| 704MITC2.PAS.vda
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
| UNITED STATES OF AMERICA
v.
BYRON C. MITCHELL |
:
:
CRIMINAL NO. 96-00407
: |
GOVERNMENT’S COMBINED REPORT TO THE
COURT AND
MOTIONS IN LIMINE CONCERNING FINGERPRINT
EVIDENCE
The United States of America, by its
attorneys Michael R. Stiles, United States Attorney for the Eastern District
of Pennsylvania, and Paul A. Sarmousakis, Assistant United States Attorney,
hereby files its combined Report to the Court and Motions In Limine.
The government submits that at the conclusion of a hearing conducted in
this matter and after submissions of proposed findings of fact and conclusions
of law, this Court will have before it a record sufficient upon which to
grant the government’s motions, and which justifies 1) the exclusion of
James E. Starrs as a defense expert witness, 2) the Court taking judicial
notice of the fact that fingerprints are unique to individuals and permanent,
and 3) government experts’ testimony as to data and fingerprint analyses
and comparisons establishing that both of the defendant’s thumb prints
were left on the stolen getaway car.
I. INTRODUCTION
Trial in this matter was scheduled
for Monday, November 2, 1998. On October 27, 1998, defendant filed two
motions in limine. On October 30, 1998, government counsel received
notice that the defense intended to call a purported "expert in the field
of fingerprint analysis [who] will testify to his opinion that there is
no scientific basis for a claim of individuality in the matching of fingerprints,
and that, as such, the identification made in this case is scientifically
invalid." EXHIBIT 1 After a conference call with the Court, which
resulted in a continuance of the trial date, the government was advised
that the basis of Starrs’ "opinion is 1) the absence of any scientific
research or studies which would support the claim of individuality in the
matching of fingerprints, and 2) the highly subjective nature of fingerprint
analysis." EXHIBIT 2 In its Response to the government’s Motion
for Continuance of the Hearing and Trial Date, the defense raised the issue
of whether or not a government fingerprint expert should be allowed to
testify at all and that "at the core of the government’s expert’s opinion
is the untested hypothesis that it is impossible for two or more people
to share as many as nine fingerprint characteristics in common." Defendant’s
response at 4-5. The government assumes that the term "fingerprint characteristics
in common" refers to points of identification.
Therefore, it appears that the defense
contends 1) that there is no scientific basis for a claim of individuality
of fingerprints, 2) that there is no scientific basis for the opinion that
it is impossible for two or more people to have in common as many as nine
fingerprint characteristics, 3) that there is no scientific basis to support
the hypothesis that nine matching characteristics are sufficient to make
an absolute identification, 4) that fingerprint analysis (which the government
believes to mean the identification stage, that is, the matching of fingerprint
characteristics, also known as points of identification) itself is highly
subjective and therefore unreliable, and 5) that therefore, the government’s
experts should be not be allowed to testify at trial.
The government argues that the only
"expert" who should be excluded at trial is Starrs himself. Indeed, it
is the defendant who is advancing "novel" expert testimony which is "fausse."
However, case law in this Circuit suggests that a sufficient record must
be established to sustain this Court’s exercise of its discretion in excluding
Starrs. What follows is a discussion of the law, the science of fingerprints
and Professor Starrs.
II. THE LAW
A. EVALUATING SCIENTIFIC EVIDENCE
AND THE EXPERT OFFERED TO OPINE ABOUT THE SCIENCE PRIOR TO DAUBERT
From 1923 until 1993, scientific evidence
and the experts offered by parties to testify about the scientific evidence
were generally controlled by Frye v. United States, 293 F. 1013
(D.C. Cir. 1923). It is beyond dispute that the Frye’s "general
acceptance" standard or test has been the controlling standard or test
used by the majority of the federal and state courts in the United States.
In fact, fingerprint evidence had been accepted by many courts even before
Frye
was decided. See II D, infra. The defendant is unable to credibly
assert that fingerprint science does not meet Frye’s "general acceptance"
standard which, as noted infra, is one of the flexible Daubert
factors to be considered by this Court.
B. THE DAUBERT EQUATION AND THE
KUMHO ANSWER
Daubert established that the Federal
Rules of Evidence, which became effective in 1975, superseded the general
acceptance test of Frye. 509 U.S. at 587-88. Rule 702 provides:
If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form
of an opinion or otherwise.
Although the Daubert Court limited
its discussions to the scientific context, it noted that the Rule "also
applies to technical or other specialized knowledge." Id. at 590
fn.8. In light of Kumho, the applicability of Daubert to
technical or other specialized knowledge is settled. In Kumho, the
district court excluded the expert and was reversed on appeal. The Supreme
Court in Kumho found the circuit court had erred, reversed, and
upheld the exclusion of the expert witness.
The Daubert Court found that
a rigid ‘general acceptance’ requirement
would be at odds with the ‘liberal thrust’ of the Federal Rules ... [that
did] not mean ... that the Rules themselves placed no limit on the admissibility
of purportedly scientific, [technical or other specialized knowledge] evidence
[nor] is the trial judge disabled from screening such evidence. To the
contrary, under the Rules the trial judge must ensure that any and all
scientific testimony or evidence admitted is not only relevant, but reliable.
Id. at 509 U.S. at 588-89 (footnotes
omitted).
The subject of an expert’s testimony
must be ‘scientific, [technical, or other specialized] knowledge’. The
adjective ‘scientific’ implies a grounding in the methods and procedures
of science. [The adjective ‘technical’ implies being derived from a technique
or from a speciality or from science The word ‘specialized’ implies a grounding
in training or employment in a special study or activity.] Similarly, the
word ‘knowledge’ connotes more than just subjective belief or unsupported
speculation. The term ‘applies to any body of known facts or to any body
of ideas inferred from such facts or accepted as truths on good grounds’.
Of course, it would be unreasonable to conclude that the subject of scientific
testimony must be ‘known’ to a certainty; arguably, there are no certainties
in science.
Id. at 589-90 (citation and footnote
omitted).
Daubert also held that "[R]ule
702 ... requires that the evidence or testimony ‘assist the trier of fact
to understand the evidence or to determine a fact in issue’. This condition
goes primarily to relevance." Id. at 591.
That [reliability and relevance]
are embodied in Rule 702 is not surprising. Unlike an ordinary witness,
... an expert is permitted wide latitude to offer opinions, including those
that are not based on firsthand knowledge or observation. ... Presumably,
this relaxation of the usual requirement of firsthand knowledge ... is
premised on an assumption that the expert’s opinion will have a reliable
basis in the knowledge and experience of his discipline.
Id. at 592 (emphasis added).
Faced with the proffer of expert
scientific, [technical, or other specialized] testimony, then, the trial
judge must determine at the outset, pursuant to Rule 104(a), whether the
expert is proposing to testify to (1) scientific, [technical, or other
specialized] knowledge that (2) will assist the trier of fact to understand
or determine a fact in issue. This entails a preliminary assessment of
whether the reasoning or methodology underlying the testimony is scientifically,
[technically, or otherwise] valid and whether that reasoning or methodology
probably can be applied to the facts in issue.
Id. at 592-593 (footnote omitted).
Rule 702 applies to more than "novel"
or "unconventional evidence":
Of course, well-established propositions
are less likely to be challenged than those that are novel, and they are
more handily defended. Indeed, theories that are so firmly established
as to have obtained the status of scientific law, such as the law of
thermodynamics, properly are subject to judicial notice under Federal Rule
of Evidence 201.
Id. at 592 fn.11 (emphasis added).
The Court listed several, but by no
means exclusive, criteria that courts can use in fulfilling their gatekeeper
responsibilities: 1) Can the theory or technique be tested and what are
the results; 2) Has the theory or technique been subjected to peer review
and publication, noting that publication is but one element of peer review;
3) What is the known or potential error rate of the theory or technique,
and 4) general acceptance. Id. at 593-94.
Finally, ‘general acceptance’ can
yet have a bearing on the inquiry. A ‘reliability assessment does not require,
although it does permit, explicit identification of a relevant scientific,
[technical or other specialized] community and an express determination
of a particular degree of acceptance within that community’. Widespread
acceptance can be an important factor in ruling particular evidence admissible,
and ‘a known technique which has been able to attract only minimal support
within the community,’ may properly be viewed with skepticism.
The inquiry envisioned by Rule 702
is ... a flexible one. Its overarching subject is the scientific, [technical
or other] validity and thus the evidentiary relevance and reliability--of
the principles
that underlie a proposed submission.
The focus, of course must be solely on principles and methodology not on
the conclusions that they generate.
Id. at 594-95.
Rule 403 permits the exclusion of
relevant evidence ‘if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading
the jury ....’ Judge Weinstein has explained: ‘Expert evidence can be both
powerful and quite misleading because of the difficulty in evaluating it.
Because of this risk, the judge in weighing possible prejudice against
probative force under Rule 403 of the present Rules exercises more control
over experts than over lay witnesses. Weinstein, 138 F.R.D., at 632.
Id. at 595
In reaching its decision, the Court
in Daubert noted:
[I]t is true that open debate is
an essential part of both legal and scientific analyses. Yet, there are
important differences between the quest for truth in the courtroom and
the quest for truth in the laboratory. Scientific conclusions are subject
to perpetual revision. Law, on the other hand, must resolve disputes finally
and quickly. The scientific project is advanced by broad and wide-ranging
consideration of a multitude of hypotheses, for those that are incorrect
will eventually be shown to be so, and that in itself is an advance. Conjectures
that are probably wrong are of little use, however, in the project of reaching
a quick, final, and binding legal judgment--often of great consequence--about
a particular set of events in the past. We recognize that, in practice,
a gatekeeping role for the judge, no matter how flexible, inevitably on
occasion will prevent the jury from learning of authentic insights and
innovations. That, nevertheless, is the balance that is struck by Rules
of Evidence designed not for the exhaustive search for cosmic understanding
but for the particularized resolution of legal disputes.
509 U.S. at 596-97.
Kumho not only held that Rule
702 and Daubert’s factors applied to all "expert" witnesses, it expanded
on the notions of reliability and the district court’s gatekeeping responsibility.
We conclude that Daubert's general
holding-- setting forth the trial judge's general 'gatekeeping' obligation--applies
not only to testimony based on 'scientific' knowledge, but also to testimony
based on 'technical' and 'other specialized' knowledge. We also conclude
that a trial court may consider one or more of the more specific factors
that Daubert mentioned when doing so will help determine that testimony's
reliability. But, as the Court stated in Daubert, 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. Rather, the
law grants a district court the same broad latitude when it decides how
to determine reliability as it enjoys in respect to its ultimate reliability
determination. See General Electric Co. v. Joiner, 522 U. S. 136, 143
(1997) (courts of appeals are to apply 'abuse of discretion' standard when
reviewing district court's reliability determination). Applying these standards,
we determine that the District Court's decision in this case--not to admit
certain expert testimony--was within its discretion and therefore lawful.
Kumho Tire Company, Ltd. v. Carmichael,
1999 W.L. 152275 (U.S.) at 2-3 (emphasis added).
In Kumho, the district court
initially strictly applied the Daubert factors, but upon reconsideration,
noted that the Daubert factors must be applied flexibly. Even so,
the district court excluded the proffered expert testimony on causation.
Id.
at 4.
* * *
In Daubert, this Court held that
Federal Rule of Evidence 702 imposes a special obligation upon a trial
judge to 'ensure that any and all scientific testimony ... is not only
relevant,
but reliable.' 509 U. S., at 589. The initial question before us is
whether this basic gatekeeping obligation applies only to 'scientific'
testimony or to all expert testimony. We, like the parties, believe that
it applies to all expert testimony.
Id. at 4 (emphasis added).
Neither is the evidentiary rationale
that underlay the Court's basic Daubert 'gatekeeping' determination limited
to 'scientific' knowledge. Daubert pointed out that Federal Rules 702 and
703 grant expert witnesses testimonial latitude unavailable to other witnesses
on the 'assumption that the expert's opinion will have a reliable basis
in the knowledge and experience of his discipline.' Id., at 592 (pointing
out that experts may testify to opinions, including those that are not
based on firsthand knowledge or observation). The Rules grant that latitude
to all experts, not just to 'scientific' ones.
Id. at 5.
Experts of all kinds tie observations
to conclusions through the use of what Judge Learned Hand called 'general
truths derived from ... specialized experience.' Hand, Historical and Practical
Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40, 54 (1901).
And whether the specific expert testimony focuses upon specialized observations,
the specialized translation of those observations into theory, a specialized
theory itself, or the application of such a theory in a particular case,
the expert's testimony often will rest 'upon an experience confessedly
foreign in kind to [the jury's] own.' Ibid. The trial judge's effort
to assure that the specialized testimony is reliable and relevant can help
the jury evaluate that foreign experience, whether the testimony reflects
scientific, technical, or other specialized knowledge.
We conclude that Daubert's general
principles apply to the expert matters described in Rule 702. The Rule,
in respect to all such matters, 'establishes a standard of evidentiary
reliability.' 509 U. S., at 590. It 'requires a valid ... connection to
the pertinent inquiry as a precondition to admissibility.' Id., at 592.
And where such testimony's factual basis, data, principles, methods, or
their application are called sufficiently into question, see Part III,
infra, the trial judge must determine whether the testimony has 'a reliable
basis in the knowledge and experience of [the relevant] discipline.' 509
U. S., at 592.
Id. at 5 (emphasis added).
Daubert makes clear that the factors
it mentions do not constitute a 'definitive checklist or test.' Id., at
593. And Daubert adds that the gatekeeping inquiry must be ' 'tied to the
facts' ' of a particular 'case.' Id., at 591 (quoting United States v.
Downing, 753 F. 2d 1224, 1242 (CA3 1985)). We agree with the Solicitor
General that '[t]he factors identified in Daubert may or may not be pertinent
in assessing reliability, depending on the nature of the issue, the expert's
particular expertise, and the subject of his testimony.' ... The conclusion,
in our view, is that we can neither rule out, nor rule in, for all cases
and for all time the applicability of the factors mentioned in Daubert,
nor can we now do so for subsets of cases categorized by category of expert
or by kind of evidence. Too much depends upon the particular circumstances
of the particular case at issue.
Id. at 6.
In certain cases, it will be appropriate
for the trial judge to ask, for example, how often an engineering expert's
experience-based methodology has produced erroneous results, or whether
such a method is generally accepted in the relevant engineering community.
Likewise, it will at times be useful to ask even of a witness whose expertise
is based purely on experience, say, a perfume tester able to distinguish
among 140 odors at a sniff, whether his preparation is of a kind that others
in the field would recognize as acceptable.
We must therefore disagree ... that
a trial judge may ask questions of the sort Daubert mentioned only where
an expert 'relies on the application of scientific principles,' but not
where an expert relies 'on skill- or experience-based observation.' We
do not believe that Rule 702 creates a schematism that segregates expertise
by type while mapping certain kinds of questions to certain kinds of experts.
Life and the legal cases that it generates are too complex to warrant so
definitive a match.
To say this is not to deny the importance
of Daubert's gatekeeping requirement. The objective of that requirement
is to ensure the reliability and relevancy of expert testimony. It is to
make certain that an expert, whether basing testimony upon professional
studies or personal experience, employs in the courtroom the same level
of intellectual rigor that characterizes the practice of an expert in the
relevant field. Nor do we deny that, as stated in Daubert, the particular
questions that it mentioned will often be appropriate for use in determining
the reliability of challenged expert testimony. Rather, we conclude that
the trial judge must have considerable leeway in deciding in a particular
case how to go about determining whether particular expert testimony is
reliable. That is to say, a trial court should consider the specific factors
identified in Daubert where they are reasonable measures of the reliability
of expert testimony.
The trial court must have the same
kind of latitude in deciding how to test an expert's reliability, and to
decide whether or when special briefing or other proceedings are needed
to investigate reliability, as it enjoys when it decides whether that expert's
relevant testimony is reliable. Our opinion in Joiner makes clear that
a court of appeals is to apply an abuse-of-discretion standard when it
'review[s] a trial court's decision to admit or exclude expert testimony.'
... That standard applies as much to the trial court's decisions about
how to determine reliability as to its ultimate conclusion. ... Thus, whether
Daubert's specific factors are, or are not, reasonable measures of reliability
in a particular case is a matter that the law grants the trial judge broad
latitude to determine. See Joiner, supra, at 143. And the Eleventh
Circuit erred insofar as it held to the contrary.
Id. at 6 (emphasis added; citations
omitted).
In sum, [Kumho found] Rule 702 grants
the district judge the discretionary authority, reviewable for its abuse,
to determine reliability in light of the particular facts and circumstances
of the particular case.
Id. at 9.
The importance of the district court’s
gatekeeping responsibilities was emphasized by Justice Scalia in his concurring
opinion specifically addressed to that issue:
I join the opinion of the Court,
which makes clear that the discretion it endorses--trial-court discretion
in choosing the manner of testing expert reliability--is not discretion
to abandon the gatekeeping function. I think it worth adding that it is
not discretion to perform the function inadequately. Rather, it is discretion
to choose among reasonable means of excluding expertise that is fausse
and science that is junky.
Id. at 9 (emphasis added).
C. THE DEFENDANT’S AUTHORITY
The defendant argues that United
States v. Velasques, 64 F.3d 844 (3d Cir. 1995), mandates that his
expert be allowed to testify at trial. He is simply wrong. In Velasques,
the district court did not find as a fact or take judicial notice of the
uniqueness of handwriting. Handwriting analysis can not summarily be equated
with the science of fingerprints. Since the uniqueness and permanence of
fingerprints is an established fact, defendant’s expert should be precluded
from testifying to the contrary. In Velasques, the expert, a professor
of law and a "critic" of handwriting analysis, was offered to assist the
jury in understanding the limitations of the government’s handwriting testimony.
In this case, defendant’s proffered testimony will only confuse the issue,
mislead the jury and result in unfair prejudice to the government.
What was at issue in Velasques
was the defense’s opportunity to criticize the standards employed in handwriting
analysis. Indeed, the government conceded in Velasques "that evidence
that handwriting analysis is not scientifically credible ‘goes to [the]
weight’ that such handwriting evidence should receive." Id. at 848.
Here, the government vehemently opposes
the notion that Starrs’ proposed testimony should be admitted and go to
the weight the fingerprint evidence should be accorded. While defendant
offers through his purported expert an attack on fingerprint evidence,
such testimony must be ruled inadmissable since it is well-established
that fingerprints are unique to an individual and permanent. The Court
should take judicial notice of these facts. For the Court to allow Starrs
to testify to a contrary view would only mislead the trier of fact. Moreover,
as will be more fully discussed, infra, Starrs is wholly unqualified
to offer an opinion about the comparison and identification stage in fingerprint
analysis.
Velasques cannot and does not
stand for the proposition that Starrs or someone in his stead can attack
every theory of science, including those "so firmly established as ...
scientific law ... properly ... subject to judicial notice." Daubert,
509 U.S. at 592 n.11. The government has requested the Court to take such
judicial notice and has and will supply the Court with the necessary information
to support that finding under Rule 201(d) (the "court shall take
judicial notice)" (emphasis added).
Of course, this pleading puts the defendant
on notice, and the Daubert hearing will give him the opportunity
to be heard. Rule 201(e).
D. PRIOR COURT DECISIONS ON FINGERPRINTS
No Court decision could be found which
has rejected the science of fingerprints and the fact that fingerprints
are unique and permanent. The reported cases on fingerprints generally
fall into: 1) those where fingerprint evidence is admissible, 2) those
where defense challenges to fingerprint evidence were summarily rejected
by the courts and 3) those where the courts have taken judicial notice
of the fact that no two individuals have the same fingerprints. Judicial
notice was taken by the Court in many cases. Court’s have "upheld the admissibility
of fingerprint testimony in words amounting to judicial recognition." Moenssens’
Scientific
Evidence, §8.09 at 519 and cases cited at 519, n.6.
III. FRICTION RIDGE FORMATION -
UNIQUENESS AND PERMANENCE
A. INTRODUCTION
The term "fingerprint" is used
to describe the arrangement of ridged skin on the palmar (palm) side of
the fingers. The permanent ridged skin arrangement is a result of complex
physiological events, both genetic and environmental, which take place
during the gestation period of the human skin development. This ridged
skin on the end joint of the finger is the most common area from which
fingerprints are recorded, classified and used to determine individuality.
However, ridged skin also appears on the finger’s lower joints, the entire
palmar surface of the hands and the soles of the feet, all of which can
be used to establish individuality.
The ridged skin on the end joint of
the fingers generally form certain patterns which are commonly referred
to as arches, loops or whorls. This description of friction ridges is generally
referred to as Level 1 Detail. EXHIBITS 5-1 through 5-3. While these terms
are used to describe the general flow of the ridges, they do not by themselves
provide the means to individualize. This skin on the end joint of the finger
contains numerous ridges, not all of which are continuous flowing ridges.
In fact, only very few are continuous flowing ridges, whereas, most of
the ridges result in the creation of characteristics which are labeled
with terms such as "ending ridge," "bifurcation," "enclosure" and "dot."
It is these features and their position, direction, and relationship that
provides uniqueness and the means to individualize. This description of
friction ridges is generally referred to as Level 2 Detail. EXHIBITS 5-4
through 5-6. The ability to individualize can also be established by using
the ridges themselves. The ridge edge shape, sweat pores and other
information (Level 3 Detail) can be
utilized along with Level 2 Detail to effect positive identifications and
individualize. EXHIBITS 5-7 through 5-9.
B. EMBRYONIC VOLAR PADS AND FINGERPRINT
PATTERNS
The physiology of human ridged skin
creation begins with the development of volar
(pertaining to, or the same side as,
the palm of the hand or the sole of the foot) pads on the palms, fingers,
soles and toes. EXHIBIT 3-1. These volar pads begin the process of creating
ridged skin. As the volar pads regress, the friction ridges and their pattern
formation begin to take shape and become more defined.
The fingerprint Level 1 Detail (arch,
loop, whorl) is greatly influenced by the size, shape and direction of
the volar pad. Much of this activity is controlled through genetic code
and explains why twins and family members tend to have similar overall
fingerprint classifications. As the pads regress and the dermal and epidermal
skin begins to form the ridges, the embryonic environment has a direct
effect on the random development of the friction ridges and their relationships.
This process provides fingerprint Level 2 Detail and is used to distinguish
between each finger’s friction ridge arrangement, that is, unique points
of identification. It is Level 2 Detail that permits identical twins’ fingerprints
to be individualized, that is, shown to be unique.
The dermal layer of skin is the basis
for the friction ridge appearance on the epidermis and maintains the blueprint
of how future skin growth is generated. This is the basis for permanency
of the friction ridges, Levels 1, 2 and 3 Detail. As the body sloughs off
old dead skin, the new skin is generated from this blueprint. EXHIBITS
3-3 and 3-4. The ability of the dermal skin to continuously provide this
reproduction of the ridge’s same shape and relationship is based on understanding
the creation of the friction ridge units.
There exists significant studies of
this process in both the medical and fingerprint fields. It is through
scientific observation, studies and mathematical analysis occurring for
over the last 100 years that fingerprints have been determined to be unique
and permanent, thus providing the basis to individualize and
effect positive identifications.
C. THE FRICTION RIDGE COMPARATIVE
PROCESS
The use of friction ridge impressions
for forensic purposes falls into two categories. The first is the latent
fingerprint developed on crime scene evidence. The objective is to identify
the finger, thus the individual, responsible for depositing the latent
impression on the evidence. The second is the set of all ten fingerprints
recorded during an arrest. The objective is to determine the true identity
of the individual by searching against a repository of fingerprints and
identifying the individual with an existing known fingerprint record.
The scientific method for performing
friction ridge comparisons is the same as that used by many other scientific
comparative processes. The four major steps are 1) analysis, 2) comparison,
3) evaluation, and 4) verification. Although some practitioners within
the fingerprint
expert community use slightly different
terminology to describe the unique approach with each step, the concepts
are exactly the same.
The first step, analysis, requires
the expert to examine and analyze all variables influencing the friction
ridge impression in question. This begins with an understanding of friction
ridged skin and the transition of the three dimensional skin structure
to a two dimensional image. When examining latent fingerprints, several
factors must be accounted for and understood. Some of these factors are
the material upon which the latent print has been deposited, the development
process(es), pressure distortion, and external elements (blood, grease,
etc.). The quantity and quality of the latent print ridges influences the
examiners ability to perform the next phase. The conclusion of the analysis
process is a determination as to whether sufficient information exists
to proceed to the next phase.
The comparison process introduces
the known exemplar with which the latent print is to be compared. At this
point, there is also another analysis phase taking place. This analysis
is of the known exemplar in an effort to determine the suitability for
achieving the conclusion stated above. It is possible that the known exemplar
may contain fingerprint images that are too heavily inked or smudged, and
thereby unreliable, thus preventing a conclusive comparison. The comparison
process begins with determining the general ridge flow and shape (Level
1 Detail) in an effort to properly orient the latent print with a corresponding
area of the known exemplar fingerprints. This is generally followed by
selecting key focal characteristics (Level 2 Detail), understanding their
position, direction and relationship and then comparing this formation
with the formations in the known exemplar. The quality and quantity of
this information directly affects the ease or difficulty of this process.
The result of the comparison is the
evaluation
process or making a conclusion. The general fingerprint community refers
to the conclusions drawn as being one of three choices. First, the two
impressions (latent fingerprint and the known fingerprint) were made by
the same finger of the same person. Second, the latent impression was not
made by any of the fingers of the exemplar fingerprints. And third, a conclusive
comparison could not be achieved, generally due to the lack of adequate
clarity or the absence of comparable area in the known exemplar. In order
to establish an identification decision, this process must insure that
all of the fingerprint details are the same and maintain the same relationship,
with no existing unexplainable differences.
The final process is verification.
The general rule is that all identifications must be verified by a second
qualified expert. This verification process by a second examiner is an
independent examination of the two fingerprint impressions (latent fingerprint
and known exemplar fingerprint) applying the scientific methodology of
analysis, comparison and evaluation described above.
D. TWINS
Because fingerprints have a genetic
basis and therefore influenced by heredity, human twins’ fingerprints tend
to have very similar fingerprint classifications, Level 1 Detail. However,
because of the human skin development process explained above in Part A,
the friction ridge arrangement, Level 2 Detail, is unique to each finger
of each twin. There have been numerous studies conducted of twins and each
has concluded that their fingerprints are different and unique. Unfortunately,
there have been some misleading statistical studies which indicate a high
degree of conformity between twins’ fingerprints, including one study that
indicated that as many as 31 common characteristics existed between a set
of twins’ fingerprints. But when one clearly understands the process used
by the authors of these studies, and after reviewing the actual fingerprints,
the claim of 31 common characteristics can be quickly dismissed. The actual
fingerprints claimed to have 31 common characteristics can easily be determined
as different and unique. EXHIBIT 4-1.
Since the capability of cloning has
been recently achieved, the natural question posed by fingerprint experts
was whether the cloned individual would have the same fingerprints as those
of the donor. It is known that most primates have ridged skin and certain
monkeys display fingerprints similar to humans. (Monkeys’ fingerprints
are always whorls.) A study was performed of a monkey "cloned," using the
nuclear transfer process, to determine whether they possess the same fingerprints.
The conclusion was that the fingerprints are different and unique. EXHIBITS
4-2 and 4-3 (two monkeys’ right fingers and palm print).
E. ERROR RATE
The error rate for the science of friction
ridges being unique and permanent is zero because of the random development
of the friction ridges.
However, it is known through observation
that there are some fingerprints that do not fall within common classifications
(arch, loop, whorl) and that have an appearance of scrambled friction ridges.
Heredity is a factor, but the occurrence may be more associated with disease.
Examples of this are dissociated ridges and dysplasia. An example of dissociated
ridges appears in EXHIBIT 3-11. Even though these fingerprints are not
classifiable in the normal sense, they are still unique and permanent.
Methods used to develop latent prints
do not contribute to the existence of an error since they only provide
the means to visualize the print’s existing ridge arrangement. These methods
do not negate the ability to properly assess the details required to arrive
at a proper comparative
conclusion. By following the scientific
methodology of analysis, comparison, evaluation and verification, the error
rate remains zero.
F. GENERAL ACCEPTANCE
Fingerprints, and the more general
use of friction ridge impressions (palms and soles), have been in use as
a means to individualize since the late 1800's, and have been accepted
and used in the United States courts since the early 1900's. E.g., People
v. Jennings, 252 Ill. 534, 96 N.E. 1077 (1911). The FBI began using
fingerprints in 1924 to maintain a national repository of criminal’s known
fingerprints. In 1933, the FBI began conducting latent print examinations
to support criminal investigations. Almost all developed countries today
use fingerprints as a means to individualize. The underlying basis for
this world-wide acceptance is that fingerprints (friction ridge arrangements)
are unique and permanent. The overpowering evidence of this acceptance
is that for over 100 years, there have never been found two different fingers
to have the same fingerprint.
A survey (EXHIBITS 6-1, 6-3, and 6-5,
copy of survey sheets ) was conducted in 1999 which confirms the overwhelming
acceptance of fingerprint science. The three-part survey was sent by the
FBI to all 50 states, Canada and the United Kingdom. Part A is a short
seven-question survey on the use of fingerprints for the year 1998. These
results show over 67 million known 10-print fingerprint records on file.
Over 8 million ten-print fingerprint searches have been conducted and over
460,000 latent fingerprint searches occurred. There has never been an instance
where two fingerprints from different fingers or persons have been found
to be identical. EXHIBIT 6-2.
Part B of the survey requested a 10-print
fingerprint card search against each agency’s 10-print fingerprint repository.
There was no other individual identified in over 67 million 10-print fingerprint
records. Two latent fingerprints were requested to be searched against
the agency’s 10-print repository. Even with this significantly reduced
amount of fingerprint information, no other individual was identified.
EXHIBIT 6-4.
Part C of the survey is a more in-depth
continuation of Part A of the survey. The survey requested detailed information
regarding the history of each agency’s use of fingerprints and whether
over time they had ever experienced two different individuals to have the
same fingerprints, either from the ten-print or latent print operations.
The survey showed that from the earliest U.S. state (New York, 1904) and
from the United Kingdom’s beginning in 1901 until the present, there has
never been an instance where two fingerprints from different fingers or
persons have been found to be identical. EXHIBIT 6-6.
The general acceptance of fingerprints,
and the more general use of friction ridge impressions (palms and soles),
as a means to individualize is without question. The survey specifically
asked the question whether any two different individuals have been found
to have the same fingerprints (Survey A, questions 3 and 5; Survey C, questions
9, 10a, and 19) and whether they specifically accept the fundamental principles
of uniqueness and permanence as scientific basis for using fingerprints
as a means to individualize (Survey A, Question 7). Without exception,
the responses affirmed that friction ridges are unique and permanent, and
that there has never been an instance where two fingerprints from different
fingers or persons have been found to be the same.
G. STATISTICAL DATA
Since the earliest studies of fingerprints
in the late 1800's and early 1900's, many individuals have attempted to
develop a statistical model and calculate the probability of two fingerprints
having the same friction ridge arrangement. A review of these efforts has
revealed that only various elements of Level 2 Detail were used, yet even
with this limited approach the probabilities of two individuals having
the same fingerprint far exceed the world’s current population (1 to about
64 thousand millions; 1 to the ninth power of 50, a sum more than 1 million
times the estimated 1930s world’s human population of 1.4 billion; and
see other mathematical computations). It appears there has never been a
study performed which accounts for the use of both Level 2 and 3 Detail.
It is believed that if this data were included into these probability calculations
that the number represented would be yet more beyond comprehension.
In an effort to provide a more current
assessment of this issue, the FBI conducted a statistical analysis of its
approximately 35 million automated criminal ten-print fingerprint repository.
The data used came from the newly developed Automated Fingerprint Identification
System (AFIS). The analysis included a review by classification and a test
to calculate the probability of two fingers having the same ridge arrangement.
The fingerprint classification distribution (Level 1 Detail to include
pattern and subordinate classification ridge counts) determined that the
most populated "bin" contains only 831 (out of 34,564,832 records) individuals
possessing the same classification formula for all ten fingers. There are
34,533,673 individuals that have unique 10-print classifications. EXHIBIT
6-7.
A 50K vs. 50K Fingerprint Comparison
Test was performed using the first 50,000 left sloped loop fingerprints
(1 digit irrespective of finger position). The AFIS system matchers were
used to compare each fingerprint against the 50,000 file which resulted
in 2.5 billion comparisons. The results of the calculations indicate that
the mathematical probability of any other fingerprint in the data set being
identical to any particular finger is less than 1 in 10 to the 97th power
(1 chance in 1 followed by 97 zeroes). Once again, it must be noted that
this data utilizes only Level 2 Detail and does not account for Level 3
Detail. The number will only be greater if Level 3 Detail are included,
i.e, the probability of having two fingerprints from different fingers
being the same would be even less. When this information is extrapolated
to the world’s population (estimated to be 5.9 billion) the probability
is 59 chances in 10 to the 88th power, or 59 chances in 1 followed by 88
zeroes, or 1 chance in 1 followed by 86 zeros.
A second comparison test was performed
using the same 50,000 set. However, the number of AFIS minutiae (Level
2 Detail) was reduced to the comparable number of an average AFIS latent
print search. The same match process was used and the results indicate
that the probability of a minutia subset of a non-mate fingerprint being
identical to a minutia subset of any particular fingerprint is less than
1 chance in 10 to the 27th power (1 chance in 1 followed by 27 zeros) for
small numbers of minutiae (in this case, small means four), decreasing
to less than 1 chance in 10 to the 97th power (1 chance in 1 followed by
97 zeroes) for larger numbers of minutiae (in this case, larger means greater
than eighteen).
Using the same data as above for the
population of the earth, the approximate chance of any two minutia subsets
of fingerprints on earth being identical is 59 chances in 10 to the 18th
power or 59 chances in 1 followed by 18 zeroes, or 1 chance in 1 followed
by 16 zeroes.
H. NATURAL LAWS AND PRINCIPLES SUPPORTING
INTERSPECIES AND INTRASPECIES DIFFERENTIATION/VARIATION AND APPLICABILITY
OF NATURAL LAWS AND PRINCIPLES TO FORENSIC SCIENCE
Variation in life is a generally accepted
aspect of nature. The tremendous variation in the hereditary material -
DNA - in populations and the impact of the environment on the expression
of the genes of an individual make for an infinite number of possible combinations.
This concept is so well appreciated that it is a common tenet among scientists,
and the topic can be found in basic text books on genetics, biology, and/or
evolution. An example of one of the many well-respected text books regarding
this matter is "Evolution" by M.W. Strickberger (Jones and Bartlett
Publishers, 1990). The text contains
discussions on the genetic material and the myriad ways it can be manifested
in individuals and populations.
Consider the potential variation at
the genetic level in humans. There are over 3 billion nucleotides (i.e.,
letter sites) in the human genetic code in every nucleated cell. There
are four possible letters in the genetic code that can occupy each site.
Therefore, the number 4 to the 3 billionth power combinations are possible,
which is substantially more than all people who have ever lived. Obviously,
not all sites will be variable; but it is estimated that at least 5 million
sites differ between any two individuals (and this figure does not consider
the different letters that can occupy the site and repetitive DNA). Most
genes are polymorphic - that is there are variable forms in a population.
Two-thirds to three-fourths of the genes may be polymorphic. The main force
for this variation is mutation; even with modest estimates of the rate
of mutation, at least one mutation will occur in each conception. Thus,
variation is maintained.
To consider how many combinations of
polymorphism can occur, the following example is given. A single gene with
only four alleles (or genetic forms; for example, the alleles of eye color
can be thought of as blue, green, brown, and gray) can produce 10 types.
Only 100 genes with four alleles each can produce the number 10 to the
100th power combinations. Even this number exceeds the number of individuals
in any species. This example pales in comparison, when one realizes that
the human carries approximately 100,000 genes (and recall that two-thirds
to three-fourths of the genes may be polymorphic).
In addition, the proteins, which are
the expressed products of genes, have tremendous variability, because there
are at least 20 different protein subunits (i.e., amino acids) that can
be used to build a protein. These expressed products make up the individual
and the combination is
impacted by environmental effects,
such as temperature, pressure, chemicals, nutrients, etc. It is not a passive
relationship between the organism (or population) and the environment.
Although identical twins carry the
same basic heredity blueprint, they demonstrate differences that, barring
a somatic mutation, must be due to the environment. Twins are not the same
exact height or weight, one can be left-handed while the other is right
handed, and they have different fingerprints. Even if a few genes were
involved in fingerprint development, a tremendous amount of pattern variability
can occur. Moreover, this genetic variability potential is over-shadowed
by the environmental effect on fingerprint patterns.
IV. THE GOVERNMENT’S EXPERTS
At the Daubert hearing, the government
will call experts to reconfirm the facts that fingerprints are unique to
individuals and are permanent, and that the methodology and practice of
fingerprint comparison and identification are grounded in scientific principles.
As a general matter, each expert will state that fingerprints are unique
and permanent and that fingerprint comparison and identification are grounded
in scientific methods and principles. EXHIBITS 7-1 and 7-2, the publications
and articles contained in the expert witnesses’ CVs, and the reference
materials in EXHIBITS 11 through 14 list most of the reference materials
any of the government’s experts might rely on in forming their opinions.
All of this evidence will establish and expand upon the summary contained
in Part III herein. What follows is the identity of the Government’s expert
witnesses and their areas of expertise.
A. David R. Ashbaugh
Staff Sgt. Ashbaugh (CV at EXHIBIT
8-1) has 31 years of law enforcement experience, 25 of which has been spent
working and researching in the fingerprint field, and is a qualified expert
in the field. An in-depth overview of fingerprint science and testimony
can be found in Ashbaugh’s book, Quantitative-Qualitative - Friction Ridge
Analysis - an Introduction to Basic and Advanced RIDGEOLOGY (Published
in Draft). EXHIBIT 10.
B. Stephen B. Meagher
Meagher (CV at EXHIBIT 8-2) is a Latent
Print Unit Chief in the Forensic Analysis Section of the FBI’s Laboratory
Division. He has 27 years experience, is a qualified expert and is a Lead
Specialist of the FBI Disaster Squad [the primary function is to examine
the disaster decedent’s friction ridged skin (fingerprints, palm prints
and footprints) in an effort to identify each
disaster victim]. Meagher’s testimony
will center on the "general acceptance and "number of points" issues and
computer and statistical data.
C. David L. Grieve
Grieve (CV at EXHIBIT 8-3) coordinates
training for the Forensic Sciences Command of the Illinois State Police
in Carbondale, Illinois. He has 34 years experience in the fingerprint
field and is a qualified expert.
D. Pat A. Wertheim
Wertheim (CV at EXHIBIT 8-4) has over
23 years in law enforcement, has many years experience in the fingerprint
field, and is a qualified expert.
E. Kenneth R. Moses
Moses (CV at EXHIBIT 8-5) has over
30 years law enforcement experience, has over 27 years experience in the
fingerprint field, and is a qualified expert.
F. Bruce Budowle
Dr. Budowle (CV at EXHIBIT 8-6) is
an expert in the following fields: Genetics, Population Genetics, Statistics,
Quality Assurance/Standards (including error rates) and Validation of Forensic
Science Applications. Dr. Budowle’s testimony will center on how his areas
of expertise and opinions support uniqueness, the methodology of fingerprint
science, and the validation of statistical data.
G. Edward Raymond German
Special Agent German (CV at EXHIBIT
8-7) has 28 years experience and is a qualified expert in the fingerprint
field. He is employed in the Latent Print Division of the U.S. Army Criminal
Investigation Laboratory in Forest Park, Georgia, and is the Chairman of
the Fingerprint Identification Subcommittee of the International Association
for Identification (IAI).
H. Kenneth O. Smith
Smith (CV at EXHIBIT 8-8) has over
33 years experience and is a qualified expert in the fingerprint field.
He is presently a Senior Forensic Latent Print Analyst at the U.S. Postal
Inspection Service’s National Laboratory in Virginia.
V. THE DEFENSE EXPERT
A. THE CHALLENGED EVIDENCE
Byron Mitchell was charged in an indictment
relating to an armored truck robbery that occurred in Philadelphia, Pennsylvania.
The government’s evidence at the first trial of this matter showed that
the stolen getaway car which was used during the robbery, was abandoned
by the three or more robbers. The car was recovered the same morning and
through notes contained therein, which listed the license plate number
of Byron Mitchell’s, then girlfriend’s, and now wife’s car, Byron Mitchell
was identified the same day. At trial it was established that a fingerprint
expert from FBI headquarters traveled to Philadelphia and processed evidence,
including the stolen getaway car. Positive identification of Byron Mitchell’s
left thumb print on the driver’s side exterior door handle and his right
thumb print on the knob of the column gear shift lever was established.
The defendant's attack on the "science"
of fingerprints is both misguided and also wrong. The reference materials
supporting uniqueness and permanence are so extensive that limiting the
materials is a challenge in and of itself. Indeed, even the defendant’s
"expert," law professor James E. Starrs, has acknowledged that
The practical uses in law enforcement
of a system of fingerprint identification derive from three well established
premises: (1) the friction ridge patterns that begin to develop during
fetal life remain unchanged during life, and even after death, until decomposition
destroys the ridged skin; (2) the patterns differ from individual to d\individual,
and even from digit to digit, and are never duplicated in their minute
details; and, (3) although all patterns are distinct in their ridge characteristics,
their overall pattern appearances have similarities which permit a systematic
classification of the impressions.
From childhood to maturity, the friction
skin patterns grow and expand in size. As an adult grows old, the finger
patterns may shrink in size, but the characteristic points used to determine
their individuality do not undergo any natural change in relation to one
another. Rare cases of mutilation, or the occurrence of some skin disease,
such as leprosy, may partially or totally destroy the epidermal ridges.
If the destruction is only partial, it will not affect the value of impressions
for identification purposes, since complete patterns are not needed.
The friction skin patterns are formed
through a process of differential growth in the dermis layer of the skin.
If the finger is superficially hurt or mutilated to a depth of not more
than approximately one millimeter, the injury will reflect itself in the
pattern as a temporary scar. Upon healing of the scarred area, however
the pattern will return exactly to its same image as before the injury.
If the injury inflicted is more serious and reaches into the dermis layer
of the skin to damage the ridge molding "dermal papillae," a permanent
scar will remain after the healing process is completed. Such permanent
scars do not affect identification, as long as sufficient undamaged skin
remains.
Andre A. Moenssens, James E. Starrs et
al., Scientific Evidence in Civil and Criminal Cases § 8.05
at 502 (4th ed. 1995). The defendant cannot now turn the absence of conflict
or controversy in the fingerprint world, as evidenced by judicial opinions
and the total lack of criticism or contrary opinion that fingerprints are
unique and permanent, into evidence of conflict or controversy.
B. PROFESSOR STARRS LACKS SUFFICIENT
EDUCATION, TRAINING AND EXPERIENCE IN THE FIELD OF FINGERPRINTS TO QUALIFY
AS AN EXPERT IN THAT FIELD
The defendant's effort to create controversy
where none exists and thus to justify his "novel position," focuses on
the claimed expertise of Professor James E. Starrs. Professor Starrs himself
has offered his CV to establish that he is qualified to testify as an expert
in the fingerprint field.
The defendant's proffer in letters
in support of Professor Starrs' expertise is both inadequate and misleading.
It is inadequate because it does not offer factual support for Professor
Starrs’ contention that he is a "forensic scientist" with training and
experience in any field -- much less -- fingerprint analysis.
It is misleading because it attempts
to package Professor Starrs' training, experience and expertise as a law
professor and pass it off as evidence of expertise in scientific and technical
areas. In fact, as defense counsel seems to acknowledge, Professor Starrs'
knowledge of fingerprints, such as it is, derives from his activities as
a law professor, not from any formal training or experience as a forensic
scientist or from technical or other specialized knowledge in the fingerprint
field.
1. Professor Starrs' Background
and Training.
As his vita discloses, James Edward
Starrs is a Professor of Law and Forensic Sciences at the George Washington
University in Washington, D.C. He graduated from St. Johns University in
1958 with an undergraduate degree in English and a law degree. The following
year, he received a masters degree in law from New York University. Since
1964, Professor Starrs has apparently not practiced but taught law at George
Washington University Law School in Washington, D.C. In 1980, he was also
given the title of Professor of Forensic Science on the faculty of the
University's Columbia School of Arts & Sciences.
Professor Starrs' vita discloses no
formal education in any science and none is referenced in his biographical
entry in "Who's Who." He has no reported training in the fingerprint field,
including comparison analysis. He has no published articles in scientific
journals detailing his own experiments, investigations of or experience
with fingerprint evidence. Moreover, neither the defense nor Professor
Starrs (in his vita) lists a single instance in which Professor Starrs
has been qualified as an expert in the fingerprint field.
Despite Professor Starrs’ lack of education,
training, and experience in the "relevant" field, the defendant maintains
that Starrs should be recognized as an expert because he is a "forensic
scientist." This argument is preposterous for two reasons: First, accepting
Professor Starrs' definition of a scientist as one who postulates a hypothesis
and then tests it through experiments (see EXHIBIT 9-2 at 13-14), no evidence
exists to establish that he is a scientist. His lengthy vita does not note
any scientific experiments Starrs has conducted or any studies he has published
about any such experiments.
Second, even accepting arguendo that
Professor Starrs is a "forensic scientist," he has not shown that he is
a scientist with training and experience in the relevant field. Just as
a scientist with a background and training in astrophysics could not claim
expertise in cell biology simply by virtue of his status as a "scientist,"
so Professor Starrs cannot use the title "forensic scientist" as a basis
for claiming expertise in any field of science which touches on forensic
evidence and his fancy. Indeed, Professor Starrs should be the first to
admit that expertise in one area does not translate into expertise for
"other, unrelated purposes." See Starrs, Frye v. United States
Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule
702, 26 Jurimetrics J. 249, 258 (1986).
2. Professor Starrs’ Writings.
An examination of Professor Starrs'
publications, which are numerous, offers no additional support for the
proposition that he is a fingerprint expert or a scientist of any kind.
His vita lists seventy-five published articles on legal and historical
issues. None of those articles describes any forensic examinations conducted
by Professor Starrs or any conclusions he reached based on such examinations.
Indeed, none of the articles appears to describe any independent research
he did in any area of forensic science.
The defendant and Starrs both advance
Starrs' citation in Daubert. The reference is to Justice Blackmun's
opinion for the majority in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). At issue in Daubert, a product liability
suit alleging that certain birth defects were caused by the drug Benedictin,
was whether the admissibility of expert scientific testimony in a federal
trial was governed by the common law Frye standard or, instead,
the standard under the Federal Rules of Evidence. The Court held that in
federal trials the Federal Rules of Evidence, and not Frye, set
the appropriate standard.
Daubert thus presented a discrete
legal issue on a point of evidence for resolution by the Court. While it
is true that the Court cited one article written by Professor Starrs in
its discussion about evidentiary reliability, 509 U.S. at 590 n.9, and
about relevance, Id. at 591, that article -- as might be expected - pertained
to the legal issue before the Court. Neither Daubert nor the article
by Professor Starrs it cites has anything whatsoever to do with fingerprints
or with the methodology underlying fingerprints. Justice Blackmun did not
favorably cite Professor Starrs' work as a forensic scientist or his work
in the fingerprint arena. Rather, Justice Blackmun's citations to Professor
Starrs' law review article reflect an appreciation of his ability to turn
a colorful phrase about a legal -- as opposed to a scientific -- issue.
As a law professor, Starrs is able to express his opinions in print, but
this does not give him license to testify to opinions about the science
of fingerprint analysis as an expert witness.
Professor Starrs is neither a scientist
nor a forensic scientist.
3. Professor Starrs’ Textbook Discussion
of Fingerprints.
Professor Starrs' purported expertise
in the area of fingerprint analysis is not advanced by his co-authorship
of a textbook entitled Scientific Evidence in Civil and Criminal Cases
(hereinafter Scientific Evidence), and, more specifically, a chapter
on fingerprint evidence in the most recent edition of that text. In considering
whether Professor Starrs' co-authorship of this textbook demonstrates his
claimed expertise in the field of fingerprint identification, the authors'
own statement about the scope and purpose of the text -- a primer on forensic
evidence written by and for lawyers -- is revealing:
This book was written to assist trial
lawyers in obtaining a concise understanding of the scope of the most commonly
encountered types of expert testimony and the nature of the results which
may be expected from the specialists .... Although Scientific Evidence
is
not a technical treatise for the specialist in any given area, it does
give the expert an overview of the legal status in that expert's specialty
....
Moenssens’ Scientific Evidence at
iii-iv. Thus the authors of Moenssens’ Scientific Evidence --
Professor Starrs being one of them
-- specifically cautioned their readers not to consider the book a "technical
treatise."
Given this disclaimer, and given, as
we have shown, the complete absence of any formal education, training,
and experience of Starrs in the field of fingerprints, we are left only
with the argument of Professor Starrs -- as set forth in the textbook --
"In light of ... Daubert, ... generally accepted techniques like
fingerprint identification are now vulnerable to challenge." Moenssens’
Scientific
Evidence § 8.09 at 519. His posture in this litigation makes this
a self-fulfilling prophecy.
In sum, James Starrs lacks sufficient
education, training, and experience in the field of fingerprints to allow
him to qualify as or testify as an expert under Daubert and Kumho.
VI. CONCLUSION
Notwithstanding the instant attack,
the government respectfully suggests that the science of fingerprints is
alive and well and so it should remain. To paraphrase Benjamin Franklin,
"[I]n this world nothing is certain but [fingerprints] death and taxes."
Letter to Monsieur Leroy, 1789, reprinted in Bartlett’s Familiar Quotations
(Passages, Phrases and Proverbs Traced to Their Source), 1901 ed.
WHEREFORE, considering all of the foregoing
and the evidence to be elicited at the Daubert hearing, the government
respectfully requests that the Court 1) take judicial notice of the facts
that fingerprints (friction ridge formations) are unique to individuals
and are permanent, 2) exclude Professor James E. Starrs at trial and 3)
admit the testimony of the government’s fingerprint experts at trial.
Respectfully submitted,
MICHAEL R. STILES
United States Attorney
RONALD H. LEVINE
Assistant United States Attorney
Chief, Criminal Division
PAUL A. SARMOUSAKIS
Assistant United States Attorney
CERTIFICATE OF SERVICE
I hereby certify that a true and correct
copy of the Government's Combined Report to the Court and Motions In Limine
Concerning Fingerprint Evidence have been served upon the following counsel
on the date set forth below:
Leigh M. Skipper, Esquire
Defender Association of Philadelphia
Federal Court Division
Suite 800 - Lafayette Building
437 Chestnut Street
Philadelphia, PA 19106-2414
_______________________________
PAUL A. SARMOUSAKIS
Assistant United States Attorney
DATE: ___________________
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