Opinion
IP 01-081-CR-01 T/F
June 26, 2002
ENTRY ON DEFENDANT'S MOTION TO EXCLUDE EXPERT TESTIMONY
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
After having reviewed the parties' motions and heard testimony and argument on this case, this court finds that the fingerprint evidence and the Government's experts on fingerprint evidence are admissible. The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). Rule 702 provides that experts may testify if they have "specialized knowledge," are qualified based on "knowledge, skill, experience, training, or education," and the testimony "will assist the trier or fact to understand evidence or to determine a fact in issue." Fed.R.Evid. 702.
This Entry incorporates and expands on any conclusions given at the February 19, 2002, hearing.
Under Federal Rule of Evidence 702 and the principles of Daubert, a district court judge is to act as a "gatekeeper" for expert testimony, only admitting such testimony after receiving satisfactory evidence of its reliability. 509 U.S. at 589. The trial court has considerable latitude in determining whether Daubert's factors have been satisfied and the expert testimony is admissible. Bourelle v. Crown Equip. Corp., 220 F.3d 522, 528 (7th Cir. 2000). Rule 702 was amended, effective December 1, 2000, and now allows the district court, after assessing the expert's qualifications, to admit expert testimony if "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed.R.Evid. 702. That amendment was designed to "affirm the trial court's role as gatekeeper and provide some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony." Fed.R.Evid. 702 advisory committee's note.
Although the amendment significantly altered the language of the rule, it "merely reflects the traditional Daubert inquiry." First Tenn. Bank Nat'l Ass'n v. Barreto, 268 F.2d 319, 331 (6th Cir. 2001). Under Daubert, the court is to determine (1) whether the expert will testify to valid scientific or other expert knowledge based on sound methodology and (2) whether the testimony will assist the trier of fact with a fact at issue. 509 U.S. at 592.
Daubert provided a non-exclusive list of factors that courts may examine to determine whether testimony is scientifically valid. Among those is (1) whether the expert's technique or theory can be or has been tested, (2) whether the theory has been subject to peer review and publication, (3) the known or potential error rate, (4) the existence and maintenance of standards and controls, and (5) whether the theory is generally accepted in the community. Although Daubert arose out of scientific evidence, the Supreme Court (and now Federal Rule 702) has established that expert testimony that is more technical than scientific is governed by the same criteria as the admission of scientific expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999).
I. Fingerprint Evidence Fingerprint evidence has been allowed under Rule 702 in this district and circuit.
See United States v. Havvard, 117 F. Supp.2d 848 (S.D.Ind. 2000), aff'd 260 F.2d 597 (7th Cir. 2001). However, Merritt has asked this court to reconsider those rulings in light of Judge Pollack's opinion in United States v. Llera Plaza I, 179 F. Supp.2d 492 (E.D.Pa. 2002). Although this court agrees with Judge Pollack that fingerprints are unique and permanent, for the following reasons, this court find the reasoning in Llera Plaza I unpersuasive. Judge Pollack evaluated fingerprint analysis using the five factors set out in Daubert and concluded that experts would be allowed to testify to the A and C stages of the ACE-V procedure, including a description of the fingerprints at issue in the case and how they were obtained, placing the fingerprints before the jury, and pointing out the similarities and differences between the latent prints and the rolled prints. However, Judge Pollack ruled that experts would not be allowed to present evaluation testimony, meaning an opinion that the latent print and the rolled print belonged to the same individual would not be allowed.
On reconsideration, Judge Pollack vacated this decision and determined that fingerprint evidence was sufficiently reliable. 188 F. Supp.2d 549, 576 (E.D.Pa. 2002) ("Llera Plaza II"). This reconsideration does not alter Merritt's arguments which are based on Pollack's initial reasoning.
As to first factor, testing, Pollack holds, as Merritt contends this court should, that although fingerprint analysis has been used for over 100 years in adversarial proceedings that is insufficient for Daubert purposes. In support of this proposition, the court quotes a passage from Daubert detailing the basis of scientific testing. Although this quote is accurate, it overlooks the fact that the Daubert case focused on scientific evidence, for which scientific testing was eminently appropriate. Daubert has since been extended to cover all expert testimony. Kumho, 526 U.S. at 147. Fingerprint analysis is not a strict science, but rather as Llera Plaza I notes, a technical skill. 179 F. Supp.2d at 516.
In Llera Plaza II, Pollack reiterates this conclusion. 188 F. Supp.2d at 564.
Adversarial testing is appropriate for fingerprint analysis and indeed serves at least one of the purposes of the testing discussed in Daubert, testing to see if the theory can be falsified. Fingerprint analysis has undergone over 100 years of adversarial testing in which many people have attempted to poke holes in the theory but have been unsuccessful.
Llera Plaza I further takes issue with a conclusion from Judge Hamilton's Havvard opinion, that the testing requirement in individual cases is satisfied by the V portion of the ACE-V process, the independent verification of the first examiner's findings. Merritt contends that the second examiner is using the same theory as the first examiner, and therefore, not really testing the theory of fingerprints. He also contends that one extra test is insufficient to reliably confirm the results of the fingerprint analysis. As to the first complaint, if it is acknowledged that fingerprints are unique and permanent, seemingly not a question in this case or Llera Plaza I, then the theory of fingerprints, that everyone has one which can be compared with unknown prints seems to be sound and not in need of testing in the way described by Llera Park I. And in fact, even the Llera Park I opinion allows experts to testify to the common characteristics between the latent and rolled fingerprints. Furthermore, although one extra verification may not confirm a print in every occasion, the Defendant is free to find an expert to contradict the Government's experts and "[a] single unexplained discrepancy between a latent print and a known exemplar is enough to falsify an opinion of identification." Havvard, 117 F. Supp.2d at 854.
Merritt also takes issue with the peer review and publication requirement. He contends that although there are numerous writings on fingerprints, none of them are peer reviewed in the scientific sense, meaning submitted to the scrutiny of the scientific community. This court again notes that Daubert applies to all expert testimony. Although fingerprint analysis has not been submitted to publication and peer review in the scientific sense, this court would conclude that is because it is not a science. Rather there are numerous articles discussing fingerprinting and the potential problems with fingerprinting, see, e.g., Possession of Truth, 46 J. Forensic Identifications 521, 524 (1996), and the fingerprint process is evaluated by peers during the verification stage of the process. This is sufficient to satisfy this Daubert factor.
In addition as noted by Judge Pollack in Llera Plaza II and the United States Supreme Court, "the test of reliability is `flexible,' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case." 188 F. Supp.2d at 562. This implies a flexible application of this factor to not focus solely on scientific publications.
Merritt also notes Llera Plaza I's conclusion that there is no scientific community in the fingerprint field because fingerprint experts are merely skilled professionals with no advanced academic training. This takes a narrow view of experts which is unsupported by case law or common sense. There are many areas of expertise for which advanced schooling is unnecessary, for example a car mechanic. These areas of expertise are no less valid because the people that practice them learned their skills through apprenticeships rather than in universities. The Advisory Committee Notes to the Federal Rule 702 even appear to contemplate this when they state that "an expert may be qualified on the basis of experience."
In Llera Plaza II, Pollack notes that an F.B.I. fingerprint examiner must have a bachelor's degree and successfully complete a two-year in-house training program. 188 F. Supp.2d at 555 n. 2. However, the fingerprint examiners in this case were not F.B.I. agents.
And which has since been recanted by Judge Pollack. 188 F. Supp.2d at 563-64.
Next, Merritt contests the rate of error in fingerprint analysis. The Llera Plaza I opinion breaks the error into two parts: methodology error and practitioner error. That court agrees with Judge Hamilton's opinion in Havvard that the methodology error rate is zero; however, relying on a published study and the results of another study, the Llera Plaza I court concludes that the practitioner error rate is potentially high. Although clearly each fingerprint examiner is human and subject to error, this court does not see how fingerprint examination is more subject to error than other areas of expertise including arson investigation and accident causation. And in the case of fingerprint analysis, the examiner's opinion is verified and the other side is able to present other experts to challenge the opinion.
In Llera Plaza I, Judge Pollack mentions a ten-print card and latent fingerprints that the government sent several state agencies to determine whether the card matched the latent prints. Pollack noted that "[n]ine of thirty-four responding agencies did not make an identification in the first instance. . . ." In Llera Plaza II, the parties stipulated that the correct figures were five of thirty-nine responding agencies did not identify any latent print. 188 F. Supp.2d at 559.
This conclusion is supported by the test results presented in a three-day hearing held before Llera Plaza II was decided. In the 447 proficiency tests given by the F.B.I. to their fingerprint examiners between 1995 and 2001, there was a proficiency error rate of less than 1%. 188 F. Supp.2d at 556. Judge Pollack determines later in that opinion that the tests were not sufficiently challenging. Id. at 565.
As to the controlling standards, the Llera Plaza I court notes that there is not one set of criteria or set amount of points that are required to match before an examiner can declare that a latent print belongs to a particular person. Judge Hamilton best addressed this point when he discussed the testimony on this point.
[The expert] testified that there is no single quantifiable standard for reaching an identification opinion because of differences in both the quantity of characteristics shown in the latent print and the quality of the image. For example, if a latent print shows a relatively small portion of a fingerprint but has a very clear image-one that allows clear identification of level three detail such as the shapes of ridges, locations of pores, and the like, a reliable identification may still be possible even with relatively few level two "points."
Havvard, 117 F. Supp.2d at 853.
Finally, Judge Pollack notes that although fingerprint evidence is generally accepted, this acceptance is not enough to overcome the issues raised in the other four Daubert factors. After discussing these factors and listening to the testimony at the hearing, this court disagrees. The other factors do not point in favor of disallowing fingerprint evidence. Rather this court agrees with the Seventh Circuit and Judge Hamilton that "fingerprinting techniques have been tested in the adversarial system, that individual results are routinely subjected to peer review for verification, and that the probability for error is exceptionally low." United States v. Havvard, 260 F.2d 597, 601 (7th Cir. 2001).
II. The Experts in This Case Merritt also challenges the qualifications of the experts in this case: Detective Kurt Rincker and Sergeant Michael Knapp. Federal Rule of Evidence 702 requires a testifying expert witness to be "qualified as an expert by knowledge, skill, experience, training, or education." The Advisory Committee Notes further discuss the possibility that an expert will be qualified on the basis of experience alone because "[i]n certain fields experience is the predominant, if not sole, basis for a great deal of reliable expert testimony." If a witness is an expert based solely on experience, the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.
The Government also called Stephen B. Meagher at the February 19 hearing. Meagher is the chief of the Latent Print Unit of the FBI and testified at the hearing on the reliability of fingerprint analysis. Although it does not appear that Merritt challenges Meagher's qualifications, the court would note that Meagher testified in both Llera Plaza and Havvard and is qualified by both his training and experience.
The Government's first expert, Detective Kurt Rincker, is a detective with the Indianapolis Police Department who has attended two courses on the collection and preservation of latent fingerprints. He has eight years experience as an evidence technician and has dusted for prints on thousands of occasions. He has processed approximately 200 guns for fingerprints. The Government seeks to have Rincker testify as to how he lifted the fingerprints off the firearm in question and preserved them and as to the factors that cause a fingerprint to be left on a surface.
As discussed at the February 19 hearing, this court ruled that Rincker has "sufficient qualifications as a result of his knowledge, skill, experience, training, and education to give testimony, opinion testimony, about what a latent print is and the surfaces and other mediums in which he has had difficulty or even been unable to recover latent prints."
However, he does not have sufficient experience, training, or education to testify about "why prints are not always left when a person touches a surface in terms of the amounts of oil, the porousness, the roughness of the surface, whether there is dirt, things of that nature." As previously noted by this court, Rincker's expertise is in the location and lifting of prints, not the absence of prints. In that vein, Rincker will also be unable to testify about the effect of intervening events on any fingerprints that may have been left on surfaces.
Finally, Rincker will be unable to testify about the percentage of weapons from which he is able to successfully recover fingerprints. Rincker has only attempted to take prints off of 150 to 200 weapons, including the seventy-five weapons in this case. That is simply an insufficient sample to testify with any reliability as to percentages.
The Government also seeks to call Sergeant Michael Knapp. Knapp is the supervisor of the Latent Fingerprint Unit in the Records and Identification Branch of the Indianapolis Police Department. He has training and one year of experience lifting prints and has been evaluating fingerprints using the ACE-V method for eleven years. The Government seeks to have Knapp testify as to the ACE-V method and that the latent fingerprint from the Smith and Wesson was Merritt's. According to the February 19 hearing, Merritt is concerned that Knapp is not following the ACE-V method and that Knapp's brother verified Knapp's work in this case. Although the court can understand Merritt's concerns, these issues go to the weight of the testimony, not its admissibility.
Knapp has sufficient experience, training, and skill to be qualified as an expert in fingerprint analysis and the lifting of fingerprints.
III. Conclusion For the foregoing reasons, the Government's evidence on fingerprints will be admissible at trial. The Government's expert witnesses on fingerprints also will be allowed to testify, subject to the restrictions discussed above.
For the foregoing reasons, Defendant's Motion to Exclude Expert Testimony is DENIED.