How many times has it happened? The State needs to prove up a prior judgment for jurisdictional, enhancement, or punishment purposes and just lists any (or every) investigator in the DA’s office or sheriff’s office as an expert to prove up the fingerprints. We assume the judgment is coming in, well, because it always has, so we just stipulate thinking it will somehow earn our client points with the jury for accepting responsibility. We even point out to the jury how this time is different because in the past our client has accepted responsibility. The judgment(s) come in and our client often gets slammed anyway.
What if we all rethink our approach? What if, instead of being on the defensive, we go on the offensive? Judges are the gatekeepers, it is true. But there is nothing for judges to keep out unless we are the ones who make the challenge. By not making the challenge, we are ultimately responsible for allowing junk science to continue being peddled as actual science to juries across the state. Fingerprint comparison testimony, a.k.a. friction ridge analysis, crumbles under the challenge; it is junk science.
First, it’s worth mentioning that merely asking for a 705 hearing before the State’s fingerprint person testifies will produce some interesting results. Prosecutors will likely be shocked, merely by virtue of the fact that they haven’t had this come up before. You, on the other hand, might be shocked to learn that the prosecutors have little or no idea how to question a witness for a 705 hearing. And everyone might be shocked at how little the purported “expert” actually knows.
The technique used to examine prints made by friction ridge skin is described by the acronym ACE-V, which stands for Analysis, Comparison, Evaluation, and Verification. The technique is highly subjective at best (and, indeed, is subjective by definition), but it has been around for over 50 years. Consider, for a moment, what fingerprint identification is: The “expert” will compare a known print, your client’s, to an unknown print. The “expert” then selects what features of the known print he will use to compare the known print to the unknown print. Whether the features the “expert” selected match or not, is entirely up the “expert.”
Additionally, every purported fingerprint expert, it seems, has their own set of criteria by which they evaluate fingerprints. Some require just five points of identification, some require eight, and some even twelve to call something a match. It is for these very reasons, among others, that friction ridge analysis has also been heavily scrutinized for a number of years. I have had occasion where the fingerprint “expert” first examines the print and finds, say, six matching characteristics, and then after a second look finds ten matches. I have never seen it go the opposite way . . .
In 2009, the National Research Council published Strengthening Forensic Science in the United States: A Path Forward (available for download at https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf). Among other forensic sciences, the publication contains an enlightening, in-depth scathing analysis about friction ridge analysis. In sum, the ACE-V method is not scientific for a number of reasons that are ripe for an expert qualification hearing. This publication is also easily accessible and capable of being judicially noticed.
Then, in 2016, the President’s Council of Advisors on Science and Technology published a report on the forensic sciences (also available for download at https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf). The forecast for fingerprints did not, suffice it to say, improve:
PCAST finds that latent fingerprint analysis is a foundationally valid subjective methodology—albeit with a false positive rate that is substantial and is likely to be higher than expected by many jurors based on longstanding claims about the infallibility of fingerprint analysis. The false-positive rate could be as high as 1 error in 306 cases based on the FBI study and 1 error in 18 cases based on a study by another crime laboratory.
And PCAST went on to thoroughly thrash fingerprint analysis. Yikes. Be sure to ask the Court to take judicial notice of the PCAST report, too.
Consider also that fingerprint identification and comparison can be performed via fully automated systems like AFIS (Automated Fingerprint Identification System). Why, ask yourself, would the State not use a fully automated system where one exists (that might well escape the usual trappings of a 705 hearing) and use an entirely subjective process instead? Interesting . . .
Most recently, the American Association for the Advancement of Science (AAAS) released a new report concluding that more research into the validity of fingerprint comparisons is needed to support any scientific basis for legal certainty. While this report focused mainly on latent print comparison, the same criticisms can also apply to comparing an old fingerprint in a judgment to a 10-print card.
Importantly, all these reports make clear that fingerprint experts should not, and indeed cannot, testify in terms of absolute certainties or absolute matches. This only makes sense after all. DNA reports don’t even speak in terms of absolute matches and certainties.
It is true that the State can prove up a prior judgment and connect an accused to a prior judgment in other ways than fingerprint comparison. Experience teaches that there is a way to stop that from happening, or at least from happening effectively, too. When the State’s fingerprint expert takes the accused’s prints during the course of trial for comparison, be sure you are there, too. Be sure to instruct the accused not to provide any information, including name, date of birth, social security number, etc. Those questions are always asked and answers are included on the 10-print card used for comparison. Admissions as to those identifying characteristics can provide the State with alternate ways of connecting the prior judgment. Don’t successfully fight the “science” and its application only to have the admission(s) torpedo your success in the end.
Let’s all make it a point to challenge fingerprint comparison evidence. It won’t happen overnight, but if enough of us do it correctly and consistently, then the law might just begin to catch up with the science.