Opinion
NO. 3:10-cr-260 (12)
02-21-2012
UNITED STATES OF AMERICA v. FATAH HAJI HASHI (12)
JOHN G. OLIVA, 10566 Attorney at Law Nashville TN 37208 CJA Attorney for Fatah Hashi
JUDGE HAYNES
DEFENDANT FATAH HAJI HASHI'S MOTION IN LIMINE TO EXCLUDE
FINGERPRINT EVIDENCE AND SUPPORTING MEMORANDUM
Comes now Fatah Haji Hashi, by and through court appointed counsel pursuant to the Due Process Clause of the 5th Amendment to the United States Constitution, and moves this Honorable Court to exclude from the trial of this case any expert testimony of fingerprint evidence proffered to identify Defendant Fatah Haji Hashi. In support of this Motion, counsel for Defendant Hashi submits the following:
STATEMENT OF FACTS
Defendant Hashi anticipates that during trial, the government intends to introduce identification evidence that Defendant Fatah Hashi was one of the four passengers in a stopped vehicle, one of whom was Jane Doe Two. The government alleges in Paragraph 20 of the Second Superseding Indictment that defendants Hassan Dahir, Fatah Hashi, and Yassin Yusuf "drove Jane Doe Two from the Minneapolis, Minnesota, metropolitan area to Rochester, Minnesota, for the purpose of charging persons money to engage in sex with Jane Doe Two." (Docket Entry no. 591). (An uncharged minor was identified as the driver.)
Further, Defendant Hashi anticipates that the government intends to introduce testimony that on May 8, 2007, Sergeant Pingel of the Rochester Police Department stopped a gray Plymouth exiting a Kwik Trip convenience store in Rochester, Minnesota. Rochester Police Officer Fix arrived at the scene with a device called "IBIS." "IBIS" is a acronym for Integrated Biometric Identification System - a mobile identification system. The product is manufactured by L-1 Identity Solutions out of Bloomington, Minnesota. Police use the mobile handheld unit to take and process fingerprints at the scene of a stop and employs wireless technology to compare the print(s) with previously stored fingerprints in ABIS data bases. In essence, the IBIS functioned as a fingerprint examiner - taking a print, comparing the print to other prints, and rendering a conclusion, or "expert opinion." See www.l1id.com/files/247- IBIS rev0908 final.pdf last visited 2/21/2012.
LAW AND DISCUSSION
The government must establish the scientific validity of the fingerprint identification evidence that it seeks to admit at Defendant Hashi's upcoming trial. Fundamental to admissibility of identification evidence based upon scientific or special knowledge is that it must satisfy the standards for trustworthiness. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 2795, 125 L.Ed. 2d 469 (1993). Federal Rule of Evidence 702 (Testimony by Expert Witnesses) grants the district court the discretionary authority to determine reliability as well as relevancy of the proffered scientific or technical testimony in light of the particular facts and circumstances of the particular case. Kumho Tire Company, Ltd v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). The Rule "embodies three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability, and fit." Elcock v. Kmart Corp., 233 F. 3d 734 (3d Cir. 2000). See also, United States v. Langan, 263 F.3d 613, 621 (6th Cir. 2001) holding that several factors should be considered in reviewing an expert's methodology regarding the reliability of eyewitness testimony. These factors include "testing, peer review, publication, error rates, the existence and maintenance of standards controlling the technique's operation, and general acceptance in the relevant scientific community."
In Daubert, the Supreme Court held that judges are the gatekeepers with respect to the admissibility of expert testimony. Avery Dennison Corp. v. Four Pillars Enterprise Co., 45 Fed. Appx. 479, 483 (6th Cir. 2002). The Court held that a judge must assess the reasoning and methodology underlying the expert opinion testimony to determine whether the opinion is scientifically valid, i.e., whether it rests on "good grounds" based on what is known (reliability) and can properly be applied to the factual issues in dispute (relevance) before admitting the opinion. See, Daubert, 509 U.S. at 590-93. "The relevance inquiry ensures 'that there is a fit between the testimony and the issue to be resolved at trial.' Rondigo, L.L.C. v. Casco Twp., Michigan, 537 F.Supp.2d 891, 892 (E.D.Mich. 2008) (quoting Greenwell v. Boatwright, 184 F.3d 492, 496 (6th Cir.1999)). The "reliability step focuses on the methodology and principles that form the basis for the testimony." Id. at 893 (citing Boatwright, 184 F.3d at 497).
In Daubert, the Supreme Court suggested a non-exhaustive list of factors to be considered in determining the reliability component of scientific evidence, including whether the technique or theory has been or can be tested and whether it has been subjected to peer review. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 593-94.
The question in this case is whether a scientific basis exists for fingerprint identification by IBIS. There are two fundamental premises that underlie such an identification: First, that two or more people cannot possibly share this number of basic ridge characteristics in common; and second, that the IBIS devise can reliably assert absolute identity from a print at the scene.
There has been no testing of either of the two fundamental premises that underlie the proffered fingerprint identification. There is no known error rate for fingerprint examinations. The high number of misidentifications that have occurred on latent print examiner proficiency exams is alarmingly. This danger is occasioned by the lack of uniform objective standards to guide fingerprint comparisons. There is disagreement among fingerprint examiners as to how many points of comparison are necessary to make an identification, and many examiners now take the position that there should be no objective standard at all. Committee on Identifying the Needs of Forensic Science Community at the National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward (2009) (calls into question the validity of fingerprint testimony); John Berry, The History and Development of Fingerprinting in Advances in Fingerprint Technology (Henry C. Lee & R. E. Gaensslen eds., 1994); An Analysis of Standards in Fingerprint Identification, F.B.I. Law Enforcement Bulletin, June 1972; Quantitative-Qualitative Friction Ridge Analysis: An Introduction to Basic and Advanced Ridgeology, (1999) David Ashbaugh.
The government has the burden to demonstrate the indicia of scientific reliability set forth by the Supreme Court in Daubert for the IBIS device. The evidence proponent—here, the Government—has the burden to establish its admissibility by a preponderance of the evidence. Defendant Hashi contends that Sergeant Pingel and Officer Fix are not qualified to explain the intricacies, methodologies or underlying principles of the IBIS device. They were operators. Moreover, the government must establish the reliability of the mobile identification system and the qualifications of the operators. The requirements are analogous to the standard for admissibility of blood alcohol results in a prosecution for drunk driving.
For all the foregoing reasons, the government's fingerprint identification evidence should be precluded.
Respectfully submitted,
_________________
JOHN G. OLIVA, 10566
Attorney at Law
Nashville TN 37208
CJA Attorney for Fatah Hashi
CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing pleading has been provided to
Van Vincent
Assistant US Attorney
961-A, 110 Ninth Avenue North
Nashville TN 37203
Blanche Cook
Assistant US Attorney
961-A, 110 Ninth Avenue North
Nashville TN 37203
_________________
JOHN G. OLIVA