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 The .pdf file that was circulating has been archived on CLPEX.com here: http://www.clpex.com/Information/US-v-Keita-Motion-To-Exclude-FP.pdf
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.
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
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.
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
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."'
"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," 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.
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.  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.
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
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
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.  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.
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.
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.
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
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.
"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"...
relevant scientific community recognizes that the claim of a
fingerprint 'match' is meaningless in the absence of probability
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"...
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."...
"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.
Jason D. Tulley #482381
Counsel for Mr. Keita
 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).
 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 . . . .").
 See infra Part II(B)(2).
 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 . . . . ").
 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).
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
Feel free to pass The Detail along to other examiners for Fair Use. This is a not-for-profit newsletter FOR friction ridge examiners, BY friction ridge examiners. The website is open for all to visit!
If you have not yet signed up to receive the Weekly Detail in YOUR e-mail inbox, go ahead and join the list now so you don't miss out! (To join this free e-mail newsletter, enter your name and e-mail address on the following page: http://www.clpex.com/Subscribe.htm You will be sent a Confirmation e-mail... just click on the link in that e-mail, or paste it into an Internet Explorer address bar, and you are signed up!) If you have problems receiving the Detail from a work e-mail address, there have been past issues with department e-mail filters considering the Detail as potential unsolicited e-mail. Try subscribing from a home e-mail address or contact your IT department to "whitelist" the Weekly Detail. Members may unsubscribe at any time. If you have difficulties with the sign-up process or have been inadvertently removed from the list, e-mail me personally at email@example.com and I will try to work things out.
Until next Monday morning, don't work too hard or too little.
Have a GREAT week!