Summary
relying on the Seventh Circuit's opinion in Havvard and admitting fingerprint testimony
Summary of this case from U.S. v. Llera PlazaOpinion
Criminal Action No. 01-071 SECTION: "R" (2)
July 31, 2001
ORDER AND REASONS
Before the Court is defendant's motion in limine seeking to exclude expert testimony on latent fingerprint evidence. The defendant further requests a pre-trial hearing on that motion. For the reasons stated below, the Court denies defendant's motions.
I. Background
Defendant Donald Reaux was charged with bank robbery in violation of 18 U.S.C. § 2113 (a) and (d), and with using or carrying a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924 (c). Before trial, Reaux filed a motion seeking to bar the government from offering an expert opinion on whether Reaux's fingerprints matched a latent fingerprint recovered from the purported getaway car. Reaux contends that opinion evidence on latent fingerprint identification does not meet the standards of reliability for admissibility as expert testimony under Daubert v. Merrell Dow Pharmaceticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999). Reaux also seeks an evidentiary hearing on the motion.
II. Analysis
Rule 104 of the Federal Rules of Evidence provides that the district court shall determine preliminary questions regarding the qualifications of witnesses. See FED. R. EVID. 104(A); United States v. Nichols, 169 F.3d 1255, 1263 (10th Cir.), cert. denied, 120 S.Ct. 336 (1999) (holding that " Daubert challenges, like other preliminary questions of admissibility, are governed by Fed.R.Evid. 104"). The test for the admissibility of expert testimony is set forth in Rule 702 of the Federal Rules of Evidence. See Daubert, 509 U.S. at 587, 113 S.Ct. at 2794. The rule permits an expert witness "qualified . . . by knowledge, skill, experience, training, or education" to testify when specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. FED. R. EVID. 702. In Daubert, the Supreme Court held that Rule 702 requires that the trial judge act as a "gatekeeper" to ensure that "any and all scientific testimony or evidence admitted is not only relevant, but reliable." 509 U.S. at 589, 113 S.Ct. at 2795. See Kumho, 526 at 146-47, 119 S.Ct. at 1174 (clarifying that Daubert gatekeeping function applied to all forms of expert testimony)
The district court has considerable discretion to admit expert testimony under Rule 702. See Snap-Drape, Inc. v. Commissioner of Internal Revenue, 98 F.3d 194, 197 (5th Cir. 1997), cert. denied, 522 U.S. 821 (1998); United States v. Garcia, 86 F.3d 394, 400 (5th Cir. 1996), cert. denied, 519 U.S. 1083 (1997) (quoting United States v. Townsend, 3 F.3d 262, 270 (5th Cir. 1994)). This discretion extends not only to the decision whether particular expert testimony is reliable, but also to how to test an expert's reliability, including whether to hold evidentiary hearings. See Kumho Tire, 526 U.S. at 152, 119 S.Ct. at 1176. See also Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th Cir. 1998), cert. denied, 119 S.Ct. 1456 (1999) ("[w]e have not required that the Daubert inquiry take any specific form"); Nichols, 169 F.3d at 1262 (finding that Daubert does not mandate an evidentiary hearing); United States v. Griffith, 118 F.3d 318, 323 (5th Cir. 1997) (holding that district court committed harmless error by failing to explicitly qualify a DEA agent as an expert and by not requiring government to establish her qualifications at beginning, rather than midway through, her testimony); Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1124-25 (9th Cir. 1994) (finding that the district court was not required to hold formal Rule 104 (a) hearing to determine proposed expert's qualifications, and could make a preliminary determination instead). As the Supreme Court recognized in Kumho Tire, the district court has authority to avoid unnecessary reliability proceedings "where the reliability of an expert's methods is properly taken for granted" and to conduct "appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises." Kumho Tire, 526 U.S. at 152, 119 S.Ct. at 1176. Regardless of the procedure chosen, the Daubert gatekeeping function requires this Court to undertake a two-part analysis to determine whether the proffered testimony is reliable and whether it is relevant.
1. Reliability
Defendant makes a general challenge on the reliability and admissibility of fingerprint evidence. He relies on a law review article which questions the scientific basis of fingerprint expert opinions, and on an article that criticizes the admissibility of fingerprint evidence since the field does not employ statistical modeling. See Michael J. Saks, Merlin and Solomon: Lessons from the Law's Formative Encounters with Forensic Identification Science, 49 HASTINGS L.J. 1060, 1106 (1998) ; DAVID STONEY, FINGERPRINT IDENTIFICATION IN MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY § 21-2.3.1 (David L. Faigman et al. eds., 1997).
In determining whether the testimony of a proffered expert is reliable, the Court must assess whether the reasoning or methodology underlying the testimony is valid. See Smith v. Borden, Inc., 188 F.R.D. 257, 259 (M.D. La. 1999) (citing Curtis v. M S Petroleum, Inc., 174 F.3d 661, 668 (5th Cir. 1999). Daubert identified a number of factors to analyze the reliability of an expert's testimony, including whether his theory or technique has been tested, whether it has been subjected to peer review and publication, the existence of high known rates of error and whether the theory or technique used to develop the theory is generally accepted within the relevant community. 509 U.S. at 592-94, 113 S.Ct. at 2796-97. In Kumho Tire, the Supreme Court emphasized that the test of reliability is "flexible," and that Daubert's list of specific factors does not necessarily, nor exclusively, apply to all experts in every case. 526 U.S. at 149-50, 119 S.Ct. at 1175. The Court further stressed that the Daubert factors may be relevant to the reliability of experience-based testimony, and not just scientifically based testimony.See id. at 1176.
Here, the government has identified FBI Fingerprint Specialist Ambrose M. Sampson as its proposed expert witness in the field of fingerprint analysis. Sampson's curriculum vitae shows that he has been employed by the FBI since 1966, where he was trained in the Technical Section of the Identification Division in identifying inked fingerprints. After working in this field until 1973, he underwent extensive testing to join the Latent Fingerprint Section. There he was trained in latent fingerprint development and identification, including the requirements for providing forensic testimony in this area. His job requires him to develop latent fingerprints from crime scenes and to compare them to inked fingerprints of known individuals. Sampson has been qualified as an expert in fingerprint identification numerous times, in both federal and state court. In this case, he produced a report that identified a latent fingerprint on the door handle of the getaway car as that of the defendant by comparing it with defendant's inked fingerprint.
The Seventh Circuit recently upheld expert opinion evidence on fingerprint identification against a Daubert challenge. See United States v. Havvard, 2001 WL 804134, *3 (7th Cir. July 18, 2001). In Havvard, the defendant argued that latent fingerprint comparisons are not reliable because the government's basic premise that all fingerprints are unique remains unproven, and because there are no objective standards to determine how much of a latent fingerprint is necessary to conduct a comparison or for evaluating an individual examiner's comparison. Applying Daubert, the court noted that fingerprint evidence has been successfully used and tested by the adversary process for 100 years in criminal trials. Id. at *4. Indeed, the myriad cases in which expert witness testimony of this nature has been admitted indicate that the comparison method of identifying latent fingerprints is generally accepted. Further, the Havvard court upheld the district court's finding that the results of individual fingerprint analysis have been routinely subjected to peer review for verification and that the probability of error is exceptionally low. Id. See United States v. Havvard, 117 F. Supp.2d 848, 854-55 (S.D. Ind. 2000). Based on the same reasoning, this Court finds that the fingerprint opinion testimony in issue satisfies the Daubert reliability test. Further, Sampson's experience, training and the nature of the proffered testimony convince the Court that a pretrial evidentiary hearing is not necessary to determine the reliability of Sampson's testimony. See United States v. Joseph, 2001 WL 515213, *1 (E.D. La. May 14, 2001) (holding that an evidentiary hearing was not necessary because "fingerprint analysis has been tested and proven to be a reliable science over decades of use for judicial purposes"). Indeed, defendant has not cited, nor has the Court found, a single decision excluding this type of evidence under Daubert, despite a spate of challenges. See e.g., United States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996); Joseph, 2001 WL 515213, *1; United States v. Martinez-Cintron, 136 F. Supp.2d 17 (D.P.R. 2001); United States v. Cooper, 91 F. Supp.2d 79, 82-83 (D.D.C. 2000)
2. Relevance
The second prong of the Daubert inquiry requires the Court to determine whether the expert's reasoning or methodology can be properly applied to the facts in issue, in other words, whether it is relevant. See Smith, 188 F.R.D. at 260 ( citing Curtis, 174 F.3d at 668). It is well recognized that fingerprint comparison requires expert testimony. See Blount v. Keane, 1992 WL 210982, *11 (E.D. N.Y. 1992). The Second Circuit has held that fingerprint evidence constitutes ample circumstantial proof on which a trier of fact could find a defendant guilty. See United States v. Spencer, 439 F.2d 1047, 1049 (2d Cir. 1971)
Defendant objects to evidence that his fingerprints were allegedly identified on a vehicle used in connection with an alleged bank robbery. The government argues the fingerprint evidence is clearly relevant to connect the defendant to the alleged bank robbery. This Court agrees. An analysis of the defendant's fingerprints and the fingerprints found at the crime scene will assist the jury in determining the defendant's alleged involvement in the robbery. See Joseph, 2001 WL 515213 , at *2. Accordingly the testimony is relevant.
III. CONCLUSION
For the reasons outlined above, the Court DENIES defendants' motions to exclude the testimony of the government's fingerprint expert and to hold a pretrial hearing on the admissibility of the expert's testimony.