The Challenge of Fingerprint Comparison Opinions in the Defense of a Criminally Charged Client

• Publication year: 2010

The Challenge of Fingerprint Comparison Opinions in the Defense of a Criminally Charged Client

Michael Mears & Terese M. Day

Introduction

Just before 2:00 a.m. on September 19, 1910, an unknown man slowly walked down South State Street in Chicago until he came to West 104th Street. He turned west onto the street and kept walking until he came to the home of Clarence Hiller. Near the front door of the Hiller house he spotted an outside stairway that led to an upstairs bedroom. Grasping the handrail on the stairway, he slowly walked up the stairs and entered the bedroom occupied by Clarence Hiller's ten-year-old daughter, Florence. As the intruder attempted to fondle her, she awakened and screamed. Clarence Hiller raced into the bedroom to assist his daughter, and after a brief struggle, the assailant shot him twice before fleeing back down the stairway.[1]

Police apprehended Thomas Jennings near the residence a short time later and charged him with the murder of Clarence Hiller. He proclaimed his innocence but the facts made him a prime suspect: he had only recently been released from Joliet State Prison after serving time for burglary, scratches on his arms showed signs of a recent struggle, and he did not live in the neighborhood.[2] He went to trial in the Criminal Court of Cook County on the charge of murder.

During the trial, the prosecutors called several witnesses who testified about their comparison of photographs of finger marks left on the stairway railing with enlarged photographs of fingerprints taken from Thomas Jennings.[3] One of the witnesses, Edward Foster, testified that he was an inspector with the Ottawa, Canada Police Department and that he had studied the subject of fingerprint identification at Scotland Yard. He also testified that he had taken about 2,500 fingerprints during his career with the Ottawa Police Department. In his opinion, the photographs of the fingerprints taken from the railing of the stairway were the same as the fingerprints taken from Thomas Jennings. Another witness, Michael Evans, told the Court that he had been working with the Bureau of Identification in the Chicago, Illinois Police Department for more than twenty-seven years. He told the court that he had been using the system of fingerprint impressions for identification purposes since 1905. He too testified that the photograph of the fingerprint from the stairway railing was the same as the fingerprint taken from Thomas Jennings. The Supreme Court of Illinois took the case on appeal.

Chief Judge Orrin N. Carter, writing for the court, noted that the issue of the admissibility of fingerprint comparisons had never been raised in any cases known to the court and that no statutes authorized or forbade such evidence, nor did any statutes or cases from any other jurisdiction deal with the subject.[4] Justice Carter recognized:

This class of evidence is admitted in Great Britain. In 1909 the Court of Criminal Appeals held that finger prints might be received in evidence, and refused to interfere with a conviction below though this evidence was the sole ground of identification . . . . While the courts of this country do not appear to have had occasion to pass on the question, standard authorities on scientific subjects discuss the use of finger prints as a system of identification, concluding that experience [in Great Britain] has shown it to be reliable.[5]

Based upon the fingerprint comparison evidence, the Illinois Supreme Court upheld the conviction and death sentence of Thomas Jennings.[6] Despite his continuing assertions of innocence, Jennings was sentenced to die at five o'clock in the afternoon of the sixteenth day of February 1912.[7]

In 1912, the American judicial system faced serious questions about the efficacy and scientific reliability of fingerprint comparison evidence, leading the Illinois court to seek authority for the admission of such evidence from judges in Great Britain. Ninety years later, the question of the admissibility of fingerprint comparison evidence was once again the subject of legal debate and deliberation.[8] In 2002, another American judge, facing a serious challenge to the scientific reliability of fingerprint comparison evidence, resorted to the British courts for authority to avoid dealing with the question of the scientific reliability of this type of evidence.[9]. The courts have once again relied on what is being done in the English courts without questioning what is being done, and not done, in the crime laboratories of state and federal police agencies.

On January 7, 2002, in the Eastern District Court of Pennsylvania, Federal District Court Judge Louis H. Pollak[10] ruled that a fingerprint expert:

[W] ill not be permitted to . . . present "evaluation" testimony as to their "opinion" (Rule 702) that a particular latent print is in fact the print of a particular person. The defendants will be permitted to present their own fingerprint experts to counter the government's fingerprint testimony, but defense experts will also be precluded from presenting "evaluation" testimony. Government counsel and defense counsel will, in closing arguments, be free to argue to the jury that, on the basis of the jury's observation of a particular latent print and a particular rolled print, the jury may find the existence, or the nonexistence, of a match between the prints.[11]

The government's attorneys, astonished and nonplused by the ruling, quickly moved for a reconsideration of the judge's order. They warned that "prosecutorial effectiveness, both in the case at bar and in other cases in which fingerprint identification could be expected to play a significant role, would be seriously compromised by the preclusion of opinion testimony at the ‘evaluation' stage ‘that a particular latent print is in fact the print of a particular person.'"[12] Sixty-five days later, despite the fact he had found fingerprint comparison evidence to lack scientific reliability, Judge Pollak reversed himself and reissued his opinion, granting the government's request.[13] In a lengthy mea culpa, Judge Pollak resorted to a review of English history for precedent and his personal observations of the government's fingerprint expert for authority:

I have concluded that arrangements which, subject to careful trial court oversight, are felt to be sufficiently reliable in England, ought likewise to be found sufficiently reliable in the federal courts of the United States, subject to similar measures of trial court oversight. In short, I have changed my mind. "Wisdom too often never comes, and so"—as Justice Frankfurter admonished himself and every judge—"one ought not to reject it merely because it comes late."

. . . .

At the upcoming trial, the presentation of expert fingerprint testimony by the government, and the presentation of countering expert fingerprint testimony by any of the defendants . . . will be subject to the court's oversight prior to presentation of such testimony before the jury, with a view to insuring that any proposed expert witness possesses the appropriate expert qualifications and that fingerprints offered in evidence will be of a quality arguably susceptible of responsible analysis, comparison and evaluation.[14]

Judge Pollak explained his self-reversal as the result of changing the focus of his inquiry from the status of the fingerprinting system used by the FBI as a scientific discipline to its status as a technical discipline.[15] By adjusting his focus, he was merely modifying "the angle of doctrinal vision," and his strict application of the test for scientific reliability was more flexible under the Kumho Tire application to a "technical expert" than it might have been under Daubert.[16] Judge Pollak reasoned that his adjusted vision (some might say result-oriented vision) was the result of his newfound knowledge that British law courts are comfortable with the manner in which their judges supervise fingerprint comparison evidence.[17] Judge Pollak explained that he now felt comfortable with fingerprint comparison evidence.[18] He reversed his previous opinion and vacated his previous order.[19]

The first round bell has now sounded and those who would adamantly assert the scientific nature of fingerprint evidence and their opponents are regrouping for round two. The government has drawn a proverbial line in the sand and rightly so. For decades, the government has touted the infallibility of state expert opinions about fingerprint comparisons but now serious questions are arising not only about the infallibility of the fingerprint expert's abilities, but the entire science of fingerprint analysis.

Litigation will continue, notwithstanding the almost vitriolic nature with which the government experts in this field have attacked those who would question the scientific reliability of fingerprint evidence. No other expert is allowed to state conclusively that a known object is an absolute match to an unknown object. Not even the scientifically touted DNA testing allows experts to make such absolute assertions. The question now becomes whether the courts will subject fingerprint evidence to scientific reliability tests or allow it to continue in the manner of mythically invoked incantations from soothsayers.

This article examines the scientific reliability of fingerprint evidence and its implications for the criminal defense practitioner. Part I provides an overview of the history of fingerprint analysis and the present controversy about fingerprint comparison evidence. Parts II, III, and IV explore whether fingerprint analysis and the accompanying comparisons can meet the required tests for scientific reliability. The remaining sections demonstrate that the underlying premises currently used to justify fingerprint identification have questionable scientific validity and fail the test elucidated by the United States Supreme Court for the admission of scientific evidence.

I. Primer...