Chapter 6 - § 6.3 • FINGERPRINTS

• Jurisdiction: Colorado

§ 6.3 • FINGERPRINTS

§ 6.3.1—Introduction

Fingerprint evidence can be used to tie a defendant to a particular location or object, and is most often used in criminal cases. Fingerprint records from prior criminal convictions or otherwise stored in FBI and other databases may be used as a known set of fingerprints to compare to fingerprints obtained from the defendant or a crime scene. Crim. P. 41.1 authorizes a court to order a suspect to provide his or her fingerprints if there are reasonable grounds, not amounting to probable cause, to suspect the individual committed the offense. Colorado courts widely accept fingerprint evidence as reliable and, therefore, a separate Shreck hearing on the reliability of the science is usually unnecessary. People v. Wilson, 2013 COA 75. A fingerprint expert may testify that two fingerprints were made by the same person and/or that they are a "match." People v. Gomez, 537 P.2d 297 (Colo. 1975); Wilson, 2013 COA 75.

Practice Pointer
Although the science of matching full and well preserved fingerprints of the kind that are often used in jail bookings is well established, there is some debate as to the reliability of matching latent or partial prints under what is known as the ACE-V process. See United States v. Baines, 573 F.3d 979 (10th Cir. 2009); United States v. Mitchell, 365 F.3d 215 (3d Cir. 2004). Practitioners should be aware of a 2009 report by the National Research Council, Strengthening Forensic Science in the United States: A Path Forward (National Academies Press 2009) questioning the validity of analyses undertaken in a number of important areas of forensic evidence, including some kinds of fingerprint analysis.

In order to introduce fingerprint identification evidence, three witnesses will ordinarily be needed: the latent or comparison print gatherer, the known print gatherer, and the fingerprint examiner. A description of the witnesses and a brief synopsis of the process follow.

§ 6.3.2—Witnesses Needed to Introduce Fingerprint Identification Evidence

Witness No. 1: The Individual Who Gathered Latent Prints at the Scene

Because fingerprint evidence would usually be introduced in criminal trials, this individual will ordinarily be a law enforcement officer. The officer's duties and, therefore, the scope of examination of the officer, will differ depending on whether the print is located on a hard surface or on a porous surface.

Prints on Hard Surfaces

The officer will often have used fingerprint powder to develop "latent" (i.e., not visible to the naked eye) prints from hard or smooth objects at the scene of the crime or that would otherwise connect the defendant to the crime. Once the latent print is visible, the officer uses tape to "lift" the print. If a photographer is present, photos of the print may be taken before the lift is made in case the print is smeared or otherwise damaged during the lift process. After the print is lifted with the tape, it is affixed to a "fingerprint lift card." This card is similar to an index card but may be colored if a contrast is needed. After lifting each print, the officer ordinarily initials and dates it and writes on the card the exact location where it was obtained. Once the print is attached to the fingerprint lift card, it is generally referred to as a "lift." Some professionals may also be able to use newer techniques to lift or document the print, including digital analysis.

Prints on Porous Surfaces

Fingerprints can also be developed by an expert from porous surfaces such as paper and cardboard cartons by the use of chemicals. If the officer suspects that a perpetrator may have touched such porous items, he or she will preserve and seal the entire item and send it to the lab with a request that the lab technician process the item to determine if there are any identifiable prints on it. Items forwarded to a fingerprint expert for identification (the lifts or porous items) are generally referred to collectively as the "questioned items."

Connecting the Print with a Suspect

If the officer has a suspect in the case, he or she usually will notify the fingerprint expert of the suspect's identity. The Federal Bureau of Investigation (FBI) laboratory in Washington, D.C. has millions of fingerprints on file so that the suspect's prints can usually be quickly compared to the questioned items. If the police officer believes that nonsuspects also touched the questioned items, a set of prints for each nonsuspect is often sent to the expert with the questioned items for purposes of elimination. Additionally, the investigators could apply for a court order under Crim. P. 41.1 to require the defendant to submit to a fingerprinting for comparison.

At the trial, the officer would identify the lifts or porous items he or she gathered and explain how he or she did so and that he or she forwarded them to the fingerprint expert. These questioned items would be initially marked at trial for identification. They would not qualify as trial exhibits until they have been connected to the defendant. Before they can be entered as trial exhibits, they must be properly matched up with "known" prints of the defendant.

Witness No. 2: The Individual Who Took the Defendant's "Known" Prints

At trial, the prosecutor must next establish that the "known" prints of the defendant (i.e., the fingerprint card bearing the defendant's inked prints) are the defendant's. Merely establishing that the defendant's name and a signature are on the fingerprint card is not sufficient. An individual (the "fingerprinter") must testify that he or she was present and either took them himself or herself or saw the defendant's fingerprints being taken, and that the inked prints on the card are definitely the defendant's.

In some cases, such as habitual criminal proceedings, the prosecutor must prove the defendant is the same person who was convicted of a prior crime. In such cases, certified records of booking sheets and/or Department of Corrections records that contain the fingerprints and identifying information of the defendant may be introduced without the presence of the person who took those prints. CRE 901(b)(7); CRE 902(1) and (4); People v. Martinez, 83 P.3d 1174 (Colo. App. 2003); People v. Copeland, 976 P.2d 334 (Colo. App. 1998).

Practice Pointer
The best practice is to obtain a new set of fingerprints to identify the defendant at trial rather than use a set already on file. Introduction of the past prints may cause undue prejudice under CRE 403 if it would tend to make the jury think the defendant had an otherwise inadmissible criminal record. Additionally, having a witness on hand who personally

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