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Andre Monessens introduces the decision last
week from the Massachusetts Supreme Court in Commonwealth v. Patterson
regarding the use of simultaneous latent print impressions
Commonwealth v. Patterson
Mass State Court Decision
by Andre Moenssens
CLPEX Content Editor
Friction ridge examiners are aware that the highest court of
Massachusetts (the Supreme Judicial Court) has been considering a
broad-based challenge to the admissibility of fingerprint evidence in
general and simultaneous impression evidence in particular. Its unanimous
decision was announced just a few days ago when, on December 27, 2005, the
opinion in the case of Commonwealth v. Terry L. Patterson was published. It
contains good news and bad news for the friction ridge examination
community. The good news is that "fingerprint" individualizations and the
ACE-V method were, again, given a broad seal of approval, both in terms of
meeting the "general acceptance" test of the Frye case (which is the test
for Massachusetts courts), and the Daubert requirements of the federal
courts. But that approval only goes to "normal" latent print
individualizations. The bad news is that the application of the underlying
principles of friction ridge science and its ACE-V methodology were not
proved sufficiently reliable, in the view of the Massachusetts high court,
to justify admission of individualizations based on simultaneous impressions
when none of the individual impressions contain enough information to
justify individualization independently.
In the process of arriving at this conclusion, the court made some
interesting comments that are worth noting, but before we get to these,
let's briefly review the facts.
Patterson had been convicted of murdering a Boston police detective. A
crucial part of the evidence was the testimony of a Boston P.D. latent print
examiner who had determined that four latent impressions visualized on the
victim's car were simultaneously impressed by the fingers on one hand, and
that in his opinion these impressions, collectively, were made by the
defendant. None of the impressions could be matched individually to a
specific finger, but, in the aggregate, the expert's opinion was that they
were made by Patterson's left hand fingers. Patterson's conviction was
reversed on unrelated grounds and a retrial was ordered.
Before the retrial, however, the defense moved to bar the admission of all
fingerprint evidence, testimony about the ACE-V method, and the
admissibility of testimony based on simultaneous impression evidence. A
little over a year ago, the judge hearing the motion, denied all parts of it
in a well considered opinion. On review, the Supreme Judicial Court of
Massachusetts affirmed two parts of that ruling, and reversed one part of
As indicated before, "fingerprint identification" was determined to have met
the "general acceptance" test of the Frye decision, as applied in the state
in the case of Commonwealth v. Lamigan, 419 Mass. 15 (1994), and therefore,
that part of the trial judge's motion was affirmed. While Frye/Lanigan is
the state rule, the trial judge had reviewed the Daubert factors as well,
and found them to be satisfied also. Again, the state high court approved,
as did it affirm the judge's decision that the ACE-V methodology is
sufficiently reliable to allow for the admission of individualization
testimony using that method. The high court found, however, that the state
had not fulfilled its burden of showing that the process of individualizing
latent prints on less than the normal quantum of needed data, solely because
they had been said to have been impressed simultaneously was either
generally accepted in the profession or otherwise proved reliable and
validated. It found plenty of evidence that individualizations of "regular"
latent prints had been shown to be firmly validated, but found no studies
that dealt with simultaneous impressions. Therefore, the portion of the
trial judge's ruling that had held simultaneous fingerprint evidence
admissible was reversed.
Here are some important points that ought to be noted, and not necessarily
in the order in which they were discussed in the opinion:
1. SWGFAST was recognized by the Court as the body that sets the guidelines
and standards for the practices of the friction ridge examination
profession. Its methodology of formulating standards after careful study,
then publishing them for comment by the profession, and its later review,
modification and ultimate adoption, is also the appropriate way for the
profession to develop and adopt its standards.
2. ACE-V is the standard adopted by SWGFAST by which to compare latent
fingerprints with prints of known origin.
3. The Frye rule of "general acceptance" continues to be the standard for
admission of expert testimony in the Commonwealth: "[G]eneral acceptance . .
. continues to be sufficient to establish the requisite reliability for
admission in Massachusetts courts regardless of other Daubert factors."
Fingerprint testimony in general meets this standard and no Daubert analysis
is required where general acceptance was proved.
4. The Daubert rule -- which the court called a more flexible admissibility
standard -- is one that ought to be used by courts to evaluate the
admissibility of evidence that does not meet the "general acceptance"
standard of Frye. The Court said, in this regard: "Where general acceptance
is not established by the party offering the expert testimony, a full
Daubert analysis provides an alternate method of establishing reliability."
[This, by the way, is not at all how other courts interpret Daubert; most
other courts hold the Daubert standards to be more stringent than those of
5. The reliability of ACE-V as applied to single latent impressions is
distinct from the question of the reliability of ACE-V as applied to
simultaneous impressions. The latter does not satisfy a Daubert analysis.
Quoting David Ashbaugh, the court stated that the application of ACE-V in
England to simultaneous impressions has "resulted in a hodgepodge of
doctrine that is far removed from the truth," and that it "requires a
certain leap of faith" and has "no supporting rationale."
6. The "verification" part of ACE-V is NOT adequate "peer review" as that
term is used in Daubert, since the "verifiers" know that an identification
has already been effected and also know the name of the party who has been
identified. The court said, "We share the [trial] judge's consternation with
the current verification process."
7. A community of professionals who judge the reliability and general
acceptance of a technique must be broad enough so that critics or dissenters
within the group have an opportunity to be heard and their arguments
considered. It need not be composed of academics or scientists: "A
technical community, or a community of experts who have some other
specialized knowledge, can qualify as a relevant Daubert community in the
same way as a scientific community can." The fingerprint community meets
8. Despite some highly publicized recent cases of misidentifications, the
court recognizes that the error rate for single latent print
individualizations is low, but no data exist with respect to simultaneous
Now, on to the complete decision:
[from the westlaw website
NOTICE: slip opinions are subject to formal revision and are superseded by
the advance sheets and bound volumes of the Official Reports. This
preliminary material will be removed from the court Web site once the
advance sheets of the Official Reports are published. If you find a
typographical error or other formal error in this text, please notify the
Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030;
Terry L. PATTERSON.
September 7, 2005. -
December 27, 2005.
Present: Marshall, C.J.,
Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
Evidence, Fingerprints, Scientific test, Expert opinion.
INDICTMENTS found and returned in the Superior Court Department on October
After review by this court, 432 Mass. 767 (2000), a pretrial motion to
suppress evidence was heard by Margaret R. Hinkle, J., and a question
of law was reported by her to the Appeals Court.
The Supreme Judicial Court granted an application for direct appellate
John H. Cunha, Jr. (Helen Holcomb & Charles Allan Hope with
him) for the defendant.
Donna Jalbert Patalano, Assistant District Attorney, for the
The following submitted briefs for amici curiae:
Robert C. Cosgrove, Assistant District Attorney, for District
Attorney for the Berkshire District & others.
David M. Siegel, Stanley Z. Fisher, & Daniel Givelber for New England
Innocence Project & others.
Lisa J. Steele for National Association of Criminal Defense Lawyers &
LaDonna J. Hatton & Christopher Pohl, Special Assistant Attorneys
General, for Secretary of Public Safety.
In 1995, Terry L. Patterson was convicted of the murder of a Boston police
detective. [FN1] His conviction was based in large part on the expert
testimony of a member of the Boston police latent fingerprint section, who
used the most common method of latent fingerprint identification, ACE-V,
[FN2] to determine that four latent impressions found on the victim's
vehicle were left by Patterson. While no single latent impression, on its
own, could reliably be matched to its allegedly corresponding finger, the
fingerprint examiner based his testimony on the cumulative similarities
observed between the impressions and their corresponding fingers. The
examiner opined that the four impressions could be analyzed collectively
because he believed them to be simultaneous impressions, that is,
impressions of multiple fingers made by the same hand at the same time.
After this court set aside Patterson's convictions on a ground not relevant
to this appeal, see Commonwealth v. Patterson, 432 Mass. 767, 768
(2000), Patterson moved to exclude all fingerprint evidence from his retrial
because, in his view, the Commonwealth's latent fingerprint identification
evidence was unreliable and thus inadmissible under Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579 (1993) (Daubert ), and
Commonwealth v. Lanigan, 419 Mass. 15 (1994) (Lanigan ). After
conducting an evidentiary hearing, a Superior Court judge denied Patterson's
motion and reported the issue to the Appeals Court. We granted Patterson's
application for direct appellate review to determine whether the judge
abused her discretion in finding that the Commonwealth had established the
reliability of its latent fingerprint identification evidence.
Consistent with the decisions of other courts that have considered the issue
since Daubert, we conclude that the underlying theory and process of
latent fingerprint identification, and the ACE-V method in particular, are
sufficiently reliable to admit expert opinion testimony regarding the
matching of a latent impression with a full fingerprint. In this case,
however, the Commonwealth needed to establish more than the general
reliability of latent fingerprint identification. It needed to establish
that the theory, process, and method of latent fingerprint identification
could be applied reliably to simultaneous impressions not capable of being
individually matched to any of the fingers that supposedly made them. On the
record before the judge below, the Commonwealth failed to meet its burden.
1. Background. Before addressing the legal claims, we will briefly
lay out the theory behind and modern application of latent fingerprint
identification as well as the factual history of this case. We rely
principally on the findings of fact made by the motion judge in connection
with Patterson's motion to exclude the fingerprint evidence and on the
transcript of the previous trial.
a. Latent fingerprint identification theory. Fingerprint evidence has
been used extensively in criminal investigations and trials for more than
one hundred years. Fingerprints are left by the deposit of oil on contact
between a surface and the friction ridges of a finger. Latent fingerprints
are fingerprint impressions that are not visible to the naked eye without
chemical enhancement. These latent print impressions are almost always
partial and may be distorted due to less than full, static contact with the
object and to debris covering or altering the latent impression.
The theory behind latent fingerprint identification, called
"individualization," is that a positive identification can result from the
comparison of two fingerprints containing sufficient quality and quantity of
detail. The underlying premise of this theory is the uniqueness and
permanence of human friction ridge arrangements--that no two fingers, even
on the same hand of the same person, contain the same ridge pattern. This
uniqueness begins during prenatal development, when a template of the ridge
patterns appears on the skin, and absent damage to the template, remains in
the same exact form throughout one's life. A fingerprint should accordingly
only match one finger of one person in the world.
b. The process of identification (ACE-V). The uniqueness of two full
fingerprints does not, in and of itself, prove that one small portion of a
fingerprint cannot mirror one portion of another fingerprint. And because
latent print impressions left at crime scenes are often partial impressions
of a full fingerprint, subject to significant distortions, it is a question
of significant dispute as to how much detail in the latent print must be
demonstrable to assert reliably its identity with a known fingerprint.
Consequently, law enforcement and forensic scientists have endeavored to
create and refine the method by which they identify the true "owner" of
latent print impressions. A latent fingerprint impression lifted from a
crime scene is compared to a full exemplar print taken from the suspect
under controlled circumstances by dipping his finger in ink and slowly
impressing his entire finger on a card in order to ensure full transcription
of the finger. Matches of a latent print to a full print are made in several
ways. A latent print can be processed through a computerized system that
compares it to a rather large database of known full prints. Alternatively,
a set of a suspect's fully inked fingerprints can be given to an examiner
for comparison purposes. Either way, the fingerprint examiner ultimately
compares the latent print to its potentially matching full print using a
method known as ACE-V (analysis, comparison, evaluation, and verification).
In the analysis stage of ACE-V, the examiner looks at the first of three
levels of detail ("level one") on the latent print. Level one detail
involves the general ridge flow of a fingerprint, that is, the pattern of
loops, arches, and whorls visible to the naked eye. The examiner compares
this information to the exemplar print in an attempt to exclude a print that
has very clear dissimilarities. At this stage, the examiner also looks for
focal points--or points of interest--on the latent print that could help
prove or disprove a match. Such focal points are often at the boundaries
between different ridges in the print. The examiner will then collect level
two and level three detail information about the focal points he has
observed. Level two details include ridge characteristics (or Galton Points)
like islands, dots, and forks, formed as the ridges begin, end, join or
bifurcate. Level three details involve microscopic ridge attributes such as
the width of a ridge, the shape of its edge, or the presence of a sweat pore
near a particular ridge.
In the comparison stage, the examiner compares the level one, two, and three
details of the focal points found on the latent print with the full print,
paying attention to each characteristic's location, type, direction, and
relationship to one another. The comparison step is a somewhat objective
process, as the examiner simply adds up and records the quantity and quality
of similarities he sees between the prints. In the evaluation stage, by
contrast, the examiner relies on his subjective judgment to determine
whether the quality and quantity of those similarities are sufficient to
make an identification, an exclusion, or neither.
While some jurisdictions require (or used to require) a minimum number of
Galton point similarities to declare an individual match between a latent
and full print, most agencies in the United States no longer mandate any
specific number. [FN5] Rather, the examiner uses his expertise, experience,
and training to make a final determination. There is a rule of examination,
the "one-discrepancy" rule, that provides that a nonidentification finding
should be made if a single discrepancy exists. However, the examiner has the
discretion to ignore a possible discrepancy if he concludes, based on his
experience and the application of various factors, that the discrepancy
might have been caused by distortions of the fingerprint at the time it was
made or at the time it was collected.
Assuming a positive identification is made by the first examiner, the
verification step of the process involves a second examiner, who knows that
a preliminary match has been made and who knows the identity of the suspect,
repeating the first three steps of the process.
c. Simultaneous impressions. The ACE-V method is usually employed to
match one latent fingerprint impression to one fully inked fingerprint.
Often, however, a person leaves latent impressions of multiple fingers on
objects that he touches. Such fingerprint impressions left by the same
person at the same time are referred to as simultaneous impressions. A
difficulty arises when no single latent impression in the cluster of
simultaneous impressions has a sufficient quantity or quality of similar
detail to be matched reliably to a single fully inked fingerprint using the
ACE-V approach. In such cases, some fingerprint examiners have applied the
ACE-V method to identify suspects based on the aggregate number of
similarities between latent and full impressions of multiple fingers.
For example, assume five latent fingerprint impressions are found on a table
in a manner that suggests they were left by a person placing his full hand
down on that table. If each of those prints had only three points of
similarity of moderate quality relative to a corresponding fully inked
fingerprint, an examiner who requires eight similarity points of moderate
detail to make an identification would not be able to match any individual
impression to any individual fully inked fingerprint. If the examiner
applied ACE-V collectively to the simultaneous impressions, however, he
might conclude that fifteen points of similarity (five fingers with three
similarity points per finger) between the impressions left on the table and
a suspect's hand signifies a definite match. A fingerprint examiner would
first have to use his expertise, experience, and training to determine
whether the several latent impressions were in fact created simultaneously.
In doing so, the examiner apparently may take into account the distance
separating the latent impressions, the orientation of the impressions, the
pressure used to make the impression, and any other facts the examiner deems
relevant. The record does not, however, indicate that there is any approved
standardized method for making the determination that two or more print
impressions have been made simultaneously.
d. Factual history. On September 26, 1993, the body of Detective John
Mulligan of the Boston police department was found in his truck outside a
Walgreens store in the Roslindale section of Boston. Detective Mulligan, who
performed paid security work for the store, had been shot five times at
extremely close range. Detective Mulligan's department-issued sidearm was
missing from his holster. A store employee saw Detective Mulligan asleep in
his truck at 3:30 A.M. and found him dead with a bloodied face
fifteen minutes later. Several witnesses recalled seeing two black men near
the Walgreens in the early morning of September 26, but none could offer
more than a very vague and general description of those men. On October 27,
1993, Patterson was indicted for armed robbery, two counts of possession of
a dangerous weapon, and the murder of Detective Mulligan. At trial, the
Commonwealth argued that two men, one of whom was Patterson, happened on the
sleeping detective and seized the opportunity to rob him of his firearm.
The Commonwealth introduced evidence, through the testimony of Robert Foilb
of the Boston police latent fingerprint section, that four latent
fingerprint impressions recovered from the window of the driver's door of
Detective Mulligan's truck were made simultaneously by four fingers on
Patterson's left hand as he closed the driver's door. Foilb explained that
the location of the print impressions in relation to each other and the
direction and manner in which they each streaked on the glass reinforced his
belief that they were left by multiple fingers of the same hand at the same
time. Comparing these prints to inked fingerprints of all ten of Patterson's
fingers, Foilb concluded that the four prints corresponded to the little
finger, ring finger, middle finger, and index finger of Patterson's left
On cross-examination, Foilb testified that the locally accepted norm for
successfully matching a latent print to a full fingerprint was eight points
of similarity. He conceded that none of the four latent fingerprints
contained enough similarity with the fully inked print of Patterson's
corresponding finger to satisfy this generally accepted minimum norm and be
individually matched. Notwithstanding this concession, Foilb opined that he
could conclusively determine that the four simultaneous print impressions
were those of Patterson because the sum of the points of similarity on the
four fingers, which he determined respectively to be six, five, two, and
zero, totaled thirteen--thus exceeding the eight point similarity standard.
He testified that the similarities found in simultaneous impressions "can be
counted as a total number because there is no other way to have those
fingerprints put on an object."
On February 1, 1995, a jury convicted Patterson on all charges. On December
6, 2000, his convictions were reversed because of a conflict of interest
that deprived Patterson of the effective assistance of counsel at trial. See
Commonwealth v. Patterson, 432 Mass. 767, 781 (2000). Noting that
"the evidence was sufficient to support the convictions," id. at 768,
this court remanded the case to Superior Court for a new trial. See id.
On October 11, 2002, Patterson filed a motion in limine to exclude all
fingerprint evidence from his retrial. The Commonwealth sought to offer
latent fingerprint identification evidence similar to the evidence it
presented at Patterson's first trial for the purpose of placing him at the
scene of the crime, including testimony regarding the four supposedly
simultaneous impressions. [FN6] Patterson argued that the Commonwealth's
latent fingerprint identification failed to meet the Daubert
reliability standard governing the admissibility of expert opinion testimony
that this court adopted in Lanigan, supra. He also contended that the
ACE-V methodology was an unreliable application of the theory of latent
fingerprint identification. Finally, he argued that even if the judge found
the ACE-V process to be reliable in matching one particular latent print of
a finger to a fully inked print of the same finger, this method was still
unreliable when applied to cases of simultaneous impressions in which none
of the individual prints could be separately matched. In May, 2004, a judge
in the Superior Court held a Daubert-Lanigan hearing over five
days, which included live testimony from two witnesses, affidavits,
previously recorded expert testimony from other cases, and a large number of
exhibits. [FN7] The Commonwealth offered live testimony of Supervisory
Fingerprint Specialist Stephen Meagher of the Federal Bureau of
Investigation (FBI) and transcripts of testimony given at a similar hearing,
see United States v. Mitchell, 365 F.3d 215 (3d Cir.2004), by Royal
Canadian Mounted Police Fingerprint Examiner David R. Ashbaugh and noted
biological anthropologist Dr. William J. Babler. Patterson offered the live
testimony of George Washington University professor of forensic sciences
James E. Starrs and the transcripts of testimony of David Stoney, a doctor
of forensic sciences from the University of California at Berkeley, and
Simon A. Cole, who has a doctorate in science and technology from Cornell
University, also given in the Mitchell case.
e. The judge's original order. On October 12, 2004, the motion judge
issued a detailed order (original order) denying Patterson's motion. In her
order, the judge explained that the admissibility of expert testimony
depended on the reliability of the theory and methodology that the expert
used to reach an opinion. The judge relied on the test established in
Daubert to determine the reliability of latent fingerprint
identification theory and the ACE-V methodology. While recognizing that the
test for reliability was flexible and did not necessarily require an
examination of all or even most of the five factors that Daubert
recognized as potentially relevant to such an inquiry, she carefully and
thoroughly applied each factor to latent fingerprint identification theory
and to the ACE-V methodology. Those factors are: (1) whether the testimony's
underlying theory and application is generally accepted in the relevant
scientific-technical community, (2) whether the theory and application have
been or can be subjected to testing, (3) whether they have been subjected to
peer review and publication, (4) whether the application has an unacceptably
high known or potential error rate, and (5) whether the application is
governed by recognized standards.
The judge first concluded that both latent fingerprint identification theory
in general and the ACE-V methodology in particular are generally accepted in
the fingerprint examiner community. [FN8] For support, she pointed to an FBI
survey of fifty-three domestic and foreign jurisdictions that confirmed the
unanimous and long-standing acceptance of latent fingerprint identification
theory. Similarly, she found that there existed "overwhelming support for
ACE-V in the forensic identification community." She rejected Patterson's
contention that the community was not broad enough to count as a relevant
community for Daubert purposes. Finally, the judge noted the long and
virtually universal history of court acceptance of fingerprint
Despite recognizing that Lanigan posited that "general acceptance"
would often be the only factor necessary to the inquiry, the judge proceeded
to address the other Daubert factors, beginning with the testability
of latent fingerprint identification theory and the ACE-V methodology. She
concluded that, although the theory underlying latent fingerprint
identification-- uniqueness and permanence of fingerprints--is testable and
has been successfully tested, the notion that a person can be positively
identified from an individual latent fingerprint impression that contains
sufficient quantity and quality of ridge detail is somewhat less testable.
The judge noted that ACE-V defies easy testing because it does not require a
minimum number of similarities, but rather operates on a subjective sliding
scale. The judge also explained that an FBI study that matched 50,000
simulated latent prints against 50,000 full prints with no false positives
was not particularly helpful. She considered it to be a flawed test because
the simulated latent prints were not subject to real world distortions. The
judge ultimately discounted the testability problem, however, because the
print matches used in court are usually accompanied by expert testimony that
establishes the number of similarities observed between the latent and full
print and can form the basis of testing by the opposition's independent
The judge next concluded that the ACE-V methodology had been subjected to
limited peer review in forensic publications and during the process of
formalizing the ACE-V guidelines by the Scientific Working Group on Friction
Ridge Analysis, Study and Technology (SWGFAST). [FN9] However, the judge
disagreed with the Commonwealth that the verification procedure, which she
described as illusory, constituted peer review, and thus found that this
factor only slightly favored admission of the evidence.
Turning to error rate, the judge found the ACE-V error rate for false
positive identifications to be very low. Relying largely on an extensive FBI
survey in which no State agency returned a false positive when attempting to
match a set of latent prints against seventy million full ten-prints
records, the judge noted that recent high profile cases of misidentification
do not alter the over-all low error rate. She similarly discounted evidence
of poor scores that examiners sometimes receive on routine proficiency tests
administered by their respective agencies.
Finally, the judge concluded that ACE-V is controlled by appropriate
standards despite the lack of a uniform, minimum number of similarities
requisite to declaring a match. The judge determined that the rigorous
qualification and training standards normally required for FBI fingerprint
examiners help to control the operation of ACE-V, which itself is a
relatively uniform procedure. With the Daubert factors generally
favoring admission, the judge denied Patterson's motion to exclude the
Commonwealth's fingerprint evidence identifying Patterson as the person who
left four simultaneous impressions on the door of the victim's truck.
f. The judge's supplemental order. On November 29, 2004, the judge
issued a four-page supplemental order, in which she acknowledged that her
previous decision "did not explicitly address the reliability of the process
of making an identification based on 'simultaneous' impressions." She
concluded that the application of ACE-V to simultaneous impressions was
sufficiently reliable to be admitted. This conclusion was based primarily on
Agent Meagher's testimony that the use of simultaneous impressions
positively to identify a person "involves the exact process involved in
individualizing a single latent print, simply applying ACE-V to the
composite of level one, two, and three detail of multiple prints from the
same hand." The judge added that the use of a fingerprint examiner's
judgment to determine whether multiple impressions were deposited
simultaneously does not make the process unreliable. The judge also noted
that Agent Meagher testified that the use of ACE-V in situations of
simultaneous impressions was generally accepted in the community of
fingerprint examiners, and found that fingerprint examiners in Great Britain
sometimes use a similar approach. The judge acknowledged, however, that one
of the Commonwealth's witnesses, Royal Canadian Mounted Police Fingerprint
Examiner David Ashbaugh, was of the view that the application of ACE-V to
simultaneous impressions is a "hodgepodge" approach not based on any
science. Finally, the judge found that the absence of a specific
peer-reviewed study or published article validating the use of ACE-V in
situations of simultaneous impressions is not fatal to its admissibility, as
reliability can be shown through other Daubert factors.
To the extent that the judge performed a separate factor-by-factor
Daubert analysis of the application of ACE-V to simultaneous
impressions, her analysis was implied and brief. This is apparent when her
supplemental order is compared to her painstaking review of the record in
her original order. The most plausible reading of the judge's supplemental
order is that she found the application of ACE-V to simultaneous impressions
sufficiently reliable because she concluded that it did not differ in any
significant way from the use of ACE-V to match a single latent fingerprint
g. Reservation and report. On January 14, 2005, the judge reserved
and reported her orders to the Appeals Court because, in her view, the
question of admissibility of fingerprint evidence in this case is both
important and doubtful. See Mass. R.Crim. P. 34, 378 Mass. 905 (1979).
2. Discussion. Trial judges serve a gatekeeper function with respect
to expert opinion testimony based on specialized knowledge. See Lanigan,
supra at 26. "If the process or theory underlying [an] ... expert's
opinion lacks reliability, that opinion should not reach the trier of fact."
a. Standard of review. We review a judge's Lanigan decision
for abuse of discretion. See General Elec. Co. v. Joiner, 522 U.S.
136, 141-143 (1997); Canavan's Case, 432 Mass. 304, 311-312 (2000).
While our review under this standard is deferential and limited, it is not
perfunctory. A judge's findings must apply the correct legal standard to the
facts of the case and must be supported by an examination of the record. See
id. at 312 ("applying an abuse of discretion standard on appellate
review will allow trial judges the needed discretion to conduct the
inherently fact-intensive and flexible Lanigan analysis, while
preserving a sufficient degree of appellate review to assure that Lanigan
determinations are consistent with the law and supported by a sufficient
factual basis in the particular case").
b. The Lanigan analysis. In Daubert, the United States
Supreme Court announced a new test to govern the admissibility in Federal
courts of expert testimony based on scientific, technical, and other
||[FN11] While the most
common pre-Daubert test, set forth in Frye v. United States,
293 F. 1013 (D.C.Cir.1923) (Frye ), required the theory and
methodology in question to be generally accepted by a relevant
scientific community, the new, more flexible standard laid out five
factors that a court might consider in a determination of reliability
in the totality of the circumstances. Daubert, supra at
593-594. The Frye general acceptance test became simply one of
the five factors in the Daubert test. See Lanigan, supra
at 25 ("In its Daubert opinion, the Court recognized that
general acceptance ... was a relevant factor in determining ...
admissibility.... But such acceptance, the essential ingredient of the
Frye principle, is not the sole test" [citation omitted] ).
Massachusetts historically hewed to the Frye general acceptance test.
See Lanigan, supra at 24, quoting Commonwealth v. Curnin, 409
Mass. 218, 222 (1991) ("Our test ... has usually been ... 'whether the
community of scientists involved generally accepts the theory or process'
"). In Lanigan, supra at 25-26, however, we adopted, in part, the new
Daubert standard. In so doing, we cautioned that "general acceptance
in the relevant ... community will continue to be the significant, and often
the only, issue." Id. at 26.
Lanigan 's progeny make clear that general acceptance in the relevant
community of the theory and process on which an expert's testimony is based,
on its own, continues to be sufficient to establish the requisite
reliability for admission in Massachusetts courts regardless of other
Daubert factors. See Commonwealth v. Sands, 424 Mass. 184,
185-186 (1997) ("party seeking to introduce scientific evidence may lay a
foundation either by showing that the underlying scientific theory is
generally accepted within the relevant scientific community, or by
showing that the theory is reliable or valid through other means" [emphasis
added] ); Canavan's Case, supra at 310 (Lanigan 's partial
adoption of Daubert was merely "to account for [the] circumstance"
where "strict adherence to the Frye test" caused otherwise reliable
evidence to be excluded because it had not yet become generally accepted).
See also Commonwealth v. Senior, 433 Mass. 453, 458-459 (2001)
(same). Where general acceptance is not established by the party offering
the expert testimony, a full Daubert analysis provides an alternate
method of establishing reliability. See Lanigan, supra at 26
("proponent of scientific opinion evidence may demonstrate the reliability
or validity of the underlying scientific theory or process by some other
means, that is, without establishing general acceptance"). See also
Commonwealth v. Sands, supra at 186 n. 1 (the absence of general
acceptance is simply "a factor for the court to consider" in its subsequent
c. Reliability of latent fingerprint identification and ACE-V in general.
The judge acted well within her discretion in concluding that latent
fingerprint identification theory is generally accepted in the community of
fingerprint examiners. [FN12] At the hearing, the Commonwealth presented a
1999 survey, conducted by Agent Meagher, confirming that the top law
enforcement agencies in all fifty States, the District of Columbia, Canada,
and England accept the theory of latent fingerprint identification. Each
jurisdiction reported that it accepted the use of both fully recorded and
latent fingerprints as a positive means of identification. This survey is a
sufficient basis on which the judge could have concluded there to be general
acceptance of the theory in the fingerprint examiner community. See
United States v. Mitchell, 365 F.3d 215, 241 (3d Cir.2004) ("The answer"
to whether fingerprint identification is generally accepted in forensic
community "is yes, as demonstrated by the results of the FBI's survey of
state agencies"). Other evidence before the judge, and findings reported in
other cases, reveal that fingerprint experts from countries around the world
also accept and apply the theory of latent fingerprint identification. See
id. at 222; United States v. Llera Plaza, 188 F.Supp.2d. 549,
555, 566-567 (E.D.Pa.2002).
The judge's additional conclusion that the ACE-V methodology used to compare
a latent fingerprint impression to a fully inked fingerprint is generally
accepted is also adequately supported by the record. Agent Meagher
represented, and it was not disputed, that ACE-V is the standard methodology
used throughout the United States and other parts of the world. Supporting
Agent Meagher's testimony, the record establishes that SWGFAST has, after
multiple levels of debate and peer review by its own members and the
International Association for Identification (IAI), adopted and published
fingerprint identification standards setting forth the ACE-V methodology.
Notably, Patterson does not dispute the assertion that the fingerprint
examiner community generally accepts either latent fingerprint
identification theory or the ACE-V methodology. Rather, he argues that this
community is not sufficiently broad to constitute "a relevant scientific
community" for purposes of gauging general acceptance, and that the problem
is acute because the fingerprint examiner community lacks financially
disinterested academics and is prone to stifling dissent.
Given that Lanigan applies to technical evidence as well as
scientific evidence, Canavan's Case, 432 Mass. 304, 313 (2000), we do
not concern ourselves with whether fingerprint examiners are scientists or
technicians. See United States v. Mitchell, supra at 241 (rejecting
argument that "there is no scientific community that generally accepts
fingerprint identification" because "the scientific/nonscientific
distinction is irrelevant after [Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999) ]"); United States v. Llera Plaza, supra at 563,
quoting Fed.R.Evid. 702 ("the fingerprint community's 'general acceptance'
of ACE-V should not be discounted because fingerprint specialists ... have
'technical ... knowledge' ... rather than 'scientific ... knowledge' ... and
hence are not members of what Daubert termed a scientific
community"). A technical community, or a community of experts who have some
other specialized knowledge, can qualify as a relevant Daubert
community in the same way a scientific community can.
We are, however, cognizant of the need to define the relevant community. In
Canavan's Case, this court explained that "[a] relevant scientific
community must be defined broadly enough to include a sufficiently broad
sample of scientists so that the possibility of disagreement exists," and we
cautioned trial judges not to "define the 'relevant scientific community' so
narrowly that the expert's opinion will inevitably be considered generally
accepted." Id. at 314 n. 6. In the context of technical forensic
evidence, the community must be sufficiently broad to permit the potential
The judge properly ensured that the technical community in which latent
fingerprint identification and ACE-V is generally accepted is broad enough
to include "some practitioners who acknowledge flaws in the methodology" and
tolerant enough to allow "some, albeit, limited room for dissent." For
example, the guidelines and standards developed by SWGFAST committees are
subject to repeated discussion, critique, and debate by the entire SWGFAST
community and by members of the IAI. Additional room for disagreement lies
in the ongoing debate over how many points of similarity, if any, are needed
to conclusively make a match. See United States v. Llera Plaza, supra
at 567. Further, as we will discuss below, even one of the fingerprint
examiners whose testimony in the Mitchell case was offered by the
Commonwealth--David Ashbaugh--registered objection to the particular
application of ACE-V that the Commonwealth is seeking to use in this case.
We cannot conclude that the judge abused her discretion in finding that the
community allowed enough room for and had enough debate to be considered a
relevant technical community. This finding has support in the unanimity with
which modern courts have concluded that latent fingerprint identification
theory and ACE-V are generally accepted by the fingerprint examiner
community and that that community qualifies as a relevant community for
Daubert purposes. Cf. Commonwealth v. Senior, 433 Mass. 453,
461-462 (2001) ("Given the evidence of reliability presented by the
Commonwealth, and the admissibility of similar evidence in other
jurisdictions, the judge did not abuse his discretion in finding that the
evidence ... was sufficiently reliable"). See, e.g., United States v.
Mitchell, supra at 241 (concluding fingerprint identification is
generally accepted in forensic community); United States v. Crisp,
324 F.3d 261, 268-269 (4th Cir.2002), cert. denied, 540 U.S. 888 (2003),
quoting United States v. Starzecpyzel, 880 F.Supp. 1027, 1038
(S.D.N.Y.1995) (rejecting claim that general acceptance of fingerprint
identification in expert community should be discounted because community
"is devoid of financially disinterested parties such as academics");
United States v. Sullivan, 246 F.Supp.2d 700, 702-703 (E.D.Ky.2003)
("ACE-V methodology easily satisfies the general acceptance factor of
Daubert. ... Daubert requires the court to consider whether ACE-V
has been accepted by a substantial portion of the pertinent scientific or
technical community"); United States v. Llera Plaza, supra at 563-564
(accepting as relevant community fingerprint specialists with technical or
specialized knowledge). The defendant has given us no reason to reject the
common judicial wisdom that considers the fingerprint examiner community a
relevant community for Daubert purposes.
Because both latent fingerprint identification theory and the use of ACE-V
to match a latent impression to a fully inked fingerprint are generally
accepted by a sufficiently broad community of technical experts, the judge
had an adequate basis for concluding that ordinary single impression latent
fingerprint identification is reliable, and did not need to examine the
other Daubert factors. Her original order is affirmed.
d. Reliability of latent fingerprint impression (and ACE-V) applied to
simultaneous impressions. While establishing that the reliability of
latent fingerprint identification and ACE-V is necessary to admit the
Commonwealth's fingerprint evidence, it is not sufficient. Rather, the
evidence can only be admitted if, in addition to the reliability of the
theory and process in general, the process is reliable when applied to the
specific issue about which the expert is proposing to testify. See Kumho
Tire Co. v. Carmichael, supra at 153-154 ("specific issue before
the court was not the reasonableness in general of [the expert's
method]. Rather, it was the reasonableness of using such an approach ... to
draw a conclusion regarding the particular matter to which the expert
testimony was directly relevant "); Canavan's Case, supra at
311-312, quoting State v. Alberico, 116 N.M. 156, 169 (1993)
(rejecting de novo standard of review in Lanigan cases because that
standard incorrectly assumes that "application of a particular scientific
method would not vary from case to case and thus would be worthy of a
judicial stamp of approval or rejection as a matter of law").
In this case, the Commonwealth proposes to call a State trooper, trained in
fingerprint examination, to testify that he used the ACE-V methodology
positively to identify Patterson as the person who left four latent
simultaneous impressions on the victim's truck, despite the fact that the
application of ACE-V to any of the individual latent impressions would not
have led to a match. Such testimony is based on the theory that once a group
of latent impressions are identified as simultaneous impressions, an
otherwise unacceptably small number of similarities between each of the
impressions and its allegedly corresponding fully inked fingerprint can form
the basis for a collective determination as to whether the entire group of
latent impressions matches a corresponding group of full fingerprints. To
gain admission of the trooper's testimony, then, the Commonwealth must
establish that adding up similarity points of simultaneous impressions is a
reliable way to use ACE-V to effectuate latent fingerprint identification.
Instead of engaging in the deliberate factor-by-factor analysis that she
undertook with respect to the more general theory and application of latent
fingerprint identification, however, the judge assumed the reliability of
the application of ACE-V to simultaneous impressions because it "involves
the exact process" simply applied to a "composite" record of the detail of
"multiple prints from the same hand." In doing so, the judge appeared to
endorse the Commonwealth's position that any added potential for error in
the identification process caused by applying ACE-V to simultaneous
impressions is relevant only to the weight of evidence and not its
reliability and, therefore, is not relevant to its admissibility.
In support of the judge's conclusion, the Commonwealth points to our recent
decision in Commonwealth v. Gaynor, 443 Mass. 245 (2005), upholding
the admission of deoxyribonucleic acid (DNA) evidence. [FN13] In that case,
we suggested that the defendant's arguments attacking the reliability of
particular DNA tests (regarding "mixed sample" testing) failed in part
because "the issues raised by the defendant went to the weight of the
evidence, not its admissibility." Id. at 267. The Commonwealth seizes
on these statements to argue that once ACE-V is found to be generally
reliable, any application of it also must be sufficiently reliable to be
admitted in evidence.
The Commonwealth has misread Commonwealth v. Gaynor, supra. Our
comments presupposed a finding that the particular application of the DNA
test used was reliable. See id. at 265 ("The judge's findings
that [Cellmark Diagnostic Laboratories'] methodology in reporting tests of a
mixed sample with an identifiable primary contributor in the same way it
reports tests of a single source sample conforms to the recommendations of
the [National Resource Council], and that Cellmark's methodology in
dealing with the presence of mixtures or technical artifacts is generally
accepted within the scientific community, were made with record support and
well within his discretion " [emphasis added] ). The opinion noted with
emphasis that the reliability of mixed sample testing was considered
reliable because it was generally accepted in its own right, not by mere
virtue of the reliability of single sample testing. [FN14]
Consistent with our opinion in Commonwealth v. Gaynor, supra, we
recognize that applying ACE-V to simultaneous impressions sufficiently
alters the process to require its own reliability inquiry. An examiner must
first determine whether the impressions were simultaneously left at the
scene, and then apply ACE-V not to a single finger but to multiple separate
sections of a whole hand. Notwithstanding contentions that the enlargement
of the zone of comparison does not change the process, the process is
fundamentally altered when an examiner is asked to make a determination, as
he was in this case, that a particular latent impression matches a
particular full fingerprint despite the absence of enough similarity to
determine a match solely by comparing those two prints.
Arguments that the application of ACE-V to simultaneous impressions is
simply an extension of ACE-V in general prove too much. Under this theory,
any impressions--whether simultaneous or not--that an examiner believed to
be left by the same person could be subject to ACE-V testing free from a
Daubert inquiry. Likewise, because each full hand print is apparently
unique, it would follow that, under this theory, an examiner could subject
impressions from two different hands (that did not contain enough
similarities on their own to declare a match) to this cumulative analysis
without requiring a separate Daubert inquiry. [FN15]
In Commonwealth v. Gaynor, supra, we did not hold that judges should
abdicate their role in reviewing various applications of generally accepted
methodologies on which experts base their opinions. To the contrary, we
noted that the "determination of the reliability of the testing process
entails a fact-based inquiry, including questions of credibility." Id.
at 264. While questions of credibility are traditionally left for the jury,
we explained that, in this context, this inquiry was the responsibility of
the judge. See id., citing Commonwealth v. McNickles, 434
Mass. 839, 850 (2001) ( "analysis calls on a judge to determine whether
testing was properly performed").
It is beyond doubt that Daubert and Lanigan envision that the
jury will decide the ultimate question of the conclusiveness of the results
of a reliable application of a methodology, see Daubert, supra at
594-595 ("The focus [of the Daubert inquiry], of course, must be
solely on principles and methodology, not on the conclusions that they
generate"), because even reliable procedures can lead to incorrect results.
A judge's evidentiary determination that a particular application is
reliable simply allows the jury to determine whether such an application led
to a reliable result, taking into account all of the facts at hand. Judges,
however, need not admit (and juries need not wrestle with) every application
of a testing method--no matter how dubious-- merely because another
application of the method has been deemed reliable. See Commonwealth v.
McNickles, supra (accepting distinction between reliability of general
method of testing DNA and reliability of particular application of that
test). See also Commonwealth v. Curnin, 409 Mass. 218, 222 n. 7
(1991) ("Future challenges should focus on the soundness ... of the
particular testing process ... and, if raised, on the proper implementation
of that process in the given case"). Otherwise, the traditional role of
judges as gatekeepers--protecting juries from evidence that had little
chance of being reliable--would be significantly and needlessly diminished.
See Commonwealth v. McNickles, supra at 850 ("judge's gatekeeper role
under Commonwealth v. Lanigan, supra, includes the obligation to
determine whether the testing at issue was conducted properly [and not just
whether the testing method is theoretically reliable]").
In sum, the procedure that we adopted in Lanigan includes ensuring
not only the reliability of the abstract theory and process underlying an
expert's opinion, but the particular application of that process. The
question of the reliability of ACE-V as applied to single latent impressions
is distinct from the question of the reliability of ACE-V as applied to
simultaneous impressions. The application of ACE-V to simultaneous
impressions must therefore be subjected to its own Daubert analysis.
We now proceed with that analysis.
i. General acceptance of applying ACE-V to simultaneous impressions.
As we have explained, if the Commonwealth establishes that the application
of ACE-V to simultaneous impressions is generally accepted in the
fingerprint examiner community, the evidence is properly admitted. The judge
found that "according to [Agent] Meagher, the use of ACE-V ... to make
individualization determinations from simultaneous impressions is generally
accepted in the community of qualified fingerprint examiners." Unlike his
testimony in the single impression context, however, Agent Meagher's
testimony is conclusory and unsupported by any evidence, let alone an
extensive multi-jurisdictional survey. The Commonwealth did not present
evidence that any domestic agency or jurisdiction--save for the now
disbanded Boston police fingerprint unit and the State police--relies on
simultaneous impressions for identification purposes. Likewise, with the
exception of Great Britain, there is no evidence in the record that any
foreign jurisdiction applies ACE-V to simultaneous impressions. With regard
to Great Britain, one of the Commonwealth's own experts, David Ashbaugh, a
noted fingerprint examiner, described its use as a "weird doctrine." [FN16]
He further explained that the application of ACE-V to simultaneous
impressions was one of several uses of ACE-V in England that "has resulted
in a hodgepodge of doctrine that is far removed from the truth." Ashbaugh
suggests that this application of ACE-V "require[s] a certain leap of faith"
and has "no supporting rationale."
Moreover, the Commonwealth did not present evidence that SWGFAST, IAI, or
any other fingerprint examination society accepts or recommends the
application of ACE-V to simultaneous impressions. At best, the record lacks
evidence of widespread acceptance of the application of ACE-V to
simultaneous impressions by the fingerprint examiner community. [FN17]
Because the Commonwealth has failed to carry its burden of proving general
acceptance, we turn to the four remaining Daubert factors.
ii. Testing. We judge this factor by inquiring whether this
application of ACE- V can be or has been tested. The judge's supplemental
order noted that no specific study or scientific article has validated the
application of ACE-V to simultaneous impressions. Agent Meagher testified
that he was "not aware of any studies that have been performed to validate
the application of ACE-V to simultaneous impressions to make an
identification." Neither is this court.
In her original order, the judge explained her concern that the subjectivity
involved in the ACE-V process means the process itself defies easy testing.
Such concerns are exacerbated when simultaneous impressions are involved.
There are presently no formalized standards governing an examiner's
determination that impressions have been simultaneously made, leaving that
determination largely to the judgment of the examiner. [FN18]
The judge explained, however, that most important to her determination of
the potential testability of latent fingerprint identification was that the
one-discrepancy rule makes even subjective evaluations testable because any
single discrepancy is enough to disprove a match. The one-discrepancy rule
is, unfortunately, less than it appears. Fingerprint examiners can and often
do ignore one or more discrepancies in a match or in simultaneous impression
matches. They do so by reasoning that the discrepancy was created by a
distortion or unnatural alteration of the impression.
The judge also noted that any particular result of the ACE-V process is
testable by virtue of the in-court adversary process. That is, an
independent examiner can challenge the conclusion of the Commonwealth's
expert based on the specific criteria articulated by that expert used to
declare a match. See United States v. Havvard, 260 F.3d 597, 601 (7th
Cir.2001). However, adversary testing is not what the Supreme Court meant
when it discussed testing as an admissibility factor. See Commonwealth v.
Curnin, 409 Mass. 218, 222 n. 7 (1991), citing United States v. Two
Bulls, 918 F.2d 56, 61 (8th Cir.1990) (until questions of reliability
are determined by judge, "jury should not be given the evidence and allowed
to determine the validity and soundness of the process because evidence of
this character has too great a potential for affecting a jury's judgment").
Concluding that a test is reliable merely because testimony based on its
results can be cross-examined in front of a jury puts the cart before the
horse. In the absence of any real testing of ACE-V, at least as applied to
simultaneous impressions, we conclude that this factor favors exclusion.
iii. Peer review and publication. In her original order regarding
latent fingerprint identification, the judge correctly concluded that the
verification process of ACE-V was seriously flawed and did not constitute
peer review under Daubert. We share the judge's consternation with
the current verification process. Nevertheless, she found this factor to
favor admission, though only slightly, because "limited" review exists on
the reliability of ACE-V in forensic publications and because the SWGFAST
guidelines outlining ACE-V underwent peer review. With respect to its
application to simultaneous impressions, however, the Commonwealth has not
introduced evidence of any scientific-technical publication discussing its
reliability. Further, the record contains no evidence that SWGFAST, IAI, or
any other forensic identification society has promulgated peer-reviewed
standards relating to the application of ACE-V to simultaneous impressions.
This factor thus also favors exclusion.
iv. Known or potential error rate. We do not quarrel with the motion
judge's conclusion that the ACE-V method of fingerprint individualization
has a low error rate when used to match a latent fingerprint to a fully
inked print of the same finger. We agree that the concern is solely with the
rate of false positives. See United States v. Mitchell, 365 F.3d 215,
239 (3d Cir.2004) ( "rate of false negatives is immaterial to the Daubert
admissibility of latent fingerprint identification offered to prove positive
identification"). The FBI survey and its study of matches between 50,000
latent and full prints, although not without flaws, provide adequate support
for the judge's conclusion.
However, the Commonwealth has produced no evidence establishing a similarly
low error rate when ACE-V is applied to simultaneous impressions. Neither
the FBI survey nor the study involved simultaneous impressions. The record
contains no studies regarding the ability of a fingerprint examiner to use
simultaneous impressions to effectuate a positive identification and we have
not been made aware of any. [FN19] We recognize, as the motion judge
explained, that "the absence of a specific study ... does not preclude a
finding of admissibility." Nonetheless, the absence of any experimentation
here, without any other evidence of a low error rate, does not help the
Commonwealth. See Canavan's Case, 432 Mass. 304, 315 (2000) ("We
cannot conclude that the ... mere assertion that a methodology is reliable
is sufficient to pass the Lanigan test absent any other evidence
showing its reliability"). In the absence of evidence pertaining to the
error rate, we conclude that this factor, at best, does not affect our
ultimate decision concerning admissibility.
v. Standards controlling the technique. The judge concluded that
there was no scientific basis for requiring a minimum number of matching
points for an individualization. We agree. We are not concerned that this
leaves the "evaluation" stage of ACE-V open to the subjective determinations
of a fingerprint examiner. A wide variety of experts whose testimony is
generally admitted at trial use their education, training, and knowledge to
opine on matters about which there does not exist an objective standard. In
such instances, "the expert is operating within a vocational framework that
may have numerous objective components, but the expert's ultimate opining is
likely to depend in some measure on experiential factors that transcend
precise measurement and quantification." United States v. Llera Plaza,
188 F.Supp.2d 549, 571 (E.D.Pa.2002).
The degree of subjectivity in a fingerprint examiner's ultimate conclusion
that a latent print matches a fully inked print seems "of a substantially
more restricted compass" than, say, "an electrical engineer's testimony that
fire in a clothes [dryer] was caused by a thermostat malfunction." United
States v. Llera Plaza, supra at 570, citing Maryland Cas. Co. v.
Therm-O-Disc, 137 F.3d 780 (4th Cir.1998). An examiner follows an
objective method laid out in guidelines and standards adopted by SWGFAST.
Additionally, the one-discrepancy rule (while not perfect) provides an
objective benchmark for examiners. As the motion judge explained, whether a
discrepancy is explainable or unexplainable depends on six factors, most of
which are objective. [FN20] The manner in which an examiner's opinion is
guided by objective factors makes this process acceptable.
It appears, however, that a fingerprint examiner's opinion regarding the
individualization of simultaneous impressions is less bounded by objective
factors. Most importantly, although Agent Meagher testified that the ACE-V
process does not vary when applied to simultaneous impressions, the record
does not establish that either SWGFAST or the IAI has adopted formal
guidelines regarding the individualization of simultaneous impressions.
There is no standard procedure in place to which an examiner must conform
The judge also found that the "rigorous qualifications and training
requirements for FBI fingerprint examiners ... help control operation of the
ACE-V methodology." Common sense dictates that higher academic and
professional standards increase the chances that an expert will properly
follow the objective criteria and properly employ his subjective
consideration to the facts at hand. This consideration, however, is
irrelevant here, where the Commonwealth does not propose to call an FBI
examiner as its expert. The Commonwealth's proposed expert is a State
trooper, and the original fingerprint examiner was a member of the now
disbanded Boston police fingerprint unit. No showing has been made as to the
qualifications required for employment and retention at either of these law
enforcement agencies. We shall not simply assume that the requirements or
expert's qualifications are as substantial as those of the FBI or its
fingerprint examiners. See United States v. Llera Plaza, supra at 566
("Whatever may be the case for other law enforcement agencies, the standards
prescribed for qualification as an FBI fingerprint examiner are clear....
The uniformity and rigor of these FBI requirements provide substantial
assurance that, with respect to certified FBI fingerprint examiners,
properly controlling qualification standards are in place and are in
Moreover, the Commonwealth does not contend that FBI examiners have
confirmed the result of the State examination. To the contrary, in response
to a request for confirmation, the FBI issued a report indicating that the
simultaneous impressions at issue here were not "of value," apparently
concluding that a positive identification could not properly be made using
In these circumstances, we conclude that the lack of accepted explicit
universal standards controlling the application of ACE-V to simultaneous
impressions counsels against admission of this evidence.
3. Conclusion. Evidence of fingerprint individualization determined
by application of the ACE-V method to single latent fingerprint impressions
meets the Lanigan-Daubert reliability standard. The general
acceptance of this application of ACE-V by the fingerprint examiner
community leads us to this conclusion. However, the application of ACE-V to
simultaneous impressions cannot rely on the more usual application of ACE-V
for its admissibility, but must be independently tested against the
Lanigan-Daubert standard. On the record before the motion judge, the
Commonwealth has not yet established that the application of the ACE-V
method to simultaneous impressions is generally accepted by the fingerprint
examiner community or that a review of the other Daubert factors
favors admission of evidence based on such an application. Consequently, we
vacate the judge's supplemental order and remand the case for further
proceedings consistent with this opinion.
||FN1. Patterson was also
convicted of armed robbery and two counts of possession of a dangerous
||FN2. ACE-V stands for
"analysis, comparison, evaluation, and verification." It is the
standard methodology used in the United States and many other parts of
the world. See infra at part 1.b.
||FN3. We acknowledge
amicus briefs filed by Mark Acree, Robert Bradley, Simon
||A. Cole, David L.
Faigman, Stephen E. Fienberg, Paul C. Giannelli, Lyn Haber, Ralph N.
Haber, Donald Kennedy, Jennifer L. Mnookin, Joelle Anne Moreno, Jane
C. Moriarty, D. Michael Risinger, John R. Vokey, Sandy L. Zabell, and
The New England Innocence Project; National Association of Criminal
Defense Lawyers, Massachusetts Association of Criminal Defense
Lawyers, and the Committee for Public Counsel Services; the district
attorneys for the Berkshire, Cape and Islands, Norfolk, northern,
northwestern, and Plymouth districts; and the Secretary of Public
||FN4. Although the term
ACE-V was not coined until at least 1995, when the Scientific Working
Group on Friction Ridge Analysis, Study, and Technology (SWGFAST)
documented standards for comparing prints, the steps performed under
ACE-V are essentially the same steps performed by fingerprint experts
over the last hundred years.
||FN5. Similarly, Great
Britain no longer requires a specific number of Galton points for an
examiner to declare a match. For many years, England had required
sixteen Galton point matches to make a positive identification. See
United States v. Llera Plaza, 188 F.Supp.2d 549, 555, 567
(E.D.Pa.2002). In 1999, however, the British Court of Appeal (Criminal
Division) concluded that fewer than sixteen matching points were
needed. See id. at 566, quoting
||Regina v. Buckley,
143 SJ LB 159 (1999) ("If there are fewer than eight similar ridge
characteristics, it is highly unlikely that a judge will exercise his
discretion to admit such evidence.... If there are eight or more
similar ridge characteristics, a judge may or may not exercise his or
her discretion in favour of admitting the evidence"). According to the
Llera Plaza court, the British Court of Appeal explained that a
national consensus had developed "that considerably fewer than 16
ridge characteristics would establish a match beyond any doubt."
Id. at 567. Additionally, the Court of Appeal had forecast that
any type of numerical requirement might be done away with in the near
future. The British court cited a 1988 study, commissioned by the Home
Office and the Association of Chief Police Officers (ACPO), which
concluded "that there was no scientific, logical or statistical basis
for the retention of any numerical standard." Id. at 567-568.
In 1994, based partially on this study, the ACPO issued a report
recommending a completely nonnumerical approach to fingerprint
identification. After a fingerprint evidence project board studied the
issue in anticipation of a new nationwide system, it recommended the
change be made. See id. at 568. In 2001, two years after the
Buckley decision, the new nonnumerical system was adopted. The
Buckley decision indicates that the nationwide adoption of this
plan obviates a bright-line judicial requirement that a positive
identification use a specific number of similarities. See United
States v. Llera Plaza, supra, quoting Regina v.
("If and when [the project board plan is adopted], it may be that
fingerprint experts will be able to give their opinions unfettered by
any arbitrary numerical thresholds").
||FN6. Because the Boston
police fingerprint unit's latent print section has been suspended from
operation, the Commonwealth proposed to offer almost the identical
evidence but this time through Detective Lieutenant Kenneth Martin of
the State police.
||FN7. The Commonwealth
initially argued that the Daubert-Lanigan hearing should
be limited to determining the reliability of the application of ACE-V
to simultaneous impressions. The Commonwealth asserted that the
general reliability of latent fingerprint identification and ACE-V
could be established without recourse to a hearing. The Commonwealth
altered that position in early 2004 after it came to light that a man
had been wrongfully convicted of armed assault with intent to murder
based largely on an erroneous "match" of his fingerprint to a latent
print at the crime scene. See Commonwealth v. Cowans, 52
Mass.App.Ct. 811 (2001); Man Freed in 1997 Shooting of Officer, Boston
Globe, Jan. 24, 2004, at A1.
||FN8. The judge used the
terms "fingerprint community," "community of
and "forensic identification community" interchangeably. Other courts
have identified the relevant community in some form of one or more of
such terms and we perceive no distinction between these
characterizations of the group at issue. See United States v.
Mitchell, 365 F.3d 215, 236, 241 (3d Cir.2004) ("fingerprint
examiner community" and "forensic identification community");
United States v. Llera Plaza, 188 F.Supp.2d 549, 551-552, 563
(E.D.Pa.2002) ("fingerprint examiner community" and "fingerprint
community"); United States v. Sullivan, 246 F.Supp.2d 700, 703
(E.D.Ky.2003) ("fingerprint analysis and forensic science fields").
||FN9. The Scientific
Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST)
was established in 1995. Sponsored by the FBI laboratory, the working
group includes forty fingerprint experts from various Federal, State,
and local agencies throughout North America. Its mission is to
formalize and document guidelines and standards that are generally
accepted and applied by fingerprint examiners. Its committees develop
guidelines and standards, which are subject to critique and debate by
all SWGFAST members and, after publication in the Journal of Forensic
Identification and presentation at the International Association for
Identification, by all members of the fingerprint examiner community.
After modification of its guidelines based on this review, SWGFAST
republishes them as formal standards. SWGFAST has adopted
||ACE-V as the standard by
which to examine latent fingerprints.
||FN10. To be admissible,
testimony must be relevant as well as reliable. The relevance of
identification evidence such as fingerprint analysis is clear and
unquestioned by the parties. We thus concentrate on the reliability
prong. Accord United States v. Mitchell, 365 F.3d 215, 235 (3d
Cir.2003) ("the fit inquiry in the case of fingerprint identification
is not a significant factor, because identity evidence is the
archetypal relevant evidence in criminal cases").
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) (Daubert
), itself spoke in terms of scientific knowledge, the Supreme Court,
in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 145, 157
(1999), recognized that the Daubert standard was equally
applicable to expert testimony based on technical or other specialized
knowledge. We adopted this same standard in Canavan's Case, 432
Mass. 304, 313-314 (2000).
||FN12. The fingerprint
examiner community consists primarily of fingerprint examiners from
local, State, Federal, and foreign law enforcement agencies as well as
independent or retired examiners. Some of these examiners, such as
David Ashbaugh, may spend a significant portion of their time writing,
||lecturing, and teaching.
See, e.g., United States v. Crisp, 324 F.3d 261, 268-269 (4th
Cir.), cert. denied, 540 U.S. 888 (2003) (indicating that fingerprint
examiners themselves are expert community that suffices for Daubert
purposes). Also included are scientists from other fields, such as Dr.
Babler, who study the underlying premises of fingerprint examination.
The fingerprint community has formed a number of associations and
professional groups better to share information and experience, and
better to control the standards of their profession. In addition to
SWGFAST, many examiners belong to the International Association for
Identification (IAI). Founded in 1915, IAI has over 5,000 members. The
IAI has established several fingerprint examiner certification
programs, publishes the peer-reviewed Journal of Forensic
Identification, and awards grants to promote the advancement of
forensic science as a profession.
||FN13. Although the
Commonwealth suggests that Commonwealth v. LeClaire, 28
Mass.App.Ct. 932 (1990), accepted evidence of simultaneous
impressions, that case is clearly distinguishable. In that case, one
of the simultaneous impressions, the thumbprint, was clear and could,
on its own, be matched to the defendant. Id. at 933-934.
||FN14. Similarly, our
second suggestion in Commonwealth v. Gaynor, 443
||Mass. 245, 266, 267
(2005), that attacks on the reliability of the specific testing at
issue should go to the weight of the evidence followed our analysis of
a partially distinct application of the recommended DNA test used by a
DNA processor (use of a smaller sample size than set by the
manufacturer's test kit) and findings that "Cellmark had conducted
validation studies that supported the reliability of testing based on
amounts smaller than recommended by the manufacturers" and that the
distinct application "has done all that is reasonably possible to
eliminate [the] potential" for distortions.
||FN15. We cannot surmise
the limiting principle by which the Commonwealth's argument would lose
force in a case where a fingerprint examiner applied ACE-V to
impressions that he believed were left simultaneously and represented
two fingers on each hand and two toes on each foot.
||FN16. Although Ashbaugh
did not testify at the hearing below, the Commonwealth offered his
1999 testimony at the Daubert hearing in the Mitchell
case. See United States v. Mitchell, 365 F.3d 215 (3d
||FN17. Although in the
course of this appeal we have been made aware of an article on
simultaneous impressions that allegedly bolsters Meagher's
||assertion, see Ostrowski,
Simultaneous Impressions: Revisiting the Controversy, The Detail (Nov.
05, 2001), an article not in evidence before the judge, the article
merely confirms our view that application of the ACE-V methodology is
not yet generally accepted in the fingerprint examiner community. In
contrast to the FBI survey regarding fingerprint identification
generally, the article explains that the author conducted a survey on
simultaneous impressions that received only eighteen responses from
local, State, and Federal latent print examiners in thirteen States
and the District of Columbia. In comparison to the one hundred per
cent acceptance of ACE-V methodology in the FBI survey, Ostrowski's
survey makes clear that just over fifty per cent of those surveyed
would use two or more simultaneous impressions that cannot be
identified on their own as the basis for a positive identification.
Approximately forty-four per cent of those asked reported requiring at
least one of the latent prints to be individually matched in cases of
simultaneous impressions and one responding agency requires that each
print impression must stand alone. Particularly in light of the
extremely small sample in Ostrowski's survey, this hardly amounts to
general acceptance in the relevant community.
||FN18. While David
Ashbaugh has proposed several "objective" criteria to use to determine
the simultaneity of latent impressions, see Ashbaugh,
Friction Ridge Analysis 134-135 (1999), it is unclear whether the
determination of simultaneity in this case was made using the test
||FN19. The only
information provided to us on this narrow issue comes from a
postargument letter, which describes a recent National Institute of
Science and Technology study that recommends computer identifications
only be made by independent individualization of separate fingerprints
of simultaneous impressions. While not the basis for our decision,
this information adds to our concern that the application of ACE-V in
the case at bar may be prone to far more error than the normal use of
||FN20. These factors are:
the condition of the actual friction ridges, the deposition pressure
(how hard the finger was placed on the object), the lateral pressure
(if the finger was moved after being placed on the object), the
texture of the substrate being touched, the method used to process the
fingerprint, and the method used to preserve the image.
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