT LATENT FINGERPRINT EXAMINERS CAN ACCURATELY AND RELIABLY CONNECT A LATENT PRINT TO A SPECIFIC INDIVIDUAL TO THE EXCLUSION OF ALL OTHERS
...
A. THE LATENT PRINT IDENTIFICATION PROCESS
...
B. THE SCIENTIFIC COMMUNITY DOES NOT GENERALLY ACCEPT THAT LATENT PRINT ANALYSIS CAN CONSISTENTLY, AND WITH A HIGH DEGREE OF CERTAINTY, DEMONSTRATE A CONNECTION BETWEEN A LATENT PRINT AND A PARTICULAR PERSON.
...
1. The relevant scientific community recognizes that a valid scientific basis for latent fingerprint identification has never been demonstrated.
...
2. The relevant scientific community recognizes that the claim that latent fingerprint identification is infallible is scientifically implausible and demonstrably false.
...
[Mayfield description]...
"Fingerprints from different people can be very similar to one another"...
"Verification does not prevent erroneous identifications"...
"The 'one discrepancy rule' does not prevent erroneous identifications"...
"Even the most qualified latent print examiners make erroneous identifications"...
"Access to a defense expert does not prevent erroneous identifications"...
"Complying with the discipline's best practices guidelines does not prevent erroneous identifications"...
"The absence of objective, validated standards for identifying a 'match' can contribute to erroneous identification but would not have prevented the Mayfield misidentification"...

3. The relevant scientific community recognizes that the claim of a fingerprint 'match' is meaningless in the absence of probability rate data.
...
4. The relevant scientific community recognizes that latent fingerprint examination is a subjective analysis conducted without standards or controls for bias.
...
"No generally accepted or uniform standards for reaching the ultimate conclusion that a suspect's print can be identified as the exclusive source of the latent print"...
"No generally accepted or uniform standards for determining whether a latent print is of value for comparison"...
"No standards for determining what aspects of a print should be examined or how they should be measured"...
"No standards for distinguishing between differences that can be explained and those that prohibit an identification"...
"No standard for conducting a verification"...
"No standards for documentation"...
"No standards for training or certification of latent print examiners"...

p.49:

III. THE LATENT FINGERPRINT TESTIMONY SHOULD BE EXCLUDED AS MORE PREJUDICIAL THAN PROBATIVE

"Even if this Court does not recognize that, at the very least, there is a dispute regarding the reliability of latent print identification in the relevant community sufficient to preclude admission under Frye, the fingerprint testimony should still be excluded as more prejudicial than probative."...

p.51:

IV. CONCLUSION
"The relevant scientific community recognizes that there is no scientific evidence validating fingerprint identifications, the claim of infallibility has been disproven, the meaning of a match is meaningless in the absence of probability data, and the analysis is a subjective and standardless process. In sum, '[t]he relevant question is... whether there is a general consensus [in the relevant scientific community] that fingerprint examiners can make reliable identifications on the basis of... basic ridge characteristics. The answer to that question is plainly no.'" Mears & Day, 19 Ga. St. U.L. Rev. at 774. And even the strongest advocates of latent print analysis must acknowledge the existence of 'active debate in the scientific, fingerprint practitioner and legal communities.' 4 Mod. Sci. Evid. 32(53). The fingerprint testimony should accordingly be excluded. In the alternative, the fingerprint testimony should be excluded as more prejudicial than probative.

WHEREFORE, based on the foregoing reasons, Mr. Keita respectfully requests that this Court grant a hearing on this Motion to exclude the latent fingerprint testimony. Mr. Keita reserves the right to supplement this Motion upon disclosure of additional discoverable material by the government.

Respectfully Submitted,
Jason D. Tulley #482381
Tiffany Sizemore
Counsel for Mr. Keita

Public Defender Service
633 Indiana Ave. N.W.
Washington, DC 20004
202-824-2434

[1] Roberts v. United States, 916 A.2d 922,930 (D.C. 2007) (quotation and citation omitted).

[2] As explained in more detail in Part II(A), infra, a "latent" print is a fingerprint or part of a fingerprint that is associated with a crime (i.e. found at the crime scene), that is compared with the prints of a known individual. "Latent print identification" is the method of identifying people by comparing fingerprints, and is alternately described by practitioners as "friction ridge identification." See David R. Ashbaugh, QUANTITATIVE-QUALITATIVE FRICTION RIDGE ANALYSIS: AN INTRODUCTION TO BASIC AND ADVANCED RIDGEOLOGY (CRC Press, 1999).

[3] See Christophe Champod, et al, FINGERPRINTS AND OTHER RIDGE SKIN IMPRESSIONS [hereinafter Champod], 196 (CRC Press, 2004) ("Court acceptance without much scrutiny in adversarial legal systems has led to an almost blind faith in fingerprint evidence."); 4 Mod. Sci. Evid. 3 32:l ("The seminal cases admitting fingerprint evidence in American courts paid so little attention to the foundation of the asserted science that they offer no help in evaluating the admissibility of fingerprint identification evidence . . . .").

[4] See infra Part II(B)(2).

[5] See also Champod at 32 ("With the extensive use of probability-based DNA evidence and the evolving requirements for the admissibility of scientific evidence in the U.S., older identification fields such as fingerprints are being subjected to more rigorous scrutiny . . . . ").

[6] As the director of the professional association for latent print examiners, the International Association for Identification (M), stated: "The Consortium of Forensic Science Organizations (CFSO) of which IAI is a member was largely responsible for convincing Congress of the need for th[e] committee [that produced the 2009 NRC Report]." Memorandum to IAI members from President Robert J. Garrett (Feb. 19,2009), www.theiai.org/current_affairs/nas_memo_20090219.pdf; see also The Honorable Harry T. Edwards, co-chair, 2009 NRC Report Committee, Solving the Problems that Plague the Forensic Science Community, Keynote Address at Conference: Forensic Science for the 21st Century: The National Academy of Sciences Report and Beyond [hereinafter Edwards Keynote], 1 (April 3, 2009) ("Congress passed the legislation [mandating the Report] in response to a call for help from forensic professionals who understood the problems.") (emphasis in original).

[7] See, e.g., David H. Kaye et al, THE NEW WIGMORE: EXPERT EVIDENCE & 8.3,299 (2004) (The "concept of novelty is not part of Frye" and Frye scrutiny applies "to theories that are boringly familiar but are yet to be adequately validated as much as to theories that are strikingly original."); John William Strong, Language and Logic in Expert Testimony: Limiting Expert Testimony by Restrictions of Function, Reliability, and Form, 71 Or. L. Rev. 349,367 (Summer 1992) ("no apparent reason exists, as has repeatedly been suggested, for limiting the standard to 'novel' scientific evidence"); id. at 367 n.76 (stating that "[the] origin of this qualification, if it is in fact a qualification, is obscure" and suggesting that it originated from an article that did not, in fact, supply any rationale for such a limitation).
__________________________________________

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