Scientific
Method?
Judge Prevents Fingerprint
Experts From Identifying 'Match'
By Geraldine Sealey
A judge has ruled for the first
time that fingerprint evidence, a virtually unassailable prosecutorial
tool for 90 years, does not meet the standards set for scientific
testimony and that experts in the field cannot testify that a suspect's
prints definitely match those found at a crime scene.
The decision, by a senior federal
judge in Philadelphia, comes after two years of efforts by defense
lawyers to hold fingerprint analysis to standards set by the Supreme
Court in 1993.
The judge, Louis H. Pollak, found
that fingerprint analysis had not been subjected to the rigorous testing
required under those standards.
Judge Pollak ruled that
fingerprint experts could still point out the similarities between
prints from a crime scene and those of a defendant. They may also still
point out that no two people have the same prints. But, the judge wrote,
"what such expert witnesses will not be permitted to do is to
present `evaluation' testimony as to their `opinion' that a particular
latent print is in fact the print of a particular person."
The decision, issued on Monday, is
not binding on any other court and is unlikely to affect past
convictions, legal experts said. But it is expected to prompt challenges
in other jurisdictions, not just to fingerprints but to other techniques
like ballistics and handwriting and hair analysis.
Several legal experts said the
careful reasoning of Judge Pollak's decision would make it hard for
other judges to disregard it.
"I think it's going to be a
blockbuster opinion, because fingerprints are always held up as the most
reliable type of evidence," said Paul C. Giannelli, a forensic
expert at Case Western Reserve University Law School who was the
co-author of the book "Scientific Evidence."
The executive director of the
California District Attorneys Association, Lawrence Brown, said that a
single ruling from a federal judge did not mean the demise of
fingerprinting. But Mr. Brown said that if Judge Pollak's ruling became
the legal standard it would make prosecutors' jobs more difficult.
"To be able to talk only
about how many `points of similarity' there are in a fingerprint — a
jury might be left somewhat confused as to what all that means,"
Mr. Brown said. "Juries rely on experts to assist them in making
important decisions, and if the expert wouldn't be able to give that
final punch line that this is in fact the accused's fingerprints, it
would undermine cases to some extent."
Law enforcement officials have
been concerned that a decision like Judge Pollak's would cast doubt on
other forensic techniques. David L. Grieve, the editor of
fingerprinting's main trade journal, the Journal of Forensic
Identification, warned in 1999 that "if the court determines that
fingerprint analysis is not a science, other types of forensic
examination will surely follow."
Handwriting and hair analysis have
already been weakened by other rulings, and Professor Giannelli said
that ballistics — the practice of identifying guns by the marks they
leave on bullets — was now particularly vulnerable because guns,
unlike fingerprints, change the marks they leave over time and with use.
DNA analysis, usually presented in
terms of statistical probability of a match rather than as certainty,
has been found to meet the Supreme Court's standard for a science.
Judge Pollak, a former dean of the
Yale and University of Pennsylvania law schools, issued his decision as
a pretrial ruling in a murder case in Philadelphia in which prosecutors
used fingerprints to link two defendants, Carlos Ivan Llera Plaza and
Wilfredo Martinez Acosta, to four drug-related murders in 1998. The
men's lawyers had asked that the fingerprint evidence be declared
inadmissible.
A spokesman for the United States
attorney's office in Philadelphia, Richard Manieri, said of the
decision, "We're evaluating it and considering our options."
The decision was first reported on
Wednesday in the Legal Intelligencer, a newspaper in Philadelphia.
The reliability of fingerprint
analysis went unchallenged for decades. But two Supreme Court decisions
on expert testimony made the practice vulnerable. In two product
liability suits the court declared that federal judges must determine
the reliability of expert testimony before admitting it. The court held
that an expert could not testify about the scientific certainty of a
technique unless its accuracy had been tested and its rate of error was
known.
The first legal challenge to
fingerprinting under this standard, filed by a federal public defender,
Robert Epstein, in 1999, was rejected. But many defense lawyers adopted
Mr. Epstein's arguments that standards of what constituted a match and
of training varied widely and that the accuracy of crime-scene print
identification had never been scientifically tested.
Earlier in 1999, the Justice
Department began the process of putting together a study of fingerprint
identification's accuracy.
Both sides in the current case
agreed to let Judge Pollak base his ruling on the court record in Mr.
Epstein's case.
Fingerprint analysts work by
comparing crime-scene prints, which are often smudged, distorted or
fragmentary, to "clean" prints taken from a suspect.
Judge Pollak dismissed as
irrelevant the government's position that while fingerprint experts made
subjective decisions and could occasionally make mistakes, their
methods, correctly applied, had an error rate of zero.
For Mr. Epstein's case, the
Federal Bureau of Investigation sent the defendant's official prints to
53 law enforcement agencies. Eight of the 34 laboratories that responded
were unable to match at least one of the two crime-scene prints with the
defendant's.
"While the survey results
fall far short of establishing a `scientific' rate of error," Judge
Pollak wrote, "they are (modestly) suggestive of a discernible
level of practitioner error."
Mr. Epstein called the ruling,
"the decision we've all been waiting for," adding, "He
didn't go all the way, but he went 98 percent of the way."
Mr. Brown of the district
attorneys association noted that fingerprint evidence has long been so
persuasive that when prosecutors do not have it, defense lawyers
routinely attack the case as weak.
"It's somewhat amusing,"
Mr. Brown said. "Now they want to also cast aspersions when there
is a fingerprint."
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